JUDGEMENT Dharnidhar Jha and Rakesh Kumar JJ. 1. The solitary appellant, Suresh Mahto, was tried by the learned 1st Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 264 of 1993/24 of 1993 for the charges under Sections 302 and 394 of the Indian Penal Code. By judgment dated 13.8.2003,the appellant was found guilty of committing both the offences. The appellant was heard on sentence under Section 235(2), Cr PC on 16.8.2003 and was directed to suffer rigorous imprisonment for life as also to pay a fine of Rs. 5,000/- for his conviction under Section 302 of the Indian Penal Code, while rigorous imprisonment for seven years and also a fine of Rs. 5,000/- was imposed as sentence upon him for his conviction under Section 394 of the Indian Penal Code. In case the appellant had failed in paying up the fine, the learned trial Judge directed the appellant to suffer rigorous imprisonment for six months under, both counts. The sentences were directed to run concurrently. 2. The appellant brings into question the conviction recorded against him by the learned trial Judge and order of sentence passed upon him consequent upon his conviction. 3. The facts lie in a very narrow compass. In the night of 18.3.1992 the appellant allegedly entered inside the house of Gopal Rawani (PW 5) for committing robbery. In fact, he had picked up a box and was about to leave the house, when the daughter-in-law of the informant namely, Vindhyachal Kuer (PW 1) raised an alarm. The informant rushed inside the house and found the appellant there. He attempted to catch hold of the appellant. The appellant inflicted a knife blow which hit on the chin of Gopal Rawani (PW 5). By that time, Girija Rawani, son of PW5, also came in rushing and attempted to capture the appellant. The appellant pierced the same knife into the stomach of Girija Rawani as a result of which he fell down. His momentum came out of the wound. Thus, the appellant made good his escape. 4. Picking up the commotion, the villagers had, by that time, converged upon the place of occurrence and they tied the wound of the deceased with a gamcha and put him on cot to transport him to Karakat. His momentum came out of the wound. Thus, the appellant made good his escape. 4. Picking up the commotion, the villagers had, by that time, converged upon the place of occurrence and they tied the wound of the deceased with a gamcha and put him on cot to transport him to Karakat. FRom there the deceased was brought to Bikramganj hospital by the villagers by a truck where the deceased was lying unconscious and was being treated when fard began (Ext. 1) of PW 5 was recorded by the police. It was stated by the informant that the occurrence had been witnessed by his daughter- in-law (PW 1) and his daughter Raj Nayan Devi (not examined). After recording the fard bey an (Ext. 1), the same was forwarded to Karakat police station for registering a case and, accordingly. First Information Report (Ext. 3) of the case was registered. 5. Sub-Inspector Arun Kumar, (PW 7) on 18.3.1992, was the Officer-in charge of Karakat Police Station and he took up the investigation himself and in that connection he came to the place of occurrence and inspected the same at village Mishrawaliya. Thereafter, he recorded the statement of Vindhyachal Kuer (PW 1). He found the room in which the occurrence had taken place was made up of earth, and there was a cot lying there. He also found a steel box which was containing some old cloths and silver ornaments. The house was thatched one and some part of it was in dilapidated condition. 6. After inspecting the place of occurrence, PW 7 came to Bikramganj hospital and found that injured Girija Rawani had died. He held inquest upon the dead body and prepared inquest report and thereafter sent the dead body for post-mortem examination to Sasaram. He also recorded the statement of witnesses. He received a copy of the post-mortem examination report and examined other witnesses and family members of the informant. He also received injury report of the informant, Gopal Rawani and finding the material sufficient, sent the present appellant up for trial. 7. The defence of the appellant does not appear from his statement under Section 313 of the Cr PC. He received a copy of the post-mortem examination report and examined other witnesses and family members of the informant. He also received injury report of the informant, Gopal Rawani and finding the material sufficient, sent the present appellant up for trial. 7. The defence of the appellant does not appear from his statement under Section 313 of the Cr PC. However, we find from the suggestion thrown to PW 1, Vindhyachal Kuer, that her husband was a man of criminal antecedent, who was made accused in a case of theft and his enemy had killed him and, further, that the appellant had falsely been implicated. The other defence which appears from the evidence of PW 6 from his cross-examination was that the deceased may have fallen on a peg attached to the earth and on that account he received injury and was killed. 