JUDGMENT 1. - This appeal was filed by the eleven appellants named in the title of this judgment against the judgment dated 29.04.2010 passed by the Additional Sessions Judge (Fast Track) No.2, Bikaner in Sessions Case No.116/2003 titled as State of Rajasthan v. Rameshwar Lal & Ors. The said court had convicted and sentenced the appellants as follows:- 1. Rameshwar Lal @ Fauji:- 302 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 2. Gopal Ram: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 3. Sahi Ram: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 4. Bhajna Ram: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 5. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 5. Bhagirath: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 6. Sukhram: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 7. Mokhram: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 3/25 Arms Act Two years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 8. Bajrang Lal: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 3/25 Arms Act Two years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 9. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 3/25 Arms Act Two years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 9. Pradeep Kumar: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 10. Birbal Ram: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 11. Chaina Ram: 302/149 I.P.C. Life imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 307/149 I.P.C. Ten years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 2. The appellant Rameshwar Lal is said to be in Jail since the date of his arrest i.e. 09.04.2002 but four times he was granted interim bail totalling to 42 days in all. Other remaining ten appellants were on bail during the trial but they are also said to be in Jail since the date of judgment of the trial court viz 29.04.2010. 3. Other remaining ten appellants were on bail during the trial but they are also said to be in Jail since the date of judgment of the trial court viz 29.04.2010. 3. The substance of the arguments on behalf of the appellants is to the effect that if the acquittal is not justifiable even then at the most a case of section 304 Part-I of IPC may be made out against the accused-appellant Rameshwar Lal and other appellants may be punished at the most for their individual acts because no common object to cause death of Shanker Lal is on record against them and so it has been prayed that all the appellants be released on undergone sentence by converting their convictions from the charges of section 302 IPC or 302/149 IPC to other sections of IPC as may be made out from the evidence led by the parties in the case. 4. The appellants rely upon the following three judgments of the Hon'ble Apex Court:- (1) Criminal Appeal No.885/2007 State of Rajasthan v. Manoj Kumar decided by the Apex Court on 11.04.2014. (2) Criminal Appeal No.2114/2009 Ram Pal Singh v. State of U.P. Decided by the Apex Court on 24.07.2012. (3) Criminal Appeal No.1695/2005 Manjeet Singh v. State of Himachal Pradesh decided by the Apex Court on 25.04.2014. 5. We have perused the principles of law laid down in the aforesaid rulings respectfully. There is a very fine line of distinction between the cases falling under section 302, 304 Part-I and 304 Part-II IPC. Virtually, culpable homicide is genus and 'murder' is its species. All 'murder' is 'culpable homicide' but not vice-versa. 'Culpable homicide' may be or may not be amounting to 'murder in terms of section 300 IPC, 'murder is punishable under section 302 IPC but when the offence is 'culpable homicide' not amounting to 'murder' then punishment would be dealt with under section 304 IPC. 6. Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to 'murder'. It is also 'murder' when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to a 'culpable homicide amounting to murder'. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre-mediation. Where the offender whilst being deprived of the power of self-control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, 'culpable homicide would not amount to 'murder' This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case. 7. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed. 8. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to search for any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. It is neither advisable nor possible to search for any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. We will have to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused. 9. After examining the principles of law applicable in the matter, we are supposed to apply these principles on the facts of the present case. Facts of the case have been well elaborated in the pains taking judgment written in 127 pages by the trial court. We will not re-appreciate the facts here which are not much in dispute. In the present case, it can be said that it is not a case of previous animosity. There is nothing on record to show that relations between the parties were not cordial. There was no intention on the part of