JUDGMENT 1. All the five accused-appellants, namely, Rajia, Uda Ram, Ram Kumar, Chatru and Jeevan have filed this appeal challenging their conviction and sentence passed against each of them by Sessions Judge, Jhunjhunu, on 13th July, 1989 for offence under Section 302 read with Section 149 IPC, 147, 452 and 323 read with Section 149 IPC. They have been sentenced as under: 1. U/s. 302/149 IPC Life imprisonment and a fine of Rs. 500/- each. 2. U/s 147 IPC One year's R I. and a fine of Rs. 200/- each in default thereof to further undergo two months R.I. 3. U/s 452 IPC Two years' R.I. and a fine of Rs. 400/- each, in default thereof to further undergo three months' R I. 5. U/s 323/149 IPC Three months' R.I. and a fine of Rs. 100/- each, in default thereof to undergo further rigorous imprisonment for one month. Brief facts giving rise to this appeal are that a FIR. Ex. P 1 was lodged by Mst. Manbhari, PW 3, wife of the deceased Bhagirath wherein it was alleged by her that she is a resident of Mukandgarh. Her sister-in-law (Nanad) Prabhati's daughter's marriage took place on 5th July, 1987. Her husband, his elder brother Keshar Dev, Uda Ram, Chatru, Ram Kumar and Jeevan had gone to attend the marriage. At 5.00 p.m. they returned home. Her husband was accompanied with certain persons which was not liked by her brother-in-laws and they abused those persons, as a result of which there was certain altercation. They were separated at about 10 00 p.m. All the persons accompanied with Rajia son of Keshar, Nathu wife Keshar, Tijudi wife of Uda, Prabhati wife of Jeevan and Chotudi wife of Ramkumar all came to her residence and again started abusing. When each objected to it Uda gave a Lathi blow on her followed by another lathi blow by Jeevan. At that time her husband who was taking meals came to her rescue. He lifted a bamboo and tried to save her on which all of them attacked him. His bamboo stick with him fell on the ground and he became unarmed so he ran out of the house to save himself and entered the house of Surja where he caught hold of the feets of Gyarsi wife of Keshar, but these people belaboured him, as as a result of which he died. His bamboo stick with him fell on the ground and he became unarmed so he ran out of the house to save himself and entered the house of Surja where he caught hold of the feets of Gyarsi wife of Keshar, but these people belaboured him, as as a result of which he died. She and her son Narottam had brought the deadbody to their residence. This report was lodged on 6th July, 1985 at 7.00 a.m. at police station Nawalgarh on which a case for offence under Sections 302, 147, 148, 149, 452 and 323 IPC were registered against all the ten accused named therein and the case was investigated. During the course of investigation the police found that the incident initially started at the residence of Mst. Manbhari, thereafter at the residence of Hanuman and final assault was made on the deceased at the residence of Mst. Gyarasi, but the entire incident is in one sequence. In the post-mortem examination which was got conducted by Medical Officer, Incharge Government Hospital, Mukandgarh on 6-7-1987 at 11.45 p.m. Doctor found the following injuries on the person of the deceased : 1. Bruises 4 cm x 1 cm over right scapular region. Simple by blunt weapon. 2. Bruises 5 cm x 1 cm over left scapular region. 3. Abrasion 3 cm x 1 cm over 9th & 10th ribs, right side in the mid axillary line. Simple by blunt weapon. 4. Bruise 2 cm x 1 cm over tip of left shoulder joint. Simple by blunt object. 5. Abrasion of left leg 3 cm x 1 cm. Simple by blunt object. 6. Lacerated wound 4 cm x 2 cm x bone deep on right parietal region. Simple by blunt object. 7. Lacerated wound 3 cm x 2 cm x bone deep over occipital region. Simple by blunt object. 8. Lacerated wound 3 cm x 2 cm x bone deep over left parietal region. Simple by blunt object. 9. Fracture of right temporal bone Fatal by blunt object. 10. Fracture of left temporal bone Fatal by blunt object. 11. Fracture of occipital bone Fatal by blunt object 12. Fracture of frontal bone Fatal by blunt object. He gave out the cause of death due to coma resulting from fracture of skull bones. Simple by blunt object. 9. Fracture of right temporal bone Fatal by blunt object. 10. Fracture of left temporal bone Fatal by blunt object. 11. Fracture of occipital bone Fatal by blunt object 12. Fracture of frontal bone Fatal by blunt object. He gave out the cause of death due to coma resulting from fracture of skull bones. After completion of investigation the charge-sheet was submitted in the court of Munsiff and Judicial Magistrate, Nawalgarb who committed the accused to Sessions where the prosecution examined 12 witnesses in support of its case. The accused took the defence of denial and did not lead any evidence. The trial court convicted and sentenced the accused-appellants as indicated above aggrieved by which this appeal has been preferred. 