JUDGMENT - SAHAI VISHNU, J.:---The appellant aggrieved by the judgment and order dated 20-6-1995 passed by the Additional Sessions Judge, Raigad-Alibag, in Sessions Case No. 111 of 1994, convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer R.I. for six months, for an offence under section 302, Indian Penal Code, has come up in appeal before us. 2. In short the prosecution case runs as under:--- The appellant was the husband of the deceased Laxmibai. At the time of the incident he was staying with her in a house in village Pali-Budruk Taluka Khalapur, District Raigad. In his immediate proximity, was living his married daughter Vimal Katikari P.W. 1 and his brother-in-law Bhiva Waghmare P.W. 3. The appellant and the deceased were working at the house of one, Laxman More. The appellant was addicted to liquor and on that score was constantly demanding money from Laxmibai. Since Laxmibai had to maintain two children, she often was reluctant to give him money. Hence, quarrels between the appellant and Laxmibai used to take place. On 7-8-1993, at about 8 p.m. when Vimal Katikari P.W. 1 was having dinner her brother Sham came and informed her that the appellant was assaulting Laxmibai. Consequently, she went to the house of the appellant. Bhiva Waghmare P.W. 3 also came there. They saw that the appellant was inflicting kick blows on Laxmibai. The appellant felled Laxmibai on the ground and also inflicted fist blows on her chest. When Vimal tried to intervenue, he slapped her. Evidence of Bhiva Waghmare P.W. 3 also shows that the appellant took out a brick from the oven and assaulted Laxmibai with the same on her chest and while assaulting her he had made her naked. Bhiva's evidence further shows that when he tried to intervene, the appellant threatened him and told him to mind his own business. After the appellant had stopped assaulting Laxmibai, Vimal and Bhiva went away. At about midnight, Bhiva heard Laxmibai's crying "Ah meli ah meli" (I am dying, I am dying). But he did not go to the appellant's house. In the morning, his mother went to see Laxmibai and when she came back, she told him to go and see whether Laxmibai was alive. Consequently, Bhiva went to the appellant's house and found that Laxmibai was dead. But he did not go to the appellant's house. In the morning, his mother went to see Laxmibai and when she came back, she told him to go and see whether Laxmibai was alive. Consequently, Bhiva went to the appellant's house and found that Laxmibai was dead. Blood was cozing out from her private parts. Bhiva thereafter, went and informed the Police Patil. 3. The F.I.R. was lodged by Bhiva on 8-8-1993 at 11.15 a.m. at Police Station Khalapur. It was recorded by P.S.I. Vazir Shaikh P.W. 4, who, on its basis registered C.R. No. 126 of 1993 under section 302, Indian Penal Code. 4. The investigation was conducted in the usual manner by P.S.I. Shaikh. 5. Going backwards, the autopsy on the corpse of Laxmibai was conducted on 9-8-1993 by Dr. Trimbak Gomsale P.W. 2 and Dr. Gunavat (not examined). The autopsy report reveals the following ante-mortem injuries on the dead body of Laxmibai:--- "1. Abrasion on chest left side below nipple 4 cm. x 4 cm. 2. Abrasion on back scapular and back 3 cm. x 30 cm. 3. Abrasion on right gluteal region 15 cm. x 15 cm. 4. On palpation fracture 5th to 8th ribs anteriorly axillary line." The internal damage mentioned in the post mortem report is laceration of the left lung and rupture of right anterim of heart. The cause of death noted in the post-mortem report is cardio-respiratory failure due to hypovolumic shock due to internal bleeding due to rupture of heart and lung. In his statement in the trial Court, Dr. Gomsale stated that the external and internal injuries suffered by the deceased could be caused by inflicting blows with kicks and fists and internal damage suffered by the deceased, was sufficient in the ordinary course of nature to cause death. 6. After submission of the charge-sheet, the case was committed to the Court of Sessions where the appellant was charged for the offence punishable under section 302, Indian Penal Code to which, he pleaded not guilty and claimed to be tried. During trial, the prosecution examined four witnesses. Two of them namely Vimal P.W. 1 and Bhiva P.W. 3, the daughter and brother-in-law of the appellant respectively, were examined as eye-witnesses. The defence of the appellant was denial but, he examined no witness to substantiate it. During trial, the prosecution examined four witnesses. Two of them namely Vimal P.W. 1 and Bhiva P.W. 3, the daughter and brother-in-law of the appellant respectively, were examined as eye-witnesses. The defence of the appellant was denial but, he examined no witness to substantiate it. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated in para 1 above. Hence, this appeal. 7. We have heard learned Counsel for the parties and perused the entire material on record. After the gravest circumspection, we are of the view that this appeal deserves to be partly allowed. But, before we propose giving our reasons for reaching the said conclusion, we would like to point out that Ms. Aruna Kamath learned appointed Advocate for the appellant expressed her reluctance to argue this appeal because, subsequent to her appointment as an Advocate for the appellant, she has been appointed as Additional Public Prosecutor by the State of Maharashtra. Consequently, she prayed that the appeal be adjourned and some after other Advocate be appointed in her place. Since the appellant is in jail since 20-6-1995, we turned down her request and asked her to assist us. 8. So far as the involvement of the appellant in the incident is concerned, we are squarely satisfied that it has been established to the hilt through the credible ocular account rendered by Vimal P.W. 1 and Bhiva P.W. 3, the daughter and brother-in-law of the appellant respectively. Evidence of