JUDGMENT 1. - On April 13, 1982 we had partly allowed the appeal and quashed the conviction of the three accused-appellants under section 302, IPC, Instead the three appellants were convicted under Section 325/ 34, IPC., and each of them was sentenced to a period of imprisonment already undergone. It was ordered on that day that detailed reasons will follow. We now give the reasons for our judgment. 2. Deceased Khachera Singh son of Sahebsingh (DW 2) and one Gajadhar Singh were cousin brothers. Their common ancestor was one Naharsingh. Ex. D. 5 a copy of the plaint filed by Sahebsingh (DW 2) against Babusingh who claims to be the adopted son of deceased Khachera Singh, and others, gives out the relationship of the above named three persons. On April 28, 1977 at about 7 or 8 A.M., Khachera Singh deceased was in his fields situated in village Tomarkapura, P.S. Baseri (District Dholpur). Accused Chandrabhan went to Khachera Singh and asked him to pay the amount which he (Khachera Singh) owed him. Khachera Singh gave out that he had no money and he will pay as and when he was in a position to pay. Khachera went to the nearby Khalihan of Shyamu (PW 1) and accused Chandrabhan and the other two accused persons Narain Singh and Keshav also followed him. Accused Chandrabhan was unarmed, and he snatched lathi from khachera and gave a blow with it to Khachera. Thereafter, the three accused persons gave lathi blows to khachera and he fell down on the ground. Thereafter, they took the injured Khachera and later on his dead body was found lying in front of the house of the accused persons and of Khachera, which were nearby. The occurrence is said to have been witnessed by Shyamu (PW 1), his daughter Patri (PW 6), Lalaram (PW 2) and Harcharan (PW 11). Somebody gave a message on telephone in P.S. Baseri and the message was received by Jitendra Singh Head Constable (PW 12). He entered the report in the general diary of the police station and reached the spot. There he recorded the statement (Ex. p 17) of Shyamu (PW 1), which is the FIR in this case. A case was registered and the investigation was set in motion. He entered the report in the general diary of the police station and reached the spot. There he recorded the statement (Ex. p 17) of Shyamu (PW 1), which is the FIR in this case. A case was registered and the investigation was set in motion. Liaqat Ali Khan (PW 9) S.H.O., P.S. Baseri also received the information and reached the spot and took over investigation of the case from Jitendra Singh (PW 12). The dead body of Khachera Thakur was found lying on a cot outside the house of Narain Singh accused. 3. The dead body was sent for post-mortem examination, and Dr. Brijkishore Sharma (PW 5) the then Medical officer, primary Health Centre, Baseri conducted the autopsy, and noticed as many as 19 injuries on his person by blunt weapon, and injury No. 8 was a contusion of the left side of the face 3" x 1" extending vertically from temporal region of head towards the face with fracture of the zygomatic bone. Dr. Sharma also noticed that there was a well defined mark of ligature 1/2" broad on the neck just below the adam's apple of the thyroid cartilage and encircling the neck completely and horizontally, a mark of knot was also found on the left side of the neck. The base of the ligature mark was reddish with echymosed margins. There was extravasation of blood into the sub-cutaneous tissues and muscles under the ligature mark. Laceration of the adjacent muscles of the neck under the ligature mark was also present. In the opinion of Dr. Sharma, the cause of death was asphyxia due to strangulation. 4. All the three accused persons were arrested on April 28,1977. Lathis Articles 2, 3 and 4 were also recovered from the accused persons and were sealed, as they appeared to be blood stained. A shirt of accused Keshav Singh which also appeared to be blood stained was seized and sealed. A rope which is alleged to have been used in strangulation of Khachera was also recovered from near the dead body. The Director of State Forensic laboratory, Rajasthan, Jaipur vide this report Ex. p. 24 found that the shirt of Keshav Singh (parcel*c') Ex. 3 (marked by the Director) was negative for blood. A rope which is alleged to have been used in strangulation of Khachera was also recovered from near the dead body. The Director of State Forensic laboratory, Rajasthan, Jaipur vide this report Ex. p. 24 found that the shirt of Keshav Singh (parcel*c') Ex. 3 (marked by the Director) was negative for blood. The other articles including the lathis were found blood stained and the cuttings were sent to the Chemical Eaxminer, but his report is not available on the record. 