JUDGMENT 1. The accused-appellant Narayan Lal has filed the present criminal appeal from jail under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 11.2.2002 recorded by the learned Additional District & Sessions Judge (Fast Track) No. 2, Kota in Sessions Case No. 25/2002 by which the appellant has been awarded imprisonment for life for the offence under Section 302 IPC along with fine of Rs. 1,000/-, in default of payment of which to further undergo three months simple imprisonment.Brief facts for the disposal of the present appeal are that a parcha-bayan (Ex.P-9) of deceased Yogesh was recorded in MBS Hospital, Kota by PW-12 Kailash Chand, ASI on 26.1.2002 at about 11.45 a.m. In the parcha-bayan, it was alleged that three days prior to the incident at about 12.00 O'clock in the night, accused Dhiru @ Cylinder in the drunken state was creating scene in front of his house. Dhiru @ Cylinder was asked by the mother of the deceased not to create scene and closed the door of the house but Dhiru @ Cylinder pushed the door and also rang the bell of the house. It is also alleged that after some time Dhiru @ Cylinder left the place. On the other day, deceased along with his mother went to the house of Dhiru @ Cylinder and made complaint to his father. It is further alleged that on the day of incident i.e. on 26.1.2002, while the deceased along with his mother was attending the function organised in St. Dayanand School on the occasion of Republic Day at about 10.30 a.m., Dhiru @ Cylinder along with Narayan (present accused appellant) came at the place of function in the school having knife and katar in their hand. Narayan with the intention to kill him inflicted first knife blow on his left shoulder and another blow in his armpit and when the deceased turned to save himself, Dhiru @ Cylinder inflicted a blow which caused injury at the left side of abdomen. On receiving injuries, the deceased shouted. His mother and other persons came there. On seeing them, the accused ran away. It is also alleged that the incident was seen by the persons who were attending the function. 2. On the basis of above parcha-bayan, FIR No. 42/2002 was registered at police station Mahaveer Nagar, Kota on 26.1.2002 for the offence under Section 307/34 IPC. His mother and other persons came there. On seeing them, the accused ran away. It is also alleged that the incident was seen by the persons who were attending the function. 2. On the basis of above parcha-bayan, FIR No. 42/2002 was registered at police station Mahaveer Nagar, Kota on 26.1.2002 for the offence under Section 307/34 IPC. During the course of treatment, Yogesh died on 30.1.2002, therefore, section 302 IPC was also added. One of the accused Dhiru @ Cylinder being minor, his case was tried by the Juvenile Justice Board and after finding him guilty of the offence under Section 302 IPC, a punishment of fine of Rs. 5,000/- was imposed upon him. The fine imposed upon him was deposited by him on 4.9.2009, the day on which he was convicted by the Principal Magistrate, Juvenile Justice Board, Kota. During the course of investigation, post-mortem was conducted on the dead-body of deceased Yougesh. 3. PW-2 Dr. Ashok Mundra, has conducted post-mortem and prepared post-mortem report (Ex.P-2). In the opinion of the doctor, the cause of death was due to septicemic shock as a result of ante-mortem injury to Jejunum sufficient to cause death in the ordinary course of life. 4. After conducting usual investigation, charge-sheet was filed for the offence under Section 302/34 IPC before the concerned Magistrate and thereafter case was committed to the court of Sessions and from there it came for trial before the learned Additional Sessions Judge (Fast Track) No.2, Kota who framed charge under Section 302/34 IPC against the accused-appellant on 21.3.2002 to which the accused denied and claimed trial. 5. The prosecution in support of its case examined as many as 14 witnesses and also got exhibited 11 documents (Ex.P- 1 to Ex.P-11). 6. After close of the prosecution evidence, statement of the accused under Section 313 Cr.PC. was recorded on 28.8.2002 to explain the circumstances against him. In his explanation, the accused denied the prosecution case and took the plea of alibi. No evidence in defence was produced. 7. Learned trial court after hearing final submissions in the matter convicted and sentenced the accused as indicated above. Hence, the accused has preferred the present appeal from jail. 8. We have heard learned amicus curiae appointed by the court for the accused-appellant and the learned public prosecutor for the State. 9. No evidence in defence was produced. 7. Learned trial court after hearing final submissions in the matter convicted and sentenced the accused as indicated above. Hence, the accused has preferred the present appeal from jail. 8. We have heard learned amicus curiae appointed by the court for the accused-appellant and the learned public prosecutor for the State. 