BALIA, J.—This is an appeal against the judgment dated 31.2.1985 passed by the learned sessions Judge, Bikaner by which accused appellant Rule alias Abdul Salam on of Abdul Caul was convicted under Sec. 302, 342 IPC & 25 of the Arms act and was sentenced to life imprisonment together with fine of Rs. 50/- and in default to further under go one months R.I. for the offence under Sec. 302 IPC, six months R.I. for the offence under Sec. 342 IPC and for the offence under Sec. 25 of the Arms Act, one years R.I. Accused appellant Hamid alias Abdul Hamid son of Alladin convicted under Sec. 302/114 342 IPC and 27of the amrs act and sentenced to life imprisonment with a fine of Rs. 50/- and in default of payment of this amount of fine to further undergo one months R.I. for the offence under Sec. 302/114 IPC, six months R.I. for the offence under Sec. 342 IPC and for the offence under Sec. 27 of the Arms Act one year R.I. (2) According to prosecution, on 18.6.83 at about 3.45 P.M., Gulam Mohd. PW 1 lodged F.I.R. Ex. P.l with the allegation that in the night of 17.6.83, Kalu who is brother in law of his sons Hasrat Ali and Liyaqat Ali with his friend whom he called as Hamid, came to his house and received hospitality at his house. In the morning. Kalu and Hamid, both, left his home. He himself went to his office. While he was returning home in the afternoon during lunch period because he was observing fast due to Ramjaan, he met in ka bas both Kalu and Hamid at 1.45 P.M. and they asked for being served with meat at lunch for which he agreed and all the three came to his house. Accused Kalu asked Gulam Mohd. that he wants to meet Gulam Mohd.s wife main and Kalu was sent inside the room where Main was there. Thereafter, his two daughters Rashida Khatun & Rahisa Banu were also called in the room. Alongwith them, Gulam Mohd. also went in the room and having all of them in the room, Kalu asked Gulam Mohd.s wife to stand up and drew his knife and Hamid drew pistol from his pocket and asked not to make noise. Thereafter, Kalu look Maina to gumariya (underground). Alongwith them, Gulam Mohd. also went in the room and having all of them in the room, Kalu asked Gulam Mohd.s wife to stand up and drew his knife and Hamid drew pistol from his pocket and asked not to make noise. Thereafter, Kalu look Maina to gumariya (underground). Hamid remained with the other persons in the room and then they heard the cries of Gulam Mohd.s wife. On going there, they saw that Mst. Maina was laying on floor and was bleeding who told that Kalu has stabbed in her stomach. They found that there were two stab wounds on her stomach. Meanwhile Kalu and Hamid forced both the girls also in the gumariya (Underground) and closed the door from the outside and went away. After breaking open the door, Gulam Mohd. raised cries, hearing which his neighbours Gaffar Chhipa, Ahsan Mohd. Pinjara, Gulam Mohd. Chhipa and Khaju Chhipa came there. His sons also came there by that time. Mst. Maina was removed to hospital with two sons and Gulam Mohd. came to the police station for lodging the report In the F.I.R., it was attributed by Gulam Mohd. that for quite some time, there is enmity between the complainant and his sons on the one side and in laws of his sons on the other side because on 13.5.83, wife of Liyaqat Ali Mst. Sayra Banu had died due to burn injuries who was sister of accused Kalu. (3) At the time of making a F.I.R., case under Sections 307, 324, and 34 IPC was registered against the accused appellants. According to injury report Ex.P. 21, following injuries were found on the person of Mst. Maina : — "1. Incised wound 3 cm x 1 cm x 2 deep on Lt. hypochondriac region of abdomen obliquely placed nearing to vertical plane. 2. Incised would 3.0 cm x 1.0 cm x abdominal cavity deep on Lt. side of abdomen anterior about 6.5 cm above & lateral to umbilicus omentum is protruding through the would. The wound is obliquely placed nearing to vertical plane." (4). Mst. Maina was also operated upon for being treated for injuries on 18.6.83. However, Mst. Maina ultimately died on 24.6.83 and the case against the accused was converted from under Sec. 307 IPC to under Section 302 IPC. (5) On 18.6.1983, statement of Mst. Maina was also recorded by the learned Addl. Munsif and Judl. Mst. Maina was also operated upon for being treated for injuries on 18.6.83. However, Mst. Maina ultimately died on 24.6.83 and the case against the accused was converted from under Sec. 307 IPC to under Section 302 IPC. (5) On 18.6.1983, statement of Mst. Maina was also recorded by the learned Addl. Munsif and Judl. Magistrate I Class No.l, Bikaner in contemplation of death after certifying that she was in a fit state to give her statement. The said statement Ex. P.10 reads as under : — (6) After usual investigation, challan was filed and the accused Were committed to sessions for trial. It may be noticed that both the accused were arrested on 1.7.1983 at Ahemedabad, The Sessions Court found the accused quilty of the