JUDGMENT : B.K. Narayana, Ghandikota Sri Devi, JJ. 1. Heard Sri Amar Nath Tewari assisted by Sri Rajesh Kumar Srivastava learned Counsel for the appellant No. 2, Lal Singh and Sri Ashok Kumar Mishra assisted by Sri R.P. Sinha, learned Counsel for the appellant Nos. 3 and 4, Balwant Singh and Dharampal Singh, Sri Manvendra Singh, learned Counsel for the informant and Sri H.M.B. Sinha, learned A.G.A. for the State. 2. This appeal has been preferred by appellants-Jaswant Singh, Lal Singh, Balwant Singh sons of Raghuraj Singh and Dharampal Singh, Ajgar Singh sons of Ram Das against the judgment and order dated 9.1.1987 passed by 5th Additional Sessions Judge, Fatehpur in S.T. No. 103 of 1985 (State v. Jaswant Singh) convicting and sentencing the appellant Nos. 1 to 4 to imprisonment for life under sections 302/149 I.P.C., 5 years R.I. under section 307/149 LP.C., 1 year R.I. under section 148 I.P.C., 2 years R.I. under section 324/149 I.P.C. and six months R.I. under section 323/149 I.P.C. Appellant-Ajgar Singh was further convicted and sentenced six months R.I. under section 147 I.P.C. 3. Jaswant Singh A-1 and Ajgar Singh A-5 died during the pendency of this appeal and this appeal qua Jaswant Singh A-l and Ajgar Singh A-5 was dismissed as abated by order dated 29.5.2018 passed by another Co-ordinate Bench of this Court. 4. Upon being charge-sheeted, Jaswant Singh (deceased A-1), Lal Singh A-2, Balwant Singh A-3, Dharampal Singh A-4 and Ajgar Singh (deceased A-5) were committed to the Court of Sessions by C.J.M. Fatehpur on 12.2.1985 to stand their trial under sections 147, 148, 302, 307, 149 I.P.C. 5. Briefly stated the prosecution story, is that guriya festival was being celebrated by all the villagers at the tank which lies towards the south of village Dubepur, police station Jahanabad, District Fatehpur on 1.8.1984. At about 8 A.M. on the same day. The children of complainant-Hukum Singh P.W. 2 were also celebrating guriya festival and the children of Jaswant Singh (deceased A-1) were also present there for the same reason. At about 8 A.M. on the same day. The children of complainant-Hukum Singh P.W. 2 were also celebrating guriya festival and the children of Jaswant Singh (deceased A-1) were also present there for the same reason. While playing guriya, the children of both the families started quarrelling, Babu Singh brother of the complainant went there to pacify them and compromise the dispute whereupon Dharampal Singh A-4 armed with a gun, Ajgar Singh (deceased A-5) armed with lathi, Balwant Singh A-3 armed with pharsa, Lal Singh A-2 armed with tamancha and Jaswant Singh A-4 armed with pharsa reached there and after challenging Babu Singh, they exhorted each other to finish him. In the meantime, complainant, Hukum Singh P.W. 2 and the other villagers also arrived there. Dharampal Singh A-4 took the licensed gun of Balwant Singh A-3 from him and fired at Babu Singh but the shot missed. Thereupon he started reloading the gun, in the meantime complainant and his companions tried to snatch the gun from Balwant Singh A-3 but the barrel of the gun in which a live cartridge was stuck came into their hands while the remaining part of gun remained with Dharampal Singh A-4. He fled away with the remaining part of the gun. The other accused started beating the complainant and his companions with ballam, pharsa and lathi causing injures to them. Due to injuries sustained at the hands of the accused, Babu Singh died on the spot. P.W. 1 Chhota Singh, P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh and Pan Singh also received injuries. The occurrence was witnessed by Shiv Baran Singh, Prahlad Singh and Ram Saran Singh of village Dubepur. 6. Narrating the aforesaid facts, the written report was given by P.W. 2 Hukum Singh on 1.8.1984 at 9:30 A.M. at police outpost Bakewar, police station Jahanabad, District Fatehpur on the basis of which case under sections 147, 148, 302, 307, 149 I.P.C. was registered against the accused. The dead body of Babu Singh was also brought to the police outpost. 