Honble SHARMA, J.–The Sessions Case No. (2142/000) 27/2000 wherein the appellant was put to face trial before the learned Additional Sessions Judge No. 1, Jaipur City, Jaipur was based on circumstantial evidence. Learned Judge vide Judgment dated March 31, 2001 after focusing on the circumstances presented by the prosecution found all those circumstances established and formed themselves into a complete chain unerringly pointing to the guilt of the appellant, therefore, convicted and sentenced him under Section 302 IPC to suffer life imprisonment and fine of Rs. 5000/- in default to further suffer one year simple imprisonment. (2). As per prosecution story a report was lodged at 2.00 AM on June 25, 2000 at Police Station Ashok Nagar Jaipur by Sarjeet Singh, Sub Inspector,P.S. Ashok Nagar Jaipur (PW. 9) with the averments that at 7.30 PM on June 24, 2000 the informant and one Prem Singh F.S.no. 2370 were on patrolling duty. While patrolling on motor cycle around 12.45 AM when they reached near Bais Godown Fly over near Delhi Sawai Madhopur Railway track, they saw one person dragging away some one under the fly over of Delhi Sawai Madhopur Railway track. The informant and his companion rushed to the spot. Hearing their foot-steps and seeing them in police uniform, the person, who was dragging the body, leaving the same behind, ran away in the darkness and tried to make himself scarce. The informant chased him and nabbed him. On having been caught that person divulged his name to be Jagdamba. He had injuries on his face and head which were bleeding. His shirt was also smeared with blood. Jagdamba was brought to the place where dead body was left by him. One reaching that place, the informant discovered that dead body smeared with blood was lying there. On being asked about the dead body, Jagdamba revealed that the same was of one Bhagwan Singh @ Bhagwana. Jagdamba also revealed that he had a fiscal dispute with the deceased and on account of the same he liquidated the later by dealing a blow on his head with a stone. He also discerned that he was dragging that to railway line in order to conceal it. On the basis of said report a formal report FIR No. 36/2000 was registered for the offence under Section 302 IPC and investigation commenced. He also discerned that he was dragging that to railway line in order to conceal it. On the basis of said report a formal report FIR No. 36/2000 was registered for the offence under Section 302 IPC and investigation commenced. Autopsy on the dead body was performed, injuries sustained by Jagdamba got medically examined, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1, Jaipur City, Jaipur, Charge under Section 302 IPC was framed. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 13 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was examined. Learned trial Judge on hearing final submissions decided the case as indicated above. (3). It is contended by learned counsel for the appellant that so called incriminating circumstances in the case could be explained on numerous hypothesis. These were multiple missing links in the chain of circumstantial evidence. The alleged recovery of a stone at the instance of appellant had been made from an open place accessible to all and sundry, therefore the appellant could not be connected with the offence on the basis of such recovery. The statements of witnesses were riddled with numerous discrepancies as also incongruencies which demolished the credibility of the same. From the medical evidence also charge under Section 302 IPC was not established beyond reasonable doubt. Reliance was placed on Karam Singh vs. State of Punjab (1993 Cri. L.J. 3673), Vinod Kumar vs. State of U.P. (JT 2000 (7) SC 495), State of Rajasthan vs. Khuma (1998 (2) RCC 599), Naresh Kumar vs. State of Maharashtra ( AIR 1980 SC 1168 ), Tarsem Singh vs. State of Punjab (Jt 2002 (1)SC 415), Paramasivam @ Paraman @ Kottiyam vs. State of Tamil Nadu (JT 2002 (8) SC 214), Bharat vs. State of M.P. (JT 2003(1) SC 635), State of Maharashtra vs. Suresh ( 2000(1) SCC 471 ). (4). Per contra, learned Public Prosecutor supported the impugned judgment and urged that the circumstances produced at the trial themselves formed into a complete chain unerringly pointing to the guilt of the appellant and he was rightly convicted and sentenced. (5). At the outset we proceed to consider the injuries sustained by the deceased and appellant. (4). Per contra, learned Public Prosecutor supported the impugned judgment and urged that the circumstances produced at the trial themselves formed into a complete chain unerringly pointing to the guilt of the appellant and he was rightly convicted and sentenced. (5). At the outset we proceed to consider the injuries sustained by the deceased and appellant. As per Post Mortem Report (Ex. P. 24) deceased Bhagwan Singh sustained following ante mortem injuries:- 1. Lacerated wound 4 cm x 0.5 cm x bone deep on Rt. parito frontoal region at hair line with with added margins. 