JUDGMENT 1. - The appellants have preferred this appeal against the judgment of Additional Sessions Judge, Bundi, dated 28th June, 1976, by which appellant Gopal has been convicted under section 302, IPC, and sentenced to imprisonment for life and a fine of Rs. 200/-, and in default of payment of fine, to further undergo three month's rigorous imprisonment; and appellant Kishanlal has been convicted under section 323/34, IPC, and sentenced to six months' rigorous imprisonment. 2. The brief facts giving rise to this appeal are the one Mannalal, son of Hainath lodged a report at PS Keshorai Patan, on 6th Dec. 75 at about 11 AM, to the effect that on that morning in between 8 and 9 AM, Gopal and Kishanlal brought a tractor from the side of their house, and when it came near their house, they tried to remove the stones from the 'Chabutri' and the wooden Togs which were lying there They (accused persons) were accompanied by Parma, son of Bala Meena and one Sheojinath. When the tractor hardly proceeded a little ahead, they stopped their tractor and came back. They started removing a stone on their 'Chabutri' and the logs of wood. His father objected to it, but the accused persons insisted on their removal. At this, Kishanlal in order to give a blow by his spade, raised it. But, before he could deliver a blow by his spade, accused Gopal took out a 'Kharliya' (piece of wood) from the bullock-cart of Ramkaran, which was standing nearby, and inflicted a blow with it on the head of Harnath. Gopal accused had raised the `Kharliya' with both of his hands, and the blow landed on the scalp of Harnath (deceased), as a result of which, Harnath set down and his head started bleeding. This incident was seen by Dhannalal PW I and his mother, Mst.Kasturi. One Nandkishore Meena then bandaged the head of Harnath with a turban. Then, the other villagers along with Dhannalal took the accused persons towards their house. Harnath was removed to Keshorai Patan, in a bullock-cart and was admitted to hospital. On this report, a case under section 307/34, IPC, was registered. As the condition of Harnath was very serious, he was referred to Government Hospital, Bundi, where he succumbed to injuries,on 10th Dec. 75, at about 8-50 AM. The case was then converted into that under section 302, IPC. 3. On this report, a case under section 307/34, IPC, was registered. As the condition of Harnath was very serious, he was referred to Government Hospital, Bundi, where he succumbed to injuries,on 10th Dec. 75, at about 8-50 AM. The case was then converted into that under section 302, IPC. 3. During investigation, 'panchayatnama' of the dead body of Harnath, was prepared. The accused persons were arrested on 22nd Dec. 75. On 25th Dec., 75, Gopal accused gave information under section 27 of the Indian Evidence Act for recovery of one `Kharliya'. On the basis of this information and at his instance, the `Kharliya' was recovered. Accused Kishanlal also gave information for recovery of one spade, and on the basis of this information and at his instance, the spade was recovered. 4. After completing the investigation, the police submitted a challan under section 302 & 302/34, IPC, against the accused persons. 5. The Additional Sessions Judge, Bundi framed charge against Gopal accused under section 302, IPC, and against Kishanlal under section 302/34, IPC. Both the accused pleaded not guilty and claimed trial. The prosecution, in support of its case, examined in all nine witnesses. The accused persons also produced two witnesses in their defence. The contention of Copal accused was that he and Sheoji were going to their field on a tractor, and when they came out from the Nohra, in front of house of Harnath, some stones and logs of wood were lying, and as there was no place for the tractor to pass, he thought to remove that obstruction from the way. With this intention, he went to his house and brought a spade to remove the stones, to that, the tractor could pass easily. Kisharlal then started removing the stones and the pieces of wood. At that time, Harnath obstructed them and asked them not to do so Harnath then gave him a push, whereupon, he told Harnath that as the road was being blocked, he was removing the pieces of wood and the stones. Then, Harnath lifted a stone piece weighing about 15-20 kgs. and wanted to inflict a blow on the head of Kishanlal. Nandkishore and Ramkaran then cried, Bachao Bachao". He then intervened and saved his brother Kishanlal Similar was the contention of Kishanlal. It it. however, not alleged that the stone had hit Kishanlal's body. 6. Then, Harnath lifted a stone piece weighing about 15-20 kgs. and wanted to inflict a blow on the head of Kishanlal. Nandkishore and Ramkaran then cried, Bachao Bachao". He then intervened and saved his brother Kishanlal Similar was the contention of Kishanlal. It it. however, not alleged that the stone had hit Kishanlal's body. 6. Dhannalal PW 1 has stated that he was at the house of Harnath. One tractor was standing near the house of Ramkaran, Gopal and Harnath were also standing there. Gopal was asking Harnath that he would remove the stones and would pass the tractor. Harnath was telling him first to remove his vehicle and then he would remove the stones. Gopal then went to his house and after some time, Gopal and Kishanlal came back. Kishan Lal was having a spade in his hand. They started to remove the stones, and Harnath was asking them not to do so. Kishanlal was still forcibly removing the stones, and thus, there was a scuffle in between Harnath and Kishanlal. Kishanlal raised his spade in order to inflict a blow, but, before he could do so, Gopal took out a 'Kharliya' and