N. L. GANGULY, J. ( 1 ) CRIMINAL appeal No. 115 of 1980 has been preferred by Rati Ram and 2 others while Criminal Appeal No. 1011 of 1980 has been preferred by Rati Ram alone as Jail appeal on behalf against the judgment passed by Sri H. C. Shukla. V Addl. Sessions Judge, Hamirpur dated 20-11-1979, convicting Rati Ram under S. 302, IPC and sentencing him to imprisonment for life and convicting Murlidhar and Chhakki Lal, appellant Nos. 2 and 3 under Sec. 323 read with S. 34 IPC sentencing them to six months R. I. Both the appeals are connected. ( 2 ) THE prosecution case is that on 9-6-1978 at about 12 a. m. Ghana Rams Daughter-in-law Smt. Kirti and daughter Smt. Kasturi were talking both at Sunder Lals well. Ghane Rams son Murlidhar went to the well with his bullocks to make them drink water. A puppy also went with Murlidhar, appellant. Murlidhar, appellant No. 3 was taking bath at the well. The puppy barked at Murlidhar, appellant. Murlidhar s/o Ghane Ram beat the puppy. Thereupon, Lalji protested and a verbal quarrel ensued. Thereafter Murlidhar went to his house which is at a distance of 25 paces from the well. He returned along with his brothers Chakki Lal and Rati Ram. Chakki Lal was armed with lathi and Rati Ram was armed with an axe. All the three accused appellants began to abuse Lalji. In the mean time. Ghana Ram and his brother Sura also arrived at the well and protested why the accused persons were hurling abuses. Thereupon, Rati Ram gave a blow of axe on Lalji. Appellants Chhakki Lal and Rati Ram began to beat Lalji who also plied lathi in self-defence. Thereupon, the appellants fled away to their house: The occurrence took place in village Aunta which is 5 1/2 miles from PS Rath Distt. Hamirpur. Ghana Ram arranged for a bullock cart and took his son Lalji to hospital. Lalji died at the gate of the hospital. FIR was lodged at the police station which was recorded by Head Constable Sri Ram Abhilash Shukla at PS Rath. On the basis of the report the case was registered under Section 302, IPC Sri Lallu Singh, Sub-Inspector of Police started the investigation the same day. Lalji died at the gate of the hospital. FIR was lodged at the police station which was recorded by Head Constable Sri Ram Abhilash Shukla at PS Rath. On the basis of the report the case was registered under Section 302, IPC Sri Lallu Singh, Sub-Inspector of Police started the investigation the same day. He recorded the statement of Ram Abilash Shukla, panchayatnama was prepared after calling the witnesses in their presence, "khaka Lash" and challan lash were prepared. Letter for post mortem was written and sent to the Medical Officer, Rath. Separate letter was also sent to the Medical Officer Rath for taking the underwear from the body. The Investigating Officer took the bush-shirt etc. from the dead body. Memos were prepared. Blood-stained shirt of Ghana Ram was also taken and memo was prepared. The Investigating Officer visited the place of occurrence at village Aunta, recovered the blood-stained and plain earth from the place of occurrence. Memo of recovery of earth and blood-stained earth was prepared by him. The Investigating Officer recorded the statements of Smt. Kirti and Smt. Kasturi in their village. The witness of panchayatnama was also examined under S. 161 Cr. P. C. The accused were not traceable in their vi1lage, local inspection was made, inspection notes and site plan were prepared by the Investigating Officer. The articles recovered from the village were sealed which were deposited at the police station on Investigating Officers return there. The Investigating Officer again visited the village Aunta in search of the appellants but they were not found. The appellants Murlidhar and Rati Ram surrendered on 13th June 1978. The statements of the accused-appellants Murlidhar and Rati Ram were recorded in the district jail, Hamirpur. The articles, blood stained clothes, plain and blood-stained earth were to be sent for chemical examination, report to that effect was made by the Investigating Officer. After receiving the report of the post mortem examination and completion of recording of the statements etc. , charge sheet was submitted. The appellants pleaded not guilty and claimed to be tried. ( 3 ) ALL the three appellants, who are brothers, filed a written statement after their statements and stated that they have been implicated in the case for creating a defence for themselves by the informant. The appellants stated that no incident took place at the well of Sunder Lal. The appellants pleaded not guilty and claimed to be tried. ( 3 ) ALL the three appellants, who are brothers, filed a written statement after their statements and stated that they have been implicated in the case for creating a defence for themselves by the informant. The appellants stated that no incident took place at the well of Sunder Lal. When the puppy of Ghana Ram barked at Murlidhar on the way and