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2001 DIGILAW 271 (HP)

YOGESH KUMAR v. STATE OF HIMACHAL PRADESH

2001-10-04

K.C.SOOD, LOKESHWAR SINGH PANTA

body2001
JUDGMENT Lokeshwar Singh Panta, J. :- This appeal is directed against the judgment and order dated 29.12.1999/31.12.1999 by which the Sessions Judge, Una has convicted the appellant-accused under Section 302 of the Indian Penal Code for causing murder of one Pawan Kumar and sentenced him to imprisonment for life and to pay fine of Rs.5,000/-. In default of payment of fine he shall suffer simple imprisonment for one year. 2. In Session Case No.5/1999 (Sessions trial No.9/1999) four accused namely Yogesh Kumar, Dinesh Kumar, suresh Kumar and Smt. Raj Kumari were charged for the offence under Sections 302 and 120-B of the Indian Penal Code by the learned Sessions Judge, Una. The learned Sessions Judge convicted and sentenced Yogesh Kumar accused for the offence punishable under Section 302 I.P.C. and acquitted the other three accused persons. 3. The facts of the prosecution case may briefly be stated as follows: 4. On 28.8.1995 at about 4.15 a.m. Manohar Lai (PW-4) resident of Nangal Jarialan went to Police Station, Gagret and imparted information which was recorded by Constable Ashok Kumar (PW-14) in daily diary mark Ext. PU stating inter alia, that Yogesh Kumar accused inflicted grievous injuries on the person of Pawan Kumar with some sharp edged weapon. On the said information ASI Daya Sagar (PW-18) went with PW-4 to Primary Health Centre, Gagret where injured Pawan Kumar was taken for medical treatment. After taking the opinion of Dr. N.K. Bhardwaj (PW- 11) about the fitness of Pawan Kumar the victim of assault, PW-18 recorded the statement (Ext.PR) made by injured Pawan Kumar under Section 151 Cr.P.c. in the presence of the doctor. The victim of assault stated, inter alia, that on the intervening night of 28.8.1995/29.8.1995 when he was sleeping with Raj Kumar (PW-2) and Dalbir Singh (PW-3) in the Verandah of the house of PW-4 Manohar Lai, the accused at about 2 a.m. came there and gave a dart blow on his face and right hand. He cried due to the pain. The accused ran away with 2-3 other persons who were standing outside the verandah. On the basis of the said statement, F.I.R. Ext.PB came to be registered at Police Station, Gagret by PW MHC. Ashok Kumar at 5.15 a.m. PW Dr. N.K. Bhardwaj Medical Office, Primary Health Centre, Gagret attended upon the injured and found two injuries on his person. The accused ran away with 2-3 other persons who were standing outside the verandah. On the basis of the said statement, F.I.R. Ext.PB came to be registered at Police Station, Gagret by PW MHC. Ashok Kumar at 5.15 a.m. PW Dr. N.K. Bhardwaj Medical Office, Primary Health Centre, Gagret attended upon the injured and found two injuries on his person. He referred the injured to Post Graduate Institute, (PGI) Chandigarh after giving first aid treatment. Injured Pawan Kumar succumbed to his injuries on 5.9.1998 in P.G.I. Chandigarh. Dr. Aditya Kumar Sharma (PW-20), Assistant Professor Department of Forensic Medicine, P.G.I. Chandigarh conducted post mortem examination on the dead body of Pawan Kumar. PW-18 inspected the spot of the occurrence and recorded the statements of he witnesses. He prepared site plan (Ext.PW) and took into possession blood stained Khesi (Chader) (Ext.P-3) and blood stained soil (Ext.P-4) from the spot. On hearing the death of Pawan Kumar he went to P.G.I. Chandigarh to collect the necessary death certificate etc. The dead body of Pawan Kumar was handed over to his relatives. PW-8 arrested the accused on 10.9.1998 when his bail application was dismissed by the High Court on 9.9.1998. In the morning of 11.9.1998 when the accused was in the lock up he consumed one lizard. The accused was sent to Primary Health Centre, Gagret for medical treatment and a case under Section 5J9 I.P.c. was also registered against him. On 10.9.1998 Mohinder Singh brother of deceased Pawan Kumar produced pant (Ext.P-8), baniyan (Ext.P-9) and underwear (Ext.P- 10) of Pawan Kumar before PW-18 which were taken into possession vide recovery memo Ext.PG and sealed in a parcel with seal M. On the same day PW Dalbir Singh handed over his blood stained shirt (Ext.P-7) which was also taken into possession vide recovery memo (Ext.PH). PW- 18 deposited all sealed parcels of the articles taken into possession with M.H.C. on 12.9.1998 the investigation of the case was taken over from PW-18 by S.H.O. Kashmir Singh (PW-19) who was on tour to Bilaspur to appear as witness in the court. PW-19 recorded disclosure statement (Ext.PM) made to him by the accused in the presence of Multan Singh (PW-8) Pradhan, Gram Panchayat and Raghunath Singh Up- Pradhan to the effect that