JUDGMENT 1. - This appeal has been filed by the accused-appellant against the judgment and order dated 18.3.2000 passed by the learned Additional Sessions Judge, Nimbahera in Session Case No. 6/99 by which he convicted the accused-appellant under section 304 Part I IPC instead of 302 IPC and sentenced him to undergo seven years' RI and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further undergo one year SI. 2. The facts giving rise to this appeal, in short, are as follows : On 27.9.1998 at about 5.45, PW 1 Chatar Singh lodged a report Ex.P/1 before PW 12 Kuber Singh, SHO, Police Station Bhadesar (Chittorgarh) stating inter alia that on that day on the auspicious occasion of Mundane Ceremony of his son Soorveer, he and other members of his family left Sihad for Aavri Mata where prasadi food was prepared and at about 4.30 p.m., after taking food etc., when he and his family members were waiting for Bus to go back, at that time, Chiman Singh, his wife and his two sons asked Udai Singh (hereinafter referred to as `the deceased') why he was standing on the way and upon this, deceased told them that his brother Chatar Singh (PW 1) paid Rs. 101/- and thus, he and others have assembled there after paying rent. It is further stated in the report that, thereafter, Chiman Singh's two sons and his wife caught hold deceased and out of two sons of Chiman Singh, one son attacked deceased with knife and upon this, the person, who caused injury by knife to deceased, was caughthold by them and he was taken to the Police Chowki Aavri Mata and he was handed over to police and, thereafter, they took the deceased it Bhadesar Hospital for treatment, but deceased succumbed to the injury on the way. It is further stated in the report that this incident was witnessed by PW 3 Bhawani Singh, PW 2 -Somnath, PW 4 Dalpat Singh, PW 6 Madan Singh and some other people. It is further stated in the report that accused persons are resident of Udaipur and this incident happened because of the dispute with respect to way. After this incident, Madan Singh, PW 6 and Dalpat Singh, PW 4 brought the person who was handed over to the police at Aavri Mata and his name was Parvat Singh, present accused-appellant. It is further stated in the report that accused persons are resident of Udaipur and this incident happened because of the dispute with respect to way. After this incident, Madan Singh, PW 6 and Dalpat Singh, PW 4 brought the person who was handed over to the police at Aavri Mata and his name was Parvat Singh, present accused-appellant. Upon this report police registered FIR Ex.P/2 and started investigation and during investigation, the post-mortem of the dead body of the deceased was got conducted by PW 14 Dr. B.L. Meena and the post-mortem report is Ex.P/13, where it was opined that cause of death of deceased is shock due to haemorrhage due to rupture of liver by sharp weapon. Thereafter, accused-appellant was arrested on 27.9.1998 through Ex.P/11 by PW 12 Kuber Singh. The accused-appellant gave information Ex.P/12 to PW 12 Kuber Singh about the recovery of knife and pursuant to that information, a knife was recovered at the instance of the accused-appellant through Ex.P/9 in the company of motbirans PW 10 Dhanraj and PW 1 Mohan Singh. After usual investigation, police submitted a challan against the accused-appellant in the Court of Magistrate and from where, the case was committed to the Court of Session and, thereafter, the case was transferred to the Additional Sessions Judge, Nimbahera. On 26.3.1999, the learned Additional Sessions Judge, Nimbahera framed a charge under section 302 IPC against the accused-appellant. The charge was read over and explained to the accused-appellant. He denied the charge and claimed trial. In support of its case, the prosecution examined as many as 17 witnesses and got exhibited several documents. Thereafter, statement of the accused-appellant under section 313 Cr.P.C. was recorded, where he took the following plea : " eSa ml fnu vkWaojh ekrk dh {kf=; lekt dh lky esa ekStwn FkkA nyir flag] Hkokuh flag] enu flag rFkk pRrj flag oxSjk us esjs lkFk iqjkuh nq'euh ds dkj.k ekjihV dh FkhA nyir flag us pkdw ls eq>s ekjus dh dksf'k'k dhA rc mn; flag esjs ihNs [kM+k FkkA blfy;s pkdw esjs ugha yx dj mn; flag ds isV esa yx x;k FkkA " The accused-appellant produced three witnesses in defence and got exhibited some documents also. After conclusion of trial, the learned Additional Sessions Judge, Nimbahera through his judgment and order dated 18.3.2000 convicted the accused-appellant under section 304 Part-I IPC instead of 302 IPC and sentenced in the manner as stated above holding inter alia : 1. That eye-witnesses mentioned in the report Ex.P/1 are believable. 2. That he has also placed reliance on the recovery of knife. 3. That he has rejected the plea of the accused-appellant that it was PW 4 Dalpat Singh, who caused injury to deceased. Aggrieved from the said judgment and order dated 18.3.2000 passed by the learned Additional Sessions Judge, Nimbahera, this appeal has been filed by the accused-appellant. 3. In this appeal, the following submissions have been made by the learned counsel for the accused-appellant : 1. That alleged eye-witnesses produced by the prosecution are close relatives of the deceased and thus, no reliance should be placed on their statements. 