D. K. TRIVEDI, J. ( 1 ) INDRA Jeet has preferred this criminal appeal against the judgment and order dated 28-9-1978 passed by the IVth Addl. Sessions Judge, Sitapur, convicting the appellant under Section 302, I. P. C. and sentencing him to undergo R. I. for life. He further convicted the appellant under Section 201, I. P. C. and awarded a sentence of three years R. I. and a fine of Rs. 200. 00. In case of default of payment of fine he ordered the appellant to further undergo R. I. for three months. ( 2 ) THE prosecution story in brief is that there is a land in front of Ghari of Sohan Lal in which Sohan Lal used to tether his cattle. Indra Jeet accused had kept a hut to the west of the house of Sohan Lal and by andby he was encroaching upon the land towards cast of that hut. One day prior to the incident Indra Jeet accused was erecting Tatial at a distance of 20 paces from the Ghari of Sohan Lal. Ram Lal asked Indra Jeet not to erect any Tatial till the arrival of Sohn Lal. It is alleged that the next day i. e. 18-2-1976 at about 4. 30 p. m. Indra Jeet was erecting Tatial by digging a Nali. Sohan Lal along with Ram Lal P. W. 1 reached there and asked him not to do so. At that time a Kudal was kept near a Neem tree and Indra Jeet was erecting Tatial. It is further alleged that his Kanta was lying near him. On the protest lodged by Sohan Lal Indra Jeet started abusing them and some altercation also took place between Indra Jeet and Sohan Lal. Sohan Lal thereafter tried to demolish Tatial and then it is said that Indra Jeet picked up Kanta and gave one Kanta blow to Sohan Lal and ran away. Sohan Lal after receiving injury fell down but he was lifted and carried to his Ghari by the witnesses. At that time Sohan Lal was speaking properly but after some time be became unconscious. After arranging for a bullock cart and after arrival of Chaukidar Ram Lal along with the wife of Sohan Lal started for the police station Tambaur and lodged a report at 11. 45 p. m. in the night. The F. I. R. is Ext. :ka- 1. After arranging for a bullock cart and after arrival of Chaukidar Ram Lal along with the wife of Sohan Lal started for the police station Tambaur and lodged a report at 11. 45 p. m. in the night. The F. I. R. is Ext. :ka- 1. A case was registered and thereafter Sohan Lal was sent to Tambaur Hospital for medical examination and treatment. Sohan Lal was admitted in Tambaur Hospital at about 1 a. m. Unfortunately doctor was not present at the hospital and, therefore, Seedul Hasan Compounder gave medicine to Sohan Lal. The condition of Sohan Lal became serious, and finally Sohan Lal died at about 5 a. m. in Tambaur Hospital itself. The Compounder handover the dead body to the Supurdgi of Chaukidar and sent written information about the death of Sohan Lal to P. S. Tambaur, S. 1. Badri Prasad Tewari P. W. 12 reached the Tambaur hospital at about 6 a. m. and prepared inquest report Ext. Ka-7 of Sohan Lal as well as other papers in the hospital and thereafter handed over the dead body to Constable Mahesh Prasad Tewari for autopsy. It is alleged that due to arrival of the Superintendent of Police at about 11 p. m. the Investigating Officer remained at the police station up to 12. 30 Hours and he reached the place of occurrence at about 3. 10 hours. He prepared the site plan Ext. Ka-12 and recorded the statements of the witnesses. He also recovered samples of bloodstained and plain earth and Kudal which according to the prosecution case belonged to Indra Jeet accused. On 21-2-1976 he arrested Indra Jeet accused and thereafter at his pointing out recovered bloodstained Kanta from the eastern Ghari of Munna Darzi. The Kanta was recovered after digging earth. The Investigating Officer thereafter prepared site plan Ext, Ka- 17 and also sealed Kanta vide the memo Ext. Ka-6. ( 3 ) IN support of its case the prosecution examined 17 witnesses. Out of them P. W. 1 Ram Lal, P. W. 6 Ramai, P. W. 7 Pyarey Lal and P. W. 8 Sripal are witnesses of fact. P. W. 2 is Dr. L. N. Varma who was Officer- In-Charge, Primary Health Centre, Tambaur. He conducted autopsy on the dead body of Sohan Lal and prepared the report which is Ext. Ka-2. The doctor found one incised, wound over top of skull. P. W. 2 is Dr. L. N. Varma who was Officer- In-Charge, Primary Health Centre, Tambaur. He conducted autopsy on the dead body of Sohan Lal and prepared the report which is Ext. Ka-2. The doctor found one incised, wound over top of skull. He further found bone of skull, left parietal bone cut along with parietal and frontal bone. He further found a triangular piece of right parietal bone