JUDGMENT 1. - This appeal by accused appellant Ram Gopal, is directed against the judgment and order dated 16.1.1997 of learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Kota whereby the accused appellant has been convicted under Section 302 Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 200/- and, in default of payment of fine, to further undergo rigorous imprisonment for two months. 2. Only contention raised by the learned counsel for the accused appellant is that in case the evidence produced by the prosecution is taken to be correct on its face value, the case against the accused appellant does not travel beyond under Section 304-11, Indian Penal Code. In support of his contention, the learned counsel for the appellant placed reliance on the following decisions:- 1. Gurnam Singh and Anr. v. State of Punjab, 1996 SCC (Cri) 96 and 2. Bapu Lal v. State of Rajasthan, 1987 (1)RLR 619 = Cr.L.R.(Raj.)1987, 418 . 3. Briefly stated the facts of this case are that the incident took place at 11.00 AM on 30.7.1990 at Village Mandita, Police Station, Sangod. 4. Ramesh Chand (P.W. -1) submitted a written report Ex. P. 1, on the basis of which FIR. was chalked out and case No. 103/90 (Ex. P. 2) was registered at Police Station, Sangod, District Kota, under Section 307 of the Indian Penal Code and Section 3 of the SC & ST (Prevention of Atrocities) Act, 1989 against the accused appellant. Injuries caused by the accused appellant on the person of the deceased Ram Pratap were examined by Dr. Prem Chand Khandelwal (P.W. 10) who prepared the injury report (Ex. P. 7). As per Dr. Prem Chand Khandelwal (P.W. 10) following injuries were there on the body of the deceased: (1) Incised wound 3" x 1/2"x bone deep on right side of forehead 1" away from midline. (2) Incised wound 3" x 1/2" x bone deep on left parietal bone 1/2" away from mid parietal region. 5. Ram Pratap died on 31.7.1990 in the M.B.S. Hospital, Kota. The police added Section 302 Indian Penal Code. 6. Post mortem of deceased was conducted by Dr. Y.K. Sharma (P.W. 16) and post mortem report is Ex. P-9. In the post mortem report (Ex. P. 9), the doctor reported the cause of death has been due to coma as a result of ante mortem head injuries. Dr. The police added Section 302 Indian Penal Code. 6. Post mortem of deceased was conducted by Dr. Y.K. Sharma (P.W. 16) and post mortem report is Ex. P-9. In the post mortem report (Ex. P. 9), the doctor reported the cause of death has been due to coma as a result of ante mortem head injuries. Dr. Y.K. Sharma (P.W. 16) in his statement, stated that the head was full of blood, right temporal and parietal and left temporal and parietal bones were broken in pieces, brain was totally crushed, the frontal bone of right side was also broken and brain underneath was crushed. The doctor opined that the death has been due to coma as a result of ante mortem head injuries. All injuries were ante mortem. Both injuries jointly and severally were sufficient in the ordinary course of nature to cause death. In the cross-examination this witness categorically stated that due to injury No. 1 a person can die. As a result of injury No. 1, the brain was crushed. He denied the suggestion that injury No. 1 would have been there as a result of falling on the stone. As a result of these injuries the blood was collected in his head. From the post mortem report (Ex. P. 9) and the statements of Dr. Y.K. Sharma (P.W. 16) we are satisfied that it is a case of culpable homicide. 7. The question which falls for our consideration is whether it is culpable homicide amounting to murder or culpable homicide not amounting to murder. 8. Written report Ex. From the post mortem report (Ex. P. 9) and the statements of Dr. Y.K. Sharma (P.W. 16) we are satisfied that it is a case of culpable homicide. 7. The question which falls for our consideration is whether it is culpable homicide amounting to murder or culpable homicide not amounting to murder. 8. Written report Ex. P. 1 filed by Ramesh Chand P.W. 1 reads as under: lsok es] Jh eku Fkkusnkj lk0 Fkkuk & laxksn fnukad 30-7-90 ekU;oj] fuosnu gS fd vkt fnu ds 11 cts djhc es esjs [ksr HkkbZ th okyh ckM+h dh j[kokyh dj jgk FkkA ikl es xksiky iq= yVwj ukFk fuoklh & eUMhrk vius [ksr es gkd jgk Fkk o ikl gh [ksr es jke izrki ehuk viuh tokj gy jgk FkkA brus es jke izrki o xksiky nksuksa xkyh xykSp djus yxs es ejs [ksr ls bu nksukas ds ikl vk x;kA jke izrki ehuk xksiky ukFk ls dg jgk Fkk fd rksus esjs [ksr dks gkd dj dCtk D;ks dj fy;kA bl ij xksiky us jke izrki ls dgk fd esjs [ksr es er vkuk tku ls ekj nwaxk o xksiky us dgk fd rw rsjh gn es iRFkj xkM+ ns brus es jke izrki us iRFkj xkM+ fn;kA brus es xksiky xqLlk [kkdj o tku l ekjus dh fu;r ls jke izrki ds flj es o lkeus yykV ij dwfV;k dh ekj nhA brus es jke izrki csgks'k gksdj