JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 6.1.2012/10.1.2012 rendered by the Additional Sessions Judge (1), Kangra at Dharamshala in Sessions Case No.6-P/2010, whereby the appellants-accused (hereinafter referred to as the ?accused? for convenience sake), who were charged with and tried for offence punishable under section 302 and 323 read with section 34 of the Indian Penal Code have been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine, they were further ordered to undergo simple imprisonment for a period of six months for offence under section 302 IPC. They were also convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- and in default of payment of fine, they were further ordered to undergo simple imprisonment for one month for offence punishable under section 323 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. Case of the prosecution, in a nutshell, is that PW-2 Madan Lal was working as a Driver at Baddi. He came to his home at Lahru on 21.10.2009. He was threshing the paddy in their courtyard. Accused were in their houses. House of accused Kashmir Singh, uncle of Madan Lal, was adjoining to the house of Prem Dass. There was a passage in between the houses of complainant and accused Kashmir Singh. Accused had stacked Bajri on the passage besides the house of complainant, due to which the walls of house of Madan Lal got damaged due to dampness. Madan Lal asked accused Kashmir Singh and aunt to remove the Bajri. However, all the accused persons started quarreling with Madan Lal. First of all, accused Gulzar started quarreling with complainant Madan Lal and at that time, father of complainant, Bhagwan Dass, uncle Prem Dass and brother Man Chand also reached on the spot. Thereafter, accused Gulshan carrying hockey stick assaulted the complainant. Accused Gulzar carrying danda also assaulted the complainant. The other accused started beating the complainant with fist and kick blows. Complainant received injuries on his left shoulder, back and other parts of the body. The incident was witnessed by Rajinder Kumar, Karam Chand and Deepo Devi. Accused also assaulted Bhagwan Dass and Prem Dass with hockey stick, danda and fist blows. The other accused started beating the complainant with fist and kick blows. Complainant received injuries on his left shoulder, back and other parts of the body. The incident was witnessed by Rajinder Kumar, Karam Chand and Deepo Devi. Accused also assaulted Bhagwan Dass and Prem Dass with hockey stick, danda and fist blows. Madan Lal, Man Chand and their father went to the Police Station, Bhawarna and Rapat Ex.PW-11/A was lodged against the accused. Thereafter, complainant party returned from the Police Station to their home and their medical examination was conducted at C.H.C. Bhawarna. They found their uncle Prem Dass has died. Thereafter, complainant party again went to the Police Station, Bhawarna and told the police about the death of Prem Dass. FIR Ex.PW-2/A was registered at Police Station, Bhawarna. Police visited the spot. Photographs were taken. Investigating Officer prepared inquest report. Dead body was taken for post-mortem to Sub Divisional Hospital, Palampur. PW-12 Dr. K.L. Kapoor conducted the post-mortem. Danda Ex.P-1 and hockey stick Ex.P-2 were taken into possession by the policevide memo Ex.PW-2/B. I.O. also lifted blood from the verandah and put it in a plastic container. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. Prosecution examined as many as 14 witnesses in all to prove its case against the accused. Statements of accused under Section 313 Cr.P.C. were recorded. Accused Kashmir Singh has admitted his relationship with the complainant party. He has denied that any Bajri was kept on the passage. Accused Gulshan has admitted his relationship with the complainant party. He has admitted that complainant Madan Lal had provoked the accused party to remove the Bajri. He has denied that he was armed with hockey stick and assaulted the complainant. Accused Gulzar has admitted relationship with complainant Madan Lal, however, denied that he was armed with danda. Accused Nirmala Devi has admitted her relationship with the complainant party. She has denied the case of the prosecution. Learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, the present appeal. 4. Mr. Manoj Pathak, learned counsel for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, learned Assistant Advocate General has supported the judgment passed by the trial Court. 6. Learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, the present appeal. 4. Mr. Manoj Pathak, learned counsel for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, learned Assistant Advocate General has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record meticulously. 