JUDGMENT Bhawani Singh, J.—We proceed to decide both these appeals (Cr. Appeal No. 177 of 1990 and Cr. Appeal No. 195 of 1990 by a common judgment since they arise out of the same case. Criminal Appeal 177 of 1990, State of Himachal Pradesh v. Raghubir Singh alias Raghubhushan, has been filed by the State for convicting the accused under section 302 instead of 304-1 of the Indian Penal Code, as done by the trial Court. Criminal Appeal 195 of 1990, Raghubir Singh alias Raghubhushan v. State of H.P., has been filed by the accused against the trial Court judgment dated 24th October, 1989 convicting him under section 304-1 of the Indian Penal Code sentencing him to rigorous imprisonment for six years and to pay fine of Rs. 4,000 and in default of payment of fine, to suffer further imprisonment for one year. Fine, on realisation, has been directed to be paid to the family of the deceased. Facts of the case, now, be narrated briefly. 2. Deceased Raghunath (hereafter the deceased) was a contractor. He was living at Mehroli in Delhi while accused Raghubir Singh (hereafter the accused) is a resident of village Odder in District Kangra, H.P. He was an employee of the deceased. K.R Palaniswami and his wife Aarti were tenants in the premises where the deceased was residing. The deceased was a widower with two children. In his absence from the house, the deceased used to ask Aarti to look-after his children. The relations between K.R. Palaniswami and his wife Aarti were not cordial. She used to visit the house of the deceased in the absence of her husband to look-after the children of the deceased and thereafter started going to his house to watch Television. Soon, the deceased and Aarti developed friendly relations. She would disclose to the deceased the harassment she was meeting at the hands of her husband. Day came, the deceased and Aarti decided to live together. For this purpose they took a vow before the Idol of Shiva. The accused was a visitor at the house of the deceased. Often times, he would spend nights also over there. 3. A plan was settled between the deceased, accused and Aarti that they would elope. Day came, the deceased and Aarti decided to live together. For this purpose they took a vow before the Idol of Shiva. The accused was a visitor at the house of the deceased. Often times, he would spend nights also over there. 3. A plan was settled between the deceased, accused and Aarti that they would elope. In order to avoid detection by police and others, it was settled that the accused would take them to his house in his village Odder where they would remain till the matter cooled down. For three days, Aarti was kept as a mid-servant with Dr. Jain in Delhi and thereafter she was brought lo the Bus Stand by a Taxi where they boarded a bus for Chandigarh. At Chandigarh, certain purchases were made for her. They included a wrist-watch and toilet articles. The accused also made certain purchases for his family. Then, they boarded a bus for Dharamshala and reached there at about 6.33 p. m. on September 26, 1987. The accused told both of them that in order to reach his village, they would have to travel through a Kacha path. They started and after covering some distance, Aarti started getting tired. They met Sant Ram (PW 13) on the way who took them to his village Lanjni situated at a short distance from village Odder. He met them at .7.00 p. m with a torch. He knew the accused and they started talking. They reached the house of Sant Ram where milk was offered to them. Although Sant Ram asked them to stay at his house for the night, yet the accused refused and decided to go to his own village. 4. Accordingly, the three started towards village Odder after leaving their attache-cases at the house of Sant Ram, only taking a few essential items. While going towards village Odder, the deceased was the first in the line and the accused the last, obviously, Aarti was in between them. Accused was holding the torch that had been taken from Sant Ram. When they reached Banoi Khad, the deceased told Aarti that he would disclose some secret to her during the night. No sooner he said that, the accused pounced upon the deceased and caught him by the neck. Both of them rolled down in the Khad. Accused was holding the torch that had been taken from Sant Ram. When they reached Banoi Khad, the deceased told Aarti that he would disclose some secret to her during the night. No sooner he said that, the accused pounced upon the deceased and caught him by the neck. Both of them rolled down in the Khad. The accused picked up a stone and started beating the deceased with it on his head and face. The deceased raised alarm. He requested the accused to spare him so did Aarti. She was frightened and thought that she also would be killed by the accused being a sole eye-witness. She ran away from the place, her San got entangled in the thorny bushes. She left her Sari, Chappal’ in the process of running to safety. Her petty-coat was also torn. She saw light from