1. - By the order dated 28.2.2003 learned Addl. Sessions Judge (Fast Track) No.2, Banswara convicted the appellant for the offence punishable under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life term with a fine of Rs. 1000/- and further to undergo three months' rigorous imprisonment in the event of default in making payment of fine.

2. The case of the prosecution is that PW-1 Toliya submitted an oral report on 28.7.2002 at 8.45 pm with assertion that he married with Reshmi D/o Weja resident of Tadi Mahudi, Police Station - Banswara about 20 years back. Toliya and Reshmi remained as husband and wife for a period of ten years but because of some dispute Reshmi proceeded to her father's home. After remaining with father for a period of about 3 years Reshmi entered into a Nata with Mani Lal S/o Dhirji Masar resident of Badi Sand, Police Station - Sallopat, District - Banswara. After staying for a period of about 5 years with Mani Lal, Reshmi again came to her father Weja and started residing with him at Tadi Mahudi. Toliya then, received a message from his inlaws family to get the money relating to "Jhagda". On the date of occurrence of the incident in question Toliya along with his nephew Ramesh S/o Dita and Laxman S/o Gangaji went to Tadi Mahudi and entered into deliberations with regard to grant of amount relating to "Jhagda". The brother-in-law of PW-1 Toliya conveyed that Mani Lal was not ready for making payment of the amount concerned, and therefore, Toliya also refused to take Reshmi with him. While proceeding to home from inlaws house in the evening at about 7.30 pm when Toliya along with Ramesh was standing at Ratlam Naka, Mani Lal Masar came and gave a knife blow in the abdomen of Ramesh. On making hue and cry Mani Lal ran away towards the woods. Ramesh was then taken to the hospital where he died. On basis of the information a case was lodged and regular investigation was conducted. The case was then committed to the Court of Sessions and chargesheet was filed. A charge for commission of an offence punishable under Section 302 IPC was framed against the accused appellant. On denial of the same he was tried.

3. The prosecution supported its case with the aid of 12 witnesses (PW-1 to PW-12) and 17 documents (Ex.P/1 to Ex.P/17). An opportunity was given to the accused to explain the circumstances appearing against him in the evidence adduced by the prosecution. The accused denied whatever adverse material available against him in the evidence, however, no evidence in defence was produced.

4. Learned trial court after examining the evidence available on record, specifically the statements of PW-1 Toliya reached at the conclusion that a knife blow was given by the accused to Ramesh consequent to which he died. Learned trial court also found that the accused was intending to kill Ramesh, and as such, he committed an offence described under Section 300 IPC and thus held him guilty for an offence punishable under Section 302 IPC.

5. In appeal it is contended by learned Amicus Curiae Sh. M.L. Choudhary that the trial court erred while not appreciating the fact that only a single injury was given to the deceased and there was no intention of the accused to kill him. As such, even as per the prosecution case the offence, if any committed by the accused, does not travel beyond the offence punishable under Section 304 Part- I IPC.

6. We have considered the arguments advanced and also scrutinised the record available.

7. PW-5 Dr. Ravi Upadhyaya conducted autopsy on the body of the deceased Ramesh, thus, he proved the postmortem report Ex.P/11. As per Ex.P/11 body of deceased Ramesh was having single ante-mortem stab wound. The cause of death given is massive hemorrhage due to stab wound injury to kidney left.

8. PW-1 Toliya who submitted first information Ex.P/1 also stated that a single knife blow was given by the accused Mani Lal to deceased Ramesh. In the statements of PW-1 it no where appears that