JUDGEMENT - D.G. DESHPANDE, J.:---Heard Ms. Pawar for the appellant and Mr. Borulkar, the learned A.P.P. for the State. This is an appeal against the conviction of the appellant under section 304 of the I.P.C. by which the appellant was sentenced to suffer R.I. for three years and pay fine of Rs. 1,000/-, in default R.I. for six months. This was a judgment of Additional Sessions Judge of Sawantwadi dated 30-11-89. 2.The learned Counsel for the appellant restricted her arguments on the point of sentence only and prayed that taking into consideration the circumstances of the case the sentence awarded to the appellant should be reduced to the minimum possible. 3.According to the prosecution case, the deceased Pundlik borrowed money from the accused for the expenses of marriage of Indu, who was the daughter of Pundlik's brother. Pundlik could not repay loan and the accused was insisting that the Pundlik should sell him certain land in satisfaction of loan amount. But, the Pundlik did not obliged the accused by doing so, nor repaid the loan amount. 4.According to the prosecution, the incident took place on 15-6-1988 at about 7-30 p.m., near the gate and fencing of the house of P.W. 2 Rama Dagare. Deceased Pundlik was near the said gate where the accused arrived there. Oral altercation took place between Pundlik and the accused due to which the accused got angry and took out one bambu from the fencing and delivered a blow on the head of the Pundlik as a result of which Pundlik sustained injury on his front head and nose and both these injuries resulted in excessive bleeding. Pundlik fell on the ground and died on the spot. 5.Since the learned Counsel for the appellant Ms. Pawar laid stress on the proper applicability of sections of the I.P.C. against the accused and the consequent reduction of sentence, it has to be seen whether this is a fit case for showing further leniency to the accused and reducing the sentence from three years. 6.Ms. Pawar urged that even from the admitted facts on record there was no pre-planning, premeditation by the accused, that the accused was not armed when he went near the house of Rama Dagare P.W. 2, that the accused had no knowledge that deceased Pundlik was going to come near the house of Mr. Rama Dagare. 6.Ms. Pawar urged that even from the admitted facts on record there was no pre-planning, premeditation by the accused, that the accused was not armed when he went near the house of Rama Dagare P.W. 2, that the accused had no knowledge that deceased Pundlik was going to come near the house of Mr. Rama Dagare. She also contended that the accused was going by the road in front of the house of Mr. Rama Dagare casually and when he saw Pundlik, sudden exchange of words or altercation occurred between the accused and the deceased Pundlik in which without any pre-thinking or plan, the accused took out bamboo and dealt a blow on the forehead of deceased Pundlik, resulting in an injury on the nose and forehead of the Pundlik. 7.From these undisputed circumstances, Ms. Pawar contended that neither the intention nor the knowledge can be gathered, nor can they be imputed to the accused. According to her the learned Sessions Judge has rightly acquitted the accused of the offence under section 302 I.P.C. but even then according to her the case did not come under section 304 I.P.C. but under section 304 Part II of the I.P.C., because dealing a blow with a bamboo which was not solid but hollow was not only unintentional but was also without sufficient knowledge on the part of the accused that the blow will result into or was likely to cause death. She therefore urged that in the absence of knowledge and intention, the conviction of the accused was liable to be converted, if at all the case of the prosecution was to be accepted as it is, from the conviction under section 304 of the I.P.C. to a conviction under section 304 Part 2 I.P.C. and the accused was entitle for further reduction in the sentence. She also relied upon the judgment of Orissa High Court, reported in (Loknath Behera v. State)1, 1984(1) Crimes 722 wherein the accused who had inflicted only one blow of lathi on the chest of the deceased in the sudden quarrel and the spur of moment resulting into fracture of rib which consequently ruptured the spleen was held to be guilty under section 325 I.P.C. i.e. grievous hurt was sentenced to imprisonment of four months which the accused had already undergone. Relying upon this judgment, Ms. Relying upon this judgment, Ms. Pawar urged that the sentence of the accused was liable to be reduced in this case. 8.The learned A.P.P. on the other hand strongly opposed this argument firstly for acquittal of the accused for the inability of the prosecution to prove the charge and secondly for taking the lenient view in the matter relying upon the Orissa High Court judgment and reducing the sentence. The learned A.P.P. relied upon three judgments reported in, A.I.R. 1979 S.C. 1525 (Mirza Hidayatullah Baig v. The State of Maharashtra)2, A.I.R. 1956 S.C. 116 (Willie (William) Slaney v. The State of M.P.)3, A.I.R. 1982 S.C. 1183 (Jayappa Dattu Rajage and others v. The State of Maharashtra)4, which were the judgments of the Supreme Court wherein for giving a single blow with a weapon like lathi or stick the conviction of the accused was converted from section 302 I.P.C. to section 304 Part 2 of the I.P.C. but the sentences in all the three cases were minimum five years to maximum seven years. The learned A.P.P. on the basis of the aforesaid rulings refuted all the submissions of the learned Counsel for the appellant and contended that the learned Sessions Judge in the instant case, has already granted lessor sentence or minimum sentence of three years which was not in proportion to the nature of the crime and which was not consistent with the sentences awarded by the Supreme Court in the aforesaid cases and he therefore opposed any further reduction in the sentence of the accused. 