Judgment ( 1. ) APPELLANT has been convicted for offence under Section 304 Part-I I. P. C. and sentenced to R. I. for six years, fine of Rs. 2000/-, in default of payment of fine, to undergo further six months R. I. ( 2. ) INITIALLY accused appellant was charged for offence under Section 307/34 I. P. C. , but, later on it was converted to one under Section 302/34 I. P. C. ( 3. ) THE allegation against the appellant as well as two acquitted accused persons was that the appellant inflicted injury on deceased Rampyari Bai by an axe on her head, due to which she suffered fracture, laceration of brain and she ultimately died. The incident took place on 25-11-1985. She died on 28-1-1986 while she was still under treatment for the injury suffered. As per the prosecution case, deceased Rampyari Bai was cleaning utensils in front of her house on 25-11-1985 at about 12:30 p. m. There was previous litigation with the accused persons. When acquitted accused Ramesh came back from the Court, he spitted when she was cleaning the utensils and hurled abuses on Rampyari Bai. Rampyari Bai was going to lodge the report of the incident, then all the three accused persons came out of the house and Rampyari Bai was given an axe blow on her head by accused Suresh and accused Ramesh and Moolchand bat her by fists and legs. Incident was witnessed by neighbourers. Report was lodged by Ramkumar (P. W. 2), a student aged 16 years, at 12:45 p. m. in police station Nowgaon. Head Constable Nathuram Singh (P. W. 10) reduced it in writing. Initially an offence under Section 324/34 I. P. C. was registered at Crime No. 130/85. The injured was referred to medical examination by Dr. J. P. Tiwari (P. W. 12) who found an incised wound on her head 6cm x landl/2cm x 4cm and from this, brain matter was coming out and blood clot was present. Another incised wound was found below the right hand and a contusion on front side of the head. An incised wound was also found on the upper portion of the left hand. The injury No. 1 was opined to be dangerous to life and X-ray was advised. Contusion was caused by hard and blunt object. On receiving the medical opinion, offence under Section 307 I. P. C. was registered. An incised wound was also found on the upper portion of the left hand. The injury No. 1 was opined to be dangerous to life and X-ray was advised. Contusion was caused by hard and blunt object. On receiving the medical opinion, offence under Section 307 I. P. C. was registered. Spot map was prepared. Accused was arrested. An axe was recovered vide seizure memo Ex. P7. Broken bangle pieces were also recovered from the spot. Rampyari Bai was admitted to District Hospital, Chhatarpur on 25-11-1985. She was sent for further treatment to Medical College, Gwalior on 14-12-1985 where she was admitted to the Hospital on 15-12-1985. During the course of treatment itself, the challan came to be filed. The charge was framed on 22-1-1986. But, later on after about six days, deceased Rampyari Bai died and charge Under Section 302 I. P. C. was framed against the appellant. ( 4. ) ACCUSED abjured the guilt and contended that he was falsely implicated owing to previous litigation. ( 5. ) TRIAL Court has found that deceased Rampyari Bai died as a result of injury and has convicted the appellant for offence under Section 304 Part-I I. P. C. ( 6. ) LEARNED counsel for the appellant has mainly submitted that it is not established by the prosecution that death of Rampyari Bai took place owing to injury which was suffered by her in the incident. It is his submission that post-mortem examination was not performed and the deposition of the Doctor examined in the case is not enough to relate the death with the injury suffered by the deceased, as such conviction of the appellant under Section 304 Part-I I. P. C. is not sustainable. His further submission is that the conviction can at the most be maintained only under Section 326 I. P. C. It is further submitted that the appellant being young boy at the relevant time is entitled for benefit of provisions of Probation of Offenders Act. It is his further submission that the offence would not fall under Section 304 Part-II I. P. C. but, under Section 304 Part-II I. P. C. even if the finding of the Court-below is accepted and under Section 304 Part-II I. P. C. jail sentence is not mandatory. ( 7. It is his further submission that the offence would not fall under Section 304 Part-II I. P. C. but, under Section 304 Part-II I. P. C. even if the finding of the Court-below is accepted and under Section 304 Part-II I. P. C. jail sentence is not mandatory. ( 7. ) LEARNED counsel for the State submits that injury was inflcited on the vital part of the body by means of axe. It was a fatal blow which has resulted into death and conviction of the appellant does not call for any interference. Fracture was caused. Laceration of the brain took place. ( 8. ) IN the instant case, the Professor who performed the surgery at Gwalior Medical College has been examined and he has clearly opined that the death took place owing to the injury suffered by the deceased. There is overwhelming evidence on record to indicate that it was accused Suresh who had inflicted fatal blow on the head of the deceased. There is deposition of Ramkumar (PW-2), Poona Bai (PW-3) and Johri (PW-5) that accused Suresh is the author of the head injury found on the person of the deceased. The injury initially noted by Dr. J. P. Tiwari (PW-12) records that brain matter was coming out of the injury No. 1 which was an incised wound. Blood clotting was also there and this injury was dangerous to life. Other injuries were simple in nature. ( 9. ) PROFESSOR and Head of The Department Neuro-Surgery, Medical College, Gwalior, Dr. N. D. Vaishya (PW-7) had performed the surgery on 3-1-1986. He found that the wound was explored. Dura was found torn and brain was lacerated. On exploring the brain about 20. 