Kheti Ram and anr. Vs. State of H.P. - Court Judgment

SooperKanoon Citationsooperkanoon.com/890228
SubjectCriminal
CourtHimachal Pradesh High Court
Decided OnNov-20-2001
Case NumberCriminal Appeal No. 125 of 2000
Judge Lokeshwar Singh Panta and; Arun Kumar Goel, JJ.
Reported in2003CriLJ86
ActsIndian Penal Code (IPC), 1860 - Sections 34, 300, 302, 304 and 323
AppellantKheti Ram and anr.
RespondentState of H.P.
Appellant Advocate Anup Chitkara, Adv.
Respondent Advocate J.K. Verma, Asstt. Adv. General
DispositionAppeal dismissed
Cases ReferredIn Mahesh Balmiki v. State of M. P.
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lokeshwar singh panta, j. 1. this appeal is directed against the judgment dated 21-2-2000 of sessions judge, chamba in session trial no. 15 of 1999 convicting the appellants-accused under section 302 of the indian penal code and sentencing them to undergo imprisonment for life and to pay fine of rs. 5000/- each. in default of payment of fine to undergo simple imprisonment for two months each for the murder of one chaman lal. the appellants were also convicted under section 323 read with section 31 of the indian penal code for inflicting simple injury to ram singh and sentenced to suffer imprisonment for three months each and to pay fine of rs. 1000/- in default of payment of fine they shall undergo simple imprisonment for one' month cash.2. in order to appreciate the controversy we are.....
Judgment:

Lokeshwar Singh Panta, J.

1. This appeal is directed against the judgment dated 21-2-2000 of Sessions Judge, Chamba in Session trial No. 15 of 1999 convicting the appellants-accused under Section 302 of the Indian Penal Code and sentencing them to undergo imprisonment for life and to pay fine of Rs. 5000/- each. In default of payment of fine to undergo simple imprisonment for two months each for the murder of one Chaman Lal. The appellants were also convicted under Section 323 read with Section 31 of the Indian Penal Code for inflicting simple injury to Ram Singh and sentenced to suffer imprisonment for three months each and to pay fine of Rs. 1000/- in default of payment of fine they shall undergo simple imprisonment for one' month cash.

2. In order to appreciate the controversy we are herewith giving essential facts.

3. As per the prosecution story, on 13-1-1999 at about 6 or 6-30 p.m. PW-1 Ram Singh along with his brother Chaman Lal were going to their maternal grand parents' house in village Siunra Pargana Himgiri, Tehsil Churah, District Chamba. When they covered hardly about 2 kilometres distance from their village and reached at village Saryali Cheel, they met both the accussed who are real brothers on the way who were coming from down side along with PW-2 Surinder Singh and PW-6 Kumari Paro sister-in-law (wife's sister of PW-1). PW. 6 was caught hold from her arm by Chet Ram accused and she was weeping. P.W. 1 asked the accused as to why they were taking PW-8 forcibly, then Chet Ram accused replied that Kumari Paro was engaged to him by her father and they were taking her to their house. On seeing PW-1 and his brother Chaman Lal PW-6 tried to get herself released from the clutches of Chest Ram accused, he started beating her. When PW-1 and his brother Chaman Lal tried to rescue PW-6, both the accused immediately attacked Chaman Lal while PW-2 took PW-1 to other side and requested him not to quarrel. When PW. 1 tried to get himself released from PW-2, he threw PW-1 on the ground and did not allow him to rescue his brother. It was the prosecution case that Kheti Ram accused struck an empty glass bottle on the head of Chaman Lal and as a consequence of blood injury, Chaman Lal fell down on the ground. Thereafter both the accused lifted Chaman Lal and threw him from the height of about 70 ft. down the 'dhank'. Then both the accused came near PW. Ram Singh and tried to lift him too also in order to throw him down below the same 'Dhank' but by chance Ram Singh caught hold of the caller of the shirt of PW Surinder Singh from neck with his right hand and thus saved himself. He requested both the accused not to kill him. Then they directed PW Ram Singh to go to home quietly. He obeyed their command, but accused Kheti, Ram was holding his right hand and after walking a, few steps PW Ram Singh got his hand freed and ran away. At that time he notice Chet Ram accused lifting a stone from the road and striking it on the back side of his head which caused blood injuries to him. PW Ram Singh went towards village Sheru and cried for help One Teju. PW-3 Karam Chand alias Karmu and PW-5 Glano met him to whom he narrated the entire incident. All these three persons accompanied PW Ram Singh to the place of occurrence to locate the whereabouts of Chaman Lal but they could not trace out him due to darkness. Thereafter, PW Ram Singh went to the house of his maternal brother PW 4 Narsingh and narrated the entire incident to him as well. PW Ram Singh against went to the place of occurrence to look the dead body of Chaman Lal but in the darkness, they failed to locate his body.

