JUDGMENT Lokeshwar Singh Panta, J. :- Appellant Suresh Kumar (hereinafter referred to as the accused) has challenged the judgment and order dated 29.6.2002 passed by learned Addl. Sessions Judge-1, Kangra at Dharamshala convicting him under Section 302 of the Indian Penal Code (for short the IPC) and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/-. Fine, if recovered was ordered to be paid to complainant father of the deceased as compensation. Briefly stated the prosecution case is as follows:- 2. PW-1 Brij Lal is the resident of village Nadd, Tehsil Baroh, District Kangra. PW-3 Sarwan Kumar also belongs to the same village. On 27.2.2001 marriage of Sanjay Kumar son of PW-3 was solemnized. At about 6.30 a.m. Baraat of Sanjay Kumar started on foot from village Nadd to Danoa. PW-1 and his son Sanjay Kumar also participated in the said marriage party. At about 7.30 p.m. the marriage party reached at a place known as Thanda Panni". One more marriage party from village Lahar also reached at "Thana Panni". Most of the boys participating in both the marriage parties were singing and dancing. There was some protest giving arising exchange of abuses and altercation between the accused and Sajeev Kumar on a trivial issue. The accused took out knife from the pocket of his trouser and struck its blow on the stomach of Sanjeev Kumar. As a result of blood injury he fell down on the ground and became unconscious. The accused then fled from the spot. PW-1 called his wife from the village, they both arranged a private jeep to take injured Sanjeev Kumar to hospital at Kangra, but Sanjeev Kumar died on the way at Rasooh Chowk. PW-1 informed PW-2 Smt. Usha Guleria, Ex-Member of Zila Parishad about the incident. PW-2, in turn, informed state S.L./S.H.O. Police Station, Kangra from her PCO about death of Sanjeev Kumar due to factual injuries caused with knife. PW-11 S.I. Gurbux Singh, Station House Officer, Police Station, Kangra recorded the telephonic information of PW-2 in daily diary Ext. PW-9. He alongwith ASI Dulo Ram, Head Constable Kaur Chand, constables Sunil Kumar and Subash Chand immediately proceeded to the spot. PW-11 recorded the statement (Ext. PA) of PW-1 .complainant under Section 154 of the Code of Criminal procedure which was sent to Police Station for registration of the First Information Report. PW-9. He alongwith ASI Dulo Ram, Head Constable Kaur Chand, constables Sunil Kumar and Subash Chand immediately proceeded to the spot. PW-11 recorded the statement (Ext. PA) of PW-1 .complainant under Section 154 of the Code of Criminal procedure which was sent to Police Station for registration of the First Information Report. PW-12 Inspector Surinder Singh recorded First Information Report (Ext. PW-11/K). Inquest report (Ext. PW-11/B) was prepared by PW-11 on the spot. The dead body of deceased Sanjeev Kumar was sent to Civil Hospital at Kangra for postmortem. PW-11 visited the place of occurrence on the same day. On the following day he prepared spot map (Ext. P-11/C) and recorded the statements of the witnesses. He went to village Khart, where the members of the Baraat were staying. He made search for the accused who at about 11 a.m. was found sleeping in the house of one Amar Nath. The accused was interrogated and arrested by PW-11. On personal search of the accused Dagger1 (Ext. P-1) was recovered concealed by him underneath the shit and tucked in the waist. Recovery memo (Ext. P-11/P) of the Dagger was prepared in the presence of PW-6 Ramesh Kumar and Amar Nath (not examined). Daggar Ext. P-1 was sealed in a parcel with seal impression T which after use was handed over to PW-6. Sketch map (Ext. P-11/C of Daggar1 was also prepared. On 28.2.2001 Daggar1 alongwith specimen of seal impression was deposited with PW-10 Head Constable Des Raj in the Police Station. 3. PW-13 Dr. D.P. Swami conducted postmortem examination on the body of Sanjeev Kumar on 28.2.2001 at 11.30 a.m. in Dr. Rajinder Parshad Govt. Medical College and Hospital, Dharamshala. Dr. Swami found the following injuries on the body of the deceased :- External Appearance “…………. “Stab marks also seen on the two vests (one T shirt) deep 1 inch x 1/2 inch Spindle shaped with clotted blood on these two clothes, Pant, Pajama, and Kachha blood tickled down from this wound of right lower chest to pubic (genitals) region, raddish, bright." Anti mortem wounds 1. "Stab wound, on right lower, front chest at 7th rib 1 inch away from sternum/above down ward tailing down, sharp margins spindle shaped." Abdomen Column of liver.... 1 inch x % inch x 3 inch in length x breadth and depth. "Stab wound, on right lower, front chest at 7th rib 1 inch away from sternum/above down ward tailing down, sharp margins spindle shaped." Abdomen Column of liver.... 1 inch x % inch x 3 inch in length x breadth and depth. Stab wound spindle shaped continuation from injury as reflected in external appearance on upper mid surface, pale, clotted 00 cc bipod in the area. Diaphragm also cut adjoining to this area. In the opinion of the Doctor, Sanjeev Kumar died of blood loose shock due to antimortem injury to liver by stab injury. Injury caused to the deceased was sufficient in the ordinary course of nature to cause death immediately. Postmortem report (Ext. PW-13/B) was handed over to PW-11. 