Judgment Rajiv Sharma, J. Since common questions of law and facts are involved in all these appeals, the same were taken up together and are being disposed of by a common judgment. 2. These appeals are directed against the judgment dated 22.5.2012 rendered by the Additional Sessions Judge, Fast Track Court, Kullu in Sessions Trial No. 25 of 2009 whereby the appellants-accused (hereinafter referred to as the “accused” for convenience sake), who were charged with and tried for offences punishable under sections 302, 307, 323, 341, 342, 451 and 504 read with section 34 of the Indian Penal Code, have been convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- each for offence under section 302/34 of the Indian Penal Code. They were also convicted under section 451/34 of the Indian Penal Code and sentenced to undergo simple imprisonment for six months. They were also convicted under section 341/34 of the Indian Penal Code and sentenced to undergo simple imprisonment for one month. They were also convicted under section 342/34 of the Indian Penal Code and sentenced to undergo simple imprisonment for six months. They were also convicted under section 323/34 of the Indian Penal Code and sentenced to undergo simple imprisonment for six months. They were also convicted under section 504/34 of the Indian Penal Code and sentenced to undergo simple imprisonment for six months. All the sentences were ordered to run concurrently. The period of detention undergone by the accused was ordered to be set off. 3. Case of the prosecution, in a nutshell, is that on the intervening night of 7.11.2008 at about 10.30 P.M., telephonic information was received in Police Post, City Chowki, Kullu regarding the beatings of Salesman of Liquor Vend near Sood Petrol Pump, Akhara Bazaar, Kullu. On the basis of this information, rapat No.30 was recorded in daily stationed diary. HC Lal Chand alongwith constable Kuldeep Kumar went to the spot. Statement of Vikrant Thakur was recorded under section 154 of the Code of Criminal Procedure. He reported that he was employed as Salesman in wine shop in the name and style of Shruti and Company, Akhara Bazaar, Kullu. He was about to close the shop. In the meantime, accused came there and asked him to give them beer. He refused to give beer saying that the same was not chilled. He reported that he was employed as Salesman in wine shop in the name and style of Shruti and Company, Akhara Bazaar, Kullu. He was about to close the shop. In the meantime, accused came there and asked him to give them beer. He refused to give beer saying that the same was not chilled. Accused Nitin called bad names and asked the Salesman as to why beer was not chilled and also asked as to who was the proprietor of vend. Accused started abusing the proprietor of the vend. Salesman asked the accused not to abuse the proprietor. Accused caught hold of him from his neck and started beating. Cash lying in the chest was also thrown. One Raman Kumar, who was also employed as a salesman in the same shop and had gone to urinate, returned back. He was beaten up by the accused. The other salesman was wrongly confined in the wine shop. Raman Kumar was severely beaten up by the accused as a result of which he sustained injuries. Complainant Vikrant Thakur did not sustain any visible injury. On the information of the complainant when the persons employed on other wine shop reached on the spot, all the accused fled away from the spot. However, accused Nitin was nabbed. Thereafter, FIR was registered against the accused. Raman Kumar was taken to Regional Hospital, Kullu from where he was referred to R.H. Mandi on 8.11.2008. Thereafter, he was referred to I.G.M.C. Shimla. He was discharged from I.G.M.C. Shimla on 1.1.2009. He was admitted in G.M.C.H. Sector 32 Chandigarh for treatment on 14.1.2009 where he died on 4.2.2009. The injuries sustained by Raman Kumar, as per the opinion of doctor, R.H. Kullu were dangerous in nature and threatening to life. On the opinion of the doctor, section 307 of the Indian Penal Code was added. Post-mortem examination of the body of deceased Raman Kumar was got conducted and report was obtained. Thereafter, section 302 of the Indian Penal Code was also incorporated. The matter was investigated and after completing all the codal formalities, the challan was put up in the court. 