JUDGMENT : This criminal appeal has been filed against the judgment and order dated 9.12.1981 passed by the Additional Sessions Judge II, Rampur in S.T. No. 27 of 1980 (State of U.P. Vs. Jaswant Singh & others) under Sections 302 read with Section 34 IPC, P.S. Bilaspur, District Rampur whereby the learned Judge convicted the appellant, Jaswant Singh under Section 304 IPC and sentenced to undergo 7 years rigorous imprisonment as well as fine of Rs. 1000/-and further one year rigorous imprisonment in default of payment of fine. 2. The brief facts giving rise to the present appeal are that a written report was handed over by the complainant, Banka Singh at the police station, Bilaspur which was scribed by the Murari Lal Saxena to the effect that on 26.6.1979 at about 10:00 AM, Km. Balbir Kaur daughter of the complainant was washing clothes sitting near the hand-pipe outside her house. Accused Jaswant Singh arrived there and having become naked and sat down in front of Km. Balbir Kaur to pass urine. On being objected by Km. Balbir Kaur, Jaswant Singh began to harl in-decent abuses to her and he was armed with lathi. On that occasion, the accused Hazara Singh and Maalik Singh also arrived there. Maalik Singh exhorted Jaswant Singh to kill Km. Balbir Kaur. On being exhorted, the appellant, Jaswant Singh struck lathi on the head of the Km. Balbir Kaur and on hearing some noise, Banka Singh, Gurmukh Singh and Jaimal Singh reached near the place of occurrence and saw the incident. On being challenged, the accused ran away from the occurrence. As a result of sustaining injury, Km. Balbir Kaur became unconscious and started vomiting. On the basis of written report, a case was registered at Case Crime No. 172 of 1979 under Section 308 IPC, was entered into GD No. 26 at 11:30 AM under Section 308 IPC, P.S. Bilaspur, District Rampur on 26.6.1979. 3. After registration of the FIR investigation was entrusted to S.I., D.P. Singh. Km. Balbir Kaur was succumbed to injury, therefore, the inquest report, photo laash, challan laash and letter to CMO were prepared. On receiving the postmortem report, the case was converted to under Section 302 IPC. After recording the statement of witnesses, a charge sheet was submitted under Section 302 IPC read with Section 34 against accused, Jaswant Singh, Hazara Singh and Maalik Singh. On receiving the postmortem report, the case was converted to under Section 302 IPC. After recording the statement of witnesses, a charge sheet was submitted under Section 302 IPC read with Section 34 against accused, Jaswant Singh, Hazara Singh and Maalik Singh. The accused have denied the charges and alleged their implication is false, therefore, they were charged under Section 302 IPC read with Section 34 IPC. 4. To bring home the guilt of the accused, prosecution has examined as many as seven witnesses i.e. PW-1, Banka Singh complainant, PW-2, Dr. O.N. Gupta, PW-3, Jaimal Singh, PW-4 Gurmukh Singh, PW-5, Devendra Prasad CP No. 47, PW-6, DP Singh IO and PW-7 I.S. Rizvi. Two court witnesses namely CW-1, Dr. S.K. Kulshreshta and CW-2, Dr. S.P. Gupta were examined. Head constable Babu Ram has filed affidavit to prove the link evidence stating that the dead body of the deceased Km. Balbir Kaur remained intact till the handing over of the dead body for autopsy. 5. PW-1, Sri Banka Singh has stated that deceased Km. Balbir Kaur was washing clothes sitting near the hand-pipe outside of her house. Accused Jaswant Singh arrived there and after having naked set down in front of Km. Balbir Kaur to pass the urine which was objected by the deceased on which Jaswant Singh began to harl in-decent abuse. At the same time co-accused Hazara Singh with Tabbal and Maalik Singh have arrived there. Co-accused Maalik Singh exhorted the accused-appellant Jaswant Singh to kill her. Therefore, the appellant, Jaswant Singh gave lathi blows to the deceased on her head. PW-3, Jaimal Singh and PW-4, Gurmukh Singh also supported the prosecution version and stated that accused Hazara Singh and Maalik Singh did not cause injury to the deceased. It was only the accused Jaswant Singh who caused lathi blows on the head of the deceased. 6. PW-2, Sri O.N. Gupta who had proved postmortem report Ex. Ka-2 and stated that in the postmortem report there was two injuries i.e. swelling 5 CmX3 Cm on left side face between eye-brow and left ear and swelling 6 CmX4 Cm on top of head towards left parietal region of head horizontally. There is depressed fracture of left temporal bone and fracture of frontal bone was found. Membranes and brain were found lacerated. Cause of death is coma as a result of head injury. 7. There is depressed fracture of left temporal bone and fracture of frontal bone was found. Membranes and brain were found lacerated. Cause of death is coma as a result of head injury. 7. PW-5, Devendra Prasad has stated on oath that he was posted as Head Moharir at P.S., Bilaspur. An FIR was prepared on the basis of the written report by him which is Ex. Ka-3 which was ented on G.D. which is Ex. Ka-4. 