2. That so-called recovery of knife is of no value in the present case since the knife was thrown away in the bushes and thus, no question of recovery by digging arises. Hence, this evidence is also not reliable. 3. That the defence of the accused-appellant that it was actually PW 4 Dalpat Singh, who caused injury to the deceased and not accused appellant, has been wrongly rejected by the learned Additional Sessions Judge. 4. That all the same, if the Court comes to the conclusion that the accused-appellant has committed the offence, the act of the accused-appellant falls under section 304 Part-II IPC and not under section 304 Part-I IPC, as held by the learned Additional Sessions Judge. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order of the learned Additional Sessions Judge. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. Before proceeding further, first let us examine the medical evidence of the present case. 7. The post-mortem report of the dead body of the deceased is Ex.P/13 and for that, prosecution has produced PW 14 Dr. B.L. Meena. He has stated in his statement that on 28.9.1998 he was Medical Officer and he conducted the post-mortem of the dead body of the deceased and found the following injury : A incised wound 1" x 2 cm on the Rt. side of the chest. B.L. Meena. He has stated in his statement that on 28.9.1998 he was Medical Officer and he conducted the post-mortem of the dead body of the deceased and found the following injury : A incised wound 1" x 2 cm on the Rt. side of the chest. 5" below & lateral to Rt. Nipple. Wounds edges are sharp-cutting transverse in direction with oozing blooding. He has opined that the cause of death is shock due to haemorrhage due to rupture of liver by sharp weapon, and he has proved post-mortem report Ex.P/ 13. 8. Thus, from the statement of PW 14 Dr. B.L. Meena, the following two facts stand proved : 1. That death of the deceased was homicidal. 2. That deceased received only one injury by sharp-edged weapon. 9. The question which arises for consideration is whether the findings of the learned Additional Sessions Judge convicting accused-appellant under section 304 Part-I IPC are liable to be confirmed or not. 10. In this case, Ex.P/1 is the report which was lodged by PW 1 Chatar Singh on the same day and just after the occurrence. The occurrence in the present case took place on 27.9.1998 at about 4.30 p.m. and the report Ex.P/ 1 has been lodged on 27.9.1998 at about 5.45 p.m. and at the end of the report Ex.P/1, it has been clearly stated that accused-appellant gave the knife blow on the body of the deceased and names of the alleged eye-witnesses, namely, PW 3 Bhawani Singh, PW 2 Somnath, PW 4 Dalpat Singh and PW 6 Madan Singh are also found. Thus, the name of the accused-appellant is found in the report Ex.P/1. 11. From the statements of PW 1 Chatar Singh, PW 2 Somnath, PW 3 Bhawani Singh, PW 4 Dalpat Singh, PW 5 Hari Singh and PW 6 Madan Singh, the fact that quarrel took place at the spur of moment between the accused-appellant and deceased has been established and it has also been established from their statements that thereafter, accused-appellant gave a knife blow on the person of the deceased and deceased was taken to the Hospital and deceased died on the way. 12. 12. In the present case, the alleged witnesses mentioned in the report Ex.P/1 no doubt are members of the family of the deceased, but they are natural one in the sense that they assembled there for purposes of celebrating mundane ceremony of the son of PW 1 Chatar Singh. Thus, their presence at the place of occurrence cannot be doubted. Similarly, presence of the accused-appellant also cannot be doubted at the place of occurrence as accused-appellant has taken the plea that during the scuffle, PW 4 Dalpat Singh took out the knife and while he hitting accused-appellant, it fell on the person of the deceased. Thus, presence of the alleged eye-witnesses as well as of deceased including the accused-appellant at the place of occurrence is not disputed in the present case. 13. In these circumstances, witnesses, namely, PW 1 Chatar Singh, PW 2 Somnath, PW 3 Bhawani Singh, PW 4 Dalpat Singh, PW 5 Hari Singh and PW 6 Madan Singh cannot be termed as interested witnesses as they are natural witnesses on the scene and their statements further gets corroboration from the medical evidence to the extent that incident took place on the spur of moment and, thereafter, accused-appellant gave a knife blow on the person of the deceased, as a result whereof, deceased died. 14. The main argument of the learned counsel for the accused-appellant is that it was PW 4 Dalpat Singh, who caused knife blow on the person of the deceased and not accused-appellant. This argument has been dealt with by the learned Additional Sessions Judge in his impugned judgment in para 26 and the learned Additional Sessions Judge rejected this argument holding that the report Ex.D/4 lodged by accused-appellant before the SP on 22.10.1998 stating that the said injury was not caused by him, but it was caused by PW 4 Dalpat Singh, has been made after a long time and, therefore, it should not have been accepted and in my opinion, the learned Additional Sessions Judge has, rightly rejected the plea of the accused-appellant. Therefore, this Court also takes the same view that it was accused-appellant, who caused injury on the person of the deceased and not PW 4 Dalpat Singh. Therefore, this Court also takes the same view that it was accused-appellant, who caused injury on the person of the deceased and not PW 4 Dalpat Singh. In this respect, it may further be mentioned here that the name of the accused-appellant is found in the report Ex.P/1 which was lodged just after some hours of the alleged incident and, therefore, possibility that it was not accused-appellant, who caused injury is ruled out and the accused-appellant was caught on the spot and, thereafter, he was handed over to the police. Thus, from this point of view also, it cannot be said that the person causing injury was a different person other than accused- appellant. 