JUDGMENT 1. - This appeal has been preferred by the appellant No.1 Vishnu @ Vissu son of Mangya and the appellant No.2 Shivdayal son of Vishnu @ Vissu as a result of their conviction by the learned Additional Sessions Judge (Fast Track), Hindaun City, District Karauli in Sessions Case No.70/2002 (18/2002) whereby the appellant No.1 Vishnu has been convicted for the offence under Section 302 Indian Penal Code and sentenced to life imprisonment and a fine of Rs.1,000/- and in default of payment of fine to further undergo three months rigorous imprisonment. The appellant No.2 was convicted for the offence under section 302/34 Indian Penal Code and sentenced to life imprisonment and a fine of Rs.1,000/- and in default of payment of fine to further undergo three months rigorous imprisonment. Another accused Tulsi son of Vishnu, the appellant No.1 also stood trial but died during pendency of the trial before the learned trial court and as such the proceedings against Tulsi were abated before the learned trial court. 2. The brief facts giving rise to this appeal are that an FIR was lodged on 21.12.2001 at Police Station Todabhim, District Karauli that on 20.12.2001 informant Vishambhar Dayal and others were at their house repairing canvas (tripal) and at that point of time a sudden quarrel took place between Harimohan son of Prabhati and Vishnu, the appellant No.1. This fight arose on account of certain money transaction between the parties and at that time the deceased Deviram intervened and separated the two who were quarreling. It is alleged that Vishnu, the appellant No.1 immediately went to his house and brought a sail (sariya) and gave blow to Deviram which pierced his chest and as a result of which Deviram died. It was also alleged that the deceased was held by Tulsi and Shivdayal, two sons of Vishnu and Vishnu inflicted the fatal blow. 3. The prosecution examined 12 witnesses and 14 documents and from the side of the defence 9 documents were exhibited including the report lodged by Shivdayal with the police which is Exhibit D-6 which was registered as FIR No.492/2001 at Police Station Todabheem, District Karauli and also the injury report of Tulsi Ram and they also examined DW-1 Dr.Siyaram Meena for proving the Injury Report of Tulsiram (Exhibit D-9). 4. 4. It may be stated here that one of the accused Tulsi, son of Vishnu, the appellant No.1 herein died during trial and as such the proceedings against Tulsi son of Vishnu stood abated before the learned trial court. 5. The learned trial court after recording the evidence and examining the accused under Section 313 Criminal Procedure Code and after hearing the arguments convicted the two accused appellants, as stated above for the offence under Section 302 and 302/34 Indian Penal Code respectively and awarded the sentence as mentioned hereinabove. 6. Being aggrieved by the aforesaid judgment of conviction and sentence, the appellants preferred this appeal. The accused Vishnu and Shivdayal were arrested on 22.12.2001. The appellant No.1 Vishnu has remained in custody since 22.12.2001 whereas the appellant No.2 Shivdayal was released by this court after suspension of his sentence vide order dated 15.09.2003 and has been on bail since then whereas the appellant No.1 Vishnu has completed more than ten years in jail. 7. Learned counsel for the appellants contended that the parties are relatives and fight was not a pre-meditated one and it is a case of a single injury came in the spur of the moment and as per the prosecution, that has been inflicted by the appellant No.1 Vishnu and co-accused Shivdayal was not involved in causing any injury. Learned counsel for the appellant in this behalf drew the attention of the court to the statement of PW-1 Vishambhar Dayal son of Deviram, the deceased. It has been stated by Vishambhar Dayal that there were four brothers Mohanlal, Kesulal, Sitaram and Prabhati. These four brother had one sister Rampyari. It has been stated by PW-1 Vishambhar Dayal that Vishnu, the appellant No.1 is son of Rampyari and Shiv Dayal and Tulsi are sons of Vishnu. All these three (father and two sons) were the accused before the learned trial court. Deviram, deceased was the son of Kesulal, brother of Rampyari, mother of the appellant No.1 Vishnu which would make the deceased a cousin (from the maternal side) of Vishnu. All these three (father and two sons) were the accused before the learned trial court. Deviram, deceased was the son of Kesulal, brother of Rampyari, mother of the appellant No.1 Vishnu which would make the deceased a cousin (from the maternal side) of Vishnu. As per the prosecution case as set out by PW-1 Vishambhar Dayal who is the son of the deceased there was a quarrel going on in relation to a money transaction and return of some money between the appellant No.1 Vishnu and Harimohan who is the son of Prabhu also, a brother of Rampyari, mother of the appellant No.1. Thus, there was a quarrel going on between the two cousins viz., Vishnu and Harimohan. At