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2022 DIGILAW 664 (ALL)

Phool Chand Yadav v. State of U. P.

2022-04-29

ASHWANI KUMAR MISHRA, RAJNISH KUMAR

body2022
JUDGMENT : Rajnish Kumar, J. 1. This appeal has been preferred against the judgment and order dated 12.01.2006 passed by Additional District and Sessions Judge Court No.6, Jaunpur in Sessions Trial No.126 of 2004; State Versus Phool Chandra under Section 302 IPC, Police Station-Sarai Khwaja, District-Jaunpur arising out of Case Crime No.8 of 2004 whereby the appellant Phool Chandra has been convicted and awarded sentence under Section 302 IPC for life imprisonment. 2. The F.I.R. was lodged by the informant Rajesh Kumar Agrahri son of the deceased Ram Asrey on 08.01.2004 at 18:10 alleging therein that while his father was tying his goat in front of Malhani Bazar (Bhadora) Temple, Police Station Sarai Khwaja, District Jaunpur at 01:30 in the day on 08.01.2004, Phool Chandra Yadav, the appellant son of Kewla Prasad suddenly came and started beating his father by a Danda. His father shouted then the informant and Sonu son of Harish Chandra and Gulab Chandra @ Gullu son of Banarsi rushed to the spot and after seeing them the accused ran away. The deceased was taken to the Sadar Hospital, Jaunpur where he died during treatment. In pursuance of the aforesaid F.I.R. the investigation was conducted and the charge sheet was submitted against the appellant under Section 304 I.P.C. 3. Since the charge was under Section 304 I.P.C. the case was committed to the Sessions Court. The charge was framed by the Sessions Judge, Jaunpur on 20.04.2004 against the appellant under Section 302 I.P.C. Charge was read over and explained to the accused who denied the charge and claimed to be tried. 4. In support of the charge seven witnesses were examined namely Rajesh Kumar Agrahri as PW-1, Sonu Gupta as PW-2 as witnesses of fact. Head Constable Adya Prasad Yadav as PW-3, who had written the F.I.R. on the basis of complaint. Dr. P.N. Pandey as PW-4, who had conducted the postmortem. Constable Subhash Chandra Pandey as PW-5, who took the body of the deceased to the postmortem house. Sub-Inspector Amar Singh as PW-6, the investigating officer of the case and Dr. Rajnath Gautam as PW-7 the Medical Officer who had examined the injuries of the deceased. 5. Dr. P.N. Pandey as PW-4, who had conducted the postmortem. Constable Subhash Chandra Pandey as PW-5, who took the body of the deceased to the postmortem house. Sub-Inspector Amar Singh as PW-6, the investigating officer of the case and Dr. Rajnath Gautam as PW-7 the Medical Officer who had examined the injuries of the deceased. 5. After the evidence was adduced by the prosecution, the appellant was examined under Section 313 Cr.P.C. He denied the allegations and stated that the evidence has been given by PW-1 and PW-2 due to enmity and PW-4 to PW-7 are the Government witnesses and they have given forged evidence. Lastly he stated that Ram Asrey was patient of Asthema. He had difficulty in movement. While he was tying the goat near the temple, the goat tried to run, on account of which he fell on well head in which he suffered injuries but he has falsely been implicated. After considering the evidence and material on record, the appellant has been convicted and awarded sentence for life imprisonment under Section 302 I.P.C. 6. We have heard Sri Manu Sharma, learned Amicus Curiae for the appellant and Km. Meena, learned A.G.A. for the State. 7. Learned counsel for the appellant submitted that the appellant has falsely been implicated. The presence of witnesses on the spot and the place of incident is doubtful. The PW-2 stated that he and Rajesh; PW-1 had gone to see fair in Baba at Gauspur and returned home in the evening and then took deceased to hospital. It was informed by the people that the deceased has sustained injuries by lathi danda. He further submitted that injured was admitted in hospital by the villager and not by the son therefore the presence of PW-1 is also doubtful. He further submitted that the place of incident is also doubtful because no blood stain was recovered whereas doctor had stated that deceased died due to excessive bleeding. The doubt has also been raised in regard to place of arrest of the appellant on the ground that PW-1 stated that the arrest was made from sugar cane field whereas PW-2 stated that the appellant was found sitting at his house eating sugar cane. The recovery is also said to be doubtful and it has been argued that there is all possibility that the injury was sustained by the deceased due to accident while tying goat. The recovery is also said to be doubtful and it has been argued that there is all possibility that the injury was sustained by the deceased due to accident while tying goat. He further submitted that motive for offence could not be proved therefore the intention to kill also could not be proved so it can not be said to be a case falling under Section 302 I.P.C. because the F.I.R. was also lodged and charge sheet was submitted under Section 304 I.P.C. and charge under Section 302 I.P.C. could not be proved beyond doubt, therefore the sentence awarded is also excessive. Accordingly he submitted that the appeal is liable to be allowed. 