Judgment :- Gokulakrishnan, J.- The appellant was charged for an offence of murder. The allegation against him was that he caused injury to one Gunasekaran with a broken soda bottle on the right shoulder at about 5-30 p.m. on 23rd March, 1978 at the junction of Thatha Muthiappan Street and Broadway, Madras and that as a result of the said injury Gunasekaran died at the hospital at about 3-55 a.m. on 4th April, 1978. 2. The prosecution case was that Anbu Mani, the appellant, was behaving in a riotous manner at the junction of Thatha Muthiappan Street and Broadway in Madras at about 5-30 p.m. on 23rd March, 1978. He took out a Horlicks bottle by about 5-15 p.m. on 23rd March, 1978 from the shop of one Abdulla and broke it by throwing it on the road. When P.W.4 Abdul Rahman, working in the said shop of Abdullah, obstructed him from taking the Horlicks bottle, he slapped on his cheek. When P.W.4 was closing the shop, the accused took a soda bottle from the shop and broke it by throwing it on the street. Subsequently, according to P.W.5, a person came to his shop and took a soda bottle and broke it by throwing it on the street. The said person, according to P.W.5, had in his hand the top portion of the soda bottle which was broken into halves and was running towards the “Tip Top” shop situated near the junction of Thatha Muthiappan Street and Broadway. It is in the cross-examination of P.W.5 that it was the accused that took the soda bottle and the broken half he was having was identified as M.O. 1 later by him. It was the prosecution case that M.O. 1 was used for stabbing the deceased. 3. Even prior to this incident, a traffic constable. P.W.3, finding that the accused was behaving in a riotous manner, tried to catch hold of him. This traffic constable was hit by a piece of the soda bottle when thrown on the road by the accused and broken. After he was injured, P.W.3 tried to catch hold of the accused, but the accused extricated from his hold and went into Thatha Muthiappan Street, P.W.3 went to a lorry office nearby and phoned up to ‘100’ for getting police help. 4. After he was injured, P.W.3 tried to catch hold of the accused, but the accused extricated from his hold and went into Thatha Muthiappan Street, P.W.3 went to a lorry office nearby and phoned up to ‘100’ for getting police help. 4. In the meanwhile, it was the prosecution case, the accused, having the broken piece of the soda bottle in hand, was behaving in a riotous manner. The deceased Gunasekaran who came to the junction of Thatha Muthiappan Street and Broadway questioned him as to why he was creating disturbance in the public street. The accused resorted saying as to who he was to question him and beat the deceased. The deceased in turn beat the accused. At that point of time, according to the evidence of P.W.2 and also the report given by the deceased Gunasekaran, marked as Exhibit P-18, the accused, with the soda bottle in his left hand, gave a forcible stab on the right-side shoulder of the deceased. After receiving the injury, Gunasekaran fall down. Blood was coming out of the injury. 5. After inflicting the injury on the deceased, the accused rushed into the police line. P.W.9 and others who were talking near the pump house at the police line heard the noise “catch, catch” caught hold of the accused who was running there. By that time, P.W.10 a Head-constable who had come there in the police van on getting information from the Police Control Room regarding the disturbance created at the injunction of Thatha Muthiappan Street and Broadway, caught hold of the accused and took both the accused and the injured in the van. P.W.10 produced them at the B-2 Taw College Police Station. 6. P.W.19, a Head constable attached to the B-2 Law College Police Station, took a statement from injured Gunasekaran when he was produced by P.W.10. The statement is Exhibit P-18. He got the signature of the injured in the same. He registered a case thereon in Crime No. 236 of 1978 under section 324, Indian Penal Code. He also recovered from injured Gunasekaran M.O. 2 the lunghi, which was blood-stained. After registering the case, P.W.19 sent a copy of the first information report to the Metropolitan Magistrate’s Court and sent intimation to the Sub-Inspector of Police P.W.20 for taking up investigation. He also sent the injured Gunasekaran for treatment to the hospital. 7. He also recovered from injured Gunasekaran M.O. 2 the lunghi, which was blood-stained. After registering the case, P.W.19 sent a copy of the first information report to the Metropolitan Magistrate’s Court and sent intimation to the Sub-Inspector of Police P.W.20 for taking up investigation. He also sent the injured Gunasekaran for treatment to the hospital. 