that point of time Deviram, the deceased who is also cousin intervened to stop the quarrel. The deceased had gone and stopped the fight between Vishnu and Harimohan after hearing the shouting which was going on between the parties. As per the statement of PW-1 Vishambhar, Tulsi and Shivdayal sons of Vishnu challenged Deviram, the deceased, that since he had intervened to save Harimohan, they would teach Deviram a lesson. It was stated by PW-1 Vishambhar that Vishnu went to his home and came carrying a sail (sariya) and inflicted a single blow on the chest of Deviram which pierced his chest on the left side. It is stated that they took Deviram to the Hospital at Hindaun where he was declared dead on arrival. To the same effect, is the story given by the other prosecution witnesses also. 8. Learned counsel for the appellants contended that looking to the fact that quarrel was between the family members and close relatives which was not pre-meditated and the quarrel was only relating to the return of some money between Harimohan and Vishnu and that Deviram who was also one of the close relatives, intervened to stop the fight between Vishnu and Harimohan which annoyed, as per the prosecution case, Vishnu and his two sons. Though, it is submitted that Shivdayal and Tulsi had no role even as per the statement of PW-1 Vishambhar in the entire transaction and Vishnu, the appellant No.1 went to his house which is at a distance of only 5 paces, as per the statement of PW-5 Harimohan and which is also proved from the Exhibit P-5, the site plan wherein the pator of the house of Vishnu had been shown just next to the place-XA where the alleged incident involving Deviram took place in which Deviram received injury and died as a result thereof. It was submitted that the incident even if the prosecution case is taken as held by the learned trial court cannot travel to an offence under Section 302 Indian Penal Code and at best would be a case for an offence under Section 304 Part-II Indian Penal Code where there was no intention to commit the murder of Deviram, the deceased. 9. Learned counsel for the appellants further contended that as far as the case of Shivdayal, the accused appellant No.2 son of the accused appellant No.1 Vishnu against whom the only allegation in the FIR was that he along with Tulsi, the deceased accused, held Deviram and faciliated Vishnu, the appellant No.1 in inflicting the injury with a sail (sariya) on the chest of Deviram is concerned, PW-1 Vishambhar himself has not corroborated the story in his statement before the court inasmuch as he has not corroborated his report (Exhibit P-1) regarding the involvement of Tulsi and Shivdayal in holding the deceased Deviram at the time when Vishnu is alleged to have inflicted the injury to Deviram deceased. On the other hand, learned counsel for the appellants pointed out from para 17 of the paper book in the statement of PW-1 Vishambhar who is the son of the deceased that he has categorically denied the suggestion in cross examination that the deceased had been held by Shivdayal and Tulsi. The relevant portion of the statement relied upon by the learned counsel for the appellant is as follows:- fo".kq vius ?kj ls yk;k vkSj nsohjke ds 'kjhj esa ?kksai fn;k bl chp mls fdlh us ugh idM+k D;ksafd fdlh dks irk gh ugh pykA 10. The relevant portion of the statement relied upon by the learned counsel for the appellant is as follows:- fo".kq vius ?kj ls yk;k vkSj nsohjke ds 'kjhj esa ?kksai fn;k bl chp mls fdlh us ugh idM+k D;ksafd fdlh dks irk gh ugh pykA 10. Learned counsel for the appellants, therefore, submitted that as far as the accused appellant No.2 Shivdayal is concerned, even as per the story of the prosecution witness PW-1 Vishambhar, the accused appellant No.2 Shivdayal did not play any role whatsoever in the entire incident as the entire incident occurred so quickly and so fast that nobody came to know when Vishnu went and brought a sail (sariya) and inflicted the injury to Deviram. Learned counsel for the appellants, therefore, submitted that as far as the accused appellant No.2 Shivdayal is concerned his appeal deserves to be allowed and he deserves to be acquitted of the offence under Section 302/34 Indian Penal Code. 11. Learned Public Prosecutor, on the other hand did not dispute the fact that so far as the relationship between parties as spelt out in the statement of PW-1 Vishambhar is concerned, he further submitted that the injury which was inflicted was sufficient in ordinary course of nature to cause death as the injury was a piercing one and as stated by the Doctor PW-12 Dr.Rajendra Sharma, who conducted the post mortem, wherein in his statement in court, he has stated that the injury despite being single single, the same was capable of causing death. Learned Public Prosecutor drew the attention of the court to the statements of the other prosecution witnesses namely PW-3 Samanta son of Kesulal, PW-4 Hari son of Kesulal and PW-5 Hari Mohan son of Parbhati that both Tulsi and Shivdayal had held the deceased and this facilitated the accused appellant No.1 Vishnu to inflict the injury to Deviram. He, therefore, submitted that so far as the conviction of Shivdayal, the accused appellant No.2 is concerned, the same deserves to be maintained with the aid of Section 34 Indian Penal Code. Learned Public Prosecutor also supported the judgment of the learned trial court and submitted that in the facts and circumstances of the case the injury was sufficient in the ordinary course of nature to cause death. The learned trial court has rightly convicted the appellants under Section 302 and 302/34 Indian Penal Code respectively. 