JUDGMENT 1. - This appeal is directed against the judgement dated 10.9.1993 passed b|( the learned Additional Sessions Judge, Bhilwara Camp Shahpura whereby th4( accused-appellants Shankernath and Kailashnath were convicted of the offence under s. 302/34 Indian Penal Code and were sentenced to imprisonment for life together with a fine of Rs. 50/- each. 2. The prosecution case lies in a very narrow compass. It is alleged that on 17.1.1992 at about 6.15AM, RW. 1 Khana Daroga lodged an FIR at police station, Jahajpur alleging therein that on 16.1.1992 at about 5.00 PM he was at the Well of deceased Balbirsingh. He and deceased Balbirsingh came to village Khoharakalan and met Pratap Meena and Laduram Meena. Balbirsingh instructed them to arrange for Charkhi and watering the field. Thereafter, they came to Bus Stand at about 8.00 PM. At the Bus Stand there was a Hotel of accused Shankernath which was attached with his house. When they reached there, the dog of Shankernath started barking. Balbirsingh asked Shankernath to keep his dog in control but Shankernath retorted that the dog will continue to bark. This led to some altercations between Shankernath and Balbirsingh. PW. 1 Khana sat on a Chabutari near by. Balbirsingh and Shankernath continued to abuse each other for a long time. Thereafter Shankernath called his brother Kailashnath who came there armed with a lathi. As soon as Kailashnath came there he asked Balbirsingh not to abuse, Balbirsingh pushed him aside and Kailashnath and Shankernath got angry and started assaulting Balbirsingh with lathi. Both the accused dealt with one lathi blow each on the head of Balbirsingh as a result of which he fell down. On account of receiving these injuries blood was coming out of his ear. Both the accused then dragged Balbirsingh and put him in the hut. 3. Khana then went to village Biletha and informed PW. 11 Achalsingh about this incident. Achalsingh and Khana then returned to the Hotel of Shankernath and saw Balbirsingh lying in injured condition in the hut. He was unconscious and he did not respond to their call. They then brought Balbirsingh to Government Hospital Jahajpur on a tractor. 4. He was then referred to the Govt. Hospital, Bhilwara for his treatment. On receipt of this report, the police registered a case under sections 307 and 323 read with s. 34 Indian Penal Code and started investigation. He was unconscious and he did not respond to their call. They then brought Balbirsingh to Government Hospital Jahajpur on a tractor. 4. He was then referred to the Govt. Hospital, Bhilwara for his treatment. On receipt of this report, the police registered a case under sections 307 and 323 read with s. 34 Indian Penal Code and started investigation. Balbirsingh died in the Hospital. After his death post-mortem examination of his body was got conducted by PW. 12 Avdhesh Mathur. According to post-mortem report Ex. p. 15 Balbirsingh had two haemotomas 4" x3" in diameter on his left and right forehead with bruises. On opening the head, the Medical Officer found fractures of left parietal and temporal bones. In the opinion of the Doctor, Balbirsingh died due to shock and haemorrhage resulting from head injuries. 5. The Investigating Officer inspected the site, seized the blood stained clothes and after investigation, filed a challan against the accused in the court of the learned Judicial Magistrate, Jahajpur who committed them to the court of sessions for trial. The learned Sessions Judge, Bhilwara framed the charge under s. 302/34 Indian Penal Code against the accused-appellants. The accused-appellants pleaded not guilty to the charges and claimed to be tried. The prosecution examined as many as 17 witnesses in support of its case. The statements of the accused-appellants were recorded under section 313 Criminal Procedure Code In their statements, the accused denied to have committed the murder of Balbirsingh and alleged that they have been falsely implicated in the case. The accused did not produce any evidence in their defence. 6. The learned Additional Sessions Judge after appreciating the evidence on record held that Balbirsingh died as a result of the head injuries caused by the accused-appellants. Thus, the death of Balbirsingh was homicidal in nature. The learned Additional Sessions Judge found the case against the accused to be proved beyond all reasonable doubt. He relied on the statement of PW. 1 Khana. According to him, PW.1 Khana is a reliable and trustworthy witness whose testimony is corroborated by PW.2 Shivraj, PW.7 Ramchandra, RW. 8 Pratap, RW.11 Achalsingh and PW. 15 Smt. Santosh Kanwar. The statements of Khana and other witnesses stood corroborated by the medical evidence. He, therefore, convicted and sentenced the accused-appellants as aforesaid. 