ORDER : Since both the appeals are directed against the impugned judgment dated 05.11.2007 passed by the learned Additional Sessions Judge, Fast Track, Balotra Headquarter, Barmer, therefore, we propose to decide these appeals by this common judgment. The instant appeals are directed against the judgment dated 05.11.2007 passed by Additional Sessions Judge (Fast Track) Balotra Headquarter, Barmer in Sessions Case No. 59/06(Old No.27/06) by which the accused-appellant Kan Singh is convicted under Section 302 IPC and appellant-accused Sumer Singh is convicted under Section 302/34 of IPC and both the appellants-accused are sentenced with life imprisonment and with a fine of Rs.5,000/- in default thereto further to undergo for six month simple imprisonment. 2. 2. The contents of Ex.P/5 F.I.R. No.37 dated 09.04.2006 reads as under :- lsok esa] Jheku Fkkukf/kdkjh th] iqfyl Fkkuk lenM+h fuosnu pUnuflag iq= HkWaojflag tkfr jktiwr fuoklh vEcksa dk ckM+k dh vksj ls fuEu izdkj gS fd geus ,d [ksr dkadfj;k okyk nfj;ko dkWaoj iRuh Hkksikyflag th jktiwr dksVM+h okyksa ls vkt ls 15 iUnzg o"kZ o"kZ iwoZ [kjhnk Fkk ftlds ls<+k lksguflag iq= 'kEHkwflag dk yxrk gSA geus [ksr [kjhnk rc ls gh lksguflag o mudk yM+dk dkuflag esjs ls og esjs firkth HkWaojflag th og esjs HkkbZ vtqZuflag ls fookn djrs FksA [ksr ds lsMk ij ge yksx ckM+ djrs rks lksguflag o dkuflag ckM+ fc[ksj nsrsA dkQh le>k;k ij ugha ekusA 17-03-2006 dks gekjs lsMs ds isM+ dkuflag us dkV fn;sA geus vksyek fn;k rks ukjkt jgus yxk og dgk isM+ rks D;k ekSdk vk;k rks rqEgsa Hkh ugha NksM+saxsA lqesjflag iq= y[kflag tkfr jktiwr fuoklh flyksj tks dkuflag dk fxuk;r gS og [ksr ds elys esa mudk lg;ksx djrk gSA og ge Hkh lqesjflag esa :i;s ekaxrs gSaA bl laca/k esa gekjs cksypky gks j[kh gS og lqesjflag gels ukjkt jgrk gS vkt fnukad 08-04-2006 dks fnu ds ,d cts ,d xkM+h cksysjks dkys jax dh ftls dkuflag pykrk gSA lqesjflag lkFk esa vkdj vkxs cSBk Fkk o ,d yM+dk dqEgkjksa dk gksxk Hkh lkFk cSBk Fkk tks xkM+h ysdj fnu Hkj gekjs ?kj ds vktq&cktq ?kwers jgsA mDr xkM+h 10&15 fnu ls Hkw & ekfQ;k yksxksa dks tehu fnykus gsrq dkuflag o lqesjflag ysdj ?kqe jgs gSaA FkksM+k vU/ksjk gksus ij dkuflag rFkk lqesjflag gekjs ?kj ij tkdj cqjh rjg ls xkyh;ka cksyus yxs rks eSa ckgj x;k o xkfy;ka nsus ls euk fd;k rks xkM+h jokuk dj dkuflag eq>s ekjus dh fu;r ls mij yk;k rks eSa Hkkxdj pkSdh ij p<+ x;k og gYykg fd;k rks esjk HkkbZ vtqZu flag o esjs firkth HkWaojflag ckgj fudys rks ns[kk xkM+h jkLrs ls ys tkdj okil ?kqekbZ o nks pDdj vktq cktq yxk;s rFkk fQj ,dne xkM+h gekjs mij ykbZ lqesj flag us dgk ns[krk D;k gS xkM+h rhuksa ds mij ls fudky nks rks eSa Hkkxdj tky ds isM+ ds vkM+ esa vk x;k rFkk vtqZuflag jkLrk ds nwljh rjQ pyk x;k og dkuflag us djhc 9 cts o 9-30 ds chp jkf= ds tku cq>dj xkM+h gesa tku ls [kRe djus dh fu;r ls esjs firkth Jh HkWaojflag th ds mij p<+k nh tks /kksjk ij [kM+s Fks eSa tky dh vksV esa u tkrk rFkk vtqZuflag Hkh cpko gsrq u nkSM+rk rks ge rhuksa dks tkus ls [kRe dj nsrsA gekjs firkth dks [kRe dj dkuflag] lqesjflag rFkk dqEgkjksa dk yM+dk xkM+h dks Hkxkdj mlesa Hkkx x;sA ge firkth dks lk/ku dh O;oLFkk dj vLirky ys x;s ogkWa mUgsa e`r ?kksf"kr fd;kA dkuflag] lqesjflag fnuHkj mDr xkM+h fy;s ge yksxksa dks tku ls [kRe djus gsrq ?kqe jgs FksA xkWao ds dbZ yksxksa us ,slk lquk FkkA vr% fjiksVZ is'k dj fuosnu gS fd & eqyfteku ds fo:) dkuwuh dk;Zokgh djkosaA Sd/- L.T.I., Chndan Singh 3. Heard rival submissions of both the parties. It has been argued on behalf of the appellants-accused that so far as the incident is concerned, it is not disputed but the way in which it is projected, is not acceptable because it occurred in a spur of moment, when accused Kan Singh tried to escape from the venue, while he was targeted to be beaten by the complainant side and while the vehicle was being plied hurriedly, victim Bhanwar Singh, wittingly came in-front-of the jeep and got accidental dash from the vehicle, there was no intention to kill anybody, prosecution has also failed to establish motive, learned counsel has further contended that the trial court has wrongly convicted the appellants-accused. Learned counsel for the appellants have also contended that the appellant-accused Sumer Singh was not at all involved in the incident and several witnesses of the prosecution have admitted that he did not board the vehicle and got deboarded in the village itself, all the witnesses of the prosecution have corroborated that Sumer Singh was not there on the driving seat, so allegations that he drove the vehicle and hit deceased Bhanwar Singh and killed him intentionally are not correct. Learned counsel for the appellants