7. P.W.20, the Sub-Inspector of Police who was on bandobust duty at M.U.C. Grounds at about 6-30 a.m. on 23rd March, 1978 received the first information report Exhibit P-19 in Crime No. 236 of 1978 through a constable. He took up investigation and proceeded to the Stanley Hospital and -examined injured Gunasekaran in Ward No. 33 at about 6-45 p.m. Thereafter he went to the Law College Police Station and arrested the accused Anbu Mani at 7 p.m. He examined P.W.19 the Head-constable and recorded his statement. Subsequently he examined P.Ws.2, 3, 6 and others, at the scene, and prepared an observation mahazar Exhibit P-2 attested by P.W.6 and another. After returning to the police station by about 9-30 p.m. he examined the accused. The accused made a statement to him in the presence of P.W.17 and another. The admissible portion of the statement is Exhibit P-3. In pursuance of Exhibit P-3 the accused took P.W.20 to Mannadi Police Line and pointed out in a dust bin there, M.O. 1 broken piece of a soda bottle. P.W.20 took it without disturbing it and seized it under a mahazar, Exhibit P-4 attested by P.W.7 Marimuthu and another. He made necessary arrangements to inform the relations of injured Gunasekaran who were in Vyasarpadi. He examined P.W.15 the doctor who treated Gunasekaran at the Stanley Hospital. On 24th March, 1973, he examined the doctors P.Ws.11, 13 and 14 and the Head-constable P.W.10. He remanded the accused on 24th March, 1978. 8. On 4th April, 1978, injured Gunsekaran died at the hospital at about 3-55 a.m. P.W.12 the doctor certified to his death under Exhibit P-7. 9. P.W.21 Inspector of Police, C-1 Flower Bazar Police Station received Exhibit P-7 at about 11-15 a.m. on 4th April, 1978. Thereafter he took up investigation and altered the crime into one under section 302, Indian Penal Code, and sent express reports to his superiors, including the XVI Metropolitan Magistrate, George Town, Madras. Exhibit P-21 is the report sent to the Magistrate. Thereafter he took up investigation and altered the crime into one under section 302, Indian Penal Code, and sent express reports to his superiors, including the XVI Metropolitan Magistrate, George Town, Madras. Exhibit P-21 is the report sent to the Magistrate. He proceeded to the scene of occurrence with P.W.20 that night itself and collected the witnesses P.Ws.2 to 5 for examining them at the inquest. At the hospital, he examined P.Ws.11, 12, 14 and 15, the doctors. He then held an inquest over the dead body of Gunasekaran between 12-30 p.m. and 2-30 p.m. During inquest, he examined P.Ws.2, 3, 4 and 5, Exhibit P-22 is the inquest report. After inquest he handed over the dead body with a requisition to the doctor P.W.16 for conducting post mortem examination. 10. P.W.16, Professor of Forensic Medicine and Police Surgeon attached to the Government Stanley Hospital, Madras, "received Exhibit P-12 requisition from P.W.21. She commenced the post mortem examination on the dead body of Gunasekaran at 2-30 p.m. on 4th April, 1978 itself. Rigor mortis was present in the lower limbs of the body. She noticed the following injuries: (1) A deep lacerated injury on the right shoulder region, cutting through the deltoid muscle and exposing the bone. The entire wound was highly infected and pus was pouring down from the wound with loss of skin. (2) Sutured wound over the chin, 3 cm. (3) Incised wound on both the ankles of feet-infected (therapeutic). (4) Infected ulcers over the back (bed sores). On internal examination, the doctor found the air passages empty, the hyoid bone intact and the muscles of the thoracie cavity on the right side gangerenous and highly infected, exuding pus. It was in continuation with external injury No. 1. Exhibit P-13 is the post mortem certificate issued by her. According to the doctor, Gunasekaran had died of secondary infection of the wound sustained by him, and the injury on the shoulder could have been caused by a broken soda bottle like M.O. 1 with its sharp edges at the broken portion of it when used as a weapon of offence by the assailant on the deceased. The external injury No. 1, viz., the deep lacerated injury on the right shoulder region cutting through the deltoid muscles and exposing the bone, could have been caused by a weapon like M.O. 1. The external injury No. 1, viz., the deep lacerated injury on the right shoulder region cutting through the deltoid muscles and exposing the bone, could have been caused by a weapon like M.O. 1. The doctor has further stated that external injury No. 1 in Exhibit P-13 could have caused the death of the person indirectly and that the injury, as it was, as griexous, but not likely to cause death immediately. It is the clear statement of the doctor that death was due to secondary infection of the wound sustained by the injured, which was severe in nature, and also due to the lowered resistance of the person to the infection. The doctor has opined that the injury was not a necessarily fatal one, but in rare circumstances it may cause death. 