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2000 DIGILAW 312 (HP)

UDEY RAM v. STATE OF HIMACHAL PRADESH

2000-12-08

K.C.SOOD, KAMLESH SHARMA

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JUDGMENT Kuldip Chand Sood, J.—The judgment of learned Sessions Judge, Sirmaur District at Nahan dated October 29, 1999 is under challenge in these four appeals. The appellants in these appeals have been convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment. The appellants are also to pay fine of rupees 3,000 each. In the case of default in the payment of fine, the appellants are to suffer further imprisonment for one month. Prosecution case. 2. Dalip Singh (Al), Jagdish (A2), Kamal Singh (A3), Munshi Ram (A4), Bishan Singh (A5), Udey Ram (A6) and Prem Singh (A7) are residents of village Jamna, Tehsil Paonta Sahib in the District of Sirmaur. The residents of this village are the right holders and have grazing rights over the Government land in the Department of Forest near this village (hereinafter referred to as the common land). There are about 32 families in the village. Accused party wanted separation of their share in this common land. The complainant party resisted this move. The relations between the parties were strained. On July 16, 1998, a meeting was held in the house of Shri Rattan Singh of the complainant party in which it was decided to call the accused party on the next day morning, i.e, July 17, 1998 on the spot and separate their portion of the land. The accused party was informed about this decision and asked to be present on the spot on the morning of July 17, 1998. Both the parties assembled on the spot at about 6.00 or 6.30 a.m. on July 17, 1998. The complainant party consisted of Budh Singh (PW 1), Ex-pradhan of Gram Panchayat Jamna, Rattan Singh (deceased), Ran Singh (PW2), Munshi Ram (PW3), Kanshi Ram, Liaq Ram, Mukhia Ram and Narain Singh, whereas, accused party consisted of accused Dalip Singh, Jagdish, Kamal Singh, Udey Ram and Prem Singh. The complainant party assembled at the Government land and all the accused at a distance of 20 to 25 mtrs. below the complainant party. The complainant party asked the accused to come closer so that discussions could be held but the accused, instead, asked the complainant party to send Rattan Singh. Rattan Singh went near the accused party. He was attacked by Dalip Singh (Al) with a Darat and caused injuries on his leg, arm and chest. below the complainant party. The complainant party asked the accused to come closer so that discussions could be held but the accused, instead, asked the complainant party to send Rattan Singh. Rattan Singh went near the accused party. He was attacked by Dalip Singh (Al) with a Darat and caused injuries on his leg, arm and chest. The other accused Udey Ram also attacked Rattan Singh with Darat and sticks. Rattan Singh struggled but fell down bleeding profusely. On seeing Rattan Singh being attacked by the accused, Budh Singh-and Ran Singh rushed to rescue Rattan Singh and raised alarm. However, by the time Budh Singh and Ran Singh could reach, all the accused fled away. Rattan Singh died on the spot. Police Station Paonta Sahib was informed about the occurrence by Budh Singh. A police party headed by Sub Inspector Dhani Ram, reached the place of occurrence, found dead body of Rattan Singh lying on the spot, recorded the statement of Budh Singh under Section 154 of the Code of Criminal Procedure and sent the same for recording of the formal First Information Report. Sub Inspector Dhani Ram prepared the Inquest Report and sent the dead body for post mortem. He also took into possession blood stained earth, cap and shoes of the deceased. Sub Inspector Dhani Ram, while returning to Police Station, found Prem Singh (A7) and Jagdish (A2) at village Kafota and brought them in his jeep to the Police Station. Accused Dalip Singh (Al), Munshi Ram (A4), Udey Ram (A6) and Bishan Singh (A5) were already in the Police Station. All of them were having injuries on their person. All of them were arrested. Kamal Singh (A3) was arrested at Paonta Sahib on July 19, 1998. 3. Post mortem on the dead body was conducted by Dr. S.N. Sachan (PW7), then Medical Officer at Civil Hospital, Paonta Sahib on July 18, 1998. Dr. Sachan found the following injuries on the dead body of Rattan Singh: (i) 21 x 10 x 4 cm. gapping wound and with sharp edge and clotted blood lying over lower 1/3 of left leg 24 Cm. from base of heel. It was incised wound and left fibula was incised through and through. (ii) Incised wound 5x2x2 cm. margins were clear cut and base was full of clotted blood. Wound was lying over interior surface of left fore-arm 12 cm. from base of heel. It was incised wound and left fibula was incised through and through. (ii) Incised wound 5x2x2 cm. margins were clear cut and base was full of clotted blood. Wound was lying over interior surface of left fore-arm 12 cm. away from the lower end of radius. (iii) Incised wound 3x1x1/2 cms. with abrasion lying 4 cm. away from this wound. Margins were clear cut with base was full of clotted blood. Wound lying over right side of fore-head. (iv) Incised wound 3 x 8 x 1.2 cms. was lying over lateral side of right side of chest over 5th, 6th and 7th ribs. Margins were clear cut and base was full of clotted blood." 4. In the opinion of Dr. Sachan, deceased died due to haemorrhage from ruptured arteries and veins leading to shock and consequent death. It is the further opinion of the Doctor that all the injuries were inflicted with sharp edged weapon and death occurred between 29 to 40 hrs. of the post mortem examination. 5. Accused Dalip Singh (Al), Munshi Ram (A4), Udey Ram (A6) and Bishan Singh (A5) were also found to have sustained injuries on their person. They were medically examined by Dr. Amitabh Jain (PW 12) on July 18, 1998. The injuries sustained by these accused were simple and caused with blunt weapon. 6. During the course of investigation, Darat each was recovered at the instance of Dalip Singh (Al) and Udey Ram (A6) whereas, stick was recovered at the instance of Prem Singh (A7). 7. All the seven accused were charged, after their committal, for offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code. 8. The prosecution in support of the case examined fourteen witnesses. The accused in their statement under Section 313 of the Code of Criminal Procedure, admitted that relations between the complainant party and accused were strained because of the demand of the accused for separation of their share in the Government land for the purpose of cutting grass. However, it was maintained by the accused that Kamal Singh (A3), Prem Singh (A7) and Jagdish (A 2) were not present on the spot or in any way participated in the occurrence. However, it was maintained by the accused that Kamal Singh (A3), Prem Singh (A7) and Jagdish (A 2) were not present on the spot or in any way participated in the occurrence. All three of them pleaded alibi The remaining four accused, namely, Dalip Singh (Al), Munshi Ram (A4), Bishan Singh (A 5) and Udey Ram (A 6) admitted their presence on the spot but, according to the version of these accused, the complainant party consisting of 15 to 20 persons, including deceased Rattan Singh and Budh Singh (PW 1), attacked the accused and started manhandling and beating them. According to them Rattan Singh, deceased, attacked Dalip Singh with his Darat. Dalip Singh fell down. Rattan Singh then attacked Bishan Singh with the same Darat and Dalip Singh in order to save Bishan Singh others gave a darat blow on the leg of Rattan Singh, thereafter, all of them left the place and came to Police Post Rajban to lodge the report. However, they were made to sit in the Police Post and were arrested by Sub Inspector Dhani Ram late in the evening. The accused denied recovery of any darat or stick from them. 9. Learned Sessions Judge after appraising the evidence produced by the prosecution and taking into consideration the defence of the accused in their statement under Section 313 of the Code, concluded that possibility of three of the accused Jagdish (A2), Kamal Singh (A 3) and Prem Singh (A 7) being not present at the place of occurrence and having taken no part in the occurrence cannot be ruled out and giving benefit of doubt, acquitted them. 10. Learned trial Judge found that relations between the parties were strained regarding the rights of the accused in the common land. The parties assembled at the spot at about 6.00 or 6.30 a.m. on July 17, 1998, when Dalip Singh (A 1) and Udey Singh (A 6) inflicted fatal injuries on the person of Rattan Singh with Darat which ultimately caused his death. Learned Sessions Judge also concluded that Rattan Singh fell down because of the injuries sustained by him. From the injuries sustained by .deceased, learned Sessions Judge concluded that all the four appellants participated in the occurrence and, accordingly proceeded to convict the accused, as noticed earlier. 