JUDGMENT : Dinesh Chandra Somani, J. 1. The instant criminal appeal under Section 374 of CrPC has been preferred by the accused/appellant Mahesh Chand @ Pisya S/o Shri Shambhu Dayal against the judgment of conviction and order of sentence dated 19/05/2011 passed by Special Judge, SC/ST (Prevention of Atrocities) Cases, Dausa in Sessions Case No. 72/2009 (104/09), whereby the appellant has been convicted and sentenced as under :- For offence under Section 302 of IPC to undergo life imprisonment and to pay a fine of Rs.1,000/-. In default of payment of fine to further undergo six months’ simple imprisonment. For offence under Section 323 of IPC to pay a fine of Rs.1,000/-. In default of payment of fine to further undergo six months’ simple imprisonment. 2. Prosecution story in brief is that on 18/10/2009 Jatashankar Sain (PW-2) submitted a written report (Ex.P-11) to Shrifal Meena (PW-3), ASI, Kotwali, Dausa in SMS Hospital, Jaipur stating therein that that day on 18/10/2009 at about 9.30 AM, Govind Narain Sain was sitting in the shop of his elder brother Shambhu Dayal (PW-6). P.C. Hair Dresser was situated opposite to shop of elder brother of the informant. Mahesh Chand Sain @ Pisya son of Shambhu Dayal Sain of P.C. Hair Dresser armed with scissor, suddenly came from his shop on the shop of Ram Lakhan Hair Dresser, who using filthy language, attacked Govind Narain Sain. Due to which, Govind Narain sustained serious injury. He was taken to Government Ramkaran Joshi Hospital, Dausa, where from he was referred to Jaipur. During treatment in SMS Hospital, Jaipur, Govind Narain expired. While intervening between them, Shambhu Dayal (PW-6), elder brother of Govind Narain also sustained injuries. Kailash Chand Sain and Ramji Lal Sharma were present at the time of this incident. 3. On this written report, FIR No. 712/2009 was registered in Police Station Kotwali, Dausa for offence under Section 341, 323 and 302 of IPC and investigation commenced. 4. During investigation, panchayatnama of dead body was prepared and autopsy on the corpse of the deceased Govind Narain was performed in SMS, Hospital, Jaipur. The corpse was handed over to his elder brother Jatashankar for last rites. Blood stained clothes of the deceased were seized and sealed. Site plan of the place of occurrence was prepared. Statements of witnesses were recorded under Section 161 of CrPC. Injury report of injured Shambhu Dayal Sain got prepared. The corpse was handed over to his elder brother Jatashankar for last rites. Blood stained clothes of the deceased were seized and sealed. Site plan of the place of occurrence was prepared. Statements of witnesses were recorded under Section 161 of CrPC. Injury report of injured Shambhu Dayal Sain got prepared. Samples of blood smeared soil and control soil were taken from the place of occurrence and were sealed separately. A pair of blood stained chappals and a single chappal were seized and sealed. The accused Mahesh Chand was arrested. A blood stained scissor and blood stained clothes worn by the accused at the time of incident, were seized from the house of the accused, at his instance in presence of witnesses, in consequence of disclosure statement given by him, and were sealed on the spot. 5. After usual investigation, police filed charge-sheet against the accused/appellant for offence under Section 341, 323 and 302 of IPC in the Court of Chief Judicial Magistrate, Dausa who committed the case to the Court of Sessions Judge, Dausa. Later on Sessions Judge, Dausa transferred the case to the Additional Sessions Judge (SC/ST Cases), Dausa. 6. The learned trial Court framed charges under Section 302 and 323 of IPC against the accused/appellant. Charges were read over and explained to the accused/appellant, who pleaded not guilty and sought to be tried. 7. In order to prove it’s case, prosecution examined 12 witnesses and exhibited 19 documents. Thereafter, learned trial Court put oral evidence of the prosecution witnesses and documentary evidence produced by the prosecution to the accused/appellant under Section 313 of CrPC. In reply to the prosecution evidence, the accused/appellant denied the prosecution evidence and stated that the witnesses speak a lie due to grudge. He also stated that on the day of the incident, he was doing the work of hair cutting in his shop. A customer was entering in his shop for cutting, then other shopkeeper Govind Narain called the customer to him by giving a cue. He opposed the same, then Govind Ram started abusing. Shambhu Dayal tried to blow scissor on him, but it hit Govind Narain. He is innocent. No evidence was led in defence. During prosecution evidence, statements of two witnesses recorded by the police, were marked exhibit as Ex. D-1 & Ex.D-2. He opposed the same, then Govind Ram started abusing. Shambhu Dayal tried to blow scissor on him, but it hit Govind Narain. He is innocent. No evidence was led in defence. During prosecution evidence, statements of two witnesses recorded by the police, were marked exhibit as Ex. D-1 & Ex.D-2. After completion of trial, the learned trial Court convicted the appellant for offence under Section 302 and 323 of IPC and sentenced him as indicated hereinabove. 