JUDGMENT 1. This appeal by Mangi Lal and Ram Chandra is directed against the judment of learned Additional Sessions Judge No. 2, Baran rendered in Sessions case No. 308/90, whereby the learned Additional Sessions Judge has held guilty the appellant Mangi Lal Under section 302 Indian Penal Code and Ram Chandra Under section 302/34 IPC. Mangi Lal has been sentenced to undergo life imprisonment and a fine of र 100/- and in default of payment of fine, further rigorous imprisonment for one month and Ram Chandra has been sentenced to life imprisonment and he has been ordered to pay a fine of र 100/- and in default of payment of fine, he has been sentenced to one month's rigorous imprisonment. Being aggrieved, Mangi Lal and Ram Chandra have filed this appeal. 2. Briefly stated the prosecution story is that on 14.6.90 at about 12.00 in noon Morpal PW. 3 was fetching water from the public tap in the village Chainpuriya. At that time, Revadiya son of accused appellant Mangi Lal also came there and wanted to drink water and requested Morpal to remove his Matka. But Morpal did not oblige him. Upon this, there was a scuffle in between Morpal and Revadiya. It is alleged that when Morpal and Revadiya were engaged in a scuffle, the deceased Ram Karan went to them. Nearby the accused-appellant Mangi Lal and Ram Chandra were busy in constructing their house. They also rushed to the spot. Both of them were armed with Dandas. It is alleged that Mangi Lal and Ram Chandra shouted that Ramkaran was going to kill Revadiya and therefore he may be killed. Saying so, Mangi Lal dealt a danda blow on the head of Ramkaran on the right side, while Ram Chandra dealt a danda blow on the left side of the head of Ramkaran. As a result of this, Ramkaran fell down to the ground and thereafter Mangi Lal and Ram Chandra, each of them, dealt one danda blow on the left foot of Ramkaran. Ramkaran became unconscious. This incident was witnessed by PW.1. Kastura who had just returned from the tap and was sitting nearby his house, as also by Kishan Lal PW.4. 3. Ramkaran became unconscious. This incident was witnessed by PW.1. Kastura who had just returned from the tap and was sitting nearby his house, as also by Kishan Lal PW.4. 3. The prosecution story is that a report of the incident was lodged the same day with Polic Station Siswali at 3.20 pm, whereupon a case Under sections 307, 323 with 34 Indian Penal Code was registered and investigation was commenced. Injured Ramkaran was taken to Government Hospital, Anta where some treatment appears to have been given to him. Eventually, Ramkaran succumbed to his injuries and PW. 16 Dr. Kishan Kumar Gupta conducted inquest on the dead body. Dr. Kishan Kumar Gupta found following external injuries on the person of Ramkaran : 1. Haematoma 2"x2" over the scalp on the side of parietal bone; 2. Abraison -1"x1" on the left knee; 3. Abraison - 1"x1" on the left knee. Upon opening the body, the Doctor found that there were blood clots beneath both the parietal bones and the brain membrances were ruptured and there was fracture of right parietal and right temporal bones as also fracture of anterior fossa. 4. The post-mortem report Ex. P.10 was prepared in this regard and cause of death was opined to be cerebral hemorrhage. In the ordinary course of nature, the injury No.1 was found sufficient to cause death. 5. Prior to the post-mortem examination, a Panchayatnama was prepared (Ex. P.2) The S.H.O. also inspected the site and site plan (Ex.P.13) was prepared. Both the appellants were arrested on 18.6.90 and memos Ex. P.14 and Ex. P. 15 were prepared in this regard. It appears that both the appellants volunteered information in respect of a danda each to the Investigating Officer and got recovered a danda each vide memos Ex. P.7 and Ex. P.8 which were duly sealed. The clothes of the deceased were also taken into possession and were duly sealed. Articles so sealed were duly sent to Forensic Science Laboratory, Rajasthan, Nehru Nagar, Jaipur. A report in respect of examination was received vide Ex. P. 16. After due investigation, both the accused-persons were challaned before special Judicial Magistrate, Ist Class (Mobile), Baran, who committed both of them to the court of Sessions for trial. 6. Learned Sessions Judge framed due charges against both the accused-persons Under section 302 Indian Penal Code and alternatively Under section 302/34 IPC. P. 16. After due investigation, both the accused-persons were challaned before special Judicial Magistrate, Ist Class (Mobile), Baran, who committed both of them to the court of Sessions for trial. 