JUDGMENT K. Narayan, J. - One Subedar was murdered at about 6 p.m. on 5th May, 1983 in village Kabirabad, P. S. Mohammadabad, District Azamgarh, with the injuries of heavy blunt weapon. The appellant was charged under Section 302 I.P.C.for the said murder and has been convicted and sentenced to life imprisonment for the same by judgment and order dated 21.12.1983 in S.T. No. 359 of 1983.. Aggrieved by the same he has come up in appeal. 2. The prosecution story in brief, has been that a litigation was going on between Dabru and his nephew Kanhaiya. In the said evening of occurrence. Dabru was chasing his nephew Kanhaiya, possibly with a mind to give him a beating. Subedar deceased happened to interfere in the case and in order to pacify them, Subedar caught hold of Dabru and told him to let the matter be decided by court and there was no occasion of Marpit. He and others, who also arrived at the spot, held Dabru for some time while he continued to hurl abuses. Thereupon Subedar threatened Dabur by asking others that he should be taken to the police station, also he would not stop. After some time. Dabru pretending to pacify requested the persons who were holding him to let him go and take water. He was naturally released, went in side and came out with a Moosal in hand and gave a blow on the head of the deceased Subedar. Who was sitting with his back towards the direction of coming. Dabru continued to give more blows one after the other and even Moosal was broken into two pieces. Dabur tried to run away towards the North but was over-powered with the help of Shamshad, Goverdhan, Kanhaiya and the informant Chandra Bhan. He was left at the spot and Chandra Bhan prepared the first information report which was sent to the police station. 3. After receiving the first information report from Chandra Bhan, 'Raj Bahadur Dwivedi, S. I. Police took up investigation after registering the case under Section 304 I.P.C., which was subsequently converted into one under Section 302 I.P.C. As usual the dead body of Subedar deceased was sent for post mortem examination. 3. After receiving the first information report from Chandra Bhan, 'Raj Bahadur Dwivedi, S. I. Police took up investigation after registering the case under Section 304 I.P.C., which was subsequently converted into one under Section 302 I.P.C. As usual the dead body of Subedar deceased was sent for post mortem examination. It will not be of much use to narrate all injuries and suffice it would be to say that there were 9 lacerated wounds, one contusion, one abraded contusion and a traumatic swelling upon the person of deceased. The main factor was that the brain under head injury was lacerated on the left side and parietal, frontal and occipital bones were fractured into small pieces. The death in the opinion of Dr. K. S. Misra was due to syneope resulting from ante mortem injuries. 4. The prosecution had examined Shamshad P.W. 1, Smt. Shyama Devi P.W. 2 and Chandra Bhan P.W. 4 as eye witnesses of the account and P.W. 3 Dr. K. S. Misra. Medical Officer, who had conducted post mortem examination. P.W. 5 Shashikant Pandey Head Constable had registered the case and P.W. 6 Raj Bahadur Dwivedi was the Investigating Officer. 5. After considering these evidence and also the material exhibits.that is, blood stained Moosal, the learned Sessions Judge considered the offence proved and, accordingly, recorded conviction and sentence. 6. The learned counsel for the appellant had taken us through the statements of witnesses of fact, namely, P.W. 1 Shamshad, P.W. 2-Smt. Shyama Devi and P. W. 4 Chandra Bhan. 7. After going through these statements the first argument advanced on behalf of the appellant was that the time of death or occurrence was possibly shifted and the evidence could not be relied upon. In this behalf. reliance was placed upon the testimony of medical officer, who had observed that the deceased had semi digested food in his stomach and this position indicated that he should have taken food some 2 or 3 hours before his death. Even if this position is accepted as it is, it does not make any difference. There was no family member of the deceased in the witness box, nor any was examined by defence. The nature of the occurrence as mentioned above was spontaneous. It happened in the way Subedar decided to play a better role in pacifying the dispute between the uncle and nephew and instead lost his life. There was no family member of the deceased in the witness box, nor any was examined by defence. The nature of the occurrence as mentioned above was spontaneous. It happened in the way Subedar decided to play a better role in pacifying the dispute between the uncle and nephew and instead lost his life. P.W. 1 Shamshad, P.W. 2 Smt. Shyamadevi both were throughout in the village itself and had come from nearby place. Smt. Shyamadevi was just grazing her cattle and Shamshad was just Passing through the way. They had no idea as to what Subedar had done of course Chandra Bhan had been with him and had gone together to a market about 3 k.m. away to fetch some tobacco etc. He had been with the deceased only since 4.30 p.m. and he had rightly stated that during this period he had not taken anything. How does it help the defence ? There are lots of time to exhaust 3 hours before death, which will be before 4.30 p.m. also. 8. Though it was shown in the cross- examination of P.W. 1 Shamshad that he is an employee as Power Loom Worker but it has also been shown therein that he had not gone there as he had to sow some 6 or 7 Biswas of sugarcanes. This is not unusual as according to his statement as made out in the cross-examination, Kanhaiya had also not gone for similar work at another Power Loom because he had a hearing in his case on that day. It was also shown in his cross-examination that there is a hand pump of Debra near the place of occurrence. It was suggested that Dehru was not required to go inside house to take a glass of water. If a person represents to take a glass of water he is not to be watched and it is considered that he means to quench his thrust. Though it has been shown in the statement of the witnesses that this hand pump was not in order and even if it was so one could not get suspicious that a person pretending to go to get a glass of water was, in fact, meant to take Moosal to strike upon another person who had practically done nothing wrong to him. The earlier part of the occurrence. The earlier part of the occurrence. Which