JUDGMENT 1. - The appellant Jai Singh was indicted by learned Sessions Judge, Jhunjhunu in Sessions case No. 23/96 for having committed murder of Rohitash. He has been convicted under Section 302 IPC vide its judgment dated February 1, 1975 and sentenced to undergo imprisonment for life. Against this judgment of conviction and sentence, the present action for filing the appeal has been resorted to by the appellant. Alongwith the appellant, co-accused Sumer Singh and Smt, Supyar W/o Shri Jai Singh were also tried for the offence under Section 302/34 IPC, but they have been acquitted by the trial Court. 2. Briefly stated the prosecution case is that PW 4 Daulat Ram S/o Hansram, by caste-Jat, R/o Soiana submitted a written report Ex.P. 5 to SHO, RS. Chirawa (District Jhunjhunu) at 5.30 A.M. on November 11, 1995 with the averments that yesterday i.e. on 10.11.1995 at about 10.00 RM. Phoolan.,*.. C, Kaluram, by caste-Jat, R/o Govla had taken his nephew Rohitash S/o Richpal with him stating that his father was wrongly making way through the field of his nephew Jai Singh and, therefore, he was called by Jai /Singh to inspect the site. After sometime, on hearing Rohitashs cries from the side of Jai Singhs house, Dinesh S/o Chetram, Sumitra D/o Richpal and Site W/o Mahesh went to the house of Jai Singh and found that Jai Singh, Sumer Singh and Smt. Supyar were casing injuries with Gandasi and Lathies on the person of Rohitash in his room. Thereafter he was also informed by his nephew Dinesh about the incident at 11.00 P.M. He himself went to the house of the Jai Singh and found Rohitash injured in a room. There were many injuries on his head. No other person was present there. Thereafter Rohitash was taken to the hospital located at village Chanana but he was declared dead by Dr. Vidhyadhar Bajiya, Medical Officer, Primary Health Centre (PHC), Chanana. On the basis of this written report, a formal F.I.R. Ex.P6 was written and the SHO, RS. Chirawa registered a case under Section 302 IPG and investigation commenced. In the course of investigation, the Investigating Officer, PW 24 Bhishmraj Arya reached on the spot on the same day and prepared Site Plan Ex.P1. On the basis of this written report, a formal F.I.R. Ex.P6 was written and the SHO, RS. Chirawa registered a case under Section 302 IPG and investigation commenced. In the course of investigation, the Investigating Officer, PW 24 Bhishmraj Arya reached on the spot on the same day and prepared Site Plan Ex.P1. A stone slab stained with blood was removed form the floor of the room where incident had taken place and it was seized and sealed by the I.O. vide Seizure Memo Ex.P3. From the spot the I.O. went to the hospital, Chanana where the dead body of Rohitash was lying and prepared Inquest Report Ex.P2. Bushirt, Baniyan, Trouser, Chaddi, Leather Sandal and woolen Jarsi (Sweater) which the deceased was wearing at the time of the incident were also seized and sealed vide Ex.P4. Autopsy on the dead body of Rohitash was conducted on November 11, 1995 at 12.30 P.M. by PW 21 Dr. Vidhyadhar Bajiya and he prepared post-mortem report Ex.P16. Photographs of the dead body were also taken. Statements of the witnesses were recorded under Section 161 Cr.RC.The appellant Jai Singh, co- accused Sumer Sigh and Smt. Supyar were arrested. Baniyan which the appellant Jai Singh was wearing at the time of his arrest, was seized and sealed by the I.O. vide Seizure Memo Ex.P13. On the disclosure statement Ex.P50 and at the instance of the appellant Jai Singh, spear (barchi) was recovered from a well situated near village Novda and it was seized and sealed vide recovery memo Ex.P14 by the Investigating Officer. Co-accused Smt. Supyar was also also medically examined by Dr. Vidhyadhar Bajiya and he prepared injury report Ex.D6. On completion of investigation, chargesheet was laid in the Court of Judicial Magistrate, Chirawa, who committed the case to the Court of Sessions Judge, Jhunjhunu. 3. Charge under Section 302/34 was framed against all the three accused who denied the charge and claimed to be tried. 