JUDGMENT 1. Both these appeals are directed against the judgment of the learned Sessions Judge, Udaipur, dated 17-2- 1988, whereby the accused appellant Ayub Khan has been held guilty of the offences under sections 302 and 452 I.P.C. and has been sentenced to life imprisonment together with a fine of Rs.50/- & in default to undergo one month's rigorous imprisonment under the first count and two years rigorous imprisonment together with a fine of Rs.50/- Sr default to further undergo one month's rigorous imprisonment for the second count. Both the substantive sentences have been ordered to run concurrently. 2. The facts necessary to be noticed for the disposal of the aforesaid appeals are that : some occurrence about a dog took place between the families of the deceased Yusuf and the accused Ayub Khan. It is alleged that deceased Yusuf's father gave a beating to dog of the accused's family and that caused tension between the two parties and there was hot verbal exchange between the two families two three times during the period preceding the date of the alleged occurrence. However, it is alleged that on 29-1-1987 at about 12 or 12.30 in the day, Yusuf (deceased) was working on his shop situated in Pannadhay Marg near Hathipol. His father Mohd. Hussain, while coming to the shop from his house, was informed on the way that accused Ayub has inflicted knife injuries to Yusuf and has seriously injured him. On this, he ran away towards his shop but before he could reach his shop, Yusuf had already been shifted to the hospital by the well-wishers, whereas Ayub was caught at the spot by P.W.3 Haji Abdul Rehman and was handed-over to PW 4 Abdul Salam. It is alleged that on account of this enmity, he went armed with a knife to take revenge from Yusuf to his shop, entered his shop and inflicted knife injuries to Yusuf. It appears that there has been a scuffle between the two in which Ayub inflicted knife injuries to Yusuf and Yusuf succumbed to the injuries received by him on the neck and shoulder, which had resulted in cutting of his jugular vein as also cutting of the pleura. The report of the incident has been marked as Ex.P.1, which has been lodged by the father of Ayub (deceased). Postmortem examination was got conducted by Dr. Kothari which has been marked as Ex.P.11. The report of the incident has been marked as Ex.P.1, which has been lodged by the father of Ayub (deceased). Postmortem examination was got conducted by Dr. Kothari which has been marked as Ex.P.11. His inquest memo was prepared and marked as Ex.P.2. The sits was also inspected on the next day when the shop was opened for the alleged recovery of knife which, it is alleged, had been thrown by the accused in the shop of the deceased. The recovery memo of the blood stained knife is Ex.P.5 and the site inspection memo & site plan has been marked as Ex.P.4. Photographs of the shops have also been taken and they have been marked as Ex.P.7 to Ex.P.9. Formal F.I.R. has been marked as Ex.P.14. On the information and at the instance of the accused, it is alleged that blood stained knife was recovered. The information memo has been marked as Ex.P.17 and the recovery memo has been marked as Ex.P.16. When the accused was arrested, his jacket which he was wearing at the time of the incident, was taken into possession. The blood stained clothes of the deceased were also taken into possession and sent for chemical & serological examination. The Serologist report shows that the jacket recovered from the possession of the accused and the bush-shirt and pant of the deceased Yusuf were stained with human blood and the group of blood was found to be 'A' group. However as regards the blood smeared soil which was recovered from the place of the occurrence, its blood group could not be known because it was disintegrated and moreover, no blood was detected on the knife. 3. After usual investigation, the case was challaned in the Court of learned C.J.M., Udaipur, from where it was committed for trial to the Court of learned Sessions Judge, Udaipur, who framed a charge Under Sections 302 r/w 452 I.P.C. and 25 of the Arms Act against the accused, who did not plead guilty to the charge, whereupon the prosecution examined as many as nineteen witnesses in support of its case. The statement of the accused was recorded under section 313 Cr.P.C. and he has taken the defence that actually, he was sitting on his shop and it was Yusuf (deceased) who came therein an aggressive posture and inflicted certain injuries on his person and dragged him to his shop, where it is alleged that he was again beaten by Yusuf and was to be thrown in the burning furnace but before that, he became unconscious and, therefore, according to Ayub, he has not inflicted any of the injuries received by the deceased. Rather, he is the victim of the attack by the deceased. In this respect, Ayub has examined two witnesses in his defence namely Abdul Rahim (DW 1) and Keshar Singh (DW 2). 4. After hearing both the parties, the learned Sessions Judge, Udaipur has totally disbelieved the defence story and has categorically recorded a finding that the accused Ayub went to the shop of the deceased in an aggressive posture armed with a knife and it was he who has inflicted the injuries received by the deceased Yusuf, which have resulted into his death. The Doctor has opined that these injuries were sufficient in the ordinary course of nature to have caused the death of Yusuf and, accordingly, accused Ayub has been held guilty as aforesaid and hence these appeals. 5. We have heard Mr. A.K. Acharya, learned counsel appearing for the accused petitioner and Mrs. Chandralekha, Public Prosecutor appearing for the State & carefully perused the relevant record. 