JUDGMENT [P.R. BORKAR, J.] :- 1. This is an appeal filed by original accused No.1 being aggrieved by order of conviction and sentence passed by the Additional Sessions Judge, Nandurbar, in Sessions Case No. 49 of 2004 decided on 14.02.2007, whereby the appellant was convicted of offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for one year. 2. Briefly stated facts giving rise to this appeal may be stated as below:- . P.W.2-Tulshiram Konkani has his land adjacent to the land of his brother - Isaram. Prior to the incident in question, quarrels had taken place over boundary bund between P.W.2-Tulshiram and sons of his brother Isaram. Chaitram is the father of the appellant and brother of Tulshiram and Isaram. There are two more brothers. On the day of incident i.e. on 07.10.2004 at 6.30 a.m. there was quarrel between Tulshiram and his son Rupchand on one side and original accused Nos. 1 to 6 on the other. Accused were appellant Suresh, Punya, Rohidas, Bhavaji, Vikram and Chaitya Konkani. Initial exchange of words aggravated in to a scuffle. At that time Janglu Konkani (P.W.3) and Parubai (P.W.11) Konkani intervened and tried to stop the quarrel. However, the quarrel did not stop and again over the land dispute there was exchange of words and fighting continued. At that time the appellant gave blow with a yoke (Dussar) of bullock-cart which was lying there on the head of Rupchand. As a result, Rupchand was injured. Thereafter, Rupchand was first taken to the Government Hospital at Nawapur. While at the hospital P.W.2-Tulshiram lodged complaint (Exh.66). On the advice of doctor, Rupchand was taken to a private hospital at Dhule. On the next day Rupchand died. 3. Police investigated the case. They attached yoke in question. They recorded statements of various witnesses. Ultimately charge-sheet was sent to the Court. 4. The prosecution in all examined 13 witnesses. Relying on their evidence the learned Additional Sessions Judge, Nandurbar, convicted the appellant alone of offence punishable under Section 302 read with Section 34 of the I.P.C. As per the order, Appellant-Suresh was acquitted of the offences punishable under Sections 143, 147, 148, 149, 504 and 506 of the I.P.C. Out of fine amount, an amount of Rs. Relying on their evidence the learned Additional Sessions Judge, Nandurbar, convicted the appellant alone of offence punishable under Section 302 read with Section 34 of the I.P.C. As per the order, Appellant-Suresh was acquitted of the offences punishable under Sections 143, 147, 148, 149, 504 and 506 of the I.P.C. Out of fine amount, an amount of Rs. 8000/- was ordered to be paid to complainant - Tulshiram as compensation under Section 357 (1) (c) of the Cr.P.C. Remaining accused were convicted of the offence punishable under Section 324 read with Section 34 of the I.P.C. and they were released on probation. However, each of original accused Nos. 2 to 6 was directed to pay compensation of Rs.1000/- to complainant - Tulshiram. We do not find order of acquittal or conviction of accused Nos. 2 to 6 for remaining offences with which they were charged. 5. At Exh.41 there is charge against all six accused and the charges against all the accused are under Sections 143, 147 read with 149, 148 read with 149, 302 (simplicitor), 504 (simplicitor) and 506 (simplicitor). It is unfortunate that the learned Additional Sessions Judge did not apply his mind while framing charge. Section 143 of the I.P.C. is an offence of being member of unlawful assembly. Offences under Sections 146 and 147 of the I.P.C. are as follows:- "146. Rioting - Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. 147. Punishment for rioting - Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 6. The offence under Section 147 of the I.P.C. is an individual offence and each member is guilty of offence of rioting if conditions of Section 146 of the I.P.C. are fulfilled. In fact offence under Section 147 of the I.P.C. is aggravated form of the offence punishable under Section 143 of the I.P.C. 7. Section 148 of the I.P.C. is as follows:- "148. Rioting, armed with deadly weapon. In fact offence under Section 147 of the I.P.C. is aggravated form of the offence punishable under Section 143 of the I.P.C. 7. Section 148 of the I.P.C. is as follows:- "148. Rioting, armed with deadly weapon. - Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." Thus offence under Section 148 of the I.P.C. is also an individual offence by a member of guilty of rioting, who is armed with deadly weapon or with anything which, used as weapon of offence, is likely to cause death. So, there could not have been charge under Section 147 read with Section 149 or under Section 148 read with Section 149 of the I.P.C. 8. Section 149 of the I.P.C. is as follows:- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." So, it is clear that under this section every member of unlawful assembly is constructively held guilty of offence which is committed in prosecution of common object of the assembly or when offence is such that members of the assembly knew to be likely to be committed in prosecution of the common object. So, this Section puts vicarious liability on every member of unlawful assembly and hold him guilty of any offence which is committed in prosecution of common object or when such member knew it to be likely to be committed in prosecution of the common object. 