JUDGMENT 1. - Both the above criminal appeals are directed against the judgment of Sessions Judge, Tonk, dated 29th April, 1978, whereby the accused appellants have been convicted and sentenced in the following manner : Mohommad Umar - u/s 302 I. P. C. sentenced to imprisonment for life. u/s 323/34 I.P.C. sentenced to rigorous imprisonment for 13 days and a fine of Rs. 100/-, in default 5 days rigorous imprisonment. Mst. Jamila - u/s 307 I.P.C. sentenced to two years simple imprisonment and a fine of Rs. 503/-, in default three months' imprisonment. u/s 323/34 I.P.C. sentenced to a fine of Rs. 100/-, in default of 5 days' imprisonment. 2. Criminal Appeal No. 336/78 is a represented appeal while criminal appeal No. 538/78 has been sent through Jail as such the same are disposed of by one single order. 3. Brief facts giving rise to these appeals are that an F.I.R. was lodged in the Police Station, Malpura, by Mehboob Ali PW 1 on December 7, 1977, at about 1.10 p.m. It was alleged that he and his father Aladin Shah had gone for sowing crop in their field at about 3.30 p.m. At this time accused Mohommad Umar's wife Mst. Jamila and Mohinuddin s/o Mohammad Umar attacked them with axes, as a result of which the informant sustained injuries on his head and legs. His father Aladin Shah also sustained 5-5 axe blows on his head and was in precarious condition. Though this report was a written one but names of any witness were not mentioned in it. However, on interrogation by police names of Shri Niwas and I Narain were mentioned as having seen the occurrence and that one Shri Kishan name on the spot subsequently. Injuries on the body of informant were also noticed, The police registered a case for offences under sections 807 and 447 I P.C. and investigation was commenced. The injured Aladin was taken to Government Hospital, Malpura and he was advised to be taken to Jaipur, looking to the seriousness of his injuries. Aladin, however, succumbed to the injuries while on way to Jaipur and as such he was brought back. An autopsy was conducted on the body of aladin by Dr. Pawanjit Grover P.W 7, who noticed the following external injuries: (1) One tom (lacerated) wound 1" x 1/4" on the rear side of the left ear which is bone deep. Aladin, however, succumbed to the injuries while on way to Jaipur and as such he was brought back. An autopsy was conducted on the body of aladin by Dr. Pawanjit Grover P.W 7, who noticed the following external injuries: (1) One tom (lacerated) wound 1" x 1/4" on the rear side of the left ear which is bone deep. (2) Torn lacerated wound 1" x 1/4" on the left side of the frontal and parietal bones. (3) One bruise 4" x 11/2" on the right side of the chest. 4. On internal examination, fracture of the frontal bone 1" x ⅛" x 3" above - the left ear was detected. The membranes of the brain were found to be congested j ad there was blood from the nose and ear. Injuries on Mehboob Ali informant j ;ere also examined and following four injuries were found on his person. (1) Lacerated wound 11/2" x 1/4", 4" above the left ear on the parietal region. (2) Contusion 31/4" x 1" on the left wrist. (3) Haemotoma 1" x 1" on the left parietal region, 1" above the left ear. (4) Contusion 2" x 1/2" on the left wrist 21/2" below the elbow. 5. It is pertinent to mention at this stage that though the injuries found were lacerated wounds and contusions but the doctor mentioned that such injuries could be caused by sharp edged weapon. After usual investigation a challan was filed in the court of Munsif and Judicial Magistrate, Tonk, from where the accused persons were committed for trial to Sessions Court, Tonk. Learned Sessions Judge framed charges under Sections 302, 323 and 447 I. P. C. The accused persons pleaded not guilty to the charges and claimed to be tried. The prosecution in support of its case examined 12 witnesses in all. Learned Sessions Judge after taking into consideration the prosecution evidence convicted and sentenced the accused persons in the manner indicated above. Accused Mohinuddin was convicted for offence under Section 32 IPC and being 14 years of age, was given the benefit of Probation of Offenders Act. Mohammad Umar and Mst. Jamila have filed these appeals. It is also relevant this stage that when accused Mohinuddin was sent to judicial custody several injuries were detected on his body and as such he was also sent for medical examination. Mohammad