JUDGMENT Mehtab S.Gill, J.:- This is an appeal against the judgment/order dated 13.9.1997 of the Sessions Judge, Rohtak whereby he convicted Daryao Singh son of Jug Lal, Ram Phal son of Daryao Singh and Hawa Singh son of Daryao Singh under Sections 302/34 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs.500/- each and in default, to further undergo RI for one year. They were also convicted under Sections 325/34 I.P.C. and sentenced to undergo RI for three years and to pay a fine of Rs.200/- each and in default, to further undergo RI for six months. They were further convicted under Sections 323/34 I.P.C. and sentenced to undergo RI for six months and to pay a fine of Rs.100/- each and in default to further undergo RI for 15 days. 2. Learned counsel for the appellants has stated that during the course of trial, Amar Singh son of Daryao Singh who was also arrayed as an accused, died. Daryao Singh son of Jug Lal died during the pendency of this appeal. Thus, the prosecution case against both of them stands abated. We are now left with appellant Ram Phal son of Daryao Singh and Hawa Singh of Daryao Singh. The case of the prosecution is unfolded by the statement of Ram Singh Ex.PH given to HC Satbir Singh on 11.6.1994 at Community Health Centre, Jhajjar. 3. Ram Singh stated that on 11.6.1994 at 11 a.m., he was cleaning the dirty water in front of his house. When he reached in front of the house of Daryao Singh who is his cousin brother, Daryao Singh objected to it. Daryao Singh stated as to why he was putting garbage in front of his house. On saying this, he gave a Lathi blow on the head and neck of Ram Singh. In the meanwhile, Daryao Singh’s brother Amar Singh armed with a Lathi and Hawa Singh also reached there. Amar Singh gave a Lathi blow on the back of Ram Singh and another one on his left knee. On hearing the noise, Bansi Lal son of Ram Singh also reached there. Hira Lal son of Ram Singh and Ram Singh’s brother Sher Singh also reached there. Ram Phal son of Daryao Singh gave a Lathi blow on the head of Bansi Lal as a result of which he fell down and became unconscious. On hearing the noise, Bansi Lal son of Ram Singh also reached there. Hira Lal son of Ram Singh and Ram Singh’s brother Sher Singh also reached there. Ram Phal son of Daryao Singh gave a Lathi blow on the head of Bansi Lal as a result of which he fell down and became unconscious. Hira Lal and Sher Singh were also given Lathi blows by Ram Phal and Hawa Singh. The assailants then ran away to their house. All the four injured came to Community Health Centre, Jhajjar, for treatment. Bansi Lal was referred to MCH Hospital, Rohtak, due to serious injuries. F.I.R. Ex.PH/1 was recorded on the basis of this statement. 5. The prosecution to prove its case, brought into the witness-box Dr.Ram Kumar PW-1, Sunil Kumar Bhatnagar PW-2, Dharam Pal PW-3, Ajit Singh PW-4, Dr.Nidhi Aggarwal PW-5, Ram Singh PW-6, Hira Lal PW-7, Sher Singh PW-8, Inspector Jaipal Singh PW-9, Randhir Singh PW-10, Dr.S.K.Sharma PW-11, HC Satbir Singh PW-12, Pyare Lal PW-13, SI Shamsher Singh PW-14 and Dr.C.R.Khatri PW-15. 6. Learned counsel for the appellants has argued that admittedly the occurrence had taken place in front of the house of appellant Daryao Singh (since dead). Both the complainant and the appellant party are next-door neighbours and have a common drain passing from in front of their houses. In fact, Ram Singh (PW-6) is the one who instigated the fight along with his son Hira Lal (PW-7). 7. The occurrence had taken place in a thickly populated area of the village. It all happened at the spur of the moment. Appellants did not have any intention of taking the life of their cousin brother Bansi Lal. The weapons of offence allegedly were Lathis. The dispute was of a trivial nature i.e. of cleaning of the drain and throwing of garbage. There was no intention or pre-meditation on the part of the appellants. 8. Injuries on the person of accused Daryao Singh have gone unexplained by the prosecution, although he had suffered very serious injuries. Bansi Lal died on 30.6.1994 in MCH Hospital, Rohtak. His statement was not recorded for 19 days for the reasons best known to the prosecution. In fact, Bansi Lal was not ready to give any statement against the appellants as he knew that it was his father’s fault. Bansi Lal died on 30.6.1994 in MCH Hospital, Rohtak. His statement was not recorded for 19 days for the reasons best known to the prosecution. In fact, Bansi Lal was not ready to give any statement against the appellants as he knew that it was his father’s fault. It is clear from the statement of SI Shamsher Singh PW-14 and D.D.R. No.12 recorded on 11.6.1994 at 1 p.m. by Daryao Singh, that the complainant party was at fault. 