JUDGMENT : Rajiv Gupta, J. 1. Heard learned counsel for the appellants, learned AGA for the State/respondent and perused the material available on record. 2. The present criminal appeal has been filed against the judgment and order dated 30.11.1983 passed by Special Judge, Deoria in Session Trial No. 218 of 1982, State Vs. Sheo Nath and others, whereby, all the three appellants were convicted under Sections 302 IPC read with Section 34 IPC and awarded the sentence of life imprisonment. 3. As per the report dated 09.11.2016 received from the Chief Judicial Magistrate, Deoria mentioning that the appellant no.1 and 3, namely, Sheo Nath and Shankar @ Rama Shankar have died, as such, the appeal preferred by them was made to be abated by an earlier order of this Court dated 23.11.2016 and only appeal against the appellant no.2 Tufani survives. 4. The present case has been initiated on the basis of the FIR lodged by Sheo Ratan Singh S/o Brahmdev alleging therein that on 07.10.2017 at about 5:00 PM in the evening, his brother Jatau @ Jata Shankar was processing his paddy crop, when accused Sheo Nath, Tufani and Shankar @ Rama Shankar reached there and insisted that they would process their paddy first, which resulted in an altercation between the parties, on account of which, Sheo Nath S/o Shahdev, Tufani S/o Sahdev and Shankar @ Rama Shankar S/o Sheo Nath suddenly attacked his brother with their lathis and creech, due to which his brother fell down. On the alarm raised by his brother, Ashok Singh S/o Jagdev Singh, Ram Nazar Singh S/o Kamla Singh and Abhiram Singh S/o Triveini Singh intervened in the matter and tried to rescue the victim. 5. On the basis of said information, the FIR was lodged on 07.10.1977 at the Police Station Gauri Bazar at 7:30 PM vide Case Crime No. 186 of 1977, under Section 307 IPC and corresponding GD Report No. 29 was drawn showing the registration of the case at the Police Station Gauri Bazar. After registration of the FIR, the investigation of the case was handed over to the Investigating Officer SI Barahm Rai. The victim Jatau @ Jata Shankar was taken for treatment to the Primary Health Centre (PHC), Gauri Bazar, where Medical Officer recorded the statement of the victim and thereafter, he was referred to the District Combined Hospital, Deoria. After registration of the FIR, the investigation of the case was handed over to the Investigating Officer SI Barahm Rai. The victim Jatau @ Jata Shankar was taken for treatment to the Primary Health Centre (PHC), Gauri Bazar, where Medical Officer recorded the statement of the victim and thereafter, he was referred to the District Combined Hospital, Deoria. While he was being taken to the District Combined Hospital, Deoria, the victim died consequent thereto, the information about the death of the victim was given at Police Station Kotwali and corresponding GD Report No. 48 at 9:50 PM on 07.10.1977 was drawn by Kotwali Police and the case was converted under Section 302 IPC. The investigating Officer, after concluding the investigation, submitted the charge-sheet (Ex. Ka-2) against the accused persons and thereafter, the case was committed to the Court of Sessions. The accused persons did not plead guilty and claimed to be tried. 6. During the course of trial, the prosecution has produced as many as eight witnesses :- PW-1 Sheo Ratan Singh, being the first informant, PW-2 Ashok Singh and PW-3 Ram Nazar Singh as the eye-witnesses of the incident, PW-4 Rama Shankar Singh, being the second Investigating Officer, PW-5 Dr. A.K. Rai, who conducted the postmortem of the deceased, PW-6 Balram Rai, the first Investigating Officer, PW-7 Dr. Mohd. Alam, who recorded dying declaration of the deceased and PW-8 Ramji Chaubey, who conducted the panchayatnama. 7. As per the prosecution case, PW-1 Sheo Ratan Singh, the brother of the deceased, has lodged the FIR. PW-1, in his statement, has stated that Jatau is his younger brother and at the time of incident, he was aged 22 years and he was unmarried. The accused Sheo Nath, Tufani are the real brothers, where Shankar @ Rama Shankar is the son of accused Sheo Nath and they are the resident of the same village. 8. He has further stated that the incident has started near the grove of Ramdev Singh in the village Pokhar-Bhinda and extended till village Simaraha, where his brother was assaulted. On the day of incident at about 3-4 PM, his brother has left the house and had reached the grove of Ramdev Singh for getting his paddy processed. 9. 8. He has further stated that the incident has started near the grove of Ramdev Singh in the village Pokhar-Bhinda and extended till village Simaraha, where his brother was assaulted. On the day of incident at about 3-4 PM, his brother has left the house and had reached the grove of Ramdev Singh for getting his paddy processed. 