JUDGMENT : Gopal Krishan Vyas, J. 1. The D.B. Cr. Appeal No. 10066/2015 has been preferred by the accused appellant Rakesh @ Suchla under Section 374 Cr.P.C. against the judgment dated 23.9.2015 passed by the learned Addl. District & Sessions Judge No. 4, Jodhpur Metropolitan, Jodhpur in Sessions Case No. 51/2012 whereby the learned trial court convicted the accused appellant for the offence under Section 302, 148 and 341 IPC and passed the following sentence: Under Section 302 IPC Life imprisonment with fine of Rs. 2,000/- and in default of payment of fine to further undergo one month imprisonment. Under Section 148 IPC Three years RI with fine of Rs. 500/- and in default of payment of fine to further undergo 15 days imprisonment Under Section 341 IPC one month RI with fine of Rs. 500/- and in default of payment of fine to further undergo seven days imprisonment All the sentences were ordered to run concurrently. 2. The D.B. Cr. Appeal No. 960/2015 has been preferred by the accused appellants Beenja Ram @ Dhepiya, Kalu Ram, Khema Ram, Anuda @ Annu and Bhakniya @ Santosh challenging the same judgment of conviction and sentence dated 23.9.2015 passed by the learned Addl. District & Sessions Judge No. 4, Jodhpur Metropolitan, Jodhpur in Sessions Case No. 51/2012 whereby the accused appellants were convicted for the offences under Section 148, 323 and 341 IPC and following sentence was passed by the learned trial court: Under Section 148 IPC Three years rigorous imprisonment with fine of Rs. 500/- and in default of payment of fine to further undergo one month imprisonment. Under Section 323 IPC one years rigorous imprisonment with fine of Rs. 1000/- and in default of payment of fine to further undergo 15 days imprisonment. Under Section 341 IPC one month rigorous imprisonment with fine of Rs. 500/- and in default of payment of fine to further undergo seven days imprisonment. [all the sentences were ordered to run concurrently] 3. Both the appeals are arising out from common judgment dated 23.9.2015, therefore, by this common judgment, we are deciding both the appeals. 4. As per facts of the case, the complainant Shanker Das (PW-15), father of the deceased Jaiky gave his statement (Ex. [all the sentences were ordered to run concurrently] 3. Both the appeals are arising out from common judgment dated 23.9.2015, therefore, by this common judgment, we are deciding both the appeals. 4. As per facts of the case, the complainant Shanker Das (PW-15), father of the deceased Jaiky gave his statement (Ex. P/34) to the Sub Inspector, Police Station, Basni, Jodhpur at 2.30 am at MDM, Hospital, Jodhpur on 9.9.2009, in which following allegations were levelled by him, against the appellants which reads as under:- **ipkZ c;ku Jh ‘kadjnkl S/o pj.knkl tkfr gfjtu mez 45 lky is’kk etnwjh fuoklh Hkxoku egkohj dkWyksuh] gM~Mh fey ckluh tks/kiqjA fnukad 09-09-09 le; % 2-30 am LFkku % MDM tks/kiqj us iqfyl nfj;kr dj c;ku fn;k fd vkt fnukad 09-09-09 ds oDr 1-30 am ij esjk yM+dk tSdh esjs ?kj ls dkywjke ds yM+dksa }kjk iwoZ esa xkyh xyksp djus ls mudks vksyck nsus tk jgk Fkk rc jkLrs esa dkyw jke ds ?kj ds lkeus <sih;ka] lqpyk] HkduS;k o [ksek feys ftuds gkFk esa ydfM+;k¡ o lqapyk ds gkFk esa gFkkSM+k FkkA mDr pkjksa us tSdh ds lkFk ekjihV dh rFkk lqpyk us tSdh ds flj esa gFkkSM+s dh pksV ekjhA tSdh }kjk fpYkkus ij eSa] joh gal] lquhy] jkepanz o ‘kkarh] fiUVq NqM+okus x;s rks mu yksxksa ds vykok dkywjke] dkUrk] ckblk] xqfM+;k] vuqM+k] dj.k o deyk us Hkh gekjs lkFk Fkkiksa] eqDdksa ls o ykfB;ksa ls ekjihV dh] ftlls gekjs pksVsa vkbZaA tSdh ds flj esa T;knk pksV yxus ls csgks’kh gkyr esa btky gsrq VSDlh ls ysdj M.D.M. vLirky vk;sA mDr ipkZ c;ku izkFkhZ ds dgs vuqlkj fy[ks x;sA i< dj lquk;s] lgh gksuk eku gLrk{kj fd;sA^^ 5. Upon aforesaid verbal statement, FIR No. 229 dated 9.9.2009 (Ex. P/35) was registered at Police Station, Basni, District Jodhpur for the offences under Sections 307, 341, 323 and 1543 IPC and investigation was commenced by Narayan Singh, Sub-Inspector of the Police Station, Basani. 