JUDGMENT 1. - This is an appeal under Section 374(2) Cr. PC against the judgment and order dated 17th September, 1985 of the learned Sessions Judge, Jaipur District, Jaipur whereby the appellant was convicted under Section 302 Indian Penal Code and sentenced to imprisonment for life with a fine of Rs. 100/-, in default of payment of fine to further undergo one month, rigorous imprisonment. 2. An FIR was lodged on 13-5-1984 by Ashok Kumar s/o Banshi deceased, Resident of Bhenslana at Police station Rainwal at 9.30 pm. It has been stated that on 13-5-1984 at about 3.00 p.m., complainant's father was sitting at the shop of Gulab Chand Kumawat and he was also standing there. Accused Amara Jat was talking to Gopu at the shop of Bodu. At that time, at the shop of Gulab, apart from the complainant, his father, Kana Ram Kumawat, Ganga Ram, Raj Singh and Bhagwan Sahai were also sitting. At that time accused Amara Ram came all of a sudden with a stick in his hand and struck 4 blows by stick on the head of Banshi, due to which Banshi fell down. Thereafter Amara Ram gave stick blows on the feet of Banshi. When the complainant asked Amara Ram not to beat his father, Amara Ram leaving his father ran towards complainant and beat him. Thereafter, the complainant ran away from there towards the Station from where he was seeing the whole incident. Raj Singh shouted that Banshi should be taken to the hospital. Thereupon Amara Ram gave lathi blows to Raj Singh also. Afterwards the complainant's uncle Hanuman and his father came on the spot and took injured Banshi to Bhenslena Hospital. The doctor advised them to take him to Jaipur. They started from Benslana to Rainwal for taking injured Banshi to Jaipur and put him in a Tonga and brought him to the Bus-stand, but between 9 and 9.50 injured Banshi died. He then took the dead body of his father Banshi to the Police Station. There-upon, a case under Section 302 Indian Penal Code was registered and investigation commenced. The post-mortem of the dead body was conducted. Injured Raj Singh was also medically examined. Site-plan of the place of occurrence was prepared and accused Amara Ram was arrested by the police. A stick was recovered at the instance of the accused. There-upon, a case under Section 302 Indian Penal Code was registered and investigation commenced. The post-mortem of the dead body was conducted. Injured Raj Singh was also medically examined. Site-plan of the place of occurrence was prepared and accused Amara Ram was arrested by the police. A stick was recovered at the instance of the accused. After investigation a challan was filed in the court of Chief Judicial Magistrate, Sambhar Lake, who committed the accused to the court of Sessions for trial on 27-6-1984. After hearing arguments of learned counsel for the accused and the learned Public Prosecutor on 8-8-1984 the accused was charged with the offence under Section 302 IPC. The accused denied having committed any offence and claimed to be tried. On behalf of the prosecution, as many as 13 witnesses were examined and documents Ex. P 1 to Ex. P. 19 were exhibited. The accused was examined Under Section 313 Cr. PC. He stated that the prosecution witnesses have given false statements against him and he claimed that he was not present at the relevant time at the where the incident took place and that he had enmity with Bodu, Raj Singh and Bhagwan Sahai and as such they have falsely implicated him in this offence. Accused examined as-many as 8 witnesses in his defence and also produced documents Ex. D 1 to D 6 on his behalf. After hearing both the sides, the learned Sessions Judge, Jaipur, District Jaipur found the accused to have committed offence under Section 302 Indian Penal Code and convicted and sentenced him as indicated above. 3. Learned counsel for the accused has argued that when the incident took place at about 3.00 p.m., there was no reason to have filed the FIR as late as 9.30 pm even though when injured Banshi was taken to Bhenslana, the Police Station Rainwal was on the way, but still no FIR was lodged deliberately at that time. He therefore argued that the FIR is not a correct version of the incident and is an after-thought, in Which accused has been falsely implicated. According to the learned counsel for the appellant the incident took place out side the shop of Bodu which is nearby the shop of that of Gulabchand. In the FIR no reason is shown why accused Amararam came all of a sudden and started beating deceased Banshi with lathi blows. According