JUDGMENT Surjit Singh, J.(Oral)-By this judgment, we are disposing of two appeals, i.e. Criminal Appeal No.645 of 2008, filed by convict Lachhman Dass alias Lakha seeking his acquittal and Criminal Appeal No.523 of 2008, filed by the State, for changing the conviction of convict Lachhman Dass from Section 304 (second part) I.P.C. to Section 302 I.P.C. and awarding him punishment accordingly. Both the appeals are directed against the same judgment, i.e. judgment dated 5th June, 2008 of learned Sessions Court, whereby Lachhman Dass, who was tried of the offence under Section 302 of the Indian Penal Code had been convicted under Section 304 (second part) I.P.C. and sentenced to undergo 5 years rigorous imprisonment and to pay a fine of Rs.25,000/-, in default of payment of fine, to undergo rigorous imprisonment for a further period of one year. 2. Lachhman Dass, hereinafter referred to be as accused, claims himself to be a sorcerer. Also he claims himself to be a Tantrik. Deceased Lata Devi, while travelling by a bus, came into contract with the accused sometime before the occurrence. In the year 2007, during Navratras that fell in the month of October, 2007, Lata Devi told her husband, PW2 Raj Kumar that she wanted to perform Puja and also to observe fast during Navratras and that this could be done at her parents’ place, because at her in-laws’ place, the family members consumed liquor and also ate non-vegetarian food. Raj Kumar obliged her and took her to her parents’ place. Raj Kumar himself also stayed at his in-laws place. Accused was called to perform Puja. He stayed there during Navratras and did not leave even after Dussehra. Deceased Lata Devi and some other family members of her parents’ household observed fast during day time on all Navratra days. 3. Accused asked the father of the deceased to dig a site at the backside of his house during night time. He marked a particular site and told that some idols of deities would come out in the course of said digging and then a temple would be raised at the site of digging and the idol installed in that temple. Some pieces of stone appeared when the digging operation was going on. Those were brought to the Puja room in the house of the parents of the deceased. 4. Some pieces of stone appeared when the digging operation was going on. Those were brought to the Puja room in the house of the parents of the deceased. 4. On 22nd October, 2007, a day after Dussehra was observed and Navratras were over, deceasedstarted behaving abnormally. She started scratching her head and beating her hands and wrist on the ground. Accused, who was still at the place of the parents of the deceased, declared that the deceased was possessed by an evil spirit and he knew how to drive out such spirits. He took the deceased to the Puja room and asked the parents and the husband of the deceased to let the deceased remain in the Puja room for the night and he would exorcize the evil spirit. The accused allegedly gave beatings to the deceased with a pair of tongs Ex.P1 and chain Ex.P2. Deceased had been crying. When the husband and a brother and other members of the family of the parents of the deceased tried to intervene and requested the accused to release the deceased, he told them not to interfere, as the evil spirit could cause damage to them. Next day, i.e. on 23rd October, 2007, deceased remained inactive. She did not talk much and looked sleepy. In the evening, however she again started behaving abnormally. Accused told her husband and parents that she was not completely relieved of the influence of evil spirit and he would have to do the exorcising job once again. He kept the deceased in the Puja room for the night and hit her repeatedly with the pair of tongs and chain. Deceased was crying that she stood fully cured and be spared. Again her parents and husband asked the accused to leave the deceased, but he told them that the evil spirit would even possess them and could even cause their death if they interfered. Next morning, deceased was found lying motionless in the Puja room. She did not respond when asked to take tea nor did she respond to physical stimuli. Her husband and a brother and other members of her parents’ family took her to the Primary Health Centre. PW6 Dr. Anup Kumar was present at the said Centre, at the relevant time. He declared that she was already dead. Her dead-body was taken back to the house of her parents. Her husband and a brother and other members of her parents’ family took her to the Primary Health Centre. PW6 Dr. Anup Kumar was present at the said Centre, at the relevant time. He declared that she was already dead. Her dead-body was taken back to the house of her parents. Accused proclaimed that she was not dead and that he, by his method of exorcising, would revive her. 5. In the meanwhile, Pradhan of the Panchayat, namely Shreshtha Devi (PW7) informed the police telephonically and around 2 or 2.30 p.m., police arrived. PW15 ASI Chaman Lal, who reached the spot, saw the dead-body. He recorded the statement of PW1 Rakesh Kumar, a brother of the deceased, under Section 154 Cr.P.C. and dispatched the same to the police station, for formal registration of the case. Inquest was conducted by PW15 ASI Chaman Lal. Dead-body was sent to Zonal Hospital, Hamirpur, where PW8 Dr. Sandeep Kalia conducted the postmortem examination. He noticed a number of abrasions and contusions all over the body. He saw blood tinged froth in the nose and mouth. All the internal organs were found normal. He gave opinion that the death had occurred due to vasovagal shock and the cause of such attack could have been repeated hitting of deceased with a pair of tongs Ext.P1 and chain Ex.P2. 