JUDGMENT Mr. Giridhar Malaviya, J. - Jabaar Khan has filed this appeal against his conviction and sentence in Sessions Trial No. 85 of 1979 as recorded by the IIIrd Addl. Sessions Judge, Banda by his order and judgment dated 31.7.1979. While exquitting the appellant under Section 304 Indian Penal Code learned IIIrd. Additional Sessions Judge convicted the appellant under Section 326 Indian Penal Code and awarded 7 years' rigorous imprisonment. The prosecution case as disclosed by the evidence is that deceased Razaaq Khan used to operate flour mill (Chakki). It is alleged that at about 6.30 P.M. accused Jabaar Khan came to the chakki of Razzaq Khan on 8.10.1978 and asked the accused that he had sold wheat flour to his son at the rate of 650 whereas the correct rate was 6.25. The victim said that the rate of the wheat flour was 6.50. When the accused started calling bad names the victim remonstrated. On this the accused appellant whipped out a knife and struck the victim in his ahdominalrtion. Nawah Khan and Hahhu witnessed this incident who saved the victim. The accused left the place. As there was no mode for transportation hence the victim could not go to police station Marodh within the jurisdiction of which police station the occurrence had taken place but went straight to Banda where the victim got a first information report dictated to Mazid Khan which was lodged at police station Kotwali the same night at 10.45 p.m. The incident as mentioned above was detailed in the First information as mentioned above was detailed in the First Information Report which was taken down at the police station on the basis of which the case was registered under Section 307 Indian Penal Code against the accused. After the case was registered the victims was sent along with chitthi majrubi for medical examination to district hospital Banda. He was examined by P.W.6 Dr. R.K. Mehortra at 11.45 p.m. who found one punctured wound 2 cms. X 1 cm. abdominal cavity deep on right side of upper part of abdomen 9 cms. below and medial to right nipple and 13 cms. above and lateral to umblicus at 4 O'clock position. He advised X-ray. The duration of the injury was found to be fresh. R.K. Mehortra at 11.45 p.m. who found one punctured wound 2 cms. X 1 cm. abdominal cavity deep on right side of upper part of abdomen 9 cms. below and medial to right nipple and 13 cms. above and lateral to umblicus at 4 O'clock position. He advised X-ray. The duration of the injury was found to be fresh. A dying declaration of the victim was also recorded on 9.10.1978 at 12.20 A.M. (mid night), by Tehsildar, Sri Shiv Kumar (P.W.8) in presence of P.W.6 Dr. R.K. Mehrotra who certified that the victim was in a fit state of mind to give the dying declaration. This dying declaration is Ext. Ka-6. The fact of recording of the dying declaration is also noted in the bed head ticket Ex. Ka.9. As the victim Razzaq Khan was also taken to Medical College, Allahabad for treatment where he was admitted on 9.10.1978 and remained in the hospital upto 6.11.1978, the learned Sessions Judge examined Dr. D.K. Mittal of the Medical College, Allahabad as C.W.2 since Dr. Mittal had operated the victim and had discharged him on 6.11.1978. Thereafter the victim seems to have been taken to L.L.R. Hospital, Kanpur for further treatment on 19.11.1978 where he ultimately died on 20.11.1978 at 2.30 A.M. As at Kanpur, the victim was under treatment of Dr. Prof. J.L. Rajdan. The learned Sessions Judge examined Dr. Rajdan also as C.M. 1. The case was initially investigated by S.I. Ram Sajiwan Singh but was ultimately completed by S.I. Rang Lal Pandey who submitted the charge sheet in this case on 22.12.1978 whereafter the accused was tried. The accused appellant denied the charge and claimed to be tried. Apart from the other evidence in this case of technical nature the prosecution relied on the testimony of two eye witnesses i.e. P.W.4 Nawab Khan and P.W.5 Habbu. The prosecution also relied on the dying declaration of the deceased made to the Tehsildar. The Prosecution also claimed the First Information Report lodged by the deceased to be the dying declaration admissible under Section 32 of the Evidence Act. The prosecution also relied on the dying declaration of the deceased made to the Tehsildar. The Prosecution also claimed the First Information Report lodged by the deceased to be the dying declaration admissible under Section 32 of the Evidence Act. Although the Sessions Court did not place reliance on the alleged dying declarations made by the victim Razzaq Khan in the form of the First Information Report and the statement made to the Tehsildar, it relied upon the testimony of P.W.4 Nawab Khan and P.W.5 Habbu alias Habib and found the accused to be guilty of committing assault on the deceased. The Sessions Court further found that as the death was not a direct cause on account of the injury inflicted to the victims by the accused, hence the charge under Section 304 I.P.C. was not made out but found that the accused was clearly guilty under Section 326 Indian Penal Code. I have heard Sri W.H. Khan learned Counsel for the appellant and Sri P.S. Adhikari Addl. Government Advocate. In this case there was a prompt First Information Report lodged at Banda on the date of the incident itself and the victim was also medically examined on the same night at 11.45 P.M. at Banda. The testimony of P.W.4 Nawab Khan is clear and categorical that he was present at Chakki where he used to operate it when the appellant arrived around 6.30 P.M. and asserted that the wheat was sold at 6.25 and why had the victim sold it at the rate of 6.50 to his son Razzaq Khan to victim went out of the