JUDGMENT 1. - The instant Criminal Appeal has been filed by appellants (1) Haksi S/o Shri Kawa (2) Narayan S/o Shri, Haksi Ram (3) Kalu Rajendra Kumar S/o Shri Niranjan Sharma (4) Lali W/o Shri Haksi Ram, and (Ms. Hasina D/o Haksi Ram against the judgment dated 1.8.2006 passed by Additional Sessions Judge (Fast Track No. 3), Udaipur, Camp Salumber in Sessions Case No. 09/2006 where by all the accused-appellants were convicted and flowing punishment was awarded to them: 1. Haksi : Under Section 302 I.P.C. Life imprisonment with fine for L 1000/- and in default of payment of fine, further undergo six months' simple imprisonment. Under Section 148 I.P.C. One year's rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. Under Section 323/149 I.P.C. Two years' rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. 2. Narayan : Under Section 148 I.P.C. One year's rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. Under Section 323 I.P.C. Two years' rigorous imprisonment with fine of L 500/-and in default of payment of fine, further undergo three months' simple imprisonment. 3. Kalu @ Rajendra Under Section 323 I.P.C. One year's rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. Under Section 148 I.P.C. Two years' rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. 4. Smt. Lali Under Section 148 I.P.C. One year's rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. Under Section 323 I.P.C. Two years' rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. 5. Ms Hasina Under Section 148 I.P.C. One year's rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment Under Section. Under Section 323 I.P.C. Two years' rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. The accused-appellant Nos. 5. Ms Hasina Under Section 148 I.P.C. One year's rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment Under Section. Under Section 323 I.P.C. Two years' rigorous imprisonment with fine of L 500/- and in default of payment of fine, further undergo three months' simple imprisonment. The accused-appellant Nos. 2 to 5 were acquitted from the charges under Section 302/149 I.P.C. (All the sentences were ordered to run concurrently) 2. The brief facts of the case are that upon oral complaint (Exhibit P-3) dated 2.11.2005 of complainant Kauwa, and F.I.R. was came to be registered at Police Station Pahada District Udaipur for the offences under Sections 147, 148,302, 323/149 I.P.C. against all the five accused-appellants. In the F.I.R., it was alleged that on 2.11.2005 at about 3.00 P.M. the complainant Kauwa and his son Harish were in their house and the house of the complainant's brother Walji is situated near to his house, where the brother of the complainant Walji, his wife Smt Utali his elder brother Hurji and Smt. Semli are residing. On the date of occurrence the appellants Haksi armed with axe (Kulhari), Narayan armed with iron rod, Kalu armed with lathi, Smt. Lali and Ms. Hasina having pieces of stone in their hands entered in the house of the Walji and started quarrelling with them and upon hearing noise, the complainant PW-I Kauwa and his son PW-2 Harish rushed to the house of Walji where they saw that in the house of his brother, all the five accused-appellants were beating his elder brother Hurji by axe (kulhari), iron rod, lathi and stones. 3. As pert the allegation in the F.I.R. the accused-appellant Haksi inflicted injury by axe. Accused-appellant Naryan inflicted injury by iron rod upon the neck and Kalu inflicted injury by lathi upon the person of deceased Hurji and other two appellants Lali and Hasina inflicted injuries by stones and upon receiving such injuries, blood started oozing from the head of the deceased Hurji and due to the injuries, he died on the spot. Accused-appellant Naryan inflicted injury by iron rod upon the neck and Kalu inflicted injury by lathi upon the person of deceased Hurji and other two appellants Lali and Hasina inflicted injuries by stones and upon receiving such injuries, blood started oozing from the head of the deceased Hurji and due to the injuries, he died on the spot. It is also stated in the F.I.R. that the complainant and his son intervened in the matter and tried to rescue Hurji, Walji, Smt. Atli and Semli from the beating of the accused-appellants but they could not succeeded and in the course of intervention, all the accused-appellant assaulted them also and thereafter, they run away from the place of occurrence. 