K.D. Sharma, J.
1. The is an appeal filed by the State of Rajasthan under Section 417 Old Cr. P.C. against the judgment of the learned Sessions Judge, Sriganganagar dated 29. 7.70, by which Jagdish and Vinay Kumar accused were acquitted of the offences punishable under Sections 147, 304 part I read with Section 149 IPC. and Mahendra Singh was acquitted of the charges under Sections 157 and 304 part I, IPC. but convicted of an offence under Section 304 pert II, I.P.C. Likewise, Narendra was acquitted of the offences under Sections 304 part I read with Sections 149 and 147 I.P.C. but was convicted under Section 323 I.P.C only As Mahendra Singh and Narendra were below 21 years of age and were not previous, convicts they were not sentenced to imprisonment end were released on probation under Section 6 of the Probation of Offenders Act, upon furnishing personal bonds of Rs. 5000/- and Rs. 500/- with one surety in the like amount respectively with stipulation to appear and receive sentence whenever called upon to do so during a period of three years and in the meantime to keep peace and be of good behaviour. Aggrieved by the order of acquittal the State preferred an appeal against Mahendra Singh, Ninda alias Narendra, Vinay Kumar alias Billa and Jagdish, hut the appeal was summarily dismissed Vinay Kumar against all the aforesaid respondents except Mahendra Singh vide order of this Court dated 9.9.71. Hence, the appeal filed by the State is restricted only to the acquittal of Mahendra respondent under Sections 304 part I and 147 I.P.C Before dealing with this appeal, we thick it necessary and convenient to state the brief facts of the prosecution case as narrated by Sakti Singh, brother of the deceased in his First Information Report, which was lodged by him with the police on 29.11.67 at police station, Sriganganagar. It was alleged in the First Information Report that on 29.11.67, Sakti Singh accompanied by other students had gone to college ground in the morning, as it was N.C.C. day. When the prizes were distributed in the college ground, Sakti Singh was talking with a student, who was sitting by hit side. Ninda alias Narendra accused also was sitting in the front line. Ninda asked Sakti Singh and the student not to talk to each other and immediately thereafter, abused Sakti Singh in a foul manner and kicked him on his right eye. This led to a quarrel between the two but other students intervened and Sakti Singh started for taking refreshment along with his companions in the S.D. College, When he and his associates were passing by the tide of the octroi(sic)pon, Ninda alias Narendra, Vinay Kumar alias Billa and Mahendra and other three or four students met them in the way. Sakti Singh's brother Paviter Singh, Bhupendra Singh and Jaskaran Singh also came there for taking him to his house, as they apprehended that scuffle might not take place. When Sakti Singh and his companions including Paviter Singh, Bhupendra Singh and Jaskaran Singh proceeded further then all the accused along with their three or four associates formed an unlawful assembly having a common object to kill Sakti Singh and party and in prosecution of the said common object of the unlawful assembly, all of them assaulted Sakti Singh and his companions. Mahendra respondent struck a blow on the stomach of Paviter Singh with a knife while Narendra inflicted a blow on his back with a hockey stick and then Billa caught hold the body of Pavitra Singh and other accused gave him kicks and fist blows and openly said that he would be killed. Sakti Singh was also slapped by the brother of Prakash. An attempt was made to rescue him by Jagjeet Singh, Bhupendra Singh and Jaskaran Singh, who were eye witnessing the occurrence. In the course of such attempt, Bhupendra Singh received a hockey blow on his body. Sakti Singh and his companions raised hue and cries and all the accused ran away from there while leaving Pavitra Singh in an injured condition. Pavitra Singh was immediately removed from the place of occurrence to the hospital, wherein he was admitted and died after three days Dr. Shiv Kumar Sharma examined the body of Pavitra Singh when the latter was alive and found the following external injuries on it:
1. Punctured wound 1' x 1/2' x abdominal cavity deep in the right side of the abdomen below the costal margin and 1 1/2' right to the mid line directed downwards and outwards.
