JUDGMENT 1. - The learned Addl. Sessions Judge by his judgment dated 31.3.1990 has convicted the accused for an offence under Section 302 Indian Penal Code and sentenced him to undergo life imprisonment together with a fine of Rs. 500/- in default of payment whereof to further undergo rigorous imprisonment for six months. 2. The brief facts of the case are a First Information Report was lodged by Om Parkash at the Police Station-Gharsana on 3.4.1988 at 1.30 a.m. in respect of the occurrence took place on 2.4.1988 at about 9.30 p.m. The informant Om Prakash stated in the First Information Report on 2.4.1988 at about 8.00 p.m. he, Krishna Lal and Jagdish were proceeding towards their village from Rawla Mandi. When they reached the field of Shankar Lal at about 9.30 p.m., they heard the cry "save, save", which was coming from the Eastern side of the field of Shankar Lal. Hearing the above cry, they rushed towards the place from where the cry for help was coming. There they saw Makhan Singh (accused was inflicting blows on the person of Nihal Chand with big pieces of bricks. In their presence the accused inflicted 4-5 blows. As soon as the accused saw them, he left Nihal Chand (deceased) and ran away from the spot. Then they attended Nihal Chand who was lying on the ground in a very injured condition. They saw he was bleeding profusely. His face was smeared with blood. When they called him he did not respond. meanwhile Hanuman and Bhup Ram came to the place of occurrence hearing the noise.On this report, the Police registered a case under section 302 Indian Penal Code and proceeded for the investigation. 3. The Investigating Officer inspected the place of occurrence and prepared site-plans Ex. P2 and Ex. P. 3. The inquest report (Ex. P-4) was also prepared and according to opinion of the responsible persons who took part in the inquest proceedings, the deceased died as a result of sustaining the injuries. The Investigating Officer also collected the blood smeared as well as control soil from the place of occurrence. The pieces of brick were also seized by Ex. P-7. 4. Dr. H.S. Kang (P.W.-7) conducted postmortem on the dead-body of Nihal Chand. The Investigating Officer also collected the blood smeared as well as control soil from the place of occurrence. The pieces of brick were also seized by Ex. P-7. 4. Dr. H.S. Kang (P.W.-7) conducted postmortem on the dead-body of Nihal Chand. The Medical Officer found two lacerated wounds : one-on the right-jaw, 21/2 "x 2" in size and; second-on the upper right lip, 1" x 3/4" bone deep in size. He found several haematomas on the head of the deceased. When the internal injuries were examined, the Medical Officer found both the parietal and temporal bones as also the occipital bones had fractured. The brain membrane was clotted with blood and there was, bleeding from the ear. The brain was crushed. According to the Medical Officer deceased Nihal Chand died on account of above injuries and the injuries sustained by him were sufficient in the ordinary course of nature to cause death. The post-mortem report is Ex. P-1 on record. 5. After the investigation, the Police filed a charge-sheet in the Court of learned Munsif and Judicial Magistrate, Bhadra on 4.7.1988, who committed the case of the accused to the court of Sessions on 16.7.1988 for standing trial against him. 6. Learned Sessions Judge framed the charge against the accused and recorded the plea of the accused. The accused pleaded not guilty and claimed to be tried. 7. The prosecution has produced three eye-witnesses, namely Om Prakash (P.W.1), Jagdish (P.W. 2) and Kishan Lal (P.W.) witnesses claimed ley saw the incident while they were returning to their village from Rawla Mandi. Bhup Ram (P.W.4) and Hanuman (P.W.3) also stated they reached the place of occurrence from their flour mill and they saw accused Makhan Singh proceeding towards the village. They further stated when they called him, he did not respond, Kishan Lal, Om Prakash and Jagdish told them accused had killed Nihal Chand. The learned Sessions Judge believed that the version of the eye-witnesses the accused inflicted blows with pieces of brick upon the deceased, and caused his death. He, therefore, held that the accused guilty of the offence under Section 302 Indian Penal Code and sentenced him as aforesaid. 8. We have heard the learned Amicus Curiae for the accused appellant as well as the learned Public Prosecutor, and gone through the judgment impugned as well as the record of the case. 9. He, therefore, held that the accused guilty of the offence under Section 302 Indian Penal Code and sentenced him as aforesaid. 8. We have heard the learned Amicus Curiae for the accused appellant as well as the learned Public Prosecutor, and gone through the judgment impugned as well as the record of the case. 9. The learned Amicus Curiae challenged the judgment of conviction and order of sentence of the teamed Sessions Judge, on the ground that there was inordinate dealy in lodging the First Information Report. She contended the prosecution has not offered any explanation for this dealy. She further submitted that at trial stage, the witnesses appears to have improved their version, inasmuch as during the trial the witnesses have stated that Nihal Chand was lying on the ground and the accused was sitting over his chest and hitting him with brick pieces, whereas in their Police statement under Section 161, Criminal Procedure Code the witnesses have not stated that the accused was sitting over the deceased and hitting him way. Thirdly, all the witnesses are interested and in the facts and circumstances of the case they are not reliable. 