8. Learned A.G.A. vehemently opposed the submissions of learned counsel for the appellant. She had taken us to the evidence on record and contended that though the charge sheet was submitted under Section 304 I.P.C. but the charge was rightly framed under Section 302 I.P.C. and the charge was proved by the eye witnesses beyond doubt. It was a case of broad day light murder which has been proved by eye witnesses therefore even if the motive could not be proved, it is of no consequence. The conviction has rightly been made and adequate sentence has been awarded to the appellant. The appeal is liable to be dismissed. 9. We have considered the submissions of learned counsel for the parties and perused the evidence and material on record. 10. The PW-1 Rajesh Kumar Agrahri lodged the F.I.R. at 18:10 on 08.01.2004 in regard to the aforesaid incident at 01:30 PM on the same day. The F.I.R. was lodged under Section 304 I.P.C. PW-1 had proved the F.I.R. He had stated in his evidence that there are a large number of Yadvas in his village. He is of business community who are in minority therefore the persons of Yadav community keep enmity with them. He had further supported the version of the F.I.R. and stated that after incident he had taken his father to the hospital where he died during treatment. The deceased died during treatment at 05:10 PM and the F.I.R. was lodged at 06:10 PM therefore there was no delay in lodging the F.I.R. because it is a primary duty of the son to first get his father treated in case of such incident. The deceased died during treatment at 05:10 PM and the F.I.R. was lodged at 06:10 PM therefore there was no delay in lodging the F.I.R. because it is a primary duty of the son to first get his father treated in case of such incident. PW-1 had stated that when the appellant had started beating his father by stick, he cried then he alongwith Sonu and Gulab of his village reached on the spot then the appellant ran away. However, on account of beating by lathi (danda) his father suffered serious injuries therefore he was taken to hospital. He also stated in his evidence that his father had suffered injuries on the back side of his head. An exhaustive cross examination was done from PW-1 but nothing could be extracted which may doubt the testimony of PW-1. 11. PW-2 had also stated that the incident is of 1-1/2 PM on 08.01.2004. He alongwith Gulab Chandra @ Gullu and Rajesh Kumar rushed to the spot after hearing the cry of the deceased Ram Asrey then he saw that the appellant was beating Ram Asrey with Lathi & Danda and after sustaining injuries he fell down, but even thereafter he was being beaten. He and others tried to catch the appellant but he ran away. This statement was recorded on 04.01.2005 and after a long cross examination on several dates i.e. 02.02.2005, 22.02.2005 and 27.05.2005 he was got declared hostile by the prosecution as he stated that he and Rajesh had gone to see the fair in Baba of Ghauspur. They returned in the evening and then took the deceased to hospital and the people had informed that the injuries were suffered from Lathi & Danda. Thereafter in cross-examination and suggestion of cross defence he stated that it is wrong to say that he has not seen the incident from his eyes. Therefore even though he was declared hostile after cross examination on several dates but lastly he supported his evidence by the suggestion therefore his earlier statement can not be ignored in which he had proved the incident. It is settled proposition of law that even after a witness has been declared hostile, the evidence which inspires confidence, can be considered and would be relevant. It is settled proposition of law that even after a witness has been declared hostile, the evidence which inspires confidence, can be considered and would be relevant. Therefore this Court is of the view that it is a case in which there are two eye witnesses of the incident who have proved the incident and nothing could come out in the cross-examination which may raise any doubt about their testony about the incident. Therefore the contention of learned counsel for the appellant that the presence of witnesses at the time of incident is doubtful, is misconceived and not tenable and liable to be rejected. As such the incident has been proved by two eye witnesses. 12. PW-3 Head Constable 98 Aadya Prasad Yadav has proved the lodging of the F.I.R. and G.D. entries. PW-4 Dr. P.N. Pandey, who had conducted the postmortem, has proved the postmortem report in which one injury was found. He stated that in his opinion the cause of death was excessive bleeding due to anti mortem injury. PW-5 has stated in his evidence that he had sealed the dead body and produced for postmortem before the doctor. The inquest report was prepared by the S.I. Ramesh Chandra Mishra on which he has also signed. PW-6 S.I. Amar Singh has stated that while he was posted as Sub-Inspector, Police Station-Sarai Khwaja, the F.I.R. vide Case Crime No.804 under Section 304 I.P.C. was lodged on a written complaint of Rajesh Agrahri against the appellant Phool Chandra. The investigation was assigned to him. He after recording the statements and inspection of the site and preparation of the site plan which is in his writing and under his signature had submitted the charge sheet under Section 304. He also stated that he had recovered the Lathi and prepared the form which is signed by the witnesses. PW-7 Dr. Rajnath Gautam, Anaesthesia Department, Moti Lal Nehru Medical College, Allahabad had stated that while he was posted as Emergency Medical Officer, District Hospital Jaunpur on 08.01.2004 had inspected the injuries of the deceased Ram Asrey at 02:53 PM in which he had suffered four injuries. He had also stated that the death could have been caused on account of injuries no.1 and 2. He proved the injury report. 