( 1 ) THE appellant before us who was the first accused in Sessions Case No. 216/94 before the learned IX Additional Sessions Judge, Bangalore City was convicted by the trial Court for an offence punishable under Section 302, IPC and sentenced to undergo R. I. for life and to pay a fine of Rs. 1,000/- in default, to undergo R. I. for one month. ( 2 ) THE prosecution case briefly stated was to the effect that on the after noon of 10-8-1993 the P. Ws. 1, 2 and 3 along with the deceased had gone to a film show at about 2. 45 p. m. at a talkies situated in M. S. R. Nagar. Since the show had started and it was dark, the deceased is supposed to have tripped over the legs of A-1 whereupon a fight ensued between the two of them. Not only was an abusive and vulgar language was used but the deceased is also supposed to have given two slaps to A-1. P. W. 1 contends that during the interval, he made enquiries and came to know that the name of A-1 was Loki and that the three other persons with him were his friends and that they were residents of Mathikere. The accused and his friends are supposed to have left the show shortly before it ended. The deceasedafter the show got over was proceeding on a cycle whereas P. Ws. 1, 2 and 3 were walking at some distance behind. It is alleged that all of a sudden A-1 along with A-2 and the other absconding accused pounced on the deceased. While the other two persons are supposed to have assaulted the deceased with their hands, it is alleged that A-1 whipped out M. O. 3, a knife and stabbed the deceased on the abdomen. The assailants thereafter ran away from that place and P. Ws. 1 to 3 state that they looked for an autorickshaw to take the injured to the hospital and that they reported the matter to a police constable who is P. W. 11 who in turn put the injured person in an autorickshaw and took him to the Ramaiah Hospital, but he was declared dead. 1 to 3 state that they looked for an autorickshaw to take the injured to the hospital and that they reported the matter to a police constable who is P. W. 11 who in turn put the injured person in an autorickshaw and took him to the Ramaiah Hospital, but he was declared dead. It is the prosecution case that on the next day, A-1 went to the police station and surrendered himself and the Duty Officer who is P. W. 8 states that he prepared a report of the surrender and that he also took charge of the blood-stained clothes and the blood-stained knife under a mahazar. On completion of the investigation, the accused were put up for trial and on completion of the trial, the learned trial Judge held that the offence under Section 302, IPC was established and convicted the appellant before us and awarded him the sentence as set out earlier. The present appeal is directed against that order. ( 3 ) WE have heard the appellant's learned advocate Mr. Hashmath Pasha and the learned Additional State Public Prosecutor Mr. Pinto and we have also reviewed the entire record of the case. ( 4 ) THE first submission canvassed by Mr. Hashmath Pasha is that the evidence of P. Ws. 1, 2 and 3 which we shall bracket together must be discarded because according to him, the three persons have wrongly implicated the accused. His submission is that admittedly these persons were not known to each other and that a small incident took place in the darkness of the talkies where the film show was going on which concluded there itself. He submits that while there is no doubt about the fact that some person stabbed the deceased, that it happened on a public road where a large number of people were walking since the picture has just got over and that admittedly P. Ws. 1, 2 and 3 were a good 20 yards away from the scene of incident. Furthermore, he submits to us, on the basis of the evidence, that the incident was of an extremely short duration in so far as a single blow was inflicted on the deceased and the assailants ran away. 1, 2 and 3 were a good 20 yards away from the scene of incident. Furthermore, he submits to us, on the basis of the evidence, that the incident was of an extremely short duration in so far as a single blow was inflicted on the deceased and the assailants ran away. Coupled with this, he has drawn our attention to the fact that P. W. 1 himself states that during the interval, he made enquiries about the identity of the person who had fought with the deceased and that the only information which they secured was that the name of the person was Loki. The learned advocate submits that in the light of this situation, the possibility of the P. Ws. 1 to 3 identifying the assailants is not only remote but that it is impossible. His submission, therefore, is that if the P. Ws. 1 to 3 who may have been following the deceased at some distance are given to understand that the person arrested is the assailant that they would mechanically repeat this version and that having regard to the aforesaid circumstances that the Court must totally reject the evidence. ( 5 ) THE learned Additional State Public Prosecutor has countered this submission because what he points out is that we have not one but three witnesses who have deposed to the incident and whose versions tally. He also demonstrated to us that from the supportive evidence available that there is no doubt about the fact that these three persons were present. His