JUDGMENT : 1. Appellants had faced trial in FIR No. 72 dated 9.5.2011 registered at Police Station Bonli, District Sawai Madhopur under Sections 147, 148, 149, 302 IPC alongwith their co-accused Harbeji, Pushpa @ Ramneri, Saddi and Kali @ Lotanti. 2. Report Exhibit P-7 was lodged by the complainant Sampati Devi PW-10. 3. As per the prosecution story, Ramraj Meena husband of the complainant was having old land dispute with Prabhu. Due to this reason, Prabhu had attacked Ramraj on many occasions. On 8.5.2011, Ramraj had gone to bring fodder from their old kaccha house. Prabhu, Saddi, Nahar Singh, Harbeji, Kali @ Lotanti, Pappi @ Ramneri, Hansraj, Dhara Singh, Prahlad, Kailashi, Kaluram and Photu @ Pyarelal, armed with sticks came at about 4.00 p.m. and attacked Ramraj with sticks and fist blows. As a result, Ramraj became unconscious. When the complainant intervened, she was pushed aside and she was told that in case she intervened, she would also be murdered. Complainant saw that the accused had put something in the mouth of Ramraj and thereafter, had made him drink water. In the meantime, Bharatlal, Kailash and Nanji reached the spot. The assailants thought that Ramraj had died and so they left the spot. Mastram reached the spot and they all put Ramraj on a cot. Ramraj was taken for treatment to Lalsot and from there while they were taking him for treatment to Sawai Madhopur, condition of Ramraj became more serious and he was taken to Community Health Centre, Bharoti. Ramraj was referred to Jaipur hospital and while injured was being brought to Jaipur, he succumbed to his injuries. 4. After completion of investigation and necessary formalities, Challan was presented against the appellants and there co-accused Harbeji, Pushpa @ Ramneri, Saddi and Kali @ Lotanti. 5. Charges were framed against the accused under Sections 147, 148, 302, 302/149 and 323 IPC. Accused did not plead guilty and claimed trial. 6. In order to prove its case, prosecution examined 24 witnesses. Accused when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed that they were innocent. Appellant Prabhu Lal appeared in the witness-box as DW-1. 7. Trial Court vide impugned judgment/order dated 28.02.2015 ordered the conviction and sentence of the appellants as under:- U/s. 147 IPC: One year rigorous imprisonment, to pay a fine of Rs. 1000/- each and in default thereof to undergo one month simple imprisonment. Appellant Prabhu Lal appeared in the witness-box as DW-1. 7. Trial Court vide impugned judgment/order dated 28.02.2015 ordered the conviction and sentence of the appellants as under:- U/s. 147 IPC: One year rigorous imprisonment, to pay a fine of Rs. 1000/- each and in default thereof to undergo one month simple imprisonment. U/s. 302 r.w. 149 IPC: Life imprisonment, to pay a fine of Rs. 5000/- each and in default thereof to undergo one year simple imprisonment. U/s. 323 r.w. 149 IPC: Six months simple imprisonment, to pay a fine of Rs. 1000/- each and in default thereof to undergo one month simple imprisonment. 8. So far as accused Harbeji, Pushpa @ Ramneri, Saddi and Kali @ Lotanti are concerned, they were acquitted of the charges framed against them. Hence, the present appeal by the appellants. 9. There is an application moved by the appellants under Sections 391 read with Section 482 Cr.P.C. to adduce additional documentary as well as oral evidence. 10. Learned counsel for the appellants has submitted that the order passed by the Revenue Court dated 5.3.2009 Annexure A-1 was very necessary to be produced on record as it would help in deciding the lis between the parties. 11. Learned State Counsel has opposed the application. 12. In the present case, order now sought to be produced on record is dated 5.3.2009. Incident in the present case relates to the year 2011. Thus, the order now sought to be produced on record by way of additional evidence by the appellants, was in their knowledge during pendency of the trial. However, the said order was not produced on record by the appellants for the reasons best known to them. Hence, no ground is made out for allowing the application for permission to lead additional evidence. 13. Accordingly, the application is dismissed. 14. Learned counsel for the appellants has submitted that the prosecution had miserably failed to prove its case. The alleged eye -witnesses had not come out with the true story. In-fact, deceased had consumed poison and while he was being taken for treatment, he fell from the vehicle and suffered injuries. Prosecution had failed to prove on record the initial treatment record of the deceased undergone by him at Lalsot and Bhadoti. As per the medical evidence, stomach of the deceased had been cleaned. In-fact, deceased had consumed poison and while he was being taken for treatment, he fell from the vehicle and suffered injuries. Prosecution had failed to prove on record the initial treatment record of the deceased undergone by him at Lalsot and