JUDGMENT : (Delivered by Hon'ble Arvind Kumar Mishra-I, J.) By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 06.06.1989 passed by Ist Additional Sessions Judge, Saharanpur, in Sessions Trial No.703 of 1988 State of U.P. Vs. Surajmal and others, arising out of Case Crime No.298 of 1988, under Sections 323/34, 325/34, 302/34 and 452 IPC, Police Station- Deoband, District- Saharanpur, whereby the accused-appellants Surajmal and Sukkad have been sentenced to one year rigorous imprisonment coupled with fine Rs.200/-, with default stipulation for three months' additional rigorous imprisonment under Section 323/34 IPC, two years rigorous imprisonment coupled with fine Rs.500/-, with default stipulation for six months' additional rigorous imprisonment under Section 325/34 IPC, life imprisonment under Section 302/34 IPC and two years rigorous imprisonment under Section 452 IPC. All sentences were directed to run concurrently. Heard Sri Gopal Chaturvedi, Senior counsel as amicus-curiae assisted by Sri R.C. Srivastava, learned counsel for the appellants, Sri A.N. Mulla, Sri Saghir Ahmad, Sri J.K. Upadhaya, Kumari Meena, learned AGAs, Smt. Manju Thakur, brief holder for the State and perused the record of this appeal. Stream of event as reflected from record and unfolded by the first information report indicates that the first information report was lodged by the informant Bishambar son of Buddhu, resident of village Dugchada, Police Station Deoband, District Saharanpur, on 08.08.1988 at 11:30 a.m. regarding some incident having taken place on 07.08.1988 at 6:00 p.m. in the village Dugchada within the police circle Deoband, District Saharanpur wherein the following allegations were made that on 07.08.1988, the informant's son Balbir was cutting fodder in his field in the evening when Surajmal son of Sukkad, Sukkad son of Phullu diverted water of their field towards field of the informant by cutting elevated mud path. On being asked not to do the same, they abused and extended threat to kill Balbir. The informant's son came back home with fodder. Thereafter, a short while at 6:00 p.m., Sukkad son of Phullu, Surajmal and Promod sons of Sukkad, Dharmpal, Vedpal and Rajesh sons of Nakali, resident of village Dugchada, possessing Lathi in their hand and extending abuses, trespassed into house of the informant and began to assault Babvir who was sitting in 'Sahan', with intention to kill him. Thereafter, a short while at 6:00 p.m., Sukkad son of Phullu, Surajmal and Promod sons of Sukkad, Dharmpal, Vedpal and Rajesh sons of Nakali, resident of village Dugchada, possessing Lathi in their hand and extending abuses, trespassed into house of the informant and began to assault Babvir who was sitting in 'Sahan', with intention to kill him. The informant and his wife Bugli tried to save him but they too were beaten. This incident was witnessed by various persons - say Mahendra son of Ballu, Jhanda son of Dula, Rulha son of Ratiya and Mahendra son of Kabool, all resident of Dugchada. Balbir was rendered unconscious on the spot. The informant took him to the hospital at Deoband where he was medically examined by the doctor but his condition being serious, he was referred to Muzaffarnagar the same night, where he was got admitted but he succumbed to his injury in the night. Since the informant was looking after his son whole night, therefore, he has come to lodge the report at the police station at this juncture. It was requested that report be lodged and appropriate action be taken. The written report is Ext. Ka-1. Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No.298 of 1988 under Sections 147, 452, 323, 302 IPC, at Police Station Deoband, District Saharanpur, on 08.08.1988 at 11:30 a.m. Check FIR has been proved by B.L. Gautam, the Investigating Officer PW-8 as Ext. Ka-8. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellants in the relevant G.D. at serial no.25 on 08.08.1988 at 11:30 a.m. at aforesaid case crime number at Police Station Deoband, District Saharanpur, under aforesaid sections of I.P.C. against accused-appellants. Copy of general diary is Ext. Ka-9. After the case was registered, investigation ensued and the same was taken over by B.L. Gautam PW-8 who recorded statement of Head Muharrir Brahm Singh and that of the informant Bishambar at the police station, then proceeded to the place of occurrence in the village Dugchada where he recorded statement of Smt. Bugli and various other persons and inspected the spot and prepared site map Ext. Ka-10. During course of the investigation, he arrested accused Surajmal and Promod and recorded their statement. Ka-10. During course of the investigation, he arrested accused Surajmal and Promod and recorded their statement. Again, he recorded statement of various prosecution witnesses - say Jhanda Singh, Bishambar and also took stock of medical examination report of Smt. Bugli. He also recorded statement of S.I. Ram Ratan Singh and Constable Shitala Prasad. Record also reflects that medical examination of the then injured