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2005 DIGILAW 1572 (BOM)

State of Maharashtra v. Sudhakar Mahadeo Gawali

2005-11-21

A.P.LAVANDE, D.S.ZOTING

body2005
D. S. ZOTING, J. :- This is an appeal preferred by the State of Maharashtra against the judgment and order dated 12-7-1990 passed by the Sessions Judge, Chandrapur in Sessions Case No.18 of 1990. By the said judgment and order, the accused has been acquitted of the offence charged under Section 302 of the Indian Penal Code. He has been convicted for an offence punishable under Section 304, Part-II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for four years. He has been further convicted for offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for four years. He has been further convicted for offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year. Both the sentences were directed to run concurrently. Thus, the appeal is filed under Section 378 Cr.P.C. against the order of acquittal of the accused for an offence charged under Section 302 of the Indian Penal Code. 2. The murdered man was one Gangadhar Tanba Choukhe, aged about 32years. He was resident of village Adegaon. He was residing with his wife Tulja (PW 2) and mother Baljabai. The incident occurred at the / square. There was a lamp-post near the square. The house of the deceased is situated at a distance of about 100 feet from the said square. Villagers used to come to the square after taking their meals for chit-chatting. There is a pan shop at the square. The house of accused is also situated near the square. These are the facts which are not in dispute. 3. The prosecution case, in brief, is that on the fateful day i.e. On 24-9-1989, deceased Gangadhar took meals and he went to the square. There was altercation between the deceased and Mahadeo the father of accused over the road passing through the boundaries of their field. Gangadhar was saying that there was no road existing through the boundary whereas Mahadeo was insisting upon such road. The accused arrived there and asked them to keep quiet. On hearing the commotion, the wife and mother of deceased came to the spot and they requested Gangadhar to go to the house, but Gangadhar did not pay any heed to their request. The accused went back to his house and again arrived on spot. The accused arrived there and asked them to keep quiet. On hearing the commotion, the wife and mother of deceased came to the spot and they requested Gangadhar to go to the house, but Gangadhar did not pay any heed to their request. The accused went back to his house and again arrived on spot. He gave a blow of dagger on the left side of the chest of deceased Gangadhar as a result of which the deceased sustained bleeding injury. He fell down and died on the spot instantaneously. P.W.1 Daulat and PW 2 Tulja tried to obstruct the accused and in that event they received the injuries. Daulat (PW 4) is Police Patil. On hearing commotion from his house, he started proceeding towards the square. Gangadhar's wife and mother met him on the way and they were crying and they told him that the accused murdered Gangadhar. He proceeded to the spot and he saw Gangadhar lying dead in a pool of blood. He went to the house of accused and asked him to produce the dagger (Barchi). The accused produced the dagger which was found stained with blood. It was attached by the Police Patil in presence of panchas and he prepared occurrence report (exhibit 11) and sent the same through Arun Chaudhari to the Police Station. On the basis of the said report, offence came to be registered against the accused under Section 302 of the Indian Penal Code. PSI Sharma (PW 12) registered the said offence vide crime no.87/89 under section 302 of the Indian Penal Code. He visited the spot and drew panchanama of scene of offence in presence of panchas. The panchanama is at exhibit 13. He held inquest on the dead body of deceased Gangadhar and drew panchanama (exhibit 14). He sent the dead body of Gangadhar for post-mortem examination and attached the dagger produced by Police Patil and it was seized under seizure panchanama (exhibit 12). He seized the clothes of the accused under seizure panchanama (exhibit 18). His Baniyan was found stained with blood. As PW 1 Daulat and PW 2 Tulja had bleeding injuries, he sent them for medical examination. Accused was also referred to the Medical Officer for collecting sample of his blood. Accused was arrested on 26-9-1989. The articles seized during investigation were sent to the Chemical Analyser. His Baniyan was found stained with blood. As PW 1 Daulat and PW 2 Tulja had bleeding injuries, he sent them for medical examination. Accused was also referred to the Medical Officer for collecting sample of his blood. Accused was arrested on 26-9-1989. The articles seized during investigation were sent to the Chemical Analyser. After completion of investigation, the accused was charge-sheeted for the aforesaid offences in the Court of Judicial Magistrate, First Class, Warora. 