8. Being aggrieved with the judgment of conviction and order of sentence awarded by the learned trial Court, the accused/appellant has preferred this appeal against the impugned judgment dated 19/05/2011, hence this appeal. 9. Mr. Pankaj Gupta, learned Public Prosecutor submitted that the learned trial Court has failed to appreciate that the appellant is having his hair cutting shop namely P.C. Hair Dresser, in front of shop of Shambhu Dayal, brother of the deceased Govind Narain and on the day of incident scuffle took place between the appellant and the deceased on issue of a customer and suddenly Shambhu Dayal armed with scissor attacked on the appellant but accidentally the blow of Shambhu Dayal hit the deceased and fortunately the appellant came out safe. But brother of the deceased, to save himself, has cooked the story and after 6-7 hours, lodged false and concocted FIR against the appellant, thus, theory of the defence is more probable and the impugned judgment is liable to be quashed and set aside. 10. Learned counsel for the appellant also submitted that the learned trial Court has failed to appreciate that FIR was lodged after a delay of 6-7 hours, whereas, PW-3 Shrifal Meena, ASI immediately reached to the hospital and met family members of the deceased but prosecution satisfactorily did not explain the delay caused in lodging the FIR, thus, the story of prosecution is false, concocted and afterthought. 11. Learned counsel for the appellant further submitted that witnesses produced by the prosecution are interested witnesses and no independent witness has been examined which creates suspicion on the prosecution case. 12. In alternative, learned counsel for the appellant also submitted that if entire case of the prosecution is accepted, even then, no case under Section 302 of IPC is made out. According to the statement of Dr. Deepali Pathak (PW-8) and post-mortem report (Ex.P-15), the deceased received single injury. 12. In alternative, learned counsel for the appellant also submitted that if entire case of the prosecution is accepted, even then, no case under Section 302 of IPC is made out. According to the statement of Dr. Deepali Pathak (PW-8) and post-mortem report (Ex.P-15), the deceased received single injury. The deceased and the appellant were neighbours and scuffle took place on a trivial matter, thus it is established that there was no mens-rea on the part of the appellant, therefore, the judgment of conviction under Section 302 of IPC is liable to be quashed and set aside. 13. Per contra, Mr. R.S. Raghav, learned Public Prosecutor supported the impugned judgment and submitted that the learned trial Court has rightly convicted the appellant on the basis of cogent and reliable evidence which proves his guilt beyond reasonable doubt. Learned Public Prosecutor also contended that the appellant has partly accepted the case of the prosecution that Govind Narain, brother of the informant died due to the injury sustained by him from scissor blow. Learned Public Prosecutor also submitted that PW-11 Ramesh Chand cannot be treated as interested witness by any stretch of imagination, as he came to the shop of Shambhu Dayal (PW-6) for shaving. All the prosecution witnesses have been subjected to lengthy cross-examination but no such fact came on record which create any doubt on the reliability of the prosecution witnesses. Presence of the prosecution witnesses on the place of occurrence, is natural and evidence given by them cannot be discarded only because they are interested witnesses. 