JUDGMENT 1. - This appeal is directed against the judgment of the learned Sessions Judge, Alwar, dated-June 8,1979, where by the accused appellant was convicted under section 302 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 200/-. In default of payment of fine to undergo further rigorous imprisonment for two months. It was further observed that the accused has been in custody since July 15, 1977 and as such, was entitled to a set off under section 428, Cr.P.C. 1973. 2. Learned counsel for the accused-appellant has only challenged the conviction of the accused appellant under section 302 I.P.C. His contention is that there was a dispute regarding the agricultural holding and that the accused-appellant was a young men of 23 years on the date of the commission of the offence the accused appellant was employed in the Army and had come on the same day on leave from Army Headquarters at Baleshwar, Chandipur. It was further contended that even according to the prosecution evidence, the accused appellant was in Military uniform at the time of the commission of the offence. It was, therefore, contended that all that happened was at the spur of the moment, and that there was no occasion for any premeditation. It was also contended that deceased Ram Sahai was an old person of 60 years, when according to the medical evidence the bones has become brittle. It was also contended that the weapon of offence used is alleged to be a lathi and that, there was, according to the medical report, a fracture of the parietal bone, but there was no damage to the brain, and that the brain matter was not coming out. It was also contended that apart from this injury other injuries were on the non-vital part of the body. It was also contended that according to the medical report injuries Nos. 2, 3 and 4 could be caused by a fall on a hard substance like stone. It was also contended that the accused-appellant acted on the spur of the moment and did not act in a cruel manner; and as such, the case can at best fall under Part II of Section 304 I.P.C. and does not fall within the ambit of 302 I.P.C. with any stretch of imagination. 3. It was also contended that the accused-appellant acted on the spur of the moment and did not act in a cruel manner; and as such, the case can at best fall under Part II of Section 304 I.P.C. and does not fall within the ambit of 302 I.P.C. with any stretch of imagination. 3. The learned Public Prosecutor and the learned counsel for the complainant have opposed these contentions of the learned counsel for the accused-appellant. Their contention is that according to the medical report, deceased Ram Sahai received as many as 10 injuries and that the accused appellant should have known that he was causing these injuries with a lathi on an old man of 60 years whose bones had become brittle. It was also contended that it cannot be said that the assault on Ram Sahi was not premeditated. Under these circumstances, they have contended that the learned trial court was justified in convicting the accused-appellant under section 302 I.P.C. 4. The prosecution story, in brief, which is relevant for the disposal of the points raised by the learned counsel for the accused appellant is that Sunda Ram son of Dharm Chand lodged a report at 10-30 P.M. on March 4, 1977 that he and the deceased Ram Sahai are cultivators on the land of Smt. Chand Bai situated in village Khatiwas. It was further alleged that the land on which the incident took place had crop-standing. He alongwith Gauri Sahai Ahir was looking alter the field at about 3:30 P. M. accused Rohitas Singh came to the field and he started up-rooting the crops. On this, Ram Sahai went to the field and rebuked accused Rohitas Singh for having done so. On this Rohitas Singh started assaulting Ram Sahai with lathi strokes; as a result of which Ram Sahai fell down. When Sunda, Banwari and Umrao started towards the field, Rohitas ran away towards Village Manjuri. After some time Ram Sahai died on the spot. 5. On behalf of the prosecution 16 witnesses have been examined. The accused appellant has examined witnesses in his defence. 6. The respective contentions of the learned counsel for the parties have been considered and the record of the case has been carefully perused. After some time Ram Sahai died on the spot. 5. On behalf of the prosecution 16 witnesses have been examined. The accused appellant has examined witnesses in his defence. 