JUDGMENT By Court: This appeal is directed against the judgment of conviction and order of sentence dated 4.3.2003 passed by the 9th Additional Sessions Judge, Hazaribagh in Sessions Trial No.314 of 1995 whereby learned Additional Sessions Judge having found the appellant guilty for the offence under section 302 of the Indian Penal Code for committing murder of Daso Bedia sentenced him to undergo imprisonment for life as well as to pay a fine of Rs.1000/-and in default to undergo imprisonment for two months. The case of the prosecution is that the informant, Ram Prasad Sahu (P.W.1) while was in his house on 28.9.1994, came out of the house on hearing hulla at about 8.30 P.M. and saw the appellant, having knife in his hand, fleeing away from there. When he proceeded ahead and came near the house of Mahabir Rajak, he heard his servant Daso Bedia (deceased) shouting that the appellant has stabbed him. Immediately he noticed Daso Bedia under the pool of blood who was having injury over his abdomen. Meanwhile, villagers assembled there who after making arrangement were about to take the deceased succumbed to his injuries. from the people assembled there that injured to Hospital but the The informant could know just before, there had been verbal altercation in between the appellant and the deceased at the house of Agnu Rajak (P.W.2) where they had come to enjoy dancing and music programme arranged on the occasion of Jitia festival. On the next day, the informant Ram Prasad Sahu (P.W.1) gave his Fardbeyan (Ext.1) at about 8.15 P.M. before the Gola Police Station, upon which formal First Information Report (Ext.4) was drawn and the case was instituted under section 302 of the Indian Penal Code against the appellant. Thereupon, Birendra Prasad Yadav (P.W.8) the then Officer-in-Charge of Gola Police Station took up the investigation and came to the place of occurrence where he held inquest on the dead body and prepared inquest report (Ext.5) and sent the dead body for post mortem examination. Dr. Arun Kumar Mandal on holding autopsy did find the following injuries on the person of the deceased. “ Stab wound 3 x 2 cm. x cavity deep on left chest back situated 12 cm. left to mid lime. The weapon passes through left tenth inter costal space and inters into small intestine and mesentry”. Dr. Arun Kumar Mandal on holding autopsy did find the following injuries on the person of the deceased. “ Stab wound 3 x 2 cm. x cavity deep on left chest back situated 12 cm. left to mid lime. The weapon passes through left tenth inter costal space and inters into small intestine and mesentry”. In course of investigation, Birendra Prasad Yadav (P.W.8) the Investigating Officer recorded the statements of the witnesses and in that course, he got the statement of Agnu Rajak (P.W.2) also recorded under section 164 of the Code of Criminal Procedure. Subsequently, investigation of the case was taken over by Raj Nand Singh (P.W.9), who submitted charge sheet, upon which cognizance of the offence was taken. On committal of the case, when the charges were framed, the appellant pleaded not guilty and claimed to be tried. The prosecution in order to prove its case examined as many as 10 witnesses . Of them, P.W.1, Ram Prasad Sahu, the informant claimed to have seen the accused fleeing away after committing murder and also heard the deceased saying that he has been stabbed by the appellant . P.W.2 Agnu Rajak is the witness in whose house altercation took place in between the deceased and the appellant when both of them had come to enjoy dancing and music programme arranged on the occasion of Jitia festival. P.W.3, Kamal Krishna Sinha, a Magistrate who had recorded the statement of P.W.2 under section 164 of the Code of Criminal Procedure. P.W.4, Bhudeo Prasad Sao claimed to have heard people, who had assembled near the dead body, saying that it was the appellant, who committed murder. P.Ws. 5, 6 and 7 did not support the case of the prosecution and hence, they have been declared hostile. P.W.10, Dr. Shamboo Soren, in the event of death Dr.Arun Kumar, who had held autopsy, has proved the post mortem examination report as Ext.6. The trial court on the basis of evidences adduced on behalf of the prosecution did find the appellant guilty for committing murder of the deceased and hence, recorded the order of conviction and sentence as aforesaid. Being aggrieved with the judgment of conviction and order of sentence, the appellant has preferred this appeal for bail. The trial court on the basis of evidences adduced on behalf of the prosecution did find the appellant guilty for committing murder of the deceased and hence, recorded the order of conviction and sentence as aforesaid. Being aggrieved with the judgment of conviction and order of sentence, the appellant has preferred this appeal for bail. Learned counsel appearing for the appellant, who was appointed as Amicus curiae submitted that though the appellant has been alleged to have inflicted knife injury upon the deceased but the injury never seems to have been inflicted with the intention to commit murder as whatever happened that seems to have happened in course of altercation in between the deceased and the appellant and, therefore, the trial court committed an error in recording the order of conviction and sentence under section 302 of the Indian Penal Code and, hence, it is fit to be set aside. Heard learned counsel appearing for the State. Having heard learned counsel appearing for the parties and on perusal of the record, we do find the informant Ram Prasad Sahu (P.W.1) to be the most important witness. According to him, while he was in his house on 28.9.1994, he came out with torch light on hearing hulla and saw his servant Daso Bedia lying under pool of blood, who was having injury on his abdomen and was shouting that he has been stabbed by the appellant. Meanwhile, he saw the appellant who was having knife in his hand fleeing away. After a while, villagers assembled there from whom he could know that the appellant just now had had altercation with the deceased in the courtyard of Agnu Rajak (P.W.2) while they had come to enjoy dancing and music programme arranged on the occasion of Jitia which fact gets corroboration from the evidence of P.W.2. Nothing has been elicited by the defence to even create a slightest doubt on the testimony of P.W.1. Moreover, testimony of P.W.1 gets corroboration from the medical evidence. Under these circumstances, the trial court has rightly come to the conclusion that it was none other than the appellant, who inflicted injury on the abdomen of the deceased resulting into his death but the question is as to whether, in the facts and circumstances of the case, the trial court is justified in convicting the appellant under section 302 of the Indian Penal Code ?. As we have noticed above that on hearing hulla, when the informant as well as villagers came to the place of occurrence, Ram Prasad Sahu, P.W.1 did find the deceased lying on the ground under the pool of blood where he came to know from the villagers including Agnu Rajak (P.W.2) that just before the occurrence there had been altercation in between the appellant and the deceased. Keeping in view this fact and taking into consideration that only one injury had been inflicted upon the deceased, it does emerge that accused gave fatal blow without pre-meditation in a sudden fight in the hit of passion and that apart, there appears to be no evidence that the accused took any undue advantage or acted in a cruel or unusual manner but merely gave one knife blow 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, the case certainly falls within the exception 4 to section 300 of the Indian Penal Code and therefore, the judgment of conviction and order of sentence recorded under section 302 of the Indian Penal Code by the learned trial court is hereby set aside and in stead of that he is held guilt under section 304 part II of the Indian Penal Code. Consequently, the order of sentence of life imprisonment is reduced to the period of custody already undergone. The appellant is directed to be released forthwith if not wanted in any other case. With the aforesaid modification in the order of conviction and sentence, this appeal stands dismissed.