9. So, this Section puts vicarious liability on every member of unlawful assembly and hold him guilty of any offence which is committed in prosecution of common object or when such member knew it to be likely to be committed in prosecution of the common object. 9. Here in the present case there is no charge under Section 302 read with Section 34 or under Section 302 read with Section 149 of the I.P.C. Though as per prosecution case one blow with yoke was given by accused No.1 to deceased Rupchand, which proved to be fatal & no other accused gave blow which resulted in death, it is difficult to know why the learned Additional Sessions Judge has framed charge of committing the offence punishable under Section 302 of the I.P.C. individually against all the accused. Similarly, he has charged all six accused of committing individual offences under Sections 504 and 506 of the I.P.C. There is no appeal filed by original appellant Nos. 2 to 6, but, fact remains that there was no charge against original accused Nos. 2 to 6 for committing offence under Section 324 read with Section 34 of the I.P.C. Be that as it may. 10. In this case P.W.8-Dr. Sunita Patil, who is examined at Exh.82, stated that on 07.10.2004 when she was working as the Medical Officer at Nawapur Sub-District Civil Hospital, one Rupchand Tulshiram Konkani was admitted by his father. Rupchand was in unconscious state. He was vomiting blood. Blood was oozing from his nose and mouth. He had grievous injury of 6 cms x 2 cms x 2 cms deep. The injury was bone deep. The patient was admitted at 7.20 a.m. History of assault at 6 a.m. was given. Within ten minutes she referred the patient to the Civil Hospital, Dhule. The doctor proved medical certificate at Exh.83. The doctor said that the injury was possible with article No.4-wooden loft. It is in fact a yoke called "Dussar" in local language. The doctor denied in cross-examination that the injury is possible if a person is pushed from front side and falls on back side of his head on the road or on metal spread on the road. 11. P.W.9-Dr. It is in fact a yoke called "Dussar" in local language. The doctor denied in cross-examination that the injury is possible if a person is pushed from front side and falls on back side of his head on the road or on metal spread on the road. 11. P.W.9-Dr. Pathak examined at Exh.85 performed post mortem examination on the dead body of Rupchand on 09.10.2004 between 7 a.m. to 8 a.m. He found following four injuries on the person of the deceased:- (1) Stitched wound present over posterior aspect of scalp in right occipital region, horizontally situated of size 2 cms. x 0.25 cm. situated 5.5 cms. away from midline. On opening stitches, no evidence of infection seen. Injury was bone deep. (2) Contusion of size 1 cm. x 1 cm. present 2 cms medial to injury No.1, reddish brown in colour. (3) Contusion of size 2 cms. x 1.5 cms. present medially and posteriorly, 2.5 cms. to injury No.1, reddish brown in colour. (4) Contusion present over right fronto parietal region of size 6 cms. x 7 cms., reddish brown in colour. 12. According to the doctor the injuries were antemortem caused within 24 to 48 hours before death. On internal examination the doctor found underscalp haematoma, reddish brown in colour, present over frontal, both parietal and occipital regions and depressed fracture over right occipital region of skull, circular of size 3.5 cms. x 4 cms., consistent with injury No.1 mentioned in column No.17. There was evidence of infiltration and extravasation of blood in fracture line present. The cause of death was head injury. The injury was sufficient to cause death in the ordinary course of nature. The doctor proved P.M. notes at Exh.86. The doctor also stated that external injuries so also internal damage were sufficient to cause death of a person in the ordinary course of nature, if blow was given with article 4 - yoke. The doctor denied that injury Nos. 1 to 4 were possible by fall on hard surface. 13. P.W.1-Bharat Konkani proved spot panchanama (Exh.63) and it shows that spot was shown by P.W.2-Tulshiram, who is complainant. The incident had taken place in front of house of Tulshiram, where there was cement concrete road of 10 feet width. Some bloodstains were seen and sample of the same was taken. The panch also proved panchanama of seizure of clothes of deceased at Exh.64. 