JUDGMENT :

FARJAND ALI, J.

1. The instant criminal appeal has been preferred against the judgment dated 28.11.1997 passed by the learned Additional Sessions Judge, Phalodi in Sessions Case No.25/1996, whereby the appellant was acquitted of the charge under Section 302 IPC, however, was convicted for the offence under Section 307 IPC and sentenced to undergo seven years’ rigorous imprisonment along with fine of Rs.51,000/- and in default of payment of fine, to further undergo one year simple imprisonment.

2. The prosecution case, in brief, is that on 05.09.1996, statement of injured Om Prakash was recorded at the local hospital by the then SHO Ashwini Kumar in the presence of Dr. C.P. Mathur and the same was exhibited as Ex.P/15. In the said statement, Om Prakash alleged that while returning after lodging a report regarding an earlier quarrel which had taken place in the morning, accused Liladhar @ Ghatia suddenly emerged near Marudhar Press situated on Pathar Road and inflicted a knife blow below his left ear, resulting in bleeding injuries. On the basis of the said statement, FIR No.178/1996 came to be registered for offences under Sections 302 and 326 IPC and investigation commenced. Om Prakash subsequently succumbed and post- mortem report Ex.P/16 came to be prepared on 06.09.1996. After completion of investigation, charge-sheet for offence under Section 302 IPC was filed against the accused and the matter was committed to the Court of Sessions for trial. During trial, the prosecution examined fifteen witnesses including PW-1 Radheshyam, brother of the deceased, PW-4 Leeladhar, father of the deceased, PW-10 Dr. C.P. Mathur, PW-12 Dr. N.S. Kothari and PW-15 Ashwini Kumar, the Investigating Officer. Certain witnesses turned hostile. Statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied the allegations and claimed innocence. No evidence was led in defence. Upon hearing the parties and appreciation of the evidence available on record, the learned trial Court passed the impugned judgment convicting the appellant under Section 307 IPC while acquitting him of the offence under Section 302 IPC. Hence, the present appeal.

3. Learned counsel for the appellant vehemently contended that the entire prosecution story suffers from glaring inconsistencies, material improvements and serious infirmities. It was argued that deceased Om Prakash himself, in his earliest version Ex.P/15, specifically attributed only one injury near the left ear to accused Ghatia and did not whisper a single word regarding any abdominal injury. Learned counsel further submitted that in Ex.P/15 itself, the deceased categorically stated that accused Matka was not present at the spot and that the only overt act attributed to accused Ghatia was the knife injury near the ear. It was further contended that PW-1 Radheshyam, who allegedly accompanied the deceased throughout the occurrence, in his statement recorded under Section 161 Cr.P.C. and exhibited as Ex.D/1, also referred only to the injury near the ear and no allegation whatsoever was made regarding any abdominal injury. However, while deposing before the learned trial Court, PW-1 materially improved his version by introducing an altogether new allegation that the accused had also inflicted a knife blow on the abdomen of the deceased. Learned counsel submitted that this material improvement goes to the root of the prosecution case and renders the testimony of PW-1 unreliable insofar as the abdominal injury is concerned. It was, therefore, argued that the prosecution has utterly failed to establish beyond reasonable doubt that the fatal abdomi