have also contended that FSL has not been referred to the accused persons under their examination under Section 313 Cr.P.C., so it cannot be read against them and so far as conviction of Sumer Singh is concerned, it is also bad in the eye of law because he did not participate in the alleged crime, despite the learned trial court has wrongly held him guilty, he is entitled to be acquitted from the charges and it has been contended that the sentence passed against accused Kan Singh be modified under Section 304 Part-I IPC and appellant-accused Sumer Singh be acquitted and both the appeals be allowed accordingly. Per contra, learned Public Prosecutor has contended that there is no infirmity or perversity in the judgment impugned. The case of the prosecution hinges upon ocular evidence. Per contra, learned Public Prosecutor has contended that there is no infirmity or perversity in the judgment impugned. The case of the prosecution hinges upon ocular evidence. Both the accused tried to run-over Bolero jeep upon deceased, as well as upon, two of the sons of the deceased, who ran and took shelter under some objects and witnessed entire incident, the accused persons came there by a Bolero jeep, they were roaming hither and thither from the day time and were in search of an opportunity to crush-down the complainant party, they had planned and aggressively came and hurled abuses and ultimately drove the vehicle to crush the complainant side and mercilessly run-over the vehicle over the deceased, had the sons of the deceased not sought shelter and got escaped themselves, they too would have been killed. The story of the prosecution is entirely proved by eye-witnesses who have narrated everything in a precise way. The injuries are well corroborated by medical evidence, jeep was also having hitting signs, even the driver of the vehicle, who has been produced in defence, has admitted that the deceased Bhanwar Singh was hit by the vehicle and was killed there. There is no flaw in the impugned judgment, both the accused have rightly been convicted and sentenced by the judgment impugned. The appeals do not possess any merit, so, both the appeals are liable to be dismissed. 4. Appraisal and evaluation of the evidence reveals as under: PW-1 Gajendra Singh is a scribe witness of FIR, he has said that the event belongs to 08.04.2006, he was at his home, at about 10-10.30 p.m., he heard voices of crying and came out of his house, sound was coming from the side of house of Bhanwar Singh and house of Bhanwar Singh was one kilometer away from his house, then he and Hempuri went towards the house of Bhanwar Singh, few boys came there, rushingly and asked to come-along by saying that Bhanwar Singh was badly injured, he will have to be taken to hospital, so he went by his vehicle, near the house of Bhanwar Singh, he witnessed Bhanwar Singh in a pool of blood, in the lap of Devi Singh, who was crying, Bhanwar Singh was put into the vehicle, he said that Kania and Sumer Singh had caused accident. Bhanwar Singh was taken to hospital where he died. Bhanwar Singh was taken to hospital where he died. He has further said that on the say of Chandan Singh, he wrote FIR, which was read-over to Chandan Singh, he put his thumb impression, Chandan Singh gave the report to the policemen. He has further said that next day, police came at the site of occurrence and took samples of blood soil and seized shoes of Bhanwar Singh, which were sealed. He has further confirmed Ex.P/2, Ex.P/3 Panchnama, Ex.P/4 consignment letter of dead body, Ex.P/5 FIR and has said that he wrote whatever was conveyed to him by Chandan Singh in Ex.P/5 report and said that Bhanwar Singh sustained injuries over head, arms and other parts of the body, in his cross examination, he has said that he did not have any talk with Bhanwar Singh and has said that the report was written in the hospital, he has further said that when police came, storm was blowing, vehicle wheel marks were slightly visible at the place of occurrence. PW-2 Datar Singh is a witness of Panchnama Ex.P/3 and has accepted his signatures over Ex.P/3 and has said that the body was having injuries on head, arms and legs. PW-3 Tej Singh is a witness of Ex.P/6 pertaining to seizure of wearings of deceased Bhanwar Singh. 