JUDGMENT 1. - This appeal is directed against the judgment dated 26.5.92, passed by the Additional Sessions Judge No. 1, Alwar, by which the learned Additional Sessions Judge convicted the appellant for the offence under Section 304 Part II, Indian Penal Code and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 2,000/- and in default of payment of fine further to undergo three months' rigorous imprisonment. 2. The appellant was tried by the learned Additional Sessions Judge for committing the murder of Lallu Meena on 29.6.91 at about 1.30 p.m. in village Maujpur near Gaur Pahadi. The case of the prosecution is that on 29.6.91, at about 1.30 p.m., the appellant Lallu pushed deceased Lallu Meena and started inflicting injuries to him by Lathi. PW 2 Ram Prasad came there running and tried to rescue Lallu Meena. The accused thereafter ran away. Injured Lallu Meena received several injuries on his head and, therefore, Ram Prasad called his brother PW 11 Parmal, who came there and poured some water on the face of injured Lallu Meena. Ram Prasad went to call PW 1 Jal Singh - the Sarpanch. Sarpanch Jal Singh and other villagers came there but by that time Lallu Meena breathed his last. The report of the incident was lodged by PW 1 Jal Singh Sarpanch on 29.6.91 at 3.15 p.m. at Police Station, Laxmangarh, which is situated at a distance of three kilometers from the place of the incident. The appellant was tried by the learned Additional Sessions Judge No. 1 Alwar. The prosecution, in support of its case, examined twelve witnesses. The case of the accused, in defence, is that he and the deceased both took liquor in the house of Ram Prasad; the deceased consumed liquor in heavy quantity and fell down on stone lying on the way and received injuries and he did not commit the murder of Lallu Meena. The accused, also, examined DW 1 Dr. S.K. Garg in his defence, who was posted in the Government Dispensary, Laxmangarh, and who examined the appellant on 30.6.91 and found seven simple injuries on his person which were caused by blunt weapon. The learned trial Court, after trial, acquitted the accused-appellant of the offence under Section 302 Indian Penal Code but convicted and sentenced him for the offence under Section 304 Part II, Indian Penal Code as stated above. The learned trial Court, after trial, acquitted the accused-appellant of the offence under Section 302 Indian Penal Code but convicted and sentenced him for the offence under Section 304 Part II, Indian Penal Code as stated above. It is against this judgment that the appellant has preferred this appeal. 3. The nature of the evidence produced by the prosecution consists of the statement of the two eye witnesses, viz., PW 4 Ram Prasad and PW 11 Parmal, which is sought to be corroborated by the evidence of PW 1 Jal Singh Sarpanch, who was called by PW 4 Ram Prasad and who, alongwith the villagers, came at the place of the incident and by that time Lallu Meena breathed his last and who lodged the report at Police Station, Laxmangarh, whereupon the police came at the spot. He is, also, witness to the recoveries of certain articles. PW 3 Bhagwan Sahai is, also, a Motbir witness to the Panchnama Lash, recoveries of the blood-smeared sample soils. PW 5 Mangtu and PW 6 Girdhari are the two Motbir witnesses to the arrest of the accused and the recovery of the Lathi on the information and at the instance of the accused-appellant. PW 10 Gujar Mal is the Motbir witness to the recovery of the clothes of the deceased vide Ex. P. 8. PW 12 Hari Singh is the person who had last seen the accused going in the company of the deceased. PW 4 Mst. Manto is the mother of the deceased who has stated that on 29th, her son had gone to Gaur Pahadi to give evidence. She has, also, stated that the accused had taken Rs. 200/400/- from her son. She has, also, stated that at about 2.00 p.m. she was informed by Nadev that the dead body of her son Lallu Meena is lying in the way which leads to Gaur Pahadi near the temple. She went there running and saw her son lying dead there. PW 7 Dr. S.K. Jain was the Medical Officer Incharge, Government Dispensary, Laxmangarh, who, on 29.6.91, conducted the post-mortem on the dead body of Lallu Meena. 4. She went there running and saw her son lying dead there. PW 7 Dr. S.K. Jain was the Medical Officer Incharge, Government Dispensary, Laxmangarh, who, on 29.6.91, conducted the post-mortem on the dead body of Lallu Meena. 4. The learned trial Court, while convicting and sentencing the appellant, relied-upon the statement of PW 2 Ram Prasad - the eye witnesses of the occurrence -PW 11 Hari Singh who had last seen the deceased in the company of the accused; the recovery of the Chappals of the accused-appellant from the place of the incident lying near the dead body of Lallu Meena; the disclosure of the incident by Ram Prasad to PW 1 Jal Singh Sarpanch and the corroboration of the occular testimony of the witnesses by the medical evidence. 