JUDGMENT : Gopal Krishan Vyas, J. In this criminal appeal filed under Section 374 (ii) Cr.P.C., the appellant Kapoora S/o Narsa is challenging the validity of the judgment dated 22.03.1988 passed by learned Sessions Judge, Sirohi in Sessions Case No.31/86 whereby the accused appellant Kapoora was held guilty for committing offence under Section 302 I.P.C. and punished with life imprisonment along with fine of Rs. 500/- and in default of payment of fine to further undergo six months' RI. 2. 500/- and in default of payment of fine to further undergo six months' RI. 2. As per facts of the case, First Information Report No.20/86 (Ex.P/37) was registered at police station Sheoganj, District Sirohi upon the complaint filed by PW-1 - Bhima S/o Bhura ji on 07.03.1986 for offence under Sections 147, 148, 149, 307 and 302 I.P.C. In the FIR, following allegations were levelled by the complainant PW-1 Bhima, which reads as under :- ^^bl iy Jh Hkhek S/o Hkqjkth dkSe eqxh;k okxjh mez 17 lky is'kk etnwjh lkfdu vkYik us gkthj Fkkuk gksdj tckuh fjiksVZ ntZ djkbZ fd esjk HkkbZ jkek] jktiwr yknwflag ds vjB uok ij gkyh gS dy jkr dks yknwflag ds vjB ij ls jk;Ms dh pksjh diwjk vejk filjku ujlk o uhck iq= cxqMk es.kk lkfdu vkY;k okys djds yk, Fks vkt nksigj dks yknqflag esjs cki Hkqjk dks vksyok nsus vk, Fks fd rqe vejh;k ok diqjk ds dkdk yxrs gks lks mudks le>kvksa rc esjs cki us ujlk o diqjk o vejk dks le>kus ds fy;s cqyk, exj os ugha vk, rks yknwflag ogka ls pyk x;k blds FkksM+h nsj ckn ujlk iq= eu:i o vejh;k] diwjk filjku ujlk eqxh;k okxjh lkfdu vkYik o dluk tks ujlk dk tekbZ gS o ohjh;k tks ujlk dks osokbZ gS lkfdu ekuiqj ikapksa ,d jk; gksdj ujlk ds edku ls fudy dj dqYgkM+h /kkfj;s o tkr: ysdj vk,] vejh;k ds ikl esa /kkfj;k] diwjk ds gkFk esa dqYgkM+h o ujlk] dluk o ohjh;k ds gkFks esa tkr: Fks ;g gekjh xqvkMh esa vk, vkSj ujlh;k us dgka fd ge rks jk;Mk pksjh dj yk, gS rqe euk djus okyk dkSu gksrk gS rc esjs cki us dgk fd rqEgkjh ethZ gks oSlk djuk brus esa diwjk us dqYgkM+h dh ,d pksV esjs cki ds flj esa ekjh o vejh;k us /kkfj;sa dh esjs cki ds Mkos gkFk ij ekjh o ujlh;k us tkr: dh pksV esjs cki dks tckMs ij ekjh ftlls esjk cki ogha fxj x;k o [kwu fudyus yxk rc esa o esjk HkkbZ jkek o esjs cgu lhrk NqM+kus yxs rks vejh;k us ,d pksV /kkfj;s dh esjs Mkos iSj ds ?kqVus ds ikl ekjh o esjs HkkbZ jkek ds ,d pksV ohjh;k us tkr: dh Mkos iSj ds lkFky ij ekjh o ,d pksV jke ds flj esa dluk us tkr: dh ekjh o esjh cgu lhrk ds ,d pksV ihV esa ujlk us tkr: dh ekjh esjk cki ds pksVs yxus ls ekSds ij gh ej x;kA esjk HkkbZ jkek dk iSj VwV x;k gS oks Hkh ogha iM+k gSa eSa o esjk HkkbZ jkek] cgu] lhrk o esjh eka y{eh us chp cpko fd;k bl dkj.k gesa rhuksa dks ekjihV dh eSa ekSdsa ls tku cpk dj Hkkxdj lkbZfdy ysdj fjiksVZ djus vk;k gwWa bu yksxksa us gedks tku ls ekjus ds fy;s pksVsa igqapkbZ gSaA izkFkhZ ds dgs vuqlkj g:Q cgjkQ fy[ks tkdj i<+dj lquk;k x;k oks lqu le> dj lgh gksuk ekudj fu'kku vxqLr fd;kA** 3. After registration of the aforesaid FIR, the investigation was commenced by the SHO, Police Station Sheoganj and five accused were arrested including the present appellant and after completion of investigation, charge-sheet was filed against them for committing offence under Sections 147, 148, 149, 325, 324, 323 a , 323 and 302 I.P.C. in the Court of Munsiff & Judicial Magistrate, Sirohi. Learned Magistrate committed the case for trial to the Court of District & Sessions Judge, Sirohi where the case was registered as Criminal case No.31/1986. 4. In the trial, the statement of 15 prosecution witnesses were recorded and 54 documents were exhibited from prosecution side. 5. After recording evidence of the prosecution, the statement of accused appellant Kapoora and four co-accused viz. Amra, Narsa, Kasna and Viriya were recorded under Section 313 Cr.P.C. The present accused appellant Kapoora stated in his statement that deceased Bhuriya inflicted injury by axe to him and Rama inflicted injury by 'dhariya', so also, PW-1 Bhima was having 'lathi' in his hand. When above persons were assaulted him, his brother Amra came there for rescue but he was also assaulted by them. 6. No oral evidence is given in defence but five documents were exhibited from defence side. After recording evidence, the learned trial Court finally heard the arguments and acquitted the accused Kasna and Viriya from the charges levelled against them so also while acquitting the accused Narsa from the charges levelled against him for offence under Sections 149, 307, 302 read with Section 149, 323 read with Section 149, 325 and 325 read with Section 149 I.P.C., held him guilty for offence under Section 323 I.P.C. Similarly, while acquitting the accused Amra from the charges levelled against him for offence under Sections 148, 302, 302 read with Section 149, 307, 307 read with Section 149, 323, 323 read with Section 149, 325 and 325 read with Section 149 I.P.C., held him guilty for offence under Section 324 I.P.C. The accused appellant Kapoora was acquitted from the charge for offence under Sections 148, 307, 307 read with Section 149, 323, 323 read with Section 149, 325 and 325 read with Section 149 I.P.C. but held guilty for committing offence under Section 302 I.P.C. and passed sentence for life imprisonment against him vide judgment dated 22.3.1988. 