JUDGMENT : Pushpendra Singh Bhati, J. 1. The instant D.B. Criminal Appeal No.7/1995 has been preferred under Section 378 Cr.P.C. by the State claiming the following relief: “It is further prayed that appeal filed by the State-appellant may kindly be allowed, acquittal order passed by the learned trial court dated 3.3.94 may kindly be quashed and set aside and accused respondents be convicted and sentenced according to law.” 1.1. The D.B. Criminal Appeal No.305/1994 has been preferred under Section 374 Cr.P.C. by accused-Rai Singh claiming the following relief: “It is, therefore, respectfully prayed that this appeal may kindly be allowed and accused appellant may be acquitted under section 304-Part-II/34 IPC and he be set at liberty.” 2. Since both the instant criminal appeals arise out of the judgment of conviction and order of sentence dated 23.06.1994 passed by the learned Additional District & Sessions Judge, Banshwara (‘Trial Court’), in Sessions Case No. 297/1992 (State of Rajasthan Vs. Rai Singh and Ors.), therefore, the appeals have been heard together and are being decided by this common judgment. 2.1. Vide the impugned judgment of conviction and order of sentence, the accused were sentenced as below: Offence under Sections Sentence Fine 304 Part II r/w 34 IPC Five Years Imprisonment - Accused-respondent Indra Kunwar: Offence under Sections Sentence Fine 304 Part II r/w 34 IPC - - However, owing to her custody period of 02 years 08 months 01 day, as on the date of passing of the impugned judgment, she was released on the period already undergone by her as on the date of passing of the impugned judgment. Accused-respondent Narendra Singh: Offence under Sections Sentence Fine 304 Part II r/w 34 IPC - - However, owing to his age i.e. 16-17 years, at the time of incident in question, the said accused was ordered to be released while granting him the benefit of Section 4 of the Probation of Offenders Act, 1958, subject to the condition of execution of a personal bond in a sum of Rs.10,000/- and a surety of the like amount to the satisfaction of the learned Trial Court to ensure that the said accused would keep peace for a period of three years and would not indulged himself in any crime again. 3. 3. For the sake of brevity and convenience, the facts are being taken from above-numbered D.B. Criminal Appeal No.7/1995 filed by the appellant-State, while treating the same as a lead case. 4. As the record would reveal, on 22.10.1991 at around 2:30 p.m. one Kuriya (complainant) submitted a report (Ex.P/3) before the A.S.I. at Tamatiya Rathor stating that at around 9:00 a.m. on the said day, the complainant went to graze his cattle, and at that time, his brother was sitting under a Neem tree. As per the complainant, his field was adjacent to the fields of one Vijay Singh (deceased) and Raisingh. At the relevant time, the said Vijay Singh was ploughing his field; nearby the said field, accused persons, namely, Raisingh, Indrakunwar Singh and Narendra Singh were cutting Udad in their fields. 4.1. It was further stated in the report that Vijay Singh and accused-Raisingh had an enmity in connection with a certain land dispute, due to which accused persons, namely, Raisingh, Indrakunwar and Narendra Singh reached the field of Vijay Singh. At that time, accused-Raisingh and Indrakunwar were armed with swords and accused-Narendra Singh was carrying lathi; upon reaching the said field, the said three accused persons attacked Vijay Singh, as a result whereof, Vijay Singh fell on the ground; from the nearby field, Nihal Kunwar (wife of Vijay Singh) and Tarpat Singh (daughter of deceased) rushed to the rescue of Vijay Singh, whereupon the said accused persons gave beatings also to the persons who came to the rescue of Vijay Singh. 4.2. At that time, accused Raisingh and Indra Kunwar kept sitting armed with the swords at the place of the incident, creating a threatening situation, owing to which, despite several persons witnessing the said incident, could not come to rescue the persons who were subjected to beatings at the hands of the accused persons. 4.3. As a result of the said incident, Vijay Singh sustained injuries on his right hand and left leg. Tarpat Kunwar also sustained sword injuries and the injuries were also caused to Nihal Kunwar. 4.4. On the basis of the aforesaid information, a case was registered by the police for the offences under Sections 326 & 307 IPC, whereafter, upon death of Vijay Singh, offence under Section 302 IPC was added. 4.5. Tarpat Kunwar also sustained sword injuries and the injuries were also caused to Nihal Kunwar. 4.4. On the basis of the aforesaid information, a case was registered by the police for the offences under Sections 326 & 307 IPC, whereafter, upon death of Vijay Singh, offence under Section 302 IPC was added. 4.5. After investigation, the concerned police authority of Police Station, Garhi, submitted a charge-sheet against the accused persons under Sections 302, 324 & 326/34 IPC. Thereafter, owing to the nature of crime involved and the case pertaining to Sessions Trial, the concerned Magistrate, committed the same, and the trial accordingly commenced before the learned Trial Court. 