5. The occurrence is said to have been witnessed by Shyamu (PW1), Lalaram (PW 2), Smt. Patri daughter of Shyamu (PW 6), Puran son of Smt. Patri (PW 7) and Harcharan (PW 11). Shyamu (PW 1) and Smt Patri (PW 6) also received injuries at the hands of the accused persons. Dr. Brijkishor Sharma on examining the injuries of Shyamu (PW 1) found that he had as many as three injuries. Injury No. 1 contusion on the back of the fore-arm appeared to be grievous and the other three were simple. Dr. Mohanlal (PW 8) took the x-ray of the left-fore-arm of Shyamu and X-ray (Ex. P, 15) showed that there was a fracture. On examining Smt. Patri (PW 6) Dr. Sharma (PW 5) found that she had two injuries which were simple and caused by blunt weapon. 6. On trial, the learned Addl. Sessions Judge convicted all the three accused persons under section 302, l.P.C. simpliciter, and sentenced each of the accused persons to imprisonment for life and to pay a fine of Rs. 200/- or one month's imprisonment. 7. We have heard Mr. A.K. Gupta learned counsel for the accused-appellants and the learned public prosecutor. 8. It is contended by Mr. Gupta that there is no satisfactory evidence that the accused are responsible for having caused the death of Khachera Thakur. According to Mr. 200/- or one month's imprisonment. 7. We have heard Mr. A.K. Gupta learned counsel for the accused-appellants and the learned public prosecutor. 8. It is contended by Mr. Gupta that there is no satisfactory evidence that the accused are responsible for having caused the death of Khachera Thakur. According to Mr. Gupta, the case of the prosecution cannot be relied upon and even if the Court placed reliance on the prosecution evidence, there being no evidence as to who from amongst the three accused persons caused the death of Khachera Thakur by strangulation, the accused persons could not have been convicted under section 303, IPC simpliciter, and also under section 302/34, IPC, as in the facts and circumstances of this case there was no evidence that the death was caused by any of the accused persons in furtherance of the common intention, and as such none of the accused persons can be convicted under section 302, IPC with the lid of Section 34, IPC. The learned public Prosecutor has supported the judgment of the learned trial court. 9. From the statement of Brijkishore Sharma (PW5), it can straight away be said that the deceased Khachera Thakur did not die as a result of any of the injuries caused by any of the accused by lathi. Dr. Sharma (PW 5) clearly stated that death has been caused by asphyxia due to strangulation. He further states that there was no fracture of the skull bones or showed petechial hemorrhage. Dr. Sharma found as many as 19 injuries by blunt weapon and injury No. 8, as already stated earlier, was fracture of the zygomatic bone, but it has not been stated any where that the deceased died as a result of any other cause than strangulation. We will later on advert as to whether the case of the prosecution that the accused persons took away Khachera after inflicting 19 injuries, and thereafter Khachera was found dead lying on a cot outside the house of the accused persons should be relied upon or not. But, for the present we will only say that the death of Khachera was not as a result of any of the injuries allegedly caused by the accused person and was as a result of strangulation, the act of strangulation of the hands of the accused persons not having been witnessed by any body. 10. But, for the present we will only say that the death of Khachera was not as a result of any of the injuries allegedly caused by the accused person and was as a result of strangulation, the act of strangulation of the hands of the accused persons not having been witnessed by any body. 10. So far as puran (PW 7) is concerned, to us it appears that he actually did not witness the occurrence, so also for reasons which we shall state hereinafter, we are not able to persuade ourselves that Hardharan (PW 11) also witnessed the occurrence. The learned Additional Sessions Judge has placed reliance on the evidence of these witnesses also. PW 7 Puran is the son of Smt. Patri (PW 6), who is the daughter of Shyamu (PW 1). A look at Ex. P. 17 will show that there is no mention in it that Puran also witnessed the occurrence. All that has been mentioned in this is that Puran was sent to Timasia to inform about the incident. Puran is a boy aged about 13 years. In his police statement (Ex. D. 4) with which he was confronted he gave out that he was present at his house. He did not disclose to the police that in the occurrence his maternal grand-father Shyamu (PW 1) also intervened and he received injuries. He clearly admitted in his cross-examination that the reason for this omission was that when his maternal grand-father Shyamu intervened and received injuries, he (Puran) was not present at the spot. Harchand (PW 11) was not examined by the police during the investigation of the case and no explanation is coming forward on behalf of the prosecution as to why he was not so examined. He is the real elder brother of Shyamu (PW 1). He states that when he reached the threshing floor (Khalihan) of Shyamu (PW 1), the beating