2. Lacerated wound 1' x 1' x 1/8' on the postero-lateral aspect of the left arm.
2. Injury no. 1 was caused by sharp weapon and vas designated at grievous by the doctor. Injury no. 2 was simple in nature and was caused by blunt weapon. The duration of the injuries was within one day. Dr. S.K. Sharma performed operation on Pavitra Singh and found that his liver was punctured The liver vas repaired and spunj stones pieces were inserted and the abdomen was closed but Pavitra Singh died on 2.12.67 at 1.45 a.m. It will not be out of place to mention that dying declaration of the deceased was recorded on 29.11.67 by Magistrate 1st Class, Ganganagar on the advice and in the presence of Dr. S.K. Sharma. After the death of Pavitra Singh, this very doctor performed post-mortem examination over the dead body and on dissection of the body, observed as follows:
Right lung congested and bleeds on dotting. Left lung congested and bleeds on cutting Right side of the heart full of blood and left side empty. The abdominal cavity Is full of blood The diaphram has been punctured. The peritoneum has been punctured. Stomach contained gas and water. The omentum has been punctured. Small In(sic)estines contained gas and water. Large intestines contained foecal matter. Transverse column has been punctured. The liver has been punctured through and through Bladder is full. The scrutum was swollen and (sic)yrum came out on cutting.
3. The cause of death in his opinion was due to internal haemorrhage and shock.
4. Shakti Singh and Bhupendra Singh also were medically examined by Dr. S.K. Sharma as to the injuries received by them. The doctor found the following injuries on the bodies of Sakti Singh and Bhupendra Singh:
1. Contusion 2' x 3/4' on the outer aspect of the right eye.
2. Abrasion 1' x 1' an the dorsum of the left foot. Both injuries were simple and caused by blunt weapon.
1. Contusion 6' x 1' on the left of the abdomen. The injury was simple In nature and caused by blunt weapon.
6. Shri Bansi Ram S.I. on the basis of the First Information Report, took up usual investigation into the matter. Shri Bansi Ram S.I. went to the place of occurrence and prepared a site plan and a site inspection memo In the presence of Motbirs and arrested Mahendra respondent and the other co-accused and after collecting other necessary evidence in the case, filed a charge-sheet against Mahendra respondent and other co accused in the court of Magistrate 1st Class, Ganganagar, who after holding an enquiry preparatory to commitment, committed the respondent and the other co-accused to the court of Sessions Judge, Sriganganagar for trial under Sections 147, 304 Part I and 304 Part I read with Sections 149 and 323 I.P.C. The learned Sessions Judge tried the respondent and the other co-accused for the offence and found Mahendra respondent and Narendra co-accused guilty of the offences under Sections 304 Part II and 323 I.P.C. respectively and instead of sentencing them to imprisonment, gave them the benefit of Section 6 of the Probation of Offenders Act, as stated above.
7. We have carefully perused the record and heard Mr. M.D. Purohit, Public Prosecutor for the State and Mr. O.C. Chatterjee, learned Counsel for Mahendra Singh respondent.
8. The only contention put forward before us by Mr. M.D. Purohit in this appeal is that the learned Sessions Judge committed ah error bf law in convicting Mahendra Singh respondent under Section 304 Part II I.P.C. inspite of the fact that the prosecution succeeded in proving beyond reasonable shadow of doubt that respondent intended to cause such bodily injury to the vital Part of the victim as was likely to cause his death According to the submission of Mr. M.D. Purohit, the respondent (sic)subbed the deceased in abdomen with a knife without any lawful excuse and, therefore, he could atleast be credited with an intention to cause such bodily injury as was likely to cause his death but the learned Sessions Judge did not consider this aspect of the case and wrongly held on conjectural grounds that the injury was caused to the abdomen with the mere knowlege that it was likely to cause the death of the deceased.
