JUDGMENT 1. - In this appeal, appellants have challenged the judgment dated February 4, 2005 of the learned Additional Sessions Judge (Fast Track) No. 3, Bundi, in Sessions Case No. 42/2003, whereby appellants Laxmi Narain, Daulatram, Mahaveer s/o Mathura Lal, Roop Ram alias Roop Narain and Kamla Bai have been convicted and sentenced as under: Under Sections 147, 148, 323/149, 302/149 IPC U/s 147, each of the appellants to undergo rigorous imprisonment for one year: U/Section 148, two years rigorous imprisonment and under Section 323/149 rigorous imprisonment for one year. Under Section 302/149 IPC To undergo Life Imprisonment and a fine of Rs. 2,000/- each, in default to further undergo two months simple imprisonment. All the sentences were ordered to run concurrently. 2. Briefly stated, the prosecution case is that on June 21, 2002 at 11 p.m. informant Mahaveer handed over a written report at Government Hospital, Bundi to Shri Amba Lal, A.S.I. P.S. Gandoli, wherein he reported that on the said day at about 4.30 to 5.30 p.m. he had gone with tractor to plough his land; then Laxmi Narain armed with iron pipe, Daulatram with lathi, Rupa Ram with `Gandasi', Mahaveer with `Dhariya' and Rajesh and wife of Laxmi Narain with swords, came there and first sword blow was inflicted on the head of his father Bhawani Shankar, by the wife of Laxmi Narain and then all of them inflicted injuries to him and ran away thinking him to be dead. The assailants had their houses nearby the field. Wife of Roop Narain also inflicted a cut injury on the leg of Bhawani Shanker. Bhawani Shanker was taken to hospital in unconscious state, there he succumbed to the injuries. This incident was also seen by the mother of the informant and Badri Lal, Moti Lal, Sunder Lal and Janki Lal. On the report being sent to the Police Station Gendoli, a case under Sections 147, 148, 149, 447, 302 IPC was registered and investigation commenced. During the investigation, autopsy on the dead body of Bhawani Shanker was conducted, necessary memos were prepared, accused were arrested, recovery of weapon of offence was effected and statements under Section 161 Cr.PC. were recorded. After collecting necessary evidence, chargesheet was filed and in due course, the case came up for trial before the learned Additional Sessions Judge (Fast Track No. 3), Bundi. were recorded. After collecting necessary evidence, chargesheet was filed and in due course, the case came up for trial before the learned Additional Sessions Judge (Fast Track No. 3), Bundi. Charges under Sections 147, 148, 447, 323/149, 302/149 IPC were framed. The accused denied the charge and claimed trial. The prosecution in its support examined as many as 30 witnesses. In the explanation u/Section 313 Cr.PC. the accused claimed innocence. 3. In the explanation under Section 313 Cr.P.C. appellant Laxmi Narain explained that the land in dispute jointly belonged to the parties. On the day of incident Mahaveer was asked by him not to plough the land. Mahaveer tried to strike him with pipe but the same was snatched by him (appellant). Then Mahaveer went to his house alongwith tractor but returned within 10 minutes along his father armed with weapons. Then Bhawani Shankar tried to plough with the tractor and when stopped by him (appellant), he inflicted two 5 injuries to him. When Bhawani Shankar tried to strike for the third time, he caught hold of it which caused him to fall down from the tractor. Then he (appellant) also fell down and became unconscious. Thus, he did not inflict any injury to Bhawani Shankar. Four witnesses in defence were examined. Learned trial Judge on hearing final submissions, convicted and sentenced the accused appellants as indicated here-in-above. 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. Death of Bhawani Shanker was undeniably homicidal in nature. As per post mortem report (Ex.P.27), following ante mortem injuries were found on the body: "(1) Incised wound of 14 cm x three and half x 10 cm on left-fronto parietal region, upper end at mid line, lower end reaches up to upper and lower eye lid, direction above downwards. On dissection, left parietal and frontal bond // and laceration of parietal and frontal lobe 7 cm x 2 cm x 8 cm. Pieces of brain matter comes out through wound hemorrhagic fluid present in brain cavity, haematoma at frontal lobe is present. (2) Incised wound of 7 cm x two and half cm x bone deep left leg lower ⅓ region antero medially, transverse direction from left to right. On dissection tibia bone/fractured. Joints, muscles and vessels cut through the wound. Pieces of brain matter comes out through wound hemorrhagic fluid present in brain cavity, haematoma at frontal lobe is present. (2) Incised wound of 7 cm x two and half cm x bone deep left leg lower ⅓ region antero medially, transverse direction from left to right. On dissection tibia bone/fractured. Joints, muscles and vessels cut through the wound. (3) Incised wound of 1 cm x 1 cm x bone deep right knee. (4) Incised wound of 10 cm x one and half cm x muscle deep rt. Back chest at scapular region. Muscles cut through out with clotted blood. (5) Bruise of 7 cm x 2 cm rt. and left lower back at waist red coloured. (6) Bruise of 5 cm x one and half cm left anterior chest below clavicle red dark. (7) Bruise of 5 cm x 2 cm Rt. Parieto occipital region, little haematoma present in sub.cul.Tissue. In the opinion of (P.W.25) Dr. Manoj Jain, cause of death was due to head injury and hemorrhagic shock that was ante-mortem in nature and sufficient to cause death in ordinary course of nature. 