JUDGMENT : Gopal Krishan Vyas, J. In this Cr. Jail Appeal filed by the accused appellant Khemla S/o Dudiya Meena, the appellant is challenging judgment dated 10.4.2006 passed by the Addl. District & Sessions Judge (Fast Track) No. 1, Udaipur in Sessions Case NO.171/2005 whereby the learned trial court convicted the accused appellant for offence under Section 302 IPC and passed sentence for life imprisonment with fine of Rs. 2,000/- and in default of payment of fine to further undergo 6 months simple imprisonment and held him guilty under Section 4/25 of the Arms Act and passed sentence for one year simple imprisonment along with fine of Rs. 500/- and in default of payment of fine to further undergo two months simple imprisonment. 2. As per brief facts of the case on 24.9.2005 at about 10.30 pm the complainant Deva (PW-1) gave verbal information alognwith two persons Kaliya and Bhuriya at Police Station Parsola, District Udaipur that today in the night at about 8'O Clock he and his elder brother Khemla and nephew Virma were in their agricultural field for taking care of crop of corn, at that time, I was sleeping on corn and in front of me near Dhuni his brother accused Khemla and nephew Virma were talking, after some time they stand up to go at home but both of them started quarreling and used filthy words against each other. Further, it is stated that he made efforts for their reconciliation but all of sudden accused Khemla inflicted injury by knife to his nephew the deceased Virma in his stomach and chest and due to those infliction injuries Virma fell down and accused Khemla run away from the place of occurrence. It is further stated that due to darkness in the light of fire he find that there were injuries upon different parts of body of the deceased Virma and blood was coming out from the injuries. 3. As per information, after the incident upon calling his nephew Rama and Kesariya came on spot to whom the complainant informed that Khemla inflicted injury by knife to Virma and sent Rama to the village for calling villagers. Upon information the villagers Dholiya, Kaliya and other persons came and found that Virma died on spot. 3. As per information, after the incident upon calling his nephew Rama and Kesariya came on spot to whom the complainant informed that Khemla inflicted injury by knife to Virma and sent Rama to the village for calling villagers. Upon information the villagers Dholiya, Kaliya and other persons came and found that Virma died on spot. The complainant informed the SHO Police Station, Parsola that dead body of Virma is lying on spot, therefore, action may be taken against accused Khemla. 4. Upon aforesaid verbal information, the SHO Police Station, Parsola registered FIR no. 111/2015 (Ex.P/6) under Section 302 IPC and under Section 4/25 of the Arms Act against the accused appellant and commenced investigation. 5. In the investigation, first of all site was inspected by the investigating officer and body of the deceased Virma was taken to the hospital for post mortem. After post mortem, the body of the deceased was handed over to the family members of the deceased Virma for cremation. 6. The investigation officer obtained post mortem report (Ex.P/16) in the investigation and arrested the accused appellant Khemla on 25.9.2005 vide Ex.P/24 and upon his information under Section 27 of the Evidence Act, the knife and boot were recovered on 26.9.2005 at about 12.15 pm vide Ex.P/11 in front of two witnesses Shanti Lal (PW - 17) and Kaniya (PW - 13). 7. After completion of investigation, police filed challan against the accused appellant under Section 302 IPC and under Section 4/25 of the Arms Act in the court of Addl. Chief Judicial Magistrate, Dhariyawad from where the case was committed to the court of District & Sessions Judge, Udaipur but later on transferred to the court of learned Addl. District & Sessions Judge (Fast Track) No. 1, Udaipur where trial took place. 8. In the trial, charges were framed against the accused appellant under Section 302 IPC and under Section 4/25 of the Arms Act. Thereafter, opportunity was granted to the prosecution to lead evidence. To prove the prosecution case, statements of 19 witnesses were recorded from the prosecution side and after recording evidence of prosecution, the statement of accused appellant were recorded under Section 313 Cr.P.C., but in spite of granting opportunity, no evidence was produced in defence by the appellant. 