5. PW-4 Arjun Singh is an eye-witness and son of deceased Bhanwar Singh, he has said that the incident belongs to 8th of the month of Chet, at about 9-9.30 in the night, "Kan Singh" came driving black coloured Bolero, "Sumer Singh" was sitting with him in the vehicle, he has further said that Kan Singh and he has got dispute over land. He had earlier cut some khejri trees from his field, on arrival, they started abusing, his brother Chandan Singh came and asked them not to abuse, on Chandan Singh's cry, he and his father Bhanwar Singh came out, then Kan Singh and Sumer Singh fled away with the vehicle and came again after taking a round. He has further said that they intended to kill both of us, brothers and their father. At that time, Kan Singh was plying the vehicle and Sumer Singh was sitting along-with. Sumer Singh asked Kan Singh to run-over the vehicle, over the trios, so they ran-over the vehicle over his father. He has further said that they intended to kill both of us, brothers and their father. At that time, Kan Singh was plying the vehicle and Sumer Singh was sitting along-with. Sumer Singh asked Kan Singh to run-over the vehicle, over the trios, so they ran-over the vehicle over his father. He has further said that he went and sheltered towards anganwari and his brother took shelter of bushes and hide there, else the accused would have killed both of the brothers. He has further said that vehicle came at full speed and has said that his father sustained injuries on arms, head and legs, apart from sexual organ, then his father was taken to Samdari Hospital, who died there. He has further said that they had submitted report, police came subsequently and has said that at the time of the event, Devi Singh and Prem Singh were also with them. He has further said that Devi Singh and Prem Singh had implored Kan Singh with folded hands, despite "Kan Singh" did not yield and ran-over the vehicle, over his father. He has admitted his signatures on Ex.P/6, in his cross-examination, he has said that the time when his father came out of the house, then Chandan Singh, Prem Singh and Devi Singh were standing near the vehicle and were asking Sumer Singh and Kan Singh to be merciful with folded hands at that time, when vehicle started Dallaram S/o Ranaram was not sitting, on the driver seat, but he was sitting on back seat. He has further said that when he and his father came, out of the house, the vehicle went away and came back after a round, then "Sumer Singh" was plying the vehicle and "Kan Singh" was standing beside the deponent. He has further said that Kan Singh called back the vehicle by telephone, which came back within five minutes, it stopped near Kan Singh. He has denied that his father and he would have ran behind Sumer Singh to thrash him or his father would have damaged, indicator of the vehicle. He has further said that police has recorded his statements on 09.04.2006 and Balotra Deputy had inquired nine days later to the incident. He has denied that his father and he would have ran behind Sumer Singh to thrash him or his father would have damaged, indicator of the vehicle. He has further said that police has recorded his statements on 09.04.2006 and Balotra Deputy had inquired nine days later to the incident. He has further said that he is unaware that Deputy Sahab of Barmer recorded his statements on 17.05.2006, slight deviations have also occurred in the police statements Ex.D/1, which appears to be not material. He has further said that vehicle was not coming, so fast as to the talk of the riders could not be heard and it was not so fast. 6. PW-5 Chandan Singh is also an eye witness and son of deceased Bhanwar Singh. He has said that he had purchased an agricultural field from Smt. Dariya Kanwar about 15 years back and agricultural field of Sohan Singh is adjacent to the boundary of that field. He has further said that sometime Kan Singh broke the boundary and sometime disturbed the demarcation of the field, so a dispute was there with him. He asked them but they did not yield. He has further said that 15- 20 days prior to the incident, Kan Singh chopped off and severed trees from his field, he had objected, then Kan Singh and Sumer Singh angrily said that, "we even won't spare you, when occasion comes". He has further said that Sumer Singh is a relative of Kan Singh and they owe money to Sumer Singh, so they are not having good relations, whereof he supports Kan Singh, on the subject of land dispute. He has further said that seven months prior at about 1-2 p.m., "Kan Singh" came by a black coloured Bolero and took rounds there, Sumer Singh was also with him, in the evening of that day, Kan Singh and Sumer Singh came outside of his house and started abusing him and challenged, he came out of the house and asked them not to hurl abuses and go away but he brought his vehicle towards him for killing, rushingly he climbed on a platform. After