JUDGMENT 1. Kishan Lal. Hazari and Laddu have filed this appeal against the judgment of the Additional Sessions Judge. Gangapur City dated 15th January, 1974 whereby accused Kishan Lal has been convicted under section 302 I.P.C. and accused Hazari and Laddu have been convicted under section 302 read with section 34 Indian Penal Code and each one of them was sentenced to imprisonment for life. 2. The prosecution case was that on 30th March, 1973 Kishan Lal, Hazari and Laddu were putting a fence on their Rijka field. Deceased Bheru thought that the accused-appellants were encroaching upon his field while putting a fence round their field and therefore Bheru entreated Kishan Lal not to do so This, it appears, enraged the accused party when Bheru came physically to stop Kishan Lal and his associates from putting fence. It is said that Kishan Lal who was armed with a Jelly dealt a blow on the head of deceased Bheru. According to the first information report. Hazari caught hold of Bheru and it was thereafter that Kishan Lal gave a `Jelly' blow. It is also mentioned in the first information report that after Bheru fell down, Laddu gave him an axe blow on the back of Bheru. Bheru after receiving the blows lost his consciousness. He was removed to the nearby Aushdhalaya. On the instructions of the incharge of the Aushdhalaya he was taken to the hospital, PW 15 Dr. G. H. Sexena found the following injuries on the person of Bheru the next morning I.e. 31-5-73. 1., Spelling 3"x 3" on the left temporal region above left ear. 2. Swelling 2' x 1" abdominal left eye brow. The next day Bheru died in the hospital and the post-mortem examination of his body was conducted by Dr. Sita Ram Gupta P. W. 14. According to the postmortem report Ex. P. 15 the following internal injuries were discovered on the person of the deceased : 1. Haemotoma in an area of 18 cm. x 12 cm. on the frontal region left temporal and parietal region and occipital region. 2. Fracture communited of left temporal parietal and frontal bones extending -to the base of the skull in middle cranial fossa. 3. Extra dural haemotoma in an area of 15 cm. x 9 cm. on left frontal temporal and parietal area. 4. Brain matter left frontal and parietal lobes compressed. 2. Fracture communited of left temporal parietal and frontal bones extending -to the base of the skull in middle cranial fossa. 3. Extra dural haemotoma in an area of 15 cm. x 9 cm. on left frontal temporal and parietal area. 4. Brain matter left frontal and parietal lobes compressed. Laceration in an area of 3cm x 2cm. on the left temporal region: 3. According to the opinion of the doctor the injuries sustained by decesaed Bheru an discovered by him on the basis of post-mortem examination, were sufficient in the ordinary course of nature to cause death. Challan was put up in the court of the Addl. Munsif Magistrate, Sawai Madhopur against all the three accused persons. Kishan Lal was charge sheeted under section 302 simpliciter whereas a charge was framed against accused Hazari and laddu under section 302 read with section 34 Indian Penal Code Both Hazari and Laddu denied the charge. But Kishan Lal admitted to have inflicted a `Jelly' blow on the head of the deceased because when he was putting a fence round his field, Bheru attacked him with a lathi since be was holding a `Jeily' in his hand he tried to protect him by using `Jelly' against Bheru which resulted in the injuries on the head of Bheru. 4. The prosecution examined as many as 15 witnesses out of whom PW 1 Mst, Motya, wife of deceased, PW 2 Kalyan and P.W. 5 another Kalyan were eye-witnesses. All these eye-witnesses tried to rope in all the three accused persons in the commission of the crime but it may be mentioned here that PW. 2 Kalyah when he was examined at the trial, he did not assign any overt act to Hazari and Laddu during his examination-in-chief but during the course of cross-examination he admitted to have stated in his police statement that Hazari had caught hold of Bheru before `Jelly' blow was dealt on his head by Kishan Lal and that after he fall down Laddu gave an axe blow on the back of the deceased. 5. The trial court believed the eye-witnesses and recorded the conviction of all the accused persons as referred to above. 6. Mr. 5. The trial court believed the eye-witnesses and recorded the conviction of all the accused persons as referred to above. 6. Mr. Chatterjee appearing on behalf of the appellants urged that the author of the injury on the head of deceased Bheru was undoubtedly Kishan Lal who has admitted the same in the statement under section 342 Cr. P. C. He further urged that both Hazari and Laddu have been falsely implicated in this case. According to his argument a quarrel started all of a sudden when Bheru tried to resist Kishan Lal to put in fence round his `Rijka' field and it was in that quarrel that spontaneous `Jelly' blow was given to Bheru which ultimately resulted in his death. He, therefore, urged that Hazari and Laddu have been wrongly implicated and the conviction of these two persons under section 302 read with section 34 Indian Penal Code cannot be sustained. As regards the case of Kishan Lal he argued that his case falls under section 304 part II and therefore, the sentence of imprisonment already undergone would meet the ends of justice. 7. Learned Government Advocate however opposed this appeal on the ground that the injuries sustained by Bheru on the vital part of his body were found sufficient in the ordinary course of nature to cause death and therefore, Kishan Lal who is undoubtedly author of that injury cannot escape punishment under section 302 Indian Penal Code As regards Hazari and Laddu it was contended that Hazari was armed with `Sabbal' and Laddu had an axe in his hand and therefore, it can easily be inferred that they had a common intention to belabour deceased if obstruction was put by him in putting up the fence round the `Rijka' field. 