ORDER S.B. Majmudar, J. - Leave granted. Heard learned counsel for the parties. The notice was limited only to the nature of offence committed by the appellant. It has been found by the courts below that the appellant gave stick blows on the head of the deceased for which the deceased died on the next day. Dr. Tank who had held post mortem examination has stated that patient could have been saved had he been brought to the hospital immediately after sustaining the injuries. It is therefore apparent from the evidence of the Dr. Tank that such injuries were not so fatal as would invariably cause death of the deceased. In the aforesaid facts and circumstances, it may be reasonably contended by the appellant that he did not intend to murder the deceased but caused serious injuries on the head of the deceased which were likely to cause death. In the aforesaid facts, the conviction under Section 304 Part I and not under Section 302 is warranted. The learned counsel for the State has submitted that number of stick blows were given on the head of the deceased which caused the death of the deceased on the very next. Such injuries by their nature were found to be fatal causing death under the normal circumstances. 2. After considering the facts of the case, and considering the evidence of Dr. Tank it appears to us that the appellant might not have intended to cause the murder of deceased given stick blows on the head of the deceased which being quite serious were likely to cause death. In the aforesaid facts, in our view, the appellant should no be convicted under Section 302 I.P.C. but should be convicted under Section 304 Part I. We therefore set aside the conviction under Section 304, Part I, I.P.C. and sentence him to suffer rigorous imprisonment for five years. The appeal is allowed to the aforesaid extent. Appeal allowed partly. For Citation : 1995 4 Crimes 280