JUDGMENT : VINIT KUMAR MATHUR, J. 1. The instant criminal jail appeal has been preferred by the accused-appellant Shivraj Singh through the Superintendent Central Jail, Udaipur by post against the judgment dated 27.01.2010, passed by learned Additional Sessions Judge (Fast Track), Rajsamand in Sessions Case No. 12/2009 by which the accused-appellant has been convicted for offences under Sections 323, 324 & 302 IPC and sentenced as under: Under Section 323 IPC: Six months' simple imprisonment. Under Section 324 IPC: One year's simple imprisonment. Under Section 302 IPC: Life imprisonment with a fine of Rs. 10,000/-, in default thereof to further undergo six months' rigorous imprisonment. 2. The appeal was registered and the same was admitted for hearing on 12.03.2010. The Amicus Curiae was appointed to argue on behalf of the appellant. 3. In nutshell the prosecution story is that on 17.02.2009 Chandra Prakash (PW-1) lodged a complaint in the Police Station Rajnagar stating therein that accused Shivraj Singh who is about 30 years of age and is the resident of village Megatia is a notorious person who threatens the villagers and creates fear in their mind. In the afternoon of 17.02.2009, the accused Shivraj Singh was roaming with a naked sword in his hand and at around 4.30 PM while he was studying in his house accused was quarreling with Smt. Mani Bai W/o Kalu Singh. On hearing the noise he ran out and saw that Shivraj Singh was running behind Devraj Singh. At that point of time, Mani Bai tried to counsel and pacify the accused but accused gave a sword blow on Mani Bai, causing injuries on the left side of her head, eye and cheek. The injuries being grievous, she fell on the ground and then her husband Kalu Singh ran towards her but he was also given a sword blow on his right shoulder. Devraj Singh tried to caught hold of the hands of Shivraj Singh but he was also given a sword blow. In the scuffle the sword got detached from its hilt (mooth/handle). Shivraj Singh only had the hilt of the sword in his hand and ran away from the place of incident. The entire incident was watched by him, Devraj Singh and Smt. Ram Kunwar W/o Dinesh Singh. He made a telephone call in the Police Station Rajnagar and informed about the incident. Thereafter the injured persons were taken to the R.K. Hospital. The entire incident was watched by him, Devraj Singh and Smt. Ram Kunwar W/o Dinesh Singh. He made a telephone call in the Police Station Rajnagar and informed about the incident. Thereafter the injured persons were taken to the R.K. Hospital. On the aforesaid complaint, an FIR was registered at 7.30 PM on the same day and the matter was investigated by the police. 4. It is relevant to note here that Smt. Mani Bai who got injured in the incident of 17.02.2009 died during her treatment in the hospital at Udaipur on 27.02.2009. 5. After the investigation police filed a charge-sheet for the offences under Sections 323, 324 and 302 IPC against the accused-appellant. 6. Learned Trial Court framed charges against the accused-appellant for the offences under Sections 323, 324 & 302 IPC for committing murder of Mani Bai and causing injuries to Kalu Singh and Devraj Singh and the same were read over and explained to him but he denied the same and sought for trial in the matter. 7. During the trial, the prosecution examined as many as 17 witnesses and 34 documents were exhibited. 8. The accused was examined under Section 313 Cr.P.C. and he was confronted with the evidence adduced during the course of trial to which he denied and stated that he is innocent. He further stated that he has been falsely implicated in the present case. 9. Learned trial Court after hearing the arguments from both the sides, taking into consideration the statement of witnesses and after going through the same, convicted and sentenced the accused-appellant vide judgment dated 27.01.2010. 10. For appreciating the facts in detail, we have gone through the statements recorded during the trial along with documents produced and exhibited before the trial Court. 11. PW-1 Chandra Prakash who is the lodger of the FIR and the eye-witness to the incident stated in his statement that on 17.2.2009 at around 4.30 pm while he was studying at his house, he heard some noise and on coming outside the house he saw accused Shivraj Singh quarreling in front of the house of the Kalu Singh. When Devraj Singh came out of the house, Shivraj Singh ran after him with sword in his hand. When Devraj Singh came out of the house, Shivraj Singh ran after him with sword in his hand. Mani Bai came from her house and was trying to counsel and pacify Shivraj Singh but the accused Shivraj Singh gave a sword blow causing injuries to her due to which she fell on the ground. Kalu Singh and Jaswant Singh tried to intervene and save Mani Bai. All the villagers were present there. Devraj Singh was also present there. Shivraj Singh gave a sword blow on the right shoulder of Kalu Singh. While Devraj Singh ran towards Shivraj Singh to take