JUDGMENT 1. - Appellants sona and Chokha were tried for offences under sections 302, 394 and 323, IPC by learned Sessions Judge, Balotra. By his Judgment dated October 30, 1975, the learned Sessions Judge held the appellants guilty for the aforesaid Offence and sentenced each of them to imprisonment for life and a fine of Rs. 200/-, in default of payment of fine to undergo rigorous imprisonment for two months on the first count, five years' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to undergo rigorous imprisonment for one month on the second count and one year's rigorous imprisonment on the third court. The substantive sentences awarded to each appellant on the three counts were ordered to run concurrently. 2. Being aggrieved by their convictions and sentences the appellants have preferred this appeal through Superintendent, Central Jail Jodhbur. Later on, Mr. Bhim Raj Purohit, Advocate appeared on their behalf. 3. Succinctly narrated, the facts of the case giving rise to this appeal are that deceased Bhera, brother of complainant Ladu Ram (PW 1), had gone in adoption to his uncle Maga. Appellants Chokha are grand sons of another uncle of deceased Bhera. Bhera being in possession of the land belonging to Maga, his adoptive father, sona and Chokha were picking up quarrel with him and were on inimical terras Chokha had instituted a case against deceased Bhera for giving a beating to him prior to the date of the present incident. On November 16, 1974, at about sunset deceased Bhera was coming from the northern direction of his field with a bundle of thorns, a `Jehi' and an axe in his hand. At that time his wife Anchi (PW 3) was cutting leaves from a`Khejri' Tree at a distance of about 50 paundas from the place where the occurrence is said to have taken place. When Bhera reached near the outskirts of the fields of Maga and Amara, the two appellants, who were following him, reached near him. Chokha inflicted a lathi blow on the left side of ribs of Bhera. Bhera fell down. Thereafter, both the appellants inflicted a number of lathi blows on his person. The bundle of thorns with Bhera had fallen down when he himself fell down on the ground and so also the axe with him. Chokha inflicted a lathi blow on the left side of ribs of Bhera. Bhera fell down. Thereafter, both the appellants inflicted a number of lathi blows on his person. The bundle of thorns with Bhera had fallen down when he himself fell down on the ground and so also the axe with him. The appellants took the `Jehi'and used it also as a weapon of offence. Anchi (PW 3) on seeing her husband being beaten, raised a cry and rushed to his rescue. On seeing her the appellants rushed towards her and gave her a beating with lathis. They again went near Bhera and inflicted further lathi blows on him. Anchi (PW 3) reached near her husband and fell over him in order to save him. The appellants again gave a beating to Anchi. After giving a beating, the appellants took away `Hansali' (Ex. 1). `Murkies' (Ex. 2) and turban of the deceased Bhera from his person. They also took his axe (Ex. 3) with them. The `Angocha' (Piece of cloth) to be worn beneath the turban of Bhera remained at the site. On hearing the cries of Anchi her sister-in-law Ruktna (PW 4) and Dhapu came out of their `Dhanis' and saw the occurrence. When the appellants left the injured, they went to the place where Bhera and Anchi were lying. Bhera had succumbed to the injuries then and there. Goma nephew of the deceased Bhera, said to be at some distance from the place of occurrence, rushed to his house being frightened by the beating given to his uncle. He after some time reached the site and was sent to bring Moda, brother-in law of Bhera. Ladu Ram (PW 1) brother of deceased Bhera was out of village at the time of occurrence. After some time Rukma (PW 4) wife of Ladu Ram went to her `Dhani' to look after her Children. Ladu Ram (PW 1) had returned by that time Rukma informed him about the incident. Ladu Ram (PW 1) immediately went to the place where his brother was lying dead. Direct from that place he went to the police Station, Sindari, which was at a distance of about ten miles from his village Kharmavecha and lodged the information Ex. P. 1 P.W. 7 Poonam Chand, Station House Officer, Sindari went to the site and prepared the site inspection memo Ex. P. 2 and site plan Ex. Direct from that place he went to the police Station, Sindari, which was at a distance of about ten miles from his village Kharmavecha and lodged the information Ex. P. 1 P.W. 7 Poonam Chand, Station House Officer, Sindari went to the site and prepared the site inspection memo Ex. P. 2 and site plan Ex. 12. He took the blood stained earth and the control soil, broken tooth of Bhera, broken bangles of Anchi and `Angocha' of Bhera from the site into his possession vide memo Ex. P. 4 and prepared inquest memo of deceased Bhera Ex. P.5. The Station House Officer also prepared the injury report of Anchi. Appellant Sona was arrested on November 18, 1974 vide memo Ex. P 13 and appellant Chokha on November 22, 1974, vide memo Ex.P. 14. In