JUDGMENT 1. - This appeal is directed against the judgment dated 30.6.2008 passed by the learned Sessions Judge, Hanumangarh in Sessions Case No. 70/2005 whereby the learned Sessions Judge, Hanumangarh has convicted and sentenced the appellants as under : Vishnu and Mukesh Section 304(I) I.P.C. read with Section 149 I.P.C. - 10 years' R.I. Indrapal, Vijay Pal, Balram and Kristian Lal Section 304(I) I.P.C. read with Section 149 I.P.C. - 5 years' R.I. Section 148 I.P.C. - Fine of Rs. 5,000/- each, in default of payment of fine to undergo 50 days' additional R.I. 2. The facts of the case as set up by the prosecution are that on 4.5.2005, Sunil S/o Pema Ram lodged a written report at the Police Station, Goluwala alleging inter alia that his field is situated near the field of Vijaypal and the disputes are pending between them. On 4.5.2005, in the morning, at about 7 O'clock, his mother Savitri Devi was going to Chak 23 MOD from her Dhani. When she reached near the field of Gopi Ram Dharniya at Dhori Khala, at that time, his neighbours Vijay Pal, Sahab Ram, Indra Pal, Subhash, Bholu Ram, Krishan Lal, Balram and Shiv Lal came there and started beating Savitri Devi with lathis. It was further alleged that when the complainant Sunil had seen the accused persons running behind his mother, he along with his sister Maya and father Pema Ram rushed towards the place of incident on a tractor. When they reached there, they saw Shiv Lal having Gandasi, Vijay Pal having Favra and others were having lathis. All of them were beating his mother. On account of beatings given by accused persons, her mother fell down. It was further alleged that on account of fear, they did not go near Savitri Devi. His mother has died of beatings given by the accused persons and the dead body of his mother is lying at the place of occurrence. 3. On this report, a case for offences under Sections 302, 323, 341, 147, 148 and 149 I.P.C. was registered and investigation commenced. 4. After investigation, the police filed challan against the accused appellants for offences under Sections 148, 302, 302/149, 341 and 323 I.P.C. 5. Charges were framed against the appellants for offences under Sections 302, 341, 323, 143 and 149 I.P.C. who pleaded not guilty and claimed trial. 6. 4. After investigation, the police filed challan against the accused appellants for offences under Sections 148, 302, 302/149, 341 and 323 I.P.C. 5. Charges were framed against the appellants for offences under Sections 302, 341, 323, 143 and 149 I.P.C. who pleaded not guilty and claimed trial. 6. At the trial, the prosecution examined as many as 20 witnesses in support of its case. The accused appellants in their statements under Section 313 Cr.P.C. denied the allegations levelled by the prosecution, but did not choose to examine any witness in defence. 7. At the conclusion of trial, the learned trial Court vide judgment and order dated 3.6.2008 convicted and sentenced the appellants as above. 8. Before proceeding further, it is expedient to have a look at the injuries received by the deceased Savitri Devi. As per the post mortem report (Ex.P-27), the deceased Savitri Devi had following injuries : (1) Bruise - 4 x 1 cm. on left infra scapular area of back. (2) Bruise and abrasion - multiple - 1 x .5 cm to 2 x 1 cm on both buttocks. (3) Bruise - 3 x 1 cm on middle part of back. Wound on upper limb (4) Bruise - 3 x 1 cm post lat. Surface of lower arm. (5) Fracture - lower end of humors. (6) Lacerated wound - 4 x 1 cm x deep bone with fracture of fore arm bone - on lower end of forearm. Wound on left upper limb (7) Lacerated wound 1 x .5 x .5 cm - post lat. surface of arm. (8) Fracture of forearm bone at wrist joint. (9) Lacerated wound - 2 x 1 cm x bone deep - on lower end of forearm. Wound on Rt. lower limb (10) Bruise with swelling -.10 x 4 cm - on right thigh middle. (11} Fracture of middle of Rt. femur bone with haematoma (12) Lacerated wound - 4 x 1 cm x bone deep - on anti surface of middle part of leg. (13) Fracture of Rt. lebia Wound on left lower limb (14) Bruise - 4 x 3 cm. on ant. surface lower end of thigh. (15) Fracture of lower end of femur. (16) Lacerated wound - 4 x 1 x bone deep with fracture of leg bone (lebia). 9. The learned counsel for the appellants, Mr. H.S.S. Kharlia, Sr. Advocate assisted by Mr. lebia Wound on left lower limb (14) Bruise - 4 x 3 cm. on ant. surface lower end of thigh. (15) Fracture of lower end of femur. (16) Lacerated wound - 4 x 1 x bone deep with fracture of leg bone (lebia). 