S.S. BYAS, J.—Accused Lal Chand, Manphool, Net Ram and Bhadar were convicted under sections 302 and 342, I P.C. and each was sentenced to imprisonment for life on the first and three months rigorous imprisonment on the second count by the learned Additional Sessions Judge (1), Hanumangarh vide his judgment dated 21.9.78. Both the sentences were directed to run concurrently. They have come-up in appeal to challenge their conviction and sentence. 2. Succinctly stated, the prosecution case is that deceased-victim Birbal Jat was the real nephew (brothers son) of accused Lal Chand. Accused Manphool and Netram are the sons of accused Lal Chand. Accused Bhadar is also their near relative. They all are residents of village Dhilkijatan P.S. Nohar district Ganganagar. Birbal had two daughters Kamla and P.W, 2 Krishna. Accused Lal Chand wanted that they should be married to the brothers-in-law of his another son Nathu. Birbal did not carry out his wishes and got his daughters married to some other persons in village Rampuriya. This sowed the seeds of discordance between Birbal and the accused persons. The accused started harbouring the ill-will against Birbal. At about 8.00 or 9.00 A.M. on 22.4.77, Birbal was going to his field. When he reached near the Nohara of Manphool, accused Netram and Bhadar came from the opposite direction with Lathies in their hands. They challenged Birbal and cried aloud that they would finish him. Birbal, apprehending danger, on towards South in a street. Accused Manphool and Lal Chand came out from their house with Lathies in their hands. They encircled Birbal Meanwhile accused Netram and Bhadar also reached there. All the four accused opened an on-slaught on Birbal and struck blows to him with their Lathies. Birbal fell down out-side the house of Ramswaroop, as shown in site plan Ex. P. 13. Accused continued to strike blows to him. Smt. Krishna (PW 2) who was going to throw rubbish, raised cries PW 3 Surjaram, PW 4 Inder Raj, PW 6 Chhelu Ram, Hansraj and Ram Swaroop cams there. They tried to intervene. PW 4 Inder Raj, in his efforts to protect the victim, received an injury on his person. The accused dragged Birbai and took him to their house. There they dropped him in a roofless Chhapper, shown by mark B in site plan Ex. P. 1. They tried to intervene. PW 4 Inder Raj, in his efforts to protect the victim, received an injury on his person. The accused dragged Birbai and took him to their house. There they dropped him in a roofless Chhapper, shown by mark B in site plan Ex. P. 1. Birbals mother Smt. Mathuri (PW 6) and his wife Smt. Bhuri, on hearing the noise, reached there. Mst. Mathuri tried to protect her son but she too was not spared. She also sustained some injuries. The accused continued to strike blows to Birbai there also in the roofless Chhapper. Thereafter they dispersed away taking their lathies with them. PW3 Surjaram left the place, reached Police Station Nohar at about 11.15 A.M. and verbally lodged report Ex. P. 8 of the occurrence. The police registered a case under sections 307/34 and 342, I.P.C. and proceeded with investigation. Birbai become unconscious on the spot and there was profuse bleeding from his wounds. He was taken to his house by Inderraj, Chhaluram and others. The Investigating Officer Umed Singh (PW 7) arrived on the spot on the same day and sent Birbai to Nohar Hospital, where his injuries were examined. The Investigating Officer inspected the site and seized the blood-stained soil. The injuries of Bitbal were examined at Nohar Hospital and from there he was taken to Bhadra where he was admitted for treatment in the Government Hospital. His injuries were again examined at about 8.10 P.M. by PW 1 Dr. J.P. Swami, the then Medical Officer Incharge, Government Hospital, Bhadra. He found the following injuries on the person of Birbai :— 1. One lacerated wound 3-/12" x 1/4" skin and muscle deep. Bone is exposed on the scalp on right fron to parietal bone obliquely. 2. One lacerated wound 3-1/2" x 1/4" skin and muscle deep, bone is exposed on the scalp, on left fronto parietal region horizontal. 3. One lacerated wound 2" x 1/2" cartilage exposed left pinna from near the helix upto the lobule. 4. One big bruise with swelling 4" x 2" superficial with swelling on the dorsum of left wrist with deformity. 5. One superficial abrasion 1/4" x 1/4" on the left malareminance. 6. One bruise with abrasion superficial margins not well defined on the left shin on the centre. 7. 4. One big bruise with swelling 4" x 2" superficial with swelling on the dorsum of left wrist with deformity. 5. One superficial abrasion 1/4" x 1/4" on the left malareminance. 6. One bruise with abrasion superficial margins not well defined on the left shin on the centre. 7. Four bruises each 6" to 8" x 1/2" superficial crossing each other on the back across the vertebra at the level of the r/12 to L/l. 8. One bruise superficial margins not well defined on the dorsum of right wrist. 