JUDGMENT : Prakash Gupta, J. 1. Having been convicted by the Additional Sessions Judge, Fast Track No.2, Dholpur by the judgment dated 12th August, 2005, the appellant has approached this Court. 2. By the said judgment, the learned Judge had convicted the appellant for offence under Section 302/34 IPC and by an order of even dated, sentenced him to undergo life imprisonment with fine of Rs.2000/-. In default thereof, to further suffer simple imprisonment for one year. 3. Briefly, the facts of the case are that on 23.12.2002, Matadeen-(PW-2) submitted a written report (Ex.-P-4) before the Police Station Mania, District Dholpur. The said written report when translated into English reads as under:- To, The Station House Officer, Police Station, Mania. Sir, It is submitted that today on 23.12.02 4/5/2003 at about 9.00 in the morning, I and Jandel, Tejsingh and Prahlad all the brothers were irrigating the field situated near to our house and our mother Santi was managing the cow-dung then Ram Ratan son of Chetram, Ram Naresh son of Bhanwar Singh, Sutra Ram son of Ram Ratan, Ram Varan son of Ram Ratan, by caste Thakur resident of our village hurling abuses came there. Ramratan had a farsa, Ram Naresh, Sugram and Ramvaran were having lathies and started abusing our mother Santo. My brother Prahlad asked them not to do so then Ram Naresh inflicted a lathi blow, Ramratan inflicted farsa blow on the head and also inflicted lathi blow to me. Ramratan inflicted a farsa blow on the head of Prahlad due to which Prahlad fell down on the ground and while Prahlad was lying on the ground, they inflicted farsa and lathi blows. Jandel also inflicted lathi blow. With intention to kill him, they also inflicted a lathi blow on his person which landed on his left hand. In the meantime, my brothers Vinod and Suresh etc. came there who saved us. When we were taking Prahlad to Dholpur for his treatment, in the way Prahlad died, whose dead body is lying in the hospital. Therefore, report is being submitted for legal action. Applicant sd/- Matadeen S/o Swami Sobren Singh, by caste Thakur, aged 40 years, R/o, Vintipura 4. On the basis of this written report (Ex.-P-4), a formal FIR (Ex.-P-5), namely, FIR No.417/2002 was chalked out for offence under Sections 323,341 and 302 read with Section 34 IPC on 23.12.2003 itself. Therefore, report is being submitted for legal action. Applicant sd/- Matadeen S/o Swami Sobren Singh, by caste Thakur, aged 40 years, R/o, Vintipura 4. On the basis of this written report (Ex.-P-4), a formal FIR (Ex.-P-5), namely, FIR No.417/2002 was chalked out for offence under Sections 323,341 and 302 read with Section 34 IPC on 23.12.2003 itself. Inquest report of the deceased (Ex.-P-1) was prepared in the presence of motbirs. Post mortem on the body of deceased, Prahald, was conducted at General Hospital, Dholpur and Post mortem report (Ex.-P-9) was prepared. Injuries of injured Matadeen and Jandel were examined by Medical Officer, PHC Mania and injury reports (Ex.-P-7) and (Ex.-P-8) were prepared. Accused-appellant, Ramnaresh, was arrested on 25.3.2004 vide arrest memo (Ex.-P-26) and weapon of offence i.e. farsa was also recovered. Statements of the witnesses were recorded. 5. After completion of the investigation, charge sheet was filed against co-accused Ramvaran, Ramratan and Sutraram. Ramvaran and Ramratan (since deceased) indicted to trial in session case No. 24/2003 and accused Suratram indicted the trial in session case No. 50/2003, before the Additional Sessions Judge Fast Track No-1, Dholpur for the offence under Section 323, 341, 302/34 of IPC. The Additional Sessions Judge (Fast Track) No.1 Dholpur disposed of both the aforementioned sessions trials by common judgment dated 17/02/2004, by which accused Ramvaran and Suratram were acquitted under Section 302 of IPC but convicted of the charge under Section 323 of IPC and sentenced to imprisonment for 6 months. Accused Ramratan died and proceedings in respect of him stands abated. 6. From the facts of the case, it is revealed that accused Ramnanresh could not be arrested and investigation against the accused-appellant was kept pending under Section 173(8) and later on separate charge sheet was filed against him. The case was committed to the learned trial court. The appellant was charged with the offence under Sections 302/34 and 323 IPC. He denied the charges, and claimed trial in Session case No. 76/2004. 7. In order to support its case, the prosecution examined twelve witnesses, and exhibited twenty eight documents. Statement of accused-appellant was recorded under Section 313 Cr.P.C. wherein he denied the allegations and claimed that he has been falsely implicated in the case. However, no evidence, either oral or documentary, was produced by the accused appellant. 8. 