Honble SINGH, J.–Ramkaran, Raghuveer, Sultan and Rajendra (appellants herein) were put to trial before the Additional Sessions Judge, Fast Track No. 2, Jhunjhunu who vide judgment dated February 8, 2006 convicted and sentenced each of the appellants as under: u/S. 148 IPC to suffer rigorous imprisonment for two years and fine of Rs. 50/-, in default to further suffer simple imprisonment for seven days. u/S. 365 IPC to suffer rigorous imprisonment for three years and fine of Rs. 50/- in default to further suffer simple imprisonment for seven days. u/S. 302/149 IPC, to suffer imprisonment for life and fine of Rs. 50/-, in default to further suffer simple imprisonment for seven days. All the sentences were ordered to be run concurrently. (2). Briefly stated, the prosecution cased is that the informant Ghasi Ram resident of village Hanutpura lodged a report on August 21, 2004 at about 4.15 A.M. at police station Baggar, District Jhunjhunu wherein he stated that about three months back, his younger brother Vidhyadhar got a cow sold by Ramkaran to Banwari Lal for Rs. 11,000/-. Ramkaran had told Vidyadhar that he would be charging the sale amount from him instead of Banwarilal. The said amount could not be paid by Vidhyadhar and hence Ramkarans family was harbouring a grudge against him. A day before the incident, Vidhyadhar had gone to repair motor of their well at village Lalpur and there he was beaten at the Bus Stand by Rajendra. However, no report of the said incident was made to police as the matter was likely to be solved through community Panchayat. On August 20, 2004 at 7.00 P.M., the informant had gone to Ramkaran to complain about the said incident. The informant was talking to Ramkaran who was standing in `Johada, suddenly Sultan, Rajendra Vijay and Raghuveer came armed with `lathis and exhorted to kill him. So, the informant ran toward his field. By then, Tarachand came there hearing the noise, he was beaten and dragged by all the five persons including Ramkaran and they took Tarachand to the house of Ramkaran leaving behind the trail of blood and`chappals on the way. Later on in the night, on being informed by the police, he went to B.D.K. Hospital, Jhunjhunu where his brother Tarachand was admitted. Tarachand was having injuries on head, ribs and other parts of th body. Later on in the night, on being informed by the police, he went to B.D.K. Hospital, Jhunjhunu where his brother Tarachand was admitted. Tarachand was having injuries on head, ribs and other parts of th body. On being enquired, Tarachand told him that he was inflicted `lathi blow on head by Rajendra, on both the ribs by Raghuveer and Ramkaran and on his back by Vijay. Tarachand also informed that he was taken at the house of Ramkaran, there Hari Singh and Hanuman Singh came on hearing cries and asked to spare him but he was not released though they assured for the sale price of the cow to them, and then he was admitted in the hospital by the police. On this report, a case u/S. 365, 307, 147, 148, 149 and 323 IPC was registered and the investigation commenced. (3). During investigation, necessary memos were drawn, statements of witnesses were recorded, accused persons were arrested and weapons (lathis) of offence were recovered. After collecting necessary evidence, challan was filed against Ramkaran, Raghuveer, Sultan and Rajendra. (4). In due course, the case came up for trial before the learned Additional Sessions Judge, Fast Track No. 2, Jhunjhunu. Charges under Sections 147, 148, 149, 365, 323, 307 and 302 IPC, were framed against the accused who denied the charges and claimed trial. The prosecution in support of its case, examined as many as 16 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge after hearing final submissions, convicted and sentenced the appellants as indicated here-in-above. (5). We have heard learned counsel for the appellants, learned Public Prosecutor and the learned counsel for the complainant and with their assistance, scanned the material on record. (6). Death of Tara Chand was undeniably homicidal in nature. As per the post mortem report (Ex. P. 33) the following ante mortem injuries were found on his body: 1. Lacerated wound 4 cm x 1 cm x 1/2 cm left tempoparietal region of head. No hematoma, no bony injury. 2. Diffuse swelling with bruise 10 cm x 3 cm left side of chest. On explanation his fracture of 10, 11 and 12th rib which pierced the spleen posto and ruptured. 3. Diffuse swelling epigestic on explanation pentral cavity Full of blood due to rupture of spleen. In the opinion of Dr. No hematoma, no bony injury. 2. Diffuse swelling with bruise 10 cm x 3 cm left side of chest. On explanation his fracture of 10, 11 and 12th rib which pierced the spleen posto and ruptured. 3. Diffuse swelling epigestic on explanation pentral cavity Full of blood due to rupture of spleen. In the opinion of Dr. Pratap Singh (PW. 15), the cause of death of Tarachand was shock due to severe haemorrhage caused by ruptured spleen. All the injuries were ante mortem in nature. (7). Deceased Tarachand was examined for his injuries before death by Dr. Pratap Singh (PW. 15) vide Ex. P. 32, who found the following injuries on his body: 1. Lacerated wound 4 cm x 1 cm x 1/2 cm left tempoparietal region of head. 2. Diffuse swelling with bruise 10 cm x 3 cm left side of chest. 