Umar and Mst. Jamila have filed these appeals. It is also relevant this stage that when accused Mohinuddin was sent to judicial custody several injuries were detected on his body and as such he was also sent for medical examination. The doctor found that he ought to have been admitted as an indoor patient and as such he was admitted as an indoor patient in the hospital. The police, however, did not mention about any injuries of Mohinuddin in the papers submitted by them under Section 173 Cr. P. C. 6. Shri Dave, learned counsel for the accused appellants, contended that there was no reliable, cogent and independent evidence on record to substantiate the prosecution story. In the present case, the learned Sessions Judge himself has % acquitted Mst. Jamila under Section 302 IPC and has expressed his doubt about the correctness of the statement of PW 1 Mehboob Ali, as regards the injuries sustained by Aladin at the bands of Mst. Jamila. It was further submitted that there was no independent corroboration of the statement of PW 1 Mehboob Ali for holding the accused Mohammed Umar guilty for offences under Section 302 I. P. C. No witnesses were mentioned in the F. I. R. lodged by Mehboob Ali and the names of Shri Niwas and Narain were disclosed on interrogation made by the Police. During the trial two eye witnesses Radha Kishan and Ram Niwas have been introduced who were not named as eye witnesses even on interrogation by the Police. Apart from Mehboob Ali, who is admittedly an interested witness there is no other independent evidence to support the prosecution case. The testimony of Mehboob Ali cannot be relied as the learned Sessions Judge himself has acquitted the appellants undo Section 447 IPC and in this regard has not placed reliance on the statement oi Mehboob Ali regarding the place of occurrence. He has been disbelieved with regard to the infliction of injuries on the body of Aladin at the hands of Mst. Jamila. This injuries attributed to the accused appellants are not corroborated by medical evidence The injuries on the person of Mohinuddin has neither been denied nor explained. If is further argued that according to Mehboob Ali, one of the injuries on the head Aladin was inflicted by Mst. Jamila. This injuries attributed to the accused appellants are not corroborated by medical evidence The injuries on the person of Mohinuddin has neither been denied nor explained. If is further argued that according to Mehboob Ali, one of the injuries on the head Aladin was inflicted by Mst. Jamila and according to the medical evidence two heal injuries were the cause of death of Aladin and as such Mohammad Umar cannot held guilty for offence under Section 302 IPC. 7. On the other hand, learned Public Prosecutor supported the judgment of this learned Sessions Judge and contended that the evidence of Mehboob Ali finds corroboration from the medical evidence and the statements of Ram Niwas PW1 Radha Kishan PW 5 and Narain PW 6. 8. According to PW 7 Dr. Pawanjit Grover only two lacerated wound were found on the parietal region of Aladin. He further stated that the cause of deal was fracture of frontal bone. He has further stated that the above injuries could have been caused by a weapon like an axe. 9. We have considered the arguments advanced by learned counsel for both parties and have also gone through the record of the case.PW 1 Mehoob Ali has stated that he reached in the village at 10 a. in pursuance to a letter received by him on 5th December, 1977 from his father. He immediately went to the field, At this it time Mohinuddin was standing in the field Mohinuddin tried to run away after seeing him. He caught hold of Mohinuddin in the corner of the field by moving on a cycle. When he asked Mohinuddin as lo why he was standing in the field, Mohinuddin said that his father had sent him to see whether anybody was sowing in the field. He told Mohinuddin as to why he came on which he told that his father would answer it. Mehoob Ali further stated that he told Mohinuddin for making a report in the police. Soon thereafter his father came from the village and he told him that Mohinuddin was standing in the field and when be wanted to run away he caught hold of his cycle and was detained. However, at the asking of his father to release him as he was a minor, he released Mohinuddin. Soon thereafter his father came from the village and he told him that Mohinuddin