G. K. MATHUR, J. ( 1 ) THIS appeal is directed against the judgment and order dated 30/11/1978 passed by Sri R. K. Gupta, Sessions Judge, Muzaffarnagar, in Sessions Trial No. 246 of 1978 by which the appellant, Asa Ram, has been convicted u/s. 302 of the Penal Code (hereinafter referred to as the IPC) and sentenced to undergo life imprisonment. He has also been convicted for the offence punishable u/s 323 read with S. 34, IPC and sentenced to undergo rigorous imprisonment for a period of nine months. The sentences have been made to run concurrently. Appellant Krishna Pal has been convicted for the offences punishable under S. 326 read with Ss. 34 and 323, IPC and sentenced to undergo rigorous imprisonment for a period of three months and nine months respectively for each count. His sentences have also been made to run concurrently. ( 2 ) THE case of the prosecution has been that at about 12 in the noon on 11/05/1978 Asa Ram, his wife Jaggo and their son Krishna Pal assaulted P. W. 1 Mahichand when he demanded back the amount of loan of Rs. 300/ - and about this incident, Mahichand lodged a report at the police Station Jhinjhana, District Muzaffarnagar. It is alleged that after lodging the report when, Mahichand reached the village and was talking to his father sitting in front of the hut of his father Jainath, at about 7-00 p. m. the same day Asa Ram, armed with spear, and his son Krishna Pal, armed with lathi, came there and started beating him and his father Jainath saying that they would repay the amount of loan and would teach them a lesson for lodging the report. P. W. 2 Sukhbir Singh and P. W. 7 Jugender Singh, according to prosecution, came to the spot on hearing the alarm raised by Mahichand and witnessed the incident in question. Jainath, according to the prosecution, died on the spot. ( 3 ) A written report, scribed by Sukhbir Singh, was lodged at the police station Jhinjhana, district Muzaffarnagar at 9-30 p. m. on 11/05/1978 by Mahichand P. W. 5 Ataul Rehman Rizvi, Head Moharir, on the basis of the aforesaid written report, prepared the check report and made the entry of its substance in the general diary. ( 3 ) A written report, scribed by Sukhbir Singh, was lodged at the police station Jhinjhana, district Muzaffarnagar at 9-30 p. m. on 11/05/1978 by Mahichand P. W. 5 Ataul Rehman Rizvi, Head Moharir, on the basis of the aforesaid written report, prepared the check report and made the entry of its substance in the general diary. P. W 8 Rajendra Singh, Station Officer, in whose presence the report was lodged, made the investigation of the case, reached the place of occurrence in the night; got prepared the inquest report from Sub Inspector Talewar Singh in the following morning and sent the body under sealed cover for post mortem examination through PW6 Brij Pal Singh, constable prepared the site plan and took in possession samples of blood stained and plain earth. It is alleged that Rajendra Singh, Investigating Officer, arrested Asa Ram, appellant, on the main road at a distance of about four furlongs from the place of occurrence. On 12/05/1978 and, at his pointing out, recovered the blood-stained spear from the field of Baljit in the presence of PW2 Siukhbir Singh and P. W. 7 Jogendra Singh and sealed it and prepared the memo of recovery. P. W. 3 Dr. S. P. Garg, Medical Officer, Shamli Dispensary examined the injuries of Mahichand on 12/05/1978 at 1. 00 a. m. He found the following injuries on his person:-1. Lacerated wound 3/4" x 1/6" x scalp deep on left side head, 4-3/4", above the left ear. 2. Lacerated wound 3/4" x 1/ 8" x skin deep on left side head, 2-3/4" above the left eye brow. 3. Contusion 11/4 "x 1/2"over the left cheek, 1/2" below the left eye. 4. Multiple abrasions in the area 1 " x 1 " on front of left arm, in the middle 1/3 rd. 5. Abrasion 1/2" x 1/4" on front of left leg, lower part. ( 4 ) P. W. 4 Dinesh Chand Mobar, Medical Officer, District Hospital, Muzaffarnagar, made the post mortem examination on the body of Jainath on 12/05/1978 at 4. 00 p. m. According to him the deceased was about 70 years of age. He found the following ante mortem injuries on the person of Jainath:-1. Punctured wound 1/2" x 1/2" x abdomen cavity deep on left side abdomen, 3" above umblicus at 1 Oclock position. The wound was directed right to left and upward. Margins were lacerated. 2. 