pursuance of the information furnished by sona, while in police custody, one lathi was recovered at his instance. In pursuance of the information furnished by appellant Chokha, the axe, `Murki' and the `Jehi' were recovered from his house and turban and `Hansali' from beneath a tree. On November 18, 1974, at 8.30 a.m. Dr. Ramesh Chandra Purohit (PW 6), Medical Officer, In charge, Primary Health Centre, Sindari, conducted autopsy over the dead body of Bhera and prepared the post-mortem examination report Ex. P. 10. The Doctor noted 55 injuries on the dead body of Bhera. In the opinion of the Doctor, cause of death was shock due to hemorrhage due to rupture of liver and multiple bodily injuries. The duration of death was between 36 to 40 hours of the post-mortem examination on the same day at about 11.30 a.m. Doctor Purohit examined the injuries of Anchi and prepared the report Ex. P. 11 He noted 16 injuries on her person. The duration of her injuries was 36 to 48 hours. 4. Upon completion of investigation, charge-Sheet against the appellants was filed in the court of Judicial Magistrate, Balotra. The learned Magistrate, finding a prima-facie case exclusively triable by the court of Sessions Judge, Balotra, to stand their trial. The learned Sessions Judge charge-sheeted the appellants for the aforesaid offences and recorded their pleas. Both the appellants denied the indictments and claimed to be tried. To substantiate its case, prosecution examined seven witnesses in all. The appellants in their statements under section 313, Cr. The learned Sessions Judge charge-sheeted the appellants for the aforesaid offences and recorded their pleas. Both the appellants denied the indictments and claimed to be tried. To substantiate its case, prosecution examined seven witnesses in all. The appellants in their statements under section 313, Cr. P.C. totally denied the allegations levelled against them and stated that the prosecution witnesses being relatives of the complainant party and having inimical relations with them, because of the dispute regarding the fields, had deposed against them. No defence witness was examined. The learned Sessions Judge placed reliance on the prosecution evidence and held the appellants guilty of the charges levelled against them and sentenced them as stated earlier. 5. We heard Mr. Bhim Raj Purohit, learned counsel for the appellants, and Mr. H.N. Calla, learned Public Prosecutor for the State, and carefully examined the record of the case. 6. Mr. Purohit, assailing the findings of the learned Sessions Judge, strongly contended that when the relations between the appellants and the deceased were strained, the prosecution should have taken care to examine independent witnesses instead of keeping content with the evidence of interested relative witnesses. 7. The eye-witnesses examined by the prosecution in the case are Goma (PW 2), Anchi (PW 3) and Rukma PW 4). This is correct that all these three witnesses are near relatives to the deceased. Goma (PW 2) is his real nephew. Anchi (PW 3) is his wife and Rukma (PW 4) is his sister-in law, i e. wife of his real brother Ladu Ram Complainant. The point for consideration is whether the testimony of these witnesses carries the impression of truth and without there being any corroboration from independent witnesses, convictions could have been based on their testimony. 8. Goma (PW 2) has stated that he was cutting trees at distance of about 15 Poundas from the place of occurrence and saw the two appellants reaching near his uncle Bhera and Chokha giving a beating to him According to this witness, on seeing the first blow being inflicted by Chokha, he got frightened and ran away from the place of occurrence. As there was no member available at the `Dhani', he again went to the place of occurrence and was sent to call Moda, brother-in-law of the deceased. The conducts of this witness of course appears to be unnatural, because a person seeing his uncle being beaten would. As there was no member available at the `Dhani', he again went to the place of occurrence and was sent to call Moda, brother-in-law of the deceased. The conducts of this witness of course appears to be unnatural, because a person seeing his uncle being beaten would. In the natural course of events, raise a cry to attract the attention of the persons of the vicinity in order to rescue the victim. Goma (PW 2) was a boy of about 15 years of age at the time of the incident and, therefore, his getting frightened and running away on seeing the occurrence cannot be said to be so unnatural so as to discord his testimony altogether. Apart from it, he had only stated about he seeing only one blow caused by Chokha to the deceased and then himself running away from there. In these circumstances we also do not consider Goma (PW 2) an important witness in the case. 9. The most important witness in the case on which the prosecution hings is Anchi (PW 3) wife of the deceased. It is pertinent to note that she had sustained 16-injuries at the time of occurrence at the hands of the assailants and her contention about her