JUDGMENT 1. - This appeal has been filed against the judgment dated 18.2.2003 1 passed by Additional Sessions Judge No. 2 (Fast Track) Kota in Sessions Case No. 48/2001, by which he convicted accused-appellant Nathu Lal under Section 302 IPC and other accused-appellants Ram Gopal, Chittar Lal, Gopi Lal, Nathu Lal and Gordhan Lal under Section 302/149 IPC and sentenced 5 each accused to undergo life imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment and further convicted accused-Gordhan Lal under Section 325 IPC and other accused-appellants under Section 325/149 IPC and sentenced each accused to undergo three years rigorous imprisonment and fine of Rs. 3,000/-, in default of payment of fine, to further undergo three months imprisonment and further convicted all accused-appellants under Section 323 IPC and sentenced each accused to undergo six months simple imprisonment and fine of Rs. 500/-, in default of payment of fine, to further undergo 15 days imprisonment. 2. Brief facts of the prosecution case are, that PW2-Prem Bihari alongwith PW1-Sukhlal lodged FIR Ex.P/1 on 5.7.1998 at 2.00 a.m. and stated that six bighas land in Khasra Nos. 124 and 130 of Village-Kakaravada belonged to his mother's sister-Gulab Bai, but after the death, this land was recorded in his name. After her mother's sister death, since last three years his land was being cultivated unauthorisedly by Nathulal, Bajrang Lal and K.S. Chaudhari, J. babulal Lashkari. This year he gave this land to Sukhlal for cultivation for one year. On 5.7.98 at 6.00 p.m. he alongwith Sukh Lai and Bhanwar Lal went on his land and were returning back after tilling by tractor, at 8.30 p.m. Nathu, Chhitar, Gordhan, Gopi Lal, Bajrang Lal Mangi Lal, Bhanwar Lal, and Gopal : Lashkari met them in the way near the field of Onkar Das and stopped their tractor. Chhitar Lal was armed with Kulhari, Nathu Lal with Khutia and others with lathis and with intention to kill all of them, accused-persons started beating them on account of which they received injuries. Hira Bai and Rukmani were also armed with lathis. All of them received injuries on various parts of bodies and this occurrence was also seen by Ghanshyam and Keshav Lal. Hira Bai and Rukmani were also armed with lathis. All of them received injuries on various parts of bodies and this occurrence was also seen by Ghanshyam and Keshav Lal. On this report case under Sections 147, 148, 149, 323, 341, 307 IPC was registered and during investigation, injured Bhanwar Lal died and Section 302 IPC was added and after completion of investigation, challan under Sections 147, 148, 149, 307, 325, 323, 302 IPC was filed against accused-appellants in the Court of Civil Judge (Jr. Division) & Judicial Magistrate, Sangod. Case was committed to the Court of Sessions Judge, Kota and charges under Sections 148, 323, 325/149, 302 in the alternate 302/149 IPC were framed against accused-persons to which they denied. During trial, the case was transferred to Additional Sessions Judge No. 2 (Fast Track), Kota. Prosecution examined 17 witnesses and after recording statement of accused persons under Section 313 Cr.P.C. and hearing arguments, the accused-appellants were convicted and sentenced as aforesaid. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the appellants argued that false facts have been mentioned in FIR regarding possession of land and presence of eye witnesses to the occurrence and further argued that possession of land was with accused- persons and if while asserting right of private defence, accused-Nathu Lal has exceeded the right, at the most he alone may be convicted under Section 304 Part-II IPC and further argued that in the absence of proof of unlawful assembly learned trial Court has committed error in convicting accused-appellants under Sections 148, 302/149, 325/149 IPC and further argued that in the absence of charge under Section 325 IPC against accused-Gordhan Lal he could not have been convicted under Section 325 IPC, hence, appeal may be accepted and accused-appellants may be acquitted of the charges levelled against them. 5. On the other hand, learned Public Prosecutor and learned counsel appearing for the complainant argued that there is consistency in the statements of injured eye witnesses and the trial Court has given cogent reasons for conviction and prosecution has proved the case against the accused-appellants beyond reasonable doubt, hence, the appeal of the appellants may be dismissed. 