00 p. m. According to him the deceased was about 70 years of age. He found the following ante mortem injuries on the person of Jainath:-1. Punctured wound 1/2" x 1/2" x abdomen cavity deep on left side abdomen, 3" above umblicus at 1 Oclock position. The wound was directed right to left and upward. Margins were lacerated. 2. Punctured wound 1/2" x 1/8" x abdomen cavity deep on right side back. 3" from mid line and 8" from below inferior angle of right scapula. The wound was directed from back to front. Margins were lacerated. 3. Abraded contusion 1/2" x 1/4" on the right side back of head, 5" above from right ear. On internal examination, peritoneum was found punctured under injuries 1 and 2, clotted blood one litre of fluid was found in the cavity. Stomach was empty. Spleen was found punctured under injury No. 1. Right Kidney was also found punctured under injury No. 2. In the opinion of Dr. Mobar, death was due to shock and haemorrhage as a result of injuries sustained by the deceased. ( 5 ) THE prosecution, in all, examined 8 witnesses to prove its case a mention of all of them has come in the narration of the prosecution case. ( 6 ) THE accused person pleaded not guilty. ( 7 ) ASA Ram in his statement recorded under S. 313 of the Criminal P. C. admitted that he had taken Rs. 300/ - as loan from his brother Mahichand. He, however, stated that there had been no marpit between them when Mahichand demanded back the loan and the report made by Mahichand in that regard was false. He has specifically denied the other allegations made against him and has stated that he and his son had been prosecuted clue to enmity and out of local party politics. ( 8 ) KRISHNA Pal in his statement recorded u/s. 313 of the Criminal P. C. stated that he did not know about the taking of loan and that he was not present at the time of the demand of loan as well as at the time of incident in question on the spot. ( 9 ) THE accused persons did not examine any witness in defence. ( 10 ) THE learned trial court found the case proved and convicted and sentenced the appellants as indicated in the opening part of the judgment. ( 9 ) THE accused persons did not examine any witness in defence. ( 10 ) THE learned trial court found the case proved and convicted and sentenced the appellants as indicated in the opening part of the judgment. ( 11 ) FEELING dissatisfied with the order of conviction and sentence, the appellants have preferred this appeal. ( 12 ) HEARD the learned counsel for the appellants and the learned Additional Public Prosecutor and perused the record. ( 13 ) JAINATH, the victim, was the father of Asa Ram, appellant, and grandfather of Krishna Pal. P. W. 1 Mahichand is the real brother of Asa Ram, appellant. ( 14 ) THE learned counsel for the appellants submitted that P. W. 1 Mahichand has disowned the first information report and he and other prosecution witness P. W. 7 Jogender Singh have not supported the prosecution case and were declared hostile by the learned Public Prosecutor in the trial court. He argued that P. W. 2 Sukhbir Singh, relied upon by the court below, is a witness of incident in question, inquest of Jainath and recovery of the blood-stained spear in question. The learned counsel for the appellants argued that Sukhbir Singh also come in the category of a chance witness and was inimical due to group of party politics. ( 15 ) P. W. 1 Mahichand stated that he lodged first information report in respect of the noon incident of the marpit on the question of demand of loan from Asa Ram. This fact is not disputed by Asa Ram. It is in the statement of P. W. 1 Mahichand that when he came back after lodging first information report of the noon incident and was sitting in front of the hut of his father, the appellants came there from the side of their house and started beating him and when his father intervened, he happened to fall down on a pegment to tie cow and died instantaneously at about 7. 