injuries is supported by the medical evidence of Dr. Purohit. According to the Doctor these injuries were caused by blunt object and the duration was 36 to 48 hours. Her presence at the site and her being beaten by the appellants is also proved by the statement of her sister-in law Rukma (PW. 4) Rukma (PW 4) has deposed that Anchi was at the `Khejri' tree when she heard her cry and came out of `Dhani'. Rukma has given the description about the assailants inflicting blows to deceased Bhera and causing injuries to Anchi who had rushed to save her husband. Statement of Anchi is thus Corroborated by another eye witness to the occurrence and medical evidence. Presence of injuries on her person said to have been sustained at the time of the incident at the hands of the appellants in her efforts to rescue her husband is a strong circumstance against the appellants. 10. Mr. Purohit agreed with the argument of Mr. Presence of injuries on her person said to have been sustained at the time of the incident at the hands of the appellants in her efforts to rescue her husband is a strong circumstance against the appellants. 10. Mr. Purohit agreed with the argument of Mr. H.N. Calla, learned Public Prosecutor for the State that presence of injuries on the person of Anchi establishes her presence at the time of the incident but, at the same time stressed, that she being the wife of the deceased was an interested witness and, therefore, from her statement alone, it cannot be held that the incident must have taken place in the way she had narrated. Mr. Purohit has tried to shatter the testimony of this witness on the ground that her attention was drawn only when Bhera had raised a cry on being beaten and, therefore she could not have been in a position to see and know what was the origin of the quarrel. The argument has no force, because the witness was only at a distance of 50 paundas from the place of occurrence. The occurrence had taken place before sun-set and had seen her husband coming from the western side with a bundle of thorns on the `Jethi' In this view of the matter we are inclined to hold that the learned trial judge has committed no error in placing reliance on the testimony of Anchi. 11. While discussing the evidence of Anchi (PW 3) we have referred to the statement of Rukma (PW 4), another eye-witness of the occurrence. She, having heard the cry of her sister-in-law had rushed out of the `Dhani' and had seen the occurrence from there. The argument of Mr. Purohit that it could not have been possible for her to see the occurrence from a distance of more than 50 Paunds has no force in view of the statement of the Motbir Navla Ram (PW 5) who had stated that the place of occurrence is visible from the `Dhani' of Ladu Ram. 12. Mr. Purohit has laid great emphasis on the point that even if prosecution case is given weight still from the evidence on record it should be held that the origin of the quarrel was different from the one alleged by the prosecution. 12. Mr. Purohit has laid great emphasis on the point that even if prosecution case is given weight still from the evidence on record it should be held that the origin of the quarrel was different from the one alleged by the prosecution. According to him, Anchi had seen towards her husband only when beating to him had started and, therefore, she could not be in a position to state as to what had actually happened prior to that which led to the quarrel. It has been urged that in order to find out the truth of the matter circumstances of the case are to be seen and the most important of them is the presence of injuries on the person of Sona at the time of his arrest. Learned counsel vehemently contended that it was incumbent upon the prosecution to explain the injuries sustained by thus appellant Sona and because of its failure to do so adverse inference should be drawn against it. Mr. Purohit contended that it to appears that Bhera might have picked up a quarrel with Sona and would have caused injuries to him and in order to save himself Sona might have caused injuries to Bhera. In this view of the matter, according to the learned counsel. Presence of Chokha stands eliminated, because had he been there he also would have sustained injuries at the hands of Bhera. 13. Mr. Calla, learned public prosecutor, contested this position and submitted that the evidence in the case and the circumstances do not lead to such a conclusion and that it is not in every case that prosecution should explain the injuries found on the person of the accused at the time of his arrest. 