JUDGMENT 1. 1. This appeal has been directed against the judgment dated 31.8.1995, passed by learned Additional Sessions Judge No.2, Alwar, in Sessions Case No. 9/95, whereby he convicted and sentenced the accused appellants as under:- Narayan: u/Sec. 302 IPC with Life Imprisonment & a fine of Rs. 500/- in default to undergo 3 months' imprisonment; u/Sec.326 IPC With 3 years imprisonment & fine of Rs. 200/- in default to undergo one month's imprisonment; u/Sec. 324 Indian Penal Code With one year's imprisonment & u/Sec. 341 Indian Penal Code With one month's imprisonment. Ramkaran u/Sec. 302/341 IPC With Life Imprisonment & a fine of Rs. 500/- in default with three months' imprisonment & u/Sec. 341 IPC With one month's imprisonment Laxman & Kajji u/Sec. 302/34IPC With Life Imprisonment and a fine of Rs. 500/- in default with three months' imprisonment u/Sec. 326 IPC With 3 Years Imprisonment & a fine of Rs. 200/- in default with one month's imprisonment; u/Sec. 324 IPC With 1 year's imprisonment. u/Sec. 341 Indian Penal Code With 1 month's imprisonment 2. The facts giving rise to this appeal are that P.W.10 Bhagwan Das, the then S.H.O. Police Station Sadar, Alwar, received a telephonic message from General Hospital, Alwar, at about 12.15 in the night of 9.2.1995 that a quarrel took place in village Dhadikar and the injured was admitted in the hospital. This information Ex.P.12 was recorded in Rojnamcha. Upon instructions of S.H.O., P.W.9 Bansi Lal Head Constable proceeded to hospital and submitted an application Ex.P.13 to the duty doctor to certify as to whether the injured Dev Narain Gujar, aged 32 years, resident of Dhani Dhadikar, was capable of giving the statement or not. The doctor certified that the patient was fit for statement. Shri Bansi Lai recorded the Parchabayan of Shri Dev Narain Ex.P.14 at about 1.15 a.m. (in the night of 9.2.1995) to the effect that there was previous erunity with Ram Karan (accused). In the evening of 8.2.1995, while, he was coming back to his village from his field at about 7-8 p.m. he reached near the Well situated in forest near village Hazipur, the accused appellants Laxman, Ram Karan, Narayan, all three sons of Pratap Guar, resident of dhani Dhadikar and Kajji S/o Ram Singh Gujar, resident of village Lapara, who were hiding themselves, attacked him all of a sudden. Kajji and Ramkaran caught hold of him, while Laxman and Narayan inflicted farsi blows upon his both legs & left hand. On hearing his hue and cry, Sh. Kala & Sh. Amilal came. The accused ran away. 3. A formal F.I.R. Ex.P.15 was registered under Section 323, 341, 324, 326 IPC. Thereafter the injured succumbed to his injuries at about 9.15 a.m. on the same day. Therefore, the case came to be converted into Section 302 IPC. After completing the investigation, charge sheet came to be filed in the Court of learned judicial Magistrate No.1, Alwar, who committed this case to the Court of learned Sessions Judge, Alwar. Charges were framed as under: Accused Narayan:- Under Sections 302, 341, 326 and 324 IPC. Accused Ramkaran:- Under Sections 302/34 & 341 IPC. Accused Laxman & Kajji:- Under Sections 302/34, 341, 326 and 324 IPC. 4. All the accused appellants pleaded not guilty and claimed trial. To prove the charges, the prosecution examined as many as twelve witnesses. The accused appellants were examined under section 313 Cr.P.C. They simply denied the prosecution evidence in toto. However, three witnesses viz Kanhaiyalal, Brij Lai and Kailash were examined on behalf of the accused appellants. Having heard final submissions, the learned Additional Sessions Judge convicted and sentenced the accused appellants as stated above. 5. We have heard learned senior counsel Shri S.R. Bajwa, learned Public Prosecutor Shri Yadav and have gone through the entire evidence. P.W. 8 Dr.A.K. Gupta, the then Medical jurist, General Hospital, Alwar, conducted the post mortem on the dead body of Shri Dev Narain on 9.2.1995, at about 11.15 a.m. Shri Dev Narain died in the hospital at about 9.15 a.m. The doctor prepared the Post-Mortem Report Ex.P. 11. He noted following ante-mortem injunes: 1. Incised wound- 5" x 3" x Bone cut with clotted blood. Obliquely placed over anterior and upper half of left forearm. Muscles and blood vessels are cut with fractures of both bones Grievous caused by sharp weapon. 2. Incised wound - 4" x one and half" x Bone cut with clotted blood. Obliquely placed over antero medial aspect. Lower half of left leg with fracture of both bones - Grievous caused by charp weapon. Blood vessels cut. 3. Incised wound - 3" x 1" x muscle deep with clotted blood, placed obliquely over medial aspect - middle ⅓ of left leg- Simple by sharp weapon. 