Hon'ble JAIN, J.—By judgment dated 6.12.2006 passed by Additional Sessions Judge, Nimbahera, District Chittorgarh in Sessions Case No. 43/2005, the said court had acquitted accused Chhagan Lal from all the charges but convicted and sentenced the remaining two accused Raju and Ramesh Chandra as follows:- (1) Raju: (1) Sec. 302 IPC : Life imprisonment with a fine of Rs.1000/- and, in default of payment of fine, three months' additional rigorous imprisonment. (2) Sec.324 IPC : two years' rigorous imprisonment. Both the substantive sentences were ordered to run concurrently. (2) Ramesh Chandra: Sec.307 IPC : three years' rigorous imprisonment with a fine of Rs.500/- and, in default of payment of fine, one month's additional rigorous imprisonment 2. Appellant Ramesh Chandra has not challenged his conviction under Section 307 IPC, but the only prayer is for reduction of sentence. He has submitted that he has already suffered two years' imprisonment and the trial court had passed sentence only of three years rigorous imprisonment against him with fine of Rs.500/-. His prayer is only for release on undergone sentence. 3. We have perused the participation of accused-appellant Ramesh Chandra in the crime alleged and after hearing arguments from both the sides and looking to the injuries of injured, we are convinced that the sentence of accused Ramesh Chandra deserves to be reduced to two years' rigorous imprisonment with a fine of Rs.500/- and, in default of payment of fine, he will have to suffer one month's additional rigorous imprisonment. 4. Now, we will consider the arguments of accused-appellant Raju. He has been convicted by the trial court under Sections 302 and 324 IPC. He has not challenged his conviction and sentence under Section 324 IPC, but his only prayer is to the effect that he should have been convicted under Section 304 Part I IPC instead of Section 302 IPC, because as per him, he had not caused intentional death of Jagdish and it was only during a sudden quarrel and that too for a petty amount of money, that Jagdish came in between the two persons who were fighting with each other and so, Jagdish got a fatal stab injury resulting in his death. It has been argued by the accused-appellant Raju that his act was not intentional and further there was no premeditation before the commission of the said act. It has been argued by the accused-appellant Raju that his act was not intentional and further there was no premeditation before the commission of the said act. It has also been argued by accused-appellant Raju that he is continuously in custody in this case since the date of his arrest, viz., 9.5.2005. Accused-appellant Raju also prays that he should be released on undergone sentence by converting his sentence from section 302 IPC to Section 304 Part I IPC. In the light of aforesaid arguments, we have heard both the parties and perused the record. 5. As per the evidence on record, one Madan Lal had taken Ramesh Chandra as labour with him to Gujarat allegedly on monthly wages of rupees one thousand. A dispute arose between Ramesh Chandra and Madan Lal because Ramesh Chandra was claiming monthly wages at the rate of rupees one thusandd five hundred and during that quarrel, Raju also got himself involved in favour of Ramesh Chandra and in that scuffle, Ramesh Chandra was going to cause knife injury to Madan Lal but Madan Lal saved himself and then Raju who was in support of Ramesh inflicted knife injury to Jagdish in his back causing his death. Three persons, Shyam Lal, Kalu and Jagdish had received injuries in the said scuffle. Accused Ramesh Chandra also received injuries in that incident. Evidence shows that Jagdish caused knife injury on the eye of Ramesh Chandra and then Raju in retaliation caused knife injury to Jagdish. PW-2 Madan Lal also narrates the incident in the same manner. PW-3 Hem Raj also states that it was a case of sudden fight in which Ramesh Chandra, Shyam Lal , Kalu and Jagdish all had received injuries and out of them, Jagdish had succumbed to his injuries. 6. PW-5 Gopal has stated that Raju wanted to attack on Madan Lal but Mdan Lal was able to save himself and then Raju attacked again on Madan Lal but this time, Shyam Lal came in between the two and Shyam Lal got simple knife injury only and then Raju again tried to attack on Madan Lal, then this time Jagdish came in between the two and so knife injury was caused to Jagdish causing his death. Thus, as per the statement of Gopal also, it can be said that Raju had no intention to kill Jagdish and it was the bad-luck of Jagdish that he tried to save Madan Lal and got himself injured. 7. PW-7 Kalu has stated that Chhagan Lal was complaining about knife injury caused to Ramesh Chandra and then both the parties had started causing injuries to each other and in that scuffle, Jagdish received fatal knife injury from Raju causing his death. 8. PW-10 Shyam Lal states that the scuffle started at the time of settlement of account and in that scuffle Raju caused knife injury to him as well as to Jagdish and Jagdish succumbed to his injury. 