JUDGMENT 1. - The appellants were the accused in sessions case No. 37/1993 on the file of the Sessions Judge, Jhunjhunu. They were found guilty and convicted as under:- (i) The accused appellant Samandra Singh-U/s. 302 IPC life imprisonment U/s. 447 IPC 3 months R.I. (ii) Accused appellant Raghuveer Singh-U/s. 326 IPC 3 years R.I. and fine of Rs. 1000/- (in default to further undergo 3 months R.I.) U/s. 447 IPC 3 months R.I. (iii) Accused appellants Devi Dan, Girdhari and Smt. Riz Kaur-U/s. 447/323 IPC sentenced already undergone All the sentences where to run concurrently. 2. Aggrieved by the conviction and sentence the present action for filing the appeal has been resorted to. 3. Brief facts are:- (i) On 6.12.1992 around 1 p.m. informant Dheer Singh (PW 1) lodged a written report (Ex.P. 1) with the Police Station, Surajgarh, Dist. Jhunjhunu stating therein that his cousin had gone to the field in the morning, suddenly Devi Dan son of Chena Ram, Girdhari Son of Dei Dan, Reghuveer, Karan Singh, Smandra Singh and Riz Kaur wife of Dei dan, armed with axe, barchi and lathi came in the field. Dei dan was having `jelly', Girdhari was armed with `kasia', Karan Singh was armed with barchi, Raghuveer Singh was having axe, Samandra Singh was also having axe and Riz Kaur was also armed with jelly. They started inflicting injuries on the person of Ram Chandra killed and him at the spot. His brother Rameshwar and Raju also sustained injuries. Dead body of Ram Chandra was lying at the sport. Raju and Rameshwar were seriously injured and Raju became unconscious. They were taken to the Chidawa Hospital by Mool Chand, Daya Ram and Shiv Ram etc. This incident had taken place at about 8.30-9.00 a.m. At the time of incident Jay Singh and Mool Chand were present. Jai Singh intimated him about the incident. (ii) A case U/s. 302, 307, 147, 148, 149, 323 and 447 IPC was registered against the accused persons and investigation commenced. (iii) Charge sheet U/s. 302, 307, 147, 148, 149, 323 and 447 IPC was filed and the case was committed in the court of Sessions Judge, Jhunjhunu. (iv) Charges U/s. 447, 148 and 302 IPC and alternative charges U/s. 302/149. (iii) Charge sheet U/s. 302, 307, 147, 148, 149, 323 and 447 IPC was filed and the case was committed in the court of Sessions Judge, Jhunjhunu. (iv) Charges U/s. 447, 148 and 302 IPC and alternative charges U/s. 302/149. 326/149 and 323 of the IPC were framed against accused Dei Dan, Smt. Riz Kaur, Samandra Singh, Karan Singh and Girdhari Lal and Charges U/s. 447, 148, 302 IPC and alternative charges U/s. 302/149, 326 and 323 of the IPC were framed against accused Raghuveer Singh. The accused denied charges and claim trial. (v) The prosecution examined as many as 13 witnesses in support of its case and produced 34 documents. Thereafter statements of accused U/s. 313 Cr.PC were recorded. The accused did not examine the evidence in defence. (vi) The learned trial Court acquitted co-accused Karan Singh from all the charges and the accused appellants were convicted as indicated herein above. 4. Mr. A.K. Gupta, the learned counsel vehemently argued that the prosecution has suppressed the true version of the occurrence. The fields of the accused party and the complainant party are adjacent to each other. Under these circumstances when the occurrence took place suddenly without any pre-meditation and in a heat of passion then it was the duty of the prosecution to bring the true facts on record. Even if the prosecution case be taken on its face value the conviction of accused appellant Samandar Singh can not be sustained U/s. 302 IPC and also in the facts and circumstances of the case the accused appellants could not have been convicted U/s. 447 IPC. The trial Judge has not considered the testimony of Rameshwar (PW 2), Jai Singh (PW 3), Rajendra (PW 4) and Mool Chand (PW 5) in right perspective. The testimony of injured witnesses Rameshwar (PW 2) and Rajendra (PW 4) are not corroborated by the medical evidence. The prosecution has not explained the delay in lodging FIR. As per the statement of Bajrang Mal (PW 7) the inquest report was prepared at 11-11-30 a.m. and other investigation was also commenced. Under these circumstances there was no occasion for the police to register the FIR at 1 p.m. on 6.12.92. Injury sustained by the deceased could not have been caused by axe and testimony of eye-witnesses become doubtful in the light of the statement of medical jurist. Under these circumstances there was no occasion for the police to register the FIR at 1 p.m. on 6.12.92. Injury sustained by the deceased could not have been caused by axe and testimony of eye-witnesses become doubtful in the light of the statement of medical jurist. In view of the statement of Rameshwar (PW 2), Jai Singh (PW 3) and Mool Chand (PW 5) were not the eye-witnesses of the occurrence. The occurrence did not take place on the date and time as mentioned by the prosecution, as is evident from the statement of Parsada Ram (PW 8). No reliance can be placed on the statement of Rameshwar (PW 2) on the basis of his unnatural conduct. 