JUDGMENT 1. - The instant criminal appeal has been filed by the accused appellant Bharat Lal under Section 374(2) of the Cr.P.C. against the judgment dated 29.09.2006 passed by Addl. Sessions Judge (Fast Track), Banswara in Sessions Case No.63/2006 by which the learned trial court convicted the accused appellant for offence under Sections 302 and 447 of I.P.C. and passed the following sentence : Under Section 302 I.P.C.: Life Imprisonment with fine of Rs. 1,000/- and in default of payment of fine to further underto three months SI. Under Section 447 I.P.C.: Fine of Rs. 500/- and in default of payment of fine to further undergo 15 days' SI. 2. As per facts of the case, the complainant Thavra (PW2 1) lodged a report at Police Station Anandpur District Banswara alleging therein that in the intervening night of 5th and 6th May, 2006, his son Shanti Lal and his wife Kanta along with children were sleeping on separate coats in the house. At about 1-2 a.m., Kanta (PW-2) wife of his son cried and upon hearing her noise, the complainant, his son Kala, Rama and his wife Somali, daughters in law Tej and Kamla immediately rushed to the spot. At that time, after inflicting injury by sword to his son Shanti Lal, the accused appellant Bharat Lal ran away from the place of occurrence and they tried to catch him but accused ran away from the place of occurrence. 3. In the FIR, it was further alleged that in the evening on 4th May, one Lakhma (PW-5) asked Kanta wife of deceased that deceased Shantilal is having illicit relation with the wife of Bharat Lal, therefore, it is stated by appellant - Bharat Lal to Lakhma (PW-5) that he will kill Shanti Lal because he is having illicit relation with his wife. 4. Upon the aforesaid complaint, the SHO, Police Station Anandpuri District Banswara registered the FIR No.61/2006 (Ex.P/2) under Section 302 I.P.C. and commenced investigation. 5. In the investigation, accused Bharat Lal was 3 arrested on 6.5.2006 vide Ex.P/19 at about 10.30 a.m. and after his arrest upon his information under Section 27 of the Evidence Act on 08.05.2006, the sword was recovered vide Ex.P.18. The body of deceased was handed over to the family members after post-mortem and thereafter, statement of prosecution witnesses under Section 161 Cr.P.C. were recorded. The body of deceased was handed over to the family members after post-mortem and thereafter, statement of prosecution witnesses under Section 161 Cr.P.C. were recorded. After completion of investigation, challan was filed by the SHO, P.S. Anandpuri in the Court of Civil Judge (Junior Division) cum Judicial Magistrate, Bagidora from where case was committed to the Court of Sessions Judge, Banswara for trial but later on the Sessions Judge, traferred the case to the Court of Addl. District & Sessions Judge (Fast Track), Banswara for trial. 6. In the trial, statement of 17 prosecution witnesses were recorded and the statement of accused appellant under Section 313 Cr.P.C. were also recorded and in defence statement of DW-1 Gulab Singh were recorded by the trial Court. 7. The trial Court after recording the evidence of prosecution as well as defence, heard the final arguments of the parties and held the accused appellant Bharat Lal guilty for offence under Section 447 and 302 I.P.C. and passed aforesaid sentence vide judgment dated 29.09.2006 against the accused appellant. 8. In this appeal while challenging the validity of the said judgment, learned counsel for the appellant Mr. Mridul Jain vehemently argued that in this case prosecution has failed to prove its case beyond reasonable doubt because there are major contradiction in the statement of prosecution witnesses. While inviting attention towards the statement of PW-2 Kanta wife of deceased, it is submitted that as per prosecution story after raising hue and cry by Kanta, other witnesses reached upon the place of occurrence. Therefore, except Kanta (PW-2), no eye witnesses is on record to prove the incident and upon perusal of statement of Kanta, it will reveal that her testimony cannot be treated as eye witness because she deposed doubt in her statement with regard to seen of occurrence, therefore, Kanta cannot be termed as eye witness of the case. 9. Learned counsel for the appellant vehemently submitted that recovery of sword becomes doubtful for the simple reason that witness of recovery memo PW-14 Mohan and Lal and PW-15 Laxman Lal turned hostile before the Court and did not support the prosecution story, therefore, the finding for conviction based upon presumption, deserves to be quashed. 10. 9. Learned counsel for the appellant vehemently submitted that recovery of sword becomes doubtful for the simple reason that witness of recovery memo PW-14 Mohan and Lal and PW-15 Laxman Lal turned hostile before the Court and did not support the prosecution story, therefore, the finding for conviction based upon presumption, deserves to be quashed. 