Balbir (who later on died) took pace at Primary Health Centre, Deoband on 07.08.1988 at 10:30 p.m., where Dr. Ram Kumar Gupta PW-3 examined his person and noted the following injury: Red contusion size 4 cm x 1 cm associated with traumatic swelling in area 7 cm x 4 cm on right side skull, just 8 cm above from right ear (advised x-ray). General condition of the patient was very low as pulse was 72 per minute very high volume, blood pressure was 150/100. Pupil of both eyes were fixed and not reacting to light. Patient was fully unconscious and breathing irregular. Injury was kept under observation. Hence advised x-ray. Injury was caused by blunt object. Duration was fresh. Information to the Police Station Deoband was also given by him. This injury report has been proved by Dr. Ram Kumar Gupta PW-3 as Ext. Ka-2. Record further reflects that the injured Bishambar son of Buddhu Dhinver was also examined at the same primary health centre by the same doctor on 07.08.1988 at 10:45 p.m. who noted as many as four injuries on his person: 1. Red abrasion size 3 cm x 1 cm on top of skull. 2. Red abrasion 1 ½ cm x 1 cm on top and middle of skull, just 2 cm apart from injury no.1. 3. Red abrasion size 2 ½ cm x 1 ½ cm on right side back of skull, just 11 cm behind from right ear. 4. Lacerated wound size 2 cm x 1 cm x bone deep on front and middle of right little finger (advised x-ray for right little finger of right hand). Injury no.4 was kept under observation. Hence advised x-ray. Rest of injuries were stated to be simple. It was also opined that injury no.4 might have been caused by some blunt object and rest by friction. Duration was stated to be fresh. Injury report of the injured Bishambar is Ext. Ka-3. We notice medical examination of Smt. Bugli wife of Bishambar. Hence advised x-ray. Rest of injuries were stated to be simple. It was also opined that injury no.4 might have been caused by some blunt object and rest by friction. Duration was stated to be fresh. Injury report of the injured Bishambar is Ext. Ka-3. We notice medical examination of Smt. Bugli wife of Bishambar. She was also examined at the same primary health centre by the same doctor on 09.08.1988 at 11:30 a.m., who noted the following injuries on her person: 1. Bluish contusion size 4 cm x 1 cm on left side back of chest. 2. Bluish contusion size 11 cm x 6 cm on left side, upper part of buttock. Both injuries were simple and caused by blunt object. Duration was noted about 2 days. Injury report of Smt. Bugli is Ext. Ka-4. Record further reflects that the injured Balbir succumbed to his injury at about 2:30 a.m. on 08.08.1988. After selecting inquest witnesses, inquest was held on 08.08.1988. It commenced at 11:40 a.m. and completed at 12:40 p.m. the same day. The witnesses concurred with the Investigating Officer that the dead body be sent for post mortem examination in order to ascertain real cause of death. Inquest report is Ext. Ka-11. In the process, relevant papers were prepared, which are Photonash Ext. Ka-12, letter to CMO Ext. Ka-13, letter to RI Ext. Ka-14 and challan dead body police form 13 Ext. Ka-15. Thereafter, post mortem examination on the cadaver of deceased Balbir was done by Dr. B.K. Sharma PW-4 on 08.08.1988 at 4:00 p.m. at District Hospital Muzaffarnagar wherein he noted the following ante mortem injuries: 1. Contusion 8 cm x 3 cm on right side of scalp, 9 cm above the right ear. 2. Contusion 6 cm x 3 cm on left side scalp, 5 cm above the left ear. Under the injury, temporal bone of left side fractured and haematoma of 30 mm blood present under the injury. In the opinion of the doctor, cause of death was shock and haemorrhage on account of ante mortem firearm injuries. This post mortem examination report is Ext. Ka-5. Dr. Ajay Kumar PW-6 conducted x-ray examination of right little finger of right hand of Bishambar wherein middle phalanx was found to be crushed and broken piece of fourth metacarpal bone was also discovered. The doctor also identified x-ray plate. X-ray report is Ext. This post mortem examination report is Ext. Ka-5. Dr. Ajay Kumar PW-6 conducted x-ray examination of right little finger of right hand of Bishambar wherein middle phalanx was found to be crushed and broken piece of fourth metacarpal bone was also discovered. The doctor also identified x-ray plate. X-ray report is Ext. Ka-6 and x-ray plat is material Ext. 1. After the investigation was conducted by B.L. Gautam PW-8, it was subsequently taken over by Ram Chander Singh Chandel PW-7 on 16.08.1988. He obtained x-ray report of Bishambar and added Section 325 IPC. The Investigating Officer also collected the post mortem examination report along with inquest report, made relevant entry in the case diary and recorded statement of accused persons on 22.08.1988, and after completing the investigation, filed charge-sheet against the accused-appellants which is Ext. Ka-7 on record. Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Ist Additional Sessions Judge, Saharanpur who in turn heard both the sides on point of charge and was, prima-facie, satisfied with case against the accused-appellants, accordingly, framed charges under Sections 147, 323/149, 325/149, 302/149 and 452 IPC. Charges were read over and explained to the accused-appellants who abjured charges and opted for trial. In furtherance of the proceedings, the prosecution produced in all 8 witnesses whose reference is sketched here in under: Bishambar PW-1 is the informant and father of the deceased Balbir. He claims himself to be injured eyewitness. Jhanda PW-2 is also eyewitness of the occurrence and he has described about the incident. Dr. Ram Kumar Gupta PW-3 has medically examined Balbir and Bishambar on 07.08.1988, whereas, he has examined Smt. Bugli on 09.08.1988 and has proved injury reports of Balbir, Bishambar and Smt. Bugli as Ext. Ka-2, Ext. Ka-3 and Ext. Ka-4, respectively. Dr. B.K. Sharma PW-4 has conducted autopsy on the dead body of deceased Balbir on 08.08.1988 at 4:00 p.m. in the mortuary at Muzaffarnagar and has proved post mortem examination report as Ext. Ka-5. Constable Shitala Baksha PW-5 has taken dead body to the mortuary Muzaffarnagar and has proved fact that inquest was held in his presence and inquest report was prepared by S.I. Ram Ratan. Dr. Ka-5. Constable Shitala Baksha PW-5 has taken dead body to the mortuary Muzaffarnagar and has proved fact that inquest was held in his presence and inquest report was prepared by S.I. Ram Ratan. Dr. Ajai Kumar PW-6 has conducted x-ray examination of little finger of right hand of the injured Bishambar, has prepared x-ray report and has proved x-ray plate and x-ray report as material Ext. 1 and Ext. Ka-6, respectively. Ram Chander Singh Chandel PW-7 is the second Investigating Officer. He has conducted part of the investigation. He has filed charge sheet and has proved the same as Ext. Ka-7. B.L. Gautam PW-8 is the Investigating Officer of this case. He swung into investigation after lodging of the case against the accused-appellants on 08.08.1988 and has proved in detail various steps, he took during his tenure as Investigating Officer of this case. He has also stated that the investigation was then taken over by another Investigating Officer. Except as above, no other evidence was adduced by the prosecution. Therefore, evidence for the prosecution was closed. The statement of the accused-appellants was recorded under Section 313 Cr.P.C. wherein they claim to have been falsely implicated in this case on account of enmity. However, the defence did not lead any evidence. The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against accused-appellants and sentenced them as aforesaid vide impugned judgment and order dated 06.06.1989. Feeling aggrieved by the aforesaid judgment and order of conviction, the present accused-appellants have moved in appeal before us. Sri G.S. Chaturvedi, learned Senior Counsel (amicus curiae) has vehemently contended that the entire case set up by the prosecution against the accused-appellants is inherently weak and does not inspire confidence, for various reasons. After the trial was conducted, several accused-persons named in the first information report, who allegedly participated in the commission of the crime along with the present accused-appellants, have been acquitted of charges by the trial court on the same evidence. After the trial was conducted, several accused-persons named in the first information report, who allegedly participated in the commission of the crime along with the present accused-appellants, have been acquitted of charges by the trial court on the same evidence. Fact is that the accused-persons were alleged to have been possessing Lathi and all the accused-persons caused Lathi blows on the informant's side and particularly, on the deceased Balbir, but medical examination report of deceased Balbir prior to his death indicates only one injury on his head in form of red contusion size 4 cm x 1 cm associated with traumatic swelling in area 7 cm x 4 cm on right side skull. If this is the state of injury caused on the head of the deceased then how can ocular version of incident can be relied by the prosecution for suggesting altogether false manner and style of occurrence and how can such ocular description of occurrence be believed to be true. Admittedly, testimony of the prosecution witnesses and allegations made in the first information report, when blended together, sheds impression that a number of Lathi blows had been caused on the deceased but medical examination report of the deceased Balbir which is Ext. Ka-2 exposes falsity of any such claim. Learned counsel for the accused-appellants has further contended that insofar as motive part of the incident is concerned, that is trivial, petty and casual, in the sense that some altercation took place while the accused tried to flow water from their field into the field of the informant's side by cutting elevated mud path. This petty cause can never be widened to such a magnitude that it would give rise to committing of such offence to the