JUDGMENT 1. Present appeal has been preferred by two persons who were named as accused in a case FIR No. 14/1997 registered at Police Station, Dei Distt. Bundi for offences under Sections 147, 148, 149, 307 and 323 IPC and later, offence under Section 302 IPC was added. 2. Both the appellants Prahlad and Shoji alongwith three acquitted accused namely Bhanwar Lal S/o Bheru, Shambhu S/o Bhanwar Lal and Smt. Gulab Bai Wife of Bhanwar Lal were sent for trial. The Court of Additional Sessions Judge (Fast Track) No. 1, Bundi (Rajasthan) vide impugned judgment dated 20th January, 2004 acquitted Smt. Gulab Bai, Bhanwar Lal and Shambhu, however, convicted appellant Prahlad for offences under Sections 302, 324 and 323 IPC. Appellant No. 2 Shoji was acquitted for offence under Section 302 and 324 IPC but was substantively, convicted for offence under Section 323 IPC and was released on probation. 3. Having convicted the above said appellant Prahlad for above offences, the trial Court vide a separate order of even date, sentenced the appellant Prahlad as under:- For offence under Section 302 IPC:- Life imprisonment and fine of Rs. 5000/- and in default of payment thereof to further undergo three month simple imprisonment; For offence under Section 324 IPC:- One month rigorous imprisonment and fine of Rs. 1000/- and in default of payment thereof to further undergo one month simple imprisonment; For offence under Section 323 IPC:- Six month simple imprisonment and fine of Rs. 500/- and in default of payment thereof to further undergo fifteen days simple imprisonment. All the sentences are ordered to run concurrently. 4. Both the appellants have directed this appeal to challenge their conviction and sentence awarded upon appellant Prahlad. 5. Bhanwar Lal and Kanwarilal (Kanwar Lal) are two brothers. Deceased Pushpa is wife of Kanwarilal (Kanwar Lal). Puspa was also sister of Gulab Bai, accused W/o Bhanwar Lal. Thus, two sisters, deceased Pushpa and accused Gulab Bai were married with two brothers namely; Kanwar Lal and accused Bhanwar Lal. Kishan PW-1 and Dev Lal, PW-2 are sons of Kanwarilal (Kanwar Lal) and husband of Pushpa. Deceased Pushpa is wife of Kanwarilal (Kanwar Lal). Puspa was also sister of Gulab Bai, accused W/o Bhanwar Lal. Thus, two sisters, deceased Pushpa and accused Gulab Bai were married with two brothers namely; Kanwar Lal and accused Bhanwar Lal. Kishan PW-1 and Dev Lal, PW-2 are sons of Kanwarilal (Kanwar Lal) and husband of Pushpa. Before we continue with narration of facts, it will be apposite for us to reproduce FIR (Ex.P/1) which after translation into English reads as under:- "Kishan Son of Kanwar caste Gurjar stated that today, on the day of 11th January, 1997, we were sitting at Chabutara of Mahadev and were having conversation. At that time, Bhanwar Lal, Shoji, Shambhu, Prahlad and Gulab Bai came, Prahlad and Shoji were having a Kulhadi. I said to them you intentionally leave cattle untied in our fields and they cause damage to our crop. Upon that Bhanwar lal, Shoji and Prahlad replied that our cattle shall graze like this, you do whatever you want. Saying so, Shoji gave a Kulhadi blow on my head on the left side, due to which, bleeding started. Prahlad gave a Kulhadi blow on my left foot near the ankle. I fell on the ground, then all accused gave injuries to me with kick and fist blows. To stop them, Devlal and my mother Puspa Bai came and the accused also caused them injuries. On noise raised by us Mohan S/o Bajrang, Chottu S/o Chaturbhuj, Sakwan S/o Ramdeo came at the spot and saved us." 6. It is apparent that occurrence had taken place on 11th January, 1997 and mother of first informant injured Kishan PW-1, Pushpa died on 23rd January, 1997 after twelve days of the occurrence. 7. The trial Court had charged all the appellants for offences under Sections 148 IPC, 302/149 IPC, 324/149 and 323 IPC. Appellant Prahlad was substantively charged for offence under Section 302 IPC. 8. The appellants pleaded not guilty and claimed trial. 