JUDGMENT : M.G. Giratkar, J. 1. Appellants assailed the judgment of conviction in Sessions Case No. 92/2014 passed by learned Additional Sessions Judge, Chandrapur for the offences punishable under Sections 302 and 324 read with Section 34 of the Indian Penal Code. Both the appellants sentenced to suffer imprisonment for life and to pay a fine of Rs. 25,000/- each, in default to suffer simple imprisonment for one year for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Both the appellants sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- each, in default to suffer simple imprisonment for three months for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code. Both the substantive sentences shall run concurrently. 2. The case of the prosecution against both the appellants in short is as under. (i) Poornima Khobragade and Dipali Malode @ Zoya were the friends of Imran, deceased Naved and appellant no. 1 Sarang Zade. Both the girls were working in Gujrat Saree Center at Chandrapur. They were in search of room. Deceased Naved booked one room of Shrawan Wakde. Imran requested deceased Naved and Hasim to allow both the girls to occupy the said room. Both girls started residing as a tenant in the room of Shrawan Wakde. Naved used to visit the said room. Poornima Khobragade was the friend of deceased Naved. Dipali Malode was girlfriend of appellant no. 1 Sarang. Sarang used to visit said room to meet Dipali. Sarang was having physical relations with Dipali Malode in the said room. Naved was having physical relation with Poornima. Naved came to know about the physical relations of Sarang in the said room and therefore, he was angry upon Sarang. (ii) On 2952014, Hasim and Naved went to the said room. Dipali was talking with Sarang on mobile. Both of them became angry after hearing the talks of Dipali with Sarang. They told Dipali and her friend Poornima to vacate the room immediately. They told both the girls to call Imran who brought them to occupy the said room. Imran came in the room within 15 minutes. Dipali called Sarang. Naved caught hold the collar of Sarang and asked him how he came in the said room. Hasim also gave push to Sarang. They told both the girls to call Imran who brought them to occupy the said room. Imran came in the room within 15 minutes. Dipali called Sarang. Naved caught hold the collar of Sarang and asked him how he came in the said room. Hasim also gave push to Sarang. (iii) Imran separated the quarrel and told them not to quarrel. Sarang told both the girls that they will lodge report against Hasim and Naved. Sarang took both the girls (Poornima and Dipali) on his motorcycle. Imran gave call to Sarang and asked him where he is. Sarang replied that he was near Pathanpura Gate. Imran talked with Sarang to compromise the matter. Imran reached to Pathanpura Gate. Hasim and Naved also reached to Pathanpura Gate to sort out the matter. (iv) It is further case of the prosecution that Naved and Hasim called Mohsin and Juned to Pathanpura Gate. Hasim and Naved reached Pathanpura Gate within 15 minutes. Mohsin and Juned reached there. Imran and Sarang were talking. Naved and Sarang started quarrel. Brother of Sarang, Nihal was there. There was scuffle/quarrel between two groups. Imran, Hasim, Naved, Mohsin and Janed on one side and both the appellants were on other side. Sarang and Nihal assaulted Hasim and Naved by kicks and fist blows. Sarang broke one beer bottle and assaulted the said bottle on the left hand of Juned and on his eye brow. Juned sustained injuries. Nihal Zade took out a knife and gave blow of knife on the chest of Naved. Naved and Juned were taken to the Government Hospital by Mohsin, Imran and Hasim. Medical Officer declared Naved brought dead. (v) Hasim informed father of Naved about the incident. He reached in the Government Hospital. His son Naved was dead. Hasim disclosed incident to him. Thereafter P.W. 1 Sheikh Iqbal, father of deceased lodged the report in City Police Station, Chandrapur. (vi) Dr. Gedam conducted postmortem on the dead body of Naved. He found one injury admeasuring 3 cm x 1½ cm on the chest. Accordingly, he issued postmortem report, Exhibit 120. As per his opinion, cause of death was shock due to injury to vital organs. (vii) Investigating Officer arrested both the accused, prepared spot panchanama and seized broken bottle from the spot of incident. Motorcycles of both the appellants were seized. PSI Vaishya recorded confessional statement of appellant Nihal Zade. Accordingly, he issued