JUDGMENT : P. Sam Koshy, J. The Appellant stands convicted under Section 302 IPC to undergo life imprisonment with fine of Rs. 100/- with default stipulation by judgment dated 10.10.2002 passed by the Second Additional Sessions Judge (FTC), Janjgir in Sessions Trial No. 391 of 1999. 2. The prosecution case in brief is that on 06.08.1999 at around 3:45 p.m. the Appellant along with his wife had gone to his agricultural fields situated at Gersakhar near Barainala Talghat for uprooting the wild grass from his field. While they were busy in the field, Bhajoram is said to have come with a lathi and there was a heated exchange of words between Bhajoram and the Appellant pertaining to dispute over the boundary of their fields adjacent to each other. It is said that Bhajoram initially attacked the Appellant. In turn, the Appellant snatched the lathi from the hands of Bhajoram and gave a couple of blows with the lathi on account of which Bhajoram sustained injuries near his neck, shoulder and because of impact of the assault, Bhajoram sustained subdural hemorrhage resulting in his death. 3. PW-1, Dineshwar Das lodged Merg intimation, Exhibit P-1 at around 18:15 p.m on the same day, based upon which, First Information Report (FIR), Exhibit P-2, was lodged on 07.08.1999 at around 12:30 p.m. The police station stands located at around 30 km from the place of incident. The Appellant was named as the accused in the Merg intimation as well as in the FIR and on the basis of which charge-sheet was filed and the matter was put to trial in Sessions Trial No. 391 of 1999 before the Court of Second Additional Sessions Judge (FTC), Janjgir. 4. The prosecution in all examined as many as 19 witnesses whereas the Appellant in defence did not examine any witness. After conclusion of trial, the Court below found the Appellant to be guilty of offence under Section 302 IPC and sentenced him to life imprisonment. 5. Learned Counsel appearing for the Appellant challenging the said judgment of conviction submitted as under : 1. Even if the entire case of the prosecution is admitted as it is even then what is apparently clear from the prosecution story is the fact that the Appellant at no point of time had any intention of taking up a fight with the deceased, Bhajoram. Even if the entire case of the prosecution is admitted as it is even then what is apparently clear from the prosecution story is the fact that the Appellant at no point of time had any intention of taking up a fight with the deceased, Bhajoram. The Appellant also did not have any intention of causing death of the deceased. 2. That, it was the deceased who had come to the field where the Appellant and his wife were working and took up a fight with the Appellant and the verbal duel went on to physical exchange of blows between the deceased and the Appellant on the spur of the moment and, in the consequence, the deceased succumbed to the injuries that he sustained. 3. That, the neither the Appellant nor his wife were armed with any weapon nor were they carrying lathis in their hands, whereas it was the deceased who had come to the field of the Appellant armed with a lathi and started arguments/fight with the Appellant and it is the lathi which the deceased was carrying with him, the Appellant is stated to have assaulted him causing injuries to the deceased resulting to his death. 4. That, there were free fight between the Appellant and the deceased and in the course of free fight, both the parties received injuries. The MLC of the Appellant, Exhibit P-7, shows that the deceased had also assaulted the Appellant. However, in the course of fight it appears that the assault which the Appellant had made upon the deceased unfortunately proved fatal. But, there was no intention or knowledge on the part of the Appellant of causing death or for that matter injuries which would result in the death of the deceased. 5. That, none of the injuries caused to the deceased were serious but were only bruises which are simple in nature, which could not have otherwise caused death. This itself establishes the fact that the Appellant never had any intention to kill nor was he pre-meditated in any manner to kill the deceased. Keeping in view the aforesaid submissions, Counsel for the Appellant submitted that under no circumstances can the case of the Appellant be brought within the ambit of Section 302 IPC. Rather, it is case where at best the Appellant could have been punished for an offence for voluntarily causing hurt as per Section 324 IPC. Keeping in view the aforesaid submissions, Counsel for the Appellant submitted that under no circumstances can the case of the Appellant be brought within the ambit of Section 302 IPC. Rather, it is case where at best the Appellant could have been punished for an offence for voluntarily causing hurt as per Section 324 IPC. He further argued that since the Appellant has already remained in jail for a period of more than three years and has already completed the maximum sentence that can be awarded under Section 324 IPC, the appeal deserves to be allowed and the impugned judgment needs to be set aside. 6. Per contra, learned Counsel appearing for the State opposing the appeal drew the attention of the Court to the evidence which has been lead on behalf of the prosecution whereby the offence said to have committed by the Appellant has been established and proved beyond all reasonable doubts and that most of the prosecution witnesses examined, during the course of evidence have also supported the case of the prosecution. In addition, Counsel for the State referred to the evidence of PW-9, Budhram, and submitted that there is a categorical extra-judicial confession made by the Appellant. PW-10, Girdhar, also deposed before the Court in the same manner as has been deposed by PW-9, Budhram. Likewise, State Counsel also referred to the evidence of PW-6, Mitthulal, who also deposed before the Court, of the Appellant making an extrajudicial confession in respect of the fight that he had with the deceased and also causing injuries to the deceased. Based upon the evidence of prosecution as also the extra-judicial confession which the Appellant has made, Counsel for the State prayed for rejection of the appeal. 