JUDGMENT : VINIT KUMAR MATHUR, J. 1. The present criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellants against the judgment and order of conviction dated 01.03.2014 passed by the learned Special Judge, SC/ST (Prevention of Atrocities Cases), Udaipur in Sessions Case No. 34/2011 whereby the accused-appellants have been convicted for the offence under Section 302/34 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 25,000/- each and in default of payment of fine to further undergo five months simple imprisonment. 2. Briefly the facts arising out from the complaint lodged by PW1 Smt. Hanna are that on 10.05.2011 at around 07:00 in the morning, she along with her husband Rama Gameti went for collection of wood in the forest area. They carried wood after cutting a dried tree of 'Gundi'. At around 11:00 in the morning, her brother in law Roopa was standing in the agricultural field. While calling her husband by using foul language, Roopa told him as to why they had brought wood from the 'Gundi' tree. When her husband went near the accused to explain the situation, Dharma, Madhu, Ganesh and Kogli came around and started assaulting and abusing her husband. The accused Roopa inflicted a blow by a stick on the head of her husband due to which he fell on the ground. On watching the incident, her daughter Santa, Nani (second wife of her husband) ran towards her husband to rescue him but the accused persons continued to assault him with fists, kicks and sticks. When they reached near her husband, all the accused persons ran towards the forest. Her husband died on the spot. After informing Naru, Ex- Sarpanch, a report was submitted. 3. On this information, a formal F.I.R. No.92/2011 was registered at Police Station Nai District Udaipur for the offence under Section 302/34 of I.P.C. against the accused-appellants. 4. After conclusion of investigation, the police filed charge-sheet against the accused-appellants for the offence under Section 302/34 of I.P.C. 5. Learned trial court framed, read over and explained the charge for the offence under Section 302/34 of I.P.C. to the accused appellants, who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 11 witnesses and Ex.P/1 to Ex.P/31 documents were exhibited. Learned trial court framed, read over and explained the charge for the offence under Section 302/34 of I.P.C. to the accused appellants, who pleaded not guilty and sought trial. 6. During the trial, the prosecution examined as many as 11 witnesses and Ex.P/1 to Ex.P/31 documents were exhibited. The accused-appellants were examined under Section 313 of Cr.P.C. and they were confronted with the evidence adduced against them during the course of trial to which they denied and stated that they were falsely implicated and were innocent. 7. Learned trial Court, after hearing the arguments from both the sides, convicted and sentenced the accused-appellants for the offence under section 302/34 IPC vide judgment dated 01.03.2014. Hence this appeal. 8. We have heard learned counsel for the accused-appellants and the learned Public Prosecutor. 9. Learned counsel for the accused-appellants has vehemently submitted that the deceased and the accused-appellants were close relatives. The incident occurred on a very trivial issue which was in respect of getting fire wood from the dried tree of 'Gundi' in the forest. A heated altercation ensued between the accused persons and the deceased and acting in the heat of passion, Roopa inflicted a single stick blow on the head of the deceased by Roopa resulting into the fatal injury being sustained by deceased Rama. There was no intention to cause death of the deceased Rama by accused-appellant Roopa. 10. He further submits that the wooden stick by which the injury was inflicted cannot be said to be a deadly weapon. 11. He further submits that a single stick intense blow was inflicted by the accused-appellant Roopa to the deceased at the spur of the movement and since there was no repetition of blows, therefore, there was no intention or motive of the accused during a sudden quarrel over a trivial issue to cause fatal injury to the deceased. 12. He further submits that even as per the statement of PW10 Dr. Anish Ahmed and postmortem report (Ex.P/22), it is clear that it was a single injury on the head of the deceased which was stated to be the cause of death. 