6. Learned Sessions Judge framed due charges against both the accused-persons Under section 302 Indian Penal Code and alternatively Under section 302/34 IPC. The accused-persons denied the charges and claimed trial. At the trial, Pw. 1 Kastura, Pw. Sahab Lal, Pw. 3 Morpal, Pw. 4 Kishan Lal, Pw. 5 Bherulal, Pw. 6 Nand Kishore, Pw. 7 Chhitar Lai, Pw. 8 Shyam Manohar, pw. 9 Bhanwar Lai, Pw. 10 Shyam Lal Tyagi, Pw. 11 Om Prakash, Pw. 12 Rameshwar, Pw. 13 Laxmi Narayan, Pw. 14 Babu Lal, Pw. 15 Murari Lal, Pw. 16 Dr. Kishan Kumar Gupta and Pw. 17 Shri Ram Kalyan were examined. Both the accused-appellants in their statements recorded under section 313 Cr. P.C. denied their complicity in the crime and stated that they had been falsely implicated in this case. Dw. 1 Gopi Lal was examined in support of the averment that Mangi Lal and Ram Chandra were living separatley. 7. Learned District and Sessions Judge after hearing both the sides arrived at the conclusion that Ramkaran died in consequence of fatal assault made on his person. He was of the view that from the testimony of Sahab Lal and Morpal it had been established that both the accused-appellants had- caused various injuries found on the body of Ramkaran by Dr. K.K. Gupta and he had died due to said injuries. He consequently found the accused-persons guilty as stated above and sentenced tram as stated above. 8. In the present appeal, learned counsel for the appellants submits that Kastura Pw. 1 alone is an independent eye witness of the alleged incident. Sahab Lal and Morpal are sons of deceased Ramkaran. Pw. 4 Kishan Lal is another alleged eye witness of the occurrence. The evidence of these witnesses is contradictory and discrepant and does not inspire confidence. According to Kasture and Kishan Lal it was Mangi Lal who alone had caused injuries to Ramkarn deceased. Both these witnesses do not state in examination in chief that Ram Chandra had caused any injury to the deceased. It is also submitted that interested testimony of Sahab Lal and Morpal is not corroborated by medical evidence at all. According to Kasture and Kishan Lal it was Mangi Lal who alone had caused injuries to Ramkarn deceased. Both these witnesses do not state in examination in chief that Ram Chandra had caused any injury to the deceased. It is also submitted that interested testimony of Sahab Lal and Morpal is not corroborated by medical evidence at all. The two sons of Ramkaran have indulged in over implication and have falsely implicated Ram Chandra in their statements which is not corroborated by medical evidence as also by testimony of independent witnesses and, therefore, Ram Chandra deserves to be acquitted. His presence on spot was natural as both the accused- persons were constructing their house nearby and they reached the place of occurrence when a scuffle had taken place between Morpal and Revariya. Hence only on the basis of presence of Ram Chandra, he could not have been convicted under section 302/34 Indian Penal Code and he deserved to be acquitted. 9. As regards Mangi Lal is concerned, it is contended that he gave only a single blow on the head of deceased. Of course, the witnesses have tried to show that injuries on the knew were also caused by Mangi Lal and Ram Chandra. But medical evidence on this aspect does not support this version and Dr.K.K. Gupta has specifically admitted in his corss-examination that injuries Nos. 2 and 3 could be caused due to-deceased falling down after he was assaulted. It is submitted that even according to the prosecution case Ramkaran had fallen down after receiving injury on the head, therefore, it cannot be said that Mangi Lal acted in a cruel manner or had an intention to commit murder of Ramkaran. The incident had taken place on the spur of moment without any pre-meditation and therefore his case does not travel beyond the scop of Section 304 part 11 of IPC. Therefore, his conviction and sentence should be modified suitably. 10. Learned Public Prosecutor has opposed the appeal and has submitted that there is no good ground for interfering with the findings recorded by the learned Sessions Judge, and the appeal should be dismissed. 11. We have given our earnest consideration to the arguments advanced before us and have also perused the record. 10. Learned Public Prosecutor has opposed the appeal and has submitted that there is no good ground for interfering with the findings recorded by the learned Sessions Judge, and the appeal should be dismissed. 11. We have given our earnest consideration to the arguments advanced before us and have also perused the record. We have no hesitation in arriving at the conclusion that an incident had taken place on 14.6.90 at about 12.00 noon at village Chainpuriya and in the said incident, Ramkaran received one injury on the head and also two injuries on the left knee. 12. There is also no doubt that Ramkaran died due to injury caused on his head which resulted in fractures of the scalp bones mentioned in the post mortem report and referred to earlier. There is also no doubt that injury No.1 was sufficient to cause death in the ordinary course of nature. 