4. The offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions. Therefore, the learned Magistrate committed the case to the Court of Sessions for trial according to law. 5. Charge under Sections 302 and 324 of the Indian Penal Code was framed. It was read over and explained to the accused to which accused pleaded not guilty and claimed to be tried. His defence is two-fold. Firstly, that he has not committed any offence muchless the murder of deceased Gangadhar. Secondly, he raised the plea that he tried to avoid the blow of dagger to be given by deceased Gangadhar to his father Mahadeo and in that process he caught hold of hand of Gangadhar and twisted the same and kicked him as a result of which Gangadhar fell down striking his own-dagger to his chest and thereby bleeding injury was caused to Gangadhar. 6. During trial as many as twelve witnesses have been examined by the prosecution. The accused and his father have also entered into witness box and gave evidence as defence witnesses. Upon hearing both the parties and after going through the entire evidence on record, especially the ocular evidence given by Daulat (PW 1), Tulja (PW 2) and Dayaram (PW 3), the Trial Court found that the accused is the author of the injury on the person of deceased Gangadhar. However, taking into consideration the facts and circumstances, the Trial Judge came to the conclusion that the accused could not be said, to have committed murder of deceased Gangadhar. It is further held that the act of the accused amounts to culpable homicide not amounting to murder, punishable under Section 304, Part-II of the Indian Penal Code. The accused is also held guilty for offence under Section 324 of .the Indian Penal Code for voluntarily causing hurt to Daulat (PW 1) and Tulja (PW 2) with the dagger. It is further held that the act of the accused amounts to culpable homicide not amounting to murder, punishable under Section 304, Part-II of the Indian Penal Code. The accused is also held guilty for offence under Section 324 of .the Indian Penal Code for voluntarily causing hurt to Daulat (PW 1) and Tulja (PW 2) with the dagger. In view of the finding recorded by the learned Trial Judge, he acquitted the accused for offence charged under section 302 of the Indian Penal Code. However, he convicted the accused for offence punishable under Section 304, Part-II and Section 324 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for four years for the offence under Section 304, Part-II IPC and sentenced him to suffer rigorous imprisonment for one year for the offence under Section 324, IPC. 7. The State has no grievance as regards the conviction and sentence passed by the Trial Court under section 324 of the Indian Penal Code against the accused for having voluntarily caused hurt to Daulat (PW I) and Tulja (PW 2). However, it has grievance against acquittal of the accused for an offence punishable under Section 302 of the Indian Penal Code and passing conviction and sentence for offence under Section 304, Part-II of the Indian Penal Code instead of Section 302 of the Indian Penal Code and, therefore, the State has challenged the said judgment and order before this Court. 8. We have heard the arguments advanced by Mr. T. A. Mirza, the learned Additional Public Prosecutor appearing on behalf of the appellant State of Maharashtra (hereinafter referred to as the "State") and Mr. Vishal Umre, the learned counsel appearing for the respondent (hereinafter referred to as the "accused"). Mr. Vishal Umre has been appointed under the Legal Aid Scheme to defend the accused. 9. Mr. T. A. Mirza, the learned APP submits that the learned Trial Judge erred in law as well as on facts of the case in convicting the accused under Section 304, Part-II of the Indian Penal Code instead of Section 302, IPC. He submits that the prosecution has been able to establish that initially there was a quarrel between deceased Gangadhar and Mahadeo, the father of accused over the wad passing through the boundaries of their field. At that time, the accused came and asked them to keep quiet. He submits that the prosecution has been able to establish that initially there was a quarrel between deceased Gangadhar and Mahadeo, the father of accused over the wad passing through the boundaries of their field. At that time, the accused came and asked them to keep quiet. Thereafter he went to his house to bring dagger. It is submitted that the Trial Court