JUDGMENT Virender Singh, J. - Satnam Singh son of Nain Singh stands convicted under section 304 Indian Penal Code by impugned judgment of learned Additional Sessions Judge, Ferozepur dated 24.4.1991. He has been sentenced to undergo RI for five years and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo RI for three months. 2. Alongwith the present appellant, his two brothers Munsha Singh, Surjit Singh and mother Kartaro Bai were also booked but they stand acquitted. The State has not preferred any appeal against their acquittal. 3. Jatto Bai is the deceased in this case. 4. The facts of the prosecution case are that on 15.5.1990 Jatto Bai (since deceased) received information from her grandsons that when they were returning from the school they were beaten by the sons of Nain Singh. Jatto Bai went to the house of Nain Singh to reprimand them. In the street Kartaro Bai met her and Jatto Bai reprimanded her. Both had exchanged abuses. It is then the case of the prosecution that Kartaro Bai asked her sons to teach a lesson to Jatto Bai for reprimanding her. Thereupon the present appellant and his brother Munsha Singh came from their house. The present appellant allegedly gave a fist blow near the amblicus to Jatto Bai. Munsha Singh also gave fist blows. She raise hue and cry which attracted Lal Singh who rescued her. Jatto Bai was taken to the hospital. Message was set to the police station Sadar Fazilka by the doctor whereby ASI Nasib Chand PW4 reached the hospital and recorded statement Ex.PG of Jatto Bai at 7.15 PM on 15.5.1990 itself and an entry to this effect was made in the concerned police station vide Ex. PG/2. Jatto Bai died on the following day i.e. 16.5.1990 and consequently a formal FIR Ex. PG/3 was recorded under section 304/34 Indian Penal Code. 5. After completion of investigation the present appellant alongwith his two brothers and mother were challenged in this case. 6. The learned trial Court had charged all the accused under section 304 read with section 34 Indian Penal Code (wrongly mentioned as section 307 read with section 34 Indian Penal Code in original judgment). 7. The prosecution in support of its case has examined PW1 Baldev Singh MHC, PW2 Dr. Inder Mohan Chalana, PW3 Jagir Singh and PW4 ASI Nasib Chand. 8. 7. The prosecution in support of its case has examined PW1 Baldev Singh MHC, PW2 Dr. Inder Mohan Chalana, PW3 Jagir Singh and PW4 ASI Nasib Chand. 8. The defence taken up by the present appellant was of denial. 9. The learned trial court after appreciating the entire evidence has acquitted Kartaro Bai, Munsha Singh and Surjit Singh by extending benefit of doubt to them. However, the present appellant stands convicted under section 304 Indian Penal Code. Aggrieved by the impugned judgment of conviction and sentence he has preferred the present appeal. 10. I have heard Mr. Bipan Ghai, learned counsel for the appellant and Mrs. B.K. Mann, learned Senior Deputy Advocate General, representing the State of Punjab. With their assistance I have also gone through the entire record. Mr. Ghai has made two fold submissions :- (a) That the prosecution has not been able to prove the charge against the present appellant beyond any shadow of doubt; (b) In case the prosecution evidence is believed as it is, the conviction of appellant under section 304 Indian Penal Code is unsustainable and he at the most can be convicted under section 323 Indian Penal Code. 11. Developing his first limb of argument, Mr. Ghai has vehemently contended that the initial case of the prosecution is based on the statement Ex. PG allegedly made by Jatto Bai (since deceased) in which she has stated that when she was going to the house of Nain Singh, Kartaro Bai had met her on the way and got annoyed due to remonstration and started abusing her. It is then stated in Ex.PG that Satnam Singh (appellant) and Munsha Singh also came there. Satnam Singh gave a fist blow hitting the amblicus of Jatto Bai and Munsha Singh had also given a fist blow. It is then contended by Mr. Ghai that the prosecution agency on the following day had recorded the statement of one Jagir Singh son of Jatto Bai (PW3) under section 161 Criminal Procedure Code in which he has stated that on the scene of occurrence Satnam Singh, Munsha Singh and Surjit Singh had reached and Satnam Singh appellant had given fist blow to Jatto Bai below the amblicus and Kartaro Bai had given brick blow which hit Jatto Bai below amblicus. Jagir Singh has further stated that Munsha Singh had also given fist blow which hit his mother on her back side. The learned counsel then contends that Jagir Singh has been disbelieved by the trial court so far as participation of Kartaro Bai, Munsha Singh and Surjit Singh are concerned and this by itself is a good ground for extending benefit of