Judgment BHATNAGAR, J. ( 1 ) THIS appeal is directed against the judgment passed by the learned Sessions Judge, Sri Ganganagar dated March 31, 1973 by which appellant Gurdayal Singh was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life. ( 2 ) SUCCINCTLY narrated the facts of the case giving rise to this appeal are as under: On May 31, 1972, Moti Singh (P. W. 5) had invited some of his relations and acquaintees for a dinner to celebrate the betrothal ceremony of his son Major Singh. Appellant Gurdayal Singh and co-accused Sadul Singh and Kaka Singh co. accused had attended the feast, and so also Chanan Singh (P. W. 1) Sajan Singh (P. W. 2), Babu Singh (P. W. 3) and Midha Singh (P. W. 4 ). There was hot altercation between Kaka Singh and Babu Singh at the dinner. Kah Singh threw away his food and hurled abuses to Babu Singh. Midha Singh (P. W. 4) pacified them and took the three accused to their houses. Babu Singh went to the house and Chanan Singh, who had already returned from the house of Moti Singh, and informed him about what had transpired between him and Kaka Singh. Chanan Singh was sitting outside his house along with his brother Sajan Singh and son Gurbhajan Singh. Soon after Gurdayal Singh, appellant armed with Gandasi and Sardul Singh and Kaka Singh armed with lathis went there. On seeing them coming Babu Singh immediately left the place and scaled the wall to enter his house. The accused inquired about Babu Singh and started abusing. Chanan Singh, Sajan Singh and Gurbhajan Singh tried to pacify them and took them out from the house. When they were taking them towards their houses the accused hurled abuses. When they had reached near the nohra of Inder Singh at about 9. 00 P. M. , Babu Singh and Midha Singh also reached there on hearing the noise. Gurdayal Singh hurled abuses to Gurbhajan Singh telling him that he was siding Babu Singh. Gurdayal Singh then inflicted Gandasi blow on the head of Gurbhajan Singh and exhorted Kaka Singh and Sardul Singh to assault him. Gurbhajan Singh fell down. When Babu Singh and Sajan Singh tried to intervene Sardul Singh inflicted lathi blow to Babu Singh. Gurdayal Singh hurled abuses to Gurbhajan Singh telling him that he was siding Babu Singh. Gurdayal Singh then inflicted Gandasi blow on the head of Gurbhajan Singh and exhorted Kaka Singh and Sardul Singh to assault him. Gurbhajan Singh fell down. When Babu Singh and Sajan Singh tried to intervene Sardul Singh inflicted lathi blow to Babu Singh. Gurdayal Singh inflicted Gandasi blow from its wrong side on the right thigh of Gurbhajan Singh. Chanan Singh raised an alarm that Gurbhajan Singh had been killed. The three accused ran away towards their houses. Gurbhajan Singh was bleeding from the head injury. He was taken to Ganganagar hospital in a jeep and admitted as an indoor patient. He succumbed to the injuries sustained by him at about 2. 00 P. M. in the same night. At 9. 00 A. M. on June 1, 1972 Chanan Singh went to Police Station Chunawad and lodged the report Ex. P. 1. A. S. I. Sadhu Singh (P. W. 6) went to Ganganagar hospital and prepared the injury report and the inquest memo. The Medical Jurist Dr. M. P. Agrawal (P. W. 7. 1 had examined Gurbhajan Singh for his injuries and noted following injuries on his person: 1. Incised wound anterio posterior with fracture of frontal bone suspected 2 X X bone deep on the front parietal region of the skull central area. 2. Bruise 1 X on the left lower eye brow ( 3 ) LACERATED wound (transverse) 11/2 X X muscle deep on the middle 1/3 of the posterior aspect of right thigh. 3. According to the Doctor injury No. 1 was grevious and caused with sharp weapon. The other two injuries were simple and caused by blunt object weapon. The injury report is Ex. P. 2. Gurbhajan Singh succumbed to the injuries sustained by him at 1. 45 A. M. in the night. The postmortem examination of the dead body was collected by the same Doctor, The postmortem examination report is Ex. P. 3. The cause of death revealed by the postmortem examination was head injuries with intracrunial haemorrhage and acute pulmonary codema. A. S. I. Sadhu Singh (P. W. 6) went to the site and prepared necessary memos and conducted investigation. The postmortem examination of the dead body was collected by the same Doctor, The postmortem examination report is Ex. P. 3. The cause of death revealed by the postmortem examination was head injuries with intracrunial haemorrhage and acute pulmonary codema. A. S. I. Sadhu Singh (P. W. 6) went to the site and prepared necessary memos and conducted investigation. ( 4 ) UPON completion of necessary investigation chargesheet against appellant Gurdayal Singh and co-accused Sardul Singh and Kaka Singh was submitted in the Court of Additional Munsif Magistrate Sri Ganganagar. The learned Magistrate after conducting the preliminary enquiry committed the accused to the Court of Sessions for their trial. The learned Sessions Judge charge- sheeted Gurdayal Singh for the offence under sections 302 and 302/34 Indian Penal Code and the co-accused Kaka Singh and Sardul Singh for the offence under sections 302 read with section 34 Indian Penal Code and recorded his plea. All the accused denied the indictments and claimed to be tried. Prosecution examined eight witnesses in all. The statement of the appellant