JUDGMENT : 1. The instant criminal appeal has been filed by the accused appellants under Section 374(2) Cr.P.C. against the judgment dated 10.10.2011 passed by learned Addl. Sessions Judge, Raisinghnagar, District Sri Ganganagar in Sessions Case No.13/2009 by which the appellants were acquitted from the offence under Section 307/34, 323/34 and 341 of the IPC but convicted the accused appellant Mohan Lal for the offence under Sections 302 and accused appellants Mangi Lal and Rajendra for the offence 302/34 IPC and following sentence was passed against them: Accused appellant Mohan Lal : Under Section 302 IPC Life imprisonment with fine of Rs.1,000/- and in default of payment of fine to further undergo one month RI. Accused appellants Mangi Lal and Rajendra : Under Section 302/34 IPC Life imprisonment with fine of Rs.1,000/- and in default of payment of fine to further undergo one months RI. 2. As per brief facts of the case FIR no.77/2009 (Ex.P/29) was registered at Police Station Vijaynagar, District Sri Ganganagar upon complaint (Ex.P/28) filed by Richpal. Before filing the above complaint (Ex.P/28), an information was received from Government Hospital at about 1.30 am on 20.3.2009 which is in between the night of 19.3.2009 to 20.3.2009 by the SHO, Police Station Vijaynagar. Upon said information, the SHO went to the hospital, where the complaint (Ex.P/28) was given by the injured eye witness Richpal. Before filing the above complaint (Ex.P/28), an information was received from Government Hospital at about 1.30 am on 20.3.2009 which is in between the night of 19.3.2009 to 20.3.2009 by the SHO, Police Station Vijaynagar. Upon said information, the SHO went to the hospital, where the complaint (Ex.P/28) was given by the injured eye witness Richpal. In the complaint, following allegations were levelled by the complainant against the accused appellants, which reads as under: lsok esa] Jheku~ Fkkuk izHkkjh iqfyl Fkkuk Jh fot;uxj fo"k; & dkuwuh dk;Zokgh pkgus ckcr~A egksn;] fuosnu gS fd eSa izkFkhZ fjNiky iq= jkedj.k uk;d fuoklh 23 thŒchŒ FksM+ dk jgus okyk gwWa esjs edku ds ikl gh esjs ekek lkgcjke iq= [;kyhjke uk;d dk edku gS] lkgcjke dh mlds iM+kslh eksguyky uk;d ls nks rhu fnu ls fdlh ckr dks ysdj fookn py jgk gS] vkt fnukad 20-03-2009 dh xbZ jkf= dks djhc 9 cts eSa esjs ekek lkgcjke ds ?kj ds vkxs vke xyh esa [kM+k Fkk fd ogka eksguyky o mlds yM+ds jktsUnz o ekaxhyky vk x;s esjk ekek lkgcjke vius ?kj ls ckgj jkLrs ij vk;k fd rhuksa us ,d jk; gksdj lkgcjke dks ihVuk 'kq: dj fn;k eksguyky ds gkFk esa idM+h dqYgkM+h ls lkgcjke ds flj esa lkeus ls pksV ekjh o lkgcjke ds fiNs ls jktsUnz us MaMs ls ekjh eSa NqM+kus yxk rks ekaxhyky us vius gkFk esa idM+s MaMs ls esjs flj esa nks okj fd;s gekjs jksus fpYykus ls ;s yksx Hkkx x;s vkokt lqudj vklwjke nsokjke oxSjk vk x;s Fks tks fcUnqflag ljnkj dk VsªDVj Vªksyh ls fot;uxj gkWLihVy ysdj vk;s lkgcjke dh jkLrs esa gh ekSr gks xbZ ftldh yk'k eksjpjh esa j[kokbZ gS] eksguyky ekaxhyky o jktsUnz ds }kjk ,d jk; gksdj jafto'k tku ls ekjus dh uh;r ls lkgcjke ds pksVs ekjus ls mldh ekSr gqbZ gSA esjs Hkh flj esa pksVs yxh gS] fjiksVZ nsrk gwWa dkuwuh dk;Zokgh dh tk,A fjpikyA 3. After registration of the FIR, investigation was conducted and after conclusion of investigation charge-sheet was filed against the accused appellants in the court of Judl. Magistrate, Vijaynagar under Section 302, 307, 323, 341 and 34 IPC. The learned Magistrate committed the case for trial to the court of Addl. Sessions Judge, Raisinghnagar, District Sri Ganganagar. After registration of the FIR, investigation was conducted and after conclusion of investigation charge-sheet was filed against the accused appellants in the court of Judl. Magistrate, Vijaynagar under Section 302, 307, 323, 341 and 34 IPC. The learned Magistrate committed the case for trial to the court of Addl. Sessions Judge, Raisinghnagar, District Sri Ganganagar. The learned trial court after providing an opportunity of hearing