JUDGMENT 1. - This judgment will deal with the the criminal appeals listed above filed by the same set of appellants from one and the same order of conviction and sentence passed by the learned Additional Sessions Judge, Kota. S. B. Cr. Appeal No. 277/78 was filed by the appellants through the Superintendent of Jail in which they were lodged at the relevant time. S. B. Criminal Appeal No. 292/78 was presented on their behalf subsequently by their counsel, Shri K. K. Mehrish and Shri S. R. Joshi, Advocates. 2. The case of the prosecution resulting in the impugned order of conviction and sentence against the appellants may be shortly stated. Dhanna, one of the three appellants, had reclaimed some land and brought it under his cultivation nearly 8 year before the occurrence. The adjoining land measuring two bighas was similarly reclaimed by PW. Ramkumar who brought it under his cultivation nearly three years before the occurrence. These two pieces of land belong to the State Government. It appears that both Dhanna and Ramkumar were allowed to occupy this land which are situated in the west of the Government land occupied by them as aforementioned. 3. On July 8, 1977, Kanhaiyalal PW and one Devilal submitted a complaint in writing to the Deputy Inspector General of Police, Kota, alleging that Jumna wife of Ramkumar had been killed by the three appellants with the help of 4 other persons and that Seven culprits had also caused grievous hurt to Madanlal PW. brother of Ramkumar. This complaint was forwarded by the Deputy Inspector General of Police, to the station house officer, Police Station, Kanwas. A wireless message was also communicated to him directing him to take up immediate investigation. 4. P. W. Aswani Kumar, S. H. O. Kanwas, rushed to the spot without any delay. On arrival at the scene of occurrence, he saw Jamuna lying dead near the dry bush fencing dividing the plot of land in occupation of Ram Kumar, husband of Jamna deceased, from the plot of land in occupation of Dhanna accused. Madanlal P. W. was lying injured nearby. Aswani Kumar recorded the statement of P. W. Madanlal, which is Ex. P/10 on the record. The formal F. I. R. in the case was registered on the basis of Ex. P/10. Madanlal P. W. was lying injured nearby. Aswani Kumar recorded the statement of P. W. Madanlal, which is Ex. P/10 on the record. The formal F. I. R. in the case was registered on the basis of Ex. P/10. Madanlal told the police that there was a pathway (Rasta) between the aforementioned two plots which was being used by both sides for going to their respective proprietary lands in the west of these plots. Madanlal complained that Dhanna, who has always been covetous of the land of the path way, encroached upon it and erected a bush-fencing all along its length, thus merging it in the land which he had occupied earlier. This created bad blood between the parties. Madanlal further told the police that on July 8, 1977 morning when he was already out there in the field, Jamna deceased, accompanied by her son Parmanand PW, also arrived there. All the 7 accused, including the three appellants, were already present there. Jamna objected to the bush-fencing raised by Dhanna in the pathway. She tried to remove some bushes in order to assert her right of passage through that land. Dhanna resisted and, in the process, inflicted Gandasi blow on her left leg. He also exhorted his companions to kill Jamna. It is alleged that thereupon all the 7 accused inflicted injuries to her. PW Madanlal went forward to save Jamna from further injuries. The accused are alleged to have attacked him as well and inflicted grievous injuries to him. PW Parmanand who is said to have been a child, 13 years of age, at the relevant time, helplessly stood by weeping and crying. Ram Kumar and other villagers arrived at the scene of occurrence after the crime had already been committed. 5. On investigation, the police sent up Dhanna, his two sons Surajmal and Danmal, and his four followers namely, Ramkishan, Prabhu, Nandkishore and Amarlal. for trial under sections 147, 148, 447, 302-34 and 325-34 I. P. C. During the trial, the learned Additional Sessions Judge examined Madanlal and Parmanand who were cited by the prosecution as eye-witnesses of the occurrence. He also recorded the statements of Ramkumar, Dr. Tejkaran, Galib, Dr. M. M. Mishra and Dr. Desraj Sharma as to the post-mortem examination report in respect of Jamna and medico-legal report in respect of Madanlal. 6. He also recorded the statements of Ramkumar, Dr. Tejkaran, Galib, Dr. M. M. Mishra and Dr. Desraj Sharma as to the post-mortem examination report in respect of Jamna and medico-legal report in respect of Madanlal. 