JUDGMENT : Vinit Kumar Mathur, J. 1. The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant against the judgment and order of conviction dated 31.03.2011 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Jodhpur Metropolitan in Sessions Case No. 54/2010 whereby the accused-appellant has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 2,000/- and in default of payment of fine to further undergo two months' additional simple imprisonment. 2. In short, the prosecution case emerges from the written report (Ex.P/14) filed by one Kheraj Singh (PW-9) wherein it was stated that he came from Barmer and stayed in Ratanada, Jodhpur. He went to the Agra Sweet Home, Sojati Gate on 12.01.2010 at around 10.00 A.M. for purchasing the blankets from the beggars sitting over there. He saw that one unknown beggar was sleeping in the corridor of the Agra Sweet Home in a pool of blood with injuries on his face at 2 or 3 places. The beggars Bablu Mochi and Babulal Harijan, who were sitting there, on being asked informed him that yesterday at around 11.00 P.M., Deeparam son of Samartha Sargara of Village Ghanerao, Pali and the deceased had heated altercations in connection with place to sleep. Deeparam getting annoyed, assaulted the deceased with a stone resulting into inflicting of fatal injuries. The injured beggar died last night. He did not know Deeparam but since he used to purchase the blankets received by the beggars of the Sojati Gate area in donation, he knew all of them by name. The unknown beggar was killed by Deeparam after inflicting injuries with stone. 3. On this information, a formal F.I.R. No. 17/2010 was registered at Police Station Udaimandir, Jodhpur City for the offence under Section 302 of I.P.C. 4. After conclusion of investigation, the police filed chargesheet against the accused-appellant for the offence under Section 302 of I.P.C. 5. Learned trial court framed, read over and explained the charges for the offence under Section 302 of I.P.C. to the accused appellant who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 10 witnesses and Ex.P/1 to Ex.P/17 documents were exhibited. 7. Learned trial court framed, read over and explained the charges for the offence under Section 302 of I.P.C. to the accused appellant who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 10 witnesses and Ex.P/1 to Ex.P/17 documents were exhibited. 7. The accused-appellant was examined under Section 313 of Cr.P.C. and he was confronted with the evidence adduced against him during the course of trial to which he denied and stated that he was innocent and was falsely implicated in the present case on the basis of false documents prepared by the police. However, the accused-appellant did not wish to lead any oral evidence in the defence. 8. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellant as above vide judgment dated 31.03.2011. Hence this appeal. 9. We have heard learned counsel for the appellant and the learned Public Prosecutor. 10. Learned counsel for the appellant vehemently submitted that the learned trial court was not right in convicting the accused-appellant for the offence under Section 302 of I.P.C. as there were material contradictions in the statements of the prosecution witnesses. 11. He further submits that it has come in the statements of the prosecution witnesses more particularly PW-7 Babulal wherein it was stated that it was a case of sudden fight and after heated altercations on the spur of the moment, the accused-appellant inflicted injuries to the unknown beggar, which ultimately proved fatal. The fight between the deceased beggar and the accused-appellant took place in connection with the food and the place to sleep and in the sheer heat of moment, the accused-appellant lost control and inflicted the fatal injuries by a stone lying nearby. There was no intention on the part of the accused-appellant to cause death of the deceased beggar. Thus, in the present set of facts, the offence alleged would not travel beyond Section 304 Part II of I.P.C. 12. He further submits that the accused-appellant is behind the bar since last more than nine years. He, therefore, prays that the conviction of the accused-appellant for the offence under Section 302 of I.P.C. may be converted to one under Section 304 Part II of I.P.C. with suitable reduction in the sentence. 13. He further submits that the accused-appellant is behind the bar since last more than nine years. He, therefore, prays that the conviction of the accused-appellant for the offence under Section 302 of I.P.C. may be converted to one under Section 304 Part II of I.P.C. with suitable reduction in the sentence. 13. Per contra, learned public prosecutor has submitted that the prosecution had been able to prove its case against the accused-appellant beyond all reasonable doubt on the strength of the testimony of the prosecution witnesses recorded before the learned trial court. He further submits that the statements of PW-7 Babulal and PW-9 Kheraj Singh clearly established the fact that it was accused-appellant alone who had inflicted the fatal injuries to the deceased beggar, which were corroborated by the medical evidence in the shape of statement of PW-3 Dr. P.C. Vyas and the postmortem report (Ex.P/2) wherein the cause of death of the deceased beggar was stated to be head injury sufficient to cause death in the present case. He, therefore, submits that the learned trial court was perfectly justified while convicting and sentencing the accused-appellant for the offence under Section 302 of I.P.C. vide Judgment dated 31.03.2011 and no interference in the same is warranted by this Court. 14. We have heard the submissions made at the bar and closely scanned the record of the trial court. 