JUDGMENT : Gopal Krishan Vyas, J. 1. In this cr. jail appeal filed by the accused appellant Mukesh S/o Ram Lal, resident of village Rajaldeshar, District Churu, the accused appellant has challenged the judgment dated 9.7.2009 passed by the learned Addl. Sessions Judge, Ratangarh in Sessions Case No. 13/2007 whereby the accused appellant was convicted for the offences under Sections 447 and 302 IPC and following sentence was passed against him for both the offences which reads as under: "Under Section 447 IPC--Three months SI with fine of Rs.100/- and in default of payment of fine to further undergo 15 days additional sentence Under Section 302 IPC--Life imprisonment with fine of Rs.500/- and in default of payment of fine to further undergo three months additional sentence." 2. The learned trial court while convicting the accused appellant for aforesaid offences, acquitted the accused appellant from the charges levelled against him under Section 323 and 325 IPC. 3. As per facts of the case, the first information report No. 53 (Ex. P/17) was registered at Police Station Rajaldeshar, District Churu on 21.8.2008 on the basis of Parcha Bayan (Ex. P/16) given by the deceased Smt. Santosh Devi to the police. The contents of the Parcha Bayan (Ex. 3. As per facts of the case, the first information report No. 53 (Ex. P/17) was registered at Police Station Rajaldeshar, District Churu on 21.8.2008 on the basis of Parcha Bayan (Ex. P/16) given by the deceased Smt. Santosh Devi to the police. The contents of the Parcha Bayan (Ex. P/16) reads as under: **ipkZ c;ku Jhefr lUrks"k nsoh fnukad 21-8-2007 oDr 10-00 AM Jherh lUrks"k nsoh W/o Lo- /kekZjke tkfr nthZ mez 52 lky is'kk ?k:dk;Z fuoklh okMZ ua-3 jktynslj gky tSj bZykt ljdkjh vLirky jktynslj us c;ku fd;k fd esjk o esjs nsoj jkeyky dk ?kj okMZ ua-3 esa ikl&ikl esa iM+rk gSA gekjk nksukas ifjokjksa dk vkil esa ?kjsyw ckr dks yksdj dbZ fnuksa ls eueqVko py jgk gSA gekjs ?kj ds fiNs ckM+k gSA ftldh ydM+h rksM+us dh ckr dks ysdj vkt fnukad 21-8-2007 dks lqcg djhc 8 1@2 o 9 cts lh dh ckr gSa fd esjs nsoj dk yM+dk eqds'k S/o jkeyky tkfr nthZ fuoklh jktynslj vius ?kj ls rS;kjh djds vius gkFk esa bZVa dk iRFkj ysdj gekjs ?kj esa vk;k vkSj vkrs gh bZV ds iRFkj dks gkFk esa yh;s gqos esjs lhj esa pksV ekjh ftlls esjs [kwu vkus yxk rks eSaus tksj tksj ls vkokt dh rks esjh yM+dh lksuw mez djhc 20 lky rFkk gekjs ?kj iM+kSlh ckypUn iztkir dh vksjr dkuhnsoh Hkkx dj vkbZ ftUgksus chp cpko dj NqM+ok;k fQj eqds'k vius ?kj dh rjQ Hkkx x;kA fQj esjk ?kj iM+kSlh txnh'k izlkn S/o uojruey tkfr nthZ fuoklh okMZ ua-3 jktynslj vk x;k ftlus eq>s vLirky esa ykdj bZykt gsrq HkrhZ djok fn;kA c;ku nsrh gwa dk;Zokgh djsA v- fu- Thumb impression Jherh lUrks"k nsoh** 4. As per evidence on record the injured Santosh Devi was examined by the medical officer of Primary Health Center, Rajaldeshar on 21.8.2007 and in injury report Ex. P/12 was given by him in which two injuries were found upon the body of injured. The head constable of Police Station Rajaldeshar prepared site plan and details of the occurrence and Halat Mauka (Ex. P/4 and P/4A). Due to seriousness of condition of the injured she was taken to the PBM Hospital, Bikaner on 21.8.2007 for further treatment. The cloths of the injured Santosh Devi were taken in possession by the investigating officer vide Ex. P/2 on 23.8.2007 at 8.15 pm. P/4 and P/4A). Due to seriousness of condition of the injured she was taken to the PBM Hospital, Bikaner on 21.8.2007 for further treatment. The cloths of the injured Santosh Devi were taken in possession by the investigating officer vide Ex. P/2 on 23.8.2007 at 8.15 pm. The blood sustained soil and simple soil were taken from the place of occurrence vide Ex. P/5. During investigation, the injured Santosh Devi died at PBM Hospital, Bikaner, therefore, Panchnama of the dead body (Ex. P/7) was prepared on 24.8.2007 and offence under Section 302 IPC was added for investigation. 5. The post mortem of dead body of late Santosh Devi was performed at PBM Hospital, Bikaner on 24.8.2007 and report (Ex. P/13) was given to the investigating officer for investigation. 6. In the post mortem report an opinion was given by the board that cause of death is comma due to head injury as mentioned in this Pm report ante mortem and sufficient to cause death in ordinary course of nature. 7. The accused appellant was arrested vide Ex. P/22 in presence of two witnesses Jaiveer Singh and Ganpant Ram and upon information (Ex. P/23) given by the accused appellant under Section 27 of the Evidence Act, one half piece of brick was recovered from the back sight of room of the house of the accused appellant. The investigating officer sent all the articles including blood smeared soil, controlled soil, petticoat, blouse and Sadi of the deceased alongwith Khurra (piece of brick) to the FSL and after examination, the FSL report (Ex. p/25) was given by the Forensic Laboratory. 8. As per FSL report human blood of 'B' Group was found upon all the articles. After completion of investigation, the police submitted a charge-sheet against the accused appellant in the court of ACJM, Ratangarh under Section 449, 302, 325 and 323 IPC from where the case was committed to the court of District & Sessions Judge, Rajgarh for trial, but later on case was transferred to the court of Addl. Sessions Judge, Ratangarh for trial. 9. After providing an opportunity of hearing, the learned trial court framed charge against the accused appellant for the offences under Sections 449, 302, 325 and 323 IPC and in support of prosecution case, statements of 14 prosecution witnesses were recorded and 25 documents were exhibited from prosecution side. Sessions Judge, Ratangarh for trial. 