JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. 1. Rajpal @ Toni son of Shri Rattan Lal meena has preferred the present appeal through Jail. 2. Shri Deepak Soni was appointed as Amicus Curiae by the Rajasthan State Legal Services Authority. 3. Shri Deepak Soni at the outset in the Application filed for Suspension of Sentence bearing No.1129/2016, has submitted that five eye-witnesses, namely Ranglal (PW.5), Durgalal (PW.9), Lada (PW.10), Geeta Devi (PW.11) and Hemraj (PW.12) have deposed against the appellant and they have also been put to extensive cross-examination carried by defence counsel. Shri Soni has urged that considering the cause of occurrence, nature of injury, it is a good case for conversion of offence, hence, the sentence awarded upon the appellant be suspended as he has already undergone five years. 4. Shri N.S. Dhakar, learned Public Prosecutor, to oppose the prayer for suspension of sentence has submitted that since record is available with this court, appeal itself be decided. 5. Shri Deepak Soni, learned Amicus Curiae, has also prayed that accepting the prayer made by the learned Public Prosecutor, appeal be taken on board and same be decided. 6. We accept the joint prayer made by learned counsel for the parties and take D.B. Criminal Appeal No.735/2016 on board and proceed to decide the same. 7. Appellant was charged by the Court of Additional Sessions Judge, Kekri, District Ajmer for offence under Section 302 IPC. The charge stated that on 9.7.2011 at about 8.30 PM in the field of Sugna Meena, appellant caused blow with stone on the head of deceased Durga Lal and caused his death. Appellant pleaded not guilty and claimed trial. 8. Prosecution, to secure conviction of the appellant, examined twenty-one witnesses and proved on record documents, Exhibits- P.1 to P.28. All incriminating evidence was put to the appellant. He denied the incriminating circumstances and in his statement recorded under Section 313 Cr.P.C. took a stand that he has been falsely implicated. According to the accused, deceased was running under the influence of liquor due to which he fell down and died. 9. The trial court after examining the evidence, vide impugned judgment dated 2.6.2016 convicted the appellant for offence under Section 302 IPC and vide a separate order of even date sentenced him to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default thereof to undergo one year simple imprisonment. 10. 9. The trial court after examining the evidence, vide impugned judgment dated 2.6.2016 convicted the appellant for offence under Section 302 IPC and vide a separate order of even date sentenced him to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default thereof to undergo one year simple imprisonment. 10. Before we deal with the arguments raised by the learned counsel for the appellant, it will be apposite for us to take brief note of the prosecution case. 11. Om Prakash (PW.1) attested the inquest proceedings and proved on record Panchayatnama (Ex.P.1) and Supurdaginama (Ex.P.2) whereby dead body of the deceased was handed over to relations of the deceased. In cross-examination Om Prakash (PW.1) stated that police had obtained his signature on 4-5 papers at Police Station, Sawar. Ram Charan (PW.2) is also witness of Panchayatnama (Ex.P.1) and Supurdaginama (Ex.P.2) whereby dead body of deceased Durga Lal was handed over to the family of the deceased. This witness also in his cross-examination stated that police obtained his signatures on blank papers. Ramraj (PW.3) had also attested inquest/Panchayatnama (Ex.P.1). This witness also in cross-examination stated that he is not aware as to what was written on the papers on which his signatures were obtained by the Police. Ranjeet (PW.4) had also attested inquest proceedings. This witness in cross-examination also admitted that in Panchayatnama/inquest (Ex.P.1) is not having his signature. Ranglal (PW.5) in court stated that about ten months ago they had called a band party and Durga Lal, Babulal and Chauthmal all three brothers had come to play the band. After playing the band, Babulal and Chauthmal had left the place, whereas Durga Lal stayed at village Kala Khet. The witness further