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Allahabad High Court · body

2017 DIGILAW 715 (ALL)

HARIHAR v. STATE OF U. P.

2017-03-07

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
1. This Criminal Appeal is preferred by appellants Harihar, Moti Lal, Lutawan @ Lutan and Ram Subhag against the judgement and order dated 14.10.1985 passed by VIIth Additional Sessions Judge, Deoria in S.T. No. 64 of 1984 by which they have been convicted and sentenced to imprisonment for life u/s 302/34 I.P.C., two years and six months rigorous imprisonment u/s 324/34 and 323/34 I.P.C., each on both counts. All the sentences were directed to run concurrently. 2. PW3 Fagu lodged a written complaint (Ext. Ka1) at P.S.-Padrauna, District-Deoria on 22.08.1982 at about 12:30 p.m., alleging therein that he was co-owner of a grove situated in the northeast corner of his village, Mathiya Khas. In the partition of guava trees, which had taken place between its co-sharers, complainant, Lutawan, and Harihar, Moti Lal and Jhoolan, one-third share was alloted to the complainant and Lutawan each individually and Harihar, Moti Lal and Jhoolan jointly. The branches of the guava trees standing in the grove spread over the different portions of the co-sharers. While Jhoolan, who also looked after the agricultural work of the complainant, was plucking guava from a tree which had fallen to his share at about 10 a.m. on 22.08.1982, appellant no.1 Harihar and appellant no.2, Moti Lal stopped him from plucking guavas which lead to an altercation between them which took an ugly turn on which A3 Lutawan and A4 Ram Subhag also reached the place of occurrence armed with lathi and ballam and started beating the deceased, complainant, Smt. Bhikhani, wife of Jhoolan and Kaushalya, daughter of Jhoolan, tried to intercede on which they were also beaten by them. On hearing the noise raised by Ram Vilas, son of Jhoolan, who on getting scared at seeing the incident, had run towards the village, PW1 Dwarika and several other persons ran towards the place of occurrence. In defense, they also used lathis in the incident. The complainant, wife and daughter of Jhoolan received serious injuries and fell on the ground in the grove. After the lathi of Jhoolan was broken, he ran towards west on which the accused-appellants chased him and after overpowering him in the rice field, they beat him severely. In defense, they also used lathis in the incident. The complainant, wife and daughter of Jhoolan received serious injuries and fell on the ground in the grove. After the lathi of Jhoolan was broken, he ran towards west on which the accused-appellants chased him and after overpowering him in the rice field, they beat him severely. On hearing the cries of help of the complainant and others present at the place of incident, on the intercession of the villagers and on being admonished by them, the accused-appellants ran towards their home, after committing the incident. Case Crime No. 169 of 1982 was registered against all the accused-appellants u/s 308, 324 and 325 I.P.C. Check F.I.R. (Ext. Ka2) and the relevant G.D. entry (Ext. Ka3) were prepared on the same day vide report no.20 at 12:30 p.m. on 22.08.1982 (Ext. Ka3) by PW9 Rama Shanker Pandey. The investigation of the case was entrusted to PW9 S.I. Rama Shanker Pandey, who immediately recorded the statements of PW1 Dwarika, PW3 Fagu, PW4 Bhikhani and Kaushalya u/s 161 I.P.C. on 22.08.1982 and referred the injured to Sadar Hospital, Deoria for their medical examination where their injuries were examined on the same day at 4:35 p.m., 5:10 p.m. and 5:15 p.m. respectively by PW7 Dr. C.B. Singh. The injury reports of PW3 Fagu, deceased Jhoolan and Kaushalya were brought on record and proved as Ext. Ka4, Ext. Ka5 and Ext. Ka6. Injured Jhoolan died immediately after being admitted to the hospital whereupon the case was converted to one u/s 304 I.P.C. PW9 S.I. Rama Shanker Pandey performed the inquest on the dead