Judgement GUMAN SINGH, J. :- In these appeals, appellants have challenged the judgment and order dated 31-1-2006 of the learned Additional Sessions Judge (Fast-Track), No. 3 Ajmer, Camp-Krishnagarh, in Sessions Case No. 27/2005, whereby appellant-Ram Lal (in Appeal No. 201/06) and appellant-Nanda Ram (in Appeal No. 133/06) were convicted and sentenced as under :- u/S. 365, I.P.C. : Three years rigorous imprisonment and fine of Rs. 500/- each. In default to further suffer one month's simple imprisonment; u/Ss. 302/34, I.P.C. Rigorous imprisonment for life and a fine of Rs. 1000/- each. In default to further undergo two month's simple imprisonment; All the sentences were ordered to run concurrently. 2. Briefly stated the prosecution story is that informant Dhanna Ram (P.W. 7) r/o Sursara made a written report on January 9, 2005 at Police Station Roopangarh, wherein it was stated that on previous day at about 8 p.m., Ram Lal r/o Harmada came to his village and asked his brother Kishna Ram to accompany him to his village on motor-bike for treatment of his ailing goat by way of 'Jhada' (rural belief of treatment by way of utterances). After about one and half hour, the informant came to know that Kishna Ram had been put to death and was left lying at a distance of 3 kms. enroute to village Bhojiyawas, by Ram Lal and his companions. Ram Lal harboured a grudge against Kishna Ram on account of his role with regard to the dispute pertaining to 'Nata' (a type of second marriage as per customs), with his wife and had taken Kishna Ram on a pretext so as to put him to death. Informant was told by one Rameshwar Mali that his brother was lying unconscious in the jungle, so Kishna Ram had to be shifted to Ajmer as his condition was serious. 3. On receipt of the above report, a case under Ss. 365/307, 323, I.P.C. was registered and the investigation commenced. Kishna Ram succumbed to the injuries on January 9, 2005 at 9.45 p.m. and autopsy on the deadbody was performed on January 10, 2005 at 1 p.m. at J.L.N. Hospital; Ajmer. During the investigation, offence under S. 302, I.P.C. was added, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation, charge-sheet was filed. During the investigation, offence under S. 302, I.P.C. was added, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation, charge-sheet was filed. In due course, the case came up for trial before the Additional Sessions Judge (Fast Track) No. 3, Ajmer. Charges under Ss. 365, 302 or 302/34, 323/34, I.P.C. were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of the case, examined as many as 23 witnesses. In explanation under S. 313, Cr. P. C., the appellants claimed innocence and stated that the deceased Kishna Ram had voluntarily accompanied them. In defence, D.W. 1 Kishan Lal resident of Harmara was examined. 4. We have heard learned counsel for the appellants, learned Public Prosecutor for the State and with their assistance scanned the material on record. 5. Injured Kishna Ram succumbed to the injuries and died on January 9, 2005 at 9.45 p.m. Dr. R. K. Mathur (P.W. 18) conducted post-mortem on the dead body of Kishna Ram, and vide post-mortem report (Ex. P.21) the following ante-mortem injuries were found on the dead body :- "(1) Stitched wound on (L) ear pinna 3 cm. (2) Abrasion (L) cheek 4 x 1 cm. (3) Contusion on (L) side of chest 4 x 1 cm.; (4) Lacerated wound on the rt. hand dorsally 4 x 1 cm. skin deep. (5) Abrasion on rt. knee 2 x 2 cm. (6) Abrasion on rt knee 3 x 1 cm." On examination of cranium and spinal cord it was found that there was haematoma on the (L) fronto parietal area with clotted blood underneath scalp :- //(L) zygomatic press and // (L) parietal bone linear joint. SDH over both the cerebral hemisphere substituted haemorrhage. The underlying brain was oedematous and congested and there was fracture of rt. ribs 1, 2, 3, 4. In the opinion of Medical Jurist, the cause of death was coma, as a result of antemortem head injury, caused by blunt object, which was sufficient to cause death in ordinary course of nature. 