JUDGMENT 1. - This appeal is directed against the judgment dated 28th March, 1997 passed by the Additional Sessions Judge No. 2, Bhilwara convicting the appellant of offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/-; in default of payment to further undergo one year rigorous imprisonment. 2. Briefly stated the facts of the case are that on 30th March, 1996, P.W.1 Bheru lodged a First Information Report at Police Station, Sadar Bhilwara stating inter alia that on 29th March, 1996 at about 5.00 P.M. in his village at a religious place known as "Sagas Ji" near the well the village people had assembled for offering three goats and bottle of liquor. The villagers included his deceased brother Banshi Lal, appellant Ladu, P.W.5 Sohan Lal, P.W.4 Uda, Magna and another Sohan P.W.6 Leaving his brother Banshi, he returned to the house and went to bed. In the morning at about 7.00 he came to know that Ladu has murdered his brother Banshi by inflicting a knife injury on his neck. He rushed to the spot and found that the dead body of his brother Banshi was lying in the field of Munna Khan. He noticed two injuries on the neck of the dead body. Thereafter, he returned to the village and informed the police on telephone. He also stated that there was a dispute between Banshi and Ladu with respect to land. On this information, police registered a case tor offence under Section 302 I.P.C. and proceeded with investigation. After usual investigation, the police laid charge-sheet against the appellant for offence under Section 302 I.P.C. 3. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 16 witnesses and produced certain document. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. The trial court analysing the evidence on record found the prosecution case proved and as such convicted and sentenced the appellant in the manner noticed above. 4. We have scanned the prosecution evidence carefully and considered the rival contentions. It is not in dispute that deceased died of homicidal death. P.W.7 Dr. The trial court analysing the evidence on record found the prosecution case proved and as such convicted and sentenced the appellant in the manner noticed above. 4. We have scanned the prosecution evidence carefully and considered the rival contentions. It is not in dispute that deceased died of homicidal death. P.W.7 Dr. Avdesh Mathur stated that he conducted the post-mortem of the dead body of Banshi Lal and found the following injuries - "Stab wound sharp in nature 0.7" x 0.5", 2" below Hyoid Cartilage with 0.5" right lateral from mid line cutting down trachea & Rt. carotid artery." He proved the post-mortem report Ex.P.7. In his opinion the deceased died of hemorrhage shock due to cutting down of major (Carotid Artery) and cutting down of trachea. 5. The prosecution in order to prove the case has examined P.W.4 Uda, P.W.5 Sohan Lal, P.W.6 another Sohan Lal, P.W.8 Balu, P.W.9 Barda, P.W.11 Bheru and P.W.14 Kesu as eye witnesses. 6. P.W.4 Uda is an agriculturist by profession, but he also used to perform certain religious formalities at the religious palace "Sagas Ji". He stated that on the fateful day he went to the place "Sagas Ji" on a call from Sita Ram. While he was at a little distance, Sohan in a raised voice shouted that Banshi has been killed by Ladu. He rushed to the spot. He found Banshi Lal lying on the ground. He asked the persons present to inform the police. Thus, he is not an eye witness. 7. P.W.5 Sohan Lal s/o Lala has stated that on the occasion of Dashera at the place of "Sagas Ji, 3 goats and 5-7 bottles were offered. He also stated that appellant Ladu, deceased Banshi, Bhura, Uda, Balu had assembled at the police of "Sagas Ji". He also stated that the said place of "Sagas Ji" is in the field of one Muslim. He also stated that except he and deceased Banshi ail the other persons consumed liquor. When they got up to leave the company the appellant showed knife to Banshi. The deceased retorted by saying that he was not afraid of showing of such sort of knife. He tried to pacify them. Appellant Ladu Got up and inflicted injury with the knife on the deceased Banshi on account of which he fell down. When they got up to leave the company the appellant showed knife to Banshi. The deceased retorted by saying that he was not afraid of showing of such sort of knife. He tried to pacify them. Appellant Ladu Got up and inflicted injury with the knife on the deceased Banshi on account of which he fell down. Nothing has been elicited from the cross examination to discredit the testimony of this witness. 8. P.W.8 Balu has stated that they were consuming liquor in different groups. He was in the group with deceased Banshi, appellant Ladu, Kesu and both Sohan Lal. After they had consumed the liquor, Banshi got up. All of them left the place. While they had travelled hardly about ten Pavdas appellant Ladu abruptly inflicted knife injury on the neck of Banshi. 9. P.W.9 Barda has stated that on the occasion of Dashera, they were consuming liquor at the place "Sagas Ji". He also stated that he was not aware that Banshi had consumed liquor. He further stated that appellant Ladu caused a knife injury on the neck of deceased Banshi on account of which fell down. 10. P.W.11 Bheru has stated almost in the line of P.W.5 Sohan Lal, P.W.14 Kesu has also stated almost in the line of P.W.5 Sohan Lal. Though there in some conflict in the statement of the eye witnesses about the manner in which the incident took place. However all the eye witnesses are consistent on the material particular that the villagers had assembled at the place of "Sagas Ji" and offered bottles of liquor. They also stated that appellant inflicted a knife injury on the neck of deceased Banshi. Nothing has been pointed out to discredit the testimony of the eye witnesses. The statements of the eye witnesses find corroboration from the prompt F.I.R. and the medical evidence. Thus, the prosecution has succeed in establishing the appellant Ladu inflicted a knife injury on the neck of deceased Banshi on account of which he died on the spot. 11. Nothing has been pointed out to discredit the testimony of the eye witnesses. The statements of the eye witnesses find corroboration from the prompt F.I.R. and the medical evidence. Thus, the prosecution has succeed in establishing the appellant Ladu inflicted a knife injury on the neck of deceased Banshi on account of which he died on the spot. 11. As regard the nature of offence, it is submitted by the learned Amicus Curiae that the incident took place all of sudden without any premeditation and the appellant inflicted only single injury and as such it is not a case of murder but of culpable homicide not amounting to murder punishable under Section 304 Part II I.P.C. The learned counsel has placed reliance on a decision of the Apex Court in Jagtar Singh v. State of Punjab, reported in 1983 Cr.L.R. (S.C.) Page 228 . 12. We find substance in the contention of the learned counsel. Looking to the injury caused and the manner in which the incident took place, it cannot be said that appellant intended to cause the particular injury on the neck on account of which Banshi Lal died. Thus, he cannot be clothed with intention to cause death or intention to cause particular injury which proved fatal. Thus, neither Para 1 nor Para 3 of Section 300 is attracted. The appellant can be imputed with knowledge that he was likely to cause injury which was likely to cause death. Thus, the appellant has committed an offence under Section 304 Part II I.P.C. 13. In view of aforesaid, this appeal is partly allowed. The conviction of the appellant under Section 302 I.P.C. and the sentence of imprisonment for life are set aside. The appellant is convicted for offence under Section 304 Part II I.P.C. The appellant is in Jail since the date of arrest i.e. 30th March, 1996. As such he is in Jail for more than five years. Considering all facts and circumstances of the case, the ends of justice would meet if he is awarded a sentence of imprisonment already undergone. The appellant is in Jail. He shall be released forthwith if not required in any other case. *******