JUDGMENT 1. - This criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter) is directed against the judgment and order dated 23.7.2003 passed by the Additional Sessions Judge (Fast Track), Jodhpur (for short, "the trial Court" hereinafter) in Sessions Case No. 89/2003, whereby the trial Court convicted the appellant for the offence under Section 304 Part I, IPC and sentenced him to undergo rigorous imprisonment for seven years and a fine of Rs. 1000/-, in default of payment of fine further to undergo one month's simple imprisonment. Aggrieved by the judgment and ordered impugned, the appellant has filed the instant appeal. 2. I have heard learned counsel for the appellant and Public Prosecutor for the State. Carefully gone through the judgment and order impugned as also the record of the trial Court. I have scrutinized, scanned and evaluated the evidence on record. 3. It is contended by the learned counsel for the appellant that it was. the deceased who demanded fodder from the appellant and on refusal, first threatened to put the fodder ablazed and thereafter the deceased lit fire to the fodder, by which the fodder of the appellant was completely burned. Thereafter the deceased also made an attempt to burn the house of the appellant and in that circumstance, the appellant deprived of the power of self-control and on being provoked suddenly by the deceased by burning appellant's fodder and making an attempt to burn his dwelling house, the injuries were caused to the deceased on non-vital parts of the body and, therefore, it cannot be inferred that the appellant had intention to kill the deceased. According to the learned counsel for the appellant, the trial Court fell in error in convicting and sentencing the appellant for the offence under Section 304 Part I, IPC. As in the instant case, the very essential ingredient of "intention to cause injuries likely to cause death" is totally missing, therefore, at the best if any offence is made out against the appellant, then it would fall under Section 304 Part II and not under Section 304 Part I, IPC. 4. As in the instant case, the very essential ingredient of "intention to cause injuries likely to cause death" is totally missing, therefore, at the best if any offence is made out against the appellant, then it would fall under Section 304 Part II and not under Section 304 Part I, IPC. 4. Learned Public Prosecutor, on facts, could not dispute; however, submitted that the appellant caused repealed injuries, though on non-vital parts, which ultimately proved fatal and, therefore, submitted that the conviction of the appellant for the offence under Section 304 Part I, IPC cannot be faulted. 5. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. 6. In the instant case, the sole eye witness is PW 1 Smt. Samu Devi W/o deceased Jala Ram. She stated that while appellant was going to his house, her husband asked him to give him some fodder for cows. The appellant refused to give fodder, on which the deceased abused the appellant and told that if the appellant would not give the fodder, he would burn the fodder. Thereafter the deceased burnt the fodder of the appellant. When the fodder of the appellant was burnt by her deceased husband, the appellant and one Pukha Ram assaulted her husband by Lathis, who fell down and thereafter became unconscious. She rescued and also suffered injuries. Thereafter she went to call her parents-in-law and brother-in-law at the place at a distance of 3 Km to village Narwa. When she came alongwith her parents-in-law and brother-in-law, they found her husband already dead. In cross examination, she admitted that while her husband was being assaulted, she was at her house, however, on hearing the noise, she went to the place of the occurrence by covering a distance of about 50 paces. She also admitted that on the relevant date, her husband had consumed country-made liquor. However, she denied the suggestion that her husband made an attempt to burn the hamlet of the appellant. 7. She also admitted that on the relevant date, her husband had consumed country-made liquor. However, she denied the suggestion that her husband made an attempt to burn the hamlet of the appellant. 