JUDGMENT 1. - Shankar @ Shankarya, appellant herein, along with Har Bai, was put to trial before learned Additional Sessions Judge, (Fast Track) Gangapur City, who vide judgment dated April 8, 2002, while acquitting Har Bai, convicted and sentenced the appellant as under : U/s. 302 IPC To suffer imprisonment for life and fine of Rs. 10001- and in default to further suffer simple imprisonment for two months. U/s. 323 IPC : To suffer rigorous imprisonment for six months. Substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on July 8, 2001 at 9.15 PM SHO Police Station Vazirpur reached to the house of Hari Mohan (Pw.5) situated in village Phulwada, Peepli ka Math and recorded Parcha Bayan of Hari Mohan wherein he stated that on the said day around 3 PM Shankar, Har Bai, Ram Siri, Samay and Sumer dragged him and his wife Keshi (since deceased) and took them to the house of Shankar. His hands and legs got tied by them with rope and he was given beating with Axe and Lathi. They squeezed the neck of Keshi and gave beating to her with legs, fists and stones as a result of which Keshi died on the spot. On that parcha bayan case under sections 147, 148, 149, 302 and 379 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, accused were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Gangapur City. Charges under sections 148, 302/149, 323 and 324/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 8 witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. No witness in support of defence was however examined. Learned trial Judge on hearing final submissions while acquitting co-accused Har Bai convicted and sentenced the appellant as indicated above. 3. Having given our anxious consideration to the submissions advanced before us we notice that death of Keshi was homicidal in nature. No witness in support of defence was however examined. Learned trial Judge on hearing final submissions while acquitting co-accused Har Bai convicted and sentenced the appellant as indicated above. 3. Having given our anxious consideration to the submissions advanced before us we notice that death of Keshi was homicidal in nature. A look at Post Mortem Report (Ex.P-2) reveals that ante mortem bruise 15 4 cm x 4 cm in Right Parietal bone 6cm above the ear, lightly swellon was found on the dead body. No mark of ligature on neck or orifice of ear was however seen. In the opinion of Dr. Hans Raj Meena (Pw.1) the cause of death was Coma due to head injury. As per injury report (Ex.P-1) following injuries were found on the person 20 of Hari Mohan (Pw.5) : 1. Swelling with tenderness on whole of Dorsal surface of left hand. 2. Abrasion 2 cm x ⅓ cm on left side of neck. 3. Multiple Abrasions (Teeth shaped) on left arm. 4. Multiple Abrasion (teeth shaped) on tip of left shoulder joint. 5. Linear Abrasion 61/2 cm x 3 cm on back of neck. 6. Swelling with tenderness 4 cm x 1/2 cm on back of Right chest. 7. Incised wound ⅔ cm x 1/2 cm x ⅓ cm on lower most part of middle of anterior surface of left leg. 8. Lacerated wound 1 cm x ⅓ cm x ⅓ cm anterior surface of middle of left leg. 9. Swelling with tenderness 11/2 cm x 1 cm on left frontal bone. 10. Swelling with tenderness 6 cm x 4 cm latero Right leg. 11. Bruise 3 cm x 3 cm as back of right buttock. 4. In his evidence at the trial Hari Mohan (Pw.5) deposed what he 35 stated in the parcha bayan. He however made slight improvement. According to him it was Shankar who inflicted lathi blow on the head of Keshi. Jabre (Pw.2) however stated that Shankar and Hari Mohan were real brothers and they quarreled in the house of Shankar Keshi made attempt to intervene and had a fall and sustained injury on her head. He however made slight improvement. According to him it was Shankar who inflicted lathi blow on the head of Keshi. Jabre (Pw.2) however stated that Shankar and Hari Mohan were real brothers and they quarreled in the house of Shankar Keshi made attempt to intervene and had a fall and sustained injury on her head. Jabre deposed thus : " ;g lgh gS fd >xM+k 'kadj eqyfte ds ?kj ij gqvk FkkA 'kdj eqyfte gjheksgu dk lxk cM+k HkkbZ gSA ;g lgh gS fd 'kadj eqyfte dh nks HkSal gfjeksgu ds [ksr esa pyh xbZ Fkh bl dkj.k gjheksgu o dS'kh p<+dj 'kadj ds ?kj ij x;s FksA ;g lgh gS fd nksuksa HkkbZ 'kadj o gjheksgu ds chp vkil esa ekjihV gks jgh FkhA dS'kh budks cpkus dk iz;kl dj jgh FkhA ;g fcYdqy gdhdr gS fd /kDdkeqDdh ds vanj dSlh fxj xbZ vkSj mlds flj ij pksV vkbZ FkhA " 5. Factual situation of the case is as under : (i) The appellant who was the real brother of informant Hari Mohan, did not drag Hari Mohan and his wife Keshi to his house, but the informant and Keshi themselves went to the house of appellant to quarrel. (ii) The informant and the appellant fought together and Keshi intervened. (iii) The appellant gave a blow with lathi on the head of Keshi that proved fatal. 6. Evidently the appellant had no previous enmity with the deceased. The incident occurred all of a sudden and in the heat of passion the appellant inflicted one blow with lathi on the head of deceased that proved fatal. The appellant did not behave in a cruel or unusual manner, therefore, it can only be presumed that the appellant had knowledge that the blow inflicted by him was likely to cause death of deceased, even though he had no intention of causing death or such bodily injury as was likely to cause death. Invoking Exception IV to Section 300 IPC we hold that appellant is guilty under Part II of Section 304 IPC. The appellant is also found guilty under section 323 IPC for causing injuries to Hari Mohan. 7. Invoking Exception IV to Section 300 IPC we hold that appellant is guilty under Part II of Section 304 IPC. The appellant is also found guilty under section 323 IPC for causing injuries to Hari Mohan. 7. For these reasons, we partly allow the appeal and instead of section 302, we convict the appellant under section 304 part II IPC and looking to the fact that the appellant has already undergone confinement for a period of more than five years and eleven months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We, however, maintain the sentence and conviction awarded to the appellant under section 323 IPC. The appellant, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case.The impugned judgment of learned trial stands modified as indicated above.Appeal Partly Allowed. *******