JUDGMENT : Mohammad Rafiq, J. These two appeals preferred by accused-appellants namely; Panna Lal and Hari Om @ Patwari are directed against the judgment dated 17.10.2011 whereby the learned Additional Sessions Judge No.2, Bundi has convicted the accused-appellants for offence under Section 302 read with 34 IPC and sentenced each of them to life imprisonment with fine of Rs.10,000, in default whereof, they were to further undergo imprisonment of one year. They were also convicted for offence u/s.341 IPC and each of them was sentenced to simple imprisonment of one month. 2. Shorn of unnecessary details, the brief facts of the case are that a written complaint was submitted to SHO Police Station Keshavrai Patan in M.B.S. Hospital, Kota by one Ram Kunwar S/o Gabur Meena on 11.05.2009 alleging therein that on that day at around 8.30 AM, when he was at his house, Mohan Lal S/o Gopilal was coming from his agriculture field towards his house after taking bath from the handpump in his agriculture field. About 50 mtrs. away from the house of informant, the accused Panna Lal, Dhanna Lal, Hari Om, Raja Ram, Puran Mal, Om Prakash, Hari Om S/o Ram Narayan, Bajrang Lal, Madan Lal, Braj Raj, Ramcharan and Shyam Sundar, who were all armed with lakri, kulharis, gandasi & saria etc. attacked Mohan Lal with an intention to murder him. It was also stated by the informant that his daughter Tasveer was also taking bath on the handpump adjacent to his own house. When she cried for help, the informant rushed towards the place of incident. Sheoji S/o Heera Meena, who was grazing his goats nearby also came rushing there. The accused thereupon ran away towards their house. Informant and Sheoji took care of injured Mohan Lal, who sustained injuries on his head, legs and other parts of the body and blood was oozing from his nostrils and mouth. Soon injured Mohan Lal became unconscious. They took him to his house and wherefrom his brother and other family members took him to Kota Hospital via Keshavrai Patan. However, on the way, Mohan Lal succumbed to the injuries. It is also stated that this incident has been witnessed by Devraj son of the deceased Mohan Lal also, who was in grief at that time and was presently in the village. 3. However, on the way, Mohan Lal succumbed to the injuries. It is also stated that this incident has been witnessed by Devraj son of the deceased Mohan Lal also, who was in grief at that time and was presently in the village. 3. After investigation, chargesheet was against the present two appellants filed for offence u/s.302 & 341 read with 34 IPC. The accused-appellants denied the charges and claimed to be tried. The prosecution examined 20 witnesses in support of its case and exhibited 31 documents. Defence produced 4 witnesses and exhibited 16 documents. The accused in their examination under Section 313 Cr.P.C. alleged false involvement. The learned trial court on conclusion of the trial, convicted and sentenced the accused- appellants in the manner indicated above. Hence these appeals. 4. Shri Suresh Sahni, learned counsel for the accused-appellants has argued that genesis of the incident has been suppressed from the Court inasmuch as complainant-party from the very beginning tried to make false implication of all the family members of the appellants, which is evident from the fact that twelve accused were named in the FIR, whereas charge sheet was filed only against present two. The prosecution case rests entirely on the testimony of Sheoji (PW2), Devraj (PW8) and Tasveer Meena (PW17), but cumulative reading of their statements would make it appear that they, in fact, were not eye witnesses of the incident. Sheoji (PW2) has alleged that he was grazing his cattle in the field of deceased Mohan Lal, who was taking bath on his handpump around 8.30 AM. Thereafter, while Mohan Lal was going towards his house, Panna Lal, Om Prakash, Hariom, Shyam, Brij Mohan and few others attacked him. Accused appellant- Panna Lal, Om (Hariom) and Shyam inflicted blow of lathi on the head of deceased Mohan Lal. Thereafter, Hariom inflicted lakri blow at his back and hands. Brij Mohan inflicted lathi blow on his knees. Shyam also inflicted lathi blow on his knees. Panna Lal also inflicted a lathi blow on his thigh and chest. This witness has further alleged that Tasveer, daughter of Ram Kunwar, who was present there, cried for help and therefore Ram Kunwar came there. Thereafter Devraj also rushed there. This witness has also stated that deceased was taken to Police Station Keshavrai Patan in auto rickshaw, whereas Shri Krishan (PW5) in his statement has stated that deceased was taken in tractor trolley. Thereafter Devraj also rushed there. This witness has also stated that deceased was taken to Police Station Keshavrai Patan in auto rickshaw, whereas Shri Krishan (PW5) in his statement has stated that deceased was taken in tractor trolley. 