S. P. KUKDA Y, J.:- Appellant is convicted of the offence punishable under section 302 of the Penal Code for having committed murder of his wife Jayashree. He is sentenced to suffer imprisonment for life and to pay fine of Rupees 10,000/- i/d to suffer R.I. for two years by Additional Sessions Judge Ahmednagar. Aggrieved by this order of conviction and sentence, the appellant has filed present appeal. 2. Before entering into the merits we may notice few relevant facts. Jayashree (deceased) married the appellant, a native of Ghodnadi (Shirur), in the year 1996. The appellant had rented house of Sahebrao Avad (P.W. 8) at Nagpur, Sahebrao has a brick kiln near his house. The couple lived in the rented house for some period. Sister of the appellant had rented another block from the house of Sahebrao and was residing there. Sarika aged . 8 years is born within the wedlock. The couple lived together for about two years. Thereafter, there was an estrangement between the spouses and deceased started living with her father at Pathardi. The appellant was living at Ghodnadi. During the period of estrangement appellant used to purchase clothes etc. for his wife and daughter. On 11th March, 2004 appellant had come to Ahmednagar. He sent message to his wife for coming there for purchase of clothes and for a movie. The deceased, thus, left Pathardi at about 11.00 a.m. At about 3.15 p.m. she came to the house of her sister Sangeeta (P.W.4) at Nagar with Sarika. Appellant also came to the house of Sangeeta. From there the couple went to the house of appellant's sister. While they were returning from the house of appellant's sister near the brick kiln, appellant suddenly inflicted injuries on the neck of his wife, threatened Sarika and asked her to run away. Sarika went to the house of her maternal aunt and narrated the incident to her. Sahebrao had also witnessed the incident from the brick kiln. On receipt of the information Sangeeta came to the scene of occurrence. She found appellant standing there with an axe in his hand. When she asked appellant about the reason for the assault, the appellant ran away. Sahebrao saw the appellant throwing axe in the well while leaving the scene of the occurrence. On receipt of the information Sangeeta came to the scene of occurrence. She found appellant standing there with an axe in his hand. When she asked appellant about the reason for the assault, the appellant ran away. Sahebrao saw the appellant throwing axe in the well while leaving the scene of the occurrence. After departure of appellant, Sangeeta shifted her sister to Anand Rishiji Hospital and conveyed the information to her father Fulchand Gatagat (P.W.6). On his arrival Fulchand lodged report (Ex.38) with Kotwali Police Station. On the basis of this report offence came to the registered against the accused. 3. At the hospital Doctor Popat Bhandari (PW 7) examined the deceased on 11th March, 2004. He found the deceased gasping for breath. She had sustained three injuries on the thyroid region of the neck. The injuries were (i) CLW 4" x l/2"; (ii) CLW 2" x l/2"; (iii) CLW 2" X 1/2". All the injuries were muscle deep. The doctor diagnosed fracture of right matic arch and maxillary sinus (Ex.40). The deceased was then shifted to Dinanath Mangeshkar Hospital at Pune on 13th March, 2004 and was again admitted to Anand Hospital, Nagar on 8th May, 2004 and was there till she expired on 24th June, 2004. 4. Medical Officer Pramod Pangarkar of Civil Hospital, Ahmednagar; performed autopsy. He found transverse linear white scars on the neck, surgical wounds; bedsores on lumber region and ulcer on left foot. During internal examination the Medical Officer noticed fracture of cervical vertebra. Right para vertebra was protruding. The peritoneum was reddish and edematous, it contained 200 mts. of foul smelling fluid. There was trachealesophagus fistula 2 cms. in diameter with inflammation and edema. In his opinion the death was caused on account of septicemic shock due to pneumonia and peritonitis caused by injury no.1. 5. In view of the medical opinion that the death was referable to injury no.1 and the ocular evidence, appellant was prosecuted for committing murder of his wife. 6. At the trial the appellant mentioned that after the marriage he found that the deceased was previously married and was suffering from mental sickness. The appellant adopted defence of total denial. 7. In support of the appeal learned counsel Mrs. S. S. Jadhav referred to the omissions in the ocular testimony of child witness Sarika and eye-witness Sahebrao. 6. At the trial the appellant mentioned that after the marriage he found that the deceased was previously married and was suffering from mental sickness. The appellant adopted defence of total denial. 7. In support of the appeal learned counsel Mrs. S. S. Jadhav referred to the omissions in the ocular testimony of child witness Sarika and eye-witness Sahebrao. The thrust of the arguments was mainly regarding the nature of offence committed by the appellant. On this point learned counsel would argue that there was no apparent reason for the assault, the nature of the weapon used and the fact that the injuries inflicted were muscle deep would indicate that minimum force was used. According to the learned Counsel, these factors, coupled with the fact that the deceased survived for nearly three months and died of septicemic shock due to pneumonia and peritonitis would indicate that the intention was not to cause death. On this premise, learned counsel contends that at the most offence under section 326 of the Penal Code is made out. 8. Per contra, learned APP Shri. Varale has pointed out that evidence of Sarika and Sahebrao is harmonious and has a ring of truth. Their evidence establishes complicity of the appellant in the commission of the offence. Shri. Varale refers to the medical evidence for supporting findings of the trial judge that the intention of the appellant was to cause death. 