JUDGMENT 1. - Heard the learned counsel for the appellants as well as learned Public Prosecutor.This appeal under Section 374 (2) Cr.P.C. is preferred to question the correctness of the judgment dated 30.10.2004 passed by the learned Additional Sessions Judge, Fast Track No. 2, Bhilwara in Sessions Case No. 2/2004, State v. Kaloo & Anr. , convicting the appellant-accused Kaloo S/o Magna Kharol for the offence punishable under Section 302 I.P.C. and accused-appellant Bhagirath Bhaggu S/o Magna Kharol for offence under Section 302 read with Section 34 I.P.C. and each of the accused-appellants has been sentenced to undergo life imprisonment, along with fine of Rs. 5000/-, in default of payment whereof to further undergo 3 months' simple imprisonment. 2. In brief, the facts of the case are that on 25.10.2003 PW-8 Surajmal lodged a written report (Ex.P-6) before SHO, Bagor (PW-11) against accused-appellants Bhagirath S/o Magna and Kaloo S/o Magna, inter alia, alleging that during the day at about 2 PM his son Gautam, aged 32 years, was going for 'darshan' of Mataji on his motorcycle then on the way, near Luharon-ka-Kuan (Well) of Bheelon-ka-Kheda aforesaid accused persons chased him out of enmity on another motorcycle, they intercepted his son and started beating him with lathis. Then Gehru S/o Nathu and Kalu S/o Rama rushed and intervened and rescued his son. The accused persons ran way assuming Gautam as dead. Gehru and Kalu have brought his son Gautam to Bagor hospital and he has come to report Police. 3. Upon this written complaint, SHO, Bagor registered F.I.R. No. 120/2003 (Ex.P-7) for offence under Sections 323, 341 I.P.C. Later, due to death of Gautam, offence under Section 302 I.P.C. was also added. During investigation, site inspection (Ex.P-1) was made, panchnama of dead body was conducted. Accused-appellant Kaloo and Bhagirath were arrested vide Exs.P-14 and P-15 on 25.10.2003. Lathi (Ex.P-4) was recovered on the basis of information by Kaloo (Ex.P-16) and motorcycle (Ex.P-3) was recovered on the basis of information given by Bhagirath (Ex.P-17). Injury report (Ex.P-21) and post-mortem report (Ex.P-22) of deceased Gautam were also obtained and thereafter, challan for offence under Sections 302, 120B I.P.C. was filed on 9.12.2003 before the Judicial Magistrate, Mandal. The case was committed to the Court of Sessions and ultimately, trial was made by learned Addl. Sessions Judge (FT) No. 2, Bhilwara. 4. Injury report (Ex.P-21) and post-mortem report (Ex.P-22) of deceased Gautam were also obtained and thereafter, challan for offence under Sections 302, 120B I.P.C. was filed on 9.12.2003 before the Judicial Magistrate, Mandal. The case was committed to the Court of Sessions and ultimately, trial was made by learned Addl. Sessions Judge (FT) No. 2, Bhilwara. 4. Learned trial Judge framed charge under Section 302 I.P.C. against accused-appellant Kaloo S/o Magna and under Section 302/34 I.P.C. against accused-appellant Bhagirath S/o Magna. The accused-appellants denied the charges and claimed trial. 5. During the trial, the prosecution supported its case by producing 21 witnesses and exhibiting 25 documents. In their statements recorded under Section 313 Cr.P.C., the accused-appellant negated the prosecution evidence and contended that they have been falsely implicated out of enmity and they did not murder Gautam. In their evidence, DW-1 Kaloo was examined and in documentary evidence, Police statement of Bheru Lal (Ex.D-1), Police statement of Bhanwar Lal (Ex.D-2) and Police statement of Lalit (Ex.D-3) were adduced by the accused-appellants. 6. The learned Additional Sessions Judge, while relying upon testimony of the prosecution witnesses, convicted and sentenced the accused-appellants, in the terms mentioned herein above, vide impugned judgment dated 30.10.2004. Aggrieved thereby, present appeal has been filed. 7. In the appeal, it is submitted by the learned counsel for the accused-appellants that the trial Court has erred in relying upon statements of the prosecution witnesses and convicting the accused-appellants for offence punishable under Sections 302 and 302/34 I.P.C. through essential ingredients constituting such offence are not established. It is contended that the learned trial Judge has not scrutinised prosecution evidence in its true perspective. 8. Learned counsel for the accused-appellants further contended that there is absolutely no evidence or said common intention on the part of accused-appellant Bhagirath. In fact, there was a collision between vehicles and it is not a case of assault, as alleged. 