JUDGMENT 1. - This appeal is directed against the judgment dated 1-9-86, passed by the Additional District and Sessions Judge, Bali, by which the learned Additional Sessions Judge convicted the accused-appellant for the offence under Section 302 I.P.C. and sentenced him to undergo Imprisonment for life. 2. Accused-appellant Gengia, alongwith Chatra and Chamna, was tried by the learned Additional Sessions Judge, Bali, for the offences under Sections 307/34, 324/34 and 302/34 I.P.C. The case of the prosecution is that on 30-11-84, accused-appellant Gengia, Chatra and Chamna inflicted injuries to Galla, Roopa and Kheta with arrow, Kulhari and sword. Accused Chatra and Chamna inflicted injuries by the Kulhari and by the sword to injured Kheta, Roop and Galla, who raised an alarm, which attracted Panna S/o Galla, who came near the shop of Manjoor Bhai, near which the incident took place and saw an arrow penetrated in the abdomen of Galla, which was pulled-out by Galla and he informed Panna that accused Gengia has caused that injury in his stomach by the arrow. The prosecution, in support of its case, examined sixteen witnesses and the accused, in their defence, examined DW 1 Bhopa Ram. The learned Additional Sessions Judge, after trial, convicted accused-appellant Gengia for the offence under Section 302 I.P.C. and also, convicted and sentenced the other accused Chatra and Chamna for the offence under Section 324 I.P.C. but, however, acquitted all the accused of the offences under Sections 302/34, 307, 307/34 and 324/34 I.P.C. Accused Chamna and Chatra did not prefer any appeal as they had already served-out the sentence passed by the learned trial Court against them but accused- appellant Gengia, dissatisfied with his conviction and sentence for the offence under Section 302 I.P.C., passed by the learned trial Court vide its judgment dated 1-9-86, has preferred this appeal. 3. The case of the prosecution rests mainly upon the statements of three eye witnesses, viz., PW 4 Khima, PW 7 Khetia and PW 9 Roopa and the evidence of PW 8 Panna, who on hearing the cries of Galla, reached at the place of the occurrence and attended his father Galla, who informed him that accused- appellant Gengia has caused injury on his stomach by an arrow and before whom the dying declaration was made by deceased Galla. 4. 4. Learned counsel for the accused-appellant does not challenge the incident and the evidence of the prosecution witnesses which has been relied upon by the prosecution and believed by the learned trial Court and his only submission is that even from the admitted facts the offence under Section 302 I.P.C. is not made-out against the accused-appellant and at the most the offence against him falls only under Section 326 I.P.C. Reliance in support of the contention has been placed by the learned counsel for the appellant on: Kachwa v. The State of Rajasthan (1985 Cr.L.R. (Raj.) 121) , The State of Jammu and Kashmir v. Hazara Singh and another ( AIR 1981 SC 451 ) , Sabal Singh v. The State of Rajasthan (1985 Cr.L.R. (Raj.) 455). Bhagga v. The State of Rajasthan (1985 Cr.L.R. (Raj.) 758) , Darshan Singh v. The State of Rajasthan (1984 Cr.L.R. (Raj.) 379) , Chittar Nath v. The State of Rajasthan (1987 Cr.L.R. (Raj.) 791) and Jaganaya alias Jagan Lal v. The State of Rajasthan (1985 Cr.L.R.(Raj.) 748) . The learned Public Prosecutor, on the other hand, has submitted that the learned trial Court has not committed any illegality in convicting and sentencing the accused-appellant for the offence under Section 302 I.P.C. and all the ingredients of the offence under Section 302 I.P.C. have been made-out in his case. 5. We have considered the submissions made by the learned counsel for the parties. 6. PW 12 Dr. Shyam Lal Vaishnava, who attended Galla and conducted the post-mortem on his dead body, has nowhere stated that the injury inflicted by the accused and received by deceased Galla was sufficient in the ordinary course of nature to cause the death of Galla. Only one injury was inflicted by the accused-appellant by an arrow on the stomach of deceased Galla and there is no repetition of the injury by the accused-appellant. The genesis of the incident has not been properly disclosed by the prosecution and it appears that the occurrence took place at the spur of the moment without any pre-meditation and, therefore, the accused-appellant cannot be imputed with the intention to cause the death of deceased Galla or with the intention to cause that particular fatal injury, but he can be imputed with the knowledge that by his act he was likely to cause an injury which was likely to cause the death of Galla. In the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing his death or Intentionally inflicted that particular injury which, in the ordinary course of nature, was sufficient to cause his death, neither Clause Firstly not Thirdly of Section 300 I.P.C. will be attracted. The accused-appellant, at the most, can be imputed with the knowledge that the injury caused by him may result in causing the death of deceased Galla and, therefore, he can be convicted for the offence under Section 304 Part II I.P.C. and deserves to be acquitted of the offence under Section 302 I.P.C. 7. In the result, the appeal, filed by accused-appellant Gengia, is partly allowed. His conviction and sentence for the offence under Section 302 I.P.C., passed by the learned Additional Sessions Judge, Bali, vide his judgment dated 1-9-86, are quashed and set-aside and he is acquitted of this offence. But however, the accused-appellant is convicted for the offence under Section 304 Part II, I.P.C. and is sentenced to five years rigorous imprisonment. The appellant is in the jail since 4-9-86 and has served-out the sentence of five years rigorous imprisonment. As such he may be set-forth at liberty if he is not required in any other case.Appeal Partly Allowed. *******