JUDGMENT 1. 1. This appeal is directed against the judgment dated 20th October, 1981 passed by the learned Sessions Judge, Jhunjhnu in Sessions case No.44/81. The prosecution story of the case is that on 21st July, 1981 at 5. P.M. in village Desusar-ki-Dhani. the incident took place and deceased Mahadeo Ram was given Fatal blow by the appellant Moti Ram. FIR (Ex. P. 1) of the incident was registered at about 9.15 p.m. on the same day. The FIR was also forward to the Munsif and Judicial Magistrate, Jhunjhunu concerned on 22nd July, 1981. The prosecution story given in FIR is that on 21.7.81 while the deceased Mahadeo and his son PW 1 Jamna Ram were coming to then village, in the way, accused Moti Ram, Teeju wife of Moti Ram and Bajaran Lal attacked Mahadev with Gandasi and Lathies. On receipt of injuries Mahadeo fell down. Mahadeo was shifted to the hospital where he died on the next day. Initially the case was registered under Section 307, 324 and 323 IPC but later on it was converted under Section 302 IPC. 2. On behalf of the prosecution, PW 1 Janina Ram, PW 2 Banwari PW.3 Balbir Singh and PW.4 Mohan Lal were produced as eye witnesses to support the case of the prosecution. PW 6 Doctor Nazir Hussain was produced by the prosecution to prove the injury-reports and the postmortem report. PW.6 Doctor Nazir Hussain has also proved the injury report (Ex D11) of Smt. Teeja wife of Moti appellant. PW.8 Heeralal is the investigating officer who had prepared the site plan and recovered a Gandasi. On behalf of the defence, to prove that stab injury No.1 of (Ex.P10) cannot be opined to have been caused by sharp edged weapon and that there was no cut of bone. 3. The learned Sessions Judge after discussing the evidence produced during the trial, convicted the accused appellant under Section 302 IPC and sentenced him to suffer life imprisonment. 4. The learned counsel for the appellant has assailed the judgment of the learned Sessions Judge and submitted that the case is of acquittal and that the cars does not fall within the purview of Section 302 IPC. 5. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge and submitted that the appeal should be dismissed. 6. The learned counsel for the appellant has assailed the judgment of the learned Sessions Judge and submitted that the case is of acquittal and that the cars does not fall within the purview of Section 302 IPC. 5. The learned Public Prosecutor has supported the judgment of the learned Sessions Judge and submitted that the appeal should be dismissed. 6. From the perusal of Ex P.1, the FIR, it is not clear that what Was the immediate cause of the incident. PW I Jamna Ram has appeared in the witness box and has submitted that there was a dispute between one Chunna Ram and Moti Ram appellant and both of them approached his father Mahadeo Ram, no* deceased, for the purpose of settlement. Mahadeo Ram advised them to bring the patwari to divide the land and each party to share half of the expenses to be incurred and the matter may be settled. The demand of half of the expenses annoyed the appellant Moti Ram. It is an admitted position as stated by PW 1 lamina Ram, that this had taken place about 20 days before the incident. Thus, prior to the incident, no untoward incident took place as per the prosecution case itself. The accused as well,as Jamna Ram are both neighbours to the appellant and the motive suggested by PW.1 even be existed, could not be said the motive to commit the murder. Under Section 313 Cr.PC accused has been examined. Appellant Moti Ram has stated that a quarrel took place between children, the deceased came with a lathi and inflicted a lathi blow on the persons of his wife Mst. Teeju. Mst. Teeju was also a co-accused in the case but she has been acquitted. The injuries sustained by Mst. Teeju are as below: 1. Abrasion 1/4" x 1/10" on left ear. 2. Abrasion 1/4" x 1/4" on the bridge of nose. 3. Abrasion 1/2" x 1/4" on the back side of left wrist joint. 7. As far as the two versions are concerned, namely, version relating to the demand of half of the fees of the Patwari and the version of accused that some altercation had took place between the children and then the quarrel took place. 3. Abrasion 1/2" x 1/4" on the back side of left wrist joint. 7. As far as the two versions are concerned, namely, version relating to the demand of half of the fees of the Patwari and the version of accused that some altercation had took place between the children and then the quarrel took place. We are of the opinion that the version given by the prosecution cannot be accepted relating to the motive for the commission of the crime, The demand of share of fees of the patwari before 20 or 25 days of the occurrence, by way of arbitration, cannot be said to be an immediate motive for the commission of the crime and we are of the view that there was no motive for the commission of the crime. 8. As far as the injury No. 1, which was sustained by the deceased Mahadeo, is concerned, it can safely be stated that the appellant was the author of the same. Even the appellant has admitted that he had blown lathi on the deceased PW 1 Jamna Ram and PW 2 Banwari Lal has also stated that the blow on the deceased was inflicted by the appellant. Now the question arise to determine the nature of the injury. Mr. Tibrewal. appearing on behalf of the appellant, has submitted that in an incised wound injury there should be a cut in the fracture of the bone and the Doctor has not recorded either in injury report or in the post mortem report that there was any cut on the bone of the deceased. He pointed out that one can commit a mistake to give opinion on the basis of X-ray Report but he cannot commit a mistake especially at the time of post mortem examination which is conducted by the Doctor himself and where the fracture caused by sharp weapon are of different nature, in the instant case, the said injury cannot be said to have been caused by sharp weapon as the doctor has not mentioned as such in the post mortem report. 