JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Appellant No. 3 Jagoo is reported to be dead. Appeal in respect of appellant No. 3 stands abated vide order dated 27.4.2006. 2. The instant appeal was preferred by appellants against judgment and order dated 17.2.1981 passed by VIth Additional Sessions Judge, Deoria, whereby appellant No. 1 Nathoo was convicted under Section 304 Part-II with aid of Section 34, I.P.C. and sentenced to five years R.I. and appellant No. 2 Bhagela was convicted and sentenced to three years on probation and granted benefit of first offender. 3. Occurrence is alleged to have taken place on 29.6.1978 at 9:00 a.m. N.C.R. was lodged by Rameshwar Teli injured/deceased on the next day i.e. 30.6.1978 at 9:10 a.m. at Police Station Tariya Sujan, District Deoria. 4. Appellants and Rameshwar (deceased) are collateral. Their houses are adjacent to each other. Quarrel started on account of fixing stake KHUTA on the land claimed by accused as their own, which resulted in injuries of the deceased as well as two accused Nathoo and Bhagela. 5. Another report of the same incident was also registered at the instance of appellant Natthoo against deceased Rameshwar, Hari and Smt. Manki, which is Ext. Kha-6. 6. The doctor examined injuries of Rameshwar on 29.6.1978 at 12:30 p.m. which is Ext. Ka-16. He was brought by his wife and Shiv Nath Sah son of Phool Chand Sah. Following injuries were found on his body. M.I. 1. Black mole on the left side of the abdomen. 2. Black mole on the back of chest right side. Injury:- 1. contusion, tenderness and swelling on middle of head size 2-1/2", B1" H-1". Advised X-ray of the skull for any fracture. 2. Pt. Having drowsiness and serious condition due severe head injury. Refer to District Hospital Deoria, for x-ray and T/I. 3. Tenderness & swelling on back of the neck. 4. Tenderness & swelling on right buttock. 5. Tenderness & swelling on the back of chest Rt. side. 6. Pt. was unable to walk, stand and speech. Injuries were caused by hard and blunt weapon. Age of injury:- About 2 hours. Nature of injury:- After X-ray if any fracture grievous report otherwise simple. Injured Rameshwar Teli died on 2.7.1978. Prosecution examined four eyewitnesses namely Smt. Munkiya PW-1, Smt. Udasiya PW-3, Chhattu PW-4 and Hira PW-5. Dr. Radhey Shyam Singh PW-2 conducted post mortem report on the body of deceased, Dr. Age of injury:- About 2 hours. Nature of injury:- After X-ray if any fracture grievous report otherwise simple. Injured Rameshwar Teli died on 2.7.1978. Prosecution examined four eyewitnesses namely Smt. Munkiya PW-1, Smt. Udasiya PW-3, Chhattu PW-4 and Hira PW-5. Dr. Radhey Shyam Singh PW-2 conducted post mortem report on the body of deceased, Dr. Dashrath Mandal PW-10 examined injuries. Ram Narain Yadav PW-6, Bachcha Lal Rai PW-7, Ram Chandra Dubey PW-8 and Brijendra Prasad Upadhyay PW-9 are formal witnesses. Injuries of accused Nathoo examined by the doctor on 30.6.1978 at 5:00 p.m. are detailed hereinbelow:- B/B Self. M.I. :- Black mole on the right shoulder 1.8 cm above the mid point of right collar bone. Injuries:- 1. Abraded contusion 6.0 cm x 1.8 cm on the front part of right thigh 18 cm above right knee joint. 2. Contusion 4 cm x 1.8 cm on the upper half of left side of back 8cm below left shoulder. Complains of pain all over body. Nature simple. Weapon hard and blunt object. Duration about one day. Injuries of accused Bhagela examined by the doctor on 30.6.1978 at 8.30 p.m. are detailed hereinbelow : B/B Self. M.I. :- A raised black mole on the outer side of left eye brow. Injuries:- 1. Contusion 8 cm x 1.8 cm on the outer part right arm 10 cm above right elbow joint. 2. Traumatic swelling 6 cm x 4.8 cm on the back part of right leg, 9 cm below the right knee joint. Complains of pain all over the body. Opinion nature simple. Weapon hard and blunt object. Duration about one day. 7. Heard Sri S.P.S. Raghav, Senior Advocate assisted by Sri Shamsher Singh, learned counsel appearing for appellants and Sri A.K. Jain learned A.G.A. for the State. First submission on behalf of appellants is that conviction under Section 304 Part-II with aid of Section 34 I.P.C. cannot be sustained against appellants. According to prosecution itself, it is a case of sudden quarrel. There was no pre-meeting of mind. 8. Second submission is that death of Rameshwar occurred not on account of injuries but it was due to negligence of family members of the deceased. According to prosecution itself, it is a case of sudden quarrel. There was no pre-meeting of mind. 8. Second submission is that death of Rameshwar occurred not on account of injuries but it was due to negligence of family members of the deceased. On perusal of injury report, it transpires that the doctor advised injured to be taken to Hospital but as admitted by Smt. Munkaya PW-1 that he was brought back to his house and no further medical treatment was given to him. It was only after three days, he was shifted to the Hospital and he died on 2.7.1978. In the circumstances, conviction is altogether illegal. The injuries were magnified and resulted in death only because of negligence and no proper medical treatment. There is no explanation of injuries of appellants, which also form part of record. Injuries of Nathoo and Bhagela are Exts. Kha-8 and Kha-9 respectively. 9. Next submission is that according to internal examination as shown in the post mortem report, on an internal examination of the brain, it was disclosed that both parietal region having big blood clot over paremchunial? tissue underneath the inj. (Pt.) over Dura matter (Pt.) which resulted in compressed brain tissues and parietal tissues were also depressed. The doctor found the brain highly congested on cutting open the brain. Blood vessels are prominent. Thus, argument is that proper treatment was not given to the deceased, which resulted in his death. 10. Sri A.K. Jain, learned A.G.A. has disputed each and every arguments advanced on behalf of appellants and tried to demonstrate that serious injuries were caused on the head, therefore, conviction under Section 304 Part-II with aid of Section 34 I.P.C. is proper and does not call for any interference. He has supported judgment of learned Sessions Judge. 11. After hearing the counsels for respective parties at length, I am convinced that altercation did take place between parties on account of minor dispute. However, it was unfortunate that Rameshwar died on account of improper treatment as well as advise of the doctor was not followed. There is a report regarding the same incident on behalf of accused also. Injuries were examined and proved by Dr. S.P. Tripathi DW-2. Presence of appellants cannot be ruled out and injuries caused to the deceased is also established. It is established that the accused also received injuries in the incident. 12. There is a report regarding the same incident on behalf of accused also. Injuries were examined and proved by Dr. S.P. Tripathi DW-2. Presence of appellants cannot be ruled out and injuries caused to the deceased is also established. It is established that the accused also received injuries in the incident. 12. In the circumstances, I am of the view that injuries were caused by appellants to the deceased but there was neither knowledge that it might result in death or there was any such intention of causing bodily injury or death. In the circumstances, conviction under Section 304 Part-II with aid of Section 34, I.P.C. cannot be upheld. Conviction of appellants under Section 323, I.P.C. will meet the ends of justice. Conviction of appellants under Section 304 Part-II with aid of Section 34, I.P.C. is altered to one under Section 323, I.P.C. Sentence under Section 323, I.P.C. is reduced to the period already undergone. Judgment and order dated 17.2.1981 passed by VIth Additional Sessions Judge, Deoria, is set at naught. Accordingly, the instant appeal is partly allowed. The appellants need not surrender. Bail bonds and sureties are discharged. ————