P. M. CHAUHAN, J. ( 1 ) APPELLANT Amu Mavji Khavas is convicted by the learned Additional Sessions Judge Rajkot in Sessions Case No. 11 of 1983 for the offence punishable under Sec. 302 Indian Penal Code for committing the murder of Jivuben wife of his brother Kanubhai Mavjibhai and sentenced to suffer imprisonment for life and to pay a fine of Rs. 250. 00 in default three months further rigorous imprisonment. He is also convicted for the offence punishable under Sec. 324 Indian Penal Code for voluntarily causing hurt to witness Karapiya alias Swaminarayan by a knife and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 150. 00 in default rigorous imprisonment for further two months. The substantive sentences were ordered to run concurrently. ( 2 ) PROSECUTION case was that Jivuben vas the wife of Kanubhai Mavji younger brother of the appellant-accused. Jivuben was doing masonry labour work at the factory where Karapiya was working as a watchman. Karapiya used to come to the house of Jivuben for taking meals. On 5/09/1982 at about 12. 30 p. m. Karapiya had come to the house of Jivuben for lunch and had taken lunch and had just come out of the house of Jivuben and at that time the appellant went to the house of Jivuben and asked her the reason why Karapiya had been there and Jivuben told him not to interfere in her affairs and the appellant got enraged and inflicted knife-blow on the neck of Jivuben by which jugular veins of Jivuben were cut. Karapiya intervened and be was also given a knife blow on the chest. Kanubhai was not at home at that time and he come after some time and took Jivuben and Karapiya to the Hospital. Dr. Hemantkumar sutured the external injury of Jivuben and also gave treatment to Karapiya. Complaint was filed and dying-declaration of Jivuben was recorded by Executive Magistrate Shri H. M. Vyas. At about 9. 00 p. m. Jivuben succumbed to the injury. The learned trial Judge on trial convicted and sentenced the appellant as aforesaid. ( 3 ) WE are taken through the evidence by Mr. M. J. Buddhabhatti learned Advocate for the appellant and on appreciation of the evidence of eye-witnesses Mariyamben Noormahmad (Ex. 12) Ratanben Amardas (Ex. 13) and injured Karapiya (Ex. 28) and dying-declaration of Jivuben (Ex. The learned trial Judge on trial convicted and sentenced the appellant as aforesaid. ( 3 ) WE are taken through the evidence by Mr. M. J. Buddhabhatti learned Advocate for the appellant and on appreciation of the evidence of eye-witnesses Mariyamben Noormahmad (Ex. 12) Ratanben Amardas (Ex. 13) and injured Karapiya (Ex. 28) and dying-declaration of Jivuben (Ex. 19) we have no hesitation to agree with the finding of the learned trial Judge that the appellant caused injuries with a knife to Jivuben and Karapiya. ( 4 ) WITNESS Mariyamben (Ex. 12) is residing in the neighbourhood. Her evidence is that she was sitting in front of her room and Karapiya had come to take meals at the house of Jivuben and he took meals and just left and Jivuben came out of the house and at that time the appellant came there and inflicted knife blow on the neck of Jivuben. Karapiya intervened to rescue Jivuben and the appellant inflicted a knife blow to him and Karapiya fell down. Witness Ratanben (Ex. 13) was working with Jivuben and therefore she had just come to the house of Jivuben to call her for going to work. She saw Jivuben and Karapiya coming out of the house and at that time the appellant came there left his cycle on the road went in front of the house of Jivuben and asked Jivuben as to why she used to serve food to Karapiya and Jivuben told him not to interfere in her affairs and the appellant got enraged and took out a knife and inflicted one blow on her neck and at that time Karapiya intervened and therefore he was also inflicted one knife blow on the chest by the appellant. The appellant thereafter went away. In cross-examination of Mariyamben and Ratanben practically nothing is brought out to disbelieve them. Witness Karapiya was injured by the appellant. His evidence is that he was working as watchman in the factory which was under construction and where Jivuben and other ladies were doing masonry labour work. Jivubens husband Kanubhai had agreed and allowed him to take meals at his house and he was taking meals as paying-guest. Witness Karapiya was injured by the appellant. His evidence is that he was working as watchman in the factory which was under construction and where Jivuben and other ladies were doing masonry labour work. Jivubens husband Kanubhai had agreed and allowed him to take meals at his house and he was taking meals as