JUDGMENT 1. - These two appeals are directed against the judgment dated 8th March, 1978, passed by the Sessions Judge, Sikar. D.B. Cr. Appeal No. 167/78 has been preferred by the accused persons, challenging their convictions and sentences; and D.B. Cr. Appeal No. 548/78 has been preferred by the State of Rajasthan, challenging the acquittal of the accused respondents other than Mangla Ram, of offence under section 302 or 302/149, IPC. 2. The learned Sessions Judge, Sikar, convicted and sentenced each accused person as under:- Name of Accused Under Sec. Punishment Mangla Ram 302, IPC : Imprisonment for life. " 452, IPC : 1 year's RI. " 148, IPC : 3 months' RI. Rameshwar, Surja Ram, Khinwa Ram, Hukma Ram, Chetan Ram, Laxman, Kurda Ram, Duda Ram, 326/149 IPC : 2 years' RI each ; and a fine of Rs. 10/-each. In default of payment of fine to further undergo 1 month's RI each. Jeewan, 324/149, IPC 6 months' RI each. Bhura, 323/149, IPC : 3 months' RI each. Bhagwana, 452, IPC : 1 year's RI each. Hukma Ram, Natha Ram, Asha Ram ; & Kana Ram. 148, IPC : 3 month's RI each. 3. Both the appeals arise out of the same judgment of the Sessions Judge, dated 8th Mar., `78, and hence, they both are being disposed of by this common judgment. 4. According to the prosecution, the accused persons, forming an unlawful assembly and armed with spears, `Kassis' and various other weapons, on the morning of 3rd August, `76, around 7-30 O' clock, came to the Bada of Tulsa (deceased) and in furtherance of their common object, started beating Tulsa (Tulchha). When Nanda and Peetha came to rescue Tulchha, they were also beaten by the accused persons Tulchha subsequently died on account of the injuries received by him. 5. On this report, at the police station, a case was registered and the police after investigation, submitted a challan against the accused persons. The learned Sessions Judge framed charges under sections 148, 452, 302/149, 324, 325, 323/149 & 325, IPC against the accused persons, who pleaded not guilty and claimed trial. The prosecution to establish its case, examined 21 witnesses in all. The accused persons did not examine any witness in their defence. 6. The learned Sessions Judge framed charges under sections 148, 452, 302/149, 324, 325, 323/149 & 325, IPC against the accused persons, who pleaded not guilty and claimed trial. The prosecution to establish its case, examined 21 witnesses in all. The accused persons did not examine any witness in their defence. 6. The learned Sessions Judge, after concluding the trial, hearing both the sides and perusing the record of the case, found each accused person guilty and sentenced each of them, as mentioned above. 7. It is not disputed that Tulchha died on account of the injuries caused to him. The prosecution evidence is very clear. All the prosecution witnesses have stated in their statements that Tulchha was beaten by the accused persons, and that, Peetha and Nanda were also given beating by the accused persons. Dr. U.S. Garg PW 2 examined the injuries of Tulchha (deceased). According to him, Tulchha had the following injuries on his person:- "1. Incised wound margin clean cut tappering at both ends and cutting away muscles and blood-vessels with fracture of tibia 5" x 11/2" in the centre 3/4" left leg in the middle ⅓rd. 2. Penetrating wound with brobale fracture of fibula lower and 1/2" x 1/2" x 3/4" left foot near external malulous. 3. Contusion 5" x 4" left foot. 4. Contusion with lacerated wound 11/2" x 1" and lacerated wound 1" x 1/2" x 1/2" left great toe. 5. Contusion with lacerated wound 3" x 1" and lacerated wound 2" x 1/4" x ⅙" right leg in the middle. 6. Contusion 4" x 3" on left ankle. 7. Contusion 4" x 4" on right knee. 8. Contusion 3" x 2" on left elbow." According to the doctor, injury No. 1 was fatal which appeared to have been caused by some sharp weapon. Injury No. 2 was grievous if fracture was detected in the skygrame, and appeared to have been caused by some sharp weapon. All the other injuries were simple in nature. 8. Tulchha was admitted to the hospital at Sikar. 9. Dr. B.P. Jangid conducted the post-mortem examination on the dead body of Tulchha, who had opined that the cause of death was shock and haemorrhage as a result of the injury to tribial artery. Thus, it is clear that Tulchha died on account of the injuries received by him, and his death was homicidal in nature. 10. 