JUDGMENT 1. - This instant criminal appeal has been filed by the appellants under Section 374 (2) Cr.P.C. against the judgment dated 15.09.2008 passed by Additional Sessions Judge (Fast Track), Balotara, Headquarter Barmer in Sessions Case No. 66/2007 (old case No. 106/66) by which all the accused appellants are convicted and following sentence has been awarded against them :Accused - appellant Sad Ram convicted as under:- Offence under Section Sentenced to undergo Fine In default to pay fine 147 I.P.C. 1 year S.I. 100/- 7 days S.I. 148 I.P.C. 2 years S.I. 200/- 15 days S.I. 447 I.P.C. 2 months S.I. 50/- 3 days S.I. 323 I.P.C. 6 months S.I. 500/- 1 months S.I. 302 I.P.C. Imprisonment for life 3,000/- 6 months S.I. All the substantive sentences shall order to run concurrently.All accused-appellants other than Sad Ram convicted as under:- Offence under Section Sentenced to undergo Fine In default to pay fine 147 I.P.C. 1 year S.I. 100/- 7 days S.I. 148 I.P.C. 2 years S.I. 200/- 15 days S.I. 447 I.P.C. 2 months S.I. 50/- 3 days S.I. 323/149 I.P.C. 6 months S.I. 500/- 1 months S.I. 302/149 I.P.C. Imprisonment for life 3,000/- 6 months S.I. All the substantive sentences shall order to run concurrently. 2. As per brief facts of the case, an FIR ex.P.1 was registered against all the accused appellant upon complaint made by PW-1 Kumbha Ram S/o Heera Ram on 27.08.2006 at Police Station Dhorimana, District Barmer. The complainant alleged in the FIR that on 27.08.2006 at about 10-11 A.M., he along with Hanuman, Raju, Dhapu, Paru & Geeta were sowing the Gawar Crop in their field, at that time, Sad Ram, Rana Ram, Tilla Ram, Dalu Ram, Moti Ram, Kalu Ram, Chimna Ram, Vira Ram, Nena Ram, Chaina Ram, Dheera Ram, Peera Ram along with 20-25 came on the spot and started beating with the complainant party. 3. As per the FIR, appellant Sad Ram and Cheema Ram exhorted all accused appellants to kill the family members of the complainant party and Sad Ram inflicted a lathi blow upon the head of Hanuman and due to that head injury, blood came out from his forehead and he fell down on the spot. 3. As per the FIR, appellant Sad Ram and Cheema Ram exhorted all accused appellants to kill the family members of the complainant party and Sad Ram inflicted a lathi blow upon the head of Hanuman and due to that head injury, blood came out from his forehead and he fell down on the spot. It is also alleged that Rana Ram, Chaina Ram & Chemna Ram inflicted 'lathi' blow on Hanuman, so also PW-1 Kumbha Ram, PW-2 Raju Ram, PW-3 Dhapu, PW-7 Geeta and PW-21 received injuries in the incident. Upon beating they cried and upon crying, one PW-8 Prabhu Ram came on spot and accused appellants ran away from the site of occurrence, thereafter, injured persons were taken to the police station, Dhoriman from where to the hospital for treatment. 4. The SHO Police Station, Dhorimana, District Barmer registered the FIR No. 139/2006 on 27.8.2006 under Sections 147, 148, 149, 323, 447, 307 I.P.C. and commenced the investigation. 5. During investigation and treatment injured Hanuman Ram died on 11.09.2006 and in the post-mortem conducted by the Medical Board, injury caused upon the head was found to be the cause of death. The Investigating Officer obtained the Postmortem report Ex.P/46 and added the offence under Section 302 I.P.C. 6. The investigating Officer after completion of investigation submitted a charge-sheet against all the accused appellants namely Sad Ram, Rana Ram, Moti Ram, Kalu Ram, Dalu Ram, Cheemna Ram, Nena Ram, Vira Ram, Tilla Ram, Peera Ram, Dheera Ram and Chaina Ram in the Court of Judicial Magistrate, Barmer for offence under Sections 147, 148, 149, 323, 447, 302 I.P.C. 7. The Judicial Magistrate committed the case for trail to the Court of Addl. District & Sessions Judge, Barmer from where the case was transferred to the Court of Additional Session Judge (FT), Balotara for trial. 8. In the trial, after framing charges against the accused appellants, the statements of 26 prosecution witnesses including eye witnesses were recorded and to prove the case 72 documents were exhibited by the trial Court in the trial, thereafter, statement under Section 313 Cr.P.C. of all the accused appellants were recorded by the trial Court in which they denied the allegations made by the prosecution witnesses and submitted that they have been falsely implicated in the case. No evidence was adduced by the accused appellants in their defence but exhibited three documents in their support and closed the evidence. The additional Sessions Judge (FT), Barmer heard final arguments of both the sides and convicted the accused appellants finally vide judgment dated 15.09.2008 with penalty as aforesaid. 