Judgment N.N. Mathur, J.-This appeal is directed against the Judgment dated 4-12-1996 passed by the Special Judge (Prevention of Atrocities) S.G. /S.T. cases cum Additional Sessions, Pratapgarh, convicting the appellant Mangi Lal of the offence under Section 302, I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo one month’s rigorous imprisonment. 2. Theprosecution case as disclosed during the trial is that Radhey Shyam son of appellant. Mangi Lal, was married to one Mst. Prem and her cousion sister PW 7 Mst. Ganga was married to deceased Shobha Ram. On 22nd 1994, PW 10 Kanwar Lal brother of Smt. Sobha visited the house of appellant to take his sister Mst. Prem. The request of PW 10 Kanwar Lal was turned down by Mangi Lal and Radhey Shyam. PW 10 while returning to his village on the way stayed at the residence of his cousion sister PW 7 Ganga Bai. After taking dinner, while he was relaxing on the platform and talking to deceased Shobha Ram, PW 6 Panna Lal father of Shobha Ram and PW 4 Laxman, at about 10,00 p.m. appellant Mangi Lal along with his son Radhey Shyam arrived and started abusing them. They also questioned as to why their guest Kanwar Lal was provided hospitality at their residence. On this deceased Shobha Ram replied that Kanwar Lal was also his brother-in-law, therefore, he was entitled to extend hospitality. Appellant Mangi Lal took out a dagger and plunged it in the chest of Sobha Ram. Both the accused persons dragged Shobha Ram to 2-3 steps. Then Mangi Lal gave a second blow on the head of deceased Shobha Ram. The out-cry of Sobha Ram attracted PW 15 Gopaji, PW 7 Mst. Ganga etc. Shobha Ram was taken to the hospital in a tractor. On the way he succumbed to the injuries. A report of the incident was lodged by PW 4 Laxman at Police Station Pratapgarh. The police registered a case for the offence under Section 302, 302 read with 34 I.P.C. and proceeded with investigation. After usual investigation, police laid charge sheet against the appellant, Mangi Lal and Radhey Shyam (since acquitted). .3. The appellants denied the charges levelled against them and claimed trial. The police registered a case for the offence under Section 302, 302 read with 34 I.P.C. and proceeded with investigation. After usual investigation, police laid charge sheet against the appellant, Mangi Lal and Radhey Shyam (since acquitted). .3. The appellants denied the charges levelled against them and claimed trial. The prosecution in support of its case, examined 16 witnesses and produced certain documents, Appellant Mangi Lal in his statement under Section 313, Cr.P.C. denied the correctness of the prosecution evidence appering against him. He also stated that Shobha Ram gave a lathi blow on his head on account of which he sustained injuries. He also stated that Laxman Singh came with a dagger to assault him which was inflicted on Shobha Ram. Analysing the evidenc .the trial Court acquitted the accused Radhye Shyam. However, he convicted and sentenced the appellant, Mangi Lal, as noticed above. 4. Assailingthe conviction, it is contended by Mr. B.N. Kalla, learned counsel for the appellant that the conviction of the appellant is not sustainable as it is based on inimical and highly interested witnesses. It is also submitted that recovery of the dagger cannot be believed for twin reasons, firstly, it has been made from open and sundry place, and, secondly, it has not been produced in Court. In the alternate it is submitted that from the facts and circumstances of the case it cannot be inferred that appellant intended to commit murder of Shobha Ram. His act may at the most be clothed with the knowledge that it may cause death and as such his conviction cannot travel beyond offence under Section 304, Part II of the Indian Penal Code. On the other hand learned Public Prosecutor has supported the Judgment of the trial Court. .5. We have scanned, scrutinised and evaluated the prosecution evidence and considered the rival contentions. PW 14 Dr, Mahesh Kumar has stated that he conducted Postmortem of the dead body of Shobha Ram on 23rd June, 1994 and noticed following injuries: .(1) Lacerated wound on RL. parietal region, semi circular towards forechest 6” x 1/2 x bone deep. Flap of 2”. .(2) Abrasion 2 inNo. 1” x 1/4” each on forehead RL. .(3) Incised wound (RL) side of chest 1 1/4” below (RL) Clasia 2 1/4” x 1” x blood and air is coming out. parietal region, semi circular towards forechest 6” x 1/2 x bone deep. Flap of 2”. .(2) Abrasion 2 inNo. 1” x 1/4” each on forehead RL. .(3) Incised wound (RL) side of chest 1 1/4” below (RL) Clasia 2 1/4” x 1” x blood and air is coming out. Oblique - lower end is about 2 1/2” from lining, upper end is about 3 1/2” from midline. INJURIES ON THORAX; Eschymosis on RL side of chest wall, 2nd rib incised about 1 1/2” along the axis. RL sided haemothorax and Preumothorox RL side lung incised wound 1 1/2” x 1/2” x 2 1/2” deep. In his opinion the cause of death was due to haemorrageic shock due to injury to lung. 6. Theprosecution has examined PW 4 Laxman, PW 6 Panna Lal, PW 7 Mst. Ganga, PW 8, Shankar Lal, PW 10 Kanwar Lal as eye witnesses. Prosecution has also examined PW 11 Mani Lal son of Bawari and PW 12 Mangi Lal son of Shankarji, who reached on the spot just after the incident. 