JUDGMENT 1. - The appellant was the accused in Session's case No. 81 of 1992 on the file of the Addl. Session Judge, Chhabra district Bara. He was found guilty Under section 302 IPC convicted there under and sentenced to imprisonment for life and fine of Rs. 500 (in default to further undergo one month simple imprisonment). 2. Aggrieved by the conviction and sentence the present action for filing the appeal has been resorted to. 3. The facts of the case need not be given in detail as Mr. A.K. Gupta, the learned counsel appearing for the appellant has restricted his argument on the questions of offence committed by the appellant. The argument of the learned counsel is that taking into consideration all the facts and circumstances of the case, the appellant can be held liable for the offence Under section 325 IPC and not Under section 302 IPC. To appreciate the above argument, the necessary facts of the case may be given. 4. The incident had taken place on 24.11.89 at 5.30 p.m. The FIR was launched at 7.20 p.m. by PW 7 Banwari Lal stating that appellant levelled allegation against Naval (since deceased) for committing theft of shoes and inflicted fist blows on abdomen and `saria blow (iron rod)' on the head of abdomen. Naval was taken into hospital where he succumbed to his injuries. Police Station, Chhabra, submitted a charge-sheet and case was submitted to the trial court. Charge Under section 302 IPC was framed against the appellant. The appellant denied charge and claimed trial. Prosecution examined as many as 9 witnesses and filed some documents. The appellant also filed some documents in support of his defence. The trial court has, however, on consideration of evidence recorded the order of conviction and passed the sentence mentioned herein above. 5. In order to appreciate the argument of Mr. A.K Gupta, learned counsel for the appellant, we have to examine the injuries sustained by the deceased. Deceased Naval, before his death was medically examined by Dr. Ashok Kumar Jain (PW 1) on 24.11.89 at 6.45 p.m. A perusal of injury court (Ex. P 1) goes to show that Naval Sustained following injuries on his person - (i) Swelling 2.5 inch x 2.5 inch on occipital area. (ii) Bruise 1 inch x 1/2 inch over left side of nech 2 inch below angle of madibile. Ashok Kumar Jain (PW 1) on 24.11.89 at 6.45 p.m. A perusal of injury court (Ex. P 1) goes to show that Naval Sustained following injuries on his person - (i) Swelling 2.5 inch x 2.5 inch on occipital area. (ii) Bruise 1 inch x 1/2 inch over left side of nech 2 inch below angle of madibile. (iii) Abrasion 1 inch x 1/4 inch over right side of back under scapula. (iv) Abrasion (3 numbers) 1/2 inch x 1/2 inch each posterious aspect of right elbow and (v) Abrasion 1/2 inch x 1/2 inch over vertevral column level. According to medical jurist all the above injuries were caused by blunt weapon. He advised ex- ray of injury No. 1. Naval died on 25.11.89 and post-mortem of dead body was conducted by Dr. Ashok Kumar Jain (PW 1). Cause of death of the deceased Naval was cardio-respiratory insufficiency secondary to fracture and dislocation of second cervical vertebra. 6. Informent Banwari Lal (PW 7) was not an eye-witness of the occurrence he Instituted FIR Ex.D. 3 on the basis of narration of Incident given to him by Babu Lal and Laxman, whom he named in the FIR Babu Lal (PW 2) has stated in his examination-in-chief- "Dhani Bai Ka Ladka Naval Tha, Jise Prabhulal Pakadkar Uske Sir Ko Farsh Per De Raha Tha. Prabhulal Naval Se Kah Raha Tha Kl Tune Mere Joote Churayen Hai, Prabhulal Ne Char Soot Ke Mote Cohe Ke Taar Per Naval Ka Sir Patak Raha Tha. Jisase Sir Mein Lag Rah I Thi Prabhulal Naval Ko Hatho, Ghunso Aur Laaton Se Maar Raha Tha." (Naval son of Dhani Bai was cought hold by Prabhu Lal who was pushing his head on the floor. Prabhu Lal was making allegation against Naval for committing theft of his shoes. Prabhu Lal was pushing the head of Naval on a iron wire of small thickness of four gauze and thereby causing injury on his head. Prabhu Lal was also inflicting blows with the help of fists and legs). 7. Prabhu Lal was making allegation against Naval for committing theft of his shoes. Prabhu Lal was pushing the head of Naval on a iron wire of small thickness of four gauze and thereby causing injury on his head. Prabhu Lal was also inflicting blows with the help of fists and legs). 7. Another eye-witness Laxman (PW 5) has stated - "Prabhu Lal Ne Merein Bhai Ke Pahale Sar Ia Kl Sir Ke Pichche Kl Taraf Mari Phir Laato Aur Ghunso Se Bhi Merein Bhai Naval Ke Saath Marpeet Kl Laat Ghunso Kl Merein Bhai Ke Pait Mein Mari Thi." (Prabhu Lal inflicted iron rod blow on the back side of the head and thereafter inflicted blow with the help of fists and legs on stomach). 