hearing his screams, his brother Arjun Singh and father Bhanwar Singh came out of the house. After hearing his screams, his brother Arjun Singh and father Bhanwar Singh came out of the house. Kan Singh and Sumer Singh took a ride and rounds of surrounding, near the school and brought back the vehicle, then Sumer Singh asked Kan Singh ply vehicle over them and kill them, then he drove vehicle towards us with an intention to kill us. He ran and took shelter and Arjun Singh ran-away towards anganwari for safety, they ran over the vehicle over his father Bhanwar Singh. He has further said that had he not taken shelter or Arjun Singh would have not runaway to the other side, the accused would have killed them, as well, then they fled away. He has further said that his father was taken to hospital, where he died. Report was given to the Thana Incharge in the hospital, which is Ex.P/5. He has further said that his father sustained injuries on legs, head, arms and other parts of the body and his father died because of injuries. He has further said that when his father was crushed and hit to death by the accused persons, his brother Arjun Singh, Prem Singh and his brother-in-law Devi Singh were also there. Prem Singh and Devi Singh had also tried to console Kan Singh, but he was not amenable and has further clarified that Kan Singh deliberately plied the vehicle speedily with an intention to kill, which resulted in death of his father Bhanwar Singh. He has accepted his signatures on Ex.P/5. 7. PW-6 Hem Puri, a witness of proximity area, assertively reached at the event side after the incident, he has said that on inquiry from Arjun Singh, he was told by Arjun Singh that Kaniya (Kan Singh) fled away after dashing the vehicle and causing, grave predicament. He has also said that Chandan Singh told him that Sumer Singh was also accompanying Kan Singh and has again said that Chandan Singh had told him that Kan Singh was standing there and Sumer Singh, plyingly brought the vehicle. He has further said that Chandan Singh had also said that Kan Singh had dashed the vehicle. He has also said that Chandan Singh told him that Sumer Singh was also accompanying Kan Singh and has again said that Chandan Singh had told him that Kan Singh was standing there and Sumer Singh, plyingly brought the vehicle. He has further said that Chandan Singh had also said that Kan Singh had dashed the vehicle. This kind of utterance goes to show that the first version indicates that Kan Singh was standing there and Sumer Singh brought the vehicle plyingly and the subsequent one shows that the vehicle was driven by Kan Singh, he has also said that he had participated in the panchayat, held to resolve boundary dispute. 8. PW-7 Devi Singh is also an eye witness. He has said that both Chandan Singh and Prem Singh are his brother-in-laws, who were having a field boundary dispute with Kan Singh, about nine months ago, he had come to meet his sister, at about 9.00-9.15 p.m., they heard clamour outside the house and on going outside they saw Kan Singh and Chandan Singh hurling filthy and abusive language. Sumer Singh was accompanying Kan Singh there, whom he knows, then he, Prem Singh and Chandan Singh went to pursuade them and asked not to rebuke but Kan Singh did not yield, they were having a black coloured Bolero, then Prem Singh and Kan Singh went aside, at that time, "Sumer Singh" started the vehicle and took a round of chowk and after turning the vehicle he came back. He has further said that after getting his hand released from Prem Singh, "Kan Singh" boarded into the vehicle, he drove, Sumer Singh was sitting besides him. He has further said that "Kan Singh" had started the vehicle to kill all and "Sumer Singh" had uttered that runover the vehicle, then Kan Singh ran the vehicle over us. Chandan Singh took shelter of a tree and Prem Singh went towards anganwari centre, then Kan Singh ran over the vehicle on Bhanwar Singh. He has further said that Bhanwar Singh was hit on legs and arms and after that they fled away with the vehicle. Chandan Singh took shelter of a tree and Prem Singh went towards anganwari centre, then Kan Singh ran over the vehicle on Bhanwar Singh. He has further said that Bhanwar Singh was hit on legs and arms and after that they fled away with the vehicle. He has further said that he lifted, fallen Bhanwar Singh in his lap, who was crying and was saying, ^^vks js dkfu;k ekfj;k js** , in his cross-examination, he has said that at the time of event, he was in the house of Prem Singh and he has seen the Bolero vehicle at the time of incident, not earlier and