9. It is also contended by learned counsel for the accused-appellant that the prosecution story has changed and modified but none of version could be corroborated by any evidence. In fact, there was a collision between vehicles and it is not a case of assault, as alleged. 9. It is also contended by learned counsel for the accused-appellant that the prosecution story has changed and modified but none of version could be corroborated by any evidence. In F.I.R. version, it was propounded that the deceased was obstructed and then gave beating; the version put forth upon investigation is that the deceased was given beating while the vehicles were running and then there is third version, propounding that after beating was given to deceased, he lost balance on motorcycle, went on the motorcycle for about 75' (or 75 m) away from that point and then fell on the ground. All these versions are inconsistent and contradictory to prosecution evidence and cannot be believed. 10. Learned counsel for the accused-appellant submitted that, in fact, the material on the record belies prosecution case of assault and on the contrary, probablises occurrence of collision. It is contended that damage condition of recovered motorcycle RJ-06-8M-0405 clearly indicates that the damage is caused by head-on collision of two motorcycles. Further absence of external injuries on the person of the deceased but injuries on right side of his body makes it crystal clear that it was not a case of homicide but collision of vehicles. It is further contended that if alleged assault would have taken place, the deceased could not have driven the motorcycle for distance of 75' (75 m). Only probability fortified from evidence on the record is that due to collision the deceased lost balance on motorcycle, drove further and then fell on the ground. 11. As regard accused-appellant Bhagirath, learned counsel contended that there is no evidence to show that Bhagirath shared any common intention with accused-appellant Kaloo. The accused-appellant was unarmed and he did not give any beating to deceased Gautam. No premeditation, meeting of minds or pre-concert is established between accused-appellants Bhagirath and Kaloo. It is contended that, in fact, the day of incident was Dipawali and both were going to Mataji temple on the motorcycle. Had there been any common intention, Bhagirath would not go unarmed. It is also contended that there is no other evidence to connect accused-appellant Bhagirath with alleged offence under Section 302 I.P.C. and sharing of said common intention is totally missing. 12. Had there been any common intention, Bhagirath would not go unarmed. It is also contended that there is no other evidence to connect accused-appellant Bhagirath with alleged offence under Section 302 I.P.C. and sharing of said common intention is totally missing. 12. The learned counsel for the accused-appellants further submitted that witnesses of the prosecution could not be relied on, there have been contradictions and their testimony also does not substantiate the prosecution version vis-a-vis position on the record. It is contended that the alleged eye-witnesses Gehru Lal (PW-1), in fact, is not an eye-witness. He is close friend of the deceased. As per his evidence, accused-appellant assaulted deceased when both motorcycles were running along side and then deceased fell down while the site-plan (Ex.P-1) shows deceased was dragged along his motorcycle, which could only by losing balance due to collision or otherwise. 13. As regard witness PW-2 Kahl Bhil, it is contended that he is employee of Gehru Lal (PW-2). Other witnesses Bheru Lal (PW-3), Bhanwar Lal (PW-4) and Lalit (PW-5) are brothers of the deceased. Similarly, PW-7 Gopal and PW-8 Surajmal are witnesses of quarrel that took place earlier. In that incident of quarrel, nothing happened, no report was lodged and no injury was caused by the accused to the deceased. The reason of quarrel is also not given and no charge is framed for that incident. This quarrel cannot be said to be motive. This evidence only reveals that the deceased, two witnesses and both the accused persons had gone on their respective motorcycles for 'darshans' to Mataji temple as it was Diwali day. 14. Learned counsel for the accused-appellant also contended that no alleged offence is made out from the evidence on the record. The F.I.R. reveals that it is registered for offence under Sections 323, 341, I.P.C. and the Doctor specifically stated that the injury on the head, which has caused fracture, can not be caused by single lathi blow. The Doctor also stated that if blunt weapon is used, there is likelihood of hair of the deceased coming out of the roots, which was not found in the present case. There are inconsistencies between the medical evidence and the ocular evidence. 