JUDGMENT : U.C. Dhyani, J. A complaint (Ex.Ka-1) was written by the victim-informant (Mahavir Singh Rawat) to the Gram Pradhan, Gram Panchayat Kota Talla, P.O. Dudharkhal Malla Badalpur, Pauri Garhwal enumerating the facts contained therein that he (i.e. informant) was sitting in his house on 29.03.2004 at around 12:00 noon. Satye Singh and Raghuvir Singh Negi called him on the pretext that someone had come to purchase his buffalos. The victim went to the house of Satye Singh Negi. After some time, when the victim was going to the shop of Ajwar Singh Negi, Raghuvir Singh Negi accompanied him. When both of them reached near the house of Mahavir Singh Negi, accused-appellant Ramesh Singh Rawat assaulted the victim. Mahavir Singh Nagi asked the accused as to why he was assaulting him? The accused-appellant dragged the victim inside his house and gave him further blows. He also threatened him with dire consequences. When the accused appellant was assaulting the victim in his courtyard, appellant's wife Asha Devi and daughter-in-law were witnessing the incident. They did not try to save the victim. A villager Smt. Gaaji Devi reached there and raised an alarm. Another co-villager Bharat Singh Negi reached there and only then the accused appellant released the victim from his clutches. Bharat Singh Negi dropped the victim to his house. Earlier to this incident, the appellant assaulted the victim on 28.01.2004 also. 2. The victim further stated in his complaint (Ex.Ka-1) that he is an ex-army man and since his abdomen was operated earlier, therefore, he could not continue to serve the army. He complained that he has sustained serious injuries on 29.03.2004. He was taken to the hospital at Kotdwar for medical treatment. 3. On the basis of complaint (Ex.Ka-1), a chick FIR (Ex.Ka-3) was prepared on 03.04.2004 at 10:00 AM. The incident allegedly took place on 29.03.2004 at around 12:00 noon. The distance between the place of incident and the concerned police station was about 3 km. Considering the facts and circumstances of the case, the delay in filing the FIR has satisfactorily been explained by the prosecution. 4. Investigation began on the basis of said first information report. After investigation of the case, a chargesheet was submitted against the accused-appellant for the offences punishable under Sections 302, 504, 506 I.P.C. The case was committed to the Court of Sessions. 4. Investigation began on the basis of said first information report. After investigation of the case, a chargesheet was submitted against the accused-appellant for the offences punishable under Sections 302, 504, 506 I.P.C. The case was committed to the Court of Sessions. When the trial began and prosecution opened its case, charge against the accused-appellant was framed for the offence punishable under Section 302 I.P.C. Accused pleaded not guilty to the charge and claimed trial. 5. PW1 Gaaji Devi, PW2 Bharat Singh Negi, PW3 Satye Singh, PW4 Gaje Singh, PW5 Dr. Kumar Khagendra, PW6 Upendra Singh, PW7 Digambar Singh Negi, PW8 Balam Singh, PW9 Dr. P. K. Tyagi and PW10 Dr. P. K. Tyagi were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C., in reply to which, he said that he was falsely implicated in the case. No evidence was given in defence. 6. After conclusion of the trial, learned Sessions Judge, District Pauri Garhwal, vide judgment and order dated 02.11.2012, convicted the appellant under Section 302 I.P.C. and sentenced him to undergo imprisonment for life alongwith a fine of Rs. 10,000/-. In default of payment of fine, the convict was directed to undergo imprisonment for further one year. Aggrieved against his conviction and sentence, present criminal appeal was preferred on behalf of the convict/appellant. 7. PW1 Gaaji Devi, whose name was mentioned as witness in the FIR, stated in her examination-in-chief that deceased-Mahavir Singh Rawat was her co-villager. The accused-appellant also belonged to the same village. About 3 years ago (from the date of deposition), at 12:00 noon, accused Ramesh Singh dragged the victim, grounded and assaulted him with kicks and fists. When PW1 asked the accused as to why he was doing so, he did not reply and continued to assault the victim. When PW1 raised an alarm, Gram Pradhan Bharat Singh Negi came there and rescued the victim. 8. In her cross-examination, PW1 stated that there was negligible distance between her house and the house of the accused. Earlier, the victim was in the Indian Army. She denied the suggestion on behalf of the accused that the victim sustained injuries on his own. She also denied that she was making such a statement on account of enmity with the accused. Both the accused and the victim belonged to her village. Earlier, the victim was in the Indian Army. She denied the suggestion on behalf of the accused that the victim sustained injuries on his own. She also denied that she was making such a statement on account of enmity with the accused. Both the accused and the victim belonged to her village. In this way, nothing has come in the cross-examination of PW1 so as to suspect her testimony. 