S.S. BYAS, J.—Accused Ganesh Giri was convicted under sec. 302, I.P.C. and sentenced to imprisonment for life with a fine of Rs. 500/-, in default of the payment of fine to further undergo three months rigorous imprisonment by the learned Additional Sessions Judge, Sirohi by his judgment dated June 30, 1981. The accused has come-up in appeal and challenges his conviction. 2. In succinct, the prosecution case is that PW 9 Dariya Giri alias Inder Giri is the son-in-law of the deceased-victim Bheek Puri. Bheek Puri had no issues other than his daughter married to Dariya Giri. Dariya Giri was, therefore living with Bheek Puri in his village Udwadiya as his resident son-in-law (GHAR JANWAI). Dariya Giri had a brother by name Shokh Giri. The accused is the son of Shokh Giri and, thus, the real nephew of Dariya Giri. When the accused was nearly, of five years in age, his father Shokh Giri passed away and on his death, his mother contacted second marriage. There, thus, remained none to look-after and bring-up the accused. Dariya Giri took pity on him and with the. permission of Bheek,Puri, brought him in village Udawadiya. The accused started living in the family of the deceased Bheek Puri and was brought-up there. A, day before the incident (August 13, 1980), Bheek Puri reprimanded the accused and Dariya Giri for not bringing the carpenter. It is alleged that the accused could not swallow and digest the insult of his being reprimanded by Bheek Puri. 3. At about 8.00 or 8.30 a.m. on May 13, 1980, PW 7 Shanker Nai, PW 8 Chela Kalbi and the deceased Bheek Puri were sitting in the Varandah of the Panchayat Bhawan. RW 6 Bheema Ram Lohar was then standing out-side his shop situate in front of the Varandah of the Panchayat Bhawan. The accused suddenly came there with a Jatroo in his hand. He struck a blow on the right hand and another blow on the head of Bheek Puri with his Jatroo. Bheek Puri fell down. Bheema Ram, Shanker and Chela Kalbi tried to catch hold of the accused, but he managed to run away. These persons took Bheek Puri to his house. PW 6 Bheema Ram sent his brother to Sanwara to bring the doctor from there. PW 13 Dr. Bheek Puri fell down. Bheema Ram, Shanker and Chela Kalbi tried to catch hold of the accused, but he managed to run away. These persons took Bheek Puri to his house. PW 6 Bheema Ram sent his brother to Sanwara to bring the doctor from there. PW 13 Dr. J.M. Lodha, who was then posted in the Government Dispensary, Udwadiya Sanwara came to village Udwadiya at about 11.30 a m. While the doctor was coming giving treatment to Bheek Puri, Bheek Puri succumbed to the injuries. PW 6 Bheema Ram drew up report EX. P 2 of the incident and left to go to the Police Station, Anadra. When he reached village Sirodli, he found the Head Constable Gani Khan (PW 10) there at the bus stand. He submitted report EX. P2 before him. The report was sent to the Police Station, Anadra, where a case was registered. PW 11 Mohammed Iqbal, A.S.I. Police, was directed by the Superintendent of Police to conduct investigation in the case. He arrived on the spot in the morning of May 14,1980; He inspected the site, prepared the site inspection memo and the inquest report of the victims dead-body. The post-mortem examination on the victims dead body was conducted by PW 13 Dr. Lodha. He found the following ante-mortem injuries on the victims dead body:- External 1. "Lacerated wound J" x 2/10x bone deep compound fracture upper 1/3 rd shaft of right humorous with obvious deformity of right arm." Internal 1. "Ecchymosis and depressed fracture of left parietal region of scalp. There was comminuted depressed fracture (four/five pieces) on the left parietal bone extending over whole of the right parietal bone tapering about 8" in length." The doctor was of the opinion that the cause of death was shock and haemorrhage due to the infliction of severe head injury. The post-mortem report issued by the doctor is EX P. 17. The accused was arrested on May 10, 1980. The blood-smeared clothes of the deceased and the Jatroo lying on the site of the incident were seized and sealed. On the completion of investigation, the police presented a challan against the accused in the Court of Munsif cum Judicial Magistrate, Sirohi, who, in his turn, committed the case for trial to the Court of Sessions. The blood-smeared clothes of the deceased and the Jatroo lying on the site of the incident were seized and sealed. On the completion of investigation, the police presented a challan against the accused in the Court of Munsif cum Judicial Magistrate, Sirohi, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge framed a charge under section 302, I.P.C. against the accused, to which he pleaded not guilty and claimed absolute-innocence. According to him, he was falsely implicated by his uncle Dariya Giri, who wanted to unlawfully usurp his property. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, the accused adduced no evidence. Out of the thirteen witnesses, examined by the prosecution, PW 6 Bheema Ram, PW 7 Shanker Nai and PW8 Chela Kalbi are the ocular witnesses of the incident, each of whom has claimed to have seen the occurrence from its commencement to the end. The learned Sessions Judge held the testimony of these three eye witnesses as trustworthy and reliable. Since the medical opinion was that the head injury was sufficient in the ordinary course of nature to cause death, the learned Sessions Judge took the charge under section 302, I.P.C. duly brought home to the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against his conviction, the accused has been taken this appeal. 