6. Dr. Manoj Jain (P.W.25) examined injured Mahaveer (P.W.2) on 22.6.2002 and vide Injury Report (Ex.P28), the following injury was found on his person : "(1) Bruise of 10 cm x two & half cm left arm upper ⅓ region. Transverse, red colour, little swelling present." 7. Dr. Deepanjali (P.W.14) examined accused Laxmi Narain, on 25.6.2002 and vide Injury Report (Ex.P22) the following injuries were found on the person of accused Laxmi Narayan : "(1) Swelling and pain 4" x 3" on right hand; (2) Swelling and pain 4" x 2" on right shoulder." 8. On delving into the evidence of eye-witnesses, it is revealed that Mahaveer (P.W.2) is the son of deceased Bhawani Shankar. He had gone on tractor to plough the field, Laxmi Narain came and inflicted injury with iron pipe on his left hand wrist and then his father, mother and brothers also reached there. Thereafter the accused Roop Ram, armed with Gandasi, Mahaveer with `dhariya' Rajesh and wives of Laxmi Narain and Roop Ram reached with swords in their hands. First of all, wife of Laxmi Narain inflicted a sword blow on the head of his father then all the accused inflicted injuries to his father while wife of Roop Narain inflicted a cut injury on the leg of his father. First of all, wife of Laxmi Narain inflicted a sword blow on the head of his father then all the accused inflicted injuries to his father while wife of Roop Narain inflicted a cut injury on the leg of his father. When all the accused left the place, his father was shifted to Bundi in unconscious state, where he succumbed to the injuries and then the report was lodged. in his cross-examination, this witness was confronted with his averment in his police statement (Ex.D.1), wherein he had stated that his father was ploughing the land with the tractor and he was dragged from the tractor causing him to fall down and then a `kulhadi' blow was inflicted on his head by Room Ram. (P.W.4) Mukesh is the other son of the deceased, while (PW.8) Kesar Bai is the wife of the deceased, have also corroborated the testimony of Mahaveer (PW.1) but they were also confronted with their earlier version in Police Statement alike Mahaveer (PW.1). P.W.3 Janki Lal is the other eye witness to the occurrence produced by the prosecution. He has deposed that on hearing the noise of the quarrel, he reached to the place of occurrence and saw all the accused persons inflicting injuries to the deceased Bhawani Shankar but in his cross-examination, this witness has admitted that when the accused saw him coming, they ran away. This witness has also deposed that he is the real brother of the deceased as well as father of appellant Laxmi Narain and Roop Ram @ Roop Narain. P.W.11, Badri, P.W.12 Sunder Lal and P.W. 15 Bhanwar Lal have been declared hostile. 9. Learned counsel for the appellants have argued that the eye-witnesses examined by the prosecution are members of the same family and their testimony inspire no confidence as they have given a different version of the incident in their Court deposition than what was stated by them in their statements recorded under Section 161 Cr.P.C. Learned counsel has further argued that apart from appellant Laxmi Narain, presence of other accused persons is not established in the occurrence and they deserve to be given benefit of doubt on the same footing as that of accused Rajesh and Smt. Santra Bai, who have already been acquitted by the learned trial Judge. 10. 10. On marshalling the evidence in view of the aforesaid contention, though it is noticed that the eye-witnesses have been found to have made improvement in their court depositions pertaining the injury inflicted to the deceased on head but the fact remains that they have otherwise consistently deposed that the appellants launched the attack and inflicted injuries indiscriminately to the deceased Bhawani Shankar. Thus, on sifting grain from the chaff and truth from falsehood, we find the substratum of the prosecution case proved. On closely scanning the evidence to ascertain the presence and participation of the appellants, it is revealed that appellant Laxmi Narain himself has come up with an explanation that he tried to stop Bhawani Shankar (deceased) from ploughing the field and he fell down from the tractor on being disengaged and thereby sustained injuries. That apart, the aforesaid defence was introduced right from beginning of the trial in the cross-examination of the statements of eye-witnesses that the incident had taken place in the manner as explained by appellant Laxmi Narain and that except Laxmi Narain and Roop Ram, no other appellant was present in the incident. On further analysis, it may be noticed that in the explanation under Section 313 Cr.P.C. appellant Roop Ram @ Roop Narain had taken a plea that on the date of incident, he was not present at the place of occurrence and had gone in `Mal'/field of Jaithal for work but (D.W.4) Ram Lal, who has been examined in defence, has deposed that Roop Ram was present at his residence as he had invited him with his wife on feast that day and he (Room Ram) remained present there from 4 p.m. to 8 p.m. so he could not be present in the incident. But no such defence of alibi was put forth on behalf of him during the trial while cross-examining the eye-witnesses but on the contrary defence has been introduced to show that it was only appellants Laxmi Narain and Roop Ram, who had come to stop Bhawani Shankar (deceased) from ploughing the field and not the other appellants. 