JUDGMENT : (Delivered by Hon'ble Shashi Kant Gupta, J.) 1. This appeal has been preferred by the accused-appellants against the judgment and order dated 07.02.1985 passed by the Sessions Judge, Badaun in Sessions Trial No. 204 of 1984, under Sections 302/34, 325/34 and 323/34 IPC, Police Station Qadar Chowk, District Badaun whereby all the accused appellants have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Sections 302/34 IPC, sentence of two years Rigorous Imprisonment for the offence punishable under Section 325/34 IPC and a sentence of Six months Rigorous Imprisonment for the offence punishable under Section 323/34 IPC. 2. The present appeal was filed in the year 1985 against the impugned judgment dated 07.02.1985 and it has come up for hearing before us after lapse of almost 33 years. 3. At the outset, it is pertinent to mention here that during the pendency of this appeal, the accused-appellant no. 3 namely Laxman has died. Accordingly, vide order dated 21.09.2017, this Court has abated the appeal in respect of the accused-appellant no. 3- Laxman. 4. Now, we are proceeding to consider the present appeal in respect of the surviving appellants i.e. Appellant Nos. 1 & 2 namely Virendra & Gajraj. 5. The factual scenario as described by the prosecution is essentially as follows: 6. The accused Gajraj Singh and Laxman Singh are real brothers while accused Virendra Singh is the son of Laxman. Accused Laxman Singh and Gajraj Singh are the real uncles of the deceased Shyam Pal Singh. The complainant Ramvir Singh is the real brother of the deceased Shyam Pal Singh and Jamadar Singh is the father of the complainant as well as the deceased. Smt. Jamna is the wife of Jamadar Singh and mother of the deceased. Thus, the accused (as well as), the deceased and the injured belong to the same family. 7. The prosecution case is that about three months prior to the present occurrence, deceased Shyam Lal had a quarrel with the accused Laxman Singh. Subsequent thereto on the date of the alleged occurrence Sujan Singh son of the deceased Shyam Pal Singh, aged about 8 years had plucked Bhindis (Lady-fingers) from the accused Laxman Singh's field. On this, the accused Virendra Singh hung Sujan Singh into the well as a punishment for plucking Bhindis, whereupon, Sujan Singh wept and cried. Subsequent thereto on the date of the alleged occurrence Sujan Singh son of the deceased Shyam Pal Singh, aged about 8 years had plucked Bhindis (Lady-fingers) from the accused Laxman Singh's field. On this, the accused Virendra Singh hung Sujan Singh into the well as a punishment for plucking Bhindis, whereupon, Sujan Singh wept and cried. On hearing the cries of Sujan Singh, the complainant Ram Pal Singh, who was present at that time at his Khalihan (a place where grains are kept) rushed to the well. On seeing him, Virendra Singh let him (Sujan Singh) off. Thereupon Ram Pal Singh along with Sujan Singh returned home and narrated the entire incident to his brother Shyam Lal Singh (deceased) and his father Jamadar and also told them that Virendra Singh was abusing his entire family. Thereafter, at about 3.45 PM the deceased, the informant and their father Jamadar and Roop Lal Singh went to the accused persons (towards the well) to complain about the above incident, which led to exchange of hot words between them, whereafter when the deceased party was returning home, all the three accused followed them. They again entered into a verbal altercation, as a result, the accused started assaulting the deceased with Lathis. The complainant and his father Jamadar tried to save the deceased but they were also assaulted. Smt. Jamna also arrived at the scene of the occurrence and when she tried to intervene she was also assaulted. The accused thereafter ran away from the scene thinking that the deceased was dead. The deceased succumbed to his injuries immediately after the occurrence. 