has failed to see that the accused went home and brought the deadly weapon and thereafter he gave a blow on the chest of deceased which is a vital part of the body and the blow of dagger was given on the left side of the chest with such a force as to cause 6" deep injury causing fracture of 4th thoracic left rib and cutting the lung and heart, thereby causing death of deceased Gangadhar instantaneously. He submits that the act of the accused falls under clause "fourthly" of Section 300 of the Indian Penal Code, punishable under Section 302 of IPC. The learned APP has cited the following cases in support of his contention: — 1. Mahesh Balmiki @ Munna Vs. State of Madhya Pradesh, ( AIR 1999 SC 3338 : 1999 ALL MR (Cri) 1796 (S.C.). 2. Thangaiya Vs. State of Tamil Nadu, (2005 AIR SCW 76 : 2005 ALL MR (Cri) 805 (S.C.). 10. Per contra, Mr. Vishal Umre, the learned counsel for accused has fully supported the reasoning given by the Trial Court acquitting the accused for offence punishable under Section 302 of the Indian Penal Code and convicting him for offence under Section 304, Part-II of the Indian Penal Code. He submits that the incident had taken place on the spur of moment and there was no intention or plan to kill the deceased. He submits that only one blow of dagger was given. Under such circumstances, the accused could not be attributed to the intention to kill deceased Gangadhar and, therefore, there is no merit in the appeal preferred by the State against the order of acquittal of accused under Section 302 of the Indian Penal Code. The learned counsel for the accused has relied upon the following decisions:- 1. Jagtar Singh Vs. State of Punjab, AIR 1983 SC 463 . 2. State of Orissa Vs. Bata @ Khandi Sethi, 1990 Cri.L.J. 1087. 11. The learned counsel for the accused has relied upon the following decisions:- 1. Jagtar Singh Vs. State of Punjab, AIR 1983 SC 463 . 2. State of Orissa Vs. Bata @ Khandi Sethi, 1990 Cri.L.J. 1087. 11. In view of the submissions advanced by both the parties, the only question that arises for consideration is, whether on the facts and circumstances proved by the prosecution, the accused could be said to have committed murder of deceased Gangadhar. Our finding is in the affirmative for the following reasons. 12. The fact that deceased Gangadhar died unnatural death at the square of village Adegaon on 24-9-1989 at about 09-09.30 pm on account of the injuries sustained by him has not come to be disputed in any manner by or on behalf of the accused. 13. As regards the actual occurrence, Daulat (PW 1) gave evidence that after taking meals he went to the square. At that time, there was altercation between deceased Gangadhar and father of accused over the road passing through the boundaries of their field. He stated that the accused Sudhakar arrived there and asked them to keep quiet and Tulja (PW 2) and Baljabai told Gangadhar to go to his house, but he did not go. He further stated that accused went to his house and again arrived on the spot and he gave a blow of dagger on the chest of deceased as a result of which the deceased received a bleeding injury and he fell down and died on the spot. He stated that he tried to obstruct the accused and in the event, the accused gave a jerk with dagger as a result of which he received cut injuries to his two fingers of left hand. His evidence is fully corroborated by Tulja (PW 2) and Dayaram (PW 3). Tulja (PW 2) whose house is at a distance of 200 feet from the square, stated that on hearing the noise, she went to the square where she noticed altercation between Gangadhar and Mahadeo about the boundary route. Accused came there and talked to them. She has also stated that thereafter the accused went home and after a while he came to the spot again and gave a blow of dagger on the chest of deceased. She also received injury on the thumb with the said dagger in a process to obstruct the accused. Accused came there and talked to them. She has also stated that thereafter the accused went home and after a while he came to the spot again and gave a blow of dagger on the chest of deceased. She also received injury on the thumb with the said dagger in a process to obstruct the accused. The evidence of these two witnesses about the injuries on their finger finds corroboration in the medical evidence given by Dr. Rathod (PW 11) who opined that the injuries were possible with dagger (Article No.6). 