6. The respective contentions of the learned counsel for the parties have been considered and the record of the case has been carefully perused. As the learned counsel for the accused-appellant has only contended that the offence falls within Part-II of Section 304, I.P.C. and not under section 302, I.P.C., the evidence on record has been examined only with regard to that aspect. The plea taken by the accused-appellant is of alibi. He led evidence to the effect that from the Army Headquarters, where he was posted, he was relieved on March 2, 1977 and could reach the village only in the early morning of March 5, 1977. This plea has been disbelieved by the learned trial Court. There is evidence on record that at the time when the accused-appellant went to the field where this incident took place the accused appellant was in the Military uniform. This factor clearly goes to show that the accused appellant did not get enough time at his house even to change the clothes. The various revenue records produced by the parties clearly go to show that there has been long standing dispute regarding the Khatedari right and the possession of the land in dispute. The contention of Hazari Singh, the father of the accused-appellant was that the land which was allotted to Smt. Chand Bai was agricultural holding in the Khatedari of Hazari Singh. Reliance has been placed on Ex. D. 1, Ex. D. 2 and Ex. D. 5 The prosecution witnesses have also admitted that in the south, the field of Hazari Singh adjoins the agricultural holding alleged to be in possession of Smt. Chand Bai. Through Ex. D. 5, the S.D O concerned has recommended to the Collector, Alwar that the allotment order issued in favour of Smt. Chand Bai should be set aside as the alternative plot or land has been allotted to her. There were proceedings under lection 143 Cr.P.C. also in which the lands were attached. Thus, there is simple evidence on record which leads to the irresistible conclusion that there exists long, standing dispute regarding the disputed land and the agricultural holdings. There were proceedings under lection 143 Cr.P.C. also in which the lands were attached. Thus, there is simple evidence on record which leads to the irresistible conclusion that there exists long, standing dispute regarding the disputed land and the agricultural holdings. It appears that when the accused-appellant came on leave from Military Headquarters, he must have learnt about the troubles and the dispute regarding the agricultural holding and he went to the spot. According to the prosecution story the accused appellant had reached the village in the morning of March 4, 1977. The incident has taken place in the afternoon of March 4, 1977. The allegation against accused appellant is that he started uprooting the gram crops and when resisted by Ram Sahai, he dealt lathi blows on him. 7. The main question for consideration is whether the accused appellant , acted suddenly or it was a premeditation effort. When the accused appellant went to the field and started up rooting the gram crop three persons were sitting on the well. Out of these three, two persons were the cultivators of Mst. Chand Bai. It was only Ram Sahai who came to the field and resisted what the accused appellant was doing. The other cultivator Sunda Ram could also come. Under these circumstances, cannot be said that the accused appellant came to the site with pre-medication to cause the murder of Ram Sahai, as Ram Sahai and Sunda were both cultivators of Chand Bai, even Sunda could have come and resisted the operation of the accused-appellant. The coming of the Ram Sahai was only a matter of chance which excludes premeditation on the part of the accused-appellant. 8. The other argument advanced on behalf of the accused appellant is that accused appellant went to the field while armed with a lathi. This is the matter of common experience that persons in the village move with a lathi and the only fact that he was armed with a lathi cannot lead to irresistible conclusion that it was a part of premeditation for assaulting Ram Sahai. 9. This is the matter of common experience that persons in the village move with a lathi and the only fact that he was armed with a lathi cannot lead to irresistible conclusion that it was a part of premeditation for assaulting Ram Sahai. 9. Looking to the nature of injuries, the age of the accused appellant and the age of the deceased, we are inclined to hold that the offence committed by the accused appellant dearly falls within Part-II of Section 304 I.P.C. and the accused acted on the spur of the moment without any premeditation and did not take any undue advantage , and did not act in a cruel manner. The disputes over agricultural holdings in villages are a common factor. 10. For the reasons stated above, we hereby partly allow the appeal. The conviction and sentence of the accused-appellant under section 302, I.P.C. is hereby set aside, and he is, in turn, convicted under Part-II of Section 304, I.P.C. Looking to the facts and circumstances of the case, we feel that the ends of justice would be met by sentencing the accused appellant to 7 years rigorous imprisonment. The accused appellant was taken into custody on July 15, 1977, and since then he is in custody. The accused appellant would be entitled to set off under section 423 Cr.P.C. of the period for the which he has remained in custody when the matter was under investigation, enquiry and trial.Appeal partly allowed. *******