JUDGMENT : Goverdhan Bardhar, J. 1. The present criminal appeal has been filed under Section 374 Cr.P.C. against the judgment dated 30.06.1989 passed by learned Sessions Judge, Merta in Sessions Trial No. 56/1987 whereby the learned trial Court convicted the Appellants Jeewan Ram and Baludi for offence under Section 302 IPC and Appellant Misahri lal for offence under Section 302/34 IPC and sentenced them to undergo life imprisonment alongwith fine of Rs. 5000/- each alongwith default stipulation. 2. As per brief facts of the case, on 16.09.1987 at 2:30 pm an FIR came to be lodged by one Pukhraj S/o. Ramdeen at Police station Degana to the effect that on 16.09.1987 his goat which was left for grazing in the morning entered the field of Jeewan Ram. As per complainant, when the goat did not return, he went in search of it and found the goat tied under a Babool tree and Jeewan Ram standing there. When Jeewan Ram was questioned and asked to release the goat, the complainant was asked to bring his father. On giving the information, Ramdeen accompanied his son to the field of Jeewan Ram and asked to return the goat upon which Jeewan Ram, his wife Baludi, his brother Misa Ram, another son Narsa Ram and Moola Ram, brother-in-law of Jeewan Ram caught hold of Ramdeen and dragged him into the 'jaw'. Baludi and Jeewan Ram assaulted Ramdeen with handle of Kassi and Misa Ram & Narsa Ram assaulted with lathi. It is also alleged that Jeewan Ram's brother-in-law Moola Ram also assaulted lathi. Upon raising hue and cry, Surjan and Ram Kunwar reached on the spot, however by that time his father Ramdeen was dead. 3. On the basis of said complaint, the Police registered FIR against the accused-appellants for offences under Sections 147, 148, 149, 302, 323 IPC 447 and 147 and commenced investigation. After hearing the arguments and considering the material on record, the learned trial court framed charges against accused-appellant for the aforesaid offences, who pleaded not guilty and claimed trial. 4. During trial, the prosecution examined 11 witnesses and produced 30 documentary evidence in support of its case. Thereafter the statement of the accused-appellants were recorded under section 313 Cr.P.C. In defence, two witnesses DW/1 Dr. Tulsi Ram and DW/2 Moola Ram were examined. 5. 4. During trial, the prosecution examined 11 witnesses and produced 30 documentary evidence in support of its case. Thereafter the statement of the accused-appellants were recorded under section 313 Cr.P.C. In defence, two witnesses DW/1 Dr. Tulsi Ram and DW/2 Moola Ram were examined. 5. On the basis of evidence on record, the learned trial court convicted and sentenced the accused Appellants to life imprisonment and fine as aforesaid. 6. Counsel for the Appellants submitted that the learned Trial Judge did not scrutinize the evidence of PW/8 Pukhraj in the light of facts available on record and has ignored the inherent infirmities and improbabilities appearing in his evidence. PW/8 Pukhraj is not at all a witness of sterling worth and in fact he is a highly interested witness and his presence at the time of incident is not established beyond all manner of doubt. Rather from the statement of PW/5 Harka Ram it is established that he came to the scene of occurrence from his house after the incident was over. Thus, the statement of PW/8 Pukhraj is full of contradictions. Moreover he has resiled from his police statement Exhibit D/1 on very material points. It is further argued that he has failed to explain the injuries on the person of Smt. Baludi and therefore, no reliance can be placed on the testimony of PW/8. It is further argued that injuries sustained by Smt. Baludi tell an entirely different story of indecent assault attributed to the deceased Ramdeen. DW/1 Dr. Tulcha Ram has also categorically stated that such injuries could be sustained by a woman in the course of resistance offered at the time of rape and these injuries could not be self-inflicted. 