JUDGMENT 1. - Challenge in this appeal is to the judgment dated March 31, 2005 of the learned Sessions Judge Sawai Madhopur whereby the appellant was convicted and sentenced under section 302 IPC to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for 5 six months. 2. It is the prosecution case that on April 21, 2004 informant Kalyan (Pw.1) submitted a written report (Ex.P- 1) at Police Station Bonli to the effect that on the said day around 8-9 AM while his brother Ramesh was grazing sheeps, he was assaulted by Tika Ram, Tulsi Ram, Bhajan, Sanwal Ram, Hansa and Moti armed with lathis, Gandasi and Karwari. A school boy narrated the incident at 1.00 PM, thereafter he reached to the spot and carried dead body to the hospital. On that report case under sections 147, 148, 149 and 302 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Sawai Madhopur. Charge under section 302 IPC was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as witnesses. In the explanation under Section 313 Cr.P.C., the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. 3. A look at Post Mortem Report (Ex.P-12) reveals that following ante mortem injury was found on the dead body : Incised wound 8.5 cm x 6.5 cm x 4 cms clotted blood present and black colour blood oozing out from the wound cut off muscles facial big popliteal artery, vein nerve come out, Rt. fibula ⅔rd depth cut at posterior surface of Rt. fibula bone all injuries present to in Rt. popliteal fossa. In the opinion of Dr. Kajod Mal Meena (Pw.23) the cause of death was massive blood loss from big blood vessels of Rt. popliteal fossa. In the cross examination Dr. Meena admitted that had the deceased been immediately removed to the hospital, he could have been saved. 4. fibula bone all injuries present to in Rt. popliteal fossa. In the opinion of Dr. Kajod Mal Meena (Pw.23) the cause of death was massive blood loss from big blood vessels of Rt. popliteal fossa. In the cross examination Dr. Meena admitted that had the deceased been immediately removed to the hospital, he could have been saved. 4. It is contended by learned counsel appearing for the appellant that the FIR was lodged after the inordinate delay which makes it to be highly dubious. No witness had seen the incident and testimony of witnesses suffers from numerous incongruencies, which renders it to be highly doubtful, since the witnesses are highly partisan in nature and their testimony, if jettison on the anvil of human probabilities and objective circumstances gets under a grave penumbra of doubt. The prosecution has deliberately dissuaded itself from producing independent witnesses of the vicinity. which lead to draw an adverse inference against the prosecution. In such a situation, the testimony of witnesses requires close and stringent scrutiny. It is lastly contended that even if the prosecution case is accepted as it is than also it does not travel beyond section 304 Part II IPC. 5. Per contra, learned counsel for the complainant and learned Public Prosecutor supported the impugned judgment and took us through the evidence adduced at the trial to show that the charges against the assailants were established beyond reasonable doubt. 6. Having analysed the material on record, we notice that in the FIR several names of the assailants were disclosed but the Investigating Officer did not find any truth in the report and the charge sheet was filed only against the appellant. Ram Karan (Pw.2), Sanjay (Pw.3), Ramkesh (Pw.4), Ram Kanya (Pw.5) and Ramji Lal (Pw.7) are not the eye witnesses of the incident. All of them reached to the spot after the incident occurred. They saw injury on the foot of the deceased below his knee. The alleged school boy, who had appraised the informant about the incident, was not examined. Learned counsel for the appellant however has not assailed the impugned judgment on merits. He has only canvassed that in the facts and circumstances of the case charge under sections 302 IPC is not established. 7. The alleged school boy, who had appraised the informant about the incident, was not examined. Learned counsel for the appellant however has not assailed the impugned judgment on merits. He has only canvassed that in the facts and circumstances of the case charge under sections 302 IPC is not established. 7. Having closely scrutinised the testimony of the witnesses examined by the prosecution, we find that the appellant inflicted only one blow with sharp edged instrument on the non-vital part of the body of deceased and he did not repeat it. The fact that the appellant inflicted blow on the non-vital part of the body and did not repeat the blow is indicative that he did not intend to cause the death of the deceased. We also do not find any material to show that he had acted with premeditation. It appears to us that the act was done in a heat of passion. in a sudden fight and the appellant had not taken any undue advantage. Since appellant did not behave in cruel or unusual manner, it can be presumed that 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 is likely to cause death. Therefore, the appellant is found guilty of the offence punishable under Part II of Section 304 IPC. 8. For these reasons, we partly allow the appeal and instead of Section 302 IPC, we convict the appellant under section 304 part H IPC and sentence him to suffer rigorous imprisonment for five years and fine of Rs. 1000/- in default to further suffer six months rigorous imprisonment.The impugned judgment of learned trial stands modified as indicated above.Appeal Partly Allowed - Judgment Modified as above. *******