postmortem report, Exhibit 120. As per his opinion, cause of death was shock due to injury to vital organs. (vii) Investigating Officer arrested both the accused, prepared spot panchanama and seized broken bottle from the spot of incident. Motorcycles of both the appellants were seized. PSI Vaishya recorded confessional statement of appellant Nihal Zade. As per his confessional statement, knife was recovered. All the seized property were sent to Chemical Analyzer. After complete investigation, charge-sheet was filed before the Judicial Magistrate First Class, Chandrapur. As offence punishable under Section 302 of the Indian Penal Code was exclusively triable by the Court of Sessions, therefore, case was committed to the Court of Sessions. (viii) Trial Court framed charge at Exhibit 25 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code for intentionally killing deceased Naved. Both appellants were charged for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code for voluntary causing injury by sharp weapon/broken beer bottle to Juned. Charge was read over and explained to both the appellants. They pleaded not guilty and claimed to be tried. Defence appears to be of total denial. (ix) The prosecution has examined following witnesses. (1) P.W. 1 Sheikh Iqbal Sheikh I smile (Exhibit 45) (2) P.W. 2 Bhaskar Kashinath Sahare (Exhibit 73) (3) P.W. 3 Sk. Hasim Sk Asgar (Exhibit 102) (4) P.W. 4 Rajkumar Gopal Nandbanshi (Exhibit 106) (5) P.W. 5 Mohsin Khan Ahmedkhan Pathan (Exhibit 114) (6) P.W. 6 Imran Khan Abdul Khan Pathan (Exhibit 116) (7) P.W. 7 Dr. Ravi Uddhaorao Gedam (Exhibit 118) (8) P.W. 8 Mohd. Juned Mohd. Yakub (Exhibit 125) (9) P.W. 9 Dr. Digambar Krishnarao Rathod (Exhibit 130) (10) P.W. 10 Krishnadas Maroti Mathankar (Exhibit 136) (11) P.W. 11 Shri Shankar Keshaorao Niwalkar (Exhibit 144) (12) P.W. 12 Shri Rahul Ramdhan Jadhav (Exhibit 149) (13) P.W. 13 Nanda Ramesh Vaishya (Exhibit 159) (x) Statements of both the appellants were recorded under Section 313 of the Code of Criminal Procedure. They have denied material incriminating evidence. They have filed written statement at Exhibit 167. Both the appellants have stated that there was quarrel on account of girls, namely, Poornima and Dipali. Deceased Naved quarreled with appellant on the room of Shrawan Wakde. Dipali told Sarang that Hasim misbehaved with her. There was quarrel at the said room. They have denied material incriminating evidence. They have filed written statement at Exhibit 167. Both the appellants have stated that there was quarrel on account of girls, namely, Poornima and Dipali. Deceased Naved quarreled with appellant on the room of Shrawan Wakde. Dipali told Sarang that Hasim misbehaved with her. There was quarrel at the said room. Hasim and Naved directed both the girls to vacate the room immediately. Therefore appellant Sarang taken both the girls and told Hasim and Naved that both the girls would lodge report against him. Imran called Sarang on phone and requested him to settle the matter. On his request, Sarang and his brother went to Pathanpura Gate. Hasim, Naved, Imran, Juned and Mohsin came to Pathanpura Gate. They started quarreling with the appellants. Deceased Naved was having knife. During the scuffle, he sustained injury and died. (xi) Defence has examined one witness i.e. D.W. 1 Dipali Shantaram Malode at Exhibit 170. (xii) Learned trial Court heard the prosecution and defence and convicted both the appellants as stated above. Hence, the present appeal. 3. Heard learned counsel Shri R. M. Daga for the appellants. He has submitted that charge against both the appellants for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code was for voluntary causing hurt to the witness Juned. P.W. 8 Mohd. Juned himself has stated in his evidence that there was quarrel between two groups. He tried to rescue the quarrel among both the groups. Imran was holding one bottle of beer and during his attempt in rescuing the quarrel, he sustained injuries on his left hand. Nihal and Naved were snatching knife from each other’s hand. After some time, Naved fell down on the ground. 4. Learned counsel Shri Daga has submitted that the trial Court wrongly convicted both the appellants for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code for causing hurt to Juned (P.W. 8). Evidence of injured himself shows that he sustained injuries during scuffle. When he intervened in the quarrel, he sustained injury of beer bottle which was in the hand of Imran. Therefore, conviction for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code liable to be set aside. 