7. It is further argued that in the 'Fard Surat haal' it is categorically mentioned that deceased Ramdeen was having knife in his grip which fact has been proved by the testimony of other prosecution witnesses. However, the learned Trial Judge rejected this contention on wholly wrong premises. It is argued that according to PW/8 Pukhraj, Surjan and Ramkunwar had also seen the accused leaving the site of occurrence but these two important witnesses have not been examined by the prosecution, therefore, adverse inference is ought to have been drawn against prosecution. However, the learned Trial Judge rejected this contention on wholly wrong premises. It is argued that according to PW/8 Pukhraj, Surjan and Ramkunwar had also seen the accused leaving the site of occurrence but these two important witnesses have not been examined by the prosecution, therefore, adverse inference is ought to have been drawn against prosecution. PW/8 Pukhraj also did not explain as to what happened to the she-goat and therefore, the theory that the deceased went inside the field to ask about the goat is only to cover up the fact that he went to molest Appellant No. 2 as there is no allegation that he was assaulted at the gate. It is further submitted that as per FIR, Moola Ram also assaulted the deceased but he has not been charge-sheeted. The evidence of PW/8 Pukhraj is further not reliable as he has stated that he is not aware of his father's conviction whereas, both his parents were accused and faced trial in Sessions Case No. 40/1980 and deceased Ramdeen was convicted vide judgment dated 31.07.1981 which is produced in defence as Ex. D/3. As per statement of PW/8 Pukhraj, he met his father on the way and complained him that accused are not returning the she-goat which they have tied to a Babool tree whereas, as per site map Ex. P/6, in the field, place 'A' is the site of occurrence, 'E' is the water pond and gate is at 'B' and the distance of field of PW/8 and accused is 3/4 km but there is no description of the she-goat. 8. Per contra, learned Counsel for the State argued that PW/8 Pukhraj is an injured witness and PW/5 Harka Ram has supported his statement and as per injury report of PW/8, his presence at the time of incident is established. PW/6 Dr. Kailash Chandra Mathur who conducted the postmortem Exhibit P/12 has opined that cause of death of Ramdeen is due to head injury leading to haemorrhage and shock. However, accused failed to offer an appropriate explanation under Section 313 Cr.P.C with respect to incident confirmed by witnesses, particularly in respect of what happened to Ramdeen whose dead body was found in the field of accused Jeewan Ram and if there is no description of goat in the site plan, it could be a mere inadvertent lapse in investigation. However, accused failed to offer an appropriate explanation under Section 313 Cr.P.C with respect to incident confirmed by witnesses, particularly in respect of what happened to Ramdeen whose dead body was found in the field of accused Jeewan Ram and if there is no description of goat in the site plan, it could be a mere inadvertent lapse in investigation. Therefore, the learned Trial Judge has rightly relied upon the evidence of PW/8 and PW/5 in convicting the accused Appellants which does not call for any interference. 9. We have considered the submissions on behalf of parties and carefully scanned the material on record, exhibits and the deposition of witnesses. 10. As per postmortem report Ex. P/12, following injuries were found on the body of deceased Ramdeen: "(1) Lacerated wound of 9 cm X 2.2 cm X brain deep oblique on left temporal parietal region extending from 4 cm above left ear upwards medial to parietal region with fraction of temporal and parietal bone of left side brain matter is coming out of the bone with laceration towards lying wound 4 muscle and vessels - grievous blunt. (2) Lacerated wound :- 4 cm X 1.5 cm skull deep on left side occipital region oblique with fraction of left occipital bone. (3) Lacerated wound of 13 cm X 4 cm X brain deep cooked on middle of left side occipital region extending to right side occipital region with injury to underlying membrane and brain matter with multiple fraction of occipital bone and fraction of right temporal and parietal bones caused by blunt object. (4) Abrasion - 7 cm X 7 cm on middle of back of left leg. (5) Abrasion - 5 cm X 3 cm on left leg just above injury No. 4. (6) Abrasion - 1 cm X 5 cm on back of middle of right leg. (7) Bruises - 15 cm X 3 cm oblique on back right side chest below scapula region. (8) Bruises - 10 cm X 3 cm oblique parallel to injury No. 7. (9) Bruises - 5 cm X 2 cm on right renal area. (10) Bruises - 10 cm X 3 cm on left side back of chest." 11. PW/8 Pukhraj who is the son of deceased Ramdeen in his evidence has stated that on the fateful day he untied his goat for grazing. (9) Bruises - 5 cm X 2 cm on right renal area. (10) Bruises - 10 cm X 3 cm on left side back of chest." 