4. On the following day i.e. 14-1-1999 PW Ram Singh went to Police Station. Tissa and lodged First Information Report Ext. PA which was recorded by Inspector/SHO PW-11 Shri Kishori Lal. At 3.50 p.m. he visited the place of occurrence on the same day but could not carry out any proceedings since it was night time. On the next day i.e. 15-1-1999 he conducted inquest proceeding and prepared inquest report Ext. PK in the presence of PW-4 and one Lal Chand. He took into possession blood stained earth and leaves from the place where the dead body of deceased Chaman Lal was lying in the presence of PW Narsingh and Lal Chand. He also took into possession blood stained small stone and earth from the place where deceased Chaman Lal had fallen down after he was hit by bottle blow. Broken pieces of bottle stained with blood were also taken into possession in a separate parcel sealed with impression 'R' vide seizure memo Ext. PD in the presence of witnesses. The dead body of Chaman Lal was sent for post mortem examination to District Hospital, Chamba. PW. 11 thereafter, prepared the site plan of the place of occurrence and place of recovery of dead body of Chaman Lal mark Ext. PL. He preferred application Ext. PW. to the Medical Officer, Tissa for getting injured PW. Ram Singh medically examined. He recorded the statements of the witnesses on 15-1-1999. Both the accused were also arrested by him on the same day. On return from the place of occurrence he deposited the case property with PW-9 MHC. Kalyan Singh at Police Station, Tissa. Thereafter further investigation was conducted by PW-16 ASI. Mangal Singh.

5. On 19-1-1999 accused Kheti Ram while in police Custody made disclosure statement mark Ext. PG in the presence- of one Gulab Singh and PW-7 Sheru disclosing that the shirt, pant and full sleeves sweater which he was wearing at the time of the occurrence had been concealed by him in a wooden box in his house at village Maghot which he could get recovered. PW-16 questioned accused Chet Ram who also made disclosure statement Ext. PF about concealment of his clothes i.e. pant, shirt and jacket which he was wearing at the time of the occurrence and also a pair of shoes in the presence of the witnesses. The disclosure statements were made by them at place known 'Arad'. Thereafter, both the accused led the policy party and the witnesses to their village Maghot and pointed out their houses. Both of them handed over their clothes to PW-16 which were identified by PW. Surinder Singh Seizure memos were prepared about the recovery of the clothes Exts. P-1 to P-6 and pair of shoes Ext. P-7 which were, sealed in a parcel. He recorded the statements of PW. Giano, PW-6 Paro, PW. 8 Ayub Mohamad Patwari, PW-9 H. C. Kalyan Singh and PW-10 Constable Bhagat Ram. He produced PW Surender Singh before PW-15 Shri Rajan Gupta, Addl. Chief Judicial Magistrate on 4-2-1999 who recorded his statement mark Ext. PS under Section 184, Cr. P.C.

6. On completion of the investigation and after the receipt of the Chemical Examiner Report Ext. PM. PW-12 Sub Inspector Rachpal Singh, Police Station, Tissa prepared challan and submitted the charge-sheet against both the accused persons before the learned Addl. Chief Judicial Magistrate, Chamba. The accused persons were committed to the learned Sessions Judge for trial. On appraisal of the police report, the learned Sessions Judge, Chamba found a prima facie case against both the accused and charged them for the offences under Sections 302, 307 and 323 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty to the charges and claimed to be tried.

