LODHA, J.—The appellant Gani Mohammad has been convicted by the Additional Sessions Judge, Gangapur under sec. 302, I.P.C. for causing the murder of Abdul Rashid, and has been sentenced to rigorous imprisonment for life.

2. The prosecution case is that on 8-3-65 while deceased Abdul Rashid was offering prayer in a mosque in Dungarpada at about 5 P.M., the accused stabbed him with a knife in the right side of his abdomen. Abdul Rashid cried out in agony and ran away from the spot. He crossed over the roof and tin-shed of the shops attached to the mosque and jumped down in the Bazar. The accused, however, followed him and attempted to give a second blow to the deceased Abdul Rashid, who was however rescued by P.W.4 Hiralal Nai.This incident was witnessed by P.W. 2 Hamid Beg, P. W. 3 Nathulal, P.W. 4 Hiralal, P.W. 6 Habib Beg, P.W.7 Ramjilal and P.W. 15 Manohar Lal. A first information report of the occurrence was immediately lodged at the Police Station, Toda Bhim, which is at a distance of about a furlong from the place of occurrence and the Station House Officer, Bahadur Singh (P.W. 16) came to the spot and made necessary investigation. The accused was found in his house and was arrested and a blood stained knife was recovered from the pocket of his trousers which he was wearing at that time. The trousers had also blood stains and therefore the same was taken possession of by the Police. Since the deceased was in a serious condition, his dying declaration Ex. P. 1 was also recorded by the Station House Officer himself and the same has been placed on the record and marked Ex. P. 1. Some marks of blood were also found on the carpet spread out in the mosque where the people had offered Namaz and consequently the Station House Officer took the cuttings of the portions of the blood stained carpet in his possession. The injured Abdul Rashid while he was being taken in a bus to Jaipur breathed his last on the way and his body was therefore taken back to Todabhim. P.W. 10 Dr. Kanhyalal performed the post-mortem examination of the dead body of Abdul Rashid on 9-3-1965. Thus after completing the investigation the Police challanged the accused in the Court of Munsiff-Magistrate, Hindaun for offence under S. 302 I.P.C. and was in due course committed to the Court of Additional Sessions Judge, Gangapur to stand trial under sec. 302, I.P.C.

3. It is not necessary to consider the prosecution evidence in detail and all the circumstances brought forth on the record by the prosecution to establish the guilt against the accused as the learned counsel for the appellant has conceded that there are no sufficient grounds made out for challenging the fact that the accused had caused an injury with a knife to the deceased Abdul Rashid. However, we have looked into the relevant portions of the record and are satisfied that the prosecution has established beyond reasonable doubt by overwhelming evidence that the incident did take place in the manner alleged by the prosecution and that the accused had caused an injury with a knife to the deceased Abdul Rashid. The only question canvassed before us on behalf of the appellant is that the trial court committed an error of law in convicting the accused under sec. 302, I P.C, and according to the learned counsel at best the case against the accused can fall under sec. 304 Part II, I.P.C.

4. In order to appreciate the contention raised on behalf of the appellant it would be, in the first instance, necessary to examine the nature of the injury inflicted by the accused on the deceased. According to the post-mortem report Ex. P. 4 and the statement of P. W. 10 Dr. Kanhyalal the deceased had the following external injury—

"Oblique incised wound 1-1/2" x 1/2" and communicating with abdominal canvity present in the mid axillary line at the tenth right rib."

On the internal examination of the body it was found that the tenth right rib was fractured in the mid axillary line and the peritoneum contained blood fluid. The rig

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