14. Learned Public Prosecutor further submitted that the incident occurred on 18/10/2009 at 9.30 AM. Thereafter, Govind Narain was taken to Ramkaran Joshi Hospital, Dausa where from he was referred to Jaipur and during treatment he expired in SMS, Hospital, Jaipur at 12.30 PM and the written report has been submitted by Jatashankar (PW-2) at 4.00 PM to ASI Shrifal Meena (PW-3). As is evident that condition of Govind Narain was very serious, therefore, it was rather much important to arrange treatment of the injured, than to first lodge a report with the police. Looking to the overall circumstances of the case, the FIR cannot be treated to be delayed, concocted and afterthought. As is evident that condition of Govind Narain was very serious, therefore, it was rather much important to arrange treatment of the injured, than to first lodge a report with the police. Looking to the overall circumstances of the case, the FIR cannot be treated to be delayed, concocted and afterthought. Learned Public Prosecutor also submitted that according to FSL report (Ex.P-19), human blood of “A” group was found positive on the clothes worn by the deceased, blood smeared soil taken from the place of occurrence, chappals seized from the place of occurrence, blood stained scissor and pant recovered from the house of the appellant, in consequence of disclosure statement given by him, which is also an additional circumstance to prove guilt of the appellant and prayed to dismiss the appeal being devoid of substance. 15. We gave our anxious consideration to the rival submissions of learned counsel for the appellant and learned Public Prosecutor for the State and perused the material on record. 16. It is not in dispute, rather it is admitted fact that the appellant used to run a hair cutting shop in the name of P. C. Hair Dresser and Shambhu Dayal (PW-6) is also running a hair cutting shop namely Ram Lakhan Hair Dresser in Dausa. It is also admitted fact that appellant’s shop P. C. Hair Dresser is situated opposite to Shambhu Dayal’s (PW-6) shop namely Ram Lakhan Hair Dresser. It is also admitted fact that on 18/10/2009 at about 9.30 AM scuffle took place between the appellant on one side and the deceased and Shambhu Dayal (PW-6) on other side, on issue of a customer. It is also admitted fact that at the time of incident, Govind Narain was sitting on the shop of Shambhu Dayal (PW-6) and he sustained serious injury of scissor blow. 17. Written report (Ex.P-11) has been submitted by Jatashankar (PW-1), who stated therein that the accused Mahesh Chand armed with scissor suddenly came from his shop on Shambhu Dayal’s shop namely Ram Lakhan Hair Dresser and attacked Govind Narain Sain, due to which he sustained serious injury. Govind Narain was taken to Government Hospital, Dausa and thereafter to SMS Hospital, Jaipur where he expired during treatment. PW-2 Jatashankar has proved his signatures on the written report. PW-1 Gopal Sain and PW-9 Kailash Sain deposed that panchayatnama of deceased Govind was prepared in their presence, which is Ex.P-1. Govind Narain was taken to Government Hospital, Dausa and thereafter to SMS Hospital, Jaipur where he expired during treatment. PW-2 Jatashankar has proved his signatures on the written report. PW-1 Gopal Sain and PW-9 Kailash Sain deposed that panchayatnama of deceased Govind was prepared in their presence, which is Ex.P-1. PW-3 Shrifal Meena stated that on 18/10/2009, complainant Jatashankar submitted a written report (Ex.P-11) to him in mortuary of SMS Hospital, Jaipur. He prepared panchayatnama of dead body (Ex.P-1) in presence of witnesses. Gopal Sain (PW-1) and Kailash Chand (PW-9) proved their signatures on panchayatnama (Ex.P-1). According to prosecution, autopsy of the corpse of Govind Narain, was performed on 18/10/2009 by Dr. Deepali Pathak (PW-8) on the request of police and she prepared post-mortem report (Ex.P-15). 18. Conjoint reading of the written report (Ex.P-11), Panchayatnama (Ex.P-1), post-mortem report (Ex.P-15) and statements of PW-1 Gopal, PW-2 Jatashankar, PW-3 Shrifal Meena and PW-9 Kailash Chand reveal that Govind Narain Sain son of Basanti Lal Sain expired in SMS hospital on 18/10/2009 at 12.30 PM and autopsy of the corpse was performed on the same day at 4.40 PM. On external examination, Medical Jurist Dr. Deepali Pathak (PW-8) found stab lacerated wound 1.3 cm x 0.3 cm x chest cavity deep with fresh red clotted blood with blood oozing out present over left side front of chest in between 5th and 6th inter-costal space. On dissection, there is a wound in soft tissues on left 5th inter-costal space of size 1.5 cm x 0.5 cm with antemortem haematoma. On dissection acerated wound punctured of size 1 cm x 0.5 cm of left ventricle near apex of heart on anterior surface going through and through into chamber and then another lacerated wound 1 cm x 0.5 cm x through and through on posterior surface of left ventricle. Lung and pleurae on left side show puncture lacerated wound of size 1 cm x 0.5 cm x 1 cm on left lung lower labe. The paricardial cavity contains about 500 ml partially clotted blood. Above injury is ante-mortem in nature and fresh in the duration prior to death. In opinion of the witness, cause of death is shock brought about by ante-mortem injury No. 1 caused by pointed one side edged sharp weapon which is sufficient to cause death in ordinary course of nature. 