JUDGMENT 1. 1. The above mentioned accused appellant has preferred this appeal against the judgment and order dated 30.8.2001 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No. 32/99 by which he convicted and sentenced the accused appellant as under: Conviction U/s Sentence awarded 302 I.P.C. Imprisonment for life and a fine of Rs. 2000/-. In default of payment of fine to further undergo 1 month's R.I. 323 I.P.C. 1 month's R.I. By the same judgment and order dated 30.8.2001, the learned Additional Sessions Judge acquitted other two accused persons, namely, Rajendra Kumar and Mokham Ram for offences under Sections 302/34 and 323 I.PC. 2. It arises in the following circumstances : (i) That on 6.4.99 at about 2.45 p.m. PW. 1 Jagdish S/o Mani Ram, resident of Mehrana gave Parcha Bayan (Ex.P/1) to PW. 9 Ridmast Khan, ASI of the Police Station Bhirani, Dist. Hanumangarh stating that his uncle Mokham Ram (accused) had his field near the field of PW. 1 Jagdish and a dispute between him and Mokham Ram was going on in respect of land and turn of water and because of that Narendra Kumar (accused appellant) and Rajendra Kumar another accused who are sons of accused Mokham Ram had enmity with him. It was further stated by PW. 1 Jagdish that on 5.4.99 in the night, there was his turn of getting water which was interrupted by his uncle Mokham Ram and his two sons, namely, accused appellant Narendra Kumar and another accused Rajendra Kumar and some altercation had taken place. It was further stated by PW. 1 Jagdish that on the next day i.e. on 6.4.99 at about 11.30 a.m. in the morning, when he was passing through his Dhani, he saw that the accused party was making the way forcibly for which he intervened and at that time his brother Om Prakash (hereinafter referred to as the deceased) also came there and upon this the accused appellant Narendra Kumar came there with an iron pipe and gave a blow on the head of Om Prakash as a result of which he fell down and when PW. 1 Jagdish tried to save the deceased, he was also given some blows by the accused appellant and at that time, his neighbour Dana Ram (PW. 7) and Bhani Ram (RW. 8) also came there. 1 Jagdish tried to save the deceased, he was also given some blows by the accused appellant and at that time, his neighbour Dana Ram (PW. 7) and Bhani Ram (RW. 8) also came there. (ii) That on this Parcha Bayan (Ex.P/1), regular FIR Ex.P/13 was chalked out by the police for offence under Section 307 I.PC. and investigation was commenced. (iii) During the course of investigation, deceased as well as RW. 1 Jagdish were got medically examined by RW. 11 Dr. Subhash Rajput and their injury report is (Ex.P/18). However, later on the deceased died on 8.4.99 and therefore, Section 302 I.PC. was added to the case and nnst mnrtem of the body of the deceased was got conducted by RW. 5 Dr. Ram Lal Beniwal and the post mortem report is Ex.P/7. (iv) That the accused appellant Narendra Kumar, Rajendra Kumar and Mokham were got arrested by PW. 9 Ridmast Khan on 14.4.99, 14.4.99, 23.4.99 respectively through Fard Ex.P/22, P/23 and P/27 respectively. (v) After investigation challan was filed against the accused appellant, Rajendra Kumar and Mokham Ram in the court of learned Magistrate from where the case was committed to the Court of Sessions and the learned Additional Sessions Judge vide order dated 15.10.99 framed charges for offence under Section 302 and 323 I.PC. Against accused appellant Narendra Kumar and for offences under Sections 302/34 and 323 I.RC. against other accused Rajendra Kumar and Mokham Ram who denied the same and claimed trial. (vi) During trial statements of 12 witnesses were recorded on behalf of the prosecution and thereafter statements of accused persons under Section 313 Cr.RC. were recorded and three witnesses were examined in defence. (vii) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dated 30.8.2001 convicted and sentenced the accused appellant as stated above. (viii) After being aggrieved by the judgment and order dated 30.8.2001 the accused appellant has preferred the present appeal. 3. were recorded and three witnesses were examined in defence. (vii) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dated 30.8.2001 convicted and sentenced the accused appellant as stated above. (viii) After being aggrieved by the judgment and order dated 30.8.2001 the accused appellant has preferred the present appeal. 