6. During investigation, injured Jaiky died, therefore, the charge-sheet was filed against the accused appellants under Section 147, 148, 149, 302, 323 and 341 IPC in the court of Judicial Magistrate No. 4, Jodhpur from where case was committed to the court of Sessions Judge, Jodhpur for trial. 7. The learned Sessions Judge, Jodhpur transferred the case for trial to the court of Addl. Sessions Judge No. 4, Jodhpur Metropolitan, Jodhpur. 7. The learned Sessions Judge, Jodhpur transferred the case for trial to the court of Addl. Sessions Judge No. 4, Jodhpur Metropolitan, Jodhpur. Court commenced the trial and after providing an opportunity of hearing to the accused appellants, framed charge against the accused appellant Rakesh @ Suchla for the offences under Sections 147, 148, 323, 341 and 302 IPC and against the accused appellants Beenja Ram, Kalu Ram, Khema Ram, Anuda, Bhakaniya and Karan for the offences under Section 147, 148, 323, 341 and 302/149 IPC. During pendency of trial accused appellant Karan died. 8. In the trial, statements of 17 prosecution witnesses were recorded and 34 documents were exhibited from the prosecution side. After recording evidence of prosecution, statement of all the accused appellants were recorded under Section 313 Cr.P.C. in which they denied the allegations made by the prosecution witnesses and said that they are innocent. In defence, statement of DW-1 Om Prakash were recorded and thereafter, final arguments were heard by the learned trial court. 9. The learned trial court vide judgment dated 23.9.2015 passed in Sessions Case No. 51/2012 convicted the accused appellant Rakesh @ Suchla for the offence under Section 302, 148 and 341 IPC and passed the aforesaid sentence, and acquitted the accused appellant Beenja Ram @ Dhepiya, Kalu Ram, Khema Ram, Anuda @ Annu and Bhakniya @ Santosh from the charge under Section 302/149 IPC convicted them for the offence under Section 148, 323 and 341 IPC and passed the sentence aforesaid. 10. At the threshold learned counsel for the appellants frankly submits that accused appellants are not challenging the incident, but submits that finding of guilt recorded under Section 302 IPC against the accused appellant Rakesh @ Suchla is totally erroneous because upon assessment of evidence the case of the accused appellant Rakesh @ Suchla would fall within exception (4) of Section 300 IPC, therefore, it is a case of culpable homicide not amounting to murder. 11. Learned counsel for the accused appellants argued that as per FIR itself the deceased Jaiky went to the house of accused Kalu Ram alongwith other persons in the mid-night at 1.30 am to make complaint with regard to previous incident. 11. Learned counsel for the accused appellants argued that as per FIR itself the deceased Jaiky went to the house of accused Kalu Ram alongwith other persons in the mid-night at 1.30 am to make complaint with regard to previous incident. As per evidence, there is no allegation is levelled against the accused appellants that they were aggressor, more so, all the accused appellants were in their house and in the mid-night deceased as well as other persons came to the house of accused appellants for quarrel, therefore, it is obvious that accused appellants were not aggressor party. The injury which is said to be cause of death is attributed to the accused appellant Rakesh @ Suchla, but as per facts and specific allegations made in the FIR itself it is obvious that accused appellant Rakesh @ Suchla was not having any intention to commit murder of the deceased. The deceased himself came to the house of the accused appellants for fighting with them, at that time due to sudden provocation and heat for defence the head of the deceased was hit with the help of hammer by the accused appellant Rakesh @ Suchla, therefore, it cannot be said that his act falls under the category of murder punishable under Section 302 IPC. 12. The learned counsel for the appellants submits that the weapon which is alleged to be used for commission of offence was hammer and admittedly, the accused appellant Rakesh @ Suchla is worker