JUDGMENT - VISHNU SAHAI, J. :---The appellant aggrieved by the Judgment and order dated 21-2-1994 passed by the Additional Sessions Judge, Pune in Sessions Case No.295 of 1993, convicting and sentencing him to undergo life imprisonment and a fine of Rs. 2000/- in default to suffer R.I. for three months under section 302 I.P.C. has come up in appeal before us. 2. Briefly stated the prosecution case runs as under:--- The informant Shankar Rajwade P.W. 1 was a friend of the deceased Balu Padale. On 8-4-1993 at about 9.15 p.m. the informant went to a betel shop. Near that shop, the deceased Balu Padale, Nitin Dhakate, Sonkul, Lalit Gujar and Pravin Bhalange were sitting. The appellant and the acquitted accused Nagesh Tirmukhe who was also standing near by called Balu Padale by signs. Balu told them that he would not come and they should come near him. Accordingly, the appellant and the acquitted accused came near him. One of them told Balu that his maternal uncle was calling him. Balu Padale replied that he did not know his maternal uncle and they should leave him. At that co-accused Nagesh Tirmukhe caught hold of Balu's collar and the appellant took out a knife from the pocket of his pant and inflicted one blow with the same on Balu's person. Balu fell down on receiving the injury. The appellant and Nagesh Tirmukhe are thereafter alleged to have run away. They were chased by informant Shekhar Khedkar P.W. 4 and Nitin Dhakate, P.W. 2. With the help of a police constable Dasrath Kasbe P.W. 11 the appellant was arrested along with a blood stained knife near Apollo Theatre. Thereafter, in a rickshaw, he was brought to the place of the incident. In the same rickshaw, deceased Balu Padale who was still alive and the appellant were taken to police chowky. From there, Balu was sent to a hospital. 3. On 8-4-1993, at 9.45 p.m. Balu Padale was admitted in Surgical Ward of Sasoon Hospital, Pune. There he was medically examined by Dr. A.U. Rathod P.W. 8. The doctor found that his general condition was very low. At about 1.30 a.m. Balu Padale succumbed to his injuries at the Sasoon Hospital, Pune. The F.I.R. of the incident was lodged by A.P.I. Vishwanath Bhandare P.W. 14 at Samarth police station on the dictation of Shankar Rajwade. There he was medically examined by Dr. A.U. Rathod P.W. 8. The doctor found that his general condition was very low. At about 1.30 a.m. Balu Padale succumbed to his injuries at the Sasoon Hospital, Pune. The F.I.R. of the incident was lodged by A.P.I. Vishwanath Bhandare P.W. 14 at Samarth police station on the dictation of Shankar Rajwade. On its basis a case under section 307 I.P.C. was registered. It is at Exhibit 16. 4. The post mortem examination of the dead body of Balu Padale was conducted by Dr. Syed Abdul Sami P.W. 7 on 9-4-1993 between 10.20 a.m. and 11.30 a.m. On the dead body, the doctor found two injuries:--- (1) One incised wound 2½ x 1 cm on the back cavity deep sutured left kidney injured through and through. (2) Haemorrhage over right frontal (2 x 1cm) right parietal (4 x 2 cm) and over left occipi to parietal region (5 x 3 cm). In the opinion of Dr. Sami, the incised wound was attributable to a knife and the haemorrhage could be possible if the person falls on a rough surface. Dr. Sami also stated that the incised wound suffered by the deceased was sufficient in the ordinary course of nature to cause death. 5. The investigation in the instant case was done in the usual manner by A.P.I. Vishwanath Bhandare of Samarth Police Station. After lodging of F.I.R., he arrested the appellant under a arrest panchanama Exh. 30. Thereafter, he recorded statement of P.W. 2 Nitin Dhakate and Yeshwant Sonkul P.W. 3. Next day, the acquitted accused Nagesh Tirmukhe was arrested. After death of the deceased which took place at 1.30 a.m. on 9-4-1993, he converted the case from that under section 307 I.P.C. to one under section 302 I.P.C. After completing investigation, a charge-sheet was submitted. 6. The case was committed to the Court of Sessions where a charge under section 302 I.P.C. and, under section 135 r/w 37(i) of the Bombay Police Act was framed against the appellant. To the aforesaid charges, he pleaded not guilty and claimed to be tried. 7. In the trial Court, apart from tendering some documentary evidence, the prosecution examined as many as 16 witnesses. Out of them, three namely Shankar Rajwade, Nitin Dhakate and Yeshwant Sonkul P.Ws. 1, 2 3 respectively were examined as eye witnesses. To the aforesaid charges, he pleaded not guilty and claimed to be tried. 7. In the trial Court, apart from tendering some documentary evidence, the prosecution examined as many as 16 witnesses. Out of them, three namely Shankar Rajwade, Nitin Dhakate and Yeshwant Sonkul P.Ws. 1, 2 3 respectively were examined as eye witnesses. Remaining witnesses included the doctors, Investigating Officer, panchas and those who apprehended the appellant-Nitin Dhakate P.W. 2, Shekhar Khedkar P.W. 4 and police constable P.W. 11 Dashrath Kasbe. In defence no witness was examined by the appellant. The trial Judge after assessing the evidence on record acquitted co-accused Nagesh Tirmukhe but, convicted and sentenced the appellant in the manner stated earlier. Hence, this appeal. 