JUDGMENT 1. - Heard the learned counsel for the accused-appellant as well as learned Public Prosecutor for the State. 2. This Jail appeal, registered under Section 383 Cr.P.C., is preferred to, question the correctness of the judgment dated 18.11.2004 passed by the learned Additional Sessions Judge, Fast Track No. 1, Udaipur in Sessions Case No. 82 of 2004, State v. Meerkha @ Masroo convicting the accused appellant Meerkha @ Masroo S/o Karma Gamar, R/o Deri, P.S. Kotda, District-Udaiur for the offence punishable under Section 302 I.P.C. as also under Section 4/25 of the Arms Act and sentenced him as follows: Under Section 302 I.P.C. : to undergo life imprisonment, along with fine of Rs. 2000/-, in default of payment whereof to further undergo 02 months simple imprisonment, Under Section 4/25 of Arms Act : to undergo 02 years rigorous imprisonment, along with fine of Rs. 1000/- in default of payment thereof to undergo further one month's simple imprisonment. Both the above sentences were ordered to run concurrently. The period of confinement of accused-appellant under Police Custody and Judicial Custody was ordered to be adjusted in the period of sentence as per provisions of Section 428 Cr.P.C. 3. In brief, the facts of the case are that on 30.5.2004 at 10:15 A.M. Chikla, complainant Smt. Jhamku (PW-7) wife of Saja Dabi lodged an oral information (Parcha Bayaan) (Ex.P-14), inter alia, stating that about two years ago on account of quarrel between her family and Meera in respect of theft of Ox, her husband Saja and her brother-in-law (dewar) Naniya went to Gujarat along with their family, where they started farming and labour. The day before, during the day she and her husband Saja came from Gujarat to her brothers in her paternal village Deri, where they stayed in the night. 4. In the Noon, she and her husband Saja left from Deri and reached in village Chikla at the house of their uncle Kewla, where they took meal. There Bheekha Pargi, her brother in family relation, came at Kewla's house and had some talk with her husband Saja. Bheekha prompted to Saja that he will make conciliation-compromise between him. Meerkha and Maria so that he may come and settle at his land-home. 5. Upon saying yes by her husband, Bheekha went to Deri and brought Meerkha. Meerkha S/o Makna Pargi was also accompanying Bheekha. Bheekha prompted to Saja that he will make conciliation-compromise between him. Meerkha and Maria so that he may come and settle at his land-home. 5. Upon saying yes by her husband, Bheekha went to Deri and brought Meerkha. Meerkha S/o Makna Pargi was also accompanying Bheekha. Her husband, brother Bheekha and Meerkha S/o Karma Gamar stepped out of house of Kewla then she asked Bheekha where they are going, who told that they have to have some secret talk. 6. She also starting from house Kewla chasing them came under a Peepal tree. While they were talking sitting under the peepal tree during the conversation Meerkha took out a knife (chhuri) and stabbed his husband Saja-in the chest below right shoulder. Immediately upon getting hit with Knife below, Saja ran towards house of Kewla by pressing the wound with his hand, who fell down outside the house of Kewla, Meerkha fled immediately after inflicting knife blow. In no time her husband Saja died there. 7. She, Bheekha, Kewla and Meerkha S/o Makna Pargi saw Meerkha S/o Karma Gamar inflicting the knife blow. The incident occasioned yesterday around sunset. Dead body of her husband Saja is lying outside house of Kewla. Yesterday as the night fell and no other member of family was with her, she could not report in the Police Station. 8. On the basis of aforesaid oral information (Ex.P-14), Police registered F.I.R. No. 53/2004 (Ex.P-15) for alleged commission of offence tinder Section 302 I.P.C. accused-appellant Merrkha S/o Karma Gamar was arrested on 2.6.2004 vide Ex.P-20. 9. After due investigation, challan was filed against the accused-appellant Meerkha before the Judicial Magistrate, First Class, Kotda (Udaipur). The case was then committed to the Court of Sessions, where it was assigned to the Court of Additional Sessions Judge (Fast Track) No. 1, Udaipur for trial and disposal. 10. Learned trial Court framed charge of offence under Section 302 I.P.C. as under Section 4/25 of the Arms Act, against the accused-appellant-Meerkha @ Masro son Karma Gamar, who denied commission of crime alleged against him and claimed trial. 11. During the trial, prosecution supported its case with the aid of 13 witnesses and exhibited 23 documents. An opportunity was given to the accused-appellant as per provisions of Section 313 Cr.P.C to explain his conduct with regard to adverse material available in the evidence adduced by prosecution. 