and used to keep hammer in his house to do manual labour. On the basis of above arguments, it cannot be said that any preparation was made by the appellant to commit murder of deceased Jaiky. All the witnesses examined as witness by the prosecution are interested witnesses, therefore, upon the settled principle of law the testimony of interested witnesses is required to be dealt with very carefully and if they are interested witnesses then obliviously it is necessary to consider the evidence objectively and if contradictions are in existence in the testimony of statement then the benefit should be given to the accused while granting benefit of doubt. 13. 13. The learned counsel for the accused appellants submits that appellants are not challenging the incident, but all the facts and evidence loudly speaks that there was no pre-meditation or pre-planning to commit murder, more so, the incident took place in spur of moment upon sudden provocation of the complainant party, which is obvious from the fact that occurrence took place in front of house of the accused appellant, therefore, the finding of guilt for conviction under Section 302 IPC against the accused appellant Rakesh @ Suchla may kindly be set aside and it may be altered to the offence under Section 304 Part I IPC. It is further argued that as per finding of the learned trial court there is no allegation against other appellants for inflicting any injury to the deceased, therefore, they were acquitted from the charge levelled against them under Section 302/149 IPC but convicted for the offence under Section 148, 323 and 341 IPC. Therefore, looking to the nature of the incident, their sentence may be reduced to already undergone or they may be given benefit of probation. 14. In support of his arguments, the learned counsel for the accused appellants invited our attention towards the judgment of the Hon'ble Supreme Court delivered in the case of Ramesh Kumar @ Toni V. State of Haryana reported in AIR 2009 SC 2447 and Gurmukh Singh v. State of Haryana reported in (2009) 15 SCC 635 . 15. Per contra, learned Public Prosecutor vehemently submits that it is a case in which injuries were inflicted by accused appellant Rakesh @ Suchla upon the head of deceased, that too, by hammer and admittedly, as per statement of PW-12 Dr. M.P. Joshi, the said injury was sufficient to cause of death, therefore, if the accused appellants are not challenging the incident, then obviously, the injuries found upon the body of the deceased are required to be taken into consideration so as to arrive with the conclusion that the learned trial court has rightly held accused appellant Rakesh @ Suchla guilty for offence under Section 302 IPC. 16. 16. Learned Public Prosecutor submits that the deceased Jaiky @ Jeetu was only 22 years old and he died due to injuries inflicted upon his head by the accused appellant Rakesh @ Suchla, which is not dispute and before incident some quarrel took place between the parties, therefore, it cannot be said that any error has been committed by the learned trial court so as to hold accused appellant Rakesh @ Suchla guilty for the offence under Section 302, 148 and 341 IPC and accused appellants Beenja Ram @ Dhepiya, Kalu Ram, Khema Ram, Anuda @ Annu and Bhakniya @ Santosh guilty for the offence under Sections 148, 323 and 341 IPC. Therefore, both these appeals may kindly be dismissed. 17. After heard learned counsel for the parties, it emerges from the arguments and evidence on record that the place of incident is in front of the house of the accused appellants. It is also undisputed fact arising out from the entire evidence that incident took place in the night at 1.30 am when deceased Jaiky and complainant Shanker Das and other persons went to the house of Kalu Ram to give complaint where occurrence took place. It is also undisputed fact arising out from the entire evidence that incident took place in the night at 1.30 am when deceased Jaiky and complainant Shanker Das and other persons went to the house of Kalu Ram to give complaint where occurrence