JUDGMENT 1. - The appellant Kalyan Dass who stands convicted for offence u/s. 302 IPC and sentenced to imprisonment for life has preferred this criminal appeal challenging the judgment of Sessions Judge, Sriganganagar dated 9.6.2000. 2. Briefly stated the prosecution case is that on 4.11.1999 at about 1.55 a.m., PW-8 Jamnalal, A.S.I., Police Station Kotwali, Sriganganagar on receiving a wireless message from city control room to the effect that a quarrel had taken place in Babu Nirwan Kutiya, Padampur Road rushed to the spot. He found deceased Ganga Dass lying in injured condition. He was immediately removed to the Government Hospital at Sriganganagar. In the opinion of the Medical Officer the injured was in fit condition to make statement . PW-8 Jamnalal recorded the statement of deceased Ganga Dass vide Exhibit P-24. The injured has stated in his statement which served as dying declaration in this case, that the appellant herein Kalyan Dass used to often visit their dera of which PW-3 Mohan Dass was the chief. About 15 days back appellant shifted to the dera from village. After consuming liquor, he used to quarrel with him. On the fateful night, at about 12, the appellant Kalyan Dass demanded a sum of Rs. 50/- from him for purchasing liquor. He also stated that before that both of them had consumed about 3 to 4 perches of liquor. They went inside the room where the appellant with a sharp edged weapon "TONKA" gave three blows on his left ankle, right arm and forehead. On the basis of this parcha bayan Exhibit P-24, a First Information Report Exhibit P-30 was registered at Police Station, Sriganganagar for offence u/ss. 326, 324 and 327 IPC. Initially, the deceased was given treatment at Government Hospital, Sriganganagar but later on, he was removed to Government Hospital at Bikaner where on 9.11.1999 he succumbed to the injuries. On his death, the offence u/s. 302 IPC was added. The dead body was sent for post mortem. PW-13 Dr. P.S. Mathur conducted the post mortem of the dead body of deceased Ganga Dass vide Exhibit P-45. He noticed following injuries on the person of the deceased Ganga Dass: "1. Stitched lacerated wound 5 cm long on right leg below ⅓rd anterolaterally. 2. Stitched lacerated wound 4 cm long on right leg above ⅓rd anterially. 3. Lacerated wound 1.6cm x 0.5cm x depth ? on left forearm below ⅓rd. 4. He noticed following injuries on the person of the deceased Ganga Dass: "1. Stitched lacerated wound 5 cm long on right leg below ⅓rd anterolaterally. 2. Stitched lacerated wound 4 cm long on right leg above ⅓rd anterially. 3. Lacerated wound 1.6cm x 0.5cm x depth ? on left forearm below ⅓rd. 4. Stitched wound forehead on left side vertically placed, 5 cm long. 5. Abr asion 1.2 cm x 1 cm with scab on left eyebrow. 6. Abrasion with scab lx 0.5 cm on right side nose. 7. Multiple abrasions 1-4 cm x 0.1 to 0.5 cm on left thigh laterally lower ⅔rd region. 8. Abrasion 0.7cm x 0.5cm on left knee materially with scab. 9. Abrasion 0.5cm x 0.5cm on left leg in above ⅓rd medially with scab. 10. Abrasion with scab 1.5cm x 0.5 cm on left leg below ⅓rd medially. 11. Swelling left medial malleolus. 12. Abrasion 1.5cm x 1 cm on right forearm above ⅓rd with scab. 13. Bruise irregular 8cm x 5cm on right shoulder. 14. Bruise irregular 4cm x 3cm on right upper arm. 15. Bruise irregular 9.5 cm x 5 cm on left shoulder spirally. 16. Abrasion five in number 0.8cm - 1.2cm x 0.2 x 0.5 cm on left should and left upper arm upper ⅓rd region. 17. There is swelling on right hand ring finger middle phalange." In his opinion, the cause of death was hemorrhage and shock due to multiple injuries. The appellant was arrested. After usual investigation, police laid charge-sheet against the appellant for offence u/ss. 302, 325, 323 and 324 IPC. 3. The appellant pleaded no guilty to the charges levelled against him and claimed trial. The prosecution adduced oral and documentary evidence to prove its case. The appellant in his statement u/s. 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. The trial Court convicted and sentenced the appellant in the manner stated above. 4. With the assistance of learned counsel for the parties, we have perused and scrutinised the entire evidence on record. The learned counsel has pointed out certain contradictions and infirmities in the statements of star prosecution witnesses i.e., PW-1 Laxman Ram and PW-2 Smt. Asha Devi in his endeavor to satisfy us that they did not witness the incident. 5. 4. With the assistance of learned counsel for the parties, we have perused and scrutinised the entire evidence on record. The learned counsel has pointed out certain contradictions and infirmities in the statements of star prosecution witnesses i.e., PW-1 Laxman Ram and PW-2 Smt. Asha Devi in his endeavor to satisfy us that they did not witness the incident. 