4. Prosecution examined as many as 14 witnesses in all to prove its case against the accused. Statements of the accused under section 313 of the Code of Criminal Procedure were also recorded. They stated that they are innocent. The matter was investigated and after completing all the codal formalities, the challan was put up in the court. 4. Prosecution examined as many as 14 witnesses in all to prove its case against the accused. Statements of the accused under section 313 of the Code of Criminal Procedure were also recorded. They stated that they are innocent. Learned Additional Sessions Judge, Fast Track Court convicted and sentenced the accused as noticed hereinabove. 5. Mr. N.K. Thakur, learned Senior Advocate, on behalf of accused Nitin has vehemently argued that the prosecution has failed to prove its case against him. Mr. K.R. Kashyap and Mr. N.K. Sharma have vehemently argued that their clients were not involved in the alleged commission of offence. 6. Mr. Ramesh Thakur, learned Assistant Advocate General has supported the judgment passed by the learned Additional Sessions Judge, Fast Track Court. 7. We have heard the learned counsel for the parties and have gone through the record carefully. 8. PW- 1 Vikrant Thakur has testified that he and Raman were sitting inside the wine shop on 7.11.2008 at about 10.30 P.M. Accused Nitin Kumar came to wine shop and demanded beer. He handed over the beer to the accused. The beer was not chilled. Accused inquired as to why the beer was not chilled and started hurling abuses and asked as to where was the owner. The accused left. They pulled down half shutter. Raman Kumar came out to answer the call of nature. When he returned, accused Nitin Kumar was having arguments with him. He was hit on his left hand with the bottle of beer. Raman was taken outside. The shutter was pulled down and bolted from outside. Accused Sameer and Radhey were accompanying him when he gave beatings to him and took Raman Kumar out. When Raman Kumar was taken out, accused were giving him kick and fist blows on his stomach. There was country liquor shop at Sarwari. He made a call to that shop. Lalit and Ajay Kumar came from there. They opened the shutter. He came out of the shop. He saw accused were beating Raman Kumar. Accused ran way on seeing them. Ajay Kumar followed Nitin Kumar and caught him. Nitin Kumar fell down while running and suffered injury on his eye. A telephonic call was made to the police. Police arrived on the spot. They opened the shutter. He came out of the shop. He saw accused were beating Raman Kumar. Accused ran way on seeing them. Ajay Kumar followed Nitin Kumar and caught him. Nitin Kumar fell down while running and suffered injury on his eye. A telephonic call was made to the police. Police arrived on the spot. Raman Kumar was taken to hospital in a vehicle which was coming from Manali side. His statement Ex.PW- 1/A was recorded. He narrated the entire incident to the police. The police inspected the spot. Other accused were apprehended on 8.11.2008. They were identified by him. Raman Kumar was referred to Mandi and thereafter to I.G.M.C. Shimla. Raman Kumar was taken to hospital by Constable Lalit Kumar and Ajay. In his cross-examination, he has admitted that there is a patrol pump in front of their shop and on the other side of the road, which remains open for 24 hours, persons work there continuously. The width of the road is about 15 feet. He has denied the suggestion that Raman Kumar gave beatings to Nitin Kumar. He has stated to the police that accused has hit him with the beer bottle. He was confronted with his statement Ex.PW- 1/A wherein it is not so recorded. He has stated to the police that accused have given beatings on the stomach. He was confronted with his statement wherein, it has not been mentioned. He has admitted that there are many shops between his shop and Sarwari Bazaar. There are many residential houses between their shop and Sarwari Bazaar. 