Honble SHARMA, J.–Calamity be-fell on the family of Jagdish Narayan, who lost his life in a trifle dispute. Badri Narayan, Rameshwar, Seeta Ram and Amar Lal @ Lal Chand, appellants herein, were put to trial for having committed murder of Jagdish Narayan, before learned Additional Sessions Judge (Fast Track) No.1, Jaipur City, who vide judgment dated August 18, 2003 convicted and sentenced them as under:- Badri Narayan U/s.302 and Rameshwar, Seeta Ram and Amar Lal @ Lal Chand u/s.302/34 IPC: Each to suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. (2). The prosecution story is woven like this:- Informant Mahesh Kumar (Pw.5), at SMS Hospital Jaipur handed over a written report (Ex.P-2) on January 13, 1996 at 6.15 PM to SHO Police Station Jamwa Ramgarh stating therein that on the said day around 8 AM his father Jagdish Narayan left home to go to the village and while he reached near the house of Rameshwar, Rameshwar started hurling abuses at him and demanded money, his father, in turn, asked for settlement of account. Thereupon Rameshwar started beating his father, meanwhile Badri Narayan also came over there and inflicted 6- 7 blows with Jelly on the head and other parts of body of his father. As a result of beating his father fell down and blood started oozing out from his nose, mouth and ears. Still all the four brothers and their ladies pelted stones. His elder brother Kanhaiya Lal was also beaten up by Badri Narayan who gave two blows on the waist of Kanhaiya Lal. His father, who was unconscious, was removed to hospital where he died during the course of treatment. On that report case under Sections 147, 148, 149, 302, 341/323, 356/504 IPC was registered and investigation commenced. During the course of investigation Jagdish Narayan succumbed to his injuries and Section 302 IPC was added. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed against the appellants only. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jaipur City. Charges under Sections 302 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jaipur City. Charges under Sections 302 and 302/34 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 27 witnesses. In the explanation under Sec.313 Cr.P.C., the appellants claimed innocence. One witness Jagdish Narayan Sharma (Dw.1) was examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. (3). We have heard rival submissions and scanned the material on record. (4). A look at Postmortem Report (Ex.P-8) demonstrates that the deceased had sustained following antemortem injuries:- 1. It defined swelling Lt. frontal Lt. prietal, Lt. temporal and upto infront of lt. ear with two lacerated wounds 0.3cm x 0.2cm x skin deep about 3cm infront of tragus of lt. ear and another of .5cm x 0.2cm x muscle deep about 3cm above the lacerated wound mentioned. 2. Bruise 3cm x 2cm lt. ear pinna posteriorly, oblique red colour. 3. Bruise 8cm x 3cm on left shoulder and adjacent arm laterally oblique red colour. 4. Abrasion 1cm x 0.8cm on lt. ring finger proximal phalynx dorsally. 5. Abrasion .8cm x 0.5cm on lt. ring finger proximal inter phalyngeal joint dorsally. 6. Abrasion 0.8cm x 0.5cm on back of chest lower 1/3rd in mid line. In the opinion of Dr. P.N. Mathur (Pw.22) the cause of death was head injury. (5). Dr.Ram Swaroop (Pw.7) however deposed that on January 13, 1996 one Shravan Lal requested him to treat his father who was beaten up by residents of Dhani. He acceded the request and proceeded to the house of injured. Finding his condition serious, he referred the injured to SMS Hospital Jaipur. In his cross examination he admitted that although it was a medicolegal case, he did not inform the police. (6). It is canvassed by learned counsel for the appellants that from holistic reading of the evidence it appears that genesis of the incident had been suppressed. The learned trial Court did not take note of the site-plan which shows that the house of Rameshwar (appellant) did not fall on the way of regular route. The deceased had arrived to the house for his own purposes. The learned trial Court did not take note of the site-plan which shows that the house of Rameshwar (appellant) did not fall on the way of regular route. The deceased had arrived to the house for his own purposes. According to learned counsel the conduct of two grown up sons of the deceased viz.Mahesh Kumar (Pw.5) and Kanhaiya (Pw.11) in not intervening while their father was waylaid and attacked, was highly unnatural. (7). Having scrutinised the entire material on record we notice that the prosecution case is founded primarily on the testimony of Sheopa Ram (Pw.1), Jagdish Narayan (Pw.4), Mahesh Kumar (Pw.5) and Kanhaiya Lal (Pw.11). Sheopa Ram (Pw.1) in his cross examination deposed that on the date of incident there was a scuffle between Rameshwar and Jagdish (deceased). He stated thus: ^^geus ns[kk fd jkesoj vkSj txnhk ds vkil esa ÖkxM+k gks jgk FkkA fQj buds vkil esa nksuksa ds ysok ns;h gks xbZA** Jagdish Narayan (Pw.4) also deposed that there was a quarrel and abuses were hurled. He stated thus:- ^^rc eSaus xkyh xykSp yM+kbZ ÖkxM+s dh vkokt lqudj tks vkokt cnzhukjk;.k] jkesoj] ykyk dh Fkh ftls lqudj cnzhukjk;.k jkesoj ds edku ds ikl x;k FkksM+h nsj buds xkyh xykSp gks jgk FkkA** He further deposed that Rameshwar inflicted lathi blow on the left temporal region of Jagdish:- ^^jkesoj us txnhk ds flj ij ykBh dh ekjh tks cka;h duiVh ij yxh FkhA** Informant Rameshwar (Pw.5) in his cross examination also stated that:- ^^okrkZyki gksrs gh esjs