JUDGMENT Bennett and Misra, JJ. - In this case there are three Appellants of whom Ram Lal and Chet were sentenced to death and the third, Dwarka to transportation for life u/s 302 of the Indian Penal Code. Ram Lal and Dwarka are brothers, and the lesser sentence was imposed on Dwarka as he appeared to have acted tinder the influence of his elder brother, Ram Lal. The Sessions Judge has also referred the case for confirmation of the death sentence. 2. The Appellants were convicted for attacking a man named Barkau Singh on the evening of the 27th January, 1941, and inflicting such injuries upon him as to cause his death the following morning. 3. According to the prosecution story the deceased, Barkau Singh, and his brother, Babu Singh were looking after the sir cultivation of their father, Kehri Singh, in Giglapur where the Appellants live. In the morning of the 27th January Barkau Singh is said to have caught a man named Maiku, brother of Ram Lal and Dwarka, cutting his arhar crop and to have given him a beating. Barkau Singh is alleged to have been attacked by the Appellants later in the day in revenge for the heating which he gave Maiku. 4. Babu Singh was with Barkau Singh when the attack was made upon the latter. He got away, raised an alarm and three other witnesses came back with him in time to see the last part of the attack upon Barkau Singh. 5. Barkau Singh was picked up unconcious. His body was taken to Sandila on the morning of the 28th January, and the post mortem examination was performed the next day. The report shows that he was a man of about 34 years of age. There were 12 injuries on his head and body, and death was due to shock produced by multiple injuries inflicted by some blunt weapon. of the 12 injuries there were two contused wounds on the scalp which was fractured, but the evidence of the Medical Officer shows that these injuries would have been caused by one and the same blow. 6. The defence set up in the Court below was that there was only one incident and that the Appellant Dwarka and his brother Maiku were the only persons responsible for Barkau Singh's injuries. 6. The defence set up in the Court below was that there was only one incident and that the Appellant Dwarka and his brother Maiku were the only persons responsible for Barkau Singh's injuries. Dwarka stated that he went to his brother Maiku's assistance and a lathi fight ensued. This story was disbelieved by the Court blow, and the learned Counsel for the two Appellants who have been sentenced to death does not dispute the finding. We take it, therefore, that the facts are substantially as alleged by the prosecution, and that all the three Appellants were concerned in the attack upon Barkau Singh on the evening of the 27th January. We may mention that Dwarka has appealed from jail and that the statement in his appeal, that he knows nothing about the murder, is directly opposed to his own statement in Court. 7. The contention of the learned defence Counsel is that in the circumstances the conviction should not have been u/s 302 but u/s 325. There was only one below upon the head which caused fracture, and the other injuries are not such as would have contributed directly to the deceased's death, although the medical evidence attributes death to shock produced by multiple injuries. There is nothing to show which of the Appellants struck the blow on the head, or at which stage of the occurrence this blow was struck. There is evidence to show that the deceased was struck after he had fallen down, but learned Counsel points out that this was not stated by the principal witness, Babu Singh, until he appeared in the Sessions Court. In that Court Babu Singh also stated that when the three Appellants came up they declared their intention of killing Barkau Singh, though in the Magistrate's Court Babu Singh said that they only threatened to "set my brother right", that is to say, they threatened revenge in a general way without indicating their intention to kill him. The other eye-witnesses in both Courts deposed that the Appellant struck Barkau Singh after he had fallen down, but we feel doubtful whether this statement can be relied upon as Babu Singh, the principal witness, did not make such a statement before coming into the Sessions Court. The other eye-witnesses in both Courts deposed that the Appellant struck Barkau Singh after he had fallen down, but we feel doubtful whether this statement can be relied upon as Babu Singh, the principal witness, did not make such a statement before coming into the Sessions Court. No doubt, if Baraku Singh was struck first of all upon the head, it is probable that he fell down on receiving this blow and received other injuries at the hands of the Appellants as he lay on the ground. Babu Singh deposed that his brother fell down on receiving blows on his head, and we think this probable. The question, however, for our consideration is whether we can upon the evidence hold that the blow on the head was the first blow or one of the first blows received by him, that he fell down on receiving it, and that other blows were struck subsequently. 8. We have been referred on the question of the liability incurred in causing death in circumstances like these to a number of cases of this Court namely, Zahid Khan v. King Emperor 1939 O.A. 157 : A.W.R. (C.C.) 27 : O.W.N. 7, Sunder Singh v. King Emperor 1939 O.A. 492 : O.W.N. 576, and Bhagwati Emperor 1939 O.A. 574 : A.W.R. (C.C.) 96 : O.W.N. 662. These were all cases in which the question considered was the effect of the application of Section 34 where there had been one or two serious injuries and a number of other injuries which, by themselves, would not be sufficient to cause death. In the present case the Sessions Judge has not considered the effect of Section 34 at all; in fact, it is not referred to in the charge. In the last case cited, to which one of us was a party, it was said that where the common intention of the accused was merely to give the deceased a sound beating, and he was struck only twice on a vital part, while the other ten injuries were inflicted on non vital parts of the body, and all these were of a simple nature, and it cannot be said that the accused knew that death was likely to be committed in the prosecution of their common object, the offence, committed falls u/s 325 read with Section 34. 9. 9. In the present case the injuries, excluding those on the head, do not appear to have been serious. There is no indication that they resulted in any internal injury. 10. On the point of intention learned Counsel has argued that as the injuries inflicted by Barkau Singh on Maiku earlier in the day were not serious, it is not likely that the Appellants would have intended to cause Barkau Singh serious injuries. We do not think that there is very much force in this contention, for it often happens in cases of this kind that the original intention is exceeded as the assailants lose control of their tempers. 11. We think that it is a matter of some importance in cases of this kind to ascertain, if possible, whether injuries were inflicted after the victim has fallen on the ground. It was said by a learned Judge of this Court in Sunder Singh v. King Emperor 1939 O.A. 492 : O.W.N. 576, that-- "To beat a person after he has fallen down does not necessarily prove the intention of causing his death. Certain factors will have to be considered, such as for instance the number of blows, the nature of those blows and the parts of the body on which those blows have been inflicted." We agree, if we may say so, with these observations, and we think that it may also be of importance to know what the condition of the injured person was when he fell down. If there could be no doubt about his serious condition, for instance if blood was flowing from his head or body and he was apparently unconscious, the striking of further blows, even on his body, though such blows might not ordinarily be dangerous, would indicate an intention on the part of his assailants to cause him more injury than would be caused by an ordinary beating, for the intention to give a beating would already have been more than given effect to, and a man in that condition would be less likely to survive if further blows were given, the shock to his system being aggravated by the additional blows. In the present case the medical evidence is that death was due to shock caused by multiple injuries, but we think that it would have resulted from the injuries to the head alone and that the other injuries did not contribute materially to this result. 12. We do not find the evidence in this case sufficient to establish that further blows were struck alter the deceased had fallen down, though we think it not unlikely. It may also perhaps be thought doubtful, assuming that they were, whether the assailants could appreciate that the man was in such a condition that the infliction of further blows could not fail to affect his chance of surviving. We have therefore, decided that the benefit of the doubt must be given to the Appellants on these points and a conviction u/s 325 substituted for a conviction u/s 302. We accordingly allow the appeals to this extent and impose a sentence of seven years' rigorous imprisonment upon each of the Appellants u/s 325 for the sentence of death imposed on Ram Lal and Chet and the sentence of transportation for life imposed on Dwarka. The reference for confirmation of the death sentence is rejected.