JUDGMENT 1. - This D.B. Criminal Appeal has been filed by the accused appellants against the judgment and order dated 31.10.1998 passed by the Additional Sessions Judge, Tank (Special Judge Communal Riots Cases) in Sessions Case No. 33/93 whereby the accused appellant Om Prakash has been convicted for the offences punishable under Sections 302 read with Section 34 and 323 IPC. Under Section 302/34 he has been sentenced to imprisonment for life and a fine of Rs. 1,000/e in default of payment of fine, to further undergo rigorous imprisonment for two months and for the offence under Section 323 IPC sentenced for three months rigorous imprisonment. Whereas; appellants Lallu Lal and Dinesh Kumar have been convicted for the offence punishable under Section 302 read with 34 IPC and sentenced to imprisonment for life and a fine of Rs. 1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months. 2. In short, the facts of the prosecution case are that one Ram Babu PW 17 lodged a written report at Police Station, Niwai on 1.10.1992 to the effect that the complainant party owns a shop situated in their house. In front of this shop they had opened a stall for selling betel leaf, cigarettes etc. The accused party was on inimical terms with the informant and his family members. Accused party is also having their house near the house of the deceased. On the day of incident, since morning, accused party was not allowing to play tape recorder in the stall. In the evening at about 6.30 P.M. when Kedar was sitting in his stall accused Mahaveer Prasad, Kalu Ram, Lallu Lal, Om Prakash, Vinod Kumar, Ram Phool armed with lathis came to the cabin of Kedar and started beating him. When Ram Babu, Ramesh and their mother Prem Bai tried to intervene they were also assaulted by the accused persons. Accused appellants strangulated Kedar on account of which he lost consciousness and died on way to hospital. On the basis of the said report a formal report 318/92 was registered for the offence under Sections 147, 148, 323 and 302 IPC. The Investigating Officer proceeded to the place of occurrence and commenced investigation. Site plan and panchnama were prepared. Post mortem report was obtained. In the opinion of Medical Board, the cause of death was asphyxia caused by forceful throttling. Accused persons were arrested. The Investigating Officer proceeded to the place of occurrence and commenced investigation. Site plan and panchnama were prepared. Post mortem report was obtained. In the opinion of Medical Board, the cause of death was asphyxia caused by forceful throttling. Accused persons were arrested. Lathis were recovered at their instance. After completing the investigation charge sheet against seven persons was filed in the court of Chief Judicial Magistrate, Tonk, who committed the case to the court of Sessions Judge, Tonk where it was made over trial to the court of Additional Sessions Judge, Tonk. 3. After hearing the Public Prosecutor and counsel for the accused the trial Court framed charge against Lallu Lal, Dinesh, Om Prakash, Mahaveer Prasad and Hazari Lal for the offences under Sections 147, 452, 302, 323, 323/149 IPC and charged against Vinod Kumar and Ram Phool for the offence punishable under Section 147, 452, 302/149, 323, 323/149 IPC. All the accused persons pleaded not guilty and claimed trial. On behalf of prosecution seventeen witnesses were examined and documents/memoes Ex. P 1 to Ex. P 32 were tendered in evidence. CW 1 Chiranjilal and CW 2 Prahalad were examined as court witnesses. Statements of accused under Section 313 Cr.P.C. were recorded. They denied all the allegations. Accused Lallu Lal, Om Prakash and Dinesh Kumar have state that Kedar was in habit of playing obscene songs on his tape recorder on a very high pitch. The persons living in the vicinity were not happy about it and objected several times as the ladies were also residing in that area. Moreover, father of Lallu Lal was a heart patient. On the day of incident Kedar was playing tape recorder on a very high pitch. When Lallu Lal objected Kedar and his family members Ram Babu, Ramesh, Prem Bai and others started hurling abuses and assaulted Lallu Lal, Kalu Ram, Om Prakash, and Dinesh Kumar. They have also stated that Kedar was not strangulated by them. They have been falsely implicated in this case. Accused Mahaveer, Vinod Kumar, Ram Phool pleaded ignorance about the incident and have stated that they were not present at the place of incident. No witness has been examined on behalf of accused persons in their defence. 4. Learned Additional Sessions Judge after taking into consideration all the evidence placed before him acquitted accused Vinod Kumar, Mahaveer Prasad and Ram Phool of all the charges. No witness has been examined on behalf of accused persons in their defence. 