ORDER : Mr. Sudesh Bansal, J. - Accused-appellant has filed this Criminal Appeal under Section 374 Cr PC, challenging the judgment dated 04.12.1990 in Sessions Case No.31/1990 (45/1990) titled as (State v. Sohan Lal) passed by the Additional Sessions Judge, Sikar, whereby the appellant has been convicted under Section 304 Part-I IPC and sentenced to suffer four years rigorous imprisonment with a fine of Rs. 5,000/-, in default four months simple imprisonment. 2. The contention of counsel for the appellant is that as per case of prosecution, allegation against the accused-appellant is to hit on the head of the deceased by a wooden stick, due to which, the deceased died, therefore, FIR was registered for offence under Section 302 IPC, however, after trial, the trial Court has convicted the appellant for offence under Section 304 Part-I IPC, but learned counsel contends that considering the fact that it is a case of single blow that too with a wooden stick; no pre-meditative attack, no intention of appellant to kill the deceased, no previous enmity; incident occurred in spur of moment on account of lifting some soil by deceased from the way, in front of appellant's house, hence, even if case of prosecution is taken as it is, at the most appellant could be convicted for offence under Section 304 Part-II IPC. Learned counsel contends that Sessions Court committed illegality in convicting the appellant under Part-I of Section 304 IPC, therefore, the conviction of accused-appellant deserves to be converted from Section 304 Part-I IPC to Section 304 Part-II IPC. It has been contended by counsel for accused-appellant that under Section 304 Part-II IPC, no minimum sentence is prescribed and the present incident happened wayback on 05.09.1990, therefore, taking into consideration the all attending circumstances, his prayer is that the sentence of accused-appellant be reduced to the period already undergone, fine amount may be enhanced suitably, out of which, appropriate amount may be ordered to be paid as compensation to legal heirs of deceased. In support of his contention, counsel for accused-appellant has relied upon the judgment passed by the Coordinate Bench of this High Court in case of Chhotu v. State of Rajasthan [(2011) Cri.LR (Raj) 408] and Bishnupada Sarkar v. State of West Bengal [(2012) Cr.L.R. (SC) 696]. 3. In support of his contention, counsel for accused-appellant has relied upon the judgment passed by the Coordinate Bench of this High Court in case of Chhotu v. State of Rajasthan [(2011) Cri.LR (Raj) 408] and Bishnupada Sarkar v. State of West Bengal [(2012) Cr.L.R. (SC) 696]. 3. Learned Public Prosecutor supported the impugned judgment, however, does not dispute that the blow on head of deceased was caused by using a wooden stick and it is a case of single blow, as much as prosecution evidence lacks to prove element of intention of appellant, to hit stick on the head of deceased to cause his death. 4. In order to appreciate the contentions made by counsel for accused-appellant, it is necessary to look into facts of this case in brief: 4.1 PW-5 Mohan, brother of deceased Ram Deva, lodged a report (Ex.P-5) on 06.09.1990 stating there in that in the night of 05.09.1990 around 08:00 PM when Ram Deva (deceased) was picking up some soil from the way, the accused-Sohan Lal came armed with a lathi and started to assault on the head of Ram Deva with lathi. On hearing his hue and cry, wife of Ram Deva, Smt. Keshari Devi (PW-3) and other persons from nearby houses, came on the spot. 4.2 Ram Deva, fell unconscious and was bleeding from head, he was taken to Sikar Hospital from where he was referred to Jaipur, but on the way he died. On medical examination, a wound on the head of deceased was found. During post mortem, comminuted depressed fracture, which was extending to parietal and temporal bone extended up to base of skull was found. 4.3 On conclusion of investigation, challan was filed for offence under Section 302 IPC and trial commenced. During course of trial prosecution examined 9 witnesses and exhibited documents. 4.4 In defence, the accused stated that on the day of incident, in morning a scuffle between Ram Deva and Mohan occurred due to entering animals in Arawa by children. He did slap the children. During course of trial prosecution examined 9 witnesses and exhibited documents. 4.4 In defence, the accused stated that on the day of incident, in morning a scuffle between Ram Deva and Mohan occurred due to entering animals in Arawa by children. He did slap the children. Due to such incident when the accused was returning after completing the work of Chesa from the house of Keshar Singh, Ram Deva and Mohan both chased him and Ram Deva caught hold the accused from the back and Mohan inflicted lathi blow, but the accused bend down, due to which deceased Ram Deva got the blow of stick in his head, but the accused has been falsely implicated. He also examined a witness Keshar Singh (Dw.1). 4.5 The trial Court considering the evidence and material available on record, convicted and sentenced the accused as mentioned above. 