3. In this appeal, the learned counsel for the accused appellant has not challenged the finding recorded by the learned Additional Sessions Judge that the accused appellant gave one blow on the head of the deceased by iron pipe and since this finding has not been challenged, therefore, this finding of the trial court is liable to be confirmed one, but the learned counsel for the accused appellant has restricted his argument only to the one point that the present case is not a case of culpable homicide amounting to murder punishable under Section 302 I.P.C., but it is a case of culpable homicide not amounting to murder punishable under Section 304 Part II I.RC. as only one blow of iron pipe was given by him on the head of the deceased and at that time, there was no intention on the part of the accused appellant Narendra Kumar to murder the deceased as the dispute arose on spur of moment between RW. 1 Jagdish and accused appellant and thereafter when the dispute was going on, deceased intervened in the matter and therefore, in no case, intention could be gathered on the part of the accused appellant in murdering the deceased and only knowledge should have been inferred and thus, the accused appellant should have been convicted under Section 304 Part II I.RC. in place of Section 302 I.RC. 4. On the other hand, the learned PR has supported the judgment and order dated 30.8.2001 and submitted that the same are based on proper appreciation of evidence available on record and do not require any interference by this Court. 5. Heard and perused the record. 6. Before proceeding further, we would like to first see the medical evidence of this case which is found in the statement of RW. 11 Dr. Subhash Rajput and RW. 5 Dr. Ram Lal Beniwal. 7. RW. 11 Subhash Rajput examined the injuries of the deceased as well as RW. 1 Jagdish and their injury report is Ex.P/18 which was proved by RW. 11. 11 Dr. Subhash Rajput and RW. 5 Dr. Ram Lal Beniwal. 7. RW. 11 Subhash Rajput examined the injuries of the deceased as well as RW. 1 Jagdish and their injury report is Ex.P/18 which was proved by RW. 11. Subhash Rajput and as per the injury report Ex.P/18 P.W. 1 Jagdish and the deceased received following injuries :INJURIES OF DECEASED (i) Lacerated wound with dep. Fracture of bone 4" x 3/4" X bone deep on left parietal region vertically. (ii) abrasion 1/4" x 1/4" on left knee on palite laterally. INJURIES OF P.W. 1 JAGDISH (i) Lacerated wound 1 1/2" x 1/4" X 1/4" on inter parietal region. (ii) Bruise 1" x 1" on Rt. Maxille Upper region. 8. The deceased died on 8.4.99 and the post mortem of the body of the deceased was conducted by PW. 5 Dr. Ram Lal Beniwal who has proved the post mortem report Ex.P/7 and as per the post mortem report (Ex.P/7), following injuries were found on the body of the deceased : (i) Abrasion 1/4" x 1/4" on left knee (ii) Stitched wound 10" long on left side scalp middle part parietal area. 9. From the statement of PW. 5 Dr. Ram Lal Beniwal, it is proved : (i) That death of the deceased was homicidal. (ii) That deceased received two injuries and one of them was on the head and another injury was on knee and that was simple injury and that could be caused by fall of the deceased also. 10. Since in the present case RW. 1 Jagdish also received injuries, therefore, his presence on the spot cannot be doubted. From the statement of RW. 1 Jagdish, the fact that there was a dispute over the land between the complainant party and the accused party, is well established and it is also established that before the date of occurrence i.e. on 5.4.99, a dispute had arisen between them over the turn of water. From the statement of RW. 1 Jagdish, the fact that when he was going towards his Dhani, the accused appellant and two other accused persons, namely, Rajendra Kumar and Mokham Ram came there and abused him and thereafter the accused appellant gave one blow on the head of the deceased by iron pipe when he intervened in the matter is also well established. Thus, from the statement of PW. Thus, from the statement of PW. 1 Jagdish, it is clear that the accused appellant gave only one blow on the head of the deceased and because of that injury, the deceased died later on, on 8.4.99 though the incident had taken place on 6.4.99. Apart from this, there is no evidence to show that the accused appellant made an attempt to cause another injury on the person of the deceased. Upon these facts, the learned Additional Sessions Judge came to the conclusion that a case of culpable homicide amounting to murder punishable under Section 302 I.RC. was made out. 11. The question that arises for consideration is whether in the facts and circumstances just mentioned above, the findings of the learned Additional Sessions Judge that a case of culpable homicide amounting to murder punishable under Section 302 I.RC. has been made out or not or whether a i case of culpable homicide not amounting to murder punishable under Section 304 Part II I.RC. as alleged by the learned counsel for the accused appellant has been made out or not. 12. In our considered opinion, since there was a dispute over turn of water and way between the complainant party and the accused party and if i the accused appellant had given a blow by iron pipe on the head of the deceased, it cannot be inferred by that act that there was an intention on the part of the accused appellant to murder the deceased. The attack by the accused appellant cannot be termed as pre-meditated and pre-panned, but the alleged incident had taken place at the spur of moment and thus no intention on the part of the accused appellant to murder the deceased could be gathered. In other words, the element of intention to murder the deceased was missing on the part of the accused. Had there been intention to murder the deceased, accused appellant would have tried to give second blow to the deceased. Thus, it could