JUDGMENT G.D. Dube, J. - This appeal arises from a judgment and order of Sessions Judge Bulandshahar who has convicted Tejpal under section 302 and Khyali under Section 302 read with 34, I.P.C. and sentenced each of them to undergo imprisonment for life. Khyali is the father of Tejpal. On the date of his statement under Section 313, Cr.P.C. in 1978 he had given his age as 75 years. Tejpal was opined to be 25 years on the date of the statement by the Sessions Judge. 2. The case of the prosecution as unfolded in the First Information Report lodged at 12.15 p.m. on 10.11.1978 was that at about 11.30 a.m., on that date Daulatram brother of Raghubir P.W. 1 was clearing the Nali for taking water in his field situated in village Jungle Pilkhila P.S. Nagaura district Bulandshahar. Khyaliram objected as to why he was clearing Nali near his field. There-upon Daulatram said that unless he cleared the Nali water will not flow to his field. On this simple exchange of words Khyali caught hold of Daulat Ram and Tejpal gave a pharsa blow on his head. On alarm by injured and Raghubir, Banwari Lal, Faiyaz and several others arrived at spot. The assailants ran away. 3. After the occurrence Raghubir went to the Police Station and dictated the First Information Report to the Head Moharrir. Injured Daluatram was taken to Primary Health Centre Kasiyar Kalan, Bulandshahar. He was examined at 12.30 p.m., on 10.11.1978. One incised wound 7 cm. x 1 cm. x bone deep 10 cm. from left ear was found. The bone was also cut in a dimension of 7 cm. x 1 cm. Thereafter, Daulat Ram was taken to Bulandshahar hospital. He died on the 7th day. The inquest proceedings pertaining to dead body of Daulatram was conducted by Dhandrapal Sharma P.W. 7. He sent the dead body to the mortuary in a scaled cover for post-mortem. The post mortem was conducted by Dr. R.K. Mittal P.W. 3 at 4.15 p.m. on 16.1 1.1978. He found the same injury as found by the doctor of the Primary Health Centre P.W. 6 Dr. N.C. Agrawal. The doctor had found that the parietal bone had been cut. The brain was conjested in middle portion top. The stomach was empty. According to the doctor the death had been caused due to coma as a result of injury. 4. N.C. Agrawal. The doctor had found that the parietal bone had been cut. The brain was conjested in middle portion top. The stomach was empty. According to the doctor the death had been caused due to coma as a result of injury. 4. The investigation had been taken up by Chandra Pal Dutt Sharma P.W. 9. He had interrogated the witnesses, prepared the site plan and submitted the charge-sheet against the appellants. 5. The prosecution had examined 9 witnesses. P.W. 1 Raghubir, P.W. 2 Banwari Lal and P.W. 4 Faiyaz as witnesses of fact. P.W. 5 Bhawar Singh has registered the case. P.W. 3 Girand Singh constable had taken the dead body from the mortuary. 6. The appellants had pleaded not guilty to the charges. They had not produced any witness in defence. After assessing the prosecution evidence the learned Sessions Judge found the offence established against the appellant. It has been argued by the learned counsel for the appellant that there was no enmity between the appellant and the complainant. It appears that deceased was working with a phawara in his field and he fell clown on the edge of his phawara which caused injury on the head. It was urged that if the appellants had no enmity with the complainant party then there was no purpose of keeping a pharasa with them, when at the time they were working in an adjoining field. According to the learned counsel for the appellant the other witnesses had enmity with the appellant and they were actually instrumental in false implication of the appellants. It was also urged that it was not clear whether coma appeared in a later part of the treatment of the deceased in the hospital or continued from the very beginning. If coma resulted after some time which was cause of death then the appellant could not be convicted for the offence under section 302, I.P.C. It was urged that the appellants had no intention to kill the deceased. There is no evidence on record to show that the alleged injury caused by the appellant was sufficient in the ordinary course of nature to cause death. 7. We have heard the learned counsel for the State. Learned counsel urged that motive has little to do when the eye witnesses have stated that appellants had actually caused the fatal injury. 8. 7. We have heard the learned counsel for the State. Learned counsel urged that motive has little to do when the eye witnesses have stated that appellants had actually caused the fatal injury. 8. Amongst the witnesses of fact P.W. 1 Raghubir is not an eye witness. He stated in paragraph 2 of examination in chief that he received an information in his village that Daulat Ram has received injury. When he arrived at the spot Banwari, Faiz Muhammad and Faiyaz Mohammad informed him that Tejpal had inflicted a pharasa blow on the head of Daulatram. Thereafter he went to the Police Station along-with Daulatram on a bullock cart. Raghubir had admitted in his cross-examination that he had no enmity with the accused. 