JUDGMENT (ORAL) Vishnu Sahai, J. - The appellant aggrieved by the judgment and order dated 24th December, 1993, passed by the IInd Additional Sessions Judge, Satara in Sessions Case Nos. 155 of 1989 and 264 of 1992, has come up in appeal before us. Along with the appellant one Ratansinh @ Vikram Sampat Jadhav was also tried, but he has been acquitted by the same judgment. 2. The incident in question took place on 17th March, 1989, at about 10.35 p.m. in front of Sevagiri touring talkies at Pusegaon in District Satara. At that time P.W. 5 Bhanudas Jadhav who was working in the talkies was towards the side door of the talkies. At that juncture, a quarrel between the appellant and the deceased took place. The quarrel was regarding the expenses of white washing of the shop of the appellant. While the quarrel was going In, the deceased asked Bhanudas Jadhav to permit him to enter the talkies, but he refused. The appellant came there. First he gave one fist blow to Janardan. Then he gave him a kick. Then lifting the collar of Janardan's shirt inflicted a solitary blow with a gupti on his person resulting in Janardan falling down on the ground. Thereafter, the appellant again gave one fist and kick blow to Janardan. Thereafter, the appellant is said to have run away. Apart from PW 5 Bhanudas Jadhav this incident was seen by PW 4 Sugandhabai Masane. 3. The F.I.R. of the incident was lodged by Ganpat Jadhav P.W. 16, the brother of the deceased on receiving information about the incident from his mother. On its basis a case under Section 302 I.P.C. was registered against the appellant. It appears that during the course of the investigation the acquitted accused Ratansinh @, Vikram Sampat Jadhav was involved with the aid of section 34 I.P.C., the allegation against him being that he brought the present appellant on a cycle and that at his pointing out the weapon of the assault was recovered. 4. The post-mortem examination of the dead body of the deceased was conducted on 18th March, 1989 by Dr, Dilip Chavan P.W. 3. On the dead body, the Doctor found the following injuries : 1. Abrasion over (Rt) auxiliary prominence 4 cm. x 2 cm. blackish colour. 2. Abrasion over the (Rt) side of chin 2 cm. x 2 cm. blackish colour. 3. On the dead body, the Doctor found the following injuries : 1. Abrasion over (Rt) auxiliary prominence 4 cm. x 2 cm. blackish colour. 2. Abrasion over the (Rt) side of chin 2 cm. x 2 cm. blackish colour. 3. Stab wound on (Lt) side of chest 5 inches below (Lt) mammary gland nipple 4 inches lateral to midline between 5th and 6th rib 2 cm. X 1cm. length breadth. In the opinion of Dr. Chavan, the deceased died on account of shock and haemorrhage due to stab injury caused to heart. 5. The investigation in the case was conducted in the usual manner and after its completion a charge-sheet against the appellant and the acquitted accused Ratansinh @ Vikram Sampat Jadhav was submitted under Section 302 read with 34 I.P.C. 6. The case was committed to the Court of Sessions in the usual manner. In the trial Court, a charge under Sections 302 I.P.C. and 201 read with 34 I.P.C. was framed against the appellant to which he pleaded not guilty and claimed to be tried. In the trial Court, apart from tendering some documentary evidence, the prosecution examined as many as 17 witnesses. In defence, on witness was examined. The learned trial Judge believed the evidence adduced by the prosecution and passed the impugned order. Hence this appeal. 7. We have heard Mr. O.A. Siddique for the appellant and Mr. S.R. Borulkar for the State of Maharashtra. The solitary submission canvassed by Mr. Siddique is that the learned trial Judge erred in convicting the appellant under Section 302 I.P.C. and instead should have convicted him under Section 304 Part II I.P.C. Before we come to the legal contention canvassed by Mr. Siddique, we feel it obligatory to state that having perused the evidence on record we are satisfied that the learned trial Judge has rightly concluded the involvement of the appellant in the instant crime. We are satisfied that the evidence of both the eye witnesses viz. Sugandhabai Masane P.W. 4 and Bhanudas Namdeo Jadhav P.W. 5 inspires confidence. It is on the basis of the averments contained in their statements that we have set out the prosecution story in paragraph 2 of the judgment. We are satisfied that the evidence of both the eye witnesses viz. Sugandhabai Masane P.W. 4 and Bhanudas Namdeo Jadhav P.W. 5 inspires confidence. It is on the basis of the averments contained in their statements that we have set out the prosecution story in paragraph 2 of the judgment. Their evidence regarding the manner of the assault on the deceased which includes the appellant kicking the deceased prior to his assaulting him with a gupti and again kicking him after the assault was over is corroborated by the ante-mortem injuries suffered by the deceased; the latter having been mentioned in paragraph four of this judgment. We also find that both these witnesses had no axe to grind against the appellant. In our view, their evidence proves the involvement of the appellant in the incident. 8. We now come to the legal contention canvassed by Mr. Siddique. We may straightaway mention that the same has been vehemently contested by Mr. S.R. Barulkar the learned Additional Public Prosecutor, in whose contention an offence under Section 302 I.P.C. is squarely established against the appellant. After considering the contentions of Counsel for the parties in respect of the offence made out we are of the view that an offence under Section 304 Part I I.P.C. is made out against the appellant. The circumstances in which the incident took place in short are as under : The deceased was drunk at the time of the incident. There was no subsisting enmity between him and the appellant. A quarrel between him and the appellant took place at the door of the talkies regarding the payment to be made to the appellant in respect of colouring the shop of the deceased. At first, the appellant gave one fist blow to the deceased and thereafter he gave him a kick. Then catching hold of the collar of his shirt inflicted a solitary gupti blow on his person and thereafter again giving a fist and kick blow to the deceased, the appellant ran away. At first, the appellant gave one fist blow to the deceased and thereafter he gave him a kick. Then catching hold of the collar of his