11. The investigating officer sent requisition for sending the material objects to the Chemical Examiner. He also took necessary steps to get the finger print impressions on M.O. 1 and had them compared with the finger prints of the accused by the Finger Print Expert P.W. 13. According to P.W. 13 the accused’s finger prints were found on M.O. 1 the broken sode bottle, used as the weapon of offence in this case. Exhibits P-16 and P-17 are the reports of the Chemical Examiner and the Serologist respectively. 12. After completing the investigation, P.W. 21 filed the chargesheet on 23rd May, 1978 against the accused under section 302, Indian Penal Code, before the V11 Metropolitan Magistrate, George Town, Madras-1. 13. When the accused was questioned under section 313, Criminal Procedure Code, he admitted that he was behaving in a riotous manner at the time and the place as alleged by the prosecution. 13. When the accused was questioned under section 313, Criminal Procedure Code, he admitted that he was behaving in a riotous manner at the time and the place as alleged by the prosecution. He stated that P.W. 3 did not catch hold of him, that he was not taken in the police van as alleged by the prosecution, that he did not make any statement to the police, that he is not responsible for the injuries on the deceased, that he went to the B-2 Law College Police Station along with his mother on 23rd March, 1978, that he never produced M.O. 1 broken soda bottle as alleged by the investigating officer, that on the date of occurrence the deceased Gunasekaran who was coming that way questioned him as to why he was behaving in a riotous manner and that he the accused resorted by asking him as to who he was to question him. The deceased in his turn rebuked the accused stating that the accused was the son of a prostitute and asked him whether he is a big rowdy and threatened him saying that he would break his hands and legs. Thereupon, the accused beat the deceased. The deceased in turn beat the accused. Immediately thereafter the accused took a soda bottle from nearby shop which was tripped down by the deceased. The soda bottle broke when it fell on the road. Subsequently, both the accused and the deceased were beating each other and were rolling on the ground, grappling with each other. When the accused got up, he noticed a broken soda bottle piercing into the shoulder blade of Gunasekaran and blood gushing out from the wound. It is the further statement of the accused that even subsequent to the said incident, Gunasekaran started beating him and therefore he rushed towards his house. He informed the matter to his mother and his mother and he went to the B-2 Law College Police Station for the purpose of reporting the matter to the police. At the police station he saw injured Gunasekaran. After the accused had narrated the incident to the police, the police put him in the look-up. The next day by about 9 a.m., the police forced into his hand a broken bottle after threatening him and also beating him at the police station. At the police station he saw injured Gunasekaran. After the accused had narrated the incident to the police, the police put him in the look-up. The next day by about 9 a.m., the police forced into his hand a broken bottle after threatening him and also beating him at the police station. The bottle that was given to him was taken back by the police after covering it with a white cloth. Subsequently, his finger prints were taken by the police. On that day itself, he was taken to the Court and later put in the Central Jail Finally the accused pleaded that he is innocent. He examined his mother on his side as D.W. 1. 14. According to D.W. 1, she and her son the accused went to the B-2 Law College Police Station, she was kept outside, ‘the accused was taken inside, some time hence she heard her son weeping-and crying from inside, she was led to think that his son was being beaten inside and she was asked to go home. 15. On the evidence appearing against the accused, the learned Principal Sessions Judge of Madras Division found the accused guilty under section 302, Indian Penal Code, convicted him there under and sentenced him to imprisonment for life. Aggrieved by the conviction and sentence, the accused has preferred this appeal. 16. Mr. Krishnamani, the learned Counsel appearing for the appellant, tried to put forth the contention that the deceased Gunasekaran while rolling on the ground after grappling with the accused, accidentally rolled over the broken glass piece and sustained the injury. But, finding it difficult to pursue this contention in the light of the evidence of the direct eye-witness and also the other attendant cir-cumstances pointing to the riotous behaviour of the accused that day, the learned Counsel argued that the offence will not come under section 300, Indian Penal Code, and that if at all any offence had been committed by the accused, it is only under section 324, Indian Penal Code. No doubt, the learned Public Prosecutor tried to support the case of the prosecution for an offence under section 302, Indian Penal Code, but he was not able to substantiate the same in the light of the medical evidence on record. 