9. The learned counsel for the appellants, Mr. H.S.S. Kharlia, Sr. Advocate assisted by Mr. S.S. Dhillon urged that the conviction of the appellants No. 1 and 2 (Vishnu Dutt and Mukesh Kumar) has been based solely on the basis of statement of PW-5 Sunil Kumar son of deceased Savitri Devi, whereas the statement of PW-6 Maya daughter of deceased Savitri Devi and PW-7 Perna Ram, husband of the deceased who also claimed to be eye-witnesses, have not been believed by the learned trial Court. As per the version given by PW-5 Sunil Kumar, all these three persons upon being informed by PW-1 Dilip, who turned hostile, went towards the site on their tractor and upon being stopped by other co-accused persons, Inder Pal, Vijay Pal, Bal Ram and Krishan Lal returned back and went to the place of Chimna Ram in nearby village Hardayalpura from where they made telephonical call to the police and with the police again, they reached the site in question, therefore, looking to the distance of approximately 5 murabba or 1 and 2 kms., the said PW-5 Sunil Kumar, who claimed to be eye-witness also, could not have seen the appellants No. 1 and 2 Vishnu Dutt and Mukesh Kumar killing his mother Savitri Devi with lathis from a distance of about 2 murabbas and that too being on the other side of the water course, which was of the height of about 8-9 ft. and therefore, his evidence was also not trustworthy as held by the learned trial Court and in view of previous enmity between the complainant and the accused persons, the appellants have been falsely implicated. and therefore, his evidence was also not trustworthy as held by the learned trial Court and in view of previous enmity between the complainant and the accused persons, the appellants have been falsely implicated. He also urged that other prosecution witnesses have on the other hand, clearly stated before the learned trial Court like PW-9 Raja Ram and PW-10 Kishore Kumar that on account of dispute between Pema Ram and son of his first wife, Rai Saheb since Perna Ram wanted to give portion of his land to the said son of his first wife Rai Saheb, but the deceased Savitri Devi, the second wife did not permit it to be given and therefore, it is the said son of first wife, Rai Saheb, who might have caused the said injuries resulting into death of deceased Savitri Devi. He also submitted that the learned trial Court has erred in convicting the appellants No. 1 and 2 Vishnu Dutt and Mukesh Kumar under Section 304 Part I I.P.C. and awarding sentence of 10 years' R.I., whereas the other appellants Inderpal, Vijay Pal, Balram and Krishan Lal have been sentenced to only 5 years for offence under Section 304 Part I I.P.C. with the aid of Section 149 I.P.C., therefore, the appellants No. 1 and 2 were also required to be given the same treatment as appellants No. 3 to 6. He while, praying for acquittal of all the accused-appellants, in the alternative submitted that conviction of the appellants could not travel beyond Section 325/149 I.P.C. and for this purpose he relied upon the decision of the Hon'ble Supreme Court in the case of Purusuraman alias Velladurai & Ors. v. State of Tamilnadu, reported in 1992 SCC (Cri.) 1292 and decision of this Court in the case of Jaganath & Ors. v. State of Rajasthan, reported in 2001 (1) R.Cr.D. 49 (Raj.) . He, therefore prayed in the alternative that while upholding the conviction under Section 325/149 I.P.C., the period of sentence may be reduced to the period of imprisonment already suffered by these appellants, which is given above. 10. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant Mr. He, therefore prayed in the alternative that while upholding the conviction under Section 325/149 I.P.C., the period of sentence may be reduced to the period of imprisonment already suffered by these appellants, which is given above. 10. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant Mr. M.K. Garg opposed the submissions made by the learned counsel for the appellants and submitted that despite PW-1 Dilip having turned hostile, the statement of PW-5 Sunil, PW-6 Maya, and PW-7 Pema Ram were consistent and trustworthy and they had clearly stated that the appellants No. 1 and 2 gave beating with lathis to Savitri Devi, who died as a result of various injuries as per the post mortem report quoted above and therefore, the conviction of the appellants is justified and deserves to be upheld. They also opposed the reduction of period of sentence as prayed by the learned counsel for the appellants. 