6. It was argued by Mr. Acharya that the accused has not inflicted any of the injuries received by the deceased. Actually, he was sitting on his shop and it was Yusuf (deceased), who had come to his shop. Even he was not present at the time when beating to his family dog took place and, therefore, he neither had any enmity with the deceased nor had he any connection whatsoever with the incident. Rather, after beating him, Yusuf dragged him to his shop. The recovery of the knife is fictitious and it has not been found to be stained with blood. Dr. Kothari has examined him also and found three injuries on his person and, therefore, the defence story is probable. Rather, after beating him, Yusuf dragged him to his shop. The recovery of the knife is fictitious and it has not been found to be stained with blood. Dr. Kothari has examined him also and found three injuries on his person and, therefore, the defence story is probable. In the alternative, he argued that even if it is held that the accused had gone to the shop of the deceased and had inflicted injuries, the injuries have been inflicted in a scuffle which is very much apparent from the fact that the deceased as also the accused received number of injuries caused by blunt weapons. However, for such a trivial matter, nobody could have intended to kill the deceased and, therefore, the case, at its best cannot proceed beyond section 304 part-II I.P.C. 7. Learned Public Prosecutor has, however, submitted that it is a fully proved case in which the accused on account of the alleged enmity, went to deceased shop armed with a knife and inflicted injuries on vital organs of the person of deceased Yusuf, which have resulted in his death. The Doctor has also opined that those injuries were sufficient in the ordinary course of nature to have caused death. Therefore, the accused had rightly been held guilty of the offences under sections 302 r/ w 452 I.P.C. She has further submitted that the defence taken by the accused is totally worthless and does not deserve any scrutiny. If accused was unarmed and was beaten by Yusuf and had become unconscious on the shop of the deceased, how could he have inflicted those injuries to deceased and, therefore, at the best, it can be said that when accused tried to attack, Yusuf(deceased) must have put certain resistance & in that process, accused might have also received certain injuries but the very fact that the incident has taken place on the deceased shop, where sharp edged weapon injuries have been caused on the person of deceased Yusuf by accused, clearly shows that accused went there armed with a knife and that clearly shows his intention. Therefore, the learned Sessions Judge, Udaipur was right in rejecting the defence of the accused. 8. We have considered the rival submissions made at the bar and meticulously gone through the record of the case. Therefore, the learned Sessions Judge, Udaipur was right in rejecting the defence of the accused. 8. We have considered the rival submissions made at the bar and meticulously gone through the record of the case. In this case, the FIR has been lodged soon after the occurrence by the father of deceased Yusuf which is marked as Ex.P.1 in which brief narration of the incident has been recorded, i.e., that the accused Ayub has inflicted the injuries on the person of deceased by knife. The injured was immediately shifted to the hospital by the well-wishers and, there, he was declared dead within fifteen minutes of the arrival in the hospital and, thereafter, his autopsy was conducted and to prove that autopsy, PW 13 Dr. N.S. Kothari has been examined. He was categorically stated that he found four incised wound injuries on the person of the deceased. One was of course a sharp weapon abrasion just behind the right ear and the second wound was an incised wound of the size of 1.0cm X 0.5cm on the right side of the neck but on the front side which was bleeding, there was an incised wound of the size of 2.5cm X 1.0cm on the upper one third right side of the neck posterior-laterally. On opening the neck, it was found that there was a small cut over the anterior jugular vein and bleeding was present underneath injury No.2 and an injury was also found on the neck vessels, i.e., external right carotid artery and external jugular vein underneath injury No.3 were also cut with oozing of blood. Some blood clotting also took place by the time. He further found an incised wound of the size of 3.00cm X 1.5cm on the right shoulder anteriorly directed downwards and medically towards upper part of the chest and tissues were stained with blood clots. On opening the chest, he found that there was perforation of right pleura and right upper lobe of lung measuring 1.0cm X 0.5 X 1.0cm size underneath injury No.4 and pleura cavity was full of partially clotted blood about 500 to 600 milligrammes. Of course, there was one more incised cut wound measuring 0.5cm X 0.2cm into skin deep on the tip of left thumb, which was a simple injury. Of course, there was one more incised cut wound measuring 0.5cm X 0.2cm into skin deep on the tip of left thumb, which was a simple injury. There were fifteen other injuries which were described as abrasions and lacerated wounds, found on the person of deceased ' Yusuf. Dr. Kothari has proved Ex.P.11, postmortem report, wherein it has been categorically recorded that death was homicidal and it was the result of the injuries that have been received on the neck. He has opined that cause of death was shock and hemorrhage due to injury of neck blood vessels and perforation of right upper lobe of lung, which are vital organs of the body, and in his opinion, these injuries were sufficient in the ordinary course of nature to have caused death. These injuries could have been caused by a knife. Now, this has to be determined whether the accused Ayub has inflicted these injuries or not? On that aspect of the matter, the