JUDGMENT 1. - This appeal is directed against the judgment dated February 29, 1980 passed by the learned Sessions Judge, Jalore. Appellants Ganpat Singh. Madan Singh and Chensingh were tried for the offences under sections 302, 302/34 and 323 IPC. By the aforesaid judgment, the learned Judge convicted Ganpatsingh for the offence under section 302 IPC and Madansingh and Chensingh for the offence under section 302 read with Section 34 IPC and sentenced them each to imprisonment for life and a fine of Rs. 1000/-, in default to undergo six months R. 1. . All the three appellants were also convicted for the offence u/s 323 IPC and sentenced to three months R. I. 2. Briefly stated the facts of the case giving rise to the trial, conviction and sentences of the appellants and the present appeal are as under:- 3. On September 26, 1979 Chandansingh (PW 1) son of deceased Jalam Singh was at his field. In the evening his she-goat entered the field of appellant Ganpatsingh and the latter ran after the witness to give him a beating. The witness made good his escape. On the next morning Chandansingh told his father about what had happened in the previous evening. Jalamsingh deceased reprimanded Ganpatsingh which annoyed the latter. At that time Ganpatsingh went away, but after about an hour the three appellants armed with lathi went in the courtyard outside the house of Jalamsingh and gave a beating to him. Chandansingh was standing at the door of his house. He raised an out-cry. Neighbourers Dhoonk Singh (PW 2) and Dharamsingh (PW 3) reached the site and on seeing the appellant belabouring Jalamsingh with lathies asked them not to do so. Dharamsingh intervened. He was also given a beating by the assailants. Dhoonk Singh and Chandansingh took out fuel wood from inside the house of Jalamsingh and caused injuries to Ganpat Singh and Madansingh. The three appellants thereupon took to heels. Dharam Singh and Jalamsingh injured were taken to Primary Health Centre, Ahore in a trolly by Oumansingh, Dhoonksingh, Dalpatsing and Jaisingh., Dr. Raman Verma (PW 6), Medictil Officer, Incharge P. H. C., Ahore examined Jalamsin.h in unconscious condition at 12.30 P.M. and prepared the injury report Ex. P/8. Jalamsingh succumbed to the injuries sustained by him at 1.10 p. m. on that very day. Dr. Raman Verma (PW 6), Medictil Officer, Incharge P. H. C., Ahore examined Jalamsin.h in unconscious condition at 12.30 P.M. and prepared the injury report Ex. P/8. Jalamsingh succumbed to the injuries sustained by him at 1.10 p. m. on that very day. Dr. Verma conducted the autopsy over the dead body and prepared the postmortem examination report Ex. P/7.The Doctor noted following injuries on the dead body ; External Injuries 1. Horizntal incised wound 4 cm x 1/2 cm x bone deep, blew the right eyebrow. 2. Incised wound 21/2 cm x 1/4 cm x bone deep below the lower eye lid of right eye. 3. Lacerated wound 1 cm x 1 cm x bone deep on the lateral middle aspect of right nostril. 4. Lacerated wound cm x 1/2 cm x bone deep over the anterior and upper part of nose. 5. Horizontal bruised 4 cms x 1 cm over the lower lid of left eye. 6. Anterior posterior lacerated wound 8 cms x 1 cm x bone deep on the centre of right parietal bone. 7. Horizontal lacerated wound 4 cms x 1 cm x bone deep over the centre of left parietal region. 8. Lacerated wound 1 cm x 1 cm x bone deep over the posterior aspect of middle finger of right hand. 9. Horizontal bruise 4 cms x 1 cm x over the upper lid of left eye. Internal Injuries 1. Depressed multiple fracture of left parietal bone 3 cm x deep. 2. Lacerated wound 6 cms x 6 cms x 3 cm over the left side of brain. Cerebral Membrance over this wound were also lacerated and there was a blood clot over this wound. In the opinion of the Doctor the cause of death was comea on account of brain injury. 4. On the same day at 1.20 P. M. Dr. Raman Verma examined the injuries of Dharam Singh and noted following injuries on his persons ; 1. Horizontal lacerated wound, 8 cm x 2 cm x bone aeep over the anterior aspect of lower third of right leg. 2. Vertical lacerated wound 2 cm x 1/4 cm x 1/4 cm over the posterior aspect of middle of right arm. 3. Lacerated wound 1/4 cm x 1/2 cm x 1/4 cm over the tip of index finger of right hand. 4. Lacerated wound 2 cm x 1 cm over the vertex of head. 2. Vertical lacerated wound 2 cm x 1/4 cm x 1/4 cm over the posterior aspect of middle of right arm. 3. Lacerated wound 1/4 cm x 1/2 cm x 1/4 cm over the tip of index finger of right hand. 4. Lacerated wound 2 cm x 1 cm over the vertex of head. The injury report is Ex. P/9. According to the Doctor all the injuries were simple in nature and caused by blunt object. 