JUDGMENT 1. - This appeal impugns the judgment dated February 13, 2001 of the learned Special Judge, SC/ST (Prevention of Atrocities Cases) Kota in Sessions Case No. 118/1999 whereby the appellants were convicted and sentenced as under: Murlidhar: U/s 302/34 IPC To suffer Imprisonment for life and fine of Rs. 2000/- in default to further suffer rigorous imprisonment for six months. Hansraj u/s 302 IPC To suffer imprisonment for life and fine of Rs. 2000/- in default to further suffer rigorous imprisonment for six months. 2. It is the prosecution case that on October 12, 1999 at 7.00 AM when Arjun Harijan (Pw. 3) and Radhey Shyam Bairwa took their female buffaloes for grazing near den, they on the way found that one buffalo was assaulting three persons, who cried for help. In order to provide them help when Arjun Harijan reached near a tractor, he saw two girls running away. After about three hours i.e. around 10 AM Murli and Hansraj (appellants) armed with lathi and sword came over there and enquired as to why their girls were asked to leave the place. When the conversation was going on Pappu (deceased) suddenly appeared. In the mean time Shanti Lal Dhobi, Rajendra Kumar Dhobi, Hemant Khati, Hemraj Meghwal, Pappu Mali, Chandu Mali alongwith ten-twelve persons having lathis and spades also came over there and started beating the informant and Pappu. Hansraj gave one blow with sword while Murli inflicted lathi blow on the person of Pappu, who died on the spot. Parcha bayan of Arjun was recorded and on the basis of said parcha bayan FIR under sections 147, 148, 149, 302 IPC was registered and investigation commenced. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge SC/ST (Prevention of Atrocities Cases) Kota. Charge under Sections 148, 302/149, 323/149 IPC and Section 3(2)(5) SC/ST (PA) Act were framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Section 313 Cr.RC., the accused claimed innocence. In defence one witness was examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. 3. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Section 313 Cr.RC., the accused claimed innocence. In defence one witness was examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. 3. The only submission of the learned counsel for the appellants is that the incident took place all of a sudden and there was no premeditation on the part of the appellant Hemraj. According to the autopsy surgeon the deceased could have been saved if proper treatment was given to him. In these circumstances the case does not travel beyond section 304 Part II IPC. So far as the allegations against appellants Murli is concerned, they are vague in nature and when on the same allegations nine other co-accused were acquitted there was no reason to convict appellant Murli. Per contra learned Public Prosecutor supported the impugned judgment and canvassed that the appellants had been rightly convicted and sentenced. 4. In order to appreciate the rival submissions we have closely gone through the record. Dr. Shambhu Dayal Sharma (Pw. 13), who performed the autopsy on the dead body, deposed that vide Post Mortem report (Ex.R21) the deceased sustained following ante mortem injuries : "(i) Incised wound 10cm x 1/2cm X Bone deep above right ear. (ii) Incised wound 7cm x 1/2cm X Bone deep right parietal Bone, fracture and broken of right parietal bone (iii) Bruise 7" x 1/4" right palm. (iv) Bruise 7" x 1" right middle ⅓ back. (v) Br. 3 1/2" x 1 1/2" right side upper ⅓ back. (vi) Br. 9" x 6" right upper ⅓ back. (vii) Br. 6" x 1" Lower ⅓ back. In the cross examination Dr. Shambhu Dayal Sharma (Pw. 13) however stated that if proper treatment would be available the deceased could have been saved. 5. A glance at the testimony of Arjun Harijan (Pw.1) and Anari Bai (Pw.2) goes to show that the occurrence took place suddenly and quarrel really arose from a trivial issue. As many as 11 persons, including the appellants, were charge sheeted but except the appellants all other co-accused have been acquitted. Appellant Murli was armed with lathi but the deceased did not receive any injury caused by blunt weapon. As many as 11 persons, including the appellants, were charge sheeted but except the appellants all other co-accused have been acquitted. Appellant Murli was armed with lathi but the deceased did not receive any injury caused by blunt weapon. Case of appellant Murli in our opinion is not distinguishable with that of the case of other nine co-accused who were given benefit of doubt. 6. Fact situation noticed by us may be summarised thus : (i) The occurrence took place all of a sudden. (ii) There was no premeditation on the part of accused and the quarrel really arose from a trivial issue. (iii) Autopsy Surgeon deposed that the deceased could have been saved if proper treatment was given to him. (iv) Allegations against appellant Murli are vague in nature and it could not be established that appellant Murli shared common intention with appellant Hansraj. (v) Co-accused Hemraj, Rajendra, Ramkailash, Ashok Kumar, Hemant, Shanti Lal, Prem Chand, Devi Shankar and Chandra Prakash have been acquitted by the trial court and the case of appellant Murli is not distinguishable with that of the case of said co-accused persons. (vi) Appellant Hansraj did not act in unusual and cruel manner and he is charged to have inflicted single injury on the person of deceased. 8. Having carefully analysed the evidence, we are convinced that the appellant hansraj had no intention to kill the deceased but he certainly knew that the injury which was inflicted by him was likely to cause death. Looking to the fact that the incident occurred suddenly and arose from a trivial issue and also the fact that the doctor has stated that if proper treatment was given to the deceased he could have been saved, we are of the opinion that the accused is guilty of committing culpable homicide not amounting to murder punishable under section 304 Part II IPC. In so far as the appellant Murli is concerned, we are of the view that the prosecution has failed to establish the charge under section 302 read with 34 IPC against him beyond reasonable doubt. The appellant Hansraj is in continuous custody since October, 1999. In our opinion, the ends of justice would be met in sentencing him to the period already undergone by him in confinement.9. The appellant Hansraj is in continuous custody since October, 1999. In our opinion, the ends of justice would be met in sentencing him to the period already undergone by him in confinement.9. For these reasons we dispose of the instant appeal in the following terms : (i) Appeal of appellant Murlidhar stands allowed and he is acquitted of the charge under section 302 read with 34 IPC. He is on bail. He need not surrender and his bail bonds stand discharged. (ii) Appeal of appellant Hansraj stands allowed and instead of section 302 IPC we convict him under section 304 Part II IPC and sentence him to the period already undergone by him in confinement. Appellant Hansraj, who is in Jail shall be set at liberty forthwith, if not required to be detained in any other case. Appeal partly allowed. *******