5. While Devraj (PW8) has claimed himself to be an eye witness, but Sheoji (PW2) not only in examination in chief has stated that he came after he heard the hue and cry of Tasveer, but also in cross examination stated that when they were lifting Mohan Lal in order to take him to the Police Station, Devraj, who was grazing his cattle nearby came there from the side of village. This witness therefore clearly rules out the possibility of Devraj being an eye witness. Sheoji (PW2) was confronted him with his first version (Ex.D1) given to the police on the very next day of incident, but he could not explain why he did not state therein that Tasveer was also an eye witness of the incident and cried for help. In response to the pointed query that the incident could not be seen from behind the trees of Babool and Safeda, he has answered in positive. When he was asked why he did not state in statement under Section 161 Cr.P.C. that Om, Panna Lal and Shyam gave beating to the deceased Mohan Lal by lathis, he stated that he did give such statement to police in Ex.D1, but he could not explain why it was not mentioned therein. In cross examination, he has further stated that Tasveer had come to the handpump of Ram Kunwar to take bath and that house of Ram Kunwar was surrounded by Babool and Safeda trees from all four sides. It was therefore not possible for this witness (Tasveer-PW17) to see the incident. Learned counsel argued that Sheoji (PW2) has thus made lot of improvements upon his original version and has thereby discredited himself as a witness of truth. Learned counsel submitted that supplementary statement of Sheoji (PW2) was taken by the police under Section 161 Cr.P.C., 22 days after the incident only with a view to fill up the lacunaes in the case. Learned counsel submitted that Sheoji in cross examination has admitted having enmity with Panna Lal and, therefore, he cannot be expected to speak the truth. 6. Learned counsel argued that informant-Ram Kunwar was produced as PW4. Learned counsel submitted that Sheoji in cross examination has admitted having enmity with Panna Lal and, therefore, he cannot be expected to speak the truth. 6. Learned counsel argued that informant-Ram Kunwar was produced as PW4. He has not supported the case of the prosecution and was declared hostile. He has stated that when he came out of the house on hearing hue and cry of his daughter Tasveer, he found deceased lying near the nala, but did not see any accused there. In response to a pointed query, this witness stated that the written report was not submitted by him in his handwriting. It was, in fact, authored by the police people themselves. 7. It is argued that Devraj (PW8), son of the deceased has stated that Tasveer daughter of Ram Kunwar was brooming the land around handpump of Ram Kunwar. He has stated that their buffaloes had entered the agricultural field of Panna Lal two and half months ago. At that time, his wife was harvesting the crop of wheat. She thereupon started abusing. His father Mohan Lal objected to the same. This witness in cross examination has stated that his father went to the handpump of their agriculture land for taking bath for the first time. Learned counsel submitted that Devraj resiled from his previous version given to the police because when he was subjected to cross examination, he could not explain the deviations from the police statement (Ex.D6). He could not give explanation why did he name only appellants as the assailants. 