JUDGMENT : Gopal Krishan Vyas, J. 1. The instant Cr. Appeal has been filed by the accused appellant Binder Singh S/o. Gurcharan Singh under Section 374(2) Cr.P.C. to assail the validity of the judgment dated 5.6.2008 passed by the learned Addl. District & Sessions Judge (FT) No. 1, Hanumangarh by which the learned trial court convicted the accused appellant for offence under Section 302 IPC and passed the following sentence: "Under Section 302 IPC -- Life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo three months RI." 2. As per brief facts of the case, upon written complaint (Ex. P/1) filed on 5.3.2006 by the PW-2 Mohd. Iqbal, real brother of the deceased Surendra, FIR No. 140/2006 was registered at Police Station, Hanumangarh Town against the accused appellant. In the FIR an allegation was levelled that today on 5.3.2006 at about 7.00 pm, deceased Surendra come to his house and went back at 8.30 pm informing that I am going to bus stand. The deceased Surendra did not return till 10.00 pm, then upon asking, the complainant went to the bus stand to search his brother Surendra. When complainant reached at bus stand, 2-3 persons came running from the inside of bus stand and informed him that accused appellant Binder Singh is beating to Surendra and Babu. The complainant immediately rushed inside the bus stand and saw that accused appellant Binder S/o. Gurcharan Singh was inflicting blow upon Surendra and Bopy Kashyap by iron rod. 3. As per complainant, PW-1 Bopy Kashyap, brother of Babu Kashyap was trying to convenience accused appellant Binder Singh not to make quarrel and caused injury, but accused appellant Binder Singh did not hear him and inflicted injuries upon the heads of Surendra and Babu Kashyap both by iron road. Due to those injuries, both the persons fell down on the ground, at that time, Mukhiya S/o. Murti Bihari, Jabbardeen S/o. Sadiq Khan, Manoj Kumar, Billa S/o. Ranga Ram Bill and Sanju S/o. Kali Ram came on spot and accused appellant Binder Singh run away from the place of occurrence. 4. The aforesaid complaint was filed on spot by Mohd. Iqbal (PW-2) at 11.50 pm, upon that complaint, FIR was registered at 12.15 pm by the SHO Police Station Hanumangarh. After registration of the FIR, investigation was commenced, first of all site plant (Ex. 4. The aforesaid complaint was filed on spot by Mohd. Iqbal (PW-2) at 11.50 pm, upon that complaint, FIR was registered at 12.15 pm by the SHO Police Station Hanumangarh. After registration of the FIR, investigation was commenced, first of all site plant (Ex. P/2) was prepared at 7.15 am on 6.3.2006 and other proceedings i.e., detail condition of the body of deceased Babu Kashyap was prepared vide Ex. P/3 and detail condition of the body of deceased Surendra was recorded vide Ex. P/8 on 6.3.2006 on spot. The inquest reports were also prepared by the investigating officer on site and, thereafter bodies of both the deceased were taken to the hospital for post mortem where after examination, the post mortem repots of deceased Babu Kashyap (Ex. P/13) and of deceased Surendra (Ex. P/36) of deceased Surendra were prepared and handed over to the investigating officer by the medical jurist of Government Hospital, Hanumangarh. The accused appellant Binder Singh was arrested vide Ex. P/39 on 6.3.2006 in front of two witnesses namely Bhagwan Das and Narendra at 6.00 pm. After arrest upon information given by him, iron rod was recovered vide Ex. P/5 from the house of the accused appellant on 8.3.2006. Similarly, the cloths of the accused appellant were also recovered vide Ex. P/6 as per his information. The recoveries were made in presence of two witnesses Bapi Kashyap and Diwan Khan. 5. In the investigation, statements of all witnesses including eye witnesses were recorded under Section161 Cr.P.C. and after completion of investigation, charge-sheet was filed against the accused appellant in the court of Addl. Chief Judicial Magistrate, Hanumangarh from where case was committed to the court of Sessions Judge, Hanumangarh for trial. 6. The learned Sessions Judge transferred the case for trial to the court of Addl. District & Sessions Judge (FT) No. 1, Hanumangarh where trial was commenced. 