ekSds ij gh fxj iM+kA mlh le; ekSds ij ?ku';ke iq= fd'ku xksiky fuoklh&eUMhrk ekStwn Fkk ftlus jke izrki ds flj es Vkoy cka/kkA blds ckn esa xkao es jkeizrki ds firk Hks:yky dks cqyk ys x;k vkSj lkFk ysdj tgka jke izrki iM+k gqvk Fkk ysdj vk;kA pksV ekjdj xksiky mlh le; Hkkx x;kA eSa jke izrki ehuk dks tks bl le; csgks'kh gkyr es gS ysdj fjiksZV djus Fkkus ij vk;k gwWaA dk;Zokgh dh tkosA izkFkhZ ch jes'k pUnz , jes'k pUnz iq= /kukyky ehuk fuoklh & eUMhrk 9. Ramesh Chand P.W. -1 stated that the incident took place at 11.00 a.m. on 30.7.1990. He was keeping watch over his field, the deceased and Ram Gopal were also keeping watch of their respective fields. Deceased Ram Pratap and accused Ram Gopal started abusing to each other. Deceased Ram Pratap told to accused Ram Gopal that why he has made encroachment over his field. He was keeping watch over his field, the deceased and Ram Gopal were also keeping watch of their respective fields. Deceased Ram Pratap and accused Ram Gopal started abusing to each other. Deceased Ram Pratap told to accused Ram Gopal that why he has made encroachment over his field. On this accused Ram Gopal warned the deceased not to come in his field. The accused told to Ram Pratap that he may put stone in his 'maid' i.e. where his field ends. On this, deceased Ram Pratap put stone. On this accused became furious and inflicted two injuries by 'KUTIA' one on the head and another on the fore-head of deceased Ram Pratap, which resulted in oozing out blood from his head. Ghanshyam (P.W. 3) put a towel on the head of the deceased. The accused ran away towards the village. In the cross-examination Ramesh Chand (P.W. 1) stated that at the time of exchange of abuses between accused and the deceased, both were standing in their respective fields. It is stated that before this incident he has not seen any quarrel between the accused and the deceased. It is stated dividing line of the fields is not there and it is difficult to find out where the fields divide. The deceased had put stone in the field of accused Ram Gopal. The deceased was in the field of the accused. In the statement of Ramesh Chand (P.W. 1) it comes out that the deceased fell down after sustaining injuries in the field of accused Ram Gopal. It is a case of quarrel between the accused and the deceased over an issue of divide line of their fields. There was no premeditation. Prior to this there was no quarrel between the accused and the deceased. As per the statement of Ramesh Chand P.W. 1 the deceased had put stone on the field of the accused. The accused was in his own field. The deceased came in the field of the accused. 10. Ghanshyam (P.W. 3) stated that quarrel between the accused and the deceased was over the issue of dividing line of their fields. They were abusing to each other. The accused Ram Gopal requested this witness to make both of us understand over the issue. Accused Ram Gopal told to deceased that he may put the stone at the place where he considers that his field ends. They were abusing to each other. The accused Ram Gopal requested this witness to make both of us understand over the issue. Accused Ram Gopal told to deceased that he may put the stone at the place where he considers that his field ends. When the deceased had put a stone, accused Ram Gopal inflicted two injuries on his head by 'KUTIA'. In cross-examination the witness admitted that prior to this incident, ever there was no quarrel between them. They did not intervene in the matter and were standing at a distance of 4-5 ft. 11. From the statements of this witness it is clear that the accused and the deceased were quarelling over the issue of marking of dividing line of their fields and suddenly two injuries were caused by the accused to Ram Pratap. There was no quarrel in between them earlier. 12. Mathura Lal (P.W. 4) has admitted in his cross-examination that prior to this incidence there was no quarrel between them. He reiterated in the cross-examination that there was no quarrel between them earlier. 13. Mst. Anandi Bai (P.W. 8) is the wife of the deceased. From her statements also we find that a sudden quarrel was there between accused and deceased on the division line of their fields. She admitted, in her cross-examination, that prior to this incident the accused and the deceased never fought. They were living peacefully as brothers. They had good relations to the extent that in case cattle entered in the field of deceased, the accused used to drag them out, and in case cattle entered in the field of accused the deceased used to drag them out. We consider it to be appropriate to reproduce here what has come from her own mouth: bl ?kVuk ds igys esjs ifr o eqyfte dHkh ugh yM+sA igys vkjke ls HkkbZ&HkkbZ dh rjg ,d nwljs ls O;ogkj djrs FksA igys ,slk izse Fkk fd esjs [ksr es tkuoj Hkh vk tkrs Fks rks eqyfte Hkxk nsrk Fkk vSkj eqyfte ds [ksr es tkuoj vk tkrk Fkk rks esjs ifr Hkxk nsrs FksA 14. In the case of Bapu Lal v. State of Rajasthan (supra) there were four injuries on the person of deceased and out of which two, one was on the left parietal region and the another was on occipital region. In the case of Bapu Lal v. State of Rajasthan (supra) there were four injuries on the person of deceased and out of which two, one was on the left parietal region and the another was on occipital region. Though both the injuries were stated to sufficient in the ordinary course of nature to cause death, by the doctor, the Court held that the case falls under Part-II of Section 304 Indian Penal Code and accused appellant therein was held guilty of culpable homicide not amounting to murder and convicted and sentenced under that section. One fact which highly prevailed with the Court while deciding the case of Bapu Lal v. State of Rajasthan (supra) that the deceased in that case died after two days of the incidence. 15. On comparison of injuries which were there on the body of the deceased in the case of Bapu Lai v. State of Rajasthan (supra) and the injuries found on the body of the deceased in this case, the injuries on the deceased Ram Pratap were much more serious in nature. In the case of Bapu Lal v. State of Rajasthan (supra) for injuries No. 1 and 2 X-ray was suggested, but that report was taken. Here in this case the injuries on head of deceased Ram Pratap appears to have been caused with force, otherwise left and right temporal and parietal bones and crushing of brain would not have been there. In this case, the incident took place at 11.00 a.m. on 30.7.1990, the post mortem was conducted at 9.15 a.m. on 31.7.1990 and the inquest report was prepared at 7.15 a.m. on 31.7.1990, thus Ram Pratap was died at 7.15 a.m. on that day in all eventualities. The deceased had died within 22 hours of the incidence. 16. These two facts of the case of Bapu Lal v. State of Rajasthan (supra) distinguish this case from that. 17. In the case of Gurnam Singh and Anr. v. State of Punjab (supra) the accused have been convicted under Section 304 Part-I, Indian Penal Code. The deceased had died within 22 hours of the incidence. 16. These two facts of the case of Bapu Lal v. State of Rajasthan (supra) distinguish this case from that. 17. In the case of Gurnam Singh and Anr. v. State of Punjab (supra) the accused have been convicted under Section 304 Part-I, Indian Penal Code. In para No. 8 of the judgment, their Lordships of the Supreme Court held, "that the incident took place in course of a sudden quarrel over the opening of the outlet and therefore the appellants can be said to have committed an offence under Section 304 (Part-I) Indian Penal Code and not under Section 302 Indian Penal Code." 18. In the case in hand also the incidence took place between deceased and accused at the spur of moment without any premeditation in a sudden fight upon a sudden quarrel over the issue of marking division line of their respective fields. There was no previous enmity between the accused and the deceased nor any quarrel previous to this incident. Though there are two injuries inflicted by the accused on the head of the deceased but in the facts of this case it cannot be said that the accused did take any undue advantage or acted in a cruel or un-usual manner. The deceased put stone to divide their fields and the incident took place at the spur of the moment. The accused appellant can not be held guilty of offence of culpable homicide amounting to murder. 19. Looking to the nature of the weapon of offence used by the accused and the injuries inflicted on the person of the deceased, we are satisfied that his this act by which death of Ram Pratap was caused with the intention of causing such bodily injury as is likely to cause death. 20. For the foregoing discussion we set aside the conviction and sentence of the accused appellant Ram Gopal son of Latoor Nath, by Caste Nath, Resident of Mandita, Tehsil Sangod, District Kota (at present in District Jail, Kota) recorded under Section 302 Indian Penal Code and convict him under Section 304 (Part-I) Indian Penal Code. For the altered conviction, we sentence the accused appellant to suffer rigorous imprisonment for ten years and a fine of Rs. one thousand, in default of payment of fine, the accused appellant shall further undergo rigorous imprisonment for one year. For the altered conviction, we sentence the accused appellant to suffer rigorous imprisonment for ten years and a fine of Rs. one thousand, in default of payment of fine, the accused appellant shall further undergo rigorous imprisonment for one year. The appeal accordingly stands disposed of. Appeal partly allowed. *******