JUDGMENT 1. This is an appeal filed by one Mohan against the judgment of the learned Sessions Judge, Partabgarh dated November 30, 1974 by which the appellant was convicted under section 302, Indian Penal Code, and sentenced to undergo imprisonment for life and the other co-accused viz. Tulsa, Nathia, Panna and Madhia were acquitted of the charge uuder section 302 read with section 149, Indian Penal Code. It will not be out of place to mention that the State has lot preferred any appeal with the leave of this Court against the acquittal of the co-accused. 2. The prosecution case against the appellant was as follows : On May 8, 1973 at about 5 p.m. Bherun Nath deceased told the appellant lhat he would recover a sum of Rs. 200/- from the latters maternal-grandfather Modanath, as this sum was due to him. The appellant thereupon told Bherun Nath that he would not allow the latter to recover this amount from his maternal grand-father. These talks led to a fight between them. Mohan appellant and his brothers Tulsa, Nathia, Panna and Madhiya, thereafter, started beating Bherun Nath deceased. Mohan appellant inflicted several lathi blows on the head of Bherun Nath, while his brothers also caused injuries to his body with `lathis'. As a result of the blows Bherun Nath fell down and died after a few hours. In the course of assault Heera Nath and his younger brother Bhanu Nath tried to rescue the deceased, but they were also beaten by the appellant and his brothers. 3. A report of this incident was lodged by Heera Nath with the police at police station, Nimbaheda on May 9, 1973 at 4 A. M. On the basis of the report the police registered a criminal case under section 302, Indian Penal Code, and took up the usual investigation into the matter. The police went to the spot inspected the site and sent the dead body of Bherun Nath to the medical-officer-in-charge, Government Hospital, Nimbaheda for post-mortem examination. Dr. Hari Singh conducted an autopsy over the dead body of Bherun Nath and found the following ante-mortem external injuries on it:- 1. Lacerated wound scalp frontal area right side magnetically place; 2"x 1/4" clot present. 2. Transversely placed lacerated 11/2" x 1/4" x 1/4": Right parietal surface clot present. 3. Lacerated wound magnetically placed over left frontal area 11/2" x 1/4" x 1/4" clot present. Lacerated wound scalp frontal area right side magnetically place; 2"x 1/4" clot present. 2. Transversely placed lacerated 11/2" x 1/4" x 1/4": Right parietal surface clot present. 3. Lacerated wound magnetically placed over left frontal area 11/2" x 1/4" x 1/4" clot present. 4. Lacerated wound : over left parietal region magnetically placed 11/2" x 1/4" x 1/4" clot present. 5. Lacerated semicircular wound : 2" x 1/2" x 1/2" over junction of parieto occipital junction. 6. Obliquely placed lacerated wound : Over right parietal region 2" x 1/4" x 1/4". 7. Lacerated wound : " Left ring finger 1/4" x 1/4" x 1/4" Upon dissection of the body, he detected fractures of left temporal bone, left parietal bone, right temporal bone, and right parietal bone. He noticed subdural haemorrhage also which was extensive over both sides. In his opinion Bherun Nath died on account of shock caused by head injuries and sub-dural haemorrhage over both sides. Dr. Hari Singh examined the injuries of Heera Nath, Manga Nath and Gulab Nath also, which are mentioned in his report. 4. The police collected other necessary evidence in the case and, eventually, filed a charge sheet against the appellant and his four brothers under section 302 read with section 149, Indian Penal Code in the Court of Munsiff-Magistrate, First Class, Nimbaheda, who upon finding a prima facie case exclusively triable by the court of session, committed the appellant and the other co-accused to the Court of Sessions Judges, Partabgarh for trial under section 302 read with section 149, Indian Penal Code. The learned Sessions Judge tried the appellant and other accused persons, and found the appellant only guilty of the offence of murder. Aggrieved by his conviction and sentence the appellant has referred this appeal.We have carefully perused the record and heard Mr. K. C. Gaur, learned counsel for the appellant, and Mr. N. S. Acharya, Public Prosecutor for the State. 5. It has been vehemently contended before us by Mr. K. C. Gaur, learned counsel for the appellant, that the Sessions Judge has committed a grave error in convicting the appellant under Section 303, Indian Penal Code. K. C. Gaur, learned counsel for the appellant, and Mr. N. S. Acharya, Public Prosecutor for the State. 