7. In order to support its case, the prosecution examined twelve witnesses, and exhibited twenty eight documents. Statement of accused-appellant was recorded under Section 313 Cr.P.C. wherein he denied the allegations and claimed that he has been falsely implicated in the case. However, no evidence, either oral or documentary, was produced by the accused appellant. 8. After going through the documentary and oral evidence, by the impugned judgment dated 12th August, 2005, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 9. We have heard learned counsel for the appellant and learned Public Prosecutor. 10. Shri Biri Singh, Sr. Advocate, learned counsel for the appellant argued that the learned trial court has not correctly appreciated the evidence of the alleged eye-witnesses. It is a case of over implication of the accused persons. The co-accused Ramvaran and Suratram were tried by the Additional District & Session Judge (Fast Track) No. 2 Dholpur in session case No. 24/2003 and 50/2003. Both the cases were decided by common order dated 17/02/2004. In the judgment, the learned trial Court categorically held that at the most for causing the injury on the person of Prahlad deceased, the case did not travel beyond Section 304 Part II IPC. Therefore no case is made out against the appellant for offence under Section 302 IPC. In the previous judgment dated 17/02/2004, it was also held by the learned trial Court that accused cannot be convicted with the aid of Section 34 IPC on the ground that it is proved beyond doubt that the accused persons did not gather there with the intention of causing death of the deceased. It was also stated that in that case Ramvaran and Suratram were convicted only for the offence under Section 323 IPC. The learned trial Court has not appreciated the evidence on record in right perspective. (PW-1) to (PW4) and (PW-10) were examined in the previous trial before the learned trial Court and all these witnesses have categorically stated in the previous trial that only one lathi blow on the Skull of Prahlad deceased was inflicted by the appellant. It is also stated that PW6 Dr. Amrish Kumar has specifically stated that on external appearance he mentioned the depressed fracture but on internal examination he found one fracture on occipital and parietal region. It is also stated that PW6 Dr. Amrish Kumar has specifically stated that on external appearance he mentioned the depressed fracture but on internal examination he found one fracture on occipital and parietal region. Therefore, the conviction of the accused appellant for offence under Section 302/34 IPC is not sustainable. On the strength of the above arguments, learned counsel for the appellant prayed for acquittal of the appellant. 11. Learned Public Prosecutor, on the other hand, has supported the judgment of the learned trial court and submitted that the impugned judgment calls for no interference, as from the statements of the eyewitnesses it is clear that their presence at the place and time of the occurrence cannot be disbelieved and that they have categorically described the role of the appellant regarding his inflicting injuries to the deceased. Hence, the learned Public Prosecutor prayed for dismissal of the appeal. 12. Before we deal with the contentions of the respective parties, the appellant and the learned Public Prosecutor, it would be appropriate to first consider the evidence produced by the prosecution. 13. (PW-1)-Tejsingh has stated that in the morning of 23/12/2002 at 9:00 AM his mother was making cow dung cakes at the back side of our house, he, Matadeen, Jandel, Prahlad were watering their fields. In the meantime Ramratan, Ramnaresh, Suratram and Ramvaran came hurling abuses to his mother. Ramratan was having farsa and Ramnaresh, Ramvaran and Suratram were having lathis in their hands. His brother Prahlad told them not to hurl abuses upon which Ramratan said is this land belongs to you. Prahlad and his brother told that the mother making cow dung in our land do not abuse. Ramnaresh gave two blows of lathi on the head of Prahlad. Ramratan hit on the head of Prahlad from the back side of farsa. Prahlad fell down. Suratram and Ramvaran gave lathi blow to Prahlad while he was grounded. His mother, Jandel and Matadeen came to save Prahlad. Ramvaran and Suratram gave lathi blows on both the hands of Jandel. Ramnaresh gave a lathi blow on the left hand of Matadeen then Vinod etc. of their village came, seeing them the accused decamped. Prahlad was brought to Dholpur for treatment where he was declared dead in the hospital. It was also stated quarrel took place because the accused were objecting to the land where his mother was making cow dung cakes. of their village came, seeing them the accused decamped. Prahlad was brought to Dholpur for treatment where he was declared dead in the hospital. It was also stated quarrel took place because the accused were objecting to the land where his mother was making cow dung cakes. 