6. Initially the deceased Kishana Ram was examined on January 8, 2005 at 9.45 p.m. at Yagya Narain Hospital, Kishagarh by Dr. Man Mohan Sharma (P.W. 17). Vide Ex. P.20, following injuries were found on the body of injured Kishna Ram :- (1) Cephal haematoma with left black eye 4 x 8 cm. 6. Initially the deceased Kishana Ram was examined on January 8, 2005 at 9.45 p.m. at Yagya Narain Hospital, Kishagarh by Dr. Man Mohan Sharma (P.W. 17). Vide Ex. P.20, following injuries were found on the body of injured Kishna Ram :- (1) Cephal haematoma with left black eye 4 x 8 cm. on left fronto parietal area; (2) Swelling over rt. chest in axillary line lower part with feeling of criptation. (3) Laceration 3 cm. x 1 cm. skin deep on outer side of right hand. (4) Abrasion 1 cm. x 1 cm. on rt. knee. (5) Abrasion ½ x ½ cm. on It. front knee. (6) Laceration ½ x ½ cm. rt. mastoid area. (7) Laceration 2 x ½ cm. skin deep on left zygomatic area. 7. On appraisal of evidence adduced by prosecution, it is revealed that F.I.R. (Ex. P. 12) was lodged by Dhanna Lal (P.W. 7), who is brother of deceased Kishna Ram. He has deposed that on the day of the occurrence at about 8 p.m. in the evening appellant-Ram Lal had come to take deceased Kishna on motor-bike to his village for treatment of his goat by way of 'Jhada.' Kishna Ram deceased told him that he could not go as he was not well. Then this witness proceeded for market and the deceased Kishna Ram was taken by appellant-Ram Lal. This part of the story is further corroborated by (P.W. 8) Ram Ratan and (P.W. 21) Deen Dayal, who are sons of the informant Dhanna Lal (P.W. 7) and their presence was natural at their residence and their names also find mention in the F.I.R. (Ex. P. 12). The fact that the appellant-Ram Lal and Nand Ram came to take the deceased Kishna Ram on motor-bike and that he was taken along is not disputed as the two appellants have also accepted this fact in their statements recorded under S. 313, Cr. P.C., though they have not disclosed as to what happened next. 8. Dhanna Lal (P.W. 7) has further deposed that half an hour after they had left, he was informed by one Rameshwar Mali that Kishna Ram was lying en-route to Bhojiyawas and many persons had already reached and he was required to be lifted. Then, he along with his sons and other persons went to the place of occurrence by jeep and took him to Govt. Then, he along with his sons and other persons went to the place of occurrence by jeep and took him to Govt. Hospital, Kishangarh from where, he had to be shifted to Ajmer in view of the serious injuries on his body. Thereafter, the matter was reported to Police Station, Roopangarh, vide report Ex. P. 12. This part of the version is also corroborated by the statements of Ram Ratan (P.W. 8) and Deen Dayal (P.W. 21). 9. At this juncture, it may be noted that the prosecution had come with a case that P.W. 1 Bhola Ram r/o Chhotiya Ki Dhani was an eye-witness to the occurrence, who had seen the two appellants beating the deceased and that he informed about the incident to his brother Bhag Chand (P.W. 4), who went to the spot and rang up to Sharwan Lal (P.W. 2) and then Sharwan Lal and other persons from the village also reached at the place of occurrence. But Bhola Ram (P.W. 1) has been declared hostile as he instead of supporting the prosecution case, deposed that Kishna Ram deceased had sustained injuries due to fall from motor-bike. Likewise, Bhag Chand (P.W. 4), Sharwan Lal (P.W. 2) and other witnesses, who reached to the place of occurrence after the incident, have also been declared hostile as they deposed that the accident was the cause of injuries to the deceased. 10. While analysing the actual cause of the injuries sustained by the deceased Kishna Ram, it may be noticed that Kishnal Lal (D.W. 1), younger brother of appellant-Ram Lal produced in defence, has deposed that when he was taking deceased Kishna Ram back to his village, his motor-bike fell down, causing injuries to himself as well as to the deceased. Learned trial Judge has examined this aspect of the matter and considered that it could not be probable that the deceased who went with the appellants, could return within half an hour after treating the goat of the appellant-Ram Lal. In fact it has not been disclosed by the appellants as to what happened after the deceased had voluntarily accompanied them, as explained by them in their statements recorded under S. 313, Cr. In fact it has not been disclosed by