4. The prosecution examined as many as 24 witnesses in support of its case. In their statements recorded under Section 313 Cr.RC., the appellant and other two co-accused stated that in the fateful night at around 11.00 P.M. Rohitash came at their house alongwith two other unknown persons who broke the door open and entered the room in which Jai Singh and his wife Supyar were sleeping. In their statements recorded under Section 313 Cr.RC., the appellant and other two co-accused stated that in the fateful night at around 11.00 P.M. Rohitash came at their house alongwith two other unknown persons who broke the door open and entered the room in which Jai Singh and his wife Supyar were sleeping. Smt. Supyar also stated that the deceased Rohitash wanted to commit rape on her, when she retreated, Rohitash caused an injury with sharp weapon on her left head. Thereafter her husband caused injuries to Rohitash. Rohitash was drunk at that time. Jai Singh also stated that when after having entered his house Rohitash started quarrelling, he gave a spear blow on the person of Rohitash. Thereafter he went to the house of his uncle Ramkumar where Mahesh, brother of Rohitash was present and he informed Mahesh about the incident. The appellant Jai Singh further stated that he didnt know what was done to his wife Smt. Supyar by Rohitash. No witness was examined in defence. 5. Learned Sessions Judge, on hearing the final submissions, convicted and sentenced the appellant Jai Sing has indicated here-in-above. Co-accused Sumer Singh and Smt. Supyar have been acquitted by the trial Court and the State has not filed any appeal against their acquittal. 6. We have heard learned counsel for the appellant, learned Public Prosecutor and with their assistance, carefully scanned and scrutinised the material on record. 7. PW 21 Dr. Vidhyadhar Bajiya stated on oath that on November 11, 1995, he was posted as Medical Officer, PHC, Chalana and on that date at 12.30 RM., he conducted post- mortem examination on the dead body of Rohitash S/o Richpal Jat, R/o-Solana, PS Chirawa and found the following external and internal injuries : (1) Abrasion 10cm. X 1/2 cm. at inter scapular region covered with bright red scab of clotted blood. Obliquely placed. (2) Abrasion 7cm. X 1/2cm. on right scapular region covered with bright red scab of clotted blood. Obliquely placed. (3) Incised wound 6cm. X 3cm. X 4.5 cm. on right shoulder superiorly smooth, clean cut margins. Ever led edges red swellen adherent with blood and lymph. Spoutive of blood (clotted) around wound present. Spindle in shape. On dissection there is cut of Rt. acromion process Rt. greater tuberosity of humerus. Cut margins sharp scalp of dried clot is present. (4) Abrasion 7cm. X 0.3cm. X 4.5 cm. on right shoulder superiorly smooth, clean cut margins. Ever led edges red swellen adherent with blood and lymph. Spoutive of blood (clotted) around wound present. Spindle in shape. On dissection there is cut of Rt. acromion process Rt. greater tuberosity of humerus. Cut margins sharp scalp of dried clot is present. (4) Abrasion 7cm. X 0.3cm. in left hypochondrium region covered with bright red scab, obliquely placed. (5) Bruise 11.5 cm. X 1/2 cm. on Rt. lower 1/2 of chest anteriorly redish blue in colour, obliquely placed. (6) Bruise 13cm. X 1/2cm. on chest anteriorly, obliquely placed. Redish blue in colour. (7) Bruise 16cm. X 1/2cm. left lower 1/2 of chest anteriorly redish blue, obliquely placed. (8) Incised wound 3cm. X 2cm.Xbonedeep on right side of forehead involve medial ⅓rd eyebrow. There 1s fracture of frontal bone involving super orbital part also. (9) Incised wound 5cm. X 1cm.Xbonedeep on left side of forehead slightly curved, spindle shaped extending medial ⅓rd of left eyebrow to base of nose. Edges everted smooth adherent with clotted blood and lymph. Fracture of left frontal bone and left nasal bone. Through this brain matter protruding spouting of blood around the wound present. (10) Incised wound 3cm. X1,5cm. X bone-deep on right subocupital region, edges red swellen smooth, everted spindle shaped, adherent with clotted blood and lymph. Fracture of occipital bone. (11) incised wound 2cm. X1 /2cm X scalp-deep. Spindle shaped, clean cut everted margin, edges red, swellen clotted blood present, obliquely placed. (12) Incised wound 7cm. X2cm. X3cm. in sub-occipital area, clean cut, everted edges clotted blood present in and around the wound with compound fracture of occipital bone through brain matter protruding, obliquely placed. (13) Incised wound 5cm. X. 1 cm. X bonedeep. Right occipito temporal region with fracture of rights occipito temporal bone. Clean cut wound, spindle shaped, everted edges, covered with clotted blood and lymph, obliquely placed. (14) Incised wound 5cm, X 1/2cm. X bonedeep right tempo parietal area with fracture of right temporal ad parietal bones through which brain matter protruding. Wound spindles shaped, everted edges adherent with clotted blood and lymph. Clean cut, obliquely placed. (15) Incised wound 4cm. x 1 cm. X bone-deep occipital area slightly curved with fracture of occipital bone fragment present at site, compound type wound edges clean cut, spindle shaped, adherent with clotted blood. (16) Incised wound 11 cm. X 3cm. Wound spindles shaped, everted edges adherent with