ARIJIT PASAYAT, J.

( 1 ) CHALLENGE in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court holding that the respondent deserves to be acquitted and the judgment of conviction and sentence as recorded by learned Additional Sessions Judge, Bhiwani is not correct. It is to be noted that learned Sessions Judge had found the respondent guilty of offence punishable under Section 304 of the Indian Penal Code, 1860 (in short the 'ipc') and was sentenced him to rigorous imprisonment for 10 years and fine with default stipulation. However the two co-accused persons Jai bhagwan and Anant Ram were acquitted.

( 2 ) BACKGROUND facts as projected by the prosecution are as follows: on 22. 3. 1989, it was PHAG festival. PW-4 Sher Singh, brother of nafe Singh (PW-3) had gone to the Bazar for playing PHAG. However, nafe Singh (PW-3) and his father Chandgi Ram (hereinafter referred to as the 'deceased') remained at the house. Naresh Kumar, nephew of Nafe Singh, visited them at about 3 pm and informed that Sher Singh (PW 4) had been beaten by carpenters of their village. On receipt of this information, PW-3 Nafe Singh alongwith his father Chandgi Ram went towards the houses of carpenters. His father was ahead of him, while he was following him. When they reached near the shop of Jai Singh, then he started talking with Jai Singh while Chandgi Ram went ahead. Chandgi enquired from the carpenters about the whereabouts of Sher singh, PW-4, upon which carpenters lost temper. Anant Ram and Jai bhagwan, accused (now acquitted) caught hold of Chandgi Ram from his arms while Krishan, appellant, inflicted a Lathi blow, on the head of chandgi Ram. On. receipt of the Lathi blow, he fell down and the appellant alongwith co-accused ran away. The occurrence was witnessed by Nafe singh and Jai Singh. In the meantime, Harish also appeared. Chandgi was put into a tempo and was taken to civil hospital, Dadri, where he was admitted and was medico-legally examined. The police reached the hospital. Nafe Singh made statement, Ex. PL, to Inder Singh Saini, Sub Inspector (PW-5) which was signed after admitting the same to be correct. Inder Singh Saini (PW-5)made endorsement Ex. PL/1 and sent it to the police station for registration of the case, on the basis of which formal FIR, Ex. PL/2 was recorded by dalip Singh, Sub Inspector. Inder Singh Saini SI (PW-5), then went to the place of occurrence but none was found there and he stayed in the village. On the next day i. e. on 23. 3. 1989, he called Chowkidar and Jai Singh also came there and on the pointing out of Jai Singh, he took blood stained earth from the spot after making it into a sealed parcel vide memo Ex. PM attested by the witnesses. He also recorded the statement of Sher Singh (PW-4) who had come there and sent him for his medico-legal examination to Civil Hospital Dadri. At about 8 a. m. , he received Ruqa through constable Ram Pal, informing him about the death of Chandgi and then he converted the offence into 302 IPC. He went to Civil Hospital, Dadri, and prepared inquest report, Ex. PG, and got conducted postmortem on the dead body of chandgi. Head constable Parkash Chand handed over one packet to him, which he took into possession vide Memo Ex. PM. He recorded the statements of the witnesses. He apprehended the appellant and his two companions on 27. 3. 1989. He interrogated the appellant and in pursuance of his disclosure statement, Ex. PQ, recovered Lathi, Ex. P3, which was made into a sealed parcel and was taken into possession. Before taking into possession, he prepared rough sketch of the Lathi, Ex. PS and also a site plan of the place of recovery, Ex. PT. As the accused persons pleaded innocence, trial was held. Prosecution examined six witnesses. One Jai Singh was given up as he was supposed to won over. The trial court placed reliance on the evidence of pw 3 and directed conviction as recorded above. In appeal the High Court found that there were several fac