JUDGMENT U.C. Dhyani, J. Criminal law was set into motion at the instance of Lal Singh s/o Ram Singh, resident of Village Duni, Gangolihat, District Pithoragarh, who wrote a complaint to Officer In-Charge, reporting outpost, Gangolihat, within the jurisdiction of police station Berinag, enumerating the facts therein that some cattle entered into the field of Jagat Singh, a neighbour of informant Lal Singh. The family members of Jagat Singh accused Lal Singh of permitting the cattle into his field. An altercation took place between Lal Singh and family members of Jagat Singh. Jagat Singh hurled abuses at Lal Singh’s mother Parwati Devi. Despite being requested not to do so, Jagat Singh carrying dao (a sharp edged weapon), Narendra Singh armed with basula (carpenter’s axe), Parwati Devi (daughter of Jagat Singh) carrying moosal (a grinding instrument) and Hanuman carrying dao (a sharp edged weapon) started beating informant’s mother. They dragged Parwati Devi (mother of Lal Singh). Lal Singh, his sister Km. Govindi and brother Harak Singh tried to save their mother, but they were also beaten up by the accused persons. Parwati Devi (mother of Lal Singh) was beaten to death. It was alleged in said report that said incident took place on 18.01.2001, at 02:00 P.M. Lal Singh and others were witnesses to the said incident. 2) On the basis of said report, chick FIR was registered on 18.01.2001, at 04:00 P.M. against all the four accused persons in respect of offences punishable under Sections 302, 324, 323 of IPC. The incident took place on the selfsame date at 02:00 P.M. The distance between reporting outpost Gangolihat and the place of occurrence was 25 Kms. Hence, there appeared to be no delay in lodging the FIR. 3) Investigation started on the basis of said FIR. After completion of investigation, a charge sheet in respect of offences punishable under Sections 302, 323, 324 and 307 of IPC was submitted against Jagat Singh, Narendra Singh, Parwati Devi (daughter of accused Jagat Singh) and Hanuman Singh. When the prosecution opened the case, charges for the offences punishable under Section 302 read with S.34, S.307, S.324 read with S.34 and S.323 read with S.34 of IPC were framed against the accused persons, to which they pleaded not guilty and claimed trial. 4) Eight witnesses were examined on behalf of prosecution. They were – P.W.1 Lal Singh, P.W.2 Km. Govindi, P.W.3 Dr. 4) Eight witnesses were examined on behalf of prosecution. They were – P.W.1 Lal Singh, P.W.2 Km. Govindi, P.W.3 Dr. B.R. Singh, P.W.4 Harak Singh, P.W.5 Dr. Brij Mohan Singh Tolia, P.W.6 Constable Jasvir Singh, P.W.7 Gopal Ram and P.W.8 Sub Inspector Ram Avtar Singh. However, no evidence was adduced on behalf of the accused-appellants in defence. 5) After the prosecution evidence was closed, incriminating evidence was put to accused persons under Section 313 of Cr.P.C., in reply to which they said that the evidence adduced against them was false. After hearing both the parties, accused persons namely, Jagat Singh, Narendra Singh, Hanuman Singh and Parwati Devi (daughter of accused Jagat Singh) were convicted of the offences punishable under Section 302 read with S.34, S.324 read with S.34 and S.323 read with S.34 of I.P.C. However, all the four accused persons were acquitted of the charge of offence punishable under Section 307 of IPC. After hearing on sentence, all the four convicts were sentenced appropriately. Aggrieved against said judgment, present criminal appeal was preferred. 6) Prosecution led the evidence by examining P.W.1 Lal Singh, who not only proved the contents of complaint (Ext. Ka-1) in his examination-in-chief, but also supported prosecution story. He was the informant as well as the eyewitness to the incident. He narrated the details of incident in his examination-in-chief. He stated on oath, what was reported by him in the complaint. In addition to the above, he also said that an altercation took place with Jagat Singh’s family members in the morning, but the same was pacified with the intervention of village pradhan. The incident of beating took place at 2:00 P.M. on the selfsame day. His mother Parwati Devi was dragged by the accused persons towards the chabutara of their house and beaten to death. Such chabutara was at a distance of 10 meters from informant’s house. This witness was cross-examined at length, but nothing appeared in such cross-examination, which might cast a shadow of doubt on his testimony. Thus, the evidence tendered by P.W.1 was acceptable. 