U. K. VERMA, J. ( 1 ) PASHUPATI Nath Shukia had been convicted under section 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life. Aggrieved thereby, he has preferred this appeal. ( 2 ) THE uncontroverted facts are that Prem Chandra deceased aged eight years used to live with his brother-in-law Jasbir informent P. W. 1. The house wherein Jasbir resided was contigeous to the house in a portion of which the appellant was a tenant and in the remaining part of which there was the office of the Ziledar of the Canal Department wherein Jasbir was employed as a peon. The deceased sustained the injures noted below on 30-5-1977. 1) Traumatic swelling size 14 cm x 3 cm on the right side of the scalp touching ear 6 cm away from the left eye. 2) Traumatic swelling diffused in natureon the left side of the back. He remained under the treatment of the appellant for a day. He died while being taken from Maharajganj Primary Health Centre to the District Hospital, gorakjpur by Taxi. The autopsy on the dead body of Prem Chand was performed by Dr. Nervada Rao. His report is Ext. Ke-3 and shows Prem Chand aged eight years to have sustained the following ante-mortem injuries. 1) Contusion 2 x 1/2t1 the left side of the head 2t1 away from the outer and of left eye brow. 2) Contusion 51/2 x 3 at the left side back of the head adjacent to neck of the left external ear. 3) Bruise 1-1/2 at the outer surface of left upper arm in its middle. 4) Bruise 2 x ITI at outer side upper part of the left buttock. Under the head internal examination notes Dr. Rao recorded that he had notice fissure 21/2 x 1/2 x cavity deep from upwards to downwards in the left side occipital bone underneath the injury no. 2 with clotted blood in an area of 4 x 3 - 1/2t1 on the left side membranes. ( 3 ) THE prosecution case is that there was a quarrel between the son of the appellant and From Chand deceased in the afternoon of 30-5-1977. On coming to know of it, the appellant who was a doctor got very enraged. He, finding Prem Chand hiding himself beneath on office table of the Canal Department lifted and floored him in the pucca verandah. On coming to know of it, the appellant who was a doctor got very enraged. He, finding Prem Chand hiding himself beneath on office table of the Canal Department lifted and floored him in the pucca verandah. The Amina Shambhoo Narain Pandey P. W. 2, Ram Awadh P. W. 3, Mejidullah and Ram Awadh Gupta were preparing departmental registers nearly in that verandah and the informant Jasbir was also there. Prem Chand became unconscious immediately on sustaining the injuries. The appellant himself started treating him but when he could not be cured, he was taken to the Maharajganj Primary Health Centre. Dr. Om Prakash on duty there, advised that he be shifted to the main hospital at Gorakhpur for X Ray and treatment. From Chand died while being taken to Gorakhpur. The appellant before the incident had been advised by Am ins not to inflict injuries on Prem Chand. ( 4 ) THE prosecution examined Jasbir, informant and Shambhoo Saran Pandey and Ram Awadh Am ins as the witnesses of the occurrence. ( 5 ) THE appellant denied that he had caused any injury to Prem Chand. He only admitted to have treated him. He pointed that Jasbir had told him that Prem Chand had a fall from the roof. The prosecution witnesses, he explained, had made statement against him as he had helped the landlord Purshottam in the removal of the office of the ziledar from the house wherein he was also a tenant. He examined Sukhlal who deposed that on his arrival soon after the incident Jasbir informant had told him that Prem Chand had fallen from the roof and that none of the Amins had been present at that time, he also stated that Prem Chand had been treated by the appellant. ( 6 ) WE shall first examine whether the charge under Section 302 of the Indian Penal Code on the basis of the evidence adduced in this case should be said to have been proved. ( 6 ) WE shall first examine whether the charge under Section 302 of the Indian Penal Code on the basis of the evidence adduced in this case should be said to have been proved. The counsel for the appellant justifiably argued1) that if the appellant would have intended to cause the death of Prem Chand or 2) such bodily injury as was sufficient in the ordinary course of nature of cause his death or 3) he knew that his act was so imminently dangerous that it must in all probability would have caused death or such bodily injury was likely to cause death,he would not have left Prem Chand in the treatment of the appellant. The prosecution besides have not given details of the quarrel between the son of the appellant and the deceased Prem Chand. The informant Jasbir had stated that he also had joined Dr. Shukla in the search of Prem Chand. If Jasbir could imagine that the appellant was likely to kill Prem Chand he would not have searched Prem Chand alongwith him. The appellant used to live in the house in a portion of which Jasbir was a peon. Besides Jasbir was his neighbour. There is nothing to show that Jasbir or Prem Chand