4. PW-11 on receipt of the Chemical Examiners reports (Ext. Pw-11/1) and (Ext. PW-11/J) and on completion of the investigation handed over the case file to PW-12 who prepared the challan and the accused was sent up for trial. He pleaded not guilty to the charge and claimed to be tried. 5. The prosecution in support of its case examined as many as 12 witnesses. The accused in his statement recorded under Section 313 Cr.P.C. pleaded false implication being an orphan. He stated that he is not the resident of village Lahar and in fact he belongs to village Sansai. He was not present in the marriage party at Thanda Panni. His defence was that Daggar (Ext. P-1) was planted on him in Police Station, Kangra. He, however, admitted that he was arrested by the police from the house of Amar Nath at about 1.30 noon and not 11.00 a.m. as alleged by the prosecution. 6. The trial Court found the evidence Of PW-2, PW-3 and PW-4 corroborated by medical evidence of PW-13 cogent and reliable. Placing reliance on their evidence, the learned trial Court found the accused to be guilty of the offence punishable under Section 302 IPC. He, therefore, vide impugned judgment and order convicted and sentenced the accused as aforesaid. 7. Feeling aggrieved by the conviction and sentence imposed upon him, the accused has preferred this appeal. 8. We have heard learned Counsel for the accused and learned Additional Advocate General for the State. 9. In support of the appeal Mr. He, therefore, vide impugned judgment and order convicted and sentenced the accused as aforesaid. 7. Feeling aggrieved by the conviction and sentence imposed upon him, the accused has preferred this appeal. 8. We have heard learned Counsel for the accused and learned Additional Advocate General for the State. 9. In support of the appeal Mr. Anup Chitkara, learned Counsel submitted that the presence of PW-1 father of the deceased at the place of occurrence is doubtful and the accused has not been identified by him or by any other witness to be the real culprit. He next contended that there are material discrepancies in the version of PW-1 recorded under Section 154 Cr.P.C. and deposed by him before the Court during the trial which would prove that PW-1 has given a concocted version at the instance of police to implicate the accused in a false case. Lastly, the learned Counsel contended that the accused had no motive or intention to murder the deceased and if any offence is found having been committed by him, it was at the spur of the moment when the participants of both the marriage parties were signing and dancing and therefore, the offence is covered by Exception 1 and Exception 4 of Section 300 I.PC. 10. In response, learned Additional Advocate General for the State has supported the judgment of learned trial Court and further submitted that in view of the analysis made and nature of the injuries proved to have been inflicted by the accused on vital part of the body of the deceased, causing his death, the case squarely falls under Section 302 IPC. He also submitted that the accused has not pleaded in his statement under Section 313 Cr. P. C. nor any suggestion was put to any of the witness that he inflicted stab injury on the body of the deceased on above and sudden provocation, therefore, this contention of the learned Counsel for the accused cannot be accepted at this stage 11. In order to appreciate the noval contentions of learned Counsel for the parties; we have gone through the evidence on record and have noticed the feature of the case 12. The occurrence has its genesis on a trivial issue when two different marriage parties had assembled at a place known as Thanda panni. In order to appreciate the noval contentions of learned Counsel for the parties; we have gone through the evidence on record and have noticed the feature of the case 12. The occurrence has its genesis on a trivial issue when two different marriage parties had assembled at a place known as Thanda panni. There was some protest giving rise to exchange of abuses and altercation between the accused and the deceased on trivial issue namely signing and dancing haphazardly as deposed by PW-1 father of the deceased! PW-1 has deposed that he was present at the place of occurrence alongwith other persons of the marriage party of the son of PW-3. He stated that the accused stabbed his son who as a result of bleeding injury felt down on the ground and the accused immediately fled from the spot. He alongwith his wife took his son in a private vehicle to hospital at Kangra for medical treatment but his son succumbed to his injury on the way at Rasooh Chowk. He informed PW-2 about the incident and she in turn telephonically informed the police. The police reached at Rasooh Chowk and in the meantime Sanjeev Kumar had expired. He has admitted in the cross-examination of the defence that Lahar and Sansai are two different villages. He in clear words has stated