JUDGMENT : 1. Heard argument and the judgment is as follows: 2. Accused Budhia and deceased Khalli admittedly related to each other as uncle and nephew. According to the case of the prosecution, the dispute between the accused and the deceased relates to a family partition about 20 years back and therefore, they were not tolerating each other. The occurrence took place in the night of 15/16.7.2000. A few days before that accused suffered from diarrhea and the family members in the house of the deceased undertook the treatment in the hospital. It is alleged that accused was carrying the belief that the deceased had applied sorcery to cause harm to him (the accused). According to the further case of the prosecution, accused was sleeping on the outer verandah of one Jagannath Behera and the deceased was sleeping on the outer verandah of his house and the informant, P.W.1, who is also the brother of the deceased was sleeping on the outer verandah of his house. The aforesaid place of sleep of the accused, deceased and P.W.1 are nearer to each other. At about 1.00 A.M. in the night on hearing the groaning sound, P.W.1 saw that the deceased was running away holding his neck and after going to certain distance, he fell down and at the time accused was chasing him holding a knife but like P.W.1 when the other witnesses, such as P.Ws.3, 4 and 8 saw the accused standing with a knife near the spot where the deceased was lying. A trekker was arranged to shift the deceased but by the time the Trekker came, the deceased had succumbed to the injury and therefore F.I.R., Ext.1 was lodged in Jarada Police Station and on the basis of that information" investigation was taken up. On completion of investigation, charge-sheet was submitted and the case was committed to the Court of Session. Charge was framed u/s 302, I.P.C. and accused denied to the charge and claimed for trial. 3. To substantiate the charge, prosecution examined as many as nine witnesses. Besides the above four witnesses, P.W.3 is the doctor, who conducted autopsy on the dead body of the deceased and proved the postmortem report, Ext.3 and the opinion report, Ext.4 about M.O. I being the possible weapon of offence. 3. To substantiate the charge, prosecution examined as many as nine witnesses. Besides the above four witnesses, P.W.3 is the doctor, who conducted autopsy on the dead body of the deceased and proved the postmortem report, Ext.3 and the opinion report, Ext.4 about M.O. I being the possible weapon of offence. P.W.9 is the Investigating Officer and P.W.3 is the witness to the seizure of the knife, M.O. I on being given discovery by the accused and seized under seizure list, Ext.5. P.W.5 is the witness to seizure of the bloodstained sample earth etc. under seizure list, Ext.6. P.W.6 is the Police Constable who accompanied and identified dead body of the deceased to the P.W.2. P.W.7 is a post occurrence witness and deposed nothing substantial. Accused did not adduce any defence evidence. 4. Learned Sessions Judge, on appreciation of the aforesaid evidence, recorded finding that the deceased suffered homicidal death. From the evidence of the aforesaid P.Ws.1, 3 and 4, he held that prosecution has proved that accused is the author of the injury. He rejected the argument of the accused to grant him benefit of doubt by rendering the aforesaid witnesses about the assault because none of them had seen the fact of actual stabbing. For is conviction u/s 302, I.P.C., learned Sessions Judge imposed the sentence of rigorous imprisonment for life. 5. While challenging the aforesaid order of conviction, learned Counsel for the Appellant argues that there being no eye witness to the occurrence, the evidence of the aforesaid four witnesses are not sufficient to fix the liability on the accused and therefore, the Appellant is entitled to benefit of doubt and be acquitted accordingly. He alternatively argued that if at all the aforesaid witnesses are believed, then keeping in view the background fact, Petitioner be found guilty for culpable homicide not amounting to murder and the conviction and sentence be modified accordingly learned Standing Counsel argues in support of the finding recorded by the learned Sessions Judge and also states that when the injury found on the dead body of the deceased was sufficient in ordinary course of nature to cause death of the deceased, conviction of the Petitioner u/s 302, I.P.C. be maintained. 6. We refer to the evidence of P.W.2 in which he has stated that: I found the following external injuries: 1. 