JUDGMENT Kotwal J. - A family dispute over the property between uncle and nephew took an unexpected but a tragic turn when the uncle lost his life as per the prosecution case. A small family lived at village Netarde in Sawantwadi taluka of Sindhudurg District. They owned Cashewnut plantation. The house is divided into three parts and all the three parts are occupied respectively by uncle -the deceased, nephew-the accused and one Sahadev. However, Sahadev has constructed his own house and had allowed the accused to use that portion of his house. There was dispute between the uncle and nephew over cashew-nut plantation. Though there was partition between uncle and father of accused still it was oral partition and it was not mutated in the record of rights. The accused was entertaining a belief that uncle in his absence was committing theft of cashew-nuts by encroaching on his land, This is more so because accused used to be serving at Dehu Road and therefore, it was easy for uncle to pluck the cashew-nuts in the plantation which fell to the share of the accused. On the basis of this grievance and belief the accused entertained a grudge which resulted in the incident that occurred on 3rd April 1984. 2. The incident is divided into two parts. The accused at about 1 p.m. or so went to the house of the deceased and started abusing him addressing uncle as thief. The uncle Raghunath was not present as he had gone to take bath in the streamlet. Laxmibai-wife of Raghunath who was present tried to pacify the accused and asked him as to why he was calling her husband as thief. The accused conveyed to her that he would continue to call him a thief obviously because he believed that Raghunath was plucking the cashew-nuts nefariously. By that time Raghunath returned to the house. The accused continued abusing him but he was pacified. However, the accused threatened that he would see to him if Raghunath again goes to cashew-nut plantation. The incident ostensibly closed at that. 3. However, it was not the end of the matter. At about 4 p.m. Raghunath along with his family members including wife Laxmibai and daughter Kunda and nephew Pradeep-complainant herein and who is brother of the accused started going to the cashew-nut plantation. The incident ostensibly closed at that. 3. However, it was not the end of the matter. At about 4 p.m. Raghunath along with his family members including wife Laxmibai and daughter Kunda and nephew Pradeep-complainant herein and who is brother of the accused started going to the cashew-nut plantation. They were intercepted by the accused in the way, who questioned Raghunath as to why he was going to the cashew-nut plantation. It is alleged that all of a sudden the accused who was carrying scythe, assaulted Raghunath with the said instrument on his neck due to which Raghunath was immobilised and collapsed on the ground. Pradeep, who was at some distance behind, heard the shouts and rushed to the spot and scolded the accused who in turn tried to rush at Pradeep, but Pradeep prevented him by pelting stones as a result of which accused left the spot and went away. 4. Raghunath had fallen on the ground sustaining bleeding injuries. Pradeep then went to the Police Patil Ramchandra Gavas and gave information and brought the Police Patil on the scene. However, by that time Raghunath had succumbed to the injuries. The Police Patil was little indisposed and, therefore, asked Pradeep to go to the police station in pursuance of which Pradeep then went to Banda Police Station, which is located at about 3 kms from the village. He went on bicycle and reached there at about 9-30 p.m. where his complaint Exhibit 12 was recorded and offence was registered. 5. Investigation commenced. Police arrived on the scene. A watch was kept by the police patil at the scene of offence. The inquest was drawn on the next morning along with panchnama. Statements of various witnesses were recorded. Dead body was sent for autopsy which was carried by Dr. Holikatti. who noticed that there was serious injury on the neck causing damage to vital organ underneath including cutting of veins on account of which there was severe bleeding and haemorrhage and death was due to shock on account of that Injury. The accused was not found in that village but he was traced on the next morning at the house of his father-in-law in village Chendel where he was put under arrest. The prosecution further alleged that after incident accused washed the scythe and Baniyan which was noticed by Jyoti, the married daughter of the deceased Raghunath. The accused was not found in that village but he was traced on the next morning at the house of his father-in-law in village Chendel where he was put under arrest. The prosecution further alleged that after incident accused washed the scythe and Baniyan which was noticed by Jyoti, the married daughter of the deceased Raghunath. This very Baniyan was on the person at the time of his arrest, which was attached under panchnama. At the instance of the accused scythe was discovered from one put while the towel was discovered from his own house and both the articles were attached under the Panchnama. 