a distant house. She went towards it and found a house. She knocked at the door crying "Bachao-Bachao". Om Pardeep, owner of the house, opened the door and she narrated the incident to the inmates of the house, namely, Om Pardeep, his mother and his wife. She told them that a man belonging to the area was after her. He had already killed the deceased with stone. Om Pardeep gave her shelter. He offered food to her but she refused to take it. She was given room in the upper storey of the house. Apprehending that the accused may not be after Aarti, he sat guarding the place with his gun. 5. In the morning, he sent his son Jagdish Kumar to the house of A. S. I. Purshottam Chand who was working in the office of Superintendent of Police, Dharamshala at that time. Purshotam Chand reached the house of Om Pardeep who acquainted the former with the facts. Aarti also narrated the incident and told them that on their way they had met a person with torch and all of them had rested at his house and kept the luggage over there. She also gave the description of the house. On this description, Om Pardeep and Purshotam Chand went to the house of Sant Ram They made enquiries from him about the matter and he confirmed that the two males and a female had visited his house after they had met him on the way. She also gave the description of the house. On this description, Om Pardeep and Purshotam Chand went to the house of Sant Ram They made enquiries from him about the matter and he confirmed that the two males and a female had visited his house after they had met him on the way. He disclosed that one of the persons was the accused of village Odder. He also confirmed that these persons had kept their luggage at his house which had been taken by the accused in the morning. Purshotam Chand asked Om Pardeep to take Aarti to the Police Station, however, Om Pardeep informed Purshotam Chand that he had to go to the school to inform the teacher-in-charge. Accordingly, Purshotam Chand asked him to send the accused as the house of the accused happened to be on his way to the school. 6. Om Pardeep found the accused in his house and on being asked whether he knew Aarti, the accused refused to tell anything to Om Pradeep. Om Pardeep told the accused that Purshotam Chand had called him to the office of Superintendent of Police, Kangra. The accused asked Om Pardeep to accompany him. The accused changed his clothes, took a brief-case and alighted a bus for Dharamshala. Reaching there, both of them came to the office of Superintendent of Police. Om Pardeep left the accused with Purshotam Chand and he returned to his village to bring Aarti. He reached his house at about 130 p.m. In the meanwhile, Puran Chand, a labourer working with Om Pardeep, told him that he had found a Sari among bushes, a pair of Chappal and a dead body in the Nallah. He went to the spot alongwith Puran Chand and Aarti. They saw the dead body of the deceased, They took a bus and came to Dharamshala. There, he asked Puran Chand to take Aarti to the office of Superintendent of Police. He himself came to Kotwali Bazar to take Sant Ram, but when he came to the office of Superintendent of Police with Sant Ram, Puran Chand and Aarti were there. Puran Chand was asked about the accused. He informed that the accused had gone to take his meals but did not return. They came to the Police Station and lodged the First Information Report (Ext. PW-11/A). All of them proceeded to the spot. 7. Inquest report (Ext. Puran Chand was asked about the accused. He informed that the accused had gone to take his meals but did not return. They came to the Police Station and lodged the First Information Report (Ext. PW-11/A). All of them proceeded to the spot. 7. Inquest report (Ext. PA) was prepared by the Investigating Officer, S.I. Darshan Singh, Stallion House Officer, Police Station, Dharamshala. Photographs were taken, dead-body was sent for post-mortem examination. The police took into possession various articles which were lying on the spot including Chappal, Sari of Aarti and Chappal’ of the deceased. House of the accused was searched, clothes of the deceased in a briefcase and Aarti were recovered from his house. Blood-stained pent and shirt of the accused were also taken from one of the rooms. 8. Post-mortem examination of the dead body of the deceased was conducted by Dr. Mrs. Shashi Mahajan, Medical Officer, Primary Health Centre, Gopalpur on September 27, 1987. She found sand particles on the clothes worn by the deceased. Sand particles were also found over hair of scalp and hands ; right eye was found swollen with sub-conjunctiva haemorrhage and black eye. Bleeding was found from left eye ear, scalp, right ear and nose. Left eye was distorted with crush injury, upper left eye-lid was crushed with injury to the underlying structures. There was swelling on left side of face, left temporal and parietal region. Multiple fractures were found on left frontal, parietal, temporal, maxillary and nasal bones. There was also fracture of right temporal and parietal bones. Haemetoma formation on the right temporal parietal region was found. Multiple small abrasions on the dorsal aspect of left forearm and right arm, reddish in colour were also discovered. There was a small lacerated wound on the right second toe. Thorax and abdomen were found normal. In the opinion of the Doctor, the death was caused due to head injury (multiple fractures) leading to injury to brain, haemorrhage, shock and ultimately death. The injuries were sufficient to cause death in the ordinary course of nature. 