JUDGMENT 1. - The above mentioned accused-appellant has preferred this appeal against the judgment and order dated 12.7.1996 passed by the learned Judge, Special Court, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, cases (Additional Sessions Judge), Udaipur in Session Case No. 12/94, by which the learned Additional Sessions Judge convicted accused-appellant under section 302 IPC and sentenced him to imprisonment for life and a fine of Rs. 1,000/-, in default of payment of fine, to further undergo four months' S.I. 2. The facts giving rise to this appeal, in short, are as follows : On 29.11.1993 at about 1.30 p.m., PW 2 Bheema lodged an oral report marked Ex.P/ 6 before PW 15 Dulhe Singh, SHO, Police Station Salum-bar stating inter alia that there is a well known as Mana Rehat and on this well, three persons have shares and for the last year, dispute is going on between the complainant party and Sawa, accused-appellant for taking the water from the well. It is further stated on the date of occurrence, since the day of taking water was of accused-appellant, therefore, he was taking water from the well, in other words, the turn of taking water was of accused-appellant and on the same day at about 7.00 a.m., his brother Lakma (hereinafter referred to deceased) went to the field after taking the pair of oxes and he also told to PW 2 Bheema that he should also come to the field. It is further stated in the report that after 15 minutes, he also went there, where he saw deceased standing there near the dhora and at that time, accused-appellant was having a fawra in his hand and accused-appellant gave a blow with that fawra on the person of deceased with intention to murder him, as a result of which, deceased fell on the earth and he cried, but nobody came there. He went to the place where deceased fell and seeing him, accused-appellant ran away from the scene and blood was coming out from the forehead of the deceased, but he found that deceased was dead and, thereafter, he came to his village and told the incident to Uda and PW 8 Bhera and then, they all reached on the spot and it is also written in the report that accused-appellant has murdered deceased because of the dispute of taking water from the dhora. On this report, PW 15 Dulhe Singh registered the case and chalked out police FIR Ex.P/20 and started investigation. During investigation, post-mortem of the dead body of the deceased was got conducted by PW 12 Dr. M.L. Purbiya and the post-mortem report is Ex.P/13 and the accused-appellant was arrested on 7.12.1993 through Ex.P/16. The accused-appellant gave an information Ex.P/17 for the recovery of fawra and the same was recovered on 7.12.1993 at the instance of the accused-appellant and the fard recovery is Ex.P/5 and the motbirs of that recovery is PW 1 Tulsiram and PW10 Heeralal. After usual investigation, the police submitted challan against the accused-appellant in the Court of Magistrate, from where the case was committed to the Court of Session. The learned Additional Sessions Judge on 29.7.1994 framed charge under section 302 IPC against the accused-appellant. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 16 witnesses and some documents were got exhibited. Thereafter, statement of the accused-appellant under section 313 Cr.P.C. was recorded. In defence, three witnesses have been produced by the accused-appellants and some documents were also got exhibited. After recording evidence and conclusion of trial, the learned Additional Sessions Judge through judgment and order dated 12.7.1996 convicted the accused-appellant under section 302 IPC and sentenced him in the manner stated above holding inter alia that accused-appellant has committed offence punishable of section 302 IPC and in coming to this conclusion, the learned Additional Sessions Judge has placed reliance on the statement of PW 2 Bheema also. Aggrieved from the said judgment and order dated 12.7.1996 passed by the learned Additional Sessions Judge, Udaipur, the present appeal has been filed by the accused-appellant. 3. Aggrieved from the said judgment and order dated 12.7.1996 passed by the learned Additional Sessions Judge, Udaipur, the present appeal has been filed by the accused-appellant. 3. In this appeal, the learned counsel for the accused-appellant has restricted his argument only to one point that the present case is not a case of culpable homicide amounting to murder punishable under section 302 IPC, but it is a case of culpable homicide not amounting to murder punishable under section 304 Part II IPC, inasmuch as, there was no intention on the part of the accused to murder deceased as the fawra by which the alleged injuries have been caused by accused-appellant cannot be regarded as a deadly weapon, as this weapon is common with all farmers in the village and the dispute arose for taking water from the dhora and on the date of incident, the turn of taking water from the dhora was of accused-appellant, though as per the report Ex.P/6, deceased also went there along with his pair of oxes and this possibility of disturbing dhora of accused-appellant by deceased could not have been ruled out and thus, no case under section 302 IPC should be held to be proved and the findings of the learned Additional Sessions Judge in this respect are liable to be altered. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 12.7.1996 passed by the learned Additional Sessions Judge, Udaipur. 5. We have heard the learned counsel for the accused-appellant as well as the learned Public Prosecutor and gone through the record of the case. 6. Before proceeding further, we would like to first see the medical evidence of this case which is found in the statement of PW 12 Dr. M.L. Purbiya, who conducted the post-mortem of the dead body of the deceased. 