Judgment K.S.Garewal, J. 1. On August 1, 2001 Bhupinder Singh alias Bari (26), son of Harbhajan Singh (PW-1) of Sunrawala, was caught stealing Rs. 50/- from the cash box (golak) lying in the dispensary of Gurdwara Tahli Sahib, Balerkhanpur on the main Nakodar-Kapurthala highway. Bhupinder Singh was tied to a pillar of the Langar Hall of the Gurdwara and severely beaten up. His father Harbhajan Singh learnt about it and reached the Gurdwara, untied his son and brought him home on his scooter. Unfortunately, Bhupinder Singh died soon after reaching home but before his death he named his tormentors. 2. Harbans Singh and his son Bhupinder Singh of Mallu Kadra Bad, District Kapurthala alongwith Satnam Singh of Talwandi Jallekhan, District Ferozepur were tried for the murder and wrongful confinement of Bhupinder Singh. There were two other persons involved in the incident namely Tarsem Singh and Lambar Singh but neither of them were tried because they were both juvenile. 3. Learned Trial Judge found Harbans Singh, Bhupinder Singh and Satnam Singh guilty of offences under Section 302 read with Section 149 and 342 I.P.C. vide judgment dated August 29, 2003. All three were sentenced to rigorous imprisonment for life and to pay fine Rs. 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for one month for an offence under Section 302/149 I.P.C. They were also sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for 15 days under Section 342 I.P.C. Both sentences were directed to run concurrently. Harbans Singh and Bhupinder Singh have filed Criminal Appeal No. 711-DB of 2003. Satnam Singh has filed Criminal Appeal No. 837 DB of 2003. Both appeals shall be disposed of by this common judgment. 4. Was it "Murder in the Cathedral" or Divine Justice that led to Bhupinder Singh death or simply a case of harsh punishment for a petty offence. For about six months before his death, Bhupinder Singh had been going to Gurdwara Tahli Sahib, Balerkhanpur for rendering service. Harbans Singh, Bhupinder Singh and Satnam Singh (appellants herein) as well the two juveniles were "sewadars" in the said Gurdwara Sahib. Bhupinder Singh would reach the Gurdwara at about 9.00 a.m. and return home at 7.00 P.M. 5. For about six months before his death, Bhupinder Singh had been going to Gurdwara Tahli Sahib, Balerkhanpur for rendering service. Harbans Singh, Bhupinder Singh and Satnam Singh (appellants herein) as well the two juveniles were "sewadars" in the said Gurdwara Sahib. Bhupinder Singh would reach the Gurdwara at about 9.00 a.m. and return home at 7.00 P.M. 5. On August 8, 2001 Bhupinder Sigh went to the Gurdwara at 9.00 a.m. while his father Harbhajan Singh got busy in working in their fields. At 5.00 p.m. Gurmel Singh (PW-3) of Sunarwala, who had also been working was also working in the said Gurdwara, came to Harbhajan Singh and informed him that Bhupinder Singh had been tied to a pillar by the Gurdwara sewadars in the Langar hall for having stolen Rs. 50/-. Harbhajan Singh narrated this to Sarpanch Sucha Singh(PW-2) of his village and together they reached the Gurdwara Sahib on a scooter. When they entered the new Langar Hall, they saw Bhupinder Singh tied to a pillar. The three appellants and the two juveniles were standing nearby. When Harbans Singh asked as to why Bhupinder Singh had been tied, the accused replied that he had been tied for stealing Rs. 50/-. The accused also informed Harbhajan Singh that they had beaten Bhupinder Singh and asked Harbhajan Singh to take him to home. Bhupinder Singh was untied from the pillar and brought home on the scooter. On the way Bhupinder Singh told his father and the Sarpanch that he had not committed the theft. He further told them that from 12 noon till 6.00 p.m. the accused had kept him tied to the pillar and beaten him with a rafter and sotas. There were bluish marks on Bhupinder Singhs person. 6. Bhupinder Singh was brought home and made to lie on a cot. He revealed the names of the accused to his brother Girdawar Singh but died while recounting the story. The matter was reported to the police by Harbhajan Singh(PW-1), statement of Harbhajan Singh was recorded by SI Satnam Singh at bus stand Balerkhanpur at 9-15 p.m. and on its basis F.I.R. was recorded at Police Station Kapurthala at 10-15 p.m. and recording of the F.I.R. was completed at 11-15 p.m. whereafter its special report was delivered to Additional Chief Judicial Magistrate, Kapurthala at 01.40 hours on August 9. 7. 