JUDGMENT : 1. In this criminal appeal filed under Section 374 (2) Cr.P.C., the appellants are challenging validity of impugned judgment dated 21st April, 2007 passed by learned Addl. Sessions Judge No. 2, Sri Ganganagar, Campal Suratgarh, in Session Case No. 10 2003 by which the learned trial court convicted the appellants for the offences under Section 302 and 302/34 of IPC and sentenced them as under:- (Accused appellants, Om Vishnu, Ram Niwas & Ramchandra) Under Section: 302 IPC: Imprisonment for Life with a fine of Rs. 1000/-, in default of payment of fine to further undergo of three months' RI (Accused appellant, Hari Ram) Under Section: 302/34 IPC: Imprisonment for Life with a fine of Rs.1000/- and in default of payment of fine, to further undergo of three months' RI. 2. Briefly facts of the case are that the complaint, PW.5, Amarchand (son of the deceased Lekhram) submitted a written report to the PW-18 Kuldeep Walika Sub-Inspector, Police Station-Suratgarh at about 05.15 PM on 20.12.2002 in the P.B.M. Hospital, Bikaner and said report was sent by him to Police Station-Suratgarh, by hand with Constable Vikram Singh. At Police Station FIR No. 708/2002 (Ex.P/17) was registered on 20.12.2002 at 11.10 PM for the offences under Section 302 and 34 of IPC. At Police Station FIR No. 708/2002 (Ex.P/17) was registered on 20.12.2002 at 11.10 PM for the offences under Section 302 and 34 of IPC. The following allegation were levelled by the complainant in the FIR, which reads as under: ^^fuosnu gS fd izkFkhZ vejpUn iq= ys[kjke tkfr fo'uksbZ fuoklh ljnkjiqjk chdk dk jgus okyk gwWaA gekjk ,d lkykrh [ksr 25 ,y-th-MCY;w- esa gSA ftlesa HkkbZ caVokjs ls esjs firk o rkm gjhjke dh dk'r gSA dy fnukad 19-12-2002 dks gekjs [ksr esa iRuh dh ckjh Fkh] [ksr esa esjs firk ys[kjke esjh ekrk lkfo= esjk yM+dk vkuUn dqekj o ukSdj vkseizdk'k FkkA gekjs ikuh dh ckjh lkeykrh gSA tks ge o gekjs rkm ckjh ckjh ls yxkrs gSaA dqy 'kke 6&6-30 cts tc esjs firk fcjcy jke ds [ksr esa ukds ij ikuh rksM+us igqaps rks esjs rkm gjh jke us vius yM+dksa jkepUnz] jkefuokl o vkse fo".kq dks dgk fd ys[kjke dks <+kyksaA gjhjke ds ikl 12 cksj dh cnawd FkhA rc fo".kq us tkus ls ekjus dh fu;r ls dLlh dh esjs firk ds flj ls ekjhA ftlls os uhps fxj x;s rks jkefuokl us dLlh dh esjs firk dh xnZu ij ij pksV ekjhA jkepUnz us dLlh dh ekFks ij pksV ekjh gjhjke us canwd dh cV~V ls ekjihV dh esjs firk ds jksyk djus ij FkksM+h nwjh ij [ksr esa dke dj jgs esjh ekWa o yM+dk vk x;s ftl ij gjhjke o mlds yM+ds ekSds ls Hkkx x;sA rc ekSds ij ls lquhy dqekj iq= gsrjke o lqHkk"k iq= lksguyky esjs firk dks Vs~DVj V~kyh esa Mkydj ?kj ys vk;s rc ogka ls thi esa Mkydj lqjrx<+ yk;s rc eSa Hkh ckr dk irk yxus ioj lqjrx<+ igqap x;k rc esjs firk dks chdkusj vLirky esa vk;s ftudh vkt lqcg djhc 8-30&9 cts e`R;q gks xbZA fjiksVZ nsrk gwa fd dk;Zokgh djsaA 20-12-2002** 3. After registration of the FIR, the investigation was commenced. The Investigating Officer went on spot and prepared site plan of the place of occurrence vide Ex.P/7) and recorded the details of the site vide Ex.P/7A. From the place of occurrence, simple soil was taken in possession vide Ex.P/8 and blood stained soil was also taken in possession vide Ex.P/9 on 22.12.2002. 4. The Investigating Officer went on spot and prepared site plan of the place of occurrence vide Ex.P/7) and recorded the details of the site vide Ex.P/7A. From the place of occurrence, simple soil was taken in possession vide Ex.P/8 and blood stained soil was also taken in possession vide Ex.P/9 on 22.12.2002. 4. The Investigating Officer after inspection of the body of the deceased prepared the memo of physical condition of the body of deceased in PBM Hospital, Bikaner vide Ex.P/5 at 08.10 AM on 21.12.2002. The "Panchnama" of the dead body was prepared vide Ex P/6 at 08.30 AM on 21.12.2002. Thereafter, the body was sent for postmortem. The postmortem was conducted by the Dr. PN. Mathur, Medical Officer of S.P. Medical College of Associate Hospitals, Bikaner, at 09.40 AM on 21.12.2002, in which 23 injuries were found on the person of deceased and as per the opinion of the doctor, the cause of death was the head injury. 5. In the investigation, the accused appellant, Ramchandra was arrested 17.12.2002 at 04.00 PM in front of two witnesses, namely, Om Prakash and Rajendra Prasad. Accused, Ramniwas was arrested on 27.12.2002 at 10.45 PM vide Ex.P/20 in the presence of Brijlal and Netram. Accused, Hari Ram, was arrested on 04.02.2003 vide Ex.P/24 at 12.30 PM. Accused, Om Vishnu was arrested on 27.12.2002 at 04.25 PM by the Investigating Officer. 6. After arrest, as per information given by the accused Ramchandra, under Section 27 of the Evidence Act, one "Kassi" ("Fawada") was recovered vide Ex.P/10 in front of Prithviraj and Maniram. As per information given by accused, Om Vishnu, one "Lathi" was recovered on 29.12.2002 at 01.40 PM vide Ex.P/12. Upon information given by accused Ramniwas, one "Kassi" was recovered on 29.12.2002 at 02.30 Pm vide Ex.P/14 in the presence of Prithviraj and Maniram. No recovery was made from accused Hari Ram. 7. The investigating officer after completion of investigation sent all the seized articles for chemical examination to the FSL from where the FSL report (Ex.P/25) was receive on 03.04.2003. The investigation officer filed charge sheet against all the accused appellants in the court of learned Addl. Chief Judicial Magistrate, Suratgarh, from where the case was committed for trial to the court of learned Addl. District and Sessions Judge No.2, Sri Ganganagar, Camp at Suratgarh (for brevity, hereinafter referred to as 'trial court'). 8. The investigation officer filed charge sheet against all the accused appellants in the court of learned Addl. Chief Judicial Magistrate, Suratgarh, from where the case was committed for trial to the court of learned Addl. District and Sessions Judge No.2, Sri Ganganagar, Camp at Suratgarh (for brevity, hereinafter referred to as 'trial court'). 8. Learned trial court after hearing the arguments framed charges against the accused appellants for the offences under Sections 302, 302/34 IPC and commenced trial. 