JUDGMENT 1. 1. This Criminal D.B. Appeal has been filed by the accused appellant against the judgment/order dated 23.1.95 passed by the Additional Sessions Judge No. 1, Jaipur City in Sessions Case No. 52/94 State v. Vikram Khatri whereby the accused has been convicted for the offence punishable under Section 302 IPC and sentenced to life imprisonment and a fine of Rs. 1,000/-, in default to undergo further simple imprisonment for a period of one month. 2. In brief, the facts of the prosecution case are that verbal report was lodged by PW 1 Banshi at Police Station, Subhash Chowk, Jaipur on 13.10.93 at 10.00 RM. to the effect that about 9.15-9.30 RM. he was standing on the Balcony of his house, his father Shobhraj was standing in courtyard. His sister Vidhya was married to Vikram (accused-appellant) about six years ago. Accused has deserted her four years ago. Therefore, she was residing with her parents. Accused used to come their house just to harass Vidhya and other family members. On the day of incident i.e. on 13.10.93 accused had come to the, house of informant and entered into verbal altercation with his father and threatened with dyre consequences in case his son is not handed over to him. Upon hearing the noise informant came down from Balcony to chowk where accused was quarrelling with his father. When he tried to take away his father, accused took out a knife from his pocket and stabbed complainant's father between the stomach and ribs as a result of which Shobhraj started bleeding. Accused thereafter ran away with knife. The complainant and his friend Laxman chased but could not apprehend him. When he returned to his house his father was being taken to hospital by Shri Shyam Singh. He along with his friend Laxman had come to lodge the report. On the basis of this report a criminal case FIR 58/93 was registered for the offence under Section 307 IPC. After some time Shobhraj died. Therefore, the case was converted into offence punishable under Section 302 IPC. The investigating officer commenced investigation. Site plan, panchayatnama were prepared. Blood stained soil and clothes of deceased were seized. Post mortem was conducted. Statements of witnesses were recorded. Accused was arrested. His knife was recovered from his possession. His room in hotel was also serched where he was staying. The investigating officer commenced investigation. Site plan, panchayatnama were prepared. Blood stained soil and clothes of deceased were seized. Post mortem was conducted. Statements of witnesses were recorded. Accused was arrested. His knife was recovered from his possession. His room in hotel was also serched where he was staying. After completing the investigation a charge sheet in the court of Additional Chief Judicial Magistrate No. 5, Jaipur City was filed who committed the case for trial to the court of Sessions Judge, Jaipur City who transferred it to additional Sessions Judge No. 1, Jaipur City for trial. 3. After hearing the arguments of Public Prosecutor and counsel for accused charge under Section 302 IPC for committing murder of Shobhraj was framed. Accused pleaded not guilty and claimed trial. 4. The prosecution examined eighteen witnesses and tendered in evidence documents Ex.P 1 to Ex.P 14 and article 1, knife, to prove its case. PW 1 Banshi, PW 3 Smt. Lilawati, PW 4 Smt. Vidhya, PW 5 Smt. Jyoti, PW 6 Smt. Durga are eye witnesses of the incident. PW 2 Shyam Singh, PW 8 Vinod Kumar are the witnesses of dying declaration and have taken Shobhraj to S.M.S. Hospital, Jaipur. PW 7 Sunder Das, PW 10 Permanand, PW 11 Shyam Lal, PW 13 Logmal, PW 17 Devendra Singh are the witnesses of site plan, seizure of clothes, arrest of accused, recovery of knife etc. PW 12 Dr. B.L. Bhatia conducted post mortem. PW 14 Narain Singh and PW 15 Shiv Prakash are the investigating officers of this case. Statement of accused under Section 313 Cr.P.C. was recorded. He has stated that he has been falsely implicated in this case. He has not examined any witnesses in his defence. Learned Additional Sessions Judge after hearing arguments held that the case is based upon the statements of eye witnesses, they all were present in the chowk when this incident had taken place, there is dying declaration of deceased being proved by Shyam Singh and Vinod Kumar, knife was also recovered from the possession of the accused, and found accused guilty of committing murder of his father in law Shobhraj and convicted him for the offence under Session 302 IPC and sentenced him as stated earlier. 5. Learned counsel submitted that he is not challenging the finding of the trial court about the incident and involvement of accused' in it. 5. Learned counsel submitted that he is not challenging the finding of the trial court about the incident and involvement of accused' in it. but he submitted that this case does not travel beyond the offence punishable under Section 304-11 because accused is married to Vidhya daughter of deceased Shobhraj. She was living with her parents along with her son for the last four years prior to the day of incident. He wanted to have the custody of his son for which he was approaching his father in law time and again. On the day of incident he had come from Baroda only for this purpose i.e. to take the custody of his son but Shobhraj refused to accept the request of accused. On this some altercation took place. The offence was committed without any premeditation on the spur of moment. There was only one blow with knife to the deceased. Therefore, offence punishable under Section 304- II is only made out. 6. He has placed reliance on the two decisions of Supreme Court AIR 1982 Supreme Court 126 Kulwant Rai v. State of Punjab and AIR 1984 Supreme Court 759 Tholan v. State of Tamil Nadu . 