cut. P. W. 4 is Constable Srikant Verma, who brought Sohan Lal to P. H. C. Tambaur and got him admitted there at 1 a. m. P. W. 5 Jugal Saran is the Constable who brought articles of this case from P. S. Tambaur to Sadar Malkeana. He thereafter deposited the same in the office of the Chief Medical Officer, Sitapur. P. W. 9 is Shambhu Dayal in whose presence Indra Jeet was arrested and thereafter Kanta was recovered at the pointing out of Indra Jeet. P. W. 10 is Manohar Lal, Head Constable of P. S. Tambaur, who registered the cage and thereafter made an entry in the General Diary. P. W. 11 is Bhabbu in whose presence the bloodstained as well as plain earth had been taken and sealed. P. W. 12 Badri Prasad Tewari, is the Investigating Officer. He conducted investigation and thereafter submitted charge sheet. P. W. 13 is Mahesh Prasad who brought the dead body of Sohan Lal to the Mortuary. P. W. 14 is Constable Raghunandan Prasad Pandey who brought special report from P. S. Tambaur to District Sitapur. P. W. 15 Jugal Saran Constable brought the bloodstained and plain earth, Kanta etc. from Sadar Malkhana to the office of the Chief Medical Officer, Sitapur - P. W. 16 is Om Prakash Srivastava who is Clerk in the office of the Chief Medical Officer. He stated that the articles were sent to Agra for chemical examination. P. W. 17 Paras Ram is the Constable Incharge of Sadar Malkhana. He proved the arrival and departure of the articles of this case. ( 4 ) ON the other hand, the accused denied the prosecution case and stated that the land in dispute on which he was erecting his Tatial belongs to his grandfather Ram Din. He stated that Sohan Lal reached there and he demolished the Tatial which was erected by him and also started taking his bullock to the cattle pound. ( 4 ) ON the other hand, the accused denied the prosecution case and stated that the land in dispute on which he was erecting his Tatial belongs to his grandfather Ram Din. He stated that Sohan Lal reached there and he demolished the Tatial which was erected by him and also started taking his bullock to the cattle pound. It is alleged that he (Sohan Lal) was armed with Bhali and on his protest he gave a Bhali blow and the accused then plied his Kudal causing injuries on the head of Sohan Lal. The learned Addl. Sessions Judge Sitapur, by his order dated 28-9-1978 held that the prosecution has successfully proved the guilt of accused Indra Jeet and, therefore, he convicted the appellant disbelieving the defence case and holding that the defence has failed to prove its case. Aggrieved by the said judgment and order the appellant filed the present appeal. We have heard the learned counsel for both the sides at great length. ( 5 ) LEARNED counsel for the appellant tried to challenge the prosecution story and contended that the prosecution evidence is not reliable and further that the prosecution witnesses are partisan witnesses. He further tried to assail the prosecution case on the basis of minor discrepancies which are found in the statements of the witnesses regarding the place of occurrence, place where Kanta was kept etc. We have perused the statements of the witnesses and in our opinion the learned trial Judge committed no illegality in believing the testimony of Ram Lal P. W. 1 whose testimony was fully supported and corroborated by the statement of P. W. 6 Ramai, P. W. 7 Pyare Lal and P. W. 8 Sripal. The medical report also corroborates the testimony of the eye-witnesses and the learned Sessions Judge after considering the evidence has given cogent reasons for accepting the same. On behalf of the defence there is no dispute about the place and time of the incident. A counter case was set up about the manner of assault but there is nothing on record on which basis it can be said that the defence case is worth believing. In the absence of any evidence it may be very difficult to believe the defence story. A counter case was set up about the manner of assault but there is nothing on record on which basis it can be said that the defence case is worth believing. In the absence of any evidence it may be very difficult to believe the defence story. However, after perusing the evidence on record we reiterate and agree with the conclusions of the trial Judge that the prosecution has established beyond reasonable doubt that the appellant is the person who committed the crime. The main contention of the appellants counsel is that the offence as alleged and proved by the prosecution fails under Section 304, Part II, I. P. C. and not Section 302, I. P. C. According to the contention of the learned