00 of pus came out from midline area. Because of location no attempt was made to remove the depressed bone pieces. Wound was closed after putting antibiotic. The bed-head documents/case-sheet has also been produced by Dr. N. D. Vaishya (PW-7), who has clearly deposed that he had initially examined the deceased on 15-12-1985. Her condition was not satisfactory and there was possibility of pus formation in the brain. Her treatment was started, but, day by day her condition worsened. She was referred to Gwalior Medical College by District Hospital, Chhatarpur. Brain surgery was performed on 3-1-1986. Pus was found. There was injury on the peritorium and brain of Rampyari Bai. Her condition was not satisfactory and there was possibility of pus formation in the brain. Her treatment was started, but, day by day her condition worsened. She was referred to Gwalior Medical College by District Hospital, Chhatarpur. Brain surgery was performed on 3-1-1986. Pus was found. There was injury on the peritorium and brain of Rampyari Bai. After operation her condition for few days improved, but, later on in the entire brain pus formation took place. Her condition worsened and she ultimately died during the treatment in the hospital on 28-1-1986. The cause of death has been given by Dr. N. D. Vaishya (PW-7) to be injury and subsequent infection which engulfed the brain. He has stated that broken pieces of bone were not taken out as it was depressed and was on the vital part. There is absolutely nothing to dis-believe the evidence of Dr. N. D. Vaishya (PW-7) with respect to death of deceased Rampyari Bai. For not even a single day she could be discharged from the hospital right from the day one when she was in the Hospital at Chhatarpur and the cause of death was the injury in question only. Dr. N. D. Vaishya (PW-7) has stated that even in the absence of post-mortem examination, it can be said that the death took place owing to the injury. I am unable to accept the argument raised by learned counsel for the appellant that in the absence of post-mortem examination being performed, the cause of death could not be ascertained. From the evidence of PW-7 Dr. N. D. Vaishya and PW-12 Dr. J. P. Tiwari, cause of death is clearly made out and it was due to the injury which was suffered by the deceased at the hand of appellant. ( 10. ) LEARNED counsel for the appellant has relied on decision of the Supreme Court in case of Moti Singh and Anr. v. The State of Uttar Pradesh, AIR 1964 SC 900 . In the said case it was found that injured died in Kanpur and when the Sub-Inspector reached, dead body had been burnt couple of hours before. There was no evidence on record as to what caused Gaya Chandras death. v. The State of Uttar Pradesh, AIR 1964 SC 900 . In the said case it was found that injured died in Kanpur and when the Sub-Inspector reached, dead body had been burnt couple of hours before. There was no evidence on record as to what caused Gaya Chandras death. It is true that mere fact that the injury suffered was dangerous to life cannot be sufficient to hold that death took place on account of those injuries, but, in the instant case there is categorical evidence of the treating Physician of Professor and Head of the Department Neuro-Surgery, Medical College, Gwalior, Dr. N. D. Vaishya (PW-7), who has opined as to cause of death. There is nothing to discard or disbelieve his deposition. It is found worthy of credence. ( 11. ) LEARNED counsel for the appellant submits that as the deceased has died owing to result of injury which was dangerous to life, the case is clearly of a culpable homicide, not amounting to a murder. Counsel further submits that the accused appellant had inflicted only one injury on the head, he was a young boy at the relevant time and he was not intending to kill the deceased, but, was having the knowledge that the injury may cause death, some exchange of hot words had taken place, thus, offence falls Under Section 304 Part-II I. P. C. ( 12. ) LEARNED counsel for the appellant has also relied on decision of Apex Court in case of Chand and Ors. v. The State of U. P. , AIR 1972 SC 955 , in which head injury was inflicted by lathi. It was held that the accused must have had knowledge that they were causing such bodily injuries to deceased as were likely to cause death, on such a finding they could be convicted only under Section 304 Part-II I. P. C. and not under Section 304 Part-I I. P. C. ( 13. ) COUNSEL placed further reliance on the decision of the Supreme Court in case of Joseph v. State of Kerala, AIR 1994 SC 34 , wherein the incident took place, injury was inflicted on head with lathi, conviction was made under Section 304 Part-II I. P. C. ( 14. ) IN case of Bawa Singh v. State of Punjab, 1993 Cr. ) IN case of Bawa Singh v. State of Punjab, 1993 Cr. L. J. 49, the Apex Court came to the conclusion that where death took place owing to shock and haemorrhage resulting from two injuries, one attributed on accused and other to accused No. 2 who was acquitted, the conviction was sustained under