4. Learned Additional Sessions Judge after taking into consideration all the evidence placed before him acquitted accused Vinod Kumar, Mahaveer Prasad and Ram Phool of all the charges. He also acquitted Lallu Lal and Dinesh of the offence punishable under Sections 147, 452, 323 and 323/149 IPC. Accused Om Prakash was also acquitted of the offence punishable under Sections 147 and 452 IPC, but convicted and sentenced accused appellant Om Prakash for the offence under Section 302/34 and 45 32:, IPC and appellant Lallu Lal and Dinesh Kumar for the offence punishable under section 302 read with Section 34 and sentenced as mentioned earlier. 5. We have heard the learned counsel for the appellant and public prosecutor and perused the judgment of the trial court. 6. Learned counsel submitted that according to prosecution first information report was lodged by Ram Babu on 1.10.92 at 7.00 P.M. but it was received by the Magistrate on 3.10.92. This inordinate delay in sending the report creates a serious doubt in the prosecution case. 7. Report Ex. P. 25 was lodged at Police Station at 7.00 PM. on 1.10.92 by Ram Babu; Ex. P 26 is a formal FIR 318/92 which was received by the concerning Magistrate on 3.10.92 at 12.55 P.M. It is an admitted fact that 2.10.92 was holiday being Mahatma Gandhi Jayanti. It has also come on record that accused Lallu Lal also lodged a report at P.S. Niwai about the same incident on 1.10.92 at 8.00 P.M. A cross case was registered bearing FIR No. 319/92 against the deceased Kedar and other persons of complainant party. Ex. D 7 is the certified copy of the FIR 319/92 placed on record. This report was also received by the Magistrate on 3.10.92 at 11.30 A.M. It is true that Section 157 of Code of criminal Procedure requires that - "If from information received or otherwise, an officer-in-charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report." 8. Where the FIR was recorded immediately and the investigation started on the basis of that FIR and there is not other infirmity the delay in receipt of report by Magistrate does not make investigation tainted. In the absence of any evidence showing that FIR is a latter creation no adverse inference can be drawn. There is nothing on the record to show that this FIR was a latter creation as both the FIRs were received by the Magistrate on 3.10.92. 9. Learned counsel has submitted that there were cross cases of the incident. Therefore, both the cases should have been tried together by one court. We have examined this aspect of the matter. To avoid risk of two courts coming to conflicting finding it is ordinarily desirable that the two cases should be tried separately, but by the same court, but each case must be decided on the evidence recorded in it, and the evidence recorded in another case cannot be taken into account in arriving at the decision. But if both the cases are not tried by the same court and one case is decided before the decision of other case the latter cannot be rejected on the ground that complainant party of the latter case has been held guilty and convicted. 10. The next argument advanced by Shri Bajwa is that appellants have been convicted by the trial Court on an erroneous appreciation of evidence. All the independent eye witnesses namely; PW 1 Hari Shenker, PW 2 Pappu Lal, PW 3 Shiv Narayan, PW 4 Ramavtar, PW 10 Phool Chand and PW 15 Keshra were declared hostile as they have not supported the prosecution case. The trial Court has convicted the appellants on the testimony of prosecution witnesses namely; PW 5 Prem Bai, PW 8 Mohan Lal, PW 9 Ramesh Chand and PW 17 Ram Babu. When the testimony of these four witnesses has been disbelieved by the trial court qua the other co-accused how conviction of the appellants can be based upon the statements of these witnesses. He has also submitted that as the accused party received injuries a cross case was registered against the complainant party, they have been convicted by the Additional Chief Judicial Magistrate Niwai vide his judgment dated 7.3.98 for the offence punishable under Section 323 IPC but no explanation has been given about the injuries of accused persons. He has also submitted that as the accused party received injuries a cross case was registered against the complainant party, they have been convicted by the Additional Chief Judicial Magistrate Niwai vide his judgment dated 7.3.98 for the offence punishable under Section 323 IPC but no explanation has been given about the injuries of accused persons. Therefore, it is unsafe to reply on the statements of alleged eye witnesses.Before we proceed further it will be proper to examine the nature of injuries received by the members of both the sides except deceased Kedar. (A) Injury reports of members of complainant side. (i) Injury report of Prem Bai (Ex. P 15) 1. Contusion C swelling 2/2"x2" Lat. on the mid of the fore arm simple by blunt object. 