JUDGMENT : Dinesh Mehta, J. The present Appeal has been sent by the appellant - convict - Rupa from Central Jail, Udaipur against the judgment and sentence dated 04.02.2009 whereby, the appellant has been convicted under Section 304 Part-II of the Indian Penal Code and sentenced to undergo 10 years' rigorous imprisonment for causing fatal injuries to Raja W/o Laxman. 2. Briefly stated, the case as portrayed by the prosecution has been that the informant - Laxman lodged a written complaint at Police Station Pipalkhunt on 12.07.2008, that Rupa S/o Kamji Meena has murdered his wife Raja. As per the facts narrated in the FIR; Kankudi w/o Kamji Meena came to his place, shouting that his son Rupa has given a lathi blow to his wife (Raja), as a result of which, she is lying in the house. When Kankudi informed about such incident, complainant's sister - Sattudi, her daughter - Sangeeta and Sushila were present, all of them, along with Kankudi rushed to the house of Rupa about 200 mtrs. away, to find that his wife Raja was lying on a bed (Khat) in Rupa's house, injured on the right side of her head, bleeding profusely. It was also asserted in the FIR, that the accused - Rupa has confessed, in presence of his daughter - Sangeeta, sister - Sattudi and brother's daughter - Sushila, that during the course of altercation with Raja, the accused-appellant has given a lathi blow. Thereafter, when Raja was taken to Hospital at Pratapgarh on a motorcycle where the Doctors declared her to be dead. Information of such incident was given to the Police Station at around 12:30 am, in pursuance whereof, the Police registered a case under Section 302 of the Indian Penal Code against the appellant. 3. After investigation and collection of evidence, a charge-sheet came to be filed against the appellant, for the offence punishable under Section 302 of the Indian Penal Code, which was committed to the learned Additional District & Sessions Judge (Fast Track), Banswara (hereinafter referred to as the 'Trial Court'), which framed the charge of murder against the accused, punishable under Section 302 of the Indian Penal Code. 4. Needless to say that the accused - Rupa, while giving his statement under Section 313 Cr.P.C., has denied the charges and prayed for trial of the case. 5. 4. Needless to say that the accused - Rupa, while giving his statement under Section 313 Cr.P.C., has denied the charges and prayed for trial of the case. 5. In a bid to prove the charge against the accused, the prosecution produced 17 witnesses and produced documentary evidence, being Exhibit P-1 to Exhibit-18. 6. On the basis of the oral as well as documentary evidence, though the Trial Court concluded that the accused - Rupa had hit Raja with a lathi which has caused her death, yet, as the prosecution had failed to establish the motive behind such assault, convicted the accused - Rupa for the offence punishable under Section 304 Part-II of the Indian Penal Code and sentenced 10 year's rigorous imprisonment with a fine of Rs. 3,000/-. 7. Assailing the judgment and sentence dated 04.02.2009, Mr. Kalu Ram Bhati, learned Amicus Curiae, argued that the order under consideration passed by the learned Court below is based on conjectures and surmises, the Trial Court has convicted the accused-appellant on circumstantial evidence which did exist at all and on extra-judicial confession, which is a very weak basis for convicting an accused. He submitted that no one except Kankudi, the mother of the accused, who is said to have informed the informant-Laxman, was present on the spot on the fateful day. As per the prosecution, it was Kankudi, who had informed the Informant, about such incident in presence of his daughter - Sangeeta etc., that Rupa, her son has given a lathi blow on the head of Raja (deceased); but, when said Kankudi appeared in the witness-box, she totally refused to have witnessed the incident. 8. Mr. Bhati submitted that though Kankudi (PW -8) has been declared hostile, as she has supported the prosecution's story and has rather deposed that she does know, who killed Raja and went on to say that Raja (deceased) was lying on the border of the farm and on the bed at Rupa's house, as had been claimed by the prosecution. In view of the statement given by Kankudi (PW-8), the mother of the accused - appellant, learned Amicus Curiae Mr. Bhati, appearing for the appellant, suggested that as a matter of fact, Raja (deceased) was found lying in the field and and lying on the bed, in the house of the accused - Rupa and she was later brought to the house by the complainant. Bhati, appearing for the appellant, suggested that as a matter of fact, Raja (deceased) was found lying in the field and and lying on the bed, in the house of the accused - Rupa and she was later brought to the house by the complainant. 