6. Madanlal who is obviously a very material witness, being the brother of the husband of Jamna deceased, and who himself suffered grievous hurt in that course of this transaction, did not support the prosecution story in its entirety. He stated that the crime had been committed by Dhanna alone and that none of the other accused participated in it. The learned public prosecutor was permitted by the trial court to cross-examine this witness. He was duly confronted with his prevouj statement, Ex. P/ 10 in which he had clearly implicated Dhanna, Danmal m Surajmal stating that they had inflicted fatal blows to Jamna and grevious huil to him. He denied having made that statement in the manner recorded by Aswani Kumar. 7. PW Parmanand who is said to be a child, 13 years of age fully supports the prosecution story contained in Madanlals statement Ex, P./10 which, as already stated, constitutes the F. I. R. in the case. He however, did not support the earlier version of this occurrence as contained in Ex. P/17, the written complaint submitted to the Dy. Inspector General of Police, Kota by PW Kanhaiya and Devlal. 8. In the statements under section 313 Cr. P. C. all the accused Dhanna totally denied the allegations made against them. Dhanna, however, admitted that he had inflicted a gandasi blow on the left leg of Jamna deceased in trying to prevent her from removing the bush facing raised by him in the plot of land in his occupation and from committing criminal trespass in the land in his possession. He denied having caused any hurt to Madanlal PW. 9. The accused did not produce any evidence in defence. 10. Relying on the testimony of PW. Parmanand alone, the learned trial Judge came to the conclusion that no case was made out against the four companions of the present appellants. They were, therefore, acquitted of the charges framed against them. He, however, convicted the present appellants under section 304(2) of the Indian Penal Code and sentenced each of them to rigorous imprisonment for 10 years and a fine of Rs. They were, therefore, acquitted of the charges framed against them. He, however, convicted the present appellants under section 304(2) of the Indian Penal Code and sentenced each of them to rigorous imprisonment for 10 years and a fine of Rs. 250/-or, in default of payment of fine, to further suffer simple imprisonment for four months in each case. He also found them guilty under section 325 read with section 34 I. P. C., but he did not pass any separate sentence for that offence. 11. The appellants learned counsel contended that it is abundantly proved on record that Dhanna and his sons, the appellant, had raised a bush fencing on the earthen band dividing the piece of land occupied by PW. Rumkumar and that there was no Rasta running through the piece of land in occupation of the appellants. This contention is borne out from the evidence on record PW. Ramkumar himself admitted in his cross-examination that before he had reclaimed the Govt. land adjoining the appellants land, he used to pass through the land reclaimed by him for going to his field in the west. This means that the case of the prosecution that there was a Rasta in existence between the land occupied by Ram Kumar and the other land occupied by the appellants is not correct. The so-called Rasta for Ramkumar was through the land which he has since reclaimed and brought under his own cultivation. 12. Ramkumar further admitted that the appellants had erected bush fencing all along the dividing line between the land in his occupation and the land in occupation of the appellants. PW Parmanand son of Ramkumar made the position further clear when he admitted in cross-examination that the appellants had erected the dry bush fencing on the band dividing their plot from the plot of the appellants. 13. It can, therefore, be safely concluded that the appellants had fenced their own plot with bushes without encroaching upon the land of any `Rasta'. Jamna deceased, wife of PW Ramkumar, it appears, was determined to make a passage for herself and for the members of her family through the land in occupation of the appellants. Her son Parmanand PW. 13. It can, therefore, be safely concluded that the appellants had fenced their own plot with bushes without encroaching upon the land of any `Rasta'. Jamna deceased, wife of PW Ramkumar, it appears, was determined to make a passage for herself and for the members of her family through the land in occupation of the appellants. Her son Parmanand PW. admitted that she was carrying Jelly in her hands at the time of the occurrence and that, before she was attacked by the appellants, she had removed some bushes from the fencing erected by the appellants in an attempt to make way for herself and Parmanand to pass through the land in occupation of the appellants. This conclusion also finds support from