7. The inquest on the body of de-ceased-Babu Singh was held in the same police outpost on 1.8.1984. After completion of inquest proceedings, preparation of inquest report and other related documents namely challan lash, photo nash, letters to C.M.O. In-Charge and R.I. and specimen seal on the spot and proved during the trial and marked as Ext. Ka-1 to Ext. 7. The inquest on the body of de-ceased-Babu Singh was held in the same police outpost on 1.8.1984. After completion of inquest proceedings, preparation of inquest report and other related documents namely challan lash, photo nash, letters to C.M.O. In-Charge and R.I. and specimen seal on the spot and proved during the trial and marked as Ext. Ka-1 to Ext. Ka 10, the Investigating Officer of the case inspected the place of occurrence and prepared its site plan, collected bloodstained and simple earth from the place of occurrence and prepared recovery memo and fard for depositing the gun. The deceased's body was sealed and sent to the District Hospital for post-mortem examination. 8. The post-mortem on the body of deceased-Babu Singh was conducted on 1.8.1984 by P.W. 5 Dr. Bharat Namdeo who also prepared his post-mortem report Ext. Ka-12. The post-mortem report of the deceased indicates following ante-mortem injuries: (i) lacerated wound 2 inches x 1 inch over upper part of forehead near scalp in the middle bone deep. (ii) lacerated wound 1 inch x 1/2 inch x bone deep over scalp 1 inch behind injury No. 1. (iii) lacerated wound 1 inch x 1/2 inch over right side of scalp behind right ear. (iv) lacerated wound 1 inch x 1/4 inch over right side of scalp 1 inch behind injury No. 3 bone deep. (v) lacerated wound 144 inch x 1/2 inch x bone deep over right side of occipital region of scalp. (vi) incised wound 1 inch x 1/4 inch over right scapular region. (vii) abrasion 1 inch x 1/2 inch over left elbow. (viii) abrasion 1 inch x 1/2 inch over left side of upper part of iliac region on back. 9. P.W. 1 Chhota Singh, P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh and Pan Singh whochad also received injuries in the occurrence were medically examined in District Hospital, Fatehpur by P.W. 6 Dr. Abdul Rahman on the same day and who also prepared their injury reports Ext. Ka-13 to Ext. Ka-16. Injury reports of P.W. 1 Chhota Singh, P.W. 2 Hukum Singh P.W. 3 Fatehbahadur Singh and Pan Singh indicate following injuries on their person: Injuries of P.W. 1 Chhota Singh: (i) lacerated wound 4-1/2 cm. x 1 cm. x scalp deep on right side of head 5.5 cm. above the right ]ear. Bleeding present (ii) incised wound 3 cm. x l cm. x 1 cm. x scalp deep on right side of head 5.5 cm. above the right ]ear. Bleeding present (ii) incised wound 3 cm. x l cm. x scalp deep on left side of forehead 1.5 cm. above left eye brow directed oblique downwards, bleeding present. (iii) incised wound 2 cm. x 1/2 cm. x 1/4 cm. at outer and of right clavicle. Slight bleeding present. (iv) incised wound 3 cm. x 1/2 cm. x 1/4 cm. just below middle of left clavicle. Bleeding present. (v) stab wound 1.5 cm. x 1 cm. x under observation on upper part of left side of chest below outer end of clavicle. Bleeding present. Kept under observation and referred for X-ray. Margins inverted and clean cut. Six abrasion with contusions 12 cm. x 2.5 cm. on back of left scapular region oblique and medially downward red in colour. In the opinion of the doctor, all the; injuries were fresh and injury Nos. 1 to 4 were simple and were caused by some sharp edged weapon. Injury No. 5 was kept under observation and it could have been caused by some sharp pointed object. Injury No. 6 was simple and caused by spear. Injuries of Pan Singh: (i) lacerated wound 3 cm. x 1/2 cm. x 1/2 cm. on right side of top of head 9 cm. above right ear. Slight bleeding present. Obliquely downwards and forward. (ii) Contusion 4 cm. x 146 cm/outer side of back of left forearm. Red in colour. In the opinion of the doctor both the injuries were simple and fresh and were caused by some blunt object. Injuries of P.W. 3 Fatehbahadur Singh (i) lacerated wound 3 cm. x 1 cm. x 1 cm. on back of head 8 cm. above occipital 'prolobonis in midline. Bleeding slightly. (ii) incised wound 5.3 cm. x 1.3 cm. x muscle deep lateral side of dorsum of left metacarpal region. Margins clean cut laterally downwards. Bleeping present. (iii) incised wound 3 cm. x 1/2 cm. x skin deep on lateral side of left forearm just above left wrist. Margins clean cut. Bleeding present. In the opinion of the doctor all the injuries were simple and fresh. Injury Nos. 2 and 3 were caused by some sharp object and injury No. 1 was caused by some blunt object. Injuries of P.W. 2 Hukum Singh: (i) lacerated wound 3 cm. x 1/2 cm. Margins clean cut. Bleeding present. In the opinion of the doctor all the injuries were simple and fresh. Injury Nos. 2 and 3 were caused by some sharp object and injury No. 1 was caused by some blunt object. Injuries of P.W. 2 Hukum Singh: (i) lacerated wound 3 cm. x 1/2 cm. x 1/2 cm. on left side of back of head 5 cm. above occipital protuberance. Oblique downwards and medially. Bleeding present. In the opinion of the doctor, the injury was simple and fresh and caused by some blunt object. The medical examination of the above four injured persons was done on 1.8.1984 between 12:45 P.M. to 2:15 P.M. 10. Apart from the above four persons, Dharampal Singh A-4, Ajgar Singh (deceased A-5) from the defence side had also received injuries and their injury reports were brought on record and marked as Ext. Ka-17 to Ext. Ka-18. 