14. Dayaram (PW 3) is a witness who had also witnessed the occurrence. He has also narrated the same story. Dattu (PW 4) is the' Police Patil who, on hearing the commotion, was going towards the square and on the way Tulja and Baljabai met him and told him that the accused murdered Gangadhar. Hence, he came to the spot and saw the deceased Gangadhar lying dead in a pool of blood. As the accused was not found, he went to his house and asked the accused to produce weapon and the accused produced the dagger which was found on the dagger as well as on the clothes of the accused seized by police. Thus, there is ample evidence to show that the accused is responsible for the homicidal death of deceased Gangadhar. The Trial Court has thus rightly found the accused responsible for the said homicidal death. It is to be noted that the Trial Court has rejected the defence version put forwards by the accused. However, the learned Trial Judge held that the act of the accused amounts to culpable homicide not amounting to murder and the accused has been convicted and sentenced for offence under Section 304, Part-II of the Indian Penal Code. The accused has not preferred appeal against the conviction and sentence passed by the trial Court. Therefore, it is not open for the accused to reopen the prosecution case for re-appreciation of the evidence on record. 15. It is also to be noted that Dr. Khanapure (PW 8) who conducted post-mortem examination on the dead body of deceased Gangadhar in his cross-examination stated that the injury received by Gangadhar is not possible if a person with dagger in his hand fell on the ground due to kick given by some other person after twisting the hand of the holder of dagger. Khanapure (PW 8) who conducted post-mortem examination on the dead body of deceased Gangadhar in his cross-examination stated that the injury received by Gangadhar is not possible if a person with dagger in his hand fell on the ground due to kick given by some other person after twisting the hand of the holder of dagger. He categorically stated that in that event, the injury could not be much deeper. Thus, the medical evidence negatives the defence version put forward by the accused and his defence was rightly rejected by the Trial Court. This brings us to the nature of injuries sustained by deceased Gangadhar. Dr. Khanapure (PW 8) deposed that he noticed following injuries on the person of deceased : "(i) Stab injury on left side of chest at the level of left nipple above in between left 4th and 5th rib, size depth 6", length 2" breadth ½” cm. (ii) fracture of the 4th thoracic left rib totally separated from costo sternum junction." On internal examination, he found the following Injuries : "(i) punctured wound of left lower lobe of left hung, size 1", breadth ½” cm., length 2". (ii) piercing injury of heart and left ventrical extended from anterior and posterior surface wall, size of inlet injury length 2" breadth ½” cm. depth 2" outlet injury length 2" breadth ½” cm depth 2" outlet injury length 2" breadth 1 cm." He opined that the above injuries were antemortem and cause of death is cardio-respiratory arrest due to injury of heart and left lung. He has opined that the injuries on the person of deceased Gangadhar were sufficient in ordinary course of nature to cause death. Thus, the medical evidence reveals that though single blow was given on the chest of the deceased, deceased sustained fracture of 4th thoracic left rib which was totally separated from costo sternum junction and the stab injury was 6" in depth and 2" in length. Due to the said injury, lung and heart were cut, as already pointed out. 16. It is also to be noted that the dagger used for causing the said injury was produced before the Trial Court. The description of the dagger is given in the seizure panchanama (exhibit 12). Its length is 8" and width is 1-1/2". The weapon has a sharp blade on both sides and the length of handle is 4-1/2". 16. It is also to be noted that the dagger used for causing the said injury was produced before the Trial Court. The description of the dagger is given in the seizure panchanama (exhibit 12). Its length is 8" and width is 1-1/2". The weapon has a sharp blade on both sides and the length of handle is 4-1/2". Thus the total length of the dagger is about 1 foot. The nature of weapon used by accused and the nature of injury caused by him and circumstances in which the said injury is caused are the factors to be looked into in, order to ascertain the nature of offence committed by the accused. 17. In Mahesh Balmiki Vs. State of M.P. [1999 ALL MR (Cri) 1796 (S.C.)] (cited supra) the Supreme Court has held as under : "There is no principle that in all cases of single blow S.302, I.P.C. is not attracted. Single blow may, in some cases, entail conviction under S.302, I.P.C.; in some cases under S.304, I.P.C. and in some cases under S.326, I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury in inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him." 18. Now, it is to be seen whether the facts proved constitute an offence of murder, as contended by the learned APP for the State or the culpable homicide not amounting to murder, as contended by learned counsel for the accused. 