19. Above injury is ante-mortem in nature and fresh in the duration prior to death. In opinion of the witness, cause of death is shock brought about by ante-mortem injury No. 1 caused by pointed one side edged sharp weapon which is sufficient to cause death in ordinary course of nature. 19. PW-2 Jatashankar is complainant of the case on whose written report (Ex.P-11), the FIR was registered and the investigation commenced. The witness is brother of the deceased Govind Narain Sain. The witness deposed that on 18/10/2009 at about 9.30 AM, Govind Narain Sain was sitting on the shop of his elder brother Shambhu Dayal. P. C. Hair Dresser is situated opposite to shop of Shambhu dayal, whose owner is Mahesh Chand @ Pisya son of Shambhu Dayal. Altercation took place between Mahesh and Shambhu on issue of a customer. While abusing in heat of passion, Mahesh armed with scissor came and hit Govind Narain with scissor on his left armpit, thereby, Govind Narain was seriously injured. The witness also stated that Shambhu also sustained injuries on his hand and chest. Thereafter, he took him to Government Hospital, Dausa. Shambhu Dayal, Kailash Chand and Ramji Lal Sharma saw the incident. Scuffle took place on issue of a customer. Injured Govind Narain was referred to Jaipur due to his serious condition. They got him admitted in emergency in Jaipur. After treatment for some time, he expired. In cross-examination, the witness admitted that there was no quarrel between them before this incident. The witness denied the suggestion that deceased Govind Narain and Shambhu (PW-6) would have come with scissor on road, to hit the accused. Grapple took place between the accused and the deceased. It is wrong to say that scissor blow by Shambu would have hit Govind Narain during the grapple. 20. PW-6 is another brother of the deceased Govind Narain. The witness runs a hair cutting shop in the name of Ram Lakhan Hair Dresser, which is situated opposite to P. C. Hair Dresser, owned by the appellant. The witness deposed that on 18/10/2009 at about half past nine in morning, a customer came to his shop. At that time the witness, Govind Narain, Ramji Lal, Kailash Chand and Jatashankar were there on the shop. Jatashankar was 5-7 shops away from his shop. Customer was also there in his shop. The witness deposed that on 18/10/2009 at about half past nine in morning, a customer came to his shop. At that time the witness, Govind Narain, Ramji Lal, Kailash Chand and Jatashankar were there on the shop. Jatashankar was 5-7 shops away from his shop. Customer was also there in his shop. Shop of Mahesh @ Pisya is situated opposite to the shop of the witness. A customer came to his shop for shaving. The witness put towel, for shaving of the customer, then Mahesh started abusing and called the customer towards him but the customer refused. Mahesh continued abusing. The witness asked him as to why he is abusing but he did not stop. Govind Narain also refused him to use abusive language. Thereafter, Mahesh came from his shop with scissor and said to kill both of us. Mahesh attacked Govind Narain with scissor. Mahesh blew the scissor in left stomach of Govind Narain. Mahesh gave second blow on the witness. He sustained injury by the scissor on his right thumb. Thereafter, Mahesh fled away with scissor. Thereafter, he, Kailash, Ramji Lal, customer and Jatashankar took Govind Narain to hospital, where from he was referred to Jaipur. Govind Narain died in Jaipur at about 12.30 – 1.00 PM. Witness also stated that he was medically examined and he proved his signatures on his injury report. In cross-examination, the witness stated that prior to this incident, no report or any case was ever registered for any quarrel between the witness and the accused. Altercation between him and the accused, took place for 2-3 minutes, on the issue of a customer. The witness denied the suggestion that he and Govind Narain came on road with scissor, to hit the accused. The witness also denied the suggestion that grapple took place between the accused, and Govind Narain and during this course, blow of the witness, accidentally hit Govind Narain. The witness stated himself that his hands were empty. 