JUDGMENT Yashoda Nandan, J. - The appellant Thakur Prasad alias Phakri along with his brother Ramanandi was tried for offences punishable under Section 302 read with Section 34, I.P.C. and also under Section 323, I. P.C. while Ramanandi was given the benefit of doubt and acquitted by the trial court, r the appellant was convicted under Section 302, I.P.C. simpliciter and sentenced to a term of life imprisonment. He was also convicted under two counts under Section 323, I.P.C. and ordered to suffer rigorous imprisonment for four months. The sentences were ordered to run concurrently. No appeal has been filed by the State against the order of acquittal of Ramanandi. The appellant has appealed against his conviction and sentences. 2. The incident leading to the prosecution of the t and Ramanandi is alleged to have taken place on the 12th October, 1963 at 1 p.m. in village Dewanpurwa, Police Station Kuthond, District Jalaun. A report about the incident was lodged by Smt. Nandini Devi (P.W. 1) wife of the deceased Lallu Prasad, at 6.05 p.m. on the same day at the police station which is six miles away from the place of the occurrence. 3. According to the prosecution case, the two accused were the real brothers of the deceased Lallu Prasad. On the date of the alleged incident at about 1 p.m. when Chunna (P.W. 4) , the minor son of the deceased Lallu Prasad went to graze goats near his field known as Tapariyawala field he found that the appellant and Ramanand I were cutting Karvi from there. Chunna protested, but the accused paid no attention to him and threatened him. Chunna consequently came back home and conveyed this information to his father. The deceased Lallu Prasad and Chunna both proceeded towards the field and after they had gone about two fields from the village abadi, the two accused persons were seen coming towards the village. Rama-nandi, was armed with an axe while the appellant had a lathi in his hand and was tarrying a load of Karvi on his head. Lallu Prasad protested against the high handed" ness of the accused in cutting and removing his Karvi and said that he would show the bundle of Karvi to the villagers. This enraged the appellant and Ramanandi and they started belabouring the deceased with lathi and axe. Lallu Prasad protested against the high handed" ness of the accused in cutting and removing his Karvi and said that he would show the bundle of Karvi to the villagers. This enraged the appellant and Ramanandi and they started belabouring the deceased with lathi and axe. According to the prosecution case Ramanandi used the handle end of the axe for beating the deceased. Meanwhile Durga Devi, a minor daughter of Lallu Prasad, who had also followed her father. seeing her father being beaten, rushed back home and informed her mother Smt. Nandini Devi, who on learning that her husband was being beaten proceeded to the scene of the occurrence and when she tried to intervene the two accused beat her Chunna also. Because of the hue and cry -raised, a number of witnesses were attracted to the place of the occurrence and ultimately the accused ran away. But before they did so Ramanandi is alleged to have inserted the handle of the axe in the ANUS of the deceased, who had fallen down. Lallu Prasad was removed on a cot under a Neem tree nearby and there he had a vomit of fecal matters and expired. Smt. Nandini Devi returned back to her house where she wrote out the first information report and after arranging for bullock-carts along with her son Chunna and the deceased proceeded to the police station where she lodged the report. 4. The usual investigation followed. Smt. Nandini Devi and Chunna who had received injuries during the incident were sent to the Orai Hospital for medical examination and treatment. Sri Om Prakash Pandey (P.W. 10) the Station Officer, after holding an inquest of the dead body dispatched it for postmortem examination. After recording the statements of Smt. Nandini Devi and Chunna, he proceeded to the scene of the crime and recovered bloodstained and ordinary earth from the place where Lallu Prasad is said to have been beaten and also from under the Neem tree where he expired. He also recorded the statements of the other witnesses. On a search of the house of Thakur Prasad, a lathi which was bloodstained was recovered. The appellant was not found and subsequently surrendered after proceedings , under Sections 87 and 88, Cr.P.C. had been taken against him. On the investigation having been completed a charge-sheet was submitted by the Investigating Officer. 