JUDGMENT 1. - This appeal is directed against the judgment dated 12.10.1995 passed by the Sessions Judge, Rajsamand convicting the appellant Gordhan Singh of offence under Section 302 I.P.C. and sentenced him to imprisonment for life and to pay a fine of Rs. 1000/-; in default of payment to further undergo three years rigorous imprisonment. The appellant has also been convicted for offence under Section 447 I.P.C. and sentenced to three months rigorous imprisonment. Both the sentences have been ordered to run concurrently. The appellant has also preferred an appeal from Jail, which has been registered as D.B. Criminal Jail Appeal No. 519/1995. Both the appeals are heard together and disposed of by this common judgment. 2. Briefly stated that prosecution case is that an 29.8.1994 at about 12 Noon, PW. 7 Naval Singh lodged a F.I.R. Ex. R 6 at Police Station. Rajnagar stating inter alia that his mother has been killed by Gordhan Singh by lathi. He also stated that the incident was witnessed by PW. 2 Vijay Singh and PW. 6 Kunwar Singh. The accused entered in his house and struck a lathi blow on his mother. She was taken to the hospital by Narayan Singh, Gamer Singh, Hari Singh, Kunwar Singh, Nahar Singh, Nirbhay Singh Meethalal, Leeladhar etc. On this information, police registered a case for offence under Section 302 I.P.C. and proceeded with investigation. After usual investigation the police laid charge-sheet against the appellant for offences under sections 302 & 447 I.P.C. 3. The appellant pleaded not guilty to the charges against him and claimed trial. The prosecution in support of the case examined 14 witnesses and produced certain documents. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against him. He also stated that he had a dispute with Kanwar Singh & Vijay Singh with respect to grazing of cattle in the field. A Panchayat was also arranged. He was being paid money for the loss as per the directions given by the villagers. Thereafter, he returned to the field. On the same day, he was arrested by the police. Analysing the evidence on record the trial court found that the charges levelled against the appellant proved. Accordingly, he has been convicted and sentenced as noticed above. 4. It is contended by Mr. Thereafter, he returned to the field. On the same day, he was arrested by the police. Analysing the evidence on record the trial court found that the charges levelled against the appellant proved. Accordingly, he has been convicted and sentenced as noticed above. 4. It is contended by Mr. Sandeep Mehta, learned counsel for the appellant that PW. 1 Lehar Singh and PW. 13 Laxman Singh have not supported the prosecution case and as such they have been declared hostile. The trial court has committed an error on placing reliance on the testimony of PW. 6 Kunwar Singh and PW. 12 Smt. Nirmla. It is submitted that PW. 5 Kunwar Singh is a chance witness and his conduct belies his version that he had witnessed the accused causing injuries. He has read before us the statement of PW. 6 and pointed out certain infirmities. As regards PW. 12 Smt. Nirmla, it is submitted that she has not witnesses the incident. Her statement is based on hearsay. As regards the recovery, it is submitted that the trial court itself has found the evidence not incriminating as no blood has been found on the lathi. On the other hand, the learned Public Prosecutor has supported the judgment of the trial court. 5. PW. 1 Lehar Singh has stated on hearing the cries, he went to the house of Amar Singh and found his wife lying dead. She was taken to the hospital. He stated that he was not aware as to who has killed her. This witness has been declared hostile by the prosecution. The Statement of PW. 2 Vijay Singh is also almost on the same line and he has also been declared hostile by the prosecution. 6. PW. 3 Smt. Kamla is the daughter-in-law of deceased Paru Bai. She has stated that while she was in the 'Bada' for providing fodder to the buffalo, she was being informed by Lehar Singh that her mother-in-law was being assaulted by appellant Gordhan Singh. She .immediately rushed to the house. Number of people had assembled in front of the house. Her mother-in-law was lying dead. There was profuse bleeding. She was taken to the Hospital at Nathdwara. 7. PW. 4 Daulat Singh and PW. 5 Parvat Singh are formal witnesses. PW. She .immediately rushed to the house. Number of people had assembled in front of the house. Her mother-in-law was lying dead. There was profuse bleeding. She was taken to the Hospital at Nathdwara. 7. PW. 4 Daulat Singh and PW. 5 Parvat Singh are formal witnesses. PW. 6 Kunwar Singh has stated that at about 8.00 A.M. while he was passing through of the house of Paru Bai, he witnessed that appellant Gordhan Singh gave a lathi blow on the head of Paru Bai on account of which she fell down. He did not know the reason of the assault. He further stated that his brother Vijay Singh was also alongwith him. He raised a cry attracting Hari Singh, Nirbhay Singh. Leeladhar etc., Paru Bai was taken to the hospital, where she was declared dead. In the cross examination, he admitted that his cattle alongwith cattle of Gordhan Singh used to graze in the common field and there was no dispute in that regard. Thereafter, there was some dispute, which was sorted out on payment of Rs. 250/- to Gordhan Singh. He also admitted that the house of appellant Gordhan Singh is adjacent to the house of deceased Paru Bai. He denied the suggestion that he was giving false evidence on account of the dispute with regard to grazing of cattle. 