JUDGMENT 1. - This is an appeal by accused Bagaram who has been convicted under Section 304 Part II of the Indian Penal Code and has been sentenced to six years' rigorous imprisonment and to pay a fine Rs. 200/-, in default of payment of fine, to further suffer rigorous imprisonment for two months. 2. The story of the prosecution out of which this appeal arises is in-short-In village Khiwandi, there is a `Bada' of Mst. Radha PW 1. The house of the accused is just adjacent to the `Bada'. Smt. Radha PW 1 wanted to construct a house in the `Bada' and, therefore, on July 9, 1976, Lachhia PW 7 had been engaged by Smt. Chatru PW 6 for getting the tree of`Sandeda'. At about 11.00 in the noon, when Lachhia PW 7 was cutting the tree, one of its branches fell on the house of the accused, as a result of which, it was damaged. The Chhaja of the house of the accused fell down. Mst. Toli, wife of the accused appellant said as to why her house has been damaged and Smt. Chatru PW 6 replied that she would compensate it or rebuilt it. Thereafter, the accused appellant Bagaram and his brother Mukaram are said to have entered the `Bara' of Smt. Chutru. Accused gave three kicks on the testicles of the deceased Deva, husband of Smt. Radha PW 1. The accused thereafter ran away. A report of the incident Ex. P. 1 was lodged by Radha in police station Sumerpur District Pali and a case was registered. 3. Deva was sent to the hospital at Pali and was admitted as indoor patient. His condition became serious. He vomited and complained of pain in his abdomen. Dr. R.K. Soni PW 2 detected acute gastritis and peritonitis. Devaram died in the hospital. The following external injuries were found on the person of Devaram:- 1. On the entire surface of penis there were three bruises 1" apart from root of penis to tip, 3 mm in size. The injury was antemortem and 2-3 days old. 2. Entire skin of scrotum was bruised. Injury was antemortem and 2-3 days old. On post mortem examination, Dr. Soni found the following internal injuries,- 1. On the entire surface of penis there were three bruises 1" apart from root of penis to tip, 3 mm in size. The injury was antemortem and 2-3 days old. 2. Entire skin of scrotum was bruised. Injury was antemortem and 2-3 days old. On post mortem examination, Dr. Soni found the following internal injuries,- 1. Liver-ruptured at three places : (1) right lobe anterior side a triradiating wound 1" deep 3" wide, (2) anterior inferior border 1/2" deep 1" long upward, downward (3) lateral side anterior border 1/2" deep I" long antero posterior. 2. Spleen-Size increased. Ruptured at one place. Capsule also ruptured. Antero-laterial surface 1" x 1/2" x 1/2" deep medio lateral. In the opinion of the doctor, the cause of death was hemorrhage due to rupture of liver and spleen. 4. The accused was arrested along with two others and they were tried. They pleaded not guilty and claimed trial. The learned Additional Sessions Judge, Sirohi, convicted the accused appellant under Section 304 Part II of the Indian Penal Code and sentenced the accused appellant as aforesaid whereas the other accused persons were acquitted. 5. The contention of the learned advocate for the accused appellant is that the case rests on the solitary statement of Lachhia who does not support the case of the prosecution so far as the other two co-accused are concerned. He therefore submits that the statement of Lachhia should not have been relied upon for the accused appellant also. It is further contended that even if it be held that the accused gave kicks to the deceased, it cannot be said that the accused had the knowledge that by his act, the death of Deva will be caused and, therefore, the accused appellant cannot be convicted under Section 304 Part II of the Indian Penal Code. Learned advocate submits further that because of falling of a tree belonging to the deceased on the Chhaja of the house of the accused as a result of which, the house of the accused appellant was damaged, it gave a grave and sudden provocation to the accused, who entered the house of Deva deceased without any arm and in heat of passion, gave three kicks. Therefore, all that can be said is that the accused had caused, at the most, a grievous injury to the deceased and intended to cause a grievous injury. 6. Therefore, all that can be said is that the accused had caused, at the most, a grievous injury to the deceased and intended to cause a grievous injury. 