10. It is also argued that motive of incident is based upon the statement of PW-2 Kanta and PW-5 Lakhma because PW-2 Kanta stated in her statement that Lakhma (PW-5) informed her that due to illicit relation of deceased Shanti Lal with his wife, the accused Bharat Lal told her that on one day he will cut his head but in the Court Lakhma PW-5 turned hostile, therefore, testimony of Smt. Kanta PW-2 cannot be accepted so as to confirm the fact of motive because Kanta is highly interested witness being wife of deceased. 11. Learned counsel for the appellant lastly argued that even if the whole story of prosecution as stated by the witness Kanta with regard to threat given by accused for deceased to PW-5 Lakhma, the case cannot travel beyond Section 304 Part-I or II of I.P.C. because it is human nature that if any person is having information or evidence that his wife is having illicit relation with other person then obviously it is a matter of fact that such person will try to cause damage to such person having illicit relation with his wife, therefore, in this case also even if the prosecution case is accepted then also the accused appellant Bharat Lal cannot be convicted for offence under Section 302 I.P.C. because case cannot travel beyond Section 304 Part-I of I.P.C., therefore, the conviction of accused appellant under Section 302 I.P.C. may be set aside and it may be altered under Section 304 Part-I of I.P.C. 12. With regard to medical evidence, it is argued that as per the injuries mentioned in the post mortem report so also upon the statement of doctor Ramkesh PW-17, who conducted the post mortem, four injuries were found upon the body of deceased and as per the opinion of doctor cause of death was massive haemorrhage due to complete cut of right Anterior, Posterior Tibial artery & Peroneal artery. Meaning thereby, the deceased died due to massive haemorrhage which is result of injuries caused to him upon leg but it is also one of the important fact that no particular injury was found to be sufficient to cause death, therefore, it is submitted that conviction of accused appellant may be altered from Section 302 I.P.C. to Section 304 Part-I or II I.P.C. and sentence of life imprisonment may be reduced to 10 years. 13. Per contra, learned Public Prosecutor vehemently argued that it is a case in which with intention and preparation, the accused appellant inflicted grievous injuries upon the body of deceased by sword and even though the witness of recovery of sword turned hostile in the trial, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt because both the hostile witnesses of recovery accepted their signature upon the memos and investigating officer PW-10 has categorically stated before the Court that investigation was conducted by him and recovery of weapon sword was made in front of witnesses, therefore, the statement of Investigating Officer PW-16 Bakhtawar Singh cannot be discredited so as to prove the fact of recovery of sword at the instance of accused. Learned Public Prosecutor vehemently argued that as per information of doctor, injuries were caused by sharp edged weapon, therefore, there was motive behind inflicting injury to commit murder because although PW-5 Lakhma turned hostile before the Court but she deposed in her statement that accused appellant Bharat Lal informed her that Shanti Lal is having illicit relation with his wife, therefore, it cannot be said that the prosecution has failed to prove the fact of motive, so also, the trial Court has rightly relied upon the testimony of PW-2 Kanta for the purpose of accepting the prosecution case so as to convict the accused appellant for offence under Sections 302 and 447 I.P.C., therefore, the instant appeal may be dismissed. 14. After hearing learned counsel for the parties, we have perused the entire evidence so also the statement of prosecution witnesses as well as the finding given by the trial Court. 15. It emerges from the record that PW-1 Thavra - the author of FIR went on spot when accused appellant ran away after inflicting injury from the place of occurrence. After hearing learned counsel for the parties, we have perused the entire evidence so also the statement of prosecution witnesses as well as the finding given by the trial Court. 