was neither seen by the deceased nor by P.W. 4 Chandra Bhan has been made out in the cross-examination of P.W. 2 Smt. Shyama Devi. It appears to have been in the form that Dabru was chasing Kanhaiya almost everywhere and he could not be saved even after having gone to the roof of the house from where he had to jump out in order to avoid Dabru. This shows the mind of Dabru at that time. 9. Another marriage in the village had taken place a day before, It was referred to as a fact to reduce the jurisdiction of the Investigating Officer in proceeding with the inquest on the next day. It was noted in the inquest report that for want of adequate arrangement of light, the inquest could not be proceeded with in the night. We fail to understand how another marriage in the village a day before could be a source of light usually either there is sufficient light arrangement in the village itself, if there is an electricity or the petromases are hired, Naturally the former is not the case and later could be of no help was the person who had provided petromaxes would leave by the next morning and in any case none of them is going to stay after Bida of the bride. The suggestion to P.W. 2 Smt. Shyama Devi that there was some scuffle between her husband and Dabru some 3 or 4 years ago, and she had shown that her husband had died some 20 years back. This shows the hollowness of the cross-examination. A suggestion was made to P.W. 4 Chandra Bhan that on the date of the occurrence, the ladies of the house of Dabru were thrashing paddy for the marriage of the daughter of Dabru, which was to take place about a week after and Subedar teased them, whereupon the ladies gave him blows of Moosal. The suggestion was denied and does not obtain various reasons. No such suggestion was made to P.W. I and 2 when they were in the witness box Not a word has been said in support of it in the examination of the accused. If it was really at his instructions, it should have been stated atleast. The suggestion was denied and does not obtain various reasons. No such suggestion was made to P.W. I and 2 when they were in the witness box Not a word has been said in support of it in the examination of the accused. If it was really at his instructions, it should have been stated atleast. Even otherwise the suggestion does not obtain for the simple reason that even if there was some sort of jokes or teasing, it should not have reached the situation in the presence of more than one lady to justify an assault to an extent that not only man would die but Moosal would also be broken into pieces. In that process the blood stained of the deceased were found be on the Dhoti of the lady. The blood stained, of course, may not be very sound evidence as they could not be connected but they were on the dhoti of accused. 10. In result, so far as the facts are concerned there is no occasion for any different conclusion than that arrived at by the learned Sessions Judge. 11. It was next urged on behalf of the appellant that the offence could be considered to be one under Section 304 I.P.C. 12. In order to properly appreciate this argument, the facts to be borne in mind would be that the death in this case was caused by Moosal blows. One of which in the head region. There was, therefore, obviously a death caused by the blows and consequently culpable homicide. As to whether it would amount to murder of not would have to be seen with reference to Section 300 I.P.C. 13. The requisites for culpable homicide to amount to murder is that the act by which the death is caused should have been done with the intention of causing death, or the act causing death should be done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused or it is done with the intention of causing such bodily injury as would be sufficient in ordinary course of nature to cause death or the person committing act knew that it was so imminently dangerous as it must in all probability, cause death. Subject to the exceptions I to V given in Section 300 I.P.C. which have no bearing upon this case, one of the above Four ingredients should be present in order to make the wrong reach the standard of murder. In the instant case, Dabru was enraged due to intervention of the deceased. He had just gone in and brought the Moosal there could not be any occasion for a thought to do away with the life of the deceased. One could feel to have been belittled in the eyes of his nephew at the hands of others, and that might gave him an occasion to show his anger but there could not be any occasion for intention to do away with the life of the deceased. The injury caused, no doubt, has been a heavy one but could it be expected that it could weighed in the mind and any physical force as to when it would cause death and when it would not. With a heavy weapon of blow only, no body could calculate it. It therefore, cannot be said that it was done with the intention of causing such bodily injury as the offender could have known to be likely to cause death or he could have intended to inflict injury which would be sufficient in the ordinary course of nature to cause death nor could he have known that it would be imminently dangerous as in fact has resulted. In fact, the weight enfore of Moosal while striking is so uncertain that no body can say in giving blows thereof that would cause fracture or not or would reach a stage of causing rupture in the brain or will cause only heametome. In view of these circumstances, it cannot be said with certainty that the accused appellant had really committed murder. He should have been, therefore, convicted and sentenced under Section 304 I.P.C. (Part II). 14. The last thing to be considered is the sentence. 15. Considering the above mentioned facts according to which the death has resulted from excess in the injury without any intention of causing death we are of the opinion that a sentence of R. 1. for 8 years shall meet the ends of justice. 16. In result, the appeal -succeeds though in part. The conviction under Section 302 I.P.C. and the sentence of life imprisonment are hereby set aside. for 8 years shall meet the ends of justice. 16. In result, the appeal -succeeds though in part. The conviction under Section 302 I.P.C. and the sentence of life imprisonment are hereby set aside. The appellant shall instead stand convicted under section 304 (Part II) I.P.C. and sentenced to R. 1. for 8 years. He shall serve out the sentence as modified by this Court.