Judgment KOKJE, J. ( 1 ) APPELLANT Jeev Dan was tried along with two of his brothers Pubudan and Hukam Dan on a charge under Section 302 and 302/34 of the Indian Penal Code. The appellant has been convicted on a charge under Section 302, IPC and has been sentenced to undergo life imprisonment with Rs. 100/- as fine and this is an appeal by the accused appellant against his conviction and sentences, through Jail. The other two co-accused were acquitted by the learned trial Judge. ( 2 ) THE prosecution case is that about a year prior to the date of the incident appellant-Jeev Dan had a quarrel with Gaje Dan son of deceased Hari Dan. On April 29, 1989 at about 5. 00 P. M. deceased Hari Dan was lying on a cot outside of his house. Jeev Dan came with an axe in his hand along with Hukam Dan and Pabu Dan. Jeev Dan gave an axe blow on the jaw of deceased Hari Dan and also gave successive blows. Inder Dan (P. W. 1), brother of deceased Hari Dan and Bhabhoot Mal (P. W. 8), ran away to the rescue of Hari Dan. One Derama (P. W. 2) also saw this assault from his house. Hari Dan was given medical aid but ultimately he died at 6. 00 P. M. on May 2, 1989. ( 3 ) THE prosecution examined Inder Dan (P. W. 1), Derama (P. W. 2) and Bhabhoot Mal (P. W. 8) as eye witnesses. All these witnesses have supported the prosecution and nothing of any consequence which may he helpful to the appellant was brought out in their statements. There is a dying declaration (Ex. P/9), recorded by Dr. Madha Ram (P. W. 6 ). In Ex. P/9, deceased Hari Dan has stated that Jeev Dan had assaulted him with an axe in the afternoon. It has been proved by the Doctor who recorded it in the language of the deceased. There is no reason to doubt the authenticity of the statement. There is also a confession made before the Judicial Magistrate by the accused - appellant i. e. Ex. P/12. Though the appellant had stated before the Judicial Magistrate that he was beaten by the Police Munshi but he also said that this was not for procuring the confessional statement. There is no reason to doubt the authenticity of the statement. There is also a confession made before the Judicial Magistrate by the accused - appellant i. e. Ex. P/12. Though the appellant had stated before the Judicial Magistrate that he was beaten by the Police Munshi but he also said that this was not for procuring the confessional statement. The learned trial Judge had relied on the confessional statement holding that the very fact that complaint against beating by the Police Munshi was made by the appellant before the Judicial Magistrate showed that there was no undue influence the appellant and the influence of Police on him had come to an end at the time, he made this statement. ( 4 ) FROM the aforesaid evidence, we find that the conviction is based on adequate and proper evidence. ( 5 ) THE main question argued on behalf of the appellant in this case is as to the offence which would be made out from the facts proved. ( 6 ) ACCORDING to the learned counsel for the appellant, the offence would fall under Section 304 Part-II of the Indian Penal Code. It is contended that though there were seven external injuries found on the body of the deceased, injury No. 7 which was contusion 31/2 x 11/2 c. m. on the right parietal region and right temporal region above the ear, was the injury which proved to be fatal according to the medical evidence. This injury was caused by the blunt side of the axe. It was also pointed out that Dr. Madha Ram (P. W. 6) had not shown this injury to be sufficient in the ordinary course of nature to cause death in his postmortem report. However, the Doctor gave such an opinion in the statement before the Court. It was also pointed out that in his cross-examination Dr. Madha Rum (P. W. 6) had stated that no other injury except injury No. 7, was sufficient in the ordinary course of nature to cause death singularly or collectively. The Doctor also agreed with the suggestion that if during the quarrel the injured gets dashed against a wall, injury like injury No. 7 could be received. It was further pointed out that the Doctor had also opined that injury No. 7 could have been healed by medical aid. The Doctor also agreed with the suggestion that if during the quarrel the injured gets dashed against a wall, injury like injury No. 7 could be received. It was further pointed out that the Doctor had also opined that injury No. 7 could have been healed by medical aid. In the last, it was pointed out that the deceased had died three days after receiving injury which also shows that the assault was not brutal or with an intention to kill. ( 7 ) HAVING regard to the circumstances of the case and the evidence on record and keeping in view that a totally defenceless person was attacked while he was lying on a cot with an axe but from the blunt side of the axe, it cannot be said that the intention was to cause death. The other injuries seem to have been received by the deceased while saving himself in the assault. That can be the only explanation of receiving injuries on the palm of the hands from the sharp edged side of the axe. The deceased had also not died instantaneously but lived for three days after receiving injuries. The injury which proved to be fatal was only a contusion which had caused internally a fracture. ( 8 ) LOOKING to all these circumstances it can safely be inferred that the intention of the appellant was not to cause death but it is certain that he had knowledge that his act was likely to cause death. The case therefore, falls under Section 304 Part-II of the Indian Penal Code. ( 9 ) THE appeal is therefore partly allowed. The conviction and sentence under Section 302, IPC are set aside. Instead, the appellant is held guilty of an offence punishable under Section 304, Part II of the Indian Penal Code. The appellant is in Jail since 1989. He has already undergone over six years of his sentence. He is sentenced to imprisonment already undergone by him. He be set at liberty forthwith, if, his detention is not required by any other lawful order. Appeal partly allowed.