Hon'ble GOMBER, J.—This judgment will dispose of the aforementioned appeals preferred by the State of Rajasthan as well as by the accused appellant against the judgment and order dated 5.8.1981 passed by the learned Sessions Judge, Alwar in the matter of FIR No. 508/1980 of P.S. Kotwali (Alwar) (Ex. P/1) in sessions case No. 20/1981. 2. Accused Brijesh Kumar @ Dabboo along with Jitendra Kumar and Brijendra Kumar @ Shyam, had been set up for trial in the first instance. 3. Vide judgment dated 5.8.1981 in Sessions case No. 20/1981, learned Sessions Judge, Alwar acquitted all the three accused from offences under Sections 302, 302/34 & 449 IPC. However, accused Brijendra @ Shyam and Jitendra were found guilty under Section 323 IPC but were granted benefit of probation of offenders Act; whereas accused-appellant Brijesh @ Dabboo was found guilty under Sec. 304 Part I IPC and was sentenced to six years' rigorous imprisonment along with fine of Rs. 1,000/- in default whereof he was ordered to undergo additional simple imprisonment for a period of six months. He was acquitted of the offence under Sec. 324 IPC as well. 4. Accused Brijesh @ Dabboo, being aggrieved by the said judgment and order, has challenged the judgment on various grounds by way of appeal No. 401/81; whereas the State Government being aggrieved by the order of acquittal of all the accused from the charges leveled against them i.e. under Sections 302, 302/34, & 449 IPC filed leave to appeal challenging the impugned judgment & order and sought modification of sentence against all the three accused. Leave to appeal granted against all the three vide order dated 16.12.1982 was registered as appeal No. 07/83. 5. The facts as culled out by the prosecution are that PW.1 Rajkapoor lodged an oral report Ex. P/1 on 21.12.80 narrating that on the day of occurrence, he returned home at about 7.00 pm and came to know that his wife Anila's younger brothers' Tipu & Nitu visited his house in the afternoon at about 4'o clock to meet their sister. P/1 on 21.12.80 narrating that on the day of occurrence, he returned home at about 7.00 pm and came to know that his wife Anila's younger brothers' Tipu & Nitu visited his house in the afternoon at about 4'o clock to meet their sister. He further narrated that the same morning, his wife Anila and his mother Mohini PW.7 had some altercation on a trivial issue of washing of quilt cover spoiled by the Poo (toilet) of her child and that when he returned home, he was also told by his parents that three respondents namely Brijesh @ Dabboo, Jitendra and Brijendra @ Shyam had come to their house and quarreled with his father showing shoes, but on the intervention of the people of vicinity they left threatening that they will come back and see them. Further he alleged that as soon as he reached home, he went to the toilet situated at first floor of the building and was washing his hands. It is at that time that Brijendra @ Shyam, Jitendra and Brijesh @ Dabboo came laced with knife, axe and `Danda' and shouted at him. He told them to behave properly whereupon Brijesh @ Dabboo put knife on his throat threatening him for his life. On this he slapped his brother-in-law Brijesh, to which all the three reached by chasing him to the second floor of the building, where he ran for rescue. His wife Anila asked her brothers to leave else she would commit suicide. His family members i.e. parents brothers and sister who tried to stop them who were also assaulted. Brijesh inflicted a knife blow in the chest of his brother Shammi Kapoor and Jitendra, besides giving a `danda' blow on his mother's head, also made a teeth bite on his right hand wrist and tore his clothes. After the knife injury Shammi Kapoor fell on the floor and he, being scared, went to the police station to lodge the report and inform about his brother's murder. 6. He further alleged to have lent a sum of Rs. 1000/- to his in-laws for their needs which was not returned. In the same manner Rs. 600-700 given at the time of death of his grand father were also not accounted for by them. Further that the jewellery, given in his marriage, had also been kept by them. 6. He further alleged to have lent a sum of Rs. 1000/- to his in-laws for their needs which was not returned. In the same manner Rs. 600-700 given at the time of death of his grand father were also not accounted for by them. Further that the jewellery, given in his marriage, had also been kept by them. He apprehended that his wife Anila might have told Tipu and Nitu about the altercation with her mother-in-law on the same morning and that is why the brothers came. Jitendra, Brijesh @ Dabboo and Brijendra @ Shyam came to fight and kill his brother Shammi Kapoor. He claimed that besides Chauthmal who was a tenant in the building, other neighbors i.e. Gopaldas, Harish and Chagan had seen the accused persons. 