2. Lacerated wound 1.5 cm x 0.5 cm x bone deep on fore head at center. 3. Lacerated wound 5 cm x 1cm x bone on left side of fore head. 4. Incised wound 5 cm x liner x bone deep starting from mid of fore head to left medial end of eye brow. 5. Lacerated wound 5 cm x 1 cm x bone deep on left side fore head just near to Inj. No. 3. 6. Lacerated wound 1 cm x 0.5 cm x just lat. to Inj. No. 2 on Rt. side. 7. lacerated wound 3 cm x 0.5 cm x bone deep on vertex. 8. Lacerated wound 2 cm x 0.5 cm, 3 cm back to Inj. No. 7. 9. Lacerated wound 5 cm x 1 cm x bone deep on Rt. parietal stelate in shape. 10. Lacerated wound 5 cm on Rt. parietal just below Inj. No. 9. 11. Lacerated wound 8 cm x 1cm x bone deep on Rt. side occipital bone. 12. Lacerated wound 3 cm x 0.5 cm x bone deep on occipital bone at top. 13. Lacerated wound 6 cm x 0.5 cm x bone deep left side parietal bone. 14. lacerated wound 3 cm x 05 cm x bone deep just post to Inj. No. 11. 15. Lacerated wound 6 cm x 0.5 cm x bone deep left side occipital bone. 16. Abrasion 1 cm x 1 cm on mid of nose. 17. M. Abrasions which lower 1/3 both side chest and upper abdomen Ant. and Rt. Side of chest and above. 18. Lacerated wound 10 cm x 2 cm x muscle deep on medial aspect of Rt. foot. 19. Lenaj teeth upper left I & II inciser with bruise in corresponding on of upper lip. 20. 17. M. Abrasions which lower 1/3 both side chest and upper abdomen Ant. and Rt. Side of chest and above. 18. Lacerated wound 10 cm x 2 cm x muscle deep on medial aspect of Rt. foot. 19. Lenaj teeth upper left I & II inciser with bruise in corresponding on of upper lip. 20. Lacerated wound 3 cm x 1 cm x muscle deep x lat. aspect of Rt. lower 1/3 leg. 21. Lacerated wound 1 cm x 1 cm on left leg lower 1/3 Ant. 22. M. Abrasions on back of left hand Area 4 cm x 3 cm. 23. M. Abrasions on back of Rt. Hand 5 cm x 2cm. According to Dr. Surendra Kumar Sharma (PW. 11) the cause of death of deceased was shock due to haemorrhage on account of rupture of spleen. In this cross examination the Doctor also deposed that the deceased was a patient of T.B. The appellant Jagdamba vide injury report (Ex. P.1) received following injuries:- 1. Lacerated wound 1 cm x 1/2 cm x muscle deep on left parietal region, near mid line with soft scab. 2. Lacerated wound 2.5 cm x 1/2 cm x muscle deep on left parietal region four cm above upper part of left ears upper part with soft scab. 3. Abrasion 1/4 x 1/4 cm behind left external ear with soft scab. 4. Bruise 3 x 1 cm below right eye over cheek (Reddish blue colour) 5. Abrasion 2.5 cm x 2cm over right malar region of cheek with soft scab. 6. Abrasion 1/2 x 1/4 cm right side force head with soft scab. 7. Abrasion 5 x 1/2 cm on right tibial thin middle 1/3 part with soft scab 8. C/o pain on chest right side on examination no visible sign of injury seen. (6). We have pondered over the rival submissions and scanned the material on record. (7). The circumstances which the prosecution presented at the trial may be summarised thus:- (i) Death of deceased was homicidal in nature. (ii) The informant Sarjeet Singh (PW. 9) saw the appellant dragging the dead body of the appellant and nabbed him. (iii) Blood group `AB of deceased was found on the clothes of the appellant. (iv) The stone stained with AB blood group, used in the commission of offence, got recovered at the instance of appellant. (ii) The informant Sarjeet Singh (PW. 9) saw the appellant dragging the dead body of the appellant and nabbed him. (iii) Blood group `AB of deceased was found on the clothes of the appellant. (iv) The stone stained with AB blood group, used in the commission of offence, got recovered at the instance of appellant. (v) The appellant had sustained the injuries during scuffle with the deceased. (8). Having scanned the statement of autopsy surgeon and the