5. Evidence of injured himself shows that he sustained injuries during scuffle. When he intervened in the quarrel, he sustained injury of beer bottle which was in the hand of Imran. Therefore, conviction for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code liable to be set aside. 5. Learned counsel Shri Daga pointed out evidence of material witnesses i.e. P.W. 1 Sheikh Iqbal, P.W. 3 Sk. Hasim, P.W. 5 Mohsin Khan, P.W. 6 Imran Khan and P.W. 8 Mohd. Juned and submitted that all the material witnesses have stated that there was quarrel between two groups. P.W. 3, P.W. 5, P.W. 6 and P.W. 8 and deceased Naved were on one side and both the appellants were on other side. All the material witnesses have not stated anything against appellant no. 1. They have only stated that there was quarrel between appellant no. 1 and deceased Naved. Suddenly, scuffle started between two groups. In the scuffle, Sarang gave blow of broken beer bottle on the hand of Juned. As per evidence of witnesses, appellant no. 2 gave one blow of knife on the chest of Naved. None of the witnesses have stated against appellants stating that appellant no. 1 Sarang beat deceased Naved by any weapon. Therefore, he is wrongly convicted by the trial Court for the offence punishable under Section 302 of the Indian Penal Code. 6. Learned counsel for the appellants has submitted that admittedly, there was sudden quarrel between two groups. Hasim, Imran, deceased Naved, Juned and Mohsin were on one side and appellant nos. 1 and 2 were only on other side. In the scuffle, the appellant no. 2 gave a single blow of knife. Evidence of Dr. Gedam shows that he noticed only one injury on the chest of deceased Naved. Learned counsel has submitted that appellant no. 2 not given more blows. He did not act in a cruel manner. Whatever he had done was due to fear in his mind because they were only two brothers on one side and five persons were on other side. Therefore, there was no intention on the part of appellant no. 2 to cause death of deceased Naved. 2 not given more blows. He did not act in a cruel manner. Whatever he had done was due to fear in his mind because they were only two brothers on one side and five persons were on other side. Therefore, there was no intention on the part of appellant no. 2 to cause death of deceased Naved. He is wrongly convicted for the offence punishable under Section 302 of the Indian Penal Code and at the most, offence punishable under Section 304 Part II of the Indian Penal Code is attracted. At last, learned counsel has submitted that both the appellants be acquitted, alternatively, prayed to consider the act of appellant no. 2 for the offence punishable under Section 304 Part II of the Indian Penal Code. 7. Heard learned Additional Public Prosecutor Mrs. Deshpande for the State/respondent. She has submitted that material eye witnesses have stated that both the appellants beat deceased and other witnesses. Their evidence is well supported by medical evidence. Learned trial Court rightly convicted both the appellants. Hence, there is no merit in the appeal and liable to be dismissed. 8. From the evidence of material witnesses, namely, P.W. 3 Sk. Hasim and P.W. 6 Imran, it is clear that Poornima and Dipali were residing on rent at the house of Shri Wakde. Deceased Naved had love affair with Poornima and appellant no. 1 Sarang was having love affair with Dipali. Deceased Naved was not liking the visit of appellant no. 1 on the room of both the girls. 9. On the day of incident i.e. on 2952014, P.W. 3 Hasim and deceased Naved went to the room of Poornima and Dipali. They saw Dipali talking on mobile with appellant Sarang. They became angry and called Imran. As per the defence witness, namely, Dipali Malode, she along with Poornima were brought to the house of Shri Wakde. Imran taken both the girls on that room. Deceased Naved was having affair with Poornima. P.W. 3 Hasim always tried to have sex with her (Dipali). On the day of incident at about 9.00 p.m., Naved carried Poornima along with him on the terrace. Hasim came near her and wanted to have sex with her. She gave push to Hasim. Thereafter she called appellant Sarang. Hasim, deceased Naved and Poornima called Imran at their room. Sarang reached there prior to arrival of Imran. On the day of incident at about 9.00 p.m., Naved carried Poornima along with him on the terrace. Hasim came near her and wanted to have sex with her. She gave push to Hasim. Thereafter she called appellant Sarang. Hasim, deceased Naved and Poornima called Imran at their room. Sarang reached there prior to arrival of Imran. After arrival of Sarang, Hasim and Naved asked him why he came on the said room and both of them started assault on Sarang. During that time, Imran reached at the room. He stopped the quarrel. Thereafter Hasim told Dipali and Poornima to vacate room immediately. Dipali and Poornmia requested them to allow them to remain in the said room for that night but they were reluctant. 