JUDGMENT 1. - This is an appeal filed on behalf of the accused-appellant against the judgment and order dated 11.4.2000 passed by the learned Additional Sessions Judge, Bali, District Pali in Sessions Case No. 44/1997, by which he convicted the accused-appellant for the offence under section 304 Part I and sentenced to 10 years rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine, to further undergo six months' Simple Imprisonment. 2. It arises in the following circumstances : PW 1 Bhuda Ram lodged a written report Ex.P/1 on 1.9.1997 at about 9.15 p.m. before PW 12 Chhogaram alleging inter alia that in the morning of 1.9.1997, his cousin Peeraram S/o Gigaji, age 20 years (hereinafter referred to as deceased) was standing in the river bed with his cattle and alongwith him, PW 2 Rataram and PW 4 Bhagga Ram were also standing near him. At about 10.00 a.m., accused-appellant, who has sown the field of Thanji Purohit near the canal, came there and started quarrelling with the deceased over the damage caused by the cattle of deceased to his crops and, thereafter, opened his one shoe from his leg and beat deceased with that shoe on his head. The deceased was saved by PW 4 Rataram and PW 4 Bhagga Ram and, thereafter, deceased went to Bera Firkowala and slept there. Thereafter, PW 1 Bhuda Ram, informant went there and asked the deceased and he narrated the above incident to him and further told that he is having a pain in his head. Upto 5.00 p.m. in the evening, there was no improvement in the condition of the deceased and then, he was put in the cart and at that time, PW 5 Danaram, PW 6 Bheem Singh, PW 2 Rataram and Prabhuram were also there and they took him to hospital, where Dr. Jitendra Kumar, PW 10 declared him dead. In the report, it is further stated by PW 1 Bhuda Ram that deceased died because of the injury caused on his head by accused-appellant with shoe. On that report, police registered a case and deceased was got examined medically by PW10 Dr. Jitendra Kumar and after usual investigation, a challan Was submitted against the accused-appellant. The learned Additional Sessions Judge then framed charge under section 302 IPC against the accused-appellant on 21.5.1998. The accused pleaded not guilty and claimed trial. On that report, police registered a case and deceased was got examined medically by PW10 Dr. Jitendra Kumar and after usual investigation, a challan Was submitted against the accused-appellant. The learned Additional Sessions Judge then framed charge under section 302 IPC against the accused-appellant on 21.5.1998. The accused pleaded not guilty and claimed trial. Note :That thereafter against the order dated 12.10.1997 passed by the learned Magistrate taking cognizance against the accused-appellant for the offence under section 302 IPC, S.B. Cr.Misc. Petition No. 746/98 was filed by the accused-appellant in this Court, which was decided by this Court vide order dated 6.11.1998 and this Court ordered that charge under section 304 Part I IPC may be framed against the accused-appellant instead of 302 IPC. Thus, amended charge under section 304 Part-I IPC was framed against the accused-appellant. On 5.2.1999 by the learned Addl. Sessions Judge.In support of its case, the prosecution examined as many as 12 witnesses and many documents were got exhibited. Thereafter, statement of accused under section 313 Cr.P.C. was recorded. Accused did not lead any defence evidence.After completion of trial, the learned Additional Sessions Judge vide his judgment and order dated 11.4.2000 convicted the accused-appellant for the offence under section 304 Part I IPC and sentenced as stated above.Against the said judgment and order dated 11.4.2000 passed by the learned Additional Sessions Judge, Bali, the accused-appellant has preferred this appeal. 3. In this appeal, it has been argued on behalf of the accused-appellant : 1. That since the deceased has no external visible injury on his skull, therefore, alleged injury could not have been caused by the blow of shoe and, thus, the conviction of the accused-appellant under section 304 Part-I IPC cannot be sustained. 2. That even otherwise accepting the prosecution case, offence cannot travel beyond Section 323 IPC. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order of the learned Addl. Sessions Judge. 