S. K. AGARWAL AND IMTIYAZ MURTAZA, JJ. Heard learned Counsel for the appellants and learned A. G. A. 2. The impugned appeal was preferred by the above appellants against their conviction under Section 302/34 I. P. C. and Section 323/34 I. P. C. and sentence of life imprisonment and 6 months R. I. awarded to them by the trial Court. The sentences are to run concurrently. 3. The occurrence in the present case took place at 8. 00 a. m. in front of the house of informant Smt. Kalawati in village Chhibaiya, Police Station Sarai Inayat, district Allahabad. According, to the prosecution there was a piece of land in the North of house of the deceased Bishram Das. The appellants had an eye upon it. They were insisting upon to raise their house over it. Bishram Das was on litigating terms in civil Court in respect of the said land with Harbhan Singh. On the date of occurrence the appellants led by Ram Surat came to the spot and professed to raise their house there. The informant and his son Bishram Das told Ram Surat that let the litigation end against him thereafter only he can raise the house. The accused persons hurled abuses on being asked not to do so. They assaulted Bishram Das and his mother with Lathis. Their alarm attracted many people from the village to the scene of occurrence. Since the F. I. R. was taken down only under Section 323 and 504 I. P. C. a non-cognizable offence so it was taken down in the briefest possible manner by the constable clerk. 4. In the past also Bishram had lodged a report against Harbhan Singh and others under Sections 504 and 506 I. P. C. about a dispute in respect of this very land. The said incident occurred when the informant was raising a house upon the disputed land. According to the prosecution the land was earmarked for Harijans and was occupied by the family members and others belonging to the community of the informant. 5. Present occurrence took place on 27-2-1979 at 8. 00 a. m. The deceased was about to go to his school on a bicycle. A first information report of the incident was registered at the concerned police station on the same date at 13. 5. Present occurrence took place on 27-2-1979 at 8. 00 a. m. The deceased was about to go to his school on a bicycle. A first information report of the incident was registered at the concerned police station on the same date at 13. 15 p. m. Both the injured Smt. Kalajwati and Bishram Das were examined medically on the same day at P. H. C. by P. W. 3, Dr. Govind Saran. They were examined at 3. 30 p. m. on the said date itself. On the person of injured Bishram Das following injuries were found: 1. Lacerated wound 0. 5" x 0. 25" x muscle deep, Rt. Side of head 3" above Rt. Eye brow. Simple, blunt weapon. 2. Abrasion 0. 5" x. 25" back of the elbow joint. Simple. Blunt: Weapon. 3. Contusion 2"x 1" with swelling 3. 5" x 2. 5"on the base of the left thumb. Nature simple, joint dislocation of left thumb movement restricted. Blunt weapon. 4. Incised wound 0. 5"x 0. 1 "x muscle deep on the right moreover bony promirince of the waiste x-ray was advised. 6. All the injuries except injury No. 4 were caused by blunt object. Injury No. 4 was from a sharp edged weapon. It was only muscle deep, The neck was found dislocated, x-ray was advised. Injury No. 1 was referred for x-ray examination. According to this doctor injury Nos. 1 and 2 were found simple. Injury No. 3 was found grievous in nature. It was on the thumb. 7. Kalawati was medically examined on that very day by the said doctor at 4. 00 p. m. She had four contusions on her person. They are mainly upon left hand, upper arm on the right shoulder joint, middle of the back 1. 5" below the injury No. 4. 8. The post-mortem examination of Bishrarn Das was conducted by P. W. 2 Dr. Anil Kumar. His injuries are as under: 1. L. W. 2. 5" x 0. 25" x bone deep on the right side of scalp 3" above right eyebrow. 2. Abrasion 0. 5" x 0. 25" back of the elbow joint (L ). 3. Contusion 2" x 1" at the base of left thumb. 4. Incised wound 0. 5" x 0. 1" x muscle deep on bony prominence of (R) iliac crest. 5. Abrasion 1/4" x 1/4" on the top of (R) shoulder. 9. 2. Abrasion 0. 5" x 0. 25" back of the elbow joint (L ). 3. Contusion 2" x 1" at the base of left thumb. 4. Incised wound 0. 5" x 0. 1" x muscle deep on bony prominence of (R) iliac crest. 5. Abrasion 1/4" x 1/4" on the top of (R) shoulder. 9. Under injury No. 1 parietal bone was found fractured in the right side. Heamatoma was also detected on the right side of the back of skull. His stomach and small intestine was found empty. Large intestine was found full. The death, according to P. W. 2 Dr. Anil Kumar, was due to injury No. 1 and as a result of Coma. The deceased died on 28-2-1979 at about 10. 