13. He had also stated that the death could have been caused on account of injuries no.1 and 2. He proved the injury report. 13. Learned counsel for the appellant had submitted that since the presence of witnesses on the spot is doubtful and opinion of the doctor that if the deceased would have been old he could die on account of injuries sustained on the head by falling and the statement under Section 313 Cr.P.C. there is all possibility of injuries to have been caused due to accident while tying the goat and the appellant has been falsely implicated in the case. As discussed above, since the presence of the witnesses can not be doubted at the time of occurrence and merely because an opinion has been given by the doctor and the appellant has stated in his statement under Section 313 I.P.C. it can not be said that injuries have been caused due to falling and due to accident while tying goat because the occurrence of incident has been proved by the two eye witnesses PW-1 and PW-2. The prosecution witnesses, who are the eye witnesses, have proved that the deceased had suffered injuries by beating of the appellant and even otherwise the appellant or any body else had not made any complaint regarding injuries to have been suffered by the deceased on account of any accident while tying the goat. 14. The deceased, after the incident, was taken to the hospital by PW-1 Rajesh Kumar Agrahri, PW-2 Sonu Gupta and Gulab. He was examined by the Emergency Medical Officer in District Hospital Jaunpur. Four injuries were recorded by the Medical Officer. (i) Lacerated wound 4cm X 1cm deep on left side skull above 5cm from the left ear pinna, bleeding. (ii) Lacerated wound 3cm X ½ cm bone deep on back of skull 8cm post to right ear pinna (iii) Abression 2cmX1cm above the right year and (iv) abbression 3cmX2cm above the left ear pinna. The injuries (i) and (ii) were kept under observation and X-Ray was advised. It was opined that the injuries were caused by hard and blunt object. The doubt has also been raised in regard to presence of PW-1 because in the injury report the deceased has been shown brought by Gulab. But it can not be accepted in view of evidence of PW-1 PW-2 and PW-7. It was opined that the injuries were caused by hard and blunt object. The doubt has also been raised in regard to presence of PW-1 because in the injury report the deceased has been shown brought by Gulab. But it can not be accepted in view of evidence of PW-1 PW-2 and PW-7. No complaint was also made by any body in this regard. The appellant could also have produced Gulab in defence to prove it, but it was not done. The evidence on record is sufficient to reject the contention of learned counsel for the appellant. 15. The deceased died during treatment at 05:10 PM thereafter the F.I.R. was lodged at 06:10 PM. The postmortem of deceased was conducted on 09.01.2004. In the postmortem lacerated wound with blue mark 8cmX4cm X-skull deep on the right side of head 8cm above right ear pinna under lying skull bone fractured and bleeding was found. Blood was also found in skull. Therefore, though there was difference in the medical examination and the postmortem in regard to the injuries but it is not disputed that anti mortem injury was found on the head of the deceased and the cause of death was anti mortem injuries on the vital part. The ocular evidence also shown that the blow of lathi was on head. The argument was raised that the informant had got the injuries made after making payment to the Emergency Medical Officer. However the doctor has stated in his statement on oath that he has received the prescribed fees. 16. The trial court considered the issue and recorded a finding that the doctor conducting the postmortem with the help of sweeper may have left to see the same. This Court while examining the medical report and the postmortem report found that the lacerated wounds mentioned in the injury report are of 4cmX1cm and 3cmX ½ cm on the head and in the posmortem the injury recorded is 8cmX4cm X-skull deep on the right side of head 8 cm above the right ear pinna and underlying skull bone was fractured. Therefore there is a possibility that the injury may have been seen as one in the postmortem due to bleeding and proximity in the injuries. Therefore there is a possibility that the injury may have been seen as one in the postmortem due to bleeding and proximity in the injuries. However this court is of the view that since some doubt has been raised in regard to the injury report and no cogent evidence could be adduced to doubt the post mortem report the post mortem report would prevail. However, both the reports have been proved by the respective doctors and no cross examination was made on it, which may doubt the reports. Therefore non collection of blood from the spot also can not be fatal because it may be a fault on the part of investigating officer. Even otherwise the medical evidence is only corroborative and ocular evidence cannot be discarded on any discrepancy of the medical evidence. The Hon’ble Supreme Court in the case of Solanki Chimanbhai Ukabhai Versus State of Gujarat; (1983) 2 SCC 174 has considered the issue and held as under in paragraph 13:- “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” 17. Doubt is also raised by the learned counsel for the appellant regarding the recovery on the ground that Lathi was not produced before the Court. But it can not be a ground for doubting the recovery because the Lathi was recovered, the description of which was made in the recovery memo dated 08.01.2004. Even otherwise the witnesses have proved that the appellant had beaten the deceased by the Lathi and medical and postmortem also indicate that the injuries were caused by the hard and blunt object. 