JUDGMENT 1. This appeal is directed against the judgement of the learned 1 Additional Sessions Judge (Fast Track), Alwar dated 26.8.2003 who thereby convicted the accused - appellant Lallu Ram for offence under section 302 IPC and sentenced him to life imprisonment with fine of Rs. 5,000, in default whereof, he was to further undergo rigorous imprisonment of one year and also 5 convicted him for offence under section 447 IPC and sentenced him to rigorous imprisonment of three months. Both the sentences were ordered to run concurrently. 2. A trifle incident of two children plucking two flowers of mustard, while they were coming from school to their house, from the agriculture field of the 10 accused Lallu Ram led to the unfortunate incident of altercation between the two families and eventual death of Manglya. 3. Three accused namely, accused - appellant Lallu Ram, Maniya Ram and Mst. Sharda were charge sheeted for the incident. Though the other two were acquitted, the accused - appellant alone was convicted, who is up in the appeal before us against the aforesaid judgement. 4. Pappu Ram (PW 1) submitted a written report (Ex.P1) to SHO, PS. Malakhera on 5.12.2002 with regard to incident of 4.12.2002 inter alia alleging that around 4.30 PM on the previous day, his two small children Ramesh and Braj Lal were coming from their school towards their house. On the way % adjacent to the agriculture field of the complainant party, Maniya Ram S/o Lallu Ram, Lallu Ram S/o Kala, Mst. Sharda W/o Maniya Ram and Mst. Bhauti W/o Lallu Ram, all by caste Mali, resident of Village Barkhera started beating them. On hearing their hue and cry, the informant, his aunt Laxmi W/o Ramjilal, Dholi W/o Mangtu, Manglya S/o Narayan rushed there. They forbade 2 the accused, which further infuriated them, who were armed with lathi and tanchiya. They started beating Laxmi, Dholi and Manglya. Lallu Ram inflicted a blow by tanchiya on the head of his father Manglya and on the right hand of Laxmi, whereas Maniya Ram hit Mst. Dholi with fist and kicks. On hearing their hue and cry, Mangtu Ram S/o Khairati and Ramotar S/o Ramjilal and certain : other persons came there and saved them. His father Manglya has been referred to Government Hospital, Alwar. It is therefore prayed in the complaint that the action may be taken against the culprits. 5. Dholi with fist and kicks. On hearing their hue and cry, Mangtu Ram S/o Khairati and Ramotar S/o Ramjilal and certain : other persons came there and saved them. His father Manglya has been referred to Government Hospital, Alwar. It is therefore prayed in the complaint that the action may be taken against the culprits. 5. A regular first information report was registered with Police Station Malakhera for offence under section 341/323 IPC and injured were medically examined. Manglya who was admitted in Government Hospital, Alwar, was further referred to SMS Hospital, Jaipur. However he died during treatment on 7.12.2002 at Jaipur and the offence under section 302 IPC read with Section 34 of IPC was also added. The police after investigation filed challan against the three accused named above for offence u/ss. 323, 341 and 302/34 of IPC. The case was committed for trial to the Court of Sessions whereform it was made over to the Additional Sessions Judge (Fast Track), Alwar. The learned trial court framed charges against the accused - appellant for offence u/Ss. 302, 447 and 323/34 and for offence u/Ss. 323/34 and 457 against co - accused Maniya Ram and Sharda. The accused denied the charges and claimed trial. The prosecution In support of its case produced 18 witnesses and exhibited as many as 20 documents. The accused In their examination under Section 313 Cr.Rp. denied every circumstance put to them and alleged false implication. The accused In their defence produced three witnesses and exhibited five documents. The learned trial court after conclusion of the trial acquitted the other accused, but convicted the accused - appellant Lallu Ram. Hence this appeal. 6. Shri Deepak Kumar Sharma, learned counsel appearing on behalf of Shri K.R. Rao for the accused - appellant argued that accused - appellant has been falsely implicated in the present case. He in his statement under Section 313 Cr.P.C. has taken a categorical defence that the complainant party blocked their water supply from the pipeline. When they objected to the same, ten persons including complainant attacked him. Mangtu at that stage tried to inflict a lathi blow on him, which incidentally hit the deceased Manglya on head. Accused-appellant has been falsely Implicated. In fact, Pooran, Mangtu, Mukesh, Ramjilal, Ramotar, Pappu, Manglya, Dholi, Dhanbal, Laxmi, Kaushliya and Fali were responsible for the incident. Accused was forcibly lifted by Dhanpal, Kailash and Lalluram and Hari. Mangtu at that stage tried to inflict a lathi blow on him, which incidentally hit the deceased Manglya on head. Accused-appellant has been falsely Implicated. In