Judgment :- K.M.Natarajan, J. The accused in S.C.No.72 of 1985 on the file of the Sessions Judge, Madurai North at Dindigul, has preferred this appeal challenging the legality and correctness of his conviction under Sec.302, I.P.C. and the sentence to suffer imprisonment for life and also under Sec323, I.P.C. (three counts) and the sentence to suffer rigorous imprisonment for six months under each count, all the sentences being directed to run concurrently. He was tried for the above two charges on the allegation that on 2. 1985 at about 2 p.m. at Bommananallur he caused the death of his father Karuppanna Gounder aged about 65 years by beating him with a cart peg on his head and left cheek and again after pushing him down stamped on his chest and neck as a result of which he later died at the Government Hospital on 2. 1985 at 11.30 a.m. and during the course of the same transaction, he beat P.Ws.1 to 3 with the same cart peg and caused simple injuries. To substantiate the above charges, the prosecution examined P.Ws.1 to 19, filed Exs.P-1 to P-19 and marked M.Os.l to 13. 2. The case of the prosecution as disclosed from the oral and documentary evidence can be briefly stated as follows: P.W.1 is the mother of the accused while the deceased was the father of the accused. The deceased and the accused were divided and they were living separately. P.W.l’s daughter Ramatchal was given in marriage to Rangasami who is the son of P.W.2. and they are residents of Kambalinakanpatti. The accused married one Karuppayee. The accused became an addict of arrack and ganja, and he used to demand money from P.W.1 and her husband for his illegal and immoral activities. They also used to give him money. His wife Karuppayee, on account of the conduct of the accused, left his house and went to her parent’s house. She also gave a complaint at Oddanchatram police station to P.W.15 (Grade I constable). The said complaint is marked as Ex.P-10 wherein she alleged that she sustained injuries due to beating by the accused. Karuppayee was staying in her parent’s house. 3. On the day of occurrence (2. 1985) at about 9 a.m. the accused demanded money from P.W.1. When she expressed that she has no money, he beat her. The said complaint is marked as Ex.P-10 wherein she alleged that she sustained injuries due to beating by the accused. Karuppayee was staying in her parent’s house. 3. On the day of occurrence (2. 1985) at about 9 a.m. the accused demanded money from P.W.1. When she expressed that she has no money, he beat her. Then her husband (deceased) found fault with the accused by saying that he has become unruly and that he would bring his daughter and son-in-law and so saying, he left for Kambalinayakanpatti. At about 11.30 a.m. P.W.1 left her house and was proceeding by the side of the shed of P.W.5 through a short cut. The accused also followed her. At that time, the deceased and P.W.2 were coming from west. The accused beat P.W.1 on her head with M.O.2, cart peg, after taking the same from the cart of P.W.5. The deceased came to separate the accused. The accused beat the deceased also with M.O.2 on his head and cheek. On receipt of the injuries, the deceased fell down. The accused kicked him on his chest, as a result of which there was bleeding from the mouth and nose. P.W.2 also intervened. The accused beat him with M.O.2 on his head, forehead and shoulder. P.W.2 ran away from the place out of fear. When P.W.3 intervened, the accused beat her also on the right wrist and nape. At that time, P.W.l’s daughter Ramatchal and her husband Rangasami came there. The accused on their arrival, ran away with M.O.2. 4. P.W.4, on hearing the noise, rushed to the scene place. He noticed the deceased and P.W.1 lying with injuries. P.W.l’s son-in-law Rangasami asked P.W.4 to go over to Moolachatram and inform his son Kumarasami to fetch a taxi. Accordingly P.W.4 went and informed him. The taxi of P.W.6 was brought in which P.W.1, the deceased Karuppanna Gounder, Ramatchal, Rangasami and Kumarasami went to Oddanchatram Police Station. P.W.17, Sub Inspector of Police recorded the statement Ex.P-1 from P.W.1 as Karuppanna Gounder was unconscious. On the basis of Ex.P-1 he registered a case in Crime No.67 of 1985 under Secs.341 and 323, I.P.C. He prepared the first information report Ex.P-11 and sent it to court. He sent the injured Karuppanna Gounder and P.W.1 with memo to the Government Hospital, Oddanchatram, for examination and treatment. 5. On the basis of Ex.P-1 he registered a case in Crime No.67 of 1985 under Secs.341 and 323, I.P.C. He prepared the first information report Ex.P-11 and sent it to court. He sent the injured Karuppanna Gounder and P.W.1 with memo to the Government Hospital, Oddanchatram, for examination and treatment. 