Judgment VISHNU SAHAI, J. ( 1 ) THE appellant aggrieved by the Judgment and order dated 16-6-1994, passed by the V Additional Sessions Judge, Solapur, in sessions Case No. 229 of 1991, convicting and sentencing him to undergo RI for life, for an offence under section 302, Indian Penal Code, has come up in appeal before us. ( 2 ) IN short, the prosecution runs as under : On 25-11-1991, the deceased Dhondiba Yellu karve was grazing cattle of Ravsaheb Mahimkar, PW 6, in the land of the latter situated within the limits of village Antroli, Taluka South Solapur, district Solapur. At about 12 noon, the appellant reprimanded Dhondiba for grazing the cattle in his field. On this score, there was a quarrel between the appellant and Dhondiba and during the course of the same, the appellant gave three blows with axe; the first on the hand of Dhondiba, the second on the left leg and the third on the upper side of the left thigh. It is alleged that hearing the cries of Dhondiba, a large number of people, including Jagannath PW 4, collected there. Jagannath questioned Dhondiba as to who had assaulted him and on that Dhondiba told him that it was the appellant who had assaulted him with an axe. Jagannath in his evidence stated that he had seen the appellant giving an axe blow on the left leg of Dhondiba. It is alleged that when Jagannath asked dhondiba the reason for the appellant assaulting him, he replied that since his cattle had grazed in the land of the appellant, he was assaulted by him. Thereafter, Jagannath went and informed ravsaheb Mahimkar. A jeep was arranged for and on the said jeep, Dhondiba who was in a precariously injured condition, was taken to police station mandrup. Evidence of PSO Ramchandra Mohite PW 7, shows that on 25-5-1991, at about 2 p. m. Dhondiba was brought in a jeep at the Mandrup police station. Since Dhondiba was precariously injured, ramchandra Mohite gave a yadi for his medical examination to the Medical Officer of Primary health Centre, Mandrup. However, as Dhondiba was hovering between life and death, it was thought proper, at Primary health Centre Mandrup, to refer him to Civil hospital, Solapur. ( 3 ) INJURIES of Dhondiba were medically examined by Dr. Guruppa Nakamote PW 11, the same day at Civil Hospital, Solapur. Dr. However, as Dhondiba was hovering between life and death, it was thought proper, at Primary health Centre Mandrup, to refer him to Civil hospital, Solapur. ( 3 ) INJURIES of Dhondiba were medically examined by Dr. Guruppa Nakamote PW 11, the same day at Civil Hospital, Solapur. Dr. Nakamote found that he had sustained two injuries namely : (1)Cut injuries left ankle region, posterior aspect bleeding plus involving fracture of tibia fibula. (2)Incised wound on left buttock region, lateral aspect 3 x 6 bone deep with pelvic bone fracture bleeding plus. ( 4 ) EVIDENCE of Ramchandra Mohite PW 7 shows that on coming to know that Dhondiba had been sent to Civil Hospital Solapur, he issued a yadi to ASI bhagwan Nimbalkar PW 13 to record his FIR. Evidence of ASI Nimbalkar PW 13 shows that onreceiving the yadi, he proceeded to Dr. Nakamote pw 11 and enquired from him whether Dhondiba was in a position to make a statement and on receiving a reply in the affirmative proceeded to record the same. Statement of Dhondiba is Exhibit 45 and bears endorsement of Dr. Nakamote to the effect that Dhondiba was in a fit condition to make the said statement. ( 5 ) EVIDENCE of Ramchandra Mohite PW 7 further shows that ASI Nimbalkar PW 13 gave him Dhondiba s statement Exhibit 45 and on the basis of the same, he registered C. R. No. 12 of 1991 under section 326/504 of Indian Penal Code and section 135 of the B. P. Act. On Dhondiba s death which took place on the date of incident itself it was converted to section 302, Indian Penal Code. ( 6 ) INVESTIGATION was conducted in the usual manner. On the date of the incident itself i. e. 25- 5-1991, Ramchandra Mohite asked PHC Nabilal Shaikh pw 8 to proceed to the scene of the offence. He went there and attached the blood-stained earth and plain earth under a panchanama. Bulk of the investigation was conducted by PW 14 PSI Tanajirao Bhise. On the night of the incident itself, he recorded statement of jagannath and the next day, the statement of mahimkar PW 6. On the night of the incident, at about 10 p. m. he arrested the appellant. On 27-5- 1991, the appellant showed his willingness to get the weapon of assault recovered. On the night of the incident itself, he recorded statement of jagannath and the next day, the statement of mahimkar PW 6. On the night of the incident, at about 10 p. m. he arrested the appellant. On 27-5- 1991, the appellant showed his willingness to get the weapon of assault recovered. The said information was reduced in writing under a panchanama Exhibit 20. Thereafter, along with the appellant public panchas, out of whom PW 3 Shivaji koli was examined, PSI Bhise proceeded to Village antroli, wherein in his field, after removing some dry leaves, the appellant took out a blood-stained axe. The said recovery was made under a panchanama. During the