stated that near his house, there is Bada of Arjun Meena. At 8.30 PM he heard the cries and came out of his house and reached in the Bada of Prabhu Meena and saw that the accused was having stone in his hand and caused injury to the deceased. The witness further stated that Hemraj also arrived there. Thereafter the accused was seen running away from the spot in the torch light. The witness stated that when they reached near Durga Lal, they found that blood was oozing out of his head and Durga Lal had died. The witness stated that in the night he and Hemraj narrated the incident to Babulal. Thereafter the accused was seen running away from the spot in the torch light. The witness stated that when they reached near Durga Lal, they found that blood was oozing out of his head and Durga Lal had died. The witness stated that in the night he and Hemraj narrated the incident to Babulal. Ranglal (PW.5) admitted that deceased and his brothers had come to his village to play the band. In cross-examination the witness further stated that Durga Lal and his brothers had left the place. In cross-examination the witness further stated that Durga Lal is relative in his brotherhood nqxkZyky esjk dkdk&ckck dk HkkbZ yxrk FkkA He further stated that village Kala Khet where the occurrence had taken place, is 3 km. away from his house. Babulal (PW.6) stated that he received information that his brother Durga Lal has been caused injury by accused Rajpal with a stone. Durgalal (PW.9) in court deposed that one year ago he received a telephonic call from Hemraj Meena and he was informed that in the Bada of Prabhu, Durga Lal deceased had received a stone injury and died. This witness was declared hostile to the prosecution. Lada (PW.10) in court stated that 13-14 months ago in the night at 8.00-9.00 PM she heard a noise of altercation from Bada of Prabhu Raj Meena. Hemraj Meena went there running. Ranglal also went there. Ranglal raised a noise and said that Rajpal Meena had caused a stone injury on the head of Durga Lal. This witness further stated that she and Geeta had seen the accused running from the Bada. Geeta Devi (PW.11) also in court deposed that she heard a voice of Ranglal from the Bada of Prabhu Ram that accused had caused murder of Durga Lal by causing injury on his head with a stone. Hemraj (PW.12) is prominent witness of the prosecution. This witness stated that after hearing the voice of Ranglal he had gone towards Bada of Prabhu Ram Meena. This witness stated that he asked Lada and Geeta as to from where the noise is coming. They informed that the voice is coming from Bada of Prabhu Ram. The witness stated that he saw that the accused Rajpal with a stone had caused injury to Durga Lal. This witness stated that he asked Lada and Geeta as to from where the noise is coming. They informed that the voice is coming from Bada of Prabhu Ram. The witness stated that he saw that the accused Rajpal with a stone had caused injury to Durga Lal. This witness stated that Geeta and Lada who had arrived at the spot had seen accused Rajpal running away from the spot. 12. We need not notice statement of remaining witnesses as nothing substantial rest upon their testimony. 13. The trial Judge has not relied upon the testimony of Lada (PW.10) and Geeta (PW.11). This witness stated that Geeta and Lada who had arrived at the spot had seen accused Rajpal running away from the spot. 12. We need not notice statement of remaining witnesses as nothing substantial rest upon their testimony. 13. The trial Judge has not relied upon the testimony of Lada (PW.10) and Geeta (PW.11). The trial Judge in the judgment returned the following finding:- 35- bl izdkj mDr nksuksa gh p'enhn lk{kh ykMk o xhrk us fofufnZ"V :i ls vkjksfir ?kVukLFky ij e`rd nqxkZyky ds flj ij pksV vfHk;qDr jktiky }kjk dkfjr djus ds laca/k esa jaxyky }kjk vkokt nsdj crk;s tkus rFkk blds mijkar rqjUr gh ekSds ij igqapus rFkk vfHk;qDr jktiky dks ekSds ls Hkkxrs gq, ns[kus o e`rd nqxkZyky dh yk'k eqag ds cy fxjh gqbZ ns[kk tkuk izdV fd;k gSA ijUrq viuh ftjg esa mDr nksuksa xokgku ds mDr dFku lqLFkkfir fof/k ds n`f"Vxr vkjksfir ?kVuk ns[ks tkus ds laca/k esa fo'oluh; ugha jg tkrs gSA 36- ihŒMŒ 10 ykMk us viuh ftjg esa