15. The facts having not been disputed, the only question which is required to be examined by us in the present case is whether the conviction of the accused-appellant is liable to be sustained under Section 302 of I.P.C. or is required to be converted under Section 304 Part II of I.P.C. 16. PW-9 Kheraj Ram who is the first informant in this case stated that when he went to Caltax near the Stadium where he heard that Deeparam had heated altercations with an unknown beggar and after heated altercations, the fatal injuries were caused by Deeparam to the unknown beggar resulting into his death, who was not known to him. 2-3 persons (Baba) who were standing near the dead body on the Sojati Gate said that Deeparam had murdered him. He did not remember the names of those persons but they were telling that after the fight between unknown beggar and Deeparam, the injuries were inflicted with a stone which was lying on the spot. 2-3 persons (Baba) who were standing near the dead body on the Sojati Gate said that Deeparam had murdered him. He did not remember the names of those persons but they were telling that after the fight between unknown beggar and Deeparam, the injuries were inflicted with a stone which was lying on the spot. He lodged the complaint and affixed his signatures on some of the memos prepared during the course of investigation by the police. 17. PW-7 Babulal stated that since last 40 years, he was begging near the Ganesh Temple in Jodhpur and also used to sleep on the footpath near the Bata Company. He did not know Deeparam. Deeparam was doing the work of scrap dealer who was regularly coming and sitting there. Besides Deeparam, there were other beggars also who used to sit near the temple. The unknown beggar had exchange of hot words with Deeparam in connection with "Roti" and because of this, they had heated altercations and in the incident, the injuries by stone were inflicted by the accused-appellant to the unknown beggar, who was sleeping. The unknown beggar had sustained injuries and was profusely bleeding. Since the accused-appellant Deeparam was roaming in the close vicinity, they helped the police to nab him. 18. PW-3 Dr. P.C. Vyas who conducted the autopsy explained the injuries on the body of the deceased beggar and stated that the cause of death was head injury suffered by the deceased. 19. PW-10 Vedprakash is the investigation Officer who conducted the investigation of the matter and stated that he prepared the site plan, recorded the statements of the witnesses, collected the samples and after conducting the investigation, as prescribed in law, submitted his report before the court of competent jurisdiction. 20. The postmortem report is Ex.P/2 wherein the cause of death is shown as head injury sufficient to cause death. The F.S.L. report is Ex.D/2. Ex.P/15 is the information given by the accused-appellant under Section 27 of the Indian Evidence Act followed by recovery of the stone with which the injuries were inflicted by him to the unknown beggar. 21. The fact that the deceased was a beggar and was sitting and sleeping in the close vicinity of the Ganesh Temple, Sojati Gate, where besides other beggars, the accused-appellant also used to beg. 21. The fact that the deceased was a beggar and was sitting and sleeping in the close vicinity of the Ganesh Temple, Sojati Gate, where besides other beggars, the accused-appellant also used to beg. It is a fact that while begging, the trivial issues with respect to the food and place to sit and sleep are of prima consideration for them. In the present case, it has come in the testimony of PW-7 Babulal that there was exchange of hot words between the deceased beggar and the accused-appellant in connection with the food and eventually, the place where the deceased was sleeping, was perhaps occupied by him which otherwise used to be the place where the accused-appellant used to sit and sleep. Since the accused-appellant was annoyed and in the spur of the moment, the injuries were inflicted without there being any intention to cause death as the fight for food and a place to sit were between the persons who are in the lowest rank of the society being beggars. A hungry man is liable to get furious if the fight is for "Roti" then, it is natural that at the spur of moment, a person may loose control of his senses as happened in the present case and commit an offence which is beyond his control in heat of passion. In the present case, it has come on record that because of the fight, the accused-appellant inflicted injuries to the unknown beggar with a stone lying nearby due to grave and sudden provocation and there being no previous enmity between them, in our opinion, it is a case which comes within the scope of Section 304 Part II of I.P.C. as there was no intention on the part of the accused-appellant to cause death of the unknown beggar. We are gainfully supported by the observations of the Hon'ble Supreme Court made in the case of Ramesh Vithal Rao Thakre vs. State of Maharashtra, (1995) 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. 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." 22. In view of whatever stated above, we are of the opinion that the conviction of the accused-appellant under Section 302 of I.P.C. as recorded by the learned trial court vide Judgment dated 31.03.2011 is not sustainable and the same is required to be modified and converted into under Section 304 Part II of I.P.C. While converting the conviction of the accused-appellant from the offence under Section 302 of I.P.C. to one under Section 304 Part II of I.P.C. in our view, the interest of justice will be met if the sentence awarded to the accused-appellant by the learned trial court is reduced from life imprisonment to nine years rigorous imprisonment. The sentence of fine is maintained. The impugned judgment dated 31.03.2011 stands modified to that extent. With these observations, the appeal is partly allowed.