Honble KOKJE, J. – This jail appeal has been filed by the accused appellant against the judgment and order dated 19.12.1992 passed by the learned Addl. Sessions Judge No.1, Sri Ganganagar in Sessions Case No. 28/92. (2). Briefly stated the prosecution case is that PW 5 Sukhpal Singh is residing at Chak-19Z in District Sri Ganganagar. He has also a `Dhani (house) whereat pro- fession of dairy and growing of vegetables is carried on, at Chak-2E which is also situated at a distance of about 4 kms, from Sri Ganganagar City. He had engaged Hardayal (deceased), and the accused-appellant to lookafter and milch his cattle at the Dhani. PW 4 Raghunath was also living in the same Dhani who was carrying on the work of growing vegetables. PW 3 Smt. Maharani is the wife of Raghunath. They were all living in separate rooms in the one and the same Dhani. Sukh Pal Singh used to visit Dhani of Chak-2E Chhoti after some interval. On the night intervening 15th and 16th January, 1992 at about 2300-2400 hours, when Raghunath and his wife PW 3 Smt. Maharani were sleeping in their separate room. Smt. Maharani heard shouting and cries from the adjoining room of the accused. She woke up Raghunath. They saw that the accused as well as Hardayal who was in a state of drunkenness were quarreling. Hearing the cries, they went to the room of the accused and found that both Hardayal as well as accused were fighting and Hardayal was crying ``killed, killed, on which they challenged and as a result, the accused came out of his room and jumping over the over he escaped from there. They went to Hardayal who was lying dead on the floor of the room and was bleeding profusely. A blood stained `Danda was also lying nearby. They immediately informed Gurnam Singh and Gurdeep Singh who went to Sukhpal Singh in their tractor and immediately reported the incident. Sukhpal Singh, besides Gurnam Singh and Gurdeep Singh, summoned Darshan Singh Pradhan and Harcharan Singh and reached his Dhani at Chak-2E Chhoti at about 4 AM. He found Hardayal lying dead in the room. Raghunath narrated the whole story. Sukhpal Singh went to the Police Station, Sadar, Sri Ganganagar and lodged Ex.P.11 report on which FIR No. 23/92 under Section 302, IPC was registered and PW 9 Ummaid Singh who started investigation. He found Hardayal lying dead in the room. Raghunath narrated the whole story. Sukhpal Singh went to the Police Station, Sadar, Sri Ganganagar and lodged Ex.P.11 report on which FIR No. 23/92 under Section 302, IPC was registered and PW 9 Ummaid Singh who started investigation. He immediately went to the spot and prepared Ex. P. 2 site- plan. He also prepared inquest report Ex. P. 3 and `Panchayatnama of the dead body Ex. P. 4 on the spot. He also collected blood from the place of occurrence. A blood stained `Danda was lying at the site which was also taken into possession. (3). After completion of investigation at the site, the dead body of Hardayal was taken to the Government Hospital, Sri Ganganagar whereat PW 8 Om Prakash Sharma, Medical Jurist conducted autopsy of the dead body of Hardayal. He found four lacerated wounds, as are described in Ex. P. 16 Post-mortem Report, caused by a blunt weapon, as a result of which occipital and parietal bones of the deceased were fractured. He opined that the accused had died as a result of head injury. (4). On completion of investigation a charge-sheet under Sec. 302, IPC was iled in the court of the then Addl. Munsif & Judicial Magistrate, First Class, Sri Ganganagar, who committed the case to the court of Sessions Judge, Sri Ganganagar. He further transferred this case to the court of Addl. Sessions Judge No.1, Sri Ganganagar, who tried the accused for an offence under Sec. 302 IPC, examined PW 1 Jugal Kishore, PW 2 Darshan Singh, PW 3 Smt. Maharani, PW 4 Raghunath, PW 5 Sukhpal Singh, PW 6 Saddique Mohd, PW 7 Bhanwar Singh, PW 8 Dr. Om Prakash Sharma and PW 9 Ummaid Singh. (5). The accused was examined under Section 313, Cr.P.C. and he denied the prosecution story and, by implication, denied his presence as well as ever having been in the employment of PW 5 Sukhpal Singh at his Dhani of Chak-2E Chhoti. He did not adduce any defence evidence. (6). Om Prakash Sharma and PW 9 Ummaid Singh. (5). The accused was examined under Section 313, Cr.P.C. and he denied the prosecution story and, by implication, denied his presence as well as ever having been in the