7. In the trial, charge under Section 302 IPC was framed against the accused appellant after providing an opportunity of hearing by the learned trial court, but accused appellant denied the charge and prayed for trial. In the trial, the statements of 11 prosecution witnesses were recorded and after recording statement of prosecution witnesses, the learned trial court proceeded to record the statement of accused appellant under Section 313 Cr.P.C. In the statement accused appellant denied all the charges levelled against him. In the trial, the statements of 11 prosecution witnesses were recorded and after recording statement of prosecution witnesses, the learned trial court proceeded to record the statement of accused appellant under Section 313 Cr.P.C. In the statement accused appellant denied all the charges levelled against him. The opportunity to lead evidence in defence was granted to him, therefore, in defence four witnesses DW-1 Pal Ram, DW-2 Balwant Singh, DW-3 Shiv Kumar and DW-4 Sajjan Singh were produced. 8. The learned trial court after recording evidence of both the side finally heard the arguments and convicted the accused appellant and passed sentence for committing offence under Section 302 IPC for life imprisonment alongwith fine of Rs. 5,000/- vide judgment dated 5.6.2008 passed in Sessions Case No. 137/2006 (31/2006). The said judgment is under challenge in this appeal. 9. Learned counsel for the appellant submits that whole prosecution story is based upon testimony of eye witnesses, but their statements cannot be relied upon because they are close relatives of both the deceased. As per learned counsel for the appellant the witness PW-1 Bopy Kashyap and PW-3 Sanju are cousin brothers of deceased Babu Kashyap and author of FIR PW- 2 Mohd. Iqbal is the real brother of the deceased Surendra. Similarly, PW-6 Jabbardeen is brother-in-law of deceased Surendra and PW-4 Mukhiya is the owner of ice cream pallor situated on the bus stand. All the witnesses are interested witnesses, therefore their presence is seriously doubtful upon the place of occurrence because as per prosecution case, occurrence took place at 10.30 pm in the night, that too, at bus stand, which is public place but none of the independent witnesses turned to support the incident in which two young persons were killed on the public place. Learned counsel for the appellant further submits that according to the facts of prosecution story five persons were present at the time of occurrence then why they did not intervene to save both the deceased because they are alleging that accused appellant inflicted injury by iron rod upon their heads in presence of them, therefore, whole prosecution case is doubtful. 10. Learned counsel for the appellant vehemently argued that the story of prosecution is seriously doubtful, therefore, the finding of the learned trial court based upon the testimony of so called eye witnesses PW-1 Bopy Kashyap, PW-2 Mohd. 10. Learned counsel for the appellant vehemently argued that the story of prosecution is seriously doubtful, therefore, the finding of the learned trial court based upon the testimony of so called eye witnesses PW-1 Bopy Kashyap, PW-2 Mohd. Iqbal, PW-3 Sanju, PW-4 Mukhiya and PW-6 Jabbardeen deserves to be disbelieved. It is also pointed out that iron rod and blood stained cloths of the accused appellant were recovered in front of two witnesses PW-1 Bopy Kashyap and PW-5 Deewan Khan, but both the witnesses are close relatives of the deceased Babu and Surendra, therefore, it cannot be said that prosecution has proved the recovery of blood stained iron rod and cloths of the accused appellant on 8.3.2006 vide Ex. P/5 and P/6 respectively beyond doubt. Learned counsel for the appellant submits that as per statement of SHO Antar Singh (PW-11) when he reached on spot, no one was present whereas all the eye witnesses stated before the court that information was given by them to the police and police came on spot after occurrence took place, at that time, Binder Singh was not on spot. The crux of argument of learned counsel for the appellant is that whole prosecution story is doubtful because none of the eye witnesses is independent witnesses, so also there is major contradiction in their statements with regard to their presence on spot or upon the fact that who came on spot first. 