2. complaints for bodyache due to injury. (ii) Injury report of Ramesh (Ex. P 13) 1. Swelling 2" x 2" post. on the Rt. elbow joint. (iii) Injury report of Ram Babu (Ex. P 17) 1. Swelling 1/2x 172" on the occipital parietal region simple by blunt object. 2. Complaints for bodyache due to injury. (B) Injuries of accused party - (i) Injury report of accused Lallu Lal (Ex. D 3) 1. Lacerated wound 2/2"x 1/2"x 1/2'' on the left parietal prominance near ridge simple by blunt object. (ii) Injury report of accused Dinesh Kumar (Ex. D 4) 1. Lacerated wound 1'/2"x 1/2"x 1/2" on the Rt. parietal prouninance simple by blunt object. 2. Lacerated wound 1'/2"x 1/2"x 1/2" on the left occipital parietal joint simple by blunt object. 3. Swelling 1'/2 x 1/2" Lat. on the mid of the left forearm simple by blunt object. 4. Contusion c swelling 2"x1" on the medial margin of the Rt. scapula by blunt object. (iii) Injury report of Omprakash accused (Ex. D 5) 1. Abrasion l"x 1/2" on Rt. thimar prominence simple by blunt object. 2. Abrasion 1/2"x 1/22" on the left thumb, terminal phalanx simple by blunt object. 3. Contusion 2' 2" x 1" Medially on the lower ⅓rd of the Rt. thigh simple by blunt object. 4. Lacerated wound 1/2"x 1/4"x 1/4" centrally on the forehead simple by blunt object. (iv) Injury report of Kalu Ram (Ex. D 6) (1) Lacerated wound 1/2''x 1/2"x 1/4" on left front of parietal region, simple by blunt object. 11. 3. Contusion 2' 2" x 1" Medially on the lower ⅓rd of the Rt. thigh simple by blunt object. 4. Lacerated wound 1/2"x 1/4"x 1/4" centrally on the forehead simple by blunt object. (iv) Injury report of Kalu Ram (Ex. D 6) (1) Lacerated wound 1/2''x 1/2"x 1/4" on left front of parietal region, simple by blunt object. 11. First of all, we would like to discuss the legal position about the non-explanation by the prosecution, of the injuries found on the person of the accused persons. In the present case incident alleged to have taken place at about 6.30 P.M. on 1.10.92. The F.I.R. was lodged by Ram Babu at 7.00 P.M. i e. immediately after the incident. Accused Lallu Lal also lodged FIR No. 319/92 of the incident at 8.00 P.M. on the same day against six persons. After investigation police submitted final report but on protest petition cognizance was taken by the Magistrate for the offence under Section 323 IPC and the case was registered against Ram Babu. Suresh, Ramesh and Mohan and after trial he convicted all the four accused persons for the offence under Section 323 IPC but released them on probation. Appeal was filed which was allowed partly. The appellate Court acquitted Mohan Lal and Suresh but conviction and sentence was maintained as against Ramesh, Ram Bubu. As stated earlier accused Lallu Lal. Dinesh Kumar, Kalu Ram and Om Prakash received injuries in the incident as described in Ex. D 3 to Ex. D 6 respectively. According to PW 11 Dr. G.S. Rajawat all the injuries described in Ex. D 3 to D 6 were of simple in nature caused by blunt object. It is true that the prosecution witnesses have not given any explanation about the injuries. As it has been held by the Supreme Court in a case Laxmi Singh & Ors. v. State of Bihar, reported in AIR 1976 Supreme Court 2263 that - "the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where there is so clear and cogent, so independent and disinterested, so probable consistent and creditworthy, that it far outweighs the effect so omission on the part of the prosecution to explain the injuries." 12. In the present case as observed earlier that all the injuries found on the person of the accused persons were of simple in nature by blunt object. The incident had taken place at the cabin of Kedar deceased. Therefore, in our opinion, non explanation of the injuries by prosecution is not fatal to the prosecution case. 13. In this case prosecution has examined PW 1 Hari Shankar, PW 2 Pappu Lal, PW 3 Shiv Narain, PW 4 Ram Avtar, PW 8 Mohan Lal, PW 9 Ramesh, PW 10 Phool Chand, PW 11 Keshra, PW 17 Ram Babu as eye witnesses of the occurrence but except Prem Bai, Mohan Lal, Ramesh and Ram Babu all other witnesses have been declared hostile. PW 5 Prem Bai is mother. PW 8 Mohan Lal is father, PW 9 Ramesh Chander and PW 17 Ram Babu are brothers of deceased. PW 8 Mohan Lal is net an eye witness. He arrived at the place of occurence just after the incident and saw Kedar lying unconscious near his cabin. Accused persons were standing there armed with lathi. The contention of the learned counsel is two fold : Firstly; all the eye witnesses have been declared hostile except mother and two brothers of deceased, their statements should not be relied upon being interested witnesses and secondly; statements of there three witnesses have also not been believed by the trial court qua co-accused Vinod Kumar, Mahaveer Prasad, Ram Phool and Hazari Lal. Therefore, their