11. Learned Sessions Judge also concluded that Rattan Singh fell down because of the injuries sustained by him. From the injuries sustained by .deceased, learned Sessions Judge concluded that all the four appellants participated in the occurrence and, accordingly proceeded to convict the accused, as noticed earlier. 11. Feeling aggrieved by their conviction, Dalip Singh (A 1), Munshi Ram (A 4), Bishan Singh (A5) and Udey Ram (A6) have filed the present separate appeals. 12. We have heard Mr. Anup Chitkara, learned Counsel for the appellants, Mr. B.P. Sharma, learned Additional Advocate General and Additional Public Prosecutor instructed by Mr. J.K. Verma, learned Assistant Advocate General. We have also gone through the record and re-appraised the entire evidence with the help of learned Counsel for the parties. 13. Mr. Anup Chitkara, learned Counsel for the accused-appellants, herein, argued the case with considerable tenacity and submitted that conviction of the accused-appellants is liable to be set-aside for the reasons: (a) Genesis or origin of the dispute has been suppressed by the prosecution; (b) The prosecution has failed to explain the injuries found on the vital parts of the three accused; (c) The evidence of the eye witnesses does not inspire confidence and cannot be believed; (d) The testimony of prosecution witnesses, in view of the admitted enmity between the complainant party and the accused has to be read with extreme caution; (e) There is no evidence that there was any premeditation on the part of the accused party or the injury was caused in furtherance of any common intention; (f) There is no evidence that Bishan Singh inflicted any injury on the person of the deceased or dragged him; (g) Munshi Ram (A4) and Bishan Singh (A5) are not attributed any role in causing of the injuries sustained by deceased Rattan Singh, except dragging of deceased after the infliction of fatal injuries which story has been dis-believed by the learned Sessions Judge and not proved. (h) On the face of the evidence, Section 34 of the Indian Penal Code is not attracted. (h) On the face of the evidence, Section 34 of the Indian Penal Code is not attracted. There was no intention on the part of Dalip Singh to either kill the deceased Rattan Singh or cause such injuries as are likely to cause the death or could cause death, particularly, when Dalip Singh had inflicted only one injury that too on the leg, a non-vital part of the body, to save Bishan Singh (A5) from the darat blow of Rattan Singh; (i) The weapon(s) carried by accused, i.e., darat and lathi are the agricultural implements and usually carried by the villagers and, therefore, it cannot be said that accused had come with premeditation to cause or inflict injuries on any one, including the deceased Rattan Singh; (j) There was no reason for the accused to have attacked Rattan Singh particularly when parties had assembled for the separation of the share of the accused party in the common land as demanded by the accused. 14. On the other hand, Mr. B.P. Sharma, learned Additional, Advocate General submitted that the accused-appellants have rightly been convicted by the learned Sessions Judge, particularly when it is proved and not disputed that fatal injuries were inflicted by the accused Dalip Singh (A,l)- and other accused also participated in the beating of Rattan Singh deceased. (i) Enmity between complainant party and accused. 15. It is the admitted position that forest land near village Jamna was used for common purposes, including right to grass by the residents of village Jamna. It is also admitted that there were 32 families in this village including three families of the accused. The three families of the accused wanted their share to be separated in the common land. However, complainant party objected to such separation. Budh Singh (PW 1), one of the members of the complainant party stated: ".....Adjoining to our village, there is one plot owned by the Government and Forest Department has planted chil trees on it. 32 families of village Jamna has right of grass over this land. I know all the accused present in the Court. They also belong to village Jamna." 16. To a similar effect is the statement of Ran Singh (PW 2), another member of the complainant party who states: “.....All the accused persons present in the court are from my village. 32 families of village Jamna has right of grass over this land. I know all the accused present in the Court. They also belong to village Jamna." 16. To a similar effect is the statement of Ran Singh (PW 2), another member of the complainant party who states: “.....All the accused persons present in the court are from my village. In our village, there is a Government land in which the Government has planted pine (chil) trees. The said land is being used by 32 families of our village. All the villagers, i.e., 32 families of the village used to cut grass in equal shares. This tradition is coming on much before the date of occurrence." 17. Munshi Ram (PW 3) also one of the members of the complainant party stated that there was dispute regarding the cutting of the grass on this land between 29 families on one side and three families of the accused on the other side for the last over 7/8 years. According to Munshi Ram: "Dispute about cutting of grass between 29 families and three families of the accused is for the last 7/8 years." 18. Budh Singh (PW 1), Ran Singh (PW 2), Munshi Ram (PW 3) unambiguously admitted that son of Munshi Ram, who then was in the Army, filed a complaint against the complainant party before the S.D.M. Paonta Sahib through his Commanding Officer regarding this very land alleging that three families of the accused were not permitted to cut grass from this land in which members of the complainant party and others were summoned by the S.D.M. Paonta Sahib. It is the evidence of Budh Singh that he alongwith Rattan Singh, Ran Singh andothers was summoned by the S.D.M. Paonta Sahib on the complaint made by son of Munshi Ram though he denies the suggestion that the complaint was lodged as accused were not being permitted to cut the grass from the common land. Ran Singh (PW 2) also admitted this fact in his statement. Ran Singh (PW 2) also admitted this fact in his statement. Munshi Ram (PW 3) admitting the fact of complaint made by son of Munshi Ram to the S.D.M. Paonta Sahib, stated that "he along with Budh Ram, Rattan Singh and Liaq Ram and others were summoned by the S.D.M. Paonta Sahib." Though he denied the suggestion that the complainant party had formed a committee and used to sell the grass out of this land and money was kept in a fund operated upon by the complainant party and Rattan Singh deceased. Thus, there is overwhelming evidence to show that there was long standing dispute between the complainant party and the accused regarding the rights of accused to cut grass from the common land and because of which relations between accused and complainant party were strained. The lodging of the complaint by accused with S.D.M. Paonta Sahib further aggravated situation and the relations between the complainant party and the accused further deteriorated. (ii) Meeting by the complainant group. 