course of investigation, psi Bhise was handed over the blood-stained dhoti and banian of the appellant, by the wife of the appellant. The last phase of the investigation was conducted by PSI Parshuram Mane PW 10. His evidence shows that PSI Bhise handed over the investigation to him on 30-5-1991. PSI Mane sent the blood-stained articles to the Chemical Analyst, through constable Ahmed sayed PW 9. Finally, after completing the investigation, he submitted the charge-sheet on 31- 7-1991. ( 7 ) GOING backwards, the autopsy on the body of the deceased was conducted by Dr. Subhashchandra sardar PW 5. Dr. Sardar found five ante-mortem injuries on the corpse. Three of them namely injuries Nos. 1, 2 and 3 have been described as incised wounds and were situated on the buttock region, left leg and left palmer region and two of them namely injuries Nos. 4 and 5 have been described as cuts (gaping present) on the left thigh. Dr. Sardar found fracture of lower third tibia and fibula of the left leg; fracture of pelvis on the left side; and dislocation on the left ankle joint. In the opinion of Dr. Sardar, injuries 1 and 2 were fatal because important blood vessels and nerves were cut and were sufficient in the ordinary course of nature to cause death. He opined that the deceased died on account of trauma and haemorrhage as a result of amputation of left 1/3rd leg and injury to femoral artery. During cross examination, Dr. Sardar stated that had the femoral artery not been cut, the deceased would not have died. ( 8 ) THE case was committed to the Court of sessions in the usual manner. During cross examination, Dr. Sardar stated that had the femoral artery not been cut, the deceased would not have died. ( 8 ) THE case was committed to the Court of sessions in the usual manner. In the trial Court, the appellant was charged for offences punishable under sections 302, Indian Penal Code, 37 (1) and 135 of B. P. Act. To the said charges, he pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined 14 witnesses. The mainstay of the prosecution evidence was the FIR which was tendered as dying declaration of the deceased Dhondiba and the evidence of ocular witness Jagannath PW 4. In defence, no witness was examined. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. ( 9 ) WE have heard Mr. M. A. Chaudhary for the appellant and Mrs. J. S. Pawar, Additional Public prosecutor for the respondent-State of maharashtra. We have perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution; the statement of the appellant recorded under section 313, Criminal Procedure Code, and the impugned judgment. After thoughtfully reflecting over the matter, we are of the Judgment that this appeal deserves to be partly allowed and partly dismissed. In our view, the trial Judge was in error in convicting the appellant for an offence under section 302, indian Penal Code and instead should have convicted him for an offence under section 304 (2), indian Penal Code. ( 10 ) THE first question is whether the involvement of the appellant in the incident has been established beyond pale of reasonable doubt. In our Judgment, answer to that question is in the affirmative. 10a. As mentioned earlier, the sheet-anchor of the prosecution evidence is the statement of the deceased Dhondiba, which, was recorded prior to his death in Civil Hospital Solapur, by ASI nimbalkar and since he died thereafter, it would be admissible under section 32 of the Indian evidence Act, as a dying declaration and the ocular account furnished by Jagannath Karve, PW 4. As a matter of fact, after the decision of the apex Court rendered in the case of Khushal Rao vs. State of Bom. As a matter of fact, after the decision of the apex Court rendered in the case of Khushal Rao vs. State of Bom. , AIR 1958 SC 22 , the settled law is that conviction can be recorded/sustained on an uncorroborated dying declaration, provided it inspires confidence. In the instant case, we make no bones in observing that the dying declaration of Dhondiba recorded at the Civil Hospital solapur, by ASI Nimbalkar PW 13inspires implicit confidence and is a truthful document. In the dying declaration itself, there is endorsement of dr. Nakamote PW 11 to the effect that Dhondiba was in a fit condition to make the same. The manner of the incident as unfolded in the dying declaration namely that as a sequel to the quarrel, between the appellant and Dhondiba, on the question that the cattle of the latter had grazed in the land of the former, the former assaulted the latter thrice with an axe, once each on hand, left leg and left thigh, is corroborated by the medical evidence to which we have referred to in paragraphs 3 and 7 of judgment. Both Dr. Nakamote and Dr. Sardar found incised injuries on the said parts of the body of dhondiba. Dr. Sardar, the autopsy surgeon, has categorically stated that injuries of the deceased could be caused by the axe shown to him (the axe recovered on the pointing out of the appellant ). There is no evidence to indicate that at the time when dying declaration of Dhondiba was recorded, he was not in a fit