JUDGMENT 1. - This appeal has been filed against the judgment dated March 27, 1980 passed by the learned Additional Sessions Judge, No. 1, Jodhpur. Appellant Mohanlal was tried for the offences under sections 302 and 447 IPC and co-accused Annaram and Sonaram were tried for the offences under sections 447 and 323 IPC. Appellant Mohanlal was sentenced to imprisonment for life under section 302 IPC and a fine of Rs. 100/-, in default of payment of fine to undergo one months S.T. and one months S.I. for the offence under section 447 IPC. Anna Ram was sentenced to six months S.T. for the offence under section 323 IPC and on months SI for the offence under section 447 IPC. Sona Ram was also held guilty for the offences under section 447 and 323 IPC but in view of his being below 21 years of age, he was given benefit under the Probation of Offenders Act and was released after admonition. Out of there convicts, only Mohan lal has preferred appeal. 2. Anna Ram and Pancha Ram (PW 5) were real brothers. There was some dispute regarding the demarcation of field. The prosecution case is that on July 25, 1979 Mohan lal appellant armed with an axe and Anna Ram and Sohan Ram co-accused armed with lathies went to the field and at the place of occurrence started making heaps of earth (Dhigaliya). Pancha Ram (PW 5) objected. Anna Ram and Sohan Ram inflicted lathies blows to Pancha Ram (PW 5). Pancharam's ten years old daughter Loongli tried to rescue her father. Annaram and Sohanram tried to remove her from there with pushes of lathies but the girl did not move from near the father. It is alleged that Mohanlal inflicted axe blow on the back side of the neck of Loongli which resulted in her death. Pancha Ram (PW 5) lodged the information at Police Station-Lohawat. Station House Officer Murlidhar (PW15) registered the case and went to the site and conducted necessary investigation. The postmortem examination of the dead body of Loongli was conducted by Dr. Kedarnath (PW 10), Medical Officer, In charge G.M. Hospital, Phalodi. The Doctor noted one abrasion on left scapula and one incised wound on the posterior surface of neck which caused first cervical vertabra exposed. The postmortem examination of the dead body of Loongli was conducted by Dr. Kedarnath (PW 10), Medical Officer, In charge G.M. Hospital, Phalodi. The Doctor noted one abrasion on left scapula and one incised wound on the posterior surface of neck which caused first cervical vertabra exposed. According to the Doctor Loongli died due to shock caused by spinal cord injury on the posterior surface of neck. 3. Upon completion of necessary investigation, charge sheet against the appellant and the co-accused was filed in the Court of Munsif and Judicial Magistrate, Phalodi. The learned Magistrate committed the applicant to the Court of Sessions Judge, Jodhpur. The learned Sessions Judge charge sheeted the accused for the aforesaid offences. Prosecution examined fifteen witnesses in all to substantiate its case. All the three accused denied the allegations levelled against them in their statement under section 3i3 of the Code of Criminal Procedure. One defence witness was examined. The learned trial Judge placed reliance on the direct evidence of Murlidhar (PW 15) and passed the judgment under appeal. Mohanlal has come in appeal before this Court. 4. At the commencement of the arguments Mr. K.C.Gaur, learned counsel for the appellant submitted that be does not want to challenge the findings of the trial Court on merits, rather wants to argue the case regarding the nature of the offence and the punishment. 5. Mr. Gaur strenuously contended that there could not be any intention of the appellant to commit the murder of the girl Loongli and the injury might have been sustained by her accidently. It has been emphasised by Mr. Gaur that she sustained only one serious injury on the posterior surface of neck which caused first cervical vertebra exposed and therefore, the prosecution case not travel beyond the purview of s. 304 Part-II IPC. To substantiate his contention, Mr. Gaur placed reliance on certain authorities which we would presently discuss. 6. Upon careful perusal of the record of the case and the judgment of the trial Court, we are satisfied that the prosecution case regarding Loongli meeting her death at the hands of Mohanlai appellant by the axe injury sustained by her on neck stands duly established. 7. The pertinent question calling for answer in the case is whether the conviction of the appellant for the offence of murder is justified. 7. The pertinent question calling for answer in the case is whether the conviction of the appellant for the offence of murder is justified. Certain salient facts for the case are to be taken note of in order to arrive at a conclusion as to whether the conviction of the appellant for the charge under section 302 IPC is to be maintained or is to be altered to one under section 304 IPC. 8. The accused and the complainant Pancha Ram (PW 5) were close relatives. Anna Ram and Pancha Ram are real brothers. Sona Ram and Mohanlal are sons of Anna Ram. The immediate cause of dispute was the complainant and the accused party having hot altercation regarding the ownership of the particular part of the ancestral field. Both of them claimed the field to be theirs. When Pancha Ram asked the accused party not to damage the bajri' crop by making 'dhigliyan' the accused party insisted upon doing so and got annoyed. It was in that circumstance that Anna Ram and Sona Ram are said to have caused simple injuries to Pancha Ram (PW 5) with lathies. No axe injury was caused to Pancha Ram. The prosecution case is that when Loongli in order to save her father stooped down upon him, Sonaram and Anna Ram wanted her to be away.They did not cause any injury to her rather tried to push her away with lathies. It was at that juncture of time that the appellant Mohanlal inflicted axe blow to the unfortunate girl. In a charge of murder intention of the appellant to commit the murder of the victim, the nature of the injuries and the circumstances in which it is caused carry importance. 