S. K. AGARWAL, J. ( 1 ) THIS appeal was preferred by appellant Azizullah alias Azizul Haq against his conviction and sentence under S. 302, I. P. C. for life imprisonment and 7 years R. I. under S. 307, I. P. C. passed by the Additional Sessions Judge III, Mau, in S. T. No. 79 of 1997. ( 2 ) THE brief facts of the case, as disclosed in the F. I. R. are that on 24-10-1996 at about 8. 30 P. M. when the informant along with deceased Mohd. Azim went to take betel at the shop of Haridwar Chaurasia, he came across the appellant who was sitting there from before. It is alleged that Mohd. Azim asked the appellant as to why he was searching him for assault. On this an exchange of abuses occurred between them. The appellant suddenly took out a shaving razor (Astura) from his pocket and inflicted injury on the neck of Mohd. Azim, who fell down. Anish Ahmad chased and apprehended him. Appellant freed himself by giving an Astura blow on his abdomen and ran away. The incident was witnessed by the son of the betel shopkeeper Haridwar and others. He was taken in an injured condition by his uncles son Nazir with others to the District Hospital, Mau, and was admitted there. The motive behind the incident, as alleged in the F. I. R. was animosity, which was detailed in the evidence of P. W. 2 Kamruddin as a quarrel during Kabaddi. ( 3 ) THE injured was medically examined by P. W. 6 Dr. Sampoorna Nand Misra at 10. 00 P. M. on 24-10-1996. The injury report shows that he was brought to the hospital by Nazir Ahmad. His injury is as under:1. Incised wound 20 cm. long x 2 cm. x Muscle deep in the outer part but wound is deeper in the medial part (Proking not done), running obliquely outward and slightly upward from left upper part of abdomen on to the left lower (Lateral) aspect of chest, margins are clean cut, bleeding present. "the injury was caused by some sharp object. It was kept under observation and he was admitted in the hospital. Surgeon was called for expert management of his injury. The injury report is Ext. Ka-12. ( 4 ) THE autopsy on the person of the victim was conducted at 3. 15 P. M. on 25-10-1996. "the injury was caused by some sharp object. It was kept under observation and he was admitted in the hospital. Surgeon was called for expert management of his injury. The injury report is Ext. Ka-12. ( 4 ) THE autopsy on the person of the victim was conducted at 3. 15 P. M. on 25-10-1996. Autopsy report shows that neck injury resulted into cut of the muscles. Great vessels, pharynx and trachea were cut completely. Cause of death as noted in the post-mortem examination report. Ext. Ka-3, is haemorrhagic shock as a result of ante-mortem injury. ( 5 ) P. W. 4 Dr. G. C. Maurya during his examination in Court asserted the said facts and clearly stated that his death could have occurred on 24-10-1996 at 8. 30 P. M. This injury was sufficient to cause death. It was also possible from a barbers razor according to him. It is admitted to him that he did not disclose duration of the injury. The duration was described as one day, which, according to him, means 24 hours. It was further admitted in cross-examination that the death could have also occurred at 4. 00 P. M. Semi-digested food was found in the stomach, which, according to him, could not be food taken at 11. 00 A. M. or 12. 00 P. M. He further very clearly admitted that the death could have occurred before 8. 00 P. M. or 4. 00 P. M. on 24-10-1996. It clearly means that he reasserted that it might be at 4. 00 P. M. ( 6 ) SO far as the testimony of P. W. 6 Dr. S. N. Misra is concerned, he admitted in his cross-examination that the edges of the injuries suffered by Anish were clean cut. It was bleeding. It was only muscle deep in the outer part. There was some depth internally. It was caused by some sharp edged weapon. Injury was fresh. It was kept under observation and the patient was admitted and referred to Surgeon for expert management. According to him this injury could be caused at 8. 30 P. M. on 24-10-1996. It was possible from a barbers razor (Astura ). The injury was on the vital part and if it would have sufficient depth death might have occurred. It was kept under observation and the patient was admitted and referred to Surgeon for expert management. According to him this injury could be caused at 8. 30 P. M. on 24-10-1996. It was possible from a barbers razor (Astura ). The injury was on the vital part and if it would have sufficient depth death might have occurred. In cross examination he admitted that on the arrival of the injured he first attended him and thereafter examined his injury. When he arrived in the hospital he was conscious. He very clearly admitted that the length of a barbers razor is small and the injury suffered by injured Anish was not possible from such a weapon. If the weapon is dragged only then such injury could be there. He further admitted categorically that if a long sharp-edged weapon is used once with force, this injury could be caused. The direction of the injury was downwards. The depth of the injury was not regular. Bleeding was there. An incised injury could remain fresh for 7-8 hours. This injury could be within six hours. The injury could also be caused between 2. 00 P. M. and 4. 00 P. M. on the date of occurrence. He denied that he prepared a fake injury report. ( 7 ) THE case was investigated by two Investigating Officers. First Investigating Officer was P. W. 5 S. I. Ramesh Pandey and the investigation was concluded by P. W. 7 Rakesh Kumar Singh. P. W. 8 Raj Mani, the Head Moharir, proved the chick F. I. R. , G. D. etc. of the incident. ( 8 ) THE F. I. R. in this case was registered at P. S. Kopaganj at 0. 