JUDGMENT 1. - This appeal has been preferred by the accused-appellant, Narain, against the judgment dated 31st August, 1979, passed by the learned Sessions Judge, Sikar, convicting the accused-appellant under Section 302, IPC and sentencing him to undergo rigorous imprisonment for life and a fine of Rs. 200/-. 2. First Information Report Ex. P/8 was lodged by Bhima son of Ruparam (PW/4) at Police Station, Sikar on 20th March, 1979. It was alleged therein that there is a dispute about Pabuji-ka-chabutara between the brothers and, an altercation took place in which Narain inflicted one blow by Ish on the deceased, as a result of which Shanker died instantaneously. A case under Section 302, IPC was registered and after investigation charge-sheet was submitted before the learned Judicial Magistrate who committed the case for trial. The learned Sessions Judge convicted the accused-appellant under Section 302, IPC and sentenced him to undergo sentence as mentioned above. He has also convicted accused Mansha under Section 323, IPC and admonished him under Section 3 of the Probation of Offenders Act. Accused Manohari has also been convicted under S. 323, IPC and sentenced to two months' rigorous imprisonment, but as she remained under trial for a period exceeding two months, no sentence was awarded to her under Section 323, IPC. 3. The learned counsel for the accused-appellant has invited our attention to the statements of PW/2 Tansukha Ram and PW/7 Madan Lal who are eye-witnesses in the case. PW/2 Tansukha Ram has specifically stated that Sundar inflicted one blow on the right side of the ear. PW/7 Madan Lal has also stated that Sunder inflicted a blow by Ish on the right side of the ear. It was submitted by the learned counsel for the defence that there is no injury on the right side of the ear and, as such, the statement of PW/2 Tansukha Ram and PW/7 Madan Lal does not help the prosecution at all. He has also submitted that there is only one allegation that the accused-appellant has inflicted the blow by Ish on the right side of the ear. There is no allegation that he has inflicted the blow on any other part of the body. Thus, the statements of the eye-witnesses, according to the learned counsel for the appellant, do not help the prosecution. 4. He has also invited our attention to the statement of PW/11 Mala Ram. There is no allegation that he has inflicted the blow on any other part of the body. Thus, the statements of the eye-witnesses, according to the learned counsel for the appellant, do not help the prosecution. 4. He has also invited our attention to the statement of PW/11 Mala Ram. The relevant portion reads as under: " ogka rhuksa eqyfteku gkftj vnkyr bDVBs gq,A vknfe;ksa ls gkFk tksM+ dj dgka fd 'kadj gekjs gkFk ls ej x;kA gesa cpkvksaA " 5. Thus, there is an extra-judicial confession in this statement and responsibility has been taken by all the three accused on their shoulders, according to this witness Mala Ram (PW/11) The learned counsel for the accused-appellant submits that if the statement of Mala Ram is taken on its face value then all the three accused are responsible for the commission of the alleged crime. He submits that the two accused have been convicted under Section 323, IPC. In such, circumstances the accused-appellant cannot be convicted under Section 302, IPC. The learned counsel for the accused-appellant has also invited our attention to the statement of PW/3 Bhima Ram who is also the author of the First Information Report and brother of the deceased as well as the accused. The learned counsel for the accused-appellant submits that Ex. P/8 is the First Information Report in which vivid description of the incident has been given by PW14 Bhima Ram. However, in the First Information Report no specific part has been assigned to the accused-appellant and, it has been stated in general terms that all the three accused persons have given beating to the deceased. He submits that PW/4 Bhima Ram has made improvement in the statement and, has stated in the Court that Narain inflicted blow on the head.Thus, according to the learned counsel for the accused appellant, there is a solitary statement of PW/4 Bhima Ram that Narain inflicted the blow on the head and, this part of his statement should not be relied upon specially in the light of the facts that he has not mentioned this fact in the First Information Report. PW/1 Baga Ram is not eye-witness as he has come after the occurrence. He has stated that he has seen all the three accused nearby the spot. PW/1 Baga Ram is not eye-witness as he has come after the occurrence. He has stated that he has seen all the three accused nearby the spot. PW/8 Hema Ram is a witness who had come after the incident and he has stated that Narain has deposed, "mere ko lag gai hai". The learned counsel for the accused-appellant submits that this part of the statement is very relevant and, it goes to show that Narain had no intention at all to cause any injury. The words "lag gai hai" have been interpreted by the learned counsel for the accused-appellant as causing injury in the incident. He submits that if one wants to confess he will confess that he has inflicted an injury. He will not use the words, "Lag gai hai", but he will use the words "Mene marl hai". PW/9 Smt. Mangi does not help the prosecution at all. PW/10 Karnali is the wife of the deceased. She has stated that the accused-appellant has inflicted one blow on the head of the deceased. 