had already taken place. He admits that because of an incident in between Shyamu, his brother and Gajadhar in which Gajadhar had received injuries, Shyamu was inimical with Sahebsingh brother of Gajadhar. No doubt, his name finds mention in the F.I.R. (Ex. He states that when he reached the threshing floor (Khalihan) of Shyamu (PW 1), the beating had already taken place. He admits that because of an incident in between Shyamu, his brother and Gajadhar in which Gajadhar had received injuries, Shyamu was inimical with Sahebsingh brother of Gajadhar. No doubt, his name finds mention in the F.I.R. (Ex. P. 17) wherein it is mentioned that Har charan also arrived at the spot & witnessed the occurrence, but it is also mentioned therein that Harcharan (PW 11) along with others came to the spot on receiving the information in the village. In the facts of this case, therefore, it can be said that as a result of non-examination of Harcharan (PW 11) during the investigation of the case, the accused persons have been deprived of a valuable right to cross-examine Harcharan (PW 11) with his previous statement. He being the real brother of Shyamu, we are of the opinion that for the reasons already stated earlier, it will not be safe to place reliance on his statement. 11. Even if we exclude the evidence of Puran (PW 1) and Harcharan (PW 11), there still remains the evidence of eye-witnesses Shyamu (PW 1), Smt. Patri PW 6 and Lalaram (PW 2). Shyamu and Patri did not even belong to the caste of Khachera deceased and to us they appear to be independent witnesses. `Khalihan' of Shyamu and the fields of khachera deceased were nearby. As already stated earlier, both Shyamu (PW 1) and Smt. Patri (PW 6) received injuries in the same occurrence, and the presences on their person clearly goes to show that they were the eye-witnesses of the occurrence, the occurrence having taken place in the Khalihan of Shyamu (PW 1). Shyamu (PW 1) states that Khachera was sitting in his fields, and first accused Chandrabhan came there. Accused Chandrabhan at the time of occurrence which took place in April, 1977, who was aged about 17 years, came unarmed to the fields of Khachera Thakur where he was sitting. According to Shyamu (PW 1) Chandrabhan accused asked Khachera to pay his dues and Khachera replied that he had no money and will pay afterwards. Chandrabhan accused insisted for payment and Khachera went to the`Khalihan'of Shyamu (PW 1). Chandrabhan accused followed him there. According to Shyamu (PW 1) Chandrabhan accused asked Khachera to pay his dues and Khachera replied that he had no money and will pay afterwards. Chandrabhan accused insisted for payment and Khachera went to the`Khalihan'of Shyamu (PW 1). Chandrabhan accused followed him there. Shyamu (PW 1) further states that Khachera was having a lathi which was snatched by Chandrabhan from him, and Chandrabhan gave a blow on the head of Khachera. His father states that the other accused Narain and Keshav brothers if Chandrabha also arrived with lathis and gave lathi blows to Khachera. When he and his daughter Mst. Patri intervened, they too were beaten. Thereafter, Lalaram arrived and the accused persons were standing at distance and seeing that Khachera was still alive, they came and lifted Khachera and took him away. Smt. Patri (PW 6) has also made a similar statement. According to her, after inflicting lathi blows to Khachera the accused persons went and sat by the side of the Mend (boundary wall of the fields). Then the accused persons took away Khachera from there. Lalaram (PW 2) did not actually see the accused persons inflicting any blow to Shyamu and reached the spot when Shyamu was lying on the ground. He also does not belong to the caste of deceased Khachera or the accused persons. He is having his fields nearby the fields of Shyamu (PW 1). He too has supported the statements of PW 1 Shyamu and PW 6 Parti. We have already referred earlier to the statement of Dr. Brijkishore Sharma (PW 5) and to the statement of Mohanlal (PW 8). It can be said from their statements that the deceased Khachera received as many as 19 injuries by lathis, one injury No. 8 was grievous being a fracture of zygomatic bone and the other injuries were simple. Shyamu (PW 1) and Smt. Patri (PW 6) also received injuries and injury of Shyamu (PW 1) was a grievous injury. It can, therefore, be said on the evidence on record that the deceased and the injured persons received injuries at the hands of accused persons. But so far as the death of Khachera Thakur is concerned, it was as a result of strangulation. As already slated earlier, there is no direct testimony that the accused persons are responsible for having caused the death of Khachera by strangulation. But so far as the death of Khachera Thakur is concerned, it was as a result of strangulation. As already slated earlier, there is no direct testimony that the accused persons are responsible for having caused the death of Khachera