JUDGMENT : Ananda Sen, J. 1. This criminal appeal is directed against the Judgment of Conviction dated 19.03.1997 passed in Sessions Trial No.714 of 1991/20 of 1992 arising out of Bhandra Police Station Case No.19 of 1990 (G.R. No.190 of 1990), whereby the learned Additional Judicial Commissioner, Lohardaga found the sole appellant guilty for committing an offence punishable under Section 302 of the Indian Penal Code and convicted him for the said offence and by order dated 20.03.1997, sentenced him to undergo rigorous imprisonment for life. 2. Learned counsel appearing on behalf of the appellant submits that on the facts of the case and the evidence led by the prosecution witnesses, the case does not come within the purview of Section 302 of the Indian Penal Code. The basic ingredients of Section 300 of the Indian Penal Code, i.e., intention of causing death is absent in the instant case. In absence of any intention, the conviction of the appellant under Section 302 of the Indian Penal Code is bad and is liable to be set aside. He argues that admittedly, there was land dispute between the appellant and the deceased, which is apparent from the evidence and in fact, it is the deceased, who encroached and tried to grab the land of the appellant, resulting in hot exchange of words, followed by a sudden blow on the head of the deceased by lathi (stick). The case will also not come within the purview of Section 299 of the Indian Penal Code, as there is nothing in the evidence to suggest that the death was caused with an act with an intention of causing death nor the prosecution could prove that the appellant had knowledge that the act and the injury inflicted by him would cause death. Learned counsel for the appellant further submits that the Investigating Officer of this case was not examined in this case, which caused great prejudice to the appellant. He lastly submits that in view of the aforesaid position, the conviction of the appellant is bad and the same should be set aside. Learned counsel for the appellant further submits that the Investigating Officer of this case was not examined in this case, which caused great prejudice to the appellant. He lastly submits that in view of the aforesaid position, the conviction of the appellant is bad and the same should be set aside. Learned counsel for the appellant also cited a judgment of this Court in the case of Naresh Singh @ Ram Naresh Singh & another versus State of Bihar reported in 1996(1) East CrC 198(RB)(Pat) and stated that the facts of the said case are similar to that of the case of the prosecution involved in this appeal. He submits that as in the facts involved in the said case, the appellant in this case also had no intention of causing murder of the deceased. 3. Learned A.P.P. appearing on behalf of the State submits, the fact that the appellant had given a lathi blow on the head of the deceased, is proved beyond all reasonable doubt. Mens rea is also present, as admittedly, there was dispute between the parties involving land. The weapon used is a lathi, which can be used as a weapon of offence. Learned A.P.P. submits that non-examination of the Investigating Officer is of no relevance as the appellant has failed to prove that he has suffered any prejudice due to non-examination of the Investigating Officer. He contends that the Postmortem Report corroborates the injury and the prosecution version, thus, the appellant has been rightly convicted. 4. We have heard the learned counsel for the parties and have gone through the Lower Court Records. 5. Prosecution case is based on a Fardbeyan of Maheshwar Singh (P.W.4). On the basis of the said Fardbeyan, Bhandra Police Station Case No.19 of 1990 was registered on 15.05.1990, initially under Section 307 of the Indian Penal Code, which was later on converted to one under Section 302 of the Indian Penal Code on 17.05.1990. After investigation, the police submitted chargesheet against the appellant under Section 302 of the Indian Penal Code and the sole appellant was put on trial. Charge was framed against the appellant for committing offence punishable under Section 302 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. The appellant was put on trial. 6. To prove its case, prosecution has examined 6 (six) witnesses. (A) P.W.1 is Dr. Charge was framed against the appellant for committing offence punishable under Section 302 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. The appellant was put on trial. 6. To prove its case, prosecution has examined 6 (six) witnesses. (A) P.W.1 is Dr. Sunil Minz, who conducted the postmortem of the dead body of Ganesh Singh, i.e., the deceased. He found the following external injuries on the person of the deceased:- (i) Stitched wound about 3 cm over right from to temporal bone. (ii) Stitched wound about 5 cm on outer lateral part of occipital parietal bone. (iii) Abrasion over right elbow joint. (iv) Abrasion over left leg about 2” above left ankle joint. He stated that the injuries were caused by hard and blunt substance, may be, by lathi and death was caused due to shock and hemorrhage caused by the above injury. In cross examination, this witness has stated that the injuries will not cause instantaneous death. (B) P.W.2 is Rajeshwari Devi. She is