5. Mr. Goyal, the learned Public Prosecutor has supported the judgment of the trial Court. According to him, findings of trial Court were arrived at after legal appreciation of evidence and the judgment of the trial Court is a well reasoned judgment. 6. We have given our thoughtful and anxious consideration to the arguments advanced by the learned counsels and perused the record we are now to determine as to whether the prosecution has proved its case against the accused appellants beyond reasonable doubt. We, therefore, proceed to discuss the origin and the genesis of the occurrence. First we take up the evidence of the informant and other eye witnesses. Dheer Singh the informant (PW 1) is not an eye-witness of the occurrence. He has only stated that he instituted FIR on the basis of information given by Jai Singh (PW 3). Rameshwar (PW 2) has given eye-witness account of the occurrence. He has stated that he, Ram Chandra and Rajendra were going to their field, when they reached near the dhani of the accused person, they started abusing them and were shouting not to spare enemies and kill them. Dei Dan and Smt. Riz Kaur were haying jelly, Girdhari was having kasia, Raghuveer and Samandra Singh were armed with axes and Karan Singh was having barchi. They started chasing Rameshwar, Ram Chandra and Rajendra. Finding them near, Ram Chandra, asked as to why they were abusing. Dei Dan and Smt. Riz Kaur were haying jelly, Girdhari was having kasia, Raghuveer and Samandra Singh were armed with axes and Karan Singh was having barchi. They started chasing Rameshwar, Ram Chandra and Rajendra. Finding them near, Ram Chandra, asked as to why they were abusing. At this Samandra Singh inflicted axe blow on the back of Ram Chandra as a result of which he fell down When Rajendra intervened, Raghuveer inflicted axe blow on his head, thereafter Del Dan inflicted Jelly blow on the shoulder of Rameshwar and Girdhari inflicted kasia blow on his head. When he started running Smt. Riz Kaur inflicted Jelly blow. Girdhari, Dei Dan and Smt. Riz Kaur were also giving blows on the person of Ram Chandra and Rajendra by legs and jellies. Mool Chand and Jai Singh came over there and asked them atleast to spare one person as they already killed two persons. 7. Jai Singh (PW 3) stated that Ram Chandra, Rajendra and Rameshwar were in their field. Samandra Singh inflicted axe blow on the back of Ram Chandra when Rajendra intervened Raghuveer inflicted axe blow on his head.Samandra inflicted another axe blow on the hand of Ram Chandra and other accused persons caused injuries by their legs. Dei Dan and Girdhari inflicted jally and kasiya blows on the person of Rameshwar. 8. Dr. Rameshwar Lal (PW 11) conducted autopsy of the dead body of Ram Chandra and found following injuries:- (i) Deep straight incised wound 5 inch x 3.5 inch x 1/2 inch from left scapula to one inch away from thoraxic vertebra to right side scapula. (ii) Incised wound 2 inch x 1 inch posterior aspect on left palm. According to Dr. Rameshwar the death of Ram Chandra was caused by excessive hemorrhage which lead to shock. 9. Injured Rajendra (PW 4) sustained deep incised wound 5 inch x 1/2 inch x 1/4 inch upper part of left parietal region of head. After X-ray examination of the injury, the fracture of skull was detected and the injury was declared grievous in nature. According to injury report of Rameshwar (PW) there were three simple injuries in the nature of swelling, found on the right side of head and on right shoulder. 10. The trial court acquitted appellant Samandra Singh from the charges U/s. 14, 326/149 and 323 of the IPC. According to injury report of Rameshwar (PW) there were three simple injuries in the nature of swelling, found on the right side of head and on right shoulder. 10. The trial court acquitted appellant Samandra Singh from the charges U/s. 14, 326/149 and 323 of the IPC. Accused Raghuveer Singh was also acquitted from the charges U/s. 148, 302 and also from alternative charges U/s. 302/149 and 323 of the IPC. Accused Dei Dan, Girdhari Lal and Smt. Riz Kaur were also acquitted from the charge U/s. 148 and 302 IPC and from the alternative charge U/s. 302/149 and 326/149 of the IPC. Appellant Samandar Singh, Raghuveer Singh and other appellants Dei Dan, Girdhari Lal and Smt. Riz Kaur have been convicted on the basis of their individual guilts. The trial court found Samandar Singh guilty U/s. 447 and 302 IPC and Raghuveer Singh U/s. 447 and 326 IPC whereas accused Dei Dan, Girdhari Lal and Smt. Riz Kaur were found guilty U/s. 447 and 323 of the IPC. 11. We have carefully perused the testimony of the eye-witnesses examined by the prosecution in this case and we are the view that the incident had taken place all of sudden, without pre-meditation and on the spur of moment. The prosecution has failed to bring on record the immediate cause of the incident. It appears that the origin and the genesis of the occurrence has been Intentionally concealed by the prosecution. A perusal of ocular evidence reveals that a solitary blow was given by accused Samandra Singh