MAITHLI SHARAN, J. This criminal appeal arises out of the judgment of convic tion and sentence passed by VIII Addl. Ses sions Judge, Lucknow on 13-2-1985 in Ses sions Trial No. 152 of 1982, convicting the accused- appellant Happu for an offence under Section 304, Part I of the Indian Penal Code and sentencing him to imprisonment for life. 2. The prosecution case, in brief, runs thus : In the night at about 10. 30 p. m. on 10-10-1981 the deceased Ram Chandra who was rickshaw puller, was inside his house alongwith his wife Smt. Tara, who was clean ing utensils ; outer door of the house was closed. Meanwhile two persons, out of whom one was accused-appellant Happu and other was unknown came to the deceaseds house and knocked at the door. The deceased Ram Chandra opened the door and then the appellant Happu alongwith the unknown persons, who was later identified to be one Shakil, were seen the accused was having knife in his hand. The accused-appellant Happu and Shakil threatened the deceased Ram Chandra, and abusing him they caught hold of him and dragged him to some place. There was hue and cry in the house and then Smt. Tara, the wife of the deceased Ram Chandra, raised alarm and cried for help. Accused-appellant Happu inflicted knife injury on the thigh region of Ram Chandra, as a result of which he fell down. The appellant Happu and the other accused Shakil thereafter ran away, but they were identified by the witnesses who had by then reached over there. The injured Ram Chandra was immediately taken to the Civil Hospital, Lucknow where he was examined by Dr. VP. Singh and he found two injuries on the person, the first injury was an incised wound 8 cm. x 1 cm. x bone deep on the front of the right thigh. The dying declaration of injured Ram Chandra could not be recorded as he was not found fit to give such a declaration. Later in the night at about 1. 10 a. m. he died. Ram Chandra-deceaseds wife Smt. Tara thereafter went to the Police-Station and lodged the first information report. 3. The autopsy was done on the dead body of Ram Chandra, the next day. Later in the night at about 1. 10 a. m. he died. Ram Chandra-deceaseds wife Smt. Tara thereafter went to the Police-Station and lodged the first information report. 3. The autopsy was done on the dead body of Ram Chandra, the next day. The police started investigation in the case, site-plan was prepared and the inquest report was also prepared, and the sample of bloodstained earth was seized. The accused-appellant Happu was arrested and on the information given by him bloodstained knife, by which the injury on the deceased Ram Chandras thigh was inflicted, was discovered and it was seized and sealed by the police. The Investigating Officer also recorded the statements of the witnesses, and after completing the investigation in the case charge- sheet was filed in the court. 4. The learned Addl. Sessions Judge framed charge for the offence under Section 302i. P. C. against the accused-appellant who pleaded not guilty and claimed to be tried. 5. Th"e prosecution led evidence and examined nine witnesses to prove its case. The appellant Happu in his examination under Section 313, Cr. P. C. stated that he had been falsely implicated in this case on account of enmity. 6. The learned trial court after the complete appraisal of the evidence adduced by the prosecution and the other material available on record came to the conclusion that it was proved beyond doubt by the prosecution that the case was covered under Section 304 (Part I) of the Indian Penal Code as the death of Ram Chandra was proved to have been caused by the accused-appellant Happu who was aware that he was causing such bodily injury by the knife which was likely to cause the death, and Ram-Chandra did die as a result of such bodily injury. Thus, the learned Addl. Sessions Judge convicted the accused- appellant for an offence under the said Section 304 (Part-I) of the Indian Penal Code and sentenced him to imprisonment for life. Being ag grieved by the judgment of conviction and sentence the accused Happu has preferred this appeal. 7. We have heard the learned counsel for the accused-appellant Happu and learned Government Advocate. 8. Sessions Judge convicted the accused- appellant for an offence under the said Section 304 (Part-I) of the Indian Penal Code and sentenced him to imprisonment for life. Being ag grieved by the judgment of conviction and sentence the accused Happu has preferred this appeal. 7. We have heard the learned counsel for the accused-appellant Happu and learned Government Advocate. 8. The main thrust of the learned coun sel for the appellant Happu is on the legal aspect of the case relating to the conviction of the appellant under Section 304 (Part-I) I. P. C. Though he has drawn our attention to the complete evidence available on record, yet he has vehemently argued that in any case the accused-appellant Happu could not have been convicted for the offence under Section 304 (Part-I) of the Indian Penal Code as the prosecution could not prove at all that the appellant had inflicted the knife injury to his victim (deceased) with intention to cause latters death; evidently enough injury No. 1 which was inflicted on the right thigh of the deceased Ram Chandra was on him non-vital part. His fur ther argument is that the appellant could also not be said to have had the knowledge that the injury he was inflicting on the per son of Ram Chandra (deceased) was likely to cause his death. He has further pointed out that the medical evidence also does not go to indicate that in the ordinary course of nature the said injury was likely to cause the death. Amplifying his arguments on these points the learned counsel for the appellant has argued that material available on record could only go to show that the appellant had voluntarily caused grievous hurt by the knife on the thigh of deceased Ram Chandra, and it did not matter in the eye of law that Ram Chandra died of that injury because of shock and hemorrhage. The learned counsel has mainly submitted that he had nothing to argue against the prosecution evidence which does go to indicate that the alleged knife injury was inflicted on the person of Ram Chandra so as to voluntarily cause grievous hurt only. The learned counsel has mainly submitted that he had nothing to argue against the prosecution evidence which does go to indicate that the alleged knife injury was inflicted on the person of Ram Chandra so as to voluntarily cause grievous hurt only. In this regard, the Government Advocate has also contended that the prosecution evidence is sufficient to connect the accused-appellant with the inci dent in question, but certainly he could not have either intended to cause the death of his victim Ram Chandra, and it could also not be said that he well knew that the injury he was inflicting on the person of Ram Chandra was likely to cause his death. 9. As already above, the medical evidence does go to indicate that grievous hurt was caused on the right thigh of the deceased Ram Chandra. On the basis of the arguments advanced by both the learned counsel it enlarges that the appellant Happu could not be taken to have intended to cause the death of his victim Ram Chandra in any case, but the fact remains that he did inflict the said injury on the right thigh of Ram Chandra. Thus, agreeing with the submissions advanced by the learned counsel for the appellant and taking into account the provisions of Section 326 of the Indian Penal Code we are of the view that the case is squarely covered by these provisions. Therefore, we find ourselves un able to agree with the order of conviction and sentence under Section 304 (Part-I) of the Indian Penal Code, recorded by the learn" trial Court against the appellant; instead we convict him for the offence under Section 326 of the Indian Penal Code and sentenced him to undergo rigorous im prisonment for ten years. In view of our conclusions this appeal is partly allowed. Orders of the conviction and sentence passed by the learned trial Court are set aside and the appellant is convicted and sentenced under Section 326 I. P. C. , as aforesaid. 10. The record shows that the accused-appellant Happu was already in jail at the time of pronouncement of the judgment by the learned trial Court, i. e. on 13-2-1985, meaning thereby that he has already served out the period of sentence of ten years passed by us. Therefore, it is ordered that he be released forthwith if he is not wanted in any other case. Therefore, it is ordered that he be released forthwith if he is not wanted in any other case. The office is directed to send the record alongwith the copy of the judgment to the court of Sessions Judge, Lucknow and C. J. M. Lucknow to take necessary steps for the release of the accused- appellant Happu forthwith. Appeal partly allowed. .