JUDGMENT P. N. Goel, J. 1. THE only point urged by the learned counsel for the appellant Udit, resident of village Mahuris, police station Ghorawal, district Mirzapur in this appeal is that the appellant was guilty of the offence punishable under Section 304 and not punishable under Section 302 of the Indian Penal Code. 2. THE occurrence undisputedly took place on 21-6-1973 at about 3.30 P. M. within the limits of the village of the appellant. At that time, Km. Surpatia (PW5), aged about 8 years,, daughter of deceased Deoki, was grazing her she-buffalo and Deoki was running a plough in his nearby field. Appellant Udit brought his two she-buffalos and a Padia for grazing. A she-buffalo of Udit began to quarrel with a she-buffalo of Km. Surpatia. Udit, perhaps, with the intention of separating the she-buffalos, began to give lathi blows to the she-buffalo of Km. Surpatia. Km. Surpatia called her father. Thereupon Deoki left the plough and came up and asked the appellant not to assault his she- buffalo any more. Thereupon the appellant remarked that he (Deoki) had taken away his honour and that, therefore, he would assault him. Some exchange of words perhaps took place. Udit appellant then assaulted Deoki who was unarmed with a lathi several times. On sustaining the injuries Deoki died on the spot. Tribeni, uncle of the deceased, (PW 2), got a report written out by Rajendra Nath Singh and lodged it at the police station, 2 miles away, at 5 P. M. Irshad Ali, A. S. I. (PW 7) held inquest on the dead body and investigated into the case. 3. ON 22-6-1973 at 7 A. M. Dr. K. P. Rai held auptosy on the dead body. Following ante mortem injuries were found : 4. INTERNAL examination revealed that occipital bone had fractured into several pieces and membranes were lacerated under injury no. 1. In the opinion of Dr. Rai, Deoki died of head in jury. In the estimate of Dr. Rai, Deoki was aged about 45 years. 5. UDIT appellant was aged about 32 years at the time of occurrence. The allegation of the prosecution was that Deoki had developed some illicit intimacy with the wife of the appellant about 4 months before the occurrence. It is, however, evident that the appellant had not assaulted Deoki on this account. Rai, Deoki was aged about 45 years. 5. UDIT appellant was aged about 32 years at the time of occurrence. The allegation of the prosecution was that Deoki had developed some illicit intimacy with the wife of the appellant about 4 months before the occurrence. It is, however, evident that the appellant had not assaulted Deoki on this account. The occurrence took place because the appellant was giving lathi blows to the she-buffalo of Deoki. 6. THE appellant did not admit that Deoki had developed illicit intimacy with his wife. He also did not admit that he had assaulted Deoki in the circumstance alleged by the prosecution. The prosecution examined 4 persons as eye-witnesses of the occurrence, namely, Tribeni, Basdeo, Ram Sewak and Km. Surpatia (PWs 2 to 5). The IV Additional Sessions Judge, Mirzapur believed the evidence of the prosecution witnesses and convicted the appellant for the offence punishable under Section 302 IPC. 7. LEARNED counsel for the parties have been heard and record has been gone through carefully. 8. IT is evident that Tribeni, Basdeo and Ram Sewak were attracted to the occurrence on the alarm raised by Km. Surpatia and her father Deoki deceased. Tribeni and Ram Sewak were throwing manure in the field of Neel Ratan at distance of 350 steps east of the place of occurrence. Basdeo was returning from Ghorawal market. This market is about 2 miles from the scene of occurrence. He was on the road running between Roberts Ganj and Ghorawal. The road is about 45 steps to the north of the place of occurrence. In the circumstances stated above Km. Surpatia is the best witness to depose about the manner of occurrence. Next best witness is Basdeo. 9. WE further find that Tribeni clearly stated before the Investigating Officer during investigation that when he, Ram Sewak and Basdeo reached the place of occurrence Deoki was lying on the ground and Udit was even then assaulting him. Ram Sewak clearly stated that he did not hear what talks transpired between the appellant and the deoeased because he was at a sufficiently long distance. He also stated before the Investigating Officer that by the time he reached the place of occurrence Deoki bad fallen on the ground. He further stated that after Deoki had fallen down on the ground Udit assaulted him with the Hoora i.e. butt end of his lathi. He also stated before the Investigating Officer that by the time he reached the place of occurrence Deoki bad fallen on the ground. He further stated that after Deoki had fallen down on the ground Udit assaulted him with the Hoora i.e. butt end of his lathi. This part of his statement is not borne out by the nature of injuries found on the person of the deceased. In these circumstances it would be more appropriate to determine the point involved on the basis of the statement of Km. Surpatiaj and Basdeo. 