7. In the trial Court, the prosecution examined as many as 16 witnesses besides placing on record certain documents. The learned trial Court on appraisal and scrutiny of the evidence came to the conclusion that the prosecution has established with positive and reliable evidence beyond reasonable doubt that the accused persons have committed offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code, hence convicted and sentenced them as aforesaid. However, they have been acquitted for the offence under Section 307, IPC. Both the accused have challenged their conviction and sentence by way of this appeal.

8. Mr. Anup Chitkara, learned counsel for the accused makes the following submissions :

1. That the prosecution has failed to prove that the injury suffered by deceased Chaman Lal were inflicted by the accused with bottle which was never taken into possession by the Investigating Officer to be the weapon of offence and that the cause of death was due to the injury, sustained by deceased Chaman Lal when he fell down from the 'Dhank' in the darkness;

2. The prosecution has not proved that the offence was culpable homicide amounting to murder falling within any of the Four Clauses of Section 300, IPC as there was no prior enmity or pre-planning and there was no evidence led by the prosecution that the accused had intention to cause death of Chaman Lal and;

3. That in the alternative the offence, if any, alleged to have been committed by the accused would fall within Exception 4 to Section 300, IPC punishable under Section 304(11) IPC.

9. Per contra, Mr. J.K. Verma, learned Asstt. Advocate General contended that the prosecution has proved the intention of the accused to murder Chaman Lal when Kheti Ram struck a blow of bottle on his head and their intention was further corroborated when they lifted and threw Chaman Lal in about 70 feet down below the 'Dhank' and, therefore the learned trial Court has rightly convicted the accused for committing the murder of Chaman Lal. In nutshell he has supported the judgment and order of the trial Court.

