JUDGMENT 1. - Judgment of conviction and order of sentence dated 19.11.2005, passed by the learned Additional Sessions Judge, Deedwana Distt. Nagaur in Sessions Case No. 4/2005 is in challenge in this appeal. 2. By the impugned judgment of conviction and order of sentence aforesaid the learned trial Judge, convicted the appellant under Section 302 of the Indian Penal Code (hereinafter called as 'the I.P.C.') and sentenced him for life term imprisonment and fine amounting to Rs. 2,000/-, in event of default in payment of fine to suffer another three months rigorous imprisonment. Being aggrieved by the said conviction and sentence, the convict appellant has preferred this appeal. 3. The prosecution case is unfolded at the trial, in brief, may be stated as follows: The present case involves the killing of Sri Shravan Singh S/o Ummed Singh (hereinafter referred to as 'the deceased ) by the appellant accused. 4. On 8.7.2004 at about 12.20 P.M. deceased Shravan Singh reached at bus stand Singirwatkala, at that time accused Ajmal Singh came there and inflicted a knife blow to Shravan Singh from back side. Due to it Shravan Singh became unconscious. Bhagwan Singh, Mangesh Singh and Gulab Chand Soni intervened and shifted Shravan Singh to Deedwana but the Doctor referred him to Sikar and thereafter to Jaipur. 5. PW-4 Bhagwan Singh lodged a written report Ex.P-1 regarding this incident at Police Station Deedvvana on the same day. Police after receiving the F.I.R., registered a case being F.I.R. No. 111/2004, under Section 307 I.P.C. and launched investigation into the matter. 6. During investigation Shravan Singh was medically examined, statements of witnesses were recorded and rough site plan of place of incident and site inspection memo was were also prepared, controlled soil and blood stained soil were taken from the place of incident. The foot wears of injured Shravan Singh, the blood stained garments of injured were also seized. During course of treatment injured Shravan Singh died, hence the investigation was converted from 307 I.P.C. to 302 I.P.C. Accused Ajmal Singh was arrested and on information submitted by him, a leaf of scissor was recovered. The rough site plan of place of recovery was prepared after conducting post mortem of dead body the post mortem report was taken on record, inquest report and dead body description memo were also prepared. The seized articles were sent to F.S.L. Jodhpur for examination. The rough site plan of place of recovery was prepared after conducting post mortem of dead body the post mortem report was taken on record, inquest report and dead body description memo were also prepared. The seized articles were sent to F.S.L. Jodhpur for examination. At the close of investigation, police submitted a charge-sheet against the accused for the offence under Section 302 I.P.C. before the Court of learned Addl. Sessions Judge, Deedwana Distt. Nagaur on 9.9.2004. 7. The offence under Section 302 I.P.C. being exclusively triable by the Court of Addl. Sessions Judge, Deedwana. After compliance the provisions envisaged under Section 207 Cr.P.C., committed the case to the Court of learned Addl. Sessions Judge, Deedwana (hereinafter referred as learned trial Court) and the learned trial Court after hearing the Addl. Public Prosecutor and learned counsel for the accused framed the charge under Section 302 I.P.C. vide its order dated 25.1.2005 against accused to which, latter pleaded not guilty and claimed to be tried. 8. In order to prove its case, the prosecution examined as many as 16 witnesses. 9. At the conclusion of the prosecution evidence, the accused person was examined by the learned trial Court under Section 313 Code of Criminal Procedure (for short Cr.P.C'). The accused denied the allegations, brought against him and did not choose to adduce any evidence in his defence. His plea was a total denial one. 10. After hearing the Addl. Public Prosecutor and learned counsel for the accused and considering the evidence on record, the learned trial Court found the appellant guilty for the offence under Section 302 I.P.C. and accordingly, convicted and sentenced the accused, as indicated above. 11. Being aggrieved, the convict, who has been suffering the sentence as appellant, has preferred this appeal. 12. We have heard Mr. M.K. Garg learned advocate appearing on behalf of appellant and Mr. K.R. Bishnoi, learned Public Prosecutor appearing for the State of Rajasthan. 