1. This Criminal Appeal is directed against the judgment and order dated 30.12.2000 passed by the learned Sessions Judge, Udhampur in File No.48/Session, titled State Vs. Kali Dass, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- for commission of offence under Section 302 RPC. In default of payment of fine, the appellant to undergo simple imprisonment for a period of six months. He has also been sentenced to undergo rigorous imprisonment for three years under Section 201 RPC and to pay fine of Rs.500/-. In default of payment of fine, to undergo simple imprisonment for a period of three months. Both the sentences have been ordered to run concurrently. 2. The prosecution story, in brief, is that PW-Labu Ram filed a written complaint stating therein that he had come to village ˜Panger™ where his in-laws™ house is situated. Smt. Vidya Devi-his sister has also been married in the same village, to accused-Kali Dass. Her daughter, namely, Rekha, aged about 10/12 years has died. On coming to know that Rekha, aged about 10/11 years, daughter of his sister has died, he came to the house of his sister. He saw that his brother-in-law, Kali Dass, himself was taking the deceased-Rekha for cremation. He inquired from his sister the cause of death of the deceased- Rekha. She narrated the whole incident and told that the accused with criminal intention has killed her daughter. The complainant proceeded towards cremation ground and saw the dead body having number of injuries. On cremation ground, many people of the village including Numberdar were present. He told them that deceased Rekha has been killed by her father and he should be restrained from cremating the dead body as he is proceeding to inform the Police. He proceeded to the Police Station and reached there at about 8.30 p.m. FIR No.79/98 was lodged with Police Station, Ramnagar and the Police during same night reached on the spot at about mid-night and investigation commenced. 3. During investigation it was found that PW-Thakur Dass accused Rekha of committing theft and complained to her father/accused Kali Dass. Accused has beaten his daughter ruthlessly and when her mother intervened, the accused abused her also. The deceased succumbed to the injuries. She was cremated despite resistance shown by Labu Ram, maternal uncle of the deceased. 3. During investigation it was found that PW-Thakur Dass accused Rekha of committing theft and complained to her father/accused Kali Dass. Accused has beaten his daughter ruthlessly and when her mother intervened, the accused abused her also. The deceased succumbed to the injuries. She was cremated despite resistance shown by Labu Ram, maternal uncle of the deceased. On 28.08.1998, site plan of the place of occurrence was prepared at the instance of mother-Vidya Devi. Wearing apparels, burnt bones and ashes of the deceased were seized and sealed alongwith ring and kept on the superdnama. Disclosure statement of the accused was recorded on 30.08.1998 and at his instance weapon of offence was also recovered. Statements of witnesses under Section 161 Cr.P.C. were recorded and challan was presented. 4. The accused was charge-sheeted on 03.02.1999 for the alleged commission of offence under Section 302/301 RPC. He pleaded not guilty and was put to trial. 5. The prosecution examined PWs-Labu Ram, Vidya Devi, Mohan Lal, Surinder Dass, Thakur Dass, Munshi Ram, Satya Devi and Rajinder Singh, Investigation Officer, to prove the charge against the accused. 6. On appreciation of evidence and hearing learned counsel for the parties, trial court has recorded the finding of conviction and awarded sentence of imprisonment for life to the accused for committing the murder of his daughter-Rekha. 7. The judgment of the learned Sessions Judge has been challenged on the grounds that the trial court has not properly appreciated the evidence and discrepancies pointed out before the trial court were fatal to believe the story of the prosecution. Therefore, the learned trial court has recorded erroneous findings to come to the conclusion of conviction and sentence. 8. We have heard the learned counsel for the parties and perused the record. Learned counsel for the appellant has drawn attention of the Court on the statements of the prosecution witnesses, to point out the discrepancies, for its re-appreciation. To appreciate the prosecution story, we would like to appreciate the statements of the witnesses. 9. PW-Labu Ram, is the complainant and maternal uncle of the deceased and brother of Vidya Devi-mother of the deceased. He has stated in his statement that out of the wedlock of her sister and accused Kali Dass, five children are born. The deceased was about 10/11 years of age at the time of her death. 