JUDGMENT 1. - Learned Additional Sessions Judge (Fast Track) No.2, Bikaner, by the judgment impugned dated 27.6.2005 convicted and sentenced the accused appellants as under:- Accused Dhanna Ram - Under Section 302 I.P.C. - Life imprisonment with a fine of Rs. 1000/-and further to undergo one month's additional imprisonment in the event of default in payment of fine. Accused Ram Pratap - Under Section 302/34 I.P.C. - Life imprisonment with a fine of Rs. 1000/- and further to undergo one month's additional imprisonment in the event of default in payment of fine. 2. In brief, facts of the case are that on 6.11.2003, an oral information given by Shri Sunil (PW-4) at Police Station Sadar, Bikaner, was reduced in writing. As per the facts stated by Shri Sunil, he along with his Taau Khyaliram, Taai Majam, Mama Balbir, Mami Ita, their daughter Anjali and sister Arti came to Bikaner from Jodhpur for selling pen. They all were staying near Indra fountain in public park Bikaner. On 6.11.2003 at about 10:15 PM Smt. Majam made an alarm that some man was doing some mischief with the bed of Smt. Ita. It was found that a man having 'tilak' on his forehead was standing near the bed. On being instructed and pushed he proceeded towards the temple. The man after some time returned along with two other persons and started abusing. A 'kulhari' blow was given to Shri Khyaliram by a person accompanying the first man. All the three persons fled from the spot immediately thereafter. 3. During the course of investigation, an autopsy was conducted on the /person of Khyaliram and as per its report Ex.P-1 the cause of death was coma due to antemortem injury to skull and brain that was sufficient to cause death in ordinary course of nature. The single injury found on the corpus of Khyaliram was as under:- "Lacerated wound 4 x 1/2 cm x scalp deep behind right ear oblique on occipital region, caused due to hard and blunt impact, and fresh in duration at time of death". 4. On 10.3.2004, the investigating agency arrested accused Dhanna Ram and Ram Pratap. On basis of the information given by accused Dhanna Ram an iron rod (axle) was recovered as per document Ex.P-2 on 19.3.2004. 4. On 10.3.2004, the investigating agency arrested accused Dhanna Ram and Ram Pratap. On basis of the information given by accused Dhanna Ram an iron rod (axle) was recovered as per document Ex.P-2 on 19.3.2004. On the same day a 'kulhari' was recovered at the instance of Ram Pratap and memo of that is available on record as Ex.P-4. Two police personnel viz. Mahavir Prasad Singh (PW-6) and Shrawan Ram (PW-2) were the attesting witnesses of the recoveries made as per documents Ex.P-2 and Ex.P-4. Accused Dhanna Ram and Ram Pratap were identified by Smt. Majam (PW-5) and Sunil (PW-4). 5. After completing the investigation a police report was filed before the Court competent and after hearing the accused persons they were charged for commission of offence punishable under Sections 302 and 302/34 Indian Penal Code. On denial of the same, trial commenced as desired. 6. The prosecution supported its case with the aid of 10 witnesses, out of whom Sunil (PW-4), Majam (PW-5), Anita @ Ita (PW-7) and Arti (PW-8) were cited as eye witnesses. Shri Rahul Yadav (PW-10) being Investigating Officer narrated all the steps taken during the course of investigation. Dr. Rahul Jain (PW-1) adduced medical evidence. 7. While availing opportunity to explain adverse and incriminating circumstances against them in prosecution evidence, the accused termed the entire evidence concocted and pleaded their false implication in the case concerned. They also stated that their identity was disclosed at Police Station to the witnesses Smt. Majam and Sunil before going to process of identification. 8. Learned Trial Court after examining the evidence available on record and considering the rival submissions recorded conviction of accused Dhanna Ram for the offence punishable under Section 302 Indian Penal Code and of accused Ram Pratap for the offence punishable under Section 302/34 Indian Penal Code. 9. In appeal, the argument advanced by learned counsel for the appellants is that the evidence relating to recoveries made at the instance of accused persons is absolutely false and planted. It is asserted that even as per prosecution weapon of offence was made available to the investigating agency at the first instance on the date of incident itself, as such, the recovery of the same is nothing but a created evidence. It is asserted that even as per prosecution weapon of offence was made available to the investigating agency at the first instance on the date of incident itself, as such, the recovery of the same is nothing but a created evidence. It is further submitted that identification of the accused persons was also disclosed to the witnesses concerned at Police Station and, therefore, the evidence in this regard too is not reliable. Emphasis is also given by learned counsel for the appellants that the weapon of offence as per prosecution is a 'kulhari', but the injury found on the corpus of deceased Khyaliram is lacerated wound and that could have not been received by sharp edged weapon. With regard to accused Ram Pratap, it is submitted that even by accepting the prosecution case as it is, no case against him could have been made for the offence punishable under Section 302/34 Indian Penal Code. It is stated that no participation of this accused in entire incident appears from examination of the evidence available. 10. Per contra, as per learned Public Prosecutor, the accused persons were identified by the eye witnesses and there is no discrepancy in that, as such, their involvement is well established. With regard to recoveries made during the course of investigation, learned Public Prosecutor submits that the same were made as per the information given by the accused persons and no reason exists to disbelieve the same. While meeting with the argument about having lacerated wound on the corpus of deceased Khyaliram, it is submitted that the injury would have been caused from rear side of kulhari'. 