Judgment : Sudhanshu Dhulia, J. (Oral) 1. This appeal arises out of a judgment and order dated 17.6.2003 passed by the learned Sessions Judge, Chamoli in Sessions Trial No. 5 of 1998, by which trial court has convicted the present appellants, namely Hari Singh, Raje Singh, Gopal Singh and Autar Singh under Sections 302 and 323 read with Section 34 of Indian Penal Code, 1860 (from hereinafter referred to as IPC). Each one of the above four convicts has been sentenced to imprisonment for life under Section 302 read with Section 34 of IPC, six months rigorous imprisonment under Section 323 of IPC and fine of 5,000/- each, and default in payment of fine further rigorous imprisonment for six months. 2. Heard Mr. Dinesh Chauhan, Advocate for the appellants and Mr. Hari Om Bhakuni, Brief Holder for the State. 3. Brief facts of the case as per the First Information Report lodged on 22.11.1997 before Patwari, Brit Panti District Chamoli by the complainant Soban Singh, are that on 21.11.1997 when the complainant and his brother-in-law Gaje Singh (deceased) were going in the night at about 10.30 pm to answer the call of nature, the stones were thrown at them and thereafter accused-appellants, namely, Raje Singh, Hari Singh, Gopal Singh, Autar Singh and Kalam Singh attacked them with stones and “Danda” and as a consequent of which Gaje Singh fell down and complainant (Soban Singh) himself received injuries on his body. Gaje Singh, while being taken to the hospital next day passed away. 4. At this juncture, it must be stated here that this matter relates to the hills of Uttarakhand, where the “Patwari” who is the revenue officer is also empowered under the law with police powers. Therefore FIR was lodged with Patwari at Brit Panti who conducted the investigation and thereafter filed a charge-sheet. Consequently, the “Patwari” was informed about the incident which was in the night and, as it is reveled by witnesses later, the event is about 9.30 pm to 10.30 pm, Soban Singh as well as the other injured Gaje Singh (deceased) were brought to their house and subsequently on the next day Gaje Singh, who was seriously injured was being taken to the hospital passed away on his way to the hospital. The post mortem was conducted on the body of Gaje Singh (deceased) on 23.11.1997 at about 4 pm by Dr. Mayank Upadhyay (PW2). The post mortem was conducted on the body of Gaje Singh (deceased) on 23.11.1997 at about 4 pm by Dr. Mayank Upadhyay (PW2). Apart from this, injured complainant (Soban Singh) was medically examined on 23.11.1997 by Dr. L. S. Singh (PW4). The post mortem report of the injured shall be discussed in the following paragraphs. The fact of the matter is that the Patwari was informed about the incident on 22.11.1997. He lodged an FIR on 23.11.1997 and thereafter prepares an inquest report. Consequently, after the investigation, he filed a charge-sheet before the Chief Judicial Magistrate, Chamoli, which is committed to the Sessions Judge, Chamoli on 9.2.1998 for trial. Thereafter charges were framed against the accused, namely, Raje Singh, Hari Singh, Gopal Singh, Autar Singh and Kalam Singh on 25.5.1999 under Sections 302 and 323 read with Sections 147 and 149 IPC. Later the case was committed to sessions for trial. 5. The prosecution in all examined seven witnesses. Apart from seven witnesses examined by the prosecution the court examined another four witnesses, which should be called as court witnesses no.1 to no.4. The first witness of prosecution was (PW1) Soban Singh, who was the complainant who is also an injured eye-witness to the incident. According to him, the deceased was the husband of his sister i.e. his brother-in-law. Both were staying in the same village. Only a day prior to the incident i.e. 20.11.1997 his daughter, who was aged about 2-2½ years, died and the comments of the accused persons, who were the neighbours, were that “Achha Hua Sale Ki Ladki Marr Gaii”. He further relates to the incident that on 21.11.1997 at about 10.30 pm, when he was going to answer the call of nature along with Gaje Singh (deceased) some people started throwing stones at them. When the complainant (Soban Singh) shouted, Raje Singh Hari Singh Gopal Singh Kamal Singh Autar Singh appeared and started abusing these two persons. These assailants were armed with “Dandas” and stones. These people started hitting the complainant (Soban Singh) as well as Gaje Singh (deceased). The complainant further specifically states that Hari Singh had hit them with his “Danda”, as a result of which, he fell unconscious. Meanwhile, Gaje Singh, who came to his rescue, was also being hit by these assailants continuously. Thereafter some people of the village rescued them and took them to their house. The complainant further specifically states that Hari Singh had hit them with his “Danda”, as a result of which, he fell unconscious. Meanwhile, Gaje Singh, who came to his rescue, was also being hit by these assailants continuously. Thereafter some people of the village rescued them and took them to their house. The complainant became conscious only in the next morning when he found that the