JUDGMENT 1. The accused appellant Hariram has sent this appeal from the jail against the judgment of the learned Additional Sessions Judge, Raisinghnagar (Sri Ganganagar) dated August 11, 1988 by which he has been convicted under section 302 Indian Penal Code for murdering Mst. Mamkauri and also under section 324, Indian Penal Code for causing injuries to the complainant Kaluram, 10 and has sentenced him to undergo life imprisonment and rigorous imprisonment for one year respectively. 2. The prosecution case may be summarised thus. On November 20, 1982 at 5.39 P.M., the complainant Kaluram PW 10 lodged FIR. Ex. P 1 at the Police Station, Gharsana (Sri Ganganagar) to the effect that a dispute is going on in between him and his brother Banwari regarding partition of agricultural holding and the latter (Banwari) wants to usurp the entire land of his father Ramrakh. At about 3.45 P.M the same day, he went to the field bearing Murabba No. 53/17 Kila No. 24 to irrigate it along with Hariram PW 2 son of Magharam Meghwal, Devisingh PW 9 and one Hariram. He found there his brother Banwari had put about three days back and has asked his maternal uncle Hari Ram Vishnoi (accused), one Loharia Sikh and one more person with the direction to do away any person who may come there and had given them illicit arms. The accused Hariram Vishnoi came out from said but with a "sailla" in his hand to inflict injuries by it. The first blow hit on his chest. While he was giving second blow, his mother Mst. Mamkauri who had just came there with tea, intervened and lay upon him to rescue him. The accused Hariram inflicted two sailla blows upon her and as a result thereof, she fell down and died. Loharia Sardar fired a shot. On hue and cry, Bhagirath PW I and Hanuman PW 11 came there. The assailants ran away seeing them coming there. Banwari and Sugriv arranged this attack in order to usurp the land of his (Kalu's) share. Thereon, a case under sections 302, 307 and 120-B, Indian Penal Code and section 27, Arms Act was registered and usual investigation was commenced. After investigation a challan was filed against the accused Hariram (appellant), Sugriv, Bantasingh and Banwarilal in the court of the Munsif cum Judicial Magistrate, Anupgarh who committed them to the Court of Additional Sessions Judge, Raisinghnagar. Thereon, a case under sections 302, 307 and 120-B, Indian Penal Code and section 27, Arms Act was registered and usual investigation was commenced. After investigation a challan was filed against the accused Hariram (appellant), Sugriv, Bantasingh and Banwarilal in the court of the Munsif cum Judicial Magistrate, Anupgarh who committed them to the Court of Additional Sessions Judge, Raisinghnagar. After necessary trial, the accused - appellant was convicted and sentenced as said above and the remaining accused Sugriv, Bantasingh and Banwarilal were acquitted of all the said offence. 3. The learned Amicus Curiae has contended that there is a great variance in between the evidence of the eye witnesses, namely, complainant Kalu PW 10, Devisingh PW 9 and Hanuman PW 11 on the one hand and Dr. Anagddev Jhorer PW 8 who conducted the post-mortem examination on the dead body of the deceased Mamkauri and examined the injuries of the complainant Kalu PW 10 on the other hand. Dr. Angaddev PW 3 has categorically stated that 'sailla' is a pointed weapon and it causes penetrating wound and injuries of Mst. Mamkauri and complainant Kaluram were not penetrating wounds. He further contended that the eye witnesses Hariram PW 2 and Bhagirath PW 7 have not at all supported the prosecution case and Hanuman PW 11 has also turned hostile. He also contended that the investigating and Beer has not been examined in this case, the information said to have been given by the accused - appellant Hariram and recovery of 'sailla' in pursuance thereof and recovery memo Ex. P 16 are not proved. He further contended that it is clear from the report Ex. P 18 of Forensic Science Laboratory, Rajasthan, Jaipur that sufficient blood was not found on this 'sailla' and it is not proved that the 'sailla' recovered had human blood. It was contended that the complainant Kalu PW 10 has specifically stated in his FIR Ex. D 1 that the accused - appellant Hariram inflicted two blows with his 'sailla' upon Mamkauri and in his statement on oath he said that only one 'sailla' blow was given and he did not mention in the FIR. Ex. D 1 that two blows were given with the 'sailla'. D 1 that the accused - appellant Hariram inflicted two blows with his 'sailla' upon Mamkauri and in his statement on oath he said that only one 'sailla' blow was given and he did not mention in the FIR. Ex. D 1 that two blows were given with the 'sailla'. He contended that the prosecution story 'May be true' but there is a long distance between 'May be true' and 'Must be true' and this distance has, to be travelled by unimpeachable evidence. He relied upon Sarvansingh Ratansingh v. State of Punjab, AIR 1957 SC 637 and Vinod v. State of Rajasthan, 1988 Criminal Procedure Code (Raj.) 554 . He lastly contended that even placing reliance into on the prosecution evidence, offence under section 302 Indian Penal Code is not proved and, at the most, offence punishable ruder section 304, Part II, Indian Penal Code is proved against the accused appellant Hariram. He placed reliance upon Hardevsingh v. State of Punjab, AIR 1975 SC 179 and Dharamveer v. State of .Rajasthan, 1988 (1) RLW 61 . 