11. The Investigating Officer after completing the investigation filed charge-sheet against all the accused-appellants before C.J.M., Fatehpur. The case of the accused was committed to the Court of Sessions Judge from where it was made over for trial to the Court of 5th Additional Sessions Judge, Fatehpur. 12. The prosecution in order to prove its case examined as many as six witnesses out of whom P.W. 1 Chhota Singh, P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh who had received injuries in the occurrence and P.W. 4 Brahmdin Dwivedi were examined as eye-witnesses of the occurrence while P.W. 5 Dr. Bharat Namdeo who had conducted the post-mortem on the body of deceased-Babu Singh, prepared and proved his post-mortem report Ext Ka-12 and P.W. 6 Dr. Abdul Rahman who had examined the injuries of P.W. 1 Chhota Singh, Pan Singh, P.W. 3 Fatehbahadur Singh and P.W. 2 Hukum Singh and Dharampal Singh A-4 and Ajgar Singh (deceased A-5) in this appeal, prepared and proved their injuries as Ext. Ka-13 to Ext. Ka-18 were produced as formal witnesses. 13. After the closure of the prosecution evidence, the statements of the accused were recorded under section 313 Cr.P.C. and all the incriminating facts and circumstances appearing against them in evidence were put to them. Ka-13 to Ext. Ka-18 were produced as formal witnesses. 13. After the closure of the prosecution evidence, the statements of the accused were recorded under section 313 Cr.P.C. and all the incriminating facts and circumstances appearing against them in evidence were put to them. Appellants purported to have admitted that accused Jaswant Singh (deceased A-1), Balwant Singh A-3 and Lal Singh A-2 were the real brothers and rest of the accused Ajgar Singh (deceased A-5) and Dharampal Singh A-4 were maternal uncles of the other three accused. They also admitted that deceased-Babu Singh, P.W. 2 Hukum Singh and P.W. 1 Chhota Singh were the real brothers and P.W. 3 Fatehbahadur Singh was the son of deceased-Babu Singh and that they were all residing in the same house and had a common mess. 14. The accused-appellants denied that the festival of guriya is celebrated at the tank and stated that it is celebrated in the abadi. They totally denied the statements made by the witnesses and alleged that the witnesses had given false evidence against them, a false report was lodged and a false charge-sheet was also filed against them. They admitted that Dharampal Singh A-4 and Ajgar Singh (deceased A-5) received injury during the same occurrence and they were implicated due to enmity. 15. Jaswant Singh (deceased A-1) denied his presence at the place of occurrence as well as in the village and stated that he was in village Basigawan at the door of Pan Singh. Lal Singh A-2 in addition stated that he had gone to save Balwant Singh A-3 whereupon Babu Singh etc. had beat him and in defence he had also retaliated. Balwant Singh A-3 repeated the same facts and further stated that the boys and girls of his house had gone to celebrate guriya festival and a quarrel ensued between the children of P.W. 3 Fatehbahadur Singh and his children. The children of his house beat P.W. 3 Fatehbahadur Singh. had beat him and in defence he had also retaliated. Balwant Singh A-3 repeated the same facts and further stated that the boys and girls of his house had gone to celebrate guriya festival and a quarrel ensued between the children of P.W. 3 Fatehbahadur Singh and his children. The children of his house beat P.W. 3 Fatehbahadur Singh. He reached there with his gun from the side of forest and intervened in the affair whereupon P.W. 3 Fatehbahadur Singh threatened him and went away on which he left for his house and when he reached near the Chabutara of Devi Ji, he saw Babu Singh, P.W. 1 Chhota