Judgment Mohd. Yamin, J.-According to the Old Testament, first son of Adam and Eve Cain killed his brother Abel in a jealous rage and thus the first murder was committed. Ever since then so many brothers have murdered real brothers. Here is yet another case of fratricide. 2. P.W. 13 Deepa Ram came to police station, Bayatu at 3-45 p.m. on 3-1-94 and submitted Ex. P/13 report. The report stated that at 11-00 a.m. Smt. Magni widow of deceased Magaram came to him and informed that at about 8 a.m. Magaram, her mother-in-law and husband’s brother (accused-appellant) were present in the house. The accused-appellant and her husband had an altercation. Accused-appellant inflicted a kulhari blow on the head of her husband. Magaram started bleeding profusely and became unconscious. Deepa Ram immediately went to the place of occurrence and found that accused appellant was walking armed with a kulhari. Roop Singh and Bhura Ram also came there and found that Magaram was lying dead in the courtyard 3. A case under Section 302, IPC was registered and investigation started. During Investigation site plan Ex. P/i, memo of dead body Ex. P/2 and panchnama Ex. P/3 were prepared. Post-mortem of dead body was conducted by PW-i0 Dr. Chandra Prakash Makwana and report Ex. P/9 was prepared. Accused-appellant was arrested and Kulhari was recovered on the basis of his disclosure statement. After investigation was complete, accused-appellant was charge sheeted before the learned Munsif and Judicial Magistrate, Barmer who committed the case to the learned Additional Sessions Judge. 4. Learned Additional Sessions Judge framed charge under Section 302, IPC against the accused-appellant on 15-2-94 and read over to him. He denied his indictment and claimed trial. Thereupon the prosecution examined as many as 16 witnesses. Then the accused-appellant was examined under Section 313, Cr.P.C. The defence of the accused-appellant was that he and the deceased were cutting aranda and that Kulhari fell from his hand and injured the deceased accidently and that he had no intention to kill the deceased. He did not produce any witness in defence. Learned Additional Sessions Judge after hearing both the parties convicted the accused-appellant under Section 302, IPC and sentenced to life imprisonment and a fine of Rs. 100/-. In default he was ordered to undergo one month’s simple imprisonment. Hence this appeal. 5. He did not produce any witness in defence. Learned Additional Sessions Judge after hearing both the parties convicted the accused-appellant under Section 302, IPC and sentenced to life imprisonment and a fine of Rs. 100/-. In default he was ordered to undergo one month’s simple imprisonment. Hence this appeal. 5. We have heard the learned counsel for the accused-appellant as well as learned Public Prosecutor at length and have also gone through the entire record. 6. Learned counsel for the accused-appellant submitted that he is not challenging the finding of causing kuihari blow by the accused-appellant to the deceased. He has submitted that the offence does not travel beyond Section 304 part-Il IPC. On the other hand, learned Public Prosecutor has submitted that the offence committed by the accused-appellant is in no way short than Section 302, IPC. Thus we have a very short question to decide if the offence travels beyond Section 304 Part-Il, IPC or not? 7. We have first to see as to what is the evidence against the accused-appellant regarding his involvement with the crime. There are two types of evidence against the accused-appellant. The first one is the ocular and the second circumstantial. 8. It is PW-5 Smt. Magni wife of deceased Magaram who is the eye witness of the occurrence. She has stated that the accused-appellant had come a day before when deceased was away. The deceased returned in the evening and the accused-appellant demanded some money from him. The deceased replied that he was not having the money and that he would meet his expenses after selling fodder and that the accused-appellant should continue his studies, The accused appellant stayed over night in the dhani and next day morning the deceased went to cut the “arnas” in the field. When he returned, the accused-appellant again demanded money but the deceased asked him either he should go back to the dhani of his father or to cut the “arnas”. Then accused-appellant persisted his demand and said that he would not go unless the money was given to him. Then Magaram started drinking water from a pitcher placed in the courtyard. At that time accused-appellant picked up a Kulhari and inflicted blow on his head. She has been cross examined at length. She has maintained that the accused appellant inflicted Kuihari blow which vertically injured the head. Then Magaram started drinking water from a pitcher placed in the courtyard. At that time accused-appellant picked up a Kulhari and inflicted blow on his head. She has been cross examined at length. She has maintained that the accused appellant inflicted Kuihari blow which vertically injured the head. Magaram fell down in the courtyard and bleeded profusely. She has further stated that the deceased died within a period of two hours. According to her, the mother of deceased and the accused-appellant PW-11 Smt. Chatru was also present but Chatru PW-11 has not stated that she did not see the accused inflicting injury on the head of deceased. She was declared hostile and had maintained that at the time of occurrence she was present in the kitchen. We have no reason to disbelieve Smt. Magni PW-5 who is of the sterling worth. So we concur with the learned Sessions Judge that it was the accused and accused alone who inflicted the injury on the head of deceased Magaram. 9. PW-4 Bhura Ram and PW-2 Roop Singh have slated that the accused-appellant made clean breast confession before them that he had inflicted injury on the head of Magaram. From their evidence we find that they had come immediately after the occurrence had taken place and the accused-appellant had made extra judicial confession before them. So it is established beyond doubt that it was the accused and accused alone who caused the fatal blow on the head of de-ceased-Magaram with Kulhari. 10. So far as nature of injury is concerned, we find from the statement of Dr. Chandra Prakash Makwana, PW-10, that deceased suffered an incised wound 5.5x 1 cm. on the left side of scalp at parietal region placed obliquely. Parietal bone was seen fractured and brain matter was coming out of cranium. In his opinion the cause of death of Magaram was haemorrhage due to excessive loss of blood. According to him the deceased died due to shock and haemorrhage caused by this injury which was sufficient to cause death of the deceased. 