8. Learned counsel for the accused-appellants submitted that Jagannath (PW11) has not supported the prosecution case and has been declared hostile, but he has probablised the defence of the accused- appellants. He has stated that deceased Mohan Lal and accused-appellant Panna Lal were engaged in a scuffle. Mohan Lal was having lakri in his hand. Panna Lal tried to free himself from the clutches of Mohan Lal and in that process, he gave a forceful push to deceased Mohan Lal, who fell on the stones. Mohan Lal got up and resumed the fight with Panna, but then, he again fell on the stones. It is in this process that he received multiple injuries. This witness has stated that Mohan Lal inflicted a blow by lakri on Panna Lal. 9. Mohan Lal got up and resumed the fight with Panna, but then, he again fell on the stones. It is in this process that he received multiple injuries. This witness has stated that Mohan Lal inflicted a blow by lakri on Panna Lal. 9. Shri Suresh Sahni, learned counsel further argued that Tasveer Meena (PW17), the daughter of informant Ram Kunwar, apart from the accused-appellants, has also named Ram Charan, Shyam Sundar and Brijraj as the assailants, who allegedly gave beatings to the deceased. Surprisingly, Tasveer Meena was claimed to be eye witness in the written report/FIR. However, her statement under Section 161 Cr.P.C. was recorded by the police as late as on 1.6.2009 i.e. three weeks after the date of incident. Raja Ram (PW18), the Investigating Officer has made a false statement before the Court by stating that he could not record statement of Tasveer Meena earlier because when on several occasions between 11.5.09 to 25.5.09 he went to village Chandanheli, Tasveer was not available and that she could be found only on 1.6.2009. He searched for her, but could not locate and a note in the case diary to this effect was recorded on 23.5.2009 by him. On the other hand, Tasveer Meena in her cross examination has categorically stated that she did not go anywhere during 15-20 days after the incident and stayed in her house only. Though police kept visiting their house, but did not record her statement. Relying on the judgment of Supreme Court in Shahid Khan vs. State of Rajasthan, (2016) 4 SCC 96 , learned counsel for the accused-appellants argued that even the delay of three days in recording the statement under Section 161 Cr.P.C. in that case was held to be fatal to the prosecution case. 10. Learned counsel submitted that the conduct of Raja Ram (PW18), Investigating Officer in this case leave much to be desired, who concealed the injury report of accused Panna Lal from the Court, whereas he got Panna Lal medically examined in OPD, receipt of which is Ex.D14. In cross examination, this witness has stated that when Panna Lal was arrested, he did not have any injury on his person and that he did not get Panna Lal examined, but then in last sentence, he admitted that his medical examination was got conducted, but he was not found to have sustained any injury. In cross examination, this witness has stated that when Panna Lal was arrested, he did not have any injury on his person and that he did not get Panna Lal examined, but then in last sentence, he admitted that his medical examination was got conducted, but he was not found to have sustained any injury. When confronted with the arrest memo of Panna Lal, this witness admitted that Panna Lal had a swelling on his right cheek near chin and scratch on left shoulder. The injury report/MLR of Panna Lal was Ex.D9A prepared by Dr. K.B. Sharma (DW3), which clearly proves that this witness himself got Panna Lal medically examined. 11. It is argued that copy of the FIR was sent to the Magistrate with delay of one day, whereas Raja Ram (PW18) in his statement admitted that distance from the Police Station of the Court and the residence of the Magistrate was approximately 1 km, yet the copy of the FIR (Ex.P25) was produced before the Magistrate not on the evening on the same day, but in the morning of the following day. Raja Ram (PW18) has also admitted that he did not find any wet clothes of the deceased at the place of incident, nor did he found any trail of the blood from the place of incident to residence of the deceased, which is situated only about 200 steps away. Raja Ram (PW18), Investigating Officer was also highly negligent in conducting investigation, which is evident from the fact that he did not record the statement of Doctor, who gave information about the incident on the Police Station. 