4. Obliquely placed over antero medial aspect. Lower half of left leg with fracture of both bones - Grievous caused by charp weapon. Blood vessels cut. 3. Incised wound - 3" x 1" x muscle deep with clotted blood, placed obliquely over medial aspect - middle ⅓ of left leg- Simple by sharp weapon. 4. Incised wound - two and half " x 1" x Bone cut with clotted blood, obliquely placed over outer aspect-middle ⅓rd of right leg with fracture of bone underneath-Grevious by sharp. 5. Incised wound - 3" x 1" x muscle deep on medial aspect middle ⅓rd of right leg - Simple caused by sharp weapon. 6. Incised wound 4" x one and half" x bone cut with dotted blood placed obliquely over postero lateral aspect of right leg, middle ⅓rd with blood vessels cut and fracture of ibis' bone underneath - Grievous by sharp weapon. 7. Incised wound three and half " x one and half" x bone cut dotted with blood placed obliquely over posterior aspect and lower ⅓rd of right leg with blood vessels tendon and muscle cut fracture of both bones underneath - Grievous by sharp weapon. All the injuries were caused by sharp weapon and were sufficient collectively for the death of the deceased. In the opinion of the doctor, the death was caused from haemorrhage and shock due to these injuries and fractures. The timings of the injuries tally with the time of occurrence and death took place about 13 hours after the said occurrence. 6. Now we come to the eye account of the occurrence. Out of twelve witnesses, only three viz. Ami Lal, Rohitash and Kalu have been examined as eye-witnesses. P.W. 1 Ami Lal is the real brother of the deceased Dev Narain while P.W. 2 Rohitash and P.W. 3 Kalu Ram are step brothers of Amilal, i.e. mother of all the three witnesses and deceased is one Smt. Dhanni while father's name of Amilal and deceased Dev Narain is Shri Ram Ratan and that of Rohitash and Kalu Ram is Sohan Lal. Thus learned senior counsel Shri Bajwa has rightly contended that all the three witnesses were interested in the prosecution. Thus learned senior counsel Shri Bajwa has rightly contended that all the three witnesses were interested in the prosecution. This contention also carries weight that they reached the place of occurrence by chance but there can be no dispute with this legal position that only on account of these two factors the testimony of the eye witnesses can not be discarded outright though such testimony should be scrutinised with care and caution. P.W. 1 Ami Lal named in Parchabayan Ex. P, 14 stated that he was going to his village from Mangalwas. On hearing hue and cry from the side of village Hazipur, he rushed to the site and saw that accused Kajji and Ramkaran had caught hold of his brother Devnarain while accused Laxman and Narain were inflicting farsi blows upon his both legs. Accused Laxman inflicted farsi blow upon his left forearm also. Dev Narain fell down. In the meantime Rohitash and Kalu Ram reached there. They took Dev Narain to hospital at Alwar, where Dev Narain died after some time. P.W. 3 Kalu Ram, named in Parchabayan and P.W.,2 Rohitash not named so, have corroborated the testimony of P.W. 1 Ami Lai. 7. Learned senior counsel Shri Bajwa challenged the testimony of eye-witnesses on a number of grounds. It was contended that none of three eye witnesses, who are brothers of deceased went to the Police Station to lodge the complaint and none of them narrated this incident to the Head-Constable P.W. 9 Shri Bansi Lai on his arrival at the hospital and in view of such unnatural conduct, their testimony can not be relied upon. Prima facie, these arguments seem to carry some weight but on careful consideration, the testimony of the eye-witnesses can not be disbelieved, because looking to the serious condition of the injured Shri Dev Narain, it can not be said fatal to the prosecution that they did not first go to the Police Station. P.W. 1 Shri Ami Lai stated that none of them went to the Police Station to report because the doctor told him that Police would reach here. It is important to say here that in the mean time, Head Constable Shri Bansi Lai reached there. P.W. 1 Shri Ami Lai further stated that the Police turned him out from the Ward and his brothers P.W. 2 Rohitash and P.W. 3 Kalu Ram were already standing outside the Ward. It is important to say here that in the mean time, Head Constable Shri Bansi Lai reached there. P.W. 1 Shri Ami Lai further stated that the Police turned him out from the Ward and his brothers P.W. 2 Rohitash and P.W. 3 Kalu Ram were already standing outside the Ward. It was also stated by him that the Police did not question them either in the