9. At the most, a case under Section 304 Part-II I.P.C. is made out. 10. Learned counsel for the State has argued that statements of the witnesses Ram Singh PW-6, Hira Lal PW-7 and Sher Singh PW-8 cannot be disbelieved as all are stamped and natural witnesses. The occurrence had taken place in front of the house of the complainant. Statement of Bansi Lal was not recorded as F.I.R. Ex.PH/1 was recorded on 11.6.1994 at 5 p.m. Special report reached the C.J.M., Jhajjar on 13.6.1994 at 8.30 a.m. as at that moment of time the Investigating Officer thought that it was not a special report case. Even if there is delay in sending of the special report, it does not have much bearing on the case as appellant Daryao Singh (since dead) has admitted the case of the prosecution. 11. We have heard the learned counsel for the parties and perused the record with their assistance. 12. Both the complainant and the accused party are closely related to each other, as given below :- Udhmi | ........................................................................... | | Jug Lal Mohan Lal | | ....................................... ....................................... Daryao Singh accused (died during the Sher Singh Ram Singh’s pendency of appeal) (PW-8) (PW-6) | | ....................................... ....................................... Hawa Singh Ram Phal Amar Singh accused Bansi Lal Piare Lal Hira Lal accused accused (died during trial) deceased PW-13 PW-7 As per the F.I.R. Ex.PH/1 and the statements of Piare Lal PW-13, Hira Lal PW-7 and Sher Singh PW-8, the occurrence had taken place at 11 a.m., when Ram Singh PW-6 was cleaning the dirty water drain in front of his house. When he reached in front of the house of Daryao Singh his cousin, Daryao Singh objected to it and told him not to put garbage in front of their house. On saying this, he gave a Lathi blow on the head of Ram Singh PW-6. When he reached in front of the house of Daryao Singh his cousin, Daryao Singh objected to it and told him not to put garbage in front of their house. On saying this, he gave a Lathi blow on the head of Ram Singh PW-6. Appellants Ram Phal and Hawa Singh also came out with the Lathis and inflicted injuries on the person of Bansi Lal, Ram Singh PW-6, Hira Lal PW-7 and Sher Singh PW-8. The injury on the head of Bansi Lal which was given by appellant Ram Phal proved fatal. 13. In his statement under Section 313 Cr.P.C. which is reproduced below Daryao Singh has admitted the occurrence :- “I am innocent and I had committed no offence. As a matter of fact, on the day of occurrence, Ram Singh was cleaning the drain in front of my house and was putting rubbish in front of my house to which I protested and requested Ram Singh not to do so. On this Ram Singh abused me and Hira Lal and Bansi Lal armed with Lathis came in support of Ram Singh and attacked upon me and caused injuries in front of my house. In the defence of my person, I and Amar Singh caused injuries to Bansi Lal and accused Ram Phal and Hawa Singh were not present at the time of occurrence. Sher Singh PW was not present at the scene of occurrence. The complainant party in collusion with the police got prepared false medical reports and I have been falsely framed in this case.” The injuries on the person of Daryao Singh who was examined by Dr.Ram Kumar PW-1 are serious in nature, one of the injuries being on the head. Daryao Singh recorded D.D.R. No.12 dated 11.6.1994 at 1 p.m. and he named the complainant party for inflicting the injuries on him. No explanation has come from the side of the prosecution regarding the injuries on the person of Daryao Singh, nor anything has been elaborated regarding D.D.R. No.12. In fact, it is Daryao Singh who informed the police first and it is thereafter that the police came into action. 13. The dispute is of a trivial nature regarding cleaning of the drain. In fact, it is Daryao Singh who informed the police first and it is thereafter that the police came into action. 13. The dispute is of a trivial nature regarding cleaning of the drain. We are of the considered opinion that both the parties clashed with each other at the spur of the moment and in the process Ram Singh PW-6, Hira Lal PW-7, Sher Singh PW-8 and Bansi Lal were injured. The injury on the head of Bansi Lal proved fatal. The statement of Bansi Lal was not recorded till he died on 30.6.1994. His statement under Section 161 Cr.P.C., if recorded, would have been of great help for the decision of the case. The prosecution did not have any explanation as to why his statement was not recorded. The case falls within the ambit of Section 304 Part-II I.P.C. Conviction of appellants Ram Phal is modified and he is convicted under Section 304 Part-II I.P.C. for causing the fatal injury to Bansi Lal and conviction of Hawa Singh is also modified and he is convicted under Section 304 Part-II I.P.C. read with section 34 I.P.C. The sentence of both Ram Phal and Hawa Singh is modified from life imprisonment to 5 years RI. Their conviction under Sections 325,323/34 shall remain intact. Fine shall also remain intact as awarded by the learned trial Court. Except for above modification and alteration in conviction and sentence, appeal is dismissed. ——————————————