fact, Pooran, Mangtu, Mukesh, Ramjilal, Ramotar, Pappu, Manglya, Dholi, Dhanbal, Laxmi, Kaushliya and Fali were responsible for the incident. Accused was forcibly lifted by Dhanpal, Kailash and Lalluram and Hari. Learned counsel argued that this defence of the accused has been probabllshed from the defence witnesses Hari Ram (DW 1), Pooniya Ram (DW 2) and Bannu Ram (DW 3). The learned trial court has completely brushed aside the defence version and gone on to convict the accused-appellant mechanically by placing reliance on the statements of prosecution witnesses. Learned counsel submitted that Pappu Ram (PW-1) in the FIR himself stated that he had gone to Alwar for his daily earnings and learnt about the incident only when he returned from Alwar in the evening. This witness also in the Court statement stated that Mangtu told him in the hospital at Malakhera as to who inflicted what injury on which of the injured. Learned counsel submitted that Laxmi (PW-2) does not give any specific evidence against the accused-appellant. Her statement was with respect to her own injuries inflicted by other accused. She stated that Ramesh and Braj Lal were coming from the school and plucked the mustard flowers from agriculture field of the complainant, on which Sharda, Lallu and Maniya objected and when Manglya came to save them, all three of them caught hold of him. But then in later part of statement she has stated that these three accused started beating her and Sharda inflicted an injury with the use of Dantla on his/(her) hand and Lallu inflicted a tanchiya blow on her head whereby she became unconscious and then what happened is not known to her. Learned counsel argued that this injured did not receive any injury on her head and only one injury that she has received is an abrasion on her right forearm, which is simple by blunt weapon. This witness cannot, therefore, be believed because she is making lot of exaggeration in her statement. 7. Learned counsel argued that this injured did not receive any injury on her head and only one injury that she has received is an abrasion on her right forearm, which is simple by blunt weapon. This witness cannot, therefore, be believed because she is making lot of exaggeration in her statement. 7. Shri Deepak Kumar Sharma, learned counsel also referred to the statement of Smt. Kaushliya (PW 4) and Smt. Dholi (PW 5) and argued that these two witnesses though claim to be eye witnesses, but they have not been mentioned as such in the written report submitted by Pappu Ram (PW 1). They have been subsequently implanted as eye witnesses, but it appears that they arrived at the place of incident after it had already taken place. Their testimony therefore cannot be believed. Mangtu (PW 7) and Ramotar (PW 8) though described in the written report as eye witnesses, but their statement also does not inspire any confidence. They also stated that the incident took place when the children of the informant Ramesh and Braj Lal while coming from the school were passing through the boundary (doli) of the agriculture field of the complainant (sic. accused) party and plucked mustard flowers, on which Maniya Ram and Sharda, members of the complainant/(accused) party, started abusing them, who then started weeping. Manglya then reached there, who was suddenly attacked by Sharda and Maniya and Lallu Ram. It is alleged that Lallu Ram was armed with tanchiya and others with lathis. While Maniya caught hold of Manglya, Lallu Ram inflicted a blow by tanchiya on the right side of the head above the ear of Manglya, as a result of which he became unconscious. Similar statement of Ramotar (PW 8) cannot be believed because he had stated that when incident took place Laxmi (PW 2) was working on agriculture field and she was standing at a distance from the agriculture field from the place of incident. He reached the place of incident after hearing hue and cry. This witness has also tried to improve upon his version by stating that he saw Maniya and Sharda caught hold of Manglya and Lallu Ram hit with tanchiya on right side of head just above the ear of Manglya and Sharda inflicted a blow by a tanchiya on the right hand of Laxmi. This witness has also tried to improve upon his version by stating that he saw Maniya and Sharda caught hold of Manglya and Lallu Ram hit with tanchiya on right side of head just above the ear of Manglya and Sharda inflicted a blow by a tanchiya on the right hand of Laxmi. It is argued that the recovery of tanchiya from the accused-appellant is highly doubtful because Harbux (PW 3) witness of recovery has stated that the accused did not take out the tanchiya in his presence from the place of recovery. It was only the recovery memo (Ex. P5) which was prepared in his presence, but he cannot say where the site plan (Ex.P6) was prepared. 