JUDGMENT [ENTITY], J.
1. In [CASE NUMBER] the four persons were tried for the offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION]. Fourth Additional Sessions Judge, Gwalior vide judgment dated 21-9-1999 acquitted the three accused persons and convicted appellant [ENTITY] for the offence under [SECTION] of [ACT] and sentenced him to life imprisonment and fine of Rs. 2,000/-, in default of payment of fine further one year rigorous imprisonment. Being aggrieved with the aforesaid judgment, the appellant has preferred this appeal.
2. According to the prosecution story, on 26-9-1995 at about 10-11 a.m. in the morning at village Bhelakala under Thana Bijoli District Gwalior one [ENTITY] was construcing platform (Chabutara). At that time [ENTITY] s/o [ENTITY] came and stopped him and said that the land on which he is constructing platform belongs to him. On this, there was a quarrel between [ENTITY] and [ENTITY]. [ENTITY] came on spot and tried to pacify the matter. After one hour [ENTITY] came back from forest and started abusing. When he was abusing [ENTITY] came on spot carrying [ENTITY] in his hand. He had also started abusing. [ENTITY] came in between. [ENTITY] inflicted two [ENTITY] blows behind the neck of [ENTITY] and two [ENTITY] blows on the back and she sustained injuries. [ENTITY] pushed [ENTITY] and she fell down. [ENTITY] and [ENTITY] both were present at the place of occurrence, who had seen the incident. [ENTITY] along with [ENTITY] went to police station Bijori where she lodged FIR. On the basis of her report crime was registered under [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT]. In the incident [ENTITY] also received injuries. She was also referred for medical examination and during treatment [ENTITY] died. Thereafter, [SECTION] of [ACT] was added in the crime. Matter was investigated and charge-sheet was filed. During trial appellant abjured his guilt and his defence was that due to family dispute between the parties he has been falsely implicated and he is quite innocent. Witness Dr. [ENTITY] (D.W. 1) was examined in defence. The trial Court after considering the evidence on record acquitted three accused persons and convicted the appellant [ENTITY] against which he has preferred this appeal.
3. We have heard Shri [ENTITY], learned Sr. counsel for the appellant and Shri [ENTITY], learned Public Prosecutor for the respondent/State and perused the evidence and findings on record.
4. Shri [ENTITY] submitted that it is not a case under [SECTION] of [ACT] as there is no evidence on record to show that the case is made out within the purview of [SECTION] [ACT] and at the most appellant can be convicted under [SECTION] of [ACT]. As the appellant has suffered jail sentence of more than seven years, therefore, his prayer was that the offence be converted and the appellant be released on undergone sentence. On the contrary Shri [ENTITY] supported the judgment and submitted that the appeal is liable to be dismissed.
5. [ENTITY] (P.W. 1) Initially supported the prosecution story and he has stated that it was [ENTITY] who inflicted [ENTITY] blows to [ENTITY]. [ENTITY] was also nephew of [ENTITY] and [ENTITY] was mother of [ENTITY]. [ENTITY] who is father of [ENTITY] is brother of [ENTITY] and at that time they were residing in the same house. Initially the evidence of this witness was recorded on 28-11-1997 and he was cross-examined but later on he was again summoned for cross-examination on 10-11-1998 and at the time in cross-examination of para 20 he admitted that we belong to the same family and their relations before the incident were very cordial and the incident took place all of a sudden. Initially, on account of construction of platform, the scuffle took place between [ENTITY] and [ENTITY] and in that scuffle [ENTITY] fell down on the stones and received injuries. He also denied that police has recorded the FIR. It is submitted that when [ENTITY] was being taken to hospital, police came in between and obtained the thumb impression of [ENTITY] whereas [ENTITY] has not stated anything to police. [ENTITY] (P.W. 2), who is also nephew of [ENTITY] has not supported the prosecution and was declared hostile. He took the defence that there was some scuffle between [ENTITY] and [ENTITY] and in that scuffle [ENTITY] received injury in the head and she became unconscious and subsequently died. [ENTITY] (P.W. 3) has also deposed in the same way and has not supported the prosecution and was declared hostile. [ENTITY] (P.W. 4) and [ENTITY] (P.W. 5) have also not supported the prosecution and they were also declared hostile. [ENTITY] (P.W. 6) had performed the post-mortem of the dead body of the deceased and according to the evidence of doctor four injuries were found on the body of the deceased:
(i) Abrasion on left side of elbow in size 5 X 2 cm.
(ii) Rail pattern contusion on right side of the neck in size 8x3.5 cm.
(iii) Rail pattern contusion situated over right scapula in size 7 x 2.5 cm.
(iv) Rail patern contusion situated 3 cm below injury number (iii) obliquely vertical intero laterally in size 15 x 2.5 cm to right side flank lower chest.
