JUDGMENT 1. - This appeal filed by three appellants namely; Chhota @ Koka, Lala @ Lalchand and Rajesh is directed against the judgement dated 05.07.2007 passed by Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur in Sessions Case No.79/2006 by which each of them have been convicted for offence under section 302, 341 and 323 IPC. While they have been sentenced to life imprisonment for conviction under Section 302 of IPC with fine of Rs. 2,000, in default whereof to further undergo simple imprisonment of six months, they have been awarded simple imprisonment of one month for conviction under section 341 and simple imprisonment of one year for conviction under section 323 of IPC. All the sentences were ordered to run concurrently. 2. Brief facts of the case are that on 2.7.2006, complainant-Radhey Shyam @ Bunti (PW1) lodged a written report (Ex.P1) at Police Station Jyoti Nagar, Jaipur alleging therein that in the night of 1.7.2006 at around 7.30 p.m., he along with his brothers Ravi and Shekhar @ Suraj went to Valmiki Harijan Basti to collect money from the contractor, but the contractor was not found there. When there were returning back, on the way near the temple of Hanumanji, Koka @ Chhota, Lala, Rajesh etc. intercepted them and started abusing them. Koka was having an iron rod, Lala was having a lathi, Sandeep was having a stick and Rajesh was having a lathi in his hand. They started beating them. When he tried to intervene, they also tried to beat him. Shekhar @ Suraj fell down and thereafter, they ran away. Shekhar @ Suraj was brought to the house in unconscious condition and thereafter, he was taken to the emergency ward of SMS Hospital and in the night at around 11 p.m. Shekhar @ Suraj had died. Doctor informed him that the deceased had died on account of head injury and he should take necessary steps in this regard, therefore, he is lodging this report. On the basis of aforesaid report of the complainant, police registered a case FIR No. 133/2006 for the offences under section 147, 148, 149, 341, 323, 302 IPC and started the investigation. After conclusion of investigation, police submitted charge sheet against the accused-appellants for the offences under section 302, 323, 341 and 34 IPC. On committal, learned trial court framed charge against the accused-appellants for the offences U/s. 341, 323, 302 IPC. After conclusion of investigation, police submitted charge sheet against the accused-appellants for the offences under section 302, 323, 341 and 34 IPC. On committal, learned trial court framed charge against the accused-appellants for the offences U/s. 341, 323, 302 IPC. The prosecution examined as many as 20 witnesses and also exhibited 35 documents and 7 articles. Defence however exhibited only 2 documents. The trial court after conclusion of the trial, convicted and sentenced the accused-appellants in the manner as indicated above. Hence this appeal. 3. Shri Anshuman Saxena, learned counsel for the accused-appellants submits that there are several infirmities and contradictions in the statements of witnesses and therefore no reliance can be placed on their testimony. It is submitted that though the independent witnesses were available, but they were not produced and examined. The prosecution failed to establish its case beyond reasonable doubt. The sentence awarded by the learned trial court is excessive and keeping in view facts of the case and the manner in which the incident is alleged to have taken place, there was no justification to award excessive sentence and therefore conviction of accused-appellants cannot be sustained. 4. Learned counsel for the accused-appellants argued that statement of accused-appellants are not recorded in accordance with the provisions of law as all incriminating circumstances were not put to them and sufficient opportunity of defence was not afforded to them. 5. It is argued that accused-appellant Chhota @ Koka was arrested under Section 151 Cr.P.C. and later on he was implicated falsely in the instant case. In the statement of the injured witnesses namely Radhey Shyam & Bunty (PW1) and Ravi Kumar (PW2), no role was assigned to the accused Lala and Rajesh, therefore, from their testimony, the involvement of accused-appellants Lala and Rajesh is not established. It is submitted that Radhey Shyam & Bunty (PW1) and Ravi Kumar (PW2) have stated that appellant Chhota @ Koka inflicted head injury on the deceased by iron rod and Sandeep inflicted head injury by a stick. However, according to postmortem report (Ex.P25) only one injury on head was found, which was proved fatal. Since one injury is assigned to two persons, therefore, both of them are entitled to get the benefit of doubt. 