JUDGMENT : 1. - The appellant Mool Chand along with his wife Smt. Budhi and son Kalu Ram were placed on trial before learned Additional Sessions Judge, Kotputli, District Jaipur in Sessions Case No. 36/96 for having committed murder of Baga Ram. Learned Judge vide judgment dated October 26, 1998 acquitted Smt. Budhi and Kalu Ram but convicted and sentenced the appellant for the offence under Section 302 Indian Penal Code to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment. 2. The Police Station Virat Nagar District Jaipur commenced investigation under Section 302/34 Indian Penal Code on the basis of report submitted by Mohan Lal (PW1), wherein it was stated that for installing the table for the purpose of ironing the clothes at Neemrana Hotel, the dispute existed between the appellant and deceased and on the fateful day it resulted in a tragic incident that took the life of Baga Ram. The appellant gave a knife blow on his neck that proved fatal. On completion of investigation charge-sheet was filed. In due course the case came up for trial before learned Additional Sessions Judge Kotputli. Charge under Section 302 Indian Penal Code was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. In the explanation under Section 313 Criminal Procedure Code the appellant claimed innocence but no witness was examined in defence. On hearing final submissions learned trial Judge convicted and sentenced the appellant as indicated hereinabove. 3. We have heard the submissions advanced before us and scanned the material on record. 4. As per post-mortem Report (Ex.P-4) Baga Ram sustained one injury thus : "Stab wound 3 cm x 2 cm x 5 cm (by external probing) with bruise at both ends of wound of size about 2 cm x 1/4 cm at one end and of size about 5 cm x 1/4 cm at another end. Direction of stab wound is downwards, backwards towards right side." The cause of death was shock due to haemorrhage caused by injury over vital organs and vessels (Carotid Vessels of right side). Dr. Surendra Kumar (PW3) exhibited the Post-Mortem Report and stated that only one injury was found on the person of deceased any no bony injury was seen. 5. Direction of stab wound is downwards, backwards towards right side." The cause of death was shock due to haemorrhage caused by injury over vital organs and vessels (Carotid Vessels of right side). Dr. Surendra Kumar (PW3) exhibited the Post-Mortem Report and stated that only one injury was found on the person of deceased any no bony injury was seen. 5. Conjoint look at the statements of Mohan Lal (PW1), Anita (PW2), Tara (PW4), Meera (PW5) and Sunita (PW6) demonstrates that the fight between the appellant and deceased ensued all of a sudden and the appellant did not take undue advantage of the situation. The knife by which injury was caused was a kitchen knife. It also appears that relations between the appellant and deceased were not strained prior to the incident, they were near relatives and living in the same house. Sunita (PW6) in her cross-examination categorically deposed that it was a sudden quarrel and the appellant had no intention to kill Baga Ram. 6. Mr. Rajendra Yadav, learned Public Prosecutor placing reliance on Mahesh Balmiki @ Munna v. State of Madhya Pradesh, AIR 1999 Supreme Court 3338 , urged that although single injury was caused by the appellant but looking to the nature of injury the intention of appellant to kill the deceased could be inferred. We find no merit in this contention. In Mahesh Balmiki (supra) the accused asked the deceased to come to particular place to receive the watch and at that place three associates of the accused caught hold of deceased and the accused gave a single blow on chest with knife. Total depth of wound was 19 cm. In that situation their Lordships of Supreme Court observed that it could not be said that the fatal injury was inflicted without premeditation. The facts of the case on hand are distinguishable and we find that injury on the person of the deceased was caused by the appellant without premeditation and the appellant in such a situation can be held guilty under Section 304 Part II Indian Penal Code. The appellant has been in the custody continuously since August 6, 1996 and ends of justice would be met in sentencing him to the period already undergone by him in confinement. 7. The appellant has been in the custody continuously since August 6, 1996 and ends of justice would be met in sentencing him to the period already undergone by him in confinement. 7. For the reasons aforementioned we partly allow the appeal and set aside the conviction of appellant under Section 302 Indian Penal Code, instead we convict him under Section 304 Part II Indian Penal Code and sentence him to the period already undergone by him in confinement. The appellant Mool Chand who is in custody shall be set at liberty forthwith if not required in any other case.Appeal partly allowed. *******