5. On a search of the house of Thakur Prasad, a lathi which was bloodstained was recovered. The appellant was not found and subsequently surrendered after proceedings , under Sections 87 and 88, Cr.P.C. had been taken against him. On the investigation having been completed a charge-sheet was submitted by the Investigating Officer. 5. The appellant denied the prosecution case and pleaded that he had been falsely implicated on account of enmity and party feeling. He stated that the witnesses were deposing against him on account of enmity. Three witnesses were examined in defence. 6. The autopsy on the dead body of Lallu Prasad was performed by Dr. B.D. Seth (P.W. 6) , Medical Officer In-charge, District Hospital, Orai, at 3 p.m. on the 13th October, 1963. He found the following ante-mortem injuries on the person of the deceased: - "1. Contusion with abrasion 3" x 1" left face front and outer side in front of upper part of left ear. 2. Lacerated wound x x ' just at back end of injury No. 1. The long axis of wound was horizontal parallel to sygomatic.Arch blended with injury No. 1. 3. Contusion with abrasion 2" x about ," below and parallel to injury No. 2. 4. Contusion with abrasion 2" x left forehead. 5. Lacerated wound 1 " x x scalp deep over top head. 6. Lacerated wound x x right scalp 2" above and front of right ear. 7. Lacerated wound x x with compound fracture of left ulna lower end. 8. Four contusions varying from 8" x " to 3" x distributed over back on right side bluish in colour. 9. Three contusions bluish in colour 6" x 1?" to 2" x " whole of left back. 10. Contusion with abrasion 1" x left back lower third. 11. Contusion with swelling 8" x 6" left buttock back and outer side. 12. Lacerated wound 1" x " x ?" in hollow of left ear. 7. On internal examination he found that the soft tissues underneath the scalp were deeply congested due to injuries Nos. 12, 4, 5 and 6 over both hemispheres. There was no fracture of skull bones. The membranes were congested. Clotted blood was present over surface of both hemispheres of brain due to rupture of left middle nomingeal artery as a result of injuries Nos. 1 to 6. 12, 4, 5 and 6 over both hemispheres. There was no fracture of skull bones. The membranes were congested. Clotted blood was present over surface of both hemispheres of brain due to rupture of left middle nomingeal artery as a result of injuries Nos. 1 to 6. According to the doctor all ,the injuries of the deceased were caused by some blunt weapon like a lathi and injuries Nos. 1 and 2 could have been caused by one and the same weapon and one stroke. Death, according to the doctor, was caused by shock and hemorrhage resulting from injuries Nos. 1 to 6 due to rupture of middle meningeal artery on left side. The injuries in the opinion of the doctor were sufficient in the ordinary course of nature to cause death. Duration of death, in the opinion of the doctor, was about 28 hours before the postmortem examination. 8. On the same date Dr. Seth examined the injuries of Smt. Nandini Devi at 1 p.m. and he found the following injuries on her person: - "1. Contusion reddish blue in colour right thigh middle outer side 6" x . 2. Abrasion 2" x " surrounded by contusion reddish blue in colour 2" diameter round about it, right leg middle 3rd front. 3. Contusion 4" x 2" reddish blue in colour surrounded by swelling 4" diameter round about it, left thigh middle third outer side. 4. Contusion reddish blue in colour 2" x ", left leg upper 3rd front outer side. 5. Contusion reddish blue in colour 1" x " left back upper 3rd." 9. The doctor stated that all the injuries had been caused by some blunt weapon like a lathi and were about 24 hours old. 10. On the same day at 1.25 p.m. the injuries of Chunna were examined by Dr. Seth and he found on hint the following injuries: - "1. Contusion reddish blue in colour 6" x 1" left shoulder blade transverse in directions. 2. Contusion with swelling 2" diameter diffuse in nature reddish blue in colour outside of right elbow joint." In the opinion of the doctor the injuries caused by some blunt weapon like a lathi and were all about 24 hours in duration. The injuries of both Smt. Nandini Devi and Chunna were, according to the medical testimony, simple in nature. 