JUDGMENT 1. - All these matters impugn the judgment dated October 30, 2003 rendered by learned Additional Sessions Judge (Fast Track) Hindaun City whereby appellants Shivji, Harkesh and Pradhyuman in appeals No. 1603/2003 and 852/2004 were convicted and sentenced under Section 302/34 Indian Penal Code to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment and respondents Bodh Singh and Babu Lal in appeal No. 1019/2004 and Revision No. 1261/2003, were acquitted. 2. It is the prosecution case that on December 13, 2001 informant Vishram (PW7) submitted a written report (Ex.P6) at Police Station, Todabhim stating therein that on December 9, 2001 his son Babu Lal was persuaded by one Bodh Singh to drop him on Motor Cycle to 'Balaji turn'. Babu Lal was readily agreed and took Bodh Singh and Pradhyuman on Motor Cycle. Afterwards Shivji and Harkesh also reached there. All the four ate food there. In connection with taking motor cycle back, Pradhyuman and Babu picked up small quarrel. Thereafter Babu did not return back. Police Station, Todabhim registered formal FIR and search of missing person initiated. On December 13, 2001 another written report (Ex.P7) was submitted by Vishram that dead body of Babu Lal was lying in a well. On that case under Sections 302, 201 and 34 Indian Penal Code was registered and investigation commenced. Dead body was removed from well and subjected to autopsy, statements of witnesses were recorded, necessary memos were drawn and the accused were arrested. On completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Session Judge (Fast Track) Hindaun City, District Karauli. Charges under Sections 302/34, 201/34 alternatively 302/120B Indian Penal Code were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Section 313 Criminal Procedure Code, the accused claimed innocence. One witness in defence was examined. Learned trial Judge on hearing final submissions rendered the judgment as indicated herein above. 3. The only submission of learned counsel for the appellants is that the appellants could not have been convicted under Section 302/34 Indian Penal Code in view of observation of learned trial Judge. One witness in defence was examined. Learned trial Judge on hearing final submissions rendered the judgment as indicated herein above. 3. The only submission of learned counsel for the appellants is that the appellants could not have been convicted under Section 302/34 Indian Penal Code in view of observation of learned trial Judge. Learned counsel took us through the impugned judgment wherein learned trial Judge observed as under : izdj.k dh reke ifjfLFkfr;ksa ls eSa ekurk gaw fd jkLrs esa okil vkrs le; bu rhu eqykfte ds fcuk fdlh fo'ks"k mn~ns'; ds 'kjkc ds u'ks es NksVh eksVh iqjkuh jaft'k dks ysrs gq, uD'kk ekSdk izn'kZ ih&12 esa crk, x, ^lh* LFkku ij e`rd ckcwyky dh eQyj ls xyk ?kksaV dj gR;k dh gSA According to learned counsel for the appellants the guilt of the appellants does not travel beyond Section 304 Part II, Indian Penal Code. 4. Per contra learned counsel for the complainant and learned Public Prosecutor canvassed that not only the appellants but co-accused Bodh Singh and Babu Lal are guilty under Section 302/34 Indian Penal Code. It is further contended that charges under Sections 302/120B and 201, Indian Penal Code are also established against the accused persons. Accused Bodh Singh himself appeared as DW1 and raised plea of alibi which was neither probable nor proved. 5. We have reflected over the rival submissions. 6. There is no eye-witness of the occurrence and the case of the prosecution is founded on circumstantial evidence. 7. The death of Babu Lal was homicidal. As per post mortem report (Ex.P33) following ante-mortem injuries were found on the dead body : 1. Lacerated wound 6"x2.ox bone deep with fracture of both bone tibia and fibula. 2. Multiple small abrasions 4-5 of the size of 1.5cm x 0.5cm in number on the Rt. cheek. In the opinion of Medical Board the cause of death was asphyxia due to throttling. 8. In order to establish the guilt of the appellants the prosecution examined Shiv Ram (PW3), Batti Ram (PW4) and Prakash Chand Meena (PW5). In his deposition Shiv Ram (PW3) stated that on December 9, 2001 around 9-9.30 PM while he was passing on his tractor through the turn of Sankarwada he saw 4-5 persons quarreling. Two black motor cycles were standing nearby. In his deposition Shiv Ram (PW3) stated that on December 9, 2001 around 9-9.30 PM while he was passing on his tractor through the turn of Sankarwada he saw 4-5 persons quarreling. Two black motor cycles were standing nearby. One Bodya was there who told him that two persons had consumed liquor and one person was given beating by four persons. The witness stayed for a while and then left. After about 3-4 days he heard that Babu Lal was killed. Batti Lal (PW4) and Prakash Chand (PW5) and Prakash Chand (PW5) were also present near the place of incident on that day and they also narrated the same version as stated by Shiv Ram (PW3), Ram Prakash, the Investigating Officer (PW18) in his cross- examination deposed that he recorded the statements of Shiv Ram, Batti Lal and Prakash Chand, respectively, on December 31, 2001. December 31, 2001 and December 25, 2001 and he could not say as to on the basis of which source he reached to the witnesses. Evidently the statements of the witnesses have been recorded by the police after much delay and the said delay have not been explained. We also find that evidence of Ramesh Chand (PW6) to establish extra-judicial confession of appellant Pradhyuman is also not of sterling worth. The prosecution story that the deceased was taken by the accused in a jeep and dead body was thrown into well, was also not believed by the learned trial Court, who took the deceased to the well is a mystery. There is no evidence on record to establish the guilt of appellants under Section 201 Indian Penal Code. Presence of accused Bodh Singh and Babu Lal at the time of incident also could not be established beyond reasonable doubt. 9. Having carefully scanned the evidence adduced at the trial, we find no merit in the submission of learned counsel for the complainant and learned Public Prosecutor and in our opinion co-accused Bodh Singh and Babu Lal were rightly acquitted by the learned trial Judge. 10. So far allegations against appellants Shivji, Harkesh and Pradhyuman are concerned it appears that they and deceased Babu Lal collectively consumed liquor and thereafter ate dinner. While all of them had been controlled by the effect of liquor, altercations ensued and Babu Lal was throttled. The incident occurred all of sudden and without premeditation. 10. So far allegations against appellants Shivji, Harkesh and Pradhyuman are concerned it appears that they and deceased Babu Lal collectively consumed liquor and thereafter ate dinner. While all of them had been controlled by the effect of liquor, altercations ensued and Babu Lal was throttled. The incident occurred all of sudden and without premeditation. In this view of the matter Exception IV to Section 300 Indian Penal Code got attracted and the appellants could not have been convicted under Section 302/34 Indian Penal Code. The learned trial Judge although reached to this conclusion, convicted the appellants under Section 302/34 Indian Penal Code, which is unwarranted. 11. For these reasons, we dispose of the instant matters in the following terms : (i) We partly allow the appeals of appellants Shivji, Harkesh and Pradhyuman and instead of Section 302/34 we convict each of them under Section 304 Part II read with 34 Indian Penal Code. Looking to the fact that the appellants have already undergone the confinement for a period of more than 4 years and 4 months, the ends of justice would be met in sentencing each of them to the period already undergone by them in confinement. The appellants Shivji, Harkesh and Pradhyuman, who are in jail shall be set at liberty forthwith, if not required to be detained in any other case. (ii) We find no merit in the appeal No. 1019/2004 and revision petition No. 1261/2003 and the same stand accordingly dismissed. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. Order accordingly. *******