10. Learned Public Prosecutor supported the judgment of the learned Sessions Judge. 11. We have thoughtfully considered the rival contentions. It has not been disputed before us that Nihal Chand died as a result of sustaining several head injuries, as mentioned by the Medical Officer in his Postmortem report Ex. P-11. From the statement of the Medical Officer also it has been proved deceased Nihal Chand died as a result of the above injuries. Hence, the death of Nihal Chand was homicidal. 12. Now the next question falls for determination for us is-Whether the prosecution has been able to prove that it was the accused who caused the above injuries to Nihal Chand. For proving this important point the prosecution, as we have already mentioned, had relied upon the testimony of the three eye-witnesses, namely-Om Prakash (P.W. 1), Jagdish (P.W. 2) and Kishan Lal (P.W. 5). All the three witnesses deposed they were returning to their village on day and when they reached near the field of Shankar Lai they heard the cries "save, save". Thereupon they reached the place from where the above call for help was coming and saw the accused was sitting over Nihal Chand and hitting him with brick pieces. All the three witnesses deposed they were returning to their village on day and when they reached near the field of Shankar Lai they heard the cries "save, save". Thereupon they reached the place from where the above call for help was coming and saw the accused was sitting over Nihal Chand and hitting him with brick pieces. Since it was moon-lit night they could see the occurrence. They have also stated when they reached the place of occurrence, the accused left Nihal Chand and proceeded towards the village. 13. It is correct that Om Prakash (P.W. 1) is the brother of the deceased but on the ground of relationship alone his testimony cannot be neglected. It was also suggested that his presence at the place of occurrence was accidental, he is a chance witness and, therefore, it is risky to rely upon his evidence. No doubt Om Prakash (P.W. 1) is the brother of the deceased but we do not find anything in his statement to discard his testimony. He had been corroborated by other two eye-witnesses namely-Jagdish (P.W.2) and Kishan Lal (P.W.5). Further, all the three witnesses are corroborated by Hanuman (P.W.3) and Bhup Ram (P.W.4) who reached the place of occurrence after the above three witnesses had reached there. These two witnesses saw the dead-body and when they asked Om Prakash and Kishan Lal as to what had happened, the witnesses told that the accused had killed Nihal Chand by hitting with brick pieces. 14. It was alleged that these witnesses made improvements in their statements. It was asserted the three eye-witnesses did not tell in their statement recorded under Section 161, Criminal Procedure Code they saw the accused sitting over the deceased Nihal Chand and hitting him with brick- pieces. This, in our opinion, is a mere omission. The witnesses have given complete statement before the Court. It is correct that witnesses ought to have given similar statements to the police but the sum and substance clearly derivable from their testimony before the police as well as the court is the accused was hitting Nihal Chand with pieces of bricks. 15. The motive for the crime, according to the prosecution, was the accused suspected Nihal Chand was having illicit relation with his wife. The accused and the deceased also fought a week before the day of incident out-side the village. 15. The motive for the crime, according to the prosecution, was the accused suspected Nihal Chand was having illicit relation with his wife. The accused and the deceased also fought a week before the day of incident out-side the village. Be as it may, after appreciation of evidence, the learned Sessions Judge reached to the conclusion that the accused was guilty of murder of deceased Nihal Chand by inflicting injuries upon him with brick pieces. 16. Now we have to examine as to what offence is made out against the accused. It is correct at a result of above injuries that Nihal Chand died but in order to ascertain the intention of the accused we have to take into consideration the attending circumstances, the nature of weapon used, the motive and the resultant injuries sustained by the deceased. In the instant case, the accused used brick pieces for causing injuries to the deceased. When a person intends to cause death of any person, normally the brick pieces are not used as weapon because generally they are not supposed to cause fatal blows to the victim. According to the eye-witnesses the accused inflicted 5-6 blows with pieces of brick on the person of the deceased. According to medical report, Nihal Chand died as a result of multiple fractures of the skill. Looking to the weapon of offence used, the only offence we can attribute against the accused is that by causing those injuries death of the victim was likely to be caused. Hence the act of the accused falls under Section 304 Part II Indian Penal Code 17. In view of above discussion, we partly allow this appeal and alter the conviction of the accused from under Section 302 to under Section 304 Part II, Indian Penal Code and order sentence to undergo five years rigorous imprisonment alongwith a fine of Rs. 1000/- in default of payment whereof to further undergo six months rigorous imprisonment.The accused is in jail since 3.4.1990 and it appears that he has served out the awarded sentence. We, therefore, order that the accused be released forthwith, if his detention is not required in any other case and if he has served out the sentence.Ordered accordingly. *******