JUDGMENT Mr. A.G. Tripathi, J. - This appeal has been preferred against judgment and order dated 31.7.1979 passed by Shri Khem Karan, the then IV Addl. District Judge, Jalaun at Orai, whereby the appellant Bhagat alias Gaya Prasad was held guilty under Section 302, I.P.C. and was sentenced to imprisonment for life. 2. The appellant, Bhagat alias Gaya Prasad was also held guilty under Section 24 of the Cattle Trespass Act and was sentenced to four months R.I. The appellants, Munna, Ram Das and Chiranji were held guilty under Section 24 of the Cattle Trespass Act and sentenced to four months R.I. However, appellant Munna, Ram Das and Chiranji were acquitted of the Charge under Section 302 read with Section 34 I.P.C. Admittedly, there is a forest known as Tinghar forest within police station Kalip district Jalaun. Deceased Jageswar was Forest Guard of that forest. Mahadeo, P.W. 1, Badri P.W. 2 and Hari Ram P.W. 3 were watchers of the same forest. They were all Government servants of the forest department. 3. In brief, the prosecution case was that on 10.2.77 at about 5 p.m. Jageshwar Misra, (deceased) Forest Guard and watchers, Mahadeo, Hari Ram were doing guard duty moving inside Tinghara forest. At a place some digging operations were going on for new plantation where the watcher, Badri, was looking after that work. When the Forest Guard, Jageshwar Misra and other watchers reached that spot they found that four appellants were grazing their goats at that place and were cutting the branches of Rozwa trees and damaged the digging already done. Finding this damage to the trees and digging for plantation they directed the goats to be rounded up and taken to cattle pond. When the goats were surrounded for being taken to cattle pond the appellants surrounded the forest Guard, Jageshwar Misra. It is alleged that appellant, Bhagat alias Gaya Prasad gave a lathi blow on the head of Jagehswar Misra who fell down and was profusely bleeding. The appellants then forcibly drove away their goats to their houses. 4. Jageshwar Misra was then taken to hospital on a cot at Kalpi. F.I.R. was lodged by P.W. 1, Mahadeo at Police Station Kalpi at 9.05 p.m. the same night on 10.2.1977. The appellants then forcibly drove away their goats to their houses. 4. Jageshwar Misra was then taken to hospital on a cot at Kalpi. F.I.R. was lodged by P.W. 1, Mahadeo at Police Station Kalpi at 9.05 p.m. the same night on 10.2.1977. The injured Jageshwar Misra was shifted from Kalpi to district hospital Orai where in the same night at 12.25 a.m. Jageshwar Misra died on account of the injuries caused. Initially the case was registered under Sections 307 and 323 I.P.C. and 24 of the cattle Trespass Act. Later on it was converted into 302 I.P.C. 5. The post-mortem examination of the dead body of Jageshwar Misra was conducted on 11.2.1977 at 3 p.m. by Dr. M.P. Gupta, P.W. 8 and following anti-mortem injury was found on his body: (i) Lacerated wound 8cm. X 1cm X brain deep on middle of head longitudinally along the saggital line lower and of the wound lying on the middle of occipital region 8cm above upper part of posterior of neck clot of blood in the region of wound. On internal examination it was found that there was fracture of right partietal bone just parallel to saggital sutur and upper end of reaching in frontal bone 3cm above the right eye bow in the line of 2cm to the root of nose. The posterior end of parietal bone reaching the occipital bone taking cut 3cm. below the right parietal ominucle and reaching towards temporal region laceration of upper border of right parisetal lobe in the centre of headabour 5cm. in length. 6. The investigation was taken up by Arshad All P.W. 6. He-proved the chick F.I.R. Ex Ka 4 and G.D. entries, Ex. Ka. 5. He recorded the statement of the reporter, Mahador, P.W. 1 in the Kalpi police station. He went to the civil hospital Kalpi and found that the injured, Jageshwar Misra was shifted to the district Hospital Jalaun. He sent one constable alongwith the reporter on the spot, reached the spot next day and recorded the statement of Hari Ram P.W. 3. He also inspected the spot and prepared site-plan, Ex. Ka-7. He took in possession blood stained and plain earth, kept the same in separate sealed containers and prepared the memo. Ex. Ka-6. He also took in possession the branches of the trees which were cut and given in the suppradegito Hari Ram. The accused had absconded. He also inspected the spot and prepared site-plan, Ex. Ka-7. He took in possession blood stained and plain earth, kept the same in separate sealed containers and prepared the memo. Ex. Ka-6. He also took in possession the branches of the trees which were cut and given in the suppradegito Hari Ram. The accused had absconded. He proved the material Exs. 4 and 5, the blood stained earth and plain earth. 