Honble SHARMA, J.–The appellant was indicted in Sessions Case No. 62/1995 before the learned Sessions Judge Alwar for having committed murder of Dilawar Singh. He was found guilty, convicted and sentenced under Section 302 IPC vide judgment dated November 1, 1996 to undergo imprisonment for life with fine of Rs. 500/-, in default to further undergo rigorous imprisonment for six months. The said judgment of conviction has been assailed by the appellant in the instant appeal. (2). The prosecution case can be compendiously stated thus - On June 11, 1995 at 10 p.m. a written report (Ex.P.1) was lodged by the informant Preetam Singh e/o Dilawar Singh with the averments that earlier at 8 a.m. on that date there was a quarrel between Dilawar Singh and appellant Wariayam Singh over partition of the ancestral house. Wariayam Singh was hoard shouting that in case no final decision regarding partition was made, he would kill Dilawar Singh. After holding out this threat the appellant Wariayam Singh had gone away. The informant or other members of his family did not believe that the appellant was really serious about the threat given out by him. On the same day around 7 p.m.. when Dilawar Singh was proceeding towards Railway Station and was in the process of passing in front of the T.B. Hospital, the appellant inflicted repeated knife blows as a result of which Dilawar Singh died at the spot. On the basis of the said written report the Police Station Aravali Vihar Alwar registered FIR No. (Ex. P.2).for offence under Section 302 IPC and investigation commenced. Ex. P.3 Is the sits inspection memo. Ex. P.5 is the inquest report. Ex. P.11 is the post-mortem report of the deceased, according to which, the cause of death was Injury to vital organ (heart). Statements of witnesses wore recorded and the appellant was arrested. On the basis of the information (Ex. P.17) a knife was recovered at the Instance of the appellant. On conclusion of investigation charge shoot was filed. In due course the case came up for trial before the learned Sessions Judge Alwar. Charge under Section 302 IPC was framed. The appellant denied the charge and claimed trial. The prosecution examined as many as 16 witnesses in support of its case. Thereafter in his explanation under Section 313 Cr.P.C. the appellant denied the allegations appearing in the prosecution evidence. Charge under Section 302 IPC was framed. The appellant denied the charge and claimed trial. The prosecution examined as many as 16 witnesses in support of its case. Thereafter in his explanation under Section 313 Cr.P.C. the appellant denied the allegations appearing in the prosecution evidence. He stated that the deceased had received Injuries In a road accident. Three witnesses were examined in defence. After hearing final submissions the learned trial court convicted and sentenced the appellant as indicated hereinabove. (3). Mr. S.R. Bajwa, learned Senior Advocate canvassed that the learned trial judge has gravely erred in convicting and sentencing the appellant. On its own showing the prosecution admits that the impugned assault had taken place on a National Highway and at the relevant time the area was pulsating with human traffic, but not even a single independent eye witness was produced. Only interested and chance witness Mansha Singh was examined by the prosecution who had made material improvements upon his earlier version. The substantial part of its story which was disclosed in the FIR has been changed by the prosecution at the stage of trial. By applying the test of human probabilities, there appears strong possibility that no one had witnessed the actual circumstances and manner in which deceased had received the injuries. The contemporaneous behaviour of the alleged eye witness strongly betrays that he was not present when the deceased received the Impugned injuries. There are material contradictions between the statements of Pritam Singh (PW.2) and Smt. Prakash (PW.10). The two statements can not be reconciled. So far as the statement of Mansha Singh (PW.1) is concerned, he holds strong animus against the appellant much before the present occurrence. The site plan renders no corroboration to the ocular testimony. In the alternative it was urged that even if it is held that the appellant was assailant then also the case does not travel beyond 304 Part I IPC. The incident took place all of sudden and without premeditation. The deceased must have said something to the appellant which has not come on record as independent witnesses wore not examined. Reliance was placed on Krishna Tiwari vs. State of Bihar (1). (4). Per contra Mr. The incident took place all of