JUDGMENT 1. - These appeals are directed against the judgment and order dated 22.4.1995 passed by the Sessions Judge, Dungarpur, convicting the appellants-Harish and Amra, for the offence under section 302 read with 34 I.P.C. and sentence each of them to imprisonment of life find to pay the fine of Rs. 2,000 /- in default further under go one month's simple imprisonment. 2. The prosecution case in brief is that on 27.3.1994 PW 1 Kalu lodged a report at police out post Deval stating inter alia that on 26.3.1994 at about 9.00 p.m. he heard the outcry of his brother Walla and his wife PW 2 Gomani and found that they were on the way to their house, behind the house of Boda, returning from village Deval after marketing. PW 4 Laxman and PW 8 Subhash also reached on the spot. Appellant Harish, Hoorji and Amra were shouting. " nq'eu bl jkLrs tk jgs gSA vkt mudh gksyh dj nsxsaa " He also stated that Hoorji was armed with lathi and Harish with sharp-edged weapon. He further stated that Amra caught hold of hands of Walla and Harish stabbed with sharp edged weapon like knife in the back. Walla, fell down. They tried to rescue them but Hoorji and Amra assaulted them. Thereafter accused persons ran away. Walla died on the spot. Many villagers assembled on the spot. He also stated there was litigation between deceased-Walla and accused persons. This information was presented before PW 10 Udai Singh at Police Station Sadar, Dungarpur. Police registered a case for the offence under sections 302, 341, 323 read with 34 I.P.C. and proceeded with the investigation. After usual investigation, police led charge sheet against 3 appellants i.e. Harish, Amra and Hoorji for the aforesaid offence. 3. The accused persons denied the charges and claimed trial. The prosecution in support of its case examined 10 witnesses. The appellants in their statements under section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against the appellants proved, and, hence convicted both the appellants as noticed above. The trial Court, however acquitted accused-Hoorji. 4. Assailing the conviction it is contended by Shri A.K. Rajvanshy, learned counsel for the appellants that the entire case hinges on the testimony of PW 2 Gomani, who cannot said to be a witness of sterling worth. He pointed out certain infirmities in her statement. The trial Court, however acquitted accused-Hoorji. 4. Assailing the conviction it is contended by Shri A.K. Rajvanshy, learned counsel for the appellants that the entire case hinges on the testimony of PW 2 Gomani, who cannot said to be a witness of sterling worth. He pointed out certain infirmities in her statement. He has also submitted that PW 1 Kalu, PW 4 Laxman, and PW 8 Subhash are not the eye-witnesses as their presence has been excluded by PW 2 Gomani. In the alternative, it is submitted that as the appellant-Harish, has caused a simple injury at the back of the deceased Walla, it cannot be inferred that he intended to commit his murder. Thus, his conviction cannnot travel beyond the offence under section 304 Part-I or Part-II of the Indian Penal. Code. On the other hand, learned Public Prosecutor has supported the judgment of the Trial Court. 5. We have scanned, scrutinised and analysed the prosecution evidence and considered the rival contentions. PW 6 Dr. Navratan Regar has stated that he conducted post-mortem of the dead body of Walla and noticed following injuries on his person :WOUNDS POSITION, SIZE, NATURE:- (i) Stab wound : 21/2 x 3/4 x 8 cm. At the level of 2nd vertebral column in Lt. lumber region. (ii) Lacerated wound : 1 x 1 /2 x 1/2 cm x 4cm. Laterally to Mandiblar side. BRUISE POSITION, SIZE, NATURE:- (i) Contusion : 5 x 3 cm. On Rt. Shoulder joint. (ii) Contusion : 21/2 x 1 /2 cm. Rt. side of neck. (iii) Contusion : 3 x 1 cm. On stomach. He has proved the Post Mortem Report Ex. P/10. He has stated that Injury No. 1 has been caused by sharp-edged weapon. On opening of kidneys, he found stab wound on the kidney. He noted injuries on kidneys : Stab wound Medially & postero laterally middle third of left kidney & Renal vessels are also injured. Profuse blood clots beneath peritoneum are also present. He has also stated that said internal injury was corresponding to the Injury No. 1. In his opinion cause of death of Walla s/o Nanka was due to haemorrhagic shock due to Lt. kidney & venal vessels injury. Thus, the prosecution has established that Walla died of homicidal death. He has also opined that Injury No.1 was sufficient in the ordinary course of nature to cause death. 6. In his opinion cause of death of Walla s/o Nanka was due to haemorrhagic shock due to Lt. kidney & venal vessels injury. Thus, the prosecution has established that Walla died of homicidal death. He has also opined that Injury No.1 was sufficient in the ordinary course of nature to cause death. 