JUDGMENT 1. - The meaningful question that arises in the instant appeal is that in view of the injuries sustained by the deceased what offence is made out against the appellant. 2. The learned Trial Judge in Sessions Case No. 33/1998 vide judgment dated July 6, 2001 convicted and sentenced the appellant for the offence under Section 302 Indian Penal Code to suffer Imprisonment for life and fine of Rs. 1,000/- in default to further suffer three months simple imprisonment. 3. The incident occurred on September 4, 1998. The allegation against the appellant was that he committed murder of his uncle Sheonath. 4. The case of prosecution rests on the testimony of injured eye-witnesses Phooli Devi (PW4) and Sanwal Ram (PW2), who are respectively daughter-in-law and brother of deceased. The age of deceased was 80 years and as per post mortem report (Ex.P-12) the deceased sustained following ante mortem injuries and cause of his death was shock and haemorrhage:- "1. One swelling 3" x 3" on left cheek extending upto the infront of left ear & Lt. Nostril colour dark red. 2. One lacerated wound on upper & lateral part of swelling size 1/2" x 1/2" x 1/2". 3. One swelling-Bruise-deformity of left arm lower part size 3" x 1/2" colour dark red. 4. One swelling-Bruise on dorsal aspect of upper part of left forearm 3" x 1" one lacerated wound on the top of swelling size 3/4" x 1/2" x 1/4" Bruise dark red in colour." 5. Dr. B.S. Dadarwal (PW8) in his cross-examination deposed that the said injuries were not sufficient to cause death in the ordinary course of nature. Dr. B.S. Dadarwal has also stated that the injuries could be caused on account of fall from the roof. 6. We have heard rival submissions and scanned the record. 7. On a close scrutiny of the testimony of Smt. Phooli Devi (PW4) and Sanwal Ram (PW2) we find them reliable and hold that the appellant inflicted injuries on the person of deceased. 8. In order of bring the case under clause thirdly of Section 300 Indian Penal Code it was incumbent upon the prosecution to establish that the appellant committed the act with the intention of causing bodily injury to Sheonath and the injuries intended to be inflicted were sufficient in the ordinary course of nature to cause death. 8. In order of bring the case under clause thirdly of Section 300 Indian Penal Code it was incumbent upon the prosecution to establish that the appellant committed the act with the intention of causing bodily injury to Sheonath and the injuries intended to be inflicted were sufficient in the ordinary course of nature to cause death. But in the instant case from the post mortem report and the statement of Dr. B.S. Dadarwal we find that the injuries were not sufficient to cause death in the ordinary course of nature. Looking to the nature of injuries sustained by the deceased we find that the intention of the appellant was to cause such bodily injury as is likely to cause his death and the case against the appellant does not travel beyond Section 304 part II Indian Penal Code. 9. As a result of the above discussion we partly allow the appeal of appellant Deshram and set aside the conviction of appellant under Section 302 Indian Penal Code, instead we convict him under Section 304 Part II Indian Penal Code. The appellant is in the custody since September 7, 1998 and ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Deshram who is in custody shall be set at liberty forthwith if not required in any other case.Appeal partly allowed. *******