JUDGMENT S.L. Kochar, J. 1. Both the aforesaid appeals have been filed against the same judgment of conviction and sentence, hence taken up together and dispose of by this common judgment. 2. These appeals have been directed by the appellants against the judgment of conviction and sentence passed by the learned I Addl. Sessions Judge, Shajapur in Sessions Trial No. 227/1995, dated 7-7-1997, thereby convicting the appellants under sections 302/34 and 323/34 of Indian Penal Code and sentencing each of the appellant to suffer R.I. for life and fine of Rs. 2000/- and three months R.I. with fine of Rs. 250/-, in default of payment of fine each of them were directed to undergo R.I. for one month. However, both the substantive sentences were directed to run concurrently. 3. Briefly stated the prosecution case against the appellants is that on 1-8-1995, in the morning at 9.00 a.m. deceased Mehboob, after receiving the information of accident of his father in Guna Town proceeded in a Jeep with complainant Bhuru Khan (PW.6) for Guna. While going to Guna, feeling necessity of money, they stayed on bus-stand at the hotel of Babu Sarpanch and demanded Rs. 5000/- which the deceased was owing from appellant Mehmood Khan S/o Wali Mohammed. On demand, appellant Mehmood started abusing deceased Mehboob, at that time other accused persons were also present with Mehmood. During altercation, it is said that appellant Aalam dealt a sword blow on the head of deceased Mehboob, appellant Mehmood caused knife injury on right hip and right thigh and appellant Mehboob Khan S/o Wali Khan also assaulted deceased by TOMI. Thereafter the acquitted co-accused persons, six in numbers and unknown 20-25 persons were also assaulted deceased jointly by lathi, kicks and fists. When Abdul Hakim (PW.2) intervened in the quarrel, he was also caused injury on his head by the accused persons. The incident was witnessed by Anwar, Abdul Wahid (PW.4), Akram Khan (PW.3). They also tried to save the deceased. F.I.R. was lodged by Bhuru Khan (PW.6) vide Ex.P.16 in P. S. Maksi recorded by S.H.O. Jagdish Chand Tiwari (PW.15). In the F.I.R. it is said that because of serious condition of Mehboob, he was taken to Indore for treatment. Bhuru Khan (PW.6) has also mentioned in the F.I.R. that the accused persons would have also assaulted him but spared him because he belong to their community. 4. In the F.I.R. it is said that because of serious condition of Mehboob, he was taken to Indore for treatment. Bhuru Khan (PW.6) has also mentioned in the F.I.R. that the accused persons would have also assaulted him but spared him because he belong to their community. 4. Deceased Mehboob was immediately taken to the Primary Health Centre, Masksi along with Abdul Hakim (PW.2). They were examined by Dr. Sunil Kumar Soni (PW.1). Ex.P.1 is the MLC report of deceased Mehboob and P.2 is the report of Abdul Hakim (PW.2). Because of serious condition of deceased Mehboob, Dr. Soni immediately referred Mehboob for x-ray and further treatment with reference letter (Ex.P.3) to District Hospital, Ujjain. Jagdish Chandra Tiwari (PW. 15) prepared spot map (Ex.P.4). He also seized blood stained earth, controlled earth, blood stained paijama, one pair pump shoe and one pair chappal from the spot. Including appellants nine persons were arrested. The deceased Mehboob died in Ujjain hospital during treatment on the same day. Death was reported to Kotwali Police, Ujjain, who prepared inquest of the dead body (Ex.P.24) and sent the dead body with medical requisition form (Ex,P.25) for post-mortem. Autopsy was performed by Dr. Sunil Kumar Jamindar (PW.10). His report is Ex.P.22. After required investigation, charge-sheet was filed against nine accused persons before the Court below. 5. All the accused persons abjured their guilt. According to them, they were falsely implicated, therefore, they were put on trial. Prosecution has examined in all fifteen witnesses and got proved 28 documents whereas accused persons did not examine any witness in defence. The learned trial Court, after hearing both the parties, convicted the present appellants for the offences as mentioned hereinabove and acquitted rest of six accused persons, holding that they were simply present on spot prior to the time of incident and did not take any part in the incident. Therefore, they could not be held responsible with the aid of section 149 of Indian Penal Code along with the present appellants (See paragraph 43 of the judgment of the trial Court). 6. We have heard the learned counsel for parties and also perused the entire record. 7. The learned counsel for appellants have put forth the arguments that the prosecution has not placed the true story of the incident and falsely implicated several accused persons. 