10. In order to appreciate the rival contentions of the learned counsel for the parties, we have re-appraised and scanned the entire evidence on record. It was not in dispute that PW. Km. Paro daughter of Sant Ram was engaged to accused Chet Ram and her age at the relevant time was about 15 years. PW. Ram Singh did not want that PW-5 should marry accused Chet Ram. The presence of both the accused at the scene of occurrence was also not disputed. The only point for our consideration was whether deceased Chaman Lal fell down in the 'Dhank' in the scuffle ensued between the parties or whether Chaman Lal died as a result of blow of bottle given by accused Kheti Ram on his head and thereafter the accused persons threw him down into the 'Dhank' to confirm his death. Eye-witnesses of the occurrence are PW-1 Ram Singh injured, PW-2 and PW-6. In his deposition PW-1 stated that on the day of 'Lohri' of the year 1999 (13-1-1999 the day of occurrence) he along with his brother Chaman Lal were going from their village to their maternal grand parents' house in village Siunra. When they travelled about 2 k.m. from their house, they met both the accused and PWs. 2 and 6 at a place known as 'Saryali Cheel'. Accused Chet Ram was dragging PW. Km Paro forcibly by holding her arm. PW-6 requested him to save her from accused Chet Ram. He asked accused Chet Ram as to why both the accused were taking her against her wishes. Accused Chet Ram told him that she was engaged to him by her father and when she tried to come closer to him, both the accused started giving beatings to her. Chaman Lal advised both the accused not to drag PW. Km. Paro forcibly against her wishes. The accused persons gave beatings to his brother Chaman Lal. Accused Kheti Ram struck a blow of bottle on the head of his brother Chaman Lal, as a result thereof blood started oozing out of his head and scattered on his face and as a consequence of the bottle blow Chaman Lal fell down on the ground. He requested PW-2 to release him from his custody so that he could save his brother from the accused, but the latter did not do so. Then, both the accused lifted Chaman Lal and threw him about 70 feet down from a 'Dhank' and thereafter they approached him and tried to lift him too with the intention to throw him down from a 'Dhank' where his brother was thrown and as he was holding the collar of shirt of PW-2, the accused could not succeed in their attempt. He deposed that accused Kheti Ram held his arm and was commanded to accompany him. He obliged him and after covering some distance, he got himself freed from the custody of accused Kheti Ram. Accused Chet Ram picked up a stone lying on the ground that hurled it from behind which struck on the back side of his head. Apprehending danger to his life he ran away towards village Sheru crying for help by calling the name of PW-5 Giano. On hearing his cries PW- Giano, one Teju and PW. Karam Chand @ Karmu came to him to whom he narrated the entire incident. They accompanied him to the place of occurrence, but failed to locate Chaman Lal in the 'Dhank' where he was thrown by the accused because by that time it had become dark. He came back to village Siunra late in the night and narrated the incident to PW. Narsingh his maternal brother. He along with PW. Narsingh and 2-3 more persons again visited the place of occurrence to make search for Chaman Lal but they failed to locate him alive or dead. It was only on the next day that they succeeded to locate the dead body of Chaman Lal from the 'Dhank', the people of the village protected the dead body of Chaman Lal and he went to the Police Station, Tissa and lodged FIR Ext. PA. He also stated that on the next day he came to District Hospital, Chamba where the dead body of his brother Chaman Lal was brought for post mortem. The bottle with which blow was given on the head of Chaman Lal had broken into pieces which were scattered at the place of occurrence. He has identified shirt Ext. P. 1, sweater Ext. P-2 and Pant Ex. P-3 worn by accused Kheti Ram at the time of occurrence and jacket Ext. P-4, shirt Ext. P-5, Pant Ext. P-6 and a pair of shoes Ext. P-7 belonging to accused Chet Ram. He emphatically denied the suggestion of the defence in the cross-examination that he wanted to contract second marriage with PW. Km Paro who was engaged to accused Chet Ram by her father. He also denied the suggestion that since PW. Km. Paro was taken by the accused forcibly, he and his brother deceased Chaman Lal made several attacks on the accused. Further suggestion of the defence that on the day of occurrence Dogro, Rakesh, Ram Chand and Karam Chand were hiding themselves at the place of crime and when the accused along with PW. Km. Paro reached there, he along with his brother Chaman Lal and the above named persons amounted an attack on both the accused, has been categorically denied by him. He emphatically denied the defence of the accused that in the scuffle ensued between him and his brother on one side and the accused on the other side. Chaman Lal accidently fell down from the 'Dhank' resulting his death. All other suggestions including false implication of the accused in this case have been specifically denied.

11. PW. Surinder Singh, admitted his presence at the place of occurrence on 13-1-1999 when he met both the accused in the company of PW. Km Paro where PW. Ram Singh and his brother Chaman Lal also met them. He has corroborated the entire testimony of PW-1 about the manner in which the occurrence took place and the part played by both the accused in the commission of the offence resulting the death of Chaman Lal and causing injuries to PW-1. In his presence and in the presence of one Gulab and PW. Sheru, the accused were interrogated by the Police on 19-1-1999 when they made disclosure statements that they had concealed their clothes in their house at village Maghot. The clothes and pair of shoes produced by the mother of the accused from one wooden box to the police which were taken into possession by the Police vide seizure memos Exts. PB and PC. He denied a suggestion of the defence that the police threatened him that if he refused to make statement as witness against the accused persons, the police would make him ah accused in this case. He emphatically denied a suggestion of the defence that deceased Chaman Lal accidentally fell from the 'Dhank' in the darkness when a scuffle ensued between the accused and Chaman Lal. He was a fruthful witness and his version has not been discredited and impeached by the defence. PW. Km. Paro has also corroborated the entire versions of PWs. 1 and 2 in her deposition before the Court. She also stated that on the day of 'Lohari' both the accused came to the house of her father at village Liunti. Her father after giving beatings to her had forcibly sent her with the accused. She stated that at the time of recording of her statement on July 20, 1999 her age was about 15 years. She categorically stated that PW Ram singh her brother-in-law (Jeeja) was given beatings by accused Kheti Ram on the day of occurrence at place 'Saryali Cheel' where she was forcibly taken by the accused in the presence of PW-2. She has clearly admitted that her brother-in-law PW Ram Singh did not want her to settle in the house of accused Chet Ram as his wife. She admitted having filed a suit against her father in the Court at Chamba. The suggestion of the accused that Chaman Lal died accidently because of fall from a 'Dhank' due to darkness when a scuffle took place between the accused and her brother-in-law Ram Singh, has been emphatically denied by her.