8. A report of the occurrence Ext. Ka 2 was lodged by Ram Pal Singh, brother of the deceased at 00.50 hours at the police station Qadar Chowk, which is at a distance of 12 KM from the scene of occurrence, whereupon entry regarding registeration of crime was made in G.D. (Vide entry Ext. Ka 5). The investigation was taken over by the Station Officer P.S. Qadar Chowk Kali Shankar P.W. 6, who after recording the statement of the complainant proceeded to the spot in a jeep. As there was no proper arrangement for lighting he stayed in the village in the night and early morning at 5.30 AM he prepared the inquest report Ext. The investigation was taken over by the Station Officer P.S. Qadar Chowk Kali Shankar P.W. 6, who after recording the statement of the complainant proceeded to the spot in a jeep. As there was no proper arrangement for lighting he stayed in the village in the night and early morning at 5.30 AM he prepared the inquest report Ext. Ka 6 and other necessary documents Exts Ka 7 to Ext.Ka 11 and sent the dead body for post-mortem examination. Thereafter, he recorded the statements of the eye witnesses and others and then inspected the site and a prepared site-plan Ext. Ka 12 at the instance of Jamadar and Smt. Jamna. After recording their statements said injured were sent to District Hospital, Badaun for medical examination. Thereafter he took the sample of simple and blood stained earth from the spot vide memo Ext. Ka 13. 9. The post mortem examination on the dead body of the deceased was conducted by Dr. R.M.L. Srivastava at 5.00 PM on 21.05.1984. The following ante-mortem injuries were found on the dead body of the deceased: (I) Contusion 4 cm x 3 cm on the posterior aspect of lower 1/3rd of right upper arm. On dissection supracondyral fracture was present with collection of blood underneath. (ii) Contusion 4 cm x 5 cm on the outer aspect of upper ½ of right upper arm. (iii) Lacerated wound 4 cm x 2 cm x bone deep on right side of face 1 cm lateral at right angle of mouth. (iv) Lacerated wound 2 cm x .75 cm x skin deep on right side of chin 1 cm below lower lip. (v) Lacerated wound 3 cm x 1 cm x skin deep 2 cm lateral to injury no. 4. (vi) Contusion 7 cm x 3 cm on right side of face just below right ear. On dissection 4, 5, 6 teeth of lower jaw (right side) present broken into pieces and muscle, vains, arteries ruptured. (vii) Multiple lacerated wound varying size 1 cm x 1.5 cm x 1 cm in an area of 4 cm x 6 cm in mid of skull. On dissection depressed fracture was found in occiput region, also subdural hematoma was present on right side of skull. Lacerated brain was present. 10. All the three injured were medically examined by Dr. P.K. Shukla. On dissection depressed fracture was found in occiput region, also subdural hematoma was present on right side of skull. Lacerated brain was present. 10. All the three injured were medically examined by Dr. P.K. Shukla. The complainant Ram Pal Singh was medically examined at 2.05 PM and he was found to have received the following injuries: (I) A contusion 8 cm x 8 cm over dorsum of left hand. Advised X-ray of left hand. A.P. & Lat. views for further elucidation of injury. (ii) An abrasion 2 cm x 1 cm over fore-arm on left side measuring 10 cms below wrist joint. (iii) A lacerated wound 4 cm x 0.5 cm x aponeurosis deep over scalp on left side 10 cm away from the ear. On X-ray of the left hand comminuted fracture in the distal part of second metacarpal bone was detected, vide X-Ray report Ext. Ka 3. 11. P.W. 3- Jamadar was examined at 2.15 PM and the Doctor noted the following injures: (I) A lacerated wound 3 x 0.5 cm over little finger of right hand. (ii) A contusion 3 x 2.5 cm over fore head on right side 1 cm above eye brow. (iii) Complaint of pain in left shoulder. No obvious injury. (iv) Complaint of pain in left right shoulder. No obvious injury. 12. Smt. Jamna was medically examined at 2.20 PM and the Doctor found the the following injuries: (I) A contusion with abrasion 20 x 8 cm over right fore arm measuring 10 cm below elbow. There was suspected fracture of underlying bone. Advised X- Ray of right fore arm A.P. & Lateral views for further elucidation of injury. On X-Ray of right fore arm comminuted fracture in the lower end of ulna bone was detected vide X-Ray report Ext. Ka 4. 13. After the receipt of the post mortem report and the injury reports, the accused were challaned through charge sheet dated 31.05.1984 Ext. Ka 14. 