JUDGMENT 1. - This appeal is preferred against the judgment dated 25-3-1976 of the Sessions Judge, Udaipur. 2. Briefly stated the facts as alleged are these- On 30-5-1976 the cow of deceased Kana entered the filed of Boordas in Palna and caused some damage. Bhoordas was annoyed and he went to the house of Kana to remonstrate him He gave a kick on the stomach of Kana and somehow he died instantaneously. A report of the incident was lodged on the same day at police station Mavli. A case under section 302 I.P.C. was registered and usual investigation including the postmortem examination of the dead body of Kana was made and completed and thereafter a challan was filed in the credited. information report was promptly lodged. court of Munsif and Judicial Magistrate, Mavli and from there duly committed to the Sessions. The learned Sessions Judge curiously related the death of Kana with the alleged kick given by the appellant but convicted him only under section 325 I.P.C. and sentenced him to rigorous imprisonment for 18 months and a fine of Rs. 200/- in default of payment of which, further rigorous imprisonment for two months. 3. I have heard the learned counsel for the appellant and the learned Public Prosecutor and perused the record of the case carefully. It is vehemently argued by the learned counsel for the appellant that from the postmortem report, it is not established that the alleged kick given by the appellant was the cause of death of Kana or resulted in any grievous hurt to him. At the best if at all the appellant is guilty of an offence under section 323 I.P.C. 4. It is next contended that there is no reliable evidence to prove that the appellant gave a kick to deceased Kana. On the other hand the learned Public Prosecutor relied upon the eye witness account of the incident given by the wife of the deceased and the extra judicial confession of the appellant. I have considered these contentions carefully. I have gone through the statement of Dr. Laxminarayan. He stated that in his opinion the death was caused due to haemorrhage from anterior mediastinum pleural cavities and shock. In the cross examination he could not say the reason for the haemorrhage. I have considered these contentions carefully. I have gone through the statement of Dr. Laxminarayan. He stated that in his opinion the death was caused due to haemorrhage from anterior mediastinum pleural cavities and shock. In the cross examination he could not say the reason for the haemorrhage. From his statement therefore, it cannot be said beyond reasonable doubt that a kick given by the appellant led to this extensive internal haemorrhage. The doctor also stated that he did not see any external injury in the abdomen or the testicles. I could not find out how the learned Sessions Judge came to the finding that the deceased was caused a grievous hurt. There is no evidence available on the record of The case to this effect, The learned Sessions Judge observed in his judgment that the doctor admitted that this excessive haemorrhage could result by a kick of fist blow given on the pit of the stomach. However, the learned Sessions Judge failed to notice this admission of the doctor. In his cross examination, the doctor could not say the reason for haemorrhage and did not find any the first injury and as this has caused the total loss of the vision of left eye and as he has already blind by the right eye, he could not have identified the appellant. I have considered the argument carefully. In the statement before the court, P.W. 1 Purkharam has specifically stated that first, his nose was cut and, thereafter, other injuries were caused. From this statement, it is not possible to say that the first injury was caused to Purkharam in his left eye and, therefore, he could not have seen the assailants. Of course, P.W. 2. Bhinyaram has stated that Likhmaram caused an injury in the eye and on the head. From this statement, it is not possible to hold that the first injury was caused to the eye of Purkharam. 5. It is further argued by the learned counsel for the appellant that Purkharam is not a witness of sterling worth because in his statement at the trial he has tried to falsely implicate Bheru and Tulsaram. I have considered the argument carefully. It could not be said that Purkharam was not a witness of sterling worth as it appears that he has substantially deposed the truth at the trial. I have considered the argument carefully. It could not be said that Purkharam was not a witness of sterling worth as it appears that he has substantially deposed the truth at the trial. Of course, learned Sessions Judge though referred to the statement of P.W. 2 Bhinyaram and P.W. 3 Gopal but did not give any finding as to their credibility. However, I have gone through the testimony of these two witnesses and find no reason to disbelieve them. P.W. 2 Bhinyaram stated that Likhmaram appellant came and caused an injury to the eye of Purkharam and also gave a few more blows but he could not see the weapon of the offence. It was moonlit night and also hurricane was burning. They chased the appellant but he threatened that he has injured Purkharam and would also assault them. I have carefully gone through this statement but could find no reason to disbelieve him. P.W. 3 Gopal has stated that he heard the noise that Purkharam had been attacked he saw a man running and they chased him. Likhmaram threatened that he had already caused the injury to Purkharam. This statement though does not fully support the statements of P.W. 1 Purkharam and P.W. 2 Bhinyaram yet is sufficient to establish the identity of the assailant in the sense that he had chased him and Likhmaram admitted that he had caused injuries to Purkharam. No doubt, learned Sessions Judge did not rely on the recovery of the dagger or shirt and dhoti on the information of the appellant as it could not be established that these were stained with human blood. However, having considered the prosecution evidence. I am of the opinion that the statement of Purkharam is reliable and further corroborated by the testimony of P.W. 2 Bhinyaram and P.W. 3 Gopal. He was rightly convicted by the trial court. 6. It is vehemently argued by the learned counsel for the appellant that in the facts and circumstances of the case, the sentence imposed is excessive, It is rare that rigorous imprisonment for 10 years is awarded for an offence under section 326, I.P.C. I have considered the argument and find some force. Purkharam was caused grievous injuries. His nose was cut and his left eye lost the vision because of the injuries. Purkharam was caused grievous injuries. His nose was cut and his left eye lost the vision because of the injuries. However, the motive for the offence appears to be that Likhmaram appellant was prosecuting the injured and his father for the offence of murder of his wife. Having regard to all the facts and circumstances of the case, I think that the substantive item of 7 years would meet the ends of justice but sentence of fine needs no reduction. 7. The appeal is, therefore, dismissed but the substantive sentence of 10 years awarded to the appellant by the trial court is reduced to rigorous imprisonment for 7 years. The sentence of fine is maintained,Appeal partly allowed. *******