9. After completing the investigation, the accused was challaned for committing murder of the deceased. Charge under section 302 of the Indian Penal Code was accordingly framed against him to which he pleaded not guilty and claimed trial. The injuries were sufficient to cause death in the ordinary course of nature. 9. After completing the investigation, the accused was challaned for committing murder of the deceased. Charge under section 302 of the Indian Penal Code was accordingly framed against him to which he pleaded not guilty and claimed trial. In his explanation under section 313 of the Criminal Procedure Code, he has admitted all the facts except the version of the prosecution about the incident that took place in Banoi Khad where the deceased was killed by him. it would be pertinent to reproduce his answer to question 65. He states : "I am innocent. At the time when we were crossing Banoi Khad at that very minute, deceased told Aarti Devi that he will disclose a secret to her. The deceased even before used to cut filthy jokes with me and used to say that I would present my wife to him. On hearing this, I abused him and scolded him and told him that he should not talk this non-sense. At this the deceased fell upon me and caught hold of me. Finding that he may not kill me, I attempted to extricate myself and gave him a push. The consequent result was that he fell in the nullah with considerable force and I also fell down. It was a night time, so as to extricate myself, I pushed him with a considerable force. He fell with a face towards the ground on the stones. I also fell because the place was slippery and suffered some injuries. So as to save myself, I ran from that place. The place where the deceased fell, the height of the stones from where he fell was 2 to 3’. In the morning, Om Pardeep PW came to my place. I requested him that he should accompany me to Dharamshala. We both reached Dharamshala at 10.30 a. m. to lodge a report. The report was not taken down and rather I was detained by the police. The police thereafter immediately left for the place and returned in the evening at about 6.00 or 7.00 p. m. with Smt. Arti Devi." 10. He also produced Santosh Kumar, Criminal Ahlmad in the office of Chief Judicial Magistrate, Kangra in his defence (DW-1). The report was not taken down and rather I was detained by the police. The police thereafter immediately left for the place and returned in the evening at about 6.00 or 7.00 p. m. with Smt. Arti Devi." 10. He also produced Santosh Kumar, Criminal Ahlmad in the office of Chief Judicial Magistrate, Kangra in his defence (DW-1). In nutshell, his ultimate defence appears to be that he was caught by the deceased and he made efforts to extricate himself from the deceased and in that process he pushed the deceased and both of them rolled down in the Khad. In the process the face of the deceased struck against a big boulder resulting in his death. He also states that it was on account of grave and sudden provocation extended by the deceased stating to Aarti that he would disclose some secret to her during the night that the incident took place, otherwise, he did not intend to cause the death of the deceased. The so-called secret understood by the accused was to be a filthy joke that the accused would present his wife to the deceased. 11. After examining the evidence of the prosecution and the case of the accused, the trial Court came to the conclusion that the version given by Aarti was cogent and convincing, it was corroborated by other witnesses of the prosecution, therefore, it had been proved by the prosecution beyond all reasonable doubts that the deceased had been killed by the accused in Banoi Khad in the manner stated by Aarti. Looking to the explanation of the accused, the trial Court came to the conclusion that the accused had killed the deceased on account of grave and sudden provocation extended to him by the deceased, therefore, he was liable to be convicted and punished under section 304-1, Indian Penal Code. Both the parties have grievance against the impugned judgment, therefore, they have preferred their respective appeals against it. 12. We heard learned Counsel for the parties at length and perused the case file carefully in order to examine whether the impugned judgment is strictly in accordance with the evidence on record or is liable to be set aside. Both the parties have grievance against the impugned judgment, therefore, they have preferred their respective appeals against it. 12. We heard learned Counsel for the parties at length and perused the case file carefully in order to examine whether the impugned judgment is strictly in accordance with the evidence on record or is liable to be set aside. Pertinent to record that the learned Counsel for the State assailed it and urged vehemently that the accused is liable to be convicted and sentenced for offence under section 302, Indian Penal Code and the learned Counsel for the accused prayed for setting aside the judgment on the ground that the accused is not liable to be convicted and sentenced at all. We proceed to examine the matter. 