5. P.W.7, Medical Officer attached to the Government Hospital, Oddanchatram, examined P.W.1, at 4.05 p.m. on 2. 1985 and found on her the following injuries: 1. An incised wound 2" x 1/4" x 1/4" over the right side parietal region associated with contusion 2. Abrasion 1" over the left side forehead 3. Abrasion 1" associated with contusion over the right forearm lower l/3rd. P.W.7 was of the opinion that those injuries are simple in nature. She also examined the deceased Karuppanna Gounder at 3.40 p.m. and found on him the following injuries. 1. Abrasion 2" x 1" over the left side cheek associated with contusion. 2. Lacerated wound about 3" x 2" over the left side parietal region associated with contusion. 3. Abrasion 1" x 1" over the right side forehead. 4. Lacerated wound about 1" x 1" over back of tongue associated with contusion. She entered the injuries in the Accident Register, copy of which is marked as Ex.P-7. She referred the injured Karuppanna Gounder to the Government Hospital, Dindigul for X-ray of the skull and further treatment. P.W.8 is a Medical Officer attached to the Government Hospital, Dindigul. At about 5.20 p.m. he admitted the injured Karuppanna Gounder in the Accident Ward for treatment. P.W.9 is Assistant Surgeon attached to the said hospital. He examined Karuppanna Gounder and found him unconscious. P.W.10 another Medical Officer of the said hospital examined him on 2. 1985 and he treated Karuppanna Gounder for the head injury. Karuppanna Gounder did not recover from unconsciousness and his condition was worsening. P.W.12, Civil Assistant Surgeon attached to the said hospital, sent death intimation Ex.P-8 to the police since Karuppanna Gounder died at 11.30 p.m. while he was incharge of the hospital. 6. P.W.14 constable received Ex.P-8 death intimation on 12. 1985 and he sent the same to Oddanchatram police station. 7. In the meantime, P.W.17 took up investigation in the case. He inspected the scene place at 4.30 p.m. on 2. 1985 and prepared the observation mahazar Ex.P-2 in the presence of P.W.5 and another. 6. P.W.14 constable received Ex.P-8 death intimation on 12. 1985 and he sent the same to Oddanchatram police station. 7. In the meantime, P.W.17 took up investigation in the case. He inspected the scene place at 4.30 p.m. on 2. 1985 and prepared the observation mahazar Ex.P-2 in the presence of P.W.5 and another. He seized bloodstained stone M.O.3, bloodstained grass M.O.4, bloodstained leaves M.O.5, bloodstained earth M.O.6 and bloodstained earth sample earth in the presence of P.W.5 under cover of mahazar Ex.P-3. He drew rough sketch Ex.P-12. On the same day he examined P.W.5 who produced M.O.2. 8. P.W.14 handed over Ex.P-8 at about 7.30 a.m. on 12. 1985. He altered the section of the offence into one under Secs.341, 323 and 302, I.P.C. He prepared express report Ex.P-13 with copies and sent them to the court and higher officials. P.W.19, Inspector of Police, Oddanchatram, on receipt of the express report at 8 a.m. on 12. 1985, took up the case for investigation. He went to the Government Hospital, Dindigul and between 10 a.m. and 12.30 p.m. he held inquest and examined P.Ws.1, 5 and others. Ex.P-19 is the inquest report prepared by him, M.O.1 bloodstained saree was seized from P.W.1. After completing the inquest, he entrusted the body with P.W.16 with a requisition to conduct post-mortem examination. 9. P.W.13, Assistant Surgeon, Government Hospital, Dindigul, conducted autopsy on the dead body of Karuppanna Gounder on 12. 1985 at 2 p.m. and found on him the following injuries: 1. An abrasion 2" x 1" over the left side of the cheek associated with contusion covered with black scabs. 2. A sutured wound over the left parietal region associated with contusion. On removal of the suture, it measured 3“x 2” bone deep. The underlying structure are bloodstained. 3. Abrasion 1“x 1” over the right side of the forehead covered with scabs. 4. A lacerated wound 1“x 1” over the back of the tongue. 5. Chest wall oedema present. On internal examination, he noticed the peritoneal cavity to contain lymph fluid. There was fracture of the first rib right side. On opening the head there was 3“length fracture of the right frontal bone starting from the orbital margin entering the anterior craneal fossa. The fracture line is covered with blood. There was subdural haematoma beneath the fracture line. The surface vessels congested. There was fracture of the first rib right side. On opening the head there was 3“length fracture of the right frontal bone starting from the orbital margin entering the anterior craneal fossa. The fracture line is covered with blood. There was subdural haematoma beneath the fracture line. The surface vessels congested. Blood clots over the brain stem and mid-brain with laceration of brain tissue beneath the fracture line. He was of the opinion that the deceased would appear to have died of head injury, namely/injury to vital organ (brain), 14 to 15 hours prior to autopsy. According to him, external injury No.2 with the corresponding internal injury is necessarily fatal. Ex.P-9 is the postmortem certificate issued by him. 10. P.W.16 handed over M.O.10 dhothi and M.O.11 waistcord seized from the body of the deceased at the police station. 