V. N. SINGH, J. Criminal Appeal has been filed against the judgment and order dated 20-2-1981 passed by Sri G. Chandra the then IIIrd Addl. District & Sessions Judge, Gorakhpur, in S. T. No. 106 of 1980, Case crime No. 195 of 1979, P. S. Shaymdeorwa, District Gorakhpur, by which he held appellant guilty under Section 302 IPC and convicted and sentenced him to undergo to life imprisonment. 2. Prosecution case, in brief, is that Girja Shanker Naik lodged a report on 19-12-1979 at 2. 15 p. m. at Police Station Shaymdeorwa, (sub-District Mahrajganj), District Gorakhpur that on 19-12-79 at 1. 00 p. m. while, he alongwith his brother Amarnath was irrigating his field, Chenkai Tiwari appellant came there and prohibited him and also began to close the nali through which, water was flowing because he wanted to irrigate his field first. Heated altercation took place between them and when Amarnath requested him not to do so, Chenkai Tiwari began to abuse. Ramhit, Dushad, Nayak and Mithai came there on hearing the abuse. Due to annoyance, Chenkai Tiwari attacked on Amarnath by knife in the chest due to which he sustained injuries and fell down. While they were carrying injured Amarnath to the Partawal Bazar hospital, in the way he succembed to his injuries. The dead body of Amarnath was lying in the hospital of Partawal Bazar. 3. The post-mortem of dead-body of Amarnath was conducted by Dr. K. K. Mall on 20-12-1979 at 3. 00 p. m. 4. During investigation, Panchayatnama Ext. Ka 6, Photo Lash Ext. Ka 7, Chalan Lash Ext. Ka 8 were prepared and the dead-body of Amarnath was sent through constables Banchan Ram and Bhumideo Singh. The I. O. visited the place of occurrence and he found that, blood stains were washed away due to flowing of water. He got arrested the accused/appellant, who was trying to flee away and came to the Police Station alongwith accused and made entry in the G. D. at serial No. 26 at 6. 10 p. m. on 19-12-79, copy of the same is Ext. Ka 9. After completion of investigation, charge-sheet was submitted against the appellant. 5. Prosecution examined PW 1 Ramhit (an eye-witness), PW 2 Mithai (an eye witness), PW 3 Dr. 10 p. m. on 19-12-79, copy of the same is Ext. Ka 9. After completion of investigation, charge-sheet was submitted against the appellant. 5. Prosecution examined PW 1 Ramhit (an eye-witness), PW 2 Mithai (an eye witness), PW 3 Dr. K. K. Mall, who conducted the post-mortem PW 4 Sri Ramanuj Shukla SICP Cadet PTC Moradabad, who was acting as Head Moharrir at the Police Station Shyamdeorwa, and who prepared the chick Ext. Ka 3 and made entry in the G. D. No. 19 at 2. 15 p. m. , copy of which is Ext. Ka 4 and sent special report through constable No. 314 Ram Kailash vide G. D. No. 21 at 21. 55 p. m. , copy of which is Ext. Ka 5. PW 5 S. I. Sri Tribeni Singh conducted part of investigation. 6. Prosecution also examined complainant PW 6 Girja Shanker Rai. PW 7 Sri Dinesh Rai, who proved Ext. Ka 11, site plan, arrested the accused/appellant recorded the statement of witness Mithai and submitted charge-sheet Ext. Ka 12. PW 8 constable Bechan Ram, who deposed that on 19-12-1979 Daroga Ji handedover the dead body of Amarnath for post-mortem. He produced the dead-body before the Doctor and identified the dead body. Till the dead-body was in his possession, no body was allowed to touch the dead body. 7. Accused/appellant Chenkai Tiwari deposed in his statement under Section 313 Cr. PC that, Amarnath was killed in the night. He used to reside separately. His family members were not ready for the marriage of Amarnath. He got married Amarnath on account of friendship. Due to which, complainant became annoyed. 8. No witness was produced in defence by the accused/appellant. 9. After hearing both the parties, learned trial Court convicted the accused under Section 302 IPC and sentenced him to life imprisonment, hence this appeal. 10. We have heard learned counsel for the appellant and learned AGA as well as perused the record. 11. It has been argued by the learned counsel for appellant that, no blood was found on the spot, which shows that place of occurrence is different. 12. It has been argued by learned AGA that it is admitted that altercation took place in connection with irrigation of field and PW 7 Sri Dinesh Rai, I. O. has deposed that blood was washed as water was spread as Nali was broken. 13. 12. It has been argued by learned AGA that it is admitted that altercation took place in connection with irrigation of field and PW 7 Sri Dinesh Rai, I. O. has deposed that blood was washed as water was spread as Nali was broken. 13. In this connection, attention of the Court has been drawn towards the site plan also, in which, in index B, it has been mentioned that, as Nali has been broken, hence water has spread and blood has been washed away. This fact has been mentioned in the case diary also, which has been perused by the Court. 14. In this connection, attention of the Court has been drawn towards the statement of PW 1 Ramhit, who deposed that, Amarnath after receiving injuries of knife by accused/appellant, fell down towards south of Nali, situated in his field. In such circumstance, absence of blood on the spot has been explained and argument of the learned counsel for appellant has no force. 