JUDGMENT 1. This appeal is filed by the accused appellant challenging the judgment dated 20.2.1999 passed by Additional Sessions Judge, Ratangarh in Sessions .Case No. 2/97 convicting the appellant for offence under section 302 IPC to life imprisonment and to pay a fine of Rs. 500/- and in default to further undergo 3 months S.I. on the grounds mentioned in the memo of appeal and as also canvassed before me. 2. With the assistance of the learned counsel for the accused-appellant and learned Public Prosecutor, we have scrutinised the record and reappreciated the evidence on record. 3. The prosecution story as it emerge from reappreciation of the evidence on record is that; on 19.9.1996 in the morning, the complainant's family was working in their field. At about 7.30 a.m. the accused party without any cause assaulted them. The accused party was armed with Farcy, Kulhari and lathies. In the assault, one Gopal Ram was seriously injured and thinking that he has died, the accused persons lifted him and threw him in the dry well, then the accused left the field. With the help of others who had, by then reached the spot, taken up the injured from the well and later on he died. Injuries were caused by to other witnesses also who were members of the complainant's family. Immediately, first information report was lodged, investigation was conducted and accused persons were accosted and arrested. The prosecution examined as many as 15 witnesses to prove its case that the accused were responsible for murdering Gopal Ram and injuring Champa Devi and another. The learned trial Judge on appreciation of this evidence came to the conclusion of guilt and proceeded to convict the accused Bhanwar Lal under section 302 IPC and sentenced him to suffer imprisonment for life. The learned Judge, however, found the evidence insufficient for convicting the other accused persons. He, therefore, proceeded to acquit them. It is this order of conviction of Bhanwar Lal which is challenged in this appeal on the following grounds : (i) The learned Judge committed an error of law apparent on the face of record in convicting Bhanwar Lal alone when he did not find the evidence reliable for convicting all others implicated by the said evidence. (ii) Even if the entire evidence is accepted, no case of murder is made out. (ii) Even if the entire evidence is accepted, no case of murder is made out. (iii) All the eye-witnesses attributed to attack by Farsi and Kulhari on the head of the deceased Bhanwar Lal and Manuki but there is only one injury on the head. There is no basis of holding that injury was caused by Bhanwar Lal only since Manuki is acquitted. 4. Admittedly there is dispute over possession of property and consequently seeing the complainant in the field of which possession was alleged to be with the accused party the incident took place. It is not premeditate murder and hence, the order is bad. The learned Public Prosecutor supported the judgment by pointing Out from the evidence of eye-witnesses PW-6, PW-7, and PW-8 that it was enough to sustain the conviction. We have heard counsel and perused the record. 5. In this case, PW-6, Bhanwar Lal S/o Gopal Ram has filed the FIR and he is also an eye-witness. PW-2 Bajrang Lal has seen execution of the spot panchnama and seizure at the spot. He is brother of the deceased and he has proved Ex.P-1, 2 and 3. He came on the scene of offence immediately after occurrence. PW-3 Mansukh Lal is declared hostile. He is relative of deceased but he has resiled from his all earlier statements. 6. PW-4 Rameshwar Lal is examined as Patwari to prove that the possession was with the complainant party. PW-5 Kailash Chandra was also declared hostile as he has resiled from his earlier statements. 7. PW-6 Bhanwar Lal S/o Gopal Ram is son of the deceased and was present when the incident occurred. He is an eye-witness of the whole assault. He saw the accused coming through field duly armed and he has stated that Bhanwar Lal accused had Farcy in his hand, Manuki had Kulhari in her hand, Rakesh had Jale in his hand and others have sticks or Kulhari. The witness then proceeds to say that immediately on getting into the field the accused party started assaulting and Bhanwar Lal accused hit with Farcy on the head of Gopal Ram the deceased. He then says that Manuki also hit blow of kulhari on the head of deceased. Others also, according to the witness, started hitting the victim. The witness then proceeds to say that immediately on getting into the field the accused party started assaulting and Bhanwar Lal accused hit with Farcy on the head of Gopal Ram the deceased. He then says that Manuki also hit blow of kulhari on the head of deceased. Others also, according to the witness, started hitting the victim. When the mother of the witness went to save her husband Gopal Ram, Bhanwar Lal gave a blow by farcy on the head of Champa Devi but she avoided it by raising her right hand which was injured. Then the accused persons thinking that Gopal Ram is dead, threw him in the well and ran away. The accused in all were 9 persons. The witness was thoroughly cross-examined. It will be seen that the family members of the witness were assaulted by 8 persons duly armed with lethal weapons and consequently the witness might have been little confused at the time when the,assault took place. It is natural that he is unable to give graphic description or make a hit by hit running commentary on assault. In our opinion, there is nothing in the evidence of this witness which requires his evidence being total discarded. 