11. P.W.7 examined P.W.2 Rangasami on 11.21985 at 8.25 p.m. and found on him the following injuries; 1. Abrasion covered by scab about 2” x 1/2“in front of the left ear associated with contusion. 2. Abrasion (covered by scab) associated with contusion 2” x 1“over the occipital region. 3. Abrasion about 1” x 1/2“associated with contusion over lateral aspect of left claviole (wound is covered by scab). 4. Abrasion l”x 1/2“associated with contusion over right shoulder (wound is covered by scab). Ex.P-5 is the wound certificate issued by her. According to her, the injuries are simple. 12. On the same day (12. 1985) P.W.7 examined P.W.3 at 8.40 p.m. and found on her the following injuries: 1. Swelling about 2 x 21/2” over back of neck; tenderness present over top of the swelling. 2. Complaint of pain over the wrist. According to her, the injuries are simple in nature. Ex.P-6 is the wound certificate issued by her. 13. P.W.19 sent the requisition Ex.P-14 to court for sending the material objects to the Chemical Examiner. It is the evidence of P.W.18, Head Clerk of the judicial Second Class Magistrate’s Court, Vedasandur, that in pursuance of the requisition the material objects were sent for analysis by the Chemical Examiner. Exx.P-16 and P-17 are the reports of the Chemical Examiner and Ex.P-18 is the report of the Serologist. P.W.19 arrested the accused on 12. 1985 at 3 p.m. near Eriappur branch road in Vedasandur-Oddanchatram from main road. The accused was brought to the police station and his dhothi M.O.12 and shirt M.O.13 were seized. Exx.P-16 and P-17 are the reports of the Chemical Examiner and Ex.P-18 is the report of the Serologist. P.W.19 arrested the accused on 12. 1985 at 3 p.m. near Eriappur branch road in Vedasandur-Oddanchatram from main road. The accused was brought to the police station and his dhothi M.O.12 and shirt M.O.13 were seized. The accused was sent for judicial remand. After completing the investigation P.W.19 laid the charge-sheet against the accused on 83.1985. 14. When the accused was examined with reference to the incriminating piece of evidence, he denied the prosecution case. No witness was examined on his side. The learned Sessions Judge after taking into consideration the oral and documentary evidence came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt. Consequently the trial Judge convicted and sentenced the accused as stated on the opening para of the judgment. The convicted accused has preferred the appeal. 15. Mr.P.Venkatasubramaniam, learned counsel appointed by the High Court Legal Aid Centre to defend the appellant, took us through the recorded evidence and made his submissions. The learned counsel though tried to argue the case on merits, finding that there is voluminous acceptable evidence on the side of the prosecution confined his argument with regard to the nature of the offence. He submitted that even accepting the case of the prosecution, the offence committed would fall under Sec.304, Part I, I.P.C. and not under Sec.302, I.P.C. He submitted that during a sudden quarrel he picked up a cart peg from the nearby cart and beat P.W.1 and at that time when the deceased intervened, he beat him also and likewise he beat P.Ws.2 and 3 and unfortunately the deceased succumbed to the injuries and by no stretch of imagination it can be said that the accused had the intention to commit murder of the deceased or had knowledge that the injuries would cause death of the deceased and as such the offence would fall under Sec.304, Part I, I.P.C. Per contra, the learned Additional Public Prosecutor vehemently argued that there is acceptable and reliable evidence on the side of the prosecution, which included the evidence of the injured witnesses, P.Ws.1 to 3. Their evidence is amply corroborated by the earliest report given to police and medical testimony. Their evidence is amply corroborated by the earliest report given to police and medical testimony. As regards the nature of the offence, he left it to the discretion of the court and he did not seriously dispute that the offence would not fall under Sec.302, I.P.C. but it would attract Exception 4 to Sec.300, I.P.C. 16. The points that arise for consideration are: 1. Whether the prosecution has proved the guilt of the accused beyond reasonable doubt? 2. If so what is the nature of the offence committed by the accused. 