8. Shri Deepak Kumar Sharma, learned counsel submitted that, in any case, the incident had taken place on the spur of the moment on a very trifle issue where two small children as alleged plucked two mustard flowers from the agriculture field of the complainant party. When they were beaten by the members of the complainant party, hearing them cry, the deceased Manglya went to save them, who was suddenly attacked by the accused-appellant. It is argued that the fact that the accused had tanchiya at the time of incident cannot be basis to hold that he had pre-plan to murder the deceased Manglya because even as per the case of the prosecution, the accused appellant was at that time in his agriculture field, which was only two fields away from the agriculture field of the deceased, therefore, the fact that he had tanchiya in the agriculture field would not be unnatural. The case would hardly travel beyond the scope of Section 304 Part-II IPC. The learned trial court has already disbelieved the part of version of the prosecution witnesses with respect to co-accused Maniya Ram and Sharda and acquitted them. In the present case, the accused-appellant has already remained in jail for more than 10 years and 4 months and therefore the conviction of the appellant deserves to be altered from Section 302 to Section 304 Part-II IPC for which he may be sentenced to the period already undergone by him. 9. In the present case, the accused-appellant has already remained in jail for more than 10 years and 4 months and therefore the conviction of the appellant deserves to be altered from Section 302 to Section 304 Part-II IPC for which he may be sentenced to the period already undergone by him. 9. Shri Javed Choudhary, learned Public Prosecutor for State opposed the appeal and submitted that even if Pappu Ram (PW 1), informant is not accepted as an eye witness, Laxmi (PW 2), who is injured has to be accepted as an eye witness. Learned Public Prosecutor submits that Kaushliya (PW 4) has also categorically alleged that on hearing hue and cry she reached the place of incident and witnessed that Lallu inflicted a blow of tanchiya on right side of the head of the deceased immediately above the ear. Similar statement has been made by Dholi (PW 5), Mangtu (PW 7) and Ramotar (PW 8), which have been disbelieved by the trial court because their names were mentioned in the written report. It cannot therefore be alleged for them that they were subsequently planted as eye witnesses They had consistently maintained that It was the accused - appellant Lallu Ram, who inflicted a blow of tanchiya close to the ear on the right side of the head of deceased. Receiving such Injury, Manglya became unconscious and was taken to Malakhera Hospital by jeep wherefrom he was referred to Government Hospital, Alwar and then to SMS Hospital Jaipur where ultimately he died. 10. Learned Public Prosecutor also referred to the statement of Pooniya (PW 9) and the child witnesses Ramesh (PW 10) and Braj Lal (PW 11) and argued that these witnesses also prove that it was the accused-appellant Lallu Ram, who alone was responsible for the killing of the deceased. Learned Public Prosecutor referred to the statement of Dr. Rakesh Sharma (PW 12), who prepared the injury report of the deceased Ex.P9 and injury report of injured Laxmi Ex.PIO. Learned Public Prosecutor also referred to the statement of Hameed Khan (PW 14), the Assistant Sub-Inspector, who investigated the matter, has proved the site plan (Ex.P7) and exhibits of recovery. 11. Lastly, learned Public Prosecutor has referred to the statement of Dr. Learned Public Prosecutor also referred to the statement of Hameed Khan (PW 14), the Assistant Sub-Inspector, who investigated the matter, has proved the site plan (Ex.P7) and exhibits of recovery. 11. Lastly, learned Public Prosecutor has referred to the statement of Dr. Shiv Ratan Kochhar (PW 16), who conducted the postmortem and argued that this witness has proved that there was fracture of fronto-temporal bone of the deceased, which had gone across the head upto middle cranial portion. It was argued that there is no case for converting the conviction rom Section 302 IPC to one under section 304 Part-II because the accused-appellant had by use of excessive force inflicted a blow of tanchiya on the head of deceased leading to his death had requisite intention as well as knowledge to murder him. The appeal therefore deserves to be dismissed. 12. We have given our anxious consideration to the rival submissions and perused the material on record. 