6. We have heard the learned counsel for parties and also perused the entire record. 7. The learned counsel for appellants have put forth the arguments that the prosecution has not placed the true story of the incident and falsely implicated several accused persons. According to the prosecution case, apart from the nine named accused in the F.I.R., it was also mentioned that 20-25 persons jointly attacked having weapon in their hand for committing murder of deceased Mehboob. Police charge-sheeted nine persons and out of them six have been acquitted. The evidence of eye-witnesses could not be found trustworthy by the trial Court. Therefore, the same set of evidence cannot be relied upon for convicting the present appellants. It is also submitted that F.I.R. was brought into existence in ante date and time and gradually in medical examination, injuries were increased on the person of the deceased. In first examination by Dr. Sunil Kumar Soni (PW.1), only three incised injuries were noted by him on the person of deceased. His report is (Ex.P.1). He referred the patient for further treatment to District Hospital, Ujjain, where Dr. Prahlad Bhargava (PW.14), on his examination, found four injuries on head, out of which one incised wound was on right parietal region, injury No. 2 on occipital region, injury Nos. 3 and 4 on fronto parietal region and according to him, these injuries No. 2 to 4 were caused by hard and blunt object. He further found one incised wound on left hip, one incised wound on right thigh and one contusion on left scapular region. According to him, injury On hip and thigh were caused by sharp edged weapon and contusion by hard and blunt object. His report is Ex.P.27. According to this witness, general condition of the patient was poor, pulse and blood pressure were not recordable and there was excessive bleeding. Patient was under dehydrated and drowsy condition. He treated the patient but he was not knowing when the patient died. On the same day i.e. 1-8-1995 Mehboob S/o Akbar Khan died in Ujjain hospital and post-mortem was performed by Dr. Sunil Kumar Jamindar (PW.10). His report is Ex.P.22. In post-mortem, this Doctor noted only six injuries. Four on the head, one on right hip and another on right thigh. He did not note seventh injury i.e. the contusion on left scapular region. Autopsy surgeon found fracture of right temporal bone. Sunil Kumar Jamindar (PW.10). His report is Ex.P.22. In post-mortem, this Doctor noted only six injuries. Four on the head, one on right hip and another on right thigh. He did not note seventh injury i.e. the contusion on left scapular region. Autopsy surgeon found fracture of right temporal bone. 7A. The learned counsel for appellants has also submitted that the. statements of Akram Khan (PW.3) and Abdul Wahid (PW4) were recorded on 10-8-1998, though their names are mentioned in the F.I.R. and they are the uncle of the deceased but did not go to police station for giving statements and also police did not record their statements immediately. Therefore, because of abnormal conduct, they are not reliable witnesses and the author of the F.I.R. Bhuru Khan (PW.6) has turned hostile. Lastly, it is argued that, even if the complete prosecution case is accepted in to, the offence would fall under Exception 4 of section 300 because the incident has occurred all of a sudden. 7B. Combat with the argument, Government Advocate Shri G. S. Chouhan has supported the judgment and finding arrived at by the trial Court. 8. On visualisation of the evidence on record and documents, we are of the opinion that because of groupism and casteism, the simple and sudden incident of Marpeet was converted into a serious case of involvement of mob of near about 30 persons. In the F.I.R. (Ex.P.16), lodged by Bhuru Khan (PW.6), name of nine persons is mentioned and apart from that it was mentioned that 20-25 unknown persons said to have been present and participated in the incident of Marpeet and they all took part for assaulting deceased and other witness Abdul Hakim (PW.2) by lathis, kicks and fists. But obviously in view of number and nature of injuries found by medical expert on the person of deceased as well as on Abdul Hakim (PW.2), the initial prosecution case was not correct and the same has been exaggerated involving so many persons. The learned trial Court has rightly acquitted the other six accused persons. There is absolutely no evidence on record to show that appellants and deceased were having any kind of previous enmity. The learned trial Court has rightly acquitted the other six accused persons. There is absolutely no evidence on record to show that