JUDGMENT 1. - Instant appeal, under Section 374 of Code of Criminal Procedure, 1973, has been preferred by appellant viz., Man Singh s/o. Ram Lal to assail the judgment dated 06.09.2005 passed by the Court of Additional Sessions Judge, (Fast Track) Bandikui, Camp Mahwa, District Dausa, whereby the appellant was held guilty for commission of offence punishable under Section 302 of Indian Penal Code for causing murder of Suka son of Revti (complainant). 2. Vide a separate order of even date, the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- and in default thereof to further undergo one month's simple imprisonment. 3. In the present case, criminal proceedings were set into motion on the basis of written-report (Exhibit-P/1) submitted by the complainant -Revti (PW-1). 4. In the written-report, the complainant - Revti (PW-1) stated that he is a neighbour of the appellant. On 20.10.2003 at around 03:00 P.M., the present appellant was giving beating to his wife, Dholi. In order to save herself, the wife of appellant came to the house of complainant. At that time, Prem wife of complainant and his son, Suka were also present in their house. Accused came armed with kulhari following his wife and came to the house of the Complainant. Revti (PW-1) and his son, Suka (deceased) restrained the appellant from giving beating to his wife. At that time, the appellant gave Kulhari blow on the chest of Suka, son of complainant, due to which he become unconscious. Complainant carried his son to the Hospital, Khairla. When they reached at the hospital, son had already died. Complainant by submitting report sought legal action. 5. It is to be noted here that the occurrence, in the present case, had taken place on 20.10.2003 at around 03:00 P.M., whereas written-report was submitted on 20.10.2003 at 04:15 P.M. by Station House Officer, Police Station, Salempur (Dausa). 6. On the basis thereof, formal First Information Report, bearing No.113/2003, (Exhibit-P/15) was registered on the same day at 05:45 P.M. at Police Station, Salempur, District Dausa. 7. Dr. Jagmohan Goyal (PW-13) on 20.10.2003 had conducted autopsy on the dead-body of Suka. 8. As per the Post Mortem Report, (Exhibit-P/10), the following injuries were found on the person of deceased:- (i) Stab wound on the chest just right to mid line on second inter costal space 2cm x 1cm x, thoracic cavity. 7. Dr. Jagmohan Goyal (PW-13) on 20.10.2003 had conducted autopsy on the dead-body of Suka. 8. As per the Post Mortem Report, (Exhibit-P/10), the following injuries were found on the person of deceased:- (i) Stab wound on the chest just right to mid line on second inter costal space 2cm x 1cm x, thoracic cavity. The said injury had also caused fracture of sternim. (ii) Left side thoracic cavity was filled with blood. (iii) Pericarium of left side was damaged. (iv) Antrum vein was cut. 9. According to the opinion of the Doctor, cause of death was Syncope, due to injury caused to the heart leading to excessive bleeding. 10. The appellant, being solitary accused was charged for commission of offence punishable under Section 302 of Indian Penal Code for having caused murder of Suka. 11. Revti appeared as prosecution witness No.1 and stated that on the day of occurrence, Man Singh was beating his wife Smt. Dholi. They were sitting in their house. Man Singh had injured his wife Dholi. Mukhraj, Iliyas, Babloo and Ramcharan lifted Dholi and brought her to their house. Mukhraj said that Dholi be taken to hospital, otherwise, she will die. When persons after leaving Dholi in the house of accused were returning, Man singh armed with Kulhari came to their house. He gave lathi blow to the witness. He went inside the house. Suka came forward and questioned accused regarding his conduct. Upon this, accused said that first he will see him. Accused gave kulhari blow on his chest. Suka fell on the ground. Accused ran away from the spot. Complainant brought his son to the hospital, where he was declared dead. 12. In cross-examination, this witness stated that he had not seen accused giving beating to his wife. When people brought Dholi to his house, he saw various injuries on her body. 13. Birju (PW-2), another eye-witness in the Court stated that Suka died, as to who caused injury to him, this fact is not known to him. This witness was declared hostile. 14. Guddi (PW-3) stated that on the day of occurrence at about 03:00 P.M. his father-in-law Revti, mother-in-law Prem, sister-in-law Roopanti and brother-in-law (devar) Suka were present in the house. Ramlal is brother of her father-in-law. She further stated that the marriage of her sister was solemnized with accused Man Singh son of Ramlal. This witness was declared hostile. 