Bhadoti. As per the medical evidence, stomach of the deceased had been cleaned. The Investigating Officer was a relative of the complainant party and due to this reason he had falsely involved the appellants in this case. Appellants had no motive to commit the murder of the deceased. Appellant Prabhu Lal had been adopted by Ganesh and had inherited property of Ganesh. So far as deceased and other brothers of appellant Prabhu Lal are concerned, they inherited the property owned by their natural father Narayan. Investigation in the present case had been conducted in a poor manner. No blood stains or any other incriminating material had been lifted from the spot. 15. Learned State counsel has opposed the appeal and has submitted that the present case rests on eye-witness account. Presence of the complainant at the spot was natural. From statements of eye-witnesses it was duly established that the appellants had committed murder of deceased Ramraj. 16. Complainant while appearing in the witness box as PW-10 has deposed as per the contents of the FIR. Statement of the complainant is corroborated by eye-witnesses PW-3 Bharat Lal and PW-6 Ravi Kumar @ Nanji. 17. PW-19 Dr. Hansraj Meena deposed that on 09.05.2011 he had conducted post-mortem examination on the dead body of Ramraj and proved the post-mortem examination report Ex-P.31. A perusal of Exhibit-P.31 reveals that the deceased had suffered following injuries:- "External injuries: 1. Small abrasion - irregular 2 in number on left side of face or cheek. 2. Abrasion 2/3 cm x 1/2 cm. Two in number at left side of neck. 3. Bruise and swelling on posterior surface of left ear, associated with swelling on mastoid process. 4. Bruise and swelling on right side of face, 4 cm x 3 cm in front of the right ear. 5. Swelling 8 cm x 4 cm on let parietal bone, above the ear. 6. Abrasion 2 cm x 1½ cm on medial side of right knee. 7. Abrasion 1½ cm x 1 cm on dorsal surface of right hand (jaw). 8. Bruise 3 in number on back of right chest, irregular 3 cm x 2 cm (each). 9. 5. Swelling 8 cm x 4 cm on let parietal bone, above the ear. 6. Abrasion 2 cm x 1½ cm on medial side of right knee. 7. Abrasion 1½ cm x 1 cm on dorsal surface of right hand (jaw). 8. Bruise 3 in number on back of right chest, irregular 3 cm x 2 cm (each). 9. Abrasion, oval 2½ cm x 2 cm on back of right chest, at posterior axillary line. 10. Bruise multiple, 3 in number on back of left chest, at posterior axillary line, on both sides 3 cm x 2 cm (each). 11. Abrasion, oval 2½ cm x 2 cm on back of right chest, near vertebrae column. 12. Multiple abrasion 3 in number 1½ cm x 1 cm on supra scapular region of left chest. 13. Multiple abrasion 5 in number on lower 1/3 of medial surface of right leg. 14. Light swelling on back of neck. Internal injuries: Dislocation of IInd cervical vertebrae and fracture of IIIrd cervical vertebrae." 18. As per opinion of the medical board, cause of death of deceased was due to neurogenic shock resulting in cardio respiratory failure. All the Injuries were described as ante-mortem in nature. A perusal of Exhibit-P31 reveal that deceased had undergone some gastric treatment in a private hospital at Lalsot. There was cannula affixed on left elbow and right forearm of the deceased. 19. As per report of State Forensic Science Laboratory Exhibit-P-41, no poison was detected from the viscera of the deceased. 20. PW-24 Rajendra Kumar deposed that on 09.05.2011 he was posted as SHO, Police Station Bonli. He had registered the FIR on the basis of statement of complainant Sampati Meena after reaching the spot. Dead body was sent for post-mortem examination. Site plan was prepared. Statements of witnesses were recorded. He arrested the accused. He further deposed that on the basis of disclosure statements of accused Saddi, Pappi @ Ramneri, Nahar Singh, Prahlad, Pyare Lal, he got recovered sticks from the disclosed places. After completion of investigation and necessary formalities, he presented the challan against the accused. 21. Although, prosecution has failed to bring on record the treatment undergone by the deceased initially, but the said fact in itself is not fatal to the prosecution case with regard to involvement of the appellants in the crime. Involvement of the appellants in the crime is duly established from ocular version. 21. Although, prosecution has failed to bring on record the treatment undergone by the deceased initially, but the said fact in itself is not fatal to the prosecution case with regard to involvement of the appellants in the crime. Involvement of the appellants in the crime is duly established from ocular version. Statements of eye-witnesses with regard to involvement of the appellants in the crime inspire confidence. Presence of complainant at the spot was natural as the occurrence had occurred in her house. 