JUDGMENT O. P. Mehrotra, J. - This is an appeal by Chet Ram who was convicted under S. 302, I.P.C. and was sentenced to imprisonment for life by the First Additional Sessions Judge, Mathura by his order dated 11-8-1977. 2. This occurrence took place on 29-9-1976 at about 12 noon near the paddy field of complainant Har Prasad alias Malkhan in village Sakarba, P. S. Goverdhan, District Mathura. It is alleged that the complainant along with his uncle Pati Ram (deceased) and his brother-in-law Purshottam was sitting near the Rahat (Persian-wheel) fixed in his Chak near the canal. At about noon, they noticed the bullocks of the appellant grazing paddy field of the complainant. The complainant and his uncle Patiram drove out the bullocks out of the field and started taking them towards cattle-pound. Just then appellant Chet Ram arrived running from the side of his well with an axe in his hand and hurling abuses and stopped them from taking the bullocks to the cattle-pound. Patiram told him that his bullocks were grazing his field off and on and that he would certainly take them to the cattle-pound. Thereupon the appellant struck a blow with the back portion of the axe, which struck Patiram on the left side of hypochondrium. Patiram also gave a few blows to the appellant with the Paina, which he was carrying, in his self-defence. The complainant and Purshottam Lal snatched the axe from the appellant who ran away from the spot. They laid Patiram on a cot but soon after he succumbed to his injuries. The complainant left the dead body on the spot and went to the police station, Goverdhan, which was at a distance of about 2 miles from the spot, along with the axe and lodged first information report Ex. Ka-1 at 1.30 p.m. A case under S. 302, I.P.C. was registered and after the investigation by S.O. Indrajeet Singh (P.W. 5), the appellant was sent up for trial. The appellant was arrested on the next day at about 10.30 a.m. from near the bus-stand of Goverdhan. 3. The autopsy on the dead-body of Patiram was conducted by Dr. Ka-1 at 1.30 p.m. A case under S. 302, I.P.C. was registered and after the investigation by S.O. Indrajeet Singh (P.W. 5), the appellant was sent up for trial. The appellant was arrested on the next day at about 10.30 a.m. from near the bus-stand of Goverdhan. 3. The autopsy on the dead-body of Patiram was conducted by Dr. M. Hussain (P.W. 4) on 30-9-1976 at 4 p.m. He found the following ante-mortem injuries on the dead body : Abraded contusion, abraded in 2 and non-abraded in 2" upward and " down- ward from the abraded part and the total length of the contusion was 6" X 13/4". The contusion was found on the left side of hypochondrium outer part extending up to abdomen in left lateral part of the level of 8th to 11th ribs and lower to 7th rib and extending down abdomen. Internal examination revealed that spleen was ruptured under injury No. 3 and there were three tears 2" X ", 2" X " and 1" X " - two on front border and one on lower margin. The death was due to shock and haemorrhage as a result of the injury. The doctor further stated that the injuries were sufficient in the ordinary course of nature to cause death. 4. The prosecution examined comic lainant Har Prasad alias Malkhan (P.W. 1) and Prabhati Lal (P.W. 2) as eye-witnesses of this occurrence, besides formal witnesses. 5. The accused pleaded not guilty. He has not disputed the time and place of the occurrence and there is also no dispute that the occurrence took place when his bullocks had caused damage to the crop of the deceased. He, however, denied that the occurrence took place in the manner alleged by the prosecution. On the other hand, his case was that his bullocks had damaged the crop of Patiram, whereupon Patiram drove away the bullocks and while he and his mother were taking the cattle to the village, Pati Ram and his brother Shyam Lal met on the way and they first assaulted him (appellant) and thereafter assaulted his mother. Whereupon he gave a blow from the Hooda of his Lathi in self defence which struck Patiram on the abdomen. According to him, he had gone to lodge a report at the police station but his report was not recorded and he was arrested. He examined two witnesses in defence. Whereupon he gave a blow from the Hooda of his Lathi in self defence which struck Patiram on the abdomen. According to him, he had gone to lodge a report at the police station but his report was not recorded and he was arrested. He examined two witnesses in defence. Amar Singh (D.W. 1) supported the defence version of the occurrence while Dr.T. N. Goyal (D.W. 2) had examined Smt. Chandrakala mother of the appellant in Civil Hospital, Mathura on 4-10-1976 and found the following injury (vide Ex. Kha-2) : A bruise 4" X 3.5" in size, bluish in colour on the postero-lateral aspect of the middle of the left thigh. The injury was simple caused by some blunt object, duration six days. 6. Accused Chet Ram was medically examined by Dr. Arvind Kumar on 30-9-76 at 6.30 p.m. and the following injuries were found on his person : 1. Scabbed wound of " X " on the left side head and leg 21/2" above left ear. 2. Contusion of " X " on the back of the left little finger (with old amputated proximal Phalanx). 3. Traumatic swelling of 31/2" X 21/2" on the right and inner back on the lower th of the forearm and above the wrist. (This injury was kept under observation). 