M.L. Jain, J. - (1.) THIS is an appeal against the judgment of the Additional Sessions judge, Bundi dated 9 -10 -71 by which he convicted Modu appellant under Section 304 part II IPC and sentenced him to undergo rigorous imprisonment for five years. He was also convicted under Section 323 IPC and sentenced to rigorous to imprisonment for six months Both the sentences were directed to run concurrently. By the same judgment appellant Badri was convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for six months.
(2.) I heard the arguments  and perused the record. The prosecution case is that on March 22, 1971, in the morning appellant Modu carried his she costs in the field of Gopal at Kajodji's Jhoppriyan within the police station Gendoli, District Bundi. The goats began to damage crops to which Gopal objected and began to drive the goats out of the field. It is alleged that Modu then gave a lathi blow on the left hand of Gopal, His brother Sarwan went to the village about a mile away & brought his brother Chittar. At the same time, Latoor also reached the scene of occurrence in order to rescue his brother Chhitar but Modu bit him with lathi and Latoor died. The occurrence is said to have taken place at about breakfast time, while the report was made at about 1.45 p.m, as shown in Ex. P5A.
(3.) DARING investigation, the Police Officer arrested the accused next day. Upon the information of accused Modu, be recovered a lathi, vide memo Ex. P6 dated 26 -3 -71, He had prepared the site plan Ex. P1 on 24 -3 -71.;