17. As regards the actual occurrence, we have got the testimony of P.Ws.1 to 3. They are all injured witnesses. P.W.1 is the mother of the accused as well as the wife of the deceased. P.W.l’s daughter was given in marriage to the son of P.W.2, P.W.3, is an independent witnesses. As stated earlier, P.Ws.1 to 3 are injured persons. It is the evidence of P.W.1 that the accused and the deceased are divided and they are living separately. The accused became addict to ganja and arrack and he was not heeding to the words of the elders in the village. He used to pester his parents for money for his illegal activities. P.W.1 and her husband used to give him money. On the date of occurrence the accused came to the house of P.W.1 at about 9 a.m. and demanded money and also insisted that his wife should be brought back. When she said that she has no money, he beat her twice. Thereupon the deceased found fault with the accused for creating a scene, and he saying that he would bring his daughter and son-in-law left for Kambalinay-akanpatti. At about 11.30 a.m. she left the house and proceeded in a short cut way and was standing near the shed of P.W.5. The accused followed him. At that time her husband (deceased) and P.W.2 came there. The accused beat her on the head with cart peg after taking the same from the cart of P.W.5. The deceased shouted at him not to beat P.W.1. When the deceased came to separate the accused, he beat him with the same cart peg on his head and again on the cheek. On receipt of the injuries he fell down. Thereupon the accused kicked him on the chest, as a result of which there was bleeding from his nose and mouth. When the deceased came to separate the accused, he beat him with the same cart peg on his head and again on the cheek. On receipt of the injuries he fell down. Thereupon the accused kicked him on the chest, as a result of which there was bleeding from his nose and mouth. P.W.2 intervened and pleaded with the accused not to beat him. The accused beat him also on the top of the head, forehead and shoulder. P.W.2 ran away on account of fear. P.W.3 who was working in the groundnut field came there by saying as to why he was beating. When she came to separate the accused, the accused beat her also on her right wrist and nape of the neck, with the same cart peg. At that time, the daughter of the deceased Ramatchal and her husband Rangasami came there. On seeking them, the accused ran away with the cart peg. Thereupon Rangasami sent word through P.W.4, to his son Kumarasami to bring a taxi. Accordingly the taxi driver P.W.6 was brought. They were taken to the hospital. Thereupon the report was taken. 18. The evidence of P.W.1 is corroborated by the evidence of P.Ws.2 and 3 who are also injured witnesses in all material particulars. P.W.1 gave the complaint Ex.P-1 in which she has set out in detail about the occurrence. On going through the evidence of P.Ws.1 to 3, we are of the view that their evidence is cogent convincing and trustworthy. P.Ws.1 to 3 are injured witnesses. P.W.3 is an independent witness. The presence of P.W.3 near the shed of P.W.5 cannot be disputed as she is the mother-in-law of Periathambi near whose field the occurrence took place. P.W.1 is the mother of the accused and P.W.2 is the sambandhi of the deceased. They too sustained injuries in the course of the same transaction. Their presence cannot be disputed. Their evidence clearly establishes that the accused beat them in the manner spoken to by them in the course of the same transaction and they all stated in one voice that it was only the accused who beat his father the deceased with the cart peg M.O.2 on the head and other parts of the body and when he fell down, the accused kicked him on the chest. Their evidence is amply corroborated by the medical testimony of P.W.7 who examined P.Ws.1 to 3 and the deceased Karup-panna Gounder. Exs.P-4, P-5 and P-6 are the wound certificates she issued in respect of the injuries on P.Ws.1 to 3. Ex.P-7 is the copy of the accident register with reference to the deceased. P.W.7 opined that those injuries would have been caused at the time and in the manner alleged. P.W.8 Dr.Thangavel, P.W.9 Dr.Mubarak and P.W.10 Dr.Rajamanickam who treated Karuppanna Gounder would state that he was unconscious throughout and later he died. P.W.13 who conducted autopsy has categorically stated that external injury No.2 with the corresponding internal injury is necessarily fatal. He would state that the corresponding internal injury is one on the head and there is 3" length fracture of the right frontal bone starting from the orbital margin entering the anterior craneal fossa. He has also stated that the fracture line is covered with blood and there is subdural haematoma beneath the fracture line. There was blood clots over the brain stem and mid-brain with laceration of brain tissue beneath the fracture line. According to the doctor, the injury could have been caused by beating with a weapon like M.O.2. Thus the evidence of the eye witnesses is amply corroborated by the medical evidence and it is clearly established that it was the accused who caused the fatal injury to the deceased by beating him with M.O.2 cart peg and also by kicking him on the chest. He has also caused simple injuries to P.Ws.1 to 3. P.Ws.2 and 3 who intervened also sustained injuries during the course of the same transaction. Thus, the prosecution has satisfactorily establish the guilt of the accused beyond all reasonable doubt. 