body of deceased Jhoolan in Padrauna hospital and prepared his inquest report (Ext. Ka8) and other documents challan nash (Ext. Ka9), specimen of seal (Ext. Ka10), photo nash (Ext. Ka11), request letter for conducting postmortem addressed to C.M.O (Ext. Ka12), form no.33 (Ext. Ka13) and copies of the F.I.R and G.D (Ext. Ka14 and Ext. Ka15 respectively) and dispatched the dead body of the deceased for postmortem in the custody of PW5 Constable Suryadeo Tiwari and Constable Aditya Singh. The postmortem on the cadaver of the deceased Jhoolan was conducted by PW8 Dr. N.K. Jaiswal and the postmortem report of deceased Jhoolan is on record as Ext. Ka20. 3. On the same day, he reached the place of occurrence and prepared the site plan which is on the record as Ext. Ka16. The postmortem on the cadaver of the deceased Jhoolan was conducted by PW8 Dr. N.K. Jaiswal and the postmortem report of deceased Jhoolan is on record as Ext. Ka20. 3. On the same day, he reached the place of occurrence and prepared the site plan which is on the record as Ext. Ka16. The places where the blood of the deceased was found were marked by PW9 by figures 2 and 3. He also collected plain and simple earth (Ext. Ka17) from the spots shown in the site plan (Ext. Ka16) by figures 2 and 3 and after sealing the same, prepared the recovery memo (Ext. Ka6). He also collected blood stained lathi, danda and bamboos from the field where Jhoolan had been killed and prepared their recovery memo (Ext. Ka18). After completing the investigation, he submitted charge-sheet (Ext. Ka9) against all the accused. 4. Since the offences mentioned in the charge-sheet were triable exclusively by a Court of Sessions, Chief Judicial Magistrate, Deoria, committed the case for the trial of the accused to the Court of Sessions Judge, Deoria, where it was numbered as S.T. No. 64 of 1984 and made over for trial to the Court of Additional District and Sessions Judge, Deoria. After hearing the accused on the point of charge, learned VIIth Additional District and Sessions Judge, Deoria, framed charge against all the accused on 31.07.1984 u/s 302 read with section 34 I.P.C., 325 read with section 34 I.P.C. and 323 read with section 34 I.P.C. 5. The accused pleaded not guilty and claimed trial. The prosecution, in order to prove its case against the accused-appellants, examined as many as nine witnesses of whom PW1 Dwarika, PW2 Jotia, PW3 Fagu (complainant) and PW4 Bhikhani, were examined as witnesses of fact. PW5 Suryadeo Tiwari, proved that he along with Constable Aditya Singh had taken the dead body of the deceased on 22.08.1982 from Padrauna Hospital to Sadar Hospital, Deoria along with the relevant documents for conducting the postmortem of the deceased, PW6 Praduman Rai, proved the check F.I.R. (Ext. Ka2) and relevant G.D. entry (Ext. Ka3), PW7 Dr. C.B. Singh, Deputy C.M.O., proved the injury reports of PW3 Fagu, PW4 Smt. Bhikhani and Kaushalya, daughter of the deceased. PW8 Dr. Ka2) and relevant G.D. entry (Ext. Ka3), PW7 Dr. C.B. Singh, Deputy C.M.O., proved the injury reports of PW3 Fagu, PW4 Smt. Bhikhani and Kaushalya, daughter of the deceased. PW8 Dr. N.K. Jaiswal, under whose supervision the x-ray of the injuries of PW3 Fagu was conducted, proved the supplementary injury report of PW4 Smt. Bhikhani and Kaushalya (as Ext. Ka7) and the x-ray plates as Material Ext. Ka1, Ext. Ka2 and Ext. Ka3. S.I. Rama Shanker Pandey, who had conducted the investigation in this case, was examined as PW9. He proved the inquest report (Ext. Ka18), challan nash (Ext. Ka9), specimen of seal (Ext. Ka10), photo nash (Ext. Ka11), request letter addressed to C.M.O for conducting postmortem (Ext. Ka12), form no.33 (Ext. Ka13), site plan of the occurrence (Ext. Ka16), recovery memos of blood stained and simple earth from the place of occurrence and blood stained lathi, danda and bamboo sticks (Ext. Ka17 and Ext. Ka18 respectively) and charge-sheet (Ext. Ka19). Dr. H.C. Gupta, who had conducted the postmortem on the dead body of the deceased on 24.08.1982 at 1 p.m., found the following postmortem injuries on the dead body of the deceased Jhoolan:-. 