JUDGMENT : G.K. Vyas, J. The instant cr. appeal has been filed by the accused appellant Nahar Singh under Section 374(2) Cr.P.C. against the judgment dated 17.4.2013 passed by the learned Addl. Sessions Judge, Dungarpur in Sessions Case No. 36/2010 whereby the learned trial court while acquitting the accused Vikram Singh, Smt. Meena Kuwar, Smt. Andar Kuwar, Smt. Devu Kuwar and Shambhoo Singh for the offences under Sections 148, 452, 323, 324/149, 302, 302/149 and 307 IPC and acquitting the accused appellant Nahar Singh from the offences under Sections 148, 323, 324/149, 302/149 and 307 IPC, convicted the accused appellant Nahar Singh for offence under Section 302, 452, 324 and 323/34 IPC and passed the following sentences: Under Section 302 IPC Life Imprisonment and a fine of Rs.10,000/- in default of payment of fine to further undergo two years additional RI. Under Section 452 IPC Three years RI and a fine of Rs.1,000/- and in default of payment of fine to further undergo two months additional RI. Under Section 324 IPC One year RI and a fine of Rs.500/-and in default of payment of fine to further undergo one month additional SI. Under Section 323/34 IPC Two months SI and a fine of Rs.100/- and in default of payment of fine to further undergo one month SI All the sentences were ordered to run concurrently. 2. Under Section 324 IPC One year RI and a fine of Rs.500/-and in default of payment of fine to further undergo one month additional SI. Under Section 323/34 IPC Two months SI and a fine of Rs.100/- and in default of payment of fine to further undergo one month SI All the sentences were ordered to run concurrently. 2. On 11.5.2010 at about 10.00 pm the complainant Arjun Singh admitted in the surgical ward of General Hospital, Sagwara at Bed No. 7 gave oral information to the ASI Lal Singh of Police Station Aaspur, wherein following allegations were made by him, which reads as under:- bryk tckuh ceqdke tujy gksLihVy lkxokMk fnukad 11-05-2010 bl le; Jh vtqZuflag firk uoyflag tkfr pkoMk jktiwr mez 28 o"kZ fuoklh iM+kSyh Fkky vkliqj ceqdke tSj bZykt lftZdy okMZ [kkV ua0 7 tujy gkWLihVy lkxokMk tckuh lwpuk nh fd dy fnukad 10-05-2010 dks Jh ukgj flag firk ljrkt flag tkfr pkoMk fuoklh iM+kSyh dk ts0lh0ch0 ls gekjs [ksrksa esa tkus okys jkLrs dh [kqnkbZ djok jgk Fkk ftlus gekjs [ksr dh rjQ [kqnkbZ djok nh] gekjs euk djus ij >xM+k djus ij vkenk gqvk vkt fnukad 11-05-2010 dh 'kke 5 cts ds yxHkx eSa rFkk HkkbZ Jh jkeflag o Hkokuh flag rhuksa [ksrksa dh rjQ tk jgs Fks fd jkLrs esa gekjs cMs+ ikik Jh ukFkwflag firk tksjkojflag ds ?kj ij ge :d x;s dqN nsj ckn eSa o jkeflag vius ?kj pys x;s fd 'kke 6 cts ds yxHkx ukgj firk ljrktflag] Jh fd'kksjflag firk ukgj flag] Jhefr nsodqaoj iRuh ukgjflag] Jh fodzeflag firk nkSyrflag] Jhefr vUnjdqaoj iRuh jkeflag o fd'kksjflag dh iRuh dk uke ukekywe tkfr pkoMk fuoklh iM+kSyh ds gkFkksa esa yB] pkdw] ryokj ls ySl gksdj esjs cM+s ikik ds ?kj x;s o HkkbZ Hkokuhflag ds tku ysok geyk dj fn;kA gYyk lqudj eSa Hkh nkSM+dj ogka x;k ns[kk rks HkkbZ Hkokuhflag ds flj esa fd'kksj flag us yB ekjk Hkokuhflag uhps fxj x;k rks ukgj flag us pkdw ls Hkokuh flag ds isV esa rhu pkj okj fd;s eSa cpko djus yxk rks ukgjflag us pkdw ls esjs mij okj fd;k tks cka;s gkFk dh Hkqtk ij nks pksV ekjh rFkk fd'kksjflag us esjs flj esa yB ekjk eSa Hkh uhps fxj x;k gYyk lqudj HkkbZ jkeflag ogka vk x;k rks nsodqaoj o vUnjdqaoj us mls idM+ fy;k fodze flag rks pkdw ls okj djus yxk vUnjdqaoj us Hkh jkeflag ds ihB ij rhu pkj okj fd;s ekSds ij HkkHkh Jhefr xqykc iRuh ukFkwflag] Qrgdqaoj iRuh eksrhflag] ekuflag firk ljnkjflag fuoklh iMkSyh us chp cpko fd;k rc rd xkao ds dkQh yksx ogka vk x;s Fks gesa ehuh cl esa cSBkdj lkxokMk vLirky yk jgs Fks fd jkLrs esa ljkSnk ds ikl eksckbZy 108 feyh ftlesa cSBdj lkxoku vk;s HkkbZ Hkokuhflag dh vLirky vkus ij MkWDVj lk0 us e`r crk;k o HkkbZ jkeflag dks vgenkckn jsQj fd;k gSA ?kVuk ds ckn Jh 'kEHkwflag firk ukgjflag pkSgku fuoklh oekLi rkrksyk thi ysdj iM+kSyh vk;k rFkk eqfYtekuksa dks thi esa cSBkdj Qjkj gks x;kA bu yksxksa us tehu laca/kh fookn dks ysdj lHkh ,d jk; gksdj o gfFk;kjksa ls ySl gksdj gekjs mij tkuysok geyk dj gesa t[eh fd;k ftlls esjs HkkbZ Hkokuhflag dh e`R;q gks x;h rFkk gesa ?kk;y dj fn;s gSaA bRryk djrk gwa dk;Zokgh djkosaA ,lMh vtqZuflag Upon aforesaid statement, on 11.5.2010 FIR No. 80/2010 was registered at Police Station Ashpur, District Dungarpur. After registration of FIR, the investigation was commenced. The dead body of deceased Bhawani Singh was taken to the hospital, where post