00 a. m. In the cross-examination P. W. 2 has admitted that injury No. 1 could also be caused by hurling of brickbat it could also be due to fall upon a brick. If the deceased was pushed hard and he falls striking his head on a brick this injury can be caused on his head. Rest of the injuries of the deceased, according to doctor, were/simple and superficial. Injuries No. 2 and 3 could be the result of brickbat or by a is brick or due to friction on a piece of brick. Injury No. 4 could be caused a stone having sharp edges. P. W. 2 had admitted that except injury No. 5 of Bishram Das all the injuries of both injured could be caused by brickbats. He further stated that if a stone is sharp like a knife, injury No. 5 could also result from it. All these suggestions were hypothetical in nature so the doctors response was casual. 10. The prosecution in support of its case examined 3 eye-witnesses. They are Munni Lal, P. W. 4, Smt. Kalawati Devi, mother of the deceased, P. W. 5 and Ram Tawwakal, uncle of the deceased, P. W. 6. P. W. 7 is Head Constable who registered the two reports of the prosecution as well as the defence. Report of Karedin alias Lala was registered at the said police station at 1. 00 p. m. on the same day. Both these facts were proved by this witness. The prosecution claimed that report of Kalawati was not registered first by the police deliberately. It was registered 15 minutes later from the report of the defence. Report of Karedin alias Lala was registered at the said police station at 1. 00 p. m. on the same day. Both these facts were proved by this witness. The prosecution claimed that report of Kalawati was not registered first by the police deliberately. It was registered 15 minutes later from the report of the defence. Smt. Kalawati, P. W. 5 has stated that she reached the police station much earlier than the accused but her report was not accepted due to presence of a senior officer. She was told by the policemen on duty that after the departure of the officer, the report could be registered. Presence of the officer is proved at the concerned police station by G. D. No. 22 prepared at 1. 30 p. m. It shows that the Station House Officer of this police station at this time left alongwith the Circle Officer. This proves the presence of the Circle Officer at the police station when she came at the police station. To that extent the statement of P. W. 5 stands fully corroborated. P. W. 7 has made a calculated response to the question about the arrival of an officer at the police station by saying that no such entries were made about their arrival and departure in the G. D. P. W. 8 Constable Chandra Kant has proved the report of Bishram Das lodged on 26-3-1977. It is Ex, Ka. 13. We have already made necessary discussion about this report earlier. P. W. 9 is D. P. Sisodiya, S. I. who has prepared the inquest memo on the dead body of Bishram Das. It was prepared on 28-2-1979 from 3. 05 p. m. and concluded it by 5. 30 p. m. After the completion of the inquest he dispatched the dead body through Constable Chandra Prakash to the mortuary for post-mortem. P. W. 10 is Munirji Misra, S. I. who conducted the investigation and recorded the statements of the eye- witnesses. It is admitted to this witness that at the police station he did not record the statement of P. W. 5 Kalawati or Bishram Das or any one else. The statement was recorded after he reached the spot. The case was also converted under Section 302 I. P. C. lateron on the receipt of information of his death. It is admitted to this witness that at the police station he did not record the statement of P. W. 5 Kalawati or Bishram Das or any one else. The statement was recorded after he reached the spot. The case was also converted under Section 302 I. P. C. lateron on the receipt of information of his death. The investigation of the case was commenced by him from 4-3-1979 though the report was registered on 27-2-1979 and despite knowledge of the fact that Bishram Das died at 10. 