extent of causing death of deceased Balbir. One single blow on the head of the deceased itself is indicative of the intention of the accused-appellants that they never intended to cause his death but wanted to only chastise him. May be that assault proved fatal, but this by itself will not bring the case of the accused-appellants under Section 302 IPC. The accused-appellants, at the most, can be charged under Sections 323, 324, 325 IPC and the case will not travel beyond that. May be that assault proved fatal, but this by itself will not bring the case of the accused-appellants under Section 302 IPC. The accused-appellants, at the most, can be charged under Sections 323, 324, 325 IPC and the case will not travel beyond that. Learned counsel for the accused-appellants has further stressed that the only motive that can be inferred from the entire incident remains confined to the ambit of chastisement and that way, if some fracture was discovered in the right hand finger of the injured Bishambar, then the case will be confined to the ambit of Section 325/34 IPC only. If Smt. Bugli was severely injured and she, as per allegations, received two Lathi blows then why was her medical examination conducted on 09.08.1988 at 11:30 a.m., whereas, the incident took place on 07.08.1988 at 6:00 p.m. This also shows some fabrication on the part of the prosecution. No worthy explanation has been given by the prosecution regarding delayed medical examination of Smt. Bugli. This particular aspect has been improved, that is why Smt. Bugli has not been produced as prosecution witness before the trial court. Learned counsel for the accused-appellants has next contended that the first information report has been lodged at inordinate delay. The incident took place on 07.08.1988 at 6:00 p.m., but the first information report was lodged on 08.08.1988 at 11:30 a.m. after lapse of about 17 and half hours, whereas, distance from the place of occurrence up to the police station has been described as 8 kilometers. There was no bifurcation of role played by each assailant involved in the commission of the crime but tactics was devised during course of trial at the time of tendering evidence to specify separately role of every accused which is in form of material improvement, because no such whisper is discernible in the first information report and the statement of the prosecution witnesses recorded by the Investigating Officer. The role of the accused-appellants was deliberately segregated from the other accused-appellants. On the same evidence, four accused persons have been acquitted of charges. Theory of common object itself fails by virtue of acquittal of the other four accused-persons and now remaining accused are two in number. The role of the accused-appellants was deliberately segregated from the other accused-appellants. On the same evidence, four accused persons have been acquitted of charges. Theory of common object itself fails by virtue of acquittal of the other four accused-persons and now remaining accused are two in number. Learned counsel for the accused-appellants has lastly contended that assuming it to be that some offence has been committed and the death occurred even then Section 302 IPC is not attracted in this case and the case will fall squarely in Part-II of Section 304 IPC. Injuries on the person of the injured Bishambar, informant PW-1, no doubt establish his presence on the spot but mere presence on the spot is no guarantee to his being truthful to the fact of the occurrence. Prosecution witnesses of fact are improving their testimony and they are not worthy of credit. Per contra, Sri A.N. Mulla, learned AGA retorted to aforesaid arguments by submitting that it is a case of above suspicion. It is not an ordinary case of false implication on account of any long drawn enmity. Here cause of action/motive arose for committing offence in the field when waterlogged in the field of the accused was tried to be flown into field of the informant by cutting elevated mud path of the informant's field. This became centre point of the dispute and the motive is very specific. Therefore, it cannot be said that it is a case without any motive or that motive suggested is weak. Learned AGA has further added that in presence of eye account testimony of the occurrence, there is no relevancy for adhering to argument asking for proving motive to the magnitude that it was fair enough for causing death of a person. The injured witnesses themselves have stated about the occurrence that they had been assaulted by the accused. No doubt, the prosecution witnesses of fact have improved on the manner and style of the occurrence, but that will alone not minimize degree of culpability which the result of the offence divulges. The injured witnesses themselves have stated about the occurrence that they had been assaulted by the accused. No doubt, the prosecution witnesses of fact have improved on the manner and style of the occurrence, but that will alone not minimize degree of culpability which