JUDGMENT 1. - The present appeal has been filed by both the accused persons against their conviction and sentences awarded by the trial court in sessions case No. 34/98 vide its judgment dated 3.4.1999. 2. A written report was lodged by the complainant Laxman Das at 11.30 PM. on 9.1.1998 at Police Station, Purani Abadi, Sri Ganganagar. According to the report, while he was at his home on 9.1.1998 at 6.30 PM. Thapa and Takla came running to him and informed him that accused Jaila and Raju were beating his son Mangu and were saying that they wiil kill him. Upon this, he rushed to the culvert and saw that the accused Jaila and Raju were assaulting on his son with a dagger and were saying that they would not leave him that day and they inflicted 4-5 blows. Then, they went away saying that he appears to have died. Meanwhile, wife of complainant Laxman Das also reached there. Mangu, his son was picked up and taken to the hospital, Ganganagar. During the course of treatment, Mangu died. On the basis of this report, a case was registered; investigation was conducted; charge-sheet was filed and the accused were committed to the Court of Sessions from where the case was assigned to the trial court for trial. 3. At the trial, accused Jaila was charged under Section 302/34 IPC and Raju was charged under Section 302 IPC simpliciter. Prosecution examined 11 witnesses and tendered into evidence 25 documents. The defence also tendered two documents. Considering the case of the parties, trial court first examined the point'whether death of Mangat Ram was homicidal or not. After considering the post mortem report Ex. R 9 and the statement of Dr. Om Prakash Sharma, PW. 5 who opined that the death was caused due to excessive bleeding from the injury, the trial court has held that death of deceased was homicidal. To bring home the guilt to the accused, the trial court considered the question of his culpability. The trial court considered the evidence of witnesses PW. 1 Laxman Das, P.W. 2 Smt. Usha, PW. 3 Takla and PW. 4 Thapa, PW. 4 Thapa in his statement has stated that he is a pavement vendor and his vending trolley is near the bus stand. The trial court considered the evidence of witnesses PW. 1 Laxman Das, P.W. 2 Smt. Usha, PW. 3 Takla and PW. 4 Thapa, PW. 4 Thapa in his statement has stated that he is a pavement vendor and his vending trolley is near the bus stand. At the time of incident around 6.30 P.M. the accused were standing near his vending trolley and 2-3 customers were also there. Deceased Mangat Ram came and met the accused persons. At that time, accused abused deceased Mangat Ram. While this altercation was going on. Takla P.W. .3 also arrived there and they rescued deceased Mangat and took him aside. After that, accused Raju and Jaila came near deceased and gave him 2-3 slaps and started dragging the deceased by holding his hands and legs. PW. 4 Thapa and PW. 3 Takla wanted to rescue the deceased from the clutches of the accused but they could not get him released. On this, Thapa and Takla rushed to the house of Mangu to inform the mother and father of deceased. The mother and father of deceased also arrived at the scene of occurrence. Jaila caught hold of deceased by his hairs and Raju inflicted dagger blows. They ran away from the scene after inflicting injuries. In cross-examination, this witness has stated that he has seen Raju inflicting knife blows from 20 to 25 ft. At the time when he saw the deceased being hit by the knife, he was in standing position. The deceased was then taken to the hospital. The trial court considered the evidence of PW. 3 Takla who according to the trial court has stated in conformity with the evidence of PW. 4 Thapa. PW. 1 Laxman Das is the father of deceased and PW. 2 Smt. Usha is the mother of deceased. They have stated that while Thapa and Takla came and informed about inflicting of injuries to Mangat Ram, they rushed to the scene of occurrence. When they reached the scene of occurrence, they found that Jaila was holding the hairs of deceased and Raju was inflicting injuries with knife. When Laxman Das exhorted the accused, he fled away. Thereafter, the injured was taken to the hospital. The trial court has believed the testimony of these eye-witnesses and has discarded the defence suggestion that FIR was delayed. According to the trial court, the incident had occurred at 6.30 RM. When Laxman Das exhorted the accused, he fled away. Thereafter, the injured was taken to the hospital. The trial court has believed the testimony of these eye-witnesses and has discarded the defence suggestion that FIR was delayed. According to the trial court, the incident had occurred at 6.30 RM. and FIR had been lodged at 11.30 RM. The injured was immediately taken to the hospital. He was struggling with his life. So, such kind of delay cannot be considered to be of any consequence. The trial court has found that PW. 1 is corroborated by the fact that the incident had happened near culvert. Thapa has testified that the incident took place by the side of his payment vending trolley 'Rehdi' and has given details of the incident. PW. 10 Jeerudin, PW. 1 Laxman Das and PW. 2 Smt. Usha have also narrated incident which was started by the defence. Thapa, PW. 4 has proved that the occurrence started from Thapa's Rehdi and extended to near the square. The 'Rehdi' has been found turned up side down and non-mention of this event in the prosecution story cannot be considered to be of any consequence. The trial court has found the case to be proved against the accused and convicted the accused as aforesaid. 