JUDGMENT 1. - This criminal appeal was filed by accused-appellant Kanhaiya Lal Jaiswal against the judgment dated 3.2.2009 passed by Addl. Sessions Judge, Nimbahera District Chittorgarh in Sessions Case No. 8/2008, whereby the accused-appellant was convicted and sentenced under Section 202 of Indian Penal Code by life imprisonment along with a fine of rupees on thousand and in default of payment of fine, he was ordered to further undergo one month's simple imprisonment. 2. The matter relates to F.I.R. No. 32/2008 of Police Station, Nimbahera. The accused-appellant is in jail since 2.2.2008. 3. It has been argued by the learned Counsel for the accused-appellant that the dispute was regarding irrigation of agricultural farm of accused-appellant and an altercation took place in morning and then after a little interval of time, as per prosecution, said accused-appellant Kanhaiya Lal came with an axe in his hand and he inflicted one fatal injury on the head of Rajmal @ Raju with the axe and he succumbed to the head injury on the next day in the hospital. It has been argued on behalf of the accused-appellant that the accused-appellant is not guilty at all and he should be acquitted and in the alternative, the argument advanced in this matter by the learned Counsel for the accused-appellant is to the effect that there was no repeated injury and it is only because of altercation which took place between accused and Rajmal (since deceased) and because of said anger, the accused might have inflicted the injury on the head of Rajmal causing his death. It has been argued that at the most, it can be said that act by which the death was caused was done with the intention of causing such bodily injury as was likely to cause death. 4. The learned Public Prosecutor has opposed the prayer of the accused-appellant in general. 5. In the circumstances of the case, if we look into the statements of the witnesses then following facts come to the no notice of this Court: 6. PW-1 Dr. K. Asif states that Rajmal was examined by him and following injuries were found on his body:- "(i) Incised wound 7 cm x 0.5 cm skin deep and bone visible on the middle part of the head. (ii) abrasion 1 cm x 0.5 cm on the middle portion of right leg." The injury report Ex.P-1 was exhibited by Dr. K. Asif. (ii) abrasion 1 cm x 0.5 cm on the middle portion of right leg." The injury report Ex.P-1 was exhibited by Dr. K. Asif. 7. PW-15 Dr. Anees Ahmed has stated that post-mortem of the dead body of Rajmal was conducted by him on 27.1.2008 at about 5.45 A.M. and following injuries were found on the dead body of Rajmal:- "(1) stitched would on head, 12 cm length in the middle part of the head; (2) stitched wound of 2 cm length on forehead; (3) abrasion 1 cm x 1 cm on right leg." 8. He further states that when the skull was opened then a fracture of 4 cm length was found in the parietal and occipital bones. It was further stated that said head injury was sufficient to cause death in ordinary course of nature. The post-mortem report Ex.P-17 has been exhibited by this doctor. Thus, it can be said that it was only one injury caused by axe on the head of Rajmal which caused his death on the next day. 9. Most important witness in the case is PW-5 Ms. Kailashi she is aunt of deceased. She says that on 26.1.2008, she was returning from the farm with a bundle of grass on her head. She further states that in her presence Kanhaiya Lal attacked Raju on his head by an axe. She states that Raju fell down and on her cries, Dilip, Gopal and Bhag Chand had reached the spot. The accused ran away after single blow. In her cross-examination, this witness is found trustworthy and perfectly reliable. 10. PW-6 though hostile, has stated that he had seen Raju in injured condition and Kanhaiya Lal was running from the spot. PW-7 Bhag Chand also narrates the same story. 11. PW-2 Dilip is brother of deceased Rajmal. He states that his brother Rajmal was busy in irrigation the field and he was also there. He further states that on 26.1.2008, accused Kanhaiya Lal came from the village with an axe in his hand and without saying anything, the accused attacked on the head of Rajmal with an axe. He states that only one injury was caused by Kanhaiya Lal and Rajmal fell down. He says that it is only because of dispute regarding irrigation of fields that accused attacked his brother. He states that only one injury was caused by Kanhaiya Lal and Rajmal fell down. He says that it is only because of dispute regarding irrigation of fields that accused attacked his brother. He further states that he had taken his brother to Nimbahera Hospital and then report was also lodged by him in the police. The report Ex.P-2 has been exhibited by this witness. He states that Smt. Kailashi Bai had also seen the incident. In his cross-examination, this witness could not be shattered from his examination-in-chief. He further states that Gopal and Bhag Chand had also seen Kanhaiya Lal running from the place of incident. 