9. Mr. O.C. Chatterjee, on the other band, urged that it transpires from the prosecution evidence itself that the deceased was trying to catch told of the knife of Mahendra Singh and to snatch it from his hand but the blow fell on the abdomen of the deceased in the course of snatching According to the submission of Mr. O.C. Chatterjee, the trial Judge was justified in these circumstances to draw an inference that the respondent had no intention to kill the deceased or to cause such bodily injury as was likely to cause his death. In support of his above contention, he relied upon the two following authorities of toe Supreme Court: Laxman Kalu Nikalje v. The State of Maharashtra : 1968CriLJ1647 and Shankar v. State of Madhya Pradesh : 1979CriLJ1135 . We have gone through the authorities of the Supreme Court and considered the rival contentions. At the out-set, we may observe that there is ample reliable evidence of eye witnesses on the record that Mahendra Singh respondent indicted a single blow with his knife on the abdominal region of Pavitra Singh deceased, which caused a punctured wound 1'' x 1/2' x abdominal cavity deep on the right side of the abdomen below the costal margin and 1 1/2' tight to the mid line directed downwards and outwards. The result of this injury was that the liver of the deceased was punctured through and through & his peritoneum and omentum also were found punctured by Dr. S.K. Sharma upon post mortem examination. In the opinion of the doctor, the deceased died on account of internal heamorrhage and shock caused by the external injury. Mr. O.C. Chatterjee could not succeed in showing that Mahendra Singh respondent caused this injury to the deceased in exercise of his right of private defence of person. Hence, we have no hesitation in holding that the trial court rightly held Mahendra Singh respondents responsible for causing this injury to the deceased.
10. The next pertinent question, that requires decision is what was the nature of the offence, that was committed by Mahendra Singh respondent. This has to be ascertained from the evidence and the surrounding circumstances, which has been brought on the record of this case. From a bare reading of the eye witnesses, namely, Bhupendra Singh PW 1, Jaskaran PW 4, Jagjeet Singh PW 5 and Sakti Singh PW 8 it is evident that the assault on the deceased was not a pre-meditated one. The attack on the deceased was made all of a sudden, only after he had told the respondent and his companions that there was no use of picking up a quarrel and it was not proper for them to give beating to Sakti Singh. It has also come on the record that Mahendra Singh aimed a blow with his knife at Pavitra Singh deceased but the latter tried to catch hold of the knife and then Billa alias Vinay Kumar co-accused caught hold of Pavitra Singh from behind & then Mahendra Singh respondent struck a blow with his knife in the abdomen of Pavitra Singh. The story pal forward by the prosecution that the blow was inflicted on the abdomen of the deceased by the respondent after the deceased was caught hold of from behind by Billa alias Vinay Kumar co-accused, has not been believed by the trial Judge for reasons given by him in his judgment, with which we fully agree and which we need not reproduce here for fear of unnecessary repetition. Suffice it to say, that the rye witnesses did not ascribe this part to Billa In their farmer statements before the police by which they were contradicted at the trial. Pavitra Singh deceased also did not say in his dying declaration Ex. P17 that before the blow was struck in his abdomen by the respondent, he was caught hold of from behind by Billa alias Vinay Kumar co-accused Hence, the Versions given out by the eye witnesses and the deceased about the manner in which the blow was struck can be believed to the extent that Mahendra Singh respondent all of a sudden, made an attempt to strike the blow with his knife on the body of the deces(sic)sed, but the later tried to catch hold of the knife and in the course of such effort, the below fell on the abdomen of the deceased. Hence, from the circumstance, in which the blow was struck on the abdomen of the deceased by Mahendra Singh respondent, it cannot be inferred with reasonable certainty that the respondent must be deemed to have intended to cause the particular injury, which he actually caused to the deceased with a knife id in his abdomen. The possibility that the knife blow aimed at the body of Pavitra Singh by the respondent might have fallen on the abdominal region in the course of an attempt made by the deceased to catch hold of the knife end to match it from the hand of the respondent, could not be ruled out altogether. However, there is no room for doubt that the respondent had the knowledge specified in Section 304 Part II, IPC that death of the deceased may be caused by his act. In this view of the matter, we may observe that the offence committed by the respondent, fell squarely within the purview of Section 304, Part II, IPC.
11. Hence, the appeal State by the State, has no force and is hereby dismissed.