7. PW-1 Dr. Anjali Gupta has medically examined Bhagwan Dass on 22.10.2009. She issued MLC Ex.PW-1/A. She has also examined Man Chand and issued MLC Ex.PW-1/B. She has also examined Madan Lal and issued MLC Ex.PW-1/C. 8. PW-2 Madan Lal has testified that he reached at Lahru on leave on 21.10.2009. He was thrashing the paddy in their courtyard. Accused were present in their house. Their house, his uncles Kashmir Singh and Prem Dass houses were adjacent to each other. There was a passage in between his and Kashmir Singh's house. Family of Kashmir Singh had kept Bajri on the passage besides their house. Due to this, wall of their house was damaged due to dampness. He asked his uncle and aunt to remove the Bajri. However, Kashmir Singh, Nirmala Devi, Gulshan and Gulzar started quarrelling with him. First of All, Gulzar started altercation with him. In the meantime, his father Bhagwan Dass, uncle Prem Dass and brother Man Chand also reached. All of the accused started beating them with hockey stick and danda. Gulshan was having hockey stick and Gulzar was having dada with him. They beat them with hockey stick and danda. Other accused gave them beating with fist and kick blows. He sustained injuries on left shoulder, back and other parts of the body. All of them sustained injuries. Rajinder Kumar, Karam Chand and Deepo Devi reached the spot. They rescued them. He alongwith his father and brother went to the Police Station. They lodged report at 2.30 A.M. His medical examination was also conducted. When they came back, they found that Prem Dass has died. FIR Ex.PW-2/A was registered at his instance. Police recovered hockey stick Ex.P-1 and danda Ex.P-2 and took the same into possession vide memo Ex.PW-2/B. In his cross-examination, he has deposed that the quarrel continued for half an hour. 9. PW-3 Dr. Navneet Chauhan has examined accused Kashmir Singh. When they came back, they found that Prem Dass has died. FIR Ex.PW-2/A was registered at his instance. Police recovered hockey stick Ex.P-1 and danda Ex.P-2 and took the same into possession vide memo Ex.PW-2/B. In his cross-examination, he has deposed that the quarrel continued for half an hour. 9. PW-3 Dr. Navneet Chauhan has examined accused Kashmir Singh. He noticed the following injuries on the person of Kashmir Singh: 1. Abrasion over the forehead with brownish clotted blood. 2. Abrasion over left forearm lateral aspect with brownish clotted blood. He issued MLC Ex.PW-3/A qua accused Kashmir Singh. He also examined Gulzar Singh and noticed the following injuries on his person: 1. Clotted brownish blood in right nostril. 2. Tenderness left foot with no evidence of fracture. He issued MLC Ex.PW-3/B qua accused Gulzar Singh. He also examined accused Gulshan and noticed the following injuries on his person: 1. Abrasion over right hand, dorsum with clotted brownish black blood. 2. Tenderness over left shoulder. No evidence of any fracture. He issued MLC Ex.PW-3/C qua accused Gulshan. Accused Nirmala Devi was also examined by PW-3 Dr. Navneet Chauhan and he noticed the following injuries on her person: 1. Tenderness left elbow posterior aspect. No evidence of any fracture. 2. Contusion over left side of forehead with bluish discolouration. He issued MLC Ex.PW-3/D qua accused Nirmala Devi. 10. PW-4 Man Chand has testified that on 21.10.2009, he, Bhagwan Dass and Madan were thrashing the paddy at about 10.00 P.M. Their houses were adjacent to each other, i.e. Bhagwan Dass, Prem Dass and Kashmir Singh. There was a passage in between the houses of Kashmir and Bhagwan. Bhagwan Dass is his father. During those days, Bajri was kept by his uncle Kashmir Singh besides the wall of their house. The wall of the house was damaged. His brother Madan Lal asked Nirmala Devi to remove the Bajri. Then Gulzar came out and started exchanging hot words with his brother. He alongwith his father and uncle Prem Dass also reached there. Gulzar was carrying danda. Gulshan was carrying hockey stick. All of them started beating them. Accused Kashmir and Nirmala gave fist and leg blows while Gulzar and Gulshan gave them beatings with danda and hockey stick. On hearing noise, Karam Chand, Deepo Devi and Rajinder, their neighbours also came there. They rescued them from the clutches of the accused. Gulzar was carrying danda. Gulshan was carrying hockey stick. All of them started beating them. Accused Kashmir and Nirmala gave fist and leg blows while Gulzar and Gulshan gave them beatings with danda and hockey stick. On hearing noise, Karam Chand, Deepo Devi and Rajinder, their neighbours also came there. They rescued them from the clutches of the accused. He received injuries on his head and chest. His father, brother and uncle also received injuries. He alongwith his father and brother went to the Police Station. When they came back to their home, they found uncle has died. In his cross-examination, he has admitted that no quarrel has taken place between 5.00 P.M. to 10.00 P.M. According to him, accused kept them beating for one hour. He has also admitted that people gathered on the spot and they separated them and thereafter they went to their respective houses. 