7. We have heard Mr. Babu Lal Khatri, the learned Amicus Curiae for the accused-appellants and Mr. 8 Pratap, RW.11 Achalsingh and PW. 15 Smt. Santosh Kanwar. The statements of Khana and other witnesses stood corroborated by the medical evidence. He, therefore, convicted and sentenced the accused-appellants as aforesaid. 7. We have heard Mr. Babu Lal Khatri, the learned Amicus Curiae for the accused-appellants and Mr. Deo Raj Bohra, the learned Public Prosecutor appearing for the State and have carefully gone through the record of the case. 8. Mr. Babulal Khatri, the learned Amicus Curiae has assailed the conviction and sentence of the accused - appellants on the ground that there is no reliable or trustworthy evidence on the record against the accused- appellants, on the basis of which the conviction and sentence recorded by the learned Addl. Sessions Judge can be sustained. He has submitted that the learned Addl. Sessions Judge has heavily placed reliance. on the testimony of RW. 1 Khana. He referred to the statement of PW.1 Khana and submitted that the witness has stated that he saw Balbirsingh and Shankernath altercating with each other for an hour while sitting on a Chabutra at the nearby place. It is not probable that they altercated and abused each otherfor an hour. It also appears to be impossible that this witness could sit for one hour at the Chabutra. RW.1 Khana has further stated that he went to report the matter at the police station but the Incharge police Station asked him to bring the injured. According to him, the report was lodged at 3.30A.M. but in fact, the report was lodged at 6.15 A.M. There is no other eye witness of this occurrence. Mr. Khatri argued that in a case dependent on the solitary statement of a witness, the court must scrutinies his testimony with due care and caution and if it contains serious contradictions, omissions or inconsistencies, the statement should not be relied upon. 9. The learned Amicus curiae also referred to the statements of other witnesses and submitted that if the testimony of RW. 1 Khana is not relied on, the other evidence will not help the case of the prosecution. In support of his contention, he placed reliance on Kheta v. State of Raj., 1987 RLR {ii} 840 . 10. In the alternative, it was argued by Mr. 1 Khana is not relied on, the other evidence will not help the case of the prosecution. In support of his contention, he placed reliance on Kheta v. State of Raj., 1987 RLR {ii} 840 . 10. In the alternative, it was argued by Mr. Khatri that even if it is held that both the accused dealt with one blow each to Balbirsingh then too the accused appellants could only be attributed with causing one lathi blow on the head of Balbirsingh. Balbirsingh did not die instantaneously but remained unconscious and it appears that on account of improper medical aid, he succumbed to his injuries. He, therefore, submitted that the case of the accused-appellants does not travel beyond s. 304 Part II, Indian Penal Code. 11. On the other hand, the learned Public Prosecutor appearing for the State has supported the impugned judgment of the learned trial court. According to the learned Public Prosecutor, PW.1 Khana, though illiterate, is absolutely reliable and he has clearly stated that firstly there were some altercations between Balbirsingh and Shankernath and thereafter, Kailashnath arrived at the scene of the occurrence and altercations also took place between Kailashnath and Balbirsingh. After that, accused Kailashnath and Shankernath both dealt one lathi blow each on the head of Balbirsingh as a result of which Balbirsingh fell down and became unconscious and eventually died. The statement of P.W. 1 Khana is absolutely trustworthy. Regarding time element, it may be appreciated that the witness is illiterate and he cannot be credited with the exact sense of measuring or stating the exact time. 12. We have considered the rival contentions made at the bar and have also perused the evidence on record. 13. So far as the death of Balbirsingh is concerned, it is not disputed that he died on account of sustaining two head injuries which resulted in fractures of his left temporal and parietal bones. Hence there is no dispute that Balbirsingh met with homicidal death. 14. Now the question that crops up for determination is as to who caused the above injuries to Balbirsingh? 