JUDGMENT 1. - This appeal under Section 374, Criminal Procedure Code is directed against the order/judgment dated 26.2.1991 of Additional Sessions Judge, Gangapur City in Sessions Case No. 10/1990. The learned Judge convicted the appellant Surjiya under Section 11, I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-. In default of payment of fine he was to undergo rigorous imprisonment for six months. The remaining five co-accused persons were acquitted from all the charges and the appellant Surjiya was also acquitted from the charges under Section 11 and Section 11 Indian Penal Code. 2. In brief the incident had taken place at 10 a.m. on 3.11.1989. A written report of the incident was submitted by PW 3 Ram Swaroop to A.S.I. Police Station Nadoti at village Bhanwarpada. The prosecution case, as disclosed in the report, was that Ram Khiladi, Ram Niwas, Hari Ram and Ramcbandra had a joint well in the village. In the well Ram Khiladi had a separate engine while Hari Ram, Ram Chandra and Ram Niwas had a joint engine fitted in the well for drawing water for irrigation. The appellant Surjiya is the son of Ram Niwas. Babu Lal and Ram Bhajan were operating the engine and the appellant Surjiya, Hari Ram and Ramniwas were ploughing at a distance of 50-60, Pawandas while Dharam Singh, Kanhaiya Lal and Smt. Mooli were sowing wheat in the field. It was also stated that between Ram Khiladi on the one hand and Hari Ram, Ramniwas and Ramchandra on the other band, a litigation with regard to the field was going on for the last 11/2 years. When the accused persons were ploughing the field and Babu Lal and Ram Bhajan were operating the engine, Ram Kbiladi (now deceased) came on the well. Babu Lal and Ram Bhajan turned the water pipe, which was causing the belt of Ram Khiladi's engine wet. Ram Khiladi objected to this and said it would damage his engine. Babu Lal and Ram Bhajan accosted Ram Khiladi. Appellant Surjiya, Hari Ram and Ram Niwas also hurled abuses to Ram Khiladi. Babu Lal and Ram Bhajan turned the water pipe, which was causing the belt of Ram Khiladi's engine wet. Ram Khiladi objected to this and said it would damage his engine. Babu Lal and Ram Bhajan accosted Ram Khiladi. Appellant Surjiya, Hari Ram and Ram Niwas also hurled abuses to Ram Khiladi. As per the report all the co-accused persons, namely; Babu Lal, Ram Bhajan, Hari Ram, Ram Niwas, Dharam Singh and Kanhaiya surrounded Ram Khiladi near the well and the appellant Sudiya, who was having a spade in his hand, inflicted a blow on the head of Ram Khiladi on being asked by Ram Niwas and Hari Ram and a further accusation was made against Dharam Singh that he sat on the chest of Ram Khiladi and pressed his neck. Thereafter, the coaccused Ram Niwas and Hari Ram brought Ram Khiladi near the well to throw in the well but on a cry made by the informant, Kajodiya, Smt. Shakoori, Ram Rakb and Ummedi came on the spot. The accused persons ran away seeing these persons coming there. 3. On this report Criminal Case No.90/89 was registered at the Police Station Nadoti under Section 302, I.P.C. Post mortem on the dead body of Ram Khiladi was conducted by PW 10 Dr. Shriphool Meena. He found one incised wound on the left side of the skull of the deceased. In the opinion of the doctor, the injury was caused by a sharp edged weapon and was sufficient in the ordinary course of nature to cause his death. After usual investigation the Police submitted a charge-sheet against all the six accused persons including the appellant. 4. All the six accused persons were prosecuted in Sessions Case No.10/1990 in the Court of Additional Sessions Judge, Gangapur City. The appellant was charged under Sections 147, 148 and 302, Indian Penal Code, while the co-accused were charged under Sections 147 and 302 read with Section 149, I.P.C. During the trial prosecution examined 12 witnesses, out of them, PW 1 Ramrakh, PW3 Ram Swaroop, PW4 Smt. Shakoori and PW5 Kajod were examined as eye witnesses. The accused persons denied their involvement in the crime in their statements under Section 11, Criminal Procedure Code No witness was examined in defence. 5. The learned Trial Court held that PW1 Ram Rakh could not be an eye witness of the incident. Hence his testimony was discarded. The accused persons denied their involvement in the crime in their statements under Section 11, Criminal Procedure Code No witness was examined in defence. 5. The learned Trial Court held that PW1 Ram Rakh could not be an eye witness of the incident. Hence his testimony was discarded. However, the evidence of PW3 Ram Swaroop, PW4 Smt. Shakoori and PW5 Kajod was accepted so far as accused-appellant is concerned. The learned Trial Court did not believe the prosecution case that all other accused persons surrounded the deceased or had exhorted the appellant to kill him. The Trial Court also did not believe the prosecution case that the co-accused Dharam Singh sat on the chest of the deceased and pressed his neck. Therefore, the learned Trial Court acquitted all other co-accused persons from all the charges levelled against them. However, the appellant was held guilty under Section 302, I.P.C. as Doctor has opined the injury to be sufficient to cause death in the ordinary course of nature. 6. We have heard Mr. Manoj Sharma, learned Counsel for the appellant and Mr. Khursheed Ahmed Khan, learned Public Prosecutor. 