JUDGMENT 1. - The appeal is directed against the judgment and order dated 7th December, 1983, passed by the learned Additional Sessions Judge, Deeg (Bharatpur), by which he convicted and sentenced the accused-appellants for an offence under Section 302, IPC and sentenced them to imprisonment for life. 2. Briefly stated the facts of the case are that a report was lodged at the Police Station, Pahadi, District Bharatpur on 10th December, 1981, at about 1.30 a.m. by one Sona Singh. In theirpart, it was alleged by him that Hukam Singh son of Sona Singh had a dispute with Rahim Khan and Atru over an agricultural field and they had a motive to kill,it was further alleged that in the evening at about 4-5 p.m. Rahim Khan, Atru, llii, Kallu, Mohar Khan, Sahabuddin, Nawabudin, Hajer, etc., armed with lathis, Farsi and Ballam came to the field of Hukam Singh and assaulted him to death. Jogendra Singh and Jwali Bai raised hue and cry on seeing the incident. Whereupon Harphool Singh, Sona Singh. Soorat Singh, & Pritam Singh reached there. It is alleged that the incident was witnessed by Jogendra Singh, Sona Singh, and Pritam Singh. On receipt of the complaint, a case under Sections 147, 148, 149, 307 and 302, IPC was registered. Autoposy on the dead body of Hukam Singh was conducted. The post-moretem report is Ex. P 20. In the opinion of the Doctor, the death was caused on account of multiple fracture of skull bone, syncope and coma due to injuries to brain. The prosecution after investigation submitted charge-sheet against as many as 8 persons and the accuseds were committed to the Court of Addl. Sessions Judge, Deeg. During the course of trial, accused Rahim Khan expired and thus, the case proceeded against the remaining seven accuseds. The prosecution examined 13 witnesses, out of whom, Jwali Bai, Jogendra Singh, Surat Singh and Sona Singh were examined as eye-witnesses, Dharam Singh and Pritam Singh were examined by the prosecution as the witnesses who reached the place of occurrence soon after the incident took place. It is alleged that they had seen the accused persons going from the place. The accused denied the charges and pleaded not guilty. In defence, two witnesses were examined to substantiate that they were in possessions of the field where the incident had taken place. It is alleged that they had seen the accused persons going from the place. The accused denied the charges and pleaded not guilty. In defence, two witnesses were examined to substantiate that they were in possessions of the field where the incident had taken place. The witnesses so examined by the defence are Jagdish Prasad and Sitab Khan. 3. The learned trial Court convicted accused Atru under Section 323, IPC for causing hurt to Jogendra Singh. Atru has not filed any appeal against his conviction. Accused Illi alias Illahi Bux and Mohan Khan were convicted for committing an offence under Section 302, IP The other remaining accuseds were acquitted of the charges levelled against them. 4. Shri Biri Singh, learned counsel for the accused-appellants, submitted that the First Information Report in this case is a substituted document, or at any rate, even if it is not correct, it is a balated one. The report was lodged after 91/2 hours of the incident. It was further submitted by Shri Biri Singh, learned counsel for the accused-appellants, that in the report no specific injuries have been attributed to the accused-appellants and that it being so, it was open for the complainant party to implicate whosoever they intend to do so at their convenience. The learned counsel for the accused-appellants also pointed out that the information was given to the police vide Ex. P 6 by PW 7 Sona Singh, who has been declared hostile. It was also pointed out that the eye-witnesses Herphool Singh has not been produced. The learned counsel also urged that the learned trial Court relied upon the testimony of Jwali Bai (PW 1) to support the case of the prosecution, but her testimony is not at all believable as her testimony is not corroborated by the medical evidence on record. It was also submitted that her testimony was not believable as she is the wife of the deceased and is, thus, highly interested witness in the success of the case. Further she has implicated as many as 8 accused and attributed specially that all participated in beating her husband. 5. The learned Public Prosecutor, on the other hand, supported the finding of guilt recorded by learned Addl. Sessions Judge. 6. We have given our thoughtful consideration to the respective submissions made by the learned counsel for the parties. Further she has implicated as many as 8 accused and attributed specially that all participated in beating her husband. 5. The learned Public Prosecutor, on the other hand, supported the finding of guilt recorded by learned Addl. Sessions Judge. 