14. At the very outset we may observe that the plea of right of private defence of person of sona has no where been taken by the accused. We are alive of the principle that even in cases where specific plea is not taken by the accused but if the circumstances so warrant, courts are bound to look into the matter from that angle and if any doubt is created about the truthfulness of the prosecution case and it can be inferred that the accused might have acted in the circumstances when the right of private defence to person or to property had accrued to him, he is entitled to benefit thereof. Similar important is the principle that even if the accused has any apprehension of receiving at the hands of the victim, the right of private defence is open to him and he cannot be expected to stand silently and wait for the attack on him. In these circumstances, the blows inflicted by the accused cannot be counted and he cannot be deprived of benefit of right of private defence if the blows inflicted by him happen to be more in number and severe in effect. 15. With these principles in view when we turn to the present case, we are inclined to observe that even after a careful study of the case and examination of the witnesses we are unable to find any circumstance to justify the injuries caused by the accused or to eliminate the presence of Chokha from the site of occurrence or his not participating in the crime. 16. The only material available to the learned counsel for the appellants in this respect is the mention of certain injuries in the arrest memo of sona Ex.P. 13. It is mentioned therein that at the time of his arrest there was some swelling on the wrist of his hands. There were clotted abrasions on the leg and mark of rubbing on the head. A slight injury on the nose in the left side beneath the eye was also noted. The important point for consideration is whether there is any material to hold that these injuries were sustained by Sona during the course of the incident for which he had been tried and convicted. It is relevant to note that the incident relates to the evening of November 16, 1974. Sona was arrested on November 18, 1974. There is no material to suggest that the injuries sustained by him were two days old. It is pertinent to note that no suggestion has been made to any of the prosecution witnesses that at the time of the incident sona had sustained any injury at the hands of Bhera. Even the question about the presence of injuries on the person of Sona when he is said to have taken to heels has not been put to any witness. It is still more important to observe that even Sona had not stated about his sustaining any injury at the time of the occurrence at the hands of Bhera. Even the question about the presence of injuries on the person of Sona when he is said to have taken to heels has not been put to any witness. It is still more important to observe that even Sona had not stated about his sustaining any injury at the time of the occurrence at the hands of Bhera. The arrest memo does not show about Sona's informing the police that the injuries noted on his person were sustained by him at the time of the incident at the hands of the victim. 17. Learned counsel for the appellants has referenced to the case of Lakshmi and other v. State of Bihar, AIR 1976 SC 2263 where in their Lordships were pleased to emphasise the importance of the explanation by the prosecution for the injuries found on the body of the accused and held that if in a murder case the injuries sustained by the accused at about the time of the occurrence or in the course of altercation are not explained, the Court can draw the inference that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. 18. As to when such an inference may be drawn by the Court depends on the circumstances of a given case. It is not in all cases that the failure of prosecution to explain the injuries found on the person of the accused may adversely affect the prosecution case. The following observations of their Lordship in the above referred case are quoted below: "There may be cases where the non explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that if far outweighs the effect of the omission on the part of the prosecution to explain the injuries." 19. It is note-worthy that even while pointing out the inferences can be drawn for the failure of prosecution to explain the injuries of the accused, their Lordships have taken note of the fact that the injuries requiring such an explanation should be sustained by the accused at about the time of the occurrence or in the course of altercation 20. It is note-worthy that even while pointing out the inferences can be drawn for the failure of prosecution to explain the injuries of the accused, their Lordships have taken note of the fact that the injuries requiring such an explanation should be sustained by the accused at about the time of the occurrence or in the course of altercation 20. In the present case, as observed above, there is no material of any type to substantiate the arguments of the learned counsel for the appellants that sona had substantiate any injury at or about the time or during the course of the incident. In the absence of any such explanation, it cannot be presumed that the minor injuries like scratches and abrasions found on his person two days after the occurrence were caused during the course of the incident. 