JUDGMENT 1. 1. This D. B. Criminal Appeal No. 517/1997 and S.B.Criminal Revision Petition No. 424/ 1997 are directed against the judgment of the learned Additional Sessions Judge, Sikar dated 17.10.1997. 2. The case of prosecution in Criminal Appeal No. 517/1997 is that there was a dispute on boundary line between the field of complainant and accused party. On 30.10.1991 in the morning villagers came on the spot to settle the dispute between accused party and complainant party in appeal (hereinafter called as complainant party). While the conversations were going on, Jhoonjha, Asha and Jodha started abusing Sawai Singh, father of complainant. Thereafter there was a scuffle, Baldeva son of Jhoonjha had given kuihari blow on the head of deceased Sawai Singh, Hema Ram son of Bodu Ram, Jankaram son of Jodha Ram also inflicted lathi blows on the person of Sawai Singh. Banshi Nai, Bhagirath Jat, Hanuman Singh, Mal Singh and Lal Singh were the eye witnesses who tried to save Sawai Singh. Baldeva Ram thereafter ran away from the spot. While Sawai Singh was taken to hospital, near Badalvas, he expired and then the body of deceased was taken to the police station and matter was reported to police. 3. On this report, the case was registered for the offence under sections 147, 148, 302 and 323 read with Section 149 IPC. After investigation, challan was submitted under sections 147, 148, 302 and 323 read with Section 149 IPC, against accused Baldeva Ram, Hema Ram, Jankaram; Jodharam, Asha Ram and Jhoonjha Ram. During trial as many as 11 witnesses were examined and in defence about 11 documents were exhibited, they are Ex.D/1 to Ex.D/11. After trial, on considering the material on record, the learned Additional Sessions Judge was of the view that prosecution has failed to prove beyond reasonable doubt the case of the prosecution under section 302 read with Section 149 IPC, against accused Hema Ram, Jodharam, Jankaram, Asha Ram and Jhoonjha Ram. Therefore, she acquitted accused Hema Ram, Jodharam, Jankaram, Asha Ram and Jhoonjha for the offence under sections 147, 148, 302 and 323 red with Section 149 IPC, but she found that prosecution has proved its case beyond reasonable doubt, against accused Baldeva Ram under section 302. Accordingly the accused Baldeva Ram has been convicted under section 302 IPC and sentenced him to undergo life imprisonment and a fine of Rs. Accordingly the accused Baldeva Ram has been convicted under section 302 IPC and sentenced him to undergo life imprisonment and a fine of Rs. 2000/-, in default of payment of fine, to further undergo one year's rigorous imprisonment. 4. The facts of S.B. Cr. Revision Petition No. 424/1997 are that an FIR bearing No. 159/91 has been lodged on 1.11.1991 by one Deda Ram to the effect that on 30.10.1991 at about 7.30-8.00 A.M. some villagers were gathered to settle the dispute between the appellant party and complainant party, after sometime, there was some altercation between complainant party and appellant party,therefore, they went back to their respective fields. After some time Sawai Singh, Richpal Singh, Mal Singh, Lal Singh, Moti Singh, Laxman Singh son of Mal Singh, Laxman Singh son of Udai Singh and Narpat Singh came in the field of Jhoonjha Ram and started beating Jhoonjha Ram. Jhoonjha Ram received head injury and there was fracture of bone in head. The injury was inflicted on the leg of Asha Ram also. Some villagers had intervened and saved Asha Ram and Jhoonjha Ram. They were admitted in the hospital. Then the matter was reported to the police at 3.00 p.m. at Police Station Sadar, Sikar. The FIR No. 159/91 has been registered for the offence under sections 147, 447 and 323 IPC. After investigation, the challan has been tiled against the complainant party in appeal under sections 147,447, 323 and 325 IPC. 5. In cross case arising out of FIR No. 159/91, the prosecution has examined as many as 10 witnesses. In defence about 13 documents are exhibited. After considering the submissions and statements of the prosecution witnesses in this cross case, accused complainant party in cross case are acquitted from the charges under sections 147, 447, 323 and 325 read with Section 149 IPC levelled against them. 6. At the time of hearing of appeal of Baldeva Ram, learned counsel for the appellant has not seriously argued the appeal on merits, on issue whether offence has been committed by accused appellant Baldeva Ram ? But learned counsel has submitted that even if we accept that there was an offence and cause of death was Kulhari blow inflicted by Baldeva Ram, the case does not travel beyond 304 Part 11 IPC. Learned counsel for the appellant Baldeva Ram has also not seriously pressed the Revision Petition 7. But learned counsel has submitted that even if we accept that there was an offence and cause of death was Kulhari blow inflicted by Baldeva Ram, the case does not travel beyond 304 Part 11 IPC. Learned counsel for the appellant Baldeva Ram has also not seriously pressed the Revision Petition 7. Learned Public Prosecutor and learned counsel for the complainant submitted that considering the nature of injury, the accused should be convicted under sections 302 or 304 Part l IPC. 8. When learned counsel for the appellant has not seriously pressed the appeal on merits if