9. In the trial, statements of 19 prosecution witnesses were recorded and 31 documents were got exhibited. After recording evidence of prosecution, the statements of the accused appellants were recorded under Section 313 Cr.P.C., in which all the appellants denied the charges levelled against them, pleaded not guilty and claimed trial. It was stated that they have been falsely implicated in this case by the complainant party and in defence, they produced three witnesses, namely, Vikas Chhabra (DW.1), Banwarilal (DW.2) and Brijesh (DW.3). 10. Learned trial court after recording the evidence of both the sides finally heard the arguments and vide the impugned judgment dated 21.04.2007 proceeded to convict the appellants for the offence under Section 302, 302/34 of IPC in Session Case No. 10/2003. The present appeal has been filed by the accused appellants assailing the validity of the impugned judgment recording conviction against them on various grounds. 11. Learned counsel for the appellant submits that the finding given by the learned trial court for conviction of the accused appellants is based upon false, concocted and fabricated evidence of prosecution. In the charge-sheet names of five eye witnesses namely Om Prakash, Kuldeep Kumar, Sudheer Kumar, Savitri Devi and Anand Kumar were included, but out of five eye witnesses only four witnesses PW-1 Om Prakash, PW-3 Kuldeep Kumar, PW-4 Savitri Devi and PW-7 Anand Kumar were produced as prosecution witnesses, out of these four eye witnesses, the independent witnesses PW-1 Om Prakash and PW-3 Kuldeep Kumar turned hostile and did not support the prosecution story in spite of the fact that PW-4 Savitri Devi and PW-7 Anand Kumar specifically stated in their statements that Kuldeep Kumar, Om Prakash and Sudheer Kumar were also present at the time of occurrence. It is also submitted that two witnesses PW-4 Savitri Devi is wife of the decease Lekh Ram and PW-7 Anand Kumar is the grand son of Lekhram. It is also submitted that two witnesses PW-4 Savitri Devi is wife of the decease Lekh Ram and PW-7 Anand Kumar is the grand son of Lekhram. According to the prosecution story, they were working in their agricultural field when occurrence took place and after hearing noise of quarrel, they immediately went on spot and saw the incident. The learned counsel for the appellants submits that as per the site plan, the distance in between the place of 40 occurrence and the agricultural field of Lekhram where these witnesses were working is about 4 bighas and crop was also standing in the agricultural field, therefore, it was not possible for them to see the occurrence, therefore, their allegations that all the four accused persons inflicted particular injuries by weapon, in the dispute for taking water from the canal is not acceptable. 12. It is also vehemently argued that both the witnesses PW-4 Savitri Devi and PW-7 Anand Kumar are close relatives of the deceased, therefore, the story narrated by them is concocted and false. The learned trial court erroneously relied upon their statements, therefore, it is a case in which the finding for conviction is based upon the testimony of planted witnesses. The so prosecution has failed to produce trustworthy and reliable evidence so as to prove the allegation of murder against the accused appellants, therefore, the Wing arrived at by the learned trial court to convict the accused appellants deserves to be quashed. 13. With regard to recovery of weapon it is submitted that as per allegation of both the eye witnesses PW-4 Savitri Devi and PW-7 Anand Kumar the appellant Hari Ram inflicted injury from the back side of gun, but said gun is not recovered in the investigation, so also, upon the weapon Kassi (Fawada) and Lathi recovered as per information of other accused appellants no blood of group 'B' or blood was found upon them, therefore, it is a case in which without any material and reliable evidence to connect the accused appellants with the crime the learned trial court convicted the accused appellant, as such, the accused appellants are entitled to be acquitted from the charge levelled against them. 14. 14. While inviting attention towards the statement of author of FIR Amar Chand S/o deceased it is submitted that the FIR submitted by him is based upon information given by his mother PW-4 Savitri Devi in the way when deceased Lekh Ram was taken to the hospital, therefore, the allegations levelled by him in the FIR is based upon information receive from his mother, which cannot be relied upon to convict the accused appellants. The learned trial court committed a grave error while holing the accused appellants guilty for offence under Section 302 IPC, therefore, the judgment impugned deserves to be quashed. 15. The crux of the arguments of the learned counsel for the appellants is that complainant party and the accused party are close relatives. The deceased Lekh Ram was real brother of appellant Hari Ram and uncle of other three appellants. admitly, the occurrence took place for taking water from canal as per the turn, therefore, it is obvious that there is no evidence of motive for committing murder of the deceased Lekh Ram who was real brother of accused appellant Hari Ram. According to the learned counsel for the appellants the whole prosecution story is concocted by the author of the FIR Amar Chand because occurrence took place on 19.12.2006 in between 6-6.30 pm whereas written complaint was filed by the complainant at 5.15 pm on 20.12.2002 in the PBM Hospital, Bikaner after the death of deceased Lekhram. It is also submitted that there is no explanation for the delay in filing FIR to the police, so also, no investigation was conducted by the prosecution from the doctor Vikas Chhabara of Kaushaliya Jaggannath Chhabara Hospital, Suratgarh where deceased was taken by the family members for treatment soon after the occurrence, the said doctor DW-1 Vikas Chhabara produced by the appellants as witness who has categorically stated in the statement that Police Station was near to his hospital but no report was given by the complainant party to the police on 19.12.2002 and after framing concocted story filed written complaint at 5.15 pm on 20 12.2002 in the PBM Hospital, Bikaner therefore, it is a case in which the prosecution has fabricated a false story so as to involve all the family members for committing offence under Section 302 IPC. 16. 