8. PW-6, D.P. Singh, S.I. has stated that on 26.6.1979 he was posted as S.I. at Bilaspur and during investigation, he prepared the site plan which is Ex. Ka-5, recorded the statement of the witnesses and submitted the charge sheet which is Ex. Ka-8. 9. PW-7, I.S. Rizvi, S.I. has stated that he prepared the Panchayatnama of deceased Km. Balbir Kaur under the instructions which is Ex. Ka-10. Photo laash Ex. Ka-11, Challan laash Ex. Ka-12 and reported for autopsy which is Ex. Ka-13 and hand over the laash of the deceased to the Constable Babu Ram to take away the laash to the mortuary. 10. CW-1, Dr. S.K. Kulshreshta has stated on oath that he had examined the injured Km. Balbir Kaur and on her body he found two injuries i.e. (1) incised wound 2 cm X 1.4 cm X skin deep on the left side of skull 13 cm above. The wound is surrounded by contusion in an area of 9 cm X 5 cm and (2) contusion 2cm X 2 cm on the left side of the forehead. The patient is semi conscious and vomiting present. 11. After concluding the prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C. who stated that they have been falsely implicated in the present case on account of enmity. 12. No evidence was given in defence. 13. The IInd Additional Sessions Judge after hearing and perusing the record came to the conclusion that prosecution had established the charge under Section 304 IPC against the appellant, Jaswant Singh and, therefore, convicted and sentenced the appellant as already mentioned hereinabove vide order and judgment dated 9.12.1981 and co accused Hazara Singh and Maalik Singh got acquitted from the charges levelled against them. 14. Feeling aggrieved from the aforesaid judgment, the appellant Jaswant Singh has preferred this appeal. 15. Heard Sri Nitin Agarwal, Amicus Curiae for the appellant, learned AGA and perused the record. 14. Feeling aggrieved from the aforesaid judgment, the appellant Jaswant Singh has preferred this appeal. 15. Heard Sri Nitin Agarwal, Amicus Curiae for the appellant, learned AGA and perused the record. 16. It is submitted by the Amicus Curiae for the appellant that the prosecution witnesses are full of contradictions and even the doctor has given wrong statement regarding the injury sustained by the deceased. 17. It is further submitted that the case as it stand would be covered under Section 325 IPC and not under Section 324 IPC and the sentence awarded is too severe. It is further argued that there is contradiction between the injury report prepared by the Dr. Kulshreshta and injury mentioned in the postmortem report. Therefore, it is more probable that near the hand pipe, she fell down and got injured. The whole prosecution story is absurd which does not stand to reason. 18. It has been further argued that accused, Jaswant Singh is relative of Banka singh and he would not have sat down after becoming naked in front of Km. Balbir Kaur to pass urine. It is also argued that evidence of eye witness, Banka Singh, Jaimal Singh and Gurmukh Singh should not be believed without independent corroboration as there was severe hostility and enmity between the parties. The grand-father of the witness Gurmukh Singh had been murdered and the present accused were accused in the case of the murder of Amrik Singh. In that murder case witness Banka Singh and Hoshiar Singh who is father of the witness Jaimal Singh, were witnesses. The accused had acquitted of the murder of Amrik Singh. After the murder of Amrik Singh, murder of Chanan Singhwho was father of the accused Jaswant Singh was committed. In that murder case Mahendra Singh, the father of witness Gurmukh Singh, Babu Singh, nephew of Banka Singh & other were accused. That case was concluded into conviction. Accused Maalik Singh is the son of the real sister of the father of the witness Banka Singh. On this basis, it is argued that there exists relationship between the prosecution witnesses and has to be judged with care and caution. 19. Per contra, learned AGA has contended that there is no contradiction between the injuries noted down by Dr. Kulshreshta and injuries mentioned in the postmortem report. Dr. Kulshreshta has mistakenly described the injury no. On this basis, it is argued that there exists relationship between the prosecution witnesses and has to be judged with care and caution. 19. Per contra, learned AGA has contended that there is no contradiction between the injuries noted down by Dr. Kulshreshta and injuries mentioned in the postmortem report. Dr. Kulshreshta has mistakenly described the injury no. 1 as incised wound whereas the wound is surrounded by the contusion but the learned AGA concedes that it is a case of culpable homicide not amounting to murder. 20. In this case, the main point of determination is that the incident did happen in the manner alleged by prosecution and whether the offence committed by the accused Jaswant Singh is squarely false within the purview of the culpable homicide not amounting to murder. 