JUDGMENT Goverdhan Bardhar, J. - This criminal appeal under section 374 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC') has been filed by the accused appellant assailing judgment and order dated 21.05.2005 passed by the Court of learned Special Judge, Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Cases, Jaipur (Rajasthan) in Sessions Case No.63/2003, whereby learned trial court convicted and sentenced the accused-appellant for the offence under section 302 IPC to undergo Life Imprisonment with fine of Rs. 1000/-; in default, to further undergo six months simple imprisonment. 2. Briefly stated facts of the case are that on 13.05.2003 complainant Shrawan Kumar Bunkar s/o Late Shri Ram Swaroop, by caste Balai, resident of Village Nangal, Bharda, District Jaipur (Raj.) submitted a written report to the Incharge of Police Station Samod to the effect that today in the evening at about 6:00 P.M., his neighbour Tarachand s/o Babulal Bunkar who is of the same caste and residents of same Mohalla, was digging soil from the 'Tilla' situated in front of new building (Naveen Bhawan) of Government Secondary School. At that time, one unknown person came there. He took 'Fawda' from the hands of Tarachand and started to gave blow on the head from 'Fawda'. On this Sita Devi, sister of Tarachand, who was standing near him (Tarachand) raised hue and cry. After hearing the hue and cry, the people who were passing by and the villagers gathered there and caught hold of that person but Tarachand died on the spot due to injury received from 'Fawda'. After hearing about the incident, he (Shrawan Kumar Bunkar) reached on the spot. Thus, report be registered. 3. On the basis of aforesaid written report (Ex.P3), an F.I.R. No.99/2003 (Ex.P4) was registered at Police Station Samod, District Jaipur (Rural) for the offence under Section 302 IPC. Investigation commenced. The police arrested the accused-appellant and after investigation submitted challan against him for the offence under section 302 IPC. The learned trial court framed charges for the said offence. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined 21 witnesses and also exhibited 14 documents. The defence, in support of its case, did not produce any evidence but exhibited seven documents. 4. Learned trial court, after hearing both the parties, vide impugned judgment and order convicted and sentenced the accused-appellant in the manner indicated above. The prosecution, in support of its case, examined 21 witnesses and also exhibited 14 documents. The defence, in support of its case, did not produce any evidence but exhibited seven documents. 4. Learned trial court, after hearing both the parties, vide impugned judgment and order convicted and sentenced the accused-appellant in the manner indicated above. Hence, this appeal. 5. Learned counsel for the accused appellant argued that the learned trial court has failed to appreciate the facts and circumstances of the case and evidence available on record as testimony of witnesses is self contradictory, unreliable and untrustworthy but the learned trial court only on surmises and conjectures convicted the appellant. The learned trial court has failed to appreciate the fact that the above incident was taken place on 13.05.2003 at 6:00 P.M. and FIR was registered with unnecessary delay at 11:00 P.M. The prosecution has failed to explain the delay. Thus, the case of the prosecution becomes suspicious. Virendra Singh (PW21), Investigating Officer, in his testimony deposed that on 13.05.2003 at 8:00 P.M. the accused was brought from the hospital for the medical examination and further treatment but he was incapable to tell his name and accused also could not understand the questions which were put to him. Hence, it is clearly proved that the accused is of unsound mind and when accused appellant committed such an act, he was incapable of knowing the nature of the act. Seeta Devi (PW8) deposed that she did not see any person who hit the deceased. Thus, there is no eye witness of the occurrence. The learned trial court has failed to appreciate the fact that no blood was found on the 'Fawda'. Learned counsel argued that the motive of murder is not well found from the facts despite that the learned trial court arbitrarily convicted the appellant under section 302 IPC. It is not the case of the prosecution that anyone saw the occurrence or deceased made any statement to any witness. In the alternate learned counsel argued that out of total sentence awarded to the accused appellant, he has already served the sentence of more than 15 years. Thus, the accused appellant may be released for the period already undergone by him in confinement. 