evidence is that the earlier incident in the talkies clearly indicates that an enquiry was made with regard to the identity of the accused and that when the incident took place, P. Ws. 1 to 3 were sufficiently close to clearly see what had happened. More importantly, what he had demonstrated to us is that the theory put forward now before this Court with regard to the impossibility of the identification was not the line pursued in the cross-examination and that the evidence of P. Ws. 1 to 3 has virtually remained unshaken. They have clearly deposed to the effect that they did see the incident and that while they saw the other two assailants assaulting the deceased with their hands that they clearly saw A-1 stabbing the deceased. This crucial aspect of the incident has not been demolished in the cross-examination. 1 to 3 has virtually remained unshaken. They have clearly deposed to the effect that they did see the incident and that while they saw the other two assailants assaulting the deceased with their hands that they clearly saw A-1 stabbing the deceased. This crucial aspect of the incident has not been demolished in the cross-examination. We have undoubtedly examined the submissions put forward by the appellant's learned Advocate but we find that the evidence of P. Ws. 1 to 3, which again is inter se corroborative, supports the prosecution case completely andfurther that the learned trial Judge who has analysed the evidence before we have done so, has rightly relied on these witnesses and we have no hesitation in holding that those findings are liable to be upheld. One of the aspects that we have taken note of this, is that, this is not a case where any prior hostility or enmity is attributed to the parties as they virtually did not know each other and that, therefore, the only aspect that we needed to really scrutinise is the question as to whether there is any possibility of mistaken identification. Having carefully assessed the evidence of P. Ws. 1 to 3, we have no hesitation in holding that the incident has taken place at close quarters in broad day light and that the P. Ws. 1 to 3 are the eye-witnesses whose evidence bring home the charge. ( 6 ) THERE is a serious contest with regard to the most incriminating evidence in this case viz. , the deposition of P. W. 8, Venkataramanaiah, who was the Station House Officer before whom A-1 is alleged to have surrendered on the next day. On probabilities, Mr. Pasha submitted that it would be totally absurd for the prosecution to contend that the accused would have remained with blood-stained clothes for almost a whole day and then visited the police station carrying in his hand the blood-stained weapon. His submission is that the police authorities had obviously decided to take the easy way out and to implicate the appellant by contending that he walked into the police station with blood-stained clothes carrying a blood-stained weapon. On the other hand, the learned Additional State Public Prosecutor has drawn our attention to a crucial document viz. , Ext. P6 and the signature on it Ext. On the other hand, the learned Additional State Public Prosecutor has drawn our attention to a crucial document viz. , Ext. P6 and the signature on it Ext. P6 (a) wherein we find that the Station House Officer in question has taken the precaution to prepare an elaborate report of what precisely has transpired and produced the accused along with the report before his Superior Officer. This document inspired confidence in our minds in so far as there is no challenge to the effect that the report is fabricated. The Station House Officer in his evidence has indicated that the A-1 appeared to be highly disturbed when he came to the police station and this possibly explains the reason why he decided to go to the police and surrender himself. The Courts do come across many instances where persons who commit violent crimes get completely overcome by a sense of remorse coupled with a sense of acute fear which impels them to go to the police and surrender themselves. Obviously, the accused who was a young man of 18 would naturally have been disturbed by the fact that the assault by him on the deceased turned out to be a fatal one and we do not know what are the other factors which could have possibly made him first go hiding and then to go to the police. We cannot rule out the possibility of situations where persons who involve themselves in such offences are aware of the hostile reaction that may be visited on them and their deciding to go to the police. Whatever be the reason, unless there is a very strong and valid ground made out, it would not be possible to find fault with this head of evidence merely because some time has elapsed between the incident and the time of surrender. We need to only add here that the clothes and the weapon were sent for chemical analysis and were found to be stained with blood. It is true that Mr. Pasha pointed out to us that there is no Serologist report on record but the fact remains that the clothes which A-1 was wearing at the time of his surrender and the weapon which he produced were blood-stained and he has not put forward any explanation for this. It is true that Mr. Pasha pointed out to us that there is no Serologist report on record but the fact remains that the clothes which A-1 was