JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment and order, dated 25.03.2013, rendered by the learned Additional Sessions Judge, Fast Track Court, Chamba, District Chamba, H.P., whereby the appellant-accused, who was charged with and tried for an offence punishable under Section 302 of the Indian Penal Code, has been convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 20,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months. 2. Case of the prosecution, in a nut-shell, is that complainant Manoj Kumar (PW-1) on 11.03.2012 around 12 noon was in his courtyard with his cattle and his deceased father Balo Ram was helping him. Prithi Chand (PW-2) and Kamla Devi (PW-5) were sitting on the lintel of cow shed of complainant Manoj Kumar (PW-1). Complainant had already tied four animals and the fifth animal ran away towards the house of accused. His father deceased Balo Ram followed to bring that animal back. But, in the meanwhile, the accused who was armed with axe, attacked Balo Ram on his scalp with force. Deceased Balo Ram started bleeding profusely and raised screams. Complainant Manoj Kumar (PW-1) rushed to the spot and in the meanwhile his uncle Prithi Chand (PW-2), his wife and sister-in-law Kamla Devi (PW-5) also reached on the spot. After a while, Desho brother and mother of accused also came to the spot and lifted deceased Balo Ram and brought him to the road side on cot. Deceased Balo Ram was brought to R. H. Chamba, where he was declared dead by the doctor. Statement of complainant Manoj Kumar (PW-1) was recorded vide Ex. PW1/A. Post mortem was got conducted on next day, i.e., 12.03.2012 at the instance of police. FIR Ex. PW14/B was registered. Blood soil was lifted from the spot. Accused made a disclosure statement on 13.3.2012 vide Ex. PW3/A under Section 27 of the Indian Evidence Act in the presence of Moti Ram (PW-3) and Amko Ram that he had kept axe used by him as weapon of offence against deceased Balo Ram at the place of which he had exclusive knowledge and that he would get the same recovered from his house. Thereafter, axe Ex. P6 was recovered. The investigation was completed and the challan was put up after completion of all the codal formalities. 3. Thereafter, axe Ex. P6 was recovered. The investigation was completed and the challan was put up after completion of all the codal formalities. 3. The prosecution had examined 17 witnesses to support its case. The accused was also examined under Section 313 of the Cr. P.C. According to him, he was falsely implicated. The accused was convicted and sentenced, as noticed herein above. Hence this appeal. 4. Mr. C.D. Negi, learned Legal Aid Counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant. 5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment and order, dated 25.03.2013. 6. We have heard the learned counsel for the parties and gone through the judgment and records carefully. 7. PW-1 Manoj Kumar deposed that he was tying animals with the help of his father. His uncle Prithi Chand and his wife Veena Devi, Kamla Devi, who is sister-in-law of his uncle Prithi Chand were sitting on the lintel of his cow-shed. He had already tied four animals and the fifth animal ran away towards the house of accused and his father chased to bring it back, but in the meanwhile accused, who was armed with an axe, attacked his father with axe on his scalp with force. His father started bleeding profusely. He screamed. He rushed to the spot and his uncle Prithi Chand, his wife and his sister-in-law also joined. After a while, Desho, brother of accused and his mother also came to the spot and lifted his father and brought him to the road head on cot. His father was declared dead on reaching Regional Hospital, Chamba. His statement was recorded vide Ex. PW1/A. In his presence, accused handed over the clothes worn by him at the time of occurrence. These were taken into possession vide seizure memo Ex. PW1/B. Shirt Ex. P- 2, Pajama Ex. P-3, Cap Ex. P-4 and Jacket Ex. P-5 were also taken into possession. In his cross-examination, he deposed that his father had no landed dispute or any kind of animosity with the accused. His father was hit with axe from sharp edge by the accused. The accused had given two blows. The second blow was given by the accused when his father had fallen down and blood started oozing out. The second blow was also given on the scalp. His father was hit with axe from sharp edge by the accused. The accused had given two blows. The second blow was given by the accused when his father had fallen down and blood started oozing out. The second blow was also given on the scalp. Accused appeared on the scene all of a sudden. He attacked his father from behind. 8. PW-2, Sh. Prithi Chand deposed that his deceased brother and his son Manoj were busy in tying cattle. After tying 2-3 animals, his deceased brother went to tie another animal, but in the meanwhile, he heard screams “Mere Baba-Mere Baba” of his deceased brother and he had seen accused armed with an axe. He shouted at the accused and questioned him. He lifted his brother from the spot with the help of Manoj, besides Kamla, Veena and Guro. After a while, Desho, brother of accused also reached on the spot. Wife of the accused had also come on the spot. Many people had gathered on the spot. Deceased brother was laid on the cot and he was brought to Regional Hospital, Chamba. He was declared dead by the doctor. Blood stained soil was also lifted from the spot and was put in polythene bag. Accused produced his clothes in his presence. He identified clothes Ex. P-2 to Ex. P-5. In his cross- examination, he deposed that two blows were given to his brother by accused. Blow was given with axe on the scalp with force. 