10. Dipali disclosed to appellant Sarang that Hasim tried to outrage her modesty and tried to have sex with her. Therefore, Sarang told both the girls not to live in that room and they have to lodge report in the police station. Appellant Sarang taken both the girls and kept them in the house of maternal aunt at Pathanpura Ward. 11. When Sarang was on the way to Pathanpura, P.W. 6 Imran talked with Sarang and called him to Pathanpura Gate to settle the matter. Evidence of P.W. 3 Sk. Hasim, P.W. 5 Mohsin Khan, P.W. 6 Imran Khan and P.W. 8 Mohd. Juned clearly show that Imran called appellant Sarang at Pathanpura Gate. Appellant Sarang called his brother. It appears that Sarang was knowing about the further episode. P.W. 3, P.W. 5, P.W. 6 and P.W. 8 along with deceased Naved called appellant Sarang so as to teach him lesson. Naved and Hasim proceeded towards Pathanpura Gate. They called P.W. 8 Juned and P.W. 5 Mohsin at Pathanpura Gate. From the cross-examination of these material witnesses, it is clear that there was quarrel between two groups. P.W. 3, P.W. 5, P.W. 6, P.W. 8 and deceased Naved were on one side and both the appellants were on other side. During quarrel, both sides beat each other. 12. Trial Court has framed charge for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code against both the appellants for causing hurt to P.W. 8 Juned. During quarrel, both sides beat each other. 12. Trial Court has framed charge for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code against both the appellants for causing hurt to P.W. 8 Juned. It is pertinent to note that Juned has stated in his evidence that he tried to rescue the quarrel between two groups, at that time, Imran was holding one bottle of beer and during intervening quarrel, he sustained injuries on his left hand. He fell down on the ground and sustained injuries. This particular evidence not taken into consideration by the trial Court. Injured himself not stated that any of the appellants voluntarily caused injury to P.W. 8 Juned by broken beer bottle. Therefore, it is clear that conviction for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code is not sustainable and liable to be quashed and set aside. 13. In respect of offence punishable under Section 302 read with Section 34 of the Indian Penal Code against both the appellants, evidence of P.W. 1, P.W. 3, P.W. 5, P.W. 6, P.W. 8 and medical evidence is very material. P.W. 1 is the father of deceased. He came to know from Hasim about the incident. He straightway went to the General Hospital, Chandrapur and found his son Naved on the stretcher in dead condition. Hasim narrated the incident to him. Hasim told him that quarrel took place amongst Sarang Zade on one side and Naved and Hasim on other side. Scuffle also took place amongst both groups thereafter. When the scuffle was going on amongst both groups, brother of Sarang came on the spot and assaulted Naved on left side of chest. He has stated in his evidence that he saw only one injury on the chest of deceased. 14. From the evidence of P.W. 1, it is clear that P.W. 3 Hasim not disclosed the entire episode to P.W. 1. 15. P.W. 3 Hasim has stated about the incident. As per his evidence, after the quarrel in the room, appellant Sarang taken both the girls. It appears from the cross-examination and evidence of Dipali (D.W. 1), Sarang told them that they will lodge report for outraging modesty of Dipali. P.W. 6 Imran called Sarang at Pathanpura Gate. 15. P.W. 3 Hasim has stated about the incident. As per his evidence, after the quarrel in the room, appellant Sarang taken both the girls. It appears from the cross-examination and evidence of Dipali (D.W. 1), Sarang told them that they will lodge report for outraging modesty of Dipali. P.W. 6 Imran called Sarang at Pathanpura Gate. After reaching both the girls to the house of his maternal aunt, Sarang and his brother Nihal went to Pathanpura Gate. 16. Evidence of Hasim clearly shows that both the appellants were present at Pathanpura Gate. He has not stated anything against appellant Sarang in respect of causing any injury to deceased Naved. Other witnesses also not stated anything against appellant Sarang causing any injury to deceased. They have stated that there was scuffle between two parties. 