under section 313 of the Code of Criminal Procedure was of denial. He however stated that he and Kaka Singh had gone to the house of Moti Singh to attend the dinner. That he was having a Gandasi and Kaka Singh was having a stick. There was a quarrel between Kaka Singh and Babu Singh. Five minutes prior to the incident Babu Singh left the house of Moti Singh. He and Kaka Singh had left the house for going to their houses situated at2o G. G. When they reached near the nohra of Inder Singh, Gurbhajan Singh, Sajan Singh and Babu Singh attacked them with lathis. Both of them caused injuries to the assailants in order to save themselves. He sustained injuries on his hand which were not examined though were seen by the persons at the time of his arrest. Sajan Singh had left the house of Moti Singh four minutes before he and Kaka Singh had left that place. One defence witness was examined to state that and Kaka Singh and Gurdayal Singh had gone to his house and informed him that there was hot altercation with Babu Singh at the feast and when they were returning home, they were attacked and injured. One defence witness was examined to state that and Kaka Singh and Gurdayal Singh had gone to his house and informed him that there was hot altercation with Babu Singh at the feast and when they were returning home, they were attacked and injured. The learned Sessions Judge placed reliance on the prosecution witnesses and held the appellant guilty for the offence under section 302 Indian Penal Code and sentenced his to imprisonment for life. The co-accused Kaka Singh and Sardul Singh were held guilty for the offence under section 323 Indian Penal Code for causing simple injuries to Babu Singh and Sajan Singh and were sentenced to a fine of Rs. 300/-, in default of payment of fine to undergo two months S. I. Gurdayal Singh alone had preferred this appeal in grievance to his conviction and sentence. 4. We heard Mr. R. N. Bishnoi, learned counsel for the appellant and Mr. M. C. Bhati learned Public Prosecutor for the State and carefully examined the record of the case. ( 5 ) AT the commencement of the arguments, Mr. Bishnoi submitted that he does not dispute the incident, nor the fact that Gurbhajan Singh sustained injuries at the hands of appellant Gurdayal Singh and succumbed to those injuries. He however submitted that the occurrence had not taken place as the prosecution alleges, rather was the result of exchange of abuses between the complainant party and the accused party and therefore, the case against Gurdayal Singh did not fall within the definition of murder. Mr. Bishnoi strongly contended that the intention of the assailant could not have been to cause any murder much less that of Gurbhajan Singh. To substantiate his contention Mr. Bishnoi drew our attention to the fact that even Babu Singh, with whom the quarrel of Kaka Singh had taken place was given only one lathi blow by Kaka Singh causing only one simple injury. The incident according to Mr. Bishnoi was the result of hot altercations between Chanan Singh (P. W. 1), Sadhu Singh, Gurbhajan Singh and the appellant and the co-accused without there being any. premeditation and therefore, Exception IV of Section 300 Indian Penal Code is attracted in the case. To strengthen his contention he referred to the case of Abdul Saleem v. State. In that case there was a wordy quarrel between the assailants and the victim over the pay of four months. premeditation and therefore, Exception IV of Section 300 Indian Penal Code is attracted in the case. To strengthen his contention he referred to the case of Abdul Saleem v. State. In that case there was a wordy quarrel between the assailants and the victim over the pay of four months. The knife inflicted by the accused in the abdomen proved sufficient to cause death of the victim. However, because of the quarrel taking place suddenly on a petty point without any premeditation, the accused was held guilty for the offence under section 304 Part-I and not under section 302 Indian Penal Code. ( 6 ) ANOTHER case referred to is Jagrup Singh v. The State of Haryana. In that case the gandbala blow by the accused on the vital part of the body of the victim proved fatal for the latter. Despite that in view of the fact that the assault was made in heat of moment without premeditation, it was held to be covered by Exception 4 of section 300 Indian Penal Code and therefore, Cl. , Thirdly of Section 300 Indian Penal Code was not held to be applicable. ( 7 ) IN the case of Randhir Singh v. State of Punjab the hot altercation was between the father of the accused and the deceased. The accused inflicted Kassi blow on the head of the deceased which proved fatal. As the accused had committed the crime in heat of passion without any premeditation, he was held guilty for the offence under section 304 Part-Il instead of Section 302 Indian Penal Code. ( 8 ) MR. Bishnoi next referred to the case of Jagtar Singh v. State of Punjab. In that case a sudden quarrel at the heat of the moment, arising out of trivial reason on chance meeting of parties, the accused caused single blow by knife on the chest of the victim causing his death. Intention to cause death or causing particular injury could not be imputed to the accused and therefore, he was not held guilty for murder and was