As per [ENTITY] the death was due to shock and hemorrhage as a result of abdominal injury. Injuries were caused by hard and blunt object and nature of death was homicidal and duration of death was within 6 hrs. to 24 hrs. since post-mortem examination. Doctor has admitted that the weapon was not referred to him for examination. He has admitted in the cross-examination that there was no external injury on the body of the deceased and there was no sign about the oozing of the blood. The liver of the deceased was ruptured and blood was collected inside the stomach. It was argued that the doctor has not given any opinion that which injury was fatal and whether anyone of the injury was collectively sufficient to cause the death in the ordinary course of nature. [ENTITY] injured witness was also examined by Dr. [ENTITY] (P. W. 9) but [ENTITY] has not supported the prosecution case and she was declared hostile.
6. Dr. [ENTITY] (D.W. 1) was examined in defence and his version was that initially he examined [ENTITY] and she had only received one abrasion. She was complaining pain in the shoulder of right hand and in the waist and her general condition was poor. Me had also medically examined [ENTITY] who had also received three injuries. He had also examined [ENTITY] who had also received three injuries. From this, it is clear that there was scuffle or free fight between the parties but it is also clear that they are all the members of the same family and the dispute suddenly took place between them on account of construction of some platform and all accused persons were bare handed and they were not having any lethal weapons in their hands.
7. Considering the totality of the evidence on record, we found that in the absence of medical evidence on record to the effect that the injuries caused individually or collectively were sufficient to cause death in the ordinary course of nature the case will not fall under [SECTION] [ACT].
8. Though, the witnesses have not supported the prosecution evidence but the dying declaration and FIR lodged itself are available on record and the learned Counsel for the appellant has also not challenged that the incident had not taken place or the deceased had not received injuries in that incident. Therefore, the case before us whether the offence will fall under [SECTION] [ACT] and will be punishable under [SECTION] of [ACT] or whether it is a case of culpable homicidal not amounting to murder and will fall under [SECTION] of [ACT]. We have considered the evidence particularly the medical evidence on record and have considered the decision in the case of [PRECEDENT] in which it is held that to bring the case within the purview of [SECTION], it has to be proved that there was an intention to inflict that particular bodily injury and the injuries of the deceased were sufficient to cause death in the ordinary course of nature. In the case of [PRECEDENT] sudden quarrel took place between two friends and there was not exchange of words between the two and accused inflicted single knife injury to the deceased and there was no medical evidence that injury was sufficient in the ordinary course of nature to cause death, it was held that the offence will not fall under [SECTION] of [ACT] but under [SECTION] of [ACT]. In the case of [PRECEDENT] sudden fight took place and accused inflicted knife injury into abdomen was likely to cause death. As it was the case of sudden fight the Supreme Court has held that the act of the accused would amount to culpable homicidal not amounting to murder and offence was converted from [SECTION] of [ACT] to [SECTION] of [ACT]. In the case of [PRECEDENT] when the injuries were caused collectively, the Court found that the offence would be of committing culpable homicide not amounting to murder. In the case of [PRECEDENT] the principle of [SECTION] was considered and it was held that the prosecution must prove it in objective manner that injuries were sufficient to cause death in the ordinary course of nature and common object to cause death has to be established. Though, in both the cases considering the injuries and evidence Supreme Court converted the offence from [SECTION] of [ACT] to [SECTION] of [ACT].
9. In the case in hand we have found that the sudden quarrel took place between the parties. They were not carrying lethal weapons. They are the family members and dispute took place only on the construction of platform. Initially some quarrel took place between two ladies [ENTITY] and [ENTITY] and thereafter, there was wordy quarrel and exchange of abuses between the parties and suddenly lathi blows were given on the body of the deceased. Though the prosecution witnesses have not supported the prosecution story and narrated a different version of the incident but from the medical evidence as well as from the FIR which was lodged by deceased, we find that FIR version can be accepted as of a dying declaration. There is no evidence on record that the injuries caused to the deceased were sufficient to cause death in the ordinary course of nature. Therefore, considering the totality of the facts and circumstances of the case, we are of the view that the conviction of the appellant under [SECTION] of [ACT] is liable to be set-aside and he is liable to be convicted under [SECTION] of [ACT]. He has already suffered jail sentence of more than seven years which appears to be just and proper as the injured persons as well as the accused belong to the same family and the appellant was aged about 18 years at the time when the incident took place and facing agony of criminal proceedings since last more than 12 years.
10. Consequently, this appeal is partly allowed and conviction is converted to [SECTION] of [ACT]. As far as sentence is concerned, the appellant is sentenced to the period of sentence already undergone by him. Appellant is in jail he be released forthwith if not required in any other case.