employment of PW 5 Sukhpal Singh at his Dhani of Chak-2E Chhoti. He did not adduce any defence evidence. (6). The learned trial Judge mainly relying on the evidence of PW 3 Smt. Maharani besides PW 4 Raghunath, PW 5 Sukhpal Singh and PW 2 Darshan Singh and the factum of abscondence of the accused from the place of occurrence immediately after committing the crime, concluded that it was the accused appel- lant alone who had done Hardayal to death and hence the accused-appellant was guilty of commission of an offence punishable under Sec. 302, IPC and sentenced his to undergo life imprisonment besides a fine of Rs. 1000/-and, in default, to further under go sentence of six months simple imprisonment. Being aggrieved, this appeal has been preferred by the accused-appellant. (7). We have heard the learned Amicus Curiae as well as the learned Public Prosecutor for the State, perused the impugned judgment as well as the case record carefully. (8). As regards violent death of Hardayal is concerned, there is no challenge from the defence side. PW 3 Smt. Maharani and PW 4 Raghunath, PW 6 Sukhpal Singh and PW 2 Darshan Singh have stated that Hardayal was done to violent death. He was lying dead in Kotha (room) marked-1 in Ex. P.2 site plan. He was bleeding from his head. A bamboo (Danda) was also lying by the side of his dead body. Sukhpal Singh enquired from Raghunath who also narrated the incident and Sukhpal Singh immediately went to the Police Station and lodged Ex. P. 11 verbal report before PW 9 Ummaid Singh, SHO of Police Station, Sadar, Sri Ganganagar, Ex. P. 11 as well as PW 2 Darshan Singh who had accompanied Sukhpal Singh to the place of occurrence from his House (Chak 19Z) has also lent support to the statement of Sukhpal Singh. PW 9 Ummaid Singh immediately went to the scene of occurrence and he saw the dead body lying on the spot. He prepared Ex. P. 3 inquest report as well as Ex. P. 4 ``panchayatnama of the dead body. PW 9 Dr. Om Prakash Sharma conducted the post-mortem of the dead body of Hardayal. PW 9 Ummaid Singh immediately went to the scene of occurrence and he saw the dead body lying on the spot. He prepared Ex. P. 3 inquest report as well as Ex. P. 4 ``panchayatnama of the dead body. PW 9 Dr. Om Prakash Sharma conducted the post-mortem of the dead body of Hardayal. He found four lacerated wounds as are described in Ex. P. 16 Post-mortem Report and they were all caused by blunt weapon. He stated the case of death due to injury to the head. All these injuries were stated to be ante-mortem. However, he did not opine as to whether all or any of such injuries was individually sufficient in the ordinary course of nature to cause death. On his examination in the court, he testified and proved all the said four injuries as are noted in Ex. P. 16. Out of them two injuries were on the occipital region, third one was on the left parietal while the fourth injury was on fronto-parietal bone. He opined that occipital and left parietal bones of the deceased were fractured. He did not state as to whether such grievance injuries corresponded with the aforesaid four external injuries noticed in the form of lacerated wounds. However, he further opined that it was a result of cumulatively effect of all the four injuries that the death of the deceased had occurred. He did not state that any one or more of such injuries, when taken individually, was sufficient in the ordinary course of nature to cause death. Looking to the present bone of contention, suffice it to say that Hardayal had died due to the injuries caused on his head resulting in fractures of occipital as well as left parietal bones. Thus, it is taken to be proved that Hardayal was done to death by causing injuries to his head by blunt weapon. Here it may be stated that, as is stated by PW 3 Smt. Maharani, PW 4 Raghunath, PW 2 Darshan Singh as well as PW 9 Ummaid Singh, and is also borne out of site plan Ex. P. 2 and seizure memo Ex. P. 8 of the bamboo (Danda) being blood stained, lying at the spot was seized vide Ex. P. 8 seizure memo. The appellant also, while under examination under the provisions of Sec. 313, Cr.P.C. did not challenge this fact. (9). P. 2 and seizure memo Ex. P. 8 of the bamboo (Danda) being blood stained, lying at the spot was seized vide Ex. P. 8 seizure memo. The appellant also, while under examination under the provisions of Sec. 313, Cr.P.C. did not challenge this