12. PWs. 3 and 5 un-equivocally stated that PW-1 in the evening of the day of occurrence shouted for their help and told that his brother Chaman Lal had been killed by the accused persons by giving blow of bottle on his head and throwing him down from the 'Dhank' PW-13 Dr. V.K. Pathak conducted post-mortem on the body of deceased Chaman Lal on 16-1-1999 who found clothes worn by the deceased his hair face neck, mouth nose and both eyes stained with blood. The description of the wounds on the dead body of the deceased were noticed as under :

1. Sharp edged shaped wound below the left eye lid 2' long x 1' x 1', muscles torn lacerated, the left maxillary bone appeared fractured. Wound was ante-mortem.

2. 2' x 1' x 1' lacerated wound in the left jaw below the angle of the mouth, margines and edges irregular and wound was covered with dried blood stains. Deep redish brown in colour, ante-mortem.

3. 11/2' x 1' x 1/2' sharp edge shaped wound below the left nostril, covered with blood dried up, red brown in colour, no fresh bleeding, ante-mortem.

4. Multiple ante-mortem abrasions over face, left shoulder left hand, left leg, left knee-colour brown, achymosia seen underneath the abrasions, right hand abrasion ante-mortem, evidence of bleeding which was dried up in the left ear. Left rygomalic wound (maxilla) fractured. Left petrous, temporal bone fractured. Left orbital bone fractured:

Cranium and spinal cordt :

13. Fracture skull-left petrous, temporal bond, Meninges lacerated, subdural, haematoma seen in the left side. Left temporal artery lacerated. Fracture of the left orbital bone seen. Meninges in the left temporal area lacerated, brain congested, blood clots seen in the posterior fossa and base of the brain.

14. In the opinion of Dr. V.K. Pathak, the person had died due to multiple wounds including injury to the head, fracture of the skull-subdural haemota, leading to shock and death. The probable time that elapsed between injuries and death was between 15 minutes to half an hour and between death and post-mortem, it was between 48 to 72 hours. Doctor said that injury No. 1 could only be caused if the bottle was broken and the same was struck on the body of the person. Injuries No. 1 and 3 were possible by one blow and injury No. 2 was not possible with fist blow but was possible by fall on a hard surface. Multiple abrasions found on the body of the deceased could be caused by dragging if one became unconscious. Injuries No. 1 to 3 were sufficient to cause un-consciousness and the remaining injuries could be caused by fall if somebody was thrown from a height. All the injuries were found sufficient to cause death of the deceased in the ordinary course of nature. On perusal of the Chemical Examiner report Ext. PM, no alcohol or poison was detected in the report of viscera of the deceased. Doctor also stated that when the bottle was hit against the face and it got broken and thereafter a push was given with force to the deceased, injuries No. 1 and 3 could be caused. In his cross-examination he stated that the injuries found on the body of the deceased could be sustained if he fail on sharp edged stone and it was one of the rarest case.

15. On re-consideration of the oral evidence of the eye-witnesses corroborated by medical evidence of Dr. V.K. Pathak, we are satisfied that the prosecution has proved that the injuries were inflicted on the head of the deceased Chaman Lal by accused Kheti Ram with blow of bottle which got broken after striking his head and thereafter the deceased was thrown by both the accused from the height of about 60 to 70 feet from a 'Dhank' resulting in his death. The broken pieces of the bottle stained with blood were taken into possession by PW-11 SHO/ Inspector in the presence of PW-4 from the scene of occurrence. Scientific Officer, State Forensic Science Laboratory, Junga in his report Ext. PN found human blood of AB group on the broken pieces of glass bottle. It is fact that the investigating Officer has not taken into possession the broken bottle but that circumstance by itself will not be a ground to disbelieve the positive and reliable evidence of the eye-witnesses corroborated by medical evidence that accused Kheti Ram struck a blow of bottle on the head of the deceased which was broken into pieces after strike. The first contention of the learned counsel for the accused that bottle was not connected with the injuries found on the head of the deceased as weapon of offence is wholly untenable and unsustainable. The trial Court found the defence of the accused persons improbable and unbelievable. After meticulously scanning both oral and documentary evidence, the accused persons were found guilty. For the reasons stated hereinabove there is no reason for us to decide differently and to differ from the view taken by the trial Court that bottle was used as a weapon of offence with which blow was given on the head of Chaman Lal by accused Kheti Ram.