the sword from him, accused attacked him also but the sword got dislocated from the hilt and fell on the ground. Thereafter accused Shivraj Singh ran away from the spot with the hilt of the sword in his hand. The incident was watched by Kalu Singh, Devraj Singh, Ram Kunwar W/o Dinesh Singh. Injured Mani Bai and Kalu Singh were taken to R.K. Hospital from where Mani Bai was referred to hospital at Udaipur. The report which he made is Ex. P-1 bearing his signatures from A to B. The police on 18.02.09 inspected the spot and prepared site plan on which he affixed his signature. On the spot Madan Singh and Ghasi Ram were also present. Smt. Mani Bai expired in the hospital at Udaipur after 10 days of the incident. In the cross examination this witness has maintained what he stated in his examination in chief and nothing contrary to the same has come on record. 12. PW-2 Kalu Singh who is the injured as well as the eyewitness to the incident has stated on the same lines as has been stated by PW-1 Chandra Prakash and has deposed that while his wife came out of the house to counsel and pacify the accused Shivraj Singh, accused gave a sword blow to her due to which she fell on the ground and soon she was lying in a pool of blood. When he ran towards his wife, he was also hit by the sword resulting into the injury on the right shoulder. He along with his wife was taken to the hospital from where his wife was referred to hospital at Udaipur. He further stated that on 27.02.09 his wife expired in the hospital at Udaipur. 13. When he ran towards his wife, he was also hit by the sword resulting into the injury on the right shoulder. He along with his wife was taken to the hospital from where his wife was referred to hospital at Udaipur. He further stated that on 27.02.09 his wife expired in the hospital at Udaipur. 13. PW-3 Madan Singh has also stated on the same lines as the above witnesses and has appended his signatures on the memos prepared by the police i.e. Site Plan (Ex. P-3), seizure memo of blood stained sword without hilt (Ex. P-5), collection of control sample (Ex. P-6), seizure memo of hilt of the sword recovered at the instance of accused (Ex. P-7) etc. 14. PW-4 Devraj Singh has stated that on 17.02.2009 on hearing the noise of Shivraj Singh abusing, having a sword in his hand, he tried to pacify him but the accused ran before him and while deceased Mani Bai was trying to counsel and pacify the accused, he gave sword blow to her, due to which she fell on the ground and then accused gave a sword blow to Kalu Singh also on the right shoulder. Injured Mani Bai and Kalu Singh were taken to the Hospital. Since, Mani Bai was serious she was taken to Udaipur where he was died after 10-11 days. 15. PW-5 Kuldeep Singh has attested the recovery of blood stained clothes (Ex. P-10), inquest memo of the dead body (Ex. P-11) and handing over memo of the dead body (Ex. P-12). 16. PW-6 Smt. Ram Kunwar who is also an eye-witness to the incident has stated on the same lines as has been stated in the statements of PW-1 Chandra Prakash and PW-2 Kalu Singh. In her statement, she stated that while Mani Bai was trying to counsel and pacify the accused Shivraj Singh, he gave a sword blow, resultantly she fell on the ground and the blood was oozing out of her head and face. 17. PW-8 Gajendra Singh Charan, PW-9 Sanjeev Kumar, PW-10 Raja Ram Meena are the persons who collected the sample and took the same to Forensic Science Laboratory and deposited the same in furtherance of the investigation. 18. 17. PW-8 Gajendra Singh Charan, PW-9 Sanjeev Kumar, PW-10 Raja Ram Meena are the persons who collected the sample and took the same to Forensic Science Laboratory and deposited the same in furtherance of the investigation. 18. PW-11 Niranjan who is the SHO, P.S. Rajnagar stated in his statement that he recorded the statement of Sanjeev Kumar and Ram Kunwar and also prepared the different memos during the course of investigation. 19. PW-12 Anis Ahmed has stated that while working as Medical Jurist in the M.B.G.H. Hospital, Udaipur on 28.02.2009 he conducted the postmortem of Smt. Mani Bai who died on 27.02.2009 at 7.00 PM in the Ward No. 16. Mani Bai was under the medical treatment since 17.02.2009. He further stated that on the head and face of the deceased there was a lacerated wound of about 21 cm which almost got cured and on the left side of the nose up to forehead there was a mark of stitch wound. In the head there was a fracture of parietal and frontal bones measuring 10 cm. Clotting of blood was also present in the head. He further stated that in the opinion of the Board, the death was caused due to fatal injury sustained by the deceased which was sufficient to cause death in the ordinary course. 20. PW-13 Dr. Ramesh Chandra while working as Medical Jurist at R.K. Hospital, Rajsamand, examined the injured Kalu Singh and prepared the injury report (Ex. P-5). He stated that there was injury on the body of the injured being incised would of 4½cm × ½cm × 1cm deep on the right shoulder which was caused due to sharp edged weapon and the same was simple in nature. 