16. Lastly it is argued that whole prosecution case is based upon the testimony of two eye witnesses PW-4 Savitri Devi and PW-7 Anand Kumar but both these witnesses are close relatives of the deceased and their presence is doubtful at place of occurrence because they were performing agricultural work in the agricultural field of Lekh Ram, which is very far from the place of occurrence. As per prosecution case, occurrence took place near the canal for the dispute of taking water in which number of injuries were caused to the deceased, but the prosecution has failed to prove its case beyond reasonable doubt because out of three independent eye witnesses two witnesses, viz., PW-1 Om Prakash and PW-3 Kuldeep Kumar turned hostile and did not support the prosecution case and 3rd eye witness Sudheer Kumar not produced before the court to support the prosecution case, upon plain reading of entire evidence of prosecution it is abundantly clear that prosecution has failed to prove its case beyond reasonable doubt. 17. With regard to recovery of weapon it is submitted that all the Motbirs in whose presence weapon Lathi, Kassi (Fawada) were recovered as per information of three accused appellants namely Ram Chandra, Ram Niwas and Om Vishnu, they turned hostile and did not support the prosecution case, No gun is recovered from the accused appellant Hari Ram and as per the FSL report (Ex.P/25) out of Kassis (Fawadads) on one Kassi (Fawada) and Lathi human blood was found, but upon one Kassi (Fawada) no human blood was found, so also, upon another Kassi mentioned at item no.7 in the FSL report blood group was not ascertained whereas upon Lathi, Kurta, Baniyan and Safa of deceased ground 'B' was found, but fact remains that there is no allegation of eye witnesses that injuries were caused by Lathi, therefore, on the basis of above arguments, it is submitted that prosecution has failed to prove its case beyond reasonable doubt for the recovery of weapon. Therefore, the judgment impugned may kindly be quashed. Therefore, the judgment impugned may kindly be quashed. In support of his argument, the learned counsel for the appellants invited our attention towards the judgment in the case of Triloka Ram v. State of Rajasthan reported in Cr.L.R. (Raj.) 1976 page 9 and submits that if the motive of offence is not proved and prosecution case is based upon planted witnesses then the finding of conviction is not sustainable in law. 18. Per contra, learned Public Prosecutor as well as learned counsel for the complainant vehemently argued that whole prosecution case is based upon the testimony of two eye witnesses namely PW-4 Savitri, wife of the deceased Lekh Ram and PW 7 Anand Kumar. Both these witnesses categorically alleged in their statements that on 19.12.2002, we had gone to their agricultural field to maintain the crop and to take vegetables. On that date, our turn for watering was also fixed at 6'O Clock to 6.15 pm, but accused party created problem to take water. 19. In the evening when we were working in the agricultural field heard noise of quarrel, therefore, immediately went on spot and saw that Hari Ram and his sons Ram Chandra, Ram Niwas and Om Vishnu were beating Lekha Ram. According to these two independent witnesses Hari Ram was having rifle in his hand and causes injuries from back side (butt) to the deceased Lekh Ram and all other three sons of Hari Ram were having Fawada and they were causing injuries by Fawada to the deceased Lekhram. As per testimony d these two witnesses after inflicting injuries Hari Ram said that he has died and all the accused left the place of occurrence. According to the testimony d both eye witnesses it is abundantly clear that both the eye witnesses categorically made allegation against the appellant Hari Ram that injury was inflicted by him from the back side of rifle and Fawada to the deceased Lekh Ram. Learned Public Prosecutor and the learned counsel for the complainant submit that there is no question to disbelieve the allegation made by the eye witness PW-4 Savitri, wife of the deceased and PW-7 Anand Kumar grand-son of the deceased because they were very much present at the time of occurrence took place and after incident they took injured to the hospital. Therefore, even if the blood was not found upon the weapon used in the incident, there is no question to disbelieve the testimony of these two eye witnesses because they are trustworthy witness. 20. Learned counsel for the complainant and the learned Public Prosecutor further argued that the finding given by the trial court does not suffer from any illegality or infirmity because the learned trial court considered the fact that although eye witnesses Kuldeep, Sudheer and Om Prakash turned hostile but testimony of these two eye witnesses cannot be disbelieved because they made allegation against the accused appellant for causing number of injuries to Lekhram. While inviting attention towards the recovery of weapon, it is submitted that although the author of the FIR Amar Chand stated that three accused appellant were having Kassi in their hands, but that Kassi is synonyms to Fawada (agricultural equipment) which is recovered as per the information given by the two accused appellant. Although, no weapon was recovered from the accused appellant Hari Ram, but he has participated in the incident and insisted other co-accused to cause injury to the deceased Lekhram, therefore, as per Section 34 of the IPC he has rightly been convicted for the offence of murder. 21. Learned Public Prosecutor lastly argued that even if the blood was not found upon the weapon recovered as per information given by the accused appellant, the conviction can be based upon oral evidence of eye witnesses if their presence is not disputed. Here in this case, upon perusal of statement of PW-4 Savitri and PW-7 Anand Kumar it is clear that there is no question to disbelieve their presence on spot, therefore, it is fit case in which the learned trial court has convicted the accused appellant for alleged offence of murder on the basis of testimony of two eye witnesses PW-4 Savitri and PW-7 Anand Kumar. 22. In support of their arguments, the learned Public Prosecutor as well as the learned counsel for the complainants relied upon the judgments of the Hon'ble supreme Court in the case of Gajoo v. State of Uttarakand reported in 2013(1) WLC (SC) Cr.93, State of Rajasthan v. Arjun Singh & Ors. reported in AIR 2011 SC 3380 and the judgment of this court in the case of Shri Ram v. State of Rajasthan reported in 1973 Cri. L.J. 1443 (V. 79 C 436). 