Mahendra Bhushan Sharma, J.
1. Accused Hakim Singh has appealed from jail against the judgment dated May 28, 1981, passed by the learned Addl. Sessions Judge, Gangapur City, under which he has been convicted Under Section 302, IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo five months' rigorous imprisonment. It has also been ordered that in case the fine is recovered, the entire amount would be paid to Smt. Mohan bai, widow of the deceased.
2. The facts of the case are that the deceased, Raghuveer Singh, and accused Hakim Singh are real brothers. The occurrence is said to have taken place in the night intervening 6th and 7th June, 1980. At that time, deceased Raghuveer Singh was sleeping on a cot outside his house and his wife Smt. Mohan Bai, son Kamal Singh and daughter Mrs. Majra were also there. It is alleged that accused Hakim Singh, who also lives in the same house, came armed with lathi and started hurling abuses to Raghuveer Singh. When he asked not to do so, the accused gave a farsi blow on the head of Raghuveer Singh. Thereafter some farsi blows were given on other parts of his body. The deceased became unconscious and was taken, in a bullock-cart, to the Government Hospital, Mandawar. The Doctor directed to lodge a report in the police station and, therefore, Mohar Bai (pW/1) lodged a report in the police Station, Mandawar on June 7, 1980. Raghuveer Singh died in the hospital and an inquest report was prepared. Dr. Vishnu Chand Gupta (PW 9) firstly examined the injuries of Raghuveer Singh, who was unconscious, and found that there was one lacerated wound 5 cm x 1/4 cm x 1/2 cm on the upper and about central portion of the scalp. There were also other injuries on his person. His condition was serious. He died in the hospital, as a result of the injuries, on June 8, 1980. Thereafter, autopsy was conducted on his dead body by Dr. K.L. Chhangani. Dr. Chhangani found the following injuries on the person of the deceased :
(1) Lacerated wound 3-1/2 cm x 1/2 cm x skin deep on the vault of the skull vertically placed in the middle. There was a contusion of 1/2 cm around the wound;
(2) Abrasion 1 cm x 1 cm just above the medial end of the left eye brow with scab;
(3) Abrasion 1 cm x 1 cm on the right shoulder posteriorly with scab formation;
(4) Abrasion 3 cm x 3/4 cm on the middle 1/3rd of the left tibial thin with scab formation;
(5) There was a diffused swelling on the left perieto-temporal region.
3. On dissection the Doctor found internal injuries on the scalp and other haemorrhage on the left parieto-temporal region. There was a fracture line extending from the middle of the parietal region upto the middle of the temporal region left side. There was an extra-dural haemotoma in the area of 8 cm x 6 cm on the left parietotemporal region. There was depression of the brain on the left temporo-parietal region. According to the Doctor, the cause of the death was coma as a result of injury to the brain as mentioned in the post-mortem report Ex. P, 10.
4. After investigation, a charge-sheet was filed against the accused who was charged Under Section 302, IPC to which he pleaded not guilty and claimed to be tried. The prosecution has examined as many as 15 witnesses, including eye-witnesses, numbering three, namely Mohar Bai PW 1 wife of deceased; Raghuveer Singh, Mst. Maya (PW 2) daughter of Raghuveer Singh and Kama] Singh (PW 3) son of Raghuveer Singh. In his statement Under Section 313 Cr. PC explained the circumstances appearing in the evidence of the prosecution witnesses. He stands on a bare plea of denial. It was also stated by the accused that the deceased, Raghuveer Singh was in the habit of drinking and after being drunk he used to abuse and he formed a party against him. Subhan Singh, Lallu etc. were in his party. He was beaten by Lallu and others and a case was pending on the day of the occurrence when Raghuveer Singh came to his house armed with a farsi and struck a blow by it. He picked a lathi lying there and tried to ward off the attack. At the time, his father and others arrived there. He ran away from there and struck against a bullock-cart standing nearby. He received an injury. The accused examined as many as three defence witnesses, viz, DW 1 Sultan Singh, DW 2 Jaisingh and DW 3 Bhusan Singh. The learned Addl. Sessions Judge found the accused guilty and convicted and sentenced him as aforesaid.
5. The only argument advanced by the learned Counsel for the accused-appellant is that in the facts and circumstances of the case, at least, a case Under Section 304, IPC is made out and this is not a case in which it can be said that the accused has committed an offence Under Section 302 IPC.
6. We have given our careful consideration to the arguments advanced by the learned Counsed for the accused-appellants as well as the learned Public Prosecutor for the State, who has supported the judgment of the learned trial Court. The facts as appeared from the evidence on record are that a room was constructed by the accused and the deceased jointly. There was a dispute over the partition of that room in between the deceased and the accused-appellant. On an earlier occasion also, there was exchange of abuses in connection with that dispute in between them, two months prior to the date of occurrence. On the day of occurrence, the accused who was also living in the same house, started abusing the deceased. When the deceased asked him not to do so, the accused gave a single lathi blow on the head of the deceased, who was sleeping on a cot. He also struck some more blows, but these were not on vital part of the body. In the circumstances, we are of the opinion that the case of the accused-appellant falls Under Sub-section (4) of Section 300, IPC. Under Sub-section (4) of Section 300 IPC culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. The accused-appellant struck a single lathi blow and did not repeat the stroke on any vital part of the body, which goes to show that the occurrence took place without premeditation in a sudden fight in the heat of passion. Under these circumstances, an offence Under Section 304-I, IPC is made out.
7. In the result, the appeal is partly allowed and we convert the conviction of the accused appellant from Section 302 IPC to Section 304 IPC and sentence him to seven year's rigorous imprisonment and a fine of Rs. 500/-and in default of payment of fine to undergo three months rigorous imprisonment.
8. A copy of this judgment be sent to the Superintendent of Central Jail, Jaipur.