clotted blood and lymph. Clean cut, obliquely placed. (15) Incised wound 4cm. x 1 cm. X bone-deep occipital area slightly curved with fracture of occipital bone fragment present at site, compound type wound edges clean cut, spindle shaped, adherent with clotted blood. (16) Incised wound 11 cm. X 3cm. X 3.5cm. clean cut, spindle shaped, smooth edges adherent with clotted blood and lymph. Margins everted in right occipito temporal region. Upper end compound extends upto crush of helix of pinna, right side at upper ⅓rd and middle ⅓rd junction, pinna cut, compound communitted fracture of occipital bone and right temporal bone involving petrons part of temporal hair. .Sharply cut spoutting of clotted blood present, wound obliquely placed. (17) Lacerated wound 3cm.Xlcm.X2cm. right parietal region, margins irregular and undermined irregular rounded. Bruise of surrounding and underlying tissue present with fracture of depressed type on right parietal bone. Fracture fragment present at the site, fracture compound type through which brain matter protruding. (18) There was tear of all three membrances at right and left frontal lobe. Right parietal lobe, right temporal lobe, both occipital lobes of brain. There was extra vasation of clotted blood in and around and underneath the fracture sites. There was dural extra dural, sub archnoid haemorrhage present. Intracerebral haemorrhage at right and left frontal lobe of brain, right occipital, parietal and temporal lobe, clotted blood in all three cranial fossa present. Tear of 7cm. X 1/2 cm. size at right occipito temporal lobe of brain. Tear present over right parietal iobe of brain, haemorrhage also present. 8. Dr. Bajiya also stated that all the injuries were ante- mortem in nature. The case of death was haemorrhage and shock which led cardio vascular and respiratory failure. All the injuries were sufficient to cause death in the ordinary course of nature. Death occurred within 12 to 24 hours prior to post-mortem examination. He prepared post- mortem report Ex.P16 which bears his signature. Injuries were caused by sharp and blunt weapons. 9. Learned counsel for the appellant has not challenged the truthfulness of Dr. Bajiya and, in our opinion also, he is a reliable witness and his testimony proves that the deceased Rohitash met with the homicidal death. 10. He prepared post- mortem report Ex.P16 which bears his signature. Injuries were caused by sharp and blunt weapons. 9. Learned counsel for the appellant has not challenged the truthfulness of Dr. Bajiya and, in our opinion also, he is a reliable witness and his testimony proves that the deceased Rohitash met with the homicidal death. 10. In the written report Ex.PS, Dinesh, Sumitra and Sita were named as eye-witnesses of the incident but learned Sessions Judge, after having examined their testimony thoroughly and minutely has come to the conclusion that they had not seen the accused causing injuries to Rohitash but they reached on the spot after the beating and at that time no accused was present on the spot. From the house of the appellant, Rohitash was taken to the hospital but he was declared dead by the Doctor. Thus there is no eye-witness of the occurrence against the appellant. But from circumstantial evidence adduced by the prosecution it stands proved beyond reasonable doubt that the stands proved beyond reasonable doubt that the deceased Rohitash was killed by the appellant. Rohitash was found in injured condition in the house of the appellant. This fact is established by the prosecution evidence and learned counsel for the appellant also has not challenged this fact. According to the version of PW 7 Smt. Sumitra, PW 13 Smt. Sita and PW 20 Dhannaram @ Dinesh when they reached inside the house of the appellant, they found Rohitash there having injuries on his person. These witnesses get corroboration from the testimony of PW 2 Mahesh Kumar who also stated that on receiving information from Sita and Sumitra he also went to the house of the appellant and found Rohitash lying there. Same is the testimony of PW 4 Daulat Ram, PW 8 Satyavan, PW 10 Rajendra Singh and PW 11 Baibir. Apart from these statements, when the Investigating Officer reached on the spot he also found blood on the floor of a room of the appellants house. Thus the prosecution has succeeded in proving that the incident of causing death of Rohitash took place in the house of the appellant Jai Singh. Apart from this circumstance as stated above, the appellant Jai Singh admitted in his statement recorded under Section 313 Cr.RC. that he had caused injuries on the person of Rohitash. Thus the prosecution has succeeded in proving that the incident of causing death of Rohitash