offences, charged with and convicted and sentenced them as aforesaid. Hence this appeal. (7) We have heard learned counsel for the accused appellants and learned Public Prosecutor for the State of Raj. and perused the record. At the outset, it may be stated that there has come on record two sets of evidence. One set of evidence is consisting of alleged eye witnesses of the incident v(z) PW 1 Gulam Mohd. husband of the deceased Maina, PW 4 Rashida Khatun and Rahisa Banu PW 5, daughters of the deceased maina as also of PW 7 Hasrat, Ali son of deceased Main and on the other hand, second set of evidence is in the form of dying declaration of deceased Maina Ex.P. 10, recorded on 18.6.1983 by the learned Addl. Munsif and Judl. Magistrate I class No.l. Bikaner. (8) While in the F.I.R., name of Hamid alias Abdul Hamid has been mentioned as a companion of Kalu alias Abdul Salam and only role has been assigned to Hamid alias Abdul Hamid that he drew his pistol and asked the deceased, PW 1 Gulam Mohd. PW 4 Rashida Khatun and PW 5 Rehisa Banu to Keep quite. No other role of overtact or any other further participation has been assigned to Hamid @ Abdul Hamid in the F.I.R. It is also stated in the F.I.R. that the name of companion of Kalu was given on the basis that Kalu was calling him by the came of Hamid meaning thereby that this gentleman was not known earlier to these persons and was seen for the first time by them on the date of alleged incident. The specific motive and intention with which the two stab wounds were caused on the person of the deceased were attributed to the fact that the sister of accused Kalu and her daughter were died of burning few days before which according to complainant was a case of accident but the accused Kalu had doubt that it was a case of forced burning by in laws of his sister Sayra viz; Gulam Mohd PW 1 and his family members, more particularly the deceased. A lot of improvements in the statement before the trial Court were made in implicating and assigning the role of Hamid @ Abdul Hamid in the alleged crime by PW 1 Gulam Mohd., PW 4 Rashida Khatun and PW 5 Rahisa Banu, two daughters of deceased Maina. Accused Hamid @ Abdul Hamid was arrested at Ahemedabad on 1.7.83. Insite of the fact that the accused Hamid was not known earlier to the complainant party and the witnesses, no identification of this accused was made until in the course of statement during the trial which casts a serious doubt about identity of a person and the infirmity in the evidence relating the identity of Hamid @ Abdul Hamid as the accused. That apart,in the dying declaration Ex.P.10, deceased has not at all disclosed the presence of Hamid @ Abdul Hamid at the time of the incident. In the dying declaration, the only name of Kalu @ Abdul Salam has been mentioned and the motive and the manner of the incident is entirely at variance from what has been disclosed in the F.I.R. and in the statements of the alleged eye witnesses. IN her dying declaration Ex.P.10, recorded on 18.6.83 itself, the deceased Maina has said that accused Kalu had come in the night before the date of the occurrence who is brother in law of her son. In the day, said Kalu made a complaint to her that she does not sit with her and when she sat for a conversation, she said Kalu threatened her with knife and pistol, took her to gumariya (Underground) and asked her about the whereabouts of her valuables and when she refused, he stabbed twice in her stomach. Thereafter, she goes on to state that Kalu also brought in her husband Gulam Mohd. Thereafter, she goes on to state that Kalu also brought in her husband Gulam Mohd. and two daughters Rashida Katun and Rahisa Banu and threatened to molest her daughters, closed them in the underground and went away. This story, given by the deceased Maina herself is in entirely variance from the story, disclosed in the F.I.R. She attriuted both the weapons viz; the knife and the pistol to be in possession of accused Kalu. She does not given a whisper that Kalu was accompanied by any other person. She does not talk about any existing animosity between the accused assailants and her family relating to burning of Mst. Sayra but gives an impression that plain and simple inattention of Kalu appeared to extort her valuable. PW 5 Smt. Rahisa, apart from giving story as given in the F.I.R., has atleast stated in her cross that the accused asked about the valuables from two sisters after returning from gumariya (underground) However, both the sisters have not said a word about any threat held out to them for molestation. Be that as it may, in view of these two diametric opposite versions of the incident having come on record, while one set of witnesses alleged to be eye witnesses implicating Hamid and another evidence consisting of dying declaration of deceased herself, are not at all implicating accused Hamid in the alleged incident/Coupled with the fact that Hamid was not earlier known to the complainant party and no identification was held in respect