mental condition to make the statement. We find that in the cross- examination neither any question has been put to this effect to Dr. Nakamote nor to ASI Nimbalkar. At any rate, in our view sound common sense says that the speech faculty of the deceased who had only received injuries on the left palmer surface, left leg and left thigh, would not have been impaired as of result of the injuries inflicted on him. The place of incident as set out in the dying declaration is corroborated by the circumstance that on the same, PHC Nabilal Shaikh PW 8, on the date of the incident itself, found blood-stained earth. On the said earth, the Chemical Analyst found blood of the blood group of the deceased namely AB. The place of incident as set out in the dying declaration is corroborated by the circumstance that on the same, PHC Nabilal Shaikh PW 8, on the date of the incident itself, found blood-stained earth. On the said earth, the Chemical Analyst found blood of the blood group of the deceased namely AB. It may be mentioned that blood group of the appellant was B. In our view, the instant was one of those cases, where on the dying declaration of the deceased itself, the involvement of the appellant in the incident could have been said to be established. We may mention that the learned counsel for the appellant did not challenge the involvement of the appellant, but we have gone into this exercise because no conviction can be recorded/sustained on a concession made by the counsel of the appellant. The burden in a criminal case is always on the prosecution to establish the guilt of the accused beyond the pale of reasonable doubt. 10b. Fortunately, in this case there is plurality of evidence in the form of statement of jagannath Karve PW 4. From his evidence, it appears that he is an wholly natural witness of the incident. In his statement he stated that at the time of the incident, he was in the Field of beldar, where he was grazing cattle, and heard shouts of Dhondiba who was also known as Anna and on hearing the same, reached the place where the appellant was assaulting Dhondiba. He saw him assaulting Dhondiba with an axe on the left leg. He further stated that Dhondiba told him that since he had grazed his cattle in the land of the appellant, the appellant assaulted him. The manner of incident as given by him is also in conformity with the medical evidence. We find that this witness had no rancour or malice against the appellant and in the absence of the same, we are not prepared to accept that without any reason or rhyme, he would have falsely implicated the appellant. In our view, his testimony inspires implicit confidence and also by itself is sufficient to prove the involvement of the appellant in the incident. In our view, his testimony inspires implicit confidence and also by itself is sufficient to prove the involvement of the appellant in the incident. ( 11 ) APART from the above, tremendous assurance is forthcoming to the prosecution case, by the circumstance that two days after the incident i. e. on 27-5-1991, a blood-stained axe which was concealed below dry leaves, was recovered on the pointing out of the appellant in the presence of public panchas, out of whom one namely Shivaji koli PW 3, has been examined by the prosecution. We have gone through the testimony of Shivaji Koli and the police witness PSI Tanajirao Bhise PW 14 and find that their evidence inspires implicit confidence. It is significant to point out that Shivaji koli is an independent witness, having no axe to grind against the appellant and in that view of the matter, unless the recovery would not have been genuine, he would not have falsely deposed about it. It is true that PSI Tanajirao Bhise is a police witness but, way back in the year 1956, the supreme Court, in the case reported in AIR 1956 SC 217 , Aher Raja Khima vs. State of Saurashtra, held in para 40 that the presumption that a person acts honestly applies equally to a Police Officer and it is not a sound rule of appreciation of evidence to approach the testimony of a police witness with distrust. We find no blemish in the evidence of psi Bhise. It is significant to point out that the axe was sent to the Chemical Analyst who found blood group of AB (blood group of the deceased) on it. ( 12 ) IN our view, the learned trial Judge was wholly justified in holding the involvement of the appellant in the incident as established beyond any shadow of doubt. ( 13 ) THIS leaves us with one question namely the offence made out and this is the bone of contention between the counsel for the parties. Whereas, Mr. A. M. Chaudhary learned counsel for the appellant strenuously urged that even if the prosecution case is accepted in entirety, no case beyond that stipulated by section 304 (2), indian Penal Code would be made out, Mrs. Whereas, Mr. A. M. Chaudhary learned counsel for the appellant strenuously urged that even if the prosecution case is accepted in entirety, no case beyond that stipulated by section 304 (2), indian Penal Code would be made out, Mrs. J. S. Pawar, Additional Public Prosecutor with