11. PW/8 Pukhraj who is the son of deceased Ramdeen in his evidence has stated that on the fateful day he untied his goat for grazing. The goat went into the field of Jeewan Ram and Jeewan Ram tied the goat to the Babool tree. When the witness went in search of goat, he saw the goat tied to the babool tree near the well of Jeewan Ram. It is stated by the said witness that when he asked Jeewan Ram to free his she-goat, Jeewan Ram asked Pukhraj to call his father Ramdeen upon which Pukhraj went to call his father Ramdeen whom he met on the way and told him that Jeewan Ram is not freeing the goat and is calling you. He has stated that when Ramdeen went to Jeewan Ram's field and asked as to why he is not freeing the goat, Jeewan Ram, Misa Ram, Baludi, Narsa Ram, Moola Ram came on the road and dragged his father into the field. He stated that Baludi assaulted Ramdeen from the reverse side of handle of kassi on the head, thereafter, Jeewan Ram also assaulted Ramdeen from reverse side of handle of Kassi due to which he fell down. Thereafter, Moola Ram, Misa Ram, Narsa Ram came armed with lathi and assaulted his father who fell on the ground. He further stated that Narsa Ram and Misa Ram also assaulted the witness with the lathi. Upon raising cry, Ram Kunwar and Surjan came there and accused fled from the scene. He has further stated that his father died on the spot and thereafter, he went to police station to lodge the report. He has further stated that investigating officer collected the blood smeared soil and clothes which was sealed in front of him and it bears his signatures. 12. In the FIR Exhibit P/14, it is alleged that when complainant reached the spot, he found the goat tied under a Babool tree and Jeewan Ram standing there. When Jeewan Ram was questioned and asked to release the goat, the complainant was asked to bring his father. 12. In the FIR Exhibit P/14, it is alleged that when complainant reached the spot, he found the goat tied under a Babool tree and Jeewan Ram standing there. When Jeewan Ram was questioned and asked to release the goat, the complainant was asked to bring his father. On giving the information, Ramdeen accompanied his son to the field of Jeewan Ram and asked to return the goat upon which Jeewan Ram, his wife Baludi, his brother Misa Ram, another son Narsa Ram and Moola Ram, brother-in-law of Jeewan Ram caught hold of Ramdeen and dragged him into the 'jaw'. Baludi and Jeewan Ram assaulted Ramdeen with handle of Kassi [agricultural tool] and Misa Ram & Narsa Ram assaulted with lathi. It is also alleged that Jeewan Ram's brother-in-law Moola Ram also assaulted lathi. PW/6 Dr. Kailash Chandra Mathur who examined the complainant PW/8 Pukhraj has stated that he found injuries on the body of the complainant and the injury report is Exhibit P/11. 13. As per injury report of PW/8 Pukhraj, he sustained three Abrasions on the right shoulder, on middle of pinna of right ear and on posteromedial aspect of left wrist joint. There is no material difference in the version of FIR and court statement of PW/8 and contradiction pointed out by the prosecution is not very material so as to create a doubt with regard to his presence at the place of occurrence. 14. Thus, considering the evidence of PW/8 and FIR Exhibit P/14, it is established that PW/8 Pukhraj is an injured witness and he was present on the place of occurrence. He is the only witness who has stated about the participation of Appellants in the assault. 15. As per story of the defence, deceased Ramdeen came into the field of Jeewan Ram where Smt. Baludi was present. Deceased Ramdeen tried to molest her which was resisted by her strongly due to which she sustained injuries. However, Smt. Baludi in her court statement has only stated that Ramdeen caught hold of her hand and twisted and when she cried for help, Ramdeen threatened her with knife. Thereafter she lost her consciousness and Ramdeen committed rape upon her and she told the incident to her mother-in-law. However, Smt. Baludi in her court statement has only stated that Ramdeen caught hold of her hand and twisted and when she cried for help, Ramdeen threatened her with knife. Thereafter she lost her consciousness and Ramdeen committed rape upon her and she told the incident to her mother-in-law. As per evidence of Dr.Tulcha Ram who treated Smt. Baludi stated that Smt. Baludi had abrasions and scratches on her back but such injuries cannot be self-sustained, moreover at the time of examination, Smt. Baludi did not mention anything about rape or attempt to rape. Further such explanation with regard to indecent assault attributed to the deceased Ramdeen has not come on behalf of other accused Jeewan Ram and Mishari Lal in their statements under Section 313 Cr.P.C. The certified copy of judgment dated 31.07.1981 passed in Sessions Case No. 40/1980 'State v. Ramdeen & Ors' has been produced by accused Jeewan Ram alongwith explanation under Section 313 Cr.P.C stating that on the evidence of Moola Ram, who is close relative, Ramdeen was convicted in the aforesaid Sessions Case No. 40/1980 and therefore, due to inimical relations, they have been falsely implicated. In defence Moola Ram has been produced as DW/2 but he said nothing about the previous enmity and therefore, proximity between the alleged enmity stated by accused Jeewan Ram and incident is not proved. Thus, the defence has failed to prove false implication by way of leading impeccable evidence. 