JUDGMENT 1. - Since the jail appeal and the appeal presented through advocate arise out of the same judgment and order of the Sessions Judge, they arc disposed by this common judgment. 2. The appellant, Gopal Singh, has been convicted by the Sessions Judge, Jhalawar for the offence under section 302 IPC and sentenced to life imprisonment and a fine of Rs. 2,000/-. In default of payment of fine he has been directed to undergo rigorous imprisonment for six months. Against this conviction and sentence made on 5.11.1993, the appellant has preferred this appeal. 3. The facts of the case lie in a very narrow compass. The accused party as well as deceased party were cousins and most of the witnesses are also related. It so happened that on 18.2.1991 at about noon time in village Sunari, which falls under Police Station Gangdhar, Distt. Jhalawar, P.W. 6 Nepal Singh and the accused Gopal Singh went to the well, which was joint in the name of Nepal Singh and complainant P.W. 9 Shiv Singh. The deceased Ranjit Singh, who was brother of complainant Shiv Singh also came there. The accused Gopal Singh started drawing water from this well, when he had no share in it. He was restrained by the complainant party, upon which he stopped drawing the water, but he soon called Bhairon Singh and Kripal Singh and with their aid he again started taking water from the well. Ranjit Singh stopped the chadas, upon which Gopal Singh appellant and Bhairon Singh, who was also accused, who died during the trial, took out saliya from the cart and Gopal Singh gave a saliya blow on the head of Ranjit Singh. Bhairon Singh and Kripal Singh also gave blows to Shiv Singh. Ranjit Singh became unconscious. He was first taken to the doctor at Gangdhar, but the doctor was not available. Then they proceeded to Chommahala where they could not find a doctor. Thereafter they engaged a jeep and proceeded to Nagda where the deceased was admitted at the Birla Hospital. The doctors treated him and removed clotted blood from the head injury but he died on the evening of 20.2.1991. The Nagda Police prepared a panchnama of the dead-body and got the post-mortem conducted and then transferred the papers to the Police Station Gangdhar as the incident had taken place within the area of this Police Station. The doctors treated him and removed clotted blood from the head injury but he died on the evening of 20.2.1991. The Nagda Police prepared a panchnama of the dead-body and got the post-mortem conducted and then transferred the papers to the Police Station Gangdhar as the incident had taken place within the area of this Police Station. For the first time a report was lodged at the Police Station Gangdhar on 21.2.1991, which is Ex.P/14. 4. P.W. 9 Shiv Singh and P.W. 10 Narain Singh are the eye witnesses in this case. P.W. 6 Nepal Singh was also an eye witness. Although his statement was recorded under section 164 Cr.P.C. but he has turned hostile and he has not fully supported the prosecution case. 5. Before coming to the oral evidence we may say that they there are two hurdles, which the prosecution has to cross. Ex.P/21 entry was made in the rojnamcha at the outpost of Birla Gram District Nagda when information was received from the Hospital that Ranjit Singh was admitted with a head injury. In this it is mentioned that he had a fall from khankra tree. Then after the death of Ranjit Singh, panchanama of the body was prepared and in this panchnama Ex.P/20, which has been signed by Dule Singh, father of the deceased and others, it has been mentioned that Ranjit Singh died as a result of the head injury received by him due to a fall from the Khejda tree. 6. Admittedly, the first version given by the relatives of the deceased is that he fell from the khejda tree, but P.W. 7 Dule Singh, father of the deceased has stated that he had to make a wrong statement in the Hospital at Nagda because without this false declaration no one would have admitted Ranjit in the Hospital. The same version was given at the time of preparation of the panchnama. The hospital where he took the deceased was a private hospital and the difficulty of the attendant can be said to be genuine. In a private hospital no one would touch a patient, who is involved in a legal case. At that time the deceased was alive and it was more important for the attendant, to give medical help to him rather than to bring the accused to the books. In a private hospital no one would touch a patient, who is involved in a legal case. At that time the deceased was alive and it was more important for the attendant, to give medical help to him rather than to bring the accused to the books. This explanation can be accepted and it can be said that it will not come in the way of the prosecution in case the evidence can be said to be satisfactory to prove the guilt of the accused. 