her customary tenacity urged that there cannot be even an iota of doubt that the offence made out would only be one under section 302, Indian Penal Code. We now, propose to examine this highly contentious question. ( 14 ) MRS. Pawar urged that in the instant case, the ratio laid down by the Supreme Court in the time-honoured decision of Virsa Singh vs. State of punjab reported in AIR 1958 SC 465 , would apply on all fours. She urged that the substance of the ratio as laid down by the Apex Court, in para 12 of the said decision, is that for an offence to fall within the ambit of clause thirdly of section 300, Indian Penal Code, the injuries caused should be those intended, in contra-distinction to being accidental, and they, as per the medical evidence should be sufficient in the ordinary course of nature to cause death. Mrs. Pawar urged that inasmuch as the autopsy surgeon Dr. Sardar, candidly stated that the injury Nos. 1 and 2 of the deceased were fatal and sufficient in the ordinary course of nature to cause death and there being nothing to indicate that they were accidental, this is a tailor made illustration of the application of clause thirdly of section 300, Indian Penal Code. ( 15 ) WE must frankly admit that on the first blush, the submission canvassed by Mrs. Pawar appeared to be pregnant with merit but, a deeper scrutiny reminded us of the time-honoured saying that first impressions are often deceptive. ( 16 ) IN our view, the offence would only fall in the ambit of section 304 (2), Indian Penal Code. We find in the instant case that autopsy surgeon Dr. Sardar in his cross-examination has candidly stated that had the femoral artery of the deceased been not ruptured, he would not have died. This admission was not challenged by any cross-examination on the part of the Public prosecutor or sought to be probed by the learned trial Judge. This being the position, the said admission of Dr. Sardar in his cross-examination has candidly stated that had the femoral artery of the deceased been not ruptured, he would not have died. This admission was not challenged by any cross-examination on the part of the Public prosecutor or sought to be probed by the learned trial Judge. This being the position, the said admission of Dr. Sardar, which appears to be in consonance with common sense, has to be accepted by us. 16a. Clause thirdly of section 300, Indian penal Code provides that culpable homicide would be murder if the act by which death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. The Supreme Court in AIR 1958 SC 465 (supra) in para 12 has held that an essential ingredient for the application of clause thirdly is, that there should be an intention to inflict the bodily injury which has been inflicted. That intention, is not only in respect of the external injury which has been inflicted but, also in relation to the internal injury inflicted. We feel in the instant case that though it could be said that the appellant intended inflicting the external injury with an axe on the left thigh of the deceased, for there is nothing in evidence to show that it was accidental, but it cannot be said, with reasonable certainty, that he intended causing the internal injury which involved the rupture of the femoral artery; an artery which was beneath the said external injury. That being the position, in our Judgment clause thirdly would have no application. What can be said is that when the appellant assaulted the deceased on his left thigh, he had the knowledge contemplated by clause thirdly of section 299, indian Penal Code that he was likely to cause death of the deceased and that being so, he would only be guilty for an offence under section 304 (11), Indian Penal Code. In this connection, it would be pertinent to refer to the three decisions of the Supreme Court, namely those reported in : (i) AIR 1968 SC 1390 , Laxman Nikalje vs. State of Maharashtra. (ii) AIR 1968 SC 867 , Harjinder Singh vs. Delhi Administration. (iii) AIR 1981 SC 1441 , Gokul Patil vs. State of Maharashtra. In this connection, it would be pertinent to refer to the three decisions of the Supreme Court, namely those reported in : (i) AIR 1968 SC 1390 , Laxman Nikalje vs. State of Maharashtra. (ii) AIR 1968 SC 867 , Harjinder Singh vs. Delhi Administration. (iii) AIR 1981 SC 1441 , Gokul Patil vs. State of Maharashtra. ( 17 ) WE now propose analysing each of the said decisions. 