the Murlidhar beat the puppy with lathi, Lalji chased Murlidhar and Murlidhar entered the house. Shortly afterwards, Lalji and Ghana Ram came at the house of the accused, armed with axe and lathis, respectively. Ghana Ram and Lalji attacked Chhakki Lal and Rati Ram, appellants. In the mean time, Rati Ram, appellant snatched the axe of Lalji and wielded it in his self-defence which resulted in the death of Lalji. However, the accused-appellants did not produce any defence witness. ( 4 ) THE prosecution in support of its case, examined PW 1 Ghana Ram, PW2 Smt. Kashturi Devi, and PW4 Smt. Kirti, as witnesses of fact. The aforementioned three witnesses stated in their evidence the facts, narrated in the FIR. ( 5 ) SRI I. N. Mulla, learned Counsel for the appellants placed the statement of Smt. Ram Kirti, PW4 and submitted that she in her cross-examination stated that the incident had taken place near her house while the well of Sunder Lal which is the place of occurrence according to the prosecution F. I. R. , is situated at a distance of 3 furlongs from her house. The learned Counsel for the appellants submitted that PW2 Smt. Kasturi had stated in her cross-examination that the deceased received the Kulhari injury near the raised platform of the well (Kunwe Ke Jagai Ke Pas ). She also stated that the deceased fell at the same place where the axe was inflicted on him. She definitely stated that it is not correct to say that the deceased Lalji had moved and fell at a different place. The learned Counsel for the appellants indicated from the site plan Ext. Ka 13 where the place marked with a cross from where the bloodstained earth was recovered and is stated to the place of assault on Lalji deceased is at a distance of 34-35 paces, from the abadi of village Aunta. The learned Counsel for the appellants indicated from the site plan Ext. Ka 13 where the place marked with a cross from where the bloodstained earth was recovered and is stated to the place of assault on Lalji deceased is at a distance of 34-35 paces, from the abadi of village Aunta. He also submitted that the cross-mark shows in the site plan is practically in between the rasta and the well there PW3 and PW4 were taking bath. The abadi of village Aunta and house of Sunder Lal is shown towards east of the rasta. From the place of occurrence marked by x in the site plan, it is pointed out that the distance between the said x mark and the rasta is 21 paces. She also stated that at the time when axe injury was given on Lalji deceased, her father Ghana Ram was corning with lathi slowly. He was not coming running, but she also stated that her father Ghana Ram, PW1 was only at a distance of 1 or 2 paces when Lalji was assaulted with axe. ( 6 ) THE learned Counsel for the appellants placed the evidence of PW4 Smt. Ram Kirti who stated that the well in question is at a distance of 3 furlongs from her house. The learned Counsel argued that it is also admitted that there is a well just near the door of the informant Ghana Ram where the witness admitted that the water of the said well is used for drinking, some times cattle were also given water from the said well, some times they took their bath at the said well near their own house. The learned Counsel submitted that this shows that PW2 Smt. Kasturi and PW4 Smt. Ram Kirti would not go at a distance of 3 furlongs for taking bath. The evidence of PW1 Ghana Ram itself shows that the well of Sunder Lal where the occurrence took place, is not meant for drinking water. The water of the said well is brakish and is, thus, used for bath purposes. It is quite natural for PW2 Smt. Kasturi and PW4 Smt. Ram Kirti to have gone there to take bath at the well of Sunder Lal. The water of the said well is brakish and is, thus, used for bath purposes. It is quite natural for PW2 Smt. Kasturi and PW4 Smt. Ram Kirti to have gone there to take bath at the well of Sunder Lal. The well where PW2 and PW4 were taking bath and Murlidhar who had gone there to take bath and have beaten the puppy, cannot be disputed and the evidence of PW3 Sunder Lal proved that the plain and blood-stained earth were recovered from the spot from near the disputed well. The defence has not challenged in the cross-examination the testimony of PW3 Sunder Singh about the place from where the blood-stained and plain earth were recovered and sealed in his presence. It is also to be noted that PW2 Smt. Kasturi on the date of her evidence was shown to be 16 years of age. The learned Counsel wanted to capitalise her statement that the deceased had received the axe injury near the "jagat" of the well. It has not been clarified by the defence that near the Jagat whether mean very close and adjoining the jagat of the well. 15 paces from the Jagat of the well can also be described as near the jagat of the well. This witness is a village girl, appears to be uneducated and her statement cannot be discarded only because of the