9. PW2 Bharat Singh Negi also supported the prosecution story. PW2 also stated that when PW1 raised an alarm, he saw that the accused-appellant was assaulting the victim with kicks and fists. Somehow, PW1 and PW2 managed to release the victim from the clutches of the accused. The victim was taken to the hospital, but his condition did not improve. When the victim was being taken to Chandigarh, he died on the way. PW2 stated that Ex.Ka-1 was given to him by the victim on 02.04.2004. Ex.Ka-1 was given by the victim to the Patwari, who took the statement of the victim. 10. In his cross-examination, PW2 stated that Ex.Ka-1 was written at the instance of the victim. It was written by one Dharmendra Singh Negi and was handed over to the Patwari on the next day at Satpuli. The first aid was given to the victim by the medical officer at Kotdwar. The distance between the house of the accused and PW1 was 10 metres. PW2 is the son of PW1. PW2 was elected unopposed as Gram Pradhan. In this way, the evidence of PW2 also remains unscathed. There is nothing on record to suggest that either PW1 or PW2 were telling a lie. 11. PW3 is another eye-witness of the incident, who supported the prosecution story. PW3 stated that the accused-appellant assaulted the victim with kicks. PW1 and PW2 tried to release the victim from the clutches of the appellant, but the appellant continued to assault the victim. PW3 was also cross-examined at length, much to the discomfiture of the accused. 12. PW4 is the father of the deceased. He stated that on 29.03.2004, the victim informed him that the accused Ramesh Singh assaulted him. PW4 saw the injuries on the person of the victim. A doctor was called, who provided only first-aid to the victim. The victim was then taken to the hospital at Kotdwar, but his condition deteriorated. 12. PW4 is the father of the deceased. He stated that on 29.03.2004, the victim informed him that the accused Ramesh Singh assaulted him. PW4 saw the injuries on the person of the victim. A doctor was called, who provided only first-aid to the victim. The victim was then taken to the hospital at Kotdwar, but his condition deteriorated. The victim went to the Patwari and gave his complaint. When the victim was being taken to Chandigarh, his condition further deteriorated and he passed away at Saharanpur. He was declared ‘brought dead’ at Saharanpur hospital. The genesis of incident was that the accused took money from the victim. Since the accused did not return the money and the victim made a demand from the accused, therefore, the accused assaulted him. In the cross-examination, PW4 has stated that he did not see the incident, but he has given the statement as was revealed to him by his son (deceased). 13. PW5 was posted as medical officer at Roorkee, who examined the injuries of the victim as follows: “(i) Traumatic swelling with reddish blue in colour of size 5 cm × 5 cm around the left eye ball upper & lower eyelids. (ii) Reddish spot on left eye ball. (iii) Multiple abrasions over left side of outer aspects of forearm. Reddish blue in colour. (iv) Multiple abrasions over right side of outer aspects of forearm. Reddish blue in colour. (v) Traumatic swelling of size 6 cm × 5 cm over left side of back about 5-6 cm below left seapular ankle. Duration 2-3 days old. Opinion: All injuries are simple in nature except injury no. 5.” 14. PW6 is a formal witness, who proved the chick FIR (Ex.Ka-3). The chick FIR was lodged on the basis of a complaint (Ex.Ka-1), which was handed over to him by the victim. An entry of the same was made in the G.D. (Ex.Ka-4). PW6 also recorded the statement of the victim, an extract of which, has been proved by PW6, as Ex.Ka-5. After being satisfied that the accused-appellant has committed the offence, he submitted chargesheet against the accused under Section 304-A, 324 IPC, but the Circle Officer returned the same and directed for further investigation and the same was handed over to one Digamber Singh. 15. PW7 was handed over the subsequent investigation by Circle Officer. After being satisfied that the accused-appellant has committed the offence, he submitted chargesheet against the accused under Section 304-A, 324 IPC, but the Circle Officer returned the same and directed for further investigation and the same was handed over to one Digamber Singh. 15. PW7 was handed over the subsequent investigation by Circle Officer. PW7 submitted a chargesheet (Ex.Ka-7) against the accused-appellant for the offences punishable under Sections 302, 504, 506 IPC. In this way, PW6 conducted investigation at some length and when the Circle Officer returned the chargesheet, the needful was done by PW7. 16. PW8 was one of the signatories to the inquest report (Ex.Ka-8) of the deceased. 17. PW10 conducted the postmortem on the dead body of the deceased. He proved the same as Ex.Ka-9. He opined that the death of the deceased was caused due to septicemia as a result of ante-mortem injuries sustained by the deceased. The following ante-mortem injuries were found by the Medical Officer: “(i) scrotum whole swollen & bruised (ii) Bruise on supra pubic region 6 cm × 3.5 cm. (iii) Bruise measuring 3 cm × 1.5 cm on back of right elbow (iv) Bruise measuring 2 cm × 1.5 cm on back of left elbow. (v) Left eye blackend.” 