6. However, according to postmortem report (Ex.P25) only one injury on head was found, which was proved fatal. Since one injury is assigned to two persons, therefore, both of them are entitled to get the benefit of doubt. 6. Learned counsel for the accused-appellants submits that it is evident from the written report (Ex.P1) that incident took place all of a sudden on a trifle issue without any pre-meditation of pre-concert, therefore, the offence under section 302 of IPC cannot be made out against the accused-appellants. 7. Learned counsel for the accused-appellants submits that Radhey Shyam & Bunty (PW1) and Ravi Kumar (PW2) both are highly interested witnesses. Their statements are not corroborated with any other evidence. Their testimony suffers from contradictions. The conviction based on their testimony is not sustainable in the eye of law. 8. Shri V.S. Godara, learned Public Prosecutor opposed the appeal and supported the impugned judgement and submits that the learned trial court rightly convicted the accused-appellants in the manner as indiated above and there is no infirmity in the judgement passed by the learned trial court. 9. We have given our anxious consideration to the rival submissions and perused the material on record. 10. Prosecution in the present case has produced as many as 10 such witnesses namely; Radhey Shyam @ Bunty (PW1), Ravi Kumar (PW2), Lalit (PW3), Beeru (PW4), Sugriv (PW5), Deepak (PW6), Bishan Lal (PW7), Allahdin (PW9), Hari Shankar Prasad (PW10) & Santosh (PW11), whom they claimed to be eye witnesses. Unfortunately, however except Radhey Shyam @ Bunty (PW1), Ravi Kumar (PW2) and Beeru (PW4), all other witnesses have turned hostile. Radhey Shyam @ Bunty (PW1), Ravi Kumar (PW2) and Beeru (PW4) have supported the prosecution case. What we have to therefore examine is whether the first version given by the informant Radhey Shyam @ Bunty (PW1) in the written report (Ex.P1) finds corroboration with the testimony of these three eye witnesses and other witnesses produced by the prosecution. As per written report (Ex.P1) given by Radhey Shyam @ Bunty (PW1), dispute took place on a very trifle issue when he along with his brother Ravi and Shekhar @ Suraj (deceased) were going to the contractor Kishan Kumar Beniwal for collecting their wages. While coming back, they were stopped and abused on the way by Koka @ Chhota, Lala, Gopal, Sandeep, Rajesh, Kanoj etc. While coming back, they were stopped and abused on the way by Koka @ Chhota, Lala, Gopal, Sandeep, Rajesh, Kanoj etc. The accused party was armed with iron rods, dandas and sticks. Koka was having an iron rod, Lala had a wooden danda, Gopal had a sodha, Sandeep had a stick, Rajesh had a wooden danda and Kanoj had a leather belt. They started beating Shekhar @ Suraj. While recovery of iron rod was made at the instance of Chotta @ Koka (Ex.P5), the recovery of lakri was made at the instance of Rajesh (Ex.P6) and danda at the instance of Lala @ Lalchand (Ex.P18). It was alleged in the written report that Sandeep inflicted a stick blow and Koka inflicted blow by iron rod on the head of Shekhar @ Suraj. Ravi was attacked by Lala, Kanoj, Gopal and Rajesh. When he tried to intervene, he was also subjected to beating. Shekhar @ Suraj fell on the ground and was brought to his home in unconscious condition and thereafter taken to hospital. Police has found it to be a case of over/false implication in respect of Sandeep against whom there is specific allegation of causing blow by stick. Police filed challan against three appellants herein and also initiated proceedings against one Subhash, who was a juvenile before the Juvenile Justice Board and did not appear to have been named even in the written report. Informant Radhey Shyam @ Bunty when appeared as PW1, he in his court statement has alleged that Koka inflicted blow by iron rod on the head of Shekhar @ Suraj from front side. He again repeated the allegation on Sandeep of inflicting blow by stick on the head of Shekhar @ Suraj. Other omnibus allegations were levelled against others of beating. This witness stated that when he intervened, he was also subjected to beating by Kanoj with the use of belt and Lala inflicted a lathi blow on his head. This witness has given the genesis of the incident that the dispute took place when they were going to the place of Kishan Kumar Beniwal for collecting wages. At that time, younger brother of Rajesh was skating and in that process got hit on the legs of deceased Shekhar, which led to quarrel between two and when they were returning after about 10-15 minutes by the same