21. PW-9 Kailash Chand has been examined by the prosecution as an eye witness of the incident. The witness deposed that on 18/10/2009 at about half past nine in morning, he, Govind Narain and Shambhu Dayal were sitting on the shop of Shambhu’s Ram Lakhan Hair Dresser. A customer came there for hair cutting and he sat on the seat. 21. PW-9 Kailash Chand has been examined by the prosecution as an eye witness of the incident. The witness deposed that on 18/10/2009 at about half past nine in morning, he, Govind Narain and Shambhu Dayal were sitting on the shop of Shambhu’s Ram Lakhan Hair Dresser. A customer came there for hair cutting and he sat on the seat. Then, Mahesh @ Pisya of P. C. Hair Dresser, started abusing and called the customer to him saying that he will charge less money. While abusing, Mahesh @ Pisya came there. Govind Narain was standing on the stairs of the shop, who refused Mahesh @ Pisya to use abusive language. Thereafter, Mahesh @ Pisya hit Govind Narain in his stomach. When Shambhu came forward, Mahesh hit Shambhu also, with scissor. Mahesh @ Pisya fled away with scissor. The witness Ramji Lal and a customer were there on the place of incident at that time. Jatashankar also came there, after scissor blow. Govind Narain was in pool of blood and he was taken to hospital in auto-rickshaw. In cross-examination, the witness denied the suggestion that there was no scissor in the hands of the accused. The witness also denied the suggestion that Govind Narain was sent with scissor to kill the accused. The witness also denied the suggestion that Shambhu was having scissor in his hand. The witness also denied the suggestion that the accused and Govind Narain grappled on road and during this course, scissor with Shambhu accidentally hit Govind Narian. 22. PW-11 Ramesh Chand Meena has been examined as eye witness of the incident. The witness deposed that on 18/10/2009, he went to the shop of Ram Lakhan Hair Dresser for shaving. At the same time, shopkeeper on other side of the road, called him by giving a cue. On this issue, scuffle took place between both the shopkeepers. Other shopkeeper named Pisya was having scissor in his hand, came to the shop of Ram Lakhan Hair Dresser. During altercation, scissor which was in Pisya’s hand, hit Govind. Govind fell down in pool of blood. Thereafter, Govind was taken to hospital in tempo. Scuffle took place on issue of a customer. In cross-examination, the witness stated that his statements were recorded by the police, first time on 04/11/2009. The witness denied the suggestion that Shambhu grappled with the accused Pisya on road. Govind fell down in pool of blood. Thereafter, Govind was taken to hospital in tempo. Scuffle took place on issue of a customer. In cross-examination, the witness stated that his statements were recorded by the police, first time on 04/11/2009. The witness denied the suggestion that Shambhu grappled with the accused Pisya on road. The witness also denied the suggestion that Shambhu while cutting hair, came with scissor. The witness also denied the suggestion that Govind Narain tried to intervene between Pisya and Shambhu Dayal and scissor with Shambhu Dayal would have accidentally hit Govind Narain. 23. Holistic examination of the testimony of PW-2 Jatashankar, PW-6 Shambhu Dayal, PW-9 Kailash Chand and PW-11 Ramesh Chand, reveals that PW-11 Ramesh Chand is an independent witness, who came to the shop of Shambhu Dayal (PW-6) for his shave. PW-6 Shambhu Dayal and PW-9 Kailash Chand have been cross-examined by learned counsel for the accused/appellant at length but no such fact has come on record which create any doubt on the reliability of the witnesses. Shambhu Dayal (PW-6) is brother of the deceased Govind Narain and owner of the shop, where the incident took place. Kailash Chand (PW-9) is caste fellow of the deceased and the complainant, who refused having any relationship with the complainant party. The appellant and the complainant party are both of same caste. Therefore, Kailash Chand (PW-9) also cannot be said to be interested in complainant party or having any grudge with the appellant. PW-2 Jatashankar is also brother of the deceased Govind Narain and Shambhu Dayal (PW-6), therefore, presence of witness Jatashankar, Shambhu Dayal and Kailash Chand at the place of occurrence, is natural. Evidence given by witness Jatashankar and Shambhu Dayal cannot be discarded only because they are interested witnesses. Therefore, contention of learned counsel for the appellant in this regard, cannot be accepted. 