6. Learned Public Prosecutor opposed the appeal and supported the impugned judgment and referred to testimony of all the witnesses. Thus, the accused appellant may be released for the period already undergone by him in confinement. 6. Learned Public Prosecutor opposed the appeal and supported the impugned judgment and referred to testimony of all the witnesses. He argued that the judgment passed by the learned trial court is perfectly justified and does not call for any interference. 7. We have given our anxious consideration to the rival submissions of learned counsel for the accused-appellant as well as the learned Public Prosecutor has also minutely scanned the material on record. 8. Before proceeding further, we think it just and proper to mention the ante-mortem injuries on the dead body of the deceased, Tarachand recorded by Dr. Surendra Kumar Saini (PW19). 9. Postmortem report of deceased Tarachand is Ex.P09. The autopsy on the dead body of the deceased was conducted on 14.05.2003 by Dr. Surendra Kumar Saini (PW19). During the course of autopsy following injuries were found on the person of the deceased:- "1. Lacerated wound of scalp size 15cm x 7cm x deep into brain tissues through and through associated with the depressed multiple fractures of the left parietal bones, occipital bones and frontal bones through and through and deep into brain tissues. Margin of wounds are irregular and not cleanly cut and ante-mortem in nature. 2. Lacerated wound size 2cm x 0.2cm x through and through and 3.5 cm. away and below from right angle of mouth and margin are irregular and not cleanly cut and ante-mortem in nature. No loosening of teeth and no corresponding tooth injury seen. 3. Wound over right external pinna in middle part through and through injury seen size 3cm x 0.2cm x through and through and wound margenfare regular and cleanly cut and antemortem in nature. 4. Wound over right mortoid process size 201cm x 0.2cm x deep into bone and are regular and cleanly cut and ante-mortem in nature. 5. Bruise associated with multiple abrasion over the bruised area. Size of bruise are 102cm x 0.4 cm. and abrasion size from pinna size to 0.2cm x 0.1 cm. and both bruise and abrasions are postmortem in nature situated over arm upper one-third region parietal aspect ." All above injuries are ante mortem in nature. 5. Bruise associated with multiple abrasion over the bruised area. Size of bruise are 102cm x 0.4 cm. and abrasion size from pinna size to 0.2cm x 0.1 cm. and both bruise and abrasions are postmortem in nature situated over arm upper one-third region parietal aspect ." All above injuries are ante mortem in nature. The opinion given as to the cause of death of Tarachand is reproduced as under:- "(1) In my opinion injury No.1,2,3,4 mentioned in page No.5 and all injuries mentioned on page No.1 are ante mortem in nature. (2) In my opinion the cause of death are ante mortem injury of brain (vital organ) and accumulative effect of hemorrhagic shock which is sufficient to cause death in ordinary course of nature. (3) Duration of death are within 12 hours to 24 hours prior to P.M. examination. 10. Dr. Surendra Kumar Soni (PW19) deposed that on on 14.05.2003 he was posted as Medical Officer, Primary Health Center, Samod. He found five injuries on the person of deceased Tarachand which were ante mortem in nature. This witness deposed that the injuries were sufficient to cause death of Tarachand in the ordinary course of nature. 11. Now we have to examine as to whether the appellant committed murder by causing the ante-mortem injuries suffered by the deceased or not. 12. As per the case of the prosecution, the eye witness of the incident is Sita Devi (PW8) who is sister of deceased Tarachand. She has deposed about the role of the appellant in commission of the crime. 13. Sita Devi w/o Sohanlal (PW8), who is sister of deceased Tarachand, as per the case of the prosecution is an eye-witness of the occurrence in examination-in-chief deposed that approx. one year ago at about 5:30-6:00 P.M. she along-with her brothers Ajay, Vijay and Tarachand was digging soil near the school. Thereafter, one boy came there. He snatched 'Fawda' from Tarachand and gave a severe blow on his head due to which he (Tarachand) died on the spot. Thereafter, they raised hue and cry. Upon which Kamal, Sohanlal, Shrawan and other persons came there. When that boy tried to run away from the place of occurrence, they caught hold of him. This witness (PW8), after seeing the accused in the Court, identified him. Thereafter, they raised hue and cry. Upon which Kamal, Sohanlal, Shrawan and other persons came there. When that boy tried to run away from the place of occurrence, they caught hold of him. This witness (PW8), after seeing the accused in the Court, identified him. Tarachand was digging soil, she found him injured near 'Gatta of Peepal' and blood was oozing out from his head. Blood was also spread on the ground. This witness further deposed that when she reached, 'Fawda' was not there. Prior to her reaching at the place of occurrence, no member of her family was present there. Police took soil and 'Fawda' in front of her. One boy of her village gave information to the police, name of whom she does not remember. 