12. Shri Suresh Sahni, learned counsel for the accused-appellants argued that site plan (Ex.P7) was inadmissible evidence, being hit by provisions of Section 162 Cr.P.C. as Raja Ram Meena admitted that he prepared the site plan on the basis of information given by Ram Kunwar (PW4), which violated the provisions of Section 7 of the Evidence Act. The same would fall within the purview of previous statement and would be hit by the provisions of Section 162 Cr.P.C. 13. Referring to the FSL report (Ex.P28), learned counsel for the accused-appellants submitted that no blood could be deducted in the soil lifted from the place of incident, which would mean that the incident has not taken place wherefrom the soil was lifted, but it happened elsewhere. Referring to the FSL report (Ex.P28), learned counsel for the accused-appellants submitted that no blood could be deducted in the soil lifted from the place of incident, which would mean that the incident has not taken place wherefrom the soil was lifted, but it happened elsewhere. The genesis of the incident has thus been suppressed from the Court. Learned counsel argued that the lathi recovered at the instance of accused appellant Hariom was found negative for the presence of blood, much less human blood. No independent witness was associated with the memo of information. Besides, such memo in the case of Hariom would have no meaning because he was arrested on 1.8.2009 i.e. after about 50 days from the date of incident. 14. Learned counsel argued that because Hariom has proved the fact that he was not present at the place and time of occurrence and that he was attending his classes of B.Ed. course, the defence has produced Deshraj (DW4), Secretary of Lord Krishna College, Hamidpur, Tehsil Behror, District Alwar. This witness has produced the attendance register of the year 2009 (Ex.D15), which would show that accused was present in the college on 11th and 12th May, 2009. The attendance of the students was therein recorded in the forenoon as well as afternoon session. Learned counsel relied on the judgment of Rajesh Kumar vs. Dharamvir & Ors. and State of Haryana vs. Dharamvir & Ors., (1997) 4 SCC 496 and has argued that in para 23 of the report it was held that plea of alibi must be proved with absolute certainty so as to completely exclude the presence of the person concerned at the time when and the place where the incident took place. In that case, the defence witness who claimed to be an advocate of the accused in a pending case, stated that at the relevant time, the accused was in his office. The testimony of such witness was held not to have substantiated the plea of alibi because no contemporaneous document was produced in support of the statement. In the present case, however, the plea of alibi has been fully proved by the accused by producing not only the attendance register, but also the Secretary of the Lord Krishna College, Hamidpur, Tehsil Behror, District Alwar. 15. Learned counsel also relied on the judgment of Supreme Court in Ramanlal & Anr. In the present case, however, the plea of alibi has been fully proved by the accused by producing not only the attendance register, but also the Secretary of the Lord Krishna College, Hamidpur, Tehsil Behror, District Alwar. 15. Learned counsel also relied on the judgment of Supreme Court in Ramanlal & Anr. vs. State of Haryana and Bhagat Singh & Anr. vs. State of Haryana, (2015) 11 SCC 1 wherein it was held that defence version re- genesis of the incident, deserves to be rejected where no evidence led by the defence. Learned counsel in this connection also relied on judgment of Supreme Court in Buta Singh vs. State of Punjab, (1991) 2 SCC 612 wherein it was held that defence case based on objective evidence and appearing to be more probable. If no explanation is advanced by prosecution, the accused would be entitled to benefit of doubt. Learned counsel relying on the judgment in Ram Swarup & Ors. vs. State of Haryana and Hari Ram & Ors. vs. State of Haryana, 1993 Supp (4) SCC 344 has argued that the real onus is on the prosecution party to prove its case beyond reasonable doubts and the accused has only to raise a doubt in the mind of the court or to satisfy the court that the defence version disclosed by the accused was a probable version of the occurrence. It is therefore prayed that the appeal be allowed and the impugned judgment be set aside. 16. Alternatively, learned counsel for the accused- appellants has argued that the incident in the present case has taken place at the spur of the moment. The prosecution has concealed the fact that accused-appellant Panna Lal too received injuries in the same incident. The allegation is made against both accused-appellants and, therefore, it cannot be ascertained as to who gave which blow and on which part of the body of the deceased. The deceased suffered two fractures, but no witness has come forward to state as to who was responsible for them. The conviction of the accused-appellant is therefore liable to be altered from Section 302 IPC to one Section 304 Part-II read with 34 IPC. Learned counsel has in support of this argument placed reliance on the judgment of Supreme Court in Badal Murmu & Ors. vs. State of West Bengal, (2014) 3 SCC 366 . 