JUDGMENT 1. - The appellant Jagdish has been convicted under section 302 Indian Penal Code and has been sentenced to imprisonment for life by the learned Additional Judgment final Sessions Judge No. 1. Hanumangarh, by judgment dated 13.2.78. 2. The prosecution case in brief is that one Krishna Ram had prosecuted Dulichand, the informant, Mohan, Chanan Ram, Jeetu and his son Ramswaroop for the assault of his sons Balla Ram and Likhmi Ram. Ram chandra s/o Moonga Ram was a witness in that case for the complainant Kishha Ram and since the date of the alleged assault, Balls Ram & Likhi Ram had entertained grudge against Dulichand and his brother Poonam (deceased). It is said that on 31-3. 77, at about 8 or 8 30 p.m., the deceased Poonamchand was returning from the market after disposing of the shoes and when he passed in front of the house of Ramchandra s/o Moongaram, Ramchandra is said to have exhorted to his son Jagdish, Balla Ram, Likhmi Ram and Gopi Ram that Poonamchand is going, he may be done away with. Thereupon, all the five accused persons surrounded Poonamchand and started beating him with slaps and fists. The accused Jagdish is said to be having a rampa (leather cutting instrument) in his hand. The accused Jagdish trusted 'rampa' in the abdomen of Poonamchand, where by Poonanchand sat down The occurrence is said to have been witnessed by another Jagdish s/o Ramchandra Bhianiwala PW 1, Bit bat PW 2, Ramchandra s/o Khubaram. The prosecution case further is that Dulichand, the brother of the deceased-Ramchandra was behind the deceased at some distance. Be too had witnessed the occurrence. He immediately rushed to the scene of occurrence and it is said that when the deceased was about to fall, he was lifted by Dulichand and these witnesses and was carried rear in front of the house of the witness, where a cot was brought from the house of the deceased and the deceased-was carried on that cot to the hospital. Dulichand then went to the police station Bhadra and lodged the report at 9 p.m. On their report, were under section 307, 147, 148 & 149 Indian Penal Code was registered. Poonamchand succumbed to the injury at about 1 p.m. Thereupon, the case was (coveted to, section 302 IPC. Dulichand then went to the police station Bhadra and lodged the report at 9 p.m. On their report, were under section 307, 147, 148 & 149 Indian Penal Code was registered. Poonamchand succumbed to the injury at about 1 p.m. Thereupon, the case was (coveted to, section 302 IPC. The police interrogated the witnesses the same night and in the morning, the police visited the spot and prepared the site plan Ex. P 2 and conducted the spot investigation. The witnesses Jagdish and Bitbai were further interrogated on 12-4-77 and thereafter, their statements were further got recorded under section 164, Cr. PC on 14.4.77. After investigation, the police found that Likhmaram and Ballaram were not present at the scene of occurrence, so, a final report was submitted, so far as these two accused persons are concerned but the learned Magistrate took cognizance against them and thereafter, committed all the accused persons for trial The accused Jagdish was charged for the offence under section 148 & 302 Indian Penal Code and the other accused persona were charged for the offence under section 302 read with section 149 Indian Penal Code and for other offences. 3. The prosecution examined the eye-witnesses Jagdish PW 1 Birbal PW 2, Dulichand PW 3 and further examined Jaipal Singh PW 4, Chanandas PW 5, Dr. Jagdish Prasad PW 6, Sujan Singh, Investigating Officer, PW 7, Swaroop Singh PW 8. 4. The statement of the accused was recorded under section 313, Cr. PC, in which he denied the prosecution case and stated that he was sitting near his house. The deceased Poonamchand came drunk and started hurling bulgar abuses to him to which he protested. Thereupon, be told him that in case, his father will give evidence against Dulichand and Chanan, it will not be good. He was asked to tell his father. Thereafter, the deceased slapped him 2-3 times. The deceased then ran away on raising of alarm by him. Soon after he ran away, he fell down on the road. There was a bottle of liquor in the fold of his 'dhoti' beneath the shirt and as a result there of, he sustained an injury with the broken bottle. There was none present at that time. No evidence was led in defence. 5. Soon after he ran away, he fell down on the road. There was a bottle of liquor in the fold of his 'dhoti' beneath the shirt and as a result there of, he sustained an injury with the broken bottle. There was none present at that time. No evidence was led in defence. 