15. It emerges from the record that PW-1 Thavra - the author of FIR went on spot when accused appellant ran away after inflicting injury from the place of occurrence. The sole eye witness PW-2 Smt. Kanta categorically stated in her statement that in the night at about 2 p.m. on the date of occurrence, when she along with her husband deceased Shanti Lal was sleeping along with their children upon their own coats, the accused Bharat Lal came there with sword and inflicted injury upon the leg and chest of deceased. At that time, the witness PW-2 Smt. Kanta woke up and tried to catch the accused appellant Bharat Lal. Upon hearing her cry, his father in law PW-1 Thavra and mother in law Rama, brother in law and other elder brother in law Kalu kam on spot and all these persons saw the incident. Meaning thereby, the prosecution produced the eye witness PW-2 Smt. Kanta and she has categorically deposed in her statement that accused appellant Bharat Lal inflicted injury but further she stated that there was no quarrel between her husband Shanti Lal and accused appellant Bharat Lal but witness (PW-5) Lakhma close relative of deceased informed that before two days of the incident, the accused Bharat Lal told her that Shanti Lal is having illicit relations with his wife, therefore, he will cut his head but witness Lakhma PW-5 turned hostile and did not confirm the fact that accused appellant Bharat Lal told her that Shanti Lal is having illicit relation with his wife. Meaning thereby, there was motive to inflict injury by sword to the deceased which resulted into the death of Shanti Lal. 16. We have considered the argument of learned counsel for the appellant that Smt. Kanta PW-2 cannot be termed as eye witness. Meaning thereby, there was motive to inflict injury by sword to the deceased which resulted into the death of Shanti Lal. 16. We have considered the argument of learned counsel for the appellant that Smt. Kanta PW-2 cannot be termed as eye witness. The witness Smt. Kanta (PW-2) stated in her cross examination that " ;g lgh gS fd oDr ?kVuk esa uhan esa FkhA--------- ;g lgh gS fd esjh lkl] llqj o tsB o nsoj ds vkus ls igys Hkjr eq>s >Vdk nsdj Hkkx x;kA " fact that said witness categorically stated in her statement that accused appellant Bharat Lal was there and he was having sword with him and about 2 O' Clock in the night, therefore, the trial Court has rightly relied upon the testimony of PW-2 to the extent of presence of accused. 17. It is also very relevant to mention here that the sword which is recovered at the instance of accused appellant was sent for chemical examination to the FSL. The FSL, Udaipur Region, Udaipur gave its report Ex.P.10 dated 29.5.2006 in which it is categorically observed that upon cloths, sword and blood smeared soil, human blood of Group-B was found. Meaning thereby, the medical evidence has corroborated the prosecution story with regard to act of inflicting the injuries by the accused appellant. 18. We have also perused the statement of doctor PW-17 Dr. Ramkesh in which it is stated by him that four injuries were found upon the body of deceased at the time of postmortem. Meaning thereby, the medical evidence has corroborated the prosecution story with regard to act of inflicting the injuries by the accused appellant. 18. We have also perused the statement of doctor PW-17 Dr. Ramkesh in which it is stated by him that four injuries were found upon the body of deceased at the time of postmortem. The details of those injuries are as follows:- psydkjh esa ?kVukLFky ij e`rd ds 'ko dk iksLVekVZe fd;k x;k ml le; 'ko ds fuEu gkykr ik;s x;s%& e`rd ds 'kjhj ij vxM+u vk pwdh Fkh vkSj iksLVekVZe LVsfuax iwjs 'kjhj ij gks pqdh FkhA e`rd dh nksuksa vka[ks vk/kh [kqyh gqbZ FkhA e`rd ds 'kjhj dk ckgjh ijh{k.k djus ij fuEu pksVsa e`R;q iwoZ dkfjr gksuk ik;k x;kA e`rd ds 'kjhj ij lHkh pksVsa /kkjnkj gfFk;kj ls dkfjr FkhA%& " 1- e`rd ds ilyh ds nkfgus rjQ 10 x ⅓ peM+h dh xgjkbZ rd tks ck;sa ls nk;sa rjQ tk jgh FkhA mDr pksV gksjhtsUVy izd`fr dh FkhA yksdsVsM chVohu Qksj ,.M QhIFk bUVj dksLVy Lisl FkhA 2- dVk gqvk ?kko 3x Ms<+ ls0eh0 ekalisf'k;ksa rd xgjk ckbZ Hkqtk ds lkeus dh rjQA tks fd mij ls cu FkMZ o uhps ls nks@3 ds e/; mifLFkr Fkk Mk;jsDVsM gksjhtsUVy Qzkse nk;sa ls ck;sa rjQ FkkA 3- dVk gqvk ?kko ftldh yEckbZ 4x Ms<+ ls0eh0 ekalisf'k;kWa rd xgjk jkbZV vkeZ ij vkxs dh vksj uhps ls ou FkMZ o mij ls 2@3 ds chp esa nk;sa ls ck;sa rjQ vkscfydyh viokMZ FkkA 4- dVk gqvk ?kko ftldh yackbZ 10x3x6 ls0eh0 ?kqVus ds uhps Vhfc;k gM~Mh dVh gqbZ FkhA fQcqyk gM~Mh Hkh dVh gqbZ FkhA iwjk ?kko 8 ls0eh0 FkkA tks nkbZ ?kqVus ds uhps FkkA vkarfjd o cgkjh ufy;k dVh gqbZ FkhA isjksfu;y ul Hkh dVh gqbZ FkhA ely uoZl Hkh dVs gq;s FksA " ilfy esa dVk gqvk ?kko ik;k x;kA blds vykok ckdh lHkh vOo; lkekU; FksA gekjh jk; esa e`R;q dk dkj.k gkbZiksokysfud 'kkWd ls gqbZ FkhA tks fd iw.kZr; dVh gqbZ nkfgus lkbZM rjQ dh] vkxs dh [kwu dh uyh dVh gksus ls iwoZ isjksfu;y uyh dVus ls e`R;q gqbZ FkhA e`R;q dh le;kof/k 10 ls 15 ?kaVks ds Hkhrj dh FkhA ;g ckr lgh gS fd lkekU; ifjfLFkfr;ksa esa e`rd dh vkbZ pksV e`R;q ds fy;s i;kZIr FkhA iksLVekVZe fjiksVZ izn'kZ ih&21 gS ftl ij , ls ch esjs gLrk{kj gSA o lh ls Mh MkW0 ,l0ds0 xqIrk ds gLrk{kj gSA " 19. Upon perusal of above statement, it appears that out of four injuries, injury No.2 was upon left arm, injury No.3 was on right arm and injury No.4 was upon lower side of tibia but injury No.1 was upon right side of rib and as per opinion of doctor, the said injury was horizontal but no particular injury was found to be sufficient to cause death in ordinary course of nature. The following opinion was given by the medical board in the post-mortem report Ex.P/21 with regard to cause of death, which reads as under:- "After Postmortem of deceased we are find that the cause of death is Hypovalemic shock due to massive haemorrhage due to complete cut of right Anterior, Posterior Tibial artery & Peroneal artery. Cause of death :- Hypovolemic shock. Mode of Death :- Syncope Time since death :- 10-15 hours." 