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2015 DIGILAW 2728 (ALL)

BHIKHAN v. STATE OF U. P.

2015-09-03

ARVIND KUMAR TRIPATHI, RANJANA PANDYA

body2015
JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgement passed by IInd Additional Sessions Judge, Lakhimpur Kheri on 11.10.1983 in Sessions Trial No. 426 of 1982, under Sections 148, 147, 302 read with Section 149 I.P.C., Police Station Dhaurahara, District-Kheri, whereby the trial Court found the accuse Kashi guilty of the offence under Section 148 and sentenced him to undergo rigorous imprisonment for one year. He was also found guilty for the offence under Section 302 read with Section 149 I.P.C. and sentenced for life imprisonment. Accused Bhikhan, Parsadi and Sheo Charan, were found guilty under Section 147 I.P.C. and each of them was sentenced for one years rigorous imprisonment and each of the aforesaid accused were also found guilty under Section 302 read with 149 I.P.C. and were sentenced for life imprisonment. All the sentences were to run concurrently. 2. The prosecution story as unfolded according to the F.I.R. and prosecution case is that an oral report was lodged by P.W. 1 Smt. Ram Dei stating that on 14.9.1975 in the noon time Shiv Dutt was grazing his cattle in Retia near the fields of Jia Ram and Bhagauti within village Bhanwapur, P.S. Dhaurhara, District- Kheri. Sanwal Singh, Ghurey, Itwari and Kunwar were also grazing their cattle at the same place. Some cattle had trespassed into the fields of Jia Ram. The accused persons Kashi, Prasadi, Shiv Charan, Jia Ram and Bhikhan came and proceeded to take the cattle to the cattle pound. Shiv Dutt requested them not to do so at which all the accused persons assaulted him. Kashi was armed with spear and the rest of the accused were armed with lathis. All the accused including Kashi caused lathi injuries. Shiv Dutt succumbed to those injuries. The oral report was lodged by P.W. 1 Smt. Ram Dei. The F.I.R. was lodged on the same day at 17:15 hrs, the distance between the police station and the place of occurrence was 10 km. An investigation was conducted by P.W. 6 S.I. Shiromani Singh. He proceeded to the spot and proved G.D. report as Exhibit Ka-3. He recorded the statement of the informant at the police station and proceeded to the place of occurrence and prepared the inquest report, diagram of dead body, chalan lash, letter to C.M.O. and sample of seal and proved it as Exhibit Ka-4 to Ka-8. He proceeded to the spot and proved G.D. report as Exhibit Ka-3. He recorded the statement of the informant at the police station and proceeded to the place of occurrence and prepared the inquest report, diagram of dead body, chalan lash, letter to C.M.O. and sample of seal and proved it as Exhibit Ka-4 to Ka-8. The Investigation Officer further took the blood stained clothes of the deceased in custody and collected blood stained and plain earth from the place of occurrence and prepared the seizure memo proving it as Exhibit Ka-10. He further investigated and prepared site plan and proved it as Exhibit Ka-11. On the same day, he interrogated the witness Ghurey and also examined the witnesses of inquest and after investigation he submitted charge-sheet as Exhibit-Ka 12 against the accused persons. The post-mortem of the dead body of the accused was conducted by P.W. 5 Dr. P.N. Mehrotra on 16.9.1975. The Doctor found the following ante-mortem injuries on the body of the deceased : Lacerated wound 4cmx.7cmx(scalp deep) 6 cms. above the medial part of Right eyebrow oblique and Vertieal in direction on the forehead. Lacerated wound 1.5cmx.5cm x bone deep (surrounding area depressed) on the right side of the head 10 cms from the right ear pinna, about 3 cm from the injury No. 1 on the right side. On dissection of inj. No. 1 and 2 clotted blood present under the scalp Depressed fracture of both frontal bones in multiple piece present. Fracture (Fissused) of both temporal bones and both parietal bones present. Brain matter coming out on opening the skull meninges congested and ruptured under the injury and Brain matter liquefying. Contusion 10cms x 10cm on the elbow extending from lower part of Right arm to upper of right forearm. Clotted blood present underneath. Contusion 24cmsx8cms on the left firearm on the outer side. On Dissection clotted blood present under neath the injury. Contusion 20cmsx10cms on the left buttock. On dissection clotted blood present. Abrasion 1.5cmx1cms. on the penis on right side. 3. The deceased was average built male R.M. passed off from both extremities blisters were present at places. Greenish discoloration present in both the iliac foss as and the tongue was protruted. 4. This witness proved the post-mortem report as Exhibit-Ka 2. 5. P.W. 1 Smt. Ram Dei, who was the informant, proved the report as Exhibit-Ka 1. 3. The deceased was average built male R.M. passed off from both extremities blisters were present at places. Greenish discoloration present in both the iliac foss as and the tongue was protruted. 4. This witness proved the post-mortem report as Exhibit-Ka 2. 