00 a. m. onh 28-2-1979. P. W. 11 is Radhey Shyam Dwivedi, S. I. He was-entrusted with the enquiry with regard to disputed land. He went to the spot and checked plot Nos. 791 and 792. He also recorded the statements of Kalawati, Tejai, Ram Tawankal, uncle of the deceased, etc. According to him measurement of the alleged disputed plot is 11 Biswas. Witnesses showed him these plots. Admittedly he did not prepare any map of the lands. This is the entire evidence produced by the prosecution in support of its case. 11. The defence denied the occurrence and claimed that the land did not belong to informant. It belonged to Haribhan Singh and his family members. A market was organised regularly there. It is further alleged by Karedin alias Lala that the deceased and other members of his family were making water in front of his house. He raised an objection to their indecent behaviour. These persons had hurled abuses and belaboured him with Lathis. According to him the Lathi had a pointed iron fixed on its head. He was medically examined on the same day. His injury report is Ex. Ka. 3 on the record. He had suffered a punctured wound 2 cm. x 1-1/2 cm. x 1-1/2 cm. on the left side of the face 2-1/2 cm. below the left eye. His other injuries were 3 abrasions. According to Medical Officer Dr. K. N. Saxena who was examined by the defence in proof of their injury that injury No. 1 could be caused if Lathi was fixed with a nail 1 cm. in diameter. He further stated that apart from thumb of Lala thumb mark of Chowkidar was also procured on it. His injuries were examined at SAD, Jhunsi, Allahabad. K. N. Saxena who was examined by the defence in proof of their injury that injury No. 1 could be caused if Lathi was fixed with a nail 1 cm. in diameter. He further stated that apart from thumb of Lala thumb mark of Chowkidar was also procured on it. His injuries were examined at SAD, Jhunsi, Allahabad. Instead of getting himself examined at P. H. C. , Sarai Inayat, he went to Jhuasi for his medical examination. His injuries were examined on 27-2-1979 at 4. 30 p. m. He was brought to the doctor by Ram Surat one of the appellant according to the defence. D. W. 1 in his statement in Court contradicted it and said he was brought to him by a Chowkidar. It is not so available on his injury report. It is admitted by P. W. 7 that at the time of registration of the defence case, he had examined the injuries of Lala and noted them in G. D. No. 20. He further stated that this Lala came to the police station all alone. Ram Surat did not accompany him. His report was registered at 1. 00 p. m. . If this statement is true how Ram Surat was there when he was medically examined. Evidence on record does not prove it. 12. The prosecution witnesses have denied out right the defence case. We also do not subscribe to their contention that the aggression was caused from the prosecution side. It has come in evidence that they were working with Haribhan Singh as his labour. They belong to Paasi community. The deceased, his mother and the witnesses are Chamar by caste. We have very closely examined the evidence on P. W. 4,5 and 6, the three eye-witnesses. No doubt one of them is the mother of the deceased but she is an injured witness. The other witness is uncle of the deceased P. W. 6 is Ram Tawankal. From Munni Lal the defence has tried to illicit (sic elicit) that he too is related to the deceased. 13. Taking up the evidence of Munni Lal, P. W. 4, first, we find that he has elaborated the prosecution story in full detail. His claim was that he had gone to the flour mill for taking his ground flour after the sunrise. The month of occurrence is February. The sunrise definitely will be after 6. 13. Taking up the evidence of Munni Lal, P. W. 4, first, we find that he has elaborated the prosecution story in full detail. His claim was that he had gone to the flour mill for taking his ground flour after the sunrise. The month of occurrence is February. The sunrise definitely will be after 6. 00 a. m. Therefore, the time of occurrence by and large is proved by him. He also stated that when Bishram Das came out of his house to go to school, Ram Surat called him. The Chakki was only 30-35 paces from the place of occurrence. On hearing the exchange of words between Ram Surat and the deceased, he came to the spot and heard all that transpired between them. Ram Surat demanded from the deceased that he will raise his house on the disputed land. Bishram Das responded to it by telling him that until my civil litigation is going on with Harbhan Singh how can they raise their house. The land is to be measured. Ram Surat told him that he will lay the foundation of his house on the said land just now. He further told his companions that Bishram Das will not agree without being assaulted. His brothers also by then arrived at the scene and had started plying their in this on the exhortation of this accused. Much stress has been laid upon some lapses brought out in his cross-examination in connection with his 161 Cr. P. C. statement. The investigation, as earlier said, was started on 4-3-1979 i. e. about 6 days later. His statement was recorded immediately thereafter at his house by the Sub Inspector. It is pertinent to mention here that the information of death of Bishram Das was received at the concerned police station soon after the death in the morning at 10. 