2. Contusion with swelling 2" diameter diffuse in nature reddish blue in colour outside of right elbow joint." In the opinion of the doctor the injuries caused by some blunt weapon like a lathi and were all about 24 hours in duration. The injuries of both Smt. Nandini Devi and Chunna were, according to the medical testimony, simple in nature. In order to establish its case, the prosecution has relied upon the eye witness' account of the incident as disclosed by Smt. Nandini Devi (P.W. 1) , her minor son Chunna (P.W. 4), Gur-Narain (P.W. 3), Ram Karan (P.W. 5) and Ganga Narain (P.W. 8), Chunna (P.W. 4), the son of the deceased, although about 12 years of age is the most important witness of the incident. He had witnessed the occurrence from beginning to the end. He, according to the medical testimony, had injuries on his person which could have been caused about the same time as the injuries sustained by the deceased Lallu Prasad and prosecution witness Smt. Nand Devi Although his statement to act that before the accused ran away, the appellant's co-accused Ramanandi inserted the handle of the axe in the anus of the deceased is not borne out by the medical evidence, in our opinion the witness has given a truthful account of the occurrence. In view of the injuries found on his person, there could be no doubt about his presence at the time of the incident. The incident took place in broad-day light and the appellant is the witness's real uncle and we can see no reason why the witness would have left out the real assailants of his father and falsely implicated his uncle. Smt. Nandini Devi is the wife of the deceased and she was also found to have injuries on her body which according to the doctor who examined them could have been caused at the same time as the injuries on the deceased. We have no doubt in our mind that she was a witness of the fatal assault on her husband and the beating of her son. Her testimony is corroborated by the first information re-port which was lodged without any unjustifiable delay. The evidence of these two injured witnesses is corroborated by the testimony of Gur Narain (P.W. 3) , Ram Karan (P.W. 5) and Ganga Narain (P.W. 8). Her testimony is corroborated by the first information re-port which was lodged without any unjustifiable delay. The evidence of these two injured witnesses is corroborated by the testimony of Gur Narain (P.W. 3) , Ram Karan (P.W. 5) and Ganga Narain (P.W. 8). Gur Narain claimed that at the time of the incident he was sitting at Babu Ram's place which is close to the scene of the occurrence and on hearing the alarm raised by the deceased, his wife and son, he rushed to the place and saw the deceased be belaboured by the appellant and Ramanandi. He is also a witness of the heating of Smt. Nandini Devi and Chunna. Ram Karan stated that at the time of the incident he was returning to the village from his Har and the accused persons were ahead of him. He has deposed to the effect that the appellant was carrying a bundle of Karvi on his head and had a lathi in his hand and when he reached near the field of Ram Gopal, the deceased and his son Chunna arrived from the side of the village and the former protested against his Karol having been cut away by the accused persons. He has testified about the deceased, Smt. Nandini Devi and Chunna having been beaten by the appellant with lathi. Ganga Narain (P.W. 8) stated that he was proceeding from the village to his field when he saw the incident. His version of the incident is fully consistent with that of the other witnesses and we can see no reason for not placing reliance on his testimony. 11. There is another piece of incriminating evidence against the appellant. The Investigating Officer Sri Om Prakash Pandey (P.W. 10) has proved the recovery of the bloodstained lathi from inside the house of Thakur Prasad. His statement is corroborated by Gur Narain (P.W. 3) who is a signatory to the recovery memo. The reports of the Chemical examiner and the Serologist satisfactorily establish that the lathi was stained with blood which was of human origin. In order to discredit the prosecution witnesses, as stated above the appellant examined three witnesses in defence. His statement is corroborated by Gur Narain (P.W. 3) who is a signatory to the recovery memo. The reports of the Chemical examiner and the Serologist satisfactorily establish that the lathi was stained with blood which was of human origin. In order to discredit the prosecution witnesses, as stated above the appellant examined three witnesses in defence. Indreshwar Dayal (D. W. 1) is a lawyer and he proved that he had appeared as a counsel in a case on behalf of one Hirdai Narain against Thakur Prasad and some others for certain offences under the Indian Penal Code. It was admitted by Ganga Narain that Hirdai Narain was his brother. It has come in evidence, that the complaint was not prosecuted later and it was dismissed in default. The very circumstance that the complaint was not prosecuted is indicative of the fact that some sort of compromise was arrived at between Hirdai Narain and Thakur Prasad and we are not inclined to discard the testimony of Ganga Narain merely because once his brother had filed