fuEukafdr dFku izdV fd;s gS%& ;g ckr lgh gS fd ?kVuk gqbZ rc eSa vius ?kj ij gh FkhA esjs dks ?kVuk ds ckjs esa gsejkt us crk;k FkkA eSaus >xM+k ns[kk ugha] uk gh eq>s dksbZ ?kVuk dh tkudkjh gSA eq>s rks >xM+s ds ckjs esa gsejkt us crk;k blh vk/kkj ij c;ku nsus vkbZ gwaA >xM+k gqvk ml le; va/ksjk FkkA jkf= dk le; Fkk] eSa vius ?kj ij gh Fkk ekSds ij ugha xbZ vkSj uk gh eSaus eqyfte dks ns[kkA 37- blh izdkj ihŒMŒ 11 xhrk nsoh us viuh ftjg esa fuEukafdr dFku izdV fd;s gS%& ;g lgh gS fd eSa oDr ?kVuk gekjs ?kj ij gh FkhA eSa ?kVuk gksus ds ckn ekSds ij igqaph Fkh] eSaus rks dsoy ekSds ij nqxkZyky dks iM+s gq;s ns[kk FkkA eqyfte dks ekSds ij ugha ns[kkA fQj ekSds ij vU; yksx vk x;s Fks vkSj eSa vius ?kj vk x;h FkhA 38- bl izdkj ihŒMŒ 10 ykMk us viuh ftjg esa ?kVukLFky ij tkus ls bUdkj fd;k gS tcfd xhrk nsoh ds lEiw.kZ dFkuksa ls ;g fu"d"kZ fudyrk gS fd og tc ekSds ij x;h rc eqyfte dks mlus ugha ns[kk Fkk ogka ij dsoy nqxkZyky dks iM+s gq, ns[kk Fkk rFkk vU; yksx vk x;s FksA 39- bl izdkj ihŒMŒ 11 xhrk nsoh }kjk izdV dh x;h mDr lk{;] izdj.k esa vU; izLrqr gqbZ lk{; ij fuHkZj gks tkrh gSA 14. The trial Judge further observed that from cross-examination of Hemraj (PW.12) it is apparent that when he reached at the spot, accused had already left the scene of occurrence. We reproduce the following finding from the impugned judgment:- ^^41- mDr gsejkt us U;k;ky; ds le{k viuh ftjg esa fuEu dFku izdV fd;s gS%& ;g ckr lgh gS fd ?kVuk ds le; va/ksjk FkkA ;g ckr lgh gS fd ?kVuk LFky ij ykbZV dh O;oLFkk ugha FkhA ;g lgh gS fd eq>s ?kVuk ds ckjs esa ykMk o xhrk us crk;k FkkA ykMk o xhrk eq>s jkLrs esa feyh FkhA eq>s ykMk o xhrk us ?kVuk ds ckjs esa crk;k Fkk rks eSa ?kVukLFky dh rjQ x;kA ?kVukLFky ij buls igys dksbZ ugha igqapk FkkA ykMk o xhrk us eq>s ?kVuk ds ckjs esa crkus ds ckn eSa ekSds ij x;kA eSa ekSds ij igqapk rc vfHk;qDr ogka ls jokuk gks pqdk FkkA ;g lgh gS fd eSa ykMk o xhrk ?kVukLFky ij igqaps rks geus ogka ij dsoy e`rd dh yk'k iM+h ns[kh FkhA ikap&nl feuV ckn gh xkao ds dkQh yksx ekSds ij vk x;s FksA 42- bl izdkj xokg gsejkt }kjk tks mDr U;k;ky; ds le{k 'kiFkiwoZd dFku izdV fd;s gS mu ij vR;Ur xgurk ls euu djus ij ;g izdV gksrk gS fd vius eq[; ijh{k.k esa rks bl lk{kh us vkjksfir ?kVuk vFkkZr vfHk;qDr jktiky }kjk e`rd nqxkZyky ds flj ij iRFkj ls pksV ekjrs gq, fofufnZ"V :i ls ns[kus dh ckr dgh gS] vFkkZr viuh vka[k ls ns[kus dh ckr dgh gS ijUrq ftjg esa tks rF; izdV fd;s gS muesa ;g izdV fd;k gS fd tc og ekSds ij igqapk rc vfHk;qDr ogka ls jokuk gks pqdk Fkk rFkk dsoy e`rd dh yk'k dks iM+h gqbZ ns[kk FkkA 43- tSlk fd iwoZ esa mYysf[kr fd;k tk pqdk gS fd p'enhn lk{kh ds :i esa ihŒMŒ 11 xhrk nsoh us vius dFkuksa esa ?kVuk ds rqjUr i'pkr~ ekSds ij igqapus rFkk e`rd nqxkZyky dh yk'k ns[kuk izdV fd;k gS rFkk ftl izdkj ls ?kVuk ds rqjUr i'pkr~ ifjoknh ihŒMŒ 6 ckcwyky us vfHk;qDr jktiky dks mDr ?kVuk esa vkjksih ds :i esa uketn fd;k gS ml fo'ks"k ifjfLFkfr;ksa esa esjs fouez er esa fo}ku vf/koDrk vfHk;qDr dh vksj ls tks lq>ko egRoiw.kZ lk{kh ihŒMŒ 12 gsejkt dks fn;k x;k gS og bl ?kVuk ds laca/k esa vR;Ur egRoiw.kZ gks tkrk gSA** 15. Having held that the witnesses reached at the spot later, the trial Judge in Para-45 of the impugned judgment held that the defence counsel has given a suggestion that the deceased due to altercation was given a push by the accused and thereafter he fell on the ground and had died. 16. Having perused the statement of the witnesses, we concur with the finding returned by the trial Judge that the witnesses Lada (PW.10), Geeta (PW.11) and Hemraj (PW.12) had reached at the spot soon after the occurrence was over and accused was not seen by them at the spot. 17. We have heard learned counsel for the appellant and learned public prosecutor. 