JUDGMENT 1. 1. This appeal has been directed against the judgment dated 10.5.95 passted by the learned Additional Sessions Judge, Beawar, whereby he convicted tne accused-appellant for the offence Under section 302 Indian Penal Code and sentenced him to life imprisonment with a fine of Rs. 2000/- and in default of payment of fine to further undergo imprisonment for two months. 2. The facts of this case are short and simple and can be recapitulated within a narrow compass. It appears that on 16.6.94 at 12.15 p.m. PW 1 Bhagwan Singh submitted a written report (Ex.R 1) to PW 12 Ratan Singh, SHO, Police Station, Beawar Sadar alleging that on 15.6.94 at about 8.00 p.m. while going to village-Kesarpura, when he reached on the `Pulia' he saw Ganpath Singh and appellant- Mahendra Singh consuming liquor, who seeing him shouted pakro sale ko-maro' and chased him. He speeded up his bicycle and escaped. On reaching village-Kesarpura he informed Laxman Singh and Har Lal (PW 8) about the said incident. Thereupon they accompanied him and came to the 'Pulia' where Mahendra Singh and Ganpath Singh were still sitting and taking liquor. Laxman Singh asked them as to why they had run after Bhagwan Singh. Thereupon appellant- Mahendra Singh, who had an empty bottle with him broke open the same on the road and dealt a bottle blow on the abdomen of Laxman Singh, who sustained injuries and fell down. It was further alleged in the report that Ganpath Singh gave a kick blow to Laxman Singh. He also dealt a lathi blow causing injury to Laxman Singh. Thereafter both the assailants fled away. Blood was oozing out from the abdomen of Laxman Singh, who was immediately taken to the hospital in a tempo, where he was admitted. Ratan Singh, SHO drew formal FIR (Ex.R 2) and registered a case for offences Under sections 307 & 323 Indian Penal Code. The SHO rushed to the spot, prepared the site plan Ex.P 3 and seized the pieces of bottle vide seizure memo Ex.R 4. 3. PW 13 Dr. M.C. jain, Medical Jurist, examined Laxman Singh and as per Medico Legal Report (Ex.P 23) found the following injuries : i. Lacerated wound bleeding 2.5"x.5"xdepth to be examined in operation theatre. ii. Pain abdomen with distension-diffused iii. Pain chest-diffused. Laxman Singh was in shock and his general condition was low. 3. PW 13 Dr. M.C. jain, Medical Jurist, examined Laxman Singh and as per Medico Legal Report (Ex.P 23) found the following injuries : i. Lacerated wound bleeding 2.5"x.5"xdepth to be examined in operation theatre. ii. Pain abdomen with distension-diffused iii. Pain chest-diffused. Laxman Singh was in shock and his general condition was low. His BP was 100/70 mm of Hg & pulse 84/minute. The doctor advised X-Ray examination of chest and abdomen in standing position. 4. On 16.6.94 PW 11 Dr. Gulshan Malik, Radiologist, took the skiagram of chest and abdomen of Laxman Singh vide X-Ray plates Ex.R 15. However, as per X-Ray report Ex.R 16 no bony injury was detected in the chest region. The skiagram of abdomen also did not reveal any bony injury. Since Laxman Singh was unable to stand. The radiologist advised for repeat skiagram of abdomen. However, the same could not be repeated as Laxman Singh died in the morning of 18.6.94. Dr. Jain vide his report, Ex.R 24 opined that injury No. 1 of MLR (Ex. 23) was grievous in nature. 5. PW 13 Dr. M.C. Jain conducted the Medico Legal Autopsy of deceased Laxman Singh and found the following external injuries : (i) stitched wound over abdomen 6" in mid region below umbilicus. (ii) incised wound on the right lower abdomen region 1"x1/2" deep in abdominal cavity. This was a wound for drain tube done during operation. (iii) stitched wound in the left leg fossa 21/2" on the right leg. It was a vini section wound. On dissection, the doctor found that the peritoneum was ruptured on the left side. The stomach and small intestine were congested but those were empty. The large intestine was repaired 2" on the anterior aspect of descending colon. The liver, spleen and kidney were congested. Dr. M.C. Jain, who was also present during the operation of Laxman Singh, which was conducted on 17.6.94 and on opening the abdomen, he found foul faecal smelling dirty fluid about 2 litres in the abdomen, which strongly suggested faecal peritonitis. Dr. Jain, prepared post mortem report (Ex.P 27) and opined that the cause of death of Laxman Singh was due to toxaemia on account of faecal peritonitis due to leakage of faecal matter, undigested and semi digested food material from ruptured wound of descending colon in abdominal cavity. 6. Dr. Jain, prepared post mortem report (Ex.P 27) and opined that the cause of death of Laxman Singh was due to toxaemia on account of faecal peritonitis due to leakage of faecal matter, undigested and semi digested food material from ruptured wound of descending colon in abdominal cavity. 