5. Doctor Verma informed the Station House Officer about the medico-Legal case and two persons being brought to the hospital in injured conditions. Head Constable of Police Station Ahore went to the hospital and recorded Ex. P/1, the statement of Chandan Singh. As the place of occurrence fell in the circle of P.S. Nosra, the report Ex. P/1, the inquest report and the injury report were sent through Poonaram, constable to that Police Station P.W. 9 Narainial. S.H.O., P.S. Nosra registered the case under section 302 I.P.C. The S.H.O. went to village Sadan in. the next morning and inspected she site at the instance of Chandan Singh. After conducting necessary investigation and preparing memos, the S.H.O. went to Ahore hospital and recorded the statement of Dharamsingh. On September 29, 1979 S.H.O. Narainlal arrested Ganpat Singh and Madan Singh appellants vide arrest memos Ex. P/13 and Ex. P/14 respectively. The clothes they were wearing being suspected to be blood stained were taken in possession. On September 29, 1979 Ganpat Singh and Madan Singh, while in the police custody furnished information for getting recovered lathies. In pursuance of that information, the S.H.O. recovered one lathi each at the instance of each of the two appellant.The blood was found on the lathi which was recovered at the instance of Madan Singh. On October 3, 1979. Chensingh appellant was arrested vide memo Ex. P/17, on October 4, 1979. Chen Singh furnished information for getting recovered one lathi. In pursuance of that information, one lathi was recovered from the field of the appellant lying beneath a jaal tree. The blood was suspected on the lathi. As Ganpatsingh and Manansingh had injuries on their bodies at the time of their arrest, they were examined by Doctor Raman Verma on September 29, 1979. Doctor Verma noted following injuries on the body of Ganpat Singh and prepared the injury report Ex. D/3;- 1. The blood was suspected on the lathi. As Ganpatsingh and Manansingh had injuries on their bodies at the time of their arrest, they were examined by Doctor Raman Verma on September 29, 1979. Doctor Verma noted following injuries on the body of Ganpat Singh and prepared the injury report Ex. D/3;- 1. Anterior posterior lacerated wound 5 cm x # cm x bone deep over the posterior aspect of right parietal bone. 2. Lacerated wound 1cm x 1/4 cm x bone deep over the left side of occipital bone. 3. Anterior posterior abrasion, 12 cm x cm over the left shoulder. 4. Horizontal bruise, 8 cm x 2 cm over the lower and posterior aspect of left side of chest. 5. Abrasion, 2 cm x 2 cm over the posterior aspect of left elbow. 6. Horizontal bruise, 6 cm x 3cm over the-posterior aspect of left hand. 7. Vertical abrasion, 12 cm x 3 cm over the anterior aspect of upper part of right forearm. 8. Abrasion, 6 cm x 6 cm over the anterior aspect of right knee. According to the Doctor the injuries were simple in nature and caused by blunt weapon. The Doctor however, advised x-ray for injuries Nos. 1, 2 and 6. 6. On the same day, Doctor Verma examined the injuries of Madansingh and prepared the injury report Ex. D/4, following injuries were found on body:- 1. Lacerated wound, 4 cm x 1/2 cm x bone deep over the anterior aspect of right parietal region. 2. Lacerated wound, 4 cm x 1/4 cm x bone deep over the posterior aspect of right parietal region. 3. Bruise, 3 cm x 2 cm over the posterior aspect of the left arm. 4. Abrasion, 2 cm x 2 cm over the posterior aspect of right elbow. 5. Abrasion 1 cm x 1 cm over the anterior aspect of left side of chest. According to the Doctor all the injuries were simple in nature and caused by blunt object. The Doctor however advised X-ray for injury No. 11. The duration of the injuries of the two appellants, according to the Doctor, was 36 hours. The articles taken in possession, the clothes of the deceased Jalamsingh, injured Dharamsingh and appellants Ganpatsingh and Madansingh and the lathies recovered at the instance of Madansingh and Chansingh suspected to be stained with blood were sent for chemical examination. The duration of the injuries of the two appellants, according to the Doctor, was 36 hours. The articles taken in possession, the clothes of the deceased Jalamsingh, injured Dharamsingh and appellants Ganpatsingh and Madansingh and the lathies recovered at the instance of Madansingh and Chansingh suspected to be stained with blood were sent for chemical examination. The report of the Chemical Examiner is Ex P/19 and that of the Serologist is Ex. P/20. The blood on all the clothes was human blood according to the Serologist. The blood on the two lathies being disintegrated their origin could not be determined. 