9. Mr. Bhati contended that all the witnesses produced by the prosecution, including Laxman (PW-1), Sangeeta (PW-6), Sattudi (PW-5) and Sushila (PW-7) were interested witnesses, who had seen the incident themselves, and have simply relied upon the alleged version of Kankudi (PW-8), who herself has supported the story; as such, their testimony is nothing more than hear-say, sufficient to hold the accused (Rupa) guilty of the offence. 10. Learned Amicus Curiae appearing on behalf of the appellant navigated the Court through the statements of prosecution's witnesses to contend that the prosecution has failed to bring to fore, the motive behind such blow/assault and in absence of such motive, Appellant's involvement in killing Raja, her Aunt, is highly improbable, particularly when, it is the prosecution's case that there was a prior animosity or cause for provocation, for which, the accused would have given such a blow which might cause death of Raja. He argued that the accused-appellant has been falsely implicated in the present case and there is no evidence, worth the name, to hold him guilty of the offence, he has been convicted for. 11. Mr. S.K. Vyas, learned Additional Advocate General-cum-Public Prosecutor appearing on behalf of the State, on the other end, submitted that the judgment and sentence under consideration passed by the learned Trial Court is infallible and calls for no interference. He submitted that it is true that Kankudi (PW -8), the mother of the accused (Rupa), who had been the first one to call the informant - Laxman and others namely, Sangeeta, Sattudi etc., informing that Rupa has hit with a lathi blow to Raja (deceased) but had later on became hostile; as probably, no mother, would depose against her son, but nevertheless prosecution's case has failed on such count. He emphasized that their case was solely dependent on Kankudi's version, who was an eye-witness, but the same was edificed on the confession, which the accused (Rupa) had made, before Laxman, Sattudi, Sangeeta etc., who had assembled at the site, on the call of Kankudi, immediately after the incident took place. He emphasized that their case was solely dependent on Kankudi's version, who was an eye-witness, but the same was edificed on the confession, which the accused (Rupa) had made, before Laxman, Sattudi, Sangeeta etc., who had assembled at the site, on the call of Kankudi, immediately after the incident took place. All of whom have in one tune deposed that the accused (Rupa) had confessed to have hit Raja with a lathi at his house, found lying on the bed in his house. 12. Mr. S.K. Vyas further contended that the findings of the Court below are duly supported by the circumstantial evidence, inasmuch as all the witnesses have deposed that Rupa was present at the place of incidence, where Raja (deceased) was lying with an injury on her head, profusely bleeding and blood stains were also available on the floor. Learned Public Prosecutor emphasized that the Investigating Officer had collected samples of blood stained sand and also recovered blood stained Ghaghara ¼ywaxM+h½ of the deceased from the place of incidence, while recovering the subject square piece of Teak Wood from the house of the appellant (Rupa), by which the blow was given. Mr. Vyas invited attention of the Court towards the statement of the Doctor, namely Dr. Om Prakash Dayma (PW-16), who deposed that the injuries in question can be caused by the subject lathi and the same were fatal and enough to cause death of a person. 13. In view of the facts of the case and in light of the evidence available on record, the learned Public Prosecutor submitted that the learned Court below has rightly held the accused (Rupa) guilty of offence under Sectrion 304 Part-II of the Indian Penal Code and the judgment and sentence calls for no interference, as the prosecution has proved beyond any peril of doubt that it was the convict-appellant (Rupa), who has caused injuries with a lathi blow on the head of Raja, which has resulted in her death. 14. Having heard learned counsel for the appellant; learned Public Prosecutor; and upon perusal of the statement and documentary evidence, the proven incidence which has surfaced is, that PW -1, husband of the deceased Raja, has deposed that when Kankudi rushed to his house and shouted that "Laxman Kaka! 14. Having heard learned counsel for the appellant; learned Public Prosecutor; and upon perusal of the statement and documentary evidence, the proven incidence which has surfaced is, that PW -1, husband of the deceased Raja, has deposed that when Kankudi rushed to his house and shouted that "Laxman Kaka! my son Rupa has inflicted lathi blow to your wife - Raja Kaki, and she is lying in her house" he along with his sister - Sattudi, daughter - Sangeeta etc., rushed to the spot, about 200 meters away from his house and found that Raja