JUDGMENT Goverdhan Bardhar, J. - This criminal appeal under Section 374 of the Code of Criminal Procedure (for short, 'the CrPC') has been filed by five accused-appellants assailing Judgment and Order dated 19.12.1990 passed by learned Additional District & Sessions Judge, Jaipur District Jaipur, in Sessions Case No.10/1982, whereby learned trial court convicted and sentenced the accused-appellants as follows- Accused-appellants Sentence under Section of the IPC Ramji Lal 302-Life Imprisonment with fine of Rs.200/-; in default, to further undergo one month rigorous imprisonment. 323/149- To undergo three months rigorous imprisonment. 452/149- To undergo three months rigorous imprisonment with fine of Rs.200/-; in default, to further undergo one month rigorous imprisonment. Ganpat Dev, Ram Sharan, Om Prakash @ Prakash, Mst. Suni Devi, Mst. Mali Devi and Babu Lal 147, 323/149, 452/149 IPC but given the benefit of section 360 Cr.P.C and granted probation for maintaining peace for two years All sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that the complainant Bhura Mal s/o Shri Deena Nath (PW7), by caste Brahmin, resident of Chandwaji, submitted a written report (Ex.P1) to SHO, Police Station, Chandwaji to the effect that on 10.10.1984 when her sister was cleaning the utensils in the corner of the home, Ganpat who used to reside in the same house after taking meals came there and spat impure water from his mouth. Some drops thereof fell on the clean utensils and upon her sister. His father reprimanded Ganpat at his fault, upon this Ganpat, Ganpat's elder son Ramji Lal and Prakash abused his father and started beating to him by legs and fists. At that time, Sitaram, Postman intervened and saved them. Afterwards, Babulal, who is son of Ganpat's brother-in-law went to Jaipur and called Ram Sharan. At about 6:00 P.M. Deenanath was sitting with Kavita aged 9-10 months child (daughter of the complainant Bhuramai) in his lap. The complainant further mentioned that after completing his duty from Achrol he arrived at his house and at that time Ganpat was sitting in Veranda of the room. Ganpat told his son Prakash that now since the complainant has come, the whole plan would be spoiled. Upon saying so, Ramji Lal, Ram Sharan and Babu Lal came from the roof of the house on the ground-floor. They were armed with 'lakdies'/lathies. Mali and Suni Devi also came down stairs. Ganpat told his son Prakash that now since the complainant has come, the whole plan would be spoiled. Upon saying so, Ramji Lal, Ram Sharan and Babu Lal came from the roof of the house on the ground-floor. They were armed with 'lakdies'/lathies. Mali and Suni Devi also came down stairs. Ganpat and Prakash also took 'lakdies' in their hands. Ganpat extorted all not to wait and kill them. Upon this, first of all, Prakash delivered one blow by 'lakdi' on his right hand. Ramji Lal entered in their another room in which his father was sitting. The complainant further mentioned that first of all his father was beaten by Ramji Lal. At that time, his daughter Kavita was in the lap of his father. Ramjilal gave one 'lathi' blow on the head of his daughter, due to which she received grievous injury on her head. Afterwards all these persons including Mali and Suni Devi started beating them with 'lakdies' and fists. 3. Shambhu Dayal, Sitaram, Balji, Kalyan etc. came there after hearing the noise, they intervened and saved them. His daughter Kavita became unconscious. The complainant further mentioned that he, his father Deenanath, his wife and mother received multiple injuries on their person. His father took his daughter Kavita along-with him to Shahpura Hospital for treatment, where Kavita was declared brought dead. After leaving his father in hospital, he went to police station with dead body of Kavita to lodge the report. On the basis of aforesaid written report (Ex.P1), an F.I.R. No.92/1981 (Ex.P2) was registered for the offences under sections 147, 148, 149, 452, 302, 323, 120B IPC. Investigation commenced. The police arrested the accused-appellants and filed challan against them. The trial court framed charges for the said offences. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined 14 witnesses and also exhibited 35 documents. The defence, in support of its case, did not produce any evidence but the statements under section 161 Cr.P.C were marked as Exhibits D1, D2, D3 and D4. The trial court, after hearing both the parties, vide impugned judgment and order convicted and sentenced the accused-appellants in the manner indicated above. Hence this appeal. 4. The defence, in support of its case, did not produce any evidence but the statements under section 161 Cr.P.C were marked as Exhibits D1, D2, D3 and D4. The trial court, after hearing both the parties, vide impugned judgment and order convicted and sentenced the accused-appellants in the manner indicated above. Hence this appeal. 