JUDGMENT 1. - This appeal is directed against the Judgment of the learned Additional Sessions Judge, Dholpur dated 25-2-74. I have heard arguments and perused the record. 2. The prosecution case is that Chhiddu deceased obtained a loan for accused Bhikam from Shiv Charan PW 3 upon his guarantee. Bhikam did not make the payment. So Shiv Charan demanded the money from Chhiddu. Chhiddu assembled a panchayat but Bhikam declined to have taken any loan. On 6-6-73 Chhiddu accompanied by Jai Lal PW 5 went to his house and asked him to make the payment. Bhikam said that he will make the payment at Brijpal-ka-Pura. All of them, namely, Chhiddu, Jailal, Bhikam, his brother Ram Charan, and his father Poorna then came to the thrashing floor of Nemi and Babu, exchanging hot words all through the way. The accused party was so provoked that Ram Charan gave a lathi blow on the left arm of Chhiddu and Poorna gave a lathi blow on his ribs. Bhikam took up the Lathi from his father and delivered a blow on the head of Chhiddu, Chhiddu fell down. He was first removed to the hospital at Baseri and then taken to Dholpur where he died at 6 a. m. on 9-6-73. Report of this offence having been lodged, the police investigated the matter and sent up Ram Charan and Bhikam for trial under sections 302 and 302 rea, with section 34 IPC. The learned trial Judge acquitted Ram Charan. He however, convicted Bhikam under section 304 Part II I P.C. and sentenced him to rigorous imprisonment for five years and to a fine of Rs. 500/- in default whereof to rigorous imprisonment for six months. 3. The medical examination of Chhiddu conducted by Dr. Virendra Kumar Kamthan on 6-6-73 and the post-mortem examination conducted by Dr. S. P. Saxena on 9-6-73 disclosed that there was a wound on the left side of the skull over parietal area with haematoma present in that area. There was sub-conjunctival haemorrhage on the left eye with ecchymosis of the left upper lid and an abrasion 1 x 1'on the left shoulder. Upon opening the body it was found that there was haematoma on the left side of skull There was haematoma also on its right side. The blood was clotted. There was communicated fracture of the left temporal bone with brain substance having fluid. Upon opening the body it was found that there was haematoma on the left side of skull There was haematoma also on its right side. The blood was clotted. There was communicated fracture of the left temporal bone with brain substance having fluid. There was fracture of the skull extending from the left parietal bone to the right parietal bone and also of frontal bone at its middle. Membrance and brain substance injured at site. The case of death was stated to be fracture of the temporal frontal and both the parietal bones. 4. The learned trial judge disbelieved the evidence as far as Ram Charan and Poorna was concerned. Bhikam was unarmed but as stated by Jailal PW 5 he took up the lathi from his father Poorna and inflicted blow on the head of Chhiddu, The name of this witness not doubt was not mentioned in the F. I. R. Ex. P, 6 but then the F. I R. was lodged by Aangna PW 1 who was not an eyewitness, The learned Judge held that the omission of his name in Ex. P. 6 was of consequence, The presence of Jailal and Chhiddu was even admitted, by the accused in his statement Ex. P. 20 made before the Committing Magistrate. Both Babu Singh PW 4 and Jailal PW 5 were categorical that the head injuries were caused by Bhikam. 5. A lathi was also recovered at the instance of Bhikam but the Learned Trial Judge did not believe this recovery and thought that it was a planted affair. 6. The learned Judge further found that the motive of the crime was also proved. Shiv Charan PW 3 deposed that he advanced a loan of Rs. 200/- to Bhikam at the instance of Chhiddu. When Bhikam refused to make payment, he asked Chhiddu to do so. Panchayat was assembled and the Rukha was delivered by Shiv Charan to Chhiddu asking him to make the payment. The Learned Judge found that abuses were exchanged between Bhikam and Chhiddu on account of this money and it was in the heat of passion that Bhikam unintentionally made the assault by dealing a single blow on the head of Chhiddu but the blow was dealt with a great force which ultimately killed Chhiddu. The Learned Judge found that abuses were exchanged between Bhikam and Chhiddu on account of this money and it was in the heat of passion that Bhikam unintentionally made the assault by dealing a single blow on the head of Chhiddu but the blow was dealt with a great force which ultimately killed Chhiddu. According to the Learned Judge, the blow was inflicted with the knowledge that it was likely to cause death and therefore, the offence proved was under section 304 part II. 7. I have gone through the evidence and it has been proved by the evidence of Babu Singh P. W. 4 and Jailal PW 5 that Chhiddu was responsible for the head injury. Bhikam was un-armed at the time the occurrence took place and it is evident he snached a lathi from his father and delivered it on the head of the deceased at the spur of the moment. In these circumstances, the sentence of 5 year's rigorous imprisonment seems to be rather on the high side.Consequently, I partly accept this appeal maintain the conviction of the appellant but reduce his sentence from five years to four year's rigorous imprisonment. The sentence of fine and imprisonment in default is hereby maintained. *******