5. P.W. 1 Smt. Ram Dei, who was the informant, proved the report as Exhibit-Ka 1. She is not said to be an eye-witness. P.W. 2 Ghurey is an eye-witness of the occurrence. P.W. 3 Kunwar is also an eye-witness of the occurrence. P.W. 4 Bharat Prasad was the Chawkidar of that village. These witnesses took the body of the deceased in sealed condition alongwith Constable Mohd. Haneef. P.W. 6 is S.I. Shiromani Singh Chauhan, who has proved the said F.I.R. After investigation the Investigating Officer has submitted the charge-sheet against all the accused under Sections 147, 148 and 302 read with Section 149 I.P.C. 6. The case was committed by the Chief Judicial Magistrate, Lakhimpur Kheri. The Sessions Judge framed charges under Sections 148 and 302 read with Section 149 I.P.C. against accused Kashi and charges under Sections 147 and 302 read with Section 149 I.P.C. against accused Bhikhan, Parsadi and Shiv Charan Godia. All the accused pleaded not guilty to the charges and claimed to be tried. 7. In support of the prosecution case P.W. 1 Smt. Ram Dei, P.W. 2 Ghurey, P.W. 3 Kunwar, P.W. 4 Bharat Prasad, P.W. 5 Dr. P.N. Mehrotra and P.W. 6 S.I. Shiromani Singh Chauhan were examined. 8. After lose of the prosecution evidence all the accused persons were examined under Section 313 Cr.P.C. All the accused persons denied the prosecution case and occurrence and said that they have been falsely implicated due to enmity with Shatrughan Singh. 9. The accused did not produce any defence evidence. 10. After hearing counsel for the parties, the learned trial Court convicted the accused person. 11. Feeling aggrieved, the accused persons have come up in the present appeal before this Court. 12. We have heard learned counsel for the parties and carefully gone through the record. 13. Following points were raised by the counsel for the defence : That the F.I.R. is ante time. The ingredients of Section 149 I.P.C. Are wanting in the prosecution case. There is no motive for the accused applicants to commit the crime. There are contradictions in the statement of the witnesses. 13. Following points were raised by the counsel for the defence : That the F.I.R. is ante time. The ingredients of Section 149 I.P.C. Are wanting in the prosecution case. There is no motive for the accused applicants to commit the crime. There are contradictions in the statement of the witnesses. The accused exercised the right of private defence (i) Whether the First Information Report is ante time It was argued on behalf of the defence that the F.I.R. is anti timed. It has been submitted that the F.I.R. was not lodged on the day and time when the prosecution has stated. The F.I.R. is the backbone of a criminal case and it is well-settled principle of law that the F.I.R. is not an encyclopedia. If the F.I.R. bears the details of witnesses, names of the accused, place of occurrence, details of weapon used, then it would suffice as has been held in Allahabad Jai Lal (dead) and others v. State of U.P., 2001 (1) JIC 143. In support of the arguments that the F.I.R. is ante timed reliance has been placed upon Dharmendra v. State of U.P., 2010 (7) ACC 817, in which it has been held that if the evidence on record shows that the F.I.R. is a sham document registered as anti timed with a coloured version of the incident, the F.I.R. would not be credible and no reliance be placed on it. Perusal of the record shows that the incident is said to have taken place on 14.9.1975 in the noon, whereas report was lodged on the same day at 17:15 hrs. The distance of the police station from the place of occurrence being 10 kms. As far as time is concerned P.W. 1 Smt. Ram Dei is not an eye-witness. Witness P.W. 6 being I.O. of the case was not cross-examined on this point. Inasmuch as not even a vague suggestion was given to the Investigating Officer that the F.I.R. was anti timed. Perusal of the oral report shows that the F.I.R. was oral and it was dictated in the regional language of the informant. Copy of the G.D. pertaining to 14.9.1975 is on record, which goes to show that the F.I.R. was lodged at the time as shown in the check report Exhibit Ka-1. Perusal of the oral report shows that the F.I.R. was oral and it was dictated in the regional language of the informant. Copy of the G.D. pertaining to 14.9.1975 is on record, which goes to show that the F.I.R. was lodged at the time as shown in the check report Exhibit Ka-1. P.W. 1 Smt. Ram Dei appeared before the trial Court in which she has stated that at about 2 p.m. in the afternoon Ghurey came to her and told her that the accused Kashi had beaten Shiv Dutt who succumbed to his injuries. Ghurey is P.W. 2 who has stated that the accused Kashi attacked Shiv Dutt, who died. After that he went to the house of P.W. 1 Smt. Ram Dei and informed her about the incident. Thus the report lodged by the informant P.W. 1 Smt. Ram Dei is not at all ante timed, because P.W. 1 Smt. Ram Dei has stated that she went to the police station alongwith her brother leaving Jodha Singh and Mahaveer near the dead body of her husband. She has also