9. PW-3, Sh. Moti Ram deposed that the accused while in custody made a disclosure statement Ex. PW3/A to the effect that the axe which he had used as a weapon of offence, had been kept by him in his residential house of which he had exclusive knowledge and that he could get the same recovered. He along with Amko Ram signed Ex. PW3/A. Accused led the police party in their presence to his residential house and got the axe recovered which he had kept in the second storey in a corner of his room. Axe was picked up from there at his instance by the police and vide seizure memo Ex. PW3/B. 10. PW-4 Guro Devi deposed that her deceased husband and son Manoj were tying the animals. In the meanwhile, she heard screams “bachao bachao” of her husband and her son Manoj. Axe was picked up from there at his instance by the police and vide seizure memo Ex. PW3/B. 10. PW-4 Guro Devi deposed that her deceased husband and son Manoj were tying the animals. In the meanwhile, she heard screams “bachao bachao” of her husband and her son Manoj. She came out and found her husband lying down with blood oozing out of his head. She had seen accused holding axe in his hands. Five-six persons had gathered on the spot. Her husband was lifted by the persons present there and was taken to the hospital at Chamba. Her husband was declared dead in the hospital. Accused used to harbor illwill against her husband that her husband had subjected his wife to divine displeasure so that she may not settle down in the matrimonial house. Once accused had also attacked his wife with axe. Before this occurrence, they had no altercation with the accused. Her husband often used to advise accused to have cordial relations with his wife. 11. PW-5 Kamla Devi deposed that deceased Balo Ram and his son Manoj were seen tying domestic animals. In the meanwhile, Balo Ram went after another animal and accused came from behind and attacked him with axe on his head. She heard screams of Balo Ram saying “baba mareya” “baba mareya” and she had seen the accused giving blow with axe. Balo Ram collapsed on the spot. She rushed to the spot with her sister’s husband Prithi Singh and Manoj was already present there. She identified axe Ex. P-6. 12. PW-6 Sh. Ajay Kumar, Patwari has prepared Aks Ex. PW6/A and issued Jamabandi Ex. PW6/C. PW-7 Riya Sharma, PW-8 Constable Vinod Kumar, PW-9 Constable Vikram Singh and PW-10 Constable Vijay Kumar are formal witnesses. PW-11 Dr. Navdeep Joshi has conducted the post mortem along with PW-12 Dr. Varun Sharma. He has noticed the following injuries: “I-External Appearance ……..(ii) Wounds bruises position size nature –open sharp cut injury, extending from right frontal area, extending to right upper ear lobe, semi lunar shaped, brain matter seen with the depressed fracture of skull of right parital region. (iii) Mark of Ligature on neck and dissection, etc.-Not seen.” He issued post mortem report Ex. PW11/B. PW-12 Dr. Varun Sharma has conducted the post mortem along with PW-11 Dr. Navdeep Joshi. PW-13 HC Pawan Kumar deposed that the case property was deposited with him. (iii) Mark of Ligature on neck and dissection, etc.-Not seen.” He issued post mortem report Ex. PW11/B. PW-12 Dr. Varun Sharma has conducted the post mortem along with PW-11 Dr. Navdeep Joshi. PW-13 HC Pawan Kumar deposed that the case property was deposited with him. He has sent the same RFSL, Dharamshala through Constable Vikram Singh vide RC No. 56/12 Ex. PW13/B. 13. PW-14, ASI Prem Dass and PW-15 SI Jagroop Singh are formal witnesses. PW-16 ASI Joginder Singh deposed that around 2:00 p.m., a telephonic message was received from Hospital through Medical Officer as per DDR Ex. PW-10/A. Thereafter, he along with HC Rajinder Kumar, Constable Vinod Kumar and Constable Abdesh Kumar proceeded to Regional Hospital, Chamba. Statement of PW-1 Manoj Kumar was recorded under Section 154 Cr. P.C. vide Ex. PW1/A, upon which rukka Ex. PW1/A was sent through Constable Abdesh Kumar to Police Station, Sadar Chamba for registration of FIR. Post mortem of deceased Balo Ram was got conducted on the following day. Viscera, clothes worn by the deceased and the blood sample were preserved by the Medical Officer. He prepared the spot map Ex. PW16/A. He also lifted blood stained soil from the spot in the presence of witnesses Prithi Chand and Amar Singh vide memo Ex. PW2/B. Accused made a disclosure statement Ex. PW3/A on 13.3.2012 under Section 27 of the Indian Evidence Act in the presence of witnesses Moti Ram and Amko Ram that the axe by which he had inflicted injury on the person of deceased Balo Ram, he could get the same recovered from his house. Axe Ex. P-6 was got recovered. Map Ex. PW16/G with regard to place from where axe Ex. P-6 was recovered at the instance of accused was also prepared by him. The spot was got demarcated. PW-17 S.I. Shakti Singh Pathania is a formal witness. 