11. But no such defence of alibi was put forth on behalf of him during the trial while cross-examining the eye-witnesses but on the contrary defence has been introduced to show that it was only appellants Laxmi Narain and Roop Ram, who had come to stop Bhawani Shankar (deceased) from ploughing the field and not the other appellants. 11. It is further revealed from the cross-examination of (P.W.2) Mahaveer, that he was suggested by way,of defence that it was appellant Laxmi Narain and Roop Ram, who had come to stop Bhawani Shankar from ploughing the field and Bhawani Shankar tried to over-run them by the tractor and then Bhawani Shankar was tried to be dragged from the tractor, which resulted in injuries sustained by him. Likewise, in the cross-examination of Smt. Keshar Bai (P.W.8), it has been suggested that appellant Roop Ram had come at the place of occurrence just to rescue and not to assault. The suggestion that it was only Roop Ram and Laxmi Narain, who were present in the incident, has also been made in the cross-examination of Mukesh (P.W.4). Thus, we find the presence and participation of appellants Laxmi Narain and Roop Ram in the incident stand established. The eye witness account of participation of the two appellants armed with pipe and kulhari has been further corroborated by medical evidence that the fatal injury of the dimension on head could only be caused by heavy sharp edged weapon like kulhari than by sword. That apart, the recovery of weapon of offence, a blood stained pipe vide (Ex.P.15) on disclosure statement of Laxmi Narain and recovery of a blood stained `kulhari' vide (Ex.P.16) was effected on the basis of disclosure statement of Roop Ram @ Roop Narain further corroborate their inculpability. Both these articles were found to be stained with the same group of human blood which was found on the wearing apparels, `safa' and `dhoti' of the deceased as per F.S.L. Report (Ex.P. 55). However, in the absence of cogent and convincing evidence on the point of participation of appellants Kamla Bai, Daulat Ram, Mahaveer in the crime, their over implication cannot be ruled out. 12. In view of the above analysis, we find that the presence and participation of appellant Laxmi Narain and Roop Ram @ Roop Narain in the crime stand proved beyond doubt. 12. In view of the above analysis, we find that the presence and participation of appellant Laxmi Narain and Roop Ram @ Roop Narain in the crime stand proved beyond doubt. Laxmi Narain was armed with pipe and Roop Ram @ Roop Narain with `kulhari' and they had gone to stop from ploughing the field and in the facts and circumstances, it can be safely inferred that they had acted in concerted manner so as to attract the application of Section 34 of the Indian Penal Code, as they are found to have inflicted injuries in furtherance of common intention. Since the deceased Bhawani Shankar had sustained one fatal injury on head with sharp edged weapon and no other injury was inflicted on head and other non-fatal injuries were not found on vital parts of the body, and thus in the peculiar facts and circumstances of the case it can be presumed that appellants had the knowledge that the blow inflicted on head is likely to cause death of Bhawani Shankar, even though they had no intention to cause death. Since the appellants did not behave in unusual manner, we find them guilty of the offence punishable under Section 304 Part II read with Section 34 IPC. Accordingly charges under Section 302/149, 147, 148 and 323/149 IPC are not found established against them. Likewise, charges under Sections 302/149, 147, 148 and 323/149 IPC are also not found established beyond doubt against appellants Daulat Ram, Mahaveer and Kamla Bai. 13. For these reasons, we dispose of the instant appeal in the following terms : (i) We allow appeals of appellants Daulat Ram, Mahavir and Kamla Bai and acquit them of the charges under sections 147, 148, 323/149 and 302/149 IPC. All these appellants are on bail, they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeal of appellant Laxmi Narayan and Roop Ram @ Roop Narayan and instead of section 302/149 we convict them under section 304 Part II read with 34 IPC and sentence them to suffer rigorous imprisonment for five years. They however stand acquitted of the charges under sections 147, 148 and 323/149 IPC. (ii) We partly allow the appeal of appellant Laxmi Narayan and Roop Ram @ Roop Narayan and instead of section 302/149 we convict them under section 304 Part II read with 34 IPC and sentence them to suffer rigorous imprisonment for five years. They however stand acquitted of the charges under sections 147, 148 and 323/149 IPC. (iii) Appellant Roop Ram @ Roop Narayan has already suffered the sentence for more than five years and he is in jail, therefore, we direct that he shall be set at liberty forthwith, if he is not required to be detained in any other case. (iv) Appellant Laxmi Narayan is on bail, his bail bonds stand cancelled and he shall be taken in custody forthwith. (v) The impugned judgment of learned trial court stands modified as indicated above. Appeal of R and L Partly Allowed and that of others Allowed in Full. *******