JUDGMENT 1. - The appellants, Dhanraj, Ramsahai, Mahaveer, Hajari Lal, Maya Ram, and Ramphool have challenged the judgment dated 20.4.2005, passed by the Addl. Sessions Judge (Fast Tract) No.1, Tonk, whereby the learned Judge has convicted them for offences under Sections 148, 341 and 302 read with Section 149 IPC. For offence under Section 148 the appellants have been sentenced to two years of rigorous imprisonment, imposed with a fine of Rs. 200/- each, and directed to further undergo a sentence of fifteen days of simple imprisonment. For offence under Section 341, they have been sentenced to one month of simple imprisonment. For offence under Section 302/149 they have been sentenced to life imprisonment, imposed with a fine of Rs. 2000/- each, and directed to undergo six months of simple imprisonment in default thereof. It was further directed that the sentence for offences under Sections 148 and 341 IPC would be undergone before the sentence for life imprisonment begins. 2. Briefly the facts of the case are that Foru (P.W.2) lodged a report at Police Station Thad, District Tonk, on 25.4.2004 at 9:30 AM. The report when translated into English, reads as under:- "To The S.H.O. Police Station Thad, District Tonk (Rajasthan) Subject:- About the assault on my brother Ghasi Lal. Sir, In reference to the above noted subject it is submitted that today on 25.4.2004 at 7:00 AM the incident occurred. My elder brother Ghasi Lal son of Ramnarayan Meena, was a resident of Muglana. My brother was sitting at his well. In order to construct his house he went to get the bricks from his brother-in-law, Ladu Lal in village Thokarvas. On his way to the village Muglana-Ka-Tal, he was intercepted by Hajari son of Jwana, Ramsahai son of Hajari, Maya Ram son of Hajari, Dhanraj son of Pokhar, Mahaveer son of Pokhar, Ramphool son of Pokhar, residents of Muglana, and by their wives Ladi wife of Hajari, Mathura wife of Pokhar, Ramjanki wife of Ramsahai, Meera wife of Mayaram, and Roshan wife of Dhanraj Meena, also residents of Muglana. These persons surrounded him. Hajari fired a gun which struck him below his knees. Ramsahai struck him on the elbow of his right arm, Mahaveer struck him on the elbow of the left arm. The rest assaulted him with kulharies (axes) and wooden sticks. These persons surrounded him. Hajari fired a gun which struck him below his knees. Ramsahai struck him on the elbow of his right arm, Mahaveer struck him on the elbow of the left arm. The rest assaulted him with kulharies (axes) and wooden sticks. When we heard the alarm raised by him, I, Foru, my elder brother Kailash, Kailash's son Sualal, Ram Lal son of Nanda Meena rushed to Muglala. Seeing us coming, these persons left my brother as dead. My brother had about Rs. 20,000/- in his purse which was taken away by these persons. We brought our brother back to the well situated at Dohri. While taking him to the hospital he died. I request that these persons should be arrested and should be punished." 3. On the basis of this report (Ex.P.2) the police chalked out a formal FIR (Ex.P.27), namely FIR No.71/2004 for offences under Sections 147, 148, 149, 341, 302 and 379 IPC. After completing the investigation, the police filed a charge-sheet against the appellants for offences under Sections 147, 148, 149, 341 and 302 IPC. The Trial Court charged them for offences under Sections 148, 341, 302 read with Section 149 IPC. 4. In order to support its case the prosecution examined fifteen witnesses, and submitted forty-seven documents. In turn the defence examined seven witnesses, and submitted seven documents. After completion of the trial, the learned Judge convicted and sentenced the appellants as aforementioned. Hence, this appeal before this court. 5. Before this court examines the contentions raised by the learned counsel for the appellants, it will be fruitful to briefly summarise the evidence produced by the prosecution. 6. The prosecution has produced four eye-witnesses, namely Foru (P.W.2), Kailash son of Sualal Meena (P.W.5), Kailash son of Ramnarayan Meena (P.W.8), and Ram Lal (P.W.10). In his examination-in-chief, Foru (P.W.2) informed the court that "Ghasi Lal was my brother. The incident happened on 25.4.2004. I was at our well which is located in village Muglana. It was about 7 o'clock in the morning, I was digging the foundation near my well. Kailash, my brother was also with me. Ram Lal was also with me and he was watering the boundary wall. My brother Ghasi left from the well, and was walking towards the village. Shortly thereafter we heard shouts and screams. Ram Lal's attention was drawn when he heard the shouts. Kailash, my brother was also with me. Ram Lal was also with me and he was watering the boundary wall. My brother Ghasi left from the well, and was walking towards the village. Shortly thereafter we heard shouts and screams. Ram Lal's attention was drawn when he heard the shouts. Ram Lal said they have killed Ghasi. Therefore, we all left the foundation and went to the spot. We saw that Ghasi was being attacked by Hajari, Maya Ram, Ramsahai, Dhanraj, Mahaveer, Ramphool, and Mishrilal. About ten to fifteen persons were assaulting Ghasi with kulharies, gandasies