ORDER [ENTITY], J.
1. This appeal is preferred by the appellant-accused against the order of conviction and sentence dated 20th March, 1984, passed by the learned Addl. Sessions Judge, Pune in [CASE NUMBER] whereby the learned Judge convicted the appellant-accused for an offence under [SECTION] of [ACT] and sentenced him to suffer imprisonment for life.
2. The prosecution case in short is that, complainant [ENTITY] wife of [ENTITY] and the appellant-accused are the residents of a chawl in Shitole Nagar at village Sangvi and as they are next door neighbours, some quarrels used to take place between them on some petty matters.
3. On 19-3-83, according to the prosecution, [ENTITY], the complainant has sprinkled water in front of her house. The cycle of the appellant- accused was resting the wall of his house. At that time, the appellant-accused has objected for sprinkling the water by [ENTITY] as the water was fallen over the cycle of the accused. [ENTITY], husband of [ENTITY] was called by accused [ENTITY]. It is alleged that appellant-accused caught collar of the shirt of [ENTITY] and [ENTITY] also caught the shirt oi the appellant-accused. At that time, the neighbours intervened and they separated both of them. It is the prosecution case that or the same day in the evening, [ENTITY] (deceased) brother of [ENTITY] and his friend [ENTITY] had come to Sangvi on motor-cycle. They went to the house of [ENTITY] but [ENTITY] was not in the house. [ENTITY] the wife of [ENTITY] entertained them by serving tea. At that time, [ENTITY] narrated the morning incident to [ENTITY]. [ENTITY] therefore, advised her not to raise quarrel. It reveals from the record that [ENTITY] also told [ENTITY] that he is going to give same advise to accused [ENTITY]. They started reluming back from the house of [ENTITY]. While they were proceeding towards the motor-cycle which was parked out side, [ENTITY] saw the appellant-accused standing on the Ota of his house. Thereupon, he ([ENTITY]) questioned him (appellant-accused) not to raise quarrel. It is alleged that at that time, appellant-accused got annoyed and retorted "Am I a rascal" and he pounced upon [ENTITY] who was standing below the Ota, with the result, [ENTITY] fell down on the ground. At that time, it is alleged that the appellant-accused took out a knife from his pocket, opened the knife and inflicted blow on the chest portion of [ENTITY] which resulted into his death on the spot. At that time, according to the prosecution, [ENTITY] who was standing near [ENTITY], raised cry. On hearing the cry of [ENTITY], one [ENTITY] came to the spot and he saw that the appellant-accused was standing near the legs of [ENTITY] with a knife in his hand and the knife blade was stained with blood. He then rushed to the house of one [ENTITY] and brought him on the spot. By that time, the appellant-accused had gone on his Ota and he was found standing there with a knife in his hand. [ENTITY] who is a respectable person of that village directed the appellant-accused to go inside the house. It is alleged that the appellant-accused followed the direction and went inside his house. Thereafter, [ENTITY] bolted the door from outside, and he contacted the police on phone. On receiving phone, [ENTITY] went to the spot alongwith his staff members within 10 minutes. [ENTITY] was lying in an injured condition on the spot. He was immediately removed to Sassoon Hospital where he was declared dead. Thereafter, it is alleged that [ENTITY] opened the door of the house of the appellant-accused. The appellant-accused was found sitting on the cot with the same knife in his hand. His clothes were stained with blood. [ENTITY] then seized the knife and blood stained clothes of the appellant-accused under the panchanama Exhibit 16. Thereafter, the appellant-accused was arrested. Complaint of [ENTITY] was recorded at Exhibit 9. Thereafter, the investigation started.
4. After recording the statements of the witnesses and on receiving the postmortem report, a Charge-sheet was submitted in the Court of Judicial Magistrate, First Class, Pune. The learned Magistrate committed the case to the Court of Sessions. Charge under [SECTION] of [ACT] was framed and after recording the prosecution evidence, the plea of appellant-accused under [SECTION] of [ACT] was recorded. The learned Judge held the appellant-accused responsible for committing murder which falls under [SECTION] of [ACT] and convicted the appellant-accused for the offence punishable under [SECTION] of [ACT] and sentenced him to jail for life, by his order dated 20th March, 1984. Hence this appeal.
5. Head Smt. [ENTITY], learned Counsel for the appellant and Mr. [ENTITY], learned A.P.P. for State, in view of the statement made by the appellant-accused under [SECTION] of the [ACT], Smt. [ENTITY] advanced her arguments on the plea of right of private defence and urged for acquittal of the appellant-accused. We are unable to accept the submission of Smt. [ENTITY].