the appellants as to what happened after the deceased had voluntarily accompanied them, as explained by them in their statements recorded under S. 313, Cr. P.C. It may be further noted that no injury as claimed is found on the body of Kishan Lal (D.W. 1) and it is not clear as to how the deceased sustained extensive, serious injuries on his body simply due to fall so as to probablise the defence of accident. The subsequent conduct of the appellant was also not such which could indicate that it was a case of accident as they had taken no steps to rescue injured Bal Kishan for any medical aid or to inform his family, or even to report the matter to police. It was also strange as to why Bal Kishan was left lying seriously wounded if it was a case of accident, though he was distantly related to appellant-Ram Lal. This lends credence to the observation of the learned trial Judge that taking the deceased Bal Kishan for treating the goat by way of 'Jhada' was a pretext and in fact appellant-Ram Lal was harbouring a grudge as against the deceased for his role in 'Nata' with his (appellant-Ram Lai's) wife as deposed by Dhanna Lal (P.W. 7), Ram Ratan (P.W. 8) and Deen Dayal (P.W. 21); and thus appellant-Ram Lal had motive to commit the crime. In this regard, it may be noticed that though Dr. Man Mohan Sharma (P.W. 17) has agreed to the suggestion that the injuries found vide Ex. P.20 on the body of the deceased could be caused by fall from running motor-bike but this statement is based purely on probability and that has to be viewed in the light of the facts of the case. In the facts and circumstances of the case, the conclusion drawn by the learned trial Judge cannot be said to be unreasonable that it could not be a case of accident as the motor-bike recovered vide Ex. P.5 was not found to have dented or damaged. Learned trial Judge has also noted that the shoes with the type of sole belongs to the appellant-Ram Lal, recovered vide Ex. P.5 at his instance, could be used in causing the injuries but such probability is too remote to take a place of legal evidence. P.5 was not found to have dented or damaged. Learned trial Judge has also noted that the shoes with the type of sole belongs to the appellant-Ram Lal, recovered vide Ex. P.5 at his instance, could be used in causing the injuries but such probability is too remote to take a place of legal evidence. However, the fact remains that Ram Lal appellant harboured a grudge against the deceased Kishna Ram; he took him on motor bike and the deceased was left lying seriously wounded just after half an hour; it was not explained as to what happened after the deceased accompanied on motor-bike and as to how,he sustained extensive fatal injuries which could be in the knowledge of the appellant alone; are such of the circumstances which are consistent with the guilt of the appellant-Ram Lal and inconsistent with his innocence. 11. In the above back drop, it is further revealed that the deceased Kishna Ram succumbed to the injuries on next day of the incident and looking to the nature of injuries, intention to commit murder cannot be attributed but it can be presumed that appellant had the knowledge that the injuries inflicted were likely to cause death of the deceased. Therefore, the appellant-Ram Lal can be found guilty for the offence of culpable homicide not amounting to murder punishable under Part II of S. 304, I.P.C. Likewise, from the evidence adduced, no offence under Ss. 365 and 323/34, I.P.C. as against appellant-Ram Lal and offence under Ss. 302/34, 365 and 323, I.P.C. as against appellant-Nanda Ram is found proved beyond doubt. 12. For these reasons, we dispose of the instant appeals in the following terms :- (i) We allow the appeal of Nandaram and acquit him of the charges under Ss. 365, 302/34 and 323, I.P.C. Appellant-Nandaram is on bail, he need not surrender and his bail bonds stand discharged. (ii) We partly allow the appeal of appellant-Ramlal and instead of Ss. 302/34 we convict him under S. 304, Part II, I.P.C. and sentence him to suffer rigorous imprisonment for five years. We however acquit him of the charges under Ss. 365 and 323/34, I.P.C. (iii) The impugned judgment of learned trial Court stands modified as indicated above. Order accordingly.