JUDGMENT 1. 1. 16 persons were tried by the Additional Sessions Judge, Jhalawar for the offence under Sections 302, 147, 148, 302 read with 149 and 307 read with 149 of the Indian Penal Code Out of these persons, only one, namely the accused appellant Amar Singh has been convicted for the offence under Section 302 IPC and sentenced to life imprisonment and a fine of Rs. 1,000/- and in default of payment of fine he has to undergo further imprisonment for three months. All other accused have been acquitted of all the offences. It may be mentioned here that one accused namely Mangi Lal was murdered during the trial and the allegation is that he was murdered by Rajendra, who is an injured in the present case. 2. The appeal of Amar Singh is being disposed by this order. 3. The incident, out of which the case aries occurred on 16th June, 1990 at 10.00 P.M. in village Prathvi Pura in for one of J.K. factory and in the incident Banney Singh received injuries on account of which he later died and Rajendra also received injuries. The first information Report was lodged on the same day at 10.30 p.m. at Police Station Mandawar District Jhalawar by Rajendra injured. Seven persons were named as accused in this first information report. However, another report was lodged on 17th June, 1990 in which nine more persons were added as accused. In the first information report Ex.P. 19 Bihari Lal and Ratipal were shown as eye-witnesses. Dying declaration Ex.P. 33 of Banney Singh was also recorded and in his dying declaration he attributed specific blows to accused Amar Singh and Mangi Lal. For his own injuries he said that Amar Singh indicted 2-3 knife blows on the front side of the chest and one knife blow on the back and Mangi lal also inflicted Dharia blows on his body. For the injuries of Rajendra he named Amar Singh appellant. According to the injury reports Ex.P. 16 and P. 17 Rajendra received only one simple injury on the right shoulder by sharp weapon. While, Banney Singh received two injuries which are as follows 1. Incised wound - clean cut -11/2" x 3/4" x ? right side of chest. Air comes out when shoulder is moved, depth is up to pleural cavity. 2. Incised wound clean cut 1/2" x 1/4" x 1/4" (Muscledee Lt. While, Banney Singh received two injuries which are as follows 1. Incised wound - clean cut -11/2" x 3/4" x ? right side of chest. Air comes out when shoulder is moved, depth is up to pleural cavity. 2. Incised wound clean cut 1/2" x 1/4" x 1/4" (Muscledee Lt. Scapular region of back 1/2" apart from mind Sharp-simple. 4. It may be slated that Rajendra did not appear in the witness box as prosecution witness to depose about the incident. He was an injured witness and his testimony would have been of importance for that reasons best known to him he did not choose to appear in the case as a witness. 5. Three witnesses were said to be the eye-witnesses but the learned Additional Sessions Judge held that Ramesh P.W. 1 was not an eye-witness of the occurrence but an attempt was made to make him an eye-witness. The other witnesses who saw Banney Singh in injured condition are Madan son of Heera Lal P.W. 5 and Shyam Lal P.W. 6 who heard from Banney Singh that the appellant had inflicted knife blows on him. The conviction of the appellant was mainly based on the dying declaration of the deceased Banney Singh. 6. The learned counsel for the appellant has contended that this is a case wherein there is no proof of the previous enmity and the most important witness Rajendra has not been examined and that the dying declaration of the deceased is not corroborated by the medical evidence. Hence, at the most it can be said to be a case of infliction of one injury on the deceased only for which there was no premeditation. According to him the offence does not travel beyond Section 304-11 I.P.C. 7. We have seen the injuries of the deceased which have been quoted above. In the first information report Ex.P. the injury on the shoulder was attributed to one accused Nand Singh and in Ex.P. 33, dying declaration, Banney Singh has stated that 2-3 blows were inflicted by the appellant on his chest but there is only one wound according to the report of the Doctor. Hence, when the dying declaration is tested with the help of the medical evidence and the first information report, it can be said that only on a blow on the chest stands corroborated and this can be attributed to the appellant Amar Singh. Hence, when the dying declaration is tested with the help of the medical evidence and the first information report, it can be said that only on a blow on the chest stands corroborated and this can be attributed to the appellant Amar Singh. It is a case of infliction of one injury only and the genesis of the incident is not known. Hence, it can be said that the appellant did not have the intention of causing the death of Banney Singh but the act was done in a sudden fight. However, looking to the fact that the injury caused by him by the knife is on the vital part, it can be said that he had the intention of causing such bodily injury as is likely to cause death and his offence would fall under Section 304 part-I IPC. 8. Considering the circumstances, the appeal of the appellant is partly allowed. His conviction and sentence under Section 302 IPC is set aside and he is convicted for the offence under Section 304 part I IPC and sentenced to five years' rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine, he shall undergo rigorous imprisonment for two months. *******