mortem was conducted by the medical jurist on 12.5.2010 (Ex.P/15) in which two injuries were found upon the body of the deceased Bhawani Singh. The investigating officer arrested Nahar Singh (present appellant), Vikram Singh, Smt. Meena Kuwar, Smt. Andar Kuwar, Smt. Devu Kuwar and Shambhu Singh and upon information given by them weapons were recovered and after completion of investigation, filed charge-sheet against seven persons in the court of Judicial Magistrate, Ashpur under Sections 147, 148, 447, 323, 324, 307 and 302/149 IPC from where the case was committed to the Sessions Court, Dungarpur for trial. The learned Sessions Judge transferred the case for trial in the court of Addl. District & Sessions Judge, Dungarpur. 3. In the trial court before commencement of trial, an application was filed on behalf of accused Kishore Singh that he was less than 18 years of age on the date of incident, therefore, his pending case may be transferred to the Juvenile Justice Board. After inquiry, the learned Addl. Sessions Judge, Dungarpur transferred the case of accused Kishore Singh to the Juvenile Justice Board, Dungarpur and framed charge against remaining six accused under Sections 148, 452, 323, 324, 324/149, 302, 302/149 and 307 IPC after providing an opportunity of hearing them, but all the accused denied the charges and prayed for trial. 4. In the trial, statements of 20 prosecution witnesses were recorded and 24 documents were exhibited and six articles were produced in the court to prove the prosecution case. 5. After recording evidence of prosecution, the statement of all the accused were recorded under Section 313 Cr.P.C., but all the accused denied the allegations levelled by the prosecution witnesses and said that they are innocent and no offence is committed by them. 6. In the trial, 5 witnesses were produced in defence before the court namely DW-1 Vikram Singh, DW-2 Smt. Gaje Singh, DW-3 Narendar Kumar, DW-4 Krishan Pratap Singh and DW-5 Dr. Sandeep Agarwal and 11 documents were exhibited from defence side. 7. 6. In the trial, 5 witnesses were produced in defence before the court namely DW-1 Vikram Singh, DW-2 Smt. Gaje Singh, DW-3 Narendar Kumar, DW-4 Krishan Pratap Singh and DW-5 Dr. Sandeep Agarwal and 11 documents were exhibited from defence side. 7. The learned trial court after recording evidence of both the sides finally heard the argument of both the sides and acquitted the accused Vikram Singh, Smt. Meena Kuwar, Smt. Andar Kuwar, Smt. Devu Kuwar and Shambhu Singh from all the charges levelled against them under Sections 148, 452, 323, 324/149, 302, 302/149 and 307 IPC, so also acquitted the accused appellant Nahar Singh from the offences under Sections 148, 323, 324/149, 302/149 and 307 IPC but held accused appellant Nahar Singh guilty for the offences under Sections 302, 452, 324 and 323/34 IPC and passed the sentence mentioned above vide judgment dated 17.4.2013 in Sessions Case No. 36/2010. 8. The learned counsel for the appellant submits that prosecution has failed to prove its case beyond reasonable doubt, therefore learned trial court acquitted all the other co-accused upon evidence available on record, but committed an error to convict the accused appellant Nahar Singh for offence under Section 302 IPC because no offence under Section 302 IPC is made out against the accused appellant, more so, even if the prosecution evidence is accepted then the offence cannot travel beyond offence under Section 304 Part II IPC against the accused appellant Nahar Singh. The above argument of the learned counsel for the appellant is based upon following grounds: A. Out of six accused persons against whom charge sheet was filed, the learned trial court after trial gave its finding that prosecution has failed to prove its case against accused Vikram Singh, Smt. Meena Kuwar, Smt. Andar Kuwar, Smt. Devu Kuwar and Shambhoo Singh for the offences under Sections 148, 452, 323, 324/149, 302, 302/149 and 307 IPC and acquitted them, therefore, the prosecution case is based upon concocted story. B. The injuries found upon the body of the accused appellant as well as other family members are not explained by the prosecution. The accused party placed on record the injury reports of 4 persons in defence. B. The injuries found upon the body of the accused appellant as well as other family members are not explained by the prosecution. The accused party placed on record the injury reports of 4 persons in defence. C. The argument of the learned