to the learned counsel for the appellant the incident took place out side the shop of Bodu which is nearby the shop of that of Gulabchand. In the FIR no reason is shown why accused Amararam came all of a sudden and started beating deceased Banshi with lathi blows. He stresses that in fact it is evident from the statement of Bhagwan Sahai recorded under Section 161 Cr. PC (Ex. D. 1) in which he has stated that Bodu had got the stones of Banshi removed, on account of which there was exchange of abuses between them and there was a quarrel. Due to this quarrel accused Amararam struck lathi blows on the head of Banshi. Amararam is the nephew of Bodu. Bhagwan Sahai (PW 6) in his statement in cross-examination has stated that accused after beating Banshi in side the shop, ran away. He has denied that there was any fight between deceased Banshi, Ram Singh and Amararam and all the 3 received injuries on account of this quarrel. He has stated that there was no quarrel between Amararam and Banshi on that day. After 10 minutes of the incident, injured Banshi was taken to the hospital. He has admitted that while going to Rainwal, on the way the Police Station comes first and thereafter the hospital. Jagdish Kumar (PW 7) in his statement recorded under Section 161 Cr. PC (Ex.D ) has stated that Amararam lives with Bodu and also works there. He has also stated that 5-6 days earlier than the day of occurrence, Banshi came to Bodu and asked him why he had got his stones removed & there was exchange of hot words and there was a quarrel between them on this account. At that time Amararam was also present there. On account of this there was a quarrel again and there was exchange of hot words and thereupon, Amararam gave beating to Banshi. In his statement, this witness has stated that on 13-5-1984 at about 2.30 p.m. while he was at his house he had heard the abuses exchanged between Banshi Amara Ram and Bodu. After quarrel, Banshi Went away to the shop of Gulabchand and sat there and Amararam and Bodu were sitting at the shop of Bodu. Thereafter he went away. PW 4 Raj Singh in his statement under Section 161 Cr. After quarrel, Banshi Went away to the shop of Gulabchand and sat there and Amararam and Bodu were sitting at the shop of Bodu. Thereafter he went away. PW 4 Raj Singh in his statement under Section 161 Cr. PC has stated that on the day of occurrence accused Banshi came all of a sudden at the shop of Gulab Chand and gave 4 lathi blows on the head of deceased. When he caught hold of accused, he gave blows on his hands, neck and back with lathis and ran away to the shop of Bodu. He also went to the shop of Bodu. Thereupon Bodu struck him on his hand with a stick. In his statement in cross-examination, he denied that there was any quarrel between Bodu, himself and Banshi. He has also denied that the name of Bodu, who is a handicapped has been substituted by the name of Amara Ram. He has stated that it is correct that after he tried to catch accused Amara Ram, he ran away towards the shop of Bodu, but he has stated that he had not gone to the shop of Bodu and has denied that Bodu had not given any stick blows on his head. He has stated that since he himself received injuries and was feeling painful on that account and therefore he did not make any telephone to the police to inform about this incident nor he told any body else to do so. He has denied that on account of quarrel with Bodu, deceased Banshi fell down on the stones, on account of which he received injuries on his head. 4. PW 10 Gulab Chand on whose shop the occurrence is said to have taken place, has stated in his statement that the shop of Bodu is about 50 yards away from his shop. He has stated that on the day of occurrence, he was giving materials to his customers at the relevant time when the occurrence took place and Kana Ram, Ganga Ram and some other persons were sitting at his shop. He has further stated that Banshi was not at his shop and he was sitting at the shop of Bodu. Banshi never came at his shop. He heard Banshi and Bodu exchanging abuses between themselves. He has further stated that Banshi was not at his shop and he was sitting at the shop of Bodu. Banshi never came at his shop. He heard Banshi and Bodu exchanging abuses between themselves. When the wife of deceased Banshi shouted, he came but of his shop and saw deceased Banshi lying on the road infront of the shop of Bodu. He further says that he did not know who gave beating to Banshi and Amara Ram was not present on the spot at that