JUDGMENT 1. - This appeal is directed against the judgment dated 28.10.1998, passed by the learned Additional Sessions Judge, Sojat, convicting the appellant of offence under Section 302, IPC, and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine, to further undergo 15 days' imprisonment. 2. Briefly stated, the prosecution case is that on 3.1.1995, at about 6.05 PM., P.W. 1 Jiva Ram made a statement Ex. D/1, stating inter alia, that at about 4 or 4.15 PM., his nephew Babu aged 12 years and his son Raju left the house on a cycle for going to the field. On the way, appellant Mangla Ram and Mst. Gutki (since acquitted) blocked their way. On getting down from the cycle, the appellant Mangla Ram and his wife Mst. Gutki assaulted them by Kawaria and Koont. It is alleged that Mangla gave Kulhari blow on the right side of the ear of the deceased Babu. However, on intervention of Raju, they were separated. At that time, P.W. 2 Bachna Ram also arrived. One Bhanwar Ram took Babu to the hospital on Motor Cycle. He succumbed to the injuries in the hospital. He also stated that a quarrel had taken place between them and Mangla Ram. A proceeding under Section 107, Cr.P.C., was pending between them. On account of the said enmity, the appellant Mangle and Gutki inflicted injuries to his nephew Babu with an intention to kill him. The said statement was recorded by P.W. 9 Bhagwan Singh, lncharge, Police Station, Sojat city. On the basis of the said Parcha-Bayan, FIR was registered for offence under Section 302/34, IPC. After usual investigation, the Police laid charge-sheet against the appellant and his wife Mst. Gutki for the aforesaid offences. 3. The appellants denied the charges levelled against them The prosecution, in support of the case, examined 10 witnesses. The accused persons, in their statements, under Section 313, Code of Criminal Procedure, denied the correctness of the prosecution evidence appearing against them. Analysing the evidence, the trial court acquitted Mst. Gutki. However, the learned Judge, convicted and sentenced the appellant, as noticed above. 4. We have heard Mr. G.R. Punia, learned counsel for the appellant and the learned Public Prosecutor, for the State. We have carefully perused the record and re-appreciated the entire evidence. Analysing the evidence, the trial court acquitted Mst. Gutki. However, the learned Judge, convicted and sentenced the appellant, as noticed above. 4. We have heard Mr. G.R. Punia, learned counsel for the appellant and the learned Public Prosecutor, for the State. We have carefully perused the record and re-appreciated the entire evidence. The prosecution has examined three eye witnesses, namely, P.W. 1 Jiva Ram, P.W. 2 Bachna Ram and P.W. 3 Kishna Ram. P.W. 5 Abhay Singh has not supported the prosecution case and, as such, he has been declared hostile. P.W. 3 Kishna Ram and P.W. 4 Ratna Ram are formal witnesses. P.W. 7 Gopal Singh is the Investigating Officer. He has given the details of investigation. PW. 8 Khushal Singh and 1 P.W. 9 Bhagwan Singh are Police witnesses. The third eye witness P.W. 10 Ghewar Ram has not supported the prosecution case and, as such, he has been declared hostile. The prosecution has also laid evidence with respect to the recovery of the weapon of offence. 5. P.W. 6 Dr. K.R. Chauhan has stated that he conducted the post-mortem on the dead body of Babu Lal and noticed the following injuries - "Incised wound oblique parallel to Dation mid of ⅔ of mandible 5cm x 1/2 to 1.5 cm & bone deep with fracture of mandible bone anterily at synphisis in two pieces. 2. Incisdd wound 3 cm linear through & through oblique on upper half of post side of Rt. pinna. 3. Incised wound ⅕ cmx0.3 cm to 0.3 cm on just above the tragus of Rt. ear. 4. Lacerated wound 3 cmx 1 to 2 cm x cartilage deep on scophoid fossa of Rt. ear crossing injury No. 2. 5. Incised wound oblique 3 cm x0.3 cm to 0.5 cmx bone deep on middle of Rs. post Dainclen area of Mostoid process bone exposed, 6. Swelling (Haematoma) with Depression 7 cm x3 cm to 6 cm on Rt. temporal parietal occipital region. 