Judgment Surinder Singh, J. 1. The appellant was charge-sheeted and tried for the offence of murder punishable under Section 302 of the Indian Penal Code, but the prosecution could not prove it a case of murder, however, in the opinion of the learned trial Court, it was a case punishable under Section 304 Part-1 of the Indian Penal Code, as such, the appellant, hereinafter referred to as the “accused”, was held guilty, thus convicted for the said offence and sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of ` 25,000/-. In default of payment of fine, to further undergo simple imprisonment for a period of ‘one’ year. Now, the conviction and sentence imposed upon the accused under the aforesaid Section has been challenged in this appeal. 2. In short, the prosecution story, as emerges from the evidence on record, can be stated thus. In the year 2008, PW-1 Surender Singh was a sales man in a liquor vend at Village Lahru, Tehsil Lambagaon, the licencee whereof was “Ankush Gupta and sons”. (ii) On 16.1.2008, he (PW-1) was present in the liquor vend, sitting on the counter. PW-2 Jai Chand, who was running a tailoring shop nearby and deceased Balak Ram, a sweet- shop owner, had come to his liquor vend. In the meantime, the accused arrived there and gave 2-3 slaps to deceased Balak Ram and then gave a push to him, consequently, he fell down on the ground, outside on the road in front of another shop, which was closed. Thereafter, many persons gathered there. Deceased Balak Ram was not in a position to speak because he had sustained bleeding injury on the back side of his head. (ii) PW-2 Jai Chand went to a STD booth and informed his brother-in-law PW-6 Bidhi Chand about the incident. PW-6 aforesaid reached the spot and noted that Balak Ram was lying unconscious with the head-injury. He with the assistance of PW-2 Jai Chand, removed him to CHC Sujanpur, where he was attended upon by PW-5 Dr. Gopal Beri. For some time, he was kept in the hospital under observation. His bed ticket is Ext. PW-5/A. The doctor had noticed the signs of bleeding in the occipital region of the head with lacerated wound. The blood was oozing out from both the nostrils. Gopal Beri. For some time, he was kept in the hospital under observation. His bed ticket is Ext. PW-5/A. The doctor had noticed the signs of bleeding in the occipital region of the head with lacerated wound. The blood was oozing out from both the nostrils. After giving some treatment, he was referred to Regional Hospital, Hamirpur for further treatment. On the way, Balak Ram breathed his last, as such, he was brought back to CHC Sujanpur. (iii) Police was informed about the incident by PW-3 Smt. Saroj Kumari, the Pradhan of Gram Panchayat, Lahru telephonically about the death of deceased Balak Ram on 16.1.2008. The entry to this effect was made in the daily diary Ext. PW-13/A. (iv) On 17.1.2008, the police visited the spot and recorded statement Ext. PW-1/A of PW-1 Surender Singh, on the basis of which, FIR Ext. PW-9/A was registered under Section 302 of the Indian Penal Code. (v) On the request of the police, PW-4 Dr. Ghambhir Sood conducted the autopsy of the dead body. The doctor noticed a lacerated wound 4 cm x 1 cm in the occipital region, irregular in shape and black coloured blood was oozing out of it. On dissection underlying tissues were ecchymosed containing black colour blood. There was a fracture of occipital bone. Brain tissues were also ecchymosed with acdama around it. In the opinion of the doctor, the death was due to the hemorrhagic shock and head-injury. The re-constituted body was handed over to the police. The blood samples were also taken to find out the alcoholic contents, if any. The report of post mortem is Ext. PW-4/C. The police had also taken photographs Ext. PW-4/D and Ext. PW-4/E of the spot in addition to preparing the site plan by the Investigating Officer. The doctor, during the post mortem examination, did not find any smell of alcohol from the abdomen. The viscera was also sent for chemical analysis. (vi) As per the report of Forensic Science Laboratory, Ext. PX, no alcoholic contents were detected. 3. The police recorded the statements of the witnesses. After completing the investigation, challan was presented in the Court for the trial of the accused under Section 302 of the Indian Penal Code. He was accordingly charge-sheeted for the aforesaid offence, but was convicted and sentenced for the offence punishable under Section 304 Part-I of the Indian Penal Code, as aforesaid. 4. After completing the investigation, challan was presented in the Court for the trial of the accused under Section 302 of the Indian Penal Code. He was accordingly charge-sheeted for the aforesaid offence, but was convicted and sentenced for the offence punishable under Section 304 Part-I of the Indian Penal Code, as aforesaid. 