JUDGMENT 1. - This appeal under Section 374(2) of the Criminal Procedure Code is directed against the judgment of conviction and order of sentence dated 25.9.1999 passed by the Additionai Sessions Judge, Hindaun City. District Karauli, by which the learned Additional Sessions Judge, convicted the accused appellant for offence under Section 304, Part II IPC and sentenced him to s undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/.. in default thereof to further undergo simple imprisonment for three months 2. The facts feedings to this appeal are that on the basis of the Parcha Bayan (Ex.P.4) of Smt. Devi, PW. 2 recorded on 16.1.1996 at about 4.15 P.M. by the HC Ram Sahai PW.14 Police Station Hindaun at PHC Hindaun City, a to case for offence under Sections 341, 323 and 34 IPC was registered vide FIR No. 19/96 at Police Station Toda Shim 19.1.96 at 7.30 PM. in the Parcha Bayan Ex.P.4 Smt. Devi alleged that they are two real sisters. Her elder sister is Shanti, whose husband is Rajalli. Her sister and brother-in-law (Jija) sold the land of her share to Jagnya Meena. She alleged that at the time of is incident, appellant Rajalli was cutting the Babool tree standing on the land in dispute. When she and her husband asked Rajalli not to do so, appellant Rajalli inflicted an axe blow on the head of her husband while accused Prahlad inflicted a lathi blow on his head. When she tried to save her husband, accused Prahlad inflicted a lathi below on her head and in aggression he repeated blow by stick (Lakdi) on the right hand of her husband. According to her, accused Jagnya was also inflicting blows by lathi. On her raising hue and cry, number of persons of the village collected at the scene. Thereafter they became unconscious and were taken to the Hospital at Hindaun by their family members. The condition of her husband was serious. Subsequently, injured Bambal was referred to SMS Hospital, Jaipur where he died on 23.1.1996 and the police added Section 302 IPC. 3. In the course of investigation, the police got conducted autopsy on the lead body of deceased Bambal, accused persons were arrested, weapon of the offence and other articles were recovered and seized, and state vents of the witnesses were recorded. 3. In the course of investigation, the police got conducted autopsy on the lead body of deceased Bambal, accused persons were arrested, weapon of the offence and other articles were recovered and seized, and state vents of the witnesses were recorded. Having completed entire formalities as to the investigation, the police filed a charge sheet against three accused persons, namely, Jagnya, Rajalli and Prahlad. 4. Learned trial court. on the basis of evidence and material collected during investigation and placed before it and after hearing arguments of counsel for the parties, framed charges against accused appellant Rajalli for offence under Sections 302 and 323/34 IPC and against other two accused persons under Sections 302/34 and 323 IPC. The accused denied the charges, pleaded innocence and claimed trial. 5. In order to prove its case, the prosecution examined as many as 17 witnesses and also got exhibited as some documents. On completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. The accused did not examine any witness in their defence. 6. At the conclusion of trial and after hearing arguments of both the lo sides, the learned trial, court found the appellant guilty of having committed offence punishable under Section 304 Part II IPC and accordingly convicted and sentenced him in the manner stated hereinabove. Hence the present appellant against conviction. 7. Mr. Khan, learned counsel appearing for the appellant vehemently contended that the judgment under appeal is not legally sustainable as It being contrary to the evidence and material on record. The trial court has fallen into serious error while relying upon the testimony of prosecution witnesses. Learned counsel argued that the statements of prosecution witnesses are inconsistent, contradictory and suffer from serious infirmities. Mr. Khan further argued that the prosecution has not been able to prove beyond doubt by cogent and reliable evidence that appellant inflicted the fatal blow. Referring to the statements of witnesses, Mr. Khan argued that it cannot be said with certainty that it was the appellant alone who was responsible for the fatal blow on the head of deceased. 8. Lastly, if was contended that in the facts and circumstances of the case and in the light of the evidence adduced by the prosecution it cannot be said that there was premeditation or that the appellant intended to cause death of deceased. 9. 8. Lastly, if was contended that in the facts and circumstances of the case and in the light of the evidence adduced by the prosecution it cannot be said that there was premeditation or that the appellant intended to cause death of deceased. 