9 One bruise with abrasion 4" x 1/2" superficial on left gluteal region posterior aspect 4" below posterior iliac supine. 10. One bruise with abrasion 2" x 1/2" superficial left gluteal region oblique. 11. One bruise with abrasion 2" x 3/4" superficial on right thigh poste-rial lateral on the upper l/3rd. Injuries No. 1,2,3 and 4 were classified as grievous and the remaining as simple. The injuries were stated to have been caused by some blunt object like lathi. The duration of the injuries was held to be within 12 hours. The injury report prepared by Dr. Swami is Ex P. 1. He also took the skiagram of parietal region of the victims body and found both parietal bones, temporal and occipital bones fractured. The x-ray plates are Ex. P. 2 and Ex. P.3. Despite medical help. Birbai did not survive and succumbed to the injuries at about 2 10 P.M. on 23.4.77 in the hospital. The police added section 302, I.P.C. during investigation. The post-mortem examination of the victims deadbody was conducted at about 5.30 P.M. on the same day by the same Doctor Swami (PW 1). He noticed the following injuries on the victims deadbody:— External as stated in injury report Ex. P. 1. Internal Cranium and spinal cord—there was big haemotoma below the fronto-occipital muscle and below the skin of the scalp. The scalp bone is fractured starting from left temporal going across the interparietal junction and then to right temporal and then to the left occipital bone with depression. The skull is fractured on the top not at the base. Membrance were congested and having areas of big heamorrhages Brain lacerated at both the parietal lobes near the great centrat longitudel sinus the left and right occipital lobes were also lacerated with the base with big haemorrhagic areas and fluid blood. The skull is fractured on the top not at the base. Membrance were congested and having areas of big heamorrhages Brain lacerated at both the parietal lobes near the great centrat longitudel sinus the left and right occipital lobes were also lacerated with the base with big haemorrhagic areas and fluid blood. Thorax- Both the lungs were pale and on cutting air comes out. Heart-right side full of fluid blood, left side empty. Large vessels- full of fluid blood. Muscles- bones and joints-the epicranium and fronto occipital is muscle were torn badly alongwith the muscles of the dorsum of left wrist and band with great.-haemotomas. The scalp bones were fractured at the top with depressions. The metacarpal of 1st and 2nd fingers were fractured at the shaft in the centre with discloaation of metacarporal phalangeal joint of the same fingers on left side. 3. Dr. Swami was of the opinion that the cause of death was brain laceration, haemorrhage brain compression, consequent shock, respiratory and circulatory failure due to neuronal injury. The postmortem examination report prepared by him is Ex. P. 4. The accused persons were arrested and in consequence of the informations furnished by some, lathies were recovered, some of which no chemical examination-were found stained with human blood. The blood-stained clothes of the deceased-victim were seized and sealed. Human blood was detected on them on Chemical Examination. It may be mentioned that accused Lal Chand was arrested on 25-4-77. At the time of his arrest a scratch was found on his left ankle below the knee. After when the investigation was over, the police presented a challan against the accused persons in the Court of Munsif and Judicial Magistrate, Nohar, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 302/34 and 342, I.P.C. against all the four accused persons, to which they pleaded not guilty and faced the trial. Accused Lal Chand, in his statement under section 313, Cr.P.C, stated that he was sitting at his house and the deceased-victim Birbal came there with a lathi in his hand. Birbal struck him five or seven blows with his lathi. Seeing this, his son Nathu (not an accused) came with a lathi and struck blows with it to Birbal in order to ward-off further beating. The remaining three accused denied their presence on the spot. Birbal struck him five or seven blows with his lathi. Seeing this, his son Nathu (not an accused) came with a lathi and struck blows with it to Birbal in order to ward-off further beating. The remaining three accused denied their presence on the spot. They stated that they have been falsely roped in. During trail, the prosecution examined eight witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Judge found no merit in the defence put forward by the accused-appellants. The charge against them were held duly proved. They were consequently convicted and sentenced as mentioned at the very out-set. Hence this appeal. 4. We have heard Shri B.R. Purohit, learned counsel for the accused-appellants and the learned Public Prosecutor Shri R.P. Dave assisted by Shri MX. Garg, counsel for the complainant. We have also gone through the case file carefully. 