7. PW 2 Chanani accompanied the other two witnesses PW 13 Chaina Ram and PW 10 Maga ham from village Narwa to the place of the occurrence on being called by PW 1 Samu Devi and found Jala Ram dead at the place of the occurrence..PW 10 Maga Ram and PW 14 Chaina Ram, who are father and brother of the deceased, also made the similar statement like that of PW 2 Chanani, as all these three witnesses reached the place of the occurrence, they found Jala Ram dead. 8. PW 3 Mitha Lal and PW 4 Narain Singh are the Panch witnesses, hence they have not witnessed the occurrence. PW 5 Virendra Singh is the photographer, who took the photographs of the deceased at the mortuary, where the post-mortem on the dead body of deceased Jala Ram was conducted. PW 6 Mangi Lal and PW 7 Nana Lal are the witnesses to the recovery of the Lathi vide Ex.P/13. 9. PW 8 Dr. Jagdish Jugtawat conducted the Autopsy of the deceased and noticed as many as eleven injuries on the person of the deceased and proved the post-mortem report Ex.P/14. According to him, the cause of death of deceased Jala Ram was due to the injury to the liver which was 1 found sufficient in the ordinary course of nature to cause death. He noticed the following injuries on the dead body of Jala Ram 1. Abrasion 11/2 x 1 cm on pinna. 2. Lacerated wound 1/2cm x 1/2cm x skin deep and 3/4cm x 1/2 cm x skin deep on back of right pinna (on mastoid region) 3. Abraded bruise 5cm x 4cm on right shoulder. 4. Multiple bruises varying in size from 16cm x 2cm to 8cm x 3cm on right side of postero-lateral chest and abdomen. 5. Abrasions 2cm x 2cm (two) on right side of neck. 6. Bruise 13cm x 9cm on right buttock. 7. Abrasion 3cm x 2 cm on right elbow. 8. Lacerated wound 3 cm x 2cm muscle deep on right leg ant W/3. 9. Lacerated wound 8cm x 4cm on right leg below injury No. 8 with compound fracture of leg bones. 10. 6. Bruise 13cm x 9cm on right buttock. 7. Abrasion 3cm x 2 cm on right elbow. 8. Lacerated wound 3 cm x 2cm muscle deep on right leg ant W/3. 9. Lacerated wound 8cm x 4cm on right leg below injury No. 8 with compound fracture of leg bones. 10. Lacerated wound 3cm x 2cm x muscle deep on right leg ant lower ⅔ portion. 11. Lacerated wound 6cm x 3cm x muscle deep on left leg ant M/3. 10. He has stated that the position of river of a human-being is 11th and 12th ribs of right side. He stated that there was no fracture of 11th and 12th ribs of the deceased; however, there was a fracture of 3rd and 8th ribs of the deceased. According to him, the liver of the deceased could have been damaged because of external injuries. He stated that had the patient been given immediate treatment of damaged liver, he could have survived. Except the injury to the liver, there was no other injury dangerous to life. 11. PW 9 Poona Ram is not an eye witness to the occurrence. His statement is hearsay statement. PW 14 Prabhu Singh and PW 16 Ram Chandra are the police officials who proved the investigation. 12. In the FIR, which was recorded on the basis of Parcha-Bayan Ex.P/1 of PW 1 Samu Devi, PW 1 Samu Devi clearly stated that on fodder being demanded by her deceased husband from the appellant, the appellant refused to give fodder, on which her husband abused the appellant and threatened that if he does not give him fodder, he will burn the fodder. She stated that her husband was not in sound state of mind and occasional lunatic intervals used to come to him and because of being mentally unsound, after going of the appellant, her husband got annoyed and ablazed the fodder lying in the field of the appellant, upon which the appellant and his brother Pukha Ram came and inflicted Lathi blows to the deceased. Thus, from the statement of PW 1 Samu Devi, as also the FIR lodged by her, it is more than clear that the deceased wanted to have fodder from the appellant for his cows, which the appellant refused to give and thereafter the deceased got annoyed being mentally imbalanced, abused the appellant and threatened him to burn his fodder if he does not give fodder to him and executed the threat by ablazing the fodder lying in the field of the appellant, which provoked the appellant and he caused injuries on being provoked suddenly by the deceased himself. According to PW 8 Dr. Jagdish Jugtawat, most of the injuries are abrasions and contusions on ear, shoulder, hips, ulna, both legs etc., which shows that most of the injuries caused by the appellant and co-accused Pukha Ram were found on the non-vital parts of the body of the deceased and those injuries were caused on being provoked suddenly by the deceased by hurling abuses and ablazing the fodder of the appellant. From this evidence, it cannot be said that the appellant had an "intention" to cause such bodily injuries to the deceased as are likely to cause his death. However, from the evidence, it has been proved beyond reasonable doubt that the appellant had the "knowledge" that the injuries caused by him to