4. Scabbed abrasion of " X " on the right and middle of the leg. The injuries were caused by blunt object, except injury No. 1 of which weapon could not be ascertained due to scabbing wound with about one day old (vide E.Kha-1). 7. The learned Sessions Judge believed the prosecution version and rejecting the counter-version set up by the accused, he held that the occurrence had taken place in the manner alleged by the prosecution and that the theory of the self defence set up by the accused had not at all been established. He further held that the case was covered within clause 'thirdly' of S. 300, I.P.C. and as such the appellant was held guilty of committing murder. Accordingly he convicted and sentenced the appellant as mentioned above. 8. The learned counsel for the appellant contended that in the first place the prosecution had failed to prove its case by reliable and trustworthy evidence and that the appellant had caused the blow which proved fatal in exercise of his right of private defence. Accordingly he convicted and sentenced the appellant as mentioned above. 8. The learned counsel for the appellant contended that in the first place the prosecution had failed to prove its case by reliable and trustworthy evidence and that the appellant had caused the blow which proved fatal in exercise of his right of private defence. Secondly his contention was that even if it was held that the occurrence had taken place in the manner alleged by the prosecution, the appellant could not be held guilty for the offence of murder punishable under S. 302, I.P.C. and that at the most he could be said to have committed an offence punishable under Part II of S. 304, I.P.C. 9. Having heard the learned counsel for the appellant and the learned Government Advocate and having carefully gone through the entire material on record; we do not find any merit in the first contention raised on behalf of the appellant. The prosecution case was proved beyond reasonable doubt by the testimony of the two eye-witnesses examined by the prosecution supported by medical evidence and other attending circumstances. P.W. 1 Har Prasad alias Malkhan was an eye-witness of this occurrence and he had promptly lodged the report without any delay. He had no enmity or cause for grievance against the appellant. He has stood the test of cross-examination and there is nothing to show that he was not present at the spot or that he was not telling the truth. P.W. 2 Prabhati Lal is not named in the first information report, yet the fact remains that he was examined by the investigating officer along with other witnesses on the same day, on which the occurrence had taken place. His statement shows that he was related to the deceased as well as to the appellant, inasmuch as his grandfather and the grandfather of the appellant were real brothers. He too had no enmity with the appellant and we see no good ground why be would have come forward to implicate the appellant in this manner. There were no material contradictions or discrepancies in the statements of the prosecution witnesses and the learned trial Court who had the additional advantage of noting the demeanour has placed reliance on their testimony and in the absence of cogent reasons, we see no good ground to take a different view. 10. There were no material contradictions or discrepancies in the statements of the prosecution witnesses and the learned trial Court who had the additional advantage of noting the demeanour has placed reliance on their testimony and in the absence of cogent reasons, we see no good ground to take a different view. 10. As already mentioned above, the factum that the occurrence took place has also the time and place of occurrence are not disputed. The appellant also admits that his bullocks had caused damage to the crop of the deceased. The appellant, however, alleges that while he and his mother were taking the bullocks to the village, they were attacked by deceased Patiram and his brother Shyam Lal on the way and it was in self defence that he gave a blow with Hooda of his Lathi to Partiram, as a result of which he died. It is difficult to believe that the appellant and his mother were quietly taking the bullocks towards the village when they were assaulted by deceased Chet Ram and his brother Shyam Lal. As a matter of fact, the occurrence took place when' the deceased was taking the bullocks towards the cattle-pound whereupon the appellant arrived at the spot with an axe in his hand stopped the deceased from taking the bullocks to the cattle-pound and when the deceased insisted that he would certainly take them to the cattle-pound as they were causing damage to his field off and on, the appellant gave a blow with the back portion of the axe, which proved fatal. The testimony of D.W. 1 Amar Singh does not inspire confidence and the same was rightly rejected by the learned trial Court. No first information report was lodged by the accused nor any attempt to report the matter to the higher authorities appears to have been made. It is not disputed that after receiving the axe blow the deceased gave a few Paina blows to the appellant causing certain minor injuries. We do not find any force in the contention that the deceased could not have given Paina blows after receiving a blow from the back portion of the axe on his abdomen. No such question was put to Dr. M. Hussain (P.W. 4). We do not find any force in the contention that the deceased could not have given Paina blows after receiving a blow from the back portion of the axe on his abdomen. No such question was put to Dr. M. Hussain (P.W. 4). Common experience shows that when the injury is fresh, the injured has sufficient vitality to use a lathi or Paina although after some time, he may fall down and die. The injury found by Dr. Goyal (D.W. 2) on the person of the appellant's mother was only a bruise and this injury had been examined after six days of this occurrence. As such it is difficult to connect this injury with this occurrence and the possibility that this injury was manufactured for the purposes of this case or that the same was received in some other connection cannot be ruled out. Dr. Gyoal stated that the injury could also have been caused by a fall; as such we are not prepared to hold that the appellant's mother received this injury during the course of this occurrence. In our opinion, the learned trial Court was perfectly justified in rejecting the defence theory of self-defence and in holding that the prosecution had succeeded in proving its case beyond reasonable doubt. 11. We have now to consider as to what offence has been made out against the appellant. The learned Sessions Judge has held that the act of the appellant was fully. covered by clause 'thirdly' of S. 300, I.P.C. He placed reliance on the case of Virsa Singh v. State of Punjab, ( AIR 1958 SC 465 ), in which a single injury had been caused on the abdomen as a result of spear thrust and the medical evidence indicated that three coils of intestines had come out and that the injury was sufficient in the ordinary course of nature to cause death. It was held that the case was covered by clause 'thirdly' of S. 300, I.P.C. So that the accused was held guilty for the offence of murder punishable under S. 302, I.P.C. 12. It was held that the case was covered by clause 'thirdly' of S. 300, I.P.C. So that the accused was held guilty for the offence of murder punishable under S. 302, I.P.C. 12. Shri Kesho Sahai, learned counsel for the appellant, however, referred to certain subsequent pronouncements of the Hon'ble Supreme Court and contended that even accepting the prosecution case, the act of the appellant would not fall under clause' thirdly' of S. 300, I.P.C. and at the most the appellant could be held to have committed the offence punishable under Part II of S. 304, I.P.C. He referred to certain subsequent pronouncement in which the Hon'ble Judges of the Supreme Court while accepting the principles laid down in Virsa Singh's case ( AIR 1958 SC 465 ) (supra) have explained the import of that decision and have distinguished the same on the facts of the cases before them. There can be no doubt regarding the law laid down by the Supreme Court in Virsa Singh's case (supra). Each case has, however, to be decided on the basis of the facts of that particular case and on the evidence adduced in each case. 13. In Harjinder Singh v. Delhi Administration, AIR 1968 SC 867 the accused caught hold of the deceased when he tried to intervene and gave a single knife blow on the upper part of the thigh of the deceased while he was in crouching position. It was held that it could not be said with definiteness that the appellant aimed the blow at that particular part of the thigh knowing that it would cut artery. The Supreme Court held that it could not be said that the accused intended to cause injury on that particular part of the body and consequently converted the conviction of the appellant to one under S. 304, I.P.C. Part 1. 14. In Randhir Singh v. State of Punjab, AIR 1982 SC 55 , the accused who was a young college boy of 181/2 years gave a Kassi blow on the head of the deceased without premeditation after some altercation had taken place. It was held that the case was not covered under clause 'thirdly' of S. 302, I.P.C. as it could not be said that he accused intended to cause that particular injury. 15. It was held that the case was not covered under clause 'thirdly' of S. 302, I.P.C. as it could not be said that he accused intended to cause that particular injury. 15. In Kulwant Rai v. State of Punjab, AIR 1982 SC 126 , there was a short altercation followed by assault in which the accused gave a single dagger blow which landed on the epigastrium area. There was no prior enmity. It was held that clause 'thirdly' of S. 300, I.P.C. was not attracted because it cannot be said that the accused inflicted that particular injury which was ultimately found to have been inflicted. 16. In Jagtar Singh v. State of U.P., AIR 1983 SC 463 , a quarrel took place on the spur of the moment. There was exchange of abuses and then the accused gave single knife blow which landed on the chest of the deceased who succumbed to his injury after a short time. The medical evidence indicated that the injury was sufficient in the ordinary course of nature to cause the death. It was held that it could not confidently be said-that the accused intended to cause that particular injury which is shown to have caused death. 