accused is convicted under section 304 Part II l.P.C.Therefore, we need not go into the evidence in detail with a view to find out whether the offence has been committed or got ? Therefore, we have to consider only whether the case does travel beyond Section 304 Part II IPC ? Learned counsel submitted that the incident was not with pre-meditation. The incident occurred on spur of moment after altercation between the complainant and accused party while the villagers came in the morning in the field of accused to settle the boundary dispute between complainant and accused party. He further submitted that not only the incident has taken place in the field of accused party but the kulhart blow has been given in right of private defence, just to save his father and uncle who were being beaten by the complainant party. 9. Whether the offence falls under section 302 IPC or 304 Part II IPC, that depends on the facts and circumstances of each case, before we examine the facts of this case, we would like to refer some observations of Hon'ble Supreme Court and high Courts on this issue. 10. In Jagrup Singh v. The State of Haryana, AIR 1981 SC 1552 , in para 14, their Lordships observed as under:- "ln the absence of any specific and positive evidence whether oral or documentary, it is not possible to arrive at any positive conclusion that this circumstance funished any motive for the accused to attack Chanan Singh (deceased) and three other ;prosecution witnesses. After a careful perusal of the entire prosecution evidence, it appears more probable that the accused had also joined in the marriage as the collaterals but something happened on the spur of moment which resulted in the infliction of injury by Jagrup Singh on the person of Chanan Singh which resulted into his death. In the first information report, it had not been disclosed, as was subsequently made out at the `trial, that the accused had come from the house of Jarnall Singh, accused armed with weapons (emphasis supplied).In our judgment, the High Court having held that it was more probable that the appellant Jagrup Singh had also attended the marriage as the collateral, but something happened on the spur of moment which resulted in the infliction of the injury by Jagrup Singh on the person of the deceased Chanan Singh which resulted in his death. In the manifestly erred in applying Clause Thirdly of Section 300 of the Code. On the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the (moment, without pre-meditation and in a sudden fight, the case was covered by the Exception 4 to Section 300." 11. In Virsa Singh v. State of Punjab, AIR 1958 SC 465 , whether the case comes under section 300 (supra), the Court observed that the prosecution should establish four facts and observed in para 12 as under:- "First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional,or that some other kind of injury was intended. Once these three elements are proved to be present the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 12. In State of Karnataka v. Vedanayagam, 1995 Cr.L.R. (SC) 69 , their Lordships have considered whether the case falls under section 304 Part 11 or 302 IPC. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 12. In State of Karnataka v. Vedanayagam, 1995 Cr.L.R. (SC) 69 , their Lordships have considered whether the case falls under section 304 Part 11 or 302 IPC. Their Lordships held that the case falls under section 302 IPC and observed in para 8 as under:- "From all the above facts, there is no doubt whatsoever that the deceased intended to cause that particular injury on the chest which necessarily proved fatal. Therefore, Clause Thirdly of Section 300 IPC is clearly attracted. The High Court erred in holding that "the accused did not intend to cause his death by inflicting the injury on the chest because there was no pre-meditation and therefore the offence would be culpable homicide." This view of the High Court is not correct and as discussed above Clause : Thirdly of Section 300 IPC is clearly attracted. For all these reasons we set aside the judgment of the High Court and restore the judgment of the trial Court convicting the accused under Section 302 IPC and sentencing him to undergo imprisonment for life. Accordingly the appeal is allowed." 13. In Chahat Khan v. The State of Haryana, AIR 1972 SC 2574 , their Lordsl is have taken the view that intention can be inferred from the nature of injury caused and place of injury and observed in para 8 as under:- "Lastly we may mention that a good deal of emphasis has been laid on the absence of motive and the fact that the appellant did not sue his gun and only used his lathi which according to the argument of the learned counsel showed that he had no intention to kill the deceased. We are unable to accede to this contention for the simple reason that injury No. l was on a region of the head which was a vital part. According to the medical evidence this injury proved fatal. When a person is causing an injury on such a vital part the intention to kill can certainly be attributed to him. We find no merit in this appeal and it is dismissed." 14. According to the medical evidence this injury proved fatal. When a person is causing an injury on such a vital part the intention to kill can certainly be attributed to him. We find no merit in this appeal and it is dismissed." 