JUDGMENT M. Jeyapaul, J. (Oral):- Accused Avtar Singh and Niranjan Singh were sent up for trial for offences under Section 302 read with Section 34 and Section 323 of the Indian Penal Code. Accused Avtar Singh was convicted under Section 304(2) of the Indian Penal Code and was sentenced to undergo four years’ rigorous imprisonment and pay a fine of Rs.5,000/- and in default to further undergo rigorous imprisonment for three months. Accused Niranjan Singh was convicted for offence under Section 323 of the Indian Penal Code. He was sentenced to undergo six months’ rigorous imprisonment. Avtar Singh has preferred Criminal Appeal No. 344-SB of 2000. Niranjan Singh has filed Criminal Appeal No. 293-SB of 2000. The complainant Balwinder Singh, who was the son of the deceased, has preferred Criminal Revision No. 849 of 2000, praying for enhancement of sentence. 2. The brief case of the prosecution is that on 21.03.1998, at about 5.00 PM, PW5 Balwinder Singh, casually asked accused Niranjan Singh whether he was engaged with an unmarried girl. Accused Niranjan Singh, who was armed with Sota, caused injury on the person of PW5 Balwinder Singh. Accused Avtar Singh also reached there and gave fist blow to PW5 Balwinder Singh. PW6 Onkar Singh hearing the raula reached the place of occurrence. PW6 Onkar Singh, was taking the injured PW5 Balwinder Singh, to the clinic of Dr. Jarnail Singh. Lachhman Singh, father of Balwinder Singh, was following them. At about 6.00 PM, on the said date, accused Niranjan Singh raised lalkara and accused Avtar Singh picked a half brick from the street and gave blow with force to Lachhman Singh which hit him on the chest and as a result of which he fell down and died. PW5 Balwinder Singh lodged a complaint. Formal First Information Report was registered. PW1 Dr. Ajay Kumar conducted post-mortem examination on the dead body of Lachhman Singh. He found a contusion measuring 4 cm x 3 cm on the front part of the left side chest. On dissection, he found clotted blood. He also noted greyish yellow patch present on the left lateral anterior of the heart measuring 5 cm x 3 cm. He opined that Lachmman Singh died due to extensive myocardial infraction leading to cardiogenic shock and cardiac arrest which was sufficient to cause his death in the ordinary course of nature. On dissection, he found clotted blood. He also noted greyish yellow patch present on the left lateral anterior of the heart measuring 5 cm x 3 cm. He opined that Lachmman Singh died due to extensive myocardial infraction leading to cardiogenic shock and cardiac arrest which was sufficient to cause his death in the ordinary course of nature. He also matched the possibility of precipitating the cause of death of Lachhman Singh. The first injury was certified by him as simple in nature. 3. The Investigating Officer having completed the investigation laid final report as against both the accused. 4. The trial Court having thoroughly adverted to the evidence of PW5 and PW6, the ocular witnesses in this case, in the background of the opinion expressed by the post-mortem doctor arrived at a conclusion that accused Avtar Singh committed an offence punishable under Section 304(2) of the Indian Penal Code and accused Niranjan Singh committed offence under Section 323 of the Indian Penal Code. 5. The learned Counsel appearing for the appellants would submit that no case under Section 304(2) of the Indian Penal Code was made out, as no knowledge that such an attack would cause the death of Lachhman Singh could be attributed to Avtar Singh who simply collected, as per case of the prosecution, a half brick from the street and attacked Lachhman Singh who was standing at a distance of about 15 ft. Therefore, it is his submission that at best an offence under Section 323 of the Indian Penal Code alone would be made out. Referring to the medical evidence, he would submit that the doctor has opined categorically that the first injury was simple in nature. 6. The learned Assistant Advocate General appearing for the respondent – State would submit that the trial Court has diluted the offence under Section 302 into one under Section 304(2) of the Indian Penal Code considering the fact that accused Avtar Singh had not intended to cause the death of Lachhman Singh. There is injured eyewitness account. Another eye-witness has also spoken to the occurrence. Medical evidence would also support the case of the prosecution. Therefore, the question of convicting accused Avtar Singh under Section 323 of the Indian Penal Code does not arise for consideration. 7. There is injured eyewitness account. Another eye-witness has also spoken to the occurrence. Medical evidence would also support the case of the prosecution. Therefore, the question of convicting accused Avtar Singh under Section 323 of the Indian Penal Code does not arise for consideration. 7. The learned Counsel appearing for the complainant/revision-petitioner would submit that there is evidence to show that Lachhman Singh, the father of PW5 and PW6, also associated with them. The accused Avtar Singh had caused death of Lachhman Singh. The mere fact that both the accused had followed PW5 and PW6 who were proceeding to the clinic for treatment would go to establish that they had intended to cause the death of PW5 or PW6 or the person who accompanied them. At any rate, accused Avtar Singh, could have knowledge that his attack would end in the death of Lachhman Singh. Therefore, it is his submission that enhancement of sentence is warranted in this case. 8. PW5 Balwinder Singh, is an injured eye-witness, in this case. PW6 Onkar Singh who is his brother was also an eye-witness to the occurrence. Both of them in one voice have spoken to the fact that at about 5.00 PM on 21.03.1998, Niranjan Singh attacked PW5 Balwinder Singh who chose to inquire from accused Niranjan Singh as to whether he was engaged with an unmarried girl. Both of them have also deposed that when they were proceeding to the clinic of Dr. Jarnail Singh their father Lachhman Singh also followed them. The accused Avtar Singh having collected a half brick from the street attacked Lachhman Singh on his chest and caused his death. 