JUDGMENT 1. - This criminal appeal under section 374 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') is directed against the judgment of conviction and order of sentence dated 25.1.2003 passed by the learned Additional Sessions Judge, Rajgarh (Alwar) in Sessions Case No. 14/2002 whereby, appellant-Kishan Lal alias Banda has been convicted for the offence under section 304 Part II Indian Penal Code and sentenced to Simple Imprisonment for 7 years and fine of Rs. 1,000/- in default of payment of which to undergo further Simple Imprisonment for 3 months. 2. Succinctly stated the relevant facts are that complainant-Ram Niwas made a written report on 2.3.2002 at Police Station Raini wherein he alleged that on that very day at about 10.30 a.m. when the accused-appellant alongwith his wife were bathing their buffaloes by pouring water on them from the pond, Laxman asked them not to do so because it will make the way muddy which will cause inconvenience to the people using that way. This resulted into altercation between them. The accused-appellant gave a stick blow on the head of Laxman and inflicted injuries on other parts of his body. Laxman fell down on the ground and breathed his last then and there. On the basis of the written report a First Information Report No. 17/02 was registered for the offence under section 302 Indian Penal Code. After necessary investigation, the charge-sheet was filed against three persons Chotey Lal alias Chhoti and Jagni for offence under section 302/34 Indian Penal Code and against appellant-Kishan Lal for offence under section 302 Indian Penal Code. The case was committed to the Court of Sessions for trial. The trial Court after hearing learned counsel for the parties and on the basis of the materials on record framed charge for offence under section 302 Indian Penal Code against the appellant and for offence under section 302/34 Indian Penal Code against the co-accused persons. They all pleaded not guilty and claimed to be tried. 3. The prosecution examined as many as 18 witnesses and got exhibited documents Exh.P/1 to P/23. The accused were examined under section 313 Criminal Procedure Code who again denied the allegations against them but led no defence evidence. 4. The learned trial Court after hearing the parties, acquitted co-accused persons namely Chottey Lal and Jagni but convicted the appellant and sentenced him as indicated above. 5. The accused were examined under section 313 Criminal Procedure Code who again denied the allegations against them but led no defence evidence. 4. The learned trial Court after hearing the parties, acquitted co-accused persons namely Chottey Lal and Jagni but convicted the appellant and sentenced him as indicated above. 5. At the time of hearing of the appeal, learned counsel for the appellant has submitted at the outset that he does not contest the conviction of the appellant on merits recorded by the learned trial Court. He has, however, on the strength of the case of Moti and Rai Singh v. State of Rajasthan, 2003(1) RLR 141 : 2003(1)Cr. L.R. (Raj.) 614 submitted that the occurrence has took place on a trivial matter and all of a sudden without pre-meditation and pre-plan. In the case of "Moti and Rai Singh" (supra) this Court has in an identical matter having similar facts and taking into consideration the fact that the incident was 19 years old and there was one injury by a blunt weapon and the appellants had remained in custody for 15 months and 9 months, respectively reduced their sentences to the period already undergone and the fine was enhanced to Rs. 10,000/- each. He has, therefore, urged that the appellant who has undergone about 21 months may be let off on the sentence already undergone by him in this case as well and his sentence of fine may be suitably enhanced. Learned Public Prosecutor as well as learned counsel for the complainant have both opposed the prayer. 6. It is not in dispute that deceased-Laxman met a homicidal death as this fact is not challenged. From the medical and ocular evidence on record, this fact is very well established that deceased-Laxman died of injuries inflicted upon him and the cause of his death has been opined to be the head injury which was received by him at the hands of the appellant as has been proved by Ram Niwas PW-8, Ramjilal PW-14 and Nathulal Meena PW-16. They have all testified that the accused-appellant inflicted a lathi blow on the head of deceased-Laxman. As per the post-mortem report Exh.P/13, a depressed fracture on the right side of frontal bone has been detected and the cause of death is opined to be due to shock and haemorrhage resulting from skull and brain injuries. They have all testified that the accused-appellant inflicted a lathi blow on the head of deceased-Laxman. As per the post-mortem report Exh.P/13, a depressed fracture on the right side of frontal bone has been detected and the cause of death is opined to be due to shock and haemorrhage resulting from skull and brain injuries. These injuries are opined to be ante-mortem in nature. His death occurred within 6 to 12 hours before the post-mortem-examination. 7. As the finding of conviction recorded by the trial Court had not been challenged on behalf of the appellant, it is unnecessary to undertake detailed appreciation of the evidence. It would suffice to say that despite searching and lengthy cross-examination from the witnesses nothing could be elicited from them on the basis of which it could be inferred that they are not stating the truth. They have successfully stood the test of cross-examination. 