19. It is the case of the prosecution that in view of the persistent demand of three families of the accused, a meeting was held by the complainant party in the house of Rattan Singh on July 16, 1998 to resolve the issue. In this meeting, though accused were not present, it was decided by the complainant party to separate the share of the accused in the common land for the purpose of cutting grass. It is the evidence of Ran Singh (PW 2) that though majority of the villagers, i.e., 29 families objected to the separation of the share of the accused families but ultimately, "inhabitants of 32 families decided to settle this issue" and a meeting was held on July 16, 1998. In this meeting, it was decided that the issue be resolved on the next day morning at the spot in conformity with the wishes of the accused families. Budh Singh (PW 1) in his cross-examination stated thus on 16.7.1998, in the meeting at the house of Rattan Singh, S/Shri Kanshi Ram, Munshi Ram, Liak Ram, Narain Singh, Mukhia Ram and myself were present (all members of the complainant party) and there we had decided to give to the accused a definite portion of the ghasan in the morning. Budh Singh (PW 1) in his cross-examination stated thus on 16.7.1998, in the meeting at the house of Rattan Singh, S/Shri Kanshi Ram, Munshi Ram, Liak Ram, Narain Singh, Mukhia Ram and myself were present (all members of the complainant party) and there we had decided to give to the accused a definite portion of the ghasan in the morning. The accused were informed the same night about the decision taken at the house of Rattan Singh and they were asked to be present on the spot." According to Munshi Ram (PW 3), again member of complainant party, accused "in the month of July, 1998 raised objection to this equal share and expressed their desire to have their share separated from other families. In this behalf, a meeting was kept on 16.7.1998 during the evening hours but despite their awareness of this fact, they did not attend the meeting. However, we decided to go to the spot on the next morning where accused persons will also be available and the matter will be settled there/ Munshi Ram in his cross-examination stated that in the meeting held on 16.7.1998 in the house of Rattan Singh, it was decided that the share of the accused was to be separated next day morning though he denied the suggestion that accused were informed by the complainant party to come to the spot next day morning for the purpose of separation of their share. Munshi Ram apparently is not speaking whole truth. As noticed earlier, Budh Singh (PW 1) admitted that the complainant party informed the accused about the decision and asked them to come to the spot next day morning. 20. In view of the evidence noticed above, it is proved that a meeting of the complainant party was held in the house of Rattan Singh deceased in which accused were not present. In this meeting, ostensibly, the complainant party decided to separate the share of the accused families in the common land for the purpose of cutting grass and accused were informed that they should be present on the spot next day morning so that their share is separated. It is also the version of the accused, as given in the statement of Dalip Singh (Al) under Section 313 of the Code of Criminal Procedure. It is also the version of the accused, as given in the statement of Dalip Singh (Al) under Section 313 of the Code of Criminal Procedure. According to Dalip Singh (Al), on the night of 16th July, 1998, Budh Singh informed the accused that they should come in the morning in the Ghasan and as per the decision of the Panchayat, it would be demarcated and given to them. It is pursuant to this invitation that he, Udai Singh, Bishan Singh and Munshi Ram went to the spot and sat in the Bas of Munshi Ram which is adjacent to the common land. It thus is established : (a) Meeting of the complainant party was held in the house of Rattan Singh to resolve the issue of separation of the share of accused in the common land for the purpose of cutting grass; (b) None from the three families of the accused were invited to this meeting; (c) Accused were invited to be present on the spot by the complainant for separation of their share. (iii) Assembly of the complainant party at the place of occurrence. 21. Now, according to the prosecution case, the complainant party consisting of eight members and accused party consisting of seven persons assembled on the spot for the purpose of separating the share of the accused families on the morning of 17th July, 1998. It is the further case of the prosecution that the complainant party consisting of Budh Singh, Liaq Ram, Kanshi Ram, Mukhia Ram, Ran Singh, Ratti Ram and Narain Singh etc., reached the Ghasan at about 6/6.30 a.m. and they found that accused Al to A7 present on the spot. (iv) Genesis of occurrence. 22. The complainant party invited the accused, who were sitting on the lower side of the complainant party for discussion but the accused asked the complainant party to send Rattan Singh for discussion. When Rattan Singh went near the accused party, he was attacked by Dalip Singh (Al) with Darat and caused injuries on his leg. The other accused Uday Ram (A6) also attacked Rattan Singh with darat causing injuries on his arm and chest. Accused Prem Singh attacked Rattan Singh with a stick and hit him on his leg. Rattan Singh fell down. The other accused dragged Rattan Singh. Budh Singh and Ran Singh rushed to rescue Rattan Singh and raised alarm. The other accused Uday Ram (A6) also attacked Rattan Singh with darat causing injuries on his arm and chest. Accused Prem Singh attacked Rattan Singh with a stick and hit him on his leg. Rattan Singh fell down. The other accused dragged Rattan Singh. Budh Singh and Ran Singh rushed to rescue Rattan Singh and raised alarm. All the accused in the meanwhile fled away. 23. The genesis of the occurrence as narrated by Munshi Ram (PW 3) in his testimony is that Ran Singh, Budh Singh and Rattan Singh, after the arrival of the complainant party, sat on the up-hill side about 15-20 mtrs. away from the accused party whereas, he and other members of the complainant party sat at a distance of about 30-40 mtrs. from the place where Budh Singh and Ran Singh were sitting. He further stated that Budh Singh asked accused persons to come up and decide the matter but the accused persons asked Rattan Singh to come down. Rattan Singh on this request came down the hill where accused were sitting. Thereafter, Budh Singh raised alarm that Rattan Singh had been attacked by the accused party and asked them to come down. All members of the complainant party rushed to the spot and when they reached, they saw Rattan Singh in a injured condition and blood was oozing from his injuries. According to him, "when we reached the spot all the accused persons ran away from the spot after taking away their respective weapons. At that time, accused Dalip Singh was having darati and Uday Ram was having Darat and Prem Singh was having lathi with him. Rattan Singh died on the spot due to the injuries sustained by him." According to Budh Singh (PW 1), he alongwith Rattan Singh, Ran Singh, Munshi Ram, Liak Ram, Narain Singh, Kanshi Ram and Mukhia Ram came to the common land on the morning of 17th July, 1998 to settle the dispute and found accused party consisting of Al to A7 already present on the spot. He asked the accused to sit on a particular place of the plot for the purpose of discussions but accused continued to sit down quietly where they were sitting and asked him to send Rattan Singh for discussions. He asked the accused to sit on a particular place of the plot for the purpose of discussions but accused continued to sit down quietly where they were sitting and asked him to send Rattan Singh for discussions. It is his further evidence that Rattan Singh