3. Diffuse swelling with tenderness above side of abdomen. (8). From the evidence adduced by the prosecution, it is revealed that Banwari (PW. 12) had purchased a cow for Rs. 11,000/- from appellant Ramkaran and Vidhyadhar (PW. 13) had assured to make the payment of the sale price to Ramkaran on behalf of Banwari Lal. Appellant Ramkaran and his family members harboured a grudge against the family of Vidhyadhar (PW. 13) for failing to make the said payment. On the day this incident occurred, Ghasi Ram (PW. 2) had gone to lodge a protest to Ramkaran about the incident of beating Vidhyadhar (PW. 13) by appellant Rajendra a day before the incident. This incident occurred in the evening at about 7.00 P.M. on August 22, 2004 when Ghasi Ram was talking to Ramkaran. In this regard, Ghasi Ram (PW. 2) has deposed that when he was talking to Ramkaran, suddenly Sultan, Rajendra, Vijay and Raghuveer came armed with `lathis and all the five exhorted to kill him. So, he ran towards fields to save himself. Then Tarachand (deceased), his brother came there on hearing the noise and he was beaten by all of them with `lathis and then they dragged him to their house. Then on getting information from police that his brother Tarachand was admitted in the hospital at Jhunjhunu, he along with Mahadaram (PW. 8) and Birbal (PW. Then Tarachand (deceased), his brother came there on hearing the noise and he was beaten by all of them with `lathis and then they dragged him to their house. Then on getting information from police that his brother Tarachand was admitted in the hospital at Jhunjhunu, he along with Mahadaram (PW. 8) and Birbal (PW. 9) went to the hospital and there Tarachand told them that he was inflicted `lathi blow on head by accused Rajendra, on ribs by Raghuveer and Ramkaran, and on back by accused Sultan and Vijay Singh. He also told that he was taken by the accused to the house of Ramkaran and there Hari Singh (PW. 7) and Hanuman (PW. 4) had come to get him release but he was not released. This testimony of Ghasi Ram (PW. 2) stands corroborated by Mahada Ram (PW. 8) and Birbal (PW. 9) who accompanied Ghasi Ram (PW. 2) to hospital where Tarachand (deceased) was admitted. Hanuman (PW. 4) and Hari Singh (PW. 7) have also corroborated the fact that they had gone to the house of accused Ramkaran and they saw Tarachand lying on a cot with injuries on his body and they asked Ramkaran to release Tarachand but he refused to do so. Om Prakash (PW. 14), who had field near the field of Tarachand, has deposed that he heard hue and cry from the side of field of Tarachand and on proceeding to ascertain, he met Suresh and he along with Suresh went to the border of the field and saw Tarachand who was being beaten with `lathis by all the accused persons. After a little while, he saw Hari Singh (PW. 7) coming from the house of accused Ramkaran and on enquiry, he told him that he along with Hanuman Singh (PW. 4) had gone to the house of Ramkaran and found Tarachand lying on a cot with injuries on his body at the house of Ramkaran and asked him to release him. The fact that cow was purchased from accused Ramkaran by Banwari Lal (PW. 2), and Vidhyadhar (PW. 13) had promised to make the payment on his behalf to Ramkaran, has also been corroborated by Banwari Lal (PW. 12) and Vidhyadhar (PW. 13). Om Prakash (PW. 5), ASI, Police Station Baggar, who conducted investigation of FIR No. 128/04 (Ex. The fact that cow was purchased from accused Ramkaran by Banwari Lal (PW. 2), and Vidhyadhar (PW. 13) had promised to make the payment on his behalf to Ramkaran, has also been corroborated by Banwari Lal (PW. 12) and Vidhyadhar (PW. 13). Om Prakash (PW. 5), ASI, Police Station Baggar, who conducted investigation of FIR No. 128/04 (Ex. P. 34) lodged by accused Rajendra S/o Ramkaran, has deposed that he rushed to the place of occurrence in a jeep and found Tarachand lying on a cot with injuries in unconscious state at the house of accused Rajendra. Then he brought Tarachand to B.D.K. Hospital, Jhunjhunu where he was admitted. According to him, he could not record the statement of Tarachand as he was unconscious though he stayed only for an hour at the hospital and handed a report to the doctor to inform him as and when Tarachand regained his consciousness and had also left a constable at the hospital. Thus, it is revealed that the incident had occurred in the manner disclosed by the prosecution. The appellants, who were examined u/S. 313 Cr.P.C., have explained that they have been falsely implicated on account of enmity but have not explained under what circumstances Tarachand was found at the residence of Ramkaran with injuries on his body. In this regard, the learned counsel for the appellants has tried to explain that FIR (Ex. P. 34A) was lodged by accused Rajendra on 20.8.2004 at 11.45 P.M. stating that accused party was attacked by Tarachand, Ghasi Ram, Vidhyadhar, Bholaram and others while they were sleeping at their residence and Tarachand was caught on the spot and the matter was reported to the police. It was further contended that the oral dying declaration by deceased Tarachand about the injuries attributed to the appellants is unconvincing as the deceased remained unconscious until death. With regard to the incident alleged on behalf of appellants, Ram Singh (PW. 6) SHO, police station Baggar has deposed that the case registered vide FIR No. 128/04 (Ex. P. 34) was investigated and `Final Report was submitted in the matter as no incident as alleged was found to have been occurred. This further verifies that the instant occurrence had taken place in the manner as disclosed by the prosecution. (9). 