was standing in the field and when be wanted to run away he caught hold of his cycle and was detained. However, at the asking of his father to release him as he was a minor, he released Mohinuddin. Mehboob Ali lurcher stated that he want to call Ram Kishan and then said Ram Niwas for cultivating the field. He brought Ram Niwas and Bhagote. On that day the field was sown up to 3.30 p.m. At that I time Mohammad Umar, Mst. Jamila and Mohinuddin came on the spot hurling Abuses. Mst. Jamila was ahead of all of them and armed with an axe. After her was Mohammad Umar armed with a lathi and Mohinuddin was also with him armed with a lathi. Soon after coming there the accused persons gave abuses and Mst Jamila inflicted a blow on the right hand side of the head of his father by the axe His father sat down due to the injuries inflated by the axe. He ran towards his father when the accused persons wanted to inflict another blow by the axe he caught hold of the axe. At this stage Mohammad Umar, and Mohinuddin also started beating him. Mehboob Ali further stated that he received one injury in the leg, another in the back and the third in the head. Thereafter the axe fell down from his hand. Mst. Jamila then lifted the axe and inflicted two injuries on his head by the axe. He cried and on hearing this his father tried to save him. At that time the axe was in the hand of Mohammad Umar and since his father came to save him J Mohammad Umar inflicted blow by axe on the right and left side of the head of his father. Thereafter his father fell down and Mohammad Umar inflicted some more injuries. According to Mehboob Ali the incident was seen by Ram Niwas and Bhagiratha Gujarat, who were in the field. Narain Gujar and his three halis who were in the adjoining field had also witnessed the incident. Thereafter his father for became unconscious. He lifted his father and brought him to Tordi Sagar on a lbicycle and got him seated in a bus for taking to Malpura. Narain Gujar and his three halis who were in the adjoining field had also witnessed the incident. Thereafter his father for became unconscious. He lifted his father and brought him to Tordi Sagar on a lbicycle and got him seated in a bus for taking to Malpura. He then left his father I in Malpura Hospital and went to the police station, Mehboob Ali further stated I that he lodged a written report Ex. P. I in the P dice Station and the police had registered the F. I. R vide Ex. P2. Mehboob Ali further stated that the doctor In charge at Malpura advised to take his father to Jaipur and his father succumbed to the injuries near village Nibada in the way. In view of this he did not go to Jaipur and brought the dead body of his father to Malpura. In cross-examination Mehboob Ali stated that it was wrong that he caught hold of Mohinuddin and tied him to a tree. He also denied that he gave any beating to Mohinuddin, and has broken his hand. He admitted portion A to B in Ex. P2 that at the time of incident Shri Niwas and Narain Patel were present, who bad witnessed the incident from a distance. He also admitted portion A to B in Ex. D1 that Ram Niwas and Radha Kishan had come on the field and had started sowing. On being confronted that in the court statement he had named Ram Niwas and Bhagote, Mehboob Ali stated that his statement given before the Police naming Ram Niwas and Radha Kishan was correct. He further stated that he cannot explain as to why the Police did not mention the names of Ram Niwas and Radha Kishan on the buck of Ex. P1PW 4 Ram Niwas stated that he was sowing in his field at about 10 am At that time Mehboob Ali came to him and asked to accompany. He took Radha Kishan with him and went to the field of Mehboob and were sowing the field upto 3.00 p.m. When they were sowing the field Mehboob Ali and Mullaii (Aladin) were also sitting. At about 3 p.m., Mohammad Umar, his wife and son came there. At that time Mohammad Umar had an axe in his hand and the other two accused persons had lathis. At about 3 p.m., Mohammad Umar, his wife and son came there. At that time Mohammad Umar had an axe in his hand and the other two accused persons had lathis. Ram Nivas further stated tbat he had seen the accused persons inflicting injuries on Mehboob and his father by axe and lathis. First of all Mst. Jamila inflicted an injury by axe but thereafter he could not see to who took the axe and inflicted injuries by which weapon. Mullaji