Singh, P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh, Pan Singh and Man Singh, all armed with kanta, ballam, lathis and gun coming from the opposite direction. P.W. 2 Hukum Singh had a gun. P.W. 1 Chhota Singh assaulted Balwant Singh A-3 with a lathi blow which was shielded by him by his gun whereupon the barrel of the gun broke and fell down on the ground which was lifted by P.W. 1 Chhota Singh. Thereafter, all the aforesaid persons started beating him on which Balwant Singh A-3 went and brought lathi from the door of Hari Mohan and started shielding him and his companions. On an alarm raised by Balwant Singh A-3, Ajgar Singh (deceased A-5) and Lal Singh A-2 also arrived at the place of occurrence and made efforts to save him. He further stated that he had used force against the aforesaid persons in his defence and the occurrence was seen by Chheda Singh, Harpal Singh and Darshan Singh and from his side Dharampal Singh A-4, Ajgar Singh (deceased A-5), Lal Singh A-2 and he himself had received injuries, his report was not written at the police station and he was also not medically examined and only Dharampal Singh A-4 and Ajgar Singh (deceased A-5) were medically examined from his side. In the quarrel, between the boys, Ranno Devi, Durga Devi from his side and P.W. 3 Fatehbahadur Singh had received injuries. He further stated that the remaining part of the gun was deposited by him at the police outpost. Ajgar Singh (deceased A-5) also stated that he had gone to save Balwant Singh A-3 whereupon he was beaten "up by P.W. 1 Chhota Singh etc. and he had also assaulted the aggressors in defence. He further stated that the remaining part of the gun was deposited by him at the police outpost. Ajgar Singh (deceased A-5) also stated that he had gone to save Balwant Singh A-3 whereupon he was beaten "up by P.W. 1 Chhota Singh etc. and he had also assaulted the aggressors in defence. Similar facts were stated by Dharampal Singh A-4 also. 16. The accused-appellants filed a copy of a judgment and copy of the statement of Jaswant Singh (deceased A-1). Neither any witness was examined in defence nor any other documentary evidence was adduced by them. 17. The learned 5th Additional Sessions Judge Fatehpur after considering the submissions advanced before him by the learned Counsel for the parties and the evidence on record both oral as well as documentary, convicted all the five appellants and awarded aforesaid sentences to them. 18. Hence this appeal. 19. Learned Counsel for the appellants at the very outset stated that he neither disputes the time nor the participation of the appellants in the occurrence. He challenges the correctness of the place where the incident had taken place as per the deposition of the prosecution witnesses of fact produced during the trial and the manner of assault. He next submitted that although in the F.I.R. it was stated that the incident had taken place in the tank towards the south of the village while festival of guriya was being celebrated by the villagers who included the children of Jaswant Singh (deceased A-1) and P.W. 2 Hukum Singh but with the mala fide intention of suppressing the true genesis of the occurrence and to give the deceased and the other persons who had received injuries in the occurrence the colour of aggressors, the eye-witnesses of the occurrence examined during the trial very cleverly shifted the place of occurrence from the pond (tank) to the village abadi. He next submitted that even if the entire facts deposed by the four witnesses of fact during the trial and the evidence on record are accepted as gospel truth, the offence, if any, committed by the appellants does not travel beyond section 304, Part II I.P.C. There is absolutely nothing on record which may indicate that the incident was either pre-planned or premeditated and it is apparent from the peculiar facts and circumstances of this case that the occurrence was a result of sudden provocation in the heat of the moment in which both sides had received injuries and unfortunately one of the injured Babu Singh had died. Thus, the recorded conviction of the appellants under section 302 I.P.C. deserves to be converted to one under section 304, Part II I.P.C. and the sentence of imprisonment for life palliated to a lesser period of sentence and a fine of Rs. 5,000/- each. 20. He next submitted that on the perusal of the injury reports of the four persons who had received injuries from the side of the prosecution, the appellant's conviction recorded by the Trial Court under section 307/149 I.P.C. is liable to be converted to one under section 324/149 I.P.C. and the impugned judgment and order deserves to be modified accordingly. 