JUDGMENT 1. This appeal is directed against the judgment of learned Addl. Sessions Judge, Baran, dated 19th December, 1989, whereby the appellant has been convicted for offence under Section PC and sentenced hint to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine, he was directed to undergo one year's rigorous imprisonment. 2. Brief facts leading to this appear are that on the parcha bayan of one Chunnilal, son of Devi Singh, recorded by A.S.I. Tcjraj Singh, in Hospital in Hospital at Baran, a First Information Report Ex. P-18, was taken-down at 12.30 a.m. on 3rd May, 1985, wherein it was alleged by him that on the previous night i.e. 2nd May. 1985 at 10.15 a.m. when he along with Murli Singh, Ramesh Chand and Hentraj were returning after taking betel at 'Char Murti Crossing' when they carne neat the Railway Station, they met Mansingh Rajput and Ghasi Jatav, near the tea shop of Bhanwar Singh Gurjar. Ghasi Jatav,asked them where they were going on which they said that they were going for taking betel. Ghasi Jatav, asked them to wait for sometime, meanwhile the street lights went off however, since it was moon-light night the faces could be identified. At that time accused Kalu appellant along with Narayan Jatav, Sanjay Saxena and Radheyshyam Jatav, arrived. Kalu and Narayan, asked them to stop and giving them filthy abuses. Ghasi thereupon caught hold of Murli Singh and accused Kalu, inflicted knife blow on the head of Murli Singh. When Ramesh Chand, came to intervene accused Kalu, inflicted knife blow on his left wrist. Ghasi, thereupon ran away but Naryan Jatav, stated that he will kill them by fire arm. Kalu, thereafter, inflicted knife injury on Chunnilal and again on Murli Singh. The accused thereafter, If the place feeling that Murli Singh, had expired and thereafter, they were brought to hospital. After taking down the F.I.R. the case was recorded under Section 307/34 IPC. All the 3 injured were medically examined and their medical injury reports Exs. P.11, P-14 and P-15, were prepared. The injuries found on the person of deceased Murli Singh with which we are concerned with this appeal were found to be as under : 1. Incised wound (Oblique) 1'h" X 1/2" X 3" depth the level of lower tho res is & upper lumber Li -L2 region over spine; 2. P.11, P-14 and P-15, were prepared. The injuries found on the person of deceased Murli Singh with which we are concerned with this appeal were found to be as under : 1. Incised wound (Oblique) 1'h" X 1/2" X 3" depth the level of lower tho res is & upper lumber Li -L2 region over spine; 2. Incised wound (Transverse) 2" X 1/2" X 11/2" over left buttock back 2" below A.S.I. spine; 3. Incised wound 11/2" X 11/2" X 1/4" over face at outer angle of right eye brow to fraguss of right ear. 4. Incised wound 1/2" X ⅛" over right eye brow and right side. 5. Incised wound 1/2" X ⅛" X ⅛" over nosal bridge right side. 3. Murali Singh, was admitted in the Hospital as an indoor patient and his indoor ticket had also been prepared but the reasons best known to the prosecution, it has not been produced on record. Murali Singh, died on 15th May, 1985 and his postmortem was conducted by Dr. Y.K. Sharma, who found following external and internal injuries on his person : 1. Stitched up wound vertical 9" long on amid line abdomen on either side of umbilicus it was post operative wound; 2. Stitched wound 21/2 X ⅛ X 3" on internal aspect of left iliac fossa; 3. Stitched up would 1" transverse on upper and lateral aspect of left glutaeal region; 4. Stitched wound 3/4" X ⅛" cavity deep trans verse in the level of 10th trothrix spine; 5. Incised wound 1" X ⅛" X 1/4" on lower aspect of left glutttial region; 6. Incised wound 1/2 X ⅛" X 1/4. transverse on lower and of posterior aspect of left upper arm; 7. Incised would 1/4" long on upper and lateral aspect of right iliac fossa; 8. Stitched up wound 1/4" X ⅛" X ⅛" transverse of medial aspect of right iliac fossa; and 9. Stitched up wound 2" long on middle of right ear pinna. Rigor mortis was found on all over the body of deceased. Internal injury 1. 2nd part of duodenum found ruptured with abdomen. 4. Doctor, Sharma, opined that the cause of death was due to toxamia and shock as a result of injury to duodenum. He was also annexed separate paper for external injuries which is Ex. Rigor mortis was found on all over the body of deceased. Internal injury 1. 2nd part of duodenum found ruptured with abdomen. 4. Doctor, Sharma, opined that the cause of death was due to toxamia and shock as a result of injury to duodenum. He was also annexed separate paper for external injuries which is Ex. P17-A. The Doctor, in his post-mortem has found both the lungs pale and he found second part of the duedenum ruptured with abdomen, dipped in dirty focal matter mixed fluid. 