7. Having considered the rival contentions of the Counsel for the parties, what is reflected from the evidence of PW-6, Mitthulal, PW-9, Budhram as well as PW-10, Girdhar, supported by the other prosecution witnesses, is the fact that admittedly there was a dispute pertaining to the boundary of the agriculture field belonging to the Appellant and the deceased, which were adjacent to each other. Further, from the evidence which has come on record it also establishes the fact that it was the deceased who had gone to the field of the Appellant and took up a fight with him in respect of the boundary. Further, from the evidence which has come on record it also establishes the fact that it was the deceased who had gone to the field of the Appellant and took up a fight with him in respect of the boundary. It is also established that it was the deceased who was carrying a lathi and the Appellant was not having any weapon or for that matter a lathi at the time of incident. From the evidence of PW-9, Budhram, PW-10, Girdhar as well as that of PW-6, Mitthulal it is also established that there was a free fight between the parties and the Appellant as well the deceased both sustained injuries in the course of free fight. 8. A perusal of post-mortem report, Exhibit P-6, conducted by PW-5, Dr. M.L. Sahu, would reveal that there were only four injuries, all of which were in the nature of bruises, and one penetrating injury near the chin, superficial in nature and there was only one fracture of the left clavicle bone. The lathi had broken evident from seizure report, Exhibit P-12, and which may here caused the superficial piercing injury due to fragmented edges. As such all the injuries inflicted by the Appellant were simple injuries and were not in any manner grievous so as to make out a case one under Section 302 IPC. The cause of death as per PW-5, Dr. M.L. Sahu, who conducted the post-mortem, was the collection of large amount of blood between dura-mater and pia-mater which, in other words, is also known as subdural hemorrhage which would evidently establish the fact that the cause of death was not the direct result of the injuries sustained by the deceased but was the consequence thereto. As a result of injuries inflicted by the Appellant, there was a large number of blood which got collected near the surroundings of the brain which resulted in his death. As such, there was no evidence on record to the fact that the Appellant caused any fatal injury to the deceased resulting in his death. 9. As a result of injuries inflicted by the Appellant, there was a large number of blood which got collected near the surroundings of the brain which resulted in his death. As such, there was no evidence on record to the fact that the Appellant caused any fatal injury to the deceased resulting in his death. 9. Further from the evidence which has come on record, it can also be said to be a case where the Appellant is stated to have exercised his right of private defence as there is evidence showing that it was the deceased who had come with a lathi and it was he who took up the fight with the Appellant. It also establishes from the record that there was a free fight between the deceased and the Appellant in which both of them sustained injuries. Since the deceased had come with a lathi and took the fight first, he can be said to be the aggressor. The Appellant was not having any weapon in his hand but was working in his field when the deceased came with a lathi and took a fight and in the course of exercising his right of private defence, the Appellant is stated to have snatched the lathi from the hands of the deceased and gave a few blows which in fact did not cause any grievous injuries. Such an act on the part of the Appellant squarely comes within the ambit of Section 100 IPC. Thus, from the evidence of the prosecution it can be safely concluded that the conviction of the Appellant under Section 302 simpliciter of the IPC was not justified. 10. It is further established that the Appellant at no point of time was having any intention, knowledge or a plan to attack the deceased. It only happened after the deceased had come to the field of the Appellant and took a fight with him and in the course of the fight both parties assaulted each other resulting in injuries to both of them. There was also no premeditation but a sudden fight in the heat of passion on sudden quarrel that the deceased took up with the Appellant. There was also no premeditation but a sudden fight in the heat of passion on sudden quarrel that the deceased took up with the Appellant. It also appears that the deceased first assaulted the Appellant with a lathi and later the Appellant snatched the lathi from the hands of the deceased and assaulted the deceased which later on unfortunately proved to be fatal. 11. When we see the nature of assault caused and compare it with Section 324 IPC, it would clearly reveal that the act committed by the Appellant has all the ingredient of Section 324 IPC. The "intention to murder" is a different from that of "intention to cause hurt". The only requirement to constitute the offence is voluntarily causing injury and the nature of injuries must be simple in nature. 12. Further, in the instrument used by its very nature should be such that could reasonably predicate that by its use as a weapon death would not be probable. That being the true import of the word 'likely' used in the Section. Lathi which is said to have been used for assault could not be said to be by its very nature an instrument likely to cause death within the purview of Section 324 IPC. 13. Thus, for the foregoing reasons, it can be safely concluded that the conviction of the Appellant for offence under Section 302 IPC is not justified. But, in the given factual background of the case and the injuries inflicted by the Appellant on the person of the deceased, the conviction of the Appellant deserves to be converted from Section 302 IPC to one under Section 324 IPC. The Appellant has already remained in jail for a period of more than three years, hence the sentence of the Appellant stands modified for the period already undergone. 14. Resultantly, the appeal is allowed in part. The impugned judgment of conviction and sentence is modified to the extent that the Appellant stands convicted to under Section 324 IPC and is sentenced to the period already undergone. Appeal partly allowed.