9. PW-Labu Ram, is the complainant and maternal uncle of the deceased and brother of Vidya Devi-mother of the deceased. He has stated in his statement that out of the wedlock of her sister and accused Kali Dass, five children are born. The deceased was about 10/11 years of age at the time of her death. The relation between his sister, and accused Kali Dass had never remained cordial. On 27.08.1998, he had gone to village ˜Panger™ to his in-laws™ house and came to know there about sudden death of deceased-Rekha. He went to the house of his sister. On reaching there, he saw that the accused alongwith other 4/5 persons was taking dead body of deceased-Rekha towards cremation ground. He inquired from his sister about the cause of death of her daughter and he was told that the accused has tortured her daughter to death on the allegations of committing theft. He rushed towards the cremation ground and examined the dead body of deceased-Rekha and found number of injuries inflicted on her person. While he was examining the dead body, the accused abused and threatened him. He requested the people gathered there to restrain the accused from cremating the corpse as he is proceeding to report it to the Police. He reached the Police Station, Ramnagar at about 8/9 p.m. and filed a written report exhibit EXPWLR. FIR was registered and Police reached on the spot by mid-night. By that time, dead body had already been cremated by the accused. Police seized red chilly powder from the spot, lying near the pillar vide seizure memo EXPWLR/3. Police also seized bones and ashes of the deceased from cremation ground vide seizure memo EXPWLR/4. The accused was arrested and he made disclosure statement with regard to ˜Sota™ (Stick) with which he had inflicted injuries on the deceased-Rekha. Recovery of ˜Sota™ was made at the instance of the accused vide seizure memo EXPWLR/5 and the witness has proved the disclosure statement and recovery memo EXPWLR/6. In his cross-examination, he stated that he inquired from his sister the cause of death on reaching her house. He tried to stop the accused for carrying his daughter for cremation. About 50/60 persons had gathered at cremation ground and he examined the dead body in presence of these persons. The deceased had sustained injuries on her chest and arms. In his cross-examination, he stated that he inquired from his sister the cause of death on reaching her house. He tried to stop the accused for carrying his daughter for cremation. About 50/60 persons had gathered at cremation ground and he examined the dead body in presence of these persons. The deceased had sustained injuries on her chest and arms. Eyes of the deceased were red in colour, upon which he requested Numberdar and other persons present on the spot not to allow the accused to lit the pyre. He further stated that 5/6 officials of the Police and SHO Police Station, Ramnagar came on the spot. When accused was arrested, Police inquired from him as to why he has cremated her daughter, to which he replied that his daughter had vomited before her death. Seizure memos were prepared by the Police on the next day. The clothes of deceased were produced before the Police by his sister. Upon disclosure statement of the accused and at the instance of the accused, ˜Sota™ was also recovered by the Police. 10. PW-Vidya Devi mother of the deceased is the only eyewitness to occurrence. She has stated that PW-Thakur Dass had leveled allegations of committing theft of Rs.25/- against her daughter before her husband-accused, upon which accused returned to his home and inquired about his daughter from the witness. She said that daughter had gone to fetch water from nearby spring, upon which the accused picked up a Sota� and went to find out her and took her daughter beating to his shop. Witness was also present there. At the shop, accused fastened her with a pillar and also folded and fastened her hands on her backside and started beating her mercilessly. He administered beating with ˜Sota™ for recovery of theft amount. When she intervened, accused also beat her and turned her out. While beating, accused inquired about theft. The deceased told that she has not committed any theft. Accused took red chilly powder and put the same into the eyes and mouth of the deceased. The deceased was crying and weeping. She went there and put water in her mouth. While deceased was being beaten mercilessly and ruthlessly by the accused, she told that purse has been kept in the house, upon this accused released her and took the deceased to the house. The deceased was crying and weeping. She went there and put water in her mouth. While deceased was being beaten mercilessly and ruthlessly by the accused, she told that purse has been kept in the house, upon this accused released her and took the deceased to the house. The purse could not be found and accused again fastened her with pillar in his house with parna (a piece of cloth used as covering for head or tieing it around