5. It has been vehemently contended before us by Mr. K. C. Gaur, learned counsel for the appellant, that the Sessions Judge has committed a grave error in convicting the appellant under Section 303, Indian Penal Code. It was further urged that there is no reliable proof on the record that the appellant was responsible for causing all the injuries found on the head of the deceased, and that the injuries weresufficient in the ordinary course of nature to cause the death. Mr. N. S. Acharya, Public Prosecutor on the other hand, urged that the prosecution has led cogent and unimpeachable evidence in proof of the guilt of the appellant, and so the learned Sessions Judge was wholly justified in convicting him for the offence of murder. It was further argued by the learned Public Prosecutor that from the testimony of six eye-witnesses it is clearly established that the appellant had inflicted several blows on the head of Bherun Nath with a Lathi as a result of the blows Bherun Nath died after few hours. 6. We have given our anxious consideration to the above contention. At the outset, we may observe that the prosecution has examined six eye-witnesses to prove the connection of the appellant with the crime of murder. The first eye-witness produced by the prosecution is Heera Nath (P.W.l). His evidence in nutshell is that quarrel ensued between Mohan-appellant and Bherun Nath deceased over a sum of Rs. 200/- which was due to the deceased from the appellants maternal grandfather. The deceased told Mohan that he would recover this sum from the latters maternal-grandfather, but Mohan told him that he would not permit the deceased to recover this sum from his maternal-grandfather Modanath. This quarrel resulted in an assault on the deceased by Mohan appellant and his brothers Viz. Tulsa, Nathia, Panna and Madhiya with lathis. Heera Nath further stated in his deposition that Mohan struck a blow on the head of Bherun Nath with a lathi. As a result of this blow Bherun Nath fell down. Thereafter Tulsa inflicted two or three blows with a lathi on his body and then the other co-accused Nathia, Panna and Madhiya also belaboured him with lathis. The other eye-witness is Mangu Nath (P. W. 2). As a result of this blow Bherun Nath fell down. Thereafter Tulsa inflicted two or three blows with a lathi on his body and then the other co-accused Nathia, Panna and Madhiya also belaboured him with lathis. The other eye-witness is Mangu Nath (P. W. 2). He corroborated the statement of Heera Nath as to the cause and origin of the assault and further stated that Mohan appellant had dealt five or six lathi blows on the head of Bherun Nath and the other co-accused struck further blows on his body after he had fallen on the ground. The third eye-witness is Gulab Nath (P. W. 3). His evidence is that Mohan appellant, in the first instance, struck two lathi blows on the head of Bherun Nath as a result of which the latter fall down. Thereafter all the live accused dealt 20 or 25 lathi blows on his body. The fourth eye-witness is Bhanwar Nath (P. W. 4). He also stated that Mohan appellant struck a blow on the head of Bherun Nath as a result of which the latter fell down. Thereafter all the live accused belaboured him with lathis. Another eye-witness is Mst. Sohni (P. W. 5), who claims to have seen Mohan appellant alone striking four five lathi blows on the head of Bherun Nath. The other eye-witness viz. Smt. Hundi also stated that Mohan appellant first struck a blow on the body of the deceased, while the latter was standing, and thereafter dealt five or six more blows after he had fallen down, and deceased was beaten by all the accused persons. In this manner the eye-witnesses have given out different versions as to the number of lathi blows struck by the appellant on the head of the deceased. Heera Nath (P. W. 1) and Bhanwarnath (P. W. 4) elaimed to have seen the appellant striking a blow on the head of the deceased with a lathi while Mangu Nath (P. W. 2) protested to have seen the appellant inflicting five or six blows on the head of Bherun Nath. Gulab Nath (P. W. 3), on the other hand, gave an altogether different version by stating that only two lathi blows were struck by Mohan appellant on the head of the deceased and, thereafter, when the deceased fell down, all the five accused struck 20 or 25 blows on his body, with lathis. Gulab Nath (P. W. 3), on the other hand, gave an altogether different version by stating that only two lathi blows were struck by Mohan appellant on the head of the deceased and, thereafter, when the deceased fell down, all the five accused struck 20 or 25 blows on his body, with lathis. Smt. Sohni (P. W. 5) stated in her deposition that the appellant had struck four or five blows on the head of Bherun Nath with a lathi. Smt. Hundi (P.W.6),on the other hand, deposed that Mohan appellant had first struck a blow on the body of Bherun Nath and thereafter when the latter fell down, he inflicted more blows-five or six in number on his body. 7. In view of the above contradictions appearing in the