21. We thus find ourselves unable to subscribe to the contention of the learned counsel for the appellants that it was a case in which the principle of right of private defence to person of Sona should have been applied by the learned trial Judge. The argument for Sona not finding favour, the absence of injuries on the person of Chokha would not help him and his presence and participation in the crime duly established by reliable witnesses, cannot be eliminated. 22. Having arrived at a conclusion that the learned trial judge was justified in placing reliance on the prosecution witnesses and holding the appellants guilty for the commission of the crime, the next question calling for answer is whether the appellants have rightly been convicted for the offence of murder. 23. Mr. purohit has laboured much to convince that even if the prosecution case is taken to be true still it cannot be said that the appellants had any intention to commit the murder of Bhera. He has built up this argument drawing our attention to two factors. First is, that there was no injury on any vital part of the body of Bhera and the rupture of liver, which according to the Doctor, had proved fatal, might have been by an accidental blow on that part. It has been urged that if the intention would have been to commit the murder, the assailants, two in number, would not have spared the head of the victim. It has been urged that if the intention would have been to commit the murder, the assailants, two in number, would not have spared the head of the victim. Another factor pointed out is that most of the injuries are of very minor type and clearly indicate that the intention of the assailants could not have been other than causing injuries to Bhera. Mr. Purohit submitted that this being the situation, the case of the appellants does not travel beyond the ambit of section 304 part II, I.P. C, because at the most they can be imputed with the knowledge that the injuries caused to Bhera were likely to cause his death. 24. Mr. H. N. Calla, learned public prosecutor, on the other hand, strongly urged that two appellants armed with lathis attacking Bhera and causing so many injuries on his person have been rightly held guilty for the offence of murder. 25. In order to appreciate these arguments properly it would be profitable to carefully examine the nature and number of injuries sustained by the deceased Bhera. 26. Dr. Ramesh Purohit (P.W. 6) who conducted the post mortem examination of the dead body of Bhera has noted 55 injuries on the dead body. Out of them four were facture's. True is, that there was no injury on the head, but there were injuries on the face. While examining the liver the Doctor has noted that there was tear on the anterior surface of right lobe of liver which has extended obliquely and do unwards towards inferior then diverted to wards inferior surface and extending posteriorly. Doctor has opined that the cause of death was shock due to hemorrhage due to rupture of liver and multiple bodily injuries. The Doctor has further deposed that injuries Nos. 48 and 49 were on the vital part like liver of the deceased? and were caused by a single blow and were sufficient to cause death of Bhera in the ordinary course of nature. The remaining multiple injuries, according to the Doctor, were sufficient in the ordinary course of nature to cause the death of Bhera by shock. Injury No. 48 was as under : "Contusions 11 cms. 4 cm. and were caused by a single blow and were sufficient to cause death of Bhera in the ordinary course of nature. The remaining multiple injuries, according to the Doctor, were sufficient in the ordinary course of nature to cause the death of Bhera by shock. Injury No. 48 was as under : "Contusions 11 cms. 4 cm. on the right hypochondi region extending from the right anterior axillary line along with inter space of 8th, 9th and 10th rib towards right mid clavicular line." Injury No. 49 was as follows : "fracture of right 9th, 10th ribs." With this description, it cannot be said that none of the blows was on the vital part. The liver was injured, and there is also corresponding injury No 48. Both these injuries being by a single blow the force used by the another of the injuries must have been great. Both the appellants had simultaneously inflicted blows to Bhera even after he had fallen down after receiving first blow by Dhokha. This is correct that the fatal injury of liver cannot be assigned to a particular appellant but the remaining injuries by themselves were also sufficient in the ordinary course of nature to cause death and, therefore, both of them were responsible for the injuries of Bhera which resulted in his death. 27. In the case of Harinarain v. The State, 1974 WLN (HN) 106 referred to by the learned counsel for the appellants, the intention to cause death was not held to be proved for the reason that after giving one blow on the head the subsequent blows were on the legs of the victim and, therefore, it was opined that if the intention would have been on vital part to kill, further blows would also have been on vital part after the victim had fallen down. 28. The present case is distinguishable because here it was after the accused had fallen down that all the injuries except the first one assigned to Chokha Ram were caused. 