JUDGMENT Vishnu Sahai, J. - Through this appeal the appellant challenges the judgment and order dated 18-2-1995 passed by the Additional Sessions Judge. Greater Bombay in Sessions Case No. 274 of 1981, whereby he has been convicted and sentenced in the manner stated hereinafter: (i) under Section 302, I.P.C. to undergo rigorous imprisonment for life; and (ii) under Section 323, I.P.C. to suffer rigorous imprisonment for one month. The -substantive sentences of the appellant were ordered to run concurrently. 2. In short the prosecution case runs as under: The informant Nana Tatyaba Mohite. P.W. 2. was the brother of the deceased Uttam Tatyaba Mohite. They resided together in a hut situated at Azad Nagar. Ghatkopar. Bombay. On 63-1981 at about 11 p.m. both of them were discussing in a loud tone about the theft that had taken place sometime back at their house in village Tondavali about which they had learnt from a letter sent by their parents. At that time the appellant who was residing in a neighbouring hut came towards them and abused them saying that they were disturbing him. On that they stated that they were taking about their domestic problem and the appellant had no business to interfere. On this the appellant abused them and thereafter went back inside his hut returned with a screw driver and thrust the same on the right side forehead of Uttam. When the informant tried to intervene the appellant bite him on the middle finger of his left hand and also inflicted a fist blow over his right eye. This incident apart from the informant Nana Tatyaba Mohite was seen by Smt. Kousalya Mohite wife of the deceased Smt. Radhabai Govind Bhajnawal P.W. 4 and Mrs. Shobha Nana Mohite P.W. 5. It is said that Kousalya pulled the screw driver from the wound on Uttam's forehead. After assaulting Uttam and Nana the appellant ran away. Therefore the informant one Ramesh and others took Uttam in a taxi to Ghatkopar Police Station, where Radhabai stayed behind. Nana then took Uttam in the said taxi to Rajawadi Hospital. 3. At Rajawadi Hospital Uttam was pronounced dead by the doctor. Thereafter Nana Mohite alongwith Ramesh came to Ghatkopar Police Station. 4. The FIR of the incident was lodged by Nana Tatyaba Mohite P.W. 2 sometime between 3 a.m. to 4 a.m. the same night at Police Station Ghatkopar. Nana then took Uttam in the said taxi to Rajawadi Hospital. 3. At Rajawadi Hospital Uttam was pronounced dead by the doctor. Thereafter Nana Mohite alongwith Ramesh came to Ghatkopar Police Station. 4. The FIR of the incident was lodged by Nana Tatyaba Mohite P.W. 2 sometime between 3 a.m. to 4 a.m. the same night at Police Station Ghatkopar. It was recorded by P.S.I. Ramrao Nana Yadav P.W. 10. On its basis C.R. No. 145/1985 was registered. 5. The injuries of Nana Mohite were medically examined by Dr. Naresh Madanlal Khanna P.W. 9 Casualty Medical Officer of Rajawadi Hospital, Ghatkopar at 3.05 a.m. on the same night Dr. Khanna found teeth marks on left index finger. The autopsy on the corpse of Uttam Mohite was conducted on 7-3-1981 by Dr. Sub hash Anant Khanolkar P.W. 7. who found the following ante-mortem injuries on it: (1) incised stab wound 1.1 x 0.5 cm. on left forehead hair margin ragged upper angle and acute lower angle; (2) incised wound on the right wrist lateral side 0.8 cm. x 0.1 cm. skin deep. On internal examination doctor found damage to brain and fracture of skull. He opined that the said injuries were sufficient in the ordinary course of nature to cause death. 6. The case was investigated in the usual manner by P.S.I. Ramrao Nana Yadav P.W. 10. During the course of investigation he seized the weapon of assault viz. screw driver from Kousalya the wife of the deceased. After completing the investigation he submitted a charge-sheet against the appellant on 26-5-1985. 7. The case was committed to the Court of Sessions in the usual manner. Charges under Sections 302 and 323 I.P.C. were framed against the appellant to which he pleaded not guilty and claimed to be tried. His defence was that of denial. 8. During trial in all the prosecution examined 10 witnesses; 4 out of them viz. Nana Tatyaba Mohite. Kousalya Uttam Mohite. Smt. Radhabai Govind Bhajnawal and Mrs. Shobha Nana Mohite. PWs 2 to 5 respectively were examined as eye-witnesses. In defence no witness was examined. 9. The learned Trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. 10. We have heard Mr. C.K. Talekar for the appellant and Mr. R.Y. Mirza for the respondent. Shobha Nana Mohite. PWs 2 to 5 respectively were examined as eye-witnesses. In defence no witness was examined. 9. The learned Trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above. 10. We have heard Mr. C.K. Talekar for the appellant and Mr. R.Y. Mirza for the respondent. We have also perused the depositions of the prosecution witnesses the material exhibits proved by it; the statement of the appellant recorded under Section 313. Cr. P.C and the impugned judgment. In our view this appeal deserves to be partly allowed inasmuch as instead of an offence under Section 302, I.P.C. only one under Section 304(II), I.P.C. is made out. 11. We have examined the evidence of the four eye-witnesses and in our view it squarely establishes the involvement of the appellant in the incident. The said witnesses were natural witnesses of the incident inasmuch as two out of them viz. Nana Tatyaba Mohite and Kousalya Uttam Mohite were residing in the same hut wherein the deceased Uttam Mohite was living and the other two witnesses Smt. Radhabai Govind Bhajnawal and Mrs. Shobha Nana Mohite were residing in the immediate proximity of the hut of the deceased. All these four eye-witnesses have in unequivocable terms alleged that pursuant to an altercation between the appellant and the deceased Uttam the former immediately went to his hut brought a screw driver and with it inflicted a blow on the forehead of Uttam. 