stated that she was interrogated on the same day by the Investigating Officer. This goes to show that the report was lodged as per time mentioned by the prosecution. Thus, the report was not ante timed. But even if there is slight irregularity regarding time of lodging of the F.I.R. that alone would not support the conclusion that the F.I.R. was ante timed as has been held in Criminal Appeal No. 1160 of 2005 Rajesh Singh and others v. State of U.P., decided on 28.3.2011. Thus, we are of the view that the F.I.R. was not ante timed. (ii) Whether the ingredients of Section 149 are made out. It has been submitted on behalf of the appellants that since the cattle of the deceased had trespassed the land of the accused, hence, he had legal right to take cattle to the ‘cattle pound’. Since the cattle were damaging the crop of the accused, thus, the seizure of the cattle by the accused was lawful and, by no stretch of imagination, it could be said that it was an unlawful assemby as suggested by the prosecution. Since the cattle were damaging the crop of the accused, thus, the seizure of the cattle by the accused was lawful and, by no stretch of imagination, it could be said that it was an unlawful assemby as suggested by the prosecution. The ingredients of Section 149 IPC require presence of an unlawful assembly which is defined under Section 141 of the IPC as an assembly of five or more persons, if the common object of the persons composing that assembly is any of the five objects fully enunciated in Section 141 of IPC. The third object is - “to commit any mischief or criminal trespass or other offence.” The explanation to Section 141 clarifies that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. As per Section 149, even if any one member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, every person who at the time of committing of that offence was a member of the unlawful assembly is guilty of that offence. No doubt common object may form on spur of the moment. Prior concert by way of meeting of members of unlawful assembly is not necessary. It has been proved beyond reasonable doubt that the accused Kashi was armed with bhala and remaining were armed with lathis. The deceased was done to death by Kashi and other accused by using bhala and lathis. This finds support from the post-mortem report showing six ante-mortem injuries which, according to the doctor P.W.5 P.N. Mehrotra, would have been caused by any blunt object including a lathi and he has also opined that the injuries sustained by the deceased were sufficient in the natural course to cause death of the injured. Thus, we conclude that the ingredients of Section 149 I.P.C. are fulfilled and the accused formed an unlawful assembly. (iii) Whether there is no motive for the accused to commit the offence As far as motive is concerned, motive is something generally in mind of the accused and it is difficult for the prosecution to find out the motive to commit the offence. Motive no doubt is a double edged weapon, which on one hand prepares the accused to commit the crime and on the other hand, it works as a catalyst in falsely roping the accused in the case. Motive no doubt is a double edged weapon, which on one hand prepares the accused to commit the crime and on the other hand, it works as a catalyst in falsely roping the accused in the case. It is only the accused, who knows as to what circumstances prompted him to ascertain the cause of action leading to the commission of crime. Different persons react differently under giving circumstances. Murder can be committed even on very trivial issues. It is also difficult to say and lay down any hard and fast rules as to how and in what manner a person would react and to achieve his motive to go to what extent in the commission of the crime under a particular circumstances. It is not possible to measure the extent of his feelings, sentiments and reactions. There may be persons who under frustration or on mere possibility may take decision to commit crime. It all depends as to how a person reacts in a giving circumstances and he is alone the person who best knows his intention and motive to commit crime and the extent thereto. Before analysing the motive assigned in the case, we can have a birds eye views on the law of motive. In Nanhoon and others v. State of U.P., 2012 (77) ACC 125, the Hon’ble Apex Court has held that if the motive for crime is not established or the motive is very week it may be of no importance. In Mangaru and others v. State of U.P., 2008 (62) ACC 40, it has been laid down that that motive may be of importance in the cases of circumstantial evidence and it is well-settled principle of law that in the case of direct evidence, motive looses its value. In the case in hand, on perusal of the oral report reveals that no motive has been assigned in the F.I.R. According to the F.I.R. which is in the regional language of informant. The deceased was grazing cattle in the field, some cattle has trespassed into the field of Jia Ram and some altercation took place between the accused