Milap Chand Jain, J.
1. The appellant Kishanlal aged about 16-17 years was convicted of the offence under Section 302 IPC and was sentenced to imprisonment for life by the learned Sessions Judge dated March 8, 1975.
2. The charge against the appellant was that he gave knife blow to the deceased Jagdish on 12-7-74 at about 4 a.m. near the Blooking window of Cinema house in Nohar which resulted in his death. The deceased himself was the informant on which case under Section 307 IPC was registered and after his death it was converted to Section 302 IPC. It was reported by the deceased in his reported Ex. 1 lodged at 10.40 P.M. that 1-1/2 months ago, he, Rajendra Kumar Bhat, Shanker Sevag had beaten Ram Kumar s/o Raghunath Chachan, resident of Nohar. 5-7 days thereafter, the driver of Raghunath Chachan and the sons of Raghunath Chachan namely, Kishan Vinod Kumar beat him on the bus stand in the night. On the following day, Yusuf Master got their dispute settled at the school. According to the deceased Jagdish, those persons continued to harbour grudge against him so on 12-7-1974 at 9p.m. when he was standing near the booking window of the cinema, Shanker and Rajendra Kumar were standing infront of the first gate and were talking to Kishanlal Chachan. Shankerlal then slapped Kishanlal and Shankerlal came running to him. Kishanlal accused was enraged and he took out a button knife from the pocket of his Pajama and opened it and inflicted a knife blow on the left side of the chest, thereafter the accused ran away. The occurrence was witnessed by Shankerlal and Rajendra Kumar. The injured Jagdish was removed to the hospital in a jeep by Hariya. His injuries were examined by Dr. Jagdish Prasad PW 10 who found one stab wound 4-1/2' x 1/2' x 2-1/2' deep oblique in the direction going to outer and deeper side. This injury was on the left side of the chest 2' from costal margin in the hip line. He gave out the duration as half hour. He advised to take the injured to Sriganganagar hospital and he was taken away from the hospital but his dead body was brought again to the hospital, Nohar as the injured succumbed to his injuries when he was being carried to Ganganagar hospital. Dr. Jagdish Prasad conducted the autopsy on the dead body on 13-7-1974 at 8.30 A.M. When abdomen was opened he found pool of blood with big clots more on left hypochondrium. There was through and through wound in the small intestine 1 ft. away from the gestro jejunal junction. Spleen was bigger in size. There was a big laceration on the enteromedial border with big clots all around. In his opinion the death was due to spleen laceration and through and through wound of small intestine with mesentry consequent internal haemorrhage and shock. According to him the injury was sufficient in the ordinary course of nature to cause death. Necessary investigation was conducted and on completion, charge-sheet was presented against the accused and the accused was charged under Section 302 IPC by the learned Sessions Judge, Ganganagar. The accused pleaded not guilty to the charge and claimed to be tried. At the trial prosecution examined in all 14 witnesses. The learned Sessions Judge found the accused guilty of the offence under Section 302 IPC consequently convicted and sentenced him as aforesaid.
3. We have heard Shri Bhagwati Prasad, learned Public Prosecutor for the State.
4. The only question which has been canvassed before us is that the learned Sessions Judge erred in holding that the offence under Section 302 IPC is made out against the accused. The learned Sessions Judge was in error in recording that the act of the accused is covered by clause thirdly of Section 300 It has been urged before us that the circumstances of the case, do not in any way indicate that the accused intended to cause the injury in question which he knew would be sufficient in the ordinary course of nature to cause death. The occurrence has taken place at the spur of moment. The slap of the accused enraged him as a result of which he took out his knife and caused a thrust blow on the deceased Jagdish. There was no repetition of any blow on his part. The accused was a student of Class IX at the time of the occurrence. The learned counsel for the appellant submits that it is inconceivable that the appellant would have intended to cause the death of victim or would have intended to cause such injury which may be likely to cause death nor it can be said that he intended to cause the particular injury which may be sufficient in the ordinary course of nature to cause death. Only this knowledge can be attributed to him that the injury which he is going to cause is likely to cause death.
5. We find some substance in the aforesaid submission of the learned counsel for the appellant. There does not appear to be any serious enmity between the appellant and the deceased. Knife was taken out by accused as Shankerlal had given a slap to the accused which enraged the accused as a result of which knife blow was inflicted. Premeditation in the circumstances is completely ruled out. Whatever took place, took place at the spur of the moment. The accused as well as the deceased and the other witnesses are all boys studying in VIIIth and IX classes. The trifle back ground gave rise to the occurrence. Viewed in the back ground, in our opinion, the offence cannot travel beyond 304 Part II, IPC. Only knowledge can be attributed to the appellant that death may be the likely result of his criminal act. In our opinion, looking to the circumstances of the case, the appellant cannot be held guilty for the offence under Section 302 IPC and he can only be held responsible for the offence under Section 304 Part II, IPC. Looking to the age of the appellant and the circumstances in which the occurrence had taken place, it will serve no useful purpose to send the accused behind the bar. The accused had already remained in custody for near about seven months. In our opinion, the ends of justice would be served in case the appellant is sentenced to the period of his custody.
6. Accordingly, the appeal is party allowed. The conviction and sentence of the appellant for the offence under Section 302 I.P.C. are set aside. He is however convicted of the offence under Section 304 Part II I.P.C. and he is sentenced to his period of custody suffered by him. He is already on bail so need not surrender. His bail bonds are discharged.