JUDGMENT 1. - The limited controversy in the present appeal pertains to nature of offence and therefore, the limited facts that need notice reveal that Shankar Sindhi for whose murder the appellants were tried died on 9.3.1999 in an occurrence that took place at 10.15 P.M.. An F.I.R. with regard to the incident was lodged on the same date at 11.45 P.M. by S.H.O. Shri Swaraj Mal Meena PW-1. In the F.I.R. Ex.P-1 Mr. Swaraj Mal Meena, got recorded that he alongwith Ramesh Chand FC 1376, Ramesh Chand 1207, Heera Lal ASI, Jeep driver proceeded to the place of incident in connection with daily diary report No. 541 and after visiting the place of incident came to police station and the situation was like that they reached to the place of incident Rangbari scheme pursuant to telephonic information and behind the drain and they reached before the house No. 1-F-33 from where they saw two persons whose clothes were stained with blood were carrying the person while pulling him through the broken wall of the drain and when they asked about their names, one person revealed his name as Raju Punjabi son of Chet Singh by caste Punjabi age 21 years, resident of near the statue of Indira Gandhi, Gobariya Bawadi, Kacchi Basti and other one revealed his name as Mukesh Saxena son of Sushil Kumar, by caste Kayasth, age 27 years, resident of 3-B-21, Mahavir Nagar III and they also revealed the name of injured person Shanker Sindhi and when he and Sub-inspector and other persons of police party checked him, they found him fully unconscious and noticed one sharp injury on the thigh of his right leg and large quantity of blood was oozing out of the wound. Because of the need of immediate medical aid, he, Sub-Inspector alongwith the police party and the two persons, namely Raju Punjabi and Mukesh Saxena took the injured in the police jeep to MSS hospital and with the aid of police party, the injured was taken on the stretcher to the duty doctor and the duty doctor after examination revealed that this person had died. The dead body of the deceased was kept in the, mortuary and for keeping surveillance police constable Narendera 276 was left over there with proper instructions. He, S.I. alongwith police party and suspected persons Raju Punjabi and Mukesh Saxena came back to police station. 2. The dead body of the deceased was kept in the, mortuary and for keeping surveillance police constable Narendera 276 was left over there with proper instructions. He, S.I. alongwith police party and suspected persons Raju Punjabi and Mukesh Saxena came back to police station. 2. Swaraj Mal Meena further stated that It was clear from the injuries of Shanker Sindhi that he was killed and because of the blood stained clothes of Mukesh Saxena and Raju Punjabi, it was clear that these two persons had committed the crime so they were taken to police station for interrogation. The case from the above facts appears to be of 302/34 Indian Penal Code., so the case No. 85/1999 was registered in the above sections and the investigation was started. Copies of the F.I.R. and special report were issued as per rules. 3. The prosecution examined Dr. P.P.C. Vyas - PW-13, who stated that on 10.3.1999 at 10.15 A.M. he had conducted post mortem on the dead body of Shanker Sindhi. Shanker Sindhi had died 24 hours before his post mortem was conducted. The doctor proved post mortem report as Ex.P-29. On the dead body of Shanker Sindhi, the doctor found following four injuries: "1. Incised wound 2 x 1 cm. x skin deep with clotted blood, placed obliquely on right thigh middle ⅓rd anteromedially. Margins of the wound are cleancut, regular and well defined. 2. Stab incised wound 3 x 11/2 cm. x muscle to (Torn) deep with clotted blood placed obliquely (one line Torn) anteromedially at middle ⅓rd. 3. Abrasion x 1/2 cm. on left knee cap. 4. Abrasion 11/2 x1/2 cm on left elbow joint anteriorly." 4. In the opinion of the doctor the death was because of shock as a result of injury to femoral artery with excessive hemorrhage. This injury was sufficient to cause death in ordinary course of nature and the same was ante-mortem in nature. This injury to femoral artery was result of external injury No. 2. 5. It is significant to mention here at this stage that in so far as injury No. 2 is concerned, the same has been opined by the doctor as a result of injury No. I and injuries No. 3 and 4 are abrasions of a small dimensions 1 x 1/2 cm. and 11/2 x 1/2 cm. on knee cap and elbow anteriorly. 6. and 11/2 x 1/2 cm. on knee cap and elbow anteriorly. 