7. After completion of necessary investigation, charge sheet against the three appellants was filed in the Court of Judicial Magistrate, Jalore. The learned Magistrate committed the appellants to the Court of Sessions Judge, Jalore to stand their trial. The learned Sessions Judge charge sheeted the appellants for the afore said offences. All the appellants denied the indictments and trial proceeded. Prosecution examined nine witnesses in all to substantiate its case. All the three appellants denied the allegations levelled against them. Ganpatsingh stated about his being given a beating by Jalamsingh. He stated that on September 27, 1979 when he came from his field and was there in the & Pol of the house, Jalamsingh and Dharamsingh belaboured him with lathies and caused injuries to him. That, Madansingh was also coming there. That his cousin Narainsingh took him to Ahore Police Station and injuries were shown to the S. H. O. and request made to record the report but he told that he would record the report after sometime. Thereafter instead of recording the report he gave a threatening to him and took him in custody. Thereafter he sent for some private compounder and showed his injuries and washed his head. That, he was sent to the hospital on the third day. Madansingh stated that Jalamsingh was giving a beating to Ganpatsingh and he rushed to his rescue. Both the appellants have stated that blood on their clothes was their own. Chensingh took the plea of alibi and stated that he was not there in the village on the date of the occurrence. No defence witness was examined. The learned Sessions Judge placed reliance on the testimony of injured Dharamsingh and eye witnesses Chendansingh and Dhoonksingh and convicted and sentenced the appellants as stated earlier. Chensingh took the plea of alibi and stated that he was not there in the village on the date of the occurrence. No defence witness was examined. The learned Sessions Judge placed reliance on the testimony of injured Dharamsingh and eye witnesses Chendansingh and Dhoonksingh and convicted and sentenced the appellants as stated earlier. Feeling aggrieved by their conviction and sentences, the appellants have preferred this appeal in this Court. 8. We heard Mr. P. R. Choudhary, learned counsel for the appellants and Mr. L. S. Udawat, learned Public Prosecutor for the State and carefully examined the record of the case. 9. Mr. Choudhary has assailed the findings of the learned trial Judge on two grounds. Firstly, that Ganpatsingh and Madansingh had injuries on their bodies but the investigating officer despite the directions of the Doctor, did not care to get them X-rayed. According to Mr. Choudhary from the number of injuries sustained by the appellants Ganpatsingh and Madansingh and the circumstances of the case, it appears that Ganpatsingh and Madansingh even if it is assumed that they caused injuries to Jalamsingh and Dharamsingh, must have done in exercise of their right of private defence of person. The second argument of Mr. Choudhary is that if the Court does not consider it to be a case of private defence, still it was a case of free fight and even if not so, the circumstances of the case, the nature of the injuries and the weapon used does not make out a case of murder. Mr. Choudhary stressed that the quarrel was on a trivial point and therefore, there could not be any intention of the appellants to commit the murder of Jalamsingh. Regarding Chensingh, the argument of Mr. Choduary is that he was not at all present at the site and has been falsely implicated because of his being the brother of the other two appellants. 