4. Shri Anup Chitkara, learned Counsel for the accused assisted by Shri Shivendra Singh, Advocate, vehemently argued that the genesis of the incident was suppressed by the prosecution; the witnesses examined were highly interested; the police had a time for deliberations as they had come to know about the incident on 16.1.2008 itself and the statement of PW-1 Surender Singh was recorded on 17.1.2008 around 4.30 p.m. He also made a reference to the statement of PW-2 Jai Chand coupled with the daily diary Ext. PW-8/A, wherein it is reported that the deceased had sustained injury by fall. Thus, it is argued that the story with respect to the beatings by the accused is proved to be false and the prosecution story becomes doubtful. He alternatively argued that in any case it was not a case of conviction under Section 304 Part-I of the Indian Penal Code, but at the best, it fell under Section 325 of the Indian Penal Code. 5. Shri P.M. Negi, learned Deputy Advocate General, countered the above arguments by submitting that the facts on record coupled with the statements of the doctors make it clear that the deceased was a lean and thin person as compared to the accused, the accused fisticutted and pushed him violently, with the result, he fell down and sustained fatal injury on his head. Thus, he had a knowledge that by his act, the deceased would die. Hence, it would be a case under Section 304 Part-1I of the Indian Penal Code, if not under Section 304 Part-I of the Indian Penal Code. 6. I have given my thoughtful consideration to the above arguments advanced by the learned Counsel for the parties and carefully and meticulously scanned the evidence on record. 7. PW-1 Surender Singh is an eye witness to the alleged occurrence. He categorically stated that on the day of the alleged incident, Balak Rak (deceased) and PW-2 Jai Chand had entered into his liquor vend around 5/5.15 p.m. They were inter-se engaged in some argument with each other. 7. PW-1 Surender Singh is an eye witness to the alleged occurrence. He categorically stated that on the day of the alleged incident, Balak Rak (deceased) and PW-2 Jai Chand had entered into his liquor vend around 5/5.15 p.m. They were inter-se engaged in some argument with each other. In the meantime, the accused came and gave 2-3 slaps on the face of deceased Balak Ram and pushed him. Consequently, deceased Balak Ram fell on the ground outside the liquor vend in front of an adjacent closed shop. He tried to provide him water, but was not in a position to speak. His head-injury was bleeding. Thereafter, as already stated above, PW-2 Jai Chand informed his brother-in-law PW-6 Bidhi Chand, who reached on the spot and took him to the hospital. This version is corroborated by PW-2 Jai Chand, who had also accompanied the deceased and categorically stated that after 2-3 slaps given by accused, deceased Balak Ram fell down on the spot and became unconscious. Importantly, he stated that when he was going to STD booth to inform his brother-in-law, the accused threatened him not to disclose his name. Therefore, it is in that context that PW2 Jai Chand did not disclose the real facts, but however he had intimated PW-6 Bidhi Chand. 8. PW-6 Bidhi Chand stated that he came to know about the real facts on 17.1.2008 after the cremation of his brother-in-law. In fact, it is informed that Balak Ram was beaten and pushed by Surender Singh accused. PW-6 came to know from PW-2 Jai Chand about the real facts. It was the accused who gave him beatings, pushed him, with the result, he fell down and sustained injury. Admittedly, PW-2 was accompanied by PW-6 Bidhi Chand in taking deceased Balak Ram to CHC Sujanpur. The deceased was unconscious at that time. The history, which was noted by PW-5 Dr. Gopal Beri, was supplied by PW-2 Jai Chand. Therefore, the contention of the learned Counsel for the accused that initially the story was different than stated in the Medico Legal Certificate and as deposed in the Court by the complainant is germane to the above proved facts on record and not because of the deliberations made by the police to concoct a story against the accused without any malice on their part. Further, the crux of the cross-examinations of the prosecution witnesses is that the defence was being projected that the deceased had taken liquor and had a fall, but this fact is not substantiated by anyone including the medical evidence as also the forensic science report. Therefore, the defence raised was rightly discarded. 8. In the aforesaid proved circumstances, in my considered opinion, I hold that it is the accused, who had criminally assaulted the deceased, gave beatings and pushed him resulting into a fall on the ground which caused fatal injury on his head. 9. Now, I proceed further to determine as to what offence was committed by the accused, whether it is under Section 304 or 325 of the Indian Penal Code. 10. In the instant case, the prosecution has not proved any malice or premeditation of the accused to pick up the quarrel with the deceased. There is also no evidence that the deceased had provoked the accused. The death was caused because of single head- injury. The accused was not having any lethal weapon with him. The case is only that the accused gave 2-3 slaps on the face of deceased Balak Ram, pushed him and the deceased sustained head-injury by fall. Therefore, the intention to kill him is also lacking. Now, whether by such a push, the accused could be attributed knowledge that his act would cause death, for that, we shall have to go back to some of the judicial pronouncements. 