JUDGMENT 1. - The appeal is directed against the judgment of the learned Sessions Judge, Bundi dated March 19, 1987 convicting the appellant under Section 302 IPC and sentencing him to imprisonment for life and a fine of Rs. 2,000/-, in default of payment of fine, to further undergo six months simple imprisonment. 2. Briefly stated the prosecution case is that the deceased victim Birbal aged 26 years was the nephew of PW1 Dhanna, being his sister's son and resided with him in village Daulatpura, P.S. Indergarh, District Bundi. Disputes between Birbal and the accused arose in respect of the cultivation of some agricultural land. The accused and the members of his family wanted to forcibly and unlawfully cultivate that land. A criminal case was also pending against the father of the accused involving an offence of assaulting and causing hurts. At about 11.00 A.M. on 12-11-1985, PW1 Dhanna sent his nephew Birbal to the temple of Hanumanji situate nearby the village Pond to offer prayers and perform worship. Dhanna went to his field also situate nearby village Pond. While Birbal and Chhitar were turning to their house from the temple and reached near village Pond, Birbal was assaulted by accused Rameshwar and his father Surajmal. Surajmal struck two blows of lathi on back and leg of Birbal. Birbal fell down. Thereafter, accused Rameshwar struck a blow with an axe on the back of the head of Birbal. The blow was severe and resulted in profuse bleeding. The appellant's mother Phoola also came there and gave kicks to Birbal. PW 1 Dhanna and some other persons rushed to the spot. Seeing them, the appellant and his parents left the place and ran away. The incident was seen by PWs Dhanna, Dadri, Ramratan, Gangadhar and Chhitar. Birbal became unconscious on the spot. He was taken in the bullock cart to Police Station, Indergarh where they reached at about 1.00 P.M. on the same day. PW 1 Dhanna verbally lodged report Ex. P. 1 of the incident. Birbal did not survive and passed away after some time. The police registered a case and proceeded with the investigation. The Investigating Officer Surgyan Singh, PW 12 prepared the inquest report of the victim's dead body. He also inspected the site and prepared the site plan, Ex. P. 12. The autopsy over the victim's dead body was conducted by PW 7 Dr. The police registered a case and proceeded with the investigation. The Investigating Officer Surgyan Singh, PW 12 prepared the inquest report of the victim's dead body. He also inspected the site and prepared the site plan, Ex. P. 12. The autopsy over the victim's dead body was conducted by PW 7 Dr. Shanker Lal, who was called at Indergarh, for that purpose by the Investigating Officer. The doctor noticed the following antemortem injuries over the victim's dead dody : External : (i) Incised wound 13 cm x 6 cm x 4 cm on occipital region; (ii) Teeth bite 8 in number on the right cheek, (iii) Abrasion on right knee. External : Fracture of occipital lobe. The doctor was of the opinion that the death of the victim had taken place on account of the head injury. He prepared the post-mortem examination report Ex. P- 7. The accused was arrested on 14-11-1985. In consequence of the information furnished by him, on axe was recovered. When the accused was arrested he was wearing a bus-shirt and a Dhoti stained with blood. Both these cloths were also seized and sealed. The blood stained clothes of the deceased victim were also seized and sealed. All these articles were sent for chemical examination. As per report Ex. P. 15 received from the State Forensic Science Laboratory human blood of `B' group was detected on all of them. On the completion of the investigation, the police filed a crime report against appellant Rameshwar and his father Surajmal in the court of the Additional Munsiff and Judicial Magistrate (2) Bundi, who in his turn, committed the case for trial to the court of Sessions. Learned Sessions Judge framed a charge under Section 302 IPC against appellant Rameshwar and under Section 302/34 IPC against his father accused Surajmal. Both the accused pleaded not guilty and faced the trial. Accused Surajmal denied his presence on the spot at the time of the incident. In his statement under Section 313 Criminal Procedure Code, appellant Rameshwar denied his having caused any injury to deceased Birbal and stated that it was he who was assaulted and belaboured by deceased Birbal. In support of its case, the prosecution examined 13 witnesses and filed some documents.. In defence accused Birbal examined one of witnesses Dr. M.P. Gupta, DW 1 to prove his injury report. In support of its case, the prosecution examined 13 witnesses and filed some documents.. In defence accused Birbal examined one of witnesses Dr. M.P. Gupta, DW 1 to prove his injury report. On the conclusion of the trial, the learned Sessions Judge found no incriminating evidence against accused Surajmal. He was consequently, acquitted of the offence he was charged with. The learned Sessions Judge took the charge duly proved against appellant Rameshwar. Rameshwar was accordingly convicted and sentenced as mentioned at the very out-set. Aggrieved against his conviction, Rameshwar has come up in appeal. 