on the back of deceased Ram Chandra, as a result of which he sustained injury on the scapula. Taking into consideration the totality of the circumstance, it appears that the appellant probably being provoked by sudden quarrel and altercation, inflicted injury on the person of the deceased. It can not be held, with certainty that appellant intended to cause particular injury sustained by the deceased, though it landed on the scapula of the deceased, resulting in his unfortunate death. The fields of the appellants and the deceased are adjacent to each other and it appears that on account of sudden quarrel, the incident had taken place. In our considered opinion the conviction of the appellant U/s. 302 IPC is not sustainable in the eye of law and it should be scaled down U/s. 304 Part II IPC. 12. The fields of the appellants and the deceased are adjacent to each other and it appears that on account of sudden quarrel, the incident had taken place. In our considered opinion the conviction of the appellant U/s. 302 IPC is not sustainable in the eye of law and it should be scaled down U/s. 304 Part II IPC. 12. So far as conviction of Samandra Singh U/s. 447 IPC is concerned, the learned trial Judge has observed that the incident had taken place in the field of deceased. In order to test the correctness of the observation made by the trial judge, we have minutely scrutinised the statements of the eye-witnesses. Statements of Rameshwar (PW 2) and Jai Singh (PW 3) are vague, so far they relate to the charge of criminal trespass, whereas Rajendra (PW 4) has stated that they were stopped in their field and the accused persons inflicted injuries. He has further stated in his examination-in-chief:- "Ladai Jis Jagah Hui Wo Jagah Hamari Seer Se Paschim Me 10 Feet Door Thi." (The place where the Incident had taken place was at a distance of 10 feet from our boundary)Mool Chand (PW 5) has admitted in his cross-examination that boundaries of the field of Ram Chandra and Dei Dan were adjacent to each other. According to him, Dhani of accused persons was situated on the boundary of the field of Ramchandra.Govind Ram Sharma, Patwari (PW 10) has stated that he did not know as to on which field the fight had taken place.Ram Dhan I.O. (PW 13) has admitted in his cross-examination that he did not mark the place of incident in the site plan. 13. Therefore evidence adduced by the prosecution to prove charge under Section 447 IPC does not inspire confidence and we are of the view that the learned trial Judge has committed illegality in convicting the accused appellants U/s. 447 of the IPC. The prosecution has failed to prove the case of criminal trespass against the accused appellants beyond reasonable doubt. It was incumbent upon the Investigation Officer to investigate as to on which place the incident had taken place and to mark the said place in the site plan. Merely on the basis, that the dead body was lying in the field of the complainant party, it can not be inferred that occurrence took place there. It was incumbent upon the Investigation Officer to investigate as to on which place the incident had taken place and to mark the said place in the site plan. Merely on the basis, that the dead body was lying in the field of the complainant party, it can not be inferred that occurrence took place there. More particularly when the fields of complainant and accused part are adjacent to each other. Therefore, we hold that appellants are not guilty of committing offence of criminal trespass. 14. So far as the conviction of accused appellant Reghuveer Singh U/s. 326 IPC is concerned, we are of the view that he has been rightly convicted by the trial Judge. Injury found by medical officer on the person of Rajendra, has been corroborated by the eye witnesses. He sustained grievous injury by sharp edged weapon and the said injury has been attributed to accuse Raghuveer Singh. There is no reason to disbelieve the testimony of eye witnesses and the medical officer. Charge under Section 323 has been proved against accused Dei Dan, Girdhari and Smt. Riz Kaur as there is ample evidence to connect them with this charge and they have been rightly convicted by the trial Court under this section. 15. Accordingly we allow this appeal in part Conviction and sentence of the appellant Samandra Singh U/s. 447 and 02 of the Indian Penal Code are set aside. The appellant Samandra Singh is convicted U/s. 304 part II IPC and sentenced to suffer R.I. for five years and to pay a fine of Rs. 10,000/- in the event of default of payment of fine the appellant shall further undergo R.I. for one year, If the amount of fine is recovered it shall be paid to the legal heirs of the deceased. The conviction and sentence passed U/s. 447 IPC against accused appellants Raghuveer Singh, Girdhari Lal, Dei Dan, Karan Singh and Smt. Riz Kaur are set aside and the conviction and sentenced passed by the trial Court U/s. 326 IPC against accused appellant Raghuveer Singh and under Section 323 IPC against Dei Dan, Girdhari and Smt. Riz Kaur, are maintained.Appeal Partly allowed. *******