18. The issue raised regarding place of arrest is also not tenable because the place of arrest is not material in view of proof of case beyond doubt. 19. 18. The issue raised regarding place of arrest is also not tenable because the place of arrest is not material in view of proof of case beyond doubt. 19. This is a case in which though any enmity between the deceased and the appellant could not be proved but it is a case of an incident occurred in broad day light in which the deceased had suffered serious injury on account of which he succumbed to death. Since the motive could not be proved therefore it may be a case in which the intention to kill may not be there. If the motive and intention to kill is not proved then it is required to be considered as to whether the offence would fall under the category of murder or not otherwise it may be a case of culpable homicide not amounting to murder. Sections 299, 300 and 304 I.P.C. relevant for the purpose are extracted below:- “299. Culpable homicide.-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.-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 taken undue advantage or acted in a cruel or unusual manner. Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 304. Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder, shall be punished with 1 [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 20. In view of above to bring a case under Section 300 firstly it must be established that a bodily injury is present; secondly the nature of the injury must be proved and thirdly it must be proved that there was an intention to inflict that particular bodily injury and it was not accidental or unintentional or that some other kind of injury was intended and fourthly it must be proved that injury inflicted on the deceased is sufficient to cause death in the ordinary course of nature. If all these eliments are established by the prosecution the offence would be murder under Section 300 I.P.C. 21. The Hon'ble Supreme Court considered the issue in the case of Virsa Singh Vs. The State of Punjab; Manu/SC/0041/1958 ( AIR 1958 SC 465 ) and held as under in paragraph 22 to 30:- 22. First, it must establish, quite objectively, that a bodily injury is present; 23. Secondly, the nature of the injury must be proved; These are purely objective investigations. 24. 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. 25. Once these three elements are proved to be present, the enquiry proceeds further and, 26. 24. 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. 25. Once these three elements are proved to be present, the enquiry proceeds further and, 26. 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. 27. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do 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. 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. 28. We were referred to a decision of Lord Goddard in R v. Steane (1) where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that s. 300 3rdly requires, and how is it to be proved ? 29. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that s. 300 3rdly requires, and how is it to be proved ? 29. The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: "if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted." 30. We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment: "No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged." 22. The Hon'ble Supreme Court in the case of Pulicherla Nagarjun Vs. State of Andhra Pradesh; (2006) 11 SCC 444 observed as to what is to be considered for deciding a case as to whether it falls under Section 302 or 304 Part-I or 304 Part-II and also the intention to cause death can be gathered from a combination of circumstances. The relevant paragraph-18 is extracted below:- “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. 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. 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 pre- meditation; (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. Be that as it may.” 23. The Hon'ble Supreme Court in the case of Suresh Chandra Bahri Vs. State of Bihar and Others; MANU/SC/0500/1994 has held that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. Be that as it may.” 23. The Hon'ble Supreme Court in the case of Suresh Chandra Bahri Vs. State of Bihar and Others; MANU/SC/0500/1994 has held that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. However it further noticed that in a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. Therefore motive may only be a relevant factor to form an opinion as to whether in a given circumstances there was an intention to kill on account of which the case may fall under Section 302. 