JUDGMENT Mr. Mehinder Singh Sullar, J. (Oral):- Tersely, the facts and evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, as claimed by the prosecution, are that Bachan Singh (deceased) had four sons and four daughters from his 1st marriage. He performed 2nd marriage with complainant Smt.Shanti (PW1) (for brevity “the complainant”), who had a son named Sema aged 12 years. Bachan Singh had about 7 acres of land, out of which, he had given one half to four sons from his first marriage, namely appellant-convict Mangal Singh alias Manga (for short “the appellant”), Ram Singh alias Rama, Kashmir Singh alias Bau (acquitted accused) and Jagir Singh. However, the tubewell to irrigate the land remained joint. It was alleged that although on the previous night of the occurrence, it was the turn of sons of Bachan Singh from 1st marriage to irrigate their fields, but Bachan Singh (deceased) out of anger had switched off the electricity connection of motor of tubewell and did not allow them to irrigate their fields. There was an altercation between them in this respect. They exchanged abuses as well. Bachan Singh approached his uncle Katha Singh (PW2) and Mela Singh (PW3) to intervene and to settle the matter between him and his sons. 2. The case of the prosecution further proceeds that on 28.7.1999 at about 11 A.M., the complainant, Bachan Singh, Katha Singh, Mela Singh and accused were sitting in the courtyard of the house of the complainant. They were mutually discussing in respect of partition of the land. All of a sudden, accused Ram Singh and Kashmir Singh alias Bau have started giving abuses to Bachan Singh. Then, Ram Singh raised lalkara to catch hold and to teach him (Bachan Singh) a lesson for not allowing them to irrigate their fields. Ram Singh and Kashmir Singh were stated to have caught hold of his arms and appellant Mangal Singh alias Manga had suddenly picked up a Wooden Club Pestle (Loon Ghotna) and gave two blows, which landed on his (Bachan Singh) head and on the back side of his left hand. The complainant raised noise and PW2 Katha Singh and PW3 Mela Singh tried to separate them. But as luck would have been, he (Bachan Singh) suddenly died at the spot. The complainant raised noise and PW2 Katha Singh and PW3 Mela Singh tried to separate them. But as luck would have been, he (Bachan Singh) suddenly died at the spot. In the background of these allegations and in the wake of statement (Ex.PA) of complainant, the present criminal case was registered against the appellant and Ram Singh alias Rama and Kashmir Singh alias Bau (acquitted accused), by virtue of FIR No.176 dated 28.7.1999 (Annexure PA/2), on accusation of having committed an offence punishable under section 302 read with section 34 IPC by the police of Police Station Ajnala, District Amritsar in the manner depicted here-in-above. 3. After completion of the investigation, the final police report (challan) was submitted by the police against them to face the trial for the pointed offence. 4. Having completed all the codal formalities, the appellant and acquitted accused were charge-sheeted for the commission of indicated offence. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Court. 5. Sequelly, the prosecution, in order to prove the crime against the appellant and acquitted accused, examined PW1 Shanti, widow of Bachan Singh, who did not support the prosecution case and maintained that there was no dispute regarding land. Accused had not murdered Bachan Singh. He was murdered by some one else and his dead body was thrown on the road side. However, PW2 Katha Singh son of Wadhwa Singh has deposed in the following terms:- “Bachan Singh deceased was my nephew. He was married twice. Four sons were born from the first wife whose names are Ram Singh, Mangal Singh, Kashmir Singh accused and the fourth is Jagir Singh. Bachan Singh then married with Shanti, Shanti has pichhlag son. Bachan was owner of 6/7 acres of land. Two acres of land was given to the accused. There was dispute regarding the water. Bachan Singh came in the morning about six/seven months back and requested me to get the dispute settled. 10/12 persons were present. Mangal Singh had Loon Ghotna in his hand. We all were present there. Mangal Singh gave blow with Loon Ghota to Mangal Singh which hit on the head of Bachan Singh. He died due to that injury. Kashmir Singh and Ram Singh grappled with Bachan Singh. They have not given any injuries to Bachan Singh. 10/12 persons were present. Mangal Singh had Loon Ghotna in his hand. We all were present there. Mangal Singh gave blow with Loon Ghota to Mangal Singh which hit on the head of Bachan Singh. He died due to that injury. Kashmir Singh and Ram Singh grappled with Bachan Singh. They have not given any injuries to Bachan Singh. The accused fled away from the place of occurrence. My statement was recorded by the police.” 6. Likewise, PW3 Mela Singh son of Arjan Singh has also supported the prosecution version. Instead of reproducing the entire evidence of PW3 and in order to avoid the repetition, suffice it to say that he has fully corroborated the statement of PW2 on all vital counts. 