17. P.W. 3, P.W. 5 and P.W. 6 have stated that appellant Sarang broke the beer bottle and caused injury to P.W. 8. During scuffle, appellant no. 2 Nihal gave blow of knife to deceased Naved. Evidence of these material witnesses clearly show that appellant no. 1 not caused any injury to deceased Naved, therefore, conviction against him for the offence punishable under Section 302 of the Indian Penal Code is liable to be quashed and set aside. 18. There is no dispute about the evidence of material witnesses that there was quarrel between two groups. It is pertinent to note that appellant Sarang while taking both the girls told Hasim and Naved that they will lodge report in the police station for outraging modesty of Dipali. While Sarang was on the way, he was called by P.W. 6 Imran at Pathanpura Gate to settle the matter. Sarang and his brother Nihal went to Pathanpura Gate. Thereafter Hasim and Naved went to Pathanpura Gate. Hasim called Mohsin and Juned to the spot of incident. It appears from the evidence that there was scuffle between two groups. 19. Hasim, Naved, Imran, Juned and Mohsin were on one side and appellant nos. 1 and 2 were on other side. In the scuffle, both groups beat each other. Appellant no. 2 Nihal during the scuffle took out knife and gave blow on the chest of deceased Naved. Situation on the spot show that five persons on one side and only two brothers were on other side. Therefore, appellant no. 1 and 2 were on other side. In the scuffle, both groups beat each other. Appellant no. 2 Nihal during the scuffle took out knife and gave blow on the chest of deceased Naved. Situation on the spot show that five persons on one side and only two brothers were on other side. Therefore, appellant no. 2 to save himself from the five persons take out the knife and gave single blow. Medical Officer also noted only one injury. Therefore, it is clear that whatever incident took place was in sudden fight between the two groups. If Nihal would not have inflicted any injury to deceased Naved then all five persons (P.Ws. and deceased) might have caused grievous injuries to both the brothers (appellants). Moreover, appellant no. 2 gave single blow by knife. Hence, it cannot be said that he had any intention to kill deceased Naved. Had it been so, appellant no. 2 would have inflicted more injuries to deceased. 20. Nothing is brought on record in the evidence of any of the witnesses to show that there was any enmity between appellant no. 2 and other five persons. On the other hand, it appears from their evidence that they were not knowing appellant no. 2 till the time of incident. It appears from the situation stated by the witnesses that all five persons were on the spot. Appellant no. 1 Sarang might have thought about something will happen, therefore, he called his brother for help. Therefore, it is clear that appellant Nihal had no intention to kill Naved who was not known to him prior to the incident. Hence, the act of appellant no. 2 Nihal comes under Section 304 Part II of the Indian Penal Code. Hence we pass the following order. ORDER (i) The appeal is partly allowed. (ii) The impugned judgment is hereby quashed and set aside. (iii) Appellant no. 1 Sarang s/o Kailash Zade is hereby acquitted of the offences punishable under Sections 302 and 324 read with Section 34 of the Indian Penal Code. (iv) Appellant no. 2 Nihal s/o Kailash Zade is acquitted of the offence punishable under Section 324 read with Section 34 of the Indian Penal Code. (v) Appellant no. (iii) Appellant no. 1 Sarang s/o Kailash Zade is hereby acquitted of the offences punishable under Sections 302 and 324 read with Section 34 of the Indian Penal Code. (iv) Appellant no. 2 Nihal s/o Kailash Zade is acquitted of the offence punishable under Section 324 read with Section 34 of the Indian Penal Code. (v) Appellant no. 2 Nihal s/o Kailash Zade is acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, instead, he is convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years. (vi) Appellant no. 1 Sarang s/o Kailash Zade is on bail. His bail bond stands cancelled. (vii) R & P be sent back to the trial Court. (viii) Muddemal property, if any, be destroyed after expiry of appeal period.