JUDGMENT : Sureshwar Thakur, J. 1. The accused faced trial for theirs having allegedly committed offences punishable under Sections 302, 323, 147 IPC read with Section 149 IPC. However, the learned trial Court convicted the accused for offences punishable under Section 304 Part-II of the IPC besides for offences punishable under Section 147, 323 IPC read with Section 149 IPC. The learned trial Court, however, extended to the accused the benefit of Section 4 of the Probation of Offenders Act, 1958. 2. The accused No. 1 and 2 are aggrieved by the judgment of the learned trial Court whereby it has recorded findings of conviction against them qua offences punishable under Section 304 Part-II of the IPC besides for offences punishable under Sections 147, 323 IPC read with Section 149 IPC. However, through Criminal Appeal No. 4268 of 2013 the accused have assailed the findings of conviction recorded against them for theirs having committed offences punishable under the aforesaid provisions of law. 3. The State of Himachal Pradesh is aggrieved by the judgment of the learned trial Court whereby it has extended the benefit of Section 4 of the Probation of Offenders Act, 1958 to the accused. Hence, through appeal No. 170 of 2014 the State of Himachal Pradesh seeks reversal of the order rendered by the learned trial Court affording to the accused the benefit of Section 4 of the Probation of Offenders Act. Besides, the State of Himachal Pradesh stands aggrieved by the impugned judgment rendered by the learned trial Court whereby it found the accused guilty for theirs having committed punishable under Section 304 Part-II of the IPC besides for offences punishable under Sections 147, 323 IPC read with Section 149 IPC. Consequently, through appeal No. 172 of 2014 instituted before this Court by the State of H.P., the latter seeks the interference of this Court for setting aside the conviction of the accused under Section 304 Part-II of the IPC alongwith offences punishable under Sections 147, 323 IPC read with Section 149 IPC and substitution thereof with findings of conviction against the accused for theirs having committed offences punishable under Sections 302, 323, 147 IPC read with Section 149 IPC. 4. 4. The prosecution story, in brief, is that on 26.09.2012 at about 11.00/11.30 a.m shri Prithi Chand received a telephonic call from Ramesh Chand, father of Rohit Kumar, who told that there was a quarrel with his son and his son was taken to hospital at Barsar. On this, he tried to inquire about Rohit Kumar, but he could not find any clue and thereafter he hired a vehicle and started going towards Police Post Deotsidh. After 20- 25 minutes when he reached near a bridge at Shahtalai he received a telephonic call of Jagdev that a quarrel had taken place with Rohit and he has died. Then he came back and went to the house of Rohit Kumar. After some time, Arun, Rajnish and Sagar, etc. brought the dead body of Rohit to his house in a vehicle and on inquiry they told that Rohit had died because of quarrel. Thereafter Prithi Chand informed the police at Police Post Deotsidh. On this Inspector Anant Ram alongwith other police officials went to the spot. While reaching at the spot police recorded the statement of complainant Arun Kumar Ext.PW-1/A under Section 154 Cr.P.C in which he disclosed that he is studying in B.Com 2nd year in Baba Balak Nath Degree College, Chakmoh. On 22.09.2012 he had come to the college as usual. Since bus service to Shahtalai is very limited, he called Ashok Kumar alias Raj Kumar to come to Chakmoh with his vehile. After half an hour Ashok Kumar reached with his vehicle near the rain shelter at Chakmoh. 4-5 girls and boys sat in the said vehicle and started going towards Shahtalai at 2.30 p.m. When they were at some distance from Deotsidh, accused Sandeep Kumar alias Mintu, came from behind on a bike and stopped his bike in front of their vehicle and started misbehaving with a girl named Renu in the vehicle. They objected to it. On this, Sandeep Kumar threatened that he will see them at Chakmoh. He kept revenge with them. On 26.09.2012 he alongwith Ravinder and Rajnish came to the college in a private bus as usual and at 9.50 a.m after reaching the rain shelter they got down from the bus and sat in the rain shelter. In the mean time Rohit Kumar, came on his bike and sat with them. He kept revenge with them. On 26.09.2012 he alongwith Ravinder and Rajnish came to the college in a private bus as usual and at 9.50 a.m after reaching the rain shelter they got down from the bus and sat in the rain shelter. In the mean time Rohit Kumar, came on his bike and sat with them. At about 10.15 a.m six boys came sitting on two bikes from the side of Chakmoh and straightway came to them and started altercation on