1. Contused wound 3 cm x ½ cm x bone deep on the forehead x 5 cm above the right eyebrow blood clot present 2. Contused wound 2 cm x ½ cm x bone deep 1cm below the injury no.1, blood clots present 3. Contused wound 3 cm x ½ cm x bone deep on front of forehead 3 cm above the left eyebrow, blood clots present 4. Contused wound 3 cm x ½ cm x bone deep on left side of head and 8 cm above the left ear, blood clots present 5. Incised wound 3 cm x ½ cm x muscle deep on outer side of left arm just above the left elbow joint, blood clots present, margins sharp 6. Incised wound 3 cm x ½ cm x muscle deep outer side of left elbow joint, blood clots present, margins sharp 7. Incised wound 2 cm x ½ cm x muscle deep, margins sharp, blood clots present on the outer side just below the left elbow joint 8. Incised wound 3 cm x ½ cm x muscle deep on outer side of left forearm above wrist joint, margins sharp, blood clot present 9. Incised wound 2 cm x ½ cm x muscle deep, margins sharp, blood clots present on the outer side just below the left elbow joint 8. Incised wound 3 cm x ½ cm x muscle deep on outer side of left forearm above wrist joint, margins sharp, blood clot present 9. Contused wound 4 cm x ½ cm x muscle deep on the back of left index finger, blood clots present 10. Multiple contused wounds:-5 in number one below other on front of left leg upper half 3 cm x ½ cm x bone deep, blood clots present 11. Incised wound 5 cm x ½ cm x bone deep on front of right leg in middle, blood clots present 12. Incised wound 2 cm x ½ cm x bone deep on back of right elbow 6. Membranes of the brain as well as the brain were found to be congested. About 150 gm of semi-digested food, comprising of rice, was present in the stomach. In his opinion, the deceased had died due to haemorrhage as a result of ante mortem injuries. He further deposed that it was possible that the injuries found on the dead body of the deceased were caused on 22.08.1982 at about 10 p.m. The ante mortem injuries nos. 5, 6, 7, 8 and 11, in his opinion, could be caused by bamboo sticks with sharp edges and the remaining injuries which in his opinion, were simple in nature, could have been caused by lathi. 7. Following injuries were found on the person of PW3 Fagu:- 1. Lacerated wound 1-1/2 cm x ¼ cm x muscle deep in left forearm with swelling, 10 cm x 6 cm inner bone likely to be broken and bleeding 2. Bruised swelling 6 cm x 4 cm on left side of forehead 3. Lacerated wound ½ cm x ¼ cm x muscle deep, 10 cm x 6 cm on the back side of right elbow joint with bruised swelling 4. Bluish mark 2 cm x 1 cm with swelling 8 cm x 4 cm below the right forearm on its back side 5. Bluish mark 17 cm x 1-1/2 cm with a narrow line on the chest of red colour 6. Lacerated wound 7 cm x 1 cm x bone deep on the front side of right leg, bleeding in the middle 7. Bluish mark 17 cm x 1-1/2 cm with a narrow line on the chest of red colour 6. Lacerated wound 7 cm x 1 cm x bone deep on the front side of right leg, bleeding in the middle 7. Lacerated wound 1 cm x ½ cm x muscle deep on the right leg on the bottom 8. Lacerated wound 1-1/2 cm x ½ cm x muscle deep on the front side of the left leg in the middle 9. Bruised wound 4 cm x 3-1/2 cm on the left leg near injury no.8 10. Lacerated wound 1-1/2 cm x ½ cm x bone deep, 10 cm left below the knee joint on the right leg 11. Bruised swelling 8 cm x 6 cm on the front side of left knee joint 12. Bruised swelling 12 cm x 10 cm on the front side of left thigh where lower bone is likely to be broken 13. Bluish mark 12 cm x 4 cm on the left scapular region of red colour 14. Bluish mark 9 cm x 3 cm on the right scapular region of red colour 8. All the injuries except injury nos. 1, 3, 9, 10 and 12 were opined to be simple in nature. X-ray of injury nos. 1, 3, 9, 10 and 12 was advised. But there is no supplementary injury report available on the record suggesting that PW3 had not got his injuries x-rayed. 