S. L. KOCHAR, J. ( 1 ) BY this appeal the appellant seeks to quash the judgment of conviction and sentence passed by the sessions Judge, Shajapur in Sessions trial No. 123/04 passed on 5-3-2005 thereby the learned trial Court finding the appellant guilty of the offence punishable under section 302, Indian Penal code and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine, to suffer RI for three months. ( 2 ) BRIEFLY stated the prosecution case as un-folded before the trial Court is that on 4-6-2004 in the night at 10. 15 pm in Village Mohan-Badodia complainant Dharmendra was selling countrymade liquor in Government Shop as salesman. From outside the shop 3-4 customers were demanding liquor. At that ture, Dharmendra saw that deceased bablusingh and appellant Murli under influence of liquor abusing each other for 10 rupees. Deceased Bablusingh was demanding 10 rupees from appellant and told him that so many days had elapsed, now appellant should pay his borrowed amount. At that juncture, appellant murli Dhobi picked up empty bottle and threw towards Bablusingh which hit on his head. Bablusingh fell down on the ground. Complainant salesman Dharmendra closed the shop and reached near bablusingh. He and one Vishnu tried to serve water but, they found him dead. On the spot Shiv Forester also reached and appellant fled away from the spot. Dharmendra lodged the report of the incident on 4-6-2004 in the night at 11 PM in Police Station Moian-Badodia on the basis of which, Crime No. 89/04 for the offence punishable under section 302, indian penal Code was registered against the appellant. During the course of investigation, inquest proceeding was performed and thereafter dead body of bablusingh was sent to hospital for postmortem examination PM was conducted by Dr. (PW10) Sanjeev Sharma who noted following four injuries on external part of the deceased. 1) One bruise on the neck 4x4 cm. 2) Lacerated wound 1/2x1/4 cm skin deep on left side of forehead. 3) Abrasion 1-1/2 x 1/2 cm below injury No. 2. 4) Lacerated wound lxl/4 cm over left parietal bone upto bone deep. There was fracture of the bone underneath the injury. The fractured pieces of bone pierced into brain. Deceased died because of head injury due to Cardio Respiratory Fail-juncure. Death was homicidal in nature. 3) Abrasion 1-1/2 x 1/2 cm below injury No. 2. 4) Lacerated wound lxl/4 cm over left parietal bone upto bone deep. There was fracture of the bone underneath the injury. The fractured pieces of bone pierced into brain. Deceased died because of head injury due to Cardio Respiratory Fail-juncure. Death was homicidal in nature. ( 3 ) AFTER due investigation, charge sheet was filed. The appellant abjured the guilt and pleaded innocence. He examined in the defence, witness Bhimsinuh kushwaha as (DW1 ). ( 4 ) THE learned trial Court after evaluating the prosecution and defence evidence, convicted the appellant as mentioned hereinabove. ( 5 ) THE learned Counsel for the appellant has not disputed the homicidal death of the deceased. Even otherwise, in view of the eye witness account and medical evidence of Dr. (PW10) Sanjeev sharma, deceased died because of the head injury and death was homicidal in nature. In cross-examination he has specifically stated that the injury on head could be caused by throwing empty glass bottle. This witness was cross-examined by defence in detail but nothing favourable could be elucidated. The learned Counsel has submitted only point for consideration that even if the complete prosecution case is admitted, offence at the most would fall under section 304 Part-II of the Indian Penal Code because, appellant and deceased were friends and at the time of incident, both were under the influence of liquor. The dispute arose ail of a sudden when deceased demanded 10 rupees which he owed from appellant. Both exchanged abuse and thereafter all of a sudden, appellant picked up an empty liquor bottle and threw it towards deceased which unfortunately hit on vulnerable part of the body like head resulting into his death. ( 6 ) THE learned Counsel for the state has submitted that the impact, and nature of the injury is showing the force used by the appellant while throwing the empty bottle. He threw the same with intent to commit murder of deceased. According to learned Counsel for the state, appellant has rightly been convicted for commission of murder of deceased Bablusingh. ( 7 ) HAVING heard the learned Counsel for the parties and after perusing the entire record, we are of the considered view that looking to the statement of eye witnesses (PW1) Dharmendra Kumar and (PW6) Vishnu as well as the medical evidence of (PWIO) Dr. ( 7 ) HAVING heard the learned Counsel for the parties and after perusing the entire record, we are of the considered view that looking to the statement of eye witnesses (PW1) Dharmendra Kumar and (PW6) Vishnu as well as the medical evidence of (PWIO) Dr. Sanjeev Sharma, who performed the autopsy, the appellant is the author of the injuries sustained by the deceased because of which deceased succumbed. But, in the backdrop of the incident, it could not be saud that appellant threw empty liquor bottle with an intention to commit murder of deceased. It was his spontaneous act and out of anger, he picked up the bottle threw the same without aiming at any particular part of the body. Deceased and appellant appear to be friends and they were having relation to part money deceased demanded his 10 rupees over which, both abused each other and thereafter, suddenly appellant picked up the bottle lying nearby and threw the same which hit on the head of the deceased. Autopsy Surgeon (PWIO) Sanjeev Sharma in paragraphs 12 and 13 has deposed that the injury by hitting the glass bottle on the head could be caused. According to him, deceased died because of heart and respiratory failure due to injury to brain. This is true that this witness has not opined that injury No. 4 was sufficient in ordinary courses of nature to cause death but according to us, the injury was sufficient in ordinary course of nature to cause death but the appellant did not intend to cause particular injury No. 4 on a particular part of the head of the deceased. ( 8 ) THE injury Nos. 1, 2 and 3 could be caused by fall on the ground. The eye witnesses, account is showing that the deceased was under the influence of liquor therefore, after receiving the injury by hitting of bottle on his head, he must haw fallen on the ground and because of which sustained bruise, abrasion and one lacerated wound. All these three injuries were simple in nature. He simply picket up the bottle, and at randomly threw it at the deceased which hit on his head and damaged the parietal bone and the pieces of bone pierced in the brain, resulting into his death. All these three injuries were simple in nature. He simply picket up the bottle, and at randomly threw it at the deceased which hit on his head and damaged the parietal bone and the pieces of bone pierced in the brain, resulting into his death. ( 9 ) IN these circumstances, we are of the view, that appellant was not having intention to commit murder of the deceased. He had also not intended to cause a particular kind of injury on the head which could result into death of deceased but he (could be attributed with knowledge that his act of throwing bottle could hit on any vital part of the deceased specially, like head and deceased may die as result of the injury. Therefore, the appellant could be liable for commissions of culpable homicide not amounting to murder, punishable under section 304 (Part-II of the Indian Penal Code ). ( 10 ) CONSEQUENTLY, the appeal of the appellant is allowed in part. His conviction and sentence under section 302, indian Penal Code as mentioned herein-above are, hereby, set-aside. Instead he is convicted under section 304 (Part-II)of the Indian Penal Code and is sentenced to Rl for 5 years with fine the Rs. 1,000/- as imposed by the Trial Court in default of payment of fine, to suffer additional RI for three months. Appeal allowed in part. .