ABHAY K. GOHIL, J. ( 1 ) VIDE Judgment dated 26. 8. 2002 passed by Additional sessions Judge, Sironj, District Vidisha, in sessions Trial No. 134/94 both the appellants have been convicted under sections 302/34 and 323/34 IPC, and sentenced to life imprisonment with fine of rs. 2000/- each and 6 months R. I. and fine of Rs. 1,000/- each, respectively. In this appeal both the appellants have assailed the judgment of the trial Court. ( 2 ) PROSECUTION story, as incorporated in the FIR, is that the residential house of Aziz Khan s/o Chhotekhan is near the house of Mohsin-acquitted accused. It was alleged in the report that on 7. 11. 92 at about 7. 30 p. m. Aziz Khan was standing in front of his house. At that time, Chandkhan s/o Bannekhan armed with farsa, Mohsil armed with farsa, yusufkhan (tried by Juvenile Court)armed with lathi and Naseem armed with lathi came there and shouted that kadma would not be spared. Apprehending that a quarrel may not take place with jalal, the witness went behind the house of Chandu Tailor and noticed that 4 accused persons surrounded Jalal and chandkhan s/o Bannekhan inflicted farsa blow to the deceased hitting him on the side of upper ear. Mohsin is also said to have given farsa blows. Yusuf and naseem also gave lathi blows in the legs of Jalal. Hearing the noise Abid son of deceased came there and he was also beaten by Yusuf. In the meantime another Chandkhan came there and he was caught hold by the witness and after beating accused persons ran away from the spot. The FIR of the incident was lodged by Aziz Khan (PW11 ). Jalal was taken to hospital by Dinbhai (acquitted accused ). Crime was registered, matter was investigated and after investigation chargesheet was filed. ( 3 ) DURING trial prosecution examined as many as 13 witnesses; out of which PW1 to 6, PW 11 and PW 13 have not supported the prosecution and were declared hostile. Learned trial Court placing reliance on the evidence of Abid Khan (PW7) who is the son of deceased and anisha Bee (PW8) wife of the deceased coupled with the medical evidence of Dr. Learned trial Court placing reliance on the evidence of Abid Khan (PW7) who is the son of deceased and anisha Bee (PW8) wife of the deceased coupled with the medical evidence of Dr. S. S. Thakur (PW10), convicted the appellants and sentenced them as aforesaid, but acquitted three other accused persons, namely, Mohsin Khan, Din mohammad and Chandkhan, against which the State has not preferred any appeal, and the convicted appellants have preferred this appeal. ( 4 ) AT the outset, learned counsel for the appellants submitted that he shall not challenge the participation of the appellants in the commission of crime but he shall only challenge the conviction of the appellants under Section 302 ipc. His submission is that this is a case of single fatal blow and according to the findings recorded by the trial Court, the same has been attributed to accused chandkhan S/o Bannekhan. He has also submitted that as per medical evidence, though the doctor has found injury no. (i)as fatal and dangerous to life, but there is no evidence that the said injury was sufficient to cause death in the ordinary course of nature although the deceased died within three hours. His further contention was that the other injuries which were four in number were not fatal and they were superficial in nature. The contention of the learned counsel for the appellants is that if the evidence of Abid khan (PW7) and Anisha Bee (PW8) is not reliable as they were not present on spot and had not seen the incident but even if it is relied, at the most the case will fall within the purview of Section 304 Part ii, IPC. It is further submitted that the deceased Jalalkhan was a person of criminal background. He was behaving like a gangster in the area and was involved in several criminal activities. The deceased is also related with the appellants. The incident took place because the deceased Jalal Khan wanted to part the land in favour of one brother discriminating with other, whereas Ishaqkhan (PW13) who is the brother of the deceased, was claiming the land and the accused persons are the brother-in-law of Ajiz khan (PW11 ). Therefore, it was argued that their relations were inimical. Learned counsel for the appellants also argued that the evidence of Abid Khan (PW7) and Anisha Bee (PW8) is not reliable being interested witnesses. Therefore, it was argued that their relations were inimical. Learned counsel for the appellants also argued that the evidence of Abid Khan (PW7) and Anisha Bee (PW8) is not reliable being interested witnesses. At the time of incident they were inside the house and they have not seen the assailants but, in the end, learned counsel for the appellants submitted that he would only submit that looking to the medical evidence it is a case of single fatal blow and there was no evidence of premeditation or intention to kill or that the blow was repeated. It is further submitted that he has no objection for the enhancement of the fine amount. In reply, Shri MPS bhacloriya, learned Government Advocate supported the judgment. ( 5 ) AFTER hearing and considering the rival submissions advanced by the learned counsel for the parties, we are of the view that the case will not fall within the definition of "murder" u/s. 300 of Indian penal Code and conviction under s. 302 is liable to be set aside. Instead, the