7. Now adverting to the medical evidence, PW4 Dr.Gurmanjit Rai, on police request (Ex.PC) accompanied by inquest report (Ex.PD), has conducted the post mortem examination on the dead body of Bachan Singh, vide post mortem report (Ex.PB) and pictorial diagram (Ex.PB/1) and found the following injuries on his person:- 1. Lacerated wound 2 x 0.75 cm on back of head in occipital region. Clotted blood was present. On dissection haemotomma was present in the scalp, underneath the injury. Skull, memberance and brain were found normal. 2. Lacerated wound 2 x 0.3 cm was present on the back of left hand. It was muscle deep. Clotted blood was present. 3. Reddish blue bruise 13 x. 3.5 cm was present on anterio-lateral aspect of upper arm of left side. It was obliquely placed on its middle. 4. On dissection of chest infiltration of blood was present in the left memory area, pericardial sac was found having about 250 cc of dark brown coloured clotted blood. Aorta was found ruptured and heart was found enlarged and weight of heart was 452 grams. Pleura and lungs were found adherent to chest wall. On dissection of abdomen, stomach was having about 150 cc of semi digested food. Rest of the organs of abdomen and chest were normal. 8. The cause of death, according to PW4, was cardiac temponade as a result of rupture of aorta, which was sufficient to cause death in the ordinary course of nature. 9. Now coming to the evidence of police officers, PW7 C.Raj Kumar and PW8 C.Sukhdev Singh are the formal witnesses, who have tendered their respective affidavits (Ex.PL and Ex.PM) to complete the chain of link evidence. 9. Now coming to the evidence of police officers, PW7 C.Raj Kumar and PW8 C.Sukhdev Singh are the formal witnesses, who have tendered their respective affidavits (Ex.PL and Ex.PM) to complete the chain of link evidence. PW5 ASI Baljit Singh has stated that on 12.8.1999, SHO Gurpinder Singh had interrogated appellant Mangal Singh in his presence. He suffered the disclosure statement (Ex.PE) that he has kept concealed the Wooden Club Pestle (Ex.P1) in the heap of chaff and he could get the same recovered. In pursuance thereof, the Wooden Club Pestle was recovered, its sketch (Ex.PG) was prepared and was taken into possession, by means of recovery memo (Ex.PF) attested by the witnesses. 10. The last to note is the testimony of PW6 SHO Gurpinder Singh, the main Investigating Officer, who has maintained, on oath, that on 28.7.1999 he along with other police officials was present at the turning point of village Gurayala. Complainant Shanti met him and made her statement (Ex.PA), which was read over and explained to her. She thumb marked the same in token of its correctness. He made endorsement (Ex.PA/1) and sent it to the police station for registration of the case, on the basis of which, formal FIR (Ex.PA/2) was recorded by ASI Balwant Singh. He identified his signatures. Then, he reached the spot and prepared the inquest report (Ex.PD). He sent the dead body for post mortem examination, vide police request (Ex.PC). He prepared the rough site plan (Ex.PH), where the dead body was lying, recorded the statements of witnesses and prepared injury statement (Ex.PH/1). He took into possession the sealed parcel containing Chaddar (Ex.P2), Parna (Ex.P3), Fatohi (Baniyan) (Ex.P4) and underwear (Ex.P6), vide recovery memo (Ex.PJ) attested by the witnesses. According to PW6 that on 11.8.1999, one Mahanta Singh of village Dalla had produced the accused before him and they were sent to police lock up. On 12.8.1999, he interrogated the accused, where the appellant made a disclosure statement (Ex.PE) and got recovered the weapon of offence (Ex.P1) in pursuance thereof. He prepared its sketch (Ex.PG), which was taken into possession, by way of recovery memo (Ex.PF). He also prepared the rough site plan of the spot (Ex.PK) with its correct marginal notes. He has further testified his entire investigation. This is the total oral as well as documentary evidence brought on record by the prosecution. 11. He prepared its sketch (Ex.PG), which was taken into possession, by way of recovery memo (Ex.PF). He also prepared the rough site plan of the spot (Ex.PK) with its correct marginal notes. He has further testified his entire investigation. This is the total oral as well as documentary evidence brought on record by the prosecution. 11. After the close of the prosecution evidence, the statements of the appellant and acquitted accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, the appellant has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:- “I am innocent. I have been falsely implicated due to party faction in the village. I and my co-accused did not cause any injury to deceased Bachan Singh. He died in the field due to heart attack. All the recoveries have been wrongly planted upon us. Shanti did not make any statement against us.” 12. Although the remaining accused have also adopted the same line of defence, but, they did not prefer to produce any defence evidence despite adequate opportunities. 13. Taking into consideration the entire evidence on record, all the accused including the appellant were acquitted of the charge u/s 302/34 IPC. The State of Punjab did not file any appeal to challenge their acquittal. At the same time, appellant Mangal Singh was convicted and sentenced to undergo rigorous imprisonment (in short “RI”) for a period of seven years, to pay a fine of Rs.2000/- or in default thereof, to further undergo RI for a period of four months for the commission of an offence punishable u/s 304 Part 1, IPC, by virtue of impugned judgment of conviction and order of sentence dated 6.12.2000 by the trial Court. 