hospital or at the time of preparing Panchnama of the dead-body Ex.P.1. The testimony of P.W. 1 to P.W. 3 on this point finds corroboration from the statement of P.W. 9 Bansi Lai Head Constable who stated that he went to the hospital to record the statement of the injured Shri Dev Narain and he did not talk to any of the witnesses P.W. I to P.W. 3, though they were present there. P.W.9 Shri Bansi Lai categorically stated in cross- examination that he did not ask any thing about this incident from P.W. 1 to P.W. 3 because all the three were busy in the treatment of Shri Dev Narain as he was in a serious condition. It was next argued by learned senior counsel Shri Bajwa that material improvements were made in the Court from Parchabayan Ex.P. 14 and police statements recorded under section 161 Cr.P.C. and thus the testimony of eye-witnesses can not be believed. The material contents of Parchabayan Ex.P. 14 are that there was previous enmity; that all the four accused were hiding at the place of occurrence; that all the four accused attacked Shri Dev Narain all of a sudden; that accused Kajji and Ram Karan caught hold of him while accused Laxman and Narain caused farsi blows upon both the legs and left forearm and Shri Dev Narain was taken to the hospital by Ami Lai and Kalu Ram. These basic contents of Parchabayan have been fully corroborated by P.W. 1 Ami Lai, P.W. 3 Kalu Ram and P.W.2 Rohitash. Thus there are no material improvements from Parchabayan Ex.P. 14. Further there is no material improvement made by P.W. 1 Ami Lai from his police statement Ex.D. 1 which was recorded on the same day by P.W. 9 Shri Bansi Lai. Although there are material improvements from the Police Statements of P.W. 2 Rohitash and P.W. 3 Kalu Ram. Thus there are no material improvements from Parchabayan Ex.P. 14. Further there is no material improvement made by P.W. 1 Ami Lai from his police statement Ex.D. 1 which was recorded on the same day by P.W. 9 Shri Bansi Lai. Although there are material improvements from the Police Statements of P.W. 2 Rohitash and P.W. 3 Kalu Ram. The Police statements of these two witnesses respectively Ex.D.2 and Ex.D.3 were recorded on the next day i.e. 10.2.1995 by P.W. 10 Shri Bhagwan Das S.H.O. When confronted from the police statements P.W. 2 Rohitash and P.W. 3 Kalu Ram denied various portions of their police statements. They stated that no such statements as recorded by SHO were given by them. On a careful consideration of the entire evidence and particularly the statements of P.W. 2 and P.W. 3 it becomes dear that there seems no reason for P.W. 2 Rohitash and P.W. 3 Kalu Ram to give such statements before the Investigating Officer on the next day of the occurrence just contrary to Parchabayan of their deceased brother Shri Dev Narain. Therefore, the testimony of these eye witnesses can not be disbelieved on this line of argument that they materially improved their statements in the court from their previous statements. It was next argued that on account of darkness there was no visibility, hence the statements of eye- witnesses are not trustworthy. This argument is also not found acceptable because the identity of all the four accused was not disputed during the trial. It was next argued that there was no motive to commit such grave offence like murder and thus the genesis of this occurrence has been suppressed. Having considered this argument, we find no merit because motive for a criminal act is generally a difficult area for prosecution to prove. One can not normally see into the mind of another. Motive is emotion which impells a man to do a particular act. In (1) Nathuni Yadav and others Vs. State of Bihar ( AIR 1997 SC 1808 ) , the Hon'ble Apex Court held that such impelling cause need not necessarily be proportionately grave to do grave crimes. Many a murders have been committed without any known or prominent motive. Here in this case the enmity between the deceased on the one hand and accused side on the other hand has been admitted even by the defence side. Many a murders have been committed without any known or prominent motive. Here in this case the enmity between the deceased on the one hand and accused side on the other hand has been admitted even by the defence side. In cross-examination, it was suggested to P.W. 1 Shri Ami Lai that the first wife of Sohan Lai Smt. Moharali had filed civil suits against Sohan Lai and others and accused persons were in favour of Smt. Moharali and this suggestion was admitted by P.W.1. Similar suggestions were given to Rohitash and Kalu Ram, D.W. 1 Kanhaiyalal and D.W. 3 Kailash had also stated that there was enmity between them. It was