JUDGMENT 1. - To question the conviction recorded for the offence punishable under Section 302 Indian Penal Code and the sentence awarded for life term with fine under the judgment and order dated 15.12.2005 by learned Additional Sessions Judge (Fast Track) No. 1, Jodhpur, this appeal is preferred. 2. The facts of the case as unfolded in the trial are that on 4.12.2004 a written report Ex.P-12 was submitted by one Shri Moti Singh to the Station House Officer, Police Station Shastri Nagar, Jodhpur, with assertion that he received an information from Shri Maan Singh, Assistant Sub Inspector and Shri Babu Singh, Sub Inspector, Rural Police Lines, Jodhpur about killing of his brother-in-law Shri Bhanwar Singh at Jaljog Circle. On basis of the injuries available on the corpus of Bhanwar Singh the informant apprehended commission of his murder. 3. Acting upon the information received, a case was registered and after regular investigation the accused appellant was charge-sheeted before the competent Court. After committal of the case to the Court of Sessions, a charge for commission of an offence punishable under Section 302 Indian Penal Code was framed and on denial of the same trial commenced. The prosecution supported its case with the aid of 15 witnesses, by exhibiting 51 documents and two articles. An opportunity was given to the accused appellant to explain the adverse circumstances available in the prosecution evidence. Though the three persons cited as eye-witnesses by the prosecution did not support the prosecution story, the trial Court on basis of the circumstantial evidence available held the accused appellant guilty for the charge settled. 4. In appeal, the argument advanced by counsel for the appellant is that the circumstances available, are not sufficient to indicate definite involvement of the accused in the crime, thus, the conviction is unsustainable. 5. Per contra, learned Public Prosecutor urged that the statements of PW- 6 Shri Govind Lal, recovery of bread cutting knife ('Naan Chaku'), broken bottle of soft drink with blood stains and availability of blood stains on the clothes of accused matching with the blood group of deceased are circumstances sufficient to arrive at only one conclusion i.e. involvement of the accused appellant in the crime in question. 6. Heard counsel for the appellant and the learned Public Prosecutor. 7. 6. Heard counsel for the appellant and the learned Public Prosecutor. 7. As per the medical evidence available, the cause of death of Shri Bhanwar Singh was coma due to antemortem head injury. The external injuries which were noticed in the postmortem report (Ex.P-32) are as under : (1) Lacerated wound 3 x 0.5 cm bone deep near right eye brow medially. (2) Lacerated wound 3.5 x 2.5 cm bone deep over right side of parietal region near middle and on mid line with diffuse swelling over scalp. Reddish clotted blood. (3) Lacerated wound slightly curved 2.5 x 1.5 cm lateral angle of left eye with diffuse swelling around it. Left eye is black eye. Sub-conjunctional hemorrhage 1 x 0.5 cm lateral side of conjunctional (left) (4) Bruise 23 x 9 cm left side of cheek reddish in colour with diffuse swelling reddish in colour. (5) Abrasion 1 cm long just below left eye on the cheek. (6) Swelling on the nose. (7) Lacerated wound 2 x 0.5 cm left side of chin. (8) Multiple abrasion of size 1 x 0.5, 0.5 x 0.5 cm with the gape of 0.5 cm near mid line of chin submandibular area. (9) Multiple lacerated wound with multiple abrasion crossing each other uncountable, irregular over anterior aspect of middle of neck 7 x 6 cm area. (10) Lacerated wound 4 x 2.5 cm skin deep over right side of neck supraclavicular area on right side base of neck. (11) Abrasion 8 x 1 cm over right side of neck upper part 3 cm below (right) ear lobule. (12) Sub scalp haematoma fronto parietal and left temporal and occipital region at places reddish in colour. 8. On basis of the medical evidence available on record there is no doubt about culpable homicide of Shri Bhanwar Singh. 9. So far as the eye-witnesses are concerned, they have not supported the prosecution case, however, PW-6 Govind Lal, an independent person, in quite specific terms stated that in the night of 3.12.2004 at about 10.00 PM some hot talks occurred between Bhanwar Singh and Ram Singh and they indulged in a combat. Accused Ram Singh was having a pipe with chains in his hands and a from that was given to Bhanwar Singh. On intervention by this witness Ram Singh left Bhanwar Singh and proceeded towards Jaljog Circle. Accused Ram Singh was having a pipe with chains in his hands and a from that was given to Bhanwar Singh. On intervention by this witness Ram Singh left Bhanwar Singh and proceeded towards Jaljog Circle. After some time one unknown person came and informed that Bhanwar Singh was giving beating by Ram Singh at a little distance. 