JUDGMENT 1. - This D.B. Criminal Appeal has been filed by the accused-appellant against the judgment and order dated 7.9.2002 passed by the learned Addl. Sessions Judge, Phalodi, by which he has convicted the accused-appellant under section 302 and sentenced him to imprisonment for life and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo six months' simple imprisonment. By the same judgment-Meere Khan, Idu Khan and Yarn Khan were acquitted of the charge under section 302 Indian Penal Code. Meere Khan was also acquitted for the charge under section 429 Indian Penal Code and by the same judgment he also convicted accused-Meere Khan, Idu Khan and Yaru under section 323 Indian Penal Code and sentenced them for the period already undergone. 2. It arises in the following circumstances : On 5.11.2001 at about 8.30 p.m., PW-4 Mohd. Tayab lodged a written report before PW-17 Roop Singh in the Police Station Jamba, District Jodhpur, inter alia stating that on 4.10.2001 in the evening at 5.00 p.m. his sheep had gone to the house of accused-Yarn Khan and the same was killed by another accused-Meere Khan by giving lathi blow and for that on the next day at about 9.00 a.m. when Mohd. Kasam (hereinafter referred to as 'the deceased') was going to the house of Yaru Khan for making complaint and was passing through the field of accused-Yarn Khan, accused-appellant-Ibrahim and other accused persons came there. It was further stated in the report of PW-4 Mohd. Tayab that thereafter accused-appellant gave a lathi blow on the head of the deceased, as a result of which deceased fell down. It was further stated that he was beaten by other accused persons also and that incident was witnessed by Sikandar (PW-1) - son of the deceased- Abdul (PW-2) - another son of the deceased and Bismillah (PW-5), the wife of-the deceased. 3. On that report, PW-17 Roop Singh registered the case and chalked out police FIR Ex.P/31 under sections 307 and 323 Indian Penal Code and started investigation. During the pendency of the investigation deceased died on 6.11.2001 in the hospital so the offence under section 307 Indian Penal Code was converted into Section 302 Indian Penal Code. 4. During investigation, post-mortem of the dead body of the deceased was got conducted by PW-18 Dr. V.K. Malhotra. The post- mortem report is Ex.P/32 dated 6.11.2001. During the pendency of the investigation deceased died on 6.11.2001 in the hospital so the offence under section 307 Indian Penal Code was converted into Section 302 Indian Penal Code. 4. During investigation, post-mortem of the dead body of the deceased was got conducted by PW-18 Dr. V.K. Malhotra. The post- mortem report is Ex.P/32 dated 6.11.2001. The accused-appellant was arrested on 6.11.2001 through Arrest Memo Ex.P/17. On 7.11.2001 accused-appellant gave an information Ex.P/25 for the recovery of lathi and the same was recovered on 8.11.2001 at the instance of the accused-appellant. The Fard Recovery of lathi is Ex.P/5 and the motbirs of that recovery are Aamdeen and Imam Khan. 5. After usual investigation, the police filed challan against four accused persons including the present accused-appellant before the Judicial Magistrate, Phalodi from where the case was committed to the Court of Addl. Sessions Judge, Phalodi. 6. The Addl. Sessions Judge, Phalodi, framed charges as follows:- Ibrahim - under Secs. 302 and 323/34 Indian Penal Code Meere Khan - under Sees. 302 and 323/34 Indian Penal Code Idu Khan - 302 and 323/34 Indian Penal Code Yaru Khan - 302 and 323/34 and under section 429 Indian Penal Code. All the accused pleaded not guilty and claimed trial. 7. In support of its case, the prosecution examined as many as 18 witnesses and got exhibited some documents. Thereafter, statement of the accused-appellant and other accused persons under section 313 Criminal Procedure Code were recorded on 7.8.2002. In defence, three witnesses were produced by the accused and some documents were also got exhibited. 8. After completion of the trial, the learned Addl. Sessions Judge, Phalodi has convicted and sentenced the accused-appellant as stated above inter alia holding that the prosecution has been able to prove the case against accused- appellant beyond reasonable doubt for offence under section 302. He has placed reliance on the statements of PW-1 Sikandar, PW-2 Abdul Karim, PW-3 Janu Khan and PW-4 Mohd. Tayab etc. etc. 9. Aggrieved by the said judgment and order dated 7.9.2002 passed by the learned Addl. Sessions Judge, Phalodi, the present appeal has been filed by accused-appellant-Ibrahim. 10. He has placed reliance on the statements of PW-1 Sikandar, PW-2 Abdul Karim, PW-3 Janu Khan and PW-4 Mohd. Tayab etc. etc. 9. Aggrieved by the said judgment and order dated 7.9.2002 passed by the learned Addl. Sessions Judge, Phalodi, the present appeal has been filed by accused-appellant-Ibrahim. 10. In this appeal, the learned counsel for the accused-appellant has restricted his argument only to one point that the present case is not a case of culpable homicide amounting to murder punishable under section 302 Indian Penal Code, but it is a case of culpable homicide not amounting to murder punishable under section 304 Part-II Indian Penal Code, as only one blow of lathi was given by him on the head of the deceased and the lathi itself cannot be regarded as a deadly weapon as lathi is generally kept by the villagers in their hands while moving. Thus, no case under section 302 Indian Penal Code should have been held to be proved and the accused-appellant should have been convicted under section 304 Part II Indian Penal Code in place of Section 302 Indian Penal Code. 11. On the other hand, the learned Public Prosecutor has supported the impugiied judgment and order dated 7.9.2002 passed by the learned Addl. Sessions Judge, Phalodi. 