he could get the dart recovered which he kept concealed. PW-19 recorded disclosure statement (Ext.PM) made to him by the accused in the presence of Multan Singh (PW-8) Pradhan, Gram Panchayat and Raghunath Singh Up- Pradhan to the effect that he could get the dart recovered which he kept concealed. The accused was discharged from the hospital on 18.9.1998 and on 14.9.1998 he led the police party to the house of his grand father in village Bahera in Punjab. The accused got the vehicle stopped near a Nullah and thereafter he led the police party and witnesses, namely, Pritam Singh (not examined) and Tilak Raj (PW-10) to the house of his grand father Dharam Singh. On the back side of the cow shed of Dharam Singh from beneath the heap of wood kept in the Verandah of the cow shed, the accused took out drat (Ext.P-12) and produced it to PW-19 who prepared sketch (Ext.PN) of the drat in the presence of he witnesses and sealed the same in a parcel with seal impression T and memo (Ext. PO) of taking into possession drat was also prepared. Site plan of the place of the recovery of the drat mark (Ext.PZ) was also prepared. Yogesh Kumar accused also produced Torch (Ext.P-19) before the Investigating Officer which was taken into possession. During the investigation of the case, some evidence was also found against other accused persons. On receipt of report of Forensic Science Laboratory, Junga marked Ext.PZ/1, PW-19 submitted the charge-sheet against Yogesh Kumar accused under Section 302 I.P.c. and against other accused persons under Section 120-B read with Section 302 I.P.C. 5. The Judicial Magitrate 1st class, Amb committed the case to the Court of Sessions for trial on 13.1.1999. The learned Sessions Judge, on consideration of the police report found prima facie case against the accused persons and framed charge against Yogesh Kumar accused under Section 302 read with Seciton 120-B I.P.c. whereas other accused were charged to stand trial for the offence punishable under Section 120-B read with Seciton 302 I.P.C. All the accused persons pleaded not guilty to the charges and claimed to be tried. 6. The prosecution in support of its case examined as many as 20 witnesses and also placed on record documents to base the conviction of the accused persons. 6. The prosecution in support of its case examined as many as 20 witnesses and also placed on record documents to base the conviction of the accused persons. In his statement recorded under Section 313 Cr.P.C, Yogesh Kumar accused admitted that Pawan Kumar was working as driver with PW Manohar Lai at the relevant time. He also admitted that on 27.8.1998 PW Dalbir Singh tractor driver of PW-4 went to lift stones from the a khud and he did not allow PW-3 to do so. He stated that he did not voluntarily consume lizard on the intervening night of 10.9.1998/11.9.1998 but it was forcibly administered to him by the Police. He also stated that the witnesses are inimical towards him and, therefore, they have deposed falsely against him. He pleaded that on 2.8.1998 PW. Dalbir Singh tried to lift stones from a khud and when he objected, PW. Dalbir Singh and Manohar Lai gave beatings to him at Nangal Jarialan Bazar. He went to inform his father who sent him to home. His father went to the house of Pradhan of the Panchayat and it was only thereafter that this false case was framed against him. 7. The learned trial Judge upon consideration of the entire evidence laid before him, found Yogesh Kumar accused guilty of the offence under Section 302 I.P.C, convicted and sentenced him as aforesaid, whereas other accused persons stand acquitted for the charges levelled against them. Yogesh Kumar accused has challenged his conviction and sentence in this appeal. It appears that no appeal has been filed by the State against the acquittal of other accused persons. 8. Mr. Y.P.S. Dhaulta, learned counsel for the accused while assailing the conviction and sentence imposed upon the accused by the learned Sessions Judge has raised following contentions:- (1) that the statement Ext.PR allegedly made by Pawan Kumar under Section 151 Cr.P.c. was not proved having been made by the victim nor it can be treated as dying declaration because it was not made either before the doctor or the Magistrate; (2) that the recovery of the drat the alleged weapon of offence by the Investigating Officer immediately on the next date of discharge of the accused from the hospital from near and around the house of his grand father was highly doubtful and no reliance could have been placed on such recovery by the learned Sessions Judge. (3) the injuries as found on the face of the victim were not on the vital parts of the body as opined by PW Dr. Naval. (4) that the cause of the death of Pawan Kumar according to PW-20 