JUDGMENT - V.M. KANADE, J.:---The appellant is challenging the judgment and order passed by the 5th Additional Sessions Judge, Nagpur dated 10-6-1996 whereby the Sessions Court has convicted the appellant under section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/-. 2. This is an unfortunate case where one Madhukar Ramteke was assaulted by the appellant on account of the evidence which he and his wife had given against certain persons, who were accused of having committed the murder of one Prithviraj Nagrare. On account of the said action of Madhukar Ramteke, the accused Ishwar @ Toni on the instigation of the said persons, namely, Gajanan Bramhane, Harshad Brahmane, Pramod Brahmane, Shilon Telutumbde and one Hajare went near the residence of Madhukar Ramteke. It is the case of the prosecution that the accused went near a pan-stall and started abusing Madhukar Ramteke. At that point of time, Madhukar Ramteke and his wife Vimal were sitting in the verandah of their house. As a result of the said abuses, there was a quarrel between accused and Madhukar Ramteke which was separated by Vimal, wife of Madhukar. However, soon thereafter the accused went inside the house of one Kamble and came out with a gupti and straightaway stabbed Madhukar Ramteke on the left side of the chest, as a result of which Madhukar fell down. Thereafter Vimal went to bring a rickshaw and one Gourkha Kamble lifted Madhukar and took him to the hospital in a rickshaw. However, by the time the doctor examined him, he was declared dead. The F.I.R. was lodged by Vimal which is at Exhibit 24. Thereafter the Investigating Officer recorded the statements of witnesses and the gupti was recovered at the instance of the accused. The inquest and spot panchanama was made and the dead body was sent for post-mortem on 9-4-1993. In the post-mortem the following external injuries were noticed by the doctor in Column No. 17:--- "(1) Stab wound left side chest 4th intercostal space 2½" medial to nipple and ¼" lateral to midline size ½" x ¼" cavity deep. Both margins and angles contused directed medially downwards and posteriorly. Fresh. Size ½" x ¼" X-cavity deep both margins angles contused directed medially downwards and posteriorly. Both margins and angles contused directed medially downwards and posteriorly. Fresh. Size ½" x ¼" X-cavity deep both margins angles contused directed medially downwards and posteriorly. Fresh." Similarly, the following internal injuries were also noticed in Column No. 20:- "Thorax--- (a) Walls, ribs, cartilages- Intact ribs cartilage cut underneath injury No. (1) of Column (17) of size ½" Haematoma present. (b) Pleura-N.A.D., Haematoma present both side about 1000 ml. of blood present and clots present. (c) Larynx, Trachea and Bronchi-N.A.D. (d) Right lung) (e) Left Lung )-Pale. Both side collapsed. (f) Pericardium-Stab present on (Lt) side of size. (g) Heart with weight-½" through through. (h) Large vessels-Haemopericardium present about 80-100 ml. blood clots present. (i) Additional remarks-Stab present on (Lt) ventricles 1" above apex size ½" clear cut through through. Haematoma present corresponds with injury No. (1) of Column No. (17) of P.M. report." The doctor has given his opinion about the cause of death as due to shock and haemorrhage due to injury to vital organ. 3. The accused was charged under section 302 of the Indian Penal Code for having caused the death of Madhukar Ramteke by means of a gupti and the accused pleaded 'not guilty' to the said charge. Subsequently, the prosecution examined 9 witnesses, out of which P.W. 1 Vimal-wife of Madhukar Ramteke and P.W. 2-Satyabhama Domaji are the two eye witnesses who were examined. The prosecution has further examined P.W. 3-Yeshwant, who is the autorickshaw driver in whose rickshaw the deceased was taken from the spot of the incident to the hospital. P.W. 4 is another eye-witness Surendra Kamble, who was declared as hostile by the prosecution. P.W. 5 P.W. 6 were examined as panchas, who had drawn the panchanama regarding the recovery of the Gupti from the accused. However, both these witnesses have turned hostile. The prosecution has examined P.W. 9-Dr. Tank as he is the person who conducted the post-mortem and who has given his opinion that the gupti which was recovered at the instance of the accused was sufficient in the ordinary course of nature to cause the injuries which were sustained by the deceased Madhukar. P.W. 9 has also given his opinion that the death is homicidal which fact has not been disputed by the accused. P.W. 9 has also given his opinion that the death is homicidal which fact has not been disputed by the accused. The prosecution has further examined two Investigating Officers, namely, P.W. 7-Jagdishprasad Tiwari, who is the officer who has recorded the first information report at Exhibit 24 and P.W. 8-Yadnyaprasad Tiwari, who has recorded the memorandum as also the statements of other witnesses and has conducted the investigation. 4. The trial Court convicted the accused under section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and also directed that he should pay a fine of Rs. 500/-. 5. The appellant is challenging the said judgment and order by way of appeal in this Court. 