took place in the house of the appellant Jai Singh. Apart from this circumstance as stated above, the appellant Jai Singh admitted in his statement recorded under Section 313 Cr.RC. that he had caused injuries on the person of Rohitash. Although learned Sessions Judge has laos held proved that the deceased was taken to the house of the appellant from his house by PW 16 Phoolaram but in our opinion, this finding is not correct because Phoolaram has not supported the prosecution and he has been declared hostile by the prosecution. But from the fact that the incident took place in the house of the appellant, the deceased was found having injuries on his person in one of the rooms of the appellants house and admission of the appellant made in his statement recorded under Section 313 Cr.RC., in our considered opinion, it stands proved that the appellant had caused the death of Rohitash by causing injuries with sharp weapon. 11. Now the question for consideration arises as to what offence has been committed by the appellant. He has been convicted under Section 302 IPC by the learned Sessions Judge. Learned counsel for the appellant has submitted that from the prosecution evidence it is clear that the deceased had entered the room the appellant after having broken the door open at about 10.00 RM. in the night. He was under intoxication at that time and this fact is clear from the testimony of PW 21 Dr. Vidhyadhar Bajiya who conducted autopsy on the dead body. Thus the deceased committed an offence of house breaking by night and, therefore, the appellant had a right of private defence of property and in exercise of that right he caused the death of Rohitash and in these circumstances, the appellant did not commit any offence. Learned counsel has further contended that the deceased had entered the house of the appellant to commit rape on Smt. Supyar, wife of the appellant Jai Singh and to satisfy his lust he made attempt to commit rape, but any how Smt. Supyar succeeded to save herself. Learned counsel has also urged that the deceased also caused injuries on the person of Smt. Supyar and on medical examination by PW 21 Dr. Learned counsel has also urged that the deceased also caused injuries on the person of Smt. Supyar and on medical examination by PW 21 Dr. Vidhyadhar Bajiya, one incised wound was found on her upper arm, therefore, in exercise of the right of private defence of the body of his wife Supyar, the appellant caused injuries on the person of the deceased Rohitash and no offence was committed by him. in alternate, learned counsel has contended that no case under Section 302 IPC is made out against the appellant. At the most he can be held guilty under Section 304 Part I IPC. He may be held guilty for exceeding his right of private defence of property. Learned Public Prosecutor has contended that there is no evidence on record to show that the deceased had entered the house of the appellant to commit rape. He has also submitted that no weapon belonging to the deceased was seized by the Investigating Officer to prove that the deceased was having a weapon and, therefore, it cannot be held that the deceased had caused incised wound on the person of Smt. Supyar. Learned Public Prosecutor has submitted that the injury found on the person of Supyar at the time of her medical examination was probably caused by the appellant so that he may taken the plea of causing injuries to the deceased in exercise of the right of private defence of the body of his wife. But learned Public Prosecutor has also agreed that in the facts and circumstances of the case, the deceased can be termed to be a trespasser who had committed an offence of house breaking by night, but his contention is that the appellant did not have a right of self defence to the extent of causing death. 12. We have given our thoughtful consideration to the aforementioned submissions. As regards rights of private defence of the body available to the appellant there is no evidence on record to show that the deceased was having lathi or any other weapon with him when he came at the house of the appellant. No such suggestive question was asked to any of the prosecution witnesses who deposed that on the fateful night they had gone to the house of the appellant and found the deceased Rohitash in an injured condition. No such suggestive question was asked to any of the prosecution witnesses who deposed that on the fateful night they had gone to the house of the appellant and found the deceased Rohitash in an injured condition. No weapon belonging to the deceased was seized by the Investigating Officer from the house of the appellant. No weapon was given to the Investigating Officer