JUDGMENT Anand Prasad Sinha, J. Appellant No. 1 Geeta Yadav has been found guilty for the offence punishable under section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. Appellant No. 2 Baleshwar Yadav has been found guilty for the offence punishable under section 302 read with section 109 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, briefly stated, is that on 18.3.1975 at about 8.0 A.M. it was discovered that Sita Yadav, P.W. 1 had raised that Khesari crops was being uprooted by the appellant, Baleshwar Yadav. On hearing this, Ramawtar Yadav (P.W. 8) and his son Sita Ram who is the deceased arrived at the place of occurrence and the deceased tried to restrain the appellants from up-rooting the Khesari crops by catching hold of the Khesari. Appellant Baleshwar Yadav bad called appellant Geeta Yadav and thereafter Geeta Yadav had assaulted Sita Ram with a Banda on his head, upon which Sita Ram Yadav fell down. Thereafter he gave 2-3 Banda blows on the leg and back of Sitaram Yadav. He died thereafter. 3. Necessary information was given to Hassanpur police station at 3.30 P.M. and the Fardbeyan (Ex 6) of Ram Awtar (P.W. 8) was recorded. 4. It appears that Ram Ghulam had two sons Ram Awtar (P.W.8) and Geeta Yadav (appellant). Ram Awtar Yadav had two sons Sitaram (deceased) and one another. Appellant Baleshwar Yadav is the son of Geeta Yadav. 5. Mr. Rajeshwar Dayal, learned counsel appearing on behalf of appellants has submitted that the appellants had no intention to kill and the assault was without any such intention. That being so, in the facts and circumstances of the case, appellant Geeta Yadav cannot be said to be guilty under section 302 of the Indian Penal Code, but utmost fur the offence under section 304 Part II of the Indian Penal Code. Appellant Baleshwar Yadav had not committed any offence whatsoever at all. 6. Before taking up the discussions of the evidence on the points raised, it will be necessary to indicate the injuries found by Doctor Nashib lal Jha (P.W.7). The antemortem injuries found on the body of Sita Ram Yadav (deceased) are as follows :- I. Laceration 1" X 1/2" X scalp deep in the middle of the vault. II. 6. Before taking up the discussions of the evidence on the points raised, it will be necessary to indicate the injuries found by Doctor Nashib lal Jha (P.W.7). The antemortem injuries found on the body of Sita Ram Yadav (deceased) are as follows :- I. Laceration 1" X 1/2" X scalp deep in the middle of the vault. II. Transverse fracture involving left parietal and left temporal bones in its middle. III. There is clotted blood in the left temporal ancle. IV. Rupture of left middle meninjial artery in the cranial cavity resulting with huge accumulation of clotted blood in the extra dural space and pressing on the brain. The brain is pushed towards right side. V. Grazings on elbows and knees. VI. Penetrating wound 3/4" X 1/2" X bone deep on the left leg. From the Doctor's evidence, it appears that injury No. VI had been caused by pointed glass. That injury has been said to be penetrating. Injury Nos. 1 to 4 are as a result of injury No. I. The injuries on the leg and thigh are not stated to be such which were responsible for the death. 7. The evidence indicates that only one injury had been given on the head. Although there is an allegation that Geeta Yadav had repeated the blows, but it appears that the injuries were on the leg and thigh. Although injury No. VI has been caused by pointed glass, but there is no evidence that any such weapon had been used by the appellants. The injury on the head had not been repeated. The subsequent injuries, as claimed by the prosecution, were not on the vital parts of the body. 8. Therefore, from the evidence it appears that appellant Baleshwar Yadav had simply called Geeta Yadav. He did not utter any word indicating that Geeta should come with any particular type of weapon. Further Baleshwar had not spoken a single word indicating that he had asked Geeta Yadav to assault. Baleshwar Yadav did not show any physical Act, even immediately before or during the assault indicating that either he himself or he had asked Geeta to indulge into such overt Act, or conduce which may bring him under the purview of penal consequences. Further Baleshwar had not spoken a single word indicating that he had asked Geeta Yadav to assault. Baleshwar Yadav did not show any physical Act, even immediately before or during the assault indicating that either he himself or he had asked Geeta to indulge into such overt Act, or conduce which may bring him under the purview of penal consequences. Even after the assault on the head, Baleshwar had not asked Geeta Yadav to inflict more injury on the head and even the injuries inflicted on the non-vital part of the body was not at the instance of Baleshwar Yadav. The means of assault was not sharp cutting or sharp pointed weapon like Bhala, Garansa, dagger and the like, generally used for killing. Injury No. VI is neither consistent with the manner of assault nor weapon used by Geeta Yadav. Geeta had not uttered such word which might have reflected his mind that he had intention to kill. 9. Intention is an element which is perceivable by