also argued that deceased Dev Narain was on a tractor having scissors and Shri Dev Narain fell from that tractor upon scissors and thus suffered these injuries. We have considered this defence version but find no force in the same. No doubt, P.W. 8 Dr. Gupta in cross- examination admitted that if one falls from tractor upon scissors, such injuries are possible. D.W. 1 Kanhaiya Lai stated that they saw that Shri Dev Narain fell from the tractor having scissors and got injuries. He himself went to the house of Shri Dev Narain and informed Ami Lai about this incident. Thereafter he alongwith Ami Lal, Kalu Ram and Rohitash took out Dev Narain from the tractor. D.W. 3 Shri Kailash also supported the statement of D.W. 1 Kanhaiyalal. But on a careful consideration of entire evidence, this defence version can not be relied upon at all and it seems to be an afterthought. Suggestion to Shri Ami Lal in this regard was given to this effect that Shri Kanhaiya Lal sent someone to him to inform about this incident, while D.W. 1 Shri Kanhaiya Lal says that he himself went to inform Amilal. Regarding the Presence of P.W. 2 Rohitash and P.W. 3 Kalu Ram at the place of occurrence, it was argued that their presence on the spot is unbelievable in view of the statement of D.W. 2 Brij Lal. P.W. 2 Rohitash and P.W. 3 Kalu Ram deposed that they were going to village Hazipur for matting their she-buffalow. According to D.W. 2 Shri Brij Lal, Rohitash and Kalu Ram came to him for this purpose five to six days prior to this incident. P.W. 2 Rohitash and P.W. 3 Kalu Ram deposed that they were going to village Hazipur for matting their she-buffalow. According to D.W. 2 Shri Brij Lal, Rohitash and Kalu Ram came to him for this purpose five to six days prior to this incident. The statement of D.W. 2 Brij Lal is not found reliable because suggestion in this regard to P.W. 2 Rohitash was given to this effect that they went for this purpose two days prior to this occurrence. Thus in view of the entire discussion, the learned trial Court rightly came to this conclusion that these accused appellants inflicted these injuries to deceased Dev Narain. 8. Next crucial point which arises for consideration is as to what offence is made out ? Learned senior counsel Shri Bajwa argued that there was no injury on any vital part of deceased Dev Narain and two accused were unarmed and thus there was no intention to kill Shri Dev Narain. It was also contended that there is no medical evidence to show that the injuries were sufficient to cause death in ordinary course of nature. He placed reliance upon (2) Molu and others Vs. State of Haryana ( AIR 1976 SC 2499 ) . In this case two persons died. One deceased Shri Ram Nath got 14 injuries while the second deceased Shri Banwari received 16 injuries. According to the opinion of the doctor, death was due to shock and haemorrhage as a result of the fracture of right ulna and bleeding from big blood vessels due to Injury No. 11. Both the deceased persons had sustained quite a number of injuries but none of the injuries appear to have been given on any vital part of the body except Injury No. 14 in the case of Ram Nath deceased and Injuries Nos. 15 and 16 in the case of Banwari deceased. In view of these facts it was held that there was nothing to show that the accused intended to cause deliberate murder of the two deceased persons. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. Therefore, the accused had committed an offence under Section 304 Part II I.P.C. and not under Section 302 IPC.In (3) Sita Ram and others Vs. State of U.P. ( AIR 1993 SC 350 ) , the deceased received 28 injuries. It was held in Para 4 as under: "4. However, coming to the nature of the offence we find it difficult to convict them under Sections 302/149, IPC. The Doctor, P.W. 16 who conducted the post-mortem, found 28 injuries. Only the first three lacerated injuries were on the head and punctured wounds Nos. 5, 6, 7, 11 and 12 were on the face but the Doctor did not find any internal damage. The doctor noted that the teeth were artificial and the denture was complete. Only three teeth of the denture were broken. The Doctor even did not say that the injuries cumulatively were sufficient in the ordinary course of nature to cause death. There is no injury on any of the vital organs. This only shows that the common object of the unlawful assembly was only to belabour the deceased, the Manager of the Raja who was getting the land ploughed and according to the accused the toughing was being done high- handedly. Under these circumstances we are of the view that it is not safe to convict the appellants under Section 