JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 14.02.2011/ 19.02.2011, passed by learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 13-I/VII-2010, titled as State of H.P. vs. Gurnam Singh @ Gama, whereby the accused stands convicted of the offence punishable under the provisions of Section 304 (Part-I) of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of 10 years and pay fine of Rs. 25,000/- and in default thereof to undergo simple imprisonment for a period of one year, he has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 31.1.2010 at about 2.00 p.m. at Malkhana, Tehsil Indora, accused without any provocation or sufficient cause assaulted deceased Amar Singh. With an intent of causing death, accused gave fist and kick blows to Amar Singh. The incident was witnessed by Sawhni Devi (PW-7), Swarna Devi (PW-8) and Balraj (PW-9). Maan Singh (PW-10), who is the son of the deceased also reached the spot and took the deceased to the hospital. Prior thereto, the deceased lodged a complaint at Police Post Thakurdwara, which led to registration of F.I.R. No. 28 dated 31.1.2010 (Ext. PW-14/A) against the accused at Police Station Indora, Distt. Kangra. Investigation of the case so conducted by ASI Suresh Kumar (PW-13) revealed that the deceased who was referred to the Civil Hospital, succumbed to the injuries on 31.1.2010. Post mortem of the deceased was got conducted on 1.2.2010 by Dr. Raman Sharma (PW-18) and Post Mortem Report (Ext.PW-18/B) taken on record. The cause of death being multiple injuries on the head leading to brain hemorrhage and cardio-respiratory failure. The accused was arrested. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 302 IPC, to which he did not plead guilty and claimed trial. 4. In order to prove its case, in all, prosecution examined eighteen witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused. 5. 4. In order to prove its case, in all, prosecution examined eighteen witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused. 5. Appreciating the material on record, including the testimonies of the witnesses, though trial Court acquitted the accused of the charge of murder but convicted him for an offence punishable under the provisions of Section 304 (Part-I) IPC and sentenced as aforesaid. Hence, the present appeal. 6. We have extensively heard learned counsel appearing on both the sides and perused the record. 7. Mr. Surender Sharma, learned counsel for the appellant assails the judgment on the following grounds: (i) While convicting the accused, court below erred in correctly and completely appreciating the testimonies of the prosecution witnesses; (ii) In any event, accused ought to have been convicted under Section 304 (Part II) and not under Section 304 (Part I) IPC, for there was no intent on the part of the accused to have killed the deceased; and (iii) In the alternative, sentence imposed being much on the higher side and considering the socio economic background as also good conduct of the accused, same be reduced. 8. On the other hand, Mr. R.S. Verma and Mr. V.S. Chauhan, learned Addl. Advocate Generals assisted by Mr. Vikram Thakur & Mr. Puneet Rajta, learned Dy. A.Gs. appearing for the respondent-State, supports the judgment for the reasons set out therein. 9. From the perusal of the testimonies of Sawhni Devi (PW-7), Swarna Devi (PW-8), Balraj (PW-9) and Maan Singh (PW-10) as also HHC Shashi Pal (PW-11) it is quite apparent that immediately after the incident, the deceased was first taken to his residence and then in the vehicle of Surinder Kumar (PW-12), to Police Post Thakurdwara where HHC Shashi Pal (PW-11) recorded his statement which was thumb marked and entry in the daily diary (Ext. PW-11/A) recorded. Only thereafter HC Desh Raj (PW-6) took the deceased for medical treatment to the hospital. Undisputedly at the time of medical examination, though Dr. Swati Roy (PW-17) found the deceased to be in a semiconscious state, but in severe pain and agony. He was not responding properly. This was at about 6.20 p.m. But same day at about 6.45 p.m. the deceased passed away. 10. Now in the complaint (Ext. Undisputedly at the time of medical examination, though Dr. Swati Roy (PW-17) found the deceased to be in a semiconscious state, but in severe pain and agony. He was not responding properly. This was at about 6.20 p.m. But same day at about 6.45 p.m. the deceased passed away. 10. Now in the complaint (Ext. PW-11/A), deceased had got recorded that the accused, without any cause assaulted him. He gave kick and fist blows. When cried for help, several persons including Sawhni Devi (PW-7) arrived and saved him from the clutches of the accused. In the instant case, Sawhni Devi (PW-7) and Swarna Devi (PW-8), who are near relatives of the accused, though did try to save him, but when cross examined by the learned Public Prosecutor admitted the accused to have given blows to the deceased. 11. Not only that, we find that independent witness Balraj (PW-9) to have categorically deposed that on 31.1.2010 while he was cutting grass in the fields, he found the accused and the deceased scuffling. This was at about 2 p.m. He (PW.9) raised alarm and loudly cried “Bachao Bachao Maar Diya Maar Diya”. Not only he, Sawhni Devi (PW-7), Swarna Devi (PW-8) and Desh Raj who arrived on the spot tried to save the deceased from the clutches of the accused. The deceased sustained injuries as a result of fist and kick blows given by the accused. Desh Raj took the deceased to his house. Significantly he also states that accused carried the deceased to his house from the place of occurrence. He clarifies the cause of scuffle. Accused proclaimed the deceased to have spoiled his reputation (bad named him). 12. Maan Singh (PW-10) who is the son of the deceased corroborates the version of this witness. 