9. Kishan appeared as PW-1. He stated that about six years ago, he was sitting near the hand pump on the place of Mahadev. His brother Devlal and mother were also sitting with him. Bardi Bai was also sitting with them. All the five accused namely; Shoji, Prahlad, Shambhu, Bhura and Gulab Bai came. He had complained to the accused regarding grazing of cattle in his field, due to which, an altercation had ensued. His brother Devlal and mother were also sitting with him. Bardi Bai was also sitting with them. All the five accused namely; Shoji, Prahlad, Shambhu, Bhura and Gulab Bai came. He had complained to the accused regarding grazing of cattle in his field, due to which, an altercation had ensued. Shoji gave one Kulhadi blow to him and Prahlad also gave an injury below the knee. He fell on the spot and became unconscious. Thereafter, accused had caused injuries to Devlal and mother Pushpa Bai. In cross-examination, this witness stated that Mahadev place is on a Chabutri. Chabutri is having height of 4 feet. This witness further stated that immediately after receiving the injury, he became unconscious. This witness has not deposed regarding causing of injuries on persons of Pushpa Bai and Dev Lal. 10. PW-2 Dev Lal stated that when all the accused came, Prahlad gave a Kulhadi blow on his head, his mother to save him encircled him and then received an injury " esjh ekWa us ckFk Hkjh esjh ekWa ds flj esa ekjh rFkk fd'kuk ds Hkh ekjh Fkh\ " and in cross-examination this witness stated that injury on the head of Pushpa Bai was given by Prahlad. In cross-examination, this witness further stated that after an altercation had ensued, later there was a scuffle " igys igys rks xqRre xqRFkk gks x, Fks 1 xqykc ckbZ rFkk iq"ik ckbZ nksuksa NqM+kus esa Fkh\ " 11. We need not notice the injuries on the person of Kishan Lal and Dev Lal as it is not in dispute that they had suffered injuries in the occurrence. After admission in the hospital, deceased Pushpa was operated upon, due to complications of the operation, she went in the coma and died. Suffice it to say, that as per PW-12 Dr. Ashok Mathur cause of death of Pushpa Bai was injury caused to the brain due to which, she had gone into coma. Pushpa Bai had died at Medical College Hospital, at Jaipur after 12 days of the sufferance of the injury. 12. Statement of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to the accused, they denied the same and stated that Pushpa Bai had died as she fell from the Chabutri due to scuffle between the parties. Accused Prahlad further stated that Pushpa Bai is her real aunt " lxh ekSlh " 13. 12. Statement of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to the accused, they denied the same and stated that Pushpa Bai had died as she fell from the Chabutri due to scuffle between the parties. Accused Prahlad further stated that Pushpa Bai is her real aunt " lxh ekSlh " 13. Shri Biri Singh Sinsinwar, Senior Counsel duly assisted by Shri Rajesh Chaudhary and Shri N.S. Dhakad, learned Public Prosecutor for the State have not denied the fact that parties are closely related. It is also admitted fact that occurrence was a sudden affair without any premeditation and had ensued on the spur of moment spontaneously, rather upon complaint made by Kishan PW-1, which had resulted into causing of the injuries. It is stated that had Prahlad not complained, nothing would have happened. It is further contended that Kulhadi is an agriculture implement and the farmers are normally armed with the same. A perusal of the evidence support the contention raised by counsel for appellants. It has come in evidence that after Kishan had made a complaint, accused had retorted back, due to which hot words were exchanged. There was a verbal dual and an altercation had also ensued. Prahlad had given a solitary injury on the person of deceased Pushpa Bai. Devlal PW-2 has admitted that both Gulab Bai and Pushpa Bai being elder ladies had intervened and separated accused. Dev Lal further stated that her mother Pushpa Bai had encircled him and then, the blow given by Prahlad had landed on the head of Pushpa Bai. Pushpa Bai died after 12 days of causing of the injury. Thus, it is admitted that appellants had no intention to cause the death of Puspa Bai and she suffered injury as she intervened to save her son. In support of this contention, counsel