JUDGMENT ARUN KUMAR GOEL, J. —This appeal is preferred by Lekh Raj- convict (hereinafter referred to as the Appellant), against the judgment passed by Shri Shamsher Singh, Additional Sessions Judge, Shimla. By means of impugned judgment dated 16-10-1996 passed by trial court in Sessions Trial No. 10-S/7 of 1996, the appellant has been found to be guilty under Sections 302 and 452 of the I.P.C., and has been directed to undergo life imprisonment under Section 302 of the I.P.C. and for one year under Section 452 I.P.C, and both these sentences have been ordered to run concurrently. 2. Brief facts giving rise to this case as per prosecution case against the appellant are that on 11-12-1995 at about 4.50 p.m. he knocked the door of the house of the deceased Surinder Pal Singh at Summer Hill, Shimla. On the door having been knocked by the appellant, it was opened by PW-1 Narinder Pal Singh who is brother of the deceased. This witness had been a student of H.P. Institute of Engineering and Technology at the relevant point of time alongwith Ashwani Kumar PW-2 his friend. When the door was opened, appellant is stated to have inquired the whereabouts of the deceased from PW-1, when the latter informed that the deceased was inside the house in the adjacent room, where he was changing his clothes. During this time, the appellant had entered the room of PW-1 and then straightway went to the adjacent room where deceased was changing his clothes and he started quarrelling with the deceased. At this time appellant gave multiple fist blows on the body of the deceased, as a consequence whereof the deceased fell down on the double bed. On seeing this, PW-1 Narinder Pal Singh entered the room and tried to rescue his brother when the appellant according to prosecution had taken out knife Ex. P-8 and had inflicted an injury in the chest portion of the deceased. Appellant had been caught-hold of from behind by PW-1 but he inflicted another 2 knife blow in the stomach region of the deceased, besides causing hurt with knife to PW-1 which resulted in weakening of the grip of PW-1. Thereafter, the appellant managed to escape, from the scene of occurrence and was followed by PW-1 brother of the deceased upto some distance. Thereafter, the appellant managed to escape, from the scene of occurrence and was followed by PW-1 brother of the deceased upto some distance. At this time injured PW-1 Narinder pal Singh saw his mother Smt Chanchal Rani PW-12 approaching towards her house when the latter was informed by PW-1 regarding injuries having been caused to him as well as to his brother Surinder Pal Singh by the appellant. On the asking of PW-12 to take out the deceased for being taken to University M.O., Ambulance was sent for and the deceased was taken to University M.O. at Summer Hill. PW-12 found that the condition of her deceased son was getting critical and had collapsed soon after reaching the University dispensary. Efforts were made by PW-8 Dr. S.K. Sharma, Medical Officer Incharge H.P. University dispensary, Summer Hill, Shimla to revive the deceased but without any result. The doctor had also given oxygen inhalation to the deceased but of no significance. In these circumstances, PW-8 referred Surinder Pal Singh to I.G.M.C. where he was taken to casualty but Surinder Pal Singh was declared dead at about 5.30 p.m. in the hospital. At the time when the deceased was being taken to University Dispensary by his mother PW-12, injured PW-1 Narinder Pal Singh was rushed to report the matter to Police Station West, Shimla where he lodged FIR Ex. PW-1/A against the appellant at 5.30 p.m. on 11-12-1995. 3. On the basis of the registration of the F.I.R. investigation was undertaken by Inspector Jeet Ram, S.H.O. Police Station (West) Shimla (PW-15). Appellant was arrested in the evening of the date of occurrence i.e., 11-12-1995, when his blood stained shirt (Ex. P-1) was taken into possession by the police in the presence of PW-1 Narinder Pal Singh and PW-2 Ashwani Kumar, vide memo Ex. PW-1/B. Appellant was further interrogated and on 15-12- 1995 in the presence of Shankar Dass PW-3 and one Hukam Chand, when he made disclosure statement vide Ex. PW-1/A regarding his having concealed the knife Ex. P-8 in the forest area of Summer Hill and appellant offered to get the same recovered. Pursuant to the disclosure made and on having been led by the appellant, knife Ex. P-8 was recovered by PW-16 Karam Chand, A.S.I. Incharge, Police Post, Summer Hill and it was taken into possession vide recovery memo Ex. P-8 in the forest area of Summer Hill and appellant offered to get the same recovered. Pursuant to the disclosure made and on having been led by the appellant, knife Ex. P-8 was recovered by PW-16 Karam Chand, A.S.I. Incharge, Police