came down near the place where the accused were sitting and he alongwith Ran Singh sat at a little distance from the accused. According to this witness, other members of the complainant party, namely, Kanshi Ram, Munshi Ram, Liak Ram, Mukhia Ram and Narain Singh sat at a considerable distance from the accused. This witness further stated that moment Rattan Singh reached the place where the accused were sitting, he was attacked by Dalip Singh with Darat on his leg. Thereafter, Uday Ram attacked Rattan Singh with darat on his arm and chest. The other accused dragged Rattan Singh downwards. Rattan Singh in his defence, struggled with the accused and "in that process four accused also sustained minor -injuries". He then called Narain Singh, Kanshi Ram etc., who were sitting at a distance. All the members of the complainant party came down. Rattan Singh was seriously injured and the accused fled away from the place. Rattan Singh succumbed to his injuries on the spot itself and he informed the police from village Jamna. In cross-examination, he denied the suggestion that complainant party consisted of fifteen persons and that Jagdish, Kamal and Prem Singh (A2), (A3) and (A7), respectively, were not present on the spot. He also denied the suggestion that when four of the accused, Al, A4, A5 and A6 reached the spot pursuant to the request of the complainant party near the Bas of Munshi Ram, the complainant party attacked them and that Udey Ram and other two accused were given beatings by Rattan Singh and other members of the complainant party and Rattan Singh attacked Dalip Singh with his Darat. Ran Singh (PW 2) in his evidence stated that when the complainant party reached the spot, accused were already present. Budh Singh asked the accused to come closer for discussions. However, accused insisted that Rattan Singh should be sent down and then they will settle the issue by discussions. He also maintained that he alongwith Budh Singh and Rattan Singh were sitting at a distance of about 10-15 mtrs. Budh Singh asked the accused to come closer for discussions. However, accused insisted that Rattan Singh should be sent down and then they will settle the issue by discussions. He also maintained that he alongwith Budh Singh and Rattan Singh were sitting at a distance of about 10-15 mtrs. from the accused and other members of the complainant party were sitting at a distance of about 20-25 mtrs. away from them. On the asking of accused, Rattan Singh came near the accused party but all of them attacked him. It is his evidence that at that time, accused Dalip Singh and Udey Ram were armed with Darats and Prem Singh was armed with a Lathi. First of all, accused Dalip Singh gave a darat blow to Rattan Singh on his arm and Prem Singh also assaulted Rattan Singh with Lathi and the other accused pounced upon Rattan Singh and dragged him from their side. After seeing this, he and Budh Singh rushed to rescue Rattan Singh. Budh Singh also called other members of the complainant party who were sitting slightly away from them and rushed to the place of occurrence but, in the meanwhile, the accused fled away. It is the further evidence of this witness that accused while grappling with the deceased sustained minor injuries on their person. Rattan Singh died on the spot succumbing to the injuries sustained by him. 24. From the evidence discussed above, it is apparent that accused had arrived on the spot for the separation of their share in the common land for cutting grass at the asking of the complainant party and therefore, there could be no reason for them to attack Rattan Singh or any other member of the complainant party. It is the own version of the prosecution that the accused had been informed the previous night that their share would be separated. Therefore, the matter was being resolved to the satisfaction of the accused party. It is difficult to believe that accused party would attack Rattan Singh without a word having been said either by the accused or the complainant party. Undoubtedly, the unvarnished version of the genesis of the occurrence has not been stated by the complainant party. We are of the view, on the appraisal of the evidence, that the genesis of the occurrence has been suppressed and doctored by the prosecution. Undoubtedly, the unvarnished version of the genesis of the occurrence has not been stated by the complainant party. We are of the view, on the appraisal of the evidence, that the genesis of the occurrence has been suppressed and doctored by the prosecution. Neither the complainant party nor the accused had come forward with the true and correct facts leading to the occurrence. 25, Learned Counsel for the accused submitted that when the share of the accused families was being partitioned, as desired by the accused according to the own version of the prosecution, then there was no reason much less motive for the accused to attack Rattan Singh. He further submitted that on the other hand, the complainant party in a meeting held on the evening of 16.7.1998 in the house of Rattan Singh, had decided to teach accused party a lesson by giving them beatings and therefore, invited them ostensibly for partitioning their share in the common land for the purpose of cutting grass and when they were sitting in the Bas of Munshi Ram (A4), the complainant party attacked them and it was only to save accused party that Dalip Singh (Al) hit Rattan Singh with darat on his leg after having received injuries on his head from the hands of Rattan Singh. He referred us to the statement of Dalip Singh recorded under Section 313 of the Code of Criminal Procedure, wherein Dalip Singh, according to the learned Counsel had given the true and correct version of the genesis of the occurrence. Dalip Singh stated thus: Thereafter, "Rattan Singh and party, comprising of 10-15 persons, reached there and instead of demarcation, they starting beating and manhandling we four persons. Rattan Singh with his darati attacked at me and I fell down, while I was lying on the ground, I saw him striking Bishan Singh and myself. I gave a darati blow on his leg. Accused Kamal, Prem Singh and Jagdish were not on the spot and they have been falsely implicated in this case. Rattan Singh with his darati attacked at me and I fell down, while I was lying on the ground, I saw him striking Bishan Singh and myself. I gave a darati blow on his leg. Accused Kamal, Prem Singh and Jagdish were not on the spot and they have been falsely implicated in this case. Just after the occurrence, we left for police post Raj ban to lodge the report, about this incident and reached there between one or two P.M. Incharge, there asked us to sit down, as the SHO had gone to the spot and told us that our report will be lodged only when the S.H.O. reaches back and he came alongwith Prem Singh and Jagdish at about 7 p.m. and took our shirts, which were blood stained into possession. In the month of July, there is lot of rain in that area, and on that date also it was cloudy and foggy and beyond 10 paces was not visible. I am innocent. I have been falsely implicated in this case." 26. Learned Counsel further submitted that immediately after the occurrence, all four of the accused came to Police Station Rajban to lodge the report about this incident but their report was not recorded and they were made to sit down and when the S.H.O. returned back from the spot alongwith Prem and Jagdish at about 7.00 p.m., he took into possession their blood stained shirts and arrested them. This would show the bona fide of the accused. 