both these witnesses is that they lived in immediate proximity of the appellant. On the date and time of the incident, they reached the house of the appellant and found that he was inflicting blows with kicks and fists on the person of his wife Laxmibai. When Vimal tried to intervene, he slapped her. Evidence of Bhiva further is that the appellant pulled the hair of Laxmibai and felled her on the ground and also took out a brick from the oven and assaulted Laxmibai with the same on her chest. His evidence further is that the appellant inflicted fist blows on Laxmibai's chest. After the appellant had ceased assaulting Laxmibai, Vimal Bhiva went away. 9. We have examined the ocular account furnished by Vimal and Bhiva and we find that it inspires confidence. His evidence further is that the appellant inflicted fist blows on Laxmibai's chest. After the appellant had ceased assaulting Laxmibai, Vimal Bhiva went away. 9. We have examined the ocular account furnished by Vimal and Bhiva and we find that it inspires confidence. The manner of assault as disclosed by them is corroborated by the external and internal injuries found on the person of Laxmibai by the Autopsy Surgeon Dr. Gomsale P.W. 2. We have earlier set out those injuries. Dr. Gomsale in his statement in the trial court categorically stated that they could be caused by blows with kicks and fists. It should also be borne in mind that both these witnesses are natural witnesses of the incident inasmuch as they lived in immediate proximity of the place of the incident. It should also be borne in mind that since Vimal was the daughter of the appellant and Bhiva his brother-in-law, they would not have falsely implicated him unless he had assaulted the deceased Laxmibai in the manner stated by them. 10. In our view, the learned trial Judge was absolutely justified in concluding that the appellant had assaulted the deceased Laxmibai in the manner alleged by the two eye-witnesses. 11. This leave us with only one question namely that of offence. The learned trial Judge has convicted the appellant for the offence under section 302, Indian Penal Code. In our view, he erred in convicting him on that count and instead should have convicted him under section 304 Part II, Indian Penal Code. The evidence of Bhiva shows that both the appellant and Laxmibai were drunk and were quarrelling. In such a situation, the appellant inflicted blows with kicks and fists on her person. Thereafter, he inflicted fist blows on her chest and took out a brick from the oven and assaulted Laxmibai on her chest with it. It is pertinent to point out that Vimal in her statement has made no mention about the appellant assaulting Laxmibai with a brick on her chest. It is true that the Autopsy Surgeon has stated that the internal injuries of the deceased were sufficient in the ordinary course of nature to cause death but, in the factual matrix in which they were caused, it cannot be said that the appellant intended inflicting those internal injuries. It is true that the Autopsy Surgeon has stated that the internal injuries of the deceased were sufficient in the ordinary course of nature to cause death but, in the factual matrix in which they were caused, it cannot be said that the appellant intended inflicting those internal injuries. It is well-settled that for the application of clause thirdly of section 300, Indian Penal Code, there should be an intention to inflict injuries which are sufficient in the ordinary course of nature to cause death. In our view, in the present case, this intention is wanting. We are fortified in our view by the decision of the Supreme Court reported in (Kulwant Rai v. State of Punjab)1, A.I.R. 1982 Supreme Court page 126. In that case, without any premeditation and after a short quarrel, the appellant inflicted one blow with a dagger in the epigastrium region and the deceased succumbed to the resultant injury. He was convicted under section 302, Indian Penal Code. He filed an appeal in the Supreme Court. What appears is that before the Supreme Court, it was urged that since 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. The Supreme Court considering the circumstances in which the incident took place, held that it could not be said that the accused intended to inflict the particular injury which was found to be inflicted and therefore, took the view that Clause thirdly of section 300, Indian Penal Code would have no application. Hence it altered the conviction to 304 Part II, Indian Penal Code. We feel that when the appellant assaulted the deceased in the manner given out by the two eye-witnesses, he had the knowledge of her death in terms of Clause thirdly of section 299, Indian Penal Code the breach of which is punishable under section 304 Part II, Indian Penal Code. 12. The only question which remains is the quantum of sentence to be awarded to the appellant for the offence under section 304 Part II, Indian Penal Code. In our view, the ends of justice would be satisfied if he is sentenced to undergo 5 years R.I. thereunder. 13. In the result, this appeal is partly allowed. 12. The only question which remains is the quantum of sentence to be awarded to the appellant for the offence under section 304 Part II, Indian Penal Code. In our view, the ends of justice would be satisfied if he is sentenced to undergo 5 years R.I. thereunder. 13. In the result, this appeal is partly allowed. Although we acquit the appellant for the offence under section 302, Indian Penal Code and set aside his conviction and sentence of imprisonment for life and fine of Rs. 1000/- and the sentence in default of payment of fine thereunder but, we find the appellant guilty under section 304 Part II, Indian Penal Code and sentence him to undergo 5 years R.I. The appellant is in jail and shall serve out his sentence. In case he has deposited the fine, it shall stand refunded to him. Appeal partly allowed. -----