7. 7. In this appeal, the accused appellant Kapoora is challenging the conviction and sentence passed against him for offence under Section 302 I.P.C. on various grounds. 8. Learned counsel for the appellant submits that the conviction of appellant is based on wrong appreciation of evidence and wrong application of law, therefore, finding for offence under Section 302 I.P.C. against the appellant is not sustainable in eye of law. 9. Learned counsel for the appellant argued that the prosecution is at guilty for not placing true version of the incident before the Court that the complainant party was aggressor so also both the parties are close relatives. According to the learned counsel for the appellant, the occurrence took place in spur of moment which resulted in unfortunate death of deceased Bhura but it is also one of the important fact that injuries were sustained to the accused appellant and other co-accused persons, no explanation is given by the prosecution how those injuries were sustained to them in the incident, therefore, the whole story of the prosecution became doubtful. 10. Learned counsel for the appellant vehemently argued that the prosecution witnesses are not trustworthy and reliable witnesses because they are guilty for suppressing the true incident which took place on 07.03.1986 in which both the parties received injuries and unfortunately Bhura died in the incident. 10. Learned counsel for the appellant vehemently argued that the prosecution witnesses are not trustworthy and reliable witnesses because they are guilty for suppressing the true incident which took place on 07.03.1986 in which both the parties received injuries and unfortunately Bhura died in the incident. Therefore, the finding of guilt recorded against the accused appellant for commission of offence under Section 302 I.P.C. is not sustainable in law because as per evidence on record, the offence against the accused appellant does not travel beyond Section 304 Part-II I.P.C. instead of Section 302 I.P.C. While inviting attention towards the statement of doctor PW-15 Narendra Kumar Gehlot, it is submitted that the said witness has categorically stated before the Court that he has not only conducted the post-mortem of deceased Bhura but also examined the injuries caused to accused Amra and appellant Kapoora and gave injury report Ex.D/3 and D/4 and D/5 x-ray plate in which injuries caused by sharp edged weapon were found upon the body of appellant Kapoora, but there is no explanation from the prosecution side, how these injuries were caused to the accused appellant Kapoora and accused Amra, therefore, in the totality of the circumstances and evidence on record, it is apparent that occurrence took place in spur of moment and there was not pre–intention or motive for causing any injury to cause death of deceased Bhura. In the incident, both the parties were armed with weapons and they caused injuries to each other, which is evident from the injury reports of the accused and post-mortem report given by Doctor PW-15 Narendra Kumar Gehlot, therefore, the conviction of accused appellant Kapoora for offence under Section 302 I.P.C. is not sustainable in law. 11. Lastly, it is argued that as per the prosecution case, the motive comes out from the allegation of theft of the crop of 'Rayada' from the agricultural field of one Ladu Singh, which is evident from the contents of FIR but PW-4 Ladu Singh turned hostile in the trial and stated that allegation of prosecution is totally wrong. 11. Lastly, it is argued that as per the prosecution case, the motive comes out from the allegation of theft of the crop of 'Rayada' from the agricultural field of one Ladu Singh, which is evident from the contents of FIR but PW-4 Ladu Singh turned hostile in the trial and stated that allegation of prosecution is totally wrong. Learned counsel for the appellant vehemently argued that there is no evidence of motive or intention to prove that the accused appellant has committed an offence under Section 302 I.P.C., more so, as per evidence on record, it is a case in which offence cannot travel beyond offence under Section 326 I.P.C. Therefore, it is prayed that the judgment impugned may kindly be quashed to the extent of conviction of accused appellant Kapoora for offence under Section 302 and the conviction may be altered from Section 302 I.P.C. to Section 326 I.P.C. 12. In support of his arguments, learned counsel for the appellant invited our attention towards the judgment in case of Dana Ram v. State of Rajasthan, reported in 1986 RLW p.240 and in case of Keekiya & Anr. v. State of Rajasthan, reported in 2001 (3) R.Cr.D. 211 (Raj.) and submits that the judgment impugned for conviction of accused appellant Kapoora under Section 302 I.P.C. may kindly be quashed and set aside and finding of conviction for offence under Section 302 I.P.C. may be altered to offence under Section 326 I.P.C. and appellant may be punished for term already undergone. 