8. We have heard Mr. Deepak More for the appellant and Mr. S.R. Borulkar, Additional Public Prosecutor for the State of Maharashtra. We have also gone through the depositions of the prosecution witnesses, the exhibits tendered by the prosecution and the impugned judgment. After giving our anxious consideration to the matter, we feel that this appeal only deserves to be allowed in part i.e. on the limited question of the offence made out. 9. So far as the involvement of the appellant in the incident in concerned, the same in our view appears to have been certainly brought home from the evidence of not only three eye witnesses of the incident but also from that of the three witnesses who apprehended the appellant near the place of the incident with a blood stained knife. All these three eye witnesses stated that while co-accused Nagesh Tirmukhe caught hold of the collar of the deceased, the appellant inflicted a single blow on him with a knife. Their statements are corroborated by the nature of ante-mortem injuries found on the person of the deceased, referred to earlier. After going through the testimony of these three eye witnesses namely Shankar Rajwade, Nitin Dhakate and Yeshwant Sonkul, P.Ws. 1, 2 and 3 respectively we are definitely of the opinion that the same inspires implicit confidence. The learned Counsel for the appellant has not been able to impeach their credibility vis-a-vis the participation of the appellant in the instant case. In our view, the testimony of these three eye witnesses firmly establishes the involvement of the appellant in the murder of deceased Balu Padale. The learned Counsel for the appellant has not been able to impeach their credibility vis-a-vis the participation of the appellant in the instant case. In our view, the testimony of these three eye witnesses firmly establishes the involvement of the appellant in the murder of deceased Balu Padale. Assurance is lent to the prosecution case by the circumstance that as many as three witnesses namely Nitin Dhakate, Shekhar Khedkar and Dashrath Kasbe, P.Ws. 2, 4 and 11 respectively deposed that immediately after the incident, they chased the appellant and apprehended him on the spot with a blood-stained knife. Again, learned Counsel for the appellant could not point out any blemish or infirmity in their statements. It may be stated that the Chemical Analyst found human blood on the knife. Thus, in our view, there is ample cogent material with the prosecution establishing the involvement of the appellant in the instant crime. 10. The only question which remains is that pertaining to the offence made out. Mr. Deepak More learned Counsel for the appellant vehemently urged that looking to the totality of circumstances, it was not proper on the part of the trial Judge to have convicted the appellant under section 302 I.P.C. and at the worst he should have been convicted only for an offence under section 304(2) I.P.C. To substantiate his argument, Mr. More invited our attention to certain features emanating from the cross-examination of Shankar Rajwade P.W. 1 and Nitin Dhakate P.W. 2. He drew our attention to para 4 of the statement of Shankar Rajwade wherein he stated that before the incident, there was an exchange of abuses between the deceased on one side, the appellant and acquitted accused Nagesh Tirmukhe on the other side. He also invited our attention to the same para wherein this witness stated that there had been a scuffle between them, prior to the assault being made on the deceased. From the statement of Nitin Dhakate, Mr. More pointed out that the incident in question resulted from a sudden quarrel. He also invited our attention to the same para wherein this witness stated that there had been a scuffle between them, prior to the assault being made on the deceased. From the statement of Nitin Dhakate, Mr. More pointed out that the incident in question resulted from a sudden quarrel. He further urged that when in such a situation, in the heat of the moment, the appellant inflicted a single blow with a knife on the back side of the deceased, who was not done to death on the spot, his act would not fall within any of the four clauses of section 300 I.P.C., the breach of which is punishable under section 302 I.P.C. He urged that at the worst the appellant can be fastened with the knowledge of the death of the deceased as contemplated by second part of section 304 I.P.C. On the other hand, Mr. Borulkar, Additional Public Prosecutor for the State of Maharashtra vehemently urged that looking to the circumstances that the appellant assaulted the deceased on a vital part of body and the severity of the blow was such that it ruptured left kidney through and through, coupled with the medical evidence which was to the effect that injury to the kidney of the deceased was sufficient in the ordinary course of nature to cause death, it can be safely held that act of the appellant fell within the mischief of Clause 3rdly of section 300 I.P.C. He urged that it can be safely said that the appellant intended to inflict a injury which was sufficient in the ordinary course of nature to cause death of the deceased. In this connection, he placed reliance on A.I.R. 1958 Supreme Court 465, (Virsa Singh v. State of Punjab)1. 