1. - This appeal is directed against the judgement of learned Sessions Judge, Bundi dated 30.4.1986 whereby the accused-appellant was convicted for offence under Section 304 Part II of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of four years and with fine of Rs. 1,000/- with the stipulation that in the event of default in making payment of fine, he shall have to further undergo simple imprisonment of six months.

2. The facts giving rise to this appeal are that on 3.11.1985, one Smt. Tulsa lodged a report with Police Station Talera, Distt. Bundi that in the afternoon of that day, her husband Krishna and son Ram Lal were turning after grazing their cows. Accused appellant Ramdeva inflicted a blow on the head of Krishna with the intention of killing him. The incident took place near Khali situated at some distance from their village. Her son Ramlal came rushing to their house and told the informant about the incident. She and Ramlal along with Ganpat, immediately went to the place of occurrence and brought Krishna to the house. R.S. Gujar of Bhawanipur who was passing by at that time and one another person by the name of Gujar, resident of Gangru, witnessed the incident. Since the injured Krishna was having severe pain, he was taken to the hospital in a tractor. Although apparently no blood was coming out of his body, but it appears that he had sustained a grievous injury in his hand. On receiving this report, the police registered the case for offence under Section 307 Indian Penal Code. Since there was no doctor available in the Talera dispensary, the injured was moved to Government hospital Bundi where he succumbed of his injury and as such the offence of Section 302 Indian Penal Code was later added in the matter. After filing of charge sheet, the accused denied the charge of Section 302 Indian Penal Code, therefore, the trial proceeded. The prosecution examined as many as 11 witnesses and exhibited documents. The accused in his defence, apart from his own statement under Section 313 Criminal Procedure Code, has produced DW-1 Dr. Nirmal Singh as a witness and tendered various documents in evidence. The trial court upon completion of the trial, however, convicted the accused appellant for offence under Section 304 Part-II as aforesaid. Hence this appeal.

3. I have heard Shri Sanjay Mehrishi, learned counsel for the appellant and Shri B.S. Chhaba, learned Public Prosecutor.

4. Shri Sanjay Mehrishi, learned counsel for the appellant has argued that the learned trial court erred in law in relying on the testimony of PW-2 Ram Lal and PW-4 Gopal and further erred in holding that their testimony was corroborated by statement of PW-7 Dr. Kamlesh. It was argued that the informant in the FIR did not mention any weapon with which the accused was armed and simply stated that he delivered a blow on the head of the deceased, still in the Inquest Report the police developed the case that the accused appellant had inflicted a blow with the jelly on the person of the deceased. It was argued that jelly is a sharp edged weapon and when the witnesses have not specified as to the accused caused the blow from which side of the jelly, the normal presumption would arise that it was a sharp side for which a sharp edged weapon could be used. He in this connection relied on the judgement of Supreme Court in Hallu @ Ors. vs. State of Madhya Pradesh-(1974) 45 SCC 300 and Bhola Singh vs. State of Punjab-(1999) 9 SCC 50. There was only lacerated wound on the head of the deceased. PW-2 Ram Lal has stated that the accused-appellant inflicted the blow of 'ankari' on the head of the deceased. 'Ankari' is also known as jelly. PW-4 Gopal and PW-5 Radhey Shyam have also stated about use of jelly/ankari and by that weapon causing injury on the head of the deceased. It was argued that the testimony of PW-4 Gopal and PW-5 Radhey Shyam did not inspire any confidence because their conduct was doubtful. Even though they have stat