Judgment M.L.Visa, J. 1. Being aggrieved by the judgment dated 17-8-2001 and order dated 20-8-2001 passed by 1st Additional Sessions Judge, Jehanabad in Sessions Trial No. 143 of 1994 convicting and sentencing all the three appellants to undergo rigorous imprisonment for life u/s. 302/34 of Indian Penal Code (in short "I. P. C.") for causing the death of Ramashray Sharma and convicting them under Section 325/34 of I. P. C. for voluntarily causing grievous hurt to informant Ramadhar Sharma (having the same name as one of the appellants but since dead) but passing no separate sentence under this head, the appellants have preferred this appeal. 2. The case of prosecution, in short, is that on 19-1-1992, informant Ramadhar Sharma at about 7.30 a.m. was tying his bullocks in his Bathan situate in the Parti land in front of his Dalan when appellant Ramadhar Sharma came there and asked him not to tie his bullocks there. On reply of the informant that he used to tie his cattle there, all the three appellants brought lathis from their house and started assaulting the informant causing bleeding injuries on his head and injuries on his both arms, right elbow and right knee. On hulla of informant, his brother Ramashray Sharma came there for his rescue and then appellant started assaulting him also inflicting injuries on left side of his head, on his left eye and palm of right hand. Ramashray Sharma, after receiving injuries, fell down and became unconscious. On hulla, Suryadeo Sharma (P. W. 2), Baijnath Sharma (P. W. 3) and other villagers came there and saw the occurrence and appellants fled away towards their house. The informant, with the help of Shyam Kishore Sharma (P. W. 6), Jai Kishore Sharma (P. W. 5) took his injured brother to Referral Hospital where his Fard-e-bayan (Exhibit-2) was recorded by Shri Suresh Singh, the then sub-Inspector of Mukhdumpur Police Station (not examined) and a case under Secs. 341, 324/34 of I. P. C. was registered. Subsequently injured Ramashray Sharma died and sec. 302 of I. P. C. was added to first information report. The Police, after investigation, submitted chargesheet. Cognizance of the case was taken and the case was committed to the Court of Session where charges under Secs. 302/34 of Indian Penal Code, 1860 for causing the death of Ramashray Sharma and sec. Subsequently injured Ramashray Sharma died and sec. 302 of I. P. C. was added to first information report. The Police, after investigation, submitted chargesheet. Cognizance of the case was taken and the case was committed to the Court of Session where charges under Secs. 302/34 of Indian Penal Code, 1860 for causing the death of Ramashray Sharma and sec. 304/34 of I. P. C. for making an attempt to commit murder of informant were framed against the appellants and on their denial of charges, appellants were put on trial and after trial, they were held guilty and were convicted and sentenced as indicated above. 3. Altogether eleven witnesses on behalf of prosecution have been examined in this case. Informant Ramashray Sharma died during trial, therefore, he could not be examined. Awadhesh Prasad (P. W. 1) is a formal witness who has proved formal first information report (Exhibit-1) Babunand Prasad Diwakar (P. W. 7) is also a formal witness who has proved the Fard-e-bayan (Exhibit-2). Ram Parvesh Sharma (P. W. 8) is also a formal witness and is nephew of informant and has said that informant is dead and he has proved signature of informant (Exhibit-2/1) and signature of Jai Kishore Sharma, P. W. 5 (Exhibit-2/2) on Fard-e-bayan. Dr. Parsu Ram Sharma (P. W. 9) is the doctor who had examined the injuries of informant and deceased Ramashray Sharma. Dr. Suniti Kumar (P. W. 10) is the doctor who held post mortem examination on the dead body of Ramashray Sharma. Shyam Sunder Singh (P. W. 11) is the Investigating Officer of this case. Surajdeo Sharma (P. W. 2), Baijnath Sharma (P. W. 3), Hardeo Sharma (P. W. 4), Jai Kishore Sharma (P. W. 5) and Shyam Kishore Sharma (P. W. 6) are said to be witnesses to occurrence. 