chakki when the accused started calling him bad names. When Razzaq Khan said why he was calling bad names the accused said that he would deflate his abdomen and after saying this he struck a knife blow on him and fled away after taking out the knife. Witness said that apart from him Habbu was also present on the chakki. The witness was cross-examined but nothing substantial was elicited in the cross examination to doubt his testimony. P.W.5 Habbu alias Habiab also said that he had gone to the chakki on 8.10.1978 at about 6 P.M. to get his wheat grinded. He also narrated the entire version that was given out by Nawab Khan. He too was cross examined but nothing substantial was elicited in his cross-examination to discredit his testimony. P.W.5 Habbu alias Habiab also said that he had gone to the chakki on 8.10.1978 at about 6 P.M. to get his wheat grinded. He also narrated the entire version that was given out by Nawab Khan. He too was cross examined but nothing substantial was elicited in his cross-examination to discredit his testimony. I have also seen the medical evidence as also the evidence of the Investigating Officer Ran Lal Pandey P.W.9 and find that the evidence in this case is clear and there hardly appears to be any doubt that it was Zabaar Khan who on the evening of 8th October, 1978 at about 6.30 p.m. had struck a knife blow on Razzaq Khan. Sri W.H. Khan argued before me that the testimony of P.W.4 Nawab Khan could not be relied upon as he was working with the deceased Razzaq Khan. He also argued that Habbu alias Habib P.W.5 was a chance witness. I agree with the findings on this point recorded by the IIIrd. Addl. Sessions Judge, Banda that none of these arguments are of any consequence as both these witnesses are otherwise reliable. Sri W.H. Khan then argued that it was apparently a case where due to some heated exchange of words the appellant got infuriated and he whipped out a Knife which he struck in the abdomen of the deceased. He has also argued that on the basis of the testimony of the doctors the deceased did not die as a consequence of the injury which had been inflicted on him. Learned Counsel for the appellant has rightly placed before me the evidence of C.W.1 Prof. J.L. Rajan which makes it clear that the patient was too week and had difficulty in breathing. Learned Counsel also rightly points out that the patients was continuing with rectal bleeding on account of his 'bleeding piles' and all this resulted in his condition becoming low which ultimately caused the death of the patient. Sri P.S. Adhikari, learned Counsel for the State however said that the doctor had also said that the tornliver condition of the patient could also be a cause of the patient's ultimate death but Sri Khan argues that if two views are possible then the view which is beneficial to the accused should be admitted. Sri P.S. Adhikari, learned Counsel for the State however said that the doctor had also said that the tornliver condition of the patient could also be a cause of the patient's ultimate death but Sri Khan argues that if two views are possible then the view which is beneficial to the accused should be admitted. The contention of Sri Khan is that in view of the fact that there was no previous enmity between the parties and that there were some heated exchange of words and the fact that the accused has also been in jail for sometime, it would not be really serving the ends of justice if after a lapse of about 14 years the accused is sent back to jail. Sri Khan has pleaded that instead the accused may be subjected to fine and the fine may be paid over to the dependents of the victim's family so that the ends of justice may be met. Although the appellant had caused injuries with a knife but it appears that it was caused by him in pursuance of a sudden heated exchange of words between the parties. Under the circumstances it may be said that the offence which the appellant committed could fall within the ambit of Section 325 Indian Penal Code instead of 326 Indian Penal Code. Having given my anxious consideration to the submissions of respective Counsel for the parties I do agree with Sri Khan that there was no previous enmity between the parties and the incident was the outcome of a sudden altercation between the parties. The medical evidence is clear that the victim had been initially discharged from the hospital after being fully treated at Allahabad. It appears that the victim could not survive as he had bleeding piles. However the fact cannot be ignored that in the death of the victim the injury caused by the accused appellant could also have been a contributory factor. Looking at the circumstances of this case, I think a fine of 3,000/- together with the period of imprisonment already undergone by the appellant shall serve the ends of justice. This appeal is accordingly allowed in part, while altering the conviction of the appellant to Section 325 Indian Penal Code in place of Section 326 Indian Penal Code as recorded by the IIIrd Addl. This appeal is accordingly allowed in part, while altering the conviction of the appellant to Section 325 Indian Penal Code in place of Section 326 Indian Penal Code as recorded by the IIIrd Addl. Sessions Judge, Banda, I modify the sentence of imprisonment to the period already undergone coupled with a fine of 3,000/- to be deposited by the appellant within a period of two months from the date when the certified copy of this judgment is received the Court below. The fine so deposited shall be paid over to the dependents of Razzaq Khan. In the event of default in payment of fine as indicated above, the appellant shall undergo five years' rigorous imprisonment.