convicted under Section 304 Part II, Indian Penal Code. ( 9 ) MR. Intention to cause death or causing particular injury could not be imputed to the accused and therefore, he was not held guilty for murder and was convicted under Section 304 Part II, Indian Penal Code. ( 9 ) MR. Bhati, the learned Public Prosecutor controverted these contentions and submitted that from the evidence on record it is amply proved that it was with premeditation to commit the crime that the appellant, armed with Gandasa and his two companions with lath is, had gone to the house of Chanansingh. According to the learned Public Prosecutor if Babu Singh (P. W. 3) would have been available there he could not have escaped the serious injuries and there was every possibility of his meeting death. That it was sheer chance that Babu Singh could manage to leave the place by scaling the wall and therefore intention of the appellant to cause the serious offence of murder is evident. ( 10 ) MR. Bhati further emphasized that the blow inflicted by Gurdayal Singh on the head of Gurbhajan Singh was with such a force that even a single blow was sufficient to end his life and as such it cannot be said to be a case where the incident might have occurred at the spur of the moment in the heat of passion without any premeditation. Mr. Bhati thus justified the conviction of the appellant. ( 11 ) HE referred to the cane of Gurdar Dusadh v. State of Bihar where the accused had given a lathi blow on the head of the deceased who fell down instantaneously. The injury being sufficient in the ordinary course of nature to cause death, the case was held to fall squarely within the ambit of Clause Thirdly of Section 300 and the accused was held guilty of the offence of murder. The case related to the occurrence in which 24 persons were alleged to have formed an unlawful assembly. Out of them six convicted persons hidden on the road caused injuries to the deceased and his father. There was neither any altercation or exchange of abuses between the deceased and the accused party. The assault was therefore, considered to rye with premeditation and the blow on the head of the deceased was not considered to be accidental. Out of them six convicted persons hidden on the road caused injuries to the deceased and his father. There was neither any altercation or exchange of abuses between the deceased and the accused party. The assault was therefore, considered to rye with premeditation and the blow on the head of the deceased was not considered to be accidental. ( 12 ) THE only question with which we are concerned in this appeal is whether the offence committed by the appellant is murder or whether it is culpable homicide not amounting to murder. In order to answer the question it would be essential to look into the circumstances which led to the incident along with the evidence of the eye - witnesses to the occurrence. ( 13 ) THE quarrel between Kaka Singh and Babu Singh at the house of Moti Singh was on a trival point. Kaka Singh was taking food while standing, Babu Singh asked him to sitdown and take food. Kaka Singh felt annoyed and threw his plate and went away from there without taking food. It is alleged that Kaka Singh abused Babu Singh. The prosecution case is that a little while after Babu Singh reaching the house of Chanan Singh and narrating the incident to him the three accused had gone there armed with the weapons stated earlier. ( 14 ) THE contention of Mr. Bishnoi is that it cannot be said to be a case of premeditation because there is no evidence to suggest that the accused were not having weapons when they had gone to the house of Moti Singh and brought them subsequently from their house. The argument does not appeal because prosecution has come with a specific case that after a little while of Babu Singh reaching the house of Chanan Singh the three accused went there armed. No suggestion has been made to any person attending the feast that these weapons especially the Gandasi were with the accused when they were at the house of Moti Singh. ( 15 ) THE next point to be determined is as to what was the intention of the appellants in going to the house of Chanan Singh. The intention is writ large on the record. Kaka Singh had felt annoyed with Babu Singh, the appellant and the two co. ( 15 ) THE next point to be determined is as to what was the intention of the appellants in going to the house of Chanan Singh. The intention is writ large on the record. Kaka Singh had felt annoyed with Babu Singh, the appellant and the two co. accused, on reaching the house of Chanan Singh, had enquired about Babu Singh who, had already left the place scaling the wall. Thus the intention was to give a beating to Babu Singh. We do not agree with the learned Public Prosecutor that, intention of Gurdayal Singh or the co-accused in going there was to commit the murder of Babu Singh. A person going with Gandasi can ordinarily be attributed with intention to cause any grevious or fatal injury to the person with whom he is annoyed but when no injury is caused to that person by that weapon intention is to be gathered from the surrounding circumstances. ( 16 ) IT is pertinent to note that on hearing the noise, Babu Singh and Moti Singh had reached near the nohra of Inder Singh where Chanan Singh, Sadhu Singh and