11. Learned counsel for the accused-appellant submitted that the accused-appellant had no intention to murder the deceased. He submitted that the accused-appellant and the deceased are real brothers and they had no previous enmity. According to him the deceased died due to shock and haemorrhage caused by this injury which was sufficient to cause death of the deceased. 11. Learned counsel for the accused-appellant submitted that the accused-appellant had no intention to murder the deceased. He submitted that the accused-appellant and the deceased are real brothers and they had no previous enmity. He submitted that had the accused-appellant planned or premeditated murder, he would have done away with Magaram during the night when he stayed in the dhani. But the accused-appellant wanted money from the deceased for his studies and both of them had altercation and when money was not given to him, he picked up a Kuihari from the place of occurrence itself and inflicted the blow on the head of deceased. So according to the learned counsel for the accused-appellant the offence does not travel beyond Section 304, Part-Il, IPC. 12. Learned Public Prosecutor has submitted that the action of the accused-appellant is an indication of his intention and that he injured Magaram by a Kulhari and Magaram died within two hours of infliction of injury and thus the accused-appellant has committed an offence under Section 302, IPC. 13. We find from the evidence that it was not a premeditated murder. The accused-appellant had not come armed. He stayed overnight and in the morning there was some altercation between two brothers when accused-appellant asked for the money. There are circumstances that the deceased was to pay Rs. 500/-to the accused-appellant as told by Jagaram PW-7, the Investigating Officer. This amount related to the labour which the accused-appellant had performed. It appears that the accused-appellant was studying and it was Magaram who used to give him money but Smt. Magani used to say that there was no sense in spending money over the education of accused-appellant. There is evidence to the effect that there was no previous enmity or quarrel between the two brothers and it was at the spur of moment that the accused-appellant picked up kulhari and inflicted blow on the head of deceased. Smt. Magani has admitted even in the examination-in-chief that since her husband Magaram did not give money to the accused-appellant, the accused-appellant inflicted blow on the head of deceased. 14. Smt. Magani has admitted even in the examination-in-chief that since her husband Magaram did not give money to the accused-appellant, the accused-appellant inflicted blow on the head of deceased. 14. In these circumstances learned counsel for the accused-appellant citing Jagtar Singh vs. State of Punjab, AIR 1983 SC 463 : 1983 CriLJ 852 submitted that the case does not travel beyond Section 304, Part-Il, IPC. W have carefully read the decision given in Jagtar Singh’s case (supra) and we find that it is distinguishable on facts. In Jagtar Singh’s case (supra) the deceased caused a blow on the chest which pearced deep inside the chest cavity resulting in the injury to the heart and this injury was sufficient in the ordinary course of nature to cause death. It was caused in a sudden quarrel when the accused appellant and the deceased met around 1.45 p.m. At that time deceased Naririder Singh accompanied by Romesh Kumar was proceeding towards a cinema. Deceased Narinder Singh was injured by the projecting parnala of the house of the appellant when they were passing infront of the house of accused-appellant Jagtar Singh. Deceased Narinder Singh protested and asked accused-appellant to raise the height of the panala. There was exchange of abuses in this background. On instigation by Joginder Singh accused-appellant gave one blow with knife which landed on the chest of deceased Narinder Singh. After some time Narinder Singh succumbed to his injury. In those circumstances the conviction of the accused was altered to Section 304, Part-Il, IPC. 15. In the case in hand before us there was altercation between two brothers i.e. deceased and the accused-appellant and the accused-appellant knowing if fully well that Kulhari was such a weapon by which such a bodily injury could be caused which was likely to cause death, inflicted fatal blow on the head of deceased. Accused-appellant while using the Kulhari inflicted injury or the head of deceased by sharp end and he very well knew that such an injury was likely to cause death of Magaram; The head of deceased was a vital part of his body. Therefore, the argument of the learned counsel that the offence is covered under Section 304, Part-II, IPC is not maintainable. Therefore, the argument of the learned counsel that the offence is covered under Section 304, Part-II, IPC is not maintainable. In our view when the accused-appellant did not repeat the blow and only one injury on the head caused by the accused-appellant, in the facts and circumstances of this case, was sufficient to cause the death of deceased Magaram, it is a case in which the offence comes within the definition of culpable homicide not amounting to murder and is punishable under Section 304, Part-I, IPC. In a latest Supreme court case reported in 1998 CriLR (SC) 183 : 1998 AIR SCW 1919, State of Rajasthan vs. Satyanarayan, when there was no enmity with the deceased and there was no intention to cause death and the accused inflicted injury when aiming the vital part of deceased, the offence was held to be one under Section 304, Part-I, IPC and not under Section 302, IPC. 16. Herein the instant case the accused-appellant gave a blow by sharp edged end of the kulhari on the head of deceased and it is found from the evidence of PW-5 Smt. Magani that Kulhari had stuck in the head and could be taken out by the accused appellant himself by force. We are of the definite view that the accused-appellant of course committed the offence under Section 304, Part-I, IPC. 17. We, therefore, partly allow the appeal and alter the conviction of the accused-appellant from Section 302, IPC to Section 304, Part-I, IPC and sentence him to 7 years’ rigorous imprisonment. Sentence of fine is maintained.