Post, Summer Hill and it was taken into possession vide recovery memo Ex. PW 4/A in the presence of PW-4 Yashwant Bhardwaj and one other person Mohammad Afzal. After the knife Ex. P-8 had been recovered, it was duly sealed by the police with seal impression K’ Police had also got PW-1 Narinder pal Singh complainant medically examined from Dr. L.R. Verma Medical Officer D.D.U. Hospital (PW-7) on 11-12-1995 itself at 9.35 p.m. This witness had taken into possession clothes of the injured Narinder Pal Singh PW-1 i.e., shirt Ex. P-9, Vest Ex. P-10, which were duly sealed by him. PW-1 had sustained two abrasions in the region of stomach and chest and the nature of these injuries were simple having been caused with blunt weapen. Postmortem was conducted upon the dead body of the deceased Surinder Pal Singh on a request having been made by the police, it was carried out by Dr. Suresh Sankhyan (PW-6), Associate Professor of Forensic Medicines, I.G.M.C. In the opinion of the doctor, the death was due to injury antemortem to heart leading to excessive haemorrhage and shock combined with collapse of lungs. Ex. P-2 to Ex. P-8 clothes of the deceased were taken into possession and were duly sealed. As per prosecution case, clothes of the deceased and PW-1 as well as knife Ex. P 8 had been sent to Chemical Examiner, who had submitted his report vide Ex. PX. 4. After completion of investigation, challan was filed under Sections 452 and 302 I.P.C. against the appellant before the trial Magistrate. Since offence under Section 302 I.P.CV. was exclusively triable by the court of Sessions, accordingly the appellant was committed to the said court by the trial Magistrate vide order dated 20-3-1996 and the case was assigned by the Sessions Judge, Shimla to Additional Sessions Judge, Shimla. 5. After the receipt of case on assignment, the trial court was satisfied that there are prima facie circumstances to frame charge against the appellant under Sections 452 and 302 of the I.P.C. and accordingly charge sheet was framed on 27-5-1996, to which the appellant pleaded not guilty and claimed trial. 6. 5. After the receipt of case on assignment, the trial court was satisfied that there are prima facie circumstances to frame charge against the appellant under Sections 452 and 302 of the I.P.C. and accordingly charge sheet was framed on 27-5-1996, to which the appellant pleaded not guilty and claimed trial. 6. By means of impugned judgment the appellant has been convicted on both aforesaid charges, which conviction and sentence has been questioned by the appellant in the present appeal. 7. In order to sustain its case, prosecution examined as many as 16 witnesses, material witnesses of whom are PW-1 Narinder Pal Singh and PW-2 Ashwani Kumar, who were the eye witnesses of the whole incident, Besides them Dr. Suresh Sankhyan (PW-6) who had performed post-mortem examination and had found the following ante-mortem injuries on the body of the deceased : “List of Antemortem injuries" 1. Punctured wound 1.80 cm x 75 cm obliquely placed in the left side of abdomen 4 cm from mid line above the umbilicus 7 1/2 cm. from umbilicus and 13 cm. from Ant. Sup. iliac spine. The would has triangular or wedge shape with pointed end downwards. The margins of the would showed abrasion i.e., abraded margins. Track of the injury was obliquely backwards, upwards and left to right and pierced through ant. wall of the stomach. 1 cm. in length and landed in the cavity of stomach. Post wall of stomach was normal. 2 Wedge or triangular punctured wound 1.5 cm. x. 75 cm. i the chest in the midline 14 cm. from eternal norch 8 1/2 cm. from left nipple and 9 1/2 cm. from right nipple, obliquely placed and cutting through sternum, pericardium and right ventricular wall and landing in the right and slightly left to right. Cut in the vernacular wall (right side) 1.80 cm. long. Wedge shaped, 5 cm. from the apex and 2 cm. from I/V. sulcus. Cut injury in the pericardium. Wedge shaped-1.80 cm. 3. Scrach abrasion 1.25 cm. long on the dorsum of right hand, covered with scab-brownish in colour." He has also proved the post-mortem report submitted by him vide Ex. PW-6/A. Dr. LR. Verma is PW-7, who had examined PW-1 Narinder Pal Singh and had found the following injuries on his person : “1. There was a small V shaped abrasion right side hypochondriu regins and approximately 10 cm. away from umblicus. PW-6/A. Dr. LR. Verma is PW-7, who had examined PW-1 Narinder Pal Singh and had found the following injuries on his person : “1. There was a small V shaped abrasion right side hypochondriu regins and approximately 10 cm. away from umblicus. margins were not sharp. The corresponding area of Banyan (Vest) and shirt is torn and blood stained. 