9. In his further cross-examination by other defence counsel, he has admitted that he stated to the police that he had called salesman from Sarwari telephonically. He has given the names of those persons in his statement. Confronted with Ex.PW-1/A wherein it is not so recorded. He has admitted that he has not stated the names of other accused in the FIR. Their names were disclosed on the next day when they were arrested. The police showed the accused to him on the next day at about 3 – 3.30 P.M. in the Police Station and inquired about them. He knew their names 2-4 days prior to the incident. They used to come to their wine shop. He did not mention the names of the accused as he could not identify them in the dark. 10. He knew their names 2-4 days prior to the incident. They used to come to their wine shop. He did not mention the names of the accused as he could not identify them in the dark. 10. He has also admitted in his further cross- examination by one of the defence counsel that there is a Dhaba after two shops from his wine shop. It was owned by Mahinder Kumar. Mahinder Kumar arrived at the spot when Nitin Kumar had come. He has denied the suggestion that Sameer did not take liquor. Volunteered that all the three were intoxicated. 11. PW-2 Lalit Kumar has testified that a telephonic call was received from Vikrant Thakur, salesman of Akhara Bazaar at 10.30 P.M. on 7.11.2008 that he was confined in the wine shop and Raman Kumar was taken out by Nitin, Sameer Gupta and Radhy Shyam. He went to the shop in a scooter with Ajay Kumar. When he reached at the wine shop, shutter was found down which was bolted from outside. He and Ajay went to the spot. All the accused were beating Raman Kumar by giving him kick and fist blow on his stomach. Raman Kumar was caught from one hand by all the accused and they were kicking him. Nitin Kumar was caught at the spot and other two accused ran away. Nitin Kumar fell down while running and he suffered injury on his eye. Sohan Lal informed the police telephonically. The police arrived at the spot. He, Ajay and Vikrant carried Raman Kumar to hospital. In his cross-examination he has deposed that he knew Nitin for about one year prior to the date of incident. He also knew his name. When Vikrant made call, he did not disclose the name of any person. He did not know about the occupation of Nitin. He has admitted that English and country liquor shops are located adjacent to each other at Akhara Bazaar. He has also admitted that the office of Truck Union and the place where the driver and conductor sit is located adjacent to wine shop at Akhara Bazaar. In his further cross- examination by one of the defence counsel, he has deposed that he mentioned the names of Radhey and Sameer. He was confronted with the statement Mark ‘A’, in which it was not so recorded. In his further cross- examination by one of the defence counsel, he has deposed that he mentioned the names of Radhey and Sameer. He was confronted with the statement Mark ‘A’, in which it was not so recorded. He knew all the three accused for one year prior to the incident. He has mentioned to the police that he was knowing the accused by name. He was confronted with his statement mark ‘A’, wherein it was not so recorded. There was a street light and light was coming from petrol pump. There was a street light at the rear and at the front. 12. PW-3 Dr. M.L. Bandhu has deposed that he advised ultra-sonographic examination as well as X-ray of Raman Kumar. He noticed the following injuries on the person of Raman Kumar: 1. Abrasion on left side of chest; 2. Contusion over left side of cheek; 3. Abrasion pm right side of cheek; 4. There was tenderness all over the abdomen. He was referred to Zonal Hospital, Mandi for further treatment. Thereafter, he was referred to I.G.M.C. Shimla. He gave his opinion that the injury was threatening to life and it could have been fatal had the treatment not been provided to the patient in time. He issued MLC Ex.PW3/A. The injury could have been caused within six hours of examination by means of blunt edged weapon, like kick and fist blows. One forceful kick was enough to cause the injury noticed by him in the abdomen. 