27. Mr. Anup Chitkara, further submitted that evidence of Budh Singh, Ran Singh and Munshi Ram, all members of the complainant party, is neither reliable nor acceptable. He urged that their evidence deserves to be excluded. It is true that ocular evidence of these witnesses has been disbelieved by the learned trial Judge so far presence of Jagdish (A2), Kamal Singh (A3) and Prem Singh (A7) on the spot is concerned. In result all three of them have been acquitted. Mr. He urged that their evidence deserves to be excluded. It is true that ocular evidence of these witnesses has been disbelieved by the learned trial Judge so far presence of Jagdish (A2), Kamal Singh (A3) and Prem Singh (A7) on the spot is concerned. In result all three of them have been acquitted. Mr. Chitkara also argued that all these three witnesses in order to falsely implicate Jagdish (A2), Kamal Singh (A3) and Prem Singh (A7), who were not present on the spot and Munshi Ram (A4) and Bishan Singh (A5) who though were present but did not participate in the occurrence, falsely deposed that all these accused dragged Rattan Singh after he fell down due to the injuries sustained by him in the hands of Dalip Singh. 28. We find submissions of Mr. Chitkara are well founded so far this aspect of the case is concerned. Ran Singh (PW 2) stated in his evidence that accused except Dalip Singh and Uday Ram pounced upon Rattan Singh and dragged him towards their side. Budh Singh (PW1) stated, "The deceased was dragged about 10 to 15 mtrs. The deceased was lying when he was dragged on his back". Budh Singh in his statement Ext. PW1/F under Section 154 of the Code of Criminal Procedure stated, "Remaining, i.e., Munshi Ram, Bishan Singh, Prem Singh, Jagdish and Kamal caught hold of and dragged Rattan Singh downwards jointly". Now had Rattan Singh been dragged, as alleged by the complainant party, there would have been corresponding injuries on the back of Rattan Singh but no injury was found on his back by the Doctor who conducted the post mortem of the deceased. Dr. S.N. Sachan (PW7) noticed only four injuries on the body of the deceased and none of the injuries was on the back of the deceased. No dragging injury was noticed on the body of Rattan Singh by Dr. Sachan. No dragging injuries were noticed even in the Inquest Report prepared by the Investigating Officer Ext. PW1/D and Ext. PW1/E. Learned Sessions Judge has not dealt on this aspect of the case. We notice that the photographs of the place of occurrence Ext. PW10/11 to PW10/20 show that there were stones lying on and near the place of occurrence. Sachan. No dragging injuries were noticed even in the Inquest Report prepared by the Investigating Officer Ext. PW1/D and Ext. PW1/E. Learned Sessions Judge has not dealt on this aspect of the case. We notice that the photographs of the place of occurrence Ext. PW10/11 to PW10/20 show that there were stones lying on and near the place of occurrence. If deceased was really dragged, there would have been corresponding injuries on the back of the deceased particularly when the surface where accused was allegedly dragged was stony. It may be noticed that Investigating Officer did not say a word about the dragging of the deceased by any of the accused. 29. This apart, this aspect of the case or any circumstance about the dragging of the deceased Rattan Singh was not put to the accused in their respective statements under Section 313 of the Code of Criminal Procedure. They were not asked to explain the dragging of the deceased. In this view of the matter also, the evidence of Budh Singh (PW 1), Ran Singh (PW 2) and Munshi Ram (PW 3) on this aspect of the case, cannot be read and used against the accused. (See : Sharad Birdhi chand Sarda v. State of Maharashtra, AIR 1984 SC 622). 30. It is evident that all the three prosecution witnesses who. were members of the complainant party had given coloured version of the genesis and the manner of occurrence. Their evidence regarding, the presence of A2, A3 and A7 was disbelieved by the learned Sessions Judge. Their evidence about the dragging of the deceased by the accused has not been discussed at all by the Sessions Judge nor put to the accused in their examination under Section 313 of the Code of Criminal Procedure. In fact this part of the evidence does not stand the test of the legal scrutiny. The complainant party had gone to the extent of admittedly implicating all the able bodies persons of the three families of the accused. In fact this part of the evidence does not stand the test of the legal scrutiny. The complainant party had gone to the extent of admittedly implicating all the able bodies persons of the three families of the accused. It is admitted by Budh Singh (PW 1) in his cross-examination," all the able bodied male members of the three families have been named as accused, however, one brother of Dalip Singh has not been included in the list of accused who is aged about 18-19 years of age." In these circumstances, the ocular evidence of all the three witnesses cannot be entirely accepted and relied upon. Their evidence calls for close scrutiny. 31. We find from the appraisal of the evidence that accused-appellants Al, A4, A5 and A 6 came to the spot on the invitation of the complainant party and when both the parties assembled there, something happened which resulted into altercation and sudden fight in which all the four accused-appellants and deceased Rattan Singh received injuries. It is not disputed and is admitted by the accused that injury on the leg of the deceased Rattan Singh caused by accused Dalip Singh with his darat, has cut the fibula of the left leg through and through which ultimately resulted in his death. The other two injuries, even according to the version of the prosecution, i.e., incised wound measuring 5x2x2 cms. on the left forearm and incised wound 3 x 8 x 1.2 cms. over lateral side of right side of chest over 5th, 6th and 7th ribs were caused by accused Uday Ram, though another injury as incised wound measuring 3x1x1/2 cm. was also found on the right side of the forehead but none of the witnesses speak about this injury. This injury could have been caused due to fall on the stony surface. We find it difficult to believe the prosecution case that no member of the complainant party except deceased Rattan Singh was involved in the occurrence. All the appellant-accused were examined by Dr. Amitabh Jain (PW 12) on 18.7. l9§8 at the instance of the Police and all the four appellants were found to have sustained multiple injuries on their person including scalp. Dalip Singh (Al) had sustained four injuries, Munshi Ram (A4) five injuries, Bishan Singh (A5) three injuries and Uday Ram (A6) three injuries. All the appellant-accused were examined by Dr. Amitabh Jain (PW 12) on 18.7. l9§8 at the instance of the Police and all the four appellants were found to have sustained multiple injuries on their person including scalp. Dalip Singh (Al) had sustained four injuries, Munshi Ram (A4) five injuries, Bishan Singh (A5) three injuries and Uday Ram (A6) three injuries. The injuries sustained by all these four accused appellants, we notice, were on the vital part of the body. It is significant to note that Dr. Amitabh Jain categorically stated that all the injuries sustained by four accused are different and, therefore, inflicted by different weapons and different persons. This evidence clearly shows atleast four persons from complainant party, including deceased, were involved in the occurrence. It is not the case of the prosecution that injuries sustained by appellants were self-inflicted. On the other hand, the prosecution version is that Rattan Singh, in his defence caused injuries to all the four accused. Budh Singh (PW 1) in his evidence stated thus: "Rattan Singh in his defence struggled and in that process, four accused also sustained minor injuries." 32. The probability factor shows that in a sudden quarrel, genesis of which has been suppressed, both the complainant party and accused-appellants present on the spot attacked each other. In this fight deceased Rattan Singh, as noticed earlier, and appellant-accused sustained injuries. 