15. It has been argued by learned counsel for appellant that according to the statement of PW 1 Ramhit and PW 2 Mithai recorded by the I. O. under Section 161 Cr. P. C. , they have gone to the hospital alongwith injured Amarnath, while according to their statement recorded in the Court, they did not go to the hospital. As such their statement is contrary to each other. 16. In this connection, copy of the statement of Ramhit PW 1 recorded by I. O. under Section 161 Cr. PC which is Ext Kha 1 and copy of the statement of Mithai PW 2, which is Ext. Kha 2 is material. From perusal of Ext. Kha 2, copy of the statement of Mithai recorded by I. O. and according to the case diary, which is before the Court in the statement of witness Mithai, it has not been specifically stated by Mithai that, he had gone alongwith Amarnath to the hospital. This much has been stated that Amarnath was brought to the hospital, but while going to hospital, he died due to injuries received. In the Court, this question was not put Mithai that he has stated before the I. O. that he had gone to the hospital alongwith Amarnath. He has specifically deposed in the cross-examination that, he had not carried Amarnath to hospital. In the Court, this question was not put Mithai that he has stated before the I. O. that he had gone to the hospital alongwith Amarnath. He has specifically deposed in the cross-examination that, he had not carried Amarnath to hospital. Amarnath was carried to hospital by Girja Shanker, Prardumna, Gherau, Ram Nain Bhar and Satyadeo, total five. This statement of the witness has not been challenged by the accused/appellant. 17. According to the statement of Ramhit PW 1 recorded by the I. O. copy of which is Ext Kha 1, witness Ramhit, Mangal and Mithal began to carry deceased Amarnath to Partawal hospital. 18. According to evidence on record, even in the statement of Ramhit, recorded by the I. O. under Section 161 Cr. P. C it has not specifically been stated by the witness Ramhit, that, Ramhit alongwith Mangal and others carried Amarnath to the hospital. Only this much has been deposed that they began to carry. It does not mean that, they carried Amarnath to the hospital. 19. Witness Ramhit, deposed in the cross-examination that, Girja, Praduman, Satyadeo, Pradhan Gherau and Ram Nain carried Amarnath to the hospital on his cot. No other person have gone alongwith them to Partawal hospital and witness Mithai and Mangal came to their houses from the place of occurrence. It has not been stated by him that, he, Mangal, Mithai and Girja Shanker carried Amarnath to Partawal hospital. 20. The statement of Ramhit that, Girja Shanker Parduman, Satyadeo, Pradhan Gherau and Ram Nain carried Amarnath to the hospital, has not been challenged. 21. As statement of Ramhit and Mithai that, Girja Shanker, Pradum, Satyadeo, Pradhan Gherau and Ram Nain carried Amarnath to Partawal hospital has not been challenged, it cannot be said that the witnesses Ramhit and Mithai have given contrary statement regarding carrying Amarnath to the hospital by them. 22. It has also been argued by learned Counsel for appellant that witnesses Ramhit and Mithai have admitted that they worked as a labourer at the house of complainant Girja Shanker. As such their statement should not be believed as they are interested witnesses. 23. From the perusal of record it is clear that, witness Mithai deposed that, they are labourers and they worked at the house of Girja Shanker and they work, where they get labour work. 24. As such their statement should not be believed as they are interested witnesses. 23. From the perusal of record it is clear that, witness Mithai deposed that, they are labourers and they worked at the house of Girja Shanker and they work, where they get labour work. 24. Witness Ramhit, has deposed that, Harwaha (Labourer) of Girja Shanker are Jagarnath and Sarwari Bhar. This fact has not been challenged by the accused/appellant that, Jagarnath and Sarwari Bhar are not Harwaha of Girja Shanker. It is natural that witnesses Ramhit and Mithai are labourer and where they get work, they work for the payment. On this ground, it cannot be said that, they are interested witness. Moreover, when witness Ramhit has specifically deposed that, Harwaha of Girja Shanker are Jagarnath and Sarwari Bhar, the argument of learned counsel for appellant has no force that the witnesses Ramhit and Mithai are interested witnesses. 25. It is clear from record that witnesses Ramhit and Mithai are independent witnesses, there is no reason to falsely implicate accused/ appellant, neither they had any motive for false implication, nor they had any enmity with the accused/appellant and they had specifically alleged that they are not Harwaha of Girja Shanker. 26. It has been argued by learned counsel for appellant that PW 6 complainant Girja Shanker Naik, has stated that deceased was wearing suit at the time of occurrence. While clothes recovered from the dead-body of deceased bush-shirt Ext-1, Cardigan Ext. 2, Half Bandi Ext. 3, Underwear Ext. 4, Pant Ext. 5, Janeu Ext. 6 and Key Ext. 7 have been proved by the complainant. It contradicts the statement of Girja Shanker Rai that, deceased was wearing suit at the time of occurrence. 27. Argument of the learned AGA is that, incident took place on 19-12-1979 at 1. 