counsel for the appellant is that there is finding of the learned trial court that complainant party was aggressor, therefore, there was no question to hold accused appellant Nahar Singh guilty. D. As per prosecution case it was free fight in which two injuries mentioned in the post mortem report were found upon the body of the deceased, but who caused these injuries is not proved by the prosecution witness, but only for the reason that as per prosecution case, the accused appellant was having knife in his hand, therefore, held guilty for the offence under Section 302 IPC, but this fact cannot be taken into account so as to hold accused appellant guilty for offence under Section 302 IPC because complainant party was agressor. E. In the FSL report (Ex.P/28) no blood group was found upon the knife, which is said to be recovered from the accused appellant. F. In the post mortem report (Ex.P/15) two injuries were found upon the body of the deceased Bhawani Singh and as per statement of PW - 16 Dr. Shefudeen the injury No. 1 was cause of death in the ordinary course of nature and further it is stated by the doctor that injury No. 2 was not cause of death, so also, it is specifically stated by the doctor that these injuries were not caused intentionally. It can be caused in the quarrel took place in between number of persons. Therefore, as per argument of the learned counsel for the appellant it is a case of culpable homicide not amounting to murder, therefore, the finding of the learned trial court to hold accused appellant guilty for offence under Section 302 IPC is totally erroneous. It can be caused in the quarrel took place in between number of persons. Therefore, as per argument of the learned counsel for the appellant it is a case of culpable homicide not amounting to murder, therefore, the finding of the learned trial court to hold accused appellant guilty for offence under Section 302 IPC is totally erroneous. G. It is further submitted that in the statement recorded under Section 313 Cr.P.C. the accused appellant gave their explanation that complainant party was aggressor and after assessing entire evidence, the learned trial court accepted fact that the complainant party was aggressor and they inflicted injury by stone to Smt. Devu Kuwar (wife of the accused appellant) and Arjun Singh, Bhawani Singh (deceased), Ram Singh and Nathu Singh they gave severe beating to his son Kishore Singh, therefore, as per evidence the free fight took place in which the injuries were caused to the accused party as well as to the complainant party. H. As per argument of the learned counsel for the appellant the main ingredient which is intention/motive is absent in this case, therefore, the offence cannot travel beyond offence under Section 304 Part II IPC. Therefore, the conviction of the accused appellant for offence under Section 302 IPC may kindly be quashed. 9. The learned Public Prosecutor vehemently opposed the prayer and submits that although there is finding in the judgment of learned trial court that the complainant party was aggressor, but this court cannot lose sight of the fact that sharp edged weapon knife was recovered as per the information given by the accused appellant and two injuries of knife were found upon the body of the deceased mentioned in the post mortem report (Ex.P/15), therefore, it cannot be said that there was no intention of accused appellant to commit murder of the deceased Bhawani Singh even though the incident took place in between the number of persons. 10. Learned Public Prosecutor submits that it is a case in which the learned trial court has rightly convicted the accused appellant for offence under Section 302 IPC and punished with sentence of life imprisonment. 10. Learned Public Prosecutor submits that it is a case in which the learned trial court has rightly convicted the accused appellant for offence under Section 302 IPC and punished with sentence of life imprisonment. Learned Public Prosecutor further argued that there is no substance in the argument of the learned counsel for the appellant that offence cannot travel beyond offence under Section 304 part II IPC, the finding given by the learned trial court to hold accused appellant guilty for offence under Section 302 IPC does not require any interference. 11. After hearing the learned counsel for the parties, we have perused the entire evidence and considered the arguments advanced by the learned counsel for the appellant as well as public prosecutor. 