JUDGMENT 1. - This is an appeal against the judgment of the learned Additional Sessions Judge, No. 2, Jodhpur dated 26-8-1976 where by he has convicted the accused under Sections 302, 307 and 324 I.P.C. and sentenced him to life imprisonment, 4 years rigorous imprisonment and 1 years's rigorous imprisonment respectively. All the sentences were directed to run concurrently. 2. The facts giving rise to this case are that Om Prakash PW 1 complainant used to drive the taxi of accused Lal Singh. In the early January, 1976 an accident with his taxi took by Om Prakash. Om Prakash got the taxi repaired and delivered it to accused Lal Singh and also handed over the accounts of this taxi to the father of the accused Lal Singh. He stopped driving tie taxi of accused Lal Singh. On January 17, 1976 at about 7.30 a.m. Om Prakash along with deceased Tijendra Singh was sitting at the shop of PW 2 Madan Lal's Hair Dresser shop at Chopasani Road. At that time accused Lal Singh came there and picked up quarrel with Om Prakash on account of the taxi. The accused and Om Prakash came out from the shop of Madanlal. Soon after coming from the shop the accused wiped out a knife from his pocket and assaulted Om Prakash. Om Prakash received injuries on his neck and he fell down on the ground. Accused Lal Singh wanted to assault him second time at that time Tijeddra Singh came out from the shop and intervened in between, at that time the assault of Lal Singh with the knife struck in the stomach of Tijendra Singh, is a result of this he fell down on the ground. Meanwhile Om Prakash PW 1 escaped from that place. He was chased by Lal Singh at some distance. One Karansingh also tried to prevent the accused he also received injuries. Om Prakash could manage to reach his house. Tijendra Singh injured was immediately removed to the Hospital. The police was also informed on telephone. The Station House Officer Police Station, Sardarpura reached at the Hospital and there he found Om Prakash who has also received injuries and on the basis of the information given by Om Prakash a First Information Report was got written and thereafter sent for registration at Police Station, Sardarpura. Thereafter the accused Lal Singh was charged under Sections 307 and 326, 1PC. Thereafter the accused Lal Singh was charged under Sections 307 and 326, 1PC. Injured Tijendra Singh was also admitted in the hospital and injuries of PW 1 Om Prakash were also examined. Injured Tijendra Singh expired on 19-1-1976 at 4.50 a m. in the Hospital. His body was sent for post mortem and there after the accused was also charged under Section 302 I.P.C. The police took up the necessary investigation, prepared the site inspection memo as well as took the blood stained hand from the place of occurrence The accused was arrested on 24-1-1976 and on 25 1-1976 he gave an information which led to the recovery of the knife. His blood stained clothes were also seized. After close of the investigation the accused Lalsingh was charged under Sections 302, 307 and 324 I.P.C. and sent for trial to the learned Sessions Judge. 3. The prosecution examined about 9 witnesses and the defence-examined two witnesses. Out of the eye-witnesses except PW 1 Om Prakash all turned hostile. The learned Additional Sessions Judge after holding the trial found the accused guilty under Sections 302, 307 and 324 I.P.C. and convicted and sentenced the accused as aforesaid. Aggrieved against this the accused has preferred the present appeal. 4. We have heard learned Counsel for the appellant and the learned Public Prosecutor at length and have also perused the record. Mr. Purohit, learned Counsel for the appellant has challenged the testimony of PW 1 Om Prakash, who is said to be a lone eye-witness as the other eye-witnesses have turned hostile. Learned Counsel submitted that since Om Prakash is the only eye-witness of the whole incident, unless his testimony is of sterling worth the accused cannot be convicted. Learned Counsel has pointed out that this Om Prakash is not a reliable witness and the incident has not taken place as mentioned by him. Learned Counsel has submitted that as suggested by the defence Om Prakash was armed with a knife and there was a scuffle between Om Prakash and the accused Lal Singh, Tijendra Singh came to intervene and during the scuffle injury was caused to Tijendra Singh. 5. We have gone through the testimony of Om Prakash and the plea of the accused in order to probablise the story of the prosecution. 5. We have gone through the testimony of Om Prakash and the plea of the accused in order to probablise the story of the prosecution. After carefully considering over the matter, we are of the opinion that the testimony of PW 1 Om Prakash appears to be wholly reliable and there is no infirmity that could render the testimony of Omprakash unreliable. The accused has not disputed the happening of the incident but he has come forward with his version. The version given out by the accused appears to be wholly improbable. Nothing is impossible but looking to the version given out by the accused that Om Prakash was armed with a knife and there was a scuffle between the, accused and Om Prakash. The deceased came to intervene as a result of which the knife of Om Prakash got struck in the stomach of deceased Tijendra Singh. This is