MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 17. 6. 93 passed by the learned Special Judge SC/st Act, Udaipur convicting the appellant Dalu of offence u/s 302 I. P. C. and sentenced him to imprisonment for life and to pay a fine of Rs. 1000/- and in default of payment to further undergo one month's R. I. The appell- ant has also been convicted of offence u/s. 452 I. P. C. and sentenced to one year's R. I. and to pay a fine of Rs. 500/- and in default of payment to further undergo 15 days' S. I.
(2.) THE prosecution case as set out during the trial is as follows: On 3. 3. 92 the appellant Dalu alongwith his mother Smt. Bhanwari and sister Smt. Lachhu went to the kirana shop of deceased Pokhar, where the witnesses PW/2 Gegraj and PW/8 Rama were also sitting. THE appellant Dalu demanded a sum of Rs. 200/- from the deceased Pokhar which were advanced by him. THE deceased asked him to collect the amount after two days. THE appellant Dalu, his mother and sister started quarreling with deceased Pokhar. All the three were pushed out from the shop. THE accused Dalu alleged to have asked Pokhar to come out of the shop, when he came out, the appellant Dalu plunged chhurri below the nevel, on account of which, Pokhar fell down. Hearing cries of Pokhar, large number of people collected there. THE brother of the deceased PW/1 Mohan Lal also reached on the spot. He found that his brother Pokhar was lying on a `chabutri'. THE Dhoti was drenched in the blood. PW/2 Gegraj and PW/8 Rama had caught the appellant Dalu. PW/1 went to the police station Dabok and lodged the F. I. R. of the incident. On this information, police registered the case of offence under Sections 302 and 452 I. P. C. and proceeded with the investigation. After usual investigation, police laid the chargesheet against the three accused persons namely the appellants Dalu, Smt. Bhanwari and Smt. Lachhu of offence under Sections 302 and 452/34 I. P. C. All the accused persons denied the charges levelled against them. The prosecution in support of the case examined 11 witnesses. The accused persons in their statement under Sec. 313 Cr. P. C. denied the correctness of the evidence appearing against them. The learned Judge analysing the evidence convicted the appellant Dalu of offence under Sections 302 & 452 I. P. C. and sentenced as noticed above. The learned Judge however acquitted Smt. Bhanwari and Lachhu. We have heard Mr. H. L. Kela, learned counsel for the appellant and the learned Public Prosecutor. We have scaned the prosecution evidence PW/10 Dr. Devendra Singh Rao has stated that he conducted the post-mortem of the dead body of Pokhar. He found the following injury on his person: Stab wound vertical 5. 0 x 2. 5 cm x 9. 0 cm. deep directed posteriorly & upward on Rt. inquinal region at mid point. 6. 0 cm. laterally to root of penis. The wounde is deep & injury to iliac vessel present. The blood is present at the site. He has proved the injury report Ex. P/27. In his opinion, the cause of death was "shock as a result of internal heamorrhage, as a result of stab injury lower post abdoman injury to Rt. iliac vessels. " The prosecution has examined PW/2 Gegraj, PW/4 Mangilal, PW/8 Rama and PW/11 Nanda as eye witnesses. PW/2 Gegraj has stated that on 3. 3. 92 he had gone to the shop of Pokhar for purchasing `biri'. While he was purchasing `biri', the accused Dalu, Smt. Bhanwari & Lachhu arrived there and demanded Rs. 200/- from Pokhar. Pokhar stated that he was not having money with him at the moment and, therefore, he was not in a position to give the money and he will repay the same day after to- morrow. On this, all the three persons started quarrelling with Pokhar. They assaulted him. All the three accused persons were pushed out from the shop. The appellant Dalu asked deceased Pokhar to come out of the shop. When he came out, he (appellant) plunged `chhurri' below the navel of Pokhar. The other witnesses PW/4 Mangilal and PW/11 Nanda also came out of the shop. The statement of other eye witnesses namely: PW/4 Mangilal, PW/8 Rama and PW/11 Nanda is almost in the same line. It is contended by the learned counsel that these witnesses were inside the shop and they could not have witnessed the incident. We find no substance in the contention. The site plan shows that it was a small shop and they could have witnessed the incident from the shop. The statement of these witnesses is corroborated by the medical evidence. Nothing has been elicited from the cross-examination to discredit their testimony. Thus, they have been rightly held reliable witnesses.
(3.) IT is next contended by the learned counsel that only a single injury has been inflicted by the accused and, therefore, it cannot be said that he intended to kill Pokhar. Thus, it is not the case of murder but of culpable homicide not amounting to murder. Learned counsel has placed reliance on the decision of Division Bench of this court in Bhanwar Singh vs. State of Rajasthan (1 ). We have read the said judgment. The fact of this case is very close to the fact of the present case. The evidence shows that the occurrence was the result of trivial incident. The injury has been caused on the lower part of the abdoman. This also shows that the appellant did not intend to cause that particular injury. In these circumstances, the appellant can at the most be clothed with knowledge that such a injury may cause death in ordinary course of nature. Thus, taking all the circumstances into consideration, we are of the opinion that the appellant is guilty of culpable homicide not amounting to murder, punishable under Sec. 304 Part II I. P. C. and not under Sec. 302 I. P. C. We accordingly, partly allow this appeal. The conviction of the accused appellant is altered from Sec. 302 I. P. C. to Sec. 304 Part II I. P. C. The appellant Dalu is in jail since the date of his arrest i. e. 25. 03. 1992. Thus, he has undergone the sentence for more than eight years. The sentence of the appellant is reduced to the period already undergone. The appellant Dalu @ Dalulal S/o Heerji shall be released forthwith, if not required in any other case. .;