G. P. MATHUR, J. Than Singh has filed this appeal against his conviction under Section 302, IPC and sentence of imprisonment for life imposed by the Sessions Judge, Rampur, by judgment and order dated 14-7-1979 passed in S. T. No. 137 of 1978. 2. The case of the prosecution, in brief, is that the appellant Than Singh and PW 2 Ram Singh are real brothers, being sons of DW 1 Sohan Lal, PW 1 Smt. Phula Devi is the wife of the deceased Mohan Lal, who was real brother of Sohan Lal aforesaid. PW 6 Balak Ram is the sisters husband of Sohan Lal. The house of the deceased Mohan Lal and his brother Sohan Lal are adjoin ing to each other in Mohalla Sahukara. It is alleged that at about 7. 30 a. m. on 10-3-1978 Mohan Lal was getting the foundation dug for construction of the boundary wall of his house which was objected to by the appellant Than Singh. Mohan Lal said that he was making the construction on his own land and he had no right to raise any objection. On this Than Singh gave two blows with Tabal on the head of Mohan Lal who fell down unconscious on the spot. A report about the incident was lodged by Smt. Phula Devi on to-3-1978 at 8 a. m. at P. S. Bilaspur which is two furiongs from the place of occurrence. The injured was taken to Primary Health Centre, Bilaspur, where he was medi cally examined at 9. 15 a. m. and the doctor found two injuries on his head Mohan Lal, however, succumbed to his injuries and the case was converted to Section 302, IPC. 3. After usual investigation charge-sheet was submitted against the appellant under Section 302, IPC. The prosecution in support of its case exami ned in all 12 witnesses. The defence of the accused was that when he asked the labourers not to dig foundation Mohan Lal was present there armed with a gun and he had said that the foundation would be dug at that very place. On the instigation of Ram Singh, Mohan Lal pointed the gun towards him and then he used lathi in self-defence. He examined one witnesses, namely, Sohan Lal, in support of his defence. The learned Sessions Judge believed the prosecution case and convicted and sentenced the appellant as mentioned earlier. 4. On the instigation of Ram Singh, Mohan Lal pointed the gun towards him and then he used lathi in self-defence. He examined one witnesses, namely, Sohan Lal, in support of his defence. The learned Sessions Judge believed the prosecution case and convicted and sentenced the appellant as mentioned earlier. 4. PW 1 Phula Devi is the wife of the deceased Mohan Lal and is also real aunt of the appellant. She has stated that at about 7,30 a. m. on the date of the incident Mohan Lal was digging foundation for making construction which was objected to by the appellant Than Singh. Mohan Lal said that he had no right to raise any objection on which the appellant gave two blows with Tabal on his head. In her cross- examination she has stated that Than Singh was living separately from his father and his house was towards southern side of his fathers house. She has further stated that the court-yard of all of them was towards eastern side. Nothing material has come out in her cross-exami nation which may discredit her testimony. Since the incident took place just in front of her house her presence on the spot is most natural. Her version finds corroberation from the FIR which was lodged by her within half an hour of the occurrence. In our opinion she is a reliable witness. 5. PW2 Ram Singh has stated that he lives in the same compound. At about7. 30 a. m. on 10-3-1978 Mohan same compound. At about 7. 30 a. m. on 10-3-1978 Mohan Lal was digging foundation which was objected to by the appellant. Thereafter the appellant assaulted the deceased by giving two blows with Tabal. It may be noticed that this witness is the real brother of the appellant and nothing material has come out in his cross-examination which may discredit his testimony. The only thing elicited by the defence is that his grandfather Tulsi Ram had executed a will of his property in his favour but the said land was still in the possession of his grandfather. How ever, we are of opinion that the mere fact that the grand father of the appellant had executed a will in favour of this witness cannot lead to an inference that he would falsely implicate his real brother in a murder case. In our opinion he is a truthful and reliable witness. 6. How ever, we are of opinion that the mere fact that the grand father of the appellant had executed a will in favour of this witness cannot lead to an inference that he would falsely implicate his real brother in a murder case. In our opinion he is a truthful and reliable witness. 6. PW 6 Balak Ram has stated that he had come to Mohan Lais place for taking milk when the accused came there and asked the deceased not to Jig foundation. When the deceased said that it was his land and he would definitely dig foundation there the accused gave two Tabal blows on his head. In his cross- examination he has stated that in his presence Sohan Lal DW 1 had not asked the deceased not to dig the foundation there nor the deceased was carrying a gun. This witness is the husband of the sister of the father of the appellant and being closely related there no reason why he would falsely implicate the appellant. His testimony is also reliable and trustworthy. 7. PW 7 Ram Kumar has stated at about 7. 30 a. m. he had gone to pur chase gram from Nathoo Bhooj when he saw the incident, he was narrated the talks which took place between the appellant the and deceased and has also stat ed, that the appellant gave two blows with Tabal 90, the head of the deceased. In his cross-examination he has stated that he is the uncle of the appellant. We have carefully examined the testimony of this witness and we are of opinion that the same does not suffer from any infirmity and there is no reason not to place reliance on the same. Thus from the testimony of the four eye-witnesses, PW 1 Phula Devi, PW 2 Ram Singh, PW 6 Balak Ram and PW 7 Ram Kumar, it is conclusively established that the appellant gave two blows with Tabal, on the head of Mohan Lal deceased at 7. 