JUDGMENT 1. - This appeal has been preferred by the accused-appellants Purna Ram @ Puranmal and Smt. Sona Devi to challenge the judgment and order passed by the learned Addl. Sessions Judge, Rajgarh (Churu) in Sessions Case No. 26/2004 dated 16th April, 2004 by which both the appellants have been convicted for the offence under Section 302/34 IPC and have been sentenced to undergo life imprisonment with fine of Rs. 500/- each and in default of payment of fine to further undergo three month's rigorous imprisonment. By the same judgment, the appellants have been convicted under Section 323/34 IPC and have been sentenced for six month's RI and for the offence under Section 341 IPC have been sentenced for five days RI. 2. As per the prosecution case, near the house of the appellants there is house of Tola Ram and his brother Jagdish. Because of some dispute in regard to drain, the complainants and appellants had no good relation since last 2-3 months. It is alleged that the accused Purnaram obstructed the drain of Jagdish deceased, his neighbour. On 17.2.2004 Jagdish reprimanded accused appellant Purnaram and at that time, Purnaram hit on the head of Jagdish by a Lathi. Purnaram's wife accused appellant Sona Devi also came on the place of occurrence and started beating Jagdish by fist. The complainants Tolaram, Babulal and Bhanwari also reached to the place of occurrence and took Jagdish from out of beating. It is stated by the complainants that if they would not have brought the victim Jagdish out from beatings of the appellants-accused, he would have been given more beatings by the accused. On this written report Ex.P/7 submitted at 2.45 PM at police station on 17.2.2004 itself FIR No. 17/2004 under Sections 304 and 323/34 IPC was registered. During investigation, Jagdish died and, therefore, charge under Section 302 IPC was also added. During investigation, the blood stained soil and the cloths of the victim were seized and seizure memos Ex.P/14 and Ex.P/15 were prepared. The accused-appellants were arrested and on the information Ex.P/24 of the accused-appellant No. 1 the offence of weapon - the lathi was recovered and the recovery memo Ex.P/25 was prepared. The FSL report Ex.P/29 and Post-mortem report Ex.P/2 were obtained and, thereafter, after recording the statement of the witnesses, challan was filed in the court of Addl. The accused-appellants were arrested and on the information Ex.P/24 of the accused-appellant No. 1 the offence of weapon - the lathi was recovered and the recovery memo Ex.P/25 was prepared. The FSL report Ex.P/29 and Post-mortem report Ex.P/2 were obtained and, thereafter, after recording the statement of the witnesses, challan was filed in the court of Addl. Chief Judicial Magistrate, Rajgarh from where the case was committed to the Court of Sessions Judge and the case was transferred to the Addl. Sessions Judge, Rajgarh (Churu) for trial. In the trial court, prosecution produced 11 witnesses and the relevant documentary evidence. 3. The statement of the accused-appellants were recorded under Section 313 Cr.P.C and they denied the allegations and produced defence witnesses DW-1 Santram and DW-2 Kesu Ram. 4. Learned Counsel for the appellants submitted that in fact, the victim Jagdish, his brother Tolaram, Dalip and Smt. Chanda Devi were trying to open the drain towards the house of the appellants. When it was objected by the appellant No. 2-wife of appellant No. 1 then Jagdish (deceased) inflicted a blow from the Lathi on the head of the appellant No. 2 Smt. Sona Devi. Tolaram also had Lathi in his hand from which he tried to hit upon appellant No. 2 Smt. Sona Devi. The blow of Lathi which was thrown towards the appellant No. 1 by Tolaram went wrong and hit the head of Jagdish. The victim Jagdish fell down on stone. This incident was reported by the appellant No. 1 Purnaram to the police but instead of his report and medical evidence, no case was registered by the police on appellants' complaint against the complainants and a false case was registered against the appellants. 5. It is also submitted that assuming for the sake of arguments the prosecution came with the true case then it is clear that Jagdish and his brother Tolaram tried to open a drain towards the house of the appellants and in that, Jagdish called appellant No. 1 Purnaram and as per the prosecution case itself, the verbal altercation started and in that heat of moment, the victim Jagdish suffered injury and that injury is from Lathi. No second injury was inflicted upon the victim Jagdish. No second injury was inflicted upon the victim Jagdish. It may be possible that in the heat of moment, the blow might have been strong enough to give fatal injury, but appellants could not have intended nor could have imagined that the injury will result into death of the victim. 