17. The conviction of the accused-appellant is therefore liable to be altered from Section 302 IPC to one Section 304 Part-II read with 34 IPC. Learned counsel has in support of this argument placed reliance on the judgment of Supreme Court in Badal Murmu & Ors. vs. State of West Bengal, (2014) 3 SCC 366 . 17. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeals and submitted that the testimony of Sheoji (PW2), Devraj (PW8) and Tasveer Meena (PW17) inspires full confidence. She has supported the impugned judgement and argued that the learned trial court was perfectly justified in convicting the accused-appellants, whose complicity in the crime has been proved beyond reasonable doubt. Learned Public Prosecutor referred to the statement of Sheoji (PW2), Devraj (PW8) and Tasveer Meena (PW17) and argued that all of them were the eye witnesses of the incident, whose testimony has rightly been relied by the learned trial court. It is submitted that the FIR was registered at 5.00 PM on 11th May, 2009, which was registered late in the evening and thereafter statement of Sheoji (PW2) was recorded by the police under Section 161 Cr.P.C. very next day. It may not have been possible to record the statement u/s.161 Cr.P.C. on the same day for variety of reasons. His statement finds corroboration from the statement of Ramchandra (PW7). The site plan also proves corroboration to his testimony. FSL report clearly shows that lathi recovered at the instance of accused Panna lal is found to contain human blood of `B' group and the blood of the same group was found on the clothes of the deceased. 18. Learned Public Prosecutor argued that Raja Ram (DW2) has also stated that fact about Hariom attending the classes in Lord Krishna College, Hamidpur, Tehsil Behror, District Alwar was not proved in his investigation. It is argued that no suggestion of alibi of accused was given to first Investigating Officer Raja Ram Meena (PW18) inasmuch as no question was put to him in the cross examination thereabout. Bhupendra Singh (PW16) has also in the cross examination denied the suggestion that accused told him that he was student of Lord Krishna College, Hamidpur, Tehsil Behror, District Alwar and was therefore not present at the place of occurrence. Bhupendra Singh (PW16) has also in the cross examination denied the suggestion that accused told him that he was student of Lord Krishna College, Hamidpur, Tehsil Behror, District Alwar and was therefore not present at the place of occurrence. Statement of Deshraj (DW4), Secretary of Lord Krishna College, Hamidpur, Tehsil Behror, District Alwar where the accused was allegedly studying raises doubt about the genuineness of the attendance register. He admitted that entries in the attendance register from October, 2008 to July, 2009 do not contain initials of Principal on day to day basis and that this used to be done at the end of every month. No value therefore could be attached to the copy of the attendance register. Learned Public Prosecutor reiterated all other arguments, which were advanced before the learned trial court and also extensively referred to the statement of prosecution witnesses. It is therefore prayed that the appeals be dismissed. 19. We have given our anxious consideration to the rival submissions and perused the material on record. 20. It is no doubt true that the informant/ complainant in the first instance named 12 accused persons in the FIR (written report), whereas the police on thorough investigation filed challan only against present two accused, but that only highlights fairness of investigation. The learned trial court has eventually convicted these two accused on being satisfied about their rule by applying the standard beyond reasonable doubt. Sheoji (PW2) has attributed head injury of Mohan Lal to Panna Lal, Om (Hariom) and Shyam, but then he stated that Panna Lal inflicted a lathi blow on the head of deceased. He has also stated that Tasveer D/o Ram Kunwar was also present at the place of occurrence. She cried for help whereupon Ram Kunwar came there and then Devraj also reached there. Tasveer, apart from Devraj has been named as witness of the incident in the FIR itself. While her father Ram Kunwar has not supported the prosecution case and was declared hostile, but Tasveer stood the ground. The statement of Sheoji (PW2) was recorded on the very next day