14. The accused pleaded not guilty to the charges framed against them. The accused Laxman in his statement recorded under Section 313 Cr.P.C. stated that he had a share in the house occupied by Jamadar. He went to that house for cleaning it in order to stock Bhusa (husk of green) therein. Thereupon his wife Smt. Jamna Dei quarrelled with him, as a result, Jamadar and Smt. Jamna Dei received injuries. The accused Laxman in his statement recorded under Section 313 Cr.P.C. stated that he had a share in the house occupied by Jamadar. He went to that house for cleaning it in order to stock Bhusa (husk of green) therein. Thereupon his wife Smt. Jamna Dei quarrelled with him, as a result, Jamadar and Smt. Jamna Dei received injuries. After that incident he returned to his Khalihan. In the night at about 10 or 11 PM when Shyam Pal Singh deceased returned home he came to know of the above incident, he first went to his (this accused) house and when he was not available there, he went to Khalihan and there the deceased attacked him with Lathi. He also wielded Lathi in self defence but inspite of that the deceased received injuries. He further stated that this occurrence was witnessed by Gokran and Nathoo. 15. This accused Laxman further stated that Jamadar had demanded half share in the land of his father Ram Chandra because Gajraj had no issue. Gajraj and Ram Chandra used to live with him, owing to which, Jamadar picked up a quarrel with him when he went to his house for keeping Bhusa. 16. Accused Virendra Singh and Gajraj stated that they were not present at the time of the occurrence and they have been falsely implicated in order to exert pressure on them so that they may forgo their share in the property. 17. The prosecution in support of its case examined seven witnesses. Out of them Ram Pal Singh P.W. 2 and Jamadar P.W. 3 are the eye witnesses of the case. They were also allegedly injured in this very incident. Rest are formal witnesses. Dr. R.M.L. Srivastava P.W. 1 conducted the post mortem examination and proved the post mortem report Ext. Ka 1. Dr. R.B. Abhi P.W. 4 proved the X-Ray plates and X-Ray Exts. Ka 3 and Ka4 and X-Ray report Ext. 1 and Ext Ka 2. Constable Ramvir Singh P.W. 5 is the head moharrir of the police station. He proved the chick report Ext. Ka 2 and copy of G.D. Entry Ext. Ka 5. Dr. P.K. Shukla P.W. 7 proved the injury reports of the injured Exts. Ka 15 to Ka 18, Kali Shankar Tiwari-P.W. 6 is the investigating officer, who proved the documents mentioned above. 18. Above is the entire evidence led on behalf of the prosecution. He proved the chick report Ext. Ka 2 and copy of G.D. Entry Ext. Ka 5. Dr. P.K. Shukla P.W. 7 proved the injury reports of the injured Exts. Ka 15 to Ka 18, Kali Shankar Tiwari-P.W. 6 is the investigating officer, who proved the documents mentioned above. 18. Above is the entire evidence led on behalf of the prosecution. The accused did not produce any defence witnesses. 19. Learned counsel for the appellants has submitted that the appellants are innocent and have been falsely implicated. It was further submitted that in fact the accused Virendra and Gajraj were not present at the time of occurrence and they have been falsely implicated in order to exert pressure on them so that they may forgo their share in the property. It has been further submitted that the appellants have been assigned the role of causing injuries with blunt object like Lathi, which can not be said to be a lethal weapon. It has been further submitted that the victims were injured at the hands of accused Laxman at different place and time and in fact only the accused Laxman had assaulted the deceased, informant and his parents. Alternatively, it has been further submitted that in view of the evidence on record led by the prosecution the case of appellants would fall at the most under Section 304 Part II of IPC and not under Sections 302/149 IPC. 20. It has been further submitted that there was no premeditation or intention to commit any murder or cause any serious injuries to the alleged victims. He further submitted that the only role assigned to appellants is of causing injuries by Lathi. It has been further submitted that the site plan clearly shows that the houses of the appellants and the victims are in the same vicinity more or less adjoining to each other and further submitted that the incident had not occurred at the house of the informant. The house of the informant and the appellants were almost at equal distance from the place of occurrence. 21. Per contra, learned AGA has supported the impugned judgment and has submitted that the Court below after meticulously scanning the evidence available on record has rightly convicted and sentenced the accused appellants. The house of the informant and the appellants were almost at equal distance from the place of occurrence. 