framed charge against the accused appellant Mohan Lal under Section 302, 307/34, 323/34 and against accused appellant Mangi Lal under Section 302/34, 307, 323/34 and 341 IPC so also, against accused appellant Rajendra for the offenced under Section 302/34, 307/34, 323/34 and 341 IPC. All the accused appellants denied the charges and prayed for trial. During trial, statements of 12 prosecution witnesses were recorded and after recording evidence of prosecution, statements of the accused appellants were recorded under Section 313 Cr.P.C. All the three accused appellants denied the allegations levelled by the prosecution witnesses, but no evidence was produced by them in defence. 4. After recording evidence, the learned trial court heard final arguments of both the sides and decided the case against the accused appellants vide its judgment dated 10.10.2011 and convicted the accused appellant Mohan Lal was for offence under Section 302 IPC whereas accused appellants Rajendra and Mangi Lal were convicted for offence under Section 302/34 IPC and all the three appellants were acquitted from the other charges levelled against them. 5. The instant appeal has been filed by the accused appellants against their conviction for offences under Sections 302 and 302/34 IPC respectively on various grounds. 6. At the threshold, the learned counsel for the appellants submits that the complainant Richpal who has submitted the written complaint (Ex.P/28) did not turn up before the court to support and prove the allegations levelled in the FIR in-spite of the fact that he was injured eye witness. The daughter of the deceased Krishna did not appear before the court to give statement in support of prosecution case. It is also argued that in the written complaint it is specifically stated by the complainant that after hearing noise of crying, the witness Ashu Ram and Deva Ram came on spot, therefore, accused appellants run away from the place of occurrence, but it is strange that both the witnesses Deva Ram and Ashu Ram turned hostile and did not support the prosecution case. But to hold accused appellant guilty, the learned trial court relied upon the testimony of Smt. Laxmi W/o deceased Sahab Ram and Jai Kishan (PW-10) son of the deceased for offence under Section 302 and 302/34 IPC. There is no evidence that PW-5 Laxmi and PW-10 Jai Kishan were present on spot but learned trial court relied upon the testimony of these two witnesses to convict the accused appellant, therefore, no offence under Section 302 IPC is made out because as per their statements accused appellants came on spot for beating complainant Richpal but said injured eye witness did not turn up before the court to prove the allegations. Both the witnesses said that deceased Sahab Ram went on spot to save Richpal, his sister's son, where accused Mohan Lal inflicted one injury by axe upon his head and there is finding of learned trial court that no other specific injury was found upon the body of the deceased Sahab Ram, therefore, the conviction of the accused appellants for offence under Sections 302 and 302/34 IPC is not sustainable in law. 7. Learned counsel for the appellants vehemently submits that complainant Richpal who lodged the FIR did not appear before the court to prove the allegation and even if the testimony of the witnesses PW-5 Laxmi and PW-10 Jai Kishan, who were not present as per FIR is accepted then also, the offence cannot travel beyond offence under Section 304 Part II of IPC because there is no evidence of motive or intention to cause death of deceased Sahab Ram, more so, as per testimony of these two prosecution witnesses relied upon by the learned trial court, the accused appellants came on spot due to some quarrel arise because goats of appellant entered in the "BADI" of accused appellant and complaint was made by him. It is also submitted that the reason for quarrel was not so serious by which motive to commit murder can be gathered, therefore, the conviction of the accused appellant Mohan Lal for offence under Section 302 IPC and conviction of the accused appellants Mangi Lal and Rajendra may be altered from offence under Section 302/34 IPC to offence under Section 304 Part II IPC and sentence may kindly be reduced to already undergone. In support of his arguments, the learned counsel for the appellants invited our attention towards the judgments of the Hon'ble Supreme Court in the case of State of HP v. Ram Pal reported in (2006) 2 SCC (Cri.) 165, Arjun v. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506, Buddu Singh v. State of Bihar (now Jharkhand) reported in 2011 Cr.L.R. (SC) 519, Dula Ram v. State of Rajasthan reported in 2010 (12) Cr.L.R. (Raj.) 1112 and judgments of this court in the case of Meetha Lal v. State of Rajasthan (D.B. Cr. Appeal No.291/2010), decided on 9.12.2015 and Khemla v. State of Rajasthan (D.B. Cr. Appeal No.382/2006), decided on 21.1.2016. 8. Per contra, learned Public Prosecutor submits that although the author of the FIR who was injured eye witness did not turn up before the court but his allegations are corroborated from the oral evidence of PW-5 Smt. Laxmi wife of deceased Sahab Ram and PW-10 Jai Kishan son of deceased Sahab Ram coupled with the statements of the Dr. Ram Gopal Kumawat (PW-6). Therefore, there is no question to disbelieve the testimony of the prosecution witnesses so as to reassess the finding of the learned trial court whereby the accused appellants were held guilty for commission of offence under Section 302 and 302/34 IPC respectively. Learned Public Prosecutor vehemently argued that the finding of the learned trial court does not require interference in view of the fact that there is ample evidence of eye witnesses which is corroborated by the medical evidence. Therefore, this appeal may kindly be dismissed. 9. After hearing the learned counsel for the parties, we have perused the statements of the prosecution witnesses. Admittedly, the FIR was registered upon complaint (Ex.P/28) filed by the Richpal who was injured eye witness. The said complainant did not turn up before the court to substantiate or support the prosecution case. It is also very material fact that in the FIR, there is no disclosure for the presence of PW-5 Smt. Laxmi or PW-10 Jai Kishan on spot. More so, the name of two other persons were disclosed in the FIR who came on spot soon after the occurrence, those are Deva Ram (PW-1) and Ashu Ram (PW-2). Both above witnesses turned hostile and did not support the prosecution case. More so, the name of two other persons were disclosed in the FIR who came on spot soon after the occurrence, those are Deva Ram (PW-1) and Ashu Ram (PW-2). Both above witnesses turned hostile and did not support the prosecution case. More so, they completely denied the occurrence and said that neither they heard any noise in the night of 20.3.2009 nor they went on spot and see the incident. 10. The witnesses PW-3 Topan Ram and PW-4 Raju Ram are the witnesses before whom the recovery of stick (Danda) and Gandasi were made, both these witnesses turned hostile and did not support the prosecution case. 11. 10. The witnesses PW-3 Topan Ram and PW-4 Raju Ram are the witnesses before whom the recovery of stick (Danda) and Gandasi were made, both these witnesses turned hostile and did not support the prosecution case. 11. The PW-5 Laxmi is claiming that at the time of incident I was present and gave following statements in the examination in chief, which reads as under: ^^?kVuk 19-03-2009 ds 'kke ds 9-00 cts dh gSA ml oDr eSa esjs ?kj ij FkhA esjs ?kj ij ml oDr esjk HkkbZ dk'khjke eq>s NksM+us vk;k gqvk FkkA ml fnu esa chdkusj ls vkbZ FkhA esjs ?kj ij ml fnu esjk yM+dk t;fd'ku] yM+dh d`".kk Fks ge vkdj pk; ih jgs Fks rks fjNiky vk x;kA fjNiky esjh uun dk yM+dk gS tks ?kj ij vk x;k FkkA igys fjNiky esjs ?kj ls ckgj x;k mlds ckn esjk ifr ?kj ls ckgj x;kA fjNiky dks jktsUnz o ekaxhyky