statements regarding appellants cannot be relied upon. He has placed reliance on the cases : (1) Ugar Ahir v. State of Bihar, AIR 1965 Supreme Court 277 (2) AIR 1977 Supreme Court 673, Prem Singh v. Punjab and (3) 1992 Supp. (2) SCC 264 Biri Singh v. State of U.P. & Others .14-15. Therefore, their statements regarding appellants cannot be relied upon. He has placed reliance on the cases : (1) Ugar Ahir v. State of Bihar, AIR 1965 Supreme Court 277 (2) AIR 1977 Supreme Court 673, Prem Singh v. Punjab and (3) 1992 Supp. (2) SCC 264 Biri Singh v. State of U.P. & Others .14-15. In the case of Ugar Ahir (supra) it has been held as under:- "The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.". In the case Prem Singh (supra) it has been observed as under:- "Conviction based solely on evidence of two eye-witnesses who were brothers of deceased-Evidence of same witnesses with regard to participation of four other accused rejected by Court as unreliable-Conviction is illegal". In the case Biri Singh (supra) it has been held as under:- "Exercise of right of private defence of life and property, claimed by defence. Land in dispute in actual and physical possession of accused persons-Defence version that occurrence took place when deceased party committed criminal trespass into the land in possession of accused and exercising their legitimate right of ploughing the land by attacking on vital parts of the body of two of the accused with dangerous weapons probable-Place of occurrence attempted to be shifted by the prosecution to another land not in possession of accused by removing the dead bodies from the actual scene of occurrence. Version of both the prosecution and defence found to be highly exaggerated. In the circumstances and having regard to other infirmities in the prosecution case, High court taking the view that prosecution failed to prove its case beyond reasonable doubt and questions as to who were the aggressors and whether accused were within the limits of their right to private defence of person and property could not be conclusively ascertained. In the circumstances and having regard to other infirmities in the prosecution case, High court taking the view that prosecution failed to prove its case beyond reasonable doubt and questions as to who were the aggressors and whether accused were within the limits of their right to private defence of person and property could not be conclusively ascertained. Held, High Court's judgment does not suffer from any manifest perversity or illegality warranting interference by Supreme Court. 16-17. On the other hand, learned PP. assisted by the learned counsel appearing on behalf of the complainant has submitted that the trial Court after careful scrutiny of the statement of the three eye witnesses has held that they are injured witnesses, their presence cannot be doubted, therefore, they are trustworthy. The aforesaid judgments of the Supreme Court are not applicable in the present controversy. They have cited the following judgments to substantiate their contention (1) AIR 1971 Supreme Court 991, Ahmed Suleman Bhorat & Ors. v. State of Gujarat . (2) AIR 1974 Supreme Court 985, Kesar Singh v. State of Punjab ; and (3) AIR 1974 Supreme Court 1978, Jagdeep Singh & Another v. State of Haryana 18. In the case Ahmed Suleman Bhorat (supra) it has been held as under:- "Evidence-Credibility-Even though the Court is unable to rely fully on the evidence of prosecution witnesses with regard to some of the accused persons it can still accept the evidence of these witnesses with regard to other accused persons and hold them guilty." 19. In the case Keshar Singh (supra) it has been held as under : "In a case of triple murder, when it was difficult to accept that the appellant alone shot at each of the three deceased, but there was no doubt that he actually killed at least one, the contention that once the case of triple murder was discarded, the conviction on assumption that he committed at least one murder would be contrary to the prosecution version, was not acceptable on the facts and circumstances of the case. A criminal case is not tried down to a particular version as a civil case is by the pleadings of the parties. Courts dealing with criminal cases cannot throw the whole case over-board simply because parts of it are improbable. To hold that a version is improbable is not to disbelieve it entirely or to find it to be false. A criminal case is not tried down to a particular version as a civil case is by the pleadings of the parties. Courts dealing with criminal cases cannot throw the whole case over-board simply because parts of it are improbable. To hold that a version is improbable is not to disbelieve it entirely or to find it to be false. In a criminal case a conviction must rest on a proof so strong that the Court must be convicted