JUDGMENT - VISHNU SAHAI, J.:---The appellant aggrieved by the judgment and order dated 4th June, 1996 passed by the Additional Sessions Judge, Thane, in Sessions Case No. 542/93, whereby he has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- in default to undergo R.I. for 2 months for the offence under section 302 I.P.C. has come up in appeal before us. 2.The prosecution case in brief, as emerging from the statement of the informant Ashok Pawar P.W. 2, the solitary eye witnesses of the incident, is as under: On 12th January, 1993 at about 11 a.m. the informant Ashok Pawar P.W. 2 and the deceased Suresh Shelar were present in the house of Ambaji in village Sarsola. The appellant also came in front of the said house. Thereafter the informant, Suresh Shelar and the appellant came in the square near Hanuman temple where the appellant caught the collar of the informant's shirt and asked him to give the knife to him. Thereafter there was an exchange of hot words between the informant and the appellant during which the deceased intervened. One Raju Meher who was also present there advised the informant and the appellant not to quarrel. Thereafter a quarrel ensued between the deceased Suresh Shelar and the appellant. The informant advised Suresh Shelar not to quarrel with the appellant and returned home. Thereafter Suresh Shelar, the informant and the appellant left for their home. Suresh Shelar was proceeding ahead and the informant was following him. On the way the informant met his friend Babu and started talking with him. Suresh Shelar proceeded further and waited for the informant near Samadhan Bar. The appellant came running and caught hold of Suresh Shelar. He told him to say whatever he had to say. A quarrel and exchange of hot words ensued between the appellant and Suresh Shelar during the course of which the appellant whipped out a knife from his waist and inflicted a solitary blow with the same on the left shoulder of Suresh Shelar, resulting in his falling on the ground. The appellant then ran away. After the appellant had run away the informant went to Police Station, Nerul and informed P.H.C. Suresh Kosbe P.W. 7 that the appellant had assaulted Suresh Shelar with a knife near Samadhan Hotel. The appellant then ran away. After the appellant had run away the informant went to Police Station, Nerul and informed P.H.C. Suresh Kosbe P.W. 7 that the appellant had assaulted Suresh Shelar with a knife near Samadhan Hotel. P.H.C. Suresh Kosbe P.W. 7 sent two constables along with the informant to the scene of offence. They and the informant brought the injured Suresh Shelar in an auto-rickshaw to Police Station Nerul. Suresh Shelar was unconscious at that time and his clothes were stained with blood. P.H.C. Suresh Kosbe P.W. 7 immediately addressed a letter to the Medical Officer and sent Suresh Shelar with constables for medical treatment. Thereafter he reduced the first information report into writing. At about 12.15 or 12.30 noon while he was recording the F.I.R. (Exhibit 11) he received a phone call from Civil Hospital, Thane, that Suresh Shelar had succumbed to his injuries. He completed the recording of the F.I.R. and registered on its basis C.R. No. 1-2 of 1993. 3.The post mortem examination on the corpse of Suresh Shelar was conducted the same day between 7 and 8 p.m. at Civil Hospital, Thane by Dr. Anil Sawant P.W. 1 who found on it one incised wound on left supra clavicular region at middle 1/3rd verticle size 2" x 1/2" x 4½" deep into lung. On internal examination Dr. Anil Sawant found that left lung had collapsed. In the opinion of Dr. Anil Sawant the deceased died on account of injury to left lung and the said injury was sufficient in the ordinary course of nature to cause death. 4.The investigation was conducted in the usual manner by the Assistant Commissioner of Police Pratapsingh Patankar P.W. 6. He visited the place of the incident the same day and inspected it on pointing out of the complainant Ashok Pawar P.W. 2. He collected therefrom blood stained earth and plain earth under panchanama. The same day he recorded the statements of six witnesses and arrested the appellant. He seized the clothes of the appellant under a panchanama Exhibit 13 in the presence of Public Panch Chandrakant Vaity P.W. 3 on 14-1-1993. During the course of interrogation the appellant stated that he could have the knife recovered. He called for two panchas, one of whom Chandrakant Vaity has been examined as P.W. 3 and recorded the said information vide Exhibit 14. During the course of interrogation the appellant stated that he could have the knife recovered. He called for two panchas, one of whom Chandrakant Vaity has been examined as P.W. 3 and recorded the said information vide Exhibit 14. Thereafter the appellant led them to village Sarola where from a room, which was under construction, situated near the temple, he produced a blood stained knife which was concealed beneath the sand. The said knife was seized under a panchanama Exhibit 14-A. He sent the said knife and some other articles which were recovered from the place of the incident to the Chemical Analyst and finally submitted the chargesheet in due course. 