JUDGMENT Mahavir Singh, J. 1. THIS is an appeal by Ghanshyam against his conviction under Section 302, IPC and a sentence of imprisonment for life. 2. THE prosecution case was that the deceased Pyarey was suffering from dysentery and, therefore, he often used to go to ease himself. On 13-10-1970 at about sunrise he felt a strong urge for easing himself. So he went inside the Khandahar of the appellant which was to the back and east of his residential house. It is said that the appellant saw the deceased easing himself in his Khandahar and so he assaulted him with a Sonta. On the cries of the deceased, his son Ram Bhawan (PW 1), Sheo Darshan (PW 2), Brindaban (PW 3) and Matai (PW 4), who were all neighbours, rushed towards the Khandahar. THE appellant ran away saying that the deceased had gone mad as he was easing in his Khandahar. On receipt of the injuries the deceased had become unconscious. He was, therefore, taken to the village hospital and then to Unchahar. He was advised to be taken to Rae Bareli. In the meantime he had gone to P.S. Mustafabad and lodged a report (Ext. Ka-1) at 9.30 A. M. The case was, however, registered by Bhuneshwar Pal Singh, Head Constable (PW 5) under Section 323, IPC only and was kept as a non- investigating one. The Station Officer was also not present at the police station. The complainant returned to the Police station at 10.30 A. M. and informed the Head Constable that the condition of his father was not good and he was not being treated properly. So he had sent the constable to the hospital. Then the injured was taken to Rae Bareli but he died there in the evening. 3. THE Station Officer Sheo Mant Singh (PW 6) returned to police station the next day, i.e. 14th October, 1970 and learning about this fact he first got it changed into one u/Sec. 308, IPC and took up the investigation. He reached the village the same day at 10.30 A. M. and interrogated the witnesses and prepared a site plan. Next morning he learnt about the death of Pyarey when Ram Bhawan returned to the village. He was interrogated. THE case was also got changed from Section 308 to Section 304, IPC and a charge sheet was submitted against him for that offence. Next morning he learnt about the death of Pyarey when Ram Bhawan returned to the village. He was interrogated. THE case was also got changed from Section 308 to Section 304, IPC and a charge sheet was submitted against him for that offence. THE committing court, however, framed the charge against the appellant under Section 302 IPC and committed him to stand bis trial for that offence. 4. THE appellant had denied the change altogether and alleged his implication in the case because of enmity. He examined his father in defence as DW 1. The learned Sessions Judge believed the prosecution case and held that it was the appellant who had given blows to Pyarey when he was easing himself in his Khandahar. He also held that the: offence was one under Section 302, IPC and so convicted him as such but sentenced him only to imprisonment for life:. 5. IN the grounds of appeal filed on behalf of the appellant his conviction and sentence were challenged as bad in law and against the evidence on record. At the time of the hearing of the arguments the learned counsel for the appellant did not appear. We were, therefore, taken through the file by the learned Government Advocate. 6. SO far as the factum of murder of Pyarey is concerned, the same was not disputed in the trial court. There is also overwhelming evidence for the same. Dr. R. C Srivastava conducted the post mortem examination on the body of the deceased. His statement recorded in the committing court is exhibit Ka-13 and the post-mortem report is exhibit Ka-1. Those were tendered in the Sessions court. The statement showed that the deceased had received the following antemortem injuries on his person :- (Injuries omitted-Ed.) On internal examination he had found that there was comminuted fracture of the left temporal bone and fissured fracture of the left parietal bone under injuries 1 to 4. The fissure was 4" long. Dura mater was torn off and middle meningeal artery on left side was ruptured. Clotted blood was found preseDt between the skull and duramates about 4 oz. in quantity. The Injuries in his opinion were sufficient in the ordinary course of nature to cause death. 7. THE first question is whether the: appellant was responsible for causing these injuries which resulted in the death of Pyarey. Clotted blood was found preseDt between the skull and duramates about 4 oz. in quantity. The Injuries in his opinion were sufficient in the ordinary course of nature to cause death. 7. THE first question is whether the: appellant was responsible for causing these injuries which resulted in the death of Pyarey. No prior motive was alleged by the prosecution. THEre were rathen said to be cordial relations between them. THE incident appeared to have taken place due to the appellant's feeling annoyed by the action of the deceased,, who was Pasi by caste, easing himself im his Khandahar just close to the house, Such a thing is thus quite probable. Onseeing a person easing himself in his Khandahar at that time of the day, one may get angry and punish the wrong doer by giving him blows by any weapon which he had at that time with him. 8. THE prosecution in support off its case examined four eye witnesses of the occurrence. PW 1 Rami Bhawan PW 2 Shiv Darshan, PW J Brindaban and PW 4 Matai. Rant Bhawan (PW 1) has stated that he was sitting at the door of his house when he heard the cries of his father. A little before his father had gone to ease himself and in view of the urgency of the same, he had gone to the Khandahar of! the appellant. He stood up and saw that his father was being given Sota blows