6. It is alleged that on 16.6.94 at 1.45 p.m. Ratan Singh (PW 12) recorded the Parcha Bayan (Ex.P. 17) of Laxman Singh in presence of the doctor. After the death of Laxman Singh the offence was converted to Section 302 Indian Penal Code. It is the case of the prosecution that appellant, who was arrested on 19.6.94 in persuance to his voluntary disclosure statement (Ex.R 20) got recovered the empty broken bottle from the bushes of `Ker' shrubs about 150 yards from the place of occurrence vide recovery memo, Ex.R 11. After completion of the investigation challan was filed against the appellant and Ganpath Singh for offences Under sections 302 & 323/34 Indian Penal Code before the Magistrate, who in turn committed the case to the learned Additional Sessions Judge. 7. The appellant was charged for the offence Under section 302 Indian Penal Code. He denied the indictment and claimed trial. To prove its case, the prosecution examined as many as 14 witnesses. Appellant Mahendra Singh in his examination Under section 313 Criminal Procedure Code denied the circumstances appearing against him in the prosecution evidence and asserted that he was not present at the place and time of alleged incident and that a false case has been foisted against him. He however did not adduce any evidence in defence. 8. After trial, the learned Sessions Judge acquitted co- accused-Ganpath Singh, but found the appellant guilty Under section 302 Indian Penal Code and sentenced him in the manner indicated above. Hence this appeal. 9. We have heard Shri B.N. Sandhu the learned counsel for the appellant and Shri R.S. Agrawal, the learned Public Prosecutor at length and carefully perused the record of the trial court in extenso. 10. At the very outset, Shri Sandhu has rightly submitted that in view of the consistent and convincing testimony of injured Harlal (PW 8) and the eye witness Bhagwan Singh (PW 1), he does not challenge the factum of the incident as also the injuries sustained by deceased- Laxman Singh. 10. At the very outset, Shri Sandhu has rightly submitted that in view of the consistent and convincing testimony of injured Harlal (PW 8) and the eye witness Bhagwan Singh (PW 1), he does not challenge the factum of the incident as also the injuries sustained by deceased- Laxman Singh. He however, has strenuously canvassed that the appellant had no enmity with the deceased, that he had neither any intention to commit his murder nor he was likely to cause his murder, that the appellant inflicted only one injury by a broken beer bottle, which was neither sufficient in the ordinary course of nature to cause death nor the same was likely to cause death. According to him Laxman Singh died due to toxaemia, which was not the direct result of the injury sustained by him and, as such, the prosecution has miserably faned to bring home offence Under section 302 Indian Penal Code against the appellant. He has submitted that at the most the offence made out against the appellant does not travel beyond Section 326 Indian Penal Code. He has contended that the appellant was arrested on 19.6.94 and since then he is continuously under detention. Thus, he has already suffered sentence for a period of more than two years and ten months. He has submitted that, keeping in view the facts and circumstances of this case, his sentence should be reduced to the period already undergone by him. 11. On the other hand, Shri R.S. Agrawal, the Public Prosecutor has vehemently contended that appellant had deliberately inflicted a thrust blow by broken beer bottle on the abdomen of the deceased, which manifestly reflects his intention to commit murder. He has supported the impugned judgment and reiterated the reasonings given by the learned trial judge. 12. We have given our thoughtful consideration to the rival submissions and carefully scrutinised the evidence recorded in this case. There is not a fringe of evidence to suggest that the appellant had any animosity with the deceased. As per the prosecution case, when the deceased passed through the 'Pulia', where the appellant alongwith co-accused were sitting and consuming liquor, they challenged Laxman Singh, shouted `sale ko maro' and chased him. There is not a fringe of evidence to suggest that the appellant had any animosity with the deceased. As per the prosecution case, when the deceased passed through the 'Pulia', where the appellant alongwith co-accused were sitting and consuming liquor, they challenged Laxman Singh, shouted `sale ko maro' and chased him. Thereafter Laxman Singh alongwith Bhagwan Singh and Harlal returned to the place of incident, where Bhagwan Singh asked the appellant as to why he had run after Laxman Singh (deceased) and that thereupon, the appellant, who had an empty beer bottle with him got enraged, he broke the bottle by