JUDGMENT 1. - These two appeals arising out of a common judgment have been preferred by the accused Bherulal one through his counsel and another through the Superintendent, Central Jail, Jaipur against the judgment of the learned Additional Sessions Judge, No. 1, Kota, whereby he convicted the accused-appellant Bherulal for the offence under Section 302, Indian Penal Code and sentenced him to suffer life imprisonment and a fine of Rs. 100/-, in default of payment of fine to further undergo one months R.I. 2. The prosecution case is that on 29.11.87, at 9.00 p.m., the occurrence took place in Mochi Kalla, Ghantaghar, Kota. In this connection, ASI Abdul Khalil of police station, Makbra has recorded the statement of Bhanwarlal in hospital. In his statement, Bhanwarlal stated that while he was sitting on the Thela in front of his house, Kanhaiyalal and Devilal came and gave him beating with fist and legs. When he enquired from them, whey he has been beaten. They said that brother of the deceased Bajranlal has brust the crakers in front of their house. While they were beating him, PW 1 Kalyan and PW 2 Mahaveer came on the spot and saved him. Thereafter, Bherulal came out of the house and stabbed a knife on the left side of the chest of Bhanwarlal. After receiving the knife injury, he rushed towards the police station. He was followed by Bherulal upto some distance. Thereafter, the injured Bhanwarlal was admitted in the hospital. On the basis of Pareha Byan, the first information report was registered for the offence under Section 307 read with Section 34, Indian Penal Code. On the next day, i.e. on 30th November, 1987, the doctor examined the injured Bhanwarlal, who found one stabbled wound on his left side of the chest. On the same day, the dying declaration was recorded at 12.30 a.m. by the learned Magistrate. The doctor has certified that he is in fit condition to give statement. The injured Bhanwarlal died at about 9 p.m. on 30.11.87. His post-mortem was got conducted on 1.12.87. In the opinion of the doctor, the cause of death was due to haemorrhage and shock as a result of injury on the left lung. Initially, the first information report was lodged under Section 307/34, Indian Penal Code but after death of Bhanwarlal, the case was converted and registered under Section 302, Indian Penal Code. In the opinion of the doctor, the cause of death was due to haemorrhage and shock as a result of injury on the left lung. Initially, the first information report was lodged under Section 307/34, Indian Penal Code but after death of Bhanwarlal, the case was converted and registered under Section 302, Indian Penal Code. The site-plan was prepared. The blood-stained clothes were sealed. The accused was absconding and he was arrested on 22.9.88. At the instance of the accused, a knife (Ex.P. 18) was recovered. After completion of investigation, challan was put up in the court of Chief Judicial Magistrate, Kota, who in his turn, committed the case to the court of Sessions Judge, Kota for trial. 3. During trial, the accused pleaded not guilty but he claimed for trial. During trial, the prosecution has examined as many as 11 witnesses and also relied upon Ex.P. 1 to Ex.P. 18. Before the learned Addl. Sessions Judge, No. 1, Kota, it is submitted that out of four eye-witnesses, three eye-witnesses have been declared hostile, and one eye-witness i.e. PW 2 Mahaveer, who is interested witness and, therefore, there is virtually no eye-witnesses in the case. It is a case of single injury. The recovery of knife was not proved, therefore, the prosecution has failed to prove the case beyond reasonable doubt. The learned Addl. Sessions Judge has considered the statement of the prosecution witnesses and entire material on record and came to the conclusion that the death is in consequence of knife blow on the left side of the chest of the deceased Bhanwarlal. The injury has been caused by Bherulal, so forcibly with intention to cause death of Bhanwarlal and, therefore, it is a proper case of conviction under Section 302, Indian Penal Code. Accordingly, he convicted the accused-appellant Bherulal for the offence under Section 302, Indian Penal Code and sentenced him to suffer life imprisonment and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo 1 month's R.I. 4. Being dis-satisfied with the judgment of the learned Additional Sessions Judge, No. 1, Kota, the accused-appellant Bherulal preferred an appeal before this Court. 5. Mr. Manoj Sharma, learned counsel for the accused-appellant submitted that out of four eye-witnesses, three eye-witnesses have been declared hostile. The recovery of knife has not been proved by the prosecution. Being dis-satisfied with the judgment of the learned Additional Sessions Judge, No. 1, Kota, the accused-appellant Bherulal preferred an appeal before this Court. 5. Mr. Manoj Sharma, learned counsel for the accused-appellant submitted that out of four eye-witnesses, three eye-witnesses have been declared hostile. The recovery of knife has not been proved by the prosecution. There is no motive behind the murder, therefore, the accused is not liable for any offence, alternatively, it is a case of single injury. The injured Bhanwarlal died on the next day and in the opinion of the doctor, if proper treatment would have been given, he could be saved, therefore, this case does not travel beyond Section 304, Part II, Indian Penal Code. He placed reliance on the decisions of the Supreme Court in Jawaharlal and another v. State of Punjab ( AIR 1983 SC 284 ) , Jagrupsingh v. State of Haryana ( AIR 1981 SC 1552 ) and Randhirsingh v. State of Punjab ( AIR 1982 SC 55 ). 