7. Ex. P/14 written report was lodged at the Police Station Gangdhar on 21.2.1991 at 4.30 p.in. In this report the incident has been described in full and it has been mentioned that accused Gopal Singh gave a saliya blow on the head of the deceased and others gave beating to the informant Shiv Singh. This report cannot be called a first information report as information of the incident had already been given at the outpost of Birlagram. Now it is on the basis of the oral evidence in the case, it has to be seen whether the appellant has committed the offence or not. As already seen above, PW. 9 Shiv Singh and PW. 10 Narain Singh arc the eye witnesses and they described the manner in which the quarrel look place on operating the chadas in a joint well, in which the appellant had no share. PW. 6 Nepal Singh has more or less admitted the incident, even though he has turned hostile so far as giving of the blow by the appellant is concerned. He has stated that on 18.2.1991 at about noon time (he accused Gopal Singh wanted to draw water by the chadas when Narain Singh, Ranjit Singh and Shiv Singh asked him not to do so. Then there was a quarrel between the two parties and this witness intervened then Bhairon Singh and Narain Singh started grappling with each other and when he (Nepal Singh) went to separate them something happened and he found Ranjit Singh lying on the ground. He did not see as to who had beaten Ranjit Singh. He has even admitted that the accused Bhairon Singh (since deceased) had sent someone to threaten him not to give evidence against him. In this story the quarrel between the two sides has been described and there is no scope for the deceased to fall from a tree. He did not see as to who had beaten Ranjit Singh. He has even admitted that the accused Bhairon Singh (since deceased) had sent someone to threaten him not to give evidence against him. In this story the quarrel between the two sides has been described and there is no scope for the deceased to fall from a tree. It is apparent that the witness does not want to name the appellant as the assailant and this evidence has come from the statements of PW. 9 Shiv Singh and PW. 10 Narain Singh. 8. No doubt there is delay in the lodging of the FIR at the Police Station Gangdhar and in the first instance it was not given out that the accused had attacked the deceased. These matters stand explained in the evidence produced before the court. The father of the deceased had to make a false statement in the hospital so that he could get some treatment and if possible a life could be saved. As the concerned persons were all engaged in getting treatment for the deceased they could not go to Gangdhar for lodging of the report, hence it was lodged only when the deceased died and when they returned to their village. 9. The most important thing is that the eye witnesses in the case have been able to prove the incident and the fact that it was the appellant who had caused the head injury on of the deceased and there is no reason to disbelieve these witnesses. 10. The question which arises is what offence can be said to be made out against the accused appellant. As we have seen above, the incident started suddenly on a quarrel between the two sides on the question of drawing water from a well and there were verbal exchange and subsequently one blow was inflicted by the appellant. It could be said that if the appellant had the intention of causing the death of Ranjit Singh he would have inflicted more blows. When the incident occurred without any premeditation upon a sudden quarrel in the heal of passion then the case would fall within the exception to section 300 IPC. 11. It could be said that if the appellant had the intention of causing the death of Ranjit Singh he would have inflicted more blows. When the incident occurred without any premeditation upon a sudden quarrel in the heal of passion then the case would fall within the exception to section 300 IPC. 11. The doctor in this case has stated that the injury was sufficient in the ordinary course of nature for causing death, hence it can be said that the accused caused the injury which was sufficient in the ordinary course of nature to cause death, hence his offence would fall under section 304 Part I I.P.C. 12. Accordingly the appeal is partly allowed. The conviction and sentence of the appellant for the offence under section 302 IPC is set aside, instead the appellant is convicted for the offence under section 304 Part I IPC. He is sentenced to 7 years rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine he shall undergo rigorous imprisonment for three months. The result of the appeal be informed to the accused appellant in Jail. *******