19. The Supreme Court had an occasion to consider the distinction between murder and culpable homicide in several cases and in this regard it would be just and proper to refer to few paragraphs of the decision of the Apex Court in Thangaiya Vs. State of Tamil Nadu [2005 ALL MR (Cri) 805 (S.C.)] (supra), as under : "9. This brings us to the crucial question as to which was the appropriate provisions to be applied. In the scheme of the IPC culpable homicide is genus and "murder" its specie. All 'murder' is 'culpable homicide' but not vice versa. State of Tamil Nadu [2005 ALL MR (Cri) 805 (S.C.)] (supra), as under : "9. This brings us to the crucial question as to which was the appropriate provisions to be applied. In the scheme of the IPC culpable homicide is genus and "murder" its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder of culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is what may be called, 'culpable homicide of the first degree'. This is the graviest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest amount the punishment provided for the three grades. Culpable homicide of this degree is punishable under the second part of section 304. 10. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Court losing sight of the true scope and meaning of the terms used by the Legislature in these sections allow themselves to be drawn into minute abstractions. The safest way of approach to interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in comparative table will be helpful in appreciating the points of distinction between the two offences. Section. The safest way of approach to interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in comparative table will be helpful in appreciating the points of distinction between the two offences. Section. 299 Section 300A person commits Subject to certain culpable homicide if the exceptions culpable act by which the death is homicide is murder caused is done - if the act by which the death is caused is done- (b) with the intention of causing such bodily injury as is likely to cause death; or INTENTION (a) with the intention of (1) with the causing death; or intention of causing death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) with the knowledge (4) with the that the act is likely to knowledge that cause death, the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is furnished above. 11. ...... 12.Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart; as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.....sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. 13. ...... 14. In Virsa Singh Vs. State of Punjab, ( AIR 1958 SC 465 ), Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it and bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly that nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 15........ 16........ 17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. 18. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration @ appended to Section 300 clearly brings out this point." 19. Keeping the aforesaid legal principle in view, the factual position is to be examined. In the present case, there was altercation between father of the accused and deceased Gangadhar. It has come in evidence that the accused arrived there and he told them to keep quiet. He went home and arrived at the spot again and at once he gave a blow of dagger on the left side of the chest with such a force that the blow resulted in fracture of rib and the dagger entered into the chest upto 6" cutting the heart and lung thereby causing instantaneous death of the deceased. He went home and arrived at the spot again and at once he gave a blow of dagger on the left side of the chest with such a force that the blow resulted in fracture of rib and the dagger entered into the chest upto 6" cutting the heart and lung thereby causing instantaneous death of the deceased. It is to be noted that when there was altercation between deceased and the father of accused, the accused did nothing because it appears that he was not having dagger with him and, therefore, he went home and brought the dagger and dealt a blow directly on the chest of the deceased. From these circumstances, the accused could be attributed with intention 10 inflict that particular bodily injury which in ordinary course of nature was sufficient to cause death viz. that the injury found to be present on the person of deceased was the injury that was intended to be inflicted and the same cannot be said to be accidental or unintentional. Thus, the case proved against the accused clearly falls under clause "thirdly" of Section 300, punishable under Section 302 of the Indian Penal Code. 20. It is also to be noted that the Supreme Court in Mahesh Balmiki Vs. State of M.P. [1999 ALL MR (Cri) 1796 (S.C.)] (cited supra) while dealing with the identical situation and the theory of single blow causing injury having depth of 19 cm on the chest of left side causing fracture of the rib and internal damage to liver and the abdomen, held that the offence under Section 302 of the Indian Penal Code is made out by the prosecution. 