5. In assailing the conviction of the appellants, the learned counsel for the appellants raised various grounds, which for the sake of convenience may be classified as under:— 1. The investigation was unauthorised; 2. the testimony of PW 2 Krishna, PW 3 Surjan Ram and PW 6 Smt. Mathuri has been wrongly relied upon to convict the accused persons. Their evidence is discrepant, self contradictory and inconsistent. They should not be taken to be the witnesses of truth in view of the fact that PW 4 Inder Raj and PW 5 Chhelu Ram have lent no support to the prosecution and turned hostile. The prosecution has also withheld independent eye witnesses; 3. the right of private defence put forward by accused Lal Chand has been wrongly rejected; and 4. even if the prosecution case is taken as true, the offence made out would not be covered by section 302, I P.C. The offence made out is that under section 325, or utmost under section 304 Part II, I.P.C. 6. It would be proper to take up these contentions at seriatim. 7. It was argued by Mr. Purohit that the investigation was made by PW 7 Umedsingh who was not posted at Police Station, Nohar The case was registered at Police Station, Nohar Shri Umedsingh was working as Sub-Inspector in Reserve Police Lines, Ganganagar. He had, therefore, no jurisdica-tion to carry out the investigation in the instant case. 7. It was argued by Mr. Purohit that the investigation was made by PW 7 Umedsingh who was not posted at Police Station, Nohar The case was registered at Police Station, Nohar Shri Umedsingh was working as Sub-Inspector in Reserve Police Lines, Ganganagar. He had, therefore, no jurisdica-tion to carry out the investigation in the instant case. Since the investigation was carried out by an unauthorised person, the whole trial stands vitiated. We find no force in the contention. It is true that PW 7 Umedsingh was not the Station House Officer of Police Station, Nohar on 22.4.77. He was then posted as Sub Inspector in Reserve Police Lines at district Headquarters Ganganagar. He stated that he came from Ganganagar on 22 4.77 in connection with the investigation of a criminal case No. 15/77 under the direction of the District Superintendent of Police. At Nohar, he was directed by Circle Officer of Police to make investigation in the instant case also. He, therefore, took up the investigation in his hand. 8. Under Section 156 (2), Cr. P.C. occurring in Chapter XII relating to the Powers of the Police Officer for Investigation, no proceeding of a police officer can be called in question at any stage on the ground that the case was one which such officer was not empowered under this section to investigate. We may point out that PW 7 Umedsingh was posted in Ganganagar District and Nohar is a part of it. As such Umedsingh being posted in District Ganganagar was competent to make investigation at any place within the district. He carried out the investigation under the orders of the Circle Officer of Police, Nohar. As such the investigation does not become bad in law. The investigation is not illegal and does not stand vitiated. No authority was brought to our knowledge by the learned counsel that the investigation of the nature in the instant case vitiates the trial and the accused should be acquitted on that count alone. The first contention, thus, has no substance. 9. It was next argued that the evidence of PW 2 Mst. Krishna. No authority was brought to our knowledge by the learned counsel that the investigation of the nature in the instant case vitiates the trial and the accused should be acquitted on that count alone. The first contention, thus, has no substance. 9. It was next argued that the evidence of PW 2 Mst. Krishna. PW 3 Surja-ram, PW 4 Inder Raj, PW 5 Chheluram and PW 6 Smt. Mathuri was wrongly relied upon by the court below in convicting the appellants It was argued that none of them is a witness of truth and their testimony is wholly insufficient to warrant the conviction of the appellants. Now, each of these witnesses has claimed to have seen the occurrence. 10. PW 2 Smt. Krishna is the daughter of the deceased-victim. She stated that at the breakfast time on the day of occurrence, she was going to throw the rubbish at a place situate in the west of her house. Her father was going a few steps ahead of her to go to the field. When her father reached near the rubbish-stacks, accused Netram and Bhadar came out from a fense with lathis in their hands. They cried aloud to finish her father. Apprehending danger, her father Birbal ran in the South side. Accused Manphool and Lalchand came out from their house with lathies in their hands. Accused Netram and Bhadar were after her father. All these four accused persons surrounded her father. Accused Netram struck a blow of his lathi on the head of her father. He father fell down in the street outside the house of Ramswaroop Thereafter all the four accused started striking blows to him. She raised cries and met Surjaram (PW 3) outside the house of Manphool. She told him that her