9. It has been the contention of the learned amicus curiae that the evidence of the prosecution led in the present case is full of contradictions and is not reliable. It is contended that it is quite strange that no independent witness was arranged (sic) as eye witness though the incident is alleged to have taken place at the time of function in the school on 26.1.2002. It is also contended that two alleged eye witnesses namely PW-4 Smt. Geeta Sharma and PW-6 Abdul Haleem have narrated the incident in different manner which contradicts the statements of each other, therefore, their evidence is of no help to the prosecution. It is also contended that as per the prosecution story coupled with the statement of alleged eye witnesses PW-4 Smt. Geeta Sharma and PW-6 Abdul Haleem, it would appear that the present case is one where conviction was not liable to be recorded under Section 302 IPC, at best present case is one where accused was liable to be convicted under Section 304 Part I or Part II IPC. 10. On the other hand, learned public prosecutor has contended that on the basis of parcha-bayan (Ex.P-9) and on the basis of statement of two witnesses, namely; PW-4 Smt. Geeta Sharma and PW-6 Abdul Haleem, the prosecution has been able to prove its case beyond reasonable doubt, therefore, the conviction recorded under Section 302 IPC by the learned trial court is liable to be maintained. It is contended that minor contradictions here and there would not change the substance of the prosecution case as the incident has taken place in the day time in school. 11. We have carefully considered the submissions made before us. 12. In the present matter, following points require consideration: (i) Whether the death is homicidal ? (ii) Whether the judgment of the trial court recording conviction under Section 302 IPC needs to be maintained or it requires to be altered from section 302 IPC to one under Section 304 Part I or 304 Part II IPC ? POINT NO. 12. In the present matter, following points require consideration: (i) Whether the death is homicidal ? (ii) Whether the judgment of the trial court recording conviction under Section 302 IPC needs to be maintained or it requires to be altered from section 302 IPC to one under Section 304 Part I or 304 Part II IPC ? POINT NO. (1):PW-2 Dr. Ashok Mundra, in his statement recorded on 27.6.2002, has stated that he performed autopsy on the dead-body of deceased Yogesh on 30.1.2002 and found three ante-mortem injuries, namely; (1) incised wound 1 x ¼ cm, muscle deep on back of left shoulder, (2) stitched wound 1 cm long on left side of chest, partially lower, (3) stitched wound 1½ cm on left side of abdominal wall. He has also stated that there were two more stitched wounds on account of operation conducted while the deceased was admitted in the hospital. In his opinion, the cause of death was ante-mortem injury to Jejunum sufficient to cause death in the ordinary course of nature.Thus, in view of the statement of Dr. Ashok Mundra PW-2 and the post-mortem report Ex.P-2 which clearly stated that the cause of death was the result of the injuries sustained by the deceased, therefore, the point no. 1 is answered in affirmative.POINT NO. 2:In the parcha-bayan the deceased has stated that three days prior to the incident, one of the accused, namely Dhiru came at their house at about 12.00 O'clock in the night and created scene and when co-accused was asked not to create scene and door of the house was closed, the same was pushed and bell was also rung and thereafter, co-accused namely Dhiru @ Cylinder went away and on 26.1.2002 he along with present appellant came at about 10.30 a.m. in St. Dayanand School where a function was being organised on the occasion of Republic Day. The appellant and co-accused were armed with sharp edged weapons like knife and katar and they inflicted injuries on the person of the deceased. The above fact has been established by the prosecution evidence led in this case. 13. PW-4 Smt. Geeta Sharma, in her statement recorded on 28.6.2002 by the trial court, has specifically stated that Narayan inflicted injury on the shoulder of Yogesh (deceased) by knife. The above fact has been established by the prosecution evidence led in this case. 13. PW-4 Smt. Geeta Sharma, in her statement recorded on 28.6.2002 by the trial court, has specifically stated that Narayan inflicted injury on the shoulder of Yogesh (deceased) by knife. She has also stated that Dhiru @ Cylinder inflicted injury by sharp edged weapon on the left side of abdomen of the deceased. She has further stated that she saw the incident as deceased was also present there and was watching the programme which was being conducted there. She has also stated that three days prior to the incident she also made a complaint to the father of Dhiru @ Cylinder of his conduct. 14. PW-6 Abdul Haleem, in his statement recorded on 29.6.2002 by the trial court, has stated that he saw the incident and accused-appellant Narayan and Dhiru @ Cylinder were having knife and katar in their hands and by the sharp edged weapons which the accused-appellant and Dhiru @ Cylinder were having in their hands, inflicted injuries on the person of deceased Yogesh. He stated that he saw the incident while he was passing through the school side on his bicycle. 15. From the above two statements, it appears that the incident took place on 26.1.2002 in the school and from there the deceased was taken to the police station and to the hospital. 