JUDGMENT : M.G. Giratkar, J. 1. As per order dt. 2.8.2001 passed by this Court, both the appeals filed by convict are to be dealt with together and treated as one. Accordingly, both the appeals are heard and disposed of by this Judgment. Appellant has assailed the Judgment of conviction in Sessions Trial No. 243 of 2000 by which he was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for three months. 2. The case of prosecution against the appellant, in short, is as under : Before some days of incident, there was quarrel between the appellant and deceased Santosh. On the day of incident, i.e. on 30.12.1999, at about 8.30 p.m. Sheikh Yunus (PW 1) and deceased Santosh Manikrao Khirekar came on motor cycle in front of Dr. Sakhare's hospital. Deceased Santosh was driving motor cycle. Said motor cycle was owned by Shailesh Wankhede. Shailesh Wankhede was seen in front of Dr. Sakhare's hospital. At that time, Santosh stopped the motor cycle and made it to stand. The accused came there and stabbed on left side of waist of Santosh by means of gupti. The appellant ran away. Sk. Yunus took Santosh to hospital of Dr. Sakhare. Dr. Sakhare advised him to take Santosh to Government hospital. Sk. Yunus took deceased Santosh by auto rickshaw to Government hospital. Father of deceased Manikrao also reached to the hospital. Deceased was operated in the Mayo hospital. Deceased was taken out to Operation theater. He was dead. 3. Father of deceased namely Manikrao Kisanji Khirekar lodged report (Exh. 10). Police Inspector PSI Vasant s/o. Laxman Bhoye (PW6) investigated the crime, prepared inquest panchanama, arrested the accused on 8.1.2000. Accused confessed to show the weapon and clothes in presence of panchas. Accordingly, accused shown the weapon and clothes. Those were seized. PSI Bhoye obtained the blood sample etc. of deceased from the Medical Officer. The seized property was sent to Chemical Analyser. After complete investigation, charge sheet was filed against the appellant. 4. Charge was framed at Exh. 2. Same was read over and explained to the appellant. He pleaded not guilty and claimed to be tried. Defence appears to be of total denial. 5. Prosecution examined six witnesses. The seized property was sent to Chemical Analyser. After complete investigation, charge sheet was filed against the appellant. 4. Charge was framed at Exh. 2. Same was read over and explained to the appellant. He pleaded not guilty and claimed to be tried. Defence appears to be of total denial. 5. Prosecution examined six witnesses. Trial Court recorded statement of appellant under Section 313 of the Code of Criminal Procedure. After hearing the prosecution and defence, the trial Court convicted the appellant, as stated above. 6. Heard learned Counsel Mr. R.P. Joshi. He has submitted that there is no dispute about the incident. Learned Counsel has submitted that appellant had no intention to cause death of deceased. Appellant only inflicted one blow on the waist of deceased. It was not sufficient to cause death. Medical Officer who conducted post mortem not examined by prosecution. There is no evidence to show that the injury caused by the appellant was sufficient to cause death in the ordinary cause of nature. The learned Counsel has pointed out Post Mortem Report (Exh. 32). Learned Counsel has submitted that Injury Nos. 1 and 2 were caused during the operation. Those were surgical injuries. Injury no. 3 was the only injury caused by the appellant. Cause of death was hemorrhagic shock due to stab injury. Learned Counsel Mr. Joshi has urged that appellant is wrongly convicted for the offence punishable under Section 302 of the Indian Penal Code; at the most offence under Section 326 of the Indian Penal Code is proved against him. At last, prayed to allow the appeal. 7. Heard Mr. I.J. Damle, learned A.P.P. for State. He has submitted that the evidence of Sk. Yunus Sk. Subhan (PW 1) is well corroborated by Anand Ganpat Sakhare (PW 3) and Kailash Manikrao Khirekar (PW 4). The weapon was seized at the instance of accused. As per the C.A. Reports (Exh. Nos. 45 and 46), blood was found on the knife (gupti). The said blood was of deceased. Prosecution has proved guilt of appellant beyond reasonable doubt. Learned A.P.P. has submitted that the deceased was not aggressive. Private defence is not available to the appellant. Learned A.P.P. has submitted that the appeal is devoid of merits and liable to be dismissed. Nos. 45 and 46), blood was found on the knife (gupti). The said blood was of deceased. Prosecution has proved guilt of appellant beyond reasonable doubt. Learned A.P.P. has submitted that the deceased was not aggressive. Private defence is not available