10. Mr. L.S. Udawat, learned Public Prosecutor controverted these contentions and submitted that the appellants armed with lathies caused fatal injuries to Jalamsingh and also injured Dharamsingh when he tried to rescue Jalamsingh. It was thereafter that Chandan Singh and Dhonksingh caused injuries to Ganpat Singh and Madansingh and as such question of exercise of right of private defence by the accused party does not arise. Mr. It was thereafter that Chandan Singh and Dhonksingh caused injuries to Ganpat Singh and Madansingh and as such question of exercise of right of private defence by the accused party does not arise. Mr. Udawat stressed that the nature of the head injury caused by Ganpatsingh shows the intention to commit murder. The other two appellants according to the learned Public Prosecutor shared the common intention of Ganpatsingh to cause fatal injury to Jalamsingh and therefore conviction of Ganpatsingh under section 302 I. P. C. and the other two appellants under that offence with the help of Section 34 I.P.C. is justified. 11. At the very outset it may be observed that the quarrel between Ganpat singh and Chandansingh on the day previous to this incident was on a trivial matter. Chandansingh she goat entered the field of Ganpat singh and damaged the Bajri crop which annoyed Ganpat singh. Though Chandansingh has stated that Ganpatsingh had threatened him but as is evident from his statement itself. Ganpat Singh did not give any beating to Chandansingh that night despite Chandansingh remaining in the field till next morning. The prosecution case is that in the morning Jalamsingh reprimanded Ganpatsingh as to why he had frightened the boy on the previous evening and Ganpatsingh went away at that time. After about an hour he came with his two brothers viz. Madansingh and Chensingh all armed with lathies and started beating Jalamsingh. 12. It is pertinent to note that the only witness about the origin of the quarrel is Chandansingh. Chandansingh has stated that he was standing at the door of his house when his father reprimanded Ganpatsingh and remained standing there till three brothers came with lathies and started beating to his father. It appears strange that Chandansingh would have remained standing there for one hour. From the statement of Chandansingh taken as whole, it does not appear that much time might have passed between Jalamsingh reprimanding Ganpatsingh and he with others coming armed with lathies and giving a beating to him. It is important to note that there is a common Pol of the house of the deceased Jalamsingh, the accused and the witnesses Dharmsingh and Dhoonksingh. They were also closely related. Madansingh and Ganpatsingh have sustained injuries. It is important to note that there is a common Pol of the house of the deceased Jalamsingh, the accused and the witnesses Dharmsingh and Dhoonksingh. They were also closely related. Madansingh and Ganpatsingh have sustained injuries. Chandansingh, Dhoonksingh and Dharamsingh have admitted that when they were examined by the Police they did not tell about Dhoonksingh and Chandansingh causing injuries with fuel wood to Ganpatsingh and Madansingh. Injuries were found on the bodies of Ganpatsingh and Mandansingh when they were arrested on September 29, 1979 and they were examined by Dr. Raman Verma on the same day. Dr. Verma have advised X ray for injury Nos. 1, 2 and 6 of Ganpatsingh and injury No. 1. of Madansingh. This injury No. 1 on the head of Madansingh was on the right parietal region. The three injuries of Ganpatsingh for which X-ray was advised were on right of parietal bone, left side of occipital bone and posterior aspect of left hand. S. H. O. Narainial had admitted that he did not get the injuries X-rayed. The only explanation given by him was that as the injuries appeared to be simple he did not get them X-rayed. He then stated that when the appellants were sent for judicial custody he informed the Jailor to get the injuries X-rayed. 13. The question emerging for determination is whether the injuries on the persons of Ganpatsingh and Madansingh would entitled them to the benefit of their plea that Ganpatsingh was given a beating by Jalamsingh and Dharmsingh and Madansingh tried to rescue. Chandansingh happened to be the son of Jalamsingh and had some quarrel with Ganpatsingh on the previous evening. His statement regarding the origin of quarrel and the appellants being the assailants may not be upright but Dhoonksingh and Dharamsingh had no enmity or quarrel with Madan Singh and Ganpatsingh so as to lead Dharamsingh to give a beating to them. The prosecution case about Dhoonksingh and Dharamsingh rushing to the side on hearing the out cry of Chandansingh cannot be doubted. According to Dhoonksingh and