Hon'ble AHLUWALIA, J.—By this common judgment, D.B. Criminal Appeal No.427/2006 preferred by Dharmpal Jat, and D.B. Criminal Appeal No.646/2006 instituted by Ramniwas shall be decided together. 2. Both the appeals are directed against the common judgment dated 29.3.2006, passed by the Additional Sessions Judge (Fast Track) No.3, Jhunjhunu whereby both the appellants have been convicted for offence under Section 302/34 IPC and vide a separate order of even date have been sentenced to life imprisonment and pay a fine of Rs.200/- each in default thereof, to undergo simple imprisonment for one month. 3. Formal FIR (Ex.P.14) was registered at Police Station Chirawa, District Jhunjhunu on the basis of written complaint (Ex.P.8) submitted by Subhash Chandra (P.W.4). In the written complaint it was averred that on 19.10.2003, at about 10.30 P.M. a telephonic call was received by son of his uncle from Palaram. Palaram disclosed that in the open area (Guwad), Ramchandra was beaten by Dharmpal S/o. Ramkaran and Ramniwas S/o. Prahlad. Mahaveer, son of his uncle, came running and relayed this information to him. Immediately he (Subhash Chandra) reached at the spot and saw that both, Dharmpal and Ramniwas, were dragging deceased, Ram Chandra, inside the gate of Maturam. He asked the accused as to why Ram Chandra was being beaten, upon which Dharmpal said by giving a bad name, that they have finished Ram Chandra and if the witness will follow them, he will be dealt with similarly. Thereafter accused ran away. At that time, Sunil and Vijyendra were attracted at place of occurrence on a scooter. The informant stated that his brother, Ram Chandra, has been murdered by Dharmpal and Ramniwas due to an old grudge. Later on, at spot Palaram, Mahaveer and his cousin brother, Ramkumar, were also attracted. Death body of Ram Chandra was lying at the spot. 4. The aforesaid FIR was investigated. A report under Section 173 Cr.P.C. was submitted. The said report along with the accused, was committed by the court of concerned Magistrate to the court of Sessions and was entrusted for trial to the Court of Additional Sessions Judge (Fast Track No.3), Jhunjhunu. 5. The appellants were charged on 24.4.2004 by the trial court for offence under Section 302 IPC and in the alternative, for offence under Section 302 read with 34 IPC. 5. The appellants were charged on 24.4.2004 by the trial court for offence under Section 302 IPC and in the alternative, for offence under Section 302 read with 34 IPC. The charge stated that Dharmpal, appellant, on 19.10.2003 at 10.30 P.M. in Guwad of Ram Chandra, along with Ramniwas, due to old grudge by causing injury with heavy stone, had caused murder of Ram Chandra, thereby committed offence under Section 302 or 302 read with 34 IPC. They pleaded not guilty and claimed trial. 6. The prosecution in all, examined 15 witnesses. 7. Mangilal (P.W.1) stated that on 19.10.2003 at around 10.00-10.15 P.M., he came from the field of Pittram Jat to the Guwad. When he was twenty steps away from the Guwad, he saw that Ramniwas and Dharmpal were beating Ram Chandra. They were also giving him abuses. This witness informed Palaram, neighbour of Ram Chandra, on telephone that Ram Chandra was given beating by Dharmpal and Ramniwas, and he should disclose this fact to his brother. This witness after making telephonic call, had gone to his well in the fields. In the morning, he learnt that Ram Chandra was murdered. According to this witness, Ramniwas and Dharmpal had committed murder. In cross-examination, this witness stated that he had not intervened. All three of them were not empty handed, but Dharmpal was having stone in his hand. He had not snatched stone from the hand of Dharmpal due to fear as they were “Badmash” by nature. He had seen injury being caused by stone on the head of Ram Chandra, deceased. When the witness rushed to the spot, Ram Chandra had fallen down. This witness further stated that he had no conversation with the accused and neither he told them not to inflict injuries with stone. This witness stated that he had not seen Ram Chandra being dragged. He further stated that he had seen dead body at the place where the injuries were caused. He later told that at a distance of 5-6 feet where injuries were caused, later Ram Chandra was found. He further stated that in his presence, injury was caused on the right side of Ram Chandra. He had not counted the injuries. 8. Pyarelal (P.W.2) stated that on 19.10.2003 at about 8.30 P.M., Ramniwas and Dharmpal came to him and sat with him. He further stated that in his presence, injury was caused on the right side of Ram Chandra. He had not counted the injuries. 