3. We have heard Mr. A.K. Gupta, learned counsel for the appellant and the learned Public Prosecutor Shri K.M. Sharma. We have also gone through the case file carefully. 4. Keeping in view the direct testimony of the occular witnesses PW 1 Dhanna, PW 2 Badri, PW 3 Ramratan and PW 4 Gangadhar, Mr. Gupta did not challenge the finding of the trial court that the appellant Rameshwar had struck a blow with an axe on the head of Birbal and thereby caused his death. The authorship of the head injury assigned to the appellant was not disputed before us. Mr. Gupta confined his submission only on the nature of offence made out from the material on record. 5. It was argued by Mr. Gupta that the court below crept into an error that the offence made out falls within the ambit of Section 300 IPC and, therefore, punishable under Section 302 IPC. It was argued that the disputes between the deceased victim and the appellant's family were not new or recent, they were years old. It cannot be, therefore, said that the appellant was situated with any intention to kill Birbal. PW1 Dhanna who is the real maternal uncle of the deceased victim and a star witness of the prosecution, stated in his police statement, Ex. D. 1 that the appellant and Birbal grappled with each other. When the accused was arrested on 14-11-1985, an injury was found on the right side of his head and another injury was found on his right shoulder. His injuries were examined on police request by DW1 Dr. M.P. Gupta. Out of them one was 1" x ⅓" caused by some sharp weapon. It was argued that this injury has not been explained by the eye-witnesses of the prosecution. His injuries were examined on police request by DW1 Dr. M.P. Gupta. Out of them one was 1" x ⅓" caused by some sharp weapon. It was argued that this injury has not been explained by the eye-witnesses of the prosecution. When appellant grappled with Birbal both of them must have had sharp weapons with them because the injuries of both of them were caused by sharp weapons as per post mortem examination report and the injury of the victim's dead body and the injury report of the appellant. It was argued that in this grappling, deceased Birbal received an injury at the hands of the appellant. There was no intention on the part of the appellant to cause the murder. The prosecution is again silent as to how the occurrence started. When these facts and circumstances are considered and assimilated together, it cannot be affirmatively held that the appellant intended to cause any injury on the head of Birbal. The offence, therefore is not covered under Clause Thirdly of Section 300 IPC. The offence made gut falls under Second Part of Section 304 IPC. Reliance in support of the contention was placed on Brijmohan v. State of Raj., 1986 Cr. LJ Raj. 699 and Kartar Singh v. State of Punjab, AIR 1988 SC 2122 . 6. It was on the other hand contended by the learned Public Prosecutor that the injury on the head of the deceased victim was intentionally caused by the appellant and that injury was found sufficient in the ordinary course of nature to cause death as per the medical evidence of Dr. Shankar Lal, PW 7, who conducted the autopsy. The case is, therefore, covered by Clause Thirdly of Section 300 IPC and the offence made out is of culpable homicide amounting to murder. 7. We have taken the respective submissions into consideration. 8. The case has some striking features, which cannot be lightly ignored and brushed aside. In the FIR, Ex. P. 1 lodged by the star witness PW 1 Dhanna, it has been stated that the appellant, his father Surajmal and his mother Phoola came on the spot and gave kick; to deceased Birbal The act of kicking assigned to Surajmal was lateron given up during trial and new allegation was introduced that Surajmal had a stick and he inflicted two blows on Birbal on the back and other on his leg. This allegation of kicking or striking blows to Birbal by stick has been disbelieved and rejected by the trial court and rightly so in our opinion. This substitution of the false allegation shows that absolute truth has not been stated by PW 1 Dhanna and the other ocular witnesses. They are capable of introducing false averments. Absolute dependence therefore, cannot be placed on the version of the incident as alleged by the eye witnesses. PW 1 Dhanna in his police Statement, Ex. D/1 stated that there was a grappling between the appellant and the deceased victim. He denied in his police statement, Ex. D/1 portion marked A to B. He denied to have given the aforesaid statement when he was confronted with it during his cross-examination. Despite his denial the fact remains that he had stated in his police statement that there was a grappling between the appellant and the deceased victim. 