11. PW-5 Shambu Ram has deposed that he remained Pradhan of Gram Panchayat, Jatnula in the year 2009. Police had come to the house of Bhagwan Dass and Kashmir Singh on 22.10.2009. Police took photographs. Police also took blood stains and put the same in a plastic container and sealed the same with seal impression =A'. He produced the seal in the Court. Police also seized one danda and one hockey stick vide seizure memo Ex.PW-2/B. He signed the same. 12. PW-6 Deepo Chaudhary has deposed that she knew Prem Dass, Kashmir Chand and Bhagwan Dass. Her house is on the back side of their house. All these persons were brothers and they were =Dever? (brother-in-law) in relationship. She did not remember the date though it was around one and half years ago. It was around 9-10 P.M., she heard the noise. She alongwith Pappu went to the spot. She saw Bhagwan Dass and Kashmir Chand were arguing with each other and Prem Dass was asking for removing of Bajri. Kashmir Chand was present alongwith his children and wife at the spot and the family of Bhagwan Dass was also present there. She alongwith Pappu persuaded the parties not to quarrel and thereafter they went away. Kashmir Chand's children were not having anything with them. Bhagwan Dass and Prem Dass had not sustained any injuries nor blood was oozing out. She was declared hostile. She was cross-examined by the learned Public Prosecutor. She alongwith Pappu persuaded the parties not to quarrel and thereafter they went away. Kashmir Chand's children were not having anything with them. Bhagwan Dass and Prem Dass had not sustained any injuries nor blood was oozing out. She was declared hostile. She was cross-examined by the learned Public Prosecutor. In her cross-examination by the learned Public Prosecutor, she has deposed that Prem Dass died next day of the quarrel. 13. PW-7 Karam Chand has deposed that around two years ago, some incident had happened in their village. However, he had gone to the spot in the morning. He came to know from some lady that Prem Dass and Kashmir Chand had some quarrel during the previous night. He had not gone to the spot at the time of quarrel during night. He was declared hostile and cross-examined by the learned Public Prosecutor. In his crossexamination, he has deposed that he heard the noise of quarrel coming from the house of Prem Dass, Bhagwan and Kashmir Chand and he went there alongwith Deepo Chaudhary and Rajinder alias Pappu. His house was just behind the house of Bhagwan Dass. He has denied the suggestion that he told the police that accused Gulshan, Gulzar, Kashmir Chand and Nirmala Devi were assaulting Bhagwan, Prem, Madan and Man Chand in the courtyard of Bhagwan Dass. He has also denied the suggestion that accused Gulzar was having Danda and accused Gulshan was having hockey stick and assaulting these persons. He has also denied the suggestion that he alongwith Deepo Chaudhary intervened and saved the injured. He has also denied the suggestion that Bhagwan Dass, Prem Dass, Madan Lal and Man Chand had sustained injuries. He has also denied the suggestion that accused persons assaulted Prem Dass in his presence and caused injury on his head, due to which he died. 14. Statements of PW-8 Purshotam Lal, PW-9 Surjeet Singh, PW-10 Paramjeet Singh and PW-11 Trilok Raj are formal in nature. 15. PW-12 Dr. K.L. Kapoor has conducted post mortem and issued post mortem report Ext. PW-12/B. According to him, accused died due to Hypovolemic shock and respiratory failure secondary to right lung puncture and liver injury secondary to direct trauma to right fractured lower ribs. The time between injury and death was within one hour and post mortem was conducted within less than 24 hours. PW-12/B. According to him, accused died due to Hypovolemic shock and respiratory failure secondary to right lung puncture and liver injury secondary to direct trauma to right fractured lower ribs. The time between injury and death was within one hour and post mortem was conducted within less than 24 hours. According to him, the injuries mentioned in PMR could be caused by Danda and hockey sticks. 16. PW-13 Prem Chand has deposed that on 22.10.2009, after registration of FIR, he received the file for investigation. He visited the spot. He took photographs. He prepared the inquest report. The hockey sticks and Danda were taken into possession vide memo Ext. PW-2/B. He got the post mortem of the dead body conducted. 17. Statement of PW-14 Kamal Kumar is formal in nature. 18. What emerges from the analysis of the statements of the witnesses mentioned herein above is that the complainant, accused and deceased are related to each other. PW-2 Madan Lal alongwith his family members was thrashing the paddy. The passage lies between the houses of the accused and complainant party. PW-2 Madan Lal asked them to remove the Bajri lying on the passage. Accused came on the spot. Gulshan gave beatings to them with hockey stick and accused Gulzar gave them beatings with Danda. They received injuries. They went to the Police Station. They came back to their home and found Prem Dass has died. Thereafter, FIR Ext. PW-2/A was registered. Hockey stick Ext. P-1 and Danda Ext. P-2 were taken into possession vide memo Ext. PW-2/B. The cause of death as per PMR Ext. PW-12/B is due to Hypo volumic shock and respirator failure secondary to right lung puncture and liver injury secondary to direct trauma to right fractured lower ribs. The time between injury and death was within one hour and post mortem was conducted within less than 24 hours. According to him, the injuries mentioned in PMR could be caused by Danda and hockey sticks. 