a complaint against Thakur Prasad. Ram Narain (D. W. 2), who was a clerk of a lawyer, stated that in the suit for partition filed by Lallu Prasad against the appellant, prosecution witness Ram Karan had acted as Pairokar of the deceased. There is no reason why Ram Karan would leave out the real culprits and falsely implicate the appellant merely because he was friendly with Lallu Prasad. Raghubanshi Lal (D.W. 3) was the Sabhapati of the Gaon Sabha. He was produced for the purpose of establishing that an application signed by about 50 persons, of whom the appellant was also one, was filed before the Sub-Divisional Magistrate against P.W. Gur Narain, it was alleged in the application that Thakur Prasad had abused his position as Pradhan of the Gaon Sabha in leasing out certain land belonging to the Gaon Sabha. The appellant was only one of the numerous signatories to the application and we are not inclined to accept the contention that the witness would have falsely implicated the appellant in a murder case on account of that minor incident. 11. The appellant was only one of the numerous signatories to the application and we are not inclined to accept the contention that the witness would have falsely implicated the appellant in a murder case on account of that minor incident. 11. Having heard the learned counsel for the appellant and having considered the evidence on the record and the circumstances of the case, we are satisfied that the prosecution has established beyond reasonable doubt the appellant's participation in the assault on the deceased, Smt. Nandini Devi and P.W. 4 Chunna. The question, however, still remains to be considered as to of what offence the appellant is liable. The learned Sessions Judge, Orai, held that in view of his finding that Ramanandi who was a co-accused along with the appellant was entitled to the benefit of doubt Section 34, I.P.C. was inapplicable in the circumstances of the case. The learned Judge, however, proceeded to hold that the entire lathi injuries, under the circumstances of the case, could safely be attributed to the appellant and consequently the appellant was convicted under Section 302, I.P.C. simpliciter because in the opinion of the learned trial Judge the appellant was not prejudiced because of the absence of a charge under Section 302, I.P.C. simpliciter. Learned counsel for the appellant has strenuously urged that in view of be evidence the learned Judge was not justified in inferring that all the injuries found on the body of Lallu Prasad had been caused by the appellant. In our opinion, there is much force in this argument. The trial court correctly took the view that in view of the acquittal of Ramanandi, the appellant could not be held liable for the offence of murder with the aid of Section 34, I.P.C. In Krishna Govind Patil v. State of Maharasthra, A.I.R. 1963 SC 1413 the High Court had acquitted three of the four accused charged for an offence under Section 302 read with Section 34 giving them the benefit of doubt in view of the fact that their identity was held riot to have been established, but convicted the fourth under Section 302 read with Section 34 on the ground that he had committed the offence along with one or the other of the acquitted accused. Their Lordships of the Supreme Court took the view that the conviction of the fourth accused was clearly wrong. Their Lordships of the Supreme Court took the view that the conviction of the fourth accused was clearly wrong. It was held that when the accused were acquitted either on the ground that evidence was not acceptable or by giving benefit of doubt to them the effect in law would be that they did not take part in the offence. Hence the effect of acquittal of the three accused was that they did not conjointly act with the fourth accused in committing the murder. If that was so, the fourth accused could not be convicted under Section 302 read with Section 34, I.P.C. for having committed the offence jointly with the acquitted persons. In the appeal before us, the case for the prosecution was definite that only the appellant and Ramanandi acted in concert in causing the injuries under circumstances which made the act an offence under Section 302, I.P.C. There is no charge nor has it been suggested in the evidence that any other unknown person or persons were involved in the commission of the crime of murder. According to the judgment of the trial court Ramanandi has not been proved to have participated in the murder. Section 34, I.P.C. would mean and imply that persons charged with a particular crime were acting in concert and in furtherance of an intention common to all. That being so, the