appellants are liable to be convicted under Section 304 Part II, IPC. ( 6 ) WE have perused the evidence on record. Jabbarkhan (PW1) and Munna (PW2) are the witnesses of spot-map Ex. P/1. Munna (PW2) has admitted that his signatures were obtained on documents at the Police Station. Gulamkhan (PW3 ). Raja Miyan (PW4) and Umrao Bee (PW5)have not supported the prosecution and they were declared hostile. Their evidence is also not of any use to the prosecution. Rahimuddin (PW6) is the witness of Panchayatnama Lash (Ex. P/2), memorandum (Ex. P/3, P/4 and P/5 ). Though he states that in his presence his signatures were obtained on the aforesaid documents by the police but he is not aware of the contents of the aforesaid documents. Abid All (PW7) is the son of the deceased and Anisha Bee (PW8) is the wife of the deceased. They have supported the prosecution. They were put to lengthy cross-examination. Their presence cannot be doubted merely on the ground that they were inside the house because the incident took place in the same Mohalla just at a close distance of their house. They both have stated that after hearing the noise they came out and had seen the assailants. They have supported the prosecution. They were put to lengthy cross-examination. Their presence cannot be doubted merely on the ground that they were inside the house because the incident took place in the same Mohalla just at a close distance of their house. They both have stated that after hearing the noise they came out and had seen the assailants. Both have stated that Chandkhan inflicted farsa blow on the head of the deceased and Naseem gave lathi blow on the body of the deceased. From their evidence it is also clear that the deceased and accused persons are closely related to each other and there was some dispute with the deceased on the ground of parting of the land in favour of one brother of the deceased. Khalik Khan (PW9) is the another son of the deceased, who was not present at the place of occurrence, but he was crossexamined to prove the enmity between the parties. Aziz Khan (PW11) is the witness, who has lodged FIR. He is also the cousin of the deceased and is distantly related to him and Ishaq Khan (PW13) is the real brother of the deceased, but both have narrated different versions than the FIR version, therefore, they both were declared hostile. Their contention is that fatal blow was given by appellant chandkhan on the head of the deceased by lathi. It appears that both the real brother and cousin brother have not supported the prosecution story and they stated that it was Jalalkhan who was abusing and there was altercation between the accused persons and Jalalkhan and Jaialkhan fell down after receiving the lathi blow on the head at a bakhar (one agricultural equipment being used to plough the land annexed with the iron plate, one side of which was sharp) and received the injury in the head. ( 7 ) DR. S. S. Thakur (PW10) had examined abid Khan (PW7), who received one contusion towards the left side of stomach and he had also performed postmortem of the dead body. According to the post-mortem report, which is Ex. P/10, the deceased received following injuries: - (i) Incised wound size 6" x 1/2" x bony deep brain matters came out, margin clean cut over right side temp, region of skull to zygomatic region of face just front of right ear of lobule. Clotted blood. According to the post-mortem report, which is Ex. P/10, the deceased received following injuries: - (i) Incised wound size 6" x 1/2" x bony deep brain matters came out, margin clean cut over right side temp, region of skull to zygomatic region of face just front of right ear of lobule. Clotted blood. (ii) Brouise, size 2" x 2" over left hand radish in colour bony deformity present over left index finger. (iii) Lacerated wound size 1" x 1/4 x 1/4 over left leg upper ant. aspect irregular margin, clotted blood. (iv) Lacerated wound size 1 -1 / 2" x 1/4" x 1/2" over upper 1/3rd, right leg ant. aspect irregular margin, clotted blood. (v) Lacerated wound size 1/2" x 1/4" x 1/4" over right leg just below the injury no. (iv) irregular margin clotted blood. " as per medical report, injuries to injured witness Abid Khan (PW7), who is son of the deceased, were simple in nature. Except injury no. (i) other injuries of the deceased were also simple in nature but the doctor has stated that injury no. (i) was dangerous to life. Cause of death was coma because of head injury. The duration was within 18 hours, but the doctor has not specifically stated that the said injury no. (i)was sufficient to cause death in the ordinary course of nature. ( 8 ) THUS, in the background of the aforesaid evidence on record, the foremost question before us is not that the appellants are the assailants but the question before us for consideration is whether looking to the single fatal blow on the head of the deceased, the case will fall within the purview of Section 302 IPC. ( 9 ) IT is true that the incident took place because deceased Jalal started abusing and he was a person of criminal background and people were having fear of him. Two important witnesses, is own real brother Ishaq Khan (PW13) and cousin brother Aziz Khan (PW11) have not supported the prosecution. It is also true that there is no opinion of the doctor that the injury no. (i) was sufficient to cause death in the ordinary course of nature. Two