JUDGMENT 1. - This appeal is directed against the judgment dated 19.3.94, passed by the Additional Sessions Judge, Bhilwara, by which the learned Additional Sessions Judge convicted accused-appellant Badri Prasad for the offence under Section 304 Part I, Indian Penal Code and appellants Sri Kishan, Ram Dhan and Ram Kunwar for the offence under Section 304 Part I read with Section 34 Indian Penal Code and sentenced appellant Badri Prasad to undergo ten years rigorous imprisonment and a fine of Rs. 1,000/-and in default of payment of fine further to undergo six months' rigorous imprisonment; and sentenced appellants Sri Kishan, Ram Dhan and Ram Kunwar to undergo six year's rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo three months' rigorous imprisonment. 2. The appellants alongwith Ramnath, Smt. Ratni and Smt. Chhoti, were tried by the learned Additional Sessions Judge for the offences under Sections 302,323,147 and 148 Indian Penal Code. The case of the prosecution is that on 22.8.90, at about 9.00/10.00 a.m., the accused-appellants, alongwith co-accused Ramnath, Smt. Ratni and Smt. Chhoti came armed with Lathis at the house of PW 1 Ram Lal and at that time they were hurling abuses to Ram Lal. Ram Lal's brother Ram Ratan, when came out side the house, the accused started beating him. Badri Prasad inflicted injury by the Lathi on the head of Ram Ratan, Ram Dhan inflicted injury by Lathi on the waist and Ram Kunwar inflicted injury by the Lathi on the jaw of Ram Ratan while Sri Kishan inflicted injury by the Lathi on the ribs of Ram Ratan, who, on receiving these injuries fell down on the ground and thereafter the accused gave him further beatings. Ram Ratan became unconscious. PW 1 Ram Lal and PW 4 Bhura tried to rescue Ram Ratan. The accused, also, inflicted injuries to them and after inflicting injuries to them, the accused went away. Ram Ratan was brought to the hospital at Shahpura where he breathed his last. PW 15 Bhagwan Singh, A.S.I., Police Station, Poliyakallan reached at the Hospital at Shahpura, recorded the statement of Ram Lal and on the basis of which the FIR Ex. P. 7 was recorded at the Police Station at 3.40 p.m. 3. The prosecution, in support of its case examined sixteen witnesses. PW 15 Bhagwan Singh, A.S.I., Police Station, Poliyakallan reached at the Hospital at Shahpura, recorded the statement of Ram Lal and on the basis of which the FIR Ex. P. 7 was recorded at the Police Station at 3.40 p.m. 3. The prosecution, in support of its case examined sixteen witnesses. PW 1 Ram Lal, PW 2 Suraj Mal, PW 4 Bhura, PW 5 Manohar Singh, PW 6 Phooli and PW 7 Jasoda were produced as the eye witnesses to the occurrence while PW 3 Udai Singh, PW 8 Onad, PW 9 Bhawani Singh and PW 11 Ugma are the Motbir witnesses to the recoveries. PW 10 Ram is also a Motbir witness to the recoveries but he has not supported the prosecution case and was declared hostile. PW 12 Dr. S.N. Vijayvargiya was the Medical Jurist posted at the Sattelite Hospital, Shahpura, who conducted the post-mortem on the deadbody of Ram Ratan and found one injury on his head and two abrasions on the back and neck of Ram Ratan. PW 13 Kadir Mohammed has proved the FIR Ex. P. 13 registered at the Police Station on 18.4.90 PW 14 Nahar Singh was the Head Constable who was the Malkhana Incharge of the Police Station and who sent the articles for F.S.L. examination through Lalu Lal Constable on 22.11.90. PW 15 Bhagwan Singh, A.S.P, went f to the hospital and recorded the Parcha Bayan of Ram Lal and on the basis of which the FIR was registered. PW 16 Ram Prasad was the Station House Officer of the Police Station, who registered the case, investigated the matter and presented the challan. The learned trial Court, after trial, acquitted accused Ram Nath, Smt. Ratni and Smt. Chhoti of all the offences for which they were charged and tried. He, also, acquitted the accused-appellants of the offences under Sections 302, 147, 148 and 323 read with Sec 149 Indian Penal Code but convicted and sentenced the appellants for the offence under Section 304 Part I, Indian Penal Code, as stated above. It is against this judgment dated 19.3.94, passed by the learned trial Court that the appellants have preferred this appeal. 4. There are six eye-witnesses of the occurrence. PW 1 Ram Lal has stated that on the fateful day, between 8.00 to 10.00 a.m., he was at his house. It is against this judgment dated 19.3.94, passed by the learned trial Court that the appellants have preferred this appeal. 