JUDGMENT - V.H. BHAIRAVIA, J.:---This appeal is preferred by the appellant-accused against the order of conviction and sentence dated 20th March, 1984, passed by the learned Addl. Sessions Judge, Pune in Sessions Case No. 148/83 whereby the learned Judge convicted the appellant-accused for an offence under section 302 of I.P.C. and sentenced him to suffer imprisonment for life. 2.The prosecution case in short is that, complainant Laxmibai wife of Prakash Sanas and the appellant-accused are the residents of a chawl in Shitole Nagar at village Sangvi and as they are next door neighbours, some quarrels used to take place between them on some petty matters. 3.On 19-3-83, according to the prosecution, Laxmibai, the complainant has sprinkled water in front of her house. The cycle of the appellant- accused was resting the wall of his house. At that time, the appellant-accused has objected for sprinkling the water by Laxmibai as the water was fallen over the cycle of the accused. Prakash, husband of Laxmibai was called by accused Dhamale. It is alleged that appellant-accused caught collar of the shirt of Prakash and Prakash also caught the shirt of the appellant-accused. At that time, the neighbours intervened and they separated both of them. It is the prosecution case that on the same day in the evening, Bhima Bhiku Sanas (deceased) brother of Prakash and his friend Vishnupant alias Balu Kale had come to Sangvi on motor-cycle. They went to the house of Prakash but Prakash was not in the house. Laxmibai the wife of Prakash entertained them by serving tea. At that time, Laxmibai narrated the morning incident to Bhima Bhiku. Bhima Bhiku therefore, advised her not to raise quarrel. It reveals from the record that Bhima Bhiku also told Laxmibai that he is going to give same advise to accused Dhamale. They started returning back from the house of Laxmibai. While they were proceeding towards the motor-cycle which was parked out side, Bhima Bhiku saw the appellant-accused standing on the Ota of his house. Thereupon, he (Bhima Bhiku) questioned him (appellant-accused) not to raise quarrel. It is alleged that at that time, appellant-accused got annoyed and retorted "Am I a rascal" and he pounced upon Bhima Bhiku who was standing below the Ota, with the result, Bhima Bhiku fell down on the ground. Thereupon, he (Bhima Bhiku) questioned him (appellant-accused) not to raise quarrel. It is alleged that at that time, appellant-accused got annoyed and retorted "Am I a rascal" and he pounced upon Bhima Bhiku who was standing below the Ota, with the result, Bhima Bhiku fell down on the ground. At that time, it is alleged that the appellant-accused took out a knife from his pocket, opened the knife and inflicted blow on the chest portion of Bhima Bhiku which resulted into his death on the spot. At that time, according to the prosecution, Laxmibai who was standing near Bhima, raised cry. On hearing the cry of Laxmibai, one Puran Kumbhar came to the spot and he saw that the appellant-accused was standing near the legs of Bhima Bhiku with a knife in his hand and the knife blade was stained with blood. He then rushed to the house of one Nanasaheb Shitole and brought him on the spot. By that time, the appellant-accused had gone on his Ota and he was found standing there with a knife in his hand. Nanasaheb Shitole who is a respectable person of that village directed the appellant-accused to go inside the house. It is alleged that the appellant-accused followed the direction and went inside his house. Thereafter, Nanasaheb Shitole bolted the door from outside, and he contacted the police on phone. On receiving phone, P.I. Shaikh went to the spot alongwith his staff members within 10 minutes. Bhima Bhiku was lying in an injured condition on the spot. He was immediately removed to Sassoon Hospital where he was declared dead. Thereafter, it is alleged that P.I. Shaikh opened the door of the house of the appellant-accused. The appellant-accused was found sitting on the cot with the same knife in his hand. His clothes were stained with blood. P.I. Shaikh then seized the knife and blood stained clothes of the appellant-accused under the panchanama Exhibit 16. Thereafter, the appellant-accused was arrested. Complaint of Laxmibai was recorded at Exhibit 9. Thereafter, the investigation started. 4. After recording the statements of the witnesses and on receiving the postmortem report, a Charge-sheet was submitted in the Court of Judicial Magistrate, First Class, Pune. The learned Magistrate committed the case to the Court of Sessions. Thereafter, the appellant-accused was arrested. Complaint of Laxmibai was recorded at Exhibit 9. Thereafter, the investigation started. 