sudden and without premeditation. The deceased must have said something to the appellant which has not come on record as independent witnesses wore not examined. Reliance was placed on Krishna Tiwari vs. State of Bihar (1). (4). Per contra Mr. Rajendra Yadav learned P.P. supported the impugned judgment of trial Judge and contended that in the morning the appellant had given threat to kill Dilawar Singh .and In the evening at 7 p.m. he had gone to the spot with full preparation having knife in his pocket and on seeing Dilawar Singh, he went down from the tempo and inflicted knife blow on the left side of the chest of Dilawar Singh and repeated the blow. Mansha Singhs presence at the place of occurrence in quits natural and his testimony is corroborated by the extra-judicial confession of the appellant. The incident did not take place all of sudden. The appellant committed murder of Dilawar Singh with premeditation and he has rightly been convicted by the learned trial judge. (5). We have given our anxious consideration to the rival submissions and carefully perused the record. (6). The case of the prosecution is mainly based on the eye witness account of witness Mansha Singh (PW.1). This evidence Is sought to be corroborated by Prakash Kaur (PW.10) and Banno Kaur (PW.11) before whom the appellant had allegedly confessed that he killed Dilwar Singh. Then comes the testimony of Medical Jurist Dr. Raj Kumar Mishra (PW.8) and investigating officer Om Prakash (PW.16). (7). Mansha Singh PW.1 in his deposition stated that around 7.15 he was going towards Alwar Railway Station on a cycle, one tempo crossed him and slowed down. Wariayam Singh @ Pilla got down from the tempo. Dilawar Singh was coming on a cycle behind him. Wariayam Singh pushed Dilawar down from the cycle and inflicted knife blows on the left side of his chest and stomach. When he attempted to inflict third blow, Mansha Singh caught hold of hie hand and he threatened Mansha Singh for dire consequences. Thereafter Wariayam Singh went towards the village. Mansha Singh immediately proceeded towards the house of Dilawar Singh and told his wife that Pilla inflicted two knife blows on the person of Dilawar. In the meanwhile Pilla also reached there and asked the wife of Dilawar that he made her widow. (8). Thereafter Wariayam Singh went towards the village. Mansha Singh immediately proceeded towards the house of Dilawar Singh and told his wife that Pilla inflicted two knife blows on the person of Dilawar. In the meanwhile Pilla also reached there and asked the wife of Dilawar that he made her widow. (8). Preetam Singh PW.2 deposed that around 7.15 p.m. on being informed by Mansha Singh her mother told him that Wariayam Singh killed his father. Mansha Singh also intimated him that Wariayam murdered his father by inflicting two knife blows. Thereafter he along with Mansha Singh and Babu Singh went to the place of occurrence where he found the body of his father. They took the body to the Hospital where his father was declared dead. He Instituted written report Ex.P.1. In his cross-examination he deposed that Dilwar Singh and father of Wariayam Singh wore real brothers and in the morning of the day of occurrence, Wariayam threatened his father Dilawar to commit his murder. (9). Parmanand PW.3 stated that on the day of the occurrence Wariayam Singh came to him and told him that he committed the murder of his friend infront of the T.B. Hospital. Jumma Singh PW.4 is the motbir of seizure memo of blood smeared soil. Ranjit Singh PW.5 put his signatures on the written report Ex.P.1. Dr. Raj Kumar Mishra P.W.6 conducted the post mortem of the deadbody of Dilawar Singh and stated that Dilawar Singh sustained two antemortem injuries as under: 1) Incised wound on loft side Nipple 1-1/4" x 1/4". 2) Incised wound on left upper side of abdomen 1-1/4" x 1/4" x muscle deep elliptical in shape. In his opinion cause of death was due to injury to vital organ (heart). Jagdish Prasad PW.7 was the constable in the Police Station Aravali Vihar and h e carried five sealed packets to FSL. (10). Babu Lal PW.8, who was the Malkhana incharge stated that he handed over the sealed packets to Jagdish for taking them to FSL. Kashmir Singh PW.9 is the motbir of seizure memo of knife. Prakash Kaur PW.10; is the wife of deceased Dilawar Singh. She stated that around 7.30 p.m. Mansha Singh came to his house and told him that Wariayam Singh Inflicted knife blows on the person of Dilawar Singh. Kashmir Singh PW.9 is the motbir of seizure memo of knife. Prakash Kaur PW.10; is the wife of deceased Dilawar Singh. She stated that around 7.30 p.m. Mansha Singh came to his house and told him