of the incident. He remained unshaken in the cross examination. His statement in Court is in tune with his police statement. While her father Ram Kunwar has not supported the prosecution case and was declared hostile, but Tasveer stood the ground. The statement of Sheoji (PW2) was recorded on the very next day of the incident. He remained unshaken in the cross examination. His statement in Court is in tune with his police statement. Even Ram Kunwar in his statement has stated that seeing the incident, her daughter Tasveer raised hue and cry that Dadji Mohanji was hit by the accused, but then this witness has chosen not to support the case of the prosecution beyond that. 21. Ram Pyari (PW6), daughter of the deceased has stated that about one and half months ago, Mohan Lal had gone to his agriculture field with his buffaloes. The buffaloes entered the agriculture field of Panna Lal. Thereupon females of his family started abusing. The testimony of this witness clearly shows that Panna Lal and deceased Mohan Lal had quarrelled with each other even on earlier occasion. Devraj (PW8) has also corroborated this fact that when their buffaloes entered the agriculture field of Panna Lal, his wife started abusing them. Panna Lal went inside his house and came out with his lakri and inflicted a blow on the legs of his father. The defence has tried to assail the credibility of all these eye witnesses. For Sheoji (PW2) and Tasveer Meena (PW17), it is argued that they both excludes the presence of each other. Sheoji (PW2) also excludes presence of Devraj at the place of occurrence because in cross examination he has stated that when they lifted Mohan Lal in injured condition from the place of occurrence, Devraj (PW8) was seen coming from the side of the village with his cattle. As far as Sheoji's concerned, the first version given by him to the police in Ex.D2 was that he was grazing cattle in the field of Mohan Lal, who at the time had come there to take bath on the handpump, which was also situated in his own field. When accused attacked Mohan Lal, Tasveer Meena (PW17) raised hue and cry. On hearing this, both Ram Kunwar and Sheoji came there. 22. When accused attacked Mohan Lal, Tasveer Meena (PW17) raised hue and cry. On hearing this, both Ram Kunwar and Sheoji came there. 22. The fact that police statement of Sheoji was recorded on the very next day, cannot be said to be with any delay given the fact that FIR was registered in evening of 11th May, 2009 and police might have been busy in the proceedings of postmortem and other initial stages of investigation. Sheoji in that very first version to the police had specifically attributed the head injuries of the deceased to Panna Lal and Hariom both. Although in earlier part of the statement, he alleged involvement of many other accused, but when it came to specific allegations, in the Court statement again, Sheoji has alleged that Panna Lal inflicted a lathi blow on the head of deceased Mohan Lal and Hariom inflicted a lakri blow on his head. Then he has attributed subsidiary role to the accused Brij Mohan and Shyam, of causing injuries on the knees of the injured. He again stated that Panna Lal also caused injuries on the thighs and chest of the deceased. Even if, therefore, we were not to rely on the statement of Tasveer Meena (PW17) daughter of Ram Kunwar, which has been recorded with delay of 21 days and statement of Devraj (PW8), which has been recorded with delay of 15 days, the testimony of Sheoji, which finds corroboration from the postmortem report should be enough to sustain the conviction of the accused-appellant as the deceased received 9 injuries. 23. Devraj (PW8) has stated that he was at his house and her mother asked her to call her father, who had gone to the field in order to take bath at the handpump installed in their agriculture field. While he was proceeding towards the field, he saw accused Panna Lal and Hariom Patwari beating his father (Mohan Lal) by lathis. In the earlier part of the statement, he has stated that he was at his house, but in later part, he has stated that he was in the agriculture field. If we critically examine the statement of Sheoji (PW2), he has stated that initially when Tasveer raised hue and cry, it was only Ram Kunwar and he (this witness himself), reached there and saw the incident, but Devraj came later on. If we critically examine the statement of Sheoji (PW2), he has stated that initially when Tasveer raised hue and cry, it was only Ram Kunwar and he (this witness himself), reached there and saw the incident, but Devraj came later on. Sheoji, however, admits the presence of Tasveer from the beginning of the incident and in cross examination, he states that when they were going with the injured to the Police Station/Hospital, at that time Devraj was seen coming with cattle from the side of village. This part of the statement of Sheoji, when read along with own statement of Devraj where he stated that before going to the place of incident, he was at the agriculture field, proves that Devraj reached at the place of incident immediately after his father had been given beating, but his presence from the inception of the incident, to describe him as an eye witness may not be free from doubt. 24. Tasveer (PW17), the young girl who was claimed to be an eye witness in the written report itself, has supported the case of the prosecution even when her father has been turned hostile. She has stated that Panna Lal, Dhanna Lal, Hari Om, Raja Ram, Puran Mal, Om Prakash, Hari Om S/o Ram Narayan, Bajrang Lal, Madan Lal, Braj Raj, Ramcharan and Shyam Sundar were beating the deceased Mohan Lal by lathi and that it was on her making hue and cry that her father Ram Kunwar and Sheoji came rushing there. She watched the incident from some distance. Tasveer, despite delay in recording her statement before police has to be accepted as an eye witness. The delay in recording police statement may be fatal in a given case, but in the facts of the present case when Tasveer was the one, who had seen the incident from close distance and was first one to raise hue and cry and it was thereupon that her father Ram Kunwar and Sheoji came to the rescue of Mohan Lal, she must be acknowledged as an eye witness. Even her father Ram Kunwar, who has otherwise not supported the prosecution case, has stated that on seeing the incident of beating of Mohan Lal, his daughter Tasveer immediately raised hue and cry. He has thus in part supported the case of prosecution by proving the presence of Tasveer on the place of occurrence from inception. Even her father Ram Kunwar, who has otherwise not supported the prosecution case, has stated that on seeing the incident of beating of Mohan Lal, his daughter Tasveer immediately raised hue and cry. He has thus in part supported the case of prosecution by proving the presence of Tasveer on the place of occurrence from inception. Despite lapse of the Investigating Officer Raja Ram (PW17) in not immediately recording the statement of Tasveer, it cannot be said that she was a planted witness. 25. We are not inclined to uphold the contention that Hariom was not present at the place of incident and was attending the classes of B.Ed. in Lord Krishna College, Hamidpur, Tehsil Behror, District Alwar. The copy of attendance register (Ex.D15) clearly shows that this register is not counter signed by the Principal or any other competent officer against the attendance of each day. Deshraj (PW4) in his cross examination clearly admitted that the relevant page of the attendance register does not contain the initial/signature of the Principal of the said college. He has also stated that he did not recognise the students by face. The attendance register is shown to have been signed by the Principal, who has not been produced, but considering that no signatures/initials were made for attendance on every day basis by the Principal and that the eye witnesses are showing the presence of accused Hari Om, being consistent eye witnesses have to be preferred. The plea of alibi, therefore, cannot be held to be proved. Learned counsel pointed out many lacunaes left by the Investigating Officer Raja Ram (PW18) including injury report of the accused Panna Lal having not been produced on record, but evidence has to be looked into in entirely. 26. The postmortem report has been proved by Dr. Vishwa Deepak (PW14). His testimony read with postmortem report (Ex.P19) indicates that first injury received by deceased Mohan Lal was lacerated wound in the size of 2½ x 1 cm on left pinna upper part, second injury was a diffused swelling on left fronto parieto-temporal region of head, third injury was diffused swelling on right frontal region of head, resulting into blackening of both his eyes. Fourth injury was bruise in the size of 12x2 cm obliquely on left scapular region chest. Fourth injury was bruise in the size of 12x2 cm obliquely on left scapular region chest. Fifth injury was also bruise and diffused swelling in the size of 12 