4. Learned counsel for the accused appellants argued that learned trial court while passing the impugned judgment of conviction has failed to consider the statement of Suman Devi Sharma (PW6), who in her testimony admitted that some of the accused persons also received injuries in the alleged occurrence. The accused persons had a right of private defence to their person. The occurrence did not take place in the manner as alleged by the prosecution. There was no previous enmity between the parties. Learned counsel argued that Kavita received injuries due to fall on the ground from the lap of Deenanath. Learned counsel argued that independent witnesses did not support the prosecution story and some of the independent witnesses who were present at the time of alleged occurrence, were not produced by the prosecution. Most of the witnesses produced by the prosecution are interested. Learned counsel argued that the learned trial court while passing the impugned judgment has committed error in not considering the statements of Deenanath (PW2), Savitri (PW5) and Bhuramal (PW7) trustworthy despite material contradictions, improvements and omissions in their testimony. The allegation against accused appellant No.1 Ramjilal for causing injury on the head of Kavita is an after thought. The statements of Savitri (PW5) and other eye-witnesses clearly show that false allegation has been made against Ramjilal only to implicate him in this case inspite of the fact that he did not cause any injury on the head of Kavita. The learned trial court has also failed to consider the statement of Dr. Ghanshyam Dass Ladda (PW14) who in his statement deposed that no injury was given on the head of Kavita by lathi. The accused appellants had no common object to commit the said offence. Learned counsel for the accused appellants argued that there was no motive for commission of the offence and as per the case of the prosecution itself, prior to the incident there was a petty altercation. The accused appellants had no common object to commit the said offence. Learned counsel for the accused appellants argued that there was no motive for commission of the offence and as per the case of the prosecution itself, prior to the incident there was a petty altercation. It is very much probablise that Kavita fell on the ground from the lap of Deenanath when the beating (marpeet) was going on and the injury may be result of fall. The injury also shows that the blow by 'lakdi' was given on her intentionally. 5. Learned Public Prosecutor opposed the appeal and supported the impugned judgment and referred to testimony of all the witnesses. He argued that the judgment passed by the learned trial court is perfectly justified and does not call for any interference. 6. We have given our anxious consideration to rival submissions of learned counsel for the accused-appellants as also learned Public Prosecutor and also minutely scanned the material on record. 7. It may be noted at the outset that the accused appellants Ganpat Dev and Smt. Suni Devi have died during the pendency of the appeal and the appeal for them was taken to be abated. The appeal now survives in respect of accused appellants Ramjilal, Ram Sharan, Om Prakash @ Prakash, Mst. Mali Devi and Babu Lal. 8. Before proceeding further, we think it just and proper to mention the ante-mortem injuries on the dead body of the deceased Kavita and nature of injuries found on the persons of injured, as per injury reports, recorded by Dr. Ghanshyam Dass Laddha (PW14). 9. Postmortem report of deceased Kavita is Ex.P29. The autopsy on the dead body of the deceased was conducted on 11.10.1981 at 11:30 A.M. by Dr. Ghanshyam Dass Laddha (PW14). During the course of autopsy following injury was found on the person of the deceased:- "1. Lacerated wound in parietal region (vertex) and in mid line placed vertically size 3/4"x1/2"x1/4" wound." All above injury is ante mortem in nature. The opinion given as to cause of death of deceased Kavita is reproduced as under:- "In my opinion the death was caused due to head injury leading to hemorrhage and shock." 10. Dr. Ghanshyam Dass Laddha (PW14) deposed that on 11.10.1981 he was posted as Medical Officer, Government Hospital, Achrol. He examined Kavita (deceased). The opinion given as to cause of death of deceased Kavita is reproduced as under:- "In my opinion the death was caused due to head injury leading to hemorrhage and shock." 10. Dr. Ghanshyam Dass Laddha (PW14) deposed that on 11.10.1981 he was posted as Medical Officer, Government Hospital, Achrol. He examined Kavita (deceased). She sustained one injury which was Lacerated wound in parietal region (vertex) dimension of which was 3/4"xl/2"xl/4". The aforesaid injury was of blunt weapon. 