has further said, "gkdk eSusa ekjs ekjs dk lquk". He has further said that ^^;s dguk xyr gS fd os ugha ekus gks vkSj Hkaoj flag us xsMh dh baMhdsVj ij ekjh gks** . He has further said that he had seen the vehicle, which was occupied by a kumhaar, Sumer Singh and Kan Singh. He has also said that when he went outside, then Sumer Singh and Kan Singh were standing outside, the vehicle and has again said that it is correct that Kan Singh and Sumer Singh were standing outside of the vehicle near Bhanwar Singh and Chandan Singh and a lad of kumhaar was sitting inside the vehicle, none of the villager was there at that time. He has further said that Bhanwar Singh had only shared him that, ^^ekjs js ekjs js** . 9. He has further said that Bhanwar Singh had only shared him that, ^^ekjs js ekjs js** . 9. Appraisal of testimony of this witness goes to show that both the accused persons were standing there on the road besides Bhanwar Singh and Chandan Singh and they were bit abusive and were tried to be calmed down, which reveals that the accused persons were furious, and they were standing outside of the vehicle and wrathfully reacting by using abusive language, had they been in pre-concert, under such a plan to kill someone, then instead of expressing wrath or listening persuasive from the complainant side, would have directly endeavored to crush them with the dash of vehicle, rather, the evidence goes to show that "Sumer Singh" went with the vehicle and left "Kan Singh" there, quite alone and came there after a ride and round, which also dispels a pre-planned murderous attack, this witness has also said that "Sumer Singh" had taken the vehicle towards Hanuman Temple, behind school and came back turning the vehicle from there on telephone call which shows that there was no contemplation of killing. 10. PW-8 Jetha Ram, another eye-witness has become ""hostile"" and he has said that about ten months retro, at about 8-8.30, they were returning to their home, soon they reached anganwari beside Hanuman than, Kan Singh, Sumer Singh, Prem Singh and Chandan Singh were standing there, Kan Singh and Sumer Singh were having a black coloured vehicle. He has further said that Chandan Singh and Sumer Singh were having heated talks. Meanwhile, Prem Singh came and they asked Kan Singh to persuade Sumer Singh, then he heard a dash like bang and he went away, in his cross-examination, he has said that it is wrong that the vehicle was driven by Kan Singh, if it was driven by Sumer Singh, then also it is not known to him but exchange of abuses had taken place amongst them. On a suggestion, he has replied that, ^^eq>s irk ugha fd Hkaojflag }kjk xkM+h :dokus ds fy;s vkM+s fQjus ls mls VDdj yxh gks** . 11. PW-9 Ramjilal is a witness of Ex.P/13, seizure memo of the Bolero Vehicle, in his cross-examination, he has said that the vehicle was found stationed outside the thana and it was having signs of accident, since its indicator was broken. 11. PW-9 Ramjilal is a witness of Ex.P/13, seizure memo of the Bolero Vehicle, in his cross-examination, he has said that the vehicle was found stationed outside the thana and it was having signs of accident, since its indicator was broken. PW-10 Kushal Chand is a Constable, who conducted mechanical examination of the vehicle vide Ex.P/14. He has said that he had examined the vehicle, none of its part was having blood spots. Ex.P/14, the mechanical examination of vehicle indicates that it was found mechanically fit, except breakage of drive side indicator. Ex.P/13, seizure memo of the vehicle, has also got a text, ^^nkfguh rjQ dk baMhdsVj VqVk gqvkA dkap ds uhps HkfV;k.kh fy[kk gqvkA vkxs uEcj o ihNs uEcj fy[ks gq,** . 12. PW-18 Dr. Suresh Charan has said that he had conducted autopsy and prepared Ex.P/21, postmortem report on 09.04.2006 and has said that the cause of death of Bhanwar Singh was injuries sustained which includes head injury, hemorrhage and shock and duration of the death was twenty four hours from autopsy. He has said that the autopsy was done on 09.04.2006 between 7.30 - 9.30 a.m. He has further said that the body was having following injuries :- "(1) Antemortem lacerated wound lateral side of left forearm 15" X 3". (2) Lacerated wound 14" X 4" with all muscles and all blood vessels torn with fracture tibia. (3) Haematoma posterior side of skull. (4) Lacerated wound anterior side of penis. (5) Multiple lacerated wound, all over body." 13. PW-12 Prem Singh is also an eye-witness and son of deceased Bhanwar Singh, he too has said that it is an event of 9.30 of 08.04.2006, he and his brother-in-law Devi Singh were