neck), and again started beating with ˜Sota™. He remained beating for about two hours. The witness tried to save but accused pushed her and turned her out. The daughter under such frustration of beating stated that she has kept the purse in the street. The accused took the daughter to street but purse could not be found there also. The accused again took the daughter inside the house and again fastened her with the pillar. The accused started beating her mercilessly. The witness has stated that in her presence, the accused kept chilly powder in a cup and also brought a blade and again threatened the deceased to state truth otherwise he will not spare her. Helpless deceased could not state anything about purse. He again started beating and while such beating, the eyes of the deceased came out and her neck slided down and then only the accused stopped beating and released the deceased. The witness saw that the tongue of her daughter had came out and she had died. The accused put chader on the deceased. Mohan Lal, her son, told her that he is going to the house of Pandit on the instructions of the accused to bring Sankh (counch shell). Accused and PW-Vidya Devi gave bath to the deceased. The deceased had injuries all over her body. In the meantime, her brother Labu Ram also came. He inquired the cause of death and while weeping she narrated the incident. The police came at about 12 p.m. She narrated the incident to the police. Police seized wearing apparels of the deceased and parna which she had washed on the instructions of the accused. She has identified parna in the court. She has also identified the Sota�. She has been cross-examined and has stated that PW-Mohan Lal has also slapped the deceased. Police seized wearing apparels of the deceased and parna which she had washed on the instructions of the accused. She has identified parna in the court. She has also identified the Sota�. She has been cross-examined and has stated that PW-Mohan Lal has also slapped the deceased. Mohan Lal came to the house during recess and at that time, the accused had taken the deceased to the house. In his presence also the accused was beating the deceased. At the shop the deceased was kept fastened with a pillar for an hour and chilly powder was put in her eyes and mouth in her presence. The deceased had never vomited. From the shop, the deceased was taken to the house. During the time of beating, witness was present there. Deceased died in her presence. Distance of the shop and house is about 100 yards. The deceased had injuries on arms, back, legs and blood was oozing from injury caused by beating on the backside of the head. The accused did not permit any body to go near the deceased or to narrate the incident and cause of death to the people who came to the house. After cremation of the dead body, the accused ran away from the house. 11. PW - Thakur Dass has stated that he was grazing his cattle where some body informed him about the commission of theft in his house. He inquired from the deceased as to whether she has committed theft. On 3rd day while he was going towards Ramnagar he met Kali Dass-accused in the way from whom he inquired as to whether he has been providing any expenses to his daughter. The accused told him that his daughter has her own cash but still he would inquire from her. The witness stated that when he returned his home in the evening he came to know about the death of daughter of the accused. In cross-examination, he stated that he has not lodged any report about theft. 12. PW-Munshi Ram, Numberdar of the village, has stated that he came to know about death of daughter of the accused. He was going to the house of the accused alongwith other locals and saw the accused carrying dead body of the deceased towards cremation ground. In cross-examination, he stated that he has not lodged any report about theft. 12. PW-Munshi Ram, Numberdar of the village, has stated that he came to know about death of daughter of the accused. He was going to the house of the accused alongwith other locals and saw the accused carrying dead body of the deceased towards cremation ground. He also accompanied the accused and on the cremation ground Labu Ram, brother-in-law of the accused, came there and stated that the deceased be not cremated because he is going to Police Station to lodge the report, upon this accused chased him to administer beating. Accused was caught by people there and PW-Labu Ram left for police station. He told the accused that till police comes dead body be not cremated. Despite that the accused and his son did not bother about it and cremated the dead body. The police came during night and accused was caught next day by the police. The bones and ashes and wearing apparel were seized vide seizure memos EXPWLR-2, EXPWLR-3, EXPWLR-4 respectively. He has further stated that the accused has made disclosure statement with regard to ˜Sota™ with which the deceased had been beaten and at his instance ˜Sota™ has been recovered. He has proved the disclosure statement and recovery memo. He has further stated that the police during investigation came into the house of Munshi Ram. He was called being the Numberdar of the village. 