fact. (9). As a result, we need not be detained to conclude that Hardayal was subjected to an assault by blunt weapon as a result of which he received four lacerated wounds on his head resulting in fractures of his occipital and left parietal bones resulting in his violent and real death. (10). Therefore, now, crucial point for adjudication is as to whether the accused-appellant is the author of such fatal injuries and in case it is so, he is liable for commission of murder as defined under Section 300, IPC being liable for conviction under Section 302, IPC as is the verdict of the trial Court. (11). PW 3 Smt. Maharani and PW 4 Raghunath, who are wife and husband respectively and were, admittedly, employed as servants, as above, by PW 5 Sukhpal Singh, along with Hardayal (deceased) and the accused-appellant, were also living in a kotha situated adjacent to the one in which dead body of Hardayal was lying and the room of their occupation is marked by No. 7 in Ex. P. 2 site- plan. Admittedly, the approach of Raghunath and Smt. Maharani from their room No. 7 in Ex. P. 2 was round about and the rooms occupied by the deceased as well as the appellant did not have direct approach to that of room occupied by Raghunath and his wife. PW 3 Smt. Maharani stated that at about 2300-2400 hours in the night of occurrence, she, along with her husband PW. 4 Raghunath, as is the statement of Raghunath also, was sleeping in her room. She heard the cries of Hardayal ``mara mara. PW 4 Raghunath also stated that he fell asleep at about 9 or 10 PM and he was woken up at about 11 PM or so by his wife and was told that there was a noise of ones crying on which he, along with his wife Smt. Maharani went to the room and saw Hardayal lying on the floor and the appellant was beating him with a bam- boo (Danda). He further stated that Hardayal was crying that he has been killed killed. He further stated that Hardayal was crying that he has been killed killed. Smt. Maharani also, supporting the statement of Raghunath stated that they went to the room of the appellant and saw that the appellant was hitting Hardayal with a `Danda on his head. They have stated that a bottle of wine, with a little quantity of wine in it was lying there. Besides, cooked meat was also lying in a brass-pot. They further stated that Hardayal was bleeding from his head injuries. The appellant left the `Danda at the spot and he jumped over the wall of the premises on the outer side and fled away. Hardayal did not respond. They have both stated that they contacted Gurdeep Singh and Gurnam Singh, who have not been examined, and they were told about the incident. Gurdeep Singh and Gurnam Singh took their tractor and went to the Chak-19Z whereat PW 5 Sukhpal Singh was residing along with his family members. (12). PW 5 Sukhpal Singh also stated that both Gurdeep Singh and Gurnam Singh came there on a tractor at about 2.30 or 3.00 AM in the night. They narrated the incident. He approached Harcharan and Darshan Singh and took up their jeep and they all reached his Dhani at Chak-2E at about 4 AM. Raghunath told him about the whole incident. He also found that a bottle of wine and cooked up meat was lying at the site. He was also told that the accused- appellant had jumped over the wall and left with his attache from there. He went to the Police Station, Sadar and lodged Ex. P. 11 report with PW 9 Ummaid Singh as is also supported by Ummaid Singh. Ex.P.11 FIR also lends full support to the statement of Sukhpal Singh. PW 2 Darshan Singh has also corroborated statement of PW 5 Sukhpal. (13). However, as the learned Amicus Curiae has contended, PW 3 Smt. Maharani stated in her cross-examination that she had seen the accused appellant from the field leaving the Dhani with a attache at about 3 to 5 PM. She further stated that she did not see either Hardayal or the appellant in their room before she went to sleep. However, she has clearly stated that she heard the cries of Hardayal at the time of occurrence and she went to the room of the appellant along with her husband PW. She further stated that she did not see either Hardayal or the appellant in their room before she went to sleep. However, she has clearly stated that she heard the cries of Hardayal at the time of occurrence and she went to the room of the appellant along with her husband PW. 4 Raghunath and saw the appellant hitting Hardayal with a bamboo (Danda). (14). Similarly, PW 4 Raghunath also stated that the accused- appellant left the Dhani at 3 or 4 PM but he had come back at 5 or 6 PM. He also stated that then the accused-appellant was alone. He also stated that Hardayal was habitual addict to alcohol and he was also offered the same many a time. He also admitted that as soon as they reached the room in which Hardayal was lying, the appellant ran out and jumped over a wall seven or eight feet high. He also stated that they had seen the deceased lying on the floor and bleeding while the appellant fleeing away from the scene of occurrence in the light of torch. It has been suggested to PW 3 Smt. Maharani as well as PW 4 Sukhpal that Hardayal was having illicit relationship with Smt. Maharani and so being annoyed, they had all collectively done Hardayal to death and the appellant was falsely implicated. There is no direct evidence or circumstantial evidence to believe that the deceased had any such illicit relationship with the wife of Raghunath who have completically denied such a held suggestion. (15). It is borne out of the statements of PW 3 Smt. Maharani PW 4 Raghunath, PW 5 Sukhpal Singh and PW 2 Darshan Singh that Smt. Maharani heard the cries of Hardayal who was being assaulted by the appellant with a `Danda and she immediately woke up her husband PW 4 Raghunath and Smt. Maharani with Raghunath immediately went to the room where Hardayal was lying. They saw the appellant assaulting Hardayal with a bamboo (Danda). They have specifically stated that they saw the appellant immediately dropping the Danda there and running away with a attache and jumping over the four-wall of the Dhani. They were all knowing the appellant from before. They were immediate neighbours and were co-employees of PW 5 Sukhpal Singh. They saw the appellant assaulting Hardayal with a bamboo (Danda). They have specifically stated that they saw the appellant immediately dropping the Danda there and running away with a attache and jumping over the four-wall of the Dhani. They were all knowing the appellant from before. They were immediate neighbours and were co-employees of PW 5 Sukhpal Singh. Therefore, when Smt. Maharani as well as Raghunath clearly stated that they saw the accused hitting Hardayal and then immediately saw him running away from there, there is hardly any scope for suspecting statements of both the witnesses who have had ample opportunity to have seen the appellant assaulting Hardayal. They had immediately gone to the room where Hardayal was being subjected to an assault and was lying hurt. They immediately contacted Gurdeep Singh and Gurnam Singh, as is supported by PW 5 Sukhpal Singh and PW 2 Darshan Singh and, it was on information of Raghunath through Gurdeep Singh and Gurnam Singh that Sukhpal Singh had immediately reached his Dhani at about 4 AM in the night itself. Sukhpal Singh lost no time in going to the Police Station, Sadar of Sri Ganganagar whereat he lodged Ex. P. 11 report with PW 9 Ummaid Singh. Ex. P. 11 FIR also lends full support to the statement of Sukhpal Singh. Therefore, this contention of the defence cannot be accepted that it was not the appellant but Sukhpal Singh and his servants PW 3 Smt. Maharani and PW 3 Raghunath who had fatally assaulted Hardayal suspecting his character and conduct. (16). Therefore, having regard to the statements of PW 8 Dr. O.P. Sharma, Medical Jurist, who performed the post-mortem of the dead body of Hardayal, PW 9 with whom PW 5 Sukhpal Singh lodged Ex. P. 11 FIR and the statements of PW 3 Smt. Maharani and PW 4 Raghunath who had immediately informed PW 5 Sukhpal Singh through Gurdeep Singh and Gurnam Singh, as also supported by the statement of PW 2 Darshan Singh, it was the appellant alone who had inflicted injuries on the head of the deceased Hardayal, as a result of which Hardayal succumbed to his head injury. Though, Gurdeep Singh and Gurnam Singh have not been examined by the prosecution but, having regard to the statements of PW 5 Sukhpal Singh as well as PW 2 Darshan Singh besides the statement of PW 3 Smt. Maharani and PW 4 Raghunath, their non-examination is not fatal to the prosecution. (17). Besides, appellant had immediately absconded from the place of occurrence immediately on commission of the crime, whereat he was in the employment and in the service of PW 5 Sukhpal Singh since long. He belonged to a village Goha Rom in District Ranchi (Behar) wherefrom he was apprehended by PW 6 Sadique Mohd., ASI, on 30.1.92 vide Ex. P. 12 arrest memo and he even denied even being in the employment and service of PW 5 Sukhpal Singh contrary to his defence put forth that he had left in the afternoon of 15.1.92. This circumstance of abscondence immediately from the scene further strengthens the prosecution case that he was responsible for the injuries of the deceased who was his co- worker which resulted in his consequential death. (18). The evidence of the aforesaid witnesses leave no room that it was the accused-appellant alone who had killed Hardayal to death and no other argument to the contrary is not tenable. Thus, the learned trial Judge has rightly appreciated and evaluated the evidence of the prosecution to conclude that it was the appellant who had caused death of Hardayal. (19). Now, most crucial point for consideration is as to what offence is proved to have been committed by the appellant. (20). As concluded above, both the deceased as well as the appellant were living in the adjoining rooms in the Dhani of PW 5 Sukhpal Singh. They looked after the milch-cattle of Sukhpal Singh who was also running a dairy and also grew vegetables in his field in which Dhani was situated. Both of them belonged to UP and Behar. They were not inimical to each other and so the appellant had had no animosity with the deceased. He did not have any motive to kill the deceased. There is absolutely no evidence or even reason to believe that the appellant ever entertained any ill-will or grudge against the deceased to have wreaked any vengeance on him. They were not inimical to each other and so the appellant had had no animosity with the deceased. He did not have any motive to kill the deceased. There is absolutely no evidence or even reason to believe that the appellant ever entertained any ill-will or grudge against the deceased to have wreaked any vengeance on him. Hardayal deceased was in the habit of drinking and he used to consume alcohol even on being advised against by PW 4 Raghunath and PW 5 Sukhpal Singh. PW 4 Raghunath stated that the deceased and appellant lived together in the two inter connected rooms and they cooked and ate together. The incident took place in the room of the appellant. PW 5 Sukhpal Singh clearly stated that he was told by Raghunath that both the deceased Hardayal as well as the appellant were drinking and eating meat throughout the day. He also found bottle of wine and cooked-meat lying in the room of the appellant wherein dead body of Hardayal was lying. (21). PWs. Smt. Maharani, Raghunath, Darshan Singh and Sukhpal Singh found the babmoo-danda (stick) lying at the site which was seized by PW 9 Ummaid Singh vide Ex. P. 8 Memo which measured 3 1/2 feet in length. This was not a lethal wea- pon nor it could be dangerous or an traditional weapon of offence. Since Hardayal and the appellant served, worked, lived, ate and drank together and there was no history of previous dispute or differences between the two, it is a perfect mystery as to what motivated or prompted the appellant to give beatings to his companion with a handy `Danda used in driving cattle. Both of they were drinking together throughout the day previous to the night of occurrence. They also cooked meat which was found lying in a cooking pot in the room. It further shows that both of them had spent the day in a happy and gay mood eating and drinking together. It was at about midnight that PW 3 Smt. Maharani suddenly heard sound of groaning and crying of Hardayal that he was killed and so Smt. Maharani and Raghunath ru- shed to the room of the appellant through the room of the deceased and found the deceased lying on the floor of the room and bleeding from his head injuries. (22). (22). There is not an iota of evidence as to what was the immediate cause of provocation or prompting or motive which actuated the appellant for causation of the injuries to the deceased. Both were drinking together since long prior to the occurrence. There was a perfectly friendly and cordial atmosphere and a sudden occurrence had erupted resulting in assault with a `Danda by the appellant. Normally, such bamboo-danda are available in every house hold specially with the farmers and cattle-feeders. There are overwhelming circumstances, as are borne out of the statements of PWs. Maharani, Raghunath and Sukhpal Singh, that the appellant