19. Accused persons were also medically examined by PW-3 Dr. Navneet Chauhan. She issued MLCs Ext. PW-3/A, Ext. PW-3/B, Ext. PW-3/C and Ext. PW-3/D. It is evident from the MLC's that accused persons have also received injuries, as noticed herein above. The cause of quarrel is stacking of Bajri, which was lying between the houses of the complainant and accused. PW-2 Madan Lal had asked accused party to remove the Bajri. She issued MLCs Ext. PW-3/A, Ext. PW-3/B, Ext. PW-3/C and Ext. PW-3/D. It is evident from the MLC's that accused persons have also received injuries, as noticed herein above. The cause of quarrel is stacking of Bajri, which was lying between the houses of the complainant and accused. PW-2 Madan Lal had asked accused party to remove the Bajri. It led to arguments and thereafter the quarrel took place. It was not a pre-meditated act on behalf of the accused. According to PW-2 Madan Lal, quarrel lasted for half an hour and according to PW-4 Man Chand the quarrel lasted for one hour. They were rescued by Rajinder Kumar, PW-7 Karam Chand and PW-6 Deepo Devi. Rajinder Kumar has not been examined by the prosecution. PW-6 Deepo Devi and PW-7 Karam Chand have not supported the case of prosecution. They were declared hostile and cross-examined by the learned Public Prosecutor. Other independent witness Rajinder Kumar has not been examined. 20. Now, the Court is left with only the statements of closely related witnesses i.e. PW-2 Madan Lal and PW-4 Man Chand. Statements of the related witnesses can be taken into consideration but after due caution and care. 21. Mr. Manoj Pathak, learned advocate for the appellant has vehemently argued that it is not a case of murder. According to him, it was not a premeditated act. It was a sudden fight in the heat of passion. We have already noticed that it was not a premeditated act. The complainant party had asked the accused party to remove the Bajri which led to fight in the heat of passion. It has come in the evidence that complainant was asking the accused to remove the Bajri immediately. It was 10.00 pm at night. It was not expected from the accused to remove the Bajri during night at 10.00 P.M. The complainant party insisted at night the accused to remove the Bajri, which led to a sudden fight, thus the offence would be covered under Exception (4) of Section 300 of the Indian Penal Code as far as accused Gulshan and Gulzar are concerned. The evidence led qua the role of accused Kashmir Singh Nirmala is very sketchy and vague. Even if it is assumed that accused Kashmir Singh and Nirmla Devi have given kick and fist blows, it could not lead to fracture of the ribs of the deceased. The evidence led qua the role of accused Kashmir Singh Nirmala is very sketchy and vague. Even if it is assumed that accused Kashmir Singh and Nirmla Devi have given kick and fist blows, it could not lead to fracture of the ribs of the deceased. Kashmir Singh was 61 years old at the time of recording of his statement under Section 313 CrPC on 26.11.2011 and incident is dated 21.10.2009, thus he was 59 years of age at the time of incident. Nirmala Devi was 56 years at the time of recording of her statement under section 313 CrPC on 16.11.2011 and was 54 years on the date of incident on 21.10.2009. The prosecution has also not explained the injuries received by the accused. The prosecution has not led any evidence to whom beatings were given by accused Kashmir Singh and Nirmala Devi with fist and kick blows. There is only a bald assertion that they started giving beatings with fist and kick blows. Thus, the prosecution has failed to prove the case beyond reasonable doubt as far as accused Kashmir Singh and Nirmala Devi under sections 302 and 323 of the Indian Penal Code is concerned. 22. We have scanned the entire evidence and are of the considered opinion that it is not a case of murder. However, accused Gulshan and Gulzar knew that injuries caused by them to the deceased could cause death. Thus, the case would fall within the ambit of section 304 Part-II of the Indian Penal Code. Accused Gulshan and Gulzar have rightly been convicted under section 323 of the Indian Penal Code for the injuries caused by them to the complainant party as per medical evidence of PW-1 Dr. Anjali Gupta. 23. Accordingly, the appeal is partly allowed. Accused Kashmir Singh and Nirmala Devi are acquitted of the charges framed against them by giving them benefit of doubt. Accused Gulshan and Gulzar are convicted under Section 304 Part-II of the Indian Penal Code, instead of Section 302 of the Indian Penal Code. Conviction of accused Gulshan and Gulzar under section 323 IPC is upheld. Accused Gulshan and Gulzar be produced before the Court on 17.6.2015 to be heard on the quantum of sentence. Fine amount, if already deposited by accused Kashmir Singh and Nirmala Devi be refunded to them. Conviction of accused Gulshan and Gulzar under section 323 IPC is upheld. Accused Gulshan and Gulzar be produced before the Court on 17.6.2015 to be heard on the quantum of sentence. Fine amount, if already deposited by accused Kashmir Singh and Nirmala Devi be refunded to them. Since both the accused i.e. Kashmir Singh and Nirmala Devi are in jail, they be released forthwith, if not required in any other case. 24. The Registry is directed to prepare the release warrant of accused Kashmir Singh and Nirmala Devi and send the same to the Superintendent of Jail concerned in conformity with this judgment forthwith.