13. Dr. P. Malhotra has deposed that the patient was referred as a case of blunt abdominal trauma with suspected pancreatic injury from Zonal Hospital, Mandi. Patient USG done in emergency at I.G.M.C. Shimla revealed haemoperitoneum cause pancreatic injury. The patient was sent for MRI. MRI was done on 13.11.2008. It revealed fracture of neck and proximal body of pancereas-gr IV pancreatic injury. The patient was operated in emergency on 14.11.2008. The patient was shifted to ICU where his condition remained critical but stable. The patient was subsequently developed pancreatic fistula with left pleural effusion and intra-abdominal collections for which the patient was managed conservatively under the expert guidance of unit incharge Prof. K. S. Jaswal. Thereafter, the patient was referred to P.G.I. Chandigarh on 1.1.2009. He issued treatment summary Ex.PW-4/A. 14. The patient was subsequently developed pancreatic fistula with left pleural effusion and intra-abdominal collections for which the patient was managed conservatively under the expert guidance of unit incharge Prof. K. S. Jaswal. Thereafter, the patient was referred to P.G.I. Chandigarh on 1.1.2009. He issued treatment summary Ex.PW-4/A. 14. PW-5 Sohan Lal has deposed that he was working as salesman in country liquor shop at Akhara Bazaar in the year 2008. English wine is located adjacent to the country liquor shop. There were two salesmen in the English wine shop, one Raman who has died and the name of other was not known to him. The accused were demanding beer from Raman on 7.11.2008 at about 10.15 P.M. Accused were saying that chilled beer should be supplied to them. Raman told that chilled beer was not available. The accused left and he closed his shop and slept. One guest was also sleeping in his shop. He heard some noise. The police officials of Police Post, Akhara Bazaar had told him to make a call in case of any emergency. He made call to the police from the shop. When he came out, he saw that accused Nitin was caught by 2-3 salesmen and police officials. He has not seen any injury to anyone. Other accused were not present at the spot. He was declared hostile. He was cross-examined by the Public Prosecutor. In his cross-examination by the Public Prosecutor, he has deposed that accused Nitin Kumar and Radhey Shyam came to the wine shop and demanded chilled beer. He has admitted that when Vikrant Thakur told that he was not having chilled beer, they started arguing with Vikrant Thakur. Vikrant Thakur shouted after sometime that he was bolted inside his shop. Raman Kumar was taken to hospital. His statement was recorded by the police. In his further cross-examination by the learned defence counsel, he has deposed that Vikrant had shouted to come out as there was a scuffle. When he came out, there was no scuffle and every body was sitting quietly. 15. PW-6 HHC Chander Prakash has proved copy of Rapat No.30 dated 7.11.2008 Ex.PW-6/A. 16. PW-7 LHC Kuldeep Kumar has deposed that a telephonic call was received in the Police Post, Akhara Bazaar on 7.11.2008 at about 10.30 P.M. He and HC Lal Chand went to the spot. Vikrant made statement to HC Lal Chand. 15. PW-6 HHC Chander Prakash has proved copy of Rapat No.30 dated 7.11.2008 Ex.PW-6/A. 16. PW-7 LHC Kuldeep Kumar has deposed that a telephonic call was received in the Police Post, Akhara Bazaar on 7.11.2008 at about 10.30 P.M. He and HC Lal Chand went to the spot. Vikrant made statement to HC Lal Chand. It was reduced into writing vide Ex.PW- 1/A. Injured was taken to hospital. He handed over the rukka to the police. 17. PW-8 ASI Nirmal Singh has deposed that the case file was handed over to him on 13.12.2008. He recorded the statements of Lalit, Ajay and Vikrant on 17.12.2008. 18. PW-9 Inspector Pratap Chand has deposed that statement of Vikrant Thakur Ex.PW- 1/A was recorded in the Police Station. He recorded FIR Ex.PW9/A. 19. PW-10 Inspector Prem Dass has prepared the challan. 20. PW-11 HC Lal Chand has deposed that a telephonic message was received in Police Post, Akhara Bazaar on 7.11.2008 at 10.30 P.M. about the quarrel. He and Kuldeep Kumar went to the spot for verification. Vikrant Thakur made his statement under section 154 of the Code of Criminal Procedure vide Ex.PW- 1/A. Raman Kumar was lying on the spot. An application for conducting his medical examination Ex.PW-11/A was prepared. Statement Ex.PW-1/A was sent to the Police Station through Kuldeep Kumar. Raman Kumar was also sent to R.H. Kullu for conducting his medical examination. Nitin Kumar was apprehended at the spot. He was taken to RH Kullu for treatment. MLC Ext. PW-3/A was obtained from the medical officer. He was admitted in the hospital. Nitin Kumar was sent for taking the X-ray of his eye. The treatment summary of Raman Kumar, Ext. PW-4/A and Ext. PW-4/B were obtained from I.G.M.C., Shimla. The medical opinion was sought from R.H. Kullu on the basis of treatment summary. In his cross-examination he has admitted that the petrol pump remains open for 24 hours. Some trucks remained parked in the truck union. He has admitted that there was a Dhaba near the place of occurrence. 