11. While inviting attention of this court towards four witnesses produced as defence witnesses, DW-1 Pal Ram, DW-2 Balwant Singh, DW-3 Shiv Kumar and DW-4 Sajjan Singh it is stated that shops of all the four witnesses is situated at bus stand where they are doing business, they categorically gave statements before the court on oath that till 11'O clock no incident took place at bus stand on 5.3.2006. Therefore, it is obvious that all the independent witnesses of defence categorically stated on oath that no incident took place till 11.00 pm in the night on 5.3.2006 whereas all the five eye witnesses of the prosecution stated before the court that incident took place before 11'O Clock. In view of the above evidence, whole prosecution story became doubtful because time of incident and involvement of the accused appellant has not been proved beyond reasonable doubt. Therefore, the judgment impugned may kindly be quashed. 12. In view of the above evidence, whole prosecution story became doubtful because time of incident and involvement of the accused appellant has not been proved beyond reasonable doubt. Therefore, the judgment impugned may kindly be quashed. 12. In the alternative, the learned counsel for the appellant submit the even if the testimony of interested eye witnesses is accepted then also finding of guilt recorded against the accused appellant for offence under Section 302 IPC is not sustainable because as per prosecution case, accused appellant inflicted one injury each upon the heads of both the deceased Surendra and Babu by iron rod and ran away, there is no evidence of motive, therefore, in absence of pre-meditation and motive, finding of conviction recorded by the learned trial court for offence under Section 302 IPC is not sustainable in law and it can be altered to offence under Section 304 Part I IPC. In support of his arguments, learned counsel for the appellant invited our attention towards the judgments in the case of Ahmed Shan & Another v. State of Rajasthan, reported in (2015) 3 SCC 93 , Prabhkar Vithal Gholve v. State of Maharashtra, reported in AIR 2016 SC 2292 and Poona v. State of Rajasthan, reported in 2016 (3) R.Cr.D. 136 (Raj) and submits that as per the verdict of aforesaid judgments, the conviction recorded against the accused appellant under Section 302 IPC may be converted to offence under Section 304 Part I IPC and sentence may be reduced from life imprisonment to already undergone. 13. Per contra, learned Public Prosecutor vehemently argued that it is very serious case in which two persons namely Surendra and Babu were killed on public place, which is bus stand, inflicting injuries by iron road upon the head of both the injured. As per prosecution case, five eye witnesses went on spot to search both the deceased because they left the house in the evening while saying that they are going to bus stand and did not come back to their home upto 10'O Clock in the night at bus stand occurrence took place in their presence. The evidence of eye witnesses proved the case. 14. Learned Public Prosecutor argued that there is no strength in the argument of learned counsel for the appellant that testimony of theses witnesses cannot be relied upon for the reason that they are close relative. The evidence of eye witnesses proved the case. 14. Learned Public Prosecutor argued that there is no strength in the argument of learned counsel for the appellant that testimony of theses witnesses cannot be relied upon for the reason that they are close relative. In fact, their presence cannot be doubted for the reason narrated by them in their statements on oath. All the five eye witnesses categorically deposed in their statements before the court that in front of them accused appellant inflicted head injuries by iron rod to both the deceased Surendra and Babu. It is true that there is no evidence of motive or intention of the accused appellant to cause injuries, but at the same time, it is required to be considered that upon iron rod and cloths of the accused appellant blood was found and in FSL report although group of blood was not ascertained, but it is specifically reported that human blood was found upon the iron rod and cloths of the accused appellant and cloths of the deceased and soil collected from the site, therefore, finding of guilt recorded by the learned trial court is based upon sound appreciation of evidence. 