21. In the case in hand, Dr. Kulshreshta wrongly noted injury no. 1 as incised wound but the injury no. 1 is surrounded by contusion and in the postmortem report it was simply a contusion which was found at the time of conducting postmortem by Dr. O.N. Gupta, PW-2. Dr. O.N. Gupta did find the contusion at the place where the injury no. 1 was noted by the Dr. Kulshreshta. Had there been incised wound, it could not have evaporated in the postmortem by Dr. O.N. Gupta who would have certainly noted it. All the three prosecution witnesses, Banka Singh, Jaimal Singh and Gurmukh Singh have stated that it was the Jaswant Singh who is struck lathi blows and rest of the accused namely Hazara Singh and Maalik Singh did not struck any blow. PW-2, Dr. O.N. Gupta was suggested that Km. Balbir Kaur received injuries no. 1 and 2 from fell down on the earth. The witnesses said that it is possible to come from fall. Possibility is that as soon as the appellant caused lathi blows on the head of the deceased. In the natural course, she may fall on the earth and sustained another injury no. 1. Therefore, it does stand to reason that near the hand-pipe she fell down after receiving the lathi blow and received fatal injury no. 1. The presence of the prosecution witnesses near the occurrence place was much probable. The prosecution witnesses have stated that the accused Jaswant Singh has caused the head injury to Km. 1. Therefore, it does stand to reason that near the hand-pipe she fell down after receiving the lathi blow and received fatal injury no. 1. The presence of the prosecution witnesses near the occurrence place was much probable. The prosecution witnesses have stated that the accused Jaswant Singh has caused the head injury to Km. Balbir Kaur which is not specifically denied in the statement recorded under Section 313 Cr.P.C. Therefore, it is vivid that appellant, Jaswant Singh struck lathi blow on the deceased is a hard fact which is fully established from the evidence on record and facts and circumstances of the case and corroboration to it. 22. The alleged acts of accused which constitute the offence come within purview of culpable homicide amounting to murder or not amounting to murder? 23. In this respect Hon'ble Supreme Court in Kandaswamy Vs. State of Tamil Nadu, 2008(62) ACC 969 has held as under:- "This bring us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder is 'culpable homicide' but not vice-versa. Speaking generally, culpable homicide sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the I.P.C. practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of section 304. The ingredients of clause "thirdly" of section 300 IPC were brought out by the illustrious Judge in his terse language as follows: To put it shortly, the prosecution must prove the following facts before it can bring a case under section 300, "thirdly". First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. 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. Once these three elements are proved to be present, the enquiry proceeds further and, 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." Privy Council in Reg Vs. Govinda, 1876 ILR(Bom) 342, decided on 18.7.1876, held has under: "Whether the offence is culpable homicide or murder, depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide, it it is the most probable result, it is murder." 24. It has come in the evidence that when accused Jaswant Singh sat down to pass urine in order to tease Km. Balbir Kaur. There is no preplanned to commit the murder. On being objected by Km. Bapbir Kaur and she must have hurled abuses on Jaswant Singh who got enraged and struck lathi blows on her. On the spur of moment having become enraged due to objection and abuse hurled by Km. Balbir Kaur, Jaswant Singh struck lathi blows on her. Therefore, inference cannot be drawn that Jaswant Singh has a Menrea to commit her murder. There is no predetermination and intention to cause death, the offence in such case will always be punishable under section 304 Part II IPC as held by Hon'ble Apex Court in the cases of State of M.P. Vs. Deshraj, AIR 2004 SC 2764 and State of Punjab Vs. Guru Charan, AIR 1998 SC 3115 . 25. Therefore, It is clear that it is a case of culpable homicide not amounting to murder of third degree which is punishable under Section 304 Part-II IPC. Deshraj, AIR 2004 SC 2764 and State of Punjab Vs. Guru Charan, AIR 1998 SC 3115 . 25. Therefore, It is clear that it is a case of culpable homicide not amounting to murder of third degree which is punishable under Section 304 Part-II IPC. In this case minimum sentence would be upto four years and I certainly find that this case is to be a fit case to reduce the sentence of imprisonment to a period of four years and this will serve the end of justice. 26. In view of what has been indicated hereinabove, the appeal is partly allowed. The conviction of the appellant, Jaswant Singh under Section 304 Part-II is upheld. However, the sentence of the appellant under Section 304 Part-II is reduced to four years but imposition of fine shall remain intact. 27. Office is directed to send a copy of this order to the court concerned for compliance.