appellant could not possibly be convicted of an offence under Section 302/134, 1. P. C., the other accused having been acquitted of it. The co-accused of the appellant having been acquitted by the trial court, we have only to consider that part the appellant actually took in the assault on the injured persons. It is true that in Willie Slaney v. State of Madhya Pradesh, A.I.R. 1956 SC 116 it has been held by the Supreme Court that having regard to the nature of the charge framed the omission to frame a separate charge under Section 302, I.P.C. against Willie Slaney was only a curable irregularity which in the absence of prejudice could not affect the legality of conviction under Section 302, I.P.C. simpliciter, even though the charge originally framed was only under Section 302/134, I.P.C. This view was also affirmed in Mobarak Ali Ahmad v. The State of Bombay, A.I.R. 1957 SC 857. It was, however, observed by Bose, J. in Willie Slaney's case (supra) : 'It is true that if it cannot be ascertained who struck the fatal blow, then the accused cannot be convicted unless the common intention is proved and in that type of case an acquittal of the co-accused may be fatal to the prosecution. But the converse does not hold good, and if the part that the accused played can be clearly brought home to him and if it is sufficient to convict him of murder simpliciter he cannot escape liability because of the charge unless he can show prejudice." 12. The result is that there is no bar against the conviction of an accused under Section 302, I.P.C. simpliciter merely because he has been charged only under Section 302/134, I.P.C. if no prejudice had been caused to the accused. But, if there is no evidence that it was the appellant who struck the fatal blow he cannot be convicted of an offence under Section 302, I.P.C. after the acquittal of his co-accused. 13. The trial court, in our judgment, was not justified on the evidence on the record in inferring that since Ramanandi had been acquitted, all the injuries found on the person of the deceased could be attributed to the appellant Thakur Prasad. Each one of the witnesses has stated that the deceased was assaulted by Ramanandi and the appellant and that they both inflicted injuries on him with blunt weapons thereby necessarily implying that the appellant was responsible for causing only some of the in-juries found on the person of the deceased. In view of the clear evidence on the record, it is not possible to hold that all the injuries found on the deceased had been caused by Thakur Prasad. There is no evidence on the record to show that injuries Nos. 1 to 6 which according to the medical testimony proved fatal were caused by Thakur Prasad. None of the witnesses have stated that the injuries on the head which resulted in the rupture of the left meningeal artery which according to the medical testimony caused the death of Lallu Prasad, were . inflicted by Thakur Prasad. Under the circumstances, it is not possible for us to ignore the evidence on the record and to hold the appellant responsible for injuries which he is not said to have caused. inflicted by Thakur Prasad. Under the circumstances, it is not possible for us to ignore the evidence on the record and to hold the appellant responsible for injuries which he is not said to have caused. There is also no evidence to show that injury No. 7 which was a grievous hurt was, caused by the appellant. It may be that the appellant caused only injuries other than 1 to 7. In the view we are taking, the conviction of the appellant under Section 302, I.P.C. must be set aside. In the absence of any evidence to show that the appellant was responsible for injury No. 7 which was a grievous hurt he also cannot be convicted under Section 325, I.P.C. The evidence on record, however, fully establishes that the appellant was responsible for causing some injuries to the deceased which may have been only simple injuries and consequently he is liable to be convicted under Section 323, I.P.C. for causing simple hurt to the deceased. The evidence also establishes beyond reasonable doubt that he was responsible for causing simple hurt to Chunna and Smt. Nandini Devi and his conviction under Section 323 on both the counts must be upheld. We are fortified in the view we are taking by a decision of the Calcutta High Court in Babu Lal Bajpai v. The State, AIR 1959 Calcutta 693 and an unreported decision of this Court by a Bench consisting of Mahesh Chandra and Gangeshwar Prasad. J J. in Ganga Ram v. The State, Criminal Appeal No. 148 of 1964. In Babu Lal' Bajpai the appellant had been convicted by the trial court under Section 307-134, I.P.C. and