14. (PW-2)-Matadin has stated that his brother Prahlad died about 1 year and 8 months ago. In the morning, at 9:00 AM, his mother Santo was making cow dung cakes. During this near by field Prahlad, he, himself, Tej Singh and Jandel, all four brothers were watering the field. In the meantime, Ramratan, Ramnaresh, Suratram and Ramvaran came towards his mother hurling abuses. Ramratan was having a farsa and Ramnaresh, Suratram and Ramvaran were having lathi in their hands. Tej Singh and Prahlad reached there. Prahlad stopped them from hurling abuses then Ramnaresh gave two lathi blows on the head of Prahlad, Ramratan gave a farsa blow from back on the head of Prahlad and Ramvaran and Suratram also gave lathi blows on the head of Prahlad owing to which he fell on the ground. Ramnaresh gave a lathi blow on his left hand. Suratram and Ramvaran both gave lathi blows on the head of his brother Jandel. Having heard their cries, Vinod etc. came. The accused ran away upon seeing them. We took Prahlad to Dholpur for treatment, he died on route. It has further been stated by this witness that the accused wanted to take our land falsely and that they killed Prahlad. 15. (PW-3)-Jandel, has stated that his brother Prahlad died about 1 year and 9 months ago. In the morning at around 9:00 AM his mother was making cow dung cakes at the back of their house, I, Prahlad, Tej Singh and Matadeen, all the four brothers, were watering the field. Ramnaresh, Suratram, Ramvaran, Ramratan armed with lathies and farsa came towards our mother and hurled abuses. His brother, Prahlad, stopped them from hurling abuses, upon which Ramnaresh gave a lathi blow on the head of Prahlad, Suratram gave a lathi blow on the head of Prahlad. Ramratan gave a blow from the back on the head. Ramvaran also gave a lathi blow on the head of Prahlad because of which he fell to the ground. Ramnaresh gave a lathi blow to him while he was lying on the ground. Suratram and Ramnaresh also gave lathi blows. Ramratan gave a blow from the back on the head. Ramvaran also gave a lathi blow on the head of Prahlad because of which he fell to the ground. Ramnaresh gave a lathi blow to him while he was lying on the ground. Suratram and Ramnaresh also gave lathi blows. His brother, Matadeen & he went to save Prahlad. Ramvaran and Suratram gave lathi blow on both his arms. Ramnaresh hit a lathi blow on the hand of Matadeen. Vinod etc. came to the scene, upon seeing them the accused ran away from there. Prahlad was brought to Dholpur Hospital where he was declared dead. It was further stated that the accused killed their brother because they wanted our land. 16. (PW-4)-Santo has stated that her son Prahlad died about 10 months ago. In the morning at 9 O'clock, she was making cow dung cakes at the back of her house. Ramnaresh, Ramratan, Suratram, Ramvaran stopped her from making cow dung cakes and hurled abuses. Ramratan was having farsa, Ramnaresh, Ramvaran and Suratram were having lathies in their hands. Prahlad stopped them from hurling abuses. Jandel, Matadeen and Tejsingh were also watering the fields. They also came to the scene of occurrence. Ramratan gave a farsa blow from the back on the head of Prahlad. Ramnaresh gave a lathi blow on the head of Prahlad due to which he fell down. Suratram, Ramvaran, all four hit lathi blows while he was on the ground. When her son Matadeen and Jandel came to save Prahlad, both were also given lathi blows. Both suffered injuries on their hands. Other persons from village came and the accused decamped. Prahlad was taken to Dholpur for treatment, he died while he was taken to the hospital. She was making cow dung cakes at her place, and for this reason the accused quarreled with us. 17. (PW-5)-Dr. Virendra Bhaskar has stated that on 23/10/2002, he was posted as Medical Officer at PHC Nawa. Upon the request of Police, he medically examined Matadeen & Jandel, three injuries each were found on their person which were simple in nature. 18. (PW-6)-Dr. Amrish Kumar Sengar has stated that on 23/12/2002, he was posted as Medical Jurist at General Hospital Dholpur. He conducted the postmortem on the dead body of deceased Prahlad at 11:45 AM. Upon the request of Police, he medically examined Matadeen & Jandel, three injuries each were found on their person which were simple in nature. 