This is an appeal under S. 379 of the Criminal P.C. read with S. 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) act, 1970. Ranjitsinh Chandrasinh Atodaria, original accused No. 1 is the appellant before us. He along with three others was tried for offenses punishable under S. 114 I.P.C. The trial Court acquitted all of them. The State preferred an appeal and the High court confirmed the acquittal of A-2 to A-4 but convicted the appellant under S. 302 I.P.C. and sentenced him to undergo imprisonment for life for the offence of committing the murder of Jitendrasinh the deceased in the case. The material facts are as follows

Accused Nos. 1 and 2 brothers of the deceased and Jashvantsinh (P.W. 2) were formerly residing at Village Sagdol. There after the appellant came to reside at Vadodara and hired a house in Atul Society. Thereafter other brothers also came to reside with him in that house. In 1975 the appellant was involved in a murder case and had to stay in jail for nearly one year. After he was released from jail, he went to stay at Village Sagdol and stayed there for about one year. After that he came to Vadodara and hired another house. During this period, brothers of the accused including the deceased and P.W. 2 stayed in the house in Atul Society. The rent was being paid by the deceased in the absence of the appellant. The appellant, however, demanded Rs. 5000/- to Rs. 7, 000/- from the deceased as the house stands in his name as a tenant. The deceased refused to purchase the house on those terms. Thereafter the appellant demanded the possession of the house and deceased and his brothers had some misunderstanding in this context. On 2-11-79 P.W. 2 had gone to Javernagar bus stand for purchasing Bidi. While returning he saw that the four accused were sitting near the culvert of javernagar Society. At about 9 p.m. the deceased was going towards the bus stand. On seeing him all the four accused went towards him and asked him to hand over the possession of House No. B-20 in Uma Society. Thereupon a quarrel ensued. During the said quarrel A-2 to A-4 caught hold of the deceased and A-1 is alleged to have inflicted a knife blow on the neck of the deceased. P.W. 2 also came there in the meantime and witnessed the occurrence and when he tried to intervene a second blow by the appellant caused an injury on his thumb. Thereafter the accused left the place. P.W. 2 took the deceased in the autorickshaw to the Hospital. In the hospital he died at about 10.30 p.m. The doctor who examined the injured deceased declared him dead. An information was sent to the Police. The Head Constable recorded the complaint of P.W. 2 and a case was registered and the investigation was taken up. The Police Inspector of Vadodara City after receipt of the information went to the scene of the occurrence, seized blood stained earth and other articles and sent the dead body for post-mortem examination. The doctor who conducted the post-mortem found on the deceased and braised contusion on the right maxillary region and one stab wound 1 1/2" x 1/2" on the neck and 1 1/2 away from medial end of clavicle. On internal examination the doctor found common cartoid and sub-cranial vessels were cut piercing the left side chest pleura. The doctor opined that death was due to this injury which was sufficient in the ordinary course of nature to cause death. On P.W. 2 the doctor found a linear cut superficial over root of the left thumb. The accused were arrested and after completion of the investigation the charge-sheet was laid. The plea of the accused is one of denial

2. The prosecution mainly relied on the evidence of P.W. 2 who was no other than the brother of deceased as well as of the appellant. P.W. 3 was another witness who spoke about the presence of P.W. 2. P.W. 3, however, did not actually witness the occurrence. The learned trial Judge held that P.W. 2 was an interested witness and an independent corroboration is necessary and also pointed out some discrepancies regarding the actual time of occurrence. The learned trial Judge felt hesitant to place the conviction on the basis of the evidence of P.W. 2 and accordingly acquitted all the accused. The High Court, however, held that P.W. 2s presence at the scene of the occurrence cannot be doubted in as much as he was also injured and that his evidence is trustworthy and the Court need not insist on any corroboration. Since appellant alone was attributed to the overt act which resulted in the death, the High Court convicted him under S. 302 I.P.C

3. In this appeal the learned counsel for the appellant submits that the prosecution case rests mainly on the evidence should be wholly reliable and in the instant case in view of the discrepancies P.W. 2s evidence cannot be made as the sole basis and the injury found on him was also superficial one and it could have been self-inflicted as opined by the doctor

4. We have gone through he evidence of P.W. 2. He is the brother of the deceased as well of the appellant. The whole incident took place because of a quarrel that preceded. The dispute was regarding a house which has been under the occupation of the brothers sometime or the other. P.W. 2 in his evidence has categorically stated that there was a quarrel between the deceased and the accused namely the other brothers. It is not even clear whether the other accused were aware that the appellant was even armed with a knife during the quarrel at 9.30 p.m. or 10 p.m. when the occurrence took place. The doctor found only one stab injury which unfortunately was on the neck because of the blow landing there. Under these circumstances it becomes very difficult to hold that he intended to cause that particular injury which was found to be sufficient in the ordinary course of nature to cause death by the doctor. The cause of death was due to shock and hemorrhage because of the cut of cartoid and other surrounding arteries. P.W. 2 evidence namely that there was a quarrel is also supported by the evidence of P.W. 3. The evidence of these two witness indicate that there was sudden quarrel and fight ensued. Therefore, the intention to cause that particular injury cannot be spelt out from the act committed by the appellant. So far as the presence of P.W. 2 is concerned, we are satisfied that he must have been there and witnessed the occurrence and his injury cannot be held to be self-inflicted. It is only an opinion of the doctor while answering the suggestion made to him. For all the above reasons we set aside the conviction of the appellant under S. 302 I.P.C. and sentence of imprisonment for life awarded thereunder. Instead we convict him under S. 304 Part - II I.P.C. and sentence him to undergo ten years Rigorous Imprisonment. If the appellant has already served out the sentence he may be released. But his is subject to the verification

5. The appeal is disposed of accordingly

Order accordingly.