JUDGMENT 1. - The above two appeals are directed against the same judgment of the learned Sessions Judge, Alwar dated 10th November, 1980, by which the accused-appellants have been convicted and sentenced in the following manner : Accused's name Conviction Sentence 1. Latoor, Gordhan Khiladi & Kanhaiya u/s. 302/149, IPC. Each to undergo imprisonment for life and a fine of Rs. 200/-each and in default of payment of fine to further undergo 2 months' rigorous imprisonment. u/s. 148, IPC Each to undergo one year's rigorous imprisonment. u/s. 325/149, IPC Each to undergo 2 years' rigorous imprisonment and to pay fine of Rs. 100/- each and in default of payment of fine to further undergo one month's R.I. 2. Khiladi and Kanhaiya u/s. 324, IPC Each to undergo one year's rigorous imprisonment. 3. Latoor and Gordhan u/s. 324/149, IPC Each to undergo one year's rigorous imprisonment. 4. Kajoda u/s. 302/149, IPC Life Imprisonment & a fine of Rs. 200/- u/s. 148, IPC One year's rigorous imprisonment. u/s. 325/149, IPC Two years' rigorous imprisonment and a fine of Rs. 100/- u/s. 324/149, IPC One year's rigorous imprisonment. All the sentences have been ordered to run concurrently. 2. Shortly stated the prosecution story is that on 30th June, 1979 Dwarka Prasad (PW/4) lodged an FIR at the Police Station, Malakhoda at 1-45 p.m. that Ram Swaroop, uncle of the informant, was going to invite persons to dinner. Nearabout a custom post situated near the railway crossing accused persons, namely, Kanhaiyalal. Kajoda, Latoor, Khiladi, and Gordhan Meenas and Shriram Brahmin came armed with farsis and this and started giving fatal blows on Ram Swaroop with an intention to kill him and inflicted severe injuries on legs, back and other parts of his body. It was further mentioned in the report that Ram Swaroop has received serious injuries and blood was coming out of the said injuries and his condition was serious and he had already been admitted in the Government Hospital, Malakheda. The Officer-in-charge of the Police Station registered a case under Sections 147, 148, 149 and 307, IPC and started investigation. Dr. Rajinder Singh (PW/3) attended Ram Swaroop and, thereafter recorded his dying declaration vide Ex. P/s Injured Ram Swaroop was also examined by Dr. J. S. Pahuja (PW/2) and, he found the following injuries on his person : 1. The Officer-in-charge of the Police Station registered a case under Sections 147, 148, 149 and 307, IPC and started investigation. Dr. Rajinder Singh (PW/3) attended Ram Swaroop and, thereafter recorded his dying declaration vide Ex. P/s Injured Ram Swaroop was also examined by Dr. J. S. Pahuja (PW/2) and, he found the following injuries on his person : 1. Incised wound with bleeding 3"x 1/4"x 1/4" on parietal area of scalp in left side. 2. Lacerated wound with bleeding semilunar in shape 11/2 x 1/4"x 1/4" on the anterior surface of the right lower leg. 3. Lacerated wound with compound fracture 1/2" x 1/2" x bone deep on the anterior surface of right lower leg 4" above the ankle joint. 4 Lacerated wound 1" x 1/2" x 1/2" on the posterior aspect of the left elbow joint. 5. Lacerated wound with compound fracture shaft humerus on the anterior aspect of the right upper part. 6. Incised wound 21/2" x 1/4" x 1/4" on the anterior aspect of the left wrist joint. 7. Lacerated wound with compound feature on the lateral aspect of right upper arm 1/2" x 1/2" x bone deep. 3. According to Dr. Pahuja there were fractures on certain parts of the body of Ram Swaroop and his general condition was not satisfactory and he was in acute severe shock. Kotwali Alwar was informed about the situation. At the same time, X - rays of the right lower leg. upper-arm, left elbow joint, right upper arm and chest were also advised. Dr. Pahuja mentioned in his injury that injuries No. 1 to 6 were caused by sharp object and injuries No. 2, 3, 4, 5 and 7 were caused by blunt object. Injuries No. 1 to 6 were simple in nature. According to Dr. Pahuja, Ram Swaroop died of hemorrhage and shock on 1 July, 1979 at 9.20 a. m He conducted the autopsy of the deceased, and found the following injuries on his person. 4. Ribs 4, 5, 6, 7, 8 on the anterior surface of the chest right side were fractured at mid clavicle line. Right lung had collapsed. The shaft of the humerus of right upper arm at mid zone was fractured. The shaft of tibia and fibula bones of right lower leg at lower l/3rd area was fractured. 5. 4. Ribs 4, 5, 6, 7, 8 on the anterior surface of the chest right side were fractured at mid clavicle line. Right lung had collapsed. The shaft of the humerus of right upper arm at mid zone was fractured. The shaft of tibia and fibula bones of right lower leg at lower l/3rd area was fractured. 5. He further stated that the cause of death of the deceased, Ram Swaroop was multiple injuries with fractures of the ribs and other bones described above, accompanied with hemorrhage and shock. ``It was also stated by the Doctor that all the injuries were ante-mortem in nature. He also stated that the multiple injuries of the ribs with collapse lung and shock were sufficient in the ordinary course of nature to cause the death. 