firkth vkSj jkesoj xqRFke xqRFkk gks x;s vkSj rku pkj dne pys--- jkesoj us tks ykBh dh ekjh oks esjs firkth ds flj esa cka;h rjQ yxhA cnzh ihNs ls vk;k vkSj ihNs ls gh esjs firkth ds flj esa pksV ekjh fdruh pksVsa ekjh ;g fxurh eSaus ugha dhA** Kanhaiya Lal (Pw.11) reached to the place of incident after the incident occurred. He stated that:- ^^eSaus gYyk lquk rks eSa Hkh ogka ij Hkkxdj x;k rks esjs firkth ogka ij [kM+s gq,s FksA muds cka;h rjQ flj ij pksV Fkh ukd] dku esa [kwu vk jgs FksA** (8). Fact situation that emerges from the material on record may be summarized as under:- (i) House of appellant Rameshwar did not fall on the way of regular route and deceased himself had arrived to the house of Rameshwar for his own purpose. (ii) Prior to incident deceased and appellant Rameshwar had altercations. Fact situation that emerges from the material on record may be summarized as under:- (i) House of appellant Rameshwar did not fall on the way of regular route and deceased himself had arrived to the house of Rameshwar for his own purpose. (ii) Prior to incident deceased and appellant Rameshwar had altercations. Both of them also had scuffle. (iii) There was no enmity between the appellants and deceased. The occurrence was a sudden affair on a dispute regarding money given on loan by Rameshwar to the deceased. (iv) Something which has not been completely unravelled might have sparked off the incident. (9). On a careful analysis of the evidence adduced at the trial it appears that in a sudden fight without any premeditation and in the heat of passion the appellant Badri Narayan inflicted blow with blunt weapon on the head of deceased. From the nature of injuries sustained by deceased, this possibility cannot be ruled out that all the three injuries on the left side of head could be the result of one blow. From the nature of injuries inflicted, appellant Badri Narayan should be presumed to know that his act of inflicting injuries would likely to cause death of Jagdish Narayan and he is found guilty for having committed culpable homicide not amounting to murder. So far as allegations against appellants Rameshwar, Seeta Ram and Amar Lal are concerned, we find that prosecution had failed to prove that they did share common intention. Although their presence at the spot is established, charge under Section 302/34 IPC could not be established against them beyond reasonable doubt. (10). A look at Section 304 IPC goes to show that in Pat I there is intention while in Part II there is only knowledge and intention is expressly excluded. Section 304 Part I covers cases which by reason of the exception under Section 300 IPC are taken out of the purview of Section 300 clauses 1, 2 and 3 but otherwise would fall within it and also cases which fall within second part of Section 299 but not within Section 300 clauses 2 and 3. (11). Part II of Section 304 IPC covers cases falling within third part of Section 299 and not falling within 4th clause of Section 300 IPC. (11). Part II of Section 304 IPC covers cases falling within third part of Section 299 and not falling within 4th clause of Section 300 IPC. Part II of Section 304 will not apply if the Court comes to the conclusion that that the intention of the person causing death was either to cause death or to cause such bodily injury as will bring the case either under Part I of Section 304 or under Section 302. In case the Court comes to the conclusion that there was no intention of any of the kinds mentioned above, but there was knowledge that the act was likely to cause death, the offence will fall under Part II of Section 304 only if the Court finds that the offender did not know that the act was imminently dangerous that it must, in all probability cause death or such bodily injury as was likely to cause death and the offender had not committed the act without any excuse for incurring the risk of causing death or the bodily injury. But if the Court is unable to come to such finding, the offence would still be be murder unless an exception to Section 300 be applicable. (12). In the ultimate analysis, we find appellant Badri Narayan guilty under Part II of Section 304 IPC. So far as charge under Section 302/34 IPC against appellants Rameshwar, Seeta Ram and Amar Lal @ Lal Chand is concerned it appear to us that while appellant Rameshwar and Jagdish (deceased) had grappeled each other, Badri Narayan inflicted blow with blunt weapon on the head of Jagdish and that proved fatal. In these circumstances charge under Section 302/34 IPC is not made out against Rameshwar, Seeta Ram and Amar Lal @ Lal Chand and they are entitled to benefit of doubt. (13). For these reasons, We dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of Badri Narayan and instead of Section 302, we convict him under Section 304 Part II IPC. Looking to the fact that the appellant has already undergone confinement for a period of more than five years and eleven months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Looking to the fact that the appellant has already undergone confinement for a period of more than five years and eleven months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Appellant Badri Narayan, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We allow the appeal of Rameshwar, Seeta Ram and Amar Lal @ Lal Chand and acquit them of the charge under Section 302/34 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (iii) The impugned judgment of learned trial Court stands modified as indicated above.