2. It may be observed here that the learned trial court relied upon the statements of Mst. Manbhari PW 3 & Narottam PW 11. Mst. Manbhari is the first informant and besides this at her residence the beating started. He also relied on the statement of Hanuman PW 1 at whose place the deceased found shelter when he ran from the house of Manbhari. He also relied on the statements of Palaram PW 2, Phoolchand PW 5, Lalchand PW 12 and Gyarsi PW 4 at whose place the third time beating is alleged to have been given to the deceased. He also believed the story put forward at trial that incident started because Bhagirath had given Rs. 2500/- to his sister in Bhat, while the other four brothers who are accused in the case collectively gave only Rs. 1100/-. 3. It is contended by the learned counsel for the accused-appellants that the witnesses are not worthy of any reliance because they all come from the same family. It is submitted that the deceased Bhagirath had five other brothers, four of whom have been arrayed as accused in this case and the fifth's son is also made an accused. Besides this when the report was lodged even women folk was not spared and that shows as to how the wife of deceased and her son intended to wreck vengeance against the other brothers and she could conveniently find three sons and the widow of Keshar Dev who incidentally had two wives. Thus all the six eye witnesses produced in this case belong to the same family and Hanuman is a close friend of deceased Bhagirath. Thus all the six eye witnesses produced in this case belong to the same family and Hanuman is a close friend of deceased Bhagirath. In this view of the matter, it is submitted that there is no independent witness in the case and all the witnesses are highly interested witnesses It is further submitted that genesis of the prosecution story has not been brought forward and the story which had been put at the trial by Manbhari has not been given in the FIR. The story given by Hanuman about giving Rs. 1100/- by all the four accused as against Rs. 2100/- by Bhagirath does not find place in the FIR. Besides this, it is stated that even Manbhari PW 3 in her statement has not stated the same. It is submitted that it appears from the perusal of the statements of the witnesses that Hanuman was the bone of dispute between the parties. Bhagirath had gone alongwith him to his sister's place which was not liked by other brothers of the deceased and it is because of him that the entire incident had taken place. Therefore the genesis of the prosecution story given by him has to be taken with a pinch of salt. It is submitted that none of the accused was armed with any deadly weapon and there was no such background which could give even the least suspicion that any or all of the accused had bore any ill will against the deceased much less animosity to the extent of causing his death. It is then submitted that even if the entire prosecution story is accepted, then testing its varacity on the basis of injuries sustained, it is clear that highly exaggerated version has been given and by no stretch of imagination it can be said that the offence under Section 302 IPC at all is made out. It is submitted that at best under the circumstances of the case would not travel beyond Section 325 read with Section 149 IPC. 4. It is submitted that at best under the circumstances of the case would not travel beyond Section 325 read with Section 149 IPC. 4. On behalf of the State it is submitted that the accused-appellants had gone to the residence of the deceased Bhagirath at an odd time at 10.00 p.m. duly armed with lathies and chased him to the residence of Hanuman and Gyarsi where he had gone for shelter clearly indicates that they wanted to kill the deceased and they only went back after putting his life to an end. It is submitted that no other witness could be possible at 10.00 p.m. at the residence of either Manbhari, Hanuman or Keshar Dev. The presence of the witnesses is very natural and then they have been ; subjected to severe cross examination but remained unshaken. In this view of the matter it is submitted that the prosecution has fully succeeded in establishing its case beyond any manner of reasonable doubt and the appeal should be dismissed. 5. We have given our thoughtful consideration to the rival sub- missions and have perused the entire record. 