that Wariayam Singh Inflicted knife blows on the person of Dilawar Singh. After one and half minute Wariayam Singh also came over there and told her that he had killed his uncle and she became widow. (11). Banno Kaur PW.11 deposed that around 7.30 p.m. when she came out to her house Wariayam Singh told his Aunt Prakash that she became widow and the dead body of her husband was lying infront of TB Hospital. Sher Singh PW.12 who was the constable in Police Station Arawali Vihar, carried sealed packets to the Police Station. Mahendra Singh PW.13 is the signatory of the seizure memo of knife recovered at the instance of the appellant. Kalu Singh PW.14 deposed that on his pursuation Wariayam Singh and Dilawar Singh entered into compromise. This witness was declared hostile. Balbir Singh PW.15 stated that in the morning at 8 a.m. Wariayam Singh threatened Dilawar Singh to kill. (12). Om Prakash (PW.16) conducted the investigation of the case. In his deposition he. stated that at the time of arrest the appellants clothes wore smeared with blood. The clothes wore seized vide mew Ex.P.9. After his arrest the appellant gave the information in regard to weapon of offence. The information was drawn In memo Ex. P.17 on which the appellant put his thumb impression. At the instance of -the appellant a knife was recovered vide memo Ex. P.14. Site plan of the place of recovery was also drawn as Ex. P.15. (13). The defence of the appellant in his statement u/Sec.313 Cr.P.C. was that Dilawar died on account of injuries sustained by him in an accident with Tempo. On hearing about the accident when he alongwith his mother and brother reached at the spot they found the deadbody of Dilawar. Wazir Singh (DW.1) is the real brother of the appellant. He stated that on hearing the news about the accident of Dilawar, he alongwith his family members rushed to the spot where they found Dilawar lying over the cycle. They took him to Hospital where he was declared dead. At that time he had seen Mansha Singh sitting on a Thela of eggs (small eggs shop on wheels). He stated that on hearing the news about the accident of Dilawar, he alongwith his family members rushed to the spot where they found Dilawar lying over the cycle. They took him to Hospital where he was declared dead. At that time he had seen Mansha Singh sitting on a Thela of eggs (small eggs shop on wheels). In his cross exa- mination he admitted that Kalu Singh got the property dispute between Dilawar and appellant settled. Jaswant Singh (DW.2) deposed that he had heard the noise as if somebody collided with tempo. He found Dilawar lying over the cycle. He found Mansha there at the chowk who used to sit on thela of eggs. Munni Kaur (DW.3) is the mother of appellant. She stated that Dilawar used to quarrel over the passage of their joint property. Ultimately Kalu. got the dispute settled and Dilawar had to pay rupees seventy thousand to them. She asked for advance money but Dilawar refused to oblige and got her electricity connection disconnected through his son. on the evening of the said day, she heard about Dilawars accident with tempo. She and her family members had gone to the place of accident and she had seen Mansha Singh sitting on the Thela of eggs. (14). After analysis of the entire ocular and documentary evidence the fact situation that emerges may be summarised thus - (i) Families of the appellant and the deceased were residing jointly in a house. Dilawar used to quarrel over the joint passage of the property. One Kalu Singh got the dispute settled a few days before and as per the settlement Dilawar had to pay rupees seventy thousand to the appellant. In the morning of the day of the Incident when the appellant and her mother demanded money Dilawar declined and got the electricity connection of the appellant disconnected. The appellant then threatened Dilawar to kill. (ii) In the evening around 7 p.m., on seeing Dilawar the appellant got down from the tempo and inflicted repeated knife blows on the left side of chest and abdomen of Dilwar who died at the spot. (iii) The incident had taken place on the high way and at the relevant time the area was pulsating with human traffic. (ii) In the evening around 7 p.m., on seeing Dilawar the appellant got down from the tempo and inflicted repeated knife blows on the left side of chest and abdomen of Dilwar who died at the spot. (iii) The incident had taken place on the high way and at the relevant time the area was pulsating with human traffic. (iv) The prosecution examined only one eye witness Mansha Singh who admitted in hie cross-examination that Panchayat had resolved the dispute between him and the appellant