7. On this report, case under Sec. 302, 302/34 and 449 IPC was registered and after completion of investigation, charge-sheet against all the three accused was filed before the concerned Magistrate. On committal, the charges under Sec. 449, 302 read with 34 and 323 IPC were read over to Brijendra @ Shyam and Jitendra whereas accused Brijesh @ Dabboo was read over the charge under Sec. 449, 302 ad 324 IPC. 8. In order to prove its case, the prosecution examined in all 14 witnesses. Out of whom, PW.1 Rajkapoor, PW.2 Bhagwan Sahai, PW.7 Mohini Devi, PW.8 Sunita Kumari are the family members. They happen to be the informant's father, mother, sister and brother respectively. PW.3 Hukum Chand, PW.4 Hari Singh, PW.5 Kishorilal, and PW.6 Sohanlal are the formal witnesses with regard to the link evidence. PW.10 Gopaldas, PW.11 Harish Chandra and PW.13 Chauthram, stated to be the neighbours witnessing the occurrence, have been declared hostile; whereas PW.12 Dr.P.S. Agarwal is a Medico Legal Expert and PW.14 Inderkumar is an Investigating Officer. 9. In all 24 documents were exhibited in the form of documentary evidence being Ex.P/1 FIR, Ex. P/2 site plan, Ex. P/3 injury report of PW.1 Rajkapoor, Ex.P/4 Pancha-nama corpse, Ex. P/5 recovery memo of article 2 axe, Ex. P/6 previous statements of PW-10 Gopaldas. Ex. P/7 & P/8 are the blood stains collected from two places in the house of complainant. Ex.P/9 seizure memo of blood stained quilt cover Art. 4, Ex. P/3, Ex. P/10 and Ex. P/12 are injury reports of PW-1 Raj Kapoor, PW.7 Mohini and PW.8 Sunita, Ex. P/6 previous statements of PW-10 Gopaldas. Ex. P/7 & P/8 are the blood stains collected from two places in the house of complainant. Ex.P/9 seizure memo of blood stained quilt cover Art. 4, Ex. P/3, Ex. P/10 and Ex. P/12 are injury reports of PW-1 Raj Kapoor, PW.7 Mohini and PW.8 Sunita, Ex. P/11 injury report of accused Brijendra @ Shyam, Ex. P/13 post mortem report of deceased Shammi Kappor, Ex. P/14 previous statement of Chauthmal, Ex. P/15 to Ex. P/17 are the arrest memos of accused Brijesh, Jitendra, and Brijendra, respectively, Ex. P/18, Ex. P/20 and Ex. P/22 are the informations under Section 27 of the Evidence Act given by Jitendra, Brijendra and Brijesh respectively, with regard to recovery of weapons of offence. Ex. P/19 seizure memo of "Danda Dhoke" article-1 recovered at the instance of accused Jitendra, and Ex. P/21 seizure memo of knife recovered at the instance of Brijesh, Ex.P/23 is FSL report with regard to the articles and Ex.P/24 is the Serologist's report. 10. In the back drop of aforesaid prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. wherein accused Jitendra took a plea of alibi and showed ignorance about the incident. He, however, admitted his arrest but denied any recovery. He also explained that on account of this incident only, relations of the two families became strained and it is for this reason that the witnesses deposed falsely. Brijesh and Brijendra also admitted their arrest but denied any recovery at their instance and also filed their written statements. They examined their sister Anila, the wife of complainant as DW-1. 11. In their written statements, accused Brijesh and Brijendra submitted that on the evening of 21.12.80, on their reaching home, they were told by their mother that their younger brothers Nitu and Tipu had gone to Anila's house in the afternoon and that she was found quite upset. Their mother asked them to go to her in-laws' house to find out as to why Anila was upset and on their mother's asking, they went to their sister's house where, besides their sister, all the family members i.e. Bhagwan Sahai, Mohini, Shammi Kapoor, Shashi Kapoor, Sunita and young children were present. On their asking the sister about the reason of her being upset, PW.2 Bhagwan Sahai got provoked and started abusing them. On their asking the sister about the reason of her being upset, PW.2 Bhagwan Sahai got provoked and started abusing them. There was an exchange of hot words bet-ween them, and their sister told them to leave else she would commit suicide. During the altercation, Bhagwan Sahai took a `Hathodi' and tried to inflict injury on the head of Brijendra whereas Shammi Kapoor brought their kitchen knife and tried to assault Brijendra. There was a scuffle between Brijesh and Shammi Kapoor and in that, while trying to snatch knife from him, injury was inflicted on him. He further deposed that he and his brother Brijendra had gone to meet their sister and they were not laced with any weapons and whatever happened, it happened all of sudden. Besides his father's affidavit, he also filed his Board of Secondary School Examination Mark-sheet of 1980 showing that his date of birth as per school record was 24.12.63 and thus he was about 17 years old at the time of incident. 