9. After providing an opportunity of hearing, the learned trial court framed charge against the accused appellant for the offences under Sections 449, 302, 325 and 323 IPC and in support of prosecution case, statements of 14 prosecution witnesses were recorded and 25 documents were exhibited from prosecution side. On completion of prosecution evidence, the statement of accused appellant were recorded under Section 313 Cr.P.C. in which he denied all the allegations made by the prosecution witnesses but did not produce any oral or documentary evidence in defence. 10. The learned trial court after providing an opportunity of hearing to both the parties, finally convicted the accused appellant for the offence under Section 47 and 302 IPC but acquitted the accused appellant from the charges levelled against him under Section 323 and 325 IPC vide judgment dated 9.7.2009 and said judgment is under challenge in this appeal. 11. At the threshold learned counsel for the appellant submits that so called eye witnesses PW-1 Sonu, PW-2 Kani Devi and PW-3 Jagdish turned hostile and did not support the prosecution case, but finding of conviction of learned trial court is based upon testimony of deceased in her Parcha Bayan and on the basis of recovery of blood stained piece of brick, upon which blood group 'B' was found as per FSL report, therefore, it is obvious that prosecution has failed to prove its case beyond reasonable doubt, therefore, it is a case in which the learned trial court has committed an error to convict the accused appellant for alleged offence under Section 302 and 447 IPC. 12. Learned counsel for the appellant further submits that to prove the case it is necessary for the prosecution to lead trustworthy and transparent evidence but here in this case, there is no evidence of eye witnesses to connect the accused appellant with the alleged crime. 12. Learned counsel for the appellant further submits that to prove the case it is necessary for the prosecution to lead trustworthy and transparent evidence but here in this case, there is no evidence of eye witnesses to connect the accused appellant with the alleged crime. As per prosecution case, no weapon was used for inflicting any injury to the deceased, so also, there is close relationship between the deceased and the accused appellant and even as per statement of injured, the occurrence took place all of sudden and as per allegation of prosecution the accused appellant inflicted one injury upon the head by the piece of brick and run away, therefore, even if entire prosecution case is accepted then also, the finding of guilt recorded by the learned trial court for offence under Section 302 IPC is not sustainable in law. The following specific grounds are raised by the learned counsel for the appellant: "A. Both the so called eye witnesses whose names were disclosed by the injured in her Parcha Bayan did not support the allegation levelled by the deceased in her statement known as Parcha Bayan. B. Admittedly, piece of brick cannot be termed as weapon, therefore, recovery of said piece of brick cannot be taken into account so as to hold accused appellant guilty for offence under Section 302 IPC. C. There is no allegation for repeated injury, which is evident from Parcha Bayan and injury report itself in which soon after the occurrence at the time of examination by the medical doctor at Rajaldeshar Government Hospital after examination prepared injury report (Ex. P/12) in which two injuries were found upon the body of the deceased, the first injury is lacerated wound and second is abrasion. Therefore, it is a case in which prosecution has failed to prove its case beyond reasonable doubt. Therefore, the judgment impugned may kindly be quashed. D. In the alternative, learned counsel for the appellant submits that even if it is presumed that incident took place as per the statement (Ex. Therefore, it is a case in which prosecution has failed to prove its case beyond reasonable doubt. Therefore, the judgment impugned may kindly be quashed. D. In the alternative, learned counsel for the appellant submits that even if it is presumed that incident took place as per the statement (Ex. P/16) given by the deceased then also, no offence under Section 302 IPC is made out because as per prosecution case itself only one injury was caused by the accused appellant to deceased therefore, the finding of conviction for offence under Section 302 IPC may kindly be set aside and it may be altered to offence under Section 304 Part I IPC while maintaining the conviction for offence under Section 447 IPC." 13. In support of his arguments, the learned counsel for the appellant cited the judgment of the Hon'ble Supreme Court delivered in the case of State of HP v. Ram Pal reported in (2006) 2 SCC (Cri.) 165 and Arjun v. State of Maharashtra, reported in 2012 Cr.L.R. (SC) 506. 14. While inviting attention towards the aforesaid judgments, it is submitted that it is not a case of murder, but it is a case of culpable homicide not amounting to murder, therefore, while acquitting the accused appellant from the offence under Section 302 IPC, the conviction may be altered for offence under Section 304 Part I IPC and sentence may be reduced from life imprisonment to already undergone. 