JUDGMENT : Mr. Prakash Gupta, J. 1. Kailash son of Amar Lal, by caste Balai, resident of Chomohalla was tried by the court of Additional Sessions Judge, Jhalawar for having committed murder of Man Singh, brother of Mangu Singh (P.W.1) the complainant on 12.3.2009 at 4:00 PM in the common passage falling within the jurisdiction of village Kutki. The trial Judge held the appellant Kailash guilty of offences under Sections 302 IPC and 4/25 of Arms Act and thereafter, sentenced the appellant as under:- Under section 302 IPC - to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo additional one year R.I. Under section 4/25 Arms Act- to undergo two years R.I. and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo additional six months R.I. Both the sentences were ordered to run concurrently. 2. In the jail appeal filed, the appellant has assailed the impugned judgment of conviction dated 22.10.2013 along with order of even date whereby he was sentenced as above. 3. Mangu Singh (P.W.1) brother of the deceased Man Singh is not an eyewitness of the occurrence. Information regarding the occurrence was relayed to him by Balu Singh (P.W.2), upon which he had submitted the written report (Exhibit-P/1), leading to registration of FIR No.40/09, registered at Police Station Gangdhar, District Jhalawar for the offence punishable under Section 302 IPC. 4. Mangu Singh (P.W.1) stated in the written report (Exhibit-P/1) that his brother Man Singh aged 35 years, on 12.3.2009 at about 11:00 AM, from Kitiya had gone to village Chomohalla. The complainant stated that he had also gone to Chomohalla to purchase clothes. There Shyam Bairagi son of Gokul Bairagi met him and informed that Kailash son of Amar Balai, resident of Chomohalla had gone to commit murder of Man Singh. Upon this, the complainant Mangu Singh in a jeep reached his village and carried search of Man Singh. The complainant stated that he had also gone to Chomohalla to purchase clothes. There Shyam Bairagi son of Gokul Bairagi met him and informed that Kailash son of Amar Balai, resident of Chomohalla had gone to commit murder of Man Singh. Upon this, the complainant Mangu Singh in a jeep reached his village and carried search of Man Singh. In the evening at 4:00 PM, Balu Singh (P.W.2) son of Amar Singh Rajput, resident of village Barawali arrived and told that Man Singh and Kailash are having a quarrel on the road in village Kutki, upon which the complainant Mangu Singh along with Narayan Singh (P.W.12) and Goverdhan Singh (P.W.7) from village Barawali, went three kilometers towards the road of village Kutki and found that the dead body of Man Singh was lying on the road and Man Singh was having a solitary incised injury below the neck. 5. As is evident, Mangu Singh (P.W.1), Goverdhan Singh (P.W.7) and Narayan Singh (P.W.12) are not eyewitnesses of the occurrence. Balu Singh (P.W.2) who relayed information to the complainant, in the court deposed that he has not witnessed the occurrence. 6. The prosecution in order to secure conviction of the appellant examined fourteen witnesses. 7. Before we refer to the testimony of the witnesses, it will be apposite to note medical evidence. 8. Dr. Ramesh Chand Khatik (P.W.11) on 3.3.2009, being posted as Medical Officer at Community Health Center Chomohalla, had conducted autopsy on the dead body of Man Singh. Since in the Post Mortem Report (Exhibit-P/12), injuries are not legible, we shall reproduce the same in vernacular from the testimony of Dr. Ramesh Chand Khatik, as under:- ckg~; ijh{k.k esa fuEu pksVs ikbZ%& pksV la0&1 LVsc oaM 2x1 bap xquk ds dsfoVh dh xgjkbZ rd] isV ij cka;h vkSj gkbiks dksafM~d {ks= ij FkkA pksV la0& 2 jxM 1 bap yach js[kkafdr ck;sa ,Dthyk ijA pksV la0& 3 jxM 1x1/2 bap cka;h dksguh ijA vkarfjd ijh{k.k ij ik;k fd frYyh ds vanj ,d dVko Fkk tks 3@4 bap x1/4 bap xgjk FkkA esjh jk; esa e`rd dh e`R;q 'kkWd ls gqbZ Fkh tks frYyh dh pksV ds dkj.k mRiUu gqvk FkkA 9. A perusal of the above injuries reproduced, reveal that injury no.1 is stab wound having dimension of 2”x1” cavity deep in the abdomen. Injuries no. 2 and 3 are abrasions. A perusal of the above injuries reproduced, reveal that injury no.1 is stab wound having dimension of 2”x1” cavity deep in the abdomen. Injuries no. 2 and 3 are abrasions. As per the opinion of the doctor, the cause of death was shock due to injury to small intestine and spleen. 