post mortem report we find that the death of deceased was homicidal. Cause of death was shock due to haemorrhage on account of rupture of spleen. (9). The prosecution is also able to establish that the appellant was seen dragging the dead body of appellant. The testimony of Sarjeet Singh is quite natural and trustworthy. He had no enmity with the appellant. There is no reason to disbelieve the evidence of Sarjeet Singh. It was the appellant who had divulged the name of the deceased. (10). Sarjeet Singh (PW. 9) also deposed that while the appellant was nabbed, he (appellant) was wearing Kurta stained with blood. Kurta was seized vide memo Ex. P.20 and sealed in a packet marked `A. Blood smeared shirt and pant of the deceased were also seized vide memo Ex. P. 17 and sealed in packet marked `E. Clothes of appellant and deceased were sent to FSL for examination. As per FSL report Kurta belonging to appellant and shirt paint of deceased found stained with AB blood group. (11). From the record it is evident that the information supplied by appellant under Section 27 of Evidence Act was recorded in the memo Ex. P.21 and on that basis the stone stained with blood was recovered vide memo Ex. P.22. Despite the fact that motbirs Rajeev (PW. 2) and Devi Singh (PW. 3) did not support the prosecution, we find the testimony of Sarjeet Singh trustworthy and accept it. (12). It is also established from record that at the time when the appellant was nabbed he was injured. Injuries of appellant was medically examined by Dr. Ravindra Sachdev (PW.1). In the explanation under Section 313 Cr.P.C. the appellant admitted that he had injuries which were examined by the Medical Jurist, but the appellant did not explain the circumstances under which the injuries were received by him. Injuries of appellant was medically examined by Dr. Ravindra Sachdev (PW.1). In the explanation under Section 313 Cr.P.C. the appellant admitted that he had injuries which were examined by the Medical Jurist, but the appellant did not explain the circumstances under which the injuries were received by him. Therefore, this possibility can not be ruled out that the injuries would have been suffered by the appellant while he had scuffle with the deceased. (13). The inevitable conclusion, therefore, is that all the incriminating circumstances established and formed themselves into a complete chain unerringly pointing the guilt of the appellant. (14). That takes us to the alternate submission of learned counsel that even if entire prosecution case is found proved the appellant could only by held guilty for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II. Having analysed this submission, we find that the cause of death of deceased was rupture of spleen and at the time of death the deceased was a patient of T.B. Indisputably the injuries allegedly inflicted by the stone were not the cause of death of the deceased. The appellant was also fond to have sustained lacerated wound. Thus having regard to the nature of weapon used and the parts of the body on which blows were dealt, it is difficult to hold that the appellant intended to cause that particular injury to spleen. However under the circumstances he must be attributed to have the knowledge that by dealing such blows he was likely to cause the death of deceased in which case the offence is one punishable under Section 304 Part II and not under Section 302 IPC. The learned trial Judge did not properly appreciate the nature of injuries sustained by the appellant and the deceased and committed error in convicting and sentencing the appellant under Section 302 IPC. (15). For these reasons we partly allow the appeal of appellant Jagdamba and instead of Section 302, we convict him under Section 304 Part II IPC. In view of the fact that appellant Jagdamba has already suffered the sentence for a period of more than five years and two months, we sentence him to the period already undergone by him in confinement. Appellant Jagdamba, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case. (16). In view of the fact that appellant Jagdamba has already suffered the sentence for a period of more than five years and two months, we sentence him to the period already undergone by him in confinement. Appellant Jagdamba, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case. (16). The impugned judgment of trial Court stands modified as indicated above.