JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral) - Dilip son of Teju Raigar alongwith his four brothers namely Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal was tried by the court of Additional Sessions Judge No.4, Ajmer. The investigating agency had also sent two ladies namely Smt. Parbati wife of Mukesh Raigar and Smt. Maya wife of Gyanchand for the trial alongwith above five said brothers. All the seven accused belong to one family. 2. The court of Additional Sessions Judge No.4, Ajmer vide impugned judgment dated 9.10.2015 acquitted Smt. Parbati and Smt. Maya of all the offences. The trial Judge individually held accused Dilip guilty of offence of murder and convicted him for the offences under Sections 148, 302, 325/149 and 323/149 IPC, whereas co-accused Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal all the four brothers of Dilip were convicted for the offences under Sections 148, 325/149 and 323/149 IPC. Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal were acquitted of offence under Section 302/149 IPC. 3. Having convicted the appellant Dilip for above said offences, the trial Judge vide a separate order of even date sentenced him as under:- U/s. 302 IPC-to undergo rigorous life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo additional three months RI. U/s. 148 IPC-to undergo six months SI and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo additional seven days SI. U/s. 325/149 IPC-to undergo two years SI and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo additional one month SI. U/s. 323/149 IPC-to undergo six months SI and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo additional fifteen days SI. 4. All the sentences were ordered to run concurrently. 5. Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal were released on probation. 6. Aggrieved against his conviction and sentence, Dilip has filed D.B. Cr. Appeal No.1124/2015. State of Rajasthan has also assailed acquittal of Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal for offence under Section 302/149 IPC and they have also questioned the acquittal of Smt. Parbati and Smt. Maya by instituting D.B. Cr. Leave to Appeal No. 26/2016. 7. In D.B. Cr. Leave to Appeal No. 26/2016, till today no notice has been issued. 8. We shall decide D.B. Cr. Leave to Appeal No. 26/2016. 7. In D.B. Cr. Leave to Appeal No. 26/2016, till today no notice has been issued. 8. We shall decide D.B. Cr. Appeal No. 1124/2015 and D.B. Cr. Leave to Appeal No. 26/2016 together, as in both the cases impugned judgment is common. 9. The criminal proceedings in the present case were set into motion on the basis of statement Exhibit-P/1 made by Naurat Mai (P.W.1) before ASI Kan Singh (P.W.16), Police Station Nasirabad Sadar. On the basis of statement (Exhibit-P/1), a formal FIR (Exhibit-P/41) bearing No.151/2011 was registered at Police Station Nasirabad Sadar, Ajmer for the offences under Sections 143, 149 and 307 IPC. Subsequently, due to death of Babu injured, offence under Section 302 IPC was added. 10. The statement (Exhibit-P/1) on the basis of which FIR (Exhibit-P/41) was registered, when translated into English, reads as under:- "Statement of Naurat Mai s/o Pachu Ji, by caste Raigar, aged 45 years, resident of Banewada, At Present Casualty Ward, JLNH Ajmer. Vide investigation copy report No.03 general Rojnamcha Police Station Nasirabad Sadar. On asking, made statement that I do labour work. My family is having a land dispute with the family of Teju. Due to this, in the morning at 7:00 AM, Dilip son of Teju started picking up Barda (debris) (we are informed that Barda consists of sand, earth stones etc... or is called Malba in common parlance) kept in front of our house. My wife Ramti restrained him and asked that why he is picking up Debris. Upon which, Dilip said that he will do so. Then my younger brother Babu went to him and told him not to pick up Barda. Dilip was having a lathi in his hand. With an intention to kill, he gave lathi blow on the head of my brother Babu due to which, he fell on the ground. I, my wife Ramti and Seema wife of Babu went ahead to save him. Meanwhile, Mukesh, Shankar, Gyanchand, Mahendra, Vijay, Smt. Panchi wife of Shankar, Maya wife of Gyanchand, Parvati wife of Mukesh, Smt. Kamla wife of Teju all came with common intention to cause our murder. They were armed with lathis. They opened attack on us and caused injuries on my head, both hands and feet and also on head, hands and feet of Babu. They were armed with lathis. They opened attack on us and caused injuries on my head, both hands and feet and also on head, hands and feet of Babu. They also caused injuries to my wife Ramti and Seema on various parts of body. My brother Babu became unconscious at the spot. I also fell on the ground. Considering ourselves as dead, accused decamped from the spot. With an intention to kill, they have given beating to us. Sd/- Naurat Mai ASI PS Nasirabad Sadar Date 1.7.11" 11. In the present case, the occurrence has taken place on 1.7.2011 at 7:00 AM in the morning. From the statement Exhibit-P/1, leading to registration of FIR (Exhibit-P/41) following facts are discernible:- a) That there was land dispute pending between the family of accused and the complainant, b) That regarding picking up Debris (Barda), wife of complainant Ramti restrained Dilip, upon which the accused Dilip had caused solitary lathi blow on the head of Babu who had also arrived at the spot to stop Dilip from picking debris. As a result of which, Babu fell on the ground and other family members from the side of accused and the complainant arrived at the spot. (c) That the family members of the accused caused injuries to Naurat Mai (P.W.1), Ramti (P.W.2) and Seema (P.W.10) wife of deceased Babu. 12. We shall briefly recapitulate the ocular version. 