Dr. Aditya Kumar Sharma was septicemia shock and not because of the injuries suffered by him on his face and hand and therefore, the accused has been wrongly convicted under Section 302 I.P.C. by the learned trial Judge; (5) that the prosecution has miserably failed to attribute and prove the motive for the murder of the deceased Pawan Kumar by the accused; (6) that there are major contradictions and improvements in the statement made by PW Manohar Lai in the F.I.R. and deposition before the court and therefore, his testimony has to be left out from consideration being wholly unreliable and unworthy. In the site plan Ext.PW the Investigating Officer has not mentioned about the electricity connection fitted in the house of PW-1 prove that the accused was identified by the deceased and or by PW Dalbir Singh in the electricity light as allegedly by PW-3. 9. Mr. Dhaulta learned counsel relied upon some decisions which shall be dealt with hereinafter at an appropriate stage. 10. Per contra, the learned Assistant. Advocate General for the State on the other hand has supported the conviction of the accused for the reasons set out in the judgment. It was contended that the prosecution has proved on record that it was the accused who stealthily entered the Verandah of the house of PW. Manohar Lai on the night of the occurrence and struck blows with sharp edged weapon on the vital parts of the body of Pawan Kumar when he was sleeping on a cot along with PW Dalbir Singh. He contended that the learned trial judge has meticulously examined the entire material on record and found the accused guilty of the charge levelled against him and this court will not be obliged to set aside the well reasoned judgment which is otherwise based upon sound findings and reasonings. 11. We now proceed to examine and consider the contentions referred to above raised on behalf of the accused. 12. The prosecution examined PW-11 Dr. N.K. Bhardwaj who at the relevant time was posted as Medical Officer, Primary Health Centra, Gagret. PW-18 ASI submitted an application Ext. 11. We now proceed to examine and consider the contentions referred to above raised on behalf of the accused. 12. The prosecution examined PW-11 Dr. N.K. Bhardwaj who at the relevant time was posted as Medical Officer, Primary Health Centra, Gagret. PW-18 ASI submitted an application Ext. PP before him seeking his opinion about the physical and mental condition of Pawan Kumar injured to make the statement. Dr. Bhardwaj recorded his opinion mark Ext.PP/1 to state that the injured was in fit condition to make statement. ASI PW-18 then recorded the statement of the injured mark Ext.PR in which it had been clearly stated by him that at the time of the occurrence he was a driver of a taxi employed by PW-1 Manohar Lai and was residing in the house of his employer. On the night of occurrence when he along with PWs 2 and 3 was sleeping in a Verandah of the house of PW-4 at about 2 0 clock in the night, the accused struck blows of drat or with some sharp edged weapon on his right hand and left side of his face leading to the head. He immediately shouted whereupon the accused fled away from the scene of occurrence along with 2/3 accomplices who were standing out side the Verandah of the house. He also stated that about 2/3 years prior to the present occurrence, the accused administered beatings to him because he made a complaint to Raghubir Singh about the incident of teasing of Raghubir s daughter by the accused. He also lodged a complaint against the accused at Police Station, Amb as he apprehended danger to his life from the accused because of the said incident. This statement of the accused was verified having been made in his presence by Dr. Bhardwaj who appended his admitted signautre marked PR/1 on it. On the basis of the said statement, the First Information Report Ext. PB came to be registered by PW. Ashok Kumar. In the face of clear and unambiguous evidence of Dr. Bhardwaj, who verified the statement Ext.PR of the injured recorded by PW-18 and corroborated by PW-11, we are not inclined to accept the contention of the learned counsel for the accused that the said statement in fact was not made by the injured or it was a procured document produced by the Police. Bhardwaj, who verified the statement Ext.PR of the injured recorded by PW-18 and corroborated by PW-11, we are not inclined to accept the contention of the learned counsel for the accused that the said statement in fact was not made by the injured or it was a procured document produced by the Police. We do not deem it necessary to consider whether statement Ext.PR can be treated as dying declaration or not as the said question in our view would not necessarily arise for our determination in the peculiar facts of this