by the appellant or any other person stating that the deceased had entered the house having that weapon. The appellant Jai Singh has not stated in his statement recorded under Section 313 Cr.RC. that the deceased was having a weapon and he had inflicted an injury on the person of his wife. It is true that one incised wound was found on the upper arm of Smt. Supyar wife of the appellant on medical examination but looking to the facts stated above it cannot be held that the deceased Rohitash was having a weapon when he entered the house of the deceased and he caused an injury on the person of the Smt. Supyar. As regards attempt to commit rape on Smt. Supyar, no suggestive question was put to any of the witnesses produced by the prosecution in this regard. The appellant also has not stated in his statement recorded under section 313 Cr.P.C. that the deceased had also made attempt to commit rape on his wife. As per the appellants statement he does not know as to what was done with his wife by the appellant. Smt. Supyar could appear in defence and stated that the deceased had attempted to commit rape on her but she did not examine herself on oath under section 315 Cr.P.C. In these circumstances we are unable to accept the contention of learned counsel for the appellant that the appellant had caused injuries on the person of the deceased Rohitash in exercise of right of private defence of his wifes body. In our view either the appellant himself had caused injury on the person of his for taking false plea of right of private defence of body during trial or Smt. Supyar sustained the injury in any other incident. 13. So far as the right of private defence of property available to the appellant is concerned, section 103 IPC reads as under; "103. 13. So far as the right of private defence of property available to the appellant is concerned, section 103 IPC reads as under; "103. When the right of private defence of property extends to causing death-The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely: First-Robbery; Secondly : House breaking by night; Thirdly : Mischief of fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property. Fourthly Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. Section 99 IPC reads as under; "99. Acts against which there is no right of private defence-There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his offence, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the directions of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Explanation 1 : A person is not deprived of the right of private defence against an act done, or attempted to be done by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. Explanation 1 : A person is not deprived of the right of private defence against an act done, or attempted to be done by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. Explanation 2 : A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, of if he has authority in writing, unless he produces such authority, if demanded." Section 104 IPC reads as under: "104. When such right extends to causing any harm other than death-If the offence, the committing of which, or the attempting to commit which, occasions, the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death." 14. From prosecution evidence it is clear that the deceased entered the house of the appellant in the night at about 10.00 PM after breaking the door open. At that time he was under intoxication. During post-mortem : examination, Dr. Bajiya noticed smell of alcohol from the stomach of the deceased. From the version of PW 1 Rameshwar, PW 5 Saroj, it also appears that the deceased had broken the door of the room open before entering it. Admittedly the deceased was serving in Indian Army and had come on leave only one day before the incident. As per statements of some of the : prosecution witnesses the deceased was in the habit of taking liquor. As per version of PW 3 Richpal father of the deceased, on 10.11.1995 the appellant abused him and therefore, it is possible that because of this incident the deceased might have gone to the house of the appellant to teach a lesson to the appellant and to beat him. As per version of PW 3 Richpal father of the deceased, on 10.11.1995 the appellant abused him and therefore, it is possible that because of this incident the deceased might have gone to the house of the appellant to teach a lesson to the appellant and to beat him. By entering the house of the appellant after : breaking the door open at the dead of the night under influence of liquor and with the intention to intimidate, annoy or beating the appellant Jai Singh, the deceased committed an offence of house breaking by night. In these circumstances a right of private defence of property accrued to the appellant. Now the question arises whether the appellant had right to cause death of the : deceased Rohitash in exercise of his right of private defence of property. 