JUDGMENT 1. - This appeal is directed against the judgment of the learned Additional Sessions Judge No. 1, Sri Ganganagar dated 7.8.1998 convicting the appellants Sanjay alias Banti of offence under section 302 I.PC. and other 1 appellants namely Satish Kumar, Ashok Kumar, Rajpal and Lakhan Singh for offence under section 302/149 I.P.C. and sentenced each one of them to imprisonment for life and to pay a fine of Rs. 1000/-; in default of payment to further undergo one month simple imprisonment. The appellants have also been convicted for the allied offences. 2. Seven accused persons namely Sanjay alias Banti, Satish Kumar, Ashok Kumar, Rajpal, Lakhan Singh, Surendra Kumar and Shivdayal were put to trial on the charge or murder of Ashok Kumar S/o Sohanlal. During the trial as the accused Surendra Kumar and Shivdayal absconded, their cases were to separated. During the pendency of the appeal Surendra Kumar and Shivdayal were also tried. The learned Additional Sessions Judge No. 2, Sri Ganganagar by judgment dated 9.1.2001 has acquitted them of the offence under section 302 read with 149 I,PC. and the allied offences. Another development which has taken place during the pendency of the appeal is that one of the appellant Rajpal also died and hence appeal on his behalf stands abated. 3. Briefly stated that prosecution case is that on 13.6.95 P.W. 2 Gajraj Singh submitted a written report before P.W. 7 Suman Ali, S.H.O.. Purani Aaadi Police Thane Kotwali, Sri Ganganagar while in the hospital stating inter alia that at about 12:30 noon he along with PW. 3 Manoj and Ashok were proceeding towards Tarachand Vatika and when they reached infront of Kr Shan Mandir abruptly Sanjay, Satish, Surendra Kumar, Ashok, Shivdayal, Lakhan and Rajpal surrounded them. Sanjay was armed with a Gupti. Satish was carrying sword in his hand. Surendra was carrying an iron rod in his hand. The other accused persons were armed with hockies and lathies. Shivdayal was exhorting the other accused persons. Banti thrusted the Gupti in the stomach of Ashok on account of which he fell down. Satish inflicted injuries to Ashok by sword T he other accused persons also attacked on Ashok. On intervention by him and Manoj accused Satish attempted a sword below which was warded off by him causing injuries on the fingers of the left hand. Banti thrusted the Gupti in the stomach of Ashok on account of which he fell down. Satish inflicted injuries to Ashok by sword T he other accused persons also attacked on Ashok. On intervention by him and Manoj accused Satish attempted a sword below which was warded off by him causing injuries on the fingers of the left hand. PW 3 Manoj rushed to the Police Station and informed about the inc,dent. On receiving the information, Police arrived at the spot and Ashok Kumar was immediately removed to the hospital by the police. The doctor declared Ashok Kumar dead. On this information police registered a case for offence under sections 302, 324, 147, 148, 149 IPC and proceeded with the investigation. After usual investigation police laid charge-sheet against the seven accused persons for the aforesaid offences. The accused persons denied the charges leveled against them and claimed trial. The prosecution in support of the case examined as many as 10 witnesses and produced certain documents. In statement under section 313 of the Code of Criminal Procedure the accused persons denied the correctness of the prosecution evidence appearing against them. The trial court mainly relying on the testimony of the eye-witnesses PW 2 Gajraj and PW 3 Manoj corroborated by the medical evidence found the prosecution case proved. Accordingly, he convicted and sentenced the appellants as stated above. 4. We have heard Mr. H.S.S. Khadia learned counsel for the appellants and Mr. K.R. Bishnoi learned Public Prosecutor. 5. The learned counsel while taking us to the statements of the eye-witnesses namely PW 2 Gajraj and PW 3 Manoj Kumar has pointed out so material contradictions and infirmities in their statements leading to the inference that the prosecution has been guilty of suppressing the genesis of the incident. It is also submitted by the learned counsel that as alleged Sanjay alias Banti was armed with Gupti, the other appoants Satish was armed with a sword and Rajpal armed with a knife and the other accused persons with blunt weapons, however, the medical evidence shows that there were only 7 injuries on the person of the deceased, out of which only 3 injuries were incised and rest of the four bruises. This makes the participation of the appellants Rajpal, Lakahan Singh and Surendra Kumar doubtful. As regard the three injuries, it is submitted that the cause of death is injuries on the back. This makes the participation of the appellants Rajpal, Lakahan Singh and Surendra Kumar doubtful. As regard the three injuries, it is submitted that the cause of death is injuries on the back. The third injury which can be attributed to appellant Sanjay is not the cause of death. Thus, there is nothing to show that out of the three accused person, who caused the injuries No. 1 2. It is also submitted that as the two other accused persons have been acquitted and the participation of appellants Rajpal, Lakhan Singh and Surendra Kumar is doubtful the conviction of the appellants cannot be sustained under section 302/149 I.P.C. On the other hand the learned Public Prosecutor has supported the judgment of the trial court. 