JUDGMENT 1. - This criminal appeal is directed against the judgment of the learned Addl. Sessions Judge No 1. Alwar dated 3-2-1978, whereby the accused appellants were convicted under Sec 302/149, IPC and sentenced to imprisonment for life and to pay a line of Rs. 50/- each and in default of payment of fine each of the accused petitioners to undergo further rigorous imprisonment for one month. The accused-appellants were also convicted under Sec. 326/149, IPC and sentenced to four years rigorous imprisonment and to pay a fine of Rs. 50/- each and in default of payment of fine, each one of them to undergo rigorous imprisonment for one month. The accused-appellants were also convicted under Section 148, IPC and sentenced to six months rigorous imprisonment. Accused Harbux was also convicted under Section 324, IPC and sentenced to one years rigorous imprisonment. Accused Bhagwana, Somlya and Matadeen were convicted under Sec. 324/149, IPC and sentenced to one year's rigorous imprisonment. All the substantive sentenced were directed to run concurrently. 2. The brief facts of the ease which are relevant for the disposal of this appeal are that Dalla (PW/2) lodged a report at 12.30 a.m. on 30-4 1976 at the Sadar Police Station, Alwar that about 17-18 years ago his father Harish Chandra, Tundal, Ramjilal and others were convicted for the murder of Sheo Ram Bavria. These accused persons had come out of jail after having served out their sentences. On that might, at about 9 30 p.m. Harish Chandra, Tundal, Amar Singh, Ramjilal and Dalla were sitting on the chabutari and were talking. The marriages of two daughters of Surja Ram were to take place on Akha Teej. Surja was asking Siriya for his share in the gram crop. Siriya felt annoyed and he went to his house. After sometime, Siriya, Harbux, Kishori, Bhagwana, Matadeen, Badri and Somlya came to the house of Surja. Har bux was armed with a gun. The other accused persons were armed with farsis. Harbux had fired the gun which hit on the legs of Ramjilal The others started dealing blows with farsis. All of the accused had surrounded Amar Singh and Kishori, Matadeen and Bhagwana each gave farsi blows to Amar Singh, as a result of which he fell down Then Badri gave a farsi blow on the buttocks of Amar Singh. Harbux had fired the gun which hit on the legs of Ramjilal The others started dealing blows with farsis. All of the accused had surrounded Amar Singh and Kishori, Matadeen and Bhagwana each gave farsi blows to Amar Singh, as a result of which he fell down Then Badri gave a farsi blow on the buttocks of Amar Singh. Somlya also dealt a farsi blow on the left hand and right thigh of Amar Singh. Harish Chandra and Tundal tried to save Amar Singh hand, as such, they were also assaulted. Amar Singh died on the spot. A gun was recovered by the police at the instance of Harbux and farsis were recovered at the instance of other accused persons. Postmortem was conducted on the body of the deceased Amar Singh and an inquest report was prepared. Siriya and Kishori absconded and as such, could not be arrested Charges under Section 148, 302/149, 326, and 326/149 were framed against Harbux. Against the remaining four accused Matadeen, Badri, Somlya and Bhagwana charges under Section 148, 302, 302/149, 326 and 326/149, IPC were framed. 3. Please of all the five accused was recorded who denied the charges and claimed to be tried. 4. On behalf of the prosecution 10 witnesses were examined. PW/2 Dalla stated that about 9 p.m. he went to the house of Surja. The marriage of the daughters of Surja was to taken place of Akha Teej. Surja wanted the share in the gram crop of Siriya. Surja felt annoyed and went to his house. He returned there after 15-20 minutes along with Kishori. Matadeen, Harbux, Somlya, Badri and Bhagwana. Harbux was armed with a gun and the rest were armed with farsis. Kishori dealt a farsi blow on the hand of Tundal. Somlya gave a farsi blow on the back of Tundal. Surja gave a farsi blow on the left shoulder of Tundal Surja then dealt a farsi blow on the right hand of Harchand. Harbux fired towards Ramji Lal. Ramjilal received the gun-shot injuries on his legs. Then all the seven accused persons surrounded Amarsingh. Somlya, Badri, Kishori, Bhagwana and Matadeen dealt farsi blow on Amar Singh. Amar Singh received injuries on his hands, thigh, and buttocks. He died as a result of these injuries. He further stated that Matadeen is the son of Sheo Ram. All the accused persons are relatives. Then all the seven accused persons surrounded Amarsingh. Somlya, Badri, Kishori, Bhagwana and Matadeen dealt farsi blow on Amar Singh. Amar Singh received injuries on his hands, thigh, and buttocks. He died as a result of these injuries. He further stated that Matadeen is the son of Sheo Ram. All the accused persons are relatives. Sheo Ram was sentenced in a murder case. Tundal, Ramjilal and others were also sentenced. In that case, Sheo Ram was murdered and the accused persons were released from jail after serving out the sentence for about 10 years. Dalla further stated that Ramjilal is his uncle. Tundal is also related to him. Surja is also related to him. He was not in a position to say which of the accused persons dealt blows to Amar Singh at what place. This version of PW/2 Dalla was substantially supported by PW/3 Ramjilal, PW/4 Harish Chandra and PW/5 Tundal. 