paying-guest. He has also stated that on the day of the incident he went at the house of Jivuben at about 12 30 p. m and after taking lunch he just came out to start to go for work and the appellant came there and asked him the reason for which he had gone there and he replied that he had gone there for lunch. At that time Jivuben came out of the house and the appellant asked Jivuben the reason why Karapiya was served food and then inflicted a knife blow to Jivuben. He then intervened and the appellant inflicted a knife blow to him on his chest. Within a short-time Jivubens husband Kanubhai came there with rickshaw and both of them were taken to the hospital and he was admitted in the hospital. ( 5 ) IN the dying-declaration (Ex. 19) recorded by Executive Magistrate Shri H. M. Vyas (Ex. 19) Jivuben stated that Karapiya had gone to her house to take lunch and the appellant had told Karapiya to go away to his village and she told the appellant that Karapiya would go away and the appellant who was drunk inflicted knife blow to her. Mariyamben and Ratanben were present. Karapiya intervened and the appellant caused him injury Kanubhai then came after about half an hour and took them to the hospital. ( 6 ) THE evidence led by the prosecution is cogent and convincing and Mr. Buddhabhatti learned Advocate for the appellant was at pains to convince us to discard the evidence of the witnesses. The learned trial Judge has therefore rightly held that the appellant caused injuries to Jivuben and Karapiya. ( 7 ) THE question for consideration is as to whether the appellant should be convicted for the offence of murder punishable under Sec 302 Indian Penal Code or for culpable homicide not amounting to murder punishable under Sec. 304 Part I or II Indian Penal Code. ( 7 ) THE question for consideration is as to whether the appellant should be convicted for the offence of murder punishable under Sec 302 Indian Penal Code or for culpable homicide not amounting to murder punishable under Sec. 304 Part I or II Indian Penal Code. Several circumstances which we would just discuss lead us to hold that the appellant cannot be convicted for the offence of murder punishable under Sec. 302 Indian Penal Code but should be convicted for the offence of culpable homicide not amounting to murder punishable under Sec. 304 Part I Indian Penal Code ( 8 ) ADMITTEDLY the appellant came to the house of Jivuben and saw Karapiya and it appears that he suspected some unfair relation between Jivuban and Karapiya and therefore asked Jivuben as to why Karapiya was called there and Jivuben retorted that the appellant should not interfere in her affairs which enraged the appellant and the appellant inflicted one knife blow to Jivuben on her neck. It was therefore not a premeditated act of the appellant and he was enraged because of the reply by Jivuben Only one knife blow was inflicted on the neck and it appears that the blow was not inflicted with force. Dr. Hemantkumar (Ex. 5) examined Jivuben at about 1. 45 p. m on 5 and found one stab wound of the size of 3/4 x 1/2 x 1/3 on sternal region of Jivuben. It was a fresh injury and was bleeding and stitches were taken by Dr. Hemantkumar. It is therefore clear that blow must not have been inflicted with force Dr. Hemantkumar in cross-examination stated vital artery of Jivuben was injured. He also admitted that when he examined Jivuben he did not feel that her life was in danger. According to him there were all chances for Jivuben to survive but denied that the injury was not such so as to cause death. Jivuben expired at 9. 00 p. m and autopsy was done by Dr. Kishoriben (Ex. 10) Dr. Kishoriben found sutured wound of the size of about 3/4 on the left side of the neck and on internal examination she found that both jugular veins were cut and divided. In the opinion of Dr. Kishoriben cause of death was shock due to haemorrhage from Jugular veins due to injury on the neck. Dr. Kishoriben (Ex. 10) Dr. Kishoriben found sutured wound of the size of about 3/4 on the left side of the neck and on internal examination she found that both jugular veins were cut and divided. In the opinion of Dr. Kishoriben cause of death was shock due to haemorrhage from Jugular veins due to injury on the neck. Dr. Kishoriben did not categorically state that the injury was sufficient in the ordinary course of nature to cause death but stated that it can be said that the injury was such which was sufficient in the ordinary course of nature to cause death. Dr. Kishoriben admitted that profuse bleeding might take place because of injury to jugular veins and if immediate treatment