24. Contention of learned counsel for the appellant that there are contradictions in the statements of material witnesses of the prosecution, therefore, the whole story put forth by the prosecution became doubtful, cannot be accepted. Therefore, contention of learned counsel for the appellant in this regard, cannot be accepted. 24. Contention of learned counsel for the appellant that there are contradictions in the statements of material witnesses of the prosecution, therefore, the whole story put forth by the prosecution became doubtful, cannot be accepted. Perusal of statements of eye witness Shambhu Dayal (PW-6), Kailash Chand (PW-9) and Ramesh Chand (PW-11), reveals that there is no contradiction in the statements of these witnesses regarding the fact of (i) scuffle took place between the accused and Shambhu Dayal on the issue of a customer and coming of the accused on the shop of Shambhu Dayal, (ii) during quarrel, accused Mahesh blew scissor on the left stomach of Govind Narain, (iii) Govind Narain was taken to Government Hospital, Dausa in injured condition, where from he was referred to SMS Hospital, Jaipur due to his serious condition, (iv) during treatment, Govind Narain died on the same day at about 12.30 PM, in SMS Hospital, Jaipur. On material facts, no such contradiction has came in the statements of above witnesses, which make their statements not reliable. 25. The accident occurred on 18/10/2009 at about 9.30 AM. From evidence available on record, it is proved that after the accident, Govind Narain was taken to Government Hospital, Dausa and where from he was referred to Jaipur due to his serious condition and he expired during treatment in SMS Hospital, Jaipur on the same day at 12.30 PM. Jatashankar (PW-2) submitted written report (Ex.P-11) at 4.00 PM to ASI Shrifal Meena (PW-3). From opinion given by Medical Jurist of Government Hospital, Dausa on tehrir (Ex.P-13) given by the police, it reveals that condition of injured Govind Narain was serious and he was not fit to give statement and was referred to SMS, Jaipur. Looking to the condition of Govind Narain, it was much important to make arrangements for his treatment, rather to lodge a written report with police. As the written report has been submitted at 4.00 PM on same day, the delay in lodging the FIR is well explained and it cannot be treated as inordinate delay, therefore, case of the prosecution cannot be thrown, on this count alone. 26. As the written report has been submitted at 4.00 PM on same day, the delay in lodging the FIR is well explained and it cannot be treated as inordinate delay, therefore, case of the prosecution cannot be thrown, on this count alone. 26. Shri Chand (PW-12) has conducted investigation of the case, who gave a detailed account of investigation and deposed that on 18/10/2009, blood stained pant, shirt and underwear were seized vide Ex.P-2 and were sealed in presence of the witnesses. The witness also stated that on 19/10/2009, he reached to the place of occurrence and prepared site plan (Ex.P-2), took samples of blood smeared and control soil from the place of occurrence vide Ex.P-4 and Ex.P-6 respectively. He seized a pair of blood stained chappal and one another chappal from the place of occurrence vide Ex.P-5. The witness also stated that the accused was arrested and during custody, he gave disclosure statement under Section 27 of the Evidence Act, which is Ex.P-17. He seized blood stained scissor and a pant from the house of the accused at his instance, in consequence of disclosure statement given by him and prepared memo Ex.P-7. 27. PW-10 Kailash Chand, Head Constable deposed that on 20/10/2009, he was posted as H.M. Maalkhana in Police Station Kotwali. On that day, S.I. Shri Chand gave him 7 packets duly sealed with seizure memo, to be deposited in Maalkhana. He made entries thereof in Maalkhana register. He gave all the 7 sealed packets to Ran Singh Constable with forwarding letter, to be deposited in FSL, which he deposited accordingly and brought receipt thereof. The witness proved entries in Maalkhana register Ex.P-16. PW-7 Ran Singh Constable corroborated the evidence given by Kailash Chand (PW-10). 