8. In support of the charges eight witnesses were examined by the prosecution, out of whom PW 3 Narendra Kumar Pathak and PW 4 Shivmuni Ravani were declared hostile. PW 1 Vindhyachal Kuer, who was the wife of the deceased and informant, Gopal Ravani, (PW 5) supported the allegation. PW 2 Kameshwar Ravani stated that he heard hulla coming out of the house of the informant and while he was rushing towards the house of PW 5, he found that the appellant was fleeing away from there towards West and he had a chhura in his hand. He has iurther stated that the appellant had stated to PW 2 that if he did get away from his way else, he too will be stabbed and, accordingly, PW 2 gave sufficient room to the appellant to run away. PW 6 Dr. Kameshwar Nath Tiwari had held postmortem examination on the. dead body of the deceased (Girija Ravani) and had prepared a report (Ext. 2). PW 8, Dr. Md. Sarfaraz, had examined both the injured Girija Ravani and Gopal Ravani while he was posted at Bikramganj Hospital and issued injury reports, Exts. 4 and 4/1 respectively. PW 7, SubInspector Arun Kumar, as noted above, had investigated the case. 9. The defence did not examine any witness during the trial. 10. After considering the evidence on record the impugned judgment was passed. 11. 4 and 4/1 respectively. PW 7, SubInspector Arun Kumar, as noted above, had investigated the case. 9. The defence did not examine any witness during the trial. 10. After considering the evidence on record the impugned judgment was passed. 11. We have heard Sri Abhay Kumar Singh, learned counsel for the appellant, who referred to us the evidence of the witnesses and has challenged the finding of guilt as not properly recorded inspite of the fact that one of the inmates of the house was cited as a witness in Ext. 1, namely, Raj Nayan Devi, she had not been examined. Learned counsel submitted that the villagers who took the deceased and the injured to hospital have also not come to support, and, as such, the findings may be bad. Thrust of the argument of the learned counsel was that conviction of the appellant under Section 302 of the Indian Penal Code appears ill founded due to many reasons. One of reasons indicated to us by the learned counsel was that the doctor PW 6 who held post-mortem examination on the dead body of Girija Ravani did not state in his evidence that solitary wound which was found by him was sufficient in the ordinary course of nature to cause death. It was contended that it is a case of solitary blow and intent of the appellant was not to kill rather it was merely to inflict injury which could scare away the deceased or others of his family members for obstructing his escape with picked up article and, as such, he may not have the knowledge also. It was contended that at any rate the learned trial Judge should have convicted the appellant under Section 304 Part-11 of the Indian Penal Code. 12. Shri Ashwini Kumar Sinha, learned Additional Public Prosecutor, in his usual fairness, has submitted that proof of the guilty of the appellant as emerging from the evidence on record appears duly arrived at by the learned trial Judge, but it appears that in case of solitary blow in which the doctor was not certain about the wound being sufficient in the ordinary course of nature to cause death, the learned trial Judge should have considered the conviction of the appellant under Section 304 Part-II of the Indian Penal Code inspite of there being a charge under Section 302 of the Indian Penal Code. 13. 13. We have considered the submission of the learned counsel of both sides in the light of the evidence and we find that evidence of PWs 1 and 5 who are wife and father respectively of the deceased and whose presence at the time of occurrence cannot be doubted in the house, have corroborated each other and thus, the prosecution story. They were subjected to cross-examine from many angles but after going through the evidence of the two witnesses we find that nothing material could be elicited from either of the witnesses as regards creating doubt in their veracity the occurrence and the manner of assault. We may refer to paragraph 10 of the evidence of PW 1 in which she has stated that her husband was wreathing in pain on the ground after he had received the blow with dagger and after that blood had dripped on to the ground. She has further stated that his wearing apparels were soaked with blood and her father-in-law was also bleeding from his injury and the blood had fallen on his cloths also. 14. PW 5, the informant, had stated the same facts on the manner of assault as regards himself or his son, the deceased, in paragraphs 3, 4 and 5 of his evidence. His cross-examination appears done in paragraphs 30, 31 and 32 of the evidence of PW 5. There does not appear much difference between the evidence of the two witnesses. Likewise, the evidence of PW 2, Kameshwar Ravani, to us, also appears lending sufficient assurance to the evidence of PW 1 and PW 5 as may appear from the consideration of his evidence in paragraph 17. The finding of PW 7, Sub-Inspector of Police (ArunKumar), also supports the fact that the occurrence, as alleged by the prosecution had taken place inside the room of the house. The evidence of two doctors specially PW 8, who had firstly examined PW 5, the informant, and his son (deceased) when they were brought to the hospital also corroborates the allegation that a knife had been pierced in the abdomen of the deceased as he had found penetrating wound measuring 3" x 3/4" x upto large intestine on the lower abdomen, which injury in the opinion of PW 8 could be caused by a sharp pointed weapon like knife. Likewise, on examination of PW 5, PW 8 had found sharp cutting wound 2" x 1-1/2" x muscle deep on the chin and just below it. It may be noted that a knife is both sharp pointed and sharp cutting weapon. 