JUDGMENT : Sandeep Mehta, J. 1. The appellants herein have been convicted and sentenced as below vide judgment dated 25.10.2017 passed by learned Additional Sessions Judge, Churu in Sessions Case No. 15/2013 (29/2012): For offence under Section 302 r/w Section 34 I.P.C. Life Imprisonment & fine of Rs. 10,000/- each, in default of payment of fine, to further undergo 6 months' additional simple imprisonment. 2. Being aggrieved of their conviction as recorded by the trial court and the sentences awarded to them, they have preferred the instant appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted hereinbelow. 4. On 19.5.2012, Guddi Devi (P.W. 1) wife of the deceased Ramkumar lodged a written report (Ex. P1) to the S.H.O. P.S. Bhanipura, District Churu at 9 pm alleging inter-alia that on the previous night at about 9-9:30 PM, accused Kalu Ram and Ratna Ram sons of Guganram were hurling (foul) abuses to Deeparam while standing in front of his house. Deeparam warned them not to do so on which, these two persons scaled the boundary wall of Deeparam's house and assaulted Deeparam as well as his wife. On hearing the hue and cry, the informant's husband Ramkumar intervened and asked the accused to desist from their offensive activities on which, Kalu Ram and Ratna Ram exhorted that Deeparam would be attended later on and first, he (Ramkumar) should be taken to task. While saying so, the accused allegedly called their father Guganram and mother Rampyari and all four forced their way into the house of the informant armed with lathis. Her husband Ramkumar was sitting on a cot in the porch of the house. All the four accused started raining indiscriminate lathi blows on her husband who raised a hue and cry. On hearing the fervent cries of her husband, the informant came out running and saw the accused belaboring her husband. When she tried to intervene, she was warned that if she came near, she too would be killed. On this, the informant became terrified and kept standing in their porch. She raised a cry of Bachao Bachao on which, Deeparam came inside the porch. The four assailants dragged her husband out of the house and continued to beat him there. On hearing the shouts, the neighbours collected on which, the accused left her husband and ran away. On this, the informant became terrified and kept standing in their porch. She raised a cry of Bachao Bachao on which, Deeparam came inside the porch. The four assailants dragged her husband out of the house and continued to beat him there. On hearing the shouts, the neighbours collected on which, the accused left her husband and ran away. The informant and Deeparam checked Ramkumar and saw that he was bleeding profusely and had lost his senses. He was taken to the Sardarshahar Hospital for treatment in a jeep. The doctor at Sardarshahar referred Ramkumar to Bikaner upon which, he was taken to Bikaner Hospital where, he passed away while undergoing treatment. The informant alleged that she could not report the matter earlier because she was busy in the treatment of her husband. On the basis of this report, an F.I.R. No. 54/2012 was registered at the P.S. Bhanipura, District Churu for the offences under Sections 302 and 34 I.P.C. and investigation was commenced. The dead body of Ramkumar was subjected to post mortem by a Medical Board constituted at the PBM Hospital, Bikaner which issued the post mortem report (Ex. P19) noting the following injuries: (1) Stitched wound 5.5 cm in length with an associated swelling on the left parietal region. (2) Swelling on the left side of chest with a 2 cm surgical incisive for inserting a tube. 5. On opening the wounds, subdural haematoma was seen underneath the frontal parietal and temporal regions. There was a comminuted fracture of left parietal bone extending till the temporal and frontal area. Blood had coagulated under the injury on chest. Ribs Nos. 3 to 6 were fractured. The upper lobe of the left lung was having a contusion associated to a laceration. 400 ml of blood was collected in the lung. All the injuries were ante-mortem in nature. The injury to the chest leading to excessive haemorrhage was opined to be sufficient in the ordinary course of nature to cause death. The Investigating Officer recovered a bamboo stick from the accused Kalu Ram, a wooden club from the accused Ratna Ram and a stick of a shrub from Rampyari in furtherance of the informations supplied by accused under Section 27 of the Evidence Act. The Investigating Officer recovered a bamboo stick from the accused Kalu Ram, a wooden club from the accused Ratna Ram and a stick of a shrub from Rampyari in furtherance of the informations supplied by accused under Section 27 of the Evidence Act. After concluding investigation, a charge-sheet was submitted against three appellants herein for the offences under Sections 302 and 302/34 I.P.C. whereas, the charges against accused Guganram were not found proved and a finding was recorded that he was falsely implicated in the case. 6. Since the offences were sessions triable, the case was committed to the court of Sessions Judge, Churu for trial. The learned trial Judge framed charges against all the three accused for these offences, who denied the same and claimed trial. The prosecution examined as many as 16 witnesses and exhibited 29 documents in support of its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against them in the prosecution evidence, the accused refuted the same and claimed to have been falsely implicated for oblique motives. After hearing and appreciating the arguments advanced by the prosecution and the defence and after appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellants as above. Hence, this appeal. 