sentenced to suffer rigorous imprisonment for five years. He had been placed on trial under Section 307-134, I.P.C. along with two other co-accused, named Lachmi Narain Singh alias Batarua and Ram Chandra Singh alias Ramaiya, while one Kaloo Khati was charged under Section 307 1149, I.P.C. The three co-accused had been found not guilty and had been acquitted by the trial Judge. Babu Lal alone had been convicted and sentenced as indicated above. Babu Lal alone had been convicted and sentenced as indicated above. Debabrata Mookerjee, J. with whom Niyogi, J. agreed held that: - "The only participants of the crime were the appellant, Batarua and Ramaiya: but the latter two' persons having been acquitted it seems to us impossible to hold that the appellant could still be convicted under Section 307 134 of the Indian Penal Code.- 14. The learned Judges then proceeded to consider the question as to of what offence the appellant Babu Lal was responsible. The evidence disclosed that he had caused only one Bhojali injury on the arm of the victim. The learned Judges took the view that the co-accused of Babu Lal having been acquitted by the learned trial Judge they had only to consider "what part the appeal am actually took in the assault on the injured person". On examining the evidence on the record, it was held that Babu Lal had inflicted only one injury with Bhojali on the right fore-arm of the victim and that he was answerable only for that injury and for nothing else. The learned Judges observed: "It must be recalled that the charge of attempt to murder in which the appellant was said to have been jointly responsible with others failed. That being so, the specific act of assault which the appellant was [roved to have perpetrated on the injured can alone be taken into account." 15. According to the oral evidence considered along with the medical evidence Babu Lal was held responsible for causing an incised wound over the posterior aspect of the right fore-arm at the middle, the wound measuring 4" x i" muscle deep. In these circumstances Babu Lal's conviction under Section 30734, I.P.C. was altered to one under Section 324, I.P.C. and the sentence was reduced to the period already undergone. 16. In Ganga Ram's case, the appellant Ganga Ram was tried along with three others for offences punishable under sections 302/34 and 323/134, I. P.C. for the murder of one Moti Lal and for causing simple hurt to Raja Ram. 16. In Ganga Ram's case, the appellant Ganga Ram was tried along with three others for offences punishable under sections 302/34 and 323/134, I. P.C. for the murder of one Moti Lal and for causing simple hurt to Raja Ram. The trial court ordered the acquittal of the three co-accused but convicted Ganga Ram under Section 302 and Section 323, I.P.C. The Bench which decided the appeal held that since the three co-accused had been acquitted, Ganga, Ram could not be convicted under Section 302 with the aid of Section 34, I.P.C., but that there was no bar against his conviction under .Sec. 302, I.P.C. simpliciter merely because he had been charged only under Section 302/134, I. I'. C. The learned Judges held that, "If there is no evidence that it was the appellant who struck the fatal blow he cannot be convicted of an offence under Section 302, I.P.C. after the acquittal of his co-accused. He can only be convicted of an offence which he has been proved to have committed." 17. After considering the evidence on the re-cord, Mahesh Chandra and Gangeshwar Prasad, JJ. held that, "In view of the evidence actually produced it is not possible to say that the appellant caused any fatal injury to Moti Lal deceased All that the statements of the prosecution witnesses read with the medical evidence establish is that he had caused at least one of the injuries to Moti Lal and he has, therefore, been proved to be guilty of an offence under Section 323, I.P.C. only." We are in respectful agreement with these decisions. 18. In the result we allow the appeal in part, set aside the conviction of the appellant for the offence punishable under Section 302, I.P.C. and instead convict him under Section 323, I.P.C. and sentence him to four months' R. I. for causing hurt to Lallu asad. His conviction under Section 323, I.P.C. for causing simple hurt to Chunna and Smt. Nandini Devi is upheld under both the counts and the sentences thereunder are maintained. The sentences are ordered to run concurrently. The appellant is on bail. If he has already undergone the sentences as modified by this Court, he need not surrender and his bail bonds are discharged, otherwise he shall surrender forthwith to serve out the sentences as ordered by this Court.