Dharamsingh they saw the appellants giving a beating to Jalamsingh when he had already fallen down. There was no reason or occasion for Dharamsingh to join Jalamsingh and both of them giving a beating to Ganpatsingh and Madansingh. There is no force in the argument of Mr. According to Dhoonksingh and Dharamsingh they saw the appellants giving a beating to Jalamsingh when he had already fallen down. There was no reason or occasion for Dharamsingh to join Jalamsingh and both of them giving a beating to Ganpatsingh and Madansingh. There is no force in the argument of Mr. Choudhary that if Chandansingh was already there when the beating to Jalamsingh started, why did he not try to rescue his father and use the fuel wood which he later on did. Chandansingh being alone at the time his father was being given a beating might not have dared to intervene, He raised the out cry which attracted Dhoonksingh and Dharamsingh. When the assailants were armed with lathies, it was natural for the witnesses not to go near the victim Jalamsingh. Despite that, Dharamsingh summoned up courage and went to rescue Jalamsingh. It was when Dharamsingh was also belaboured that Dhoonksingh and Chandansingh took fuel wood lying inside the house of Jalamsingh gave a beating to Ganpatsingh and Madansingh and it was because of that beating that Ganpat Singh and Madansingh left the scene of occurrence. 14. From the statements of the three witnesses, there is nothing to doubt the testimony of the three eye witnesses on the point that Ganpatsingh and Madansingh were not given a beating by Chandansingh and Dhoonksingh at initial stage rather they were belaboured after Dharamsingh had also sustained injuries in his efforts to rescue Jalamsingh. The case of the appellants, therefore, does not fall within the ambit of exercise of right of private defence to person. This being the position, the prosecution witnesses initially concealing the fact of their causing injuries to Ganpatsingh and Madansingh and the Investigating Officer failing to get the injuries of these two appellants x-rayed, would not help defence. 15. The case of Chensingh falls on a different footing. There is reason to believe his version that he was not there at the time of the occurrence. The inference is to be drawn from the circumstances of the case. Chensingh happens to be the real brother of the other two appellants. According to Chandansingh and Dhoonk singh they had not caused any injury to Chensingh because he was standing aside when these two witnesses belaboured the two other appellants with fuel wood. The inference is to be drawn from the circumstances of the case. Chensingh happens to be the real brother of the other two appellants. According to Chandansingh and Dhoonk singh they had not caused any injury to Chensingh because he was standing aside when these two witnesses belaboured the two other appellants with fuel wood. If Chensingh was also the assailant and participated in causing injuries to Jalamsingh and Dharamsingh, there was no reason for Chandansingh and Dharamsingh to spare him. Even if the contention of the learned Public Prosecutor that Chensingh might have stood aside after causing injuries to Jalamsingh and Dharamsingh and for that reason Chandansingh and Dhoonksingh might not have caused injuries to him is considered, still it appears strange that Chensingh would have remained a by stander when Chensingh and Dhoonkingh were causing injuries to his brother with fuel wood. Dhoonksingh has admitted that he had given five or six blows to each of the two accused and similar number of lathies blow were inflicted to accused viz. Ganpatsingh and Madansingh by Chandansingh. 16. It does not appeal that Chensingh having accompanied his two brothers with intention to commit a crime would have behaved like a stranger when the other two brothers were being beaten and that too when he as the prosecution alleges, was armed with a lathi. In the natural course of events Chensingh would have either tried to rescue his brothers and would have inflicted a few blows to Dhoonksingh and Chandansingh or would have run away from there, apprehending attack on him also. His remaining standing there without trying to help his brothers or raising a cry or being given a beating by Dhoonksingh and Chandansingh creates a doubt about his presence at the site and his participating in the crime. Cases are not rare in which whole family is implicated in a