for the appellants has relied upon Babu Lal v. State of Rajasthan, (142) RLW 1988(1) 493 where a Division Bench of this Court relying upon judgments of Hardev Singh v. State of Punjab, AIR 1975 SC 179 , Jagat Singh v. State of Haryana, ( 1977 1 SCC 225 ), Tholan v. State of Tamil Nadu (1984 Cr.L.J.478), Kesar Singh v. State of Rajasthan (1981 Raj. Criminal Cases 20), Munshi v. State of Rajasthan, (1981 Cr.L.J. Raj. 503), Badri Lal v. State of Rajasthan, (1981 Cr.L.J.Raj. Criminal Cases 20), Munshi v. State of Rajasthan, (1981 Cr.L.J. Raj. 503), Badri Lal v. State of Rajasthan, (1981 Cr.L.J.Raj. 474) and Chaman Budhwa v. State of M.P., ( AIR 1954 SC 652 ) held that in case where intervener receive an injury, offence will fall under Section 304 Part II and not under Section 302 IPC. 14. It will be apposite here to reproduce the following paras of the judgments:- 11. Learned Counsel for the appellant has placed reliance on the following authorities: Hardev Singh and Anr. v. The State of Punjab; Jagat Singh v. State of Haryana;Tholan v. State of Tamil Nadu, 1984 Cr.L.J. 478; Kesar Singh v. State of Rajasthan, 1981 Raj. Criminal Cases 20; Munshi and Ors. v. State of Rajasthan, 1981 Cr.LR (Raj.) 503;Badri Lal v. The State of Rajasthan,1981 Cr.LR (Raj.) 474; and Chamru Bhudwa v. State of M.P. (7). 12. We have gone through the aforesaid authorities. The Supreme Court in Tholan's case (supra), has referred to several earlier cases of the Supreme Court, while convicting the accused persons in that case under Section 304 Part-II, IPC, held that though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and, therefore, he could be attributed with knowledge that he was likely to `cause death', and, therefore, he could not be convicted under Section 302, IPC. Their Lordships of the Supreme Court convicted the accused appellant in that case, under Section 304, Part-II, IPC In the present case also, we have mentioned above, the accused appellant inflicted a single blow in the incident, as a result of some altercation between accused appellant and Banshi. Deceased Jassa Ram was only an intervener and there was no pre-meditation or motive or enmity, and looking to the age of the petitioner at the time of the incident, we are of the opinion that the accused appellant should be convicted under Section 304, Part-II. 13. In the result, we allow this appeal in part, set aside the conviction and sentence under Section 302, IPC passed against the appellant Babulal, by the trial court, instead we hold him guilty under Section 304, Part-II, IPC. Appellant is thus, convicted under Section 304, Part-II, IPC and sentenced to 5 years RI and a fine of Rs. 500/-, in default of payment of fine, three months RI. Appellant is thus, convicted under Section 304, Part-II, IPC and sentenced to 5 years RI and a fine of Rs. 500/-, in default of payment of fine, three months RI. His conviction under Section 450, IPC recorded by the trial court is maintained. Both the sentences shall run concurrently. 15. We are in respectful agreement with the law propounded by the Division Bench of this Court in Babu Lal's case supra wherein placing reliance upon various judgments of Hon'ble Apex Court, sentence was converted from 302 IPC to 304 Part II IPC. 16. Consequently, taking totality of the circumstances, we convert the offence from 302 IPC to Section 304 Part II IPC. As a result thereof, appellant Prahlad is acquitted for offence under Section 302 IPC and is convicted for offence under Section 304 Part II IPC and is sentenced to five years imprisonment and pay a fine of Rs. 5,000/- and in default thereof to undergo rigorous imprisonment for three months. Conviction and sentence of the appellant Prahlad for remaining offences i.e. offences under Sections 324 and 323 IPC recorded by the trial Court is upheld. 17. Shyoji, appellant No. 2 has been convicted for offence under Section 323 IPC and has been released on probation, we see no justification to cause interference, so far appellant Shyoji is concerned. 18. As a result of above discussion with modification in offence qua Prahlad and sentence in terms of what has been noted above, present appeal is disposed of. *******