19. As regards the nature of the offence committed by the accused, it is in evidence that the accused as usual was demanding money from his mother at about 9 a.m. and he also asked her to bring his wife who had already left for her parents’ house. It is also in evidence that the accused became an addict to ganja and arrack and was pestering his parents for money and they also used to give him money. It is also in evidence that the accused became an addict to ganja and arrack and was pestering his parents for money and they also used to give him money. On the date of occurrence also, he was demanding money and since P.W.1 (mother of the accused) expressed that she had no money, the accused beat her with hands, and on seeing the same, the deceased found fault with the accused for quarrelling with his mother and creating trouble, and saying that he was going to bring his daughter and son-in-law, left the house for Kambalinay-akanpatti. Thereafter at about 11.30 a.m., P.W.1 left the house and went through a short-cut route and reached the shed of P.W.5 and was standing there, since the accused was demanding money from her them also. At that time the accused beat his mother by picking up the cart peg from the cart of P.W.5, which was there, on the head. When the deceased intervened, the accused beat the deceased on the head and cheek. When the deceased fell down, he kicked him on the chest, as a result of which he died later in the hospital. The accused thereupon ran away with the weapon, when the daughter and son-in-law of the deceased came there. It is seen from the evidence of the doctor that the deceased died as a result of the head injury. 20. The learned counsel for the appellant vehemently argued that from the circumstances of the case it cannot be said that the accused had any malice and intention to commit the murder. This is not a pre-planned one. Even according to the prosecution, when the deceased intervened as the accused beat his mother, the accused beat him once on the head and then on the cheek and thereafter he did not beat him and after he fell down, he kicked him with legs. In the circumstances, according to the learned counsel, it cannot be said that the accused had any intention to Commit murder or knowledge that the injuries are likely to cause death. During the course of the quarrel, when the deceased intervened, he beat him like beating P.Ws.1 to 3. But unfortunately the deceased succumbed to the injuries two days later at the hospital. During the course of the quarrel, when the deceased intervened, he beat him like beating P.Ws.1 to 3. But unfortunately the deceased succumbed to the injuries two days later at the hospital. In the circumstances, the offence committed by the accused would come under Sec.304, Part I, I.P.C. and not under Sec.302, I.P.C. In this connection the learned counsel for the appellant drew the attention of this Court to some decisions of the Apex Court. In Bupinder Kumar v. Union Territory, Chandigarh, A.I.R. 1989 S.C. 1094, it has been held: "To invoke Exception 4 to Sec.300 four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of pas-‘ sion and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrels not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and cause injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly." In Tholan v. State of Tamil Nadu, A.I.R. 1984 S.C. 759:1984 Crl.L.J. 478: (1984)2 S.C.C. 133 :1984 All.Crl.C. 93: 1984 Crl.App.R (S.C.) 121: 1984 S.C.C (Crl.) 164: (1984) 1 S.C.W.R 243:1984 Chand Crl.C. 31:1984 Cur.Crl.J. (S.C.) 109: 1984 I.J.R. 128, the facts are: "The accused started remon-strations using filthy language against certain organisers of a chit fund who had no connection with the deceased, in front of the house of the deceased and the deceased came out of his house and asked the accused to go away. The accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance." In the above circumstances it was held: ".......though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and therefore, he could be attributed with knowledge that he was likely to "cause death". In such a situation though he could not be convicted under Sec302, . he would be guilty of committing