four years back. (v) The appellant had made extra judicial confession before Prakash Kaur, that he killed Dilawar Singh. (vi) Ocular testimony of Mansha Singh was corroborated by Dr. Raj Kumar Mishra who conducted autopsy of the dead-body of the deceased. (vii) As per defence version Dilawar Singh died on account of injuries sustained by him in an accident with tempo. (viii) The knife allegedly used by the appellant was recovered at his instance from his house. (ix) At the time of arrest the appellant was wearing clothes which were stained with blood. (15). Learned Senior Counsel Shri Bajwa, took us to the entire statement of Mansha Singh (PW.1) and urged that his entire testimony is bundle of lies and it should be outrightly rejected. It is contended by the learned counsel that the presence of Mansha Singh at the time of incident is doubtful. There appears strong possibility that no one had witnessed the actual circumstances under which the deceased had received the injuries. As Mansha Singh had strong animus against the appellant he became the witness of the occurrence. The independent witnesses were deliberately withhold by the prosecution and only a chance witness was introduced who made exaggeration and embellishments in his statement. (16). It is well settled that the testimony of a chance witness only requires a close scrutiny, such a witness cannot be considered untruthful because he is a chance witness. Undoubtedly there are exaggeration in the testimony of Mansha Singh but his presence at the time of incident in our opinion, is quite natural. Even the defence witnesses Wazir Singh (DW.1), Jaswant Singh (DW.2) and Munni Kaur (DW.3) deposed in their statements that when they were going to the place of accident they had seen Mansha Singh sitting at the Thela of the eggs. Even the defence witnesses Wazir Singh (DW.1), Jaswant Singh (DW.2) and Munni Kaur (DW.3) deposed in their statements that when they were going to the place of accident they had seen Mansha Singh sitting at the Thela of the eggs. Their Lordships of the Supreme Court in Leela Ram vs. State of Haryana (2) indicated that if the witness makes attempt to offer embellishment or gives slightly exaggerated account of the incident, the court can sift the chaff from the grain and find out the truth from the testimony of the witness. The evidence to be considered from the point of view of trustworthiness. (17). Having considered the testimony of Mansha Singh (PW.1) from the point of view of trustworthiness, we find that it inspires confidence. Mansha Singh had gone to the Police Station Aravali Vihar with the informant Preetam Singh and put his thumb impression on the written report (Ex. P.1). On a close scrutiny of the entire statement of Mansha Singh we find that nothing could be elicited form his cross examination that could help the appellant. The statement of Mansha Singh was corroborated by Parmanand (PW.3), Prakash Kaur, (PW.10) and Banno Kaur (PW.11) before whom the appellant made extra-judicial confession that he killed Dilawar. The recovery of weapon of offence (knife) at the instance of the appellant has been established by the investigating officer Om Prakash (PW.16) and Motbirs Kashmir Singh (PW.9) and Mahendra Singh (PW.13). Preetam Singh (PW.2) and Balbir Singh (PW.15) have established motive of murder by deposing that the appellant had threatened Dilawar Singh to kill in the morning of the date of incident. Munni Kaur (DW.3) the mother of appellant also admitted that she demanded money from Dilawar in the morning and in return he got her electricity connection disconnected. OM Prakash (PW.16) established that blood stained clothes which the appellant was wearing at the time of arrest were seized. Dr. Raj Kumar Mishra established that Dilawar had died on account of injury to the vital organ (heart). A look at his entire testimony reveals that the injuries sustained by the deceased were antemortem in nature and could be caused by knife. In the cross examination no question was asked from this witness as to whether the injuries could be caused by accident. A look at his entire testimony reveals that the injuries sustained by the deceased were antemortem in nature and could be caused by knife. In the cross examination no question was asked from this witness as to whether the injuries could be caused by accident. The defence introduced by the appellant that the deceased sustained injuries by accident with tempo, appears to us as after thought. The prosecution in our considered opinion has established this fact beyond reasonable doubt that the appellant inflicted two knife blows on the left side of chest and abdomen of Dilawar