13. He further submits that as far as accused Dharma @ Dharmchandra and Smt. Kogli are concerned, they only gave kick/fist blows to the deceased without any intention to inflict grievous injuries much less fatal injury to the deceased Rama. 13. He further submits that as far as accused Dharma @ Dharmchandra and Smt. Kogli are concerned, they only gave kick/fist blows to the deceased without any intention to inflict grievous injuries much less fatal injury to the deceased Rama. Therefore, there was over implication of these two appellants by the witnesses in the present case. There is no evidence against Dharma and Kogli to have assaulted and caused fatal injury to the deceased Rama. He, therefore, prays that the case of accused-appellant Roopa does not travel beyond section 304 Part-II of IPC and Dharma and Kogli are entitled to be acquitted in the present case. 14. Per contra, learned Public Prosecutor submits that PW1 Smt. Hanna, PW2 Nani and PW3 Santa were eye witnesses to the incident and they stated that the accused-appellants after calling Rama to the agricultural field assaulted him by stick blows which proved fatal. He further submits that in the statements of PW1 Smt. Hanna, PW2 Nani and PW3 Santa, it has specifically been alleged that the accused-appellant Roopa assaulted the deceased with a stick which proved fatal axe substantially corroborated from the statement of PW10 Dr. Anish Ahmed and postmortem report (Ex.P/22) wherein the cause of death is mentioned as 'shock due to Ante-mortem head injury' which was sufficient to cause death in the ordinary course of nature. He, therefore, submits that all the three accused persons had a common intention and after calling deceased Rama, they assaulted him in the agricultural field. He further submits that on the strength of testimony of witnesses, the prosecution had been able to prove the offence alleged against the appellants beyond all reasonable doubt as the testimony of the prosecution witnesses is very well corroborated by the recovery of the stick effected on the information supplied by the accused under Section 27 of the Evidence Act, the medical evidence in the shape of statement of PW10 Dr. Anish Ahmed and postmortem report (Ex.P/22). The learned trial court was therefore, justified in convicting the accused-appellants under section 302/34 IPC vide judgment dated 01.03.2014 which calls for no interference by this court. 15. We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as judgment dated 01.03.2014 impugned herein. P.W. 1 Smt. Hanna stated that they collected fire wood from the nearby forest and returned home. 15. We have considered the submissions made at the bar and have minutely gone through the record of the learned trial court as well as judgment dated 01.03.2014 impugned herein. P.W. 1 Smt. Hanna stated that they collected fire wood from the nearby forest and returned home. At around 11:00 am, Roopa started hurling abuse at her husband. When her husband went to the agricultural field where accused Roopa along with Dharma, Ganesh and Kogli were present, Roopa assaulted her husband with a stick. Accused Dharma and Kogli gave fist and kicks blows to her husband. She was watching this incident and called her daughter Santa and Nani who was second wife of the deceased for help. When they went to rescue Rama, all the accused persons ran towards the forest. Rama died on the spot. They went to Naru, Ex- Sarpanch and narrated the entire incident and lodged a complaint with the police. Nothing significant has come on record in the cross examination of this witness which may discredit her version set out in the examination in chief. 16. Pw2 Nani and PW3 Santa also stated on the same lines as PW1 Smt. Hanna. PW4 Naru Das stated that while he was at home, Santa D/o Rama came to his house and informed him that her father had been murdered by accused Roopa, Dharma and Kogli along with one more person whose name was not known to her. She further informed that on account of her father's collecting wood from the 'Gundi' tree, he was abused by the appellants and thereafter assaulted by a stick, fist blows and kicks. The accused Roopa inflicted stick blow on his head. PW10 Dr. Anish Ahmed who conducted autopsy upon the dead body of deceased Rama Gameti stated that there were five injuries out of which injury No.2 was lacerated wound of 1x1 cm bone deep over the right ear on his head. The cause of death was the head injury which was sufficient to cause death in the ordinary course of nature. 17. Pw11 Shweta Dhankad was the investigating Officer who conducted the investigation of the matter and stated that she prepared the site plan, recorded the statements of the witnesses, effected the recoveries, collected the samples. She further stated that after conducting the investigation, as prescribed in law, he submitted his report before the court of competent jurisdiction. 