30 a. m. on the night intervening 24/25-10-1996. The distance of the police station from the spot was just 2 furlong. ( 9 ) THERE is discovery of the weapon of assault at the pointing out of this appellant after his arrest by P. W. 5. P. W. 3 was the public witness of this discovery. ( 10 ) TWO eye-witnesses, namely, P. W. 1 injured Anish Ahmad and P. W. 2 Kamruddin were examined by the prosecution in support of its case. P. W. 3 was the public witness of this discovery. ( 10 ) TWO eye-witnesses, namely, P. W. 1 injured Anish Ahmad and P. W. 2 Kamruddin were examined by the prosecution in support of its case. ( 11 ) LEARNED counsel for the appellant has challenged the conviction of this appellant on four counts, firstly, that the weapon claimed to have been recovered and referred to in the F. I. R. could not cause the injuries sustained by the deceased and the injured. This was based upon the admission of the witnesses, namely, P. W. 1 Anish Ahmad, P. W. 3 Samshad Ahmad and P. W. 5 S. I. Ramesh Pandey. Secondly, the contention was that the razor, which was used in the incident, was free on its socket and it was turning both ways freely from such a weapon these injuries of the injured and the deceased were highly improbable, meaning thereby that some heavy cutting weapon was used in the incident. Thirdly, the contention is that no source of light was disclosed either in the F. I. R. or in the evidence in trial Court by any of the two eye-witnesses or P. Ws. 5 and 7, the Investigating Officers. It was made on the hypothesis that this incident occurred after sunset. The last submission made by learned counsel for the appellant is that even if the entire case of the prosecution is accepted as true, the case does not travel against the appellant beyond the purview of Section 304, Part II, I. P. C. In this connection he has referred to the evidence and also invited our attention to the F. I. R. where it was stated that Mohd. Azim asked Azizullah, the appellant, on reaching the betel shop of Haridwar that why was he searching him for giving a beating today. A scuffle and hurling of abuses ensued between them in consequence. This version also finds place in the testimony of P. W. 2 Kamruddin. The appellant during exchange of abuses took out a razor (Astura) from his pocket and inflicted injury on the neck of the deceased. In the circumstances, according to him, the offence does not travel beyond the purview of Section 304, Part II, I. P. C. The appellant might have acted in his defence or under some grave provocation provided by injured and the deceased. He himself did not do anything. In the circumstances, according to him, the offence does not travel beyond the purview of Section 304, Part II, I. P. C. The appellant might have acted in his defence or under some grave provocation provided by injured and the deceased. He himself did not do anything. ( 12 ) WE have closely scrutinised the evidence of P. W. 1 Anish Ahmad and P. W 2 Kamruddin. Very lengthy cross-examination of P. W. 1 was conducted in this case. However, on a close scrutiny of his evidence we do not find anything therein by which it could be inferred that the presence of this witness (P. W. 1 Anish Ahmad) was challenged by the defence. He is an injured witness. If his presence is not challenged then we find hardly any material in his evidence on the basis of which we could come to a conclusion that he made any false statement against the appellant. He suffered his injuries in the process of apprehension of the appellant. The question whether the weapon was a heavy cutting one or a barbers razor is also challenged by learned counsel for the defence which, in our opinion, cannot be acknowledged by us. No doubt there is a suggestion that these two deceased and the injured were vagabonds and possessed criminal antecedents. They had on this account somewhere else in some other manner received injuries and the appellant was falsely involved. There is hardly any material in the evidence of P. W. 1 Anish Ahmad in support of this submission. All these suggestions were emphatically denied by this witness. Merely because betel shop owner Haridwar or his son were not produced in evidence by the prosecution in corroboration of this witness, it would not be proper to throw away his evidence especially when his presence was not at all found doubtful. His injury was substantial in nature and he has hardly any motive to depose falsely against the appellant. No such material was elicited in his cross-examination. A bald suggestion, as earlier discussed, that both of them were indulged into criminal activities and they were assaulted somewhere else is not sufficient to discard his presence or his evidence. Failure of this witness to disclose the number of the jeep on which he was taken to the hospital is also wholly immaterial in the context of the situation. A bald suggestion, as earlier discussed, that both of them were indulged into criminal activities and they were assaulted somewhere else is not sufficient to discard his presence or his evidence. Failure of this witness to disclose the number of the jeep on which he was taken to the hospital is also wholly immaterial in the context of the situation. The fact that no F. I. R. was lodged although P. S. Kopaganj fell on their way to District Hospital is also inconsequential. The gravity of the injury of this injured must have weighed heavily in the minds of those who carried him to the hospital. Saving his life must have