JUDGMENT Arun Misra, J. Appellant has filed the present appeal having been convicted for an offence u/s 304-II. Indian Penal Code and sentenced to undergo R.I. for five years. He was further convicted for an offence u/s 324. Indian Penal Code and sentenced to undergo R.I. for one year. Briefly stated prosecution case is that on October 17th. 1988, when the villagers had assembled to celebrate the festival of PEETHA. they have assembled for having food together, complainant Jairam Rathiya, his father Paraitram. Ramsingh. accused Chamarsingh and Ramsay were also present. Accused Chamarsingh stated that it would have been proper had the food being taken by everybody together and not on individual basis. Accused Chamarsingh told Ramsingh that he had just come and had not taken part in preparing the food. Ramsingh told that his grand-son had prepared BHAT (Rice). Chamarsingh also in term told that he had also cooked the food. Witness Ramsingh told the accused Chamarsingh that he had not seen him cooking the food by Chamarsingh. On that Chamarsingh said that if he had not cooked food, what else they were eating. This statement was objected to by Paraitram. On this altercation took place and the accused Chamarsingh is alleged to have caught hold of hair of Paraitram and fell him on the ground. Accused Chamarsingh was drunk at the relevant time and he jumped on the chest of Paraitram. When Paraitram's son Jairam tried to save him, he was bitten on the right cheek by accused Chamarsingh, as a result of which he received injury. At the same time, accused Ramsay also came to the spot and also started beating Paraitram with legs. Baliram Rathiya intervened and separated accused Chamarsingh and Ramsay. Paraitram was having pain in the chest, then Pariatram left to his house and ultimately died in the night at about 3:30 hours. Report of the incident Ex. P/1 was lodged on October 18th, 1988 at 9 a.m. at police station Pathalgaon. Post-mortem was conducted of the deceased and as per the post-mortem report, death was due to shock (cardiogenic and neurogenic in origin). Whether the death was homicidal or accidental, the doctor advised the case to be investigated out. On right cheek of complainant bite injury was found in the medical examination report Ex. P/7,prepared by Dr. A.K. Jha. Post-mortem was conducted of the deceased and as per the post-mortem report, death was due to shock (cardiogenic and neurogenic in origin). Whether the death was homicidal or accidental, the doctor advised the case to be investigated out. On right cheek of complainant bite injury was found in the medical examination report Ex. P/7,prepared by Dr. A.K. Jha. Accused abjured the guilt and contended that they were falsely implicated and had not inflicted any injury. Learned counsel for the appellant in the present appeal has submitted that it is a case where an offence u/s 304-11, Indian Penal Code is not made out. Intention was not to cause death nor there was knowledge to the accused that their act may result in death of deceased. His submission is that at the rnost an offence u/s 323, Indian Penal Code would be made out, even if entire prosecution case is accepted. Learned counsel for the State has supported the impugned judgment and has submitted that the method and manner in which beating was given though on the spur of movement, it is a case where conviction has rightly been recorded u/s 304-II and also u/s 324, Indian Penal Code and the conviction and sentence imposed upon the accused appellant call for no interference. It is not in dispute that the incident took place all of sudden when the villagers were having common food on the eve of celebration PEETHA festival. Accused were not armed with any weapon. But, it was found in the post-mortem examination that the lung of the deceased had ruptured, due to which death took place. Thus, it is apparent that the deceased was given beating by legs. Complainant Jairam Rathiya, son of deceased was examined as (PW- 1). He has stated that accused Chamarsingh had put both of legs on the chest of the deceased and thereafter the accused had one of the leg on earth and from other leg he inflicted four times injuries on the deceased Paraitram. This witness has been supported by Ramsingh (PW-2). He has also deposed that in similar fashion beating was given to deceased Paraitram. It may be true that Baliram (PW-4) had not supported the beating, but, he has mentioned that he had intervened in the incident-which had taken place and separated them. The witness has been declared hostile. This witness has been supported by Ramsingh (PW-2). He has also deposed that in similar fashion beating was given to deceased Paraitram. It may be true that Baliram (PW-4) had not supported the beating, but, he has mentioned that he had intervened in the incident-which had taken place and separated them. The witness has been declared hostile. It is also admitted by the son of the deceased that deceased Paraitram and Chamarsingh both were scuffling with each other. Baliram (PW-4) has submitted that the deceased had fallen in the post altercation. Dr. K, D. Dubey (P.W.6) had deposed that there was swelling in the epigastric region. There was depression in the left side of chest in the region of heart. It was depressed towards inside. Right inguinal hernia was protruding out of the right side. It was also pointed out that there was rupture of lung and right vertebra and abrasion in liver. In the opinion of Doctor the external injuries could not be caused by act of fall. Thus the injuries have been caused by fall is ruled out by the medical evidence and the medical evidence supports the occular version afforded by the complainant Jairam Rathiya (P.W.1) and witness Ramsingh (PW-2). Leg injuries were inflicted with force and several other injuries were inflicted. The nature of the injuries found depression in the heart area of chest which clearly goes to show that the accused knew that his act may cause death of the deceased though it may be true that the deceased and the accused appellant were scuffling with each other. But, that does not give rise to inflict injury which may result in death. In the facts and circumstances of the case, the conviction u/s 304-II, Indian Penal Code calls for no interference. However, the sentence of the accused appellant in the peculiar circumstances of the case deserves to be reduced u/s 304-II, Indian Penal Code though jail term is not mandatory and fine may suffice, but, considering the facts and circumstances, the sentence of three years' R.I. is imposed on the appellant and as by his act, death of Paraitram took place, a fine of Rs. 5000/- is imposed on the appellant. Out of fine amount, a sum of Rs. 4,500/- shall be paid to son of the deceased, complainant Jairam Rathiya as compensation. 5000/- is imposed on the appellant. Out of fine amount, a sum of Rs. 4,500/- shall be paid to son of the deceased, complainant Jairam Rathiya as compensation. There was bite injury caused to complainant and that has been established by medical evidence. Thus, the conviction u/s 324, Indian Penal Code and sentence imposed upon the accused appellant call for no interference. However, sentences are to run concurrently. In the result the appeal is allowed in part, but the conviction of the appellant u/s 304-II, Indian Penal Code is upheld and sentences is reduced to three year's R.I. and a fine of Rs. 5000/- is imposed, payable within a period of six months from the date of the judgment, failing which the appellant shall have to undergo one year's R.I. Out of fine amount, an amount of Rs. 4500/- shall be paid to the complainant Jairam Rathiya as compensation. The conviction of the appellant u/s 324, Indian Penal Code for causing injury to complainant and sentence is upheld. Sentences to run concurrently. Final Result : Allowed