13. Per contra, learned Public Prosecutor vehemently argued that it is a case in which injury was caused by the accused appellant Kapoora upon head of deceased Bhura, which is vital part of the body. As per statement of doctor PW-15 Narendra Kumar Gehlot, the said injury was sufficient in ordinary course of nature to cause death, therefore, only on this evidence, it is a case of murder because the accused appellant Kapoora inflicted injury by sharp edged weapon with open eyes upon the head of deceased, therefore, no interference is called for in the judgment impugned. 14. Learned Public Prosecutor further argued that although the injuries caused to the appellant Kapoora and Amra are not explained by the prosecution but it has nothing to do with the crime committed by the accused appellant for committing murder of deceased Bhura with motive. 15. 14. Learned Public Prosecutor further argued that although the injuries caused to the appellant Kapoora and Amra are not explained by the prosecution but it has nothing to do with the crime committed by the accused appellant for committing murder of deceased Bhura with motive. 15. According to learned Public Prosecutor, when accused appellant is not challenging the incident and the fact for causing injury by him upon head by sharp edged weapon is accepted then there is no question to interfere in the finding given by the trial Court to held the accused appellant guilty for offence under Section 302 I.P.C., therefore, it is prayed that the appeal may be dismissed. 16. After hearing learned counsel for the parties, it is necessary to observe that counsel for the accused appellant is not disputing the incident but argued that incident took place in spur of moment in which both the parties were armed with blunt and sharp edged weapons and the occurrence took place for the reason that a theft was committed by the accused appellant along with other co-accused in the agricultural field of Ladu Singh and for that incident Ladu Singh asked the deceased Bhura and his family members to give instructions the accused party not to commit such type of offence of theft. The witness PW-4 Ladu Singh gave statement in the Court that although theft of crop of 'Rayada' was committed in his agricultural field but I do not know who has committed the offence and how much quantity of 'Rayada' was stolen by the thieves. The said witness turned hostile in the trial and did not support the prosecution case. In our opinion, if specific allegation is levelled in the FIR to establish motive and that incident is not supported by any other independent witness or witness turned hostile and did not prove the allegation of motive, then, it can be said that the story of prosecution is based upon concocted story for motive. 17. Upon above assessment of evidence, we have no hesitation to hold that the prosecution has failed to establish any motive for the alleged incident in which deceased Bhura died. 18. To consider the arguments of learned counsel for the appellant that there is no ex s no explanation for the injuries caused to the accused appellant Kapoora and accused Amra in the incident. 18. To consider the arguments of learned counsel for the appellant that there is no ex s no explanation for the injuries caused to the accused appellant Kapoora and accused Amra in the incident. We have perused the statement of doctor PW-15 Narendra Kumar Gehlot, so also perused injury reports Ex.D/3, D/4 and x-ray plate-D/5. In the injury report of accused appellant Kapoora - Ex.D/4, following injuries were found, which reads as under:- 1. incised wound 8 cm x 3.5 cm wide x 1 cm deep on right fore arm, oblique on flexor side just above the writ joint. 2. swelling right forearm on upper side. 3. Contusion 3 x 3 cm on right intra scapular region. 