4. After recording the statements of the witnesses and on receiving the postmortem report, a Charge-sheet was submitted in the Court of Judicial Magistrate, First Class, Pune. The learned Magistrate committed the case to the Court of Sessions. Charge under section 302 of I.P.C. was framed and after recording the prosecution evidence, the plea of appellant-accused under section 313 of Criminal Procedure Code was recorded. The learned Judge held the appellant-accused responsible for committing murder which falls under Clause (3) of section 300 of I.P.C. and convicted the appellant-accused for the offence punishable under section 302 of I.P.C. and sentenced him to jail for life, by his order dated 20th March, 1984. Hence this appeal. 5.Heard Smt. Bhonsale, learned Counsel for the appellant and Mr. Borulkar, learned A.P.P. for State. In view of the statement made by the appellant-accused under section 313 of the Criminal Procedure Code, Smt. Bhonsale advanced her arguments on the plea of right of private defence and urged for acquittal of the appellant-accused. We are unable to accept the submission of Smt. Bhonsale. 6.Having gone through the record and proceedings of this case, it reveals that the incident in question had taken place within the spur of the moment. According to P.W. 2 Laxmibai who is the witness of the first incident of quarrel which took place in the morning between Laxmibai's husband Prakash and the appellant-accused in front of her house out of sprinkling of water which had fallen over the cycle of the appellant-accused. At that time, both Prakash husband of Laxmibai and the appellant-accused had held collars of the shirts of each other, and when the neighbours separated them. Thereafter, it reveals from the record that at the evening time, deceased Bhima Bhiku had come to the house of Prakash alongwith his friend Vishnupant alias Balu Kale, P.W. 4 on casual visit. At that time, Laxmibai narrated the morning incident before deceased Bhima Bhiku. It is stated that deceased Bhima Bhiku advised Laxmibai not to quarrel. Simultaneously, he had also told Laxmibai that he (Bhima Bhiku) is going to give same advise to the appellant-accused also. It reveals that while deceased Bhima Bhiku and Balu Kale started to go towards their motor-cycle, they saw appellant-accused sitting on the Ota of his house. It is stated that deceased Bhima Bhiku advised Laxmibai not to quarrel. Simultaneously, he had also told Laxmibai that he (Bhima Bhiku) is going to give same advise to the appellant-accused also. It reveals that while deceased Bhima Bhiku and Balu Kale started to go towards their motor-cycle, they saw appellant-accused sitting on the Ota of his house. It may be noted here that the houses of the appellant and the complainant Laxmibai are adjoining to each other i.e. the next door neighbour. On seeing the appellant-accused, it reveals that deceased Bhima Bhiku advised the appellant-accused not to quarrel. At the time, it reveals that the appellant-accused told deceased Bhima-Bhiku "Am I a rascal" and he pounced upon Bhima Bhiku from the Ota and as a result Bhima Bhiku fell down below the Ota. This event was witnessed by Laxmibai, P.W. 2 and Balu Kale, P.W. 4. It is stated in the deposition of Laxmibai--- "On seeing Ramchandra my Dir Bhima asked Ramchandra not to raise quarrels. He retorted in filthy language "Mi Kai Chutia Ahe Kai'. My deer Bhima then started walking towards the motor-cycle where it was parked. Ramchandra suddenly pounced on him . The Ota where Ramchandra was standing is about 2 feet in height. Ramchandra fell Bhima down. Bhima fell down in such a position that he was facing the sky. Ramchandra fell over him. He inserted his left hand in his left hand side pant pocket and took out the knife. When he took out the knife I heard some noise and saw the blade. With that same knife he assaulted my deer Bhima on his chest portion." 7.Her evidence is fully corroborated with the medical evidence. The doctor found the following injuries:- (1) Penetrating wound of 4/5" x 2/5" x 6½" over the left wall of chest. The injury was so deep that during internal examination it was found that- (a) Left fifth costal cartilage cut through and through. (b) Pericardium was cut on left and right side and it was full of blood. (c) Right and left ventricles of the heart were penetrated through and through (underline supplied). The plea of the appellant-accused is that of his right of private defence. There is a medical certificate that the appellant-accused sustained seven minor injuries and all are abrasive. (b) Pericardium was cut on left and right side and it was full of blood. (c) Right and left ventricles of the heart were penetrated through and through (underline supplied). The plea of the appellant-accused is that of his right of private defence. There is a medical certificate that the