00 a. m. despite that the investigation did not commence till 4- 3-1979, it shows the police laxity in the matter. Harbhan Singh being Sabhapati of the village Panckayat must have wielded considerable influence upon the local police. As earlier discussed arrival of Circle Officer is alleged by Smt. Kalawati P. W. 5 when she reached, the police station for registering her report. Yet the report of the defence was registered first. Harbhan Singh being Sabhapati of the village Panckayat must have wielded considerable influence upon the local police. As earlier discussed arrival of Circle Officer is alleged by Smt. Kalawati P. W. 5 when she reached, the police station for registering her report. Yet the report of the defence was registered first. Her claim is that Ram Surat arrived at the police station later than her yet his report was registered by the police before registering her F. I. R. This is an exhibition of the influence of Harbhan Singh upon the local police. According to this lady Karedeen alias Lala did not arrive at the police station. Only Ram Surat came there and went away after recording of his report. The fact is further corroborated by Karedins medical examination report that he was accompanied by Ram Surat. The statement of the Head Constable that he had noted down his injuries in the General Diary, therefore, stands belied. It clearly indicates that the police was in collusion with the accused and had deliberately registered the report of this man first and his injury noted down therein lateron on receiving his injury report. The G. D. Was left unmoved for sometime is clearly discernible. The statement of P. W. 7 that Ram Surat never came to the police station, therefore, is beyond recognition and cannot be accepted as correct. It is further fortified from the fact that if Karedeen alias Lala came to the police Station to register his report why he was despite his injuries, not sent for his medical examination by the police with a Chitthi Majroobi. The omission referred to in the cross- examination by the defence in the light of the observations made above can not be given much credence by us. Four persons were wielding lathis upon this Karedeen alias Lala. He had suffered only 4 injuries. He-sustained a punctured wound on the left side of face and abrasions on the left elbow joint. Rest of the injuries was abraded contusion on the left thigh. No doubt the medical officer has noted these injuries as fresh but we have serious doubt about these injuries being fresh because the doctor stated that he was brought by a Chowkidar though his injury report mentions "brought by Ram Surat". Rest of the injuries was abraded contusion on the left thigh. No doubt the medical officer has noted these injuries as fresh but we have serious doubt about these injuries being fresh because the doctor stated that he was brought by a Chowkidar though his injury report mentions "brought by Ram Surat". The story that the prosecution side including the deceased and all the witnesses were making water in front of his house also does not inspire confidence. Admittedly none of them including 3 eye-witnesses and injured have any animosity with these accused persons. Prima facie also there was absolutely nothing which may impel them to enact this kind of mischief. The omission to the fact that in the statement recorded by Sub Inspector 6-7. days after the occurrence these witnesses had not said that Smt. Kalawati Devi was assaulted only by Kewala and Lala whereas in the F. I. R. it is clearly mentioned that all the assailants started belabouring with Lathi the informant and her son. The deceased had suffered in all five injuries including the wound on the scalp of a blunt object. Injury No. 5 was an abrasion on the top of shoulder. In the post-mortem no such injury was found by the medical officer. All these injuries apparently were of blunt object. The prosecution for the first time during trial had come out with the case that Ram Surat was the author of the first injury upon Bishram Das. This fact did not find any mention even in their 161 Cr. P. C. statements. In view of the facts and circumstances, if we accept the cross-examination with regard to their failure to disclose this fact during 161 Cr. P. C. statement of theirs, the author of this injury would not be discernible. A solitary