what PW Ramkumar admitted in his cross-examination. He stated that on arrival at the scene of the occurrence, he found that the fencing raised by the appellants on the dividing band between appellants land and his land was intact throughout except at one point where some bushes had been removed and where Jamna was lying dead. This means that Jamna was attacked and killed in the process of her determined bid to remove the fencing and make way through it so as to be able to enter the landing, occupation of the appellants pass and through it. 14. As already stated, PW Madan Lal testified that Dhanna accused alone had inflicted blows at Jamna deceased and thereby killed her. He further stated that the injuries on his body had also been inflicted by Dhanna Lal alone. This witness was declared hostile and allowed to be cross-examined by the Public Prosecutor. He admitted in his cross-examination that his land was under a mortgage with the appellants and that it has since been redeemed from them. Learned Public Prosecutor, who maintained that the appellants had released the said land from their mortgage as a bargain for Madan Lal's promise to give evidence favourable to them in this case, drew my attention to that portion of Madanlals statement wherein he pleaded that he does not remember the year in which the said land was redeemed from the appellants. Learned Public Prosecutor contended that Madanlal, who know it too well that the land had been re-deemed after the occurrence, was obviously trying to conceal this fact. 15. Be that as it may, I am satisfied that PW. Learned Public Prosecutor contended that Madanlal, who know it too well that the land had been re-deemed after the occurrence, was obviously trying to conceal this fact. 15. Be that as it may, I am satisfied that PW. Madanlal was present at the scene of occurrence, that he had witnessed the same and that he was himself attacked and injured in the course of the same transaction. This much is also clear that Madanlal was at pains to suppress the truth in an attempt to exonerate at least two of the accused persons. 16. PW Parmanand, who is being described as a child, has in my opinion given evidence on which one can safely reply. He was admittedly 13 years of age at the time of the occurrence. The learned trial Judge discovered as a result of the interrogation of this witness that he is an intelligent child, who fully understood the significance and importance of oath and of telling the truth. The oath was administered to this witness only after the learned Judge had satisfied himself in that behalf. The performance of Parmanand on the stand fully justified the confidence reposed by the learned trial Judge in his competence as a witness.Permanand did not hesitate to depose against the prosecution where he found it necessary in the interest of truth for example, he plainly told the learned Public Prosecutor that Ramkishan, Nand Kishore, Prabhu Lal and Amar Lal, who are alleged to have participated in the commission of this crime had arrived at the scene of the occurrence after his mother had already been attacked and injured. He made it clear that they did not inflict a single blow to his mother or to Madan Lal PW. Similarly, he did not suppress the truth even if it went against the interest of his father. For example, he admitted that the dry bush fencing had been raised by the appellants on the boundary line between the plot in their occupation and the plot in occupation of his father. In other words, he admitted that there was no Rasta etc. in existence between the two plots. 17. All said and done, therefore, PW Parmanand is a witness on whose testimony implicit reliance can be placed. He testified that all the three appellants attacked his mother and inflicted injuries to her with their respective weapons. In other words, he admitted that there was no Rasta etc. in existence between the two plots. 17. All said and done, therefore, PW Parmanand is a witness on whose testimony implicit reliance can be placed. He testified that all the three appellants attacked his mother and inflicted injuries to her with their respective weapons. He further stated that the injuries on the left leg of his mother, which were subsequently found on post-mortem examination to be incised wounds involving fracture of the fibula were caused by Dharma with a Gandasi. He further stated that all the three appellants participated in the beating given to his mother. 18. The post-mortem examination report, Ex. P. 26 reveals that all the injuries found on the dead body, except those on the left leg, were caused by some blunt weapon. This means that Surajmal and Danmal, who were carrying Kantiya and Kulhari, respectively, wielded their weapons from blunt side for inflicting injuries to the deceased. 