16. PW-6 though has not specifically stated as to which of the accused inflicted injury on the abdomen or on the shoulder of the deceased but in view of the statement of PW-4 Smt. Geeta Sharma and the parcha-bayan Ex.P-9, there appears no doubt in our minds that the accused-appellant inflicted injury on the shoulder of the deceased and at his back also. 17. The learned trial court in the judgment at page 13 in para 20 has stated that the accused-appellant was responsible for the fatal blow which was caused by him on the left side of armpit, therefore, convicted the accused-appellant under Section 302 IPC. We do not find from the injury report Ex.P-8 and post-mortem report Ex.P-2 that the accused-appellant was responsible for the fatal blow which resulted in death after four days of the incident because of septicemia. In the injury report Ex.P-8, injury no.2 is on the left shoulder 1x0.2 (5) cm muscle deep caused by sharp edged weapon. We do not find from the injury report Ex.P-8 and post-mortem report Ex.P-2 that the accused-appellant was responsible for the fatal blow which resulted in death after four days of the incident because of septicemia. In the injury report Ex.P-8, injury no.2 is on the left shoulder 1x0.2 (5) cm muscle deep caused by sharp edged weapon. Injury No.3 is stitched wound 1.50 cm on the left side of chest, muscle deep is the cause of death because by this injury jejunum was cut and due to septicemia developed lateron, the deceased died. 18. PW-4 Smt. Geeta Sharma in her statement has specifically stated the accused Dhiru @ Cylinder caused injury by sharp edged weapon (katar) on the left side of abdomen. This injury has not been assigned to accused Narayan. If that be so, the conclusion drawn regarding fatal blow by the trial court is not based on proper appreciation of evidence. As per the statement of PW-4 Smt. Geeta Sharma, the accused-appellant inflicted blow on the shoulder and on the back side of chest. 19. PW-2 Dr. Ashok Mundra in his statement has stated that injury no. 3 which has cut the small intestine and caused injuries in jejunum was sufficient in the ordinary course of nature to cause death. Thus, as per the statement of PW-2 Dr. Ashok Mundra and as per post-mortem report Ex.P-2, it is established that ante-mortem injury to jejunum caused death of the deceased because septicemia developed subsequently and this injury has been caused by co-accused whose case was tried by the Juvenile Justice Board, Kota. 20. The other evidence in the present case i.e. of statement of investigating officer, recoveries, site inspection note and sending the sealed articles to FSL etc. are not of much significance as the same have been discussed in detail by the trial court, therefore, the same are not being discussed here. 21. Now, the question is, as to whether the learned trial court has correctly recorded conviction of the accused-appellant under Section 302 IPC or the same requires to be altered to section 304 Part I or 304 Part II IPC. 22. In the case of Kesar Singh and another v. State of Haryana, 2008 (2) WLC (SC) Cri. 249 , the Hon'ble Supreme Court in paragraphs 20 and 21, regarding the distinction between the knowledge and intention, has held as under : "20. 22. In the case of Kesar Singh and another v. State of Haryana, 2008 (2) WLC (SC) Cri. 249 , the Hon'ble Supreme Court in paragraphs 20 and 21, regarding the distinction between the knowledge and intention, has held as under : "20. We must keep in mind the distinction between knowledge and intention.. Knowledge in the context of Section 299 would, inter alia, mean consciousness or realisation or understanding. The distinction between the terms 'knowledge' and 'intention' again is a difference of degrees. An inference of knowledge that it is likely to cause death must be arrived at keeping in view the fact situation obtaining in each case. The accused must be aware of the consequences of his act. 21. Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specific end which the human mind conceives and perceives before itself. This was discussed extensively in Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32 , stating : We may note at this state that 'intention' is different from 'motive' or 'ignorance' or 'negligence'. It is the 'knowledge' or 'intention' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of these expressions as used in these provisions... ....The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end." Kenny in "Outlines of Criminal Law" (17th Edition at page 31) has observed : Intention : To intend is to have in mind a fixed purpose to reach a desired objective; the noun 'intention' in the present connection is used to denote the state of mind of a man who not only foresees but also desires the possible consequences of his conduct. Thus if one man throws another from a high tower or cuts off his head it would seem plain that he both foresees the victim's death and also desires it : the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes. It will be noted that there cannot be intention unless, there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed. Again, a man cannot intend to do a thing unless he desires to do