4.6. The learned Trial Court framed the charges against accused persons under Sections 302, 307 & 447 read with Section 34 IPC; the said charges were read over to the accused persons, which they denied and claimed to stand due trial and the trial accordingly commenced thereafter. 4.7. During the course of trial, the evidence of 15 prosecution witnesses were recorded and 29 documents were exhibited on behalf of the prosecution; in defence, 05 documents were exhibited, whereafter, the accused persons were examined under Section 313 Cr.P.C., in which they pleaded innocence and their false implication in the criminal case in question. 4.8. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused persons, as above, vide the impugned judgment of conviction and order of sentence dated 23.06.1994, against which the present appeals have been preferred by the State as well as accused-Raisingh, respectively. 5. As regards both the instant appeals, the learned Public Prosecutor appearing for the appellant-State submitted that the injured eye-witnesses of the incident in question fully supported the prosecution story, despite the same, the learned Trial Court has not convicted the accused persons under Section 302 IPC. 5.1. It was further submitted that the accused-respondents, at the relevant time, were armed with the swords and lathi respectively and caused grievous injuries to the vital party of the deceased’s body, and also caused injures to the family members of the deceased i.e PW.2 and PW.3 (eye witnesses). It was also submitted that the accused-respondents caused a total of 9 injuries to the deceased, which were sufficient to caused his death. 5.2. It was also submitted that the accused-respondents caused a total of 9 injuries to the deceased, which were sufficient to caused his death. 5.2. It was further submitted that the weapon of crime i.e the sword was recovered by the concerned investigating officer (PW.13) on the basis of the information given by the accused-respondents. It was also submitted that the accused-respondents did not furnish any explanation in that regard at time of their examination under Section 313 Cr.P.C. 5.3. It was further submitted that the accused-respondents, in support of their case, relied upon the self defence theory during the trial, but the said did not hold good, specially looking into the gravity of the offence i.e. the brutal murder of the deceased by use of the sharp weapon i.e. sword. 5.4. It was also submitted that PW. 5 was also produced as an eye-witness to the incident in question, but despite the same, the learned Trial Court did not pass the judgment convicting the accused-respondents under Section 302 IPC. It was further submitted that the accused-respondents and the deceased were having prior enmity in connection with the land dispute, and therefore, the accused-respondents were having a clear motive to commit the crime in question, and thus, on this count alone, they were liable to be convicted under Section 302 IPC. 5.5. In support of such submissions, learned Public Prosecutor relied upon the following judgments:- (a) Nand Kishore Vs. State of M.P. (2011) 12 SCC 120 and (b) Bakhtawar & Anr. Vs. State of Haryana (1979) 4 SCC 698 6. On the other hand, the learned counsel for the accused-respondents, while opposing the submissions made by the learned Public Prosecutor on behalf of the appellant-State, submitted that the deceased’s family attacked the accused-respondents, and therefore, the entire action of the accused-respondents was taken by them as an act of self defence, but the learned Trial Court instead of acquitting them in toto, passed the impugned judgment of conviction. 6.1. It was further submitted that the person who lodged the FIR i.e. PW.1- Kuriya had turned hostile during the trial, and therefore, the very basis of the prosecution case as to how the incident in question has commenced is not known, which is clearly fatal to the prosecution case. 6.2. 6.1. It was further submitted that the person who lodged the FIR i.e. PW.1- Kuriya had turned hostile during the trial, and therefore, the very basis of the prosecution case as to how the incident in question has commenced is not known, which is clearly fatal to the prosecution case. 6.2. It was also submitted that the similar sentence as awarded to accused-Rai Singh under Section 304 Part II IPC i.e. imprisonment for a period of 5 years, was awarded to accused-Indra Kunwar also, but she was ordered to be released on the period already undergone by her i.e. custody of 2 years 8 months 1 day; while accused-Rai Singh, who as on the date of passing of the impugned judgment had also undergone the same custody period, was not meted out the same treatment and was not ordered to be released accordingly, vide the impugned judgment, which is clearly unjustified in law. 6.3. It was further submitted that looking into the circumstances of the case, the accused-respondents’ conviction under Sections 304 Part II r/w 34 IPC deserves to be quashed and set aside and accused-respondents deserve to be acquitted the said offence. 