7. Shri Vineet Jain, learned counsel representing the appellants vehemently and fervently urged that so far as the appellant Rampyari is concerned, she has apparently been falsely implicated in the case for oblique motives. He urged that the quarrel took place between the accused Ratna Ram and Kalu Ram on one hand and Deeparam on the other and thus, it cannot be accepted or believed that these two young boys would require the aid or would call their old, aged parents to participate in the incident. He contended that since the quarrel that started between the appellants and Deeparam, spilled over to the house of Ramkumar in continuation, there is no likelihood whatsoever that these two accused would have had the opportunity to call their parents to the place of the occurrence. He further submitted that the allegations levelled by the prosecution witnesses against Rampyari and Guganram are identical in nature and since Guganram was exonerated by the Police, as per him, manifestly, no distinction is available qua the appellant Rampyari, who too deserves to be acquitted by giving her the benefit of doubt. He further submitted that the allegations levelled by the prosecution witnesses against Rampyari and Guganram are identical in nature and since Guganram was exonerated by the Police, as per him, manifestly, no distinction is available qua the appellant Rampyari, who too deserves to be acquitted by giving her the benefit of doubt. As regards the appellants Kalu Ram and Ratna Ram, the contention of Shri Jain was that a quarrel was going on between these two accused and Deeparam and there is no allegation of the witnesses that either of the accused was armed with a weapon at that point of time. He urged that Ramkumar intervened in the quarrel and at that instance, acting on the spur of the moment, the accused appeared to have used some sticks etc. lying at the place of the incident against the intervenor without having any intention of killing him or causing him such injuries which could be construed to be sufficient in the ordinary course of nature to cause death. While relying upon the decision rendered by Hon'ble Division Bench of this Court at Jaipur Bench in the case of Prem Singh Vs. State of Rajasthan (D.B. Cr. Appeal No. 46/2007) decided on 16.1.2015, Shri Jain urged that the conviction of these two appellants deserves to be altered from that of the offence under Section 302 I.P.C. to one under Section 304 Part II I.P.C. with suitable reduction in sentence. 8. Learned Public Prosecutor has on the other hand vehemently and fervently opposed the submissions advanced by Shri Jain. He urged that the eye-witnesses P.W. 1 Guddi, P.W. 2 Deeparam, P.W. 4 Smt. Vimla, P.W. 5 Jyana Devi and PW. 6 Mukesh have attributed specific role to all the three accused in the assault made on Ramkumar. He urged that Ramkumar had no dispute with the accused persons and yet, simply because he requested them to stop the assault at Deeparam, the accused acted in a highly cruel manner and rained indiscriminate blows by blunt weapons to Ramkumar leading to fracture of his skull and three ribs. He urged that Ramkumar had no dispute with the accused persons and yet, simply because he requested them to stop the assault at Deeparam, the accused acted in a highly cruel manner and rained indiscriminate blows by blunt weapons to Ramkumar leading to fracture of his skull and three ribs. He urged that as per the statement of Medical Officer, these injuries were sufficient in the ordinary course of nature to cause death and thus, as per learned Public Prosecutor, no leniency is called for in favour of the accused appellants either on the aspect of their conviction or on the aspect of the toning down of the offence. He thus implored the Court to dismiss the appeal. 9. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned judgment and have minutely sifted the evidence available on record. 