10. Hemant Gautam (P.W.14) who was then posted as SHO, Police Station Gangdhar, District Jhalawar, deposed in the court that on 12.3.2009, Mangu Singh (P.W.1) had presented written report (Exhibit- P/1), on the basis of which, he had registered formal FIR (Exhibit-P/13) for the offence under Section 302 IPC. This witness stated that he had sent the dead body for post mortem. 11. Mangu Singh (P.W.1) in the court stated that on 12.3.2009, at 11:00 AM, his brother Man Singh had gone to Chomohalla. This witness had also gone there where Shyam Lal (P.W.6) informed him that Kailash had gone to Chomohalla to cause murder of Man Singh. This witness stated that in a jeep he came to his house and searched for his brother and while he was sitting at his house, Balu Singh (P.W.2) came on a tractor and informed that Kailash is giving beating to his brother Man Singh. Upon which, this witness accompanied by Narain Singh (P.W.12) and Goverdhan Singh (P.W.7) had gone to the spot and found that his brother Man Singh was lying murdered. 12. Balu Singh (P.W.2) in the court deposed that on 12.3.2009 at around 3:00 PM, on his tractor, he along with Suresh Kumar (P.W.13) and Vikram Singh (P.W.5) and five other persons were going towards Kitiya and saw that Kailash and Man Singh were quarreling. On tractor, this witness went to the village of the complainant Mangu Singh (P.W.1) and informed him that Man Singh and Kailash are quarreling. This witness stated that at 7:00 PM, he learnt that Man Singh has been murdered. 13. Thus, Balu Singh (P.W.2) is also not an eyewitness of the occurrence. On 12.3.2009 at 3:00 PM, this witness had only witnessed that Man Singh and Kailash were quarrelling. 14. Vikram Singh (P.W.5) who had accompanied Balu Singh (P.W.2), in the court deposed that he knew accused Kailash. This witness stated that he was going on a tractor when he saw that Kailash and Man Singh were giving abuses to each other. On 12.3.2009 at 3:00 PM, this witness had only witnessed that Man Singh and Kailash were quarrelling. 14. Vikram Singh (P.W.5) who had accompanied Balu Singh (P.W.2), in the court deposed that he knew accused Kailash. This witness stated that he was going on a tractor when he saw that Kailash and Man Singh were giving abuses to each other. They separated them and later in the evening this witness learnt that Kailash has murdered Man Singh. 15. So far actual murder is concerned, Vikram Singh (P.W.5) is witness of hearsay evidence. This witness had only seen Kailash and Man Singh having exchange of abuses and had separated them. Relying upon the testimony of Balu Singh (P.W.2), we can safely say that on 12.3.2009 at 3:00 PM, quarrel and exchange of abuses between the accused Kailash and deceased Man Singh had taken place. 16. Shyam Lal (P.W.6) in the court deposed that on the day of occurrence, at around 3:00 - 3:30 PM, he was going from his house to Chomohalla when accused Kailash met him. He was under the influence of liquor and was armed with knife. The accused Kailash asked this witness whether he had seen Man Singh. Upon which, this witness replied that he had not seen Man Singh. This witness stated that at that time, the accused Kailash told that he will commit murder of Man Singh. 17. We find that the testimony of Vikram Singh (P.W.5) and Shyam Lal (P.W.6) contain exaggerated version. Mangu Singh (P.W.1) in the court FIR (Exhibit-P/13) stated that Shyam Bairagi at around 11:00 AM, had informed him that Kailash had gone in search of Man Singh to commit murder, upon which, he had returned to his village. Vikram Singh (P.W.5) and Balu Singh (P.W.2) have deposed that on 12.3.2009 at around 3:00 PM, they had seen Kailash and Man Singh having a quarrel. Vikram Singh (P.W.5) was confronted with his statement (Exhibit-D/2) recorded on 13.3.2009 under Section 161 Cr.P.C., as what has been deposed by him in court, those facts were not stated before the police. Shyam Lal (P.W.6) has also been confronted with his statement (Exhibit-D/3) wherein it has not been recorded that the accused Kailash was under the influence of liquor. Vikram Singh (P.W.5) was confronted with his statement (Exhibit-D/2) recorded on 13.3.2009 under Section 161 Cr.P.C., as what has been deposed by him in court, those facts were not stated before the police. Shyam Lal (P.W.6) has also been confronted with his statement (Exhibit-D/3) wherein it has not been recorded that the accused Kailash was under the influence of liquor. This witness in the court had admitted that the police met him and in his statement he had not disclosed the police regarding the quarrel between Kailash and Man Singh. 