7. Mr. Sharma made two fold submissions, namely that the eye witnesses PWI Ram Rakh PW3 Ram Swaroop, PW4 Smt. Shakoori and PW5 Kajod are not reliable as such the appellant should be acquitted. In the alternative he argued that the offence does not travel beyond 304 Part II, I.P.C. It was also contended that at the time of the incident the appellant was below 21 years of age as his age was described as 20 years in the arrest memo Ex. P13. According to the learned Counsel, the incident took place all of a sudden on a trivial matter and the appellant never intended to cause the particular injury to the deceased. Reliance is placed on Pooran Singh v. State of U.P. AIR 1981 SC 1638 , Randhir Singh v. State of Punjab, AIR 1982 SC 55 , Kulwant Rai v. State of Punjab, AIR 1982 SC 126 , Bharat v. State of Rajasthan, 1980 RCC 49 , Ram Dayal and Others v. State of Rajasthan, 1985 RCC 333 , Paramjit and Another v. State, 1983 Crimes 1120 and Harmendra Singh etc. v. State of Punjab, AIR 1984 SC 759 .On the other hand, learned Public Prosecutor supported the conviction of the appellant and the judgment of the Trial Court. 8. v. State of Punjab, AIR 1984 SC 759 .On the other hand, learned Public Prosecutor supported the conviction of the appellant and the judgment of the Trial Court. 8. We have given our careful consideration to the respective submissions made before us. We have minutely gone through the statements of all the eyewitnesses, namely; PW Ram Swaroop, PW 4 Smt. Shakoori and PW 5 Kajod, who were believed by the Trial Court. Smt. Shakoori is the mother of the deceased, while PW 3 Ram Swaroop was in his field, which is near the place of incident. Similarly, PW5 Kajod is also a neighbour and he was in his field at the time of the incident. After going through the statements of these three witnesses we are satisfied that the learned Trial Court committed no error in placing reliance on their testimony so far as the accused appellant is concerned. There is a consistent case against the appellant right from the First Information Report that he inflicted a blow with a spade on the head of the deceased Ram Khiladi. The presence of Smt. Shakoori in the field is quite natural and it is not expected that she will screen the real offender and will implicate the accused appellant in his place. Her statement is quite straight forward and nothing has come in the cross-examination to disbelieve her testimony. We, therefore, agree with the finding of the Trial Court that it was the accused appellant, who inflicted the single blow on the head of the deceased, which resulted in his death. 9. The alternative argument about the nature of the offence was seriously canvassed before us by the learned Counsel for the appellant. It was contended that the deceased and the accused persons were having a joint well where their separate engines were fitted for drawing water to irrigate their respective fields. The accused persons had no prior meditation and had not come on the spot with preparation. The incident, according to the learned Counsel, took place on the spur of the moment when the co-accused Bhajan Lal and Babu Lal turned the water pipe towards the engine of Ram Khiladi which resulted in an oral altercation between them. It was also contended that the weapon of offence is an instrument connected with the agriculture and is used for diverting the water. It was also contended that the weapon of offence is an instrument connected with the agriculture and is used for diverting the water. It was also contended that the accused appellant is a boy of 20 years at the time of incident having no intention to commit murder of the deceased. In our view, the submissions made by the learned Counsel for the appellant has much force. The appellant was a boy of about 20 years on the date of occurrence which took place on 3.5.1989. According to the prosecution, he gave only one blow with a spade. The circumstances under which the appellant is alleged to have given one blow with spade are relevant to determine whether the offence under Section 302 or 304 Part II, I.P.C. is made out. As stated earlier the learned Trial Court did not believe that part of the prosecution case in which it was alleged that other co-accused persons surrounded the deceased and exhorted the appellant to kill Ram Khiladi. The Trial Court also did not believe that Dharam Singh co-accused sat on the chest of the deceased and pressed his neck. It was also the prosecution case that the accused persons and the deceased were having a joint well where they had separate engines for drawing water to irrigate their respective fields. The quarrel started on a trivial matter when Ram Bhajan and Babu Lal turned the water pipe which was objected by Ram Khiladi as he apprehended that it would damage his engine. All other accused persons were empty handed. The appellant also did not bring the weapon with a prior intention, but the weapon is an instrument connected with the agriculture operation. It also appears that on a petty dispute of turning water, an altercation took place between the deceased and other co-accused persons, at that stage, according to the prosecution, co-accused Hari Ram and Ram Niwas exerted the appellant to give a blow to the deceased and in these circumstances he is alleged to have given one blow by a spade on the head of Ram Khiladi which proved