and wooden sticks. They also had a gun with them. When we reached the spot, these persons left on a tractor trolley. When we saw them, they were assaulting Ghasi in the field of Kastoora Lohar. Of those who assaulted him, today Maya Ram, Ramsahai, Dhanraj, Mahaveer and Ramphool are present in the court. The moment they saw us, they ran away in a tractor trolley. We did nothing. They ran away towards Dooni. The tractor was standing nearby in which they escaped. Hajari was armed with a gun, Maya Ram and Mahaveer had kulhari in their hands, Dhanraj and Ramsahai had gandasi in their hands, Ramphool had a sword, the rest had only lathies with them. There was blood on the hands and feet and on the knee and on the rest of the body. There were injuries all over his body. We picked up Ghasi and brought him to our well. When we brought him to the well, the police had arrived. We took Ghasi to Dooni hospital. It is the police who took him to the hospital. From Dooni we brought him in a jeep. When we brought him in a jeep the hospital had already fixed a drip on him. We brought him to Tonk. But when we lifted him from the jeep, he expired. Ghasi had told us that he was going to Thokravas to our brother-in-law for the purpose of buying bricks. He would take the brother-in-law to Devli or Tonk for the said purpose. He had about Rs. 20,000/- with him, which we could not find. He also had a watch, which we could not locate. I had submitted the report Ex.P.2 before the police. It contains my signature at mark 'a' to 'b'. He would take the brother-in-law to Devli or Tonk for the said purpose. He had about Rs. 20,000/- with him, which we could not find. He also had a watch, which we could not locate. I had submitted the report Ex.P.2 before the police. It contains my signature at mark 'a' to 'b'. The witness then proved the site plan (Ex.P.3), panchayatnama (Ex.P.1), the receipt of the corpse (Ex.P.4). He further claimed that there was already an animosity between the accused and them over land. According to him Ghasi was killed only because of this animosity. 7. In his cross-examination he claims that "Ghasi Lal used to live separately from him. All three of the brothers have houses in the village. Ghasi's well is outside the village. It is a shared well". Then he said that for the last four or five months they were not living in the village but were living at the well site. "I cannot tell the distance between the village and the well, but between the village and the well there is a village pond. The well is right next to the village pond. The distance between the village and the well is about the same distance as between the court and the clock tower (ghantaghar) (which is about 200-250 meter away). Ram Lal also has his shared well at the same place, which is ours. The well and the field belonging to Kastoora Lohar are separated by a single field. It is wrong to say that the distance between the well and the place of incident is about 2-1/2 kilometer. It is wrong to say that Kastoora's field is about 2-1/2 kilometer away from the village. Instead it is not at such a distance. How far I cannot say. In the statement given to the police (Ex.P.1) I told the police about my and Kailash's digging the foundation. Why it is not there I cannot tell. I had also told them that Ram Lal was busy watering the wall. Why it is not there, I cannot tell. I had also told them that upon hearing the shouts, Ram Lal said "they have killed Ghasi". Why this fact is not mentioned in Ex.P.2, I cannot tell. I had also told them that ten to fifteen persons were there. But why the report does not say so, I do not know. Why it is not there, I cannot tell. I had also told them that upon hearing the shouts, Ram Lal said "they have killed Ghasi". Why this fact is not mentioned in Ex.P.2, I cannot tell. I had also told them that ten to fifteen persons were there. But why the report does not say so, I do not know. In Ex.D.1 why the number of ten to fifteen is not mentioned, I cannot say. That Mahaveer and Maya Ram had kulhari with them has not been recorded in Ex.P.2, but I cannot say why. Why Mahaveer having a kulhari has not been mentioned in Ex.D.1, I cannot tell. Dhanraj and Ramsahai having a gandasi with them, why this fact is neither mentioned in Ex.P.2 or in Ex.D.1, I cannot say. I had told the police about this fact. Ramphool having a sword has neither been mentioned in Ex.P.2, nor Ex.D.1, I cannot say why. I had told them. From the place of the incident to the well we had carried Ghasi in a bullock cart. The distance is not too far. It would have taken ten to twelve minutes. We had just lifted him from the bullock cart when the police arrived at the well. We took him to Dooni from the well in an injured condition. I accompanied Ghasi in his injured condition from well to Dooni and from Dooni to Tonk. The post-mortem was conducted in the hospital. It is only after he died, when post-mortem was conducted, that I had submitted the report (Ex.P.2) to the S.H.O. I had gotten the report (Ex.P.2) written by a man who was sitting in the hospital. But I do not know him. I am not a literate person. I cannot tell you whether he was a lawyer or not, because I do not know. There