6.4. It was also submitted that the custody period of accused-Raisingh was 02 years 08 months 01 day as on the date of passing of the impugned judgment, whereafter vide order dated 01.07.1994 passed in S.B. Cr. Misc. Bail (Suspension) of Sentence No.318/1994, the sentence awarded to him was suspended by this Hon’ble Court, and thus, his total custody period was 02 years 08 months 09 days. 7. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 8. This Court observes that the in present case, the complainant-Kuriya (PW.1) was an eye-witness of the incident, but had turned hostile during the trial. 8.1. This Court further observes that though the name of PW.5-Kailash Kanwar was not mentioned in the FIR, but she was produced as an eye-witness and in this regard, the learned Trial Court in the impugned judgment clearly mentioned that since she, at the relevant time, was not present at the place of incident in question, therefore, her testimony was not worth believing. 8.2. 8.2. This Court also observes that the next eye-witnesses were PW.2-Nihal Kanwar (wife of deceased) and PW.3- Tarpat Kanwar (daughter of deceased); their versions of the story were in clear contradictions with the contents of the FIR (EX.P/1) and the said eye witnesses made their versions while exaggerating the alleged role of the accused-respondents in commission of the crime in question. 8.3. This Court further observes that in the FIR, it was stated that the accused-respondents, armed with swords and lathis attacked the deceased at his field, and thereafter, took away the deceased to accused-respondent-Rai Singh’s field; but as per PW.2 and PW.3, the accused-respondents burnt the legs at the deceased and thereafter, the accused-respondents attacked PW.3 at her place, which shows that PW.2 and PW.3 exaggerated the narration of the incident in question. 9. This Court also observes that PW.6- Gangaram, PW.7- Kachra were motbirs of recovery of clothes, but had turned hostile during the trial; PW.8- Ishwar also, who was the motbir of recovery of the weapons i.e sword and lathi, had turned hostile during the trial. 10. This Court further observes that as per the record, the entire incident had happened, while the deceased was going to the fields of the accused-respondents and the same was also recorded by the learned Trial Court, and reflected in Ex.P/4 marked as “B” place which was the accused-respondent-Raisingh’s field and the blood was also recovered from the said field and marked as Ex.P/5. 11. This Court also observes that the fight had occurred between the deceased’s family and the accused-respondents, which clearly shows that the accused-respondents have also suffered injuries and the same was also supported by PW.12-Dr. Vijay Kumar. Thus, it is clear that during the fight, Vijay Singh (deceased), PW.2, PW.3 and the accused-respondents have sustained injuries. 12. This Court further observes that even if there may be contradictions in the prosecution version, then also it is apparent on the face of the record that the injuries were caused to both the sides, during the incident in question, and therefore, it cannot be said that the prosecution has completely failed to establish its case against the accused-respondents. 12.1. This Court further observes that even if there may be contradictions in the prosecution version, then also it is apparent on the face of the record that the injuries were caused to both the sides, during the incident in question, and therefore, it cannot be said that the prosecution has completely failed to establish its case against the accused-respondents. 12.1. This Court further observes that the entire incident had been happened without any intention, and thus, in the given circumstances, it was not a murder, rather the same was a culpable homicide, as it was committed without any premeditation and had happened in the heat of passion upon a sudden quarrel, and therefore, the crime in question does not fall under Section 302 IPC, instead the same falls under Section 304 Part II IPC, being culpable homicide instead of murder, and thus, the learned Trial Court was justified in passing impugned judgment of conviction Section 304 Part II IPC. 13. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Apex Court in the case of State of M.P. v. Udham, (2019) 10 SCC 300 , as hereunder:- “12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list). 13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.” 13.1. This Court is conscious of the judgment rendred by the Hon’ble Apex Court in case of Hussainbhai Asgarali Lokhandwala Vs. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.” 