JUDGMENT

This appeal is against conviction judgment in SC.No.112/2016 on the file of I Additional Sessions Judge, Kolar. The appellant being the accused faced trial for the offence under section 302 of IPC and has stood convicted and sentenced to life imprisonment and fine of Rs.10,000/-.

2. The incident that led to prosecuting the accused took place on 8.5.2016, the allegation against the accused being that when the accused, Narayanaswamy, Anbu and Tulasi were playing a native dice game called ‘Chowka Bhara’ in front of Satyamma temple around 12 noon, the accused and Narayanaswamy got into altercation which was pacified by the villagers. But around 1.00 p.m., when Narayanaswamy was sleeping in front of Satyamma temple, all of a sudden the accused came to that place with six others and on the instigation of one Nagaraj stabbed Narayanaswamy on his left rib. This resulted in Narayanaswamy suffering serious injuries. He was taken to SNR Hospital, Kolar in the first instance and from there he was shifted to R.L Jalappa Hospital. But Narayanaswamy succumbed to injuries on the same day at

4.35 p.m.

3. PW13 was the first informant and Ex.P13 was the report given by him to the police. He was also an eye witness. Out of 18 witnesses examined by the prosecution, majority of them did not support, but based on the testimony of PW13 and recovery of knife at the instance of the accused, the trial court held that the prosecution was able to prove its case beyond reasonable doubt and thereby convicted the accused.

4. We have heard the argument of Sri. V.G. Tigadi, learned counsel for the appellant and Sri. M.V. Anoop Kumar, High Court Government Pleader for the respondent - State.

5. Sri. V.G. Tigadi confined his argument to the point that the conviction against the accused for the offence under section 302 IPC cannot be sustained in as much as MO.1 the knife is not a dangerous weapon, and if the testimony of PW13, the eye witness is acceptable, at best the accused can be held guilty of the offence under section 325 IPC. Elaborating, Sri. Tigadi argued that PW10, the doctor has given the cause of death as due to stab injury and this opinion of the doctor is incorrect in the sense that injury will never result in death, but on the other hand injury will result in shock or hemorrhage which will lead to death. PW10 has not given this kind of opinion. He has also not mentioned the width of the weapon. In his evidence he has just stated that the length of the knife was 23 cms. Length of the handle was 11.5 cms and length of the blade was 10.5 cms. If he noticed stab wound measuring 2 cms x 1 cm over left side of the chest, he should have given the width or the thickness of the blade in which event it would have been possible to infer that MO1 was used for inflicting injuries. Even otherwise if MO1 is seen, it is just a kitchen knife which cannot be considered as dangerous or deadly weapon. The evidence shows that Narayanaswamy was taken to hospital on a two wheeler which circumstance thereby indicates that he did not sustain such kind of injury as would result in death. The post-mortem report shows that the stab had cut the 8th rib and then cutting the spleen through made a nick on the left lobe of liver. Spleen is not vital organ to say that injury to it would result in death. Of course liver is a vital organ, but except a nick there was no damage to it. In this view no opinion can be formed that the death was as a result of stab injury. He argued that the accused should have been convicted for the offence under section 325 of IPC and therefore now in this appeal, the impugned judgment is to be modified for the said offence and the custody period that he has already undergone be set off against the punishment for the offence under section 325 of IPC. In support of his argument he placed reliance on a few decisions to which we will refer later.

6. Meeting the arguments of Sri V.G.Tigadi, learned Government Pleader argued that if really the accused ha