12. Admittedly, the FIR was lodged against seven persons and after investigation, charge-sheet was also filed against seven persons in the court of Judicial Magistrate, Ashpur, but after due inquiry vide order dated 13.3.2011, the case of accused Kishore Singh was transferred to the Juvenile Justice Board for trial because he was minor on the date of incident, which is 11.5.2010. It is also not in dispute that after trial, the learned trial court acquitted Vikram Singh, Smt. Meena Kuwar, Smt. Andar Kuwar, Smt. Devu Kuwar and Shambhoo Singh for the offences under Sections 148, 452, 323, 324/149, 302, 302/149 and 307 IPC, so also acquitted the accused appellant Nahar Singh from the charge levelled against him under Section 148, 323, 324/149, 302/149 and 307 IPC but held him guilty for offence under Sections 302, 452, 324 and 323/34 IPC and passed the sentence above mentioned. 13. In the judgment impugned there is finding of trial court that complainant party was aggressor. 13. In the judgment impugned there is finding of trial court that complainant party was aggressor. In the statement of the accused appellant recorded under Section 313 Cr.P.C. he has narrated the incident, therefore, we have perused the explanation given by the accused appellant Nahar Singh in his statement recorded under Section 313 Cr.P.C. which reads as under:- ^^eSa Hkokuhflag dks iwNdj jkLrk pkSM+k dj jgk FkkA vtqZuflag us vkdj >xM+k fd;k FkkA eSaus dke jksddj JCB cUn dj nh o ?kj vk x;k FkkA vtqZuflag uss ml le; eq>s ns[k ysus dh /kedh nh Fkh ftlds rgr mlus VsyhQksu dj vgenkckn ls vius HkkbZ;ksa dks vxys fnu cqyk fy;k rFkk vxys fnu mUgksaus jkthukes dh dksbZ ckr ugha dh cfYd eq>s ekjus ds fy;s ukFkwflag ds ?kj ij bdV~Bs gks x;s rFkk >xM+k 'kq: djus ds fy;s esjh iRuh Jherh nsodqaoj dks iRFkj ekjk ftl ij esjk yM+dk fd'kksjflag nsodqaoj dh rjQ nkSM+k rks vtqZuflag] Hkokuflag o jkeflag us esjs csVs fd'kksjflag dks ukFkwflag ds vkaxu esa gkFk idM+dj [khap fy;k rFkk mls cqjh rjg ls ekjus yxsA fd'kksjflag fpYyk;k rks eSa ogka igqapk o euqgkj dh fd fd'kksjflag dks er ekjks rHkh esjs ij Hkh okj dj fn;k x;k rFkk eq>s] fd'kksj ds o nsodqaoj dks mBkdj ?kj ysdj vkbZA ogka ls geus iM+kSlh ls dgdj vgenkckn esa esjs cM+s yM+ds usikyflag ds bZykt dh O;oLFkk ds fy;s Qksu djk;k rc 'kEHkwflag viuh xkM+h ysdj vk;k o gesa iqfyl pkSdh ys x;k tgka fodzeflag Hkh vk x;k tgka ls ge vkliqj Fkkus x;s o Fkkus okys gesa vLirky ys x;s FksA ge rhuksa dks Hkkjh pksVsa vkbZ FkhA Hkokfuflag] vtqZuflag o jkeflag ds pksVs >xM+s ds chp cpko ds nkSjku vkbZ gksxh] rks eq>s ugha irkA gekjk o Hkokuhflag ds chp dksbZ >xM+k ugha FkkA gesa >wBk Qalk;k gS eSa funksZ"k gwaA eSaus fdlh dks dksbZ pksVsa ugha igqapkbZ FkhA** Upon perusal of the above explanation it is obvious that accused appellant is not disputing the place of occurrence and incident on 11.5.2010 but denied allegation for inflicting injury by him to the deceased. 14. 14. Upon perusal of the injury report of accused appellant and other family members (Ex.D/7 to D/11) it is found that number of injuries were found upon the body of Nahar Singh (accused appellant) Smt. Devu Kuwar (wife of accused appellant Nahar Singh), Kishore Singh (son of accused appellant) and Mohan Singh but these injuries are not explained by the prosecution in spite of the fact that those injuries were caused in the incident in question, therefore, the explanation given by the accused appellant in his statement recorded under Section 313 Cr.P.C. is completely corroborated from the injury reports of accused appellant and his family members. 15. We have perused the post mortem report (Ex.P/15) dated 12.5.2010 in which two injuries are mentioned by the doctor. The doctor gave following details of injuries and opinion in the post mortem report, which reads as under: "1. Penetrating wound over left lower part of chest above epigastrium. Front side 4cm x 1½cm x deep to heart right ventricle cut left 6th and 7th ribs, oblique large blood clot and bleeding in pericardium 2cm x 1cm stab wound over right ventricle. Both chamber are empty of blood. 