15. Per contra, learned Public Prosecutor submits that although PW-1 Sonu, PW-2 Kani Devi and PW-3 Jagdish turned hostile whose names were disclosed by the deceased in her statement but it cannot be said that any error has been committed by the learned trial court so as to hold accused appellant guilty for offence of murder of Santosh Devi. As per learned Public Prosecutor the head which is vital part of the body upon that the injury was inflicted by brick, therefore, obviously it can be gathered from the fact that there was intention of the accused appellant so as to cause death of the deceased. Therefore, the finding of the learned trial court does not require any interference. As per learned Public Prosecutor the head which is vital part of the body upon that the injury was inflicted by brick, therefore, obviously it can be gathered from the fact that there was intention of the accused appellant so as to cause death of the deceased. Therefore, the finding of the learned trial court does not require any interference. Learned Public Prosecutor further argued that upon cloths of the deceased and the brick recovered at the instance of the accused appellant 'B' group was found, therefore, it is more than enough to show that accused appellant is guilty for offence under Section 302 IPC. 16. Learned Public Prosecutor further argued that in this case although there is no evidence of motive on record, but fact remains that injuries were caused to the deceased Santosh Devi by the accused appellant which is cause of death, therefore, this appeal may kindly be dismissed. 17. After hearing the learned counsel for the parties, we have perused the entire evidence and finding so also judgments cited by the learned counsel for the appellant. 18. It is settled principle of law that the motive/intention is main ingredient for commission offence under Section 302 IPC and if motive or intention are absent then obviously accused cannot be convicted for offence under Section 302 IPC. In this case, the quarrel took place for breaking one piece of wood on 21.8.2007 in the morning in between 8.30 to 9.00 am, at that time, the accused appellant came on spot having brick in his hand and inflicted injury upon the head of the deceased. Admittedly, deceased died after three days from the date of incident due to injury caused by the accused appellant by brick, therefore, it cannot be said that there was any intention to kill the deceased, more so, it is a case in which due to sudden quarrel in between the parties, injury was caused by the accused appellant to the deceased Santosh Devi, who died after three days of the incident. 19. It is very important to observe that three close relative witnesses of deceased turned hostile and did not support the prosecution case, but we cannot lose sight of the fact that blood stained brick was recovered upon the information given by the accused appellant was sent for chemical examination alongwith cloths of the deceased, upon that blood of 'B' group was found. Therefore, in our opinion, prosecution has established the fact that injuries were caused by the accused appellant to the deceased by brick in spur of moment without any intention due to sudden quarrel. 20. In view of the fact that there is no allegation of repeated blow, so also, upon the fact that injury was inflicted by brick and reason for quarrel was not so serious, therefore, we are of the opinion that it is not a case of murder but it is a case of culpable homicide not amounting to murder. 21. In the case of State of HP v. Ram Pal reported in (2006) 2 SCC (Cri.) 165, the Hon'ble Supreme Court, gave following finding upon the identical facts. The paras Nos. 5 to 8 of the said judgment are as follows: "5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back. 6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW-3 and the deceased. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW-3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased. 7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice. 8. For the reasons stated, this appeal fails hence dismissed." 22. The Hon'ble Apex Court in the case of Arjun v. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 held that if motive is absent and there was allegation of prosecution for inflicting one injury may be that too by force, then also no offence under Section 302 IPC is said to be made out because offence cannot travel beyond offence under Section 304 Part I IPC. The relevant para No. 17 of the said judgment is quoted herein below for ready reference: - "17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat and passion and that the appellant had not taken any undue advantage or acted n a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the forth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part I IPC and we do so." 23. Upon assessment of entire evidence of this case coupled with the aforesaid judgments, we are of the option that it is not a case in which finding of the learned trial court for commission of offence under Section 302 IPC is sustainable in law because as per facts and evidence, the offence does not travel beyond offence under Section 304 Part I IPC. 24. In view of above discussion, the instant appeal is partly allowed. The conviction of the accused appellant for offence under Section 302 of IPC imposed by the learned Addl. Sessions Judge, Ratangarh, District Churu vide judgment dated 9.7.2009 in Sessions Case No. 13/2007 is hereby altered to Section 304 Part I of IPC and the sentence of life imprisonment is reduced to 7 years RI while maintaining the order of fine. The conviction and sentence for the offence under Section 447 IPC as imposed by the learned trial court is hereby maintained. The accused appellant Mukesh has served the sentence of seven years, therefore, the accused appellant may be released forthwith, if not required in any other case.