by the appellant. He, therefore, rushed along with other witnesses. Id may, however, be said that so far as this part of the statement of Ram Bhawan, that he saw assault from his door is concerned that does not appear to be correct. From the door of his house which waz to the south, the Khandahar could not be visible. He may, however, come a little later to the north from that place and then he could have seen the same incident. It has also come in his statement that the walls of the Khandahar were so high that a person could not see the inside things while walking outside the same. This appears to be different from his earlier statement in examination- in-chief where he stated that boundary walls of the Khandahar were one and half hands high. It has also come in his statement that the walls of the Khandahar were so high that a person could not see the inside things while walking outside the same. This appears to be different from his earlier statement in examination- in-chief where he stated that boundary walls of the Khandahar were one and half hands high. THE investigating Officer in the site plan had also found the eastern wall of Khandahar to be only two and a half to three feet high. He found southern wall to have fallen. So the walls of this Khandahar could not be so high as to block the view of the person coming from the southern side. Arjun Singh (DW i), father of the appellant, in his statement had stated that the Ahata, which was near his house had boundary walls upto 4'-5" high. He had, however, not specified whether he referred to Ahata to the east or to the south. There are two Khandahars- one on the east, where the incident took place, and the other on the south. Hence the description given by the Investigation Officer about the wall can- not be said to be disputed by even the father of the appellant. Therefore,, it was quite easy for the witness to have seen the occurrence taking place inside the Khandahar while coming from the southern side. The evidence of this witness is corroborated by the fact that in the FIR lodged by him soon after the incident he had specifically named the appellant. It has already been pointed out that there was no enmity between the appellant and him and so he could not have falsely implicated him. In any case there was no question for him to spare the real assailant and implicate the appellant. 9. PW 2 Shiv Darshan had a house about 20 to 25 paces to the south of the Khandahar in question as shown in the site plan, a few paces to the south-east of the house of the complainant. He stated that he was giving fodder to his buffaloes at the door. He had seen the appellant going towards Khandahar with his Sota in his hand and then he had also seen giving blows to Pyarey who had gone to ease himself in that Khandahar. He stated that he was giving fodder to his buffaloes at the door. He had seen the appellant going towards Khandahar with his Sota in his hand and then he had also seen giving blows to Pyarey who had gone to ease himself in that Khandahar. Then on the cries of Pyarey he and others rushed to the scene and reprimanded the appellant The witness was alleged to be hostile to the appellant. It is admitted that this witness was a Chaukidar of the village school of which one Ram Prasad Shukul is the Manager, and Kr. Harnarain Singh was the President of the school committee. Both Ram Prasad Shukul and Kr. Harnarain Singh were said to be inimical to the appellant's father. It was said that Ram Prasad Shukul had given evidence against Arjun Singh in a partition case about eleven years ago. As regards Arjun Singh it is admitted by the witness himself that there were two parties of Thakurs which were on litigation with each other. That, however, would be no reason to hold that this witness was inimical to the appellant. It was, however, alleged in the trial court by DW 1 Arjun Singh that Sheo Darshan (PW 2) had given evidence under the pressure of the Manager and Kunwar Saheb but that was only his impression and for that no report had been made by him to that effect. It has also come in evidence that Ram Prasad, brother of this witness had constructed a wall in the village. He had given a feast in that connection and invited all Thakurs. Kr. Harnarain Singh had . attended that party. It is stated by Arjun Singh that he did not attend that feast and so also the witness had felt his absence. However, it had taken place several years ago and it is not acceptable that he would depose against the appellant on account of that boycott even if it was so. So the witness was quite independent. 10. IT was also alleged in the trial court that the duty of this Chaukidar was from 7 P. M. till 7 A. M. in the morning. So he could not come in time during this incident. So the witness was quite independent. 10. IT was also alleged in the trial court that the duty of this Chaukidar was from 7 P. M. till 7 A. M. in the morning. So he could not come in time during this incident. The witness has, however, stated that he did not come home by seeing watch and so he could come home near about sunrise The witness had also an opportunity to see the incident. As already discussed the Khandahar was visible from outside so even though he might be inside the house for a temporary period while giving the fodder, he could easily see outside on hearing the cries as to what was happening. So his evidence was believable. 