5. I have heard the learned counsel for the accused-appellant as well as the learned Public Prosecutor and perused the record of the case. 6. Let us first take the medical evidence in the present case. 7. The post-mortem report of the deceased is Ex.P/9 which is dated 2.9.1997. There is no dispute of the point that the incident took place on 1.9.1997 at about 10.00 a.m. and in the same evening, deceased died. 6. Let us first take the medical evidence in the present case. 7. The post-mortem report of the deceased is Ex.P/9 which is dated 2.9.1997. There is no dispute of the point that the incident took place on 1.9.1997 at about 10.00 a.m. and in the same evening, deceased died. To prove post-mortem report Ex.P/9, Dr. Jitendra Kumar PW 10 has been produced by the prosecution. The injury which is mentioned in the post-mortem report Ex. P/9 is as follows and the same is found by the doctor when skull of deceased was opened for examination : Lacerated wound left cerebellar region occipital region 3 cm x 2 cm x 1/2 cm. 8. The cause of death of deceased as opined by doctors in post-mortem report Ex.P/9 is as follows : "In our opinion, the cause of death of Shri (late) Peera Ram S/o Shri Giggaji Caste Meena Age 20 yrs. H.M. R/o Pawa is due to (spontaneous) haemorrhagic shock of vital organ (Brain) as result of Head injury." 9. This post-mortem report was admitted by the learned counsel for the accused in the lower Court, subject to the cross-examination. In my opinion, in murder cases, this is not a good practice that injury and opinion of the doctor should come in the statement of doctor. 10. Dr. Jitendra Kumar, PW 10 has proved the post-mortem report Ex.P/9 through his statement and therefore, from his statement, it appears that deceased had one head injury and on the same day, he died because of that injury. Therefore, death of the deceased may be classified as homicidal. 11. So far as the fact that the accused-appellant gave a blow on the head of deceased by shoe is concerned, it has not been much disputed by the learned counsel for the accused-appellant during the course of arguments and thus, it is not being examined in detail. From the report Ex.P/1, it appears that there are two eye-witnesses and they are PW 2 Rataram and PW 4 Bhagga Ram and PW 4 Bhagga Ram has been declared hostile, but PW 2 Rataram has categorically stated in his statement that the accused-appellant gave a shoe blow on the head of the deceased and he has further stated that because of that injury he died. In cross-examination, he has admitted one fact that after incident, deceased fell down on the earth which was full of sand. In cross-examination, he has admitted one fact that after incident, deceased fell down on the earth which was full of sand. Therefore, the fact that the accused-appellant gave a shoe blow on the head of deceased has been proved by the prosecution. 12. Further to appreciate the argument of the learned counsel for the accused-appellant, the statement of Dr. Jitendra Kumar, PW 10 is referred again, where in cross-examination, he has admitted that deceased had no visible injury on his head and that if anybody falls on the river which is full of sand from the side of head, injury mentioned in the post-mortem report Ex.P/9 could have been caused. 13. The learned counsel for the accused-appellant has argued that since after beating by the accused-appellant-deceased fell on the earth which was full of sand, therefore, possibility that he might have received head injury because of falling cannot be ruled out and, therefore, no case under section 304 Part I IPC against the accused-appellant is made out and at the most offence under section 323 is made out against the accused-appellant. 14. To appreciate the above contention, it may be stated here that from perusing the post-mortem report Ex.P/9, a clear cut dimension of the injury on the head of the deceased has been mentioned and it may be internal injury. Thus, the injury, which is found on the head of the deceased as mentioned in the post-mortem report Ex.P/9 during the examination of dead body, in my opinion, cannot be caused because of falling on the earth which was full of sand. Therefore, the case whether falls under section 304 Part I or Part II or 323 IPC is made out or not would be decided on the basis of the post-mortem report Ex.P/9. 15. There is not dispute in this case that accused-appellant gave only one blow with shoe on the head of the deceased. 