15. The Doctor also stated that if blunt weapon is used, there is likelihood of hair of the deceased coming out of the roots, which was not found in the present case. There are inconsistencies between the medical evidence and the ocular evidence. 15. It is also contended that learned lower Court has opined that the injuries on other parts of the body, other than head, have been sustained when the deceased fell down from the motorcycle and thus, the possibility of head injury being caused due to fall from motorcycle is not ruled out. 16. The learned counsel for the accused-appellants further contended that the prosecution has failed to establish motive and common intention of the accused-appellants committing the alleged offence. It is further contended by the learned counsel for accused-appellants that the accused persons had not taken any undue advantage or acted in a cruel manner and there was no premeditation and therefore, the impugned conviction of the accused-appellants is liable to be set aside. The act of the accused-appellants does not travel beyond the scope of offence punishable under Section 325 or Section 304 Part II I.P.C. 17. While opposing the appeal, learned Public Prosecutor supported the impugned judgment passed by learned Additional Sessions Judge and submitted that there is no reason to disbelieve the prosecution evidence. Learned trial Judge has elaborately considered each of the prosecution and defence evidence and rightly convicted and sentenced the accused-appellants for offence under Sections 302 and 302/34 I.P.C. 18. We have given our thoughtful consideration to the submissions made by the learned counsel for rival parties and have carefully perused the evidence on record available before us. Each case is to be considered on its own facts. However, taking holistic view of the matter, in such a case entire attending circumstances must be taken into consideration in order to find out the nature of the actual offence committed. 19. The learned Additional Sessions Judge has elaborately discussed the testimony of the prosecution witnesses. While considering the evidence on record, it was observed that according to PW-12 Dr. Anil Lahoti injuries No. 2 and 3 on the head of deceased Gautam could be due lathi blow, if the deceased would have bent down at the time of infliction of the blow and as per PW-21 Dr. While considering the evidence on record, it was observed that according to PW-12 Dr. Anil Lahoti injuries No. 2 and 3 on the head of deceased Gautam could be due lathi blow, if the deceased would have bent down at the time of infliction of the blow and as per PW-21 Dr. Anees Ahmed, who conducted post-mortem, the cause of death was injuries sustained by the deceased on head, which were sufficient to cause death in the ordinary course of nature. The evidence of both Doctors clearly show that the injuries No. 2 and 3 were ante-mortem in nature and caused death of the deceased. It was also observed that earlier in the day, there was quarrel between Bhagirath and deceased Gautam near Chandraas Bus Stand and then Bhagirath took his brother Kaloo with him and they chased Gautam on motorcycle. On the basis of facts, circumstances and the evidence on record, learned Additional Sessions Judge concluded that accused-appellant Bhagirath was driving the motorcycle while accused-appellant Kaloo was riding on rear seat, having lathi in his hand and he inflicted blow on the head of deceased Gautam with intention to kill him. 20. In our opinion, in the instant case only one lathi blow has been caused by accused Kaloo and this fact is corroborated by the testimony of prosecution witnesses as well as medical evidence on the record. All the ingredients of exception under Section 300 I.P.C. are found present. As per prosecution evidence, the incident took place suddenly when deceased Gautam, the witnesses and the accused persons were going on their motorcycles for 'darshan' to Mataji temple as it was Diwali day. Moreover, upon scrutiny of the evidence on the record in its entirety, it appears that the act of the accused-appellants was sudden and without pre-meditation. 