4. Upon aforesaid oral complaint made by the complainant PW-I Kauwa, the F.I.R. (Exhibit-4) was registered by the SHO, Police Station Pahada District Udaipur and commenced the investigation. The Investigating Officer after completion of investigation filed challang against all the accused-appellants for the offences under Sections 148, 302/149, 323/149 I.P.C. in the Court of ACM Kherwada from where the case was committed for trial to the Court of Sessions Judge, Udaipur and the learned Sessions Judge, Udaipur transferred the case for trial to the Court of learned Additional District and Sessions Judge (Fast Track No. 3) Udaipur, Camp Salumber. The leaned Trial Court after framing charges against the accused-appellants for the aforesaid offences, commenced the trial and recorded the statement of 16 prosecution witnesses, so also 23 documents were exhibited from the prosecution side. After recording of statements of prosecution witnesses, the statements of all the accused-appellants under Section 313 Cr.P.C. were recorded and in defence statement of three witnesses were recorded. After recording evidence of both the sides, the case was finally heard by the Trial Court and vide judgment dated 1.8.2006, the learned Trial Court convicted all the accused-appellant for the offences as mentioned above. 5. The learned Counsel for the accused-appellants vehemently argued that the Trial Court has completely failed to appreciate the most important aspect of the case that the prosecution has failed to establish any motive or intention of the accused-appellants to commit the alleged offence, therefore, the finding given by the learned Trial Court for committing offence under Section 302 I.P.C by the accused-appellant Haksi deserves to be set aside. Learned Counsel fort appellant further argued that as per the prosecution story, the accused-appellant Haksi was having axe in his hand but upon perusal of the postmortem report (Ex.P-8) no incised wound was found upon the person of deceased Hur" While inviting attention towards the postmortem report and statement of PW-10 Dr. Ram Ahari, it is submitted that only two lacerated wounds were found upon the body of the deceased Hurji and as per the opinion of doctor PW-10 Dr. Ram Ahari and the Medical Board, the cause of death was coma as a result of head injuries. 6. The learned Counsel for the accused-appellants vehemently argued that wen if the story of the prosecution is accepted as a whole, then also it is not a case of offence under Section 302, I.P.C. against the accused-appellant Haksi for which he has been convicted because as per statement of all the prosecution witnesses the accused Haksi was having an axe in his hand which is sharp edged weapon but no injuries were caused by him from the sharp side of weapon-axe. Meaning thereby, there was no intention to kill, which is corroborated from the fact that there is no evidence with regard to motive or intention to commit murder. 7. In view of above, it is submitted that no case of conviction under Section 302 I.P.C. is made out against the accused-appellant No. 1 Haksi, therefore, the conviction and sentence awarded to the accused-appellant which is based upon the erroneous finding of the Trial Court deserves to be quashed. 8. As per argument of learned Counsel for the appellant that all the prosecution witnesses are interest witnesses, belongs to the family, therefore, obviously innocent accused-appellants Nos. 2 to 5 are intentionally indulged in the incident falsely. Therefore, all the accused-appellants deserve to be acquitted from the charges levelled against them. Lastly, it is argued that if this Court comes to the conclusion that in the incident in which serious injuries were received by the accused and complainant party, then also it is not case to convict the accused-appellant Haksi under Section 302 I.P.C. looking to the fact that injuries were caused from reverse side of axe, therefore, it is a case of culpable homicide not amounting to murder. In view of above facts, it is prayed that the conviction imposed upon the accused-appellant Haksi under Section 302 I.P.C. may be set aside because as per evidence, commission of offence does not travelled beyond Section 304 Part-1 of the I.P.C. 9. In support of above arguments, the learned Counsel for the appellants relied upon following judgments: 1. 2007(2) WLC (SC) 94 : Kailash v. State of Rajasthan & Ors. 2. Cr. Appeal No. 885/2007 : State of Rajasthan v. Manoj Kumar, decided by the Apex Court on 11.4.2014 3. Cr. Appeal No. 2114/2009 : Ram Pal Singh v. State of U.P., decided by the Apex Court on 24.7.2012 4. Cr. Appeal No. 1695/2005 : Manjeet Singh v. State of Himachal Pradesh, decided by Apex Court on 25.4.2014 5. Cr. Appeal No. 265/2010 : Rameshwar Lai @ Fauji & Ors. v. State of Rajasthan, decided on 19.9.2014. 10. Per contra, the learned Public Prosecutor Mr. J.P. Choudhary vehemently argued that there is sufficient evidence on record to prove the prosecution case that the appellant No. 1 caused serious injuries by axe therefore, committed an offence under Section 302 I.P.C. and other 4 accused-appellants committed offence under Sections 323 and 148 I.P.C. for which they were convicted by the learned Trial Court, therefore, it cannot be said that any error is committed by the learned Trial Court in convicting the accused-appellants for the alleged offence. 