9. PW-21 Dr. Jaswant Singh Madhdha had conducted the post-mortem of dead body of Jagdish and he states that following injuries were found on the body of deceased Jagdish:- ^^01- LVscoaqM 3 ls-eh- xq.kk 1 ls-eh- xq.kk dsosVhfMih ¼dsosVh Mhi½ mä pksV dej ds nkghuh rjQ Fkh tks fd 14 ls-eh- dU/ks ls fups Fkh ,oa dej ds chp ls pkj ls-eh- ik'oZ rjQ Fkh mä pksV ds vklikl [kwu tek Fkk o ikWpok bUVj dkLVy Lisl esa fLFkr Fkk iksLV eksVZe ds nkSjku 'kjhj dks [kksyus ij flus ls fuEu pksVs ikbZ xbZ %& 01- ,d ls-eh- xq.kk 1 ls-eh- Iywjk dVh gqbZ Fkh tks fd pksV uacj iwoZ esa crkbZ Fkh ds uhps FkhA nkfguh rjQ dj Iywjy dsosVh esa [kwu Hkjk gqvk FkkA nkfguk QsQMk esa ,d ls-eh- xq.kk ,d ls-eh- iqjk bUVhjh;j ljQsl vkWQ fefMy ykWo vkQ jkbZV yaXl esa Fkk fd iwoZ crkbZ xbZ pksV ds yxkrkj esa FkkA mä pksV fr[ks /kkjnkj gfFk;kj ls dkfjr FkhA mä pksV djus ls iwoZ dh FkhA iksLVekVZe fjiksVZ izn'kZ ih&26 gS ftl ij , ls ch esjh jk; vafdr gS lh ls Mh eSjs gLrk{kj gSA esjh jk; esa e`R;q dk dkj.k T;knk [kwu fudyus dh otg ls gqbZ ftldk dkj.k nkfgus QSQMs esa vkbZ pksV FkhA** 10. Accused-appellant Raju seeks help from the following rulings:- (1) Jayaraj vs. The State of Tamil Nadu, AIR 1976 SC 1519 . In this case, the accused stabbed the deceased with a knife in a sudden occurrence. Accused-appellant Raju seeks help from the following rulings:- (1) Jayaraj vs. The State of Tamil Nadu, AIR 1976 SC 1519 . In this case, the accused stabbed the deceased with a knife in a sudden occurrence. The injury was not caused either with the intention of causing death or with the intention of causing such bodily injury as it likely to cause death as is sufficient in the ordinary nature of course. At the most the accused had, while causing stab blow, knowledge that the act is likely to cause death. The doctor conducting autopsy stated that the injury was likely to cause death. In these circumstances, Hon'ble the Apex Court held that the offence of accused did not amount to murder but it was culpable homicide, not amounting to murder punishable under Part I of Section 304 IPC. (2) Ramesh Vithalrao Thakre & anr. vs. State of Maharashtra, 1995 Cri.L.J. (SC) 2907. In this case, single knife injury was caused by the accused in the abdomen of deceased who was intervening to save her brother being attacked by accused. The accused did not inflict any other injury to the deceased, so in the circumstances of the case, Hon'ble the Apex Court was of the view that accused can be clothed with knowledge and not the intention that the injury was likely to cause death and, accordingly, the accused was convicted under Part II of Section 304 IPC, instead of Section 302 IPC. 11. In the case in hand also, there was no enmity between deceased Jagdish and accused-appellant Raju. It is not a case of intentional killing of Jagdish by Raju. It was only an accident that Jagdish intervened to save another person from the attack of Raju. Raju is in jail since last nine years. Looking to the totality of the circumstances, we are convinced that accused Raju should have been convicted under Part I of Section 304 IPC, rather than under Section 302 IPC and, thus, his appeal deserves acceptance to that extent. 12. Accordingly, both these appeals are partly allowed as follows:- (1) Sentence of accused-appellant Ramesh Chandra in D.B. Criminal Appeal No.145/2005 is reduced from three years to two years' rigorous imprisonment and in default of payment of fine, he will have to suffer one month's additional rigorous imprisonment. 12. Accordingly, both these appeals are partly allowed as follows:- (1) Sentence of accused-appellant Ramesh Chandra in D.B. Criminal Appeal No.145/2005 is reduced from three years to two years' rigorous imprisonment and in default of payment of fine, he will have to suffer one month's additional rigorous imprisonment. If in jail, he be released after completion of aforesaid sentence as per this judgment in appeal. He may be asked to surrender before the trial court to serve out the remaining sentence (if any). (2) Conviction of accused-appellant Raju @ Rajesh in D.B. Criminal Appeal No. 306/2007 is hereby altered from Section 302 IPC to part I of section 304 IPC and on this count, he will have to suffer ten years' rigorous imprisonment with a fine of Rs.1,000/- and, in default of payment of fine, he will have to suffer three months' additional rigorous imprisonment. His conviction and sentence under Section 324 IPC as ordered by the trial court is left undisturbed. Both of his substantive sentences shall run concurrently. 13. Accused-appellant Ramesh Chandra is on bail. He should surrender at the District Jail, Chittorgarh to serve out the remaining part of the sentence (if any) within fifteen days. Accused Raju is said to be in District Jail, Chittorgarh, he will also have to serve the remaining part of his sentence as per this judgment in appeal. Two copies of this judgment be sent to the District Jail, Chittorgarh, out of which one copy be kept for the office and other copy be given to accused-appellant Raju. One copy of this judgment along with record of the case be sent back to the trial court.