Hon'ble GANGULY, J.—Heard learned counsel for the parties.

2. The State of Rajasthan is in appeal before us impugning the judgment dated 19.2.2003 passed by the High Court whereby the High Court by its judgment disposed of two appeals, being Criminal Appeal No. 401 of 1997 and Criminal Appeal No. 380 of 1997. The appeal of the State is in respect of Criminal Appeal No. 401 of 1997. By the judgment of acquittal rendered by the High Court in the aforesaid criminal appeal, it inter alia, confirmed the conviction of the other accused, namely, Rujdar, Ilias, Muvin, and Manna under Section 323 IPC but modified their sentence awarded to them by enhancing the fine instead of imposing imprisonment.

3. The appeal of the accused Asru, Guncheri, Mohammada, Kalto, Roshan and Titta was allowed and they were acquitted from the charges under Sections 148 and 336/149 IPC.

4. So far as Islam is concerned, the High Court set aside his conviction under Section 302 and converted it under Section 304 Part II IPC considering that Islam had already undergone detention for more than six years. The High Court also imposed a fine of Rs. 30,000(Rupees Thirty Thousand) on Islam and held that the same would meet the ends of justice.

5. Impugning that judgment, when the State filed Special Leave Petition before this Court, a Bench of this Court, while granting leave, passed the following order:-

“Delay condoned.

Leave granted to the extent of respondent No. 1-Islam only. As to other respondents the special leave petition is dismissed.

Issue warrants bailable in an amount of Rs. 10,000/- only requiring production of accused-respondent no. 1 before the Trial Court on the dates to be appointed by it or before this Court as directed. The bail bonds shall be furnished to the satisfaction of the Trial Court.”

6. Therefore, the purpose of our examination is confined to the question whether in passing the order of conversion of sentence from Section 302 IPC to Section 304 Part II IPC in respect of respondent no. 1, the High Court exercised its judicial discretion properly. It may be mentioned in this connection that the Trial Court, namely, Court of Additional District & Sessions Judge, Deeg convicted respondent no. 1 under section 302 IPC and convicted him to undergo life imprisonment and a fine of Rs. 1000/-, in default, to further undergo imprisonment of six months.

7. Learned counsel for the appellant while taking us though the judgment of the Trial Court drew our attention to the evidence of PW 7, PW 9, PW 12, PW 16 ad PW 17 and submitted that these are all eye-witnesses and there is consistent evidence of these eye-witnesses about the involvement of respondent no. 1 in the commission of crime, namely, the murder of Jenu. The material facts relevant for our consideration are that on the date of the incident, i.e. 18.3.1988, a meeting was held in the morning for raising some funds for repairing the mosque and in the said meeting, an altercation took place between respondent no. 1 and various other persons of the area who assembled for the meeting. One of the person assembled there told PW 7 that he had been treacherous in misappropriating public funds for repair of the mosque. There was a minor shuffle amongst those who had assembled there. It is the consistent evidence of the witnesses mentioned above that after that, respondent no. 1 along with others went home and came back armed with a 'Farsa'. It is also the consistent evidence that respondent no. 1 hit Jenu thrice on his head with the Farsa. This evidence has been consistently repeated by PW 7, PW 9, PW 16 and PW 17. PW 12 said that Islam hit Jenu with Farsa on his head but the number of times had not been mentioned by him.

8. Appreciating the evidence of these witnesses, the Trial Court reached the finding that respondent no. 1 can be held guilty under Section 302 IPC and accordingly found him guilty under Section 302 IPC and sentenced him for life imprisonment. The High Court has noted the injuries on the decease

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