Honble SHARMA, J.–Appellant Ajay Singh and Sanjay Singh were indicted before the learned Special Judge (Prevention of Sati) and Additional Sessions Judge in Sessions Case No. 3/95. They were found guilty, convicted and sentenced vide judgment dated July 26, 1995 as under:- Ajar Singh : U/s. 302 IPC to undergo imprisonment for life and fine of Rs. 500/-, in default to further undergo sentence of two months RI. Sanjay Singh : U/s. 302/34 IPC to undergo imprisonment for life and fine of Rs. 500/-, in default to further undergo sentence of two months RI. (2). Against this judgment of conviction that the appellants have preferred instant criminal appeal. (3). It is the prosecution case that on March 9, 1992 Gurucharan Singh (PW2) submitted a written report (Ex.P1) with the Police Station Ramganj, Jaipur around 6.00 P.M. stating therein that at 4.00 P.M. when he reached at the chowk near the house of Billu, he found Ajay Singh and Billu @ Kulwant Singh quarreling. Billu was demanding money from Ajay and in turn Ajay was abusing him. In the meanwhile Sanjay, younger brother of Ajay, came rushing over there and they started beating Billu with fists and legs. Informant Gurucharan Singh and Sharad Saxena made an attempt to intervene but failed. Ajay then went inside his house and came out with a knife in his hand. At the same time Sanjay caught hold of Billu and Ajay inflicted knife blow on the abdomen of Billu. Both Ajay and Sanjay thereafter fled away. Billu was taken to the hospital, where he was declared dead. Police Station Ramganj, Jaipur registered a case u/s 302/34 IPC and investigation commenced. Site was inspected, inquest report was drawn and statements of witnesses u/s 161 Cr.P.C. were recorded. Appellants were arrested. The information supplied by the appellant Ajay Singh was recorded and at his instance knife was recovered. Relevant seizure memos were drawn. Post mortem of dead body of Billu @ Kulwant was conducted and on completion of investigation, the Investigation Officer filed charge sheet. In due course, the case came up for trial before the learned trial Judge. Charge u/s 302 IPC was framed against appellant Ajay Singh, whereas Sanjay Singh was charged u/s 302/34 of the IPC. The appellants denied the charges and claimed trial. The prosecution examined as many as 13 witnesses. Thereafter, the statements of appellants u/s 313 Cr.P.C. were recorded. In due course, the case came up for trial before the learned trial Judge. Charge u/s 302 IPC was framed against appellant Ajay Singh, whereas Sanjay Singh was charged u/s 302/34 of the IPC. The appellants denied the charges and claimed trial. The prosecution examined as many as 13 witnesses. Thereafter, the statements of appellants u/s 313 Cr.P.C. were recorded. As many as four witnesses were recorded in defence. On hearing final submission, the learned trial Judge conviction the appellants as indicated hereinabove. (4). Mr. A.K. Gupta learned counsel appearing for the appellants canvassed that the occurrence had taken place at the shop belonging to the appellants and genesis of the incident appears to have been concealed by the prosecution. (5). It is urged by the learned counsel that appellant Ajay Singh also received three injuries on his person and the said injuries were not explained by the prosecution. It is also contended that from the material available on record, the intention of the appellants in committing the crime has not been established. The star witness Gurucharan Singh (PW 2) and Sheela (PW 3) are merely chance witnesses and their presence at the place of occurrence is not natural. They made material embellishments in their testimony and no reliance can be placed on their evidence. Sheela is the mother of deceased Billu and at the time of occurrence she was residing at the third floor of the house and it is the prosecution case that on hearing hue and cry, she came to the spot. Under these circumstances, she could not have been in a position to see the actual occurrence. The theory of oral dying declaration introduced by the prosecution has no leg to stand. Gurucharan Singh and Sheela are not truthful witnesses and their testimony should be outrightly rejected. It is alternatively submitted that even if the injury on the person of Billu is attributed to appellant-Ajay Singh then also the case does not travel beyond Section 304 Part-II of the IPC. Learned counsel placed reliance on K. Ramakrishnan Unnithan vs. State of Kerala (1). In regard to allegations against the appellant Sanjay Singh, learned counsel cited Ramshish Yadav vs. State of Bihar (2) and Ajay Sharma vs. State of Rajasthan (3). (6). Per contra, Mr. Learned counsel placed reliance on K. Ramakrishnan Unnithan vs. State of Kerala (1). In regard to allegations against the appellant Sanjay Singh, learned counsel cited Ramshish Yadav vs. State of Bihar (2) and Ajay Sharma vs. State of Rajasthan (3). (6). Per contra, Mr. R.P. Meena, learned Public Prosecutor supported the impugned judgment and urged that both the appellants have rightly been convicted by the learned trial Judge. The presence of Gurucharan Singh and Sheela at the place of occurrence is quite natural. The case of appellant Ajay Singh is not covered in