time. He further states that Raj Singh, who lives above his shop, came on the spot on hearing the shouts of wife of Banshi. He did not see Amara Ram giving lathi blows to Banshi. This witness has been declared hostile by the prosecution. He has further stated that his statement recorded in the presence of the Magistrate was given under pressure of police. He states that he had affixed his signatures on some documents as the Thanedar had told him that if he does not sign these documents, he will be involved in a false murder case. 5. Learned counsel for the appellant has therefore, argued that in fact the quarrel had taken place out side the shop of Bodu and not Gulab Chand and the place of occurrence has been wrongly shown in the FIR and that Amara Ram was not even present at that time. 6. PW 11 is another eye witnesses, who has stated that he doss not know how Banshi died and who gave beating to him. He was declared hostile and has stated in the cross-examination that he had given same statement to the police also and that portions A to B and C to D in Ex. P 10 were not stated by him. Thereupon, the witness was shown his statement recorded under Section 164 Cr.PC (Ex. P 1) before the Magistrate. He says that this statement was given by him before the Magistrate, but he had said so under the pressure of police and in fact he had not seen any such occurrence. Learned counsel for the appallant has drawn our attention to the injury report Ex. P 14, which shows that there were two injuries on the head of deceased and there are 3 injuries on the left leg and thigh of the deceased. Dr. Learned counsel for the appallant has drawn our attention to the injury report Ex. P 14, which shows that there were two injuries on the head of deceased and there are 3 injuries on the left leg and thigh of the deceased. Dr. Basant Kishore Vyas (PW 13) has stated in his statement that he had conducted the post mortem examination and found triangular lacerated wound in frontal region, which was bone deep and there was evidence of depressed fracture with multiple fragments of bone in parieto frontal region. In his opinion, the cause of death was severe head injury which caused extensive internal haemorrhage resulting in shock & death. He had also examined Rajsingh on the same day, who had abrasion on the left lateral aspect of dorsum of right palm; abrasion on medial aspect of left-arm; abrasion on left side of posterior aspect of roof of neck and abrasion on top of the right shoulder and also an abrasion on back 5" medial from left iliac-crest. All these injuries were simple in nature and were caused by blunt weapon. He has also opined in the cross examination that the injury No. 1 caused to deceased Banshi could also be caused by big stones. Learned counsel, has, therefore, stressed that it has been wrongly mentioned in the FIR that accused caused 4 lathi blows on the head of deceased as only 2 lathi blows are caused to him as is evident from the post-mortem report and the statement of PW13 Dr. Basant Kishore Vyas. Learned counsel has, therefore, drawn my attention to the statement of PW 9 Harphool Singh, Investigating Officer, who has stated in his cross-examination that during investigation on getting the shop of Gulab Chand opened. He did not find any signs of blood in side the shop except on a piece of cloth, which was taken by him in his custody. He has further stated that he cannot say whether floor of the shop had been cleaned with water. He has also stated that the Baramada was also not seemed to have been washed with water.When his attention was drawn to a remark in Ex. He has further stated that he cannot say whether floor of the shop had been cleaned with water. He has also stated that the Baramada was also not seemed to have been washed with water.When his attention was drawn to a remark in Ex. P 2 the site map, in which it was stated that the floor of the Baramada looked to have been washed with water, he explained that since he found some earth below the Baramada to be wet therefore, he had given this remark. Learned counsel for the appellant has therefore, stressed that the story in the FIR that accused Amara Ram struck lathi blows on the head of deceased Banshi in the shop of Gulabchand does not stand scrutiny of the investigation as stated above. It has been stated that the place of occurrence was the shop of Bodu where the exchange of abuses took place between Bodu, Banshi and Rajsingh and that in this fight Banshi got injured. He further argued that Amara