29. The case of Ram Swarup v. The State of Haryana, AIR 1977 SC 664 . referred to by Mr. Bhim Raj Purohit, learned counsel for the appellant, is also of no help to him for the reason that the murder in that case was not premediated but arose out of mutual fight between the assailants and the victim. 30. The case of Md. referred to by Mr. Bhim Raj Purohit, learned counsel for the appellant, is also of no help to him for the reason that the murder in that case was not premediated but arose out of mutual fight between the assailants and the victim. 30. The case of Md. Ishaq Md. and others v. The State of Maharashtra, AIR 1979 SC 1434 . also relates to a sudden quarrel after hot exchange of abuses. There was no evidence to show which accused assaulted the deceased with strucks. In such circumstances, intention to cause death was not held to be proved and it was held that only intention to cause grievous hurt was there. The assailants were, therefore, held guilty not under section 302 or 304 (1) but under section 325/34, IPC. 31. In the present case there was neither any quarrel nor any exchange of abuses. Bhera was attacked unawares and there is specific evidence that both the appellants had lathis and used them in inflicting blows to Bhera. 32. Similarly the case of Hannu andi others v. State of Madhya Pradesh, AIR 1979 SC 1755 . is also of no help to the appellants. The case was taken out of the purview of section 302/34 IPC and the accused were held guilty only for the offences under section 326/34, IPC for the reason that in a case of attack by several accused and a fatal injury resulting in the death of victim, there were four different versions as to the stabbing incident. There was contradiction between evidence before the court and statement before the police. The fact of absence of definite finding about any particular accused being responsible for the fatal injury was taken into consideration with the above referred factors. 33. The way in which the assailants attacked the victim Bhera in the present case indicates that it was with common intention to commit the crime that Sona and Chokha had gone to him and committed the crime. 34. Culpable homicide is murder if it falls within any of the four clauses of section 300 IPC. As provided in third clause, culpable homicide is murder if the act is done with the intention of causing bodily injury to any person and bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. 35. Culpable homicide is murder if it falls within any of the four clauses of section 300 IPC. As provided in third clause, culpable homicide is murder if the act is done with the intention of causing bodily injury to any person and bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. 35. In the present case, in our opinion, the case of the appellants falls within the ambit of third clause of section 300, IPC in view of the nature of the blows resulting in 55 injuries out of which two by themselves and the remaining cumulatively were sufficient in the ordinary course of nature to cause death of Bhera. Hence, both the appellants were rightly held guilty for the offence of murder. 36. We are fortified in our view by the observations of their Lordships in the case of Anda and others v. The State of Rajasthan, AIR 1966 SC 148 . In that case several persons intentionally caused injuries to the victim which resulted in his death, and all of them were held guilty of murder under third clause of section 300 read with section 34, IPC. Their Lordships were pleased to propound the following principle: "The third clause of S. 300, IPC views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature. When this sufficiency exists and death follows and the causing of such injury is intended, the offence is murder." 37. We may also refer to the case of Laxman and others v. State of Maharashtra, AIR 1974 SC 1803 . The sufficiency is the high probability of death in the ordinary way of nature. When this sufficiency exists and death follows and the causing of such injury is intended, the offence is murder." 37. We may also refer to the case of Laxman and others v. State of Maharashtra, AIR 1974 SC 1803 . In that case the trial court had convicted the accused for the offence under section 325 read with section 34, I.P.C. The High Court altered the conviction of the three assailants to under section 302 with section 34, I.P.C. When the matter came before the Supreme Court, their Lordships held that High Court was right in altering the conviction, as there were 34 injuries caused to the deceased with an axe and sticks and, were sufficient to cause death in the ordinary course of nature and so the intention of the assailants to cause death could be inferred. 38. In the present case, there were 55 injuries. Four of them being fractures and there were lacerated wounds. Two injuries were individually fatal and the liver a vital organ of the body got ruptured due to the force of the blow. In such circumstances, intention to commit the murder of Bhera is evident. 