13. We have already noticed that the accused has admitted almost all the facts of the prosecution case upto the stage of leaving the house of Sant Ram. Even if there are a few stray denials before this stage, they are not of much relevance nor do they in any way damage the case of the prosecution. The most important witness in the case is Aarti. She is the sole eye-witness to the occurrence. Her elopement with the deceased was the result of intimacy that had developed between her and the deceased in Delhi. They had taken a vow before Lord Shiva to live together and accordingly they left Delhi to the distant village of the accused in order to avoid detection by the police and criticism by the neighbours. Reference to this kind of intimacy between the two is important to appreciate the defence and explanation of the accused that in Banoi Nallah the deceased told Aarti about the disclosure of some secret during the night and the secret was a filthy joke referring to the presenting of the accuseds wife to him. Could this be possible, especially when the deceased was eloping with Aarti with whom he had been so intimate and had vowed to live ? Therefore, the defence of provocation taken by the accused is totally absurd, an after thought and unacceptable. 14. Proceeding further, Aarti states that after covering some distance on-foot, they reached Banoi Khad. The deceased told her that he was going to disclose some secrect to her during the night. Therefore, the defence of provocation taken by the accused is totally absurd, an after thought and unacceptable. 14. Proceeding further, Aarti states that after covering some distance on-foot, they reached Banoi Khad. The deceased told her that he was going to disclose some secrect to her during the night. At this stage, she noticed the accused jumping over the deceased from behind, holding him by his neck resulting in both rolling down the place She found the accused putting his hand on a stone and beating the deceased with it. The accused inflicted stone injuries on the head of the deceased repeatedly. They fead reached a mntiy piace at a distance of two feet to three feet. She came to the spot with the police. She states that exact nature of the secret had not been disclosed to her. She has denied the suggestion that the accused got annoyed over the statement of the deceased about some secret being told to her during the night and told the deceased not to talk filth "Gandh Mat Bako". She denies the suggestion that the deceased in fact pounced upon the accused and in order to extricate himself from the clutches of the deceased, the accused pushed him back due to which he fell on the ground with force and his left side of the head struck against a big stone resulting into the injuries, If one goes through the detailed statement of this witness, it would be plainly clear that she has given a truthful and comprehensive account of the whole incident. The deceased may be the person with whom she had decided to live, but her version does cot demonstrate any kind of bias against the accused. Though she is from Kerala, yet her vivid, description of the occurrence shows her presence of mind and acute memory to understand and remember even minute details despite having been put in an unique and tantalising situation. She had no enmity with the accused who had been a confident of the deceased besides being his employee. Intimacy between the accused and the deceased was also quite deep. The accused had been trusted by the deceased and associated in this issue selecting his house for escape and hibernation. She had no enmity with the accused who had been a confident of the deceased besides being his employee. Intimacy between the accused and the deceased was also quite deep. The accused had been trusted by the deceased and associated in this issue selecting his house for escape and hibernation. The version given by Aarti has the support of Sant Ram (PW 13) who admits having met them on the way and staying at his house for a while, leaving after taking milk and keeping the attache-cases after taking certain essential items for use ; taking away of the attache-cases by the accused in the next morning, narration of incident by Sant Ram to Om Pardeep (PW-14) in whose house Aarti took shelter for the night after the occurrence. 