wearing at the time of his surrender and the weapon which he produced were blood-stained and he has not put forward any explanation for this. In addition to this, we have taken note of the fact that the Doctor P. W. 12 in his evidence has correlated the weapon with the type of injury that was caused to the deceased. It is on the basis of this very strong supportive evidence that the learned trial Judge held that the offence was fully established as against the appellant and we have no hesitation, after having carefully and independently re-evaluating the evidence in holding that those findings are correct. ( 7 ) MR. Pasha then highlighted the following features of the case in support of his contentions that even if it is held against the accused, that the conviction under Section 302, IPC should be reduced to one under Section 304, Part II, IPC. We summarize the reasons put forward by him which are as follows : (a) That it is not demonstrated that the offence was either pre-planned or pre-medidated in so far as the facts indicate that, the parties did no know each other and that therefore, some small incident in the talkies barring which there is no other motive that can be ascribed to the incident; (b) That the incident was a sporadic oneand that it took place all of a sudden and furthermore that one single stab injury was inflicted; (c) That the blow was not aimed at the chest region. This is not what an assailant would normally have done if the intention was to kill; (d) That the type of weapon and the intensity of the blow taken together would at the highest indicate that the object was to injure and not to kill. ( 8 ) AS against this position, the learned Additional State Public Prosecutor has vehemently submitted that the conviction must be maintained in so far as the description of the weapon which indicates that it was a sharp cutting instrument viz. ( 8 ) AS against this position, the learned Additional State Public Prosecutor has vehemently submitted that the conviction must be maintained in so far as the description of the weapon which indicates that it was a sharp cutting instrument viz. , a dagger and the fact that the medical evidence indicates that the blow has penetrated the body of the deceased to an extent of five inches almost up to the rear muscle wall of the back cutting vital organs and severing vital blood vessels and furthermore, that the accused left the talkies and obviously went and fetched the weapon and came back and attacked the deceased, are all factors that squarely bring the offence within the ambit of Section 302, IPC. ( 9 ) THERE is virtually a volume of case laws with regard to situations in which the Courts have reduced the gravity of the offence and a relatively large number of cases wherein the Courts have not done so. We are guided by the principles laid down by the Courts over the years and we have culled out the salient features of those principles and applied them to the facts of this case. We do concede that this is not a case of dire enmity or long standing hostility and furthermore that even if the earlier fight between the two persons is taken into account that the time factor is not more than 2 or 3 hours. Mr. Pasha submitted that the deceased at the end of that fight had twice slapped A-1 and that this incident was relatively fresh and that it constitutes very grave provocation. There is a semblance of justification in this argument, but we cannot carry it much further than that because the accused did not react immediately in which case the argument could have been held good, but it is demonstrated that he sat through the entire length of the film, left the place and what is more important is that when the deceased was on the road, no further act or provocation emanated from his side. However, we have taken note of the fact that the incident was sporadic and sudden and that a single blow was inflicted. We do concede that on a combination of all the different factors of this case, that it would come within the framework of Section 304, IPC and not Section 302 IPC. However, we have taken note of the fact that the incident was sporadic and sudden and that a single blow was inflicted. We do concede that on a combination of all the different factors of this case, that it would come within the framework of Section 304, IPC and not Section 302 IPC. However, we are not prepared to accept the submission canvassed on behalf of the appellant that the case is covered under Section 304, Part II, IPC. ( 10 ) WE need to record here that there is a fine distinction between the class of cases that framers of the Code contemplated while prescribing the two parts of Section 304, IPC. The first part of the Section postulates a more serious class of offences where the Courts can infer that there is a clear intention to cause death whereas the second part of the Section contemplates a slightly lesser class of offences where there is a knowledge that the act is likely to cause death, but where the intention to cause death is not present. Though Mr. Pasha has vehemently submitted that the Court must infer from the facts of the present case that the accused at the highest can be held liable for having done an act with the knowledge that it is likely to cause death, but that there is absolutely nothing in his behaviour or utterances