4. Dr. Parsu Ram Sharma (P. W.9), in his evidence, has stated that on 19-1-1992, he was posted at Makhdumpur Referral Hospital as Medical Officer and on the same day at 9.58 A.M. he examined informant Ramadhar Sharma and found the following injuries on his person : (1) Lacerated wound 3" x 1/4" on scalp. (2) Swelling 2" in diametre on left shoulder. (3) Swelling 2" in diameter on right shoulder, (4) Right and left knee joint abrasion 1" x 1/4" (5) Swelling on right elbow joint 2" in diameter. According to him, injuries Nos. (2) Swelling 2" in diametre on left shoulder. (3) Swelling 2" in diameter on right shoulder, (4) Right and left knee joint abrasion 1" x 1/4" (5) Swelling on right elbow joint 2" in diameter. According to him, injuries Nos. 2 to 5 were simple in nature caused by hard and blunt substances and about injury No. 1, he advised for x-ray and after x-ray report, he found this injury grievous in nature and this injury was also caused by hard and blunt substance. He has proved his injury report and supplementary injury report which are marked Exhibits-3 and 3/1. He has further said that on the same day at 9.55 A.M., he had examined deceased Ramashray Sharma and found following injuries on his person : (1) Swelling 4" x 1/2" longitudinal on right side of scalp including forehead. (2) Swelling 1" x 1-1/2" on left side forehead with haemorrhage of the left eye. (3) Lacerated wound 1" x 1/4" x 1/4" on right hand. He has further said that injuries Nos. 1 and 2 were grievous and injury No. 3 was simple in nature and all injuries were caused by hard and blunt substance and time elapsed was about four hours and patient had sign of severe head injury so he was referred to Patna Medical College and Hospital (In short "P. M. C. H."). He has proved injury report in respect of the aforesaid injuries which is marked Exhibit-3/2. 5. Dr. Suniti Kumar (P W 10) has said that on 21-1-1992, he was posted as Medical Officer at PMCH and on the same day at: about 9.10 A. M., he held post mortem examination on the dead body of Ramashray Sharma and found the following ante mortem injuries : (1) Left eye was found black. (2) Lacerated wound of 1" x 1/2" muscle deep on upper eye lid on left hand. (3) Bruise of the size 3" x 1" over right forehead and anterior portion of skull, anterior-posteriorly 1" above right eye brow and 1" from midline. (4) Lacerated wound of the size 1/2" muscle deep over right upper limb 4" above radial aspect of wrist joint. (3) Bruise of the size 3" x 1" over right forehead and anterior portion of skull, anterior-posteriorly 1" above right eye brow and 1" from midline. (4) Lacerated wound of the size 1/2" muscle deep over right upper limb 4" above radial aspect of wrist joint. He has further said that on dissection, there was extensive clot under the scalp with depressed and comminuted fracture of frontal both parietal bones in the area of 6" x 3" and on the removal of skull bones, there was extra dural and subdural haematoma over whole of the brain. According to him, time elapsed since death was twenty four hours and cause of death was head injury inflicted by hard and blunt object. He has proved his post mortem examination report which is marked Exhibit-4. In cross examination, he has ruled out the possibility of sustaining injuries which he found, by a person by fall on hard substance. His evidence establishes that death of deceased Ramashray Sharma was homicidal. 6 Suryadeo Sharma (P. W. 2), in his evidence, has said that at the time of occurrence, he was in his house and on hearing hulla when he went in the dalan of informant, he saw that informant was tying his bullock on his land but appellants were raising objection to that but in spite of it, informant tied his bullocks and, thereafter, appellants started assaulting informant with lathi. He has said that appellant Ramadhar Sharma gave a lathi blow on the head, appellant Ashok Sharma on shoulder and appellant Dharmendra Sharma on elbow and knee of informant. He has further said that when deceased Ramashray Sharma, brother of informant, went to rescue the informant, appellants leaving the assault on informant, started assaulting him with lathi saying that they would kill him and appellant Dharmendra Sharma gave a lathi blow on the left eye brow, appellant Ashok Sharma gave a lathi blow on the right side of head and appellant Ramadhar Sharma gave a lathi blow on the finger of right hand of deceased Ramashray Sharma who, after receiving injuries, fell down and, thereafter, he was taken to Makhdumpur Hospital from where he was referred to PMCH where on the next day, he died. Baijnath Sharma (P. W.3) has also said that at the time of occurrence, he was in his dalan and on hearing hulla, he went to the land of informant where he found that appellants were assaulting the informant and when deceased Ramashray Sharma came there, appellants, leaving assault on informant, started assaulting him with lathi and in the meantime, a number of persons assembled and appellants fled away. He has said that deceased Ramashray Sharma, after