7. PW 4 Laxman has stated that on the date of incident at about 10.30p.m. while he was relaxing slipping on the platform appurtenant to the house of the deceased Shobha Ram and talking to deceased Shobha Ram, Smt. Ganga, Panna Lal and Kanwar Lal, appellant Mangi Lal and Radhey Shyam arrived. They questioned Shobha Ram as to why his guest was extended hospitality at his (Shobha Ram) residence. PW 6 Panna Lal the father of Shobha Ram asked them that it was open for them to take away their guest. Deceased Shobha Ram retorted saying that if he (Radhey Shayam) was brother-in-law of the guest then he was also his brother-in-law and as such he did not commit any offence in extending hospitality to him. Then suddently Mangi Lal plunged dagger in the chest of Shobha Ram. Thereafter Mangi Lal and Radhey Shyam dragged Shobha Ram for about 2-3 steps and Mangi Lal gave second dagger blow on the head of Shobha Ram. Their outcry attracted Gopaji, Shankar etc. He has further stated that Shobha Ram was taken to police station in a tractor but he succumbed to the injuries on the way. Thereafter Mangi Lal and Radhey Shyam dragged Shobha Ram for about 2-3 steps and Mangi Lal gave second dagger blow on the head of Shobha Ram. Their outcry attracted Gopaji, Shankar etc. He has further stated that Shobha Ram was taken to police station in a tractor but he succumbed to the injuries on the way. In the cross-examination, he denied the suggestion that when appellant Mangi Lal was passing through in front of his house deceased Shobha Ram questioned Radhey Shyam as to why his wife was not sent to his parent house and this led to a quarrel between them. He also denied suggestion that dagger was in his hand and Panna Lal and Shobha Ram caught hold of Mangi Lal and he ran to assault them. He also denied the suggestion that while grappling, dagger accidently struck Shobha Ram. He, however, admitted that dagger was not in the hands of Radhye Shaym or Mangi Lal when they arrived on the spot. He also denied to have seen the dagger. There is nothing substantial in the cross examination to discredit the testimony of this witness. The testimony of this witness cannot be discarded simply because he admitted to have not seen weapon in the hand of appellant, when he entered on the spot. 8. P.W. 6 Panna Lal is the father of the deceased Shobha Ram. His statement is almost on the line of PW 4 Laxman. He has categorically stated that Mangi Lal plunged dagger in the chest of Shobha Ram. We, fail to understand as to what was the necessity for the Public Prosecutor to make a prayer to cross-examine this witness. On cross-examination he admitted that Shobha Ram gave 2-4 slaps to Mangi Lal. He also admitted that deceased Sobha Ram and appellant Mangi Lal grappted before the incident. It is well established that the statement of a hostile witness can be read if it inspires confidence. In the examination in-chief he has categorically stated that Mangi Lal stabbed dagger in the chest of Shobha Ram. Thus, the statement of this witness has also supported the case of the prosecution to that extent. 9. PW7 Mst. Ganga is the wife of decesaed Shobha Ram. She has stated that on the date of incident, her husband along with Kanwar Lal & Ors. were sitting outside the house. His father-in-law was also there. Thus, the statement of this witness has also supported the case of the prosecution to that extent. 9. PW7 Mst. Ganga is the wife of decesaed Shobha Ram. She has stated that on the date of incident, her husband along with Kanwar Lal & Ors. were sitting outside the house. His father-in-law was also there. At that time Mangi Lal and Radhey Shayam arrived and questioned about the hospitality extended to Kanwarlal. She also stated that Mangi Lal stabbed dagger to Shobha Ram and inflicted injuries. She denied the suggestion that deceased Ram assaulted the appellant, Mangi Lal, She, however, admitted that she arrived at on the spot when the accused persons were escaping. She had seen the accused persons from a distance of 4-5 feet. She further stated that after departure of the accused persons, other villagers arrived. 10-11. P.W. 10 Kanwar Lal is the brother Mst. Prem, wife of accused Radhey Shyam. His other sister Smt. Ganga was married to deceased Shobha Ram of the same village i.e. Sharkhedi. He had gone to collect his sister at Sharkhedi. However, his request was turned down by Mangi Lal. While returning, he stayed at the house of another sister Mst. Ganga. After taking dinner, he along with Panna Lal and Shobha Lal was sitting on the platform of the house. At that time Mangi Lal arrived and questioned him about his stay at Mst. Ganga’s house. Panna Lal replied that if he was his brother-in-law, he was also brother-in-law of his son. He further stated Shobha Ram gave stick blow on the head of Mangi Lal. He also stated that Mangi Lal stabbed knife in the chest. On account of this, Shobha Ram fell down. In the cross-examination nothing has been elicited to discredit the testimony of his witness. 