father was being assaulted and belaboured by the appellants and requested him to intervene. In the meantime PW 4 Inderraj, PW 5 Chheluram and Ramswaroop also arrived there. They tried to intervene to save her father but the accused did not relent. PW 4 Inderraj sustained injury in a bid to protect her father. The accused thereafter dragged her father and took him in their roofless Chhapper situate in their court-yard. There they, also continued to strike blows to her father. Her mother Smt. Bhoori and grand mother PW 6 Smt. Mathuri came there. PW 4 Inderraj sustained injury in a bid to protect her father. The accused thereafter dragged her father and took him in their roofless Chhapper situate in their court-yard. There they, also continued to strike blows to her father. Her mother Smt. Bhoori and grand mother PW 6 Smt. Mathuri came there. Smt. Mathuri tried to save her father and she also received some injuries at the hands of the accused persons. The accused persons after beating her father, ran away taking their lathies with them. Her father became unconscious. PW 3 Surjaram immediatly left to lodge the report at the Police Station. She was cross-examined at length but nothing could be extracted from her which may be helpful to the accused. PW 3 Surjaram is the p;rson who lodged the report at the police Station. He deposed that at about 8.00 or 8.15 A.M. on the day of occurrence he was returning from his field. Smt. Krishna (PW 2) came crying to him and told him that the appellants were beating her father Birbal. He saw that the accused had encircled Birbal outside the house of Ramswaroop. He went running there and saw that the accused were beating Birbal with lathies. Birbal was lying on the ground and had become unconscious. Meanwhile Inderraj (PW 4), Chheluram (PW 5) Ramswroop and one more person came there. They all asked the accused not to beat Birbal but they did not relent. The appellants dragged Bribal and took him to their Chhapper, where also they struck blows to him. PW 6 Smt. Mathuri and the victims wife Smt. Bhoori came there. Smt. Mathuri received a blow of lathi on her hand. The accused thereafter disappeared. He and other persons who had assembled there, took Birbal to his house. Thereafter he went to Police Station, Nohar and lodged report Ex. P. 8 of the occurrence. He was cross-examined but again nothing could be elicited from him which may be helpful to the appellants. The only thing which could be elicited from him was that the accused persons had a right of way in his field and he does not allow them to use that way. But he denied the suggestion that due to this reason he was falsely deposing against the appellants. 11. PW 4 Inderraj. The only thing which could be elicited from him was that the accused persons had a right of way in his field and he does not allow them to use that way. But he denied the suggestion that due to this reason he was falsely deposing against the appellants. 11. PW 4 Inderraj. though turned hostile to the prosecution and refused to support the theory that the appellants had dragged and taken Birbal to their Chhapper, stated that at the time of occurrence he was going to the house of one Hemraj. In the way he saw all the four appellants striking blows to Birbal, out-side the house of Ramswaroop. Birbal was lying on the ground at that time. Smt. Krishna was standing there. Many persons collected at the spot but he could not recollect their names. The witness further stated that he also tried to intervene and in that attempt he received a lathi blow of accused Lalchand on his hand. He then went away to his house. He was declared hostile because he did not support the prosecution that the accused had dragged and taken Birbal to their Chapper. In cross-examination, nothing could be elicited from him which may cast any suspicion of his sworn testimony. PW 5 Chheluram is a total hostile witness. He deposed that he saw the deceased-victim and accused Lalchand fighting with each other in the house of the appellants Birbal struck some blows with his lathi to accused Lalchand. Thereafter Lalchands son Nathu (not an accused) struck two blows of his lathi on the head of Birbal. Birbal thereupon ran away to his house The witness was cross-examined by the prosecution and he was confronted with his police statement Ex P. 11 and statement Ex.P. 12 recorded under section 164, Cr.P.C. He denied to have given the statement Ex.P. 11 before police during investigation. He admitted to have given statement Ex.P. 12 before the judicial magistrate but alleged that he gave it at the instance of police who threatened him with dire consequences in case he did not give the statement as they wanted from him. In our opinion, PW 5 Chheluram has been won over by the accused and for that reason he has suppressed the real truth. In our opinion, PW 5 Chheluram has been won over by the accused and for that reason he has suppressed the real truth. Looking to the injuries of Birbal and the fact that he became unconscious he could not run away to his house after he was belaboured. As will be discussed later on at the appropriate stage, no injuries were found on the person of Lalchand. As such PW 5 Chhelu Ram appears to be total-lier who has scanty regard for truth. Any way, his hostile attitude does not diminish the direct testimony of the other eye witnesses. 