JUDGMENT 1. - The appellant Prem Shanker was tried for an offence Under Section 302 IPC alongwith two other accused persons who were charged under Section 302 r/w Section 34 of the IPC. The appellant has been convicted and sentenced to undergo life imprisonment with Rs. 1000/- as fine. The two other accused persons were acquitted giving them benefit of doubt. 2. Jugal Kishore PW 1 neighbour of the deceased Shyamlal lodged a report at 8.30 P.M. on 17.4.88 about the incident which had taken place at 7.40 P.M. in Udaipur. He informed that he was sitting on a Chabutra in his locality on the date of the incident which was a Sunday. A film was being shown on the Television and after the interval deceased Shyamlal was viewing the television standing near the shop of Manaklal Teli and then went to smoke Bidi on Badi Holi. Prakash also had gone to purchase Candle Stick at the Grocers shop. Lacchu, Prem Shanker, Hemprakash and Laluram were standing there. Lacchu, Prem Shanker and Hemprakash had a altercation with Prakash Bhoi and these three persons started beating Prakash. On this, Shyamlal and Jugal Kishore also went there. On Shyamlal trying to intervene, Lacchu, Prem Shanker and Hemprakash pounced on Shyamlal and started beating him. Lacchu showered kicks and fist blows on Shyamlal. Prem Shanker drew a knife and hit Shyamlal on the eyes, chest, stomach and private parts. Shyamlal got severely injured, blood started oozing from his body and his clothes got soaked in blood. Hemprakash assaulted Shyamlal with Zara and also tried to beat Jugal Kishore. On Jugal Kishore shouting, Tara Chand, elder brother of Shyamlal and his wife Sita Bai also arrived on the spot. The three accused persons ran away. Shyamlal tried to chase them, but fell down because of injuries. Jugal Kishore took him to the hospital and then went to police station to lodge the report Shyamlal died later on. On trial the appellant was convicted and sentenced as aforesaid. 3. PW 1 Jugal Kishore reiterated the story given by him in the FIR. In statement at the trial he stated that Prem Shanker, Hem Prakash, Lacchu were beating Prakash Bhol by showering fist blows and kicks on him. Deceased Shyamlal tried to intervene on which Prem Shanker, Hem Prakash and Lacchu pounced upon Shyamlal. 3. PW 1 Jugal Kishore reiterated the story given by him in the FIR. In statement at the trial he stated that Prem Shanker, Hem Prakash, Lacchu were beating Prakash Bhol by showering fist blows and kicks on him. Deceased Shyamlal tried to intervene on which Prem Shanker, Hem Prakash and Lacchu pounced upon Shyamlal. Prem Shanker drew a knife and hit Shyamlal on the Chest, then he hit Shyamlal in the abdomen and then he hit him with knife on eyes, he had also given one knife blow on private parts of Shyamlal. Hem Prakash had assaulted Shyamlal with Zara. He also stated that Hem Prakash gave several blows of Zara to Shyamlal. PW 8 Prakash Bhoi stated that at the time of incident he had gone to purchase Candle Stick, as he was returning Prem Shanker who had come to buy a Cigarette on the shop stumbled on him and Prem Shanker accosted Prakash Bhoi as to why he dashed against him. Prem Shanker tried to caught hold of him and Hern Prakash and Lacchu also joined in the quarrel against Prakash Bhoi, Shyamlal, Jugal Kishore and Laluram also, came on the spot. Shyamlal intervened and rescued Prakash. On this Hem Prakash hit Shyam Lal with a Zara and leaving Prakash started assaulting Shyamlal. Hem Prakash was giving Zara blows to Shyamlal and Lacchu was showering fist blows and kicks. Prem Shanker hit Shyamlal with a knife on the ribs and intestine and in the abdomen. Shyamlal fell down injured and started bleeding. On hearing the shouts Tara Chand and Sita Bai came on the spot, then the accused fled away. A suggestion was given to this witness in the cross-examination that in fact he was the assailant and had hit Shyamlal with a knife. PW 10 Laluram also deposed to the fact that Lacchu, Hem Prakash had caught hold of Shyamlal and taken him towards Badi Holi. Prem Shanker took out knife from his pocket and started assaulting Shyamlal. However, this witness states to have seen the incident from a distance. PW 13 Radhey Shyam and PW 14 Sita Bai did not support the prosecution and were declared hostile. PW 16 Dr. Anish Ahmed testified to the injuries received by the deceased. There