23. reported in AIR 2011 SC 3380 and the judgment of this court in the case of Shri Ram v. State of Rajasthan reported in 1973 Cri. L.J. 1443 (V. 79 C 436). 23. After hearing the learned counsel for the parties, we have minutely scanned the entire evidence available on record. admitly, in the charge-sheet, the prosecution has relied upon testimony of five eye witnesses namely PW -1 Om Prakash, PW-3 Kuldeep Kumar, PW-4 Savitri Devi, PW-7 Anand Kumar and Sudheer Kumar. Out of these five witnesses, the witness Sudheer Kumar has not been produced before the court in support of prosecution case. PW-1 Om Prakash working labour of the complainant party was very much present on the date of incident but turned hostile and did not support the prosecution case. PW-3 Kuldeep Kumar whose agricultural field is adjoining to the place of occurrence who was also present as per statement of PW-4 Savitri Devi and PW-7 Anand Kumar turned hostile and did not support the prosecution case. 24. In view of the above, we find that whole prosecution case is based upon the testimony of two witnesses PW-4 Savitri Devi (wife of the deceased Lekh Ram) and PW-7 Anand Kumar (grand-son of the deceased Lekh Ram). 25. 24. In view of the above, we find that whole prosecution case is based upon the testimony of two witnesses PW-4 Savitri Devi (wife of the deceased Lekh Ram) and PW-7 Anand Kumar (grand-son of the deceased Lekh Ram). 25. PW-4 Savitri Devi gave the following statements in examination-in-chief, which reads as under:- ^^?kVuk yxHkx ,d lky igys dh gSA ?kVuk 'kke 6 cts dh gSA eSa o iksrk vkuUn ?kVuk ds jkst [ksr esa x;s FksA D;ksafd ge [ksr dk lEHkky o lkx x;s FksA tc ge ljlksa rksM+ jgs FksA rks geus jksyk lquk jksyk geus chjcy jke ds [ksr dh rjQ ls lquk Fkk jksyk lqudj ds ckn eSa o esjk iksrk jksy lqu dj m/kj Hkkx dj x;sA ogkWa tkdj geus ns[kk fd ogka ij geus ns[kk fd geus gjhjke Hkkew] jkepUnz jkefuokl] vkse fo".kq] ogka ij geus ns[kk fd gjhjke us canwd dh lwV cV dh esjs ifr ys[kjke ds ekjh vkse fo".kq us QkoM+s dh flj ekjhA esjs ifr ds fxjus ds ckn jkepUnz jkefuokl o vkse fo".kq QkoM+s dh ekjus yx x;sA o gfjjke cksy jgk Fkk fd bls NksM+uk ugha gSA ekj nksA pkjksa us eqag o flj ij pksV ekjh o tc ge ogka igqaps 15 ikoM+s nwj FksA tc gjhjke dg jgk Fkk fd ;g rks ej x;k pyks pysA dqynhi o lq/khj vius [ksr esa ikuh yxk jgs FksA gekjk pkSfFk;k vkseizdk'k es?koky Hkh o ogka ij FkkA jksyk djus ij vkse pkSfFk;s ds fiNs vkse fo".kq HkkxkA tc eSa esjs ifr ds ikl vkbZ vkSj mldh pksVsa ns[kh rks eSaus esjh vks<+uh dh iyw ls QkM+ dj mldh ifV;ka dhA fQj eSaus iksrs vkuUn ls dgk fd rqe jksvks er xkao tkvks dksbZ lk/ku yk nksA esjk iksrk xkao tkdj Vs~DVj V~kyh yk;kA esjk iksrk vkuUn ds lkFk lquhy o lqHkk"k Hkh lkFk vk;s FksA mlls igys esjh cgw bUnzk Hkh vk xbZ Fkh ftls gekjk pkSfFk;sa cqyk dj yk;k FkkA fQj esjs ifr dks V~sDVj V~kyh esa Mkydj ?kj ys vk;sA ?kj ls thi esa Mkydj lqjrxj gkWLihVy ys vk;sA mlls igys ekudlj pksjkgs ij esjk yM+dk vejpUn fey x;k FkkA mlus firk dk gky pky iwNkA ftl ij eSaus dgk fd rqe gekjs lkFk pyksA vkSj gkWLihVy MkWDVj ds ikl vk x;sA MkWDVj us dgka fd cqjh gkyr gS cpus dh mEehn ugha gS tYnh&2 ls chdkusj ys tkvksA** 26. Similarly, PW-7 Anand kumar gave following statements, which reads as under: ^^gekjk [ksr 25 ,y0th0MCyw0 esa gSA fnukad 19-12-2002 dh ckr gSA ml jkst eSa o esjh nknh [ksr laHkkyus o ljlksa dk lkx ysus [ksr x, FksA ml fnu gekjs ikuh dh N% cts ckjh FkhA eSa o esjh nknh ml le; lkx rksM+ jgs FksA rc geus chjcy ds [ksr dh rjQ ls jksyk lquk ogka x, rks gjhjke] o mlds yM+ds jkepUnz] jkefuokl o vkse] fo".kq pkjksa esjs nknk dks ekjihV dj jgs FksA gfjjke ds ikl canwd FkhA ftlus viuh canwd dh cV ls ekjihV dhA ckdh rhuksa ds ikl QkoM+s FksA mUgksaus QkoM+k ls esjs nknk dks pksVs ekjhA tc ge ikl x, rks gfjjke cksyk fd ;s rks ej x;k gS vc pyks lc pys x,A ogka ekSds ij dqynhi o lq/khj ikuh yxk jgs FksA o gekjk pkSFkh;k vkseizdk'k es?koky Hkh ekSds ij vk x;k FkkA eSaus ns[kk esjs nknk ds 'kjhj ij dkQh pksVsa yxh FkhA eSa ekSds ij jksus yxk vkSj esjh nknh us esjs dks xkao esa tkdj Vs~DVj ykus dks dgkA eSa] lquhy dqekj ds lkFk Vs~DVj ysdj [ksr vk x;kA fQj ge Vs~DVj ij esjs nknk dks V~kyh esa ?kj ys vk,A esjh ekrk bUnzk Hkh ckn esa [ksr esa vk xbZ FkhA ;gka ij fQj ge NkcM+k gkWLihVy esa esjs nknk dks ysdj vk, rks NkcM+k lkgc us dgk fd chdkusj ys tkvks rks esjs firk th o lqHkk"k o lquhy xkM+h esa Mkydj esjs nknk dks chdkusj gkWLihVy ys x;sA eSa o esjh nknh nksuksa ?kj pys x,A** 27. Upon perusal of statements of both the eye witnesses it is abundantly clear that both the witnesses categorically stated before the court that witness Kuldeep Kumar, Sudheer Kumar and Om Prakash were present when occurrence took place, but Kuldeep Kumar and Om Prakash turned hostile and they did not support the prosecution case. The witness Sudheer Kumar has not been produced as witness before the court, therefore, we have examined the finding of the learned trial court in the light of the statements of two eye witnesses PW-4 Savitri Devi and PW-7 Anand Kumar. 28. In the post mortem report (Ex.P/16), the doctor gave the following opinion, which reads as under: "The cause of death is comma to due to head injury, accelerated by other injuries mentioned in PMR, ante mortem in nature. 28. In the post mortem report (Ex.P/16), the doctor gave the following opinion, which reads as under: "The cause of death is comma to due to head injury, accelerated by other injuries mentioned in PMR, ante mortem in nature. The injury no.1 and 7 are self-sufficient to cause death in ordinary course of nature and are cause by sharp weapon." 29. In the post mortem report (Ex.P/16) 23 injuries are mentioned, out of 23 injuries the injuries nos. 1 to 11, 14 and 19 are incised wounds which can be caused by sharp edged weapon. The injuries nos. 12, 13, 15, 16, 17, 18, 20 and 21 are simple abrasions. Injuries nos. 22 and 23 are bruises. admitly, the occurrence took place for taking water for irrigation in the agricultural filed in which dispute was going on from last many years it is also admit fact of the case that deceased Lekh Ram and appellant Hari Ram are real brothers and there was quarrel in between the families for taking water for irrigation from the canal. No other reason is disclosed for enmity in between the parties. 