doubt to the present appellant also. 12. Developing his case further, Mr. Ghai submitted that even from the medical evidence the case set up by the prosecution was against Kartaro Bai only because the entire prosecution case, after the completion of investigation is that Kartaro Bai in fact had given a brick blow below the amblicus of Jatto Bai (since deceased) and the prosecution agency had also made an attempt to lend corroboration from the statement of Dr. Inder Mohan Chalana, PW2 who has stated that the possibility of injury on the person of Jatto Bai by brick with force cannot be ruled out. The learned counsel contends that even in cross-examination this doctor has categorically stated that reddish contusion cannot be caused by a fist blow on the abdomen which is very elastic structure. In this context my attention has also been drawn to the evidence of Dr. I.M. Chalana PW2. Mr. Ghai has also referred to the statement of Nasib Chand PW who is the Investigating Officer of this case and has categorically stated that during inspection of the place of occurrence he had lifted one half broken brick and same was taken into possession vide recovery memo Ex. PK. From this all the learned counsel develops his arguments that the case of the prosecution from the very beginning was against Kartaro Bai and even during the trial the main thrust of the prosecution was qua her visualising that there is only one injury on the person of Jatto Bai. Since Kartaro Bai has been acquitted by the trial court, it would not be safe to convict the present appellant as his involvement becomes doubtful. Moreover the State has not filed any appeal against the acquittal. 13. In the same breath Mr. Since Kartaro Bai has been acquitted by the trial court, it would not be safe to convict the present appellant as his involvement becomes doubtful. Moreover the State has not filed any appeal against the acquittal. 13. In the same breath Mr. Ghai takes the advantage of acquittal of Munsha Singh who has also allegedly given fist blows to Jatto Bai and contends that keeping in view that deceased Jatto Bai has received only one reddish contusion which is possible by brick bat only, the case of the present appellant is at par with Munsha Singh who already stands acquitted. The learned counsel, thus, prays for acquittal of the present appellant as well. 14. The other argument advanced is that assuming for the sake of argument though not condeed, taking the prosecution story to be true on its face value no offence under section 304 Indian Penal Code is made out and at the most it would fall under section 323 Indian Penal Code. In support of his contentions, the learned counsel has relied upon judgment of the Apex Court rendered in Jani Gulab Shaikh v. The State of Maharashtra, 1970 CAR 40 (SC). 15. On quantum of sentence, it has been submitted that the appellant has already undergone 12 months of his substantive sentence including about one month after conviction and thus, prayed for a lenient view in the quantum of sentence relying upon a judgment of this Court render in Chhota Singh v. State of Punjab, 1998(1) RCR(Criminal) 467 in which sentence of five years was reduced to 13 months considering the time gap of 13 years in occurrence and the disposal of the appeal. 16. Mrs. Mann has strenuously refuted the arguments advanced by the learned counsel for the appellant and has contended that the appellant has been rightly convicted for the charge framed against him under section 304 Indian Penal Code as the injury on the person of Jatto Bai has caused damage to the intestines of the lower part of the abdomen which ultimately caused her death. 17. After hearing the rival contentions of both the sides, I am of the view that the appellant does not deserve acquittal in this case but at the same time, the charge for which he has been convicted is liable to be diluted to section 323 Indian Penal Code. 17. After hearing the rival contentions of both the sides, I am of the view that the appellant does not deserve acquittal in this case but at the same time, the charge for which he has been convicted is liable to be diluted to section 323 Indian Penal Code. My reasons for arriving at the said conclusion are set out as under :- 18. Admittedly, the present case rests upon the statement of Jatto Bai Ex. PG. According to her statement the present appellant had given fist blow below the amblicus. The medical evidence adduced by the prosecution is to the effect that Jatto Bai had received one injury which is reddish contusion 5 cm x 3 cm, 3 cm below the amblicus extending on either side. Tenderness was also present. No doubt the doctor has stated in his evidence that reddish contusion cannot be caused by fist blow on the abdomen which is very elastic structure and that possibility