6. Shri M.R. Daga, the learned Counsel for the appellant, has submitted that though the death is admittedly homicidal, yet the prosecution has not been in a position to prove the genesis of the offence. He submitted that P.W. 4-Suresh Kamble though he was declared as hostile, the contradictions which have been proved in his cross-examination clearly establish that there was a scuffle between Madhukar and the accused and that the said Surendra Kamble P.W. 4 had tried to pacify both these persons and that the deceased was carrying a knife and was trying to assault the accused. Shri Daga, the learned Counsel for the appellant, further submitted that the presence of the accused at the scene of the offence is admitted and is not denied. However, he submitted that it was the specific case of the appellant that the deceased had rushed towards the accused with a knife and that during the scuffle that ensued, the appellant had grabbed the knife of the deceased and possibly the said injury was caused to the deceased on account of the quarrel which took place. He submitted that there was no intention on the part of the accused to commit the murder of the deceased. He submitted that in the F.I.R. which was recorded by the police at Exhibit 24 Vimal, wife of the deceased has stated that there was an altercation between Madhukar and the accused and that the accused suddenly took out a knife and gave a blow on the chest of the deceased. He submitted that in the F.I.R. which was recorded by the police at Exhibit 24 Vimal, wife of the deceased has stated that there was an altercation between Madhukar and the accused and that the accused suddenly took out a knife and gave a blow on the chest of the deceased. However, Smt. Vimal P.W. 1 in her deposition had made an improvement in her story and had submitted that the accused after the initial quarrel was over suddenly went into the house of one Kamble and thereafter brought a Gupti and gave a blow on the chest of the deceased. He submitted that the said contradiction had been proved, which clearly established that the story of P.W. 1-Vimal was not consistent. He submitted that the deceased had suffered only one injury which was only ½" X ¼" in width and that the said injury was also not on the chest but on the side of the chest and, therefore, he submitted that it cannot be said that there was an intention to cause death of the deceased. He submitted that at the highest even if the prosecution story is accepted, the case would fall under section 304 Part II of the Indian Penal Code. 7. Shri D.B. Patel, the learned Public Prosecutor appearing on behalf of the State, vehemently opposed the said submissions made by the Counsel for the appellant. He submitted that this was a case where the deceased was murdered in cold blood because he had deposed against certain persons who were accused of having committed a murder and in the said sessions trial, the deceased and his wife had given evidence against those accused. He submitted that the appellant was acting on behalf of those accused who wanted to take revenge against the deceased Madhukar for having given evidence against him. He submitted that though a single blow was given by the accused, the said blow was sufficient in the ordinary course of nature to cause death and, therefore, the case of the accused was squarely covered under the provisions of section 300 and he was liable to be punished under section 302 of the Indian Penal Code. He submitted that the eye-witness account of P.W. 1-Vimal was corroborated by P.W. 2 her mother Satyabhama, who had also given a correct account of the entire episode. He submitted that the eye-witness account of P.W. 1-Vimal was corroborated by P.W. 2 her mother Satyabhama, who had also given a correct account of the entire episode. He submitted that under these circumstances, the order passed by the Sessions Court should be confirmed. 8. We have heard the learned Counsel appearing on behalf of the appellant and the learned Additional Public Prosecutor appearing on behalf of the State. We have also perused the judgment and order passed by the Sessions Court. We have perused the post-mortem notes as also the other documentary evidence adduced by the prosecution. It is an admitted position that the death of the deceased was a homicidal death. It is further an admitted position that the accused was present at the scene of the offence and that an altercation had taken place between the accused and the deceased. It is further an admitted position that the deceased and his wife Vimal had given evidence against Gajanan, Harshad, Pramod Bramhane, one Teltumbde and Hajare in the case of murder of one Prithviraj Nagrare. The evidence of P.W. 1 is very clear and cogent and her evidence given by her in the Court is further corroborated by the first information report given by her to the police which is at Exhibit 24. Except for the contradiction pertaining to the weapon which was acquired by the accused, rest of the statement is consistent. Her evidence has been fully corroborated by the evidence of P.W. 2-Satyabhama. The post mortem report is also admitted and Dr. Tank has given a total account regarding the external and internal injuries and he has opined that the said injury could be caused by the gupti which was recovered at the instance of the accused. Though it is true that the recovery of the gupti at the instance of the accused has not been proved by the prosecution on account of the panch witnesses turning hostile before the Court, even otherwise the said gupti has been identified by P.W. 1 in the Court as being the same weapon which was used by the accused on the said day of the incident. The evidence of Dr. The evidence of Dr. Tank P.W. 9 further establishes that though apparently the size of the external injury is ½" X ¼" X-cavity deep, yet the internal injury which is caused because of the said stab wound has caused extensive damage to the internal vital organs of the deceased as a result of which the deceased died due to shock and haemorrhage caused to the vital organs. 