P. K. BAHRI, J. (ORAL) ( 1 ) THE appellant, Faramjit Singh@pammi, S/o Sh. Mohar Singh has been convicted of offencespunishable under Section 302 Indian Penal Code. arid Section 324 Indian Penal Code. videjudgment of an Additional Sessions Judge dated November 27, 1989and vide separate order of the even date, he has been sentenced toundergo rigorous imprisonment for life and to pay a fine of Rs. 1,000and in default of payment of fine. to undergo simple. imprisonmentfor three months on the first count and has been sentenced to undergo rigorous imprisonment for one and a half year and to pay a fineof Rs. 2,000 and in default of payment of fine, to undergo simpleimprisonment for four months on the second count with the directionthat substantive sentences shall run concurrently and the fine if realisted in respect of the fine imposed regarding Section 324, the sameshall be paid to injured Rajinder Pal as compensation. He has filedthis appeal challenging his conviction and the sentences. ( 2 ) THE 23rd day of June 1986 was the birthday of Rajinder Pal,pwi, which ought to have been a day of rejoicing but it appearsthat the same turned out to be a day of mourning for him and hisfamily members. Rajinder Pal, Public Witness I, with his grant father, sincedeceased namely Badri Nath and his two paternal unless namelysubhash Chand, Public Witness 2, and Mahesh Chand, Public Witness 3, were residing atthe relevant time at house No. 344, Neemri Colony, Delhi. Dineshpandey, Public Witness 11, is a friend of Rajinder Pal. He is also friend of thebrothers of the appellant. The appellant is also a neighbour residingin the same area. ( 3 ) IT is the case of the prosecution that on the 23/06/1986. Rajinder Pal, Public Witness I, was having a stroll on a road near bus stand atabout 10 P. M. and at that time he happended to meet the appellant who asked Rajinder Pal to serve him liquor but Rajinder Pal declinedto acceed to his request retorting that he was not indebted to him andthree took some altercation between the two. Thereafter, the appellanthad left the place. Rajinder Pal, thereafter had spent sometime withdinesh Pandey, his friend, in the nearby park and at about 10. 30p. M. both of them returned to the house of Rajinder Pal. Thereafter, the appellanthad left the place. Rajinder Pal, thereafter had spent sometime withdinesh Pandey, his friend, in the nearby park and at about 10. 30p. M. both of them returned to the house of Rajinder Pal. When theyreached near the house of Rajinder Pal, they saw the appellant creating a. nuisance in front of his house and his grandfather Badhnath was trying to pacify the appellant and meanwhile Subhash hadalso come downstairs. In order to persuade the appellant to leavethe place. It appears that Rajinder Pal tendered his applogy to theappellant but appellant, who was in somewhat enraged mood, tookout his kirpaal from the right dub of his trousers under, his kurtaand struck a blow on the right rib of Rajinder Pal, Badri Nath, whotried to intervene, was also given a blow with same weapon whichclanded on the left side of his chest. Thereafter, the appellant ranaway from the spot. Subhash is stated to have then removed injuredbadri Nath to the Hindu Rao Hospital, where the doctor declaredbadri Nath as brought dead. The occurence is stated. to have alsobeen witnessed by Mahesh Chand, another uncle of Rajinder Pal. ( 4 ) THE appellant has been convicted of the offences mentionedabove on the eye witness account given by these four eve witnessesnamely Public Witness -1, Rajinder Pal, Public Witness -2 Subhash Chand, Public Witness.-3 Maheshchandand Public Witness -2 Dinesh Pandey. ( 5 ) IT is indeed not disputed before us by learned counsel forthe appellant that Badri Nath had met with a homicidal death. Hehas also not challenged the conviction and sentence imposed onthe appellant under section 324 Indian Penal Code. for having caused simpleinjury to Rajinder Pal. The only confection raised by learnedcounsel for the appellant before us is that keeping in view the factswhich had come out from the statements of these four crucial witnesses. It is evident that there was no intention of the appellant tomurder Badri Nath. The dispute had arisen on a very trivialaccount when appellant had, in his over enthusiasm for havingsome deep rooted linking for liquor, was insisting Rajinder Palfor