Honble MEENA, J. – The appellant has preferred this appeal being aggrieved against the judgment dated, October 20, 1992 passed by Additional District & Sessions Judge, Deeg, Bharatpur, in Sessions Case No. 98/91 whereby he was convicted under section 302 read with Sec. 34 I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 7,000/-. In default of payment of fine he was awarded simple imprisonment for three months. (2). In short, the facts of the case are that a report (Ex. 2) was made at Police Station, Deeg by P.W. 4 Maksood, the son of the deceased Samshu. It was stated in the report that he, his father Samshu and his uncle Moj Khan were sleeping infront of their room in the night of June 29, 1991. At about 5 a.m. his father Samshu got up for urination and when he was sitting at place `B shown in its plan to pass urine, accused-appellant Idris and his younger son Badal came there with a bullock cart which was loaded with manure. They were having spades and seeing Shamshu, while he was passing urine, they inflicted one blow each with a spade. It was also stated that the appellant inflicted a blow of a spade on the head of Shamsu while co-accused Badal inflicted blow with the spade on his beck. Samshu fell down and hearing his alarm, Moj Khan, Rahmat and Ramjan came on the spot and they saw the incident. The prosecution case further is that P.W. 4, Maksood, first went to Police Chowki-Kho but the Incharge refused to accept the report and thereafter, the dead body of Samshu was taken in a tractor trolley and a written report was made at Police Station, Deeg. (3). After registration of the case, inquest report of the case, inquest report of the dead body Ex.P.1 and site plan Ex.P. 4 were prepared. Blook stained soil and control soil were also taken from the place of occurrence vide memo, Ex.P.7. The post-mortem of the dead body was conducted by Dr. Govind Singh and he found two incised wounds and three abrasions on his body. One incised wound was on the beck right side 4 cm. below right ear cutting vessel and nerves. This injury proved to be fatal as per the opinion of the doctor. The post-mortem of the dead body was conducted by Dr. Govind Singh and he found two incised wounds and three abrasions on his body. One incised wound was on the beck right side 4 cm. below right ear cutting vessel and nerves. This injury proved to be fatal as per the opinion of the doctor. The second incised wound was on the right parietal bone and it was a simple injury. Three abrasions were on the right ear, middle stern and middle of chest and they were simple in nature. As per the prosecution case, the co-accused Badal inflicted fatal injury on the neck of the deceased, while the appellant inflicted the head injury which was found to be simple. The co-accused Badal being a juvenile offender, was sent to face trial in Juvenial Court and the appellant faced the trial in the Court of learned Additional District and Sessions Judge, Deeg. During trial, prosecution examined 10 witnesses. The accused-appellant denied his involvement in the crime in his statement under section 313 Cr.P.C. and one witness was examined in defence. After conclusion of the trial, the appellant was convicted and sentenced as indicated above. (4). Learned counsel appearing for the appellant vehemently contended that the prosecution versions is not reliable and that the report Ex.P.2 was not the first version of the incident. It was also contended that none of the prosecution witnesses was an eye- witness of the incident and in order to implicate the appellant and his brother they have been made up the witnesses. Lastly it was contended that the offence does not travel beyond 325 I.P.C. (5). We have given our careful consideration to the above submissions. The judgment under appeal and record of the case were minutely examined by us. P.W. 4 Maksood is the son of the deceased. The report of the incident has been made within two hours after the incident and after going through the statement we are convinced that he is a reliable witness and his testimony was rightly believed by the trial Court. This witness has categorically stated that the appellant inflicted one blow with a spade which landed on the head of Samshu, while the second blow with a spade was inflicted by the co-accused Badal which struck on his neck. This witness has categorically stated that the appellant inflicted one blow with a spade which landed on the head of Samshu, while the second blow with a spade was inflicted by the co-accused Badal which struck on his neck. It was also deposed by him that 2-3 months prior to the incident there was some quarrel between him and the accused persons and he was assaulted by the accused persons. His father Shamshu was also slept by the appellant Idris when he went to his house to pacify the dispute. He has explained as to why the report written by him was not submitted at Police Station, Deeg and according to him the said report was addressed to the incharge, Police Chowki – Kho who refused to accept the same. Thereafter, second report was addressed to S.H.O. Police Station, Deeg. We found this explanation to be reasonable and we are also of the opinion that this witness being the son of the deceased would not like to screen the real offender in order to implicate the appellant or his brother. The statement this witness finds corroboration from the madical report as well as from the statement of P.W. 1 Raju who reached at the spot immediately after the incident and found injuries on the head and neck of Samshu deceased. (6). It is true that the testimony of P.W. 7 Moj Khan has been disbelieved by the trial Court, but it does not effect in any manner so far as the testimony of P.W. 4 Maksood is concerned. Even for arguments sake if we exclude the evidence of P.W. 8 Rehmat and P.W. 9 Ramjan who claim to have reached on the spot and seen the incident, the evidence of Maksood is quite reliable and firm to convict the appe- llant. In our view the trial Court rightly held that the appellant Idris inflicted a spade blow on the head of the deceased while his brother Badal inflicted second blow on his neck. (7). The next important question then arises for consideration is as to what offence is made out against the appellant? From the prosecution case it appears that only one blow was given by the appellant with a spade and that too was with light force as the injury on the head has been found to be simple in nature. (7). The next important question then arises for consideration is as to what offence is made out against the appellant? From the prosecution case it appears that only one blow was given by the appellant with a spade and that too was with light force as the injury on the head has been found to be simple in nature. It does not appear that the appellant repeated second blow as there was no other injury on the body of the deceased except the neck injury by a sharp edged weapon which was assigned to co-accused Badal. The weapon spade is a common weapon which is kept by the agriculturist and normally this weapon is not used for inflicting injury. As per the prosecution case, appellant and his brother were coming with a bullock-cart loaded with manure and as such, the spade could be taken by them in the ordinary course of nature for the purposes of loading and unloading the manure. There was no serious motive behind the quarrel. Thus, taking into consi- deration the totality of the circumstances we have no hesitation in holding that the appellant had no intention to cause murder of Samshu nor it could be said that he had the knowledge that his act was likely to cause his death. He did not cause any blow after the second blow was given by his brother Badal, as such, it cannot be said that he shared the common intention to the extent of causing death of the deceased. He, therefore, can be convicted under Section 325 I.P.C. with the aid of Section 34. So far as the question of sentence is concerned, the appellant has already remained in jail for more than 2 1/2 years and in our view, the sentence of imprisonment already undergone by him will meet the ends of justice. (8). Consequently, the appeal is allowed in part. The conviction and sentence of the accused appellant under section 302 read with Sec. 34 I.P.C. is set aside. Instead, he is convicted under Section 325 read with Sec. 34 I.P.C. and sentenced to imprisonment already undergone by him and to pay a fine of Rs. 500/-. In default of payment of fine, he will undergo simple imprisonment for two months. Two months time is granted to the appellant to deposit the amount of fine. Instead, he is convicted under Section 325 read with Sec. 34 I.P.C. and sentenced to imprisonment already undergone by him and to pay a fine of Rs. 500/-. In default of payment of fine, he will undergo simple imprisonment for two months. Two months time is granted to the appellant to deposit the amount of fine. The appellant is in jail, as such, he shall be released forthwith if not wanted in any other case.