5. The case of prosecution against the appellant is that when in the night at about 08:00 PM of 05.09.1990, Ram Deva (deceased) was lifting some soil from the way, to drop the soil in his house at cowshed, appellant objected and when deceased asked that he will lift only two parats of soil, appellant became furious and hit a blow on his head with the wooden stick. Wife of deceased, namely, Keshari Devi (PW-3) and brother of deceased, namely, Mohan (PW-5) have been stated to be present on the spot and in their statements, both have narrated the same story that appellant hit the deceased by wooden stick at once on his head. Apart from PW-3 & PW-5, other prosecution witnesses Rameshwar (PW-1), another brother of deceased and Keshar (PW-2), neighbour of deceased, admit to reach on the spot, after hearing hue and cry, it means PW-1 & PW-2 are not eye witnesses of the incident and their evidence is only hearsay evidence. 6. There are only two material eye witnesses PW-3 & PW-5. From statements of both eye witnesses, it is not established that the appellant inflicted on the head of deceased with a wooden stick, having an intention to cause his death. PW-3 states that one blow of lathi was inflicted by Sohan Lal (accused-appellant) on the head of her husband, thereafter, bleeding started from his head and her husband fell unconscious. From statements of both eye witnesses, it is not established that the appellant inflicted on the head of deceased with a wooden stick, having an intention to cause his death. PW-3 states that one blow of lathi was inflicted by Sohan Lal (accused-appellant) on the head of her husband, thereafter, bleeding started from his head and her husband fell unconscious. PW-3 has not uttered a single word about the intention of appellant to hit the blow of lathi on his head to kill her husband. PW-5 also stated that Sohan Lal (accused-appellant) was armed with lathi and he hit Ram Deva (deceased) on his head with lathi at once, thereafter, Ram Deva fell down and became unconscious and started to bleed from his head. There is no evidence of prosecution that appellant had any previous enmity with the deceased. The manner in which incident has occurred, shows that the appellant inflicted lathi on the head of the deceased in spur of moment, just being infuriated by the stubbornness of the deceased to lift two parts of soil from the way despite objection by the appellant. 7. Sessions Court in the judgment impugned has nowhere recorded a finding that the appellant inflicted blow of lathi on the head of the deceased with an intention of causing his death, however, appellant has been held guilty for offence under Section 304 Part-I IPC. It may be noted that there is no finding or evidence to suggest any pre-meditation on the part of appellant to assault the deceased, leave alone the evidence to show that appellant intended to kill the deceased. The weapon used by appellant is wooden lathi, which is not a deadly weapon. Even if the case of prosecution is believed that appellant hit a hard blow by lathi on the head of deceased, and wooden stick is a heavy stick, there is evidence of prosecution that only one blow was inflicted. The weapon used by appellant is wooden lathi, which is not a deadly weapon. Even if the case of prosecution is believed that appellant hit a hard blow by lathi on the head of deceased, and wooden stick is a heavy stick, there is evidence of prosecution that only one blow was inflicted. It is true that the deceased suffered serious injury on his head which resulted into his death, but in absence of any iota of evidence to prove the intention of appellant of causing death, and looking the weapon used which is wooden stick, it can be held that appellant hit hard on the head of deceased, with an intention to kill him, rather it can be held that the act was done, just to prevent Ram Deva from lifting the soil from the way in front of his house. Since, the single blow inflicted by the appellant resulted in death of the deceased, Sessions Court has rightly treated the present case to be a case of culpable homicide not amounting to murder. But in totality of circumstances, the case of prosecution at the most falls in the category of part-II of Section 304. Sessions Court fell in error of fact and law to punish the appellant, treating him guilty for offence under Section 304 Part-I IPC. 8. It may be noted that from the post mortem report also, it was a case of only a single head injury of fracture extending to parietal and temporal bone. 9. Hon'ble Court, in case of Madhusudan Satpathy & Ors. v. State of Orissa [ AIR 1994 SC 474 ] dealt with a case of culpable homicide not amounting to murder and taking into consideration the fact that there was only one injury on the head that prove to be fatal and weapon used to cause that injury was not a deadly weapon, therefore, it was held that the case fall in the category that the accused had only knowledge that the injury inflicted by him is likely to cause death. With such