JUDGMENT 1. - The aforementioned appeal has been filed by appellants against their conviction and sentences as recorded by the learned Additional Sessions Judge (Fast Track) Bali District Pali in Sessions Case No. 63/2005 whereby the appellants have been convicted and sentenced as below : Accused Offence Sentence Fine In default of payment of fine 1. Chatra 148 I.P.C. 1 year's R.I. 200/- 1 month 2. Chamna 447 I.P.C. 1 month's S.I. - - 3. Perna 323 I.P.C. 3 months' S.I. - - 4. Parta 307/149 I.P.C. 5 years' R.I. 1000/- 6 months 5. Babla 302/149 I.P.C. L.I. 5000/- 1 year All the sentences have been directed to run concurrently. 2. The case came up today before the Court for consideration of the application for suspension of sentences. Looking to the short point involved in the matter and with the consent of both the parties, the appeal itself has been heard finally on merit. The counsel for the appellant has not challenged the conviction of the appellants but has submitted that the conviction of the appellants for the offence under Section 302 I.P.C. looking to the facts and circumstances of the case is illegal. 3. Briefly stated the case of the prosecution was that one Bhaga S/o Sawa Garasia (PW-6), submitted a written report (Ex.P-7) to the S.H.O., Police Station, Nana that in the morning he and his son Narayan were working in the field and tilling the maize. At that time his uncle's son Ratta was also doing the agricultural job in his own field. At about 11 a.m. Chamna S/o Sawa, Parta S/o Bada, Babu S/o Bada, Chatra S/o Sawa, Deva S/o Chatra, Mansha S/o Chatra, Pema S/o Sawa and his mother Kanku came in the field with common object to assault them armed with lathis and axe in their hands. On seeing them first informant and his son tried to run away when Chatra S/o Sawa gave axe blow on the abdomen and Chan-ma gave lathi blow to the first informant on his back when the first informant fell down, Chamna gave him a lathi blow on his abdomen and Babu, Deva caused injuries to his son Narayan by lathis. Seeing the assault, his uncle's son Ratta came to the intervene and tried to save them on which all the accused persons ran towards Ratta and inflicted injuries on his person. Ratta died on the spot. Seeing the assault, his uncle's son Ratta came to the intervene and tried to save them on which all the accused persons ran towards Ratta and inflicted injuries on his person. Ratta died on the spot. As per the first informant, his mother was exhorting the other accused to kill them and was also pelting stones. On seeing the assault on Ratta, Teji, Keli, Sankla Ram, Kastu, Bhuti Jetha also came there, who were also beaten by lathis and stones. When these persons tried to run away, they were chased up to the house of Nena with the cries, that the others would also be brought out and killed. When Manga intervened, the accused-persons ran away. After that the police came on the spot and took the injured persons to the hospital for treatment. It has been further alleged in the First Information Report that assault has been launched because of the land dispute and that previously also, some cases were going on between the parties in relation to the land in question. 4. On the basis of this report, case being F.I.R. No. 109/2005 was registered at the Police Station, Nana which has been exhibited as Ex.P-7 at the trial. 5. The injuries of the complainant party were examined. Bhaga was found to be having six injuries on his persons, one of them being by a sharp edged weapon, the other being by a blunt weapon. All the injuries were simple in nature. Kali was having four injuries and all the injuries were by blunt weapon and were simple in nature. Sankala Ram was also having four injuries on his body, all by blunt weapon and all injuries were simple in nature. Narayan was having two injuries on his body, being simple in nature. Jeta, Bhuti, Kastu were also having two simple injuries by blunt weapon. These injuries reports have been marked as Ex.P-8 to Ex.P-15 at the trial. The injuries on the persons of the accused were also examined during the course of investigation itself and two of the accused, namely, Chatra and Chamna were found to be having four injuries each on their person. The injury reports have been marked as. Ex. D-1 and Ex.D-2. The injuries on the persons of the accused were also examined during the course of investigation itself and two of the accused, namely, Chatra and Chamna were found to be having four injuries each on their person. The injury reports have been marked as. Ex. D-1 and Ex.D-2. The post-mortem on the body of Ratta was conducted on 13.7.2005 at the Government Hospital, Bhimana and as per the post-mortem report, following eight external injuries have been found on the dead body of Ratta: 1. Fracture and deformity of Rt. Shoulder (Fracture upper end of humerous) 2. Bruise with swelling present around Rt. Nipple and costal margin. 3. Incised wound 1 x 2 cm x skin deep Rt. Elbow (posteriorly) 4. Abrasion 1x 1/2cm It Axilla 5. Multiple Abrasion (Total 3) 1x1 cm on anterior aspect of middle part of Rt. Leg. 6. Abrasion 1x1 It. Knee 7. Incised wound 4x1 cm with diffuse swelling on left ear in pinna through and through cut 8. Bruise 2 x 2 cm with diffuse swelling on bridge of the nose. 6. The scalp, skull and vertebrae were found to be healthy and so also the brain and Spinal Cord. However, a subdural haematoma was found in base of skull. The cause of death of Ratta, as per the medical officer was that the death was on account of haemorrhagic shock due. to injury to liver and associated head injury which was sufficient to cause death. 7. The accused persons were arrested and as is usual, weapons of offences were, i.e. axe and lathis were recovered at the instance of the accused persons. At the conclusion of the investigation, the prosecution chose to submit a charge-sheet in the Court of the Judicial Magistrate, First Class, Bali against five persons, namely, Chatra, Perna, Chamna, Parta and Babu @ Babla out of the eight named in the F.I.R. The case was committed to the Court of Addl. Sessions Judge (Fast Track) Bali for trial. Charges were framed against the accused persons for the offences under Sections 148, 447 I.P.C. 302 and in alternative, 302/149 I.P.C., 307/149 I.P.C. and Section 323 and in the alternative under Section 323/149 I.P.C. and Section 336 and in alternative under Section 336/149 I.P.C. The accused persons pleaded not guilty and claimed trial. 