5. The prosecution case mainly rests upon the evidence of the eye witnesses PW 4 Ram Prasad and PW 11 Parmal, which is sought to be corroborated by the evidence of PW 12 Hari Singh who had last seen the deceased in the company of the accused and the recovery of the Chappals of the accused lying at the place of the incident near the dead body of Lallu Meena. PW 2 Ram Prasad has stated that on the fateful day, at about 12.00 in the noon, after taking his meals, he was going to the Bangalow and in the way he saw the deceased in the company of the accused-appellant near the temple of Seeta Ram. Both of them were quarrelling together. The appellant inflicted five-seven injuries by the Lathi to Lallu Meena, who, after receiving the injuries, fell down on the ground. The accused inflicted three-four more injuries to Lallu Meena while he was lying on the ground. He proceeded towards them in order to rescue Lallu Meena and on seeing him coming, the accused ran away. His brother Parmal was, also, coming behind and Parmal brought water and poured it on the mouth and nose of the deceased. He went to call the Sarpanch and when the Sarpanch and other villagers came, by that time Lallu Meena breathed his last. A lengthy cross-examination was performed on this witness but nothing could be elicited which could make the evidence of this witness unreliable. He has stated what he has actually seen. He went to call the Sarpanch and when the Sarpanch and other villagers came, by that time Lallu Meena breathed his last. A lengthy cross-examination was performed on this witness but nothing could be elicited which could make the evidence of this witness unreliable. He has stated what he has actually seen. The evidence of this witness inspires confidence and his presence at the scene of the occurrence at that time cannot be said to be unnatural in any way. 6. The evidence of this witnesses further finds corroboration from the evidence of PW 12 Hari Singh, who had last seen the deceased in the company of the accused on the fateful day at about 1.00/1.30 p.m. He has stated that on the day of the incident he was in his house and at about 1.00/1.30 p.m. the deceased and the appellant were going together in the way and passed-through his house. At that time his child was not feeling well and he was sitting out-side his house and saw the deceased and the accused going. In the evening he was informed that Lallu Meena has been murdered. The evidence of these two witnesses further finds corroboration from the medical evidence of PW 7 Dr. S.K. Jain, who performed the post-mortem on the dead body of Lallu Meena and found eight injuries caused by blunt weapon on the various parts of the corpse of Lallu Meena. 7. PW 11 Parmal is the other alleged eye witness of the occurrence.`He has not been believed by the learned trial Court as the eye-witness to the occurrence and according to the learned trial Court he came at the place of the incident after the accused had gone away and he saw the accused while going from the place of the incident after inflicting injuries to the deceased. PW 11 Parmal has stated that on the fateful day he was in his house which is situated at a distance of fifty paces from the place of the incident. At about 1.15 p.m. he was called by his brother Ram Prasad, whereupon he came out of his house and saw the accused inflicting injuries to the deceased. He saw the incident from the distance of ten paces and according to him, after inflicting injuries to the deceased, the accused ran away. At about 1.15 p.m. he was called by his brother Ram Prasad, whereupon he came out of his house and saw the accused inflicting injuries to the deceased. He saw the incident from the distance of ten paces and according to him, after inflicting injuries to the deceased, the accused ran away. His brother Ram Prasad went to call the Sarpanch and he poured water on the face of the deceased. When the Sarpanch came, by that time the deceased breathed his last. In the cross-examination, he has stated that he came out of his house and saw the accused running and when he reached at the place of the incident, by that time the accused had covered about 50 paces from the place of the incident. He has, also, admitted that he did not have any talk with the accused. This witness, in the cross- examination, has admitted that when he came out of his house, he saw the accused running and not inflicting the injuries. He is, therefore, not an eye-witness to the occurrence and had not seen the accused inflicting injuries to the deceased, and saw the accused running from the place of the incident. The learned trial Court is, therefore, justified in not believing the testimony of this witness on the point that he had seen the incident. This witness came at the place of the incident after the incident was over and the accused had already left the place of the incident. The evidence of this witness is of not much assistance to the prosecution. 