physical conduct of a wrong door, including, utterances, postures, gestures and the manner of assault. The manner of assault will include the intensity of assault and the type of weapon used. Although striker must know, the result of the strike but simply that conduct cannot be conclusive to reflect the intention of the striker. Human mind simplicitor is not an indication of intention as human mind is most un-predictable, neither certain nor specific like the laws of Science. Utterances either by the assailant or the abettor concentrating towards taking life runs parallel to an element of intention. Posture and gesture is not less important. Immediately before the commission of an offence or at the time, either of the two or anyone of them reflects abnormal mind (used in the sense that forgets legal obligation and regulation of conduct according to law). Hard and stiff conscience, irresistable impulses and extremely cruel hands expose gesture and posture at the time of commission of a crime. This phenomenon is distinguishable from normal mind. 10. The mental condition or a criminal is extremely relevant and important before and after the commission of any crime. Mental condition and psychology invariably is quite different than what has been at the time of commission of the offence. This phenomenon is distinguishable from normal mind. 10. The mental condition or a criminal is extremely relevant and important before and after the commission of any crime. Mental condition and psychology invariably is quite different than what has been at the time of commission of the offence. A wrong doer at the time of commission of a serious offence having been committed in a most dreadful manner armed with deadliest weapon either alone or in company with several such others, having a determined intention to commit such crime must exhibit that intention in the shape of utterances, postures and gestures. 11. In the instant case the element of intention is lacking. No utterances by either of the appellant, the strike on the head being not repeated, subsequent assault not on the vital part of the body and the weapon used being not very dangerous are relevant facts to indicate that there was no intention to take life. On the contrary, if there would have been any intention to kill there ought to have been such utterances and repeatition of the blows on the hand thus implementing the intention into physical act. 12. The sharp distinction between an offence under section 302 of the Indian Penal Code and 304 Part II of the Indian Penal Code is that dividing line which separates an intention not to kill than that to take life. On due consideration, I have no hesitation in saying that in the facts and circumstances of the case and on the evidence, it can safely be concluded that Geeta Yadav had no intention to kill although he might he having knowledge that the weapon used and the injuries inflicted might take life. Thus the offence having been committed by Geeta Yadav will be punishable under section 304 Part II and not under section 302 of the Indian Penal Code. 13. Appellant Baleshwar Yadav had not participated in the assault. Baleshwar had not come along with Geeta out of the house which would have indicated a common mind. He had not even asked Gita to assault. There is nothing to suggest that he had abetted the offence. There is no utterance and physical posture and gesture to suggest that he bad intended that the deceased be killed by Geeta Yadav. Under the circumstances, he cannot be said to be guilty of the charge attributed against him, 14. He had not even asked Gita to assault. There is nothing to suggest that he had abetted the offence. There is no utterance and physical posture and gesture to suggest that he bad intended that the deceased be killed by Geeta Yadav. Under the circumstances, he cannot be said to be guilty of the charge attributed against him, 14. With regard to the sentence, it appears that a sudden quarrel had taken place arising out of land dispute and that too in between the close relations. The weapon used was neither sharp cutting nor pointed one of very dangerous nature. The occurrence took place in the year 1975 and thus appellant Geeta Yadav had to undergo rigors of criminal prosecution for about nine years as the appeal is being disposed of today. He has already remained in jail for about six years and 4 months. Under all these circumstances, in my opinion, the ends of justice will be sufficiently met if he is sentenced to the period of imprisonment already undergone by him. Accordingly, he is sentenced to the period of imprisonment already undergone by him under section 304 Part II of the Indian Penal Code. He shall be released from the jail custody forthwith, if not required in any other case. 15. In the result, the appeal of Baleshwar Yadav is allowed and the judgment and order of conviction and sentence passed against him by the trial court is hereby set aside and he is acquitted. He will be discharged from the liability of bail bond forthwith. The appeal of appellant Geeta Yadav is hereby dismissed with the modification in the order of conviction and sentence as indicated above. I agree. Appeals allowed in part.