2. Penetrating wound 4cm x 2cm x deep peritoneum cavity over right lower part of abdomen transfers just above iliac crest cutting subcutaneous tissue muscles and peritoneum bleeding present. In my opinion cause of death of deceased person is hypovolemic shock due to excess hemorrhage from right ventricle of heart stab wound" 16. We have also perused the statement of PW - 16 Dr. Sefudeen who conducted post mortem while working as medical officer in the General Hospital, Sagwada. The said doctor stated in the cross-examination that:- ^^esjh jk; ds vuqlkj izFke ?kko dh pksV ls e`rd dh e`R;q gqbZ FkhA pksV ua0 2 e`R;q ds fy;s i;kZIr ugha FkhA /kkjnkj gfFk;kj NksVh ryokj ;k pkdw ls nksuksa pksVsa vk ldrh gSA 2 pksV bjknru ugha ekjh gS >xM+s esa dgha Hkh yx ldrh gSA >xM+s esa chp esa vk tkus ls vU; fdlh O;fDr dks ekjuk gks vkSj nwljk O;fDr chp esa vk tk;s rks ;g nksuksa pksVsa vk ldrh gSaA** 17. Upon assessment of entire evidence, it emerges from the finding given by the trial court and evidence that the occurrence took place when stones were thrown by the complainant party upon Debu Kuwar wife of the accused appellant Nahar Singh. Upon assessment of entire evidence, it emerges from the finding given by the trial court and evidence that the occurrence took place when stones were thrown by the complainant party upon Debu Kuwar wife of the accused appellant Nahar Singh. Thereafter, free fight took place in which two injuries were caused to the deceased. Out of those two injuries, the injury No. 1 was cause of death in ordinary course of nature, but it is stated by the doctor that the said injury can be caused in the incident but it cannot be said it was caused with intention. It is also one of the important fact that injuries found upon the body of the accused appellant as well his family members including Smt. Devu Kuwar (wife of the accused appellant) and son Kishore Singh are not explained by the prosecution, therefore, obviously the ingredient of murder, which is motive and intention is absent in this case. 18. Upon consideration of the entire evidence, we are of the opinion that there is strength in the argument of the learned counsel for the appellant that finding given by the learned trial court for offence under Section 302 IPC is not sustainable in law, but at the same time, upon overall assessment of evidence, more particularly, the statement of accused appellant himself recorded under Section 313 Cr.P.C. coupled with the finding of the learned trial court that complainant party was aggressor and opinion of the doctor, we are of the opinion that the finding for conviction of the accused appellant for offence under Section 302 IPC given by the learned trial court is not sustainable in the eye of law because upon assessment of entire evidence and upon the fact that complainant party was aggressor, offence cannot travel beyond offence under Section 304 Part II IPC. 19. In the case of Gafoor & Ors. v. State of Rajasthan reported in Cr.LR (Raj.) 1983 the Division Bench of this Court gave the following adjudication in paras nos.10 and 18, which reads as under: "10. We have carefully considered the rival submissions made before us. It is a serious question in the instant case as to what was the common object of the unlawful assembly? Was it simple giving of severe thrashing or beating with Pharsas and Lathis? We have carefully considered the rival submissions made before us. It is a serious question in the instant case as to what was the common object of the unlawful assembly? Was it simple giving of severe thrashing or beating with Pharsas and Lathis? So far as spears are concerned, it appears were not used, or the common object was to cause murder of Atar Khan and Hulla? For the determination of this question, relations between the parties are quite significant. Along with the relations, what culminated in the occurrence, cannot also be ignored. Along with relations and the background, in which the occurrence took place, the injuries, which had been inflicted in the occurrence, are also required to be given due consideration. But the first two factors need to be given much more weight and predominantly those factors would give us the clue to the state of mind of the assailant-party. Makbooli (P.W.1) and other witnesses have clearly stated that before this occurrence they had no quarrel with the accused persons. They had love and affection with each other. The accused persons were not inimical or hostile to them and the member of both the parties are the descendants of a commons ancestor. When such were the relations between the members of the two parties, then it is unbelievable that in the background of a trifle incident of stealing, the members of the accused-party, would have formed a common object to kill any member of the victim-party. So looking to the relations and the circumstances, which led to the occurrence, it cannot reasonably be inferred, said