Judgment

BHAGWATI, J. : In this appeal with special leave we are only concerned with the question whether the offence committed by the Appellant falls under Section 302 or Section 304 of the Indian Penal Code.

2. The Appellant along with his father Budhwa and his brother Damru was charged with having committed the murder of one Tiharu who was a cousin of Budhwa. The prosecution case was that about the time of night meal on the 26th May 1951 there was an exchange of abuse between the deceased and the three accused.

The three accused went over to the courtyard of the deceased with lathis in their hands. Damru threw a lathi towards the deceased and the deceased shouted out that he was struck and advanced a step or two towards the accused. The Appellant dealt a blow on the head of the deceased with the lathi in his hand. As a result of the blow the deceased fell down and bled from the injury on the head. After he fell down Budhwa dealt a blow to the deceased and all the three accused ran into their house.

3. The injury inflicted by the Appellant on the head of the deceased proved fatal and both the Courts below came to the conclusion that the Appellant was guilty of the offence under Sect