account of old enmity. At the same time those boys named Dinesh Kumar, Sandeep Kumar, Ajay Kumar and three other boys whose names he does not know but he can identify them formed an unlawful assembly and in prosecution of the common object of such assembly started beating Rajnish and Rohit with fist and kick blows. They gave beatings to Rohit so mercilessly that he fell down after becoming unconscious and then those boys fled away from the spot. Thereafter, he arranged a vehicle from Chakmoh and took Rohit in unconscious condition alongwith Rajnish and Sagar firstly to the hospital at Bijhar and then to Barsar where they had disclosed that accident had taken place and this was stated because of fear and they wanted quick treatment of Rohit by the doctors by disclosing it an accidental case. But when the doctors in the hospital at Barsar declared Rohit dead they brought him to his native village at Shahtalai. They narrated the whole incident to Prithi Chand Dhiman and members of family of Rohit. 5. The aforesaid statement Ext. PW1/A was sent through Constable Anil Kumar to Police Station Barsar for registration of a case, on which FIR Ext.PW25/A was recorded and endorsement Ext.PW25/B was made to this effect. The investigation of the case was entrusted to ASI Yudhbir Singh (PW-28) by the Inspector/SHO. However, Inspector Anant Ram (PW-29) made an application Ext.PW29/C to the Medical Officer for conducting medical examination of injured Arun Kumar and Rajnish, on which their medical examination was conducted by Dr. R.P. Sharma (PW2) vide MLCs Ext. PW20/A and Ext.PW20/B. The investigating officer ASI Yudhbir Singh (PW28) visited the spot and prepared the site plan Ext. PW28/A on the identification of Arun Kumar. R.P. Sharma (PW2) vide MLCs Ext. PW20/A and Ext.PW20/B. The investigating officer ASI Yudhbir Singh (PW28) visited the spot and prepared the site plan Ext. PW28/A on the identification of Arun Kumar. At the spot Rajnish Kumar produced his T-Shirt Ext.P1 to the investigating officer and after sealing the same in a cloth parcel Ext.P2 with seal impression T, it was taken into possession vide recovery memo Ext.PW1/B and the impressions of sample seal were taken on a piece of cloth Ext. PW28/B. He also recorded the statements of the witnesses under section 161 Cr. P.C. The investigating officer (PW28) interrogated accused Sandeep Kumar alias Mintu, Dinesh alias Happy and Ajay Kumar alias Aju and arrested them. On 27.09.2011 he (PW28) also arrested accused Rohit Kumar alias Rohtu, Vijay Kumar alias Rinku and Manoj Kumar alias Pammu. Thereafter, Inspector Anant Ram (PW29) prepared inquest papers Ext. PW29/E and Ext. PW29/F and dead body of deceased Rohit Kumar was sent through HC Vinod Kumar and Constable Kulwinder to R.H., Hamirpur for conducting his postmortem examination vide application Ext. PW29/D, on which his post mortem examination was conducted by Dr. Rakesh Dhiman (PW22) vide post mortem report Ext. PW22/A and then the dead body of the deceased was handed over to Tilak Raj vide Spurdari memo Ext. PW29/G. According to Dr. Rakesh Dhiman (PW22) all the injuries on the person of deceased were antemortem and were possible by fist and kick blows, whereas, injuries No.2 to 7 are possible if a person is banged against the wall or other hard surface and all the injuries on the person of deceased individually as well as in combination of others were sufficient in the ordinary course of nature to cause of death of a person. During post mortem examination of deceased Rohit, Dr. Rakesh Dhiman (PW22) had preserved his shirt (Ext.P15), vest (Ext. P16), underwear (Ext.P17) and pant (Ext.P18), which were packed in a cloth parcel (Ext.P14). After conducting post mortem of deceased PW22 Dr. Rakesh Dhiman reserved his final opinion for want of RFSL report and on receipt of report Ext. PW22/B he had given his opinion Ext.PW22/C to the effect that the deceased died due to haemorrhagic shock as a result of (1) haemothorax due to laceration of lung and (2) sub-arachnoid haemorrhage (brain). After conducting post mortem of deceased PW22 Dr. Rakesh Dhiman reserved his final opinion for want of RFSL report and on receipt of report Ext. PW22/B he had given his opinion Ext.PW22/C to the effect that the deceased died due to haemorrhagic shock as a result of (1) haemothorax due to laceration of lung and (2) sub-arachnoid haemorrhage (brain). During investigation on 28.09.2012 the investigating officer had taken into possession the Motercycle Hero Honda (A/f) vide recovery memo Ext. PW7/A from Rajeev Kumar, which was got mechanically examined through Ramesh Chand (PW9) vide report Ext.PW9/A. He had also taken into possession the Motorcycle bearing registration No. HP-21-A-3247 along with its documents from Harbans Lal (PW12) vide recovery memo Ext. PW7/B. 6. On the request of police, Shri Tek Chand (PW21), Assistant Director, RFSL, Gutkar, visited the spot and conducted crime scene investigation in the presence of police and during investigation the blood was noticed by the expert with the help of forensic kit and the same was collected with the help of cotton thread and preserved the same in four small paper packets (Ext. P3 to Ext. P6) and after sealing in a cloth parcel Ext. P7 with seal impression Y, it was taken into possession by the police vide recovery memo Ext. PW5/A. Thereafter Shri Tek Chand (PW21) also collected three white buttons (Ext.P10 to Ext. P12) near the stairs of gate No.2 and wrapped the same in small paper (Ext.P13) and put the same into empty match-box (Ext.P9) and packed in a cloth parcel (Ext.P8) and after sealing the same with seal Y taken into possession vide recovery memo Ext. PW5/B. He also made notes on small papers, which are Ext. PW21/A to Ext. PW21/E and issued his reports Ext. PW21/F and Ext.PW21/G. As per RFSL report Ext. PW2/F scuffle leading to injuries to the deceased might have occurred in the vicinity of rain-shelter and as per RFSL report Ext. PW21/G human blood was found on the shirt of deceased and blood lifted from the right side of boundary wall near gate and other places was found to be human blood. Sushil Sharma (PW6) also remained associated with the police during investigation by the expert and clicked photographs Ext.A1 to Ext. A24. 7. On 30.09.2012 during investigation Ramesh Kumar (PW13) produced the Motorcycle of the deceased Rohit Kumar. Sushil Sharma (PW6) also remained associated with the police during investigation by the expert and clicked photographs Ext.A1 to Ext. A24. 7. On 30.09.2012 during investigation Ramesh Kumar (PW13) produced the Motorcycle of the deceased Rohit Kumar. After mechanical examination and taking into custody police handed over the same on spurdari to him (PW13) vide memo Ext. PW8/A. Police also clicked photographs Ext. A25 to Ext. A27 of the Motorcycle before handing over the same on spurdari. On 15.10.2012 during investigation Patwari Shri Vijay Lakhanpal (PW15) visited the spot and conducted demarcation vide report Ext. PW15/A and produced Jamabandi Ext.PW15/B of land bearing Khasra No. 2225 and Tatima Ext. PW15/C to the police. On 14.10.2012 and 15.10.2012 during investigation Constable Raj Kumar (PW26) conducted videography of recording of statements of witnesses as well as the dead body of deceased Rohit Kumar and prepared CDs Ext. PW26/A and Ext. PW26/B of the same. The investigating officer ASI Yudhbir Singh (PW28) and HC Vinod Kumar deposited the case property with the MHC (PW25), who entered the same in the Malkhana Register, the abstracts of which are Ext. PW25/C and Ext. PW25/D. On 29.09.2012 and 01.10.2012 MHC (PW25) sent the said case property to RFSL, Gutkar (Mandi) through Constable Rajeev Kumar (PW23) vide RC Ext. PW25/E and through HHC Ashwani Kumar (PW27) vide RC Ext. PW25/F alongwith dockets Ext. PW29/H and Ext. PW29/K and letter Ext. PW29/J. RFSL reports Ext. PW29/L and Ext. PW21/G were received in Police Station Barsar vide letters Ext. PW29/M and Ext. PW29/N and the crime scene report was also received by the police vide letter Ext. PW29/O. As per report of RFSL Ext. PW29/L, the buttons Ext. P10 to Ext. P12 recovered from the spot of incident were found similar to the buttons on the shirt of deceased Ext. P15. 8. After completion of the necessary investigation, into the offences, allegedly committed by the accused/appellants, challan was filed before the learned trial Court under Section 173 of the Code of Criminal Procedure. 9. The accused/appellants were charged by the learned trial Court for theirs having committed offences punishable under Sections 302, 323, 147 IPC read with Section 149 IPC, to which they pleaded not guilty and claimed trial. 10. In order to prove its case, the prosecution examined as many as 29 witnesses. 9. The accused/appellants were charged by the learned trial Court for theirs having committed offences punishable under Sections 302, 323, 147 IPC read with Section 149 IPC, to which they pleaded not guilty and claimed trial. 10. In order to prove its case, the prosecution examined as many as 29 witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded, in which they pleaded innocence. . On closure of proceedings under Section 313 Cr.P.C., the accused were given an opportunity to adduce evidence, in, defence, and they chose not to adduce any evidence in defence. 11. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused/appellants. 