30 a. m. on 10-3-1978. 8. PW 4 Surendra Major, S. L, has proved the chik F. I. R. which was lodged by Smt. Phula Devi at 5 a. m. on 10-3-1978. PW 8 K. K. Singh, S. I. P. S. Kotwali, has stated that he received information about the death of Mohan Lal in the District Hospital at 9. 05 a. m, on 11-3-1978. 8. PW 4 Surendra Major, S. L, has proved the chik F. I. R. which was lodged by Smt. Phula Devi at 5 a. m. on 10-3-1978. PW 8 K. K. Singh, S. I. P. S. Kotwali, has stated that he received information about the death of Mohan Lal in the District Hospital at 9. 05 a. m, on 11-3-1978. Thereafter he went to the mortuary and held inquest on the body of the deceased and also prepared other necessary documents. PW 3 Amir Ahmad has stated that the S. I. had taken blood-stained and plain earth from the spot in his possession and he had put his thumb-impression on the seizure memo, PW 10. Net Ram, constable has stated that he had taken injured Mohan Lal to PHC, Bilaspur, for his medical examination, PW 12 Karun Kumar, Constable, has stated that he had taken the body of the deceased for post mortem examination, PW 11 Mukhtar Singh, S. O. , PW Bilaspur, conducted investigation of the case and has narrated the various steps taken by him after the F. I. R. had been lodged and the case had been registered at the police station. The testimony of these wit nesses corroborates the prosecution case. 9. PW 5 Dr. J. C. Tripathi was the Medical Officer Incharge of PHC. Bilaspur on 10-3-1978. He examined Mohan Lal at 9. 15 a. m. and found the following injuries on his body. " (1) Injury-Lacerated wound 5 cm. x 3/4 cm x bone deep on right side head X 8 cm above rightear. (2) Insised wound 2 cm x 1/2 cm. bone on left side head 3 cm a bove and behind left ear. Injury is blooding profusely. Injuries are under observation. Injury No. 1 caused by hard blunt weapon. Injury No. 2 caused by sharp cutting weapon. Injuries are fresh in duration. " In his cross-examination he had stated that injury No. 2 could not be caused by a lathi. PW 3 Dr. O. N. Gupta conducted post mortem examination on the body of the deceased on 13-3-1978. He found the following ante mortem injuries on the body of the deceased :- " (1) Stitched wound 5 cm. long with four stitches on right side head 8 cm. above right ear. (2) Stitched wound 2 cm. long having two stitches and swelling around 10 cm. x 6 cm. He found the following ante mortem injuries on the body of the deceased :- " (1) Stitched wound 5 cm. long with four stitches on right side head 8 cm. above right ear. (2) Stitched wound 2 cm. long having two stitches and swelling around 10 cm. x 6 cm. on left side head 3 cm. above and behind left ear. " The internal examination revealed the following injuries :- "scalp skull bones (Vertex)-External injuries Nos. 1 and 2 noted, clotted blood 14 cm. x 3 cm. present under injury No. 2. There is depressed fracture of left temporal and left parietal bone present under injury No. 2 Membranes ruptured under fracture, brain lacerated under fracture. " In the opinion of the doctor the death took place as a result of the head injuries. 10. The eye-witness account of the incident finds complete corroboration from the medical evidence on record, thus there cannot be slightest doubt that it was the appellant who gave two blows with Tabal on the head of the deceased. 11. The next question to be considered is as to what offence has been committed by the appellant. Sri O. S. Chaturvedi, has contended that on the facts and circumstances of the present case, the appellant can be held guilty only under Section 304, Part II IPC while the learned state counsel has submitted that in view of the fact that the appellant caused two injuries by Tabal on the head of the deceased, the offence committed by him would be one under Section 302, IPC. 12. The deceased Mohan Lal was medically examined at 9. 15 a. m. on 10-3-1978 by PW 5 Dr. J. C. Tripathi. The injury report Ex Ka 6 prepared by him has been noted in the earlier part of the judgment. The original injury report shows that initially he had described injury No. 2 as lacerated wound. The word "lacerated" was scored out and the word "incised" was subsequently written at that place. He has admitted in his cross-examination that he had initially written injury No. 2 as lacerated wound but after carefully examin ing the injury, it appeared to be incised wound and therefore, be wrote it as incised wound". The word "lacerated" was scored out and the word "incised" was subsequently written at that place. He has admitted in his cross-examination that he had initially written injury No. 2 as lacerated wound but after carefully examin ing the injury, it appeared to be incised wound and therefore, be wrote it as incised wound". He further admitted that he could not say as to whether the rone under the aforesaid injury had been cut or not and that by seeing the injury it did not appear that the underneath bone had been cut. However, he stated that injury No, 2 could not be caused by a lathi. PW 3 Dr. O. N. Gupta, who conducted the post mortem on the body of the deceased has described both the injuries as stitched wound. He found that there was depressed fracture of ten poral and parietal bone and the membranes under the fracture, had been ruptured and the brain had been lacerated. He has clearly admitted in his cross-examination that the injury No. 2 could be caused by a blunt weapon like a lathi and that if an injury is caused by a Tabal, there is bound to be an incised wound over the top of the injuries, statement of PW 3 Dr. O. N. Gupta creates a serious doubt as to whether injury No. 2 was an incised wound. In last his statement to the effect that the said injury