JUDGMENT

Chandra Prakash, J.

This is an appeal against the order dated 18.4. 1973 of Sri M. Wahajuddin, Sessions Judge, Etawah convicting appellant Sheo Chand under Section 307 I. P. C. and sentencing him to four years' R. I.

Therewas a school in village Balpur, police station Airwakatra in the district of Etawah. In that school Rama Kant (P. W. 2) grandson of Babu Ram (P. W. 1) used to read. One Ram Bharosey uncle of Sheo Chand appellant and brother of Ram Prasad was the President of the above said school. There was a handpump in that school, but it refused to work after some time for providing water to the school children. Ram Prasad, father of the appellant, removed the handpump from the school premises and fixed it in his own well. On 17101969 Rama Kant went to the aforesaid handpump, but Ram Prasad did not allow him to drink water on the ground that Rama Kant was spoiling the water of the well itself. Rama Kant went in disgust and informed his grandfather, Babu Ram (P.W. 1). At about 3.30 P.M. Babu Ram went to Ram Prasad aforesaid in order to protest against his action in disallowing his grandson to drink water from the aforesaid handpump. Exchange of abuses followed and there was a scuffle also between Ram Prasad on the one hand and Babu Ram, on the other. Sheo Chand appellant was also there and when he saw the scuffle he went inside his house, brought a knife and stabbed Babu Ram (P.W. 1). Witnesses including Sri Kishan (P. W. 3), Vijai Bahadur (P.W. 6) arrived and the appellant and his father ran away.

The First Information Report (Ex.Ka/l) of the incident was lodged by Babu Ram (P.W. 1) at 8.35 P.M. at the police station Airwakatra. A case against the appellant and his father was registered and investigated. The appellant and his father were challenged under Section 307 I.P.C.

The appellant and his father Ram Prasad pleaded not guilty. They admitted that Rama Kant was refused to have water from the aforesaid handpump. Their defence was that Babu Ram (P.W. 1) complainant came armed with a knife, threw Rani Prasad on the ground and sat on his chest. Sheo Chand appellant came from behind, caught ho?d of Babu Ram and dragged his left hand, which contained the knife and while h? was dragging, the knife struck Babu Ram himself on his chest.

The prosection examined eight witnesses in support of its story including three eyewitnesses. Appellant and his father Ram Prasad produced no defence. After considering the entire evidence on record, the court below came to the conclusion that no offence was brought home to Ram Prasad. Ram Prasad was accordingly acquitted. The court below, however, found appellant guilty under Section 307 I.P.C. and convicted and sentenced him as already noted above.

Feeling aggrieved the appellant has come in appeal before me. It is contended on his behalf that his conviction under section 307 I. P. C. is not warranted by the testimony on record. After hearing the learned counsel for the appellant as also the learned counsel appearing on behalf of the State at length and after going through the record I have come to the conclusion that the conviction of the appellant under Section 307 I. P. C. cannot be allowed to stand. Instead, he must be convicted under Section 324 I.P.C.

The prosecution story set up by the prosecution was narrated by Bapu Ram (P. W. 1) from the beginning to the end. He also proved the First Information Report Ex.Ka/l. His testimony was corroborated by Sri Krishna (P. W. 3) and Vijai Buhadur (P. W. 6). The court below has doubted the presence of Sri Krishna (P. W. 3) and Vijai Bahadur (P. W. 6) and has excluded their testimony from consideration. The testimony of Sri Krishna and Vijai Bahadur appears to have been rightly discarded by the court below.

Dr. I. D. Misra (P. W. 8) examined the injuries of Babu Ram (P. W. 1). He found the following injuries :

"Incised wound 4" x 1/2" x 1/2" on the left side of chest in 7th rib region from posterior Axillary line up to interior axillary line 3" below