9. Second argument of Mr. Tibrewal is that the burnt cloth was thrust in the wound, as such it was not possible to say that the margins of the wound were regular or irregular. He further submits that the testimony of Doctor PW 6, cannot be relied upon. 9. Second argument of Mr. Tibrewal is that the burnt cloth was thrust in the wound, as such it was not possible to say that the margins of the wound were regular or irregular. He further submits that the testimony of Doctor PW 6, cannot be relied upon. Looking to the facts of this case, especially in the matter that whether it was an incised wound or lacerated wound, the opinion of doctor B.P. Jangid (DW 1) who is Deputy Chief Medical Officer and who is also expertised the injury which was sustained by the deceased may be caused by blunt weapon. He further submits that only PW I Jamna Ram has stated that the appellant inflicted a Gandasi blow on the head of the deceased. PW Banwari, another eye witness as has stated that the appellant was, having a Danda (Blunt weapon) the remaining two eye witnesses, namely PW 3 and PW 4 have not been relied upon the trial court. PW I Jamna Ram is the son of the deceased, as such, is an interested witness. Hence, Mr. Tibrewal submits that when two views are possible about the nature of the injury No. I, the view which is favourable to the accused should be accepted by the Court. 10. Mr. Chatterjee, the public prosecutor has submitted that as it is in his general form that the injury has been caused with sharp weapon and PW 6 Doctor has rightly given Post mortem report and injury report stating that the injury No. I was incised wound. He further took his support. on PW I Jamna Ram who was stated that Gandasi blow was given on the head of the deceased. He further submits that PW 2 Banwari Lal should also be relied that the appellant had Danda' when he reached at the spot. He submits that it would have been better, if the doctor had given in his report the details, but the testimony of the doctor should not be discarded and should not be doubted only on this point. 11. Ordinarily one may cannot mistake at the time of examination injury, whether there was a cut on the bone or whether the margins of the wounds were regular or not and the Public Prosecutor is correct that on this ground the evidence should not be disbelieved. 11. Ordinarily one may cannot mistake at the time of examination injury, whether there was a cut on the bone or whether the margins of the wounds were regular or not and the Public Prosecutor is correct that on this ground the evidence should not be disbelieved. However, the absence of the mention of these facts in the injury report and post-mortem report a suspicion is created in the mind, while the doctor may also be correct. We are not discarding the evidence of the doctor, but a reasonable apprehension has been made on the point whether the injury No. 1 of the deceased has been caused with a sharp weapon or blunt weapon. 12. DW I Dr. B.P. Jangid has stated the possibility or injury No. 1 of the deceased by a blunt object. When there are two versions of the experts contrary to each other and the doctor produced as prosecution witness may be right, in the circumstances. We would like to extend benefit to the accused without commenting on their evidence. We are, in such circumstances, of the view that the probability of the wound to be lacerated one cannot be ruled out. The accused appellant has also come wit h the case that lathi was blown by him. Apart from that there was no previous enmity and the fight had taken all of a sudden. The cause of the incident in prosecution case, is not available. We consider it proper that in the facts and circumstances of the case, the conviction and sentences of the appellant under Section 302 IPC should be set-aside. It is admitted position that except injuries No. 1, the appellant has not inflicted any other injury on the deceased which may be by Gandasi. But be had inflicted only one blow. As far the statement under Section 313 Cr. PC, there may be probability or an altercation, though we are not in a position to accept to this extent that the deceased was an aggressor and the appellant inflicted one blow to him in the exercise of right of private defence of person. 13. Taking into consideration the facts and the nature of the injury, especially that only one injury has been inflected and that there was no previous enmity, we are of the view that the intention of the appellant was not to commit the murder. 13. Taking into consideration the facts and the nature of the injury, especially that only one injury has been inflected and that there was no previous enmity, we are of the view that the intention of the appellant was not to commit the murder. At the same time taking into consideration the nature of the injury and the probability that he might have used the force in such a way, which we consider it proper to attribute knowledge to the appellant that he had inflicted such injury which may be resulted into death. Hence, the conviction of the appellant under Section 302 IPC should be set-aside and he should be convicted under Section 304 Part II, for which we sentence him to 5 years rigorous imprisonment and a fine of Rs. 200/- in default of payment of fine he will further undergo rigorous imprisonment for 3 months. 14. In the result, the appeal is partly accepted, the conviction and sentences of the appellant under Section 302 IPC are set-aside. The accused appellant is convicted under Section 304 Part II and sentenced to 5 years rigorous imprisonment and a fine of Rs. 200/- in default of payment of fine he will undergo further rigorous imprisonment for 1hp:re months. The appellant shall be entitled to get the benefit of set off under Section 428 Cr. PC in accordance with law. The appeal is disposed off accordingly.Appeal Partly allowed. *******