7) P.W.2 Km. Govindi also supported prosecution story and corroborated the evidence of her brother P.W.1. She was present at the place of incident and, as such, she was also the eyewitness. Thus, the evidence tendered by P.W.1 was acceptable. 7) P.W.2 Km. Govindi also supported prosecution story and corroborated the evidence of her brother P.W.1. She was present at the place of incident and, as such, she was also the eyewitness. She was also cross-examined on behalf of the appellants, but learned counsel for the defence could not point out any infirmity in the cross-examination of P.W.2, which might cast doubt on the eyewitness account rendered by her. The evidence tendered by P.W.2 was also believable. 8) Eyewitness account given by P.W.1 and P.W.2 was corroborated by the medical evidence. P.W.3 Dr. B.R. Singh examined injured Lal Singh on 18.01.2001, at 05:20 P.M., and found a bone deep incised wound over scalp, right front of parietal area measuring 4.5 cm x 0.5 cm, 6.5 cms. above mid point of right eyebrow. He also found another incised wound over left middle finger at the level of distal interphalangeal joint measuring 1.5 cm X 0.5 cm X 0.5 cm. The Medical Officer opined in medical examination report (Ext. Ka-2) that both the injuries appeared to be caused by hard and sharp object, both injuries were of about 2½ to 3 hours duration and were simple in nature. The same Medical Officer on the selfsame date, at 11:00 P.M. also examined injured Harak Singh and found an incised wound over palmer surface of middle interphalangeal joint of left index finger measuring 2 cm x 0.5 cm x 0.2 cm. A laceration over dorsal aspect of base of right little finger measuring 1.5 x 0.5 x 0.5 cm was also found. The Medical Officer opined in his medical examination report (Ext. Ka-3) that injury no. 1 appeared to be caused by hard and sharp object, while injury no. 2 appeared to be caused by hard and blunt object. Both the injuries were of simple nature and were of about 8 to 10 hours duration. On the very day at 11:20 P.M., the same Medical Officer also examined injured Km. Govindi Devi and found a bone deep incised wound over scalp in center of parietal area measuring 4 cm x 0.5 cm. Another incised wound over occipital area on right side measuring 3 x 0.5 cm was found. A laceration over left temporal area of scalp measuring 2 x 0.5 cm x 0.2 cm was also noticed. He opined in his medical examination report (Ext. Another incised wound over occipital area on right side measuring 3 x 0.5 cm was found. A laceration over left temporal area of scalp measuring 2 x 0.5 cm x 0.2 cm was also noticed. He opined in his medical examination report (Ext. Ka-4) that injuries nos. 1 and 2 appeared to be caused by hard and sharp object, while injury no. 3 appeared to be caused by hard and blunt object. He further observed that all the injuries were of about 8 to 10 hours duration and nature of injuries no. 1 and 2 seemed to be dangerous, while injury no. 3 was simple in nature. Since Lal Singh, Harak Singh and Km. Govindi Devi sustained injuries on the same date and at the same time, hence their presence on the scene of occurrence could not be doubted. 9) P.W.4 Harak Singh, in his examination-in-chief said that on 18.01.2001, some cattle entered into the field of accused Jagat Singh, who hurled abuses at PW 4’s mother Parwati Devi in the morning. Village Pradhan intervened and the dispute between the parties was settled with his intervention. Again, on the selfsame day at 02:00 P.M., Jagat Singh dragged the mother of P.W.4. When P.W.4 Harak Singh’s elder brother Lal Singh came to save the victim, Jagat Singh inflicted blow of dao (a sharp edged weapon) on his head. When his sister Km. Govindi came to save her mother, then accused Narendra Singh inflicted blow of basula (carpenter’s axe) on her head. When P.W.4 Harak Singh went to save his mother, then accused Hanuman Singh caused injury on the fingers on his hand with dao (a sharp edged weapon), and accused Parwati Devi (daughter of accused Jagat Singh) inflicted blow of moosal (a grinding instrument) on the head of Parwati Devi, mother of PW 1, PW 2 and PW 4. Consequently, Parwati Devi died on the spot. P.W.4 further said that he alongwith his brother Lal Singh and his sister Govindi went to police station Gangolihat, where P.W.1 Lal Singh lodged the report. Police sent them to hospital for treatment, whereupon Harak Singh, Govindi and Lal Singh were medically examined by the doctor and were given treatment. Nothing came in the cross-examination of this witness too which might suggest that P.W.4 Harak Singh was telling a lie. Police sent them to hospital for treatment, whereupon Harak Singh, Govindi and Lal Singh were medically examined by the doctor and were given treatment. Nothing came in the cross-examination of this witness too which might suggest that P.W.4 Harak Singh was telling a lie. 10) The eyewitness account rendered by P.W.1, P.W.2 and P.W.4 was further corroborated by the medical evidence tendered by P.W.5 Dr. Brij Mohan Singh Tolia, who conducted postmortem on the dead body of Parwati Devi on 19.01.2001 and found two bone deep lacerated wounds, one on mid scalp just right to midline and the other on anterior side of right parietal region of scalp. One lacerated wound was also found present on posterior part of left parietal region of scalp. P.W.5 proved the postmortem report (Ext. Ka-6) and opined that the cause of death of Parwati Devi was coma due to ante mortem head injuries. 11) P.W.6 Head Constable Jasvir Singh, P.W.7 Constable Gopal Ram and P.W.8 Sub Inspector Ram Avtar Singh were formal witnesses. 12) Thus the eyewitness account given by P.W.1, P.W.2 and P.W.4 was totally substantiated by the medical evidence of P.W.3 and P.W.5. Whereas P.W.3 found injuries on the person of injured eyewitnesses, P.W.5 found such ante mortem injuries on the body of deceased, which caused her death. Participation of all the accused- appellants in the crime was proved. 13) Learned counsel for the accused-appellants argued that there was difference in the timings of arrival of informant P.W.1 Lal Singh and P.W.2 Km. Govindi on the place of incident. No such question was asked in the cross-examination of P.W.1 or P.W.2, which might suggest that the time of their arrival on the place of incident was different. No such question was asked in the cross-examination of P.W.4 Harak Singh either, so as to suggest that the timings of arrival of P.W.1, P.W.2 or P.W.4 on the place of incident was different. On the contrary, the injuries sustained by these three witnesses on the selfsame date and time established their presence on the place of occurrence. There was no evidence to suggest that the injuries sustained by P.W.1, P.W.2 and P.W.4 were self-inflicted injuries. Assault by the appellants was in continuity. Firstly, Parwati Devi (mother of P.W.1, P.W.2 and P.W.4) was dragged to chabutara (elevated platform) by accused. There was no evidence to suggest that the injuries sustained by P.W.1, P.W.2 and P.W.4 were self-inflicted injuries. Assault by the appellants was in continuity. Firstly, Parwati Devi (mother of P.W.1, P.W.2 and P.W.4) was dragged to chabutara (elevated platform) by accused. When P.W.1 Lal Singh went to save her, he was given a beating with sharp edged weapon. When P.W.2 Govindi went to save her mother, she was also assaulted with carpenter’s axe. P.W.4 Harak Singh also received beating with sharp edged weapon when he went to save his mother Parwati Devi. Victim Parwati Devi (mother of P.W.1, P.W.2 and P.W.4) was given a blow of moosal (heavy grinding instrument) on her head by accused Parwati Devi (daughter of accused Jagat Singh) and as a consequence thereof, victim died immediately on the spot. All (P.W.1, P.W.2 and P.W.4) were present there and all of them went to save their mother, not together, but one by one. Perhaps, within seconds. Hence it could not be said that when one injured