x 13 cm on left lumbar region back laterally. Sixth injury was contused swelling in the size of 14x8 cm on the right thigh lower ½ laterally. Seventh injury was again a bruise in the size of 2x2 cm on right arm upper 1/3 anteriorly. Eighth injury was an abrasion in the size of 3 x 1½ cm on right knee lower part and ninth injury was abrasion in the size of 1½ x 1 cm on the left lower part of knee. The cause of death has been opined to be coma, as a result of antemortem head injuries sufficient to cause death in ordinary course of nature. Dr. Vishwa Deepak (PW14) has in his statement stated that had timely treatment been provided to the deceased and had he been operated upon urgently, his life could be saved. The specific allegation has been made on both the accused with regard to head injuries. 27. In the cited case of Badal Murmu, supra there were eleven assailants, all of them were convicted by the trial court for offence under Section 302 read with 149 IPC. Their appeal against the judgment of conviction was dismissed by the High Court. The Supreme Court in those facts noted that there were 14 injuries on the person of deceased and most of them were bruises and abrasions. These injuries include two fractures and haematoma under the scalp. The Doctor has stated that all the injuries led to death of the deceased. It was, however, not known as to which was the fatal injury. Moreover, none of the eye witnesses stated as to who caused which injury. No individual role was assigned to appellants. The eye witnesses have made omnibus statements that appellants assaulted the deceased with lathis. It is in that fact situation that Supreme Court eventually convicted the accused-appellants for offence under Section 304 Part-II read with Section 149 IPC. The facts in the present case are different than the facts obtaining in the cited judgment of Supreme Court in Badal Murmu, supra. It is in that fact situation that Supreme Court eventually convicted the accused-appellants for offence under Section 304 Part-II read with Section 149 IPC. The facts in the present case are different than the facts obtaining in the cited judgment of Supreme Court in Badal Murmu, supra. Herein, the deceased sustained nine injuries, out of which two injuries were on head; first being diffused swelling on left fronto parieto-temporal region of head and another being diffused swelling on right frontal region of head resulting into blackening of both his eyes. The cause of death was opined to be these head injuries, which according to the Medical Board were sufficient in the ordinary course of nature to cause death. Here in the present case, although originally twelve accused were named, but the police after thorough investigation, filed challan against only two accused, who are the present appellants. The incident appears to have taken place on a trivial dispute in heat of passion upon a sudden quarrel attracting exception (iv) of Section 300 of the Indian Penal Code. The offence of the accused-appellants would therefore fall within the purview of culpable homicide not amounting to murder. There being two lathi blows, one after another, and when the accused- appellants chose to inflict lathi blows with full force on the head of Mohan Lal, by which his death was caused, followed by multiple injuries by repeated blows on other parts of his body, it must be held that the accused shared a common intention to do the act with the intention of causing death or causing such bodily injury, which they know was likely to cause death. Offence of accused-appellants would therefore fall under Part-I of Section 304 IPC. 28. The appeals are therefore partly allowed. The conviction of the accused-appellants under Section 302 read with 34 IPC is altered to one under Section 304 Part-I IPC and each of them are sentenced to undergo rigorous imprisonment of ten years with a fine of Rs.10,000 each. In default of payment of fine, the accused-appellants shall further undergo imprisonment of one year. Accused-appellant-Panna Lal was arrested on 13.05.2009 and he was on bail since 21.11.2013, therefore, he shall be lodged in the jail for completing the remaining sentence. 29. In default of payment of fine, the accused-appellants shall further undergo imprisonment of one year. Accused-appellant-Panna Lal was arrested on 13.05.2009 and he was on bail since 21.11.2013, therefore, he shall be lodged in the jail for completing the remaining sentence. 29. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.