12. Learned Public Prosecutor also supported the judgment of the learned trial court and submitted that in the facts and circumstances of the case the injury was sufficient in the ordinary course of nature to cause death. The learned trial court has rightly convicted the appellants under Section 302 and 302/34 Indian Penal Code respectively. 12. We have considered the rival submissions and we propose to take up the case of the accused appellant No.2 Shivdayal first. We are in agreement with the submissions of the learned counsel for the appellants that as far as the role assigned to the appellant No.2 Shivdayal is concerned, PW-1 Vishambhar son of Devi Ram has not only omitted to mention any role so far as Shivdayal and Tulsi are concerned but on the other hand has categorically denied any role of any third person in holding Devi Ram, his father, at the time when Vishnu is alleged to have inflicted the injury on the deceased. Similarly, we find that PW-7 Prabhati son of Dalu has also denied any role having been played by the two sons of Vishnu - Shivdayal and Tulsi. No doubt on the other hand, as submitted by learned Public Prosecutor, PW-3 Samanta, PW-4 Hari and PW-5 Hari Mohan have mentioned that both Tulsi and Shivdayal had held the deceased Devi Ram at the time when Vishnu, the accused appellant No.1 inflicted the injury to the deceased Devi Ram, nonetheless, in the facts and circumstances of the present case, there are two sets of evidence from the side of the prosecution which shows on the one hand that two sons of Vishnu - Shivdayal and Tulsi did not in any manner abet or facilitate the inflicting of the injury by Vishnu to deceased Devi Ram inasmuch as PW-1 Vishambhar has categorically denied any intervention by any person by holding the deceased and PW-7 Prabhati has also denied any role of Shivdayal and Tulsi. Thus, there being two sets of evidence of the prosecution and the prosecution seeks to rely on the testimony of both and this evidence raises a doubt upon the actual role having been played by the accused appellant No.2 Shivdayal along with the deceased accused Tulsi, we would grant the benefit of doubt to the accused appellant No.2 Shivdayal and acquit him of the offence under Section 302 read with Section 34 Indian Penal Code and set aside the judgment of conviction and sentence awarded by the learned trial court so far as the accused appellant No.2 Shivdayal son of Vishnu is concerned. 13. So far as the accused appellant No.1 is concerned, learned counsel for the appellants relied upon a decision of the Hon'ble Supreme Court in the case of Tholan Vs. State of Tamil Nadu reported in AIR 1984 SC 759 wherein dealing with similar circumstances, the Hon'ble Supreme Court altered the conviction from one under Section 302 Indian Penal Code to that under Section 304 Part-II Indian Penal Code. 14. In the aforesaid case of Tholan (supra) no doubt it was a case of a single injury and the fight had taken place by use of filthy language against certain organizers of chit fund in front of the house of the deceased and the deceased had intervened and asked the accused to move away from his house and at that point of time in a certain heat of the moment, the accused, who was carrying a knife gave a knife blow and pushed the deceased to a distance. In para-3 of the judgment itself, their Lordships of the Hon'ble Supreme Court have noted down the facts that the appellant had a knife with him around his waist and stabbed the deceased Sampat on the right side of his chest which on post mortem revealed that it was an incised gaping wound obliquely placed over the front of right side of the chest 1 cm away from the right sternal box dox on the 4th intercoastal space and 5 cm medial to the right nipple of size 2 cm x 1 cm at the maximum point. Depth was not probed. The external wound was spindle shaped with clear-cut edges on both sides and sharp point on either ends with blood clots. On internal examination fracture of 5th and 6th ribs were noticed. Depth was not probed. The external wound was spindle shaped with clear-cut edges on both sides and sharp point on either ends with blood clots. On internal examination fracture of 5th and 6th ribs were noticed. The depth of the wound was probed up to middle lobe of the right lung and proceeding up to right atrial cavity. The cause of death was stated to be shock and haemorrhage on account of the stab injury and the corresponding internal injury to vital organs like the heart and the lung. This injury, in the opinion of the Medical Officer, was sufficient in the ordinary course of nature to cause death. 