JUDGMENT : Rajiv Sharma, J. 1. Since common questions of law and facts are involved in both these appeals, i.e. CRA-D-824-DB of 2003 and CRA-D-479-DB of 2004, therefore, these are taken up together and being disposed of by a common judgment. 2. These appeals are instituted against judgment and order dated 16.08.2003, rendered by learned Additional Sessions Judge, Jalandhar, in Sessions Trial No. 16 dated 30.05.2002, whereby appellants Jatinder Kumar alias Rank alias Hardeep Kumar, Ashwani Kumar alias Bobby and Lal Chand alias Lalli were charged with and tried for the offence punishable under Sections 148 and 302 read with Section 34 IPC. 3. Appellant Jatinder Kumar alias Rank alias Hardeep Kumar was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo further rigorous imprisonment for one year under Section 302 IPC. Appellants Ashwani Kumar @ Bobby and Lal Chand alias Lalli were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- each and in default of payment of fine, to undergo further rigorous imprisonment for one year under Section 302 read with Section 34 IPC. 4. Appellant Ashwani Kumar alias Bobby died during the pendency of appeal on 17.05.2009. Hence, appeal qua him stands abated. 5. The case of the prosecution, in a nutshell, is that Sham Lal (PW-4) lodged report that at about 5.30 PM on 11.10.2001, he along with Hira Lal (since deceased) was returning to their houses from Harbans Nagar. Rakesh Kumar also joined them. When they were near Mohalla Shastri Nagar, three persons came on a scooter from the opposite side. Accused Ashwani Kumar alias Bobby was driving the scooter. Accused Hardeep Kumar alias Rank was the pillion rider. Accused Lal Chand alias Lalli was sitting in between them. They stopped the scooter in front of the scooter of the complainant. Hardeep Kumar alias Rank raised a lalkara not to spare Hira Lal. Hira Lal ran towards a street. He was followed by Ashwani Kumar. Hardeep Kumar alias Rank was armed with a kirpan and Lal Chand alias Lalli was armed with a khokhri. Ashwani Kumar caught hold of Hira Lal. Accused Hardeep Kumar alias Rank gave a kirpan blow hitting the head of Hira Lal. Hira Lal placed his left hand on his head. He was followed by Ashwani Kumar. Hardeep Kumar alias Rank was armed with a kirpan and Lal Chand alias Lalli was armed with a khokhri. Ashwani Kumar caught hold of Hira Lal. Accused Hardeep Kumar alias Rank gave a kirpan blow hitting the head of Hira Lal. Hira Lal placed his left hand on his head. Accused Lal Chand alias Lalli gave khokhri blow towards head of Hira Lal. Hira Lal caught hold of the khokhri with his right hand. Blood started oozing from his right hand. Hira Lal collapsed. Alarm was raised. The assailants ran away from the spot. Hira Lal was taken to Satyam Hospital. He was declared dead. The motive attributed was that the accused had attempted to commit theft in the house of the complainant party. The accused were arrested in that case by the police. They suspected that they were arrested at the instance of Hira Lal. FIR Ex.PE/2 was registered. Supplementary statement of Sham Lal was recorded. He disclosed that the real name of Hardeep Kumar alias Rank was Jatinder Kumar. SI Balwinder Iqbal Singh visited the spot, lifted the blood soaked earth. Accused were arrested. The investigation was completed and challan was put up after completing all the codal formalities. 6. The prosecution examined a number of witnesses. The accused were also examined under Section 313 Cr.P.C. They denied the case of the prosecution. According to them, they were falsely implicated. They examined three witnesses in their defence. 7. The appellants were convicted and sentenced, as noticed herein-above. Hence, these appeals. 8. Learned counsel appearing on behalf of the appellants have vehemently argued that the prosecution has failed to prove its case. Learned counsel appearing for the State has supported the judgment and order of the learned Court below. 9. We have heard learned counsel for the parties and gone through the judgment and record very carefully. 