7. On 11.2.1977 the case was converted into Section 302, I.P.C. and G.D. entries were made which were proved by him. Extract of the said G.D. entries is Ex. Ka-9. Thereafter the investigation of the case was taken up by the Station Officer, Sri R.K. Singh. He completed the investigation and submitted the charge sheet on 10.3.1977. 8. The appellants had pleaded not guilty. Appellant, Bhagat alias Gaya Prasad was charged under Section 302, I.P.C. (simplicitor) and under Section 24 of The Cattle Trespass Act. The remaining appellants were charged under Section 302/34 I.P.C. and also under Section 24 of The Cattle Trespass Act. 9. The appellant, Ram Das had also lodged F.I.R. earlier in time at 6.45 p.m. at Police Station Kalpi on 10.2.1977 and gave a different version of this incident. This F.I.R. has been proved by him and is Ex. C-I on record. According to this F.I.R. Forest Guard,Jageshwar Misra was armed with a gun and the watchers, Mahadeo and Badri were trying to round up the goats. The appellants objected to it as they pay fee for grazing the goats, whereupon Jageshwar Misra fired by injuring two goals. The reporter, Rant Das escaped. He named the witnesses in the F.I.R. as Rafiq, Chhotey Lal and Ram Shankar. 10. The prosecution in support of its case examined eight witnesses P.W. 1 Mahadeo P.W. 2 Badri, P.W. 3 Hari Rain are eye witnesses. P.W. 4, Sri Krishana, proved panchayatanma of the dead body of Jageshwar Misra, Ex. Ka-2. P.W. 5, Sri Rant Kishore Singh, Station Officer, had submitted the charge-sheet after completing the investigation P.W. 6 Arshad Ali is the Investigating Officer, who has done most of the investigation in this case and proved blood stained and plain earth as well as the site plan, Ex. Ka-7, copy of G.D. entries Ex. Ka-9 etc. P.W. 7 Ram Daur Singh has scribed the chik F.I.R. and made G.D. entries and proved the same P.W. 8. Dr. Ka-7, copy of G.D. entries Ex. Ka-9 etc. P.W. 7 Ram Daur Singh has scribed the chik F.I.R. and made G.D. entries and proved the same P.W. 8. Dr. M.P. Gutpa had conducted the post-mortem examination of the dead body of deceased, Jageshwar Misra and proved the postmortem report, Ex. Ka-10. The report to chemical examination is also proved on record as Ex. Ka-11, witness Rant Daur Singh was also exanuned as C.W. 1, who proved Ext. C-1, the report of Ram Das. The statement of the appellants were also recorded under Section 313 Cr. P.C. inwhich they have stated that they have been falsely implicated on account of enmity. They did not adduce any evidence in defence. 11. After examining the evidence the learned Addl. Sessions Judge found appellants, Bhagat alias Gaya Prasad guilty under Section 302 I.P.C. and 24 of the Cattle Trespass Act. The remaining appellants, Munna, Ram Das and Chiranji were not found guilty of the charge under Section 302/34 I.P.C. and were acquitted of the same. However, they were found guilty under Section 24 of the Cattle Trespass Act and were accordingly convicted and sentenced. Aggrieved by the judgment and order of the learned Addl. Sessions Judge the present appellants have preferred this appeal . 12. In support of the charges three witnesses of fact were examined. They are eye witnesses. P.W. 1 Mahadeo is a watcher and was on patrol duty along with Jageshwar Misra. He stated that at the time of occurrence he was on patrol duty along with Jageshwar Misra and Hari Rant, P.W. 3, while patrolling they reached near the place where digging operations for new plantation were going on. Badri was looking after the digging operations. They found that the appellants were grazing their goats on that spot where digging operations were in progress and earth was dug out in a particular area for new plantation. The goats were also damaging the earth dug out and the appellants had cut the branches of Rewze trees damaging the trees to a greater extent. Finding all these damage done to the forest Jageshwar Misra, forest guard, directed the witness and other watchers to collect the goats and look them to cattle pound. Thereupon the witness and other watchers were rounding up the goals. Finding all these damage done to the forest Jageshwar Misra, forest guard, directed the witness and other watchers to collect the goats and look them to cattle pound. Thereupon the witness and other watchers were rounding up the goals. Then the appellants exhorted to kill Jageshwar Misra and then appellant Bhagat alias Gaya Prasad gave a latlii blow to Jageshwar Misra from behind. Jageshwar Misra fell down and became unconscious and then was taken to Hospital at a cot arranged by the witness and other watchers. 