4. There are six eye-witnesses of the occurrence. PW 1 Ram Lal has stated that on the fateful day, between 8.00 to 10.00 a.m., he was at his house. Accused Badri Prasad, Sri Kishan, Ram Dhan, Ram Nath, Ram Kunwar, Smt Ratni and Smt. Chhoti came to his house who were armed with sticks and were hurling abuses and were saying. "Come out, they will kill them." Ram Ratan was taking the cattle out side the house. Accused Badri inflicted an injury with the Lathi on the head of Ram Ratan and on receiving that injury, Ram Ratan fell down on the ground and thereafter Ram Dhan inflicted an injury on the back and Ram Kunwar inflicted an injury on the mouth of Ram Ratan by the Lathis. Bhura came out side the house and he was, also, given beatings by the accused. The accused party did not allow them to pass through their cote (Bara). Badri and Ram Dhan had earlier, also, given beatings to them. In the cross-examination he has admitted that Ram Nath was standing there but he did not inflict any injury to any one. He has, also, admitted that he lodged the written report at the Police Station but he cannot say who had written that report but the report was written in the village. He has stated that after hearing the noise of quarrel he, Suraj Mal, Bhura and Ram Kishan came out-side the house. He tried to intervene and was, also, inflicted injuries. When he was confronted with the part assigned to the accused as to who inflicted injury on which part of the body of the injured, he stated that he stated so before the scribe but he cannot say why it has not been written in the written report. He has, also, admitted that he received two injuries but cannot say on which part of the body he received those injuries. When he was confronted with the part assigned to the accused for causing particular injury to the injured that it has not been mentioned in his earlier statement Ex. D. 1, he stated that he said so to the police and cannot say why it has not been mentioned in his earlier statement Ex. D. 1. When he was confronted with the part assigned to the accused for causing particular injury to the injured that it has not been mentioned in his earlier statement Ex. D. 1, he stated that he said so to the police and cannot say why it has not been mentioned in his earlier statement Ex. D. 1. It has come in the evidence of this witness that the relations between the accused-party and the complainant party are strained and the litigations are going-on between them. It has, also, come in the evidence that in the earlier version, the part assigned to the other accused is not mentioned and only a general statement has been made, but he is specific only to this extent that accused Badri Prasad inflicted injury on the head of Ram Ratan. This witness has tried to over implicate the accused. He is specific so far as accused-appellant Badri Prasad is concerned but so far as the other three appellants are concerned, their implication does not appear to be probable and it appears to be a case of over implication. 5. PW 2 Suraj Mal has stated that on the fateful day, in the morning, after taking his meals he was going to his field. Ramdhan and his wife were out side their house. Ramnath was at the house of Ram Dhan. Ram Dhan, Badri, Sri Kishan, Chhoti and Ram Kunwar, also, came out side the house. They were armed with sticks and were hurling abuses. Madan came out and ran away. Ratan came out. Ramdhan asked Badri that "he is going away, give him beatings." Badri inflicted injury by the Lathi on the head of Ram Ratan and after receiving the injury. Ram Ratan fell down. In the meanwhile, Lalu and Bhura, also, came there from their house and thereafter both the parties started fighting. Bhura and Lalu inflicted injuries to Ram Ratan and the other party started giving beatings. From the evidence of this witness, the infliction of the injuries by accused Badri is proved and thereafter a free fight took place. 6. PW 4 Bhura has stated that on the fateful day, at about 9.00 a.m., he was at his house. Ram Ratan and Ram Lal were, also, in the house. From the evidence of this witness, the infliction of the injuries by accused Badri is proved and thereafter a free fight took place. 