appellants and deceased were having any kind of previous enmity. On the contrary, the evidence is that deceased advanced loan to appellant Mehmood and after receiving information of accident of his father, while going in a Jeep to Guna he passed through bus-stand and finding the appellant Mehmood present at the hotel of Babu Sarpanch, asked him to pay Rs. 5000/-which he was requiring for treatment of his father. During the course of demand of money, the altercation took place and suddenly deceased was assaulted by the appellants. There is deviation between the medical evidence of Dr. Sunil Kumar Soni (PW. 1) who found only three injury on the person of deceased, Dr. Prahlad Bhargava (PW.14) and autopsy surgeon Dr. Sunil Kumar Jamindar (PW.10), who found seven and six injuries. It appears that in Primary Health Centre, Maksi, deceased was not thoroughly examined by Dr. Sunil Kumar Soni who did not notice three injuries on the head of the deceased and noted only one incised wound from which the blood was oozing and other three injuries were neither incised wounds nor lacerated wounds. Therefore, he missed these three injuries. The deceased was aged about 23 years. Therefore, he must be having thick hair on his head and these other three injuries could be noted only after clean shaving of the head, which is apparent from the medical report (Ex.P.27) of Dr. Prahlad Bhargava (PW.14) who has made the diagram of the head showing all the four injuries and it was diagram of only skull without hair. Out of these six injuries, only one injury was fatal i.e. injury No. 1, incised wound caused by sharp edged weapon and this injury has been described in paragraph four of the deposition of Dr. Sunil Kumar Jamindar, Autopsy Surgeon as grievous in nature and sufficient in ordinary course of nature to cause death. Rest of the injuries were not described as grievous or fatal. Rest five injuries were, therefore, simple in nature. Three injuries on the head were caused by hard and blunt object and according to the eye witnesses account, the same was caused by TOMI (iron rod) by appellant Mehboob Khan S/o Wali Mohammad and injury on left hip and thigh were caused by knife by appellant Mehmood Khan. Rest five injuries were, therefore, simple in nature. Three injuries on the head were caused by hard and blunt object and according to the eye witnesses account, the same was caused by TOMI (iron rod) by appellant Mehboob Khan S/o Wali Mohammad and injury on left hip and thigh were caused by knife by appellant Mehmood Khan. These injuries were simple in nature. 9. The learned counsel for appellants, after arguing the matter, in the last, pressed into service only argument as to the nature of offence. We are of the opinion that looking to the eye witnesses account, the incident occurred all of a sudden without any premeditation and taking undue advantage by the appellants. They did not act in a cruel or unusual manner. There is no evidence that any of the appellant has assaulted the deceased when he fell down on the ground. Actually no witness has said that deceased, after receiving injury ever fell on the ground. There is also no evidence on record that the appellants were knowing that the deceased would come in a Jeep for demanding his money. Therefore, it cannot be said that appellants were present in a public place in front of the hotel with pre-meeting of mind, premeditation and preplan to commit the murder of deceased. Everything had happened all of a sudden when deceased demanded his Rs. 5000/- and appellant Mehmood was not able to pay then and there the said amount. This has ensued verbal altercation and in a heat of passion, the appellants assaulted the deceased. 10. The Supreme Court has considered this aspect in the case of Ghapoo Yadav and Others v. State of M.P., AIR 2003 SC 1620 . In this case, the facts were that there was land dispute between the deceased and the appellants and on request of witness Ramlal, measurement of the land was done by Revenue Authority. In the said measurement, it was found that land belonging to accused Mangal Singh was in the possession of Ramlal (PW.1) and over the said land a berry tree existed. The said berry tree was cut down by family members of Ramlal (PW.1) a day prior to the incident because of which there was altercation between the deceased and accused persons. The said berry tree was cut down by family members of Ramlal (PW.1) a day prior to the incident because of which there was altercation between the deceased and accused persons. Again on the date of incident, there was altercation on account of cutting of tree and this altercation led to scuffle amongst them and accused persons assaulted deceased. In this