9. The incident is said to have been taken place at about 5:00 PM and at the relevant time of the incident, he was present at his house and a boy came to his house and informed him that his brother is being assaulted by the accused persons, namely, Sheo Nath, Tufani and Shankar @ Rama Shankar in the grove of Ramdev Singh and his brother has escaped towards northern side and the accused persons have chased him. 10. On the basis of said information, he reached the village Simraha, where he found his brother lying on the ground and the witnesses Ashok Singh, Ram Nazar Singh and Abhiram Singh were present there and the said witnesses informed him that three accused persons, namely, Sheo Nath, Tufani and Shankar @ Rama Shankar have assaulted his brother by lathis and creech and the accused Tufani was armed with creech. He took his brother on rickshaw for treatment, however, on the way, he met Bechan Singh and got the FIR transcribed by him and took his injured brother to the Police Station and gave the report to the constable, who saw his injuries. 11. Thereafter, his brother was sent to PHC, Gauri Bazar, where some treatment was given and thereafter, he was taken to District Combined Hospital, Deoria. The Doctor at PHC, Gauri Bazar had recorded the statement of his brother and when his brother was being taken to District Combined Hospital, Deoria, he died on the way and his dead body was brought to the Police Station Kotwali, where the panchayatnama was drawn and thereafter the body was sent for postmortem. 12. The Doctor at PHC, Gauri Bazar had recorded the statement of his brother and when his brother was being taken to District Combined Hospital, Deoria, he died on the way and his dead body was brought to the Police Station Kotwali, where the panchayatnama was drawn and thereafter the body was sent for postmortem. 12. Thereafter, the prosecution has produced PW-2 Ashok Singh, who is an eye-witness of the incident and he, in his statement, has stated that on 07.10.1977 at about 5:00 PM, he was working in his field when the accused persons Sheo Nath, Tufani and Shankar @ Rama Shankar reached the place of incident and insisted for getting processed their paddy first, on which, altercation took place and the appellant Tufani assaulted Jatau @ Jata Shankar. Jatau also took a small lathi and hit on the head of Shankar @ Rama Shankar. Seeing the incident, he reached there and questioned them as to why on such trivial matter, they are quarreling among themselves. 13. In the meantime, Jata Shankar in order to save himself, fled away towards north and he was chased by Sheo Nath, Rama Shankar and Tufani and when he reached the village Simraha near the sugarcane field of Suraj Nath, then he was again assaulted by lathi and creech and thereafter, assailants made their escape good. After about 5-6 minutes, Sheo Ratan Singh, brother of Jatau, reached there and names of the accused was disclosed to him and he took his brother to the PHC, Gauri Bazar and he returned back to his home. 14. Thereafter, prosecution has produced PW-3 Ram Nazar Singh, who, in his statement, has stated that on the day of the incident at about 5:00 PM, Jatau @ Jata Shankar was processing his paddy and Sheo Nath, Tufani and Shankar @ Rama Shankar came there and there was some altercation between them over processing their paddy first. 15. He has further stated that at the time of incident, Sheo Nath Singh was having lathi in his hand and Tufani was armed with creech and Shankar @ Rama Shankar was also having lathi. Jatau was processing his paddy and the accused persons asked him not to process his paddy as they would first process their paddy. The victim Jatau said that he is already processing his paddy and asked them to wait till he has processed his paddy. Jatau was processing his paddy and the accused persons asked him not to process his paddy as they would first process their paddy. The victim Jatau said that he is already processing his paddy and asked them to wait till he has processed his paddy. This resulted into an altercation between the accused and the victim Jatau, Tufani then assaulted Jatau with his creech and hit him on his head. Jatau, in his defence, struck Shankar by danda on his head. 16. It is further stated by the said witness that he and Abhiram then asked as to why they are quarreling on such a trivial matter and in the meantime, Jatau made his escape good towards north and the accused persons chased him and they also followed the accused and the victim and when they reached near the village Simraha, then the victim was again assaulted by Tufani by creech and Sheo Nath and Shankar by lathis, due