11. Heard learned counsel for the appellants, learned Public Prosecutor and examined the record in lucid. 12. In view of the medical evidence available on record, there is no doubt that the death of Shri Khyaliram was homicidal one. 13. The incident in question took place on 6.11.2003 in night at about 10:15 PM. Accused Dhanna Ram and Ram Pratap were arrested on 10.3.2004. Investigating Officer Shri Rahul Yadav (PW-10) stated that some secret information was received about their involvement in the crime in question and, therefore, they were arrested. After arrest, identification parade was conducted, wherein they were identified by eye witnesses Sunil and Smt. Majam. Accused Dhanna Ram and Ram Pratap were arrested on 10.3.2004. Investigating Officer Shri Rahul Yadav (PW-10) stated that some secret information was received about their involvement in the crime in question and, therefore, they were arrested. After arrest, identification parade was conducted, wherein they were identified by eye witnesses Sunil and Smt. Majam. The fact stated is corroborated by Smt. Majam (PW-5) and Sunil (PW-4) who also stated that they identified the accused persons during the course of identification parade. Suffice to mention here that the statements of Shri Sunil and Smt. Majam recorded during the course of investigation as per Section 161 Cr.P.C. are also available on record as Ex.D-1 and Ex.D-2 respectively. Both these witnesses at the first instance on 6.11.2003 itself stated that they can very well identify the assailants. It is quite obvious as the entire incident consumed reasonable time and the witnesses had sufficient time to see them. While deposing before the Court Shri Sunil (PW-4) as well as Smt. Majam (PW-5) quite confidently stated that they at their own identified the accused persons during the process of identification. Neither the identity of the accused was disclosed nor they were shown to them at Police Station. These witnesses as well as other eye witnesses Smt. Ita and Smt. Arti also identified the accused persons before the Court. There is no reason to disbelieve testimony of these eye witnesses, as such, presence of the accused persons at the time of incident at the spot of occurrence stands proved. 14. The evidence relating to recovery of 'kulhari' at the instance of accused Ram Pratap and the iron rod (axle) at the instance of accused Dhanna Ram is sought to be proved by the prosecution with the aid of the attesting witnesses. 15. Before coming to reliability of the attesting witnesses, it would be appropriate to notice that eye witnesses Smt. Majam (PW-5), Sunil (PW-4), Smt. Ita (PW-7) and Arti (PW-8) in quite unambiguous terms stated that the weapon of offence was available at the spot of occurrence and that was handed over to the investigating agency on 6.11.2003 itself. 16. Smt. Majam (PW-5) stated that three persons came at the spot of occurrence and uttered abusive words. Her husband Khyaliram then tried to get rid from those persons by raising 'kulhari' available with him. 16. Smt. Majam (PW-5) stated that three persons came at the spot of occurrence and uttered abusive words. Her husband Khyaliram then tried to get rid from those persons by raising 'kulhari' available with him. The 'kulhari' was snatched by one person who was wearing yellow shirt (identified as accused Dhanna Ram) and then a blow from that was given on the head of Khyaliram. An effort was also made to given a 'kulhari' blow on the arm of Sunil, but while doing so, this witness snatched the 'kulhari' and threw the same in the bushes of 'keeker'. This witness further stated that the 'kulhari' then was given by her to the members of the investigating agency. Shri Sunil (PW-4) also narrated the same facts. Smt. Ita (PW-7) and Ms. Arti (PW-8) also narrated the facts in the same tune. The evidence adduced by the eye witnesses clearly indicates that the weapon of offence i.e. 'kulhari' was seized by the investigating agency on 6.11.2003 itself. It is also relevant to notice that the investigating agency recovered 'kulhari' on 19.3.2004 i.e. after a lapse of 4)4 months from an open place. The attesting witnesses are also police personnel. Suffice to mention that the place wherefrom recovery was made is an open place adjacent to a running road. We fail to understand that why the investigating agency did not choose to avail service of any independent attesting witness to establish the recovery. Be that as it may, in view of the version of facts given by the eye witnesses the recovery of 'kulhari' at the instance of accused Ram Pratap is absolutely unreliable and as such that cannot be taken as a circumstance against him. 17. The recovery of axle too is of no avail for prosecution as that too was made after a lapse of 4 months from an open place. It is also pertinent to notice that no eye witness stated about availability of axle at the time of incident. 18. The case of the prosecution mainly rests upon the evidence of the eye witnesses. We have already concluded with the aid of the statements given by the eye witnesses that the accused persons were present at the spot of occurrence of the crime in question. We, thus, are required to examine their role in commission of the crime. 19. 18. The case of the prosecution mainly rests upon the evidence of the eye witnesses. We have already concluded with the aid of the statements given by the eye witnesses that the accused persons were present at the spot of occurrence of the crime in question. We, thus, are required to examine their role in commission of the crime. 