4. We have heard the learned counsel for the appellants and the learned Public Prosecutor for the State. 5. Learned counsel for the appellants has urged that prosecution story is' shaky It witness Thapa and Takla had gone to inform parents of the injured, then their presence on scene of occurrence was not possible and thus these witnesses could have not seen complete occurrence. They might have seen : initial scuffle but actual infliction of the injuries by knife could not have been witnessed by them because after going to inform father of deceased, they could not have immediately come alongwith father and mother to witness the occurrence. Thus, story of the prosecution is improbable. Learned counsel for the appellants has further claimed that allegation against accused Raju is that he inflicted knife blows whereas accused Jaila caught hold of the deceased by hairs. The incident started when the deceased met these two persons. Then these two accused persons abused deceased and then dragged him at some distance from Thela. They were separated but they again entered into an affray. The incident started when the deceased met these two persons. Then these two accused persons abused deceased and then dragged him at some distance from Thela. They were separated but they again entered into an affray. Looking to the protracted nature of the incident, it cannot be said that Jaila shared the common intention with Raju to inflict knife injury on the deceased. The only act attributed to Jaila is holding of the hairs. Had they shared the common intention of inflicting knife blows, then from the start of the incident to subsequent stage, when stage by stage the accused had pursued the deceased, they could have murdered him and they could have inflicted knife blow but instead, of doing so, they before the knife blow was inflicted, abused, quarrelled and after being separated again fought and caught hold of hairs of deceased and it was at last that the blow was inflicted by the accused Raju. Such a nature of the incident does not establish conclusively that it was accused Raju who had intended to cause knife injury right from the inception of the incident and Jaila had the knowledge of it. May be that while quarrel was going on, it might have occurred to accused Raju to cause knife injury to the deceased and thereafter he caused injuries to the deceased. So, the accused Jaila cannot be implicated under Section 302/34 IPC. Learned counsel for the appellants has further stressed that accused Raju had caused injury at iliac level of the body and due to iliac vessel cut, the deceased died and other injuries were superficial. It cannot be said that accused had intended to cause such an injury to the deceased which would in the ordinary course of nature be sufficient for causing death. As such, an offence under Section 304 Part-II IPC only is made out against accused Raju from the facts of this case. 6. Per contra, learned Public Prosecutor has submitted that witnesses Thapa PW. 4 and Takla, PW. 3 were at the scene of occurrence. They had seen the quarrel as it gradually developed. It had developed from the meeting of the deceased with the accused in cordial manner of quarrel, scuffle, slapping, getting separated, then dragging the deceased by holding hairs and ultimately infliction of knife injury. 4 and Takla, PW. 3 were at the scene of occurrence. They had seen the quarrel as it gradually developed. It had developed from the meeting of the deceased with the accused in cordial manner of quarrel, scuffle, slapping, getting separated, then dragging the deceased by holding hairs and ultimately infliction of knife injury. There was sufficient time for these witnesses to have gone to the home of the injured to get the parents of injured and in this process, if witnesses have claimed seeing of whole incident, nothing can be said against their trustworthyness. It does not stand to reason as to why these witnesses would leave the actual culprit and involve innocent person? The case of the prosecution further stands established by the fact that quarrel gradually picked up and ultimately resulted into such severe injury to the deceased. He succumbed to injuries within two hours of the incident. The injury resulted into cutting of major blood vessel and it cannot be said that by causing such injury, deceased had no knowledge of the implication of the act done by them and it cannot be said that accused .had no intention to cause death of deceased. Learned counsel for the State urged that conviction and sentence recorded against accused persons have rightly been recorded by the trial court. 7. We have given our thoughtful consideration to the arguments have also perused the record. 