10. PW-1 Dr. Chaman Lal Girdhar conducted the post mortem examination on the body of Hira Lal on 12.10.2001. He noticed the following injuries on the person of the deceased:- (1) Incised wound 8 cm x 2.5 cm on the head extending from left to right, obliquely present on the parieto-occipital region, on dissection underlying bone fractured. Both meninges and brain cut and lacerated cranial cavity contained blood fluid and clotted. He noticed the following injuries on the person of the deceased:- (1) Incised wound 8 cm x 2.5 cm on the head extending from left to right, obliquely present on the parieto-occipital region, on dissection underlying bone fractured. Both meninges and brain cut and lacerated cranial cavity contained blood fluid and clotted. (2) Incised wound 4 cm x 1 cm on right parietal region, 9 cm from right ear pinna. (3) A 2 cm wound over the dorsum right index finger at proximal phalanx near inter phalangeal joint, underlying bone fractured. It was incised wound. (4) Incised wound 2 cm x 5 cm obliquely placed on dorsum of distal phalanx of right thumb. (5) 1 cm x 0.5 cm incised wound on dorsum of right middle finger of proximal phalanx near inter phalangeal joint, underlying muscle cut. (6) On the right side of the back of the chest 10 cm x 2.5 cm abrasion. (7) 3 cm x 1 cm abrasion on front of right leg. (8-A) 2 x 0.5 cm abrasion on posterior surface of right forearm. (8) Incised wound 6 x 1 cm on left shoulder obliquely placed. (9) 7 cm x 3 cm abrasion present on lateral aspect of left arm below injury No. 8. The cause of death, in his opinion, was shock and haemorrhage due to head injuries and other injuries described, which were sufficient to cause death in ordinary course of nature. All the injuries were ante mortem in nature. 11. PW-2 Dr. Rishi Mahajan deposed that Hira Lal was brought to the hospital. His MLR, Ex.PD, was prepared. Intimation to SHO, Police Station Division No. 5, Jalandhar, was sent. He noticed following injuries on the person of Hira Lal:- (1) 6 cm long 2 cm wide 1 cm deep open wound on the parieto occipital region near post fontanella. Bleeding positive. Injury was with sharp edged weapon. (2) A 2 cm deep wound over the right index finger at the proximal phalanx, near inter phalangeal joint. Underlying bone fractured. Injury made by sharp edged weapon. (3) .5 cm deep wound on the right middle finger at the proximal phalanx near the inter phalangeal joint. Underlying muscles cut. Injury made by sharp edged weapon. Injury No. 1 was dangerous to life. Injury No. 2 was grievous in nature and injury No. 3 was simple in nature. Underlying bone fractured. Injury made by sharp edged weapon. (3) .5 cm deep wound on the right middle finger at the proximal phalanx near the inter phalangeal joint. Underlying muscles cut. Injury made by sharp edged weapon. Injury No. 1 was dangerous to life. Injury No. 2 was grievous in nature and injury No. 3 was simple in nature. In his cross-examination, he deposed that one Piare Lal and Raj Kumar were the persons who had brought Hira Lal to Satyam Hospital on 11.10.2001. At the time of examination of Hira Lal, only three injuries were found on his person. Voluntarily stated that there were other minor injuries also on his person. He admitted that there was only one injury on the head of Hira Lal at the time of his admission in Satyam Hospital. The deceased was brought dead to the hospital. 12. PW-4 Sham Lal is one of the eye witnesses. According to him, he and Hira Lal were going towards Basti Danish Mandan, Jalandhar, on scooter, on 11.10.2001 at about 5.30 PM. Rakesh Kumar also joined them on his own scooter. When they reached near road 120 feet, Mohalla Shastri Nagar, three persons came on a scooter. Ashwani Kumar alias Bobby was driving the scooter. Lal Chand alias Lalli was the pillion rider. Hardeep Kumar alias Rank alias Jatinder Kumar was sitting on the scooter behind Lal Chand alias Lalli. Gurpreet Singh alias Poni, Shiva and Chetan were also with them. Ashwani Kumar stopped the scooter in front of his scooter. Hardeep was armed with kirpan. Lalli was armed with khokhri. Gurpreet was armed with gandasi. Chetan was armed with kirpan and Shiva was armed with khokhri. He identified accused Ashwani Kumar, Lal Chand and Hardeep Kumar alias Jatinder in the court. Accused followed Hira Lal. Ashwani Kumar gripped Hira Lal. Accused Jatinder alias Rank gave a kirpan blow on the head of