sitting, then "Kan Singh" was talking outside near anganwari, he heard it so he and his brother-in-law came outside of the house and observed that the vehicle was standing ahead of anganwari and "Kan Singh" was standing outside. Chandan Singh, Bhanwar Singh and Arjun Singh were also standing outside there. Kan Singh was abusing Chandan Singh, then he and his brother-in-law took Kan Singh towards school side and asked him not to abuse and tried to calm him down, he too requested with folded hands, but, Kan Singh kept on abusing, then, Sumer Singh took a turn of the vehicle and came towards school, at that time, Kan Singh sat on the driving seat. After that, Kan Singh drove the vehicle with an intention to kill and ran-over the vehicle on his father Bhanwar Singh. Arjun Singh tried to escape and went towards anganwari, Chandan Singh took shelter of a jaal tree, in his cross-examination, he has denied that he and his brother and his father were having cane/sticks in their hands and has denied that his father would have hit walking stick on the vehicle. He has further said that he did not have talk with his father, he only uttered ^^gs jke] gs jke** . He has further said that : ^^;g dguk xyr gS fd esjs firk us dkuflag dh xkM+h ij xsMh dh ekjh gks vkSj dqEgkjksa dk yM+dk ml xsMh dks cpkus ds fy;s vk;k gks vkSj Hkaojflag th dks cpkus ds fy;s og xkM+h ysdj jokuk gks x;k gksA** PW-15 Peera Ram, owner of the Bolero jeep, from whom the vehicle was taken on hire. He has said that it was rented for Rs.600/- per day to Sumer Singh and he does not know Kan Singh. He further said that he does not know as to whether Kan Singh learns driving or not and has said that Sumer Singh had driven the vehicle when it was hired. He has further said that he had gone to Pali and had given vehicle to his brother Dalla Ram as driver and it is correct that on dates of 7th and 8th, Dalla Ram was driver on jeep. PW-17 Jassa Ram is a partial Investigating Officer, who has said that he had conducted investigation and had found the offence verified against the accused persons. He has also said that it is wrong that Sumer Singh would have not found involved in the incident. PW-19 Bhupendra Singh has also remained investigator, he has said that he found the vehicle stationed near the thana at about 2-3 noon, its indicator was broken and has also said that according to his investigation, the driver of the vehicle at the time of incident, was Kan Singh and has also denied by saying that it is wrong that at the time of the incident, Sumer Singh would have not remained together with him. 14. The defence has also produced three witnesses. 14. The defence has also produced three witnesses. DW-1 Dalla Ram, who has remained calendar witness of prosecution, arrayed at S.No.31 in the list of witnesses, and this witness was not produced by the prosecution before the trial court but defence has produced this witness as DW-1. PW-15 Peera Ram, owner of the Bolero jeep, has explicitly said that his brother Dalla Ram was handed over the vehicle for driving when he gone outside. Testimony of this witness is valuable. He has said that on that day, his brother Peera Ram had gone to Pali and his vehicle was given to him for driving. He, Bhanwarlal and Sumer Singh were in the vehicle. It is an incident of 08.04.2006, Kan Singh was also with them, they had gone to village Kotdi at about 8-9 in the night to leave Kan Singh there, they stopped the vehicle behind Kotdi School, they four were riding in the vehicle, then Sumer Singh and Kan Singh descended from the vehicle, he, Bhanwarlal and one more person stopped there, they asked us to leave, when we came back 10-15 minutes later, then found that several people were gathered there behind the school and wordly exchanges were taking place. "Kan Singh" and "Sumer Singh" were standing outside the vehicle and in front another party was there. The wordly exchanges were taking place between both of them. He has further said that at the time of wordly altercation, he did not observe any object in anybody's arm, only one man was having a lathi in his hand. He has further said that when the yonder party came with lathi, he sat inside the vehicle on the rear side and Sumer Singh also ascended into vehicle, Sumer Singh started vehicle and went on. He, Bhanwarlal and Sumer Singh, were in the vehicle. Kan Singh kept standing outside there. He has further said that when the vehicle started, then a man came in-front-of the vehicle and got injured by the vehicle, then he, Sumer Singh and Bhanwarlal rode towards Mangla Gaon, then Sumer Singh said him that leave