JUDGMENT 1. Being aggrieved by judgment dated 12.12.2012 passed by learned Additional Sessions Judge, Dungarpur in Sessions Case No. 31/2011 this appeal is preferred. 2. The accused-appellant by the judgment impugned has been convicted for the offence punishable under Section 302 I.P.C. and has been sentenced to undergo life term imprisonment with a fine of Rs. 10,000/-. He is further required to undergo two years' rigorous imprisonment in the event of default of payment of fine. 3. Briefly stated, facts of the case are that on 21.2.2011 a written report was submitted by Shri Shankar Lal (PW-1) to Shri Ved Prakash (PW-17) at General Hospital, Dungarpur with assertion that on 20.2.2011 a dinner was organised on the eve of 'nata' of Pushpa D/o. Smt. Nanda. About 100 persons participated in the dinner, however, due to shortage of meals some altercation took place among the persons present and in the course of that a 'lathi' blow was given by the accused-appellant to Nand Lal. Nand Lal fell down and died on the spot. 4. On the basis of information given, a case was registered for the offence punishable under Sections 302 read with 34 I.P.C. against the present appellant and one Roopsee and after regular investigation charge-sheet was filed before the competent court. The case was then committed to the Court of Sessions. 5. Suffice to mention here that during course of investigation, autopsy was conducted upon the corpus of deceased Nand Lal and as per report of that, the cause of death was respiratory failure due to head injury. The corpus of deceased Nand Lal was having only a single head injury. The Investigating Agency also recovered a 'lathi' at the instance of accused Prakash. 6. The trial court after taking into consideration the material available and also the report filed by the Investigating Agency as per provisions of Section 173 Cr. P.C., framed charges against the accused persons for the offence punishable under Sections 302 read with 34 I.P.C. and on denial of the same, the trial commenced as desired. 7. During the course of trial, the prosecution supported its case with the aid of five eye-witnesses, those are, PW-1 Shankar Lal, PW-4 Ramesh, PW-15 Arvind and PW-16 Kalu. The medical evidence was adduced by examining testimony of PW-13 Dr. B.P. Verma. 7. During the course of trial, the prosecution supported its case with the aid of five eye-witnesses, those are, PW-1 Shankar Lal, PW-4 Ramesh, PW-15 Arvind and PW-16 Kalu. The medical evidence was adduced by examining testimony of PW-13 Dr. B.P. Verma. Shri Ved Prakash (PW-17), the Investigating Officer, narrated the facts relating to the steps taken during the course of investigation. The prosecution also got 43 documents exhibited to substantiate the charge. 8. An opportunity to explain the adverse and incriminating circumstances available in prosecution evidence was accorded to the accused persons as per provisions of Section 313 Cr. P.C., wherein they in general termed the entire evidence false and pleaded their innocence. In defence, statements of DW-1 Shri Chandu and Babu Lal (DW-2) were recorded. A document too was exhibited . 9. The trial court after examining the entire material available on record and also after hearing learned Public Prosecutor and leanred counsel for the accused persons vide the judgment and order dated 12.12.2012 held the present appellant guilty for the offence punishable under Section 302 I.P.C. and the co-accused Roopsee was acquitted from the charge relating to Section 302/34 I.P.C., but was found guilty for the offence punishable under Section 323 I.P.C. 10. In appeal, the only argument advanced by Shri S.S. Shaktawat, learned counsel for the accused-appellant is that even by accepting the prosecution case as advanced, no offence punishable under Section 302 I.P.C. is at all made out, though that may constitute an offence punishable under Section 304 Part-II I.P.C. 11. Learned Public Prosecutor on the other hand opposed the appeal with the assertion that the accused-appellant gave a 'lathi' blow on a very vital part of deceased's body with the knowledge and intention that it may cause death, therefore, the offence committed is nothing but a murder. 12. We have considered the rival arguments and also examined entire evidence available on record. 13. Looking to the medical evidence available on record, it is not in doubt that the death of Nand Lal is homicidal one, thus, the question before us is that whether the death is murder or a homicide not amounting to murder ? 14. 12. We have considered the rival arguments and also examined entire evidence available on record. 13. Looking to the medical evidence available on record, it is not in doubt that the death of Nand Lal is homicidal one, thus, the question before us is that whether the death is murder or a homicide not amounting to murder ? 14. PW-1 Shankar Lal, who submitted First Information Report stated before the court that on the fateful day at about 9:00 pm several persons collected at the residence of Soma, where accused Prakash had some quarrel with Soma about less quantity of cooked rice. During the course of quarrel deceased Nand Lal intervened and accused Prakash gave him a 'lathi' blow, consequently he fell down and died at the spot. PW-4 Ramesh, who happens to be the son of deceased Nand Lal also narrated the facts in the same tune as stated by PW-1 Shri Shankar Lal. Pertinent to notice that this witness in quite specific terms stated in cross-examination that the 'lathi' was taken by Prakash from the spot itself. The statements of other eye-witnesses PW-14 Arvind, PW-15 Soma and PW-16 Kalu are also in the same tune. The medical evidence also corroborate the factual aspect in relation to causing only a single injury on the head of deceased Nand Lal. 15. On examination of the entire evidence available on record, we are satisfied that as a matter of fact, head injury was caused by the accused-appellant due to sudden provocation and in the heat of the circumstances. He was not intending to cause death of Nand Lal as even the the weapon of offence was borrowed by the appellant from the spot itself. The fact that there was no preparation for causing any crime as happened also substantiates that the accused was not intending to cause death, though, he may be having knowledge that the bodily injury given may cause death. 16. In overall assessment of evidence, we find that head injury was certainly caused to Nand Lal by accused-appellant Prakash but that was due to sudden provocation and in heat of the circumstances, without having any intention to cause death, thus, the offence committed by him does not travel beyond the offence punishable under Section 304 Part-II I.P.C. The conviction recorded under Section 302 I.P.C. against the appellant, thus, is bad. 17. Accordingly, this appeal is allowed in-part. 17. Accordingly, this appeal is allowed in-part. Conviction of accused-appellant Prakash for the offence punishable under Section 302 I.P.C. is set aside. Accordingly the sentence awarded too is quashed. The accused-appellant is convicted for the offence punishable under Section 304 Part-II I.P.C. and is sentenced to undergo rigorous imprisonment for a period of five years with a fine of Rs. 2000/-, in the event of default in payment of fine, he shall be liable to further undergo simple imprisonment for a term of three months.Appeal partly allowed. *******