9.I have given my anxious considerations to the submissions of the learned Counsel for the accused appellant and the learned A.P.P. Admittedly from the facts and circumstances it is clear that the accused had no intention to cause death of the victim Pundlik. It is proved beyond doubt in this case that the incident occurred at the spur of the moment without any premeditation and planning. It is clear that when the accused and the victim met on the road in front of the house of P.W. 2 Rama, they had not conceived or thought that there would be quarrel between them resulting in an assault and the instant death of Pundlik. It is clear that when the accused and the victim met on the road in front of the house of P.W. 2 Rama, they had not conceived or thought that there would be quarrel between them resulting in an assault and the instant death of Pundlik. However, an oral altercation took place between them resulting in accused loosing his temper and taking a bamboo in his hand and dealing a blow on the head of the deceased Pundlik resulting simultaneously in two bleeding injuries viz., one of the forehead and other on the bridge of the nose. 10.In these circumstances, the learned Additional Sessions Judge rightly acquitted the accused under section 302 I.P.C. It appears that instead of convicting the accused under section 304 Part 2, the learned Sessions Judge convicted him under section 304, but even then sentencing him to three years which is much less than the prescribed sentence of imprisonment for life or imprisonment which may extend to 10 years. The case laws or the precedents relied upon by the learned A.P.P. are apparently against the accused because in the first two reported judgments of the Supreme Court referred to above, the weapon used was a stick and there was only one single fatal blow on the vital part of the body. However the distinguishing factor between those cases relied upon by the learned A.P.P. and the present case is that the accused had used bamboo which admittedly was not solid but was hollow and as per the panchnama wherein the bamboo is described was having 5 ft. and 10 inches length and circumference or a girth was 5 inches. A Mathematical calculation according to the principle rules of the Geometry, that the bamboo was less than two inches diameter. The question is whether the knowledge can be attributed to the accused in the instant case that the use of the hollow bamboo will result in death. No doubt the victim Pundlik appears to have died on the spot, because not a single witness who was present there stated that he was found alive when he fall down. However the death of the victim in any case, even if it is instantaneous has not been considered as a criteria for imputing an intention and knowledge to the accused. However the death of the victim in any case, even if it is instantaneous has not been considered as a criteria for imputing an intention and knowledge to the accused. At any rate, the nature of the instrument or the weapon of attack is also a factor that is required to be considered while scrutinising the case of the prosecution for attributing the knowledge and consequences of attack to the accused. 11.Considering therefore from this angle viz, the use of hollow bamboo and the infliction of only one single blow of the head of the victim, in my opinion, brings the case within the corners of section 304 Part 2 I.P.C. from section 304 I.P.C. as was found by the learned Additional Sessions Judge. It is true that the punishment prescribed in section 304 I.P.C. and 304 Part 2 I.P.C. is equally same, viz, 10 years or with fine or with both, however, under section 304 the punishment can extend up to life imprisonment or imprisonment which may extend to 10 years and with fine, whereas under section 304 Part 2 the imprisonment may extend to 10 years or with fine or with both. This distinction made by the legislature in the first part and the second part, and the second part giving discretion to the Court to award fine only in a suitable case or to award both the sentences clearly indicated that section 304 Part 2 speaks of an offence which looses its gravity for want of an intention as the necessary ingredient of knowledge or likelihood of an act on the part of the accused resulting in death, but the question is that the instrument or the weapon used in the particular offence will be an indication regarding the knowledge of the consequences of the act. 12.Since in the instant case from the admitted and proved facts, the accused used only a hollow bamboo, this case has to be distinguished from the aforesaid rulings of the Supreme Court relied upon by the learned A.P.P. As a result, the prayer of the learned Counsel for the appellant accused for reduction of sentence is required to be considered. 13.It is true as argued by the learned A.P.P. that the sentence of three years awarded by the learned Additional Sessions Judge in this case cannot be considered as a disproportionate sentence or a heavy sentence. 13.It is true as argued by the learned A.P.P. that the sentence of three years awarded by the learned Additional Sessions Judge in this case cannot be considered as a disproportionate sentence or a heavy sentence. In the aforesaid three rulings of the Supreme Court, the Supreme Court has awarded sentences ranging from five years to seven years for use of a stick and for inflicting only a single blow. It appears that the use of a bamoo, a hollow instrument was considered by the learned Additional Sessions Judge as a circumstance in awarding three years sentence with fine. 14.However, the learned Counsel for the appellant accused showed willingness for enhancement of fine and the payment of compensation therefrom to the dependants of the deceased Pundlik. Considering this sufficient and other circumstances, the appeal is required to be partly allowed and hence, I pass the following order. ORDER "The appeal is partly allowed. The conviction of the accused under section 304 is converted into the coviction under section 304 Part 2 of the I.P.C. and is sentenced to suffer R.I. for two years and fine of Rs. 4,000/-, out of which Rs. 3,500/- will be paid to the dependents of the deceased Pundlik as compensation, in default the accused will suffer R.I. for six months. The accused to pay the amount of fine within two months. Rest of the order of the learned Sessions Judge remains undisturbed." Appeal partly allowed.