15. So far as the recovery of knife is concerned, it cannot be connected with the commission of crime in the present case as the same has been recovered from the open place and thus, this recovery is not helpful to the prosecution so far as the present case is concerned. But if this aspect of the evidence is excluded, all the same, it would not affect the case of the prosecution as its case is based on the testimony of the eye-witnesses supported by medical evidence. Apart from this, evidence of recovery of weapon when there is a direct evidence, is not material one. 16. The next question which is to be considered is whether by causing injury as mentioned in the post-mortem report Ex.P/13, the accused-appellant has committed the offence under section 304 Part-I as held by the learned Additional Sessions Judge or not or his act falls under the purview of Section 304 Part-II IPC or not. 17. From the evidence on record, it is very much clear that in the present case, accused-appellant gave only one blow on the person of the deceased and dispute arose between the accused-appellant and deceased on the spur of moment and thus, the act of the accused-appellant cannot be said to be pre-meditated and intention on the part of the accused-appellant to murder deceased cannot also be inferred. In other words, when element of intention is missing, knowledge on the part of the accused-appellant can be attributed and this act of the accused-appellant would be covered by Cl. IV of Section 300 IPC punishable u /s. 304 Part II IPC. 18. In other words, when element of intention is missing, knowledge on the part of the accused-appellant can be attributed and this act of the accused-appellant would be covered by Cl. IV of Section 300 IPC punishable u /s. 304 Part II IPC. 18. In this respect, the following observations of the Hon'ble Supreme Court in State of U.P. v. Indrajeet @ Sukhatha, JT 2000 (9) SC 426: 2000 Cr.L.R. (SC) 736 may be seen : "Indian Penal Code, 1860 - Sections 302, 304, Pt. II - Murder - Accused, a carpenter, entering into the hut of victim at 4.00 a.m. Armed with `rukhani' an implement of carpentry - Only two injuries inflicted, out of which only one sufficient to cause death in normal course - Parents of deceased in hut - If murder with intention to kill. Held, that there is no intention to kill and hence conviction from Section 302 to 304 Part II was rightly converted." 19. Thus, it is held that the accused-appellant by causing injury to deceased in the present case has not committed the offence of culpable homicide amounting to murder punishable under section 302 IPC, but instead has committed the offence of culpable homicide not amounting to murder punishable under section 304 Part-II IPC and not 304 Part-I as held by the learned Additional Sessions Judge and thus, the judgment of the learned Additional Sessions Judge is liable to be altered accordingly. 20. It was also urged by the learned counsel for the accused-appellant that if accused-appellant is convicted under section 304 Part-II IPC, for that offence, he may be sentenced to the period already undergone by him. 21. In the present case, the accused-appellant was arrested on 27.9.1998, it means he has been in jail merely near about for two years. In my opinion, this is not a sufficient sentence for the offence under section 304 Part-II IPC. Thus, the prayer to sentence accused-appellant to the period already undergone by him, is rejected. 22. For the reasons stated above, the accused-appellant is convicted for the offence under section 304 Part-II IPC and in my opinion, ends of justice would be met if he is sentenced to six years' RI instead of seven years and a fine of Rs. Thus, the prayer to sentence accused-appellant to the period already undergone by him, is rejected. 22. For the reasons stated above, the accused-appellant is convicted for the offence under section 304 Part-II IPC and in my opinion, ends of justice would be met if he is sentenced to six years' RI instead of seven years and a fine of Rs. 5,000 /-, in default of payment of fine, to further undergo one year SI.In the result, the appeal filed by the accused-appellant-Parvat Singh is partly allowed. The judgment and order dated 18.3.2000 passed by the learned Additional Sessions Judge, Nimbahera convicting accused-appellant under section 304 Part I IPC and sentencing him to undergo seven years' RI and fine of Rs. 5,000/-, in default of payment of fine, to further undergo one year SI are modified to the extent that accused-appellant-Parvat Singh is convicted under section 304 Part-II IPC in place of 304 Part-I IPC and for that offence, he is sentenced to six years' RI and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo one year SI.Appeal partly allowed. *******