6. Having gone through the record and proceedings of this case, it reveals that the incident in question had taken place within the spur of the moment. According to P.W. 2 [ENTITY] who is the witness of the first incident of quarrel which took place in the morning between [ENTITY]'s husband [ENTITY] and the appellant-accused in front of her house out of sprinkling of water which had fallen ever the cycle of the appellant-accused. At that time, both [ENTITY] husband of [ENTITY] and the appellant-accused had held collars of the shirts of each other, and when the neighbours separated them. Thereafter, it reveals from the record that at the evening time, deceased [ENTITY] had come to the house of [ENTITY] alongwith his friend [ENTITY], P.W. 4 on casual visit. At that time, [ENTITY] narrated the morning incident before deceased [ENTITY]. It is stated that deceased [ENTITY] advised [ENTITY] not to quarrel. Simultaneously, he had also told [ENTITY] that he ([ENTITY]) is going to give same advise to the appellant-accused also. It reveals that while deceased [ENTITY] and [ENTITY] started to go towards their motor-cycle, they saw appellant-accused sitting on the Ota of his house. It may be noted here that the houses of the appellant and the complainant [ENTITY] arc- adjoining to each other i.e. the next door neighbour. On seeing the appellant-accused, it reveals that deceased [ENTITY] advised the appellant-accused not to quarrel. At the time, it reveals that the appellant-accused told deceased [ENTITY] "Am I a rascal" and he pounced upon [ENTITY] from the Ota and as a result [ENTITY] fell down below me Ota. This event was witnessed by [ENTITY], P.W. 2 and [ENTITY]. P.W. 4. It is stated in the deposition of [ENTITY]
"On seeing [ENTITY] my Dir [ENTITY] asked [ENTITY] not to raise quarrels. He retorted in filthy language "Mi Kai Chutia Ahe Kai'. My deer [ENTITY] then started walking towards the motor-cycle where it was parked. [ENTITY] suddenly pounced on him. The Ota where [ENTITY] was standing is about 2 feet in height. [ENTITY] fell [ENTITY] down. [ENTITY] fell down in such a position that he was facing the sky. [ENTITY] fell over him. He inserted his left hand in his left hand side pant pocket and took out the knife. When he took out the knife I heard some noise and saw the blade. With that same knife he assaulted my deer [ENTITY] on his chest portion."
7. Her evidence is fully corroborated with the medical evidence. The doctor found the following injuries:-
(1) Penetrating wound of 4/5" x 2/5" x 6 1/2" over the left wall of chest. The injury was so deep ihat during internal examination it was found that-
(a) Left fifth costal cartilage cut through and through.
(b) Pericardium was cut on left and right side and it was full of blood.
(c) Right and left ventricles of the heart were penetrated through and through (underline supplied).
The plea of the appellant-accused is that of his right of private defence. There is a medical certificate that the appellant-accused sustained seven minor injuries and all are abrasive. The eye witnesses to the incident i.e. P.W. 2 and P.W. 4 have deposed that the appellant-accused fell on the deceased [ENTITY] and thereafter, he took out a knife from his pant pocket and inflicted knife blow on the chest of deceased [ENTITY]. The appellant-accused has stated in his statement that deceased [ENTITY] and his friend P.W. 4 [ENTITY] had come to his house with a view to attack him. He also told them not to come near him as he was having a knife in his pocket. Despite that, deceased [ENTITY] held the legs of the appellant and under the apprehension of danger to his life, the appellant-accused inflicted a knife blow to save his life.
8. Having regard to the prosecution evidence, particularly, the eye witnesses, the incident in question has taken place within a spur of the moment. There was no previous enmity between the deceased [ENTITY] and the appellant-accused. It is the probable story that deceased [ENTITY] on seeing the appellant-accused standing on the Ota of his house could have made a gesture of giving advice for not raising quarrel with the neighbours and out of that advice something must have been transpired between the deceased and the accused. It is in the evidence of eye witnesses that after falling down of deceased [ENTITY] and appellant-accused on the ground, the appellant-accused took out a knife of his pant pocket. It shows that there was no motive or intention to kill the deceased. There was no motive to do so. All of a sudden, out of some quarrel took place between the appellant and the deceased which has resulted into fatal injury to the deceased. It cannot be held that the appellant was justified in exercising his right of private defence under the apprehension of danger to his life. It reveals from the record that the deceased [ENTITY] was unarmed and his friend P.W. 4 also had no weapon in his hand. However, we are of the opinion that in view of the prosecution evidence, particularly the evidence of P.W. 2 and P.W. 4 read with the statement of the appellant-accused recorded under [SECTION] of the [ACT], there was no immediate intention of the appellant-accused to kill the deceased. The knife was inflicted on the vital part of the deceased and according to the medical evidence, it was very heavy blow and one blow was sufficient to cause death. However, the learned Judge held that the murder committed by the appellant-accused falls under [SECTION].
Clause 3- With the intention of causing bodily injury to any person sufficient in the ordinary course of nature to cause death
9. Mr. [ENTITY], learned A.P.P vehemently supported the reasoning of the learned Judge and in support of his argument, he relied on the case of [PRECEDENT], . in this case, the Apex Court has considered the scope of [SECTION] and the circumstances of its application. He relied on certain segments of the Apex Court [PRECEDENT], reported in , , [PRECEDENT]., Jai [ENTITY] v. State of (Delhi Admn., [PRECEDENT] and it is the rule that the scope of [SECTION] being the subject matter of various decisions of the Supreme Court and the High Courts. Analysing Clause 3rdly and as to what the prosecution must prove, it was held in the case of Virsa Singh v.