4. The learned Public Prosecutor duly supported the judgment under challenge. He contended that the presence of the complainant Kalu PW 10 cannot at all be doubted as he himself received injuries during the occurrence. He further contended that due to his own injuries he could rot notice fully and correctly the blows of 'sailla' inflicted by the accused - appellant Hariram on the person of Mamkauri and as such discrepancy appeared in between the FIR Ex. D 1 and his statement on oath. He also contended that Dr Angaddev PW 3 has not said in his statement that injuries noticed by him on the dead body of Mamkauri and on the complainant Kalu could not have been caused by the 'sailla'. He conterded that 'sailla' has a pointed end arid its sides have sharp edges and it can cause penetrating as well as incised wounds depending upon the manner of blows given and the position of the body upon which they are given. He also contended that the accused - appellant had intention to do away Mst Mamkauri as first 'saillai' blow w as given on her chest with great force resulting in her Instantaneous death. 5. He also contended that the accused - appellant had intention to do away Mst Mamkauri as first 'saillai' blow w as given on her chest with great force resulting in her Instantaneous death. 5. It is well proved from the evidence on record that the complainant Kalu PW 10 received two incised wounds on his chest and one abrasion on his left arm during the occurrence and the duration of these injuries was the same as that of the injuries received by the deceased Mamkauri. He lodged the FIR Ex. D 1 within two hours of the occurrence at the. Police Station, Gharsana which was at a distance of 35 kms. from the place of occurrence. It was received in the office of the Munsif cum Judicial Magistrate, Anupgarh the same day at 7.30 P M. It corroborates the statement of Kalu PW 10 except on the number of blows given by the accused - appellant to the deceased Mamkauri. The other eye witnesses, namely, Devisingh PW 9 and Hanuman PW 11, duly corroborates his testimony. There is absolutely no good ground to doubt the presence of complainant Kalu PW 10. 6. The complainant Kalu PW 10 has stated on oath that the accused appellant Bantam first gave a blow with a 'sailla' on his chest, while be was giving second blow his mother Mamkauri intervened and lay upon him to save him, the second blow caused injuries on her chest, as a result thereof, she fell down and died on the spot, the third blow injured him and, thereafter, he fell down. Similar are the statements of Devisingh PW 9 and Hanuman PW 11. Dr. Angaddev Jhorer PW 3 has deposed that he conducted the post-mortem examination on the dead body of deceased Mamkauri and noted four incised wounds and ore abrasion on her body. He also stated that the same day, he examined complainant Kalu PW 10 and found two incised wounds and one abrasion on his body. He has duly proved post-mortem Ex. P 5 and injury report Ex. P 3. On November 27, 1980, Dr. Angaddev PW 3 examined the accused appellant Harirarn and found one lacerated wound on the dorsal side of his right wrist joint of the duration os 5-7 days and prepared the injury report Ex. P 4. He has duly proved post-mortem Ex. P 5 and injury report Ex. P 3. On November 27, 1980, Dr. Angaddev PW 3 examined the accused appellant Harirarn and found one lacerated wound on the dorsal side of his right wrist joint of the duration os 5-7 days and prepared the injury report Ex. P 4. In his examination under section 313, Criminal Procedure Code, a question was put to the accused - appellant Hariram on this point and he pleaded ignorance. He did not deny that he received the said injury. This also corroborates the statement of complainant Kalu PW 10. 7. It is correct that in the post-mortem report Ex. P 5 Dr. Angaddev PW 3 has stated that he found four incised wounds and one abrasion on the dead body of Mst. Mamkauri and he has disclosed in his cross examination that 'sailla' is a pointed weapon, it causes penetrating wounds and injuries of Kalu PW 10 and deceased Mamkauri were not penetrating wounds It is well proved from the statements of Devisingh PW 9, Kalu PW 10 and Hanuman PW 11 that the accused appellant inflicted a 'sailla' blow on the chest of Mst. Mamkauri. This injury has been numbered 1 and described in the post-mortem report Ex. P 5 as follows : "There is an incised wound of 21/4" x 11/4" x 31/2" vertical on the right side of chest near the body of sternum with of 2nd, 3rd and 4th ribs on the right with injury to the upper lobe of left lung and pleure and the ascending part of arch of aorta." It is clear that this injury has much greater depth than its length and breadth. It has been observed in Modes Jurisprudence at page 255 (21st Edition) that the length of an incised wound is greater than its depths and at page 256 it is mentioned that the depth of a