21. PW- 12 ASI Baldev Singh has deposed that ASI Nirmal has handed over the case file on 21.12.2008 to him. Information was received from the Chandigarh Police on 4.2.2009 that injured Raman Kumar has died. He conducted the inquest on the dead body and prepared the report Ext. PW-12/A. An application Ext. 21. PW- 12 ASI Baldev Singh has deposed that ASI Nirmal has handed over the case file on 21.12.2008 to him. Information was received from the Chandigarh Police on 4.2.2009 that injured Raman Kumar has died. He conducted the inquest on the dead body and prepared the report Ext. PW-12/A. An application Ext. PW-12/A was written for obtaining the post mortem report of the deceased. Final opinion was not given in the post mortem report. He added section 302 of the Indian Penal Code on 6.2.2009. 22. PW-13 Dr. Vinay Kumar has deposed that Raman Kumar son of Baryam Kumar was admitted in their hospital on 14.1.2009. He had sustained blunt trauma abdomen with grade-IV pancreatic injury. Exploratory laparotony with digital pancreastectomy done on 14.11.08. Patient was operated in GMCH-32 on 31.1.2009 after initial resuscitation post operatively. Patient was shifted to ICU on the same day. He expired on 4.2.2009. He was not in a position to depose that the injury sustained by the patient was caused by way of fist or kick blows. The patient was already operated upon. According to him, the injury could have been caused by kick or fist blows or by operation. 23. PW-14 Dr. Amvreen Jyoti Sidhu has deposed that she has issued Ext. PW- 14/A. Patient died due to necrotizing pancreatitis with cardio pulmonary arrest. This injury could have been caused by way of kick and fist blows. 24. PW-1 Vikrant Thakur, has deposed that accused Nitin came to the wine shop and demanded beer. He handed over the beer to the accused. Beer was not chilled. Accused enquired as to why the beer was not chilled and started hurling abuses and asked as to where was the owner. The accused left. They pulled down the half shutter. Raman Kumar came out to answer the call of nature. When he returned, accused Nitin Kumar argued with him. He was hit on his left hand with the bottle of beer. Raman was taken outside. Shutter was pulled down and bolted from outside. Accused Sameer and Radhey were accompanying him when accused gave beatings to him and took Raman Kumar out. When Raman Kumar was taken out, accused were giving him kick and fist blows on his stomach. Statement of PW- 1 Vikrant Thakur was recorded under section 154 of the Criminal Procedure Code vide Ext. PW- 1/A. In Ext. Accused Sameer and Radhey were accompanying him when accused gave beatings to him and took Raman Kumar out. When Raman Kumar was taken out, accused were giving him kick and fist blows on his stomach. Statement of PW- 1 Vikrant Thakur was recorded under section 154 of the Criminal Procedure Code vide Ext. PW- 1/A. In Ext. PW- 1/A he has stated that on 7.11.2008 at 10.30 P.M., he was going to close the wine shop. Nitin son of Atma Ram resident of village Katrain alongwith another boy came and demanded beer. He told them that the beer was not chilled. Nitin asked him why the beer was not chilled and started hurling abuses to the owner. He started abusing them. He told them not to abuse. Nitin and other boy caught hold of him from scarf and started giving him beatings. They threw the cash. Raman Kumar had gone to urinate. When he was coming after urinating, accused Nitin Kumar and other boys gave kick and fist blows to Raman Kumar. Shutter was pulled down. Raman Kumar was taken out. The other people reached the spot. Rest of the accused ran away. Nitin Kumar was apprehended. PW- 1 Vikrant Thakur has not stated the names of accused Sameer and Radhey Shyam in Ex.PW-1/A. In his cross examination he has deposed that he has given the names of persons in his statement. However, when he was confronted with his statement, portion ‘A’ to ‘A’, it was not so recorded. He has only stated ‘other boy’. He has also admitted that he has not mentioned the names of other accused in the FIR. Their names were disclosed on the next day when the police showed the accused to him on the next day at about 3 – 3.30 P.M. in the Police Station. He knew their names 2-4 days prior to the incident. He did not disclose the names of the accused as he could not identify them in the dark. PW-2 Lalit Kumar in his cross-examination has deposed that there was street light and the light coming from petrol pump. There was street light at the rear and at the front. 