in statement (Ext.PA) that the accused is the son of Bidhi Chand caste Brahmin resident of village Lahar. A suggestion of the defence that at the place of occurrence he was told by the members of the marriage party that there was some scuffle in the marriage at village Nadd in which his son was injured, has been categorically denied by him. He admitted a suggestion of the defence that he had no enmity with the accused. Further suggestion of the defence that he was not a member of the marriage party, was also denied by him. He also denied the suggestion that he was deposing falsely against the accused at the instance of co-villagers and the police. The evidence of PW-1 is wholly reliable, trustworthy and convincing. He has proved in his deposition that the accused struck a blow of Daggar on the chest of his son. The evidence of his witness cannot be discarded only on the ground that he is being related to the deceased. The evidence of PW-1 is wholly reliable, trustworthy and convincing. He has proved in his deposition that the accused struck a blow of Daggar on the chest of his son. The evidence of his witness cannot be discarded only on the ground that he is being related to the deceased. His evidence inspires confidence and has been rightly accepted by the learned trial Court. There is no explanation as to why-the accused should be falsely implicated by him. 13. PW-2 has corroborated the version of PW-1 that parents of deceased Sanjeev Kumar came to her in STD, PCO at Rasooh Chowk on 27.2.2001 at about 9.30 p.m. and told her that their son had been stabbed by one person by the name of Suresh Kumar. In cross-examination she admitted that the parents of the deceased told her that their son was receiving injury in a marriage party at Nadd Jagani. She denied a suggestion of the defence that she was never told the name of assailant. PW-.3 father of bridegroom Sanjeev Kumar has turned hostile to the prosecution, in his cross-examination conducted by the Public Prosecutor he admitted that Sanjeev Kumar son of PW-1 was taken to Rasooh Chowk by his parents and some other persons in a vehicle. In cross-examination of the defence he admitted that when Barat of his son reached at Thanda Panni, it became quite dark and nothing was visible. PW-4 Bikram Singh was also a member of the marriage party of the son of PW-3. He deposed that the members of the Barat1 assembled at Thanda Panni carried in two vehicles. Some members of the marriage party were dancing. Sanjeev Kumar fell on his foot. On his asking Sanjeev Kumar told him that he was given stab blow by Suresh Kumar. Sanjeev Kumar was taken in a vehicle by his parents. In cross-examination of the defence this witness has stated that he did not know who was Suiesh Kumar and to which place he belonged. He denied the suggestion of the defence that Sanjeev Kumar did not tell the name of the assailant to him. PW-5 Sanjeev Kumar s/o Amar Singh was also member of the marriage party of the son of PW-3 Sarwan Kumar. As per his version the marriage party was waiting for boarding a bus at Thanda panni on the day of occurrence. Some members of the marriage party were dancing. PW-5 Sanjeev Kumar s/o Amar Singh was also member of the marriage party of the son of PW-3 Sarwan Kumar. As per his version the marriage party was waiting for boarding a bus at Thanda panni on the day of occurrence. Some members of the marriage party were dancing. He found Sanjeev Kumar lying on the ground. !t is in his evidence that when PW-4 asked Sanjeev Kumar as to what had happened to him, the later disclosed that he was given stab blow by Suresh Kumar. 14. PW-6 Ramesh Kumar Up-pardhan of Gram Panchayat, Bussal at the relevant time was also a member of marriage party of the son of PW-3. He stated that on 28.2.2001 police officials reached in the village at about 12.30 noon, when they were sleeping in the house of Amar Nath. He was woken up and asked about the whereabouts of other member of the second marriage party. Suresh Kumar accused was found in the house of Amar Nath who was taken by the police officials with them. On the following morning he went to Police Station, Kangra where he was told by the police that he would be a witness about the arrest of the accused and recovery of knife from him. This witness also turned hostile to the prosecution and denied the persona search of the accused by the police in his presence in cross-examination of the Public Prosecutor. Daggar (Ext. P-1) was shown to him by the Public Prosecutor in the Court. Amar Nath in whose house the accused was found sleeping was not examined by the prosecution. The Public Prosecutor made a statement before trial Court on 19.3.2002 to giving up witnesses namely Anirudh, Daljit Singh, Surjit Singh, Amar Nath, Ajay Kumar, Bhiwani Shankar, Madan Lai, Lekh Raj, Kushal Kumar and Sanjay Kumar being won over by the accused. The Investigating Officer |n the cross-examination of the defence has denied that the accused is a resident of village Sansai. He stated that he did not find any blood stained soil on the spot. Further suggestion of the defence that the accused has