JUDGMENT 1. - This appeal is directed against the judgment dated 8.1.1999 passed by Additional Sessions Judge, Nohar convicting the appellant for offence under Section 302 I.P.C.and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10000/-. 2. The prosecution case as disclosed during the trial is that P.W.1. Rajendra alias Raju, Hari Singh and deceased Ram Dutt all residents of Khoda were staying in a rented house of one Gulab Ram at Rawatsar for appearing in the examination. In the neighbourhood P.W. 4 Mamraj and P.W.2 Har Dutt were living in the house of Lal Chand. On 13.4.98 Hari Singh was sent to khoda for collecting ration. Therefore, P.W. 1. Rajendra and deceased Ram Dutt went to the house of P.W.4 Mamraj for dinner. While P.W.4 Mamraj, P.W.2 Har Dutt, P.W.1 Rajendra and deceased Ram Dutt were taking food, the appellant Ramesh arrived. He was a driver on a Jeep. All the five dinnered together. After finishing the food, deceased Ram Dutt reminded appellant Ramesh of repayment of loan of Rs. 200/-. He stated that Rs. 150/- was paid and as such only a sum of Rs. 50/- was outstanding. The appellant Ramesh expressed that at the moment, he was having only Rs. 10/- with him and that too he required for seeing movie. A verbal altercation took place between them and they went outside the house. All of a sudden, the appellant Ramesh stabbed knife in the fell down. Ram Dutt was taken to the hospital, where he succumbed to the injuries. A report of the incident was lodged by P.W.1 Rajendra alias Raju at police Station, Rawatsar on 13.4.98. at 8.30 RM. The Police registered a case for offence 302 IPC Station 302 and I.P.C.and proceeded with investigation. The police prepared the inquest and sent the dead body for autopsy. The appellant was apprehended. The knife was recovered in pursuance of the information given by him. After usual investigation, the police laid charge-sheet against the appellant for offence under section 302 I.P.C. 3. The appellant pleaded not guilty and faced trial. The prosecution in support of the case examined 9 witnesses and produced certain documents. The appellant in his statement under section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing him. The appellant pleaded not guilty and faced trial. The prosecution in support of the case examined 9 witnesses and produced certain documents. The appellant in his statement under section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing him. The trial court relying on the testimony of the eye witnesses corroborated by the prompt F.I.R. medical evidence and recovery of the knife found the prosecution case proved. He convicted and sentenced the appellant in the manner noticed above. 4. We have heard Mr. Doongar Singh the learned counsel for the appellant and the learned Public Prosecutor and perused the record carefully. The defence has not contested that deceased Ram Dutt died of homicidal death; otherwise also it is proved by the statements of P.W.1 Rajendra. P.W.4 Mamraj, P.W.2 Har Dutt and the medical evidence P.W. 6 Dr. Hanuman Singh. 5. P.W.2 Har Dutt has stated that he was staying in a rented house along with P.W.4 Mamraj at Rawatsar. On 13th April,1998 at about 6.00 RM. deceased Ram Dutt and P.W.1 Raju visited their room and expressed desire to have food with them, as they were not having ration with them and Hari Singh had gone to the village for collecting the same. All the four engaged themselves in cooking the food. At that time appellant Ramesh arrived. He also expressed his desire to join them in dinner. All the five took dinner together. At the time of taking dinner, deceased Ram Dutt reminded appellant Ramesh of the loan of Rs.200/- out of which Rs.150/- were paid and Rs. 50/- was due. He asked him to repay the balance amount of Rs.50/-, The appellant Ramesh stated that he was having only Rs.10/- with him and that too, it was required for seeing the movie. The deceased Ram Dutt told Ramesh that he was in need of Rs. 10/- for arranging the ration. Both of them went out side the house. A verbal altercation took place between them. The out cry of Ram Dutt attracted P.W. 1 Raju and P.W. 4 Mamraj. He further stated that Ramesh inflicted two knife blows on Ram Dutt. He further stated that Ramesh ran away with knife. Ram Dutt was brought inside the house. Thereafter, he was taken to the hospital on a motor-cycle. A verbal altercation took place between them. The out cry of Ram Dutt attracted P.W. 1 Raju and P.W. 4 Mamraj. He further stated that Ramesh inflicted two knife blows on Ram Dutt. He further stated that Ramesh ran away with knife. Ram Dutt was brought inside the house. Thereafter, he was taken to the hospital on a motor-cycle. The statements of P.W. 1 Raju, P.W. 4 Mamraj and P.W. 2 Har Dutt are almost on the same line. There is lengthy cross examination from the said witness, but nothing substantial has been elicited to discredit their testimony. The presence of the witnesses is natural. There is no reason to disbelieve the statements of the aforesaid witnesses of the occurrence. 