15. Om Pardeep has also supported Aarti when he confirms her statement that she had visited his house during the night at about 11.30 p. m. when they were asleep. He heard cries of a woman seeking help saying, "Bachao-Bachao". He opened the door, Aarti came running to him and requested him to save her since a man of the area, who had already killed the deceased, was after her, Aarti was not only offered shelter but also food. She was given Dhoti for use since Sari had been left by her on the way having been entangled in the thorny bushes. To the family, she narrated the whole incident including the fact that in the Nallah the accused pounced upon .the deceased and killed him with a stone. This witness kept watch during the night apprehending that the accused might reach there in search of Aarti. He sent his son Jagdish Kumar to bring A. S. I. Purshotam Chand and remained associated in the investigation of this case from stage to stage. As a matter of fact, the house of the accused was located at a short distance from the house of Sant Ram(PW-B) and Om Pradeep (PW-14). The accused was rather known to Sant Ram. 16. The prosecution evidence connects Sant Ram, accused, Aarti, Om Pardeep, Purshotam Chand and Puran Chand etc. so well that a fully integrated case is formed pointing out the accused the sole killer of the deceased. The accused was rather known to Sant Ram. 16. The prosecution evidence connects Sant Ram, accused, Aarti, Om Pardeep, Purshotam Chand and Puran Chand etc. so well that a fully integrated case is formed pointing out the accused the sole killer of the deceased. Besides, the incriminating articles, attache-cases kept at the house of Sant Ram during the night and taken in the next morning, certain articles taken out of these attache cases during the night and found ultimately at the house of the accused and his fathers sister, add further strength and truthfulness to the case of the prosecution. 17. Purshotam Chand was working in the office of the Superintendent of Police at Dharamshala at the relevant time. He was called by Om Pardeep through his son Jagdish Kumar. Despite having come to know that a murder had taken place, his limping movements in the matter discredit him as a Police Officer. He should have taken prompt steps to inform the police or taken Aarti to the Police Station to lodge the First Information Report. However, it is not a case of questionable delay in lodging the First Information Report, if we look at the sequence of events preceding the actual lodging of the First Information Report in this case. It does not affect the merits of the prosecution case nor does it cloud the prosecution story with embellishment and concoctions. 18. There is another corroborating evidence in this case. It is medical opinion. It is in tune with the narration of the incident by Aarti. All the injuries are found on the head as narrated by Aarti. If we turn to the statement of the accused, the injuries should have been on the face and other parts of the body. This is not so. The medical expert has pinpointed all the injuries and has stated that the death of the deceased was the result of these injuries. 19. Giving our anxious consideration to the evidence on record, we are of the considered opinion that the prosecution has successfully proved beyond all reasonable doubts that it was the accused and none else who was responsible for the murder of the deceased during the night of September 26, 1987 in the manner narrated by Aarti. The defence raised by the accused is totally bogus and by way of an after thought. The defence raised by the accused is totally bogus and by way of an after thought. Although he was an employee of the deceased, yet he took undue advantage of the situation and committed the offence at a place and at a time which the deceased or Aarti never thought of. Additionally, his conduct of slipping away from the office of Superintendent of Police, Kangra on the pretext of taking meals and his arrest from Ludhiana, also indicates his involvement in the matter. The trial Court has erroneously applied the provisions of section 304-1 of the Indian Penal Code to this case. As a matter of fact, the case squarely falls within the province of section 302 of the Indian Penal Code. 20. No other point was urged by the learned Counsel for the parties. Accordingly, Criminal Appeal No. 177 of 1990, State of Himachal Pradesh v. Raghubir Singh alias Raghubhushan, is allowed. The accused is convicted for offence under section 302 of the Indian Penal Code and sentenced to imprisonment for life and pay fine of Rs. 5,000. For failure to pay the fine, he would undergo further rigorous imprisonment for a year. Criminal Appeal No. 195 of 1990, Raghubir Singh alias Raghubhushan v. State of Himachal Pradesh, is dismissed. 21. The accused is stated to be on bail. His bail bonds and surety bonds are hereby terminated. He would surrender to the authorities to undergo the sentence awarded to him. Appeal dismissed.