9. The neck injury sustained by Loongli in the opinion of the Doctor was sufficient to cause death in the ordinary course of nature. The question will then arise as to whether in every case where the injuries according to the medical opinion are sufficient in the ordinary course of nature to cause death would mean the intention of the assailant to commit murder. As we will discuss presently it is not so in every case. The question will then arise as to whether in every case where the injuries according to the medical opinion are sufficient in the ordinary course of nature to cause death would mean the intention of the assailant to commit murder. As we will discuss presently it is not so in every case. The surrounding circumstances of the incident the relations between the parties and the intention of the assailant to commit the crime are relevant factors to be kept in mind by the Court while deciding cases of this type. There may be cases in which the weapon used lands on some vital or delicate organ of the body and despite there being no intention on the part of the assailant to cause a particular injury at a particular place, the blow accidently falls on such a part with the consequences of the victim meeting his death. In such a case, the Court is to minutely scrutinise the evidence and take note of the circumstances in which the blow or the blows as the case may be were inflicted. 10. The question as to under what section the case of the appellant fell in a case when the appellant caused injury on the neck with a 'dagger' in a sudden quarrel came before their Lordships of the Supreme Court in the case of Shanker @ Kallu v. State of Madhya Pradesh, 1979 SCC (Cr.) 632 . Their Lordships were pleased to hold that the charge of murder was not made out and the appellant was held guilty for the offence under section 304 Part-II IPC and sentenced to seven years R.I. for that offence. 11. In the case of Dulichand v. The State of Rajasthan, 1984 Cr.L.R. (Raj.) 187 the accused went to bring his wife back to his roof without any intention to cause the murder any body. However when there was a confusion the deceased happened to come there and was given a blow on the back with `Gupti' by the accused. According to their Lordships, the accused did not intended to inflict the particular injury and therefore, Cl. IIIrdly of Section 300 IPC was not held to be applicable in the case. The conviction of the appellant was altered from Section 302 IPC to Section 304 Part-11 IPC and sentenced of seven years R.I. was imposed. 12. According to their Lordships, the accused did not intended to inflict the particular injury and therefore, Cl. IIIrdly of Section 300 IPC was not held to be applicable in the case. The conviction of the appellant was altered from Section 302 IPC to Section 304 Part-11 IPC and sentenced of seven years R.I. was imposed. 12. In the case of Tholan v. State of Tamil Nadu, 1984 SCC (Cr.) 164 a single knife blow, ordinarily sufficient to cause death was inflicted on chest of the deceased. There was no previous dispute and the occurrence was wholly accidental. Even if exception-1 of Section 300 was not held to be attracted in the case, still in the absence of requisite intention for murder under section 300 IPC the conviction of the appellant for the offence under section 302 IPC was not considered to be proper and he was sentenced to five years R I for the offence under section 304 Part-II IPC. 13. Keeping in view the principles enunciated in the above referred cases, when we turn to the case on hand, we are inclined to hold that the case of the appellant does not fall within the ambit of Section 302 IPC. It is not a case in which the assailant might have any intention to commit the murder of Pancha Ram (PW 5) and accidently the below might have landed on the neck of Loongli. As is evident from the evidence, despite Mohanlal being armed with an axe & having opportunity to cause axe injury to Pancha Ram, he had not done so. The injuries caused to Pancha Ram (PW 5) were that of lathies and simple in nature. There could not be any intention of any of the assailants to cause any injury, what to talk of fatal injury to that innocent girl of tender age. We feel strengthened in our view by the fact that when Anna Ram and Sona Ram tried to remove the girl from over her father they did not even cause any simple injury to her. It is not a case of pre-medition on the part of the appellant to cause any injury to Loongli. It was only at the spur of the moment that Mohanlal caused neck injury with axe to the deceased. It is not a case of pre-medition on the part of the appellant to cause any injury to Loongli. It was only at the spur of the moment that Mohanlal caused neck injury with axe to the deceased. In such circumstances, we have no hesitation to say that the element of intention to cause murder or to cause such injuries likely to cause death is missing in the case. All that can be said is that Mohanlal while yielding a weapon like axe and causing injuries on the posterior part of the neck of Loongli must have knowledge that the injury so caused was likely to causes death of the victim. The case of Mohanlal, therefore, falls in Part-II of Section 304 IPC and not under section 302 IPC. 14. The next question arising for determination is as to what would be the adequate punishment to be awarded to the appellant. Looking to weapon used, the nature of the injury and the fact that a girl of tender age met her death because of the act of the appellant, we consider seven years R.I. to be the adequate sentence to be awarded to the appellant.So far as the offence under section 447 IPC is concerned, the conviction and the sentence stands justified and is maintained 15. Consequently, the appeal is partly allowed. The conviction for the offence u/s 302 IPC is converted to one under section 304 Part IPC. The conviction and sentence for the offence under section 302 IPC and the sentence awarded on that count are set aside. The appellant is sentenced to seven years R.I. for the offence under section 304 Part-II IPC. The conviction and sentence for the offence under section 447 IPC passed by the trial Court are maintained.Appeal partly allowed. *******