receiving injuries, fell down and became unconscious and was taken to Makhdumpur Hospital and later on he heard that he died. In para-4 of his evidence, he has said that land dispute between the parties was the reason of the occurrence. Hardeo Sharma (P.W. 4) has said that at the time of occurrence, he was in his dalan and after hearing hulla, he went to the place of occurrence where he found that informant was saying that the land belongs to him and he would tie his bullock there and appellant Ramadhar Sharma was saying that he would not allow him to keep his bullock there. He has further said that appellant Ramadhar Sharma ordered other appellants, who are his sons, to bring lathi and kill the informant and, thereafter, all the three appellants brought lathi and started assaulting the informant and appellant Ramadhar Sharma gave lathi blow on the head and appellant Ashok Sharma gave lathi blow on the shoulder and appellant Dharmendra Sharma gave lathi blow on the knee of informant and when deceased Ramashray Sharma, brother of informant, came to rescue the informant, the appellants, leaving the assault on informant saying that they would kill him, started assaulting Ramashray Sharma. He has further said that appellant Ashok Sharma gave a lathi blow on his head, appellant Dharmendra Sharma gave a lathi blow on his left eye and appellant Ramadhar Sharma gave a lathi blow on the right palm of the deceased who fell down and became unconscious. He has further said that appellant Ashok Sharma gave a lathi blow on his head, appellant Dharmendra Sharma gave a lathi blow on his left eye and appellant Ramadhar Sharma gave a lathi blow on the right palm of the deceased who fell down and became unconscious. Jai Kishore Sharma (P.W.5) has said that at the time of occurrence, he was in his dalan when he saw altercation between informant and appellant Ramadhar Sharma on the point of tying of bullock by informant on a land which was being objected to by the appellants and, thereafter, appellant Ramadhar Sharma ordered other appellants, who are his sons, to bring lathis and, thereafter, all the three appellants brought lathis and started assaulting the informant and when Ramashray Sharma, brother of informant, came to rescue, appellant Ashok Sharma gave a lathi blow on the head, appellant Dharmendra Sharma on the left eye brow and appellant Ramadhar Sharma gave lathi blow on the right palm of Ramashray Sharma who fell down and appellants fled away. He has further said that deceased Ramashray Sharma was taken to Makhdumpur Referral Hospital from where he was referred to PMCH where on the next day, he died. Shyam Kishore Sharma (PW 6) has said that at the time of occurrence, he was in his house and on hearing hulla when he went to the dalan of informant which is situate east of his house, he found that altercation was going on between informant and appellant Ramadhar Sharma and all the appellants were assaulting the informant with lathis and when deceased Ramashray Sharma came there to rescue the informant, appellants assaulted him also with lathi inflicting injuries on his head, left eye brow and palm. He has also stated that deceased was taken to Makhdumpur Referral Hospital from where he was referred to PMCH where he died on the next day. About the cause of occurrence, he has said that occurrence took place on the point of tying of bullocks because informant wanted to tie his bullock on a land but the appellants were not allowing him to do so. All the aforesaid witnesses have also said that informant is dead now. 7. About the cause of occurrence, he has said that occurrence took place on the point of tying of bullocks because informant wanted to tie his bullock on a land but the appellants were not allowing him to do so. All the aforesaid witnesses have also said that informant is dead now. 7. The case of defence, as it appears from the trend of cross-examination of prosecution witnesses, is that in fact informant wanted to grab their land and wanted to tie his bullock on the land of appellants which was protested by them and for this reason, the appellants have been falsely implicated in this case. On behalf of defence, certified copy of an order dated 21-9-1992 of the Court of Sub-divisional Magistrate, Jehanabad passed in Case No. 423M of 1992 has been brought on the record which is marked Exhibit-A which shows that there was a proceeding u/s. 144 of Criminal Procedure Code between informant and appellants Ramadhar Sharma and this proceeding was dropped observing that there was no apprehension of breach of