4. We have heard Mr. S. R. Singhi learned counsel for the accused and Mr. L.S. Udawat, the learned Public Prosecutor. We have also gone through the case file carefully. 5. Keeping in view the direct and positive evidence of the three eye witnesses PW 6 Bheema Ram, PW 7 Shanker Nai and PW 8 Chela Kalbi, Mr. Singhi did not challenge the finding of the trial Court on the fact in issue that the accused struck two blows to the deceased-victim with his Jatroo. One of which was on the head and the other was on the hand. Mr. Singhi has confined his submission only to the nature of the offence made out from the proved facts. 6. It was argued by Mr. Singhi that the accused was a young-boy below twenty years in age at the time of the incident. He had no ill-will against or enmity with the deceased Bheek Puri. Mr. Singhi has confined his submission only to the nature of the offence made out from the proved facts. 6. It was argued by Mr. Singhi that the accused was a young-boy below twenty years in age at the time of the incident. He had no ill-will against or enmity with the deceased Bheek Puri. It was the deceased victim Bheek Puri who had looked after and brought up the accused. The accused, being a boy of hot temperament, could not swallow and digest the insult hurled on him by the deceased on the previous day. The deceased had reprimanded the accused and his uncle Dariya Giri (PW 9) for their not bringing the carpenter. If the accused had any intention to kill Bheek Puri, he would have first of all landed the blow on his head and not on his hand. In these circumstances, the offence of culpable homicide amounting to murder cannot be said to have been established. The accused, at the worst, can be held guilty under section 304 Part II, I.P.C. It was, on the other hand, contended by the learned Public Prosecutor that the accused struck two blows with a Jatroo. The Jatroo is a strong and formidable piece of wood nearly one metre in length. The head injury was found as sufficient in the ordinary course of nature to cause death. The accused was, therefore, rightly convicted under section 302, I.P.C. because the case falls squarely within Clause 3rdly of section 300, I.P.C. 7. We have bestowed our thoughtful consideration to the rival submissions. 8. As admitted by PW 9 Dariya Giri, who is none else but the son-in-law of the deceased-victim, that on the previous day of the occurrence, Bheek Puri had reprimanded, scolded and abused him and the accused for not bringing the carpenter and made an issue of the matter. There is nothing on record to suggest nor are the circumstances to infer that there was any bad-blood between the deceased-victim and the accused. Admittedly, the accused was looked after and brought up from his age of five years by the deceased. It appears that the accused could not swallow and digest the insult and the abuses hurled on him by the deceased. There was, therefore, no intention on the part of the accused to kill the deceased. Admittedly, the accused was looked after and brought up from his age of five years by the deceased. It appears that the accused could not swallow and digest the insult and the abuses hurled on him by the deceased. There was, therefore, no intention on the part of the accused to kill the deceased. It may be pointed out at this stage that as per post-mortem examination report EX. P 17, the deceased was nearly seventy years of age at the time of the incident. PW 8 Chela Kalbi has admitted in his cross-examination that on the infliction of the first blow, PW 7 Shanker tried to intervene and save the deceased, but the accused managed to strike the second blow on the victims head. To quote him in his own words:- ^^igyh pksV gkFk ij yxk;h FkhA mlds ckn kadj cpkus yxk ysfdu cpkrs cpkrs fl ij Hkh[kkiqjh ds flj ij pksV x.ksk us ekj nhA** 9. Clause 3rdly of Section 300, I.P.C. also speaks of an intention to cause the bodily injury. Here in the instant case, looking to the statement of PW 8 Chela Kalbi, it cannot be safely said that the accused intended to cause any injury on the head of the victim. We are, therefore, unable to press into service Clause 3rdly of Section 300, I.P.C. In our opinion, Section 300, I.P.C. does not cover the case. Inasmuch as death has been caused, the matter must still come atleast within the meaning of culpable homicide not amounting to murder. The accused did the act with the knowledge that by his act he was likely to cause the death of the victim. The matter, therefore, falls within the 3rd part of Section 299 and is, therefore, punishable under the Second Part of Section 304, I.P.C. Section 304, I.P.C. applies to the case when the act is done with the knowledge that death is likely to ensue, but there is no intention to cause death or an injury likely to cause death. Laxman Kalu Niklje vs. State of Maharastra (1) provides an analogy. The offence made out against the accused is, therefore, not under section 302 but under the Second Part of Section 304, I.P.C. 10. In the result, the appeal of accused Ganesh Giri is partly allowed. Laxman Kalu Niklje vs. State of Maharastra (1) provides an analogy. The offence made out against the accused is, therefore, not under section 302 but under the Second Part of Section 304, I.P.C. 10. In the result, the appeal of accused Ganesh Giri is partly allowed. His conviction under section 302 is altered to that under section 304 Part II, I.P.C. and he is sentenced to five years rigorous imprisonment. The accused was arrested on May 14, 1980 and since then he is in custody. He shall, therefore, be immediately set-forth at liberty if not wanted in any other case.