25. It is surprising to note that when PW-1 Vikrant Thakur knew the names of accused why he did not mention the same in Ex.PW- 1/A on the basis of which FIR Ex.PW-9/A was recorded. There was street light at the rear and at the front. 25. It is surprising to note that when PW-1 Vikrant Thakur knew the names of accused why he did not mention the same in Ex.PW- 1/A on the basis of which FIR Ex.PW-9/A was recorded. Similarly, PW-2 Lalit Kumar in mark ‘A’ has not disclosed the names of the accused, though while appearing as PW-2 in the court, he has deposed that he knew them for the last one year. It is settled law that it is not necessary that the names of the accused are to be recorded in the FIR. FIR is not encyclopedia. However, in the present case contents of FIR were required to be corroborated. 26. PW- 1 Vikrant Thakur has deposed that accused Nitin Kumar, Sameer and Radhey Shyam gave beatings to him and took Raman Kumar out. The accused were giving him kick and fist blows on his stomach. There was a country liquor shop at Sarwari. He made a call to that shop. Lalit and Ajay Kumar came from the shop. They opened the shutter. He came out of the shop. He saw that accused were beating Raman Kumar. However, PW-2 Lalit Kumar though has deposed that he received a telephonic call from PW- 1 Vikrant Kumar, but they did not open the shutter. According to PW-2 Lalit Kumar, he went to the shop on a scooter. The shutter was found down which was bolted from out side. He made inquiries from Vikrant about Raman. He told that Raman was taken behind the shop. He and Ajay went to the spot. All the accused were beating Raman Kumar with kick and fist on his stomach. Raman Kumar was caught hold from one hand. All the accused were kicking him. Nitin Kumar was apprehended on the spot. PW- 1 Vikrant Thakur has also stated that he made a call to country liquor shop. PW-2 Lalit Kumar has deposed that he received telephonic call from Vikrant at 10.30 P.M. on 7.11.2008. Vikrant told that he was confined in the wine shop and Raman Kumar was taken out by Nitin, Sameer Gupta and Radhey Shyam. PW- 1 Vikrant Thakur has not stated that he disclosed the names of accused to him. According to PW2 Lalit Kumar, he knew Nitin Kumar for about one year prior to date of incident. Vikrant told that he was confined in the wine shop and Raman Kumar was taken out by Nitin, Sameer Gupta and Radhey Shyam. PW- 1 Vikrant Thakur has not stated that he disclosed the names of accused to him. According to PW2 Lalit Kumar, he knew Nitin Kumar for about one year prior to date of incident. In his cross-examination, he has deposed that the names of the accused were not disclosed to him by any person. They used to visit wine shop and they used to call each other by name. He was knowing all the three accused for one year prior to incident. Vikrant did not disclose the name of any person. They used to come to their shop. He was knowing all the three accused for one year prior to the incident. Statement of PW-2 Lalit Kumar was also recorded under section 161 of the Code of Criminal Procedure. According to him, he has only seen few boys giving beatings to Raman Kumar. If he knew the names of all the three accused one year prior to incident, he would have definitely disclosed their names in statement under section 161. The statement recorded under section 161 of the Code of Criminal Procedure is not a substantive piece of evidence; however, the same can be used for the purpose of contradiction and to impeach the credibility of a witness. 