14. Complainant Shrawan Kumar (PW5) deposed that on 13.05.2003 at about 6:00 P.M. he was sitting in his shop. He heard the noise of hue and cry. He after hearing the noise of hue and cry went towards school. There he saw that one unknown person gave a blow of 'Fawda' on the head of Tarachand s/o Babulal and he (Tarachand) died on the spot. At that time Sohan, Maliram, Madan, Sita d/o Babulal, Ajay brother of Tarachand, Vijay were raising hue and cry on the spot. When the person who assaulted Tarachand with 'Fawda' tried to ran away, they caught hold of him. On asking his name, he told his name as "Shiva". This witness in crossexamination deposed that when he reached on the spot, blood was spread there and in his presence, Sohan, Maliram and Madan did not clean the blood. The police took the sample of the blood stained soil in his presence. 15. Vijay Kumar (PW09), who stated to be himself as an eye witness of the occurrence deposed that one year ago at about 5:30 P.M. he, Ajay, Tarachand and Sita were digging soil in front of the school. The accused who is present in the Court snatched 'Fawda' from Tarachand and gave a blow on his head due to which he died on the spot. When they raised hue and cry, Sohan Lal, Shrawan, Maliram and other persons came on the spot. Kamal caught hold of the accused who is present in Court. On asking his name, he stated his name as "Shiva". When they raised hue and cry, Sohan Lal, Shrawan, Maliram and other persons came on the spot. Kamal caught hold of the accused who is present in Court. On asking his name, he stated his name as "Shiva". This witness in cross-examination deposed that when we reached on the spot, Tarachand was lying there in an injured condition and blood was oozing out from his head. 'Fawda' was lying near the school. Prior to his reaching at the place of occurrence, many persons were already present there. The police came on the spot after approx. five minutes. 16. Kamal Kishore (PW10) deposed that one year ago at about 5-6 P.M. he was returning from his village to his home on a tractor. When he reached near the school, he saw the accused who is present in the Court, snatching 'Fawda' from Tarachand and gave a blow on his head from 'Fawda'. At the place of occurrence, the younger brothers of deceased namely; Ajay, Vijay and Sita were present. As accused gave a blow with 'Fawda' on the head of Tarachand and he caught hold of the accused on the spot. Afterwards, Sohanlal, Babulal, Girdhari, Shrawan etc. of the village came and gathered there. This witness in cross-examination deposed that he did not give information personally to the parents of the deceased but he was raising hue and cry loudly that Tarachand has been murdered. There was blood on the cloth of the accused. The police did not took him to the police station for identification of the accused. 17. Sohan Lal (PW11) deposed that on 13.05.2003 (Tuesday) in the evening at about 6:00 P.M. he was at his house. His sons Ajay, Vijay and his brother's son Tarachand and Sita went to dig the soil. He heard the hue and cry of the children. He went at the place of occurrence and found Tarachand lying on the ground and blood was oozing out from his head. Kamlesh caught hold of the accused. The villagers gathered there. When the villagers asked the boy who assaulted on the head of Tarachand, he stated his name as "Shiva". Tarachand died on the spot. He can identify the accused who committed murder of Tarchand if he comes in front of him. This witness in cross-examination deposed that Tarachand was his nephew. The villagers gathered there. When the villagers asked the boy who assaulted on the head of Tarachand, he stated his name as "Shiva". Tarachand died on the spot. He can identify the accused who committed murder of Tarchand if he comes in front of him. This witness in cross-examination deposed that Tarachand was his nephew. He admitted that when he reached at the place of occurrence, Tarachand was lying on the road outside the gate of school and blood was oozing out from his body. Where Tarachand was lying, 'Fawda' was lying just adjacent to him (Tarachand). Before he reached at the place of occurrence, Kamal Kishore, Ajay, Vijay and Sita were present. 18. Ram Chandra (PW12) is a witness of recovery of 'Fawda'. The seizure memo is Ex.P5. At the time of preparing Ex.P5, Ex.P6 and Ex.P6, Shrawan Lal and Babu Lal were present. 