6. As far as the eye witnesses are concerned, as per Report Ex.P/1 injured-Prem Bihari & Sukh Lal, Ghanshyam and Keshav Lal were eye witnesses. 6. As far as the eye witnesses are concerned, as per Report Ex.P/1 injured-Prem Bihari & Sukh Lal, Ghanshyam and Keshav Lal were eye witnesses. PWl-Sukh Lal has no where stated in his statement that Ghanshyam and Keshav Lal were on the field at the time of occurrence. On the contrary, he has admitted in his cross examination that at the time of occurrence none other eye witness of village was present on the spot except himself and Prem Bihari and deceased-Bhanwar Lal. PW2-Prem Bihari has stated in his statement that accused-persons inflicted injuries on their body and after that, Kalu and Ghanshyam came from village and after hearing their voice accused-persons ran away. PW3-Ghanshyam, who is real brother of deceased-Bhanwar Lal, has stated that Sukh Lal, Prem Bihari and Bhanwar Lal went to the field on his tractor. At 9.30 p.m. Sukh Lal returned to this witness house and revealed that Bhanwar Lal and Prem Bihari have been killed. Then he alongwith his father went on the spot and brought injured persons to police station and he lodged report and none other lodged report. He has further deposed that report was signed by Prem Bihari and Sukh Lal and it was not signed by him. Later on in cross examination he made exaggeration and stated that in his presence accused persons inflicted injuries on the body of injured persons and damaged lights of tractor and further improved the statement and stated that ladies of accused-persons also inflicted injuries. He has admitted in his cross examination that his house is at a distance of half kilometer from the disputed field and he alongwith his father went to the field on foot which took 15 to 20 minutes time and till then accused-persons were inflicting injuries. Looking to the number of injuries on the body of deceased and injured persons it cannot be believed that quarrel continued for more than half an hour and PW3-Ghanshyam saw the occurrence. PW3- Ghanshyam has admitted in his examination in chief that Sukh Lal informed him at his residence that Bhanwar Lal and Prem Bihari have been murdered and after 20 minutes, he alongwith his father reached on the spot. In such circumstances, it cannot be believed that he has seen any occurrence. He has rather implicated ladies of the accused-persons which fact has not found corroboration from the statement of any other eye witnesses. In such circumstances, it cannot be believed that he has seen any occurrence. He has rather implicated ladies of the accused-persons which fact has not found corroboration from the statement of any other eye witnesses. PW1-Sukh Lal has clearly admitted in his cross examination that except himself, Bhanwar Lal and Prem Bihari, none other villager was present on the spot. PW2-Prem Bihari has also admitted in his cross examination that accused-persons ran away when they heard voice of Kalu and Ghanshyam, Thus, it becomes clear that PW3-Ghanshyam has not seen the occurrence at all and his statement cannot be relied on in respect of the fact that all accused-persons gave beating to injured and deceased. PW4-Kalu Lal has stated that he was viewing TV between 9.00 to 10.00 p.m. at his maternal uncle-Keshav Lal's home alongwith Keshav Lal, Murli and Jagdish. Injured-Sukh Lal came there and disclosed that he alongwith Prem Bihari have been beaten by accused-Nathu Lal etc. Then, he alongwith other persons went to the spot and brought Prem Bihari. Bhanwar Lal was brought earlier by someone else and report was lodged by Ghanshyam. He does not say that Ghanshyam has seen the occurrence at all. PW9-Keshav Lal has stated that he was sleeping at his house, Sukh Lai came to his house and told that Bhanwar Lal and Prem Bihari have been murdered by accused-persons. Then, he alongwith Kalu Lal and Murli went to the spot and brought Prem Bihari, then took him to the police station and hospital where he died. He no where states that he has seen any occurrence. PW4-Kalu Lal's presence has not been shown on the spot in report Ex.P/1. Thus, it becomes clear that PW3-Ghanshyam, PW4-Kalu Lal and PW9-Keshav Lal are not eye witnesses to the occurrence and Ghanshyam and Keshav Lal have falsely been shown as eye witnesses to the occurrence in FIR-Ex.P/1. 