9. In this appeal, all the appellants are challenging the validity of judgment dated 15.09.2008 whereby the trial Court punished them for life imprisonment for offence under Sections 302, 302/149, 323, 447, 147, 148 I.P.C. 10. Learned Senior Advocate Mr. Mahesh Bora, assisted by Mr. Nishant Bora and Senior Advocate Mr. J.S. Choudhary assisted by Mr. Pradeep Choudhary vehemently argued that all the accused appellants were falsely implicated in this case because the land upon which the occurrence took place was not belonging to the complainant party and in fact it is 'gochar' land for which villagers were raising objection but complainant party forcibly made encroachment upon the said land and for the said reason quarrel in between villagers and complainant party took place. According to counsels for the appellants, the accused appellants were named in the FIR by the complainant because they were raising objection with regard to forcibly encroachment made upon the land in question where occurrence took place, therefore, the whole prosecution case is concocted one upon which appellants have been erroneously convicted for the alleged offence by the trial Court. 11. It is also submitted by the counsels for the appellants that eye witnesses PW-2 Raju Ram, PW-3 Smt. Dhapu, PW-4 Purkha Ram, PW-5 Shalu Ram, PW-6 Panna Ram, PW-7 Kumari Geeta, PW-8 Pabu Ram, PW-9 Khartha Ram, PW-10 Rupa Ram, PW-11 Jodha Ram, PW-13 Junghar Singh and PW-20 Bhajan Lal did not support the prosecution story and turned hostile in the trial but the trial Court completely ignored the said fact and committed gross error to convict the accused appellant for offence under Section 147, 148, 447, 323, 323/149, 302 and 302/149 I.P.C., therefore, the judgment impugned deserves to be quashed. 12. 12. With regard to the testimony of PW-1 Kumbha Ram and PW-21 Smt. Paru relied upon by the trial Court to convict all the accused appellants, it is submitted that PW-1 Kumbha Ram is brother of deceased and PW-21 Smt. Paru is wife of deceased, therefore, they are interested witnesses and upon their statement, it cannot be said that the prosecution has proved its case beyond reasonable doubt. The trial Court wrongly believed the statement of other prosecution witnesses for the purpose of convicting the accused appellant for the alleged offence, therefore, the judgment impugned may be quashed. 13. Learned counsel for the appellants vehemently submitted that the recovery of weapon of the offence did not connect the accused appellant with the crime because blood was not found upon the recovered lathis and motbirs of recoverives of lathi turned hostile in the court and did not support the prosecution case, therefore, on this count also, the appellants are entitled for acquittal and judgment under challenge deserves to be quashed. 14. While inviting attention towards, the place of occurrence, it is submitted that the land upon which the alleged offence is committed was 'gochar' land belonging to the Government and the complainant party wanted to take forcible possession of the said land, therefore, the villagers and accused appellants raised objection that the land in question is a 'gochar' land and this fact is proved from the statement of PW-16 Narayan Lal Patwari, therefore, it can be said that there is no evidence to convict all the accused appellant for offence under Section 302/149 of I.P.C. and to convict the accused appellant No. 1 Sad Ram for offence under Section 302 I.P.C. because as per prosecution evidence, the occurrence took place when objection was raised by the villagers with regard to making encroachment upon the Government land forcibly by the complainant party, therefore, the trial Court has committed a grave error in convicting all the accused appellant for offence under Section 302/149 I.P.C. and 302, 147, 148, 323, 447 I.P.C. 15. While inviting attention towards the medical evidence on record, it is