5. Police after completing the investigation submitted a charge-sheet against 7 persons out of which Kallu, Narayan and Radheyshyam, at the time of filing charge-sheet were absconding and a supplementary charge-sheet was filed after their arrest. Prosecution examined 14 witness in support of its case. Accused however, did not lead any evidence in their defence. The Trial Court, found that the 3 eyewitnesses namely Hanvaj, P.W.1, Chunnilal, P.W.3 and Ramesh P.W.8, did not support the prosecution story as given out in the First Information Report and therefore, he acquitted the other accused appellant Kaluram @ Kalulal, who has preferred this appeal. 6. It is contended by the learned Counsel for the appellant that once the evidence of all the 3 eyewitnesses have been dis-believed qua other accused persons, it should also be dis-believed as against appellant Kaluram. Besides this, it is submitted that the dying declaration of deceased Murli Singh, where he named accused Kalu,should not be relied upon and that he should have been extended the benefit of doubt. It is also contended that assuming for the sack of argument that it is proved that accused appellant Kalu, inflicted injuries on the person of the deceased yet there is no evidence to substantiate that the cause of death of Murli Singh, was the injury inflicted by accused appellant. It is submitted that the Doctor, who examined the injured had admitted that two to three type of weapons were used and it could not be re-connected with the particular injury on duodenum which was as a result of stab wound inflicted by the accused appellant. It is submitted that the Doctor, who examined the injured had admitted that two to three type of weapons were used and it could not be re-connected with the particular injury on duodenum which was as a result of stab wound inflicted by the accused appellant. It is further argued that the cause of death was given out by the Doctor was toxaemia and shock as a result of injury to duodenum and he has categorically stated that the blood of the deceased had been poisoned as the wounds had become septic and thus, the liability cannot be fastened on the accused appellant for the negligence of the Doctor, who failed to treat the injured properly in the hospital. It is also submitted that admittedly Murli Singh, was an indoor-patient and his indoor ticket had also been prepared and as per the post-mortem report, manipulation is surgical report has also been done for the reasons best known to the prosecution, the entire material has been kept back and the Court has no material to come to a definite conclusion as to what was the actual cause of death and when the wounds became septic. In this eventuality, it is submitted that the offence would not travel beyond Section 324 IPC. Mr. Bhargava, learned Public Prosecutor for the State, has supported the judgment of the Trial Court and submits that the ultimate cause of death is the injury inflicted on the abdominal region and shock being one of the cause of death and the accused appellant could he convicted for offence under Section 302 IPC. 7. We have given our thoughtful consideration to the rival contentions made by the learned Counsel for the parties and perused the entire record of the case. In this case, all thc3 eye-witnesses namely P.W. 1, Hemraj, P.W. 3, Chunnilal and P.W. 8 Ramesh Chand, have been declared hostile though they implicated accused appellant Kalu as one of the accused in their statements. Their testimony has not been relied upon qua other accused persons who have been acquitted, yet in our opinion, their statements could be considered as against the appellant since they are amply corroborated did not only by the dying declaration of Murli Singh which Ex. P-24, recorded by Shri Yashpal Singh, P.W. 10, who was posted as Munsiff and Judicial Magistrate, Baran but also by the first information report was Ex. P-18. P-24, recorded by Shri Yashpal Singh, P.W. 10, who was posted as Munsiff and Judicial Magistrate, Baran but also by the first information report was Ex. P-18. There is ample evidence on record that Kalu was armed with knife and he inflicted injury on the person of the deceased by the same. Thus, so far as infliction of injury on the person of deceased Murli is concerned, we are in agreement with the findings arrived at by the Trial Court that it was the accused appellant who had inflicted the same. However, the question as to what offence is made-out in the circumstances of the case has to be seen. The learned Trial Court, relying on the