JUDGMENT : PANKAJ BHANDARI, J. 1. Appellants-Ashok Chaudhary and Shankar Singh have preferred D.B. Criminal Appeal No. 1182/2016 and Raju and Mahendra have preferred D.B. Criminal Appeal No. 1119/2016 aggrieved by the judgment and sentence dated 27.09.2016 passed by the learned Additional Sessions Judge No. 4, Ajmer, whereby the appellants have been convicted and sentenced as hereunder: (i) For offence under Section 302/34 of Indian Penal Code (for short “IPC”) - life imprisonment with a fine of Rs.5,000/- each and in default of payment of fine, to further undergo 2 months simple imprisonment. (ii) For offence under Section 323/34 IPC - 6 months simple imprisonment with a fine of Rs.500/- each and in default of payment of fine, to further undergo 1 month simple imprisonment. (iii) For offence under Section 324/34 IPC - 1 year simple imprisonment with a fine of Rs.500/- each and in default of payment of fine, to further undergo 1 month simple imprisonment each. 2. Succinctly stated the facts of the case are that on 22.04.2011, Sualal (PW-2) along with his family members, namely, Heera, Devkaran and Mitthanlal lodged a written report (Exhibit-P/1) at Police Station Mangaliyawas, District Ajmer, wherein it was alleged that he is a resident of Village Liddi. There was a function of Jamna of Manju daughter of Ramdev, therefore, her in-laws Ashok, Shankar and 2-3 other family members came. Likewise on account of function of Muklawa of Ramdev’s other daughter-Sheela, her husband Shivraj and 4-5 other family members of Gaderi Village came and after taking food, they went to sleep at the roof of his house. It is stated in the report that on account of some hot arguments, they started quarreling. Ashok, Shankar and 4-5 of their family members started pelting stones on them. Ashok and Shankar also took belts from their waist and gave beating, upon which, he received injury on his head. Shankar and Ashok also asked him as to why did they speak between them. On hearing hue and cry, Chhotuji, Bhanwarlal, Jagdish, Sanwarlal and Surajkaran intervened. It is also stated that those, who quarreled, ran away. 3. On receipt of the said report, the police registered FIR bearing No. 68/2011 (Exhibit-P2) for offence under Sections 143, 341, 323 and 336 IPC. On hearing hue and cry, Chhotuji, Bhanwarlal, Jagdish, Sanwarlal and Surajkaran intervened. It is also stated that those, who quarreled, ran away. 3. On receipt of the said report, the police registered FIR bearing No. 68/2011 (Exhibit-P2) for offence under Sections 143, 341, 323 and 336 IPC. Sualal received 3 simple injuries by blunt weapon (Exhibit-P4); Heera received 1 sharp and 3 simple injuries (Exhibit-P5); Smt. Manju received 1 simple injury by blunt weapon (Exhibit-P50); Jagdish received 3 simple injuries by blunt weapon (Exhibit-P51); Devkaran received 3 simple injuries by blunt weapon (Exhibit-P49) and Mitthanlal received 5 simple injuries by blunt weapon (Exhibit-P11). Jagdish expired on 23.04.2011. As per the postmortem report dated 24.04.2011 (Exhibit-P31), cause of death was septicemic shock as a result of antemortem injury to intestine caused by blunt force. The case was, therefore, converted to Section 302 IPC. The police after completion of the investigation filed challan for the offence under Sections 323, 324, 336 & 302/34 IPC against the accused appellants. After hearing the arguments on charge, learned Trial Court framed charges for offence under Sections 323, 336, 324 and 302/34 IPC. The accused denied the charges and sought trial. As many as 26 witnesses were examined; 53 documents were exhibited and Article-1 to Article-3 were also exhibited on behalf of the prosecution. Explanation of the accused appellants were recorded under Section 313 Cr.P.C. In defence, statement of Kanaram (DW-1) was recorded and Exhibit-D1 to Exhibit-D5 were exhibited. The learned Trial Court after hearing the arguments, convicted and sentenced the accused appellants as stated herein-above, aggrieved by which, the present appeals have been filed before this Court. 4. It is contended by the learned counsel for the appellants that all the persons assembled due to some family function. There was no prior enmity between the parties and the dispute took place on the spur of the moment. None of the accused appellants were armed and it was only a free fight, which started between the parties. As per the FIR also, all the persons sustained simple injuries and therefore, the FIR was registered under Sections 143, 341, 323 and 336 IPC. It is also contended that the deceased also sustained simple injuries, but he died as he had septic as he was earlier operated. As per the FIR also, all the persons sustained simple injuries and therefore, the FIR was registered under Sections 143, 341, 323 and 336 IPC. It is also contended that the deceased also sustained simple injuries, but he died as he had septic as he was earlier operated. It is argued that the accused could not have been convicted with the aid of Section 34 IPC as they were not having any common intention. 5. It is contended by the learned counsel for the accused appellants that the incident took place on the spur of the moment and there was no intention to cause death and therefore, Section 300(3) & 304 Part-II of IPC are not attracted and the accused at most can be convicted for causing simple hurt punishable under Section 323 of IPC. Learned counsel for the appellants has placed reliance on State of Karnataka vs. Shivlingaiah, AIR 1988 SC 115 . Reliance has also been placed on Rupinder Singh Sandhu vs. State of Punjab and Others, AIR 2018 SC 2395 , wherein the deceased died due to cardiac arrest after he received a fist blow from the accused. The Apex Court convicted the accused for offence under Section 323 of IPC. Reliance is also placed on In Re: Marana Goundan Prisoner, AIR 1941 Madras 560, wherein accused was kicked in the abdomen. The Madras High Court has held that the conviction under Section 304 Part-II of IPC was unsustainable and at most, the conviction can only be sustained under Section 323 of IPC. 6. Learned Additional Government Advocate has opposed the appeals. 