and on account of injury on the `heart he died. (18). That takes us to the alternative submission of Mr. Bajwa learned counsel that the incident had taken place all of sudden and without premeditation therefore the case does not travel beyond 304 Part-I IPC. (19). Section 304 IPC itself creates no offence. It prescribes the sentence for the offence of culpable homicide not amounting to murder, the sentence varying according to the offenders intention or knowledge. In point of gravity culpable homicide ranks next only to murder but the punishment prescribed varies within a wide range from imprisonment for life to a mere fine. A look at Section 304 will show that in Part I there is intention while in Part II there is only knowledge and intention is expressly excluded. For the purpose of fixing punishment in proportion to the gravity, three degrees of culpable homicide have been recognised. Culpable homicide of first degree has been defined in Section 300 as `murder. Culpable homicide of second degree is punishable under the I part of Section 304 and culpable homicide of third degree Is punishable under the II part of Section 304. Unless the act falls under any of the four clauses to Section 300 and it is covered by any of the exception thereunder, it is culpable homicide and is punishable under Section 304. The first clause of Section 300 IPC says that culpable homicide is murder if the act of which death is caused is done with the intention of causing death. The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm Is caused. The third clause views the matter from a general stand point. The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm Is caused. The third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The clause `fourthly comprehends generally the commission of imminently dangerous acts which must in all probability cause death or cause such bodily injury as is likely to cause death. When such an act is committed with the knowledge that death might probable result and without excuse for incurring the risk of causing death or injury as is likely to cause death, the offence is murder. After laying down the ingredients aggravating culpable homicide to murder, Section 300 next turns to contain exceptional cases in which the offence is mitigated by certain circumstances arising out of - (i) Provocation (ii) Private defence (iii) Exercise of legal powers (iv) Absence of premeditation (v) Consent Exception 1 to Section 300 IPC applies only if death is caused during the time the offender is deprived of the power of self- control as a result of grave and sudden provocation. Exception 2 to Sec.300 IPC deals with the case where a person exceeds the right of private defence. If the excess is intentional, the offence is murder, if unintentional it is culpable homicide not amounting to murder. Exception 3 to Sec.300 IPC says that culpable homicide is not murder where the public servant acting for the advancement of public justice exceeds the powers given to him by law and causes death by doing an act which he, in good faith believes to be lawful and necessary for the due discharge of his duty and without ill-will towards the person whose death is caused. Exception 4 to Section 300 IPC covers acts done in a sudden fight. This exception deals with a case of provocation not covered by the first exception. Exception 4 to Section 300 IPC covers acts done in a sudden fight. This exception deals with a case of provocation not covered by the first exception. In order that the accused may be entitled to the benefit of Exception 4, the requirement is that the sudden fight must be without premeditation and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Exception 5 to Section 300 IPC deals with the cases where death is caused by consent. The consent contemplated by the exception must be unconditional without any reservation and must be unequivocal, that is, there must be no choice of alternatives to which the person taking the life more or less has driven the person. (20). The contention of Mr. Bajwa learned Senior Counsel in bringing down the case to Sec.304 Part-I IPC is that the occurrence had taken place all of sudden and without premeditation. The deceased must have said something to the appellant which provoked him and in a heat of passion the appellant inflicted knife blows. In Krishna Tiwari vs. State of Bihar (supra) an which learned counsel placed reliance, the prosecution case was that on March 5, 1991. at about 7 p.m., Dadan Tiwari parked his jeep near the door and went into the court yard leaving the Cleaner Manoj Kumar of the jeep standing at the main entrance of the door of the house. As