The intention to kill is an essential element of the offence of murder.

JAI SINGH SEKHON, J.

1. The appellant was tried and convicted by the learned Sessions Judge, Kapurthala, for having committed house trespass and murder of Bachitter Singh punishable under Sections 449 and 302, Indian Penal Code, and sentenced to undergo R.I. for a period of four years and to pay a fine of Rs. 2000.00 or in default thereof to further undergo R.I. for one year on the first count, while to imprisonment for the and a fine of Rs. 2000/or in default thereof to further undergo R.L for one year on the second count. Both the substantive sentence were, however, directed to run concurrently. The other two co-accused Gurdip Singh and Gurmej Singh were, however, released on probation under Section 4(1) of the Probation of Offenders Act for a period of one year, as they were found guilty under Sections 323 and 448, Indian Penal Code. Feeling aggrieved against the said order only Balwinder Singh, appellant, has come up in appeal.

2. In brief, the facts are that the land of the father of all the accused and Bachitter Singh deceased are located adjacent to each other in the revenue estate of village Khiranwali. The deceased had no regular passage or access to his land. He requested Jarnail Singh father of the accused on many occasions to give him a passage, but the latter refused to oblige him. Bachitter Singh deceased then purchased 1/2 marla of land from Swaran Singh, a near collateral of the accused for the passage. With this background, on 27th October, 1986, at 9 P.M. Balwinder Singh appellant along with his two brothers Gurdip Singh and Gurmej Singh came in front of the house of Bachitter Singh deceased and exhorted him to come out and face the consequences of not providing them with a passage to their land. Bachitter Singh deceased along with his son Sukhdev Singh (P.W. 3) and his wife Mohinder Kaur (P.W. 5) came out in the courtyard of their house from their residence. All the accused thereafter entered the house despite the request of Mohinder Kaur not to harass them. Then all the accused started pelting brickbats towards these persons after pushing aside Mohinder Kaur. Some of the brickbats struck against the chest of Bachitter Singh who fell down. All these witnesses raised alarm on which their neighbour Pakhar Singh also arrived at the spot. Thereafter, the accused went away. Bachitter Singh injured was then removed in a tractor-trolly by his son Bikkar Singhand Pakhar Singh P.W. to Civil Hospital Kapurthala, where Dr. Harmit Pal Singh (P.W. 1) declared him dead at. 11.20 p.m. Sukhdev Singh P.W. then rushed to Police Station Kotwali Kapucthala and lodged report Ex. PH with A.S.I. Rajinder Singh at 12.15 a.m. during the night of occurrence. A case under Sections 304, 452 read with Section 34, I.P.C. was registered against all the accused. The special report of the F.I.R. was conveyed to the Illaqa Magistrate during the same night at 5 a.m. A.S.I. Rajinder Singh then prepared inquest report Ex. PC on the dead body of Bachitter Singh and sent the same for postmortem examination. Dr. Harmit Pal Singh (P.W. 1), found three external injuries, one of which was located on the first interphalangeal joint of right index finger, and the other near the left nipple, while the third had resulted in fracture of the 5th left rib on its anterior aspect. According to him, the cause of death was due to cardiac arrest as a result of injury No. 2, which was declared individually sufficient to cause death in the ordinary course of nature. The death took place within less than 45 minutes, while the autopsy was conducted within 24 hours.

3. A.S.I. Rajinder Singh inspected the spot on the morning of 28th October, 1986 and prepared its rough site-plan Ex. PK. He also found four brickbats lying scattered in the courtyard and took the same into possession vide Memo. Ex. PL, besides recording the statements of Mohinder Kaur and other witnesses. The accused was arrested on 3rd November, 1986 and arraigned for trial on such like allegati