8. Pyarelal (P.W.2) stated that on 19.10.2003 at about 8.30 P.M., Ramniwas and Dharmpal came to him and sat with him. He (Pyarelal) had already brought two plastic pouches of liquor for his maternal uncle. He had given those to the accused. Nearby at a grocery store, Ram Chandra was also standing. When Ram Chandra left the spot, accused Dharmpal and Ramniwas followed him. In the morning he learnt that Ram Chandra was murdered by Ramniwas and Dharmpal. 9. Basheshar (P.W.3) stated that in his village, police came and had prepared the site plan. He had attested the site plan (Ex.P.1). This witness had also seen the dead body of Ram Chandra. On 20.10.2003, he had attested the inquest report (Ex.P.2). In his presence two empty pouches of liquor being Article-8 were recovered. He further stated in his cross-examination that Ramniwas and Dharmpal were apprehended, at what time they were arrested this fact is not known to him. 10. Subhash Chandra (P.W.4), the first informant, stated that on 19.10.2003 his Taya's son (cousin brother), Mahaveer, informed him that he had received an information on telephone from Palaram that Dharmpal S/o. Ramkaran and Ramniwas both in the Guwad, were beating Ram Chandra. Hearing this, he had rushed to the spot. At that time, Vijyendra and Sunil also followed him. The electric pole was emitting light. The accused were dragging the naked dead body of his brother inside the house of one Maturam which was lying deserted. Body of his brother was soaked in the blood. Clothes of Dharmpal and Ramniwas were having blood stains. The witness asked to the accused as to why they are beating Ram Chandra. On this, they left Ram Chandra in the street and rushed towards him by blurting bad name they said that they have finished Ram Chandra and in case he (witness) will not keep quite, the witness will also be finished. At that time seeing Vijyendra and Sunil coming to the spot, accused ran away from the spot. Their clothes were having stains of blood. The witness further stated that he had made no attempt to apprehend the accused as he was taking care of his brother. The witness further stated that at the spot, two pouches of liquor were lying. At that time seeing Vijyendra and Sunil coming to the spot, accused ran away from the spot. Their clothes were having stains of blood. The witness further stated that he had made no attempt to apprehend the accused as he was taking care of his brother. The witness further stated that at the spot, two pouches of liquor were lying. 11. Jai Prakash (P.W.5) was posted as Constable at Police Station, Chirawa. He had carried six sealed packets from Malkhana to the Forensic Science Laboratory, Jaipur. 12. Vijyendra (P.W.6) stated that on 19.10.2003 when he was sleeping with his father, Paliram, his father woke him up and told that in the Village, Dharmpal and Ramniwas are quarreling with Ram Chandra. His father received this telephonic call. The witness and his younger brother, Sunil, on scooter, had gone towards the Village, Padampura. Subhash was already sent to the village Padampura. The witness further stated that in the Guwad, they reached near the house of Maturam Nayak. At that time, Dharmpal and Ram-niwas were dragging Ram Chandra. In cross-examination, this witness stated that the accused were dragging Ram Chandra by catching hold of his legs. 13. Dr. Veer Singh (P.W.7) on 20.10.2003, had conducted autopsy on the dead body of Ram Chandra. He found two injuries on the left side of head of Ram Chandra. He further opined that Injury No.1 which was injury to the brain, had proved fatal due to excessive bleeding. 14. Udai Singh (P.W.8) was in-charge of Malkhana and had proved the link evidence. 15. Yashpal Yadav (P.W.9) was a Constable at Police Station, Chirawa. He had brought the police report (Ex.P.8) which contained his signature. On the basis of the said report, a formal FIR (Ex.P.14) was chalked out. 16. Sunil (P.W.10) stated that on 19.10.2003 at about 10.45-11.00 P.M., his father told him that a quarrel had taken place at village between Ramchandra, Dharmpal and Ramniwas. They were fighting. The witness was told to go to the spot so that the dispute is resolved. Thereafter the witness along with his brother, Vijyendra, on scooter, went towards the village. This witness further stated that both the accused were dragging the deceased towards the house of Maturam. 17. Sanjay Kumar (P.W.11) told that on 19.10.2003 at about 10.00 P.M., Mahaveer, his Taya, came and informed that his father is being beaten by Dharmpal and Ramniwas in the village. This witness further stated that both the accused were dragging the deceased towards the house of Maturam. 