punctured wound is much more than its length or width. The edges of a wound caused by a penetrating weapon are also sharp. As such this injury could also be described as a penetrating wound. Dr. Angaddev PW 3 has disclosed his age on the day of his statement as 31 years only. By this time he did not acquire sufficient experience. The edges of a wound caused by a penetrating weapon are also sharp. As such this injury could also be described as a penetrating wound. Dr. Angaddev PW 3 has disclosed his age on the day of his statement as 31 years only. By this time he did not acquire sufficient experience. The prosecution evidence is silent as to who caused the other incised wounds noted on the head and fore-arm of Mst. Mamkauri. Dr. Angaddev PW 3 has stated on oath that the cause of death was excessive hemorrhage resulting from injury to aorta caused by a sharp weapon. This is also clearly mentioned in the post-mortem report Ex. P 5. This leaves no doubt that the said injury No. 1 was the cause of her death. Dr. Angaddev, PW 3 has not said in his cross-examination that the said injury No. 1 could not have been caused by a 'sailla'. At the risk of repetition, it may be mentioned here that he has simply said that the 'sailla' is a penetrating weapon, it causes penetrating wounds and injuries of Kalu and Mst Mamkauri were not penetrating wounds. No question was put to him that an incised wound cannot be caused by a 'sailla'. Thus, there is no inconsistency is between the statements of eye witnesses and the medical evidence. It has been observed in Chimanbhai Okbhai v. State of Gujarat, AIR 1983 SC 484 at page 487 para 12, as follows : "Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence." It is thus well proved from the evidence on record that the above quoted fatal injury of Mst. Mamkauri was inflicted by the accused - appellant Hari Ram. Mamkauri was inflicted by the accused - appellant Hari Ram. This well proved fact cannot be rendered doubtful by the non examination of the investigating officer, non-production of the and absence of blood on it. 8. Now the question is about the offence proved against the accused appellant Hari Ram. It is well proved Iron the evidence on record that the accused appellant first inflicted a 'sailla' blow on the complainant Kalu PW 10, Mst. Marnkauri (mother of Kaluram) intervened and lay upon him while the accused Hariram was inflicting the second blow on Kalu Ram PW 10. it fell upon her chest and, as a result thereof, she fell down and died. The injury report Ex P/3 of the complainant Kalu Ram PW 10 shows that he received three simple injuries, two were caused with some sharp edged weapon and the third was caused with some blunt object. It cannot, therefore, be said that the accused appellant Hariram had the intention of causing such bodily injury as was likely to cause death or had the knowledge that his act was likely to cause death or the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. The second blow of sailla fell on the chest of Mst. Mamkuari when she lay on her son Kaluram PW 10. No prosecution witness has said that the accused appellant aimed the blow on the chest of Mst. Mamkauri. She was not the target or his attack. It cannot, therefore. be said that the accused appellant Hari Ram had the intention to cause the said fatal injury to Mst. Mamkauri. When the second blow struck Mamkauri on her chest the accused Hari Ram must have known that it was likely to result in her death. Hence offence punishable under Section 302, Indian Penal Code is not made out against the accused appellant but an offence punishable under Section 304 Part I, Indian Penal Code is made out. Reference of Hardevsingh v. State of Punjab, AIR 1975 SC 179 and Dharamveer v. State of Rajasthan, 1988 (1) RLW 61 , may be made here. 9. It is also well proved that the accused appellant was the author of the injuries No. 1 and 2 received by the complainant Kalu Rain PW 10. He has rightly been convicted under Section 324, Indian Penal Code for causing these injuries. 9. It is also well proved that the accused appellant was the author of the injuries No. 1 and 2 received by the complainant Kalu Rain PW 10. He has rightly been convicted under Section 324, Indian Penal Code for causing these injuries. 10. The last question is about the quantum of the sentence. The accused - appellant Hari Ram is in the custody since November 26, 1981. Sentence of imprisonment for 10 years is generally awarded under Section 304 Part I, Indian Penal Code. As such the accused appellant Hari Ram deserves to be released forthwith as he has already undergone imprisonment for more than ten years and eight months. 11. In the result, the appeal is partly allowed, the accused appellant Hari Ram is acquitted of the offence punishable under Section 302, Indian Penal Code but he is convicted under Section 304 Part I, Indian Penal Code. His conviction under Section 324, Indian Penal Code is maintained. Sentence of life imprisonment is converted into the sentence of imprisonment already undergone by him. 12. The accused appellant Hari Ram will be released forthwith, if not wanted in any other case.Appeal partly allowed. *******