12. The learned Deputy Advocate General has contended that the affording by the learned trial Court to the accused the benefit of Section 4 of the Probation of Offenders Act, 1958 being hinged upon untenable grounds besides irreverence to the gravity of the offence hence necessitates interference by this Court. He has further argued that the findings of acquittal recorded against the accused for theirs having committed offence punishable under Section 302 IPC is not anvilled upon proper appreciation of evidence, as such, necessitates interference by this Court. He has vociferously argued before this Court that this Court in exercise of its appellate jurisdiction substitute the conviction of the accused under Section 304 Part-II of the IPC alongwith offences punishable under Section 147, 323 IPC read with Section 149 IPC with findings of conviction against them under Sections 302, 147, 323 read with Section 149 IPC. 13. On the other hand learned counsel for the accused/appellants No. 1 and 2 has vehemently contended that the affording to the accused by the learned trial Court the benefit of Section 4 of the Probation of Offenders Act, 1958 stands anvilled upon a mature and balanced appreciation of evidence on record and does not necessitate any interference by this Court. He has also argued that the conviction of the accused No. 1 and 2 under Section 304 Part-II of the IPC alongwith for offences punishable under Sections 147, 323 IPC read with Section 149 IPC is not based on a proper appreciation of evidence on record, hence, necessitates interference. He has also argued that the conviction of the accused No. 1 and 2 under Section 304 Part-II of the IPC alongwith for offences punishable under Sections 147, 323 IPC read with Section 149 IPC is not based on a proper appreciation of evidence on record, hence, necessitates interference. He contends with force before this Court that the judgment of the learned trial Court recording findings of conviction against the accused No. 1 and 2 under Section 304 Part-II of the IPC besides for offences punishable under Sections 147, 323 IPC read with Section 149 IPC be setaside and replaced by findings of acquittal. 14. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 15. The instant case is hinged upon a vivid and graphic narration qua the incident having been rendered by the eye witnesses to the occurrence. The eye witnesses to the occurrence are PW-1, PW-2 and PW-3. PW-1 and PW-3 besides having ocularly witnessed the occurrence, also during the course of the ill fated incident sustained injuries on their respective persons. The principal eye witness who has supported the prosecution case is PW-1. He in his examination in chief has deposed that in the year previous to the recording of his deposition he was studying in B.Com, second year, in Baba Balak Nath Degree College, Chakmoh. He has proceeded to depose that the deceased Rohit was a resident of his village. On 22.09.2012 he had come to College as usual. His classes concluded at 2.00 p.m. Since bus service to Sahtalai is limited hence he called Ashok Kumar alias Raj Kumar to come to Chakmoh near rain shelter alongwith his vehicle. After elapse of half an hour Ashok Kumar reached there alonwith his vehicle. Subsequently, 4-5 boys and 4-5 girls sat in the vehicle and started towards Sahtalai. He deposes that when they were at some distance away from Deotsidh accused Sandeep Kumar alias Mintu, who is resident of village Jaral came from behind on a bike alongwith his two friends and stopped his bike in front of their vehicle. He proceeded to depose that thereafter Sandeep Kumar started teasing Renu. In his deposition he records the fact of theirs having objected to it and to permit them to go. He proceeded to depose that thereafter Sandeep Kumar started teasing Renu. In his deposition he records the fact of theirs having objected to it and to permit them to go. However, the accused has been deposed by him to have threatened them that he will see them at Chakmoh. Thereafter he deposes that they went to their houses. He continues to depose that on 25.09.2012 after attending college, he reached near rain shelter Chakmoh at about 2.00 p.m where he was called by Sandeep alias Mintu and the latter started altercation on account of the incident of 22.09.2012. The accused is alleged to have slapped him twice or thrice. However, PW-1 deposes that he returned to his house. He continues to depose that on 26.09.2012 he boarded a private bus alongwith Ravinder and Rajnish to come to their college. When they arrived near rain shelter at about 9.50 a.m and sat there then after some time deceased Rohit, student of B.Com second year also arrived there on his bike and sat alongwith them in the rain shelter. He deposes that when they were talking to each other then at about 10.15 a.m six boys came from the side of Chakmoh on two bikes and they stopped their bikes near rain shelter. Ajay