JUDGMENT : Goutam Bhaduri, J . 1. The present appeal is against the judgment of conviction and order of sentence dated 30-12-2019 passed by the Sessions Judge, Bastar at Jagdalpur, in ST No.30/2019 whereby the trial Court sentenced the accused to undergo life imprisonment with fine of Rs.500/- for the offence under Section 302 of the Indian Penal Code (for short ‘the IPC’). The trial Court also imposed default sentence in case of failure to pay the fine. 2. Filtering the unnecessary details, the prosecution case is that on 17-3-2019 the complainant Kanu Ram (PW-1) was at his residence and at that time Mahadev Baghel (since deceased) came by beating the drum ¼ढksy½ ; the appellant followed him; and also asked for a drum, however, the deceased refused to give the same, therefore, on this issue, the dispute aggravated and they entered into scuffle. In the process, the head of the deceased was smashed on stone wall on 3-4 times, as a result of which, the deceased fell down on the floor and thereafter, the other villagers were informed; police came; and merg intimation (Ex.P/1) was registered subsequently. When it was found that the deceased has died, the offence under Section 302 of the IPC was registered. The dead body of the deceased was subjected to postmortem and it was opined that death was caused because of ante mortem injury. The drum was seized and after recording statements of the witnesses the charge sheet was filed. 3. During the course of trial the appellant/accused abjured his guilt and claimed to be tried. The prosecution examined as many as 16 witnesses. Upon appreciation of evidence, the trial Court came to a finding that the appellant has committed the offence and convicted & sentenced him as mentioned above. Thus, this appeal. 4. Learned counsel appearing for the appellant would submit that no eyewitness is present in this case. She would further submit that the evidence would show that the deceased and the accused entered into the room and thereafter, the dead body of the deceased was found inside the room, but the cause of death, as has been stated was smashing the head against the wall would show that it cannot be attributed to the accused/appellant alone. She would further submit that the evidence would show that the deceased and the accused entered into the room and thereafter, the dead body of the deceased was found inside the room, but the cause of death, as has been stated was smashing the head against the wall would show that it cannot be attributed to the accused/appellant alone. It is, therefore, submitted that the learned Sessions Judge has misdirected himself to evaluate the evidence and convicted the accused for the offence under Section 302 of the IPC, which is required to be set aside. 5. Learned counsel appearing for the State, per contra, would submit that the evidence of PW-1 Kanu Ram would reveal that prior to the incident, the deceased and appellant had a quarrel which would show that previous enmity was existing between them and taking advantage of situation with all deliberation the appellant has killed the deceased. He would further submit that the death was homicidal in nature, which is proved by PW-4 Dr.Sumant Sen. There is no other witness to rebut or doubt the incident, therefore, the impugned judgment is well merited, which do not call for any interference of this Court. 6. We have heard learned counsel for the parties and perused the record. 7. The postmortem report is marked as Ex.P/7 and the cause of death has been shown that head injury results in subdural hemorrhage and thick layer of blood clot. The same is proved by PW-4 Dr.Sumant Sen. According to the statement of PW-4 Dr.Sumant Sen, the injury was ante mortem in nature and it was opined that because of such injury inflicted on the deceased, the death could have caused. It was further stated that the injury on head was caused by heavy article or by smashing the head against some hard surface. In the cross-examination, it is further stated that even if the deceased fell on the hard surface the said injury could have been caused, therefore, the death was homicidal in nature, which has been proved by the prosecution. 8. The prosecution heavily relied on the statement of PW-1 Kanu Ram. According to him, on the date of incident the deceased came to his house while beating the drum and at that time the accused also came there. Thereafter, they entered into a room of his house. 