case. Contention No. 2 13. The accused made disclosure statement under Section 27 of the Evidence Act in the presence-of one Raghunath and PW-8 Multan Singh. In his statement PW-8 stated that he was Pradhan of Gram Panchayat Gondpur Banehra at the relevant time. He knew both the accused and the deceased as they belong to his Panchayat. He went to the hospital where the accused was undergoing treatment. On his asking the accused told him that he had concealed a drat (weapon of offence) with which he inflicted injuries on Pawan Kumar when Pawan Kumar was sleeping in the Verandah at Nangal Jarialan. Disclosure statement was recorded by Station House Officer in his presence which he signed as one of the marginal witnesses along with Raghunath. The testimony of PW-8 has been corroborated by Inspector PW-19 who recorded the disclosure statement Ext. PM was never made by the accused in his presence. A suggestion was also denied by him that the accused is from the other party and he always opposed this witness in the election whereas the deceased was his supporter. The testimony of this witness has remained un-shattered and un-impeached so far making of the disclosure statement by the accused about concealment of drat used in the crime. The recovery of the weapon of offence was effected by the Investigating Officer PW-19 from the backside of the cattle-shed of Sh. Dharam Singh, grandfather of the accused at village Gondpur Benhara in the presence of PW-10 Tilak Raj and one Pritam Chand. Village Benhara is located in the State of Punjab. It has come in the evidence of PW-10 that the accused took out one Drat from beneath the heap of wood kept in the verandah of the house of grandfather of the accused. Village Benhara is located in the State of Punjab. It has come in the evidence of PW-10 that the accused took out one Drat from beneath the heap of wood kept in the verandah of the house of grandfather of the accused. The weapon recovered by the accused was taken into possession by the Police. He has identified Drat (ext.P-12) in the court. Nothing has been elicited from the cross-examination of this witness that the weapon of offence was not recovered by the accused from the said place. His evidence has been corroborated by PW-19 who prepared the sketch (Ext.PN) of weapon of offence which was signed by PW-10 and Primtam chand. In the teeth of the evidence of PWs. 10 and 19, the contention of the learned counsel for he accused that the prosecution has failed to prove the recovery of the weapon of offence cannot be accepted.Contention No. 3. 14. PW-11 Dr. N.K. Bhardwaj found the following two injureiw on the person of the injured when at the first point of time he medically examined the injured: 1. Spindle shape incised wound 8 cm x 2.5 cm in centre, tappering ends lying on left side face just away from nose towards ears. Regular margin, clotted blood was present. No underline creputus heart. 2. Incised wound on right wrist obliquely placed 9cm x 3.5 cm in centre. Margins regular, wound retracted, partially amputated red in colour, clotted blood clots present along with active bleedings from deeper vessel. No movement at fingers. 15. According to the opinion of Dr. Bhardwaj injury No.l was found attempt to death while injury No.2 was grievous caused with sharp edged weapon within probable duration of six hours. Injury No. 1 was on the vital part of the body and it could be proved fatal. 16. PW-1 Dr. Naval working as junior resident in PGI Chandigarh has stated in his cross-examination that injury on the right hand and left cheek of the victim of assault was on his non-vital part of the body. It has come in the evidence of PW Dr. Aditya Kumar Sharma that vial part of the body is brain which is above the neck of the body. In the face of the specific opinion of PWs. Dr. Naval, Junior resident and Dr. It has come in the evidence of PW Dr. Aditya Kumar Sharma that vial part of the body is brain which is above the neck of the body. In the face of the specific opinion of PWs. Dr. Naval, Junior resident and Dr. Aditya Kumar Sharma, Assistant Professor that all the parts of the body above neck are vital parts and right hand and left cheek on which the injuries were found on the person of the injured are not vital parts of his body, the evidence of Dr. Bhardwaj that the injuries on the left side face just away from the nose towards ear was vital part of the body of the injured cannot be accepted. Therefore this contention of the learned counsel is wholly unsustainable. Contention No.4 . 