7. We have considered the arguments and have carefully perused the record. 8. The written report (Exhibit-P1) lodged by the complainants - Sualal, Devkaran, Mitthanlal and Heera Lal, was signed by them. Heera Lal has been examined as PW-3, Devkaran has been examined as PW-1, Sualal has been examined as PW-2 and Mitthanlal has been examined as PW-7. The statements of these witnesses are relevant for arriving at a just decision. It is to be noted that Manju (PW-6) & Mitthanlal (PW-7) has turned hostile. Devkaran (PW-1) has deposed that Ashok, Shankar, Raju and Mahendra were beating deceased-Jagdish with lathi and fist at his stomach. Shankar and Ashok gave a blow on his head also. The statements of these witnesses are relevant for arriving at a just decision. It is to be noted that Manju (PW-6) & Mitthanlal (PW-7) has turned hostile. Devkaran (PW-1) has deposed that Ashok, Shankar, Raju and Mahendra were beating deceased-Jagdish with lathi and fist at his stomach. Shankar and Ashok gave a blow on his head also. In the cross-examination, this witness has stated that he does not know Raju and Mahendra, however, later on, he has stated that he knows Raju and Mahendra. Sualal (PW-2) has deposed that Ashok and Shankar gave beating to deceased-Jagdish in his stomach, as a result of which, he died. In the cross-examination, this witness has stated that in the written report (Exhibit-P1), he had named the persons who gave beating and only those who were named in the report, gave beating and no one else. Heera Lal (PW-3) also stated that Shankar and Ashok had a fight with Jagdish and the injured. 9. From the above statements, it is evident that allegations of beating deceased - Jagdish is on Shankar and Ashok. The fact that deceased-Jagdish was earlier operated is evident from the statement of Dr. Sumer Singh (PW-20), who has stated that on the stomach of the deceased, there was a 19 cm mark in the mid line, which was due to operation. He has mentioned that the deceased was earlier operated for eliyan i.e. part of the intestine. In the cross-examination, this witness has admitted that due to certain ailment of the intestine, there is possibility of gangrene. Dr. Pradeep Yadav (PW-26) has given details about the injuries sustained by deceased - Jagdish. He has mentioned that all the injuries were simple in nature caused by blunt object. In the cross-examination also, this witness has stated that all the injuries sustained by Jagdish were simple in nature and were not dangerous to life. 10. From perusal of the entire evidence available on record, it is evident that the dispute took place on the spur of the moment. All the relatives have assembled for a function and there was no premeditation; there was no intention to cause death; there was no knowledge that hitting by fist on the stomach would result in death and at the most, all the accused can be held responsible for offence under Section 323 of IPC. All the relatives have assembled for a function and there was no premeditation; there was no intention to cause death; there was no knowledge that hitting by fist on the stomach would result in death and at the most, all the accused can be held responsible for offence under Section 323 of IPC. In Rupinder Singh Sandhu (supra) where deceased died due to fist blow, Apex Court convicted the accused for offence under Section 323 IPC. We are of the considered view that the learned Trial Court has clearly erred in convicting all the accused appellants under Sections 302/34 of IPC and conviction under Section 302/34 of IPC deserves to be set aside. Considering the same and the judgments relied upon by learned counsel for the accused appellants, the conviction under Section 302/34 of IPC is, accordingly, set aside. 11. As far as conviction under Sections 323/34 & 324/34 of IPC is concerned, all the witnesses have stated that the accused gave beating and injured-Sualal received 3 simple blunt injuries, Heera Lal received 1 sharp and 3 simple injuries, Manju received 1 simple injury by blunt weapon, Jagdish and Devkaran received 3 simple injuries and Mitthanlal received 5 simple injuries, hence, all the accused are liable to be convicted under Sections 323/34 and 324/34 of IPC. The conviction and sentence under Sections 323/34 & 324/34 of IPC deserves to be upheld and the same is, accordingly, upheld. 12. Consequently, both the appeals are partly allowed. Conviction of the appellants under Section 302/34 of IPC is quashed and set aside, however, conviction and sentence under Sections 323/34 & 324/34 of IPC is upheld. The impugned judgment and sentence dated 27.09.2016 is modified to the above extent. 13. Accused appellants, namely, Raju and Mahendra are on bail, their bail bonds submitted earlier be treated cancelled. 14. Appellants are directed to furnish personal bond in the sum of Rs.50,000/- each and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Hon’ble Apex Court. The bail bond will be effective for a period of six months. 15. The bail bond will be effective for a period of six months. 15. Record of the learned Trial Court be sent forthwith.