7. Now remains only two eye witnesses PW1-Sukh Lal and PW2-Prem Bihari. PWl-Sukh Lal has stated that Nathu Lal inflicted two blows with Khutia on the head of Bhanwar Lal and accused-Nathu Lal inflicted third blow on the right ear of Prem Bihari. Then, accused-Gordhan Lal and Gopal inflicted blows with Kulhari and lathis on his body and then other accused-persons came on the spot, then he ran away. PWl-Sukh Lal has stated that Nathu Lal inflicted two blows with Khutia on the head of Bhanwar Lal and accused-Nathu Lal inflicted third blow on the right ear of Prem Bihari. Then, accused-Gordhan Lal and Gopal inflicted blows with Kulhari and lathis on his body and then other accused-persons came on the spot, then he ran away. He was beaten only by accused-Gordhan Lal and Gopal and in his presence only accused-Nathu Lal inflicted blows with Khutia on the body of Bhanwar Lal and Prem Bihari. Thus, it becomes clear that according to PW1-Sukh Lal only three accused-persons inflicted blows on the body of injured persons and other accused-persons came on the spot lateron. PW2-Prem Bihari has stated in his statement that when they were returning back near filed of Bohraji, accused-Nathu Lal, Gopal and Gordhan Lal stopped their tractor and inflicted blows. Lateron, other accused- persons came on the spot and inflicted injuries. This witness has also admitted this fact that other accused- persons came on the spot and inflicted injuries. This witness has also admitted this fact that other accused-persons came lateron and only three accused-persons were on the spot at the time of beating. He has later on stated that other accused-persons also came on the spot and inflicted blows on their body, but this statement cannot be believed looking to the number of injuries received by injured persons specially when he has changed his statement many times in cross examination. He admitted that there was stay by Revenue Board in favour of Amar Lal, lateron he denied this fact. Again he admitted that since 1993 there was stay against him pertaining to the disputed land. Again he stated that he was not aware whether cases pending in the Courts pertains to Khasra Nos. 124 and 130, but lateron admitted that Khasra Nos. 124 and 130 belongs to his mother's sister and there was stay pertaining to these fields. He has also admitted that he was not in possession of disputed fields and accused-persons were in possession of field and they had obtained stay against him. He has also admitted that after death of his mother's sister till the day of occurrence he never went on the disputed fields except on the day of alleged occurrence. He has also admitted that he was not in possession of disputed fields and accused-persons were in possession of field and they had obtained stay against him. He has also admitted that after death of his mother's sister till the day of occurrence he never went on the disputed fields except on the day of alleged occurrence. He has clearly admitted that Nathu Lal, Gopal and Gordhan Lal came firstly and after 5 to 10 minutes other accused-persons came on the spot. Thus, it becomes clear that at the most only three accused-persons Nathu Lal, Gopal and Gordhan Lal were on the spot and rest of the accused-persons came after 5 to 10 minutes and they have not inflicted injuries on the body of injured and deceased. 8. PW10 - Dr. R.K. Tiwari has stated that he examined injuries of Bhanwar La and Prem Bihari on 5.7.98 and found six injuries on the body of Bhanwar Lal, out of which one on the nose was caused by sharp-edged weapon and other injuries were caused by blunt weapon. He further deposed that there were five injuries on the body of Prem Bihari out of which injury No. 1 on the foot was found to be grievous and other injuries were simple in nature and further stated that all these injuries were caused by blunt weapon. PW16-Dr. Prem Chand Khandelwal stated that on 10.7.1998 he examined Sukh Lal and found four injuries on his body which were simple in nature and caused by blunt weapon and these injuries were of 4 to 7 days duration. PW10-Dr. P.K. Tiwari further stated that injured Bhanwar Lal died and he conducted postmortem on 6.7.1998 and further stated stated that Bhanwar Lal died on account of Coma as a result of intra carnial haemorrhage due to head injury. Thus, it can be inferred that on account of head injuries inflicted by accused-Nathu Lal, injured- Bhanwar Lal died and accused-Nathu Lal, Gordhan Lal and Gopal inflicted injuries on the body of deceased-Bhanwar Lal and injured-Sukh Lal & Prem Bihari. 