case though some of them may not have participated. From the circumstances of the case, it so appears that the witnesses have improved upon the real story and named Chensingh brother of the two other appellants as the assailant. We are, therefore, inclined to Chensinghs plea that he was not there at the time. 17. The important point for determination would be whether the conviction of Ganpatsingh and Madansingh for the charge of murder of Jalamsingh and causing simple injuries to Dharamsingh is justified. We are, therefore, inclined to Chensinghs plea that he was not there at the time. 17. The important point for determination would be whether the conviction of Ganpatsingh and Madansingh for the charge of murder of Jalamsingh and causing simple injuries to Dharamsingh is justified. We have already discussed the injuries of the appellants Ganpatsingh and Madansingh and have believed the prosecution version that it was after Jalamsingh and Dharamsingh being belaboured that Chandansingh and Dhoonksingh had caused injuries to Ganpatsingh and Madansingh. In this view of the matter, it is not a case in which the appellants Ganpatsingh and Madadsingh may claim any benefit on the plea of exercise of right of private defence to person. 18. So far as injuries of Dharamsingh are concerned both the accused have been convicted and sentenced for the offence under section 323 I. P. C. and there is ho scope for any interference. 19. Nine injuries were noted by Dr. Raman Verma (P.W. 6) on the dead body of Jalamsingh at the time of his postmortem examination. According to the Doctor all the injuries were antemortem in nature and injuries Nos. 1 and 2 could not be caused by lathies. The prosecution case is that the lathis with Ganpatsingh had iron-wire on it. Ex. 6 is stated to be the lathi recovered at the instance of Ganpatsingh in pursuance of his information. Doctor Verma on seeing that lathi Ex. 6 has given a categoric opinion that Injury Nos. 1 and 2 could not be caused by the iron studs or wire of that lathi. Thus there is nothing to point that Injury Nos. 1 and 2 being incised wounds were caused by the accused with the weapons they had. Injury Nos. 3 to 9 according to the medical evidence were caused by some blunt object. The brain injury i.e. injury Nos. 6 was on account of external injury No. 7. the internal injuries according to the Doctor were sufficient to cause death in the ordinary course of nature. The time of occurrence is approximately 9.00 A.M. Jalamsingh expired at 1.10 P.M. in the hospital. The cause of death was coma on account of brain injury. 20. The learned counsel for the appellants has referred to that part of the statement of Dr. The time of occurrence is approximately 9.00 A.M. Jalamsingh expired at 1.10 P.M. in the hospital. The cause of death was coma on account of brain injury. 20. The learned counsel for the appellants has referred to that part of the statement of Dr. Verma where he has stated that on sustaining injury No. 6, the victim would in most of the cases die instantaneously and in some cases within half an hour. According to the Doctor, in no case a person sustaining such an injury would survive for three or four hours. The Doctor stated that pressure on injury No. 7. could have caused injury No. 6 on the brain. The Doctor also stated that it is not necessary that injury No, 1 and injury No. 6 would have been caused simultaneously. A pointed question was asked to the Doctor by the court that in case Jalamsingh sustained injury No. 7 at 9.00 A. M. and depressed fracture would have also been caused at that time then because of the laceration of brain-membrane, as entered in the postmortem examination could he remain alive till 1. 10P. M. The Doctor replied in negative and stated that on account of the laceration of the brain and the membranes as mentioned in the postmortem examination the injured should have died and in that case he could, at the most, survive for an hour. The Doctor further deposed that the person sustaining such an injury at 9.00 A.M. could not have remained alive till 1. 10 P. M. The Doctor further clarified that the laceration of the brain and the member of Jalamsingh would have taken place at the most one hour prior to his death. 