6. Mr. Abdul Gaffar, learned Public Prosecutor submitted that the knife blow injury is found on the vital part of the body of the deceased and when it is sufficient in the ordinary course of nature to cause death, the intention can be inferred that the accused-appellant has intended to kill Bhanwarlal. Not only that, after receiving this injury on the left side of the chest of Bhanwarlal (deceased), when he was running away from the place of incident to save himself, the accused Bherulal had followed him upto some distance. The statement of PW 2 Mahaveer has fully supported the prosecution case and it leaves no doubt in the story of the prosecution. The dying declaration has been recorded by the Magistrate while the injured Bhanwarlal was in a fit condition to give statement. In his statement, the deceased clearly named Bherulal, who inflicted knife injury on the left side of the chest. Bherulal accused is a friend of Devilal. Being friend of Devilal, he came on the spot in support of Devilal and stabbed knife blow to the deceased. Thus, it cannot be said that there was no motive behind the murder, therefore, the learned Addl. Sessions Judge was fully justified in convicting the accused Bherulal under Section 302, Indian Penal Code. 7. We have heard Mr. Manoj Sharma, learned counsel for the accused-appellant and Mr. Thus, it cannot be said that there was no motive behind the murder, therefore, the learned Addl. Sessions Judge was fully justified in convicting the accused Bherulal under Section 302, Indian Penal Code. 7. We have heard Mr. Manoj Sharma, learned counsel for the accused-appellant and Mr. Gaffar, learned Public Prosecutor for the State and carefully perused the material on record. The facts are not in dispute that the death of Bhanwarlal deceased is due to stabbed wound caused by sharp weapon on the vital part of the body i.e. left side of the chest, therefore, it is not a natural death. The dying declaration of the deceased (Ex.P. 9) recorded by the learned Magistrate and the statement of PW 2 Mahaveer are enough to hold that the stab wound to the deceased has been caused by the accused Bherulal. Thus, we have no hesitation in holding that Bhanwarlal died due to injury caused to him by Bherulal. 8. Now only limited question remains for our consideration is whether the offence of the accused-appellant comes within the purview of Section 302, Indian Penal Code or 304, Indian Penal Code. 9. Before considering the facts of the case, we would like to refer some observations of their Lordships in the case referred to above, relied upon by the learned counsel for the accused-appellant.In Jawaharlals case (supra), the facts before their Lordships were that the immature boy aged about 19 years in the back-ground of the trivial quarrel with A, had given a solitary blow of knife to the deceased, which fell on his chest, the accused had no malice against the deceased, he had no quarrel with the deceased and the accused did not make any attempt at giving second blow' in the dim light available at the time of occurrence the accused could not be said to have intention to cause that particular injury. Even if, the injury proved to be fatal, the case would not be covered by Section 300 Para 3. However, since the accused could be attributed the knowledge that he was likely to cause an injury, which was likely to cause death, the accused could be convicted under Section 304 Part II and not under Section 302, Indian Penal Code. 10. However, since the accused could be attributed the knowledge that he was likely to cause an injury, which was likely to cause death, the accused could be convicted under Section 304 Part II and not under Section 302, Indian Penal Code. 10. In Jagrupsinghs case (supra), it was observed that the accused struck the deceased with the blunt side of a gandhasa in the heat of the moment, without premeditation and in a sudden fight, the case would be covered Exception 4 of Section 300, Indian Penal Code. 11. In Randhirsinghs case (supra), it was observed that there was only one injury. The weapon was not carried by the accused in advance. There was no premeditation. The accused was a young college going boy. There was some alteration between the deceased and his father and the death occurred nearly after 6 days. Their Lordships was of the view that one can only say that the accused must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. It cannot be said that the accused intended to cause that particular injury. Under these circumstances, the accused-appellant is shown to have committed an offence under Section 304 Part II, Indian Penal Code. 12. In the light of the decisions of their Lordships referred to above, we have to consider the facts in the case before us. 13. According to the prosecution case, while Bhanwarlal was sitting on the Thela in front of his house, Devilal and Kanhaiyalal came to him and gave him beating. When he enquired that why he has been beaten, then, they said that his youger brother Bajranglal (PW 4) has brust the crakers in front of their house inspite of their objections. While the quarrel was going on, the accused Bherulal friend of Devilal came on the scene of occurrence and gave a knife blow on the left side of the chest of the deceased. The accused-appellant Bherulal has no enmity with the deceased nor he repeated any knife blow. The dying declaration of Bhanwarlal was recorded at about 12.30 a.m. on 30.11.87. The dying declaration was recorded in the form of questions and answers. The specific questions was put to Bhanwarlal as under:- Q. Whether it is a day or night ? Ans. It is a night. Q. Where you are now ? Ans. I