13. The learned counsel for the appellant submitted that prosecution has examined PW-1 Gulab Chand, PW-2 Laxman Singh, PW-4 Bhagwan Singh and also PW-6 Sri Shriram, PW-7 Tejpal Singh, PW-11 Mangesh Singh to be eyewitnesses of this case though first three of them were named in the F.I.R. and the names of PW-2 Laxman Singh, PW-6 Shri Shrirani and PW-7 Tejpal Singh were not mentioned, therefore, their presence seems to be doubtful. He further submitted that the statements of the witnesses as to the place of occurrence are contradictory. According to the F.I.R., occurrence took place at the bus stand whereas PW-5 Ummed Singh states that the occurrence took place in front of Chabutari of Poosa Ram Jangid, therefore, the presence of so called eye-witness PW-5 Ummed Singh is doubtful. He further submitted that as per the F.I.R. the injury was caused by knife but recovery has been made to that of leaf of scissor and both these weapons cannot be equated with each other. He further submitted that PW-12 Dr. V.K. Garg who prepared the injury report noticed two injuries as lacerated wounds caused by blunt weapon. This also falsifies the version given in the F.I.R. as well as version given by the eye-witnesses. He further submitted that as per the post mortem report wounds were stitched and it cannot disclose the nature of the injuries, therefore, for ascertaining the nature of injuries well shall have to depend upon the doctor, who examined the injuries for the first time. He has further submitted that the operation notes were not produced during the trial. As such no case is proved against the accused appellant. Alternately, he submitted that from the version of eye-witnesses and medical evidence accused inflicted only one blow on the abdomen, as such, the case at the most comes in the purview of exception of Section 300 of the I.P.C. and accused may be, at the most, liable for offence under Section 304 I.P.C. 14. Refuting the said arguments, the learned Public Prosecutor, supporting the impugned judgment of conviction and order of sentence, has submitted that, there is sufficient evidence of intentionally causing the injuries with a sharp object on vital parts of the body and leaf of scissor was recovered in pursuance of information submitted by the accused from his conscious possession and stained with human blood and the eye-witnesses supported the prosecution case, their presence is not doubtful and as such the learned trial Judge committed no error by recording the conviction and the sentence under Section 302 of the I.P.C. 15. In order to appreciate the arguments, advanced on behalf of the parties, we feel it appropriate to briefly scan the evidence on record.PW-1 Gulab Chand, PW-2 Laxman Singh, PW-4 Bhagwan Singh, PW-5 Ummed Singh, PW-7 Tejpal Singh and PW-11 Mangesh Singh stated in their statements that on 8.7.2004 about 12.00-12.30 P.M. Ajmal Singh inflicted injuries on the abdomen of Shravan Singh by a weapon like knife, due to which, Shravan Singh turned unconscious and he was shifted to Deedwana thereafter to Sikar and then he was referred to Jaipur.PW-3 Ratan Singh stated that after taking liquor accused Ajmal Singh was harassing to Shravan Singh since last one month. Due to this enmity Ajmal Singh murdered Shravan Singh.PW-4 Bhagwan Singh and PW-8 Mangu Singh stated that police prepared a site plan, site inspection memo in their presence, recovered the foot wears of Shravan Singh from the spot vide Ex.P-6 and garments of deceased Shravan Singh were also recovered vide Ex.P-5 in their presence.PW-8 Mangu Singh stated that police also took in possession the blood stained soil and controlled soil from the place of occurrence and prepared memo Ex.P-8 thereto in his presence.PW-9 Gulab Singh and PW-10 Ranjeet Singh stated that police recovered a leaf of scissor from conscious possession of accused Ajmal Singh at his instance and the site plan of the place of recovery was also prepared as Ex.P-9.PW-12 Dr. V.K. Garg stated that he examined the injuries of Shravan Singh and prepared injury report Ex.P-10 and found following injuries: "(1) Lacerated wound ½ cm x 2 cm x bone deep right side of lower chest interior side by blunt object; (2) Lacerated wound ½ cm x 2 cm x bone deep on right side of abdomen caused by blunt weapon. The opinion regarding nature of injuries were kept reserved till operation notes and duration of injuries were shown as six hours.PW-15 Saiyad Immamudin, S.H.O. stated that Bhagwan Singh and Gulab Singh submitted a written report Ex.P-1 on which he registered a case and commenced investigation. During investigation, he inspected the place of occurrence and prepared a rough site plan in presence of Motbirs as Ex.P-4, statements of witnesses were recorded, arrested the accused vide arrest memo as Ex.P-3, took in possession control soil and blood stained soil vide memo Ex.P-8. The foot-wears of deceased were took in possession vide Memo Ex.P-6. During investigation, he inspected the place of occurrence and prepared a rough site plan in presence of Motbirs as Ex.P-4, statements of witnesses were recorded, arrested the accused vide arrest memo as Ex.P-3, took in possession control soil and blood stained soil vide memo Ex.P-8. The foot-wears of deceased were took in possession vide Memo Ex.P-6. The blood stained