condition of the Gaje Singh was even worst. Gaje Sing was being taken to the Hospital at “Narayanbagad”, but he died on his way. This witness further states that he reported the matter to the "Gram Pradhan”. The “Gram Pradhan” noted down in writing what was being told to him by the complainant and, subsequently, the matter was reported to the concerned “Patwari”. The Complainant further states that he went next day to the hospital at Narayanbagad, where he was medically examined and treated. He further states that it was in his presence when the “Patwari” recovered the “Danda” near the “Khet” of one Lal Singh. The “Danda” was stained with blood. This weapon was sealed by the “Patwari” and, which is marked as Ext-1, was opened to show this witness, who verified the same by which they were assaulted. Similarly, sample soil and stones were marked as Ext. 2 and 3 respectively in the court. Since, it was an incident of night, Gaje Singh (deceased) was carrying a torch and it was its light he could see the assailants. Further, Raghuveer Singh (PW3), who came to the incident soon after, were also carrying torches. The witness in his cross-examination sticks to the story of the prosecution and states that after the information was given to the “Patwari”, an investigation being done. He was called by the “Patwari” on 27-28 of November 1997. He further accepts that there is history of enmity and bad blood between the complainant and deceased of one side and the assailants on another and there is another case of “Maarpeet” going on between the parties at Karnprayag, District Chamoli. He further shows ignorance regarding any meeting or “Panchayat” held in the village after the incident, as he was in no condition to know such meeting, as he was severely injured. He further shows ignorance regarding any meeting or “Panchayat” held in the village after the incident, as he was in no condition to know such meeting, as he was severely injured. He was cross-examined by the defence on the issue that he has narrated the source of light while lodging an FIR but submits that this is not a case of afterthought and he was indeed a torch with both Gaje Singh and Rahuveer Singh. 6. PW2 is Dr. Mayank Upadhyay, who conducted the autopsy on the body of the deceased Gaje Singh on 23.11.1997 at about 4.00 pm. He states that the body was being brought to him for post mortem. There was no rigor mortis on the upper part of the body but the lower part of the body is still under rigor mortis. The eyes of the deceased were closed and there was blood stained on his nonstril. On anti mortem report he could see that there are following injuries on the body of the deceased : (i) Lacerated wound 5.5 cm x 1 cm x bone deep which was on the left side of the head 10 cm above the left ear (ii) Lacerated wound 3.5 cm x 1.5 cm x bone deep on the right side of forehead 5 cm above from the eyebrow. (iii) Abrasion 3 cm x 1 cm with having blue marks on the right side of face (iv) Contusion 7 cm x 4 cm bluish in color on the back (v) Abrasion 4 cm x 2 cm on the left side of right knee (vi) Abrasion 5 cm x 1 cm on the inner part of the left leg. 7. On internal examination, he could see that regarding the first injury, the bones were fractured and the membranes were also torn. According to him, injury no.1 was the fatal injury, of which cause the death of the deceased Gaje Singh, which according to him was due to the Shock and Hemorrhage. He further states that death of the deceased had occurred between 36 hours to 48 hours prior to the autopsy. 8. PW3 Raghuvir Singh is another eye-witness though this eye-witness had not seen the actual incident but he had seen the assailants running from the spot. He further states that death of the deceased had occurred between 36 hours to 48 hours prior to the autopsy. 8. PW3 Raghuvir Singh is another eye-witness though this eye-witness had not seen the actual incident but he had seen the assailants running from the spot. This prosecution witness, namely, Raghuvir Singh states that on 21.11.1997 between 10.00 pm to 11.00 pm in the night in the house of Fate Singh, who was resident of the same village and where his son about to get marry, and therefore a “Katha” was being organinsed at his house and he had gone along with another villagers to hear the “Katha”. He was there till half of the “Katha” was over and then he tried to return his house between 10.30 to 11.00 pm. While on his way he saw somebody crying, and this voice was coming near the water tank. According to this prosecution witness he was heard something like “Mujhe Maar Diya Mujhe Maar Diya” (they have killed me they have killed me). After hearing this cry, this witness rushes towards the spot from where this voice was coming . In the light of the torch he was carrying he saw assailants Raje Singh, Hari Singh, Gopal Singh, Avtar Singh and Kalam running away towards their house. These assailants were of his village and he recognized each of them in the court. He further recognized each of them in the light of the torch, which he was carrying. All the same, this witness further states that he went to the spot where