fact that near the jagat would mean very close and adjoining to the jagat. The statements of PW1 Ghana Ram, PW2 Smt. Kasturi and PW4 Smt. Ram Kirti are all consistent in all material points. It cannot be doubted that the occurrence did take place in the manner at the place on the date of incident, as stated by the prosecution. ( 7 ) THE deceased Lalji had received only one incised wound 8 cm x 3 cm x brain deep on the centre of head, vertical in direction, antero posterior 8 cm above base of nose in perietal area. Brain matter came out of wound. Bone completely cut beneath the injury. Dr. H. C. Pandey, PW5 had proved the injuries of Ghana Ram. The injury report of Ghana Ram is proved and marked as Ext. ka 5. Dr. Pandey had also performed the post-mortem examination of the dead body of Lalji. The post-mortem examination report is proved as Ext. ka 6. Bone completely cut beneath the injury. Dr. H. C. Pandey, PW5 had proved the injuries of Ghana Ram. The injury report of Ghana Ram is proved and marked as Ext. ka 5. Dr. Pandey had also performed the post-mortem examination of the dead body of Lalji. The post-mortem examination report is proved as Ext. ka 6. The injuries of Ghana Ram are quoted as under : 1. Lacerated wound 3 cm x 5 cm x scalp deep on lt. side of head, frontal region 7 cm above left eye-brow and 3 em from mid plane oblique in direction. Inflammation present in head. 2. Lacerated wound 3. 5 cm x 0. 8 cm x scalp deep on left side of head perietal region 7 cm above left ear oblique in direction. Inflammation present in abdomen. 3. Multiple red bruises with slight bluish tinge on left side of back in an area of 20 cm x 12 cm upper part. ( 8 ) PW 7 Sri A. V. Singh is a Pharmacist at the Male Hospital, Rath to prove that in the injury register on 10-6-78, Chhakki Lal, appellant has received the injuries which are shown to be recorded in handwriting of Dr. H. C. Pandey. ( 9 ) AFTER hearing the learned Counsel for the appellants and perusal of the evidence on record, we are satisfied that the prosecution case is proved and it is apparent from the evidence on record that Rati Ram, appellant caused axe injury on the head of the deceased Lalji who died of the said injury before reaching the gate of the hospital of Rath. The defence case is that the marpit took place in between the well and the house of accused-appellants is not believable. The blood was found in between the well and the house of the appellants which is the Gaon Sabha land close to the jagat of the well. Lalji had gone there to well with his bullocks to drink the water. It is not believable that he would have carried an axe when going to well for getting the bullocks to drink water. The house of Lalji deceased is at a distance of 2-3 furlongs. Lalji had gone there to well with his bullocks to drink the water. It is not believable that he would have carried an axe when going to well for getting the bullocks to drink water. The house of Lalji deceased is at a distance of 2-3 furlongs. 1t is not believable that he could have brought the axe so soon and the deceased and Dhana Ram were likely to cause injuries to the appellants; in the mean time Rati Ram took the axe of Lalji deceased and wielded in self-defence. It is not the case nor shown from any evidence that Chhakki Lal or Rati Ram, appellants received any incised wounds which could have been caused by axe. We do not feel inclined to accept the defence arguments that Dhana Ram and Lalji were likely to cause injuries to the accused-appellants and in self-defence Rati Ram, appellant took the axe and wielded in self-defence. ( 10 ) THE learned Counsel for the appellants submitted that the manner of the occurrence and evidence on this aspect do not show that there was any enmity between the deceased or PW1 Dhana Ram and the appellants. The occurrence took place after a short verbal altercation, exchange of abuses and in a spur of the heated moment, Rati Ram, appellant inflicted only one axe injury on the head of the deceased Lalji. ( 11 ) THE learned Counsel for the appellants submitted that from the aforesaid facts in the prosecution case, appellant Rati Ram could not be convicted under Sec. 302, I. P. C. The well in question where PW2 Smt. Kasturi and PW4 Smt. Ram Kirti had gone to take bath and where Murlidhar hit the puppy is not the property of either the informant or the accused-appellants. It is the well of Sunder lal. The place where the occurrence took place is Gaon Sabha land. The quarrel was a very trifling matter arising out of hitting of the puppy and exchange of abuses. Thus, it is clear that the accused-appellants had no previous motive to cause murderous attack on the deceased Lalji or any of the witnesses of the prosecution. It appears that the appellant Rati Ram lost control and due to his temper, assaulted with an axe. It cannot be said that it was a case of intentional murder. Thus, it is clear that the accused-appellants had