to which, Jatau received injuries and fell down. In the meantime, victim's brother Sheo Ratan Singh reached the place of the incident and the incident was narrated to him, who took Jatau on a rickshaw to the Gauri Bazar and subsequently, it was revealed that victim Jatau died due to injuries sustained by him. 17. Thereafter, the prosecution has got examined PW-5 Dr. A.K. Rai, who conducted the postmortem and has noted following injuries on the person of the deceased :- (1) Lacerated would 1 cm x ¼ cm scalp deep over right forehead 1 cm from right eye-brow. (2) Lacerated wound ½ cm x ¼ cm scalp deep over right forehead 1 cm above right H.D. (3) Incised wound 1 ½ cm x ½ cm bone deep over skull 3 cm above root of nose, right ear, oblique in position. (4) Lacerated wound 1 ½ cm x ½ cm bone deep over skull 3 cm above root of nose. (5) Multiple abrasions in an area of 1 cm x 1 cm over left forehead. (6) Lacerated wound ½ cm x ¼ cm over root of nose hard bone fractured. (7) Multiple contusions in an area of 3 cm x 2 cm over left deltoid regions upper part. (8) Abraded contusion 4 cm x 2 cm over left arm lower part outer side. (6) Lacerated wound ½ cm x ¼ cm over root of nose hard bone fractured. (7) Multiple contusions in an area of 3 cm x 2 cm over left deltoid regions upper part. (8) Abraded contusion 4 cm x 2 cm over left arm lower part outer side. (9) Multiple abrasions in an area of 5 cm x 3 cm over left forearm upper part outer side. (10) Abrasion 1 ½ cm x 1 cm over left knee joint front. (11) Contusion in an area of 4 cm x 3 cm over left leg middle and lower part front and medial side. (12) Multiple contusions in an area of 5 cm x 3 cm over right leg upper and middle part front and medial sides. (13) Contusion 2 cm x 1 cm over right thigh middle part outer side. (14) Multiple contusions in an area of 4 cm x c cm over right arm middle and lower part outer side. (15) Contusion 1 cm x 1 cm over right wrist joint dorsal side. (16) Multiple abraded contusions in an area of 6 cm x 4 cm over right scapular region upper part. (17) Lacerated wound ½ cm x ¼ cm muscle deep ½ below left eye. 18. He found fracture of parietal bone below injury no.4. Four ounces of semi digested food was found in the stomach. The death was due to shock and coma on account of the ante-mortem injuries. He proved the postmortem report Ex. Ka-3. He further stated that injury no.3 of the deceased could be caused by some sharp edged weapon. The remaining injuries were caused by some blunt object. The cumulative effect of the injuries was sufficient to cause death. The death could have taken place at about 9 or 10 PM on 07.10.1977. 19. Thereafter, the prosecution has produced the Investigating Officer Balram Rai, in whose presence, the case was registered and who had carried out the investigation and submitted the charge-sheet against the accused. 20. Thereafter, the prosecution has got summoned Dr. Mohd. Alam, who has examined the victim Jatau at PHC, Gauri Bazar and had recorded dying declaration of the deceased Jatau, which has been marked as Ex. Ka-8. 21. Thereafter, the prosecution has produced PW-8 Ramji Chaubey, Sub-Inspector, who was then posted at Police Station Kotwali on 08.10.1977. 20. Thereafter, the prosecution has got summoned Dr. Mohd. Alam, who has examined the victim Jatau at PHC, Gauri Bazar and had recorded dying declaration of the deceased Jatau, which has been marked as Ex. Ka-8. 21. Thereafter, the prosecution has produced PW-8 Ramji Chaubey, Sub-Inspector, who was then posted at Police Station Kotwali on 08.10.1977. He has stated that the dead body of the deceased reached the Police Station Kotwali on 07.10.1977 at 9:00 PM and he has drawn the inquest report on 08.10.1977, which has been marked as Ex. Ka-9 and also sealed the dead body and prepared the necessary police papers, which have been marked as Ex. Ka-10 to Ex. Ka-14 and had sent the dead body through constables to the mortuary for conducting the postmortem. 22. Thereafter, the statement of the accused Tufani was recorded under Section 313 CrPC, in which, he has denied the prosecution story and has stated that he has falsely implicated on account of animosity. 23. The defence has also produced DW-1 Ram Kewal and also filed documents Ex. Kha-4 to Ex. Kha-6. Ex. Kha-4 and Ex. Kha-5 are the certified copy of the FIR, which has been lodged by the accused Rama Shankar against Jatau, Sheo and Keshav, sons of Brahmdeo, for the offence under Sections 323 and 307 IPC. The said FIR is said to have been lodged on 07.10.1977 at about 8:30 PM. This FIR states the defence version. 