17. Sanjay Kumar (P.W.11) told that on 19.10.2003 at about 10.00 P.M., Mahaveer, his Taya, came and informed that his father is being beaten by Dharmpal and Ramniwas in the village. 18. Palaram (P.W.12) deposed that on 19.10.2003 at about 10.30 P.M. he received a telephone from Mangilal. Mangilal informed him that Dharmpal and Ramniwas are beating Ram Chandra. Palaram, in turn, on telephone informed Mahaveer and told him to go and save Ram Chandra. Then he had sent his son Vijyendra and Sunil to the spot. He had sent his son as Satyaveer was also there and he apprehended that he (Satyaveer) may not be beaten. After half an hour, Vijyendra, on telephone, informed that Ram Chandra is lying dead and he has been killed by Dharmpal and Ramniwas. Then he also went to the spot and saw the dead body of Ram Chandra. Dead body was lying in the street of Maturam. Then he made a telephonic call to the Police. Police came at the spot. Police prepared site plan in the morning which is Exhibit-P.1 and same bear his signature. Then inquest report (Ex.P.2) of deceased, Ram Chandra, was prepared. He has also appended his signature on the same. At that time, Basheshar, Mahaveer, Subhash and another person Bhal Singh were present with him. The inquest report was prepared in front of everbody. The police had lifted blood stained earth and simple earth also vide Exhibit-P.3. That was also taken into possession. Shirt of Ram Chandra which was stained with blood and earth, was also recovered. The shirt has been recovered as Article-1. Police had also taken into possession Pajama and shirt of Dharmpal, which were stained with blood. The Article-2 is shirt and Article-4 is Pajama of Dharmpal. Clothes of Dharmpal were taken into possession vide Exhibit-P.5. The said memo contained signature of witness, Palaram. In his presence clothes of Ramniwas were also taken into possession. The Pajama was Article-3 and Kurta was Article-5. Simple earth has been assigned Article-6 and blood stained earth as Article-7. Police had also lifted from the spot two empty pouches of liquor being Article-8 vide Memo (Exhibit.P.7). Recovery memo of dead body (Exhibit-P.9) was also prepared at the spot. In his presence clothes of Ramniwas were also taken into possession. The Pajama was Article-3 and Kurta was Article-5. Simple earth has been assigned Article-6 and blood stained earth as Article-7. Police had also lifted from the spot two empty pouches of liquor being Article-8 vide Memo (Exhibit.P.7). Recovery memo of dead body (Exhibit-P.9) was also prepared at the spot. On the disclosure made by Dharmpal and Ramniwas, one stone was recovered from the house of Dharmpal beneath the Sofa. The stone has been exhibited as Article-8. In cross-examination, this witness stated that first the stone was recovered, thereafter his statement under Section 161 Cr.P.C. was recorded. Stone was recovered on 22nd. Clothes were recovered first and stone was recovered later. The witness stated that distance between the place where he received telephone and the place of occurrence was 1/2 kilometer. When he heard information regarding beating given to the deceased, on telephone, he had reached the spot at about 11.00-11.30 P.M. He reached at the spot, then 50-60 persons had already gathered there. They had not gone to the house of accused, Ramniwas and Dharmpal. The witness stated that it was not known to him since when Ram Chandra was missing. He had met Ram Chandra on that day at 4.00 P.M. At that time Ram Chandra was alone. He had seen Ramniwas and Dharmpal on that day at 6-7 P.M. They were taking liquor in the field. He had no talk with Ramniwas and Dharmpal. When the accused were taking liquor at that time, Ram Chandra was not with them. He denied that he and Dharmpal were having litigation, but admitted that his brother Karan Singh was having a case of cheating and forgery with the accused, Dharmpal and the same was going on in the court at Dadari. He denied the suggestion that since Dharmpal was a witness against his brother, therefore, he is making statement against Dharmpal. He further stated that Ram Chandra was a teetotaler and he had never seen him taking liquor. The witness further stated that when police came, he did not disclose name of the assailants. Subhash had made a report, in which names of the assailants were disclosed. Till the police was attracted at the spot, he also remained there. He further stated that Ram Chandra was a teetotaler and he had never seen him taking liquor. The witness further stated that when police came, he did not disclose name of the assailants. Subhash had made a report, in which names of the assailants were disclosed. Till the police was attracted at the spot, he also remained there. The witness further stated that on that day his statement was not taken till 10.00 P.M. He further stated that villagers had not told the police about Ram Chandra being killed by Dharmpal and Ramniwas. At a distance of 6-7 feet from the dead body, pouches of liquor were lying. 