13. PW - Surinder Dass aged about 15 years, a student, has stated that during recess, i.e. at about 10 a.m. he had come at his home for taking meals. While he was going towards his house, he saw Rekha deceased, accused and his wife coming from the shop towards their house. The accused was having ˜Sota™ in his hand. When he came to his house after close of the school i.e. after 1 p.m., his sister Radha inquired the cause of weeping from the mother of the deceased, who told that Rekha has died. He went to the house of Kali Dass at about 2 p.m. where people had assembled there. Police had come there during night and recorded his statement. 14. The son of the accused has also been cited as prosecution witness who has not supported the prosecution story and was declared hostile. 15. He went to the house of Kali Dass at about 2 p.m. where people had assembled there. Police had come there during night and recorded his statement. 14. The son of the accused has also been cited as prosecution witness who has not supported the prosecution story and was declared hostile. 15. We have heard the learned counsel for the parties and perused the record. Learned counsel for the appellant has submitted that there was discrepancies in the statements of the prosecution witnesses. Appellant™s son who according to PW-Vidya Devi has also seen the accused while beating the deceased when he came to home during recess in the school has not supported the story of the prosecution. PW-Vidya Devi had strained relations with her husband, therefore, she has involved the accused. He has also pointed out that PW-Thakur Dass has not stated that the deceased has committed theft of Rs.25/- in his house. His submission is that motive of administering beating was to find out truth of theft and not to kill her, therefore, there was no intention of killing the deceased. The conviction and sentence under such circumstances was not warranted and trial court has erroneously appreciated the evidence and recorded the conviction and awarded sentence for life. 16. On appreciation of evidence, we find out that PW-Thakur Dass has specifically complained while pointing out that the accused does not give any expenses to his daughter which pointedly can be spelt out that it relates to money. On his pointed reference of money to the accused, the accused told Thakur Dass that he will find out from his daughter and tell him. This happened in the morning of 28th August 1998 while PW-Thakur Dass was going to Ramnagar and accused met him in the way. Thereupon the accused went to home and inquired from PW-Vidya Devi where Rekha, his daughter, has gone and on her being told that she has gone to the spring to fetch water, he picked up a ˜Sota™ and went towards the spring and brought the daughter. Thereupon the accused went to home and inquired from PW-Vidya Devi where Rekha, his daughter, has gone and on her being told that she has gone to the spring to fetch water, he picked up a ˜Sota™ and went towards the spring and brought the daughter. It has come in the evidence of PW-Vidya Devi, who is the only eye witness, that when deceased told the accused that she has kept the purse in the house, he released the deceased and brought to the house and when he was beating in the house, the deceased told the accused that she has kept the purse in the street. He released the deceased and brought her to street, therefore, only reason and motive of beating was to find out truth of theft, therefore plea of the learned counsel for the appellant-accused is that there was no motive of killing the deceased. So far as commission of offence is concerned, it is seen from the evidence that mother of the deceased was abused and pushed out while her helpless daughter of tender age was being beaten to death by the unfortunate father. She has narrated the conduct of the accused. The accused has mercilessly and ruthlessly beaten her daughter till her death. PW-Vidya Devi has been supported by PWs-Surinder Dass and Munshi Ram and Labu Ram. 17. The conduct of the accused is further relevant which makes out that the accused was in hurry to destroy the evidence so that the offence committed by him may not come to light. He after killing the deceased in the way narrated by PW-Vidya Devi immediately took the dead body for cremation. Per chance PW-Labu Ram, maternal uncle of the deceased, came and saw the injuries on the dead body of the deceased in the cremation ground. PW - Munshi Ram, Numberdar who was present in the cremation has supported version