Judgment 1. The appellants have been convicted for the offence under Sections 302/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for lite and to pay fine of Rs. 500/- each and in default to undergo rigorous imprisonment for one year. They have further been convicted for the offence under Section 34 of the Indian Penal Code but no separate sentence has been awarded. Appellants Jamuna Ram, Mahadeo Prasad and Chabilal Prasad have further been convicted for the offence under Section 323 of the Indian Penal Code and have been sentenced to undergo R.I. for three months. Appellant Mathura has further been convicted for the offence under Section 324 of the Indian Penal Code and has been sentenced to undergo R.I. for six months vide judgment and order dated 27.2.1987 in S.T. No. 24/88 of 1985. 2. Fardbeyan of Basudeo Ram was recorded on 31.5.1984 at 3 p.m. in the Hospital. It has been stated by the informant that at about 11.45 a.m. Panchaity was to be held with regard to dispute for partition of land between Deonandan Prasad the deceased and Jamuna Ram, uncle of the deceased. One Mukhiya, namely Bindeshwari Thakur had reached there. At that very time, the appellants are alleged to have abused Deonandan Prasad which he protested and due to the aforesaid reason there was altercation between them. Appellant Mahadeo Prasad ordered his younger brother Mathura Prasad to kill him. Deceased Deonandan Prasad started running away towards his house. The appellants chased him and caught him in the bamboo orchard. Mukhiya Bindeshwari Thakur went to his house. It was alleged that Jamuna Ram assaulted Deonandan Prasad with brickbat and Mahadeo Prasad and Chabilal Prasad with lathi and Mathura Prasad assaulted the deceased with gupti near the ear and on the thigh. Informant Basudeo Ram was also assaulted by Mathura Prasad with gupti when he tried to save the deceased. He was also assaulted with brickbats and lathi by other accused persons on the alarm people came there and then accused-persons ran away. While the deceased was being taken to the Hospital he died on way. The motive of the occurrence was dispute for partition and altercation between them. 3. On the aforesaid fardbeyan formal, First Information Report was registered. Investigation was taken up and on completion of the investigation charge sheet was submitted against the appellants. While the deceased was being taken to the Hospital he died on way. The motive of the occurrence was dispute for partition and altercation between them. 3. On the aforesaid fardbeyan formal, First Information Report was registered. Investigation was taken up and on completion of the investigation charge sheet was submitted against the appellants. The Court after receipt of charge-sheet committed the case to the Court of Sessions for trial and the trial Court convicted the appellants as indicated above. 4. The defence of the appellants was that no occurrence in the manner as alleged has taken place and they have falsely been implicated in this case. Appellants had purchased some lands from one Thagia and the deceased was demanding share in that land. The deceased was also trying to take forcible possession of the house which they protested due to which the accused-persons were assaulted and on alarm raised the deceased tried to run away but he fell down in bamboo orchard and sustained injuries. 5. The prosecution in support of its case examined 11 witnesses. PW 1 is witness to the inquest and seizure of the blood. PW 2 and 8 have proved signature on the fardbeyan PW 9 is Doctor who held post-mortem over the dead body. PW 10 is also doctor who examined the informant and also appellant Jamuna Ram and Mathura Prasad. PW 11 is the Inves-tigating Officer PWs 4, 5, 6 and 7 claimed to be eye witnesses to the occurrence. PW 3 is the informant and he also claimed to be eye-witness to the occurrence. 6. Five witnesses have claimed to be eye-witnesses to the occurrence. They have stated that they were present at the place of occurrence and had seen the occurrence. However, learned counsel for the appellants pointed out discrepancies in the evidence of witnesses and stated that even if prosecution case is accepted it is not a case of murder. Therefore, conviction of the, appellants under Sections 302/34 of the Indian Penal Code is bad in law. In this regard, it is evident that PW 3, the informant, gave details of relationship between the parties and also stated that accused-persons also received injuries in the occurrence. The witness stated that his father had four brothers, namely, Jamuna Ram, Saryu Ram, Narain Ram and Ram Rekha. Jamuna Ram was the eldest brother. Mahadeo Prasad and Mathura Prasad are his sons. The witness stated that his father had four brothers, namely, Jamuna Ram, Saryu Ram, Narain Ram and Ram Rekha. Jamuna Ram was the eldest brother. Mahadeo Prasad and Mathura Prasad are his sons. Appellant Chabilal Prasad is brother-in-law (Sala) of Mahadeo Prasad. Deceased Deonandan Prasad was the only son of his father, namely, Narayan