6. We refer to the evidence of P.W.2 in which he has stated that: I found the following external injuries: 1. A stab wound of size 3 c.m. x 0.75 c.m. x deep structure of the neck situated on the left anterolateral aspect of neck at its root 6.5 c.m. below the lobule of the left ear. On dissection, the track of the stab wound after cutting the skin soft tissues of the neck and posterior boarder of left sterno-mastoid muscle at its middle part corresponding external injury No. 1, the wound extends to the right side of the neck on the front of vertebral column. It perforated the posterior wall of the laryngopharynx. Right side jugular vein was found cut with extra-vesation of blood and blood clots in the soft tissues and muscles of the right side of the neck. The respiratory tract was found to contain blood upto terminal bronchioles. Both the lungs were found enlarged and their cut sections exude blood-tinged fluid. Blood was also found in the food pipe and stomach. 2. All other internal organs were found in tact. 3. Opinions: 1. The injury described above was ante-mortem in nature and could have been caused by a pointed and cutting weapon. 2. Death was due to combined effects of shock and asphyxia resulting from injury to the major neck vessel (Jugular vein) and inhalation of blood into the respiratory tract. The aforesaid narration about the injury indicates that there was only one blow given by the knife. Opinion of P.W.2 and the finding of the trial Court of homicidal death of the deceased is not disputed at the Bar. Therefore, we accept that contention of the prosecution. 7. Evidence of P.W.1 indicates that he saw the deceased was running away catching hold of his neck and the accused holding a knife was chasing him. Other three witnesses viz. P.Ws.3, 4 and 8 have stated in their evidence that when they came out from the respective houses, they found the deceased was lying on the road and the accused holding a knife was standing at a little distance. Even if the aforesaid four witnesses did not see the actual manner of assault i.e. dealing the blow, but the aforesaid circumstance gives the telltale that none else than the accused, who inflicted that injury. Even if the aforesaid four witnesses did not see the actual manner of assault i.e. dealing the blow, but the aforesaid circumstance gives the telltale that none else than the accused, who inflicted that injury. Under such circumstance, the argument advanced by the Appellant to grant him benefit of doubt is not a sound contention to be accepted. On the other hand, we find that the trial Court has rightly appreciated such evidence to record the finding that accused dealt the blow which resulted in the death of the deceased. 8. Coming to the alternative argument advanced by the Appellant and the objection thereof by the learned Standing Counsel, we find that learned Sessions Judge did not divert his attention to the background fact as well as immediate cause for such an occurrence. In that respect the evidence of P.W.1 is very clear. It may be remembered that he is the brother of the deceased and nephew of the accused. He stated in his evidence that a few days before the date of occurrence, the accused suffered from diarrhea and the deceased family took initiative to provide treatment. At the same time, he stated that the accused suspected that the deceased applied sorcery to cause him (accused) to suffer in that manner. Under such circumstance, no clear evidence emerged on record to consider as to what was the immediate cause for the accused to deal the stab blow to the deceased and that too a single blow. Under such circumstance, the benefit arising out of that lack of evidence should go in favour of the accused and it can be validly presumed that an immediate dispute between the two in dead of the night resulted in the accused dealing the stab blow. In that event, even if the deceased suffered homicidal death, the offence be culpable homicide not amounting to murder, within the meaning of Exception 4 in Section 300, I.P.C. We take such a view and accordingly, set aside the order of conviction u/s 302, I.P.C. and modify it to conviction u/s 304, Part-I, I.P.C. Accordingly, we also set aside the sentence of imprisonment for life and impose a sentence of rigorous imprisonment for 8 (eight) years, inasmuch as, it is available on lower Court records that the accused was arrested on 21.07.2000 and all throughout he remained in jail. Apart from that, the accused was described to be 90 years old in the judgment of the trial Court. Accordingly, as stated above, we sentence the accused-Appellant to rigorous imprisonment for 8 (eight) years. Since the Appellant has already served the sentence of the aforesaid period, he be set at liberty forthwith unless his detention in jail custody is required in connection with any other criminal case. The Jail Criminal Appeal is allowed in-part in the manner indicated above. Final Result : Allowed