8. First, we take up whether witnesses could see the incident as has been narrated by them or not. While witness Thapa, PW. 3 was vending on his 'Thela' the accused were standing nearby him. They were earlier acquainted and deceased came there and met them. At that time, after the deceased and accused met, the accused started abusing and man handing the deceased. Then, he separated them and took the deceased aside. Since, scene of occurrence is close to the vending 'Thela' of this witness, it cannot be said that witness will not be in a position to observe all this. The incident has not immediately culminated into the murder of deceased. It gradually culminated into the murder of deceased. It gradually progressed. The witness had gone to the home of the deceased and informed his parents. While returning the witnesses have claimed to have seen the deceased being manhandled by the accused Jaila holding him by hairs and accused Raju inflicting knife blows. It gradually culminated into the murder of deceased. It gradually progressed. The witness had gone to the home of the deceased and informed his parents. While returning the witnesses have claimed to have seen the deceased being manhandled by the accused Jaila holding him by hairs and accused Raju inflicting knife blows. The incident had not taken place in a flash. It had developed gradually. The accused had some scores to settle with the deceased as is obvious because when the deceased had come and shook hands with the accused persons, they immediately respondent by abusing and slapping. Thus, it cannot be said that it was an act committed in hurry. The accused had in their mind some devised scheme of things and wanted to manhandle the deceased. Therefore, it is quite probable and possible for these witnesses to have seen the incident as they have narrated. Their accounts of the incident stand corroborated by the fact that blood has been recovered by them to be the place where deceased was taken. The deceased was in the company of the accused. When witness Thapa and Takla left to get parents of deceased and when they came back, the deceased was still in the company of accused. The accused Jaila was catching hold of the hairs of deceased and accused Raju was inflicting knife blows.. When, father of deceased, Laxman Das, PW. 1 exhorted, the accused fled away. The sequence of events narrated by these witnesses appears to be natural and, truthful. Thus, the trial court has rightly believed these witnesses. We see no reason to differ from the view of the trial court that the witness had seen the occurrence and from their evidence the prosecution case is fully established. 9. Then comes the question of the offence as has been made out against accused persons. The witnesses have categorically stated that they have seen the deceased being inflicted knife blow by Raju. Other accused person Jaila had first abused the deceased and at the time, when Raju was inflicting knife blows, accused Jaila held the deceased by hairs. In the sequence of prosecution story, it has nowhere come that Jaila had any knowledge that accused Raju had knife with him or pronounced to give knife blows or was likely to cause knife injury to the deceased. In the sequence of prosecution story, it has nowhere come that Jaila had any knowledge that accused Raju had knife with him or pronounced to give knife blows or was likely to cause knife injury to the deceased. That being the position, the possibility cannot be ruled out that while quarrel started from abuses to slaps etc. and deceased was being dragged by both the accused persons, all of a sudden, accused Raju got an idea of inflicting knife blow to the deceased and with this intention, he inflicted injuries on the deceased. Thus, we feel that conviction of accused Jaila under Section 302/34 IPC is not proper and the same is set aside. It would be in the interest of justice that it was the case of Section 323 IPC for manhandling the deceased. Consequently, the conviction of accused Jaila under Section 302/34 IPC is altered to Section 323 IPC. He is behind the bar. He deserves to be released on the period already undergone. 10. So far as, accused Raju is concerned, he caused multiple injuries to the deceased with 2 knife. One of the injures has resulted into cutting of a major vessel which has resulted into death of deceased within two hours of the incident. Learned counsel for the appellant has urged that offence under Section 302 IPC is not made out and has placed reliance on 2000 SCC (Criminal) 1230 (Bhera v. State of Rajasthan) , 1993 SCC (Criminal) 384 (Sita Ram v. State of Rajasthan) , 2001(1) RCC 869 Devchand v. State of Rajasthan , 2001(2) RCC 896 (Bhanwarlal v. State of Rajasthan) and 1999 Cr.L.J. 2101 (K. Ramakrishnan Unnithan v. State of Kerala) . We have considered the case law cited by the counsel for the appellants. To bring the case of accused Raju under Section 304 IPC, it is necessary that case of accused should come in one of the exceptions of Section 300 IPC. Only exception under which learned counsel could bring his case was the exception (3) but it was a case of sudden fight and as such the case of accused Raju is not covered by this exception. If the case is not covered in any one of the exceptions of Section 300 IPC, then the possibility to bring the case within Section 304 IPC does not arise. If the case is not covered in any one of the exceptions of Section 300 IPC, then the possibility to bring the case within Section 304 IPC does not arise. Further, the injury inflicted by the accused has resulted into death of deceased and it can safely be presumed that accused had the knowledge of causing such bodily injury whose result would be the death of the deceased. In this view of the matter, it cannot be said that accused cannot be held guilty under Section 302 IPC. Consequently, the appeal filed by accused Raju is found to be devoid of merit. His conviction and sentence under Section 302 IPC deserve to be maintained.Consequently, the appeal filed by accused Raju s/o Dayal Singh is dismissed. His conviction and sentence under Section 302 IPC are maintained. So far as accused Jaila alias Jarnail Singh is concerned, his conviction under Section 302/34 IPC is altered to Section 323 IPC and he is ordered to be released forthwith for the period already undergone, if not required in any other case. *******