13. The statement of above witnesses which have been extensively referred to by both the learned counsel for the accused - appellant as well as the learned Public Prosecutor if analysed in the light of discussion in the impugned order clearly indicate that those witnesses have been believed. We find that the learned trial court in para 18 of the judgement has believed Laxmi (PW 2), Ramesh (PW 10) and Braj Lal (PW 11) as those who could be naturally present at the seen of occurrence. Though it has not completely believed the version of Kaushliya (PW 4), Dholi (PW 5), Mangtu (PW 7), Ramotar (PW 8), Pooniya (PW 9) with respect to allegations against co-accused Maniya and Sharda, who have been acquitted, but the learned trial court has gone on to believe the version of eye witnesses referred to above. Impugned judgement to the extent of holding the accused - appellant guilty for offence of culpable homicide amounting to murder and convicting him for offence under section 302 IPC is based on findings recorded by the learned trial court in para 18, but not in a satisfactory manner. Impugned judgement to the extent of holding the accused - appellant guilty for offence of culpable homicide amounting to murder and convicting him for offence under section 302 IPC is based on findings recorded by the learned trial court in para 18, but not in a satisfactory manner. The trial court has omitted to examine that the incident in the present case had taken place on a very trifle issue when the two small children of informant namely, Ramesh (PW 10) and Braj Lal (PW 11) while passing through the boundary wall (doli) between the two agriculture fields plucked two mustard flowers from the agriculture field of the complainant/(accused) - party. This was seriously objected to by the complainant/(accused) party. The children Ramesh (PW-10) and Braj Lal (PW-11) at the time of incident were aged 11 and 9 years respectively. They stated that when they were coming from school and going towards their house, Braj Lal had plucked two mustard flowers from the agriculture field of accused-appellant Lallu Ram and Lallu Ram started abusing them. The children started crying, hearing which their uncle Ramotar, aunt Dholi, grandmother Laxmi and grandfather Manglya came there. Accused - appellant Lallu Ram suddenly inflicted a tanchiya blow near left ear on the head. This 1 version as given by the children, more or less, has been corroborated by other prosecution witnesses, some of whom have not been partly believed including Laxmi (PW-2), Kaushliya (PW 4), Dholi (PW 5), Mangtu (PW 7) and Ramotar (PW 8). These witnesses have not been believed in respect of co-accused 5 whom the trial court has acquitted. But all these witnesses are consistent In their statement that the incident took place on a small issue of children plucking the mustard flowers from the agriculture field of the complainant/(accused) party and, in fact, it is only one child Braj Lal (PW-11), who plucked the flowers, which was seriously objected to by the 10 complainant/(accused) party and this led to unfortunate death. 14. 14. We are not persuaded to accept the defence put forth by the complainant, which has been rightly disbelieved by producing Pappu (PW-1), Laxmi (PW 2) and Harbux (PW 3) because none of them gave their statement to the police giving such version, yet we are persuaded to hold that in the 15 facts of the case, keeping in view the manner in which the incident has taken place and the nature and number of injury being only one led to death of deceased, this case cannot be held as a case of culpable homicide amounting to murder as the case would fall within exception (4) of Section 300 of IPC which inter alia provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The evidence in the present case clearly suggests that incident took place on a trifle issue without any premeditation resulting into sudden fight in the heat of passion upon a sudden quarrel and the 2 accused-appellant cannot be held to have taken any undue advantage or acted in a cruel or unusual manner because there is only one injury which had been caused on the head of deceased which led to his death and the accused-appellant did not repeat the injury. It was a sudden fight which took place at the spur of moment. The fact that the accused-appellant had tanchiya would not be unnatural considering that he was also present in the nearby agriculture field just two fields away from that of the complainant party. However, considering nature of injury and the extent of the damage caused to the brain of the deceased, such injury was caused with the intention of causing death in the meaning of Part-I of Section 304 of IPC. We are therefor persuaded to set aside the impugned order of conviction under section 302 of IPC and convert the same into one under Section 304 Part I while maintaining the conviction under section 447 of IPC. The appellant is already in jail for more than 10 years and 4 months, therefore, he is sentenced to the period already undergone by him. 15. The appeal is accordingly disposed of. The appellant is already in jail for more than 10 years and 4 months, therefore, he is sentenced to the period already undergone by him. 15. The appeal is accordingly disposed of. The accused Lallu Ram, if he is not required to be detained in any other case, may be released forthwith. 16. Keeping, however, in view the provisions of Section 437A of the Code of Criminal Procedure, the appellant Lallu Ram is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/ - and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court.Appeal disposed of. *******