to the appellant. Learned A.P.P. has submitted that the appeal is devoid of merits and liable to be dismissed. In support of his submissions, the learned A.P.P. has pointed out the following decisions: (a) Bavisetti Kameswara Rao @ Babai vs. State of Andhra Pradesh represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad reported in (2008) 15 SCC 725 . In this case, single injury was inflicted with force on vital part of the body with a long screw driver having sharp end, penetrating 12 cm deep in the body cutting liver and spleen. It was held by Hon'ble Supreme Court that "this was a case where the act was done with intention of causing bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death, covered by clause "Thirdly" of S. 300 IPC and would, therefore, clearly come within the definition of "murder". (b) Trimbak vs. State of Maharashtra reported in (2008) 17 SCC 213 : [2008 ALL MR (Cri) 1712 (S.C.)]. In this case, plea of applicability of S. 300 Exception 4 of Indian Penal Code was raised by the appellant contending that assault was made in course of a sudden quarrel without any premeditation and without taking any advantage or acting in a cruel manner. Only one blow was given after picking up an axe. Prior to that, he was unarmed. It was held by Hon'ble Supreme Court that conviction of appellant would be under Section 3041 of the Indian Penal Code and not under Section 302 of the Indian Penal Code. The appeal was allowed and custodial sentence of ten years was awarded to the appellant. (c) Virsa Singh vs. State of Punjab reported in AIR 1958 SC 465 : [2007 ALL SCR (O.C.C.) 33]. The appeal was allowed and custodial sentence of ten years was awarded to the appellant. (c) Virsa Singh vs. State of Punjab reported in AIR 1958 SC 465 : [2007 ALL SCR (O.C.C.) 33]. It was held by Hon'ble Supreme Court that "In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted.......It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is, whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.... The appeal is dismissed." 8. There is no dispute that, at the time of incident, appellant inflicted stab injury to deceased Santosh on his back. Sk. Yunus (PW 1) has taken the deceased to Mayo hospital. Manikrao Khirekar (PW 2), father of deceased also reached to the hospital. Deceased was operated. During the operation, he died. Evidence of Sk. Yunus (PW 1) is well corroborated by the evidence of Dr. Anand Sakhare (PW 3) and Kailash Khirekar (PW 4). Kailash Khirekar (PW 4) has stated that he saw the appellant while causing injury to the deceased. Dr. Sakhare has stated that one injured person was brought by one person in his hospital. Evidence of Sk. Yunus (PW 1) is well corroborated by the evidence of Dr. Anand Sakhare (PW 3) and Kailash Khirekar (PW 4). Kailash Khirekar (PW 4) has stated that he saw the appellant while causing injury to the deceased. Dr. Sakhare has stated that one injured person was brought by one person in his hospital. There was stab wound on waist left side of injured. He advised them to go to Government Hospital i.e. Mayo hospital. Injured was taken to Mayo hospital. 9. Sunil Nimje (PW-5) proved discovery panchanama at the instance of appellant. Appellant confessed to show weapon and clothes hidden in his house. Memorandum panchanama (Exh. 37) was recorded in presence of Sunil Nimje (PW-5). Thereafter, they proceeded to the house of appellant. Appellant produced one gupti (knife) and clothes from his house. Those were seized as per Seizure panchanama (Exh. 38). Seized properties were sent to Chemical Analyser, Nagpur. C.A. Reports are at Exh. Nos. 44, 45 and 46. As per C.A. Report (Exh. 44), blood of deceased Santosh was of group "O". As per Exh. 46, weapon (i.e. Exh. 7) was stained with blood on blade. It was of group "O". Therefore, it is clear that appellant caused injury to deceased on his waist. 10. Learned Counsel Mr. Joshi, for the appellant has not disputed about the incident. Learned Counsel has submitted that the incident took place in the year 1999. Deceased was in jail for more than three years. As per the order of this Court, he was released on bail. Learned Counsel has submitted that the injury caused by the appellant was not sufficient to cause death. Learned Counsel has pointed out Post Mortem report (Exh. 32) and submitted that injury nos. 1 and 2 were surgical injuries which were caused during operation. Injury No. 3 was of size 2 1/2 cm x 1 1/2 cm cavity deep. As per the evidence of Dr. Sakhare (PW-3), he had seen only one injury when deceased was brought to his hospital. As per his advise, deceased was taken to Mayo hospital. Medical Officer who performed post mortem not examined by the