21. Per contra, learned AGA has supported the impugned judgment and has submitted that the Court below after meticulously scanning the evidence available on record has rightly convicted and sentenced the accused appellants. It was further submitted that the accused appellants have not disputed the injuries sustained by the victims and more over none of the appellants have alleged that they were also injured at the hands of the informant side. It was further submitted that the accused appellants had the intention of causing death of the deceased and grievous injuries to the other victims. It was further submitted that the place of occurrence was the place where the dead body of the deceased was found. He further submitted that the post-mortem report as well as the injury reports completely corroborates the ocular evidence. 22. Heard Mr. Harish Chandra Tiwari, Mr. Bharat Singh, learned counsel for the appellant nos. 1 and 2 respectively, Mr. Rajiv Sharma and Mr. Ajeet Ray, learned AGA appearing on behalf of the State. 23. According to the prosecution case, the accused assaulted the deceased with their lathis and when the informant along with his father Jamadar and his mother Smt. Jamna tried to intervene and rescue the deceased they were also assaulted. The motive alleged by the prosecution is that prior to the present occurrence there had been a quarrel between the deceased and accused Laxman over the construction of a cattle trough near the door of the house which had caused ill-will between the two. The immediate cause of this assault is said to be that on the day of occurrence Sujan Singh's 8 years old son of the deceased had plucked some Bhindi (Lady-fingers) from the field of the accused Laxman (now deceased) who was caught hold of by the accused Virendra Singh son of Laxman accused and the latter hung him into the well in order to punish him for the alleged theft, whereupon the boy raised cries which attracted the complainant who was present nearby in his Khalihan, whereupon he rushed to the spot. On seeing him, the accused Virendra Singh let him (Sujan Singh) go. Thereafter, the complainant on returning home narrated the entire incident to his brother the deceased and his father Jamadar. On seeing him, the accused Virendra Singh let him (Sujan Singh) go. Thereafter, the complainant on returning home narrated the entire incident to his brother the deceased and his father Jamadar. Whereupon all the three persons went towards the well wherein hot exchange of words took place between them. When the informant side was returning home, the accused persons followed them and thereafter they again entered into a verbal altercation, as a result, the accused started assaulting the deceased with Lathis and when the informant and his parents came to his rescue, they were also assaulted. Consequently, the deceased died at the spot and the other two including the mother of the informant received injuries. 24. Learned counsel for the appellants in fact has not disputed the injuries received by the deceased and other three injured. However, defence version is that all of them did not receive the injuries at the same place and time. It has also been submitted by the learned counsel for the appellants that the appellants were not present at the time of occurrence or at the place of incident. In fact the deceased received injuries at Khalihan of the accused Laxman (now deceased). 25. According to the defence, Laxman had a share in the house occupied by Jamadar. He went to that house for cleaning it in order to stock fodder (Bhusa) therein. Thereupon his wife Smt. Jamna Dei quarrelled with him and in that incident Jamadar and Smt. Jamna Dei received injuries. After that incident he returned to his Khalihan. In the night at about 10 or 11 PM Shyam Pal Singh deceased returned home, he came to know of the above incident, he first went to his (Laxman) house and when he was not available there, he went to Khalyan and there the deceased attacked him with Lathi. He also wielded Lathi in self defence and so the deceased received injuries. He further stated that this occurrence was witnessed by Gokran and Nathoo. Thus, according the defence version, it was only the accused Laxman, who had assaulted the deceased and other injured. Prosecution has tried to bifurcate the incident in two parts alleging to have occurred at two different places. 26. He further stated that this occurrence was witnessed by Gokran and Nathoo. Thus, according the defence version, it was only the accused Laxman, who had assaulted the deceased and other injured. Prosecution has tried to bifurcate the incident in two parts alleging to have occurred at two different places. 