9. It was argued by the learned counsel for the appellants that if Raghubir and Daulatram had no enmity with the accused then there was no reason as to why the accused Tejpal will cause pharasa injury. It was also urged that Nali according to the map Ext. Ka. 15 was running in between the fields of Daulatram and accused. Hence there was no reason for objecting, to cleaning the Nali by the appellant. It is very difficult for the prosecution to explain the manner of working of the mind of a human being. Some times people do not react adversely even on a grave provocation and some times people react gravely on a very flimsy provocation. Raghubir had stated in last portion of paragraph 3 of his examination-in-chief that four days before the occurrence the accused had asked Daulatram to allow them to irrigate their potato crop, from their Nali but Daulatram had refused to permit them to take water through their Nali. This statement is not without any basis. Ext. Ka 15 the site plan shows that a Nali runs between the field of deceased Daulatram and the potato field of appellants. In this way on account of refusal of permission to irrigate the crop from the Nali of the deceased the appellant could have a grudge. 10. Dr. N.C. Agrawal has admitted in his cross-examination that the injuries of the deceased could be caused by a 'Kasala'. The learned counsel for the appellant Sri S.P.S. Raghav stated that this 'Kasala' is a local term of Bulandshahar for spade. 10. Dr. N.C. Agrawal has admitted in his cross-examination that the injuries of the deceased could be caused by a 'Kasala'. The learned counsel for the appellant Sri S.P.S. Raghav stated that this 'Kasala' is a local term of Bulandshahar for spade. We do not agree with this statement because a suggestion had been made to P.W. 3 Dr. R.K. Mural whether injury on the person of deceased could be caused by 'Kasala' or Phawara. Thus, this suggestion itself speaks that 'Kasala' and 'Phawara' are two different agricultural implements. They may be used like a spade but may be varying in size and width of the metal portion. It has not been suggested to the two doctors that the injuries could be caused by a fall on 'Phawara' or 'Kasala'. The postmortem report shows that the parietal bone was cut sharply in dimension of 3' x " with fissured fracture. A cut in the bony part of the skull was possible only if the deceased fell with a force on a blade portion of a 'Kasala' or a 'Phawara'. There is no evidence to substantiate the contention of the learned counsel for the appellant that the deceased fell with such a force on the blade portion of the 'Kasala' or 'Phawara' as to sustain injury No. 1. 11. It was argued by the learned counsel for the appellant that P.W. 2 Banwari Lal is a chance witness. There was no occasion for going on the Mera of the field of Daulatram. There was a Chakroad and he should have easily gone through Chakroad. It was suggested in the cross-examination of this witness that a Chakroad runs towards the field of appellant and the deceased. This Chakroad goes straight towards north for a distance of a furlong and thereafter it turns towards east. It was suggested to this witness that on this turning point the field of this witness exists. This witness is the resident of the same village in which the appellant and deceased reside. He had stated that he had gone in the morning for sowing peas in his field. He had also stated that his Chak is situated at a distance of about 100 steps from the field of Daulat Ram deceased. This witness is the resident of the same village in which the appellant and deceased reside. He had stated that he had gone in the morning for sowing peas in his field. He had also stated that his Chak is situated at a distance of about 100 steps from the field of Daulat Ram deceased. It is alleged that presence of this witness is doubtful on the ground that ordinarily he would not have gone on the Mera existing between the field of the deceased and the accused. He would have preferred the Chakroad. It was pointed out that this witness had admitted that his brother has taken the bullock and plough through Chakroad to his field. It was not possible for the Yoked bullocks to go to the field through Mera. On account of their nature of Yoking the bullocks could he taken only through the Chakroad. In village person moving on foot may take shortest passage and may go through the Mera between two fields. Hence the presence of this witness Banwari Lal was quite probable. This witness can not he termed as a chance witness. The name of Banwari Lal is mentioned in the First Information Report Ext. Ka.1. It has been lodged within 45 minutes. The police station was only Km. from the place of occurrence. Nothing was elicited in the cross-examination of Head-Moharrir, Bhanwar Singh P.W. 5 that this report was not lodged at the alleged time. The correctness of the lodging of the report is fortified by the examination of the deceased by Dr. N.C. Agarwal at 230 p.m. on the date of occurrence. He had been brought by Constable Atara Singh. Raghubir has stated that deceased had been taken to Naraura Primary Health Centre. On that place doctor was not available hence the injured was taken to Kaser. Thus the delay of about 2 hours in the examination was probable. These facts indicate that First Information Report was lodged quite promptly. The name of this witness is mentioned in the First Information Report. Considering all these facts we are of the opinion that this Banwari can not he termed as a chance witness. His presence at the spot was probable. These facts indicate that First Information Report was lodged quite promptly. The name of this witness is mentioned in the First Information Report. Considering all these facts we are of the opinion that this Banwari can not he termed as a chance witness. His presence at the spot was probable. In October-November the sowing of Rahi crops starts hence it was probable that this witness Banwari might have gone along with his brother to his field which was situated just 100 steps from the Chak of deceased in which he was going to sow pea. This witness was cross-examined at great length but nothing material was elicited to discredit his testimony. 