27. According to PW- 1 Vikrant Thakur, accused Nitin was apprehended on the spot. PW-5 Sohan Lal has deposed in his examination-in-chief that other accused were not present on the spot. He was declared hostile. He was not salesman in English wine shop. He was salesman in country liquor shop. In his cross-examination by the learned Public Prosecutor, he has deposed that accused Nitin Kumar and Radhey Shyam came to the wine shop and demanded chilled beer. Thereafter, he was not present on the spot. How could he say when he was not in the English wine shop that accused Nitin Kumar and Radhay Shyam came to the shop and demanded chilled beer and when Vikrant Thakur told that he was not having chilled beer, they started arguing with him. In case he was present there, he would have definitely intervened in the scuffle, which had taken place between the salesmen of English liquor vend and accused. In case he was present there, he would have definitely intervened in the scuffle, which had taken place between the salesmen of English liquor vend and accused. He has also denied in his cross-examination by the learned Public Prosecutor that accused were beating Raman Kumar towards the truck union. In his cross-examination by the Public Prosecutor by one of the learned defence counsel, he has deposed that when he came out, there was no scuffle and every body was sitting quietly. 28. PW-1 Vikrant Thakur and PW-2 Lalit Kumar in their statements have admitted that there is a petrol pump in front of the English vend. It remains open 24 hours and the persons work there continuously. The width of the road is about 15 feet. There is an office of truck union in Akhara Bazaar adjacent to their shop and many persons remain present there. PW- 1 Vikrant Thakur has also admitted that there are many shops between Akhara Bazaar and Sarwari. He has also admitted that there are many houses between Akhara Bazaar and Sarwari. 29. PW-2 Lalit Kumar has admitted that there is a Dhabba near the wine shop. He has also admitted that there is house of Sumeer Awasthi opposite to the wine shop and the house of Naresh Kumar is located towards the back side of wine shop. The police has not associated any witness either from the truck union of Akhara Bazaar or from the petrol pump. 30. According to PW-3 Dr. M.L. Bandhu has issued MLC Ex.PW-3/A. According to him, the patient was referred to Zonal Hospital Mandi for further treatment from where he was referred to I.G.M.C. Shimla. According to his opinion, the injury was threatening to life and it could have been fatal had the treatment not been provided to the patient in time. PW-4 Dr. P. Malhotra has deposed that the patient was operated in emergency on 14.11.2008. The patient was shifted to ICU where his condition remained critical but stable. The patient subsequently developed pancreatic fistula with left pleural effusion and intra-abdominal collections for which the patient was managed conservatively. He issued treatment summary Ex.PW-4/A. PW-13 Dr. Vinay Kumar has deposed that the patient was operated in GMCH-32. He was shifted to ICU. He has proved original Medico Legal case summary Ex.PW-13/A. According to PW-14 Amvreen Jyoti, patient died due to necrotizing pancreatitis with cardio pulmonary arrest. He issued treatment summary Ex.PW-4/A. PW-13 Dr. Vinay Kumar has deposed that the patient was operated in GMCH-32. He was shifted to ICU. He has proved original Medico Legal case summary Ex.PW-13/A. According to PW-14 Amvreen Jyoti, patient died due to necrotizing pancreatitis with cardio pulmonary arrest. The incident has taken place on 7.11.2008 and deceased Raman Kumar has died on 4.2.2009. He has died after two months and 28 days. It is also borne out from the statement of PW-3 Dr. M.L. Bandhu that the injury was threatening to life and it could have been fatal had the treatment not been provided to the patient in time. The condition of the patient deteriorated. He was shifted to Zonal Hospital, Mandi and thereafter to I.G.M.C. Shimla. He was operated in emergency on 14.11.2008 and ultimately died at Chandigarh on 4.2.2009. 31. What emerges from the appreciation of the evidence discussed hereinabove is that the prosecution has failed to prove that accused Sameer and Radhey Shyam were involved in the commission of offence. Their names have neither been mentioned in Ex.PW- 1/A nor in Ex.PW-9/A despite the fact that PW- 1 Vikrant Thakur knew their names 2-4 days prior to the date of incident. The prosecution has failed to link them with the commission of offence alleged against them. In fact, only Nitin Kumar was nabbed on the spot. In case other accused would have been there, they would have been nabbed with the help of police and the persons, who reached on the spot. The names of the accused were not disclosed at the earliest available opportunity, when the rukka was scribed on 7.11.2008 and in the FIR Ex.PW9/A. 32. No overt act has been attributed to accused Sameer and Radhey Shyam. After considering the facts and circumstances of the case, we are of the opinion that one can entertain a legitimate doubt about the presence and participation of accused in the occurrence, more particularly, when the names of accused Sameer and Radhey Shyam were neither stated in rukka Ex.PW- 1/A nor in FIR Ex.PW-9/A. Similarly, PW-2 Lalit Kumar has not given the names of the accused in mark ‘A’, which was recorded on 8.11.2008 itself. 