6. After completing the investigation accused was charge-sheeted and ultimately was tried before the learned Sessions Judge, Batnagiri in Sessions Case No. 28 of 1984 for an offence under section 302 of the Indian Penal Code. 7. Total denial is the defence in short canvassed by the accused at the trial. He has denied all the adverse allegations about his involvement in either of the incident. According to him he was at the house of his father-in-law and did not know anything about the incident. He denied the discovery of the articles. According to him he has been falsely implicated by the witnesses on account of enmity. 8. The learned trial Judge accepted the prosecution evidence in its entirity and held that the act was committed by the accused. The learned trial Judge also held that the offence would squarely fall under section 302 of the Penal Code. In keeping with these findings he convicted the appellant-accused under section 302 of the Penal Code and sentenced him to imprisonment for life by his order dated December 13, 1984 which is being impugned in this appeal on behalf of the appellant. 9. Smt. Paranjape, the learned counsel appearing on behalf of the appellant mainly contended that the direct evidence is not trust worthy more so when admittedly they have inimically deposed appellant the accused. In the alternative she contended that in any event the offence would be sealed down to one under sect ton 304 Part II of the Penal Code as the accused could not have intended to cause murder of Raghunath or even to cause such bodily injury with that intention. In the alternative she contended that in any event the offence would be sealed down to one under sect ton 304 Part II of the Penal Code as the accused could not have intended to cause murder of Raghunath or even to cause such bodily injury with that intention. According to her, there are ample indication internally that Raghunath was misusing his position and situation due to absence of accused from the village and there being no fencing to the respective shares of the parties and thus was committing theft of cashew-nuts belonging to the accused. Shri Shinde, the learned Public Prosecutor, in support of the order of conviction adopted the Same reasons as assigned by the learned trial Judge as according to him direct evidence contains no deficiencies or infirmities and the offence would squarely fall under section 302 of the Penal Code having regard to the weapon used and spot selected and damage caused. 10. In so far as authorship of the crime is concerned, the prosecution mainly relied on the testimony of three witnesses Pradeep (P.W. 2) who is brother of the accused Laxmibai (P.W. 4), widow of the deceased and Kunda (P.W. 5) the daughter of the deceased. Out of this bunch Laxmibai and Kunda have actually witnessed the incident, though Pradeep had not done so. He immediately rushed to the spot. Pradeep deposes about the first incident. According to him as also according to Laxmibai and Kunda by about 1 p.m. in the afternoon accused came to the house of Raghunath and addressed him as a thief. Raghunath was not at home. Laxmibai tried to pacify him but the accused insisted that he would always call Raghunath as thief. Raghunath came in between and accused abused him calling him as a thief. The accused thereafter alleged to have levelled a threat that he would show to Raghunath if he again goes to the cashew-nut plantation. We find that there is hardly any cross-examination worth the name on this aspect of any of these three witnesses This finds place dearly in the complaint, Exhibit 12, which was lodged practically immediately at the police station by Pradeep. The statements of Laxmibai and Kunda were recorded on the very morning on the arrival of police. There are no material omissions of contradictions in their evidence with reference to their police statements or inter-se in their substantive evidence. The statements of Laxmibai and Kunda were recorded on the very morning on the arrival of police. There are no material omissions of contradictions in their evidence with reference to their police statements or inter-se in their substantive evidence. In fact common pattern as reflected in this case is that there is hardly any effective cross-examination of these three witnesses on the most crucial point, though the cross-examination is directed on the periphery and especially for carving out strained relationship between the parties and in order to suggest that witnesses have motive to falsely Implicate the accused and that Raghunath was committing theft of cashewnuts from the plantation belonging to accused. We, therefore, find absolutely no reason to discard the sworn testimony of these three witnesses, merely because they ate related to the deceased that by itself is no ground, though only caution is that their evidence should be closely scrutinized. In the nature of things there could not be any independent evidence at that time. Even after close scrutiny we do not find any reason worth the name to discard their testimony. The first incident, therefore, is properly established. 