had received injuries on the head and the chest. In the beginning he had seen Jamila inflicting an axe blow on the head of Mullaji. He did not know as to who inflicted injuries on Mehboob as they started grappling with each other. Narain was sowing in his own field. Thereafter Narain, his partner Bhagote, Ram Karam Balai and Kishore also came. In the cross-examination he admitted that the fact was that who they reached on the spot the accused persons had already dispersed after giving beating. He further admitted that when he and Radha Kishan went near Mehboob and Aladin both were lying unconscious. After sometime Mehboob regained consciousness and he had no idea whether the accused party had also received any injury as they were at a distance from the accused persons. It was only when they reached on the spot that they came to know about the injuries on Aladin and Mehboob.PW 5 Radha Kishan stated that he along with Ram Nivas had gone in the field of Mullaji. Ram Niwas had taken share from Mullaji. They were ploughing in the field upto 3 p.m. Thereafter they went for drinking water in the field of Narain. He further stated that he did not see as to what was in the hands of the accused persons. There was a litigation between them but he did not see as to who gave beating to whom. The witness was declared hostile and was thereafter cross-examined by the Public Prosecutor.PW 6 Narain stated that he was sowing in his own field. Ram Nivas, Bhagiratha were also with him. Radha Kishan and Ram Niwas were ploughing in the field of Mullaji. Mohammad Umar, his wife and son came in the field of Mullaji. Mohammad Umar and his son had lathis with them and the wife of Mohammad Umar had an axe. Thereafter altercation started. Ram Nivas, Bhagiratha were also with him. Radha Kishan and Ram Niwas were ploughing in the field of Mullaji. Mohammad Umar, his wife and son came in the field of Mullaji. Mohammad Umar and his son had lathis with them and the wife of Mohammad Umar had an axe. Thereafter altercation started. Mehboob and his father were given beating by all the three accused. Injures were inflicted by axe and lath is. He had seen injuries on the chest and head of Mullaji and on the head reffed Mehboob. All the three accused then ran towards the village. Mullaji and Mehoob then came near him. Mullaji was brought by Mehoob. Mullaji at that time was semiconscious and water was given to him. Thereafter Kishna Gujar tool Mullaji to Tordi on his cycle. In the cross-examination he admitted that he had seen the occurrence from his field but he had not gone on the spot where the incident had taken place. He also admitted that he came to know about the injuries only when the injured person came near him but he did not see as to which accused was inflicting injuries with which weapon. He also admitted that the place of occurrence from his field was at a distance of 3 Jariba.PW 7 Pawanjit Grover, conducted auto of the dead body of Aladin and had found the injuries as already mentioned above. In the postmortem report hi had mentioned two lacerated wound on the body of Aladin but in the statement if the court he stated that these injuries could be inflicted by a weapon like an axe, According to Dr. Grover the cause of death was the fracture of frontal bone and profuse bleeding. He had also examined the injuries of Mehboob Ali which were simple in nature. 10. A perusal of the above evidence goes to establish that the accused persons had gone on the spot and had inflicted injuries on Aladin and Mehboob Ali. Learned Sessions Judge has arrived at a finding that the accused persons had no common intention to commit murder and has convicted Mohammad Umar under section 302 IPC simplicitor and Mst. Jamila under section 307 IPC. According to Mehboob Ali, the first injury on the head of Aladin was inflicted by Mst Jamila by an axe and subsequently two injuries were inflicted by Mohammad Umar by an exe. Jamila under section 307 IPC. According to Mehboob Ali, the first injury on the head of Aladin was inflicted by Mst Jamila by an axe and subsequently two injuries were inflicted by Mohammad Umar by an exe. According to the post-mortem report and the evidence of Dr. Grover on two lacerated wounds have been found on the head of Aladin. Thus, inflicting of any injuries by a sharp weapon like an axe is ruled out. PW 5 Radha Kishan has been declared hostile. PW 4 Ram Nivas states that he