of person, arrested on 1.7.83, we are of the opinion that the prosecution has failed to prove the presence and complicity of Hamid in the alleged crime beyond reasonable doubt and he is entitled to be acquitted of the charged, levelled against him. (9) Coming to the case against accused appellant Kalu alias Abdul Salam, we are satisfied that notwithstanding the prosecution evidence being embellished with exaggeration and improvements, it has been able to prove beyond reasonable doubt that Kalu was the author of the injuries, caused on the person of deceased Mst. Maina. There are no diversions and infirmities in the statements of the witnesses and the dying declaration about the fact that Kalu inflicted two stab wounds on the stomach of Mst. Maina. IN defence, it has been suggested that Mst. Maina. There are no diversions and infirmities in the statements of the witnesses and the dying declaration about the fact that Kalu inflicted two stab wounds on the stomach of Mst. Maina. IN defence, it has been suggested that Mst. Reshida and Rahisa, the two daughters of deceased Maina, alleged to be present on the scene of the occurrence, do not appear to be present there or at any rate, they do not appear to be truly the alleged eye witnesses of the occurrence. Even assuming it to be so, looking to the diversionsin the narration of incident and deviation from the statement of the police and statement in the Court, the factum of accused Kalu @ Abdul Salam having inflicted two stab wounds on the person of deceased Mst. Maina is well established by the statement of Gulam Mohd. and dying declaration of Mst. Maina. We find no reason to take a different view on that matter. However, the question which arises is that what offence under the circumstances of the case can be said to be committed by the accused Kalu. There are only tow injuries on the person of deceased. According to injury report Ex.P. 21 prepared on 18.6.83, only two injuries were found on the person of Mst. Maina as described above. (10) The victim who was operated upon on 18.6.83, had thereafter survived for six days and died only on 24.06.1983. The cause of death has been stated to be acute peritonitis as a result of abdominal injuries. As mentioned in the injury report dated 18/6/83 PW 11 Dr. Prem Narayan who had examined the injuries on 18.6.83 and treated the lady, has categorically stated that when she was brought to the hospital, there was no danger to her life due to those injuries. He has also opined that an operation was performed on the day but there was no injury on the vital organ of the body, though there was injury on the peritoneum. The Doctor also opined that there was no injuries on the body of Mst. Main other than two injuries but he was categorical that while the injury could have posed endanger to life but neither PW 11 Dr. Prem Narayan nor PW 13 Dr. Shyam Sunder who conducted post mortem, has opined that injuries were sufficient in the ordinary course of nature to cause death. Main other than two injuries but he was categorical that while the injury could have posed endanger to life but neither PW 11 Dr. Prem Narayan nor PW 13 Dr. Shyam Sunder who conducted post mortem, has opined that injuries were sufficient in the ordinary course of nature to cause death. (11) It has also been the case of the prosecution that two steps were available to the assailants viz; the knife and the pistol for use against the injured. Yet the accused has not used pistol. It has also come on the record that only two sub sounds were inflicted but no injury was apparently caused on any vital part of the body. These facts clearly be that the accused had any intention to kill the deceased Maina. At best, to can be said that he intended to cause bodily injuries on the person of deceased Maina and that knowledge may be attend butted to him that such injury is likely to cause death but in no case, it can be said that accused Kalu intended to cause death of Mst. Maina or that he attended to cause such bodily injury which was sufficient in the ordinary course to cause death of the lady nor it can be said that he had knowledge that the injuries caused on the person of the deceased Mst. Maina were sufficient in the ordinary course of nature to cause death. IN our opinion, the case does not travel beyond Sec. 304 part II IPC. IN somewhat similar circumstances in Shri Ram vs. The State reported in 1973 R.L.W. p. 493 where injury on the peritoneum was caused by using scissors which resulted in death of the victim. The Court observed as under : — "Now the question is whether the offen on, under the circumstances of the case, can be said to be governed by clause third of sec.300 IPC. That section requires that the bodily injury must be intended and the bodily injury intended must be sufficient in the ordinary course of nature to cause death. The first part is a subjective one. In that case the Govt. must be satisfied that the injury sustained by the victim was sufficient in the ordinary course of nature