serving him some liquor on his birthday which Rajinder Palwas not willing to serve and the appellant came to the house ofrajinder Pal again to repeat perhaps the same request and wasbehaving in the manner which resulted in nuisance being created atthat place. On Rajinder Pal arriving there and on his makingefforts to see that the appellant goes away from the place. In asudden manner, the appellant thought of inflicting injuries onperson of Rajinder Pal. He had taken out the kirpan , which isusually carried by the persons belonging to the sikh community to which the appellant belonged and he struck the blow with thatweapon on the person of Rajinder Pal. ( 6 ) IT is urged by learned counsel for the appellant that it isbadri Nath who just intervened in the said incident and appellant. without any intention to kill Badri Nath, had struk a blow ona person of Badri Nath which landed on the vital pail of the bodyof the deceased. He urged that in view -of these facts, it cannotbe said that either the appellant had. any intention to kill Badrinath or he had any intention to clause that perticular injury onperson of Badri Nath which proved fatal. He has argued that atthe most the appellant could be imputed with the knowledge that the said injury was likely to cause death of Badri Nath and thecase would squarely fall within the provision of Section 304 Part-IIand he has relied on certain judgements of the Supreme Court ( 7 ) THE learned counsel for the State however, has contendedthat the appellant had tried to inffiet second blow to Rajinder Palafter having inflicted, one blow on his person which had landed onthe abdomen of Rajinder Pal and from these fact it could beevident that the appellant. had intended to cause fatal injuries torajinder Pal and when Badri Nath had intervenes he had deliberately caused the said injury to Badri Nath which was sufficient tocause death of Badri Nath in the ordinary course of nature. So,he has urged that the appellant has heen rightly convicted of anoffence punishable under Section 302 Indian Penal Code. for having cause thedeath of Badri Nath. ( 8 ) FACTS, as have been marated by vis, indeed are proved fromthe statements of the four eye witnesses who had no reason tofalsely implicate the appellant. It is also to be mentioned at thisstage that at the time the occurence took place at about12. 45 A. M. during the intervening night of 23rd and 24/06/1986, the electricity had failed and there wasonly moonlight available and is also quite clear that thhre was no provisions enmity between the parties. It is also to be mentioned at thisstage that at the time the occurence took place at about12. 45 A. M. during the intervening night of 23rd and 24/06/1986, the electricity had failed and there wasonly moonlight available and is also quite clear that thhre was no provisions enmity between the parties. Theappellant had no animus against Badri Nath or even againstrajinder Pal. It has also come in evidence that when the appellantwas escaping, Subash had cought hold of him and at that time,it is the appellant who asked Subhash that he should take care ofinjured father instead of keeping him in his custody and thereafterit is the brothers of the appellant who brought the scooter in whichthe deceased was taken to the hospital. In case of Jawahar Lal Vs. State of Punjab, AIR 1983supreme Court 284 (1) the facts were that there was no previousenmity between, the parties. The parties had some quarrel whichwas of a trivial nature. Sardari Lal, father of the appellant in thatcase, had requested Amrik Singh Public Witness to permit him to tie arope, of his canoy with the projection of the house but the said requestwas declined and after about 5/6 days of that incident, an underwear of Amrik Singh was picked up by Jawahar Lal one of theappellants, which was not being returned and therreafter, on thea day of the occurrence, at about 10 P. M. deceased Darshan Singhand Public Witness Santokh Singh and Amrik Singh had come to the bazarand there Sardari Lal had exhorted his companions to catchheld of Amrik Singh and he should not be allowed to escapeand at that point of time, the. appellant 1 and 2 in that case werearmed with a dagger each. The first appellant Jawahar Lal gavea blow on the left side of the chest of deceased Darshan Singh whofell down on the ground and when Public Witness Santokh Singh