7. We have gone through the entire evidence on record and judgment of the trial court. The cause of death of Shobhraj is haemorrhagic' shock due to injury to lung (Rt.), sufficient to cause death as stated by PW 12 Dr. B.L. Bhatia. The prosecution case is based upon the statements of eye witnesses PW 1 Banshi, P.W 3 Smt. Lilawati, P.W. 4 Smt. Vidhya, P.W. 5 Smt. Jyoti P.W. 6 Smt. Durga who were inmates of the house of deceased where incident had taken place. They have specifically stated that accused inflicted knife blow on the chest of Shobhraj. There is nothing on record to discredit the testimony of these eye witnesses. Therefore, we are satisfied and agree with the finding of the trial court that accused inflicted knife blow which landed on the chest of Shobhraj and proved fatal. 8. It is not that in every case of a single blow the case cannot be made out under Section 302 IPC and conviction can only be made under Section 304-II IPC. But it depends upon the part of the body where the injury has been caused. The nature of injury and other circumstances. 8. It is not that in every case of a single blow the case cannot be made out under Section 302 IPC and conviction can only be made under Section 304-II IPC. But it depends upon the part of the body where the injury has been caused. The nature of injury and other circumstances. In this background we have to examine what offence is made out against the accused? 9. It is an admitted position that Smt. Vidhya P.W. 4 daughter of deceased Shobhraj is married to accused Vikram resident of Baroda. Marriage took place about six years prior to the incident. According to prosecution after two years of marriage she gave birth to a male child but also suffered with a paralytic attack. Thereafter accused refused to keep her with him. Therefore, she along with her son was residing with her parents. Accused wanted to have the custody of his son, and have approached his in laws for this purpose on earlier occasion also but was unsuccessful because Shobhraj wanted that accused should keep Vidhya also with him for which accused never agreed. On the day of incident accused went to the house of Shobhraj and demanded custody of his son. Shobhraj refused for the same and verbal altercation took place. On hearing noise PW 1 Banshi son of Shobhraj came down stairs and tried to take away his father. At that time accused took out knife from his pocket and stabbed on the chest of the deceased and ran away. Shobhraj died after couple of hours after the incident. The injury was on the vital part of the body and sufficient to cause death in the ordinary course of nature. 10. The facts of cases on which reliance has been placed by the learned counsel are distinguishable because in Kulwant Rai's case (supra) full facts under what circumstances the offence was committed are not available. The Apex Court observed that "To repeat there was an altercation. There was no premeditation. It was something like hit and run. In such a case, part 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particualr injury which was ultimately found to have been inflicted. The Apex Court observed that "To repeat there was an altercation. There was no premeditation. It was something like hit and run. In such a case, part 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particualr injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under Section 304 Part II Penal Code". 11. In the case Tholan v. State of Tamil Nadu (supra) the facts were "The accused started demonstrations using filthy language against certain organisers of a chit fund who had no connection with the deceased, in front of the house of the deceased and the deceased came out of his house and asked the accused to go away, the accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance." It was held in the circumstances of the case that "though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like knife and, therefore, he could be attributed with knowledge that he was likely to cause injury which was likely to cause death. In such a situation though he could not be convicted under Section 302, he would be guilty of committing an offence under Section 304 Part II. 12. In the present case as evident from the evidence of the prosecution that accused deserted his wife, therefore, she was residing with her son with her parents in Jaipur. Accused wanted to have the custody of his son for which he approached earlier also. On the day of incident he again approached to his father in law who refused to hand over the custody of his child on the ground that accused should keep Vidhya also with him. On this some altercation took place. When PW 1 Banshi was taking away his father from that place accused took out knife from his pocket and stabbed on the chest of Shobhraj. Though he inflicted only one injury but it proved fatal. This injury was sufficient to cause death in the ordinary course of nature as stated by the doctor. On this some altercation took place. When PW 1 Banshi was taking away his father from that place accused took out knife from his pocket and stabbed on the chest of Shobhraj. Though he inflicted only one injury but it proved fatal. This injury was sufficient to cause death in the ordinary course of nature as stated by the doctor. In our opinion, on the basis of the facts and circumstances of this case, intention to cause such bodily injury as was likely to cause death can be inferred. Taking into consideration over all picture of the entire story in our opinion this case falls under Section 304 Part-I and not in Section 302 I.P.C. 13. Therefore, this appeal is partly allowed. We set-aside the conviction and sentence recorded against the accused appellant under Section 302 IPC, and convict him under Section 304 Part-I IPC and sentence him to suffer rigorous imprisonment for a period of ten years and a fine of Rs. 5,000/-, in default, to further undergo sentence of one year's rigorous imprisonment.Appeal partly allowed. *******