IMPORTANT POINT
Ingredients of section 304 Part I applied.

JUDGMENT

AMITAVA ROY, J.

(1) Leave granted.

(2) The appellants hereby assail the affirmation of their conviction under Sections 147,148, 149 Indian Penal Code (for short, hereinafter to be referred to as “IPC”) as recorded by the Trial Court. By the decision impugned, the High Court, however has altered their conviction from one under Section 302 IPC to Section 304-Part I IPC. Thereby, the appellants now stand sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000/-, in default, to suffer simple imprisonment for further two months for this offence. All sentences have been ordered to accrue concurrently.

(3) We have heard Dr. J.P. Dhanda, learned counsel for the appellants and Mr. Ravi Prakash Mehrotra, learned counsel for the State.

(4) The genesis of the arraignment is traceable to the incident that witnessed the deadly assault on Lalni @ Raj Kumar, the brother of the informant Gaya Prasad, on 04.04.1982 at 1.00 p.m. within the precincts of the house of the deceased.

(5) As the first information laid at 3.15 p.m. on the same date would reveal, in the morning thereof, the cattle of the deceased had strayed into the fields of Suraj Bali and others and had allegedly destroyed the Arhar crop of the accused persons. On being abused by them (accused persons), the deceased herded back the cattle and returned home crestfallen. While he was sitting in his compound in the afternoon at about 1.00 p.m. and in the company of the informant his brother, Gaya Prasad PW-1 as well as Sitaram PW-2 and Ram Sajeewan @ Dhunna PW-4, altercation broke out between him and the accused persons including the appellants, who resided next door, on the same issue. The heated exchanges that followed escalated tempers, whereupon as per the prosecution, the appellants along with Suraj Bali and Chandra Bali pounced on the deceased, in a body. On being exhorted by Suraj Bali to eliminate the deceased, appellant Deo Munni @ Putti, at his instance, brought his gun and fired at Lalni. As Lalni fell, being injured, the other accused persons joined in the assaults with lathis. The informant and the other two witnesses though intended to intervene, they were prevented from doing so, by pointing the gun towards them. Lalni died at the spot.

(6) On the lodgement of the FIR with the police at about 3.15 p.m., as herein before mentioned, case was registered under Sections 302,147,148 and 149 IPC. In course of the investigation, inquest on the dead body was conducted and the sketch map of the place of occurrence was prepared. After the charge-sheet was laid against the accused persons, charge was framed under Section 302, read with Sections 147/149 IPC against them, they having pleaded “not guilty”. Additionally, charge under Section 148 also framed against appellant Deo Munni @ Putti who was armed with gun, as indicated, herein before.

(7) The prosecution examined as many as six witnesses including eye witnesses, namely; Gaya Prasad (PW-1), Sitaram (PW-2), Ram Sajeewan @ Dhunna (PW-4), besides Dr. S.C. Srivastava (PW-5) and Brahm Dev Singh, Investigating Officer (PW-6).

(8) On the completion of the prosecution evidence, statements of the accused persons were recorded under Section 313 Cr.P.C.. They also examined Shyam Lal as their witness in defence.

(9) The Trial Court, on an exhaustive appreciation of the evidence on record, convicted all the accused persons under Sections 302,147,148 and 149 IPC as mentioned therein. They were amongst others sentenced to undergo imprisonment for life for the offence under Section 302 IPC. They were sentenced as well for the other offences.

(10) As referred to hereinabove, the High Court in appeal sustained the conviction under Sections 147/148/149 IPC but moderated the conviction under Section 302 IPC to one under Section 304-Part I and the sentence therefor was ordained to be rigorous imprisonment for 10 years and fine of Rs.5000/-, in default, simple imprisonment for further two months.

(11) The learned