8. The prosecution heavily relied on the statement of PW-1 Kanu Ram. According to him, on the date of incident the deceased came to his house while beating the drum and at that time the accused also came there. Thereafter, they entered into a room of his house. After some time they did not come out and when he went to saw them in the lane he found that the deceased was lying on the floor and having seen, he examined the deceased and he was found to be dead. It was also shown to the brother of the appellant namely; Badu Baghel (PW-3) and also intimated to the villagers on which merg intimation (Ex.P/1) was registered. Subsequently, FIR was registered vide Ex.P/2. This witness was declared hostile. He admitted the fact in the cross-examination that because of the fact that the appellant wanted to beat the drum, which the deceased refused, on which the dispute aggravated in between them and on that issue the scuffle took place. He also stated that because of the fact that head of the deceased dashed against the wall he died. In the cross-examination, he admitted the fact that on the date of incident, there was a festival esyk vkSj tkrk going on in the village and the deceased was also in a heavy drunken state. The witness further admitted the fact that he was also consuming liquor with his family members inside the house. On a specific suggestion given to him that he has not seen the deceased and appellant inside the room of other house, he denied. Therefore, the statement of PW-1 Kanu Ram would show that the deceased and appellant first met and thereafter, they entered into the house. After some time, when this witness went there he found that deceased was lying on the floor and the appellant fled away. 9. PW-2 Smt. Neela Kashyap is the wife of PW-1 Kanu Ram. She also stated similar statement that of PW-1 Kanu Ram that on the date of incident while they were consuming liquor, the deceased and appellant came and she was informed that dispute has occurred in between the deceased and appellant. She is a hearsay witness. 10. Statement of PW-3 Badu Ram, who is the brother of the appellant, would show that on the date of incident, they were consuming liquor. She is a hearsay witness. 10. Statement of PW-3 Badu Ram, who is the brother of the appellant, would show that on the date of incident, they were consuming liquor. He was consuming liquor at the house of PW-1 Kanu Ram. Thereafter, he was informed that the dispute has occurred in between the deceased and appellant. After committing murder of the deceased, the appellant has fled away. Thereafter, this witness and PW-1 Kanu Ram went to the spot and saw that Mahadev was dead. Subsequently, it was informed to other villagers. This witness also declared hostile. However, in the cross-examination, he admitted the fact that dispute occurred because of beating of drum by the deceased and at that time since the drum was demanded by the appellant, which was denied, that aggravated the dispute in between them. 11. PW-5 Mangal Baghel is also hearsay witness. He has not seen the incident. Therefore, evaluating the evidence of the witnesses it would show that on the date of incident on a trivial issue the deceased and accused landed into dispute, which resulted into a quarrel and assault. 12. In the matter of State of Andhra Pradesh v Rayavarapu Punnayya and Another, (1976) 4 SCC 382 , the Supreme Court held thus at para 12 : 12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not viceversa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to. murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the First part of Section 304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304. 13. This is punishable under the First part of Section 304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304. 13. In the matter of Jagriti Devi v State of Himachal Pradesh, (2009) 14 SCC 771 , the Supreme Court observed that Section 304-II comes into play when death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of accused either to cause death or to cause such bodily injury as is likely to cause death. 14. The series of incident, which happened during passage of time, would show that the appellant and deceased entered into a trivial issue of beating of drum and having refused the drum on being demanded by the appellant they entered into a dispute. At the time of incident, both were in inebriated condition. Further it would show that during such spur of moment when the deceased refused to give the drum, the scuffle took place between both of them and in such process, his head was struck against the wall, which is affirmed by the postmortem report (Ex.P/7). Though the fatal injury was inflicted, it caused death by the appellant but without intention to kill him, therefore, in our considered view, the act committed by the appellant would amount to culpable homicidal not amounting to murder punishable under Section 304 Part II of the IPC. 15. Accordingly, we allow the appeal in part. Conviction and sentence imposed on the appellant under Section 302 of the IPC are hereby set aside and instead he is convicted under Section 304 Part II of the IPC and sentenced to undergo RI for seven (7) years. The fine amount and the default sentence imposed by the trial Court shall remain unaltered.