persons and the deceased and the deceased was done to death by the accused person. The deceased was grazing cattle in the field, some cattle has trespassed into the field of Jia Ram and some altercation took place between the accused persons and the deceased and the deceased was done to death by the accused person. In Atley v. State of U.P., AIR 1955 SC 807 , 1955 Cri LJ 1655, the Hon’ble Apex Court has stated that “Where there is clear proof of motive for the crime, that lends additional support to the finding of the Court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion”. In State of Uttar Pradesh v. Kishan Pal and others, 2008(16) SCC 73, while dealing with the presence of motive, the Apex Court held as follows : “The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. it is also settled law that the motive loses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. Thus, acceptation of the direct evidence on record on proper scrutiny and analysis of proof of existence of motive or strength of motive does not affect the prosecution case. Thus, acceptation of the direct evidence on record on proper scrutiny and analysis of proof of existence of motive or strength of motive does not affect the prosecution case. That apart, it is always to be borne in mind that different motives may come into operation in the minds of different persons, for human nature has the potentiality to hide many things and that is the realistic diversity of human nature and it would be well nigh impossible for the prosecution to prove the motive behind every criminal act.” Thus, it is clear that although there is no specific motive assigned in the F.I.R. but in the statement of witnesses, they have stated that the animals of the deceased trespassed in the field of the Jia Ram, the accused persons tried to take the animals to the cattle pound, when the deceased resisted the incident took place at the spur of the moment. (iv) There are contradictions in the statement of witnesses. Learned counsel for the appellant have also stated that there contradictions in the statement of the witnesses, who are interested witnesses. Admittedly, P.W. 1 Smt. Ram Dei is not an eye-witness, her evidence is hearsay. Hence, her statement cannot be relied upon. Law is well-settled that in all cases, where related witnesses have given the evidence, their evidence cannot be brushed aside only on the ground of relationship. It was argued that the witnesses who are said to have eye-witness of the incident Ghurey P.W. 2 and Kunwar P.W. 3. Both these witnesses are chance witnesses, hence their evidence cannot be relied upon. P.W. 2 Ghurey informed the informant P.W. 1 Smt. Ram Dei about the incident. As far as his presence on the spot is concerned, he has stated that he had also gone near the place of occurrence to graze his cattle. Besides him Kunwar, Sanwal Singh and Itwari had also gone to graze their cattle. In cross-examination he has fairly admitted that the deceased did not belong to his village. The deceased was resident of Village Bachhaura, whereas this witness was resident of Village Gangolia. As far as the other eye-witness P.W. 3 Kunwar is concerned he is the resident of the village of deceased, who cannot be termed to be a chance witness. In cross-examination he has fairly admitted that the deceased did not belong to his village. The deceased was resident of Village Bachhaura, whereas this witness was resident of Village Gangolia. As far as the other eye-witness P.W. 3 Kunwar is concerned he is the resident of the village of deceased, who cannot be termed to be a chance witness. P.W. 2 Ghurey has stated that since he had also taken his cattle to graze at the place of incident, hence he saw the incident. It has been submitted that there are major contradictions between the statement of P.W. 2 Ghurey and P.W. 3 Kunwar due to which the whole prosecution story collapses like a heap of cards. The fishing cross-examination has been done as far as P.W. 2 Ghurey and P.W. 3 Kunwar are concerned but there is nothing on record to prove that they were not present on the spot. The evidence of the witnesses has been criticised by the learned counsel for the defence who submitted that the conduct of the witnesses is unnatural, hence they cannot be relied upon. Attention of this Court has been drawn towards the statement of P.W. 2 Ghurey. P.W.2 Ghurey said that after the incident he went to inform Ram Dei and after that he went back to his house. This witness whose age was recorded as 20 years on 26.4.1982, when the statement was recorded before the trial Court and in cross-examination he has specifically stated that at the time of occurrence he was very young, hence he said nothing to the accused. Thus, the occurrence being of 14.9.1975 the age of P.W. 2 Ghurey comes to about 13 years. What is expected out of a boy of 13 years who is helpless to see a murder being committed before his eyes? In the case of State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , where it has been laid down that “while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. In