JUDGMENT 1. 1. Both these appeals are directed against the judgment dated 4th September, 1980 passed by the Additional District & Sessions Judge No. 2, Baran in Sessions case No. 43/1980. These appeals have been filed by appellant Gopal Lal who was prosecuted for the offence punishable under Section 302 IPC for having caused the death of his mother-in-law, Smt. Ram Nathi, on 15th June, 1979. The Additional Sessions Judge has convicted the appellant for the offence under Section 302 IPC and has sentenced him to imprisonment for life and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo one months rigorous imprisonment. Criminal Appeal No. 366/80 has been filed by the appellant through counsel. Criminal Jail Appeal No. 28/1981 has been submitted by him directly from the Jail. 2. The case of the prosecution is that the appellant was unhappy with the deceased as she did not permit the wife of the appellant to go with him. On 15th June, 1979 at about 1. P. M. the deceased was coming to her village Phool Baroda and while she was on the way lying between Phooti river and river, the appellant assaulted the deceased with a gandasi and inflicted injuries on her person. The deceased was brought to her Village and while she was being taken to the hospital at Kawai she died on the way. The Report (Ex. P. 1) about the incident was lodged by Ramesh Chandra (P. W. 1) at P. S. Kawai on 15th June, 1979 at 3.30 P.M. The post mortem examination of the dead body was conducted by Dr. Sudarsan Dutta (P. W. 11) medical officer, Primari Health Centre. Atru on 15th June, 1979 at 5 P. M. and he prepared the postmortem report (Ex. P. 8). According to the postmortem report there was one incised wound, 31/2" x 1" x 2" over the back chest, right side, extending from the of suprascapular region transversely to the 7th cervical vertebra. The wound was found to have fractured the vertebral border of right scapula at its upper l/3rd and also the 7th cervical & 1st dorsal vertebra. The spinal Cord was found torn in the region extending from the 5th cervical to the 3rd dorsal vertebra. Profuse clotted blood was found in and around the wound. The wound was found to have fractured the vertebral border of right scapula at its upper l/3rd and also the 7th cervical & 1st dorsal vertebra. The spinal Cord was found torn in the region extending from the 5th cervical to the 3rd dorsal vertebra. Profuse clotted blood was found in and around the wound. According to the opinion of the Medical Officer the cause of death was shock due to injury to the spinal card caused by fractures of 7th cervical and 1st dorsal vertebra. After completing the investigation the police filed a charge-sheet against the appellant in the Court of Judicial Magistrate, Atru, who committed the appellant for trial in the court of Sessions and thereupon the appellant was tried by the Additional District and Sessions Judge No. 2 Baran. 3. Support of its case the prosecution relied upon the testimony of Mohanlal (P.W. 2) who was examited as eye-witness of the occurrence and the dying declaration of the deceased which has been proved by Ramesh Chandra (P. W. 1), Bhawani Shanker (P. W. 3) Lalita (P. W. 5), Bherulal (P. W. 6), Jan Alam (P.W. 8), Sureshbai (P. W. 13) and Prem Narain (P. W. 17). In addition the prosecution relied upon the recovery of the gandasi at the instance of the appellant. The prosecution has also led evidence of Ramesh Chandra (P. W. 1), Smt. Anokh (P. W. 12) the wife of the appellant, as well as Bhawanishanker (P. W. 3) and Nemichand (P. W. 4) to prove the motive, viz. the appellant was with the deceased because she did not agree to send the wife of the appellant with the appellant and the appellant had there at end that he would kill the deceased. 4. The Additional Sessions Judge did not place any reliance on the recovery of the gandasi since no blood was found on the same and the same was also not chemically examined. The Additional Sessions Judge was of view that reliance could be placed on testimony of Mohanlal (P.W. 2) the eye-witness of the occurrence as well as dying declaration of the deceased and the evidence with regard to motive for the appellant to commit the crime. The Additional Sessions Judge, therefore, convicted the appellant of the offence under Section 302 IPC and imposed the sentence referred to above. 5. The Additional Sessions Judge, therefore, convicted the appellant of the offence under Section 302 IPC and imposed the sentence referred to above. 5. Feeling disatisfied with the aforesaid conviction and sentence, the appellant has filed these appeals. 