alias Aju, Sandeep alias Mintu and Dinesh alias Happy have been deposed by him to be occupying one bike driven by Ajay Kumar. The registration number of that bike was HP21A-3247. Besides he deposes that another bike with applied for scribed on its number plate was occupied by Rohit alias Rohtu, Vijay alias Rinku and Manoj alias Pammu. He identified the accused in Court, though he deposes that the names of the aforesaid accused Rohit alias Rohtu, vijay alias Rinku and Manoj alias Pammu were disclosed to him by his friend subsequently yet he deposes that he can identify them. He deposes that all the aforesaid six boys came to him and accused Sandeep alias Mintu started altercating with him on account of the incident of 22.09.2012 besides started belabouring him. Subsequently, they belaboured Rajnish. Thereafter he deposes that they started belabouring deceased Rohit with fist and kick blows. The accused have been deposed by him to have caught deceased Rohit and pushed him with force begetting his head striking against the wall of rain shelter. Subsequently, they belaboured Rajnish. Thereafter he deposes that they started belabouring deceased Rohit with fist and kick blows. The accused have been deposed by him to have caught deceased Rohit and pushed him with force begetting his head striking against the wall of rain shelter. The deceased Rohit in sequel to his having been struck against the wall of the rain shelter has been deposed by PW-1 to have been rendered unconscious. On noticing that Rohit had become unconscious PW-1 deposed that the accused persons fled away from the site. However, PW-1, Ravinder, Rajnish and Sagar took Rohit to hospital at Bijhar and then to Barsar. At the aforesaid places he deposes that they told to doctors that Rohit had met with an accident. He deposes that they did not tell the doctors regarding the beating meted to Rohit by the accused persons as they were frightened that in case they told the aforesaid fact to the attending doctors then the deceased would not receive immediate medical treatment. The deceased was declared dead at Barsar hospital and thereafter they brought the body of the deceased to his house. On arriving there PW-1 deposes that they told the entire incident to Prithi Chand Dhiman and the family members of Rohit. After elapse of some time police reached the house of Rohit at village Maura near petrol pump and at about 3.00 p.m he made a complaint Ext.PW-1/A to the police. He deposes that he and Rajnish also sustained injuires in the aforesaid occurrence hence the police brought them to hospital at Barsar where they were medically examined. He has proved his signatures on MLC Mark-A. The police has been deposed to have reached alongwith them at the site of occurrence at about 6.30 p.m. The site plan was prepared by the police besides the police clicked photographs. The shirt which Rajnish was wearing and which begot tearings on account of beatings delivered upon him by the accused was handed over to the police. Blood stains were existing on the shirt. He deposes that the shirt was sealed in a parcel by the police. The sealed parcel was sealed with seal impression ‘T’. The seizure memo Ext.PW-1/B was prepared qua the aforesaid article in his presence and in the presence of Prithi Chand . He deposes that both signed the same. Blood stains were existing on the shirt. He deposes that the shirt was sealed in a parcel by the police. The sealed parcel was sealed with seal impression ‘T’. The seizure memo Ext.PW-1/B was prepared qua the aforesaid article in his presence and in the presence of Prithi Chand . He deposes that both signed the same. The seal after use has been deposed to have been handed over to Prithi Chand. Shirt Ext.P1 and parcel to this effect Ext.P-2 have been identified by the witness. In his cross-examination he has deposed that the distance between rain shelter and college is about 100-150 meters. He has further stated that the classes started at 10.00 a.m. He has in his cross-examination admitted qua the incident of 22.09.2012 he had not reported the matter to the police yet F.I.R. to the said effect was recorded on 27.09.2012. In his cross-examination he has also admitted the fact that accused Sandeep Kumar was not a student of BBN College, Chakmoh. 