Judgment ( 1. ) THIS appeal is directed against the judgment of conviction dated 8-2-95 under Section 302 of Indian Penal Code and sentence of imprisonment for life in Sessions Trial No. 220/93, passed by Fourth Additional Sessions Judge, vidisha. ( 2. ) AS per prosecution story, Bhagwati (P. W. 8) is the wife of the appellant and daughter of deceased Chandrabhan. natra of the appellant took place with Bhagwati three-four months before the date of incident. After natra they lived together at Village Megra Amarpur and thereafter they shifted to village Kanpur Karod under Police Station, Salamatpur. On 31-8-93 appellant along with his wife Bhagwati came to see ailing deceased Chandrabhan, who was the father of Bhagwati and father-in-law of appellant and they stayed there in the night. Next day, i. e. , on 1-9-93, in the morning at about 9 oclock appellant told his father-in-law Chandrabhan that he wants to go back along with his wife bhagwati. Chandrabhan in reply told him that he is not feeling well, he should leave his daughter for two-three days and on recovery he himself will send his daughter to him. Appellant was not inclined to leave his wife Bhagwati and was insisting that he will take her back. The villagers also came to pursuade him. In the meantime his brother-in-law Ramesh also went towards the forest for grazing the goats and appellant also went in the village. After three-four hours in the noon appellant again came with a spear in his hand. At that time his wife bhagwati along with other ladies like Geeta wife of Ramesh, Tulsibai and bhariabai, who were neighbourers, were sitting under a tree. The appellant tried to assault his wife. She cried, called his father to come and save her. Appellant also asked her wife whether she wants to accompany him or not. In the meantime, father-in-law Chandrabhan came on spot and stopped the appellant killing his daughter, whereupon appellant asked his father-in-law Chandrabhan that "he be away otherwise he will kill him". When Chandrabhan remained there, the appellant gave one spear blow to him, who caused injuries in his chest and also towards the armpit. Chandrabhan fell down and started bleeding. He could not speak and succumbed to the injuries on the spot. When Chandrabhan remained there, the appellant gave one spear blow to him, who caused injuries in his chest and also towards the armpit. Chandrabhan fell down and started bleeding. He could not speak and succumbed to the injuries on the spot. When the appellant tried to flee away from the spot, Bhagwati gave one lathi blow in the head of appellant and two-three other blows on the other parts of his body. Bhagwati and Ramesh both went at Berkhedi Chouraha and gave information to Police station, Salamatpur about the incident, which was recorded in the Rojnamcha and thereafter police came on spot. dehati Nalishi was recorded. lash panchnama and spot map were prepared, the spear was removed from the body of the deceased and seized, plain and blood-stained soil was also seized. The body was referred for post-mortem and the matter was investigated. After investigation charge-sheet was filed. ( 3. ) AT the trial, prosecution examined as many as 11 witnesses and 5 witnesses were examined in defence. Appellant abjured his guilt and his defence was that when he was insisting for taking back his wife, his father-in-law, brother-in-law and other persons beat him. He became unconscious and he does not know how Chandrabhan died and who caused injuries to him. In short, the defence was that the appellant has not caused any injury to Chandrabhan and he has been implicated falsely. Trial Court found the appellant guilty of the offence under Section 300-Thirdly, IPC, convicted and sentenced him as aforesaid. Against which he has filed this appeal. ( 4. ) SHRI Padam Singh, learned Counsel for the appellant, at the outset submitted that it is a case of single injury and looking to the evidence on record the case will not fall under Section 300-Thirdly but it is a case of culpable homicide not amounting to murder and will fall under Section 304, Part II, as there was no intention on his part to kill his father-in-law. The appellant has already suffered jail sentence of around 12 years. He is in custody from the date of incident, therefore, he prayed that conviction be converted and the appellant be released on the basis of the undergone jail sentence. The appellant has already suffered jail sentence of around 12 years. He is in custody from the date of incident, therefore, he prayed that conviction be converted and the appellant be released on the basis of the undergone jail sentence. Shri C. S. Dixit, learned counsel for the respondent/state in reply supported the judgment and submitted that considering the injury and the instant death of the deceased on spot the case will fall under Section 300-Thirdly, IPC. ( 5. ) WE have considered the rival submissions of the learned Counsel for the parties and also considered the evidence and all other circumstances on record. ( 6. ) BHAGWATIBAI (P. W. 8) is the wife of the appellant, with whom three-four months before natra took place. She has stated that a day before the incident they both came to see her ailing father Chandrabhan. They stayed in the night but in the morning appellant insisted that they will go back. Her father asked him to leave his daughter for three-four days but the appellant was not prepared for this. Thereafter the appellant went in the village and again came there at about 11-12 oclock. He was carrying one spear with him. When she was sitting under a tree along with other ladies of the village, he tried to assault her. When she cried and called her father to come, his father came and asked the appellant, who is the son-in-law that "have you gone mad", then appellant told him that he should not come in the way, he be away otherwise he will kill him. When her father did not go away, the appellant gave spear blow in the left side of his chest. Her father fell down and immediately died. When appellant