the case of State of U.P. v. M.K. Anthony, (1985) 1 SCC 505 , where it has been laid down that “while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or thee from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.” Reverting back to the evidence of P.W. 2 Ghurey, who has stated that on the fateful day when some of the cattle had encroached upon the field of Jia Ram at that point of time accused Kashi, Bhikhan, Parsadi, Sheo Charan and Jia Ram came and started abusing the deceased and other people, whose cattle were grazing there. The accused persons tried to take the cattle to cattle pound, at which the deceased requested the accused not to take the cattle to the cattle pound, because penalty would be huge. The accused did not pay head to his request and altercation took place between the deceased and all the accused persons. At this Sheo Charan pushed the deceased and all other accused started beating the deceased with lathi and spear. Kashi was having a spear and remaining were armed with lathi. The spear was being used as lathi. It has been submitted on behalf of the appellants that in the F.I.R. it has not been mentioned that the spear was being used as a lathi. If the prosecution evidence is consistent and cogent this would not make much difference. P.W. 1 Smt. Ramdei has stated that the name of the accused was told to her by Ghurey. It has been submitted on behalf of the appellants that in the F.I.R. it has not been mentioned that the spear was being used as a lathi. If the prosecution evidence is consistent and cogent this would not make much difference. P.W. 1 Smt. Ramdei has stated that the name of the accused was told to her by Ghurey. P.W. 3 Kunwar has stated that he saw all the accused beating the deceased with spear being used as lathi besides lathis. The age of this witness on the date of recording the statement on 26.4.1983 was 19 years. Meaning thereby that this witness was also a child of about 12 years, when he saw the incident. He has stated that each one of the accused inflicted 2-3 blows of lathi. The reaction of every person witnessing a crime is different. In Leela Ram (D) through Duli Chand v. State of Haryana and another, 2000 SCCr R 147, it has been held as follows : “Unless discrepancies in ocular account is vital; it will not affect credibility of the witnesses and same should not be used to jettison the entire evidence. Corroboration of evidence with mathematical niceties cannot be expected. Witnesses react differently under different situations, some become speechless, and some start waiting, some run away and some come with courage to remedy the wrong to depose the facts. There cannot be a set pattern to give evidence. Some exaggeration or embellishments cannot be avoided and evidence is to be considered from view of trustworthiness." We cannot loose sight of the fact also that human memory fades with time. The incident is said to have been committed on 14.9.1975, whereas the statement of P.W. 2 Ghurey and P.W. 3 Kunwar was recorded in 1982 and 1983 i.e. about 7 and 8 years after the incident. In such circumstances in Ramesh v. State, (1979) Crl LJ 727, the Hon’ble Apex Court has held “if the statement of the witnesses has been recorded about one and half year after the occurrence and the witnesses are subjected to lengthy cross-examination, then minor discrepancies live a trail of imprint that witnesses are untutored and credible.” No enmity of the accused with witness Ghurey P.W. 3 and Kunwar P.W.3 has been established or suggested by the defence, hence, there was no reason why these young lads would unnessarily depose against the accused. Hence, we conclude that the evidence of the eye-witnesses is intact and trustworthy. (v) Whether the accused exercised the right of private defence It has been submitted by the learned counsel for the appellants that the accused were lawfully taking the cattle of the deceased to the ‘cattle pound’ because they trespassed their fields and caused damage to the crop standing therein. They were wrongly resisted by the deceased, hence, the accused exercised the right of private defence to property. As far as this argument is concerned, we have perused the statements of the accused recorded by the Court after conclusion of the prosecution evidence under the provisions of Section 313 Cr.P.C. None of the accused have even whispered that they exercised their right of private defence but mainly all the accused have stated that they have been falsely implicated at the instance of Shatrughan Singh. Even, according to the prosecution case, there is nothing on record to show that there was any danger to the accused that the accused would suffer grievous injury or death. Inasmuch as the deceased was alone whereas the accused persons were five in number. No doubt the legal position, as it stands, is that the right of private defence in given circumstances extends to the causing of grievous hurt or even death, but, in the present case, there is not even a whisper of exercise of right to private defence. Even on gathering the surroundings or circumstances of the case, there is no case of private defence because even if the arguments of the defence are taken on their face value, there were five accused who were taking the cattle to the ‘cattle pound’ and only the deceased was offering resistance. Hence, the case of defence that they exercised their right of private defence falls on the ground. 