Judgment V. S. DAVE, J. ( 1 ) THIS appeal is directed against the judgment of learned Sessions Judge, Ajmer, dated February 5, 1986 where-by he convicted the accused- appellant for offence under S. 304 Part (III) IPC and sentenced to seven years rigorous imprisonment and a fine of Rs. 5000/- and kin default of payment of fine he was directed to further undergo four months rigorous imprisonment. ( 2 ) ON November 5, 1983, a report was lodged at police station, Alwar Gate, Ajmer by Dr. , V. D. Kavia, Medical jurist J. L. N. Hospital on phone to the effect that Durga Prasad, since the deceased has been admitted to hospital in an injured condition. Having take down the information Station house Officer went to the hospital, by that time Durga Prasad had succumbed to the injury and his brother Nand Kishore gave him a written report where in Mahendra Singh, Ashok and one Kishore were shown as witnesses who were present at the time of incident. The prosecutions story is only to the extent that when the deceased was sitting alongwith aforesaid three persons, Bhagwan Das suddenly came with a knife and inflicted a blow in the chest of Durga Prasad and ran away and then the story of his taking to the hospital was mentioned. A case was registered for a offence under Section 302 IPC and investigation commenced. After completing the investigation a charge- sheet was submitted in the court of Chief Judicial Magistrate, Ajmer, who committed the accused to Sessions for trial. Accused pleaded not guilty to the charge and claimed to be tried. The prosecution examined 15 witnesses in support of its case. Accused denied the occurrence as mentioned by the prosecution. He took the defence of accidental injury due to grapple. According to him it was the deceased who wanted to strike him with the knife. One witness, namely, Durgawaiti mother of the accused was examined in defence who too came with a story of grapple. She came out with a motive that the deceased who is a distant relation and is a grand father tried to take liberty with his daughter, which was objected to by his son and it was because of this that deceased had intended to inflict injury on the accused. She came out with a motive that the deceased who is a distant relation and is a grand father tried to take liberty with his daughter, which was objected to by his son and it was because of this that deceased had intended to inflict injury on the accused. It is pertinent to mention that prosecution examined wife of the deceased to prove the motive which was that accused demanded Rs. 100/on loan from the deceased which was refused by the latter and this was felt bad by the accused. Learned Trial Judge relying upon the statement of Mahendra Kumar P. W. 7 corroborated by medical evidence and other circumstance, convicted and sentenced the accused as indicated above against which this appeal has been field. ( 3 ) AFTER filing the appeal, it was admitted on April 14, 1986, and record was called for hearing the bail application, but thereafter none was present to press the application. The case was adjourned from time to time, but none appeared. This court then issued a notice to the learned counsel for the appellant and also to the accused. The accused presented himself in pursuance of notice and stated that they had instructed his local lawyer Shri jai Singh to appoint a counsel in the high Court. Notice was therefore, issued by him to Shri Jai Singh Rathore, who appeared and moved an application that he was only engaged in the trial court and not in the High Court, he also filed alongwith the reply a letter from the accused showing that he had paid the fee to Shri Jai Singh only for the trial court, but he is now appointing him as his lawyer in this court also and hence he should be provided an opportunity to argue the case. Though this reply has been filed on September 28, 1986 and also the power, but the counsel has never cared to appear and represent the case. Mr. Choudhary orally stated that no fee was paid to him by Shri Jai Singh through whom he was engaged and he was not obliged to argue the case. I can only bemoan and regret on such attitude of the learned counsel in criminal case. The poor accused has been tossed from pillar to post. Mr. Choudhary orally stated that no fee was paid to him by Shri Jai Singh through whom he was engaged and he was not obliged to argue the case. I can only bemoan and regret on such attitude of the learned counsel in criminal case. The poor accused has been tossed from pillar to post. Though a letter has been obtained from accused giving a chit to Shri Jai Singh for past but mentioning since September 28, 1986 he will be represented by Shri Jai Singh Rathore and his name also has been shown hi the cause-list, but he has not cared to appear. I strongly condemn this attitude towards an accused in jail and express my displeasure. I anticipated such sort of attitude, from my past experience and that I may have to seek the assistance of one of the counsel, I had directed the Registry to appoint an amicus curiae and the Registry had appointed Miss Rajesh Khandelwal as amicus curiae who has assisted this court in going through the entire record with all sense of responsibilities and it is but for this that appeal is being disposed of by this judgment. ( 4 ) THE only eye-witness in the case is P. W. 7, Mahendra Kumar who has stated that on November 5, 1983 between 11. 00 a. m. and 11. 