12. PW-9 Amba Lal states that the axe was recovered in his presence which was recovered by the police at the instance of accused Kanhaiya Lal from agricultural farm of Bheruba. PW-13 Puran Mai, S.I. has also stated that he had arrested the accused and then during police custody accused Kanhaiya Lal had given an information for recovery of axe. He says that the said information was recorded by him in Ex.P-19 and then he had recovered an axe used in the crime by the accused at his instance from an agricultural farm of Bheruba. This witness also could not be shattered in his cross-examination. There is no reason to disbelieve this witness. 13. Blood stains found on the said axe [kulhari), have been mentioned in FSL report (Ex.P-22) which has also been duly proved and it has been mentioned in this report that the seized articles had reached FSL in properly sealed condition bearing impression which tallied with specimen seal impression forwarded. 14. In his statement under Section 313 of the Code of Criminal Procedure, the accused has given no explanation about the charges levelled against him. No defence witness had been produced by the accused-appellant during the trial. 15. In the circumstances of the case, it is proved beyond doubt that Rajmal had died because of single injury caused on his head by accused-appellant Kanhaiya Lal by an axe. No defence witness had been produced by the accused-appellant during the trial. 15. In the circumstances of the case, it is proved beyond doubt that Rajmal had died because of single injury caused on his head by accused-appellant Kanhaiya Lal by an axe. It is also an admitted fact that there was no repeated injury and further more, it is also on record that in the morning of the day of the incident, there was an altercation between and the deceased and so it can be said that in the circumstances of the case, that there was no intention to cause death on the part of the accused-appellant but the act by which the death was caused appears to have done with the intention of causing such bodily injury as was likely to cause death and so his conviction deserves to be altered from Section 302 of Indian Penal Code to Section 304 Part I of Indian Penal Code. We get support from the following ruling of the Hon'ble Apex Court also:- (1) Kapoor Singh v. State of Pepsu, AIR 1956 SC 654 ; (2) Shanmugam @ Kulahdavelu v. State of Tamil Nadu, AIR 2003 SC 209 ; (3) Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 ; (4) Mahesh v. State of Madhya Pradesh, (1996) 10 SCC 668 ; (5) Jagroop Singh v. State of Haryana, (1981) 3 SCC 614 . 16. Accordingly, this appeal deserves to be partly accepted as above and so the appeal of the accused-appellant is hereby partly accepted as above and it is hereby ordered that the conviction of accused-appellant under Section 302 of Indian Penal Code is hereby quashed and set aside and in its place, he is convicted only under Section 304 Part I of Indian Penal Code and his sentence is reduced to eight years' rigorous imprisonment and a fine of rupees one thousand. In default of payment of fine, the accused-appellant with have to suffer one month's additional simple imprisonment. The accused-appellant is in jail in this case since 2.2.2008. This period of custody should be adjusted under Section 428 of the Code of Criminal Procedure against his substantive sentence in this case as per procedure. The record of the Trial Court along with a copy of this judgment should be sent back immediately. The accused-appellant is in jail in this case since 2.2.2008. This period of custody should be adjusted under Section 428 of the Code of Criminal Procedure against his substantive sentence in this case as per procedure. The record of the Trial Court along with a copy of this judgment should be sent back immediately. Two copies of this judgment should be sent to the Superintendent, Central Jail, Udaipur, so that one copy of it j be kept for record in jail and one copy be supplied to the accused-appellantAppeal partly allowed. *******