JUDGMENT Mohammad Rafiq, J. - This appeal has been filed by Ghanshyam and Nanak against the judgment dated 6.12.1990 whereby they were convicted for offence u/s.302/34 IPC and sentenced to life imprisonment with a fine of Rs. 500, in default whereof to further undergo simple imprisonment of six months. They were also convicted for offence under Section 323/34 IPC and sentenced to simple imprisonment of one month. Both the sentences were ordered to run concurrently. 2. It may be at the outset noted that during the pendency of the appeal, appellant no.2-Nanak S/o Shri Sua Lal expired on 6.10.2002. His death certificate has been placed on record. The appeal qua him thus abates and now therefore survives only in respect of appellant no.1 Ghanshyam S/o Ram Nath. 3. The facts of the case are that a written report was lodged by Gullu @ Surendra before SHO, P.S. Ramganj, District Ajmer on the allegation against the accused-appellants that they along with 7 other persons gave beating to the Rajendra and Dhanna @ Rajendra S/o Mool Chand by 'lathis' and iron rod. They thereby got serious injurious and ultimately Rajendra S/o Mool Chand died. Charge-sheet has been filed against the accused-appellants for offence under Sections 147, 148, 307/149, 302/149, 302/34 and 307/34 IPC by the prosecution before the Court of Judicial Magistrate No. 5, Ajmer, who committed the same to the Sessions Court, wherefrom, it was made over to the court of Additional Sessions Judge, Ajmer for the trial. The trial court has framed the charges and read over the same to appellants, who denied the same and claimed to be tried. During the course of trial, the prosecution has examined 14 witnesses and exhibited 40 documents. The defence produced 2 witnesses and exhibited 4 documents. After considering the statement of prosecution witnesses and arguments, the trial court has convicted and sentenced the accused-appellants vide impugned judgment as indicated above. Hence this appeal. 4. Shri Sanjay Gangwar, learned counsel for the accusedappellant- Ghanshyam has contended that the trial court was in error while convicting the accused-appellant Ghanshyam for the offence of murder where there is no evidence on record regarding author of fatal injury. In the FIR, there were general allegations that all the accused persons of Gautam Nagar have beaten the injured and deceased, however no particular act has been attributed to any accused. In the FIR, there were general allegations that all the accused persons of Gautam Nagar have beaten the injured and deceased, however no particular act has been attributed to any accused. Further Bhola (PW-7), Surendra (PW-7), Rajendra (PW-8), Rajendra (PW-9) and Mahendra Kumar (PW-10) do say in their statement that who inflicted the fatal blow. Surendra (PW-8) has stated that Ghanshyam has given iron rod blow on the head of the deceased and all other accused persons gave beating by 'lathis' and stones. This witness does say regarding the author of fatal injury. Even Rajendra (PW-9) and Mahendra (PW-10) have stated that both the accused-appellants caused injuries on head and chest of the deceased. They too does say who was the author of fatal injury. The trial court wrongly believed the statements of Rajendra injured and Mahendra Kumar, whereas statements of both these persons are contradictory to each other. Mahendra (PW-10) has stated that 10 to 12 persons were running towards the deceased and injured Rajendra and accused appellants were having 'iron rod' and they inflicted it on the chest and head of deceased. This witness further stated that co-accused Khiladi has also inflicted 'kulhari' blow from the reverse side on the head and chest and Ashok Kumar pelted stones on the chest of the deceased whereas Dr. B.L. Bhatiya (PW-13) has found only one injury on the chest. This shows that this witnesses has seen the occurrence and he has given false version in the court only to implicate the accused persons. 5. Learned counsel submitted that the prosecution failed to prove the presence of the eye witnesses on the spot. The prosecution has made any site plan showing the place of witnesses from where they have seen the occurrence. This circumstance shows that the witnesses were present at the place of occurrence. 