30. First of all, we have examined the case of accused appellant Hari Ram, brother of the deceased. As per the allegation of PW-4 Savitri Devi and PW-7 Anand Kumar, Hari Ram caused injury from the back side of gun, which is in possession as per the evidence of eye witnesses, but no such gun was recovered in the investigation. More so, the investigating officer PW-15 Trilok Chand Parmar categorically stated that ^^eq>ls rQ~rh'k fnukad 09-01-2003 dks ,l-ih- ds vkns'k ls cny nh xbZ o fQj ,l-ih- jkethou xqtk us bldh rQ~rh'k dh Fkh esjs rQ~rh'k ls gjhjke dks eSaus eqyfte ugha ik;kA esjs vuqla/kku o xokgku ds c;kukr ds vk/kkj ij eSaus gjhjke dks eqyfte ugha ik;k uk gh mls ekSdk ij ik;kA** 31. Meaning thereby, in the first investigation, the accused appellant Hari Ram was not found involved in the case by the investigating officer. Later on, the investigation was changed and one Ram Jeevan Gupta, Dy. Superintendent of Police was directed to conduct investigation. 32. We have perused the statement of PW-19 Ram Jeevan Gupta, who filed charge-sheet against the accused appellant Hari Ram also. Later on, the investigation was changed and one Ram Jeevan Gupta, Dy. Superintendent of Police was directed to conduct investigation. 32. We have perused the statement of PW-19 Ram Jeevan Gupta, who filed charge-sheet against the accused appellant Hari Ram also. The said Investigating officer categorically stated before the court that ^^fnukad 09-01-2003 dks lq/khj dqekj vkSj dqynhi dqekj ds frrEck c;ku rFkk vkseizdk'k es?koky ds frrEck c;ku ys[kc) fd;sA iwoZ vuqla/kkudrkZvksa ls vuqla/kku dk voyksdu djus ,oa fy;s x;s c;kuksa ds vk/kkj ij vfHk;qDr gjhjke dks 'kjhd tqeZ ekurs gq, i=koyh Jheku~ ,lh lkgc dks izsf"kr dj nhA** 33. Upon perusal of the above statement it is abundantly clear that charge-sheet against Hari Ram was filed on the basis of investigation conducted by Dy. Superintendent of Police Ram Jeevan Gupta (PW-19), who has categorically stated before the court that Hari Ram was found accused in the case on the basis of statement of Sudheer Kumar, Kuldeep Kumar and Om Prakash Megahwal. 34. We have considered the evidence of eye witnesses and find that eye witness Sudheer Kumar has not been produced before the court to prove the allegation, so also, PW 3 Kuldeep Kumar and PW-1 Om Prakash turned hostile and did not support the prosecution case, therefore, it is apparent that in investigation conducted by PW-15 Trilok Chand Parmar accused appellant Hari Ram was not found as an accused but later on, investigation was changed and PW- 19 Ram Jeevan Gupta conducted further investigation in which Hari Ram was included as accused on the statements of three witnesses namely Sudheer Kumar, Kuldeep Kumar and Om Prakash, but none of these witnesses support the allegation against the accused appellant Hari Ram in the trial because PW-1 Om Prakash and PW-3 Kuldeep Kumar turned hostile and Sudheer Kumar not produced before the court in trial, therefore, we are of the opinion that finding against the accused appellant Hari Ram, based upon the testimony of PW-4 Savitri Devi and PW-7 Anand Kumar is not sustainable in law because during first investigation, appellant Hari Ram was not found involved in the case and in subsequent investigation, he was charge-sheeted on the basis of testimony of three witnesses, viz., Sudheer Kumar, Kuldeep Kumar and Om Prakash, but in the trial, they did not support the allegation of prosecution against accused appellant Hari Ram. In view of the above, discussion, we are of the opinion that Hari Ram is entitled to be acquitted from the charge levelled against him because prosecution has failed to prove the presence of accused appellant Hari Ram. 35. We have examined the case of other three accused appellants, namely, Om Vishnu, Ram Niwas and Ram Chandra in the light of the evidence on record. 36. admitly, as per the whole prosecution evidence the occurrence took place for the dispute of taking water from canal in the agricultural field in between 6-6.30 pm on 19.12.2002. There is no evidence on record to prove the fact that any quarrel took place in past. Meaning thereby, the occurrence took place in the spur of moment. We have examined the arguments of learned counsel for the appellants whether testimony of both the eye witnesses of the occurrence is trustworthy or not or they are planted witnesses. 37. We have perused the statements of both the eye witnesses and find that there is allegation of inflicting one injury by each accused to the deceased. Although in the statement of PW-4 Savitri Devi, it is stated that more injuries were caused to her husband when he fell down, but upon fact occurrence took place in spur of moment for the dispute of taking water from canal in the agricultural field in which both the parties are having their share and there is dispute in between parties for taking water for irrigation in their agricultural field. 38. Upon plain reading of the entire evidence it cannot be said that PW-4 Savitri Devi and PW-7 Anand Kumar were not present in the agricultural field when occurrence took place. But this court cannot lose sight of the fact that distance in between the place of occurrence where both these eye witnesses were working is too much, therefore, these witnesses were in position to see the persons but not the individual act. Therefore, to the extent of presence of eye witnesses, we are of the opinion that prosecution has established that at the time of occurrence both the eye witnesses were present in the agricultural field, but due to distance it was not possible for them to see the actual occurrence. 39. Therefore, to the extent of presence of eye witnesses, we are of the opinion that prosecution has established that at the time of occurrence both the eye witnesses were present in the agricultural field, but due to distance it was not possible for them to see the actual occurrence. 