14. Case of the prosecution, precisely is that PW-1 Manoj Kumar along with his father were tying animals in their Courtyard. Accused appeared on the spot and gave blow on the head of deceased Balo Ram. Balo Ram was taken to hospital. He was declared dead. Post mortem was got conducted. Post mortem report is Ex. PW 11/B. The death was caused due to head injury leading to massive intracranial laceration, fracture and shock. Accused appeared on the spot and gave blow on the head of deceased Balo Ram. Balo Ram was taken to hospital. He was declared dead. Post mortem was got conducted. Post mortem report is Ex. PW 11/B. The death was caused due to head injury leading to massive intracranial laceration, fracture and shock. The probable duration between death and post mortem was within 24 hours and between injury and death was within two hours. The injuries could be caused by the weapon of offence Ex. P-6 as per the statement of PW-11 Dr. Navdeep Joshi. 15. The motive attributed to the accused by the prosecution is that the deceased never wanted the accused’s wife to settle in her matrimonial house. Prosecution has relied upon the statement of PW-4 Guro Devi, wife of the deceased to this effect. According to her, the accused used to harbor ill will against her husband that her husband had subjected his wife to divine displeasure so that she could not settle down in the matrimonial house. She has also stated in her examination-in-chief that her husband often used to advise accused to have cordial relations with his wife. She has categorically stated in her examination-in-chief that before this incident, they had no altercation with the accused. The motive attributed to the accused is not believable, more particularly when the relations of the accused with the deceased were never strained. In Ex. PW1/A, it was stated that PW-1 Manoj Kumar was tying his animals in the courtyard. His father Balo Ram was assisting him. In the meantime, accused came on the spot. He was carrying an axe in his hand. Accused gave a blow on the head of his father. His father fell down and blood started oozing out. However, in his statement made before the Court while appearing as PW-1, Manoj Kumar has stated that he was tying the animals with the help of his father. He had already tied four animals and the fifth animal ran towards the house of the accused. His father chased to bring animal back, but in the meanwhile accused who was armed with an axe attacked his father with the same on his scalp with force. There is variance in the statement of Manoj Kumar recorded under Section 154 Cr. P.C. vide Ex. PW1/A and while appearing as PW-1. It is not stated in Ex. His father chased to bring animal back, but in the meanwhile accused who was armed with an axe attacked his father with the same on his scalp with force. There is variance in the statement of Manoj Kumar recorded under Section 154 Cr. P.C. vide Ex. PW1/A and while appearing as PW-1. It is not stated in Ex. PW1/A that the father of PW-1 had tried to bring one animal back and in the meanwhile the accused came and hit his father on the scalp. What has been stated in Ex. PW1/A is that they were tying the animals and Balo Ram was hit on the scalp by the accused. As per Ex. PW1/A, the accused has given blow on the head of the deceased. It is not stated that the accused has given two blows on the head of deceased. PW-1 Sh. Manoj Kumar and PW-2 Sh. Prithi Chand have stated in their cross-examination that the deceased was given two blows on his head. However, according to the post mortem report, only one injury was noticed by PW-11 Dr. Navdeep Joshi on the head of deceased. However, fact of the matter is that the accused has given one blow on the scalp of the deceased from the sharp edge of the axe. The incident was not pre-meditated. There is only open sharp cut injury extending from right frontal area, extending to right upper ear lobe, semi lunar shaped, brain matter seen with the depressed fracture of skull of right parital region. There was no prior enmity between the parties. It is also not clear how the incident had occurred and why the accused had caused injuries to the deceased. If the accused had the intention to kill the deceased, he would have given repeated blows on the head or vital parts of the deceased with axe. 16. We are of the considered view after analysing the evidence that it is not a case of murder, but the accused had the knowledge that his act would result in the death of the deceased and, thus, this case would fall within the ambit of Section 304-I and not under Section 302 of the Indian Penal Code. 17. Accordingly, the appeal is partly allowed and the accused is convicted under Section 304-I of the Indian Penal Code instead of Section 302 of the Indian Penal Code. 17. Accordingly, the appeal is partly allowed and the accused is convicted under Section 304-I of the Indian Penal Code instead of Section 302 of the Indian Penal Code. The respondent-State is directed to produce the accused for hearing on the question of quantum of sentence on 29.07.2015. Production warrant be issued accordingly.