17. The prosecution has examined PWs 2 and 3 the two eye-witnesses of he incident. PW-2 has turned hostile to the prosecution. It has come in his cross-examination that Pawan Kumar and PW-3 were employed as drivers of he taxi and tractor respectively by PW-4. Pawan Kumar (since died) and PW-3 on 27.8.1997 in the night slept in the verandah of the house of PW-4 on single cot whereas he slept on the adjoining separate cot. He has admitted that at about 2 a.m. in the night the injured raised cries Mar-dia and immediately PW-3 switched on the electric light. He saw blood oozing out from the wounds sustained by Pawan Kumar on his hand and face. He also admitted that injured Pawan Kumar and PW-3 told him that Yogesh Kumar accused ran away after giving Drat blow on the person of the injured He along with PW-3 telephoned PW-4 from the shop of one Ashok Kumar. He identified his signature on Memo Ext.PF vide which Police took into possession blood stained Chader (khesi) from the bed and soil lying beneath the cot. However, this witness categorically denied the suggestion of the defence that there were no electric fittings in the verandah. The evidence of this witness cannot be brushed aside in its entirety. He has admitted that the injured was inflicted injury on his face and hand and the name of the accused was told to him by the injured and PW-3. His presence at the scene of the occurrence is also not doubted. The evidence of this witness cannot be brushed aside in its entirety. He has admitted that the injured was inflicted injury on his face and hand and the name of the accused was told to him by the injured and PW-3. His presence at the scene of the occurrence is also not doubted. The evidence of this witness is acceptable to the extent he has supported the case of the prosecution. 18. The evidence of PW-3 Dalbir Singh has been corroborated by PW-2 to the extent that both these witneses along with injured were sleeping in the verandah of the house of PW-4 at village Nangal-Jarialan. PW-3 categorically deposed that at about 2 a.m. in the night he was sleeping jointly with Pawan Kumar on one cot whereas PW-2 was sleeping by their side on the second cot. The injured sustained" injury on his head and face and hot blood feet on his face oozing out of those injuries. The injured raised cries and immediately he switched on the electricity light. He saw blood stained Dart in the hand of the accused, who ran away from the scene of the occurrence. He informed PW-1 on telephone about the incident who immediately came on the spot. He along with PW-4- took the injured to the Primary Health Centre Gagret in a vehicle and thereafter PW-4 went to the Police Station to lodge complaint. The statement of the injured was recorded by the Police in the hospital in the presence of the Doctor. He along with PW-4 took the injured to PGI Chandigarh and got him admitted there. The injured died in PGI Chandigarh after about seven days. On 27.8.1998 during day time he had gone to bring the stones from the khud in the tractor where the accused Yogesh Kumar met him and asked him not to take stones from there. He disclosed this fact to PW-4 with whom he was working as driver on the tractor. On the same evening the accused came to Nangal Jarialan and started calling bad names to PW-4. He denied the suggestion of the defence that he in the company of PW-4 gave beatings to the accused. He also denied further suggestion that some unknown person caused injury to the injured. On the same evening the accused came to Nangal Jarialan and started calling bad names to PW-4. He denied the suggestion of the defence that he in the company of PW-4 gave beatings to the accused. He also denied further suggestion that some unknown person caused injury to the injured. He also denied the suggestion that since during day time the accused stopped him from lifting the stones from the Khud and it was on account of that fact that he in connivance with PW-1 falsely implicated the accused in the commission of the crime. It has come in the evidence of PW-4 that on 27.8.1998 PW-3 told him that the accused did not allow him to lift the stone from the khud. In the evening the accused come to the Bazar to the Nangal Jarialan and started calling bad names to him. He corroborated the versions of PWs 2 and 3 that at about 2/2.15 a.m. in the night on 27.8.1998 he received telephonic message from PW-3 that the accused had caused injuries with some weapons to Pawan Kumar and when he reached on the spot, PW-3 told him that the accused gave Drat blow to the injured. He along with PW-3 took the injured to the hospital. Doctor told that he should inform the Police and immediately he informed the Police about the occurrence. The statement of the injured was recorded by the Police in his presence and in the presence of Doctor. He along with PW-3 took the injured to PGI Chandigarh where he died on the night of 4.9.1998. Inquest report (Ext.PJ) was prepared by the Police on which he appended his signature. He denied the suggestion of the defence that he along with PW-3 gave beatings to the accused in the evening on 27.8.1998. He stated that he was not acquainted with the accused and therefore, there was no question of his relation being strained or cordial with the Accused. 