JUDGMENT 1. - Being aggrieved by the judgment and order of conviction recorded by the learned Additional Sessions Judge No. 2, Sri Ganganagar in Sessions Case No. 28 of 1993 convicting the accused under Section 302, I.PC. and sentencing him to undergo imprisonment for life, the appellant has preferred this appeal. 2. The facts giving rise to the present appeal are that on 19.2.93 at about 4.30 PM. one Sohan Lal son of Kishna Ram Naik, resident of 2 Chhoti lodged a report at Police Station, Chunawad to the effect that at about 3.00 RM. when he was at his house his married daughter Vimla was sitting in the house of Mangla Ram. Wife of Mangla Ram and his daughter Guddi were also sitting there. The accused Milkha Ram then came there having a TOKA (seythe) in his hand and he struck with TOKA on the head of deceased Vimla, daughter of Sohanlal and when Vimla ran away towards chowk, accused Milkha Ram inflicted blows on her head and mouth, as a result of which Vimla died on the spot and the accused Milkha Ram ran away. On this information a FIR was lodged at Police Station, Chuawad and the accused was arrested on 22.2.93. After investigation the police filed challan against the accused Milkha Ram under Sections 302 and 441, I.P.C. The prosecution examined 10 witnesses. After appreciating the evidence on record the learned Additional Sessions Judge No. 2, Sri Ganganagar passed the judgment of conviction and sentence as aforesaid. It is this order of conviction and sentence which is impugned in this appeal on several grounds mentioned in the memo of appeal. 3. With the assistance of the learned counsel for the accused appellant and the learned Public Prosecutor we have scrutinised the entire record of the case and have re-appreciated the oral as well as documentary evidence on record. 4. P.W. 1 Banwari Lal states that on the date of occurrence at about 3.00 in the afternoon he saw the accused Milkha Ram running from the village towards Bus stand followed by Sohan Lal. The witness then states that Milkha Ram was having a bloody Toka (seythe) in his hand and Sohanlal was saying that the accused was running after killing his daughter, please catch him. Milkha Ram ran away and, therefore, we went towards the place where the dead body of Vimla was lying. The witness then states that Milkha Ram was having a bloody Toka (seythe) in his hand and Sohanlal was saying that the accused was running after killing his daughter, please catch him. Milkha Ram ran away and, therefore, we went towards the place where the dead body of Vimla was lying. All that has been said by the witness is that he saw the accused running away with a bloody weapon and hearing Sohan Lal that his daughter (Vimla) has been killed by the accused. He is thus a witness to immediate location of the accused near the scene of offence. He does not prove anything beyond that. 5. P.W. 2 Sohan Lal is the father of the deceased. He states that the on the day of the occurrence his daughter (Vimla) was sitting in the house of her aunt (Mausi). Her aunt (Mausi) Janki and Janki's daughter Parmeshwari were also sitting there. The witness went to the house of Janki on hearing cries where he saw accused Milkha Ram having a Toka and he was assaulting Vimla with Toka and Janki was shouting. The witness then states that Milkha Ram thereafter caused injury on the neck of Vimla by Toka. According to the witness two blows were inflicted by accused on the person of Vimla and then according to the witness after hitting two blows the accused ran towards Bus stand. He has also stated that the accused was seen running by Bhura and Banwari. He then says that he ran after the accused and then ultimately lodged the first information report. The witness proceeds to give the motive of accused causing death of his daughter Vimla that according to the accused Milkha Ram his daughter Chhindo ran away with the son of the witness Ramlal and, therefore, the accused had grievance against the family of witness Sohanlal. The witness has been duly cross examined and we see nothing in the testimony in cross examination of this witness to discredit his entire testimony. 6. PW. 3 Janki is an eye witness to the incident. She saw the accused assaulting Vimla on the neck and on her shouting the accused ran away. She also states that the accused was chased by Sohanlal, the father of the victim. The cross-examination of the witness is wholly inconsequential. 7. P.W. 4 Ghanshyam Singh is the Malkhana In-charge at Police Station, Chunawad. She saw the accused assaulting Vimla on the neck and on her shouting the accused ran away. She also states that the accused was chased by Sohanlal, the father of the victim. The cross-examination of the witness is wholly inconsequential. 7. P.W. 4 Ghanshyam Singh is the Malkhana In-charge at Police Station, Chunawad. P.W. 5 Dr. K.N. Markande proves the homicidal death of Vimla. It is stated by Dr. Markande that the injuries caused to Vimla were sufficient to cause death. The description of injuries given by him materailly corroborates the testimony of eye witness and others who claimed that the injury on the neck was inflicted by the accused. PW. 6 Ruda Ram is constable who took the samples to Forensic Science Laboratory, Jaipur. PW. 7 Santlal is the Station House Officer who recorded the first information report. P.W. 8 Karnail Singh is the witness to the seizure of accused Milkha Ram's shirt P.W. 9 Abdul Ajij is the Station House Officer who investigated the crime. P.W. 10 Kanwardhir is the Deputy Superintendent of Police, Sri Ganganagar, Rural Circle. 