9. PW 6 Chhitar Puri is said to be with the deceased victim throughout when they went together to the temple and returned from there. He was the best witness to disclose as to how the incident started. Unfortunately, he turned hostile and led no support to the prosecution. The other witnesses were at some distance. They were there, not in a position to state genesis of the occurrence. When the appellant was arrested on 14-11-1985 vide arrest memo Ex. P. 11 two injuries were found on his person, one on his right shoulder. His injuries were not examined on 16-11-1985 by the police. The examination was made by D.W. 1 M.P. Gupta. He found one incised wound 1" x 1/4" on the right parieto occipito temporal region of scalp. The injury was caused by sharp weapon. The other injury was found on his right shoulder caused by some blunt object. These injuries were not explained by P.W. 1 Dhanna and the other eye witnesses as to how they were caused to the accused. The injuries of the appellant tally in time with the incident. The eye-witnesses of the prosecution have thus again suppressed some vital facts. The result is that the genesis of the occurrence is not known. It appears that when the deceased victim Birbal was returning from the temple, he found the appellant in the way. The deceased victim must have some sort of sharp weapon with him. The eye-witnesses of the prosecution have thus again suppressed some vital facts. The result is that the genesis of the occurrence is not known. It appears that when the deceased victim Birbal was returning from the temple, he found the appellant in the way. The deceased victim must have some sort of sharp weapon with him. It further appears that a grappling took place between the appellant and Birbal and in that grappling both of them sustained injuries. The injury inflicted to the victim by the appellant is only one. No repetition of blows is there. On account of the grappling between the appellant and the deceased, it cannot be said with certainty that the appellant intended to cause that very injury which fell on the posterior occipital region of the victim. 10. One of the essential requirements to bring the case within the ambit of Clause Thirdly of Section 303 IPC is that accused must intend to cause that very injury which resulted in death. This essential element is wanting in the instant case. As such the case is not covered by clause Thirdly of Section 300 IPC. In Kartar Singh v. State of Punjab (supra) a similar situation like that in the instant case arose. The accused was convicted under Section 302 IPC. The conviction under Section 302 was altered to that under Section 304 Part II IPC. Their Lordships observed as under:- "The circumstances that appear are that there is no clear explanation of the injuries on the accused person. The appellant has set up a defence that the scuffle started and it is only in that situation that he took out the knife and inflicted a blow. It is also not in dispute that it was only one blow which was inflicted by the present appellant. In these circumstances, the evidence of the prosecution does not clearly establish the manner in which the incident took place and, therefore, it could not be held that the incident did not take place in the manner suggested by the present appellant accused, and in that situation it could not be held that he inflicted this injury with an intention to cause death. At best, knowledge could be imported to him that it may result in death. In view of this the conviction of the appellant under Section 302 could not be maintained. At best, knowledge could be imported to him that it may result in death. In view of this the conviction of the appellant under Section 302 could not be maintained. The conviction of the appellant is altered to 304 Part II. In Brij Mahan v. State of Rajasthan (supra) decided by a Division Bench of this court, of which one of us (Justice S.S. Byas) was a member, the accused inflicted one incised wound 3" x 1/2" x 1" deep beyond thoracic warm of the victim. The trial court convicted the accused under Section 302 IPC. The conviction was altered to that under Section 304 Part-II IPC. One of the reasons which prevailed over the learned Judges was that the genesis of the quarrel as to how the incident started was not placed before the prosecution. In the instant case, as we have already discussed above, clause Thirdly of Sec 300 IPC is not attracted. The conviction of the accused maintained, in as much as death has been caused the knowledge mentioned in Second Part of Section 304 IPC can be safely attributed to the appellant. The offence committed by the accused, therefore, falls under Section 304 Part-II IPC as the act was done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injuries as is likely to cause death. 11. In the result, we partly allow the appeal of accused Rameshwar. His conviction and sentence under Section 302 IPC are set aside and instead he is convicted under Section 304 Part II IPC and is sentenced to five years rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine, to further undergo five months like imprisonment. The accused is already in jail serving the sentence. The period of detention undergone by him during investigation, inquiry or trial shall be set of against the term of imprisonment imposed on him. 12. The appeal shall accordingly be disposed of.Appeal partly allowed. *******