6. Swaraj Mal Meena, who was examined as PW-1 deposed in tune with the F.I.R. lodged by him. Shankar, who was examined as PW-2 stated that on the day of occurrence he was sitting in the room of Hajari. Murari and Hajari were also sitting with him. When they were talking to each other Shankar Singh told that he was going to drain for easing himself. Thereafter they heard a noise coming from the side of drain to save him. Five persons went towards the drain, where Shankar Sindhi was lying. He was put in auto and taken to hospital. Prosecution proved recovery of knife Ex.P-24 from appellant Raju @ Jasvinder. The recovery of knife on disclosure statement made by the appellant Raju @ Jasvinder was proved by Radhey Shyam FW-9 and Sugan Kumar PW-I 1. The knife was sent for analysis to Forensic Science Laboratory. The knife was found to be stained blood of 0' group. Pent of deceased, clothes of the appellants and that of the deceased as also blood that was taken from the spot were sent for analysis to Forensic Science Laboratory. The same were also found to be stained with blood of 0' group. 7. Magistrate Jagmohan Sharma, who was examined as FW-19 proved statement Ex.F-22 recorded by him under section 164 Criminal Procedure Code. of Shri Imrit Lal @ Imrit Singh, who however, could not be produced in the witness box as he was not traceable. There is no need to make mention of other evidence led by the prosecution. 8. Mr. Suresh Sahni, learned counsel representing the appellants in Criminal Appeals No. 58 and 59/2002, filed by Mukesh and Raju respectively contends that even if the prosecution case is believed in its entirety, the appellants cannot be pinned down for an offence under section 302 Indian Penal Code. and at the most the offence committed by them would fall under section 304 Fart 11 Indian Penal Code. 9. We have given our anxious thoughts to the only contention as noted above but in the facts and circumstances of the present case we find same to be having merit even though half way through. It is indeed a case of single injury and that too on non-vital part of the body. 9. We have given our anxious thoughts to the only contention as noted above but in the facts and circumstances of the present case we find same to be having merit even though half way through. It is indeed a case of single injury and that too on non-vital part of the body. Injury No. 2 in the post-mortem report has been described by the doctor to be the result of injury No. 1, whereas injuries No. 3 and 4 are abrasions of small dimensions and could well be caused when Shankar Sindhi was being dragged by the appellants at the time when Swaraj Mal Meena alongwith other officials had seen them. The injury though, therefore, may be one but it was a serious in nature. The doctor while describing injury No. I mentioned in the post-mortem report as also in the evidence that the same on dissection had shown that would track extended down wards medially and after piercing subcutaneous tissues and also piercing m lially border of quadriceps femoris muscle of right thigh at middle ⅓rd, where a cut wound size 21/2 x 1 cm. was present, large amount of blood clots present in right thigh muscles. Wound track further extending upto middle portion of right femoral artery, where a cut wound of length 5 cm. is present transversely in femoral artery. 10. This finding has been given on the dissection of injury No. 2 which as mentioned above, was result of injury No. 1. The injury is quite serious and has indeed ultimately caused death. The appellants in our view, whereas, may not be certain that the injury caused by them would result in death but surely while causing such an injury they knew that they were likely to cause death of Shanker Sindhi. The appellants even though had no intention to kill, at the same time they must have known that they were inflicting bodily injury as was likely to cause death as a consequence of which death did happen. In considered view of this Court the case wound not be covered under section 302 Indian Penal Code. but it will surely not be covered under section 304 Part II Indian Penal Code. as well. The appellants in our view thus deserve to be held guilty for an offence under section 304 Part I Indian Penal Code. Ordered accordingly. 11. In considered view of this Court the case wound not be covered under section 302 Indian Penal Code. but it will surely not be covered under section 304 Part II Indian Penal Code. as well. The appellants in our view thus deserve to be held guilty for an offence under section 304 Part I Indian Penal Code. Ordered accordingly. 11. Consequently the order of conviction and sentence recorded against the appellants under section 302 and 302 read with section 34 Indian Penal Code would be set-aside. They would be, as mentioned above, held guilty for offence under Section 302 (Sic 304) Indian Penal Code part I Interest of justice would be served if the appellants are sentenced to undergo Rigorous Imprisonment for a period of 8 years, as also to pay fine of Rs. 500/- as ordered by the trial Court and in default of payment of fine to further undergo Simple Imprisonment for two months. 12. The appeal is partly allowed in the manner fully indicated above.Appeal partly allowed. *******