10. KM. Surpatia clearly stated that Udit appellant gave 2-3 Danda blows to her father when he (her father) was standing. These Danda blows fell on his head, both arms and both thighs. Thereafter her father fell down. Then the appellant gave 2-3 lathi blows mare. Her statement clearly shows that lathi injury on the head was not caused to Deoki after he had fallen down on the ground. Ram Sewak also stated that Udit appellant gave 3 lathi blows to Deoki when the latter was standing. As be was at a distance he could not see on which parts of the body of the deceased these three blows fell. Basdeo clearly stated that Udit gave first lathi blow on the left leg of Deoki, that he gave second lathi blow on his right shoulder, that he gave 3-4 lathi blows to Deoki while the latter was standing, that Deoki fell down on getting lathi blow on his head and that after Deoki had fallen down the appellant did not at all assault Deoki. 11. TRIBENI also stated that the first lathi blow fell on left leg (foot) and the second lathi blow fell on the right shoulder. 12. THE above statements of the prosecution witnesses clearly indicate two facts ; (i) the appellant first gave lathi blows on the non-vital parts of the body of Deoki, and (ii) no lathi blow was given to Deoki after he had fallen down. The first information report shows that Deoki left the plough and reached the field in which the she-buffaloes were entangled in a fight, that he 26-A.Cr.R. asked Udit not to assault his she-buffalo and that in the meantime some exchange of words took place. The first information report shows that Deoki left the plough and reached the field in which the she-buffaloes were entangled in a fight, that he 26-A.Cr.R. asked Udit not to assault his she-buffalo and that in the meantime some exchange of words took place. The exact words used in the report are : "Kisi men Dono ke beech bat barh gayi" These words clearly indicate that before the appellant resorted to the assault, there took place some exchange of words between the two. 13. THE statement of Tribeni shows that no body had actually seen illicit intimacy between the appellant's wife and Deoki. It is apparent from his statement that there was just a rumour in the village about their illicit intimacy. A panchayat was held in which Anant Pandey said that if anything was said in joke then it should not be understood that there was illicit intimacy between the two. He further said that no body had seen anything with his own eyes. It is thus evident that Udit appellant had no reason to fatally assault Deoki. 14. IN the above circumstances, it can easily be said that the appellant had not assaulted Deoki with the positives intention of causing his death or causing such bodily injury as was in all probability to cause his death. Nor it can be said that the appellant intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause his death. It is obvious that in the present case the act of assault by the appellant was not an imminently dangerous act. Therefore, any of the four clauses of Section 300 IPC is not attracted. The appellant first gave lathi blows on the non-vital parts of the body of Deoki. These blows were neither fatal, nor dangerous, nor grievous. IN the heat of the moment the appellant happened to give a lathi blow on the back part of the head of Deoki. From this it can be inferred that he caused such bodily injury as was likely to cause death. Therefore, we are of the opinion that the appellant cannot appropriately be convicted under Section 302 IPC and that, looking to the entire nature of the head injury he can be convicted under Section 304 Part I IPC. Thus the contention raised by the learned counsel for the appellant carries substance. Taking into consideration! Therefore, we are of the opinion that the appellant cannot appropriately be convicted under Section 302 IPC and that, looking to the entire nature of the head injury he can be convicted under Section 304 Part I IPC. Thus the contention raised by the learned counsel for the appellant carries substance. Taking into consideration! the reason for the assault and the manner of assault we are of the view that if the appellant is made to suffer 7 years' R.I., ends of justice would adequately meet. 15. IN the result, the appeal is dismissed with this modification that the conviction of Udit appellant under Section 302 IPC is set aside, and instead, he is convicted under Section 304 Part II IPC and sentenced to undergo seven years' RI. He is in jail. He shall serve out the sentence as modified by this court. Appeal dismissed.