JUDGMENT Mohammad Rafiq, J. - This jail appeal on behalf of accused-appellant Yogendra Singh @ Jogendra Singh challenges the judgment dated 25.08.2015 of the court of learned Additional Sessions Judge, Bandikui, District Dausa, in Sessions Case No.19/2012, whereby the trial court has convicted the accused-appellant for offence under Section 302 of the Indian Penal Code (for short, 'the IPC') and sentenced him to undergo life imprisonment with fine of Rs.10,000/- (Rupees ten thousand only). In default of payment of fine, he was ordered to further undergo six months simple imprisonment. 2. Briefly stated the facts of the case are that complainant Kailash gave a written report on 31.01.2012 at Police Station Baswa stating therein that his elder brother Ramaotar @ Punya Gurjar, was doing the labour work at Jaipur for last about two months. While the information was going to Baswa on that date at 08:00 AM in the morning for the labour work, the informant found his dead on the way at a distance of 200 meter from their hamlet. There was an injury on the temple of his right side caused by sharp edged weapon. There were also injuries on his face, nose and teeth. He was found lying in the pool of blood. It was stated that some unknown person has killed his brother Ramaotar. On that basis, the police registered F.I.R. No.25/2012 for offence under Section 302 I.P.C. and commenced investigation. The accused-appellant was arrested during investigation. Charge-sheet was filed against him for offence under Section 302 I.P.C. in the court concerned, which took cognizance against the accused- appellant and case was registered. Since the case was exclusively triable by the court of Sessions, the learned Additional Chief Judicial Magistrate, Bandikui, committed the same to the court of Additional Sessions Judge, Bandikui, District Dausa. The charge of offence under Section 302 IPC was framed against the accused- appellant. He denied the charge and claimed trial. The prosecution examined as many as twenty witnesses and exhibited thirty-one documents from Exhibit P-1 to Exhibit P-31. The accused- appellant was examined under Section 313 of the Code of Criminal Procedure and claimed himself to be innocent. He did not produce any evidence in defence. 3. After conclusion of the trial, learned trial court convicted and sentenced the accused-appellant in the manner indicated above. Hence this appeal. 4. Mr. The accused- appellant was examined under Section 313 of the Code of Criminal Procedure and claimed himself to be innocent. He did not produce any evidence in defence. 3. After conclusion of the trial, learned trial court convicted and sentenced the accused-appellant in the manner indicated above. Hence this appeal. 4. Mr. Dheeraj Singhal, learned counsel for the accused- appellant, argued that there is no eye-witness to the alleged incident. Neither the complainant himself nor any other person witnessed the incident. This is a case of circumstantial evidence and the circumstantial evidence, which the prosecution has produced on record, is not sufficient to prove the guilt of the accused-appellant beyond reasonable doubt. Even the chain of the circumstances is not so complete so as to connect the accused- appellant with the crime. Jagdish Prasad (PW-11), who is said to have last seen the accused with the deceased, in his statement has stated that both of them were in drunken state, whereas the F.S.L. report does not disclose that the deceased had consumed liquor. The prosecution did not even get the memos identified by the witnesses. The Investigating Officer himself has stated that there was no enmity between the families of the accused and the deceased. It is therefore argued that the prosecution has failed to prove that there was any motive for the accused to kill the deceased. 5. Mr. Dheeraj Singhal, learned counsel, also argued that the evidence on record has proved that the accused and the deceased were friends and that during night they used to stay together at Gandhi Nagar Railway Station. They used to work as labour at different sites of Rajendra. It was the month of February. Deceased had stolen the blanket of the accused but the accused was unaware of this fact till he discovered his blanket in possession of the deceased at Baswa. He then became furious and then suddenly a fight took place in which the accused did not use any arm or deadly weapon and is rather alleged to have caused injuries of stone to the deceased. 