the result of the offence divulges. Here the final outcome of assault has been in shape and consequential to death of a person for which appropriate Section is 302 IPC and not Section 304 IPC, because the assault given on the head of the deceased was sufficient to cause death and the accused-appellants will be imputed with intention, knowledge and reason to believe that the assault caused by them will result in death. Only because Smt. Bugli was not examined by the prosecution that alone would not create any dent in the prosecution case. Insofar as ocular testimony and evidence on record is concerned, it can be visualized that number of witnesses is not to be counted but quality of the evidence is to be taken into consideration. Testimony of the prosecution witnesses of fact is clinching, consistent and free of infirmity and each witness corroborates the other witness in material particulars. Merely because four accused-persons have been acquitted of charge, will not be a ground for leniency to be shown upon the present accused-appellants. In their case, the trial court entertained some doubt regarding their participation in the offence but in the case of the accused-appellants, no such factual scene ever surfaced, therefore, advantage of acquittal against the co-accused persons will not give any advantage to the present accused-appellants. The prosecution has proved its case beyond all reasonable doubt. To say that the case falls within the purview of Part-II of Section 304 IPC is wholly baseless. Appeal is devoid of merit. We have also considered the above rival submissions and taken into consideration the rival claims. In view of above, core consideration which engages our attention for determination of this appeal basically relates to fact whether the prosecution has been able to establish its case beyond reasonable doubt against the accused-appellants or whether the case of the accused-appellants is covered under Part-II of Section 304 IPC than under Section 302 IPC. On careful perusal of the written report of this case, an impression is created that the first information report is highly delayed. On careful perusal of the written report of this case, an impression is created that the first information report is highly delayed. Because, the incident took place on 07.08.1988 at 6:00 p.m., whereas, the first information report was lodged on 08.08.1988 at 11:30 a.m. at Police Station Deoband, District Saharanpur. The explanation has been extended by the prosecution that the written report itself describes as to how lodging of FIR was delayed which, under circumstance, is natural and probable that while the first information report discloses fact that informant remained busy throughout the night in taking care of his son Balbir and after death of the victim Balbir, the informant came to the police station for lodging the first information report. This explanation, under facts and circumstances of the case, is neither false nor deliberate nor well thought out plan to lodge false report and no advantage, whatsoever, was going to be gained by the informant side by doing such act. We come across testimony of Bishambar - informant PW-1 - that he was busy in taking care of his son Balbir throughout night, who was shifted from primary health centre at Deoband to hospital at Muzaffarnagar and the victim Balbir expired in the night. Thereafter, the written report was lodged at 11:30 a.m. on 08.08.1988. At this stage, we also come across medical examination report of the victim Balbir who was examined at primary health centre Deoband on 07.08.1988 at 10:30 p.m. and medical examination report of the injured Bishambar, who was also examined at the same primary health centre on 07.08.1988 at 10:45 p.m. This particular aspect by itself reveals that the informant was busy from beginning of the incident and was taking help of medical services to save his son and himself. Thus, we find force in the explanation given by the prosecution that there is no such inordinate delay as may be called unexplained. Therefore, we hold that there is no delay in lodging of the first information report. Insofar as actual occurrence is concerned, we come across testimony of the injured eyewitness - informant Bishambar PW-1 - who is the father of the deceased Balbir. His testimony becomes relevant, for the reason that he is also an injured witness. Therefore, we hold that there is no delay in lodging of the first information report. Insofar as actual occurrence is concerned, we come across testimony of the injured eyewitness - informant Bishambar PW-1 - who is the father of the deceased Balbir. His testimony becomes relevant, for the reason that he is also an injured witness. Before examining evidentiary value of his testimony, it would be relevant, at this juncture, to have a glance at the medical examination report of Bishambar PW-1 and victim Balbir as well. Dr. Ram Kumar Gupta PW-3 has medically examined the injured Bishambar at primary health centre, Deoband on 07.08.1988 at 10:45 p.m. and noted as many as four injuries on his person: 1. Red abrasion size 3 cm x 1 cm on top of skull. 