appellant-accused sustained seven minor injuries and all are abrasive. The eye witnesses to the incident i.e. P.W. 2 and P.W. 4 have deposed that the appellant-accused fell on the deceased Bhima Bhiku and thereafter, he took out a knife from his pant pocket and inflicted knife blow on the chest of deceased Bhima Bhiku. The appellant-accused has stated in his statement that deceased Bhima and his friend P.W. 4 Balu Kale had come to his house with a view to attack him. He also told them not to come near him as he was having a knife in his pocket. Despite that, deceased Bhima held the legs of the appellant and under the apprehension of danger to his life, the appellant-accused inflicted a knife blow to save his life. 8.Having regard to the prosecution evidence, particularly, the eye witnesses, the incident in question has taken place within a spur of the moment. There was no previous enmity between the deceased Bhima Bhiku and the appellant-accused. It is the probable story that deceased Bhima on seeing the appellant-accused standing on the Ota of his house could have made a gesture of giving advice for not raising quarrel with the neighbours and out of that advice something must have been transpired between the deceased and the accused. It is in the evidence of eye witnesses that after falling down of deceased Bhima Bhiku and appellant-accused on the ground, the appellant-accused took out a knife of his pant pocket. It shows that there was no motive or intention to kill the deceased. There was no motive to do so. All of a sudden, out of some quarrel took place between the appellant and the deceased which has resulted into fatal injury to the deceased. It cannot be held that the appellant was justified in exercising his right of private defence under the apprehension of danger to his life. It reveals from the record that the deceased Bhima Bhiku was unarmed and his friend P.W. 4 also had no weapon in his hand. It cannot be held that the appellant was justified in exercising his right of private defence under the apprehension of danger to his life. It reveals from the record that the deceased Bhima Bhiku was unarmed and his friend P.W. 4 also had no weapon in his hand. However, we are of the opinion that in view of the prosecution evidence, particularly the evidence of P.W. 2 and P.W. 4 read with the statement of the appellant-accused recorded under section 313 of the Criminal Procedure Code, there was no immediate intention of the appellant-accused to kill the deceased. The knife was inflicted on the vital part of the deceased and according to the medical evidence, it was very heavy blow and one blow was sufficient to cause death. However, the learned Judge held that the murder committed by the appellant-accused falls under Clause Thirdly of section 300. Clause 3- With the intention of causing bodily injury to any person.........sufficient in the ordinary course of nature to cause death 9.Mr. Borulkar, learned A.P.P vehemently supported the reasoning of the learned Judge and in support of his argument, he relied on the case of (State of Karnataka v. Vedanayagam)1 , reported in 1995(1) S.C.C. 326 . in this case, the Apex Court has considered the scope of section 300 3rdly and the circumstances of its application. He relied on certain segments of the Apex Court (Virsa Singh v. State of Punjab)2, reported in , 1958 S.C.R. 1495 (Jagrup Singh v. State of Haryana)3, 1981 S.C.C. (Cri.) 768., (Jai Prakash v. State of (Delhi Admn.)4, (Tholan v. State of Tamil Nadu)5, 1984(20 S.C.C. 133 Bombay 27 and it is the rule that the scope of Clause 3rdly of section 300 being the subject matter of various decisions of the Supreme Court and the High Courts. Analysing Clause 3rdly and as to what the prosecution must prove, it was held in the case of Virsa Singh v. State of Punjab, reported in as under :- 'First , it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 10.In the instant case, the test to be applied under Clause Thirdly is that intention must be proved. That is the basic principle in the criminal jurisprudence which must be proved. However, it is not the rule that the intention must be proved or must be present at the time of commission of offence. In the case of murder, the test laid down by the Apex Court in Virsha Singh's case supra for arriving at the right conclusion while considering the gravity of the offence "not accidental or unintentional, or that some other kind of injury, was intended." In the present case, it could not be said that it was an accidental injury nor it could be said that it was intended injury or it could not be even held that it was other kind of injury was intended to inflict by the accused. As observed above, the incident took place within the spur of moment. There is no previous