to have caused the death. In the instent case, the first and the second parts, in our opinion, are not fulfilled. The first part is a subjective one. In that case the Govt. must be satisfied that the injury sustained by the victim was sufficient in the ordinary course of nature to have caused the death. In the instent case, the first and the second parts, in our opinion, are not fulfilled. Looking at the matter objectively, was only to would him. The abdomen can rasily but a slight force to wound the peritoneum or the intestines. Penetrating wounds as has been covered in Principles and Practice of Medical Jurisprudence by Taylor, 12th Edn., Vo.l. 1 page 251 are not always fatel, even when such a result right be expected." It is necessary to reiterate deeper when measured on the post mortem table than it was at the moment of infection. The reason is given by Lyon in his Medical Jurisprudence 10th Edn., page 243, in the following words : — "The hand clasping the knife puses the belly wall inwards, more especially a fat wall, to a distance of 2 or more inches." In that view of the matter including the size of the injury and the fact that Ramchander died on the 4th day of the occurrence, we are of the opinion that clause thirdly of sec. 300, IPC, does not cover the case. Inasmuch as death has been caused, the matter must still fall within the ambit of culpable homicide not amounting to murder. Sec. 300 IPC is in 3 parts. The first part deals with doing an act with the intention of causing death. As we have shown above, Shri Ram did not intended to cause the death of the rescuer. Therefore, first part of Sec. 300 IPC does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Hence again the intention must be likely to cause death and that also, in our opinion, was not the intention of Shri Ram. The matter, however, squarely falls within the third part. The act which was done was done with the knowledge that Shri Ram was likely by such act to cause the death of Ram Chander. The case thus falls within the bounds of the third part of sec .300 IPC and will be punishable under the second part of sec. 304 IPC as culpable homicide not amounting to murder. The act which was done was done with the knowledge that Shri Ram was likely by such act to cause the death of Ram Chander. The case thus falls within the bounds of the third part of sec .300 IPC and will be punishable under the second part of sec. 304 IPC as culpable homicide not amounting to murder. We accordingly alter the conviction of Shri Ram from under Sec. 302 to Sec. 304 p. II I.P.C." (12) Aforesaid view supports the conclusion to which we have arrived. (13) It may also be noticed that real genesis of incident does not appear to have been bought on record. Motive attributed to accused Kalu for inflicting injury on the person of Mst. Maina by so called eye witnesses is entirely different from one attributed by the victim herself. Even the version of victim in this regard is not supported by persons named in here dying declaration Ex.P. 10. Thus motive part of statements of witnesses of victim attributing ingredient of intention to kill on the part of accused ins not reliable. It may also be seen that incident took place during the period of ramjaan when most Muslims keep roza or fast during the day. PW 5 Rahisa Banu had admitted that all the members of family had kept Roza on the fateful day and accused had left early morning after taking tea etc. Even before her brothers and father had left for office. In these circumstances, the story of accused persons fixing lunch at the residence of Gulam Mohd. and collecting the members of family to witness their alleged misdeed only and making no attempt to injure the alleged eye witnesses in any manner and leave them behind as live testimony against them sounds rightly improbable. The real generis appears to have been suppressed. (14) As a result of aforesaid discussion, the appeal filed on behalf of Hamid alias Abdul Hamid is accepted and he is acquitted of the offences, charged with. Since he has already been released on bail during the pendency of the appeal, he need not surrender and his bail bonds may be discharged, Appeal of Kalu Alias Abdul Salam is accepted in part. Since he has already been released on bail during the pendency of the appeal, he need not surrender and his bail bonds may be discharged, Appeal of Kalu Alias Abdul Salam is accepted in part. His conviction under Sec. 302 IPC is set aside but he is convicted under Sec. 304 p. II IPC for which in the facts & circumstances of this case, we deem it just and proper to impose rigorous imprisonment for the period already undergone including the period during which he was in the custody during the trial and impose fine of Rs. 10,000/- which should be paid to the heirs of deceased Maina. On failure to pay the fine, he will undergo rigorous imprisonment for a further period of one year. The remaining sentence and punishment under Sec. 342 IPC and Sec. 25 of the Arms Act are kept intact.