26. We have carefully perused the entire evidence available on record and do not find any substance in the arguments advanced by the learned counsel for the appellants that they have not caused the death of the deceased. Perusal of the record shows that there was no undue delay in lodging the first information report. P.W. 1- Dr. R.M.L. Srivastava, who had appeared in the witness Box has duly proved the injuries caused to the victims as well as post mortem report of the deceased. Learned counsel for the appellants has not been able to explain the injuries received by the deceased as well as other injured. There is nothing on record to show that injuries of the complainant or other victims were manufactured or fabricated. The complainant and her mother have also suffered fracture injuries and their injuries have not been explained by the defence side. It has been admitted by the appellants that the injuries suffered by the victims were the outcome of the assault allegedly committed by the accused Laxman, as such, they have tried to save their skin by putting up a defence that they were not present on the spot. However, there is an overwhelming evidence on record to show their participation in the commission of the offence. Duration of the injuries mentioned in the injury report as well as the evidence adduced by the concerned Doctor (P.W. 1) also fully supports the prosecution story that the injuries were caused during the incident alleged by the prosecution. The defence has miserably failed to explain the injuries sustained by the victims. 27. Learned counsel for the appellants has alternatively argued that case of the appellants would not travel beyond section 304 Part II IPC and has brought to our notice the evidence particularly adduced by the witnesses of fact as well as the Doctor (P.W. 1). In support of his contention, he has placed reliance upon the decision in the case of Ankush Shivaji Gaikward Vs. State of Maharashtra, (2013) 6 Supreme Court Cases 770 & K. Ravi Kumar Vs. In support of his contention, he has placed reliance upon the decision in the case of Ankush Shivaji Gaikward Vs. State of Maharashtra, (2013) 6 Supreme Court Cases 770 & K. Ravi Kumar Vs. State of Karnataka 2014 (13) Judgment Today 294. He further submitted that the role assigned to the appellants is of causing injuries only by Lathi and none of the appellant including the accused Laxman has been attribulted the role of carrying any lethal weapon. 28. The arguments advanced by the leaned counsel for the appellants with regard to the applicability of Section 304-II IPC requires serious consideration in the light of the evidence adduced in the case. 29. According to the prosecution, the immediate cause of assault is said to be that on the day of occurrence Sujan Singh, 8 years old son of the deceased had plucked some Lady-fingers (Bhindi) from the field of the accused Laxman. He was caught hold by the accused Virendra Singh, who latter hung him in to the "Well" in order to punish him for the alleged theft. As such, the boy raised cries which attracted the complainant, who was nearby in his Khalihan and on seeing him the Boy was let off by the accused Virendra Singh. Thereafter, the complainant on returning home narrated the entire incident to his brother, the deceased and his father Jamadar. Whereupon all the three persons went to the accused person at Khalihan where heated arguments were being exchanged between them and whereafter when the deceased party was returning home, the accused persons again entered into a verbal altercation which had continued up to the place where assault took place and consequently the accused persons assaulted the deceased. When other injured witnesses came to his rescue, they were also assaulted with Lathi and in the process, the deceased died at the spot. In this connection, it would be fruitful to quote the relevant portion of the testimony of the witnesses of fact. When other injured witnesses came to his rescue, they were also assaulted with Lathi and in the process, the deceased died at the spot. In this connection, it would be fruitful to quote the relevant portion of the testimony of the witnesses of fact. P.W. 2- Ram Pal Singh esjs ?kj ds njokts ls xtjkt eqyfte us ?kj dk njoktk 10&12 dne gSA tc lqtku dks dqa, esa yVdk;k Fkk rks rhuksa eqyfteku ekStwn FksA eSaus fjiksVZ esa ;g ckr fy[kkbZ Fkh fd ohjsUnz ds vykok nksuksa