deceased had earlier annoyed the appellant. Even if it was supposed that the appellant had become angry with Prem Chand on account of his misbehaviour it would be too much to infer that he would have thought of killing him or causing such injuries as could lead to his death. Jasbir did not give out that the threat of causing death had been given by the appellant. The Amin Ram Awadh P. W. 3 appears to us to have exaggerated the story when he stated that the appellant had not merely given out his mind to beat Prem Chand but had said that he would kill him and that the matter could be reported to the police. The appellant, from the circumstances of the case as pointed out by the informant himself only had intended to chastic Prem Chand in such a manner that he never misbehave with his son so badly. Jasbir P. W. 1, Shambhoo Saran Pandey P. W. 2 and Ram Awadh P. W. 3 all stated that the appellant had lifted Prem Chand and floored him on the ground. Jasbir P. W. 1, Shambhoo Saran Pandey P. W. 2 and Ram Awadh P. W. 3 all stated that the appellant had lifted Prem Chand and floored him on the ground. Considering the fact that Prem Chand was a lad of eight years, the appellant should have visualized that his act of throwing was likely to cause fracture or dislocation of the bone of Prem Chand as turned out. It would not be justified to infer on the facts and circumstances of the case that the appellant by his act could only have intended simple hurt falling within the purview of section 323 of the Indian Penal Code. However, so far as the main stand of the appellant is concerned that he did not at all caused hurt to Prem Chand, it appears to us to be unworthy of belief even for a moment. No doubt the First Information Report was lodged after a day but it was only on account of the circumstances that the appellant was the neighbour of the informant and after the incident had shown a good gesture in treating Prem Chand and the informant and his family believed-till the condition of Prem Chand really become critical, that he could survive. The statement of Jasbir informant had been supported by the two Amins; Shambhoo Saran Pandey P. W. 2 and Ram A wadh P. W. 3. Their statement on oath although suffer from slight exaggeration hang together quite well with the statement of Jasbir. It is difficult to believe that simply because the appellant wanted that the office of the ziledar should not continue in the same house in a portion of which he was residing, the Amins and Jasbir would have combined to falsely accuse him of the charge of causing hurt to Prem Chand inspite of the fact that he had shown generosity in treating Prem Chand. We are of the opinion that by his above behaviour, the appellant had only tried to make amends in respect of his conduct in anger. The appellants witness Mukh Lal D. W. 1 did not state that he had himself seen the fall of Prem Chand. He admitted that when he reached on hearing the farore, he found Jasbir there. We are of the opinion that by his above behaviour, the appellant had only tried to make amends in respect of his conduct in anger. The appellants witness Mukh Lal D. W. 1 did not state that he had himself seen the fall of Prem Chand. He admitted that when he reached on hearing the farore, he found Jasbir there. He first tried to show that Jasbir did not tell anything but changed his stand that he told him that Prem Chand had a fall from the roof. His statement that the Amins were not present, does not inspire confidence for the Amins were likely to be present in the verandah when the register of the Canal Department was being prepared. There is no good reason to discard the statements of Shambhoo Saran Pandey P. W. 2 and Ram Awadh P. W. 3 on oath that in their presence, the appellant had floored Prem Chand in the pucca verandah. The prosecution has substantiated the charge of the lesser offence under Section 325 of the Indian Penal Code against the appellant although not under section 302 or even 304 of the Indian Penal Code for his act does not fall within the ambit of section 300 or section 299 of the Indian Penal Code. ORDER ( 7 ) THE appeal is partly allowed. The judgment and order convicting the appellant under section 302, I. P. C. and sentencing him to imprisonment for life are set aside. The appellant instead is convicted under section 325, I. P. C. and sentenced to imprisonment already undergone and to pay a fine of Rs. 5,000/- within three months and on his failure to do so, undergo Rigorous Imprisonment for a period of one year. Of the fine realised, two-third shall be paid to heirs of Prem Chand deceased and one-third shall go to the State. The appellant is not being sentenced to Rigorous Imprisonment as the incident had taken place more than 13 years back and the order granting him bail after the impugned judgment was passed about 12 years back and in the meantime there has been change in the circumstances not justifying imprisonment of the appellant if he pays the fine. ( 8 ) LET copy of this order be sent to the court concerned for compliance and report. Appeal partly allowed. .