19. On re-appraisal and re-consideration of the entire evidence of PWs.2, 3 and 4 referred here in above, the prosecution has clearly, satisfactorily and convincingly proved that it was the accused and none else who assaulted Pawan Kumar on the night of 27.8.1998 with Drat. The testimony of these witnesses finds corroboration from the medical evidence of Dr. 19. On re-appraisal and re-consideration of the entire evidence of PWs.2, 3 and 4 referred here in above, the prosecution has clearly, satisfactorily and convincingly proved that it was the accused and none else who assaulted Pawan Kumar on the night of 27.8.1998 with Drat. The testimony of these witnesses finds corroboration from the medical evidence of Dr. N.K. Bhardwaj who found two injuries on left side face just away the nose towards ears and right wrist of the injured when the injured was medically examined at about 5.30 a.m. immediately after the occurrence The defence of the accused that since he obstructed PW-3 during day time on 27.8.1998 from lifting stones from the khud, both PWs3 and 4 have falsely implicated him in this case has been rightly found not probable and believable by the learned trial Judge. The Chemical Examiner in his report (Ext.PZ/1) found blood on the Drat but because the blood had gone waste it could not be further examined for verifying the blood group etc. PWs.2,3 and 4 have given true account of the occurrence and their evidence has remained unblemished and unimpeached. The learned trial Judge has rightly relied upon the evidence of the said witnesses to hold that it was the accused who assaulted Pawan Kumar on the day, time and place of occurrence. The ratio of the judgment in Baital Singh Sc Anr. v. State of U.P. AIR 1990 Supreme Court 1982 will be of no help to the accused to advance his defence in this case. In that case their Lordships held that where the accused charged for murder was not assigned any role by the eye-witnesses in their statements under Section 161, Criminal Procedure Code, however, at the time of trial the eye-witnesses deposed that the accused gave injuries by a lathi, there would be suspicion so far as for presence of that accused was concerned, and he would be entitled to be acquitted on benefit of doubt. In Ram Narain Jaggar Singh & Ors. v. The State of Punjab, AIR 1975 Supreme Court 1727 it has been held that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. v. The State of Punjab, AIR 1975 Supreme Court 1727 it has been held that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. Further, it is observed that if the evidence of the witnesses for a prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. Again in Ahmed Bin Salam v. State of Andhra Pradesh, AIR 1999 Supreme Court 1617 it is held thus: "Where in a murder trial there were material contradictions in evidence of eye-witnesses had stated name of certain other person to have thrown bomb towards deceased persons in his statement before police, however, in Court he changed his version and named accused, the second eye witness also changed his version before police in his delayed examination under Section 161. Cr.P.c. (for which there was no explanation by police) and named accused in. his deposition before Court, while the third eye-witness identified the accused in a test identification parade which could not be held to be test identification parade, and one more eye-witness though identified accused it was during trial in Court after two years from occurrence and when no test identification parade was held by police though he did not state that he knew the accused, the conviction of accused under Section 300 was liable to be set aside." 20. In the present case as stated hereinabove, eye-witness account of PWs.2 and 3 is clear, consistent and convincing and we find no significant and material discrepancy or contradictions in the evidence of these witnesses who were present on the scene of the occurrence at the time of receiving injuries by Pawan Kumar at the hands of the accused. The accused has been clearly and unequivocally named by the injured in his statement Ext.PR made before the Investigation Officer in the presence of Dr. Bhardwaj. He has been identified by PW-3 who was armed with blood stained Drat at the scene of occurrence when this witness switched on the electricity light. The accused has been clearly and unequivocally named by the injured in his statement Ext.PR made before the Investigation Officer in the presence of Dr. Bhardwaj. He has been identified by