8. The next incriminating circumstance against the appellant is the recovery of the Chappals of the accused-appellant from the place of the incident near the dead body of Lallu Meena. The witnesses to the recovery of the Chappals of the accused from the place of the incident are PW 1 Jal Singh Sarpanch and PW 3 Bhagwan Sahai. PW 1 Jal Singh has stated that the Chappals of the accused w/;re recovered from the place of the incident lying near the dead body of Lallu Meena, vide Ex. P. 5. Similar is the statement of PW 3 Bhagwan Sahai, who has stated that the Chappals of the accused were recovered vide Ex. P. 5 which Were left-over by the accused at the place of the incident. P. 5. Similar is the statement of PW 3 Bhagwan Sahai, who has stated that the Chappals of the accused were recovered vide Ex. P. 5 which Were left-over by the accused at the place of the incident. When the questions regarding the presence of the Chappals of the accused at the place of the incident and their recovery in the presence of PW 1 Jal Singh and PW 3 Bhagwan Sahai were put to the accused in his statement under Section 313 Criminal Procedure Code, the accused merely stated that the witnesses are telling a lie but he has not disowned the Chappals. The recovery of the Chappals of the accused, which were left-over by him while he was running, is, also, an incriminating circumstance against the appellant which shows the presence of the accused-appellant at the place of the incident at the time of the occurrence. The appellant, in his statement under Section 313 Criminal Procedure Code. has, also, admitted his presence at the scene of the occurrence alongwith the deceased but his case, in defence, is that both of them had taken liquor at the house of Ram Prasad and the deceased had consumed the liquor in excess, due to which he fell down on stones and received the injuries. This defence, put-forth by the appellant, does not inspire confidence and is not a probable story. The learned trial Court was, therefore, justified in not believing this defence version of the appellant. 9. The prosecution has, therefore, been able to prove the case against the accused-appellant and it is well established that the accused-appellant and the accused-appellant alone, is the perpetrator of the crime and the learned trial Court was justified in convicting and sentencing the accused-appellant for the offence under Section 304 Part II, Indian Penal Code. 10. The next question, which requires consideration in the present case, is what should be the appropriate sentence that should be awarded to the appellant ? Crime is a phenomenon of time, place, need and compulsion. The ultimate object of the Criminal Law is to prevent the Crime through the operation of the `principle of detterence'. The incident, in the present case, took place at the spur of moment and the appellant was having a Danda in his hand and he inflicted the injuries by it to the deceased. The ultimate object of the Criminal Law is to prevent the Crime through the operation of the `principle of detterence'. The incident, in the present case, took place at the spur of moment and the appellant was having a Danda in his hand and he inflicted the injuries by it to the deceased. It was neither a pre-meditated act nor was a result of any enmity. I, therefore, think it proper that a sentence of five years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine the further sentence of one month's rigorous imprisonment will meet the ends of justice. 11. In the result, the appeal, filed by accused-appellant Lallu, is partly allowed. The conviction of the accused-appellant for the offence under Section 304 Part II, Indian Penal Code, passed by the learned trial Court, is maintained, but, however, the sentence awarded by the learned trial Court is reduced to the period of five years' rigorous imprisonment and a fine of Rs. 1000/- (Rs. One Thousand Only) and in default of payment of fine the appellant shall further undergo one month's rigorous imprisonment. The period of imprisonment undergone by the accused-appellant during investigation, enquiry and trial, shall be set-of against the term of sentence imposed against the appellant for the offence under Section 304 Part II, Indian Penal Code.Appeal partly allowed. *******