was lying on a bed with her head bleeding; and that Rupa had confessed to have given a lathi blow to his wife, while accepting his guilt. It has been echoed by other witnesses, namely, Sattudi (PW-5), Sangeeta (PW-6), Sushila (PW-7), all closely related with the complainant and the appellant, by deposing that when at the call of Kankudi, they reached appellant's house, appellant was present on the spot and had accepted his guilt of having hit the deceased with lathi. It is true that Kankudi, who is said to be the first person to inform all these witnesses has turned hostile and has denied almost everything, except the fact that Rupa, the appellant, is her son and that Raja had died; but her hostility does demolish the prosecution's case. The stance of PW-8 Kankudi is easily explicable, as no mother would depose against her son. However, her action of calling others immediately after the incidence, was a natural reflex reaction, triggered by the impulse and anxiety, which renders a person clueless of the pros & cons, when both the person involved, the offender and victim are close relatives, for which she rushed shouting to call attention/help. 15. In the aforesaid factual matrix, this Court does find any substance in the argument of Mr. Bhati, that since the only eyewitness Kankudi has turned hostile, there is no evidence to convict the appellant. Kankudi's behaviour is well a natural behaviour of a woman, more particularly when she is a mother. 16. 15. In the aforesaid factual matrix, this Court does find any substance in the argument of Mr. Bhati, that since the only eyewitness Kankudi has turned hostile, there is no evidence to convict the appellant. Kankudi's behaviour is well a natural behaviour of a woman, more particularly when she is a mother. 16. Prosecution's case would have failed, had it been solely edificed on the evidence of Kankudi, the mother of the appellant; but the same was based on extra-judicial confession, which the appellant had made, before the complainant - Laxman and all other aforesaid witnesses, who in no ambiguous terms, have stated in unison that Rupa had admitted to have beaten Raja with a lathi on her head, while he was still present at the site, when they reached to Rupa's house after the call by Kankudi. 17. The prosecution had also based its case on the circumstantial evidence, which goes to show that immediately after the incident, which had taken place at the house of Rupa, he was found, with Raja lying on bed with blood on the floor as well as on her clothes, the square piece of wood (lathi), used to cause the blow. 18. The post-mortem report and the statement of Doctor, PW-18 also corroborates the incidence and the story of the prosecution that the lathi, which has been recovered from the appellant's house/possession, can cause the kind of injury, the decedent had sustained. 19. The recovery of blood stained sand from the floor and the blood stained Ghaghara of the deceased leaves no room for doubt that the incident had taken place at the house of the appellant. 20. In the backdrop of the statement of witnesses and the circumstantial evidence, this Court has reached to a irresistible conclusion that the incident took place at the house of the appellant, the deceased was found lying on the bed in the open space of Rupa's house, from where, the blood stains and the lathi used in the offence has been recovered. This Court concurs with the conclusion of the Trial Court that it was the appellant alone, who has caused the injury to the deceased, for which, she has passed away. 21. This Court concurs with the conclusion of the Trial Court that it was the appellant alone, who has caused the injury to the deceased, for which, she has passed away. 21. The argument advanced by the appellant, based on the statement of Kankudi that Raja was lying at the bulwark of the field and she did know about the person, who has killed her, that in view of such statement, the place of incidence was the field (farm) and the Rupa's house, cannot be accepted, more particularly, when she has even disclosed as to what she was doing at the field, when Raja was lying and/or how did she come to know about the factum of Raja lying in the field, particularly when, in the same breath, she says that she does know that who has killed Raja. 22. Except the aforesaid witness Kankudi, who happens to be the mother of the appellant, everybody has supported the story of the prosecution, that Raja was beaten in Rupa's house. In considered view of this Court, the testimony of Kankudi, who has turned hostile, neither inspires confidence, nor the same is worthy of any credence. 23. In view of the discussion foregoing, this Court does find any flaw in the impugned judgment dated 04.02.2009 and concurs with the view taken by the learned Court below, that Rupa has given a lathi blow in the impulse or heat of the moment, having no intention to kill her, though cognizant of the danger that such a lathi blow may cause her death. 