12. The critisim levelled against eyewitnesses PW 4 Laxman, PW 6 Panna Lal, PW 7 Mst. Ganga and P.W. 10 Kanwar Lal is that they are inimical and interested witnesses. It is not in dispute that these witnesses are also related to the appellant, Mangi Lal, Mst. Prem, the wife of accucsed Radhey Shyam and Mst. Ganga wife of Shobha Ram are sisters. The occurrence has taken place at the house of the deceased, therefore, the presence of the eye witnesses is natural. The evidence of these witnesses is consistent with the surrounding circumstances. Prem, the wife of accucsed Radhey Shyam and Mst. Ganga wife of Shobha Ram are sisters. The occurrence has taken place at the house of the deceased, therefore, the presence of the eye witnesses is natural. The evidence of these witnesses is consistent with the surrounding circumstances. Hearing the outcry of deceased P.W. 11 Mangi Lal, son of Prabhu Lal and P.W. 12 Mangi Lal sonof Shankarji, reached on the spot and witnessed appellant Mangi Lal and Radhey Shyam escaping from the spot where Shobha Ram was lying injuried in pool of blood. There was no reason for the appellant and son Radhye Shyam to be at the house of deceased at odd hours, except for the reason as disclosed by the prosecution. The basic features of the deposition of the witnesses is direct and probable. It finds corroboration from the medical evidence and F.I.R. All the eye witnesses are held to be trustworthy. The trial Court rightly held appellant guilty on the testimony of the eye witnesses in this case. 12A. As regards the recovery, it is not in dispute that the dagger has not been produced in the Court and the recovery has been made from open and sundry place. Thus, in our opinion, the trial Court was right in rejecting the testimony of recovery. .13. It is next contended by the learned counsel for the appellant that the prosecution case should be rejected for the reason that injury on the person of appellant Mangi Lal has not been explained. PW 11 Dr. Mahesh Kumar has stated that he had also examined Mangi Lal on the same day and prepared the injury report Ex. D-4 wherein he noticed following injuries: .(1) Lac. wound ; 21’2” x 1/4” x bone deep middle of scalp. .(2) abrasions (2): 1/2” x 1/2” below LL knee. .(3) Bruise : 5” x 2” RL intra scapular region. .(4) Bruise : 6 1/2” x 3/4” across the back middle. .(5) Bruise : 2” x 1” Lat, aspect of RL shoulder. Injury Nos. 2, 3, 4, 5 Simple caused by blunt weapon. Inj. No. 1 - Caused by blunt weapon. Duration of injuries within 24 hrs. 14. Hefound all the Injuries on the person of Mangi Lal simple, caused by blunt object. In view of the occular version of the incident given by PW 4 Laxman, PW 6 Panna lal, P.W. 7 Mst. 2, 3, 4, 5 Simple caused by blunt weapon. Inj. No. 1 - Caused by blunt weapon. Duration of injuries within 24 hrs. 14. Hefound all the Injuries on the person of Mangi Lal simple, caused by blunt object. In view of the occular version of the incident given by PW 4 Laxman, PW 6 Panna lal, P.W. 7 Mst. Ganga and P.W. 10 Kanwar Lal, the non-explanation of the injuries will not effect the prosecution case. Prosecution is not obliged to explain injuries of minor nautre, in all circumstances. 15. It is lastly contended that the appellant has been attributed only single injuy and PW 14 Dr. Mahesh Kumar has admitted in the cross-examination that if immediate treatment would have been provided to deceased Shobha Ram then he could have been saved. It is also submitted that doctor has not stated that injury was sufficient in the ordinary course of nature to cause death. PW 6 Panna Lal has also admitted that deceased Shobha Ram had gaven two slaps to Mangi Lal. P.W. 10 Kanwar Lal has also stated that Shobha Ram gave a stick blow on Mangi Lal. Thus, the submission in the incident took place at the spur of moment on a trivial issue and appellant caused a single injury, leads to the inference that the appellant did not intend to commit murder of Shobha Ram, he may at the most be clothed with knowledge that his act may cause death. Thus, the offence against the appellant may be under Section 304, Part II, I.P.C. and, not under Section 302, I.P.C. We find substance in the contentions. The incident appears to have taken place on the spur of moment. The doctor has not stated that the single injury caused was sufficient in ordinary course of nature to cause death. The appellant can be clothed with the knowledge that in all probability his act could cause death. The appellant has not taken undue advantage or acted in a. cruel or unusual manner. Thus, the conviction of the appellant under Section 302, I.P.C., deserves to be altered to Section 304 (2), I.P.C. 16. Consequently, this appeal is partly allowed. The conviction and sentence of the appellant under Section 302, I.P.C. is set aside. The appellant has not taken undue advantage or acted in a. cruel or unusual manner. Thus, the conviction of the appellant under Section 302, I.P.C., deserves to be altered to Section 304 (2), I.P.C. 16. Consequently, this appeal is partly allowed. The conviction and sentence of the appellant under Section 302, I.P.C. is set aside. The appellant Mangi Lal, is convicted for the offence under Section 304 II, I.P.C. It is stated that he is in jail since his arrest i.e. June 1994. The ends of justice would be met if the sentence is awarded to appellant to the period already undergone. The appellant is in jail. He shall be released forthwith, if he is not required in any other case.