Section 304 Part-II I. P. C. ( 15. ) THE distinction between Part-I and Part-II of Section 304 I. P. C. : the first paragraph is referred to as Part-I and second paragraph is referred to as Part-II. Part-I applies where the accused causes bodily injury with intention to cause death; or with intention to cause such bodily injury as is likely to cause death, whereas the second paragraph is attracted when accused is having knowledge that his act is likely to cause death, but, intention part is missing to cause death or such bodily injury which may ultimately result in death. While adjudging the intention of the accused it is also relevant to consider the weapon which he has used and also the fact whether his case falls in which of the exception contained in Section 300. Weapon is a relevant consideration as held by apex Court in case of Rakesh Singha v. State of Himachal Pradesh, AIR 1996 SC 3173 . It is the weapon by the use of which knowledge can be gathered that whether the accused knew the consequences of his act and also to certain extent facts and circumstances of the case constitute his intention coupled with the type of the weapon which he has used. If a death is caused and case is covered by any one of the five exceptions as provided under Section 300 I. P. C. then such culpable homicide shall not amount to murder. Section 304 I. P. C. provides punishment for culpable homicide not amounting to murder and the penalty is more when the intention is there to cause death or such bodily injury which may result in death and where such intention is missing, second paragraph is attracted. ( 16. ) IN case of Inder Singh v. State of Pepsu, AIR 1955 SC 439 , injury No. 1 was the fatal injury for which the deceased was kept under observation. The deceased however developed slight symptoms of compression of brain and these symptoms gradually increased and he became absolutely unconscious. ( 16. ) IN case of Inder Singh v. State of Pepsu, AIR 1955 SC 439 , injury No. 1 was the fatal injury for which the deceased was kept under observation. The deceased however developed slight symptoms of compression of brain and these symptoms gradually increased and he became absolutely unconscious. Extra dural haemorrhage set in and proved fatal. As discussed above in the instant case there was depressed fracture of the parietal bone. Laceration of brain took place, due to which pus had to be taken out and became the cause of death in the present case. In the aforesaid case - Inder Singh (supra) it was held by the Supreme Court that it was the accused who was responsible for inflicting the injuries which ultimately rersulted in the death of the deceased. Even though the blows were inflicted by the accused on the head of the deceased with force, the lathi not being iron rod and the deceased being a young man and strongly built the accused could not under the circumstances be held to have been actuated with the intention of causing the death of the deceased, nor despite the medical evidence, was the injury sufficient in the ordinary course of nature to cause his death, seeing that he survived for three weeks and seeing on the doctors admission that an injury of that of that kind was not incurable. But the accused no doubt knew that he would be causing such bodily injury as was likely to cause death and the offence committed by him would fall under Section 304 Part-I I. P. C. and 10 years R. I. was imposed. ( 17. ) IN case of Jagrup Singh v. The State of Haryana, AIR 1981 SC 1552 the Apex Court has laid down that there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304, Part-II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. ( 18. ) THE facts of the instant case go to show that initially Ramesh co-accused spitted while deceased was cleaning the utensils infronl of the house. He was coming after attending the date in court and also hurled abuses to the deceased, on that deceased started towards police station to lodge report, on that she was intercepted and inflicted injury on the head by full force by accused which resulted into depressed fracture and laceration of brain. The aforesaid facts go to show that Exception I of Section 300 is not attracted as Exception I is attracted only when if the accused, whilst deprived of the power of self-control by grave and sudden provocation. Exception 2 is also not attracted as the act cannot be said to be the outcome of exercise in good faith of the right of private defence of person or property. Exception 3 is also not attracted as the accused is not a public servant. Exception 4 is attracted when act is done without premeditation in a sudden fight, in the heat of a passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner Exception 5 is also not attracted as it was not the act done by the accused with the consent of the deceased. The present case is not covered under any of exception aforesaid. In the absence of any appeal against acquittal under Section 302 I. P. C. I am not inclined to interfere with the conviction and sentence imposed though the case is not under any of the exception enumerated under Section 300 I. P. C. ( 19. The present case is not covered under any of exception aforesaid. In the absence of any appeal against acquittal under Section 302 I. P. C. I am not inclined to interfere with the conviction and sentence imposed though the case is not under any of the exception enumerated under Section 300 I. P. C. ( 19. ) THE appeal is devoid of merit and is dismissed.