Hira Lal. Thereafter, Hira Lal put his left hand on the head. Accused Lalli gave a khokhri blow which hit on the right hand of Hira Lal. Gurpreet Singh gave gandasi blow on the head of Hira Lal. Chetan gave a kirpan blow on the person of Hira Lal which hit on his left shoulder. He was given khokhri blow by Shiva which hit on his right thumb. They raised alarm. Chaman Lal also reached at the spot. He witnessed the occurrence. Gurpreet Singh gave gandasi blow on the head of Hira Lal. Chetan gave a kirpan blow on the person of Hira Lal which hit on his left shoulder. He was given khokhri blow by Shiva which hit on his right thumb. They raised alarm. Chaman Lal also reached at the spot. He witnessed the occurrence. Hira Lal became unconscious. He was taken to Satyam Hospital. The motive was that a theft was committed at their residence and the police had apprehended the accused on suspicion. The accused suspected that they had named them. He made statement Ex.PE before the police. Inquest report Ex.PC was prepared. In his cross-examination, he deposed that they had reached Satyam Hospital at about 6.30/6.45 PM. Since his father had reached the hospital, he did not tell the doctor that it was he who had brought the deceased to the hospital. He admitted that in statement Ex.PE, he had not mentioned that Gurpreet Singh, Chetan and Shiva had caused any injury to Hira Lal. He also admitted that while making statement Ex.DA at the time of inquest proceedings, he had not named Gurpreet Singh, Chetan and Shiva regarding their involvement in the incident. He had named Gurpreet Singh, Chetan and Shiva at the instance of his relatives. 13. PW-6 Chaman Lal deposed that on 11.10.2001 at about 5.30 PM, he was going towards Harbans Nagar. When he reached at the turning of 120 feet road, he saw three persons chasing Hira Lal. He identified them as Jatinder Kumar alias Rank, Lal Chand alias Lalli and Ashwani Kumar alias Bobby. He identified them in the court. They waylaid Hira Lal. Accused Ashwani Kumar took Hira Lal in his grip. Accused Jatinder Kumar gave a kirpan blow which hit Hira Lal on his head. Accused Lalli gave khokhri blow which hit him on his right arm. Three other persons, to whom he could not identify, also gave injuries to Hira Lal. In his cross-examination, he deposed that he had tied a chunni on the head of Hira Lal in order to stop the bleeding. He remained on the spot for 10-15 minutes. 14. PW-7 SI Balwinder Iqbal Singh deposed that he was posted as SHO, Police Station Division No. 5, Jalandhar, on 11.10.2001. He received telephonic message from Satyam Hospital. He went to the hospital. Statement of PW Sham Lal was recorded. FIR was registered. He remained on the spot for 10-15 minutes. 14. PW-7 SI Balwinder Iqbal Singh deposed that he was posted as SHO, Police Station Division No. 5, Jalandhar, on 11.10.2001. He received telephonic message from Satyam Hospital. He went to the hospital. Statement of PW Sham Lal was recorded. FIR was registered. He conducted inquest proceedings. Body was sent for post mortem examination. He also recorded supplementary statement of Sham Lal. Blood soaked earth was lifted from the spot. Accused Jatinder Kumar made disclosure statement Ex.PL, on the basis of which he got recovered kirpan. Accused Lal Chand also made disclosure statement Ex.PM. He got recovered khokhri from the bushes. In his cross-examination, he admitted that Sham Lal in his statement Ex.PE had not named any accused by the name of Jatinder Kumar. Volunteered, he was named later on by Sham Lal in his supplementary statement. The place of occurrence was busy place. 15. DW-1 Rajinder Kumar deposed that he heard noise on 11.10.2001 at about 5.00/5.30 PM. He went to the spot. When he reached at the spot, he saw one Hira Lal lying injured on the road. None of the assailants was present at the spot. He inquired from Hira Lal injured who had caused injuries to him. He told that he could not identify the assailants since they had muffled their faces. 16. DW-2 Mohkam Singh testified that he came to the spot on 11.10.2001 at about 5.30 PM, after hearing noise. He found Hira Lal lying in an injured condition. He did not inquire from Hira Lal who had caused injuries to him. There were three assailants who had caused injuries to him. There were only four persons at the spot, i.e. the injured and three assailants. 