13. At this juncture, it be also observed that both Sawhni Devi (PW-7) and Swarna Devi (PW-8) admit their signatures on their previous statements with which they were confronted, wherein they admit having witnessed the occurrence of the incident. Be that as it may, through the testimonies of Balraj (PW-9), Maan Singh (PW-10) and HHC Shashi Pal (PW-11) it stands established beyond reasonable doubt that the accused had given beatings to the deceased. 14. Undisputedly from the testimony of Dr. Raman Sharma (PW-18) and the port mortem report (Ext. PW-18/B), the factum of death of Amar Singh stands established on record. 14. Undisputedly from the testimony of Dr. Raman Sharma (PW-18) and the port mortem report (Ext. PW-18/B), the factum of death of Amar Singh stands established on record. Identity of the dead body is also not in dispute. The question which needs to be considered is as to whether the accused had any intent of killing the deceased or not. That the accused committed murder, before this Court is not an issue made out by either of the parties. From the evidence on record, to our mind, intent of the accused in causing death remains unproven on record. Of course the fact that his acts were likely to cause death stands proven beyond reasonable doubt. 15. The deceased was an old man of 75 years of age. But it also stands established that he was well built. He was an agriculturist and a strong person. It is not the case of the prosecution that the deceased was assaulted with any weapon. Medical evidence establishes the deceased to have received injuries on the face and arm. It has come in the testimony of Balraj (PW-9) that deceased had fallen on the ground. This explains the injury sustained on his forehead resulting into clotting of blood of left temporal region, as is evident from the post mortem report (Ext. PW- 18/B). It is not the case of the prosecution that with premeditated mind or in a pre-planned manner, carrying a weapon, accused had gone to the fields of the deceased with an intent of causing hurt. It has also come on record through the testimonies of Sawhni Devi (PW-7), Swarna Devi (PW-8) and Balraj (PW-9) that both the deceased and the accused are having common boundaries of their fields. Both were present in their fields when suddenly, scuffle took place between them. The deceased had spoiled the name of the accused. Even in his complaint (Ext. PW-11/A), deceased got recorded that the accused had assaulted him with fist blows as a result of which he fell on the ground. 16. The intent of the accused to inflict injuries can be ascertained from various attending circumstances i.e. (i) weapon of offence used, (ii) sudden provocation; (iii) motive, (iv) age of the assailant and the deceased; (v) nature of injuries etc. 17. 16. The intent of the accused to inflict injuries can be ascertained from various attending circumstances i.e. (i) weapon of offence used, (ii) sudden provocation; (iii) motive, (iv) age of the assailant and the deceased; (v) nature of injuries etc. 17. Reasoning adopted by the trial Court, holding the accused guilty of the offence punishable under Section 304 (Part I) IPC is borne out from paragraph – 25 of the impugned judgment. Having carefully perused the same, we are of the considered view that entire evidence stands misread and misconstrued. Also relevant provisions of the law have not been applied and dealt with correctly. The brain hemorrhage was not as a result of fist blows given by the accused. The deceased had fallen on the ground which may or may not have caused injury on the head, which in any case remains unproven to have been as a result of blows given by the accused. The incident took place at 2.00 p.m. At that time, deceased was conscious. It was the accused himself who carried the deceased to his house. Thereafter Man Singh (PW-10) took him to Police Post Thakurdwara where also the deceased was conscious. Even in the hospital, though he was in great pain and agony but in semi-conscious state of mind. Death took place only at 6.45 p.m. In these circumstances it cannot be said that accused had any intent of causing death. 18. While taking the aforesaid view we have taken into account the ratio of law laid down by the apex Court in Prandas vs. The State, AIR 1954 SC 36 ; K.M. Nanavati vs. State of Maharashtra, AIR 1962 SC 605 ; and State of Andhra Pradesh vs. Rayavarapu Punnayya & another, AIR 1977 SC 45 . 19. In Prandas (supra) a Six Judge Bench of the apex Court has held as under:- “(9). The next question which arises upon the judgment of the High Court is whether the case falls under exception 4 to S. 300, Penal Code. 19. In Prandas (supra) a Six Judge Bench of the apex Court has held as under:- “(9). The next question which arises upon the judgment of the High Court is whether the case falls under exception 4 to S. 300, Penal Code. According to this exception, "culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having acted in a cruel or unusual manner." The Sessions Judge was distinctly of the opinion that the version of the four interested prosecution witnesses which was to the effect that Gayaram and his companions were assaulted one after another, without any provocation, cannot be accepted, but in fact there was a free fight in which both parties assaulted each other. On this aspect of the case, the High Court seems to have at first sight expressed two conflicting opinions in two separate parts of its judgment. In para 26 of the judgment the learned Judges say : "Although the prosecution evidence mainly emanated from interested witnesses, it was supported, as shown, by that of Agardas; and it was also corroborated by Hariram's first information report, Ex. P-1." In the next paragraph, they proceed to say : "Exception 4 to S. 300, Penal Code cannot operate in his (Prandas's) favour, inasmuch as although the culpable homicide can be said to have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, it