JUDGMENT 1. The appellant was indicted before the learned Sessions Judge, Karauli for having committed murder of Ram Dayal in Sessions Case No. 48/97 vide judgment dated 7th April, 1998. He was found guilty under Section 302 IPC and convicted and sentenced thereunder to suffer imprisonment for life and fine of Rs. 500/- . In default to further suffer six months' simple imprisonment. 2. The prosecution story as pictured during trial is that on June 18, 1997 around 8.00 A.M. when Ram Dayal (now deceased) was on his way to take bath at well, he was surrounded by the appellant and other four persons Tejram, Bhoor Singh, Vishnu and Kirpal. After exchange of hot words the appellant inflicted lathi blow on the head of Ram Dayal whereas another lathi blow was inflicted by Tej Ram. Ram Dayal made attempt to save him and rushed towards his house. Bhoor Singh, Kripal and Vishnu followed him and inflicted lathi blows on his person as a result of which Ram Dayal fell down near his house and died. Report of the said incident was lodged with the Police Station Masalpur at 11.30 PM. on 18.6.1997 and investigation was undertaken. Inquest report was drawn and autopsy on the dead body of Ram Dayal was conducted. Statements of the witnesses under Section 161 Cr.RC. were recorded. The appellant was arrested and at his instance lathi allegedly used in commission of offence got recovered. On completion of the investigation, charge sheet was filed only against the appellant and the case was neither kept pending under section 173(8) Cr.RC. against the co-accused persons nor any explanation was given as to why co-accused were not charge - sheeted. In due course, the case come up for trial before the learned Sessions Judge, Karauli. Charge under Section 302 IPC was framed against the appellant who denied the charge and claimed to be tried. The prosecution, in support of its case, examined as many as 24 witnesses and got exhibited 26 documents. In the explanation under Section 313 Cr.RC. the appellant claimed innocence. No defence, however, was produced by the appellant. The learned trial judge on hearing final submissions convicted and sentenced the appellant as indicated hereinabove. 3. Delving deep into the material on record, we find that only two witnesses Ram Kumar RW. 3 and Ram Babu RW. 11 the nephews of the deceased have supported the prosecution case. No defence, however, was produced by the appellant. The learned trial judge on hearing final submissions convicted and sentenced the appellant as indicated hereinabove. 3. Delving deep into the material on record, we find that only two witnesses Ram Kumar RW. 3 and Ram Babu RW. 11 the nephews of the deceased have supported the prosecution case. From the scrutiny of the record it appears that only one injury by lathi on the head of the deceased was attributed to the appellant. After arguing the case for some time in regard to delayed first information report and the abnormal conduct of the alleged eye witnesses Mr. Arvind Kumar Gupta, learned counsel appearing for the appellant made alternative submission that even if evidence adduced by the prosecution is relied upon, the case of the appellant comes under the purview of exception IV of Section 300 IPC as there was no enmity between the appellant and the deceased and incident had occurred all of a sudden while the deceased was going to take bath at the well. Before inflicting lathi blow, there was altercation between the appellant and the deceased and the injury appears to have been inflicted in the heat of passion and the appellant did not act in a cruel and unusual manner. 4. Per contra, Mr. S.S. Rathore, learned Public Prosecutor and Mr. S.K. Gupta, learned counsel for the appearing for the complainant urged that the case of the appellant is covered under clause thirdly of section 300 IPC and he was rightly convicted under Section 302 IPC, Reliance is placed on Gudar Dusadh v. State of Bihar, AIR 1972 SC 952 . 5. Before considering the rival submissions we deem it appropriate to refer to the injuries sustained by the deceased Ram Dayal. As per the testimony of Dr. Nand Lal Sharma, PW. 19 following ante mortem injuries were found on the dead body of Ram Dayal vide post mortem report Ex.P 20 : 1. Oblique lacerated wound 3cm X 3cm X skin, muscle and up to bone deep on left parietal part of skull with shedding and haemotoma with clotted blood dark red. 2. Oblique lacerated wound 2.5 cm X2 cm X skin and muscle deep on right parietal part of skull with ark red clotted blood with swelling and haemotoma. 