8. Thus, from the ocular, medical and other circumstantial evidence on record, it is proved beyond all manner of doubt that appellant- Kishan Lal caused injury on the head of Laxman which resulted into his death then and there. It is also proved from the evidence on record that the occurrence took place all of a sudden when the deceased-Laxman asked the accused-appellant not to bath his buffaloes on the way as it would make the way muddy which would cause inconvenience to the passers-by. It is evident from the materials on record that there was no pre-meditation or pre-plan on the part of the appellant to cause injuries or the death of Laxman. The trial Court has inferred and in my view rightly so that though the appellant did not intend to cause the death of Laxman but he knew that his death could be caused by the injuries inflicted by him on vital part of his body i.e. head. The trial Court has, therefore, acquitted the appellant of the charge under section 302 Indian Penal Code but has convicted him for the offences under section 304 Part II Indian Penal Code. The trial Court has, therefore, acquitted the appellant of the charge under section 302 Indian Penal Code but has convicted him for the offences under section 304 Part II Indian Penal Code. Looking to the reasons given by the trial Court and the proved facts and circumstances or arriving at such a conclusion, I do not find any cogent ground to take a different view from that of the trial Court particularly in view of the fact that no appeal against the acquittal of the appellant of the charge under section 302 Indian Penal Code has been filed either by the prosecution or by the complainant. The conviction of the appellant for the offence under section 304 Part II Indian Penal Code recorded by the trial Court therefore, deserves to be confirmed and upheld. 9. Learned counsel for the appellant has submitted that the appellant is of about 70/72 years of age. Presently, he is not keeping good health and may breath his last in the jail itself. He has also submitted that the occurrence took place all of a sudden without pre-meditation and pre-plan. He is in custody for about 21 months and he has inflicted solitary fatal injury with a stick on the head of the deceased. The other injuries of deceased are all simple in nature. There is no previous conviction to his discredit. So, a lenient and humanitarian view may be taken and he may be released on the sentence already undergone by him and may, enhance the amount of fine, if deemed necessary. 10. Learned Public Prosecutor as well as learned counsel for the complainant have both very strongly opposed the prayer. According to them, the appellant was 63 years of age on 4.3.2002 i.e. the date of his arrest as per the memo of arrest. He is, thus, not more than 65 years of age and is not of 70 or 72 years of age as contended on his behalf. The deceased was also 55 years of age when he met with his death. They have submitted that the solitary stick injury has proved fatal which indicates that the blow was very forceful. They have, therefore, urged that no leniency in the quantum of sentence should be shown to the appellant. 11. I have considered the rival submissions made at the bar. They have submitted that the solitary stick injury has proved fatal which indicates that the blow was very forceful. They have, therefore, urged that no leniency in the quantum of sentence should be shown to the appellant. 11. I have considered the rival submissions made at the bar. Indeed, the protection of society and stamping out criminal proclivity is the object of law which must be achieved by imposing appropriate sentence. The sentencing process therefore, has to be stern where it should be, and tempered with mercy where it warrants to be. The criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed. 12. It is true that the appellant in the instant case was shown to be 63 years of age in the memo of his arrest. He must be around 65 years of age by now which is certainly an advanced age. Genesis of the occurrence is a trivial matter. He is said to be having ill health at present and this is his first offence. He has already undergone 21 months in custody and has thus suffered sufficient punishment by way of mental agony, physical torture and financial loss. 13. Thus, taking a conspectus of the entire facts and circumstances of the case and keeping in view the guidelines laid down by the Hon'ble Apex Court in this regard, a humanitarian and lenient view in the matter seems to be justified and warranted. The ends of justice would be met if the sentence of imprisonment imposed upon him is reduced to the period already undergone by him and the amount of fine awarded to him is enhanced. 14. In the result, the appeal is partly allowed. The conviction of the appellant for the offence under section 304 Part II Indian Penal Code is upheld but, his sentence is reduced to the period already undergone by him and the fine is enhanced\from Rs. 1,000/- to Rs. 35,000/- and in default of payment of fine, the appellant shall undergo simple imprisonment for 2 years. The amount of fine shall be deposited with the Deputy REgistrar (Judicial) of this Court within 2 months from today. 1,000/- to Rs. 35,000/- and in default of payment of fine, the appellant shall undergo simple imprisonment for 2 years. The amount of fine shall be deposited with the Deputy REgistrar (Judicial) of this Court within 2 months from today. In the event of fine being deposited within the aforesaid stipulated period, the Deputy Registrar (Judicial) shall give a notice to the wife of deceased-Laxman and shall pay to her Rs. 33,000/- as compensation as per rules, out of the amount of fine. In case, the appellant fails to deposit the amount of fine, the appeal as regards the sentence shall also stand dismissed and the original sentence as per the judgment and order of the learned trial Court shall be given effect to.Appeal partly allowed. *******