the vehicle in Samdari Police Station. He went to Samdari thana and left the vehicle there and came back, in his cross-examination, he has said that when he left the vehicle in police station, he did not inform policemen. He went to Samdari thana and left the vehicle there and came back, in his cross-examination, he has said that when he left the vehicle in police station, he did not inform policemen. Further, in cross-examination, he has accepted that Bhanwar Singh died of hitting by Bolero jeep and precisely narrated that: ^^;g dguk lgh gS fd Hkaojflag dh e`R;q cksysjks xkM+h uacj vkj0ts0 04&Vh 0526 dh VDdj ls gqbZ FkhA ;g dguk lgh gS fd e`rd Hkaoj flag vius edku ds vkxs eafnj ds ikl xkM+h dh VDdj ls ekjk x;k FkkA tgka ikl esa tky dk isM+ vk;k gqvk gSA ;g dguk lgh gS fd Hkaojflag dk yM+ds panu flag] izse flag o vtqZu flag ?kVuk ds le; ogha ij ekStwn FksA ;g dguk xyr gS fd eqfYteku vtqZu flag o Hkaojflag ds ifjokj ls >xM+k djus xkM+h ysdj ?kVuk LFky ij x;s gksaA dkuflag ,oa lqesj flag dh Qfj;knh ikVhZ ls igys dksbZ vnkorh pyrh gks rks irk ugha gSA ;g dguk xyr gS fd cksysjks xkM+h ds ,dne dkys dkap gksaA cksysjks xkM+h ds lQsn ikjn'khZ dkWap gh FksA ;g dguk lgh gS fd esjs HkkbZ ihjk jke us eq>s xkM+h pykus ds fy;s nh Fkh tks ,d fnu ds fy;s nh Fkh tks ;g dg dj nh Fkh fd eqfYteku tgka dgs ogka ys tkA ge dks lqcg xkM+h nh FkhA dku flag o lqesj flag nksuksa dks lenM+h ls gh xkM+h esa cSBk;k FkkA ;g dguk lgh gS fd fnu Hkj xkM+h gksus ls igys rd xkM+h eSa gh pykrk jgkA ;g dguk lgh gS fd rc rd eq>s ;g irk ugha Fkk fd dku flag o lqesj flag xkM+h pykuk tkurs gS ;k ughaA** He has again said that it is correct that Kan Singh and Sumer Singh were drunk and it is correct that when Kan Singh and Sumer Singh got deboarded from the vehicle wordly exchanges had taken place with the yonder sided party and the wordly exchanges had taken place for 10-15 minutes, on which issue the talks were being exchanged, is not known to him. He has further said that when the wordly altercation took place, then ignition was off but keys were there in the ignition, though this witness has discarded some of the statements of his police statements Ex.D/10. 15. He has further said that when the wordly altercation took place, then ignition was off but keys were there in the ignition, though this witness has discarded some of the statements of his police statements Ex.D/10. 15. It emerges from the testimony of DW-1 Dalla Ram that he was the actual driver of the Bolero jeep, which was driven by accused person/s at different intervals, but cross-examination of this witness establishes that the cause of death of Bhanwar Singh resulted by a hit of this vehicle. It is also apparent that for certain moments, wordly heated exchanges and altercations took place between both the sides and few tried to calm it down. It has also emerged from the entire testimony of both the sides that accused Kan Singh and Sumer Singh were indulged in heated wordly exchanges and they were there. DW-1 Dalla Ram has also accepted that both Kan Singh and Sumer Singh were under influence of liquor, admittedly, Kan Singh was having an agricultural field adjacent to the agricultural field of complainant side and in the night hours, he got deboarded there by the jeep. Almost all the witnesses of the prosecution have accepted this version that Kan Singh was there standing, earlier while wordly abusive/wrathful wordly exchanges were going on between both the sides, which goes to reveal that nothing of this kind was perceived by the assailants side to assassinate anybody or runover the vehicle to cause death of anybody by crushing or colliding, but the event happened in spur of moment without such a pre-meditation. Had there been any such thought, then exchange of wordly altercation or efforts to pacify or persuade the other side by the family members of the deceased would have not taken place. Even it has emerged from the evidence that during the course of wordly exchanges, Sumer Singh abruptly drove the vehicle towards school side and came back after a ride, while, if version of Dalla Ram is observed, then Sumer Singh ascended on the driver seat and started the vehicle and drove it, when a man with lathi came in-front-of the vehicle, who was hit by the vehicle, it has also come in the prosecution evidence that both Kan Singh and Sumer Singh were there in the vehicle, they initially hurled abuses and then ran-over the vehicle, which resulted in death of Bhanwar Singh. Entire evidence of the prosecution also corroborates that Kan Singh was on the driving seat, though it has also come in the evidence that Kan Singh was there on the floor outside the vehicle earlier and heated wordly exchanges were taking place between both the parties. Even, PW-1 Gajendra Singh has said that Kania (Kan Singh) and Sumer Singh caused accident. 