5. The learned Additional Sessions Judge after hearing the arguments found that Likhmaram and Billararn were not present at the time of occurrence so both of them were acquitted. He further acquitted the other accused persons of the offence under section 148 Indian Penal Code and also acquitted Ramchandra and Gopiram of the offence under section 302 read with section 149 IPC. He however' convicted the appellant under section 302 IPC. He also convicted the other two accused persons for the offence under section 323 Indian Penal Code and further convicted Ramchandra for the offence under section 323 & 324 read with section 109, IPC. Both Ramchandra and Gopi Ram were sentenced to the period of their custody and they did not prefer any appeal against their conviction. Dissatisfied with the conviction and sentence, Jagdish has preferred this appeal. 6. We have heard Shri B.R. Arora, counsel for the appellant and Shri N.S. Acharya, Public Prosecutor for the State. 7. On merits of the case, Shri Arora contended that Dulichand was not a witness to the occurrence as his presence is not established beyond all reasonable doubt. He is the brother of the deceased and is a cooked up witness. He submitted that his presence is not admitted by the other two witnesses. The presence of PW 3 is further rendered highly doubtful looking to the circumstances of the case and conduct of this witness It was pointed out that if Dulichand would have arrived at the scene of occurrence, he would have certainly been dealt with by the assailants as in fact, it was he who was being prosecuted and not his brother Poonam. His conduct as deposed by him rather clearly brings out that he was not present at the scene of occurrence. In case, he has lifted his brother, he would have sustained some blood stains on his clothes. The learned Public Prosecutor, on the other hand hand, submitted that soon after the occurrence, it was Dulichand who lodged the report at 9 p.m. at the police station. In case, he has lifted his brother, he would have sustained some blood stains on his clothes. The learned Public Prosecutor, on the other hand hand, submitted that soon after the occurrence, it was Dulichand who lodged the report at 9 p.m. at the police station. There was no time for him to construct a story and from the prompt First Information Report lodged by him, it would be clear that in fact, the occurrence was witnessed by him. It was also urged that a detailed First Information Report was lodged, which indicates that Dulichand was present at the time of the occurrence. 8. We have considered the arguments advanced before us and we have also scrutinised the evidence of Dulichand PW 3 and Jaglish PW 1 and birbal PW 2. On scrutiny of their evidence, in our opinion, presence of Dulichand at the time of the occurrence is highly doubtful. According to Dulichand Puonam was proceeding ahead of him at a distance of about 5-7 paundas but he gave no call to his brother Poonam nor both of them had any talk. According to Dulichand, Poonam Chand was proceeding in his own way unmindful of his surrounding. Dulichand further, stated that Ram Chandra exhorted, even then he did not tell anything to the accused persons but when he reached near the deceased then they were beating him. Then he asked the accused person as to why they were giving beating. He states that none of the accused proceeded to beat him and he did not run away from the scene of occurrence. He also stated that the accused persons did not tell him anything nor they took notice of him. The manner in which Dulichand & the assailants are said to have behaved with each other only indicate that in fact, Dulichand was not present at the scene of occurrence. Had he been present quite near to the deceased, he would have certainly reacted to save his brother & would have intervened in the assault or in any case, his presence would have also been taken notice of by the assailants and they wold have belaboured him. There was no direct grudge against Poonam. The real grudge was against Dulichand. The assailants in no circumstance would have spared him as it was he who was responsible for having assaulted Likhmaram and Ballaram, along with others. There was no direct grudge against Poonam. The real grudge was against Dulichand. The assailants in no circumstance would have spared him as it was he who was responsible for having assaulted Likhmaram and Ballaram, along with others. His conduct and the conduct of the assailants cannot be taken to be natural. Thus, the conduct inter se Dulichand and the assailants as deposed by Dulichand renders the presence of Dulichand highly doubtful. Further, Dulichand's statement is to be viewed in the light of the statements of Jagdish & Birbal. The presence of Dulichand was not stated by Jagdish in his previous statement Ex. D1 dated 12-4-77 and Ex. D2 dated 14.4.77. Further, Birbal in cross-examination stated that he did not mention the name of Dulichand in his statement Ex. D6 under section 164, Cr. PC, as Dulichand was not present. The presence of Dulichand is also not recorded in his police statement Ex. D4 dated 12.4.77. On being confronted as to how his presence was not recorded in Ex. D4, he