7. PW 12 Dr. M.L. Purbiya has stated in his statement that on 29.11.1993 he was Medical Officer and conducted the post-mortem of the dead body of the deceased and he found the following injuries : "1. Lacerated wound 10 cm x 8 cm x brain cavity deep and dipressed fracture of occipital bone on posterior aspect of Head. 2. Lacerated wound 6 cm x 5 cm x Bone deep on Rt. mastoid region behind Rt. Lacerated wound 10 cm x 8 cm x brain cavity deep and dipressed fracture of occipital bone on posterior aspect of Head. 2. Lacerated wound 6 cm x 5 cm x Bone deep on Rt. mastoid region behind Rt. Ear with fracture of Bone." He has further stated that the cause of death of the deceased was Coma due to Head injury. He has proved the post-mortem report Ex.P./13. 8. From the statement of PW 12 Dr. M.L. Purbiya, it is proved:- (1) That death of the deceased was homicidal. (2) That deceased received two injuries. 9. PW 2 Bheema is the only eye-witness in the present case, who is also the brother of the deceased. He has proved his report Ex.P /6 and he has also admitted the following facts in his statement recorded in the Court : 1. That complainant party and accused-appellant hail from the same family and they used to assemble together in all the ceremonial functions of the family. 2. That it is also correct to say that when a person goes in the field to discharge water from the dhora, fawra is generally kept by him. 3. That when he reached the field, except accused-appellant and deceased, none was there. 10. From the report Ex.P/6, it is also clear that on the date of occurrence, the turn of taking water from the dhora was of accused-appellant and it is also in evidence that deceased also went there with his pair of oxes and, thereafter, dispute arose between the accused-appellant and deceased, therefore, accused-appellant gave two blows with fawra on the person of the deceased, as a result of which, he died on the spot. Upon these facts, the learned Additional Sessions Judge has come to the conclusion that case of culpable homicide amounting to murder punishable under section 302 IPC is made out. 11. The question that arises for consideration, looking and considering the above facts, is whether in the present case, the finding of the learned Additional Sessions Judge that a case of culpable homicide amounting to murder punishable under section 302 IPC is made out or not or whether a case of culpable homicide not amounting to murder punishable under section 304 Part II IPC, as alleged by the learned counsel for the accused-appellant is made out or not. 12. 12. From the evidence on record, it appears that on the date of alleged incident, accused-appellant was having a right to discharge water from the dhora to his field, as the turn of taking water was of him and not of deceased and so far as the weapon used by him is concerned, it is a fawra which is a common among all the villagers and thus, it cannot be said that accused-appellant was armed with any deadly weapon. The fact that deceased went there with the pair of his oxes further goes to show that deceased might have gone there with an intention to take water from dhora, though the turn was not of him, but was of accused-appellant and dispute might have arisen certainly between accused-appellant and deceased for taking water from dhora and thus, in such circumstances, if accused-appellant has caused injuries by fawra on the spot to deceased, it cannot be said that there was any intention on the part of the accused-appellant to murder deceased. The attack of the accused-appellant cannot be termed as pre-meditated, but the alleged incident took place at the spur of moment and there was no intention on the part of the accused-appellant to murder deceased. In other words, when element of intention is missing, knowledge on the part of accused-appellant can be attributed and this act of the accused-appellant would be covered by Clause-IV of Section 300 IPC, punishable under section 304 Part II IPC. 13. The following observations made by the Hon'ble Supreme Court in State of U.P. v. Indrajeeta Sukhatha, JT 2000 (9) SC 426 would further strengthen the view taken by us: "Indian Penal Code, 1860, Sections 302, 304, Pt. II-Murder -Accused, a carpenter, entering into the but of victim at 4.00 a.m. - Armed with "rukhani" an implement of carpentry - Only two injuries inflicted, out of which only one sufficient to cause death in normal course - Parents of deceased in hut - If murder with intention to kill. Held that there is no intention to kill and hence conviction from Section 302 to 304 Pt. II was rightly converted." 14. Held that there is no intention to kill and hence conviction from Section 302 to 304 Pt. II was rightly converted." 14. We, therefore, hold that the accused-appellant by causing injuries to deceased in the present case, has not committed the offence of culpable homicide amounting to murder punishable under section 302 IPC, but instead has committed the offence of culpable homicide not amounting to murder punishable under section 304 Part-II IPC and thus, the judgment of the learned Additional Sessions Judge is liable to be altered accordingly. 15. So far as the point of sentence 'for the offence under section 304 Part II IPC is concerned, the accused-appellant is in jail since 7.12.1993, meaning thereby he has been in jail for more than six years and we think that ends of justice would be met, if the accused-appellant is sentenced for the offence under section 304 Part-II to the period already undergone by him. 16. Thus, for the reasons stated above, this appeal is partly allowed. The conviction of the accused-appellant is altered from Section 302 IPC to 304 Part-II IPC and he is accordingly convicted under section 304 Part-II IPC and for the said offence, he is sentenced to the period already undergone by him. The judgment and order dated 12.7.1996 passed by the learned Judge, Special Court, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act cases (Additional Sessions Judge) Udaipur stand modified according)Since accused-appellant - Sawa is in jail, he be released forthwith, if not required in any other case.Appeal partly allowed. *******