5. PW/1 Dr. P.S. Agarwal conducted the postmortem on 30-4-1976 at 11.15 a.m. on the deceased body of Amar Singh and found the following injuries on his person:- 1. "Incised wound 10cm x 6cm shaped into muscle deep on left fore-arm dorsally middle 3rd part. 2. Incised would 10cm x 4cm x bone deep on right arm transverse anterio-laterally on upper part with bone cut underneath. 3. Incised wound 12cm x 4cm x bone deep transfers on right arm anterio-laterally 3cm below injury No. 2 with bone out underneath. 4. Incised wound 9cm x 31/2cm x bone deep on right arm anterio- laterally 4cm below injury No. 3 with bone cut underneath. 5. Incised wound 4cm x 1cm x muscle deep on right fore arm dorsally upper part. 6. Incised wound 4cm x 1cm x muscle deep on dorsum of right wrist. 7. Incised wound curved 10cm x 41/2cm x bone deep on dorsum of right hand with cut of thumb and ring metacarple with clots. 8. Incised wound 13cm x 5cm x bone deep on right thigh middle 3rd part with bone cut underneath on anterior aspect. 9. Incised wound 10cm x 3cm x muscle deep on right knee medically longitudinal. 10. Incised wound 12cm x 4cm x muscle deep on left thigh posterio-laterally upper part with bone cut underneath. 11. Incised wound 5cm x 3cm x muscle deep on scalp in cononal plane just on left side 4cm above hair margin. 12. 9. Incised wound 10cm x 3cm x muscle deep on right knee medically longitudinal. 10. Incised wound 12cm x 4cm x muscle deep on left thigh posterio-laterally upper part with bone cut underneath. 11. Incised wound 5cm x 3cm x muscle deep on scalp in cononal plane just on left side 4cm above hair margin. 12. Hasmotoma in 4cm x 4cm area in left parietal eminence. 13. Haematoma 5cm x 2cm x muscle deep on right scapula. 6. In the opinion of the Medical Officer these injuries could be caused by sharp edged weapon like farsi. These injuries were sufficient in the ordinary course of nature to cause death. In the opinion, of the Medical Officer, the death was caused due to multiple injuries, fracture, haemorrhage and shock. He has further opined that injuries No. 12 and 13 were on the vital part of the body, but were simple in nature. 7. Dr. Agarwal also examined Dalla and found the following injuries on his body:- 1. Incised wound curved 14cm x 6cm x muscle deep on left shoulder anterior part with bleeding. 2. Incised wound 6cm x 3/4cm x muscle deep on left arm upper part posterio-laterally with clot. 3. Incised wound 20cm x 3/4cm x skin deep on right leg posterioraly. 4. Abrasion 11/2cm x 1cm on left second toe. 8. Similarly, he examined Tundal and Ramji Lal. The injuries received by Ramji Lal were found to be simple in nature. 9. The Station House Officer, Thana Sadar, PW/IO Shambhu Dayal was also examined. 10. After recording the plea of the accused who pleaded not guilty and claimed to be tried, the defence witnesses were examined. 11. DW/1 Mst. Mathuri stated that about 13 months age Siriya, Kihori, Budha. Jhabbar and Bhanwar demanded their share from Surja in the gram crop. Surja went and called Tundal, Surja, Amar Singh. Dalla, Har Chand and Ramjilal who were armed with farshis. After coming they assaulted Surja and Kishori. Surja and Kishori also used farsi. Budha DW/7 staled that about quarter to two years back, at about 9 pm. he, Bhanwar, Jhuntha, Kishori and Siriya went to Gorwadi to distribute gram crop When Siriya wanted the share in the gram crop, Ramjilal, Harish Chandra, Tundal, Amar Singh and Dalla came there on his request and started marpeet with lathis and farsi . Budha DW/7 staled that about quarter to two years back, at about 9 pm. he, Bhanwar, Jhuntha, Kishori and Siriya went to Gorwadi to distribute gram crop When Siriya wanted the share in the gram crop, Ramjilal, Harish Chandra, Tundal, Amar Singh and Dalla came there on his request and started marpeet with lathis and farsi . DW/5 Ram Das stated that on the night of incident Bhagwana was at h s house and was attending Kirtan. 12. It has been contended on behalf of the accused-appellants that all the eye-witnesses are close relations and had previous enmity. It was further contended that except accused Badri, the rest of the accused were witnesses in in the case pertaining to the murder of Sheo Ram. The alleged eye-witnesses Ramjilal, Tundal and Harish Candra were convicted. Under such circumstances, the entire set of witnesses are either close relations of parties and cannot be relied upon. It was also contended that there are vital contradictions in the statement of the eye-witnesses and that their statement are not supported by medical evidence. It was also contended that there were houses nearby, but none of the independent witnesses were examined. It was also contended that the recovery of farsi does not lend support to the prosecution case as it was not been established that these farsis were stained with human-blood. It was also contended that the night of the incident was a patch, dark-night as it was Amavashya on that night. Under such circumstances, the accused persons could not be identified. It was also contended that the incident took place on the question of division of the gram crop relating to Surja, then there was no question of murdering Amar Singh. It was also contended that there was no intention of causing death and if any offence is made out, it is under Section 326 and not under See. 302, IPC. 13. This incident of marpeet took place when Surja demanded his share in the gram crop from Siriya. The prosecution case is that Siriya went to his house and came back after 15 or 20 minutes accompanied by other-persons. PW 2 Dalla, PW 3 Ramjilal, PW 4 Harchand and PW 5 Tundal are eye-witnesses who have received injuries on their persons. The details of the injuries have been mentioned in the injuries report by Dr. Agarwal. The prosecution case is that Siriya went to his house and came back after 15 or 20 minutes accompanied by other-persons. PW 2 Dalla, PW 3 Ramjilal, PW 4 Harchand and PW 5 Tundal are eye-witnesses who have received injuries on their persons. The details of the injuries have been mentioned in the injuries report by Dr. Agarwal. The injury on the person of these witnesses lend support to the fact that these witnesses were at the site when the occurrence took place The FIR was lodged about 31/2 hours after the incident, wherein it has been mentioned that Surja ran away seeing the incident. Ramjilal also ran away after having received the injuries on his legs, by the gun shot fire by Harbux. 