8. The next eye-witness PW -7 Champa Devi in whose possession the field is recorded. She duly corroborates the son. She names all the 8 accused described the manner in which they were armed and says the blow on the head of her husband was given by Bhanwar Lal present appellant. She also deposed that when she tried to save her husband Bhanwar Lal the accused gave a blow on her head and in the process her hand was injured. This witness has stated that Manuki hit her with kulhari on her left hand and Bhanwar Lal had caused injury on her right arm. She does not speak that Manuki hit on the head of Gopal Ram. It is obvious that she might have not seen the assault lay Manuki on Gopal Ram. She might have a missed seeing it happening or it has not happened and therefore, the learned trial Judge has rightly given benefit of doubt to Manuki. 9. The third eye-witness is PW-8 Nanuram. This witness has also named only 8 accused. He has described the manner in which they were armed and the assault in the manner in which took place. 9. The third eye-witness is PW-8 Nanuram. This witness has also named only 8 accused. He has described the manner in which they were armed and the assault in the manner in which took place. He has stated that Bhanwar Lal and Manuki both had hit on the head of the deceased. He generally corroborates the two other eye- witnesses. 10. PW-9 Surajmal was declared hostile, as he has denied that the arrest of the accused was in his presence when earlier he had prescribed to the arrest memo. 11. PW-10 is X-ray Technician who proves the X-ray. PW-11 is the Doctor who examined the deceased and proved injuries caused to him. He has also examined PW 7 Champa Devi. His evidence, therefore, corroborates the theory of assault as made out by the eye-witness. PW-12 is Police Constable, who took the article for examination to F.S.L. Jaipur. PW 13 is Dr. Vyas who conducted the post mortem and who proves that the death of Gopal Ram is homicidal. In the face of this evidence, in our opinion, the judgment of conviction cannot be held to be wrong. The learned trial Judge has rightly shifted the evidence which was insufficient to convict, therefore, he has chosen to acquit them and has convicted the accused appellant as he has been unanimously named by all the witnesses as he was the only assailant armed with farcy. We are, however, not inclined to accept the conviction under section 302 IPC. We think that the learned counsel has rightly pressed into service two judgments of the Hon'ble Supreme Court of India on this point; one is reported in AIR 1972 SC 2462 and the other is reported in 1993 SCC Cr. page 387. In both the decisions, it has been held by the Hon'ble Supreme Court of India that where multiple attack is complained of, only single injury is proved, it will not be possible to convict any one of them under section 302 alone as the vital blow cannot be unmistakable points to that person. 12. We are of the opinion, that the evidence or record unmistakably points out of that, homicidal death of Gopal Ram was caused by these persons. It will be seen that the accused assaulted the victim and all the three eye-witnesses say that thinking that the victim was dead, he was lifted and thrown in the dry well. 12. We are of the opinion, that the evidence or record unmistakably points out of that, homicidal death of Gopal Ram was caused by these persons. It will be seen that the accused assaulted the victim and all the three eye-witnesses say that thinking that the victim was dead, he was lifted and thrown in the dry well. Had there been intention on the part of the assailant to murder Gopal Ram they would have ensured that before throwing his body into the well, cause for assault, is also obvious. Both the parties claimed the possession and also claimed that they have cultivated the field and therefore, entitled to receive harvest. The evidence is, therefore, insufficient to warrant an inference of intention to commit murder. Interest of justice, in our opinion, would be met if the conviction under section 302 is altered to that under section 304 Part-II and the sentence is reduced to that of 7 years. 13. In the result, therefore, the appeal partly succeeds and is partly allowed. The order of conviction under section 302 is altered to one Section 304 Part II and the sentence is reduced to 7 years rigorous imprisonment.Appeal partly allowed. *******