the deceased would cause his death and, therefore, in my view, the conviction of the appellant passed by the trial Court deserves to be altered from Section 304 Part Ito Section 304 Part II, IPC. 13. Learned counsel for the appellant submits that the appellant had no intention to cause injuries likely to cause death of deceased Jala Ram. More so, according to the learned counsel, the injuries were caused on being provoked suddenly by the deceased himself and the appellant has already undergone the imprisonment for three years and, therefore, the learned counsel submits that the ends of justice would be met if the sentence awarded to the appellant is reduced to the period of imprisonment already undergone by him. 14. In Tarsem Singh & Ors. v. State of Punjab, 2002 (1) WLC (SC) Cri. 263 : (2002) 2 SCC 673 , the appellants therein were convicted for the offence under Section 304 Part-II, IPC and sentenced to eight years rigorous imprisonment with a fine of Rs. 1000/- each. 14. In Tarsem Singh & Ors. v. State of Punjab, 2002 (1) WLC (SC) Cri. 263 : (2002) 2 SCC 673 , the appellants therein were convicted for the offence under Section 304 Part-II, IPC and sentenced to eight years rigorous imprisonment with a fine of Rs. 1000/- each. On an appeal, the High Court, taking into consideration various extenuating factors, reduced the said sentence to a period of five years. Under those circumstances, keeping in view the gravity of the offence committed, the Hon'ble Supreme Court refused to make any further reduction in the quantum of sentence. 15. In Chaman v. State of U.P., (2003) 3 SCC 36 , the appellant wherein was convicted for the offence under Section 304 Part-11, IPC and sentenced to five years rigorous imprisonment. Maintaining the conviction and sentence, the Hon'ble Apex Court declined to make further reduction in the sentence. 16. In Bhojappa Hanamanthappa Choudannavar v. State of Karnataka, (2004) 10 SCC 177 , the appellant therein was convicted for the offence under Section 304 Part Il, IPC and sentenced to three years rigorous imprisonment. The Hon'ble Apex Court modified the sentence by imposing a fine of Rs. 25,000/- payable to the father of the deceased as compensation. 17. In Saravanan & Ors. v. State of Pondicherry, 2005 (1) WLC (SC) Cri. 285 : AIR 2005 SC 57 , the appellants therein were convicted for the offence under Section 304 Part II, IPC and sentenced to two years rigorous imprisonment and the Apex Court up-held the judgment of conviction and order of sentence. 18. In Bagdi Ram v. State of Madhya Pradesh, 2004 (1) WLC (SC) Cri. 297 : 2004 Cr.L.J. 632 (SC) , the appellant therein was convicted for the offence under Section 304 Part-I, IPC and sentenced to eight years imprisonment; on appeal to the Hon'ble Apex Court, the sentence was considered to be on higher side and the Apex Court reduced the sentence to three years rigorous imprisonment. 19. 297 : 2004 Cr.L.J. 632 (SC) , the appellant therein was convicted for the offence under Section 304 Part-I, IPC and sentenced to eight years imprisonment; on appeal to the Hon'ble Apex Court, the sentence was considered to be on higher side and the Apex Court reduced the sentence to three years rigorous imprisonment. 19. Keeping in view the aforesaid decisions of the Hon'ble Supreme Court and looking to the peculiar facts and circumstances of the case that the appellant did not intend to cause death of the deceased; it was the deceased who first abused the appellant, threatened him and lit the fire to the appellant's fodder which was completely destroyed and as such provoked the appellant depriving him power of self-control, which resulted in causing injuries to the deceased on non-vital parts of body, in my view, the ends of justice would be met by sentencing the appellant to four years rigorous imprisonment; however, enhancing the sentence of fine of Rs. 5000/-, which on being deposited, be paid to the widow of the deceased. 20. Consequently, the appeal is partly allowed. The judgment and order dated 23.7.2003 passed by the Additional Sessions Judge (Fast Track), Jodhpur in Sessions Case No. 89/2003, is modified by altering the conviction of the appellant from Section 304 Part-I, IPC to Section 304 Part II, IPC and reducing the substantive sentence to four years. However, sentence of fine is enhanced to Rs. 5000/-, which on being deposited, be paid to PW 1 Samu Devi, the widow of deceased and in default of payment of fine, the appellant shall further under to one month's simple imprisonment.Appeal Partly Allowed by Modifying Sentence. *******