14. On critical examination of the evidence and arguments of the counsel for the appellants and learned A.G.A., tt is clear that there was no pre-planned motive for the accused to commit the crime and in fact no motive was assigned in the F.I.R. also. It appears that at the spur of the moment because of trespassing of the animals of the deceased, the deceased was done to death. If the intention of causing of death would have been there, there was no difficulty for Jia Lal to use bhala from the sharp edged side. It appears that at the spur of the moment because of trespassing of the animals of the deceased, the deceased was done to death. If the intention of causing of death would have been there, there was no difficulty for Jia Lal to use bhala from the sharp edged side. It has to be determined on the peculiar facts and circumstances of the case that the conviction of the appellants under Section 302 I.P.C. should be upheld or the conviction be converted to one under Section 304 part II I.P.C. because appropriate sentencing is a very vital function and obligation of the Court. 15. There are significant features of the case which are required to be taken into consideration in awarding the appropriate sentence to the accused. 1. Admittedly the incident took place at the spur of the moment. 2. It is admitted on record that the bhala was not used from the sharp edged side. 3. There was no previous enmity between the parties. 16. Therefore, it is abundantly clear that there was no pre-arranged plan. When all these facts and circumstances are taken into consideration, in their appropriate perception then it becomes difficult to maintain the conviction of the appellants under Section 302 I.P.C. 17. Section 304 I.P.C. reads as follows: “304. Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 18. In Gurmail Singh and others v. State of Punjab, (1982) 3 SCC 185 , the Apex Court held that when the accused had no enmity with the deceased and the occurrence took place at the spur of the moment, the accused should be convicted under Section 304 Part II. In Gurmail Singh and others v. State of Punjab, (1982) 3 SCC 185 , the Apex Court held that when the accused had no enmity with the deceased and the occurrence took place at the spur of the moment, the accused should be convicted under Section 304 Part II. Thus, we think that in the present case the quarrel was of a trivial nature and even in such a trivial quarrel, the appellants used lathis and bhala. In Hem Raj v. State (Delhi Administration), (1990) Supp. SCC 291, the Apex Court held as under : “14. The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted.....” 19. Thus taking into consideration the entire prosecution evidence and medical evidence, we are of the view that the conviction of the appellants cannot fall under Section 302 read with Section 149 I.P.C. but at most under Section 304 Part II I.P.C. Adequate sentencing is the present cry of the society and proper and appropriate sentencing to the accused is the bounded obligation and duty of the Court. Endeavour of the Court must be ensured that the accused receives appropriate sentence. In other words the sentence should be according to the gravity of the offence. In our considered view the accused appellants ought to have been convicted under Section 304 Part II I.P.C. read with Section 149 I.P.C. In stead of under Section 302 read with Section 149 I.P.C. And remaining sentence do not need any interference by this Court. 20. In other words the sentence should be according to the gravity of the offence. In our considered view the accused appellants ought to have been convicted under Section 304 Part II I.P.C. read with Section 149 I.P.C. In stead of under Section 302 read with Section 149 I.P.C. And remaining sentence do not need any interference by this Court. 20. We, accordingly, convert the conviction and sentence of the appellants Bhikhan and Kashi from Section 302 read with Section 149 I.P.C. to one under Section 304 part II read with Section 149 I.P.C. and sentence each of the appellants to suffer rigorous imprisonment for 7 years. The remaining sentences shall be undergone by the appellants as has been directed. All the sentences shall run concurrently. The appellants would be entitled to get the benefit of Section 428 of the Code of Criminal Procedure. 21. The appeal is partly allowed in the aforesaid terms. 22. The accused are on bail. Their bail bonds are cancelled and sureties are discharged. 23. Let certified copy of the Judgment be sent to the trial Court for ensuring compliance which should be reported to the Court within four weeks. Court should take them into custody to take all steps for execution of the sentence.