12. Accused Brijendra also gave his written statement to the effect that whatever happened had happened all of sudden during the exchange of hot words. He and his brother were sent by their mother to find out as to why their sister was upset whereupon Bhagwan Sahai got annoyed and assaulted him with `Hathodi' whereas Shammi Kapoor brought Kitchen Knife and it was during that scuffle between him and Brijesh while snatching the knife from Shammi Kapoor that the injury was inflicted on the chest of deceased Shammi Kapoor. They neither went to fought nor were they laced with weapons but had gone to their sister to find out as to why was she upset and then in a sudden quarrel the incident took place. 13. DW-1 Anila, although shown as prosecution witness, was not examined. She supported the defence version stating that the same after-noon her younger brothers Nitu and Tipu had come to see her. She being upset did not talk to them properly who went back. In the evening at about 7.00 pm while she her mother-in-law, father-in-law, sister-in-law, husband and brother-in-law were sitting in the room at second floor of their building, her two brothers Brijesh and Brijendra came and tried to ask her as to why she was upset that day whereupon her husband got angry and there was an altercation between them. In the evening at about 7.00 pm while she her mother-in-law, father-in-law, sister-in-law, husband and brother-in-law were sitting in the room at second floor of their building, her two brothers Brijesh and Brijendra came and tried to ask her as to why she was upset that day whereupon her husband got angry and there was an altercation between them. She told her brothers to leave else she would commit suicide. Saying this, she came down to her room on the first floor. After a while, she heard the noise that Shammi Kapoor sustained a knife injury and she, being scared, left her matrimonial home and went to her father's house. She stated that article -3 knife was the knife which was used in their kitchen in her in-laws' house. 14. In her cross-examination, she stated that she along with her husband used to live with the entire family in that house and the relation-ship between her parents and her in-laws were normal. After the incident, she started living with her parents. She admitted that her younger brothers had come to see her in the afternoon. According to her, the brothers used to come to her house and that even two days before the incident her brother had taken her to her parents house. She denied her brothers' coming at 6.00 pm or indulging in any quarrel with her father-in-law at his shop situated in the same building on the ground floor. She also denied her brothers' coming armed with weapons and inflicting injuries on the persons of her matrimonial family. To a suggestion given about the knife she denied that Art-3 was not a normal knife or that it was not used in their kitchen. She admitted Art-3 being without a wooden handle. 15. We have heard the learned counsel for the parties and have perused the entire record including the impugned judgment. We have also gone through the case law cited by the parties. 16. After hearing both the parties and perusing the record, we find that the learned Trial Judge has not appreciated the evidence properly and has not looked into the circumstances of the case in totality as well as in the light of version given in the FIR. The circumstances here were peculiar as the accused are the real brothers-in-law of the information and that the relations between the two families were normal before the incident. The circumstances here were peculiar as the accused are the real brothers-in-law of the information and that the relations between the two families were normal before the incident. Further that their sister was married only 2-1/2 years before the incident and as per PW.1 Rajkapoor himself (who is the husband of Anila and brother-in-law of all the three accused) there was no peace in his house and for that reason, he had separated from his parents earlier but came back about 8 months before the incident and started living with his family. It has not come on record as to what was his profession and in what circumstances, after separating himself from his parents' family, he came back to live with them. The facts & circumstances of the case in hand are not the facts of any other criminal case. It is not a natural conduct of any brother to carry weapons while going to the sister's house specially when the sister is married only 2-1/2 years before the incident and when there have admittedly not been major issues amongst the two families. 