KUMAR RAJARATNAM, J. ( 1 ) THE xx additional sessions judge, Bangalore by his judgment dated 8-6-1994 in S. C. No. 169 of 1992 convicted the accused-respondent for an offence under Section 326 of the Indian Penal Code. The accused was sentenced to undergo r. i. For a period of three years and to pay a fine of Rs. 1,000/- in default to undergo s. i. For a period of two months. ( 2 ) THE prosecution case, in brief, is that on 2-3-1992 at 11. 15 p. m. In front of muneshwara swamy temple on the night of sivarathri there was a brawl between p. ws. 1 and 3 on one side and the accused on the other side. At that time the deceased chose to intervene and try to pacify both sides. During the scuffle, a. 1 stabbed the deceased. ( 3 ) THE eye-witnesses were p. ws. 1, 6 and 7. The motive appears to be that the accused were playing cards on the verandah of the temple and the deceased and others warned the accused not to play cards. The deceased, seeing the scuffle between P. W. 3 and the accused, tried to pacify both parties. In the exchange of words, the deceased was stabbed with a knife. ( 4 ) P. W. 4 is the doctor, who conducted the post-mortem examination, found the following external injury on the deceased. "a stab wound over the front of neck obliquely situated 3 cms. Above the right sterno clavicular joint, measuring 2. 5 cms. X 0. 75 cms. With clean cut edges. Upper outer is pointed and lower inner end is blunt with an abration extending from its lower end measuring 4 cms. X 0. 25 cms". he opined that the deceased died due to shock and haemorrhage as a result of the stab injury. Ex. P. 4 is the post-mortem report. ( 5 ) AS stated earlier, the trial court convicted the accused 1 for an offence under Section 326 of the Indian Penal Code and sentenced him to undergo three years r. i. And also imposed a fine of Rs. 1,000/ -. The trial court further noticed that the accused 1 was in custody for two years and 3 months when the judgment was delivered. 1,000/ -. The trial court further noticed that the accused 1 was in custody for two years and 3 months when the judgment was delivered. The trial court acquitted a. 2 to a. 4 since there were no materials to show that they participated in the occurrence. ( 6 ) NO appeal has been preferred as against a. 2 to a. 4. So we are dealing with a 1 in this appeal. The trial court committed an error in holding that because no opinion was given by the doctor that the injuries are sufficient in the ordinary course of nature to cause death wrongly convicted the accused 1 only under Section 326 of the Indian Penal Code. ( 7 ) THERE is no doubt a duty cast on the doctor to state that the injuries caused on the deceased are necessarily fatal or is sufficient in the ordinary course of nature to cause death or is likely to cause death. But, if the doctor fails to state that the injury is sufficient in the ordinary course of nature to cause death, the court can always by looking at the nature of injuries hold that the injury was sufficient in the ordinary course of nature to cause death. In this case, from the nature of injuries and from the opinion given by the doctor the death was due to shock and haemorrhage as a result of the stab injury. The court can hold that the injury is sufficient in the ordinary course of nature to cause death. Therefore, the trial court was in error in the facts and circumstances of this case in convicting the accused 1 under Section 326 of the Indian Penal Code. ( 8 ) CONSIDERING the facts and circumstances of the case and taking into account that the P. W. 3 was under the influence of alcohol and also taking into account that there was a scuffle and a quarrel ensued, it would be appropriate to allow the state appeal as against a. 1 and convert the conviction from one under Section 326 of the Indian Penal Code to one under Section 304 part ii of the Indian Penal Code. ( 9 ) FROM the facts and circumstances of the case, it appears that the overt act of the accused 1 was with the knowledge that it is likely to cause death but without any intention to cause death. ( 10 ) THE learned counsel for the accused 1 relied on the following pronouncements of the Supreme Court. 1. Masumsha hasanasha musalman v state of maharashtra; 2. United India insurance company limited v rajendra singh and others; 3. Bhera v state of rajasthan; 4. Ramchandra ohdar v state of bihar. ( 11 ) ALTHOUGH the accused 1 was sentenced by the trial court for three years r. i. , when the state appeal was admitted nbw was issued and the accused was to be dealt with in accordance with Section 390 of the Criminal Procedure Code. Unfortunately, the accused was not enlarged on bail but committed to prison. He had no legal assistance and even the trial court did not inform him about his right to move bail. He was straightaway sent to judicial custody. ( 12 ) THE learned amicus curiae Mr. M. b. Ramachandra has brought to the notice of this court that the accused 1 is in custody even to this day. In all he is in custody for seven years and 5 months. It is a pity that the trial court did not deem fit to enlarge the accused on bail under Section 390 of the Criminal Procedure Code. ( 13 ) IT would be appropriate to state that when an appeal against acquittal is admitted and nbw is issued under Section 390 of the criminal procedure code, a duty is cast on the trial court to commit the accused to bail on his undertaking to be present as and when required by the appellate court and on such conditions that the trial court may deem fit. ( 14 ) NO doubt the trial court has power to commit the accused to prison. But, this power should be used sparingly and for adequate reasons. After all, the accused has been acquitted by a competent court. ( 14 ) NO doubt the trial court has power to commit the accused to prison. But, this power should be used sparingly and for adequate reasons. After all, the accused has been acquitted by a competent court. Therefore, it is the duty of the trial court in an appeal against acquittal when nbws are issued under Section 390 of the Criminal Procedure Code to commit the accused to bail unless for reasons recorded in writing that the accused is not entitled to bail for the reasons to be set forth in the trial court's order. This is particularly so, when the accused cannot afford to engage a lawyer when he is brought to the trial court under Section 390 of the Criminal Procedure Code. ( 15 ) IN this case, nobody told the accused that he has the right to move bail under Section 390 of the Criminal Procedure Code and the accused still continues to be in custody, after the appeal against acquittal was admitted till the matter was heard by us. As stated earlier the accused has been in custody for seven years and 5 months and still continues to be in custody while the sentence of the trial court was only for 3 years. ( 16 ) IN the facts and circumstances of this case, we allow the appeal and set aside the judgment of the trial court and convict the accused for an offence under Section 304 part ii of the Indian Penal Code and sentence him for the period already undergone. The accused shall be set at liberty forthwith. We place on record the assistance rendered by Mr. M. b. Ramachandra, amicus curiae and determine his fees at Rs. 1,000/ -. --- *** --- .