8. It was on appreciation of this witness that the learned Sessions Judge came to the conclusion of guilt and recorded the finding accordingly against the accused Milkha Ram. 9. Assailing the judgment of conviction under Section 302, I.PC. the learned counsel for the accused appellant submitted that in this case there was no question of any murder or homicidal death being caused by the accused. It is a case where the accused did not intend to commit murder nor intended to commit such act as would amount to homicidal death and the case is, therefore, wrongly decided by the learned Judge, even if it is assumed that the accused is proved to have assaulted the deceased as alleged by the prosecution. The learned counsel canvassed us for complete acquittal on the ground that there is no palatable evidence on record to support the conviction of the accused Milkha Ram. In the alternative it was submitted by the learned counsel that the accused can at the most be held guilty of the offence of causing homicide not amounting to murder punishable under Section 304, I.PC. In support of his case the learned counsel placed reliance on four judgments of Supreme Court of India. In the alternative it was submitted by the learned counsel that the accused can at the most be held guilty of the offence of causing homicide not amounting to murder punishable under Section 304, I.PC. In support of his case the learned counsel placed reliance on four judgments of Supreme Court of India. In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217 the Supreme Court has observed that when knife blows were inflicted in the heat of the moment resulting in death the accused may be entitled to benefit of Exception 4 and should, therefore, be convicted under Section 304 Part I. Applying the ratio of the aforesaid case to the facts of this case it was contended that the accused saw the deceased i.e. the daughter of the complainant happily sitting with her family and was enraged by remembering that his own daughter has eloped with the brother of the deceased and, therefore, due to sudden passion arising in his mind, inflicted two blows of Toka on the person of deceased as he was carrying the Toka in natural course. There is no evidence to show that Milkha Ram came on the scene of offence with any meditation or that there was any plan in the mind of the accused to come there and assassinate the victim. His passion arose on the heat of moment and, therefore, he assaulted a family member of Ramlal who had eloped with his daughter in a fit of revenge. It was, therefore, pleaded by the learned counsel that in the present case also the prosecution has failed to prove any intent on the part of the accused to cause death or such bodily injury as would likely to cause death or the knowledge that the injury inflicted was such as will in all probability cause death. The accused was enraged by the fact of his daughter elapsed with the family member of the victim and, therefore, the offence occurred. 10. Relying on the decision Mathew alias Mathachan v. State of Kerala, (1992) 1 SCC 74 it was contended by the learned counsel that in order to establish sudden fit in the heat of passion upon a sudden quarrel as contemplated by Exception 4 of Section 300 it is not necessary that the sudden fight or quarrel must take place at the same time when the assault has taken place. If a quarrel has taken place earlier in point of time and is of such nature as would keep alive the rays in the mind of the accused the provisions of Exception 4 to Section 300 can be invoked and, therefore, the fact of his daughter eloping away with the brother of the deceased is such as can be said to be a fact giving rise to sudden passion. He therefore, prayed that on this ground sentence is liable to be reduced and conviction under Section 302, I.PC. cannot be maintained. For similar proposition reliance was also placed on Madan Lal v. State of Punjab, 1992 Supp. (2) Supreme Court Cases 233 and Hanasa Singh v. State of Punjab, 1977 Cr.L.J. 1448 . 11. Having considereds the submissions we find that there is no substantial force in the same. It is not disputed that the accused was carrying Toka. There is no evidence on record to show that the offence was in any manner pre-planned. There is no dispute about the fact that the daughter of the accused eloped with the brother of the deceased. In such circumstances it can be reasonably said that passions were arose by seeing the family living happily with the father when he was deprived of the company of his own daughter. We are, therefore, of the view that it is not a case of murder as contemplated under Section 302, I.PC. 12. In the result the appeal is allowed in part. The order of conviction of the appellant under Section 302, I.PC. is set-aside and instead the accused is convicted under Section 304 Part II. So far as the sentence is concerned, the accused was arrested on 22.2.1993 and is in jail since that time. More than five years have elapsed since then. The interest of justice would be met if the accused is sentenced to imprisonment for a period of 5 years. Since the appellant has already undergone the sentence, he is liable to be released forthwith, if not required in any other case.Appeal Allowed in Part. *******