19. Kailash Jindal (P.W.13) disclosed to the court that on 20.10.2003 he was posted as Sub Inspector at Police Station Chirawa. At about 3.15 A.M. in that night he had received a writing through Constable Yashpal from the SHO and on the basis thereof he had recorded a formal FIR. 20. Mahaveer (P.W.14) stated that on 19.11.2003 at about 10.00-10.30 p.m. he received a telephonic call from Palaram. Palaram disclosed that Ram-niwas and Dharmpal are giving beating to Ram Chandra. The witness then went and informed about this fact to Subhash who at that time was sleeping. After sometime Subhash had gone to spot. He also reached at the place of occurrence. At that time, Subhash, Vijyendra and Sunil also came there. When he asked them about the details, he was informed that Ramniwas and Dharmpal, after giving injuries to Ram Chandra, had left the spot while giving abuses to them also. He had found dead body of Ram Chandra in the street in front of house of Maturam Nayak. He had seen injury on the right side of head of Ram Chandra. This witness also testified the various recoveries made at the spot. In his cross-examination, the witness stated that he reached near Ram Chandra at about 11.00-11.30 A.M. There was blood on the face and body of Ram Chandra. Palaram reached at the spot ten minutes later. In his presence, stone was recovered from the house of Dharmpal. 21. Vidya Prakash (P.W.15) posted as SHO, Police Station Chirawa had proved various facets of investigation. Palaram reached at the spot ten minutes later. In his presence, stone was recovered from the house of Dharmpal. 21. Vidya Prakash (P.W.15) posted as SHO, Police Station Chirawa had proved various facets of investigation. In cross-examination this witness stated that he had received a telephonic call and was informed that one person was lying dead, but the caller had not informed name of the deceased, at what time he had received injuries and who had killed him, all details were not divulged. 22. After the prosecution had closed its evidence, statements of the accused were recorded under Section 313 Cr.P.C. They denied the charges leveled against them and pleaded false implication. 23. Dharmpal in his statement under Section 313 Cr.P.C. stated that Ram Chandra was alcoholic. He used to drink with so many persons. He may have fallen, or may have been caused injuries by somebody. He (Dharmpal) has been involved due to inimical relations. 24. No witness has been examined in defence. 25. We have heard Shri Rajesh Choudhary, the learned counsel for the appellants, Shri N.S. Dhakar, the learned Public Proseuctor, and Shri Sanjay Mehla, the learned counsel for the complainant. 26. From the facts above narrated by us it is apparent that Mangilal (P.W.1) had apparently witnessed the occurrence. It is case of the prosecution that Mangilal made a telephonic call to Palaram (P.W.12) and informed that both the appellants, Dharmpal and Ramniwas, were giving beating to deceased, Ram Chandra. Palaram having received this information has relayed the same to Mahaveer (P.W.14). Mahaveer went to the house of Subhash and informed him about the information received by him from Palaram on telephone. At that time, Subhash was sleeping. It is stated that after sometime, Subhash had left for the spot. Palaram has stated that distance between his house and the place of occurrence is 1/2 kilometer. Subhash (P.W.4) when reached at the spot, has stated that at that time both the accused had caught hold of legs of the deceased and were dragging his body towards the house of Maturam Nayak. A perusal of medical evidence reveals that there were no drag mark on the body of the deceased. As per Subhash (P.W.4) body of his brother Ram Chandra was naked. If in the street body is dragged there must be some abrasion, or drag marks. A perusal of medical evidence reveals that there were no drag mark on the body of the deceased. As per Subhash (P.W.4) body of his brother Ram Chandra was naked. If in the street body is dragged there must be some abrasion, or drag marks. After Subhash had reached at the spot, Sunil (P.W.10) and Vijyendra (P.W.6) also reached at the spot. They were followed by Mahaveer and Palaram. In our opinion, testimony of Subhash and other witnesses that they had seen the deceased with the accused is a blemish and an exaggeration as a result of consultations and deliberations. 