6. Learned counsel submitted that the trial court while acquitting the accused appellants for offence u/s.147, 148, 302/149 and 307/149 IPC on the one hand disbelieved the statement of Dhanna @ Rajendra (PW9) and Mahendra Kumar (PW10), but on the other hand, has believed those very witnesses for convicting accused-appellant for the offence u/s.302/34 IPC. This approach of the trial court is erroneous, illegal and contrary to principle of criminal jurisprudence. This approach of the trial court is erroneous, illegal and contrary to principle of criminal jurisprudence. It is contended that since the trial court has acquitted all the accused persons including the appellant-Ghanshyam of the charge under Section 149 IPC, the charge under Section 149 does stand. Every person is liable for this own act and therefore cannot be convicted with the aid of Section 34 IPC. 7. Shri Sanjay Gangwar, learned counsel for the accusedappellant submitted that the trial court has considered the fact that prosecution witnesses have stated in their statements that there are 10 to 12 persons, who were beating the deceased and injured and only 9 persons were made accused. No identification parade was got conducted to prove their participation in the crime. The prosecution has recorded the statement of the independent persons and only produced relative of the deceased who were interested witnesses. This fact shows bias of the investigating authority and therefore whole investigation is unfair and illegal and trial based on such investigation is illegal. Hence conviction order of accused appellant has become also illegal. 8. Learned counsel for the accused-appellant argued that the only eye witness, who can be relied is the injured eye witness i.e. Dhanna @ Rajendra. Even his testimony is clear and categorical as to which injury on the body of the deceased was caused by which accused. Learned counsel in this connection referred to the statement of Dr. V.D. Kabiya, who proved the injury report of the deceased (Ex.P7). While injury no.4 to 6 were opined to be simple in nature, but x-ray report was advised for injury no.3. When injured Rajendra S/o Mool Chand Koli died, his postmortem was conducted in which seventh injury was shown to be blackening of left eye. That postmortem report has been proved by Dr. B.L. Bhatiya (PW-13). Learned counsel referred to his testimony in this respect. Even according to the statement of this Doctor, injury no.3 was fatal injury. It is in this context that the statement of Dhanna @ Rajendra if read make it clear that accused-appellant Ghanshyam was the author of that injury though this witness has stated that Nanak and Ghanshyam were the first one, who inflicted injuries on the person of the deceased. Nanak Ram had 'lathi' and Ghanshyam had an iron rod. It is in this context that the statement of Dhanna @ Rajendra if read make it clear that accused-appellant Ghanshyam was the author of that injury though this witness has stated that Nanak and Ghanshyam were the first one, who inflicted injuries on the person of the deceased. Nanak Ram had 'lathi' and Ghanshyam had an iron rod. This witness has stated that Nanak and Ghanshyam first attacked the deceased Rajendra S/o Mool Chand and thereafter they attacked this witness, but this witness has alleged that the injury on chest was caused by Ghanshyam. This is further evident from the statement of other witnesses produced as eye witnesses by the prosecution. 9. Bhola Shankar (PW-7) has also made specific allegation against the accused. However, Gullu @ Surendra (PW-8), the informant has alleged that Ghanshyam had an iron rod and he inflicted first blow on the head of the deceased Rajendra and thereafter all other accused started beating him. Learned counsel submitted that if the statement of Dr. B.L. Bhatiya is analysed objectively, he while proving the postmortem report has clarified this position by saying that corresponding to injury no.1, there was a diffused swelling around injury no.1. Musculative under the wound (and around that) is soaked and congested. On further removal of scalp layers, there is a long fracture extending from left parietal to frontal region of scalp. Bone margins (fractured) are close to each other. On opening the skull cavity, there is no extradural hemorrhage, membranes are congested, brain matter healthy. This observation in the postmortem report has been clarified by Dr. B.L. Bhatia in the Court that shows that there was no linear fracture on the skull with no external and internal bleeding. The injury on chest i.e. injury no.3, which proved fatal was obviously attributed to the appellant Ghanshyam even by Gullu @ Surendra (PW-8). Surprisingly, PW8 has made any specific allegation against Nanak. Mahendra Kumar (PW-10) has also been produced as eye witness. He has stated that Nanak and Ghanshyam both have iron rods and they caused injury on his head and chest of Rajendra thereby. Even this witness has also specifically attributed the injury on the chest of the accused Ghanshyam. In fact, Mahendra Kumar (PW-10) in cross examination has stated that Ashok @ Bhaya caused injuries on the chest of deceased Rajendra by stone. Even this witness has also specifically attributed the injury on the chest of the accused Ghanshyam. In fact, Mahendra Kumar (PW-10) in cross examination has stated that Ashok @ Bhaya caused injuries on the chest of deceased Rajendra by stone. Learned counsel therefore argued that injury no.1, which actually did prove fatal was caused by accused-appellant Ghanshyam with the intention to commit murder of Rajendra. 