N. J. PANDYA, J. ( 1 ) THE state has come up in appeal against the judgment of acquittal rendered by the learned Additional Sessions Judge, Panchmahals at Godhra, in respect of charge under Sec. 302 read with Sec. 34, IPC. No doubt, the learned Trial Judge while rendering the judgment on 21. 6. 1993, in Sessions Case No. 121 of 1992, had convicted the respondent- accused Kantibhai for offence under Sec. 304 Part II. The remaining two accused, however, came to be acquitted so far as the main charge of murder is concerned, but one of the remaining accused, namely, Mohanbhai came to be convicted under Sec. 323 and was given the benefit of probation. The third accused- Manjulaben, mother of the first accused-Kantibhai was acquitted totally. ( 2 ) CRIMINAL Appeal No. 1041 of 1993 is against respective acquittal orders of the respective accused and Criminal Appeal No. 1042 of 1993 is apparently out of abundant caution for getting the sentence enhanced as in spite of conviction order under Sec. 304 part II, the learned Trial Judge by the aforesaid judgment has awarded only R. I. for five years and a fine of Rs. 1000/-, and in default, R. I. for five months. ( 3 ) THE incident happened on 20. 2. 1992 at about 9 A. M. This meeting was preceded by an event of earlier day when accused-Kantibhai was opening a water pipe, the deceased took an objection to it that how do you open the pipe when on earlier occasion, he had refused to do so giving out an excuse that it is not working. This led to a verbal quarrel and the accused had chased Saburbhai, the deceased, at that time also, when the neighbours intervened and they were separated. The accused had gone away to Baroda thereafter and, therefore, on the next day, a meeting was called of Panchas, where the dispute between the two was to be resolved. They met at the place of complainant- ratansinh Valsinh, PW. 7, Ex. 25. All other parties to the dispute had gathered together, but the accused-Kantibhai had not come. Messengers were, therefore, sent to bring him from his shop and finally he conveyed that he is coming. Soon he came there. Then one of the Panchas-Valabhai asked him as to why is he quarrelling with Saburbhai, the deceased. 7, Ex. 25. All other parties to the dispute had gathered together, but the accused-Kantibhai had not come. Messengers were, therefore, sent to bring him from his shop and finally he conveyed that he is coming. Soon he came there. Then one of the Panchas-Valabhai asked him as to why is he quarrelling with Saburbhai, the deceased. There was also a dispute as to cutting of electricity wire and thereby disconnecting supply. Kantibhai replied almost unwillingly that his uncle Mohan was trying to cut the wire and, as he could not do the same, he did it. This in fact led to verbal quarrel and kantibhai and Mohansinh got enraged and challenged Saburbhai to come out in the open. Mohansinh said to have made use of a wooden stick meant for pounding rice and a blow was given on the head of Sabur and Kantibhai took out a knife from his pocket and straightaway pushed it into the abdomen region of Saburbhai. At that time, Mohansinh is said to have given a stick blow on the back of the deceased. ( 4 ) THE persons who had gathered naturally intervened and separated the quarrelling parties, but before that, blow was inflicted with fatal consequence. ( 5 ) THE deceased was taken to nearby hospital in a tractor and before he could reach there, he breathed his last. ( 6 ) THE police was informed, complaint was lodged, Ex. 26, and even the investigation started. ( 7 ) THE medical evidence led by the prosecution is at Ex. 12, deposition of Dr. Shah, pw. 1 at page 43. The fatal injury is no doubt the one given in the abdominal region and is clearly the one that could have been inflicted by a knife and that is what the doctor has said after identifying the weapon in the course of his deposition. Paragraph 8 of his deposition may be seen for the purpose. He has clearly opined that the injuries caused were sufficient in the ordinary course of nature to bring about death. ( 8 ) NOW, looking to the nature of the injury, it was 4 cm. x 1/2 cm. x cavity deep with sharp edges of both sides and vertical in size. He has clearly opined that the injuries caused were sufficient in the ordinary course of nature to bring about death. ( 8 ) NOW, looking to the nature of the injury, it was 4 cm. x 1/2 cm. x cavity deep with sharp edges of both sides and vertical in size. This would mean that before the knife was taken out, it was twisted inside the body and in the process, artery was cut and so was smaller intestine at duodenal junction with also damage at the jejunum section. This naturally led to internal bleeding very profuse one, and, injury to the intestine coupled with the said internal injury to the artery, as the doctor has clearly opined, was sufficient to cause death. ( 9 ) THE learned Trial Judge after having appreciated this position, no doubt, has come to the conclusion that death is the result of this injury and, therefore, has held that the death is homicidal. But, in our opinion, unfortunately, the learned Trial Judge has given undue importance to what has been merely an opinion evidence of the doctor brought out by the defence in the course of his cross-examination. ( 10 ) IN the cross-examination of the doctor at paragraph 11, the doctor has said that, looking to injury No. 2, i. e. the abdominal injury, there is a possibility of either man dying or the man surviving. This has been highlighted by the learned Judge in paragraph 20 of his judgment at page 195 and from there, he has tried to draw an inference that this opinion of the doctor would indicate that the intention to cause death was lacking. ( 11 ) THE manner in which the incident has happened clearly indicates that the accused-respondent was a very reluctant party to the aforesaid conciliation. His response to the querry put to him was also insulting. From the version of the two eye witnesses, who are Gokalbhai, Ex. 31, page 107 and Chaturbhai, Ex. 34, page 125, the accused-Kantibhai had chosen to remain standing all throughout and was obviously prepared with a knife in his pocket. This would hardly indicate an attitude of conciliation. His response to the querry put to him was also insulting. From the version of the two eye witnesses, who are Gokalbhai, Ex. 31, page 107 and Chaturbhai, Ex. 34, page 125, the accused-Kantibhai had chosen to remain standing all throughout and was obviously prepared with a knife in his pocket. This would hardly indicate an attitude of conciliation. It would certainly indicate the attitude of confrontation and when a weapon like knife was carried, it would not be a mere confrontation, but it would indicate that the preparation was full and he was ready to inflict injury with it. Knife as shown is 34 cms. long and that has been used and also in the manner indicated above as to pulling it out with a twist. This clearly shows that the accused had only one idea in his mind, namely, to do Saburbhai away with that. ( 12 ) THE reasoning of the learned Judge based on the aforesaid solitary opinion evidence of the doctor clearly applies in the face of the ocular testimony supporting medical evidence in the form of P. M. note as well as oral testimony of the very same doctor, the said conclusion of the learned Judge is, therefore, not sustainable. ( 13 ) THE result, therefore, is that the order of conviction will have to be altered from one under Sec. 304 Part II to an order of conviction under Sec. 302 by accepting the appeal. The appeal is, therefore, accepted. The order of the Trial Court acquitting accused-respondent-Kantibhai alias Kanubhai Balwantsinh Bariya for offence punishable under Sec. 302 is set aside. The accused-respondent-Kantibhai is convicted for offence under Sec. 302, IPC. So far as the sentence is concerned, life imprisonment is awarded and the period that he has undergone either as an undertrial prisoner or as a convict pursuant to the order of the Trial Court shall of course be taken into account for computing the period for which he has to undergo life imprisonment pursuant to this order. In view of this, no order is passed in Criminal Appeal No. 1042 of 1993 and is disposted of as not surviving. .