submitted that the occurrence took place on 27.8.2006 and as per the allegations of the prosecution, one lathi blow was inflicted by accused Sad Ram upon the head of deceased Hanuman Ram and due to said injury, he died after 16 days on 11.09.2006, therefore, the prosecution added offence under Section 302 I.P.C. But in fact, it is not a case of offence under Section 302 I.P.C. against accused appellant Sad Ram because even if it is fact that deceased Hanuman Ram died due to head injury inflicted by accused appellant Sad Ram then also, trial Court has loose its sight of the fact that Hanuman Ram deceased died after 16 days from the date of alleged incident, therefore, it is not a case of offence under Section 302 I.P.C. against accused appellant Sad Ram. Learned counsel for the appellants vehemently pointed out that as per the statement of PW-18 Dr. Sunil Garg, no fracture was found on the head of deceased. Meaning thereby, even if it is presumed that occurrence took place due to quarrel in between the villagers in which one lathi blow was inflicted by accused appellant Sad Ram, then also, it cannot be said that it is a case of committing offence under Section 302 I.P.C. or other accused appellants can be convicted for offence under Section 302 I.P.C. read with Section 149 I.P.C. Even the prosecution story is accepted as a whole then also, the offence against the accused appellant Sad Ram did not travel beyond under Section 304 Part-II of I.P.C., therefore, on this count also, it is submitted that the finding given by the trial Court with regard to commission of offence under Section 302 I.P.C. against the accused appellant Sad Ram is not justified. 16. 16. Learned counsel for the accused appellant Sad Ram vehemently argued that all the accused appellants have been enlarged on bail in this case except accused appellant No. 1 Sad Ram and he is behind the bars from last more than six years and as per evidence on record, it is a case of culpable homicide not amounting to murder, therefore, even if the Court comes to the conclusion that accused appellant Sad Ram participated in the incident then also the appellant Sad Ram can not be convicted for offence under Section 302 I.P.C. and other accused appellants can not be held guilty for offence under Section 302 I.P.C. read with Section 149 I.P.C. 17. Learned Senior Advocates, appearing for accused appellants No. 2 to 12 vehemently argued that all the accused appellants have been convicted erroneously under Section 302/149 I.P.C. without assessing the evidence of prosecution properly for offence under Section 302/149, therefore, no offence under Section 302/149 is made out against appellants Nos. 2 to 12. 18. Learned counsel for the appellants submits that soon after the occurrence, when deceased Hanuman Ram was taken to the hospital, in all six injuries were found upon his body, out of which two were upon head and there is no specific allegation of PW-1 Kumbha Ram and PW-21 Smt. Paru that other accused appellants inflicted any injury. The specific allegation for inflicting one injury upon head is against accused appellant No. 1 Sad Ram, therefore, the finding given by trial Court with regard to offence under Section 302/149 I.P.C. against the accused appellant Nos. 2 to 12 is totally unfounded and contrary to the evidence on record. 19. Learned counsel for the appellants submitted that in this case, individual role of all the accused appellants is to be seen because as per prosecution story, the occurrence took place in the agricultural field, which is alleged to be disputed land belonging to the Government and complainant party forcibly trying to take possession of the said land, therefore, the occurrence took place in between villagers and complainant party and no other motive is specified by the prosecution therefore, finding given by the trial court deserves to be quashed. 20. 20. Lastly, it is argued that it is a case in which there is no trustworthy evidence on record to prove the fact that accused appellants constituted unlawful assembly or used any deadly weapons for committing offence, therefore, all the accused appellants are entitled for acquittal. 