16. Section 304 IPC envisages : "304. Even, PW-1 Gajendra Singh has said that Kania (Kan Singh) and Sumer Singh caused accident. 16. Section 304 IPC envisages : "304. Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is 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." It has been contended by the learned counsel for the appellants-accused that the incident occurred in a spur of moment and it was not pre-meditated, the injuries to the deceased were caused by a solo hitting blow of the vehicle, when the accused persons were trying to flee away from the venue, in order to avoid harm, because lathi hurling assault was apprehensive and paid driver of the vehicle Dalla Ram, DW-1, has also asserted that a lathi wielding man came for assault, had there been any killing view, then the vehicular hit would have been given frequently or by reverse of the vehicle and not to a solo person but to others as well, but it is very much apparent that act of the appellants-accused persons was ipso facto so much grave that hitting to a old man with a speedy jeep would cause such bodily injury as is likely to cause death, which resulted in death of deceased Bhanwar Singh, who sustained grievous injuries, which were sufficient to cause his death as per the medical evidence, so the findings of conviction under Section 302 and 302/34 IPC are bad, which may go, to the extent of Section 304 Part-I IPC and the sentence also deserves to be modified and mitigated in consonance to the offence. 17. 17. In Nanak Ram v. State of Rajasthan [2014 (5) SCC (Cri) 82], Hon'ble the Supreme Court has laid down : "Section 300, Exception 4 - Sudden quarrel - Out of 9 injuries only one fatal - Exception 4 of Section 300 is applicable and not section 302. (Para 17) (b) Indian Penal Code, 1860 - Section 304 Part I - Death caused by acts of accused with intention to cause such bodily injury as likely to cause death - Offence squarely covered under section 304, Part I (para 18)" and in Dilip Kumar Mondal & Anr. v. State of West Bengal, 2015 (2) SCC(Cri) 318 Hon'ble the Supreme Court has laid down : "Section 300 Exception 4 - Deceased receiving two incision injuries - injuries to others not grievous - Accused-appellants carrying normal agricultural equipments which were used as weapons - Sudden free fight without premeditation - Case falls within section 300, Exception 4 - Section 302 not attracted - Sentence modified. (Para 23, 24)" 18. Perusal of the statements made under Section 313 Cr.P.C. shows that both the accused were candidly put questions relating to Ex.P/26 FSL Report and contentions as raised by defence do not appear to be correct in this respect. 19. Considering all the afore-discussed evidence and the law as discussed above, it is obvious that both Kan Singh and Sumer Singh acted under active colloboration in furtherance of common intention to cause such bodily injury to the deceased as was likely to cause his death. In view of the afore-discussed backdrop, we feel that the conviction of appellant-accused Kan Singh under Section 302 IPC and that of appellant-accused Sumer Singh under Section 302/34 IPC deserves to be converted under Section 304 Part-I and Section 304 Part-I/34 IPC respectively and sentence also required to be modified accordingly. Resultantly, both the appeals are hereby partly allowed and conviction of appellants-accused Kan Singh and Sumer Singh under Section 302 and 302/34 IPC is altered and converted to Section 304 Part-I IPC and to Section 304 Part-I coupled with Section 34 IPC and their sentence is reduced to 10 years' rigorous imprisonment, the fine shall remain unaltered. Resultantly, both the appeals are hereby partly allowed and conviction of appellants-accused Kan Singh and Sumer Singh under Section 302 and 302/34 IPC is altered and converted to Section 304 Part-I IPC and to Section 304 Part-I coupled with Section 34 IPC and their sentence is reduced to 10 years' rigorous imprisonment, the fine shall remain unaltered. The appellant-accused Kan Singh has remained absconded during parole and he is yet to serve rest of the sentence, residue from the period of 10 years, another appellant-accused Sumer Singh is on bail, so he is directed to surrender forthwith for serving the rest of the sentence accordingly. A copy of this judgment be kept in both the files of appeals. Record of the trial court be sent back expeditiously.