6. Some facts are no longer in dispute, Lachhia was cutting a tree in the `Bara' of the deceased as the deceased wanted to construct a house in it. A branch of the tree fell on the house of the accused and the Chhaja was damaged. The accused went inside the `Bara' and the occurrence took place. Though Lachhia PW 7 has not supported the case of the prosecution so far as accused persons Smt. Toli and Mukhram are concerned, but so far as the accused appellant is concerned, he has completely supported the case of the prosecution. Even in cross-examination, nothing could be brought out in favour of the accused appellant and, therefore, there is no reason to disbelieve the statement of Lachhia PW 7 so far he states that the accused, after having entered the `Bara', gave three kicks on the testicles or near about portion of it to deceased Deva. The statement of Lachhia PW 7 is corroborated by other circumstances of the case. Even the accused admits that he had gone to the Bara of the deceased though he states that he only gave two slaps. Thus, the presence of the accused at the time and place of occurrence is not disputed and it is also not disputed that the accused gave beating to deceased Deva. The doctor, on examining the body of Deva deceased found that there were three bruises on the penis from top to root and that the entire skin of scrotum was bruised. On internal examination, he found that there was rupture of liver at three places and that the spleen was also enlarged. Though the doctor has stated at that times, because of the contraction of abdominal muscles, there may be rupture of the enlarged spleen as also the liver but that can only happen if the liver is also enlarged. The presence of bruises on the entire skin of the scrotum, the statement of Lachhia PW 7 go to show that kicks were given on the testicles or near about it by the accused. 7. The question is, as to what offence is made out-whether under Section 304 Part II or Section 335 IPC? The presence of bruises on the entire skin of the scrotum, the statement of Lachhia PW 7 go to show that kicks were given on the testicles or near about it by the accused. 7. The question is, as to what offence is made out-whether under Section 304 Part II or Section 335 IPC? It appears that an argument was not advanced before the learned trial court that it was under grave and sudden provocation, as a result of damage of the house of the accused because of falling of a branch of tree, that the accused went inside the `Bara' and gave kicks. It is not the case of the prosecution that the accused was wearing shoes when he gave the kicks. To my mind, if a branch of tree belonging to Mst. Radha fell on the house of the accused as a result of which the Chhaja was damaged, it was bound to give provocation, sudden and grave, to the accused. There is material on record that there was no previous enmity between the accused and the deceased; rather the relations were cordial and Devaram had agreed to leave a four feet lane in between the house to be constructed and the house of the accused. A man who goes to the house in these circumstances, & there being no evidence that he was wearing shoes, even if he gave kicks near the testicles and the abdomen, it cannot be said that the accused had the knowledge that death is likely to be caused. Under Section 335 of the Indian Penal Code, whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, is punishable with imprisonment of either description which may extend to four years or with fine which may extend to two thousand rupees, or with both. Section 335 as per explanation, is subject to the same provisions as Exception 1, Section 300. Though the spleen was enlarged and its rupture will not make a case of grievous hurt but the liver was not enlarged and, therefore, it could not have been ruptured merely by contraction of the muscles of abdomen. Section 335 as per explanation, is subject to the same provisions as Exception 1, Section 300. Though the spleen was enlarged and its rupture will not make a case of grievous hurt but the liver was not enlarged and, therefore, it could not have been ruptured merely by contraction of the muscles of abdomen. The case of the accused, therefore, is covered under Section 335 of the Indian Penal Code and I am of the opinion that in the facts and circumstances of the case, the accused appellant should not have been convicted under Section 304 Part II of the Indian Penal Code. The accused, it appears, was arrested immediately after the occurrence on 9-7-1976. It further appears that he remained in jail throughout and was only released by this Court on a second bail application on 12-5-1978. The accused has thus remained for about two years. Thus, the sentence already undergone by the accused shall meet the ends of justice under Section 335 of the Indian Penal Code. 8. In the result, I partly allow this appeal and acquit the accused appellant of the charge under Section 304 Part II of the Indian Penal Code and instead, I convict him under Section 335 of the Indian Penal Code and sentence him to the period already undergone by him. He is on bail. He need not surrender to his bail bonds which are hereby discharged.Appeal partly allowed. *******