JUDGMENT 1. - This appeal has been directed against the judgment dated 6.9.1994 passed by the learned Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act Case, Pratapgarh, whereby he convicted the appellant for the offence under section 304 Part II Indian Penal Code and sentenced him to ten years' rigorous imprisonment and a fine of Rs. 5,000/- in default to further undergo six months' rigorous imprisonment. 2. Briefly stated the relevant facts are that appellant Nathu Bhil had mortgaged his field to the deceased and did not pay the mortgage amount within the stipulated period. On 16.7.92 at about 11-12 noon, the appellant started cultivating the said mortgaged field. In the meanwhile, deceased Navala came there and asked the appellant as to why he was cultivating the said land without paying him the mortgaged amount. Thereupon the appellant inflicted a lathi blow on the head of Navala, who later on succumbed to his injury. The incident was witnessed by Chaina the son of the deceased, who later on lodged an oral report on the next day at 2.30 a.m. at Police Station Badi Sadri, whereupon a formal F.I.R. Ex. P. 2 was drawn. P.W. 9 Dr. Dinesh Vaishnav, who conducted the post-mortem examination, found a depressed comminuted fracture of temporal bone extending upto parietal frontal and occipital bone. There was tear on the meninges with extra dural and sub-dural haemorrhage and laceration of brain. The doctor opined that the cause of death was shock from the head injury. After usual investigation challan was filed in the court of learned Munsif & Judicial Magistrate, Badi Sadri Camp Mandfiya, who committed the case to the learned Sessions Judge for trial. The appellant was charged for the offence under section 302 Indian Penal Code. He pleaded not guilty. The prosecution examined as many as twelve witnesses. The appellant denied the circumstances appearing in the prosecution evidence against him, but admitted that he had mortgaged his field with the deceased and asserted that he has been falsely implicated. However he did not adduce any evidence in his defence. The learned trial Judge acquitted the appellant for the offence under section 302 Indian Penal Code but found him guilty for the offence under section 304 Part II Indian Penal Code and sentenced him in the manner detailed above. 3. However he did not adduce any evidence in his defence. The learned trial Judge acquitted the appellant for the offence under section 302 Indian Penal Code but found him guilty for the offence under section 304 Part II Indian Penal Code and sentenced him in the manner detailed above. 3. I have heard Shri Pradeep Shah, the learned counsel for the appellant and Shri H.R. Panwar the learned Public Prosecutor for the State at length and perused the record of the lower court in extenso. 4. Shri Pradeep Shah has rightly not challenged the conviction of the appellant for the offence under section 304 Part II Indian Penal Code. His only contention is that the sentence awarded to the appellant is excessive looking to the facts and circumstances of the case. According to him the appellant had inflicted only one blow by lathi and he had no intention to commit the murder of the deceased, that the appellant is under detention since 24.7.92 and thus he has already undergone sentence for a period of about two years and six months. 5. Shri H.R. Panwar the learned Public Prosecutor submits that the petitioner caused the death of the deceased and as such the sentence awarded to him is not excessive. 6. I have carefully considered the rival submissions. There are mitigating circumstances present in this case. Firstly the land in question was in the Khatedari of the appellant, which was mortgaged to the deceased some ten years ago. As per provisions of section 43 (4-A) of the Rajasthan Tenancy Act, after expiry of five years a usufructuary mortgage of the land shall be deemed to have been satisfied in full without any payment whatsoever by the mortgagor to the mortgagee and thereupon the mortgaged land shall be redeemed and the possession of the land shall be delivered to the mortgagor free from all encumbrances. 7. Therefore, on the day of incident the alleged payment of the mortgaged amount stood automatically satisfied and the appellant was authorised to cultivate his Khatedari land. However, the deceased asked the appellant not to plough the field which infuriated the latter and who in the heat of passion inflicted a single lathi blow on the head of the deceased, which resulted in latter's death. However, the deceased asked the appellant not to plough the field which infuriated the latter and who in the heat of passion inflicted a single lathi blow on the head of the deceased, which resulted in latter's death. Of course the appellant had the knowledge that by inflicting a lathi blow on the head of the deceased he was likely to cause his death. The appellant as well as the deceased are `Adivasis'. 8. In Koja v. The State of Rajasthan, 1987 R.C.C. 27 , the accused struck a lathi blow on the head of the deceased resulting his death. The doctor found a communitted fracture of left parietal and temporal bones extending upto the base of skull. The cause of death was coma due to cerebral compression as a result of intra-cranial haemorrhage. In that case the deceased expressed his inability to make payment which he owed from the accused, thereupon the accused unnecessarily became hot-headed and struck the blow. This Court found him guilty under Section 304 II Indian Penal Code and reduced the sentence of the appellant to two years' rigorous imprisonment. 9. Therefore, keeping in view the aforementioned mitigating circumstances, I am of the considered opinion that the ends of the justice will be met if the sentence of the appellant, which is positively excessive, is reduced from ten years rigorous imprisonment to the period already undergone by him and his fine is also reduced from Rs. 5,000/- to Rs. 500/-. 10. In the result this appeal partly succeeds. The conviction of the appellant for the offence under section 304 Part II Indian Penal Code is maintained. However, his sentence is reduced from ten years rigorous imprisonment to the period already undergone by him. His fine is also reduced from Rs. 5,000/- to Rs. 500/- (Rs. five hundred), in default of payment of fine he will further undergo rigorous imprisonment for two months. The Superintendent, Central Jail, Udaipur, where the appellant is lodged, be informed accordingly. The appellant shall be released forthwith, if he is not required in any other case.Appeal partly allowed. *******