Ram. Partition had already taken place in between this witness and other partners. There was dispute for petition between the deceased and Jamuna Ram. Panchaity was to be held on the relevant date and time. The appellants abused the deceased causing altercation between them and the occurrence of assault. It has been stated that Jamuna Ram assaulted with brick bats, Mahadeo Prasad and Chabilal Prasad with lathi and Mathura Prasad assaulted with gupti which hit near left ear and on left thigh. PW 6 is wife of the deceased. She also stated that there was dispute for partition between her husband, the deceased, and Jamuna Ram. Panchaity was to be held. At the relevant time there was altercation between the deceased and the appellants causing incident. She supported the assault by these appellants. Similar is the evidence of other witnesses such, as PWs 4, 5 and 7. They all have stated that on the date of occurrence panchaity was to be held. There was altercation between the parties leading to the incident as stated above. 7. Doctor, PW 9 held post-mortem over the dead body. He stated that he held post-mortem over the dead body at 9.30 a.m. on 1.6.1984 and found two penetrating wounds, one on the left side of the face and the other on the thigh which went to the stomach. Third injury was swelling on the back of scalp which was caused by hard blunt substance. He further stated that injury Nos. 2 and 3 were sufficient to cause death. 8. Learned counsel for the appellants pointed out that three persons are alleged to have assaulted with hard and blunt substance but the Doctor has found only one injury caused by hard and blunt substance and as such it cannot be said that who has caused said injury. PW 10 is Doctor who examined the informant and found 5 simple injuries on his person. He also examined appellant Jamuna Ram and found six simple injuries on his person. PW 10 is Doctor who examined the informant and found 5 simple injuries on his person. He also examined appellant Jamuna Ram and found six simple injuries on his person. On the same day, he also examined Mathura Prasad and found two simple injuries on his person. 9. Thus, from the evidence as discussed above, it is evident that there was dispute for partition between the deceased and appellant Jamuna Ram. Mahadeo Prasad and Mathura Prasad arc his sons and Chabilal Prasad is brother-in-law (Sala) of Mahadeo Prasad. Panchaity was to be held but before it there was altercation and occurrence took place. Thus, it can safely be said that occurrence took place on the spur of the moment as there was no premeditation of committing offence of murder. The parties are also co-sharers. The prosecution witnesses admitted in their evidence that appellants had no weapon in their hands. Appellants had also sustained injuries in the occurrence. Therefore, it appears that there is substance in the submission of learned counsel for the appellants. Thus, on consideration the conviction of the appellants under Sections 302/34 of the Indian Penal Code cannot be said to be legal and justified. Accordingly, conviction of the appellants under Sections 302/34 of the Indian Penal Code is converted into under Section 304 (2) of the Indian Penal Code. Appellant Mathura Prasad has remained in jail for about three years and other appellants have also remained in jail for some time. Appellant Mathura Prasad is alleged to have assaulted with gupti. Thus, he is sentenced to the period already undergone and he is awarded fine of Rs. 8,000/-. Appellant Jamuna Ram is alleged to have assaulted with brickbats and appellants Mahadeo Prasad and Chabilal Prasad are alleged to have assaulted with lathi but the Doctor has found only one injury caused by hard and blunt substance and as such they are also sentenced to the period already undergone and they are also fined Rs. 4,000/- each. The fine must be paid within a period of three month-from today and in default of payment of fine they are ordered to undergo R.I. for four years. The conviction and sentence of the appellant under other sections of the Indian Penal Code passed by trial Court are hereby set aside. 4,000/- each. The fine must be paid within a period of three month-from today and in default of payment of fine they are ordered to undergo R.I. for four years. The conviction and sentence of the appellant under other sections of the Indian Penal Code passed by trial Court are hereby set aside. The fine will be paid in the form of Kisan Vikas Patra in the name of Sushila Devi, widow of the deceased. She will furnish form of Kisan Vikas Patra duly filled up before the trial Court. The appellants will collect the from the trial Court and shall purchase the Kisan Vikas Patra and deposit in the trial Court and the trial Court will handover the same to Sushila Devi. The entire process must be completed within aforesaid three months. After deposit of Kisan Vikas Patra, appellants shall be discharged from the liability of the bail bonds. The appeal is dismissed with modification as stated above.