6. The injury might have been inflicted only to teach a lesson to the person who inflicted injury upon the appellant No. 1's wife in the presence of appellant No. 1. In view of the above, the conviction of both the appellants under Section 302/34 IPC cannot be sustained. It is also submitted that unfortunately, the appellant No. 2 also has been convicted under Section 302/34 IPC without noticing that in the situation in which incident occurred there could not have been common intention of appellants to inflict fatal injury upon the victim or there could not have been even common intention for inflicting injury upon Jagdish, who died subsequently. Learned Counsel for the appellants submitted that the entire story is concocted story, which his clear from the fact that in the written report submitted by the complainant Total Ram Ex.P/7, the last four lines have been inserted subsequently for involving one Smt. Kesar Devi W/o Shri Veer Singh and to level charge of Section 341 IPC. The words have been added after-words which is apparent from the Ex.P/7 itself because the entire report, which was originally written ended with the date "17.2.2004" and upto that, the hand writing and ink are different whereas thereafter four lines were added in different hand writing with different pen. As per the facts mentioned in the written report Ex.P/7 the dispute started between the appellant No. 1 and victim and the appellant No. 2 came on the seen of occurrence after the blow was inflicted on the head of the victim. The allegation in the complaint lodged by Tolaram Ex.P/7 against the appellant No. 2 is that she by her hands and fist gave beating to the victim. Therefore, the allegation against the appellant No. 2 is only of committing offence under Section 323 IPC. 7. The allegation in the complaint lodged by Tolaram Ex.P/7 against the appellant No. 2 is that she by her hands and fist gave beating to the victim. Therefore, the allegation against the appellant No. 2 is only of committing offence under Section 323 IPC. 7. Learned Public Prosecutor vehemently submitted that for such a small dispute if the appellants have inflicted such a heavy blow of Lathi on the head of the victim, then certainly they are liable to face the consequences and the trial court after considering the entire evidence reached to the conclusion that both the appellants are guilty as they had common intention to eliminate the victim Jagdish and for that purpose, they detained Jagdish. 8. We considered the submissions of learned Counsel for the appellant as well as learned Public Prosecutor and perused the record. PW-6 Tolaram complainant in his statement in the trial court stated that the dispute was going on between the Jagdish and appellants in regard to opening of drain of the house of victim Jagdish. The appellant No. 1 Purnaram objected for the said drain. He stated that on 17.2.2004 after this verbal altercation Purnaram and Sona Devi-appellants with common intention came from their house and when Jagdish tried to enter in his house, Purnaram's wife Sona Devi came in front of Jagdish and restricted his entry in his house. Purnaram had two Lathis, one in each of his hands and he inflicted blow from Lathi on the head of Jagdish with intention to kill him, upon which, his brother Jagdish fell down on the ground. Thereafter, Sona Devi started beating the victim by his hands. The witness Tolaram's sister-in-law (Bhabhi) and Babulal came in between and pushed Purnaram away otherwise he would have given more beatings. At that time, Kesar Devi was also present there and was shouting "beat - beat" and was clapping. In cross-examination, he could not disclose who had written the written report Ex.P/7. He stated that it is not known who was the person who has written Ex.P/7. He stated that in Ex.P/7 , stopping of Jagdish by Purnaram has been wrongly mentioned and it happened because he was under fear. In cross-examination, he could not disclose who had written the written report Ex.P/7. He stated that it is not known who was the person who has written Ex.P/7. He stated that in Ex.P/7 , stopping of Jagdish by Purnaram has been wrongly mentioned and it happened because he was under fear. He also failed to explain why it has not been written in the Ex.P/7 that Purnaram had Lathi in his both the hands nor he could explain that why he did not mention that Sona Devi and Purnaram both came from their house with clear intention to inflict injury upon Jagdish. He also did not give statement during investigation that Jagdish tried to enter in his house then Sona Devi stopped him. He also could not explain why he did not state in his earlier statement that Sona Devi gave beating to the victim Jagdish when he fell down. The shouting of Kesar Devi that "beat beat' also has not been disclosed by him in his earlier statement. In cross-examination he admitted that Purnaram lodged a case against complainant and further admitted that Purnaram ran in his house after inflicting one injury upon victim Jagdish. 