J. P. DESAI, J. ( 1 ) THIS is an appeal filed by the original accused against the judgment of conviction and sentence recorded by the learned Sessions Judge Banaskantha at Palanpur in Sessions Case No. 29 of 1985 whereby he convicted the accused-appellant for the offense punishable under sec. 302 I. P. C. and sentenced him to imprisonment for life. ( 2 ) THE facts of this case as alleged by the prosecution may be briefly stated as follows:on 14-3-1985 at about 10-30 P. M. the accused went to the house of Bai Fatma speaking abuses to the husband of Fatma Ibrahim Tajubhai. Fatma asked him as to why he was speaking abuses whereupon the accused gave to slaps to the husband of Fatma. Fatma separated them and then the accused went to his house came with a knife and gave a blow to the deceased causing injury on his thigh which ultimately proved fatal. Information was given to police and the police registered the offense and ultimately charge-sheet was submitted to the Court of the Magistrate who committed the accused to the Court of Session. The accused was ultimately tried by the Court of Sessions and convicted and sentenced as stated above. ( 3 ) THE evidence of P. W. 1 Dr. Shah shows that there was one incised wound on the right thigh of the deceased and that the said injury was about 8 cms. deep. His evidence also shows that there were internal injuries to the femoral artery and femoral vein was also cut resulting into profuse bleeding and death of the deceased. The learned Sessions Judge relied upon the evidence adduced before him and reached the conclusion that the appellant-accused was responsible for causing the death of the deceased. ( 4 ) THE learned advocate Mr. M. J. Budhbhatti who appears for Mr. Y. U. Malek for the appellant very fairly concedes that it is not possible for him to press the appeal on merits. We have also gone through the judgment of the learned Sessions Judge and we are also inclined to say that the Learned Session Judge rightly reached the conclusion on appreciating the evidence recorded before him that it was the appellant-accused who was responsible for causing the death of the deceased. We have also gone through the judgment of the learned Sessions Judge and we are also inclined to say that the Learned Session Judge rightly reached the conclusion on appreciating the evidence recorded before him that it was the appellant-accused who was responsible for causing the death of the deceased. ( 5 ) IT was contended before the learned trial Judge that the offense committed by the appellant-accused will be one of culpable homicide not amounting to murder punishable under sec. 304 Part II or at the most Part I I. P. C. and not under sec. 302 I. P. C. The learned Sessions Judge negatived that contention. The learned advocate Mr. Bukhari submitted before us that looking to the fact that only one injury was caused by the appellant-accused and that too on the thigh of the deceased and not on any vital part of the body of the deceased the offense will be one punishable under sec. 304 Part II I. P. C. Looking to the site of the injury it cannot be said that the accused intended to cause the death of the deceased or to cause some injury which may result in death. looking to the nature of the weapon use. by the appellant-accused and the part of the body viz. thigh on which the blow was given it can at the most be said that the accused had knowledge that by his act death may be the result. In view of this it is clear that the offense committed by the appellant-accused will fall under Part II of sec. 304 I. P. C. The learned Addl. Public Prosecutor Mr. Bukhari also very fairly conceded that looking to the above facts of this case it is difficult to say that the offence committed by the appellant-accused will be one of murder punishable under sec. 302 I. P. C. If the injury was caused on some vital part of the body then it would have been possible to say that the act of the accused will be covered by sec. 304 Part I I. P. C. but when the blow was given only on thigh it is clear that only knowledge can be attributed to him. 304 Part I I. P. C. but when the blow was given only on thigh it is clear that only knowledge can be attributed to him. ( 6 ) THE learned trial Judge relied upon a decision of the Supreme Court reported in State of U. P. v. Ram Sagar Yadav A. I. R. 1985 S. C. 416 for reaching the conclusion that the act of the accused in the present case fell within Clause 2ndly of sec. 300 I. P. C. The Supreme Court observed at para. 19 that except in cases covered by the five exceptions mentioned in sec. 300 I. P. C. culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or if the act falls within any of the three clauses of sec. 300 viz 2ndly 3 and 4thly. Sec. 300 I. P. C. reads as follows:"except in the cases hereinafter excepted. culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or 2 - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or 3 - If it is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or 4 - If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid". It would appear on reading sec. 300 I. P. C. that culpable homicide unless the case falls within one of the exceptions will amount to murder if it is done with the intention of causing death or if