9. For forming unlawful assembly five or more accused- persons on the spot are required. As per above discussion, it becomes clear that only three accused-persons namely Nathu Lal, Gopal and Gordhan Lal were on the spot and other accused-persons were not on the spot. 9. For forming unlawful assembly five or more accused- persons on the spot are required. As per above discussion, it becomes clear that only three accused-persons namely Nathu Lal, Gopal and Gordhan Lal were on the spot and other accused-persons were not on the spot. In such circumstances, prosecution has utterly failed in proving unlawful assembly and accused-persons cannot be convicted under Section 148 and other offences with the aid of Section 149 IPC. 10. As per Report-Ex.P/1 the disputed land belonged to Prem Bihari's mother's sister-Gulab Bai which land came in possession and ownership of Prem Bihari after death of Gulab Bai. PW2-Prem Bihari has not stated anything about the ownership and possession of the land in his examination 1 in chief. The prosecution has not produced any document by which it can be inferred that this land originally belonged to Gulab Bai and after her death this land came in ownership and possession of Prem Bihari. In cross examination Prem Bihari has clearly admitted that this land never remained in his 5 possession and since 1993 and the land was in possession of accused-persons and they had obtained stay against Prem Bihari. He has also admitted that inspite of orders of the Court against him, he went to the fields. PW17-Lalu Ram has stated that he was SHO at Police Station Simaliya and he investigated the matter. In his cross examination he admitted that he 10 was not aware who was in possession of Khasra Nos. 124 and 130 and who had cultivated the crop on the field. He further stated that he has not investigated whether there was any stay in favour of accused. He has admitted that accused-persons cultivated the crop of Soyabeen on this field and Prem Bihari, Sukh Lal & Bhanwar Lal destroyed the accused persons 15 crop on the field on account of which quarrel took place. He has further admitted that quarrel took place in the field which was in the possession of accused-persons. 11. PW1-Sukh Lal has stated that Prem Bihari is his nephew. He has further stated that he and Prem Bihari were living at Kota. He was not aware 20 about litigation pertaining to these fields between Prem Bihari and accused-persons. He was not aware that who was cultivating this land. He has stated that he went on the field just to help Prem Bihari. He has further stated that he and Prem Bihari were living at Kota. He was not aware 20 about litigation pertaining to these fields between Prem Bihari and accused-persons. He was not aware that who was cultivating this land. He has stated that he went on the field just to help Prem Bihari. He has admitted that had they not gone on the field to cultivate it, there would not have been any occurrence. Thus, it becomes clear that as per admission of PW2-Prem 25 Bihari and PW17-Lalu Ram Khasra Nos. 124 and 130 were in the possession of accused-persons and inspite of stay from the Revenue Court in favour of accused-persons and against Prem Bihari injured persons alongwith deceased Bhanwar Lal went on the field and cultivated it and destroyed the crop of accused-persons. In such circumstances, accused-persons had a 3 right of private defence of property. 12. Learned counsel for the complainant submitted that as per Site Plan Ex.P5 and FIR Ex.P1, occurrence took place in the way near the field of Onkar Das, which is far away from the disputed field, hence, the accused persons had no right of private defence. PW14 Ganpat Singh has stated that : he prepared Site Plan Ex.P5. He has admitted in his cross examination that Site Plan Ex.P5 was not prepared at the instance of any eye-witness and it was prepared at the instance of Kalu Lal, who was not the eye-witness to the occurrence. He has further stated that he recovered blood smeared soil from the spot vide Recovery Memo Ex.P6. On the contrary, PW6 Ramlal has stated that Site Plan Ex.P5 which was prepared by the police, bears his signature but he has not seen any blood on the spot. He is not aware what was written by the police personnel in Site Plan Ex.P5. He is not aware whether there was crop of `Soyabeen' or not in the field, of which Site Plan was prepared. PW7 Madan Lal has also stated that the police took them to the field and prepared Site Plan Ex.P5. 