are lot of cases between us and the accused. It was only known to Ghasi as to which case is before which court. I do not know. Besides the present case before this court there is another case which is pending before this court. I am not an accused in that case. Then he said yes I am an accused in that case. Then again he said no I am not an accused in that case. There is no case against me. I do not know. Besides the present case before this court there is another case which is pending before this court. I am not an accused in that case. Then he said yes I am an accused in that case. Then again he said no I am not an accused in that case. There is no case against me. It is wrong to say that there is a case against me along with my father. It is wrong to say that from our well we cannot see the field of Kastoora Lohar. It is wrong to say that all four of us had not seen the incident. It is wrong to say that only subsequently we came to know that such an incident had occurred. In fact we had seen it. It is wrong to say that because of our old animosity we are falsely involving Hajari and his sons, Pokhar and his sons and their women. It is wrong to say that I had filed a false report after consulting a lawyer. We did not consult a lawyer". 8. Kailash son of Sualal (P.W.5) also corroborates the testimony of Foru (P.W.2). In his cross-examination he does admit that he and Ghasi had filed a civil suit before the Court of District Judge against Chhitar son of Jagannath, Dhapu daughter of Jagannath and Hajari son of Jwana, Mokhar son of Jwana and that the accused persons are their family members. He further explains that the animosity arises out of the fact that the complainant party had bought a piece of land from father of Chhitar, but after his father's death Chhitar had sold the property to Pokhar and Hajari, the accused persons. The land subsequently was mutated in the names of Pokhar and Hajari. Therefore, civil litigation had started between the parties. He further explains that although the land was not registered in the names of the complainant's family, but there was an agreement on a piece of paper. He also admits that it is true that after the accused had bought the property and got it registered in their name, the complainant party had filed a civil suit before the District Court. He denies the fact that in 2002 when Pokhar and Hajari had gone to sow the land, the complainant party had assaulted him. According to him the accused party had falsely implicated them in a case. He denies the fact that in 2002 when Pokhar and Hajari had gone to sow the land, the complainant party had assaulted him. According to him the accused party had falsely implicated them in a case. But he does admit that the criminal case is pending before the court at Devli. He also admits that on 20.12.2003 the complainant party had lodged a criminal case against the accused for offences under Sections 447, 427 IPC for having destroyed the Mustard crop. He also admits that about eight months prior to the death of Ghasi, Ghasi's father Ramnarayan had lodged a report against the accused and their wives for assaulting. He also admits that at that time even the accused had filed a case against the complainant. But according to him the case lodged by the accused was false. He denies the fact that these cases are pending before the court and the court is seized with the trial of that case. 9. Both, Kailash son of Ramnarayan (P.W.8) and Ram Lal (P.W.10) corroborate the testimonies of Foru (P.W.2) and Kailash (P.W.5). Therefore, their testimonies are not being reproduced. 10. Dr. Kishore Garg (P.W.11) was a member of the Medical Board, which carried out the post-mortem on Ghasi Lal. The Post-Mortem Report is Ex.P.24. According to the Post-Mortem Report Ghasi had suffered twenty-two injuries, which are as under:- (1) Bruise 3"x 3" (R) Distal arm (2) Lacerated wound 3/4" x 1/2" (R) Distal arm. (3) Compound fracture Distal arm bone of right. (4) Hematoma 6"x 3" (R) Elbow region extending to proximal forearm. (5) Lacerated wound 3/4"x 1/4" elbow region (R) (6) Compound fracture proximal (R) forearm. (7) Mecath on (R) distal forearm and Abrasion 2"x 2" distal (R) forearm (8) Lacerated wound 2"x 1/2" below (R) knee and on knee (R) with (R) leg bone compound fracture proximal region. (9) Lacerated wound 1/2"x 1/4" distal (R) c compound fracture (R) distal leg bone. (10) Abrasion 3"x 3" meddle 1/3 of (R) leg. (11) Fracture deformity (L) lower thighbone fracture. (12) Lacerated wound 1/2"x 1/4" (L) knee with bruise 3"x 3" (L) knee region and compound fracture (L) proximal leg bone of (L) side. (13) Buise 3"x 3" left middle leg. (14) Bruise 3"x 3" left hip region. (15) Hematoma 6"x 4" with fracture deformity of left lower leg bone. (11) Fracture deformity (L) lower thighbone fracture. (12) Lacerated wound 1/2"x 1/4" (L) knee with bruise 3"x 3" (L) knee region and compound fracture (L) proximal leg bone of (L) side. (13) Buise 3"x 3" left middle leg. (14) Bruise 3"x 3" left hip region. (15) Hematoma 6"x 4" with fracture deformity of left lower leg bone. (16) Bruise 3"x 2" over (L) lateral maleolus region of Ankle joint. (17) Lacerated wound 2"x 1/2" (R) angle of mandible. (18) Bruise 2"x 1" below (L) ear. (19) Abrasion 3"x 2" left shoulder region. (20) Lacerated wound 1'2"x 1/2" left arm with compound fracture middle half of (L) arm bone also hematoma 3"x 3" left arm. (21) Abrasion 2"x 1" Left Zygoma and (R) maxilla of face. Blood stain on (L) foot, (L) arm, (R) foot and leg. All (1) to (22) are blunt. 