JUDGMENT

Deepak Verma, J. —

1. Leave granted.

2. The perennial question whether accused deserve to be convicted under Section 302 of the Indian Penal Code (hereinafter shall be referred as ‘I.P.C.’) as held by the trial court and upheld by the High Court or whether the conviction should be converted under Section 304 of the I.P.C, has once again cropped up for consideration before us, in this Appeal.

3. In the instant case, eight accused were charged and prosecuted for commission of offences under Section 147, 148, 302 or 302/149 and 325 of the IPC. After trial, giving benefit of doubt, Suresh and Badelal - accused nos.6 & 7 respectively, were acquitted by Additional Sessions Judge, Gadarwara, Narsingpur in Sessions Case No. 21/93 vide its Judgment and Order dated 21.4.1994. Six convicted accused preferred Criminal Appeal No. 472 of 1994 in the High Court of Madhya Pradesh at Jabalpur. During the pendency of the appeal, Accused No. 3 - Rewaram and Accused No. 4 - Lakhan Lal died. Thus, appeal in respect of these two accused stood abated. However, as regards the remaining four accused, the High Court upheld the conviction and sentence awarded by the Trial Court. Now, in this appeal, it is prayed before us to consider, in the peculiar facts and circumstances of this case, whether, the four surviving convicted Appellants Veeran, Onkar, Ganesh and Ashok deserve to be convicted under Section 302/149, 147 and 148 of the IPC, who have been awarded life imprisonment and one year each respectively for the commission of the aforesaid offences or it deserves to be converted under Section 304 of the IPC.

4. Prosecution story in nutshell is as under :

It is said, PW-6 Mayabai, real sister of deceased Daddu had become pregnant on account of accused Onkar and Ganesh. Panchayat was called to resolve the dispute. Panchayat passed a resolution to outcaste deceased Daddu, PW-6 Mayabai and their family members. On account of this, they were in inimical terms. On 4.11.1992, Radhelal, uncle of deceased Daddu, was not in his house. Deceased Daddu, and Narmada @ Narbadi were required to sleep at Radhelal’s house and hence were proceeding towards his house at about 8:00 p.m for this purpose. Narmada @ Narbadi was brother-in-law of deceased Daddu. When they reached the house of Radhelal, wives of accused Veeran, Onkar and Rewaram started abusing them saying that these persons had lost their reputation because of the misconduct committed by PW-6 - Mayabai, sister of deceased Daddu, after which Daddu (deceased) asked the ladies not to abuse them. At that time accused Veeran, Onkar and Rewaram came out from their house but went back to their respective houses. However, before leaving they challenged deceased Daddu, to come out of the house. Daddu came out of his house and at that point of time, accused Lakhan, Ashok and Ganesh also came to the spot armed with Gandasa, Farsa and Lathis. etc. All of them told Daddu that he was crossing all limits and he should behave in proper and orderly manner. After some altercation, they started beating Daddu (deceased) with the weapons they were carrying.

5. It is said that Veeran caused injuries on the head of Daddu. On account of injuries sustained by Daddu, he fell down. Even though, Narmada @ Narbadi raised protest but they did not stop. Mayabai - PW6, Rambai and Trivenibai - PW7 (sisters of deceased Daddu), Shiv Prasad and Kailash - PW9, (cousin of deceased) of the same village came to intervene but the accused persons did not stop. After inflicting injuries on Daddu, thinking him to be dead, accused left the spot. Narmada @ Narbadi and Mayabai also sustained injuries as they were trying to intervene. Daddu was then taken in a bullock cart to Police Station, Gotetoriya, Narsinghpur by Mayabai and others. FIR was lodged by Mayabai on 4.11.92 at 23.30 Hrs. naming all the eight accused in the same and giving details of the injuries caused by each one of them, with the weapons they were carrying. Thereafter, Daddu