JUDGMENT 1. - This is an appeal filed by the State of Rajasthan challenging the order of acquittal passed on 5.10.1978 by the learned Sessions Judge, Sriganganagar in Sessions Case No. 110/77 acquitting the accused-Mahendra Singh for the offence under section 302, IPC. 2. The prosecution story stated briefly is that on 22.9.1977 at about 7.15 in the evening, the deceased-Amrit Lal was drinking water from the tap when accused-Mahendra Singh went to him and starting abusing in relation to his earlier conduct in removing Lohari from the villages. It is then alleged in the first information report that when the deceased-Amrit Lal straightened from the tap after consuming drinking water, he was stabbed by the accused in the stomach and when the witnesses ran towards the deceased, the accused ran away. On the basis of this information, investigation was conducted by the police and the accused was arrested and challaned during the course of sessions trial. The prosecution examined 12 witnesses and two witnesses were examined as Court-witnesses. On appreciation of entire evidence the learned Judge came to the conclusion that the accused is not guilty of any offence and therefore, proceeded to acquit him by the judgment impugned in this appeal. 3. With the assistance of the learned Public Prosecutor and the learned counsel for the accused, we have re-appreciated the evidence and scrutinised the documents reliance on which was placed by both the parties for their respective contentions. 4. On re-appreciation of evidence we have found that there are two eye-witnesses to the incident and the dying declaration of Amrit Lal, deceased, duly recorded by PW 11 Shri R.K. Songara, the then Judicial Magistrate, 1st Class, Sriganganagar and which is executed as Ex. P/14. 5. It was the contention of the learned Public Prosecutor on repreciation of the evidence that the testimony of eye-witnesses PW 2 Jogenderpal and PW 4 Tak Chard is such as is liable to be accepted as there was cross-examination which does not reveal anything to shake their trustworthyness or their credibility as truthful witness. According to the learned Public Prosecutor, the testimony of these two eye-witnesses which is duly corroborated by the injury report submitted by the Doctor as also the dying declaration Ex. P/14 made by the deceased counter towards submission of the Public Prosecutor. According to the learned Public Prosecutor, the testimony of these two eye-witnesses which is duly corroborated by the injury report submitted by the Doctor as also the dying declaration Ex. P/14 made by the deceased counter towards submission of the Public Prosecutor. It was submitted by the learned counsel for the accused that the learned Sessions Judge was right in acquitting the accused. There is nothing on record to prove that the assault was not made by the accused in self-defence of his person and therefore, the judgment of acquittal is proper. 6. In order to appreciate the contentions raised by the rival parties we deem it just and proper to re-appreciate the evidence of the eye-witnesses. PW 2 Jogenderpal is the brother of the deceased-Amrit Lal who was an eye-witness to the entire incident which occurred on 22.9.1977. The witness was naturally present at the site at his own side. He saw the accused approached the deceased near the water tap and he has heard hot exchange between the accused and the deceased. He then stated that he saw when the deceased finished drinking water the accused-Mahendra Singh by a knife stabbed the deceased in the stomach, as a result of which deceased-Amrit Lal shouted "MAR GAYA MAR GAYA" and thereafter accused-Mahendra Singh ran away towards 9 G knife was in his hand. The witness then states that Amrit Lal had pressed his hand on the spot caused to him by the accused. The witness then reached the deceased followed by Tak Chand and they supported Amrit Lal to walk towards his house. However, after walking few steps, Amrit Lal fell down. The witness then went to call his relatives and took the deceased to the hospital where later on the dying declaration of the deceased was recorded in accordance with law. In his chief examination, the witness himself has candidly admitted that he cannot identify the knife now. The witness has been cross-examined. Some questions and answers noted by the learned Sessions Judge in proposition deserve verbatim reproduction? In his chief examination, the witness himself has candidly admitted that he cannot identify the knife now. The witness has been cross-examined. Some questions and answers noted by the learned Sessions Judge in proposition deserve verbatim reproduction? iz'u %& tc ve`r yky ds isV esa pksV yxh Fkh rks vki ogh ls mls xaxkuxj D;ksa ugha ys x;s o 