observations, the conviction of accused-appellant was altered from Section 304 Part-I IPC to the offence punishable under Section 304 Part-II IPC, for ready reference, the relevant portion of judgment is being extracted hereunder: "The High Court convicted these accused under Section 304, Part I, I.P.C. read with Section 34, I.P.C. and sentenced them to undergo 6 years R.I. The medical evidence shows that there is only one injury on the head that proved to be fatal. The other injuries were found to be simple. Weapons used also were not deadly. Under these circumstances it is reasonable to hold that the appellants had only knowledge that the injuries inflicted by them were likely to cause death. In this view of the matter we alter the conviction from Section 304, Part I, I.P.C. to one punishable under Section 304, Part II, I.P.C. and we reduce the sentence of each of the appellants from 6 years R.I. to 3 years R.I." Following the ratio of judgment of Hon'ble Apex Court in case of Madhusudan Satpathy (supra) and Coordinate Bench of this High Court in case of Chhotu (supra) converted the conviction of accused-appellant from offence under Section 304 Part-I IPC to Section 304 Part-II IPC. Para No.19 of the judgment reads as under: "From the nature of injury sustained by the deceased, the intention of the accused appellant to cause death cannot be inferred, but at least knowledge can be gathered therefrom that his act was likely to cause death. In these circumstances, I am of the view that the accused-appellant could have been convicted only under Section 304 Part II I.P.C. and he learned trial Court committed an illegality in convicting the appellant under Section 304 Part-I I.P.C." 10. In the present case, it is apparent that the incident occurred suddenly and appellant hit a single blow on the head of deceased with a wooden stick which is not a deadly weapon. There is no evidence to suggest that the appellant had any pre-meditation or preparation to attack the deceased nor it is a case to hit by the appellant on the head of deceased repeatedly, only a single blow was inflicted, nevertheless that single blow resulted into grievous hurt and fracture in the parietal and temporal bone of deceased due to which he died. There is no iota of evidence from the side of prosecution to prove the element of intention of appellant to cause death of the deceased. In such circumstances, the case of appellant is squarely covered by the ratio of judgment of Hon'ble Apex Court in case of Madhusudan Satpathy (supra) and the judgment of Coordinate Bench of this High Court delivered in case of Chhotu (supra). This Court concludes that learned Sessions Court committed an illegality in convicting the appellant under Section 304 Part-I IPC. Thus, this Court deems it just and proper to alter the conviction of appellant only under Section 304, Part-II IPC instead of his conviction for offence under Section 304, Part-I IPC. 11. As far as sentence of imprisonment to be awarded to the appellant under Section 304 Part-II IPC is concerned, it is worthy to note that no minimum sentence of imprisonment is prescribed under Section 304 Part-II IPC. However, it is desirable to punish the appellant suitably befitting to the nature of offence and the manner in which incident took place. 12. It is clear from the record that the incident took place in the night of 05.09.1990 and near about 34 years have passed from the date of incident. Now Appellant has been stated to attain age of about 60 years. Looking to the nature and manner in which the incident took place in the spur of moment and there was no intention of appellant to cause death of deceased, appellant has suffered the period of incarceration for about four and half months, therefore, considering all such mitigating circumstances, however, to do complete justice between the parties, in the opinion of this Court, ends of justice would be served by sentencing the accused-appellant for a period already undergone. However, an additional fine of Rs. 1,00,000/- is imposed upon the appellant, in addition to fine amount of Rs. 5,000/- as imposed by the Sessions Court maintaining the default clause. The additional amount of fine Rs. 1,00,000/- shall be paid to legal heirs of the deceased as compensation. On the prayer of counsel for accused-appellant, a period of 8 weeks from today is granted to deposit the fine amount, failing which the appellant shall undergo simple imprisonment for a period of four months. 13. Accordingly, appeal is allowed in part and the impugned judgment stands modified as indicated hereinabove. On the prayer of counsel for accused-appellant, a period of 8 weeks from today is granted to deposit the fine amount, failing which the appellant shall undergo simple imprisonment for a period of four months. 13. Accordingly, appeal is allowed in part and the impugned judgment stands modified as indicated hereinabove. Appellant is already on bail, he need not to surrender and his bail bonds are stand discharged. 14. Record of the trial Court be sent back.