16. The words 'Culpable homicide' has been defined in Section 299 IPC. Section 299 is divided into three parts. The first part refers to the act by which the death is caused by being done with the intention of causing death. That part corresponds to the first part of Section 300. The second part of Section 299 speaks of the intention to cause such bodily injury as is likely to cause death. This has corresponding provisions in Cl. The first part refers to the act by which the death is caused by being done with the intention of causing death. That part corresponds to the first part of Section 300. The second part of Section 299 speaks of the intention to cause such bodily injury as is likely to cause death. This has corresponding provisions in Cl. 11 "Secondly" and "Thirdly" of Section 300 IPC. Section 304 Part I covers cases which by reason of the Exception under section 300 are taken out of the purview of Cls. (1), (2) & (3) of Section 300, but otherwise would fall within it and also clauses which fall within the second part of Section 299 corresponds to clause "Fourthly" of Section 300, Section 304, Part H IPC covers those cases which fall within the Third part of Section 299 but do not fall within the Fourth clause of Section 300. 17. In Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577 , the Hon'ble Supreme Court has made a distinction very well between a case falling under section 304 Part I or 304 Part H in the following manner "A question now arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause 4thly', then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part H of Section 304 and not Part I." 18. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part H of Section 304 and not Part I." 18. When the element of intention is missing, there is knowledge in such case, the head injury inflicted would be covered under Part II of Section 304 IPC. So, where the accused had knowledge, but no intention that such blow was likely to result in death, it would be held that the offence committed would be culpable homicide not amounting to murder punishable under Part II of Section 304 1PC. 19. Examining the facts of the present case, it appears that there was a sudden quarrel on trivial matter between the accused-appellant and the deceased and if in such quarrel, accused-appellant gave a shoe blow on the head of deceased, having knowledge that such blow might be fatal and thus, the act of accused-appellant would certainly fall under section 304 Part II IPC and not under section 304 Part I IPC as held by the learned Addl. Sessions Judge. Therefore, the findings of the learned Addl. Sessions Judge in this respect cannot be sustained. 20. The argument of the learned counsel for the accused-appellant that the case would fall under section 323 IPC is not at all appreciable, because of the simple reason that in the present case, the blow was given by the accused-appellant on the head of the deceased, which is a vital part and, thereafter, on the same day, the deceased died because of that injury. The cause of death of the deceased as opened by the doctors in the post-mortem report Ex.P/9 is due to spontaneous hemorrhagic shock of vital organ (Brain) as result of Head injury. This Head injury has clear nexus with the death of the deceased and, therefore, in such circumstances, this injury cannot be subscribed to be a simple injury punishable under section 323 1PC. Therefore, this argument of the learned counsel for the accused-appellant that the case would fall under section 323 IPC is rejected. The cases cited by the learned counsel for the accused-appellant in Idrish v. State of Rajasthan, RLW 1996 (2) Raj. 100 , Pooran Son of Bansi & Ors. Therefore, this argument of the learned counsel for the accused-appellant that the case would fall under section 323 IPC is rejected. The cases cited by the learned counsel for the accused-appellant in Idrish v. State of Rajasthan, RLW 1996 (2) Raj. 100 , Pooran Son of Bansi & Ors. v. State of Rajasthan, 1995 (2) RCD 317 (Raj.) and Dunga Ram v. State of Rajasthan, 1996 Cr.L.R. (Raj.) 593 have no application to the facts and circumstances of the present case. 21. For the reasons stated above, the accused-appellant is liable to be convicted under section 304 Part II 1PC instead of 304 Part I IPC as held by the learned Addl. Sessions Judge. Thus, accused-appellant has committed offence of culpable homicide not amounting to murder punishable under section 304 Part II IPC and for the offence under section 304 Part II 1PC, five years Rigorous Imprisonment and a fine of Rs. 2,000/- would be sufficient.In the result, the appeal filed by the accused-appellant-Khasa Ram @ Lutia is partly allowed. The conviction of the accused-appellant is altered from Section 304 Part Ito 304 Part H 1PC. The findings recorded by the learned Addl. Sessions Judge, Bali in his judgment dated 11.4.2000 are altered accordingly. After setting aside the order of sentence dated 11.4.2000 passed by the learned Addl. Sessions Judge, Bali, the accused-appellant is now convicted under section 304 Part II IPC and sentenced to five years' Rigorous Imprisonment and a fine of Rs. 2,000/-. In default of payment of fine, he shall further undergo three months R.I.Appeal partly allowed. *******