JUDGMENT 1. - The accused appellant Dinesh was tried alongwith one Satya Narain accused by the Court of Sessions Judge, Rajsamand for offences under Sections 302, 341,324, 302/34, 324/34 I.P.C. By the judgment dated 17.1.1998 the learned Sessions Judge after trial has acquitted the accused Satya Narain and convicted the accused appellant under Sections 302 and 324 I.P.C. The accused was sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- and in default to further undergo one year imprisonment under Section 302 I.P.C. Under Section 324 I.P.C. the accused was sentenced to one year imprisonment and to pay a fine of Rs. 500/- and in default to further undergo three month imprisonment. The charge under section 341 I.P.C. was, however, not found proved against the accused appellant. 2. Being aggrieved by the aforesaid conviction and sentence recorded by the learned Sessions Judge, Rajsamand, the present appeal has been filed by the accused appellant before this Court. 3. According to the prosecution case on 8.9.1994 the deceased Babloo alias Liladhar alongwith Bhupesh P.W. 3 and Satya Narain P.W. 6 were going to their house in Nathdwara via Chopati Chauraha via Naya Bazar. On their way Satya Narain stayed at the shop of Pradeep Panwala and Bhupesh and Babloo went towards Vranda Hotel, when they reached near Vranda Hotel then Bhupesh stayed to ease himself and Babloo proceeded towards his house. After some time shouts of Babloo were heard. He was asking for being saved then Bhupesh Joshi went there. He saw that there was a wound on the abdomen of Babloo and Dinesh had a blood stained knife. After seeking Bhupesh Dinesh accused ran away towards Mohangarh. Though Bhupesh tried to chase him but he could not catch hold of the accused. Babloo was taken to the hospital where he was treated. 4. Learned counsel for the accused appellant has not contested the factum of occurrence. However, learned counsel for the appellant stressed that the occurrence took place on 8.9.1994 and the death of the deceased had occurred on 16.9.1994 and in this light the argument of the learned counsel for the appellant is that no offence under Section 302 I.P.C. can be made out against the accused appellant. However, learned counsel for the appellant stressed that the occurrence took place on 8.9.1994 and the death of the deceased had occurred on 16.9.1994 and in this light the argument of the learned counsel for the appellant is that no offence under Section 302 I.P.C. can be made out against the accused appellant. He has drawn the attention of the Court towards an endorsement made on the bed head ticket of the deceased Ex.R 11 that the deceased is being shifted from the Hospital for further treatment at Ahmedabad at their own risk. 5. Learned counsel further stressed that the deceased was operated on 8.9.1994 in the General Hospital, Udaipur and from General Hospital, Udaipur the deceased was taken to Ahmedabad for treatment at their own risk. The injury inflicted on the deceased was not of such a nature which could result into the death of the deceased. The condition of the deceased was improving. But suo moto when the deceased was shifted from Udaipur to Ahmedabad against the medical advise on their own risk then the act of the accused cannot be said to be a direct act responsible for causing the death of the deceased. In this back-ground the conviction of the accused appellant under Section 302 I.P.C. is bad according to the learned counsel for the appellant. 6. Learned Public Prosecutor has stated that no doubt the incident had occurred on 8.9.1994 and the death of the deceased has occurred nearly after 8 days from the date of occurrence i.e. 16.9.1994. But the when the accused had caused an injury on the vital part of the body then he has committed the act of causing death of the deceased. 7. We have heard the learned counsel for the appellant as well as the learned Public Prosecutor for the State and have also perused the record. 8. It was against the medical advise but for better treatment the deceased was shifted to Ahmedabad on 15.9.1994. At Ahmedabad the death occurred on 16.9.1994 i.e. after 8 days of the occurrence. Obviously there was anxiety of the well wishers of the deceased to give best treatment and medical help available at Ahmedabad. Perhaps the deceased was not ready to be shifted. It can very well be said that, had he not been shifted to Ahmedabad, death would not have been caused. Obviously there was anxiety of the well wishers of the deceased to give best treatment and medical help available at Ahmedabad. Perhaps the deceased was not ready to be shifted. It can very well be said that, had he not been shifted to Ahmedabad, death would not have been caused. In any case the death having occurred after 8 days of the incident it cannot be said that the death was the direct consequence of the injury inflicted by the accused to the deceased. May be because of the callous attempt and lack of medical care that the death has occurred. Therefore, in this back-ground it would not be safe to convict the accused appellant under Section 302 I.P.C. Instead the accused appellant can be convicted under Section 307 I.P.C. for committing attempt to murder. 9. Consequently, the appeal is partly allowed, the conviction of the appellant is converted from Section 302 I.P.C. to Section 307 I.P.C. He is in custody since 26.9.94 and the period of custody roughly comes to 4 years and few months which after adding remission etc. will come to more than five years. In this back-ground we think that the period already undergone would be sufficient to meet the ends of justice. Therefore, he is sentenced under Section 307 I.P.C. to the sentence already undergone by him. The sentence awarded under Section 324 I.P.C. has already been undergone by the accused and, therefore, the accused has already served out the sentences awarded to him. He is in jail, therefore, he may be released forthwith if not required in any other case.Appeal Partly Allowed. *******