PW-3 who was armed with blood stained Drat at the scene of occurrence when this witness switched on the electricity light. The accused had fled away from the scene after striking Drat blows on two parts of the body of the victim. His name was categorically told to PW-2 as an assailant by the victim and PW-3. Therefore, this contention raised is rejected. Contention No. 5 21. The prosecution has tried to attribute the motive to the accused to commit the offence by placing reliance on the evidence of PWs 3,4 and PW-6 Raghubir Singh. PWs 3 and 1 stated that the accused had notice to murder the injured because during day time on the day of the occurrence he abused both these witnesses and also entertained ill will against them because the accused obstructed PW-3 from lifting stones from the khud. On consideration of the evidence of these witnesses, in our view there is not an iota of evidence that it was the injured Pawan Kumar who had quarreled with the accused either on the date of the occurrence or at any other point of time. However, PW-6 stated that in the year 1995 his daughter Saroj was studying in the school when he was told by victim Pawan Kumar that the accused tried to tease Saroj. He made complaint to the Panchayat against the accused and later on the matter was compromised in the Panchayat as the accused tendered apology. The incident of teasing the daughter of PW-6 by the accused was witnessed by Pawan Kumar in the year 1995 and it cannot be reasonably and satisfactorily held that the accused had entertained some grudge against the injured on account of that incident and tried to take revenge in the year 1998 after the elapse of about 3 years. Therefore, it cannot be held that the accused had any motive to commit murder of Pawan Kumar. This contention deserves acceptance. 22. Therefore, it cannot be held that the accused had any motive to commit murder of Pawan Kumar. This contention deserves acceptance. 22. FIR Ext.PB came to be registered by Head Constable PW-14 Ashok Kumar at Police Station, Gagret at 5.15 a.m. on 28.8.1998 on the statement ext.PR made by the injured to the Investigating Officer at the hospital and no FIR was lodged by PW-4 as contended by learned counsel for he defence. PW-4 informed the Police at about 4.15 a.m. on 28.8.1998 and the said information was recorded by Constable No.314 Bal Krishan in Daily Diary export Ext.PU. PW-4 informed the Police that Pawan Kumar was engaged by him as driver on his Maruti Van and at about 8/9p.m. on 28.8.1998 after taking meals Pawan Kumar slept in the verandah of his house and himself went to sleep. The accused inflicted injuries to Pawan Kumar with some sharp edged weapon who was brought to Public Health Centre Gagret in his vehicle for treatment and the Police must take action in the matter. In his deposition before the court he stated that he slept in his house whereas his drivers namely Pawan Kumar and Dalbir Singh slept in the verandah of his house. It was PW-3 Dalbir Singh who informed him about the incident on telephone at about 2/2.15 a.m. naming the accused who assaulted Pawan Kumar during night time. We find no significant and material discrepancy or improvements in the evidence of PW-4 which will throw out the case of the prosecution about its correctness and truthfulness. It is no doubt, true that in the site plan Ext.PW the Investigating Officer has not mentioned about electricity connection in the house of PW-4 but PWs 2 and 3 have stated in clear and unambiguous words that there was electricity connection in the house of PW-4 when PW-3 switched on the electricity light of the verandah. The accused was witnessed by PW-3 running from the scene of the occurrence armed with blood stained Drat. Non-mention of electricity connection in the house of PW-1 by the Investigating officer in site plan is not fatal to the prosecution case raising any doubt about the existence of electricity connection in the verandah of the house of PW-4. This contention therefore, is not tenable and sustainable. 23. Non-mention of electricity connection in the house of PW-1 by the Investigating officer in site plan is not fatal to the prosecution case raising any doubt about the existence of electricity connection in the verandah of the house of PW-4. This contention therefore, is not tenable and sustainable. 23. The learned trial Judge on consideration of the entire evidence on record convicted the accused for the offence punishable under Section 302IPC. On reconsideration of the entire material on record we find that the conviction of the accused under Section 302 IPC is wholly unsustainable. In order to constitute an offence of murder a person has to cause death by doing an act with the intention of causing death or with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incuring the risk of causing death or such injury as aforesaid. 