2. There was an oblique abrasion right side lower part chest. Approximately 3 cm. away from injury No. 2 and it was tapering towards lateral aspect. Air entry to the chest was normal. There were no crepitus." Besides this, he has proved the medico-legal certificate issued by him after examination of PW-1 vide Ex. PW-7/A. PW-8 is Dr S.K. Sharma to whom deceased had been taken first of all. He has explained as to the state of the deceased at the time when he was brought to the dispensary and attempts made by him and thereafter having referred the deceased to I.G.M.C. in the ambulance. Prescription slip about the deceased having been brought to him and treatment given by him is proved by this witness on record as Ex. PW-8/A. Besides these witnesses, other material witnesses are PW-3 Shankar Dass in whose as well as in the presence of one Hukam Chand when the appellant had made disclosure statement of his having concealed one knife in the bushes of the Summer Hill forest which the appellant could recover. This witness is signatory to Ex. PW-3/A, PW-4 Yashwant Bhardwaj alongwith one Mohmad Afzal is a person, who had witnessed the recovery of knife Ex. P-8. Recovery memo Ex. PW-4/A was prepared and PW-4 is a itness to it as also to the sketch map of the knife Ex. PW-4/B. This knife according to this witness had been sealed in a packet with seal K’ PW-12 is the mother of the deceased who has supported the prosecution case as well as corroborated the statements of PWs 1 and 2 in its material particulars, PW-15 is Inspector Jeet Ram, S.H.O. Police Station Shimla West, who had undertaken the investigation immediately on registration of the F.I.R. Ex. PW-1/A. He had prepared sketch map, taken into possession blood stained shirt Ex. P-1 of the appellant vide memo Ex. PW-1/A. He had prepared sketch map, taken into possession blood stained shirt Ex. P-1 of the appellant vide memo Ex. PW-1/B and put it into a parcel which was sealed with seal J and thereafter recorded the disclosure statement of the appellant in the presence of Shankar Dass and Hukam Chand regarding the former having concealed the knife in the Summer Hill forest. Pursuant to this disclosure statement Ex. PW-3/A knife was recovered by PW-16 A.S.I. Karam Chand, Incharge Police Post, Summer Hill who had prepared recovery memo Ex. PW-4/A as well as the sketch map. Knife (Ex. P-8) so recovered had been put in a parcel and duly sealed with the seal K’ 8. Appellant was examined under Section 313 Cr. P.C. to all questions directed to him by the trial court in his examination, the stand of the appellant was that of denial simplicitor. However, to last question he gave writing which is Ex. D-1 (DJ). Explanation of the appellant as given in Ex. D1 (DJ) is that this case has been falsely planted on him and the story put forth by the police and the complainant is false. According to the appellant he was called by the deceased as well as PW-1 to their house when he had left his house for bazar to get the heater repaired. While the heater was in the process of being repaired, the appellant was in the bazar when he was called by them. Surinder Pal Singh is stated to have asked the appellant as to why the latter pretended himself to be a gangster (Dada) and a few days ago the appellant had been supporting the deceased. Surender is stated to have caught hold of the appellant and both of them fell down when his brother (PW-1) also came for his rescue and started giving beatings to the appellant and had further threatened him that he would not be left alive. At this point of time, both brothers caught hold of the appellant from his neck when the appellant felt danger to his life, he made an attempt to protect himself. Appellant further explained that he had no intention it kill no any 2 to 1 cause 2 murder any one. The appellant has further explained that he was called by the deceased and PW-1 with the intention to eliminate him. Appellant further explained that he had no intention it kill no any 2 to 1 cause 2 murder any one. The appellant has further explained that he was called by the deceased and PW-1 with the intention to eliminate him. Appellant also pointed out that the cases of hooliganism were spreading in the area and he felt danger in coming out from his house during night time. Lastly it was pointed out that the evidence is false, actual matter had been concealed and he being a minor could never think of committing a murder and in these circumstances he prayed for consideration of his this explanation. 