ORDER : Gopal Krishan Vyas, J. The instant criminal appeal has been filed by the appellants under Section 374 (2) Cr.P.C., 1973 assailing the validity of judgment dated 9.8.2012 passed by learned Sessions Judge, Rajsamand in Sessions Case No. 45/2011 (State of Rajasthan v. Choga Ram & Anr) arising out of FIR No. 82/2010 Police Station Kelwara whereby the learned trial court convicted the appellants for offence under Section 302 IPC and passed the sentence for life imprisonment. 2. As per the facts of the case, on 04.06.2010, the complainant Uda Ram (PW-13) S/o deceased Chamna Ram, submitted a written report at Police Station Kelwara stating therein that on 03.06.2010, when he came from well after taking water, he saw that appellants were giving beatings to his father and took him towards their house and due to that, Chamna Ram succumbed to injuries sustained by him. Upon the aforesaid report, an FIR No. 82/2010 was registered under Section 302, 365, 34 IPC at Police Station Kelwara and SHO commenced the investigation. 3. During investigation, the appellants were arrested and necessary proceedings at the place of occurrence was conducted and dead body of the deceased Chamna Ram was sent to the hospital by the investigating officer. In Primary Health Centre, Kelwara, the medical officer PW-11 Dr. Kripa Shankar and PW-12 Dr. Vivek Shukla conducted the postmortem of the body of the deceased Chamna Ram and gave its report Exhibit P-32 in which 10 injuries were reported upon the body of the deceased. The postmortem report was obtained by the investigating officer for investigation and after conducting complete investigation, filed charge sheet against the appellants in the court of Judicial Magistrate, First Class, Kumbhalgarh under Section 302, 365/34 IPC. The learned Magistrate, committed the case for trial to the court of learned Sessions Judge, Rajsamand but later on, the case was transferred to the court of Addl. Sessions Judge (Fast Track) Rajsamand. However, due to abolition of Fast Track Courts, the matter was again transferred to the court of Sessions Judge, Rajsamand. 4. The learned trial court after providing an opportunity of hearing to the accused appellants, framed charge under Sections 302, 365/34 IPC against the accused appellants and commenced the trial. 5. Sessions Judge (Fast Track) Rajsamand. However, due to abolition of Fast Track Courts, the matter was again transferred to the court of Sessions Judge, Rajsamand. 4. The learned trial court after providing an opportunity of hearing to the accused appellants, framed charge under Sections 302, 365/34 IPC against the accused appellants and commenced the trial. 5. In support of the prosecution case, statement of 18 prosecution witnesses were recorded including so called eye-witness, PW-13 Uda Ram and other witnesses of recovery as well as the doctors who had conducted postmortem of the body of the deceased Chamna Ram. 6. After recording evidence of prosecution, the learned trial court proceeded to record statement of accused appellants under Section 313 Cr.P.C., 1973 in which both the accused appellants denied the allegations of prosecution witnesses. The accused appellant Choga Ram gave following explanation under Section 313 Cr.P.C., 1973 which reads as under:- ^^geus peukjke ds lkFk dksbZ ekjihV ugha dhA peukjke us vR;f/kd ‘kjkc ih j[kh FkhA ftlls og igkMh+ ls yq<drk gqvk fxj x;k] ftlls mlds pksVs yxhA tehu [kjhnus okys us peukjke dks ekjkA** The other accused appellant Pada Ram gave following explanation under Section 313 Cr.P.C , 1973 which reads as under.:- ^^geus peukjke ds lkFk dksbZ ekjihV ugha dhA peukjke us vR;f/kd ‘kjkc ih j[kh FkhA ftlls og igkMh+ ls yq<drk gqvk fxj x;kA ftlls mlds pksVs yxhA tehu [kjhnus okys us peukjke dks ekjkA** 7. However, no oral or documentary evidence was adduced by the appellants in support of their defence. After recording the evidence, the learned Sessions Judge, Rajsamand finally heard arguments and convicted the accused appellants for offence under Section 302 IPC and acquitted them from the charge under Section 365/34 IPC in Sessions Case No. 45/2011 vide judgment dated 09.08.2012. 8. In this criminal appeal, the aforesaid judgment dated 09.08.2012 is under challenge. 