took place. PW-3 Ram Chandra gave the following statement before the court, which reads as under:- **13&14 eghus igys dh ckr gS] eSa vius cguksbZ ‘kadjnkl ds ?kj feyus vk, Fks ml le; esjh ekrk esjs lkFk FkhA ml fnu ‘kke dks esjs Hkkuth taokbZ jfo gal o dkywjke ds yM+ds lqpyk ds vkil esa cksypky gqbZ Fkh] jkf= dks yxHkx Ms<+ cts okfil vk,A dkywjke gfjtu ds ifjokj okys vk, vkSj ;s yksx xkyh xykSp djus yxs] rc esjk cguksbZ ‘kadjnkl Hkk.kts tSdh o jfo gal rhuksa dkywjke ds ?kj vksyEck nsus ds fy, x,A ogka ij tksj&tksj ls fpYykus dh vkokt lqudj eSa esjh ekrk ‘kkafr o lqfuy dkywjke ds ?kj dh vksj x,A rks dkywjke ds ?kj ds ckgj dkywjke] lqpykjke] tsfi;k] e[kfu;k] [ksek] dj.k] vuq ;s yksx ykfB;ksa ds lkFk jfo] ‘kadjnkl Hkk.kts tSdh ds lkFk ekjihV dj jgs FksA lqpyk us gFkksM+s ds lj ij tSdh ds ekjs ftlls tSdh ogha ij fxj x;k ftlls tSdh dk lj QV x;k vkSj og ygwyqgku gks x;kA ekjihV djrs le; geus chp&cpko fd;k rks bu yksxksa us gekjs lkFk Hkh ekjihV dhA tSdh gks ge csgks’kh fLFkfr esa ,eMh,e ysdj x,A ‘kadjnkl ds lj esa dkQh pksVsa vkbZ] ckn esa tSdh fpfdRlky; esa xEHkhj pksV ds dkj.k mldh e`R;q gks xbZA esjs Hkh pksVsa vkbZ ftldk eSaus mipkj o ijh{k.k djok;k FkkA esjk pksV izfrosnu izn’kZ ih&12 gS bl ij , ls ch esjs gLrk{kj gSaA** 18. PW-4 Smt. Shanti, PW-5 Ravi injured eye witness and PW-15 Shanker Das categorically reiterated the same story, so also, allegations levelled in the FIR (Ex. P/34). 19. In view of the fact that accused appellants were in their house and at 1.30 am deceased alongwith his father and one Ravi Das went to the house of the accused appellants to give complaint with regard to some quarrel took place in between them, loudly speaks that accused appellants were not aggressor, more so, they were in their house, therefore, it cannot be said that accused appellants were having any intention to commit murder of deceased Jaiky. More so, it is a case in which complainant party was aggressor and they went to the house of accused appellants in the night at about 1.30 am, at that time, incident took place. 20. Upon reading of entire evidence, it is also obvious that some quarrel took place in front of house of the accused appellants in spur of moment without any pre-meditation when sudden provocation was made by the complainant party, the occurrence took place in which the hammer which is used to be found in the house was used by the accused appellant Rakesh @ Suchla to inflict injury upon the head of the deceased. 21. Upon consideration of the entire evidence, we are of the firmed opinion that as per evidence on record offence cannot travel beyond offence under Section 304 Part I IPC because complainant party including deceased were aggressor, so also, they went to the house of accused appellant in the mid-night at 1.30 am and made quarrel in which incident took place in front of accused appellants, which is evident from the site plan (Ex. P/34) in which is categorically observed by the investigating officer that occurrence took place just in front of the house of the deceased in the mid-night at 1.30 am, therefore, it is a case in which accused appellants acceded their right of private defence, therefore, finding of the learned trial court so as to convict the accused appellant Rakesh @ Suchla for offence under Section 302 IPC is not sustainable in law. 22. In case of Gurmukh Singh (supra) the Hon'ble Supreme Court held that the relevant factors are required to be considered so as to arrived with the finding of guilt for offence under Section 302 or 304 Part I or II IPC. Para No. 23 of the said judgment is as follows: "23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. Para No. 23 of the said judgment is as follows: "23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused." 23. In case of Ramesh Kumar @ Toni (supra) the Hon'ble Supreme Court held that culpable homicide is not amounting to murder if it is committed without pre-meditation in a sudden fight and passion upon sudden quarrel and when the offender have not taken undue advantage or acted in cruel or unusual manner. The paras Nos. 9 