ORDER : Gopal Krishan Vyas, J. In this Cr. Jail Appeal filed by the accused appellant Bhuriya S/o Prabhu, the judgment dated 6.1.2014 passed by the Addl. District & Sessions Judge, Pratapgarh in Sessions Case No. 1/2012 is under challenge 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. 10,000/- and in default of payment of fine to further undergo 6 months RI. 2. As per brief facts of the case on 17.11.2011, complainant Kalu submitted an oral report stating therein that today one Laxman S/o Moti Meena, resident of Iton Ka Talab, Relafala and his friend both were going on bicycle at in-laws house of Laxman situated at village Munduratalab Jodaliya Falla where after taking the insane daughter of Laxman they all went to the sister of Aganwadi and after taking medicine, dropped the daughter of Laxman Singh at his in-laws house and they all proceeded to come back. As per the complainant when they reached near the house of Ramchandra S/o Keshu Ram Meena situated at Railfala, at that time the accused Bhuriya came on his bicycle in front of the cycle of Laxman and on askance of Laxman Singh, some altercation took place between them resulting into knife blow over Laxman thereby Laxman was died on spot. 3. On the basis of the aforesaid oral report, the SHO Police Station, Dholapani registered FIR No. 70/2011 under Section 302 IPC and after concluding the investigation, filed charge-sheet against the accused appellant under Section 302 IPC in the court of Additional Judicial Magistrate, Chhotisadari. 4. In the trial, charges were framed against the accused appellant under Section 302 IPC. Thereafter, opportunity was granted to the prosecution to lead evidence. To prove the prosecution case, statements of 11 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., 1973 but inspite of granting opportunity, no evidence was produced in defence by the appellant. 5. After recording evidence, the learned trial court heard final arguments and convicted the accused appellant for offence under Section 302 IPC and passed sentence aforesaid. 6. 5. After recording evidence, the learned trial court heard final arguments and convicted the accused appellant for offence under Section 302 IPC and passed sentence aforesaid. 6. 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 it is amply clear that the incident took place in spur of moment and the accused appellant in heat and passion inflicted only one injury upon the deceased and there was no repeated blow. Thus, the learned counsel for the accused appellant submits hat there was no motive and intention of the accused appellant to kill the deceased, 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. 7. 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, 2016 (1) Cr.LR. (Raj.) 168, 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. 8. Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that as per the statement of PW-1 Kalu (eye witness) although the occurrence took place in the spur of moment but looking to the fact that since the injury was caused by the accused appellant on the chest of the deceased which is 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. Therefore, it is submitted that the 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/10), the cause of death is fatal injury on hear which was sufficient to cause death in its course and as per the opinion of Doctor this injury was 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. 9. In support of his argument, learned Public Prosecutor invited our attention towards the judgment in the case of Chenda @ Chanda Ram v. State of Chhattisgarh reported in (2013) 12 SCC 110 and submits that the instant appeal may kindly be dismissed. 10. 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. 11. The entire prosecution case is based upon testimonies of 11 prosecution witnesses. The FIR was registered on the basis of complaint filed by PW.-1 Kalu. 10. 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. 11. The entire prosecution case is based upon testimonies of 11 prosecution witnesses. The FIR was registered on the basis of complaint filed by PW.-1 Kalu. The said witness specifically stated in his statement as infra: ^^eSaa e`Rd y{e.k dks tkurk gwa tks esjk fe= FkkA vkt ls djhc pkj ekg iwoZ dh ckr gSA eSaa vkSj y{e.k nksuksaa y{e.k ds llqjky xkao enqjk rkykc tksMfy;k Qyk x;s FksA tgkaa ls y{e.k dh cPph tks djhc 3&4 fnu dh Fkh mldks ysdj ekykQyk dh vkaxuckMh esaa flLVj ds ogkaa ij ys x;s Fks D;ksfd muds QfUl;k gks jgh FkhA ulZ eSMe us ,d V;qc ,oaa nokbZ nh Fkh fQj cPph dks okil y{e.k ds llqjky NksM++ fn;k vkSj fQj okil lkbZfdy ls jokuk gksdj ge nksuksaa vius xkao jsykQyk tk jgs FksA jkLrs esaa jkepUnz eh.k ds edku ds ikl vks; rks lkeus ls eq- gkftj vnkyr Hkqfj;k lkbZfdy ls vkrk gqvk fn[kkA ml le; fnu dh nks cts FksA eqfYte lkbZfdy ysdj gekjs mij vk;k bl ij e`Rrd y{e.k us dgk fd vHkh fnu gS jkr ugh tks rq mij p< jgk gSA bl ij