JUDGEMENT :- The accused has preferred this appeal against his conviction and sentence passed by the learned Sessions Judge, Nanded. 2. The prosecution case is that one Kerba Bandey had four sons viz. (1) Nagorao, (2) Belu, (3) Laxman and (4) Govind. They had land at village Ashtur, Taluka Kandhar, Dist. Nanded. The accused also had his land near about the land of Kerba Bandey, On 17-1-1979, Laxman and Govind were grazing their cattle in their field. One Bhausaheb M. Suryanshey was also grazing the cattle in his field. Laxman, Govind and Belu are all young children between the ages of 10 to 12 years. After they grazed their cattle, they took their cattle to the river for drinking water and thereafter they grazed their cattle in the field of one Atmaram which was adjacent to the field of the accused. The cattle entered the field of the accused who got annoyed and slapped the three children and scolded them. Then Govind Laxman and Bhausaheb went to the field of one Lokuram where Belu was working as a labourer and informed him about the incident. Belu went to the field of the said Atmaram and accosted the accused as to why he slapped the three children and told him to show the damage done to the gram crop which was standing on the field of the accused. The accused did not give any response to the request and, therefore, Belu dragged the accused in the field telling him to show the damage. There was a scuffle between the accused and Belu and during the scuffle, the accused took out a knife from his pantpocket and stabbed Belu on the left side abdomen from behind. The intestine protruded out. Belu fell down unconscious. At that time, Nagorao who was working in his field heard the shout that Belu was assaulted. Nagorao went running to the field of Atmaram. He found Belu lying with the injury on the stomach in an unconcious condition. Then Belu's injury was tied with a lion cloth and he was taken on cot and brought to the village and from there Belu was taken to the Malakoli Police Station where the F.I.R. lodged by Nagorao was recorded by P.S.I. Marwalikar. Thereafter Belu was taken to the General Hospital, Nanded and was admitted as an indoor patient. He was discharged on 27-1-1979. 3. Thereafter Belu was taken to the General Hospital, Nanded and was admitted as an indoor patient. He was discharged on 27-1-1979. 3. The accused was arrested on 18-1-1979 at about 1.30 p.m. At the instance of the accused, the knife, article 5 was taken charge of by the police under panchnama Ex. 17A. The memorandum of the statement made by the accused is at Ex. 17. Belu had suffered a stab injury of 3" x 2" on the left side of abdomen and coils of intestines were protruding out. The injury was peritonium deep, Dr. (Mrs.) Jyoti Deshmukh who examined Belu at the General Hospital, Nanded has opined that the injury was sufficient in the ordinary course of nature to cause death. 4. On these facts the accused was charged under Section 307 of the I.P.C. The accused pleaded not guilty to the charge and his defence was of total denial. He has taken the plea that he has been falsely involved due to factions in the village. The learned Sessions Judge, Nanded, convicted the accused under Section 307 of the I.P.C. and sentenced him to suffer rigorous imprisonment for 1½ years. Against this conviction and sentence, the accused has preferred this appeal. 5. Mr. Joshi, the learned advocate appearing on behalf of the accused has contended that though the accused had not taken the plea that he acted in his right of private defence, nonetheless the evidence discloses that the accused has acted in his right of private defence and this court would be entitled to take into consideration the plea of the accused that he acted in his right of private defence. He has submitted that in fact, at the trial also, a specific point was raised as to whether the accused had any right of private defence and if so, to what extent. He has referred to the evidence of Belu wherein he has stated that there was a scuffle between him and the accused and it was by reason of the scuffle apprehended injuries to his person and, therefore, he took out the knife and stabbed Belu and, therefore, the accused has acted in his right of private defence and the accused has not exceeded his right of private defence and, therefore, the accused has committed no offence. 