14. Aggrieved thereby, the appellant has preferred the instant appeal. That is how I am seized of the matter. 15. After hearing the learned counsel for the parties, going through the evidence on record with their valuable assistance and after considering the entire matter deeply, to my mind, the present appeal deserves to be partly accepted in this context. 16. 14. Aggrieved thereby, the appellant has preferred the instant appeal. That is how I am seized of the matter. 15. After hearing the learned counsel for the parties, going through the evidence on record with their valuable assistance and after considering the entire matter deeply, to my mind, the present appeal deserves to be partly accepted in this context. 16. Ex facie, the arguments of learned counsel that the complainant did not support the prosecution case at all and since the deceased had died on account of heart attack, so, the trial Court committed a legal error in convicting the appellant, are not only devoid of merit but misplaced as well. 17. As is evident from the record that PW2 Katha Singh and PW3 Mela Singh have, inter-alia, maintained, on oath, that they were present at the spot, whereas Kashmir Singh and Ram Singh accused grappled with Bachan Singh. They did not cause any injury to him. However, appellant Mangal Singh picked up and gave blow with the Wooden Club Pestle (Ex.P1), which hit on the head of the deceased. He died at the spot due to injuries. Their presence at the spot is very natural, as they were called by the complainant to settle the dispute between Bachan Singh on the one hand and with his sons on the other hand. The mere fact that the complainant did not support the prosecution story, ipso facto, is not a ground, muchless cogent, to throw its case, which is otherwise proved by the ocular statements of eye witnesses (PW2 and PW3), coupled with the medical evidence. The implicit reliance can be placed on the evidence of such eye witnesses if it is otherwise believable. They gave the consistent and vivid narration of prosecution version. They were cross-examined at length, but no substantial material could be elicited in their searching cross examination to dislodge their testimony and impeach their credibility. No motive could possibly be attributed to the eye witnesses as to why they would falsely implicate the appellant in this case. 18. Not only that, the ocular version finds further corroboration from the statement of PW4 Dr.Gurmanjit Rai, who conducted the post mortem examination on the dead body of the deceased, vide PMR (Ex.PB) and found the pointed corresponding injury on the head of the deceased. The investigation is duly testified by PW6 SHO Gurpinder Singh. 18. Not only that, the ocular version finds further corroboration from the statement of PW4 Dr.Gurmanjit Rai, who conducted the post mortem examination on the dead body of the deceased, vide PMR (Ex.PB) and found the pointed corresponding injury on the head of the deceased. The investigation is duly testified by PW6 SHO Gurpinder Singh. The link evidence is also complete. 19. Therefore, if the entire oral as well as medical and documentary evidence brought on record by the prosecution as discussed here-in-above, is put together, then, to me, the conclusion is inescapable and irresistible that it stands proved on record that the appellant has voluntarily caused and inflicted the injury on the head of the deceased in the same manner as projected by the prosecution. Hence, the contrary submissions of the learned counsel for appellant “stricto sensu” deserve to be and are hereby repelled under the present set of acceptable evidence and circumstances. 20. Finding no alternative, then the learned counsel has fairly acknowledged that in view of the indicated cogent evidence on record, further, he will not be in a position to contest the conviction of appellant any more. He has no other argument/material/ground, much less cogent, to assail the prosecution version in this relevant connection. 21. Be that as it may, the next contention of learned counsel that if the ocular and medical evidence brought on record by the prosecution is believed to be true as such in its totality, even then, the offence punishable u/s 304 part 1, IPC is not made out against the appellant, has considerable force. 22. As mentioned here-in-above, the complainant was the material witness, who had set the police machinery into motion. She instead of supporting, has demolished the prosecution case in its entirety. The crux of the statements of PW2 and PW3 is to the effect that there was a dispute between the deceased and his sons. Bachan Singh requested them (PW2 and PW3) to get the matter settled between them. During the course of negotiations, accused Kashmir Singh and Ram Singh grappled, whereas the appellant suddenly picked up the Wooden Club Pestle (Ex.P1) (Loon Ghotna) gave a blow, which landed on the head of the deceased. He did not repeat the injury. The medical evidence of PW4 Dr.Gurmanjit Rai is also relevant in this respect. During the course of negotiations, accused Kashmir Singh and Ram Singh grappled, whereas the appellant suddenly picked up the Wooden Club Pestle (Ex.P1) (Loon Ghotna) gave a blow, which landed on the head of the deceased. He did not repeat