6. Ms. Meenakshi Pareek, learned Public Prosecutor, supported the impugned judgment and submitted that the learned trial court on the basis of evidence and other material available on record has rightly convicted and sentenced the accused-appellant and therefore the impugned judgment is not liable to be interfered with. 7. 6. Ms. Meenakshi Pareek, learned Public Prosecutor, supported the impugned judgment and submitted that the learned trial court on the basis of evidence and other material available on record has rightly convicted and sentenced the accused-appellant and therefore the impugned judgment is not liable to be interfered with. 7. Having heard learned counsel for the accused-appellant and learned Public Prosecutor, we have gone through the impugned judgment. 8. There are in this case though no eye-witnesses but Rajendra Singh (PW-1) and Jagdish Prasad (PW-11) are the witnesses of last seen. Learned trial court has convicted the accused-appellant on the basis of evidence of last seen, the extra-judicial confession and blood stains found on the T-shirt of the accused-appellant. 9. First of all coming to the evidence of last seen, it may be noted that Rajendra Singh (PW-1) has stated that he, apart from doing the work of catering, was labour contractor and that the appellant and the deceased had worked for him for 15-20 days prior to the date of incident. They used to live together during night at Gandhi Nagar Railway Station and both were addict to liquor. Ramaotar came to him on 30.10.2012 and took a sum of Rs.400/- and that time accused-appellant was also with him. Ramaotar told him that both were going to Ramotar's native place (Kanchanmal-ki-dhani) and would return back after 4-5 days. On the next day, he heard news about the murder of Ramaotar. Since Ramaotar had his (PW-1's) the number in his (deceased's) diary, the police contacted him (PW-1) on phone. Jagdish Prasad (PW- 11) has stated that he had a shop near Rampura gate at Baswa. Ramaotar Gurjar came to him in the evening around 07:15 AM on 30.01.2012. There was one more person with him. They purchased 'bidi', tea, sugar etc. from his shop. Ramaotar was carrying a gunny bag on his head. He was wearing black pants. This witness has identified accused-appellant Yogendra Singh @ Jogendra Singh in the court as the one who was accompanying the deceased on 30.01.2012. He has stated that both were heavily drunken. On the following morning around 08:00 AM, he heard that Ramaotar has been murdered. In cross-examination, this witness stated that the accused was carrying a gunny bag on his head. At that time he was wearing pants of black colour. 10. He has stated that both were heavily drunken. On the following morning around 08:00 AM, he heard that Ramaotar has been murdered. In cross-examination, this witness stated that the accused was carrying a gunny bag on his head. At that time he was wearing pants of black colour. 10. The testimony of these witnesses clearly proves that the accused accompanied the deceased when he last left Jaipur for his (deceased) native, and that he reached Baswa, which is close to the native of the deceased in the late evening of 30.01.2012. They took certain items from the shop of Jagdish Prasad (PW-11) and then on the following day the dead body of Ramaotar was found. Even though what was stated by Rajendra Singh (PW-1) and Jagdish Prasad (PW-11) was specifically put to the accused in his examination under Section 313 of the Cr.P.C., he however has failed to offer any explanation as to how and in what circumstances he parted company with the deceased. The accused was arrested on 10.02.2012 vide arrest-memo Exhibit P-9. He was at that time wearing black pants. Two spots of the blood were found on the T-shirt. The stains of blood were noticed on his clothes, therefore, both pants and T-shirt were seized vide memo Exhibit P-10. As per the report of the Forensic Science Laboratory (for short, 'the FSL') human blood was found on the T-shirt of the accused. Even this circumstance was put to him. He failed to give any explanation as to how the blood came on his T-shirt, but he failed to give any explanation. In the arrest-memo (Exhibit P-9) it has been specifically mentioned by the Investigating Officer that there was no injury mark on the body of the accused and therefore it cannot be said that it was his own blood. 