us idM+ fy;kA esjk ifr fudyk rc eksguyky vk x;kA esjk ifr ckgj x;k rc jktsUnz us ihNs ls ekjhA esjk ifr ?kj ls rc fudyk rc fjNiky ds ekaxhyky o jktsUnz xys iM+s FksA fjNiky ds ekaxhyky o jktsUnz us pksV ekjhA pksV flj esa MaMs dh ekjhA fQj esjs ifr ds eksguyky us flj esa dqYgkM+h dh ekjh] vkSj jktsUnz us MaMs dh pksV flj ds ihNs ekjhA blls esjk ifr uhps fxj x;kA fQj esjs ifr ds fxjs gq, ds eawnh dqYgkM+h dh Nkrh ekjh vkSj fxjs gq, ds lHkh eqyfteku us ekjihV dhA eqfYteku rhuksa gekjs iM+kslh gS tks gekjs ?kj ds Bhd lkeus jgrs gSA gekjs ?kj esa ckM+h yxkbZ gqbZ Fkh ckM+h esa eqfYteku dh cdfj;ka ?kql xbZ Fkh rks esjs ifr us cdfj;ka ?kqlus dk vksyek fn;k FkkA mlls oks ukjkt gks x;s mlh jaft'k dks ysdj ds gh ekjihV esjs ifr o fjNiky ds lkFk dh vkSj ftlls esjs ifr dh e`R;q gks x;hA ?kVuk ij eSa o esjs cPps Fks ge ?kVuk ds ckn jksus yxs rks eqfYteku ogka ls Hkkx x;sA** Even perusal of the above statements, it is obvious that the accused appellants went on spot due to some quarrel and dispute with regard to entering goats in the Dhani and in fact, quarrel was made with Richpal, author of the FIR and injured witness but in the said incident, injuries were caused to Sahab Ram, therefore, he died. 12. PW-6 Dr. 12. PW-6 Dr. Ram Gopal Kumawat stated in his statement that post mortem of deceased Sahab Ram was conducted by him in which in all four injuries were found upon the body of the deceased, out of which injury no.1 caused upon frontal bone of head was sufficient to cause death. The other three contusions were simple in nature. Meaning thereby, cause of death was head injury for which allegations is levelled by the witnesses PW-5 Laxmi and PW-10 Jai Kishan against accused appellant Mohan Lal. There is no allegation against Mohan Lal for repeated blow, so also, occurrence took place all of sudden. There was no pre-meditation, more so, as per prosecution case the appellants went on spot to beat Richpal, who did not appear before the court and in that incident injuries were caused to his maternal uncle Sahab Ram, who died subsequently. Meaning thereby, it is a case in which there was no intention of the accused appellants to cause any injury to deceased Sahab Ram but he was hit when he came on spot to save Richpal in front of his house. Therefore, while considering the prayer of the accused appellants, we are of the opinion that it is a fit case in which conviction under Section 302 and 302/34 IPC recorded by the learned trial court deserves to be altered to offence under Section 304 Part I IPC. 13. In the case of State of HP v. Ram Pal reported in (2006) 2 SCC (Cri.) 165, 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 quarreling 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. 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." 14. In the case of Buddhu Singh v. State of Bihar (now Jharkhand) reported in 2011 Cr. L.R. (SC) page 519 the Hon'ble Supreme Court gave following verdict in paras nos. 6 to 9, which reads as under: "6. Mr. Ajit Pandey, learned counsel appearing for the accused persons contended that firstly this was a case of single blow and the blow could not have been intended to be given on the head though it did land on the head. Mr. 6 to 9, which reads as under: "6. Mr. Ajit Pandey, learned counsel appearing for the accused persons contended that firstly this was a case of single blow and the blow could not have been intended to be given on the head though it did land on the head. Mr. Pandey further argued that if the intention was to commit the murder, then the accused persons, more particularly accused Buddhu Singh would have repeated the assault which he actually and admittedly did not repeat. 7. Mr. Pandey further contended that once the injury was unintended, the offence could be converted into Section 304 Part II IPC from Section 302 IPC because the accused ought to have the knowledge that a single assault by an axe could result into the death of the deceased. 