eqfYte Hkqfj;k us dgk fd ;g dgus okyk rq dkSu gSA ;g dgrs gh Hkqfj;k us lkbZfdy [kMh dh vkSj Hkqfj;k us y{e.k dh isV idM yh] eSus chp cpko fd;k vkSj nksuks le>k gh jgk FkkA rHkh Hkqfj;k us ,d rjQ Qsad fn;k vkSj Hkqfj;k us vius ikl ls pkdq fudkyk vkSj pkdq ls y{e.k ij okj dj fn;kA y{e.k ds ck;h rjQ ‘kVZ dh tsc ls ogkaa ij ck;h vksj Hkqfj;k us pkdw ekj fn;k ftlls y{e.k ds [kwu fudyus yx x;s] fQj y{e.k FksMk nkSM+k vkSj fups fxj x;k FkkA Hkqfj;k us lkbZfdy ogha NksM nh o pkdq ysdj ekSds ls Hkkx x;kA fQj eSa nksM+dj x;k vkSj y{e.k ds firk eksrhyky dks cqyk;k mlds cMss firk pks[kk dks Hkh cqyk;k FkkA fQj ge lHkh ekSds ij vk;ssA rc rd y{e.k ej pqdk FkkA fQj pks[kk Hkh iqfyl esa lwpuk nh ftl ij iqfyl ekSds ij vk;h FkhA lkbM nsus ds ekeys dks ysdj Hkqfj;k us fookn fd;k gSA** 12. Upon perusal of above statements, there is no doubt that occurrence took place all of sudden for the dispute of giving side to the cycle and allegation of the complainant is for inflicting only one injury by knife to the person of deceased. The statement of PW-.1-Kalu is supported by other witnesses viz. PW-.3-Chokha, PW-.56-Moti and upon perusal of statements of all these three witnesses, it can be said that prosecution has proved the allegation against the appellant for inflicting one injury by knife due to some quarrel of giving side, but at the same time, it is required to be observed that there is no evidence of motive or intention on record, the occurrence took place all of sudden due to quarrel in between deceased and the appellant and only one injury was inflicted to the deceased and thereafter he ran away. There is no allegation of inflicting repeated injuries in all the three statements of eyewitnesses. 13. The other witness of recovery of knife viz. PW.-8 Roopa and PW-.9-Chokha categorically proved the recovery of knife as per information given by accused appellant vide Ex.P/17. The witness PW-.7-Rajendra Singh proved that he was working as Head constable in the office of Superintendent of Police, Pratapgarh in case No. 70/2011 registered under Section 302 of IPC at Police Station Dholapani, the recovered articles were sent through communication Ex.P/14. 14. PW.-10 Ramgopal was posted as S.H.O., Police Station Dholapani. The said witness categorically proved the entire investigation conducted by him including recovery of knife at the instance of accused appellant. 15. PW.4- Dr. Ritesh Jain, who conducted the postmortem of the deceased, categorically stated in his statements that only one injury was found on the person of deceased having dimension of 1 x 1 x 4 inch upon chest and that injury was sufficient to cause death. In the cross-examination, it is categorically stated by said witnesses that no other injury was found upon body of the deceased. Meaning thereby the prosecution has proved its case to the extent that in the quarrel, which took place all of sudden, one injury was inflicted by the accused appellant to the deceased and thereafter he ran away. 16. In the cross-examination, it is categorically stated by said witnesses that no other injury was found upon body of the deceased. Meaning thereby the prosecution has proved its case to the extent that in the quarrel, which took place all of sudden, one injury was inflicted by the accused appellant to the deceased and thereafter he ran away. 16. After assessing the entire evidence of the case, we are of the opinion that finding recorded by learned trial court for offence under Section 302 IPC is not sustainable because the occurrence took place all of sudden and allegation of the complainant is for inflicting of one injury, therefore, the offence cannot travel beyond offence under Section 304 Part-I of IPC. 17. We have perused the judgments cited by the learned counsel for the appellant. 18. In the case of State of HP 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. 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." 19. 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. 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." 20. 18. We are informed that the appellant is in custody since 30.07.2003. 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." 20. In view of above discussion, we are of the opinion that finding of guilt recorded by the trial court against the appellant for offence under Section 302 of IPC is not sustainable in law because as per evidence on record offence cannot travel beyond offence under Section 304 Part-I of IPC. 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. 21. Consequently, on the basis of above discussions, the instant appeal is hereby partly allowed. The impugned judgment dated 6.1.2014 passed by the learned Additional District & Sessions Judge, Pratapgarh in Sessions Case No. 1/2012is 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. 2,000/-, in default of payment of fine, to further undergo three months additional rigorous imprisonment.