11. Dr. Ghanshyam Dass Laddha (PW14) further deposed that on 11.10.1981 he examined Phooli Devi. She sustained two injuries. The first injury was bruise with dimension 2"x 1cm. on left shoulder joint, which was of blunt weapon and was simple in nature. Second injury was pain in left shoulder joint. This witness deposed that on 11.10.1981 he examined Bhoora Mal (PW7). He sustained three injuries. The first injury was bruise with dimension 1-1/2"x 1cm. on lower / of right upper arm, which was of blunt weapon and was simple in nature. The second injury was abrasion with dimension 1-1/2"x 1cm. in lower part of back in right side, which was of blunt weapon and was simple in nature. The third injury was linear abrasion with dimension 1-1/2" in length on lateral aspect of right forearm 2" above right wrist joint, which was of blunt weapon and was simple in nature. This witness also deposed that on 11.10.1981 he examined Savitri Devi (PW5). The first injury was bruise with dimension 3/4" x 1/2" cm. on dorsal aspect of left shoulder join, which was of blunt weapon and was simple in nature. The second injury was lacerated wound with dimension 1/2" x 1/4" x 1/8" cm. in occipital region of head in mid line, which was of blunt weapon and was simple in nature. This witness deposed that on 11.10.1981 he examined Om Prakash Sharma. He sustained three injuries. The first injury was bruise with dimension 2"x 1" cm. in infra scapular region left side, which was of blunt weapon and was simple in nature. The second injury was bruise with dimension 1-1/2"x 3/4" cm. in infra scapular region left side, which was of blunt weapon and was simple in nature. The third injury was abrasion with dimension 1-1/2" x 1/2" in in left infra scapular region, which was of blunt weapon and was simple in nature. The second injury was bruise with dimension 1-1/2"x 3/4" cm. in infra scapular region left side, which was of blunt weapon and was simple in nature. The third injury was abrasion with dimension 1-1/2" x 1/2" in in left infra scapular region, which was of blunt weapon and was simple in nature. This witness also deposed that on 11.10.1981 he also examined Ganpat Dev Sharma. The first injury was bruise with dimension 4" x 3/4" cm. on upper 1/2 and lower 1/2 of thigh (mid thigh) in front on left side, which was of blunt weapon and was simple in nature. The second injury was pain left elbow joint, which was simple in nature. This witness deposed that on 11. 10.1981 he also examined Ramji Lal Sharma. He sustained three injuries. The first injury was lacerated wound with dimension 1/2" x 1/8" x 1/8" cm. in right parietal region 2" away from mid line, which was of blunt weapon and was simple in nature. The second injury was lacerated wouind with dimension 1/2"x1/2"x skin deep on forehead in mid line and frontal bone 2" above nasion on back of left elbow joint, which was of blunt weapon and was simple in nature. The third injury was pain in left elbow joint. 12. Now we have to examine as to whether the trial court has rightly found that the appellants, with common object, committed murder by causing the ante-mortem injury suffered by the deceased. As per the case of the prosecution, out of 14 witnesses examined by the prosecution, the eye witnesses of the incident are seven, namely; Deenanath (PW3), Savitri (PW5), Suman Devi Sharma (PW6), Bhura Mal (PW11), Madan Lal @ Balu (PW8), Saraswati (PW10) and Sitaram (PW11). However, Saraswati (PW10) and Sitaram (PW11) did not support the prosecution story and turned hostile. Rest of the eyewitnesses deposed about the role of the appellants in commission of the crime. 13. Complainant Bhura Mal (PW7) in examination-in- chief reiterated the averments made in the written report (Ex.P1). This witness in cross-examination deposed that he goes to school at 9:00 A.M. and return back from there at 6:00 P.M. The day on which quarrel took place, there was no darkness in the evening. At 7:00 P.M. there was darkness. He reached Shahpura at 6:45 P.M. and thereafter he went to home. This witness in cross-examination deposed that he goes to school at 9:00 A.M. and return back from there at 6:00 P.M. The day on which quarrel took place, there was no darkness in the evening. At 7:00 P.M. there was darkness. He reached Shahpura at 6:45 P.M. and thereafter he went to home. When he reached at the home, his father told him that at about 10:00 A.M. Ganpat, Prakash, Babulal and Ramjilal gave blows by 'lakdies'. This witness deposed that his father also told him that he (his father) was saved by his sister Suman and wife Savitri. When both of them came to save, they were also given beating by 'lakdies'. This witness deposed that when alleged beating was given, his daughter was with whom, nobody has told him about this. This witness deposed that when the accused persons were beating him, they also gave beating to his father and the intention of the accused persons was to kill him. This witness also deposed that he did not see any injury on the person of Ganpat, Ramji Lal and Prakash. This witness further deposed that Kavita did not receive the injury due to fall on the ground but Ramjilal inflicted a 'lathi' blow on her head. 14. Deenanath (PW3) father of complainant Bhuramal deposed that when Suman was cleaning the utensils, Ganpat who also resides in the same house after taking meals threw impured water from the mouth. When he stopped to do so, Ganpat, Ramjilal, Prakash, Babu started to give beating by 'lathies'. Sitaram, Saraswati, Shambhu Dayal intervened and saved them. Due to fear they did not enter in the house and they sat and remained outside of the house. In the evening at 6:00 P.M. his son arrived. When he entered in the room, Ganpat, Ramjilal, Prakash, Ramcharan, Babulal, Soni and Mali started quarrelling. At that time he was sitting in the house with Kavita in his lap. Ramjilal inflicted a lathi blow on his hand. He (Ramjilal) inflicted a second 'lathi' blow on the head of Kavita. He became unconscious. Blood oozed from his head. 15. Savitri (PW5) deposed that at around 5:00 P.M. his father-in-law was sitting in the room along-with her daughter Kavita. Ganpat, Ramjilal, Ramsharan, Prakash, Babulal were armed with 'lathies'. His father-in-law was beaten by Ganpat and Ramjilal by 'lathies'. He (Ramjilal) inflicted a second 'lathi' blow on the head of Kavita. He became unconscious. Blood oozed from his head. 15. Savitri (PW5) deposed that at around 5:00 P.M. his father-in-law was sitting in the room along-with her daughter Kavita. Ganpat, Ramjilal, Ramsharan, Prakash, Babulal were armed with 'lathies'. His father-in-law was beaten by Ganpat and Ramjilal by 'lathies'. At that time her husband also arrived at home from the duty. Her husband was also beaten by Ramjilal and Babulal. Ramjilal and Ganpat gave beating to her with 'lathies'. Ramjilal gave a fist blow to her 'Nanad' Suman. Ramjilal inflicted a 'lathi' blow on the head of his daughter Kavita, due to which she died. Shambhu and Prakash intervened. Her mother-in-law was also beaten by Ramsharan and Prakash. 16. Suman Devi Sharma (PW6) deposed that about 4-5 months ago at about 10:00 A.M. when she was cleaning the utensils, Ganpat after taking his food, threw impured water from his mouth upon her. When her father stopped Ganpat at fault to do so, Ganpat abused her father. Along-with Ganpat, Ramjilal, Babulal and two more persons who were also there, started to beat her father by legs and fists. Babulal pushed her father outside. At that time, her mother went for lunch on an invitation at the residence of Bherulal. She called back her mother but these persons did not allow them to enter in the house. This witness further deposed that in the evening Ramjilal, Ramsharan, Babulal, Ganpat, Prakash gave beating to her brother, father, 'bhabhi by 'lathies'. Kavita aged nine months, daughter of his brother, who was sitting in the lap of her father, was inflicted with a 'lathi' blow on her head due to which she died. 17. Madan Lal @ Bala Sahay (PW8) deposed that on the date of incident he went to Chandwaji for taking stones for his house and at that time he was sitting at Chandwaji Bus Stand. At that time he heard about incident of quarrel took place with Deena Sahay and Ganpat and at around 12:30 P.M. he went to the house of Ganpat and Deena Nath but at that time he found that no quarrel took place in between them. This witness further deposed that when he went to take sugar in the market, Bheru Lal was returning from the shop of 'Seth' with sugar. This witness further deposed that when he went to take sugar in the market, Bheru Lal was returning from the shop of 'Seth' with sugar. At that time he heard the noise of quarrel in the house of Deenanath and Ganpat. He immediately reached there. He saw 'lakdies' in the hands of Ramjilal, Ganpat, Om Prakash and Ram Sharan. Ramjilal and Ganpat inflicted a 'lakdi' blow on the head of Deena Nath and blood was oozing out from his head. This witness deposed that these persons also gave beating to Kavita aged 6-7 months. 18. Shankarlal (PW2) is witness of Ex.P2 (inquest report), Ex.P4( site plan), Ex.P5 (seizure memo of sample of while colour pieces of flour), Ex.P6 (seizure memo of one gents dhoti and bed-sheet blood smeared) and Ex.P7 (seizure memo of pieces of flour). Sitaram (PW4) is a witness of recovery of 'lathies'. 19. It is pertinent to note that intention to cause death can be gathered from the nature of injuries inflicted by the accused. 20. Postmortem report (Ex.P29) indicate one injury on the person of deceased Kavita, which is as under:- (15 of 18) "1. Lacerated wound in parietal region (vertex) and in mid line placed vertically size 3/4"x1/2"x1/4" wound." 