39. The Hon'ble Supreme court in the recent judgment in the case of Gajoo (supra) held that if there is no variance between the medical evidence and ocular evidence then even if blood is not found upon the weapon, the conviction can be sustained. Paras no.19 and 21 of the said judgment is as follows: "19. Now, we turn to the last submission on behalf of the accused that no serologist report was obtained in relation to the Daranti, Ext. 2 and bloodstained pyjama, Ext. Ka 5, and therefore, the prosecution case should fail. This argument does not impress us at all. No doubt both these exhibits were not sent to the laboratory for obtaining serologist report, but the absence thereof per se would not give any advantage to the accused. This is merely a defect in investigation. A defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court. PW5 has duly proved the recovery of Daranti, Ext. 2 and the blood stained pyjama, Ext. Ka 5 and has duly stood the test of cross-examination in court. Both these articles were recovered by the investigating officer Brahma Singh, PW6 and the recoveries have been duly established before the court. The recoveries having been proved and the case of the prosecution being duly support by two eyewitnesses, PW2 and PW3 and two witnesses, PW4 and PW5 who were present immediately after the occurrence, have proved the case of the prosecution beyond any reasonable doubt. "21. The present case, when examined in light of the above principles, makes it clear that the defect in the investigation or omission on the part of the investigating officer, cannot prove to be of any advantage to the accused. No doubt the investigating officer ought to have obtained serologist's report both in respect of Ext. 2 and Ext. 5 and matched it with the blood group of the deceased. No doubt the investigating officer ought to have obtained serologist's report both in respect of Ext. 2 and Ext. 5 and matched it with the blood group of the deceased. This is a definite lapse on the part of the investigating officer which cannot be overlooked by the Court, despite the fact that it finds no merit in the contention of the accused." 40. In case of Shri Ram v. State of Rajasthan (supra) the Division Bench of this court held that even if discovery of weapon is not proved to be stained with human blood it does not mean that discovery is of no substance. Paras nos.9 and 13 of the said judgment is as follows: "9. P.W. 5 Radhey Shyam has given a vivid and a graphic account of the whole prosecution version. He supports in to the prosecution story. He has unequivocally said that Shri Ram gave a knife blow to Gopal, which hit him on his left thigh. Meanwhile Ram Chander came forward and said "will you kill him?" This angered Shri Ram. He gave a knife blow to Ram Chander and that hit him on his stomach. No doubt, the witness has said at one place that first Bhairon and Gopal caught hold of Ram Chander, but this is only a minor variance in the prosecution story, as a result whereof his statement cannot be thrown overboard. The witness has also said that Jagdish gave a lathi blow to Ram Chander which hit him on his hand. This fact is not corroborated by the medical evidence. Excepting the prosecution story that Bhairon and Gopal at first caught hold of Ram Chander, the rest of the prosecution version, as unfolded by PW. 5 Radhey Shyam, is corroborated by Mohan Lal, P.W. 6. Mohan Lal has also said that the author of the injury on the abdominal region of Ram Chander was Shri Ram. Though he involves Jagdish also as the perpetrator of some injury on the head of Ram Chander, his evidence cannot be thrown out. To the same effect is the testimony of Prabhu Narain, P.W. 3. Learned counsel for the appellant submits that the aforesaid eye-witnesses have falsely implicated Jagdish and therefore, no reliance should be placed upon their evidence. Though he involves Jagdish also as the perpetrator of some injury on the head of Ram Chander, his evidence cannot be thrown out. To the same effect is the testimony of Prabhu Narain, P.W. 3. Learned counsel for the appellant submits that the aforesaid eye-witnesses have falsely implicated Jagdish and therefore, no reliance should be placed upon their evidence. Falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness, whose evidence does not contain a grain of untruth or, at any rate, exaggeration, embroidery or embellishment. In most cases the witnesses, when asked about details, venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have seen. But from this it cannot be inferred that their evidence as to the salient features of the case, after cautious and careful scrutiny, should not be considered: See Sohrab v. State of M.P., AIR 1972 SC 2020 = (1972 Cri LJ 1302). It may also be mentioned here that minor variance in the Statements of witnesses cannot dislodge the prosecution story: vide Sheo Darshan v. State of U.P., AIR 1971 SC 1794 = (1971 Cri LJ 1306). There is, in our opinion, credible, credible, cogent and convincing evidence that it was Shri Ram, who cause on the person of the victim an injury which eventually took away his life. It may also be said here that where, as here, when a concerted attack is made on the victim by a large number of people, it is often difficult to determine the actual part played by each offender. But on that ground the evidence on the substratum of the prosecution case or on its material part in respect of the main incident cannot be rejected, rejected. Having carefully scrutinized the prosecution evidence, we are fully convinced that it was Shri Ram and Shri Ram alone who caused a knife injury on the abdomen of Ram Chander. It is true that the knife, recovered on the information and at the instance of Ram Chander, has not been proved to be stained with human blood and, therefore, this discovery is of no substance. The recovery of the weapon of the offence, however, is only a corroborative piece of evidence. It is true that the knife, recovered on the information and at the instance of Ram Chander, has not been proved to be stained with human blood and, therefore, this discovery is of no substance. The recovery of the weapon of the offence, however, is only a corroborative piece of evidence. If such corroboration is lacking, it would not mean that the eye-witness's account of reliable character stands condemned. 