13. From the statements of these witnesses, .it becomes clear that the police took these witnesses to the disputed field, but for the reasons best known to them, prepared Site Plan Ex.P5 and shown the occurrence in the way near the field of Onkar Das. 13. From the statements of these witnesses, .it becomes clear that the police took these witnesses to the disputed field, but for the reasons best known to them, prepared Site Plan Ex.P5 and shown the occurrence in the way near the field of Onkar Das. Ganpat Singh has not mentioned the distance of disputed field Khasra Nos. 124 and 130 from the alleged place of occurrence. In such circumstances, it cannot be inferred that the occurrence took place in the way near the filed of Onkar Das. On the contrary, PW3 Ghanshyam has stated that when he reached in the field, the accused persons were beating the injured persons. Though his statement is not reliable as he was not the eye-witness but this fact can be inferred from his statement that the occurrence took place in the field and not in the way near the field of Onkar Das. 14. PW4 Kalu Lal has stated that Sukhlal came at his house and informed him that they have been beaten and Prem Bihari is lying in the field and in cross examination he has stated that he is not aware in whose field Prem Bihari was lying. Thus, it becomes clear that the occurrence took place in the field and Prem Bihari was lying in the field. PW3 Ghanshyam has stated that he lodged the report. 15. A perusal of the report Ex.P1 reveals that it does not bear signature of Prem Bihari, through, his name has been written below the applicant. After police endorsement, this report has been signed by Prem Bihari and Sukhlal. PW1 Sukhlal has admitted in his cross examination that except on the day of occurrence, he never went on the disputed field, so he is not aware who was in possession of this land. He has nowhere stated that the occurrence took place in the way near the field of Onkar Das. PW2 Prem Bihari has stated in his examination-in-chief that while returning back in the way, near the field of Bohra ji occurrence took place, but he has admitted in his cross examination that after the death of his mother's sister and before the day of occurrence, he never went on the disputed field. PW2 Prem Bihari has stated in his examination-in-chief that while returning back in the way, near the field of Bohra ji occurrence took place, but he has admitted in his cross examination that after the death of his mother's sister and before the day of occurrence, he never went on the disputed field. According to him, admittedly, this land belongs to his mother's sister and before her death, apparently he had no occasion to go on the land as he and Sukhlal were living at Kota and not in the village Kakrawada. 16. Thus, it becomes clear that place of occurrence namely way to village near the field of Onkar Das was shown by PW3 Ghanshyam, which fact was later on supported by Prem Bihari, but looking to the contradictions in their statements coupled with the evidence of other witnesses, it cannot be believed that the occurrence took place in the way near the field of Onkar Das. Had it been so, blood must have been found on the spot which was not there as per the statement of PW6 Ramlal. Thus, it becomes clear that occurrence took place in the disputed field and place of occurrence has been shifted to deprive accused persons from the right of private defence. It was held by the Apex Court in the case of Buta Singh v. State of Punjab, reported in AIR 1991 SC 1316 , that when no blood was found in the disputed field where according to the prosecution incident occurred and blood was found near the tube well adjacent to Dera of accused, it can be inferred that the incident occurred near the tube well of accused and the reasons for shifting the place of occurrence was obvious i.e. not to show prosecution party as aggressor. In the present case, to deprive the accused persons from the right of private defence place of occurrence has been shifted. 