15. The statement of PW. 1 Khana is very material and the whole prosecution case hinges on his solitary evidence. PW. Hence there is no dispute that Balbirsingh met with homicidal death. 14. Now the question that crops up for determination is as to who caused the above injuries to Balbirsingh? 15. The statement of PW. 1 Khana is very material and the whole prosecution case hinges on his solitary evidence. PW. 1 Khana has stated that on the date of the occurrence, he and Balbirsingh both started together and after attending the agricultural job, they reached near the Hotel and hut of Shankernath and at that time, the dog started barking at Balbirsingh. Balbirsingh asked Shankernath to control his dog but the later retorted that the dog would continue to bark. This resulted in altercations between the two. Thereafter. Shankernath called Kailashnath. There were some altercations between kailashnath and Balbirsingh also. After that, accused Shankernath and Kailashnath dealt with one lathi blow each on the head of Balbirsingh. One injury was also caused on his left hand. Balbirsingh fell down and became unconscious. His body was dragged into the hut of Shankernath by the accused. This witness has stated that he could not intervene on account of fear. He then came to village and informed Achalsingh and Kesharsingh about this incident. Both these persons accompanied Khana and all the three came to the place of the occurrence. Achalsingh wanted to have a talk with Balbirsingh but he did not respond to his call as he was unconscious. Thereafter, Khana and Achalsingh lodged the report at the Police Station at 3.30 AM. after leaving Kesharsingh with Balbirsingh. Then they returned to the place of the occurrence and removed Balbirsingh on a tractor to Govt. Hospital Jahajpur. The medical Officer, Jahajpur referred Balbirsingh to Govt. Hospital, Bhilwara. They brought Balbirsingh to Bhilwara in a Jeep but shortly thereafter, he succumbed to his injuries. 16. In his cross-examination, PW.1 Khana has stated that it was a moon lit night and he could see easily the accused-appellants assaulting Balbirsingh. He did not intervene on account of fear. 17. P.W. 8 Pratap has stated that next day, he heard that Balbirsingh was assaulted and taken to Bhilwara Hospital, PW.9 Chhittarsingh has turned hostile to the prosecution, P.W.11 Achalsingh has stated that Khana came and informed him about the incident. Thereafter he alongwith Kesharsingh and Khana came to the place of the occurrence. 17. P.W. 8 Pratap has stated that next day, he heard that Balbirsingh was assaulted and taken to Bhilwara Hospital, PW.9 Chhittarsingh has turned hostile to the prosecution, P.W.11 Achalsingh has stated that Khana came and informed him about the incident. Thereafter he alongwith Kesharsingh and Khana came to the place of the occurrence. Balbirsingh was lying beneath the Chhatar in the hut of Shankernath in an injured condition. He was unconscious and, therefore, he did not respond to his call. This witness has further stated that when he asked the accused, the accused told that there was a mutual fight between them and Balbirsingh, as a result of which Balbirsingh got injured. Thereafter, this witness and Khana went to the police Station but since none was there, they returned to Biletha and then went to Jahajpur. Balbirsingh was shifted to Govt. Hospital, Jahajpur in a tractor but the Medical officer referred Balbirsingh to Govt, Hospital, Bhilwara. Then Balbirsingh was shifted to Bhilwara. 18. P.W. 14 Gangaram has also turned hostile to the prosecution. PW. 15 Smt. Santosh is the wife of deceased Balbirsingh. She has stated that accused Shankernath was working as ADOLI on her field. There was some dispute with Shankernath and so he was removed. Shankernath nurtured a grudge against them on account of this dispute. On the date of the occurrence, her husband went to the field for making necessary arrangements. She was informed by RW. 9 Chhittarsingh that accused appellants have assaulted Balbirsingh and he was lying unconscious beneath the Chhapar of Shankernath in his hut. She went to Govt. Hospital, Bhilwara where her husband succumbed to his injuries. 