S. K. PHAUJDAR, V. K. CHATURVEDI, JJ. ( 1 ) THE appellant stood convicted under Section 302, IPC in ST No. 360 of 1980 and was sentenced to undergo life imprisonment by an order dated 15-11-1980 recorded by the Nth Addi. Sessions Judge, Mainpuri. Upon appeal, he was directed to be released on bail by an order of this High Court dated 21-11-1980 and he was so released. On a date of hearing neither he was available nor was there ay appearance on his behalf and, as such, the Court had directed issuance of a warrant to arrest against him. Subsequently, however, his learned Counsel appeared and was ready to argue the appeal and, as such, execution of the warrant was stayed till the date of hearing and the stay order was directed to remain in operation till pronouncement of the judgment. ( 2 ) THE prosecution case was initiated when an FIR in case Crime No. 138 of 1978 under Section 302, IPC was lodged at Police Station Shikohabad, District Mainpuri, at about 8. 15 p. m. on 21-2-1978 on the report of Mohd. Hanif. The FIR spoke of an incident that took place at about 7 p. m. on that very date. According to the report of Mohd. Hanif, his brother Bhurey owed a sum of money from Muquid on account of unpaid wages. On the date and time of incident Mohd. Hanif and his brother Bhurey were returning from Sabzi Mandi when they met Muquid and his father Chhotey near the shoe shop of Gyas. Bhurey demanded his due from Muquid and they took ill of it and an oral dual commenced between them (KAHAN SUNAN HONE LAGI ). It was stated that Chhotey Khan uttered that this man had lost his balance and he would be paid his money. Uttering these words. Chhotey Khan caught hold of Bhurey and Muquid took out a knife from his pocket and stabbed Bhurey causing serious injuries. When the oral quarrel was going on Mohd. Sharif, Banney, Mohd. Rafiq and Nizamuddin as also others had assembled there. They had also seen the incident. After causing injuries to Bhurey and taking him to be dead, the assailants fled towards Mainpuri road, Bhurey was being carried to the hospital but he breathed his last on the way. When the oral quarrel was going on Mohd. Sharif, Banney, Mohd. Rafiq and Nizamuddin as also others had assembled there. They had also seen the incident. After causing injuries to Bhurey and taking him to be dead, the assailants fled towards Mainpuri road, Bhurey was being carried to the hospital but he breathed his last on the way. He was taken to the police station and an oral report was made which was reduced into writing. During investigation, blood-stained bricks and non-stained bricks were recovered from the spot. An inquest was made on the dead-body and, thereafter, it was forwarded for post-mortem examination. The doctor held autopsy on the dead-body of Bhurey on 22-2-1978 at about 2. 15 p. m. , the dead-body was identified by Constables Gyan Singh and Raghunath Singh of Shikohabad Police Station. It was the dead-body of a male aged about 22 years and almost a day had passed since the time of death. There was one incised wound of 2 cm x 1 cm x 2 cm deep on the outer side of left arm on the lower part. A second incised wound of 4 cm x 1/2 cm into muscle deep was also thereon the back on the left forearm, again in the lower part and third incised wound was found having a dimension of 2 cm x 2 cm x cavity deep on the abdomen and through this incision the omentum had come out. The spot was about 4-1/2 cm above the umbilicus. On internal examination, the peritoneum was found perforated corresponding to injury No. 3. The stomach was also found perforated death was due to shock and haemorrhage as a result of injury No. 3. The doctor found a kurta a baniyan and one pant on the dead-body, which was made over to the accompanying constables. ( 3 ) THE trial Judge framed a charge under Sections 302/34, IPC against Muquid and Chhotey to which each of them pleaded not guilty. The prosecution examined 7 witnesses. The accused persons were examined under Section 313, Cr. P. C. and through his judgment, as aforesaid, Chhotey Khan was acquitted and the present appellant was convicted and sentenced. The State had not preferred any appeal against the order of acquittal. ( 4 ) THE witnesses to the occurrence were PW 1. Mohd. Hanif and PW 3 Mohd. Sharif. The accused persons were examined under Section 313, Cr. P. C. and through his judgment, as aforesaid, Chhotey Khan was acquitted and the present appellant was convicted and sentenced. The State had not preferred any appeal against the order of acquittal. ( 4 ) THE witnesses to the occurrence were PW 1. Mohd. Hanif and PW 3 Mohd. Sharif. Hanif was the maker of the FIR and the name of Sharif had come in the FIR itself as a person who had reached the spot. Both of them had reported the prosecution story and had stated about unpaid wages due to Bhurey, the oral quarrel between them on demand by Bhurey and about stabbing by Muquid. However, there is a difference in their statements regarding the participation of Chhotey and PW 3 completely ruled out the presence of Chhotey for which Chhotey was acquitted by the trial Judge. It is there in the statement of Mohd. Hanif that over the demand of payment of wages an oral quarrel was going on when stabbing had taken place. From the statement of Sharif also this picture emerges, about oral quarrel and about death of Bhurey at the spot itself. The spot was identified by the Investigating Officer and the place of occurrence may not be disputed. The learned trial Judge had given reasons for believed the two eye-witnesses, who were to be believed despite non-examination of others, we find no reason to interfere with his appreciation of the evidence. However, a question was posed by the learned Counsel for the appellant, in addition to the other points raised by him, that even though the whole prosecution story be believed, it was not a case of murder but it was one covered by Section 304, IPC, precisely under Part II thereof. The factual background for this submission was the admitted fact that there was an oral quarrel between Bhurey and Muquid for some time before the actual stabbing was done. ( 5 ) SECTION 299 defines what is a culpable homicide. Section 300 indicates under what circumstances a culpable homicide wound amount to murder. There are certain exceptions appended to Section 390 indicating under what circumstances a culpable homicide may not amount to murder. Exception 4 reads as follows:exception 4. ( 5 ) SECTION 299 defines what is a culpable homicide. Section 300 indicates under what circumstances a culpable homicide wound amount to murder. There are certain exceptions appended to Section 390 indicating under what circumstances a culpable homicide may not amount to murder. Exception 4 reads as follows:exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and. without the offenderts having taken undue advantage or acted in a cruel or unusual manner. Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault. ( 6 ) IT appears that to claim protection under this exception, it must be on record from evidence that there was no pre-meditation in causing the culpable homicide and it must have been caused in a sudden fight in a heat of passion upon a sudden quarrel. There is a further requirement that the offender must not have taken undue advantage of the other side or must not have acted in an unusual and cruel manner. Section 304, IPC provides for punishment for culpable homicide, which does not amount to murder. In the first part thereof, this offence is punishable with imprisonment for life or for imprisonment of either description extending to 10 years together with fine if the act for which death is caused is done with the intention of causing of death or of causing such bodily injury as was likely to cause death. In the second part of Section 304, offence is punishable with imprisonment, which might extend to 10 years or with fine or with both if the act was done with the knowledge that the bodily injury inflicted was likely to cause death but there was no intention of causing death or causing bodily injury likely to cause death. ( 7 ) IN the instant case, admitted facts indicate that there was no premeditation. Whether Bhurey really owed the unpaid wages is not a question to be determined by us. It is a fact, however, that in a public place in front of shop of certain persons, he made a demand from Muquid in a chance meeting with him. It must have annoyed Muquid and an oral dual followed. Whether Bhurey really owed the unpaid wages is not a question to be determined by us. It is a fact, however, that in a public place in front of shop of certain persons, he made a demand from Muquid in a chance meeting with him. It must have annoyed Muquid and an oral dual followed. During this sudden quarrel only, the stab injury was given and an intention to kill may not be inferred. We may safely hold that from the facts and circumstances it is not a case of murder but is a case of culpable homicide punishable under Section 304 IPC. ( 8 ) WE are, however, still confronted with the question whether it will come within the first part of Section 304 or the second part thereof. The injuries that were caused are two on non-vital parts (hands) and abdomen through which the omentum had come out and the stomach was also punctured. In this situation, we may refer to certain decisions of the Supreme court touching the instant point. In the case of Joseph v. State of Kerala, death was caused during a quarrel over a trivial incident and the weapon used was wooden stick but assault was made on the head. It was held that stick was not a deadly weapon and intention to cause injury sufficient to cause death in an ordinarily course of nature was not established. The conviction under Section 302, IPC was altered to one under Section 304, Part II, and the appellant was sentenced to five years R. 1 instead of life imprisonment awarded to him. ( 9 ) IN another case reported in Ram Prakash Singh v. State of Bihar there was death caused in a sudden quarrel after exchange of hot words between the assailant and the deceased. The accused had inflicted a single knife injury to the deceased and it was not aimed at a particular part of the body. Medical evidence did not state that the injury was sufficient in the ordinary course to cause death. Conviction under Section 302 was altered to one under Section 304, Part II, IPC and because the accused had stayed in jail for sufficient period, he was sentenced to the period already undergone. ( 10 ) THERE is yet third decision on this point, again from the Supreme Court, as reported in A. I. R. 1998 S. C. 2060. Conviction under Section 302 was altered to one under Section 304, Part II, IPC and because the accused had stayed in jail for sufficient period, he was sentenced to the period already undergone. ( 10 ) THERE is yet third decision on this point, again from the Supreme Court, as reported in A. I. R. 1998 S. C. 2060. Here we had a case of a dispute between two neighbours over a boundary-wall. Quarrel took place between them. The accused then brought a knife from his house and hurled it on the complainant. The knife, however, hit the brother of the complainant who died. The Court held that the accused had no intention to cause the death of the complainantts brother and the conviction was altered to Section 302, IPC to Section 304, Part I, only. ( 11 ) IN the case of Kesab Abdulla Hafiz, again there was a charge and conviction under Section 304, Part I, IPC. The evidence of the doctor indicated that an urgent operation was necessary and the nature of injury suggested that instrument of stabbing had moved inside the intestine and an injury inflicted with sharp weapon could be called dangerous. The evidence of the eyewitnesses showed that the accused tried to give a second blow but it had missed. The Court held that the guilty intention of the accused to cause bodily injury was apparent and he was rightly convicted under Section 304, Part I, IPC. ( 12 ) FOR the instant case, we may look to the statement of Dr. R. J. Jam. Although he had stated that death was caused due to shock and haemorrhage as a result of injury No. 3, his statement is silent if the injury was sufficient in the ordinary course to cause death. It is true that there were two stab injuries on the hands of the deceased but only one of the injuries proved fatal and looking to the background of sudden quarrel and absence of pre-meditation together with the absence of statement on the part of the medical expert that the injury was sufficient in the ordinary course of nature to cause death, it could only be stated that the accused had no intention to cause death or to cause such bodily injury as was likely to cause death but he had certainly the knowledge that the injury he was causing might cause death. On the question of conviction, therefore, we accept the contention of the learned counsel that the case is covered not by Part I of Section 304 but by Part II only thereof. For this offence, a sentence to Ri of five years would, in our view, meet the ends of justice. ( 13 ) THE appeal stands partly allowed. Conviction under Section 302, IPC is converted to one under Section 304, Part II, IPC and instead of a sentence of life imprisonment, we direct that the appellant Muquid is to undergo Ri for five years. The interim stay on the warrant of arrest stands recalled. The CJM will issue all necessary processes to compel the attendance of Muquid in Court and send him to prison to serve opt the imprisonment, according to law. Appeal partly allowed. .