16. The testimony of PW-1 qua the incident which occurred on 26.09.2012 has stood corroboration on all scores by another eye witness PW-2. PW-2 has also identified the accused persons in Court. Besides PW-3 another injured eye witness to the occurrence has too lent corroboration to PW-1 and PW-2 qua the ill fated incident which took place on 26.09.2012. He has also alike PW-2 identified the accused in Court. PW-10 is Miss Renu Devi, to whom an attribution exists in the deposition of PW-1 of hers having been teased by accused Sandeep on 22.09.2012, which act of the accused invited dissuasion from PW-1 and led to threatenings having meted out to the latter by the accused and which incident is constituted by the prosecution to be the bedrock of the vendetta reared by the accused against PW-1 and its spurring the ill fated incident. However, PW-10 has not supported the prosecution case. 17. PW-20, who conducted the medical examination of PW-1 and PW-3, has pronounced in their respective MLCs comprised in Ext.PW-20/A and Ext.PW-20/B the following injuries:- Ext.PW-20/A. Swelling and tenderness over right temporal region and the size of the injury was 5x5 cms. I advised X-Ray skull both AP and Lateral view. After the radiologist opinion no fracture was found. Hence, I came to the conclusion that the injury was simple in nature. Ext. PW-20/B. 1. Swelling and tenderness over right parotid region. I advised X-Ray skull both AP and Lateral view. After the radiologist opinion no fracture was found. Hence, I came to the conclusion that the injury was simple in nature. Ext. PW-20/B. 1. Swelling and tenderness over right parotid region. The size of the injury was 3 x 4 cms. 2. Contusion and abrasion with defused margin on left temporal region and no lateral side of left eye. 3. Contusion over upper and lower eye lids of right eye. 4. Injury and tenderness over upper central incisor tooth. He advised X-ray for injury Nos. 1 and 2 and for dental opinion with respect to injury No.4. After receipt of report of Radiologist and that of dental surgeon, no fracture was detected. As such, he opined that all the injuries were simple in nature, caused within a probable duration of 4 to 12 hours prior to the time of examination. 18. PW-22 has proved post mortem report Ext.PW-22/A prepared by him . In Ext.PW-22/A he has recorded the factum of his having observed on the body of the deceased hereinafter extracted ante-mortem injuries:- 1. Multiple contusion in an area of 8 x 6 cm on forehead left side with size 1-2 cm each and reddish in colour. 2. Lacerated wound 1x0.2 cm on left upper eye lid, clotted blood was present on the wound, eye ball showed no injury. 3. Contusion 3 x 2 cm on left temporal area just in front of left pinna and reddish blue; 4. Contusion 1 x 1 cm on nose and reddish blue; 5. Contusion 6 x 4 cm on left parietal area of skull and reddish blue in colour. 6. Abraded contusion 12 x 8 cm on mid sternal area and reddish blue; 7. Contusion 5 x 4 cm on left upper abdomen and reddish blue. No other external injuries were seen. Cranium and Spinal Cord: Scalp, Skull and Vertebrae :- On reflecting scalp 6 x 4 cm on left pariental area and 5 x 3 cm on forehead without any fracture of skull. Membrane and Brain – showed gross sub-arachnoid haemorrage. Thorax:- Walls, ribs and cartilages:- Fracture of 3rd, 4th and 5th rib on left side chest in mid clavicular region. Pleurae – Rupture of pleaura on left side and haemothorax two litre blood present. Larynx trachea and right lung: - showed congestions. Membrane and Brain – showed gross sub-arachnoid haemorrage. Thorax:- Walls, ribs and cartilages:- Fracture of 3rd, 4th and 5th rib on left side chest in mid clavicular region. Pleurae – Rupture of pleaura on left side and haemothorax two litre blood present. Larynx trachea and right lung: - showed congestions. Left Lung- Showed laceration of upper lobe 3 x 2 x 1 cm. Pericardium, heat and large vessels were normal. ABDOMEN. Walls, Peritoneum, small, large intestines and organ of generation were normal. Mouth, pharynx and oseophagus showed congestion. Stomach and its contents:- Yellowish fluid was present. Liver, Spleen and Kidneys were pale. He has deposed that the demise of the deceased is attributable to haemothorax due to laceration of lung and subarachnoid hemorrhage. Besides he deposes that on receipt of chemical examination report Ext.PW-22/B he in Ext.PW-22/C attributed the demise of the deceased due to hemorrhagic shock as a result of 1) haemothorax due to laceration of lung and 2) sub-arachroid hemorrhage (brain). 