JUDGMENT Jawahar Lal Gupta, J. (Oral) - The two appellants along with one Bheera were tried for offences punishable under Sections 302/323/34 Indian Penal Code. Bheera was acquitted. However, the two appellants were found to be guilty. They were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/- each under Section 302 read with Section 34 Indian Penal Code. In default of payment of fine they were sentenced to further undergo rigorous imprisonment for six months each. They were also convicted under Section 323 read with Section 34 Indian Penal Code to undergo rigorous imprisonment for six months each. Aggrieved by the order of conviction the two appellants have filed the present appeal. 2. The occurrence is alleged to have taken place on August 28, 1993 at 9 P.M. The situs is village Noorwala. It is at a distance of 3 Kms. from Police Station, Sadar, Panipat. The First Information Report was recorded on August 29, 1993 on the basis of a statement Ex.PK made by Naresh Kumar PW5. This statement was recorded by Assistant Sub Inspector Zile Singh PW11 in General Hospital, Panipat at 1:30 A.M. The FIR Ex.PK/1 was initially recorded on 29.8.1993 at 1:40 P.M. vide Daily Diary Report No. 44 under Sections 307, 323 and 34 Indian Penal Code. However, later in the day, Vajinder Singh, the injured, had passed away at the Medical College and Hospital, Rohtak. Thereafter, the case was treated as being under Section 302 Indian Penal Code. The special report had reached the Judicial Magistrate on August 30, 1993 at 10 A.M. 3. The first version of the prosecution case is contained in the statement of Naresh Kumar PW5. This statement is Ex.PK. It forms the basis of the FIR. His story may be briefly noticed. 4. Naresh Kumar alleges that he along with his brother Vajinder Singh and a cousin Rajinder had gone to Naveen Kumar for taking a V.C.R. (Video Cassette Recorder). They did not meet Naveen Kumar. While coming back from village Noorwala they reached the fields of Dharambir, Sarpanch, at about 9 P.M. Four persons viz. Bheera, a milk seller, Dilshad, Inus and Shokeen ("3 brothers" - sons of Haneef) reached there. Inus and Shokeen were having lathis in their hands. Dilshad had a two-pronged jaili. Shokeen reminded Naresh Kumar that he had abused him about two months back. Bheera, a milk seller, Dilshad, Inus and Shokeen ("3 brothers" - sons of Haneef) reached there. Inus and Shokeen were having lathis in their hands. Dilshad had a two-pronged jaili. Shokeen reminded Naresh Kumar that he had abused him about two months back. He threatened to teach him "a lesson for abusing him". Saying so he gave him 3 lathi blows viz. on the eye-brow of the left eye, below the left shoulder and on the right wrist. He also gave a fist blow on the lips. Seeing this, Vajinder Singh tried to save his brother Naresh Kumar. Bheera caught hold of him and Dilshad inflicted a jaili blow on his forehead from its sharp side. Inus gave lathi blows to Rajinder. Vajinder Singh on receiving the jaili blow fell down on the ground. Naresh Kumar alleges that he raised an alarm. The assailants ran away. Naresh Kumar and Rajinder took Vajinder Singh to the Government Hospital, Panipat for treatment. On receipt of a message from the Doctor, ASI Zile Singh reached the hospital and recorded the statement. 5. It appears that the condition of Vajinder Singh became serious. He was referred to the Medical College and Hospital, Rohtak on 29.8.1993 at 7.35 A.M. for further treatment. On August 29, 1993 he breathed his last at 3 P.M. 6. The Inquest Report Ex.PG/1 was prepared by ASI Zile Singh. The post- mortem examination was conducted on 30.8.1993 by Dr. Manju Arora, Medical Officer, General Hospital, Rohtak, PW2. She found multiple fractures of the frontal and parietal bones. There was sub-dural haematoma in the corresponding region. The death was found to be due to shock and haemorrhage. The injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. 7. Dr. Tejinder Kumar, Medical Officer, Civil Hospital, Panipat, PW1 had initially examined Vajinder Singh. In his opinion the injuries could have been caused with the jaili Ex.P1 thrust-wise. He had also examined Naresh Kumar and Rajinder on August 29, 1993. He had found that four injuries on the person of Naresh Kumar were simple in nature. These had been caused by blunt weapon within the probable duration of 12 hours. Similarly, the four injuries suffered by Rajinder were also declared simple and were said to have been caused by a blunt weapon. He had found that four injuries on the person of Naresh Kumar were simple in nature. These had been caused by blunt weapon within the probable duration of 12 hours. Similarly, the four injuries suffered by Rajinder were also declared simple and were said to have been caused by a blunt weapon. In cross-examination he admitted that the possibility of injuries having been caused in a scuffle or by a fall could not be ruled out. 8. The eye-witness account of the occurrence has been given by Naresh Kumar PW5 and his cousin Rajinder PW6. Both the witnesses had received injuries. During his examination in Court, Naresh Kumar had virtually repeated whatever he had said in his statement Ex.PK. In cross-examination he inter-alia stated that Rajinder is the son of his fathers sister. He was residing with Naresh Kumar and his family. He had admitted that they had exchanged abuses prior to the occurrence but no scuffle had taken place. He denied the suggestion that a quarrel had taken place with Jai Bhagwan about 15 to 20 days prior to the present occurrence. It was suggested to him that Dilshad and Shokeen had been falsely implicated as they had helped Jai Bhagwan in the quarrel. According to him the occurrence had lasted about 15 minutes. Vajinder Singh had bled profusely. A little bit of the blood had also fallen on the ground. About 15 to 20 persons had come from the nearby houses. He has, however, unable to give their names. Vajinder Singh was taken to the hospital in a rickshaw and had reached there at about 10/10:30 P.M. Rajinder was sent to the Police Station at about 11/11:15 P.M. The Police Station is about one furlong from the hospital. Zile Singh, the Police Thanedar, had reached the hospital at 12/12:15 A.M. in the night. He had gone to the spot at 6:30 A.M. and shown the place of occurrence to the police. He denied the suggestion that Bheera had been falsely implicated. The statement of PW6 Rajinder is also broadly to the same effect. 