11. During the trial, prosecution supported its case with the aid of 13 witnesses and exhibited 23 documents. An opportunity was given to the accused-appellant as per provisions of Section 313 Cr.P.C to explain his conduct with regard to adverse material available in the evidence adduced by prosecution. The accused-appellant negated the prosecution evidence and contended that he is innocent and there was illicit relation between Kewla (PW- 6) and Mst Jhamku (PW-7), so Kewla murdered Saja and he has been falsely implicated in this case. In defence, statement of Kewla tinder Section 161 Cr.P.C. was produced and exhibited as Ex. D-1. No other oral or documentary evidence was produced in defence. 12. The learned trial Court while relying upon the prosecution evidence and also relying upon evidence of recovery of 'Chhuri (knife) and other incriminating circumstances of commission of the crime by accused-appellant established by prosecution evidence, convicted the appellant-accused Meerkha and accordingly sentenced him in the terms mentioned herein above. 13. Feeling aggrieved by the judgment of conviction and sentence imposed by the learned Court below, the accused-appellant has filed present appeal from Jail before this Court. 14. Learned counsel for the accused-appellant contended that the trial Court has erred while relying upon testimony of the prosecution witnesses and that the prosecution has filed to prove its case beyond reasonable doubt. While contending delay in lodging of the F.I.R. as also delay in postmortem. It is also contended that PW-11-Bheekha and PW-13-Meerkha S/o Makna Pargi have turned hostile and did not support the prosecution case and supported the defence version. So far as PW-7 Mst Jhamku and PW-6 Kewla are concerned, their statements cannot be believed because there was illicit relation between Kewla and Mst. Jhamku-wife of deceased Saja. 15. It is further contended that the F.S.L report Ex.P-22 is not conclusive proof to connect the accused-appellant with the alleged crime. It is submitted that major omissions and improvements are there in the prosecution evidence and the prosecution has not produced any independent witness from the locality. 16. Learned counsel for the accused-appellant finally submitted that even accepting the prosecution story to be true, the offence alleged against the appellant-accused cannot travel to Section 302 I.P.C. It is argued that there was absolutely no evidence to show that the accused-appellant had any intention to commit murder, as medical evidence by PW-10 Dr. 16. Learned counsel for the accused-appellant finally submitted that even accepting the prosecution story to be true, the offence alleged against the appellant-accused cannot travel to Section 302 I.P.C. It is argued that there was absolutely no evidence to show that the accused-appellant had any intention to commit murder, as medical evidence by PW-10 Dr. Puran Mal Verma established that there was only one sharp-cut injury on left side of the chest. As per postmortem report Ex.P-12, the accused-appellant did not repeat the injury to the deceased. The death occurred as a result of hypovolemic shock caused by penetrating left lung and the heart. 17. The action of the appellant-accused in causing injury to the deceased was as a result of spur of hot moment in view of narration of the incident by the witnesses and the appellant-accused cannot be attributed with any pre-plan for causing such injuries to the deceased as may be sufficient in the ordinary course of nature to have caused death. Thus, it is apparent that the act of the appellant-accused was occasioned in the spur of hot emotional moments, which may at best be punishable under Section 304 I.P.C. 18. It is also urged by learned counsel that the accused-appellant has served sentence of about 7 years, he is approaching to advanced age and in view of over-all facts and circumstances of the case, lenient view should be taken. 19. While opposing the appeal, it is submitted by the learned Public Prosecutor that there is no reason to disbelieve the testimony of the eyewitness PW-6 Kewla and PW-7 Mst Jhamku and other prosecution witnesses, hence, the prosecution has proved its case beyond doubt so as to establish that it was the appellant-accused alone who committed the instant crime. Learned Public Prosecutor supported the judgment of the trial Court and submitted that the defence version was not true. It is further submitted that as per postmortem report Ex.P-12, deceased Saja died due to hypovolemic shock as a result of penetration caused to his left lung and heart by sharp-weapon and as such, the accused-appellant has rightly been convicted by the trial Court. Hence, the present appeal lacks merit and liable to be dismissed. 