13.1. This Court is conscious of the judgment rendred by the Hon’ble Apex Court in case of Hussainbhai Asgarali Lokhandwala Vs. State of Gujarat (Criminal Appeal No. 1691/2023, decided on 14.08.2024), relevant portion of the said case is reproduced hereunder:- 24. We are in agreement with the view taken by the High Court that the entire incident had occurred in the heat of the moment and that neither party could control their anger which ultimately resulted into the fateful incident. 25. That being the position and since the High Court had brought down the charge from Section 304 Part I IPC to Section 304 II IPC, we feel that it would be in the interest of justice if the sentence of the appellant Hussainbhai Asgarali Lokhandwala is further modified to the period of incarceration already undergone by him while maintaining the conviction. 26. Much water has flown down the river by this time. The unfortunate incident leading to the loss of a precious life and sustaining of injuries by a couple of others had happened in a spur of the moment. Therefore, while concurring with the impugned judgment of the High Court dated 06.05.2016 insofar alteration of the conviction is concerned, we are of the view that the sentence imposed upon the appellant should be altered to the period of incarceration already undergone by him. That being the position, it is not necessary to delve into and elaborate upon the other contentions raised at the Bar. 27. Consequently, Criminal Appeal No. 1691 of 2023 is partly allowed. While maintaining the conviction of the appellant Hussainbhai Asgarali Lokhandwala under Section 304 Part II IPC, his sentence is modified to the period already undergone by him. All the other criminal appeals are, however, dismissed. 13.2. This Court is also conscious of the judgment rendered by the Hon’ble Apex Court in case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329 , relevant portion of the said judgment is reproduced hereunder:- “7. All the other criminal appeals are, however, dismissed. 13.2. This Court is also conscious of the judgment rendered by the Hon’ble Apex Court in case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329 , relevant portion of the said judgment is reproduced hereunder:- “7. This Court in [Dhirendra Kumar v. State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following: (a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of body; (e) The amount of the force used. (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation. (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.” 14. This Court observes that the accused-respondent- Narendra Singh, as on the date of incident in question, was aged 16-17 years, and therefore, the learned Trial Court convicted him under Sections 304 Part II/34 IPC while giving the benefit of Section 4 of the Probation of Offender Act, 1958 with the condition as mentioned above, and rightly so, in the given circumstances. 14.1. Accused-respondent-Indra Kunwar was convicted under Sections 304 Part II/34 IPC and as on the date of passing of the impugned judgment, she had already undergone custody period of 2 years, 8 months and 1 day, and therefore, she was ordered to be released on the period of custody already undergone by her, which in the given circumstances, was justified. 14.2. Accused-respondent-Raisingh was convicted under Sections 304 Part II r/w 34 IPC and sentenced to undergo imprisonment for a period of 5 years. This Court observes that accused-respondent-Raisingh has already undergone the custody for a total period of 02 years 08 months 09 days. 15. Thus, this Court, while taking into consideration the overall facts and circumstances of the present case, including the evidence as well as precedent laws etc., decides both the instant appeals in the following manner: 15.1. This Court observes that accused-respondent-Raisingh has already undergone the custody for a total period of 02 years 08 months 09 days. 15. Thus, this Court, while taking into consideration the overall facts and circumstances of the present case, including the evidence as well as precedent laws etc., decides both the instant appeals in the following manner: 15.1. Consequently, D.B. Criminal Appeal No. 7/1995 preferred by appellant-State is dismissed. 15.2 Consequently, D.B. Criminal Appeal No. 305/1994 preferred by the accused-Raisingh is partly allowed. Accordingly, while maintaining the conviction of the accused-Rai Singh under Sections 304 Part II r/w 34 IPC as above, the sentence awarded to accused-Raisingh in the present case is reduced to the period already undergone by him till now. Accused-Rai Singh is on bail. He need not surrender. His bail bonds stand discharged accordingly. 15.3. Keeping in view the provision of Section 437-A Cr.P.C., accused-appellant Raisingh is directed to furnish a personal bond in a sum of Rs.25,000/- and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, accused-appellant Raisingh, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court as soon as he would be called upon to do so. 15.4. The record of the learned Trial Court be sent back forthwith. All pending applications stand disposed of.