6. P.W. 9 Bhawani Singh is the Investigating Officer. He apprehended the appellant on 14.4.98 vide Ex. P.20. In pursuance of the information given by the appellant vide Ex. P21 a blood stained knife was recovered vide Ex. P.7 in presence of the motbir P.W.3 Mamraj. The knife was seized, sealed and packed on the spot. If was sent to the Forensic Science Laboratory. The prosecution has produced the link evidence to establish that the packed seized, sealed on the spot remained intact till it reached to the Forensic Science Laboratory. It is not necessary to deal with the evidence on this aspect as the same has not been challenged by the learned counsel. The Forensic Science Laboratory Report Ex. P23 shows that the blood found on the knife was of human origin. Thus, the prosecution has established beyond any manner of doubt that the appellant committed the murder of deceased Ram Dutt. 7. As to the nature of offence, it is argued by Mr. Doongar Singh the learned counsel for the appellant that the incident is preceded by a quarrel between the deceased and the appellant on a via issue of payment of Rs. 10/-. Suddenly, the appellant alleged to have inflicted knife blow in the chest of the deceased. On these facts, it cannot be said that the appellant intended to commit the murder of deceased Ram Dutt. Thus, it is a case of culpable homicide not amounting to murder punishable under Section 304 part II I.P.C. instead of Section 302 I.P.C. The learned counsel has placed reliance on a decision of the Apex Court in Bhera v. Relied. On these facts, it cannot be said that the appellant intended to commit the murder of deceased Ram Dutt. Thus, it is a case of culpable homicide not amounting to murder punishable under Section 304 part II I.P.C. instead of Section 302 I.P.C. The learned counsel has placed reliance on a decision of the Apex Court in Bhera v. Relied. The State of Rajasthan, (1999 Cr.L.R. (SC) Page 636) . The learned counsel also placed reliance on another decision of the Apex Court in Surindra Kumar v. Union Territory, Chandigarh, (1989 S.C.C. (Cri.)) Page 348) . On the other hand, it is contended by learned Public Prosecutor that the very fact that the deceased received three injuries shows that the appellant acted mercilessly and he intended to commit murder of Ram Dutt. Thus, according to the learned Public Prosecutor the appellant has been rightly convicted for offence under Section 302 I.P.C. 8. Before averting to rival contentions, it would be convenient to deal with the medical evidence, P.W. 6 Dr. Hanuman Singh has stated that he conducted the autopsy of the dead body of deceased Ram Dutt on 14.4.98 vide Post-mortem Report Ex. P11 and noticed following injuries: (1) Incised wound 3x2x12 cm size situated at left 5th intercostal space at axil lay axillary line extending upward antero medially. Wound pierce 3rd intercostal space of mid axillary line. (2) Incised would 3x1x5 cm size at left posterior axillary line at 7th rib extending upward medially & posteriorly. (3) Incised wound 2x1x4 cm size at medial to left scapula at 5th rib extending upward medially & posteriorly. Hanuman Singh has stated that all the three injuries were caused by sharp edged weapon and they were ante mortem in nature. In his opinion the cause of death was due to syncope for excessive bleeding from the injuries. He also stated that injury No. 1 was sufficient in ordinary course of nature of cause death. 9. In Bhera v. The State of Rajasthan (supra) the accused is said to have demanded the repayment of loan due from the deceased. A quarrel took place between the accused and the deceased. Suddenly the accused brought out a knife and gave blow on the chest of the deceased. From the evidence, the court found that the accused and deceased had some quarrel in the house. A quarrel took place between the accused and the deceased. Suddenly the accused brought out a knife and gave blow on the chest of the deceased. From the evidence, the court found that the accused and deceased had some quarrel in the house. They went out of the house and there was a quarrel on the road as well. Suddenly, the accused brought out the knife and gave a blow which struck on the chest of the deceased. On these facts, the court held that it cannot be held that accused gave blow with an intention to commit murder of the deceased. The Apex Court converted the conviction to Section 304 part II I.P.C. from Section 302 I.P.C. This case was sought to be distinguished by the learned Public Prosecutor oh the ground that in the instant case there are more than one injury. Per contra it is submitted by Mr. Doongar Singh that number of wounds caused during the occurrence is not a decisive factor. The learned counsel has placed reliance on the decision of the Apex Court in Surendra Kumar v. Union Territory, Chandigarh (supra). 10. In the instant case, even according the prosecution, [there was no previous ill-will between the parties. On the contrary, the relations were cordial. The deceased and appellant along with the other eye witnesses had taken the dinner together. The incident took place on a trivial issue of payment of Rs. 10/-. Thus, it was a sudden fight. There was no pre-meditation. The act was done in heat of passion and the appellant had not taken any undue advantage of acted in a cruel and unusual manner. Thus, Exception (4) of Section 300 I.P.C. is attracted. Under these circumstances, the appellant is liable to be convicted for offence under Section 304 Part I I.P.C.instead of Section 302 I.P.C. 11. In the result, this appeal is partly allowed. The judgment of the Additional Sessions Judge, Nohar dated 8.1.99 is modified. The conviction of the appellant under Section 302 I.P.C. is altered to Section 304 Part I I.P.C. He is sentenced to 7 years rigorous imprisonment. The fine of Rs. 10,000/- remains intact. On the recovery of the amount of Rs. 10,000/- it shall be paid to the legal representatives of victim as per the order of the trial court. The appellant is in Jail. The fine of Rs. 10,000/- remains intact. On the recovery of the amount of Rs. 10,000/- it shall be paid to the legal representatives of victim as per the order of the trial court. The appellant is in Jail. He will serve out the remaining part of sentence.Appeal partly allowed. *******