9. Following injuries were found on the person of PW4 Smt. Bhikhani:- 1. Bruised swelling 6 cm x 4 cm on the lower portion of the right arm where lower bone is likely to be broken 2. Bluish mark 4 cm x 1 cm on the left arm of red colour 3. Bluish mark 3 cm x 1 cm on the outer side of right arm of red colour 4. Bluish mark 4 cm x 2 cm on the right scapular region of red colour 5. Bluish mark 6 cm x 2 cm on the outer side of left thigh of red colour 10. Following injuries were found on the person of Kaushalya, daughter of deceased Jhoolan:- 1. Lacerated wound 2 cm x ½ cm x muscle deep on the right side of head, 8 cm inside the right ear bleeding 2. Bluish mark 3 cm x 1 cm on the right arm of red colour below the shoulder 3. Following injuries were found on the person of Kaushalya, daughter of deceased Jhoolan:- 1. Lacerated wound 2 cm x ½ cm x muscle deep on the right side of head, 8 cm inside the right ear bleeding 2. Bluish mark 3 cm x 1 cm on the right arm of red colour below the shoulder 3. Bluish mark 2 cm x 1 cm on the upper side of left shoulder. Pain was described in right thigh but no apparent injury found. 11. All the four accused in their statements recorded u/s 313 Cr.P.C., denied the prosecution case and alleged false implication. Appellant no.1, Harihar and appellant no.3 in their statements recorded u/s 313 Cr.P.C., further stated that Jhoolan had plucked guavas from the guava trees in excess of his share and when appellant no.1, Harihar objected, he started beating them and when they raised cries for help, the villagers retaliated in defense with lathi and danda. The defense also examined D.W.1, Dr. A.D.B. Singh and D.W.2, Dr. Suresh Chandra Pandey. 12. The injuries of A1 Harihar and A2 Moti Lal were examined by D.W.2 Dr. Suresh Chandra Pandey. 13. D.W.2 found following injuries on the person of A1 Harihar:- 1. Lacerated wound 3.5 cm x 0.5 cm x bone deep, 2 cm above left eyebrow on left forehead 2. Lacerated wound 4 cm x .05 cm x bone deep, 3 cm above nose on middle forehead 3. One lacerated wound 1 cm x 0.5 cm x muscle deep, between the left eyebrow 4. Swelled wound 4 cm x 3 cm on the outer side of left elbow joint 5. Bluish mark 4 cm x 1.5 cm on right forehead 3 cm above right eyebrow 14. He further noted following injuries on the person of A2 Moti Lal:- 1. Lacerated wound 5.0 cm x 7 cm bone deep, 9 cm above right joint 2. Bluish mark 3 cm x 2 cm on the outer side of forearm below the right elbow joint 3. Pain described on the back side but no apparent injury found 15. D.W.1 Dr. A.D.B. Singh in his evidence tendered before the Trial Court, deposed that on the date of the incident on 22.08.1982, he was posted as Medical Officer Incharge Eye Hospital, Padrauna while D.W.2 Dr. Suresh Chandra Pandey was posted in T.B. Clinic, Padrauna. He further deposed that Dr. D.W.1 Dr. A.D.B. Singh in his evidence tendered before the Trial Court, deposed that on the date of the incident on 22.08.1982, he was posted as Medical Officer Incharge Eye Hospital, Padrauna while D.W.2 Dr. Suresh Chandra Pandey was posted in T.B. Clinic, Padrauna. He further deposed that Dr. Suresh Chandra Pandey had examined the injuries of A1 Harihar and A2 Moti Lal on 22.08.1982 at 12:30 p.m. and 12:43 p.m. respectively and he had prepared their injury reports in his handwriting in his presence. 16. D.W.2 Dr. Suresh Chandra Pandey, who had examined the injuries of A1 Harihar and A2 Moti Lal testified that he had noticed 5 injuries on the person of A1 Harihar and 3 injuries on the person of A2 Moti Lal. All the injuries were simple and were caused by a blunt object including lathi. He further testified it was possible that the injuries found on the persons of A1 Harihar and A2 Moti Lal were caused on 22.08.1982 at 10 a.m. He proved the injury reports of A1 Harihar and A2 Moti Lal (as Ext. Kha-2 and Ext. Kha-3). 