6. We have given our thoughtful consideration to the respective submissions made by the learned counsel for the parties. The learned trial Court after considering the evidence of PW 1 Jwali Bai, PW 2 Jogendra Singh, PW 4 Surat Singh, PW 7 Sona Singh, & PW 3 Dhara Singh recorded a finding that nobody out of the accused persons except Illi alias Illahi Bux and Mohan Khan could be held responsible for inflicting injuries on the person of the deceased, Hukam Singh. The learned trial Court also observed that except Mehar Khan, and Illi, other accused were having lathis with them and, it is alleged that they inflicted lathi blows on the deceased. Post-mortem report Ex. P 24 discloses, through the testimony of Dr. Pritam Singh (PW 11) that there were 10 injuries on the person of the deceased. It was also disclosed in the testimony of PW 11 Dr. Pritam Singh that injury No. 10 was caused by sharp weapon. Injury No. 10 was fatal. PW 11 Dr. Pritam Singh had stated that the injuries were ante-mortem. Injuries No. 1, 2, 9 and 10 were fatal. The learned trial Court also observed that there was only one injury by lathi blow and that was inflicted on the ear and there was no evidence as to who inflicted that injury. In this view of the matter, accused Atru, Sahabhuddin, Kalu, and Fajar were acquitted. As regards the injuries inflicted by Mohar Singh and Illi alias Illahi Bux, the learned trial Court pointed out that it is fully established that Mohar Singh caused an injury by farsa on the head of the deceased, Hukam Singh, and Illi caused an injury by ballam. Jwali Bai and Jogendra Singh have clearly deposed that Mohar Khan had farsi, and Illi a ballam and both inflicted the aforesaid injuries. The injuries are fully proved by the testimony of Dr. Pritam Chand. From the evidence of Dr. Pritam Chand, it is proved that injury No. 2 was caused by ballam and injury No. 9 was caused by the blunt side of the farsa. The injuries are fully proved by the testimony of Dr. Pritam Chand. From the evidence of Dr. Pritam Chand, it is proved that injury No. 2 was caused by ballam and injury No. 9 was caused by the blunt side of the farsa. After considering the entire evidence we are of the opinion that the finding recorded by the learned trial Court is perfectly justified. 7. Shri Biri Singh, learned counsel for the accused-appellants, submitted that it is a case of causing single injury without any pre- meditation or pre-planning. The incident which took place at the spur of moment and that too on the field of the deceased. It is, thus, submitted that no case is made out against the accused-appellant under Section 302, IPC. Shri Biri Singh referred to a number of authorities of this Court as well as that of the Hon'ble Supreme Court to substantiate that in the facts and circumstances of the case the offence is not proved to be one under Section 300, IPC and, as such, the accused persons were wrongly convicted under Section 302, IPC. It was submitted by the learned counsel for the accused-appellant that the offence, even if made out, is under Section 304-II, IPC and it does not travel beyond it. The learned counsel placed reliance on the following cases:- (1) Munshi v. The State of Rajasthan, 1981 Cr. L.R. (Raj)503 . (2) Suba Singh v. State of Punjab, 1933 SCC (Cri) 8 (3) Bbanwar Lal v. The State of Rajasthan, 1985 RCC 452 (4) Moti Ram v. State of Rajasthan, 1985 Cr. LR (Raj) 529 (5) Chheju v. The State of Rajasthan, 1985 Cr. LR (Raj) 529 (6) Adiya v. State of Rajasthan, 1985 Cr. LR (Raj) 602 . (7) Mallu Ram & Anr. v. State of Rajasthan, 1985 Cr. LR (Raj) 612 (8) Mangiya v. The State of Rajasthan, 1985 RCC 410 (9) Dana Ram v. State of Rajasthan, 1986 RLR 476 (10) Mohinder Singh and Others v. State of Delhi, AIR 1976 SC 1906 (11) Molu & Ors. v. State of Haryana, AIR 1976 SC 2499 (12) Jagrup Singh v. State of Haryana, 1981 SCC (Cr) 768 8. LR (Raj) 612 (8) Mangiya v. The State of Rajasthan, 1985 RCC 410 (9) Dana Ram v. State of Rajasthan, 1986 RLR 476 (10) Mohinder Singh and Others v. State of Delhi, AIR 1976 SC 1906 (11) Molu & Ors. v. State of Haryana, AIR 1976 SC 2499 (12) Jagrup Singh v. State of Haryana, 1981 SCC (Cr) 768 8. The gist of the above cases is that when the incident took place at the spur of moment on a trivial matter, and, if an injury is caused without any pre-meditation or pre-planning, in which the injury is proved fatal, the accused cannot be imputed with an intention to cause such bodily injury which may be likely to cause death. In the instant case, we are of the opinion that there is nothing to show that the accused intended to cause deliberate murder of Hukam Singh. There is nothing on the record to prove that there was any pre-designed plan or pre-meditation to commit his murder. The case does not fall within the first four clauses of Section 300, IPC. The circumstances do not tell that there was common intention of the accused-appellants to cause the death of Hukam Singh. However, from their act it can be said that they have inflicted the injuries with the knowledge on their part that they were likely to cause death and, as such, an offence under Section 304-II, IPC is clearly made out against the accused-appellants. 9. The accused-appellants are in jail from the date of their arrest. They were arrested just after the occurrence and since then they are in jail. Thus, they have remained in custody for near about five years. 10. In the result, the appeal of the accused-appellants Illi alias lllahi Bux and Moher Khan is partly allowed. Their conviction under Section 302, IPC and the sentence awarded thereunder are set aside; instead they are convicted under Section 394-II, IPC and each of them is sentenced to the imprisonment already undergone by them. The accused-appellants may be set at liberty, if not required in any other case.Appeal partly allowed. *******