9. Learned counsel for the accused appellants submits that the whole prosecution case is based upon concocted story of the prosecution because deceased Chamna Ram and the accused appellants are real brothers. The occurrence took place, as after consuming liquor, the deceased Chamna Ram fell down and due to the said incident, injuries were caused upon his body but on the basis of false report submitted by the witness PW-13 Uda Ram, the police arrested the accused appellants without evidence and filed charge sheet under Section 302, 365/34 IPC. The occurrence took place, as after consuming liquor, the deceased Chamna Ram fell down and due to the said incident, injuries were caused upon his body but on the basis of false report submitted by the witness PW-13 Uda Ram, the police arrested the accused appellants without evidence and filed charge sheet under Section 302, 365/34 IPC. As per the counsel for the appellants, the prosecution has failed to prove its case beyond reasonable doubt, therefore, there is no question to accept the prosecution case because the entire case is based upon false and concocted story of PW-13 Uda Ram. 10. Learned counsel for the accused appellants further argued that even if the whole prosecution evidence is accepted then also, no offence under Section 302 IPC is made out because none of the injury was found upon the vital part of the body of the deceased. More-so, all the ten injuries which is said to be caused can be caused due to the reason that the deceased fell down on the way and this fact is accepted by the witness PW-13 Uda Ram in his statement who stated that the way was not in proper order where they were residing. 11. Learned counsel for the accused appellants further argued that there is no evidence of motive on record so as to hold the accused appellants guilty for offence under Section 302 IPC because motive and intention are the basic ingredients of offence under Section 302 IPC, therefore, even if this Court comes to the conclusion that incident took place and deceased was assaulted by the appellants then also, offence cannot travel beyond Section 304 Part-I IPC because evidence of motive is absent. In support of his arguments, learned counsel for the appellants drew our attention towards the following cases laws: 1. Pulicherla Nagarju v. State of A.P. reported in (2006) 11 SCC 444 . 2. Khemla v. State of Rajasthan reported in 2016 (2) Cr.L.R. (Raj.) 668. 3. Moorthy v. State of Tamil Nadu, reported in (2010) 3 SCC (Cri) 316. 4. Murlidhar Shivram Patekar & Anr. v. State of Maharashtra reported in 2014 (4) Crimes 233 (SC). 5. State of H.P. v. Ram Pal reported in 2006 (2) SCC (Cri.), 165 6. Arjun v. State of Maharashtra reported in 2012 Cr.LR. (SC) 506 12. 3. Moorthy v. State of Tamil Nadu, reported in (2010) 3 SCC (Cri) 316. 4. Murlidhar Shivram Patekar & Anr. v. State of Maharashtra reported in 2014 (4) Crimes 233 (SC). 5. State of H.P. v. Ram Pal reported in 2006 (2) SCC (Cri.), 165 6. Arjun v. State of Maharashtra reported in 2012 Cr.LR. (SC) 506 12. Per contra, learned public prosecutor vehemently argued that as per medical evidence, no injuries were found upon the vital part of the body of the deceased, the deceased Chamna Ram died due to the cumulative effect of the injuries caused by the appellants and there is some evidence with regard to land dispute in between the parties, therefore, it cannot be presumed that the finding of guilt recorded by the learned trial court so as to held accused appellants guilty for offence under Section 302 IPC is not made out. More-so, it is a case in which the prosecution has proved its case beyond all reasonable doubt for offence under Section 302 IPC. 13. Learned Public Prosecutor further invited our attention towards statement of PW-13 Uda Ram who lodged the FIR in which he has specifically stated that his father was severely beaten by the accused appellants and due to fear, he left the place of occurrence and came back in the morning and saw that his father was lying dead, therefore, there is no question to disturb the finding of the learned trial court to accept the arguments of the learned counsel for the appellants that offence under Section 302 IPC is not made out, therefore, the learned Public Prosecutor submits that this appeal may kindly be dismissed. 14. After hearing learned counsel for the accused appellants and learned Public Prosecutor, first of all, we have perused the statement of PW-13 Uda Ram, son of the deceased Chamna Ram. The said witness specifically stated that in his presence, quarrel took place in which injuries were caused by the appellants to the deceased but at the same time, this witness categorically accepted that the appellants are real brother of the deceased and the day on which, the incident took place, both the parties were consuming liquor and accepted the fact that complete incident was not seen by him as he left the place of occurrence due to fear. In our opinion, the testimony of this witness is to be seen completely because he is the witness in whose presence, the quarrel took place. 15. We have perused the postmortem report (Exhibit P-32) so also the statement of PW-11 Dr. Kripa Shankar in which he has categorically stated that 10 injuries were found upon the body of the deceased which reads as under:- 1- ihB ij [kjksap dk fu’kku 4 xq.kk 3 ls-eh- 2- nkfguh dksguh ij [kjkSaps 3 ls-eh- xq.kk 1 ls-eh- 3- isV ij lwtu 3 ls-eh- xq.kk 2 ls-eh- 4- nksuks gksasB dVs gq, 5- ck;ha dksguh ij lwtu 4 ls-eh- xq.kk 3 ls-eh- 6- fprjk gqvk ?kko ck;sa dku ij 3 ls-eh- xq.kk 2 ls-eh- xq.kk 1 ls-eh- 7- ck;sa dku ds ihNs lwtu 3 ls-eh- xq.kk 2 ls-eh- xq.kk 1 ls-eh- 8- nk;sa ?kqVus ij [kjkSaps 4 ls-eh- xq.kk 1 ls-eh- 9- ukd ls [kwu vk jgk FkkA 10- ck;sa dku ls [kwu cg jgk FkkA 16. This witness further stated that as per the opinion of the medical board, due to the injuries caused to the deceased, the deceased went in coma and due to shock, the deceased Chamna Ram died. Meaning thereby, there is no opinion of the doctor that any particular injury was the cause of the death and it was opined that the deceased Chama Ram died due to the cumulative effect of the injuries, which is said to be inflicted by the accused appellants. 