stated that he does not know. With regard to the presence of Dulichand, a question was put by the Court in re-examination and in answer to that question, the witness deposed that Dulichand was not with them. Thus, considering the statements of these witnesses as well, presence of Dulichand is not established at the time of occurrence, though it appears that the presence of Dulichand is admitted by these witnesses in their first police statement recorded on 31-3-77,but they did not adhere to it in their subsequent statements. In any case, in the light of the Court statement of Birbal and the previous statement of these witnesses, presence of Dulichand is not established beyond doubt and as considered above, the conduct of the witness Dulichand further makes his presence doubtful. Simply because the First Information Report is lodged by him at 9 p.m. it cannot be taken that he is a truthful witness and was present at the time of occurrence. It may be stated that even Birbal did not support Dulichand with regard to his presence and Birbal was none else than the brother of Mohan and Chanan Ram, who were accused along with Dulichand in the criminal case instituted by Krishnaram. It may be stated that even Birbal did not support Dulichand with regard to his presence and Birbal was none else than the brother of Mohan and Chanan Ram, who were accused along with Dulichand in the criminal case instituted by Krishnaram. Thus, in our opinion no reliance can be placed on the testimony of Dulichand and his testimony cannot be pressed into service in order to connect the accused with the commission of the offence. 9. As regards the testimony of Jagdish and Birbal, Shri B.R. Arora, learned counsel for the appellant submitted that the testimony of these two witnesses is not worthy of credence as these two witnesses have deposed that they left out the names of Likhmaram and Ballaram on subsequent interrogation by the police and also in their statement under section 164 Cr. PC at the instance of the police. When these witnessed can change their statements on being asked or coerced to do so under the influence of the police, no reliance should be placed on their testimony. Shri Arora urged that the order eye-witness Ramchandra s/o Khubaram has not been examined. These witnesses too have not received any blood stains on their clothes and further their testimony is to be judged from this aspect as well that no blood was found at the place where alleged beating is said to have taken place. We have examined these contentions, but we do not find force in them. These witnesses have been consistent throughout so far as the opening of the assault by Ramchandra and Gopi and thrusting of 'rampa' by the assailant Jagdish, is concerned. The occurrence has taken place at about 8 or 8 30 p.m. The houses of these witnesses are situated near the scene of occurrence. The presence of these witnesses appears to be natural near the scene of occurrence. According to Birbal PW 2, he was sitting on a cot in front of the house of Ramchandra s/o Khubaram witness. Close to the house of this Ramchandra, there is the house of Poonamchand s/o Choturam and occurrence has taken place in front of the house of Poonamchand s/o Choturam. When the deceased Poonam Chand s/o Kaburam was passing through that way, Ramchandra and others surrounded him and beat him. Close to the house of this Ramchandra, there is the house of Poonamchand s/o Choturam and occurrence has taken place in front of the house of Poonamchand s/o Choturam. When the deceased Poonam Chand s/o Kaburam was passing through that way, Ramchandra and others surrounded him and beat him. Birbal's house is situated rear the house of Poonamchand and there is a brick road in between the house of Poonamchand s/o Choturam and that of Birbal. The house of Jagdish is also situated near the scene of occurrence, which is in front of the house of Ramchandra s/o Khubaram further Jagdish was coming front toward the house of Manaram. Thus, "considering" the situation of the houses of Jagdish and Birbal, the presence of these two witnesses at the time of occurrence cannot be doubted. Their names were disclosed in the First Information Report which is they earliest version of the occurrence. As regards the 'part' played by the assailants, the statements of these witnesses appeal to be truthful and Credible. According to the them they have observed "rampa" in the hand of the assailant, Jagdish and they have further observed that Jagdish thrusted 'rampa' in the abdomen of the deceased On account of non-mention of the names of Litharam and Ballaram in their statements dated 12-4-77 and 11-4-77 and having given out these statements at the instance of police', their testimony, in our opinion, as regards the assailant cannot be disbelieved. The core and substratum of the prosecution case is that the assailant who have a thrust with 'rampa' in the abdomen of the