6. We have heard Shri A. K. Gupta the learned counsel for the appellant a support of these appeals and the learned Public (Prosecutor for the State. We have also carefully perused the record. 7. The evidence of Mohanlal (P. W. 2) who was the eye-witness of the occurrence, and the testimony of the other witness viz. P. W, 1,3,6,8,13 and 17 who have proved the dying declaration of the deceased shows that the appellant had inflicted the injury on the person of the deceased which led to her death. Shri A. K-Gupta, the learned counsel for the appellant has not been able to show any infirmity in the testimony of these witnesses. We have also perused the statement of these witnesses and, in our opinion, reliance can be placed on the same. In addition there is the evidence of Smt. Anokh (P.W. 12) the wife of the appellant and Ramesh Chundra (P. W. 1) with regard to the motive for the appellant to commit the crime. The prosecution has thus succeeded in establishing beyond reasonable doubt that the appellant was the person who had inflicted the injury on the person of the deceased with a gandasi and the said injury resulted in her death. 8. The next question which arises is with regard to the offence that has been committed by the appellant. Shri Gupta, the learned counsel for the appellant, has submitted that taking into consideration of the facts and circumstance of the case and especially the fact that the appellant had inflicted only one injury it cannot be said that the appellant had the intention to cause to the death of Smt. Ram Nathi. In this connection Shri Gupta has also submitted that no positive evidence has been adduced by the prosecution to prove that the injury found on person of the deceased was sufficient in the ordinary course of nature to cause death. In these circumstance, Shri Gupta has submitted that the conviction and sentence of the appellant for the offence under Section 302 IPC. cannot be sustained and he can only be held guilty of the offence punishable under Section 304 Part-II IPC. In these circumstance, Shri Gupta has submitted that the conviction and sentence of the appellant for the offence under Section 302 IPC. cannot be sustained and he can only be held guilty of the offence punishable under Section 304 Part-II IPC. The learned Public Prosecutor has however, submitted that the offence under Section 302 IPC. is fully made out against the appellant. 9. We find considerable force in the submission of Shri Gupta. From the evidence adduced by the prosecution it is established that only one injury was found on the person of deceased which indicates that the appellant had inflicted one blow only although he could have inflicted more blows on her. The prosecution evidence also shows that the injury was inflicted on the back of the deceased. Further more no positive evidence has been adduced by the prosecution to show that the injury found on the person of the deceased was sufficient in the ordinary course of nature to cause of death. In view of the circumstances referred to above it is not possible to hold that in inflicting the injury on the person of the deceased, the appellant had the to cause her death or had the intention to cause an injury which was sufficient in the ordinary course of nature to cause her death. In the facts and circumstances it can, however, be said that in inflicting the injury in the person of the deceased the appellant had the intention of inflicting an injury which was likely to cause her death. The conviction of the appellant for the offence under Section 302 IPC. cannot therefore be upheld but instead the appellant must be convicted of offences punishable under section 304 (1) IPC. In our opinion, the sentence of rigorous imprisonment for 7 years and a fine of Rs. 100/- and in default of payment toll undergo further rigorous imprisonment for a period of one month would meet the ends of justice. 10. In the result the appeal is partly allowed. The conviction and sentence of the appellant for offence under Section 302 IPC. are set-aside. Instead the accused appellant Gopal is convicted under section 304 Part 1, IPC. and sentenced to rigorous imprisonment for seven years and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month. are set-aside. Instead the accused appellant Gopal is convicted under section 304 Part 1, IPC. and sentenced to rigorous imprisonment for seven years and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month. The accused-appellant is in Central Jail, Jaipur. A Copy of this order-sheet be sent to Superintendent, Central Jail, Jaipur. *******