S.S.JHA,J. - (1.)APPELLANT accused had lodged FIR. Ex. P/9 in the police Station. Deceased Shyamlal was having illicit relations with the wife of the accused. Accused objected to the affairs, but the deceased told him that he shall continue his affairs with the wife of the accused. After some hot talks, the accused had given four blows by hammer on the heed of the deceased. Seizure of hammer at the instance of appellant is proved by PW 7 Ramadhar Tiwari. Blood Stained clothes of the deceased were also seized and were sent for forensic examination. Forensic Expert's report is Ex.P/22 wherein Items No. 24 and 26 were found to be stained with 'B' Group blood. Considering the admission of the appellant and seizure at the instance of appellant, we are of the opinion that the incident occurred all of a sudden, and the appellant had assaulted the deceased in heat of passion. From the prosecution case itself, it is clear that there was no intention on the part of appellant to cause death of the deceased.
(2.)THUS , conviction of the appellant under section 302, IPC is set aside and the appellant is convicted for an offence under section 304 Part I Indian Penal Code. Appellant has remained in jail for more than five years. Therefore, considering the facts of the case and the evidence on record, the appellant is sentenced to the sentence already undergone by him. Appellant be released forthwith, if not required in any other case. Copy of the judgment be sent to the Chief Judicial Magistrate, Gwalior for issuance of release warrant. Appeal succeeds in part.