JUDGMENT P. N. Goel, J. -Pradeep Kumar Pathak has been convicted and sentenced under S. 304, I. P. C. to undergo R. I. for 10 years by order dated 27-8-1976 passed by IInd Additional Sessions Judge, Moradabad in Sessions Trial No. 327 of 1975. 2. The appellant is the son of Shyam Lal Pathak and lives in Mohalla Kan-jari Sarai, Parshadi Lal Road, Civil Lines, Moradabad, Munish Chandra (P. W. 1) and his son Chandra Mohan, aged about 22 years lived in the same locality in the year 1975. On 25-5-1975. Munish Chandra and his son Chandra Mohan were coming in the rickshaw of Faiyaz (P. W. 2) from a locality called Amroha Gate towards their mohalla. Their rickshaw reached in front of the L shop of Nirmal Saxena tailor. Munish Chandra and Chandra Mohan got down from the rickshaw. The appellant happened to come there and told Chandra Mohan that he was his friend, that he insulted him by giving abuses, that he should now see his hostile attitude and that he would not leave him alive. Immediately saying so the appellant took out a knife from the pocket of the pant and struck it at the chest of Chandra Mohan. Chandra Mohan fall down. Munish Chandra with the help of Pitam (P. W. 3) lifted him and then took him to the hospital in the rickshaw of Faiyaz. On reaching the hospital Chandra Mohan died at about 2 P.M. 3. Munish Chandra obtained paper from the hospital, wrote a report and went to the police station, Civil Lines and lodged the report at 3.05 P. M. 4. Jai Dutt Sharma, Station Officer (P. W. 6) took up investigation. He interrogated Munish Chandra and one Har Dayal Singh at the police station. Then he reached the scene of occurrence, prepared site-plan and interrogated Faiyaz, Pitam and others and took the blood-stained shirt and paijama of Pitam in his custody. The appellant was not available to him. He gave report under Sections 82 and 83, Cr. P. C. against the appellant. The appellant surrendered in Court on 7-6-1975. 5. The appellant did not admit to have assaulted Chandra Mohan as alleged. 6. The prosecution examined Munish Chandra, Faiyaz and Pitam to prove its case. Pitam stated that he had not actually seen the person who had assaulted Chandra Mohan. P. C. against the appellant. The appellant surrendered in Court on 7-6-1975. 5. The appellant did not admit to have assaulted Chandra Mohan as alleged. 6. The prosecution examined Munish Chandra, Faiyaz and Pitam to prove its case. Pitam stated that he had not actually seen the person who had assaulted Chandra Mohan. This part of his statement was in variance with the statement under S. 161, Cr. P. C. Therefore, he was declared hostile by the prosecution Munish Chandra and Faiyaz fully proved the case of the prosecution. 7. The appellant examined 3 witnesses Raj Kumar, Panna Lal and Uma Shankar Gupta (D. Ws. 1 to 3). Raj Kumar is a clerk in the Municipal office. He used to deal with the licences issued to rickshaw pullers. He brought relevant register. He stated that Faiyaz obtained licence to drive rickshaw on 21-6-1975 and not before. Panna Lal is uncle of the appellant. He stated that Faiyaz P. W. gave evidence in the year 1959 against his father in a case under S. 60, U. P. Excise Act. Uma Shankar Gupta is a clerk in the bail section in the office of Divisional Superintendent Railway, Moradabad. He stated that one Sardar Harbans Singh was a T. T. and that he was out of Moradabad from 24-5-1975 to 26-5-1975. It means that Harbans Singh was not at Moradabad on the date of occurrence. The appellant examined Uma Shankar Gupta because Munish Chandra stated in cross-examination that after the occurrence some persons came up, namely, Kochar, Sardar Harbans Singh, Sagarmal Gupta and others. 8. On an appraisal of the evidence led by the parties the learned IInd Additional Sessions Judge believed the testimony of Munish Chandra and Faiyaz and found the case of prosecution proved against the appellant. The appellant was tried for an offence punishable under S. 302, I.P.C. but the learned Additional Sessions Judge convicted the appellant under S 304, Part I, I.P.C. 9. Learned counsel for the appellant has urged that the trial Judge committed an error in believing the evidence of Munish Chandra Saxena and Faiyaz. The appellants counsel read the evidence of the prosecution witnesses. 10. In the report Munish Chandra mentioned the name of Pradeep Pathak of his locality as the assailant. He did not mention the name of his father in the report. The appellants counsel read the evidence of the prosecution witnesses. 