21. PW-14 Dr. Praveen Jain who was Medical Officer at R.K. Hospital, Rajsamand had examined injured Devraj Singh and prepared the injury report (Ex. P-9). He stated that there was one bruise of 1 cm × 1 cm on the right hand side. The injury was simple in nature but was caused due to sharp edged weapon and the same was 4-8 hours old. 22. PW-16 Dr. Tarun Kumar Gupta stated that while working as Assistant Professor in Neurosurgery Department of RNT Medical College, Udaipur, he examined Mani Bai. He stated that she suffered the injury due to sharp edged weapon resulting into oozing of blood from the injury. 22. PW-16 Dr. Tarun Kumar Gupta stated that while working as Assistant Professor in Neurosurgery Department of RNT Medical College, Udaipur, he examined Mani Bai. He stated that she suffered the injury due to sharp edged weapon resulting into oozing of blood from the injury. After doing CT Scan, she was treated. She died on 27.02.2009 at around 7.00 PM. 23. PW-17 Nand Kishore Meena who is the Investigating Officer in the present case stated in his statement that he conducted the investigation in the present case after receiving the information on telephone at around 5.30 PM by Chandra Prakash. During the course of investigation, he visited the spot, arrested the accused, made the recoveries and conducted the investigation as per the procedure. 24. Ex. P-5 is the injury report of Kalu Singh, Ex. P-9 is the injury report of Devraj Singh and Ex. P-21 is the postmortem report of the deceased Mani Bai. In the postmortem report the cause of death is due to ante mortem head injury which is sufficient to cause death in the ordinary course. 25. Ex. D-2 is the injury report of accused-appellant Shivraj Singh which shows that injuries No. 1 and 2 are lacerated wound and injuries No. 3 to 9 are bruises of different dimensions. All the injuries are simple in nature. 26. We have heard learned Amicus Curiae and the learned Public Prosecutor. Perused the record of the trial Court. 27. Learned Amicus Curiae vehemently submits that it is a case of free fight which took place between both the parties and when Kalu Singh, Devraj Singh and all other persons present on the spot were beating the accused-appellant he tried to save himself and in the scuffle the fatal injury was sustained by Smt. Mani Bai. He argued that there was no motive to cause fatal injuries to Smt. Mani Bai and she sustained single injury in the heat of the moment due to scuffle which took place between the accused and a number of persons present on the spot of incident i.e. Kalu Singh, Devraj Singh etc. He argued that there was no motive to cause fatal injuries to Smt. Mani Bai and she sustained single injury in the heat of the moment due to scuffle which took place between the accused and a number of persons present on the spot of incident i.e. Kalu Singh, Devraj Singh etc. He has tried to support his argument on the strength of the statement of eye-witnesses PW-1 Chandra Prakash and PW-2 Kalu Singh, PW-4 Devraj Singh, PW-6 Smt. Ram Kunwar who in their respective statements have submitted that while Smt. Mani Bai was trying to pacify and counsel the accused Shivraj Singh, a blow was hit on her head which proved fatal. Smt. Mani Bai died after 10 days of the incident. Learned Amicus Curiae also submitted that had there been proper treatment extended to Smt. Mani Bai probably she could have been saved. 28. Learned Amicus Curiae further submits that there was no motive in killing the deceased Mani Bai. The deceased was given only a single blow that too was an accidental one. There were no repeated blows to Smt. Mani Bai, therefore, he prays that since there was no intention of the accused to kill Mani Bai, the case does not travel beyond Part-II of Section 304 IPC. 29. Learned Amicus Curiae therefore prays that order of conviction dated 27.01.2010 for the offence under Section 302 IPC may be converted into Section 304 Part-II IPC and the appellant may be released on the sentence already undergone by him. 30. On the other hand, learned Public Prosecutor vehemently opposed the submissions made by learned Amicus Curiae and submitted that the prosecution had been able to prove the case against the accused-appellant beyond all reasonable doubts. He submits that accused Shivraj Singh was a notorious person. He was threatening all the villagers and was a habitual offender. In the present case he has given a sword blow to the deceased Mani Bai on the vital parts of the body resulting into her death. Besides this the persons who tried to intervene and rescue Mani Bai were also given injuries with the sword. The injuries sustained by Kalu Singh and Devraj Singh clearly shows that petitioner had intentionally given the fatal injury to Smt. Mani Bai. Besides this the persons who tried to intervene and rescue Mani Bai were also given injuries with the sword. The injuries sustained by Kalu Singh and Devraj Singh