24. According to this FIR, the occurrence took place on 07.10.1977 at 7:30 PM in Pokhar-Bhinda. As per the allegations made in the said FIR, it is stated that Rama Shankar S/o Sheo Nath was returning back after cutting grass and on the way, Jatau, Sheo and Keshav, sons of Barahmdev assaulted him with lathi danda and the accused Jatau assaulted him with the lathi on his head, due to which, he fell down and on the alarm raised by him, his father Sheo Nath, Ganpati and Ram Kewal reached the place of the incident and thereafter, accused persons fled away. 25. The defence has also filed certified copy of the injury report, which has been marked as Ex. Kha-6. 25. The defence has also filed certified copy of the injury report, which has been marked as Ex. Kha-6. As per the injury report, the victim Shankar has received a contused wound 3 cm x ½ cm x scalp deep, on the left side of the head, vertically placed 10 ½ cm, from the left ear, margins irregular, clot present. The injury was found simple in nature and it was caused by some blunt object and the duration was within one day. 26. It is further germane to point out that the defence in order to prove its case has produced Ram Kewal as DW-1, who in his statement has stated that on the date of the incident while he was returning after cutting the grass and had reached near the village Simraha, then an altercation was going on between Rama Shankar and Jatau. Rama Shankar was also returning back after cutting the grass. 27. He has further stated that Jatau was a thief and father of Rama Shankar always used to make complaints to the Police Station regarding his misdeeds. On account of this animosity, Jatau had unshackled Rama Shankar and he along with Ganpati reached there and he saw that during the altercation, Jatau hit Rama Shankar on his head, due to which, Rama Shankar received serious injuries and Rama Shankar in his defence also hit Jatau on his head and when Jatau started wielding lathi, then Rama Shankar had also assaulted him with lathi and in order to rescue Rama Shankar, Jatau received injuries on his person and on the basis of the said incident, in Session Trial No. 219 of 1982, which is a cross case of the present incident, he had deposed against the complainant party. 28. On the basis of the aforesaid evidence adduced on behalf of the prosecution as well as defence, learned counsel for the appellants has contended that the alleged incident took place on 07.10.1977 at 05:00 PM, for which FIR was lodged on the same day at 07:30 PM at the Police Station Gauri Bazar, District Deoria from the side of the prosecution. 29. He has further contended that at about 08:00 PM on 07.10.1977, dying declaration of the deceased was also recorded. The copy of same has been filed as Exhibit Ka-8 along with the paper book. 30. 29. He has further contended that at about 08:00 PM on 07.10.1977, dying declaration of the deceased was also recorded. The copy of same has been filed as Exhibit Ka-8 along with the paper book. 30. It has been further contended by learned counsel for the appellants that the present incident is an outcome of hot talk and altercation between the two parties, in which, the appellant nos. 1 and 3 attacked the deceased with lathi while appellant no. 2 attacked with the creech on the head of the deceased. 31. Learned counsel for the appellants has further submitted that there is a cross version from both the sides and injuries were also found on the person of the deceased and on the side of the complainant. The injury on the side of the complainant has also been examined by the doctor and the incident is said to have been taken place at the spur of the moment without any premeditation and fight between the parties took place in which farm instruments were used and there was no previous enmity between the parties, therefore, it cannot be said that the appellants deliberately and intently committed the said offence but it is a case, which is fully covered by Section 304 Part-II I.P.C. 32. In order to buttress his arguments, learned counsel for the appellants has drawn our attention to the statement of PW-1 Shiv Ratan Singh, (informant), who is the brother of the deceased and has referred to page no. 18 of the paper book and has argued that the PW-1 Shiv Ratan Singh is not an eye witness of the incident but he was informed about the said incident by one boy and on the basis of which, he had reached the place of the incident and as such, the statement of PW-1 Shiv Ratan Singh is hearsay evidence and he is not an eye witness of the incident, therefore, his statement is not admissible as per the provisions of Section 60 of the Indian Evidence Act. 33. Learned counsel for the appellants has next drawn our attention to the page no.26 of the paper book, in which, it is admitted fact that it was a cross case between the parties, which resulted in the incident and death of the deceased. 