7. S.I. Satnam Singh (PW-12) reached Harbhajan Singhs house and prepared the inquest report on Bhupinder Singhs dead body and the following injuries were mentioned in column 10 :- 1. Bluish injury mark below the left eye. 2. Invisible injury on the left elbow. 3. Injury mark on the left chest and abrasion marks. 4. Bluish injury marks on right biceps. 5. Bluish injury marks on right and left shoulder blades and back. 6. An invisible injury appears to have been inflicted on the backside of the skull. 7. Bluish injury mark on the left thigh. 8. The dead body was sent for post mortem examination which was conducted by Dr. J.N. Dutta at Civil Hospital, Kapurthala at 10.45 a.m. on August 9, 2001. The following injuries were noted in the post mortem report :- 1. Contusion blue black over the left lower eyelid. 2. 3 cm x 2 cm contusion mark (bluish black) over the right shoulder. 3. 3 cm x 2.5 cm bluish black contusion over right upper arm. 4. 3 cm x 2 cm blue brown contusion on the anterior left shoulder. 5. Multiple contusion(blue black) over the posterior left upper arm. 6. 15 cm x 3 cm blue black contusion over the scapular area of right side. 7. 17 cm x 3 cm bluish black contusion over the back of left side of chest over scapular area. 8. 5 cm x 3 cm bluish black contusion over the middle of body at lumbar region on the posterior aspect. 9. 2 cm x 2 cm blue black contusion over the left knee. 10. 2 cm x 2 cm blue black contusion over the right forehead 11. 3 cm x2 cm blue black contusion over the frontal bone 2cm posterior to injury No. 10. 9. Frothy discharge was coming out from the nose and nasal cavity and pharynx was full food particles. While recording observations regarding the various organs, the Medical Officer noted that mouth, pharynx and esophagus were smeared with food particles, yellowish in colour. Stomach contained (illegible) fluid with food particles. Small intestine contained undigested food particles. Large intestine contained faecal matters and faecal gases. 10. In the opinion of the Medical Officer cause of death was aspiration leading to asphyxia and also associated with the above injuries which were sufficient to cause death in the ordinary course of nature. These injuries were antemortem in nature. Small intestine contained undigested food particles. Large intestine contained faecal matters and faecal gases. 10. In the opinion of the Medical Officer cause of death was aspiration leading to asphyxia and also associated with the above injuries which were sufficient to cause death in the ordinary course of nature. These injuries were antemortem in nature. The time that elapsed between injuries and death was immediate due to asphyxia and between death and post mortem was 24 to 26 hours. 11. The Investigating Officer reached Gurdwara Sahib on August 9, 2001 where he found Sarpanch Sucha Singh (PW-2) and Gurmel Singh (PW-3) present. A rope recovered from the Langar hall of the Gurdwara Sahib was taken into possession. Site plan of the spot was prepared. Investigating Officer recorded the statements of Gurmel Singh (PW-3) and Tarlok Singh (PW-4). Harbans Singh, Bhupinder Singh and Satnam Singh alongwith the two juveniles were taken into custody on August 10, 2001. Harbans Singh was interrogated on August 10 and his interrogation led to the recovery of a rafter from near the building of the new Langar hall of the Gurdwara. Interrogation of Satnam Singh led to the recovery of four dandas from near bushes close to a dirty water drain near the Gurdwara. After completion of the investigation the accused were sent up for trial. 12. At the trial charge was framed against the accused under Section 302 read with Section 149 I.P.C. and Sector 342 I.P.C. on May 30, 2003. Thereafter prosecution evidence was recorded. The witnesses examined by the prosecution were Harbhajan Singh (PW-1), Sarpanch Sucha Singh (PW-2), Gurmel Singh (PW-3), Tarlok Singh (PW-4), HC Sharanjit Singh (PW-5), ASI Balkar Singh (PW-6), ASI Parminder Singh (PW-7), C. Paramjit Singh (PW-8), Mohinder Singh, Statistical Assistant, Civil Hospital, Kapurthala (PW-9), Dr. Barinder Gill PW-10 (this witness identified the handwriting and signatures of Dr. J.N. Dutta on the Post Mortem Report as Dr. Dutta had died), Patwari Sukhwinder Singh (PW-11) and S.I. Satnam Singh (PW-12). After recording of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. Harbans Singh pleaded innocence and false implication at the instance of Sucha Singh, Harbhajan Singh and Daya Singh. Similar