14. Learned counsel for the appellants has contended that it was a pitchdarm night and these witnesses could not have identified the accused persons. It is also contended that the marpeet took place all of a sudden on the question of share of Surja in the gram crop. The prosecution case further is that Siriya went to the house of Surja along with persons and started belabouring the persons who were present there. The entire trouble seems to have sparked off on the spur of the moment when Surja wanted his share in the gram crop, Siriya called these persons. The action of that accused-appellants cannot be said to be pre-planned or calculated one. There is a distinction in the penalty to be inflicted where the intention to kill being present, the act would have amounted to murder, buffer its having failed within one of the exceptions to Section 300 and those cases in which the crime is culpable homicide not amounting to murder, is to say, where there is a knowledge that death will be a likely result, but without any intention to cause death or to cause such bodily injury likely to cause death is absent. Tart II of Sec 304, IPC provides for punishment in a case when the Act is done with the knowledge that it is likely to cause death, or to cause such bodily injury as is likely to cause death, but without any intention at is likely to cause death is the offence that is made punishable under Section 304 II. IPC, the same offence namely, an offence of culpable homicide not amounting to murder. IPC, the same offence namely, an offence of culpable homicide not amounting to murder. It only provides punishment under that section, namely, an offence of culpable homicide not amount to murder. It only provides different circumstances. Section 304-11, IPC deals with the cases when the act is done with the knowledge that it is likely to cause death without any intention to cause death or to came such bodily injury that is likely to cause death. Section 304, IPC divides the offence of culpable into two degrees of guilt, the graver of which depends on the intention provided to be inferred from all the circumstances and the less serious of which does not depend on the intention at all. Though, the absence or presence of intention is the criteria to be adopted in deciding on which side of the line an offence under Section 304 falls, that is, whether on the graver or the less serious side. There are cases in which there is an intention which makes the offence the graver offence of culpable homicide, but which would yet fall short of the intention requisite to satisfy Section 300. In the present case, the accused Badri was acquitted of all the charges The remaining accused Bhagwana, Matadeen, Somlya and Harbux were also acquitted of the offence under Section 302, 326 IPC. These accused persons were convicted under Secs. 302/149, and 326/149, IPC. 15. Taking into consideration the long standing enmity between the parties, the manner in which the incident has taken place, the cause of asking a share in the gram crop etc. leads to the conclusion) that the accused persons intended to cause bodily injuries to Amar Singh and others, but never intended to kill these persons. 16. The prosecution has succeeded in bringing the guilt home to the accused persons on the various charges on which they have been found guilty by the learned trial Court except on the charge under Sec. 302/149, IPC. 17. In this view of the matter, the appeal filed by the accused-appellants deserved to be partly allowed. The accused appellants are acquitted of the office under Section 302/149, IPC, but are. instead, convicted under Section 304-II, IPC. The sentence of life imprisonment under Section 302/ 149. IPC is, therefore, set aside; but the accused-appellants are convicted under Section 104-11/149 IPC and sentenced to seven years' rigorous imprisonment with a fine of Rs. The accused appellants are acquitted of the office under Section 302/149, IPC, but are. instead, convicted under Section 304-II, IPC. The sentence of life imprisonment under Section 302/ 149. IPC is, therefore, set aside; but the accused-appellants are convicted under Section 104-11/149 IPC and sentenced to seven years' rigorous imprisonment with a fine of Rs. 50/- each and in default of payment of fine to under go a further rigorous imprisonment for one month. The lest of the convictions and sentences of ail the above accused-appellants on the various other charges are upheld. 18. The appeal filed by the accused-appellants is,therefore,partly allowed as stated above. All substantive sentences shall run concurrently with the sentences awarded to the accused-appellants under Section 304/149, IPC.Appeal Partly allowed. *******