inflicted a blow with it on the head of Harnath. Harnath fell down and was bleeding. He then caught hold of Gopal. Similar statement has been given by Nandkishore PW 2 and Bajranglal PW 3 Mannalal PW 4 is the son of deceased Harnath. He has stated that in front of their house, there was a way which was 12-13 feet in width. There was a 'Chabutri' in front of the Nohra, where small stone was fixed. Gopal and Sheoji came with a tractor and they took out their tractor through the Nohra, and stopping it in front of the house of Seetaram. Gopal came back and started removing the stone. His father objected to it. Copal then went away to his house and called his brother Kishanlal, who also came with a spade. Penna and Bala were also present there. Kishanlal started removing the stones. His father Harnath asked Kishanlal not to remove it. But, Kishanlal pushed his father one side and again started removing the stones. Kishanlal then raised his spade with both of his hands and wanted to inflict a blow with it to his father. Penna and Bala were also present there. Kishanlal started removing the stones. His father Harnath asked Kishanlal not to remove it. But, Kishanlal pushed his father one side and again started removing the stones. Kishanlal then raised his spade with both of his hands and wanted to inflict a blow with it to his father. Meanwhile, Gopal took out a 'Kharliya' from the bullock-cart and inflicted a blow with it on the head of his father, who fell down on the ground as a result thereof. He has further stated that Bhanne Bai caught hold of Gopal and took him to the other side. His father was then taken to hospital and was referred to Government Hospital, Bundi, who, after 2-3 days expired in the hospital. Similar is the statement of Mst. Kasturi, widow of Harnath (deceased.) 7. From a perusal of these statements, we are of the opinion that the prosecution witnesses have proved that Gopal and Sheoji were taking their tractor, and on the question of removing the stones and wood which were lying near the `Chabutri' of Harnath (deceased), the dispute took. place. Kishanlal wanted to hit Harnath with his spade, but before he could do so, Gopal appellant inflicted a blow with Kharliya on the head of Harnath which resulted in injury to Harnath, and ultimately, he died. So, it is amply proved that Gopal appellant inflicted `Kharliya' blow on the head of Harnath. 8. Dr. Proniod Kumar Bhatnagar PW 6, on 6th Dec. 75, examined the injuries of Harnath, and he found the following injuries on his person: "1. One lacerated wound 2 1/2" x 1/2" on scalp left side oblique in direction along leangth of scalp posterior and rt. wound irregularly torn about 4" away from midline, autirim end of wound about 3" away from midline, wound in line of left ear. 2. Contusion of 4" x 4" scalp around injury No. I. 3. Abrasion of 1/2" x 1/2" rt. knee laterally. 4. Abrasion rt. of 1/2" x 1/2" rt. knee medially. 5. Abrasion 3/4" x 1/2" left leg below knee. 6. Abrasion 1/2" x 1/2" left knee upper part," The doctor found injuries Nos. 1 & 2 grievous in nature, and therefore, he advised for X-Ray examination. 9. Dr. S.S. Raha PW 7 conducted the postmortem examination on the dead body of deceased Harnath. of 1/2" x 1/2" rt. knee medially. 5. Abrasion 3/4" x 1/2" left leg below knee. 6. Abrasion 1/2" x 1/2" left knee upper part," The doctor found injuries Nos. 1 & 2 grievous in nature, and therefore, he advised for X-Ray examination. 9. Dr. S.S. Raha PW 7 conducted the postmortem examination on the dead body of deceased Harnath. He found one stitched wound 11/2" long on the left tempro-parietal region. He also found a fracture on the left tempro parietal region 1" long and 1/2" depressed below the external injury. On internal examination, he found the membrance of brain ruptured containing 1" diameter blood clot. According to him the cause of death was due to the head injury, bleeding to profound contusion and intracranial haemorrhage. 10. From a discussion of the entire prosecution evidence and the injury and postmortem reports, it is clear that Harnath did on account of his head injury. Therefore, his death was homicidal in nature. There is no dispute to this aspect also. 11. The learned counsel for the accused-appellants did not argue the case on merits, but laid stress on the point that a case under section 302, IPC, is not made out against Gopal accused. His argument was that Gopal had no intention to commit murder of Harnath, and the dispute or quarrel took place on the question of removing the stones and wood in order to take out the tractor. In that dispute or quarrel which has sudden in nature, injuries were caused to Hanarth. It cannot be said that the accused had any pre-plan to murder him, and as in a sudden fight and in the heat of passion, the murder was committed by the accused, Gopal, according to the learned counsel, a case under section 304' Part-11, IPC only is made out against him. 12. The learned Public Prosecutor, on the other hand, has supported the judgment of the learned Additional Sessions judge and argued that a clear case under section 302, IPC, has been made out against the accused, Gopal. Gopal went to his house, and when he came back, he was accompanied by his brother, who had a spade in his hand. So, it was the clear intention of the accused appellants to commit murder of Harnath. Gopal went to his house, and when he came back, he was accompanied by his brother, who had a spade in his hand. So, it was the clear intention of the accused appellants to commit murder of Harnath. She argued that both the appellants came from their house with a spade being pre-planned and inflicted blow to Harnath, which clearly proves their intention of committing murder. According to her, therefore, the learned Additional Sessions Judge has correctly held them guilty. 