an offence under Sec.304, Part II." In State of Orissa v. Bhagaban Barik, 1987Crl.L.J. 1115, it was held: "Held further although it could not be said from the circumstances that the accused had any intention to kill the deceased, he must in the circumstances be attributed with knowledge when he struck the deceased on the head with a lathi that it was likely to cause his death. The accused was therefore guilty of offence under Sec.304, Part II. (Para 4)." In Randhir Singh v. State of Punjab, 1982 Crl.L.J.195, it has been held: "Having regard to the totality of circumstances, viz. there is only one injury, that the weapon was not carried by the accused 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 accused must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. It cannot be said that the accused intended to cause that particular injury. Under these circumstances the appellant is shown to have committed an offence under Sec.304, Part II." In Jagtar Singh v. State of Punjab, A.I.R. 1983 S.C. 463:1983 Crl.L.J. 852: (1983)1 Crimes 976: (1983)2 S.C.C 342 :1983 CrLL.R (S.C) 228:1983 Crl.App.R (S.C.) 240:1983 S.C.C. (Crl.) 459:1983 I.J.R. 107: 1983 U.P.Crl.R. 214, it was held: "The circumstances in which the incident occurred would clearly negative any suggestion of premeditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3 of Sec.300 is attracted. We have considerable doubt about the conclusion reached by the High Court. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. Could it be said that para 3 of Sec.300 is attracted. We have considerable doubt about the conclusion reached by the High Court. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no premeditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which was proved fatal. Neither para 1 nor para 3 of Sec.300 would be attracted." 21.Per contra, the learned Additional Public Prosecutor drew the attention of this Court to the decision of the Apex Court in Inder Singh v. State of Pepsu, A.I.R, 1955 S.C. 439: 56 Crl.L.J. 1064, wherein it was held: "The accused administered six blows of the lathi on the person of the deceased and the injury No.1 was the fatal injury. The injury No.1 was kept under observation. The deceased however developed slight symptoms of compression of brain and these symptoms gradually increased and he became absolutely unconscious on 23. 1952. Extra dural haemorrhage set in and proved fatal. Hold that it was the accused who was responsible for inflicting the injuries which ultimately resulted in the death of the deceased. Even though the blows were inflicted by the accused on the head of the deceased with force, the lathi not being iron shod and the deceased being a young man and strongly built the accused could not under the circumstances be held to have been actuated with the intention of causing the death of the deceased, nor despite the medical evidence, was the injury sufficient in the ordinary course of nature to cause his death, seeing that he survived for three weeks, and seeing on the doctor’s admission that an injury of that kind was not incurable. But the accused no doubt knew that he would be causing such bodily injury as was likely to cause death and the offence committed by him would fall under Sec.304, Part I and not under Sec.302, the conviction under Sec.302, Penal Code will be converted to that under Sec.304, Part I, Penal Code." The learned Additional Public Prosecutor submitted that the ratio laid down in the above decision will apply to the facts of this case. 22. Applying the ratio laid down in the above decisions to the facts of this case, we have no hesitation in holding that the offence committed by the appellant would be only under Sec.304, Part I, I.P.C. and not Sec.302, I.P.C. as there is nothing to show that there was any premeditation or malice on the part of the appellant. Further there is nothing to show that the accused intended to murder the deceased. Even according to the prosecution, during the course of quarrel, when the deceased intervened, the accused beat the deceased at the spur of moment, with the same weapon with which he beat P.W.1, which was taken from the cart which was parked there and two days later, the said blow on the head proved to be fatal. Hence we are of the view that the conviction of the appellant under Sec.302, I.P.C. is not substantiated; but he is liable for the offence under Sec.304, Part I, I.P.C, The offence under Sec.323, I.P.C. (3 counts) is proved. 23. In the result, the conviction and sentence of the appellant under Sec.302, I.P.C. are set aside and instead, he is convicted under Sec.304, Part I, I.P.C. and sentenced to suffer R.I. for eight years. The conviction and sentence under Sec.323, I.P.C. (3 months) are confirmed. With the above modification, the appeal fails and stands dismissed.