hitting it on the road side and thereafter thrust a blow of the said broken bottle on the abdomen of Laxman Singh. Dr. D.C. Jain (PW 13), who examined Laxman Singh on the same day found a lacerated wound 21/2" x 1/2" on the abdomen. The depth of the said wound was found to be about 2" by the said doctor on 17.6.94, when Laxman Singh was being operated. Admittedly, the appellant did not repeat the broken bottle blow to the deceased, which clearly indicates that he did not have any intention to commit the murder of Laxman Singh. As per testimony of PW 13 Dr. M.C. Jain, there was a rupture of 2" of large intestine on the anterior aspect of the discending colon of Laxman Singh from which the faecal matter had come out causing faecal peritonitis resulting to toxemia causing his death. Thus, the cause of death of Laxman Singh was not the direct result of the abdomen injury caused by the appellant. On the other hand, during treatment he developed toxaemia and died on 18.6.94 i.e. two days after the incident. Dr. M.C. Jain also did not mention in post mortem report (Ex.P 27) that injury sustained by deceased was sufficient to cause death in the ordinary course of nature or it was likely to cause death. The skiagram of the chest and abdomen of Laxman Singh also did not reveal any bony injury. Dr. Jain has stated that the injury No. 1 of MLR Ex.R 23 was grievous and caused by sharp edged weapon. In such circumstances, we are of the considered opinion that the prosecution has palpably failed to establish beyond reasonable doubt that the appellant had the intention to commit the murder of the deceased. Dr. Jain has stated that the injury No. 1 of MLR Ex.R 23 was grievous and caused by sharp edged weapon. In such circumstances, we are of the considered opinion that the prosecution has palpably failed to establish beyond reasonable doubt that the appellant had the intention to commit the murder of the deceased. However, from the prosecution case it stands fairly established that the appellant had deliberately inflicted a thrust blow by a broken beer bottle, which had sharp edges, on the abdomen of the deceased, which is a vital part, endangering his life. Thus, it was proved beyond reasonable doubt that the appellant had voluntarily caused grievous injury to Laxman Singh by inflicting broken bottle blow on the abdomen of the deceased and committed offence Under section 326 Indian Penal Code. 13. In Kalu Ram @ Kalu Lal v. The State of Rajasthan, 1992 Cr.L.R. (Raj.) 769 , it was amply proved that the accused appellant had inflicted injuries on the person of the deceased causing an incised wound at the level of lower thoracic & upper lumbar L1 - L2 region over spine, one incised wound over left buttock, another incised wound on face, an incised wound on the right eye brow and an incised wound on the right nasal bridge. His second part of duodenum was found ruptured with abdomen and the same was dipped in dirty faecal matter mixed fluid. The doctor opined that the cause of death was toxaemia and shock as a result of injury to duodenum. A Division Bench of this Court, keeping in view the facts and circumstances, held that the injuries sustained by the deceased were not sufficient in the ordinary course of nature to have cause death. However, keeping in view the nature of injuries sustained by the deceased on the vital part of his body and which were inflicted by the appellant and that those injuries could be conveniently termed as injuries endangering human life and those were thus grievous injuries within the meaning of Section 320 Indian Penal Code and therefore, acquitted the appellant for the offence Under section 302 Indian Penal Code but convicted him for the offence Under section 326 Indian Penal Code. Similar are the facts of the case on hand. 14. Similar are the facts of the case on hand. 14. Therefore, keeping in view the facts and circumstances of the case and the injuries sustained by the deceased and the cause of his death, in our considered opinion, the learned trial judge has committed an error in convicting the appellant Under section 302 Indian Penal Code. However, the offence Under section 326 Indian Penal Code has been successfully brought home against the appellant beyond reasonable doubt. 15. In the premise of the above discussion, we partly allow this appeal and set-aside the conviction and sentence of appellant for the offence Under section 302 Indian Penal Code, but convict him for the offence Under section 326 Indian Penal Code and sentence him to five years R.I. with a fine of rupees one thousand (Rs. 1000/-). In default of payment of fine, the appellant shall further undergo rigorous imprisonment for two months. If the fine is deposited, then the same shall be paid to the legal heirs of deceased-Laxman Singh. Jail Authorities be informed accordingly. *******