18. Goverdhan Singh (P.W.7) in the court stated that on the day of occurrence, Suresh Luhar (P.W.13), Balu Singh (P.W.2) and Vikram Singh (P.W.5) came to his house and informed that Kailash and Man Singh are quarreling and they went to the spot and they found the dead body of Man Singh. 19. Bhairu Singh (P.W.8) has appeared in the court as an eyewitness of the occurrence. This witness stated that the accused Kailash and Man Singh were quarreling. Then accused Kailash took a knife and gave a blow to Man Singh. This witness stated that the accused Kailash gave knife blow in the chest and abdomen of deceased Man Singh. This witness in cross-examination admitted that Man Singh deceased was with him and they both had taken liquor. This witness further admitted that Man Singh is his relative in brotherhood. This witness further admitted that after knife blow was caused to the deceased Man Singh, he crossed the Chambal river and went to his village. 20. The statement of Bhairu Singh (P.W.8) was recorded on the next day of occurrence i.e. on 13.3.2009. Thus, the entire prosecution case rests on the testimony of Bhairu Singh (P.W.8). He is solitary eyewitness of the occurrence. 21. Mr. Sunil Tyagi, the learned counsel for the appellant, appointed by the Legal Service Authority, has urged before us that Bhairu Singh (P.W.8) has not witnessed the occurrence, he was introduced as an eyewitness on the next day. It is contended that the conduct of Bhairu Singh (P.W.8) is improbable and unnatural. It is canvassed by the learned counsel for the appellant that Bhairu Singh (P.W.8) admitted that deceased Man Singh was related to him in brotherhood. It is contended that the conduct of Bhairu Singh (P.W.8) is improbable and unnatural. It is canvassed by the learned counsel for the appellant that Bhairu Singh (P.W.8) admitted that deceased Man Singh was related to him in brotherhood. It is contended that it is not believable that after injuries were caused to Man Singh, Bhairu Singh (P.W.8) will not intervene or extend medical help to the deceased Man Singh. The learned counsel for the appellant has contended that there was no reason for Bhairu Singh (P.W.8) to leave deceased Man Singh at the spot and leave the place of occurrence for his village. It is urged that the very fact that the statement of Bhairu Singh (P.W.8) was recorded on the next day, is sufficient to infer that he has not witnessed the occurrence, but was introduced later as an eyewitness. 22. We find merit in the above submissions made by the learned counsel for the appellant. 23. Bhairu Singh (P.W.8) had not informed relations of deceased Man Singh that the present appellant Kailash had caused injuries to Man Singh. He has also not relayed the information to them regarding murder. It has come in evidence that Mangu Singh (P.W.1), when information was relayed by Vikram Singh (P.W.5) and Balu Singh (P.W.2) had reached at the spot and found that dead body of deceased Man Singh was lying at the spot. The very fact that Bhairu Singh (P.W.8) had not stayed at the spot and had not relayed the information to police or to the relations, make his presence at the spot doubtful. Having witnessed the occurrence, Bhairu Singh (P.W.8) left for his village leaving the deceased Man Singh at the spot unattended and later surfaced as an eyewitness on the next day. Therefore, to us, it is not safe to rely upon the testimony of Bhairu Singh (P.W.8) the solitary eyewitness. The conduct of this witness makes him totally unreliable witness. 