11. PW 3 is Brindaban. His house is just adjacent to the house of Shiv Darshan (PW 2). He was doing Datoon at his door when he saw the incident. He had also seen the deceased going to the Khandahar and also the appellant going after sometime with Sota. He also saw the appellant giving blows to Pyarey when he was easing. Further on his cries he along with other witnesses rushed to the Khandahar. This witness was alleged to be hostile to the appellant because of a dispute between the appellant's father and his sister Smt. Sujans. Arjun Singh (DW 1) had stated about that dispute and had also stated about his filing a report at the police station on 1-2-68 (Ext Kha-1) under Section 506, IPC. He had also made a complaint dated 7-2- 68 (Ext Kha-2) to the Supreintendent of Police. The witness stated that he lived separately from his sister and he was not concerned with the dispute between the two. However, it may be accepted that the: witness could be supporting his sister, but any way no action was taken by the police and so it cannot be said that on account of these reports the witness would be hostile to the appellant to such an extent that he would help Ram Bhawan to implicate his son falsely. 12. HIS presence was quite natural and probable and being near the scene of incident he was also in a position to see: the same. Thus his evidence was also believable. The last witness is Matai (PW 4). 12. HIS presence was quite natural and probable and being near the scene of incident he was also in a position to see: the same. Thus his evidence was also believable. The last witness is Matai (PW 4). He is servant of Bhagwati Prasad whose house is just to the north of the Khandahar in question about ten paces from there. He was giving fodder to the bullocks of Bhagwati Prasad when he heard the cries of deceased Pyarey. So he rushed and saw the appellant giving blows to the deceased. The witness is also independent. The only ground against him taken in the lower court was that he belonged to the same caste as Ram Bhavan complainant and that his master Bhagwati Prasad was on inimical terms with Arjun Singh, father of the appellant. This mere fact that he was of the caste of the complainant would, however, be no ground to discredit him. As regards Bhagwati Prasad, Arjun Singh (DW 1), father of the appellant had stated that Ram Ratan, who was brother- in-law of Bhagwati Prasad, had given evidence against him in a partition case about ten years ago. According to this witness Ram Ratan is brother of Mahadeo who is brother-in-law of Bhagwati Prasad. Even if it be accepted that evidence was given by Ram Ratan against appellant's father, it is too remote to show that Bhagwati Prasad was inimical to the appellant. 13. THE witness had, no doubt, admitted that his father worked as ploughman with the appellant's father about four years prior to the incident. He died about two and a half years back. Arjun Singh (Dw 1; stated that he had turned out the father of this witness because he had committed a theft of his articles. THEre was, however, nothing to corroborate this allegation. THE witness denied that fact. So the witness cannot be said to be inimical to the appellant in any way. It was then also stated by Arjun Singh (DW 1) that Bhagwati Prasad was sales man of the brick-kiln of Kr. Harnaram Singh with whom he was not on good terms. This fact was not put to this witness in cross-examination. In any case it cannot be expected that because of that fact he would depose against the appellant. 14. It was then also stated by Arjun Singh (DW 1) that Bhagwati Prasad was sales man of the brick-kiln of Kr. Harnaram Singh with whom he was not on good terms. This fact was not put to this witness in cross-examination. In any case it cannot be expected that because of that fact he would depose against the appellant. 14. IT is said that the enclosure of the house of Bhagwati Prasad was about 6 to 7 feet high and so he could not have seen the incident from inside the boundary. That is true but on hearing the cries he could have easily seen as soon as he came out of the enclosure. Thus, all the four witnesses could see the incident. Their presence was natural and probable. They had no inimical relations with the appellant or his father. Their evidence was, therefore, rightly believed by the trial court. 15. THE next question is as to what offence was made out against the appellant. It was urged in the trial court that the offence was under Section 304 Part II because the injuries were caused by a small Danda and the appellant could not be said to have any intention to kill. He also could not be said to have any intention to cause such injuriee as were sufficient in the ordinary course of nature to cause death. At the most he could be said to have caused such injuries which were likely to cause death. 16. THIS is true that the appellant had no intention to commit the murder of the deceased. There was no motive for him to do the same. The question whether it was a murder or culpable homicide not amounting to murder would depend upon whether clause (3) of Section 300 IPC applies to this case or not. As has been held in the recent two cases by the Supreme Court in Jayaraj v. The State of Tamil Nadu, AIR 1976 SC 1519 and State of Andhra Pradesh v. Rayayarapu Punnayya, AIR 1977 SC 45 , the question of application of Section 304 would arise only after it is shown that the case is not covered by any of the four clauses of Section 300, IPC or its execution. The scope of clause (3) of Section 300, IPC has been explained by the Supreme Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465 and also in the latest case in State of Andhra Pradesh v. Rayavarapu Punnayya, and another (supra). In the latter case their Lordships had pointed out the following two points for consideration of this point (para-33) :- (1) Whether the bodily injuries found on the deceased were intentionally inflicted by the accused ? (2) If so, were they sufficient in the ordinary course of nature to cause death? 