3. Oblique lacerated wound 3cm X 3cm X skin, muscle and up to bone deep on left parietal part of skull with shedding and haemotoma with clotted blood dark red. 2. Oblique lacerated wound 2.5 cm X2 cm X skin and muscle deep on right parietal part of skull with ark red clotted blood with swelling and haemotoma. 3. Abrasion 2 cm X 2 cm on lower ⅓rd party anteriorly dark red - c right leg. 4. Abrasion 2cm X 1cm on right leg lower and on anterior surface of right ankle joint. 5. Abrasion 2 cm X 1/2 cm on right pololateral fossa of right leg. Posterior to right knee. 6. Abrasion 3 cm X 2 cm on right calf muscle posteriorly, upper ⅔rd part. 7. Oblique, lacerated wound 4cm X 2 cm X skin, muscle deep on light hand palm in between left hand thumb and index finger with clotted dark red blood. 8. Reddish dark red contusion 15cmX4 cm on left hand palm with swelling of finger. Evidently, injuries 1 and 2 were lacerated wound on the head and according to Dr. Nand Lal Sharma, PW. 19 the said injuries Nos. 1 and 2 were sufficient in the ordinary course of nature to cause death. 6. As already noticed that after sustaining lathi blow on the head, which was allegedly inflicted by the appellant, the deceased got up and rushed towards his house. Thereafter Tejram and others co-accused persons inflicted lathi blows on his person but the appellant did not repeat the blow and only one injury has been attributed to him. 7. In Gudar Dusadh's case (supra), the accused was lying in wait to attack the deceased and he gave blow on the head of deceased as a result of which the deceased fell down and died instantaneously. The assault was premeditated and the blow on the head of deceased was not accidental. The blow on the head with lathi was plainly given with such force resulting in 3" long fracture of the left parietal bone as a result of which the deceased died instantaneous death. In that situation, there arose no occasion for giving second blow to the deceased. Finding the head injury deliberate and sufficient in the ordinary course of nature to cause death, their Lordships ruled that clause `thirdly' of Section 300 IPC was attracted. The facts of the present case are distinguishable. In that situation, there arose no occasion for giving second blow to the deceased. Finding the head injury deliberate and sufficient in the ordinary course of nature to cause death, their Lordships ruled that clause `thirdly' of Section 300 IPC was attracted. The facts of the present case are distinguishable. Here the deceased after sustaining the injury on head with the hands of the appellant was in a position to get up and to rush towards his house. It was the injury inflicted by the co-accused which caused his death. 8. Ram Gopal, RW. 3 attributed the injury on the left side of head of Ram Dayal to Tejram, which is shown as injury No. 1 in the post mortem report. On internal examination of this injury, liner fracture of left parietal bone was detected. It thus appears that the appellant did not inflict the lathi blow with the intention to murder the deceased. On the other hand, the appellant must be held to have known the consequences of the blow being given and since it was a single blow the offence would be one under Part - I of Section 304 IPC as the act of the appellant was without premeditation and he did not take undue advantage of the circumstances. He could have repeated the blow but did not do so. Thus exception IV to Section 300 IPC gets attracted. 9. In the result, we partly allow the appeal and instead of convicting and sentencing the appellant under Section 302 of the Indian Penal Code, we convert his conviction under Section 304 Part I of the Indian Penal Code. The appellant has been in detention for a period of more than five years and seven months and in the facts and circumstances of this case, we are of the view that ends of justice would be met in sentencing the appellant to the period already undergone by him in detention. The appellant who is in jail shall be set at liberty forthwith if not required in any other case. 10. Before parting with we may however state with agony and anguish that the act of Investigating Officer Prabhu Dayal in not investigating the allegations levelled against the co-accused, was a deliberate act of misconduct and for that an inquiry is needed to be initiated. 10. Before parting with we may however state with agony and anguish that the act of Investigating Officer Prabhu Dayal in not investigating the allegations levelled against the co-accused, was a deliberate act of misconduct and for that an inquiry is needed to be initiated. Let a copy of this judgment be forwarded to the Director General of Police, Rajasthan, Jaipur for taking appropriate action against the defaulting officer.Appeal partly allowed. *******