17. The evidence of the witnesses clearly reveals that the accused persons were in peaceful possession of the disputed field and the deceased and the injured persons went there to destroy the crop of the accused persons and thus, the deceased and the injured persons were the aggressors and the accused persons had the right of private defence. 18. 17. The evidence of the witnesses clearly reveals that the accused persons were in peaceful possession of the disputed field and the deceased and the injured persons went there to destroy the crop of the accused persons and thus, the deceased and the injured persons were the aggressors and the accused persons had the right of private defence. 18. If for the sake of arguments, it is believed that the incident took place in the way near the field of Onkar Das while returning back after destroying the crop cultivated by the accused persons, even then the accused persons had the right of private defence. It has been held in the case of Ram Avtar and others v. State, reported in AIR 1954 Allahabad 771 , that even if the person who is claiming that right happens to be placed at some distance (6-7 furlongs) from the property, he can exercise that right, provided he finds that damage to property will accrue, if the right is not exercised. Therefore the right can be exercised at the place, where the two parties met. Thus, it becomes clear that the accused persons had the right of private defence even in the way near the field of Onkar Das. 19. If one of the accused exceeded the right of private defence, only that individual is responsible for his act and other accused-persons cannot be held guilty with the aid of Section 34 and 149 IPC. It was held in Ram Avtar's case (supra) that where any person exceeded the right and gave the fatal blow, it was his individual act and further held that when there is no evidence to fix the identity of that individual, none of the accused is guilty under Section 302 IPC. Evidence reveals that accused-Nathu Lal inflicted two blows of Khutia on the head of deceased- Bhanwar Lal and deceased died on account of head injury. PWl-Sukh Lal has admitted that Khuntia is sharp-edged weapon. PW2-Prem Bihari has also stated that accused-Nathu Lal inflicted blow with Khutia on the head of Bhanwar Lal and lateron Nathu Lal inflicted injury with Khutia on the hand of PW2-Prem Bihari which caused injury near thumb. As per injury reports head injury on the body of Bhanwar Lal was caused by blunt weapon and injury on thumb of Prem Bihari was also caused by blunt weapon. As per injury reports head injury on the body of Bhanwar Lal was caused by blunt weapon and injury on thumb of Prem Bihari was also caused by blunt weapon. Khutia was recovered on the information and at the instance of accused-Nathu Lal on 7.7.98 vide recovery memo Ex.P/15, which was not bloodstained. It appears that either injury was not inflicted with Khutia or if at all inflicted with Khutia by accused-Nathu Lal, it was inflicted from blunt side by which it can be inferred that he had no intention to cause death of Bhanwar Lal. PW10-Dr. PK. Tiwari has neither stated in postmortem report nor in his examination in chief that injuries on head were sufficient in the ordinary course of nature to cause death or was likely to cause death. Learned counsel for the appellants placed reliance on 2006 (10) SCC 639 , Bunni Lal Chaudhary v. State of Bihar in which it was observed by the Hon'ble Apex Court that if doctor has not opined that the injury was sufficient in the ordinary course of nature to cause death or likely to cause death and there was no motive or intention of accused to cause death of deceased, accused's case falls within Part-Ill of Section 299 and will be punishable under the second part of Section 304 IPC as culpable homicide not amounting to murder. In the present case Bhanwar Lal who was owner and driver of the tractor and was resident of village of accused-persons and apparently there was no motive or intention to cause death of Bhanwar Lal, accused-Nathu Lal cannot be convicted under Section 302 IPC specially when injuries have been inflicted from the blunt side by Khutia and he can be convicted only under Section 304 Part-II IPC. Accused- Gordhan Lal and Gopal cannot be convicted under Section 302/149 IPC as prosecution has failed to prove unlawful assembly. As per above discussion, accused Nathu Lal has exceeded the right of private defence of property and thus, accused-Gopal and Gordhan Lal can be convicted only under Section 323 IPC as they have inflicted only simple injuries to the injured persons as well as deceased. 