16. The next question raised for our consideration is whether the prosecution has proved that the accused have committed murder of deceased Chaman Lal or the offence falls within exception fourthly to Section 300, IPC, punishable under Section 304(11), IPC, it is no doubt true that there is no evidence on record to prove that there was prior enmity between the accused and the deceased nor the accused had assembled at the place of occurrence after pre-planning to murder the deceased Chaman Lal. The testimony of the eye-witnesses PWs. 1, 2 and 6 as discussed above is positive, reliable and convincing to prove that the accused had the intention of causing such bodily injury as they knew to be likely to cause the death of the deceased and in any event they safely be attributed the knowledge with the bottle blow given by accused Kheti Ram on the head of the deceased Chaman Lal and thereafter, throwing him down from a 'Dhank' at the height of about 60 to 70 deep was so imminently dangerous that it must in all probability cause death or such bodily in jury as is likely to cause his death. If the accused wanted to inflict some minor injuries on the person of Chaman Lal, they should have not acted in a cruel of unusual manner throwing Chaman Lal down from a 'Dhank'. The circumstances in which the accused have committed murder of Chaman Lal are sufficient to hold that the offence committed by them is not covered by Clause fourthly of Section 300, IPC as contended by their learned counsel Dr. V.K. Pathak has categorically stated that all the injuries found on the dead body of the deceased were sufficient to cause his death in the ordinary course of nature. The intention or knowledge of the accused can be gathered from their overt act when they threw Chaman Lal from a 'Dhank' with all possibility that he would definitely die if injury inflicted upon him by striking the bottle on his head was not sufficient to cause his death. To bring the offence committed by the accused within clause fourthly of Section 300, IPC punishable under Section 304, IPC Mr. Anup Chitkara, learned counsel has relied upon Prandas v. The State, AIR 1954 SC 36 : (1954 Cri LJ 331), Chamru Budhwa v. State of M.P. AIR 1954 SC 652 : (1954 Cri LJ 1676), Dharman v. State of Punjab, AIR 1957 SC 324 : (1957 Cri LJ 420), State of A.P. v. Rayavarapu, AIR 1977 SC 45 : 1979 Cri LJ 1), Ram Swaroop v. State of Haryana, AIR 1977 SC 664 : (1977 Cri LJ 252). In re : Kudumula Mahanandi Reddi, AIR 1960 Andh Pra 141 : (1960 Cri LJ 303). State of U. P. v. Indrajeet, 2000 SCC (Cri) 1:338 : (2000 Cri LJ 4663), Kalu Ram v. State of Rajasthan, 2000 SCC (Cri) 86 : (AIR 2000 SC 3630) and Kalinder Bharik v. State of H. P. 2000 SCC (Cri) 96 : (AIR 2000 SC 3618).

17. We have considered the ratio of the aforesaid decisions. The requirements of Exception 4 of Section 300, IPC are : (a) without premeditation in a sudden fight; (b) in the heat of passion upon a sudden quarrel; (c) the offender has not take undue advantage; and (d) the offender has not acted in a cruel or unusual manner. Where these requirements are satisfied, culpable homicide would not be murder.

18. In State of Andhra Pradesh v. Rayavarapu Punnayya, AIR 1977 SC 45 : (1977 Cri LJ 1), it has been held as under :

'20. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this tease to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.'