there was obstruction in going and coming in the house Paramhans Tiwari (real uncle of Dadan Tiwari) who was jointly sharing the house with his brother Krishna Tiwari (father of Dadan Tiwari) told the cleaner to go away from the door when the cleaner did not do so, Paramhans Tiwari removed him from the door by catching his arms. The cleaner became angry and went Inside the house and informed about the incident to Dadan Tiwari and Krishna Tiwari. Both Krishna Tiwari and Dadan Tiwari became angry and came down from the first floor. Krishna Tiwari caught the collar of the shirt of Paramhans and shouted `Maro Sale Ko. Upon this Dadan Tiwari who had come with a knife gave two knife blows to Paramhans, one fell on the chest and the other landed on upper part of the eye brow. Paramhans was taken to the hospital but he died on the way. Krishna Tiwari caught the collar of the shirt of Paramhans and shouted `Maro Sale Ko. Upon this Dadan Tiwari who had come with a knife gave two knife blows to Paramhans, one fell on the chest and the other landed on upper part of the eye brow. Paramhans was taken to the hospital but he died on the way. Their Lordships of the Supreme Court convicted Dadan Tiwari under Section 304 Part I, IPC by making the following observations - (i) The prosecution did not examine the cleaner Manoj Kumar who was the cause of quarrel. (ii) The relationship between the brothers Krishna Tiwari and Paramhans Tiwari and the family members was cordial prior to the incident. The incident took place all of a sudden and without any premeditation. Manoj Kumar was standing in the middle of the door and the ladies of the house were having obstruction in coming and going out from the house, therefore he was scolded by the deceased Paramhans and removed from the place by use of force. It appeared to their Lordships that Manoj conveyed something to Dadan Tiwari and Krishna Tiwari, which had not come on record because Manoj was not examined. Krishna and Dadan came down and quarrel took p,lace between Paramhans and Krishna. In such a sudden quarrel and in the heat of passion Dadan Tiwari inflicted a fatal blow to the deceased without acting in any cruel or unusual manner or without taking any undue advantage. (21). In the instant case the relationship between the family of the appellant and the deceased was not cordial prior to the incident. In the morning the appellant had given threat to the deceased to kill and in the evening at 7 p.m. on seeing the deceased coming the appellant got down from the tempo and inflicted repeated knife blows to the deceased, one fell on the left side of the chest and other landed on the abdomen. The appellant in our view acted in calculated manner and with premeditation. It was not a sudden quarrel in the heat of passion. The appellant in inflicting blows to the deceased acted in a cruel and unusual manner and he took undue advantage of the situation. In our considered opinion Section 304 IPC is not applicable in the facts of the instant case. It was not a sudden quarrel in the heat of passion. The appellant in inflicting blows to the deceased acted in a cruel and unusual manner and he took undue advantage of the situation. In our considered opinion Section 304 IPC is not applicable in the facts of the instant case. There is nothing on record which could suggest that there was altercation between the appellant and deceased before the incident. As already stated Section 304 Part I IPC applies to the following classes of the cases - (1) When the case falls under one or the other clauses of Section 300 IPC but is covered by the exceptions to that Sections: (2) When the injury caused is not of the higher degree of likelihood which is covered by the expression ``sufficient in the ordinary cause of nature to cause death but is of a lower degree of likelihood generally spoken of as an injury ``likely to cause death and the case does not fall under clause 2 of Section 300 IPC. Section 304 Part II IPC is attracted when the act is done with the knowledge that death is likely to ensue but there is no intention to cause any injury at all, or there may be an intention to cause simple, or grievous hurt but not an injury likely to cause death. In the instant case the killing was a predetermined killing upon consideration and not a sudden killing under the momentary excitement and impulse of passion upon a provocation given at the time of the accident and there fore none of the exceptions are attracted and the case is covered under clause thirdly of Section 300 IPC. Thus the appellant was rightly convicted under Section 302 IPC. (22). We find no merit in the appeal, it is accordingly dismissed.