The intention to cause bodily injury, even if it is likely to cause death, does not constitute murder under Section 302 RPC, but rather culpable homicide not amounting to murder under Section 304 Part-II RPC.

1. This appeal arises out of an internecine fight between two brothers and their family members. Vide judgment dated 2-8-1994 and 5-8-1994 passed by the learned 2nd Addl. Sessions Judge, Jammu, the appellants were convicted under section 302 read with section 34 R.P.C and sentenced to under-go imprisonment for life and to pay a fine of Rs.2000/- each. The appellant Onkar Singh has also been convicted under section 323 RPC_ and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 200/-. The deceased Jagdev Singh was the real brother of the appellant Baldev Singh and uncle of appellant Onkar Singh. The appellants are the father and the son. The matrix of the prosecution case is that on 17-07-1991, the complainant Balwan Singh and his father deceased Jagdev Singh were cultivating their land in village Agwan, Tehsil R.S. Pora, when at about 8.30 AM the appellant accompanied by Smt. Sunita Devi and Smt. Anita Devi (daughters of appellant Baldev Singh) criminally tres-passed there. The appellants were carrying spades (˜Kahis™) in their hands and they treatended the deceased and the complainant to immediately desist from doing any work, otherwise face the physical liquidation. The deceased resisted the threat by pleading that the land belonged to him and they were not doing any objectionable act. Such an excuse was a bolt from the blue for the appellant Baldev Singh, who lost his senses and gave a blow with the spade on the head of Jagdev Singh. He was followed by the appellant Onkar Singh who did the same tiling as he also inflicted an injury with the spade on the head. Thereafter, they inflicted more injuries on the back and other parts of the body of the deceased. When complainant came to the rescue of his father, he was attacked by the appellant Onkar Singh, who inflicted two injuries which landed on the right arm and the back, Smt. Sunita Devi and Smt. Anita Devi threw stones on the complainant and the deceased. The deceased Jagdev Singh fell on the ground and on this happening, the appellants alongwith Smt. Sunita Devi and Anita Devi dis-appeared from the spot. The complainant took the injured Jagdev Singh to R.S. Pora Hospital where he was admitted. Babu Ram Sharma, Sub Inspector, received the information of the incident who arrived in the Hospital and recorded the statement of the complainant. The deceased Jagdev Singh was unconscious and he could not regain senses till he succumbed to the injuries. On the basis of this statement at 1.30 PM, the case was registered under FIR No. 185/91 in Police Station, R.S. Pora for the Commission of offences under sections 307/447/324 RPC read with section 34 RPC. On the same day, the injured Jagdev Singh was shifted to SMGS Hospital, Jammu where he died on 31-7-1991. On 20-5-1992, the appellants alongwith Smt. Sunita Devi and Smt. Anita Devi were charged by the learned 2nd Addl. Sessions Judge, Jammu for the commission of offences under sections 302/34, 447,323 RPC. They pleaded not guilty and the prosecution examined Balwan Singh PW-3, Ajit Singh PW-4, Nasib Singh PW-5, Subash Singh PW-6, Ganpat Rai PW-7, Surjit Kumar Patwari PW-8, Dr. V.K. Verma PW-9, Dr. S.D. Thakur PW-10, Joginder Lal Constable PW-11, Ravinder Kumar Chalotra (SHO Police) PW-12 and Babu Ram SI PW-13 as witnesses. Relying upon the prosecution evidence, the learned Judge held the appellants guilty for the commission of murder of Jagdev Singh. Appellant No.2 was also found guilty for causing simple hurt to complainant Balwan Singh. They were convicted and sentenced as stated above. The co-accused Smt. Sunita Devi and Anita Devi were acquitted.

2. The appellants have challenged their conviction and sentence on the grounds that the trial court has mis-appreciated the evidence. The testimony of sole eye witness namely, complainant Balwan Singh, was of shaby and shaky nature but the same has been treated as credulous and relied upon. He had given two different versions of the alleged o