17. As stated in FIR Ex. P/1, there was some altercation between informant's wife and mother with regard to the issue of washing of quilt cover spoiled by their child's nature's call. It is an admitted fact that in the afternoon, his two younger brothers-in-law named Tipu and Nitu had come to see their sister and after meeting her, they left. 18. Now the question that arises is as to whether the prosecution has been able to prove that an hour before the incident, the three accused had come to the cycle repair shop of PW.2 Bhagwan Sahai (father of informant) and quarrelled with him and whether on the neighbours and other vicinity people coming, they left threatening to come back and see them. 19. As regards this 6.00 pm incident, the prosecution has not examined any independent witness. In FIR Ex.P/1 although the words written were as under: ^^ekSgYys ds dkQh vkneh bdV~Bs gks x, fQj ;g rhuksa ;g dg dj pys x;s fd ge okfil vkdj rqe lcdks ns[k ysaxsA** But there is not a single independent witness of this incident of 6.00 pm except the family members. In FIR Ex.P/1 although the words written were as under: ^^ekSgYys ds dkQh vkneh bdV~Bs gks x, fQj ;g rhuksa ;g dg dj pys x;s fd ge okfil vkdj rqe lcdks ns[k ysaxsA** But there is not a single independent witness of this incident of 6.00 pm except the family members. As per version given in the FIR, all the three accused had come at 6.00 pm to the house of informant whereas during their statements, they have mentioned that the three accused had come at 6.00 pm at the cycle shop of PW.2 Bhagwan Sahai and that the shop was situated on the ground floor of the building and PW.7 Mohini Devi and PW.8 Sunita had gone to bring water from the ground floor and, therefore, they came to know about the 6.00 pm incident. 20. Strangely PW.7 Mohini Devi claims to have seen the 6.00 pm incident as she had gone to bring water from the ground floor with her daughter. During her cross-examination, she was confronted with her previous statements Ex. D/3 wherein the fact of her going on the ground floor to bring water, the fact of her daughter-in-law quarrelling with her or the issue of washing of quilt cover or the fact of Brijesh @ Dabboo, showing shoe to her husband, were missing. She could not explain the reason as to why these facts were missing in her previous statements. According to her, PW.10 Gopaldas and PW.11 Harish Chandra had seen the occurrence at 6.00 pm and that they pacified them. She also stated that 10-12 more persons witnessed the incident but she could not recognize them and that she had informed her son about the incident of 6.00 pm. But this fact also is not mentioned in her previous statement Ex. D/3. She admitted that they were using coal for cooking and for breaking the coal, they had a `Hathodi' but that `Hathodi' according to her used to be kept at the ground floor and not in the kitchen. She admitted that in her husband's cycle shop `hathodi' etc. were used. 21. PW.8 Sunita talks about the incident at 6.00 pm and admits that infront of his father's shop as well as on the right and left side, there were many shops. She admitted that in her husband's cycle shop `hathodi' etc. were used. 21. PW.8 Sunita talks about the incident at 6.00 pm and admits that infront of his father's shop as well as on the right and left side, there were many shops. She admitted in her cross-examination that from their house on the second floor, the person standing on the shop could not be seen. Strangely PW.8 Sunita has not corroborated this story of 6.00 pm which is said to have taken place in the shop as per statement of PW.7 Mohini Devi and in the house as per FIR Ex. P/1. 