9. We have carefully scanned evidence of the prosecution witnesses with the assistance of counsel for both the parties. Presence of Sarika at the time of occurrence is not is dispute. She is eight years old and the manner in which she withstood the rigor of the cross-examination without conceding a single point shows her maturity. The incident appears to have been itched on her memory. Presence of Sahebrao near his brick kiln at that time and hour of the day is also natural. Recovery of the axe lends required credence to his testimony. Evidence of both these witnesses is natural and honest. This appears to be the reason why learned counsel has concentrated on the nature of the offence committed by the appellant. Considering the totality of the circumstance we do not find any infirmity in the appreciation of the evidence of Sarika and Sahebrao by the trial judge. Evidence of both these witnesses is natural and honest. This appears to be the reason why learned counsel has concentrated on the nature of the offence committed by the appellant. Considering the totality of the circumstance we do not find any infirmity in the appreciation of the evidence of Sarika and Sahebrao by the trial judge. In the light of this, we have no difficulty in upholding finding recorded by the trial judge that the appellant is the author of injuries suffered by the deceased and that the deceased died a homicidal death. 10. Turning to the vexed issue as to whether the homicide amounts to murder or not, at the outset the distinction between the two must be noticed. Culpable homicide is not murder if the case is brought within the purview of five exceptions to section 300 of the Penal Code. It is murder if the case falls within any of the four clauses of section 300. Even in cases where none of the five exceptions are invoked by the accused, the onus is always on the prosecution to establish that the case falls under any of the four clauses of section 300 of the Penal code. If the prosecution fails to discharge this onus the case would fall under the category of homicide not amounting to murder. There can be no difficulty in deciding this controversy in cases where the intention to kill is established. In other category of cases it has to be shown that the accused had requisite intention or knowledge to inflict injury sufficient in the ordinary course of nature to cause death. The intention can be gathered from the nature of the injury inflicted. If the injury itself is sufficient to cause death and the intention was to inflict that injury, intention to cause death has to be presumed. In such cases the factors such as absence of the knowledge of the anatomy or the likelihood of the survival of the deceased by skillful treatment are to be left out of the consideration. Law on this point is succinctly laid down by the Supreme Court in Virsa Singh Vs. State of Punjab ( AIR 1958 SC 465 ) : 2007 ALL SCR (O.C.C.) 33. The tests are summarized in paras 14 to 19 thus: "14. Law on this point is succinctly laid down by the Supreme Court in Virsa Singh Vs. State of Punjab ( AIR 1958 SC 465 ) : 2007 ALL SCR (O.C.C.) 33. The tests are summarized in paras 14 to 19 thus: "14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly"; 15. First, it must establish, quite objectively, that a bodily injury is present; 16. Secondly, the nature of the injury must be proved. These are purely objective investigations. 17. Thirdly, it must be 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. 18.Once these there elements are proved to be present, the enquiry proceeds further and, 19.Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is 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." 11. In the present case the motive is obscure. The couple was to go for a movie after purchase of clothes. While they were on their way with their daughter, something went wrong and the husband inflicted three injuries on the neck of the wife with an axe. What actually happened is not established. Learned counsel for the appellant referred to the explanation of the appellant given in his examination conducted under section 313, Cr.P.C. In the absence of tangible evidence to substantiate this explanation, we do not deem it necessary to dilate on this aspect. The fact remains that the motive is obscure. Thus, it will have to be seen whether the intention is manifested by nature of the injuries. Doctor Bhandari (PW 7) has described injuries suffered by the deceased in injury certificate (Ex.40). There were three injuries on the neck. (1) CL W 4" x 1/2"; (2) CLW 2" x 1/2" and (3) CLW 2" x 1/2". All the injuries were muscle deep. The doctor has categorized injury nos.2 and 3 as simple and injury no.1 as grievous. Dr. Pangarkar (P.W.1) performed autopsy. At that time he could only see the scars. There were three injuries on the neck. (1) CL W 4" x 1/2"; (2) CLW 2" x 1/2" and (3) CLW 2" x 1/2". All the injuries were muscle deep. The doctor has categorized injury nos.2 and 3 as simple and injury no.1 as grievous. Dr. Pangarkar (P.W.1) performed autopsy. At that time he could only see the scars. He, however, mentioned that septicemic shock due to pneumonia and peritonitis which caused the death is related to injury no. 1. There can be no doubt that injury no. 1 or for that matter any injury to the respiratory tract may result in causing pneumonia and peritonitis. What is lacking is the firm assertion that in all cases where such injuries are caused, the complication in the form of pneumonia and peritonitis is a matter of routine. There can be cases where the complications do not develop and the patient is saved. The point is that the pneumonia and peritonitis can be referable to other causes and not to injury no.1 alone. This aspect assumes importance in the present case because the wounds on the neck had healed and were not infected. In addition tracheotomy was performed and the post-mortem report shows fistula. The tracheotomy can be a potential reason for causing infection leading to pneumonia and peritonitis. There is a reference to the fracture of the vertebra in post-mortem report but, in the absence of data showing damage to spinal chord, no significance can be attached to this fracture of vertebra. It may be noticed here that no reference to this fracture is found in certificate Ex.40, though Dr. Bhandari has referred to C.T. Scan which appears to have disclosed fracture of right matic arch and sinus. In this background we are required to concentrate on injury no.1 alone. None of these two medicos have mentioned that by itself injury no.1 suffered by the deceased on the neck was sufficient in the ordinary course of nature to cause death. The fact that injury no.1 was muscle deep, coupled with the fact that tracheotomy had resulted in developing tracheo esophagal fictula, it cannot be said that only the injury no.1 is responsible for causing pneumonia and peritonitis. In this background the medical opinion would not help the prosecution to establish intention of the appellant to cause, death. 12. Turning to the attending circumstances we find that the motive is obscure. In this background the medical opinion would not help the prosecution to establish intention of the appellant to cause, death. 12. Turning to the attending circumstances we find that the motive is obscure. Though the injuries are on the vital part of the body, the fact that the injuries were only muscle deep, shows that minimal force is used for infliction of the injuries. In the setting in which the incident took place and the fact that minimum force is used; the possibility that the aggression was not the manifestation of anger but the expression of frustration, can not be ruled out. The fact that minimum force is used and absence of severe injury, would show that the intention of the author was not to cause death. There is total absence of material on record justifying the inference that the injuries inflicted by the appellant were by themselves sufficient to cause death in the ordinary course of nature. The trial Court has dealt with this aspect in para 28 of the judgment. From the discussion it is obvious that the conclusion is based merely on the fact that the injuries are inflicted on the neck which is a vital part of the body. This approach, to say the least, is erroneous. There has to be a pragmatic assessment of the factors involved. As the nature of the injuries sustained and their sufficiency to cause death is not adverted to, we can not sustain finding of the trial court that the appellant is guilty of committing homicide amounting to murder. The assessment of the data available on record clearly discloses that none of the injuries inflicted on the deceased was either singly or cumulatively, sufficient to cause death. The fact that the injury resulted in leading to some complication which resulted in causing death would not alter nature of the injury caused and would not establish that injuries suffered by the deceased were either singly of cumulatively sufficient to cause death. In the light of the situation obtaining in this case in our considered opinion the prosecution has failed to establish that the appellant either had intention to cause death or to cause bodily injury which is sufficient to cause death in the ordinary course of nature. The fact remains that the appellant did cause injuries to the deceased by means of a lethal weapon. The fact remains that the appellant did cause injuries to the deceased by means of a lethal weapon. The offence would thus fall under section 326 of the Penal Code. The appeal, therefore deserves to be partly allowed. The appeal is partly allowed. The order of conviction and sentence of the appellant for the offence punishable under section 302 of the Indian Penal Code is quashed and set aside. The conviction of appellant is modified. The appellant stands convicted for the offence punishable under section 326 of the Indian Penal Code and shall suffer rigorous imprisonment for five years. The fine imposed on the appellant by the trial court with the default stipulation for non payment and direction for payment of compensation to father of deceased from the fine amount is maintained. The set off, if admissible, be granted to the appellant in accordance with the provisions of law. Appeal partly allowed.