JUDGMENT 1. - This appeal has been filed against the judgment of conviction and order of sentence dated 23.2.1998, passed by learned Special Judge, SC/ST (Prevention of Atrocities) Cases & Addl. Sessions Judge, Bikaner, in Sessions Case No. 60/96, convicting the accused-appellant for offence under section 302, IPC and sentencing him to imprisonment for life as also to pay a fine of Rs. 1000/-, in default of payment whereof to further undergo 2 months simple imprisonment. The accused-appellant was also convicted for offence under section 323, IPC and sentenced to one month's simple imprisonment. 2. The prosecution version in short is that on 20.6.1996 at 9:45 p.m. in Gangashehar, in front of house of the accused-appellant-Motilal aged about 32 yrs. was stabbed by the accused-appellant. Injured Motilal was immediately taken to hospital where he was declared dead. 3. An FIR Ex. P1 was lodged by PW 1 Ganesh Mal Bothra immediately thereafter at 10.45 p.m., giving detailed version of the occurrence. Autopsy was done on the dead body by PW 7 Dr. Mahesh Khargawat. The accused-Dev Chand was arrested on 31.7.1996 vide arrest memo Ex.P17. He gave a discloser statement Ex.P18 under section 27 of the Evidence Act, at 2.30 p.m. on 1.8.1996 and made a knife recovered on 2.8.1996 vide Ex.P1 from his residential house, which was sealed then and there. 4. After usual investigation, accused-appellant was booked for offence under section 302, IPC. Prosecution examined 10 witnesses and exhibited 20 documents in support of its case. In his statements under section 313, Cr.P.C., accused denied the prosecution version and alleged false implication. Two witnesses, namely, Mst. Bhanwari Devi and Mumtaj, were also examined in defence. Thereafter, upon consideration, learned trial Court has convicted and sentenced the accused-appellant as stated above. 5. Mr. Garg, learned counsel for the appellant submitted that according to prosecution version, deceased Motilal along with some other persons entered into house of the accused-Dev Chand and quarrelled with him. He was asked to leave the house but when he did not pay heed, was pushed out of the house and in the scuffle injuries were caused to him and that accused-appellant had every right to cause injury in his private defence. He was asked to leave the house but when he did not pay heed, was pushed out of the house and in the scuffle injuries were caused to him and that accused-appellant had every right to cause injury in his private defence. In the alternative, it was contended that only three sharp-edged injuries were sustained by the deceased and out of them, only injury No. 2 proved fatal and therefore, the offence does not travel beyond section 304 part II, IPC. In support of his contention, learned counsel relied upon Sarfullah v. State of Rajasthan, 1988 CrLR (Raj.) 35 and the Apex Court pronouncement in K. Ramakrishna Unnithan v. State of Kerala, 1999 Cr.L.J. 2101 . Learned Public Prosecutor, on the contrary, has supported the impugned conviction and sentence. 6. We have considered the rival contentions and have not only perused the impugned judgment but also the evidence available on the file. 7. So far as homicidal death of deceased Moti Lal is concenied, PW 7 Dr. Mahesh Khargawat, who conducted the post-mortem on the dead body, has deposed that on 21.6.1996 he conducted post-mortem of dead body of Moti Lal and found following ante-mortem injuries:INJURIES: (1) Incised wound 2.5cm x 1cm x 2cm deep 5cm below and lateral to left stemo-clarricular jastaceri-IInd intrcastal space & on IIIrd rib obliquely placed. (2) Incised wound 2.6cm x 0.8cm x 2cm deep - 11cm above & lateral to the anterior supenier flat spine in posterior auxiliary line. (3) Incised wound 3cm x 1.2cm x 2cm deep - 2cm below the injury No. 2 - from injury No.2 greater omentum come out from wound. 8. Though it has not been specifically mentioned in the post-mortem report Ex.P13 that injuries found on the dead body of Moti Lal were sufficient to cause death but same has been stated by PW 7 in his Court statement, that injury No. 2 in itself was sufficient in the ordinary course of nature to cause death. This witness has been cross examined at length yet nothing substantially affecting his testimony could be elicited. 9. In addition to above medical evidence, testimony of PW 1 Ganesh Mal Bothra - brother of the deceased, PW 2 - Mangi Lal - brother of the accused and PW 4 Mst. This witness has been cross examined at length yet nothing substantially affecting his testimony could be elicited. 