cannot be said that Prandas had not taken undue advantage or acted in a cruel or unusual manner." These two statements can be reconciled only on the footing that in the earlier paragraph, the learned Judges of the High Court were referring only to that part of the prosecution case which related to the appellant having struck Gayaram on the head, with regard to which alone the evidence of Agardas lends some corroboration to the statements of the remaining prosecution witnesses. We think that this is the only way in which we can explain the conclusion expressed in the statement in para 27, which conclusion seems to be consistent with the probabilities of the case and with the fact that four of the accused persons were also injured and the injuries on the parties were more or less evenly distributed. We think that this is the only way in which we can explain the conclusion expressed in the statement in para 27, which conclusion seems to be consistent with the probabilities of the case and with the fact that four of the accused persons were also injured and the injuries on the parties were more or less evenly distributed. This conclusion does not conflict with the evidence of Agardas, whom both the Courts have believed. (10) The question which now arises is whether the High Court was justified in not giving to the appellant, the benefit of exception 4 to S. 300, Penal Code, in spite of the fact that it found most of the ingredients of that provision to have been established. In the opinion of the High Court, the case did not come within this exception, because "it cannot be said that the appellant had not taken undue advantage or acted in a cruel or unusual manner”. But, beyond this bald statement, there is nothing in the judgment of the High Court to show on what grounds this conclusion is based. According to medical evidence, Prandas had sustained 6 injuries in the course of the occurrence including the fracture of a bone and an injury on the head, and the High Court has not expressly reversed the finding of the Sessions Judge that these injuries were not sustained after Gayaram and his companions had been assaulted. The High Court has also not expressed its disagreement with the finding of the Sessions Judge that Gayaram was not assaulted after he fell on the ground. As will appear from the judgment of the Sessions Judge, several discrepant statements were made by the witnesses as to the number of blows said to have been dealt by Prandas, and Agardas speaks of one blow only. In these circumstances, it seems to us that the view of the High Court that the appellant is not entitled to the benefit of exception 4 to S. 300, Penal Code cannot be sustained and that being so, the conviction under S. 302 cannot stand. In our opinion, the case comes within the second part of S. 304, which deals with the punishment for culpable homicide not amounting to murder when the act is done with the knowledge that it is likely to cause death or cause such bodily injury as is likely to cause death. In our opinion, the case comes within the second part of S. 304, which deals with the punishment for culpable homicide not amounting to murder when the act is done with the knowledge that it is likely to cause death or cause such bodily injury as is likely to cause death. The conviction of the appellant is therefore altered to one under S. 304, and he is sentenced to undergo rigorous imprisonment for five years. His conviction and sentence under S. 323, Penal Code will stand and the sentence passed by the High Court under that Section shall run concurrently with the sentence under S. 304, Penal Code.” 20. We find the accused to be guilty of having committed an offence punishable under the provisions of Section 304 (Part-II) and not Section 304 (Part I) as has been held by the trial Court. This deals with the first two contentions raised by the learned counsel for the appellant. 21. Coming to the third point i.e. the quantum of sentence, we find the accused to have committed the offence without any preparation or intent. Scuffle took place in which accused gave fist and kick blows. No doubt one such blow was given on the chest but however the Doctor found three abrasions on the eye and arm of the deceased. The blood clotting on the temporal region, as we have observed was as a result of the accused falling on the ground. Significantly accused did not run away from the spot. He also did not proclaim or extend threats of killing the deceased. On this count version of not only Balraj (PW- 9) but report lodged by the deceased (Ext.PW-11/A) is evidently clear. The accused carried the deceased from the fields to his house where after to the hospital. Even during trial and incarceration, accused has maintained good conduct. 22. In our opinion, the case comes within the second part of Section 304 IPC, which deals with the punishment for culpable homicide not amounting to murder when the act is done with the knowledge, and not intent, that it is likely to cause death or cause such bodily injury as is likely to cause death. The conviction of the appellant is therefore altered. The conviction of the appellant is therefore altered. Instead of having committed an offence punishable under the provisions of Section 304 (Part I) IPC, appellant is convicted for having committed an offence punishable under the provisions of Section 304 (Part II) IPC and sentenced to undergo simple imprisonment for the period of imprisonment already undergone by him, which as per record available is more than six years, and pay fine of Rs. 10,000/- and in default thereof to undergo simple imprisonment for three months. 23. Appeal stands disposed of, so also pending applications, if any. 24. Copy of judgment be supplied immediately. Registrar (Judicial) to ensure compliance. Records of the Court below be immediately sent back.