deceased and this case of the prosecution is is no way shaken by the testimony of those who witnesses. These witnesses may not be wholly reliable but on account of some infirmities in their statements, whole of their statement cannot be discarded and their testimony cannot be rendered wholly reliable. The testimony of these witness further gets corroboration from the recovery of ramps' stained with human blood at the instance of the appellants in pursuance of his information. The recovery of 'rampa' stained with human blood tends complete assurance to the truthful character of the testimony of Jagdish and Birbal as regards the core or substratum of the prosecution case. The testimony of these witness further gets corroboration from the recovery of ramps' stained with human blood at the instance of the appellants in pursuance of his information. The recovery of 'rampa' stained with human blood tends complete assurance to the truthful character of the testimony of Jagdish and Birbal as regards the core or substratum of the prosecution case. Shri Arora contended that the recovery evidence in this case is not is not satisfactory, the only motbir of recovery who has been examined in this case is 'Chanandas PW 5' who was one of the accused in the case instituted by Kishnaram'. He is not an independent and respectable witness. It was also contended that that the witness has stated in examination-in-chief that there was nothing on 'rampa' thought be identified 'rampa' article (1) in court. The witness deposed about the presence of blood only when the recovery Ex. P. 13 was read over to him which contained a fact that it was blood stained. As regard the recovery of 'rampa' in our opinion, the evidence of "Sujan Singh, 10 PW 7 alone is sufficient Sujan Singh his proved Ex. P 18 and he has further proved the recovery of 'rampa' at the instance of the accused 'Jagdish'. The statement of chanandas as regards the recovery as well cannot be brushed aside simply on the ground that he was the accused in the case instituted by Kishanram. When Ex.P. 13 was read over to him, he recollected the presence of blood on it and on that basis could depose that 'rampa' was having blood stains. Even if the statement of Chandandas is ignored still there is no reason to disbelieve the evidence of PW 7 Sujan Singh. From the statement in our opinion, it is amply proved that the accused gave the information and got the 'rampa' recovered having blood stains. There is further evidence of sujan Singh that 'rampa' was packed and sealed at the spot. This aspect of the case has not been challenged before us that seat on the packet of 'rampa' remained intact till it was delivered to the State Forensic Science Laboratory Ex.P. 2 is the report of the Director, State Forensic Science Laboratory which shows that blood was detected on 'rampa' and the serologist's report Ex. P. 21 shows that human blood was detected on 'rampa'. P. 21 shows that human blood was detected on 'rampa'. Thus this corroborative evidence further connects the accused with the commission of the offence and on the basis of the ocular evidence and the corroborative evidence there is no escape from the conclusion that the appellant cause the injury on the person of Poonam which proved to be fatal. 10. Shri Arora also contended the probability of a occurrence having taken place as alleged by the defence is not out of place in view of the medical evidence. PW 6 has stated that the Injury No. (1) can be caused by the sharp edged of a broken glass bottle and injury No. (2) i.e. five abrasions around the main injury could be received by the broken pieces of glass or by friction of edges of the weapon. This contention, in our opinion, has absolutely no merit and deserves to be rejected. The defence theory appears to be false. Had there been any truth in this theory, broken bottle or glass pieces would have been found at the spot or in the wounds or clothes of the deceased or spilt liquor or clothes of the deceased smeared with liquor would have been found. Thus, considering the circumstances, the defence version does not appear to be true even probable. 11. Shri Arora next contended that the occurrence in this case took place at the spur of the moment, there was no premeditation and there was no motive commensurate with the alleged offence and in the circumstances of the case, it cannot be said that the accused intended to inflict the injury is sustained by the deceased, which is sufficient in the ordinary course of nature cause death as stated by the Medical Officer, Jagdish Prasad PW 6. He urged that no such intention in the circumstances can be attributed to the appellant that he intended to inflict this injury. He urged that the offence in any case does not travel beyond section 304, Part II, IPC. In support of his contention, Shri Arora placed reliance on a decision of the Supreme Court in Shanker v. State of Madhya Pradesh ( AIR 1979 SC 1532 ) . 