18. (PW-6)-Dr. Amrish Kumar Sengar has stated that on 23/12/2002, he was posted as Medical Jurist at General Hospital Dholpur. He conducted the postmortem on the dead body of deceased Prahlad at 11:45 AM. The following injuries were found on his person:- 1- QVk gqvk ?kko 5 xq.kk 1@2 ls-eh- gM~Mh rd xgjk] flj ds vkElhihVy Hkkx ijA 2- QVk gqvk ?kko 3 xq.kk 1@2 ls-eh- gM~Mh rd xgjk flj cka, iSjkbVy Hkkx ij feM ykbu esaA 3- QVk gqvk ?kko 4 xq.kk 1@2 ls-eh- gM~Mh rd xgjk flj ds iSjkbVy Hkkx ij feM ykbu esaA ckabZ iSjkbVy cksu ,oa vkDlhihVy cksu dk fMQzs’k QzsDpjA ;g lHkh pksVsa e`R;q iwoZ dkfjr dh xbZ FkhA czsu ds Åij dh f>Yyh;ka cka, iSjkbVy ,oa vkElhihVy Hkkx esa QVh gqbZ ikbZ x;hA lc M;wjy gsejstA czsu fV’;w ck,a iSjkbVy ,oa vkElhihVy Hkkx esa QVk gqvk ik;k x;kA esjh jk; esa e`rd dh e`R;q czsu fV’;w ij pksVksa ls ‘kkWd ds dkj.k gqbZ FkhA 19. (PW-10)-Vinod has stated that about 2 years ago, he was working in his fields, while his mother was making cow dung cakes. Ramnaresh, Suratram, Ramvaran, Ramratan came armed with lathies and abused their mother as to why she was making cow dung cakes. Prahlad stopped all the four accused from abusing. Upon which, Ramnaresh gave a lathi blow on the head of Prahlad and Ramratan gave a farsa blow from back on the head. They rushed to save Prahlad upon which Matadeen and Jandel were also given lathi blows. Due to the lathi blow, Prahlad fell down. He was taken to Dholpur Hospital. Parhlad had died. 20. PW-11 Suresh stated that about 2 years ago around 8-9 AM in the morning, he heard noises coming from the back of the house of Prahlad. He reached at the spot and saw Ramratan hitting Prahlad with a Jeriya. He had not seen any one else. During the scuffle, Ramnaresh was coming towards the scene of occurrence from his house. Suratram and Ramvaran were also standing there. He saw Prahlad lying there. Prahlad was taken to Dholpur, who is now dead. Prahlad had died due to lathi blows inflicted by Ramratan. 21. (PW-12)-Megchand Meena has stated that on 23/12/2002 he was posted as SHO P.S. Nawa. During the scuffle, Ramnaresh was coming towards the scene of occurrence from his house. Suratram and Ramvaran were also standing there. He saw Prahlad lying there. Prahlad was taken to Dholpur, who is now dead. Prahlad had died due to lathi blows inflicted by Ramratan. 21. (PW-12)-Megchand Meena has stated that on 23/12/2002 he was posted as SHO P.S. Nawa. In his deposition, he proved the necessary memos, recovery of articles upon the disclosure statements of the accused. He stated that an offence was found proved against accused Ramnaresh but he could not be arrested and, as such, investigation was kept pending against him under Section 173(8) of Cr.P.C. He later on arrested accused Ramnaresh. 22. We have given our anxious consideration and scanned the material on record. The prosecution case, as unfolded, is that when (PW-4)-Santo was making cow dung cakes at the back of her house, the accused persons came and hurled abuses towards her and prevented her from making cow dung cakes. At that time, (PW-1)-Tej Singh, (PW-2)-Matadeen, (PW-3)-Jandel and deceased Prahlad were watering their field. They came to the scene of occurrence and Prahlad stopped the accused from hurling abuses then the incident took place. When Prahlad was being taken to hospital he succumbed to injuries. 23. In the FIR, four person, namely, Ramratan, Ramnaresh, Suratram and Ramvaran were named and it has been alleged that Ramnaresh inflicted a lathi blow on the head of deceased Prahlad, Ramratan gave a farsa blow on the head of deceased and when the deceased fell down, lathi and farsa blows were inflicted on his person by the accused. 24. (PW-2)-Matadeen is an injured eyewitness and his presence at the scene of occurrence is natural. He deposed that Ramnaresh inflicted two lathi blows on the head of Prahlad. But in his cross-examination he has stated that the accused Ramnaresh inflicted two lathi blows on the head of the deceased is neither mentioned in his police statement (Ex.-D-2) nor in his previous court statement in the trial of other co-accused arising from the same FIR. (PW-3) Jandel is another injured eyewitness of the case. In his examination-in-chief he stated that Ramnanresh gave a lathi blow on the head of the deceased but in his cross-examination he stated that Ramnaresh gave two lathi blows to the deceased when he had fallen down. (PW-3) Jandel is another injured eyewitness of the case. In his examination-in-chief he stated that Ramnanresh gave a lathi blow on the head of the deceased but in his cross-examination he stated that Ramnaresh gave two lathi blows to the deceased when he had fallen down. He has further stated that he had seen Ramnaresh giving one lathi blow on the head of the deceased while the deceased was standing. 25. (PW-4)-Santo is another eyewitness of the case. She has stated that Ramnaresh inflicted a lathi blow on the head of the deceased. (PW-1)-Tej Singh, another eyewitness has deposed that Ramnaresh inflicted two lathi blows on the head of the deceased. But in his cross-examination he has stated that this fact of inflicting two lathi blows has not been mentioned in his police statement (Ex.-D-1) nor in his previous Court statement in the trial of the other co-accused arising from the same FIR. 26. (PW-10)-Vinod another eyewitness of the case has deposed that Ramnaresh gave two lathi blow upon the head of deceased but this fact of inflicting two lathi blows has not mentioned in his police statement (Ex.