9. It is, therefore, proved beyond doubt by the prosecution that the said injury was caused by the accused/appellant and he alone was responsible for having caused the said injury. 10. The question, however, remains as to whether the accused had intention of committing murder of the deceased Madhukar or whether the said injury was caused without intention or knowledge on the part of accused. From the evidence of record, it is clear that the prosecution has failed to prove the genesis of the said offence and, therefore, it is not certain as to how the said incident had taken place and as to who was the real aggressor in the said quarrel. It is very clear from the evidence of P.W. 1 that she has made a very vital improvement in her deposition regarding the procurement of the weapon by the accused from the house of P.W. 4 Kamble. On account of the said version, she has attempted to make out a case of a premeditated mind on the part of the accused. She has deposed that initially the accused abused deceased Madhukar and further threatened him and thereafter there was a quarrel between Madhukar and accused. However, this quarrel according to her was over on her intervention. She states, however, that subsequently immediately after the quarrel was over, the accused went into the house of P.W. 4 Kamble, came out with a gupti and gave one blow on the chest of the deceased Madhukar and after having received the blow, Madhukar fell down and thereafter died before he was admitted in the hospital. This story regarding the procurement of the weapon from the house of P.W. 4 Kamble obviously appears to be an improvement, especially in view of the fact that P.W. 1 Vimal has not mentioned about the procurement of the weapon by the accused in the first information report. In the first information report, she has mentioned that the accused was carrying the Gupti along with him. In the first information report, she has mentioned that the accused was carrying the Gupti along with him. Therefore, we are of the view that the case of the prosecution that the accused had come with an intention of committing the murder of deceased Madhukar does not appear to be true and, therefore, the said intention to commit the murder is not proved by the prosecution. 11. The next question which falls for our consideration is as to whether the accused had knowledge that the said injury which he had caused was sufficient in the ordinary course of nature to cause death. It is obvious from the medical evidence that the said injury has in fact caused the death of deceased Madhukar. However, from the evidence brought on record by the prosecution, it does not appear to be a case where the accused had knowledge that the injury which he is causing is sufficient in the ordinary course of nature to cause the death, firstly because the said injury was inflicted not directly on the chest but on the left side of the chest. Secondly, the said stab wound appears to have been given in a scuffle and thirdly, on account of the absence of evidence regarding the genesis of the entire incident, it cannot be said that the accused had such a knowledge. However, the accused clearly had knowledge that such an injury is likely to cause death. The evidence given by the doctor clearly establishes that though the external injury is only of ½" X ¼", criminal appeal is partly allowed", yet the internal damage that is caused was substantial and, therefore, it will have to be held that the accused had caused such bodily injury which was likely to cause death. In this view of the matter, we are of the view that the case of the accused would squarely fall under the provisions of section 304 Part I of the Indian Penal Code and not under section 302 of the Indian Penal Code. 12. In the result, the conviction and sentence of life imprisonment awarded to the appellant under section 302 of Indian Penal Code are set aside. Instead, the appellant/accused is convicted under section 304 Part I of the Indian Penal Code and is sentenced to undergo seven years of rigorous imprisonment. 12. In the result, the conviction and sentence of life imprisonment awarded to the appellant under section 302 of Indian Penal Code are set aside. Instead, the appellant/accused is convicted under section 304 Part I of the Indian Penal Code and is sentenced to undergo seven years of rigorous imprisonment. The conviction of the appellant/accused is, therefore, altered from section 302 to section 304 Part I of the Indian Penal Code. The accused is to be released from jail on the completion of seven years of rigorous imprisonment and in the event he has already undergone the period of seven years of sentence, he should be released forthwith from jail unless required for any other offence. The sentence of the Sessions Court in respect of fine is, however, maintained. The criminal appeal is partly allowed in the above terms. Criminal Appeal partly allowed. -----