counsel for the appellant in order to bring the case within the ambit of Part III of Section 300, I. P. C. it must be proved that there was an intention to inflict that particular injury which in the ordinary course of nature was sufficient to cause death. On the other hand, the contention of the Government Advocate is that the appellant gave a Kanta blow on the hand of the deceased which was found to be sufficient in the ordinary course of nature to cause death, therefore, the case falls under Section 302, I. P. C. He relied upon the case of Nissa Singh v. State of Punjab, AIR 1958 SC 465 : (1958 Cri LJ 818): ( 6 ) WE have considered this point but we are unable to accept the argument of the Government Advocate. On the other hand, we find force in the contention of the appellants counsel. It is not disputed that Parts I and II of Section 300, I. P. C. will not be attracted in this case. As regards Part III of Section 300, I. P. C. is concerned it is necessary to hold that the appellant intended to cause such injury as was sufficient to cause death and looking to the totality of the circumstances of the case we are of the opinion that it would not be possible to come to the conclusion that when the appellant gave Kanta blow then he intended to cause such injury as was sufficient in the ordinary course of nature to cause death. It is not disputed that the appellant gave only one Kanta blow on the head of the deceased and there was no repetition of the Kanta blow, but only on this basis it cannot be presumed that he had no intention to kill the deceased, but looking to the other circumstances and evidence if we cannot say definitely that the appellant intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death than in our opinion the offence would not fall under Section 302, I. P. C. The principle enumerated in the case of Virsa Singh (supra) is no doubt the guidelines but in the said case also the Honble Supreme Court observed that it must be proved that there was intention to inflict that particular bodily injury, i. e. that the same kind of injury was intended. In another case of Jagrup Singh v. The State of Haryana, AIR 1981 SC 1552 : (1981 Cri LJ 1136) the Honble Supreme Court after considering the principle enumerated in Virsa Singhs case came to the conclusion that the case falls under Section 302 (304?) Part II, I. P. C. because it cannot be conclusively held that the appellant intended to give such bodily injury. The Honble Supreme Court further took a view that no doubt a blow from the blunt side of Gandhala has been given with force on the head but that by itself is not sufficient to respond an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. The relevant observations are as under at Pages 1139 (of Cri. LJ): -"if a man is hit with the blunt side on the head with sufficient force, it is bound to cause death. There can be no doubt that it was used with certain amount of force because there was cerebral compression. But that by itself is not sufficient to raise any inference that the accused intended to cause such bodily injury as was sufficient to cause death. He could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. The matter, therefore, does not fall within clause Thirdly of Section 300 of the Code. He could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. The matter, therefore, does not fall within clause Thirdly of Section 300 of the Code. "learned counsel for the appellant further cited a case: Chand v. The State of U. P. ( AIR 1972 SC 955 ) in which the Honble Supreme Court in similar circumstances held that the case falls under Section 304, Part II and not under Section 302, I. P. C. In the case of Chand (supra) the dispute arose out of the dispute about some piece of land on which one Sadi Hasan was raising a new Purdah wall. All the seven accused armed with lathis came there and stopped the construction of the wall. However, on the protest of Sadi Hasan all of them threatened him to kill and raised their lathis. It is alleged that Sadi Hasan and others then ran away but they were chased and finally assaulted in the house. The High Court convicted the appellant under Section 304, Part I. I. P. C. but the conviction of the appellants was altered by the Honble Supreme Court under Section 304, Part II, I. P. C. ( 7 ) IN another case: Randhir Singh v. State of Punjab, AIR 1982 SC 55 : (1982 Cri LJ 195) the appellant gave a blow with a Kassi on the head of the deceased who died later on. The Honble Supreme Court altered the conviction under Section 304, Part II , I. P. C. after making the following observations