21. Per contra Sri H.M.B. Sinha, learned A.G.A. I supporting the recorded conviction of the appellants and the sentence awarded to them, submitted that it is conclusively proved from the evidence on record that the appellants were the aggressors and had caused injuries to five persons from the prosecution's side one of whom Babu Singh died on the spot. No interference is required by this Court either with the recorded conviction or the sentences awarded to the appellants. This appeal lacks merit and is liable to be dismissed. 22. We have heard the learned Counsel for the parties very carefully and perused the entire Lower Court record. 23. Record shows that the written report of the incident Ext. Ka-1 was lodged by P.W. 2 Hukum Singh. The first information report' recitals are absolutely categorical. The incident had taken place at 8 A.M. at the pond situate in the south of village when the guriya festival was being celebrated by the villagers. Those celebrating the guriya festival included the children of P.W. 2 Hukum Singh (first informant) and Jas-want Singh (deceased A-1). The first information report' recitals are absolutely categorical. The incident had taken place at 8 A.M. at the pond situate in the south of village when the guriya festival was being celebrated by the villagers. Those celebrating the guriya festival included the children of P.W. 2 Hukum Singh (first informant) and Jas-want Singh (deceased A-1). The quarrel between the children let deceased-Babu Singh to intervene by remonstrating them, but in the meantime the appellants of whom Ajgar Singh (deceased A-5) was armed with lathi, Balwant Singh A-3 armed with pharsa, Lal Singh A-2 armed with tamancha and ballam and Jaswant Singh (deceased A-l) armed with pharsa ran towards Babu Singh brandishing their arms and exhorted each other to finish him. Dharampal Singh A-4 aimed a shot with his licensee gun at Babu Singh but the gun misfired and while he was reloading his gun the informant-P.W. 2 Hukum Singh and his companions snatched the gun of Balwant Singh A-3 from him in such a manner that the barrel of the gun in which one live cartridge was stuck was detached from the butt and came in the hands of the companions of the informant while the butt remained with Dharampal Singh A-4. The other accused allegedly started assaulting the informant and his companions with ballam, pharsa and lathi which resulted in the instantaneous death of Babu Singh. P.W. 1 Chhota Singh, P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh and Pan Singh received injuries. The occurrence was witnessed by Shiv Baran Singh, Prahlad Singh and Ram Saran Singh of village Dubepur. 24. It is noteworthy that none of the eye-witnesses produced by the prosecution during the trial have in their evidence have either corroborated the place of incident or the manner of assault as spelt out in the F.I.R. According to the F.I.R. the entire occurrence had taken place at the tank in the south of the village. However, P.W. 1 Chhota Singh in his statement stated that he, deceased-Babu Singh, P.W. 2 Hukum Singh and P.W. 3 Fatehbahadur Singh were the real brothers living in the same house having a common mess. The festival of guriya was being celebrated in his village since morning on the date of incident at the pond. However, P.W. 1 Chhota Singh in his statement stated that he, deceased-Babu Singh, P.W. 2 Hukum Singh and P.W. 3 Fatehbahadur Singh were the real brothers living in the same house having a common mess. The festival of guriya was being celebrated in his village since morning on the date of incident at the pond. The children between the age group of 9-10 years used to celebrate the festival of guriya at the tank and the children of above age group were not allowed to go there. The accused, Jaswant Singh (deceased A-1), Balwant Singh A-3 and Lal Singh A-2 were the real brothers while the accused, Dharampal Singh A-4 and Ajgar Singh (deceased A-5) were the maternal uncles of the other three accused. He further deposed that on the date of incident while he was sitting at his door in village Dubepur alongwith deceased-Babu Singh, P.W. 1 Chhota Singh, P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh son of Babu Singh and Pan Singh, a