17. As per the FSL report Ex.PN, kirpan was stained with human blood. Khokhri was not sent to the FSL for examination. As per the FSL report Ex.PO, soil lifted from the spot was also stained with human blood. 18. The fact of the matter is that PW-4 Sham Lal had seen appellants Jatinder Kumar alias Rank alias Hardeep Kumar giving kirpan blow on the head of Hira Lal. He had also seen appellant Lal Chand alias Lalli giving khokhri blow on the right hand of Hira Lal. Hira Lal was taken to hospital. He was declared dead. According to PW-1 Dr. He had also seen appellant Lal Chand alias Lalli giving khokhri blow on the right hand of Hira Lal. Hira Lal was taken to hospital. He was declared dead. According to PW-1 Dr. Chaman Lal Girdhar, Hira Lal died due to shock and haemorrhage on account of head injuries and other injuries described in the post mortem report. The injuries were ante mortem in nature. The weapon of offence i.e. kirpan, was got recovered by appellant Jatinder Kumar alias Rank alias Hardeep Kumar, on the basis of his disclosure statement Ex.PL. It was found stained with human blood. The incident was also witnessed by other eye witness, i.e. PW-6 Chaman Lal. According to him also, Jatinder Kumar alias Rank alias Hardeep Kumar had given kirpan blow on the head of Hira Lal. Appellant Lal Chand alias Lalli had given khokhri blow which hit on right hand of Hira Lal. The motive attributed to the appellants is that they had attempted to commit theft in the house of the complainant party. They were under the impression that their names were told by Hira Lal to the police in theft case. As far as confusion of the name of appellant Jatinder Kumar is concerned, PW-4 Sham Lal has explained it in his cross-examination that he was nervous. The fact of the matter is that neither PW-4 Sham Lal nor PW-6 Chaman Lal tried to save Hira Lal from the appellants. 19. Learned counsel appearing on behalf of the appellants have vehemently argued that this case is covered under Section 304 Part II IPC, since only one blow each was given by appellants Jatinder Kumar alias Rank alias Hardeep Kumar and Lal Chand alias Lalli. However, we do not agree to this submission. The case of the prosecution falls under Section 304 Part I IPC, since appellant Jatinder Kumar alias Rank alias Hardeep Kumar had given blow on the head of Hira Lal with kirpan. He had the intention to cause his death. Similarly, appellant Lal Chand alias Lalli had also given khokhri blow on the right hand of the deceased, when he was trying to protect his head. 20. Learned counsel appearing on behalf of appellant Lal Chand alias Lalli has also argued that his client was juvenile on 11.10.2001. According to him, the date of birth of appellant Lal Chand alias Lalli was 29.05.1984. 20. Learned counsel appearing on behalf of appellant Lal Chand alias Lalli has also argued that his client was juvenile on 11.10.2001. According to him, the date of birth of appellant Lal Chand alias Lalli was 29.05.1984. The fact of the matter is that charge against appellant Lal Chand alias Lalli was framed on 06.07.2002. The prosecution led its evidence, which was closed on 25.04.2003. Statement of appellant Lal Chand alias Lalli under Section 313 Cr.P.C. was recorded on 30.04.2003. Thereafter, he moved an application on 10.05.2003 claiming his separate trial. However, he did not substantiate by leading any cogent evidence that his date of birth was 29.05.1984. 21. Accordingly, CRA-D-824-DB of 2003 is partly allowed qua appellant Jatinder Kumar alias Rank alias Hardeep Kumar. However, this appeal qua appellant Ashwani Kumar alias Bobby is abated, since he died during the pendency of the appeal on 17.05.2009, as mentioned here-inabove. CRA-D-479-DB of 2004 is also partly allowed. Conviction of appellants Jatinder Kumar alias Rank alias Hardeep Kumar and Lal Chand alias Lalli recorded by the trial court under Section 302 IPC is converted to Section 304 Part-I IPC. Both the appellants are in custody. The State is directed to produce them before this Court on 02.08.2019, to be heard on quantum of sentence under Section 304 Part-I IPC.