the appellant Rameshwar Lal to kill Shanker Lal. The accused party was not in knowledge of the fact that ten or twelve persons of complainant party will come to grab the possession of disputed land. Perhaps both parties wanted to illegally procure its possession. The entire incident happened within a very short span of time. An altercation must have taken place in the spur of the moment because the complainant party as well as the accused party both were interested in illegally grabbing the possession of the disputed plot of the land which was said to be in the ownership of some 'Rugha'. It is surprising to note that the said 'Rugha' has not been produced as a witness either by the prosecution or by the defence. The appellants claimed to have a settled possession of the disputed plot of the land but no such proof is on record and from the evidence, it appears that the complainant party had gone to the spot to grab the possession of the disputed land by force of man power. It appears that both the parties were determined to have possession of the disputed land by all means and in this dispute, the appellants party suddenly started fire in which one person of the complainant party was killed and other persons of the complainant party were injured. It appears that both the parties were determined to have possession of the disputed land by all means and in this dispute, the appellants party suddenly started fire in which one person of the complainant party was killed and other persons of the complainant party were injured. All of them have simple injuries by pellets. It is also pertinent to mention here that two injured persons of the complainant party whose names were in the list of prosecution witnesses in the charge sheet were not produced by the prosecution in the trial court and they have been examined by the defence as defence witnesses and they have supported the defence story. Perhaps both the sides had hired the services of persons of land mafia gang. 10. The evidence examined in its entirety shows that without any premeditation, the appellants committed the offence. The same, however, was done with an intention to cause bodily injury which could result into death of Shanker Lal. 11. The appellant Rameshwar Lal @ Fauji must have known the consequences of using 12 bore single barrel gun. He had not fired indiscriminately but took clear aim at Shanker Lal and thus, his case is not because of knowledge simpliciter but that of intention ex-facie. The act of appellant Rameshwar Lal in causing death of Shanker Lal by gun fire comes within the ambit of section 304 Part-I of IPC because as per exception-4 to section 300 IPC 'culpable homicide' is not 'murder' if it is committed without premeditation in a sudden fight in the heat of passion upon sudden quarrel and without the offenders is having taken undue advantage or acted in a cruel or unusual manner'. As per the explanation given under exception-4 to section 300 IPC, it is immaterial in such cases which party offers the provocation or commits the first assault. The offence is punishable under section 304 Part-I IPC as 'culpable homicide' not amounting to 'murder', if the act by which death, is caused is done with intention of causing death or of causing such bodily injury as is likely to cause death in cases of culpable homicide not amounting to murder. 12. As per the prosecution story, accused-appellant Rameshwar Lal had fired from his gun on Shanker Lal causing his death. 12. As per the prosecution story, accused-appellant Rameshwar Lal had fired from his gun on Shanker Lal causing his death. In the circumstances of the case, after perusal of the statements of all the eye witnesses i.e. Jagdish S/o Pancha Ram, Mangi Lal, Tola Ram, Dinesh Kumar, Banshi Lal, Mohan Lal and Hemraj, it can safely be said that conviction of accused-appellant Rameshwar Lal deserves to be converted from 302 IPC to 304 Part-I of IPC. His conviction under section 307/149 and 148 IPC and section 5/27 of the Arms Act has not been seriously challenged in this appeal so his conviction on account of these charges was not to be disturbed in this appeal but section 308 IPC provides that whoever does any act with such an intention or knowledge, under such circumstances that if he by that act causes death, he would be guilty of 'culpable homicide ' not amounting to murder and shall be punishable under section 308 IPC. Illustration given under section 308 IPC states that if any person on grave and sudden provocation, fires a pistol at another person, under the circumstances that if he thereby causes death, he would be guilty of 'culpable homicide' not amounting to murder and he will be punished under section 308 IPC. Accordingly, conviction awarded to all the appellants under section 307/149 IPC deserves to be changed to section 308/149 IPC. 13. Now comes, conviction of other appellants. All other appellants have been convicted under section 302/149 IPC for death of Shanker Lal but when the main accused-appellant Rameshwar Lal has been convicted only under section 304 Part-I of IPC then other ten