10. It is submitted that Dhanna @ Rajendra (PW-9) in cross examination has stated that Munna Lal (PW-4) brought the liquor there and the accused and the deceased consumed the same at his place. This is evident from the postmortem report, which shows that liquor was found in the stomach of the deceased. It is most likely that after consuming the liquor, a quarrel ensued between the accused and the complainant party and in the sudden fight, injury no.3 was actually caused to deceased, which proved fatal. Alternatively, therefore the submission of learned counsel for the accused-appellants is that at the maximum, the offence against accused-appellant would fall under Section 304 IPC Part-II as he cannot be held guilty of committing the offence of culpable homicide amounting to murder. 11. Shri R.S. Raghav, learned Public Prosecutor opposed the appeal and supported the impugned judgment. He has argued that the testimony of Bhola Shankar (PW-7), Gullu @ Surendra (PW-8), Dhanna @ Rajendra (PW-9) and Mahendra Kumar (PW-10) categorically proves the guilt of both the accused-appellants as they were having common intention to commit the murder of deceased. 12. We have given our anxious consideration to the rival submissions and perused the material on record. 13. The written report (Ex.P8) was given to the SHO Police Station Ramganj, District Ajmer on 20.02.1984 by Gullu @ Surendra. Therein, he alleged that his brother Rajendra (injured witness) and deceased Dhanna @ Rajendra were subjected to beating by Ghanshyam, Kala, Bucha @ Prem, Nanag, Jeevan, Ramesh @ Roopchand, Khem Chand @ Khiladi, Bhaiya @ Ashok and Mahendra Koliyan by 'lathis', iron rods and the accused fled away towards Gautam Nagar. In the written report, it is further alleged that informant Bhola, Bihari and Mahendra with great difficulty saved them in seriously injured condition. They were then taken to the hospital. In the written report, it is further alleged that informant Bhola, Bihari and Mahendra with great difficulty saved them in seriously injured condition. They were then taken to the hospital. Initially, written report of Rajendra S/o Mool Chand (Ex.P7) has been prepared according to which he sustained three injuries, last of which was opined to be simple and the injury report of Rajendra S/o Net Ram is Ex.P8, according to which he sustained two lacerated wounds, both simple by blunt weapon. The injury reports have been proved by Dr. V.D. Kabiya (PW-6). Subsequently, however when Rajendra S/o Mool Chand died on 20.02.1984, his postmortem report (Ex.P38), has been prepared. According to the postmortem, on opening the thoracic cavity of the chest, plural was found congested. There was a tear of plura beneath the injury no.3, lung is collapsed, congested and floating in the blood collected in thoracic cavity. On minute inspection, left lung was found torn in relation to injury no.3. Size of the tear was 3-1/2 x 1 x 1 cms. Thoracic cavity contains blood about 2-1/2 litres in amount. The pericardium is congested. Heart showed a contusion in the size of 3-1/2 x 2 cms on front of left ventricle on its junction with right ventricle. There was scanty blood in both sides of heart. Dr. B.L. Bhatiya, who conducted the postmortem has proved the cause of death, according to which the injured died as a result of shock due to hemorrhage in thoracic cavity by an ante-mortem injury to the lung. Obviously, therefore, the death was caused on account of chest injury and the head injury. 14. The version that was given in the first information report did attribute any specific injury to anyone of the accused. However, the injured eye witness Dhanna @ Rajendra (PW-9) in the Court has stated that while Nanak had 'lathi', Ghanshyam had an iron rod. First of all, Nanak and Ghanshyam caused injury to him and deceased and thereafter other accused followed them. This witness has further stated that injury was inflicted on his head and hands and that injury was also inflicted on the head and chest of the deceased Rajendra. Nanak and Ghanshyam first of all caused injuries to deceased Rajendra and to him (this witness). In cross examination, this witness has admitted that they had a drink party at the place of Munna. Nanak and Ghanshyam first of all caused injuries to deceased Rajendra and to him (this witness). In cross examination, this witness has admitted that they had a drink party at the place of Munna. He further stated that all the accused had caused injuries to him, but he did remember as to how many times Nanak inflicted 'lathi' blows on his head and he did also remember as to whether it was only one 'lathi' blow or multiple blows caused on his head. This witness, therefore, does attribute any specific injury to either of the two accused. 