route, accused party gave them beatings. At that time, younger brother of Rajesh was skating and in that process got hit on the legs of deceased Shekhar, which led to quarrel between two and when they were returning after about 10-15 minutes by the same route, accused party gave them beatings. Ravi Kumar (PW2) has also given the same cause for the genesis of the incident. As to the specific role of the accused, he has stated that Koka inflicted a blow by iron rod on the head of deceased and Sandeep also inflicted stick blow on his head. When he fell down, others also started beating Shekhar as also Radhey Shyam @ Bunty and this witness himself. In cross examination again, he has repeated the same allegation of causing blow by iron rod on the head of deceased by Koka and stick blow by Sandeep. 11. Beeru (PW4) has although supported the prosecution case but has not attributed any specific role to any of the accused. While pointing at three appellants in the Court, he has stated that they were beating deceased Shekhar and they caused injuries on his head, as a result of which, he fell down, then Bunty etc. took Shekhar to their house and thereafter to the Police Station wherefrom he was taken to hospital. He died in the hospital at night. No injury report of deceased was prepared. His postmortem report (Ex.P25) is on record, according to which he sustained the following head injuries: "Lacerated wound 5cm x 11/2cm x scalp tissue deep on Rt. Fronto Parietal region with irregular margins and red clotted blood with diffused swelling on reduction at scalp layer there is sub-scalp haematoma in Rt.Fronto parietal region skull bones, NAD Dura time and further examination there is thick subdural haematoma on Rt.fronto parieto temporal region with brain compressed. Brain multiple lacerations present on the Rt.Parieto Temporal Regional of size varying from 11/2 cm x 1cm x 1cm to 11/2 x 1/2 x 1/2 cm with ante-mortem haemotoma and surrounded by hemorrhagic contusion." 12. Apart from the aforesaid head injuries, deceased also sustained eight other injuries which are as follows:- "Antemortem injuries present on the dead body at the time of post mortem examination are as follow:- 1. Abraded bruise of size 11/2 cm x ⅛ with red clotted blood present on the left wrist joint dorsomedial aspect 2. Apart from the aforesaid head injuries, deceased also sustained eight other injuries which are as follows:- "Antemortem injuries present on the dead body at the time of post mortem examination are as follow:- 1. Abraded bruise of size 11/2 cm x ⅛ with red clotted blood present on the left wrist joint dorsomedial aspect 2. Abrasion 2cm x 11/2 on the left elbow laterly with red clotted blood 3. Abrasion 11/2cm x 1cm on right knee lower part anterly with red clotted blood 4. Bruise 2cm x 11/2cm on right side back of lumber region near mid line 5. Bruise 11/2cm x 1/2cm on right side back of abdomen (back of lumber region) 1cm lately to injury no.4 near mid line 6. Abrasion 11/2cm x 1cm on left IVth toe dorsal with red clotted blood 7. Abrasion 1cm x 1cm on Rt IIIrd toe dorsally with red clotted blood 8. Bruise abraded 3cm x 2cm on Rt. Elbow joint laterly with fresh clotted blood All above injuries are ante mortem in nature in duration prior to death." 13. Postmortem report (Ex.P25) has been proved by Dr. Kedar Prasad (PW17). The cause of death in the postmortem report was opined to be comma brought about as a result of antemortem head injury, which injury was sufficient to cause death in the ordinary course of nature. However, visra was preserved and handed over to the police to rule out the possibility of death due to common poison including alcohol. FSL report (Ex.P26) shows that the visra and other samples gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides. 14. Dr. Kedar Prasad (PW17) has proved the postmortem report and also the fact that cause of death was fatal incised injury of head. The head injury has been attributed by the informant Radhey Shyam @ Bunty (PW1) in the written report/FIR as also in his statement as well as by Ravi Kumar (PW2) to two accused namely; accused-appellant Chhota @ Koka and Sandeep. The police found the case of over implication against Sandeep and did not file challan against him. There being only one head injury, which is attributed to Chhota @ Koka, it must therefore be held that this head injury has been caused by Chhota @ Koka. The police found the case of over implication against Sandeep and did not file challan against him. There being only one head injury, which is attributed to Chhota @ Koka, it must therefore be held that this head injury has been caused by Chhota @ Koka. At