no previous motive to cause murderous attack on the deceased Lalji or any of the witnesses of the prosecution. It appears that the appellant Rati Ram lost control and due to his temper, assaulted with an axe. It cannot be said that it was a case of intentional murder. It is apparent from the facts and circumstances of the case that the case of the appellant Rati Ram is covered by thirdly of Section 300 of Indian Penal Code. Section 300 thirdly is quoted as under :"thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or. . . "this clause is in two parts. The first part is a subjective one which indicates that injury must be an intentional one and not an accidental one. The second part is of objective, in that inflicting of an injury intended to be caused, the court, must be satisfied that it was sufficient in the ordinary course of nature to cause death. From the fact of the present case, it appears that appellant Rati Ram did not intend causing death or intention of causing such bodily injury as is likely to cause death. From the facts, it is apparent that in the present case, the act of appellants or Rati Ram would come within the Ist part of Sec. 304, I. P. C. The learned Counsel cited AIR 1968 SC 1390 . Laxman Kalu v. State of Maharashtra. ( 12 ) THE learned Counsel for the appellants also placed reliance on 1988 SCC (Cri) 905 : ( AIR 1988 SC 2136 ), Sunder Singh v. State of Rajasthan. According to the prosecution case, there was a dispute in regard to right to draw water from the well Meliwala situate in village Dhani Berose. The complainant and the appellant along with his 3 sons and several others had undisputed right to draw water in turn from the same well. There were in all 16 sharers to draw water. On the date of incident, there was a bit of quarrel between the complainant and the accused as to the right of draw water. There was rival claim between the parties for drawing water. There were in all 16 sharers to draw water. On the date of incident, there was a bit of quarrel between the complainant and the accused as to the right of draw water. There was rival claim between the parties for drawing water. During the course of dispute, the appellant of the said case with his gun fired at the deceased who succumbed to the injury sustained. The Honble Supreme Court in the said facts of the case was also of the view that the case would be covered under Sec. 304, Part-I of I. P. C. ( 13 ) AFTER considering the circumstances of the case, we consider it appropriate that the case against the appellant Rati Ram comes within the thirdly of Sec. 300, I. P. C. and the conviction could be made under Sec. 304, Part-I, I. P. C. The convictions and sentences of Sec. 323 read with Sec. 34, I. P. C. for six months R. I. to Murlidhar, appellant and Chakki Ram, appellant No. 3 are concerned, we are of the view that they had no pre-planned common intention to commit the offence. The incident itself took place in a heated moment when the accused and the informant Dhana Ram and Lalji deceased were involved in exchange of abusing after barking of the puppy and hitting the puppy by Murlidhar. Their sentences of six months R. I. by the Sessions Court deserves to be modified. They were convicted and sentenced on 20/11/1979. The appeal was filed and these two appellants Murlidhar and Chakki Lal were directed to be released on bail on 18-1-80. We do not consider it necessary to send these two appellants to serve further sentence after more than 15 years 2 months. They appear to have served the sentences of about a month. We consider it sufficient that their conviction under Sec. 323/34, I. P. C. is maintained. However, the sentence is modified as already undergone. We do not consider it necessary to send these two appellants to serve further sentence after more than 15 years 2 months. They appear to have served the sentences of about a month. We consider it sufficient that their conviction under Sec. 323/34, I. P. C. is maintained. However, the sentence is modified as already undergone. The conviction and sentence of appellant Rati Ram under Sec. 302, I. P. C. is modified to Sec. 304, I. P. C. , Part I, I. P. C. and considering the facts and circumstances that the appellant Rati Ram was about 25 years at the time of occurrence, it is more than 15 years now from the date of occurrence, the appellant Rati Ram be sentenced for a period of six years R. I. ( 14 ) THE above appeals are partly allowed and the conviction and sentence of appellant Rati Ram is modified under Sec. 304, Part-I, I. P. C. and sentenced to six years R. I. He is on bail. He shall be taken into custody forthwith to serve out the sentence. ( 15 ) THE appeal of Murlidhar and Chhakki Lal, appellants Nos. 2 and 3 is partly allowed on the question of sentence. Their sentence is modified as already undergone. They need not surrender. Their bail bonds are cancelled. ( 16 ) R. N. RAY, J. :- I agreeappeal partly allowed. .