9. Where the arguments in the case had commenced, an attempt was made by Shri Jagdish Vats, learned counsel appearing for the appellant for claiming acquittal by referring to the statements of PW 1 and 2 i.e., Narinder Pal Singh, injured brother of the deceased as well as his friend Ashwani Kumar PW-2, who was also a student with PW-1 in Himachal Institute of Engineering. However, after having referred to the statements of PWs 1 and 2, he was not in a position to stretch his submissions in support of his case claiming acquittal of the appellate, though without conceding he argued the case in the alternative. 10. From the tenor of the cross-examination of all the witnesses particularly PWs 1 and 2, it is evident that the incident is not in dispute, although in his statement under Section 313 Cr. P.C. the appellant has denied the incident. On the other hand in reply to question No. 36 of the statement recorded under Section 313 Cr. P.C. the appellant has given his written explanation Ex. D-1 (DJ) to which a detailed reference has been made above in this judgment. 11. At this stage, it may be appropriate to refer to the explanation furnished by the appellant vide his above referred written statement. It is not in dispute that the appellant was there at the house of the PW-1 and the deceased. When a further reference is made to the cross-examination directed against PWs 1 and 2, it is clear that presence of both these witnesses is not ruled out from the scene of occurrence. It is not in dispute that the appellant was there at the house of the PW-1 and the deceased. When a further reference is made to the cross-examination directed against PWs 1 and 2, it is clear that presence of both these witnesses is not ruled out from the scene of occurrence. Then the question that remains to be seen is whether the appellant had been called by the deceased and PW-1 during the period his heater was being repaired and he was passing by the house of these two brothers or he had himself entered the house and after making inquiry from PW-1 whether appellant had inflicted the injuries as detailed herein this judgment upon the deceased as well as on the PW-1. In this context, Ex. D-1 (DJ) written explanation by the appellant in reply to question No. 36 under Section 313 Cr. P.C. assumes significance. He has not said a word about the incident in question or whether any incident took place or whether he was armed with the knife. Similarly, to PW-1 in cross-examination it was suggested on behalf of the appellant that all of a sudden appellant and the deceased entered into a hot discussion and started grappling with him when this witness had slapped the appellant as also both the brothers having caught hold of the appellant from his throat and at such time with a view to get himself released from the grip from both of them, the appellant had attacked them with the knife. Similar suggestion had been given in cross-examination to PW-2 Ashwani Kumar the other witness of the incident, although both these witnesses have denied the suggestion of the defence. 12. No doubt simply because the defence had given these suggestions to the prosecution witnesses by it would not exonerate the prosecution from establishing its case beyond any reasonable doubt, but when the totality of the circumstances of this case is seen, it is clear that incident is admitted and use of knife is also admitted. Though there is enough direct evidence brought by the prosecution to bring home the guilt against the appellant. 13. In the aforesaid background, Sh. Though there is enough direct evidence brought by the prosecution to bring home the guilt against the appellant. 13. In the aforesaid background, Sh. Jagdish Vats, learned counsel for the appellant made an alternate submission that the conviction and sentence of the appellant under Section 302 I.P.C, deserves to be altered to one under Section 304 Part I I.P.C. and submitted that no case under Section 452 IPC is made out against the appellant in the facts and circumstances as well as background of this case. In support of his this submission, it was urged by him that it is not safe to convict the appellant on the sole statements of PWs 1 and 2 as they were the interested persons, according to Sh. Jagdish Vats there was no occasion for the appellant to have entered the house of the deceased and PW-1 where PW-2 was also there, thus according to him he was called only them that the appellant entered the house. In support of his earlier submission help was sought from the statement of PW-2 under Section 161 Cr. P.C. Ex. D-1, this being a material contradiction according to Sh. Jagdish Vats was a ground to discard the statement of this witness. It was vehemently argued that the police had failed to recover Pattu which was there on the person of the appellant at the time when he had entered the house of PW-1 whereunder from he had taken out the knife and had given knife blows to the deceased as well as to the PW-1. Further case of the appellant was