JUDGMENT 1. This appeal is directed against the judgment of Sessions Judge, Ajmer, dated 5-2-86, whereby he convicted the accused appellant for offence under S. 304 part (II) IPC, and sentenced to seven years R. I. and a fine of Rs. 500/- and in default of payment of fine he was directed to further undergo R.I. for four months. 2. on 5th November, 1983, a report was lodged at Police Station, Ajmer Gate. Amer by Dr. V. D. Kavia, Medical Jurist, J.L N. Hospital on phone to the effect that Durgaprasad. since the deceased, has been admitted to hospital in an injured condition. Having taken down the information S. H. O. went to the Hospital. By that time Durgaprasad had succumbed to the injury and his brother Nandkishore gave him a written report wherein Mahendrasingh, Ashok and one Kishorc were shown as witnesses, who were present at the time of incident. The prosecution's story is only to the extent that when deceased was sitting alongwith aforesaid three persons, Bhagwandas suddenly came with a knife and inflicted a blow in the chest of Durgaprasad and ran away and then the story of his taking to the hospital was mentioned. Case was registered for offence under S. 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. Prosecution examined fifteen 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, Durgawati mother of accused was examined in defence who too came with a story of grapple. She came out with a motive that 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. 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 Mahendrakumar PW. 7. corroborated by medical evidence and other circumstances convicted and sentenced the accused as indicated above against which this appeal has been filed 3. After filing the appeal, it was admitted on 14.4.86, and record was called for hearing the Bail Application, but thereafter none was present to press the Application. 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. Accused presented himself in pursuance of notice and stated that he 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 had been filed on 28-9-86 and also his power, but the counsel has never cared to appear thereafter 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 agrue 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 clean chit to Shri Jai Singh for past but mentioning that since 28-9-86 he will be represented by Shri Jai Singh Rathore and his name also been shown in 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 strongly condemn this attitude towards an accused in Jail and express my displeasure. I anticipated such sort of attitude from my past experience that I may have to seek the assistance of another counsel. I had directed the Registry to appoint an amicus curiae and Registry had appointed Miss Rajesh Kandwal 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 PW. 7, Mahendrakumar who has stated that on 5-11-83 between 11.00 AM and 11 30 AM he had gone to the tin shed of Ghanshyam to convey good wishes for Deepawali and also went to residence of Durgaprasad, but it was learnt that Durgaprasad is sitting in tin shed of Ghanshyam, so he again went there and while he was returning. Bhagwandas, accused came and inflicted a scissor blow on the chest of Durgaprasad. 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 Durgaprasad does not live in this tin shed and this belongs to Ghanshyam He submits about his friendship with Durgaprasad. According to him Ashok and the accused are real brothers. Sister and mother of accused are engaged in the work of making biris. It is also stated 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 two statements. He further stated that Durgaprasad 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 Durgaprasad as to why accused has 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. He states that he did not enquire from Durgaprasad as to why accused has 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 S. 304 part (11) though I may add here that prosecution has miserably failed to prove the motive and also to bring home the nexus. However, for want of these things alone an acquittal cannot be recorded. 5. Now coming to the question of sentence, it is always the 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 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 determing the quantam of punishment or for dealing the case under S. 360 Cr. P.C. or dealing the accused under provisions of Probation of Offenders Act. In the instant case there is ample evidence on record and is also an admitted case that accused was nephew in relation of the deceased Durgaprasad and they were close friends besides this relation. The accused was 25 years of age while deceased was of 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 Durgaprasad. Demand of Rs. 100/- and refusal of it to my mind cannot be the cause. Therefore. the alternate cause attributed by mother of the accused appears to be more plausible and that is Durgaprasad 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 Durgaprasad, which could not be easily over looked by the accused. Placed in that circumstance he might have committed the crime Accused has admitted his presence and theory of grapple has been taken by him. Placed in that circumstance he might have committed the crime Accused has admitted his presence and theory of grapple has been taken by him. This also shows that accused is not a bad character. There may be truth what mother has said and he would have been compelled by circumstances 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 fit it to be dealt 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 is maintained, but the sentence is reduced to the period already undergone. He shall be released forthwith, if not required in any other case. Fine if paid by him, shall be returned to the accused A copy of this judgment will 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 plead 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.Appeal partly allowed. *******