21. The above injury was lacerated wound inasmuch as there being no injury by sharp edged weapon on the head of deceased Kavita. The allegation against accused appellant No.l- Ramjilal has been consistently made by the eye witnesses that lathi blow was caused by the accused appellant No.l Ramjilal on the head of the deceased, which is medically corroborated in post mortem report of the deceased (Exhibit P-29). In the cross fight that ensued, members of accused party also sustained injuries. All the injuries on the person of injured are simple in nature. On the other hand, post mortem report (Exhibit P-29) as also reports of injuries sustained by three accused injured namely Om Prakash @ Prakash, Ganpat and Ramjilal (Exhibit P-33 to Exhibit P-35 respectively), who sustained number of injuries have been proved by Dr. Ghanshyam Dass Laddha (P.W.14). Evidence in this case thus clearly shows that both the sides have received injuries in the same incident. In the scuffle that ensued, accused appellant inflicted a 'lathi' blow on Deenanath, which missed him and accidentally hit the head of the baby Kavita, who then was in the lap of her grandfather. Ghanshyam Dass Laddha (P.W.14). Evidence in this case thus clearly shows that both the sides have received injuries in the same incident. In the scuffle that ensued, accused appellant inflicted a 'lathi' blow on Deenanath, which missed him and accidentally hit the head of the baby Kavita, who then was in the lap of her grandfather. Obviously, the accused Ramji Lal had no intention to kill Kavita but certainly had knowledge that injury that he caused was likely to result in her death. The parties are neighbourers and dispute in between them started with trifle dispute of Ganpat spitting impure water upon Suman. Therefore, charge of offence of culpable homicide not amounting to murder can at the maximum be held to have been proved against the accused-appellant No.l Ramjilal which falls under Section 304 Part II IPC . However, the statements of Deenanath (PW3), Savitri (PW5), Suman Devi Sharma (PW6), Bhoora Mai (PW11) and Madan Lal @ Balu (PW8) who, as per the case of the prosecution, are eye-witnesses of the incident, clearly reveal that there was no motive behind the incident and the incident is said to be offshoot of altercation which had taken place on a very petty matter. The accused appellant No.1 Ramji Lal caused only one injury on the parietal region and that too from the 'lakdi (lathi)'. All these facts go to show that the appellant No.1 Ramji Lal had no intention to commit murder of the deceased and he had also no intention to cause the particular injury on the head. We are, therefore, of the confirm opinion that the appellant No.1- Ramji Lal cannot be held liable Under Section 302 IPC for causing murder of the deceased Kavita and he can be held liable Under Section 304 II IPC as he caused such bodily injury which was likely to cause death of Kavita. 22. In the fact situation of the case, it is apparent, while attacking Deenanath, Kavita, who was in his lap accidentally received the head injury and it can not be inferred from facts and circumstances of the case that the appellants intended to kill the child of 9-10 months. It was outcome of sudden fight in heat of passion upon sudden quarrel with no motive per se to kill her, as the incident appears to have occurred all of a sudden. It was outcome of sudden fight in heat of passion upon sudden quarrel with no motive per se to kill her, as the incident appears to have occurred all of a sudden. Suman Devi Sharma (PW6) specifically stated that Kavita did not hurt due to fall from lap on the ground but Ramjilal gave 'lathi' below on head as she was in the lap of her father. Evidence of Suman Devi Sharma (PW6) is corroborated by the statement of injured witness Deena Nath. In such a situation it cannot be said that the appellants acted in cruel or casual manner and the case against them clearly falls within Exception 4 of Section 300 IPC. Suman Devi Sharma (PW6) admits that accused Ganpat, Ramjilal and Prakash also received injuries in the incident. Dr. Ghanshyam Dass Laddha (PW14) deposed that he examined injured Phooli Devi, Bhura Mal, Savitri Devi, Om Prakash, Ganpat Dev, Ramjilal and prepared injury reports of injured Ex.P30 to Ex.P35. 23. In the result, the appeal deserves to succeed in part and is partly allowed. Conviction and sentence of accused-appellant Ramji Lal for offence under Section 302 IPC is set aside and instead he is convicted for offence under Section 304 Part II IPC and sentenced to rigorous imprisonment of five years with fine of Rs. 25,000/-, in dafault of payment of fine, he shall further undergo simple imprisonment of one year. Conviction and sentence of accused-appellant Ramji Lal for offence under Sections 147, 323 read with Section 149 and 452 read with Section 149 IPC is maintained. Upon deposit of amount of fine by the accused-appellant, the same shall be paid to father of the deceased. As regards accused-appellants Ganpat Dev, Ram Saran, Om Prakash @ Prakash; Mst. Suni Devi and Mst. Mali Devi and Babu Lal, considering that they have been extended benefit of probation under Section 360 Cr.P.C., they are held entitled to benefit of Section 12 of the Probation of Offenders Act. Present appeal qua accused-appellant no. 2, Ganpat Dev son of Laxmi Narayan and accused-appellant no. 5, Mst. Suni Devi stands abated.