JUDGMENT 1. - The appellant Babu Lal was the accused in sessions case No. 144 of 1993 on the file of the Addl. Session Judge, Jhalawar. He was found guilty U/s. 302 and 324 IPC, convicted thereunder and sentenced to imprisonment for life and fine of Rs. 1000 (in default to further undergo one month rigorous imprisonment) and one year R.I. and fine of Rs. 1000 (in default to further undergo one month R.I.) respectively. 2. Aggrieved by the conviction and sentence the present action for filing the appeal has been resorted to. 3. At the outset we may stated that we have not called upon to go into details having regard to the general circumstances present in the case. It is true that an occurrence took place which ended fatally and the appellant was the aggressor. The short question is, whether the offence U/s. 302 or U/s. 304 Part (II) is made out. 4. From the facts set out in details in the judgments of the trial court, it may be noticed that incident had taken place on a spur of moment about a petty matter. Babu Lal, the accused appellant was stopped by the deceased Sheo Lal and his brother Panna Lal, while taking "dry-shurbs (Sukhay ahead)", belonging to them. On being questioned as to why he was carrying their dry shurbs. Babu Lal started abusing them but they were successful in snatching dry shrubs from him, Thereafter Babu Lal and his wife Rodi attacked them. Babu Lal inflicted "farsi" below on the back side of his head. He also caused injury on the head of Rodi. Sheo Lal succumbed to his injury. 5. Autopsy of dead body of Sheo Lal was conducted by Dr. Prem Chand Khandelwal (PW 23) who found following injuries:- (i) Incised wound 11/2 inchx 1/4 inchx 1/4 inch on left parietal bone. (ii) Swelling haematoma 4 inch x 3 inch on parietal bone. In the internal examination Blood clotting was found on the right parallel region. The cause of death of the deceased was comma on account of head injury. 6. On being medically examined informant Rodu was found to have sustained incised wound on left parietal bone measuring 3 inch x 1/4 inch x 1/4 inch. The injury was shown as simple in nature. The contention of Mr. The cause of death of the deceased was comma on account of head injury. 6. On being medically examined informant Rodu was found to have sustained incised wound on left parietal bone measuring 3 inch x 1/4 inch x 1/4 inch. The injury was shown as simple in nature. The contention of Mr. Deepak Goyal, learned counsel for the appellant, is that the incident occurred all of a sudden and without pre-meditation. The immediate cause of occurrence was quite insignificant and trivial as the incident was off shot of an oral altercation in connection with the dry shrubs. It has been contended by the learned counsel that the appellant is a young man and he inflicted a solitary injury to the deceased on being provoked by the quarrel and in the facts and circumstances it can not be said that the appellant either intended to cause death or to cause particular injury and the "Farsi" blow was by chance landed on the head. 7. The learned Public Prosecutor has also not disputed the contention of the learned counsel that occurrence took place suddenly and the appellant inflicted single blow on the head of the deceased. 8. The crucial question for determination in this appeal is confined to a limited question whether the case is converted by clause thirdly of Section 300 IPC or not. If clause thirdly is attracted, the offence would be of murder punishable U/s. 302 IPC otherwise it would be culpable homicide not amounting to murder punishable U/s. 304 IPC. In Tholan v. State of Tamil Nadu (AIR 1984 Supreme Court 759) the Apex Court has dealt with the circumstances under which the accused started remonstration using filthy language against certain organisers of a chit-fund company who had no connection with the deceased. The deceased came out of his house and asked the accused to go away. The accused on spur of moment gave only one blow with Knife to the deceased and pushed him to some distance. It was held that though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a Knife and, therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to cause death. In such situation though he could not be convicted U/s. 302, he was held guilty of committing an offence U/s. 304 Part (II). In such situation though he could not be convicted U/s. 302, he was held guilty of committing an offence U/s. 304 Part (II). 9. In Kulwant Rai v. State of Punjab (AIR 1982 Supreme Court 126) the Apex Court has dealt with the circumstances under which short quarrel was followed by assault. Accused inflicted one blow on the person of deceased with a dagger that landed in epigastrium area and deceased succumbed to the injury. There was no enmity between the parties prior to the incident and it was held that the accused inflicted an injury which he knew to be likely to cause death and the accused was convicted U/s. 304 Part II IPC. 10. In the instant case admittedly there was no previous enmity between the parties and the incident had taken place all of sudden without pre-meditation on the spur of the moment. The immediate cause of the incident, which has come on record was sudden quarrel in dispute pertaining to dry shurbs and the immediate cause of the occurrence was quite insignificant and trivial. A solitary below was given by him with no attempt to another blow. Taking into consideration the totality of the circumstances, it appears that the solitary blow was given by the appellant probably being provoked by the quarrel and altercation in connection with dry shrubs. It can not be held with certainty that appellant intended to cause particularly injury sustained by the deceased, though it landed on the head of the deceased, a vital part of the body resulting in his unfortunate death. We, therefore, are of the confirmed view that conviction of the appellant U/s. 302 IPC is not sustainable in the eye of law and it should be scaled down U/s. 304 Part-II IPC. 11. Accordingly we allow this appeal in part. Conviction and sentence of the appellant U/s. 302 IPC are set aside. The appellant is convicted U/s. 304 Part II IPC and sentenced to suffer rigorous imprisonment for five bears and to pay a fine of Rs. 10,000/- (ten thousand) in the event of default in payment of fine the appellant shall further undergo rigorous imprisonment for one year. If the amount of fine is recovered, it shall be paid to the legal heirs of the deceased. The conviction and sentence passed U/s. 324 IPC by the trial court are maintained.According appeal partly allowed. *******