garments of injured Shravan Singh were took in possession vide Memo Ex.P-5 and the leaf of scissor which was used to assault the deceased was recovered vide Ex.P-15 and after completion of investigation charge-sheet was filed against the accused for offence under Section 302 I.P.C.PW-13 (sic) stated that being Malkhana-in-charge he sent the articles relating to F.I.R. No. 111/2004 to F.S.L. Jodhpur with Bundu Khan constable after depositing the same in F.S.L. Jodhpur, submitted receipt to him. He proved the Malkhana Register Ex.P-12.PW-16 Bundu Khan stated that after receiving the articles relating to this case from Malkhana-in-charge on 25.7.2004 he went to Superintendent of Police, Nagaur and got prepared forwarding letter thereafter deposited the articles at F.S.L., Jodhpur. 16. All the said witnesses who saw the incident were cross-examined by the defence and no contradictory evidence could be brought on record to demolish the prosecution version. 17. The seizure memo Ex.P-15 reveals that police had seized a leaf of scissor as the weapon of offence used by the appellant in assaulting the deceased. PW-1 Gulab Chand, PW-2 Laxman Singh, PW-4 Bhagwan Singh, PW-5 Ummed Singh, PW-7 Tejpal Singh and PW-11 Mangesh Singh supported the prosecution version regarding the injuries and the leaf of scissor, corroborated the evidence of eye-witnesses on material point. The evidence of above witnesses that the appellant assaulted the deceased on his abdomen remained un-impeached and PW-9 Gopal Singh and PW-10 Ranjeet Singh supported the recovery of leaf of scissor, corroborated the evidence of eye-witnesses on material points. Further all the eye-witnesses corroborated the evidence of PW-1 Gulab Chand regarding the assault by the appellant. 18. The Medical Officer who performed the autopsy of the dead body of the deceased deposed as PW-14 Dr. R.K. Poonia stated that upon postmortem examination of the 9aid body, he prepared postmortem report Ex.P-13 and found the following injuries: "(1) Stitched wound present on front of right side abdomen vertically placed, 3.5 cm right lo interior mid line 28 cm in length. (Possibly by surgical intervention). R.K. Poonia stated that upon postmortem examination of the 9aid body, he prepared postmortem report Ex.P-13 and found the following injuries: "(1) Stitched wound present on front of right side abdomen vertically placed, 3.5 cm right lo interior mid line 28 cm in length. (Possibly by surgical intervention). Stitches present in situ, red clotted blood on margin. (2) Stitched wound present over front of right side of upper abdominal area size 5.2 cm in length. Stitches present in situ. Horizontally plated stitches present in situ. Clotted blood present on the margin situated 5.6 cm right to anterior mid line and 9.3 cm blow and vertically to right nipple. (3) Stitched wound right side iliac fossae, obliquely placed size 5.6 cm in length, stitches present in situ clotted blood present on the margin. (4) Three incised wound of which two is present in left side anterior lateral aspect of lower part of abdomen and one is present on anterior lateral aspect of right side of abdomen in lower part, size 1 cm x 0.5 cm x abdominal cavity deep (possibly drange lube wound). On dissection of injury No. 1, it is found that the skin, muscles and peritoneum found stitched. On dissection of injury No. 2, it is found that skin, muscles and peritoneum found stitched and further dissection, it is found that there is a cut injury over liver at left lobe through and through at its border, size 5 cm x 0.8 cm x 2.5 cm through and further dissection, it is found that there is stomach anterior wall found stitched in two layer, 4.8 cm in length and further dissection, it is found that posterior stomach wall found stitched in two layer, 2.6 cm in length and further dissection it is found that transverse mesocolon found stitched 1.7 cm in length, red clotted blood present at the side of liver injury and at the side of stomach and mesocolon sutures. On dissection of injury No. 3, it is found that skin, muscles and posterior found stitched in two layer. On further dissection, it is found that there is stitched would over fold of peritoneum, 3.5 cm in length and on further dissection, it is found that anterior stomach wall at its lower part found stitched 2.7 cm in length. On dissection of injury No. 3, it is found that skin, muscles and posterior found stitched in two layer. On further dissection, it is found that there is stitched would over fold of peritoneum, 3.5 cm in length and on further dissection, it is found that anterior stomach wall at its lower part found stitched 2.7 cm in length. The stitched wound over stomach in lower and right to another stitched wound over anterior wall of stomach as appeared in dissection of injury No. 2. Track of injury No. 2 front to back and right to left. Track of injury No. 3 front to back upwards and right to left. All injuries were ante-mortem in nature. It was opined that death is due to shock and hemorrhage as a result of injury to abdominal, which are sufficient to cause death in ordinary course of nature as mentioned in the postmortem report." 