17. No doubt, the learned Public Prosecutor tried to support the case of the prosecution for an offence under section 302, Indian Penal Code, but he was not able to substantiate the same in the light of the medical evidence on record. 17. That the appellant was behaving in a riotous manner by about 5-15 p.m. on 23rd March, 1978 at the junction of Thatha Muthiappan Street and Broadway is amply spoken to by P.Ws.2, 3, 4, 5 and 6. It is unnecessary for us to elaborately deal with this aspect of the case, since the evidence of these witnesses clearly and categorically establishes the riotous behaviour of the appellant at about 5-15 p.m. and subsequently, on 23rd March, 1978 at the junction of Thatha Muthiappan Street and Broadway. 18. The direct eye-witness to the occurrence is P.W.2. He is working as a cooly in the Chingleput District Co-operative Marketing Society situate at No. 150, Broadway, Madras. It is just opposite to the junction of Thatha Muthiappan Street and Broadway. According to P.W.2, the accused was creating GALATTA at the junction of Thatha Muthiappan Street and Broadway. He also spoke about P.W.3 a traffic constable catching holding of the accused and the accused extricating himself, and throwing a sode bottle on the road after taking it from the shop of P.W.4, which is nearby. He has stated that the accused took a soda bottle from “Savaran Nut-powder” shop and broke it by hitting it on the road. It is the evidence of P.W.2 that the accused had in his left hand the upper portion of the broken soda bottle. P.W.1 has identified it as M.O.1. As we see in Court, M.O. 1 has very sharp edges. The evidence of P.W.2, that the soda bottle was taken by the accused from P.W 5’s shop, and broken, is corroborated by the evidence of P.W.5. It is the further evidence of P.W.2, that when the accused was behaving in a riotous manner, the deceased Gunasekaran came that way and was talking to the accused. At that time, the accused, with the broken soda bottle in his left hand, which is M.O. 1 in this case, stabbed on the right shoulder of the deceased. On receipt of the injury, Gunasekaran fell down. After inflicting the injury, the accused Anbu Mani ran towards the Mannadi Police Line. At that time, the accused, with the broken soda bottle in his left hand, which is M.O. 1 in this case, stabbed on the right shoulder of the deceased. On receipt of the injury, Gunasekaran fell down. After inflicting the injury, the accused Anbu Mani ran towards the Mannadi Police Line. There is absolutely nothing elicited in the cross-examination of P.W.2, except for suggesting that he would not have been witnessing the occurrence at that time, to discredit his testimony. P.W.2, in our view, is a genuine witness and he in all probability must have been present at the scene of occurrence, since he is a cooly working at the Chingleput Co-operative Marketing Society situate just opposite to the scene of occurrence. P.W.2 has also stated that his hours of work extend up to 5-30 p.m., and he used to do over time work also in his office. The evidence of P.W.2 is cogent and trustworthy and we have absolutely no hesitation in believing the evidence of P.W.2. 19. The evidence of P.W.2 is amply corroborated by the statement of the deceased Exhibit P-18, and that statement is the first information report in this case. P.W.19 recorded that statement and registered the case. That statement, as on date, is in the nature of a dying declaration. In that statement Exhibit P-18, the deceased has specifically stated that while he was coming near the Tip Top shop on the evening of 25th March, 1978, he saw the accused Anbu Mani behaving in a riotous manner with a broken soda bottle in his hands. He questioned him as to why he was behaving in that manner. The accused resorted saying as to who he was to question him and also beat the deceased. The deceased also beat the accused. At that point of time, as per the dying declaration, Exhibit P-18, the accused with the broken piece of soda bottle which he had in his left hand, stabbed the deceased on his right shoulder. The time then was 5-30 p.m. on 23rd March, 1978. There was profuse bleeding from the wound. Subsequently it is in Exhibit P-18, the injured was taken in a police-van to the B-2 Police station. Thus, from Exhibit P-18 and also from the evidence of P.W.2, it is clear that Anbu Mani, the accused had inflicted the injury on the right shoulder of the deceased with M.O. 1. There was profuse bleeding from the wound. Subsequently it is in Exhibit P-18, the injured was taken in a police-van to the B-2 Police station. Thus, from Exhibit P-18 and also from the evidence of P.W.2, it is clear that Anbu Mani, the accused had inflicted the injury on the right shoulder of the deceased with M.O. 1. 