he found Soban Singh lying injured near the water tank and there was injuries on his body from which the blood was oozing out and the injured was in no position to speak. He lifted the injured and brought him to his house. After some time, Soban Singh gained conscious and told him that Gaje Singh was also with him. Consequently, this witness went to the spot again in order to search for Gaje Singh and he found Gaje Singh lying there who was also injured and was not in a position to speak. He took Gaje Singh to the same place i.e. Soban Singh place. At this time, Soban Singh told this witness that when the accused were hitting him than Gaje Singh rushed in order to save him and consequently, he was also assaulted by these assailants. He took Gaje Singh to the same place i.e. Soban Singh place. At this time, Soban Singh told this witness that when the accused were hitting him than Gaje Singh rushed in order to save him and consequently, he was also assaulted by these assailants. Soban Singh further requested that Gaje Singh be taken to his place and should be given medical treatment. Thereafter he took Gaje Singh to his place. In the night, he called some other villager, namely, Chandra Singh and since, Gaje Singh was severely injured it was decided that Gaje Singh should be taken to the hospital in the morning, which was at “Narayanbagad”. Further when Gaje Singh was being taken to the hospital in the morning, he passed away. They left the body at a nursery and went to the Patwari to inform him about the death. When the Patwari reached the nursery, it was 7 to 8 am. This witness was again put to cross-examination by the defence, but he stuck to the prosecution story. It is further corroborated from the inquest report that the “Panchnama” which was conducted by the Patwari was at nursery where according to PW3, the body of Gaje Singh was place after he passed away on his way to the hospital. It is also true that Gaje Singh is cousin of this witness. 9. PW4 is Dr. L. S. Singh, who examined the injured Soban Singh on 23.11.1997 at 11.10 am at Primary Heath Centre, Lahangpur has found following injuries on the body of the injured: (i) Lacerated wound 0.5 cm x 2 cm on the right side of head skin deep and 7 cm above from the middle of the right eyebrow. (ii) Lacerated wound 0.5 cm x 1.5. cm on the right side of the head skin deep 7 cm above from the right eyebrow. (iii) Blue spot 3 cm x 2 cm on the left side of head, 8 cm above from the left pinna (iv) Blue spot 3 cm x 5 cm on the left side of back 9 cm above from the joint of left shoulder (v) Blue spot 5 cm x 7 cm and 5 cm below from the scapula of left side of back (vi) Abrasion 2 cm x 3 cm on the left side of face d 2 cm below of Skull. According to PW4 Dr. According to PW4 Dr. L. S. Singh, all these injuries could have been caused by “Lathi” or “Danda”. 10. PW5 Gopal Datt was the Patwari of Chhekuda and was also holding the charge of Patwari Brit Panti (since the Patwari of Brit Panti had been transferred and charge was given to him.). According to this witness, as per the records, the FIR was lodged at 6.00 am in the morning of 23.11.1997. After registering the case, he conducted the investigation and proceeded to the spot. He spotted the body at “Gadhera” (a rivulet), where he started with inquest proceeding and prepared the inquest report. After requisitioning the required “Panch” he prepared site-plan etc and conducted the procedure as required by law. He stated that there were injuries on the body of the complainant and therefore he was asked to go and get himself medically examined at the Primary Health Centre, Narayanbagad. He further collected the blood stained sample from the place of occurrence of crime and prepared a “fard”. He further recovered the “Danda” from the “Khet”. 11. PW6 Kamleshwar Prasad is another “Patwari”, who continued the investigation after he joined as Patwari of Panti (as we already know, the earlier Patwari, PW5, was only holding charge of Patti Panti). According to him, a “Khukhari” was recovered on pointing out of accused Hari Singh. In his cross-examination, this witness further states that when the accused Raje Singh and Hari Singh were arrested, he could see injuries on their body. He did not think it worthwhile to send them for medical examination. In other words, as per the statement of this witness, it is also clear that incident did take place in the night of 21.11.1997 in which complainant Soban Singh received injuries and deceased Gaje Singh was actually killed and the alleged assailants at least Raje Singh and Hari Singh have also sustained injuries. 12. PW7 Kamla Devi is the wife of the deceased and the statement of this witness are slightly contradictory to that of PW1, inasmuch as she states that her brother-in-law, namely, Mahavir Singh came to her house at about 7.00 pm and took away Gaje Singh for the “Katha” in the village whereas in his examination-in-chief PW1 states that the incident happened in the night when he and Gaje Singh were going to answer the call of nature. Apart from this, this witness more or less corroborates the prosecution story. 