34. 33. Learned counsel for the appellants has next drawn our attention to the page no.26 of the paper book, in which, it is admitted fact that it was a cross case between the parties, which resulted in the incident and death of the deceased. 34. Learned counsel for the appellants has next referred the statement of PW-2 Ashok Singh, who is said to be an eye-witness of the incident and has argued that his statement would reflect that injury was caused to the deceased by the appellant Rama Shankar and therefore, it is contended that as per the statement of the said witness, it is a cross case and the incident happened at the spur of moment and fight between the parties took place in view of the sudden quarrel, in which, farm instruments were used and there was no premeditation of mind to commit the offence and there was no previous enmity between the parties, therefore, it cannot be said that the appellants deliberately and intently committed the said offence but it is a case, which is fully covered by Section 304 Part-II I.P.C. 35. Learned counsel for the appellants has further argued that the aforesaid arguments also finds support from the perusal of the statement of dying declaration of the deceased. 36. Learned counsel for the appellants has next referred to the statements of PW-3 Ram Nazar Singh at page no.37 of the paper book, who is also said to be an eye-witness of the incident and has argued that the said witness has also admitted that the deceased had caused injuries to one of the appellants i.e. Shankar @ Rama Shankar, which also proves that it was a cross case and the incident took place at the spur of moment and therefore, the offence, if any, does not travel beyond Section 304 Part II IPC. 37. Learned counsel for the appellants has drawn our attention to the statement of PW-5 Dr. A.K. Rai, who had conducted the postmortem of the deceased and has argued that the perusal of the postmortem report would show that seven injuries are said to have been received on the body of the deceased and only one incised wound have been caused to the deceased by creech, which weapon the appellant is said to be holding at the time of incident. All other injuries have been noted to be caused by hard blunt object assigned to the other two co-accused. 38. Learned counsel for the appellants has drawn our attention to the statement of PW-7 Dr. Mohd. Alam, who has stated that dying declaration of the deceased was recorded in his presence, therefore, it is contended that the same cannot be denied. 39. Learned counsel for the appellants has further argued that the incident took place at the spur of moment and farm instruments were used, which were available at the place of the incident and there was no premeditation of mind of the accused before committing the alleged offence and there was no previous enmity between the parties, therefore, it cannot be said that the appellants deliberately and intently committed the said offence but it is a case, which is fully covered by Section 304 Part II I.P.C. 40. In support of his aforesaid arguments, learned counsel for the appellants has placed reliance upon the judgment of the Supreme Court reported in (2017) 5 SCC 796 in the matter of Surain Singh Vs. State of Punjab and has placed reliance on para 11 to 23 of the said judgment. He has drawn special reference to the para 14 of the aforesaid judgment, which is quoted below :- "14. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". 41. Learned counsel for the appellants has also submitted that the aforesaid judgment takes note in the matter of Kikar Singh vs. State of Rajasthan (1993) 4 SCC 238 , wherein, Supreme Court had held if two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. Supreme Court had further held that the number of wounds is not the criterion but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. 42. Learned counsel for the appellants has made special reference to the para 22 of the aforesaid judgment, wherein, Supreme Court had also held that the number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. 43. Learned counsel for the appellant has next contended that in the present case also, there was no pre-meeting of mind and the fight took place at the spur of the moment, in which, only farm instruments, which were at the place of occurrence were used and therefore, surviving appellant no.2 is entitled to be given the benefit of Section 300 and the case is not travel beyond the ambit of Section 304 Part II I.P.C. 44. Learned AGA for the State, on the other hand, has contended that from the perusal of the site plan shows that the deceased was initially attacked at one place and thereafter, he was chased by the accused persons and assaulted again in the village Simraha, which is at a distance of about one kilometer. 