5.The case was committed to the Court of Sessions in the usual manner where the appellant was charged for an offence under section 302 I.P.C., to which charge he pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined 7 witnesses. One of them Ashok Pawar P.W. 2 was examined as an eye-witness. The prosecution also examined Assistant Commissioner of Police Pratapsingh Patnakar P.W. 6 and Public Panch Chandrakant Vaity P.W. 3 before whom the blood stained clothes of the appellant and the knife were recovered on the pointing out of the appellant. The learned trial Judge believed the evidence of the said witnesses and convicted and sentenced the appellant in the manner stated above. 6.We have heard the learned Counsel for the parties and persued the entire evidence on record. In our view this appeal deserves to be partly allowed inasmuch as we feel that no offence under section 302 I.P.C. P.C. is made out against the appellant and only one under section 304(II) I.P.C. is made out against him. 7.So far as the involvement of the appellant in the incident is concerned the same has been established beyond pale of doubt by the credible evidence furnished by the informant Ashok Pawar P.W. 2, the Public Panch Chandrakant Vaity P.W. 3 and Assistant Commissioner of Police, Pratap Singh Sampatrao Patnakar P.W. 6. 8.As is evident from para 2 the ocular account has been furnished by Ashok Pawar P.W. 2. In the said paragraph we have given out the prosecution story on the basis of the recitals contained in his examination in chief, and since we do not want to over burden our judgment we are not reproducing it graphically. 8.As is evident from para 2 the ocular account has been furnished by Ashok Pawar P.W. 2. In the said paragraph we have given out the prosecution story on the basis of the recitals contained in his examination in chief, and since we do not want to over burden our judgment we are not reproducing it graphically. In short Ashok Pawar P.W. 2 stated that on the date of the incident at about 11 a.m. while there was a quarrel between him and the appellant the deceased Suresh Shelar intervened. However, at his behest the situation was pacified. Thereafter when the informant Suresh Shelar and the appellant proceeded for their homes on the way the informant met Babu and started talking to him. In the meantime the appellant came and caught hold of Suresh Shelar. Thereafter an altercation and exchange of hot words ensued between him and Suresh Shelar whereafter the appellant look out a knife from his waist and inflicted a solitary blow on the left shoulder of Suresh Shelar resulting in his falling down. Thereafter the informant went to the Police Station, Nerul and informed P.H.C. Suresh Kosbe P.W. 7 about the incident. P.H.C. Suresh Kosbe P.W. 7 sent two constables to the place of incident. Thereafter the informant and the two constables brought Suresh Shelar to the Police Station. Suresh Shelar was sent to Civil Hospital and the F.I.R. of Ashok Pawar was recorded. 9.We have examined the version of Ashok Pawar the informant in the F.I.R. and we find him to be an implicitly truthful witness. In the first place it should be borne in mind that he has explained the circumstances in which he saw the incident. Secondly it should be remembered that the manner of assault as furnished by him is corroborated by the medical evidence. He stated that the appellant inflicted a solitary knife blow on the left shoulder of Suresh Shelar and the evidence of Dr. Anil Sawant who performed the autopsy on the corpose of Suresh Shelar corroborates this inasmuch as he found an incised wound on the left supra clavicular region of Suresh Shelar. Thirdly it should be borne in mind that Ashok Pawar P.W. 2 is a wholly independent witness who had no animus or rancor against the appellant. In our view in the absence of it he would not have falsely implicated the appellant. Thirdly it should be borne in mind that Ashok Pawar P.W. 2 is a wholly independent witness who had no animus or rancor against the appellant. In our view in the absence of it he would not have falsely implicated the appellant. 10.We feel that the solitary statement of Ashok Pawar P.W. 2 is itself sufficient to fix the involvement of the appellant in the crime. After all the time-honoured rule of appreciation of evidence is that evidence should be weighed and not counted. It is on this salutary rule that the provision contained in section 134 of the Evidence Act, in terms "no particular number of witnesses shall in any case be required for the proof of any fact" are founded. 