the wife of the deceased. (i) She stated that the occurrence took place 3 ¼ years ago in the evening. After grazing buffalo, the deceased returned to his house, when the appellant and the deceased started to quarrel. Appellant and the deceased are brothers. The deceased directed this witness to inform the villagers. On the said command, this witness called Maheshwar Singh, Tiwari and Inder Singh. Thereafter, this appellant with the help of a lathi assaulted the deceased on his head, as a result of which he fell down. When this witness went to save her husband, the deceased also gave a blow upon her. Seeing this, Maheshwar Singh intercepted and forbade this appellant. With the help of the villagers, the injured husband of the witness was taken to the Bhandara Police Station, from there to Bhandara Hospital and subsequently to the Lohardaga Hospital where during treatment, the deceased died at night. (ii) She stated that the appellant had a piece of land, which was uncultivable and the deceased with the consent of this appellant had laid a shed for keeping buffalos. The said shed was cause of discord and dispute between them. She admitted that in the afternoon also this appellant quarreled with her and thereafter in the evening the incidence took place. The said shed was cause of discord and dispute between them. She admitted that in the afternoon also this appellant quarreled with her and thereafter in the evening the incidence took place. In cross examined, she admitted that lands were partitioned amongst the brothers, i.e., the deceased and the appellant and after the partition the deceased was residing at Aurangabad. He only reached the village 15 days prior to the occurrence. She admitted that they laid a shed on the land of the deceased, but, stated that the said shed was laid with the consent of the appellant. She stated that she told the police that they had laid the shed on the land of the deceased and constructed a house. She also stated in cross examination that when the appellant returned from Aurangabad and found that this witness and the deceased had constructed a hutment, the appellant uprooted the same. (iii) She stated that remains of the said hutment, i.e., bamboos, khapra (tiles) and some logs are still lying there. She stated that due to the assault, her husband fell down and became unconscious. Her husband, prior to being hit, raised alarm, when Kedarnath Tiwari came. In paragraph 13, she stated that the appellant gave one lathi blow on the deceased as a result of which he fell down. She stated that the lathi (log) was of eucalyptus. She stated that she had stated before the police that when her husband was crying for help, Maheshwar Singh, who was present came and tried to save her husband. (C) P.W.3 is one Inder Singh. He stated that the occurrence had taken place four years ago. Quarrel was going on between the deceased and the appellant and the appellant had struck the deceased with a lathi on his head. Ranjit Singh and Muni Shukla also came there. Bishun, after the assault fled. This witness along with others took the deceased in an injured state to Bhandra Police Station and thereafter to Lohardaga Hospital, where the deceased expired. In cross examination, this witness admitted that there is a land dispute between the deceased and the appellant. He denied that the deceased had laid a shed upon the land of this appellant. He stated that the appellant indiscriminately gave lathi blow to the deceased. (D) P.W.4 is Maheshwar Singh. He is also an eye witness. In cross examination, this witness admitted that there is a land dispute between the deceased and the appellant. He denied that the deceased had laid a shed upon the land of this appellant. He stated that the appellant indiscriminately gave lathi blow to the deceased. (D) P.W.4 is Maheshwar Singh. He is also an eye witness. There was heated exchange between the deceased and the appellant and the appellant gave one lathi blow on the head of the deceased. Ganesh Singh (deceased) fell down and became unconscious. He stated that the wife of Ganesh Singh was present there and so was Kedarnath Tiwari and Inder Singh. He further narrated that he informed the other villagers when Dinesh Singh and Ranjit Roy came. This appellant thereafter had fled from the place. Police had taken his statement and he identified his statement on the fardbeyan, which was marked as Exhibit 2. He stated that in the morning he got information that the deceased died in the hospital. In cross examination, he stated that the land of the appellant and the deceased was partitioned 2-3 years back. The deceased used to live elsewhere and seldom used to come to the village. He admitted that there was land dispute between them. He admitted that he had seen the entire occurrence. In paragraph 3 he admitted that only one blow was given on the head. (E) P.W.5 is Kedarnath Tiwari. He stated that on hearing hue and cry, he reached the place of occurrence and saw the deceased in an injured condition. There was injury on his head. He admitted that he had not seen any one assaulting the deceased. He stated that the deceased was taken to hospital where he died. He was declared hostile. In cross examination, he stated that the deceased and the appellant were brothers. (F) P.W.6 is a formal witness, who stated that the First Information Report was written by Yaduvansh Kumar Singh, the then Officer-in-Charge, Bhandara Police Station. He identified his handwriting, which is Exhibit 3. 