17. The learned VIIth Additional District and Sessions Judge, Deoria, after considering the respective submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted all the accused-appellants and awarded above-mentioned sentences to them. 18. Hence, this appeal. 19. The only question which arises for our consideration in this appeal is whether in the light of the injuries found on the person of A1 and A2 and the evidence on record that the deceased as well as the three injured had admittedly exchanged lathi blows with the accused-appellants, it is proved that the incident was a result of sudden provocation, neither pre-planned nor pre-meditated and whether the appellants were the aggressors as claimed by the prosecution. Record shows that the incident had taken place on 22.08.1982 at about 10:30 a.m. in the guava grove which the complainant claims was orally partitioned between the three sets of its co-sharers, the complainant, Lutawan and Harihar, Moti Lal and Jhoolan jointly in equal share. Record shows that the incident had taken place on 22.08.1982 at about 10:30 a.m. in the guava grove which the complainant claims was orally partitioned between the three sets of its co-sharers, the complainant, Lutawan and Harihar, Moti Lal and Jhoolan jointly in equal share. The F.I.R. reflects that deceased Jhoolan, who was also looking after the agricultural activities of the complainant as well, on the day of incident, was plucking guavas from his guava tree to which A1 Harihar and A2 Moti Lal objected on which an altercation took place between them which attracted A3 Lutawan and A4 Ram Subhag also to the place of incident, armed with lathi and ballam who then started chasing the deceased with the intention of beating him and when the complainant, PW4 Smt. Bhikhani and Kaushalya, wife and daughter of Jhoolan, tried to intercede, they were also belaboured by them. The noise raised by Ram Vilas, son of Jhoolan, who on getting scared upon witnessing the occurrence, had run towards the village, drew a large number of villagers to the place of occurrence. The deceased, and the complainant also retaliated by using lathis. In the incident, complainant, wife of Jhoolan and his daughter also received severe injuries as a result of which they had fallen on the ground in the grove. When the stick of Jhoolan was broken, he ran towards the west chased by the appellants, who after overpowering him in the rice field, beat him mercilessly and left the place of occurrence only after being admonished and challenged by the villagers, who had also arrived at the place of incident on hearing the noise. Record further shows that out of the four accused, A1 Harihar and A2 Moti Lal had also received injuries. Their injury reports are on record (as Ext.Kha.2 and Ext.Kha.3 respectively) duly proved by D.W.1 and D.W.2. We have already taken a note of their injuries herein above and it is not necessary to reproduce the same again. From the evidence of D.W.1 Dr. A.D.B. Singh and D.W.2 Dr. Suresh Chandra Pandey, it is proved that A1 Harihar and A2 Moti Lal had also sustained injuries in the same occurrence. He proved the injury reports of A1 Harihar and A2 Moti Lal (as Ext.Kha2 and Ext.Kha3). From the evidence of D.W.1 Dr. A.D.B. Singh and D.W.2 Dr. Suresh Chandra Pandey, it is proved that A1 Harihar and A2 Moti Lal had also sustained injuries in the same occurrence. He proved the injury reports of A1 Harihar and A2 Moti Lal (as Ext.Kha2 and Ext.Kha3). It is noteworthy that out of the four witnesses who were produced by the prosecution to prove its case against the accused-appellants, PW1 Dwarika and PW2 Jotia failed to support the prosecution case in their examination-in-chief and they were declared hostile. Both PW1 and PW2 were cross-examined by D.G.C. Criminal with the permission of the Court. But they stuck to the evidence which they had tendered in their examination-in-chief by deposing that they had not seen the accused beating the deceased, Fagu, Smt. Bhikhani and Kaushalya. 