JUDGMENT - SAHAI VISHNU, J.:---This appeal was on Admission Board. Since, in our view, only an offence under section 304(2), Indian Penal Code is made out against the appellant; he has already been in jail for 3 years and 3 months the record and proceedings have been received; and the learned Counsel for the parties have no objection for finally disposing off the appeal, we are deciding it finally. 2. Through this appeal, the appellant challenges the judgment and order dated 10-3-1997 passed by the Additional Sessions Judge, Thane in Sessions Case No. 368 of 1995, convicting and sentencing him to undergo imprisonment for life, for an offence under section 302, Indian Penal Code.' 3. In short, the prosecution case is that on 7-7-1994, at 3 p.m. the appellant entered Aradhana Theatre, in Thane, where the film "DO FUNTUSH" was being screened. The gate-keeper Gopal Tejgi asked the appellant whether he was having a ticket. On that the appellant, abused him. Hearing the abuses, one Pramod Tambe, who was in the cinema hall, came and asked the appellant as to why he had abused Gopal. An exchange of hot words and a scuffle between Pramod Tambe and the appellant, ensued, and during the course of the same, the appellant took out a knife from the pocket of his pant, and inflicted a solitary knife blow on the chest of Pramod Tambe. The appellant was arrested on the spot and was detained in the Manager's cabin. 4. The Manager of the Cinema deputed one D'Souza, to inform the police about the incident and within a short time, police came, from Police Station, Naupada and took the appellant to the Police Station. 5. The F.I.R. of the incident was lodged by Gopal Tejgi, P.W. 1 at Police Station, Naupada. It is Exhibit 9. The post-mortem examination of the corpse of the deceased was conducted on 7-7-1994, by Dr. Rajendra Gunay, P.W. 7. He found an incised wound on the chest, left side, 1" inferior to nipple vertical in direction 2 cm x ½ cm x 9 cm. Beneath the said injury, the doctor found perforation of right ventricle. In the opinion of Dr. Gunay, the injury to heart was sufficient to cause death and could be caused by a sharp edged weapon like a knife. 6. The case was investigated in the usual manner by P.S.I. Patil, P.W. 8. Beneath the said injury, the doctor found perforation of right ventricle. In the opinion of Dr. Gunay, the injury to heart was sufficient to cause death and could be caused by a sharp edged weapon like a knife. 6. The case was investigated in the usual manner by P.S.I. Patil, P.W. 8. He found blood-stains on the place of the incident and collected them under a panchanama. After completing the investigation, he submitted a charge-sheet against the appellant. 7. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellant was charged for an offence under section 302, Indian Penal Code. He pleaded not guilty to the said charge and claimed to be tried. During the trial, in all, the prosecution examined as many as 8 witnesses, 3 of them namely Gopal Tejgi, Vilas Bhosale and Ramakant Sonji, P.Ws. 1, 2 and 3 respectively were examined as eye-witnesses. In defence, no witness was examined. The trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. Hence, this appeal. 8. We have heard Ms. Aruna Kamath for the appellant and Ms. J.S. Pawar. Additional Public Prosecutor for the State of Maharashtra-respondent. We have also perused the depositions of the prosecution witnesses, the material Exhibits, proved by the prosecution; the statement of the appellant under section 313, Criminal Procedure Code, and the impugned judgment. After carefully reflecting over the matter, we are squarely satisfied that the trial Judge erred in convicting the appellant for an offence under section 302, Indian Penal Code. In our judgment, the appellant should have been convicted only for an offence under section 304(2), Indian Penal Code. 9. So far as the involvement of the appellant in the incident is concerned, in our view it is established beyond any pale of doubt. There is the evidence of the three eye-witnesses Gopal Tejgi P.W. 1, Vilas Bhosale, P.W. 2 and Ramakant Sonji, P.W. 3 to prove the same. In para 3, we have set out the prosecution story on the basis of the averments contained in the examination-in-chief of the said witnesses. In short, these witnesses have stated that on 7-7-1994, at about 3 p.m. the appellant entered the Aradhana theatre in Thane where the film 'DO FUNTUSH' was being screened. In para 3, we have set out the prosecution story on the basis of the averments contained in the examination-in-chief of the said witnesses. In short, these witnesses have stated that on 7-7-1994, at about 3 p.m. the appellant entered the Aradhana theatre in Thane where the film 'DO FUNTUSH' was being screened. The gatekeeper (Gopal Tejgi) asked the appellant to show him the ticket and on the same, there was an altercation between him and the appellant. One Pramod Tembe, who happened to be present there, intervened. Again, there was an altercation between him and the appellant and during the course of the same, the appellant took out a knife from the pant and inflicted a solitary knife blow on his chest. Thereafter, he was apprehended on the spot. We have gone through the statements of the said eye-witnesses and we find that they suffer from no infirmity on the basis of which, we could be persuaded to reject them. We find that all the three eye-witnesses were employees of Aradhana theatre and at the time of the incident, were on duty. Hence, their presence was perfectly natural. We again find that they had no malice or rancour against the appellant and in the absence of the same, we are not prepared to believe that they would have falsely implicated the appellant, leaving out the real assailant. We further find that their statements to the effect that the appellant inflicted a blow with a knife on the chest of the deceased is corroborated by the solitary ante mortem injury, which was a incised wound, suffered by the deceased. The circumstance that the appellant was apprehended on the spot, in our view, clinches his involvement in the incident. He has failed to offer any satisfactory explanation explaining his spot arrest. 10. In our view, the trial Judge was wholly justified in accepting the involvement of the appellant in the incident. 