tried to run away from the spot, she gave one lathi blow in his head and two-three other blows on the other parts of the body of the appellant. When her brother came, the intimation was given to the Police Station, Salamatpur. Her version was supported by Prabhu (P. W. 4), Bhuriabai (P. W. 5), Ramesh (P. W. 6), Tulsibai (P. W. 9) and Geetabai (P. W. 10 ). All the witnesses are eye-witnesses of the incident. They have categorically deposed that the incident took place because of Bhagwati. When her brother came, the intimation was given to the Police Station, Salamatpur. Her version was supported by Prabhu (P. W. 4), Bhuriabai (P. W. 5), Ramesh (P. W. 6), Tulsibai (P. W. 9) and Geetabai (P. W. 10 ). All the witnesses are eye-witnesses of the incident. They have categorically deposed that the incident took place because of Bhagwati. The appellant was insisting to take her back and when deceased chandrabhan, his father-in-law refused, he went in the village, came after three-four hours along with a spear, asked the wife whether she is accompanying him or not and tried to assault her by spear. When she cried and called her father for help, appellant told her father that he may not come in the way and he be away but when her father remained there, he gave spear blow to him. ( 7. ) DR. Vinay Kumar Pandey (P. W. 3) had performed the autopsy of the dead body. He found one incised wound near the left hand wrist and one penetrating wound on the chest between 2nd to 4th ribs. It was 6x2x15 cm. deep. On internal examination he found that the blood veins and muscles of 2nd, 3rd and 4th ribs were cut and the cause of death was syncope as a result of injury to major vessel. In the opinion of the doctor, the cause of injury may be homicidal or accidental. Time of death was within 24 hours. It is true that the deceased died from the spear injury received in the chest but in the Court the doctor has not given any opinion about the nature of injury whether the injury was sufficient to cause death in the ordinary course of nature and whether it was serious. ( 8. ) FROM the prosecution evidence on record, it is found proved that the deceased died because of the injuries caused by the appellant by spear which was a penetrating weapon. The injuries are corroborated by medical evidence. ( 8. ) FROM the prosecution evidence on record, it is found proved that the deceased died because of the injuries caused by the appellant by spear which was a penetrating weapon. The injuries are corroborated by medical evidence. All the eye- witnesses including the wife of the appellant have stated that the intention of the appellant was to cause injury in case Bhagwati refuses to accompany him, therefore, before assaulting her he put a question to her whether she wants to accompany him or not and when the appellant tried to give spear blow to her, she cried and called her father and father came to save her and asked him that why he became mad, he also told her father that either he may be away otherwise he will kill him. From this kind of evidence it is clear the intention of the appellant was not to kill his father-in-law. When he brought spear from village and came after three-four hours, his intention may be to give threat or beat to his wife and force her to accompany him but from the evidence, it is clear that his intention was not to kill his wife or father-in-law Chandrabhan. He gave only one spear blow because he came in between and he could not be away from that place even after his warning. From the aforesaid evidence, it cannot be concluded that the intention of the appellant was either to commit murder of his wife or his father-in-law. It has also come in the evidence that the blow was not repeated though it was severe in nature. The spear was stuck in the body and it was removed subsequently in presence of police. ( 9. ) IN the light of the aforesaid evidence, we have also perused the finding recorded by the Trial Court. The Trial Court under the aforesaid evidence was of the view that it is a case which will fall under Section 300-Thirdly, IPC, but from the evidence we do not find that the case of the appellant will fall under clause Thirdly of Section 300, as there is no medical evidence on record that the injuries caused by the appellant to his father-in-law were sufficient to cause death in the ordinary course of nature. This legal position has already been clarified by Hon. Vivian Bose, J. (as he then was) in the case of Virsa Singh Vs. State of Punjab, reported in AIR 1985 SC 465. It was held that to bring the case within the purview of Section 300 "thirdly", quite objectively it must be established and proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective. ( 10. ) CONSIDERING the aforesaid principle, if the facts of the instant case are examined, we are of the view that the Trial Court has not recorded a proper finding and has not appreciated the interpretation of clause "thirdly" of Section 300, IPC and to that extent the finding recorded by the Trial Court appears to be perverse. ( 11. ) CONSIDERING the totality of the facts and circumstances of the case and the evidence on record we found that the case of the appellant will not fall under clause "thirdly" of Section 300 but the case of the appellant will fall under section 304, Part II under the definition of culpable homicide not amounting to murder. As the intention of the appellant was not to commit the murder of his father-in-law deceased Chandrabhan, the submission of the learned Counsel for the appellant appears to be reasonable. ( 12. ) THUS, we allow this appeal in part, set aside the conviction of the appellant under Section 302, IPC, instead, convict him under Section 304, Part ii, IPC. Since the appellant has already suffered jail sentence of around 12 years, he is in custody from the day of incident which also appears to be sufficient, therefore, it is directed that the appellant be released on his undergone jail sentence, if not required in any other case. Criminal Appeal partly allowed.