any of the exception appended to Sec. 300 of IPC and in view of Clause thirdly of Sec. 300 IPC the appellant Ajay Singh is guilty of murder. In regard to appellant Sanjay Singh, learned PP contended that after seeing Ajay with a knife, he caught hold of Billu and thus shared common intention in committing the crime. Under these circumstances, he was rightly convicted with the aid of Sec. 34 IPC. (7). We have given our anxious thought to the rival submissions advanced before us and carefully scanned the material on record. (8). The prosecution examined two star witnesses in support of its case namely Gurucharan Singh (PW2) and Sheela (PW3). Their statements have been supported by the testimony of Sheela Jain (PW12) and Satya Bhan Singh I.O. (PW13). Sharad Saxena (PW11) and Narain Dass (PW8) have also been examined as eye witnesses but they did not support the prosecution case and were declared hostile. (9). A look at the testimony of Smt. Sheela (PW3) demonstrates that she reached at the spot just after the incident was over. She had seen her son Kulwant in a serious condition who narrated the incident to her and this alleged oral narrated the incident to her and this alleged oral narration of the deceased to her was treated as dying declaration by the learned trial Judge. She also deposed that she has seen accused Ajay Singh with blood stained knife in his hand. Gurucharan Singh (PW 2) in his deposition categorically stated that Ajay Singh inflicted Knife blow on the abdomen of Kulwant Singh. The statement of Gurucharan Singh finds support from the testimony of Dr. Sheetal Jain, who conducted the autopsy and exhibited post mortem report as Ex.P16. The knife was recovered at the instance of Ajay Singh, which was found smeared with blood of `O Group. The statement of Gurucharan Singh finds support from the testimony of Dr. Sheetal Jain, who conducted the autopsy and exhibited post mortem report as Ex.P16. The knife was recovered at the instance of Ajay Singh, which was found smeared with blood of `O Group. Underwear of the deceased was smeared with blood of `O Group, which is evident from the FSL Report (Ex.P19). It has also been established from the evidence that appellant Sanjay Singh caught hold of the deceased. (10). On analysing and evaluating the ocular testimony and documentary evidence placed on the record, we are satisfied that appellant Ajay Singh inflicted single knife blow on the abdomen of the deceased on account of which he died. It is also established that appellant Sanjay bad quarrelled with the deceased and caught hold of him. (11). The question that needs our answer at this juncture is as to what offences have been committed by the appellants in the facts and circumstances of this case. (12). Their lordships of the Supreme Court in K. Ramakrishnan Unnithans case (supra) indicated that where the accused- appellant has been stated the deceased, it is difficult to hold that he gave the blow either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be the inevitable result. In such situation, even on accepting the prosecution case, it can safely be held that the accused did not commit the crime u/Sec. 302 IPC but u/Sec. 304 - Part II IPC. In Ramakrishnan Unnithans case, the deceased was stabbed on his abdomen with a knife by the accused on account of which the injured died. The eye witness, account was that when deceased came out, opening the door and asked as to why his son was being being beaten up, the accused stabbed the deceased on his abdomen with the knife. (13). In the case before us as already stated that the deceased came to the shop of the appellants and started quarreling with appellant Ajay Singh. There was a scuffle between the appellant Sanjay and the deceased. When the appellant Sanjay and the deceased were scuffling, appellant Ajay Singh went to his house and came with a knife and while Sanjay caught hold of the deceased, Ajay inflicted single knife blow on the abdomen of the deceased. (14). There was a scuffle between the appellant Sanjay and the deceased. When the appellant Sanjay and the deceased were scuffling, appellant Ajay Singh went to his house and came with a knife and while Sanjay caught hold of the deceased, Ajay inflicted single knife blow on the abdomen of the deceased. (14). Their Lordships of the Supreme Court had occasion to decide a case of single knife injury, Mahesh Balmiki @ Munna vs. State of M.P. (4), while dealing with the intention or knowledge of the offender and the offence committed in the case of single injury their Lordships observed thus: ``In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In that event, he can safely be attributed the knowledge that the knife blow given by him was not imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. (15). A close look at the aforequoted judgment demonstrates that in the case before the Apex Court, the accused and three others snatched the wrist watch of a boy known to deceased and at the request of boy, the deceased and one Hari Kishan asked the accused to return the watch. The accused asked deceased and Harikishan to come to some specified place. On reaching there, they had exchanged hot words and thereafter the associates of the accused