10. On a perusal of the statements of all the prosecution eyewitnesses viz. P.W. 1 Guddi, P.W. 3 Deeparam and P.W. 4 Smt. Vimla, P.W. 5 Jyana Devi and P.W. 6 Mukesh, it is clear that the initial quarrel took place between the accused appellants Ratna Ram and Kalu Ram on one hand and Deeparam on the other hand. There is no allegation of any of these witnesses that in this part of the quarrel, either of the accused were armed. While the quarrel was going on, Ramkumar intervened on which, the two accused Ratna Ram and Kalu Ram appear to have shifted their attention on to him. Ex-facie, we are of the view that the version of all the eyewitnesses that in this part of the fight, two accused Ratna Ram and Kalu Ram called their parents i.e. Rampyari and Guganram, who too joined in the assault being made on Ramkumar is a sheer exaggeration unworthy of credence. The two accused Ratna Ram and Kalu Ram are able-bodied men. The fight between them and Deeparam appears to have been erupted at the spur of the moment without any premeditation and thus, ex-facie, allegation that these two accused took a time off and called their parents to assist in the assault does not appeal to conscience. Apparently, Rampyari and Guganram appear to have been roped into the case as a sheer measure of over-implication. The Investigating Officer did not file charge-sheet against Guganram finding him to have been falsely implicated. Apparently, Rampyari and Guganram appear to have been roped into the case as a sheer measure of over-implication. The Investigating Officer did not file charge-sheet against Guganram finding him to have been falsely implicated. Smt. Guddi Devi P.W. 1, in her cross-examination admitted that when Ratna Ram and Kalu Ram were hurling abuses, Rampyari and Guganram were not with them and that she did not see both of these accused going to the place of incident. Thus, from a threadbare perusal of the statements of all the eye-witnesses named supra, no clear distinction is visible in the case of Rampyari and Guganram and her name has manifestly been taken as an assailant as a sheer measure of over-implication by the partisan witnesses and she is entitled to be acquitted of the charges by giving her the benefit of doubt. 11. Having held so, we now proceed to consider the submission advanced by Shri Jain that the accused appellants Ratna Ram and Kalu Ram cannot be held guilty for the offence under Section 302 I.P.C. and that their conviction should be altered and toned down to the offence under Section 304 Part II I.P.C. For this purpose, we have perused the statements of all the eye-witnesses referred to supra, who stated in unequivocal terms that the initial quarrel took place between Ratna Ram and Kalu Ram on the one hand and Deeparam on the other. While the quarrel was going on between these three persons, Ramkumar intervened whereafter, the accused shifted their attention on to him. The eye-witnesses have categorically alleged that four accused (Ratnaram, Kaluram, Rampyari and Guganram) rained indiscriminate lathi blows on the person of Ramkumar. He was initially beaten inside the porch of his house. Thereafter, the accused dragged him out and assaulted him in front of his house as well. No specific overt-act or specific injury has been attributed to either of these two accused in the assault made at Ramkumar. The Medical Officers P.W. 11 Dr. Rajesh Gupta, who issued the initial injury report (Ex. P18) and Dr. P.K. Saini who conducted post mortem on the body of the deceased and issued the post mortem report (Ex. P19) proved the fact that they noticed only two injuries on the body of the deceased. Dr. P.K. Saini clearly opined in his evidence that the head injury noticed on the body of the deceased was not fatal. P18) and Dr. P.K. Saini who conducted post mortem on the body of the deceased and issued the post mortem report (Ex. P19) proved the fact that they noticed only two injuries on the body of the deceased. Dr. P.K. Saini clearly opined in his evidence that the head injury noticed on the body of the deceased was not fatal. The injury to the chest resulted into fracture of three ribs leading to injury to the lungs associated with interval haemorrhage which proved fatal. Thus apparently, the eye-witnesses have made gross exaggeration regarding the numbers of injuries inflicted by the accused on the person of Ramkumar and to this extent, their evidence is contradicted by the medical evidence. Admittedly, Ramkumar was an intervenor and the accused had no cause or intention to inflict the injuries to him. 12. In this background, we are of the firm view that the following observations made by Hon'ble Division Bench of Jaipur Bench of this Court in the case of Prem Singh (Supra) (relied upon by Shri Vineet Jain) apply to the facts of the case at hand on all fours: "Thus, we are of the view that the witnesses in the Court have made improvements regarding the manner in which the injury was caused to deceased Kamla, mother of Kunjilal (P.W. 5). Having held statement made by the complainant, Kunjilal (P.W. 5) in the FIR is reliable and injury was caused to Kamla while she had intervened to save and rescue her son and daughter-in-law, we have to ponder, that in a case, where only solitary blow of lathi has been caused on the person of intervener, what offence will be