6. The police as such filed a challan against five accused appellants and one Sriram in the Court of Judicial Magistrate No. 1, Alwar. The learned Judicial Magistrate committed the case to the Court of Sessions for trial. The learned Sessions Judge framed charges under Section 302/149 IPC and several other sections of the Indian Penal Code against all the above accused persons against whom the challan had been filed. 7. The prosecution in support of its case examined 13 witnesses in all. The accused persons in their statement under Section 313, Cr. P.C. denied the prosecution case in toto. Shriram and Khiladi accused persons also pleaded that they were not at all present in the village and had gone to some other village at the time of the incident. The accused persons also examined five witnesses in defence. The learned Sessions Judge after considering the entire evidence on record acquitted Shriram, but convicted and sentenced the remaining five accused persons in the manner indicated above. 8. The prosecution case mainly depends on the testimony of PW/4 Dwarka Prasad who had lodged the First Information Report and the two eye-witnesses PW/5 Kailash and PW/6 Prahlad. The prosecution has also placed reliance on the dying-deciaration of Ram Swaroop, Ex. P/5. The learned counsel for the defence argued that the testimony of PW/5 Kailash and PW/6 Prahlad should not be believed as they are highly interested witnesses and there are material discrepancies in their statements. The prosecution has also placed reliance on the dying-deciaration of Ram Swaroop, Ex. P/5. The learned counsel for the defence argued that the testimony of PW/5 Kailash and PW/6 Prahlad should not be believed as they are highly interested witnesses and there are material discrepancies in their statements. It was also argued that the presence of these two witnesses is highly doubtful as according to their statements they did not report the matter immediately at the Police Station, nor cried for any help, nor went to call any person from the neighbourhood to intervene in the incident. It was also argued that the incident had taken place at about 11 or 12 O'Clock in the day on 30th June, 1979 and they were also present for the whole day in the village and the FIR had been lodged at 145 p.m , but still no explanation has been given as to why such statements were recorded late in the evening. It was also argued that according to the statement of Dwarka Prasad during trial, he was not an eye-witness of the occurrence and PW/5 Kailash had only told him that some Meenas and a Brahmin had attacked his uncle Ram Swaroop. But no explanation has been given as to how Dwarka Prasad mentioned the names of the accused persons in the FIR. It was, thus, submitted that the FIR, which was lodged by Dwarka Prasad in the present case was not a genuine document and had been registered afterwards by falsely including the names of the accused persons in it. It was submitted that when Kailash had not disclosed the names of the accused persons than it was not possible at all for Dwarka Prasad to have mentioned the names of the accused persons, specifically in the FIR when admittedly according to the prosecution he was not an eye-witness of the occurrence. It was further submitted that as deep rooted enmity was existing between the parties, as such, Dwarka Prasad involved all the accused persons and mentioned their names in the FIR falsely. 9. It was also argued on behalf of the defence that the names of PW/5 Kailash and PW/6 Prahlad were not mentioned in the FIR and, on this account also, the evidence of PWs 5 and 6 was created afterwards and no reliance can be placed on the testimony of such witnesses. 10. 9. It was also argued on behalf of the defence that the names of PW/5 Kailash and PW/6 Prahlad were not mentioned in the FIR and, on this account also, the evidence of PWs 5 and 6 was created afterwards and no reliance can be placed on the testimony of such witnesses. 10. As regards dying declaration it was argued that it does not contain any signature or thumb impression of Ram Swaroop. It was also argued that PW/3 Dr Rajinder Singh, who had recorded the dying declaration, has admitted in his cross examination that some persons were prompting Ram Swaroop at the time of recording his dying declaration and as such it cannot be relied. 11. It was also argued on behalf of the defence that there are discrepancies in the ocular evidence and the injury report. It is submitted that none of the eyewitnesses have stated that any injury was inflicted on Ram Swaroop on the chest while, according to Dr. Pahuja fractures of ribs have been found on postmortem examination. In this regard, it was also argued that there are no external injuries at all found on the body of Ram Swaroop on the chest and this internal injuries of fracture of ribs go unexplained. 