11. As regards to main incident that followed, Pradeep no doubt does not figure as eye-witness. According to him, after taking lunch round about 3 O’clock or so Raghunath and his family members started going to plantation and he also accompanied them. On the way he met one of his friends and was chitchatting with him by which time the other persons had gone ahead. He heard the shouts of Kunda and he reached to the spot. He saw the accused holding scythe that was stained with blood and Raghunath had fallen on the ground with bleeding injury on the neck. He scolded accused when the accused tried to rush at him but he prevented him by hurting stones at the accused. He then went to the Police Patil Ramchandra Gavas but since Ramchandra was indisposed, at his instance he went to Banda Police Station and lodged his complaint Exhibit 12 at about 9.30 p.m. 12. Laxmibai poses as an eye-witness and has given evidence more or less on the same lines. He then went to the Police Patil Ramchandra Gavas but since Ramchandra was indisposed, at his instance he went to Banda Police Station and lodged his complaint Exhibit 12 at about 9.30 p.m. 12. Laxmibai poses as an eye-witness and has given evidence more or less on the same lines. According to her when they were proceeding to the cashew-nut plantation, accused emerged on the scene and intercepted the deceased and asked him as to why he was going to the plantation, and all of a sudden he took out the scythe in his hand and inflicted one blow on the neck of Raghunath who collapsed on the ground. They all shouted and Pradeep who was little behind Imbed to the spot, when accused tried to assault him also but was prevented because of the pelting of stones the Police Patil came on the scene. Her statement was recorded on the very next morning. 13. The last witness is Kunda (P.W. 5) daughter of the deceased and she has given evidence more or less on the same pattern, asserting that accused emerged on the scene and unexpectedly took out the scythe in his band and inflicted one blow on the neck of Raghunath her father who collapsed on the ground. Thereafter Pradeep came and accused tan away. Her statement was also recorded soon after the arrival of the police. 14. In so far as Pradeep is concerned, he has candidly admitted that his relations with the accused were quite sustained and there was enough material in that behalf. Thus for instance, when both the brothers were staying at Dehu Road one room was allotted in the name of accused while the other in the name of younger brother and the witness admits that he was trying to get exclusive possession of that room, which was allotted to the share of the accused. He further admits as: “...On this count also I was having quarrel with my brother. It is true that I assaulted accused and accused had lodged complaint with the police." He admits that he was warned by the police not to commit breach of peace. He further admits as: “...On this count also I was having quarrel with my brother. It is true that I assaulted accused and accused had lodged complaint with the police." He admits that he was warned by the police not to commit breach of peace. He further admitted as: "Since distribution of rooms I am in Cross terms with the accused." He has taken active part in the investigation also because it is he, who took the police to the house of father-in-law of the accused and got the accused arrested. It is he, who was present all along when various panchnamas were drawn and alleged discoveries were made. He further admits as: “It is true that my uncle and myself were extracting juice of cashew fruits." He also admits that his uncle was prosecuted for house-breaking. Inspite of all these features, it is interesting to note that in so far as the main incident is concerned there is practically no cross-examination of the witness. It is true that he has not seen the incident as such, but his evidence is relevant to the extent that on hearing the shouts of Kunda he rushed to the spot and saw Raghunath collapsed on the ground with bleeding injury to the neck and accused was standing there holding scythe in his hand which was profusely stained with blood. He scolded the accused and felted stones at the accused in order to prevent accused to rush at him. His evidence therefore, goes a long way to corroborate the direct testimony of Laxmibai and Kunda when they asserted that they actually saw the accused assaulting Raghunath with the scythe. The arrival of Pradeep on the spot was practically immediate and therefore the deceased lying on the ground with the injury and accused