302/149, I.P.C. Accordingly we set aside their conviction under Section 302/149, I.P.C. and sentence of imprisonment for life. Instead we convict them under Section 304, Part II, Indian Penal Code and sentence each of them to undergo seven years R.I." 9. On the other hand, learned Public Prosecutor contended that these injuries were sufficient to cause death and merely on the ground that injuries are not on vital parts, it can not be said that the offence made out is not under Section 302 IPC. In support of his contentions, learned Public Prosecutor has placed reliance upon (44) State of Andhra Pradesh Vs. Rayayarapu Punnayya and another ( AIR 1977 SC 45 ) . In support of his contentions, learned Public Prosecutor has placed reliance upon (44) State of Andhra Pradesh Vs. Rayayarapu Punnayya and another ( AIR 1977 SC 45 ) . Relying upon the case of Anda V. State of Rajasthan ( AIR 1966 SC 148 ) , it was held in para 38 of the judgment by Hon. Supreme Court as under:- "The injuries were not on a vital art of the body and no weapon was used which can be described as specially dangerous. Only lathis were used. It cannot, therefore, be said safely that there was an intention to cause the death of Bherun within the first clause of Section 300. At the same time, it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused. The number of injuries shows that every one joined in beating him. It is also dear that the assailants aimed at breaking his arms and legs. Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature, even if it cannot be said his death was intended. This is sufficient to bring the case within 3rdly of Section 300.,,In (5) Sankara Nagamalleswara Rao and another etc. Vs. State of Andhra Pradesh, (1998 CRI. L.J. 2270) , it was held by Hon. Supreme Court that though the injuries were not on vital parts but the medical evidence clearly shows that the deceased had died due to the injuries caused to him and the injuries were sufficient in the ordinary course of nature to cause death. Therefore, the appellants were rightly convicted under Section 302 read with 34 IPC. 10. In view of this legal position, we have considered the rival contentions. It is the case of the prosecution itself that all the four accused-appellants were hiding themselves and when the deceased Dev Narain reached the place of occurrence, all the four attacked him all of a sudden. Inspite of this, two appellants namely Kajji and Ram Karan out of four appellants were unarmed and they only cought hold of Dev Narain. Remaining two appellants Narain and Laxman inflicted farsi blows only upon the legs and left forearm. There is no injury on any vital part of the deceased Shri Dev Narain. Inspite of this, two appellants namely Kajji and Ram Karan out of four appellants were unarmed and they only cought hold of Dev Narain. Remaining two appellants Narain and Laxman inflicted farsi blows only upon the legs and left forearm. There is no injury on any vital part of the deceased Shri Dev Narain. Even, there is no such evidence to show that any of the appellants tried to inflict any blow upon any vital part of body of Dev Narain. Thus, it cannot therefore, be said safely that there was an intention to cause death of Shri Dev Narain within the first clause of Section 300 of IPC. Even the Doctor did not say that the injuries were sufficient in the ordinary course of nature to cause death. Therefore, clause 3rdly of section 300 Indian Penal Code also cannot be applied. Under these circumstances, we are of the view that it is not safe to convict the appellants under Section 302/34 IPC. Offence under Section 341 Indian Penal Code is also not proved at all because there is no evidence to show that the appellants voluntarily obstructed Shri Dev Narain so as to prevent him from proceeding in any direction in which he had a right to proceed. Offences under section 326 for causing grievous injuries by sharp edged weapon and under Section 324 Indian Penal Code for causing simple injuries by sharp edged weapon have been found rightly proved. 11. Accordingly we set aside the conviction and sentence of Narain under Section 302 and 341 IPC, conviction and sentence of Laxman, Ramkaran and Kajji under Sections 302/34 and 341 IPC. Instead we convict all the appellants under Section 304 Part II IPC. They are in jail for more than six years and ten months. Therefore, we sentence each of them to under go with the period of sentence already undergone and also maintain the conviction and sentence of appellants Narain, Laxman and Kajji under Section 326 and 324 IPC. All the sentences shall run concurrently. Thus, the appeal is partly allowed.Appeal Partly Allowed *******