JUDGMENT 1. - This appeal arises out of a judgment of the learned Sessions Judge, Kota dated 8th June, 1981, whereby the accused appellants Sohan @ Makaria has been convicted under Section 302 IPC and sentenced to imprisonment for life and a fine of Rs. 200/-, in default of payment of fine to further undergo rigorous imprisonment for two months and Mohan appellant has been convicted under Section 302/34 IPC and sentenced to imprisonment for life and a fine of Rs. 200/- in default of payment of fine to further undergo rigorous imprisonment for two months. 2. It would not be necessary to give detailed facts of the case as the learned appellants has conceded the participation of the accused appellants in the commission of the crime. We have also gone through the record of the case and have also perused the judgment of the learned Sessions Judge. The prosecution case in brief is that on 15th December, 1979 at about 1.30 P.M. the accused appellants met Sattoo deceased near Baori Mohalla. After some altercation between them, both the accused persons started hurling and beating Sattoo with stones of sufficiently big size. Ramdhani PW 6, a girl of 7 years, saw the incident and went crying to her father PW 1 Bhanwar Lal and told him that the accused persons were beating Sattoo. PW 1 Bhanwar Lal than came out of his house and saw that Sattoo was lying flat on the ground near Chabutra of Babu Harijan on the main road and the accused persons were having big stones in their hands. As soon as Bhanwar Lal reached on the spot the accused persons inflicted blows on the head of Sattoo by stones and by the time he reached near Sattoo, the accused persons fled away. Sattoo was lying unconscious. Thereafter Chhitar PW 3 put Sattoo on a cot and at that time blood was oozing out of the mouth and ear of Sattoo. Bhanwar Lal PW 1 then filed an oral report in Police Station, Kotwali, Rampura, Kota at 2 p.m. vide Ex. A1. In FIR Ex. A1 it was also mentioned that the cause of inflicting injuries on Sattoo was an old family fud and litigation between the parties. By the time Sattoo was taken to the hospital in a jeep, he was declared dead. On conducting post-mortem examination of deceased Sattoo by PW. 9 Dr. A1. In FIR Ex. A1 it was also mentioned that the cause of inflicting injuries on Sattoo was an old family fud and litigation between the parties. By the time Sattoo was taken to the hospital in a jeep, he was declared dead. On conducting post-mortem examination of deceased Sattoo by PW. 9 Dr. M. M. Misra following injuries were found: on the body of the deceased: 1. Lacerated wound 1" x 1/2" x 1/2" on left side chin with compound fracture of mandible. 2. Lacerated wound 1" x 1/4" x 1/4" on left angle of mouth. 3. Abrasion 1" x 1" on left cheek. 4. Abrasion 2" X 1/2" on left mandibular. 5. Swelling 2" x 1" on left occipital area of scalp. 6. Swelling 2" x 2" on left temporal area of scalp. After usual investigation challan was filed against the accused persons under Section 302 and 302/34 IPC in the court of Judicial Magistrate No. 2, Kota. The learned Magistrate committed the case for trial to the court of session. Both the accused persons were charged for offences under Section 302 IPC and they pleaded not guilty to the charges. The prosecution examined 15 witnesses in support of its case. The accused persons in their explanation denied the entire prosecution case but did not lead any evidence in their defence. 3. During the trial PW 1 Bhanwar Lal, PW 2 Babu @ Tunda, PW 13 Chhitar Lal and PW 6 Ramdhan were examined as eye-witnesses of the incident. Out of these 4 witnesses PW 2 Babu and PW 13 Chhitar Lal did not support the prosecution story and were declared hostile. However, PW 1 Bhanwar Lal and PW 6 Ramdhani supported the prosecution case and except few minor inconsistencies in their statements, their statements were consistent and supported the prosecution case. The learned Sessions Judge placed reliance on their statements and arrived at the conclusion that the head injury was inflicted by Sohan accused and the injury on the face was inflicted by accused Mohan. According to Dr. M.M. Misra PW 2 injuries Nos. 5 and 6 were sufficient jointly and individually to cause death of the deceased Sattoo. The learned Sessions Judge placed reliance on their statements and arrived at the conclusion that the head injury was inflicted by Sohan accused and the injury on the face was inflicted by accused Mohan. According to Dr. M.M. Misra PW 2 injuries Nos. 5 and 6 were sufficient jointly and individually to cause death of the deceased Sattoo. We have also gone through the evidence of PW 1 Bhanwar Lal and PW 6 Ramdhani and from their statements it is clearly proved that both the accused persons had inflicted injuries on head and face of the deceased, which were found on the body of the deceased in post-mortem examination conducted by PW 9 Dr. M.M. Misra. There can be no manner of doubt that the aforesaid injuries were inflicted on the vital parts of the body and were sufficient in the ordinary course of nature to cause death of deceased Sattoo. 