14. Guddi (PW-3) stated that on the day of occurrence at about 03:00 P.M. his father-in-law Revti, mother-in-law Prem, sister-in-law Roopanti and brother-in-law (devar) Suka were present in the house. Ramlal is brother of her father-in-law. She further stated that the marriage of her sister was solemnized with accused Man Singh son of Ramlal. Man Singh was beating his wife Dholi. She became unconscious. Illiya, Mukhraj, Babloo and Bhupendra brought Dholi to their house. They told that Man Singh had given beating to Dholi. She be taken to Hospital, Khairla. Meanwhile, Man Singh came armed with a kulhari. Man Singh gave a kulhari blow to her father-in-law. He went inside the house. Suka, brother-in-law (devar) of this witness came and questioned as to why accused gave an injury to his father. On this, accused Man Singh gave kulhari blow on chest of Suka who fell on the ground. Accused ran away from the spot. 15. In cross-examination, this witness stated that it is correct that Man Singh had given only one blow to Suka, deceased. 16. Mukhraj (PW-4) corroborated the witnesses to the extent that the appellant had caused kulhari blow to Suka, deceased. Mohammad Illiyas (PW-5), Chauthi (PW-6) and Kallaram (PW-7) independent witnesses have not supported prosecution case, and were declared hostile. Laxman (PW-8) stated that appellant had caused injury to his brother, Suka, due to which he died. To the similar effect is the statement of Prem (PW-9), mother of deceased, Suka. Hansraj (PW-10) has not supported the prosecution case. Bhona (PW-11) has also not supported the prosecution case regarding recovery of kulhari. 17. Brajesh Kumar Jatawat (PW-12), being Investigating Officer was examined to prove Inquest/Panchnama of the dead-body (Exhibit-P/10). He proved preparation of Panchnama, site-plan of the spot (Exhibit-P/3) and recording of statements of the witnesses. 18. Radheyshyam (PW-14) stated that on the day of occurrence, Suka and present appellant had an exchange of hot words " ysok nsoh gks xbZA ", and accused caused an injury to Suka. 19. Ramcharan (PW-15) stated that Man Singh gave beating to his wife, thereafter Revti brought wife of the accused to the house of complainant. Accused also gave kulhari blow to Revti. When Suka objected to the same, the accused caused injury on his chest. 20. Rajesh Sharma (PW-16) had proved various facets of investigation, including recovery of a kulhari from the appellant. 21. Accused also gave kulhari blow to Revti. When Suka objected to the same, the accused caused injury on his chest. 20. Rajesh Sharma (PW-16) had proved various facets of investigation, including recovery of a kulhari from the appellant. 21. Brajesh Kumar Jatawat, (PW-12) had presented charge-sheet against the appellant. 22. The statement of accused-appellant under Section 313 of the Code of Criminal Procedure, 1973 was recorded. He denied all the incriminating evidence put to him and pleaded innocence. 23. No witness was examined in defence. 24. Thereafter, prosecution closed its evidence. 25. Mr. Satyapal Poshwal, the learned counsel appearing for the accused-appellant, in view of number of the witnesses examined by the prosecution and the fact that the occurrence had taken place in the house of the complainant, and his son was killed by the appellant, has not assailed the testimony of the witnesses. Learned counsel, however, submitted that the parties are closely related. Learned counsel further submitted that Guddi (PW-3) has stated that the father of the appellant is brother of complainant - Revti. 26. It has come in the evidence that on the day of occurrence, the appellant was giving beating to his wife and due to intervention of the deceased, he had caused a single injury to Suka, the deceased. 27. This fact has been clearly stated in the First Information Report, but later-on in the Court, the witness has improved the version and stated that Dholi was brought to their house by few persons. However, the persons who allegedly brought Dholi wife of the appellant to the house of complainant have not supported prosecution case and were declared hostile. 28. Be that as it may, we find merit in the contention of the learned counsel appearing for the accused-appellant that in the heat of passion upon a sudden quarrel, the appellant had lost temper; when the deceased restrained him and intervened in the quarrel between husband and wife, the appellant has caused kulhari blow. Testimony of Radheyshyam (PW-14) to the extent that between deceased and accused " ysok nsoh gks xbZA " cannot be ignored. 29. Taking totality of circumstances, we are of the view that in the present case, offence, if any, will not fall under Section 302 I.P.C. but would fall under Section 304 Part-II I.P.C. 30. Testimony of Radheyshyam (PW-14) to the extent that between deceased and accused " ysok nsoh gks xbZA " cannot be ignored. 29. Taking totality of circumstances, we are of the view that in the present case, offence, if any, will not fall under Section 302 I.P.C. but would fall under Section 304 Part-II I.P.C. 30. Consequently, we convert the conviction of the appellant from offence under Section 302 I.P.C. to offence under Section 304 Part-II I.P.C., set aside life imprisonment awarded by the trial Court; and sentence the appellant to maximum sentence prescribed for the offence i.e. ten-years rigorous imprisonment with a fine of Rs. 10,000/- (Rupees Ten Thousand Only). In default thereof, he shall further undergo six month's rigorous imprisonment.With the above modification in the offence and sentence, the present appeal stands disposed of. Appeal disposed of. *******