case, deceased sustained seven injuries on his person out of which only one injury on the head was grievous in nature, which was sufficient in ordinary course of nature to cause death of the deceased. The Supreme Court has held that appellants were having intention to cause injuries but causing of such injuries cannot be termed to fall their act within the purview of offence of murder. The Supreme Court held that the act of the appellants would fall under Exception 4 to section 300, Indian Penal Code. 11. The facts in the present case stand on some better footing than the case of Ghapoo Yadav (supra). In the present case, there was absolutely no altercation, exchange of any abuses or hard words between the deceased and the appellants prior to the date and time of incident. The deceased on account of accident of his father in Guna Town was going to attend him and while going, he passed through the hotel where the accused persons were present and he asked for his Rs. 5000/-which he may require for the purposes of treatment of his father. This has ensued verbal altercation and suddenly the simple event of altercation converted into the incident of beating to deceased in which only one fatal blow was caused on the head by appellant Aalam Khan. Rest of the injuries caused by appellant Mehmood Khan and Mehboob Khan were simple in nature. All these facts are fully fulfilling the ingredient of Exception 4 of section 300, Indian Penal Code i.e. the incident occurred without premeditation, in a sudden fight, without the offenders having taken undue advantage or acted in a cruel or unusual manner, against the deceased. In this case we can profitably refer to judgment of Apex Court in case of Bagdiram v. State of M.P., AIR 2004 SC 387 . 12. In the facts and circumstances of the present case, it emerged that the transaction was only between deceased and co-accused Mehmood Khan s/o Wali Mohammed. In this case we can profitably refer to judgment of Apex Court in case of Bagdiram v. State of M.P., AIR 2004 SC 387 . 12. In the facts and circumstances of the present case, it emerged that the transaction was only between deceased and co-accused Mehmood Khan s/o Wali Mohammed. There was absolutely no bad blood with the appellants and the deceased. Therefore, it would be very difficult to hold that all the appellants were having pre-meeting of mind, premeditation and pre-plan to assault the deceased for intentionally causing injuries. The incident occurred all of a sudden, therefore, in the considered view of this Court, all the appellants cannot be convicted for the commission of offence of culpable homicide not amounting to murder punishable under section 304-1, Indian Penal Code. However, they all will be responsible for their individual act. 13. Therefore, the conviction of all the appellants under section 302/34, Indian Penal Code is hereby set aside. Appellant Aalam Khan is the author of fatal injury. Therefore, appellant Aalam Khan S/o Wali Mohammed is convicted under section 304-1, Indian Penal Code, sentenced to R.I. for 10 years and fine of Rs, 8,000/-, in default of payment of fine, he shall further undergo R. I. for two years. The appellant Aalam is also convicted for causing simple injury to Abdul Hakim (PW.2). There is specific allegation against appellant Aalam Khan for causing simple injury to PW.2 Abdul Hakim. Against him, the allegation is of use of TOMY (iron rod) which can be termed as a lethal weapon and offence would fall under section 324 of Indian Penal Code but since there is no State appeal, therefore, his conviction under section 323/34 is maintained and he is sentenced to R.I. for three months with fine of Rs. 250/-, in default of payment of fine, he shall undergo R.I. for one month. The sentences of appellant Aalam Khan shall run concurrently. The conviction of the appellants Mehmood Khan and Mehboob Khan is altered under section 323 of Indian Penal Code in place of section 323/34 of Indian Penal Code; though offence under section 324 of the Indian Penal Code is made out against them looking to the nature of weapon but there is no State appeal, hence they cannot be convicted under section 324 of Indian Penal Code, which is a graver offence than section 323 of Indian Penal Code. Each of them are sentenced to R.I. for one year and fine of Rs. 1,000/-, in default of payment of fine, R.I. for one month. Out of fine amount, Rs. 9,000/-(rupees nine thousand) be paid as compensation to the legal heirs of the deceased Mehboob. 14. The appeal is allowed in part on the terms indicated hereinabove. 15. Original judgment be retained in Criminal Appeal No. 714/1997 and a copy whereof be placed in the record of connected Criminal Appeal No. 668/1997.