IMPORTANT POINT
The law is well-settled that the conviction under section 302, I.P.C. can be converted to one under section 302/34 I.P.C. and vice versa, if no prejudice is caused to the accused.

JUDGMENT

H.C. Mittal, J. - Khushali has preferred this appeal against his conviction and sentence under Section 302 read with section 34 I.P.C to life imprisonment passed by Sri V.V. Singh, the then Addl. Sessions Judge, Aligarh by his judgment dated 6-10-1979.

2. Prosecution case in brief is that the appellant Khushali was wanted in a dacoity case and he was absconding, hence under section 87/88 Cr. P.C. his belongings were attached and given in the Supurdgi of deceased Narain who was a distant uncle of appellant Khushali. Smt. Jaidevi wife of Teja, after her husband's death she had developed illicit intimacy with Narain deceased, who also used to cultivate the land of Smt. Jaidevi. Hence Khushali bore ill will towards the deceased which was further bolstered when his belongings after attachment was taken in his supurdgi by Narain deceased. It is said that the appellant had sent threats to Narain to return his goods to him, otherwise he would teach him a lesson. The incident is alleged to have taken place on 18-12-1964 at about 5 a.m. in the town of Khari District Aligarh. According to the prosecution Smt. Jaidevi and Khushali approached the house of Narain and knocked the door and on Smt. Jaidevi asking the deceased to open the door, the same was opened and Narain carne out with a burning earthen lamp in his hand, immediately there upon Khushali is alleged to have inflicted knife injuries to Narain. On hearing the alarm raised by the deceased his brother Laxman, Bhudeo and Gowardhan neighbours arrived. Ramji Lal, village Chaukidar as well as Farid Khan also arrived. On seeing the witnesses Khushali made good his escape, while Smt. Jaidevi was apprehended on the spot. Immediately thereafter F.I.R. of the occurrence was lodged by Laxman at 5.30 a.m. at P.S. Khari at a distance of about three furlongs, on the basis of which case under section 307 IPC against Khushali and Jaidevi was registered. The injured was taken to the hospital where his injuries were examined by Dr. R.C. Vedi at 6 a.m. and he noted the following injuries on his person:

1. Incised punctured wound 1-1/4" x 1/3" (middle) x abdominal cavity deep on front of right side anterior abdominal wall. Out of the wound 4" of mesentary is plolapring. Wound is profusely bleeding, no clothes. Situated 2-1/2" above the umblicus and 1-1/2" to the right of middling.

2. Incised wound 2/3" x 1/8" x muscle deep on the back of middle third of left fore-arm.

3. Incised wound 1/2" x 1/6" x skin deep on the front of left arm 1/1/2" above the elbow.

4. Abrasion 1/2" x 1/4" on the back of left hand.

5. Incised punctured wound vertical 1-1/2 x 1/4" x abdominal cavity deep on left side back in the lumber region 2" above the iliac crest and 2" left of spine wound is profusely bleeding.

6. Incised punctured wound 1-1/2" x ½” x chest cavity deep on left side back 3-1/2: below the interior angle of left scapula and 4" left of spine. Portion of muscale faseia prolapring.

7. Two abrasions 1/2" x 1/4" each on the front of left was right knees.

3. Dr. Vedi had also informed the police and requested the Tehsildar to record the dying declaration through letter (Ex Ka. 24), but he was not available, hence be himself recorded the statement (Ex. Ka. 25) hence he himself record the statement (Ex. Ka. 25) of Narain, who subsequently succumbed to his injuries when he was sent to Aligarh Hospital in the way. On receipt of information of the death at P.S. Kotwali at 11 a.m. SI Ram Charan Singh reached bus stand and prepared the inquest report. His dead body was sent for postmortem and Dr. K.C. Dubal on 18-12-1964 had done the autopsy, prepared the postmortem report (Ex. Ka. 26) and noted as follows:

Ante mortem Injuries:

1. Stitched wound (on opening) punctured wound with incised margin 11/2" x 1/4" x abdominal cavity deep right side abdomen 2-1/2" above umblicus.

2. Abrasion 1/2" x 1/4" right wrist back outer portion.

3. Punctured wound with incised margin 1/4” x 1/8" x bone deep lef