24. In the present case as noticed above only two injuries were inflicted at the left side of the face and right hand wrist of the injured by the accused with Drat which is sharp edged weapon. Those injuries were not found on the vital part of the body of the injured by PW-1 Dr. Naval. Dr. Naval brought original record of admission of Pawan Kumar from P.G.I. He signed death summary certificate (Ext.PB) of Pawan Kumar who died in PGI. Death certificate (Ext.PG) of Pawan Kumar was issued by Senior Doctor Rajender Prashad Dass whose signature Dr. Naval has identified. Dr. Naval stated in his cross- examination that aspiration pneomonitis means that the patient had inhailed something sub-consciously which caused inflammation of the lungs which in the case of Pawan Kumar proved fatal to him. PW Dr. Death certificate (Ext.PG) of Pawan Kumar was issued by Senior Doctor Rajender Prashad Dass whose signature Dr. Naval has identified. Dr. Naval stated in his cross- examination that aspiration pneomonitis means that the patient had inhailed something sub-consciously which caused inflammation of the lungs which in the case of Pawan Kumar proved fatal to him. PW Dr. Aditya Kumar Sharma conducted the post mortem examination of the dead body of Pawan Kumar on 5.9.1998 at 12.30 p.m. He recorded as many as 9 injuries in the post mortem report (Ext.PAA) signed by him. According to the opinion of Dr. Aditya Kumar Sharma the cause of death of Pawan Kumar was septicemic shock as a result of injuries given at page Nos.3,5 and 7 of the post mortem report. In his cross- examination he said thus: "The septicemic means that the infection gets into the blood stream circulation, it is correct that it means that persistence multiplication of living bacteria in the blood stream. It is the result of the infection of the wound. Infection of the wound depend on the age of the injured, hygienic condition of the place, physique of the injured and mutrition of the injured and any other previous ailmet of the injured. I have not attended the patient when he was alive and, therefore, I cannot comment if the mishandling of the patient by the medical expert might have led to the infection of the wounds. Aspiration means inhalation of foreign material in the wind pipe pneumonitic means inflammation of the lungs which can be caused by many causes. One of the cause may be taking of foreign matter." The medical evidence of Dr. Naval and Dr. Aditya Kumar Sharma would prove that injured Pawan Kumar had not died because of the two injuries sustained by him at the hands of the accused but because of inhaling of some foreign matter which caused inflammation of the lungs of Pawan Kumar and proved fatal to him. In the expert opinion of the Doctors, the death of deceased Pawan Kumar cannot be attributed to the accused and therefore, the proseuction has not proved the essential ingredients of the offence of murder against the accused. In the expert opinion of the Doctors, the death of deceased Pawan Kumar cannot be attributed to the accused and therefore, the proseuction has not proved the essential ingredients of the offence of murder against the accused. The prosecution has not made any attempt to prove as to how the other seven wounds had appeared on the body of deceased Pawan Kumar when it was its clear case that only two injuries were inflicted by the accused on his body and noticed by Dr. Bhardwaj when he medically examined the victim immediately after assault. Therefore, the conviction of the accused under Section 302IPC recorded by the learned trial Judge cannot be sustained. We would acquit the accused on the charge of murder and alter the conviction to under Section 326 IPC. In the circumstances, a sentence of 5 years rigorous imprisonment and to pay fine of Rs.2,000/- would meet the interest of justice considering the age of the accused who at the time of recording of his statement under Section 313 Cr.P.c. in the year 1999 was 25 years and other attending circumstances such as parts of the body of the injured on which injuries were inflicted by him. 25. No other point has been urged before us by the learned counsel appearing on behalf of the parties. 26. In the result the appeal is partly allowed. The conviction of the accused under Section 302 IPC and sentence of life imprisonment are set aside. The accused is convicted under Section 326 IPC and is sentenced to undergo 5 years rigorous imprisonment and to pay fine of Rs.2000/-. In default of payment of fine he shall suffer rigorous imprisonment for three months. The accused is in jail. A copy of this judgment shall be sent by the Registry office to the accused through Superintendent Model Central Jail Nahan.