19. Learned trial Judge has found it as a fact that the appellants did not intend to kill Jamaa. This is, in my opinion, a correct finding. It is true that Dhanna, Surajmal and Danmal were armed respectively, with Gandasi Kantiya and Kulhari, which are sharp edged weapons, it is however, reasonable under the circumstances of this case to conclude that they were carrying these weapons not as weapons of offence, but as implements for use in fixing the dry bush fencing around their plot. Jamna deceased arrived at the scene, apparently determined to exercise that who considered was her right of way through the land which the appellants had already fenced with dry bushes. As already stated, she was carrying a Jolly in her hand. She had removed with the Jolly a portion of the bush fencing to make way for her to cross into the fenced land. It was then that Dhanna and his two sons attacked her and inflicted bodily injuries to her. Dharma struck Gandasi blow from the sharp side, on her left calf. The other two appellants also hit her on the non-vital parte of her body. Each of the three appellants was in his own way trying to avoid giving a fatal blow. Dhanna, who wielded the Gandasi from the sharp side was careful to strike it at the non-vital part i. e. left calf of the deceased. The other two appellants also hit her on the non-vital parte of her body. Each of the three appellants was in his own way trying to avoid giving a fatal blow. Dhanna, who wielded the Gandasi from the sharp side was careful to strike it at the non-vital part i. e. left calf of the deceased. Danmal and Surajmal who were carrying a Kulhari and Kantiya, respectively, struck blows with them from their blunt side on relatively non-vital parts of the body. The blunt force injuries inflicted by them to the deceased caused bruises. It is true that two of the bruises, subsequently turned out to be involving fractures of the humerus and 4th and 5th vertebrae in the cervical region. 20. From the above discussion, it will be reasonable to conclude that all the three appellants gave beating to Jamna deceased in furtherance of their common intention which was to give a mere beating and nothing more. It is obvious that they did not intend to kill her. They did not even intend to inflict such bodily injuries to her as were likely to cause her death. This is apparent from the manner in which they wielded their weapons and the parts of the body of the deceased at which they struck those weapons. They clearly inflicted those blows with the intention of giving Jamna severe beating, They must under the circumstances be fixed with the knowledge that death could possibly result from those injuries. 21. Dr. Tej Karan Galib who conducted the post-mortem examination has stated in his report that Jamna died due to shock caused by multiple fractures, He was not prepared to say that any of three fractures found by him on the body of the deceased was individually sufficient in the ordinary course of nature to cause death. It is, therefore, reasonable to conclude that Jamna died due to the cumulative effect of the injuries inflicted by all the three appellants. 22. For all these reasons, I hold that accused cannot be held guilty undo section 304 Part I of the Indian Penal Code. The offence committed by them squarely falls within the ambit of section 304 Part II of the Indian Penal Code. They committed this offence in furtherance of their common intention. Section 34 I. P. C.is therefore, attracted to this case. 23. The offence committed by them squarely falls within the ambit of section 304 Part II of the Indian Penal Code. They committed this offence in furtherance of their common intention. Section 34 I. P. C.is therefore, attracted to this case. 23. Consequently, I partly allow this appeal to the extent indicated above. The conviction of the appellants is converted from 304 Part I, IP C to 304 Part II. IPC. Appellant Dhanna has continuously been in detention since July 8, 1977. He has thus, already undergone imprisonment for a period of nearly 20 months, Surajmal and Danmal were released on bail. On July, 21, 1978. They had remained in detention for a period of more than 13 months each before they were released on bail. The imprisonment already suffered by them in addition to the fine imposed will, in my opinion, serve the ends of justice in this case. I would accordingly reduce the sentence of each of the appellants to the sentence of imprisonment already undergone by him and a fine of Rs. 250/- or in default, further rigorous imprisonment for three months each. Out of the fine, if released, a sum of Rs. 500/- shall be paid to PW Ramkumar instead of PW Madanlal. Obviously Ramkumar is more deserving of compensation than Madanlal.Appeal partly allowed. *******