17a. In AIR 1968 SC 1390 (supra), the appellant had assaulted the deceased with a knife on the chest resulting in an injury which was below the outer 1/3rd region of clavicle and penetrating into the chest cavity. The said injury was described by the doctor as sufficient in the ordinary course of nature to cause death. Before the Supreme Court, the submission made by Mrs. Pawar, namely that inasmuch as the said injury was sufficient in the ordinary course of nature to cause death, clause thirdly of section 300, Indian penal Code, would have application, was canvassed. Hidaytullah, Chief Justice (as he then was) repelled the said submission in para 11 and observed that for application of clause thirdly, there should not merely be an intention to inflict the external inflicted but also to cause the internal injury caused. The learned Chief Justice observed that no intention could be fastened to the appellant to cause rupture of auxillary artery. Consequently, The Chief Justice felt that the case would not fall in the dragnet of clause thirdly of section 300, Indian Penal Code but, under clause thirdly of section 299, Indian Penal code, the breach of which is punishable under section 304 (2), Indian Penal Code. His Lordship felt that when the appellant assaulted the deceased on the chest region, it could be reasonably inferred that he had the knowledge that he could rupture the auxillary artery. Hence, the conviction of the appellant under section 302, indian Penal Code was set aside and instead he was convicted and sentenced to undergo 7 years RI under section 304 (2), Indian Penal Code. 17b. In AIR 1968 SC 867 (supra), pursuant to a knife assault by the appellant a stab-wound bearing dimensions of 1 x x depth? on left thigh upper and below inguinal ligament was caused to the deceased. On internal examination, femoral artery was found to be damaged. 17b. In AIR 1968 SC 867 (supra), pursuant to a knife assault by the appellant a stab-wound bearing dimensions of 1 x x depth? on left thigh upper and below inguinal ligament was caused to the deceased. On internal examination, femoral artery was found to be damaged. The same argument which was canvassed before the Apex Court in AIR 1968 SC 1390 (supra) was canvassed on behalf of the prosecution namely that inasmuch as the injury inflicted was sufficient in the ordinary course of nature to cause death, according to the medical witness, the offence would fall within the ambit of clause thirdly of section 300, Indian Penal code. Repelling the argument, the Supreme Court in para 9, observed that on the facts of the case, it could not be said with any definitiveness that the appellant aimed the blow on this part of the thigh knowing that it would rupture artery. It felt that on the facts of the case, only an offence under section 304, Part I, Indian Penal Code was made out and consequently, converted the conviction of the appellant from section 302, Indian Penal Code to that under section 304, Part I, Indian Penal code and sentenced him to undergo seven years RI. 17c. In AIR 1981 SC 1441 (supra) as a sequel of the assault with a knife, near the clavicle region, superior vanacava was cut and again the argument canvassed in AIR 1968 SC 1320 (supra) that inasmuch as the said injury, was sufficient in the ordinary course of nature to cause death, conviction of the appellant had been correctly recorded by the High Court under section 302, indian Penal Code was canvassed from the side of the prosecution. Rejecting the said argument and relying upon AIR 1968 SC 1390 and AIR 1968 SC 867 (supra), A. D. Khosal, J. speaking for the Court, took the same view as in AIR 1968 SC 1390 and held that there was no intention to inflict the internal injury leading to the rupture of superior vanacava and consequently, converted the conviction of the appellant from section 302, indian Penal Code to that under section 304 (2), indian Penal Code and sentenced him to undergo five years RI. ( 18 ) IN the instant case not only on account of the ratio laid down in the said cases of the supreme Court would the offence fall in the ambit of section 304 (2), Indian Penal Code but also on account of the peculiar circumstances in which the incident took place. The dying declaration of the deceased Dhondiba reveals that the assault on him by the appellant with an axe was a sequel to a sudden quarrel occasioned on account of his cattle grazing in the field of the appellant. It also shows that only three axe blows were given by the appellant and all three of them were on non-vital parts of the body, one each on, palmer surface of hand, left leg and left thigh. In our view, these facts lead to the irresistible inference that the appellant did not want to commit the murder of the deceased. However, considering the fact that the weapon used by the appellant was an axe and the force with which it was used was such that extensive internal damage resulting in the fracture on left tibia fibula and amputation of the lower 1/3rd of left leg and rupture of femoral artery was the result, it could be reasonably inferred that the act of the appellant would fall within the clause thirdly of section 299, Indian penal Code, breach of which is punishable under section 304 (2), Indian Penal Code. ( 19 ) BEFORE parting with the Judgment, we would be failing in our fairness if we do not refer to the three decisions of the Supreme Court cited by mrs. Pawar. They are : (i) AIR 1977 SC 45 , State of A. P. vs. Rayavarapu Punnayya; (ii) AIR 1979 SC 1006 , Bakhtawar vs. The State of Haryana; and (iii) AIR 1986 SC 683 , Jaspal Singh vs. State of Punjab. ( 20 ) WE have gone through the aforesaid decisions and we find that they were rendered on the facts peculiar to them. In our view, they have no application to the instant case.