6. Mr. 6. Mr. Joshi also contended that the conviction under Section 307 of the Indian Penal Code is not legal inasmuch as the weapon which was used by the accused was an ordinary penknife and there was only one injury and that therefore taking into consideration the size of the weapon and the injury, no conclusion could be reached that the accused intended to cause the death of Belu and, therefore, the conviction under Section 307 of the I.P.C. is not legal and proper. Mr. Joshi has also contended that the weapon which was used was an ordinary weapon and he has referred to Sec. 324 of the Indian Penal Code and has submitted that in the present case the penknife article 5 even if it is used as a weapon was not likely to cause death and, therefore, the offence would not be under Section 324 of the Indian Penal Code. His contention is that even if this court comes to the conclusion that the prosecution has proved that the accused assaulted Belu, then at the highest, the offence would be under Section 323 of the Indian Penal Code and under no other Section. It is difficult to accept any of the submissions of Mr. Joshi. 7. To bring home the charge against the accused, the prosecution has led the evidence of Belu Bandey (P.W. 2) the victim of the assault and two eye-witnesses Govind Bandey (P.W. 3) and Bhausaheb Mansingh (P.W. 8). The prosecution has examined Dr. (Mrs.) Jyoti Deshmukh (P.W. 12) who treated Belu at the General. Hospital, Nanded. There is also the evidence of the panch witnesses in whose presence articles 2 to 4 viz. Banian, Loin cloth (gamcha) and Dhoti on the person of Belu were attached by the police. The panch witness in this regard is Madhavrao (P.W. 5) and Amrut Jodhraney (P.W. 6) is the panch witness to the panchnama of the scene of offence Ex. 16, to the memorandum of statement made by the accused Ex. 17 and to the seizure panchnama of the knife article 5, Ex. 17-A. The evidence of Belu Bandey shows that when Govind and Bhausaheb went and reported to him that the accused has assaulted them, he went to the accused and he accosted the accused as to why he assaulted these young children viz. Laxman, Govind and Bhausaheb. 17 and to the seizure panchnama of the knife article 5, Ex. 17-A. The evidence of Belu Bandey shows that when Govind and Bhausaheb went and reported to him that the accused has assaulted them, he went to the accused and he accosted the accused as to why he assaulted these young children viz. Laxman, Govind and Bhausaheb. Then there was a scuffle between the accused and Belu and Belu caught hold of the hands of the accused and told him to point out the damage done to the crop by the cattle. It was at this time that the accused took out a knife and gave a stab blow from the back side into the abdomen of Belu. Questions have been put in cross-examination whether there were factions in the village and whether the cattle were being taken through his field to the field of Belu or to the river. But these are the questions which did not touch the merits of the case at all. There is hardly any cross-examination on the incident itself, and therefore, the evidence of Belu must necessarily be accepted. He is the victim of the assault and it is hardly likely that he would allow the real assailant to escape and name an innocent person as his assailant. The evidence of Belu stands corroborated by the medical evidence of Dr. (Mrs.) Jyoti Deshmukh (P.W. 12). She examined Belu on the same day at 9.10 p.m. and has found the injury on the person of Belu which has been noted above. It stands further corroborated by the evidence of Govind (P.W. 3) and Bhausahnb (P.W. 8). There is some variation in the evidence of these two witnesses in regard to what they reported to Belu. There is hardly any discrepancy in regard to the assault on Belu. Both these witnesses have clearly stated the manner in which the accused assaulted Belu. There is no reason whatsoever why the evidence of these witnesses should be discarded. The evidence of the victim of the assault Belu and of the two eye-witnesses is cogent and natural and must be accepted. It must, therefore, be held that the prosecution has proved beyond all reasonable doubt that it was the accused who stabbed Belu in the abdomen region. The knife, article 5, is a knife which is identified by the three witnesses as the weapon of assault. It must, therefore, be held that the prosecution has proved beyond all reasonable doubt that it was the accused who stabbed Belu in the abdomen region. The knife, article 5, is a knife which is identified by the three witnesses as the weapon of assault. It was seized by the police under panchnama Ex. 17. The knife article 5 is a described in the panchnama Ex. 17A. The entire length of the knife is 7" and the blade is 3" in length. Its width is of ½". The knife was sent to the Chemical Analyser and the Chemical Analyser's report - Ex. 24 shows that the knife had blood on it. Therefore, it must be held that the prosecution has proved that the accused assaulted Belu with the knife, article 5. 