17. In Tholan v. State of Tamil Nadu, AIR 1984 SC 759 , there was no prior enmity or malice, the incident occurred on the spur of moment in which the accused gave single knife blow to the deceased who died. The medical evidence revealed an incised gaping wound on the right side of chest with fracture of 5th and 6th ribs and internal injury to vital organs like heart and lung and that the injury was sufficient in the ordinary course of nature to cause death. It was held that the requisite intention cannot be attributed to the accused. Consequently, the conviction of the appellant was altered to one under Part II of S. 304, I. P. C. 18. In the instant case, the appellant had no enmity with the deceased nor he bore any malice or ill-will against him. The dispute developed at the spur of the moment when the accused stopped the deceased from taking his bullocks to the cattle-pound, while the deceased insisted that he would certainly do so. In the instant case, the appellant had no enmity with the deceased nor he bore any malice or ill-will against him. The dispute developed at the spur of the moment when the accused stopped the deceased from taking his bullocks to the cattle-pound, while the deceased insisted that he would certainly do so. The accused, who was a young man of about 18 years, gave single blow from the back side of the axe which landed on the abdomen region causing abraded contusion with rupture of spleen, as a result of which Patiram died. It is correct that the accused came running with an axe from the side of his well when he saw the deceased taking his bullocks to the cattle-pound. However, there is nothing to show that he had brought or picked up the axe, especially with the specific object of assaulting. It may be that he was already working with, the axe when he came to know or saw the deceased taking his bullocks towards the cattle-pound, so that he rushed to the spot with the axe in his hand and stopped the deceased from taking the bullocks to the cattle-pound and when the deceased insisted on taking the bullocks, he, on the spur of the moment, gave a fatal blow. It is worth mentioning that he did not strike the axe with its sharp side nor gave the stroke on, the head, of the deceased but took precaution to strike with the back portion of the axe and that too on the abdominal region. It appears that it was just a chance that the blow landed just above the spleen causing rupture of spleen, as a consequence whereof Patiram died. It is true that the injury proved fatal and the doctor was of the opinion that the same was sufficient in the ordinary course of nature to cause death. However, having regard to the totality of the circumstances narrated above, we are of the opinion that it cannot be said that the appellant intended to cause death or that he intended to cause that particular injury. In other words, we do not think that the injury found to be present on the body of the deceased was an injury that was intended to be inflicted. In other words, we do not think that the injury found to be present on the body of the deceased was an injury that was intended to be inflicted. As such the case would not be covered within clause 'thirdly' of S. 300, I.P.C. and hence the offence committed by the appellant would not be murder but would be only culpable homicide not amounting to murder punishable under S. 304, I.P.C. 19. As regards the question as to whether the offence committed by the appellant would fall within Part I or II of S. 304, I.P.C., there can hardly be any doubt that on the facts found to have been established, the appellant can be convicted only under Part II of S. 304, I.P.C. The first part of S. 304, I.P.C. applies to cases where act by which death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death, but the offence is not of murder by virtue of the fact that it is covered within one of the five exceptions to S. 300, I.P.C. In other words, Part I of S. 304, I.P.C. can be applied only where the offence is not murder by reason of its falling within one of the exceptions to S. 300, I.P.C. The present case does not fall within any of the five exceptions to S. 300, I.P.C. Asa matter of fact, the offence committed by the accused was not 'murder' because the case was not covered within any of the four clauses of S. 300, I.P.C. and consequently the offence committed by him was simply culpable homicide which does not amount to murder. As already shown above, we do not agree with the view of the learned trial Court that the case was covered within clause 'thirdly' of S. 300, I.P.C. because in view of the totality of the circumstances narrated above, it cannot be said that the appellant intended to cause death or that he intended to cause the particular injury found on the person of the deceased. However, the appellant must be attributed knowledge that he was likely to cause injury which was likely to cause death. Consequently, the case would fall under part II of S. 304, I.P.C. 20. Accordingly, the appeal is partly allowed. However, the appellant must be attributed knowledge that he was likely to cause injury which was likely to cause death. Consequently, the case would fall under part II of S. 304, I.P.C. 20. Accordingly, the appeal is partly allowed. The conviction of the appellant for an offence under 5.302, I.P.C. and the sentence of imprisonment for life are set aside; instead, the appellant is convicted for an offence under Part II of S. 304, I.P.C. and he is sentenced to suffer rigorous imprisonment for five years. The appellant who is on bail shall be taken into custody and sent to jail to serve out the sentence awarded by this Court.