21. There is no evidence to suggest that the accused appellants had taken any undue advantage of the situation. Moreover, a single lathi blow by accused-appellant Kaloo on the head of deceased Gautam has resulted in his death. In our opinion, the injury sustained by the deceased was not of such a higher degree, which could be said to be an injury, in all probabilities, sufficient to cause death. Therefore, it cannot be said that the accused-appellants acted in a cruel manner. The accused-appellant Kaloo had a bamboo stick (lathi) in his hand, which illagers used to carry. In our opinion, the injury sustained by the deceased was not of such a higher degree, which could be said to be an injury, in all probabilities, sufficient to cause death. Therefore, it cannot be said that the accused-appellants acted in a cruel manner. The accused-appellant Kaloo had a bamboo stick (lathi) in his hand, which illagers used to carry. Thus, taking an over-all view of the situation, it would of be appropriate to hold the accused-appellants guilty of committing offence rider Section 302 I.P.C. 22. The act of the accused-appellants is established on the basis of kstimony of the prosecution witnesses and as per medical evidence, the injuries (offered by the deceased were sufficient to cause death in the ordinary course of nature. By the facts, evidence available on the record and the circumstances of he case, it cannot be said that death of Gautam was caused by doing an act, with intention to cause death but the accused-appellants did know that the injuries are likely to cause death. 23. In such circumstances, we do not find anything wrong in the findings riven by the trial Court to the extent of involvement of the accused-appellant in he crime. The only question requiring consideration is that whether the act of he accused-appellant amounts to murder, punishable under Section 302 I.P.C. or constitutes an offence other than that. We, however, feel that a case under section 302 I.P.C. is not spelt out. From the facts and evidence available on the record, we are of the view that death of the deceased due to injuries caused by he accused-appellants constitutes culpable homicide, not amounting to murder and punishable under Section 304. 24. From the evidence available on record we find that the occurrence vas without premeditation or pre-plan. The weapon (lathi) used is, in fact, normally carried by villagers and this does not reflect any prior intention on the part of accused-appellants to commit murder. The accused-appellant inflicted 3odily injuries upon deceased Gautam, which were of such nature that they were likely to cause death. There can be no doubt that the accused-appellants intended to cause and did cause the injuries and therefore, they are liable to be punished under Part-I of Section 304 of the Indian Penal Code. 25. The accused-appellant inflicted 3odily injuries upon deceased Gautam, which were of such nature that they were likely to cause death. There can be no doubt that the accused-appellants intended to cause and did cause the injuries and therefore, they are liable to be punished under Part-I of Section 304 of the Indian Penal Code. 25. Hon'ble Apex Court in Jagriti Devi v. State of H.P., AIR 2009 SC 2869 enunciated the principles that Section 300 I.P.C. provides for the exception, which will constitute culpable homicide, not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part-I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part-II of the Indian Penal Code. Hence, looking to the facts and circumstances of this case, the act of the accused-appellants falls within the purview of offence punishable under Section 304 Part-I read with Section 34. I.P.C. 26. In view of the above, while disposing of this appeal, we modify conviction of the accused-appellant Kaloo S/o Magna to be under Section 304 Part-I I.P.C. instead of Section 302 I.P.C. and conviction of accused-appellant Bhagirath S/o Magna to be under Section 304/34 Part-I I.P.C. instead of under Section 302/34 I.P.C. 27. As regard sentence, we are informed by the learned counsel for the accused-appellants that both the accused-appellants have been in jail right since their arrest on 25.10.200. In that view of the matter, we consider that sentence for the period of imprisonment already undergone by the accused persons would be sufficient to meet the ends of justice. 28. Accordingly, the appeal of the accused-appellants is partly allowed in the aforesaid terms.Appeal partly allowed. *******