11. Having heard the learned counsel for the parties and having gone through the record of the case, this Court is of the opinion that the statement PW- 5 Sunil son of the deceased cannot be said to be unstrustworthy. He and two other family members PW-6 Maya and PW-7 Pema Ram immediately rushed to the site on their tractor, but were blocked by the appellants No. 3 to 6 on the way at Pulia of Water Course as stated by the PW-5 in his statement and they were threatened to go back, otherwise they would also be killed, but in the process PW-5 Sunil as well as other two family members had seen the appellants No. and 2 giving beating with lathis to the deceased Savitri Devi. Though PW-.5 Sunil, PW-6 Maya and PW-7 Pema Ram who have consistently said in their statements that they first went towards the site upon being informed by PW-1 Dilip, where they saw the accused appellants giving beating to Savitri Devi, but since Indrapal, Bal Ram and Krishan Lal ran after them and prevented them from reaching the site, thus, they took back their tractor and went to the place of Chimna Ram in nearby Dhani of Hardayalpura, where they called the police and along with the police they reached back the side, but the learned trial Court has not chosen to rely upon the statements of PW-6 Maya and PW-7 Pema Ram on the ground that they had improved their statements given under Section 161 Cr.P.C. in the Court statement. However, the learned trial Court found that PW-5 1 Sunil had withstood the cross-examination and therefore, upon his evidence, the conviction of the appellants as aforesaid was made. 12. Upon appreciation of aforesaid evidence, and looking to the number of injuries and statements of eye-witnesses, this Court is of the opinion that in place of Section 304 Part I I.P.C., the appellants No. 1 and 2 are liable to be convicted for offences under Sections 304 Part II I.P.C. From the evidence available on record, including the statements of all the three eye-witnesses, PW-5 Sunil, PW-6 Maya and PW-7 Pema Ram, who have categorically stated having seen both these appellants Vishnu and Mukesh beating Savitri Devi with lathis, it is established, the said act was done by the accused persons with the knowledge that it is likely to cause death, but without any intention to cause death, therefore, the conviction of the appellants No. 1 and 2 for offence under Section 304 Part I I.P.C. is altered to Section 304 Part II I.P.C. read with Section 149 I.P.C. However, other four appellants, though available at the site were not seen by any of the eye-witnesses giving the actual beating to Savitri Devi, therefore, their conviction cannot be more than 325 I.P.C. 13. The appellants have remained in custody as under : Name of the appellants During trial Approx. months in custody From To Vishnu Dutt, App. No. 1 26.5.2005 21.11.2005 6 months Mukesh Kumar, App. No. 2 26.5.2005 21.11.2005 6 months Inderpal, App. The appellants have remained in custody as under : Name of the appellants During trial Approx. months in custody From To Vishnu Dutt, App. No. 1 26.5.2005 21.11.2005 6 months Mukesh Kumar, App. No. 2 26.5.2005 21.11.2005 6 months Inderpal, App. No. 3 13.6.2005 12.11.2005 5 months Vijay Pal, Appellant No. 4 13.6.2005 26.10.2005 4½ months Balram, Appellant No. 5 13.6.2005 12.11.2005 5 months Krishan Lal, App. No. 6 14.6.2005 12.11.2005 5 months Vishnu Dutt, App. No. 1 30.6.2008 till date 3 years and 3 months Mukesh Kumar, App. No. 2 30.6.2008 till date 3 years and 3 months Inderpal, App. No. 3 30.6.2008 8.7.2008 5 months and 8 days Vijay Pal, App. No. 4 30.6.2008 8.7.2008 5 months and 8 days Balram, App. No. 5 30.6.2008 8.7.2008 5 months and 8 days Krishan Lal, App. No. 6 30.6.2008 8.7.2008 5 months and 8 days 14. The appellants No. 1 Vishnu Dutt and Mukesh Kumar are now in custody since the date of impugned judgment i.e. 30.6.2008 and the appellants No. 3 to 6 were arrested on 30.6.2008 and their sentence were suspended by this Court vide order dated 8.7.2008.15. On the question of sentence, looking to the young age of the accused appellants No. 1 and 2 in their 20's and since they caused injuries to the deceased, they are sentenced to 4 years' R.I. for offence under Section 304 Part II I.P.C. read with Section 149 I.P.C. However, the fine imposed by the learned trial Court is maintained, which if not deposited, the appellants shall further undergo ' imprisonment of 50 days' R.I. The appellants No. 3 to 6, namely, Inderpal, Vijaypal, Balram and Krishan Lal are convicted under Section 325 I.P.C. and their period of sentence is reduced to the period of imprisonment already undergone by them. They need not surrender back now.16. Accordingly, this appeal is partly allowed and the conviction of the appellants No. 1 and 2 for offence under Section 304 Part I I.P.C. read with Section 149 I.P.C. is altered to Section 304 Part II I.P.C. read with Section 149 I.P.C. The accused-appellants No. 1 and 2 are sentenced to 4 years' R.I. in place of 10 years' R.I. and the accused appellants No. 3 to 6, namely, Inderpal, Vijaypal, Balram and Krishan Lal are convicted under Section 325 I.P.C. and sentenced to the period already undergone by them. The conviction and sentence for offence under Section 148 I.P.C. is maintained. The accused appellant No. 1 Vishnu Dutt and appellant No. 2 Mukesh Kumar be released after undergoing the sentence as modified above.Appeal partly allowed. *******