13. The witness admitted in the cross examination that six months earlier the appellant Murata and Chiranji were also prosecuted for beating the victim, Jageshwar Misra. The witness also admitted that the appellants were grazing their cattle and goats on licence being given by the forest department. They were paying Rs. 1'h for one coe for a year. For goat.. nothing was charged. The goats were being grazed free. He also admitted that the appellants were grazing their goals inside the forest on having legal licence but they had no right to cut the branches of trees and damage digging operations for new plantation. At the time of occurrence the appellants were grazing about 50 goats. They had cut the branches of rewza trees from the height of 15 to 20 feet. 14. However, the witness admitted that in his statement under Section 161 Cr.P.C. he had not stated that the appellants had exhorted to kill Jagehswar Misra. He also admitted that he had not mentioned this fact in the F.I.*R. Ex. Ka-1. He had simply mentioned that the appellants surrounded Jageshwar Misra and only appellant, Bhagat alias Gaya Prasad gave a lathi blow. He further stated that he had not seen Rafiq on the spot. P.W. 2 Badri, who was Meth on duty at that time looking after digging operations for new plantations, also stated the same facts that the appellants were cutting the branches of Rewza trees for grazing their goats. The Forest Guard, Jageshwar Misra alongwith the watchers, Mahadeo and Hari Ram came on the spot and directed that the goats be rounded up for taking to cattle pond. When the watchers started rounding up the goats the appellants surrounded Jageshwar Misra and exhorted to kill. Gaya Prasad gave a lathi blow and Jageshwar Misra fell down unconscious. The Forest Guard, Jageshwar Misra alongwith the watchers, Mahadeo and Hari Ram came on the spot and directed that the goats be rounded up for taking to cattle pond. When the watchers started rounding up the goats the appellants surrounded Jageshwar Misra and exhorted to kill. Gaya Prasad gave a lathi blow and Jageshwar Misra fell down unconscious. In the cross examination he admitted that he had not stated before the Investigating Officer under Section 161 Cr.P.C. that the appellant had exhorted to kill Jageshwar Misra. He had simply stated that the appellants surrounded Jageshwar Misra and only Bhagat, appellant, had given a lathi blow. P.W. 3, Hari Ram, also came out with the same story. He was also one of the watchers and was on patrol duty along with Jageshwa r Misra. He had not stated that the appellants had exhorted to kill Jageshwar Misra and had simply stated that the appellant, Bhagat had given lathi blow to Jageshwar Misra from behind when the goats were rounded up for being taken to cattle pound. However, in the cross examination he had stated that Rafiq had come on the spot after the occurrence. 15. In this way it is manifest on record that three eye witnesses are natural in their version, who were present on the spot at the time of occurrence. They have given consistent statements regarding lathi blow given by the appellant, Bhagat to Jageshwar Misra who fell unconscious and died in the same night in the district hospital Jalaun. There. is no discrepancy in the statement of the three witnesses so far as the narration given by the prosecution in the F.I.R. is concerned. Nothing has come out in this cross examination to discrete their testimony on this point that Jageshwar Misra was given Lathi blow by appellant, Bhagat alias Gaya Prasad, from behind when the goats were being rounded up for taking to cattle pound. 16. A cross F.I.R., Ex. C-2, of the same version was lodged by Ram Das, appellant, regarding the same incident earlier in time at the same police station Kalpi. In that F.I.R. it was alleged that the appellants were grazing their cattle for which they had licence. The forest Guard, Jageshwar Misra anned with gun and watchers, Badri and Mahadeo threatened to take the goats to cattle pond. In that F.I.R. it was alleged that the appellants were grazing their cattle for which they had licence. The forest Guard, Jageshwar Misra anned with gun and watchers, Badri and Mahadeo threatened to take the goats to cattle pond. Thereupon a scuffle took place and Jageshwar Misra fired his gun twice hitting two goats. The appellants had given a different version in this F.I.R. and the fact that some occurrence took place at 5 p.m. on the spot is admitted. The appellants did not adduce any evidence in defence to prove the cross version given in this F.I.R. no goat was medically examined by any veterinary doctor. No other evidence has been adduced to show that the Forest Guard, Jageshwar Misra had fired his gun at the time of occurrence. 