9. In addition to above medical evidence, testimony of PW 1 Ganesh Mal Bothra - brother of the deceased, PW 2 - Mangi Lal - brother of the accused and PW 4 Mst. Chotha Devi, sister of the deceased, has also proved that Moti Lal has been done to death on 20.6.1996, at 9.45 p.m. by accused-appellant-Dev Chand due to stabbing of knife into deceased. Relying upon these evidence, learned trial Court has rightly found homicidal death of deceased Moti Lal to be proved. 10. So far as involvement of the accused-appellant in the crime is concerned, Ex.P1 is detailed FIR, lodged immediately after the occurrence by PW 1 Ganesh Mal Bothra. No embellishment or exaggeration was pointed out in it before the trial Court nor suggested to PW 1 Ganesh Mal in his cross-examination. Even before us learned counsel for the appellant could not indicate any embellishment or exaggeration in it. 11. PW 1 Ganesh Mal Bothra has deposed that accused-Dev Chand is younger brother of PW 2 Mangi Lal, to whom his sister PW 4 Mst. Chotha Devi was married. Though PW 2 Mangi Lal and accused were residing separately but their houses were adjoining and accused-Dev Chand used to give threats to Mst. Chotha Devi and also used to quarrel with her. On 18.6.1996 also, accused-Dev Chand quarrelled with his brother Mangi Lal and `bhabhi' Chotha Devi. On the date of occurrence, at about 9.00 p.m. Chotha Devi (PW 4) informed Ganesh Mal on telephone that Dev Chand is roaming in his Court-yard, armed with a knife and is threatening and abusing her, upon which PW 1 Ganesh Mal, along with Moti Lal and one Kamal Chand, went to house of Mst. Chotha Devi. When apprised by her that Dev Chand is giving threats they went to house of the accused where one Bhanwar Lal, brother-in-law of the accused and some other person were also present. There was some quarrel in the house of accused-appellant between both the parties and Moti etc. were pushed out of the house. Thereafter, accused-appellant-Dev Chand gave knife blow on the person of Moti Lal, upon which he fell down. Two more kriife blows were then inflicted by Dev Chand upon Moti Lal. 12. There was some quarrel in the house of accused-appellant between both the parties and Moti etc. were pushed out of the house. Thereafter, accused-appellant-Dev Chand gave knife blow on the person of Moti Lal, upon which he fell down. Two more kriife blows were then inflicted by Dev Chand upon Moti Lal. 12. Not only PW 1 Ganesh Mal has stated this fact but PW 4 Mst. Chotha Devi also states similarly. Both these witnesses have been cross-examined at length but they could not be contradicted either by their Police Statement given under section 161, Cr.P.C. or by the FIR Ex.P1 and have withstood the test of cross examination. Learned counsel for the appellant also could not indicate any discrepancy, much less infirmity, in their statements. Learned trial Court has, thus, rightly believed testimony of these witnesses as they are of Sterling worth according to us also. 13. PW 2 Mangi Lal is real brother of accused-appellant-Dev Chand. He also supported the prosecution version to the extent that accused-Dev Chand used to quarrel with them over triffle matters. On 20.6.1996 also, Dev Chand quarreled with this witness and gave a beating to him. Subsequently, it was informed at the shop by his son Hemant that at 9.45 p.m. his maternal uncle Moti Lal has been given knife blows by Dev Chand. Upon receipt of this information, this witness came to the site where he saw Moti Lal lying unconscious with his head in lap of Chotha Devi. This witness has also been cross examined but nothing infringing his testimony could he elicited. He too is not contradicted by his previous statement given under section 161, Cr.P.C. 14. In addition to above occular tesitmony, knife - the weapon of offence, has also been recovered at the instance of accused-appellant on the basis of his voluntary discloser statement Ex. P18 which was recorded on 1.8.1996. On 2.8.1996 in the presence of Anand Kumar (PW 5) and Panmal (PW 8) in the custody of Police, accused-appellant made recovered the knife from his residential house vide Ex.P11, which was seized and sealed then and there. This recovery has been proved by testimony of PW 5 and PW 8. P18 which was recorded on 1.8.1996. On 2.8.1996 in the presence of Anand Kumar (PW 5) and Panmal (PW 8) in the custody of Police, accused-appellant made recovered the knife from his residential house vide Ex.P11, which was seized and sealed then and there. This recovery has been proved by testimony of PW 5 and PW 8. Both these witnesses have deposed that accused-Dev Chand was in Police custody and he took them to his residential house, where from in side a room, he made a knife recovered concealed in a bedding, which was seized and sealed then and there. Seizure memo Ex.P12 bears their signature at places AB and CD. Both these witnesses have not been cross examined at length and have into stood test of cross-examination. 