19. Doctor PW-15 Narendra Kumar Gehlot specifically stated that he has examined the injuries of accused appellant Kapoora and found that there were three injuries upon his body. Following statement is given by doctor PW-15 Narendra Kumar Gehlot to prove the fact of injury caused to the accused party, which reads as under :- ^^vejk ,oa diwjk dks iqfyl okys ysdj vk;s Fks ;g lgh gSA vejk dh pksV la[;k 1 /kkjnkj vL= ls vkbZ gqbZ Fkh tks fd dqYgkM+h o /kkfj;k gks ldrh gSaA blh izdkj diwjk dh pksV la[;k 1 Hkh /kkjnkj vL= dh FkhA diwjk dh pksV la[;k 2 mldh pksV la[;k ,d ds ikl FkhA diwjk dh pksV la[;k 2 xaHkhj ikbZ xbZ FkhA diwjk dh pksV la[;k 2 o 3 ykBh o mYVh dqYgkM+h ls vk ldrh gSaA** 20. Upon perusal of above fact disclosed by the witness PW-15 Doctor Narendra Kumar Gehlot and statements of all other witnesses, we are of the opinion that there is no explanation for the injury caused to the accused appellant Kapoora from the prosecution side, therefore, it can be said that the prosecution has not come with clean hands before the Court to establish motive as well as correct story of incident. 21. Upon consideration of statement of author of FIR – PW-1 Bhima coupled with the statement of Ladu Singh PW- 4, we are of the opinion that the prosecution has failed to establish motive, therefore, the evidence of motive collected by the prosecution is hereby disbelieved. 22. 21. Upon consideration of statement of author of FIR – PW-1 Bhima coupled with the statement of Ladu Singh PW- 4, we are of the opinion that the prosecution has failed to establish motive, therefore, the evidence of motive collected by the prosecution is hereby disbelieved. 22. After recording of evidence, accused appellant Kapoora gave following statement under Section 313 Cr.P.C., which reads as under:- ^^gekjs ?kj Hkwjk] Hkhek o jkeh;k rFkk lhrk o Hkwfj;k dk iRuh geyk djus vk;sA Hkwjk ds ikl dqYgkM+h FkhA jkek ds gkFk esa /kkjh;k FkkA Hkhek ds gkFk esa Mkax FkhA vkrs gh esjs ekjh esjs nkfgus gkFk ij yxhA eSa fxj jgk Fkk fd esjs Hkhek us ekjhA esjk HkkbZ vejk cpkus dks vk;kA mlds Hkh /kkjh;k dh jkek us ekjhA eSa csgks'k gks x;ka ckn esa D;k gqvk eSa ugha tkurkA** 23. Upon perusal of above statement of accused appellant Kapoora coupled with the injuries caused to him and accused Amra, we are of the view that it is a case in which occurrence took place in spur of moment and both the parties were armed with weapons and they caused injuries to each other. Admittedly, both the parties are close relatives and there was no motive to commit murder, more so, it is a case in which occurrence took place due to anger in between the parties, therefore, it can be said easily that finding of guilt recorded by the trial Court against the accused appellant Kapoora for offence under Section 302 I.P.C. is perverse and suffers from patent illegality. 24. In case of Dana Ram (supra) cited by learned counsel for the appellant, there were eight injuries upon body of deceased but facts were of similar nature as the facts of the present case, therefore, Division Bench of this Court altered the conviction from offence under Section 302 I.P.C. to offence under Section 304 Part-II I.P.C. Following adjudication was made by Division Bench of this Court in para No. 11 and 12 of the judgment, which reads as under:- "11. As discussed above, here in the instant case two injuries on the head of the victim were inflicted not with the sharp side of the Jharbar but with its wrong (blunt or lathi) side. Now the Jharbar is an agricultural implement ordinarily kept by a cultivator with him to cut and remove the bushes etc. As discussed above, here in the instant case two injuries on the head of the victim were inflicted not with the sharp side of the Jharbar but with its wrong (blunt or lathi) side. Now the Jharbar is an agricultural implement ordinarily kept by a cultivator with him to cut and remove the bushes etc. In the instant case, the Jharbar was only 2' 3" long with its blade 8" long and 2" wide. None of the accused persons gave a call or shouted to kill Baluram. There is nothing on record to show that the accused person expressed a desire in one way or the other to kill Baluram. There is again nothing to show that the accused intended to cause deliberate murder of Baluram. There was no pre-designed plan or pre-meditation to commit his murder. We are, therefore, of the opinion that the case does not fall within the First Four Clauses of Section 300, IPC. In as much as the death has taken place, the case must at least come within the Second Part of Section 304, IPC as the act was done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. We are, therefore, unable to maintain the conviction of the appellants under Section 302, IPC. They should be, however, convicted under the Second Part of Section 304, IPC. 12. Accused Danaram and Dewaram were arrested on July 21, 1974 while accused Rewat Ram was arrested on August 3, 1974. Thereafter they remained in custody and their sentences were suspended by this Court on July 19, 1978. They, thus, remained in custody for a period of more than 4½ years including the remission. 