12. We have heard the learned counsel for the accused-appellant as well as the learned Public Prosecutor and gone through the record of the case. 13. Before proceeding further, we would like to first see the medical evidence of this case which is found in the statement of PW-18 Dr. Roop Singh, who conducted the post-mortem of the dead body of the deceased. 14. PW-18 Dr. Roop Singh has stated in his statement that on 6.11.2001 he was Medical Jurist at Mahatma Gandhi Hospital, Jodhpur where he conducted post-mortem of the dead body of the deceased and found following injuries:-, 1. Bruise : 6 cm x 4 cm on left temporal parietal region with defused swelling; 2. Bruise : 4 cm x 2 cm on left thigh ⅓rd lat. He also found fractures in temporal bones. He has proved his post-mortem report Ex.P/32. 15. From the statement of PW-18 Dr. Roop Singh, it is proved:- (1) That death of the deceased was homicidal. (2) That deceased received two injuries and one of them was on head. 16. Bruise : 4 cm x 2 cm on left thigh ⅓rd lat. He also found fractures in temporal bones. He has proved his post-mortem report Ex.P/32. 15. From the statement of PW-18 Dr. Roop Singh, it is proved:- (1) That death of the deceased was homicidal. (2) That deceased received two injuries and one of them was on head. 16. In this case, it maybe submitted here that as per the statement of the witnesses only the head injury was attributed to the accused-appellant. It may further be stated here that PW-1 Sikandar also received injuries in the scuffle and therefore since he was an injured, his presence on the scene of the occurrence cannot be doubted. He received three simple injuries which are mentioned in Injury Report Ex.P/14. A bare perusal of Ex.P/4 lodged by PW-4 Mohd. Tayab and from the statements of PW-1 Sikandar, PW-2 Abdul Karim. PW-4 Mohd. Tayab and PW-5 Bismilla it is also clear that one day before the incident the sheep belonging to deceased was beaten by lathi by one of the accused- Meere Khan,.which resulted in killing, and when deceased was going to raise his complaint, he was beaten. From the evidence on record, it is clear that accused-appellant gave only one lathi blow on the head of the deceased and because of that injury deceased died. There is no evidence to show that he tried to cause another injury by lathi. It is also not in dispute that incident took place on 4.11.2001 and deceased died in hospital on 6.11.2001. Upon these facts the learned Addl. Sessions Judge has come to the conclusion that a case of culpable homicide amounting to murder punishable under section 302 Indian Penal Code was made out. 17. The question that arises for consideration, looking and considering the above facts, is whether in the present case, the finding of the learned Addl. Sessions Judge that a case of culpable homicide amounting to murder punishable under section 302 Indian Penal Code is made out or not or whether a case of culpable homicide not amounting to murder punishable under section 304 Part II Indian Penal Code, as alleged by the learned counsel for the accused-appellant is made out or not. 18. Sessions Judge that a case of culpable homicide amounting to murder punishable under section 302 Indian Penal Code is made out or not or whether a case of culpable homicide not amounting to murder punishable under section 304 Part II Indian Penal Code, as alleged by the learned counsel for the accused-appellant is made out or not. 18. In our considered opinion, since there was a dispute over the killing of the sheep between complainant party and the accused party and if accused-appellant had given a lathi blow to deceased on head, 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 can not be termed as premeditated but the alleged incident took place at the spur of moment and there was no intention on the part of the accused- appellant to murder the deceased. 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, for reasons mentioned above, the act of the accused-appellant would be covered by Cl. IV of Cl. 300 Indian Penal Code dealing with knowledge and is punishable under section 304 Part II Indian Penal Code. 19. The following observations made by the Hon'ble Supreme Court in State of U.P. v. Indrajeet @Sukhatha, JT 2000 (9) 426 : 2000 Cr. L.R. (SC) 736 would further strengthen the view taken by us : "Indian Penal Code, 1860, Secs. 302,304 Pt. II - Murder-Accused, a Carpenter, entering into the hut of victim at 4.00 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." 20. The Hon'ble Supreme Court in the case of K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309 : 1999 Cr. L.R. (SC) 206 also took the same view. Held that there is no intention to kill and hence conviction from Section 302 to 304 Pt. II was rightly covered." 20. The Hon'ble Supreme Court in the case of K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309 : 1999 Cr. L.R. (SC) 206 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 accused was convicted under section 304 Part II in place of Section 302 Indian Penal Code. 21. 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 Indian Penal Code and the findings and judgment of the learned Addl. Sessions Judge are liable to be altered accordingly. 22. So far as the point of sentence is concerned, in- our opinion a sentence of 7 years rigorous imprisonment with a fine of Rs. 2,000/-, would meet the ends of justice if the accused is convicted for the offence under section 304 Part II.Thus, for the reason stated above, this appeal is partly allowed. The conviction of accused-appellant-Ibrahim is altered from Section 302 Indian Penal Code to 304 Part-II Indian Penal Code and for the said offence he is sentenced for seven years rigorous imprisonment with a fine of Rs. 2,000/-, in default of payment, to suffer six months further R.I. The judgment and order dated 7.9.2002 passed by the learned Addl. Sessions Judge, Phalodi stand modified to the above extent accordingly.Appeal partly allowed. *******