could be caused by lathi shows that the same was caused by the blunt side of Tabal. Since Dr. O. N. Gupta had performed the post mortem examination, he was certainly in better position to accurately describe the injuries than PW 5 Dr. J. C. Tripathi, who had initially examined the deceased. It is quite possible that Dr. Tripathi described the said injury as incised wound on account of profuse bleeding, he may also mention here that none of the eye-witnesses have said anything in their statement as to from which side of Tabal injuries were caused to the deceased. Having carefully examined the medical evidence on record we are of the opinion that it has not been established that the appellant used the sharp edge of Tabal while causing injury on the head of the deceased. Having carefully examined the medical evidence on record we are of the opinion that it has not been established that the appellant used the sharp edge of Tabal while causing injury on the head of the deceased. An other noteworthy aspect of the head of the evidence is that both doctors have not stated in their statements to the effect that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. 13. The material on record does not show that the appellant had any motive to commit the crime. The appellant is the real nephew of the deceased PW 1 Smt. Phula Devi (wife of deceased) has admitted in her cross-examination that the deceased had allowed the appellant to use his cattle-shed for tying his own cattle. She has further admitted that the appellant had cultivated the land belonging to the deceased in last kartik (November ). She has categori cally admitted that there was no previous enemity or dispute between the appellant and deceased. It is, therefore, clear that the relations between the appellant and the deceased were quite cordial and there was no ill will of any kind between them. The incident happened all of sudden over digging of foundation by the deceased. The statement of PW 1 Phula Devi shows that there is a pucca house of the deceased Mohan Lal and immediately towards south of that there is a pucca house of Sohan Lal (father of the appellant ). The appellant was residing separately from, his father and his own house was immediately towards south of his fathers house. There was a common courtly-yard of all the parties towards eastern-side but each party was sepa rately in possession over the same. Towards south of appellants house there was cattle shed belonging to the deceased. The deceased wanted to cons truct a wall in order to separate his portion from that of the appellant and for this purpose he was digging foundation. PW 11 Mukhtar Singh, Investigat ing officer of the case has stated that the case was registered in his presence and he immediately proceeded for the spot, where he found some portion dug and also took in his possession blood stained earth. The place from where he took in his possession the blood stained earth has been shown as point a in the site- plan. The place from where he took in his possession the blood stained earth has been shown as point a in the site- plan. This spot where the incident took place appears to be towards eastern side of the cattle shed and thatch of the deceased and immediately towards the south of the portion of the courtyard which was in possession of the appellant. It appears from the evidence on record that partition by metes and bounds had not been affected between the parties and under some private arrangement they were in possession over their respective portions. The appel lant felt infuriated on account of digging of foundation by the deceased as he felt that some portion of his land was being encroached upon by the deceased. The immediate provocation for the attack launched by the appellant was the act of the deceased himself. It was in this state of mind that the appellant gave two blows to the deceased. Taking into consideration the entire facts and circumstances of the case, it cannot be said that the appellant had either any intention to cause death or be intended to cause such bodily injuries as he knew to be likely to cause death of Mohan Lai. Thus, clauses firstly and secondly of Section 300, IPC will not apply. It cannot also be said that the appellant intended to cause the particular injuries which have been found on the body of the deceased nor there is any evidence on record to show that the injuries were sufficient in the ordinary course of nature to cause death. Thus clause thirdly of Section 300, IPC will also not apply. There is no question of clause fourthly being applicable either. Thus the offence committed by the appellant would not be murder as defined in Section 300 IPC and he only be held guilty under Section 304, IPC. Since the necessary intention of causing death or causing such bodily injuries as is likely to cause death, can not be attributed to the appellant, he cannot be held guilty under Section 304, IPC. However, the necessary knowledge that the act done by the appellant was likely to cause death, can be safely inferred. He is liable to be convicted under Section 304-11, IPC, in our opinion, sentence of 7 years R. I. would meet the ends of justice. 14. The appeal is accordingly partly allowed. However, the necessary knowledge that the act done by the appellant was likely to cause death, can be safely inferred. He is liable to be convicted under Section 304-11, IPC, in our opinion, sentence of 7 years R. I. would meet the ends of justice. 14. The appeal is accordingly partly allowed. The conviction of the appellant under Section 302, IPC and sentence of imprisonment for life awarded to him is set aside. He is instead convicted under Section 304-11 IPC and is sentenced to 7 years R. I. He is on bail. He shall surrender forthwith to undergo the sentence imposed upon him. After he has surrendered, his sureties and bail-bonds shall stand cancelled. Appeal partly allowed. .