the act falls within any of the remaining three clauses of the above section. It cannot be said with any stretch of imagination in the present case that the accused intended to cause the death of the deceased and therefore the first clause is out of question. It cannot be said with any stretch of imagination in the present case that the accused intended to cause the death of the deceased and therefore the first clause is out of question. Clause 2ndly says that if the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused the offence will be that of murder. Illustration (b) to sec. 3c0 which pertains to Clause 2ndly shows that the act will fall under Clause 2ndly only if the offender knows that his act is likely to cause the death of the particular person to whom the harm is caused. The illustration says that if a person knowing that another person is laboring under such a disease that a blow is likely to cause his death strikes him with the intention of causing bodily injury and that person dies in consequence of the blow the offender will be guilty of murder although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. Here there is nothing on record to show that the deceased was laboring under any such disease or that the accused knew that fact and gave such a blow with such an intention and therefore on the face of it Clause 2ndly also can have no application. So far as Clause 3rdly is concerned the injury which was found on the person of the deceased was sufficient in the ordinary course of nature to cause death as per medical evidence but it must also appear that the accused intended to cause that very bodily injury which was found to be sufficient in the ordinary course of nature to cause death. It should be established by subjective test that that was intention of the accused. It is difficult to say when the accused gave a blow on the thigh that he intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. Hence the act of the accused will also not be covered by Clause 3rdly. Clause 4thly is also out of question looking to Illustration (d) which pertains to Clause 4thly. Hence the act of the accused will also not be covered by Clause 3rdly. Clause 4thly is also out of question looking to Illustration (d) which pertains to Clause 4thly. In view of this it is clear that the act of the accused in the present case does not fall within any of the four Clauses of sec. 300 I. P. C. and therefore the offence committed by the accused is that of culpable homicide not amounting to murder. ( 7 ) SO far as the decision of the Supreme Court is concerned it appears that it was decided on its own facts. It appears that the Supreme Court made the observation at para. 19 with regard to the nature of the offence committed by the accused. But it is pertinent to note that the Supreme Court after referring to the provisions of sec. 300 I. P. C. observed that since there was no appeal against the judgment of the learned Sessions Judge asking that the respondent should be convicted under sec. 302 I. P. C. and since the prosecution did not lead sufficient evidence through the Medical Officer in order to bring out the true nature of the injuries suffered by Brijlal it was not necessary to pursue the matter any further. In the present case we have medical evidence about the nature of injury sustained by the deceased It is not possible to ascertain from the judgment of the Supreme Court whether the deceased had sustained only one injury or more injuries in that case. In view of this the learned trial Judge with respect to him committed an error in pressing into service the above decision of the Supreme Court. ( 8 ) THE result of the aforesaid discussion is that the appeal of the appellant is required to be partly allowed and the conviction of the appellant-accused for the offence punishable under sec. 302 I. P. C. and the sentence of imprisonment for life imposed upon him for the same is required to be set aside and the appellant-accused is in its stead required to be convicted of the offence punishable under sec. 3047 Part II ( 9 ) SO far as the question of sentence is concerned Bai Fatma wife of the decision has filed an affidavit before us today stating the circumstances which we may take into consideration while considering the question of sentence. 3047 Part II ( 9 ) SO far as the question of sentence is concerned Bai Fatma wife of the decision has filed an affidavit before us today stating the circumstances which we may take into consideration while considering the question of sentence. Looking to the facts stated in the affidavit of Bai Fatma and looking to the circumstances in which the incident took place we think that the ends of justice will be met by sentencing the appellant-accused to rigorous imprisonment for five years. ( 10 ) THE result of the aforesaid discussion is that the appeal is partly allowed the conviction for the offence punishable under sec. 302 I. P. C. and sentence of imprisonment for life are hereby set aside and the appellant-accused is acquitted of that once but in its stead he is convicted of the offence punishable under sec. 304 Part II I. P. C. and sentenced to rigorous imprisonment for five years. (KMV) appeal Partly allowed: Conviction altered: Sentence reduced. .