15. Learned Public Prosecutor submits that investigation was conducted fairly, on spot written complaint (Ex. P/1) was submitted by the PW-2 Mohd. Iqbal at 11.50 pm on 5.3.2006, the written complaint was sent through Constable Subhash Chandra to the Police Station Hanumangarh where FIR No. 140/2006 was registered under Section 302 IPC against the accused appellant. In the complaint specific allegations were levelled by the eye witness PW-2 Mohd. Iqbal, before whom incident took place and corroborated by the other trustworthy witnesses, therefore, there is no question to disbelieve the testimony of eye witnesses, which is relied upon by the learned trial court so as to convict the accused appellant for offence under Section 302 IPC. 16. Lastly, it is argued that upon assessment of evidence from any angle it cannot be that it is a case of culpable homicide not amounting to murder because as per seriousness of the incident, it is a case of murder even in absence of evidence of motive, therefore, this appeal may kindly be dismissed. 16. Lastly, it is argued that upon assessment of evidence from any angle it cannot be that it is a case of culpable homicide not amounting to murder because as per seriousness of the incident, it is a case of murder even in absence of evidence of motive, therefore, this appeal may kindly be dismissed. In support of his arguments, learned Public Prosecutor invited our attention towards the judgments in the case of Vinay Kumar Rai & Another v. State of Bihar, reported in 2008 Cri.L.J. 4319, State of A.P. v. S. Rajappa & Others, reported in 2006 Cri. L.J. 1616, Dr. C.S. Nagalakshmamma v. State of Karnataka, reported in 2008 Cri. L.J. (NOC) 333 (KAR.) D. Shailu v. State of Andhra Pradesh, reported in 2008 Cri. L.J. 686, Gali Venkataiah v. State of Andhra Pradesh, reported in 2008 Cri. L.J. 690 and Ujjagar Singh v. State of Punjab, reported in 2008 Cri. L.J. 808. 17. After hearing the learned counsel for the parties, we have perused the evidence and finding of the learned trial court, upon which the learned trial court held accused appellant guilty under Section 302 IPC. It is admitted fact that PW-1 Bopy Kashyap and PW-3 Sanjay are cousin brothers of deceased Babu, but after perusal of their statements, their testimony cannot be disbelieved because these witnesses specifically said that occurrence took place in front of them, admittedly witness PW-1 Bopy Kashyap went on spot and tried to convince the accused appellant not to make any quarrel but while giving threat to witness PW-1 Bopy Kashyap, accused appellant inflicted injury by rod upon heads of both the deceased. 18. We have perused the statements of PW-2 Mohd. Iqbal, author of FIR. The said witness categorically deposed in his statement that he went on spot to search his brother Surendra because his brother did not returned back till 10'O Clock from bus stand, the said witness reached at bus stand and he saw that 2-3 persons came running from inside the bus sand, they asked witness PW-2 Mohd. Iqbal that Binder Singh is beating Surendra inside the bus stand, when this witness entered in the bus stand, he saw that PW-1 Bopy Kashyap was trying to convince accused appellant Binder Singh to not to make quarrel and cause injury to Surendra and Babu. Meaning thereby, the witness PW-2 Mohd. Iqbal that Binder Singh is beating Surendra inside the bus stand, when this witness entered in the bus stand, he saw that PW-1 Bopy Kashyap was trying to convince accused appellant Binder Singh to not to make quarrel and cause injury to Surendra and Babu. Meaning thereby, the witness PW-2 Mohd. Iqbal has proved the incident on oath because he was present when occurrence took place. 19. PW-3 Sanju though is close relative of deceased Babu, but the said witness categorically stated before the court on oath that accused appellant was having iron rod in his hand and I and Kali made all efforts to restrain him to inflict injury but Binder Singh run behind them to cause injury and, thereafter, inflicted injuries by iron road upon the heads of deceased Babu and Surendra at bus stand, which resulted into death on spot. 20. PW-4 Mukhiya is the independent business doing business at bus stand. The said witness categorically supported prosecution case. PW-6 Jabbardeen though is brother-in-law of deceased Surendra but upon perusal of his statement, his testimony cannot be disbelieved because he is supporting the allegation of all the eye witnesses and he was also present when occurrence took place. 