17. Thus, it is proved beyond doubt that Jages hwar Misra, Forest Guard, and watchers, Mahadeo & Hari Ram and Meth, Badri, were rounding up the goats for to king to cattle pound, where upon the appellant, Bhagat alias Gaya Prasad had given a lathi blow to Jageshwa r Misra on his head who fell down unconscious and died later in the night in district hospital. The Trial Court has convicted only appellant, Bhagat alias Gaya Prasad under Section 302 I.P.C. sentencing him to life imprisonment, other appellants were acquitted of the charge under Section 302 read with Section 34 I.P.C. However, all the four appellants were convicted under Section 24 of the Cattle Trespass Act to undergo rigour imprisonment for four months. 18. Learned Counsel for the appellants emphatically argued that it was not a case under Section 302 I.P.C. Appellant Bhagat alias Gaya Prasad had no intention to kill Jageshwar Misra. A single lathi blow was given just to prevent the goats to be taken to cattle pound. The learned Counsel for the appellants further argued that in any case even if the facts are established that Gaya Prasad had given a lathi blow it could be only a case under Section 304 I.P.C. 19. The Trial Court itself had acquitted the remaining appellants of the charge under Section 302 read with Section 341.P.C. The allegation made by the prosecution was that the remaining appellants had exhorted to kill Jageshwar Misra and only then Gaya Prasad had given a lathi blow. This part of the story has been disbelieved by the Trial Court. The Trial Court itself had acquitted the remaining appellants of the charge under Section 302 read with Section 341.P.C. The allegation made by the prosecution was that the remaining appellants had exhorted to kill Jageshwar Misra and only then Gaya Prasad had given a lathi blow. This part of the story has been disbelieved by the Trial Court. P.W. 1 Mahadeo had admitted that he has not deposed before the Investigating Officer under Section 161 Cr.P.C. that the said appellants had exhorted. Similarly P.W. 2 Badri and P.W. 3, Hari Ram, also admitted that they had not stated before the Investigating Officer that the remaining appellants had exhorted Bhagat alias Gaya Prasad to kill Jageshwar Misra. 20. The Investigating Officer, Sri Arshad Ali, P.W. 6 proved the statements under Section 161 Cr. P.C. in which no story of exbortation was stated. P.W. 8 Dr. M.P. Gupta admitted that the injury caused on the head of the deceased, Jageshwar Misra was sufficient to cause his death. However, he admitted in cross examination that if proper treatment could have been given in time his life could be saved. 21. Considering the manner in which the occurrence had taken place and the nature of injury caused, it appears that the appellant, Bhagat alias Gaya Prasad had given a lathi blow on the head of Jageshwar Misra when he directed that the goats be rounded up for taking to cattle pound. Appellant, Gaya Prasad had no intention to kill Jageshwar Misra, only a single blow was given. The nature of injury caused is evident from the post-mortem report. Since the parietal bone was fractured if that resulted in death of Jageswar Misra on account of non-availability of proper medical aid in time as admitted by Dr. M.P. Gupta. We are, therefore, satisfied from the evidence on record and circumstances of the case that appellant, Bhagat alias Gaya Prasad had no intention to kill Jageshwar Misra. One lathi blow was given, therefore, it could not be a case under Section 302 I.P.C. but certainly it falls under Section 304 (Part II) I.P.C. The intention was only to cause bodily injury which ultimately proved fatal. It was an act by which the death was caused was done with knowledge that the act was likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. It was an act by which the death was caused was done with knowledge that the act was likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. 