holding blood stained scythe are the two features which have their own compelling effect. As stated in the absence of any cross-examination inspite of strained relations, we are unable to persuade ourselves to discard his evidence outright even after close scrutiny bearing in mind that he had some motive and grudge against the accused. He is corroborated by his own complaint Exhibit 12 which was lodged soon after the incident when the entire story finds place therein. He did not improve upon his case or it was not difficult for him to falsely allege that he bad actually seen the assault. He is corroborated by his own complaint Exhibit 12 which was lodged soon after the incident when the entire story finds place therein. He did not improve upon his case or it was not difficult for him to falsely allege that he bad actually seen the assault. His evidence to that extent can, therefore, be safely accepted. 15. In so far as Laxmibai is concerned, we have indicated that she has positively asserted that the accused assaulted her husband with the scythe. There is nothing much in the cross-examination of this witness in so far as main incident is concerned. She admits that accused was not keeping good relations with his brother Pradeep. According to her Raghunath was also carrying scythe which was necessarily while going to the plantation. The only suggestion is made to her that no such incident occurred. In the absence of any cross-examination worth the name we do not find any reason to discard her testimony. There are no contradictions or omissions either with reference to her police statement or with reference to the evidence of other witnesses. She stands the test of close scrutiny being the widow of the deceased. Her statement was recorded immediately. 16. As regards Kunda (P. W. 5) we are surprised to find that there is absolutely no cross- examination whatsoever on the main incident when she asserted that in her presence accused assaulted the deceased with the scythe. We are rather surprised to find the pattern followed in this case that the defence perhaps were not bold enough to enter the arena directly by cross-examining the witnesses about their assertion on the main incident and the entire cross-examination is on the other point on the periphery regarding the enmity and such incidental matters. In so far as Kunda is concerned, it is most surprising that not a single question is asked to her in her cross-examination about her assertion regarding the main incident. Consequently therefore we do not find a single reason to depart from the finding of the learned trial Judge who was pleased to place reliance on the testimony of these three witnesses. Even though they are related witnesses and even though because of that their evidence requires closer scrutiny we find that they have successfully withstood that scrutiny and they are corroborated by further circumstances. 17. Even though they are related witnesses and even though because of that their evidence requires closer scrutiny we find that they have successfully withstood that scrutiny and they are corroborated by further circumstances. 17. As stated Laxmibai and Kunda are corroborated by P.W. 2 Pradeep, the complainant who rushed to the spot. The complainant is corroborated by his own complaint which is lodged immediately after the incident. The panchnama of the scene of offence at Exhibit 8 mentions the finding of towel soaked with blood full Bush Shirt also stained with blood, one wooden hook with cotton string, one pair of sleeper being found on the spot and this admittedly belonged to the deceased. The earth was collected and Chemical Analyser's report shows that all these articles were stained with blood with the same group as that of the deceased. The scene of offence is therefore, fixed as deposed to by all the witnesses and it is on the way to plantation. 18. We have then on record the medical evidence of Dr. Holikatti, who carried the autopsy. He noticed one incised wound on the left lateral side of the neck little away from midline, anteriorly 3.5 c.m. from upper border of scapula, posteriorly 3.5 c.m, from clavicle below, 9 c.m. from ear above. It was a spandule shape wound. The depth of the wound at different places was between 7 and 8 c.m. while the length was about 10 c.m. and 4.5 cm. This affords corroboration to the positive assertion of direct witnesses about the nature of assault. The injury was caused on the neck as deposed to by all the witnesses. The wound was spandule shape and therefore user of scythe is also established. 19. Police Patil Ramchandra has been examined as P.W. 6, who has fully supported the evidence of Pradeep when Pradeep told him that his brother has assaulted uncle. His statement was also recorded soon after the incident. Merely because he did not draw Khabari report that by itself is no ground to discard his testimony. He directed Pradeep to go to the police station immediately and lodge his complaint. He kept watch on the scene of offence and on the dead body till the arrival of the police at about 2 a.m. on the next morning. 