33. The genesis of scuffle is that accused Nitin Kumar had asked for the beer. Beer was handed over to him by PW- 1 Vikrant Thakur. It was not chilled. 33. The genesis of scuffle is that accused Nitin Kumar had asked for the beer. Beer was handed over to him by PW- 1 Vikrant Thakur. It was not chilled. Nitin Kumar asked why the beer was not chilled. He inquired about the name of the owner of the vend. Thereafter, scuffle took place all of a sudden. It has come on record that Nitin Kumar had also received injuries on his eye. The sudden provocation was the refusal by PW- 1 Vikrant Thakur to supply chilled beer. Accused Nitin had no motive to cause death of the deceased or cause injury which was sufficient in ordinary course to cause death of the deceased. The injury has been caused by the accused Nitin Kumar to the deceased, which caused his death. The prosecution has failed to prove that it was a murder as defined under section 300 of the Indian Penal Code. The accused had no knowledge that the injury caused by him is likely to cause death of the deceased. He had no intention to cause death of the deceased. The accused was guilty for the commission of offence under section 304 Part II of the Indian Penal Code. He has wrongly been convicted under section 302 of the Indian Penal Code. 34. According to PW- 1 Vikrant Thakur, the shutter was pull down by the accused. He was wrongly restrained and confined in the vend. Lalit Kumar and Ajay Kumar came on the spot and opened the shutter. However, PW-2 Lalit Kumar has not deposed that they opened the shutter. The prosecution has failed to prove that PW- 1 Vikrant Thakur was wrongly confined and restrained by the accused. Thus, the prosecution has failed to prove charge under section 341 of the Indian Penal Code against the accused. 35. The prosecution has also failed to prove that accused have given beatings to PW- 1 Vikrant Thakur. He has not stated in his statement Ex.PW-1/A, on the basis of which FIR Ex.PW-9/A was registered that he was given beatings by the accused on his hand. He has made improvements from his earlier statement recorded under section 154 of the Code of Criminal Procedure. He was not even medically examined. 36. He has not stated in his statement Ex.PW-1/A, on the basis of which FIR Ex.PW-9/A was registered that he was given beatings by the accused on his hand. He has made improvements from his earlier statement recorded under section 154 of the Code of Criminal Procedure. He was not even medically examined. 36. Taking into consideration the statement of PW1 Vikran Thakur and PW-2 Lalit Kumar, in totality, it cannot be said that the accused have committed an offence punishable under section 504 of the Indian Penal Code. Thus, the prosecution has failed to prove charge under section 504 of the Indian Penal Code against the accused. 37. Accordingly, in view of the analysis and discussion made hereinabove, Criminal Appeal Nos. 225 of 2012 and 230 of 212 are allowed. Judgment dated 22.5.2012 in Sessions Trial No. 25 of 2009, qua accused Sameer Gupta and Radhey Shyam, is set aside. Accused Sameer Gupta and Radhey Shyam are acquitted of the charges framed against them. Fine amount, if any, already deposited by them is ordered to be refunded to them. Since the accused Sameer Gupta and Radhey Shyam are in jail, they be released forthwith, if not required in any other case. 38. The Registry is directed to prepare the release warrants of accused Sameer Gupta and Radhey Shyam and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith. 39. Appeal No. 236/2012 in Sessions Trial No. 25 of 2009 is partly allowed. Conviction recorded for the commission of offence under section 302 of the Indian Penal Code is set aside. However, accused Nitin is held guilty for the commission of offence under section 304 Part-II of the Indian Penal Code. Let the accused be heard on the quantum of sentence. He be produced in the Court on 17.7.2014.