or act that could justify the conclusion that he had the intention to cause death. As we have indicated earlier, that though there is a fine distinction between the two classes of offences, there is still a very clear-cut difference between them and we need to record that the Courts are required to give effect to the difference on the basis of the special facts of each case. To quote an example, if the weapon used happens to be a small club, the manner in which the blow is inflicted viz. , the degree of force used and more importantly the part of the body at which it is aimed would be of prime relevance, but the Courts would still take cognizance of the fact that the use of this sort of a weapon would signify the intention of really causing the hurt rather than of killing. The real difference is between the aspect of intention and knowledge and as we shall demonstrate. The real difference is between the aspect of intention and knowledge and as we shall demonstrate. If on the other hand, the weapon used is a lethal weapon such as a dagger and the blow is aimed at a vital part of the body, the only legitimate inference which the Courts will draw is that the accused definitely intended to kill. It is really this test that we have applied to the facts ofthe present case and we need to uphold what the learned Additional State Public Prosecutor highlighted viz. , the fact that it was a dagger that was used, that it was aimed at a vital part of the body and that the blow was inflicted with the level of force that could have done nothing other than inflicting a fatal injury and that consequently, it cannot be argued that the intention to kill was absent. The Courts have from time to time illustrated the distinction in different decisions and we need to refer to only three of them, the first reported in AIR 1982 SC 126 (Kulwant Rai v. State of Punjab) wherein the Supreme Court held that on an application of these principles in a somewhat similar situation, that since there was no intention on the part of the accused to cause death, that the case would fall under Section 304, Part II, IPC. The next decision is reported in AIR 1998 SC 289 : 1998 Cri LJ 495) (Sudhir Samanta v. State of West Bengal) wherein the Supreme Court on the basis of the nature of the injuries reduced the conviction from one under Section 302, IPC to Section 304, Part I, IPC. The last decision is reported in AIR 1998 SC 3115 : (1998 Cri LJ 4560) (State of Punjab v. Gurcharan Singh) wherein again the Supreme Court took note of the fact that the incident took place on the spur of the moment without any specified intention and one blow was inflicted in the course of a sudden incident and the conviction was again reduced from Section 302, IPC to one under Section 304, Part I, IPC. In this case, the Supreme Court has upheld the reduction of sentence by the High Court. In this case, the Supreme Court has upheld the reduction of sentence by the High Court. ( 11 ) HAVING very carefully applied our minds to the position in law, we hold that the accused having been found guilty is liable to be convicted under Section 304, Part I, IPC and not under Section 302, IPC as held by the trial Court. ( 12 ) THE appellant's learned Advocate referred to the age of the accused, the fact that he has no criminal antecedents, his social and economic status and he also pointed out to us the very sad family condition of the accused and he submitted that on the question of quantum of sentence that even if normally the Courts award a heavier sentence under Section 304, Part I, IPC. that having regard to the length of time undergone in custody by the accused and other relevant factors, that the Court must draw a distinction in this case and should be pleased to impose only a moderate punishment. This was opposed by the learned Additional State Public Prosecutor who submitted that the section takes cognizance of the seriousness of the offence and even prescribes rigorous imprisonment for life. He submitted that this was a case that betrayed high levels of aggression displayed on a public road and it is in the public interest that a deterrent sentence to be awarded. We have balanced the submissions of both the sides and considered, as to what would be an adequate and just sentence on the special facts ad circumstances of this case. In our considered view, a sentence of seven years' rigorous imprisonment would meet the ends of justice. But we need to clarify that we uphold the fine of Rs. 1,000/- that has been imposed by the trial Court. ( 13 ) IN the result, the appeal partially succeeds. The conviction and sentence awarded to the appellant-accused by the trial Court is set aside and in modification thereof, the accused-appellant is convicted of the offence punishable under Section 304, Part I, IPC and it is directed that he shall undergo rigorous imprisonment for a period of seven years and pay a fine of Rs. 1,000/ -. We refrain from prescribing any in default sentence. The appellant shall be entitled to set off for the entire period that he has undergone in custody. 1,000/ -. We refrain from prescribing any in default sentence. The appellant shall be entitled to set off for the entire period that he has undergone in custody. ( 14 ) THE appeal partially succeeds and stands disposed of. Appeal partly allowed. --- *** --- .