of this injury caused by brick with force cannot be ruled out but this statement can be said to be a hypothetical statement and this by itself would not wash away the statement of Jatto Bai which in act has taken the shape of dying declaration. The fact remains that the presence of (sic) has been doubted by the trial court for certain cogent reasons. (sic) role is doubted. According to the statement of Jatto Bai, although Munsha Singh has also been shown to have caused fist blow but no specific portion where it hit, has been shown. He also, thus, got the benefit of doubt. Surjit Singh who was shown to have caused injuries on the back of Jatto Bai also stands acquitted because the part attributed to Surjit Singh is held to be doubtful as presence of Jagir Singh is doubtful. In this set of circumstances the factual position emerges is that there is only one injury below the amblicus and as per the dying declaration it is attributed to the present appellant by fist blow. Thus, in my view there is no reason to disbelieve Ex.PG and as such the appellant does not deserve clean acquittal. 19. The principal question now arises is as to whether the conviction of the appellant as recorded by the trial court under section 304 Indian Penal Code deserves to be maintained as it is or the offence is to be diluted. 19. The principal question now arises is as to whether the conviction of the appellant as recorded by the trial court under section 304 Indian Penal Code deserves to be maintained as it is or the offence is to be diluted. 20. Admittedly, the case of the prosecution as emerges from the statement Ex.PG is that when grand sons of Jatto Bai had told her that they were returning from the school they were beaten by the sons of Nain Singh. Thereafter Jatto Bai left for the house of Nain Singh for remonstration. Incidently Kartaro Bai met on the way. Two ladies exchanged abuses. In the meantime, the present appellant and his two brothers allegedly reached there and then the present appellant also gave fist blow on the amblicus of Jatto Bai. In my view the appellant acted on a sudden impulse when two ladies were abusing each other and thereafter giving fist blow. This is my view, would not amount to culpable homicide amounting to murder or not to murder punishable under section 302 or 304 Part-II Indian Penal Code. The present appellant cannot be posted with the knowledge that the death was likely to result in the present set of circumstances on account of injury caused by him to Jatto Bai. So the conviction under section 304 Indian Penal Code as recorded by the trial Court is unsustainable and the present offence would fall under section 323 Indian Penal Code. In the Jani Qulab Shaikhs case (supra), the conviction of the appellant under section 304 Part-II Indian Penal Code was altered to section 323 Indian Penal Code almost in the same set of circumstances as in that case the deceased who was in a drunken condition was given a push and he consequently fell on the road resulting into fracture of occipital bone. 21. My observation to the effect that the present case falls within the ambit of section 323 Indian Penal Code is strengthened by another judgment rendered by the Honble Apex Court in State of Karnataka v. Shivalingaiah, 1988 Crl. L.J. 394. In the said case conviction was ultimately maintained by their Lordships under section 325 Indian Penal Code on the ground that the act of the accused in squeezing the testicles of a person would be an offence of voluntarily causing grievous just under section 325 Indian Penal Code. L.J. 394. In the said case conviction was ultimately maintained by their Lordships under section 325 Indian Penal Code on the ground that the act of the accused in squeezing the testicles of a person would be an offence of voluntarily causing grievous just under section 325 Indian Penal Code. In the said case there was a categorical statement of the doctor that the act was dangerous to human life and had led to cardiac arrest of the deceased which was instantaneous. In the present case the factual position is that the appellant had given fist blow to the deceased causing contusion falling within the ambit of section 323 Indian Penal Code. The net result is that the present appellant stands acquitted of the offence punishable under section 304 Indian Penal Code and is hereby convicted under section 323 Indian Penal Code. The sentence already undergone by the appellant shall be considered as substantive sentence for section 323 Indian Penal Code as the maximum sentence for this offence is one year and the said period of sentence, as stated by learned counsel for the appellant and not disputed by the State counsel, has already been consumed. Resultantly, the present appeal is partly allowed. Appeal partly allowed.