13. The court had also summoned four other witnesses, namely, Balwant Singh (C.W.1), Smt. Fuli Devi (C.W.2), Fate Singh (C.W.3) and Vachan Lal (C.W.4) under Section 311 of Cr.P.C. In the interest of justice, these witnesses also by and large corroborate the story of the prosecution. As per examination of witness and other materials available on record, it is abundantly clear that the incident, as stated in the FIR, did take place where one person namely, Gaje Singh died in the incident, whereas the Soban Singh sustained injuries on his head. As per the medical examination and the statement of the Doctor who had examined the injured and done the postmortem, these injuries can be sustained by “Lathi” blows. 14. Although the incident was in the night yet one must also keep in mind the fact that both the assailants as well as the injured and the deceased belonging to the same village. A village in a hill area particularly is a small habitation where everyone knows everyone. There was no source of light and hence it could have been difficult for the witnesses i.e. PW1 and PW3 to know who were the assailants, however, this could also be known from their voices. Moreover, in any case there was also a source of light, namely, torch in hands of Gaje Singh and PW3 Raghuvir Singh. Therefore, as far as the veracity of the incident and the involvement of the accused/appellants is concerned it is not in doubt. The prosecution has also been able to establish its case against the accused/appellants. The minor contradictions in the statements of PW1 and PW3 and other witnesses regarding Hari Singh armed with the “Khukhari” or “Lathi” may not be very material. 15. Learned counsel for the accused/appellants though argued that in any case the accused/appellants were in total five, namely, Hari Singh, Raje Singh, Gopal Singh, Autar Singh and Kamal Singh. It has not been clear as to which accused was carrying which weapon. Moreover, one of the accused, namely, Kalam Singh has been acquitted by the trial court. 15. Learned counsel for the accused/appellants though argued that in any case the accused/appellants were in total five, namely, Hari Singh, Raje Singh, Gopal Singh, Autar Singh and Kamal Singh. It has not been clear as to which accused was carrying which weapon. Moreover, one of the accused, namely, Kalam Singh has been acquitted by the trial court. Apart from this, considering the nature of the injuries as well as injured witness even assuming for the sake of argument (though he has not stated) the offence is not one, which is liable to be convicted under Section 302 IPC and utmost there could be a conviction only under Section 304 IPC. 16. Heard learned counsel for the accused/appellants on this aspect. The deceased Gaje Singh had the following injuries on his body: (i) Lacerated wound 5.5 cm x 1 cm x bone deep which was on the left side of the head 10 cm above the left ear. (ii) Lacerated wound 3.5 cm x 1.5 cm x bone deep on the right side of forehead 5 cm above from the eyebrow. (iii) Abrasion 3 cm x 1 cm with having blue marks on the right side of face (iv) Contusion 7 cm x 4 cm bluish in color on the back (v) Abrasion 4 cm x 2 cm on the left side of right knee (vi) Abrasion 5 cm x 1 cm on the inner part of the left leg. 17. Out of these injuries, injury no.1 is the fatal injury, which was on the left side of the head in which the skull was fractured and even the brain membrane was damaged. The rest of the injuries could not have caused death. Considering also the facts that only one of the assailants was armed with “Danda”, even assuming that there was common intention of all the assailants, this Court is of considered view that they could not have been convicted under Section 302 IPC and the proper course for conviction would have been under Section 304 IPC. 18. For the reasons as discussed above, we alter the finding of the trial court. Consequently, conviction and sentence recorded by trial court under Sections 323/34 and 302/34 IPC, against the accused/appellants is converted to that of 323/34 and 304/34 IPC. 18. For the reasons as discussed above, we alter the finding of the trial court. Consequently, conviction and sentence recorded by trial court under Sections 323/34 and 302/34 IPC, against the accused/appellants is converted to that of 323/34 and 304/34 IPC. In other words, the findings of the trial court are altered from that of murder to that of culpable homicide not amounting to murder and the accused/appellants namely, Hari Singh, Raje Singh, Gopal Singh and Autar Singh are sentenced to undergo rigorous imprisonment for 6 years under Section 304 Part II of IPC, instead of the life imprisonment awarded by the trial court under Section 302 IPC. Their (Hari Singh, Raje Singh, Gopal Singh and Autar Singh’s) convictions under Section 323 IPC is affirmed but they are sentenced to rigorous imprisonment for a six months as well as a fine on `5000/- each. In case of any default of fine they shall further under go one month of imprisonment. Both sentences shall run concurrently. With this modification in the conviction, and sentence this appeal stands disposed of.