Gurbhajan Singh on the one hand and the appellant and co-accused on the other were having hot altercation. Babu Singh (P. W. 3) has admitted that it was in his presence that Gurdayal Singh abused Gurbhajan Singh for siding Babu Singh and inflicted gandasi blow on his hand. It was at that time that Kaka Singh gave a lathi blow on the knee of the witness. Gurdayal Singh had not caused any injury to Babu Singh. Even Kaka Singh who was annoyed with Babu Singh because of the trival quarrel at the house of Moti Singh, did not cause any injury to any vital part of Babu Singh. ( 17 ) THE injury sustained by Babu Singh at the hands of Kaka Singh was simple in nature. This clearly shows that the intention of the accused party was only to give an ordinary beating to Babu Singh and not to cause serious or fatal injury to him. It was the head injury of Gurbhajan Singh which proved fatal for him. The pertinent question is whether the injury caused by Gurdayal Singh can be said to be in heat of passion without any intention to commit the murder. It was the head injury of Gurbhajan Singh which proved fatal for him. The pertinent question is whether the injury caused by Gurdayal Singh can be said to be in heat of passion without any intention to commit the murder. The important fact on the point is that Gurbhajan Singh was already there at the house of Chanan Singh when the three accused had gone there. None of them caused any injury to Chanan Singh, Sadhu Singh or Gurbhajan Singh rather had only inquired about Babu Singh. The above referred three persons had taken the accused out to take them to their houses. Till the time, they all reached near the nohra of Inder Singh, none of the accused caused any injury to any of the three above stated persons. Thus it can be inferred that near the nohra of Inder Singh something had happened which enraged Gurdayal Singh. The prosecution witnesses have tried to suppress some facts. Chanan Singh has only stated that Gurdayal Singh had abused Gurbhajan Singh for his siding (sic) Babu Singh. However Sajan Singhs statement throws some light on the point. He has stated that Gurdayal Singh abused Gurbhajan Singh and then Gurbhajan Singh and Chanan Singh also hurled abuses to the three accused because they were abusing them. For whatever reason the quarrel might have been, this much is clear that there was exchange of abuses between the three accused and Chanan Singh (P. W. 1), Gurbhajan Singh and Sajan Singh (P. W. 2 ). This being the state of affairs there is force in the argument of the learned counsel for the appellant that the accident had taken place in the heat of passion. On the verge of repetition, we may observe that Gurdayal Singhs going with a Gandasi to the house of Chanan Singh (P. W. 1) in the given circumstances of the case would not be sufficient to hold that there was premeditation to commit the murder of any body. We find strength in our view also from the nature of the second injury caused by Gurdayal Singh. The second blow was given from wrong side of the gandasi causing simple injury on the thigh of Gurbhajan Singh. If the intention of the appellant would have been to commit the murder of Gurbhajan Singh, he would not have used the blunt side of the weapon in causing second injury. The second blow was given from wrong side of the gandasi causing simple injury on the thigh of Gurbhajan Singh. If the intention of the appellant would have been to commit the murder of Gurbhajan Singh, he would not have used the blunt side of the weapon in causing second injury. The head injury of Gurbhajan Singh was, of course sufficient to cause death in the ordinary course of nature, according to the Doctor examining him, but in view of the circumstances gathered from the record it is evident that there was no premeditation to commit any serious crime. The incident relating to the deceased had taken place at the spur of moment in heat of passion and is covered by Exception IV of Section 300 Indian Penal Code Clause thirdly of that section is not applicable. ( 18 ) THE case against the appellant falls only under the ambit of Section 304 Part-I. ( 19 ) THE next question would be as to what punishment should be awarded to the appellant. ( 20 ) LEARNED counsel for the appellant submitted that the accused was arrested on June 2, 1972 and remained in jail up to August 7, 1978. The case relates to the year 1972 and therefore, the accused may not be sent behind the bars after the lapse of such a long time. ( 21 ) IN view of the facts and circumstances of the case and the lapse of time of about eleven years since the date of occurrence and the fact of the accused-appellant having already remained in custody for more than six years, we are of the opinion that ends of justice would meet if he is sentenced to the period he had remained in custody so far. ( 22 ) CONSEQUENTLY, the appeal is partly allowed. The conviction of the appellant under section 302 Indian Penal Code is altered to one under section 304 Part-i Indian Penal Code. The sentence for imprisonment for life is set aside and the appellant is sentenced to the period he had remained in custody so far for the offence under section 304 Part-I, Indian Penal Code. The appellant is on bail. He need not surrender to it. His bail bonds stand discharged. Appeal partly allowed.