eqfYteku lqtku dks dqa, esa yVdkrs le; ekStwn Fks vxj fjiksVZ esa ugha fy[kh gS rks otg ugha crk ldrkA esjs dqa, ij igqaprs gh lqtku flag dks NksM+ fn;kA ml le; esjh eqfYteku ls dsoy bruh ckr gqbZ Fkh fd eqfYteku us eq>s ;g crk;k Fkk fd lqtku us mldh fHkUMh rksMh Fkh blfy, dqa, esa yVdk;k Fkk vkSj dksbZ dgk lquh xkyh xykSt ugha gqbZ ge lqtku dks ysdj pys vk;sA eSa eqyfteku ds dqa, ij NksM vk;k FkkA ml le; jgV ugha pyk jgk FkkA eq>s /;ku ugha gS fd eSusa :iyk dks ?kVuk ds p'enhn xokgh eSa fy[kk;k gS ;k ughaA muds dksbZ pksV ugha vkbZA ekjihV ds le; ekSds ls og Mj dj ?kj Hkkx vk;k FkkA dq,a ij eSa] esjs cki nksuksa HkkbZ ';ke iky] o :iyky eqyfteku dks mykguk nsus x;sA ogka ij dgk lquh gqbZ FkhA xkyh xykSp xekZ xehZ gksuk tks eSaus mij crk;k gS mlls esjk eryc dgk lquh ls gSA lqtku ds dq, esa yVdkuk ge yksxksa dks cqjk yxk FkkA dq,a ij eqyfteku us ekjihV djus dh dksf'k'k ugha FkhA dgk lquh ds ckn gesa dksbZ vans'kk ugha Fkk fd eqyfteku ges ekjus dh lkspsxsaA tc ge ykSV jgs Fks rc eqyfteku ykBh ysdj vk;s vkSj ';ke iky dks lEcksf/kr djds dgk fd ;g cgqr curk gS blss vkt ns[ksxsa blls fucVsxsaA ;g ckr eSusa njksxk th dks ugha crkbZ u fjiksVZ esa fy[kkbZA ;g ckr eSusa vius c;ku esa crkbZ Fkh xokg dks mldk c;ku is esjs ekrk] firk dks Hkh ekjus yxs vkSj ';keiky dks Hkh ekjrs jgsA ;g dguk xyr gS fd esjs o esjs eka cki ds pksVs ,d lkFk ugha vkbZA ;g eSa ugha crk ldrk fd fdlh ykBh fdlds yxhA usrjke o uRFkw us eqyfteku dks ugha idM+k vkSj u chp cpko fd;k D;ksafd ;g mUgha ds vkneh gSA P.W.3- Jamadar- tgka eqyfteku gesa feys og txg dqa, ls 25&30 dne gSA eqyfteku ij ykfB;ka FkhA ge [kkyh gkFk FksA tgka eqyfteku feys Fks vkSj gekjh dgk lquh Fkh ml txg ls ekjihV dh txg 20 dne gksxhA tgka eqyfteku feys Fks ogka ls ekjihV dh txg rd dgk lquh gksrh pyh vkbZ FkhA ;g dguk xyr gS fd mygkuk nsdj ge yksx ?kj vk x;s gksA fQj eqyfteku ?kj ij vk;s gks vkSj gekjs ?kj ds njokts ij dgk lquh gqbZ gks vkSj ekjihV gqbZ gksA ekjihV dh txg esjs ?kj ds njokts ls 20 dne gSA eSaus njksxk th dks ;g c;ku fn;k ftl xekZ xehZ ds ckn ge yksx ?kj dks okfil pys rks y{eu xtjkt flag o ohjsUnz flag ykfB;ka fy, gq;s dq,s ij ls njokts ij vk;s vkSj dkQh xekZ xehZ gks xbZ rHkh eqyfteku us ';keiky esjs yMds dks ykfB;ksa ls ekjuk 'kq: dj fn;k FkkA eSusa njksxk th ds ;g ckr crkbZ Fkh fd ftl txg eqyfteku feys Fks tgka ls ekjihV dh txg rd dgk lquh o xekZ xehZ gksrh pyh vkbZ FkhA eSa ugha dg ldrk fd njksxkth us esjs c;ku esa ;g ckr D;ksa ugha fy[khA ekjihV dh txg ls xtjkt ds njoktk 20&25&30 dne nwj gSA ekjihV dh txg ls njoktk if'pe dks gSA eqjk edku xtjkt ds edku ls 4&5 dne mRrj esa gSA esjk njoktk nksuksa edkuksa dss chp dh txg esa [kqyrk gSA eSusa njksxkth ds dqa, ds ikl tgka ij eqyfteku gesa feys Fks vkSj geus mUgsa mygkuk fn;k Fkk njksxkth dks fn[kk nh FkhA ekjihV dh txg Hkh fn[kk nh FkhA og txg gekjs njokts ds lkeus gS tgka gekjs tkuoj ca/krs gS [kwaVs eqyfteku us ifgys ';keiky ij ykfB;ka cjlkbZ ml le; eSa o jkeiky o :iyky ekStwn Fks tSls gh ge cpkus dks cMs ge ij Hkh eqyfteku us ykfB;ka NksM+h :iyky ihNs ls gVdj Hkkx x;kA esjs ';keiky o jkeiky ds pksVs mlh txg vkbZA esjh ?kjokyh cpkus vkbZ mls Hkh ekjk og ge yksxksa ds ckn esa fiVhA eSa ;g ugha dg ldrk fd fdlus eq>s ekjk vkSj ftldh ykBh ';keiky ds Hkkxs vkSj fdlus jkeiky dks ekjkA ';keiky [kM+s ij fiVs FksA ';keiky ds fxj tkus ij eqyfteku us mls ekjkA eq>s ;g ugha ekywe fd fxjs esa ';keiky ds fdruh ykBh yxh eq> ij ykfB;k fxj jgh eSa D;k ns[krkA ekjihV vk/kk ?kaVk gqbZ FkhA eSaus ';keiky dks [kMs ij fxjrs ns[kk ykfB;ka [kkdj tc og fxj x;k fxjus ds ckn esa mlds ykBh yxh ;k ugha eq>s ugha ekyweA 'kq: esa ';keiky ds nk;s cka;s vkSj lkeus ls ?ksj dj ekjuk 'kq: fd;k FkkA 30. Thus, the perusal of the aforesaid testimonies of P.W. 2 and P.W. 3 clearly describe the genesis, motive and the manner in which the incident had occurred. It has been admitted by the prosecution witnesses that the deceased along with his brother and father had gone towards the Khalihan to make a complaint to the accused appellants for ill-treating the child Sujan. It has also been admitted by the prosecution that at Khalihan both the parties exchanged heated arguments. Thus, it is not the case of the prosecution that initially the accused persons had approached the victims or had gone to the house of the victims to cause them injury or to abuse them. In fact, the victims, who were four in number, had gone to Khalihan to make complaint to the accused persons. According to prosecution story, at Khalyan only exchange of hot words took place between the parties and neither of the accused persons had assaulted any of the victims. According to the P.W. 3- Jamadar, exchange of hot words which had ensued at the "Well" continued up to the place where the actual assault took place. 