6. ASI Chaman Lal (PW15) also found pair of tongs Ex.P1 and chain Ex.P2 on the spot, which were taken into possession. Accused was also there in the Puja room, besides the dead-body. He had stains of blood on the sleeves of the shirt worn by him. His photograph was taken. Dead-body was also photographed before it was sent for postmortem examination. The entire spot was also photographed. Shirt of the accused was sent to the Chemical Examiner, who confirmed that there were stains of human blood on it. 7. Accused was challaned under Section 302 of the Indian Penal Code. Learned Judicial Magistrate, in whose Court the challan was presented, committed the case to the Sessions Court, after complying with the requirement of Section 207 Cr.P.C. Learned Sessions Court charged the accused with offence, under Section 302 of the Indian Penal Code. He pleaded not guilty to the charge and was, therefore, tried for the said offence. Learned Judicial Magistrate, in whose Court the challan was presented, committed the case to the Sessions Court, after complying with the requirement of Section 207 Cr.P.C. Learned Sessions Court charged the accused with offence, under Section 302 of the Indian Penal Code. He pleaded not guilty to the charge and was, therefore, tried for the said offence. Accused took the plea that he did not cause any injury nor did he strike the deceased with pair of tongs and the chain and that the deceased had herself struck her body against the floor and wall of the Puja room in a fit of insanity besides hitting herself with a pair of tongs and the chain. He denied that the pair of tongs and chain belonged to him. 8. Trial Court believed the testimony of the prosecution witnesses and disbelieved the defence version. However, it concluded that this was not a case of culpable homicide amounting to murder, but a case of culpable homicide not amounting to murder, punishable under Section 304 (second part) of the Indian Penal Code and convicted and sentenced the accused accordingly. 9. Accused is aggrieved by his conviction and sentence, for offence under Section 304 (second part) of the Indian Penal Code and so he has appealed against the judgment of the trial Court. State is also not satisfied with the conclusion of the trial Court that the accused is guilty of offence, under Section 304 (second part) of I.P.C. and not of murder, under Section 302 I.P.C. So, it has filed an appeal against the judgment of the trial Court seeking its modification to the extent that the accused is convicted of offence under Section 302 I.P.C. and sentenced for the said offence. 10. We have heard the learned counsel for the accused, as also the learned Assistant Advocate General, representing the State. 11. Prosecution examined PW1 Rakesh Kumar, a brother of the deceased, PW2 Raj Kumar, the husband of the deceased and PW3 Saroj Kumari, a sister of the deceased, to prove its accusation that the deceased was subjected to physical torture, by means of pair of tongs Ex.P1 and Chain Ex.P2 by the accused. 11. Prosecution examined PW1 Rakesh Kumar, a brother of the deceased, PW2 Raj Kumar, the husband of the deceased and PW3 Saroj Kumari, a sister of the deceased, to prove its accusation that the deceased was subjected to physical torture, by means of pair of tongs Ex.P1 and Chain Ex.P2 by the accused. All of them testified that on 22nd October, 2007, the deceased started behaving abnormally, upon which the accused declared that she had been possessed by an evil spirit and proclaimed that he knew how to drive out an evil spirit. They further stated that in the night, the accused asked the family members to let the deceased be taken by him to the Puja room and kept there for the night, so that he, by use of his exorcising method, drove out the evil spirit and that they agreed to the proposal of the accused. They further stated that the deceased was beaten up with pair of tongs Ex.P1 and Chain Ex.P2 for a few hours and around 11.30 p.m., accused declared that the evil spirit had been driven out and the deceased was all right. It was further testified by all of them that next day, the deceased remained silent and looked tired and sleepy, but in the evening, she again started behaving abnormally and started scratching her head and striking her hands and wrists on the ground. They stated that the accused told that the evil spirit had not completely released the deceased and that she be allowed to be exorcised again during the night. They stated that the accused again took the deceased to the Puja room and started