Ram was not even present at the time of incident and he has been falsely implicated in place of Bodu. It is due to this reason that the FIR was not lodged immediately and was lodged 61/2 hours late after carefully planning to falsely implicate Amara Ram. He has also stressed that this is evident from the fact that Bodu was also injured but the prosecution has failed to explain the injuries on his person, who also got himself examined vide injury report Ex. D. 6. In this injury report, it is shown that Bodu had 4 pruises and on abrasion on posterior aspect of right fore-arm 7" below the right elbow. This clearly shows that there had been some fight in which Bodu Ram was also injured. 7. D.W. 1 Gopu has stated that the . quarrel took place near the shop of Bodu between Banshi, Raj Singh, and Bodu all of a sudden and Bodu had received injuries. He had further stilted that Bhagwan Sahai, Jagdish and Ashok were not present on the spot at the relevant time and that Balu, Ruda and Balu Mali were present at that time. 8. D.W. 2 Ramu has stated that he had gone to attend the marriage of Narain from village Sarsoan to village Solania. Along with him Lakhma, Pema, Hanuman and Amara (appellant) had also gone with him. 8. D.W. 2 Ramu has stated that he had gone to attend the marriage of Narain from village Sarsoan to village Solania. Along with him Lakhma, Pema, Hanuman and Amara (appellant) had also gone with him. This marriage took place last year 4 days before the 'Popal Puni', but he has not been able to give the relevant date of Popal-Puni. 9. D.W. Bodu has stated that on the day of occurrence at about 3.00 p.m., Banshi, and Raj Singh came to his shop with lathi, knife and stones in their hands and gave him beating and threw him out of his shop He sustained injuries on this account on his hands, feet, knees and neck. He was examined by the Doctor and he was made to sign by the Doctor in the register (Ex. D6). He further states that at the time of quarrel, accused Amara Ram was not present and gone to attend the marriage of Narain. Raj Singh went away when Banshi ran after beating him, he full down on the stones. Ashok Kumar had come after the occurrence and Bhagwan Sahai was not present at that time. Amara Ram had come on 14th and Police arrested him on that day. 10. D.W. 4 Balu Ram has stated that he knew Bodu, who was beaten in his presence. He had come to take stones from a shop near the Station, on the day of occurrence. The shop of stones is nearby that of Bodu from where he could see the quarrel. There was quarrel between Bodu Raj Singh and Banshi. Bodu was thrown on the ground and Banshi and Raj Singh were beating him. Stones and lathies were used. Banshi and Raj Singh also received injuries. Banshi fell down on the stones, which were lying there and received injuries on his head, and was bleeding on this account. He further states accused Amara Ram was not present at that time. 11. D.W. 6 Roopa Ram is the father of Narain. He states that the marriage procession of his son Narain had gone from village Sarsaon to Solania on 13-5-1984 and the marriage party came back in the morning of 14-5-1984. In the marriage procession, Amara Ram, Pema Ram, Hanuman and many other persons were there. He has also stated that Amara Ram attended the marriage and came back along with the marriage party. 12. In the marriage procession, Amara Ram, Pema Ram, Hanuman and many other persons were there. He has also stated that Amara Ram attended the marriage and came back along with the marriage party. 12. DW 7 Pema Ram has stated that the marriage of Narain took place on 14-5-1984 and Amara Ram had gone with the marriage party. Hanuman had also gone with them. They were together till 14th when the marriage party came back. He states that Ruda Ram also attended the marriage. 13. DW 8 Ruda who claims to have seen the occurrence, states that he did not see accused Amara Ram at the place of occurrence. He further states that there was -quarrel between Raj Singh, Bodu and Banshi. Raj Singh received injuries at the waiste and Bodu had also received injuries. When Banshi was running from there, he fell down on the stones and received injuries on his head. 14. Learned counsel for the appellant has on the basis of the above defence evidence, argued that accused Amara Ram was not even present at the time of occurrence and has been falsely implicated in the case in place of Bodu and, therefore, he deserves to be acquitted. He has further argued that even if accused is taken to be present at the time of occurrence, it is evident from the injuries on the person of Bodu that there was quarrel on the spur of moment and there was no intention and the accused could not be said to have any intention of causing death of deceased Banshi nor had any intention to cause such bodily injury which may be termed to be sufficient to cause death in the ordinary course of nature. He, therefore, prayed that he accused deserves to be acquitted. 