00 p. m. while the statement of this witness was recorded in the Court on 8-1-1981 after more than a year. Hence due to lapse of time, such statement has been made. 28. In this connection, it has also been argued that, according to Panchayatnama, at the time of occurrence deceased was wearing jacket, cartigan, hence under this impression complainant might have deposed that, he was wearing suit. It has also been argued that this is not material contradiction and does not affect the prosecution case. 29. 28. In this connection, it has also been argued that, according to Panchayatnama, at the time of occurrence deceased was wearing jacket, cartigan, hence under this impression complainant might have deposed that, he was wearing suit. It has also been argued that this is not material contradiction and does not affect the prosecution case. 29. It has also been argued by the learned Counsel for appellant that, according to the prosecution there was mud stains on the clothes of the deceased, but complainant has admitted at the time of his statement in Court that clothes of the deceased did not contain mud stains. 30. It has been argued by learned A. G. A. that as mud would have dried hence there was no question of presence of mud on the clothes of the deceased. 31. It has also been argued by the learned Counsel for the appellant that, accused has stated that as family members of the deceased were not interested in the marriage and he got him married, therefore, they were annoyed and got him falsely implicated. 32. In this connection, it has been argued by the learned A. G. A. that, complainant has specifically deposed that it is wrong to say that accused Chenkai Tiwari got the deceased married. It is also wrong to say that, they did not participate in the marriage. It has also been argued by learned A. G. A. that according to the post-mortem report age of the deceased was 24 years, therefore, it cannot be said that, family members of the deceased were not interested in the marriage of the deceased and the argument of learned Counsel for appellant has no force. 33. From perusal of record it is clear that, F. I. R. has been promptly lodged. There is no delay in lodging of the F. I. R. It is a broad day light occurrence, witnesses are independent witnesses, they are not chance witnesses and house of Ramhit is at a distance of about 350-375 steps from the place of occurrence and his presence is natural. Witness Mithai also belong to the same village. His presence was also natural and Dr. K. K. Mall, who conducted the post-mortem has supported the prosecution case that, death is possible by knife and it may be possible on 19-12-1979 at 1. Witness Mithai also belong to the same village. His presence was also natural and Dr. K. K. Mall, who conducted the post-mortem has supported the prosecution case that, death is possible by knife and it may be possible on 19-12-1979 at 1. 00 p. m. Blood stains were found on the clothes of the deceased and field of accused/appellant is near the place of occurrence. In these circumstances we are of the opinion that prosecution has fully proved its case beyond reasonable doubt against accused/appellant. 34. It has been argued by the learned Counsel for the appellant that, it is not the case of murder and is not covered under Section 302 IPC. , even though the prosecution case is accepted, as offence was committed without premeditation in a heat of passion and without taking undue advantage and accused has not acted in cruel or unusual manner, hence it is a case of culpable homicide not amounting to murder and it is liable to be covered under Section 304 Part-II IPC. 35. In this connection, attention of the Court has been drawn towards the Exception 4 of Section 300 IPC which reads as follows: - "exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. " 36. In this connection, attention of the Court has also been drawn towards Section 304 IPC, which reads as follows: - "punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder, shall be punished with {imprisonment for life} or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death , or of causing such bodily injury as is likely to cause death. Or with imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. " 37. Or with imprisonment of either description for a term which may extend to ten years, or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. " 37. It is true that prosecution has not proved that there was preplanning for murder. The offence was committed in heat of passion without premeditation and without taking undue advantage or acting in cruel or unusual manner and that it has also not been proved that accused/appellant had intended to cause death of Amarnath. 38. It is true that it cannot be disputed that as appellant attacked on the chest of deceased by knife, it is clear that he has knowledge that injury is likely to cause death. As such offence is covered under Section 304 Part-II IPC. 39. In such circumstances, appellant is held guilty under Section 304 Part-II IPC instead of Section 302 IPC. 40. Criminal appeal is partly allowed. The judgment and order dated 20-2-1981 passed by learned trial Court, is modified to the extent that appellant is held guilty under Section 304 Part-II IPC instead of Section 302 IPC and is sentenced to undergo 7 years R. I. instead of Life Imprisonment. 41. The accused/appellant Chenkai Tiwari is on bail. His bail bond is cancelled and sureties are discharged. The C. J. M. Gorakhpur is directed to get the accused/appellant arrested and sent him to Jail to serve out the sentence awarded by this Court. Appeal partly allowed. .