JUDGMENT : Narasimham, C.J. - The Appellant who is an aboriginal Koya, aged twenty years was convicted u/s 302 Indian Penal Code for having caused the death of his co-villager Madkami Rama on 31-3-1961, and sentenced to imprisonment for life by the Sessions Judge of Jeypore. 2. It appears that on. 31-3-1961 the Appellant and his father Kamram Bira were somewhat annoyed with Madkami Dewa (p.w. 2) who is the son of the deceased and Madkami Kashi (p.w. 1) and some other persons for having stolen toddy from their tree and also for having stolen the bamboo tube in which toddy used to be kept. There was a quarrel between the parties in the afternoon of that day and again after night fall. It was alleged that p.ws. 1, 2, 3 and 4 went to the house of the Appellant's father Kamram Bira for the purpose of settling their dispute. The deceased Madkami Rama also went there. There was an altercation and in the course of that altercation the Appellant's father was alleged to have given a blow with a bow to p.ws. 1 and 2. In the meantime the deceased Madkami Rama, father of Madkami Dewa (p.w. 2) attempted to intervene and lift his son who was injured. Thereupon the Appellant brought a half burnt faggot lying nearby and after extinguishing the fire by rubbing it on the ground, gave a blow on the right side of the forehead of Madkami Rama who immediately fell down unconscious and died soon afterwards. 3. The case against the Appellant rests on the evidence of four eye-witnesses p.ws. 1, 2, 3 and 4 and the confessional statements made by the Appellant himself, first before the Magistrate who recorded it, then before the Committing Magistrate, and finally before the Sessions Judge. It is admitted by the Appellant and not challenged by his counsel that it was the blow on the forehead of the deceased given by the Appellant that brought about his death. The question therefore is whether the blow was given as alleged by the prosecution or else whether it was given in exercise of the right of private defence as suggested by counsel for the defence. The question therefore is whether the blow was given as alleged by the prosecution or else whether it was given in exercise of the right of private defence as suggested by counsel for the defence. In the earliest statement made by the Appellant before the Magistrate who recorded his confession on 5-4-1961 he stated that Rama (the deceased) was about to assault his father and thereupon he intervened and gave him the blow with the faggot. In his subsequent statement before the Committing Magistrate he said that he went to assault Madkami Dewa (p.w.2) and that the blow accidentally fell on the deceased Madkami Rama. The plea that he had put forward in his earlier statement, to the effect that Madkami Rama wanted to assault the Appellant's father was completely omitted on this occasion. In his statement before the Court of Session a third version was put forward to the effect that p.ws. 1 and 2 along with the deceased came to the house of the Appellant to assault his father and then attacked him with a bow. The Appellant alleged that then he caught hold of the hands of the deceased, that the deceased snatched his hands free and then gave him two slaps, and thereafter he (Appellant) picked up the faggot and gave him the blow on his forehead. Here it will be noticed that he did not put forward any plea based on his right of private defence but merely stated that the deceased gave him some slaps and then he gave him his blow with the faggot. These three contradictory versions given by the Appellant are themselves sufficient to show that the plea of right of private defence must fail. 4. As regards the four eye witnesses, p.ws. 1 and 2 may not be given much importance because their evidence is not clear as to whether they actually saw the Appellant giving the blow to the deceased Madkami Rama. They had themselves received injuries from the Appellants father immediately before and it is very likely that they did not clearly notice the giving of the blow to the deceased by the Appellant. But p.ws. 3 and 4 have given a consistent version by saving that after the assault on p.ws. They had themselves received injuries from the Appellants father immediately before and it is very likely that they did not clearly notice the giving of the blow to the deceased by the Appellant. But p.ws. 3 and 4 have given a consistent version by saving that after the assault on p.ws. 1 and 2 by the Appellant's father, the deceased tried to lift his son and was then given a blow in his forehead by the Appellant with a faggot. I am therefore satisfied that it was the Appellant who gave the blow and that there was no right of private defence. 5. The next question for consideration is whether the offence would come within Section 302 Indian Penal Code or whether it would amount to a lesser offence. The evidence of the doctor (p.w. 9) shows that there was only one abrasion 3 "broad on the right side of the face and forehead of the deceased. But on dissections the frontal bone was found fractured to an extent of 4" vertically upwards. The injury according to the doctor was ante-mortem and death was due to shock and hemorrhage resulting from the injuries. During his cross-examination P.W. 9 further admitted that an ordinary hard blow with M.O.I could cause such fracture but not a light blow. It may therefore be held that an ordinary hard blow was given by the Appellant on the forehead of the deceased. The main question for consideration, therefore, is whether by the giving of such blow he wanted to cause fracture of the frontal bone. Merely because the frontal bone was found to be fractured it does not necessarily follow that when the Appellant gave the blow he intended to cause such an injury. It may be that he knew that such an injury was likely to be caused but the further inference that he intended to cause such an injury cannot follow irresistibly in the absence of more concrete circumstances to establish the same. It may be that he knew that such an injury was likely to be caused but the further inference that he intended to cause such an injury cannot follow irresistibly in the absence of more concrete circumstances to establish the same. The fact that the Appellant as soon as be picked up the half burnt faggot took care to extinguish it by rubbing it 011 the ground and the fact that he dealt the blow with ordinary force would seem to indicate that he did not intend to fracture the skull of the victim, though it may be reasonably inferred that the Appellant knew that by giving such a blow on the forehead of a person with a weapon like M.O.I. he was likely to cause such an injury as may result in the death of the victim. This case would therefore more appropriately come within the scope of Part II of Section 304 Indian Penal Code than u/s 302 Indian Penal Code. Considering the age of the Appellant and the fact that his father's own conduct in giving blows to p.ws. 1 and 2 to some extent acted as an instigation for the Appellant himself to give such a blow, I do not think a severe sentence is called for. 6. I therefore alter the conviction of the Appellant u/s 302 Indian Penal Code to one u/s 304, Part II, Indian Penal Code and reduce the sentence passed on him to three years rigorous imprisonment. Subject to this modification in the sentence the appeal is dismissed. Das, J. 7. I agree. 8. Appeal dismissed-Sentence reduced. Final Result : Dismissed