prosecution. There is no evidence to show that injury no. 3, which was the only injury caused by appellant, was sufficient to cause death in ordinary course of nature. Learned Counsel has submitted that cause of death might be injury nos. Medical Officer who performed post mortem not examined by the prosecution. There is no evidence to show that injury no. 3, which was the only injury caused by appellant, was sufficient to cause death in ordinary course of nature. Learned Counsel has submitted that cause of death might be injury nos. 1 and 2 which were surgical injuries. In support of his submission, the learned Counsel has pointed out decision in the case of Ram Jattan and Others vs. State of Uttar Pradesh, AIR 1994 SC 1130 . Hon'ble Supreme Court has observed as under : "The doctor opined that except injuries Nos. 7 and 9 all other injuries were simple. He did not say whether injuries Nos. 7 and 9 were grievous but simply stated that they were to be kept under observation.........He, however, noted that 8th and 9th ribs were fractured.........It is not noted that any of the injuries was sufficient to cause death in the ordinary course of nature.........In any event there is no indication anywhere in the evidence of the doctor or in the postmortem certificate that any of the injuries was sufficient in the ordinary course of nature to cause death........The appeal is accordingly partly allowed." 11. In the present case, post mortem (Exh. 32) does not show that only injury no. 3 was sufficient to cause death. The post mortem report shows that injury nos. 1 and 2 were surgical injuries. Those injuries might be the cause for death of the deceased. The Medical Officer not examined by prosecution to show which injury caused the death. 12. Learned Counsel Mr. R.P. Joshi has pointed out the decision of Hon'ble Supreme Court in the case of G. Satyanarayana Reddy and Others vs. State of A.P. reported in 1994 Supp (2) SCC 287. Hon'ble Supreme Court has observed as under : "We may take up the cases of accused 1, 10 and 12 first. Having heard Shri Subba Rao for them, we do not find any infirmity in the conviction of these appellants. Hon'ble Supreme Court has observed as under : "We may take up the cases of accused 1, 10 and 12 first. Having heard Shri Subba Rao for them, we do not find any infirmity in the conviction of these appellants. Keeping, however, in view the fact that the occurrence is of 1980 and these appellants have been on bail since 1983 pursuant to the order of this Court and each of them has already undergone imprisonment for a year or so, we reduce the sentence of imprisonment to the period already undergone.......The mere fact that a stab-injury was found at the back of the deceased and PWs 3 and 5 deposed about A-14 having given a stab injury at the back, is not enough to sustain the conviction of A-14 under Section 302 which would see him behind the bars for life......We, therefore, set aside his conviction under Section 302......In the result, the appeal is dismissed qua A-5, allowed as regards A-14 and as to the three others, while maintaining their conviction under Section 326, their sentence is reduced to the period of imprisonment already undergone." 13. In the present case, the injury caused by the appellant was not sufficient to cause death in the ordinary course of nature. There is no evidence by the side of prosecution to that effect. Hence, the act of appellant comes within the purview of causing grievance injury and it is an offence punishable under Section 326 of the Indian Penal Code. Hence, the appellant is liable to be convicted for the offence punishable under Section 326 of the Indian Penal Code. 14. Learned Counsel Mr. Joshi has pointed out the decision in the case of State of Rajasthan vs. Shera Ram @ Vishnu Dutta reported in (2012) 1 SCC 602 : [2011 ALL SCR 2984]. Hon'ble Supreme Court has observed as under : "30. In the statement of PW 20, Dr. C.P. Bhati, it is nowhere stated that the injuries caused by the respondent were sufficient in the ordinary course of nature to cause death. It is also not recorded in the postmortem report, Ext. 37. This was a material piece of evidence which the prosecution was expected to prove in order to bring home the guilt of the respondent. This is a serious deficiency in the case of the prosecution. It is also not recorded in the postmortem report, Ext. 37. This was a material piece of evidence which the prosecution was expected to prove in order to bring home the guilt of the respondent. This is a serious deficiency in the case of the prosecution. Absence of this material piece of evidence caused a dent in the case of prosecution. The High Court has not taken