peace. The trial Court has observed that in this order, there is no description of any land. But then at least this shows that there was land dispute between informant and appellant Ramadhar Sharma. Other document brought on record by defence is Exhibit-B which is an order dated 1-7-1960 passed in Case No. 353M/38 of 1959 filed by one Sachdev Singh, Shyam Narain Singh and chaman Singh in a proceeding u/s. 145 of Criminal Procedure Code between S.M. Azharul Haque as first party V/s. Sundrika Singh as second party. This order simply shows that there was a proceeding in respect of plot No. 3255 and by the aforesaid order, first party was found in possession of portions of the plot marked as graveyard and it was also found in possession of parti land lying in between two southern portions of graveyard and second party was found in possession of rest of the aforesaid plot. According to defence along with Sundrika Singh, Chaman Singh, father of appellant Ramadhar Sharma and grandfather of appellants Ashok Sharma and Dharmendra Sharma was also a member of the second party which is apparent from the written statement filed in that case by second party in which it is stated that the written statement was being filed by Sachdev Singh, Shyam Narain Singh and Chaman Singh who were members of second party. The Court below has observed that although this written statement has not been accepted in this case as exhibit but in spite of it after going through this written statement, it appears that there was dispute between the ancestors of appellants and others on the one hand and S. M. Azharul Haque and others on the other hand and the ancestors of appellants and their partners were claiming two and half katha of land whereas the area of place of occurrence is about five to six kathas. The Court below has failed to take note of the fact that by Exhibits-A and B, appellants have shown that they were laying their claim at least on some portion of land of plot No. 3255. According to case of defence, place of occurrence, as given by prosecution, is their land in plot No. 3255 and prosecution witnesses have deliberately concealed the fact that the plot number of place of occurrence is 3255 but their evidence impliedly, if not specifically, proves that plot number of place of occurrence is 3255 and it belongs to appellants. Learned counsel of appellants has drawn our attention towards para-14 of evidence of Jai Kishore Sharma (P.W.5) where he has said that the land on which informant was tying his bullock is situate adjacent east and south to the land of appellant Ramadhar Sharma and has further said that appellant Ramadhar Sharma had subsequently built his dalan and house in this land and previously he used to live in village. He has further argued that in para-15 of his evidence, he has said that there is a graveyard adjacent south to place of occurrence having three graves and remaining land has been acquired and by taking possession of remaining land, appellants have constructed their khaliyan which he is finding there since from his attaining sense. In para-18 of his evidence, this witness has clearly stated that the land of place of occurrence is in the possession of appellants only and not in the possession of anybody else. It has been argued that this evidence clearly supports the case of defence that appellants are in possession of land of place of occurrence. In para-18 of his evidence, this witness has clearly stated that the land of place of occurrence is in the possession of appellants only and not in the possession of anybody else. It has been argued that this evidence clearly supports the case of defence that appellants are in possession of land of place of occurrence. Shyam Sunder Singh (P.W. 11), who is the investigating Officer and who has proved the second Fard-e-bayan of informant Ramadhar Sharma recorded on 20-1-1992 at PMCH (Exhibit-5) has said that place of occurrence is situate adjacent south to a road which itself is situate at the east and north corner adjacent to the house of appellant Ramadhar Sharma and land of place of occurrence was described before him as Gair Mazarua land. He has further stated that during investigation neither informant nor any witness on his behalf produced any document in respect of place of occurrence. Hardeo Sharma (P.W.4), in para-10 of his evidence, has said that in Khaliyan, plot No. 3255 has been recorded as Gair Mazarua (public land) and about twenty persons including Ramadhar Sharma are having Khaliyan and house on this plot and in para-13 of his evidence, this witness has said that there is a house in Khaliyan of plot No. 3255 but he cannot say the area of this plot in possession of appellants. 