JUDGMENT : Surinder Singh, J. The appellant was charge-sheeted and tried for the offence punishable u/s 302 of the Indian Penal Code for causing murder of Gopal Dass (deceased), but convicted for the offence punishable u/s 304 Part II of the Indian Penal Code, as such sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 20,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year. The benefit of the custody during investigation/trial as per the provisions of Section 428 of the Code of Criminal Procedure was also accorded. The appellant, hereinafter to be referred as 'the accused', felt aggrieved by the impugned judgment of conviction and sentence, hence the present appeal. In short, the prosecution story is that the accused was sitting in the quarter of PW2 Bhag Singh in village Bandal alongwith PW3 Meena Ram, Sita Ram, Chetan and Gopal Dass (deceased). All of them were having a joint feast. They had taken snacks, chicken and also started consuming beer w.e.f. 10.30 p.m. during the intervening night of 10th/11th April, 2007. Around 12.00 O'clock, the accused picked-up altercation with deceased Gopal Dass on some matter, but after sometime it cooled down. Gopal Dass was taken to room of PW4 Lok Raj to retire to his bed. Accused also left the room of Bhag Singh and went outside the room of PW4 Lok Raj and called out Gopal Dass. When he came out, the accused hit him with broken bottle of beer in his abdomen, he fell down. His other friends gathered there. Thereafter he was shifted to the hospital, where he succumbed to the injury. Police was informed by the Medical Officer, CHC, Nirmand. (ii) PW18 ASI Parsahotam Dutt visited CHC, Nirmand and recorded the statement (Ext. PW1/A) of PW1 Souji Ram u/s 154 of the Code of Criminal Procedure, which culminated into FIR Ext. PW16/B. (iii) Police prepared the inquest papers and the dead body was sent to IGMC, Shimla for autopsy. The report is Ext. PW15/A. In the opinion of the doctors, Gopal Dass had died due to ante-mortem stab injury leading to penetration of peritoneum and rupture of small intestine at various places by a sharp irregular weapon-leading to hemorrhagic shock and death. (iv) Viscera were sent for forensic examination. As per report Ext. The report is Ext. PW15/A. In the opinion of the doctors, Gopal Dass had died due to ante-mortem stab injury leading to penetration of peritoneum and rupture of small intestine at various places by a sharp irregular weapon-leading to hemorrhagic shock and death. (iv) Viscera were sent for forensic examination. As per report Ext. PW8/D, neither the contents of alcohol nor of poison were detected and no blood was found on the glass piece of broken beer bottle collected from the spot and the human blood found on the wearing apparels of the deceased, but its blood grouping result was inconclusive. (v) The accused was arrested. Pursuant to the disclosure statement Ext. PW6/A, he got recovered the broken glass bottle of beer vide memo Ext. PW6/B. Police also prepared the site plan of the place of alleged incident. 2. On completing investigation, the challan was presented in the Court for the offence of murder against the accused. At the end of trial, he was convicted and sentenced for culpable homicide not amounting to murder as aforesaid, as such the present appeal. 3. Shri M.S. Guleria, learned Counsel for the accused led me through the statement of PW1 Souji Ram wherein the weapon used is written as 'dagger'. According to him, later on after postmortem, prosecution witnesses attributed fatal injury to the broken beer bottle which was not even shown to the doctor to elicit his opinion. Further according to him, there are material contradictions in the statements of the prosecution witnesses which render the prosecution case completely doubtful. 4. Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further vehemently argued that keeping in view the fact that the incident occurred during the night and also that the deceased was hit by the accused immediately when he came out, there might not be clear vision, enough to identify the weapon, but it stands proved that the fatal blow was given by the accused, which resulted into his death. Therefore, neither the recovery of the alleged weapon nor its identification is material in this case. 5. Therefore, neither the recovery of the alleged weapon nor its identification is material in this case. 5. On having reappraised the evidence on record and after hearing the learned Counsel for the parties, in my opinion, it stands clearly proved that the accused is the author of the injury which proved fatal irrespective of the proof of the weapon used for the reasons to be recorded hereinafter, in the circumstances, it was