JUDGMENT 1. The appellant Ghansya has been convicted by the Additional Sessions Judge, Jaipur District,Jaipur by his judgment dated 3rd August, 1988 for offence under Section 302 IPC and sentenced to life imprisonment and a fine of Rs. 100/-. Against this conviction and sentence, the appellant has preferred this appeal. 2. The prosecution story in brief is that on 9th September,1987, three ladies viz., Bhanwari (p.w.3), Mst. Darkali (p.w.4) and Mst. Bharpai (p.w.5) were returning to their house at evening time with grass. A little girl Suman aged about 3 or 4 years was also with them. She was the grand daughter of Mst. Bhanwari. At that time, the accused Ghansya came near Bharpai and asked her to come to him and if she refused, then he would kill the girl, Suman. Bharpai ran away from there. Thereupon, the accused lifted Suman and threw her on a stone. Suman was injured in the head and she died on the spot. A report about this incident was lodged by Liladhar (p.w.2) at police Station Kotputali, upon which a case was registered and investigation was conducted. 3. On post-mortem, the following was the condition of the body of Suman and injuries were as under:- "1. Lacerated wound scalp 3 cm x 1 cm bone deep in right occipito parietal region. 2. Bruise 2 cm x I cm on forehead in midline. 3. Bruise 2 cm x 1 cm just above right eyebrow in lateral part." In the opinion of the Doctor, the cause of death was shock due to intracranial hemorrhage and injury, to brain. 4. The learned Sessions Judge examined the witnesses produced by the prosecution and it may be stated here that the main witness Mst. Bharpai (p.w.5) was declared hostile as she did not support the earlier version given by her. However, the other witnesses viz., Mst. Bhanwari (p.w.3) and Mst. Darkali (p.w.4) were believed in order to arrive at the conclusion that it was accused appellant who had caused the death of deceased Suman. Considering these statements and other circumstances, the accused was found guilty of the offence under Section 302 IPC. 5. The learned counsel for the appellant has contended that the case against the accused-appellant has not been proved as the evidence against him is not reliable. Considering these statements and other circumstances, the accused was found guilty of the offence under Section 302 IPC. 5. The learned counsel for the appellant has contended that the case against the accused-appellant has not been proved as the evidence against him is not reliable. It is also submitted that the witnesses have changed the site of the occurrence, as according to the some, the incident occurred near the 'Sisam' tree while as per the other witnesses, it occurred at the entrance of the house. It is also contended that there is discrepancy in the time of lodging the FIR as Liladhar (p.w.2), who lodged the report, has stated that he had reached the police station at about 6.00 a.m. while the FIR shows that it was recorded at 10.30 a.m. On the basis of these contentions, it is argued that the case against the accused is not proved and in the alternative it is submitted that in any case it cannot be said that the accused has committed an offence under Section 302 IPC. 6. The learned counsel for the State has supported the decision of the learned Sessions Judge and contended that the case against the appellant has been proved and he is guilty of the offence under Section 302 1PC. 7. It may be stated that the learned Additional Sessions Judge has taken into consideration the discrepancy about the time of lodging the report and arrival of Liladhar (p.w.2) at the police station and his explanation is that after the inform,ant reached the police station, he was made to sit till the police was prepared to record the report and the case of the prosecution will not become false merely because of some delay in recording of the FIR. As for the place of the incident, it can be said that there is hardly a difference of a few feet in the Sisam tree and the entrance of the house and this discrepancy cannot be said to have much relevance. 8. The main thing which is to be seen is whether it was the accused-appellant who caused the death of Suman and if so, what offence can be said to have been committed by him. In this respect, the statement of Mst. Bhanwari (p.w.3) can be looked into. She has stated that she was returning with Mst. Bharpai and Mst. 8. The main thing which is to be seen is whether it was the accused-appellant who caused the death of Suman and if so, what offence can be said to have been committed by him. In this respect, the statement of Mst. Bhanwari (p.w.3) can be looked into. She has stated that she was returning with Mst. Bharpai and Mst. Darkali after bringing grass when the appellant Chansya came there and caught hold of Su man and told Bharpai that she should come to him otherwise he would beat the child. Mst. Bharpai ran away from there and upon this the appellant lifted the child, Suman and threw her on the stone. This he did 3-4 times. Suman received several injuries on account of this and there was profuse bleeding. At that time several persons collected there and they caught hold of the appellant and detained him at that place. This version is supported by Mst. Darkaii (p.w.4). Mst. Bharpai (p.w.5) has turned hostile and not supported the prosecution case but besides saying that she does not know how Suman died and who killed her, she has not given any other version. It is obvious that she does not want to state as to how Suman had died. She is concealing the truth. Hence, the other persons, who were present there and have given the manner in which the incident occurred are to be believed. Roop Chand and Satveer (p.w.6 and p.w.7 respectively) arrived at the scene of occurrence soon after the incident and they caught hold of the appellant and detained him and this also goes to show that Ghansya was the culprit and, therefore, he was detained. 9. From the evidence on record, it is proved beyond any manner of doubt that it was the appellant who threw the girl Suman on the stone and it was on account of this act that Suman received injuries and died on the spot. 10. It is to be seen as to what offence can be said to be made out from the circumstances? 11. It can be said that the appellant did not have the intention of causing the death of Suman. He is said to have done that because of the refusal of Mst. Bharpai to come to him. He had no or enmity against Suman so as to say that he wanted to cause her death. 11. It can be said that the appellant did not have the intention of causing the death of Suman. He is said to have done that because of the refusal of Mst. Bharpai to come to him. He had no or enmity against Suman so as to say that he wanted to cause her death. Learned counsel for the appellant has placed reliance on Sarabjeet Singh v. State of U.P., ( AIR 1983 SC 529 ) and contended that in similar circumstances when the accused lifted a child of four years and threw him on the ground and the child died as a result of the injuries, it was held to be an offence under Section 304 part II 1PC. In that case, it was held that the accused could be attributed with the knowledge that by his act, he was likely to cause death. The offence was held to all under Section 299 1PC and punishable under Section 304 part-II IPC. 12. Considering the circumstances of this case where in there is nothing to show that the accused had the intention of causing death of the deceased but he can be attributed only with a knowledge that by his act, he was likely to cause death. His conviction for offence under Section 302 IPC cannot be said to be appropriate but his offence would fall under Section 304 part-II IPC. 13. In the result the appeal is partly accepted. The conviction and sentence for offence under Section 302 1PC is set aside. The conviction is altered to the under Section 304 Part-II IPC. The appellant has remained in jail for over three years. This is considered to be sufficient punishment for the offence committed by him. He is, therefore, sentenced to the term of imprisonment already under gone by him. Appellant Ghansya is directed to be released forth with, if not wanted in any other case. A communication to this effect may be sent to the Superintendent, Central Jail, Jaipur immediately.Appeal Partly. *******