11. We are only left with one question namely that of offence. In our view, the learned trial Judge erred in convicting the appellant, for an offence punishable under section 302, Indian Penal Code. On the own showing of the prosecution, there was no malice or ill will either between the appellant and the informant Gopal Tejgi or between the appellant and the deceased Pramod Tembe. In our view, the learned trial Judge erred in convicting the appellant, for an offence punishable under section 302, Indian Penal Code. On the own showing of the prosecution, there was no malice or ill will either between the appellant and the informant Gopal Tejgi or between the appellant and the deceased Pramod Tembe. All of a sudden, a quarrel took place between the appellant and Gopal Tejgi when the appellant entered the Aradhana theatre, and Gopal Tejgi, asked him to show the ticket. During the course of the quarrel, there was an altercation and an exchange of abuses, between them. It was in that situation, that the deceased Pramod Tembe, intervened. Again a quarrel and exchange of abuses, between the appellant and Pramod Tembe took place and during the course of the same, the appellant inflicted a solitary knife blow on the person of Pramod Tembe. In the said factual matrix, in our view, the offence made out against the appellant, would only be one under section 304(2), Indian Penal Code and not under section 302, Indian Penal Code. Ms. Pawar, Additional Public Prosecutor, strenuously urged that in-as-much as opinion of the Autopsy Surgeon is that the injuries suffered by the deceased were sufficient in the ordinary course of nature to cause death, the act of the appellant would fall squarely within the ambit of the clause thirdly of section 300, Indian Penal Code. The submission was certainly attractive on the first blush, but, on a closer scrutiny, we were reminded of the trite that first impressions are often deceptive. 12. In this connection, it would be pertinent to refer to the observations of the Supreme Court in the cases reported in A.I.R. 1982 S.C. 126, (Kulwant Rai v. State of Punjab)1, and A.I.R. 1983 S.C. 284, (Jawahar Lal v. State of Punjab)2. In A.I.R. 1982 S.C. 126 (supra), the facts were that there was no prior enmity between the appellant and the deceased a short quarrel had proceeded the assault and during the course of that quarrel, the appellant gave one blow with a dagger on the epigastrium region. The Sessions Judge, convicted the appellant for an offence under section 302, Indian Penal Code and the High Court dismissed the appeal. The Sessions Judge, convicted the appellant for an offence under section 302, Indian Penal Code and the High Court dismissed the appeal. Before the Supreme Court, it was urged that since the medical evidence was to the effect that the injury was sufficient in the ordinary course of nature, to cause death, clause thirdly of section 300, Indian Penal Code, would apply. The Supreme Court, brushed aside the said contention, and took the view that in the circumstances, in which the incident took place, it could not be said that the appellant intended inflicting an injury which was sufficient in the ordinary course of nature, to cause death. In that view of the matter, the Supreme Court felt that clause thirdly of section 300. Indian Penal Code would not be attracted. Hence, it converted the conviction of the appellant from 302, Indian Penal Code to 304 (II), Indian Penal Code. In A.I.R. 1983 S.C. 284 (supra) the facts were that there was no background of enmity between the appellant and the deceased and the former gave one dagger blow on the chest of the latter when he passed by the front of his shop and the resultant injury in the opinion of the Autopsy Surgeon, was sufficient in the ordinary course of nature to cause death of the deceased. The trial Court, convicted Jawaharlal for an offence under section 302, Indian Penal Code, and the High Court dismissed his appeal. Before the Supreme Court, on behalf of the prosecution, it was urged that the act of Jawaharlal would fall squarely within the ambit of clause thirdly of section 300, Indian Penal Code. The Supreme Court in para 15 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." It took the view that there was no intention on the part of Jawaharlal to inflict the injury which he inflicted and that being so, his act would not fall within clause thirdly of section 300. Indian Penal Code, but instead would fall under section 304(II), Indian Penal Code. 13. In our view, the ratio laid down in A.I.R. 1982 S.C. 126 and A.I.R. 1983 S.C. 284 would squarely apply to the facts of this case. Indian Penal Code, but instead would fall under section 304(II), Indian Penal Code. 13. In our view, the ratio laid down in A.I.R. 1982 S.C. 126 and A.I.R. 1983 S.C. 284 would squarely apply to the facts of this case. We feel that the circumstances in which the appellant inflicted a solitary knife blow, on Pramod Tembe, who was not the original target but, an intervenor, it cannot be said that the appellant intended to cause the injury, which was sufficient in the ordinary course of nature to cause death. For the said reasons, we feel that the trial Judge should have convicted the appellant for an offence under section 304(II), Indian Penal Code and not under section 302, Indian Penal Code. 14. Coming to the question of sentence, we find that the appellant was aged about 22 years at the time of the incident. In our view, considering his age and the overall circumstances, the ends of justice, would be squarely satisfied if the appellant is directed to undergo a sentence of 5 years RI. 15. In the result, this appeal is partly allowed and partly dismissed. We acquit the appellant for the offence under section 302, Indian Penal Code and set aside his conviction and sentence of life imprisonment on that count. Instead, we find the appellant guilty for the offence under section 304(II) and sentence him to undergo 5 years RI, in the computation of which, the period served by the appellant as an undertrial and convict, shall be excluded. The appellant is in jail and shall be released only after he serves out his sentence, provided he is not wanted in any other case. Office is directed to communicate the operative part of our judgment, to the appellant, the trial Court and the Superintendent of the Jail, wherein the appellant is serving out his sentence. Before parting with this judgment, we would like to put on record our appreciation for the assistance rendered to us by Ms. Aruna Kamath and Ms. J.S. Pawar, Additional Public Prosecutor in the disposal of this appeal. It was all the more commendable because, the appeal was on Admission Board, and in hardly any time, they prepared the same and left nothing relevant which could be canvassed from the side of the parties, they were representing. Appeal partly allowed. -----