15. In Francis Alfred v. State of Rajasthan, 1980 Rajasthan Criminal Cases 81 , the Division Bench of this Court has held that : "The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or -grievous hurt to the defender could extend even to the extent of causing death. A mere reasonable apprehension is enough to put the right of self defence into operation, but it is also settled position of law that a right of self defence is only right to defence oneself and not to retaliate. It is not a right to take revenge. The right of private defence is extended to causing of voluntary death only if the conditions mentioned in the fourth of Section 103 IPC exists. Where as here, no such conditions exist, the right would be subject to limitations under section 104 IPC and would extend only to voluntary causing to the wrong-door of any harm other than death, i Thus where there is no indication that the trespasser showed any fight or even a emblance of fight, the right of private defence would be governed by section 104 IPC and would not extend to the causing of death of the trespasser, vide Ramanand Singh v. State of Bihar . The right of private defence under section 103 as well as under section 104 IPC is subject to the restrictions under section 99 IPC, namely, of not inflicting more harm than necessary for the purpose of defence and if death is caused in the above circumstances, the right is exceeded and the case is covered by Exception 2 to section 300 ,IPC and if it is so covered the accused is liable to conviction under section 304 IPC. 16. As per the version of PW 21 Dr. Bajiya there were 21 injuries on the dead body of Rohitash. Most of the injuries were of serious nature and caused by sharp weapon. The deceased was not having any weapon with him. it appears that under intoxication he had entered the house of the appellant. There was no previous enmity between the parties. The deceased did not cause any injury to the appellant. He did not make any attempt to cause injury on the person of the appellant, in these circumstances no act of the appellant had caused reasonable apprehension of death or of grievous hurt in the mind of the appellant. We have come to the conclusion that of-course the appellant was having right of private defence of property to cause injury to the deceased but he inflicted more harm than what was necessary to inflict for the purpose of his defence and therefore he exceeded his right to private defence and caused on the person of the deceased by the appellant without premeditation and without any intention of doing more harm than what was necessary for the purpose of the defence, the case of the appellant comes under exception 2 of section 300 IPC. The deceased was inflicted as many as 18 injuries by the appellant. Most of the injuries were caused by sharp weapon. Some of the injuries were on the vital parts of the body. These facts show that the appellant had caused injuries on the person of the deceased with the intention of causing such bodily injury as was likely to cause death. Therefore, the appellant is liable to be convicted under section 304 Part I IPC. 17. Now remains the question of sentence. Admittedly, the appellant is not a previous convict and had been living a peaceful life with his wife. Therefore, the appellant is liable to be convicted under section 304 Part I IPC. 17. Now remains the question of sentence. Admittedly, the appellant is not a previous convict and had been living a peaceful life with his wife. The incident took place in his house when the deceased under influence of liquor entered the house after breaking the door open. The appellant has been in custody for more than 7 years. His prolonged continuance in jail is not likely to have any reformative effect upon him. Taking a conspectus of the facts of the case we are of the opinion that it would meet the ends of justice if the appellant is sentenced to the period already undergone by him in detention. 18. Consequently, the appeal of the appellant Jai Singh is partly allowed. The appellant has been in custody for more than seven years. While modifying the judgment and order of the trial Court, he is acquitted of the charge under Section 302 I.RC. Instead we convict him under Section 304 Part I IPC and sentence him to the period already undergone by him in detention. He is in judicial custody. He shall be set at liberty forthwith, if not required in any other case.Appeal partly allowed. *******