33. No doubt, learned Additional Advocate General submitted that the injuries sustained by the accused were minor in nature and the prosecution though not obliged to explain those injuries, has explained that these injuries were sustained by the accused during scuffle with Rattan Singh. We do not agree. There is no acceptable evidence of scuffle on record. It is difficult to imagine that seven persons two of them armed with darat scuffled with deceased and yet deceased sustained only four injuries all caused by sharp edged weapon. This apart, the medical evidence, unquestioned by the prosecution, shows that injuries on the person of accused-appellant were caused by different weapons and different persons. The injuries sustained by the accused cannot also be said to be superflous. The injuries though minor were caused on the vital part of the body. (iv) Application of Section 34 of the Penal Code. 34. The injuries sustained by the accused cannot also be said to be superflous. The injuries though minor were caused on the vital part of the body. (iv) Application of Section 34 of the Penal Code. 34. Learned Sessions Judge took a view that though "Rattan Singh died due to the injuries sustained by him given by the accused Dalip Singh and Uday Ram whereas other accused, namely, Munshi Ram and Bishan Singh had dragged the deceased while bleeding profusely. Therefore, in the absence of clear evidence as to from whose injury blow Rattan Singh died all the four accused are liable for the murder of Rattan Singh with the help of Section 34 of the Indian Penal Code." Learned Sessions Judge, apparently, has contradicted himself. On the one hand, learned Sessions Judge concluded that Rattan Singh died due to the injuries caused by Dalip Singh and Uday Ram, yet, in the next sentence, he observed that there is no clear evidence "as to from whose injury blow Rattan Singh died" and, therefore, all the four accused are liable for the murder of Rattan Singh with the help of Section 34 of the Indian Penal Code. 35. So far dragging of deceased Rattan Singh is concerned, we have already discussed this aspect of the case and found that the evidence on record negatives any dragging of the deceased by any of the accused. 36. It is well settled that common intention contemplated under Section 34 of the IPC is anterior in time to the commission of crime and obviously does not refer to the time when the act is committed. Common intention implies a pre-concert or pre-arranged plan though such plan may develop on the spot during the course of commission of the offence. Nonetheless, the plan must perceive the act constituting the offence. In other words, before a person can be roped in under Section 34 of the Penal Code, there should be definite evidence that such person had prior concert with the principal offender. Pre-dominant feature of Section 34 is element of participation and action. It is now settled that in cases where assault is not sudden, common intention may be generally presumed unless there is some evidence to indicate that there was no opportunity for the accused to have concert. Pre-dominant feature of Section 34 is element of participation and action. It is now settled that in cases where assault is not sudden, common intention may be generally presumed unless there is some evidence to indicate that there was no opportunity for the accused to have concert. On the other hand, Section 34 would not be attracted to acts committed in the course of a sudden quarrel, in the absence of evidence of proconcert amongst the accused, and every person taking part in the fight would be responsible for his individual acts. 37. In the present case as already discussed, the accused-appellants Al, A4, A5 and A6 came to the place of occurrence at the asking of the complainant party for the resolution of the dispute regarding the separation of the share of the three families of the accused to their satisfaction. Therefore, there was no motive or reason for the accused to have picked up quarrel with the complainant party. It appears a sudden quarrel took place which resulted in the altercation between the two rival groups. Had it been the object of the accused to kill Rattan Singh, all of them would have been heavily armed. As already noticed, only two of the accused Dalip Singh and Uday Ram were carrying Darats which, admittedly, are the implements of agriculture and are normally carried by the villagers to their fields. It is so admitted by Ran Singh (PW 2) when he stated in his cross-examination that "when the villagers go their fields and jungle they take with them such like darats and lathis with them". Therefore, from the mere fact that two of the accused were carrying Darats with them would not show that they had intention to kill Rattan Singh or for that reason any one else. In this a situation, Section 34 cannot be invoked to implicate all the accused present on the spot. Every person taking part in the fight would be responsible for his individual acts. The evidence on record and circumstances of the case do not indicate any pre-arranged plan on the part of the accused present on the spot to cause the injuries sustained by Rattan Singh. The injuries found on the person of deceased Rattan Singh were admittedly sustained by him in the hands of Dalip Singh and Uday Ram. The evidence on record and circumstances of the case do not indicate any pre-arranged plan on the part of the accused present on the spot to cause the injuries sustained by Rattan Singh. The injuries found on the person of deceased Rattan Singh were admittedly sustained by him in the hands of Dalip Singh and Uday Ram. Two of the accused Munshi Ram (A4) and Bishan Singh (A5) are not ascribed any specific act. In these circumstances, Section 34 would not be applicable. 38. Apex Court in Dharam Pal and others v. State of Haryana, MR 1978 Supreme Court 1492, observed : ".....A Criminal Court fastening vicarious liability must satisfy itself as to the prior meeting of the minds of the principal culprit and his companions who are sought to be constructively made liable in respect of every act committed by the former. There is no lavj which lays down that a person accompanying the principal culprit shares his intention in respect of every act which the latter might eventually commit. The existence or otherwise of the common intention depends upon the facts and circumstances of each case. The intention of the principal offender and his companions to deal with any person who might intervene to stop the quarrel must be apparent from the conduct of the persons accompanying the principal culprit or some other clear and cogent incriminating piece of evidence. In the absence of such material, the companion or companions cannot justifiably be held guilty for every offence committed by the principal offender". (Emphasis supplied) 39. We have already observed that there is nothing in the evidence or the conduct of A4 and A5 to show that there was any common intention to inflict the injuries on the person of deceased Rattan Singh which were caused by Al Dalip Singh and A6 Uday Ram in a sudden fight between the two groups. 40. The Apex Court in case Boota Singh and others v. State of Punjab, 1997 Supreme Court Cases (Cri) 904, held that each accused shall be individually liable for the injuries caused by him in assault followed by free fight. In Boota Singh, evidence on record pointed out that accused A-l gave Charan Singh a blow on his head with a gandasa resulting in his death. In Boota Singh, evidence on record pointed out that accused A-l gave Charan Singh a blow on his head with a gandasa resulting in his death. The other co-accused A-2 and A-4 did not inflict any blow on Charan Singh and accept their presence when Charan Singh was assaulted by A-1. There was no other material from which it could be concluded that they shared common intention in causing the death. In these circumstances, Their Lordships held that other co-accused were entitled to the benefit of reasonable doubt so far it related to murder of Charan Singh. 