12. It was suggested to Banwari that his grand father Behari Lal and Bhopal were real brothers. This witness showed ignorance that Bhopal was grand father of Daulatram. The counsel for the defence ought to have cross-examined Raghubir and brother of Daulatram about the alleged pedigree showing that Banwari Lal was father's fathers brother's Son's son of Raghubir and Daulatram. Even the accused have not stated in their statement under section 313 of the Code of Criminal Procedure about the relationship between Daulatram and Banwari Lal. Thus we find that Banwari Lal was an independent witness. His evidence is reliable. 13. P.W. 4 Faiyaz is another witness. His name is also mentioned in the First Information Report as an eye witness. It was suggested to him that Chiranji's father-in-law of Khyali was murdered. The witness showed ignorance about it. He also expressed ignorance whether father of this witness was convicted in connection with the murder of Chiranji. However he admitted that his father had been convicted in a criminal case. No document has been filed from the side of the defence to substantiate their contention that the father of this witness was convicted in the murder of Chiranji. Only one document was fled before the Sessions Judge as Ext. Kha.2. It was a copy of the order of Tahsildar dated 4.9.1978 in connection with a matter under section 122 B of Z.A. Act. For the reasons mentioned above we are of the opinion that the defence has failed to show that Faiyaz Ahmad was in any way inimical to the accused persons. 14. Faiyaz Ahmad has given a proper explanation about his presence at the sport. He stated that he was going to thrashing field situated in a grove. For the reasons mentioned above we are of the opinion that the defence has failed to show that Faiyaz Ahmad was in any way inimical to the accused persons. 14. Faiyaz Ahmad has given a proper explanation about his presence at the sport. He stated that he was going to thrashing field situated in a grove. His presence on the spot can not be termed as a chance presence. As we all know the thrashing operation of Kharif crops also goes in the month of October-November. This witness has given a vivid description of the occurrence. The learned Sessions Judge has discussed the evidence of this witness in detail. There is no good reason to disbelieve this witness. From the above discussion we come to the conclusion that the prosecution has succeeded in establishing that appellant Tejpal has given Pharasa blow to Daulatram while Khyaliram was holding him in his arms. 15. We, however, agree with the learned counsel for the appellants that in the circumstances of the case the appellant could not have been convicted under section 302 I.P.C. A single blow of Pharasa was inflicted on Daulatram. None of the witnesses have stated that appellants had any intention to cause death of Daulatram. Even Dr. R.K. Mittal who had conducted the post-mortem examination had not stated that the injury caused on the person of deceased were sufficient in ordinary course of nature to cause death. He has stated that the deceased was in a coma and had died as a result of this coma. There is no evidence on record to show as to when this coma had developed. Thus, there is no evidence of the prosecution to connect the death of Daultram with the injury on his head. There is no evidence that the injury was inflicted with intention of causing such bodily injury as appellants knew to be likely to cause the death of Daulatram. From the evidence it also can not be said that the appellants knew that their act of wielding pharasa was so imminently dangerous that it must, in all probability cause death, or such bodily injury as is likely to cause death and this act was committed without any excuse for incurring the risk of causing death or such injury as aforesaid. The whole offence has taken place at a whisper of moment when both the parties had suddenly engaged themselves in a quarrel. Therefore the act of the appellants can not be said to he either murder or culpable homocide not amounting to murder. It appears that intention was simply to cause a bodily injury to the deceased with Pharsa. It is probable that on account of some lapses in the treatment, the deceased might have died as a result of coma. 16. The appellants had caused an incised wound 7 cm, x 1 cm. the bone underneath this incised wound was cut in a dimension of 3.5" x ?". There was fissured fracture on both sides of pariental bone. 17. The fracture had not been defined in the Indian Penal Code. In Hori Lal v. State of U.P. A.I.R. 1979 S.C. 1969, the Supreme Court had considered a fracture in the bone by cutting or splintering of the bone and if there is a rupture or fissure in it, it would amount to a fracture within the meaning of clause 7 of section 320, I.P.C. The relevant portion of the judgment is as under: "It is true that fracture has not been defined in the Penal Code. It is sometimes thought as in the case of Po Yi Mating v. Ma E Tin, A.I.R. 1937 Rang 253 that the meaning of the word fracture would imply that there should be a break in the bone and that in the case of a skull bone it is not merely sufficient that there is a crack but that the crack must extend from the outer surface of the skull to the inner surface in Mutukdhar Singh v. Emperor, A.I.R. 1942 pat 376 it was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut, whether a deep one or a mere scratch on the surface of the bone, it will be difficult to infer that the injury is a grievous hurt within the meaning of Section 320 of the Penal Code in our view, both these assumptions are misleading. It is not necessary that a bone should he cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. It is not necessary that a bone should he cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or splintering of the bone or there is a rupture or fissure in it, it would amount to a fracture within the meaning of Clause 7 of Section 320." 