6. We have carefully read the prosecution evidence and analysed the same. PW 2 Gajraj Singh stated that on 13.6.95 while he along with Manoj Kumar and deceased Ashok Kumar were proceeding towards Tarachand Vatika, near Krishan Mandir the accused appellants Sanjay alias Banti, Satish Kumar, Surendra Kumar (since acquitted), Ashok Kumar. Sanjay's father Shivdayal (since acquitted). Lakhan and Rajpal (dead) came from the front side and attacked on them. Shivdayal exhorted the accused persons stating that no body should be allowed to go alive. He also stated that Sanjay was armed with a Gupti and Satish Kumar with a sword. Rajpal was carrying a knife in his hand. Surendra Kumar was carrying an iron rod whereas Ashok Kumar a wooden Ghota. Lakhan was carrying hockey in his hand. He also stated that Sanjay thrusted Gupti in the stomach of Ashok Kumar on account of which he fell down. Satish attacked on Manoj Kumar by sword which was so warded off by him causing injuries on the fingers. He also sustained injury on his nose. On the way, he met with his friend Keval Krishan. They took the motor-cycle from him. He along with Manoj went to the Police Station on the motor-cycle. However, the police having received the information of the incident, Suman Ali In-charge of the Police Station reached on the spot. The police registered a case on the basis of oral information given by him in the hospital. Ashok Kumar was declared dead by the doctors in the hospital. He also stated that in the morning incident at about 10:00 A.M. Surendra Kumar visited his house along with Punjab Police. The police registered a case on the basis of oral information given by him in the hospital. Ashok Kumar was declared dead by the doctors in the hospital. He also stated that in the morning incident at about 10:00 A.M. Surendra Kumar visited his house along with Punjab Police. It appears that they were in search of one Ram Kumar. He reprimanded Surendra Kumar for bringing the police to his locality. Surendra Kumar had threatened him to settle the score with him later on. There is a lengthy cross examination but there is nothing worth mentioning. 7. PW 3 Manoj Kumar stated that when he along with PW 2 Gajraj Singh and Ashok Kumar reached in front of Krishan Mandir the accused Sanjay alias Banti, Satish Kumar, Surendra Kumar, Ashok Kumar, Shivdayal, Lakhan and Rajpal arrived. Shivdayal exhorted stating that no one should be allowed to go alive. He further stated that Sanjay alias Banti was armed with a Gupti, Satish Kumar with a sword, Surendra Kumar with an iron rod, Ashok Kumar with a wooden Ghota, Rajpal with a knife and Lakhan with a hockey. He further stated that Banti thrusted Gupti in the stomach of Ashok Kumar on account of which he fell down. Satish Kumar tried to attack on Ashok by sword. He along with Gajraj intervened on account of which all the accused persons gave beating to Ashok Kumar. He also stated that there was no enmity of the accused persons with the deceased. There is a lengthy cross examination. He admitted in the cross examination that he had witnesses the incident from 40-45 ft. He was also confronted with his earlier police statement Ex.P 2 wherein he has not mentioned the fact of causing injuries by Satish Kumar and others to Ashok Kumar. He simply stated that police might have not written his statement correctly. He also admitted that he had seen Sanjay alias Banti causing injuries by Gupti to deceased Ashok Kumar. 8. PW 1 Dr. Om Prakash Sharma stated that he examined PW 2 Gajraj to Singh and prepared the injury report Ex.P 2. He noted the following injuries:- (1) Abrasion 1/2" X 1/4' on right side of Nose. (2) Lacerated 1/4" X 1/10' X muscle deep on the tip of left ring finger. Both the injuries were simple in nature caused by blunt object. Om Prakash Sharma stated that he examined PW 2 Gajraj to Singh and prepared the injury report Ex.P 2. He noted the following injuries:- (1) Abrasion 1/2" X 1/4' on right side of Nose. (2) Lacerated 1/4" X 1/10' X muscle deep on the tip of left ring finger. Both the injuries were simple in nature caused by blunt object. He also conducted the post-mortem of the dead body of Ashok Kumar vide post-mortem report Ex.P1. He noticed following injuries on the person of deceased Ashok Kumar:- (1) Incised wound 1"X 1/2" X cavity deep below interior angle of left scapula. (2) Incised wound X 1/2" X cavity deep below to injury No. 1. (3) Incised wound 1- 1/2" X 1/2' X cavity deep just below ribs left side of the abdomen. Omentum coming out. (4) Abrasion 1" X 1/2" on right knee. (5) Abrasion 1" X 1/2" on right wrist medially. (6) Abrasion 3/4"X ⅓" on side of right wrist. (7) Swelling all over the nose. He found the injuries No. 1 to 3 caused by sharp edged weapon and other injuries by blunt weapon. On opening the body, he found that the blood had collected in the left