caught hold of deceased and the accused gave knife blow on the chest of deceased and also inflicted injuries to Harikishan who rushed to save the deceased. The facts of Mahesh Balmikis case are distinguishable and, therefore, in our respectful view, the aforesaid case is of no help to the prosecution as the facts of the case in hand are totally distinguishable with that of the facts in Mahesh Balmikis case. (16). The facts of Mahesh Balmikis case are distinguishable and, therefore, in our respectful view, the aforesaid case is of no help to the prosecution as the facts of the case in hand are totally distinguishable with that of the facts in Mahesh Balmikis case. (16). In our considered opinion, the case of appellant Ajay Singh is covered under Exception-IV of Sec. 300 IPC, which provides as under:- ``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 offenders having taken undue advantage or acted in a cruel or unusual manner. (17). As already stated by us by referring K.Ramakrishnan Unnithans case (supra) that it is difficult for us to hold that the knife blow cause by appellant-Ajay Singh was either with intention of causing murder of the deceased or he can said to have the knowledge that the death would otherwise be the inevitable result. He inflicted only one blow and did not repeat it. It was the deceased who initiated the occurrence which resulted into scuffle and the single injury was inflicted in a sudden quarrel without premeditation. Under this circumstance, we are inclined to hold that appellant Ajay Singh is guilty of having committing the crime u/Sec. 304 Part-II IPC. (18). So far as accused-appellant Sanjay Singh is concerned, we are of the view that he cannot be said to have shared the common intention with appellant to kill the deceased. it appears from the record that appellant Ajay Singh went to his house and at that point of time Sanjay and deceased had grabbed each other and they were scuffling and exchanging hot words. According to the statement of Gurucharan Singh (PW2), when Sanjay Singh had seen Ajay Singh coming out with a knife in his hand, he caught hold of deceased and thereafter Ajay Singh inflicted knife blow on his abdomen. (19). In a somewhat similar situation, their Lordships of Supreme Court in Ajay Sharmas case (supra) observed that when the only overt act attributed to co-accused was that he caught hold of the deceased and exhorted main accused by saying ``maro, it cannot be said that co-accused has shared a common intention to kill the deceased. (19). In a somewhat similar situation, their Lordships of Supreme Court in Ajay Sharmas case (supra) observed that when the only overt act attributed to co-accused was that he caught hold of the deceased and exhorted main accused by saying ``maro, it cannot be said that co-accused has shared a common intention to kill the deceased. The instigation was only to strike and therefore, the conviction of co-accused was not sustainable u/Sec. 302 read with Sec.34 IPC and the co-accused was found guilty only u/Sec. 324/110 IPC. (20). In Ramashish Yadav vs. State of Bihar (supra), their Lordship of the Supreme Court indicated thus:- ``It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be a pre-arrangement or premeditated concert. This being the requirement of law for applicability of Sec. 34 IPC, from the mere fact that accused-Ram Parvesh Yadav and Ramanand Yadav came and caught hold of Tapeshwar, whereafter Samundar Yadav and Sheo Layak came with Gandasa in their hands and gave blows by means of gandasa, it cannot be said that the accused Ram parvesh Yadav and Ramanand Yadav shared the common intention with accused Samandar Yadav and Sheo Layak Yadav. (21). In the facts of the instant case where Sanjay and the deceased had grabbed each other and they were scuffling even before the injury was inflicted, they only inference that can be drawn is that, the instigation was only to strike and Sanjay had shared common intention only to the extent of inflicting sharp edged injury. (22). We, therefore, inclined to hold that appellant Sanjay Singh has committed offence u/Sec. 324 read with Sec. 34 IPC. (23). Now coming to the point of sentence, it may be noticed that the appellant Ajay Singh has already been languished in jail for a period of seven years and one months, whereas appellant Sanjay Singh remained in custody for a period of one year. The ends of justice, in our view, would be met in awarding the sentence to the appellants to the period already undergone by them. (24). The ends of justice, in our view, would be met in awarding the sentence to the appellants to the period already undergone by them. (24). In view of what we have discussed hereinabove, we partly allow the appeal. While modifying the impugned judgment, we convert the conviction of appellant Ajay Singh from Sec. 302 IPC to 304 Part II IPC. Similarly we convert the conviction of appellant Sanjay Singh from Sec. 302/34 IPC to 324/34 IPC and we sentence both the appellants to the period already under gone by them. Appellant-Ajay Singh is in jail. He shall be released forthwith, if not required in any other case. Appellant Sanjay Singh is on bail, he should not surrender and his bail bonds stand discharged.