20. Merely because he did not draw Khabari report that by itself is no ground to discard his testimony. He directed Pradeep to go to the police station immediately and lodge his complaint. He kept watch on the scene of offence and on the dead body till the arrival of the police at about 2 a.m. on the next morning. 20. In view of this evidence there is hardly any scope to doubt the veracity credibility and acceptability of the account given by the three eye-witnesses attributing authorship of the assault to the accused. The learned trial Judge was, therefore, fully justified in accepting that part of the evidence bolding the accused responsible for inflicting that blow on the person of Raghunath. 21. The prosecution wanted to rely on two item of evidence as corroboration. The first is reflected through the evidence of Jyoti (P.W. 7), who is married daughter of Raghunath. According to her, she had come from Bombay on the earlier day and was at her house when the father and others left for plantation. At about 5 30 p.m. or so the accused came near the hut and she saw him washing scythe which was in his hand and was also washing Baniyan which was on his person. He kept the scythe on the platform or one of her house and left away. In our opinion, it would be rather risky to accept the evidence of this witness for obvious reason. She admits that inspite of her father having been assaulted and in spite of her having seen such vital incident when accused tried to wash the weapon of assault she did not bother to disclose to anyone till her statement was recorded which was two days after the incident i.e. on 6th. Observing eloquent silence on this vital point is obviously vital against her. She did not even disclose to anyone. Her conduct belies her case and it would not be proper to accept her claim on its face value. We, therefore, deem it proper to exclude her account. 22. The prosecution then relied on the recovery of Baniyan at the time of arrest of the accused from his person. He was arrested at the house of his father-in-law on the next day. In the first instance it would be difficult to accept that he would be wearing the same Baniyan all throughout till arrival of police. 22. The prosecution then relied on the recovery of Baniyan at the time of arrest of the accused from his person. He was arrested at the house of his father-in-law on the next day. In the first instance it would be difficult to accept that he would be wearing the same Baniyan all throughout till arrival of police. Further the Baniyan which was sent to Chemical Analyser did not exhibit any blood stains at all. We have already expressed our doubt about the credibility of story that blood stains on the Baniyan were tried to be washed out as seen by Jyoti. Therefore, this Baniyan though it was attached looses its significance. 23. The prosecution then relied on the discovery scythe and towel at the instance of the accused. The evidence of Chandrakant Gavas (P.W. 8) is relevant in that behalf. This discovery is alleged to have been made sometime in the afternoon on the 4th April, 1984. Towel is alleged to have discovered after the memo was recorded from the residential room of the accused himself while the scythe is alleged to have been discovered from the thatched roof of the hut, which was by the side of the house of father-in-law of the accused. In so far as this house is concerned it is not established that it is really in occupation of the accused and it is also not shown as to from where this scythe was produced. The owner of the house has not been examined. All this apart, it looses its significance on account of two features. The first is that Chemical Analyser's report shows that no blood stains were detected. However, there is further more formidable difficulty in accepting the evidence of discovery because of one statement made by Jyoti in her evidence. According to that witness after scythe was washed just close to her house on that evening the accused kept the scythe on the platform or one of her house and left it behind and went away. She does not say that accused came back any time and removed the scythe. If the article was left there then it is difficult to accept that it could be discovered again at different place. This really casts a doubt the veracity of this evidence. She does not say that accused came back any time and removed the scythe. If the article was left there then it is difficult to accept that it could be discovered again at different place. This really casts a doubt the veracity of this evidence. Any way it is established that many of such villagers do possess SC the and even if accused was in possession of scythe and which had no blood stains it would not be of much consequence. The same follows as regard to the towel because it had also no blood stains and it is common blood article. Under the circum stances, we are not inclined to place reliance on the evidence of recovery of Baniyan and alleged discoveries of scythe and towel. 