41. For the foregoing reasons and the fact that accused Munshi Ram and Bishan Singh are not attributed with any overt act, Section 34 of the Indian Penal Code cannot be invoked to fasten vicarious liability on them. Both of them are entitled to benefit of reasonable doubt and are liable to be acquitted. (v) Individual role. 42. As discussed above, Dalip Singh (Al) caused injury on the leg of the deceased Rattan Singh with his Darat as a result of which fibula of the left leg was cut through and through. The other two injuries on the left forearm and lateral side of right side of the chest were caused by accused Uday Ram (A6). Dr. Sachan (PW 7) who conducted the post mortem report, has not stated which of the injuries was fatal. He also did not say if the injuries sustained by deceased were individually or cumulatively sufficient to cause death in the ordinary course of nature. What he stated is: "All the injuries on the deceased were sufficient to cause death in the ordinary course of nature. I have conducted about 10-12 post-mortem but where the deceased had died due to darat injuries I have not conducted any other post mortem except this." We find, in the post mortem report, Dr. Sachan has not said anything about the injuries on the body of the deceased being sufficient to cause death in the ordinary course of nature. What he recorded in Part-VI of the post mortem report relating to opinion was: "In my opinion, deceased died due to hemorrhage from ruptured arteries and veins leading to shock and death. 2. Sharp edge weapon is used for inflicting wounds No. 1, 2, 3 and 4." 43. What he recorded in Part-VI of the post mortem report relating to opinion was: "In my opinion, deceased died due to hemorrhage from ruptured arteries and veins leading to shock and death. 2. Sharp edge weapon is used for inflicting wounds No. 1, 2, 3 and 4." 43. It goes without saying that in a case of multiple injuries on a person by more than one accused, it is necessary to find injury which proved fatal. Unfortunately, the evidence of Doctor, who conducted the post mortem, is of no assistance. Doctor did not say anything about the fatal injury nor was he cross-examined on this point. What he said was that all the injuries on the deceased were sufficient to cause death in the ordinary course of nature but even this is not recorded in the post mortem report. Looking at the injuries sustained by the deceased, there can be no scope of dispute that injury on the leg of the deceased caused by Dalip Singh (Al) was fatal which resulted in his death. This injury, noticed the Doctor, was a gapping incised wound lying over l/3rd of the left leg and the fibula was incised through and through. In other words, major blood vessels were damaged, arteries were cut. On the other hand, the two injuries caused by Uday Ram (A6) were on the left forearm and the right side of the chest over 5th, 6th and 7th ribs. The incised wound on the forearm was 5x2x2 cms. The bone was not cut. Similarly, injury on the chest did not cause any damage to the cartilagers walls and ribs of the thorax. As noticed by Doctor, "walls, ribs and cartilagers were normal except wound over the right side chest". The evidence on record shows that injury on the leg was caused first in time by Dalip Singh and injuries on the chest and forearm were caused later by Uday Ram. These circumstances, lead us to the conclusion that it was injury on the leg caused by accused Dalip Singh cutting fibula through and through which was fatal. 44. Nonetheless, no intention to cause death of Rattan Singh is attributable to Dalip Singh. These circumstances, lead us to the conclusion that it was injury on the leg caused by accused Dalip Singh cutting fibula through and through which was fatal. 44. Nonetheless, no intention to cause death of Rattan Singh is attributable to Dalip Singh. However, necessary knowledge that by inflicting such injuries on the person of Rattan Singh is liable to cause his death can be attributed to Dalip Singh and, therefore, offence would fall under Section 304 Part-II of the Penal Code. 45. In Hem Raj v. The State (Delhi Administration), AIR 1990 Supreme Court 2252. True and accurate version as to the origin and genesis of the occurrence was not brought on record clearly. The occurrence happened in a spur of moment and in heat of passion upon sudden quarrel. It was during the course of this sudden quarrel that appellant took out a knife and inflicted a stab wound unfortunately landed to the chest of the deceased causing an injury which in the opinion of the Medical Officer was sufficient in the ordinary course of nature to cause death. In these circumstances, Their Lordships held: “......As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without pre-meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could not be imputed with the intention to cause death of the deceased or with the intention to cause particular fatal injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300, IPC will be attracted." 46. In S.D. Soni v. State of Gujarat, AIR 1991 Supreme Court 917, it was held by the Apex Court that where it is found that even though the accused might not have the intention to cause death, though his act is done with the knowledge that it was likely to cause death then he would be considered to have committed the offence punishable under Section 304 Part II, IPC. 47. In Mavila Thamban Nambidrv; State of Kerala, 1997 Cri LJ 831, accused gave one blow with pair of scissors on vital part of body of deceased. In the circumstances, it was held that knowledge on part of accused that injury would cause death can be inferred though he might not have intention to commit murder and the conviction was altered from Section 300 to one under Section 304 Part-II. Their Lordships observed : "......After giving our careful thought to the nature of offence, we are of the considered view that the offence of the appellant would more appropriately fall under Section 304, Part-II of the Indian Penal Code. The appellant had given one blow with the pair of scissors on the vital part of the body of Madhvan and therefore, it would be reasonable to infer that he (appellant) had knowledge that any injury with the pair of scissors on the vital part would cause death though he may not have intended to commit the murder. We accordingly alter the conviction of the appellant from Section 302, IPC to one under Section 304, Part-II of the IPC." 48. In Masumsha Hasanasha Musalman v. State of Maharashtra, 2000 (1) Crimes 239 (SC), only one serious injury was found to have been caused by the appellant to the deceased while other injuries were found to have been caused during scuffle. The High Court brushed aside the medical evidence to draw an inference that there was an intention on the part of the appellant to cause all the injuries. The Doctor had opined that injury Nos. 2 to 10 which were mere abrasions or skin deep, could not have been caused by the accused and the injuries could have been caused by falling on the ground and coming in contact with a rough surface. In these circumstances, it was inferred that assault was made without intention to cause death and conviction was altered to that under Section 304, Part-II, IPC. 49. In Camilo Vaz v. State of Goa, 2000 AIR SCW 1173, accused persons armed with dandas, bottles and cycle chains visited the complainant party for giving them sound beating. No intention on the part of the accused to kill any one of the complainant party was inferable. In these circumstances, it was held that the case would fall under Part-II of Section 304 of the Penal Code. No intention on the part of the accused to kill any one of the complainant party was inferable. In these circumstances, it was held that the case would fall under Part-II of Section 304 of the Penal Code. In paras 13 and 14 of the judgment, Their Lordships observed: "13. Simon met with homicidal death. When the Khareband boys came to the house of Simon and his two brothers led by the appellant they did not come with the intention to kill anyone. They were not armed with any particular weapon to commit the murder. There was a rivalry between them and during the Arlem Festival on 1.5.1993, 2.5.1993 and 4.5.1993, there were minor