10. In the report Munish Chandra mentioned the name of Pradeep Pathak of his locality as the assailant. He did not mention the name of his father in the report. His statement shows that he gave out the name of the appellants father in his statement under S. 161. Cr. P. C. Jai Dutt Sharma, investigating officer interrogated Munish Chandra at the police station immediately after the report was lodged. There is nothing on record to show that Munish Chandra did not disclose the name of the father of the appellant in his statement under S. 161, Cr. P. C. In this way the identity of the appellant is fully established. Attempt was made to show in cross-examination of Munish Chandra that there was another Pradeep Kumar Pathak in the mohalla of Munish Chandra but Munish Chandra showed complete ignorance about it. The appellant did not lead any evidence that there was any other Pradeep Kumar Pathak in their locality. 11. It was pointed out that Munish Chandra wrongly stated that. Sardar Harbans Singh had come to the scene of occurrence. This contention is based on the testimony of Uma Shankar Gupta, D. W. It will be noticed that the evidence of Uma Shankar Gupta related to Sardar Harbans Singh living in the locality of the parties. Munish Chandra Saxena was not Questioned that Sardar Harbans Singh lived in his locality. Particulars of Sardar Harbans Singh were not ascertained from him. Therefore, on the basis of the statement of Uma Shankar Gupta it cannot be held that Munish Chandra had wrongly stated that Sardar Harbans Singh had come up after the occurrence. 12. It was pointed out that Pitam (P. W. 3) admitted in cross-examination that he was arrested by the police on the date of occurrence and that in this respect one Yogendra Narain Sharma had given a telegram to the Superintendent of Police. There is a certified copy of a telegram given by Yogendra Narain Sharma to the Superintendent of Police in which it was stated that the police was falsely implicating Pitam in the murder of Chandra Mohan Saxena, suffice it to say that Munish Chandra did not implicate Pitam in the first information report. There is a certified copy of a telegram given by Yogendra Narain Sharma to the Superintendent of Police in which it was stated that the police was falsely implicating Pitam in the murder of Chandra Mohan Saxena, suffice it to say that Munish Chandra did not implicate Pitam in the first information report. On the other hand he mentioned in the report that he lifted his son with the help of Pitam and placed him in the rickshaw. In doing so the clothes of Pitam got blood-stained. Jai Dutt Sharma investigating officer took his blood-stained clothes into his custody. Jai Dutt Sharma was not questioned in cross-examination as to why Pitam was arrested. In these circumstances the fact, that Pitam was arrested by the police on the date of occurrence does not give any benefit to the appellant. The testimony of Munish Chandra has not been assailed on any other ground. Munish Chandra is the father of Chandra Mohan injured. He was not hostile to the appellant from before the occurrence. There ,is no reason for Munish Chandra to falsely implicate the appellant. Hence the statement of Munish Chandra alone is sufficient to fasten the guilt upon the appellant 13. Statement of Munish Chandra gets corroboration from the statement of Faiyaz. Faiyaz appears to be in the habit of giving statements in police cases. But in the present case his testimony cannot be ignored on this account because there is positive statement of Munish Chandra that on the date of occurrence he and his son were coming in the rickshaw of Faiyaz and that after the incident he took his son to the hospital in the rickshaw of Faiyaz only. Munish Chandra clearly mentioned his name even in the first information report. Therefore, on the ground that Faiyaz gives evidence under the influence of the police the evidence of Faiyaz in the instant case cannot be ignored. 14. The position that follows is that the case set up by the prosecution has been proved to the hilt by the testimony of Munish Chandra and Faiyaz and that the evidence of the defence witnesses do not go to help the appellant. 15. The appellants counsel next contended that the sentence was severe. 14. The position that follows is that the case set up by the prosecution has been proved to the hilt by the testimony of Munish Chandra and Faiyaz and that the evidence of the defence witnesses do not go to help the appellant. 15. The appellants counsel next contended that the sentence was severe. The appellant was tried for an offence punishable under S. 302, I. P. C. Statement of Munish Chandra coupled with the first information report clearly shows that the appellant struck knife at the chest of Chandra Mohan saying that he would not leave him alive because he had insulted him by giving abuses on the date of occurrence. It is thus obvious that it is a case of intentional thrust of knife into the chest. Chandra Mohan died within half an hour of the occurrence. Therefore, the case clearly falls within Part IV of S. 300. Knife is a deadly weapon. It can prove imminently dangerous. 