24. Even if that evidence is excluded, still for the reasons already assigned and in view of the discussion hereinabove the direct evidence of three witnesses corroborated by various circumstances is adequate enough to establish that blow was inflicted by the accused on the person of Raghunath due to which Raghunath ultimately succumbed. 25. As regards thee homicidal nature of death there is hardly any controversy. The inquest panchnama supports that plea. More over the evidence of Medical Officer Dr. Holikatti (P.W. 3) who is supported by Post Mortem Notes at Exh. 14 established that there was one external injury quite substantial in nature on the neck with corresponding internal damage when according to doctor there was fracture of the first rib on the left side and some of the structures were cut whereas some muscles, vessels and veins were also cut and according to him death was due to shock on account of hemorrhage which was due to rupture of large vessels over left side of the neck, caused by that injury. This is not disputed by the defence. 26. This leads us to the last question which was argued as an alternate plank by Shrimati Paranjape, the learned counsel, about the nature of offence. It is true that injury was caused on vital part like neck when internal organs like veins and vessels were cut. the depth of injury is also not insignificant and we also cannot overlook that Raghunath succumbed to the injury practically soon after the assault. It is true that injury was caused on vital part like neck when internal organs like veins and vessels were cut. the depth of injury is also not insignificant and we also cannot overlook that Raghunath succumbed to the injury practically soon after the assault. However, there are certain features which are unfortunately over looked by the learned trial Judge and which are rightly pressed into service by Smt. Paranjape, the learned counsel, on behalf of the appellant. The evidence on record and essentially that of Pradeep makes the situation quite clear that everything was not proper and fair on the part of the uncle, though on the contrary there are indications that taking advantage of the absence of the accused from the village on account of his service at Dehu Road the uncle used to pluck the cashew nut fruits from that part of plantation which came to the share of the accused; though there was partition it was oral and it was not mutated in the record of rights. Further there was no boundaries as such demarcated by any fencing or any wall. Pradeep admits as: "It is true that in our absence my uncle and his family were guarding the cashewnut plantation. It is true that deceased Raghunath was always demanding the large share in the cashewnut plantation, as he was guarding the plantation. I had personally never had an objection to give a bigger share to my uncle, but the accused did not like the same. It is true that the accused used to insist that he would guard the plantation which is allotted to the share of his father and he i.e. deceased should derive the benefit out of it. It is true that little prior to the incident, the accused bad gone to the place of his parents in law along with his wife. It is true that when accused had left to his father-in-law's house, my uncle and his children had already plucked many cashew-nuts and fruits from the trees. It is true that the total quantity which my uncle was getting was 3 to 4 kgs. per day from cashew nut trees. It is true that my uncle and myself were extracting the juice of cashew fruits". It is true that the total quantity which my uncle was getting was 3 to 4 kgs. per day from cashew nut trees. It is true that my uncle and myself were extracting the juice of cashew fruits". The evidence read as a whole in proper perspective it is justified contention of Smt. Paranjape, the learned counsel that in the absence of accused from the village and in the absence of any demarcated boundary the uncle used to pluck the cashewnut fruits even from the plantation belonging to the accused. It is in that behalf worth noting that when the accused went to the house of uncle at about 1 p.m. on that day he did not hurl any other abuses, but only addressed the under as a thief and when questioned he insisted that he would continue and always call him as a thief and because according to his belief which was not unjustified that he used to commit theft of cashewnut fruits from his plantation. It is also worth noting that at that very time when Raghunath was present in the house and was available for being assaulted the accused did nothing of that type but merely addressed him a thief and what is of more importance is that accused cautioned him not to go to the plantation and if Raghunath indulged with that exercise be would see to