10. PW-14 Shri Bhanwardan Ratnu, being Investigating Officer, narrated all the steps taken during investigation. During the course of investigation, on basis of the information supplied by accused a bread cutting knife ('Naan Chaku') was recovered. The 'Naan Chaku' was having a round pipe shaped handle with a chain of rings. The rings available on bread cutting knife were found to be similar to the rings seized from the place of occurrence. A broken bottle of soft drink with blood stains was also recovered. The clothes worn by accused at the time of incident too were recovered and those were having blood stains having "A" +ve group of blood. It is pertinent to note that as per Forensic Science Laboratory report Ex.P-49 the blood stains available on the clothes of accused were matching with the blood group of deceased Bhanwar Singh. Blood of human origin was also found on the broken bottle of soft drink, however, group of that remained inconclusive.. Suffice to notice that no explanation is extended by the accused for having blood stains on his clothes. 11. The prosecution evidence referred above forms a series of circumstances in the terms that the accused after having some hot talks with deceased, indulged in a combat and he gave certain blows to him. On intervention by PW-6 Govind Lal accused left deceased, but after some time he again indulged in combat and gave beating to the deceased. True it is, the fact about subsequent involvement in a quarrel was not seen by PW-6 Govind Lal, however, he stated this fact being told to him by some other person. we do not find any reason to disbelieve testimony of PW-6 Govind Lal who is otherwise an independent person. True it is, the fact about subsequent involvement in a quarrel was not seen by PW-6 Govind Lal, however, he stated this fact being told to him by some other person. we do not find any reason to disbelieve testimony of PW-6 Govind Lal who is otherwise an independent person. The recovery of bread cutting knife which was having a ring chain, similar to the rings seized from the place of incident, recovery of broken bottle of soft drink and recovery of blood stained clothes matching with the blood group of deceased, are other important circumstances and are sufficient to form a definite opinion about involvement of accused in the crime in question. As such, we do not find any wrong with the conclusion arrived by the trial Court about involvement of the accused in the crime in question. 12. The issue now survives is only with regard to nature of the crime committed by the accused. Learned trial Court held the accused appellant guilty for an offence punishable under Section 302 Indian Penal Code. However, on examination of the entire evidence, it reveals that at the first instance some hot talks occurred between the accused and the deceased and they indulged in a quarrel. The accused was having a bread cutting knife with him, wherefrom he gave a blow to the deceased. Pertinent to note here that the blow was not given from the sharp edged side, but from the handle which is pipe shaped. The corpus of deceased was having lacerated wounds only. Even from the bottle of soft drink, no effort was made by the accused to give incised wound. The accused, if was intending to kill Shri Bhanwar Singh, he had ample opportunity to do so, but he restrained himself to the extent of causing such a bodily injury that is likely to cause death. Thus, it can very well be said that Shri Bhanwar Singh died because of a fatal injury given by the accused but he was not intending to kill him. In such circumstances, the crime committed does not travel beyond an offence described under Section 304 part-II Indian Penal Code. 13. In view of the discussions made above, this appeal is allowed in part. The conviction of the accused appellant under Section 302 Indian Penal Code and the sentence for that are set aside. In such circumstances, the crime committed does not travel beyond an offence described under Section 304 part-II Indian Penal Code. 13. In view of the discussions made above, this appeal is allowed in part. The conviction of the accused appellant under Section 302 Indian Penal Code and the sentence for that are set aside. The accused is convicted under Section 304 part-II Indian Penal Code and he is sentenced for the period already undergone in prison with fine of Rs. 1000/-. In default of payment of fine the accused appellant shall be liable to further undergo one month rigorous imprisonment. The accused appellant be released from State custody forthwith, if not desired for any other cause;1Appeal partly allowed. *******