fracas. In fact, the rivalry existed even much prior to these dates. They came to the house of Simon and his brothers not to commit murder but to thrash them. What transpired at the Arlem festival on the night of 4.5.1993 that they came to the house of Simon and his brothers it has not been possible to say. Only one of the brothers, namely, Victor had gone to attend the festival and returned around midnight. The brothers are from Calconda. These boys of Khareband who came to the house of the three brothers were armed with dandas, bottles and cycle chains. The purpose apparently was to beat up the brothers by giving them sound beatings but certainly not with any intention to kill anyone of them. In fact Irineu in his First Information Report to the Police (PW8/A) had stated that there was no enmity between them. In these circumstances, can it be said that the appellant has committed the offence of murder because he hit Simon on the head, a vital part of the body, with such a force with danda in his hand that Simon fell unconscious and later succumbed to his injury. To us, it appears at the most it can be said that the act of the appellant in hitting Simon was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such a bodily injury as is likely to cause death. The case of the appellant would, therefore, would fall under Section- 304, Part II, IPC. The case of the appellant would, therefore, would fall under Section- 304, Part II, IPC. Courts below did not apply their mind to this aspect of the matter in proper perspective and they were rather swayed by the fact that on account of the danda blow by the appellant, Simon died an unnatural death. There was no material on record which showed that appellant was bent upon killing Simon and "eventually death came out to be the result". This is merely a surmise of the High Court. Section 304 is as under: "304. Punishment for culpable homicide not amounting to murder-whoever comrnits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death or with imprisonment of their description for a term which may extend to ten years or with fine or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death” 14. This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) If the act by which death is caused is done with the intention of causing death or causing such bodily injury as it likely to cause death. Here important ingredient is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in Part II of Section 304, IPC as in the present case. We are also not oblivious of the fact that other four accused who were similarly convicted with the appellant with the aid of Section 149, IPC have been held guilty only for offence under Section 326, IPC." 50. In that situation case will fall in Part II of Section 304, IPC as in the present case. We are also not oblivious of the fact that other four accused who were similarly convicted with the appellant with the aid of Section 149, IPC have been held guilty only for offence under Section 326, IPC." 50. Following the ratio laid down by the Apex Court, we are of the view that Dalip Singh (Al) is liable to be convicted under Section 304-11 instead of Section 302 of the IPC. 51. So far accused Uday Ram is concerned, he is liable to be convicted for an offence under Section 324 of the IPC for having caused the injuries on the left fbrearrn and chest of deceased with darat; as discussed earlier. 52. Mr. Anup Chitkara, learned Counsel for the accused, to be fair to him, invited our attention to the recoveries of Darat made on the disclosure statement made by the accused Dalip Singh and Uday Ram. He submitted that the disclosure statements were doctored only to pad the case and implicate the accused and no such disclosure statements in fact were made by the accused. 53. We tend to agree with the submissions. We are constrained to observe that Investigating Officer has been less than fair in investigating this case. Kedar Nath (PW 5) is a witness of the disclosure statement. Fie stated in his cross-examination that Constable was recording the statement, attributed to the accused and S.H.O. was dictating those statements to him. Dr. Sachan (PW 7) stated in his examination-in-chief that injury No. 2 could not be caused by the Darats allegedly recovered at the instance of accused Dalip Singh and Uday Singh Exts. P5 and P6. He further stated that injury Nos. 2, 3 and 4 also could not have been caused with any of the darats allegedly recovered at the instance of the accused. In his own words: "......It is difficult to say that injury No. 1 can be caused by Ext. P5 and P6 for the reason the dimension of the wound and character of the wound only tell the incised wound but not this type of weapon. Injury No. 1, as shown in the postmortem Ext. PW7/A is possible with the middle portion of darat Ext. P5. Injury Nos. 2, 3 and 4 are not possible with darats Exts. P5 and P6 for the reason the dimension of the wound and character of the wound only tell the incised wound but not this type of weapon. Injury No. 1, as shown in the postmortem Ext. PW7/A is possible with the middle portion of darat Ext. P5. Injury Nos. 2, 3 and 4 are not possible with darats Exts. P5 and P6 because depth of the wound is less and there is no corresponding abrasion near to the wound. It is correct that if small inside portion of darat causes injury then there shall not be abrasion and this will apply to all the 2, 3 and 4 injuries.......” 54. It is apparent that the alleged recovery pursuant to the alleged disclosure statement of accused Dalip Singh and Uday Ram was fake. In any event, darats Exts. P5 and P6, in view of the evidence of Dr. Sachan (PW7) were not proved to be weapon of offence. 55. However, recovery of darats at the instance of accused Dalip Singh or Uday Ram pales into insignificance in view of the admitted position that injuries on the person of the deceased were caused by accused Dalip Singh and Uday Ram. 56. In result, all the appeals are accepted. Conviction of accused Munshi Ram (A4) in Appeal No. 463 of 1999, Bishan Singh (A5) in Appeal No. 461 of 1999 is set-aside and they are acquitted. Their bail bonds are discharged. They be released forthwith if not required in any other case. 57. Conviction of Dalip Singh in Criminal Appeal No. 462 of 1999 under Section 302 read with Section 34, IPC is set aside and he instead is convicted for an offence punishable under Section 304, Part-II of the IPC. 58. Conviction of accused Uday Ram in Criminal Appeal No. 460 of 1999 under Section 302r read with Section 34, IPC is set aside and he instead is convicted for an offence punishable under Section 324, IPC. 59. 58. Conviction of accused Uday Ram in Criminal Appeal No. 460 of 1999 under Section 302r read with Section 34, IPC is set aside and he instead is convicted for an offence punishable under Section 324, IPC. 59. Taking into consideration the entirety of the circumstances and the fact that genesis of the occurrence was suppressed by the complainant party, the fact that both deceased Rattan Singh of complainant party and accused received injuries on a sudden quarrel and the possibility of the complainant party having started the quarrel is not ruled out, we are of the view that the ends of justice would be met if accused Dalip Singh is sentenced to suffer rigorous imprisonment for four years and pay a fine of rupees 2,000 and in case of default in the payment of fine suffer further imprisonment for six months. Order accordingly. 60. Accused Uday Ram is sentenced to rigorous imprisonment for two years and to pay a fine of rupees 1,000. In case of default in the payment of fine, he shall suffer further imprisonment for three months. 61. The period of detention, if any, undergone by accused Dalip Singh and Uday Ram during the investigation, inquiry or-trial of this case, shall be set off against the term of imprisonment imposed on them in accordance with law. The case property shall be dealt with in accordance with the judgment of learned trial Court. Appeal partly allowed.