important witnesses, is own real brother Ishaq Khan (PW13) and cousin brother Aziz Khan (PW11) have not supported the prosecution. It is also true that there is no opinion of the doctor that the injury no. (i) was sufficient to cause death in the ordinary course of nature. The Supreme Court has repeatedly held in catena of decisions regarding single blow injury, which ultimately proved to be fatal that no intention to kill can be inferred and in a number of cases the supreme Court has altered the conviction from Section 302 to Section 304 Part ii of Indian Penal Code. In case of Hari ram v. State of Haryana, AIR 1983 SC 185 . which was a case of single blow dealt in heat of altercation, it was found that there was no intention to kill and the conviction was altered from section 302 to 304 Part I. In case of Pularu v. State of M. P. , AIR 1993 SC 1487 . single blow injury was inflicted by tabbal mat is a blunt agricultural equipment, which is not a deadly weapon and it was found that the intention was not to cause death of deceased by invoking Clause (1) of Clause (3) of section 300 and conviction was converted to one under Section 304 Part II, ipc. In the case of Panchaiah and others v. State of Kamataka, AIR 1994 SC 963 . question of only one injury caused by cycle chain on the head of the deceased which was found to be serious was considered and it was held that there was no intention to cause death and the conviction was altered and in case of K. Ramakrishnan Unnithan v. State of Kerala', AIR 1999 SC 1428 . which was also a case of single blow by the accused, which was quite severe as a result of which intestine of deceased was cut and protruded. It was held that since there was no animosity towards deceased, altercation with son of deceased and the scenario at time of occurrence not showing that he had intention or requisite knowledge to cause murder, the accused did not commit offence under Section 300 but under section 304 Part II. In case of Camilo v. State of Goa, AIR 2000 SC 1374 . In case of Camilo v. State of Goa, AIR 2000 SC 1374 . accused hit victim with danda on vital part of body namely head with force causing his death unknowingly that. it was likely to cause death, it was held that the case would fall under Part ii of Section 304 IPC and conviction was altered. In case of Masumsha Hasanasha musalman v. State of Maharashtra, AIR 2000 SC -1876. again the Supreme Court has held that the accused gave only one blow by sharp edged weapon which resulted in the death of deceased, other injuries were caused to deceased due to scuffle. Circumstances showing that accused had no intention to kill deceased. The offence would be culpable homicide not amounting to murder under Section 304 Part II. ( 10 ) IF the present case is considered in the light of the aforesaid decisions of the Supreme Court, it would show that the appellants caused single injury on me head of the deceased by farsa, which is a sharp edged weapon, but unfortunately Aziz Khan (PW11) and Ishaq khan (PW13) have stated that he gave lathi blow on the head of the deceased. Even after considering this contradictory evidence it has to be taken into consideration that it is a case of single farsa blow inflicted by only appellant chandkhan and appellant Naseem inflicted only lathi blow on the non-vital part of the body and in the absence of this evidence that tne injury no. (i) was sufficient to cause death in the ordinary course of nature and also looking to the various other circumstances like that the accused as well as the deceased are close relatives and the deceased was a person of criminal background and the incident started because of the abuses made first by deceased himself, we find that the case will not fall within the purview of Section 300 IPC but it will fall under Section 304 Part II, culpable homicide not amounting to murder. ( 11 ) CONSEQUENTLY, appeal is partly allowed. Conviction of appellants under section 302/34 IPC is set aside and instead they are convicted under Section 304 Part-II, IPC, but their conviction under Section 323/34 IPC is affirmed. Appellant no. 1 Chandkhan has already suffered jail sentence of more than 4 years and appellant no. 2 Naseem has already suffered 9 months and 15 days. Conviction of appellants under section 302/34 IPC is set aside and instead they are convicted under Section 304 Part-II, IPC, but their conviction under Section 323/34 IPC is affirmed. Appellant no. 1 Chandkhan has already suffered jail sentence of more than 4 years and appellant no. 2 Naseem has already suffered 9 months and 15 days. Therefore, they may be released on undergone jail sentence on the condition of depositing the enhanced amount. The total fine amount against appellant no. 1 Chandkhan is enhanced from Rs. 3,000/- to rs. 25,000/- (Rupees Twenty five thousand) as well as that of against appellant no. 2 Naseem is enhanced from Rs. 3,000/- to Rs. 15,000/- (Rupees Fifteen thousand ). Out of the said amount so deposited, a sum of Rs. 40,000/- (Rupees forty thousand) be paid to the widow of the deceased Jalal Khan. On failure to deposit the fine amount within a period of ninety days from today, the appellant shall undergo further jail sentence of three years. Appellant no. 1 is in jail. He be released on depositing the fine amount. Appellant no. 2 is on bail. His bail bonds and surety bonds be discharged, appeal partly allowed. .