19. The fulcrum of the prosecution case rests upon the deposition of eye witnesses to the occurrence. The ocular witnesses to the occurrence are PW-1, PW-2 and PW-3. Each of the aforesaid eye witness to the occurrence have rendered a graphic account qua the ill fated occurrence which took place on 26.09.2012 bereft of any inter se or intra se contradictions. Consequently, with their testimonies qua the incident being bereft of any inter se or intra se contradictions qua the incident renders their testimonies to be both credible as well as inspiring. As such, theirs having deposed in unison while each having attributed an inculpatory role to the accused of theirs having belaboured PW-1 and PW-3 besides having belaboured the deceased as also theirs having given him a hard push sequelling his striking against a concrete wall of the rain shelter begetting his being rendered unconscious and ultimately succumbing to the injuries sustained on his head, fillips an apt inference especially when the demise of the deceased has been attributed in Ext.PW-22/C to both (a) haemothorax due to laceration of lung and (b) sub--arachnoid hemorrhage (brain), that the hard push meted to the deceased by the accused sequelling his head to bang against the concrete wall of the rain shelter, begot his demise. The effect, if any, of the complainant having rendered to both PW-18 and PW-19, to whom the deceased was brought by the complainant and his companions, for affording medical treatment, the reasons for the occurrence of injuries on his person arising from an accident, and its hence purportedly benumbing the efficacy of the prosecution version comprised in the testimonies of the eye witnesses, gets eroded in the face of an explanation having been rendered by PW-1 in his testimony that the gravity of the critical condition of the deceased necessitating prompt and immediate medical treatment which would have remained unpurveyed in case a true narration of the occurrence was divulged to both PW-18 and PW- 19 especially when the explanation appears to be not specious so as to discardable moreso when there is no emanation in the testimonies of PW-18 and PW-19 qua the fact that for ascertaining the truth or otherwise of the narration qua the cause of injuries meted to them by PW-1 they had embarked upon a thorough and in-depth examination of the injuries existing on the body of the deceased. The propagation by the defence of the injuries suffered by the deceased being attributable to an accident suffered by the motor cycle on which he was borne stands overwhelmed by Ext.PW-9/A wherein there is no disclosure of the motorcycle on which the deceased was atop having suffered any damage connotative of its having faced an accident. In face thereof the mere revelation to both PW-18 and PW-19 by PW-1 of the injuries existing on the body of the deceased being attributable to an accident does not hence render the graphic account qua the occurrence rendered by the eye witness to be bereft of credibility. Besides the factum of pronouncement in Ext.PW-20/A and Ext.PW-20/B of injuries existing on the body of PW-1 and PW-3 renders the said enunciation to be in consonance with the version spelt out by both qua the occurrence wherein there is an attribution of an inculpatory role to the accused of theirs having belaboured both the witnesses aforesaid. Since the defence has omitted to cross-examine PW-1 and PW-3 qua the narration comprised in their respective examinations in chief of theirs having come to be belaboured by the accused necessarily then it is to be concluded that the injuries received by PW-1 and PW-3 are attributable to the accused. Since the defence has omitted to cross-examine PW-1 and PW-3 qua the narration comprised in their respective examinations in chief of theirs having come to be belaboured by the accused necessarily then it is to be concluded that the injuries received by PW-1 and PW-3 are attributable to the accused. Besides when the presence of the deceased alongwith the PWs aforesaid remains uncontroverted, it has to be concomitantly concluded that he too was belaboured by the accused. Apart therefrom the motor cycle on which the deceased was borne omits to pronounce as canvassed by the defence of it having suffered any damage in sequel to its having suffered an accident on account of whose occurrence the deceased purportedly suffered injuries on his head. As a corollary with want of evidence conveying the factum of the motor cycle on which the deceased was borne suffering any damage, the espousal by the defence that it, with the deceased borne on it suffered an accident sequelling head injuries on his person to which he succumbed, gets waned as well as benumbed. With this Court imputing implicit reliance to the testimonies of the eye witnesses, the vendetta reared by the accused Sandeep arising from an incident which occurred on 22.09.2012 hence spurring the occurrence on the ill fated day, though was concerted to be proved by the prosecution by examining PW-10, the college girl whose teasing by accused Sandeep was resisted by PW-1 leading the former to leave the site of occurrence with an articulation by him to avenge his ignominious exit by wreaking reprisal upon PW- 1 and his companions, yet even though PW-10 has not supported the prosecution case besides the occurrence of 22.09.2012 remains unreported, nonetheless even though the said occurrence purportedly comprising the motive for Sandeep to launch the assault on the deceased as well as on PW-1 and PW-3 may not have received sustenance from the evidence on record, yet when the testimonies of PW-1 and PW-3 qua the ill fated occurrence on 26.09.2012 remains unimpeached, as such, credible, naturally then the effect if any of the motive aforesaid in nursing the ill fated occurrence fades into oblivion nor can it discount the testimonies of the eye witnesses to the occurrence. 