JUDGMENT 1. - At the time of arguments on the bail application, a request was made that the case itself may be heard on merits. On joint request, the case was heard on merits. 2. The facts necessary to be noticed for the disposal of this appeal, briefly stated are that the accused appellant was found standing armed with a Dhariya in front of the house of Nathu Ram deceased in the night intervening between 29th and 30th of May, 1989 at 11 p.m. When this was seen by Chhater Singh, he scaled the wall of the house of Nathu Ram which is just adjacent to his house and informed that Ram Singh was standing outside their house armed with a Dhariya. Thereafter both the brothers i.e. Chunni Lal and Nathu Ram went outside to see as to why Ram Singh was standing there when they came outside, Ram Singh started going towards the School. They then inquired from him as to why he was standing there at that hour of the night armed with a Dhariya. The accused told them that he was only standing outside their house, he could come inside their house also. This infuriated Nathu Ram and he told him to try to come inside the house and then see the result. Hearing hot exchange of words, father of Nathu Ram and Chunni Lal also came there. At that point of time Ram Singh told Nathu Ram that he has rebuked him and so he well teach him a lesson and struck a Dhariya blow which resulted in causing as injury on his head, the measurements of which were ll"x l"x Bone deep and the bone underneath the wound was cut in the size of 9"xl/6"x 1/4 It cut not only the skull bone but the Dura-matter was also cut. Superior sagital sinus was also cut in the size of 4"x1/2"x l 1/2". The injury and its internal effect was so severe that it caused his death. PW. 5 Dr. Om Prakash Meghwal has opined that this injury was ante mortem and was sufficient in the ordinary course of nature to cause death. 3. Superior sagital sinus was also cut in the size of 4"x1/2"x l 1/2". The injury and its internal effect was so severe that it caused his death. PW. 5 Dr. Om Prakash Meghwal has opined that this injury was ante mortem and was sufficient in the ordinary course of nature to cause death. 3. Be that as it may, on the report of Chunni Lal brother of the deceased, which has been marked as Ex, P/1, a case has been registered against Ram Singh and after usual investigation a challan was filed in the Court of learned Additional Munsiff & Judicial Magistrate, Bhadra wherefrom it was committed for trial to the learned Additional Sessions Judge, Nohar who charged the accused for offence under Section 302 IPC and after trial convicted the accused aforesaid. Against that judgment dated 24.9.90, this appeal has been filed. 4. We have heard Mr. M.L. Garg, the learned counsel appearing for the accused appellant and Mr. D.R. Bohra, learned Public Prosecutor appearing for the State and bestowed out most thoughtful consideration to the rival submissions made at the Bar. 5. Mr. Garg does not dispute the occurrence but the submits that as soon as Nathu Ram and his brother came out, accused immediately started towards the school. It he had any intention to kill Shri Nathu Ram or he was determined to do so, he would have inflicted Dhariya blow then and there but he did not do so. Rather on seeing them he started towards the school. It was only when Nathu Ram followed him and tried to inquire the reason for his coming and standing there at that hour of night and rebuked him for this that the accused in order to teach him lesson inflicted a blow on his head. It is nobody's case that the blow was repeated and therefore, the case does not travel beyond Section 304 Part II IPC. The learned Public Prosecutor submitted that it is a case of intentional killing. The blow was so severe that it has not only cut the skull bone but it has injured the brain also and Doctor PW 5 Om Prakash has categorically stated that this injury was sufficient in the ordinary course of nature to cause death. The learned Public Prosecutor submitted that it is a case of intentional killing. The blow was so severe that it has not only cut the skull bone but it has injured the brain also and Doctor PW 5 Om Prakash has categorically stated that this injury was sufficient in the ordinary course of nature to cause death. Under these circumstances, the learned Sessions Judge has rightly recorded the conviction of the accused under Section 302 IPC and accused deserves no leniency because he came armed with a Dhariya and was standing outside the house of Nathu Ram and when cause of his standing there at that unearthly hour of the night was inquired into, he inflicted the injury and, therefore, accused deserves no leniency. 6. We have bestowed our thoughtful consideration to the rival submissions made at the Bar. In this case it Is no doubt true that the accused was armed with a Dhariya and was standing outside the house of Nathu Ram. A number of explanations may be possible for his standing there outside the house of Nathu Ram which is a thoroughfare. However, when Nathu Ram and Chunni Lal came outside their house on being informed by Chhater Singh and inquired from him why he was standing there, it was told by him that he may come inside their house also. That talk took place in the way when the accused had already made his way towards the school, and was followed by Nathu Ram and Chunni Lal. Initially, the accused had definitely no intention to cause any injury to Nathu Ram because he did not attack Nathu Ram or his brother as soon as they come out. If he had any intention to kill them, he would have attacked them immediately as soon as he saw them outside their house totally unarmed. However, the conduct of Nathu Ram in inquiring about his standing there at that hour of the night outside his house was quite natural. Anybody who finds a person standing outside his house armed with Dhariya at that hour of night will certainly enquire about the reason which must have impelled him to stand there. However, on this enquiry the accused got infuriated and told that he can not only stand there but he can enter his house as well. Anybody who finds a person standing outside his house armed with Dhariya at that hour of night will certainly enquire about the reason which must have impelled him to stand there. However, on this enquiry the accused got infuriated and told that he can not only stand there but he can enter his house as well. On this Nathu Ram rebuked him and told him that he may do so and they will teach him a suitable lesson. This enraged the accused and he inflicted a blow on the head of Nathu Ram to teach him a lesson for rebuking him. It is true that the blow has not been repeated and no attempt was also made to injure Chunni Lal but keeping in view the intensity of the blow and the part of the body which has been chosen for infliction of the injury, it can certainly be said that accused intended to cause an injury which was likely to cause death of the injured. The weapon of offence was Dhariya and blow itself was so severe that it has not only caused a fracture of the skull bone but it has cut the dura-matter and caused injury to brain and thus the accused did have an intention to cause such bodily injury which was likely to cause death and therefore, he is certainly guilty of the offence under Section 304 Part 1 IPC and not of Section 302 IPC. 7. Consequently, the appeal partly succeeds. The conviction and sentence of the accused recorded under Section 302 IPC by the learned Additional Sessions Judge, Nohar is set aside and the accused is held guilty of the offence under Section 304-1 IPC and he is sentenced to 10 years rigorous imprisonment together with a fine of Rs. 500/- and in default of payment of fine, he is further ordered to undergo three months' rigorous imprisonment. 8. The result be conveyed to the jail authorities for compliance. The bail application filed by the accused stands rejected accordingly. *******