6. PW 4 Bhura has stated that on the fateful day, at about 9.00 a.m., he was at his house. Ram Ratan and Ram Lal were, also, in the house. Ram Ratan, Sri Kishan, Ram Dhan, Ratni, Chhoti and Ram Nath were standing out-side his house, who were armed with the Lathis and were hurling abuses. Ram Ratan went out side the house and accused Badri inflicted injury by the Lathi on the head of Ram Ratan. Ramdhan inflicted injury on his waist and Ram Kunwar inflicted injury on the chest and Sri Kishan inflicted injury on the ribs of Ram Ratan. Ram Ratan fell down on the ground and thereafter all the accused started beating him. They thereafter came out of their house and the injuries were, also, inflicted to them. Suraj Mai came there. The accused tried to give beating to him, also, but he did not receive any injury. The dispute between the accused and the complainant parties is that he places bushes in the way and closed the way. He has admitted in the cross-examination that a cross case with respect to this very incident is pending against the complainant party. He has, also, admitted that there were litigations pending between the parties. He has stated that there were inimical relations between the parties since long. He has, also, admitted that the fight took place between the parties and both the parties received injuries. He has, also, admitted that the independent witnesses were present in the school which is near the place of the incident. He has, however, denied that they first started inflicting injuries to the accused. The deceased did not receive any injury on the other part of the body which has been assigned to the other accused. In the earlier statement, the part assigned to the accused for inflicting injuries to Ram Ratan has not been mentioned. From the evidence of this witness, also, the infliction of the injury by accused-appellant Badri Prasad to the deceased is proved and there is over implication by the prosecution. 7. In the earlier statement, the part assigned to the accused for inflicting injuries to Ram Ratan has not been mentioned. From the evidence of this witness, also, the infliction of the injury by accused-appellant Badri Prasad to the deceased is proved and there is over implication by the prosecution. 7. PW 5 Manohar Singh has stated that a fight was going on between the complainant party and the accused party but he cannot say who inflicted injury to whom but he has, however, admitted that Ram Ratan died in this incident though Badri and Ramdhan, also, received injuries. 8. PW 6 Phooli - the mother of deceased Ram Ratan - has stated that Ram Ratan was given beatings by Badri, Ram Dhan, Sri Kishan, Ram Nath, Ratni and Chhoti. The accused came to her house and they were hurling abuses. Ram Ratan came out-side the house and Badri inflicted injury by the Lathi on the head of Ram Ratan. Thereafter Ram Dhan, Badri, Chhoti and other accused started giving beating to Ram Ratan by the Lathis. Suraj Mal and Ram Kishan were, also, present there. She raised cries which attracted Suraj Mai and Ram Kishan but no injury was inflicted to Bhura and other person. In the cross-examination she has stated that five ladies were present there and gave beatings to Ram Ratan by Lathis and each of those ladies gave five to seven Lathi blow to the deceased. Looking to the medical evidence it is clear that the deceased received only one injury on his head and the other injuries were only bruises and as such it can be safely said that this witness has, also, tried to over implicate the accused. If the statement of this witness is accepted then the deceased must have received atleast fifteen to twenty injuries on his person but this witness is definite only about one head injuries caused to the deceased by accused-appellant Badri which is proved by the medical evidence, also. 9. PW 7 Jasoda W/o Bhura has stated that on the fateful day, in the morning, she came out-side the house. Her brother-in-law (Jeth) Ram Ratan was taking the cattle out-side the house and she and her husband (Bhura) were prepared to go to the field. At that time the accused Badri, Ram Dhan, Sri Kishan, Chhoti, Ratni and Ram Kunwar came there armed with Lathis. Her brother-in-law (Jeth) Ram Ratan was taking the cattle out-side the house and she and her husband (Bhura) were prepared to go to the field. At that time the accused Badri, Ram Dhan, Sri Kishan, Chhoti, Ratni and Ram Kunwar came there armed with Lathis. The dispute was with regard to the way. This witness has not assigned any specific part to any of the accused. 