JUDGMENT 1. - For an occurrence, which took place on September 14, 2000, in which one Madan succumbed to injuries as a result of the assault during the occurrence, seven accused persons, the appellants herein, were put to trial before leaned Additional Sessions Judge (Fast Track) Laxmangarh, who vide judgment dated June 10, 2003 convicted and sentenced them as under:- Ramkishan and Kishan Lal @ Kishanli U/s 302 IPC: Both, to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer three months rigorous imprisonment. Ramphal, Bhagwan Sahai, Ramavtar, Hari, Raghunath U/s 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 500/- in default to further suffer three months rigorous imprisonment. Ramkishan, Kishan Lal @ Kishanli, Ramphal, Bhagwan Sahai, Ramavtar, Hari, Raghunath: U/s. 148 IPC: Each to suffer rigorous imprisonment for one year and fine Rs. 200/- in default to further suffer 15 days rigorous imprisonment. U/s.325/149 IPC Each to suffer rigorous imprisonment for two years and fine Rs. 200/- in default to further suffer rigorous imprisonment one month. U/s.323/149 IPC: Each to suffer rigorous imprisonment for six months and fine of Rs. 100/- in default to further suffer 15 days rigorous imprisonment. Substantive sentences were directed to run concurrently. 2. The prosecution story is woven like this: On September 14,2000 informant Gopal Lal (PW.1) submitted a written report (Ex.P1) at Police Station Khedli to the effect that on the said day around 3 PM when Bhupendra son of Madan, aged five years, entered into the field of accused Ramkishan for eating Kacharia, Indra daughter of Ram Kishan slapped him. Thereupon Mahendra asked explanation from Indra as to why she beat Bhupendra. Around 5 PM accused Ramphal, Prabhati, Ramkishan, Kishanlal @ Kishanli, Raghunath, Bhagwan Sahai, Hariram, Kamlesh and Tulsiram armed with lathis and pharsis came over there and started beating Mahendra and Madan Lal. When Gopal, Mahendra, his mother, Dhanwanti and Vimla tried to save they were also beaten up. Lakhan was also beaten up by them. Madan Lal and Mahendra sustained grievous injuries, they were removed to hospital, where Madan Lal succumbed to his injuries. On that report a case under Sections 147,148,149,302 and 323 Indian Penal Code was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Laxmangarh. On that report a case under Sections 147,148,149,302 and 323 Indian Penal Code was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Laxmangarh. Charges under Sections 148,302,302/149,323 and 325 Indian Penal Code were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 24 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove: 3. We have given our anxious consideration to the rival submissions and with the assistance of the learned counsel we have gone through the evidence on record. 4. Death of deceased Madan was indisputably homicidal in nature. As per post-mortem report (Ex.P25) he received following ante mortem injuries:- 1. Incised wound right side on parietal region longitudinal 6cm x 1cm in bone deep with sharp margin and cutting region. 2. Hematoma present on left side 15 x 10cm parietal region. According to Dr.Daya Ram Naroliya (PW20) the cause of death was shock due to excessive hemorrhage from head injury. 5. We may at the outset state and refer to the necessary and bare facts and the relevant evidence. Gopal (PW1) in his cross examination stated that while he reached at the spot he found Madan lying. According to him he reached to the hospital at 10 PM but prior to it he got the report dictated in the market by some person. Madan died in the hospital and he remained with the dead body throughout the night. The police reached at the hospital next day at 6 AM. Mahendra (PW2) deposed that around 5 PM Ramphal, Ramkishan, Kishanli, Raghunath, Bhagwan Sahai, Ramavtar, Hari and Kamlesh came to their Patod and Kishanli gave blow with Pharsi on the head of Madan, whereas Ramkishan inflicted another blow on the-head with lathi. Other accused also given beating to him. Dhanwanti, Ramkoo, Vimla Devi and Lakhan. He admitted in his cross examination that the complainant party and the accused belonged to one family and the accused persons/after the incident had also gone to the hospital. Other accused also given beating to him. Dhanwanti, Ramkoo, Vimla Devi and Lakhan. He admitted in his cross examination that the complainant party and the accused belonged to one family and the accused persons/after the incident had also gone to the hospital. Lakhan (PW3) admitted in the cross examination that before he reached at the spot beating had already been given to Madan. According to him police had also arrived in the hospital during the night but his statement was recorded in the morning. Rankoo (PW4), an old lady, admitted that her eye sight was weak. Bimla (P W5), wife of Mahendra, and Dhanwanti (P W6), wife of Madan, corroborated the testimony of Mahendra. In the cross examination she however stated that when she came out of the house she found Madan lying out side the Patod, whereas blood was oozing from the head of Mahendra. Pappu (PW7) stated that he reached at the hospital in the evening around 7 PM. At that time police had arrived in the hospital. Gopal (PW8) and Prabhu (PW11) in their cross examination stated that when they reached at the hospital they found accused persons there. Police got the accused persons arrested from the hospital. 