8. The next question is whether the accused has inflicted the injury on Belu in his right of private defence. Now, the only ground on which the accused claimed right of private defence is the evidence of Belu that there was a scuffle between him and Belu. But there is no evidence whatsoever to show that Belu had any weapon with him at that time. There is also no evidence to show that Belu did anything which caused apprehension in the mind of the accused that Belu would cause any injury to him. The accused has denied in his examination under Section 313 of the Criminal Procedure Code that he had inflicted knife injury on Belu. Belu being unarmed, there could be no apprehension in the mind of the accused that any injury would be caused to him. There was no justification for the accused to have inflicted the knife injury on the person of Belu. Therefore, the plea that Belu (sic) in his right of private defence cannot be accepted. 9. The question that arises is what offence is committed by the accused. The evidence of Dr. (Mrs.) Jyoti Deshmukh (P.W. 12) shows that Belu was operated upon on the same night. Dr. (Mrs.) Deshmukh has opined that the said injury was sufficient in the ordinary course of nature to cause death. She has further opined that the injury could have been caused by the knife article 5, Belu was in the General Hospital, Nanded from 17-1-1979 to 27-1-1979. According to Dr. Deshmukh, abdomen is a vital organ. Dr. (Mrs.) Deshmukh has opined that the said injury was sufficient in the ordinary course of nature to cause death. She has further opined that the injury could have been caused by the knife article 5, Belu was in the General Hospital, Nanded from 17-1-1979 to 27-1-1979. According to Dr. Deshmukh, abdomen is a vital organ. The injury was such that Belu was semiconscious and was not in a position to talk. This evidence was taken into consideration by the trial Court and the trial court observed that the injury caused to Belu was on vital organ like abdomen. The injury was deep enough which almost reached up to the intestine as the peritonium was also cut and intestine had protruded out of the perforation that was caused and for that reason the trial court came to the conclusion that the offence was one under Section 307 of the Indian Penal Code. I see no reason to come to any different conclusion. Although the knife appears to be a penknife, the medical evidence shows that the injury that was caused to Belu was of serious type. Had he not been operated upon, in all probability, Belu would have succumbed to his injury. Intention is an act of a mind and has to be gathered by the surrounding circumstances. The mere fact, therefore, that the accused used a small penknife and because only one injury was caused, is not sufficient to come to a conclusion that the accused did not intend to cause the death of Belu. The accused has caused the injury under the circumstances that if by the stab blow he would have caused the death, he would have been guilty of murder. The conviction of the accused under Section 307 must, therefore, be sustained. 10. As regards the sentence, Mr. Joshi has argued that the accused is a young boy and has acted at the heat of moment. The accused ia studying for his S.S.C. Examination and a lenient view may be taken in the matter. Mr. Barday, the learned public prosecutor has left it to court. The accused was arrested on 18-1-1979 and was released on bail on 26-3-1979 (the dates have been given by Shri Joshi). He was convicted on 27-3-1979 and has been in jail since the date of his conviction. The accused is, therefore, in jail for about 13 months. Mr. Barday, the learned public prosecutor has left it to court. The accused was arrested on 18-1-1979 and was released on bail on 26-3-1979 (the dates have been given by Shri Joshi). He was convicted on 27-3-1979 and has been in jail since the date of his conviction. The accused is, therefore, in jail for about 13 months. I feel that taking into consideration the facts and circumstances of the case, and the age of the accused, the ends of justice would be met if the accused is sentenced to suffer imprisonment to the period that he has already undergone. I, therefore, pass the following order : Appeal dismissed. Conviction of the accused under Section 307 of the I.P.C. confirmed. The accused is sentenced to rigorous imprisonment up to the period that he has already undergone. Appeal dismissed.