12. On the other hand, it was submitted by the learned Public Prosecutor that the FIR in this case was lodged at 1.45 p.m. immediately after the occurrence and all the accused persons were named in the FIR. PW/5 Kailash had informed Dwarka Prasad that some Meenas and Brahmins had inflicted Injuries on Ram Swaroop and immediately thereafter Dwarka Parsad had gone on the spot and Kailash had followed him and thereafter he had told the entire details of the occurrence, and had also disclosed the names of the accused persons. In these circumstances Dwarka Prasad had sufficient information with him for disclosing the names of the accused persons. It was also argued by the learned Public Prosecutor that there was fracture of the arm of Ram Swaroop and, as such, it was not necessary to have any external marks of injury regarding the fracture of the ribs. As regards the dying declaration it was submitted that it was recorded in the presence of PW/3 Dr. Rajinder Singh and it has been recorded in a most natural way and it fully corroborated the prosecution case. 13. As regards the dying declaration it was submitted that it was recorded in the presence of PW/3 Dr. Rajinder Singh and it has been recorded in a most natural way and it fully corroborated the prosecution case. 13. We have given our careful consideration to the arguments advanced by the learned counsel for the defence as well as the learned Public Prosecutor and have thoroughly perused the record. The FIR in this case was lodged immediately after the occurrence by PW/4 Dwarka Prasad, who was the nephew of the deceased, Ram Swaroop. It was clearly mentioned in the FIR that when Ram Swaroop was going to invite persons for dinner, then all the accused persons came armed with farsis and lathis, attacked on Ram Swaroop and inflicted injuries on head, legs, back and other parts of his body. The police registered a case under sections 147, 148, 149 and 307, IPC. Ram Swaroop was immediately taken to Government Dispensary Malakheda and his injuries were examined, by PW/2 Dr. J. S. Pahuja. Ram Swaroop thereafter succumbed to injuries on 1st July, 1979 at 9 25 a. m. PW/5 Kailash and PW/6 Prahlad were the eye-witnesses who were present at the scene of occurrence and we find no infirmity in their statements. Though, the learned counsel for the defence have argued that these witnesses were interested in the prosecution as they had also appeared from the side of the prosecution on earlier occasions also in some other cases; but in our view their statements cannot be discarded merely on that ground. Nothing has been brought out in the cross-examination that these witnesses had any enmity with the accused persons or had any other axe to grind against the accused persons. Both the above witnesses have clearly stated that they were present at the time of the commission of the crime and have witnessed the entire acts committed by the accused persons. They have clearly deposed that all the accused persons had surrounded Ram Swaroop and were inflicting injury by weapons like farsa, tanchiya and lathi. It has also come on record that litigation regarding agricultural lard was going on between the parties and Ram Swaroop had succeeded in the litigation Thus, we are clearly of the view that the accused-appellants had inflicted injuries on Ram Swaroop on the date and time as alleged by PW/5 Kailash and PW/6 Prahlad. 14. It has also come on record that litigation regarding agricultural lard was going on between the parties and Ram Swaroop had succeeded in the litigation Thus, we are clearly of the view that the accused-appellants had inflicted injuries on Ram Swaroop on the date and time as alleged by PW/5 Kailash and PW/6 Prahlad. 14. So far as the dying declaration is concerned, it has come in the evidence of P/W 3 Dr. Rajinder Singh that prompting was given to Ram Swaroop when his dying declaration was recorded. Ram Swaroop in his dying declaration had also mentioned that the names of Chhotiya son of Bal Kishan and one person who was the grand-son of Shiv Bux as guilty associates in the crime. The prosecution has failed to explain as why challan was not filed against these persons when they were named in the dying declaration. It may also be seen that the names of these two persons, Chhotiya and the grand-son of Shiv Bux, were not mentioned in the FIR. In the dying declaration, it was only mentioned that Kanhaiyalal, Gordhan and Kajod gave beating to Ram Swaroop. But so far as the other persons are concerned, it has not been mentioned that any beating was given by them. In view of these circumstances, we do not find it safe to place reliance on such dying declaration 15. After having come to the conclusion that the accused-appellants were guilty of giving beating and causing injury to Ram Swaroop, the question remains as to what offence has been committed by them in the facts and circumstances of the case. A perusal of the injuries mentioned above goes to show that there were two incised wounds and five lacerated wounds found on the body of Ram Swaroop. So far as the Other five laceraated wounds are concerned, one was incised wound with bleeding 2"x 1/4" x 1/4" on the parietal area oF scalp on the left side. The other is incised wound 23/4" x 1/4" x 1/4" on the interior aspect of the wrist joint. According to Dr. Pahuja (P. W. 2), the above mentioned