6. Factual situation emerges for the evidence may be summarised thus: (i) As per site plan (Ex.P3) the incident occurred at place 'A' which is in front of the house of accused Ram Kishan. (ii) The accused party and the complainant party were the members of one family and there was no bad blood between them. (iii) Informant Gopal (PW1) reached at the hospital at 10 PM and prior to reaching to the hospital he got the report written in the market by some unknown person. According to Gopal police did not reach at the hospital during night but arrived at the next day at 6 AM. But Nihal Singh, SHO (PW24) deposed that Gopal came to the hospital and submitted written report (Ex.P1) to him. A look at the report (Ex.P1) goes to show that it was handed over by Gopal (PW1) at 8 PM. (iv) The accused persons while present in the hospital, got arrested by the police. 7. Coming to the testimony of Dr.Dayal Ram Naroliya (PW20), who conducted autopsy on the dead body, we notice that according to him the deceased had died of shock due to excessive hemorrhage from head injury. (iv) The accused persons while present in the hospital, got arrested by the police. 7. Coming to the testimony of Dr.Dayal Ram Naroliya (PW20), who conducted autopsy on the dead body, we notice that according to him the deceased had died of shock due to excessive hemorrhage from head injury. Doctor seems to have opined as to the cumulative effect of two injuries sustained by the deceased. He did not say separately the nature and effect of each injury caused by the individual accused viz. Ramkishan and Kishanli. The doctor did not say that the injury caused by the accused on the head of the deceased by itself was fatal or sufficient in the ordinary course of nature to cause his death. 8. In a similar situation their Lordships of the Supreme Court in Kaliappan v. State of Tamil Nadu, AIR 1977 SC 699 , where accused Kaliappan participating in the attack on the deceased gave a blow with aruval on the head causing incised wound and there were also four other injuries caused on the scalp by lathi blows for which Kaliappan was not responsible. The medical opinion about the five injuries was that "they could have been fatal independently but not necessarily", held that it was possible that injury by aruval alone did not cause the death of the deceased though it was likely to cause such death. On this state of evidence, Kaliappan could not be convicted under Section 302. Offence which Kaliappan appeared to have committed was one under Section 304 Part I IPC. 9. In the circumstances already noticed by us, we find that origin and genesis of the occurrence has been withheld by the prosecution. A doubt creeps in our mind about the institution of FIR. The informant Gopal did not say that he ever had gone to the police station. According to him he reached the hospital at 10 PM alongwith the drafted report and remained in the hospital throughout the night near the dead body of Madan but police did not arrive in the hospital during the night. The police as per the testimony of Gopal, reached at the hospital next day around 6 AM. But strangely the case on the basis of the written report (Ex.P 1) appeared to have been registered by Nihal Singh SHO (PW24) at 8 PM on the date of incident itself i.e. on September 14, 2000. The police as per the testimony of Gopal, reached at the hospital next day around 6 AM. But strangely the case on the basis of the written report (Ex.P 1) appeared to have been registered by Nihal Singh SHO (PW24) at 8 PM on the date of incident itself i.e. on September 14, 2000. Besides this, two prosecution witnesses viz. Gopal (PW8) and Prabhu (PW11) found the accused in the hospital from where they got arrested by the police. The prosecution could not explain as to why the accused had gone to the hospital. The incident according to site plan although occurred in front of the house of accused Ram Kishan, but the prosecution witnesses deposed that all the seven accused together came to the house of the deceased and belabored him. In view of these material infirmities in the prosecution case, we find that the prosecution evidence consistently establish the participation of accused Ram Kishan and Kishanli only in the incident. Possibility of over implication of other five accused can not be ruled out in the facts and circumstances of the case. In our considered opinion sections 148 and 149 Indian Penal Code are not attracted in the instant case. Since existence of unlawful assembly is not proved, the conviction "with the aid of Section 149 Indian Penal Code can not be recorded or sustained. 10. From the above analysis of injuries and deposition of Dr.Dayal Ram Naroliya (PW10) the accused Ram Kishan and Kishanli are found guilty under Section 304 Part I Indian Penal Code since they appear to have intentionally caused such bodily injury as is likely to cause death and the injuries resulted in death of Madan. 11. As a result of above discussion, we dispose of the instant appeal in the following terms:- (i) We partly allow the appeal of appellants Ram Kishan and Kishan Lal @ Kishanli and instead of Section 302 we convict them under Section 304 Part I Indian Penal Code and sentence each of them to suffer rigorous imprisonment for ten years and fine of Rs. 1000/- in default to further suffer six months' rigorous imprisonment. These appellants are however acquitted of the charges under Section 148,325/149 and 323/149 IPC. (ii) We allow the appeal of appellants Ramphal, Bhagwan Sahai, Ramavtar, Hari and Raghunath and acquit them of the charges under Sections 302/149,148,325/149 and 323/149 IPC. 1000/- in default to further suffer six months' rigorous imprisonment. These appellants are however acquitted of the charges under Section 148,325/149 and 323/149 IPC. (ii) We allow the appeal of appellants Ramphal, Bhagwan Sahai, Ramavtar, Hari and Raghunath and acquit them of the charges under Sections 302/149,148,325/149 and 323/149 IPC. These appellants are on bail they need not surrender and their bail bonds stand discharged. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. Order Accordingly. *******