11. In Narain Singh versus State of Punjab, 2006 Cri.LJ 2973, the accused was convicted and sentenced for the offence punishable under Section 304 Part-II of the Indian Penal Code by the learned trial Court. The facts, in brief, are that appellant Narain Singh was posted as a constable in Police Station, Ghanaur, whereas Baljit Kumar deceased was working as a cook in the Police Station. Narain Singh aforesaid and Head Constable Kulwant Singh were posted on duty at the Electric Grid, as there was a Bharat Bandh in those days. On August 29, 1989 around mid-night, Narain Singh came to Baljit Kumar’s house and called him outside, saying that he was being called by the In-charge of the Police Station. The accused also asked the deceased as to why he did not bring food to Grid Sub Station, where the accused was on duty. On August 29, 1989 around mid-night, Narain Singh came to Baljit Kumar’s house and called him outside, saying that he was being called by the In-charge of the Police Station. The accused also asked the deceased as to why he did not bring food to Grid Sub Station, where the accused was on duty. The accused took Baljit Kumar towards the Police Station and gave fist blows to him. Despite crying, he was not spared. After three hours, Baljit Kumar returned to his house complaining pain in his abdomen to his wife and told her that he was given beatings by the accused. The matter was reported to the police, but in the evening, he was found dead. During the postmortem, five injuries were noticed on his person. On the above proved facts, the Court came to the conclusion that it was not a case under Section 304 Part-II of the Indian Penal Code, but however, grievous injuries were caused to the deceased because of beatings given by the accused, as such, appellant was convicted for the offence punishable under Section 325 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 5,000/-. 12. Further, in Subhash versus State of Haryana, 2005 (3) Cri. Court Cases, 308, the Division Bench of the Punjab and Haryana High Court on almost similar facts held that injuries which were caused by the accused persons were likely to prove fatal, could not be attributed to them and in the absence of the knowledge and intention, the accused persons were convicted for the offence punishable under Section 325 of the Indian Penal Code and were sentenced to undergo imprisonment for five years and to pay a fine of ` 5,000/-. In addition, the accused persons were also directed to pay compensation to the tune of ` 5,000/- in equal shares to the legal heirs of the deceased. 13. In a sudden fight between the accused and the deceased, the deceased had received some of the fatal injuries. He was convicted and sentenced for the offence punishable under Section 304-II of the Indian Penal Code, which was set aside by the Bombay High Court in Rajesh Anantram Thakur versus the State of Maharashtra, 1993, Cri. 13. In a sudden fight between the accused and the deceased, the deceased had received some of the fatal injuries. He was convicted and sentenced for the offence punishable under Section 304-II of the Indian Penal Code, which was set aside by the Bombay High Court in Rajesh Anantram Thakur versus the State of Maharashtra, 1993, Cri. LJ, 208, but however, the accused was convicted under Section 325 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of ` 3,000/- 14. The Rajasthan High Court in Balu versus State of Rajasthan, 2005, Cri.LJ 4715 also took a similar view. 15. Section 325 of the Indian Penal Code provides punishment for voluntarily causing grievous hurt. In the absence of any intention on the part of the accused to cause death or knowledge that his act was likely to result in causing death, yet having regard to the nature of the injuries that were found to have been suffered by the deceased, the conclusion is inevitable that by giving fist and kick blows, the accused had voluntarily caused grievous hurt in as much as the hurt caused endangered the life of the deceased and therefore he would be guilty for committing offence punishable under Section 325 of the Indian Penal Code. 16. On the proved facts aforesaid, in view of the ratio of the above judgments, I am persuaded to alter the conviction of the accused from the offence punishable under Section 304 Part-1 of the Indian Penal Code to that of Section 325 of the Indian Penal Code as the accused is held guilty for causing a grievous hurt to the deceased unintentionally. Consequently, the conviction of the accused under Section 304 Part-1 of the Indian Penal Code is set aside and the accused stands convicted for the offence punishable under Section 325 of the Indian Penal Code instead. The sentence of rigorous imprisonment of seven years imposed by the learned trial Court is substituted by the sentence of rigorous imprisonment for a period of ‘two’ years for the offence punishable under Section 325 of the Indian Penal Code while maintaining the fine of ` 25,000/- imposed upon him by the learned trial Court, but in default of payment of fine, the accused shall further undergo simple imprisonment for a period of six months. 17. 17. In addition, the accused shall also deposit compensation to the tune of ` 50,000/-which shall be disbursed to PW-7 Smt. Milapa Devi, the widow. In case, the compensation amount is not deposited, it shall be recoverable as fine from the estate of the accused. 18. With these modifications in the conviction and sentence, the appeal is partly allowed and is accordingly disposed of. The learned trial Court shall send a modified warrant to the Superintendent of the Jail concerned in conformity with this judgment. Send down the records.