19. From the said medical evidence it is clear that the deceased sustained homicidal ante-mortem injuries caused by sharp edged weapon and the death was caused due to shock and hemorrhage as a result of injury to abdominal viscera which are sufficient to cause death in ordinary course of nature. The injury report Ex.P-10 supports the evidence of eye-witnesses regarding the location of the injuries. The injuries were found on the abdomen. PW-1 Gulab Chand, PW-2 Laxman Singh, PW-4 Bhagwan Singh, PW-5 Ummed Singh, PW-7 Tejpal Singh and PW-11 Mangesh Singh who are the eye-witnesses stated that deceased was given blows on the abdomen. Hence, there is sufficient corroboration in the medical evidence and the ocular evidence. 20. It is true that PW-12 Dr. V.K. Garg who initiated the examination of injuries of the deceased at Deedwana and proved injury report Ex.P-10 stated that both the injuries were caused by blunt weapon whereas the eye-witnesses stated that the injuries were inflicted by tire weapon like knife and recovery was shown that of leaf of scissor. While PW-14 Dr. R.K. Poonia who conducted autopsy stated that during conducting autopsy of dead body he noticed the injures mentioned above. 21. Injury No. 2 was found as stitched wound on front portion of abdomen and right side 5.2 cm in length which was placed horizontal. This wound was 5-6 cm in length. While PW-14 Dr. R.K. Poonia who conducted autopsy stated that during conducting autopsy of dead body he noticed the injures mentioned above. 21. Injury No. 2 was found as stitched wound on front portion of abdomen and right side 5.2 cm in length which was placed horizontal. This wound was 5-6 cm in length. In his cross-examination this witness clearly stated that injury No. 2 was inflicted by the sharp edged weapon and was stabbed wound he clearly stated that it is wrong that only doctor who examined the injuries can only say that by which weapon injuries were caused. Meaning thereby, he clearly stated that he was in a position to state that the injuries which were noticed by him were caused by which type of weapon and further stated that injury No. 2 was caused by sharp edged-weapon as stab wound. As such the opinion of this witness regarding the weapon of offence is different from that of PW-12 Dr. V.K. Garg and opinion of this witness is corroborating with the statements of eye-witness. 22. A medical witness called as an expert to assist the Court is not a witness of fact and the evidence given by the Medical Officer is of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of he date which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert, may form its own judgments on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the Medical Officer but of the Court. (Pratap Mishra v. State of Orrisa, reported in AIR 1977 Supreme Court 1307) . 23. When all the eye-witnesses categorically stated that injuries were inflicted by the accused by the weapon like knife and as per PW-14 Dr. R.K. Poonia, the injuries were found on the abdomen by sharp edged weapon were stab wound. This falsifies the opinion of PW-12 Dr. V.K. Garg regarding nature of injuries as well as the weapon of offence by which the injuries was caused. Further in Ex.P-10 which was proved by PW-12 Dr. R.K. Poonia, the injuries were found on the abdomen by sharp edged weapon were stab wound. This falsifies the opinion of PW-12 Dr. V.K. Garg regarding nature of injuries as well as the weapon of offence by which the injuries was caused. Further in Ex.P-10 which was proved by PW-12 Dr. Garg the opinion regarding gravity of injuries were kept reserved for want of operation note. As per Ex.P-10, the blood pressure of the injured was not measured though the injured was requiring operation. PW-12 Dr. V.K. Garg without giving seriousness, prepared injury report Ex.P-10. In light of statements of PW-14 Dr. R.K. Poonia and statements of eye-witnesses, the injury report Ex.P-10 prepared by PW-12 Dr. V.K. Garg seems to be suspicious regarding the nature and weapon of offence and the same cannot be believed and at the same time the arguments advanced, by learned counsel regarding the nature of injuries are also of no consequence. 