S. S. SHARMA, J. ( 1 ) APPELLANT by this appeal challenges his conviction under Section 302 Indian Penal Code and sentence of imprisonment for life awarded to him by Additional Sessions Judge Khurai in Sessions Trial No. 145 of 1980 vide judgment dated 6. 12. 1980. ( 2 ) DECEASED Ramcharan was the brother of the appellant. Ramdayal (P. W. 1) is also their real brother. All the three brothers lived in the same house but in different portions. They were doing agriculture together but were separated in mess. Deceased Ramcharan was unmarried. The incident which resulted in the death of Ramcharan took place on 14. 6. 1980 at about 7 to 7. 30 p. m. in village Bamnora. ( 3 ) THE prosecution case briefly stated is that on 14. 6. 1980, deceased Ramcharan on his return in the evening from Sagar asked his brother appellant Durga prasad as to why the buffaloes bad by then not being tied. The appellant told him that the buffaloes had not returned back from the jungle. At this there was some exchange of abuses between the deceased and appellant Durgaprasad. Thereafter appellant Durgaprasad inflicted two blows by Sabbal (heavy iron rod ). As a result of those blows Ramcharan fell down. On knowing about the commotion Ramdayal (P. W. 1) and his wife Shyamrani Bai (P. W. 2) came out of the house. It is said that the appellant had further hit by stone on the bead of Ramcharan. Ramdayal then separated Durgaprasad. The head injuries on Ramcharan were then bleeding. Dinanath (P. W. 3) and Nonitram (P. W. 4) who live in the neighborhood of Ramcharan had also come there. Ramcharan was lifted from that place and brought in the Daklan but by then Ramcharan breathed his last. ( 4 ) RAMDAYAL (P. W. 1) lodged the first information report Ex. P11 in Police Station Bandri on the same night at about 2 a. m. The Sub-Inspector then reached the spot in the morning of 15. 6. 1980 and held an inquest over the dead body of Ramcharan. The dead body was thereafter forwarded to the hospital for post-mortem examination. The blood stained and unstained earth was seized vide memo Ex. PIS from a place which was at a distance of about 25 to 30 feet from the house of Ramcharan. 6. 1980 and held an inquest over the dead body of Ramcharan. The dead body was thereafter forwarded to the hospital for post-mortem examination. The blood stained and unstained earth was seized vide memo Ex. PIS from a place which was at a distance of about 25 to 30 feet from the house of Ramcharan. Even from the Dahlan the blood stained and unstained earth was seized. The Baniyan of appellant Durgaprasad on which blood stains were suspected was also seized vide memo Ex. P15. ( 5 ) DR. Shukla (P. W. 8) on 16. 6. 1980 had performed the post mortem examination over the dead body of Ramcharan. He found two lacerated wound on right side of head two inches above the ear over the parietal region, each of them being two inches long and wide. The underlying muscles were also lacerated and showed presence of clotted blood. There was no fracture of the skull bone but extradural haematoma was present. The brain was liquefied. According to him the injuries were ante mortem. The injuries had resulted in concussion, shock and hemorrhage. The injuries could be caused by hard and blunt object. On an examination of Sabbal article B he opined that the injuries as were found on Ramcbaran could be caused by either of the ends of the Sabbal. He further opined that the two injuries as were found on Ramcharan cumulatively as also individually were sufficient in the ordinary course of nature to cause death. ( 6 ) THE appellant in his examination denied to have assaulted his brother Ramcharan. ( 7 ) THE conviction of the appellant rests on the extra-judicial, confession made by the appellant before Dinanath (P. W. 3) and Nonitram (P. W. 4 ). Ramdayal (P. W. 1) and Syramrani Bai (P. W. 2) who as stated are closely related both to the appellant and the deceased did not support the prosecution case and so they were cross-examined by the public prosecutor with the permission of the learned trial judge. They were confronted with their respective statement to the police. ( 8 ) DINANATH (P. W. 3) in his examination stated that he had been informed by Harju and Ramdayal about the appellant and deceased having quarrelled. On a further query being made Ramdayal (P. W. 1) told this witness that Durgaprasad had assaulted Ramcharan by Sabbal. They were confronted with their respective statement to the police. ( 8 ) DINANATH (P. W. 3) in his examination stated that he had been informed by Harju and Ramdayal about the appellant and deceased having quarrelled. On a further query being made Ramdayal (P. W. 1) told this witness that Durgaprasad had assaulted Ramcharan by Sabbal. On that information Dinanath, Nonitram and other collected near the platform where Ramcharan was lying dead with bleeding injuries. Appellant Durgaprasad was also present at that time. This witness then asked the appellant as to what had happened. The appellant then told him that he assaulted Ramcharan by Sabbal. This witness was contradicted with his earlier statement Ex. D/2 recorded under section 164 Criminal Procedure Code wherein there is an omission of the word Sa b bal. ( 9 ) NONITRAM (P. W. 4) has also made a similar statement so far as the confessional statement having been made by appellant Durgaprasad is concerned. He has further stated that Durgaprasad was then holding a Sabbal in his hand. During his cross-examination the reason for the quarrel has also been brought out. ( 10 ) ALTHOUGH appellant in his examination alleged that his relations with Dinanath and Nonitram are strained, neither of these two witnesses was questioned about this allegation. In the evidence of these two witnesses nothing has been brought out to show or suggest that they had any reason whatsoever to falsely implicate the appellant. As a matter of fact even Ramdayal (P. W. 1) who is the real brother of the appellant admitted that be had gone to Dinanath Patel and had brought him to his house. He also admitted that he had stated to Dinanath Patel that appellant Durgaprasad and Ramcharan have quarreled with each other. In paragraph 9 of his statement Ramdayal even admitted that appellant Durga had stated before the villagers who had collected that he had assaulted Ramcharan. The further version of this witness also lends support to the evidence of Dinanath and Nonitram about the appellant having made a confessional statement. ( 11 ) WE are, therefore, satisfied that the appellant did make an extra-judicial confession about his having assaulted deceased Ramcharan. The further version of this witness also lends support to the evidence of Dinanath and Nonitram about the appellant having made a confessional statement. ( 11 ) WE are, therefore, satisfied that the appellant did make an extra-judicial confession about his having assaulted deceased Ramcharan. The Sabbal and the Baniyan seized from the appellant were found to be stained with blood but the report of the serologist has not been filed so as to find out whether the blood was of human origin. ( 12 ) THE main contention of the learned counsel for the appellant was that the offence against the appellant would in the circumstances be at most under Section 304 Part II Indian Penal Code and not that of murder. Dr. Shukla (P. W. 8) in his cross-examination has stated that if the injured would have received immediate treatment be would have possibly been saved. Admittedly there was no fracture of the skull. This indicates that, the blows must not have been inflicted with great force. It is, therefore, difficult to impute the requisite intention to the appellants so as to apply clause Thirdly of Section 300 Indian Penal Code by the application of which alone the appellant could be held guilty for the murder. There could be no dispute on the question that no other clause of Section 300 Indian Penal Code would be attracted in the instant case. The incident took place at the spur of the moment, however, appellant can safely be attributed with the knowledge that such injuries are likely to result in death. The appellant would, therefore, clearly be liable under section 304 Part II Indian Penal Code. ( 13 ) CONSEQUENTLY, this appeal is partly allowed. The conviction and sentence of the appellant under Section 302 Indian Penal Code are set aside and instead he is convicted under Section 304 Part II Indian Penal Code and sentenced to rigorous imprisonment for 5 (five) years. He would be entitled to a set off under Section 428 Criminal Procedure Code. Appeal partly allowed. .