to be fatal. We agree with the contention of the learned Counsel that Part III of Section 11, I.P.C. would not be attracted in the present case as the appellant did not intend to cause that particular injury which is alleged to have been inflicted, though the injury was found to be sufficient in the ordinary course of nature to cause death. Merely because the blow landed on a particular part of the body, it cannot be said that the accused intended to cause that particular injury. The weapon was not at hand. Altercation took place between the co-accused and the deceased. In these circumstances, in our opinion, it would be difficult to say that the accused appellant intended to cause that particular injury to the deceased. In Randhir Singh's case (supra) in similar circumstances where one blow with a Kassi was given on the head of the deceased from the sharp side, the Supreme Court held: "Merely because the blow landed on a particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury. The weapon was not at hand. He did not possess one. Altercation took place between his father and the deceased and he gave blow with a Kassi. In our opinion in these circumstances it would be difficult to say that the accused intended to cause that particular injury. True it is that the injury proved fatal and was opined in the ordinary course of nature to be sufficient to cause death. We need not dilate upon this subject in view of a very recent decision of this Court in Jagrup Singh v. State of Haryana decided on May 7, 1981, (reported in AIR 1981 SC 1552 ) . Sen J., speaking for the Court, after referring to various previous decisions on the subject including the one relief upon in this case, Sirsa Singh v. State of Punjab, 1958 SCR 1495 : ( AIR 1958 SC 465 ) observed that in order to bring the case within Part III of Section 11, I.P.C., it must be proved that there was a n intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be conflicted. In other words, that the injury found to be present was the injury that was intended to be conflicted. We find it difficult to hold in the circumstances herein set out that such was the intention of the appellant." 10. Similar view was taken in Kulwant Rai's case (supra) where one blow with a dragger was given to the deceased which landed in epigastrium area. In Ram Dayal's case (supra) the facts were that a sudden fight took place without any pre-meditation and in that fight Ram Dayal gave farsi blow on the head of Jagannath which resulted in the fracture of parietal bone and ultimately caused his death. It was held that offence under Section 11, I.P.C. was not made out, and the accused Ram Dayal was guilty of offence under Section 11 Part II, Indian Penal Code. 11. In Bharat's case (supra) the quarrel took place all of a sudden. It was held that it cannot be said that the accused aimed the blow at a particular part of the body on which it fell knowing that it would out arteries of the stomach. The conviction of the accused was made under Section 11 Part II, Indian Penal Code. 12. Having regard to the totality of the circumstances, namely; that the accused gave only one blow, the weapon was not carried by the appellant in advance, there was no premeditation and the appellant was a young boy and there was some altercation between the deceased and other co-accused persons, the appellant can be attributed the knowledge that he was likely to cause an injury which was likely to cause death of Ram Khiladi. It cannot be held that the appellant intended to cause the particular injury to the deceased. In these circumstances, we are of the firm view that the appellant is not guilty of offence under Section 11, I.P.C. causing murder of Ram Khiladi but he is guilty of offence under Section 11 Part II, Indian Penal Code. 13. The next question arises what sentence should be awarded. Admittedly, the appellant was below 21 years of age at the time of committing the offence. It cannot be ruled out that he inflicted one blow to the deceased at the instance of others. He has already remained in custody for about 30 months or so as disclosed by the learned Counsel for the appellant. Admittedly, the appellant was below 21 years of age at the time of committing the offence. It cannot be ruled out that he inflicted one blow to the deceased at the instance of others. He has already remained in custody for about 30 months or so as disclosed by the learned Counsel for the appellant. Taking into consideration all the facts and circumstances and the age of the appellant, we think that the sentence of imprisonment already undergone by the appellant will meet the ends of justice. 14. Accordingly, this appeal is allowed in part. The conviction of the appellant is altered from Section 11 to 304 Part II, I.P.C. and the sentence is reduced to imprisonment to the period already undergone by him. The sentence of fine and the period of imprisonment awarded in default of payment of fine are maintained. Three months time is given to the appellant to deposit the fine if the same has not been deposited so far. He be released forthwith if not required in any other case. In case the fine is not deposited within the stipulated period, the learned Trial Court shall take steps to take the appellant in custody to undergo the sentence of imprisonment awarded in default of payment of fine.Appeal allowed. *******