a case falling u/s 304 Part-II of the Indian Penal Code. 6. Admittedly, during the intervening night of 10/11.4.2007, Adam Ram (accused), Gopal Dass (deceased), Chetan, PW3 Meena Ram and Sita Ram were in the rented house of PW2 Bhag Singh, who was posted as P.E.T. in Senior Secondary School, Deogi. Around 11.00 p.m. verbal altercation between the accused and Sita Ram took place. Sita Ram proclaimed him to be the third-rate person. Thereafter altercation with the accused and Gopal Dass (deceased) took place, but however, the commotion cooled down. Gopal Dass was taken to sleep to the room of PW4 Lok Raj and accused Adam Ram left the room of PW2 Bhag Singh. He went outside and called Gopal Dass to come out of the room and further asked as to why he was given beating. When Gopal Dass came out, a scuffle ensued between both of them outside the room. At that time, the accused was carrying a broken bottle of beer in his hand and according to PW2 Bhag Singh on getting the injury he fell down and the accused ran away. Sita Ram immediately lifted Gopal Dass in the vehicle towards Urtu village and all of them disbursed from the place. To this extent, the story is fully corroborated by PW2 Bhag Singh, PW3 Meena Ram and PW4 Lok Raj. 7. According to PW5 Ram Dass, father of the deceased, around 2.00 a.m. Sita Ram came to his house and disclosed that accused Adam Ram had beaten his son (Gopal Dass). To this extent, the story is fully corroborated by PW2 Bhag Singh, PW3 Meena Ram and PW4 Lok Raj. 7. According to PW5 Ram Dass, father of the deceased, around 2.00 a.m. Sita Ram came to his house and disclosed that accused Adam Ram had beaten his son (Gopal Dass). Thereafter he alongwith his wife (PW7 Amru Devi) and younger brother (PW1 Souji Ram) accompanied by Sita Ram, went to 'Sharda' where his son was lying in the back-seat of the vehicle having severe injury on his stomach and PW5 enquired from him about the injury, then he disclosed that accused Adam Ram had hit on his stomach with some object and thereafter Gopal Dass was taken to the hospital where he was given first-aid, but immediately thereafter he died. 8. PW1 Souji Ram was not an eye witness to the alleged incident, but he was informed by Sita Ram about the incident. When he went to the place known as 'Sharda', where Gopal Dass was lying in the back-side of the vehicle, he also disclosed to him that he was hit by bottle of beer by Adam Ram on his stomach. On having been confronted with his statement Ext. PW1/A he denied having mentioned that he was given a "dagger" blow, but however, clarified that when his statement was being recorded he was perplexed. He also stated that he was informed by Sita Ram, thereafter went to Gopal Dass and it was Gopal Dass who told him that it was a 'dagger' blow. Further according to him, he came to know about the blow given by the accused with the broken bottle of beer when the postmortem was conducted at Shimla. 9. In cross-examination PW2 also stated that on 10/11.4.2007, a scuffle also took place between the accused and Gopal Dass outside the room for about two minutes. Gopal Dass was in the company of PW2 aforesaid when he was called out. PW2 Bhag Singh also followed him. PW3 Meena Ram, Chetan, Sita Ram also gathered there. None of them intervened, but accused started scuffling with Gopal Dass and it was then the accused was hit him in the stomach with some weapon. 10. Gopal Dass was in the company of PW2 aforesaid when he was called out. PW2 Bhag Singh also followed him. PW3 Meena Ram, Chetan, Sita Ram also gathered there. None of them intervened, but accused started scuffling with Gopal Dass and it was then the accused was hit him in the stomach with some weapon. 10. PW3 Meena Ram in his cross-examination stated that he had seen 'the injury in the stomach of Gopal Dass when he fell down on having been hit by the accused and similar are the statements of PW4 Lok Raj and PW5 Ram Dass. Broken beer bottle was recovered in the presence of PW6 Jagdish, Pradhan of the Gram Panchayat. Few broken pieces of bottle were also recovered from the spot. Statement of PW7 Amru Devi is corroborative in nature, whereas the statement of PW9 Dr. Yashoda Anand, who had examined the deceased at CHC, Nirmand, is important. He testified that on 11.4.2007, at about 6.05 a.m., the deceased was brought to him with abdominal injury. He was in semi-conscious condition, irritable, pulse was feeble; BP was not recordable, pupils were semi-dilated and slightly reacting to light. He provided treatment, but around 6.30 a.m. his condition did not improve. He was gasping and lost the pulse, BP was not recordable. Inspite of all out efforts he could not be saved and was declared dead around 6.50 a.m. The dead-body was handed over to the police. 