12. PW 6 Smt. Mathuri is the mother of the deceased-victim. She deposed that Birbal left the house to go to his field. After sometime she heard the cries of Smt. Krishna. She and Birbals wife Smt. Bhoori went run in to the house of appellants and found Birbal lying in their Chhapper. The appellants were beating Birbal with lathies. She requested them not to do so and thereupon accused Lal Chand struck two blows of his lathi on her left upper arm and elbow. PW 3 Surjaram, PW 2 Smt. Krishna, PW 4 Inderraj, PW 6 Chheluram Hansraj and Ramswaroop were also there in the Chhapper. She was cross-examined but again nothing could be taken out from her which may cast doubt on the veracity of her testimony. 13. It is true that PW 2 Krishna and PW 6 Smt. Mathuri are the close relatives of the deceased-victim being his daughter and mother. But that hardly constitutes a good and valid reason to discard their direct testimony. The fact that in murder case the witnesses are the close-relatives does not detract from the evidentiary value to be attached to their testimony. It is difficult to imagin that these two relative witnesses would leave the real assailants and substitute the innocent appellants in their place. So also, no reasons appear to discard the direct testimony of the ocular witnesses PW 3 Surja Ram and PW 4 Inderraj. The learned Sessions Judge accepted the evidence of PW 2 Smt. Krishna, PW 3 Surjaram, PW 4 Inderraj and PW 6 Smt. Mathuri as reliable and dependable. After a careful scrutiny of their testimony, we are unable to take a view diffierent from that of the learned Sessions Judge. 14. The learned Sessions Judge accepted the evidence of PW 2 Smt. Krishna, PW 3 Surjaram, PW 4 Inderraj and PW 6 Smt. Mathuri as reliable and dependable. After a careful scrutiny of their testimony, we are unable to take a view diffierent from that of the learned Sessions Judge. 14. It was argued that no marks of dragging were found from the place of occurrence which is alleged to have taken place outside the house of Ramswaroop to that of the house of the appellants. A perusal of site plan Ex. P.l 3 shows that the victim was first of all belaboured at place marked A in it. From there he was taken to place B. No markes of dragging were found by the Investigating Officer in the way from place A to H It appears that the marks were not found because it is a thoroughfare and the marks stood wiped off. The fact that no marks of dragging could be found is not a factor to be taken into consideration to distruct the testimony of the ocular witnesses. Markes of dragging were found from place H to B which is in the Court-yard of the appellants because it is not a thorough-fare. The names of all these ocular witnesses have been mentioned in the First Information Report Ex. P. 8 lodged within two or three hours of the incident. The names were disclosed at the earliest avaliable opportunity. 15. We, therefore, find no force in the contention that the evidence of the aforesaid eye witnesses was wrongly relied upon or taken as true by the trial Court. The contention is barren of substance and must be rejected. 16. It was next argued by Mr. Purohit that the plea of right of private defence taken by the appellants was wrongly rejected. It was argued that when accused Lal Chand was arrested on 25 4.77, one scratch was found on his ankle below the knee. This injury suggests that he was belaboured by the deceased-victim. Since the prosecution witnesses have not explained this injury of accused Lal Chand, it should be taken that they are not witnesses of absolute truth. It was argued that the failure of the prosecution to explain the injury on the person of accused is a circumstance which must be taken into serious consideration. Since the prosecution witnesses have not explained this injury of accused Lal Chand, it should be taken that they are not witnesses of absolute truth. It was argued that the failure of the prosecution to explain the injury on the person of accused is a circumstance which must be taken into serious consideration. It was urged that the accused is not required to prove his defence to the hilt. All that is required from him is that there should be-preponderence of probabilities in his favour. The presence of injury on the person of accused Lal Chand suggests that he was belaboured by the deceased-victim. In these circumstances the plea taken by accused Lalchand that Birbal came to his bouse and belaboured him and his son Nathu, in order to protect him from being further beaten, struck blows to Birbal, should be accepted as genuine. 