21. In support of his contentions, learned counsel for the accused-appellants cited following judgments:- 1. Gurmukh Singh v. State of Haryana [ 2009 (15) SCC 635 ] 2. Sasi v. State of Kerala [ 2000 (10) SCC 55 ] 3. Ramesh Kumar @ Toni v. State of Haryana [ AIR 2009 SC 2447 ] 4. Shankar Diwal Wadu v. State of Maharashtra [ AIR 2007 SC 1410 ] 22. Per contra, learned Public Prosecutor as well as learned counsel appearing on behalf of the complainant vehmently opposed the prayer for acquittal and submits that on the basis of prosecution evidence produced before the trial Court, the trial Court has rightly arrived at with the finding that the accused appellants are guilty of offence under Section 302 and 302/149, 323, 447, 147 and 148 I.P.C. The trial Court rightly appreciated the testimony of PW-1 Kumbha Ram - author of FIR and brother of deceased so also evidence of PW-21 Smt. Paru - wife of deceased, who is injured witnesses of the case, therefore, solely on the ground that they are relatives of deceased, their testimony cannot be discredited while treating them interested witness. The presence of these witnesses are not in dispute because they are eye witnesses and received injuries in the occurrence, therefore, it cannot be said that accused appellant are entitled for acquittal upon the ground that other eye witnesses turned hostile before the trial court. For the purpose of proving the case even one eye witnesses is sufficient, if his testimony is trust-worthy. Here in this case, undisputedly, the author of FIR PW-1 Kumbha Ram and PW-21 Smt. Paru are injured eye witnesses and their presence cannot be questioned for the simple reason that they received injuries in the occurrence took place which is evident from the medical report. 23. In view of above, learned Public Prosecutor as well as learned counsel for the complainant submits that the trial Court has rightly convicted the accused appellant for the offence of murder committed by them while participating as a member of unlawful assembly, therefore, this appeal may be dismissed. 24. 23. In view of above, learned Public Prosecutor as well as learned counsel for the complainant submits that the trial Court has rightly convicted the accused appellant for the offence of murder committed by them while participating as a member of unlawful assembly, therefore, this appeal may be dismissed. 24. After hearing learned counsel for the parties, we have examined the entire evidence on record. The counsel for the accused appellants are not disputing the occurrence and their main contention is that there was no motive to commit the offence under Section 302 I.P.C. or 302/149 I.PC and other offence. In our view, it is the duty of the prosecution to prove its case beyond reasonable doubt on the basis of reliable evidence and as per the arguments of the appellants, most of the eye witnesses turned hostile except PW-1 Kumbha Ram and PW-21 Smt. Paru and from evidence of prosecution, the following facts are not in dispute:- (1) The occurrence took place on 27.08.2006 wherein deceased Hanuman Ram died on 11.09.2006 after 16 days of the occurrence. (2) Admittedly, FIR was filed against 12 accused persons and soon after the occurrence when deceased was examined by the medical jurist, six injuries were found upon the body of deceased including two head injuries as per Ex.P-50. (3) Admittedly, out of nine eye-witnesses, seven eye witnesses, PW-2 Raju Ram, PW-3 Smt. Dhapu, PW-4 Purkha Ram, PW-5 Shalu Ram, PW-6 Panna Ram, PW-7 Kumari Geeta, PW-8 Pabu Ram turned hostile before the Court and did not support the prosecution story. (4) Admittedly, the witness of recovery PW-9 Kharta Ram, PW-10 Rupa Ram, PW-11 Jodha Ram and PW-13 Junghar Singh also turned hostile before the Court and did not support the prosecution story. (5) Admittedly, there is no allegation of repeated blow by the accused appellant Sad Ram upon the head of deceased Hanuman Ram. The allegation of PW-1 Kumbha Ram and PW- 21 Smt. Paru that accused appellant No. 1 Sad Ram inflicted one head injury by lathi and deceased Hanuman Ram died after 16 days and as per opinion given in the post-mortem report, the said injury was cause of death. The allegation of PW-1 Kumbha Ram and PW- 21 Smt. Paru that accused appellant No. 1 Sad Ram inflicted one head injury by lathi and deceased Hanuman Ram died after 16 days and as per opinion given in the post-mortem report, the said injury was cause of death. (6) It is also