15. PW 10 Suresh Kumar, SHO and Investigating Officer has also deposed that accused-Dev Chand was arrested on 31.7.1996 vide memo Ex.P17. He gave a voluntary discloser statement at 2.30 p.m. on 1.8.1996 vide Ex. P18 and wanted to make recover knife from his residential room. The accused-appellant was, therefore, took them to his residential house along with attesting witnesses Pan Mal and Anand Kumar and made the knife recovered from beneath his bedding. That knife was seized and sealed vide Ex. P18. This witness has also not been cross-examined with reference to above recovery. 16. Mr. Garg, learned counsel for the appellant, urged before us that PW 7 Dr. Mahesh Khargawat has admitted in his cross-examination that blood group could not be ascertained on the knife and therefore, he cannot say whether human blood found on the knife was of deceased or that of accused. We are not convinced with this argument either because nowhere it has been indicated that in the above scuffle, accused-Dev Chand also got some sharp injury or had bleeded. No such suggestion was put in the cross examination. to any of the eye witness. Even PW 10 Suresh Kumar, SHO has not been put to any suggestion in the cross examination that in the same occurrence Dev Chand also received a sharp edged injury or even at the time of arrest, there was some old injury on his person. Accused appellant-Dev Chand also in his statement under section 313, Cr.P.C. did not disclose that he had got any injury of such nature by which possibility of bleeding was there. Accused appellant-Dev Chand also in his statement under section 313, Cr.P.C. did not disclose that he had got any injury of such nature by which possibility of bleeding was there. Even defence witness DW1 Bhanwari Devi, DW2 Mumtaj has not stated so, therefore, there was no possibility of any blood of accused found on the knife (Art. No.1) 17. This knife along with clothes of the deceased were sealed and sent to Forensic Science Laboratory, Jaipur for examination on 22.8.1996 vide receipt Ex. P15 through PW 9 Kabirdeen. Upon examination, vide FLS report Ex. P20, all these articles were found blood-stained of human origin though due to disintegration blood group could not be determined. However, that by itself will not weaken the prosecution version in this regard. The contention of the learned counsel that the accused could not be connected with the crime as origin of blood could not be ascertained on the articles is not tenable because the Apex Court in Sanjay @ Kola v. The State of (N.C.T. of Delhi), JT (2001) SC 461 , following Teja Ram's case JT 1992 (2) SC 279 as also Gura Singh's case JT 2000 (Supp.) SC 528, was of the view that failure of the serologist to detect the origin of the blood due to disintegration of.the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin ? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far-fetched in the broad spectrum of this case. The effort of the criminal Court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused. 18. Therefore, the accused-appellant has rightly been held by learned trial Court to have caused three sharp-edged injuries on the person of deceased Moti Lal. 19. Mr. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused. 18. Therefore, the accused-appellant has rightly been held by learned trial Court to have caused three sharp-edged injuries on the person of deceased Moti Lal. 19. Mr. Garg, learned counsel for the appellant's plea of private defence has neither found favour with the trial Court nor with us because deceased Moti Lal, alongwith his brother PW 1 Ganesh Mal as also one Kamal Chand, has gone to house of the accused, not to settle some score but to settle a dispute, if at all it existed, between the accused on one hand and his brother Mangi Lal (PW 2) & sister-in-law PW 4 Mst. Chotha Devi on the other. Had they gone to settle some score, they would have been appropriately armed. As the prosecution has been able to prove that accused-Dev Chand was not in a mood to come to terms and therefore, he along with his brother-in-law Bhanwar Lal pushed Moti Lal etc. out of his house but thereafter, without any provocation, Dev Chand took out knife from his pocket and stabbed Moti Lal thrice. When the deceased was out of house of accused, there could not have been any right of private defence of property. Similarly, when the deceased and his companions were unarmed and no injury worth the name has been caused to accused or his brother-in-law Bhanwar Lal, right of private defence of person also was not available. Hence, this plea of the learned counsel for the appellant is. also not tenable. 