19. From the above evidence, it is clear that the statement of RW.1 Khana, except some minor contradictions and ommissions, is consistent, straightforward and reliable. He claimed to have witnessed the actual occurrence for about an hour which cannot be correct because accused and Balbirsingh could not fight for such a long time. It appears that his sense of time is not correct and he is stating on the basis of estimation. Since it was moon lit night, it was possible for Khana to have seen the occurrence clearly. Moreover, he was sitting at a short distance. He reported this matter to Achalsingh and Kesharsingh. PW. 11 Achalsingh has fully corroborated PW.1 Khana. Thus, we are convinced that PW. Since it was moon lit night, it was possible for Khana to have seen the occurrence clearly. Moreover, he was sitting at a short distance. He reported this matter to Achalsingh and Kesharsingh. PW. 11 Achalsingh has fully corroborated PW.1 Khana. Thus, we are convinced that PW. 1 Khana is making a correct statement that both the accused dealt with one blow each on the head of Balbirsingh with their lathis. This fact also stands corroborated by the medical evidence. PW. 12 Dr. Avdhesh Mathur found two lacerated wounds on the head of Balbirsingh. It has, therefore, been proved that accused-appellants Shankernath and Kailashnath caused above injuries to Balbirsingh. 20. Now, the next question that arises for determination is as to what offence was committed by the accused- appellants? 21. It may be stated that the quarrel between the accused and Balbirsingh was sudden. Both the parties hurled abuses on each other and that resulted in enraging the accused- appellants and they dealt one blow each on the head of Balbirsingh which resulted in the fracture of the skull. It is significant that thereafter, they refrained from causing any further injuries. It is a settled law that where there is no premeditation and in the course of a sudden quarrel on a trivial issue, the accused indulge in violence of a limited nature, it cannot be said that they had an intention to commit culpable homicide amounting to murder. The accused can only be imputed with the knowledge that they were likely to cause the death. Hence the accused can only be held guilty of the offence under s. 304 Part II, Indian Penal Code. 22. Now, the next important question is whether section 34 Indian Penal Code can be applied to an offence under s. 304 part II, Indian Penal Code, in Abrahim Sheikh and Ors. v. State of West Bengal, AIR 1964 SC 1263 , their lordships of the Supreme Court have considered the legality and validity of a conviction under section 304 part I read with s. 34 Indian Penal Code and held that a conviction under s. 304 Part II read with S. 34 Indian Penal Code is legal and valid. v. State of West Bengal, AIR 1964 SC 1263 , their lordships of the Supreme Court have considered the legality and validity of a conviction under section 304 part I read with s. 34 Indian Penal Code and held that a conviction under s. 304 Part II read with S. 34 Indian Penal Code is legal and valid. Part II of S. 304 Indian Penal Code can be read together with s. 34, not with standing that Part II of s. 304 speaks only of knowledge while s. 34 deals with common intention, 23. In this view of the matter, it is clear that section 34 Indian Penal Code can be applied to case where conviction is made under s. 304 Part II Indian Penal Code. In the instant case, the facts show that accused Shankernath and deceased Balbirsingh had first altercated with each other and thereafter, Shankernath called Kailashnath, As soon as Kailashnath arrived at the scene of the occurrence, he was also engaged in wordy duel with Balbirsingh which ultimately resulted in violence. Both the accused were armed with lathis and it also appears that there was some quarrel before also as is reflected from the conversation which Kailashnath had with Balbirsingh. In other words, the accused were nurturing a grievance against Balbirsingh. Both the accused armed with lathis assaulted simultaneously on the head of Balbirsingh. Hence, from the facts of the case, it is clear that both the accused shared a common intention or design to assault Balbirsingh. 24. We have already held that the offence does not amount to culpable homicide amounting to murder but falls within the ambit of part II of s. 304 Indian Penal Code. 25. For the above reasons, we allow this appeal in part, hold the accused-appellants guilty of the offence under s. 304 Part II, Indian Penal Code read with s. 34 Indian Penal Code and sentence them to rigorous imprisonment for five years together with a fine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months. 26. Let the accused-appellants be informed about the result of this appeal and the record of this case be sent back to the learned trial court forthwith.Appeal Partly Allowed. *******