11. Mr. N.C. Choudhary, the learned counsel for the appellants, has raised the following contentions before this court: firstly, all the eyewitnesses are interested witnesses as they happen to be the brothers of Ghasi Lal, the deceased. Secondly, clearly there is an animosity between them and the accused appellants. The eye-witnesses admit the animosity. Therefore, the appellants have been falsely implicated in the present case. The falsity of the case is apparent from the fact that according to Foru (P.W.2), Maya Ram and Mahaveer were armed with kulhari, Dhanraj and Ramswaroop were armed with gandasi, and Ramphool was armed with a sword. All of these are sharp-edged weapons. Yet, according to the Post-Mortem Report (Ex.P.24) Ghasi did not suffer any injury from a sharp-edged weapon. Although the witnesses claim that Hajari had shot at Ghasi's knee, but there is no firearm injury on Ghasi's body. Therefore, there is a clear cut contradiction between the ocular evidence and the medical one. Lastly, according to the Post-Mortem Report all the injuries are on non-vital parts, mainly on hands and feet. Therefore, the intention of the appellants could not be to kill Ghasi Lal, but merely to teach him a lesson for the endless litigation that had erupted between the families. Therefore, the case does not fall within Section 302; at worst, it falls within Section 304 Part-II IPC. 12. On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor has contended that the occurrence had taken place not too far away from the well where the eye-witnesses were working. Therefore, the case does not fall within Section 302; at worst, it falls within Section 304 Part-II IPC. 12. On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor has contended that the occurrence had taken place not too far away from the well where the eye-witnesses were working. It was at the well that they had heard the hues and cries of Ghasi Lal and had rushed to his rescue. Therefore, even if they happen to be the brothers of the deceased, they are natural witnesses. Secondly, although the injuries may have been caused by blunt weapons, but they could be caused by the non-sharp side of the sharp-edged weapons. But the large number of injuries clearly reveal that the intention of the appellants was to kill Ghasi Lal. Therefore, the learned Public Prosecutor has supported the impugned judgment. 13. Without going into a detailed analysis of the evidence, suffice it to say that even if the prosecution story were to be accepted on its face value, the issue before this court is whether the large number of injuries reveal an intention to kill or merely to commit culpable homicide not amounting to murder. The prosecution claims that Maya Ram, Mahaveer, Dhanraj, Ramsahai and Ramphool, i.e. five persons out of the six appellants were armed with sharp-edged weapons, yet not a single injury by a sharp-edged weapon has been discovered. If the contention of the learned Public Prosecutor were accepted that these injuries were caused from the non-sharp side of the weapons, then obviously the intention was not to cause death of Ghasi Lal. If the appellants actually intended to cause his death, then nothing prevented them from using the sharp side of the weapons. 14. Moreover, a bare perusal of the Post-Mortem Report (Ex.P.24) reveals that all the injuries have been caused to the non-vital parts of the body. The injuries exist either on the arms or on the legs of Ghasi Lal. If the appellants had the intention to kill him, they would have gone for the vital parts of the body and not for the non-vital ones. Thus, their intention is not to cause his death per se. But having caused multiple injuries with the intention to teach him a lesson, the appellants would have known that they are likely to cause his death. Thus, their intention is not to cause his death per se. But having caused multiple injuries with the intention to teach him a lesson, the appellants would have known that they are likely to cause his death. Thus, the offence does not fall within Section 302 IPC, but falls within Section 304 Part-II IPC. 15. In the case of Kashi Ram and others v. State of M.P. [ (2002) 1 SCC 71 ] , the Apex Court also dealt with a case where the injuries were on the lower part of the body of deceased. Considering the fact that the injuries were on the non-vital parts of the body, the Apex Court converted the offence from one under Section 302 IPC, to one under Section 304 Part-I IPC. 16. For the reasons stated above, while this court converts the offence from one under Section 302 IPC to 304 Part-II IPC, and reduces the sentences from life imprisonment to seven years. But this court maintains their convictions for offences Sections 148 and 341 IPC, and confirms the sentences as awarded by the learned Trial Court. 17. The appeal is, hereby, disposed of. *******