JUDGMENT 1. - This appeal is directed against the judgment dated 29-10-12 passed by the learned Sessions Judge, Bikaner, by which appellant Raju Ram was convicted for the offence under Section 302 IPC and sentenced to imprisonment for life. 2. Briefly stated the prosecution story is that in the intervening night of 16 and 17 of August, 1981 at about II p.m Kripa Ram, PW 2 came to Moti Ram, PW 10 and informed the former that Raju Ram, appellant and his son Deepa Ram (since acquitted by the trial court) had given a beating to Bhanl Ram and the injured Is lying on a cot In his court yard. Moti Ram, Deda Ram, Gop Singh and Kriparam went to the house of Bhaniram and found him lying on a cot in injured condition. Rajuram, appellant and his son Deeparam were also sitting there. On interrogation, Sugni, PW 5, wife of Bhaniram informed that there was a quarrel amongst her husband Bhaniram, Rajuram and Deeparam and Bhaniram sustained injuries. Motiram asked Rajuram and Deeparam as to what had happened and Rajuram told before the persons present there that upon a petty quarrel he inflicted lathi blows which caused injury to his brother Bhaniram but he had no intention to cause any injury to him. Motiram went to Police Station, Nokha and lodged the report with Kalyan Singh, PW 12. Kalyan Singh, Incharge, Police Station, Nokha, went to the site and conducted necessary investigations. At the requisition of police, PW 9, Dr. Nathmal Duggar conducted the autopsy over the dead body of Bhaniram and prepared postmortem examination report Ex. P 14. In the opinion of Doctor, the cause of death was head injury caused by some blunt object. During the course of investigation one 'Arnia' was recovered in pursuance of the information furnished by appellant Rajuram and one lathi in pursuance of the information furnished by co-accused Deeparam. 3. Upon completion of necessary investigation, charge-sheet against Rajuram and Deeparam was filed in the court of Munsif and Judicial Magistrate Nokha. The learned Magistrate finding a case exclusively triable by the Court of Sessions, committed the case to the Court of Sessions Judge, Bikaner. The learned Sessions Judge charge-sheeted the appellant and co-accused Deeparam under Sections 302 and 302/32 IPC and recorded their plea. Both of them denied the charges and claimed to be tried. The learned Magistrate finding a case exclusively triable by the Court of Sessions, committed the case to the Court of Sessions Judge, Bikaner. The learned Sessions Judge charge-sheeted the appellant and co-accused Deeparam under Sections 302 and 302/32 IPC and recorded their plea. Both of them denied the charges and claimed to be tried. Prosecution examined 13 witnesses in all to substantiate its case. The accused in their statements under Section 313 denied the allegations levelled against them and stated that because of enmity with Motiram on account of election, the two witnesses, at the instance of Motiram, had deposed against them. The learned Sessions Judge did not believe the prosecution evidence against Deeparam and acquitted him. The learned Judge, however, found the case against Rajuram established and passed the judgment of conviction against him as stated earlier. 4. We heard Mr. Suresh Kumbhat, Amiens Curiae for the appellant and Mr. L.M. Lodha for the State. 5. At the very outset it may be stated that there is no direct evidence against the appellant. The sole witness on which the prosecution based its case was Sugni, PW 5, wife of Bhaniram deceased. She had been declared hostile by the prosecution as she had stated that she was not present at the place of occurrence. The learned Judge has based the conviction on the extra judicial confession of Rajuram coming forth from the statements of PW I Pcmaram PW 2 Kriparam, PW 3 Gap Singh, LW 10 Motiram and PW I I Dedararn. All these witnesses have stated that on interrogation Rajuram disclosed that there was not altercation between him and his brother and a petty quarrel took place and during that quarrel Bhaniram received injuries at his hand with a stick. He stated before them that he had no intention to cause any particular injury what to talk of any serious injury so as to cause his death. This extra judicial confession has been corroborated to some extent by the statement of Sugni, PW 5 that at about sun set on 16th there was some quarrel on account of the she goats of Rajuram entering the field of Bhaniram. She has also stated that there was some quarrel between the daughters of Bhaniram and Rajuram and that might be the reason for the quarrel between the two brothers. She has also stated that there was some quarrel between the daughters of Bhaniram and Rajuram and that might be the reason for the quarrel between the two brothers. From the evidence on record, it cannot be inferred that there was any pressure upon the appellant to make any confession before the persons assembled there and, therefore, the extra judicial confession has been rightly taken to be voluntary statement of the accused by the learned trial Judge. 6. The pertinent question arising for determination is whether on the extra judicial confession by the appellant, his conviction under Section 302 IPC is justified. The learned Amicus Curiae emphatically argued that the facts and circumstances of the case denote that the quarrel even if any was on a petty matter and the intention of the appellant could not be to cause the injury on the head, which led to the death of Bhaniram. The learned Public Prosecutor does not dispute the position that the weapon of offence was a lathi and the facts and circumstances do not disclose that the appellant had intended to cause injury on the vital part of body which resulted in the death of Bhaniram. 7. In these circumstances, looking to the weapon used and the circumstances leading to the quarrel, we are of the opinion that the case of the appellant does not fall within the ambit of Section 302 IPC. In our opinion, the case of the appellant comes under Section 304 Part II I IPC because he cannot be attributed intention to cause such bodily injury to Bhani Ram, which could have caused his death. All that can be attrit I bated to him is that while inflicting lathi blows, he had the knowledge that his act might cause such bodily injury to Bhaniram, which may result in I his death. We, therefore, hold Rajuram guilty for the offence under I Section 304 Part It IPC. He was arrested vide Ex. P. 4 on 17-8-81 and I is in custody since then. In our opinion, ends of justice would meet if he is sentenced to the period he had remained in custody so for the offence I under Section 304 Part II IPC. 8. Consequently, the appeal for Rajuram is partly allowed. He was arrested vide Ex. P. 4 on 17-8-81 and I is in custody since then. In our opinion, ends of justice would meet if he is sentenced to the period he had remained in custody so for the offence I under Section 304 Part II IPC. 8. Consequently, the appeal for Rajuram is partly allowed. His conviction and sentence under Section 302 IPC are set aside and he is convicted under Section 304 Part II IPC and sentenced to rigorous imprisonment for the period he had remained in custody so far. He is in jail, He will be set the to liberty, if not required in any other case.Order accordingly. *******