JUDGMENT 1. - Challenge in this appeal is to the judgment dated August 6, 2003 of the learned Additional Sessions Judge (Fast Track) No. 4, Jhalawar Camp Aklera whereby the appellants, nine in number, were convicted and sentenced as under : Phool Singh @ Phool Chand, Onkar Lal @ Onkar, Chhagan Singh, Jagannath, Roshan, Kalu Lal, Ram Singh, Dev Lal and Narayan Singh U/s. 302/149 IPC : Each to suffer imprisonment for life and fine of Rs. 1000/-, in default s to further suffer rigorous imprisonment for one year. U/s. 323/149 IPC : Each to suffer rigorous imprisonment for six months. U/s. 148 IPC : Each to suffer rigorous imprisonment for one year. U/s. 341 IPC : Each to suffer simple imprisonment for fifteen days. U/s. 324/149 IPC : (Except Jagannath) Each to suffer rigorous imprisonment for one year. Jagannath : U/s. 324 IPC : To suffer rigorous imprisonment for one year. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on August 22, 2001 at 10 AM, Moinuddin SHO Police Station Bhalta (Pw.17) recorded parcha bayan (Ex.P-8) of Geeta Bai (PW.4) wherein she stated that on the said day around 8.30 AM while she was going to Mal (pasture land), her brother Roshan Singh and Bhagwan Singh were returning from Mal after leaving buffaloes in Mal for grazing suddenly Phool Singh, Onkar Lal, Chhagan Singh, Jagannath, Roshan, Kalu Lal, Madan Singh, Ram Singh, Dev Lai, Narayan, Roshan s/o Ram Singh having lathis, Gandasis and gun came and surrounded Bhawani Singh and Roshan Singh and gave beating to them. When she tried to intervene she received injuries on her head, left hand and leg. Bhagwan Singh was standing at a distance therefore he was not beaten up. She also stated that there was dispute regarding grazing of cattle. On that parcha bayan case under sections 147, 148, 149, 341, 323, 324 and 307 IPC was registered and investigation commenced. During the course of investigation Roshan Singh succumbed to his injuries and section 302 IPC was added. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. Since Madan Lal @ Madan Singh was juvenile at the time of occurrence his case was placed before the Juvenile Board. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. Since Madan Lal @ Madan Singh was juvenile at the time of occurrence his case was placed before the Juvenile Board. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 4, Jhalawar Camp Aklera. Charges under sections 341, 323, 302, 148, 307/149, 324/149, and 302/149 IPC were framed against the appellants, 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 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. A look at Injury Report (Ex.P-22) reveals that following injuries were found on the person of Roshan Singh : 1. Lacerated wound 6" x4"x3" Rt. Leg. 2. Lacerated wound 5" x 4" x 3" Rt. Fore arm. 3. Lacerated wound 1" x 1/2"x 1" on Rt. Ear. 4. Lacerated wound 2"x 1/2" x 1/2" Left leg. 5. Lacerated wound 1"x 1/2"x 1/2" Left scalp. 6. Abrasion on back. 8. Abrasion on neck. In the opinion of Dr. Gauri Shenker (Pw. 18) according to post mortem report (Ex.P-45) the cause of death was hemorrhagic shock as a result of cutting of large vessels of Rt. forearm and Rt. leg. 4. It is contended by learned counsel appearing for the appellants that it is a case of over implication and the first information report is ante dated and ante timed. Although the prosecution alleged that the accused were armed with lakdi, gandasis and guns, but admittedly the gun was not used in the crime. As per injury report of deceased Roshan Singh Ex.P-22, he received in all seven injuries, out of which only one lacerated wound was on scalp. Further the doctor who conducted post mortem could not indicate as to which injury was sufficient to cause death in the ordinary course of nature. As per injury report of deceased Roshan Singh Ex.P-22, he received in all seven injuries, out of which only one lacerated wound was on scalp. Further the doctor who conducted post mortem could not indicate as to which injury was sufficient to cause death in the ordinary course of nature. Reliance was placed on Parsuraman v. State of Tamil Nadu, 1992 Cr.L.J. 3939 , wherein the Apex Court finding that most of the injuries of deceased were external on lower legs and arms observed that the intention of accused was to cause grievous hurt and not murder and altered the conviction from 304 Part I read with 34 to Section 325 read with 34. 5. Per contra, learned Public Prosecutor supported the impugned judgment and took us through the evidence adduced at the trial to show that the charges against the assailants were established beyond reasonable doubt. 6. Coming to the evidence of Geeta Bai (Pw.4) we notice that she in her deposition specifically attributed the injuries only to Phool Singh and Onkar Lal. No specific injury has been attributed to other accused. A perusal of the injury report of Roshan Singh shows that there was only one injury on his head. We thus find that evidence of Geeta Bai does not get corroboration from medical evidence. it also appears that the Investigating Officer inspected that site after two days of the incident and did not bring on record the original report lodged by a passer-by. Moinuddin 10 (Pw.17) in his cross examination admitted as under: HINDI MATTER 495389 7. Having closely scrutinised the testimony of the witnesses examined by the prosecution, we find that only the appellants Phool Singh and Onkar hto Lal have been attributed the injuries and almost all injuries are on the non-vital part of the body of deceased. The fact that the appellants inflicted blow on the non-vital part of the body indicates that they did not intend to cause death of the deceased. We also do not find any material to show that the appellants had acted with premeditation. It appears to us that the act was done in a heat of passion, in a sudden fight and the appellants had not taken any undue advantage. We also do not find any material to show that the appellants had acted with premeditation. It appears to us that the act was done in a heat of passion, in a sudden fight and the appellants had not taken any undue advantage. Since appellants Phool Singh and Onkar Lal did not behave in cruel or unusual manner, it can be presumed that appellants had knowledge that the blow inflicted by them was likely to cause death of deceased even though they had no intention of causing death or such bodily injury as was likely to cause death. Therefore the appellants Phool Singh and Onkar Lal are found guilty of the offence punishable under Part II of Section 304 read with 34 IPC. The evidence of Geeta Bai is not corroborated with the medical evidence and the evidence of the Investigating Officer and that she has not attributed any specific injuries to other appellants Chhagan Singh, Jagannath, Roshan, Kalu Lal, Ram Singh, Dev Lal and Narayan Singh possibility of their over implication cannot be ruled out and they are entitled to benefit of doubt. 8. For these reasons, we dispose of the instant appeal in the following terms : (I) We allow the appeal of appellants Chhagan Sigh, Jagannath, Roshan, Kalu Lal, Ram Singh, Dev Lal and Narayan Singh and acquit them of the charges under sections 302/149, 323/149, 341, 324, 324/149 and 148 IPC. These appellants are on bail, they need nor surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellants Phool Singh @ Phool Chand and Onkar Lal @ Onkar and instead of section 302/149 IPC, we convict each of them under section 304 Part read with section 34 IPC and sentence them to suffer rigorous imprisonment for five years. We however acquit them of the charges under sections 323/149, 341, 148 and 324/149 IPC. The appellant Phool Singh @ Phool Chand has already suffered sentence of more than five years, therefore, we direct that he shall be released from the custody forthwith, if he is not required to be detained in any other case. (iii) The impugned judgment of the learned trial Judge stands modified as indicated above Appeal Disposed of as above. *******