24. Hence, appellant's conviction under Section 304 Part-II of the Indian Penal Code is upheld. 25. Mr. Bhati, learned Amicus Curiae appearing for the appellant has informing that the appellant after his imprisonment on 14.07.2008, remained in custody till 25.05.2010, when he was released on bail, as his sentence has been suspended by this Court, vide its order dated 11.05.2010, alternatively submitted that, in wake of the findings recorded by the Trial Court, coupled with the fact that the appellant has been convicted under Part-II of Section 304 of the Indian Penal Code, the sentence awarded to the appellant be reduced to the term he has undergone. In aid of his prayer aforesaid, Mr. In aid of his prayer aforesaid, Mr. Bhati, submitted that the appellant is a Tribal, aged 38 years, who has to look-after his family and that the untowardly incident had taken place at a sudden provocation, for which, the appellant himself has confessed before the complainant and other witnesses. He emphasized that as the appellant has been convicted on the basis of such confession itself, he implores a benevolent view. 26. The perusal of the judgment impugned reveals that though the learned Court below has convicted the appellant under Part-II of Section 304 of the Indian Penal Code, yet has awarded the sentence of 10 years' rigorous imprisonment, with the fine of Rs. 3,000/-, without taking into consideration the subtle distinction between the punishment provided under Part-I & II of the Code. If the punishment provided under Part I & II are read in juxtaposition, it transpires that if an accused is held guilty of committing culpable homicide amounting to murder and the 'act', due to which, death is caused, is done with an intent of causing death falling under Part-I, he is required to be punished for imprisonment for (i) life or (ii) imprisonment for 10 years and fine, whereas if such act has been done without any intention to cause death, but with a knowledge that such act may cause death, the accused is liable for (i) imprisonment for a term upto 10 years, (ii) fine or (iii) both. 27. The distinction between Part-I & II of the Code is that under Part-I, the sentence prescribed is either life imprisonment or imprisonment upto 10 years with fine, whereas in an offence falling under Part-II, the sentence prescribed is imprisonment for a term which may extend to 10 years, which means that the sentence can be upto 10 years. 28. In the opinion of this Court, the Indian Penal Code provides a leeway or discretion with the Court, even to impose fine only and/or imprisonment upto 10 years. A conjoint reading and purposive interpretation of such provision suggests that this distinction has been carved out, as the motive plays a vital role & become very relevant consideration, while awarding a sentence to a convict/accused. In absence of some motive, the Court is required to apply a liberal/moderate approach. A conjoint reading and purposive interpretation of such provision suggests that this distinction has been carved out, as the motive plays a vital role & become very relevant consideration, while awarding a sentence to a convict/accused. In absence of some motive, the Court is required to apply a liberal/moderate approach. The Trial Court has, however, awarded the sentence and penalty, as prescribed under Part-I of the Code, completely overlooking the distinction between the two parts. 29. The surrounding circumstances, which require special attention are that the appellant had used a square wooden stick of 3 feet, lying at the house, which is pointer of the fact that the incident took place on the spur of the moment or on sudden provocation; the appellant did have any intention to kill the victim (Raja), who was nonetheless her Aunt; and that the prosecution has even brought forth any motive, much less proving it. 30. In the facts and circumstances obtaining in the present case, this Court deems it appropriate to reduce the sentence awarded to the appellant from 10 years' to 5 years' Rigorous Imprisonment, along with a fine of Rs. 20,000/- (Rupees Twenty Thousand only), as a compensation to the family of the deceased. On failure to pay such fine of Rs. 20,000/-, the appellant shall further undergo one year's rigorous imprisonment. 31. Needless to observe that the sentence already suffered by the appellant shall be reckoned against such term of 5 years. 32. The appeal preferred on behalf of the appellant - Rupa is partly allowed, in the manner indicated above. 33. The appellant is on bail. His bail bonds are cancelled. He shall be taken back into custody forthwith to serve out the remainder of the sentence. 34. Record be returned to the Trial Court forthwith.