19. As per Sunil (PW-4), he, Khyaliram (deceased), Balbir, Majam, Smt. Anita @ Ita, Arti and few other small kids were sleeping near Indra fountain in public park Bikaner. At about 10:15 PM an alarm was made by Smt. Majam about some effort made by an unknown person to have mischief with the bed of Smt. Ita. A thin man carrying 'tilak' on forehead was found standing there. Khyaliram then pushed that man and he fled from the spot. After some time he returned with two other persons. Some altercations took place between Khyaliram and these persons during which Khyaliram raised 'kulhari'. The 'kulhari' was snatched by the person wearing yellow shirt (identified as accused Dhanna Ram) and he then gave a 'kulhari' blow on the head of Khyaliram. He also tried to given a blow to this witness but failed to do so as Smt. Majam snatched the 'kulhari' and threw the same in bushes of 'keeker'. 20. Smt. Majam (PW-5) stated that the accused persons on arriving at the spot of occurrence stated that the women present are like their mother and sister. However, during the altercations Khyaliram raised 'kulhari' which was snatched by accused Dhanna Ram. The accused gave a blow by that on the head of Khyaliram causing his death. Important to mention here that this witness as well as Sunil (PW-4) stated that they failed to notice the side of the weapon of offence from which injury was caused at the head of deceased Khyaliram. 21. Smt. Ita (PW-7) and child witness Ms. Arti (PW-8) also stated that 'kulhari' used in the crime was of Khyaliram and that was snatched by the accused during the course of altercations. A blow from that was also given by accused Dhanna Ram. 22. As per the prosecution witnesses, the 'kulhari' was first raised by Khyaliram and that was snatched by accused Dhanna Ram. He then gave a blow to Khyaliram causing his death. A blow from that was also given by accused Dhanna Ram. 22. As per the prosecution witnesses, the 'kulhari' was first raised by Khyaliram and that was snatched by accused Dhanna Ram. He then gave a blow to Khyaliram causing his death. The facts clearly indicate that the accused did not come at the spot of occurrence to cause murder of Khyaliram. The fatal injury was inflicted during the course of altercations and scuffle and that is out come of sudden fight in the heat of passion upon a sudden quarrel. The accused also did not take undue advantage and also not acted in cruel or unusual manner. The accused persons came to the spot of occurrence unarmed and some altercations took place between them and deceased Khyaliram. During altercations the accused persons also stated that the women present are like their mother and sister and this fact indicates that some effort was also made to pacify the situation. In totality, the crime committed by accused Dhanna Ram is nothing but a culpable homicide not amounting to murder. The evidence available also not discloses that this accused was having any intention to cause such a bodily injury that was likely to cause death, however, he must be having knowledge that the injury caused by lethal object may cause death. The offence committed by accused Dhanna Ram, thus, is not a murder as described under Section 300 Indian Penal Code, but a culpable homicide not amounting to murder referred under part-ll of Section 304 Indian Penal Code. 23. So far as accused Ram Pratap is concerned, his conviction is recorded by the Trial Court under Section 302/34 Indian Penal Code. No evidence is available on record to disclose any intention shared by this person with accused Dhanna Ram even in causing injury to deceased Khyaliram. As per the evidence adduced by eye witnesses, this accused remained standing at the spot of occurrence without any active participation. The Trial Court drew inference about having common intention only because of his presence at the spot of occurrence. We are of the view that mere presence is not sufficient to establish common intention. To establish common intention several other factors including participation, instigation, protection to the main accused would have been examined by the adjudicating Court. The Trial Court drew inference about having common intention only because of his presence at the spot of occurrence. We are of the view that mere presence is not sufficient to establish common intention. To establish common intention several other factors including participation, instigation, protection to the main accused would have been examined by the adjudicating Court. No such or any other fact is available in the case in hand to arrive at a conclusion of having common intention. As such, we are of the view that the finding arrived by the Trial Court with regard to accused Ram Pratap is apparently erroneous. 24. The appeal, in view of the discussions made above, deserves acceptance in part. Accordingly, the same is partly allowed. The judgment dated 27.6.2005 passed by learned Additional Sessions Judge (Fast Track) No.2, Bikaner in Sessions Case No.58/2004, convicting accused persons Dhanna Ram and Ram Pratap for the offence punishable under Sections 302 and 302/34 Indian Penal Code respectively and sentencing them to undergo life term imprisonment with fine is quashed and set aside. Accused Dhanna Ram is held guilty for commission of offence punishable under Section 304 part-ll Indian Penal Code, thus, he is convicted for the same. He is required to undergo sentence for a period of eight years rigorous imprisonment with a fine of Rs. 2000/- and in default of payment of I fine he is required to further undergo simple imprisonment for a period of two months. Accused Ram Pratap is acquitted from the charges levelled. He is availing suspension of sentence by furnishing bail bonds and sureties. The bail bonds and sureties so furnished stand discharged as a consequence of his acquittal.Appeal partly allowed. *******