enmity. Therefore, there was no question of any motive. There was no intention to cause any injury to the victim but it reveals from the record that on seeing the deceased Bhima Bhiku alongwith his friend and when the deceased advised the appellant-accused not to raise quarrel, the appellant accused got annoyed and retorded "Am I a rascal?" According to the prosecution evidence, the appellant accused pounced on Bhima Bhiku and both of them fallen down. There, some scuffle took place between the appellant and the deceased Bhima Bhiku with the result the appellant-accused also caused 7 minor injuries on his person. As per medical certificate (Exh. 35), following injuries were sustained by the accused person:- 1. Abrassion--½" x ½" left shoulder. 2. Abrassion--½" x ¼" left elbow. 3. Abrassion-- ¼"x ¼" left index finger Lt. There, some scuffle took place between the appellant and the deceased Bhima Bhiku with the result the appellant-accused also caused 7 minor injuries on his person. As per medical certificate (Exh. 35), following injuries were sustained by the accused person:- 1. Abrassion--½" x ½" left shoulder. 2. Abrassion--½" x ¼" left elbow. 3. Abrassion-- ¼"x ¼" left index finger Lt. Dorsum of proximal phalanx. 4. Abrassion--¼"x 1/10" -- 2nd inter phalangeal joint on dorsum of Rt. middle finger. 5. Abrassion-- ¼" x ¼" dorsum--1" above Rt. Wrist. 6. Abrassion-- ½"x ¼" Rt. shoulder. 7. Abrassion--½" x ½" Rt. scapula- Medium forehead 8. C/o Pain Rt. incisser All wound showed scab formation. Of course, the learned Judge has not considered it a serious challenge to the prosecution as it was minor injuries on the person of the accused. However, we cannot shut our eyes towards these injuries and it is not ruled out by the learned Judge also that those injuries were not sustained by the appellant-accused at the time of the incident. It is a specific plea of the appellant-accused that the deceased and P.W. 4. were aggressors and it indicate that there was a scuffle took place before he inflicted knife blow on the vital part of the deceased. It also reveals from the record that he cautioned the deceased and his friend P.W. 4 not to come to him that/he is having knife in his pocket. If he wanted to stop the deceased Bhima Bhiku and his friend P.W. 4 from coming near to him, he would have opened the knife immediately and stopped them. He would not have waited till the deceased fell down on the ground and compelled him, the appellant accused, to take out a knife from his pant pocket. This is the prosecution evidence on record. As we have appreciated the evidence of P.W. 2 Laxmibai, it clearly establishes that the appellant-accused has not inflicted a knife blow on the vital part of the deceased immediately on seeing him nor it was intended to cause knife injury to the deceased but suddenly, he might have on some apprehension of danger to his life, taken out a knife from his pant pocket. However, it is not the defence case that the deceased and P.W. 4 had any weapon in their hands. However, it is not the defence case that the deceased and P.W. 4 had any weapon in their hands. Further, it is not the defence case that P.W. 4 had attacked or assaulted the appellant-accused but it is the defence case that fist blows were given on the appellant-accused by the deceased and P.W. 4 but there is no such medical evidence to that effect also. Only the injuries noted on the appellant-accused are abrasion. Under these circumstances, in our opinion, though the appellant-accused has right of private defence, he has acceded his right unintentionally. One knife blow unintended falls on the vital part of the body, in the spur of a moment, during scuffle, does not fall under Thirdly Part of section 300 but it falls under section 304 part-II of I.P.C. Having regard to the medical evidence, it was only one blow inflicted on the vital part of the deceased which resulted into homicidal death of the deceased and the appellant-accused is liable for the cause of injury and therefore, the offence falls u/s. 304 Part-II I.P.C. So far as the sentence is concerned, the maximum sentence provided is 10 years. The ends of justice will be met if the appellant-accused is sentenced of R.I. for 5 years and to pay a fine of Rs. 1,000/-. In the result, the appeal is partly allowed. The conviction and sentence of the appellant-accused for offence punishable u/s. 302 I.P.C. is set aside. Instead, the appellant-accused is convicted for offence punishable u/s. 304 Part-II I.P.C. and is sentenced to suffer R.I. for five years and to pay a fine of Rs. 1,000/-. in default, to suffer R.I. for two months. The bail bond of the appellant-accused shall stand cancelled. The appellant-accused is directed to surrender to jail within fortnight from today. Appeal partly allowed.