by strangulation. The learned Additional Sessions Judge taking into consideration the background that the accused persons had taken Khachera towards their house, and that thereafter Khachera was found dead has concluded that there was no time gap in between the earlier incident and finding of the dead body of Khachera, and as such the accused persons are responsible for causing his death. There was no previous enmity in between deceased khachera on the one hand and the accused persons on the other. Deceased Khachera and Saheb singh (DW2) who is the father of the accused persons, were cousin brothers being descendants of a common ancestor Naharsingh. Chandrabhan accused did not go armed when he asked Khachera to pay his dues and there is clear evidence that he was unarmed, When Khachera refused to repay the loan; he snatched the lathi which Khachera was having, and then gave a blow by it on the head of Khachera. As per the case of the prosecution, the other two accused persons; elder brothers of Chandrabhan, Narain and Keshav also arrived thereafter, and are said to have inflicted blows. Thus, it cannot be said that the intention of the accused persons was to cause the death of Khachera and in furtherance of the common intention lathi bows were inflicted to him. Common intention can no doubt arise at the spur of the moment and because as many as 19 lathi blows were given by three accused to deceased khachera, and deceased khachera received one grievous injury, and Shyam (PW1) also received one grievous injury, all that can be said is that a common intention to cause grievous injury developed at the spur of the moment and all the accused persons can be held liable only u/s 326, IPC with the aid of Section 34, IPC. The question is, as to whether on the material on record the accused persons are responsible under Section 302 or Section 302/34, IPC for having caused the death of Khachera. The question is, as to whether on the material on record the accused persons are responsible under Section 302 or Section 302/34, IPC for having caused the death of Khachera. Accused persons had already caused as many as 19 injuries and if they intended to cause the death of Khachera, they could have achieved their object at the spot by giving a few more blows. There were already 4-5 blows on the vital part, but they did not do it. They are said to have taken away Khachera after causing injuries to him. The statement of Babusingh (PW3) that he saw that Khachera was inside the house, all the accused cannot be held responsible in view of the material contradictions in his evidence in the Court from his police statement. Thus there is no evidence that all the three or any of the accused persons after having taken away deceased Khachera. who was injured and received as many as 19 injuries, caused the death of Khachera by strangulation. There is no evidence as to what transpired after Khachera had been lifted and taken away by the accused persons from the`Khalihan'of Shyam (PW1) We have already said earlier that the intention of the accused persons was not to cause the death on a petty matter of some dues, which khachera owed to Chandrabhan could not have led the accused persons to cause the death of Khachera. The dead body was found lying on a cot outside the house of the accused persons, and the house of Khachera deceased was not far off. Thus, even from the circumstances, it cannot be said that any of the accused persons, and if so, which of them caused the death of Khachera by strangulation. Thus, none of the accused persons to our can be convicted u/s 302, IPC read with Section 34, IPC. 12. We have already stated earlier that Chandrabhan accused at the time of occurrence was aged about 17 years. At the time, his statement under section 313, Cr. PC. was recorded, he gave out his age as 18 years and the estimate of the court of his age was 19 years. He has been in Jail for a few months; The other two accused persons were arrested on April, 28, 1977 and are since then in Jail. At the time, his statement under section 313, Cr. PC. was recorded, he gave out his age as 18 years and the estimate of the court of his age was 19 years. He has been in Jail for a few months; The other two accused persons were arrested on April, 28, 1977 and are since then in Jail. They have thus already under gone about five years imprisonment, Taking the age of accused Chandrabhan into consideration, and the fact that the other two accused Narain and Keshav have already undergone about five years rigorous imprisonment, we are of the opinion that the sentence already undergone shall meet the ends of justice. 13. We therefore, partly allow the appeal, we set aside the conviction of the three accused persons under section 302, IPC and instead we sentence each of the accused persons Chandrabhan, Narain and keshev Singh under section 325/34, IPC and sentence them each to imprisonment already undergone.Appeal Partly Allowed. *******