8. Banwari Lal (PW 7) had given eye-witness account in the trial court and stated the Prabhu Lal pushed Naval on the floor and inflicted blows with the halp of iron rod, fists and legs. In the cross-examination he has stated that- "SHYAM LAL NE HI MUJHE BATAYA THA KI PRABHU LAL NE NAVAL KO FARSH PER PATAK-PATAK KAR LAAT, GHUNSO AUR SARIA SE MAARA THA" (Shyam Lal told him that Prabhu Lal pushed Naval on the floor and inflicted blows with the help of iron rod, legs and fists). 9. Shyam Lal (PW 9) has stated - "Prabhu Lal Ne Naval Kl Girbaan Pakadkar Uske Sir Ki Taraf Se Jameen Ki Farsh Per Teen Chaar Baar Uthakar Patka Phir Prabhu Lal Ne Naval Ke Pait Mein Ghuson Kl Maari Phir Iske Baad Naval Behosh So Gaya Iske Baad Uska Bhai Bada Lakshman Aur Banwari Lal Aayen" (Prabhu Lal caught Naval from his collar and pushed his head 3-4 times on the floor thereafter Prabhu Lal inflicted fists blow on the stomach of Naval, who became unconscious thereafter his elder brother Lakthman and Banwari Lal came over there) stomach of Naval and Naval became unconscious thereafter his elder brother Lakshman and Banwari Lal came over there). 10. A look at the testimony of the eye-witnesses produced by the prosecution, reveals that the appellant levelled allegation for committing theft of shoes against deceased Naval and thereafter pushed his head on the floor and inflicted fists and legs blows. 10. A look at the testimony of the eye-witnesses produced by the prosecution, reveals that the appellant levelled allegation for committing theft of shoes against deceased Naval and thereafter pushed his head on the floor and inflicted fists and legs blows. We are unable to accept the testimony of witnesses Banwari Lal and Lakshman (real brother of deceased Naval) about inflicting of iron rod blow by the appellant on the head of the deceased. The occurrence took place on the spur of moment and the deceased sustained injuries on account of his head pushed on the floor by the appellant. 11. As stated earlier the only argument made by the learned counsel for the appellant is that under the facts and circumstances of the case the offence does not travel beyond section 325 IPC. To substantiate his argument the learned counsel contended that there was no serious motive for commission of the offence and even according to prosecution case itself the incident took place all of sudden. The appellant did not intend to commit murder of Naval. According to medical injury report (Ex.R1) as many as five injuries were found on the person of the deceased and all were caused by blunt weapon and the cause of death was cardio-respiratory in sufficiency.On the other hand Mr. R.S. Agrawal the learned public prosecutor supported the conviction of th appellant for the offence Under section 302 IPC. 12. After giving our thoughtful consideration to the above submission, we are of the opinion that the contention of the learned counsel for the appellant has merit. As stated earlier there was no serious motive behind the incident and the incident had taken place on the spur of moment, on a very petty matter. The circumstances under which the deceased sustained injuries go to show that the appellant never intended to commit murder of deceased Naval and he had also no intention to cause the particular injury on the person of the deceased. It seems that the appellant could not control his anger and started pushing the head of the deceased on the floor 3-4 times and also inflicted blows with the help of fists and legs. The appellant can be held guilty for committing fracture and dislocation on second cervical vertabra which caused cardio-respiratory insufficiency and injured succumbed to his injuries. It seems that the appellant could not control his anger and started pushing the head of the deceased on the floor 3-4 times and also inflicted blows with the help of fists and legs. The appellant can be held guilty for committing fracture and dislocation on second cervical vertabra which caused cardio-respiratory insufficiency and injured succumbed to his injuries. We are therefore, of the confirm opinion that the appellant held liable Under section 325 IPC for causing grievous injury herein mentioned above on the person of Naval. 13. Consequently we allow this appeal in part the conviction and sentence of the appellant for the offence Under section 302 IPC is set aside. He is convicted Under section 325 IPC. He is in a jail for a period of more than 3 years. In our opinion, the sentence of imprisonment already undergone by him shall meet the ends of justice. He be released forthwith if not wanted in any other case. *******