8. The learned Counsel of appellants has argued that Investigating Officer Shyam Sunder Singh (P.W. 11), in his evidence, has said that Suryadeo Singh (P.W. 2), Baijnath Singh (P.W.3), Hardeo Sharma (P. W.4), Jai Kishore Sharma (P.W.5) had not stated before him that appellant Ashok Sharma gave lathi blow on the right side of head, appellant Dharmendra gave lathi blow on the left eye brow and appellant Ramadhar gave lathi blow on the left palm of deceased and in para 20 of his evidence, he had first said that Shyam Kishore Sharma (P.W. 6) had also not stated like above but then he changed his statement by voluntarily saying that this witness had given the description of assault in the above manner. According to learned Counsel of appellants, in view of this contradiction in the evidence of prosecution witnesses and their earlier statements, case of prosecution does not stand proved. No doubt, Investigating Officer has stated that P.Ws. According to learned Counsel of appellants, in view of this contradiction in the evidence of prosecution witnesses and their earlier statements, case of prosecution does not stand proved. No doubt, Investigating Officer has stated that P.Ws. 2, 3, 4 and 5 had not stated before him that particular appellant inflicted particular injury to deceased as they have deposed in their evidence but so far evidence of witnesses that they saw appellants assaulting deceased with lathis, there is no contradiction in their evidence and they all have stood the test of cross-examination and nothing has been elicited from them to discredit their testimony. Admittedly, the occurrence is said to have taken place on the land which is claimed by appellants. It is the own case of prosecution that when informant went to tie his bullock on the land of place of occurrence, appellants objected and, thereafter, they started assaulting the informant with lathi and when deceased went to rescue him, they left assaulting the informant and assaulted the deceased with lathis. It is also the case of prosecution that when first appellant Ramadhar Sharma raised objection on tying the bullocks at the place of occurrence, he was not armed with any weapon and after some altercation, appellants brought lathis from their house. The Court below has also observed that till the arrival of deceased Ramashray Sharma, the common intention of appellants was to cause grievous injuries to Ramadhar Sharma. It does not come to reason that when appellants had no common intention to commit murder of informant how they suddenly developed it when deceased Ramashray Sharma came to rescue the informant. The common intention can be developed at the spot itself but here this case does not suggest this possibility because appellants were not knowing that when informant would be assaulted by them, his brother Ramashray Sharma would come to his rescue. As per the own case of prosecution when they were assaulting the informant with lathi, deceased Ramashray Sharma came there to rescue informant and they immediately, leaving the informant, assaulted him with lathi. So, we find that the assault on deceased took place on the spur of moment and there was no premeditation or any intention of appellants to commit his murder. So, we find that the assault on deceased took place on the spur of moment and there was no premeditation or any intention of appellants to commit his murder. But since all the three appellants assaulted the deceased with lathi resulting into grievous injuries out of which one proved fatal and on the next day of the occurrence, deceased died of this fatal injury, it can well be said that they all were having knowledge that their act may result death of deceased although they had no intention to kill him or to cause such bodily injury which was likely to cause death. We, therefore, find that case of the appellants comes under the purview of Part-II of sec. 304 of I. P. C. 9. In the result, conviction of all the appellants is altered from Section 302/34 of I. P. C. to Part II of sec. 304 of I. P. C. and their sentence is reduced from life imprisonment to rigorous imprisonment for five years to each of them. Only with this modification in sentence, this appeal is dismissed. Since, appellants Dharmendra Sharma and Ramadhar Sharma are on bail, their bail bonds are cancelled and they are directed to surrender before the Court below to serve the sentence passed against them.