( 1 ) THIS appeal is directed against the judgment dated 6th March, 1986 rendered by the. 2nd Additional Sessions Judge, Mandleshwar in S. T. No. 42/83, thereby convicting the appellant under Section 302, I. P. C. and sentencing him to suffer imprisonment for life.

( 2 ) THE prosecution story, in brief, was that on 4. 10. 1982 at 6-00 P. M. deceased Ramesh stood in the village chouk when the appellant Narsingh came there and demanded to know from him as to why he had abused his brother yesterday and threatened to kill him. The after, he inflicted injuries on Ramesh by means of the knife. The incident was witnessed by Tayabali (P. W. 6) and Ram Bliarose (not examined in this case ). Accompanied by his brother Narayanan (P. W. 2) deceased Ramesh came to police station, Sanawad and lodged the report Exh. P110 on the basis of which a crime under section 307, I. P. C. was registered. Ramesh was medically examined by Dr. P. K. Pasine (P. W. 4. The injury report marked in this case is Exh. P/3. Spot map Exh. P/6 was prepared. The weapon of assault, knife, was seized pursuant on formation and submitted for chemical examination. The report of the chemical examination is Exh. P/15. Certain clothes belonging to 8the deceased were also seized on 14. 10. 1982 vide/seizure memo Exh. P/4. The autopsy was conducted by Dr. G. S. Mittal (P. W. 7 ). The post-mortem report is Exh. P/7. After usual investigations, charge-sheet was filed in the court. The appellant was charged under Section 302, I. P. C. to which he pleaded not guilty. On trial, he was convicted and sentenced as above.

( 3 ) WE have heard Shri R. K. Trivedi learned counsel for the appellant and Shri G. S. Chouhan learned Dy. OA for the State/respondent and have perused the record.

( 4 ) SHRI R. K. Trivedi has submitted that the appellant has been wrongly held to be guilty of the offence punishable under Section 302, I. P. C. He urged that witness Ram Bharose named in the F. I. R. was not even examined. He criticised the appreciation of the Trial Court and submitted that the appellant deserved to be acquitted. Alternatively, he submitted that t-he incident as unfolded by the prosecution story occurred on the spur of moment and unfortunately the injured succumbed to the injuries after about five weeks. There was no intention to commit the murder or to cause particular injury and as such the appellant deserved to covinvicted only Under section 304-Il, I. P. C. Shri Chouhan, on the other hand, submitted that the Trial Court appreciated the evidence in correct legal perspective and there? Was no infirmity either in approach or in ultimate conclusion. As regards the nature of offence, he submitted that the appellant was rightly held guilty undersection 302, I. P. C. Alternatively, he submitted that looking to the entire facts and circumstances, the appellant should be convicted at least under Section 304 Part-I, I. P. C. rather than under Section 304 Part II, I. P. C. as urged.

( 5 ) THE question for determination is whether the appellant was rightly held guilty and if so, what is correct Section under which he deserved to be convicted.

( 6 ) THE conclusion of guilt is based on the following pieces of evidence-a) The report (F. I. R. Exh. P1 10) lodged by the deceased Ramesh. b) The statement of the deceased, Exh. P/14 recorded under Section 161 Cr. P. C. Exh. P110 and Exh. P/4 thus operated as dying declarations. c) The weapon of assault, knife, Art. TTKa was broken and recovered vide Exh. P113, pursuant to information recorded in Exh. P/120, 9. 10. 1982. A portion of this knife, Art. TTHT was taken out from the body of the deceased. These parts were submitted to chemical exan liner. The report Exh. P/15 returned the opinion as under: the metallic piece, art. TCT is a part of knife art. D. (Art. Ka and H above)d) Three witnesses testified to the dying declaration orally made to them. e) There was motive to assault as a result of abuses hurled to the brother of the appel