20. After very carefully scrutinizing and appraising the evidence of PW4 and PW5, we find that although PW3 Fagu has substantially supported the prosecution case as spelt out in the F.I.R. in his examination-in-chief, which finds further corroboration from the evidence deposed by PW4 Smt. Bhikhani, but there are material contradictions and inconsistencies in their evidence as tendered by them in their examination-in-chief and also in their cross-examination on the point of immediate cause of the incident which gives rise to a very strong suspicion that the true genesis of the occurrence has been deliberately suppressed by them and the prosecution has not approached the Court with clean hands. 21. In the F.I.R., there is no mention of the fact that Moti Lal and Harihar were carrying arms with them at the time when the altercation had started between them and the deceased Jhoolan. While Jhoolan claimed that he was plucking guavas from the tree which he claimed to be his, A1 Harihar and A2 Moti Lal asserted the same to be theirs. Similarly, the F.I.R. does not contain any recital to the effect that apart from the accused Moti Lal, Harihar and Ram Subhag, complainant Fagu, Smt. Bhikhani, wife of the deceased, Kaushalya and Ram Vilas, daughter and son of the deceased, another lady, Antiya, was also present at the place of incident. Likewise, there is no reference in the F.I.R. about the fact that the complainant and the deceased had assaulted the accused-appellants with lathis except for a faint recital that the complainant and the deceased had used lathis in self-defense. Likewise, there is no reference in the F.I.R. about the fact that the complainant and the deceased had assaulted the accused-appellants with lathis except for a faint recital that the complainant and the deceased had used lathis in self-defense. Moreover, both PW3 and PW4, in their examination-in-chief as well as in their cross-examination, have deposed that Harihar was armed with ballam while the remaining accused including A2 Moti Lal, were carrying lathis with them and at the time when Jhoolan was plucking guavas, he was carrying a danda with him. Neither the postmortem report of the deceased nor the injury reports of the injured reflect that any of them had received any injury which could be said to have been caused by ballam. PW3 Fagu further deposed on page 27 of the paper book in his cross-examination that he as well as Jhoolan had belaboured the accused with lathis. 22. PW4 Smt. Bhikhani has on page 29 and 30 of the paper book in her cross-examination further testified that the complainant Fagu had struck a couple of lathi blows to A2 Moti Lal and A1 Harihar and both sides had assaulted each other. Further there is a contradiction in the evidence of PW3 and PW4 on the point whether the grove in question was actually partitioned on the spot in metes and bounds by raising medhas. Although PW3 has denied that no medh was raised separating the respective portions of the parties in the grove but PW4 on page 31 of her cross-examination stated otherwise by deposing “Zamin mein medh bani hui hai. Do balishtha oonchi medh bageeche ki bani hui hai.” 23. Thus, upon a careful appraisal of the evidence of PW3 and PW4, we come to the conclusion that on the basis of their evidence, it cannot be held that any actual partition of the grove had taken place between the complainant, his brother Lutawan and Harihar, Moti Lal and Jhoolan, sons of Hansraj, deceased brother of the complainant by metes and bounds. It is further not conclusively proved from their evidence that the accused-appellants are the aggressors. There is no mention in the F.I.R. about A1 Harihar and A2 Moti Lal being dealt lathi blows by the complainant Fagu or the injuries received by them in the occurrence which followed the altercation. It is further not conclusively proved from their evidence that the accused-appellants are the aggressors. There is no mention in the F.I.R. about A1 Harihar and A2 Moti Lal being dealt lathi blows by the complainant Fagu or the injuries received by them in the occurrence which followed the altercation. We have already noticed that two persons from the side of the accused A1 Harihar and A2 Moti Lal had received multiple injuries. It is true that the injuries sustained by A1 Harihar and A2 Moti Lal were found to be simple in nature. But there is no evidence on record indicating that their injuries were either self-inflicted or superficial or manufactured. 