11. After giving our anxious consideration to the rival submissions of the Counsel for the parties on the question as to what offence is made out, we regret that we are not able to accede to the contention canvassed by Mr. Borulkar. The Apex Court in the decision reported in A.I.R. 1983 Supreme Court 284, (Jawahar Lal and another appellants v. State of Punjab respondent)2, while repelling the contention similar to that canvassed by Mr. Borulkar. The Apex Court in the decision reported in A.I.R. 1983 Supreme Court 284, (Jawahar Lal and another appellants v. State of Punjab respondent)2, while repelling the contention similar to that canvassed by Mr. Borulkar, observed thus:--- "Merely because the blow landed on a particular spot on the body, divorced from the circumstances in which the blow was given, it would be hazardous to say that the 1st appellant intended to cause that particular injury. The weapon used was the usual handy weapon, a Punjabi generally carries a knife. The 1st appellant was near his shop. He did not attempt to inflict any more harm. In the available dim light, the blow landed on the chest. In our opinion, in these circumstances, it would be difficult to say that the 1st appellant intended to cause that particular injury. Even if the injury inflicted proved to be fatal, the case would not be covered by para 3 of the section 300." In that case also the injuries on the person of the deceased were found sufficient by the doctor to cause death in the ordinary course of nature but the Apex Court converted the conviction from 302 I.P.C. to one under section 304(2) I.P.C. 12. In our view, for the reasons mentioned above and bearing in mind that the appellant was aged about 20 years at the time of the incident and in the heat of the moment on account of his tender age inflicted a solitary knife blow on the person of the deceased who was not done to death on the spot by the appellant, the case would fall within the ambit of section 304(2) I.P.C. In our view, in the facts of the instant case, it cannot be held that the appellant intended to inflict an injury sufficient in the ordinary course of nature to cause death and therefore, the decision of the Apex Court reported in A.I.R. 1958 S.C. 465, supra, would be inapplicable in the instant case. Facts almost identical to the present case were found in the case reported in A.I.R. 1982 Supreme Court 126, (Kulvant Rai appellant v. State of Punjab respondent)3. In that case also, at the time of the incident, the appellant was aged about 20 years and the offence was committed without any pre-meditation and there was no prior enmity. Facts almost identical to the present case were found in the case reported in A.I.R. 1982 Supreme Court 126, (Kulvant Rai appellant v. State of Punjab respondent)3. In that case also, at the time of the incident, the appellant was aged about 20 years and the offence was committed without any pre-meditation and there was no prior enmity. It also transpired that a short quarrel preceded the assault on the deceased and thereafter, one blow was given with a dagger which landed in the epigastrium region of the deceased. The deceased succumbed to that injury. The trial Court convicted the accused under section 302 I.P.C. and appeal preferred by the accussed was dismissed by the High Court. Before the Apex Court, it was urged on behalf of the State of Punjab that since the medical evidence was that the injury inflicted by accused was sufficient in the ordinary course of nature to cause death, Clause 3rdly of section 300 I.P.C. would have application and the offence would fall under section 302 I.P.C. Repelling the contention, the Apex Court held that in the circumstances in which the offence was committted, could it ever be held that accused intended to inflict that injury which proved to be fatal. It further held that there was an altercation and no pre-meditation. The Apex Court held that :--- "In such a case, part 3 of section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under section 304 Part II Penal Code." In our view, the decision of the Apex Court reported in A.I.R. 1982 Supreme Court page 126, supra, would have full application to the facts of the present case. 13. The sole question which remains is that pertaining to the quantum of sentence to be awarded to the appellant. After giving our thoughtful consideration to all the relevant circumstances and bearing in mind the young age of the appellant we feel that the ends of justice would be squarely satisfied if the appellant is awarded a sentence of five years R.I. coupled with a fine of Rs. After giving our thoughtful consideration to all the relevant circumstances and bearing in mind the young age of the appellant we feel that the ends of justice would be squarely satisfied if the appellant is awarded a sentence of five years R.I. coupled with a fine of Rs. 2000/- in default three months R.I. under section 304(2) I.P.C. 14. In the result, this appeal is partly allowed and partly dismissed. We set aside the conviction and sentence of the appellant under section 302 I.P.C. We acquit him on that count. In case he has paid the fine, the same shall be refunded to him. Instead we find the appellant guilty under section 304(2) I.P.C. In our view, a sentence of five years R.I. and a fine of Rs. 2000/- and three months S.I. in default of payment of fine would meet the ends of justice. The appellant is in jail. He shall be released therefrom only after he served out his sentence. Before parting with this judgment, we would like to put on record our appreciation for the enormous assistance rendered to us by the learned Counsel for the parties. With great skill and competence, they have argued this appeal. Appeal partly allowed.