that what it concludes must necessarily have happened and is not reasonable explicable in any other way." 20. In the case Jagdip Singh (supra) it has been held as under:- "Mere fact that the evidence of eye-witness has not been believed by the lower Courts as regards some accused, does not mean that their evidence as regards other accused must be rejected. Maxim falsus in uno falsus in omnibus is not of general application in India. Similarly the absence of other independent witnesses from where the offence occurred cannot avail the appellants as it has come out in evidence that the deceased was not a man of character and the villagers had no sympathy for him or it may be that the villagers refused to come forward as they considered the occurrence a family feud." 21. As stated earlier the conviction of the appellants is based upon three witnesses namely; Ram Babu, Ramesh and Prem Bai. PW 17 Ram Babu has stated that about 4-5 PM. he was standing by the side of the cabin of his brother Kedar, he was in his cabin and was playing tape recorder in a low volume. At that time Mahaveer Prasad, Lallu Lal, Vinod Kumar and Ram Phool arrived there and asked him to stop the tape recorder and threatened to kill him. Kedar switched off the tape recorder. Again at 6.00 P.M. when Kedar was in his cabin he (Ram Babu) was standing there. Prem Bai was behind the cabin, Ramesh was sittina in his shop of General Merchandise. Om Prakash, Dinesh, Lallu Lal, Vinod, Mahaveer, Kalu Lal, Ram Phool arrived there armed with lathis, dragged Kedar from his cabin and started assaulting him with lathis. Accused Om Prakash, Lallu Lal, Dinesh strangulated him. When he alongwith his mother and brother Ramesh tried to rescue Kedar, they were also assaulted. Om Prakash, Dinesh, Lallu Lal, Vinod, Mahaveer, Kalu Lal, Ram Phool arrived there armed with lathis, dragged Kedar from his cabin and started assaulting him with lathis. Accused Om Prakash, Lallu Lal, Dinesh strangulated him. When he alongwith his mother and brother Ramesh tried to rescue Kedar, they were also assaulted. At that time his father Mohan Lal also arrived at the place of occurrence. All of them removed Kedar from that place in a jeep. When they reached hospital Kedar was declared dead. The statement of Ram Babu has been corroborated by PW 5 Prem Bai and PW 9 Ramesh Chander. As we have already observed that cross case was registered on the basis of the report lodged by Lallu Lal, therefore, it is an admitted position that incident had taken place. All the three witnesses namely; Ram Babu, Prem Bai and Ramesh are injured witnesses. Their presence at the place of occurrence cannot be doubted. The accused persons were well known to the witnesses. There was some dispute about playing the tape recorder on a high volume by Kedar. They did not have any reason to omit the real culprits and implicate falsely the accused persons. The information about the incident was lodged within half an hour after the incident wherein full details about the incident was given. It has been mentioned that Kedar was strangulated by the accused appellant. There may be some improvements or variations made by the witnesses in their earlier and latter statements but it is not sufficient to make these statements untrustworthy. We are also of the view that the statements of these witnesses cannot be discarded simply on the ground that they have been disbelieved by the trial court qua other co-accused, or the other alleged eye witnesses have been declared hostile looking to the facts and circumstances of the case, the place of incident and cause of death of deceased Kedar. Learned counsel has submitted that Occular Evidence is not corroborated by the medical evidence. There are material discrepancies. The story of the prosecution that deceased Kedar was strangulated by three persons cannot be believed. It is at all not possible for three persons to strangulate a person simultaneously by their hands. There are material discrepancies and contradictions in the statements of Dr. G.S. Rajawat and Dr. Shanti Lal Gupta. There are material discrepancies. The story of the prosecution that deceased Kedar was strangulated by three persons cannot be believed. It is at all not possible for three persons to strangulate a person simultaneously by their hands. There are material discrepancies and contradictions in the statements of Dr. G.S. Rajawat and Dr. Shanti Lal Gupta. Therefore, it casts a shadow of doubt about the involvement of all the accused appellants in the crime.22. There is no controversy about the fact that Kedar died in the same evening. Post mortem was conducted by a Medical Board. The following to injuries were found on the persons of the deceased Kedar:- (1) Abrasion 3 cm x 1 cm tr. just above (R) eye brow. (2) Abrasion 1 cm x 1 cm outer angle of (R) eye. (3) Abrasion 1 cm 1 cm