13. Now the question is whether the offence, under the circumstances of the case can be said to be covered by clause thirdly of Section 300, I.P.C. That section requires that the bodily injury must be intended and the bodily injury intended must be sufficient in the ordinary course of nature to cause the death. The first part is a subjective one, indicating that the injury must be intentional. The second part is an objective one. In that case the Court must be satisfied that the injury sustained by the victim was sufficient in the ordinary course of nature to have caused the death. In the instant case the first and the second parts, in our opinion, are not fulfilled. Looking at the matter objectively, the injury which Shri Ram intended to cause, was only meant to wound him. The abdomen can easily be penetrated by a pointed instrument, and it requires but a slight force to wound the peritoneum or the intestines. "Penetrating wounds", as has been observed in Principle and Practise of Medical Jurisprudence by Taylor, 12th Edn., Vol. 1 page 251 "are not always fatal, even when such a result might be expected." It is also necessary to reiterate that a stab-wound of the abdomen may be considerably deeper when measured on the post-mortem table than it was at the moment of infliction. The reason is give by Lyon in his Medical Jurisprudence 10th Edn., Page 243, in the following words:- "The hand clasping the knife pushes the belly wall inwards, more especially a fat wall, to a distance of 2 or more inches." In that view of the matter including the size of the injury and the fact that Ram Chander died on the 4th day of the occurrence, we are of the opinion that clause thirdly of Section 300, I.P.C., does not cover the case. Inasmuch as death has been caused, the matter must still fall within the ambit of culpable homicide not amounting to murder. Inasmuch as death has been caused, the matter must still fall within the ambit of culpable homicide not amounting to murder. Section 299, I.P.C., is in 3 parts. The first part deals with doing an act with the intention of causing death. As we have shown above, Shri Ram did not intend to cause the death of the rescuer. Therefore, first part of Section 299, I.P.C., does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again the intention must be likely to cause death and that also, in our opinion, was not the intention of Shri Ram. The matter, however, squarely falls within the third part. The act which was done was done with the knowledge that Shri Ram was likely by such act to cause the death of Ram Chander. The case thus falls within the bounds of the third part of Section 299, I.P.C. and will be punishable under the second part of Section 304, I.P.C. as capable homicide not amounting to murder. We accordingly alter the conviction of Shri Ram from under Section 302 to Section 304, Pa n 304, Part II, I.P.C. 41. In case of State of Rajasthan v. Arjun Singh (supra), the Hon'ble Supreme Court held that testimony of relative eye witnesses should not be rejected merely because witnesses are related to the deceased, their testimony have to be analyse carefully because of their relationship. Paras Nos. 14 and 16 of the said judgment reads as under: "14. It was also pointed out that all the eyewitnesses, particularly, PWs 3, 4 and 6 being brothers and father of the deceased, they are interested in their version and no reliance need to be placed on their statements. We are unable to accept the said contention. This Court, in a series of decisions, has held that the testimony of such eye-witnesses should not be rejected merely because witnesses are related to the deceased. This Court has held that their testimonies have to be carefully because of their relationship and if the same are cogent and if there is no discrepancy, the same are acceptable vide Abdul Rashid Abdul Rahiman Patel & Ors. v. State of Maharashtra (2007) 9 SCC 1 . Likewise, minor discrepancies in the evidence of eye-witnesses are also immaterial. This Court has held that their testimonies have to be carefully because of their relationship and if the same are cogent and if there is no discrepancy, the same are acceptable vide Abdul Rashid Abdul Rahiman Patel & Ors. v. State of Maharashtra (2007) 9 SCC 1 . Likewise, minor discrepancies in the evidence of eye-witnesses are also immaterial. However, as rightly pointed out, if Dhiraj Raj Singh (PW-3) had sustained some injuries, his name could have been mentioned in Exs. P22, P23 and P32 which were earliest versions. In those documents, the names of Raghuraj Singh, who died on the same day and Himmat Raj Singh, who died later and Raj Singh, who receive gun shot injuries alone were mentioned and none else. Another aspect, as rightly pointed out is that when the injured persons were examined by the Doctor on the same day, admitly, PW-3 was examined only on the fourth day of the incident and it was seen that he did not receive any gun shot injury. Considering all these aspects including the fact that there is no proof of receiving gun shot injury to PW-3 and also taking note of the fact that he was 13 years of age at the time of occurrence, as rightly pointed out by the High Court, his presence itself is doubtful. 16 In the light of the above conclusion, the only witness available to support the case of the prosecution is Raj Singh (PW-2). Let us consider his evidentiary value and how far he support the case of the prosecution. Mr. Bajwa, learned senior counsel for the accused, by pointing out certain contradictions, submitted that it is not safe to convict the accused based on his evidence. It is also pointed out that Raj Singh (PW-2) is highly interested witness and closely related to eye-witnesses. It was further pointed out that in the absence of any neighbour, conviction based on the testimony of PW- 2 alone is not sustainable. In the light of the above submissions, we have carefully scrutinized the evidence of PW- 2. First of all, merely because the witness is related to eyewitnesses or the family of the deceased is not a ground for rejection vide Kuldip Yadav v. State of Bihar (2011) 5 SCC 324 . In the light of the above submissions, we have carefully scrutinized the evidence of PW- 2. First of all, merely because the witness is related to eyewitnesses or the family of the deceased is not a ground for rejection vide Kuldip Yadav v. State of Bihar (2011) 5 SCC 324 . It was also held that merely because the prosecution has not examined neighbours, it cannot be claimed that it is fatal to their case, when the evidence of eyewitnesses examined on their side is found to be acceptable and reliable. Raj Singh, (PW-2), in his evidence, in categorical terms has asserted that he saw five to seven persons standing on the roof of the house of Karan Singh. He had specifically mentioned the names of those persons as Bahadur Singh, Shivraj Singh, Banney Singh, Smt Swaroop Bai, Smt Gyan Kanwar, Smt Bhagwan Kanwar, Gajendra Singh and Karan Singh. Inasmuch as in the parchabayan (Ex. P32), only the name of Arjun Singh and as per Ex. P22 