most important witness who has been examined is PW 2 Abdul Rasheed, who is an eye witness of the occurrence. When Abdul Rasheed heard the noise about fight between Ayub and Yusuf (deceased), he came from his house, reached the shop of the deceased Yusuf and saw that Ayub was inflicting injuries with a knife on the neck, chest and shoulder of Yusuf and, thereafter, it is alleged that Yusuf fell down. Accused Ayub then sat on his chest. Whereupon, he caught hold of his hair and pulled him up. On this, accused threw away his knife and thereafter he was taken out of the shop and was handed-over to PW 4 Abdul Salam. Abdul Salam has also stated that when he heard the noise that Yusuf has been killed, he reached Yusuf's shop and found that Abdul Rasheed was holding Ayub by his hair and was bringing him out and Yusuf was lying in an injured condition in his shop and blood was oozing out of his body. Ayub was handed-over to him and then he handed-over the accused to the police. PW 3 Abdul Rehman has been examined as an eye witness. Although he initially stated that he saw Ayub inflicting knife blows to Yusuf but later in his cross-examination, he has admitted that he had not seen the actual infliction of injuries. Ayub was handed-over to him and then he handed-over the accused to the police. PW 3 Abdul Rehman has been examined as an eye witness. Although he initially stated that he saw Ayub inflicting knife blows to Yusuf but later in his cross-examination, he has admitted that he had not seen the actual infliction of injuries. Certain cross-examination has been made with these witnesses which shows that there was some scuffle between the two and thereafter these injuries have been inflicted. Although the eye witnesses have denied this fact but it appears from the evidence of these witnesses coupled with the testimony of the doctor that some scuffle must have ensued because number of blood stained incised wound injuries and lacerated wounds have been received by the deceased and three injuries by the blunt weapon have been received by the accused also but these blunt weapon injuries received by the deceased are not the cause of his death. If the accused had gone to the shop of deceased armed with a knife and tried to attack on Yusuf, certain amount of resistance must have been offered by deceased Yusuf, before he could be overpowered and, therefore, if any scuffle had taken place, that was quite natural in the facts and circumstances of the case but from the evidence of these witnesses, it is transparent that the accused Ayub went armed with a knife to the shop of the deceased and inflicted injuries to him, which were the cause of his death. Of- course, the motive for the crime was only a petty incident about beating to accused's family's dog by the complainant side and, therefore, we are convinced that the accused Ayub could not have intended to cause the death of Yusuf but when accused had gone to the shop of the deceased armed with a knife and has chosen to inflict injuries on his vital organs such as neck and chest it can safely be inferred that he intended to cause such injuries which were likely to cause his death and, therefore, in the facts and circumstances of the case, we are of the considered opinion that the case does not travel beyond section 304 part-I I.P.C. because firstly, a knife has been used in inflicting injuries on the vital organs of the person of the deceased Yusuf and as a result thereof, the vital organs have been injured and the nature of those injuries was such that they were sufficient in the ordinary course to have caused death. The number of injuries inflicted and parts of the body selected for infliction of the injuries as well as the depth of the injuries clearly depict that the accused intended to cause such bodily injuries which were likely to cause death of Yusuf, the case cannot be taken out of the purview of the intention and be taken into sphere of the knowledge and, therefore, the contention of Mr. Acharya that the case, at best, cannot travel beyond Section 304 part-II I.P.C. cannot be accepted. Accused Ayub has inflicted the said injuries to Yusuf (deceased) and, therefore, he deserves to be held guilty of the offence under section 304 part-I I.P.C. This fact that the accused took part in the occurrence, further stands corroborated by the 'A' group of blood found on his jacket, which he was wearing at the time of the occurrence, which tallied with the blood group of the clothes of the deceased Yusuf. It is true that the recovery of the knife, which has been shown at the instance of the accused, is not a very reliable recovery because the witnesses have stated that the knife, i.e., the alleged weapon of offence, was thrown in the shop itself at the time of the incident. Moreover, it was not found blood stained and, therefore, the recovery of the knife does not help the prosecution case. 9. Moreover, it was not found blood stained and, therefore, the recovery of the knife does not help the prosecution case. 9. Be that as it may, we are firmly of the view that accused Ayub should be held guilty of the offence under section 304 part-I I.P.C. 10. Consequently, the appeals filed by accused Ayub partially succeed. His conviction and sentence recorded by the learned Sessions Judge, Udaipur, under Section 302 I.P.C. is converted into section 304 part-I I.P.C. & he is sentenced to nine years, rigorous imprisonment together with a fine of Rs.50/ - & in default to further undergo one month's rigorous imprisonment. However, his conviction and sentence for the offence u /s. 452 I.P.C. recorded by the learned Sessions Judge, Udaipur is maintained. Both the substantive sentences are ordered to run concurrently. 11. The result of these appeals be conveyed to the jail Authorities for compliance.Appeal partly allowed. *******