6. PW/12 Rupa Ram is the witness relating to the motive. PW/13 Ganesha Ram is a motbir. PW/15 Indar Chand Sharma is the Investigating Officer in the case. 7. Thus, there is two sets of evidence against the accused-appellant. One set of evidence consists of PW/2 Tansukha Ram, PW/4 Bhima Ram, PW/7 Madan Lal and PW/10 Kamali. From the evidence of the eye-witnesses it is clear that the incident has taken place and the deceased had sustained the following injuries: 1. Contusion 3" x 1/12", on the left side of face in front of the ear. 2. Contusion 31/2" x 3" irregular on the left side of the neck. 3. Deffused swelling on the left parietal and temporal region. 4. Abrasion 1" x 1/2" above the left knee on the front of thigh. 5. Abrasion 1" x 1/2" on the back of proximal phalanx of left index finger. 6. Abrasion 3/4" x 1/4" on the back of right elbow. 8. Injury No. 3 has been found to be fatal. All the other injuries were simple in nature. PW/6 B.P. Jangir has stated that if during fights some body happens to fall on a hard substance with sufficient force, injury No. 3 or its like nature injury could be caused. Abrasion 3/4" x 1/4" on the back of right elbow. 8. Injury No. 3 has been found to be fatal. All the other injuries were simple in nature. PW/6 B.P. Jangir has stated that if during fights some body happens to fall on a hard substance with sufficient force, injury No. 3 or its like nature injury could be caused. He has further stated that if proper medical aid is given to a person during reasonable time or immediately a person having an injury like Injury No. 3 could be saved. Thus, it is clear that only injury No. 3 is the cause of the death. As has been discussed earlier, from a perusal of the statement of PW/2 Tansukha Ram as well as of the statement of PW/7 Madan Lal it is clear that the accused-appellant is not the author of the fatal injury. If the statements of these two witnesses are accepted then the position that emerges is that the accused-appellant inflicted a blow on the right side of the ear. The learned Public Prosecutor has submitted that there may be a mistake in the version. These witnesses might have said right side of the ear wrongly. Even if it is assumed for the time being, then the position will be that the appellant is the authority of Injury No. 1. Injury No. 1 is on the left side of the face in front of the ear. If we take the version that by mistake the witnesses are referring right side instead of left side even then the position will be that the appellant will be the author of injury No. I, contusion 3" x 4" x 1" on the left side of the face in front of the ear. This injury is also not fatal and is simple. 9. Now, we examine it statement of PW/4 Bhima Ram. Bhima Ram, who has specifically sad in his statement that Narain inflicted the hand injury, is the author of ore First Information Report Ex. P/8. He has given a vivid description about the incident in the First Information Report, but he has not said a word in the First Information Report that Narain is the author of the head injury. Bhima Ram, who has specifically sad in his statement that Narain inflicted the hand injury, is the author of ore First Information Report Ex. P/8. He has given a vivid description about the incident in the First Information Report, but he has not said a word in the First Information Report that Narain is the author of the head injury. He has further stated in his statement that as soon as he came Narain inflicted a lathti blow and thereafter he had become unconscious and regained consciousness at 5.00 a.m. He has further stated that he cannot say whether PW/10 Kamali came after him or before him as he was unconscious. He has further stated that he deposed before the police on the basis of the information gathered by him after regaining consciousness. Thus, this statement cannot be said to be of sterling worth and, this part of the statement that Nara in inflicted the lathi blow on the head cannot be accepted. 