31. Perusal of the record further shows that neither of the appellants had premeditated or pre-planned to assault the victims. It appears that the assault was made by the accused appellants in the heat of moment after picking up their Lathis from some where. 32. Perusal of the site plan as well as evidence available on record shows that the house of victims and the accused appellants were quite nearby to each other. The site plan also depicts that the occurrence had not taken place at the house of the victims but at the place marked "X" which appears to be almost at an equal distance from the house of both the parties. Thus, it can not be said that the accused persons came all the way to their house with premeditation and pre-planning to commit the alleged offence. 33. P.W. 3- Jamadar in his testimony has clearly inter alia stated that the incident had occurred around 20 steps away from his house. The place where the actual occurrence took place was around 20 paces away from the place where the victims had initially met the accused and further stated that the occurrence did not take place at the door of their houses. The place where the actual occurrence took place was around 20 paces away from the place where the victims had initially met the accused and further stated that the occurrence did not take place at the door of their houses. He categorically stated that the place of occurrence was about 20 paces away from their residence. For ready reference, relevant portion of the testimony of P.W. 3-Jamadar is quoted herein below:- tgka eqyfteku gesa feys og txg dqa, ls 25&30 dne gSA eqyfteku ij ykfB;ka FkhA ge [kkyh gkFk FksA tgka eqyfteku feys Fks vkSj gekjh dgk lquh Fkh ml txg ls ekjihV dh txg 20 dne gksxhA tgka eqyfteku feys Fks ogka ls ekjihV dh txg rd dgk lquh gksrh pyh vkbZ FkhA ;g dguk xyr gS fd mygkuk nsdj ge yksx ?kj vk x;s gksA fQj eqyfteku ?kj ij vk;s gks vkSj gekjs ?kj ds njokts ij dgk lquh gqbZ gks vkSj ekjihV gqbZ gksA ekjihV dh txg esjs ?kj ds njokts ls 20 dne gSA eSaus njksxk th dks ;g c;ku ftl xekZ xehZ ds ckn ge yksx ?kj dks okfil pys rks y{eu xtjkt flag o ohjsUnz flag ykfB;ka fy, gq;s dq,s ij ls njokts ij vk;s vkSj dkQh xekZ xehZ gks xbZ rHkh eqyfteku us ';keiky esjs yMds dks ykfB;ksa ls ekjuk 'kq: dj fn;k FkkA 34. P.W. 1- Dr. R.M.L. Srivastava has stated that the deceased received seven injures. For ready reference the relevant portion of the testimony of the P.W. 1- Dr. R.M.L. Srivastava in this regard is quoted herein below: e`rd dh pksVsa 3 yxk;r 6 e`rd ds [kMs [kMs fxjus ij vk ldrh gSaA pksV la07 esa dbZ ysljsVsM oqaM gSA tks NksVs NksVs lkbt ds gS mudk vkSlr lkbt 1 ls-eh- 1-5 ls-eh- gS eSaus ;g uksV ugha fd;k gS fd ;g pksVsa ,d nwljs ij vksoj ySi Fkh ;g fy[kuk eSus t:jh ugha le>kA^^ 35. Thus even according to the Doctor injury nos. 1 to 6 could have been caused by falling on the ground. Perusal of the post mortem report further shows that inter alia that there was only one grievous injury on the head of the deceased, which shows that the Lathi blow was not repeated on the head of the deceased. Specific role has not been assigned to any of the accused of causing any particular injury to the victims. 36. Perusal of the post mortem report further shows that inter alia that there was only one grievous injury on the head of the deceased, which shows that the Lathi blow was not repeated on the head of the deceased. Specific role has not been assigned to any of the accused of causing any particular injury to the victims. 36. It is borne out from the record that the quarrel between the parties had taken place near the Well, followed by mutual abuses and it escalated into a serious incident. At the very inception, none of the accused was carrying any Lathi in their hands. There is no evidence of pre-planning. It is only when the quarrel escalated and developed into a fight and in the heat of the moment, the appellants picked up their Lathis and inflicted Lathi blows at random causing the death of the deceased. Thus crime was committed without premeditation in the heat of passion upon a sudden quarrel. It is notable that there was no sufficient lapse of time between the quarrel and the resultant death of the deceased which indicates that the incident had occurred in the heat of passion after the quarrel and there was no time for the passion to cool down. The assaults were made at random. It is not the case of prosecution that the appellants had come prepared armed with weapons for attacking the informant side. The weapons were picked up by the appellants from the spot after the quarrel ensued between the parties. 