2. Red abrasion 1 ½ cm x 1 cm on top and middle of skull, just 2 cm apart from injury no.1. 3. Red abrasion size 2 ½ cm x 1 ½ cm on right side back of skull, just 11 cm behind from right ear. 4. Lacerated wound size 2 cm x 1 cm x bone deep on front and middle of right little finger (advised x-ray of right little finger of right hand). This injury report of the injured Bishambar has been proved by Dr. Ram Kumar Gupta PW-3 as Ext. Ka-3. One relevant aspect has emerged in the cross examination of the doctor (PW-3) by the defence on page 24 of the paper book which is specific to the point. The doctor witness (PW-3) has categorically stated that the injuries suffered by the injured Bishambar cannot be self-suffered and cannot be manufactured. In the light of above testimony, we can unambiguously record that presence of the injured Bishambar PW-1 on the spot at the time of occurrence cannot be dispensed with instead it is established. Therefore, his presence on the spot is established by the prosecution. Learned Senior Counsel has vehemently persuaded that assuming it to be that Bishambar PW-1 was present at the time of occurrence since he is an injured witness, even then his testimony is to be gauged by parameter of truthfulness and the Court has to see the magnitude of truthfulness of the witness. Court would have to advert to fact overall veracity of the witness. Court would have to advert to fact overall veracity of the witness. With that view in mind, now we may turn over to the ocular testimony of Bishambar PW-1. It has been testified by Bishambar PW-1 that on the day of occurrence, his son (victim) had gone for cutting fodder from his field around 5:00 p.m. and returned from field around 6:00 p.m. On his return, Balbir (victim) told him about some threats to his life being extended by Sukkad and Surajmal. The controversy had arisen on the ground that the accused-appellants had cut elevated mud path of the informant's field and caused the water from their field to flow down into the field of the informant. When Balbir asked them not to do so then the accused-appellants abused and threatened Balbir. After his return from field, Balbir was sitting in 'Sahan' of his house. It was around 6:00 p.m., Sukkad and Surajmal came over there and gave Lathi blows on Balbir, besides the other accused also arrived on the spot possessing Lathi in their hand. When the informant and his wife tried to save their son, they were also beaten by the accused-persons. In the meanwhile, several persons -say Mahendra son of Ballu, Jhanda son of Dula, Rulha son of Ratiya and Mahendra son of Kabool arrived on the spot when the assailants managed their escape. Balbir was rendered unconscious after sustaining injuries. The informant took him to the primary health centre Deoband where he was given treatment by the doctor. Looking to his serious condition, he was referred to the hospital at Muzaffarnagar. The informant's son Balbir succumbed to his injuries at night in the hospital at Muzaffarnagar. The first information report was lodged at Police Station Deoband in the next morning. This witness (PW-1) has been cross examined wherein nothing adverse has emerged which may render his testimony either full of infirmity or improved in material particulars. There are some slight deviations on the description of manner and style of assault being caused to the deceased Balbir and the informant Bishambar while the role of Sukkad and Surajmal has been specified by this witness, when he stated that his son was assaulted only by Sukkad and Surajmal, whereas, the informant and Bugli were assaulted by all the accused-persons. Again he went on to say that accused Pramod and Dharmpal assaulted Smt. Bugli, and accused Vedpal and Rajesh assault him. This specification of particular role to the accused-persons does not throw any doubt on the veracity of the actual incident and it does not erode credibility of this witness (PW-1) as such, because his testimony on the whole proves occurrence to the point that the assault was caused by the accused persons by giving Lathi blow to the deceased Balbir and he also sustained injuries caused by such Lathi blow in the incident. For the sake of argument, we can observe that Smt. Bugli might not have been injured in the incident but medical examination report of the informant Bishambar and the victim Balbir is suggestive and indicative of fact that the informant was present on the spot and he sustained injuries at the hand of the accused-persons. That way, the assault being caused to the victim Balbir by Lathi blows stands proved in a consistent manner by the testimony of PW-1. We have ocular testimony of another eyewitness Jhanda PW-2. He says that he arrived on the spot when some altercation was going on among Sukkad, Bishambar, Surajmal then Surajmal gave Lathi blow to the victim Balbir then Sukkad gave Lathi blow to the victim Balbir. In the meanwhile, Vedpal and Rajesh