JUDGMENT 1. - This appeal was filed by accused-appellants (1) Dharma Ram s/o Kishnaji and (2) Chaina Ram s/o Dharma Ram, both by-caste Girasia residents of Jhamela Phali Peepla, Tehsil Bali, District Pali. Both the appellants in this appeal have challenged the judgment dated 13.10.2014 passed in Sessions Case No. 60/2005 of the court of Additional Sessions Judge(Fast Track), Bali, District Pali, whereby both the accused-appellants were convicted under Section 302/34 of Indian Penal Code by life imprisonment with a fine of Rs. 5,000/- and in default of payment of fine, each of the accused-appellants was ordered to serve one year's additional imprisonment. 2. When the appeal was filed, both the accused-appellants were in custody, but now one of the accused-appellants, namely,Chaina Ram is on bail, while other accused-appellant Dharma Ram is in jail. The period of custody suffered by them is said to be as follows:- (1) Accused-appellant Dharma Ram was arrested on 4.6.2005 and since then till today he is in jail. (2) Accused-appellant Chaina Ram was arrested on 10.6.2005. He was bailed out on 2.3.2006 but at the time of judgment, he was again taken in custody on 13.10.2006 and then he was enlarged on bail under Section 389 of Criminal Procedure Code on 8.2.2007. 3. In the memo of appeal, it has been argued that the judgment of the trial court is not based on facts or evidence, three assailants were named in the FIR but out of them, Roopa Ram, one of the alleged assailants was not charge-sheeted by the police, alleged extra-judicial confession before Lakha Ram and Neeba Ram has not been proved because both these witnesses have not come in the witness-box before the court, all the alleged eye-witnesses were present on the spot when the Investigating Officer had reached the spot but their statements under Section 161 of Criminal Procedure Code were not recorded on the same day and they were examined by the Investigating Officer only on the 3rd day of the incident. 4. It has further been argued on behalf of the appellants that out of the seven injuries mentioned in the Postmortem Report of Ganesh, five injuries were by sharp-edged weapons and two injuries were by blunt weapons, but the doctor has not stated that all the injuries were sufficient in the ordinary course of nature to cause death. 4. It has further been argued on behalf of the appellants that out of the seven injuries mentioned in the Postmortem Report of Ganesh, five injuries were by sharp-edged weapons and two injuries were by blunt weapons, but the doctor has not stated that all the injuries were sufficient in the ordinary course of nature to cause death. Due to cumulative effect of all the injuries, excessive bleeding occurred and because of that Ganesh has expired as per the Postmortem Report. 5. It has further been argued that accused Chaina Ram was having a 'Dhanush' with him but no pointed injury of 'Dhanush-Teer'(arrow) had been found on the body of the deceased. It has also been argued that no 'Dhanush' has been recovered from Chaina Ram and only a lathi was recovered from him and that creates doubt about his presence on the spot. 6. It has further been argued that there were so many contradictions and improvements in the statements of the prosecution witnesses which have been ignored by the trial court while convicting both the accused-appellants. Alternatively, it has been argued that if the courts comes to the conclusion that no case of acquittal is made out then both the accused-appellants should be released on undergone sentence at the most under Section 304 Part II of Indian Penal Code. 7. The learned Public Prosecutor has strongly opposed the arguments of the appellants. It has been argued by the learned Public Prosecutor that while accused persons were beating the victim Ganesh, witnesses had reached the spot and soon after their arrival, both the accused-appellants were able to escape and run away from the spot after causing death of Ganesh. It has also been argued by the learned Public Prosecutor that there was no one else who could have caused death of Ganesh in the circumstances of the case and further more, there was no reason with the witnesses to falsely implicate Dharma Ram and Chaina Ram and allowing the real culprit to escape. In the light of aforesaid arguments, we have perused the record of the trial court. Our appreciation is as under: 8. FIR Ex.P.1 was lodged in this case by PW-1 Kanti Lal who is an illiterate person. He cannot read and write as has been stated by him in his cross-examination. In the light of aforesaid arguments, we have perused the record of the trial court. Our appreciation is as under: 8. FIR Ex.P.1 was lodged in this case by PW-1 Kanti Lal who is an illiterate person. He cannot read and write as has been stated by him in his cross-examination. He states that when the accused-persons were beating his brother Ganesh then Ganesh cried for help and then his brother Mohan, Baga and Mst. Saki wife of Ganesh rushed to the spot and when they reached the spot, the assailants were able to escape from the spot after causing instantaneous death of Ganesh. In his cross-examination, he admits that report Ex.P.1 was written in the supervision of police. He admits that the police had reached the spot after about half an hour from the time when it received telephonic message from the complainant party. 