12. He urged that the offence in any case does not travel beyond section 304, Part II, IPC. In support of his contention, Shri Arora placed reliance on a decision of the Supreme Court in Shanker v. State of Madhya Pradesh ( AIR 1979 SC 1532 ) . 12. Shri Acharya, on the other hand, urged that though 'rampa' has been used as a weapon of offence, which is used for cutting leather but the accused has used it on the skin of Poonam, deceased. According to the Medical Officer, the injured Poonam was examined at 8.50 p.m. He found one big incised wound 31/2" x 2" deep opening into the peritoneum on the left side of abdomen and small and large intestines were coming out of the wound and at the time of post-mortem examination, the small intestines were found ruptured at four places. Shri Acharya urged that 'rampa' was thrusted with much force that internal vital organs were cut and ruptured. The requisite intention can be inferred from the manner, in which the injury is caused. In support of his contention, he placed reliance on Virsa Singh v. State of Punjab ( AIR 1958 SC 465 ) , State of Andhra Pradesh v. Reyavorapu Punnaya and another, ( AIR 1977 SC 45 ) & Morcha v. State of Rajasthan ( AIR 1979 SC 80 ) . We have bestowed our anxious consideration to the most important aspect of the case. In the circumstances of the case, it cannot be denied that there was no pre-planning and pre-meditation. The occurrence took place suddenly at the spur of moment. There was no repetition on the part of the assailant. The weapon of offence in the present case is normally not so used. Further, there was no motive with the assailant or his father Ramchandra against the deceased. The question as to whether the assailant intended to inflict injury No (1) on the person of the deceased is a question of fact. Considering the attending and surrounding circumstances, it cannot be safely and without any hesitation be inferred that the accused Jagdish intended to inflict the injury it question. It is true that the injury inflicted is a serious injury, which is sufficient in the ordinary course of nature to cause death, but in our opinion, the subjective test is not satisfied in the present case. It is true that the injury inflicted is a serious injury, which is sufficient in the ordinary course of nature to cause death, but in our opinion, the subjective test is not satisfied in the present case. The cases relied upon by Shri Acharya, in our opinion, are distinguishable on facts. From the circumstance of these cases, necessary animus was inferred so as to cover the cases under clause thirdly of section 302 Indian Penal Code is not proved beyond all reasonable doubt in the circumstances of the case and the case can only fall under section 304 Part II Indian Penal Code, In Shankar's case, the accused caused an injury on the neck of the deceased with a dagger and the occurrence took place without any premeditation as the deceased along with the accused and others had just finished their meals. In the circumstances, their Lordships of the Supreme Court observed that the assailant had no intention to cause the particular injury that he caused to the deceased with the dagger and is was observed that the assailant must be deemed to have knowledge that death may be caused by that and held that the case squarely falls within the ambit of section 304 Part II, Indian Penal Code and the conviction of the assailant was altered from one under Section 302 to that of Section 304, Part II. In of what we have discussed above, in our considered opinion the conviction of the appellant under section 302 cannot be sustained and we alter his conviction from section 302 to section 304, Part II, IPC. 13. Coming to the question of sentence, it is urged by Shri Arora that the appellant is a young man of 27 years and he is in custody since 4.4.1977. He has already suffered custody for 2st years as an under trial prisoner and as convict. Sentence to the extent of his period of custody would be adequate in the circumstances of the case. In our opinion, it would not be adequate. Having regard to circumstances of the case four years rigorous imprisonment and a fine of Rs. 2,500/- would meet the ends of justice. 14. According, the appeal is partly allowed, the conviction of the appellant is altered from section 302 to section 304, Part II, Indian Penal Code, and is sentenced to four years rigorous imprisonment and to a fine of Rs. 2,500/- would meet the ends of justice. 14. According, the appeal is partly allowed, the conviction of the appellant is altered from section 302 to section 304, Part II, Indian Penal Code, and is sentenced to four years rigorous imprisonment and to a fine of Rs. 2,500/., in default of payment of fine, to undergo further rigorous imprisonment for one year. Fine, if deposited shall be paid to the widow and other heirs of the deceased.Appeal partly allowed. *******