is not given there are chances of death because of haemorrhage. She also admitted that for want of immediate treatment some other complications may also arise. ( 9 ) PROSECUTION has not led clear evidence to establish that injury was such which was sufficient in the ordinary course of nature to cause death. On the contrary Dr. Hemantkumar has stated that there were chances for survival of Jivuben. As dismissed above the size of the injury was also small and it appears that because of the cut of jugular veins which was not sutured immediately bleeding occurred and blood clotted and therefore she succumbed to the injury. ( 10 ) THE knife used by the appellant was rusted and not sharpened for use for any such purpose. Knife was sent to Forensic Science Laboratory and it was found that rustic brown stains were on the blade of the knife. ( 11 ) CONSIDERING all the aforesaid circumstances it should be held that the intention of the appellant was not to commit murder but to commit culpable homicide not amounting to murder. Causing of death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that death was likely by such act of the assailant is culpable homicide as specified in Sec. 299 Indian Penal Code. Causing of death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that death was likely by such act of the assailant is culpable homicide as specified in Sec. 299 Indian Penal Code. As provided in Sec. 300 Indian Penal Code except in the cases excepted in the said section culpable homicide is murder (i) if the act by which the death is caused is done with the intention of causing death or (ii) 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 or (iii) if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary cause of nature to cause death or (iv) 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 commit such act without any excuse incurring the risk of causing death or such injury. Culpable homicide is not murder if the act falls within the purview of any of the five exceptions specified in Sec. 300 Indian Penal Code. The instant case does not fall within any of the exceptions provided in that section. It cannot be said that grave and sudden provocation was caused to the appellant and therefore he committed the murder of Jivuben. ( 12 ) AS discussed above intention of the appellant was not to cause death of Jivuben. That is clear from the various circumstances discussed above and therefore the act of the appellant does not fall within the purview of clause Firstly of Sec. 300 or First part of Sec. 299 Indian Penal Code The appellant had not caused the injury with intention of causing such bodily injury which the appellant knew to be likely to cause the death of Jivuben. Illustrations in Sec. 300 Indian Penal Code clearly specify the circumstances in which the case falls within the purview of clause secondly of Sec. 300. Clause Secondly is therefore not applicable in the instant case. Illustrations in Sec. 300 Indian Penal Code clearly specify the circumstances in which the case falls within the purview of clause secondly of Sec. 300. Clause Secondly is therefore not applicable in the instant case. As discussed above the prosecution has not led clear evidence to establish that the injury was sufficient in the ordinary course of nature to cause death. It is also clear that it was not the intention of the appellant to cause injury which was sufficient in the ordinary course of nature to cause death and therefore clause Thirdly is not applicable. However from the circumstances as discussed above it can be conveniently held that the appellant had the intention to cause such bodily injury as was likely to cause death. Clause Fourthly also is not attracted in the instant case. Second part of Sec. 299 Indian Penal Code that the appellant caused the injury to Jivuben with the intention of causing such bodily injury as was likely to cause death is therefore applicable. The appellant therefore committed the offence of culpable homicide punishable under Sec. 304 Part I Indian Penal Code. Under Sec. 304 Part I Indian Penal Code committing culpable homicide not amounting to murder with an intention to cause death or such bodily injury as is likely to cause death is punishable with imprisonment for life or imprisonment of either description for a term which may extend to ten years and fine. If culpable homicide is committed with the knowledge that the act of the assailant is likely to cause death but without the intention 10 cause death or with the knowledge to cause such bodily injury as is likely to cause death a culprit can be convicted for the offence