7. There were three documentary evidence. Exhibit 1 is the Postmortem Report. Exhibit 2 is the signature and Exhibit 3 is the First Information Report. 8. (F) P.W.6 is a formal witness, who stated that the First Information Report was written by Yaduvansh Kumar Singh, the then Officer-in-Charge, Bhandara Police Station. He identified his handwriting, which is Exhibit 3. 7. There were three documentary evidence. Exhibit 1 is the Postmortem Report. Exhibit 2 is the signature and Exhibit 3 is the First Information Report. 8. The defence also produce a certified copy of judgment of Sessions Trial No.67 of 1988, which is Exhibit ‘A’ to prove that one of the witnesses, i.e., P.W.3, Inder Singh was in inimical terms with this appellant as the said Inder Singh had lodged Bhandara Police Station Case No.107 of 1987 (Sessions Trial No.67 of 1988) against the appellant under Sections 366, 367 of the Indian Penal Code, but this appellant was acquitted after proper trial. 9. After closure of the evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure and statement of the appellant was recorded. The Trial Court, thereafter, upon hearing the arguments, passed the impugned judgment, convicting the appellant for committing an offence punishable under Section 302 of the Indian Penal Code and by order dated 20.03.1997, sentenced him to undergo rigorous imprisonment for life. 10. Now, the question, which falls before this Court is whether the prosecution has been able to prove the guilt of the appellant for committing offence punishable under Section 302 of the Indian Penal Code beyond all reasonable doubt or not. 11. The charge was framed against the appellant under Section 302 of the Indian Penal Code for committing murder. Section 302 of the Indian Penal Code provides for punishment for committing the offence of murder. Section 300 of the Indian Penal Code defines ‘murder’. Section 300 of the Indian Penal Code reads as under: - “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 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.” 12. From the definition, it is clear that the act by which the death is caused has to be done with an intention of causing death or the bodily injury is given with a knowledge that it is likely to cause death. Further, the Section provides that if the injury is done with an intention of causing bodily injury to any person and bodily injury intended to be inflicted is sufficient in the ordinary course of nature, to cause death or the person knows that the act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, then only the case will fall under Section 300 of the Indian Penal Code. 13. In the instant case, from the evidence, which has been led, it is clear that there is nothing to suggest that there was any intention on the part of the appellant to cause death nor there is any evidence to suggest that the appellant knew that his act of assault is likely to cause death. Further, when we go through the Postmortem Report, we find that the doctor has though stated that the death was due to shock and hemorrhage caused by the injury, but has not stated that such injury was sufficient in ordinary course to cause death, neither there is evidence to suggest that in all probability due to bodily injury, death is likely to be caused and the aforesaid fact was known to the appellant. 14. 14. From the Postmortem Report, it is clear that though there are four external injuries, yet two are abrasion on the elbow and knee, third one is stitched wound about 5 cm on outer lateral part of occipital parietal bone and the main injury is wound about 3 cm right from the temporal bone. This suggests that the blow, which was given on the head of the deceased was one and there was no multiple blows. In fact P.W.4 stated that one blow was given. P.W.3 also stated that the appellant had struck the deceased with lathi and after assault, he fled. Thus, it is evident that only one blow was given on the head of the deceased. These facts clearly suggest the lack of intention of committing murder of the deceased, nor the appellant had any knowledge that his act would result in death of the deceased in normal course. 15. Further, from the evidence, we find that there was altercation between the appellant and the deceased and it is admitted case, which bears out from the prosecution evidence that it is the deceased, who had constructed a hutment over the land of this appellant, taking advantage of the fact that the appellant was residing outside. P.W.2, who is none other, but the wife of the deceased, admitted the aforesaid fact in her evidence and also admitted that they had raised a shed over the land belonging to the deceased. Seeing his land being taken over by the deceased, the appellant protested, which resulted in the entire incidence and during altercation, the appellant gave one blow with lathi on the head of the deceased. This fact also clearly suggests that there was lack of intention on the part of the appellant. When there was lack of intention and knowledge, appellant could not have been