9. The remaining evidence consists of the statements of Hoshiar Singh Patwari PW3, Om Parkash PW4, Constable Ram Kishan PW7, Assistant Sub Inspector Bhaiya Ram PW8, Head Constable Daya PW9 and Laxmi Chand PW10. Assistant Sub Inspector Zile Singh appeared as PW11. The statement of PW6 Rajinder is also broadly to the same effect. 9. The remaining evidence consists of the statements of Hoshiar Singh Patwari PW3, Om Parkash PW4, Constable Ram Kishan PW7, Assistant Sub Inspector Bhaiya Ram PW8, Head Constable Daya PW9 and Laxmi Chand PW10. Assistant Sub Inspector Zile Singh appeared as PW11. The reports received from the Forensic Science Laboratory were produced as Ex.PM and PM/1. 10. After the occurrence the accused had become scarce. It was only on September 5, 1993 that they were located in Moti Ram Colony, Panipat. During interrogation they had made disclosure statements. As a result, the jaili was recovered from the paddy fields of Dharambir. On the disclosure statement made by Dilshad the lathi was also recovered. 11. Inus being a child, his case was referred to the Juvenile Court, Sonepat. The other accused denied the allegations against them in their statements under Section 313 of the Code of Criminal Procedure. They examined Sunil Kumar, Ahlmad of the Court of Addl. Chief Judicial Magistrate, Panipat, as DW1. He deposed that Dilshad, Shokeen and Inus had been challaned by the Police for causing injuries to accused Bheera and others on March 8, 1993. They also examined Dharambir, Sarpanch, DW2. 12. The trial Court after examination of the evidence convicted Dilshad and Shokeen as aforesaid. However, Bheera was acquitted. 13. Mr. Ghai, learned counsel for the appellants, has made only one submission. He contended that even if the statements as made by Naresh Kumar PW5 and Rajinder PW6 are accepted as correct, no case for conviction of the appellants under Section 302 read with Section 34 Indian Penal Code is made out. The claim made on behalf of the appellants was, however, controverted by Mr. Amol Rattan, learned Assistant Advocate General, Haryana. 14. Admittedly some altercation had taken place between Shokeen and Naresh Kumar. Thus, Shokeen wanted to teach a lesson to Naresh Kumar. He had, thus, given four injuries to him. All these were simple. Seeing that Naresh Kumar was being belaboured, Vajinder Singh had intervened. At that point of time Dilshad had given him a jaili blow on the forehead. As a result, there was fracture of the frontal and parietal bones. According to the post-mortem report and the statement of Dr. Manju Arora PW2, there was haematoma. This single blow had proved fatal. 15. At that point of time Dilshad had given him a jaili blow on the forehead. As a result, there was fracture of the frontal and parietal bones. According to the post-mortem report and the statement of Dr. Manju Arora PW2, there was haematoma. This single blow had proved fatal. 15. There is no evidence to indicate that Dilshad and Shokeen had the intention to kill Vajinder Singh. It appears that when Vajinder Singh had tried to intervene, Dilshad had attempted to restrain him. In the process he had used the jaili. He had, however, chosen a vital part of the anatomy viz. the head. Unfortunately, this single injury had proved fatal. Keeping in view the fact that Dilshad had chosen a vital part of the body, it is possible to assume that he had the knowledge that the injury could result in death. However, it cannot be said with certainty that he had the intention of causing death of Vajinder Singh. Taking the totality of circumstances into consideration, we are satisfied that the case would fall within the ambit of Section 304 Part-II Indian Penal Code. We hold Dilshad guilty of culpable homicide not amounting to murder. 16. Appellant Shokeen had caused simple injuries to Naresh Kumar. There is nothing to show that he wanted to cause the death of either Vajinder Singh or Naresh Kumar. He would be guilty of an offence punishable under Section 323 Indian Penal Code. 17. In view of the above, the conviction of both the appellants under Section 302 read with Section 34 Indian Penal Code is set aside. Appellant Dilshad is convicted under Section 304 Part-II Indian Penal Code. He had undergone more than six years of sentence from August 29, 1993 to September 20, 1999 when he was granted bail. We are of the view that the sentence already undergone by him along with a fine of Rs. 15,000/- shall meet the ends of justice. In default of payment of fine, he would be liable to undergo further imprisonment of one year. It is ordered accordingly. 18. The conviction of Shokeen under Section 323 Indian Penal Code is maintained. The sentence of Shokeen is reduced to that already undergone by him. He shall be immediately released if not wanted in any other case. The appeal is partly allowed in the above terms. Appeal partly allowed.