wholly improvable story for the simple reason that had there been a scuffle between the accused and Om Prakash, he would not have received the injury in the neck, more so, when Om Prakash and Tijendra Singh were there with knife the possibility of sparing the accused without any injury was too remote. There was a reason for the accused to be annoyed, as Om Prakash who used to run his taxi has left and the accused wanted him to drive the same. There was no cause for Om Prakash to be offensive. Thus, in the sequence of the events it appears that Om Prakash is reliable witness and the learned Additional Sessions Judge has rightly relied upon him. 6. Learned Counsel has also submitted that the accused has also received injuries, but these were not examined by the police. It has not been proved by the accused either by medical evidence or otherwise, that he has also received injuries in this scuffle. The incident took place on 17-1-1976 and the accused had voluntarily surrendered himself at the house of the Superintendent of Police, Jodhpur on 24-1-1976. If the accused had received any injury he could have got it examined during this time but he has not done so. Therefore, in the absence of any evidence it is difficult to believe that the accused has also received any injury. Thus, the plea of the accused does not improbablise the prosecution story. 7. If the accused had received any injury he could have got it examined during this time but he has not done so. Therefore, in the absence of any evidence it is difficult to believe that the accused has also received any injury. Thus, the plea of the accused does not improbablise the prosecution story. 7. Learned Counsel next submitted that in fact the accused never intended to cause death of the deceased as even if the story of the prosecution, as is accepted then too he cannot be held guilty for murder. Learned Counsel submits that in fact he intended to cause injury to Om Prakash, but by accident Tijendra Singh intervened and the blow fell on Tijendra Singh instead of Om Prakash. In these circumstances, the accused cannot be imputed with the knowledge that he is likely to cause such bodily injury so as to cause death of Tijendra Singh. In this connection, learned Counsel has invited our attention to Hardev Singh and Anr. v. The State of Punjab, AIR 1975 SC 179 . In that case, the common intention of the accused party (A, B and C) was to assault K, Only simple injuries were caused to him by accused A and C. It indicated that the accused party had not intended either to kill K or to cause any grievous hurt to him. It was not clear from the evidence that B aimed his Kirpan blow at the head of T. It might be that B wanted to give a Kirpan blow to T as she lay herself upon K but not necessarily on her head. Falling of the Kirpan accidentally on the head of T could not be ruled out. Therefore, it was held that B did not intend to cause the fatal injury to T but when he struck her with the Kirpan he must have known that the deceased then being in a bent position the blow could land on any vital part of her body and that it was likely to result in her death. B was, therefore, held guilty under Section 304, Part-I, I.P.C. The conviction of Hardev Singh was converted to Section 304, Part-I and he was sentenced to 7 years rigorous imprisonment. 8. Learned Counsel forcefully submitted that the present case is squarely covered by the contingencies which were contemplated in the case of Hardev Singh (supra). B was, therefore, held guilty under Section 304, Part-I, I.P.C. The conviction of Hardev Singh was converted to Section 304, Part-I and he was sentenced to 7 years rigorous imprisonment. 8. Learned Counsel forcefully submitted that the present case is squarely covered by the contingencies which were contemplated in the case of Hardev Singh (supra). We are inclined to agree with this submission of the learned Counsel for the appellant. It is true that the accused never intended to cause any injury to Tijendra Singh but be really intended to cause injury to injured Om Prakash, but some how the blow missed and Tijendra Singh became the victim. Thus in this view of the matter the accused cannot be held to be guilty under Section 302, I.P.C. as he never intended to cause any fatal blow to deceased Tijendra Singh. Thus, it would not be safe to convict the accused under Section 302 I.P.C., but the conviction of the accused is converted to under Section 304, Part-I and he is sentenced to 7 year's rigorous imprisonment and a fine Rs. 3,000/- in default of payment of fine he shall undergo further rigorous imprisonment for a period of two years. Rs. 2,500/-shall be paid to the victim's father, mother or his family members out of the amount of fine if so realised. The conviction of the accused under Sections 307 and 324, I.P.C. is confirmed. However, the substantive sentences shall run concurrently. The accused appellant is on bail. He is allowed one month's time to surrender himself before the learned Additional Sessions Judge, No, 2, Jodhpur to serve out the remaining sentence, failing which the Additional Sessions Judge shall get the accused appellant arrested and send him to jail to serve out the remaining sentence. 9. In the result, the appeal of the accused is partly allowed as indicated above.Appeal Partly Allowed. *******