6. At the out-set we may mention here that in this case according to the prosecution' own story the incident can be divided into five parts. The first is about the previous happening when deceased Bhagirath and his brothers had gone in sister's daughter's marriage. The second aspect is about the accused persons going to lodge a protest at the residence of Bhagirath where after the accused returned home. In the third sequence they all went together accompanied with Rajia at 10.00 p.m. and then gave beating to deceased Bhagirath. The third incident is when the deceased was taking meals and his wife had altercation with the accused persons who took law in their own hands and started beating her. Thereafter the incident took place at Hanuman's house and lastly in Gyarsi's house. Regarding the genesis of the story there are only two witnesses and they are Hanuman and Manbhari. According to Hanuman he had accompanied the deceased to village Kisari and his going there was not liked by other members of the family of Bhagirath. According to his own statement he and the other accused persons and the deceased are relations as cousins. According to Hanuman he had accompanied the deceased to village Kisari and his going there was not liked by other members of the family of Bhagirath. According to his own statement he and the other accused persons and the deceased are relations as cousins. He stated that 1 all the brothers started abusing Bhagirath in village Kisari only and cursed 1 him as to why he has brough Hanuman with him. He stated that Bhagirath alone had given Rs. 2100/-, while collective amount given by the other five brothers was Rs. 1100/-. Even after they returned to village Mukandgarh Bhagirath and his wife Manbhari were abused by these J persons and went home after abuses were hurled. It is thereafter that they again came at 10.00 armed with lathies and started using filthy language which was objected to by Manbhari which resulted in the incident. PW3 I Manbhari has stated that her husband had gone to Kisari village for performing the Bhat ceremony and so Uda, Jeevan, Ram Kumar, Chatru and Raju had also gone. Same day when they returned at 3.00 p.m. to Mukandgarh all the five accused went to his residence and gave beating to him by lathies. She has stated that she had sustained injuries and her husband came to her rescue. Thereafter he went to the residence of Hanuman and thereafter to the residence of Gyarsi. She has not given the story of Rs. 2100/-given by her husband and Rs. 1100/- given by the remaining five brothers. She however, corroborates the story of PW 1 to the extent that on the previous day there was a function at the residence of Bhagirath's sister Prabhati Her statement is further corroborated to the extent that all the five brothers had protested as to why they had taken stranger with them. A careful perusal of the statements of these two witnesses leads us to believe the story to the extent that Hanuman who might have been related to this family was not liked by the five brothers and their families, while he was very close to the deceased Bhagirath. It may be that he might have been boastful of his own friend and might have unnecessary taken airs which was felt insulting to the other brothers of Bhagirath. It may be that he might have been boastful of his own friend and might have unnecessary taken airs which was felt insulting to the other brothers of Bhagirath. It is very natural that if the elder member of the family while performing some family rituals would be collectively discharging their obligations and one of them at the instance of the third party comes out and behaves in a manner which may be considered as showdown then such aggrieved persons are bound to protest. It therefore appears to us that the story of the prosecution is reliable to the extent that the five brothers and the nephew Rajia when returned from village Kisari and reached Mukandgarh they had gone to the residence of the deceased Bhagirath. We have also no doubt after going through the statements of the witnesses that the incident did take place wherein the deceased sustained injuries and besides the deceased, Manbhari also sustained injuries which were four in number though by blunt objects. Dr. Bhagwan Singh Shekhawat examined the injuries of Manbhari and proved his report Ex.P. 10 according to which she sustained the following injuries : 1. Lacerated wound 11/4 x 1/4 x 1/4 cm over right parietal region of scalp in middle. Simple by blunt object. 2. Lacerated wound 21/2 x 1/2 x 1/2 cm over left parietal region of scalp in middle. Simple by blunt object. 3. Contusion 7 x 2 cm over lateral side of left arm in its middle ⅓. Simple by blunt object. 4. Contusion 2 x 2 cm over tip of left shoulder. Simple by blunt object. Her injuries indicate that she has also received injuries in the same ran-saction in which deceased Bhagirath lost his life. 7. The second incident at the place of Hanuman could not have been seen by Manbhari, but at the same time looking to her evidence we inclined to believe that the entire incident took place in such a short span but at three different places and the inmates of the three houses could alone describe the incident which took place in their respective places. Hanuman PW 1 himself has admitted that he had gone to the house of Bhagirath that night but had seen the incident from his own residence. Hanuman PW 1 himself has admitted that he had gone to the house of Bhagirath that night but had seen the incident from his own residence. This story of Hanuman is not worthy of acceptance as a whole because he had compound wall 4 feet in height around