ii. He had no intention even to assault him. if Raghunath had resisted from going to the plantation. It is true that there is nothing on record to suggest that Raghunath was proceeding to the plantation of the accused to pluck the cashewnut fruits because Raghunath was proceeding to his own plantation. However, in view of the past experience accused obviously felt apprehensive. Laxmibai admits and the prosecution concedes that only one blow was indicted, though it is true that it landed on the neck. It cannot be overlooked that Raghunath was carrying a basket on his head which contained cashewnut fruits, which were being taken to crushing for extracting juice. The basket being held on the head was certainly the matter of agitation when he intercepted Raghunath. It also cannot be overlooked that Raghunath was walking and, therefore, not a stationary object the accused also came walking and all of a sudden inflicted a blow which was from upward to downward direction aiming at basket. The basket being held on the head was certainly the matter of agitation when he intercepted Raghunath. It also cannot be overlooked that Raghunath was walking and, therefore, not a stationary object the accused also came walking and all of a sudden inflicted a blow which was from upward to downward direction aiming at basket. Even, therefore, assuming that accused wanted to assault Raghunath still it may not necessary that he had aimed at neck. Admittedly only one blow was inflicted, though accused could have persisted in inflicting further blow. The accused thereafter did nothing untoward but straight-way went to house of his father-in-law. Pradeep admitted in his evidence that when the accused was arrested the accused expressed surprise on getting the news that Raghunath had succumbed to the injuries. The totality of all these circumstances read in proper perspective would justify the contention of Smt. Paranjape the learned counsel that the offence would not fall within the meaning of section 300 of the Penal Code or any of its clauses as obviously there was no intention. On the contrary the offence would squarely fall on the second part of section 304 of the Penal Code and not on the first part because it cannot be said with that degree of certainty that the act was done with intention of causing death or with the intention of such bodily injury which was likely to cause death. It does appear that having regard to the user of weapon like scythe and resultant consequence that the accused can be attributed with the knowledge that the act was likely to cause death or likely to cause such badly injury which was likely to cause death. 27. The offence in certain circumstances falling under section 304 Part II has been accepted by the Supreme Court in Jagrup Singh v. State of Haryana1 and Tholan v. State of Tamil Nadu2 when certain guidelines are enunciated in respect of a case of single blow. This was not premeditated act and it appears to have occurred on the spur of moment. No doubt every decision would normally depend on the facts of each case. Restricting to the facts at hand we are of the opinion that the offence would legitimately fall under section 304 Part II. 28. This was not premeditated act and it appears to have occurred on the spur of moment. No doubt every decision would normally depend on the facts of each case. Restricting to the facts at hand we are of the opinion that the offence would legitimately fall under section 304 Part II. 28. Consequently, therefore, taking resume of the entire situation we are in agreement with the contention raised by Smt Paranjape, the learned counsel that the offence would squarely fall within the meaning of provisions of section 304 Part n and not under section 302 of the Penal Code. The learned Sessions Judge unfortunately missed this crucial aspect. 29. As regards the quantum of sentence though the offence has been scaled down we cannot overlook so lightly the nature of injury. It had landed on the neck, which is obviously a vital part and what is of more importance is that it was deep enough ranging between 7 and 8 c.m. and what is of more importance is that all the vital organs in between including muscles, vessels and veins were cut and because of this there was profuse bleeding, haemorrhage and death was practically instantaneous to our opinion, having regard to all these features including the nature of injury a sentence of five years imprisonment would be sufficient to meet the ends of justice. Appeal to that extent would succeed. 30. Appeal partly allowed. 31. The order of conviction and sentence under section 302 of the Indian Penal Code as recorded by the learned trial Judge is set aside. Instead, however, the appellant accused is convicted of the offence under section 304 Part II of the Penal Code and is sentenced to suffer R.I. for five years. To that extent the order is modified and appeal thus partly succeeds. 1. AIR 1981 SC 1552 2. AIR 1984 SC 759 .