24. In the present case the injuries were inflicted by a blow of Lathi which can not be said to be a deadly weapon. However if the injuries inflicted on the vital part it may cause death. Therefore in such circumstance if the motive and intention to kill is not proved the case may fall under Section 304-I or 304-II. The Hon'ble Supreme Court in the case of Joseph Vs. State of Kerala; AIR 1994 SC 34 has accepted the contention of the appellant that the Lathi used as a weapon is not a deadly weapon. In the said case the occurrence was a result of trivial incident and the accused dealt two blows on the head with a Lathi. Therefore it was held that it can not be said that he intended to cause injury which is sufficient, at the most it can be said that by inflicting such injuries he has knowledge that he was likely to cause a death and in such circumstance the offence committed by him will be culpable homicide not amounting to murder. 25. Therefore it was held that it can not be said that he intended to cause injury which is sufficient, at the most it can be said that by inflicting such injuries he has knowledge that he was likely to cause a death and in such circumstance the offence committed by him will be culpable homicide not amounting to murder. 25. In the present case though four injuries have been referred in the medical examination held after the incident but in the postmortem conducted on the body of the deceased only one injury was found on the back of head of the deceased i.e. on the vital part. The deceased had died on account of the said anti mortem injury. Therefore even if it is a case of single blow of Lathi and the appellant knowingly made a single blow that it was likely to cause death it would be a culpable homicide not amounting to murder which will fall under Section 304 Part-II I.P.C. because the intention to cause death could not be proved. 26. The Hon'ble Supreme Court in the case of Gurmukh Singh Vs. State of Haryana; (2009) 15 SC 635 held that the appellant therein on the spur of the moment inflicted a single lathi blow and the other accused have not indulged in any overt act. There was no intention or premeditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature. Similar is the position in the present case and if the appellant had intention to kill he must have made repeated blows on the vital part. The age of the appellant at the time of incident was about 22 years of age as recorded in the arrest memo. 27. The Hon'ble Supreme Court in the case of Gurmail Singh and Others Vs. State of Punjab; (1982) 3 SCC 185 in which the accused no.1 was aged about 19 years shown in the judgment held that having regard to all the circumstances and the facts found by the High Court, it may be said that accused no.1 is shown to have committed an offence under Section 304 Part-II I.P.C. 28. State of Punjab; (1982) 3 SCC 185 in which the accused no.1 was aged about 19 years shown in the judgment held that having regard to all the circumstances and the facts found by the High Court, it may be said that accused no.1 is shown to have committed an offence under Section 304 Part-II I.P.C. 28. In view of above and considering the over all facts and circumstances of the case it is apparent that the appellant who was aged about 22 years of age at the time of alleged incident made one or two blow of Lathi on the deceased aged about 60 years. Though it was on a vital part but it was without intention to kill because it could not be proved. Though it may be with the knowledge that it is likely to cause death. Therefore this Court is of the view that the offence would fall under Section 304 Part-II I.P.C. The learned trial court also has awarded the punishment of life imprisonment only under Section 302 I.P.C. whereas the punishment for murder provided under Section 302 is with death or imprisonment for life and shall also be liable to fine therefore only life imprisonment could not have been awarded under Section 302 IPC. In the present case the F.I.R. was lodged under Section 304 and the charge sheet was also filed under Section 304 but since charge was framed under Section 302 therefore the same has been held to be proved and the punishment has been awarded under Section 302 which is not in accordance with the provision. Therefore, it appears that the court was intending to award punishment under Section 304 but awarded the punishment under Section 302 I.P.C. Accordingly, this Court is of the view that the judgment and order passed by the learned trial court is liable to be modified and punishment awarded to the appellant under Section 302 IPC is liable to be converted under Section 304 Part-II. 29. The appeal is, accordingly, partly allowed. The judgment and order dated 12.01.2006 awarding life imprisonment under Section 302 IPC is modified and the appellant is sentenced with the imprisonment of 10 years and a fine of Rs.20,000/- is imposed under Section 304 Part-II because the deceased was aged about 60 years when he was done to death by the appellant. The appeal is, accordingly, partly allowed. The judgment and order dated 12.01.2006 awarding life imprisonment under Section 302 IPC is modified and the appellant is sentenced with the imprisonment of 10 years and a fine of Rs.20,000/- is imposed under Section 304 Part-II because the deceased was aged about 60 years when he was done to death by the appellant. In case the fine is not deposited the appellant will have to serve six moths more in jail. On completion of the aforesaid punishment and in case the appellant is not wanted in any case he shall be released forthwith. 30. Before parting we record appreciation for the assistance rendered by Shri Manu Sharma, Amicus Curiae and quantify the fees as Rs.20,000/- which shall be paid to him forthwith. 31. The copy of this order shall be communicated to the Jail Superintendent of concerned Jail forthwith for communication to the appellant and necessary compliance.