28. From FSL report (Ex.P-19), it transpires that on serological examination of the clothes worn by the deceased at the time of incident, sample of blood smeared soil taken from the place of occurrence, a pair of blood stained chappal and a single chappal, blood stained kenchi (scissor) and a pant seized from the house of the accused/appellant, gave positive test for presence of human blood of group A. The FSL report was also put to the appellant under Section 313 of CrPC. He did not offer any explanation for the presence of human blood on the scissor and pant seized from his house, and also of matching of the blood group found on articles seized from him and clothes of the deceased and other articles seized from the place of occurrence. This circumstance also connects the accused/appellant with commission of the alleged crime. 29. The defence taken by the accused/appellant is that on the day of incident, scuffle took place between the appellant and the deceased on issue of a customer and suddenly Shambhu Dayal (PW-6) armed with scissor attacked the appellant but accidentally blow of Shambhu Dayal hit the deceased and fortunately the appellant saved, but brother of the deceased to save himself, has cooked the story and lodged false and concocted FIR against the appellant. The evidence given by PW-6 Shambhu Dayal, PW-9 Kailash Chand and PW-11 Ramesh Chand who are eye witnesses of the accident, have categorically stated that altercation took place between Govind Narain and his brother Shambhu Dayal (PW-6) on one side and the accused/appellant on other side, on the issue of a customer. The witnesses also stated that the accused came from his shop with scissor, to the shop of Shambhu Dayal and hit on left stomach of Govind Narain, with his scissor. The evidence given by the witnesses is reliable one and remained unrebutted. No evidence has been led by the accused in support of the defence taken by him, therefore, the contention raised by the learned counsel for the appellant in this regard, cannot be accepted. 30. Shambhu Dayal (PW-6) also stated that Mahesh gave second blow of scissor on him and he sustained injury from the scissor on his right thumb. Jatashankar (PW-2) deposed that Shambhu also sustained injury on his hand and chest in the incident. Kailash Chand (PW-9) also stated that Mahesh also hit Shambhu’s hand, with his scissor. Dr. Satish Kumar (PW-4) deposed that on 20/10/2009, he was posted as Medical Officer in Government Hospital, Dausa. On that day, on the request of SHO Kotwali, Dausa, he examined the injuries found on the body of Shambhu Dayal and prepared injury report Ex.P-12. He found one abrasion of 1/3x1/3 cm on thumb of left hand, which was caused by blunt weapon and the injury was simple in nature. The injured was making complaint of chest pain. 31. On that day, on the request of SHO Kotwali, Dausa, he examined the injuries found on the body of Shambhu Dayal and prepared injury report Ex.P-12. He found one abrasion of 1/3x1/3 cm on thumb of left hand, which was caused by blunt weapon and the injury was simple in nature. The injured was making complaint of chest pain. 31. From above evidence, it is also proved that Shambhu Dayal (PW-6) sustained one simple injury in the accident, which is attributed to the appellant. 32. From critical analysis of the above evidences, it is borne out that the appellant herein gave only single blow of scissor to the deceased Govind Narain and injury to the deceased is caused by the appellant without any premeditation. It also transpires that quarrel took place between the accused/appellant on one side and the deceased Govind Narain and his brother Shambhu Dayal (PW-6) on other side, on trivial issue of a customer of cutting/shaving, therefore, offence under Section 302 of IPC is not made out. Incident thus took place without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, without the offender having taken undue advantage. The matter would thus fall in exception 4 to Section 300 of IPC and would therefore be a culpable homicide not amounting to murder punishable under Section 304 Part I of IPC. 33. In view of above discussion, present appeal is allowed in part. Conviction of the accused/appellant under Section 302 IPC is set aside and instead he is convicted for offence under Section 304 Part I of IPC and sentenced to rigorous imprisonment of ten years with fine of Rs. 1,000/-, in default whereof, the accused/appellant shall further undergo six months’ simple imprisonment. Conviction and sentence of accused/appellant under Section 323 IPC is maintained. 34. Keeping, however, in view of the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Mahesh Chand @ Pisya is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, he, on receipt of notice thereof, shall appear before the Supreme Court.