IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Jagdish Vs. State of Rajasthan (D.B. CRIMINAL APPEAL No.927/2004) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 28-7-2004 in Sessions Case No.59/2004 passed by Shri Shiv Charan Bhushan, RHJS, Additional Sessions Judge (Fast Track) Karauli. Date of Judgment: May 21, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. D.G. Chaturvedi, for the appellant. Mr. Ashvini Sharma, Public Prosecutor for the State. Mr. S.K.Gupta, for the complainant. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) The appellant was the accused on the file of learned Additional Sessions Judge, Fast Track, Karauli, who vide judgment dated July 28, 2004 convicted and sentenced him under section 302 IPC to suffer imprisonment for life and fine of Rs.5000/- in default to further suffer simple imprisonment for six months. 2. The allegations against appellant were that he inflicted a blow with lathi on the head of Prabhu as a result of which he died on the spot. A written report (Ex.P-1) was handed over by Ramgilas (Pw.1) at Police Station Sapotra on December 17, 2001. On that report a case under sections 147, 148, 149, 302, 201 and 323 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Karauli. Charges under sections 302, 201 and 323 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 7 witnesses. In the explanation under Sec.313 CrPC, the appellant claimed innocence. Four witnesses were examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 3. We have heard learned counsel for the appellant, learned Public Prosecutor and learned counsel for the complainant and with their assistance scanned the material on record. 4. The prosecution case is founded on the testimony of Ramgilas (Pw.1), who in his deposition stated that on the day of incident hearing hue and cry when he reached at the place of incident he saw appellant inflicting blow with lathi on the head of his brother Prabhu, as a result of which he fell down and died on the spot. 5. Admittedly ocular evidence does not find support from medical evidence. Since dead body of Prabhu was not subjected to autopsy it is difficult to hold as to what was the nature of injury received by the deceased. Having closely scrutinised the material on record we find that there was no prior enmity between the appellant and the deceased. The incident was a sudden affair and on being provoked the appellant inflicted a single blow with lathi on the head of the deceased in the heat of passion. The appellant did not take undue advantage of situation. It can therefore be inferred that the appellant had knowledge that the blow inflicted by him was likely to cause death, even though he had no intention of causing death or such bodily injury as is likely to cause death. The appellant thus is found guilty for the offence punishable under Part II of Section 304 IPC. 6. For these reasons, we partly allow the appeal and instead of section 302 we convict the appellant under section 304 part II IPC. Looking to the fact that the appellant Jagdish has already undergone confinement for a period more than six years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Jagdish, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. The impugned judgment of learned trial court stands modified as indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/