the same time, we find that witnesses are unanimous as to the cause and genesis of the incident that it happened on a trifle issue i.e. when younger brother of Rajesh, who was skating on the public road, incidentally hit the deceased Shekhar @ Suraj and the accused subjected the deceased to beatings. In the dispute that arose between the two groups, not only the deceased sustained injuries but Radhey Shyam @ Bunty (PW1) sustained two bruises, which are simple in nature and Ravi Kumar (PW2) sustained one lacerated wound, which is also simple in nature and on the side of the accused, Chhota @ Koka also appeared to have sustained injuries which is evident from his arrest memo (Ex.P16). The arrest memo carries an endorsement that Chhota @ Koka has got swelling on left side of the neck, injury cum swelling on left ear and also had complaint of pain on the elbow of the left hand. Significantly, Chhota @ Koka was arrested on 2.7.2006, yet he was not got medically examined, whereas the two injured Radhey Shyam @ Bunty (PW1) and Ravi Kumar (PW2) were examined on 2.7.2006. 15. Evidently, record reveals that both the groups participated in the quarrel. Radhey Shyam @ Bunty (PW1) has sustained two minor injuries, Ravi Kumar (PW2) sustained only one simple minor injury and deceased also sustained eight injuries, which were simple and superficial in nature. The intention of the accused-party was not to commit the murder of any member of complainant party, but only to give them a threat, Chotta @ Koka hit the deceased, which is evident from the fact that all the eight injuries sustained by deceased Shekhar @ Sujar were of very minor nature and on non-vital parts of the body namely; abrasions on the left wrist joint, left elbow, right knee, left IV toe dorsag, right III toe dorsag and bruises on right side back of lumber region, right side back of abdomen and right elbow joint. It therefore appears that a blow by use of iron rod was delivered on the head of the deceased. It therefore appears that a blow by use of iron rod was delivered on the head of the deceased. Chhota @ Koka has acted in retaliation of the injuries that he himself sustained where for other two accused cannot be held responsible. The accused cannot be held member of unlawful assembly or otherwise cannot be held to have any prior concert or prior meeting of mind to murder the deceased. Evidence to this effect is on record. Although the accused Chhota @ Koka in causing the blow by iron rod on the head of deceased may not have the intention of causing offence of culpable homicide amounting to murder, but he certainly had the intention of causing death or causing such injury as he knew was likely to cause death, therefore, his individual offence would fall within the purview of Section 304 Part-I. However, as far as offence of accused-appellant Chhota @ Kota and other accused Lala @ Lalchand and Rajesh for offence under section 341 and 323 IPC is concerned, we find ample justification for their conviction on the charges on the basis of role assigned by various witnesses. 16. In view of above discussion, the appeal is allowed in part. The conviction of accused-appellants for offence under section 302 IPC is set aside. However, the accused-appellant Chhota @ Koka is instead convicted for offence under section 304 Part-I IPC. Considering that he is in jail for last 9 years and 4 months, which inclusive period of remission, would be much more than 10 years, he is sentenced to the period already gone by him. However, his conviction for offence under section 323 and 341 IPC is maintained. The conviction of accused-appellants Lala @ Lalchand and Rajesh for offence under section 323 and 341 IPC is, however, maintained. They are sentenced to the period already undergone by them. The accused-appellants are already on bail, their bail bonds are discharged. All the sentences are ordered to run concurrently as already directed. 17. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, the appellants are directed to forthwith furnish a personal bond in the sum of Rs. The accused-appellants are already on bail, their bail bonds are discharged. All the sentences are ordered to run concurrently as already directed. 17. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, the appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000 each and a surety bond in the like amount before the Deputy Registrar (Judl.) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave to Petition being filed against this judgement or on grant of leave, these appellants, on receipt of notice thereof, shall appear before the Supreme Court.Appeal partly allowed. *******