21. Mr. Choudhary, learned counsel for the appellants, on the basis of this statement of Doctor, has built up the argument that injury No. 6 was not caused at the time of the incident. According to the learned counsel some pressure at the site of injury No. 7- during the course of the injured being taken to the hospital cannot be ruled out. 22. Though the Doctor has given a categoric about there being no chances of Jalamsingh surviving for more than one hour after sustaining injury No. 6, we feel reluctant to place utmost reliance on this version. 22. Though the Doctor has given a categoric about there being no chances of Jalamsingh surviving for more than one hour after sustaining injury No. 6, we feel reluctant to place utmost reliance on this version. Cases are not rare where according to the medical opinion the injured after sustaining a particular injury must have died instantaneously but convincing evidence establish that the injured had walked to a distance and in some cases survived for sometime. 23. Mr. Choudhary vehemently argued that even if prosecution case against Ganpatsingh and Madansingh is taken to be true. Still there being no specific evidence about Ganpat Singh causing head injuries and Madansingh sharing the intention of Ganaptsingh to cause such an injury, case of murder is not made out. According to Mr. Choudhary from the circumstances of the case, i. e. incident having taken place on a trivial matter, and the weapons used being lathies, the intention of the assailants at the most would have been to give a beating and cause grievious injuries to Jalamsingh. Mr. Choudhary submitted that the case does not travel beyond the ambit of Section 325/34 IPC. so far as the injuries of Jalamsingh are concerned. According to Mr. Choudhary there is no evidence as to who inflicted the blow on the head and therefore all that can be known from the eye witnesses is that Ganpatsingh and Madansingh caused injuries to Jalamsingh simultaneously. 24. Learned Public Prosecutor contended that Madansingh had caused injuries to Jalamsingh even after he had sustained head injury and fallen, his sharing the intention of Ganpatsingh to commit the murder of Jalamsingh is evident. 25. The prosecution case regarding Ganpatsingh using lathi with iron studs and wire is not established. Chandansingh, Dhoonksingh and Dharmsingh have admitted that in their police statements they have not stated about Ganpatsingh having such a lathi with him. The two incised wounds of Jalamsingh according to the Doctor could not have been caused by the lathi Ex. 6 said to have been recovered from Ganpatsingh. The lathies recovered from the three appellants do not connect them with the commission of the crime. The lathi of Ganpatsingh had no blood on it. The other two lathies had no human blood on them according to the report of the Serologist. 6 said to have been recovered from Ganpatsingh. The lathies recovered from the three appellants do not connect them with the commission of the crime. The lathi of Ganpatsingh had no blood on it. The other two lathies had no human blood on them according to the report of the Serologist. Dhoonksingh and Dharamsingh are specific on the point that when they reached the site Jalamsingh had already fallen on the ground and the appellants were inflicting blows in quick succession to him. Both of them have not claimed to have seen any of the assailants causing any head injury to Jalamsingh. They could not say which of the caused which injury on which part of the body to Jalamsingh. The only witness who has stated about Ganpatsingh causing head injury to Jalamsingh is Chandansingh. According to this witness, Ganpatsingh had given a lathi blow on the head of his father and the latter fell down. There after Dhoonksingh and Dharamsingh reached there. He further stated that he had seen Ganpatsingh causing only one injury on the head of his father and thereafter all the assailants gave the beating. He could not say as to who inflicted blow on what part of the body to his father, he admitted that when his father sustained one injury he did not came out rather he came out when Dhoonksingh and Dhramsingh arrived.Dhoonksingh (P.W. 2) and Dharamsingh (P.W. 3) have stated that from the place they were coming, they could not see what had happened initially. Chandansingh had admitted that he had not stated in Ex. P/1 that it was Ganpatsingh who had caused head injury to his father. In view of such a statement of Chandansingh (P.W. 1), reliance cannot be placed upon him when he says that Ganpatsingh was the author of the head injury. It leads to the conclusion that prosecution could not