JUDGMENT : 1. Appellants have faced trial in FIR No. 81 dated 23.7.2013 registered at Police Station Mehandipur Balaji, Dausa under Sections 143, 342, 323 and 302 Indian Penal Code, 1860. 2. Prosecution story, in brief, as per FIR was that on 22.7.2013 at about 6:00 PM, complainant Baliram was returning home. On the way, Mahendra who was also coming was picked up by Nandkishor @ Gurji, Harkesh, Pintu, Goti, Pinky, Saroj, Kedar, Kadi, Deviram and Yadram and after taking him to a room they inflicted injuries to him. They were already having a land dispute. Injured was removed to the hospital for treatment. However, Mahendra succumbed to his injuries. 3. After completion of investigation and necessary formalities, challan was presented against appellants Nand Kishore @ Gurji, Harkesh, Yogesh @ Pintu and Kedar Meena. Charges were framed against the appellants under Sections 342, 302, 302/34 IPC. Appellants did not plead guilty to the charges framed against them and claimed trial. During trial prosecution examined twenty witnesses. 4. Appellants when examined under Section 313 Code of Criminal Procedure, 1973, after close of prosecution evidence, prayed that they were innocent and had been falsely involved in the case. It was pleaded that Mahendra indulged in theft of electricity. He had climbed over the electricity pole and had fallen from the pole, which had resulted in his death. Deceased was habitual offender and many cases were pending against him. 5. Appellants examined one witness in their defence. 6. Learned counsel for the appellants has submitted that appellants have been falsely involved in this case. In-fact, deceased had died as he had fallen from the pole while committing theft of electricity. No reliance could be placed on the testimony of the alleged eyewitnesses. As per the medical evidence on record, deceased could have been saved in case he had been taken to Dausa for treatment. 7. Learned State Counsel as well as learned counsel for the complainant have opposed the appeal and have submitted that appellants in connivance with each other had inflicted serious injuries on the person of the deceased, which had resulted in his death. Prosecution had been successful in proving its case. 8. Present case relates to murder of Mahendra. Case rests on eyewitness account. 9. Prosecution had been successful in proving its case. 8. Present case relates to murder of Mahendra. Case rests on eyewitness account. 9. Kumari Lotanta P.W.7 deposed that the deceased was her brother and on the day of incident at about 6:00 PM, she was filling up water from the hand pump. Her brother was picked up by Nandkishor, Harkesh, Pintu, Kedar, Yadram and Deviram. Ladies of their (accused) house were also present there. Mahendra was taken inside the room and he was inflicted injuries with sticks. 10. Statement of Kumari Lotanta P.W.7 with regard to participation of appellants in the crime was corroborated by Santosh P.W.2, Banwari Lal P.W.3, Baliram P.W.6 and Ramesh P.W.8. 11. Ramdayal D.W.1 deposed that on the day of incident Mahendra had fallen from the electricity pole. However, in his cross-examination he deposed that his statement had never been recorded by the police nor he had ever made a complaint to higher authorities with regard to his non-recording of the statement. 12. Statements of the eyewitnesses with regard to the fact that the appellants had inflicted injuries to the deceased could not be shaken during their cross-examination. It is also case of the prosecution that some land dispute was already pending between the parties. 13. During investigation of the case, sticks were recovered from the appellants on the basis of their disclosure statement. Statements of the eyewitnesses with regard to the involvement of appellants in the crime inspires confidence. 14. Statement of D.W.1 fails to rebut the testimony of eyewitness with regard to involvement of appellants in the crime. 15. Dr. Sugan Lal P.W.5 deposed that on 23.7.2013 he had conducted Post Mortem Examination on the dead body of the deceased and proved report Exhibit-P/5. As per Post Mortem Examination Report Exhibit-P/5, deceased had suffered following injuries:- “1. Lacerated wound 6x3x2 (bone deep), fracture temporal bone, linear, haematoma both external and internal, grievous, blunt. 2. Lacerated wound, 3x2x1, occipital region, grievous, blunt. 3. Bruise, right hand, fracture right humerus bone. 4. Bruise, right leg, fracture tibia-fibula. 5. Bruise, Left hand, fracture radius-ulna. 6. Bony, fracture of mandibular bone.” 16. Cause of death of deceased was head injury which led to hemorrhagic shock and death. Injury no.1 was grievous, which was sufficient to cause death in ordinary course of life. 17. 3. Bruise, right hand, fracture right humerus bone. 4. Bruise, right leg, fracture tibia-fibula. 5. Bruise, Left hand, fracture radius-ulna. 6. Bony, fracture of mandibular bone.” 16. Cause of death of deceased was head injury which led to hemorrhagic shock and death. Injury no.1 was grievous, which was sufficient to cause death in ordinary course of life. 17. The question that arises for consideration is as to whether the present case would fall within the ambit of Section 302 or 304 IPC. As is evident from the medical evidence, deceased had suffered various fractures. Dr. Sugan Lal P.W.5 in his cross-examination deposed that he had advised complainant party to remove the injured Mahendra to Dausa hospital for treatment. However, the complainant party did not take the injured to hospital at Dausa. In-case, injured had been removed to Dausa hospital for treatment, his life would have been saved. Since, the injured did not get proper treatment and due to this reason he had died. 18. Thus, from the medical evidence it transpires that in-case deceased had been taken for treatment to Dausa hospital, his life would have been saved. 19. Hence, keeping in view the totality of ocular and medical evidence on record, we are of the opinion that the appellants did not have the intention to commit the murder of the deceased but had the intention to inflict injuries on his person, which were likely to cause death. Hence, we are of the considered opinion that the present case would not fall within the ambit of Section 302 IPC but would fall within the ambit of Section 304-I IPC. 20. Accordingly, the conviction and sentence of the appellants as ordered by the trial court under Section 302 read with Section 34 IPC is set aside and appellants are held guilty of commission of offence under Section 304-I IPC and are convicted thereunder. Appellants are sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 50,000/- each, and in default of payment of fine, appellants shall further undergo rigorous imprisonment for one year. The conviction and sentence of the appellants as ordered by the trial court under Section 342 IPC is maintained. 21. Appeal stands disposed of, accordingly.