19. Babulal (PW15) father of deceased, who at the time of alleged incident was posted in U.B.I. Bank deposed that on 13.05.2003 his son Tarachand went to dig the soil where he was murdered. In the evening, at about 6:30 P.M. when he returned from the Bank to home, his brothers Sohanlal, Naresh Kumar, Madanlal, Shrawan Kumar, Ram Chandra told that his brother went with Ajay Kumar, Vijay Kumar, Sita Devi in front of the Government Secondary School to bring the soil. One person gave a 'Fawda' blow on the head of his son due to which he (his son) died. 20. Maliram (PW16) deposed that around one and a half year ago at about 5-5:30 P.M. he was at his home. On hearing the hue and cry, he ran towards the school. He saw that one man was giving blow with 'Fawda'. Before he reached there, Sohan Lal and Kamlesh were already there. Sohan Lal and Kamlesh caught hold of that person who committed the murder of Tarachand and 'Fawda' was snatched from that person. Due to blood oozing out from the head of Tarachand, he died. 21. Ajay Kumar (PW17) deposed that Tarachand is son of his maternal uncle. On 13.05.2003 at about 5:00 P.M. he , Tarachand, Vijay and Sita were digging the soil. One unknown person came there and gave a 'Fawda' blow on the head of Tarachand, due to the blow he died. 22. Virendra Singh (PW21) deposed that on 13.05.2003 he was posted as SHO, Police Station Samod. On 13.05.2003 at about 5:00 P.M. he , Tarachand, Vijay and Sita were digging the soil. One unknown person came there and gave a 'Fawda' blow on the head of Tarachand, due to the blow he died. 22. Virendra Singh (PW21) deposed that on 13.05.2003 he was posted as SHO, Police Station Samod. On that day, near about 6:30 P.M., an information was received through telephone that in Village Nangal-Barda one child has been murdered by some unknown person. Upon this, he reached with police personnel on the place of the occurrence. This witness deposed that he, after investigation submitted challan against the accused appellant. 23. On the basis of analysis of the evidence of prosecution witnesses made above, it is found cogent, credible and truthful. No reason appears that prosecution witnesses would rope an innocent person, particularly when the ocular evidence is corroborated by the medical evidence. 24. In the present case, the incident took place without any premeditation in a sudden fight at the spur of the moment, which the accused-appellant Bapu Rahua @ Shiva cannot be said to have taken any undue advantage or acted in a cruel or unusual manner. Minor discrepancies in the statements of prosecution witnesses as to from which side of 'Fawda' injury was caused on the head of by the deceased, would not make any difference in view of the fact that their statements are consistent and in conformity with the story initially set up by the informant in the written report (Ex.P3). The head injury has been attributed to none other than accused appellant Bapu Rahua @ Shiva, therefore, his offence would not be culpable homicide amounting to murder but the same would be culpable homicide not amounting to murder with both intention and knowledge of the fact that injury that he caused was likely to result in death of Tarachand. Therefore, offence of the accused-appellant would be punishable under Section 304 PartI, IPC and not under Section 302 IpC. 25. In the result, we partly accept the appeal and alter conviction of accused-appellant Bapu Rahua @ Shiva S/o Shri Aamukh Rahua for offence under Section 302 of the Indian Penal Code to one under Section 304 Part I of the IPC. The accused-appellant has already undergone sentence of more than fifteen years. 25. In the result, we partly accept the appeal and alter conviction of accused-appellant Bapu Rahua @ Shiva S/o Shri Aamukh Rahua for offence under Section 302 of the Indian Penal Code to one under Section 304 Part I of the IPC. The accused-appellant has already undergone sentence of more than fifteen years. Having held that, accused-appellant Bapu Rahua @ Shiva is guilty of offence under Section 304 Part I of the I.P.C., we award him sentence to the period already undergone by him with fine of Rs. 1000/-. In default of payment of fine, he has to undergo simple imprisonment for one month. The appellant is in jail. He be set at liberty forthwith if not needed in any other case. The judgment impugned in the appeal is modified in the above terms. The appeal is accordingly allowed in part. 26. Keeping, however, in view the provisions of Section 437- A of the Code of Criminal Procedure, appellant Bapu Rahua @ Shiva S/o Shri Aamukh Rahua is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-, and a surety bond in the like amount before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.