22. PW.1 Rajkapoor admittedly is not the witness of incident of 6.00 pm and has lodged the FIR on the basis of information given by his mother and father. PW.2 Bhagwan Sahai deposed that at 6.00 pm all the three accused had come to his shop and abused him and he asked them as to what was the matter. After sometime, they went saying that they will come back and see them. They had asked him as to why they were torturing their sister and showed the shoe and went away. According to him, he closed the shop at 6.30 pm and went upstairs and asked his wife as to what was the issue relating to the washing of Poo (toilet) of the child and her wife informed about the altercation between her daughter-in-law and her son. 23. During his cross-examination, he admitted that his son was married 2-1/2 years ago with Anila and that there was no enmity or strained relationship between the two families before the date of incident, and on that day also, there was no issue except that in the morning, his daughter-in-law and his wife had altercation on the issue of washing of quilt cover stained with the Poo of the child. According to him, at the time of incident of 6.00 pm, many people assembled. There were shops on his right, left and front but the gold-smith shop had closed on that day at 5.00 pm. He admitted Moolchand and Gopal living in his neighbourhood. According to him, besides the neighbours, there were other people passing through that lane. He, for sure, knew that Harish, Chandra, Shankarlal and Gopaldas etc had witnessed the incident but neighbours Motilal, Ram Singh and Ramswaroop were not there. 24. He admitted Moolchand and Gopal living in his neighbourhood. According to him, besides the neighbours, there were other people passing through that lane. He, for sure, knew that Harish, Chandra, Shankarlal and Gopaldas etc had witnessed the incident but neighbours Motilal, Ram Singh and Ramswaroop were not there. 24. As regards the alleged incident of 6.00 pm taking place at the shop of Bhagwan Sahai, there is no independent witness. PW.1 Rajkapoor's evidence is hearsay as he claimed to have been informed about the 6.00 pm incident by his parents. PW.8 Sunita also did not say that she had gone downstairs to bring water with her mother; whereas PW.7 Mohini Devi claimed that both had gone to bring water at 6.00 pm and at that time, these people had come to her husband's shop. PW.10 Gopaldas and PW.11 Harishchandra are stated to be the eye witnesses and intervenors for pacifying the accused at 6.00 pm in the shop but they have not stated a single word about the incident allegedly taking place at 6.00 pm in the shop of Bhagwan Sahai. Even no question was put to them in their cross-examination. Harish Chandra PW.10 was declared hostile but PW.11 although a neighbour, also did not whisper about the incident taking place at 6.00 pm at the shop of Bhagwan Sahai. He only deposed about hearing of some noise from Bhagwan Sahai's house at 7.00-7.30 pm and he claims to have been 2-3 boys coming out of the stair case of Bhagwan Sahai's building. PW.2, however claimed that about 100 people had assembled at the time of incident at 6.00 pm but none was produced, even neighbours named by him also were not produced. 25. In these circumstances, we find that no such incident is proved to have taken place at 6.00 pm. 26. Now we appreciate the evidence with regard to the main incident. As Per PW.12 Dr. P.S. Agarwal, he conducted post mortem examination of deceased Shammi Kapoor on 22.12.80 at 10.30 am and found following injuries as shown in Ex. P.13. "Ext. Injuries: (i) Stab wound 1-3/4 cm 3/4 cm x cavity deep longitudinal on chest just on u/z to mid line and 2 cm below the level of nipple line with direction producing inward and slightly upward, spinal shaped and clear cut edge. P.13. "Ext. Injuries: (i) Stab wound 1-3/4 cm 3/4 cm x cavity deep longitudinal on chest just on u/z to mid line and 2 cm below the level of nipple line with direction producing inward and slightly upward, spinal shaped and clear cut edge. Internal injuries on opening of body: (i) sub cut & muscular blood clots on sternum with a cut in the sternum under the external injury; with a cut in pericardium which is full of blood clots and blood; with cut in the vertical upper part and in arch of Aortic." 27. The cause of death, according to him, was stab wound in chest with a cut in pericardium of heard with haemorrhage and shock. Injury was ante mortem in nature. 28. In his cross-examination, he admitted that the injury could be caused by Art. 3 knife. 29. In the opinion of the doctor, the injury on the person of the deceased could be possible by the knife Art. 3 allegedly recovered at the instance of the appellant. 30. It is worth nothing that the knife Art. 3 is said to have been recovered from the drain running in the ground floor of complainant and the recoveries of weapons have been disbelieved by the learned trial Judge. 31. The question whether the appellant intended to cause death or cause bodily injury to the deceased or he did not intend either, has to be seen in the totality of the events and circumstances. 