20. 20. The presence at the site of occurrence of all the accused stands mainifested in the testimonies of PW-1 and PW-3 both of whom have identified all the accused in Court. Even though Ext.PW-1/A and the F.I.R qua the incident omits to record therein the names of accused No. 4 to 6 Vijay Kumar, Manoj Kumar and Rohit Kumar, nonetheless the omission or non-inclusion of the names of the accused aforesaid in the complaint or in the F.I.R qua the incident does not rear an inference of their inculpation being contrived or engineered especially when the complainant has explained the reasons for the non inclusion of their names in the complaint, rather when he has stated that he does not recall their names yet has bespoken that they had come on a bike and can identify them later which he proceeds to do so in Court alongwith PW-2 and PW-3. 21. The deposition of PWs 1 to 3 underlines the evident fact of the accused having belaboured the deceased and theirs having pushed him against the concrete wall of the rain shelter sequelling injuries on his head begetting his demise. However, the push as meted out by the accused to the deceased has not been deposed by the ocular witness to the occurrence to be with the intention that it would beget the sequel of the head of the accused banging against the concrete wall of the rain shelter nor is there evidence on record that the accused clutched the head of the deceased and banged it against the concrete wall of the rain shelter. The accused being unarmed and theirs having hence not at the stage of theirs commencing to belabour the deceased nursed any intention to dispense with his life construed in conjunction with the fact that they had given a hard push without clasping or clutching his head which in case they did would have spurred an inference of theirs intending to hence by clasping it and then subsequently bang it against the concrete wall of the rain shelter beget the fatal injuries on his head, yet when they did not either hold or clutch his head and then banged it against the concrete wall of the rain shelter rather when they merely delivered a hard push to the deceased which was not intended to be with the intention to strike his head against the concrete wall of the rain shelter, it cannot be held that as such they bore the necessary mens rea in their mind to dispense with the life of the deceased. Cumulatively it is to be held that though they had knowledge that in case their hard push meted by them to the deceased would have the ensuing effect of the head of the deceased banging against the concrete wall of the rain shelter, yet they did not have the requisite mens rea to commit an offence under Section 302 IPC, as such, the incriminatory role attributed to the accused by PW-1 is encompassed within the domain of Section 299 of the IPC. Consequently, they are amenable to punishment under Section 304 Part-II of the IPC besides for offences punishable under Section 147, 323 IPC read with Section 149 IPC. Since all the accused were present together at the site of occurrence when the deceased was given a hard push resulting in his head banging against the concrete wall of the rain shelter sequelling injuries on his head to which he ultimately succumbed besides when each of the accused has been deposed by the ocular eye witness to have caught hold of deceased Rohit and then pushed him with force sequelling his head banging against the concrete wall of the rain shelter, as such, all the accused are to be held to be carrying in their respective mind the common object to hence beget the sequel which ultimately occurred. 22. 22. For the reasons aforesaid this Court is constrained to allow the appeal filed by the State of Himachal Pradesh being Criminal Appeal No.170 of 2014 whereby the benefit of Section 4 of the Probation of Offenders Act, 1958 was extended to all the accused. However, the appeals filed by accused No. 1 and 2 being Criminal Appeal No. 4268 of 2013 and Criminal Appeal No. 172 of 2014 filed by the State are dismissed. The Judgment of the learned trial Court convicting the accused for theirs having committed offences punishable under Section 304 Part-II of the IPC besides for offences punishable under Sections 147, 323 IPC read with Section 149 IPC, is maintained and affirmed. Accused be produced for hearing on quantum of sentence on 28.08.2015.