also drank in the company of the deceased and they cooked meat and enjoyed the days time without any unusual happening. (23). The Apex Court in Kartar & Ors. vs. State of Punjab & Anr. (1), in a rioting and murder case in which the deceased received a serious injury caused by a deadly-sharp weapon on the skull and many others on the legs by fire-arms resul- ting in his death, since there was no corresponding internal injury on the skull, as is also the case in hand, in absence of specific medical evidence, held that the assailants are not proved to have had any intention to cause death and hence offences under Secs. 326 and 326/149, IPC, only were held to be made out. (24). Therefore, the prosecution has not been able to establish that the appe- llant had any motive, whatsoever, to have intended to kill the deceased to death. The bamboo-danda, used in assaulting the deceased must have been lying in the room itself. The deceased was also in a state of drunkenness and so must have been the appellant, as concluded hereinbefore. There were lacerated wounds on the head of the deceased and parietal and frontal bones were fractured. PW 8 Dr. Om Prakash Sharma did not find any injury to brain matter. He did not state as to which injury out of such four injuries was the cause of fractures so caused. He did not find any single injury to be sufficient in the ordinary course of nature to cause death and instead opined that all such injuries had the cumulative effect or causing death. The genesis of the incident, specially, in the circumstances narrated above, is shrouded in mystery. He did not find any single injury to be sufficient in the ordinary course of nature to cause death and instead opined that all such injuries had the cumulative effect or causing death. The genesis of the incident, specially, in the circumstances narrated above, is shrouded in mystery. Though the appellant must be presumed to have known the consequences of his act of causing injuries to the deceased more particularly on head yet there is no evidence to reach the irresistible conclusion that the appellant did intend to cause any injury to the deceased which was sufficient in the ordinary course of nature to cause death. He can only be attributed the know- ledge that his act was likely to result in grievous injuries, further resulting in death. The deceased, who was a habitual alcoholic and was drinking throughout the day, might have provoked the appellant for such a sudden and unexpected assault with a Danda. There must have been some cause for such conduct but there is no evidence as to what had transpired before the deceased was subjected to such assault. (25). For an offence of murder under Section 300, IPC, Clauses 1, 2 and 3 of the same require proof beyond doubt of specific intent which is an essential ingre- dient to constitute the offence and the prosecution has not been able to do so. However, having regard to the fact that, besides the deceased himself, the appellant too voluntarily drank and as such even if a factor of his being in a drunkenness is taken into consideration, in the above mentioned circumstances, in the present case. Sec. 86, IPC too imputes necessary guilty knowledge to the appellant that his act was likely to cause death and hence the appellant is held liable for committing homicide not amounting to murder. (26). That being so, the learned trial Judge fell into legal error while concluding the appellant guilty for commission of offence under Sec. 302, IPC. Instead, the appellant is liable for an offence punishable under Section 304 Part II, IPC. (27). Therefore, this appeal deserves acceptance in part. (28). In the result, this appeal is partly accepted and consequently impugned judgment and order of sentence is set aside. Instead, the appellant is convicted under Sec. 304 Part II and, sentenced to imprisonment already undergone by him since he is already in custody/jail serving out sentence since 30.1.92. (27). Therefore, this appeal deserves acceptance in part. (28). In the result, this appeal is partly accepted and consequently impugned judgment and order of sentence is set aside. Instead, the appellant is convicted under Sec. 304 Part II and, sentenced to imprisonment already undergone by him since he is already in custody/jail serving out sentence since 30.1.92. He is ordered to be set at liberty in case he is no longer required in any other case.