began to assault Bishambar. All the assailants were possessing Lathi. His cross examination has been done by defence wherein also nothing substantial of the sort has emerged, which may effect adversely credibility of this witness and suggest that this witness was not present on the spot, like PW-1. He, too, appears to have been improving on trivial aspect of manner and style of causing blow on each injured but that deviation/improvement in the ocular testimony of the occurrence does not effect the occurrence on the whole. Testimony on the whole establishes participation of the accused in causing Lathi blow to deceased Balbir and the injured Bishambar. We come across fact that Dr. Ajai Kumar PW-6 conducted x-ray examination of right little finger of right hand of the injured Bishambar wherein some fracture was reported. X-ray report and x-ray plate have been proved by doctor witness as Ext. Ka-6 and material Ext. 1, respectively. We also come across testimony of another witness Dr. We come across fact that Dr. Ajai Kumar PW-6 conducted x-ray examination of right little finger of right hand of the injured Bishambar wherein some fracture was reported. X-ray report and x-ray plate have been proved by doctor witness as Ext. Ka-6 and material Ext. 1, respectively. We also come across testimony of another witness Dr. B.K. Sharma who conducted autopsy on the cadaver of the deceased Balbir on 08.08.1988 at 4:00 p.m. in the mortuary at Muzaffarnagar wherein he has noted two ante mortem injuries: 1. Contusion 8 cm x 3 cm on right side of scalp, 9 cm above the right ear. 2. Contusion 6 cm x 3 cm on left side scalp, 5 cm above the left ear. The doctor witness PW-4 has proved post mortem examination report Ext. Ka-5. Regarding ante mortem injury no.2, the doctor witness has testified in his cross-examination on page 27 of the paper book that injury no.2 may be caused due to impact created by ante mortem injury no.1. The doctor witness has specifically stated about cause of death due to shock and haemorrhage as a result of ante mortem injury. Ante mortem injuries can be caused by Lathi blows. This piece of testimony has remained unchallenged by the defence and that way also, causing of injury by Lathi blows may be said to be indirectly admitted to the defence. Thus, ocular testimony is in consonance with the medical testimony and it cannot be said that there is any material variation or contradiction between ocular testimony and the medical testimony, but both stand in absolute rapprochement. Therefore, the fact of occurrence and the fact of participation of the accused persons in the commission of the offence are overwhelmingly reflected and established and the same are proved beyond all reasonable. Now insofar as argument extended by the learned Senior Counsel for the accused-appellants on point that the case is fit one to be put in the safe corner of Part-II of Section 304 IPC and not under Section 302 IPC, is concerned, here in this case at hand, factual position is that one Lathi blow has been caused on the head/skull of the deceased Balbir and no second attempt or blow was caused to Balbir - the deceased. This particular manner of causing Lathi blow to the deceased can be linked with the very motive suggested for committing the crime which originated in the field of the deceased /informant when the accused-appellants tried to cause flow of water in the field of the informant by cutting elevated mud path. Some altercation took place over there and abuses exchanged at that point of time and this alone was the proximate cause and centre point of controversy, therefore, intent to cause death was not there but chastisement in its cruel form was the only perceptible objective working as grudge to retaliate because the entire span of committing offence at Sahan/house of the informant by the accused persons was immediate outcome after altercation had taken place between 5:00 to 6:00 p.m. on the fateful evening. As soon as the deceased Balbir returned his home and was sitting in his Sahan, he was assaulted by the accused persons by causing him Lathi blow. We may also contemplate on point and particularly on argument raised by learned Senior Counsel for the accused-appellants that the case of the accused-appellants should be confined to Sections 323/34, 324/34 and 325/34 and not beyond that. In this classification, we take strong note of fact of nature of the ante mortem injuries caused on the head/skull of the deceased Balbir. The dimension of these injuries noted by Dr. B.K. Sharma PW-4 has been stated to be sufficient in ordinary course of nature to cause death. Section 26 of the Indian Penal Code defines that a person will be imputed with reason to believe when that person has sufficient cause to do that thing but not otherwise. Meaning thereby that the accused must be imputed with reason and belief that they have got a cause to force their way in their own style - say retaliation, that way, the offence was committed. This commission of offence was retaliation but that proved