7. Swelling (Haematoma) 9 cmx4 to 6 cm on left part of upper parietal occipital region. 8. Lacerated wound 2 cm x 0.5 cmx bone deep just lateral to mid line 7 cm above in super portion of Rt. ear sunajing swelling. He has proved the post-morten' Report Ex. P/9. 6. PW. 1 Jiva Ram is the father of deceased Babu Lal. He has reiterated what he stated in his Parcha Bayan Ex. 8. Lacerated wound 2 cm x 0.5 cmx bone deep just lateral to mid line 7 cm above in super portion of Rt. ear sunajing swelling. He has proved the post-morten' Report Ex. P/9. 6. PW. 1 Jiva Ram is the father of deceased Babu Lal. He has reiterated what he stated in his Parcha Bayan Ex. P/1. Only improvement which he has made from his earlier statement is that he stated in the Court that he was moving behind the deceased Gordhan and his son. Raju for going to the field. 7. P.W. 2 Bachna Ram has stated that Mangla Ram and Mst. Gutki were going from field to the house and they were moving ahead of him. The distance between accused persons and the deceased was about 10 paundas. He also stated that when they reached near village, Babu, Raju and Jiva Ram were seen corning from the opposite direction. Babu and Raju were on cycle (Jiva Ram on foot). He also stated that Mangla Ram gave a Kulhari blow on the ears of Babu. Nothing substantial has been elicited from the cross- examination of both the witnesses to discredit their testimony. The statements of both the witnesses find corroboration from the medical evidence as well as the prompt FIR. 8. P.W. 7 Gopal Singh has stated that the appellant Mangla Ram was arrested on 4th of January, 1995 vide Ex.P/18. A blood-stained Kulhari was recovered vide Ex.P/18 in pursuance of the information given by him vide Ex.P/19. The recovery has been made in the presence of P.W. 3 Kishna Ram. It is proved from the evidence of P.W. 7 Gopal Singh, P.W. 8 Khushal Singh and P.W. 9 Bhagwan Singh that the Kulhari seized and sealed on the spot remained intact till it reached the Forensic Science Laboratory. This aspect has also not been seriously challenged by the learned counsel for the appellant. As per the FSL report Ex. P/13, the spots on the Kulhari are of the blood of human origin. Thus, the evidence of both the eye witnesses P.W. 1 Jiva Ram and P.W. 2 Bachna Ram is corroborated by the prompt FIR, medical evidence and the recovery of the blood stained Kulhari. It is proved beyond doubt that deceased Babu Lal died of homicidal death at the hands of the appellant Mangle Ram. 9. Thus, the evidence of both the eye witnesses P.W. 1 Jiva Ram and P.W. 2 Bachna Ram is corroborated by the prompt FIR, medical evidence and the recovery of the blood stained Kulhari. It is proved beyond doubt that deceased Babu Lal died of homicidal death at the hands of the appellant Mangle Ram. 9. Turning to the nature of the office as per the statement of P.W. 1 Jive Ram and P.W. 2 Bachna Ram the appellant gave a Kulhari blow on the ears of the deceased Babulal. P.W. 6 Dr. K.R. Charan has admitted in the cross examination that injuries Nos. 1, 2 and 3 were not sufficient in the ordinary course of nature to cause death. In view of this, it cannot be said that in inflicting Kulhari blow, the appellant intended to cause the murder of Babu Lal. He may, at the most, be clothed with knowledge that the injury caused by him, could cause death. Thus, the appellant is liable to be convicted for the offence under Section 304, Part-II, IPC, instead of Section 302, IPC. 10. Consequently, this appeal is partly allowed. The conviction of the appellant is converted from Section 302, IPC, to Section 104 Part-II, IPC. The appellant is in jail since 4th of January, 1995. Thus, he remained in jail for more than six years. He is, therefore, awarded the sentence of period already undergone by him for the offence under Section 304 Part-II, IPC. He shall be released forthwith, if not required in any other case.Appeal partly allowed. *******