32. Ex. P/23 FSL and Ex. P/24 Serologist's report confirm the presence of human blood on the articles seized which were clothes of deceased, bushirt of accused Brijesh and knife stained with blood but no blood grouping could be determined because of disintegration and there being not sufficient blood on knife and liquid blood collected from the place of occurrence. 33. Now when we look at the natural conduct and circumstance of the case, as observed supra, it is beyond anybody's imagination that brothers who come to the sister's house would come laced with axe, knife and `danda' specially when the relations between the two families were cordial. Visit of younger brothers i.e. Nitu and Tipu to meet their sister in the day time, is established from the evidence of all the witnesses of family except PW.1 Rajkapoor who claims to have been informed by the mother about their visit in the day time. Visit of younger brothers i.e. Nitu and Tipu to meet their sister in the day time, is established from the evidence of all the witnesses of family except PW.1 Rajkapoor who claims to have been informed by the mother about their visit in the day time. The accused also admits that two younger brothers had come to meet their sister in the afternoon. 34. PW.1 Rajkapoor, PW.2 Bhagwan Sahai and PW.7 Mohini Devi were confronted with their previous statements being Ex.D/1, D/2 and D/3 whereas PW.1 Rajkapoor was confronted with Ex.P/1. They could not explain the contradictions and event discrepancies amongst themselves. 35. On the basis of discussion made herein above, we find that the version of the accused given by them in their written statement appears to be more probable as compared to the version given in the FIR Ex. P/1. 36. Since the State, also, has preferred appeal against all the three accused, we would deal with the link evidence of the case. Articles-1 `danda' has been specifically stated to be not the same as was allegedly used by the accused. In the same manner, the recovery of axe, article-2 cannot be said to be proved because PW.6 Sohanlal who is the witness of recovery memo Ex.P/5 although admitted his signatures, denied that any axe was recovered in his presence at the instance of accused Brijendra @ Shyam. According to him, Article -2 `axe' shown to him in the Court, was lying on the table in police station Kotwali and that he was asked to sign Ex.P/5. 37. In his cross-examination, looking at the axe Article-2, he stated that the axe appears to have not been used for a long time. He was not sure whether PW.2 Bhagwan Sahai had given the `Bainsa' (the wooden handle) of axe to the police or not but he saw that lying on the table in the police station. He did not know as to who brought that there. 38. He was not sure whether PW.2 Bhagwan Sahai had given the `Bainsa' (the wooden handle) of axe to the police or not but he saw that lying on the table in the police station. He did not know as to who brought that there. 38. PW.5 Kishorilal, Head Mohrir of Malkhana, who had been given `axe' and `danda' by Hari Singh to be kept in the Malkhana and who had the article sent through Hukam Chand for FSL, also stated in his cross-examination that the `axe' Art. 2 present in the Court did not appear to have been used for a long time as it was rested and that Art. 2 "Bainsa Axe" looked like "Hathodi Bainsa" (Wooden handle of `Hathodi'). 39. PW.4 Hari Singh, Head-constable and Malkhana Incharge on the date of incident, has deposed about the handing over of five sealed packets and `Danda' on 21.12.80 and thereafter an unsealed `axe' on 5.1.81 by SHO for depositing in the Malkhana. In his cross-examination, he could not say that `axe' Art. 2 had been used or not but he had not seen such a `Bainsa' with an `axe' . According to him, `Bainsa' Art. 2 looked like the `Bainsa of a small Hathodi.' 40. We have gone through the findings of learned Trial Judge in this regard and we find that the learned trial Judge has also disbelieved the recoveries because the knife Art. 3 is said to have been recovered from the drain running in the ground floor of complainant. In sub-para (2) of para 17 of the judgment, we find the observation of learned Trial Judge that prosecution has not been able to establish the recoveries of weapons and that they appear to be doubtful. The eye witnesses of the prosecution have also stated that Art. 1 `danda', Art. 2 `axe' were not the weapons which were alleged to be in the hands of the accused at the time of commission of crime. 41. From the analysis of the evidence, it is clear that all the family members tried to cook a story of incident of 6.00 pm in order to establish the motive/intention for commission of crime which is found to have not been proved. 42. We are satisfied that the evidence on record has been misinterpreted and misread to draw incorrect conclusions by the learned trial Judge. 