Ranawat, J. - (1.) THIS is a jail appeal by the accused Deo Nath against the judgment of the Additional Sessions Judge, Baran dated the 21st September, 1951 by which the accused was convicted of an offence under sec. 304 I. P. C. and sentenced to seven years rigorous imprisonment and a fine of Rs. 101/- and in default six months further imprisonment. The facts of this case are that on the 2nd April, 1950 at about 9 P. M. a panch yat was held in village Ajnawar Bhuri Lal had summoned the panchayat and he explained that he was falsely accused by Deo Nath and Girdhar Nath of having illegal connection with their aunt Ganga. At the time the panchayat was going on Bhuri Lal and Deo Nath and Girdhar Nath used abusive language against each other and a scuffle ensued. At first Girdhar Lal wanted to assault Bhuri Lal but some persons intervened and he stopped. Having seen this the accused Deo Nath snatched a lathi form some body's hand and wanted to strike Bhuri Lal. Ram Narain and Nand Lal tried to intervene but when the accused struck the blow, Bhuri Lal got aside and the blow fell on the head of Ram Narain causing his death subsequently, a few hours later. The accused ran away after this and was arrested by the police a few days later. F. I. R. was lodged at the Police Station Chhipa Barod the next morning at 3 A. M. by Krishen Gopal. The dead body was examined by Dr. Pritam Singh and the cause of death was stated to be the head injury of Ram Narain.
(2.) THE accused denied both in the committing Magistrate's court and in the court of the Sessions Judge that he inflicted any blow on the head of Ram Narain. He however, admitted his presence before the panchayat but denied having caused an injury on the head of Ram Narain Under sec. 164 however, he gave a statement before Mr. Brij Balabh Singh, Second Class Magistrate, B ran, in which he confes-sed that he wanted to strike a blow on the head of Bhuri Lal but accidentally he struck Ram Narain on the head. At the trial the accused retracted his confession. The learned Additional Sessions Judge on the evidence of Krishen Gopal, Ram Kauri and Bhuri Lal held that the accused struck a blow on the head of Ram Narain and that it was not by accident that he hit Ram Narain while he wanted to strike a blow on the head of Bhuri Lal. We have examined the evidence of these three witnesses. Ram Kuari P. W. 6 has admitted in her statement that she was not present at the time of occurrence. Her statement, therefore, is not of any value. The other two witnesses Krishen Gopal and Bhuri Lal stated that the accused struck on the head of Ram Narain and that there was no occasion for him to strike Bhuri Lal at the time. But these two witnesses are near relatives of the deceased and it appears that they are more or less interested persons. They have both admitted their relationship with the deceased. In addition to these witnesses Nand Lal P. W. 2, Kaka P. W. 3, Anandi P. W. 4, Chaturbhuj P. W. 5 and Ram Kauri P. W. 6 have also been examined by the prosecution as eye witnesses. Out of these the evidence of Chaturbhuj is not of much avail as he is short sighted man and he has admitted that he cannot see during night and this occurrence is of night time. The remaining four eye witnesses have stated that the accused Deo Nath wanted to assault Bhuri Lal but Ram Narain and Nand Lal tried to intervene and while the accused wanted to strike Bhuri Lal he got aside and the blow fell on the head of Ram Narain. There is no reason to discard the evidence of these four witnesses who apparently are independent witnesses. The trial court has not stated in its judgment why the evidence of these witnesses was not believed. We are, therefore, of the opinion that the finding of the trial court in this respect is not correct that the accused intended to hit Ram Narain and unfortunately hit him on the head. The fact appears to be that the accused Deo Nath wanted to assault Bhuri Lal but as Ram Narain and Nand Lal intervened and Bhuri Lal got aside the blow instead of falling on Bhuri Lal fell on Ram Narain's head and caused his death. In the present case there is no evidence to show that accused wanted to cause such bodily injury to Bhuri Lal as was likely to cause his death. He however, struck the blow with sufficient severity to break the paraetal bone of Ram Narain's head and as the blow hit Ram Narain on the head accidentally it could not be said that the accused knew at the time he inflicted the blow that it was likely to cause death. Had the accused knowingly hit on the head of Ram Narain it could have been presumed against him that he knew that the blow was likely to cause the death of Ram Narain. The fact that it was by accident that the blow fell on the head of Ram Narain goes to show that the accused had no knowledge at the time he struck the blow as regards its consequences. Taking this view of the facts of the case the offence of the accused would be that of voluntarily causing grievous hurt. The force with which the blow was struck was sufficient to break the bones of the head of Ram Narain and it can therefore safely be said against the accused that he voluntarily caused grievous hurt to Ram Narain. A few rulings, which were cited on behalf of the accused in the trial court and which have been mentioned by the trial court in its judgment do not help the case of the accused as the facts in those cases were quite different from those in the present case. In view of the facts that have been proved in this case we are of opinion that the conviction under sec. 304 can not be mentioned against the accused and that this is a case of an offence under sec. 325 I. P. C. only. This appeal is partially accepted, and the conviction of the accused is altered under sec. 304 to sec. 325 I. P. C. and the sentence is also reduced from seven years' rigorous imprison-ment to four years' rigorous imprison-ment and a fine of Rs. 101/ -. .;