the injury. The medical evidence of PW4 Dr.Gurmanjit Rai is also relevant in this respect. He opined that the cause of death was cardiac temponade as a result of rupture of aorta, which was sufficient to cause death in the ordinary course of nature. In crossexamination, he has admitted that the death of Bachan Singh was as a result of rupture of heart and is not direct result of injury No.1. The cardiac temponade could be possible as a result of sudden fall. Skull was normal and there was no corresponding fracture of injury No.1 or any other injury. He further maintained that injury No.1 could be result of fall. 23. As is evident from the record that the complainant is 2nd wife of, whereas appellant and his other co-accused are the sons of, deceased from his previous marriage. The appellant and his brothers did not come to the place of occurrence with preplanning or pre-determining to fight or to harm the deceased. The appellant did not have the intention to kill or to give any injury to his father, which was sufficient to cause death. The Wooden Club Pestle (Loon Ghotna) (Ex.P1) is not the weapon of offence, rather it is an instrument, which is generally used in the kitchen, for preparing the vegetable (Saag). The incident originated at a spur of moment on a trivial matter during the course of settlement proceedings. He had no immediate motive to murder his father. In that eventuality, to me, the appellant cannot possibly be clothed with the knowledge that the pointed injury inflicted with the weapon (Ex.P1) on the head of his father, was likely to cause his death. In fact, he (Bachan Singh) died due to heart attack on account of injury caused by the appellant. In other words, the injury inflicted by him was not the direct and immediate cause of his death. 24. In fact, he (Bachan Singh) died due to heart attack on account of injury caused by the appellant. In other words, the injury inflicted by him was not the direct and immediate cause of his death. 24. What cannot possibly be disputed here is that in order to attract the penal provisions of Section 300 IPC, inter-alia, the prosecution was required to prove by cogent evidence that there was an intention to inflict the particular bodily injury, which was sufficient to cause death in the ordinary course of nature. He did not repeat the injury on any vital part. The sudden fight over a trivial issue and the injury inflicted with the Wooden Club Pestle (Loon Ghotna) (Ex.P1) will not even remotely attract the provisions of Section 304 Part 1, IPC. To my mind, the act of appellant squarely falls within the domain of section 304 Part II of IPC. This matter is no more res integra and is now well settled. 25. An identical question came to be decided by Hon’ble Apex Court in the celebrated judgments in cases Virsa Singh v. State of Punjab, AIR 1958 Supreme Court 465; Anda v. State of Rajasthan, AIR 1966 SC 148 and Khuman Singh v. State of M.P. 2005(1) RCR (Criminal) 310, which were subsequently followed in recent judgments. Having interpreted the essential ingredients of sections 300 and 304 IPC, it was ruled that under these circumstances, only the offence punishable u/s 304 Part-II, IPC is made out. The ratio of law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of this case and is the complete answer to the problem in hand. 26. Therefore, it is held that the appellant had not the intention or knowledge to cause the death of his father and he cannot possibly be held guilty for the offence prescribed under Section 304 Part-I, IPC. Indeed, to me, he would only be liable for commission of culpable homicide not amounting to murder punishable u/s 304, Part-II of IPC. To this extent, the trial Court appears to have gone legally wrong in this relevant connection. 27. Now adverting to the matter of sentence, as per custody certificate, the appellant, who was previously convicted and sentenced u/s 304 Part-I (now u/s 304-Part II, IPC), has already undergone RI for a period of 1 year, 9 months and 21 days. To this extent, the trial Court appears to have gone legally wrong in this relevant connection. 27. Now adverting to the matter of sentence, as per custody certificate, the appellant, who was previously convicted and sentenced u/s 304 Part-I (now u/s 304-Part II, IPC), has already undergone RI for a period of 1 year, 9 months and 21 days. He has already suffered the pangs and agony of protracted trial and appeal for the last more than 14 years. There is no history of his previous involvement in any other criminal case. The parties belong to the same family. The incident suddenly originated at the spur of the moment. Therefore, to my mind, the ends of justice would squarely be met and sub-served, if appellant is sentenced to the period already undergone by him. 28. In the light of aforesaid reasons, the instant appeal is partly accepted and the appellant is acquitted of the charge u/s 304 Part-I, IPC. At the same time, he is held guilty and is hereby convicted and sentenced to the period (1 year, 9 months and 21 days) already undergone by him u/s 304-Part II, IPC. Consequently, the impugned judgment of conviction and order of sentence are accordingly modified to the extent and in the manner depicted here-in-above. Needless to mention, the necessary compliance and procedural consequences would naturally follow. --------0.B.S.0------------