16. A cumulative reading of entire evidence makes it clear that the statement of complainant PW/8 Pukhraj is truthful disclosure of fact that the incident took place in the field of accused Jeewan Ram and injuries were inflicted in a sudden fight. There was no pre-meditation on the part of accused Appellants or pre-planning to their action to commit murder is also evident from the fact that the place of incident mentioned in the charge and the site plan Exhibit P/6 was 'A' and there was no drag mark found on the body or on the ground indicating that deceased was indeed dragged inside to the field of accused appellants. 17. As per postmortem report Exhibit P/12, the cause of death of deceased Ramdeen is due to head injury leading to haemorrhage and shock. It is admitted fact that the dead body of Ramdeen was found in the field of accused. 17. As per postmortem report Exhibit P/12, the cause of death of deceased Ramdeen is due to head injury leading to haemorrhage and shock. It is admitted fact that the dead body of Ramdeen was found in the field of accused. If the prosecution is not able to give description of goat, it could be a mere inadvertent lapse in investigation because the dead body of deceased was found in the field of accused. Moreover, no suggestion has been made to the Investigating officer Deepa Ram about absence of goat in the site plan. In the cross-examination, PW/8 admitted that at the time of preparing the site inspection note, goat was not in the field. 18. Upon perusal of the statements, it is obvious that the deceased went on the spot, due to some quarrel or dispute with regard to entering goat in the field but in the said incident, injuries were caused to Ramdeen and he died. 19. Considering the background facts as well as the fact that the Appellant had neither taken any undue advantage nor acted in a cruel manner and that there was sudden fight between the parties, the instant case falls under Exception 4 to Section 300 IPC. 20. Hon'ble Apex Court in (2006) 11 SCC 444 Pulicherla Nagaraju @ Nagaraja v. State of A.P.' while discussing the said aspect has observed as under :- "Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention." 21. In the instant case, as per evidence, Appellant Baludi is said to have assaulted Ramdeen from the reverse side of handle of kassi on the head and thereafter, Jeewan Ram also assaulted Ramdeen from reverse side of handle of Kassi which clearly indicate that there was no premeditation to commit murder. During this sudden quarrel and altercation, the head injury was given and an intention to kill may not be inferred. During this sudden quarrel and altercation, the head injury was given and an intention to kill may not be inferred. We may safely hold that from the facts and circumstances, it is not a case of murder but is a case of culpable homicide punishable under Section 304 read with 34 I.P.C and considering all the aspects, particularly the recovery memo of knife Ex. P/7 and conduct of the deceased, we are of the view that accused had no intention to kill the deceased and the commission of offence attributed to the Appellants would come under Section 304 Part II of the Penal Code. 22. Accordingly, the appeal is partly allowed and conviction of Appellants is altered from Section 302 I.P.C. to that under second Part of Section 304 read with 34 I.P.C. However, taking note of the fact that the incident had occurred in the year 1986 and that the accused Jeewan Ram, Smt. Baludi and Mishari lal are now 83 years, 60 years and 67 years old respectively, ends of justice would be met by awarding sentence of imprisonment of five years to each accused instead of life imprisonment alongwith fine and default stipulation as awarded by the Trial Court. The accused will be entitled to have the benefit of deduction of the period already undergone. 23. The bail bonds of the Appellants are hereby cancelled. They are directed to surrender forthwith and/or be taken into custody for serving out the remaining period of sentence.