17. Pw11 Shweta Dhankad was the investigating Officer who conducted the investigation of the matter and stated that she prepared the site plan, recorded the statements of the witnesses, effected the recoveries, collected the samples. She further stated that after conducting the investigation, as prescribed in law, he submitted his report before the court of competent jurisdiction. The postmortem report is Ex.P/22 wherein the cause of death was shown as 'shock due to Ante-mortem head injury'. PW1 Smt. Hanna, PW2 Nani and PW3 Santa are close relatives of the deceased being wife, daughter and second wife of deceased Rama and they witnessed the incident from a short distance i.e. their house. Their presence in the house near the agricultural field is quite natural. In their testimony, they clearly stated that a heated altercation ensued between the accused persons and the deceased Rama after which, he was assaulted them. The reason for the appellants to get agitated was cutting of the fire wood from 'Gundi' tree in the forest by the deceased Rama which in our view is a very trivial issue and when the appellants and the deceased were engaged in a heated altercation, suddenly at the spur of the moment, the accused Roopa lost control and inflicted a single injury on the head of deceased by a stick. 18. On careful perusal of the testimony of the material prosecution witnesses, we find that there is no indication therein that there was prior meeting of minds between the three accused appellants or that they had a common object for inflicting fatal injury to Rama. Manifestly, their evidence and more particularly, the cross-examination conducted from the witnesses reveal that there was a quarrel between the accused appellants and deceased Rama over a trivial issue of collecting fire wood from a Gundi Tree. During this, there was a heated exchange of words and at the spur of moment and in the heat of passion, there was quarrel between the accused appellants and deceased Roopa. The situation turned violent all of a sudden and in the heat of passion and at the spur of moment, a solitary blow was given to Rama. There was no premeditation to the incident and the fatal injury was inflicted to Rama by the accused Roopa alone by a stick which is commonly carried by the villagers. The situation turned violent all of a sudden and in the heat of passion and at the spur of moment, a solitary blow was given to Rama. There was no premeditation to the incident and the fatal injury was inflicted to Rama by the accused Roopa alone by a stick which is commonly carried by the villagers. In this background, a stick cannot be termed to be a dangerous weapon. The solitary injury inflicted by accused Roopa proved fatal as has been deposed by PW.10 Dr. Anish Ahmed who conducted the postmortem upon the body of the deceased and issued postmortem report (Ex.P.22). 19. We further note that as per the evidence of material prosecution witnesses, the accused Dharma and Smt. Kogli were not armed with any weapon and the highest allegation which has been set out against them is that they inflicted fist and kick blows to the deceased. However, this allegation is not corroborated by the postmortem report (Ex.P.22). 20. The fact that the appellants and the deceased are villagers of very backward area mostly inhabited by tribals. The present incident being an outcome of a very trivial issue and there was no premeditation or intention to cause fatal injury to deceased Rama. There being only single fatal injury attributed to accused appellant Roopa, his case falls within the ambit of section 304 Part-II IPC as there was no intention to cause death as discussed in the preceding paras. The conviction of Roopa is converted from offence under section 302 to section 304 II IPC. 21. As far as accused Dharma and Kogli are concerned, no specific role has been attributed to them as in the testimony of the eye witnesses, it is only stated that they inflicted fist and kick blows to the deceased. Manifestly, lack of any corresponding injury on the person of deceased is sufficient to satisfy us that these two accused appellants have been roped into this case by sheer over implication because by no stretch of imagination can they be enroped with common object to inflict injury to the deceased. It may be noted here that the trial Court did not frame any charge for the offence under Section 323 IPC against them. Thus, their implication in the case for inflicting simple injury to the deceased by fist and kick blows is not supported by single charge in this regard. It may be noted here that the trial Court did not frame any charge for the offence under Section 323 IPC against them. Thus, their implication in the case for inflicting simple injury to the deceased by fist and kick blows is not supported by single charge in this regard. Therefore, they are liable to be acquitted of the charge levelled against them. The prosecution had miserably failed to prove the allegation levelled against them under section 302/34 IPC beyond reasonable doubt, therefore, we are unable to sustain the judgment dated 01.03.2014 convicting the appellants No.2 Dharma & 3 Smt. Kogli for the offence under section 302/34 IPC. 22. We are gainfully supported by the judgment of the Hon'ble Supreme Court rendered in the case of Deo Nath Rai Vs. State of Bihar & Ors. Etc. Etc, (2018) CrLR 272 (SC) wherein the Hon'ble Supreme Court has held as under:- "9. Looking to the totality of the facts and circumstances of the case and the evidence on record, it is clear that it was only the accused Parsuram Rai who had assaulted