boy came to them and told that the children of Jaswant Singh's family were beating their children on which Babu Singh went towards the guriya talab empty handed. After 2-3 minutes of Babu Singh leaving, he, P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh and Pan Singh also left for the pond. When they reached near Shaukat Chauraha, they saw Babu Singh coming towards them from the side of guriya talab chased by Jaswant Singh (deceased A-1) and Balwant Singh A-3 both armed with pharsa, Lal Singh A-2 armed with bal-lam and tamancha, Ajay Singh armed with lathi and Dharampal Singh A-4 armed with gun and on the exhortation of Jaswant Singh (deceased A-1) to finish Babu Singh, Dharampal Singh A-4 fired at Babu Singh from his gun which misfired and while Dharampal Singh A-4 was reloading his the gun it was snatched by him and his companions from Dharampal Singh's hands A-4 and in the process the gun was broken into two pieces while the barrel, with a live cartridge stuck therein fell on the ground which was picked up by him while the remaining part of the gun (butt) was left in the hand of Dharampal Singh A-4. Rest of the accused also assaulted Babu Singh with their weapons while Dharampal Singh A-4 beat Babu Singh with the butt of the gun. Rest of the accused also assaulted Babu Singh with their weapons while Dharampal Singh A-4 beat Babu Singh with the butt of the gun. When he and his brothers tried to save their brother Babu Singh in the process P.W. 1 Chhota Singh, Hukum Singh, P.W. 3 Fatehbahadur Singh also received injuries. They had also wielded lathi blows by which Dharampal Singh A-4 and Ajgar Singh A-5 had received injuries while none of the other accused had received any kind of injury. The incident was witnessed by the injured-P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh, Shiv Baran Singh, Prahlad Singh and Ram Saran Singh who were present at the place of incident. As a result of the injuries received by Babu Singh, he died on the spot. On being challenged by the witnesses, the accused ran away. Thereafter, a bullock cart was arranged and all the injured and P.W. 2 Hukum Singh left for Bakewar police outpost on the bullock cart to lodge the report of the incident. On reaching Bakewar outpost the written report of the incident was scribed by Suraj Singh on the dictation of P.W. 2 Hukum Singh on which he had put his signature after the contents therein were read over to him. 25. The special feature of the testimony of P.W. 1 Chhota Singh is that although the F.I.R. did not contain any recital that while the informant and his brothers were sitting at the door of their house, a boy had come and informed them that the children of Jaswant-Singh (deceased A-1) were beating the children of their family on which Babu Singh had gone to the place where the festival of guriya was being celebrated with the object of pacifying the fighting of children and soon after P.W. 1 Chhota Singh, Hakim Singh, P.W. 2 Hukum Singh, P.W. 3 Fatehbahadur Singh and Pan Singh had also started walking towards gudiya talab and on reaching Shakti Chauraha, they saw their brother Babu Singh coming from the side of gudiya talab followed by the accused who were armed with lathi, ballam, bhala and gun. P.W. 1 Chhota Singh stated the aforesaid facts in his statement and thereby totally-changed the manner of assault as narrated in the F.I.R. as well-as the place of incident. 26. P.W. 1 Chhota Singh stated the aforesaid facts in his statement and thereby totally-changed the manner of assault as narrated in the F.I.R. as well-as the place of incident. 26. P.W. 1 Chhota Singh for the first time in his examination-in-chief stated that they had also wielded lathi blows to the accused in self defence and in which" Ajgar Singh (deceased A-5) and Dharampal Singh A-4 had received injuries. 27. The aforesaid facts deposed by P.W. 1 Chhota Singh in his examination-in-chief were conspicuous by their absence in the written report of the incident Ext. Ka-1 which was scribed on the dictation of P.W. 2 Hukum Singh. 