The court altered the conviction from Section 304 Part-I IPC to Section 304 Part-II IPC, emphasizing the absence of intent to kill and the nature of the incident as impulsive.

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. 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. Du