20. Mr. Garg, learned counsel for the appellant has pleaded that there was no enmity between the parties. Deceased, along with his brother Ganesh Mal Bothra (PW 1), came to house of the accused and while they were quarrelling in house of the accused, they were pushed out and in the heat of the moment, without any premeditation and without taking any undue advantage, deceased was given knife blows. Nowhere it has come in the evidence of the prosecution that when the fatal blow was caused. Nowhere it has come in the evidence of the prosecution that when the fatal blow was caused. In the afore stated factual situation, learned counsel relied upon Division Bench decision of our own High Court in Sarfullah's case (supra) wherein in similar circumstances, conviction of the accused under section 302, IPC was converted to that of Section 304 Part I, IPC and he was sentenced to 5 years' rigorous imprisonment, because there were two stab wounds on the person of the deceased, one was on Harniation of amentom with clean-cut margins and another one was on part of the small intestine. The second injury was found to be dangerous to life. Similarly, Apex Court in Unnithan's case (supra) converted conviction from under section 302 to 304 Part II, IPC because according to post-mortem report, there was a sutured incised wound on the left side of the abdomen which entered the abdominal cavity, which according to medical jurist, was sufficient in the ordinary course of nature to cause death. Relying upon these authorities, Mr. Garg, learned counsel for the appellant contended that the offence does not travel beyond Section 304 Part II, IPC. 21. On the contrary, learned Public Prosecutor argued the accused has inflicted three knife injuries to the person of the deceased, out of them two injuries were caused when the deceased fell down and has acted in a cruel manner. 22. We have considered this aspect of the matter minutely. Looking to the facts and circumstances involved in this matter, it can be safely said that there was no enmity between the parties, rather they were close relatives; deceased being brother-in-law of brother of the accused. Due to partition of the property, there was some dispute between the two brothers - accused on one side and PW 2 Mangi Lal and PW 4 Mst. Chotha Devi on the other. Their houses being situated adjacent to each other and on account of property dispute, prior to occurrence also both the parties were quarrelling with each other on triffle matters. Both the parties would have come to terms in due course but PW 4 Mst Chotha Devi invited trouble by informing her own brother who went to house of the accused and quarrelled with him as a result of which received three stab injuries. 23. Both the parties would have come to terms in due course but PW 4 Mst Chotha Devi invited trouble by informing her own brother who went to house of the accused and quarrelled with him as a result of which received three stab injuries. 23. There could not have been any intention to commit murder but only to push the deceased along with his companies out of the house. There is no doubt left that in a sudden quarrel knife injuries were inflicted. Out of three, only one proved fatal. Even in the post-mortem report, it has not been mentioned that the injuries were sufficient to cause death. Though this defect was cured by PW 7 Dr. Mahesh Khargawat in his deposition before the Court yet keeping in view all these factual and legal situation in mind, in our opinion, offences do not travel beyond Section 304 Part II, IPC. 24. So far as punishment is concerned, Mr. Garg, learned counsel for the appellant, has pleaded that accused has been in custody since 31.7.1996 and he must be awarded punishment for the period he has already undergone whereas according to us, sentence should be adequate and commensurate with the offence. While awarding adequate sentence, Court has to keep in mind the nature & gravity of the offence committed, circumstances of its commission, nature & number of injuries so caused, so also, the age & character of the offender, with an eye on his correction and reformation at all. In the matter at hand, keeping all these factors in view, we are of the opinion that if the accused-appellant is sentenced with 7 years. rigorous imprisonment, that would be adequate to meet the ends of justice. 25. Consequently, we accept this appeal partly and set aside the conviction and sentence awarded by the trial Court and instead, convict the accused-appellant for offence under section 304 Part II, IPC and sentence him to undergo 7 years' rigorous imprisonment, along with fine of Rs. 1000/-, in default of payment whereof to further undergo 2 months rigorous imprisonment.The accused-appellant is in custody.The amended warrant, to above effect may be issued to the Superintendent, Central Jail, Bikaner for compliance.Appeal partly allowed. *******