9. Thereafter, opportunity was granted to the prosecution to lead evidence. To prove the prosecution case, statements of 19 witnesses were recorded from the prosecution side and after recording evidence of prosecution, the statement of accused appellant were recorded under Section 313 Cr.P.C., but in spite of granting opportunity, no evidence was produced in defence by the appellant. 9. After recording evidence, the learned trial court heard final arguments and convicted the accused appellant for offence under Section 302 IPC and under Section 4/25 of the Arms Act and passed sentence aforesaid. 10. At the threshold learned counsel for the appellant submits that the accused appellant is not challenging the incident but argued that finding of the learned trial court so as to convict the accused appellant under Section 302 IPC is erroneous because as per the facts of the case the deceased and the accused appellant were closed relatives and occurrence took place suddenly, there was no pre-meditation, so also, there is no evidence of motive on record, therefore, the conviction under Section 302 IPC is not sustainable because prosecution has failed to prove motive, therefore, the conviction may be converted from offence under Section 302 IPC to under Section 304 Part I IPC because it is a case of culpable homicide not amounting to murder. 11. In support of his arguments, the learned counsel for the appellant submits that as per the statement of PW-2 Deva accused appellant as well as deceased and complainant himself are closed relatives and they were sitting together in their agricultural field for protection of their crop and all of sudden quarrel took place and in spur of moment the injuries were caused by knife to the deceased, which resulted into death. Learned counsel for the appellant argued that as per evidence on record at best for commission of offence under Section 304 Part I IPC is made out and no offence under Section 302 IPC is made out. Further, it is argued that as per the statement of author of the FIR (PW-2) the occurrence took place all of sudden and before inflicting injury the family members were sitting together in the agricultural field, therefore, even if entire evidence of the prosecution is accepted, then also, it is not a case for conviction under Section 302 IPC. Further, it is argued that as per the statement of author of the FIR (PW-2) the occurrence took place all of sudden and before inflicting injury the family members were sitting together in the agricultural field, therefore, even if entire evidence of the prosecution is accepted, then also, it is not a case for conviction under Section 302 IPC. More so, upon present set of evidence the accused appellant can be held guilty for offence under Section 304 Part I IPC. 12. In support of his argument, learned counsel for the appellant invited our attention towards the judgment of the Hon'ble Supreme Court in the case of State of H.P. v. Ram Pal reported in (2006) 2 SCC (Cri.) 165, Arjun v. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506, Dayanand v. State of Haryana reported in 2008 Cri. L.J. 2975 and judgment of this Court in D.B. Cr. Appeal NO.291/2010 : Meetha Lal v. State of Rajasthan, decided on 9.12.2015 and submits that on the basis of above judgments, the conviction of the accused appellant may be altered from offence under Section 302 IPC to Section 304 Part I IPC. 13. Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that as per the statement of PW - 2 Deva (eye witness) although the occurrence took place in the spur of moment but looking to the number of injuries and nature of the injuries upon vital part of the body even if the deceased was assaulted without any pre-meditation in sudden quarrel, the intention of accused appellant can be gathered from the nature of injuries and upon the fact that there were repeated blows upon the body of the deceased by the accused appellant. Therefore, the prayer of the appellant to convert the conviction from offence under Section 302 IPC to 304 Part I IPC may kindly be rejected. It is also argued that facts and evidence of each case is required to be assessed separately at the time of deciding the particular case. In this case, as per the post mortem report (Ex.P/16), 6 injuries were found upon the body of the deceased and cause of death was shock due to excessive hemorrhage from penetrating injury to right lung and liver and as per the opinion of Doctor those injuries were sufficient to cause death. In this case, as per the post mortem report (Ex.P/16), 6 injuries were found upon the body of the deceased and cause of death was shock due to excessive hemorrhage from penetrating injury to right lung and liver and as per the opinion of Doctor those injuries were sufficient to cause death. Therefore, it is not a case upon evidence on record that prayer of the appellant to convert the conviction from offence under Section 302 to under Section 304 Part I IPC can be accepted. 