and 10 of the said judgment are as follows: "9. We find that the prosecution story itself spells out that all these conditions are satisfied in the present case. As per the eye witnesses, PW. 8 and PW. 9, the incident had happened when the deceased accompanied by the two witnesses were passing through the vacant field of the accused, the appellant had abused him for having entered his field on which the deceased had also abused the appellant. As per the eye witnesses, PW. 8 and PW. 9, the incident had happened when the deceased accompanied by the two witnesses were passing through the vacant field of the accused, the appellant had abused him for having entered his field on which the deceased had also abused the appellant. It appears that it was after this altercation that the appellant inflicted a spade (kassi) blow on the head of the deceased. We also see from the prosecution evidence that though the fields of the two parties were adjacent to each other, no quarrel of any kind had earlier taken place. In this view of the matter, we are of the opinion that the case of the appellant would fall under exception 4 and be punishable under Section 304 Part I of the IPC as a single injury had been inflicted on the head of the deceased. 10. We, accordingly, allow this appeal and convert the conviction of the appellant from one under Section 302 IPC to Section 304 Part-I IPC and reduce the sentence from life imprisonment to seven years R.I. We also direct that if the accused has already undergone seven years of imprisonment, he shall be released forthwith, if not required in any other case." 24. Upon assessment of the entire evidence of the present case coupled with the aforesaid law laid down by the Hon'ble Supreme Court, we are of the opinion that finding of conviction arrived at by the learned trial court to convict the accused appellant Rakesh @ Suchla for the offence under Section 302 IPC is not sustainable in law. More so, it is a case of culpable homicide not amounting to murder, therefore, obviously, finding of guilt for offence under Section 302 IPC is not sustainable in law. The accused appellants were not aggressor and as per their evidence on record, the complainant party alongwith deceased went to the house of accused appellants. 25. The incident took place in the year 2009 in which accused appellants Beenja Ram @ Dhepiya, Kalu Ram, Khema Ram, Anuda @ Annu and Bhakniya @ Santosh were convicted for the offence under Sections 148, 323 and 341 IPC and it emerges from the fact that complainant party was aggressor, therefore, it is a case in which sentence awarded to them for offence under Section 302 IPC should be reduced to already undergone. 26. 26. Consequently, while following above law laid down by the Hon'ble Supreme Court both the appeals are hereby partly allowed. The conviction and sentence passed against the accused appellant Rakesh @ Suchla for the offence under Section 302 IPC by the learned Addl. District & Sessions Judge No. 4, Jodhpur Metropolitan, Jodhpur in Sessions Case No. 51/2012 vide judgment dated 23.9.2015 is hereby altered to offence under Section 304 Part I IPC and sentence of life imprisonment awarded to him is hereby reduced to sentence for 10 years RI while maintaining fine as awarded by the learned trial court. 27. The conviction of the accused appellants Beenja Ram @ Dhepiya, Kalu Ram, Khema Ram, Anuda @ Annu and Bhakniya @ Santosh for the offences under Sections 148, 323 and 341 IPC passed by the learned Addl. District & Sessions Judge No. 4, Jodhpur Metropolitan, Jodhpur in Sessions Case No. 51/2012 vide judgment dated 23.9.2015 is hereby maintained, however, their sentence for the aforesaid offences is hereby reduced to already undergone while maintaining the order of fine. But under Section 357 Cr.P.C., we deemed it appropriate to direct the accused appellants Beenja Ram @ Dhepiya, Kalu Ram, Khema Ram, Anuda @ Annu and Bhakniya @ Santosh to pay compensation to the tune of Rs. 5,000/- each to the injured person and the same amount shall be paid to the injured persons equally.