18. It is an admitted fact that the occurrence had taken place in the Bada of Prabhu Ram Meena. Prabhu Ram Meena has not been examined. Even though the trial Judge has not relied upon the testimony of Lada (PW.10), Geeta Devi (PW.11) and Hemraj (PW.12), the impugned judgment is totally silent regarding the testimony of Ranglal (PW.5). Ranglal (PW.5) in court has specifically stated that after hearing the noise he came out of Bada of Prabhu Ram Meena and saw that the accused Rajpal was having a stone in his hand and was causing injury on the head of Durga Lal deceased. We reproduce the following portion from the testimony of Ranglal (PW.5):- ^^eSa edku ls fudydj izHkw eh.kk ds ckMs esa igqapk vkSj ns[kk fd gkftj vnkyr eqyŒ jktiky gkFkksa esa iRFkj fy, gq, uhps fxjs gq, nqxkZyky ds flj ij iRFkjksa ls ekj jgk FkkA mlds xys esa rksfy;k fyiVk gqvk Fkk eq>s ns[kdj jktiky eh.kk ogka ls Hkkxus yxk rks gsejkt Hkh ogka vk;k Hkkxrs gq, vkneh dks VkWpZ ds mtkys ls ns[kk rks oks gkftj vnkyr eqyŒ jktiky FkkA** 19. The trial Judge to convict the appellant relied upon a suggestion given by the defence counsel and also upon the fact that there was blood on the clothes of the accused which tallied with the blood on the apron worn by the deceased. The trial court further came to the conclusion that the accused soon after the occurrence got the stone recovered with which injury was caused to the deceased. We cannot become oblivious of the fact that the deceased had gone to play band in Village Kala Khet. The trial court further came to the conclusion that the accused soon after the occurrence got the stone recovered with which injury was caused to the deceased. We cannot become oblivious of the fact that the deceased had gone to play band in Village Kala Khet. Prosecution has not brought on record anything to suggest that there was previous enmity between the accused and the deceased. The trial court has not accepted the suggestion of the defence that the deceased was under the influence of liquor. A perusal of post- mortem report (Ex.P.15) reveal that there was only one injury on the head of the deceased. 20. Dr. P.C. Tunmariya (PW.16) in the post-mortem report (Ex.P.15) had noted that there was one lacerated wound 4"x3" bone deep at right mastoid region of scalp. Deceased had suffered only one injury in the occurrence. As per Medical Board, the primary cause of death was head injury. 21. We have perused the report (Ex.P.27) submitted by State Forensic Science Laboratory whereby viscera of the deceased was sent for examination. As per report of viscera, no poison has been found. Thus, it is conclusively proved that the accused had caused only one injury. The prosecution has failed to prove any inimical relation between the accused and the deceased. Ranglal (PW.5) had reached at the spot immediately after the occurrence. Thus, this witness is not aware regarding the motive on the part of the appellant or qua the origin of the occurrence. Therefore, we cannot rule out that the occurrence took place all of a sudden without any premeditation on the part of the appellant. We cannot rule out that the occurrence was spontaneous and may have occurred due to some exchange of hot words between the accused and the deceased. 22. Considering that the accused was not armed with any weapon and he caused only one injury on the person of deceased with a stone, we are of the view that the offence will fall under Section 304 Pt.II IPC and not under Section 302 IPC. For us, it is a significant factor that there was no previous enmity between the accused and the deceased. Thus, we can safely say that the accused was not having intention but the knowledge that the injury would cause death of the deceased. Consequently, we convert the offence from Section 302 IPC to Section 304 Pt.II IPC. For us, it is a significant factor that there was no previous enmity between the accused and the deceased. Thus, we can safely say that the accused was not having intention but the knowledge that the injury would cause death of the deceased. Consequently, we convert the offence from Section 302 IPC to Section 304 Pt.II IPC. Having converted the offence from Section 302 IPC to Section 304 Pt.II IPC, we set aside the sentence of life imprisonment awarded by the trial court upon the accused-appellant and considering the antecedents of the accused-appellant, we award sentence of five years rigorous imprisonment upon the appellant. Since the appellant has filed appeal through Jail and Amicus Curiae has been appointed by the State Legal Services Authority, we are of the view that sentence of fine is not called for. With the above modification in conviction and sentence, present appeal stands disposed of.