11. PW8 Dr. Piyush Kapila, noticed as much as 22 simple injuries on the bead-body of the deceased which were abrasions and contusions, but injury No. 2 was penetrating stab wound, reaching upto peritoneal cavity. He also found 300 ML rice and Dal alongwith a peculiar smell. The stab injury on the stomach was opined to be fatal and rupture of small intestine was noticed at various places by a sharp irregular weapon leading to hemorrhagic shock and death. The probable time between the injury and the death was opined to be delayed while that of between death and postmortem examination was around 24-36 hours. He issued the postmortem report Ext. PW8/B. After considering the forensic report, he gave the final report that injury No. 2 could be caused by broken beer glass bottle, which was fatal. However, remaining injuries could be the result of scuffle. The Viscera sent for forensic examination did not contain any alcoholic contents. 12. He issued the postmortem report Ext. PW8/B. After considering the forensic report, he gave the final report that injury No. 2 could be caused by broken beer glass bottle, which was fatal. However, remaining injuries could be the result of scuffle. The Viscera sent for forensic examination did not contain any alcoholic contents. 12. From the above discussion of evidence, it is ostensibly clear that there was no previous enmity inter se the accused and the deceased, but during the feast the accused appears to have taken excessive beer by which some anger erupted against his companions celebrating the feast, as such he started picking-up altercations with one or the other. He had also a scuffle with Sita Ram, thereafter with the deceased, but it cooled down and both were separated. But later the accused again called the deceased outside, there was a scuffle again and all the injuries caused to the deceased was the result of scuffle. There is overwhelming evidence that it was the accused and the accused alone who had some weapon like broken bottle in his hand, which stabbed on the stomach of the deceased. Deceased Gopal Dass was picked-up by Sita Ram and taken firstly to his parents and then to the hospital. All the witnesses aforesaid were grilled in their cross-examination, but nothing material could be extracted in favour of the accused. The witnesses aforesaid have no animus against the accused, rather they all of them were friends and had gathered in the house of PW2 Bhag Singh for a feast. Neither the deceased nor the accused were unwarranted persons in their company. 13. There was no pre-determination of the accused to cause the death of Gopal Dass. The recovery of the broken bottle of beer has only a corroborative value. On scanning entire evidence in my opinion, the learned trial Court rightly concluded that the accused had no requisite intention to cause death or such bodily injury as was likely to cause his death, but the accused had the knowledge that while inflicting such injury on the abdomen of the deceased as aforesaid which was likely to cause his death. Therefore, I do not find any infirmity in holding him guilty for the offence under challenge. 14. Therefore, I do not find any infirmity in holding him guilty for the offence under challenge. 14. Confronted with the above position, learned Counsel for the accused, Shri M.S. Guleria, vehemently argued that keeping in view the fact that the accused was aged about 20 years at the time of alleged incident, the sole bread earner of the family and that since the day of his arrest he is in jail, therefore, he may be leniently dealt with. 15. Admittedly, there was no previous enmity between the deceased and the accused and this fact does not disclose the intention of pre-determination to cause death, as such the offence falls u/s 304 Part II of the Indian Penal Code, which provides for the sentence punishable with imprisonment which may extend to ten years or with fine or with both. Since a valuable life on account of the illegal act of the accused has been eliminated from this planet for a song, he cannot be shown too much leniency. However, in the factual background, when the act of the accused lacked intention but he had the knowledge that the injury caused is likely to cause the death of Gopal Dass, the substantive sentence is reduced to three years without disturbing the fine amount further, but in default of payment of fine he shall further undergo simple imprisonment for a period of six months in-stead of one year. With this modification in sentence, the appeal is dismissed. 16. The learned trial Court is directed to issue modified jail warrants in conformity with this judgment. Send down the record.