injury upon the scalp of the deceased was noticed which proved fatal. In the situation in which we find ourselves, it would be difficult to uphold the conviction of these appellants under Section 302/34 I. P. C. It would also be difficult to accept that the common intention of the accused persons was to cause death of Bishram Das. Heated exchange of words and abuses between two is clearly available from the evidence on record. Heated exchange of words and abuses between two is clearly available from the evidence on record. In this view of the matter, the offence, in our opinion, does not travel beyond Section 325 I. P. C. None of these appellants could be held responsible for the solitary fatal injury for the omission that had been proved and is available to the defence from the evidence of the prosecution witnesses. Failure even after 6-7 days to mention these facts assume serious significance. The improvement in trial Court and attribution of specific role to Ram Surat for the fatal injury in this regard, therefore, is a serious modulation in the case and was alleged to wreak vengeance. 14. In this view of the matter we are of the opinion that the conviction of the appellants cannot be upheld for the offence of murder. But for the above discussion we do not find any other serious infirmity in the evidence of these eye-witnesses despite their being close relatives of the deceased. It was a clash between the members of two different scheduled caste communities of the locality inhabited mainly by the people belonging to the community of the informant. The house of Ram Surat was at a considerable distance from the spot of occurrence. It has come in the evidence that he had constructed a new house in the vicinity of place of occurrence earlier. It cannot be done without the support of Sabhapati i. e. Harbhan Singh. The evidence that they were working as labour with Harbhan Singh has gone un- challenged. He was contesting a civil suit filed by Bishram Das and others in respect of the disputed land for the last 7 years. He stood on the back of the accused persons to recover possession of this land allegedly for himself. His patience due to longevity of civil proceedings seemingly had exhausted. He had put forward these accused to regain his possession. The enquiry made by P. W. 11 provided sufficient support to us in the above reference. The parties have also contested under Section 133 Cr. P. C. It was won by Bishram Das. He had also taken the proceedings to this Court in respect of the said land. This all must have infuriated the Sabhapati who provoked these appellants against Bishram deceased to take the law into their hands because they were assured of his protection. The parties have also contested under Section 133 Cr. P. C. It was won by Bishram Das. He had also taken the proceedings to this Court in respect of the said land. This all must have infuriated the Sabhapati who provoked these appellants against Bishram deceased to take the law into their hands because they were assured of his protection. It is well proved from the circumstances available on the record. 15. In this view of the matter, we have no doubt in our mind that the incident had occurred but the manner as alleged by the prosecution as earlier discussed has left something more to be desired. The offence under Section 302/34 I. P. C. is not made out. The case of the prosecution was deliberately modulated during trial for the first time to fix the liability of Ram Surat for the said injury No. 1 of Bishram Das which ultimately proved fatal. We find that the conviction of these appellants could be very well modified to one under Section 325 I. P. C. with the aid of Section 34 I. P. C. and they can also be convicted under Section 323 read with 34 I. P. C. 16. Consequently we hold that the conviction and sentence of the appellants under Section 302/34 I. P. C. is modified to under Section 325/34 I. P. C. and they are sentenced to three years R. I. and a fine of Rs. 3000/-is also imposed upon each appellant. In default of payment of fine, they shall undergo rigorous imprisonment for six months. The conviction and sentence of the appellants under Section 323/34 I. P. C. is confirmed. The fine imposed shall be paid within sixty days from today. Out of the realisation of this fine, Rs. 8000/-shall be paid to the mother of the deceased Kalawati if she still survive. Their bail bonds are cancelled and sureties are hereby discharged. The appellants are called upon to surrender before the concerned magistrate to serve out their sentences. The appeal, therefore, stands partly allowed. .