8. Mr. Manish Mohan, learned counsel appearing for the State supported the judgment and contended that the injury was serious enough and was on a very vital part i.e. head and resulted in the fracture of frontal bone and the death was almost instantaneous, though in the hospital. 9. Considering the overall material, we are of the view that there is hardly anything on record which can be said against the accused Ledwa Singh and Balchand Singh though the common intention on their part could be attributed since they had done the over act of grappling with and pinning down the deceased. Now, seeing his father and brother had been grappling with the deceased, the accused Buddhu Singh dealt an axe blow which could not be said to be intended towards the head. It could have landed anywhere. However, it landed on the head of the deceased. Therefore, the element of intention is ruled out. Again the defence raised on behalf of the accused that there could not have been the intention to commit the murder of the deceased is justified by the fact that the accused Buddhu Singh did not repeat the assault. Under the circumstances, we feel that the prosecution has been able to establish the guilt of the accused persons under Section 304 Part II I.P.C." 15. Under the circumstances, we feel that the prosecution has been able to establish the guilt of the accused persons under Section 304 Part II I.P.C." 15. The Hon'ble Apex Court in the case of Arjun v. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 held that if motive is absent and there was allegation of prosecution for inflicting one injury may be that too by force, then also no offence under Section 302 IPC is said to be made out because offence cannot travel beyond offence under Section 304 Part I IPC. The relevant para No.17 of the said judgment is quoted herein below for ready reference: - "17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat and 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 forth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part I IPC and we do so." 16. In view of aforesaid discussion and evidence on record there is no evidence on record to prove that accused appellant came on spot with intention to kill deceased Sahab Ram. The injured eye witness Richpal, who lodged the FIR did not turn in the court to prove the allegation and PW-5 Laxmi admitted in her statement that goats of accused appellant entered in the "Badi", therefore, complaint was made by my husband, therefore, quarrel took place. It is also one of the fact that all of sudden when deceased went out of the house where quarrel going on between the accused appellants and Richpal, in which injuries were caused to him which resulted into his death, therefore, considering the overall material evidence on record, we are of the opinion that it is a fit case to alter the conviction of the accused appellants from the offence under Sections 302 and 302/34 IPC to the Section 304 Part II IPC and to reduce the sentence already undergone. All the three accused appellants Mohan Lal, Rajendra and Mangi Lal were arrested on 20.3.2009. The accused appellant Mohan Lal is in custody from the date of his arrest. All the three accused appellants Mohan Lal, Rajendra and Mangi Lal were arrested on 20.3.2009. The accused appellant Mohan Lal is in custody from the date of his arrest. The accused appellant Rajendra remained in custody from 20.3.2009 to 12.12.2014 and accused appellant Mangi Lal remained in custody from 20.3.2009 to 20.3.2014. 17. In view of above discussion, the instant appeal is partly allowed. The conviction of the accused appellants for offence under Section 302 and 302/34 IPC imposed by the learned Addl. Sessions Judge, Raisinghnagar, District Sri Ganganagar vide judgment dated 10.10.2011 in Sessions Case No.13/2009 is hereby altered to Section 304 Part II of IPC and the sentence of life imprisonment is hereby reduced to already undergone while maintaining the order of fine.