23th th dh rjQ D;ksa ys x;s\ mRrj %& xaxkuxj tkus ds fy;s dksbZ lk/ku cukdj gh rks tkrkA ikl gh m/kj 23th th esa mldk edku Fkk vr% igys mls m/kj ys x;kA Then in relation to the another question the answer of the witness is very forthright. iz'u %& Vsd pUn ds eka&cki dks cqyk;k Fkk ;k ugha\ mRrj %& ugha cqyk;kA bruk le; gh dgka Fkk] ve`r yky dks dkj esa Mkydj ys x;sA 8. The next eye-witness is PW 4 Tak Chand who is the son of the sister of deceased-Amrit Lal, he was present and immediately followed PW 2 to hold the deceased and is witness to the abuses transmitted to the deceased by the accused. He has deposed that the accused stabbed Amrit Lal in their presence and the accused then ran away. We have very carefully scrutinised the cross-examination of this witness and in our opinion, he states every question and has answered it in truthful manner. There is nothing in the cross-examination of this witness to suggest that his deposition cannot be trusted. He has also not questioned in the cross-examination in relation to the alleged defence of the accused. It will be seen, therefore, from the cross-examination of these two witnesses that they are not shaken by what they have stated in this statements.9. There is no suggestion that the assault by the accused was in any retaliation in self-defence. It is for the first time, in the examination under section 313 of the Criminal Procedure Code that the accused has given out the story that he assaulted Amrit Lal because Amrit Lal wanted to cause serious injury to the accused. There is no suggestion that the assault by the accused was in any retaliation in self-defence. It is for the first time, in the examination under section 313 of the Criminal Procedure Code that the accused has given out the story that he assaulted Amrit Lal because Amrit Lal wanted to cause serious injury to the accused. From a claim that is made by the accused in his statement under section 313 Cr.P.C. one thing is obvious that the accused does not deny the assault made by him with knife on the person of Amrit Lal and consequently the only question which remains whether assault was in retaliation and for self-defence of the accused or was a murderous assault by the accused.10. PW 8 Dr. Rajendra Kumar Gupta has deposed that he was posted on 22.9.1997 as Medical Jurist in the General Hospital of Sri Ganganagar and deceased Amrit Lal was admitted in the hospital in Male Surgical B Ward in the presence of the Doctor who was on duty on that day. It is this witness who has sent information to the police regarding the admission of the medical case in hospital. He deposed that he informed the police about the condition of the injured who was serious but he was in a fit condition to make a statement. Then the witness deposed about the postmortem conducted by him on 24.9.1977 at about 11.00 a.m. He has deposed that the injury on the person of Amrit Lal was found sufficient in the ordinary course of nature to cause death because of injury to vital organ like spleen. The testimony of this witness, therefore, proves that Amrit Lal met homicidal death and the injury caused to him was sufficient in the ordinary course of nature to cause death.11. Ex. P/14 is dying declaration of the deceased as recorded by the police on their arrival on the scene of offence. The scrutiny of this document reveals that the injured Amrit Lal has stated with clarity as to what occurred to him. He has stated the verbal altercation that took between him and accused and the statement thus corroborates the eye-witnesses account of PW 2 & PW 4. This statement was recorded by the police immediately when they came to the hospital and recorded an offence under section 307 IPC after taking statement of the deceased which is now proved as Ex. He has stated the verbal altercation that took between him and accused and the statement thus corroborates the eye-witnesses account of PW 2 & PW 4. This statement was recorded by the police immediately when they came to the hospital and recorded an offence under section 307 IPC after taking statement of the deceased which is now proved as Ex. P/14 as will be seen from the action taken, statement made by the police on this stage exhibit itself.12. Dying declaration is in the legal form. The dying declaration as required by law was then recorded in presence of Judicial Officer PW 11 Shri Songara. There is no material difference between these two statements. The statement has been duly signed by the Magistrate and he has deposed as PW 11 that the statement is correctly recorded.13. On our re-appreciation of this entire evidence on record, we are, therefore, firmly of the view that the learned Judge has erred in acquitting the accused. The prosecution has proved the