-D-5) and thus, the statement of (PW-1) and (PW-3) and those of other witnesses are contradictory regarding the number of lathi blows given by accused Ramnaresh upon the head of the deceased. But from the testimony of all the prosecution witnesses, the presence of accused Ramnaresh and his involvement in the incident is proved beyond reasonable doubt. 27. As per the medical evidence, three head injuries were found on the person of deceased. From the testimony of prosecution witnesses, it is proved beyond doubt that the author of one head injury was Ramratan (since deceased) as all prosecution witnesses have deposed in unequivocal terms that accused Ramratan gave one farsa blow on the back of head of the deceased Prahlad. 28. Now the question remains as to who is the author of other two head injuries, the prosecution witnesses have also deposed that the accused persons hit the deceased with lathies when he had fallen down but as per the postmortem report no other injury except the above mentioned three head injuries was found on the person of the deceased. 29. In the FIR, which was lodged without any delay does not mention the fact that accused Ramnaresh inflicted two blows on the head of the deceased Prahlad. 30. 29. In the FIR, which was lodged without any delay does not mention the fact that accused Ramnaresh inflicted two blows on the head of the deceased Prahlad. 30. As discussed above, there is contradiction in the testimony of the eyewitnesses as to whether accused Ramnaresh inflicted one or two lathi blows on the head of the deceased Prahlad and thus, we are of the view that the testimony of eyewitnesses suffers from exaggeration and in order to derive corroboration of medical evidence. They increased the number of lathi blows from one to two qua accused Ramnaresh. Since all the eyewitnesses are interested witnesses, we have to visualize their testimony with great circumspection. 31. After going through the material on record, we do not hesitate to hold that accused Ramnaresh inflicted one solitary blow of lathi on the head of deceased Prahlad. 32. Now we shall determine as to what offence has been committed by accused Ramnaresh. As per the prosecution story, the incident occurred on trifle issue of making cow dung cakes by the mother of the deceased. The accused came, armed with farsa and lathi to prevent Santo from making cow dung cakes over the place where she was making it and thus, the common intention was only to give a lesson and not to cause death. The accused gave one solitary blow on the head of the deceased and he had not repeated his blow. The farsa was used by other accused Ramratan. No other injury except three head injuries were found on the person of the deceased though the number of accused were stated to be four, armed with farsa and lathies. The medical evidence suggest that the cause of death was the effect of three head injuries. It has not been suggested whether any one injury on the head, individually was sufficient to cause death of the deceased in the ordinary course of nature. There is no evidence to show that there was any prior intention of the accused to kill the deceased therefore, does not attribute intention accompained with knowledge to accused-appellant of causing the death of deceased Prahlad or such bodily injury as was likely to cause death. Therefore, in the circumstances of the case cause us to believe that the act of accused Ramnaresh does not travel beyond Section 304 part-I read with Section 34 of IPC. 33. Therefore, in the circumstances of the case cause us to believe that the act of accused Ramnaresh does not travel beyond Section 304 part-I read with Section 34 of IPC. 33. Accordingly, the appeal is partly allowed in the following manner:-Conviction and sentence recorded against accused appellant under Section 302/34 IPC is set aside. Instead, he is convicted for offence under Section 304 Part I read with Section 34 IPC and sentenced to imprisonment for a period of ten years and fine of Rs.500/-, in default of payment of fine, he shall undergo simple imprisonment for a further period of one month. However, we uphold his conviction and sentence for the offence under Section 323 IPC as awarded by the trial Court. He is in District Jail, Dholpur. He be set at liberty if he has already undergone that much sentence and not required to be detained in any other case. However, keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Ram Naresh is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- (Rupees Twenty Thousand only) and a surety bond in the like amount before the trial court. The bonds, so furnished shall be effected for a period of six-months. The bond shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.