his house and it could not have been possible for him to have seen as to what is happening inside the house of Bhagirath, Ex.P.11 is the injury report of Hanumanram which too discloses four simple injuries by blunt object on his person. Thus his presence at least at one of the places cannot be disputed and he is to be relied upon to the extent of the presence of the accused and that they were in pursuit on deceased to inflict injuries on his person. For the last incident is the statement of Mst. Gyarsi and her three sons. Mst. Gyarsi is admittedly second wife of Kesar Dev and she along with her all the three sons has deposed against her own son, which of course, is not from her womb and from the first wife of Kesar Dev. According to her statement and her sons' statements the deceased was given mercilessly beating at her residence. Infact the witnesses have given expression that he had been beaten as if the accused were thrashing Bajra. This place has been used by the four witnesses who have given the description about the residence of Gyarsi, though the same does not find corroboration from the medical evidence to that extent as the deceased had three lacerated wounds and rest five were either bruises or abrasions. 8. We are not going into the details of the case as to how much injuries were inflicted at which particular place and in what sequence and which of the accused had inflicted. In a case like the one when there are involvement of the family members alone and incident starts on the trivial matters involving the age of the parties, the tempers mount high and, therefore, exaggerations of the stories are bound to be there. Thus, at such time it is very difficult to scan the evidence from such a point of view so as to exclude or include the main accused persons as is evident in this case. Thus, at such time it is very difficult to scan the evidence from such a point of view so as to exclude or include the main accused persons as is evident in this case. It had already been seen in this case even by the police as no charge sheet was filed against the women folk of the family. What we find from the evidence on record is that in this case Bhagirath, his wife and son and Hanuman were on one side and rest of the family on another who later on came to be supported by the second wife of Kesar Dev, i.e., Gyarsi and her sons Phool Chand, Lalchand and Dalaram. These persons conveniently left out Kesar Dev who happened to be the husband of Gyarsi but did implicate Kesar Dev's another son who is from the first wife Nathi. Thus, there appears to be two divisions in the family and they intermixed the story in the manner that it becomes difficult for the court to fasten individual liability of murder on anyone and, therefore, this case is required to be decided on the broader aspects, more particularly from the point of view of the offence committed. We are inclined to believe the prosecution story that after the brothers returned from Kaseri to Mukandgarh there were altercations between Bhagirath on one side and rest of his brothers on another wherein Manbhari also took a leading role resulting in the accused persons taking up the arms. According to her own statement Bhagirath had also picked up the lathi. However, he was ultimately disarmed. Thus, it appears that very small dispute involving ego is said to have taken place between the parties, the other brothers intended to chastise Bhagirath for his action of rating them down in another village where they had to perform the Bhat rites in Prabhati's daughter's marriage. Some of the members of the family in this process aimed lathies on the head of the deceased, as a result of which he died. But there is no strong evidence to convince us that the accused must have gathered there with a common intention to commit murder of Bhagirath. Some of the members of the family in this process aimed lathies on the head of the deceased, as a result of which he died. But there is no strong evidence to convince us that the accused must have gathered there with a common intention to commit murder of Bhagirath. In that process of beating if any or some of the accused wielded lathi on the head of the deceased as a result of which the latter died and that individual or some one could not be identified, then the safer course for the court is to hold that they at least shared the common intention to an extent that the accused had the knowledge that it could result in death of the deceased Bhagirath. 