11.However, we have bonus evidence against the appellant in the form of recovery of his blood stained clothes and the recovery of knife at his pointing out in the presence of Public Panch Chandrakant Vaity P.W. 3 and Pratapsingh Patankar P.W. 6, Assistant Commissioner of Police. Earlier we have referred to the manner in which the said recoveries have been effected. It is pertinent to mention that neither of these two witnesses had any animus, rancor or ill will against the appellant and in the absence of the same, in our view would not have falsely deposed about these recoveries. It is pertinent to mention that although they were subjected to lengthy cross examination but nothing was extracted therefrom which could make us doubt their credibility. It needs to be pointed out that the clothes of the appellant viz. shirt and pant, and the knife were sent to the Chemical Analyst who found human blood bearing "A" group on the shirt and the knife. It is significant to point out that "A" group is the blood group of the deceased. In our view, the recovery evidence also incriminates the appellant. 12.The only question which remains is whether the trial Court acted correctly in convicting the appellant for the offence under section 302 I.P.C. In our view he erred in convicting him for the said offence and instead should have convicted him for the offence under section 304(II) I.P.C. We have seen that there was no enmity between the appellant and the deceased. We have also seen that the solitary knife blow was inflicted by the appellant on the person of the deceased after a quarrel and exchange of hot words between him and the deceased had taken place. We have further seen that the appellant did not repeat the knife blow inspite of the fact that the deceased was not dead and died later on. If he wanted to commit the murder of the deceased he would have atleast repeated the blow. In such a factual matrix, in our view, the appellant did not have the intention to inflict the injuries sufficient in the ordinary course of nature of cause death. However, we make no bones in observing that it can be safely presumed that when the appellant inflicted the solitary knife blow on the left shoulder of the deceased he had the knowledge of his death as contemplated by Clause Thirdly of section 299 I.P.C. the breach of which is punishable under section 304(II) I.P.C. Our view is fortified by two decisions of the Supreme Court viz. A.I.R. 1983 S.C. p. 284 (Jawahar Lal and another v. State of Punjab)1, and A.I.R. 1982 S.C. p. 126 (Kulwant Rai v. State of Punjab)2. In both the decisions although the injury suffered by the deceased was on vital part of the body and according to medical evidence was sufficient in the ordinary course of nature to cause death, the Supreme Court, in the factual matrix of the case, took the view that the accused did not intend causing it. Consequently it held that Clause Thirdly of Section 300 I.P.C. would have no application and converted the conviction from 302 I.P.C. to one under section 304(IIs) I.P.C. It would be apposite to refer to some of the observations contained in para 15 of A.I.R. 1983 p. 284 (supra). They read thus : "..... ..... Merely because the blow landed on a particular spot on the body, divorced from the circumstances in which the blow was given, it would be hazardous to say that the 1st appellant intended to cause that particular injury ...... ........". We feel that the ratio laid down in the said decision is wholly applicable in the instant case. ..... Merely because the blow landed on a particular spot on the body, divorced from the circumstances in which the blow was given, it would be hazardous to say that the 1st appellant intended to cause that particular injury ...... ........". We feel that the ratio laid down in the said decision is wholly applicable in the instant case. 13.We are now left with the question as to what sentence should be awarded to the appellant for the offence under section 304(II) I.P.C. We have anxiously considered the said question and feel that a sentence of 7 years R.I. would meet the ends of justice. 14.In the result this appeal is partly allowed. Although we acquit the appellant for the offence under section 302 I.P.C. and set aside his sentence of imprisonment for life and fine of Rs. 500/- and two months R.I. in default thereunder, we however, find the appellant guilty for the offence under section 304(II) I.P.C. and sentence him to undergo 7 years R.I. From the operative part of the impugned judgment it appears that appellant is in jail from 12-1-93. This means that he has already served out the sentence of 7 years R.I. imposed on him by us. If this is so he shall be released forthwith unless wanted in some other case. Office to communicate the operative part of this order forthwith. Appeal partly allowed. -----