20. P.W.20, the Sub-Inspector of Police, who came to the Law College Police-station after visiting the Stanley Hospital, arrested the accused Anbu Mani by about 7 p.m., on 23rd March, 1978. This Sub-Inspector got the information about the occurrence from the message sent by P.W.19. After arresting the accused, he recorded the statement made by the accused in the presence of P.W.7, the admissible portion of which is Exhibit P-3. The evidence of P.W.7, which is cogent and straightforward, corroborates the statement given by the accused. In pursuance of the statement Exhibit P-3, M.O. 1 broken piece of soda bottle, was received from a dust bin in the Mannadi Police Line, Broadway. It was seized under the mahazar Exhibit P-4 attested by P.W.7. The finger prints found on this M.O.1, tallied with the finger prints of the accused. This is spoken to by P.W.13, the Finger Print Expert. Nothing has been elicited in the cross-examination of P.W.13, to discredit his testimony. The recovery of M.O.1 in pursuance of the confession given by the accused has been established to be true by the evidence of P.Ws. 7 and 20. Hence it is clear that it was with M.O. 1 the accused had inflicted the injury on the right shoulder of the deceased. 21. From the abovesaid narration of facts established by the evidence, it is clear that the appellant had inflicted the stab on the right shoulder of the deceased with, M.O. 1 as alleged by the prosecution. Now, we have to consider whether the act of causing such an injury by the. accused will amount to an offence punishable under section 302, Indian Penal Code. 22. Injured Gunasekaran when he was taken to the Stanley Hospital was first seen by the doctor P.W.11 by about 6-20 p.m., on 23rd March, 1978. This doctor noticed the following injuries on his person: (1) Incised wound 1" X ¼" X ¼", on the chin. (2) Incised wound ½" X ¼" X ¼" on the chin close to injury No. 1. This doctor noticed the following injuries on his person: (1) Incised wound 1" X ¼" X ¼", on the chin. (2) Incised wound ½" X ¼" X ¼" on the chin close to injury No. 1. (3) Incised wound 3" X 2" X 3/4" on the right shoulder, front aspect. The doctor gave him the necessary first aid. The accident register prepared by P.W.11 is Exhibit P-6. In Exhibit P-6 it is seen that the doctor has reserved his opinion as regards the nature of the injuries. 23. Subsequent to the treatment given by P.W.11, P.W.15, Medical Officer attached to the Stanley Hospital, who was at that time the Duty Assistant Surgeon examined Gunasekaran at Ward No. 33 at about 6-45 p.m. According to this doctor, Gunasekaran was fully conscious then. The case-sheet prepared by this doctor is Exhibit P-10. He took Gunasekaran to the operation theatre and gave local anaesthesia and sutured his wounds after exploring the same. At the time, Gunasekaran was brought to the hospital, he was conscious, but due to profuse bleeding from the wound, he became restless and therefore he was taken to the operation theatre and local anaesthesia was given to him. This doctor states that all necessary treatment was given to the patient continuously by him. The doctor is of the opinion, that M.O. 1 broken soda bottle portion could have been used to cause the injury on the shoulder of the deceased. In cross-examination, this doctor has stated that when Gunasekaran was admitted in the hospital, there was no pus formation in the wound of the injured Gunasekaran. He also stated that the bleeding was profuse from the beginning and that the suturing done in the operation theatre could stop the bleeding only to a certain extent and not fully. He was specific that there was no pus formation in the wound till he left at 7 a.m., on 24th March, 1978. To a question as regards the bleeding from the wound, this doctor has stated that he had taken all precautions in suturing the wound, that even while he was suturing, the bleeding was more profuse and that if he had attempted to suture the wound with enthusiasm to arrest the bleeding, he would have lost the patient on the operation table itself. 24. 