13. Naurat Mai (P.W.1) in the court stated that on 1.7.2011, Dilip started picking up Debris (Malba). This witness stated that his wife Ramti stopped him. Then his brother Babu came and thereafter, Dilip went to his house and called his brothers namely Shankar, Gyana, Mukesh, Mahendra, Vijay. This witness improved his version and stated that Dilip brought an iron rod. In the court, this witness stated that Dilip caused injury with an iron rod on the head of Babu. Thus, this witness made a departure from his first version given in the FIR by stating that the accused Dilip went to his house and brought an iron rod and caused injury to Babu, whereas, in the initial version, it was stated that accused Dilip was already armed with lathi and he caused solitary blow on the head of deceased Babu. 14. Ramti (P.W.2) in the court has also made statement in consonance with the statement made by Naurat Mai in the court. 14. Ramti (P.W.2) in the court has also made statement in consonance with the statement made by Naurat Mai in the court. Vikram (P.W.3) who is son of Naurat Mai (P.W.1) has also made statement on the similar lines. 15. Seema (P.W.10) wife of deceased Babu in the court stated that her husband Babu was going towards field when he was hit by a jeep. This witness has not supported the prosecution and was declared hostile. 16. Medical evidence reveals that besides head injury, deceased Babu has also suffered fracture of Tibia - Fibula. 17. We find that in the FIR (Exhibit-P/41), no injury on the leg or foot has been attributed to any person. We will rely upon the statement (Exhibit-P/1) made by Naurat Mai (P.W.1) before the police on the basis of which formal FIR (Exhibit-P/41) was registered, as the same contains spontaneous version. 18. In the present case, FIR has been lodged promptly. Subsequently, consultations and deliberations have crept in resulting into inflation of number of the accused, assignment and distribution of the injuries to all accused. In the initial version, when the accused Dilip was picking up Barda (Malba), an altercation had ensued. As per the FIR, the accused Dilip caused solitary blow on the head of deceased Babu. Thereafter, when other members from the family of complainant came, accused Dilip is said to have called his family members and thereafter, the injuries were caused by the family members of the accused to other family members of the deceased. Thus, the occurrence has taken place in two parts. First part of the occurrence consists of giving of solitary blow by the accused Dilip on the head of deceased Babu and Second part of the occurrence pertains to when all family members arrived, they caused injuries to the witnesses and to the deceased Babu. 19. So far, second part of occurrence is concerned, it has been rightly held by the trial court that common object of the unlawful assembly was not to cause murder, as members of the unlawful assembly arrived at the spot after fatal blow had already been given. After the injury on the head of deceased Babu was caused, later all other injuries on the person of injured were caused on non-vital parts of the body. After the injury on the head of deceased Babu was caused, later all other injuries on the person of injured were caused on non-vital parts of the body. Therefore, the common object of the unlawful assembly has been rightly inferred by the trial court by holding that same was not to commit murder. 20. Since in the present case, due to lifting of Debris (Malba), an altercation had ensued and accused Dilip caused solitary blow on the head of deceased, we are convinced that the accused Dilip was having no intention to commit offence of culpable homicide amounting to murder. At most, we can attribute knowledge to the accused Dilip that in case lathi blow is caused on the head, the same will cause death of deceased Babu. Therefore, the offence will not fall under Section 302 IPC but under Section 304 Part II IPC. 21. Consequently, the conviction of accused Dilip for offence under Section 302 IPC is set aside and he is convicted for offence under Section 304 Part-II IPC. As a result of conversion of offence, we set aside the life imprisonment awarded upon appellant Dilip. 22. Taking totality of circumstances of the case, we are of the view that sentence of seven years shall serve the ends of justice. 23. Consequently, the conviction of accused appellant Dilip is modified and for the offence under Section 304 Part II IPC, he is awarded seven years RI and to pay a fine of Rs. 20,000/-, in default thereof he shall undergo one year RI. Thus, the appeal is disposed of in above terms. We also uphold conviction and sentence of the appellant for offences under Sections 148, 325/149 and 323/149 IPC IPC. Sentence awarded on above counts shall run concurrently. 24. Legal heirs of the deceased are also entitled to compensation under the Victim Compensation Scheme formulated by the State of Rajasthan under Section 357-A Cr.P.C., for death of deceased Babu. 25. Secretary, Rajasthan Legal Services Authority Jaipur is directed to disburse the amount of compensation under the Victim Compensation Scheme to the legal heirs of the deceased Babu. 26. A copy of this judgment be sent to the Secretary, Rajasthan Legal Services Authority Jaipur. D.B. Criminal Leave To Appeal No. 26/2016 27. The view formulated by the trial Judge cannot be termed perverse. 26. A copy of this judgment be sent to the Secretary, Rajasthan Legal Services Authority Jaipur. D.B. Criminal Leave To Appeal No. 26/2016 27. The view formulated by the trial Judge cannot be termed perverse. By converting the offence also, we have upheld the view formulated by the trial Judge. Consequently, there is no merit in the application for leave to appeal filed by the State and the same is dismissed.