P. N. Goel, J. - (1.) THE only point urged by the learned counsel for the appellant Udit, resident of village Mahuris, police station Ghorawal, district Mirzapur in this appeal is that the appellant was guilty of the offence punishable under Section 304 and not punishable under Section 302 of the Indian Penal Code.
(2.) THE occurrence undisputedly took place on 21-6-1973 at about 3.30 P. M. within the limits of the village of the appellant. At that time, Km. Surpatia (PW5), aged about 8 years,, daughter of deceased Deoki, was grazing her she-buffalo and Deoki was running a plough in his nearby field. Appellant Udit brought his two she-buffalos and a Padia for grazing. A she-buffalo of Udit began to quarrel with a she-buffalo of Km. Surpatia. Udit, perhaps, with the intention of separating the she-buffalos, began to give lathi blows to the she-buffalo of Km. Surpatia. Km. Surpatia called her father. THEreupon Deoki left the plough and came up and asked the appellant not to assault his she- buffalo any more. THEreupon the appellant remarked that he (Deoki) had taken away his honour and that, therefore, he would assault him. Some exchange of words perhaps took place. Udit appellant then assaulted Deoki who was unarmed with a lathi several times. On sustaining the injuries Deoki died on the spot. Tribeni, uncle of the deceased, (PW 2), got a report written out by Rajendra Nath Singh and lodged it at the police station, 2 miles away, at 5 P. M. Irshad Ali, A. S. I. (PW 7) held inquest on the dead body and investigated into the case. On 22-6-1973 at 7 A. M. Dr. K. P. Rai held auptosy on the dead body. Following ante mortem injuries were found :
(3.) INTERNAL examination revealed that occipital bone had fractured into several pieces and membrances were lacerated under injury no. 1. In the opinion of Dr. Rai, Deoki died of head in jury. In the estimate of Dr. Rai, Deoki was aged about 45 years.;