28. P.W. 2 Hukum Singh and P.W. 3 Fatehbahadur Singh had also in their statements recorded during the trial corroborated the evidence of P.W. 1 Chhota Singh in all material particulars. The presence of these witnesses is admitted to Jaswant Singh (deceased A-l) in his statement recorded under section 313 Cr.P.C. but a careful perusal of their testimonies indicate that they had clearly deviated in their evidence from the prosecution case as spelt out in the F.I.R. While all the four witnesses of fact have stated in unison that guriya festival was being celebrated at the pond in the south of the village in which their children as well as the children of Jaswant Singh (deceased A-1) were also participating, a boy came to their house and informed them that their children were being beaten by the children of Jaswant Singh (deceased A-1) on which Babu Singh had gone to the pond to pacify the children. Soon after Babu Singh had left P.W. 2 Hukum Singh, P.W. 1 Chhota Singh and P.W. 3 Fatehbahadur Singh and other persons who had received injury in the occurrence also started walking towards the pond but when they reached near Shaukat Chauraha they noticed Babu Singh coming towards them chased by the appellants and thereafter on the exhortation of Jaswant Singh (deceased A-1) a brawl ensued near Shakti Chauraha in which the prosecution side also inflicted injuries at least on two of the accused namely Dharampal Singh A-4 and Ajgar Singh (deceased A-5) whose injury reports have been brought on record and proved as Ext. Ka-17 to Ext. Ka-18. Although in the F.I.R. it is stated that when the children of Jaswant Singh (deceased A-1) and those of the informant's family started fighting amongst each other. Ka-17 to Ext. Ka-18. Although in the F.I.R. it is stated that when the children of Jaswant Singh (deceased A-1) and those of the informant's family started fighting amongst each other. Babu Singh went to the spot to remonstrate them and in the meantime the accused-appellants armed with different weapons ran towards him exhorting each other to finish Babu Singh and by that time the informant and his other family members and other villagers had also reached the place of occurrence and in the skirmish that followed Babu Singh lost his life as a result of the injuries inflicted on him by the accused-appellants. The informant and his other brothers had also received injuries in the incident. As per the F.I.R. allegations, it appears that the incident had taken place at pond. There is no recital in the F.I.R. about the informant and the other injured were sitting at the door of their house alongwith Babu Singh who had gone to the place of occurrence on being informed about the quarrelling of the children of two families. The informant and his brothers also started walking towards the pond, they saw Babu Singh returning chased by the accused-appellants who were heavily armed. There is also no mention in the F.I.R. that the injuries had been inflicted by the prosecution side also on Dharampal Singh A-4 and Ajgar Singh (deceased A-5) respectively. 29. There is no whisper in the F.I.R. that the prosecution side also had lathis with which they claim that they had attacked the accused-appellants in self-defence. The injury report of Dharampal Singh A-4 Ext. Ka-17 indicates following injuries on his person: (i) lacerated wound (y shaped) 5 cm. x 1/2 cm. x scalp deep on occipital region 10 cm. from right ear. (ii) lacerated wound 1.5 cm. x 0.5 cm. x scalp deep on right side partial region 8 cm. from right ear. (iii) contusion 15 cm. x 1.5 cm. on right side back 7 cm. below right scapula. (iv) contusion 10 cm. x 1.5 cm. on right side back of 10 cm. below right scapula. 30. Ext. Ka-18 injury report of Ajgar Singh (deceased A-5) indicates following injures on his person: (i) lacerated wound 4 cm. x 0.5 cm. x scalp deep on middle part of head 11 cm. above right ear. (ii) lacerated wound 3 cm. x 0.5 cm. x 1.5 cm. on right side back of 10 cm. below right scapula. 30. Ext. Ka-18 injury report of Ajgar Singh (deceased A-5) indicates following injures on his person: (i) lacerated wound 4 cm. x 0.5 cm. x scalp deep on middle part of head 11 cm. above right ear. (ii) lacerated wound 3 cm. x 0.5 cm. x scalp deep on right side partial region 5 cm. above right ear. (iii) lacerated wound 1.5 cm. x 0.5 cm. x scalp deep on right side back just below right ear. (iv) contusion swelling 8 cm. x cm/on left dorsal side of left hand 5 cm. below left wrist. (v) contusion part in chest on back but no mark of injury. Although all the injuries in the opinion of doctor were simple in nature except injury No. 1 of Dharampal Singh A-4 which was a lacerated wound scalp deep was advised to be kept under observation but the fact that two persons from the side of the prosecution had also received injuries at the hands of the informant and the injured stands fully proved. 