10. From the evidence of these alleged eye-witnesses, the prosecution has been able to prove the case only to the extent that accused-appellant Badri Prasad inflicted only one injury by the Lathi on the head of deceased Ram Ratan. So far as the other accused-appellants or co-accused are concerned, they have been falsely implicated by the prosecution. The accused were seven in number while the injuries found on the person of deceased Ram Ratan were only three - one injury on the head and the other two injuries were abrasions, which can be caused due to fall on the ground. The doctor has even opined that the injury found on the head of Ram Ratan could also be caused by a fall on the ground. But looking to the evidence produced by the prosecution, which is consistent that the injury on the head of Ram Ratan was inflicted by accused-appellant Badri by the Lathi and the evidence produced by the prosecution, it is clear that accused-appellant Badri Prasad is liable for causing head injury by Lathi to deceased Ram Ratan. So far as the other appellants and the co-accused are concerned, they have been falsely implicated by the prosecution on account of previous enmity. It, also, appears that it was a case of free fight and it cannot be said that who was the person responsible for the open fight but it has been established from the evidence produced by the prosecution that appellant Badri Prasad was the person responsible for causing head injury to deceased Ram Ratan which proved fatal. 11. The next question which requires consideration in the present case is that though accused-appellant Badri Prasad is the perpetrator of the crime but what offence has been committed by him ? 11. The next question which requires consideration in the present case is that though accused-appellant Badri Prasad is the perpetrator of the crime but what offence has been committed by him ? The learned trial Court did not find the accused-appellants guilty for the offences under Sections 302, 147, 148 and 323 read with Section 34 or 149 Indian Penal Code but convicted the accused-appellants for the offence under Section 304 Part I, Indian Penal Code read with Section 34 Indian Penal Code. The totality of the established facts and the circumstances of the case, the nature of the injuries found on the corpse of the deceased and the part of the body selected by the accused-appellant coupled with the weapon used, show that no intention can be imputed to the accused-appellant(s) to cause death of Ram Ratan or to cause the particular fatal injury. The appellant Badri Prasad can, at the best, be imputed with the knowledge that he was likely to cause injury which is likely to cause the death of the victim. In the absence of any positive proof that the appellant Badri Prasad caused the death of deceased with an intention to do so or intentionally inflicted that particular injury which was sufficient in the ordinary course of nature to cause the death of Ram Ratan, the appellant Badri Prasad could not have been convicted and sentenced for the offence under Section 304 Part I, Indian Penal Code. As the injury was inflicted by accused-appellant Badri Prasad to deceased Ram Ratan with the knowledge that the injury was likely to cause his death, therefore, his conviction deserves to be altered from Section 304 Part I, Indian Penal Code to Section 304 Part II, Indian Penal Code. 12. In the result, the appeal filed by appellants Sri Kishan, Ram Dhan and Ram Kunwar is allowed and they are acquitted of all the charges levelled against them. They are in jail and shall be released forth with if not required in any other case.The appeal filed by accused-appellant Badri Prasad is partly allowed. The conviction of appellant Badri Prasad is altered from Section 304 Part I, Indian Penal Code to Section 304 Part II, Indian Penal Code andhe is sentenced to five years' rigorous imprisonment and a fine of Rs. 200/- (Rs two hundred) and in default of payment of fine further to undergo one month's rigorous imprisonment. The conviction of appellant Badri Prasad is altered from Section 304 Part I, Indian Penal Code to Section 304 Part II, Indian Penal Code andhe is sentenced to five years' rigorous imprisonment and a fine of Rs. 200/- (Rs two hundred) and in default of payment of fine further to undergo one month's rigorous imprisonment. The period of imprisonment undergone by him during investigation, enquiry or trial shall be set off against the term of imprisonment imposed against him.Appeal partly allowed. *******