45. Learned AGA for the State has referred the postmortem report of the deceased and has argued that although 17 injuries were sustained and out of them, six injuries were caused with the intention to kill the deceased by the assailants. Therefore, it is argued that the appellant is not entitled to be given benefit of Section 300 IPC and has been rightly convicted under Section 302 IPC, therefore, no interference is warranted by this Court. 46. We have considered the arguments of learned counsel of both the sides and from the entire evidence adduced during the course of trial, it is evident that PW-1 is not an eye-witness of the incident and he has narrated the prosecution case on the basis of information given to him by the PW-2 and PW-3, who are said to be present at the time of the incident. 47. It is further relevant to point out here that the PW-2 and PW-3 both, in their statements, have specifically stated that the incident had taken place at the spur of the moment without any premeditation and the said incident was an outcome of altercation, which took place between the parties on account of processing the paddy first, which the victim has refused and on account of said altercation, the appellant Tufani had assaulted Jatau by creech, which was followed by Jatau assaulting the co-accused Shankar upon his head by a lathi, due to which, he also received injuries and thereafter, the appellant is said to have chased the victim Jatau to village Simraha, where again, he is said to have assaulted by lathi and creech. 48. However, it is germane to point out here that PW-2 Ashok Singh, in his statement, has clearly stated that in the first incident, the appellant Tufani had assaulted the deceased with the creech (sharp edged weapon), however, in the subsequent incident, which is alleged to have taken place in the village Simraha, PW-2, in his statement, has categorically stated that ^^flejkgk xkao esa rwQkuh us dzhp ls tVk;w 'kadj dks ugha ekjk FkkA** 49. Thus, from his evidence, it is clear that the appellant Tufani had not assaulted the victim subsequently and this fact also finds corroboration with the postmortem report as only one incised wound is found on the person of the deceased, which could be caused by the creech and the same has been assigned to the appellant Tufani but apart from this injury, he has not caused any other injury to the victim. 50. PW-3 Ram Nazar Singh though in his statement has assigned the general role of assault by their respective weapon in the village Simraha also, however, the said factum does not find corroboration from the postmortem report as except one injury, which is said to be caused in village Pokhar-Bhinda by the appellant, no other injury by creech is found on the person of the deceased in the postmortem report. 51. From the aforesaid facts and circumstances, it is clear that the appellant Tufani has caused only a single injury on the head of the deceased and even that has not been found fatal as no internal damage is found under Injury No.3, which is said to be caused by creech. 52. In the backdrop of the said facts and circumstances of the present case, we find that the plea raised by the appellant that the incident, in which both the sides have received injuries, was neither pre-planned nor premeditated but was the result of sudden provocation emanating from sudden quarrel over the trivial issue of processing the paddy first. 53. It is further apparent that the appellant Tufani had not assaulted the deceased Jatau @ Jata Shankar with the intention of causing the death or with the knowledge that the assault made by him on the deceased would cause the death of Jatau. 54. Thus, in view of the foregoing discussions, we are of the view that the conviction of the appellant Tufani under Section 302 read with 34 I.P.C. cannot be maintained and the ends of justice will be met if his conviction is converted under Section 304 Part II I.P.C. and he is sentenced to undergo seven years rigorous imprisonment. The appellant Tufani is on bail. He shall be taken into custody and sent to jail for serving out remaining part of the sentence. His bail bonds are cancelled and sureties are discharged. 55. The appeal stands allowed in part and decided accordingly. 56. The appellant Tufani is on bail. He shall be taken into custody and sent to jail for serving out remaining part of the sentence. His bail bonds are cancelled and sureties are discharged. 55. The appeal stands allowed in part and decided accordingly. 56. Let a copy of this judgment and order be sent to the court concerned for intimation and necessary compliance. 57. Judgment be certified and placed on record.