20. Upon perusal of oral statement of prosecution witnesses, more specifically the statement of PW-2 Kanta - wife of deceased and eye witness, we are of the opinion that the prosecution has proved the existence of occurrence and the fact that two days before incident accused appellant tole witness Lakhma (PW-5) that deceased Shanti Lal is having illicit relation with his wife, therefore, he will kill him by leading trustworthy evidence. Upon above evidence, we have considered the arguments of learned counsel for the appellant that for such motive whether accused appellant has rightly been convicted for offence under Section 302 I.P.C. or he was to be punished for offence under Section 304 Part-I I.P.C. 21. In our opinion, in young age, if any husband receives any information or knowledge that somebody is having illicit relation with his wife then obviously for the said reason, in the mind of any human being anger will occur. Herein this case, the deceased was also young man and appellant was also young person and if this was the reason then obviously, we have no hesitation to hold that the incident took place due to anger of appellant Bharat Lal. 22. In case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 , the Hon'ble Supreme Court elucidates difference between murder under Section 302 covered under Part-III of Section 300 and Section 304 IPC, which reads as under:- "14. 22. In case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 , the Hon'ble Supreme Court elucidates difference between murder under Section 302 covered under Part-III of Section 300 and Section 304 IPC, which reads as under:- "14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly"; 15. First, it must establish, quite objectively, that a bodily injury is present; 16. Secondly, the nature of the injury must be proved; These are purely objective investigations. 17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. 18. Once these three elements are proved to be present, the enquiry proceeds further and, 19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional." 23. Further, the Hon'ble Supreme Court in Pulicherla Nagaraju @ Nagaraja Redddy v. State of Andhra Pradesh (2006) 11 SCC 444 enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused upon which the accused can be convicted for offence under Section 302/149 IPC and the Hon'ble Supreme Court observed as under:- "18. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..." (emphasis supplied)" 24. We have applied above principle in present case and found that as per allegation of prosecution, Bharat Lal was having sword in his hand but inflicted two injuries upon arm and one upon leg and one simple injury was inflicted upon right rib but as per the opinion of the doctor, no particular injury was sufficient to cause death. We have applied above principle in present case and found that as per allegation of prosecution, Bharat Lal was having sword in his hand but inflicted two injuries upon arm and one upon leg and one simple injury was inflicted upon right rib but as per the opinion of the doctor, no particular injury was sufficient to cause death. Upon above medical evidence, it can be presumed that if any person is having sword in his hand and intention to kill other person then obviously he will inflict injury upon the head or neck but looking to the nature of injuries found upon the body of deceased, it can be said that deceased died due to massive haemorrhage due to complete cut of right Anterior, Posterior Tibial artery & Peroneal artery but it can be gather from the medical evidence and the fact that deceased was having illicit relation with the wife of appellant Bharat Lal and few days before the occurrence, this fact was disclosed by him before PW-5 Lakhma, therefore, in our opinion, it is a case of culpable homicide not amounting to murder. 25. On the basis of above discussions, we are of the opinion that it is a case in which the trial Court has committed an error while convicting the accused appellant for offence under Section 302 I.P.C. instead of 304 Part-I I.P.C. Therefore, the conviction of accused appellant under Section 302 I.P.C. is not sustainable in law. Consequently, the instant appeal is partly allowed. The conviction and punishment of accused appellant for offence under Section 302 I.P.C. is quashed and altered from Section 302 I.P.C. to Section 304 Part-I I.P.C. and accused appellant is hereby held guilty for offence under Section 304 Part-I I.P.C. and punished with sentence of 10 years rigorous imprisonment along with fine of Rs. 5,000/-.Appeal Partly Allowed. *******