been of prime concern to them. The injured himself must have been worried about his survival and the pain that he was suffering was enough to forsake him from noticing the number of the jeep. For this very reason he was not taken to the local dispensary which was near the police station because necessary medical facility would not have been available to him there. It is also pointed out that he stated that his father accompanied him whereas P. W. 2 Kamruddin disclosed a contrary fact. According to him there was none other than the witness who took him to the hospital. In the circumstances, so far as the statement of this injured witness P. W. 1 Anish Ahmad is concerned, we have hardly any reason to doubt his testimony that this appellant caused the fatal injury on the person of the victim and also on his person. ( 13 ) COMING to the discrepancy about the weapon we have noticed that in the testimony both P. Ws. 1 and 2 have used the term knife. In our opinion, this charge in their case that the appellant was holding a knife is of no consequence. This is inadvertent use of the word. At several places they used the word Astura as the weapon of assault equally and effectively. Therefore, any such discrepancy will not benefit the appellant in any manner. ( 14 ) P. W. 2 Kamruddins presence was seriously challenged by the defence. We find some substance in the contention raised before us. He is not named in the F. I. R. He was named only during S. 161, Cr. P. C. statement by the informant. Therefore, any such discrepancy will not benefit the appellant in any manner. ( 14 ) P. W. 2 Kamruddins presence was seriously challenged by the defence. We find some substance in the contention raised before us. He is not named in the F. I. R. He was named only during S. 161, Cr. P. C. statement by the informant. We have very carefully examined his evidence and we are of the opinion that this witness was inimical to the appellant. His wife had contested for the membership of the town area. She was opposed by the wife of the injured. This witness is maternal uncle of the injured. He is a resident of another locality. His claim that he was regularly taking betel at the shop of Haridwar is belied by his own statement that he often used to take betel at the shop of Suresh as well. The appellant claimed that he was polling agent of this witness but the suggestion was denied by him. He denied also the fact that any litigation between Kaiku Zaman, a close relation of his, and the appellants father Abdul Kalam ever took place. He pleaded total ignorance about the topography of the place of occurrence and its vicinity. This was done by him, in our opinion, purposively. He also admitted that Anish was challenged under Section 25 of the Arms Act. According to him, he reached the shop of Haridwar at about 8. 30 p. m. Anish and Azim arrived there after 15 minutes and the incident occurred some 3-4 minutes thereafter, meaning thereby that the incident occurred in between 8. 45 and 9. 00 p. m. He came there to take betel and cigarette from the shop. Before the incident it was already purchased. Therefore, there was hardly any occasion for him to be present at this shop. He never learnt about any quarrel between the appellant and the deceased during a Kabaddi match. It is also strange that parents of the appellant did not take any interest in the prosecution of the appellant in this murder case. He further claimed that he took no interest whatsoever in the welfare of his nephew who remained lying there for 10-15 minutes before he ran away from the spot. He named some witnesses who reached the spot. He further claimed that he took no interest whatsoever in the welfare of his nephew who remained lying there for 10-15 minutes before he ran away from the spot. He named some witnesses who reached the spot. He did not disclose the names of those who were present when he came to the spot. Who were present when the incident took place he could not know them. These witnesses were nominated by P. W. 1. He came out with new case that in the Kabaddi match some quarrel occurred between the injured and the appellant. He was a referee in that match. This was neither stated by him in the examination-in-chief nor in his S. 161, Cr. P. C. statement. There he stated that he had learnt that some quarrel between the appellant and the deceased occurred during a game of Kabaddi. In these circumstances, we are of the opinion that he was not present. He deposed on account of enmity with this appellant. Testimony of this witness, therefore, cannot be accepted. ( 15 ) SO far as evidence of discovery is concerned, it cannot be doubted by us. The weapon was discovered by I. O. after the appellant gave a statement to this effect, it was discovered in the presence of P. W. 3. Samshad Ahmad. The only criticism against this witness P. W. 3 levelled by the defence counsel is that he belongs to the same village to which the injured belong. This witness clearly admitted that he knew Anish. He also admitted that he knew Azim from long before. In his statement at one or two places he described the recovered weapon as knife, that is only a mistake. By and large his statement is reliable. It is further corroborated by P. W. 7 S. I. Rakesh Kumar Singh. Minor discrepancy here and there on the point of seal on the bundle of the weapon and preparation of a memo are of no consequence in the facts and circumstances of the present case. ( 16 ) EVIDENCE of P. W. 6 Dr. S. N. Misra that the injury could not be caused by a barbers razor (Astura) is also of no help to the defence. The