6) SHO, police station Baggar has deposed that the case registered vide FIR No. 128/04 (Ex. P. 34) was investigated and `Final Report was submitted in the matter as no incident as alleged was found to have been occurred. This further verifies that the instant occurrence had taken place in the manner as disclosed by the prosecution. (9). In Vishram and Others vs. State of Madhya Pradesh (1993 Supp (2) SCC 274) Honble Apex Court had an occasion to consider oral dying declaration and the same was found to be convincing where FIR itself had mentioned about the earlier dying declaration and had also given the necessary details, and in the facts of the case, where the doctor who examined the deceased on being cross examined stated that ordinarily injuries found on head of the deceased could cause unconsciousness but it could not be positively be said that they would have caused immediate unconsciousness. (10). On analysing the evidence on above touch stone, it is revealed that informant Ghasi Ram (PW. 4) lodged the report (Ex. P. 2) at 4.15 A.M., just after Tarachand was admitted in the Hospital at Jhunjhunu and the report (Ex. P. 2) mentioned the fact that the informant Ghasiram (PW. 4) was accompanied by Mahada Ram (PW. 8) and Birbal (PW. 9) to the hospital and there Tarachand narrated the necessary details contained in the FIR (Ex. P. 2) and that included the fact that they were told by Tarachand that accused Raghuveer and Ramkaran had inflicted injury on his ribs. Tarachand was examined for his injuries at 4.20 A.M. (that night) by Dr. Pratap Singh (PW. 15) who found corresponding injuries on the body of Tarachand and did not mentioned in injury report (Ex. P. 32) that Tarachand was unconscious, for which he deposed that he could have mentioned so had he been unconscious. Thus, the veracity of oral dying declaration made by Tarachand (deceased) stands verified from the FIR (Ex. 2) as well as the medical evidence. (11). P. 32) that Tarachand was unconscious, for which he deposed that he could have mentioned so had he been unconscious. Thus, the veracity of oral dying declaration made by Tarachand (deceased) stands verified from the FIR (Ex. 2) as well as the medical evidence. (11). In Khuman Singh and Others vs. State of M.P. (2005 SCC (Cri) 1451), the occurrence had taken place suddenly pursuant to a quarrel over a trivial issue between two groups and the injury causing death of the deceased was the one suffered by him on account of the rib bone puncturing the liver and in those circumstances, the Apex Court observed that the injury suffered by the deceased on his liver was at best accidental and it could not be said that the appellants had intention to cause any injury to liver which perhaps proved fatal, and in these circumstances, instead of 302 IPC the offence u/S. 304 Part II was found proved against the appellants. (12). Likewise, in the instant case, the occurrence took place on trivial matter of payment of sale price of a cow. Deceased Tarachand was found to have sustained three insignificant exteneral injuries on examination by Dr. Pratap Singh (PW. 15) vide Ex. P. 32 but death occurred after six hours or so and on post mortem (Ex. P. 33), the cause of death was found to be severe haemorrhage due to rupture of spleen which was pierced due to fracture of 10, 11 and 12 ribs. The corresponding injuries are found to have been caused by appellants Ramkaran and Raghuveer with `lathi and in these circumstances, they had no intention to cause death of Tarachand though they certainly had the knowledge that such bodily injury was likely to cause death. Therefore, we find that instead of 302 read with section 34 IPC, appellants Ramkaran and Raghuveer are found to have committed the offence u/S. 304 Part II read with 34 IPC. However, no offence u/S. 148 and 365 IPC is found proved against them. Likewise, no offence is found proved against appellants Sultan and Rajendra. (13). For these reasons, We dispose of the instant appeals in the following terms:- (i) We allow the appeal of Sultan and Rajendra and acquit them of the charges under Sections 148, 365 and 302/149 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (13). For these reasons, We dispose of the instant appeals in the following terms:- (i) We allow the appeal of Sultan and Rajendra and acquit them of the charges under Sections 148, 365 and 302/149 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (ii) we partly allow the appeal of Ram Karan and Raghuveer 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 148 and 365 IPC. (iii) The impugned judgment of learned trial Court stands modified as indicated above.