14. In support of his argument, learned Public Prosecutor invited our attention towards the judgment in the case of Chenda @ Chanda Ram v. State of Chhatisgarh reported in (2013) 12 SCC 110 and submits that the instant appeal may kindly be dismissed. 15. After hearing the learned counsel for the parties, we have minutely examined the entire evidence in the light of the arguments raised by the learned counsel for the parties. 16. In this case, PW-2 Deva who lodged the FIR gave following statement before the court in examination in chief which reads as under: " djhc nks rhu ekg igys dh ckr gS] jkr ds vkB cts gS] [kseyk] fojek o eSa Lo;a rhuksa [ksr ij eDdh dh j[kokyh dj jgs FksA fojek o [kseyk] nksuksa /kw.kh ds ikl cSBdj vkx rki jgs Fks fd ,d nwljs ls >xM+k djus yxs] tehu ds ckjs esa ckr dj jgs Fks] fQj ?kj tkus ds fy, dgk rks ,d nwljs us vkil esa vkxs tkus dks dgk o dgk fd rw dkdk gS vkxs py] [kseyk us fojek ds NqjhZ ekj nh tks fojek ds isV o Nkrh ij yxh FkhA fojek ds [kwu vk x;k Fkk] [kseyk Hkkx x;k FkkA fQj jkek dks vkokt nsdj cqyk;k fQj fojek dks gkWLihVy ys tkus yxs fd fojek dh ekSds ij gh e`R;q gks xbZA fojek ds gkFk ij Hkh yxh FkhA fQj eSa Fkkus ij bRryk djus x;k] bRryk izn'kZ ih&5 ij esjk vaxwBk fu'kkuh gSA " 17. In cross examination, the witness PW-2 Deva stated that:- " fojek esjs lxs cM+s HkkbZ dtksfM;k dk yM+dk gSA [ksr ij j[kokyh djrk gwWaA eSa esjs [ksr ij j[kokyh djrk gwWaA ;g dguk lgh gS fd gekjs edku vyx&vyx gSaA eSa jkr fnu [ksr ij gh jgrk gwWaA eSa ?kj ij [kkuk [kkus ds fy;s tkrk gwWaA eSa ml fnu [kkuk [kkus ds fy;s ugha x;k FkkA jkr dks nl cts [kkuk [kkus ds fy;s tkmWaxk D;ksafd Qly tkuoj [kk tkrs gSa [kseyk esjk lxk HkkbZ gSA gekjs tehu dk vkil esa caVokjk gks x;k gSA caVokjs dh fy[kk i<+h ugha dh FkhA tehu ds ckjs esa ogka ij fojek us vkSj eSaus dksbZ ckr ugha dh FkhA ;g dguk lgh gS fd eSa lks;k gqvk FkkA ;s nksuksa ?kj tk jgs FksA ;s FkksM+h nwj ij x;s Fksa eSa vkokt nwa vkSj lqu ys mruh nwjh ij x;s FksA ml le; eSa [kkV ij lks;k gqvk FkkA vkokt lqudj eSa ogka Hkkx dj x;k FkkA eSa x;k Fkk ml le; fojek uhps fxjk gqvk iM+k FkkA eSa x;k rc fojek ls [kseyk 10 QhV dh nwjh ij tk pqdk FkkA ml le; jkr dks va/ksjk FkkA ogka ij vkx tykdj cSBk Fkk blfy;s [kseyk dks igpkuk FkkA " 18. PW - 5 Rama gave following statement in his examination in chief, which reads as under: " esjs dkdk nsok esa eq>s vkokt yxkbZ Fkh fd jkek jkek /kkets nkSM+uk fQj eSa nkSM+dj esjs dkdk nsok ds ;gka ij x;k FkkA esjs dkdk us [ksr ij eq>s vkokt yxkbZ Fkh rks eSa [ksr ij nkSM+dj Mkxys ds ogka ij x;k FkkA [ksr esa eDdh dh Qly FkhA esjs dkdk nsok us eq>s crk;k Fkk fd [kseyk us fojek ds Nqjh |ksai nh gSA Nkrh esa xys ls uhps [kwu fudy jgk FkkA eSa x;k Fkk rc Hkh [kwu fudy jgk FkkA fojek us esjs dks cksyk Fkk fd esjs dks vLirky esa ys tkvksaA fQj eSa nkSM+dj xkao esa x;k Fkk vkSj iqfj;k dks cqykdj yk;k Fkk vkSj Hkh xkao ds yksx ihNs vk x;s FksA fQj fojek dks vLirky ys x;s FksA vkSj 10-20 feuV ckn fojek [kRe gks x;k FkkA FkksM+k cgqr >xM+k FkkA tgka ij yM+kbZ >xM+k gqvk Fkk ogka ij [kwu iM+k gqvk Fkk] fojek dk pIiy vkSj f[keyk dk cwV iM+k gqvk FkkA ,d cwV iM+k FkkA " 19. The witness PW - 3 Bhuriya and PW - 7 Dhaniya turned hostile and did not support the prosecution case. PW - 4 Kaliya and PW - 6 Dhuliya are hear say witnesses. 20. The above evidence on record clearly revealed that the day on which the occurrence took place the deceased Virma, accused appellant Khemla and PW - 2 Deva were sitting together in the agricultural field to protect their crop. PW - 2 Deva and accused appellant Khemla are the real brothers and Virma (deceased) was nephew of complainant and accused Khemla. Meaning thereby all the 3 persons present on spot were closed relatives. They were sitting together and all of sudden quarrel took place in between the deceased Virma and accused appellant Khemla due to hot conversation. At that time, 4 apparent injuries were inflicted upon the body of the deceased by the accused appellant out of which two were penetrating wounds, two were incised wounds and two other were contusions and as per the opinion of the doctor in post mortem report (Ex.P/16) the cause of death was shock due to excessive hemorrhage from penetrating injury to right lung and liver. 