two injuries were not grievous nor were that cause of death. The other is incised wound 23/4" x 1/4" x 1/4" on the interior aspect of the wrist joint. According to Dr. Pahuja (P. W. 2), the above mentioned two injuries were not grievous nor were that cause of death. So far as the other five lacerated wounds are concerned, a wound was on the right lower leg; another on ankle joint, next one on left elbow joint, and then there were compound fracture of humerus and lateral aspect of right upper arm. Admittedly, there were no marks of external injuries found by the Doctor with regard to the fracture of the ribs 4, 5, 6, 7 and 8, which were detected by him after the post mortem examination of the dead body of Ram Swaroop. According to the above mentioned two eye-witnesses, namely, Kailash and Prahlad, Kanhaiyalal was armed with farsi, Latoor and Khiladi with appellant. Which were also weapons like axe. So far as the other accused persons are concerned, they were armed with lathis, According to the prosecution case, these six accused persons, out of whom three were armed with sharp edged weapons and others were armed with blunt objects had surrounded Ram Swaroop on the way and had free hand to inflict injuries on the body of Ram Swaroop as they liked, and according to Kailash and Prahlad they only remained by standers and had no courage to intervene in the right. Ram Swaroop was an old man of near about 70 years of age. We are clearly of the opinion that in case the accused persons had an intention of causing death, then they would not have inflicted such kind of injuries which have been found on the body of Ram Swaroop. As already mentioned above so far as the incised wounds are concerned, according to the Doctor they are simple injuries, though, caused by sharp edged weapons and were not at all fatal to cause death of Ram Swaroop. So far as the other lacerated wounds are concerned, they have been found on the arms and legs of the deceased. Even if it may be found that the fracture of the ribs was also caused by the accused persons, admittedly, there are no external marks of injuries on the chest and the fracture of such ribs could only have been caused by the injuries inflicted on the arms of the deceased. Even if it may be found that the fracture of the ribs was also caused by the accused persons, admittedly, there are no external marks of injuries on the chest and the fracture of such ribs could only have been caused by the injuries inflicted on the arms of the deceased. From the statements of Kailash and Prahlad, the genesis of the incident cannot be discovered in a clear manner. They had no doubt seen the incident of beating. From their statement it cannot be established as to how and in what manner the beating had started. At the time when the FIR was lodged, Ram Swaroop was alive and the case was registered by the police only under Section, 307 IPC. If the accused persons had any intention to cause death, especially, when three of them were armed with sharp edged weapons and the remaining accused had blunt weapons like lathis and Ram Swaroop was an old man of 70 years, there was no question of his remaining alive at the time of the incident itself. Ram Swaroop succumbed to the injuries nearly twenty hours after and. we are not prepared to believe the prosecution case that the accused persons had an intention to cause death of Ram Swaroop. Looking to the nature of the injuries and the involvement of nearly six person in the crime, out of whom one Shriram has been acquitted by the trial Court, in our view, the act done hay the accused appellant can only be considered as done with the knowledge that the bodily injury inflicted on Ram Swaroop were likely to cause death. The case thus, in our opinion, falls under Part II of Section 304, IPC and not under Section 302, IPC as held by the trial Court. 16. We have been informed that each one of the appellant has remained in jail for about five years. They were arrested in July 1979 and were not granted bail till now. 17. In the result, we allow the appeals in part, set aside the conviction of the accused-appellants under Sections 302/149, IPC and, instead, convict them under Section 304-11 IPC read with Sec 149, IPC. They were arrested in July 1979 and were not granted bail till now. 17. In the result, we allow the appeals in part, set aside the conviction of the accused-appellants under Sections 302/149, IPC and, instead, convict them under Section 304-11 IPC read with Sec 149, IPC. So far as the sentence is concerned, the accused-appellants have already remained in jail for more than five years and, in our view, the ends of justice would meet if they are given the sentence of the period already undergone by them. So far as the conviction of the accused persons by the trial Court for the other offences is concerned, the same is maintained. Ali the sentences are to run concurrently and. as the other sentences are covered under the period already undergone by the accused persons, as such they are directed to be released forthwith if they are not required in any other case,Appeal Partly allowed. *******