be inferred that by giving one blow on the head of the j deceased, the accused appellant was having knowledge that this blow might be fatal and hence, for the reasons mentioned above, the act of the accused appellant would be covered by Clause IV of Clause 300 I.RC. dealing with knowledge and is punishable under Section 304 Part II I.RC. dealing with knowledge and is punishable under Section 304 Part II I.RC. and would not amount to culpable homicide amounting to murder punishable under Section 302 I.RC. 13. The following observations made by the Hon'ble Supreme Court in the case of State of U.P. v. Indrajeet @ Sukhatha (JT 2000(9) 426 ) would further strengthen the view taken by us : "Indian Penal Code, 1860 Sections 302, 304 Pt. II Murder -Accused, a Carpenter, entering into hut of victim at 4 A.M.-Armed with "Rukhani" an implement of carpentry-Only two injuries inflicted, out of which only one sufficient to cause death in normal course-Parents of deceased in hut-if murder with intention to kill. Held that there is no intention to kill and hence conviction from Section 302 to 304 Pt. II was rightly covered." 14. The Hon'ble Supreme Court in another case of K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309 also took the same view. In that case accused gave one blow to the deceased with knife and the Hon'ble Supreme Court came to the conclusion that by one blow there was no intention on the part of the accused to murder but he caused the injury with knowledge. Hence, in that case the accused was convicted under Section 304 Part II in place of Section 302 I.RC. In this respect, the following authorities of the Hon'ble Supreme Court may further be referred to: (i) Sarup Singh v. State of Haryana, AIR 1995 SC 2452 (ii) Ramesh Vithalrao Thakra v. State of Maharashtra, AIR 1995 SC 1453 (iii) Mavila Thamban Nambiar v. State of Kerala, AIR 1997 SC 687 . 15. We, therefore, hold that the accused appellant by causing one single injury on the head of the deceased in the present case, has not committed the offence of culpable homicide amounting to murder punishable under Section 302, but instead has committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part II I.P.C. and the findings and judgment of the learned Additional Sessions are liable to be altered accordingly to the above extent. However, conviction of the accused appellant for offence under Section 323 I.P.C. as recorded by the learned Additional Sessions Judge is to be maintained.ON POINT OF SENTENCE 16. However, conviction of the accused appellant for offence under Section 323 I.P.C. as recorded by the learned Additional Sessions Judge is to be maintained.ON POINT OF SENTENCE 16. It has been submitted by the learned counsel for the accused appellant that sentence of five years be awarded to the accused appellant if this Court comes to the conclusion that the accused appellant has committed offence punishable under Section 304(H) I.RC. He has further submitted that the Hon'ble Supreme Court as well as many High Courts have awarded sentence of five years for offence under Section 304(H) I.RC. 17. We have considered this argument. No doubt the Hon'ble Supreme Court as well as some other High Courts have awarded sentence of 5 years for offence under Section 304(H) I.RC., but it cannot be made a Rule of law that in every case where conviction is made under Section 304(H) I.RC., sentence of five years should be imposed because a question of sentence is matter of discretion and sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch and in awarding sentence, the court should take into consideration all relevant factors, including the age of the deceased as well as age of the accused and the circumstances in which offence was committed and in this case deceased was of young age and accused appellant is also of young age and if all the facts and circumstances are taken into consideration, in our opinion if the accused appellant is sentenced for 8 years' rigorous imprisonment with a fine of Rs. 2000/- for offence under Sections 304(11) I.RC. it would meet the ends of justice. For the reasons mentioned above, this appeal is partly allowed. The conviction of the accused appellant Narendra Kumar is altered from Section 302 I.RC. to Section 304 Part II I.RC. and he is accordingly convicted under Section 304 Part II I.RC. and for the said offence he is sentenced to 8 years' R.l. With a fine of Rs. 2000/- , in default of payment of fine to further undergo 1 month's R.l. However, conviction and sentence for offence under Section 323 I.P.C. as recorded by the learned Additional Sessions Judge, Nohar through judgment and order dated 30.8.2001 is maintained. and for the said offence he is sentenced to 8 years' R.l. With a fine of Rs. 2000/- , in default of payment of fine to further undergo 1 month's R.l. However, conviction and sentence for offence under Section 323 I.P.C. as recorded by the learned Additional Sessions Judge, Nohar through judgment and order dated 30.8.2001 is maintained. The judgment and order dated 30.8.2001 passed by the learned Additional Sessions Judge, Nohar stand modified accordingly to the above extent. *******