13. We have given our anxious consideration to the rival contentions of both the learned counsel for the parties. 14. A culpable homicide is murder, if the act by which the death is caused, is done with the intention of causing death, or with the intention of causing bodily injury as the offender knows to be likely to cause death, or with the intention of causing such bodily injury and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or while committing the act, the persons know that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. 15. There are certain exceptions to this law. According to Exception (iv) to S. 300, IPC, a culpable homicide is not murder, if it is committed without pre-meditation in a sudden fight in a heat of passion, upon a sudden quarrel and without the offender having taken any undue advantage or acted in a cruel or unusual manner. In such a case, it is immaterial as to which party offers provocation or commits the first assault, 16. Now, keeping the principle as laid down in S. 300, IPC, we have perused the statements of the witnesses, and we are of the opinion that the present cage is not covered by S. 300, IPC. It cannot be said that the accused in this case had any intention or pre-meditation to cause death of the victim; nor can it be said that he had any intention of causing such bodily injury which he knew to be likely to cause death. Prom the evidence on record, also it cannot be inferred that the accused had any intention of causing such bodily injury and the injury which he intended to be inflicted, was sufficient in the ordinary course of nature to cause death. Prom the evidence on record, also it cannot be inferred that the accused had any intention of causing such bodily injury and the injury which he intended to be inflicted, was sufficient in the ordinary course of nature to cause death. As the evidence shows, there was some altercation between the two parties, and both the parties fought with and other which took place all of a sudden. It cannot be inferred that the accused had any pre-plan or pre-concert, or that they came with a pre-meditation to commit the murder. As a matter of fact, in a sudden quarrel and in the heat of passion, the incident took place, in which, Harnath (deceased) fell victim. Therefore, the case is completely covered by Exception (iv) to S. 300, IPC. 17. After examining the entire evidence on record very minutely, we are of the opinion that the present case is covered by S 304, Part-I, IPC No doubt, it was a culpable homicide, hut, it did not amount to murder. In the present case, there was no pre-plan or pre-meditation and in a sudden quarrel and fight, the incident took place. The intention of the accused was simply to cause such bodily injury as was not likely to cause death. Therefore, this case falls within the ambit of S 304, Part I, IPC. 18. In the present case, as the evidence shows, Gopal and Sheoji were going with their tractor to their field. They found some obstruction on the way for passing their tractor, and hence, they wanted to remove the said obstruction of stones and pieces of wood. Hence, it cannot be said that Gopal had any intention to commit murder of Harnath, because, they were simply going to their field. Harnath was at his house and when Gopal wanted to pass his tractor removing the stones, Harnath obstructed, which resulted in some altercation, and the dispute took place. In that sudden quarrel, Gopal inflicted on the head of Harnath with 'Kharliya' which resulted in fracture, who after some days, died in the hospital. So, from all these evidence, it cannot be said that Gopal had any intention to commit murder of Harnath. In sudden fight and in the heat of passion, he inflicted blow to Harnath. So, the case is squarely covered by Exception (iv) to S. 300, IPC. So, from all these evidence, it cannot be said that Gopal had any intention to commit murder of Harnath. In sudden fight and in the heat of passion, he inflicted blow to Harnath. So, the case is squarely covered by Exception (iv) to S. 300, IPC. Gopal, of course, inflicted the blow with `Kharliya' on the head of Harnarth with the intention of causing such bodily injury as was likely to cause his death. Therefore, this case falls within the purview of S. 304, Part-I, IPC. 19. In view of our above discussion, we are of opinion that a case under section 302, IPC, is not made out against accused Gopal, and his conviction and sentence under this section, cannot, therefore, be maintained. Appellant Kishanlal has been found guilty of the offence under section 323/34, IPC, by the learned trial court, and in our opinion, he has been rightly held so. 20. In the result, the appeal is partly accepted. The conviction and the sentence of accused-appellant under section 302, IPC, are set aside. He instead, is convicted, of the offence under section 304, Part-I, IPC, and sentenced to 7 years' rigorous imprisonment and a fine of Rs. 200/-. In default of payment of fine, he shall further undergo rigorous imprisonment for three months.2l. The conviction and the sentence of accused-appellant Kishanlal, under section 323/34, IPC, are maintained. He has already undergone the imprisonment awarded to him by the learned trial court. Hence. he be not rearrested and sent to jail.22. Accused-appellants Gopal is on bail. The trial court is directed to take steps for the arrest of accused Gopal and sent him to jail to undergo the sentence of imprisonment awarded to him by this Court.Appeal partly accepted. *******