and found an unlawful assembly with a common object to kill any members or member of the complainant party. Even the injuries on the person of Atar Khan and Hulla indicate that such was not the common object of the unlawful assembly, as there were only single blow on the heads of both. The other injuries mostly are of limbs and other non-vital parts of the body. On the person of Mulla, there were two grievous injuries caused by blunt object-resulting into fracture of tibia and fibula bonds of the right leg and fracture of nasal bone. There was one lacerated wound on the left parietal occipital region. The other injuries mostly are of limbs and other non-vital parts of the body. On the person of Mulla, there were two grievous injuries caused by blunt object-resulting into fracture of tibia and fibula bonds of the right leg and fracture of nasal bone. There was one lacerated wound on the left parietal occipital region. Besides a fatal blow on the head with sharp weapon, there were two incised wounds, one on the left forearm and the other on the left scapular region, Atar Khan had only one head injury and there were no other injuries on any vital part of the body, although he had eight incised wounds and as a result of incised wound, his ulna bone was also cut. The death of the two had also not be instaneous. From the injuries as well, thus, it can be inferred that the common object of the unlawful assembly was to cause grievous injuries on the person of Atar Khan and Hulla and any one or two members of the unlawful assembly exceeded the common object and inflicted fatal blows on the heads of Atar Khan and Mulla. Still the question is that when the members of the assailant-party were armed with Pharsas and Lathis and intended to open attack with such lethal weapon causing grievous injuries, whether knowledge can be attributed to them that their actions may likely to result in death? In order that the case may fall under the second part of Section 149, IPC, the prosecution is required to establish not only the mere possibility of action resulting into the death, but a probability of that and a definite knowledge on the part of the assailant-party of that probability. 18. In the light of the circumstances considered above we are of the opinion that the common object of the appellants was only to cause grievous hurts and not to kill any one and it also cannot be found that the appellants knew that the offence of murder is likely to be committed. In view of this finding, in our opinion, the convictions of the appellants, other than Rujdar, for the offence under Sect. 302/149, IPC, deserves to be set aside. In view of this finding, in our opinion, the convictions of the appellants, other than Rujdar, for the offence under Sect. 302/149, IPC, deserves to be set aside. So far as the convictions and sentences of Rujdar are concerned for the various offences, they also deserve to be set aside in entirety, as it has been found that he was a member of the unlawful assembly, is not proved beyond all reasonable doubt. 20. The Hon'ble Supreme Court in a catena of judgments held that "intention" should be gathered upon assessment of facts and entire evidence and if intention/motive for commission of offence of murder is absent then it cannot be said that offence under Section 302 IPC is made out. The facts and evidence of particular case is required to be considered independently at the time of adjudication of case. 21. Upon carefully consideration and taking into account the way in which the occurrence has taken place, we are of the opinion that learned trial court has committed an error to hold the accused appellants guilty for offence under Section 302 IPC instead of offence under Section 304 Part II IPC. 22. Consequently, on the basis of above discussions, the instant appeal is partly allowed. The conviction and sentence passed by the learned Addl. Sessions Judge, Dungarpur in Sessions Case No. 36/2010 vide judgment dated 17.4.2013 against the accused appellant Nahar Singh is hereby quashed and set aside to the extent for the offence under Section 302 IPC but he is held guilty for offence under Section 304 Part II IPC and the sentence of life imprisonment is hereby reduced to sentence for seven years rigorous imprisonment with fine of Rs.10,000/- and in default of payment of fine to further undergo one year simple imprisonment. The conviction and sentence for other offences i.e., under Sections 452, 324 and 323/34 IPC are hereby maintained.