24. The issue which next engages our attention is that whether on the facts and circumstances of the case and the evidence on record, the recorded conviction of the accused-appellants u/s 302/34 I.P.C. and the sentence of life imprisonment awarded to them by the Trial Court, can be maintained or is liable to be converted to one u/s 304/34 I.P.C., part 1 or part 2. It is not proved from the evidence on record that the guava grove had been partitioned between its different co-sharers by metes and bounds and the tree from which the deceased was plucking guavas had fallen to his share. It is also not clear from the evidence on record as to which party is the aggressor. The evidence on record indicates that the occurrence was an offshoot of an altercation between the deceased Jhoolan and A1 Harihar and A2 Moti Lal when Jhoolan started plucking guava from a guava tree which A1 Harihar and A2 Moti Lal claimed to be theirs and objected on which he retorted by saying that the tree belonged to him. It appears that soon the altercation took an ugly turn which was also attracted A3 and A4 to the crime scene and thereafter, both the sides belaboured each other with lathis, though it is alleged that the deceased was assaulted by one of the accused who was carrying ballam, but the postmortem report of the deceased indicates no injury which can be said to have been caused by ballam. It is true that the deceased received as many as 12 injuries which included contusions and incised wounds and PW3 Fagu, PW4 Smt. Bhikhani and Kaushalya, daughter of deceased also received injuries. 25. It is true that the deceased received as many as 12 injuries which included contusions and incised wounds and PW3 Fagu, PW4 Smt. Bhikhani and Kaushalya, daughter of deceased also received injuries. 25. The motive for committing the offence as suggested by the prosecution does not appear to be of such a magnitude so as to instigate the accused to commit such a ghastly crime. It appears that the occurrence was a result of sudden provocation and it was neither pre-planned nor pre-meditated. In the heat of the moment, the parties started exchanging lathi blows. It is true that when the lathi of deceased Jhoolan was broken and he ran towards the west to save his life, the accused chased him and overpowered him and even after he had fallen on the ground, they continued to beat him, causing multiple injuries to him which later accounted for his death. However, out of the 12 antemortem injuries found on the dead body of the deceased except for injury no. 1, 2, 3 and 4 which were on the forehead and left side of head of the deceased, the remaining injuries were on non-vital parts of the deceased. PW10 Dr. H.C. Gupta, who had conducted the postmortem on the dead body of the deceased on 24.08.1982 in his evidence tendered before the Trial Court, deposed that injury nos. 5, 6, 7, 8 and 11 noted on the dead body of the deceased, could have been caused by bamboo sticks with sharp edges while the remaining injuries could have been caused by lathis. The injuries caused by bamboo sticks in normal conditions were sufficient to cause death. He also deposed that except 1, 2, 3 and 4 injuries, which were on the head of the deceased, the remaining injuries were inflicted by the deceased on non-vital parts of the dead body of the deceased. 