22. Appellant Prabhu Lal appeared in the witness box as DW. 1 and had deposed that he was real brother of the deceased. He had been adopted by Ganesh. Cases were pending between him and the deceased for the last about 18-20 years. He had inherited the property owned by Ganesh. Deceased wanted a share in the property of Ganesh and due to this reason, cases were pending between them. He had not inflicted injuries to the deceased. Rather, on the day of incident a dispute had arisen between the deceased and his wife. He had come to know that Ramraj had taken poison on account of dispute with his wife and while he was being taken to the hospital on a motorcycle, he had suffered injuries in an accident and had died. As he had won the case relating to land dispute, he had been falsely involved in this case by the complainant party. 23. Statement of DW. 1 without any other corroboration on material aspects fails to rebut the testimonies of the eyewitnesses with regard to manner of incident. Hence, no reliance can be placed on the testimony of DW. 1 to hold that he was innocent. 24. Some lapses have been committed by the investigating agency in the present case, but because of the said fact complainant party cannot be made to suffer. Prosecution case is established from the statements of eye-witnesses which find corroboration from medical evidence. 25. Present case rests on eye-witness account. From the statements of eye-witnesses, it is evident that the appellants, who are named in the FIR as well as by the eye-witnesses during trial, had participated in the crime. 26. The question that requires consideration is that as to whether injuries have been inflicted on the person of the deceased by the appellants with a view to commit his murder. 27. 26. The question that requires consideration is that as to whether injuries have been inflicted on the person of the deceased by the appellants with a view to commit his murder. 27. As per site plan Exhibit-P.3, it is evident that fields of appellant Prabhu Lal are adjoining the place of incident. As per the FIR, Ramraj had gone to get fodder from his Kachha house. The said Kachha house adjoins the fields of appellant Prabhu Lal as is evident from Exhibit-P.3 site plan prepared by the Investigating Officer. Admittedly, there was some land dispute pending between the parties. It appears that when Ramraj went to get fodder from the room, he had some altercation with the appellants and as a result, he suffered injuries at their hands. 28. A perusal of post-mortem examination report reveals that most of injuries on the person of the deceased are abrasions/bruises and swelling. It has also been opined by the medical board of Doctors that injuries No. 1 to 13 were not sufficient to cause death separately. Deceased had suffered internal injuries, i.e, dislocation of second cervical vertebrae and fracture of third cervical vertebrae which resulted in his death. Hence, it can be inferred that appellants had no intention to commit murder of Ramraj, but had intended to inflict injuries to him. Appellants can be attributed knowledge that the injuries inflicted by them could result in death of Ramraj. Section 299 IPC reads as under:- "299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." Section 300 IPC reads as under:- "300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or- Thirdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1. - x x x x x x x x Exception 2. - x x x x x x x x Exception 3. - x x x x x x x x Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Exception 5. - x x x x x x x x" 29. Thus, as per Exception-4 to Section 300 IPC, a culpable homicide is not murder if it is committed in a sudden fight in the heat of passion upon a sudden quarrel and without any premeditation and without the offender having taken any undue advantage or acted in a cruel or unusual manner. 30. Thus, in the present case, it can be said that the appellants were not guilty of offence punishable under Section 302 IPC, but were guilty of offence punishable under Section 304 Part-II IPC. 31. In the facts and circumstance of the present case, learned trial court has erred in ordering conviction of appellants under Section 302 read with Section 149 IPC and they are acquitted of the charge framed against them under Section 302 read with Section 149 IPC. Appellants are held guilty of offence punishable under Section 304 Part-II read with Section 149 IPC and are convicted thereunder and are sentenced to undergo rigorous imprisonment for eight years with fine of Rs. Appellants are held guilty of offence punishable under Section 304 Part-II read with Section 149 IPC and are convicted thereunder and are sentenced to undergo rigorous imprisonment for eight years with fine of Rs. 5,000/- each and in default of payment of fine, they shall further undergo rigorous imprisonment for three months. Conviction and sentence of the appellants under Sections 147, 323 read with Section 149 IPC, as ordered by the trial court, are upheld. All the sentences shall run concurrently. 32. The appeal stands disposed of accordingly.