State of Punjab, reported in as under :-
'First , it must establish, quite objectively, that a bodily injury is present;
Secondly, the 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 bodily 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 is sufficient to cause death in the ordinary course of nature. This part of enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
10. In the instant case, the test to be applied under Clause Thirdly is that intention must be proved. That is the basic principle in the criminal jurisprudence which must be proved. However, it is not the rule that the intention must be proved or must be present at the time of commission of offence. In the case of murder, the test laid down by the Apex Court in [ENTITY]'s case supra for arriving at the right conclusion while considering the gravity of the offence "not accidental or unintentional, or that some other kind of injury, was intended." In the present case, it could not be said that it was an accidental injury nor it could be said that it was intended injury or it could not be even held that it was other kind of injury was intended to inflict by the accused. As observed above, the incident took place within the spur of moment. There is no previous enmity. Therefore, there was no question of any motive. There was no intention to cause any injury to the victim but it reveals from the record that on seeing the deceased [ENTITY] alongwith his friend and when the deceased advised the appellant-accused not to raise quarrel, the appellant accused got annoyed and retorded "Am I a rascal?" According to the prosecution evidence, the appellant accused pounced on [ENTITY] and both of them fallen down. There, some scuffle took place between the appellant and the deceased [ENTITY] with the result the appellant-accused also caused 7 minor injuries on his person. As per medical certificate (Exh. 35), following injuries were sustained by the accused person:-
1. Abrassion 1/2" x 1/2" left shoulder.
2. Abrassion 1/2" x 1/4" left elbow.
3. Abrassion 1/4" x 1/4" left index finger Lt. [ENTITY] of proximal phalanx.
4. Abrassion 1/4" x 1/10" 2nd inter phalangeal joint on dorsum of Rt. middle finger.
5. Abrassion 1/4" x 1/4" dorsum-1" above Rt. Wrist.
6. Abrassion 1/2" x 1/4" Rt. shoulder.
7. Abrassion 1/2" x 1/2" Rt. scapula- Medium forehead
8. C/o Pain Rt. Incisser All wound showed scab formation.
Of course, the learned Judge has not considered it a serious challenge to the prosecution as it was minor injuries on the person of the accused. However, we cannot shut our eyes towards these injuries and it is not ruled out by the learned Judge also that those injuries were not sustained by the appellant-accused at the time of the Incident. It is a specific plea of the appellant-accused that the deceased and P.W. 4, were aggressors and it indicate that there was a scuffle took place before he inflicted knife blow on the vital part of the deceased. It also reveals from the record that he cautioned the deceased and his friend P.W. 4 not to come to him that/he is having knife in his pocket. If he wanted to stop the deceased [ENTITY] and his friend P.W. 4 from coming near to him, he would have opened the knife immediately and stopped them. He would not have waited till the deceased fell down on the ground and compelled him, the appellant accused, to take out a knife from his pant pocket. This is the prosecution evidence on record. As we have appreciated the evidence of P.W. 2 [ENTITY], it clearly establishes that the appellant-accused has not inflicted a knife blow on the vital part of the deceased immediately on seeing him nor it was intended to cause knife injury to the deceased but suddenly, he might have on some apprehension of danger to his life, taken out a knife from his pant pocket. However, it is not the defence case that the deceased and P.W. 4 had any weapon in their hands. Further, it is not the defence case that P.W. 4 had attacked or assaulted the appellant-accused but it is the defence case that list blows were given on the appellant-accused by the deceased and P.W. 4 but there is no such medical evidence to that effect also. Only the injuries noted on the appellant-accused are abrasion. Under these circumstances, in our opinion, though the appellant-accused has right of private defence, he has acceded his right unintentionally. One knife blow unintended falls on the vital part of the body, in the spur of a moment, during scuffle, does not fall under Thirdly Part of [SECTION] but it falls under [SECTION] of [ACT] Having regard to the medical evidence, it was only one blow inflicted on the vital part of the deceased which resulted into homicidal death of the deceased and the appellant-accused is liable for the cause of injury and therefore, the offence falls u/[SECTION] [ACT] So far as the sentence is concerned, the maximum sentence provided is 10 years. The ends of justice will be met if the appellant-accused is sentenced of R.I. for 5 years and to pay a fine of Rs. 1,000/-.
In the result, the appeal is partly allowed. The conviction and sentence of the appellant-accused for offence punishable u/[SECTION] [ACT] is set aside. Instead, the appellant-accused is convicted for offence punishable u/[SECTION] [ACT] and is sentenced to suffer R.I. for five years and to pay a fine of Rs. 1,000/-, in default, to suffer R.I. for two months, the bail bond of the appellant-accused shall stand cancelled. The appellant-accused is directed to surrender to jail within fortnight from today.
11. Appeal partly allowed.