Mohan Rai with the help of sword, whose assault resulted grievous injury, and the deceased Mohan Rai ultimately succumbed to the said injury during the course of transit to the hospital. The incident had taken place when the deceased was returning from the disputed land and the accused persons were busy in the adjacent field transplanting paddy seedlings from where they saw Mohan Rai crossing their land. There was no premeditation of any kind on the part of the accused to commit the murder of the deceased. However, the eye witnesses have deposed that accused - Wakil Rai came and started quarreling with Mohan Rai when other family members also joined. The quarrel not only suddenly erupted but also escalated without any premeditation. As rightly concluded by the High Court, the whole incident was spontaneous and went out of hand that too within short spell of time. 10. The quarrel not only suddenly erupted but also escalated without any premeditation. As rightly concluded by the High Court, the whole incident was spontaneous and went out of hand that too within short spell of time. 10. In the facts and circumstances of the case, though the High Court was justified in altering the conviction of the accused from Sections 302 and 302/149 IPC to Section 304 Part-II IPC, it was not justified in imposing lesser sentence on the accused, particularly on accused Parsuram Rai, who gave a sword blow on the right shoulder of the deceased Mohan Rai running up to the chest, which was grievous in nature and because of which Mohan Rai died during the transit to the hospital. In our considered opinion, the High Court ought to have imposed a sentence of 5 years on the accused Parsuram Rai along with a fine of Rs.50,000/- and on the other accused, while altering the sentence to the period already undergone, which in this case is approximately 2 years, the High Court ought to have imposed a fine of Rs.5,000/- on each of the other accused, namely, Wakil Rai, Ramayan Rai, Raj Ballam Rai, Ashok Rai and Sheo Kumar Rai. The conviction and sentence ordered by the High Court in respect of other offences stands confirmed. Since the sentences in respect of the other offences run concurrently, there is no need for the accused to undergo imprisonment in respect of these other offences inasmuch as the sentence imposed on them is already suffered by them. Accordingly the following order is passed: (a) the accused Parsuram Rai is hereby sentenced to undergo rigorous imprisonment for 5 years for the offence punishable under Section 304 Part-II IPC and also to pay a fine of Rs.50,000/-, which shall be deposited by him in the trial Court within six months from today. In case of default of payment of fine, he shall further undergo imprisonment for one year. The accused Parsuram Rai be taken into custody forthwith to serve out the remaining portion of his sentence; (b) insofar as the other accused, namely, Wakil Rai, Ramayan Rai, Raj Ballam Rai, Ashok Rai and Sheo Kumar Rai are concerned, the judgment and order of conviction and sentence passed by the High Court stands confirmed. The accused Parsuram Rai be taken into custody forthwith to serve out the remaining portion of his sentence; (b) insofar as the other accused, namely, Wakil Rai, Ramayan Rai, Raj Ballam Rai, Ashok Rai and Sheo Kumar Rai are concerned, the judgment and order of conviction and sentence passed by the High Court stands confirmed. However, all these accused are directed to pay a fine of Rs.5,000/- each, which shall be deposited in the trial Court within eight weeks from today, and in default of payment of fine, all these accused shall undergo rigorous imprisonment for two months; (c) the accused are entitled to the benefit of set-off as provided under Section 428 of the Code of Criminal Procedure; and (d) the amount of fine, as directed above, if deposited, shall be paid to the wife of the deceased Mohan Rai as compensation." 23. In view of whatever stated above, the instant appeal is partly allowed. The appellants Dharma @ Dharm Chand and Smt. Kogli are acquitted from the charge under section 302/34 IPC and the sentence of life imprisonment awarded to them by learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Udaipur in Sessions Case No.34/2011 for the said offence vide judgment dated 01.03.2014 is set aside. The accused appellants Dharma @ Dharm Chand and Smt. Kogli are on bail. Their bail bonds are discharged. The appellant Roopa is acquitted from the charge under section 302/34 IPC and instead, he is convicted for the offence under section 304 Part-II IPC simplicitor. 24. He is in custody from 11.05.2011. Thus, we sentence him to the period of imprisonment already undergone by him and a fine of Rs.2000/- in default of payment of fine, to further undergo one month's simple Imprisonment. The appellant Roopa shall be released from custody upon depositing the amount of fine, if not wanted in any other case. The record be returned forthwith.