near hair line above (R) eye brow. (4) Abrasion 6 cm x 1/2 in front of chest oblique from middle of (L) clavicle to the sternum. (5) Abrasion 2 cm x 2 cm at the level of 12th vertebrae, on back, in mid line. (6) Lacerated wound 4 cm x 1/2 cm x 1/4 cm - submental region transverse. (7) Abrasion with swelling 4cm x 4cm back of point of (R) shoulder. (1) There is swelling of neck as a whole in front part with dark bends of discolouration on left side. (2) Abrasion - 1 cm. below and on (R) side of thyroid cartilege. (3) Bends of discolouration (Ft) side neck Neck (i) Hyoid bone fractured (ii) complete dislocation of hyoid bone with laceration of larynx (iii) neck muscle bruished at the level of thyroid cartilege upto the submental region. Cause of death : Cause of death is asphyxia by forceful throttling. 23. To prove the injuries described in Ex. P 8, prosecution has examined PW 11 Dr. G.S. Rajawat and PW 12 Dr. Shanti Lal Gupta, members of the Board. It is true that there is some discrepancy in the statement of Dr. Rajawat because at the first instance he stated that cause of death was strangulation resulting into asphyxia but replying to a querry made by the court, he stated that cause of death was injury No. 6, the lacerated wound found on the neck of the deceased. It is true that there is some discrepancy in the statement of Dr. Rajawat because at the first instance he stated that cause of death was strangulation resulting into asphyxia but replying to a querry made by the court, he stated that cause of death was injury No. 6, the lacerated wound found on the neck of the deceased. He again changed his version and stated that cause of death was due to fracture of hyoid bone which was a result of injury No. 6. But Statement of Dr. Gupta is very clear and specific about the cause of death. He has stated that. ekSr dk dkj.k ne ?kqVuk tks fd xyk nckus ls gqvk FkkA In cross-examination he has stated ckgjh pksV ua0 6 dqpys ?kko ds dkj.k (HYOID BONE) dk QzsDpj ugha gqvk FkkA 24. The learned trial Court after examining in details held that cause of death was asphyxia by forceful throattling as mentioned in the post-mortem report. We agree with the finding of the trial Court and see no reason to take a different view.25. Now the next question is whether all the appellants are responsible for causing this injury. All the three eye witnesses have specifically stated that Kedar was strangulated by accused appellants Om Prakash, Dinesh and Lallu Lal. Therefore, we are convinced on the basis of medical and occular evidence that Kedar was strangulated by all the three appellants.26. Learned counsel has submitted that this case does not fall under section 302 IPC because there could not have been any intention on the part of the accused appellants to commit murder. We agree with the submission of the learned counsel. There is evidence to the effect that accused appellants were unhappy with Kedar because he used to play tape recorder on a high volume, as Ram Babu stated in his statements that at about 4-5 P.M. Mahaveer Prasad, Kalu Lal, Vinod Kumar, Ram Phool came to the cabin of Kedar and asked him to stop playing tape recorder. Again at about 6.00 PM. appellant along with other persons arrived at the place of occurrence assaulted Kedar. It appears that even after protest by the accused persons at 4.00 P.M. Kedar did not stop playing tape recorder on high volume, therefore, appellants again came to Kedar, during that o time this incident had taken place. Again at about 6.00 PM. appellant along with other persons arrived at the place of occurrence assaulted Kedar. It appears that even after protest by the accused persons at 4.00 P.M. Kedar did not stop playing tape recorder on high volume, therefore, appellants again came to Kedar, during that o time this incident had taken place. According to prosecution at that time all the accused were armed with lathi, but, none of them caused any injury by lathi. In our opinion, there was no intention to cause death. As the cause of death is asphyxia by throttling in a spur of moment, there is only knowledge that it is likely to cause death. Therefore, on over all assessment of evidence, circumstances under which this incident had taken place, this case falls under Section 304 Part-II and not in Section 302 IPC.27. In view of the above discussions, this appeal is partly allowed. We set aside the conviction and sentence recorded against the accused appellants under Section 302 IPC and convict them under Section 304 Part-II 20 read with Section 34 IPC and sentence them to suffer rigorous imprisonment for a period of 5 years, and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo sentence of one year rigorous imprisonment. There is no necessity for awarding sentence for the offence under Section 323 IPC to Om Prakash appellant.Appeal partly allowed. *******