appellants (Appellant No.2 to 11) cannot be convicted under section 302/149 IPC so their conviction is also altered from 302/149 IPC to 304 Part-I IPC read with section 149 IPC. 14. All the appellants have also been convicted under section 307/149 and 148 IPC, the conviction of the appellants on these counts, though, has not been seriously challenged by the appellants in this appeal. All the eye witnesses named hereinbefore have supported the prosecution story. Postmortem report of Shanker Lal and injury reports of Mangi Lal, Mamraj, Dinesh, Satyanarayan, Ram Kishan, Prem Prakash, Mool Chand, Udai Singh, Vikash and Jagdish have been duly proved by the statements of PW4 Dr. P.N. Mathur, PW14 Dr. M.G.Bhattar, PW5 Dr.G.L.Meena and PW9 Dr. M.C. Bhawerwal. All the eye witnesses named hereinbefore have supported the prosecution story. Postmortem report of Shanker Lal and injury reports of Mangi Lal, Mamraj, Dinesh, Satyanarayan, Ram Kishan, Prem Prakash, Mool Chand, Udai Singh, Vikash and Jagdish have been duly proved by the statements of PW4 Dr. P.N. Mathur, PW14 Dr. M.G.Bhattar, PW5 Dr.G.L.Meena and PW9 Dr. M.C. Bhawerwal. We have perused the statements of all the thirty five witnesses of the prosecution as well as ten witnesses of defence. We have perused injury reports and X-ray reports viz Ex.11, Ex.15, Ex.12, Ex.13, Ex.17, Ex.14, Ex.16, Ex.79, Ex.22, Ex.80, Ex.81, Ex.50, Ex.82, Ex.54, Ex.83, Ex.52, Ex.84, Ex51, Ex.18, Ex.19, Ex.20, Ex.23, Ex.24 to Ex.43, Ex.21, Ex.22, Ex.53 & Ex.55 to Ex.78 and we are of the opinion that all the simple injuries caused to the complainant party have been duly proved by the statements of the injured prosecution witnesses and the statements of the doctors concerned. 15. For the reasons mentioned earlier, conviction of all these ten appellants under Section 307/149 IPC is also hereby converted under Section 308/149 IPC and conviction under Section 148 IPC is left undisturbed. The conviction of seven appellants under section 5/27 of the Arms Act, 1959 has not been seriously challenged by those appellants. Similarly, the conviction of the appellant Bajrang Lal and Mokhram under section 3/25 of the Arms Act has also not been seriously challenged in this appeal. So the conviction on these counts is left undisturbed. 16. Hence, this appeal of the eleven appellants (1) Rameshwar Lal@ Fauji, (2) Gopal Ram, (3) Sahiram, (4) Bhajna Ram, (5) Bhagirath, (6) Sukhram, (7) Mokhram, (8) Bajranglal, (9) Pradeep Kumar, (10) Birbalram and (11) Chainaram deserves to be partly accepted and same is hereby partly allowed by modifying the conviction and sentences awarded by the trial court as follows:- 1. Rameshwar Lal @ Fauji:- 304 Part-I I.P.C. Ten years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 2. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 2. Gopal Ram: 304 Part-I read with section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 3. Sahi Ram: 304 Part-I read with Section 149 I.P.C. Three years Rigorous imprisonment with section L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 4. Bhajna Ram: 304 Part-I read with Section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 5. Bhagirath: 304 Part-I read with section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 6. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 6. Sukhram: 304 Part-I read with section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 7. Mokhram: 304 Part-I read with Section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 3/25 Arms Act Two years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 8. Bajrang Lal: 304 Part-I read with section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 3/25 Arms Act Two years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 9. Pradeep Kumar: 304 Part-I read with section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 10. Birbal Ram: 304 Part-I read with section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 11. Chaina Ram: 304 Part-I read with section 149 I.P.C. Three years Rigorous imprisonment with L 25000/- fine and in default of payment of fine, two years simple imprisonment. 308/149 I.P.C. Two years simple imprisonment with fine of L 10,000/-, in default of payment of fine one year simple imprisonment 148 I.P.C. Two years simple imprisonment with L 3000/- fine and in default of payment of fine six months simple imprisonment. 5/27 Arms Act Three years simple imprisonment with fine of L 5000/- and in default of payment of fine six months simple imprisonment. 17. The amount of fine, if deposited, will go to the wife (or children, if wife is not alive) of deceased Shanker Lal. 18. The substantive sentences of each of the appellants for all charges shall run concurrently. The appellants shall be entitled to the benefit of section 428 Cr.P.C. as per the procedure. A copy of this judgment be sent immediately to the wife of the deceased Shanker Lal and to the concerned Jail where the accused-appellants are serving their sentence. The record of the lower court be returned with a copy of this judgment within three days.Appeal partly allowed. *******