15. The informant Gullu @ Surendra (PW-8) has also appeared as eye witness. According to him, Ghanshyam had an iron rod, Jeevan had a knife, Khem Singh had a 'fawrah' and other had 'lathis', iron rods and stones. He alleged that these accused gave beating to his brother Rajendra and Dhanna Singh. He has alleged that first injury was inflicted by Ghanshyam by iron rod on the head of Rajendra and thereafter other accused also subjected him to beating. This witness has made any specific allegation against Nanak. 16. Bhola Shankar (PW-7) has also claimed to be eye witness. Even this witness has made general allegations against the accused saying that while Rajendra and Dhanna Singh were running to save their life, the accused were chasing them. Jeevan had a knife, other accused had 'lathis', iron rods and 'fawrahs'. Beyond this, this witness has not made any specific allegation against accused. 17. Mahendra Kumar (PW-10) is yet another eye witness. He stated that about 10-12 persons were chasing Rajendra @ Dhanna (injured) and Rajendra S/o Mool Chand (deceased). They were coming from the side of Gautam Nagar. Accused present in Court were amongst those person, who were chasing the deceased and the injured. Nanak and Ghanshyam had iron rods and they caused injuries on the head and chest of deceased Rajendra. The other accused had 'lathis'. Jeevan had knife. 18. The testimony of these four eye witnesses is not very clear as to the specific role played by each of the accused, but one of them however has attributed the head injury of the deceased Rajendra S/o Mool Chand to accused-appellant Ghanshyam. However, his eventual death was brought about as a result of injury no.3, which has not been specifically attributed to the sole surviving accused-appellant. However, his eventual death was brought about as a result of injury no.3, which has not been specifically attributed to the sole surviving accused-appellant. But at the same time, the evidence also shows that the accused and the deceased participated in the drink party together and then the incident took place in a sudden quarrel. Presence of alcohol in the stomach of deceased has been found even by Dr. B.L. Bhatiya, who conducted the postmortem. The remark that was given by him is that there was flushing of inner side of stomach and eminent smell of alcohol was present. It can therefore be concluded that the incident had taken place at the spur of moment in a sudden fight where the fatal injury was caused to the deceased in the heat of passion by one of the accused. The guilt of the accused-appellants could be to the extent of culpable homicide not amounting to murder with intention and knowledge and therefore their conviction for offence u/s.302/34 IPC deserves to be converted to Section 304 Part-I read with 34 IPC. Considering the fact that the incident had taken place way back in the year 1984 and appellant Ghanshyam had been facing initial trial and thereafter waiting the result for such a long period and also that at the time of incident, he was 19 years of age and now he is about 53 years of age, for his conviction under Section 304 Part-I read with 34 IPC, he is sentenced to the period of seven years by enhancing the amount of fine to Rs. 25,000, in default of payment of which, he shall further undergo simple imprisonment of one year. The conviction and sentence awarded for offence u/s.323 read with Section 34 IPC is however upheld. The amount of fine so deposited shall be disbursed to the widow of the deceased if she has not re-married or to the father of the deceased. In the result, the appeal qua Nanak is dismissed having abated. However, the appeal qua Ghanshyam is partly allowed. The impugned judgment is modified in the terms afore-discussed. The sentence of Ghanshyam has been suspended by this Court vide order dated 04.01.1991. Thus he remained in jail for almost eleven months. In the result, the appeal qua Nanak is dismissed having abated. However, the appeal qua Ghanshyam is partly allowed. The impugned judgment is modified in the terms afore-discussed. The sentence of Ghanshyam has been suspended by this Court vide order dated 04.01.1991. Thus he remained in jail for almost eleven months. He is therefore directed to surrender immediately before the trial court, which will take him into custody and send him to jail to serve out the remaining sentence of imprisonment. In case, the aforesaid accused-appellant Ghanshyam does not surrender within one month from the date of receipt of copy of this judgment and order, the trial court shall take necessary steps to take him into custody and send him to jail to serve out the remaining sentence of imprisonment.