one of the admitted fact that compromise was arrived in between accused appellants and injured in between Kumbha Ram, Raju Ram, Smt. Paru Ram and accused appellants for offence under Section 447 and 323 I.P.C. Similarly, compromise was arrived in between injured witnesses Ms. Geeta and Smt. Dhapur and all the accused appellants for offence under Section 447 and 323 I.P.C. but no compromise was arrived with PW-1 Kumbha Ram and PW-21 Smt. Paru, brother and wife of deceased Hanuman Ram. 25. We have considered the above admitted facts for the purpose of assessing the evidentiary value of the statement of prosecution witnesses, we are of the opinion that although occurrence took place on 27.08.2006 but this Court cannot loose sight of the fact that deceased Hanuman Ram died after 16 days of the occurrence and the allegation of the prosecution is that 12 named persons along with 20-25 other persons came on the spot and made quarrel in which the injuries were caused to many persons including deceased Hanuman Ram. Upon the statement of PW-1 Kumbha Ram and PW-21 Smt. Paru whose testimoney is relied upon by the trial Court, we are of the opinion that it is not a case in which it can be said that the prosecution has proved its case for offence under Section 302 I.P.C. or Section 302 read with Section 149 I.P.C. beyond reasonable doubt. There was no personal enmity in between the parties and admittedly the quarrel was with regard to the land. There was no personal enmity in between the parties and admittedly the quarrel was with regard to the land. As per the statement of PW-16 Narayan Lal Patwari, the villagers were objecting action of complainant party for taking forcible possession of the land and it was the cause for the quarrel, therefore, we are of the opinion that the finding given by the trial Court with regard to commission of offence under Section 302 against accused appellant No. 1 Sad Ram and finding with regard to offence under Section 302 read with Section 149 I.P.C. against all the other accused persons is totally unfounded and not based upon reliable evidence, therefore, the finding given by the trial Court with regard to offence under Section 302 I.P.C. against accused appellant No. 1 Sad Ram and offence under Section 302 read with Section 149 I.P.C. against all the other accused appellants is not sustainable in law for the simple reason that it is a case of culpable homicide not amounting to murder, therefore, all the accused appellants may be acquitted from the charges levelled against them for offence under Section 302 and offence under Section 302 read with Section 149 I.P.C. We have examined the evidence for commission of offence. In our opinion, it is a case of inflicting one lathi blow by accused appellant No. 1 Sad Ram upon the head of deceased Hanuman Ram, which is cause of death but admittedly occurrence took place on 27.8.2006 and deceased Hanuman Ram died on 11.09.2006. Meaning thereby, the injury inflicted by accused appellant No. 1 Sad Ram was not serious in nature and it can be gathered from the fact that there was no intention of accused party to kill the deceased Hanuman Ram but as per the medical report, Hanuman Ram died due to said injury, therefore, it is a case of culpable homicide not amounting to murder. It is also admitted fact of the case that so called injury inflicted upon the head of deceased Hanuman Ram by accused appellant No. 1 Sad Ram was inflicted by lathi and lathi is a blunt weapon, therefore, even if it is presumed, one lathi blow was inflicted by accused appellant No. 1 Sad Ram, then also the case does not travel beyond Section 304 Part-II of I.P.C. 26. In view of above discussions, we hold that the accused appellant Sad Ram has wrongly been convicted for offence under Section 302 I.P.C. but he is guilty of offence under Section 304 Part-II I.P.C. Our above finding is supported by judgment of Hon'ble Supreme Court reported in 2009 (15) SCC 635 , (Gurmukh Singh v. State of Haryana) , wherein following adjudication was made by Hon'ble Supreme Court:- "......Considering the factual background in the case at hand it will be appropriate to convict the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has been done by the trial court and affirmed by the High Court. Custodial sentence of eight years would meet the ends of justice. The appeal is allowed to the aforesaid extent. 