JUDGMENT :

Dhananjaya Y. Chandrachud, J.

1. This appeal arises from a judgment of a Division Bench of the High Court of Judicature for Rajasthan dated 13 August 2008. The High Court, while allowing the appeal filed by the respondent, convicted him under Section 304 Part-II of the Indian Penal Code ('Penal Code') instead of Section 302. The High Court sentenced the respondent to the period which was already undergone, stated to have been approximately five years and five months. The State is in appeal against the decision.

2. A First Information Report was lodged by Satya Narayan Swami (PW-2) at Singhana (Rajasthan), that at about 6.30 p.m. on 27 February 2003, the deceased-Ram Kumwar Swami - was proceeding for some work at a chakki. While he was passing by the hand pump near the house of Sriram Swami, three persons - Rajesh, Jagdish and Leela Ram (the respondent herein) attacked the deceased and caused serious injuries to him. The case of the prosecution is that the respondent inflicted an axe injury on the skull of the deceased which was the cause of death. Rajesh, Jagdish and the respondent were tried for offences under Sections 341, 323, 336 and 302, read with Section 34 of the Pen