24. Subsequently to P.W.15 leaving the hospital at 7 a.m. on 24th March, 1978; P. W. 14, another Medical Officer, took over the patient Gunasekaran and treated him. He found the patient to be in a bad state of shock with low blood pressure. The injured was also unconscious and was restlessly moving his limbs. His pulse rate was rapid. This doctor says that in spite of best medical treatment, the injured died on 4th April, 1978 at about 3-55 a.m. In cross-examination. He states that every half an hour the injured Gunase-karan was taken care of and that immediately after he took charge of the patient he gave one bottle of blood transfusion to him. This witness also states that massive dose of antebiotics, viz., pencillin, acromycin, ampecillin, was given in order to kill any organism that will produce septcaemia. He has flatly denied the suggestion to the effect that the patient died due to over dosage of anti-biotics. No doubt, he has stated to a question put by the Court that the injured continued to be dangerously ill till he breathed his last. We are of the view that the word “dangerously” ill was used loosly and that the doctor would have meant that the patient was in a serious condition. We find in the cross-examination of this witness a specific statement that the injured Gunasekaran was bleeding profusely from the wound and that was why blood transfusion was given to him. P.W.15 has further stated that the death of the injured Gunasekaran itself shows that he had not responded to the drugs administered to him by a team of doctors. The evidence of this doctor clearly proves that the wound got infected and that it may be due to the fact that the wound was caused by a broken soda bottle. Thus the doctor’s evidence clearly establishes that in spite of best treatment, bleeding could not be stopped. This clearly establishes that the injured Gunasekaran was suffering from heamophilia. No doubt, there is no specific evidence to this effect. The evidence given by the doctors regarding the profuse and non-stop bleeding in the course of the treatment given, including Vitamin K, proves that the injured was suffering from haemophilia. 25. Then, we have the evidence of the doctor who conducted the postmortem examination, viz., P.W.16. No doubt, there is no specific evidence to this effect. The evidence given by the doctors regarding the profuse and non-stop bleeding in the course of the treatment given, including Vitamin K, proves that the injured was suffering from haemophilia. 25. Then, we have the evidence of the doctor who conducted the postmortem examination, viz., P.W.16. She is Professor of Forensic Medicine and Police Surgeon attached to the Stanley Hospital, Madras. We have already extracted the injuries as described by this doctor. She has specifically opined that the injuries could have been caused with M. O. 1 broken soda bottle. This doctor is specific that the injured Gunasekaran was under nourished and should have had lower resistance to infection. As regards the cause of death, this doctor says that death was due to “secondary infection” which was severe in nature, and was also due lower resistence of the person to infection. She had made it clear that the injury by itself is not necessarily fatal, but in rare circumstances it may cause death. When asked about the meaning of “secondary infection”, the doctor has stated that it is super-added infection with extraneous group of organism which may be autogenous infection or cross-infection. It has been brought out in the cross-examination of this doctor that injury No. 4 in Exhibit P-13 bed-sores could have been infected from the faces of the deceased himself and that injury No. 3 could have been from an extraneous source, because it is an open wound. The doctor has further stated that injury No. 1, viz., the lacerated injury on the right shoulder region cutting through the deltoid muscle, by itself, need not be necessarily fatal. According to her, the injury in course of time would have become highly infected and caused the death of the person. 26. Thus, from the evidence of the doctors, including that of the doctor who conducted autopsy, it is clear that the injury caused with M.O. 1 as spoken to by the prosecution witnesses, is not a fatal injury. The injury had been inflicted as early as 23rd March, 1978 and the injured died on 4th April, 1978. The patient had not responded to the anti-biotics, and inspite of suturing and administration of medicine for stopping the bleeding, it has not stopped. From this it can be easily inferred that the injured was suffering from haemophilia. The injury had been inflicted as early as 23rd March, 1978 and the injured died on 4th April, 1978. The patient had not responded to the anti-biotics, and inspite of suturing and administration of medicine for stopping the bleeding, it has not stopped. From this it can be easily inferred that the injured was suffering from haemophilia. The injury caused with no intention to cause the death of the victime and without knowing that the injured had been suffering from haemophilia, cannot be construed as an injury inflicted for committing the murder of the deceased as per the definition of section 300, Indian Penal Code. The doctor who conducted the autopsy has definitely stated that the injury is not a fatal one. The facts and circumstances of the present case clearly spell out that there could not have been any intention on the part of the accused to cause the death of the deceased by inflicting the injury. No doubt M.O. 1, which we have been in