evidence of the six eye-witnesses regarding the number of blows inflicted on the head of the deceased by Mohan appellant, we do not feel persuaded to hold that all the six injuries found on the head of the deceased were inflicted by the appellant. The prosecution case was that besides the appellant, there were other co-accused who took part in the assault on the deceased and inflicted lathi blows on his body, but the other co-accused have been acquitted by the learned Sessions Judge on the ground that the prosecution could not prove beyond reasonable doubt that they also participated in the assault made on the deceased and caused injuries to his body, and the State has not preferred an appeal challenging the finding of their acquittal. In these circumstances, we are unable to hold that the appellant alone was responsible for causing all the head injuries with a lathi. Of course it is proved beyond reasonable shadow of doubt by the evidence of the six eye-witnesses that the appellant struck a blow on the head of the deceased as a result of which, he fell down. The learned counsel for the appellant could not succeed in assailing the evidence of these eye-witnesses so far as it relates to participation of the appellant in the assault made on the deceased and to the infliction of one lathi blow on his head. The learned counsel for the appellant could not succeed in assailing the evidence of these eye-witnesses so far as it relates to participation of the appellant in the assault made on the deceased and to the infliction of one lathi blow on his head. We have scrutinised the evidence of the six eye-witnesses with cart and caution and have found it true and reliable to the extent that the appellant had caused a blow on the head of Bherun Nath deceased with a lathi as a result of which he fell down. The presence of these eye-witnesses on the scene of occurrence could not be doubted on any reasonable score. Further these eye-witnesses were not inimical to the appellant and there is nothing on the record to show that they have falsely implicated the appellant in this case out of personal grudge, enmity or some ulterior motive. 8. The next question that arises for determination is as to what offence has been committed by the appellant. Before dealing with this question we may observe that Dr. Hari Singh found as many as six antemortem external injuries on the head of the deceased. On dissection of the dead body he further noticed fractures of left and right temporal and parietal bones and subdural haemorrhage which was extensive over both sides. There is no evidence to show as to which particular injury out of the six injuries was caused on the head of the deceased by the appellant. In these circumstances, it is very difficult to say that the injury caused by the appellant resulted in the death of Bherun Nath and the appellant was guilty of the offence under section 302, Indian Penal Code, simplicitor. As it is proved beyond reasonable doubt that the appellant was armed with a lathi and with it he struck a blow on the vital part, that is, the head of the deceased as a result of which the latter immediately fell down, the appellant must be held to have inflicted that blow with a considerable force and he could be convicted under section 3 25, Indian Penal Code, only. Reference in this connection may be made to the following authorities of the Supreme Court: Baul v. State of U.P., AIR 1968 S.C. 728 and Karnail Singh v. State of Punjab, 1977 S.C. (Cri) 31 , wherein in similar circumstances the conviction of the appellant was altered from one under section 302. Indian Penal Code to that under section 325, and 326, Indian Penal Code, respectively. Hence the conviction of the appellant under section 302, Indian Penal Code, cannot be upheld, as in our opinion it should be altered to that under section 325, Indian Penal Code. As regards the sentence under section 325, Indian Penal Code, it may be observed that the appellant has already served out sentence of imprisonment for a period of about four years, eight months, and 20 days. Apart from this, he has under gone detention during the period of investigation, enuqiry and trial of this case and before his conviction for a period of about 171/2 months. In our opinion, the ends of justice would be met if the sentence of life imprisonment is reduced to a term already undergone by him. 9. The result of the above discussion is that we partly accept the appeal filed by Mohan-appellant, and alter his conviction from one under section 302, Indian Penal Code to that under section 325, Indian Penal Code and reduce the sentence from life imprisonment to the term already undergone by him. Mohan appellant is in jail. He shall be set at liberty forth-with, if not required in connection with some other case.Appeal partly allowed. *******