17. We have given our anxious consideration to the contention and find no force in whatsoever nature in it. 18. The right of private defence is a right to self-help and must be accepted when the circumstances show its existence. The Court should not feel shy in accepting this right if it is there. Now, accused Lalchand was arrested on 25.4.77 i.e. after three days of the occurrence. A very minor scratch on his left ankel was found when he was arrested, vide arrest memo Ex. P 23. This is a superficial injury which can be sustained by a villager in more than one way. If accused Lalchand was belaboured by Birbal as pleaded by him, he could have got himself medically examined within reasonable time. He was free before his arrest made on 25.4.77. There was no deter him from getting himself medically examined. He failed to do so. In these circumstances it cannot be accepted that he was belaboured by the deceased-victim as pleaded by him. There must be circumstances to make out a right of private defence. Mere conjectures and surmises are not sufficient to make out this defence. Suffice it to say that we are unable to accept that a right of private defence was available to the accused simply because a minor scratch was found on his left foot at the time of his arrest. The right of private defence cannot be extended to the accused as there is no material to make it out. Suffice it to say that we are unable to accept that a right of private defence was available to the accused simply because a minor scratch was found on his left foot at the time of his arrest. The right of private defence cannot be extended to the accused as there is no material to make it out. The right of private defence is not to be assumed. It has to be made out and established. The contention, therefore, holds no ground. 19. Lastly, survives the question relating to the nature of offence. Mr. Purohit with his usual vehemence contended that in the facts and circumstances of the case the offence made out is not of murder under section 302, I.P.C nor appellants can be convicted under it with the aid of section 34, I.P.C. Mr. Purohit contends that the offence made out is that of causing hurt under section 323, I.P.C. The contention requires deliberations at some length. 20. Frequently the cases occur where several persons take part in assaulting a man who dies from the cummulative effect of the assault. The question arises what offence have the accused committed. If there is evidence that the blow of any of the accused caused the death of the victim, he would be held giuilty of homicide. But if it cannot be ascertained, them all would be held liable for hurt or grievous hurt or homicide or even murder according to the nature and violence of the assault and the intention and knowledge imputable to the accused. 21 In the instant case in hand, as admitted by Smt. Mathuri (PW 6) (mother of the deceased-victim), accused Lal Chand is the real brother of her husband and accused Netram and Manphool are the sons of Lal Chand. There is thus close relationship between the deceased-victim and the appellants. The motive alleged is that accused Lal Chand wanted the victims daughters married to the brothers-in-law of his another son Nathu. The deceased-victim did not carry out his (accused Lalchands) wishes and got his daughters (Kamla and Krishna) married with some other persons. It is said that this annoyed accused Lalchand. In our opinion, the motive alleged is not sufficient to drive and push the appellants to commit the murder of the victim. The deceased-victim did not carry out his (accused Lalchands) wishes and got his daughters (Kamla and Krishna) married with some other persons. It is said that this annoyed accused Lalchand. In our opinion, the motive alleged is not sufficient to drive and push the appellants to commit the murder of the victim. Looking to the proximate relationship between the victim and the appellants and the motive advanced, we are unable to conceive that the appellants wanted to finish the victim for ever. As such, we find that accused had no common intention to cause the murder of victim Birbal. 22. The death of the victim took place due to head injuries No. 1 and 2, which according to Dr. Swami (PW 1) were sufficient in the ordinary course of nature to cause death. There is no evidence, who out of the appellants caused these fatal injuries No. 1 and 2. There is omnibus statements of the ocular witnesses that appellants struck blows to the victim, without specifying who hit him where. Of course, PW 2 Smt Krishna deposed that first blow of the head was struck by accused Netram. However, in her cross-examination she admitted that accused Netram struck a blow from behind on the victims head. But there is no injury on the back of the head of the victim. As such, we cannot say that accused Netram struck any blow on the head of the victim. 