30 a. m. he had gone to the tin shade of Ghanshyam to convey good wishes for Deepawali and also went to the residence of Durga Prasad, but it was learnt that Durga Prasad is sitting in tin shade of Ghanshyam, so he again went there and while he was returning Bhagwandas accused came and inflicted a scissor blow on the chest of Durga Prasad. He pulled out the scissor and intended to give a second blow, but he was prevented to do so by him and, Ashok. Accused then ran way. This witness in cross examination has stated that Durga Prasad does not live in this tin shade and this belongs to Ghanshyam. He submits about his friendship with Durga Prasad. According to him Ashok and the accused are real brothers sister and mother of accused are engaged in the work of making biries. It is also stated I that they use scissor like Ex. 7, in their work. He submits about his friendship with Durga Prasad. According to him Ashok and the accused are real brothers sister and mother of accused are engaged in the work of making biries. It is also stated I that they use scissor like Ex. 7, in their work. He states that the fact of aiming second blow was told by him to the police and the Magistrate, but this fact is not mentioned in either of the two statements. He further stated that Durga Prasad had not stated anything before inflicting the injury. He also knows Radha, sister of the accused. He admits that he and Ashok both were taken to the police station and were detained in the police custody over night. He states that he did not enquire from Durga Prasad as to why accused had given him the scissor blow. This witness has been cross examined on several aspects which according to me is not very relevant for the purpose of disposal of this appeal. A perusal of the aforesaid statement leads me to concur with the findings arrived at by the trial court in the matter of conviction for offence under section 304 Part (ii) IPC though, I may add here that the prosecution has miserably failed to prove the motive and also to bring home the nexus. However, for want of these things alone an (acquittal could not be recorded. ( 5 ) NOW coming to the question of sentence, it is always most difficult task before the court in each case as there is a wide judicial discretion which the court can use. It is necessary, in my opinion, to visualise the circumstance in which the accused was placed while he had committed the crime and that fact if properly visualised leads me to arrive at a conclusion which is relevant for considering the nature of the offence and character of the offender. This would be relevant both for the purpose of determining the quantum of punishment or for dealing the case under section 360 Cr. P. C. or dealing the accused under the provisions of Probation of Offenders Act. In the instant case there is ample evidence on record and is an admitted case that accused was nephew in relation of the deceased Durga Prasad and they were close friends besides this relation. P. C. or dealing the accused under the provisions of Probation of Offenders Act. In the instant case there is ample evidence on record and is an admitted case that accused was nephew in relation of the deceased Durga Prasad and they were close friends besides this relation. The accused was 25 years of age while deceased was 24 years of age. This fact has not been brought on record as to what was the immediate or the remote cause for going to the extreme of inflicting a scissor blow to Durga Prasad. Demand of Rs. 100/- and refusal of it to my mind cannot be any cause. Therefore, the alternate cause attributed by mother of the accused appears to be more plausible and that is Durga Prasad tried to humiliate the sister of the accused which made the accused furious and it is in that extreme reaction to the nefarious activity of Durga Prasad which could not be easily overlooked by the accused. Placed in that circumstance he might have committed the crime. The accused has admitted his presence and theory of grapple hall been taken by him. This also shows that accused is not a had character. There may be truth in what mother has said would not have been compelled, by circumstance to commit the crime and If this circumstance would have been objectively taken note of by learned Sessions Judge after obtaining the report of the probation officer, possibly the Court of Sessions itself would have considered the case to be fit it to deal with under the provisions of Probation of Offenders Act. But that stage having gone and now the accused being in jail since 1983, I deem it proper to reduce his sentence to the period he has already undergone. This in my opinion would meet the ends of justice. ( 6 ) IN the result, appeal is partly allowed, the conviction of the accused-appellant is maintained but the sentence is reduced to the period already undergone by him. He shall be released forthwith, if he is not required in any other case. Fine if paid by him, shall be refunded to the accused. ( 6 ) IN the result, appeal is partly allowed, the conviction of the accused-appellant is maintained but the sentence is reduced to the period already undergone by him. He shall be released forthwith, if he is not required in any other case. Fine if paid by him, shall be refunded to the accused. A copy of this judgment shall be sent to the Chairman, Bar Council of Rajasthan for consideration as to what should be the course of action in the cases where the learned counsel either pleads no instructions in the criminal cases or they do not appear despite their names appearing in the cause list without seeking the permission of court to withdraw from the case.