it. It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it. That is to say he desires the lesser of two evils, and therefore, has made up his mind to bring about that one. Russell on Crime (12th Edition at Page 41) has observed : "In the present analysis of the mental element in crime the word 'intention' is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims." It can thus be seen that the 'knowledge' as contrasted with 'intention' signifies a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. He shapes his line of conduct so as to achieve a particular end at which he aims." It can thus be seen that the 'knowledge' as contrasted with 'intention' signifies a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, 'intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore in the case of 'intention' mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact." 23. In the instant case, Ex.P-9 parcha-bayan was recorded wherein it was specifically stated that two accused including appellant came at the time when function of Republic Day in the school was going-on and inflicted blows by knife and katar on the person of the deceased. As per statement of PW-4 Smt. Geeta Sharma, it appears that the injury at the abdomen was inflicted by co-accused Dhiru @ Cylinder. The injuries which have been assigned by PW-4 Smt. Geeta Sharma to accused-appellant are on the shoulder and at the back side of chest. The above two injuries are not sufficient in the ordinary course of nature to cause death. It is further important to take note that the deceased did not die soon after the incident but while the deceased was under treatment, after a couple of days, he died because of septicemia. In the above circumstances, from the nature of injuries on the person of deceased and injuries assigned to the accused-appellant, it can only be gathered that the accused-appellant was having knowledge that his act might result into the death of the deceased. By no stretch of imagination the act of the accused-appellant can be said to be one from which intention of the accused to kill the deceased be gathered because the appellant inflicted injuries on the shoulder and at the back of the deceased. In the opinion of the doctor also, the above two injuries were not the cause of death. By no stretch of imagination the act of the accused-appellant can be said to be one from which intention of the accused to kill the deceased be gathered because the appellant inflicted injuries on the shoulder and at the back of the deceased. In the opinion of the doctor also, the above two injuries were not the cause of death. If that be so, in our opinion, the accused appellant was not liable to be convicted under Section 302 IPC but was liable to be convicted under Section 304 part II IPC. 24. In the case of Bhagwan Bahadure v. State of Maharashtra, 2008 (1) WLC (SC) Cri. 49 , it has been observed by the Hon'ble Supreme Court that it cannot be said as a rule of universal application that whenever one blow is given Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered". 25. In the case of State of Punjab v. Tejinder Singh & another, AIR 1995 SC 2466 , in the facts where two persons inflicted Gandasa blows on the deceased, the altercation had already taken place four days prior to the incident over the boundary line of the plots of the parties, the accused persons came heavily armed shouting that the deceased should not be spared at a point of time when his wife had brought breakfast for him and he had gone to the hand pump to bring water in a pitcher, the Hon'ble Supreme Court has observed as under : In view of our above findings we have now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34, IPC. It appears from the evidence of PW-4 and PW-5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed.by the appellant is one under Section 304 (Part I), IPC and not under Section 302, IPC." 26. In the case of Jayraj v. State of Tamil Nadu, 1976 (2) SCC 788 , it has been observed that in a case where the death occurred after nine days of the incident, it cannot be held to prove that the injury was sufficient to cause death in the ordinary course of nature. 27. In view of the fore-going discussion, the answer to the point no.2 is that the judgment of conviction recorded against the accused-appellant under Section 302 IPC is not liable to be maintained and instead he is liable to be convicted and sentenced for the offence under Section 304 part II IPC. 28. In view of the fore-going discussion and answer to the point nos. 1 and 2, this appeal is partly allowed. The judgment of conviction of accused appellant Narayan Lal under Section 302 IPC awarded by the trial court vide its judgment dated 11.2.2002 is altered to one under Section 304 Part II IPC and he is sentenced to the period already undergone by him in jail. It has been informed by the learned amicus curiae and it also appears from the warrant of commitment to jail of accused-appellant that the accused is in jail since 30.1.2002 till date, therefore, he has already undergone more than eight years sentence without including remission in jail. The accused be set at liberty forthwith if not required in any other case.Appeal Partly Allowed. *******