9. PW-3 Mohan is brother of deceased Ganesh. He states that on that day at about 3.00 p.m., his brother Ganesh was returning from famine work assigned to him and at that time he was at his cottage situated on a nearby hill. He states that Dharma Ram, Roopa Ram and Chaina Ram, all three of them were beating his brother Ganesh and Dharma Ram was having an axe, Chaina Ram was having a 'Dhanush' and Roopa Ram was having a pointed knife in their hands. He states that when Ganesh cried for help, then he rushed to the spot along with his brother Baga Ram, his father Govind Ram and Mst. Saki(wife of Ganesh). He further states that when four of them reached the spot then the assailants ran away from the spot. He states that Mitha and Pancha and then Gajraj Singh had also come on the spot and then with the help of mobile phone of Gajraj Singh they had informed the police about the incident. This witness was confronted with his police statement because in his police statement presence of Mst. Saki wife of Ganesh with him was not mentioned. No other contradiction has come in his statement and thus, he appears to be a natural witness, though he is relative of deceased but he has innocently narrated the true story without any exaggeration or manipulation. His statement deserves to be relied upon. 10. Then comes the statement of PW-4 Baga Ram, who is also brother of deceased Ganesh. No other contradiction has come in his statement and thus, he appears to be a natural witness, though he is relative of deceased but he has innocently narrated the true story without any exaggeration or manipulation. His statement deserves to be relied upon. 10. Then comes the statement of PW-4 Baga Ram, who is also brother of deceased Ganesh. He has also been confronted with his police statement but there is no material contradiction in his statement because in his police statement also he had stated that when Ganesh cried for help, then he reached the spot along with his father Govind Ram and brother Mohan. He has clearly stated in his police statement that because of some old enmity, Dharma Ram, Chaina Ram and Roopa Ram have killed his brother Ganesh. In the opinion of this Court, PW- 4 Baga Ram is an innocent and true witness and he is also a reliable witness because he has also narrated the details of the incident without any manipulation. 11. PW-5 Mst. Saki w/o Ganesh has also stated that she had seen the accused-appellants running from the spot after killing her husband. She admits that in her police statement Ex.D.2 she had named Roopa Ram also as one of the assailants but she is unaware of the fact that police had excluded Roopa Ram from the list of assailants for the reason best known to the police. In her cross-examination, she has been proved to be a reliable and trustworthy witness. She has not deviated in her statement in court from her previous statement to the police. 12. PW-6 Govind Ram is father of deceased Ganesh. He also states that when Ganesh cried for help, he immediately rushed to the spot along with Baga Ram, Mohan and Mst. Saki. He admits that he did not chase the accused-persons who were running away after causing death of his son because the first priority for him was to attend injured Ganesh who appeared to him in a critical condition. He has also been confronted with his police statement Ex.D.3. We are convinced that there is no such material contradiction in his statement which could have affected his reliability. He has also been confronted with his police statement Ex.D.3. We are convinced that there is no such material contradiction in his statement which could have affected his reliability. Thus, this witness also proves that both the accused-appellants were directly responsible for causing death of his son Ganesh,no doubt with the help of 3rd person Roopa Ram, who had not been charged-sheeted by the police. 13. PW-10 Dr. Daulat Verma had conducted the postmortem of deceased Ganesh and he states that following injuries were found on the body of deceased:- "(1) Incised looking wound 4x1 cm bone deep with irregular edges on left temporal part of scalp. (2) Incised wound 5x1 cm muscle deep, oblique tailing upward on left cubital foss (elbow) (3) Incised wound 5x1 cm muscle deep on upper lateral part of left thigh, oblique. (4) Incised wound 4 cm, skin deep minimal gaping over left leg, medial aspect, above ankle jt. (2 inch above) (5) Lacerated wound 1.5x1 cm, bone deep above right ankle on medial aspect. (6) Incised wound 6x1.5 cm muscle deep over upper,lateral part of right leg with fracture of fibula at it upper end. (7) Bruise 4x5 cm over right temporal part of skull." 