JUDGMENT 1. Challenge in this appeal is to the judgment dated May 05, 2003 of learned Additional Sessions Judge (Fast Track) No.1 Kota whereby appellant was convicted and sentenced under Section 302 IPC to suffer imprisonment for life and fine of Rs.5000/-, in default to further suffer rigorous imprisonment for one year. 2. It is the prosecution case that on November 12, 2002 Asha Ram (since deceased) and Devi Lal (Pw.19) were engaged in famine relief work. Around 3 PM on that day they were busy in chopping trees near the field of Ram Karan (father of appellant Mahaveer). Suddenly Ram Karan, Ram Kailash, Mahaveer, Buddhi and Lekh Raj armed with lathis and axes came over there and gave beating to Asha Ram and Devi Lal. They were removed to the hospital. Parcha Bayan (Ex.P-19) of Devi Lal was recorded. On that parcha bayan case under sections 147, 148, 307 and 323 IPC was registered at Police Station Itawa and investigation commenced. Asha Ram died on November 30, 2002 and Section 302 IPC was added. After completion of investigation charge sheet was filed. In due course the case came up for trial before the court of learned Additional Sessions Judge (Fast Track) No.1 Kota. Charges under sections 302, 302/34, 324, 324/34 and 323 IPC were framed. The appellant denied the charges and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Sec.313 CrPC, 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 herein above. 3. As per injury report (Ex.P-14) Asha Ram sustained following injuries:- 1. Incised wound 3 1/2 x 1/2 x upto bone deep on parietal region or scalp Rt. side. 2. Bruise 6 x 2 1/2 on Rt. eye Infra orbital region.Cause of death of Asha Ram according to post mortem report (Ex.P-13) was Coma as a result of ante mortem head injury. 4. The only contention advanced on behalf of appellant is that single axe blow given by the appellant was as a result of provocation which he got in the heat of passion upon sudden quarrel therefore the appellant can be held guilty of culpable homicide not amounting to murder. This submission is however controverted on behalf of the State. 5. 4. The only contention advanced on behalf of appellant is that single axe blow given by the appellant was as a result of provocation which he got in the heat of passion upon sudden quarrel therefore the appellant can be held guilty of culpable homicide not amounting to murder. This submission is however controverted on behalf of the State. 5. Having scrutinised the material on record we notice that Ram Karan and his two sons viz. Ram Kailash and Mahaveer Prasad (appellant) were tried before the learned trial Judge. Out of them Ram Karan was convicted under section 323 IPC, whereas Ram Kailash stood acquitted. Devi Lal (Pw.19), who sustained injuries during the incident, deposed that the appellant gave single blow with axe on the head of Asha Ram. In his police statement (Ex.D-1) he attributed injury on the head of Asha Ram to one Buddhi Prakash. He however admitted that the incident occurred near the field of Ram Karan: " ;g lgh gS fd jkedj.k eqyfte ds [ksr ds ikl >xM+k gqvk FkkA " 6. Salient features of the case may be summarised thus:- (i) Single axe blow given by the appellant was as a result of provocation, which he got in the heat of passion, upon sudden quarrel. (ii) The incident occurred near the field of appellant's father. (iii) Asha Ram died on November 30, 2002 i.e. after 17 days of the incident. 7. The Court in these circumstances, does not think that appellant attacked the deceased with the intention of causing death, nor with the intention of causing such bodily injury as he knew to be likely to cause death, nor with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. The evidence on record clearly shows that it was the complainant party, who first took up cadged against the appellant and started chopping trees that were standing near the field of the accused party. The appellant however, must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it would be culpable homicide punishable under section 304 Part II IPC. 8. Part II of Section 304 IPC applies when the act is done with the knowledge that it is likely to cause death but without any intention to cause death. 8. Part II of Section 304 IPC applies when the act is done with the knowledge that it is likely to cause death but without any intention to cause death. In Hari Ram v. State of Haryana ( AIR 1983 SC 185 ) it was indicated that where a fatal injury is inflicted by the accused on a vital portion of the body of victim with a deadly weapon in the course of a sudden fight and unexpected quarrel, conviction under Section 304 Part II will be justified. 9. Ratio indicated in Hari Ram v. State of Haryana (supra) is squarely applicable to the facts of the instant case. 10. For these reasons, we dispose of instant appeal in the following terms:- (i) We partly allow the appeal and instead of section 302 IPC we convict appellant Mahaveer Prasad under section 304 part II IPC. Looking to the fact that Mahaveer Prasad has already undergone confinement for a period of more than five years and three months, the ends of justice would be served in sentencing him to the period already undergone by him in confinement. The appellant Mahaveer Prasad, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) The impugned judgment of learned trial court stands modified as indicated above. Applied Appeal Partly Allowed. *******