11. Here the testimony of Mahesh (PW-7) becomes important. He has stated that he used to work with Rajendra (PW-1). He also used to stay at Gandhi Nagar Railway Station. Ramaotar and Yogendra Singh also used to stay there. Ramaotar was resident of Baswa. Ramaotar had taken a sum of Rs.400/- from Rajendra on 30.01.2012 on the pretext of going to his native. Yogendra Singh @ Jogendra Singh and Ramaotar both went together to the native of Ramotar on 30.01.2012. On 31.01.2012 Yogendra Singh @ Jogendra Singh returned back to Jaipur and met him in the evening. Ramaotar was resident of Baswa. Ramaotar had taken a sum of Rs.400/- from Rajendra on 30.01.2012 on the pretext of going to his native. Yogendra Singh @ Jogendra Singh and Ramaotar both went together to the native of Ramotar on 30.01.2012. On 31.01.2012 Yogendra Singh @ Jogendra Singh returned back to Jaipur and met him in the evening. Yogendra Singh @ Jogendra Singh alone returned back and Ramaotar was not with him. Yogendra Singh @ Jogendra Singh told him that Ramaotar had taken his money and blanket and therefore he caused injuries to him by stones and then he left him there and returned back. Jogendra Singh @ Yogendra Singh at that time was wearing black pants and green T-shirt. His clothes had blood stains but he washed the clothes. Hajari Lal (PW-6) has stated that Ramaotar was resident of his native. Harkesh (PW-8) has stated that Mahesh is his younger brother. He has stated that Mahesh left the house after a quarrel with the family members. This witness also stated that he also came to Gandhi Nagar in the month of February in search of Mahesh. At Gandhi Nagar Railway Station he met with three policemen, Rajendra contractor and guard of shelter home. This witness showed the photo of Mahesh to the guard of shelter home, who told that Mahesh slept in the night in the shelter home and thereafter left the place. Then Rajendra told this witness that Mahesh has left for Gujarat with a contractor for work. This witness then left for Gandhidham with policeman in search of his brother, where he found working his brother, Yogendra and 2-3 other persons. His brother Mahesh told him that deceased Ramaotar and Yogendra used to consume liquor and that Yogendra and Ramaotar quarrelled with each other at his native place on the dispute over blanket as Ramaotar had stolen the blanket of Yogendra. Yogendra hit Ramaotar with stone and then came back to Jaipur. 12. Investigating Officer Rakesh Kumar (PW-20), in crossexamination, has admitted that during his investigation it was revealed that both quarrelled with each other on the dispute of blanket and that one blanket was found in a gunny bag near the dead body and a sum of Rs.600/- was also found in his pocket. Another blanket was not found there. 12. Investigating Officer Rakesh Kumar (PW-20), in crossexamination, has admitted that during his investigation it was revealed that both quarrelled with each other on the dispute of blanket and that one blanket was found in a gunny bag near the dead body and a sum of Rs.600/- was also found in his pocket. Another blanket was not found there. He also admitted that in the investigation it was not found that the accused and the deceased had any family dispute or previous enmity. The murder was committed on the dispute of blanket and cash. Both were habitual drunkard. The blood smeared stone with which the deceased was hit was recovered by the police vide Exhibit P-15 from the place of incident itself. 13. The guilt of the accused thus stands fully proved by the evidence of last seen as also the extra judicial confession, however, the evidence has also come on record that the accused indulged in a sudden fight with the deceased when the deceased found his missing blanket in possession of the deceased and that both were at that time heavily drunken. The incident has thus taken place at the spur of moment in the heat of passion in a sudden fight where the accused caused injuries to the deceased by stone. The stone was picked up from near the place of incident and therefore it cannot be said that it was a premeditated and that the accused was armed with any weapon, muchless deadly weapon. The accused and the deceased did not have any previous enmity. In the facts of the case therefore while the conviction of accused-appellant for offence under Section 302 IPC cannot be held justified. Although a case indeed is made out for convicting him for offence of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC. 14. In the result, the appeal is allowed in part. The conviction and sentence of the accused-appellant is set aside under Section 302 IPC and instead he is convicted for offence under Section 304 Part-II of the IPC and sentenced to rigorous imprisonment of seven years with fine of Rs.1000/- instead of Rs.10,000/-. In default of payment of fine, he has to further undergo fifteen days simple imprisonment. The impugned judgment and order is accordingly modified. 15. The appeal is accordingly disposed of.