00 p. m. Dr. Dinesh Chand Mobar, P. W. 4, who made the post mortem examination on the body of Jai Nath, has ruled out the possibility of getting the injury in question by fall on a peg. The explanation given by P. W. 1 Mahichand about the injury of his father Jainath on the face of it is a lame excuse. Dinesh Chand Mobar, P. W. 4, who made the post mortem examination on the body of Jai Nath, has ruled out the possibility of getting the injury in question by fall on a peg. The explanation given by P. W. 1 Mahichand about the injury of his father Jainath on the face of it is a lame excuse. P. W 7 Jugender Singh, who has also been declared hostile, came out with the theory that Krishnapal, appellant, had caused the spear blow to Jai Nath. It appears quite natural that Mahichand, being the real brother of Asa Ram, appellant has denied the version and disowned the first information report of the incident in question. P. W. 2 Sukhbir Singh has stated on oath that he scribed the first information report at the dictation of Mahichand. According to P. W. 7 Jugender, P. W. 2 Sukhbir Singh was present on the spot at the time of the incident in question. P. W. 5 Ataul Rahman Rizvi, Head-moharir, has stated on oath that Mahichand came to the police station along with the village Chaukidar Badloo and lodged the written report exhibit Ka-1. The contention of Mahichand that he did not go to the police station at all to lodge the report of the incident in question and that his thumb impressions were obtained by the Sub Inspector of Police on some paper and that he could not say what was written on it, in the face of the above discussed evidence, cannot be accepted as correct. For the reasons given above, we hold that the first information report was, in fact, lodged by Mahichand and, in this view of the matter, no adverse inference can be drawn against the prosecution as has been argued by the learned counsel for the appellant. ( 16 ) P. W. 2 Sukhbir Singh is not a resident of neighbourhood of the spot in question and he happened to be present at the time of the incident in question, as he was a returning back to his house from his fields. He has scribed the first information report on the dictation of Mahichand on the spot. His presence on the spot is admitted to be hostile witness P. W. 7 Jugender, as stated above at the time of incident in question. He has scribed the first information report on the dictation of Mahichand on the spot. His presence on the spot is admitted to be hostile witness P. W. 7 Jugender, as stated above at the time of incident in question. The circumstance, that Sukhbir Singh happened to be a witness of inquest and also of recovery of spear cannot be regarded a ground to reject his testimony about the incident in question under the circumstances of the case. He has fully supported the case of the prosecution about the actual incident in question. He has denied the suggestion put to him in cross-examination, that due to party politics he harboured any enmity with Asa Ram. There is, therefore, no reason to disbelieve his statement on the incident, which took place at about 7. 00 p. m. in which Jai Nath has been done to death. ( 17 ) THE prosecution witnesses on the point of recovery of blood-stained spears are no doubt, not consistent. According to P. W. 8 Rajendra Singh, Investigating Officer, the spear was recovered on the pointing out of Asa Ram from the fieldd of Baljit Singh in the presence of P. W. 2 Sukhbir Singh. P. W. 2 Suhhbir Singh, however, in his statement, stated that it was recovered from the hut of Mahichand situated towards east of the fodder cutting machine. In this view of the matter no reliance can be placed on the point of recovery of spear. ( 18 ) INDEPENDENT of the evidence of recovery of spear, it is established beyond doubt from the circumstances of the case and the statements of the prosecution witnesses that the appellants came to the spot to teach Mahichand a lesson for lodging the report of the Marpit which had taken place in the noon on the question of demand of loan. It is further established that when Jai Nath, the father of Mahichand, intervened, Asa Ram, appellant, caused the spear injury to him and he died on the spot instantaneously, while Mahichand received simple injury caused to him. It is further established that when Jai Nath, the father of Mahichand, intervened, Asa Ram, appellant, caused the spear injury to him and he died on the spot instantaneously, while Mahichand received simple injury caused to him. ( 19 ) THOUGH it has not been argued by the learned counsel for the appellants that the offences in question would only amount to culpable homicide not amounting to murder still we are of the opinion that, from the evidence and circumstances of the case the offence committed by Asa Ram amounted to culpable homicide not amounting to murder. At best, recourse to clause thirdly of S. 300 of the Penal Code could be made to bring the offence in the category of