rushed to therescue of deceased Darshan Singh. the second apnellant Kewalkrishan gave two blows with a dagger and he also fell on theground. Darshan Singh was pronounced dead on being brought, tothe hospital. The question which arose for consideration before thesupreme Court was whether the appellant in that case had anyintention to kill the deceased or had any intention to cause thatparticular injury which turned out to be fatal. Darshan Singh was pronounced dead on being brought, tothe hospital. The question which arose for consideration before thesupreme Court was whether the appellant in that case had anyintention to kill the deceased or had any intention to cause thatparticular injury which turned out to be fatal. The Supreme Court ^found that the appellant was aged about 19 years and keeping inview the background of the trivial quarrel, it was held that therewas no intention of the said appellant to cause murder of Darshansingh and he did not particularly intended to cause that fatalinjury and he was held guilty of an offence punishable under Section 304 Part-II holding that the appellant could be imputed withthe knowledge that injury which he had caused was likely to resultin death of the deceased. ( 9 ) IF we compare the facts of this case with the facts of thepresent case, we find that in the present case also. there was noill-will between the parties prior to the date of the occurrencepw1. Rajinder Pal was having his birthday and appellant, whoapparently was friendly with Rajinde. r Pal, was asking to be entertained by serving him liquor which request was declined byrajinder Pal and the appellant wanted to persist with his requestand had reached the house of Rajinder Pal and created nuisanceand thereafter, when Rajinder Pal arrived, he found his grandfather trying to pacify the appellant and Rajinder Pal is stated tohave apologised to appellant. It has not come out in evidence as to ^why. Rajider Pal was tendering apologies to appellant. It maybe that Rajinder Pal,finding the appellant in an agitated mood. was trying to pacify him so that the appellant could leave thatplace. ( 10 ) BE as it may, the appellant. who belonged to Sikh Community was having the kirpan and he took out the kirpan fromthe dub of his trousers and inflicted an injury on Rajinder Pal andthereafter. Badri Nath intervened and he struck a blow. on the personof Badri Nath which landed on his chest, a vital part. In viewof these facts, it is not possible to hold that the appellant had inteation to kill Badri Nath or had intended to cause that particulara injury which proved, to be fatal. Badri Nath intervened and he struck a blow. on the personof Badri Nath which landed on his chest, a vital part. In viewof these facts, it is not possible to hold that the appellant had inteation to kill Badri Nath or had intended to cause that particulara injury which proved, to be fatal. It could be only said that hecaused that injury with the knowledge that the same was likely tocause death of Badri Nath and the case of the appellant wouldfall squarely under Section 304 Fart-11, ( 11 ) REFERENCE has also been made to Gurmail Singh Vs. Stateof Punjab, AIR 1982 Supreme Court 146 (2); Tholanvs. State oftamil Nadu, AIR 1984 Supreme Court 759 (3); Gurdeep Singhvs. Jaswant Singh AIR 1992 Supreme Court 987 (4) Surinderkumar Vs. Union Territory, Chandigarh, AIR 1989 Supreme Court 5094; (5 ). Hem Raj Vs. The State, 1990 (Supp.) Supremecourt Cases 2011 (6) and Jagtar Singh Vs. State of Punjab, A. I. R. 1983 Supreme Court 463. (7) ( 12 ) IT is not necessary to deal with these judgments in anydetail because each case has its own peculiar facts. The facts inthese judgments have some comparison with the facts of the presentcase and in all these cases, the Supreme Court found that Offencewhich has been made out in those particular cases was under Section 304 Part-11. ( 13 ) KEEPING up view the above discussion, we parti;allow the appeal and set aside the conviction and sentenceof the appellant under Section 302 Indian Penal Code. andinstead, we convert his conviction to Section 304 Part-11 Indian Penal Code for having caused the death of -Badri Nath and sentence him to under go rigorous imprisonment: for 10 years and to pay a fine Rs. 1,000 and in default of payment of fine, to undergo simple imprisonment for three Months. The appeal stands disposed.