was the statement given by Bhupinder Singh. Dutta had died), Patwari Sukhwinder Singh (PW-11) and S.I. Satnam Singh (PW-12). After recording of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. Harbans Singh pleaded innocence and false implication at the instance of Sucha Singh, Harbhajan Singh and Daya Singh. Similar was the statement given by Bhupinder Singh. However, Satnam Singh stated as under :- "I am residing in village Talwandi Jallekhan, Tehsil Zira, District Ferozepur which is at a distance of 150 Kms from Gurdwara Tahli Sahib. I sometime come to Gurdwara Tahli Sahib to pay my respect. I have been propagating in the Sangat that there should be a committee to run the Gurdwara Management as there is huge income of the Gurdwara. For this reason Bhai Daya Singh and Sucha Singh PW became inimical towards me and falsely implicated me in this case. I am not sewadar in the Gurdwara Tahli Sahib." 13. The accused were called upon to enter defence but they did not examine any witness. The learned Trial Judge framed three questions for consideration - whether the accused alongwith the two juveniles (in conflict with law) had formed an unlawful assembly with the common object to commit murder of Bhupinder Singh deceased, whether the accused had wrongfully confined Bhupinder Singh for six hours and whether the case against the accused had been proved beyond reasonable doubt. 14. After framing the questions the learned Trial Judge analyzed the prosecution evidence and concluded that the eye witness account of Gurmel Singh (PW-3) was corroborated by the statement of Tarlok Singh (PW-4) who heard shrieks coming from the new Langar Hall of the Gurdwara at 4.00 P.M. when he had gone to pick up his bicycle. The story was further corroborated by the medical evidence and the recovery of the rafter from Harbans Singh and four dandas from Satnam Singh. Lastly, evidence of Harbhajan Singh(PW-1) and Sucha Singh (PW-2) had been found credible. Thus prosecution had proved beyond reasonable doubt that the appellants had committed the offence. Learned Trial Judge confirmed his finding by relying on other circumstances like the promptness of F.I.R. and evidence of motive etc. The appellants were convicted as aforesaid. 15. We have heard the learned counsel for the appellants and the State and have gone through the record with their assistance. 16. Learned Trial Judge confirmed his finding by relying on other circumstances like the promptness of F.I.R. and evidence of motive etc. The appellants were convicted as aforesaid. 15. We have heard the learned counsel for the appellants and the State and have gone through the record with their assistance. 16. The most important evidence in this case is of the witnesses who saw the deceased tied to a pillar in the Langar Hall of the Gurdwara and when he was untied there were injuries on his person. The deceased gave an account of the occurrence to his father Harbhajan Singh (PW-1). Earlier to this Gurmel Singh (PW-3) had witnessed the deceased being beaten by the appellants. The appellants had used a wooden rafter and some dandas to beat the deceased. Gurmel Singh conveyed this to Harbhajan Singh. At about the same time Tarlok Singh had heard the shrieks coming from the Langar Hall and had also seen the deceased tied to a pillar with a rope and the appellants beating him, Harbans Singh with a rafter while the others with sotas. When Tarlok Singh asked the accused why Bhupinder Singh was being beaten they replied that he had committed a theft. 17. The witnesses stood their ground in cross-examination. Indeed there was nothing in the cross-examination to even remotely suggest that the account of the prosecution witnesses was false or concocted. Despite minor variations and slight contradictions, the eye-witness account, by and large, was consistent with the original version given by them and there was hardly any scope for differing with the findings of the learned Trial Judge as regards the prosecution case against the appellants. 18. The eyewitness account and the case of the prosecution stand fully established against the appellants. The only point of disagreement with the judgment of the Trial Court is with regard to the nature of the offence committed by the appellants. Can it be said with certainty that the appellants were guilty of murder ? Culpable homicide it certainly was but for the act of the appellants to be labelled as murder, the act should have been done with the intention of causing death or with intention of causing such bodily injuries which appellants knew were likely to cause death or with the intention of causing such bodily injuries which were sufficient in the ordinary course of nature to cause death. 