14. The incident had taken place in front of house of Tulshiram, where there was cement concrete road of 10 feet width. Some bloodstains were seen and sample of the same was taken. The panch also proved panchanama of seizure of clothes of deceased at Exh.64. 14. P.W.4-Gulab Konkani proved arrest panchanama of the accused. The accused was arrested on 07.10.2004. On the shirt on the person of the accused there were bloodstains. It was attached. The witness did not support the panchanama regarding discovery of yoke by the accused. 15. Ocular evidence consists of evidence of P.W.2-Tulshiram, P.W.3-Janglya Konkani and P.W.11-Parubai Konkani. P.W.12-Utrya Konkani has turned hostile. P.W.2-Tulshiram stated that over the boundary bund quarrel had occurred and during quarrel appellant-Suresh Konkani had given blow with a yoke on the head of Rupchand. He further stated that then Rupchand was taken to the Government Hospital. He proved his complaint at Exh.66. He further said that Rupchand was first taken to Nawapur hospital and then he was taken to private hospital at Dhule, where he died. In cross-examination P.W.2-Tulshiram admitted that he had four brothers. They are Chaitram, Isaram, Bhauji and Utarya. They had ancestral property. Partition had taken place between the brothers. Land of Isaram was cultivated by his sons. There was quarrel between him and sons of Isaram over the boundary bund. In cross-examination it is found that to various questions, the witness was not ready to answer and he kept silence. Thus, question was asked whether one day prior to the incident in question, there was quarrel over the boundary bund. However, there was no reply. The witness did not answer the question whether concerned Surpanch had intervened. He did not answer the question who had lifted Rupchand from the spot. He did not answer who told contents of complaint to Police. He did not answer whether Surpanch was against party of the then Minister - Mr. Swarupsingh Naik. He did not answer whether Rajkapur was brother of Surpanch and Rajkapur was belonging to the party of Mr. Naik and whether all accused were from the party of Mr. Naik. The witness did not say how the incident started. 16. He did not answer whether Surpanch was against party of the then Minister - Mr. Swarupsingh Naik. He did not answer whether Rajkapur was brother of Surpanch and Rajkapur was belonging to the party of Mr. Naik and whether all accused were from the party of Mr. Naik. The witness did not say how the incident started. 16. P.W.3-Janglya Konkani who is Surpanch of the village and who supported the prosecution case stated that on 07.10.2004 when he was present in the court-yard, he saw all accused on one side and Tulshiram and Rupchand on other side. They were quarrelling with each other and he intervened and stopped the quarrel but again the quarrel started. Bhauji Kashya caught hold of Tulshiram and Rupchand came there. All the accused started assaulting by fist and kick blows to Rupchand. Thereafter, remaining accused caught hold of Rupchand and accused No.1 Suresh gave blow with yoke to Rupchand and Rupchand fell down. In cross-examination, the witness admitted that when quarrel was going on, beside him his wife and Devlya Rajya had also gathered there. He admitted that Bhauji Kashya had caught hold of Tulshiram, so Rupchand came there to rescue his father. 17. P.W.11-Parubai has stated that at 6.30 a.m. to 7.00 a.m. on 07.10.2004 quarrel was going on between Tulshiram and Rupchand on one side and accused Nos. 1 to 6 on other side. There was scuffle between the two groups. This witness was in a position to speak in Marathi. The witness further stated that she herself and her husband intervened and tried to convince both sides. Even then they did not stop and started assaulting each other. Again fighting was going on. There was land dispute. Yoke of bullock cart was lying near house of Chaitram. Appellant Suresh picked up that yoke and gave blow on the head of Rupchand. There is no reason why this witness should be disbelieved. She denied that Rupchand was pushed by somebody and Rupchand fell down. She also said that Rupchand did not fall on any stone or boulder. We find evidence of P.W.11-Parubai more reliable and convincing. She stood the test if cross-examination. The learned Trial Judge did not believe story of other two eye-witnesses that accused Nos. 2 to 6 had caught hold Rupchand, when accused No.1 Suresh inflicted blow with the yoke. 18. She also said that Rupchand did not fall on any stone or boulder. We find evidence of P.W.11-Parubai more reliable and convincing. She stood the test if cross-examination. The learned Trial Judge did not believe story of other two eye-witnesses that accused Nos. 2 to 6 had caught hold