26. PW7 Dr. C.B. Singh, who had examined the injuries of Smt. Bhikhani at 17:10 hours on 22.08.1982 had noted 5 injuries on her person which according to him were simple in nature except injury no. 1 which was advised to be kept under observation and x-ray was advised. PW7 had also examined the injuries of Kaushalya, daughter of the deceased on the same day and had noted 3 injuries which according to him were simple in nature. 27. PW8 Dr. A.K. Jaiswal, who had x-rayed the injury no. 1 which was advised to be kept under observation and x-ray was advised. PW7 had also examined the injuries of Kaushalya, daughter of the deceased on the same day and had noted 3 injuries which according to him were simple in nature. 27. PW8 Dr. A.K. Jaiswal, who had x-rayed the injury no. 1 of Kaushalya, deposed that she had fracture in her right arm. We have already taken note of the fact that out of the four accused, Harihar and Moti Lal had also sustained injuries in the occurrence. 28. In our opinion, on the basis of evidence on record, the commission of offence by the accused-appellants u/s 302/34 I.P.C. is not established. The ingredients necessary to constitute an offence u/s 302 I.P.C. are conspicuous by their absence in the instant case. Upon a wholesome analysis and a critical scrutiny of the oral as well as the documentary evidence on record and the facts and circumstances of the case, it transpires that the incident in which the deceased had lost his life, was neither pre-planned nor pre-meditated but was caused by grave and sudden provocation, caused by the deceased, when he insisted on plucking guavas from a tree which the appellants claimed to belong to them and objected, on which the deceased asserted his claim over the guava tree and altercation followed between them, leading to exchange of lathi blows. The offence committed by the appellants, in our opinion, amounts to culpable homicide, not amounting to murder. The evidence on record further indicates that the act of the appellants by which death of Fagu was caused, was done with the intention of causing death but the same was neither pre-planned nor pre-meditated and was a result of sudden provocation. Record also shows that A1 Harihar and A3 Lutawan @ Lutan were aged about 45 years and 55 years respectively on 21.05.1985 which is the date on which their statements u/s 313 Cr.P.C. was recorded while A2 Moti Lal and A4 Ram Subhag were aged about 25 years each on the day of their examination u/s 313 Cr.P.C. Thus, today the appellant nos. 1, 2, 3 and 4 are aged about 77 years, 57 years, 87 years and 57 years respectively. 29. 1, 2, 3 and 4 are aged about 77 years, 57 years, 87 years and 57 years respectively. 29. Thus, in our opinion, the ends of justice will be met if the recorded conviction of the appellants u/s 302/34 I.P.C. is scored out and altered to one u/s 304/34 (1) I.P.C. and the sentence of imprisonment for life awarded to them is paliated to 10 years rigorous imprisonment each. While maintaining the conviction of the appellants and the sentence awarded to them u/s 324/34 I.P.C., we alter their conviction from Section 302/34 I.P.C. to 304/34 (1) I.P.C and substitute the life sentence awarded to them by 10 years rigorous imprisonment with a fine of Rs.10,000/- in case of default of payment of fine, the appellant shall be liable to undergo three years additional rigorous imprisonment. 30. The appeal stands allowed in part. 31. The impugned judgement and order dated 14.10.1985 passed by VIIth Additional Sessions Judge, Deoria in S.T. No. 64 of 1984 by which they have been convicted and sentenced to imprisonment for life u/s 302/34 I.P.C., two years and six months rigorous imprisonment u/s 324/34 and 323/34 I.P.C., each on both grounds, is modified to the extent indicated herein above. The appellants are on bail. Their bail bonds shall be cancelled and their sureties discharged. The appellants shall be taken into custody forthwith and sent to jail for serving of the remaining part of their sentence. 32. There shall be however no order as to costs.