punishable under Sec. 304 Part II Indian Penal Code. As the appellant caused injury with a knife with the intention to cause such bodily injury to Jivuben as was likely to cause the death he should be convicted for the offence punishable under Sec. 304 Part I Indian Penal Code. ( 13 ) IN Jayaraj v. The State of Tamil Nadu AIR 1976 SC 1519 provisions of Secs. 299 and 300 Indian Penal Code came for consideration before the Supreme Court and it is observed:"here again we have to enquire further whether the case would fall under the First or Second Part of Sec. 304 Penal Code. ( 13 ) IN Jayaraj v. The State of Tamil Nadu AIR 1976 SC 1519 provisions of Secs. 299 and 300 Indian Penal Code came for consideration before the Supreme Court and it is observed:"here again we have to enquire further whether the case would fall under the First or Second Part of Sec. 304 Penal Code. ""for this purpose we have to go to Sec. 299 which defines culpable homicide. this offence consists In the doing of an act (A) with the intention of causing death or (B) with the intention of causing such bodily injury as is likely to cause death or (C) with the knowledge that the act is likely to cause death. "as was pointed out by this Court in Anda v. State of Rajasthan AIR 1966 SC 148 intent and knowledge in the ingredients of Sec. 259 postulate the existence of positive mental attitude and this martial condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contem plates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person. "" The first clause of Sec. 300 reproduces the first part of Sec. 299. Therefore ordinarily if the case comes with clause (a) of Sec. 299 it would amount to murder. However if one of the special exceptions in Sec. 300 applies the offence would be culpable homicide not amounting to murder. Such is not the case before us. "" If the act of the accused falls under clause (b) of Sec. 299 that is to say if the intended bodily injury is likely to cause death as distinguished from one which is sufficient to cause death in the ordinary course of nature Clause thirdly of Sec. 300 would not apply. Exactly this is the situation in the present case. The offence committed by the appellant would therefore fall under the First Part of Sec. 304 Penal Code. Accordingly we partly allow this appeal alter the Conviction of the appellant from one under Sec. 302 to that under Sec. 304 Part I Penal Code and reduce his sentence to 8 years rigorous imprisonment. The offence committed by the appellant would therefore fall under the First Part of Sec. 304 Penal Code. Accordingly we partly allow this appeal alter the Conviction of the appellant from one under Sec. 302 to that under Sec. 304 Part I Penal Code and reduce his sentence to 8 years rigorous imprisonment. "in similar circumstances the Supreme Court convicted the culprits for the offence punishable under Sec. 304 Part I Indian Penal Code in case of Gurdip Singh and Another v. State of Punjab 1987 (2) SCC 4. In that case one injury was sufficient to cause the death of the deceased but the Supreme Court observed we are not fully satisfied that the appellants intended to kill the deceased. In the instant case also from the circumstances discussed above it is clear that the appellant did not intend to murder Jivuben. The appeal therefore should be partially allowed. ( 14 ) WE have heard Mr. S. T. Mehta learned Additional Public Prosecutor for the respondent-State and Mr. Buddhabhatti learned Advocate for the appellant on the point of sentence. It is submitted by Mr. Buddhabhatti that considering the circumstances of the case lenient view for the sentence should be taken while Mr. S. T. Mehta has asserted for severe sentence. We think sentence of rigorous for seven years and fine of Rs. 250. 00 in default rigorous imprisonment for further three months for the offence punishable under Sec. 304 Part I Indian Penal Code would meet the ends of justice. ( 15 ) IN the result tie appeal is partially allowed. The order of conviction and sentence passed against the appellant by the learned trial Judge for the offence punishable under Sec. 302 Indian Penal Code is set aside and the appellant is convicted for the offence punishable under Sec. 304 Part I Indian Penal Code and sentence to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 250 in default rigorous imprisonment for further three months. The order of conviction and sentence passed against the appellant by the learned trial Judge for the offence punishable under Sec. 324 Indian Penal Code is confirmed. Substantive sentences to run concurrently. Conviction altered Sentence reduced. .