IMPORTANT POINT
Where accused inflicted single blow on abdomen by bhala on deceased which proved fatal but in a melee in which six accused had caused lathi blows on deceased and there was no intention to cause death, offence would not fall u/s 304 IPC but u/s 326 IPC.

JUDGMENT

Santosh Hegde, J.-The appellant has preferred this appeal against the judgment of the High Court of Allahabad in Criminal Appeal No. 678 of 1980 wherein the High Court while partly allowing the appeal of 5 other appellants by altering their conviction from section 302 read with section 149 to one under section 324 IPC confirmed the conviction and sentence imposed on this appellant for an offence punishable under section 302 read with section 149 as also for offences punishable under sections 148 and 147 IPC. Brief facts necessary for the disposal of this appeal are as follows:

2. Rani Bitti, PW-1 along with her son Satti was residing in village Sahanipur within the jurisdiction of Police Station Hussainganj. It is alleged that the said Satti was married about 6 years ago but his wife stayed with him only for a short time and thereafter deserted him. PW-1 and her son Satti suspected this desertion by Satti s wife was at the instance of Ram Piare A-1 hence entertained some grudge against him. It is further stated that about 1 month prior to 21.7.1978 said PW-1 had sold some sugarcane leaves worth about Rs. 50 on credit which amount A-1 had not paid to her. Prosecution further alleges on 21.7.1978 at about 8.30 a.m. PW-1 and Satti went to the house of A-1 and demanded the money which led to a verbal altercation. At that point of time appellant (A-2) came to the house of PW-1 armed with a bhala. Noticing this PW-1 and Satti started fleeing from the house of A-1 when both A-1 and the appellant started chasing them. On the way the prosecution alleges 4 other accused persons also joined A-1 in the chase and when they reached the house of Jagdei PW-6 and started further quarrel there, said PW-6 asked them not to quarrel in front of her house hence PW-1 and Satti ran away from the said place but they were again chased by the accused persons in front of the house of Ram Adhar PW-4 and were attacked by the accused persons. In the said attack PW-1 suffered a lathi blows on her thigh and finger while deceased Sati suffered lathi blows and one incised wound on the abdomen allegedly dealt by the appellant herein with a bhala and died. The incident in question was reported to Hussainganj Police Station at about 10 a.m. by PW-1 and after investigation a chargesheet was filed against the appellant and 5 others before the 2nd Additional Sessions Judge, Fatehpur for offences punishable under sections 147, 148, 302 read with 149 IPC. The Sessions Court after trial came to the conclusion that the prosecution has established its case against A-2 the appellant herein for offence punishable under section 148 IPC hence awarded a sentence of 2 years RI for the said offence. It further convicted the appellant for an offence punishable under section 302 read with 149 IPC and sentenced him to imprisonment for life while other accused persons were held guilty for an offence punishable under section 147 and sentenced to one year RI each. They were also further convicted under section 302 read with section 149 IPC and sentenced to undergo imprisonment for life. All the sentences were directed to run concurrently. In an appeal filed against the said judgment and conviction as stated above, the High Court of Judicature at Allahabad came to the conclusion that the prosecution has established its case against 5 other accused who are not appellants before us only for an offence punishable under section 147 IPC for which the said accused persons were punished with the period already undergone and with a fine of Rs. 500. They were also held guilty for offence under section 324 IPC and for the said offence also the punishment already undergone by them was held sufficient with a fine of Rs. 1,000/-. While the appellant herein was acquitted of the charge under section 302 read with section 149 IPC but was found guilty of an offence punishable under section 304 IPC for which offence he was awarded a sentence of 7 years RI.

3. The other accused persons being sati