that in no case the appellant would go to commit the murder in the presence of three persons, clearly shows that there was no intention on the part of the appellant to cause the death. Intention to commit murder was pleaded to be missing and at best it can be said that the appellant had gone to the house of the deceased to settle some old score or at best to cause some injury. In support of his this submission, Shri Jagdish Vats sought help from Section 300 Exception IV of the I.P.C. 14. On the other hand all the submissions made on behalf of the appellant have been controverted by the learned Additional Advocate General. In support of his this submission, Shri Jagdish Vats sought help from Section 300 Exception IV of the I.P.C. 14. On the other hand all the submissions made on behalf of the appellant have been controverted by the learned Additional Advocate General. It has been urged by Shri D.C. Pathik, learned Additional Advocate General that the conduct of the appellant is writ large the way the weapon has been used by the appellant, that too on the vital parts of the body on which injuries had been caused, it was further urged by the learned Addl. Advocate General that there was no reason for the appellant to have entered the house of the deceased and in any case if he was being attacked by the PW-1 as well as by the deceased, there was no occasion for his having inflicted the second injury, especially when the deceased as well as PW-1 were un-armed. Commenting upon the explanation of the appellant that he had gone to get his heater repaired and he had been called by the deceased to his house when the process of repair of heater was going on, it is not understood as to why the appellant should carry the knife Ex. P8 with him. With reference to the statement of the appellant under Section 313 Cr. P.C. special reference was made to questions No. 7,10, 11 and 3D and the answers given thereto. According to Shri D.C. Pathik when the cross-examination of the witnesses as well as the answers given to these questions are read in conjunction with Ex. D1 (DJ) the entire fabric of the case of the appellant falls to the ground. According to Shri D.C. Pathik this is a clear cut case where the appellant had gone after having prepared to commit the offence and then entered the house of the deceased and in furtherence of such preparation having been made, he committed the offence in a pre-meditated manner and has such, no case for alteration of charge under Section 304 Part I of the I PC is made out as pleaded by the learned counsel for the appellant. In these circumstances, it was urged that the appeal deserves to be dismissed and conviction and sentence inflicted upon the appellant deserves to be up-held. 15. In these circumstances, it was urged that the appeal deserves to be dismissed and conviction and sentence inflicted upon the appellant deserves to be up-held. 15. The submissions made on behalf of the appellant by Shri Jagdish Vats for altering the sentence prima facie appears to be attractive but when tested in the light of the evidence; statement of the appellant under Section 313 Cr. P.C. as well as his written explanation vide Ex. D1 (DJ) appellant has failed to make out any case for alteration of charge and consequent conviction and sentence: In this behalf, it may be appropriate to mention that ordinarily when the appellant had gone for getting the heater repaired then he would not carry the knife Ex. P-8 (the weapon of offence) along with him. As a corollary to this, it would be further prima i facie just to hold that the appellant had gone with a pre-meditated mind to commit the offence which he did commit by giving the knife blows to the deceased which position is corroborated by the statement of PW-6 as well as PWs 1 & 2. In this context, it may be appropriate to point out that the shirt Ex. P-1 belonging to the appellant was sent to Chemical Examiner who had opined vide his report Ex. Px that the clothes of the deceased as well as the shirt of the appellant (Ex. P-1) were found to have blood of the same group i.e., O. 16. Besides the above, when the injury had been caused by the appellant on the person of the deceased, the latter was un-armed, had been firstly thrown on the double bed, it was in these circumstances that the first knife blow had been given by the appellant when in the meantime he had been caught hold of by PW-1 when other knife blow was inflicted. Both these blows were on the vital parts of the body i.e., stomach and chest. The matter did not end here but the appellant further gave knife blow to PW-1. In these circumstances, it would not be safe to hold that the appellant had no intention to commit murder as well commit the act of house trespass after having made