statement of Dr. B.D. Lahoti , P.W. 4, and the statement of Dr. Y.K. Sharma, P.W. 6, held that the injury on the duodenum was the cause of death and the same was sufficient in the ordinary course of nature to have cause death. We are unable to agree with this finding of the learned Trial Court as according to B.U. Lahoti, P.W. 4, the injuries sustained by the deceased were simple in nature when he examined him on 2nd May, 1985. He however, reserved the opinion for injury Nos. I and 3 as the same was to be confirmed only after X-ray and the treatment which was to be meted out to deceased Murli Singh. It is borne out front Ex-12,which is also proved by Dr. B.D. Lahoti, P.W.4, that deceased Murli Singh was an in-door patient and his indoor ticket was registered at No. 679 dated 2.5.1985 at 10.45 p.m. and his in-door ticket was prepared at 11.35 p.m. He was also administered two units of blood on that night but there-after, the I.O. for the reasons best known neither took the report from Doctors nor produced before the Court. Deceased Murli Singh, died on 15th May, 1985 and when Dr. Y.K. Sharma, performed the post-mortem and found 5 stitched wounds besides 3 incised wounds. According to him the deceased had been taken to Bbeeni Singh Hospital, Kota, where he was operated on the same day and 15 bottles of the blood had to be transfused. According to him second part of dueodenum was found ruptured with abdomen and cause of death was due to shock and toxaemia as a result of injury to dueodenum. According to him the deceased had been taken to Bbeeni Singh Hospital, Kota, where he was operated on the same day and 15 bottles of the blood had to be transfused. According to him second part of dueodenum was found ruptured with abdomen and cause of death was due to shock and toxaemia as a result of injury to dueodenum. Dr.Y.K. Sharma, admitted in his cross-examination that toxaemia was because the blood had been poisoned as the injury had become septic. He was unable to say as to at what point of time the injury bad become septic. According to him the puss formation was in the injury No. 2, which was on the left iliac fossa. He however, insisted that cause of death was due to injury on dueodenum but further admitted that patient would have survived had there been no toxaemia. In the face of statement of Dr. Y.K. Sharma, P.W. 6, in our opinion, it will be too risky to come to the conclusion that injuries inflicted by the accused appellant on the person of Murli Singh deceased were sufficient in the ordinary course of nature to have cause death and he could not have been convicted for offence under Section IPC. However, the nature of injuries sustained by the deceased which has been inflicted by the accused appellant were on vital part of the body and could very conveniently be termed as the injuries endangering to the human life and were thus grievous injuries within the meaning of Section 320 IPC so as to attract Section 326 IPC as the accused has voluntarily caused injury by means of instrument which was sharp cutting instrument. 8. We may observe that the Doctor, has opined merely because he has mentioned in his clinical examination report Ex-P11, that some of the injuries were simple and for the others, he kept the opinion reserved the Court is unable to arrive at another conclusion. 8. We may observe that the Doctor, has opined merely because he has mentioned in his clinical examination report Ex-P11, that some of the injuries were simple and for the others, he kept the opinion reserved the Court is unable to arrive at another conclusion. It is always lawful for the Court to look into the nature of the injury by itself from the datas supplied as to whether the particular injury is simple or grievous we find that the injury No. 1, which was 1'h" long,' " in width and 3" deep on the back at the level of lower theoretic and upper lumber region was sufficient to endanger to the human life so as to bring the offence within Clause (8) of Section IPC. We, therefore, alter the conviction of the accused appellant for offence under Section 302 IPC to Section 325 IPC. 9. The result of the aforesaid discussion is that this appeal is partly allowed. The conviction and sentence of the accused appellant Kaluram L' Kalulal, for offence under Section IPC is set-aside and instead he is convicted for offence under Section IPC and sentenced to 7 years r.i. and fine of Rs. 5,00/- in default of payment of fine he will undergo twin months imprisonment. The accused appellant Kaluram (qKalulal, shall be entitled to set off under section 428 Cr.P.C. and also for remission which he has carved during this period.Appeal partly allowed. *******