25. Upon consideration of evidence of present case, keeping with the view of factual circumstances of this case, we find that there was no enmity in between the parties. Both the parties are members of the same family and there was no intention of either accused appellant to cause fatal injury to deceased Bhura, therefore, at the most the offence can fall under Part-II of Section 304 I.P.C. 26. In case of Keekiya & Anr. Both the parties are members of the same family and there was no intention of either accused appellant to cause fatal injury to deceased Bhura, therefore, at the most the offence can fall under Part-II of Section 304 I.P.C. 26. In case of Keekiya & Anr. (Supra) cited by learned counsel for the appellant, following adjudication was made by Division Bench of this Court in para No.19, 20 and 21, which reads as under :- "19. Keeping in view the afore stated proved factual circumstances stances, we are also of the view that there were no enmity between the parties, they were members of the same family and there was no intention of either of the accused appellants to cause fatal injuries to Kania and at the most offence may fall under part II of Section 304 I.P.C. 20. In Afrahim Sheikh v. State of West Bengal, AIR 1964 SC 1263 , in similar circumstances the Apex Court was of the view that if the accused person chase and severely beat a person, it would establish that their common intention was to beat. The common intention is with regard to criminal act i.e. the act of beating eating. Now the result of beating is the death of victim. The accused had no intention to kill the deceased but when they gave severe beating they had knowledge that he would die. Thus an offence under Section 304 Part II IPC is established. Since this criminal act is done in furtherance of the common intention of all the accused so each is guilty of offence under Section 304 Part II read with Section 34 IPC. In Peepal Singh v. State of Punjab, 2001 (2) SCC 292 , the Apex Court was of the view that determination of common intention, in addition to other factors includes consideration of nature of injuries, background of incident and nature of weapon used in crime. Similarly, Similarly, in R.C. Reddy v. State of A.P., 1999 (3) SCC 97 , relying upon Bolinudo v. State of A.P., 1994 Supp. (3) SCC 732, it was held that common object and common intention are inferable from the nature of weapon used, manner and sequence of attack, setting and surroundings under which occurrence took place. Similarly, Similarly, in R.C. Reddy v. State of A.P., 1999 (3) SCC 97 , relying upon Bolinudo v. State of A.P., 1994 Supp. (3) SCC 732, it was held that common object and common intention are inferable from the nature of weapon used, manner and sequence of attack, setting and surroundings under which occurrence took place. The fact that all the accused persons chased and surrounded the deceased and inflicted injuries with their respective weapons was sufficient to conclude that they had the common object to kill the deceased. Similarly, Similarly, it has been held in Harshad Singh Pahalwan Singh v. State of Gujarat, AIR 1977 SC 710 . 21. Keeping in view the afore-stated legal position in mind we are of the view that when both the accused appellants chased Kania with their lathis in their hands and inflicted as much as three lathi blows on his head which were so severe that Kania fell down unconscious and died two days thereafter, both the accused appellants should have knowledge that causing a severe blow re blow by a lathi by a lathi on the head of a person may prove fatal. Therefore, in the factual and legal aspects referred above in our considered view the offence does not fall under Section 302 IPC instead it falls under Section 304 P c.304 Part II IPC." 27. Upon consideration of entire evidence in the light of aforesaid adjudication, we are of the opinion that it is a fit case in which conviction of accused appellant Kapoora can be altered from offence under Section 302 IPC to offence under Section 304 Part-II IPC. Accused appellant Kapoora remained in custody from 07.03.1986 to 22.3.1988 during trial, thereafter, his sentence was suspended by this Court vide order dated 27.08.1990, thus, he has remained in custody for a period of more than four years. Therefore, we deem it proper to reduce the sentence of accused appellant Kapoora to already undergone. 28. Consequently, the instant appeal is party allowed. The conviction and sentence passed against accused appellant Kapoora for offence under Section 302 IPC is hereby quashed and set aside and he is held guilty for offence under Section 304 Part-II IPC and his sentence is reduced to already undergone and he is punished for four years RI, which he has already undergone, therefore, his bail bonds are hereby cancelled.