culpable homicide amounting to murder. Clause thirdly of S. 300 of the Indian Penal Code reads as under:"if it is done with the intention of quashing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. " ( 20 ) SUPREME Court in the case of Jai Prakash v. State ( Delhi Administration), (1991) 1 JT (SC) 288, has held that the mere fact that injury caused is sufficient to cause death, it does not necessarily follow that accused intended to cause that injury. Court to ascertain intention from the facts and circumstances of the case. Factors to be considered. " ( 21 ) THE Supreme Court in this case has referred to the case of Virsa Singh, reported in 1958 SCR 1495 , about which it was observed in the case of Jagrup Singh v. State of Haryana, (1981) 3 SCC 616 , that the test laid down in Virsa Singhs case for the applicability of clause thirdly is now ingrained in our legal system and has become part of the rule of law. ( 22 ) IN the case of Jai Prakash (1991 (1) JT (SC) 288) (supra) Supreme Court has deduced that in both the above mentioned cases, namely, Virsa Singh case (1958 Cri LJ 818) (SC) and Jagrup Singhs case (1981) Cri LJ 1136) (SC) "it is clearly laid down that the prosecution must prove (1) that the body injury is present (2) that the injury is sufficient in the ordinary course of nature to cause death (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words the 3rd Clause consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given, facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. ( 23 ) WE have examined the evidence in this case in the light of the test laid down in the aforesaid case of Jai Prakash for the applicability of clause thirdly of S. 300 of the Penal Code. We find that there is no evidence or circumstance on record to prove that Asa Ram, appellant, had the intention to cause that particular injury, which was caused to his father Jai Nath. On the other hand, from the facts available on record the intention to inflict the injury in question is not made out at all. Jai Nath was the father of Asa Ram, appellant, the attack was sudden and on a trivial matter between brothers. We, therefore, hold that the offence in question does not fall in clause thirdly of S. 300 of the Penal Code and is not culpable homicide amounting to murder. However, as the injury has been caused by spear, Asa Ram, appellant, can be attributed with the knowledge that he was likely to cause an injury, which was likely to cause death. However, as the injury has been caused by spear, Asa Ram, appellant, can be attributed with the knowledge that he was likely to cause an injury, which was likely to cause death. Hence, we hold him guilty of culpable homicide not amounting to murder punishable u/s. 304 part II of the Indian Penal Code. ( 24 ) THE appellant, Krishna Pal, gave out his age as 13 years in his statement recorded under S. 313 of the Criminal P. C. while the trial court assessed his age as 15 or 16 years only. There is nothing on record to show that he shared any common intention with his father Asa Ram of causing grievous injury on the incident in question. The attack, as said above, was sudden. In this view of the matter, his conviction under S. 326 read with S. 34 of the Penal Code cannot be maintained. Simple injuries were caused to Mahichand by lathi, as has been discussed above. His conviction u/s. 323 of the Penal Code deserves to be maintained. ( 25 ) THE conviction and sentence of Asa Ram for the offence punishable u/s. 302 of the Penal Code are set aside and instead he is convicted for the offence punishable u/s. 304 part II of the Penal Code. In our opinion, sentence of two years rigorous imprisonment on this count shall meet ends of justice. His conviction for the offence punishable under S. 323 read with S. 34 of the Penal Code is maintained. However, the sentence is reduced to one months rigorous imprisonment only. His sentences shall run concurrently. Conviction and sentence of Krishna Pal u/s. 326 read with S. 34 is set aside. His conviction and sentence for the offence punishable u/s. 323 of the Penal Code is maintained, but the sentence is reduced to one months rigorous imprisonment only. ( 26 ) THE appeal is partly allowed. The conviction and sentences of the appellants are modified to the extent stated above. The appellants are on bail. They be taken into custody forthwith to serve out their respective sentences. Appeal partly allowed. .