43. 42. We are satisfied that the evidence on record has been misinterpreted and misread to draw incorrect conclusions by the learned trial Judge. 43. It cannot be said that the prosecution has successfully established that the appellant had intended to cause bodily injury to the deceased. 44. Under the circumstances, we are of the opinion that the facts of the instant case as also the circumstances noted by us, unfortunately proved by the learned Trial Judge, do not make out a case under Section 304 Part I IPC. 45. The picture that emerges is that the brothers were sent by their mother to know the reason of their sister's being upset and on their asking, the husband and father-in-law of the sister got provoked and there was hot exchange of words and a scuffle ensued, it is apparent that the incident took place upon a quarrel, which has the trappings of a sudden quarrel. The accused Brijesh attempted to snatch the knife from the deceased and facing resistance, he struck a blow on the deceased. 46. It is apparent that the appellant was not armed with any weapon what to say of knife. He did not visit the sister's house to pick on the deceased. A quarrel took place between the appellant and complainants family on the issue of torture of their sister by them. In the heat of passion during the quarrel, while snatching the kitchen knife brought by the deceased, fatal injury was inflicted on the person of deceased. It is also apparent that the act committed was without pre-meditation and in a sudden fight, in the heat of passion upon a sudden quarrel. The knife used was an ordinary kitchen knife found in the kitchen of every house to be used for peeling and cutting vegetables and fruits. 47. It is apparently a case where the act done can be attributed to a knowledge that the act is likely to cause death. It cannot be said with certainty that there was an intention to cause such bodily injury as was likely to cause death. 48. The evidence on record, at best, makes out a case of an offence punishable under Section 304 part II IPC being committed. 49. It cannot be said with certainty that there was an intention to cause such bodily injury as was likely to cause death. 48. The evidence on record, at best, makes out a case of an offence punishable under Section 304 part II IPC being committed. 49. We thus hold that the evidence establishes the commission of an offence punishable under Section 304 part II IPC by Brijesh @ Dabboo and not the offence punishable under Section 304 part I IPC. 50. The appeal No. 401/1981 is partly allowed. The conviction of appellant Brijesh for the offence under Section 304 part I IPC is modified and in that we hold the appellant Brijesh guilty of committing culpable homicide not amounting to murder having knowledge and for the offence punish him under Section 304 part II IPC. 51. What should be the appropriate sentence which needs to be imposed upon the appellant? 52. The appellant Brijesh, as per the documentary evidence, was 17 years old at the time of incident as his date of birth shown in his Secondary School Examination, 1980 marksheet is 24.12.63. 53. It was submitted by the learned counsel for the appellant that he is entitled to the benefit of Section 360 Cr.P.C. or of Probation of Offenders Act. 54. We have considered the arguments. Placing reliance on the Hon'ble Apex Court's decision in Raj Singh vs. State of Haryana reported in (2000) 10 SCC 151 , we are not inclined to grant the benefit of probation. But in view of his young age at the time of commission of offence, his being family man, educated and decently employed and also considering that he has already undergone a sentence of 9 months 3 days, we feel that the ends of justice would required the appellant to be sentenced for the period already undergone. 55. The appeal stands disposed of setting aside the conviction of the appellant Brijesh @ Dabboo for the offence punishable u/Sec. 304 Part I IPC. The appellant is convicted for the offence punishable u/Sec. 304 Part II IPC and is sentenced to undergo imprisonment for the period already undergone. 56. In view of the sentence imposed upon the appellant, nothing that the appellant has been released on bail, the bail bonds and surety bonds furnished by the appellant Brijesh @ Dabboo are discharged. 57. The appeal filed by the State being D.B.Cr. 56. In view of the sentence imposed upon the appellant, nothing that the appellant has been released on bail, the bail bonds and surety bonds furnished by the appellant Brijesh @ Dabboo are discharged. 57. The appeal filed by the State being D.B.Cr. Appeal No. 7/1983 stands dismissed.