8. P.W. 7 Naval Singh is a formal witness. PW. 8 Nirbhay Singh has stated that hearing the cries of Kunwar Singh, he alongwith Laxman Singh, Gamer Singh, Hari Singh, Lehar Singh etc. rushed to the house of Paru Bai. All the persons were saying that appellant Gordhan Singh has inflicted a lathi blow on the head of Paru Bai. Thereafter, she was taken to the hospital, where she was declared dead. PW. 9 Hamer Singh, PW. 11 Vijay Singh are formal witnesses. PW. 12 Nirmla is the daughter-in-law of deceased Smt. Paru Bai. She has stated that when she reached at the house, she was told that the appellant has assaulted her mother-in-law Smt. Paru by lathi on account of which she has died. P.W. 13 Laxman Singh has not supported the prosecution case and as such he has been declared hostile. PW. 14 Kesar Singh is the Investigating Officer. He has given all the details of the investigation. 9. PW. 10 Dr. P.W. 13 Laxman Singh has not supported the prosecution case and as such he has been declared hostile. PW. 14 Kesar Singh is the Investigating Officer. He has given all the details of the investigation. 9. PW. 10 Dr. S.S. Purohit stated that he conducted the post-mortem of Smt. Paru Bai and found the following injuries : (1) Lacerated injury on right hand between thumb and index finger (2) Abrasion 4 cmx3 cm. on right knee (3) Abrasion 1 cm. x 1 cm. on left knee (4) Lacerated injury on scalp He has proved the post-mortem report Ex. R 12. He also stated that in his opinion Mst. Paru died because of internal brain haemorrhage and brain injury due to forceful blow over skull. 10. PW. 6 Kunwar Singh is the only eye witness in the case. He has categorically stated that appellant Gordhan Singh gave a lathi blow on the head of deceased Paru. He also stated that within no time number of people from the locality reached on the spot hearing his cries. The only criticism levelled against this witness is that he is a chance witness. Of course it is true that he has stated that while he was passing in front of the house of Mst. Paru, he witnessed appellant Gordhan Singh giving a lathi blow on the head of Mst. Paru. It is not in dispute that this witness Kunwar Singh is not a totally stranger. He was very well known to the deceased and the appellant. There is nothing in the cross examination to discredit testimony of this witness. PW. 12 Mst. Nirmla has stated that hearing the cries of Kunwar Singh, she rushed on the spot. Kunwar Singh immediately reported to the persons, who arrived at the spot that it was Gordhan Singh, who gave lathi blow. The statement of Kunwar Singh aiso finds corroboration from the medical evidence. PW. 10 Dr. S.S. Purohit has stated that he found a head injury on the dead body of Mst. Paru. In view of this the prosecution has succeeded in establishing that Mst. Paru died of homicidal death at the hands of appellant Gordhan Singh. 11. The next question which arises for consideration is, the nature of offence committed by the appellant. The evidence shows that appellant caused single injury to deceased. Paru. In view of this the prosecution has succeeded in establishing that Mst. Paru died of homicidal death at the hands of appellant Gordhan Singh. 11. The next question which arises for consideration is, the nature of offence committed by the appellant. The evidence shows that appellant caused single injury to deceased. Out of the four injuries only injury No. 4 has been found-.to be fatal. The post-mortem report Ex. R 12 shows that there was no fracture of skull bone. The doctor has noted the injury as follows : "Injury over scalp 5 cm x 2 cm. x skin deep. Bleeding stopped. No fracture of skull done." 11. In these circumstances, it appears that incident took place all of sudden and the applicant in heat of passion caused single injury. There is no fracture on head shows that the appellant has not acted in a cruel or unusual manner. Thus, it cannot be inferred that appellant intended to commit murder of Smt. Paru Bai. The appellant can only cloth with knowledge that his act in all probability may cause death or such bodily injury is likely to cause death. Thus, the appellant's, conviction under Section 302 I.P.C. is not sustainable. He is convicted for the offence under Section 304 Part II IPC. The conviction under Section 447 I.P.C. is maintained. 12. Consequently, both the appeals are partly allowed. The conviction of the appellant under Section 302 I.P.C. is set aside. He is convicted for the offence under Section 304 Part II IPC. It is stated that the accused appellant is in jail since his arrest i.e. 30th August, 1994. Thus, he has undergone sentence for more than 6 years. The ends of justice would meet, if the sentence awarded to the appellant is reduced to the period already undergone by him. The appellant has already undergone sentence for offence under Section 447 I.P.C. The appellant shall be set at liberty forthwith, if not required in any other case.Appeal partly allowed. *******