18. The incident was narrated by the eye-witnesses, namely, PW1, PW2 and PW3 in their own natural way. A brief description of their evidence has already been given by this Court in the forgoing paragraphs of this judgment. As has been stated earlier, they were cross-examined on behalf of the accused, but nothing has come in their evidence to suggest that they were telling a lie or they were trying to tell a lie. Nothing was found in the cross-examination of these witnesses to suspect that they were tutored witnesses. Their oral testimony was acceptable. 19. The oral testimony of PW1, PW2 and PW3 was duly supported by PW4, who was the father of the victim and who narrated the incident on the basis of what was told to him by his son. The medical evidence corroborates the oral testimony of the eye-witnesses. The evidence tendered by PW6, PW7, PW8, PW9 and PW10 lend assurance to the prosecution story. In this way, the oral testimony was corroborated by the medical evidence, which was duly supported by the peripheral evidence of the Investigating Officers and others. 20. The medical evidence corroborates the oral testimony of the eye-witnesses. The evidence tendered by PW6, PW7, PW8, PW9 and PW10 lend assurance to the prosecution story. In this way, the oral testimony was corroborated by the medical evidence, which was duly supported by the peripheral evidence of the Investigating Officers and others. 20. There is nothing on record to suggest that the accused-appellant was not present in the village on the date of incident as has been mentioned by the accused in his statement under Section 313 Cr.P.C. In other words, although the accused-appellant has taken a plea of alibi, but he is not amenable to prove the same. He has not been able to create suspicion in the prosecution story either. We have also considered the reasons assigned by the court below while convicting the accused-appellant. We do not find any reason to interfere in the judgment under challenge so far as the conviction of the accused-appellant is concerned. 21. Learned trial court discussed and appreciated the prosecution evidence correctly. Learned trial court, therefore, committed no mistake in holding that the prosecution was able to prove its case against the accused-appellant beyond a shadow of reasonable doubt, but for the offence punishable under Section 304 Part II IPC and not under Section 302 IPC, inasmuch as, no weapon was used by the accused-appellant while causing harm to the victim and nowhere it has come in the evidence that the accused-appellant knew before the date of incident that the victim was operated a few days ago. The appellant committed the offence with the knowledge that such bodily injury is likely to cause death, but without any intention to cause death. In normal circumstances, the injuries caused by kicks and fists would entail a punishment under Section 323 IPC or Section 325 IPC, but since in the instant case, the injuries were caused in the genitals of the victim, therefore, this Court is compelled to convict the appellant for the offence punishable under Section 304 Part II IPC. This Court is, therefore, persuaded by learned counsel for the appellant to hold that the accused-appellant cannot be held guilty under Section 302 IPC, but he should be convicted under Section 304 Part-II IPC. 22. In any case, the appellant's case falls under the circumstances mentioned in Exceptions to Section 300 IPC. This Court is, therefore, persuaded by learned counsel for the appellant to hold that the accused-appellant cannot be held guilty under Section 302 IPC, but he should be convicted under Section 304 Part-II IPC. 22. In any case, the appellant's case falls under the circumstances mentioned in Exceptions to Section 300 IPC. There cannot be any doubt that the appellant had knowledge that such bodily injury is likely to cause death, but it is also established that he committed culpable homicide not amounting to murder without premeditation in the heat of passion and without the offender having taken undue advantage or acted in a cruel or unusual manner. Considering the nature of injuries sustained by the victim, as also the ante-mortem injuries, this Court is inclined to hold that it is a case under Section 304 Para-II IPC and not under Section 302 IPC. 23. Thus, we hold that the learned trial court has correctly appreciated the evidence, but its conclusion about holding the appellant guilty of offence punishable under Section 302 IPC is incorrect. The conviction and sentence recorded by the trial court against the appellant in respect of offence punishable under Section 302 IPC is therefore, set aside. Instead, the appellant is convicted of the offence punishable under Section 304 Part II IPC and he is sentenced to undergo rigorous imprisonment for the period already undergone by him alongwith a fine of Rs. 10,000/-, which shall be paid to the next of kin of the deceased. [The appellant is in jail since 02.11.2012]. 24. Let the appellant be set at liberty forthwith, if he deposits the fine. Let the Jailor concerned be communicated accordingly for necessary compliance. 25. Let a copy of this judgment alongwith lower court record be sent to the Court below for ensuring compliance of this order. 26. The Criminal Appeal is thus disposed of with the modification in the penal section and sentence as above.