9. Jagdish is uncle of PW-7 Babulal. He also stated that there was dispute between Jagdish and Purnaram in regard to opening of drain. At that time, Jagdish asked Purnaram why he has obstructed his drain then Purnaram came out from his house and again he went in his house then Purnaram and his wife Sona Devi again came out from their house. Purnaram had Lathi in his hand and Sona Devi had no weapon with her. When Jagdish tried to enter in his house, Sona Devi stand up in front of Jagdish and did not allow him to enter in his house. Purnaram inflicted injury by Lathi upon the head of Jagdish who fell down instantly there, thereafter, Sona Devi started beating victim Jagdish by her hands. According to Babulal he intervened to save the victim then Purnaram and his wife Sona Devi both went into their house. In cross- examination, he admitted that his house is 1/4 km away from the house of Jagdish. He gave explanation that he was coming behind Jagdish because he was to take lunch at his uncle (victim Jagdish) house. According to Babulal he intervened to save the victim then Purnaram and his wife Sona Devi both went into their house. In cross- examination, he admitted that his house is 1/4 km away from the house of Jagdish. He gave explanation that he was coming behind Jagdish because he was to take lunch at his uncle (victim Jagdish) house. In cross-examination, he further stated that when his uncle Jagdish found that water of drain has been obstructed by Purnaram then Jagdish objected for it to Purnaram and called Purnaram from his house. Purnaram came out from his house after hearing the call of Jagdish and, thereafter, he again went in his house and came back with Lathi and Sona Devi was with the appellant Purnaram. Sona Devi obstructed Jagdish from going to his house and Purnaram inflicted injury. He stated that after inflicting one blow from Lathi, Purnaram did not ran away nor he inflicted second blow from Lathi. However, he stated that Purnaram had intention to inflict another blow also. He stated that nobody caught Purnaram. Purnaram and Sona De were only pushed away. 10. The above evidence of the prosecution itself reveals the story that in a dispute about the passing of the dirty water from the drain, the victim Jagdish called Purnaram from his house to tell him why he has obstructed the drain of the victim Jagdish, in that situation, the conviction of the appellants under Section 341 IPC cannot be sustained in the totality of the facts of the case as calling of Purnaram from his house by the victim is admitted case and stopping Jagdish from entering his house by the appellant No. 2 Sona Devi is material improvement in the statement of the witnesses produced by the prosecution referred above and it appears that on spur of moment a blow from Lathi was inflicted by Purnaram on the head of victim Jagdish. From the facts it cannot be gathered that there could have been any intention of the even appellant No. 1 Purnaram 2 to inflict any injury, which may cause death of the victim Jagdish. From the facts it cannot be gathered that there could have been any intention of the even appellant No. 1 Purnaram 2 to inflict any injury, which may cause death of the victim Jagdish. When the genesis of the event terminating into death of the victim speaks loudly about the intention of the accused then in the present case, it is highly improbable that the appellants or appellant No. 1 could have formed any common intention and, thereafter, inflicted the injury to eliminate the victim Jagdish. The involvement of appellant No. 2 Smt. Sona Devi by the witnesses cannot be believed in view of the material improvements made by them in their statement given in the court below. From their earlier statement and further the statement involving Sona Devi in inflicting injury upon the victim is nothing but exaggeration made by the complainant, who is brother of the deceased and witness. It may be possible that appellant Sona Devi might have been there, but she cannot be held responsible for taking part in the crime nor any inference can be drawn that there was common intention for committing offence. 11. In view of the fact that at the spur of moment a single blow of Lathi was inflicted by appellant Purnaram on the head of the deceased, the appellant can be presumed to had knowledge that the injury likely to cause death of the victim in ordinary course, but no inference can be drawn that he had intention to kill the victim. 12. In all probability it is a case of giving threat to the victim by the appellant No. 1 Purnaram in which fatal injury was inflicted, therefore, both the appellants' conviction under Section 302/34 IPC cannot be sustained nor there conviction under Section 341 IPC can be sustained. Both are deserves to be acquitted from the offences of said charges. However, the appellant No. 1 Purnaram who inflicted the injury on the head of the deceased is liable to face the consequences of his inflicting injury on the head of the victim and, therefore, he is convicted under Section 304 Part II IPC and he is sentenced to seven years' imprisonment. Appellant No. 2 Sona Devi is acquitted from the charge under Section 302/34 IPC and 341 IPC. She is already on bail, therefore, she need not to surrender and her bail bonds are cancelled. Appellant No. 2 Sona Devi is acquitted from the charge under Section 302/34 IPC and 341 IPC. She is already on bail, therefore, she need not to surrender and her bail bonds are cancelled. The appellant No. 1 Purnaram @ Puranmal is behind the bar. He be released on completion of his sentence of seven years and if not needed in any other case. 13. According, the appeal of the appellant No. 2 Sona Devi is allowed and the appeal of the appellant No. 1 is partly allowed as mentioned above.Appeal partly allowed. *******