19. In some bf the cases cited by Mr. Anup Chilkara, learned counsel, the Supreme Court had altered the conviction of the accused to Section 304, Part II, IPC when the offence of murder was found having been committed by him during grace provocation. In Kishore Singh v. State of Madhya Pradesh, AIR 1977 SC 2267 : (1977 Cri LJ 1937), the medical opinion about cause of death of the deceased was found hesitant and death had caused after one month of occurrence. In such circumstances, the offence committed by the accused was held to fail under Section 299 and not under Section 300, IPC. In Kalu Ram v. State of Rajasthan, 2000 SCC (Cri) 86 : (AIR 2000 SC 3630) on the evidence led by the proceedings, it was found by the Supreme. Court that the accused thought of to inflict injury to his wife Bimla to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. In such circumstances it was held that that the accused would not have intended to inflict the injuries which she sustained on account of his act and therefore, the offence was brought down from first degree murder to culpable homicide not amounting to murder. The conviction is altered from Section 302, IPC to Section 304, Part II, IPC. In Kalinder Bharik v. State of H. P., 2000 SCC (Cri) 96 : (AIR 2000 SC 3618), a number of ante-mortem injuries were found on the dead body of Saroj wife of the accused by the doctor. In postmortem report none of the injuries individually or collectively was sufficient in the course of nature to cause her death. In Doctor's opinion the death could be due to excessive bleeding and her organ and skull were found normal. In the facts and circumstances of that case, the conviction of the accused was altered from murder to culpable homicide not amounting to murder and the accused was sentenced under Section 304, Part II, IPC. In State of U. P. v. Indrajeet alias Sukhatha, 2000 SCC (Cri) 1338 : (2000 Cri LJ 4663), considering the type of weapon used, number and nature of injuries inflicted and absence of notice, intention to cause death or knowledge that death would be inevitably caused on account of the injury, the conversion of conviction under Section 302, IPC to that under Section 304, Part II, IPC was found justified in the facts and circumstances of the case. We do not consider it necessary to give detail, of all the decisions cited by the learned counsel for the accused. In Mahesh Balmiki v. State of M. P. (2000) 1 SCC 319 : (1999 Cri LJ 4301) it has been said as under (para 9 of Cri LJ) :

'Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302, IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302, IPC, in some cases under Section 304, IPC and in some other cases under Section 326, IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saying himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had he intention to kill the deceased. In any event he can safely be attributed the knowledge that the knife-blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.'

20. On careful re-appreciation and scanning of the evidence of the present case detailed hereinabove as well as on the basis of the settled law of the Supreme Court in the decisions supra, we are of the view that both the accused can safely be attributed the intention or the knowledge that bottle blow given by them on the head of Chaman Lal and thereafter bodily lifting him and throwing his body from a 'Dhank' at the height of about 60 to 70 ft. down, was imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death. Therefore, the accused persons have rightly been convicted under Section 302, IPC by the learned trial Court. Thus, the contention of the learned counsel that the offence committed by the accused would fall under Clause fourthly of Section 300, IPC punishable under Section 304, Part II, IPC does not merit acceptance.

21. The prosecution has further succeeded to prove its case that accused Chet Ram inflicted a stone blow on the back portion of injured PW-1. The truthful versions of PW-1 was corroborated by the evidence of PWs. 2 and 6. PW-14 Dr. Arun Gupta found three simple injuries on the head of PW-1 caused with blunt weapon. Dr. Arun Gupta stated that injuries No. 1 and 2 recorded in medico-legal certificate Ext. PQ were possible in a scuffle whereas injury No. 3 was possible if a stone was hit from behind by the person. In the teeth of the reliable and believable evidence on record, we are convicted that both the accused have been rightly convicted by the learned trial Court under Section 323 read with Section 34, IPC for inflicting injuries to PW. 1. The learned counsel for the accused has not seriously assailed that part of the judgment and order of the learned trial Court during arguments. Thus, the judgment and order of conviction passed by the learned trial Court against both the accused holding them guilty of the offences with which they were charged is sustainable. We, therefore, confirm the conviction and sentences imposed on them by the learned trial Court.

22. No other point is urged by the learned counsel for the parties.

23. For the above said reasons, there is no merit in this appeal and it is accordingly dismissed.