Court has very sharp and it is a piece of broken soda bottle. This is definitely a dangerous weapon and if that weapon is used on a vital part of the body it would have caused instantaneous death of the victim and in that case the assailant will come under the definition of section 300, Indian Penal Code. In this case, the evidence makes out that the accused had inflicted the stab on the right shoulder of the deceased. From the description of the injury it cannot be said that it is a fatal injury. But for the fact that the deceased was under-nourished and was suffering from haemophilia and also affected by secondary infection of septicomia, the victim would have survived. The decisions cited by the learned Public Prosecutor reported in Nga Paw v. Emperor1and Nga Ba U v. Emperor2, and the judgment of this Court in C.A. No. 983 of 1973 are cases in which the doctor who conducted the autopsy had specifically stated that the injury inflicted was sufficient in the ordinary course of nature to cause death. Further, the injury inflicted in those cases was on vital part of the body and proved fatal. Hence those decisions will not be applicable to the facts of the present case. 27. Further, the injury inflicted in those cases was on vital part of the body and proved fatal. Hence those decisions will not be applicable to the facts of the present case. 27. In Chikati, Guruvulu, In re3, a Bench of our High Court, dealing with a case in which the appellant had caused injures to the nostrils of the deceased while snatching the jewel from her nose, as a result of which she died, held that the intention could only have been to cause those injuries and in the absence of any evidence that the injuries were sufficient in the ordinary course of nature to cause death or were such as the appellant knew to be likely to cause death, or were so imminently dangerous that they must in all probability cause death, the charge of murder must fail. Ultimately the Court convicted the accused under section 325, Indian Penal Code, and sentenced him to rigorous imprisonment for five years. That is a case where the injury was caused on the face of the deceased. Hence the bench spelt out ‘grievous injury’ as having been caused by the appellant to the victim. As far as the present case is concerned, we do not find any material to convict the accused under section 302, Indian Penal Code, or even to convict him for an offence under section 302, Indian Penal Code. Though the accused had used M.O. 1, which is dangerous weapon, in inflicting the injury, there is no evidence to bring the offence under the definition of section 320, Indian Penal Code. Eighthly of section 302. Indian Penal Code reads: "Any hurt which endangers life or which causes the sufferee to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits." Will come under the categories hurt "such type of injury is not made out By the prosecution in this case. No doubt it has been feebly suggested by the learned Public Prosecutor that the injured was put in the "danger list" from the date he was admitted as an inpatient at the Stanley Hospital. The evidence of the doctors clearly establishes that the injured died of "secondary infection", and the injury as such inflicted by the accused has not been spoken to by them as one which would endanger the life of the victim. The evidence of the doctors clearly establishes that the injured died of "secondary infection", and the injury as such inflicted by the accused has not been spoken to by them as one which would endanger the life of the victim. Therefore, clause Eightly of section 320, Indian Penal Code, will not be attracted to the facts of this case. 28. Therefore, we are of the view that section 324, Indian Penal Code, alone will apply to the facts of this case, M.O. 1, which is a dangerous weapon, had caused hurt to the deceased on the right shoulder. The attitude and behaviour of the accused has to be condemned. He has taken the law into his own hands and behaved in a riotous manner in the heart of the City by about S-30 p.m., on 23rd March, 1978. He had broken soda bottles after taking them from nearby shops and finally attacked the deceased who happened to pass by, by stabbing him on his right shoulder with a broken piece of the soda bottle. The prosecution, in our view, has clearly proved an offence under section 324, Indian Penal Code. Therefore, the appellant has to be convicted and sentenced under section 324, Indian Penal Code. 29. In these circumstances, the conviction and sentence given by the Sessions Court under section 302, Indian Penal Code, are set aside, and instead the appellant is convicted under section 324, Indian Penal Code, and sentenced to undergo three years’ rigorous imprisonment With this modification in the conviction and sentence, the criminal appeal is dismissed. Appeal dismissed with modification in the conviction and sentence.