9. The aforesaid evidence of the ocular testimony would go to establish that Lachhman Singh died on the spot receiving an injury caused by accused Avtar Singh. 10. PW1 Dr. Ajay Kumar, who conducted post-mortem examination on the dead body of Lachhman Singh has categorically stated that there was a contusion on the front part of the left side chest; the said injury was simple in nature and there was greyish yellow patch found present on the left lateral anterior aspect of the heart. It is his opinion that due to extensive myocardial infraction leading to cardiogenic shock and cardiac arrest, Lachmman Singh had died. It is his opinion that due to extensive myocardial infraction leading to cardiogenic shock and cardiac arrest, Lachmman Singh had died. It is to be noted that PW1 has not spoken about the gravity of the second injury as to whether it was simple or grievous in nature. But at any rate, considering the impact of the second injury one can easily come to a conclusion that it was in fact a grievous injury which ultimately took away the life of Lachhman Singh. 11. The question that arises for determination is whether an offence under Section 304 part II of the Indian Penal Code was made out by the prosecution. One of the two ingredients of Section 304 part II of the Indian Penal Code will have to be established by the prosecution to convict an accused thereunder. It should be established that the accused had knowledge that his attack would likely to cause death. If such an ingredient is absent, in the crime alleged, the prosecution should establish that the accused who was already knowing the health profile of the victim caused such a bodily injury which was likely to cause his death. There is no evidence to show that accused Avtar Singh was aware of the fact that deceased Lachhman Singh was having acute heart ailment. In fact, the evidence of PW1 would go to establish that deceased Lachhman Singh had an acute heart ailment. 12. PW5 had taunted only Niranjan Singh. Of course, PW6 Onkar Singh, also had come to the scene of occurrence to rescue his brother PW5 Balwinder Singh. Accused Avtar Singh would have intended to cause injury either to PW5 Balwinder Singh or to PW6 Onkar Singh who came to the rescue of PW5 Balwinder Singh. Deceased Lachhman Singh had just followed his sons on the way to the hospital. There was no quarrel between the deceased Lachhman Singh and the accused Avtar Singh. There was no reason for accused Avtar Singh to aim at deceased Lachhman Singh. In the facts and circumstances of this case, Court can come to a definite conclusion that the aim of Avtar Singh at PW5 and PW6 had unfortunately landed on the left chest of Lachhman Singh. 13. There was no reason for accused Avtar Singh to aim at deceased Lachhman Singh. In the facts and circumstances of this case, Court can come to a definite conclusion that the aim of Avtar Singh at PW5 and PW6 had unfortunately landed on the left chest of Lachhman Singh. 13. It is very much relevant to note that PW6 Onkar Singh has deposed that both the accused Avtar Singh and Niranjan Singh were armed with swords at the time when such a lethal attack was launched by Avtar Singh on Lachhman Singh. Accused Avtar Singh without using such a sword he held chose to collect a half brick lying on the street to attack his opponent. Such an act of accused Avtar Singh would go to establish that he had not, in fact, intended to cause the death of anybody for that matter. Had he intended to cause the death, he would have freely used the dangerous weapon he held. Further, accused Avtar Singh, would have had no knowledge that such a throw of half brick would take away the life of a man. But the Court is not inclined to accept the submission made by the learned Counsel appearing for the appellants that only simple injury was caused on the person of Lachhman Singh. Considering the nature of second injury noted down by PW1 in the post-mortem certificate, I find that the second injury which was the direct impact of the first injury was grievous in nature. 14. In the above facts and circumstances, I find that accused Avtar Singh, has committed an offence under Section 324 of the Indian Penal Code and not an offence under Section 304 part II of the Indian Penal Code and the accused Niranjan Singh has committed offence punishable under Section 323 of the Indian Penal Code. 15. The occurrence had taken place about 12 years ago. It appears that PW5 Balwinder Singh had virtually invited such an occurrence. After all, PW5, has lost his father in the attack launched by accused Avtar Singh. He has also sustained injury in the occurrence. Therefore, he is to be sufficiently compensated. 16. In view of the above, accused Avtar Singh, is convicted for offence under Section 324 of the Indian Penal Code and accused Niranjan Singh is convicted for offence under Section 323 of the Indian Penal Code. He has also sustained injury in the occurrence. Therefore, he is to be sufficiently compensated. 16. In view of the above, accused Avtar Singh, is convicted for offence under Section 324 of the Indian Penal Code and accused Niranjan Singh is convicted for offence under Section 323 of the Indian Penal Code. Accused Avtar Singh has already undergone 11 months and 15 days’ sentence and accused Niranjan Singh has undergone 04 months and 17 days’ sentence. The period already undergone by them is imposed as the sentence for the respective offences committed by accused Avtar Singh and Niranjan Singh. 17. Accused Avtar Singh is also imposed a fine of Rs. 3 lacs which shall be paid within 30 days from the date of this judgement. In default of payment of fine he shall undergo a further period of three years’ rigorous imprisonment. The trial Court concerned shall issue warrant of arrest and send him to prison to undergo the default sentence in case of default of payment of fine. The fine amount imposed shall be treated as compensation amount and the same shall be paid by the trial Court to PW5 Balwinder Singh. With the above modification in the conviction and sentence, the appeals stand disposed of accordingly, whereas, revision petition is dismissed. ------------