16. The learned Additional Sessions Judge has convicted the appellant under S. 304, Part I, I. P. C. for the following reasons:- (1) There is no evidence which may establish that the accused intended to inflict such a bodily injury which is sufficient in the ordinary course of nature to cause death. (2) It is certainly true that the injury actually inflicted resulted in the death of the victim., But there is nothing to establish that the accused, who struck a single knife blow on the right side of the chest telling him "Men Tujhe Samjhoonga" intended by that blow to cause such bodily injury which would be sufficient in the ordinary course of nature to cause death though when a person attacks another and stabs in his chest even on the right side it can be safely presumed that he at least intended to cause such bodily injury which was likely to cause death and in this view of the matter I am of the opinion that in absence of proof that the accused intended to cause such bodily injury as is sufficient in the ordinary course of nature to cause death he will be liable for the lesser offence of culpable homicide not. amounting to murder punishable under S. 204, Part I. I. P. C." Both the reasons given by the learned Additional Sessions Judge, are erroneous. The prosecution had filed the post-mortem report. amounting to murder punishable under S. 204, Part I. I. P. C." Both the reasons given by the learned Additional Sessions Judge, are erroneous. The prosecution had filed the post-mortem report. The prosecution gave an application under S. 294, Cr. P. C. The defence counsel admitted the genuineness of the post mortem report. Therefore. Dr. S. K. Mukherjee who conducted the post mortem examination was not produced by the prosecution. In case under S. 302. I. P. C. it is the duty of the trial Judge to find whether the injury was sufficient in the ordinary course of nature to cause death or not. Therefore, the learned Additional Sessions Judge should have summoned Dr. S. K. Mukerjee and ascertained from him whether the injury found on the person of Chandra Mohan was or was not sufficient in the ordinary course of nature to cause death. Without examining Dr. S. K. Mukerjee the learned Addl. Sessions Judge was not justified in observing that there was no evidence which established that the accused intended to inflict bodily injury which was sufficient in the ordinary course of nature to cause death. It will be noticed that Chandra Mohan died within half an hour of the occurrence. This fact is clearly indicative of the fact that the injury was sufficient in the ordinary course of nature to cause death. It is further evident that the appellant intentionally caused a knife injury at the chest of Chandra Mohan. The post mortem examination revealed that pleura, right lung and pulmonary artery through and through were cut. In these circumstances the first reason assigned by the learned Additional Sessions Judge is wholly erroneous. 17. With regard to the second reason, no doubt, Faiyaz stated that the appellant said to Chandra Mohan that "Men Tujhe Samhjoonga". But the learned Addl. Sessions Judge completely ignored the positive statement of Munish Chandra Saxena that the appellant clearly said that he would not leave Chandra Mohan alive. His statement was corroborated by the first information report. Therefore, the learned Additional Sessions Judge should not have felt satisfied by the words used by Faiyaz only. 18. It will further be noticed that the learned Addl. Sessions Judge did not take into consideration Cl. IV of S. 300, I. P. C. which reads as follows. His statement was corroborated by the first information report. Therefore, the learned Additional Sessions Judge should not have felt satisfied by the words used by Faiyaz only. 18. It will further be noticed that the learned Addl. Sessions Judge did not take into consideration Cl. IV of S. 300, I. P. C. which reads as follows. "4thly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death of such injury as aforesaid." This clause does not envisage intention. This clause envisages knowledge. An assailant causing deep injury in the chest with a deadly weapon like knife, spear, gun etc. must know that he was doing imminently dangerous act which in all probability would cause death or such bodily injury as was likely to cause death. It is a matter of common knowledge that the vital organs are found in the chest. 19. In view of the above, the second reason given by the learned Addl. Sessions Judge is also wholly erroneous. 20. The position that follows is that it was a case in which the appellant should have been convicted under Sec-302, I. P. C. 21. In this aspect of the matter the sentence of 10 years R. I. cannot be considered severe and as such no interference can be made by this Court. 22. There is absolutely no merit in the appeal. 23. Appeal is dismissed and the order dated 27-8-76 passed by the IInd Additional Sessions Judge convicting and sentencing the appellant under Section 304, Part I, I. P. C. is affirmed. The appellant is on bail. He shall forthwith be taken into custody to serve out the sentence.