existence of previous enmity between the accused and the deceased. In his examination under section 313 of the Cr.P.C., accused himself admits of the enmity and claims that he was first assaulted by the deceased who tried to kill him and it was only in self-defence that he stabbed the deceased who was the angerously assailant. There is thus, no denial of the fact that the statement of accused has occurred and from the cross-examination of the two witnesses who are eye-witnesses is obvious and there is no suggestion to them regarding Amrit Lal being angerously or Amrit Lal tried to kill the accused. It is obviously as an after thought that this defence was put up in his examination under section 313 of the Cr.P.C., it is thus proved beyond reasonable doubt by the prosecution that the accused has assaulted the deceased Amrit Lal with knife and stabbed on his stomach. It is proved by the medical evidence that the deceased suffered a stab injury in the stomach which was sufficient in the ordinary course of nature to cause death. As a Court witness Doctor who performed surgery on the deceased Amrit Lal is also examined and he has also deposed that the injury was such as was sufficient in the ordinary course of nature to cause death. As a Court witness Doctor who performed surgery on the deceased Amrit Lal is also examined and he has also deposed that the injury was such as was sufficient in the ordinary course of nature to cause death. In such circumstances, we have no hesitation in holding that the order of acquittal is unsustainable in law. The accused is responsible for causing homicidal death of Amrit Lal. That takes us to question of what exactly is the offence committed by the accused when he has assaulted the deceased in his stomach by his knife. It is proved on record that the single injury is caused by knife and that injury was such as was sufficient in the ordinary course of nature to cause death. It is also proved on record that there was hot exchange between the accused and the deceased immediately prior to the assault. It is proved, therefore, that the accused was enraged by the conduct of the deceased which he considered unwarranted interference with his personal life and it is therefore, possible that the accused was enraged by the conduct of the deceased and therefore, stabbing in his stomach. It is possible that he never intended to cause death that he stabbed the deceased at the same time. It is true that the injury caused by the accused was such as was likely to cause death and the knowledge of such likelihood is existing in the mind of the accused. In our opinion, therefore, the accused in these circumstances is guilty of culpable homicide not amounting to murder and is liable to be punished under section 304 Part-II of the IPC and that take such important questions of sentence.14. It is true that the prosecution has proved beyond reasonable doubt the guilt of the accused and we have found him guilty under section 304 Part-II of the IPC equally true is the fact that the appeal against acquittal is pending for last 20 years and the accused is at liberty for all these years. The pendency of the appeal is due to reasons beyond control both of the prosecution as also of the accused. Merely because the appeal is pending for all these years is no reason to get a murderous assault go unpunished. The delay, therefore, will be ignored. The pendency of the appeal is due to reasons beyond control both of the prosecution as also of the accused. Merely because the appeal is pending for all these years is no reason to get a murderous assault go unpunished. The delay, therefore, will be ignored. In our opinion, it is necessary as a deterrent to meet the punishment that an accused found guilty of any criminal offence is punished in accordance with law. It must be known that no crime shall be unpunished whatever the time lapsed between the commission of offence and such punishment. Taking into consideration all these circumstances, we are of the firm view that the interest of justice will be met if the accused is now sentenced to suffer rigorous imprisonment for a period of 10 years for the offence of culpable homicide not amounting to murder as punishable under section 304 Part II of the IPC.15. In the result, the appeal is partly allowed to.the extent that the conviction under section 302 IPC is altered to 304 Part-II IPC. The accused-Mahendra Singh is hereby convicted of the offence under section 304 Part-II IPC. He is hereby sentenced to undergo rigorous imprisonment for ten years. His bail bonds are hereby cancelled. He shall surrender himself immediately, failing which he be arrested to put him to suffer imprisonment awarded to him.Appeal partly allowed. *******