JUDGMENT 1. - As many as four accused including the appellant were indicted before the learned Additional Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 9/2001 for having committed murder of Devjeet. Learned Judge vide judgment dated March 13, 2002 convicted and sentenced the appellant for the offence under Section 302 IPC to suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer three months simple imprisonment. Other three co-accused persons were however acquitted. 2. It is the admitted case of prosecution that the appellant inflicted a single blow with lathi on the head of Devjeet as a result of which he died. 3. As per statement of Dr. B.L. Meena (PW 15) and according to post mortem report (Ex.P/19) the deceased Devjeet sustained following three ante mortem injuries and cause of his death was come brought about as the result of antemortem injury to skull & brain which is sufficient to cause death is in the ordinary course of nature:- "1. Ditture swelling - fainal red bruise 5 X 4cm X 8cm on Rt. pelvic temporal over skull 2. Faint red bruise 3 X 2.5cm Lt. parietal area 3. Two abrasion of size 1 X 1cm each gape of 2cm in between on back of Lt. elbow fresh clotted blood." 4. Mr. Alok Sharma learned counsel for the appellant invited our attention to the following infirmities of prosecution case:- (i) In the written report (Ex.P. 3) the appellant and one Anil were shown to have inflicted injuries on the person of deceased but at the trial the injuries sustained by the deceased were attributed alone to the appellant. (ii) The alleged eye witnesses Vijendra (PW 1) and Dinesh (PW 2) named in the written report, were conspicuously absent when the Inquest report (Ex.P. 1) and Site plan (Ex.P. 2) were drawn on the date of the incident. (iii) As per their own testimony Vijendra and Dinesh were present when police arrived but their statements under Section 161 Cr.PC were recorded after two days. (iv) Vijendra and Dinesh were closely related to the deceased and they were chance witnesses and no reliance could be placed on their testimony. 5. Mr. (iii) As per their own testimony Vijendra and Dinesh were present when police arrived but their statements under Section 161 Cr.PC were recorded after two days. (iv) Vijendra and Dinesh were closely related to the deceased and they were chance witnesses and no reliance could be placed on their testimony. 5. Mr. Alok Sharma, alternatively argued that as single injury with lathi is attributed to the appellant and he did not act in unusual or cruel manner could not have been convicted under Section 302 IPC and the case of prosecution does not travel beyond Section 304 part II IPC. 6. Per contra, Mr. S.S. Rathore, learned Public Prosecutor and Mr. D.G. Chaturvedi, learned counsel for the complainant supported the impugned judgment and canvassed that the injuries on the head of the deceased were severe and fracture of the skull was caused, the appellant was rightly convicted under Section 302 IPC . 7. After having reflected over the rival submissions we find ourselves unable to discard the entire testimony of Vijendra and Dinesh. Nothing material could be elicited in their cross examination. The inconsistencies and embellishments shown by the learned counsel for the appellant are not material. However, the scenario in which the appellant has been stated by the said eye-witnesses to have given one blow on the deceased with lathi it is difficult for is us to hold that he gave the below in question either with the intention of causing murder of deceased or he could have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even or accepting the prosecution case we hold that the accused did not commit the offence under Section 302 IPC but under Part II of Section 304 IPC. 8. In K. Ramakrishnan Unnithan v. State of Kerala, JT 1999 (2) SC 235 , the accused gave stabbing blow on the deceased as a result of which intestines protruded out. In the facts and circumstances of the case it was held by their Lordships that the accused did not commit the offence under Section 302 IPC but under Part II of Section 304 IPC. 9. As a result of the above discussion we partly allow the appeal of appellant Mukesh and set aside the conviction of appellant under Section 30. IPC, instead we convict him under Section 304 part II IPC. 9. As a result of the above discussion we partly allow the appeal of appellant Mukesh and set aside the conviction of appellant under Section 30. IPC, instead we convict him under Section 304 part II IPC. The appellant is in the custody since October 20, 1998 and in our opinion the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Mukesh who is in custody shall be set at liberty forthwith if not required in any other case.Appeal Partly Allowed. *******