11. The learned Public Prosecutor further argued that there is recovery of weapon from the appellants and serious injuries were found upon the body of deceased, inflicted in the quarrel occurred in the presence of eye witness PW-1 Kauwa (complainant), PW-2 Harish, PW-4 Smt. Shimali, PW-5 Smt. Atali and PW-7 Valji and all the eye witnesses categorically stated in their statements in the trial that all the accused-appellants caused serious injuries to late Hurji and to other injured eye witnesses, therefore, the learned Trial Court while accepting the prosecution evidence rightly convicted the appellant No. 1 for the offence under Section 302/148 I.P.C. and 323/149 I.P.C. and remaining accused-appellants for the offences under Sections 148 and 323 I.P.C. therefore, instant appeal filed by the appellants may be dismissed. 12. After hearing the learned Counsel for the parties we have perused the judgment impugned and the judgment relied upon by the appellants. 13. 12. After hearing the learned Counsel for the parties we have perused the judgment impugned and the judgment relied upon by the appellants. 13. As per the prosecution case the challan was filed for offence under Sections 148, 302/149, 323 and 323/149 I.P.C. against all the appellants. Charges were also farmed for above offences, but the learned Trial Court acquitted the accused-appellant Narayan, Kalu @ Rajendra, Smt. Lali and Ms. Hasina from the charges of offence under Section 302/149 I.P.C. but held them guilty for offence under Section 148/323 I.P.C. Likewise, the learned Trial Court held accused-appellant No. 1 Haksi guilty for offence under Sections 302, 148 and 323/149 I.P.C. and convicted him for life imprisonment. 14. We have scanned the statement of all the eye witness in which it is categorically stated by them that accused-appellant Haksi inflicted injury by axe from reverse side. In the Court it is specifically stated by the eye witnesses that " gDlh us gqtjh ds dqYgkMh dh eawM dh rjQ ls flj ij ekjh " and the learned Trial Court while taking cognizance of above fact and the statement of PW-10 Dr Ramesh Ahari, so also the injuries mentioned in postmortem report of Hurji gave finding that injuries were caused by appellant Haksi from the back side of axe. The learned Trial Court on the basis of overall assessment of the testimony of eye witnesses gave following finding in the judgment that: " fpfdRlk vf/kdkjh MkW0 jes'k vgkjh ih0M0 10 us vius dFkuksa esa e'rd gwjth dh e'R;q dk dkj.k dksek M~;w Vw gsM bUtjh gksuk crk;k x;k gSA vkSj vfHk;kstu lk{; ds vuqlkj vfHk;qDr gdlh us gwjth ds flj esa eqUn dh rjQ ls dqYgkM+h dh ekjh FkhA " 15. Therefore, upon above finding of the learned Trial Court it is abundantly clear that all the injuries upon the deceased were caused from the reverse side of axe by appellant Haksi, therefore, we are of the opinion that there is evidence on record to the extent that sharp edged weapon was in the hand of accused Haksi but he used it from reverse side which is blunt side for which the witness PW-10 Dr. Ramesh Aahari gave his opinion that the case of death was coma due to head injury. 16. Ramesh Aahari gave his opinion that the case of death was coma due to head injury. 16. Upon minute assessment of the evidence and argument, we are of the opinion that there is no denial of occurrence by the accused-appellants in this case but the main ingredient which is 'intention' is absent which is mandatory for the offence under Section 302 I.P.C. It is also worthwhile to observe that on one hand, learned Trial Court gave finding that as per the statement of all the witnesses although accused-appellant Haksi was having sharp edged weapon-axe but caused injury from reversed side of the axe and on the other hand, convicted the accused-appellant No. 1 Haksi for the offence under Section 302 I.P.C. instead of Section 304 Part-1 I.P.C. therefore, we are of the opinion that it is not a case of culpable homicide amount to murder, rather it is a case of culpable homicide not amounting to murder, which is punishable under Section 304 Part-1 of I.P.C. The Hon'ble Supreme Court in the case of Kailash v. State of M.P. ported in 2007(12) WLC (SC) (Cr.) held that as per the principle of law if accused was having sharp edged weapon at the time of occurrence but used om reversed which is blunt and did not inflict injury from sharp side then obviously, it can be gathered from that fact that there was no intention to kill, therefore, it is a case of culpable homicide not amounting to murder. The Para No. 41 of the said judgment is relevant, which is as under: "41. However, in Rajinder v. State of Haryana, (2006) 6 SG 330 another Division Bench of this Court upon analyzing the provisions of Section 300 of the Indian Penal Code and referring to the celebrated case of Virsa Singh v. State of Punjab, AIR (1958) SC 465 stated the law thus: "These observations of Vivian Bose, I. have become locus classicus. The test laid down by Virsa Singh's case (supra) for the applicability of Clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. The test laid down by Virsa Singh's case (supra) for the applicability of Clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under Clause thirdly of Section 300 I.P.C. culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons-being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages." 17. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages." 17. Recently, the identical set of evidence, this Division Bench in D.B. Cr. Appeal No. 265/2010 : Rameshwar Lal @ Fauji & Ors. v. State of Rajasthan, decided on 19.9.2014 followed the judgment of Hon'ble Supreme Court relied upon by the accused-appellant and gave following adjudication in the above case: "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 Sections 302, 304 Part-1 and 304 Part-II I.P.C. 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 I.P.C., 'murder' is punishable under Section 302 I.P.C. but when the offence is 'culpable homicide' not amounting to 'murder' then punishment would be dealt with under Section 304 I.P.C. 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 premeditation. 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 premeditation. 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. 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. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part-1 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. 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." 18. In view of the above judgment, we have considered the evidence of instant case. 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." 18. In view of the above judgment, we have considered the evidence of instant case. In our opinion, as per the prosecution story accused-appellant No. 1 Haksi was having axe which is sharp edged weapon, but used from reverse side which is blunt side and it resulted into lacerated would upon the body of deceased Hurji. The learned Trial Court also gave finding that accused-appellant Haksi inspite of having sharp edged weapon-axe in his hand used the same from reverse side, but erroneously convicted the accused-appellant No. 1 Haksi under Section 302 I.P.C. instead of offence under Section 304 Part-1 I.P.C. Therefore, after considering the statements of all the eye witnesses, it can safely be said that conviction of accused-appellant No. 1 Haksi deserves to be converted from Section 302 I.P.C. to Section 304 Part-1 I.P.C. 19. In view of above discussion, the conviction and sentence of accused-appellant No. 1 Haksi is hereby altered from Section 302 I.P.C. to Section 304 Part-1 I.P.C. but the conviction and sentence of offences under Sections 148 and 323/149 I.P.C. awarded by the learned Trial Court are upheld. 20. With regard to conviction and sentence of other accused-appellants Nos. 2 to 5 namely Narayan, Kalu @ Rajendra, Smt. Lali and Ms. Hasina, in our opinion, the accused party itself is not disputing the incident but as per the finding of the learned Trial Court the prosecution has failed to establish intention or motive, therefore, while maintaining the conviction of accused-appellants Nos. 2 to 5 for offence under Sections 323 and 148 I.P.C., the sentence awarded to them is hereby quashed and in place of sentence for offence under Sections 323 and 148 I.P.C., the accused-appellant Nos. 2 to 5 are hereby granted benefit of probation.In view of the above, the appeal of accused-appellant Nos. 1 to 6 namely Haksi, Narayan, Kalu @Rajendra, Smt. Lali and Ms. Hasina is hereby partly allowed by modifying the conviction and sentence awarded by the learned Trial Court in the following manner: 1. 2 to 5 are hereby granted benefit of probation.In view of the above, the appeal of accused-appellant Nos. 1 to 6 namely Haksi, Narayan, Kalu @Rajendra, Smt. Lali and Ms. Hasina is hereby partly allowed by modifying the conviction and sentence awarded by the learned Trial Court in the following manner: 1. Haksi Under Section 304 Part-1 I.P.C. 8 Year RI with fine for L 1000/- and in default of payment of fine, further to undergo six months simple imprisonment. Under Section 148 I.P.C. One years rigorous imprisonment with fine of L 500/- and in default of payment of fine, further to undergo three months' simple imprisonment. Under Section 323/149 I.P.C. One years' rigorous imprisonment with fine of L 500/- and in default of payment of fine further to undergo three months' simple imprisonment. 2. Narayan, 3. Kalu @ Rajendra, 4. Smt. Lali and 5. Ms. Hasina: The accused-appellant Nos. 2 to 5 are hereby granted benefit of Probation of Offenders Act and the sentence awarded to all above accused-appellant Nos. 2 to 5 under Sections 148, 323 I.P.C. is hereby set aside and it is directed that above appellants shall furnish a personal bond in the sum of L 20,000/- each and a surety bond of like amount before the learned Trial Court that they will maintain the peace for one year. The substantive sentence awarded to the appellant No. 1 will run concurrently.The copy of this judgment be sent immediately to the concerned jail where the accused-appellant No. 1 Haksi is serving sentence. The accused-appellant Nos. 2 to 5 are already on bail and their sentence has been quashed and benefit of Probation of Offenders Act has been granted, therefore, they need not to surrender and their bail bonds are hereby discharged. The record of the Lower Court may be sent back.Appeal partly allowed. *******