convicted for committing an offence punishable under Section 302 of the Indian Penal Code. Thus, conviction of the appellant under Section 302 of the Indian Penal Code is bad. 16. From the evidence led, it is clear that the appellant was taken to a local hospital at Bhandra, where he was treated and thereafter he was taken to Sadar Hospital, Lohardaga. It was also stated by the witnesses that there was altercation between the appellant and the deceased and reason for such altercation was encroachment and capturing of land of the appellant by the deceased. It was also stated by the witnesses that there was altercation between the appellant and the deceased and reason for such altercation was encroachment and capturing of land of the appellant by the deceased. It has also come in evidence that while this appellant was out of his village and was residing in Aurangabad, this encroachment and construction of hutment over the land of the appellant had taken place at the instance of the deceased. P.W.2, who is the wife of the deceased, has admitted that they had raised the shed on the land of the appellant. She also admitted that in the afternoon there was some quarrel between the appellant and the P.W.2. In the evening there was also quarrel between the appellant and the deceased. The genesis of the quarrel was encroachment of land by the deceased. During the course of quarrel, suddenly this assault was made. This clearly suggests that there was provocation on the part of the deceased and the provocation was grave and sudden, as the land which was partitioned between the appellant and the deceased and which fell in the share of the appellant was tried to be taken away by the deceased by putting up shed. 17. Further, Section 299 of the Indian Penal Code defines ‘Culpable Homicide’. As per the said definition also, there has to be an element of intention of causing death or there has to be an intention of causing bodily injury as is likely to cause death or with a knowledge that he is likely, by such act, to cause death. 18. In this case, the evidence, as noticed in the earlier paragraphs, this preconditions are missing as there is nothing to suggest that there was any intention of causing death. As observed earlier, it is a case of great provocation, because of which the incidence had taken place. In absence of these ingredients, the case also cannot come within the purview of ‘Culpable Homicide’. 19. Further, from the evidence led by the prosecution, it is clear that the deceased was taken to the Police Station after the said assault from where he was taken to the Local Hospital at Bhandra and subsequently he was taken to Sadar Hospital, Lohardaga. 20. 19. Further, from the evidence led by the prosecution, it is clear that the deceased was taken to the Police Station after the said assault from where he was taken to the Local Hospital at Bhandra and subsequently he was taken to Sadar Hospital, Lohardaga. 20. In the judgment cited by the learned counsel for the appellant in the case of Naresh Singh (supra), we find that the facts of the case cited by the counsel is some what similar to the facts of this case. In the case cited before us, parties were on inimical terms and one lathi blow was given as there was land dispute between the parties and the death was caused due to such injury. The Division Bench of this Court held that no case under Section 300 of the Indian Penal Code can be made out to attract punishment under Section 302 of the Indian Penal Code as only one lathi blow was given and there was nothing to suggest that there was intention to commit murder. The Division Bench of this Court held that the case would fall under Section 325 of the Indian Penal Code. 21. Learned A.P.P., after going through the aforesaid judgment, also admits that the facts of this case are similar to that of the case cited before us. 22. Considering what has been held above, we find that the conviction of the appellant for an offence punishable under Section 302 of the Indian Penal Code is bad and is liable to be set aside. The impugned Judgment of Conviction dated 19.03.1997 passed in Sessions Trial No.714 of 1991 / 20 of 1992 arising out of Bhandra Police Station Case No.19 of 1990 (G.R. No.190 of 1990), whereby the appellant has been convicted for committing an offence punishable under Section 302 of the Indian Penal Code and the order dated 20.03.1997, by which appellant has been sentenced to undergo rigorous imprisonment for life are hereby set aside. Instead the appellant is held guilty and is convicted for offence under Section 325 of the Indian Penal Code and the order of sentence is also reduced to the period already undergone by the appellant in custody. This appeal is, accordingly, allowed. Since the appellant is on bail, he be set at liberty by cancelling his bail bond executed before the learned Trial Judge. 23. This appeal is, accordingly, allowed. Since the appellant is on bail, he be set at liberty by cancelling his bail bond executed before the learned Trial Judge. 23. Pending interlocutory applications, if any, stand disposed of. 24. Urgent certified copies of this judgment shall be issued as per Rules. 25. Records of the Trial Court be transmitted to it, forthwith, along with a copy of this judgment.