14. The cause of death of Ganesh was mentioned in Postmortem Report as hemorrhagic shock from excessive bleeding due to multiple injuries over his body. Nothing important in favour of accused-appellants has been found in the cross-examination of Dr. Daulat Verma. 15. PW-17 Teja Ram, the then S.H.O. of Police Station,Bali has proved the FIR and he has also tried to prove the recovery of 'Kulhari' from the residence of accused Dharma Ram as per information given by Dharma Ram and recovery of lathi from Chaina Ram as per information given by Chaina Ram. In the circumstances of the case, looking to the statements of the witnesses of seizure memos of 'Kulhari' and lathi and other articles and also looking to the FSL report (Ex.P.24), no much importance can be given in the circumstances of the case to the alleged recoveries of blood smeared soil, pant, baniyans, dhoti, kamij, kulhari, towel and lathi because blood group of these articles was not compared with that of deceased or accused-appellants. 16. After discussing these important witnesses,other witnesses may be summarily discussed here. PW-2 Moti Ram is a witness of seizure memo of dead body etc. 16. After discussing these important witnesses,other witnesses may be summarily discussed here. PW-2 Moti Ram is a witness of seizure memo of dead body etc. PW-7 Gajraj Singh is a person who had reached the spot a little late and he says that he had telephonically informed the police. PW-8 Sura Ram is a formal witness of Malkhana. PW-9 Moti Ram is carrier of seized articles. PW-11 Amba Lal is also a formal witness of memos of arrest of accused-appellants. PW-12 Prempal Singh is a formal winess who had registered Ex.P.15. PW-13 Arjun is a witness of seizure memo (Ex.P.16) of axe. He does not appear to be reliable witness because of many inconsistencies in his statement. PW-14 Pema Ram is a hostile witness of recovery of blood stained clothes and axe. Similarly, PW-15 Ramesh is also a hostile witness of seizure memo Ex.P.18 of lathi. 17. PW-16 Pancha Ram is also a witness who had reached the spot a little late. He states that he did not see the accused-persons beating Ganesh but he had seen them running only. 18. PW-18 Mohan Lal, L.C. is also a carrier of seized articles to FSL and he is also a formal witness. PW-19 Nimba Ram is also a hostile witness of seizure memo of lathi and clothes. PW-20 Soma is also a hostile witness, who does not corroborate his police statement Ex.P.25. 19. The accused-appellants have not tried to give any plausible explanation of their conduct before and after the incident. They have even not tried to give any possible reason for their false implication by the complainant-party. 20. In the end, looking to all the evidence available on record and particularly looking to the injuries caused to Ganesh and the manner in which the injuries were caused, it appears to be a case of culpable homicide not amounting to murder because act of both the accused-appellants appears to have been done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Culpable homicide is not murder if it is committed without premeditation in sudden fight in a heat of passion upon sudden quarrel and without the offender having taken undue advantage or acted in crucial or unusual manner. Culpable homicide is not murder if it is committed without premeditation in sudden fight in a heat of passion upon sudden quarrel and without the offender having taken undue advantage or acted in crucial or unusual manner. In such case, it is immaterial, which party offers provocation or commits the first assault. Thus, both the accused-appellants Dharma Ram and Chaina Ram should have been convicted by the trial court under part II of Section 304 of Indian Penal Code, rather than under Section 302/34 of Indian Penal Code. 21. Thus, the appeal of accused-appellants Dharma Ram and Chaina Ram deserves to be partly accepted which is hereby partly accepted and it is hereby ordered that conviction of both the accused-appellants is modified from Section 302/34 of Indian Penal Code to one under Section 304 Part II of Indian Panel Code. Both the appellants are hereby acquitted from the charge of Section 302/34 of Indian Penal Code. Under Section 304 Part II of Indian Penal Code when there is no common intention, each of the accused will have to be punished only to the extent of gravity of crime committed by him. In the present case, 'Dhanush' has not been recovered from accused-appellant Chaina Ram, so the offence committed by Dharma Ram is graver than Chaina Ram. Dharma Ram is in jail since 4.6.2005 and Chain Ram is also in jail for about twelve months. In the circumstances of the case, both the accused-appellants may be released on undergone sentence. 22. Hence it is hereby ordered that both accused-appellants Dharma Ram and Chaina Ram be released on undergone sentence. They should be released forthwith from jail if not wanted in any other case. A copy of this judgment along with the record of the case be sent immediately to the trial court within a week. Copy of this judgment should also immediately be sent to the Central Jail, Jodhpur for doing needful in compliance of this judgment.Appeal partly allowed. *******