23. The position which stands is that the accused made an assault on the victim and struck blows to him with lathies. It is common for the villagers to keep ordinary lathies with them. There was no common intention on the part of the appellants to commit the murder of the victim. It is not proved as to who of the accused caused injuries No. 1 and 2 to the victim which resulted in his death. In these circumstances, we are of the opinion that the accused wanted to give a severe beating to the victim. The offence made but is, therefore, not of murder but that of causing grievous injuries to the victim. We may notice the observations of their lordships of the Supreme Court made in simillar cases involving identical situations. In Shri Kishan Versus the State of Uttar Pradesh (1), there was no previous enmity between the accused-appellants on the one hand and the deceased-victim on the other. We may notice the observations of their lordships of the Supreme Court made in simillar cases involving identical situations. In Shri Kishan Versus the State of Uttar Pradesh (1), there was no previous enmity between the accused-appellants on the one hand and the deceased-victim on the other. Injuries were caused by lathies only. There was no material on record to show as to who gave the fatal blows. Their lordships held that it was a case covered by section 325 read with 34, I.P.C. and not that under section 302 read with 34, I.P.C. In Ramlal Versus Delhi Administration (2), the assault was made on the victim by more than one accused with lathies. Blows were inflicted on the head. But there was no evidence which out of the two blows was given by the accused. The offence was taken to be under section 325 read with 34, I.P.C. In Ninaji Raoji Versus the State of Maharashtra (3), the victim was assaulted by a number of persons, resulting in his death. No common intention to cause death was proved. Their Lordships held that no offence under section 302/34, I P.C. was made out. It was held that the accused had the common intention only of causing grievous injuries with lathies and Khunt. 24. The learned Public Prosecutor invited our attention to the well-known case of Virsasingh Versus the State of Punjab (4) and contended that the offence made out is that under section 302, as the case is covered by clause III of Sec. 300, I.P C. We are unable to agree with the learned Public Prosecutor. In the case of Virsasingh, there was only one accused who inflicted fatal blows to the victim, which were found sufficient in the ordinary course of nature to cause death. It was in those circumstances that the offence made out was taken to be of murder under section 302, I.P.C. Here is not that situation. 25. Learned counsel for the appellants also raised some insignificant contentions relating to the seizure of tea, Gur etc. and non-recovery of the utensil which Smt. Krishna was carrying to throw the rubbish etc. We may say that these insignificant contentions do not destroy the main fabric of the prosecution case viz. that accused-appellants made an assault on the victim and inflicted blows to him. 26. and non-recovery of the utensil which Smt. Krishna was carrying to throw the rubbish etc. We may say that these insignificant contentions do not destroy the main fabric of the prosecution case viz. that accused-appellants made an assault on the victim and inflicted blows to him. 26. In the result, we partly allow the appeal of accused Lalchand, Manphool, Netram and Bhadar. Their conviction and sentence under S. 302/34, I.P.C. are set-aside and instead they are convicted under section 325/34,I.P.C. and each of them except accused Manphool is sentenced to four years rigorous imprisonment. The conviction and sentence of accused Lalchand, Netram and Bhadar under section 342, I.P.C. are maintained. They were on bail during the pendency of appeal and are not present today. They will surrender before the trial Court within 15 days, failing which the learned Additional Sessions Judge shall issue warrants of arrests against them and send them to jail to undergo the unexpired portion of their sentence. 27. Accused Manphool was nearly 15 years of age at the time of his conviction. As such he cannot be sentenced to any punishment in view of the provisions of Section 360 and 361, Cr.P C. and the provisions of the Probation of Offenders Act. He has also been convicted under section 342, I.P C. Since no punishment can be imposed on him unless special reasons are there, the punishment awarded to him under section 342, I.P.C. is also set-aside. No previous conviction stands at his discredit. As such, instead of sentencing him atonce to any punishment, we hereby direct that he be released on his entering into a bond for a sum of Rs. 3000/- together with a surety in the like amount to the satisfaction of the learned Additional Sessions Judge (1) Hanumangarh to appear and receive sentence when called upon during a period of next two years and in the meantime to keep the peace and be of good behaviour. He is allowed two weeks time to submit the aforesaid bonds. The appeal shall stand accordingly disposed of.