of PW-Labu Ram that PW-Labu Ram had seen the injuries on the dead body in the cremation ground. Numberdar also supported PW-Labu Ram that he told the people that the accused be prevented from cremating the dead body as he is proceeding to lodge report to the Police, upon this the accused abused and chased him for beating. Numberdar also supported PW-Labu Ram that he told the people that the accused be prevented from cremating the dead body as he is proceeding to lodge report to the Police, upon this the accused abused and chased him for beating. This conduct of the accused shows that commission of offence was lurking in his mind and he was aware that if it came into the notice of the Police, it will create problem for him and that is why with this design in mind, he abused PW-Labu Ram and succeeded in cremating the dead body achieving his object to destroy the evidence. PW-Surinder Dass has also supported the fact that while coming to his home during recess in School for taking meals. He saw the deceased, mother of the deceased and the accused going from shop towards their house. PW-Vidya Devi has also stated that during that time the deceased was brought to the house after releasing from pillar on her being told that she has kept the purse in the house. This circumstance corroborates with the evidence of PW Vidya Devi. 18. Taking totality of the circumstances and evidence in consideration, the prosecution has proved beyond shadow of doubt the guilt against the accused. Learned counsel for the appellant has also submitted that the learned trial court was not right in awarding the sentence for the commission of offence under Section 302 RPC as the case does not fall under any of the four clauses of the said Section. Section 300 RPC is reproduced here under: - 300. Learned counsel for the appellant has also submitted that the learned trial court was not right in awarding the sentence for the commission of offence under Section 302 RPC as the case does not fall under any of the four clauses of the said Section. Section 300 RPC is reproduced here under: - 300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly- If it is done 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 Thirdly- 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- Fourthly- 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 incurring the risk of causing death or such injury as aforesaid.� 19. For the conviction of accused under Section 302 RPC, the prosecution has to prove that the accused has committed the act with the intention of causing death or causing such bodily injury, likely to cause death, or the bodily injury inflicted is sufficient in the ordinary course of nature to cause death and that the person committing the act knows that it is so imminently dangerous and in all probability may cause death, causes such injury and commits such an act incurring the risk of causing death. Only intention of the accused to beat his daughter was to know the factum of theft as to whether she had committed the theft. He had no intention to kill her. It is noticed at the same time that the beating administered to the child of 10/11 years of age is of highest magnitude, adopting criminal and cruel method of putting red chilly powder in the mouth and eyes of the deceased. The protector of the minor child committed this gruesome act, which no father would do to a minor female child for no fault of her. He did not show any remorse even after murder. The protector of the minor child committed this gruesome act, which no father would do to a minor female child for no fault of her. He did not show any remorse even after murder. The child died as a result of gruesome torture. The helpless mother could not save her child from the cruel clutches of her husband because of the obstinate criminal mind exhibited by the accused during commission of the offence. 20. The act of assault inflicted by the accused on the deceased was not with the intention to cause murder or with the requisite knowledge that death would otherwise be the inevitable result. The accused could not have been convicted under Section 302 RPC. Taking into consideration the fact that the accused had no intention to cause death or his action would result into such consequence of death, the act of the accused amounts to culpable homicide not amounting to murder for the commission of offence under Section 304 Part-II RPC. The accused is convicted and sentenced to suffer rigorous imprisonment for a period of ten years with fine in the sum of Rs. 50,000 which on realization to be paid to his wife who is living separately because of this incident. In default whereof, the appellant shall suffer further rigorous imprisonment for a period of three years. The judgment of the trial court is, accordingly, modified and appeal is disposal of. Reference is decided accordingly.