31. The next question which arises for our consideration in this appeal is that whether on the evidence on record, commission of offences by the appellants under sections 302/149 I.P.C. and 307/149 I.P.C. is proved or not? 32. Section 302 I.P.C. provides that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. 33. The expression 'culpable homicide' is defined under section 299 I.P.C. Section 299 I.P.C. to be reproduced herein below: 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. Exception 1 to Exception 5 of section 300 I.P.C. which define that when culpable homicide will not amount to murder, are being extracted herein below: Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- (First)-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. (Secondly)-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. (Thirdly)-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. 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. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 34. The instant case in our opinion falls under third exception to section 300 I.P.C. because in the present case, from the evidence adduced, it is not proved that the culpable homicide committed was premeditated. 34. The instant case in our opinion falls under third exception to section 300 I.P.C. because in the present case, from the evidence adduced, it is not proved that the culpable homicide committed was premeditated. The evidence on record fully proves that there was a sudden fight between the deceased and the 'injured over the beating of the children of informant's family by the children of Jaswant Singh (deceased A-l) while they were celebrating guriya festival together at the pond and in the heat of passion the incident took place. 35. It is true that in the incident from the side of the prosecution one person Babu Singh had died while four others, P.W. 1 Chhota Singh, Pan Singh, P.W. 2 Hukum Singh and P.W. 3 Fatehbahadur Singh had received simple injuries but at the same time from the side of the accused Dharampal Singh A-4 and Ajgar Singh (deceased A-5) had also received injuries. The injuries received by Dharampal Singh A-4 and Ajgar Singh (deceased A-5) were also found to be simple except injury No. 1 of Ajgar Singh (deceased A-5) which was advised to be X-rayed and kept un-tier observation but we do not find any supplementary report of Ajgar Singh (deceased A-5) on record. Further a perusal of the injury reports of P.W. 1 Chhota Singh, Pan Singh, P.W. 2 Hukuiri Singh and P.W. 3 Fatehbahadur Singh, it transpires that their injuries were also opined to be simple in nature. There is also no evidence on record which may indicate that the offenders had taken any undue advantage or acted in a cruel or unusual manner. We have no hesitation in holding that the recorded conviction of the surviving appellants namely Lal Singh, Balwant Singh and Dharampal Singh under section 302/149 I.P.C. also cannot be sustained. 36. Thus upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we hold that the recorded conviction of the surviving appellants Lal Singh, Balwant Singh and Dharampal Singh under sections 302/149 I.P.C. and 307/149 I.P.C. is liable to be altered to one under section 304, Part II I.P.C. and 324/149 I.P.C. 37. 36. Thus upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we hold that the recorded conviction of the surviving appellants Lal Singh, Balwant Singh and Dharampal Singh under sections 302/149 I.P.C. and 307/149 I.P.C. is liable to be altered to one under section 304, Part II I.P.C. and 324/149 I.P.C. 37. The sentence of life imprisonment awarded to the surviving appellants namely Lal Singh, Balwant Singh and Dharampal Singh on their conviction under section 302/149 I.P.C. and five years R.I. Under section 307/149 I.P.C. is palliated to two years R.I. and a fine of Rs. 10,000/- each under section 304, Part 11/149 I.P.C. and one year R.I. together with fine of Rs. 5,000/- each under section 323/149 I.P.C. 38. The appeal is allowed in part. The surviving appellants namely Lal Singh, Balwant Singh and Dharampal Singh are on bail. They shall be arrested and sent to jail for serving out the remaining part of their sentences. 39. The recorded conviction of the surviving appellants under sections 324/149 I.P.C. and 323/149 I.P.C. and the sentences awarded to them on their conviction under the aforesaid sections are affirmed. 40. The impugned judgment and order stands modified accordingly.