the names of Arjun Singh and Banney Singh was mentioned, who were present on the roof at the relevant time, as rightly observed by the High Court, the claim of Raj Singh (PW-2) that all the accused persons were standing on the roof is not believable, however, his assertion that two persons Arjun Singh and Banney Singh were on the roof cannot be denied. Even if we eschew certain portion from the evidence of Petitioner W-2, his assertion and the statement regarding the involvement of Arjun Singh, Shivraj Singh and Banney Singh cannot be disputed. In categorical terms, he explained the role played by these persons. It is clear from his evidence that he receive gun shot injuries which is also support by medical evidence. In view of the same, his presence at the time of occurrence cannot be disputed and is found to be proved. This is also strengthened from his statement in parchabayan (Ex. P32) and Ex. P22 statement given to Judicial Magistrate (PW-18). A perusal of Ex. P32 makes it clear that it was Arjun Singh who first fired a gun shot at Himmat Raj Singh and subsequently Bheem Singh, Gajendra Singh (both absconding) Banney Singh and Shivraj Singh also fired at Raghuraj Singh and Raj Singh causing injury to them. Ex. P32) and Ex. P22 statement given to Judicial Magistrate (PW-18). A perusal of Ex. P32 makes it clear that it was Arjun Singh who first fired a gun shot at Himmat Raj Singh and subsequently Bheem Singh, Gajendra Singh (both absconding) Banney Singh and Shivraj Singh also fired at Raghuraj Singh and Raj Singh causing injury to them. Ex. P32 also clearly shows that there are specific allegations of causing gun shot injuries against Shivraj Singh, Arjun Singh and Banney Singh. In the same manner, verification of Ex.P22 shows that Arjun Singh and Banney Singh fired at the deceased Himmat Raj Singh and, thereafter, Bheem Singh and Shivraj Singh fired at the brothers of Himmat Raj Singh when they were going to inform the police. Though Mr. Bajwa pointed out certain discrepancies as to the number of gun shots, in view of the number of injuries, as seen from Exs. P1-P4, support by the evidence of Dr. Manmohan Sharma (PW-1), the said objection is liable to be rejected and participation of these three accused, namely, Arjun Singh, Banney Singh and Shivraj Singh is clearly proved through various circumstances including the evidence of PW-2. 42. Upon examination of testimony of both eye witnesses it is clear that they are close relatives of deceased Lekh Ram, therefore, their presence in the agricultural field deserves to be accepted, but their contention that they saw incident minutely cannot be accepted for the reason that they were working at very far distance from the place of occurrence and the occurrence took place in spur of moment for the dispute of taking water from the canal for irrigation, so also, there was no pre-meditation or intention to cause death of deceased therefore, it can be said that it is a case of culpable homicide not amounting to murder. 43. The Hon'ble Supreme Court in the case of Dayanand v. State of Haryana reported in 2008 Cri.L.J. 2975 considering the identical issue that in absence of motive or intention and upon the fact that there was no repeated blow upon the vital part of the body, made following adjudication which reads as under:- "10. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 11. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death is cause is done - (a) with the intention of causing (1) with the intention of death; or causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or INTENTION + (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE + (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 13. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which cause the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature to cause death" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature." 44. On the basis of above discussion, we are of the opinion that finding to hold accused appellant Hari Ram guilty is not sustainable in law because prosecution has failed to prove the case against Hari Ram beyond doubt. Therefore, his conviction and sentence for offence under Section 302/34 IPC/34 IPC deserves to be quahsed. 45. On the basis of above discussion, we are of the opinion that finding of the learned trial court to convict the accused appellants Om Vishnu, Ram Niwas and Ram Chandra for offence under Section 302 IPC is also not sustainable in the eye of law because even if the entire evidence of prosecution is accepted then also case cannot travel beyond offence under Section 304 Part I IPC because there is no evidence of motive more so, occurrence took place in spur of moment when dispute arose for taking water for irrigation from canal. 46. Consequently, this criminal appeal is partly allowed. The conviction and sentence awarded to the accused appellant Hari Ram for the offence under Section 302/34 IPC by the learned Addl. Sessions Judge No.2, Sri Ganganagar vide judgment dated 21.4.2007 passed in Sessions Case No. 10/2003 is hereby quashed and he is acquitted from the charge levelled against him. So far as accused appellants Om Vishnu, Ram Niwas and Ram Chandra are concerned, their conviction and sentence awarded by the learned trial court is hereby altered from the offence under Section 302 IPC to Section 304 Part I IPC. The accused appellants Ram Chandra and Ram Niwas are in custody from 26.12 2002 and the accused appellant Om Vishnu remained in custody from 28.12.2002 to 16.9.2003 and thereafter from 21.4.2007 to 29.10.2013, therefore, their sentence is hereby reduced to already undergone. The accused appellants Ram Chandra and Ram Niwas are in custody from 26.12 2002 and the accused appellant Om Vishnu remained in custody from 28.12.2002 to 16.9.2003 and thereafter from 21.4.2007 to 29.10.2013, therefore, their sentence is hereby reduced to already undergone. The accused appellants Hari Ram and Om Vishnu are on bail, therefore, their bail bonds are hereby discharged, and they are not required to surrender The accused appellants Ram Niwas and Ram Chandra are in custody, therefore, they be released forthwith, if not needed in any other case. 47. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are directed to forthwith furnish personal bonds in the sum of Rs. 20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.