4. The only point now to be considered is as to what offence has been committed by the appellants and whether in the facts and circumstances of the case an offence under Section 302 IPC has been made out against the appellant or not. 5. It was contended by Mr Gupta, learned counsel for the appellants that even according to the evidence of PW 1 Bhanwar Lal and PW 6 Ramdhani the fight started immediately on the spot due to some verbal altercation between deceased Sattoo and the accused persons. It is contended that it was not a case of planned murder and death was caused in a sudden fight in the heat of passion. It was also contended that the injuries were inflicted only by stones which were available on the spot and looking to the nature of injuries it cannot be said that the accused persons took any undue advantage of the situation or acted in a cruel manner. It is thus contended that at the most the case was culpable homicide not amounting to murder and the accused persons can only be convicted under Section 304 Part II IPC and not under Section 302 IPC. It is also contended that both the accused persons are young persons of 24 years or 25 years of age and are illiterate rustic villagers and a lenient view should be taken in the award of sentences. 6. It is also contended that both the accused persons are young persons of 24 years or 25 years of age and are illiterate rustic villagers and a lenient view should be taken in the award of sentences. 6. From the perusal of the prosecution evidence it has not been proved that the accused-appellants had intention to cause death. However, from a perusal of the evidence of PW 1 Bhanwar Lal and PW 6 Ramdhani it is provod beyond any manner of doubt that the accused appellants had intention to cause such injuries which in their knowledge were likely to cause death. Looking to the nature of injuries as proved by FW 9 Dr. M.M. Misra, which are on a vital part of the body like head and face, and according to Dr. Misra on internal examination there were fractures of left temporal and occipital bones of skull. Membranes were ruptured on left temporal and occipital areas. There was brain laceration on left temporal id occipital lobus. The Doctor has also stated that in the ordinary course of nature both the injuries collectively and individually caused the death in the ordinary course of nature. However, the death was caused without premeditation and in a sudden fight in the heat of possion and the accused appellants did not take undue advantage of the situation nor acted in a cruel manner as such the appellants cannot be held guilt for the offence under Section 302 IPC. The case against the appellants is found established under Section 301 Part I IPC. The accused appellants are rustic villagers and are of young age and as such ends of justice would be met if each out of them is sentenced to rigorous imprisonment for a period of 5 years and to a fine of Rs. 200/- and in default of payment of fine to further undergo rigorous imprisonment for two months. 7. In the result, the appeal is partly allowed the convictions and sentences of the appellants under Section 320 aid 302/34 IPC are set aside and Sohan appellant is convicted under Section 304 Part 1 IPC and sentenced to five years rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo rigorous imprisonment for two months. Mohan appellant is convicted under section 304 Part 1/34 IPC and sentenced to five years' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo rigorous imprisonment for two months. Mohan appellant is convicted under section 304 Part 1/34 IPC and sentenced to five years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine to further undergo rigorous imprisonment for two months. Both the accused-appellants will get the benefit of Section 428 Cr.P.C. and the period of detention, if any, undergone by them during investigation, inquiry or trial in this case, shall be set off against the term of imprisonment imposed on them.Appeal partly allowed. *******