JUDGMENT 1. 1. The appellant was indicted before the learned Sessions Judge 1 Jodhpur for having committed murder of Pappu alias Chhotelal in Sessions Case No. 105/1999. The learned Sessions Judge vide judgment dated February 7, 2001 convicted and sentenced the appellant under Section 302 IPC to undergo imprisonment for life and a fine of Rs. 1000/-, in default to 5 further suffer one month simple imprisonment. 2. The appellant, at the trial was charged for having inflicted a blow with knife on the neck of the deceased. Dead body was subjected to autopsy by Dr. N.S. Kothari (PW. 20) and according to the post mortem report (Ex.P/16) the deceased sustained following ante-mortem injuries : (1) Incised wound (Sta b) 3.0 cm X 1.0 cm on lower part of neck anteriorly just near to medial end of right clavicle, places oblique directed towards left side with clotted blood around it. There is clotted blood over chest and abdomen. (2) Abrasion 1.0 cm X0.5 cm upper part of right leg anteriorly. (3) Abrasion 1.5 cm. X1.0 cm. left heel. (4) Lacerated wound 3.0 cm. X 1.0 cm. X skin deep on left big toe. On dissection of injury No. 1 The stab wound directed left side just above clavicle runs oblique and backward cutting the muscles (sterio-mastoid), nerve and carotid artery and jugular veins and scalenus muscles. The tissue surrounds the wound and stain with blood and clotted blood around the trachea and below clavicle." The cause of death was shock and haemorrhage due to cutting of 5 carotid artery and Jugular veins left side of neck as a result of stab wound. 3. The evidence of eye witnesses namely Praveen Kant (PW. 3), Prem Prakash (PW. 11) and Ganesh Singh (PW. 12) is cogent and trustworthy and corroborated by medical evidence, therefore the findings of the learned trial court has not been assailed on merit before us. The only contention of Mr. to M.D. Purohit, learned senior counsel is that evidence adduced at the trial demonstrates that the incident occurred all of a sudden, on a spur of moment and the appellant did not take undue advantage of the situation, He is alleged to have caused only one injury and did not repeat it. Attack by the appellant was not premeditated as there was no bad blood between the 15 deceased and the appellant. Attack by the appellant was not premeditated as there was no bad blood between the 15 deceased and the appellant. There was no intention on he part of the appellant to kill the deceased and the case does not travel section 304 Part II IPC. Reliance is placed on Mohan Singh v. State Rajasthan, 2001(3) WLC 373 and Pokar Ram v. State of Rajasthan, 2001 (1) R.Cr.D. 89 (Raj.) . 4. Per contra, Mr. Mahipal Bishnoi, learned PP supported the impugned judgment and canvassed that intention of the appellant can be gathered from his conduct as after inflicting the blow, he had stated that he achieved his object. 5. We have pondered over the rival submissions and scanned the 25 material on record. 6. Turning on to the point of nature of offence, it is evident from the testimony of Ganesh Singh and Praveen Kant that after sustaining injury, Pappu remained conscious and till he reached the hospital he was in a position to speak. The incident occurred all of a sudden and there is nothing 30 on record to show that there was any previous enmity between the deceased and the appellant. The appellant is alleged to have inflicted a single blow and fled away. He could repeat the infliction of blow but he did not. Neither did he act in a cruel manner nor took undue advantage of situation. We find that element of intention is missing and it can be inferred that appellant had 35 knowledge that the injury which he was going to inflict could likely to cause death. 7. In Mohan Singh v. The State of Rajasthan (supra) in a similar situation, the Division Bench of this court observed that when the accused did not act in a cruel manner and blow was not repeated, the accused was 4o liable to be convicted under Section 304 Part II IPC. In that case, single blow was inflicted on the head of the deceased with axe and in the opinion of the doctor, deceased died due to pro-fused bleeding from the wound. The doctor also stated that cause of death was clotting of blood in the skull and injury to temporal bone. 8. In that case, single blow was inflicted on the head of the deceased with axe and in the opinion of the doctor, deceased died due to pro-fused bleeding from the wound. The doctor also stated that cause of death was clotting of blood in the skull and injury to temporal bone. 8. In yet another case of Pokar Ram v. State of Rajasthan (supra) the Division Bench of this Court observed that where incident had taken place all of a sudden, there was no previous enmity, the accused did not act in a cruel manner, inflicted only one punctured wound on right side of neck above right collar bone, resulting in rupture of right external carotid cutting at the 50 horizontal level of wound and also there was laceration of right external jugular vein and the small muscles of neck right side were also teared at place trachea at the level 1/2" below was also ruptured and clotted blood present around would the accused was liable to be convicted under section 304 Part II IPC. 9. Considering the peculiar facts and circumstances of the instant case and keeping in view the of the Office, we hold that present case does not travel beyond section 304 Prat II IPC. 10. For the reasons aforementioned, we party allow the appeal. While modifying the impugned judgment, we convict the appellant under section 304 Part II of the Indian Penal Code and set aside his conviction under section 302 IPC. The appellant is in jail since July 10, 1997 and the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant shall be set at liberty forthwith, if not required to be detained in any other case. The impugned judgment stand modified as indicated above.Appeal Partly Allowed. *******