17. THE second point is clearly proved in this case. Dr. Srivastava was clearly of the view that the injuries were sufficient in the ordinary course of nature to cause death. THE question is whether the injuries were intentionally inflicted or whether they were caused accidentally. It was quite besides the point whether the offender intended causing death or whether he had subjective knowledge of the consequences of his act vide Rajwan Singh v. State of Kerala, AIR 1966 SC 1874 para-11. 18. WHETHER the injuries in question, which proved sufficient in the ordinary course of nature to cause death, were caused intentionally or accidentally is for the assailant to explain. Of course in the absence of his explanation the circumstances can also be seen to find out the same. Ordinarily as held in Jagan v. The State, 1962 (2) CrLJ 641 once the existence of an injury is proved, the intention to cause that injury will be presumed. In the present case the appellant had given no explanation on this point. He had rather denied to have taken any part in causing this injury. So it has to be seen whether the circumstances are such as would show that he had no such intention to cause these injuries. Only two circumstances are relevant in this connection. One is that injury is being caused by Sota and the other is that there was no prior motive. Motive is however not relevant in this connection. Similarly tne fact that he had a . small Sota was also of no avail. It is the nature of the injuries that has to be seen. Out of the injuries inflicted on the body of the deceased, three were on head region and one was on the left cheek. Motive is however not relevant in this connection. Similarly tne fact that he had a . small Sota was also of no avail. It is the nature of the injuries that has to be seen. Out of the injuries inflicted on the body of the deceased, three were on head region and one was on the left cheek. So it cannot be said that the assailant did not intend to cause injuries in the head region. The blows were inflicted with quite a great force. The doctor had stated that the comminuted fracture, of left temporal bone and fissured fracture of left parietal bone under injuries 1 to 4 could not have been caused except when the injuries were inflicted with great force. So the injuries which were proved to be sufficient in the ordinary course of nature to cause death were intentional and could not be said to be accidental. Therefore, the case was covered clearly be clause (3) of Section 300, IPC. It -has then to be seen whether it was covered by any of the Exceptions. In the trial court only Exception No. (sic) was argued that the action was taken under grave and sudden provocation but it was not accepted and we also agree that it was not a case of grave provocation though it may be a sudden provocation The second exception may be some what relevant. It may be argued that the deceased had committed criminal trespass as he entered upon the property of the appellant with intent to annoy him and so he got right of private defence of property and all that could be said was that he exceeded that right by causing the death as for such an offence the right did not extend to cause his death. On close scrutiny of the legal position however, this Exception also cannot be said to have been attracted here. This is true that action of the deceased in entering into the Khandahar of the appellant was a trespass. It may also be that the appellant may feel annoyed at the action of the deceased in easing him self in his Khandahar but that fact alone is not enough to construe the offence of criminal trespass. This is true that action of the deceased in entering into the Khandahar of the appellant was a trespass. It may also be that the appellant may feel annoyed at the action of the deceased in easing him self in his Khandahar but that fact alone is not enough to construe the offence of criminal trespass. For this offence, the intention of the offender to annoy, intimidate or insult must be proved It was held in Mathurl v Stare of Punjab, AIR 1964 SO 986 followed also in Rash Behari Chatterjee v. Fagu Shaw, AIR 1970 SC 20 :- "The correct position in law may, in our opinion be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry ; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the person entering that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the court has to consider all the relevant circumstances including the [presence of knowledge that its natural consequence would be such annoyance, [intimidation or insult and including also the probability of something also than [the causing of such intimidation, insult, or annoyance, being the dominant intension which prompted the entry." 19. THUS, the main thing in this Bontention is what was the aim of the deceased in entering upon this property. The aim could not be said to be to annoy but was only to ease himself. But for want of time he could not go outside the village. THUS, it was not a case of criminal trespass. As such the appellant had no right of self defence of property at all. Hence Exception II also does not apply. No other exception is applicable. Therefore, the offence was clearly of murder under clause (3) of Section 300, IPC, and he was rightly convicted and sentenced for the same. 20. IN the result the appeal fails and is dismissed. The appellant is on bail. He may be taken into custody forthwith to serve out the sentence. No other exception is applicable. Therefore, the offence was clearly of murder under clause (3) of Section 300, IPC, and he was rightly convicted and sentenced for the same. 20. IN the result the appeal fails and is dismissed. The appellant is on bail. He may be taken into custody forthwith to serve out the sentence. The Chief Judicial Magistrate will send compliance report within six weeks from the date of this order. Appeal dismissed.