21. With regard to recovery of iron road and cloths, we have perused the recovery memo (Ex. P/5 and P/6). The recoveries of iron rod and blood stained cloths of the accused appellant at the instance of accused has been proved because recoveries were made in front of two witnesses PW-1 Bopy Kashyap and PW-5 Deewan Khan, so also, investigating officer PW-11 Antar Singh all the three witnesses said on oath that these articles were recovered in their presence. The recovered articles, iron rod and blood stained cloths were sent for examination to the FSL and vide Ex. P/42 it is reported by the FSL on 8.6.2006 that human blood was found upon all the articles. Meaning thereby, the presence of blood upon all the articles including iron rod and cloths of the accused appellant and both the deceased loudly speaks that accused appellant Binder Singh inflicted injuries upon the head of both the deceased by iron rod, due to those injuries both the injured died on spot. 22. Meaning thereby, the presence of blood upon all the articles including iron rod and cloths of the accused appellant and both the deceased loudly speaks that accused appellant Binder Singh inflicted injuries upon the head of both the deceased by iron rod, due to those injuries both the injured died on spot. 22. In view of the above discussion, we have no hesitation to hold that no error has been committed by the learned trial court so as to accept the testimony of all the witnesses including eye witnesses and recovery of articles so as to accept the prosecution case. 23. We have considered the alternate prayer made by the learned counsel for the appellant to convert the conviction from offence under Section 302 IPC to Section 304 Part I IPC in the light of all the judgments cited by the learned counsel for the appellant. 24. It is true that in view of the few judgments cited by the learned counsel for the appellant in absence of evidence of motive, offence can be converted from offence under Section 302 IPC to Section 304 Part I IPC, but in the present case, heavy iron rod (Ex. P/5) which is said to be used by the accused appellant to cause injuries has been recovered at the instance of the accused appellant the prayer to alter the finding of guilt cannot be accepted due to nature of injuries caused to two persons. 25. PW-10 Dr. Jaspal who has performed the post mortem of both the deceased gave following opinion in Ex. P/35 and P/36 for cause of death of both the deceased, which reads as under: "Ex. P/35: In my opinion the cause of death is due to injury to vital organs like brain tissues causes hemorrhage, shock leads to death. Injury No. 1 is sufficient to cause death in ordinary course of nature of life. All injuries are anti mortem in nature and caused by heavy blunt object." "Ex. P/36: In my opinion the cause of death is due to injury to vital organs like brain tissues causes hemorrhage, shock leads to death. Injury No. 1 is sufficient to cause death in ordinary course of nature of life. Injuries are by blunt heavy object. All injuries injury are anti mortem in nature." 26. P/36: In my opinion the cause of death is due to injury to vital organs like brain tissues causes hemorrhage, shock leads to death. Injury No. 1 is sufficient to cause death in ordinary course of nature of life. Injuries are by blunt heavy object. All injuries injury are anti mortem in nature." 26. After perusing the aforesaid opinions given by the doctor in the post mortem report coupled with the evidence of eye witnesses, we are of the opinion that intention of the accused appellant can be gathered from the serious injuries caused forcefully by iron rod, which resulted into death. It is true that in absence of motive, if occurrence took place in spur of moment and all of sudden, in which deceased died then conviction for offence under Section 302 IPC can be converted to offence under Section 304 Part I IPC, but in this case, prosecution has proved the occurrence in which accused appellant inflicted serious injuries by iron rod upon two young boys, that too, upon their heads which is vital part of the body and due to those injuries deceased Surendra and Babu fell down on ground of bus stand and died. We have perused the photographs of dead body taken from place of occurrence. In our opinion, intention to commit offence of murder is obvious, therefore, even though there is no specific evidence of motive on record, but we are not inclined to accept the prayer of the accused appellant to convert the conviction from offence under Section 302 IPC to Section 304 Part I IPC because it is a case in which due to inhuman and cruel act of the accused appellant two young persons died, therefore, this appeal lacks merit. 27. In view of the above discussion, the instant appeal filed by the accused appellant is hereby dismissed.