lung thoresic cavity. In his opinion the cause of death was shock and haemorrhage due to injury to left lung. He also stated that the injuries to lung being injuries No. 1 & 2 were sufficient in the ordinary course of nature to cause death. He also stated that injuries No. 1 & 2 were on the back. 9. It is significant to notice that the prosecution case has been found to be false to the extend that Shivdayai exhorted the accused persons, so as the participation of Surendra Kumar, resulting into their acquittal in the subsequent trial referred to above. Out of remaining five accused persons, the participation of accused Rajpal and Lakhan Singh also appears to be doubtful. According to eye witnesses PW 2 Gajraj Singh and PW 3 Manoj, Surendra Kumar was carrying an iron rod and Lakhan hockey in his hand. The injuries caused by the blunt object are simply abrasions. If both the accused persons would have participated carrying an iron rod and hockey in their hands, they could have caused some more serious injuries. The participation of these two accused persons becomes doubtful. The injuries caused by the blunt object are simply abrasions. If both the accused persons would have participated carrying an iron rod and hockey in their hands, they could have caused some more serious injuries. The participation of these two accused persons becomes doubtful. Once the presence of these two accused persons is excluded the conviction of the appellants under section 302/149 I.PC. cannot be sustained. It is of course true that their case can still be sustained under section 302/34 I.P.C. both the eye-witnesses does not say a word if any other accused except Sanjay alias Banti caused injury to deceased Ashok Kumar. The relevant part of the statement of PW 2 Gajraj is extracted as follows:- " buesa ls lat; us viuh xqIrh dh pksV v'kksd dqekj] tks gekjs lkFk Fkk ds isV esa ekjh] ftlls og tehu ij fxj x;kA blds ckn lrh'k us esjs rFkk eukst dqekj ij ryokj ls okj fd;kA ftlls pksV esjh cka;h gkFk dh vaxqyh ij ryokj dh pksV yxhA " PW 3 Manoj Kumar stated as follows:- " v'kksd dqekj ds isV esa cUVh us xqIrh dh pksV ekjh vkSj ftlls v'kksd dqekj uhps fxj iM+kA uhps fxjus ij lrh'k dqekj us v'kksd ij ryokj ls geyk fd;k bl ij eSaus o xtjkt us NksM+us dh dksf'k'k dh] bl ij lrh'k dqekj us ryokj ls xtjktflag ij geyk dj fn;kA ftlls xtjktflag ds ck;sa gkFk dh vaxqyh ij ryokj dh pksV yxhA bl ij lHkh eqyfteku v'kksd dqekj dks ekjus yx x;s] lHkh eqyfteku gesa ekjus yx x;sA geus cpko fd;kA " 10. From the above statements, injuries No. 1 & 2 cannot be attributed to Satish Kumar, Raj pal, Ashok or Lakhan Singh. Sanjay has been attributed only injury No. 3. If seven persons armed with deadly weapons would have attacked, there could not be the small number of injuries, as discussed above. The eye witnesses have not said, as to who caused fatal injuries No. 1 & 2. Taking into consideration the medical evidence the incident could not have taken placed in the manner alleged. Witnesses PW 2 Gajraj Singh and PW 3 Manoj Kumar have suppressed the genesis of the occurrence by not disclosing the true facts. Thus, the participation of Satish, Rajpal, Lakhan and Ashok in the incident has not been established by the prosecution beyond reasonable doubt. Witnesses PW 2 Gajraj Singh and PW 3 Manoj Kumar have suppressed the genesis of the occurrence by not disclosing the true facts. Thus, the participation of Satish, Rajpal, Lakhan and Ashok in the incident has not been established by the prosecution beyond reasonable doubt. Thus, these appellants are entitled to be acquitted of offence under section 302/149 or 302/34 I.P.C. 11. As far as accused Sanjay alias Banti is concerned, both the witnesses namely PW 2 Gajraj Singh and PW 3 Manoj are consistent that he thrust-ed Gupti in the stomach of deceased Ashok Kumar. This part of the statement finds corroboration from the medical evidence. However, if the appellant Sanjay alias Banti intended to cause murder of Ashok Kumar, he could have inflicted more than one injury. The injury attributed to him i.e. injury No. 3 is not the fatal injury. In view of this, it cannot be said that he intended to cause murder of Ashok Kumar. He can only be attributed the knowledge to the effect that his act was likely to cause death. In view of this, it is a case of culpable homicide not amounting to murder punishable under section 304 Part II I.P.C. 12. Consequently, the appeal is partly allowed. The conviction of appellant Sanjay alias Banti for offence under section 302 I.P.C. is converted into offence under section 304 Part II I.P.C. The sentence of imprisonment for life is set aside. He is said to be in jail since arrest i.e. June, 1995. The sentence is reduced to the period already undergone. 13. As appellant Rajpal has died, his appeal stands abated. 14. The appellants Satish Kumar, Ashok Kumar and Lakhan Singh are acquitted of offence under section 302/149 I.P.C. They are also acquitted of the allied offences. They are on bail. Their bail bonds stand discharged. 15. The appellant Sanjay alias Banti is in jail. He shall be released forthwith if not required in any other case.Appeal Partly Allowed. *******