Mufti Baha-Ud-Din Farooqi, J.
1. Amma Bhat and others, respondents herein, have been committed by the ludicial Magistrate Pulwama to the Court of Session at Anantnag to stand their trial on a charge under Section 304, R. P. C read with Section 34 thereof. The petitioner, Ismail Bhat, at whose instance the respondents were challaned by the police, made an application to the Sessions ludge Anantnag praying that charge be altered to Section 302, R. P. C. By his order dated April 21, 1972, the learned Sessions ludge rejected the application. Hence this revision.
2. Appearing for the petitioner Mr. Hakim Mohd. Sadiq argued that the statement of the doctor that the injury on the head of the deceased was sufficient in the ordinary course of nature to cause death coupled with the statements of the prosecution witnesses that the said injury was caused by the principal accused namely Amma Bhat by a violent stroke of a stick on the deceased's head made the accused straightway chargeable under Section 302, R. P. C and that a view to the contrary held by the Courts below Was erroneous.
3. In reply it was contended by the learned Counsel for the respondents that the evidence was by no means unanimous that the injury found on the head of the deceased was the result of the lathi blow dealt by the accused Amma Bhat but even assuming that it was so, the act did not amount to murder as it could not be torn out of its context which shows that the blow was dealt in the heat of passion upon a sudden quarrel resulting from a water dispute in which hundreds of people were 'arrayed on either side exchanging abuses and pelting stones at each other suggesting absence of any pre-meditation and intention to kill.
4. The circumstances as found by the committing court are that there was a water dispute between the inhabitants of certain villages as a result of which they came face to face, when there was a severe exchange of hot words and abuses between the parties which rose the tempers driving them to a sudden quarrel in the course of which each party pelted stones at the other and the accused Amma Bhat dealt a lathi blow on the head of the deceased. That makes it clear that the crime was committed without pre-meditation in a sudden fight in the heat of passion and without the accused having taken undue advantage or acted in a cruel or unusual manner. That brings the case within exception (4) of Section 300, R. P. C. and the offence committed can at best be said to be culpable homicide not amounting to murder. Reference in this connection may be made to the case of Chamru Budhwa v. State of M. P. : AIR1954SC652 . There was a severe exchange of abuses in that case between the parties preceding the incident With the result that the tempers rose high and both the parties came out of their respective houses in anger. In the course of the quarrel which ensued the appellant dealt a fatal blow on the head of the deceased With lathi. It was held that the crime was committed by the appellant without meditation in a sudden fight in the heat of passion without the appellant having taken undue advantage or acted in a cruel or unusual manner and was therefore covered by exception (4) to Section 300 of the Indian Penal Code.
5. Reliance was placed on behalf of the petitioners on the decisions reported as : 1958CriLJ818 and : 1972CriLJ587 . The facts of these cases have no bearing on the instant case and are therefore distinguishable. In the first case the accused thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels of the deceased and three coils of his intestines came out of the wound and the digested food also oozed out from the cuts in its three places. There was no evidence or explanation given about why the accused thrust the spear into the abdomen of the deceased with such force that it penetrated the bowels. In such circumstances it was held that there was an intention to cause death. This is not the case here. The explanation here is more obvious than the injury. In the other case the appellant along with his companions was lying in wait to attack the deceased and when the deceased appeared, he gave a blow on his head which resulted in his death. There was no altercation or exchange of abuses between the deceased and the accused party. In these circumstances it was held that the assault was pre-meditated and the blow on the head of the deceased Was not accidental. This is obviously not the case here. The injury resulting in the death of the deceased in the instant case Was preceded not only by exchange of abuses between the parties but also by violence in the course of which each party pelted stones at the other and started quarrelling with each other.
6. In these circumstances I find no merit in this revision petition which is hereby dismissed.