been falsely implicated in the present case at the instance of the father of the deceased and other village people was categorically denied by him. 15. He stated that he did not find any blood stained soil on the spot. Further suggestion of the defence that the accused has been falsely implicated in the present case at the instance of the father of the deceased and other village people was categorically denied by him. 15. On reappraisal and scrutiny of the evidence of PW-1, we find no good ground or sound reason to disbelieve and discard this testimony. He is the sole eye witness of the occurrence as the other witnesses who have appeared in the present case have resiled from their earlier statements made to the police during the investigation. PW-1 has identified the accused to be a perpetrator of the crime. It is true that in his examination-in-chief he deposed before the Court that the accused had muffled his face when stab blow was given by him on the chest of his son. This version of the witness was not found mentioned in statement Ext. PA on the basis of which FIR (Ext. PW-11/K) was recorded by PW-11. This contradiction appearing in his evidence is very minor and no benefit can be derived therefrom by the accused to establish that the witness was not present on the spot at the time of incident or he is not a truthful witness as contended by learned Counsel. Therefore, this contention of the learned Counsel cannot be accepted. 16. The independent witness PW-6 in whose presence Daggar (Ext. P-10 was recovered from the possession of the accused has not supported the prosecution version, but it has come in his evidence that on 28.2.2001 the accused having a member of the second marriage party was sleeping in the house of Amar Nath during the intervening night at 27/28.2.2001. The evidence of the Investigating Officer is consist(?) to prove that Daggar (Ext. P-1) was recovered from the possession of the accused which was concealed by him under the shirt and tucked in the waist. He has categorically denied a suggestion of the accused that Daggar was not recovered from the personal search of the accused. Assistant Director, Forensic Science Laboratory in his report (Ext. PW-11/J) found human blood on Daggar (Ext. P-1) but its blood group could not be determined conclusively. He has categorically denied a suggestion of the accused that Daggar was not recovered from the personal search of the accused. Assistant Director, Forensic Science Laboratory in his report (Ext. PW-11/J) found human blood on Daggar (Ext. P-1) but its blood group could not be determined conclusively. As noticed above, the accused in answer to question No. 10 admits that he was arrested by the police from the house of Amar Nath at about 1.30 in the night and Daggar was planted on him by the Police Station, Kangra. There is no evidence on record to establish that the police officials of Police Station, Kangra were inimical towards the accused to implicate him in a false case. From the evidence on record the prosecution has proved the charge against the accused beyond reasonable doubt. Name of the accused was disclosed by the deceased to PWs 4 and 5 immediately after he received Daggar blow struck by the accused. From the evidence of PW-1, PW-4 and PW-5 it is proved that the deceased knew the name of the accused to be an assailant, otherwise it was not possible for him to tell the name of the accused to these witnesses immediately after he fell down on the with stab injury. The accused has not whispered a word in his statement under Section 313 Cr.P.C. that the deceased was inimical towards him and has falsely disclosed his name to the witnesses. There is nothing on record to prove that there was any other person by the name of Suresh Kumar who was present in the marriage parties at Thanda Paani. We do not find any good reason to differ with the finding and reasoning recorded by the learned trial Court holding the accused guilty of the offence. 17. Now, we shall deal with the last contention of learned Counsel for the accused that on the facts established in the case no offence under Section 302 IPC has been committed and the accused should have been convicted under Section 304, Part-Ill of the IPC. In support of this contention reliance is placed on series of judgments of the Honble Supreme Court. We do not think it necessary or expedient to make reference to all of them. In the case of KM. Nanavati v. State of Maharashtra, AIR 1962 Supreme Court 605. In support of this contention reliance is placed on series of judgments of the Honble Supreme Court. We do not think it necessary or expedient to make reference to all of them. In the case of KM. Nanavati v. State of Maharashtra, AIR 1962 Supreme Court 605. Their Lordships dealing with Section 300 Exception 1 in the peculiar facts and circumstances of the case have held that mere fact that before the shooting, the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder and the facts did not attract the provisions of Exception 1 to Section 300 IPC. In Hari Ram v. State of Haryana, AIR 1983 Supreme Court 185, the facts of the case