20. It is further submitted that as per postmortem report Ex.P-12, deceased Saja died due to hypovolemic shock as a result of penetration caused to his left lung and heart by sharp-weapon and as such, the accused-appellant has rightly been convicted by the trial Court. Hence, the present appeal lacks merit and liable to be dismissed. 20. We have given our thoughtful consideration to the submissions made by the learned Counsel for the accused-appellant Meerkha S/o Karma Gamar as well as learned Public Prosecutor and have carefully perused the evidence on the record available before us. 21. In the present matter, PW-7 Sint. Jhamku-widow of deceased Saja, PW-6 Kewla (uncle of deceased Saja), PW-11-Bheekha (brother to jhamku in family relation) and PW-13 Meerkha S/o Makna Pargi were cited as eyewitnesses of the incident. However, PW-11-Bheekha and PW-13-Meerkha S/o Makna Pargi did not support the prosecution case and they were declared hostile by the prosecution. 22. The learned trial Court found the evidence by eyewitness PW-7 Smt. Jharnku corroborated from evidence of other prosecution witnesses and the medical evidence of PW-10-Dr. Puran Mal Verma. PW-7 Mst. Jhamku clearly deposed that Meerkha stabbed 'chhuri' in the chest of Saja frontward and at that time, she was with her husband Saja. She fully proved the version as stated by her in the first information report. PW-6 Kewla also corroborated the evidence of PW-7 Mst Jhamku and deposed that the incident occurred under Peepal tree, he saw Meerkha inflicting 'chhuri' blow upon Saja, Meerkha was holding a 'chhuri' in his hand, which he stabbed into chest of Saja and after inflicting the blow, Meerkha fled from the spot. He also deposed that Mst Jhamku wife of Saja was also there. 23. According to Dr. Puran Mal Verma, cause of death was hypovolemic shock caused by penetration of heart and lung, due to sharp-cut injury suffered by the deceased on left. side of the chest, it was stao wound, orientation of wound was inward-downward and it was deep up to viscera. The wound was through upper portion of lung reaching up to left side of his heart. 24. According to Doctor, Saja died due to excessive bleeding. The injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. He further opined in the cross-examination that even if deceased would be provided timely treatment, he could not have survived. 25. 24. According to Doctor, Saja died due to excessive bleeding. The injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. He further opined in the cross-examination that even if deceased would be provided timely treatment, he could not have survived. 25. Other prosecution witnesses-PW-1 Lata was witness of panchnama (Ex.P-1), PW-2 Homa and PW-3 Uda were witness to recovery and seizure of 'chhuri' knife (Ex.P-2 and Ex.P-3), PW-4 Heera Lal was witness to preparation of memos Ex.P-1 (panchnama), Ex.P-4 (seizure of blood-smeared soil), Ex.P-5 (blood stained clothes of deceased) and Ex.P-6 (site plan) and PW-5 Dharma was witness to memos Ex.P-4, Ex.P-5 and Ex.P-6, PW-8 Jeevan Nath carrier of seized articles to the F.S.L., Udaipur (Ex.P-7 and Ex.P-8) and PW-9 Sangram Singh was malkhana in-charge at Police Station-Kotda. These witnesses proved preparation of various memos of recovery and seizure of weapon of offence and other incriminating articles, as also sending them to F.S.L. PW-12-Shivnath Singh was the then S.H.O., Police Station Kotda and Investigation Officer in the case. 26. The F.S.L. report found that the blood found on the weapon of offence (knife), the seized clothes of deceased and blood sampled from deceased matched and both found to be 'A' group. As regard delay in conducting of postmortem, explanation is made by PW-12-Shivnath Singh that as per tribal traditions, postmortem of the dead body of Saja could be conducted in presence of his elder son Khatiya, who was residing in Gujarat and as he was awaited, therefore, the delay happened in conducting of the postmortem of dead body of Saja. 27. In the facts and circumstances of this case and the prosecution evidence on record, as referred above, therefore, we are of the opinion that no fault can be found with conviction of the accused-appellant. We do not find any reason to disbelieve the testimonies of PW-6 Kewla, PW-7 Mst Jhamku and the recovery of 'chhuri' (knife). Other important incriminating circumstances and the F.S.L. report in respect of blood-stained articles seized during the investigation are sufficient to form a definite opinion about involvement of the accused-appellant in commission of the crime alleged against him. 28. In such circumstances, we do not find any error in the findings given by the trial Court to the extent of involvement of the accused-appellant in the crime. 