9. Per contra, the learned PUblic Prosecutor has supported the judgment of the learned trial court and has contended that there is no inconsistency in the statements of the prosecution witnesses, the prosecution has been able to prove the case against the appellant beyond all reasonable doubts and therefore, the conviction of the appellant deserves to be maintained. 10. I have given my thoughtful consideration to the rival submissions and carefully gone through the impugned judgment and the evidence and material available on record. 11. There cannot be any dispute that the death of deceased was homicidal the post mortem report Ex.P. 22 and the evidence of Dr. Vivekanand, PW. 16. who conducted autopsy clearly indicate that there were five anti mortem injuries on the person of deceased Bambal and the cause of death was come brought about as the result of cumulative effect of the injuries to brain and skull. 12. In recording conviction, the learned trial court has relied upon the evidence of Smt. Devi PW. 2 who is an injured eye-witness of the occurrence and in my considered view, rightly so. I have also scanned the evidence of this injured witness. In her statement she has categorically deposed that it was appellant Rajalli who inflicted an Axe blow on the head of Bambal. Her statement also stands in corroboration with the evidence of PW. 3 Smt. Laddo, mother of the deceased, who has deposed that appellant Rajalli so inflicted an Axe blow on the head of Bambal and the other two accused Jagnya and Prahlad inflicted one blow each by lathi on the head of Bambal. There appears to be no reason to disbelieve or discard the testimony of PW. 2 Smt. Devi wife of deceased ana she herself had sustained injury on her 1 hand when she tried To intervene so as to save her husband, nor there is any evidence to suggest false implication of the appellant. Thus, in my considered view, the learned trial court has rightly relied upon the testimony of PW 2 Smt. Devi in basing conviction. 13. As stated above, PW 16 Dr. Thus, in my considered view, the learned trial court has rightly relied upon the testimony of PW 2 Smt. Devi in basing conviction. 13. As stated above, PW 16 Dr. Vivekanand, who conducted autopsy on the dead body has deposed that death was due to cumulative effect of injuries sustained by the deceased. Thus, there is no evidence that injury inflicted by appellant Rajalli alone was sufficient to cause death in the ordinary course of nature. Undisputedly, the appellant inflicted single blow. There is no evidence that he repeated the blows nor there is evidence to show that appellant or the co-accused who were armed with lathies were bent upon killing the deceased. In this view of the matter, it can be said that the act of the appellant in causing injury on the head of deceased by a sharp edged weapon was done with the knowledge that it will likely to cause death is but without any intention to cause death or to cause such bodily injury as was likely to cause death. Therefore, knowledge is to be imputed to appellant Rajalli. in these circumstances, the trial court was right in convicting appellant Rajalli under Section 304 Part-11 IPC. 14. On the question of sentence, learned counsel for the appellant argued that in the facts and circumstances of the case, coupled with the facts that deceased and appellant were closely related and the incident took place on a very petty matter, the sentence of 10 years awarded to the appellants is excessive. He argued that appellant has already undergone major part of the sentence and it would be in the interest of justice that the appellant is sentenced to the period already undergone by him. In support of his argument, learned counsel has relied upon Ratan Lal v. State of Rajasthan, 1995 (2) WLC (Raj.) 361 ; Chotya and another v. State of Rajasthan, 1996 (Suppl.) RCC 554 and Masumsha Hasanasha Musalman v. State of Maharashtra, (2000) 3 SCC 557 . 15. I have considered the above argument and have gone through the case laws cited at the bar. Keeping in view the facts and circumstances of the case and considering the cases cited at the bar, I feel that ends of justice would be met if the accused is sentenced to the period already undergone by him i.e. 5 years and odd. 16. Keeping in view the facts and circumstances of the case and considering the cases cited at the bar, I feel that ends of justice would be met if the accused is sentenced to the period already undergone by him i.e. 5 years and odd. 16. In the result, the appeal filed by the appellant Rajalli is partly allowed. While maintaining conviction of the appellant under Section 304-11 IPC, he is sentenced to the period already undergone by him. The appellant is in jail. He shall be released forthwith if not required in any other case.Appeal Partly Allowed. *******