JUDGMENT 1. 1. The appellant was indicted before the learned Sessions Judge, Dausa, in Sessions Case No. 54/1995 for having committed murder of Bhorilal. The learned Sessions Judge, Dausa, found the appellant guilty and vide his judgment dated June 7, 1996 convicted and sentenced the appellant as under 1. U/s. 302 IPC to suffer life imprisonment and a fine of Rs. 1,000/-, in default to further undergo six months rigorous imprisonment. 2. U/s. 4/25 to suffer one year rigorous imprisonment and a fine of Rs. 500/-, in default to further undergo 3 months rigorous imprisonment. Both the sentences were directed to run concurrently. 2. As per the prosecution story the appellant inflicted a 'Knife' (Chhurra) blow on the right arm pit of Bhonrilal. Initially a case under section 307 IPC was registered but after Bhonri Lal succumbed to injury on February 5, 1995, investigation commenced under section 302 IPC by the Police Station. Lalsot on the basis of written report (Ex. P/2) that was lodged by informant Ramcharan on February 1,1995. Dead body of the deceased was subjected to post-mortem. Statements of witnesses under section 161 Cr.RC. were recorded, appellant was arrested and the knife allegedly used in the commission of crime was seized at the instance of the appellant. On completion of investigation, charge-sheet was laid. In due course the case came up for trial before the learned Sessions Judge, Dausa. Charges under section 302 IPC and 4/25 of the Arms Act were framed against the appellant, who denied the charges and claimed to be tried. As many as 13 witnesses were examined by the prosecution in support of its case. In the statement recorded under section 313 Cr.RC. the appellant claimed innocence. No witness in defence however, was produced. The learned trial Judge, on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. We have heard the rival submissions and closely scrutinised and evaluated the material on record. 4. Evidently the appellant inflicted only one injury with the knife on the person of the deceased, Bhonrilal,@ Bhonria was examined before his death on February 1,1995 vide injury report (Ex.P./11) and he sustained the following injury:- 1. 3. We have heard the rival submissions and closely scrutinised and evaluated the material on record. 4. Evidently the appellant inflicted only one injury with the knife on the person of the deceased, Bhonrilal,@ Bhonria was examined before his death on February 1,1995 vide injury report (Ex.P./11) and he sustained the following injury:- 1. "Incised wound of size 6x2 cms x deep oblique and slightly curved placed over back of chest left side near mid line 3 cms from centre of mid line toward left side with fresh bleeding with margins are clean cut, regular, well defined chest lower ⅓ part." 5. As per post mortem report of deceased Bhonrilal the cause of death was syncope as a result of injuries to spleen and left side diaphragm which were sufficient to cause death. A look at the cross-examination of Dr. RC. Vyas, PW7 demonstrates that the deceased was operated upon before his death and his spleen was removed. 6. From the evaluation of record the facts situation that emerges from the record may be deduced as under (i) The appellant inflicted only one injury and did not repeat the same; (ii) The incident took-place on February 1, 1995 and the deceased died on 05.02.1995; and whereas the deceased died on 5.2.95, and (iii) The deceased was operated upon before his death. 7. It is contended by the learned counsel for the appellant that even if the prosecution evidence is accepted on the face value, it does not reflect that the appellant had any intention to kill the deceased, and the appellant cannot be held guilty under section 302 IPC. 8. Per contra the contention of the learned PR is that the appellant had intentionally caused the injury and he was rightly convicted under section 302 IPC. 9. We have given our thoughtful consideration to the rival submissions. It is well settled that for an offence to fall under the category of murder (i) there must be bodily injury; (ii) the accused must have intended that particular injury; and (iii) that bodily injury must be sufficient in the ordinary course of nature to cause death where a case falls under either of the following classes, it is within the ambit of section 304 Part I IPC. (i) When the case falls under one or the other classes of section 300 IPC but is covered by the exceptions to that section; (ii) Where the injury caused is not the higher degree of likely-hood which is covered by the expression" sufficient in the ordinary course of nature to cause death" but it is of a lower degree of likely-hood generally spoken of as an injury" Likely to cause death" and the case also does not fall under Clause (2) of section 300. 10. Clause secondly appended to section 300 IPC deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused. The mental attitude here is two fold. There is first the intention to bodily harm and next there is the subjective knowledge that death will be likely consequence of the intended injury. 11. In the case on hand as already noticed, the appellant inflicted only-one knife blow on the left side of the arm pit of the deceased and he did not repeat the same. The nature of injury was such that the deceased was alive till February 5, 1995. The deceased was operated upon before his death and his spleen was removed. Thus, we can impute only this much intention to the appellant that the injury inflicted by him on the vital part of the body of the deceased was likely to cause death and this act of the appellant comes within the mischief of section 304 Part I and not under section 302 IPC. 12. In view of the above discussions, we allow the appeal of the appellant in part. We set-aside the conviction and sentence awarded to the appellant under section 302 IPC and instead we convict him under section 304 Part I IPC and sentence him to suffer 10 years rigorous imprisonment and fine of Rs. 500/-, in default he has to further suffer 3 months rigorous imprisonment. We however, maintain the conviction of the appellant awarded under section 4/25 of the Arms Act but direct that both the sentences shall run concurrently. 13. The appeal stands disposed of as indicated above.Appeal disposed of accordingly. *******