Rupchand, when accused No.1 Suresh inflicted blow with the yoke. 18. Shri C.R. Deshpande, advocate for the appellant argued that the case would not fall under Section 302 of the I.P.C., but it would fall under Section 304 of the I.P.C. He stated that there was no pre-plan. The land dispute was not between the appellant and the deceased. The dispute was between father of the deceased and sons of Isaram. There was no intention to cause death. There was no motive to cause death of Rupchand. The incident had occurred at the spur of moment. In the quarrel, only one blow with yoke was given. Therefore, the offence would be under Section 304 of the I.P.C. and not under Section 302 of the I.P.C. He also argued that since there was no intention, the offence cannot be one of murder. He also argued that exception fourth of Section 300 of the I.P.C. is applicable. 19. On the other hand Shri K.G. Patil, A.P.P. for the respondent/State argued that this case is clearly covered under Clause Thirdly of Section 300 of the I.P.C. and the appellant has caused fatal injury, which he intended to inflict and it was sufficient to cause death in the ordinary course of nature. He also argued that the case does not fall under fourth exception. 20. Shri C.R. Deshpande cited certain cases. He cited case of Daya Nand Vs. State of Haryana, 2008 ALL MR (Cri) 2279 (S.C.). In that case the Supreme Court has laid down distinction between Section 300 and Section 304 of the I.P.C. The learned advocate referred to para Nos. 10 and 11 of the said case. The Supreme Court has laid down that safest way of approach is to keep in mind the key words used in various clauses of Sections 299 and 300. A comparative table is also given in the said case. 10 and 11 of the said case. The Supreme Court has laid down that safest way of approach is to keep in mind the key words used in various clauses of Sections 299 and 300. A comparative table is also given in the said case. In para 17 of the said case following observations from page 468 of Virsa Singh v. State of Punjab, AIR 1958 S.C. 465 465, are quoted with approval:- "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of serioueness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion." 21. In this case there is no material to show that the accused/appellant did not intend to inflict the particular bodily injury which is caused, but unintentionally or due to some other cause the injury was caused. In this case the doctor has stated that the injury on the head was sufficient in the ordinary course of nature to cause death. So, we are of the opinion that clause thirdly is clearly applicable. 22. Exception 4 to Section 300 is as follows:- "300. Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault." 23. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault." 23. Evidence of P.W.3-Janglya and P.W.11-Parubai clearly shows that scuffle was going on between two groups. They were giving blows to each other. It is also admitted position that dispute over boundary bund was between P.W.2-Tulshiram and sons of Punya and there was no dispute between appellant and Tulshiram. Evidence of P.W.11-Parubai shows that the yoke which was lying there was taken up by appellant Suresh and he gave blow with it on the head of Rupchand. Single blow was given. It appears that passions had risen high. It did not happen that the offender had taken any undue advantage or acted in cruel and unusual manner. There is nothing on record to show that it was the appellant’s side which had offered provocation or committed first assault. Considering the circumstances of the case, we are of the considered opinion that the present case falls under exception 4 of Section 300 of the I.P.C. Therefore, the offence committed will be under Section 304, Part I of the I.P.C. The appellant was 23 years of age at the time of incident. He is illiterate. Shri C.R. Deshpande, Advocate for the appellant stated that these are tribals coming from tribal area of Nandurbar. There is no evidence of previous criminal record. So, considering totality of the circumstances, we are of the opinion that rigorous imprisonment for seven years and fine of Rs. 10,000/- (Rupees Ten Thousand) would be adequate punishment for offence punishable under Section 304, Part I of the I.P.C. 24. In the result, we pass following order:- (1) The appeal is partly allowed. (2) The order of conviction and sentence dated 14.02.2007 passed by the learned Additional Sessions Judge, Nandurbar is hereby set aside and the appellant instead is convicted of the offence punishable under Section 304, Part I of the I.P.C. and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.10,000/- (Rupees Ten Thousand), in default, to suffer rigorous imprisonment for one year. (3) The order regarding payment of compensation is maintained. Appeal partly allowed.