witness left the scene of incident, then only the other came. 14) Learned counsel for the accused-appellants further argued that even if the prosecution evidence is accepted, still the case will fall within the ambit of culpable homicide not amounting to murder. The facts which emerged from the evidence of P.W.1, P.W.2 and P.W.4 are that accused-appellant Jagat Singh hurled abuses at Parwati Devi (victim) in the morning and the dispute between them was settled with the intervention of village pradhan in the morning itself. Again on the selfsame day at 02:00 P.M., accused-appellant Jagat Singh dragged Parwati Devi (victim) to his chabutara. When P.W.1 came to save his mother, he was caused injury by Jagat Singh; when P.W.2 came to save her mother, she was given a blow by Narendra Singh; when P.W.4 came for rescue of his mother, he was assaulted by Hanuman Singh. In the last, Parwati Devi (accused) inflicted blow with a grinding instrument on the head of Parwati Devi (victim), which resulted in her death. 15) The injury caused by the appellants was not sufficient in the ordinary course to cause death of victim. It did not appear to the appellants that blow of grinding instrument could result into victim’s death. There is no evidence on record showing premeditation on the part of appellants. 15) The injury caused by the appellants was not sufficient in the ordinary course to cause death of victim. It did not appear to the appellants that blow of grinding instrument could result into victim’s death. There is no evidence on record showing premeditation on the part of appellants. It is not culled out from the evidence that the appellants took the risk with the knowledge that if blow of grinding instrument was inflicted on victim, the same would result into her death. When accused took victim to chabutara, they were unarmed. The incident was not preplanned. Dao (a sharp edged cutting instrument), basula (carpenter’s axe) and moosal (a grinding instrument) are not ordinarily used for committing murder. Needless to say that the accused-appellants committed the offence in furtherance of their common intention. 16) We are, therefore, inclined to hold that the appellants were not guilty of committing murder. Instead, they were guilty of culpable homicide not amounting to murder. 17) Now the question is what sentence should be prescribed to the accused-appellants. Considering the facts and attenuating circumstances of the case, we are of the opinion that the ends of justice will be met if the accused-appellants are awarded rigorous imprisonment for a period of ten years and also a token amount of fine. 18) Thus, we hold that learned trial court has correctly appreciated the evidence, but its conclusion about holding the appellants guilty of the offence punishable under Section 302 read with S.34 of IPC is incorrect. The conviction and sentence recorded by the trial court against the accused-appellants in respect of offence punishable under Section 302 read with S.34 of IPC is, therefore, set aside. Instead, each one of them is convicted under Section 304 (Part I) read with S.34 of IPC and are sentenced to undergo rigorous imprisonment for a period of ten years and a fine of 5,000/-, in default of payment of which, they shall further undergo six months’ imprisonment. The conviction and sentence recorded by the learned trial court against accused-appellants in respect of offences punishable under Section 324 / 34 and S.323 / 34 of IPC is not interferred with. 19) All the accused-appellants are on bail. Their bail is cancelled. They are directed to surrender before the Court concerned to serve out the sentence awarded to them. The conviction and sentence recorded by the learned trial court against accused-appellants in respect of offences punishable under Section 324 / 34 and S.323 / 34 of IPC is not interferred with. 19) All the accused-appellants are on bail. Their bail is cancelled. They are directed to surrender before the Court concerned to serve out the sentence awarded to them. Let a copy of the judgment and order along with lower court record be sent to the Court below for ensuring compliance as above.