15. We are aware that the facts in the instant case are some what similar to the one in the Tholan's case (supra) the accused was already carrying a knife around his waist as against the present case where the accused Vishnu went inside his house and instantly brought out the weapon which is a sail (spear like object) and inflicted the injury on the deceased Deviram. 16. Learned counsel for the accused appellants further relied upon the case of Dharam & Others Vs. State of Haryana reported in JT 2007 (1) SC 299 wherein while dealing with somewhat similar circumstances, the Hon'ble Supreme Court taking note of the fact that the accused after the initial incident went away and came armed and inflicted a single blow on the head of the deceased and another accused gave another blow also on the head of the deceased as a result of which the deceased died and the Hon'ble Supreme Court taking note of the facts altered the conviction from one under Section 302 Indian Penal Code to one under Section 304 Part-II Indian Penal Code. 17. We have considered both the above cited decisions. It is true that in Dharam's case (supra) as stated in para-2 of the report, the deceased and the accused were close relatives which also is there in the instant case as the accused and the deceased are all from the same family of one Dalu who had four sons and a daughter, the relationship has been given in the statement of PW-1 Vishambhar. The accused are the sons and grandsons of the daughter of Dalu namely Rampyari and the deceased is grandson of Dalu being son of his second son Kesulal. The accused are the sons and grandsons of the daughter of Dalu namely Rampyari and the deceased is grandson of Dalu being son of his second son Kesulal. The incident occurred over some dispute regarding return and repayment of money between Vishnu and Harimohan, also a grandson of Dalu being son of PW-7 Prabhati, and this has resulted in inflicting of injury by Vishnu at the spur of moment to Deviram as a result of which Deviram has died may be he was also provoked due to the fact that Tulsi son of accused appellant No.1 had received some injury as per Exhibit D-9. The facts which have come on record clearly go to show that there was no pre-meditated act on the part of the accused appellant No.1 Vishnu to have committed the murder of Deviram. As has been stated by the prosecution witnesses also there was no fight or dispute between Vishnu and Deviram deceased. The Deviram had only intervened to stop the on going quarrel between Vishnu and Harimohan and the accused appellant No.1 Vishnu became annoyed as he thought Deviram was taking side of Harimohan and intervened in the matter and therefore he wanted to teach a lesson to Deviram. In the instant case, when only one injury was caused by the appellant, no doubt on the chest of the deceased and which as per the Doctor was sufficient in the ordinary course of nature to cause death but the fact remains that the appellant No.1 Vishnu did not intend to commit murder as otherwise there was nothing to prevent the appellant No.1 from having cause repeated blows on the deceased. 18. In the facts and circumstances, the facts of the present case being somewhat similar to that of Dharam's case (supra) of the Hon'ble Supreme Court, we would accordingly accept partially the appeal of the accused appellant No.1 Vishnu @ Vissu son of Mangya and alter his conviction from Section 302 Indian Penal Code to that of Section 304 Part-I Indian Penal Code and he is sentenced to the period already undergone. The accused appellant No.1 Vishnu is in jail. He is directed to be released forthwith, if not required in any other case. 19. The accused appellant No.1 Vishnu is in jail. He is directed to be released forthwith, if not required in any other case. 19. So far as the accused appellant No.2 Shivdayal son of Vishnu is concerned, as stated above, we have granted him the benefit of doubt and acquitted him of the offence under Section 302 read with Section 34 Indian Penal Code by allowing his appeal and set aside the judgment of the learned trial court qua the accused appellant No.2. He is on bail, he need not surrender to his bail bonds. 20. However, it is made clear that both the accused appellants would be directed to submit the bail bonds, as required under Section 437A Criminal Procedure Code for the purposes of their appearance in any court in the event of any appeal being filed against the present judgment. Each of the appellants shall furnish a personal bond in the sum of Rs.20,000/- with two sureties of Rs.10,000/- each before the learned Sessions Judge, Karauli and the same shall remain in force for a period of six months, as required by Section 437A Criminal Procedure Code. *******