37. Perusal of the record further shows that the injury inflicted by Lathi was not repeated by the appellants on the vital parts and there is no conclusive evidence that the accused continued assaulting the deceased after he fell down. Thus, it can not be said that they had taken undue advantage or acted in a cruel or unusual manner or had any intention of causing death of such deceased. The whole episode had culminated into a serious incident due to heat of passion on a sudden quarrel. Thus a pre-meditation mind to cause death was absent in the present case. 38. Facts and circumstances of the present case clearly shows that there was no intention of the appellants to cause death of the deceased. However, the appellants must be attributed with the knowledge that by inflicting such injuries they were likely to cause death. Thus a pre-meditation mind to cause death was absent in the present case. 38. Facts and circumstances of the present case clearly shows that there was no intention of the appellants to cause death of the deceased. However, the appellants must be attributed with the knowledge that by inflicting such injuries they were likely to cause death. In that view of the matter the offence committed by the appellants would fall withing the purview of Section 304 Part II IPC and not under Section 302 IPC read with Section 34 IPC. 39. We are also fortified in our view by the decision of the apex court in the case of Ankush Shivaji Gaikwad (supra) wherein the parameters required to grant the benefit of Section 304 Part II IPC have been considered in paragraphs 22 and 23 it has been held as follows; "22. In Camilo Vaz v. State of Goa (2000) 9 SCC 1 , the accused had hit the deceased with a danda during a premeditated gang-fight, resulting in the death of the victim. Both the Trial Court and the Bombay High Court convicted the appellant under Section 302 I.P.C. This Court, however, converted the conviction to one under Section 304, Part II, I.P.C. and observed: "....When a person hits another with a danda on a vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in Part II of Section 304, IPC as in the present case..." (emphasis supplied) 23. In Jagrup Singh v. State of Haryana (1981) 3 SCC 616 the accused had given a blow on the head of the deceased with the blunt side of a gandhala during a sudden fight causing a fracture to the skull and consequent death. This Court altered the conviction from Section 302 to Section 304, Part II IPC placing reliance upon the decision in Chamru Budhwa v. State of Madhya Pradesh AIR 1954 SC 652 in which case also the exchange of abuses had led both the parties to use lathis in a fight that ensued in which the deceased was hit on the head by one of the lathi blows causing a fracture of the skull and his ultimate death. The accused was convicted for the offence of culpable homicide not amounting to murder under Section 304 Part II IPC". 40. Thus, on the basis of foregoing discussions, the appeal deserves to be allowed in part. Accordingly the same is partly allowed. The impugned judgment dated 07.02.1985 passed by the Sessions Judge, Badaun stands modified only to the extent that instead of Section 302/34 IPC, the accused appellant nos. 1 and 2 namely Virendra and Gajraj shall stand convicted for the offence culpable homicide not amounting to murder under Section 304 Part II read with Section 34 IPC. Accordingly, each of them is sentenced to undergo the rigorous imprisonment of five years under Section 304 Part II read with Section 34 IPC. Further, the conviction and sentence of the appellants under Sections 325/34 and 323/34 is maintained. 41. All the sentences shall run concurrently. The period spent previously by the accused appellant nos. 1 and 2 in jail be adjusted against the period of their sentences. 42. Appellant Nos. 1 and 2 namely Virendra and Gajraj respectively are on bail. Their personal and surety bonds are cancelled and they are directed to surrender before the Chief Judicial Magistrate concerned immediately to serve out the remaining sentence imposed upon them by this Court.