21. Upon assessment of the entire evidence, we are of the firmed opinion that occurrence took place all of sudden and before occurrence complainant, deceased and the accused appellant were sitting together because they were closed relatives. Due to some dispute of land, some quarrel took place due and due to said quarrel, injuries were caused by the accused appellant to the deceased. 22. The doctor gave opinion in the post mortem report (Ex.P/6) that injury no. 3,4,5 and 6 were simple in nature and injury no. 1 and 2 were sufficient to cause death. 23. In the case of State of H.P. v. Ram Pal (supra), the Hon'ble Supreme Court, gave following finding upon the identical facts. The paras nos. 5 to 8 of the said judgment are as follows: "5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarrelling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back. 6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW - 3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased. 7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice. 8. For the reasons stated, this appeal fails hence dismissed." 24. Hon'ble Supreme Court in the case of Dayanand (Supra) considering the identical issue that in absence of motive or intention and upon the fact that there was no repeated blow upon the vital part of the body, made following adjudication which reads as under :- "10. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 11. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done - Intention (a) with the intention of causing (1) with the intention of death; or causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) 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 Knowledge (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. **** 12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 13. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature to cause death" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature." 25. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature." 25. In the case of Arjun v. State of Maharashtra (supra) the following adjudication is made by the Hon'ble Supreme Court. The paras nos. 17 and 18 of the said judgment is as under: "17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so. 18. We are informed that the appellant is in custody since 30.07.2003. 0.07.2003. In our view, custodial sentence of 10 years to the accused-appellant would meet the ends of justice and it is ordered accordingly. The appeal is accordingly disposed of, altering the sentence awarded." 26. We have considered the above judgments upon the facts of the present case, so also, the judgment cited by the learned Public Prosecutor in the case of Chenda @ Chanda Ram (supra). 27. After perusing the aforesaid judgments in the light of the evidence of present case, we are of the opinion that even if the entire evidence is accepted in to then also, it emerges from the statements of eye witnesses that complainant (eye witness, accused appellant and deceased Virma are closed relatives, they were sitting together for protection of their crop in their agricultural field and all of sudden quarrel took place in which injuries were inflicted by the accused appellant to the deceased by knife. Meaning thereby, it is a case in which there was no pre-meditation and the act was committed in heat and passion. Meaning thereby, it is a case in which there was no pre-meditation and the act was committed in heat and passion. Therefore, we deemed it appropriate to accept the prayer of the accused appellant to convert the conviction from offence under Section 302 IPC to Section 304 Part I IPC while maintaining the conviction under Section 4/25 of the Arms Act. 28. Consequently, on the basis of above discussions, the instant jail appeal is hereby partly allowed. The impugned judgment dated 10.4.2006 passed by the learned Addl. Sessions Judge (Fast Track) No. 1, Udaipur in Sessions Case No. 171/2005 is hereby modified and the conviction and sentence of the accused appellant under Section 302 IPC is set aside and he is held guilty for offence under Section 304 Part I IPC and punished with the sentence of 10 years RI with fine of Rs. 5,000/- while maintaining the conviction and sentence for the offences under Sections 4/25 of the Arms Act.