preparation for causing hurt. Therefore, in view of the aforesaid circumstances, exception IV to Section 300 I PC is not at all attracted in the case. 17. In these circumstances, it would not be safe to hold that the appellant had no intention to commit murder as well commit the act of house trespass after having made preparation for causing hurt. Therefore, in view of the aforesaid circumstances, exception IV to Section 300 I PC is not at all attracted in the case. 17. Another reason for not accepting the argument made on behalf of the appellant is that it is not a case of sudden fight and there was no pre-meditation and above all act of inflicting injuries having been done in a heat of passion. Lastly it is also to be seen whether the appellant as an assailant had taken or not, undue advantage of the situation and/or he acted in a cruel manner. When the act of the appellant in having inflicted knife injuries on the person of the deceased are examined on the touch stone on the aforesaid principles of law, it is dear that the appellant is not entitled to any benefit as pleaded in the present case. In no case it can be said that the murder had been committed without pre-meditation that too in the heat of passion or was the result of sudden quarrel in the present case On the other hand as already held that that appellant had gone to the house of the deceased after having decided to commit his murder and in preparation of such intention he had armed himself with a knife which ultimately came to be the weapon of offence. In these circumstances, no case for alteration of conviction and sentence has been made out by the appellant from Section 302 to Section 304 Part I of the I.P. C. 18. To be fair to Sh. Jagdish Vats it would be necessary to note his submission regarding non recovery of Pattu which according to PWs 1 and 2 the appellant was stated to be possessed of at the time when he entered the house, and from whereunder he had taken out the knife and inflicted knife blows on the body | of the deceased. Jagdish Vats it would be necessary to note his submission regarding non recovery of Pattu which according to PWs 1 and 2 the appellant was stated to be possessed of at the time when he entered the house, and from whereunder he had taken out the knife and inflicted knife blows on the body | of the deceased. Mere non recovery of Pattu is of no significance in the present j case in the face of the Incident being admitted and further having pressed into service Exception IV of Section 300 of the I.P.C. Even if Pattu is not recovered then it cannot by itself he made a circumstance either to discard the entire prosecution case or to alter the sentence from Section 302 to Section 304 Part I of the I.P.C. especially in the light of the above noted detailed evidence and other circumstances. 19. In support of his submission that this is not a case of culpable homicide amounting to murder, as well as for converting the conviction and sentence to Section 300 Exception IV I.P.C. instead of Section 302 of the I.P.C, Shri Jagdish Vats has pressed into service the case Ram Pal v. State of H.P., of Division Bench judgment of this court reported in 1996 CRI LJ 2374. In this case father of the appellant had been injured by PW Hoshiar Singh. On evidence it was found that in juries on the person of this witness as well as on the deceased were the result of sudden quarrel and in the heat of passion. As such this case is distinguishable on facts, so far legal proposition laid down in the said judgment is concerned, there can be hardly any dispute and it is again re-affirmed and reiterated that depending upon the facts and circumstances of the case, the court would be justified in coverting the sentence by holding that it is a case of culpable homicide not amounting to murder. But when the ratio of that judgment is applied to the facts of the present case, the case of the appellant remains where it was and in no way any benefit can be derived by the appellant. But when the ratio of that judgment is applied to the facts of the present case, the case of the appellant remains where it was and in no way any benefit can be derived by the appellant. Detailed discussion regarding the circumstances, background as well as manner in which the injuries had been inflicted by the appellant upon the deceased that too on vital parts of the body of the deceased does not permit the appellant to take any benefit from the aforesaid decision. 20. No other point has been urged in support of this appeal. As a result of the aforesaid discussion, it is clear that from whatever angle the case of the appellant may be viewed, it is clear that there is no merit in the appeal of the appellant and is dismissed accordingly. Appeal dismissed.