10. Now, remains the statement of PW/10 Karnali. She has deposed that Manchari had handed over the bamboo lathi to her husband and said, "kill these persons". There after Mala Ram and Hema Ram snatched the bamboo lathi from Narain and took away Shankar from the place of the incident. She further deposed that Naraian was bent upon dismentaling the Pabuji-ka chabutara, whereas her husband resisted. The people also threatened Narain that he will be tied down with a tree. Thereafter she deposed that Narain came with an axe, but that was also snatched away. She has further deposed that Manohari had a lathi and she inflicted the lathi blow on her husband. She further deposed that Shankar inflicted Ish on the head of her husband. She has further deposed that Ish was with Mansha and Mansha had handed over the Ish to Shima Ram. She has further deposed that she became unconscious. She has further deposed that at the mid-night she regained unconsciousness and her husband died at 5 a.m. In the cross-examination, she has deposed that she has not stated the part A to B and A to D of her police statement Ex. D/7. Thus, there is a solitary statement of PW/10 Karnali that the appellant is the author of the head injury. Thus, there remains the solitary statement of this witness. D/7. Thus, there is a solitary statement of PW/10 Karnali that the appellant is the author of the head injury. Thus, there remains the solitary statement of this witness. The learned Sessions Judge has acquitted the other accused under Section 302, IPC and has also not taken the assistance of Section 34, IPC. The Prosecution has failed to prove that the appellant is the author injury No. 3 for the reasons mentioned above and the benefit of doubt should be extended to the appellant so far as the question of authorship of injury No. 3 is concerned. 11. It is an admitted position that Babuji-ka-chabutara was constructed against the wishes of the appellant by the complainant party. The chowk is a common Chowk of the family where the houses of all the brothers are situated. The appellant had a grudge that to have a chabutara in front of his house is a bad omen and, for that reason the quarrel had taken place. It has also come on record that the parties were quarrelling. Narain was bent upon dismentaling the chabutara which was constructed on the common chowk and brothers were residing. It has also come on record that Chabutara was constructed two days back. PW/2 Tansukha Ram, PW /4 Bhima Ram and PW/7 Madan Lal have given different version as to how the incident has taken place at the relevant time. Three injuries have been sustained by Bhima Ram (PW 4). Five injuries were sustained by Smt. Karnali (PW 10). On the accused's side, Manohari had sustained four injuries including the contusion on the left side of the forehead. The appellant, Narain, has also sustained six injuries. The injuries sustained by the accused party as well as by the complainant party caused injury No. 3, which was sustained by the deceased, were simple in nature. I From a perusal of the injuries and the record of the case, we are of the I view that the quarrel took place between the members of the family and I both the parties had taken the law in their hand. No charge under Section 34, IPC had been framed against any of the accused and both the accused 4 Manohari and Munsha have been acquitted of the offence under Section 302, IPC. No charge under Section 34, IPC had been framed against any of the accused and both the accused 4 Manohari and Munsha have been acquitted of the offence under Section 302, IPC. The learned Sessions Judge has also held each of the accused liable for his common act and has not taken the assistance of Section 34. IPC. 12. For the reasons mentioned above, we are of the view that the prosecution has failed to make out a case under Section 302, IPC against accused Narain. Normally, Narain can be convicted under Section 323, IPC as the prosecution has failed to prove that he was author of injury No. 3 sustained by the deceased, Shankar, however, looking to the circumstances of the case, it can be said that there may be common intention to cause a grievous injury. We set aside the conviction of Naraian under Section 302, IPC, but convict him under Section 323)34 IPC and sentence him to undergo rigorous imprisonment for five years. Narain will be entitled to get the benefit of Section 428, Cr. PC with regard to the set of for the period he as undergone during investigation, inquiry and trial. 13. In the result, the appeal is partly accepted. The conviction of the accused-appellant under Section 302, IPC is set aside; but he is convicted under Section 325/34, IPC and sentenced to undergo rigorous imprisonment for a period of five years and a fine of Rs. 100/-. In default of payments of fine the appellant should to undergo 3 months RI.Appeal Partly Allowed. *******