were as many as nine incised wounds and two stab wounds received by the deceased. However, this witness states to have seen the incident from a distance. PW 13 Radhey Shyam and PW 14 Sita Bai did not support the prosecution and were declared hostile. PW 16 Dr. Anish Ahmed testified to the injuries received by the deceased. There were as many as nine incised wounds and two stab wounds received by the deceased. In his opinion the cause of death was shock and excessive haemorrhage because of injuries to liver and right kidney and as also other injuries. He testified that all the injuries were anti-mortem and were sufficient to cause death. Prem Shankers wife Pappi was examined as defence witness. She deposed that Prem Shanker belongs to Vaishnav caste and as she had married Prem Shanker, Bhois are on inimical terms with them. She belongs to Bhoi caste and her Bhoi relatives entertain a grouse against Prem Shanker. DW 2 Brij Kishore has been examined by the defence to show that none of the accused persons was engaged in business of dealing in Kerosene. This was to meet the statement In the dying declaration of Shyamlal that one of the assailants was dealer in Kerosene. 4. It was contended by the learned counsel for the appellant that several injuries were caused by the Zara and it was possible that the injuries which were fatal might have been caused by the Zara which was not the weapon handled by the appellant. According to the learned counsel incised wounds could have been caused by the Zara. It was also contended that the weapon of offence was not shown to the medical expert and the possibility of the injuries having been caused by Zara was not eliminated. We do not consider this to be of any significance. There is a clear and cogent evidence of eye-witnesses that the appellant had assaulted the deceased with knife. There is no doubt that stab wounds were caused by knife by the appellant and no medical expert is required to conclude that. It is clear that the injuries on the liver and kidney were caused by the appellant. 5. It was also contended that the deceased in his dying declaration had not named the appellant. Actually it is not a case where deceased knew the appellant intimately or by him name. It is clear that the injuries on the liver and kidney were caused by the appellant. 5. It was also contended that the deceased in his dying declaration had not named the appellant. Actually it is not a case where deceased knew the appellant intimately or by him name. He has named Lachhu, Hemprakash and the other persons he had stated was a dealer in Kerosene and his name Gajendra or Prema or Jugal Kishore. There is ample evidence on record that this third person was appellant Prem Shanker and no one else. 6. It was also contended that at the time of the incident there was darkness all around and it was not possible for anyone to identify the assailants. There is ample evidence on record that there was light in which incident could have been seen. It is also clear that there was no reason for the deceased or the other eye witness to falsely implicate the accused persons. The evidence regarding recovery of clothes and knife was also criticised as un-trust worthy. It is true that the information has been received from two persons and recoveries have been effected by taking them simultaneously to the places from where the articles were recovered. But even despite this, evidence of the eye witness is reliable and some lacuna in the evidence as to the recoveries is of no use to the appellant. Lastly the alternative argument was that the case at best falls within the purview of Section 304 Part-II of the IPC. It was contended that there was no previous enmity between the parties and the incident took place on the spur of the moment. There was no direct quarrel between the deceased and the appellant and, therefore, there could not have been any intention to cause murder on the part of the appellant. We are unable to agree with this submission because the injuries inflicted on the deceased clearly show intention to cause death. That there was no previous enmity between the parties could only aggravate the case against the appellant because he had no reason to attack the intervener in such a violent manner. 7. For the aforesaid reasons, we are unable to accept this appeal. It has no force. It is dismissed. *******