8. First of all we take the case of Hazari and Laddu. It is clear from the medical evidence that Bheru did not receive any other injury except the injury on his head for which the authorship has been assigned by the prosecution witnesses to Kishan Lal. Therefore, it is clear that the eye-witnesses PW. 1, PW. 2 and PW. 5 who are trying to involve Laddu by assigning him an overt act of giving an axe blow on the back of Bheru who speaking lie. There was no injury found on the back of Bheru and therefore, the statements of witnesses PW. 1, PW. Therefore, it is clear that the eye-witnesses PW. 1, PW. 2 and PW. 5 who are trying to involve Laddu by assigning him an overt act of giving an axe blow on the back of Bheru who speaking lie. There was no injury found on the back of Bheru and therefore, the statements of witnesses PW. 1, PW. 2 and PW. 5 cannot be accepted that he (Laddu) took any part in giving beating to Bheru. It is worthy of note that Kalyan PW. 2 when he came into witness box in his examination-in chief did not involve either Laddu or Hazari in this incident, by ascribing any overt act to any one of them. The way in which the incident had taken place resulting in one injury on the head of Bheru. clearly shows that the prosecution indulged in itself in giving a different shape to the story by assigning certain overt acts to Hazari and Laddu which in our opinion cannot be accepted. It is also correct that only one blow was given on the head of Bheru by Kishan Lal. If the intention of the accused party had been to kill Bheru and in order to achieve that aim, Hazari had caught hold of Bheru in order to facilitate the beating by Kishan Lal, then there was no reason why Kishan Lal felt satisfied only after giving one blow on the head of Bheru If the fight had taken place in the manner in which it was described by the eyewitnesses then Bheru must have suffered more than one injury But the number of the injury on the person of Bheru shows that in the heat of passion Kishan Lal could not put restraint on himself and he gave a Jelly' blow on the head of Bheru which ultimately found fatal and resulted in his death in the hospital The statements of PW. 1, PW. 2 and PW. 5 so far as they go to involve Hazari and Laddu cannot, therefore, be accepted by us, be carefully perused the judgment of the trial court and he find that the trial court did not apply its mind properly to all the facts and circumstances of this case to judge the involvement of Laddu and Hazari. 2 and PW. 5 so far as they go to involve Hazari and Laddu cannot, therefore, be accepted by us, be carefully perused the judgment of the trial court and he find that the trial court did not apply its mind properly to all the facts and circumstances of this case to judge the involvement of Laddu and Hazari. We therefore, feel that we cannot uphold the conviction of Laddu and Hazari under section 302 read with section 34 Indian Penal Code The result, therefore is that we set aside the conviction of Hazari and Laddu under section 302 Indian Penal Code read with section 34 and quash the sentence of life imprisonment awarded to each of them. 9. As regards the case of Kishan Lal, there cannot be any doubt that the author of the injury on the head of Bheru was none but Kishan Lal as admitted by him self in the statement recorded under section 342 Cr. P C. The only question that remains for our consideration is whether in the circumstances of the case as discussed above. Kishan Lal can be held guilty for committing murder of Bheru and can be convicted under section 302 Indian Penal Code or not ? 10. We have already given the dimensions of the injuries sustained by the deceased. The doctor is no doubt of opinion that the injury was sufficient in the ordinary course of nature to commit death but that factor alone could not bring the action of Kishan Lal under section 302 Indian Penal Code 11. It is clear from the testimony of eye-witnesses that the quarrel started between Kishan Lal and the deceased when Kishan Lal was trying to put a fence to his `Rijka' field. It appears that the deceased Bheru genuinely believed that -Kishan Lal by raising a fence was trying to encroach upon his land and therefore, be tried to intervene and it is at this stage that Kishan Lal dealt a `Jelly' blow on the head of Bheru. The number of blow given is only one which shows that Kishan Lal never intended to cause the death of Bheru The only object of giving a 'Jelly' blow on the head of Bheru was to avoid interference. It is true that the blow fell on the vital part of the body of Bheru. The number of blow given is only one which shows that Kishan Lal never intended to cause the death of Bheru The only object of giving a 'Jelly' blow on the head of Bheru was to avoid interference. It is true that the blow fell on the vital part of the body of Bheru. But this factor alone cannot leads us to infer that the intention of Kishan Lal was to kill Bheru In the heat of moment when the blow was dealt on the head of Bheru, Kishan Lal perhaps could not judge the result of his action. The force with which the blow was inflicted, could not be weighed by the assailant in golden scales and, therefore, sometimes it so happens that a person who intended a different thing causes a different result. In such circumstances we feel that the act of Kishan Lal fell within the purview of section 304 part II. We can safely attribute the injury to Kishan Lal but by inflicting a blow by the weapon like a `Jelly' he could at best have a knowledge that his action was likely to result in a serious consequence causing the death of the person who was the victim of his wrath. In such circumstances we feel that we cannot sustain conviction under section 302 simpliciter. We, therefore, acquit him of the charge under section 302 and instead convict him under section 304 Part II and pass a sentence of six years rigorous imprisonment. 12. We result is that the appeal of Kishan Lal is partly allowed. He is acquitted of the charge under section 302 Indian Penal Code and his sentence thereunder is quashed and instead he is convicted under section 304 Part II and sentenced to six years rigorous imprisonment. The appeal of Hazari and Laddu is allowed and they are acquitted of the charge under section 302 read with section 34 I.P.C, and their sentences are set aside. Hazari is in jail. He shall be released forthwith if not required in any other case. Laddu who was released on bail need not surrender to his bail bonds. The bail bonds of Laddu are quashed. *******