13. However, the first question is whether appellant Ram Chandra at all participated in this incidents as alleged. Pw. 1 Kaswtura is an independent witness and he has categorically stated that Ram Chandra was of course standing with a danda in his hand, but Ram Chandra did not do anything. To the same effect is the testimony of Pw. 4 Kishan Lal who also appears to be an independent witness. Though, in cross examination he did try to add that Ram Chandra had also assaulted Ramkaran. He, however, does not specify the nature of assault, made by Ram Chandra on Ramkaran. 14. We may state that Dr. K.K. Gupta found only one external injury on the scalp of the deceased which resulted in two fractures. He do not find any other external injury on the head of the deceased. Pw. 2 Sahab Lal and Morpal are highly interested witnesses, being sons of the deceased. Both of them have stated that Mangi Lal dealt one blow on the right temple of Ramkaran while Ram Chandra dealt another blow on the temple of Ramkaran. Their statements are not supported by the statement of Dr. K.K. Gupta, who does not speak of any another injury on the temple of deceased. Therefore, these witnesses are not reliable and their testimony does not inspire any confidence. Their statements are not supported by the statement of Dr. K.K. Gupta, who does not speak of any another injury on the temple of deceased. Therefore, these witnesses are not reliable and their testimony does not inspire any confidence. On a conspectus of the entire evidence, we are of the view that Ram Chandra has been falsely implicated in this case and it does not appear that he had at all participated in the assault made on the deceased Ramkaran. 15. Learned Sessions Judge has convicted Ram Chandra with the aid of section 34 Indian Penal Code, but it is to be rememberd that the presence of Ram Chandra on the spot was only natural. Pw. 1 Kastura has categorically stated that Ram Chandra had not participated in the assault at all. When, it is so, he could not have been convicted of offence under section 302 Indian Penal Code even with the aid of section 34 IPC. Moreso, when the incident was not a pre-meditated one and had taken place on the spur of the moment. 16. However, from the independent evidence on record, it has been established beyond reasonable doubt that Mangi Lal had given a danda blow on the head of Ramkaran. This testimony is corroborated by the medical evidence. This is true that two injuries were received by the deceased on his knee also but as already stated Kastura does not state that Mangi Lal had given any blow on the knee of Ramkaran after he had fallen down. Kishan Lal Pw. 4 has of course, tried to say so in cross-examination and Morpal and Sahab Lal have also stated about injuries on the knee but in the facts of the case, particularly keeping in view the admission of Dr. K.K. Gupta, it is quite likely that the injuries on the knee may have received after Ramkaran had fallen down on the ground and due to such a fall. 17. Admittedly, there was no previous enmity which may have led Mangi Lal to assault the deceased. The incident took place on the spur of moment because Morpal and Revariya had engaged in a scuffle, all of a sudden, on the question of drinking water from the tap. 17. Admittedly, there was no previous enmity which may have led Mangi Lal to assault the deceased. The incident took place on the spur of moment because Morpal and Revariya had engaged in a scuffle, all of a sudden, on the question of drinking water from the tap. In Itese circumstances, it is difficult to say that Mangi Lal had intended to cause death of the deceased or know that his act would cause the death of Ramkaran. In such circumstances, we are of the opinion that the act of the appellant Mangi Lal does not travel beyond section 304 part II, Indian Penal Code. 18. No other point has been urged by the learned counsel for the parties before us. 19. In the facts and circumstances of the case, we accept the appeal of Ram Chandra and he is acquitted of offence Under section 302/34 IPC. The sentence passed against him is also set-aside. He is on bail, his bail bonds are cancelled. He need not surrender to his bonds. 20. So far as Mangi Lal is concerned, his conviction under section 302 Indian Penal Code is altered to one under section 304, part II IPC. He is acquitted of the charge under section 302 IPC. In the facts and circumstances of the case, the ends of justice would be met if his sentence is reduced from life imprisonment to rigorous imprisonment for five years, and a fine of र 100/-, in default, he will further undergo one month's rigorous imprisonment.The appeal is disposed of as indicated above. Appeal disposed of. *******