JUDGMENT 1. - The appellant Sohan Nath stood trial of the charge of murder of his brother Naouranglai before the court of learned Addl. Sessions Judge, Rajgarh District Churu. The learned trial Judge by judgment dated 28.6.99 convicted the appellant Sohan Nath of offence u/s 304(1) IPC.and sentenced to 7 years R.l. and to pay a fine of Rs. 2000, in default of payment to further undergo 6 months R.l. The appellant Sohan Nath has preferred an appeal challenging his conviction and sentence. The State has filed an appeal challenging the acquittal of the appellant of offence u/s 302 IPC.In view of our order dated 6.7.2000 both the appeals are taken up for hearing. 2. The prosecution case as set out during the trial is as follows :Deceased Naouranglai and the appellant Sohan Nath were brothers. Deceased Naouranglai was engaged as labour on daily wages basis by the Department of Forest under the Forest Conservation Project Scheme. On 31st July, 1998 Sohan Naths children mere alleged to have taken certain plants without permission of the guard namely Naouranglai. This led to quarrel between both the brothers namely Naouranglai and Sohan Nath. The incident was witnessed by PW/3 Bhanwar Lal. According to Bhanwar Lal the incident took place at about 3 p.m. It is also stated that on his intervention Sohan Nath went away but he returned at about 7 p.m. He was armed with lathi. It is stated that he started abusing Naouranglai and struck a lathi blow on the head of Naouranglai, on account of which, he fell down. He was challenged by PW/2 Vikram. On seeing him, he ran away. The injured was taken to the hospital at Taranagar in a jeep where he succumbed to the injuries at about 3 A.M. PW/3 Bhanwar Lal lodged the F.I.R. of the said incident at police station Taranagar. The Police registered a case of offence u/s 302 IPC and proceeded with the investigation. After usual investigation police laid chargesheet against the appellant of offence u/s 302 IPC. 3. The appellant denied the charge of murder of Naouranglai levelled against him and claimed trial. 4. The prosecution in support of the case examined 11 witnesses and produced certain documents. In statement under Section 313 Cr.P.C. the appellant Sohan Nath denied the correctness of the prosecution evidence appearing against him. He also produced DW/1 Mani Ram. 3. The appellant denied the charge of murder of Naouranglai levelled against him and claimed trial. 4. The prosecution in support of the case examined 11 witnesses and produced certain documents. In statement under Section 313 Cr.P.C. the appellant Sohan Nath denied the correctness of the prosecution evidence appearing against him. He also produced DW/1 Mani Ram. Analysing the evidence, the trial court found Sohan Nath guilty of culpable homicide not amounting to murder and as such convicted him of offence u/s 304 (I) IPC.and sentenced as noticed above. 5. It is contended by the learned Public Prosecutor that the learned Judge has committed error in acquitting the accused Sohan Nath of offence u/s 302 IPC. instead of the fact that from the evidence it can be clearly spelled out that he inflicted lathi blow on the head of deceased Naouranglai with intention to commit murder. The learned Public Prosecutor has pointed out that the quarrel between the deceased and the appellant took place at about 3 P.M. and thereafter the appellant returned armed with lathi at about 7 RM. He abused the deceased and inflicted a lathi blow. On the other hand Mr. Dhillon, learned Amicus Curiae submits that there is no case against the accused Sohan Nath. The learned Judge has not appreciated evidence in right perspective. In the alternate it is submitted that the offence against the appellant Sohan Nath falls under Section 304 (II) instead of 304 (I) IPC. He further submits that in the facts of the case sentence awarded is excessive. 6. We have considered the rival contentions. We have perused the judgment of the trial court and scanned the prosecution evidence. PW/10 Dr. Om Prakash Verma has stated that he conducted the post-mortem of the body of deceased Naouranglai on 1.8.98 and noticed following injuries. 1. Lacerated wound at fronto parietal region Scalp Rt. 31/2"x bony depth x 1/2". 2. Bruise fronto parietal scalp skull 21/2" 21/2". He has proved post-mortem report Ex. P/19. He also stated that in his opinion deceased Naouranglai died due to depression of vital centre of brain. He also stated that the injuries were ante mortem. 7. PW/3 Bhanwar Lal has stated that adjacent to their village there is area of Forest Department. The said forest area was reserved under Conservation Project. In the said project, certain plantation was undertaken. He also stated that the injuries were ante mortem. 7. PW/3 Bhanwar Lal has stated that adjacent to their village there is area of Forest Department. The said forest area was reserved under Conservation Project. In the said project, certain plantation was undertaken. A committee was also constituted to look after that work. He was the Vice-President of the said Committee. His younger brother Naouranglai was engaged as daily wager labourer to look after the plantation. On 31st July, 1998 at about 2.45 or 3 P.M. when he went to the forest area, he found both the brothers fighting by hands and punch. He also stated that at that moment Vikram Singh was also present. He along with PW/2 Vikram Singh separated them. Thereafter Sohan Nath went towards the village. At about 7 P.M. Sohan Nath returned from the village side. He started abusing Naouranglai. He also struck a lathi blow on the head of Naouranglai. It is stated that they witnessed the incident from a distance of 15 pawanda. It is further stated that some more people from the area arrived on the spot. He gave information of the incident to the Police. There is lengthy cross-examination but, nothing has been elicited to discredit the testimony of this witness. The statement of PW/3 is corroborated by the F.I.R. Ex. P./1. 8. PW/2 Vikram Singh has almost stated on the lines of PW/3 Bhanwar Lal. The statement of both the witnesses is corroborated by the medical evidence. It is not necessary to state the statements of other witnesses. Thus, from the evidence it is established beyond doubt that the appellant Sohan Nath inflicted a lathi blow on the head of deceased Naouranglai. 9. The question which arises for consideration is as to what is the nature of offence? From the evidence, it clearly appears that the quarrel had taken place on a trivial issue. PW/10 Dr. Om Prakash Verma has clearly stated that the injury No. 2 was on account of fall on the ground. Therefore, a single injury has been attributed to the appellant Sohan Nath. There is nothing to show that the appellant in any way had taken undue advantage or acted in cruel manner. In view of this, the case clearly falls under sub-clause 4 of Section 300 IPC. Thus, the learned Judge has rightly convicted the appellant of offence u/s 304 (I) IPC.11. There is nothing to show that the appellant in any way had taken undue advantage or acted in cruel manner. In view of this, the case clearly falls under sub-clause 4 of Section 300 IPC. Thus, the learned Judge has rightly convicted the appellant of offence u/s 304 (I) IPC.11. For the manner in which the incident has taken place, in my view, the sentence awarded is excessive. The ends of justice would be met if the sentence is reduced from seven years to five years.12. in view of the aforesaid, we find no merit in both the appeals and the same are dismissed with the modification on the point of sentence as indicated above. The appellant is in jail. He will serve out the remaining, part of the sentence. *******