8. At the trial, the prosecution examined as many as 17 witnesses in support of its case. 8. At the trial, the prosecution examined as many as 17 witnesses in support of its case. The accused persons in their statements under Section 313, Cr.P.C denied the allegations of the prosecution and Chatra desired to produce witness in defence but did not choose to do so despite being provided with opportunities. Since at the time of final hearing of the appeal, the counsel for the appellant has not chosen to challenge the conviction of the appellants and has not disputed the occurrence, the matter is considered as regards the nature of the offence which has been committed by the accused persons. For the purpose of the appreciation, the medical evidence assumes importance. The doctor who conducted the port-mortem examination on the deceased Ratta is Dr. Warish Hussain Siddiqui (PW-16) and as per the doctor, the cause of Ratta was injuries to liver and brain and the corresponding harmorrhagic shock. It is relevant to mention here that though the doctor has opined that the cause of death is haemorrhage shock but in the post-mortem report Ex.P-33, no significant haemorrhage has been noted except for some haemorrhage on account rupture of liver. It is relevant to mention here that the doctor has admitted that there was no external injury on liver of the deceased. The doctor has also opined in post-mortem report Ex.P-33 that the skull and brain of the deceased were found to be healthy. It is also relevant to mention here that the injuries of the other injured persons were examined by Dr. Mahendra Kumar Tailor (PW-7) and he in his testimony has not stated that any of the injuries on the injured persons were grievous in nature or were endangering the life of the injured. All the injuries have been opined to be simple in nature. Two of the accused persons have also suffered injuries in the same occurrence. 9. As per the prosecution witnesses, the incident has taken place on account of a dispute over the possession of the field in question and even the mother of the first informant was arrayed as an accused in the First Information Report. Ratta who died in this incident is said to be an intervener in the incident. 9. As per the prosecution witnesses, the incident has taken place on account of a dispute over the possession of the field in question and even the mother of the first informant was arrayed as an accused in the First Information Report. Ratta who died in this incident is said to be an intervener in the incident. In view thereof, it is apparent that even if prosecution story is accepted in its totality, admittedly, the accused persons had gone to assault the first informant and his companions who were working in the field in question, and that they had no cause to assault the deceased. The deceased Ratta happened to be simply an intervener in the incident. It appears that he has received the injuries resulting in his death while intervening to stop the assault on the first informant. The prosecution witnesses have also denied that the accused persons received any injury in the incident but as has-en noted above, two accused-persons were having four injuries each on their persons. In these circumstances, it appears that the prosecution is guilty of suppressing the genesis of the occurrence in this case. The incident has taken place in the agricultural field that too over dispute of possession by each of the parties on the field in question. Three of the accused persons who were originally named in the First Information Report and including the mother of the first informant was in the First Information Report have not even been charged sheeted. In these circumstances, and particularly looking to the fact that there was no external injury on the abdomen of deceased Ratta and also looking to the fact that there was no enmity between accused persons and the deceased, it cannot be concluded that the accused persons intended to cause death of Ratta or that they had knowledge that the injuries which they are inflicting could result into his death. In this view of matter, we feel that the conviction for the offence under Sections 302/149 and 307/149 cannot be sustained, instead we convert the conviction of the appellants from the office under Section 302 to one under Section 304 Part II, I.P.C. We also acquit the accused from the charges under Section 307/149 I.P.C. The accused Chatra and Chan-ma have remained in custody since 13.7.2005 and other accused persons, namely, Perna, Parta and Babla @ Babu have remained in custody from 29.8.2005 Thus they have remained in custody for a period of nearly 6 years. 10. Thus, we partly allow the appeal preferred by the appellants. The conviction of the appellants for the offence under Section 307/149 I.P.C. is set aside, instead they are convicted for the offence under Section 324/149 I.P.C. and sentenced to rigorous imprisonment for a period of one year and a fine of Rs. 500/- each and in default of payment of fine to further undergo one month's simple imprisonment. The conviction of the appellants for the offence under Section 302/149 is also set aside and instead each of the appellants is convicted for the offence under Section 304 Part II read with Section 149, I.P.C. and are sentenced to the period already undergone by them, in addition to fine of Rs. 5000/- each and in default of payment of fine, to further undergo three month's simple imprisonment. The amount of fine, if realized, shall be paid to the legal heirs of the deceased. The appellants shall be set at liberty forth with on payment of fine, if not required in any other case.Appeal partly allowed. *******