17. We have also perused the injuries which is found upon the body of the deceased. Apparently, only two injuries are lacerated wound which can be caused by the blunt weapon and admittedly, lathis were recovered from the appellants but upon consideration of the injuries found upon the body of the deceased coupled with the fact that there is no reliable and trustworthy evidence of motive is in existence, we are of the opinion that the finding of the trial court to convict the accused appellants for offence under Section 302 IPC is not sustainable in the eyes of law. However, it is a case in which prosecution has succeeded to prove its case for offence under Section 304 Part-I IPC. 18. We have also perused the judgments cited by the learned counsel for the appellant. 19. However, it is a case in which prosecution has succeeded to prove its case for offence under Section 304 Part-I IPC. 18. We have also perused the judgments cited by the learned counsel for the appellant. 19. In the case of State of H.P. v. Ram Pal (supra), the Hon'ble Supreme Court, gave following finding upon the identical facts. The paras nos. 5 to 8 of the said judgment are as follows: "5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarrelling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW-3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW-3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW-3 first with a knife and then assaulted the deceased twice on his back. 6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW-3. It is at that time the respondent stabbed PW-3 and the deceased. From the above facts stand proved are (a) the deceased went with PW-3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased. 7. From the above facts stand proved are (a) the deceased went with PW-3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased. 7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part-I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice. 8. For the reasons stated, this appeal fails hence dismissed." In the case of Arjun v. State of Maharashtra (supra) the following adjudication is made by the Hon'ble Supreme Court. The paras Nos. 17 and 18 of the said judgment is as under: "17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so. 18. We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence of 10 years to the accused-appellant would meet the ends of justice and it is ordered accordingly. The appeal is accordingly disposed of, altering the sentence awarded." 20. In view of above discussion upon evidence on record, we are of the opinion that the finding of conviction recorded against the accused-appellants for offence under Section 302 IPC deserves to be altered to the offence under Section 304 Part-I IPC. 21. Consequently, the instant appeal is partly allowed, the finding of conviction for the offence under Section 302 IPC recorded against accused appellants, Choga Ram and Pada Ram by Sessions Judge, Rajsamand, vide judgment dated 09.08.2012, is hereby altered to Section 304 Part-I of IPC. The appellants are hereby held guilty for offence under Section 304 Part-I IPC. 21. Consequently, the instant appeal is partly allowed, the finding of conviction for the offence under Section 302 IPC recorded against accused appellants, Choga Ram and Pada Ram by Sessions Judge, Rajsamand, vide judgment dated 09.08.2012, is hereby altered to Section 304 Part-I of IPC. The appellants are hereby held guilty for offence under Section 304 Part-I IPC. The sentence of life imprisonment awarded to the accused appellants is hereby reduced to ten years' rigorous imprisonment. 22. We have also considered the question of compensation to be granted to the wife or legal heirs of deceased Chamna Ram in the light of Section 357-A of Cr.P.C. In our opinion it is a fit case of granting compensation to wife or legal heirs of deceased Chamna Ram, therefore, the appellants are hereby directed to pay compensation of Rs. 1,00,000/- each (Total Rs. 2,00,000/-) to the legal heirs of deceased, Chaman Ram. The said amount may be deposited within a period of two months from the date of receipt of certified copy of this judgment. In default of payment of aforesaid compensation, the accused appellants shall further undergo one year additional rigorous imprisonment. In the event of depositing aforesaid amount, the learned trial court shall disburse the amount of compensation to the wife or legal heirs of the deceased Chamna Ram.