(Delivered on this the 2nd day of August, 2018) This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved of the judgment dated 27/11/2017 passed by the Sessions Judge, Chhindwara in ST No.121/2015, whereby the present appellant has been convicted under Section 304 (Part-I) of IPC and sentenced to five years' rigorous imprisonment with fine of Rs.5,000/- with default clause.In brief the facts of the case are that on 7.2.2015 at around 9:15 PM in the night complainant 2 Mitesh's elder brother Monu @ Ritesh and co-accused Vijesh had an altercation near Hanuman temple.On hearing the same complainant Mitesh and his father Ram Prasad went to the house of co-accused Vishnu where Monu @ Ritesh was telling that accused Vijesh had assaulted him as he was asking for the consideration which was fetched by selling his motorcycle, at that time other accused Vishnu and Ajesh, the present appellant also came there with sticks in their hands.Complainant Mitesh and his father Ram Prasad were abused and were thrashed by sticks.Ram Prasad got injured in the incident and fell down after receiving the injuries and when other villagers intervened, they were separated.After the incident the injured was taken to the Primary Health Centre, Junnardev and intimation of the crime was given to ASI C.S.Uike, who recorded the Dehati Nalishi (Ex.P-27).Injured Ram Prasad (deceased) was examined by Dr. Raghuvir Singh (PW-9) vide MLC (Ex.P-14).Similarly, Dr. Raghuvir Singh (PW-9) also examined injured Mitesh, who had injury on his right hand and was advised for x-ray.Ram Prasad succumbed to the injuries at about 1:45 AM in the night on 8.2.2015, hence a Marg intimation was also made and in the post-mortem report 3 prepared by Dr.Manish Gathoriya (PW-10), the following injuries were found on the person of the deceased:- " " "So far as injured Mitesh is concerned, he had fracture of third metacarpal of his right hand vide Ex.P- 12, which has been proved by Dr.Shikar Surana (PW-8).After investigation, a charge sheet was filed and the learned Judge of the trial Court after recording the evidence has convicted the appellant as aforesaid, whereas other co-accused persons namely Vishnu and Vijesh were convicted under Section 323 of IPC and sentenced to the period one already undergone by them.Learned counsel for the appellant has submitted that the appellant has wrongly been convicted by the learned Judge of the trial Court, as the incident has taken place on the spur of moment and there was no intention to cause the death of deceased Ram Prasad.On the other hand, learned counsel for the State has opposed the prayer of the appellant and has submitted that the appellant has rightly been convicted by the learned Judge of the trial Court, and hence his appeal may be dismissed.7. Heard the learned counsel for the parties and perused the record.In the post-mortem report, it is clearly mentioned that three injuries which were received by the deceased are lacerated wounds, however it appears that in his deposition before the Court, the injury No.1 has wrongly been typed as incised wound "kata huwa ghav", instead of lacerated wound i.e. "fata huwa ghav" and the cause of death is also stated to be shock arising out excessive bleeding due to head injury.In this regard the deposition of PW-1 Suresh assumes importance, who happens to be an independent witness and has not been declared hostile.According to him, he came out of his house after hearing the persons quarrelling with each other and saw that Monu @ Ritesh and Mitesh were beating Vishnu, at that time Ajesh and Vijesh also came and in this scuffle an assault was made by Ajesh on the head of Ram Prasad, who fell down.In these circumstances, when this witness has not been declared hostile, the prosecution is bound by his deposition.In this regard Dr. Raghuvir Singh (PW-9) in 6 his cross examination has admitted that on 07.10.2015 he also examined Vishnu Suryavanshi who had received the following injuries:-^^1 duiVh ds ck,a fgLls ij 4x2 bap Ropk dh xgjkbZ rd A 2 ck,a ?kqVus esa fNys dk fu'kku Fkk ftldk vkdkj 1x1 bap Fkk vkSj yky dyj esa Fkk A 3 nk,a ?kqVus esa fNys dk fu'kku Fkk ftldk vkdkj 1x1 bap Fkk vkSj yky dyj esa Fkk A^^ The said injuries were simple in nature.This witness also examined Munnibai wife of Vishnu Suryavanshi who had received minor abrasions.The other witnesses have also deposed more or less on the same lines and all of them have stated that the incident has taken place in front of Vishnu's house.It is also on record that both the parties are closely related to each other and the genesis of the incident is said to be the amount which Monu @ Ritesh was demanding from Vishnu.Thus, in the considered opinion of this Court, there appears no intention on the part of the appellant to cause death of Ram Prasad, as apparently the incident took place on the spur of moment in front of accused Ajesh's house whose father Vishnu's was beaten by complainant's side and thus he also intervened in the said 7 fight and caused injuries to Ram Prasad, which cannot be said to be premeditated in any manner and appears to have been so cause on the spur of the moment.Though looking to the injuries received by Ram Prasad, it may be said that while causing such injuries, the appellant must have knowledge that such injury may cause the death of the deceased and his intention to commit the murder does not appear to be present on record.Thus, under the facts and circumstances of the case instead of Section 304-I of IPC, the appellant is liable to be convicted under Section 304-II of IPC.Although in both these sections under Section 304-I and 304-II of IPC, the maximum imprisonment is life, however there is fine distinction between these two provisions and it is of intention and knowledge of causing the death, and the knowledge of death shall definitely be on a lower pedestal than intention to cause death.In the circumstances, instead of conviction under Section 304 Part-I of IPC, the appellant is convicted under Section 304-II of IPC.So far as question of quantum of sentence is concerned, the submission advanced by the learned counsel for the appellant that the appellant may be 8 sentenced to the period already undergone by him, as he has already undergone three years and six months' RI out of five years' RI, appears to be reasonable.In the result, the criminal appeal stands partly allowed.

Cited provisions: Section 304 in The Indian Penal Code; Section 323 in The Indian Penal Code