clearly shows that petitioner had intentionally given the fatal injury to Smt. Mani Bai. He further stated that as per the eye-witnesses Chandra Prakash, Kalu Singh, Devraj Singh and Ram Kunwar, it is amply clear that the appellant Shivraj Singh was creating nuisance in the area and in the process has given a blow on the vital parts of the deceased Mani Bai with sharp edged weapon i.e. sword. The medical evidence also shows that the injury sustained by the deceased was sufficient to cause death in ordinary course of nature. Thus was hit with sufficient force and full intention to cause death of Smt. Mani Bai. The recovery of sword from the spot and the hilt (handle) of the Sword at the instance of information supplied by the accused Shivraj Singh under Section 27 of the Evidence Act clearly proves the offence under Section 302 IPC against the accused-appellant and, therefore, learned trial Court was absolutely right in convicting the accused-appellant for the offence under Section 302 IPC vide order dated 27.01.2010. 31. He therefore submits that judgment of conviction and order of sentence passed by learned trial Court does not require any interference by this Court as the prosecution has been able to prove the offence committed by the accused-appellant beyond all reasonable doubts and thus, the same is required to be upheld. We have considered the rival submissions made at bar and have minutely gone through the record of the trial Court. 32. On examining the statements of PW-1 Chandra Prakash, PW-2 Kalu Singh, PW-3 Devraj Singh and PW-6 Smt. Ram Kunwar it comes out that while accused was abusing and creating nuisance at the place of incident, Smt. Mani Bai came out of her house to counsel and pacify him, the scuffle took place and in the process she received injuries on her head and face. It is also stated in all the statements that no repeated injury was caused to the deceased. It is also seen from the evidence recorded that Kalu Singh, Devraj Singh and other persons have tried to control and pacify the accused Shivraj Singh and in the process heated altercation took place and Smt. Mani Bai happened to receive injury in the process. It is also seen from the evidence recorded that Kalu Singh, Devraj Singh and other persons have tried to control and pacify the accused Shivraj Singh and in the process heated altercation took place and Smt. Mani Bai happened to receive injury in the process. The medical evidence corroborates the fact that injuries sustained by the deceased on her face and head is the outcome of single injury. There is no other injury. She died after 10 days of the incident. The entire sequence of the incident shows lack of intention to kill. 33. The accused as per Ex. D-2(injury report of the accused) has also received almost 9 injuries. 34. Taking into consideration all these facts, we are of the view that single injury caused to deceased Mani Bai by the accused Shivraj Singh during a scuffle and there being no motive of causing the fatal blow to the deceased. No intention is forthcoming. Hence, the conviction for the offence under Section 302 IPC is not sustainable and the same is required to be converted into Section 304 Part-II IPC. 35. We gainfully gets support from the observations of the Hon'ble Supreme Court made in the case of Ramesh Vithal Rao Thakre v. State of Maharashtra, [1955] 0 AIR (SC) 1453, wherein in para 7, the Hon'ble Supreme Court has held as under:— “7. There is no denying the fact that one single injury was caused to the deceased by Ramesh when Rekha intervened to save her brother Ashok being assaulted. The primary target of Ramesh was Ashok, who got saved when Rekha received the injury on her chest. After causing the single injury to Rekha, it is the prosecution case itself, that Ramesh did not cause any other injury to Rekha nor even to Ashok, PW-1. From the evidence on the record and the established circumstances, it is not possible to say with certainty that the appellant intended to cause the death of Rekha. Even though the principle contained in Section 301 I.P.C. would be applicable to the case, it appears to us that the appellant can only be clothed with the knowledge that the injury which he was causing was likely to cause the death of Rekha but without any intention to cause her death or to cause such bodily injury as is likely to cause death. The offence, under the circumstances, would be one which would fall under Section 304 Part II I.P.C.” 36. In view of whatever stated above, we set aside the judgment dated 27.01.2010, convicting the appellant under Section 302 IPC and instead we find him guilty for the offence under Section 304 Part II of IPC and sentence him to undergo ten years' rigorous imprisonment with a fine of Rs. 5,000/-, in default thereof, the appellant shall further undergo one year's rigorous imprisonment. The sentence passed by learned trial Court for the offences under Sections 323 IPC and 324 IPC is maintained as it is. The appeal is partly allowed in the above terms.