were that in the heat of altercation between the deceased on one hand and the accused on the other, the accused seized a jelli and thrust it into the chest of the deceased and it was preceded by his remark that the deceased must be beaten to make him behave and only one blow was struck by the accused at the deceased, the facts would make out an offence under the second part of Section 304 IPC and not under Section 302 IPC. In Radha Kishan v. State of Haryana, AIR 1987 Supreme Court 768, their Lordships found that the circumstances appearing in the case made it clear that the accused would not have intentionally shot the deceased with a view to bill him or even with a view to cause an injury which would be sufficient in the ordinary course of nature to cause death but must have shot the deceased either on account of some grave and sudden provocation or in the course of a sudden quarrel attracting Exception 1 or Exception 4 to Section 300 IPC. in the facts and circumstances of the case, conviction of the accused from Section 302 to under Section 304 Part 1 IPC was modified. In State of Punjab v. Tejinder Singh and another, AIR 1995 Supreme Court 2466, their Lordships on the facts of the case observed that if really the appellants had intended to commit murder, they would not have certainly used the blunt edge of the gandasas when the task could have been expedited and assured with the sharp edge. In State of Punjab v. Tejinder Singh and another, AIR 1995 Supreme Court 2466, their Lordships on the facts of the case observed that if really the appellants had intended to commit murder, they would not have certainly used the blunt edge of the gandasas when the task could have been expedited and assured with the sharp edge. Only one injury on the head was reported to be only muscle deep in the postmortem report and the other injuries were on non-vital parts of the body. Taking those facts into consideration, their Lordships held that the appellants had committed an offence under Section 304 IPC and not under Section 302 IPC for which the appellants were acquitted. In Rakesh Singh v. State of Himachal Pradesh and other connected matters, AIR 1996 Supreme Court 3173, their Lordships observed that the High Court was right in alerting the conviction from one under Section 302 to Section 304, Part II having regard to the fact that the death occurred after 24 hours of inflicting injury and also the type of weapon used for causing the injury. In those circumstances, their Lordships did not think that there was any case for further enhancing the sentence. 18. One can have possibly no quarrel with the established proposition of law in the above said judgments of the Honble Supreme Court. It is not in dispute in the present case that the accused had no motive or intention to cause death of the deceased. It is the clear and positive opinion of the Dr. D.P. Swami that the injury inflicted on the vital part of the body of the deceased was in the ordinary course of nature to cause his death immediately. The weapon of offence used by the accused was sharp edged weapon. The accused has not pleaded in his statement under Section 313 Cr.P.C. that he inflicted the grievous injury on grave and sudden provocation of the deceased. In Virsa Singh v. State of Punjab: AIR 1958 Supreme Court 465 it is held (Para 13 A.I.R. 467) (1.3) : "Once these four elements are established by the prosecution (and. of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. In Virsa Singh v. State of Punjab: AIR 1958 Supreme Court 465 it is held (Para 13 A.I.R. 467) (1.3) : "Once these four elements are established by the prosecution (and. of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the equity is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape" if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional," 19. In the light of the above proposition of law of the Apex Court, the offence committed by the accused does not fall under Exception 1 or Exception 4 to Section 300 IPC. 20. Section 105 of Indian Evidence Act, 1872 deals with the burden of proving that case of the accused comes within exceptions. It reads as under :- "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustrations (b) reads : "A accused of murder, alleges that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A". 21. Illustrations (b) reads : "A accused of murder, alleges that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A". 21. Under the above Section, the accused is required to discharge the onus even on the preponderance of probabilities. The accused in the present case has failed to discharge the burden. Therefore, the contention of learned Counsel that the offence of the accused falls within Exception 1 or Exception 4 to Section 300 I PC does not merit acceptance. 22. In the facts and circumstances of the case, the conviction and sentence imposed upon the accused by the learned trial Court does not call for interference. 23. No other point was urged before us by the learned Counsel for the parties. 24. In the result, there is no merit in this appeal and it is accordingly dismissed. -