had seen only one injury inflicted by Mst. Jamila by an axe. In the cross-examination he admitted that be had reached on the spot after the accused persons had dispersed and as inch it can not be ascertained his statement that who was responsible for inflicting the fatal injury on the head of Aladin. So far as Narain PW 6 is concerned, he has clearly stated that all the three accused had inflicted injuries but cannot say which accused inflicted with what weapon. He has also admitted that be had seen the incident from a distance of 3 Jaribs. It has also come in the evidence of Mehboob Ali that he had caught hold of Mohinuddin and it has been proved from the statement of DW 1 Rajendra Singh that Mohinuddin was sent for treatment on 14th December, 1977 to hospital, Tonk, and became back on 20th December, 1977 after treatment. DW 2 Beni Prasad Chaturved, Medical Jurist Sadat Hospital, Tonk, has also stated that Mohinuddin was sent for treatment by Jail Authorities on 14th December, 1977. Mohinuddin was admitted for treatment and X-ray and plaster of left hand was done. Mohinuddin was relieved on 20th December, 1977 and he was making the statement on the basis of record. Mohinuddin has also appeared as PW 3 and has stated that he was given beating by Mehboob. 11. A perusal of the above circumstances clearly rules out any intention on the part of the accused persons to cause death of Aladin. Aladin is admittedly the father of accused Mohammad Umar and there is nothing on the record to show that the accused persons had any grouse against Aladin so as to cause his death. 11. A perusal of the above circumstances clearly rules out any intention on the part of the accused persons to cause death of Aladin. Aladin is admittedly the father of accused Mohammad Umar and there is nothing on the record to show that the accused persons had any grouse against Aladin so as to cause his death. The incident took place at the spur of the moment and we are in agreement with the learned Sessions Judge that the accused persons had no common intention to cause death of Aladin from the evidence of the prosecution witnesses as discussed above it cannot be held that Mohammad Umar inflicted the fatal blow and as such he cannot be convicted under Section 302 IPC. Even according to the evidence of Mehboob Ali the first injury was inflicted by Mst. Jamila by an exe, but the Sessions Judge himself has acquitted her of the charge under Section 302 IPC. It cannot be said that Mst. Jamila inflicted any injury so as to hold her guilty under Section 307 IPC. In the facts and circumstances mentioned above Mohammad Umar and Mst. Jamila can at the most be held guilty for offence under Section 325 read with section 34 IPC. Mohammad Umar is already in jail since 1978. 12. In the result, we partly allow these appeals. The conviction and sentence of Mohammad Umar under section 302 I. P. C. is set aside and he is convicted under Section 325 read with Section 34 I. P. C. His conviction under Section 323 read with Section 34 I. P. C. for inflicting injury on Mehboob Ali is also maintained. He has already remained in Jail for more than 5 years as such no other sentence is required to be given except the period already undergone by him. His sentence of fine of Rs. 100/- under section 323 read with section 34 I. P. C. is also set aside and he is ordered to be released forthwith, if not required in any other case. 13. So far as Mst. Jamila is concerned, her conviction and sentence under Section 307 I.P.C. is set aside and she is convicted under Section 325 read with Section 34 I. P. C. She is sentenced to two years simple imprisonment. Her sentence of fine of Rs. 100/-under section 323 read with section 34 I.P.C. is set aside. 13. So far as Mst. Jamila is concerned, her conviction and sentence under Section 307 I.P.C. is set aside and she is convicted under Section 325 read with Section 34 I. P. C. She is sentenced to two years simple imprisonment. Her sentence of fine of Rs. 100/-under section 323 read with section 34 I.P.C. is set aside. She is a woman and it is her first offence as such she is granted benefit of Probation of Offenders Act. She would furnish a security in the sum of Rs. 2,000/-for maintaining peace and good behaviour for a period of one year. On furnishing such bond within a period of two months from today she would not be required to undergo the substantive term of imprisonment. *******