22. It is to be noted that the Trial Judge has also referred to certain judgments while arriving at this conclusion holding the accused guilty for the offence under Section 304, Part-II instead of Section 302 of the Indian Penal Code. The learned Judge has referred to the decision in the case of State of Orissa Vs. Bata @ Khandi Sethi reported in 1990 Cri.L.J. 1087. The facts of the said case are different from the present case. In the said case, the accused exceeded right of self-defence and, therefore, he was held-Guilty for offence under Section 304, Part-I and not under Section 302 of the Indian Penal Code. Bata @ Khandi Sethi reported in 1990 Cri.L.J. 1087. The facts of the said case are different from the present case. In the said case, the accused exceeded right of self-defence and, therefore, he was held-Guilty for offence under Section 304, Part-I and not under Section 302 of the Indian Penal Code. The Trial Court erred in relying on the said decision which cannot be ·made applicable to the facts of the present case. The Trial Court has also referred to the decision of the Apex Court in the case of Jawahar La) & Anr. Vs. State of Punjab reported in AIR 1983 SC 284 in which the conviction was altered from Section 302 to Section 304, Part-II of the Indian Penal Code. In the ~aid case blow was given on chest and the said blow proved to be fatal. However, it is to be noted that the size of the stab wound was 4½ c.m. x 2½ c.m. on the front "of left side of chest. Taking into consideration the nature of injury in the present case, which is of very serious nature causing instantaneous death, the said case is not applicable to the facts of the present case. 23. The learned counsel for the accused has cited the decision of the Apex Court in Tholan Vs. State of Tamil Nadu reported in AIR 1984 SC 759 in which the conviction was altered from Section 302 to Section 304, Part-II of the Indian Penal Code. In the said case, weapon used by the accused was like knife. In the said case, accused started remonstrations using filthy language against certain organisers of a chit fund who had no connection with the deceased, in front of the house of deceased and the deceased came out of his house and asked the accused to go away. The accused on spur of moment gave only one blow with knife to the deceased which proved to be fatal. Under the circumstances, it was held that there was no intention on the part of the accused to commit murder. In the present case, the weapon used by the accused is very heavy i.e. Dagger and he went home and brought it and then dealt a blow. Thus, the facts being different, the case cited by the learned counsel for accused is not applicable to the present case. 24. In the present case, the weapon used by the accused is very heavy i.e. Dagger and he went home and brought it and then dealt a blow. Thus, the facts being different, the case cited by the learned counsel for accused is not applicable to the present case. 24. Thus, having considered the submission advanced by both the parties and going through the entire evidence on record, we find that the Trial Court has erred in applying the provisions of Section 304, Part-II of the Indian Penal Code. As already stated, there cannot be any doubt that the present case falls under clause "thirdly" of Section 300, punishable under Section 302 of the Indian Penal Code. 25. In the result, the appeal deserves to be allowed and it is accordingly allowed. The order of acquittal of the accused passed by the Trial Court for offence under Section 302 of the Indian Pena) Code and conviction under Section 304, Part-II of the Indian Penal Code is quashed and set aside. The accused is convicted and sentenced for offence under Section 302 of the Indian Penal Code to undergo rigorous imprisonment for life. The remaining part of the order is maintained. The bail bonds of the accused are cancelled. The accused to surrender before the Sessions Court. Chandrapur to serve out the sentence. The fees of Mr. Vishal Umre, Advocate who has been appointed under the Legal Aid Scheme to defend the accused are quantified at Rs.1500/-.