22. The next point argued on behalf of the appellants was that no charge under Section 24 of the Cattle Trespass Act was made out. It was argued that the goats were not rescued after seizure. The seizure of the goats was not complete and, therefore, charge under Section 24 of the Cattle Trespass Act could not be made out. It was further argued that the appellants had a licence to graze their goats in the forest free of any charges. The goats were not liable to be rounded. up for taking to cattle pound. There was no damage done to the forest. From the evidence on record as stated by P.W. 1, Mahadeo, P.W. 2 Badri and P.W. 3 Hari Ram, it is established that the appellants were grazing their goats inside the forest. They had cut the branches of Rewza trees from the height of 15 to 20 feet damaging the trees. The goats were also damaging the land dug out for new plantations. In this way the goats which were damaging the trees and the land were liable to seizure. Once seizure is there, if the appellants caused rescue to the cattle, they are liable to punishment under Section 24 of the Cattle Trespass Act, 1971. The provisions of Section 24 of the Cattle Trespass Act are reproduced as under: " 24. Penalty for forcibly opposing the seizure of cattle or rescuing the same : Whoever forcibly opposes the seizure of cattle to be seized under this Act and whoever rescues the same after seizured either from a pound or from any person taking or about to take them to a pound, such person being near at hand and acting under the powers conferred by this Act, shall on conviction before a Magistrate, be punished with imprisonment for a period not exceeding six months, or with fence not exceeding five hundred rupees, or with both." 23. It is established from the statement of witnesses that the Forest Guard, Jageshwar Misra had directed the goats to be rounded up for taking to cattle pound as they were damaging the land dug for new plantation and the appellants had cut the branches of Rewza trees for grazing the goats. In his way, the witnesses had started rounding up the goats whereupon the appellant, Bhagat alias Gaya Prasad, had given a ladii blow to Jageshwar Misra. Actually the seizure of the goats was there. The moment the witnesses started rounding up the goats for taking to cattle pound, it cannot be argued that there was no seizure in this case. The seizure of the goats was there the moment they are being rounded up for taking to cattle pound. The intervention of the appellants once the goats were being rounded up was not justified in any case as they were damaging the forest. The appellants had, no doubt, a right to graze their goats free of charge in the forest, but they have no right to damage the branches of Rewza trees and the place dug out for new plantation. Therefore we are convinced that the charge under Section 24 of the Cattle Trespass Act is also proved against all the appellants and they were rightly convicted for the same. 24. However, on the point of sentence after examining the facts and circumstances of the case we are of the opinion that seven years rigorous imprisonment under Section 304 (Part II) of the Indian Penal Code to Bhagat alias Gaya Prasad will be sufficient to meet the end of justice. We are further of the opinion that under Section 24 of the Cattle Trespass Act, in the circumstances of the case it will be sufficient now to impose a fine of Rs. 500/only on each of the appellants and in default of payment of fine they shall undergo simple imprisonment for three months. 25. The appeal is allowed in part. The conviction of the appellant, Bhagat alias Gaya Prasad under Section 302, I.P.C. sentencing him to imprisonment for life is set aside. Instead he is convicted and sentenced to undergo seven years rigorous imprisonment under Section 304 (Part 11) of the Indian Penal Code. The bail bonds of Bhagat alias Gaya Prasad are cancelled. He shall surrender forthwith to serve out the sentence awarded to him. Instead he is convicted and sentenced to undergo seven years rigorous imprisonment under Section 304 (Part 11) of the Indian Penal Code. The bail bonds of Bhagat alias Gaya Prasad are cancelled. He shall surrender forthwith to serve out the sentence awarded to him. After his surrender his hail bonds and sureties shall stand discharged. The sentence of imprisonment under Section 24 of the cattle Trespass Act to appellants, Bhagat alias Gaya Prasad, Ram Das, Munna and Chiranji is set aside. Instead they are convicted under Section 24 of the Cattle Trespass Act and arc sentenced to paya fine of Rs. 500/-(Rupees five hundred only) each to be deposited within two months and in default of payment of fine they shall undergo three months simple imprisonment. Their bail bonds and sureties are discharged.