24. So far as the presence of eye-witnesses at the place of incident in concerned, as per F.I.R. and investigation the incident took place on 8.7.2004 at about 12.00-12.30 P.M. in the broad day light this too on the bus stand of village Singrawatkala and all the witnesses were subjected to cross-examination but they have not shaken on the material points. Bus stand is a public place and their presence at the time of incident cannot be disbelieved. So far as place of incident is concerned, as per Ex.P-4 site plan which was proved by the Motbirs PW-2 Laxman Singh and PW-4 Bhagwan Singh and Investigating Officer. The place of incident was shown as marked 'X' and the places from where the eye-witnesses saw the incident are also shown. As per Ex.P-4, Mark 'X' place is near the cemented Chabutari of Poosa Ram Jangid outside of his flour mill and the whole place is known as bus stand as such, the flour mill of Poosa Ram Jangid is there itself on the bus stand and in front of flour mill there is cemented Chabutri marked as 'D' and the incident took place near that Chabutri i.e. on the bus stand itself as such mere saying by the eye-witnesses that incident took place in front of flour mill of Poosa Ram or Chabutri makes no difference as all are there on the bus stand. It is true that witnesses stated in their statements that injuries were inflicted by knife while recovery was made of leaf of scissor that too makes no difference if a man sees while inflicting by the another accused person by the leaf of scissor, it also sees like knife, then it too makes no difference. 25. So far as non-production of operation notes are concerned, it is true that operation notes were not produced during trial but what prejudice was caused to accused by not producing the operation notes has not been shown by the learned counsel for the appellant accused and when the post mortem report is there, in such circumstances mere non-production of operation notes does not create doubt on the prosecution case. 26. Considering the above evidence, we find sufficient corroboration in the evidence of the prosecution witnesses, who supported the prosecution version of the case. In view of above, we have no hesitation in holding that the prosecution could prove, by adducing cogent and reliable evidence, beyond any reasonable doubt that the appellant accused caused the death of deceased by inflicting blows by a leaf of scissor and thus, he was guilty of committing culpable homicide. 27. Now the question is whether the appellant was guilty of committing murder under Section 302 I.P.C. or culpable homicide not amounting to murder under Section 304 I.P.C. 28. Except in the cases, mentioned in Section 300 I.P.C., culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or: secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of a person to whom the harm is caused; or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or fourthly, if the person committing the act knows that if so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Section 300 I.P.C. provides the following exceptions. "Exception 1. Section 300 I.P.C. provides the following exceptions. "Exception 1. When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos- First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the (sic) of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.- Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent." 29. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent." 29. Under the first exception culpable homicide is not murder if the offender, whilst deprived of the power of the self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Similarly, under the fourth exception, if the death is caused without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner, the death does not amount to murder. Culpable homicide and murder involves the killing of a person. What distinguishes these two offences is the presence of a special mens rea, which consists of four mental attitudes in the presence of any of which, the lesser offence becomes greater. These four mental attitudes are stated in Section 300 I.P.C. distinguishing murder from culpable homicide. 30. The punishment for culpable homicide, not amounted to murder, has been prescribed in Section 304 I.P.C. Section 304 I.P.C. reads as follows: "304. Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done 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." 31. Under Section 304 I.P.C., depending upon different circumstances, two kinds of punishments have been prescribed. Under Section 304 I.P.C., depending upon different circumstances, two kinds of punishments have been prescribed. Firstly, under Part-I of Section 304 I.P.C., if the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death the punishment is imprisonment for life or imprisonment of either description for a term which may extend to 10 years and fine. Secondly, if tire act is done with knowledge that it is likely to cause death but without any cause death, the punishment is imprisonment of either description for a term, which may extend to 10 years of with fine or with both. Therefore, if the act is done with intention of causing death, for such bodily injury, as is likely to cause death, then the offender is liable for Part-I of Section 304 I.P.C. Whereas, if the act is done with knowledge that it is likely to cause death but without any intention to cause death, then the offence committed by the person would fall under Part-II of Section 304 I.P.C. 32. In view of the above, in a murder case, the Court is required to make proper appreciation of the evidence and of law before reaching the conclusion that the case proved is culpable homicide, because all "murder is culpable homicide" but not vice-versa. "Culpable homicide sans "special characteristics of murder" as defined in Section 300 I.P.C. is culpable homicide not amounting to murder. 