JUDGMENT P.N. Goel, J. 1. IN this appeal by Lachhia alias Laxmi Prasad aged about 31 years, son of Din Dayal, resident of village Andwara, police station Kulpahar, district Hamirpur against the order dated 13-11-1976 passed by the Sessions Judge, Hamirpur convicting and sentencing him under section 304 Part I IPC to 5 years R. I., the learned counsel for the appellant pressed 2 points. "(1) The offence fell within Part ii of section 304 IPC and not within Part I, and (2) Sentence of 5 years R. I. was severe. 2. FACTS of the case are more or less undisputed. The occurrence took place on 8-6-1975 at about 8 A. M. near the house of Ramai Barber in the village of the appellant. The appellant assaulted Baijnath, elder brother of Tulsi Das (PW 1) with a lathi. On account of the injuries sustained Baijnath died at 12.20 hours when he was being taken from the police station which is 9 miles away towards the hospital. First Information Report of the occurrence was lodged by Tulsi Das at 11 A. M. He did not see the occurrence. FACTS of the occurrence were told to him by Mahadeo and Dhanaiya (PWs 2 and 3). Mahadeo did not support the prosecution version. He was declared hostile by the prosecution. Dhanaiya faithfully supported the version of the prosecution. He used to cultivate the fields of Tulsi Das on Batai. He is an interested person in the sense that he had connections with the family of the deceassd. But he was not inimical to the appellant or members of his family from before the occurrence. There was also no enmity between the appellant and his family with the deceased or his family. The deceased had a monkey. In the morning on the date of occurrence his monkey bit the mother of the appellant. She gave abuses to Baijnath, who was sitting nearby. Baijnath in reply gave abuses to her The case of the prosecution is that the appellant and his father Din Dayal came up, giving abuses to Baijnath. Baijnath thereupon gave abuses to him. Din Dayal caught the hands of Baijnath. Lachhia gave a lathi blow on the head of Baijnath who fell down. Lachhia then gave 3-4 lathi blows to Baijnath. 3. Baijnath thereupon gave abuses to him. Din Dayal caught the hands of Baijnath. Lachhia gave a lathi blow on the head of Baijnath who fell down. Lachhia then gave 3-4 lathi blows to Baijnath. 3. ACCORDING to the appellant, he [reached the scene of occurrence on hearing noise, that he asked Baijnath as to why he allowed his monkey to bit his mother, that Baijnath gave 5-6 lathi blows to him, that he stopped the attacks of Baijnath on his lathi, that he wielded a lathi in self defence and that thereupon Baijnath fell down on stones. 4. THE appellant did not receive any injury at the hands of the deceased. The deceased was aged about (sic) years. It is rather surprising that the deceased could not cause any injury to the appellant. Baijnath had served out a sentence of 7 years imprisonment for arson and marpit, 2 years before the occurrence. He was of quarrelsome nature. His monkey had bitten other women and children (vide statement of Tulsi Das). Taking into consideration such a character of the deceased, it has to be repeated again that it is strange that he wielded lathi 5 or 6 times upon the appellant and could not cause a single injury to him. Therefore, statement of the appellant in this respect cannot be believed. 5. THE case set up by the prosecution stands proved by the testimony of Dhanaiya. 6. THE learned Sessions Judge has held that Exception I of section 300 I.P.C. was applicable because the appellant assaulted the deceased on account of grave and sudden provocation and that he was deprived of the power of self control. In this connection Exception IV of section 300 may also be taken into consideration. This section provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. It is evident that there was no previous enmity between the parties. It is further evident that the occurrence took place all of the sudden on a petty matter. Before the actual assault there was some wordy altercation between the parties. It is evident that there was no previous enmity between the parties. It is further evident that the occurrence took place all of the sudden on a petty matter. Before the actual assault there was some wordy altercation between the parties. In these circumstances it is obvious that it is not a case of murder and that it is a case of culpable homicide not amounting to murder. 7. THE question now is whether the case falls within Part I or Part II of section 304 I. P. C. On 9-6-1975 at 9 A. M. Dr. Shiva Dhin Tripathi (PW 6) conducted postmortem examination on the dead body of Baijnath and found following antemortem injuries : (1) Bruise 8 cm. x 6 cm. on right side of head, 6 cm. above and behind right ear. (2) Lacerated wound 2 cm. x 1 cm. x cartilage deep in pinna of right ear. (3) Swelling on whole of right side of face. (4) Bruise 7 cm. x 4 cm. over upper and lower lids of right eye. (5) Abrasion 2 cm. x 1 cm. on right shoulder. Internal examination revealed: (a) Haematoma under scalp on right side, (b) Comminuted fracture of right temporal and parietal bones, (c) Membranes lacerated, (d) Haemorrhage on right side of brain, (e) Fracture of right middle cranial fossa. 8. IT will be seen from the above that the right temporal and parietal bones were fractured into pieces and bone of the base had also fractured. It means that a very severe attack was made on the head of the deceased. Dr. Tripathi has stated that swelling of the whole of the right side of face was result of head injury no.1 and that abrasion (injury no. 5) could be result of a fall and that injury no. 2 could be result of a fall on wood. He further stated that injury no. 1 could be result of fall on a wooden peg but it was less probable. 9. THERE is nothing on record to show that the deceased had fallen on a piece of wood or on a hard substance on account of which he would have received Injury no. 2. 10. IN view of the above, it is evident that the deceased was assaulted with 3 blows. The first blow fell on the Head and broke the skull bones. He fell down. 2. 10. IN view of the above, it is evident that the deceased was assaulted with 3 blows. The first blow fell on the Head and broke the skull bones. He fell down. Another blow was aimed at his head but it fell upon the right ear. The third blow was aimed at his face. It fell on his right eye. It is thus evident that the assailant intended to cause injuries on or about the head of the deceased. The appellant did not cause any injury to the deceased with a sharp edged weapon. In the heat of the moment he wielded lathi which he brought from his house on hearing hue and cry. Lathi cannot necessarily be considered an imminently dangerous weapon. A fire-arm or a sharp edged weapon is considered an imminently dangerous weapon. Therefore, while causing blow on the head with a lathi, the appellant should have known that he was likely to cause the death of the deceased or he was likely to cause such injury which was likely to cause his death. Taking into consideration tie past relations between the parties and the manner of occurrence it cannot be said that the appellant had the intention of causing the death of the deceased or of causing such bodily injury as was likely to cause his death. In this aspect of the matter the case does not fall within Part I of section 304. The case undoubtedly falls within Part II of this section because the appellant should have known that his act was likely to cause death or such bodily injury as was likely to cause death. 11. NEXT question is what is the appropriate sentence to be awarded to the appellant. It is not a case where only one blow was given to the deceased. It is positive that the first blow was given on the head of the deceased. He fell down. The appellant did not feel satisfied. He further gave 2 blows on or about the head of the deceased. The skull bones were broken into pieces. It is thus evident that lathi blows were given with great force. In this circumstances sentence of 5 years imprisonment is fairly just and as such title sentence awarded by the learned Sessions Judge requires no interference. 12. He further gave 2 blows on or about the head of the deceased. The skull bones were broken into pieces. It is thus evident that lathi blows were given with great force. In this circumstances sentence of 5 years imprisonment is fairly just and as such title sentence awarded by the learned Sessions Judge requires no interference. 12. APPEAL is dismissed in this way that the conviction of the appellant will be under Part II of section 304 instead of its Part I and the sentence of 5 years R. I. awarded by the learned Sessions Judge is maintained. The appellant is on bail. He shall forthwith surrender otherwise he shall be arrested to serve out the sentence. --- Appeal dismissed.