15. Learned Public Prosecutor, has on the other hand argued that the prosecution has fully proved the case against accused Amara Ram and his presence is fully proved and he has been rightly convicted by the learned Sessions Judge and that the judgment and order of trial court deserves to be up held. 16. We have heard rival contentions of both the sides and have carefully gone through the evidence and documents on record. 17. 16. We have heard rival contentions of both the sides and have carefully gone through the evidence and documents on record. 17. It is clear from the evidence discussed above that there was no pre-meditated attack on deceased Banshi and it seems that there was a quarrel in which 3 persons namely Bodu, Banshi and Raj Singh received injuries. It is alleged in the FIR that accused Amara Ram gave 4 lathi blows on the head of the deceased, but from the medical report, it is evident that only 2 lathi blows were given on the head of deceased. Thereafter lathi blows were given on his legs and feet. This clearly shows that accused Amara Ram had no intention to cause death of deceased Banshi. The injuries on the person of Bodu Ram, who is a handicapped person, also indicates that, there seems to have been some quarrel near his shop. When the shop of Gulab Chand was opened, No. signs of blood were found by the Investigating Officer either on the floor or in the Verandah. The version of the incident as given in the FIR that deceased Banshi was sitting in the shop of Gulab Chand, where accused Amara Ram came and struck lathi blows on him and he fell down bleeding there and then, does not stand scrutiny of the evidence as discussed above. However, looking to the prosecution evidence, we are of the opinion that accused Amara Ram was present at the time when the incident took place and participated in the same. The quarrel came up suddenly on account of removal of stones of Banshi and the fighting followed the exchange of abuses between them. Therefore, it cannot be said that the accused had any intention of causing death of deceased-Banshi. However, since accused Amara Ram gave lathi blows on the head of deceased, it shows that he knew that hard lathi blows on the head are likley to cause death but he had no intention to cause death or to cause such bodily injuries as were likely to cause death. The accused seems to have given two lathi blows on (he head of the deceased and thereafter gave lathi blows on legs and feet of the deceased. The accused seems to have given two lathi blows on (he head of the deceased and thereafter gave lathi blows on legs and feet of the deceased. In these circumstances, we are of the opinion that the accused has committed offence of culpable homicide not amounting to murder and is liable to be convicted under Section 304, Part II, IPC. 18. Learned counsel for the appellant has prayed that since accused stands convicted under Section 304, Part II, Indian Penal Code the sentence may be reduced to the period already undergone as he is in jail since he was arrested on 13th May, 1984. In Yogendra Morarji v. State of Gujarat , AIR 1980 SC 660 their Lordships of the Supreme Court while upholding the sentence of the accused appellant under Section 304, Part II, IPC, reduced his sentence to the period of six months and imposed fine payable as compensation to the widow of the deceased. 19. For the reasons and the evidence discussed above, we ate satisfied that the judgment and order cannot be up held. 20. In the result, we partly allow the appeal, set aside the judgment and order of learned trial court convicting accused appellant under Section 302, Indian Penal Code and sentencing him to Life Imprisonment and instead convict the appellant Under Section 304, Part II, Indian Penal Code and sentence him to a period of imprisonment already under gone and a fine of Rs. 10,000/- (Ten thousand only), in default of payment of fine, he shall suffer 2 years further rigorous imprisonment. The fine if realised, shall be paid as compensation to Banasti widow of deceased Banshi.Appeal Partly Allowed. *******