39. The question as to whether in a case whether the fatal blow cannot be assigned to a particular accused, all the participants can be held guilty for the offence of murder came for consideration before their Lordships of the Supreme Court in the case of State of Maharashtra v. Kalu Shivram Jagtap and others, AIR 1980 SC 879 . The facts of that case were some what Similar to the case in hand. In view of the facts and circumstances of the case their Lordships were pleased to observe as under: "When the two accused persons were armed with sticks participated equally in the actual assault on the deceased as also in the abuses hurled on him, having come together and having gone together there was no room for doubt about the common intention of both the accused to cause the murder of the deceased. Where a common intention of two or more persons to kill the deceased is established, the question as to who gave the fatal blow is wholly irrelevant and once the medical evidence shows that the injuries caused by one or the other of the accused was sufficient in the ordinary course of nature to cause death, that is sufficient to bring the case of the accused within the purview of S. 302/34, IPC." 40. From the above discussions have no^hesitation to conclude that the prosecution has established by cogent, convincing and unimpeachable evidence the intention of the appellant to commit the murder of Bhera. But this not being certain as to whose blow actually proved fatal, their conviction should be with the help of section 34, instead of section 302 simpliciter. 41. Regarding the conviction and sentence for the offence under Section 323, IPC no further discussion of the evidence is required. The prosecution case for this charge rests on the testimony of injured Anchi and Rukma eye-witnesses to the occurrence whose evidence we have already discussed in detail and have found to be trustworthy. About the injuries of Anchi there is corroborative evidence of Dr. Ramesh Purohit who had examined her on November 18, 1974, at 11.30 a.m. and noted 16 simple injuries on her person caused by blunt object. The injury report is Ex. P. 11. The Doctor has given the duration of the injuries to be 36 to 48 hours which fits in with the incident. 42. So far as the conviction and sentence of the appellants for the offence under section 394, IPC is concerned, there is force in the arguments of Mr. Bhim Raj Purohit, that the circumstances of the case, even if taken on their face value, do not establish the ingredients of section 394, IPC. 43. Section 394 deals with the cases of voluntarily causing hurt in committing robbery. On examining the evidence on record we have formed the opinion that the intention of the appellants was to commit the murder of Bhera. It is not a case in which the injuries might have been caused to Bhera with a design on the part of the appellants to rob him of his articles. Section 394, IPC is, therefore, not attracted in the present case. 44. It is not a case in which the injuries might have been caused to Bhera with a design on the part of the appellants to rob him of his articles. Section 394, IPC is, therefore, not attracted in the present case. 44. Apart from this the alleged recovery of turban, `Hansali', `Murkis', iron rings of`Jehi' and axe at the instance of Chokha in pursuance of the information furnished by him do not carry conviction. This appellant was arrested on November 22, 1974. Ex. P. 16, the information regarding the `Hansali' and turben is dated November 26, 1974 and Ex. P. 17, the information for `Murkis', iron rings of `Jehi' and the axe is dated November 27, 1974. `Hansali' and turben were recovered on November 29, 1974 vide memo Ex. P. 8. The recovery memo of `Murkis' and other articles is not dated but it could not have been earlier than November 27, 1974, the date of the information, in pursuance of which these i articles are said to have been recovered. There is no evidence regarding the identification of the articles in a parade. Mst. Anchi has of course stated that she had identified the articles before a munsiff Magistrate but who that Munsiff Magistrate was and in what manner the identification parade, even if any, was conducted, there is material on record to show. Under such circumstances, the offence under section 394, IPC is not made out against any of the appellants and their conviction for that offence is not sustainable. 45. Consequently, the appeal is partly allowed, the conviction and sentences of the appellants for the offence under section 394, IPC are set aside and they are acquitted of that charge. Their conviction for the offence under section 302, IPC is altered to one under section 302/34, IPC. The sentences awarded for this offence are maintained. The conviction and sentences awarded for the offence under section 323 IPC are upheld. Appellant Chokha is in custody. He will serve out the sentences awarded to him. Appellant Sona is on bail. His bail bonds are cancelled. The Chief Judicial Magistrate, Barmer, shall issue warrant to effect the arrest of the appellant Sona and send him to jail to suffer the sentences awarded to him.Appeal Partly Allowed. *******