at page 196 (of Cri LJ):-"in our opinion having regard to the totality of circumstances, viz. there is only one injury, that the weapon was not carried by the appellant in advance, that there was no premeditation, that he was a young college going boy, that there was some altercation between the deceased and his father and that the death occurred nearly after six days, one can only say that the appellant must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. Under these circumstances, in our opinion, the appellant is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years. Under these circumstances, in our opinion, the appellant is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years. "in another case: Kulwant Rai v. State of Punjab, AIR 1982 SC 126 the Honble Supreme Court made the following observations at page 126 (of AIR):-"the question is in the circumstances in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, part 3 of Section 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall under Section 304, Part II Penal Code. " ( 8 ) AFTER considering the above mentioned principle of law it is at this stage necessary to recall the circumstances in which the appellant is alleged to have given one blow with Kanta. The facts alleged and held proved are that the appellant was erecting a Tatial by digging Nali. Sohan Lal deceased asked him not to do so and then the appellant started abusing him. It is said that at that time a Kanta was kept near the appellant and whole altercation was going on Sohan Lal tried to demolish Tatial. It is said that when Sohan Lal tried to demolish. Tatial then on the spur of moment the appellant picked up the Kanta and gave one Kanta blow on the head of Sohan Lal and ran away. ( 9 ) IT is not disputed that the appellant had no dispute or enmity with Sohan Lal deceased. In fact no malice has been alleged against the appellant. There is no evidence on record to show that the appellant came armed with Kant or kept the said Kanta there in advance. It is also proved that there was no premeditation. In fact no malice has been alleged against the appellant. There is no evidence on record to show that the appellant came armed with Kant or kept the said Kanta there in advance. It is also proved that there was no premeditation. There was altercation between the appellant on the one hand and the deceased on the other hand before the said incident and the appellant only gave a Kanta blow when Sohan Lal tried to demolish the Tatial erected by him. It is not disputed that the appellant is a young man of 24 years of age and after altercation and when Sohan Lal tried to demolish the Tatial then on the spur of moment he gave a Kanta blow and ran away. There was no repetition of blow and the death occurred the next day in the morning. It cannot also be overlooked that admittedly no medical aid could be provided to the deceased Sohan Lal as the doctor was not available at P. H. C. , Tambaur. The decesased was admitted to P. H. C. Tambaur at about midnight but he was attended only by the Compounder. It is also not conclusively proved that the land on which Tatial was erected by the appellant belongs to Sohan Lal deceased because no documentary evidence regarding acquisition of the land came forth from the prosecution side. According to the prosecution case itself the appellant was erecting Tatial at a distance of 20 paces from the Ghari of Sohan Lal. ( 10 ) IN the background of the above facts and after considering the evidence on record and the circusmtances mentioned above we can only say that the appellant must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. In these circumstances we are of the opinion that the case would fall under Section 304, Part II, I. P. C. and, therefore, the appellant is held guilty of the offence under Section 304, Part II, I. P. C. ( 11 ) IN the result, the appeal is partly allowed. The conviction of the appellant is altered from Section 302, I. P. C. to one under Section 304, Part II, I. P. C. The sentence of life imprisonment is reduced to rigorous imprisonment for a period of five years. The appellant is on bail. The conviction of the appellant is altered from Section 302, I. P. C. to one under Section 304, Part II, I. P. C. The sentence of life imprisonment is reduced to rigorous imprisonment for a period of five years. The appellant is on bail. He shall surrender forthwith to serve out the sentence as reduced by this Court. All the sentences shall run concurrently. ( 12 ) THE Chief Judicial Magistrate, Sitapur, will report compliance within two months. Appeal partly allowed. .