note of this important aspect of the case." "34. In the present case also, there is no documentary or oral evidence to prove the fact that the injuries caused by the respondent to the deceased were sufficient in the ordinary course of nature to cause death. This, however, cannot be stated as an absolute proposition of law and the question whether the particular injury was sufficient in the ordinary course of nature to cause death or not is a question of fact which will have to be determined in light of the facts, circumstances and evidence produced in a given case. (Ref. Halsbury's Laws of India, 5(2), Criminal Law II)." "35. There could be cases where injuries caused upon the body of the deceased per se can irresistibly lead to the conclusion that the injuries were sufficient to cause death in the ordinary course of nature, while there may be other cases where it is required to be proved by documentary and oral evidence. Resultantly, it will always depend on the facts of each case. Thus, in such cases, it may neither be permissible nor possible to state any absolute principle of law universally applicable to all such cases." 15. Mr. R.P. Joshi, learned Counsel has pointed out the decision in the case of A.C. Gangadhar vs. State of Karnataka reported in (2009) 14 SCC 710 . Hon'ble Supreme Court has observed as under : "What has been proved against the appellant is that he caused an injury with an axe on the head of PW 5. The evidence of PW 5 has been believed by both the courts and it also stands corroborated by the medical evidence. We find no good reason not to accept the finding recorded by the courts below and confirm the conviction of the appellant under Section 326 IPC. The nature of injury indicates that blow must have been give by A1 with great force on the forehead of PW-5 as it had caused a fracture. We find no good reason not to accept the finding recorded by the courts below and confirm the conviction of the appellant under Section 326 IPC. The nature of injury indicates that blow must have been give by A1 with great force on the forehead of PW-5 as it had caused a fracture. Therefore, the conviction of the appellant under Section 326 is quite proper. Considering the nature of injury caused to PW-5, we do not think that the sentence imposed upon the appellant can be said to be excessive." 16. After hearing both the sides, the Judgment cited by the learned A.P.P, are on different footing. Hon'ble Supreme Court has observed in the above cited Judgments that when there is no evidence of Medical Officer who conducted Post Mortem to show that the injury was sufficient to cause death then that Injury cannot be taken as sufficient to cause death. In the above cited decisions of Hon'ble Supreme Court, appellant/accused was held guilty for the offence punishable under Section 326 of the Indian Penal Code. In the present case, appellant came with a gupti in his hand and gave only one blow on the waist of the deceased. It was a bleeding injury. Deceased was immediately taken to the hospital of Dr. Sakhare (PW 3) Dr. Sakhare saw only one injury on the waist of deceased. He advised Sk. Yunus (PW 1) to take the deceased to Government hospital/Mayo hospital. Immediately, deceased was taken in Mayo hospital and operated. During the course of operation, injury nos. 1 and 2 were caused to the deceased. As per the post mortem report, three injuries were noted. The post mortem report does not make it clear as to which injury was sufficient to cause death during the course of nature. Medical Officer not examined by the prosecution. Hence, the act of the appellant was not to commit murder of deceased. He is held guilty for the offence punishable under Section 326 of the Indian Penal Code. Hence, we pass the following order. ORDER The appeal is partly allowed. The impugned Judgment is hereby quashed and set aside. Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Instead, he is convicted for the offence punishable under Section 326 of the Indian Penal Code. Hence, we pass the following order. ORDER The appeal is partly allowed. The impugned Judgment is hereby quashed and set aside. Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Instead, he is convicted for the offence punishable under Section 326 of the Indian Penal Code. Appellant is sentenced to suffer rigorous imprisonment for three years for the offence punishable under Section 326 of the Indian Penal Code. Appellant was in jail for more than three years. He is on bail as per the order of this Court. His bail bonds shall stand cancelled. The record and proceedings be sent back to the trial Court. Fees of the Counsel appointed for the appellant is quantified at Rs. 5,000/-.