15. The evidence of other doctor, PW 6, lends final assurance as regards the cause of death in his evidence on account of having performed post-mortem examination. However, he has not stated in the opinion part of his evidence that the injury was sufficient in the ordinary course of nature to cause the death. 16. Thus, on consideration of the evidence of the witnesses, we come to the conclusion that participation of the appellant in commission of robbery and during that course inflicted injury both upon PW 5 and the deceased Girija Ravani stands established. 17. This brings us to consider as to what offence can be made out under the facts of the case. In Raj Banshi Mahto V/s. State of Bihar, 2008 (3) PLJR 46 , this Court while considering a similar argument as has been advanced before us by Shri Abhay Kumar Singh, learned counsel for the appellant that the facts may not constitute an offence under Section 302 of the Indian Penal Code as the appellant did not have necessary intention to kill but was simply attempting to scare away the deceased or his family members so as to make good his escape with the booty. In that case the accused, who was alleged to have given solitary knife blow to the deceased was simply attempting to elicit some information about the son of the deceased or his whereabouts. After considering the provisions of Sections 299 and 302 of the Indian Penal Code and after having noticed as to what was the import of the two provisions, the argument was finally answered in paragraph 24 of the judgment. Besides, other facts the Court had noticed the opinion of the doctor. In Raj Banshi Mahto also the doctor holding post-mortem examination had not given an opinion that the injury was sufficient in ordinary course of nature to cause the death as appears the evidence in the present case. Besides, other facts the Court had noticed the opinion of the doctor. In Raj Banshi Mahto also the doctor holding post-mortem examination had not given an opinion that the injury was sufficient in ordinary course of nature to cause the death as appears the evidence in the present case. In addition to above, we find that the appellant, who had trespassed inside the house of the informant, was simply attempting to run away with the booty (box) and he was being attempted to be captured either by the informant or his son. The first blow was wielded by the appellant on the informant on his chin. The informant did not make further attempt thereafter, but attempt further to apprehend the appellant was made by his son Girija Ravani (deceased) who by that time had rushed into the house to capture the appellant. The dominant intention, under the above circumstance, which appears to us, working up the mind of the appellant was by all means to get rid of the situation of being apprehended. As such, what could be the intent or purpose of inflicting injury to Girija Ravani appears to us was to ward off the imminent chance of being captured in the process of taking away the theft property. He might on account of being a prudent man, be attributed with the knowledge that the weapon which was as dangerous as it proved to be, if wielded on as important a part as the abdomen of The person, may result in his death. In that view what appears to us is that it may not be a case under Section 302 of the Indian Penal Code. We are of the considered view under the above discussion of the evidence that the appellant could be held up for committing an offence under Section 304, Part-II of the Indian Penal Code. As regards his conviction under Section 394 of the Indian Penal Code, we are not concerned much about it because he has already served out the imprisonment of more than seven years and ten months. The sentences were to run concurrently and we are not going to disturb that direction issued by the learned trial Judge to the appellant. As regards his conviction under Section 394 of the Indian Penal Code, we are not concerned much about it because he has already served out the imprisonment of more than seven years and ten months. The sentences were to run concurrently and we are not going to disturb that direction issued by the learned trial Judge to the appellant. What we wish to direct is that in view of the fact that the appellant has remained in custody for seven years and a bit over ten months, we could direct that he is punished and sentenced to the period he has already served in custody on account of his conviction by converting it from that under Section 302 to Section 304 Part-II of the Indian Penal Code. 18. With the above modification in conviction and sentence upon the appellant, we dismiss the present appeal. As the appellant has served the sentence of the period already undergone, he will be released forthwith, if not wanted in any other case.