6. PW 1 Kalu has stated that the deceased was his younger brother. He has also stated that brother Walla and his wife Smt. Gomani were returning from village Deval and when they reached in front of the house of Bada, the accused persons, namely, Bada, Amra, Hoorji, Harish and Phoola etc. surrounded them. Outcry of wife of Walla attracted them. He along with his brother PW 4 Laxman reached on the spot. Hoorji stuck a lathi blow on the back of Laxman. He also stated that Walla was finished before his arrival on the spot. 7. The statement of PW 4 Laxman and PW 8 Subhash are the almost on the same line. All the three witnesses have admitted that they reached on the spot after the Walla was finished. PW 2 Smt. Gomani has also admitted that PW 1 Kalu, PW 5 Laxman and PW 8 Subhash arrived on the spot after Walla was finished. Thus, all these three witnesses cannot be termed as eye-witnesses. 8. PW 2 Smt. Gomani is wife of the deceased Walla. She has stated that after making some purchasing from the Deval village market, they were returning the house and when they reached in front of the house of Bada, accused-Amra, Hoorji, Harish Laxman, Rama, Panna, Phoola and Bada etc., arrived there. Accused Amra caught hold of the hands of Walla and Harish stabbed knife in the back, she also stated that Bada caused injury by knife on the face of Walla. Hearing her cries, her brother-in-law Laxman also arrived there. His brother-in-law was also assaulted by Hoorji, Parma, Rama and Bada by lathies. Subsequently, the wife of Bada hurled stone which hit on the chest of her husband. He fell down and died on the spot. She also stated that her brother- in-law Laxman, Kalu and her son Subhash also arrived on the spot. Thereafter accused persons ran away. She also stated that accused persons took up quarrel on the ground that leg of their cattle (she-goat) was fractured by them. He fell down and died on the spot. She also stated that her brother- in-law Laxman, Kalu and her son Subhash also arrived on the spot. Thereafter accused persons ran away. She also stated that accused persons took up quarrel on the ground that leg of their cattle (she-goat) was fractured by them. In cross-examination, she admitted that after the incident was over, his brother-in-law and son arrived there to whom she narrated the incident. Nothing substantial is elicidated to discredit the testimony of this witness. 9. As regards accused-Amra is concerned PW 2 Smt. Gomani has stated that Amra had caught hold of hands of Walla and then Harish stabbed knife in his back. She has also stated that Bada inflicted knife injury on the face of the deceased Walla. There is no injury of sharp-edged weapon on the face of the dead body. Thus, this part of the statement of Smt. Gomani is at variance at the medical evidence. Police has not laid charge-sheet against Bada. Thus, statement of Smt. Gomani cannot be believed as against Amra as there is no corroboration of her statement from any other indepedant evidence. 10. As far as appellant-Harish is concerned Mst. Gomani has categorically stated that he stabbed knife in the back of Walla. Her statement finds corroboration from the F.I.R. as well as medical evidence. She was travelling along with deceased Walla, and therefore, her presence cannot be doubted. We do not find any reason to disbelieve the statement of Mst. Gomani. Thus, in our opinion, she is a witness of sterling worth and conviction of Harish can be sustained in her testimony. 11. Turning to the nature of offence a single injury on the back of deceased Walla is attributed to Harish and there is no repetition of the act. There is nothing to show that the appellant-Harish, had taken undue advantage in committing crime or acted in unusual manner. In these circumstances, it cannot be said that appellant intended to commit murder of Walla. However, his act can be clothed with the knowledge. Thus, act of the appellant-Harish, falls under section 304 Part-I, Indian Penal Code. 12. Consequently, both the appeals are partly allowed. The conviction of the appellants-Harish and Antra under section 302/34 I.P.C. is set aside. Appellant Amra is acquitted of the offence under section 302 read with 34 I.P.C. He is on bail. Thus, act of the appellant-Harish, falls under section 304 Part-I, Indian Penal Code. 12. Consequently, both the appeals are partly allowed. The conviction of the appellants-Harish and Antra under section 302/34 I.P.C. is set aside. Appellant Amra is acquitted of the offence under section 302 read with 34 I.P.C. He is on bail. His bail bonds stand discharged. Appellant Harish is convicted under section 304 Part-I of the Indian Penal Code. He is in jail for about last 7 years. The ends of justice would be met if the sentence is reduced to already under gone. Appellant Harish shall be released forthwith if not required in any other case.Appeal partly allowed. *******