14. In K. Ramakrishanan Unnithan v. State of Kerala 1999 Cr.L.R. (SC) 206 , in para 6, Their Lordships observed as under:- "It is however crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with PW 1. The scenario in which the appellant has been stated by the eye-witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under section 302 but under Part 11 of Section 304 IPC : We accordingly, set aside the conviction of the appellant under section 302 IPC and instead, convict him under section 304 Part II." 15. In Mange Ram v. The State of Rajasthan (2001 WLC (Raj. 39) this Court also has considered that in all the cases, particular case fall under section 302 or 304 Part II IPC. While considering this aspect, in para 11 this Court observed as under:- "Thus in our opinion, there is substance in the alternate contenduion raised by the learned counsel for the appellant that in the facts of the case no intention of murder can be attributed to the appellant Mange Ram. Only a single injury has been caused on the head. The blow has not been repeated. It appears that some quarrel took place on the spur of moment and in the heat of passion a blow was given by appellant Mange Ram on the head of Somvir. He can only be clothed with the knowledge that the injury inflicted by him may cause death." 16. In Mohan Singh v. The State of Rajasthan, 2001(3) WLC (Raj) 373 , again this Court has considered in what circumstances case fall under section 302 or 304 Part II IPC and observed in para 7 as under:- "He has proved the post-mortem report Ex.P12. In Mohan Singh v. The State of Rajasthan, 2001(3) WLC (Raj) 373 , again this Court has considered in what circumstances case fall under section 302 or 304 Part II IPC and observed in para 7 as under:- "He has proved the post-mortem report Ex.P12. In his opioion the deceased Pratap Singh died due to profuse bleeding's form the wound. He also stated that the cause of death was clothing of blood in the skull and injury to temporal bone. A perusal of the post-mortem report shows that the incident took place o the spur of moment. In these circumstances, it cannot be inferred that the appellant intended to commit murder of Pratap Singh. He may be clothed with the knowledge that his act in all probability may cause death. he has not acted in a cruel manner. The blow was not repeated. Thus, his conviction under section 302 IPC is not sustainable. He is liable to be convicted for offence under section 304 Part II IPC." 17. The facts which are found by the learned trial Court in the case in hand are that the cause of death is head injury which has been caused by kulhari blow by the appellant. In this persons of both the parties have sustained injuries. The incident took place in the field of accused as per investigation. The challan has been submitted against the complainant party which includes challan under section 447 IPC.The complainants are acquitted in cross case giving them the benefit of doubt. 18. Learned counsel for the accused appellant submitted that while the lathi blows are being given by the complainants of the father and uncle of accused, in defence he might have used the kulhari blow with intention to commit murder. There was no pre-meditiation for the offence. Some villagers were there on the spot to settle the dispute of boundary between the field of the accused appellant and complainant party. There were altercation. Thereafter incident took place on spur of moments. 19. Though the benefit of doubt has been given to the complainant party in cross case but it can not be ruled out that injures are inflicted on the body of the father and uncle of accused appellant by complainant party. There were altercation. Thereafter incident took place on spur of moments. 19. Though the benefit of doubt has been given to the complainant party in cross case but it can not be ruled out that injures are inflicted on the body of the father and uncle of accused appellant by complainant party. On seeing that if accused appellant has used that kulhari and inflicted kulhari blow and that resulted in death of deceased, the intention of accused can not be inferred that the kulhari blow was given with an intention to cause death of deceased Sawai Singh. We also cannot ignore the fact that Kulhari is agriculture tool commonly used for the agricultural purpose and he has not repeated the kulhari blow. The incident tool place in the spur of moment in presence of the villages who came to settle the depute. In our view, the offence does not travel beyond Section 304 Part-II IPC. The accused appellant has also under gone more than five years and six months imprisonment. 20. As a result of the aforesaid discussion, we set aside the conviction under section 302 IPC and instead convict the accused appellant Baldeva Ram under section 304 Part II IPC and sentence him to the period already undergone. 21. S.B. Criminal Revision Petition No. 424/1997 has not seriously been pressed and we have convicted Baldeva Ram under section 304 Part II instead under section 302 IPC, we find no justification to interfere in the judgment to the learned trial Court dated 17.10.1997. In the result, the appeal is party allowed while the revision petition is dismissed. *******