12. The said statement of the four eye-witnesses is corroborated by the presence of an incised stab wound on the left side forehead of the deceased, which in the opinion of the autopsy surgeon Dr. Subhash Anant Khanolkar P.W. 7, could be caused by an object like the screw driver. 13. The statement of these witnesses to the effect that the appellant bite the informant Nana Mohite on the middle finger of his right hand is corroborated by the circumstance that Dr. Naresh Madanlal Khanna, P.W. 9, who medically examined the informant, the same night at 3.05 a.m. found teeth marks on his left index finger. 14. 13. The statement of these witnesses to the effect that the appellant bite the informant Nana Mohite on the middle finger of his right hand is corroborated by the circumstance that Dr. Naresh Madanlal Khanna, P.W. 9, who medically examined the informant, the same night at 3.05 a.m. found teeth marks on his left index finger. 14. Assurance is also lent to the ocular account by the circumstance that the FIR of the incident was lodged promptly, sometimes between 3 a.m. to 4 a.m. that very night, at Police Station Ghatkopar by the informant Nana Mohite, In the said FIR the appellant is named and the prosecution story mentioned in para 2 has been set out. 5. Assurance is also lent to the prosecution case by the circumstances that the very next day i.e. 7-3-1981 P.S.I. Yadav prepared the spot panchanama, Exhibit 15, and attached the blood-stained weapon of assault, screw driver, which was handed over to him by Smt. Kousalya, the wife of the deceased. It is significant to point out that he took some blood-stained earth in possession from the place of the incident and the same contained human blood, of "A" group viz., the blood group of the deceased as per the report of the Chemical Analyst. In our view, the learned trial Judge was wholly justified in accepting the involvement of the appellant in the incident. We however, feel that the learned judge erred in convicting the appellant for the offence under Section 302 I.P.C, 16. In para 2 of this judgment we have indicated the circumstances in which the incident took place. It was the culminating point of an altercation which took place between the appellant and the deceased because the latter was talking loudly and the former protested on this score. The evidence is that an exchange of abuses also took place between the parties and in that situation the appellant immediately went to his hut, brought a screw drive and inflicted with the same a solitary blow on the forehead of the deceased. 17. The evidence is that an exchange of abuses also took place between the parties and in that situation the appellant immediately went to his hut, brought a screw drive and inflicted with the same a solitary blow on the forehead of the deceased. 17. In our view, considering the overall circumstances in which the incident took place, the case of the appellant would not fall in any of the four clauses of Section 300, I.P.C. but would fall under clause thirdly of Section 299, I.P.C. the breach of which is punishable under Part II of Section 304, I.P.C. The Supreme Court in para 15 of the often quoted case of Jawarlal v. State of Punjab1, has said that the mere circumstance that a blow lands on a particular part of the body, divorced from the circumstances in which it was inflicted, cannot be construed that it was intended to be inflicted on that part. On this ground in the said case the Supreme Court said that clause thirdly of Section 300, I.P.C. would not be applicable, inspite of the fact like in the present case the Doctor had stated that the injury was sufficient in the ordinary course of nature to cause death. We feel that the said ratio would apply to the facts of this case also and the appellant, instead of the offence under Section 302, I.P.C., would be guilty for one under Section 304(II), I.P.C. 18. We however, feel that there is no infirmity in the conviction' of the appellant for the offence under Section 323, I.P.C. That is founded on the appellant's act of biting the informant Nana Mohit on the middle finger of his left hand and as mentioned earlier. Dr. Khanna found injury attributable to teeth bite on the left index finger of Nan a Mohite. 19. The only question which remains is the sentence to be awarded to the appellant for the offence under Section 304(11), I.P.C. Considering the overall circumstances in our view a sentence of 5 years R.I. would meet the ends of justice. 20. In the result this appeal is partly allowed. Although we uphold the conviction of the appellant for the offence under Section 323, I.P.C. and the sentence awarded to him thereunder but we acquit him for the offence under Section 302, I.P.C. and set aside his sentence of life imprisonment on that count. 20. In the result this appeal is partly allowed. Although we uphold the conviction of the appellant for the offence under Section 323, I.P.C. and the sentence awarded to him thereunder but we acquit him for the offence under Section 302, I.P.C. and set aside his sentence of life imprisonment on that count. Instead we find him guilty for an offence under Section 304 (II), I.P.C. and sentence him to undergo 5 years R.I. The appellant is on bail. He shall be taken into custody forthwith to serve out his sentence. Appeal allowed partly. 1. A.1.R. 1983 S.C. 284.