24. So far testimony of Shyam Lal (P.W.6) is concerned, we cannot also place implicit reliance upon the same. Mangu Singh (P.W.1) in the FIR has stated that at 11:00 AM, Shyam Lal (P.W.6) had informed him that Kailash has gone in the search of Man Singh to cause his murder. Shyam Lal (P.W.6) in the court has stated that the accused Kailash met him at around 3:30 PM. Mangu Singh (P.W.1) in the FIR has stated that at 11:00 AM, Shyam Lal (P.W.6) had informed him that Kailash has gone in the search of Man Singh to cause his murder. Shyam Lal (P.W.6) in the court has stated that the accused Kailash met him at around 3:30 PM. Be that as it may, we find that in the statement (Exhibit-D/3) made by Shyam Lal (P.W.6) under Section 161 Cr.P.C. to police, it is not recorded that Kailash was under the influence of liquor. This witness has stated in the court that he had gone to hospital. Police met him there but he has not disclosed to the police regarding quarrel. We shall reproduce the following portion from the testimony of Shyam Lal (P.W.6), as under:- ^^eSa vLirky Hkh x;k FkkA ogka ij iqfyl Fkh iqfyl gh yk'k dks ysdj vkbZ FkhA iqfyl feyh ml le; eSaus iqfyl dks c;ku ugha fn;s Fks vkSj >xM+s okyh ckr ugha crkbZ FkhA ?kVuk okys fnu vLirky esa Fkkusnkjth Fks vkSj 8&10 iqfyl okys vkSj FksA eSaus fjiksVZ fy[kdj ugha nh FkhA Fkkusnkjth us gels iwNrkN dh FkhA eq>s bl ckr dk irk ugha gS fd ekaxwflag us ml le; Fkkusnkjth dks fjiksVZ nh Fkh ;k ughaA ml le; vLirky esa ckyw] lqjs'k] fodze dksbZ Hkh ugha FksA^^ 25. However, we find that Balu Singh (P.W.2) and Vikram Singh (P.W.5) are independent witnesses. They had seen the accused Kailash and deceased Man Singh quarreling and having exchange of abuses. They separated Kailash and Man Singh and had left the spot. So far the statement made by Vikram Singh (P.W.5) that they got the accused Kailash and deceased Man Singh separated is concerned, no reliance can be placed on that part of the statement as the same is not noted in the statement (Exhibit-D/2) recorded under Section 161 Cr.P.C. Thus, from the testimony of the witnesses and facts gathered which have emerged we can safely assume that the deceased Man Singh and accused Kailash were under the influence of liquor. They were having exchange of abuses and without any premeditation, on the spur of moment accused Kailash had caused a solitary blow in the abdomen of the deceased Man Singh. This fact is corroborated by recovery of knife from the accused. 26. They were having exchange of abuses and without any premeditation, on the spur of moment accused Kailash had caused a solitary blow in the abdomen of the deceased Man Singh. This fact is corroborated by recovery of knife from the accused. 26. We may emphasise again that in statement (Exhibit-D/2), recorded by the police under Section 161 Cr.P.C., Vikram Singh (P.W.5) had only stated that after seeing Kailash and Man Singh were giving abuses to each other, they had left the spot and they had no talk with them. Thus, we believe Balu Singh (P.W.2) and Vikram Singh (P.W.5 ) to the extent that they had witnessed Kailash and Man Singh having quarrel and exchange of abuses. 27. If the above part of the evidence of the witnesses is believed, and same is taken into consideration along with the recovery of knife, there is no escape but to hold that without any premeditation, on the spur of moment, accused Kailash had caused solitary blow after there was an altercation between accused and deceased leading to exchange of abuses. 28. We hold that the appellant is not guilty of culpable homicide amounting to murder, hence, the offence will not fall under Section 302 IPC but under Section 304 Part-II IPC. Consequently, we convert the conviction of the appellant Kailash from Section 302 IPC to Section 304 Part-II IPC. 29. Due to conversion of offence, we set aside sentence of life imprisonment awarded by the trial court upon the appellant for the offence under Section 302 IPC and having convicted the appellant for the offence under Section 304 Part-II IPC, we sentence him to undergo five years R.I. Furthermore, for having believed the recovery of weapon, we uphold the conviction and sentence of the appellant for the offence under section 4/25 of Arms Act. As ordered by the trial court, sentence awarded under Section 4/25 of Arms Act shall run concurrently with the sentence awarded by us upon the appellant under Section 304 Part-II IPC. Consequently, upon conversion of the offence and modification in the sentence, the present appeal is disposed of in above terms.