evidence of P. W. 1 cannot be discarded on his statement alone. P. W. 3 Dr. G. C. Mauryas evidence cannot be overlooked in this regard. ( 16 ) EVIDENCE of P. W. 6 Dr. S. N. Misra that the injury could not be caused by a barbers razor (Astura) is also of no help to the defence. The evidence of P. W. 1 cannot be discarded on his statement alone. P. W. 3 Dr. G. C. Mauryas evidence cannot be overlooked in this regard. He clearly stated that the injury of the deceased could be caused by a barbers razor. He was injured in trying to apprehend the appellant. ( 17 ) THE last submission made by learned counsel for the defence requires serious consideration. It is an admitted fact that the deceased did ask the appellant as to why was he searching him during the day for giving an assault. On this a quarrel and hurling of abuses between them occurred. In its midst the appellant is said to have taken out a barbers razor from his pocket, wielded the same on the person of the deceased once only. The injury to the injured was caused when he tried to nab him. The injury undoubtedly caused extensive internal damage to the muscles great vessels, pharynx and trachea, meaning thereby that the weapon was wielded with optimum force. The abuses were hurled and an altercation took place between them, as admitted by P. W. 2 in his evidence and also available to some extent from the F. I. R. According to P. W. 2 it was an altercation (TU TU MAIN MAIN ). In our opinion, P. W. 1 probably suppressed the nature of the altercation from the Court. It may be that deceased Azim may have committed aggression on the appellant and that might have angered the appellant who took out a most unconventional weapon for this purpose from his pocket and inflicted the fatal injury on his person. The intention, therefore, behind causing this injury may not have been to cause death but to avoid any physical harm to himself and he might have used the weapon without any premeditation. Altercation was suddenly thrust on him by the deceased. It cannot be denied that it might have been done to pick up a quarrel with him. The prosecution has suppressed truth. He was alone and was accosted by two persons. He had taken no undue advantage. Only one injury to the deceased was inflicted by him. Altercation was suddenly thrust on him by the deceased. It cannot be denied that it might have been done to pick up a quarrel with him. The prosecution has suppressed truth. He was alone and was accosted by two persons. He had taken no undue advantage. Only one injury to the deceased was inflicted by him. He, therefore, did not act in a cruel or unusual manner. In the circumstances, we find that he could not even be attributed with necessary knowledge. His case is squarely covered by exception 4 to Section 300, I. P. C. Exception 4 is quoted as under :culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sud-den quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. " ( 18 ) AS earlier discussed, quarrel suddenly erupted between the two on the question put by the deceased to the appellant. Consequently an altercation took place between them. The deceased may have caused aggression or showed that intention which may have made him lose his self-control. The injury caused by him in that process could not be said to be premeditated or caused with any determination arrived at the spot to kill him. The injury, no doubt, was grievous and caused extensive internal damage. However, taking into consideration the above facts and circumstances we are of the opinion that the appellant in the said circumstances might not have used this unconventional weapon to cause death. The offence, therefore, is squarely covered by Exception 4. It is a case of culpable homicide not amounting to murder. The necessary intention to cause death in the present case is lacking though the death had occurred, on the spot, as alleged by witness P. W. 1 Anish Ahmad. We are of the opinion that the appellant did not cause this injury consciously. There was no premeditation behind the infliction of the injury. Any intent to cause his death or knowledge that it is likely to do so is completely lacking in this case. In the circumstances, we hold him guilty for the offence under Section 304, Part I, I. P. C. ( 19 ) HIS appeal in the abovesaid facts and circumstances is partly allowed. His conviction and sentence under Section 302, I. P. C. is hereby set aside. In the circumstances, we hold him guilty for the offence under Section 304, Part I, I. P. C. ( 19 ) HIS appeal in the abovesaid facts and circumstances is partly allowed. His conviction and sentence under Section 302, I. P. C. is hereby set aside. He now is convicted under Section 304, Part 1, I. P. C. and is sentenced to period already undergone. So far as offence under Section 307, I. P. C. is concerned, we find that the injury caused by him was not fatal. Statement of P. W. 6, the Medical Officer, that had it been deeper, death may have occurred is of some consequence. In the circumstances since the injury did not cause any internal damage to any vital organ, it was, in our opinion, simple. No bed head ticket was brought on record. He is convicted, therefore, under Section 324, I. P. C. and his sentence is reduced to 3 years R. I. It has been pointed out by learned counsel for the appellant that he was arrested on 4-11-1996 and is in jail since then. In this manner the appellant has already served out nearly 5 years and little over 7 months. He, therefore, shall be released forthwith if otherwise not wanted in any other case. Appeal partly allowed. .