33. Under the first exception culpable homicide is not murder if the death is caused by offender, whilst deprived of the power of self control by grave and sudden provocation. Similarly under the 4th exception if the death is caused in the heat of passion upon a sudden quarrel without the offender having taken undue advantage or acted in a cruel or unusual manner the death does not amount to murder. As such the statement of PW-3 Ratan Singh it was the appellant accused who was teasing his daughter for which Shravan Singh objected and warned him, which was sufficient to provoke a person. As such the statement of PW-3 Ratan Singh it was the appellant accused who was teasing his daughter for which Shravan Singh objected and warned him, which was sufficient to provoke a person. On being so provoked and the fact that the appellant is of 18 years of age at the time of incident or in all probabilities lost his cool and self control and consequently by giving blow with the leaf of scissor retaliated so apparently, he used the leaf of scissor as weapon of assault. There is nothing on record to show that he had any premeditation to assault or kill Shravan Singh. If he had any such premeditation to kill the deceased he could have inflicted several blows for finishing the life of the deceased on the spot itself. Of course, he gave Iwo blows but if he had intention to kill, he could have given the second blow also with full force. The deceased, as revealed from the evidence on record, firstly warned the accused and thereafter threatened as such he was the aggressor. Had the deceased not threatened and provoked the appellant as indicated above by the attending circumstances, the appellant would not have assaulted the deceased, therefore, as the offence was committed without any premeditation and was in a heat of passion upon a sudden quarrel on being provoked by the deceased and without the offender having taken undue advantage or acted in a cruel or unusual manner the same is covered by first and fourth exceptions aforesaid. 34. In view of above we are inclined to hold that the appellant committed the offence amounting to culpable homicide not amounting to murder i.e. the offence under Section 304 I.P.C. in the present case. 35. From the evidence on record, as discussed above, in the present case the appellant inflicted the fatal blow on the abdomen with sharp object and abdomen is a vital part of a body by leaf of scissor. 35. From the evidence on record, as discussed above, in the present case the appellant inflicted the fatal blow on the abdomen with sharp object and abdomen is a vital part of a body by leaf of scissor. He d id not repeat the blow on the abdomen and the injured Shravan Singh did not die instantaneously, he died on 10.7.2004 at 10.45 A.M. i.e. after two days of the said occurrence, therefore, in our considered opinion, the offence committed by the appellant is covered by Section 304 Part-I I.P.C., the punishment prescribed for which is imprisonment for life or imprisonment either description for a term which may extend to ten years and shall also be liable to fine. 36. The appellant, who was about 18 years of age and deceased was of the age of 30 years, at the time of incident and the fact that appellant has already suffered imprisonment for more than 8 years, therefore, considering the entire aspect of the matter and the attending facts and circumstances, in which the offence was committed and only single blow was inflicted on the abdomen of the deceased, we are of the considered view that the appellant will serve the imprisonment for ten years and fine awarded by learned trial Court, that will be sufficient to meet the ends of justice. 37. Accordingly, the conviction under Section 302 I.P.C., is modified to one under Section 304 Part-I I.P.C. and the sentence of life term imprisonment is reduced to ten years without interfering regarding payment of fine. 38. Thus, the appeal is partly allowed with the modifications as indicated above. Copy of judgment be forwarded to the Superintendent, Central Jail, Jodhpur for information and necessary action including for information to the appellant.The lower Court record be returned with the copy of the judgment.Appeal patly allowed. *******