5. PW-1 Laxman Ram stated that at about 11.00 or 11:30 p.m., while he was taking dinner in his room, the appellant Kalyan Dass arrived. He offered him dinner. He sat down in his room and started consuming liquor. After some time, deceased Ganga Dass also joined him. Initially, they were talking quite friendly. After some time a quarrel took place between them. They started abusing each other. The appellant reprimanded the deceased for appreciating the beauty of his sister when he took him to his house. During the quarrel appellant took up a bamboo of two and two and half foot long and struck on the deceased Ganga Dass. He inflicted 15 to 20 blows to the deceased causing injuries on the legs, hands and other parts of the body. When he intervened, the appellant asked him to keep quiet. He dragged the deceased Ganga Dass outside the room. Thereafter, he knocked the room of PW-2 Asha. She came out and provided water to the deceased. On his telephonic information, police arrived on the spot within 10 to 15 minutes. Deceased Ganga Dass was removed to the hospital. In the cross examination, Laxman Ram was confronted with his earlier statement Exhibit D-1 wherein he stated that in the night at about 1.30 a.m. when he returned from outside, he saw the appellant coming out of the house with an iron "TONKA" in his hand and deceased Ganga Dass was shouting. He denied to have given such statement. He also denied to have given the statement to the effect that appellant inflicted injuries by "TONKA". It is contended by the learned counsel that witness has completely resiled from police statement Exhibit D-1. I am unable to agree with the submission of the learned counsel. As far as time is concerned, in the examination chief, he has stated that at about 11.00 or 11.30 p.m. while he was taking food, the appellant also arrived. Thereafter, the deceased Ganga Dass and the appellant Kalyan Dass consumed liquor. I am unable to agree with the submission of the learned counsel. As far as time is concerned, in the examination chief, he has stated that at about 11.00 or 11.30 p.m. while he was taking food, the appellant also arrived. Thereafter, the deceased Ganga Dass and the appellant Kalyan Dass consumed liquor. This must have taken substantial time and, therefore, the incident could have taken place around 1.30 a.m. 6. PW-2 Sint. Asha Devi has stated that in the night at about 1.30 a.m., she was informed by PW-1 Laxman Ram that appellant has assaulted Ganga Dass. She immediately rushed to the room of Laxman Ram and found Ganga Dass lying in injured condition. She also found that appellant Kalyan Dass standing behind the cottage with "TONKA" in his hand. In our view, she may not be the eye witness but she made statement to the effect that when she reached on the spot, she found the deceased Ganga Dass lying in injured condition and the Kalyan Dass standing behind the cottage with "TONKA" in his hand. Nothing has been elicited to discredit the testimony of this witness. 7. On careful consideration of the statement of both the witnesses, we are of the view that the inconsistency in their statements is not of such a nature which may discredit their testimony. They are the most natural witnesses. The minor variation from their previous statement, does not amount to discredit the core of their evidence. The statement of the witnesses finds corroboration from the medical evidence. The deceased was at the earliest examined by PW-5 Dr. O.P. Sharma. He prepared the injury report Exhibit P-4. He found the injuries on left ankle, right arm and forehead. The injuries were caused by the sharp edged weapon. 8. PW-9 Suman Ali, Sub-Inspector of Police has given the entire details of investigation. He has stated that in pursuance of the information given by the appellant vide Exhibit P-32, a blood stained "TONKA" was recovered vide Exhibit P-33 which was sent to the Forensic Science Laboratory for chemical examination. The link evidence has not been challenged by the learned counsel as such it is not necessary to deal with the same. As per the F.S.L. Report Exhibit P-38, the "TONKA" was found to be stained with human blood. The link evidence has not been challenged by the learned counsel as such it is not necessary to deal with the same. As per the F.S.L. Report Exhibit P-38, the "TONKA" was found to be stained with human blood. Thus, taking together the statement of PW-1 Laxman Ram and PW-2 Smt. Asha Devi as corroborated by the medical evidence and the recovery of the blood stained "TONKA" and further the purcha bayan Exhibit P-24, it may safely concluded that the prosecution has succeeded in establishing its case beyond reasonable doubt. 9. Turning to the nature of offence, it emerges form the statement of PW-1 Laxman Ram and the statement of deceased recorded vide Exhibit P-24, both the deceased and the appellant were consuming liquor and all of a sudden the incident took place. None of the injuries are on vital part of the body. One injury on the head is simple in nature. PW-13 Dr. P.S. Mathur admitted that none of the injuries taking singularly was sufficient in the ordinary course of nature to cause death. He only stated that all the injuries taking collectively were likely to cause death in ordinary course of nature. He further admitted that if the blood could have been arranged in time, the possibility of deceased being saved can not be denied. He also admitted that as per the chemical report, the deceased had consumed liquor before his death. Thus, it can be inferred that the appellant caused injury to the deceased without pre-meditation in sudden fight. The totality of evidence, in our considered opinion, leads to an irrestistable conclusion that the offence that the appellant had committed, is punishable u/s. 304 Part-I IPC but not u/s. 302 IPC, since exception 4 is attracted to the facts of this cast. 10. In the result, we partly allow the appeal. The conviction of the appellant u/s. 302 IPC is set aside. He is convicted for offence u/s. 304 Part-I IPC and sentenced to undergo imprisonment for a period of seven years. The fine shall remain intact. The appeal is disposed of-subject to modification of the conviction and sentence as indicated above.Appeal partly allowed. *******