18. In the case of Hori Lal (supra), the injured had the following injuries: "2. Incised wound 3" x 1 " x bone vertically on the right half forehead just above the right eye brow. 3. Incised wound 1" x " x bone cutting the underlying bone lower part left humerus just above the left elbow on the back of left arm. 4. Incised wound obliquely 5" x 2" bone cutting the underlying radius and above left in the middle of the left forearm back. 5. Incised wound 5" x 1" x bone on the hack of the left forearm lower ?rd. Slightly obliquely cutting both the bones of left forearm." 19. In respect of these injuries, the Supreme Court observed: "What we have to see is whether the cuts in the bones noticed in the injury report are only superficial or do they effect a break in them. The nature of the injuries as spoken to by the doctor in his evidence, discloses the length, breadth and depth of each injury. So far as the depth of the injuries Nos. 3, 4, 5 and is concerned, each one of the injuries shows that it is bone deep and they are described as cutting the underlying bone. In injury 3 left humerus, in injury 4 radius, in injury 5 both the bones of the left forearm and in injury the tibia bone shaft have been cut which would show that they are fractures." 20. If the sole injury of the deceased is examined in the light of the observations of the Supreme Court in the above case, it would amount to a grievous injury. Consequently the appellants would be guilty of the offence punishable under section 326, I.P.C. Appellant Tejpal will be guilty under section 326, I.P.C. simpliciter and co-accused Khyali would be guilty under section 32 read with section 34, I.P.C. 21. Consequently the appellants would be guilty of the offence punishable under section 326, I.P.C. Appellant Tejpal will be guilty under section 326, I.P.C. simpliciter and co-accused Khyali would be guilty under section 32 read with section 34, I.P.C. 21. It may be argued that the acts of the appellants may amount to an offence under section 304, I.P.C. In order to bring an offence under section 304, I.P.C., the prosecution must establish: (i) that by his act the accused had caused the death of a person or (ii) that the accused intended to cause such death by his act or (iii) that he intended to cause such bodily injury as was likely to cause such death by such act or (iv) that he knew that he was likely to cause death by his act. 22. None of the ingredients of section 304, I.P.C., as mentioned above, are present in this case. Even the First Information Report does not indicate that the appellant intended to cause death or such actual injuries which could cause death or that he knew that he was likely to cause death by his act. The occurrence had taken place on account of small dispute about a Nali. From this it cannot he inferred that the appellants could have any intention to cause death or to cause such bodily injury as was likely to cause death or that he knew that by his act he will cause death. It appears that the main intention was to cause hurt. It is accidental that the 'Pharasa' blow landed on the head. There was no repetition of blow. Consequently, we are of opinion that the act of the appellants would not come within the ambit of the offence under section 304, I.P.C. 23. For the reasons mentioned above, the conviction of the appellants should be converted to one under section 326, I.P.C. This appeal has come for hearing after a lapse of thirteen years. The appellants Khyali and Tejpal were seventy five and twenty five years old respectively at the time of occurrence. Considering the circumstances, we feel that a sentence of imprisonment of three years and a fine of Rs. 7,500/- to each of them would meet the ends of justice. 24. The appellants Khyali and Tejpal were seventy five and twenty five years old respectively at the time of occurrence. Considering the circumstances, we feel that a sentence of imprisonment of three years and a fine of Rs. 7,500/- to each of them would meet the ends of justice. 24. In the result, the appeal is partly allowed and the judgment and order of the court below are modified to this extent that the conviction of appellant Tejpal under section 302, I.P.C. is converted to one under section 326, I.P.C. simpliciter and that of appellant Khyali under section 302 read with section 34, I.P.C. is also converted to one under section 32 read with section 34, I.P.C. Each of them are sentenced to rigorous imprisonment for three years and a fine of Rs. 7,500/- (Rupees seven thousand five hundred only) each. The fine be paid within three months from the date of this order failing which each of them shall undergo further rigorous imprisonment for One year. If the fine is realized, Rs. 12,500/- (Rupees twelve thousand five hundred only) shall he paid to the heirs of the deceased.