made out? In the present case, no blow has been repeated. In Babu Lal Vs. State of Rajasthan (142) RLW 1988(1) 493 a Division Bench of this Court relying upon judgments of Hon'ble Apex Court in case of Hardev Singh Vs. State of Punjab ( AIR 1975 SC 179 ), Jagat Singh Vs. State of Haryana ( 1977 1 SCC 225 ), Tholan Vs. State of Tamil Nadu (1984 Cr.L.J. 478), Kesar Singh Vs. State of Rajasthan (1981 Raj. Criminal Cases 20), Munshi Vs. State of Rajasthan (1981 Cr.L.J. Raj. 503), Badri Lal Vs. State of Rajasthan (1981 Cr.L.J. Raj. 474) and Chaman Budhwa Vs. State of Haryana ( 1977 1 SCC 225 ), Tholan Vs. State of Tamil Nadu (1984 Cr.L.J. 478), Kesar Singh Vs. State of Rajasthan (1981 Raj. Criminal Cases 20), Munshi Vs. State of Rajasthan (1981 Cr.L.J. Raj. 503), Badri Lal Vs. State of Rajasthan (1981 Cr.L.J. Raj. 474) and Chaman Budhwa Vs. State of M.P. ( AIR 1954 SC 652 ) held that in case where the intervener receives an injury, the offence would fall under Section 304 Part II, and not under Section 302 IPC. It will be apposite here to reproduce the following paras of the judgment:- 11. Learned Counsel for the appellant has placed reliance on the following authorities: Hardev Singh and Anr. v. The State of Punjab; Jagat Singh v. State of Haryana; Tholan v. State of Tamil Nadu 1984 Cr.LJ 478; Kesar Singh v. State of Rajasthan 1981 Raj. Criminal Cases 20; Munshi and Ors. v. State of Rajasthan 1981 Cr.LR (Raj.) 503; Badri Lal v. The State of Rajasthan 1981 Cr.LR (Raj.) 474; and Chamru Bhudwa v. State of M.P.. 12. We have gone through the aforesaid authorities. The Supreme Court in Tholan's case (supra), has referred to several earlier cases of the Supreme Court, while convicting the accused persons in that case under Section 304 Part-II, IPC, held that though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and, therefore, he could be attributed with knowledge that he was likely to 'cause death', and, therefore, he could not be convicted under Section 302, IPC. Their Lordships of the Supreme Court convicted the accused appellant in that case, under Section 304, Part-II, IPC In the present case also, we have mentioned above, the accused appellant inflicted a single blow in the incident, as a result of some altercation between accused appellant and Banshi. Deceased Jassa Ram was only an intervener and there was no premeditation or motive or enmity, and looking to the age of the petitioner at the time of the incident, we are of the opinion that the accused appellant should be convicted under Section 304, Part-II. 13. In the result, we allow this appeal in part, set aside the conviction and sentence under Section 302, IPC passed against the appellant Babulal, by the trial court, instead we hold him guilty under Section 304, Part-II, IPC. 13. In the result, we allow this appeal in part, set aside the conviction and sentence under Section 302, IPC passed against the appellant Babulal, by the trial court, instead we hold him guilty under Section 304, Part-II, IPC. Appellant is thus, convicted under Section 304, Part II, IPC and sentenced to 5 years RI and a fine of Rs. 500/-, in default of payment of fine, three months RI. His conviction under Section 450, IPC recorded by the trial court is maintained. Both the sentences shall run concurrently." 13. In wake of the discussion made hereinabove, we quash and set aside the impugned judgment dated 25.10.2017 passed by learned Additional Sessions Judge, Churu in Sessions Case No. 15/2013 (29/2012) to the extent, the appellant Rampyari was convicted for the offence under Section 302 read with 34 I.P.C. and acquit her of the charges by giving her the benefit of doubt. 14. We also alter the conviction of the appellants Ratna Ram and Kalu Ram from the offence under Section 302/34 I.P.C. to one under Section 304 Part II read with Section 34 I.P.C. and sentence them to suffer seven years' rigorous imprisonment each and a fine of Rs. 10,000/- each, in default of payment of fine, to further undergo six months' additional imprisonment. 15. The accused appellants hail from a downtrodden section of the society and thus, there is no possibility that any significant amount of compensation can be recovered from them by resorting to the procedure provided under Section 357 Cr.P.C. 16. Thus, considering the fact that the first informant Smt. Guddi Devi P.W. 1, lost her husband and the sole bread earner of the family in the unfortunate incident, we hereby direct that she shall be granted compensation quantified @ Rs. 4 lacs by invoking Section 357A Cr.P.C. read with Clause 1 of the Schedule under Rule 5(8) of the Rajasthan Victims Compensation Scheme, 2011 after ascertaining her identity. 17. The amount shall be deposited in Fixed Deposit Receipts for a tenure of three years yielding maximum interest in any nationalised bank. Needful in this regard shall be done by the District Legal Services Authority, Churu. 18. The appeal is partly allowed in these terms. 19. Record be returned forthwith.