9. We are clearly of the opinion that in this case a quarrel too place between the accused persons on one side and the deceased, his wife and Hanuman on the other, but there was no intention on the part of t accused to inflict any such injury on the person of the deceased with an tention or idea in their mind that he could be killed. However, there is also do escape from coming to the conclusion that the appellants should have the knowledge that use of lathies on the head was likely to cause death. The circumstances of this case are not different than the one which was before their Lordships of the Supreme Court in Kundan Singh v. Delhi Administration AIR 1975 SC 1434 which had been followed in series of cases subsequently where their Lordships have said, that, when it is not known as to which accused caused the injury on the head it cannot be held that all the accused were liable for this injury unless there are common intention to cause such injury as may cause death. If the court on this aspect of the matter has any reason of doubt it is safer to hold the accused guilty of the offence under Section 304 Part II IPC. Thus, we are of the opinion that in this case the conviction of the accused-appellants under Section 302 read with Section 149 IPC is required to be set aside and instead they should be convicted for offence under Section 304 Part II read with Section 149 IPC. 10. Now remains the question of sentence. Thus, we are of the opinion that in this case the conviction of the accused-appellants under Section 302 read with Section 149 IPC is required to be set aside and instead they should be convicted for offence under Section 304 Part II read with Section 149 IPC. 10. Now remains the question of sentence. In view of the fact that we are holding the accused guilty under Section 304 Part II read with Section 149 IPC it appears to be reasonable to reduce substantive sentence of imprisonment of accused appellants Udaram, Ram Kumar, Chatru and Jeevan to the period they have already undergone which is approximately five years. However, social justice demands that the wife and children of the deceased should be adequately compensated by increasing the fine. Each of the accused has been sentenced to pay a fine of Rs. 500/- under Section 302 read with Section 149 IPC, Rs. 200/- under Section 147, Rs. 400/- under Section 452 IPC and Rs. 100/- under Section 323/149 IPC. Thus, each of the accused has been sentenced to pay a fine of Rs. 1200/- each which amount be increased to Rs. 3000/- each by increasing the fine for offence under Section 304 Part II read with Sec 149 IPC to Rs. 3000/-each which on recovery shall be paid to Manbhari and her children. 11. The result of the aforesaid discussions is that this appeal is partly allowed. Conviction of all the accused-appellants, namely, Udaram, Ram Kumar, Chatru, Jeevan and Rajia for offence under Section 302 read with Section 149 IPC is set aside and instead they are convicted for offence under Section 304 Part II IPC read with Section 149 IPC. Their convictions for offences under Sections 147, 452 and 323 read with Section 149 IPC are maintained. 12. Regarding sentence, the substantive sentence of imprisonment of accused Uda Ram, Ram Kumar, Chatru and Jeevan for offence under Section 302 read with Section 149 IPC is reduced to the period already undergone. Their substantive sentence of imprisonment for the other offences is also reduced to the period they have already undergone. In lieu of reduction of substantive sentence, keeping in mind the social justice that the widow of the deceased Bhagirath must get at least nominal compensation, we deem it proper to impose a consolidated amount of fine of Rs. 3000/- on each of the aforesaid four accused-appellants. In lieu of reduction of substantive sentence, keeping in mind the social justice that the widow of the deceased Bhagirath must get at least nominal compensation, we deem it proper to impose a consolidated amount of fine of Rs. 3000/- on each of the aforesaid four accused-appellants. Thus, the fine of Rs. 12000/- so realised shall be paid to Smt. Manbhari wife of the deceased Bhagirath. Six months' time is granted to the accused-appellants to deposit the fine. If the same is not deposited, it will be open to the court to realise the same as fine in accordance with law and ensure the payment of the money to Mst. Manbhari. The accused-appellants Uda Ram, Ram Kumar, Chatru and Jeeven are m Jail, they shall be released forthwith if not required in any other case. 13. Regarding the accused-appellant Rajia, he was about 16 years of age at the time of commission of the offence and at the time of conviction also he was not more than 18 years. In view of the fact that his conviction for offence under S. 302 read with Section 149 IPC has been altered to Section 304 Part II read with Section 149 IPC, we deem it proper to grant him the benefit of Section 6 of the Probation of Offenders Act. Thus, looking to the age, his conduct and the facts and circumstances of the case instead of sentencing him we direct that he shall be released on his executing a personal bond in the sum of Rs. 2000/- with one surity in the like amount to the satisfaction of the trial court for keeping peace and be of good behaviour for a period of two years. He is granted three months' time to execute the bonds. He is on bail, his bail bonds shall stand cancelled after his executing the fresh bonds as indicated above.Appeal partly allowed. *******