shirt inflicted a solitary gupti blow on his person and thereafter again giving a fist and kick blow to the deceased, the appellant ran away. In our view, the act of the appellant in the aforesaid circumstances would not fall within the ambit of any pf the clauses of Section 300 I.P.C., the breach of which is punishable under Section 302 I.P.C. but only in that of Section 304 Part I I.P.C. When in the factual background mentioned above the appellant inflicted a solitary gupti blow on the deceased it would be legitimate to infer that he intended to inflict an injury which was likely to cause his death as contemplated by Section 304 Part I I.P.C. 9. Mr. S.R. Borulkar, the learned Additional public prosecutor vehemently urged on the basis of the decision of the Apex Court reported in Virsa Singh v. State of Punjab1, that the act of the appellant would be squarely covered by Clause Thirdly of Section 300 I.P.C. viz. that the appellant intended to inflict injuries which were sufficient in the ordinary course of nature to cause death. We regret that we are not able to accede to the contention canvassed by Mr. Borulkar. In the first place, we find that Doctor Chavan who performed the post-mortem on the dead body of the deceased did not state in his statement recorded in the trial Court that the inju 1. A.I.R. 1958 S.C. 465. ries suffered by the deceased were sufficient in the ordinary course of nature to cause his death. On this aspect of the matter Mr. Borulkar urged that even if the medical evidence is not to the effect that the injuries were sufficient in the ordinary course of nature to cause death, but if a perusal of the injuries leads to this inference, the Court can itself conclude to this effect. On this aspect of the matter Mr. Borulkar urged that even if the medical evidence is not to the effect that the injuries were sufficient in the ordinary course of nature to cause death, but if a perusal of the injuries leads to this inference, the Court can itself conclude to this effect. Although in an extreme case where the injuries are per se fatal a Court may conclude to this effect but such an exercise should be restricted to the rarest of rare cases for two reasons:- (i) the person best qualified to depose on this question is the medical witness because he alone and not the Court has the necessary expertise to depose about it with any degree of certainty; and (ii) the burden of proving that the case falls within the ambit of a certain section is on the prosecution. It was its duty to have put a question to the medical witness regarding the sufficiency of the injuries to cause death of the deceased in the ordinary course. In the instant case we feel that it would be hazardous and unsafe for us to Conclude with any certainty that the injuries of the deceased were sufficient to cause his death in the ordinary course of nature. 10. In our view, even assuming that the injuries of the deceased were sufficient to cause death in the ordinary course of nature still clause thirdly of Section 300 I.P.C. would not be attracted. Clause Thirdly of Section 300 I.P.C. was considered by the Apex Court in the decision reported in Jawahar Lal v. State of Punjab2. In that case, the injuries of the deceased were sufficient to cause death in the ordinary course of 2. A.I.R. 1983 S.C. 284. nature. But it was held that in order to bring the offence within Clause Thirdly of Section 300 I.P.C., the prosecution has to establish that there was an intention to inflict the injury which was sufficient in the ordinary course of nature to cause death. A.I.R. 1983 S.C. 284. nature. But it was held that in order to bring the offence within Clause Thirdly of Section 300 I.P.C., the prosecution has to establish that there was an intention to inflict the injury which was sufficient in the ordinary course of nature to cause death. On this aspect in paragraph 15 the Apex Court 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." In that case, it further held that it may be that in the available dim light the blow may have landed on the chest. To the same effect are the observations of the Apex Court in the decision reported in Kulwant Rai v. State of Punjab3. In that case after a short quarrel the appellant gave a dagger blow on the epigastrium region of the deceased. Repelling the contention that the act would fall within the ambit of Clause Thirdly as the injury was sufficient in cause death in the ordinary course of nature, the Apex Court held that since there was no intention to inflict such an injury Clause Thirdly would not be applicable. 11. In the instant case, we find that the incident took place at about 10.30 p.m. and was preceded by a sudden quarrel. If during such an incident the appellant inflicted one blow with a gupti which landed on the left side of chest of the deceased, it cannot in our view be said that he intended to inflict an injury which was sufficient in the ordinary course of nature to cause 3. A.I.R. 1982 S.C. 126. death. We feel, on the facts involved in this case, that it would be reasonable to infer that the appellant intended to inflict an injury which was likely to cause death as contemplated by Part I of Section 304 I.P.C. We also feel that the learned trial Judge erred in convicting him under Section 302 I.P.C. 12. As regards the sentence which should be awarded to the appellant under Section 304 Part 1 I.P.C. our view is that the ends of justice would be squarely satisfied if the appellant is sentenced to undergo a period of eight years R.I. and to pay a fine of Rs. As regards the sentence which should be awarded to the appellant under Section 304 Part 1 I.P.C. our view is that the ends of justice would be squarely satisfied if the appellant is sentenced to undergo a period of eight years R.I. and to pay a fine of Rs. 2,000/-, in default to undergo one year's R.I. 13. In the result, this appeal is partly allowed and partly dismissed. We acquit the appellant under Section 302 I.P.C. and set aside his conviction and sentence on that count. In case he has paid the fine of Rs. 2,000/-, it shall stand refunded to him. Instead, we convict the appellant under Section 304 Part I I.P.C. and sentence him to undergo a period of eight years R.I. and to pay a fine of Rs. 2,000/- in default to undergo one year’s R.I. The appellant who is in jail shall continue to remain there till he serves out his sentence. Appeal allowed partly.