20. The trial Court has framed charge under Section 325/149 IPC against all the accused-persons, but has convicted accused-Gordhan Lal under Section 325 IPC and other accused-persons under Section 325/149 IPC. 20. The trial Court has framed charge under Section 325/149 IPC against all the accused-persons, but has convicted accused-Gordhan Lal under Section 325 IPC and other accused-persons under Section 325/149 IPC. As per injury report Prem Bihari sustained grievous injury on his foot which was apparently caused by accused-Gordhan Lal. Accused-Gordhan Lal has been charged under Section 325/149 IPC and in such circumstances, he could not have been convicted under Section 325 IPC as held by Hon'ble Apex Court in AIR 1955 SC 274 , Nanak Chand v. State of Punjab and AIR 1966 SC 1742 , Lakhan Mahto & Ors. v. State of Bihar . 21. In the light of the aforesaid judgments, accused- Gordhan Lal is entitled to acquittal under Section 325 IPC and as prosecution has failed to prove unlawful assembly, other accused-Gordhan Lal and Gopal also can not be convicted under Section 325/149 IPC. 22. In the light of above discussion, it becomes clear that prosecution has failed to prove charge of unlawful assembly and the trial Court has committed error in convicting accused-persons under Sections 148, 302, 302/149, 325, 325/149 IPC and accused-Bhanwar Lal, Chhitar and Gopi Lal under Section 323 IPC. 23. Before parting with this case, we may add that the Investigating Officer PW17 Laluram has not investigated the matter properly. He has purposely shifted the place of occurrence and again and again has changed the statement in the Court. He failed to obtain necessary documents from the complainant regarding ownership and possession of the disputed land. He conducted the investigation in superfrivoious manner, which was not expected from him. Disciplinary action may be taken against him by the concerned authority and a copy of this judgment may be sent to the Director General of Police for initiating disciplinary action against him. The Director General of Police is further directed to intimate about the result of the enquiry to this Court. 24. In Bunni Lal's case (supra), conviction under Section 302 IPC was altered to Section 304 Part-II IPC and sentence of 5 years was awarded. In State of U.P. v. Lakhmi, reported in (1998)4 SCC 336 , conviction was altered from Section 302 to Section 304 Part-I IPC and the accused was sentenced to undergone rigorous imprisonment for a period of 6 years. In State of U.P. v. Lakhmi, reported in (1998)4 SCC 336 , conviction was altered from Section 302 to Section 304 Part-I IPC and the accused was sentenced to undergone rigorous imprisonment for a period of 6 years. In the present case, accused- appellant Nathu Lal has inflicted two blows on the head of the deceased from blunt side of Khuntia and in such circumstances, we deem it a fit case in which accused- appellant Nathu Lal should be sentenced to the period already undergone by him in custody (7 years, 2 months) under Section 304 Part-II IPC. 25. Consequently, D.B. Criminal Appeal No. 316/2003 filed by the appellants is partly allowed. Accused-appellants Bhanwar Lal, Chittar Lal and Gopi Lal are acquitted under Section 148, 302/149, 325/149 and 323 IPC. Accused- appellant Gordhan Lal is acquitted under Sections 148, 302/149 and 325 IPC and accused-appellant Ram Gopal is acquitted under Section 148, 302/149 and 325/149 IPC. Accused-appellant Nathu Lal is acquitted under Sections 148, 325/149 IPC and his conviction under Section 302 IPC is altered to Section 304 Part-II IPC and he is acquitted of the offence under Section 302 IPC and is convicted under Section 304 Part-II IPC and sentenced to the period already undergone by him in custody. His conviction and sentence under Section 323 IPC is maintained. The conviction and sentence of accused-appellants Gordhan Lal and Ram Gopal under Section 323 IPC awarded by the trial Court is maintained. Accused-appellants Bhanwar Lal, Chhitar Lal and Gopi Lal are on bail. They need not to surrender and their bail bonds stand cancelled. Accused-appellant Nathu Lal son of Shri Mangi Lal, who is in jail, shall be released forthwith, if not wanted in any other criminal case.Appeal allowed in part as above. *******