fatal because of the nature of the injury caused on the skull of the deceased. Dr. B.K. Sharma PW-4, who proved cause of death, has termed ante mortem injury no.1 as fatal injury which caused shock and haemorrhage, due to which the death resulted. That specific piece of testimony assumes testimony of vital import and the same has not even been challenged by the defence. Dr. B.K. Sharma PW-4, who proved cause of death, has termed ante mortem injury no.1 as fatal injury which caused shock and haemorrhage, due to which the death resulted. That specific piece of testimony assumes testimony of vital import and the same has not even been challenged by the defence. That way, knowledge of magnitude that the act may likely to cause death in ordinary course of nature cannot be ignored because every man is supposed to know reasonable consequence of his act. Causing of Lathi blow on the head of a person is sufficient to give rise to fact that it may, in all likelihood, cause death of the person, if the nature of the injury becomes fatal. Here ante mortem injury no.1 has been specified as fatal by the doctor. In this particular case, circumstances and evidence regarding occurrence establish that Lathi blow was caused on the head of the deceased Balbir which ultimately resulted in his death. Therefore, the accused-appellants will be imputed with the knowledge and consequence of their act though they did not intend to cause death but they may be imputed knowledge of death as natural consequence of their act. Thus, plea to the extent that the case of the accused-appellants may be confined to the aforesaid Sections of IPC is not sustainable. Here the accused-appellants are also responsible for causing death of Balbir though not intended but by way of imputation of knowledge of death as natural consequence of their criminal act. We on careful perusal of evidence, facts and circumstances of the case and after considering relevant provisions of IPC and particularly Sections 302 and 304 IPC, are in agreement that the case of the accused-appellants cannot be said to be based on intention to kill and the act was not so imminently dangerous that it will, in all likelihood, cause death, however, knowledge that death may also result on account of the nature and the seat of injury caused on the head of the deceased Balbir cannot be ruled out. Therefore, offence committed falls squarely under Part-II of Section 304 IPC and not under Section 302 IPC. However, proved facts and circumstances against the accused-appellants justify their conviction under Sections 323/34, 325/34 and 452 IPC, therefore, the same is affirmed by us. Therefore, offence committed falls squarely under Part-II of Section 304 IPC and not under Section 302 IPC. However, proved facts and circumstances against the accused-appellants justify their conviction under Sections 323/34, 325/34 and 452 IPC, therefore, the same is affirmed by us. The trial court while appreciating facts and evaluating evidence of this case failed to take note of above fact and it imputed intention as the dominant aspect on the part of the accused-appellants while committing the offence, whereas, facts and circumstances of the case and the motive imputed for committing the offence suggest that there was no such intention to cause death. However, knowledge can be easily imputed against the accused-appellants for they must have reason to believe and know natural consequence and outcome of offence committed by them that the offence committed by them is likely to result in death. Therefore, conviction recorded by the trial court under Section 302/34 IPC is hereby modified and confined to Part-II of Section 304/34 IPC while conviction recorded by the trial court in other Sections of IPC is wholly justified and maintained as such by us. Insofar as sentencing part for offence under Part-II of Section 304/34 IPC is concerned, looking to the facts and circumstances of the case and also considering the nature of the offence and motivating force, we are of the view that the interest of justice would be served, if each of the accused-appellant is sentenced to ten years rigorous imprisonment coupled with fine Rs.10,000/- and in case of default the concerned accused-appellant would have to suffer additional six months imprisonment. All the sentences to run concurrently. Therefore, the impugned judgment and order of conviction dated 06.06.1989 passed by Ist Additional Sessions Judge, Saharanpur, in Sessions Trial No.703 of 1988 State of U.P. Vs. Surajmal and others, arising out of Case Crime No.298 of 1988, under Sections 323/34, 325/34, 302/34 and 452 IPC, Police Station- Deoband, District- Saharanpur, is hereby modified by us to the above extent. Accordingly, the instant appeal is allowed, partly in terms aforesaid. In this case, the accused-appellants are on bail. Their bail bonds and surety bonds are cancelled. They shall be taken into custody forthwith to serve out the remaining period of their sentence. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.