19. 19. In the present case we are not convinced that the chastisement administered to Bhupinder Singh by the appellants for stealing Rs. 50/- was with the intention of causing his death or even with the knowledge that their acts would cause death. 20. The post mortem report of the late Dr. J.N. Dutta shows that food particles were sticking to the mouth of the deceased and the cause of death was asphyxia from aspiration or asphyxia as a result of aspiration. In plain language it means that the deceased choked to death. The deceased suffocated, was unable to breath, was deprived of oxygen and died due to asphyxia. This is a condition which puts the body in suspended animation due to lack of oxygen in the blood and the person dies. 21. According to Modis Text Book of Medical Jurisprudence and Toxicology, death is said to be from asphyxia when respiratory functions stop due to deprivation of oxygen, and the heart ceases to act. Clinical features are divided into three stages - inspiratory dysphonea, expiratory dysphonea and loss of consciousness, exhaustion and stoppage of respiratory movement. It is during the second stage that there is considerable exudation of fluid in the mouth and the lungs, the fluid may even be blood tinged. Modi also describes that one of the external post mortem appearances of asphyxia is frothy and bloody fluid coming from the nostrils. 22. Unfortunately, in the present case neither the Trial Court nor the defence counsel had the benefit of the evidence of the Medical Officer who conducted the post mortem examination and for this reason no detailed cross-examination on the medico-legal aspects of the case was done. But even then the Trial Court and the defence counsel could have closely examined the cause of death mentioned as aspiration leading to asphyxia. The above opinion was fully supported by the presence of froth from the mouth and the nostrils. Symptoms as recorded in the post mortem report indicated, in very strong terms, that death was due to asphyxia. Presence of food particles in the mouth further showed that the deceased had vomitted. It is possible that the deceased may have got choked on his own vomit. 23. Symptoms as recorded in the post mortem report indicated, in very strong terms, that death was due to asphyxia. Presence of food particles in the mouth further showed that the deceased had vomitted. It is possible that the deceased may have got choked on his own vomit. 23. The injuries on the person of the deceased were contusions on different parts of the body but there was no internal bodily damage noticed by the Medical Officer at the time of the post mortem. Injury inflicted on the lumbar region could have injured the kidneys, injury on the chest could have damaged the heart and injury on the abdomen could have damaged the liver or spleen. But in the case of the deceased none of these vital organs had suffered any damage and were found to be in healthy condition. For this reason it is difficult to hold that the injuries were sufficient to cause death in the ordinary course of nature. Death in the present case was due to asphyxia, as discussed above. 24. Consequently we are of the view that the acts of the appellants were not punishable under Section 302 I.P.C. but under Section 304 Part I of the Indian Penal Code. The deceased had been repeatedly beaten on different parts of the body with blunt weapons like rafter and dandas. The deceased was found to have stolen Rs. 50/- and the sewadars of the Gurdwara had conducted his "summary" trial and inflicted punishment on him but without any intention to kill him, therefore, the appellants had been wrongly found guilty under Section 302 read with Section 149 I.P.C. The conviction of the appellants is converted to one under Section 304 Part I of the Indian Penal Code for their individual acts. Each of the appellants is sentenced to rigorous imprisonment for five years and to pay fine of Rs. 10,000/-, in default of payment of fine, they shall further suffer rigorous imprisonment for six months. Conviction and sentence under Section 342 I.PC. shall remain as awarded by the Trial Court. Both sentences shall run concurrently. Fine if recovered shall be paid as compensation to the heirs of the deceased.