am in the hospital. The dying declaration of Bhanwarlal was recorded at about 12.30 a.m. on 30.11.87. The dying declaration was recorded in the form of questions and answers. The specific questions was put to Bhanwarlal as under:- Q. Whether it is a day or night ? Ans. It is a night. Q. Where you are now ? Ans. I am in the hospital. Q. How did you sustain this injury ? Ans. The injury is of knife blow. Q. Who gave the knife blow ? Ans. Bherulal s/o not know, Caste Regar, who gave knife blow. Q. Where Bherulal resides ? Ans. He resides in the Regaron Ka Mohalla, Ghantaghar. Q. When this knife blow was inflicted and at what place ? Ans. Today night at about 9 p.m. in front of my house. Q. Whether Bherulal was alone ? Ans. He was alone. Q. At that time, whether any body came for your rescue ? Ans. My brother Bajranglal and Mahaveer came for help. Q. Whether Bherulal has any enmity with you ? Ans. No enmity. Q. Why this Bherulal inflicted knife injury ? Ans. My younger brother Bajranglal has brust the crakers, on that, Bherulal came from his house and gave a knife blow. Q. Anything, you want to say ? Ans. No, Nothing. 14. Even if we accept all contents of the dying declaration as it is, it has been admitted by the deceased Bhanwarlal that he has no enmity with the accused, and the other specific question that why Bherulal gave him knife blow. He answered that as his younger brother Bajranglal has brust the crakers therefore, Bherulal gave this knife blow to him. Along with this dying declaration, if we read the statement of the deceased (Ex.P. 15) recorded by Abdul Khalil, ASI that further clarifies the fact that while he was being beaten by Devilal and Kanhaiyalal, Kalyan have saved him. When it was asked any he has been beaten. They said that his younger brother Bajranglal has brust the crakers near the house of Devilal and Kanhaiyalal. Bheru Lal, who lives nearby the place of incident, saw the sudden quarrel between Devilal and the deceased, came and gave knife blow. He further stated that Bherulal is friend of Devilal and, therefore, for that reason, he gave a knife blow to the deceased. 15. Bheru Lal, who lives nearby the place of incident, saw the sudden quarrel between Devilal and the deceased, came and gave knife blow. He further stated that Bherulal is friend of Devilal and, therefore, for that reason, he gave a knife blow to the deceased. 15. If we read the dying declaration alongwith the Statement of PW 2 Mahaveer, which makes the position more clear that PW 2 Mahaveer, who is the main prosecution-eye-witness also admitted that while Bhanwarlal was being beaten, at that time, the accused Bherulal came from his house and gave a knife blow to Bhanwarlal on the left side of his chest. There was no repetition of knife blow. There was quarrel between Devilal and the deceased. The accused being a friend of Devilal and neighbours came in support of Devilal and gave a knife blow at the chest of the deceased. No repetition of knife blow, it is only a case of single injury. The incident took place at 9 p.m. means, there was no sufficient light, therefore, it is also not proper to infer that Bherulal has any intention to strike the knife blow at the chest only. It may be per chance that knife blow struck at the vital part of body. The deceased and the accused has no enmity. The quarrel between the deceased and Devilal picked up only on the petty matter that younger brother of deceased has brust the crakers in front of the house of Devilal. The deceased expired on the next day about 24 hours from the time of the incident. Even in the opinion of the doctor, if appropriate treatment would have been given in lime, the chances were there to save his life. The statement of the deceased given to the police vide Ex.P. 3 reveals that while the deceased was sitting on the thela in front of his house, he has been beaten by Devilal and Kanhaiyalal. When it is enquired by the deceased why he has been beaten. It is said that as he has brust the crakers in front of their house and at that time, the accused Bherulal came and gave knife blow to the deceased Bhanwarlal. It appears from the statement that he has not come out with full truth. When it is enquired by the deceased why he has been beaten. It is said that as he has brust the crakers in front of their house and at that time, the accused Bherulal came and gave knife blow to the deceased Bhanwarlal. It appears from the statement that he has not come out with full truth. The every possibility is that while Devilal and Kanhaiya were beating him he must have resisted and resulted into quarrel and that could have been seen by the accused Bherulal, who is also neighbour and friend of Devilal. He came in support of Devilal and struck a knife blow without premeditation, on seeing the sudden fight between his friend and the deceased, there was no enmity between the deceased and the accused. That has been admitted even by the deceased in the dying declaration. Thus, we can not ignore these basic facts which go to the root of the issue whether the case comes within the purview of Section 302 or 304, Indian Penal Code. In the light of the observations of their Lordships and the facts of this case, in our view, the case does not travel beyond Section 304 Part II, Indian Penal Code. 16. In the result, both the appeals are partly allowed. The conviction under Section 302, Indian Penal Code is set aside instead we convict him under Section 304 Part II, Indian Penal Code and reduce the sentence to 5 years R.I. He shall also pay a fine of Rs. 500/- in default of payment of fine to further undergo 2 months R.I.Appeals partly allowed. *******