27. Independent witness, Pyarelal (P.W.2), has stated in the court that around 8.00 P.M. Ramniwas and Dharmpal came to him. They had taken two pouches of liquor from him. At that time Ram Chandra was standing at the grocery shop and when Ram Chandra left the shop, accused followed him. Therefore, occurrence most probably has taken place around 8.00 or 8.30 P.M., immediately after the accused had followed Ram Chandra. Whereas a telephonic information was received by Mahaveer at 10.30 P.M. from Palaram. Information was relayed to Palaram by Mangilal (P.W.1), he had not intervened and had left for his house. Mangilal (P.W.1) has stated in the court that he had given information on telephone to Palaram at about 10.00-10.15 P.M. It is to be noted that there are only two injuries on the person of Ram Chandra. They must have been caused in a quick succession. Therefore, by the time Subhash (P.W.4) reached, injuries had already been given. It is difficult for us to believe that the accused shall remain present at the spot and shall wait for arrival of the witnesses. 28. It has been stated by the prosecution witnesses and by the accused also in their statements under Section 313 Cr.P.C. that there was a previous grudge between the parties. What was that grudge, as to why relations between the parties were inimical nothing has come on record. Rather, it has come in evidence that the appellant, Dharmpal, was having a litigation with Karan Singh, brother of Palaram. So far as deceased is concerned, nothing has been brought on record as to why his relations with accused were inimical or had turned sour and what was the grudge that led the accused to give beating to Ram Chandra, nothing has been shared with court. 29. So far as deceased is concerned, nothing has been brought on record as to why his relations with accused were inimical or had turned sour and what was the grudge that led the accused to give beating to Ram Chandra, nothing has been shared with court. 29. Another feature which is to be noted is that both the accused were empty handed. In the present case, injury has been caused by heavy stone which is normally available. It has also come in evidence that two empty pouches of liquor were recovered from the spot. Pyarelal has also stated that he had supplied two pouches of liquor to Dharmpal and Ramniwas. Thus, while accused were taking liquor something had happened. What is the true genesis and origin of occurrence, the prosecution is blissfully silent. Therefore, we can safely assume while Dharmpal and Ramniwas were taking liquor something had happened between them and the deceased. Dharmpal along with Ramniwas by picking a stone, had caused one injury to Ram Chandra. 30. Though we have stated that Subhash (P.W.4), Mahaveer (P.W.14), Vijyendra (P.W.6) and Sunil (P.W.10) had reached at the spot later, we cannot totally discard testimony of Mangilal (P.W.1) as Mangilal was never conscious that both the accused will cause murder. Rather, he had informed that deceased was given beating by accused. Thus, the common intention of the accused was to beat Ram Chandra and not to cause murder. As a result of beating, deceased had died suffering one injury on his head, out of total two injuries found on his person. 31. Taking totality of the circumstances that as to what was the grudge has not been disclosed by the prosecution, what ignited the occurrence, what was a flash point for the accused to give a beating to Ram Chandra and the fact that they were consuming liquor and were not armed with a weapon and have only caused two injuries out of which fatal injury was caused with a stone, thus it is difficult for us to sustain the conviction of the appellants for offence under Section 302/34 IPC. 32. Consequently, we convert the conviction of the appellants for offence under Section 302/34 IPC to Section 304 Part-I IPC and set aside the life imprisonment awarded by the learned trial court to the appellants for offence under Section 302/34 IPC. 32. Consequently, we convert the conviction of the appellants for offence under Section 302/34 IPC to Section 304 Part-I IPC and set aside the life imprisonment awarded by the learned trial court to the appellants for offence under Section 302/34 IPC. Having convicted the appellants under Section 304 Part-I IPC, we sentence both of them to 10 years' rigorous imprisonment with fine of Rs.5,000/- each, in default thereof, to further undergo rigorous imprisonment of six months. 33. With the above modification in the offence and sentence, the present appeals stand disposed of.