28. In such circumstances, we do not find any error in the findings given by the trial Court to the extent of involvement of the accused-appellant in the crime. The only question requiring consideration is that whether the act of the accused-appellant amounts to murder, punishable under Section 302 I.P.C. or it constitutes an offence other than that. In this regard, it would be appropriate to consider the essential requirements to invoke exception 4 of Section 300 I.P.C. Exception 4 to Section 300 I.P.C. can be invoked if any of those requirements are satisfied. 29. The issue now survives only with regard to nature of crime committed by the accused-appellant. The learned trial Court held the accused-appellant guilty for the offence punishable under Section 302 I.P.C., however, from the facts and evidence available on the record, it does not reveal that the accused-appellant was intending to commit murder of Saja. 30. As per prosecution evidence, the occurrence took place suddenly. There was no pre-meditation. As per evidence of PW-7 Mst .Jhamku widow of deceased Saja, PW-6 Kewla and the facts contained in the First Information Report of this case, there was conversation of compromise between the deceased and the accused-appellant and during that conversation for compromise, there occurred exchange of hot words between the accused-appellant and the deceased and they also indulged in quarrel and during the course of that quarrel, the accused-appellant suddenly inflicting one 'chhuri' (knife) blow on left side of chest of deceased. Thus, the act was done in heat of passion. 31. This also proves that the accused-appellant did not take any undue advantage of the situation or acted in a cruel manner, the accused-appellant inflicting a single 'chhrui' blow and did not repeat it. There is no universal rule to mandate that whenever a single blow of weapon is inflicted, resulting in death of the victim, the case would fall under Section 304 I.P.C. and each case involving single blow has to be decided on the facts and circumstances obtaining in that case. 32. For the application of Exception 4 of Section 300 I.P.C., it is not sufficient to show that there was sudden quarrel and there was no pre-meditation but it must further be shown that the offender has not taken undue advantage of the situation or acted in a cruel or unusual manner. 32. For the application of Exception 4 of Section 300 I.P.C., it is not sufficient to show that there was sudden quarrel and there was no pre-meditation but it must further be shown that the offender has not taken undue advantage of the situation or acted in a cruel or unusual manner. Upon consideration of aforesaid background facts in the light of the principles set out above, it is clear that to the present case exception 4 of Section 300 I.P.C. would apply. 33. The accused-appellant Meerkha @ Masroo must be having knowledge that the bodily injury caused by him through sharp-edged object like chhrui' (knife) may result in death of the victim but he was intending to kill Saja because he did not repeat the blow. Therefore, we impute only this much intention for the accused-appellant that the injury inflicted by him was likely to cause death and this act of him comes within the purview of Section 304 Part-I I.P.C. 34. In view of the discussion made above we are inclined to accept this appeal in part. Accordingly, the appeal is partly allowed. The impugned judgment dated 18.11.2004 passed by learned Additional Sessions Judge, Fast Track No. 1 Udaipur in Sessions Case No. 82/2004 is set aside to the extent of conviction of the accused-appellant Meerkha @ Masroo S/o Karma Gamar, R/o Deri, Police Station Kotda (Udaipur) for offence under Section 302 I.P.C. and instead, he is convicted for offence under Section 304 Part-I I.P.C. 35. The conviction of the accused-appellant for offence punishable under Section 4/25 of the Arms Act and sentence therefore imposed by the trial Court is, however, maintained. 36. Consequently, sentence of life imprisonment with fine of Rs. 2000/- in default of payment whereof to undergo two months simple imprisonment, imposed upon the accused-appellant Meerkha Q Masroo S/o Karma Gamar is also modified and substituted with sentence of 10 years' rigorous imprisonment, along with fine of Rs. 1000/- in default of payment where of undergo simple imprisonment for one month.Appeal partly allowed. *******