21. In the instant case, the occurrence had taken place at the spur of the moment. Only the appellant Gurmukh Singh inflicted a single lathi blow. The other accused have not indulged in any overt act. There was no intention or pre- meditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature. 22. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under section 302 IPC, but the appropriate section under which the appellant ought to be convicted is section 304 Part II IPC. 27. In the judgment reported in 2009 SC 2447 (Ramesh Kumar @ Toni v. State of Haryana) , following adjudication has been made in para No. 9, which reads as under:- "9. We find that the prosecution story itself spells out that all these conditions are satisfied in the resent case. As per the eye-witnesses, P.W.8 and P.W.9, the incident had happened when the deceased accompanied by the two witnesses were passing through the vacant field of the accused, the appellant had abused him for having entered his field on which the deceased had also abused the appellant. It appears that it was after this altercation that the appellant inflicted a spade (kassi) blow on the head of the deceased. We also see from the prosecution evidence that though the fields of the two parties were adjacent to each other, no quarrel of any kind had earlier taken place. It appears that it was after this altercation that the appellant inflicted a spade (kassi) blow on the head of the deceased. We also see from the prosecution evidence that though the fields of the two parties were adjacent to each other, no quarrel of any kind had earlier taken place. In this view of the matter, we are of the opinion that the case of the appellant would fall under Exception 4 and be punishable under Section 304, Part I of the IPC as a single injury had been inflicted on the head of the deceased." 28. Similarly, in the judgment reported in 2000 (1) SCC 55 (Sasi v. State of Kerala) , following adjudication was made by Hon'ble Supreme Court:- ".... As has been stated earlier, the accused was not the owner of the property but was a mere labourer and, when the deceased and other members of his party had entered upon the land of the accused where the appellant was working as a labourer, he had given one blow which no doubt struck on the vital part of the body. But it is not possible to hold that he inflicted the blow with the intention of causing death of the deceased. Consequently, the offence should be one under Part II of Section 304 IPC and not under Part I. We, therefore, in modification of the judgment of the High Court, convict the appellant under Section 304 Part II IPC and sentence him to undergo rigorous imprisonment for four years." 29. With regard to other co-accused appellant Nos. 2 to 12, we are of the opinion that they are not guilty of offence under Section 302 read with Section 149 I.P.C. 30. In view of above discussions, the sentence awarded to the accused appellant No. 1 Sad Ram for offence under Section 302 I.P.C. and sentence awarded to all other accused appellant for offence under Section 302 read with Section 149 I.P.C. are hereby quashed and set aside. Consequently, the judgment impugned dated 15.09.2008 passed by Addl. Sessions Judge (FT) Balotara Headquarter Barmer is modified in the manner that the accused appellant No. 1 is hereby held guilty for offence under Section 304 Part-II I.P.C. and he is hereby convicted for imprisonment of seven years and fine of Rs. Consequently, the judgment impugned dated 15.09.2008 passed by Addl. Sessions Judge (FT) Balotara Headquarter Barmer is modified in the manner that the accused appellant No. 1 is hereby held guilty for offence under Section 304 Part-II I.P.C. and he is hereby convicted for imprisonment of seven years and fine of Rs. 3000/- and all accused appellants are hereby held guilty for offence under Section 323 read with Section 147 and 148 I.P.C., therefore, their sentence is reduced to already undergone while maintaining the order of fine imposed by the trial Court for offence under Section 323 I.P.C. All the accused appellants are hereby acquitted from the charges levelled against them for offence under Section 447 I.P.C.The appeal is party allowed in above terms.Appeal partly allowed. *******