thrashing her with that pair of tongs Ex.P1 and chain Ex.P2. They further stated that they heard the deceased crying that she was all right and be spared. They went near Puja room and pleaded with the accused to release the deceased, but he refused to oblige them and frightened them, by saying that in case she was released, the evil spirit could possess them and even kill them. They further stated that they heard the deceased crying that she was all right and be spared. They went near Puja room and pleaded with the accused to release the deceased, but he refused to oblige them and frightened them, by saying that in case she was released, the evil spirit could possess them and even kill them. All of them further stated that next morning when tea was sought to be served to the deceased around 6, she was found lying motionless on the floor of the Puja room and when she did not respond to their calls or stimuli, the accused told them not to disturb her as she was sleeping and let her remain in that state. They stated that around 8 or 8.30 a.m., they felt that the deceased needed to be shown to some doctor and so they carried her to PW6 Dr. Anup Kumar of Primary Health Centre, situated in that very village, but the doctor declared that she was already dead. They testified that the accused told them that the doctor was not to be believed and that the deceased be taken back to the house and he could revive her by his Tantrik knowledge and expertise. They stated that after sometime police came there and inspected the dead body and then recorded statement Ex.PW1/A of one of them, namely Rakesh Kumar (PW1). 12. The testimony of these three witnesses inspires confidence. There are no contradictions in their statements. Also, we do not find any material contradiction in their statements before the trial Judge and the statements which they made during investigation. Some portions of their testimony have not been even subjected to cross-examination by the defence. For example, their testimony that the deceased was crying and saying that she was all right and be spared has gone unchallenged. Now, if the deceased was crying and shouting that she was fully cured and she be spared, accused’s plea that the deceased herself hit her repeatedly with the pair of tongs or the chain or she struck her body against the wall and floor of the Puja room, cannot be believed. This portion of the testimony of three witnesses, which has remained unchallenged, alone is sufficient to reject the defence plea. 13. Accused denied that the pair of tongs and the chain belonged to him. This portion of the testimony of three witnesses, which has remained unchallenged, alone is sufficient to reject the defence plea. 13. Accused denied that the pair of tongs and the chain belonged to him. He claimed that the same belonged to the parents of the deceased. This plea cannot be believed, because no suggestion was thrown to any of the witnesses, including the brother and the husband of the deceased, that the parents or any member of the household of the parents of the deceased had even an idea of Tantrik practices. This kind of chain, which is in the form of a large sized bunch of small pieces of chain, is usually available with the sorcerers and Tantriks. Accused does not deny that he is a Tantrik. He also does not deny his presence at the place of the parents of the deceased during Navratras and also on 22nd, 23rd and 24th October, 2007. He was arrested from the house of the parents of the deceased by the police on 24th October, 2007. He had blood stains on the sleeves of shirt Ex.P7 worn by him. Those stains have been confirmed to be that of human blood by the Chemical Examiner, per report Ex.PW8/A. 14. In view of the above discussed evidence, there cannot be any escape from the conclusion that the accused beat the deceased to death, by means of pair of tongs Ex.P1 and bunch of Chain Ex.P2, as held by the trial court. 15. However, the facts and the circumstances of the case clearly indicate that the accused did not have the intention to kill the deceased or to cause any injury, which, in the ordinary course of nature, could have caused death. No vital part of the body had been seriously injured. His intention, as it appears from the testimony of PW1 Rakesh Kumar, PW2 Raj Kumar and PW3 Saroj Kumari, was only to relieve the deceased of the evil spirit, she was assumed to be possessed by. However, the accused is a man of ordinary prudence, who was supposed to be knowing that repeated hitting of the deceased, who was a lady of average built, per statement of PW8 Dr. Sandeep Kalia, was likely to cause her death. However, the accused is a man of ordinary prudence, who was supposed to be knowing that repeated hitting of the deceased, who was a lady of average built, per statement of PW8 Dr. Sandeep Kalia, was likely to cause her death. Therefore, his act of killing the deceased does not amount to murder, but it does amount to culpable homicide, not amounting to murder, punishable under Section 304 (second part) of the Indian Penal Code. 16. As a result of the above discussion, both the appeals are dismissed.