establish the origin of the quarrel and as to how the beating started and who inflicted the first blow. When there is no reliable evidence about a particular assailant causing the head injury, the question of any one of them sharing the common intention of other to commit murder does not arise. The quarrel was on a trivial matter on the she-goat of Chandansingh entering the field of Ganpat Singh and damaging his crop and on his frightening Chandansingh, Jalamsingh reprimanding him. The quarrel was on a trivial matter on the she-goat of Chandansingh entering the field of Ganpat Singh and damaging his crop and on his frightening Chandansingh, Jalamsingh reprimanding him. The deceased and the accused were closely related and their houses were nearby with common main entrance. From the circumstances of the case all that can be inferred is that the appellants Ganpatsingh and Madansingh had common intention to cause grevious injuries to Jalamsingh. As it cannot be ascertained who caused which injury both of them will be held liable under section 325 IPC with the aid of Section 34 IPC. We strengthen our view by the principles enunciated in certain authorities dealing with cases of somewhat similar nature. 26. In the case of Narain v. The State of Rajasthan 1985 Cr. L.R. (Raj) 69 the quarrel was between the members of the family. Both the parties took law in their hands. There were six injuries in all sustained by the victim. The third injury which was found to be fatal was diffused swelling on the left parietal and temporal region. The prosecution could not prove the case against the accused, held responsible for the offence of murder as being the author of injuries. In that circumstance, the conviction of that accused for the offence under section 302 IPC was converted into one under Section 325/34 IPC and he was sentenced to R. I. for a period of five years and a fine of Rs. 500/- . 27. In the case of Lalchand v. The State of Rajasthan 1984 R.L.W. 596. the head injury caused by lathi proved fatal but it could not be proved as to who inflicted that fatal blow. There was no evidence regarding the assailants having the motive to finish the victim. They were close relatives. In the absence of circumstances showing that there was any common intention on the part of the appellants to commit the murder of the victim, their Lordships did not consider it to be a case of murder and therefore, the conviction and sentence under section 302/34 IPC was set aside and the appellants were instead convicted for the offence under section 325/34 and sentenced to four years R. I. 28. The facts of the present case are identical with those of the above referred cases. Here also the parties are close relatives. The facts of the present case are identical with those of the above referred cases. Here also the parties are close relatives. The cause of quarrel is not of the type so as to create an intention to finish the victim. The weapons used and the absence of specific evidence regarding the author of the head injury leads to the conclusion that all that Ganpat Singh and Madansingh intended was to give a beating to Jalamsingh. They are, therefore, held guilty for the offence under section 325/34 IPC and not for the charge of murder. 29. Regarding the quantum of sentence to be awarded to these two appellants, sentence of four years R. I. and a fine would in our opinion meet the ends of justice. 30. Consequently, the appeal of Chensingh is allowed and he is acquitted of the charges levelled against him. Appeal of Ganpatsingh and Madansingh is partly allowed. The conviction and sentence of Ganpatsingh under section 302 IPC and that of Madansingh u/s 302 read with Section 34 IPC are set aside. Both of them are instead of convicted under section 325/34 IPC and sentenced to four years R. I. and a fine of Rs. 500/- each in default to undergo three months R. I. The conviction of the appellants Ganpatsingh and Madansingh under section 323 IPC is maintained. Chensingh is already on bail. His bail bonds stands discharged. Appellant Ganpatsingh is in jail. He has already undergone the sentence awarded to him by this judgment. He shall be set to liberty forthwith if not required in any other case. Appellant Madan Singh is on bail. The Chief Judicial Magistrate, Jalore shall issue warrant of arrest against him and send him to Jail to suffer the sentence awarded to him by this Judgment.Appeal Partly allowed. *******