9. Dr. B.P. Jangid conducted the post-mortem examination on the dead body of Tulchha, who had opined that the cause of death was shock and haemorrhage as a result of the injury to tribial artery. Thus, it is clear that Tulchha died on account of the injuries received by him, and his death was homicidal in nature. 10. The learned counsel for the accused-persons argued that a case under section 302, IPC is not made out against the accused, Manglaram, who has been found guilty of this offence. According to him, this is a clear case which falls under section 304, Part-II, IPC. He argued that Manglaram inflicted only one injuries to Tulchha on his leg by a blunt object. It was also argued by him that there was an on going dispute between the two parties with regard to some land which was under attachment u/s. Cr. PC on the application of Bhagwana. So, the dispute took place on account of some agricultural land, and the accused persons had no intention to cause death of Tulchha, argued the learned counsel, who also submitted that had there been any intention to murder Tulchha, he would have been given beating mercilessly by the accused persons who were about 16 in number. Tulchha, according to him, received only one fatal blow and that too was on his leg, which shows that the accused persons had on intention of committing murder of Tulchha. He submitted that the intention of the accused persons, at the most, could be that some injury was to be inflicted to Tulchha, and not more. In sudden fight or quarrel, the incident took place, and in that fight or quarrel, Manglaram inflicted injury by some blunt weapon on the leg of Tulchha (deceased). It was also argued by him that it cannot be inferred that Manglaram had any knowledge about the injury which he inflicted to Tulchha that that would cut the artery of the leg of Tulchha and that would result in his death. The injury was on the leg of Tulchha, as a result of which, the arteries were cut. Manglaram, according to the learned counsel, could not have anticipated that the injury which he was inflicting, would damage the artery of leg of Tulchha to this extent that that would cut the artery resulting in death of Tulchha. The injury was on the leg of Tulchha, as a result of which, the arteries were cut. Manglaram, according to the learned counsel, could not have anticipated that the injury which he was inflicting, would damage the artery of leg of Tulchha to this extent that that would cut the artery resulting in death of Tulchha. Therefore, according to the learned counsel for the accused persons, the case is completely covered by S. 304, Part II, IPC. 11. We have considered the argument of the learned counsel for the accused persons on this point. From the evidence on record, we are satisfied that the present case does not fall within the purview of S. 300, IPC. It cannot be inferred from the evidence that the accused persons had any common object to murder Tulchha. Nor even can it be inferred from the evidence that Manglaram inflicted the blow to Tulchha either with the intention of committing his murder r with the intention of inflicting such blow which was likely to cause his death. He had no intention to cause such bodily injury to Tulchha, which was likely to cause his death. The dispute arose on the heat of passion, and in that sudden fight or quarrel, some injury was inflicted on the leg of Tulchham by the accused persons. They had no knowledge or intention that that injury would cause death of Tulchha. So, in our view, at the most, a case under section 304, Part II, IPC, is made out 12. In Gokul Parashram Patil v. The State of Maharashtra, (AIR 1981 SC (NOC 1441) , their Lordships of the Supreme Court have observed: "When the solitary blow given by the accused to the deceased was on the left clavicle a non-vital part and the accused did not know that the superior venecava would be cut as a result of that wound, the injury though sufficient in the ordinary course of nature to cause death, was not one intended by the accused. Thus, to such a case, illustration (c) to S. 300 thirdly, was not attracted. Accordingly, accused could be convicted not under S. 302, IPC but under S. 304, Part II, IPC, and a sentence of 5 years' RI, would meet the ends of justice under the circumstances of the case." 13. Thus, to such a case, illustration (c) to S. 300 thirdly, was not attracted. Accordingly, accused could be convicted not under S. 302, IPC but under S. 304, Part II, IPC, and a sentence of 5 years' RI, would meet the ends of justice under the circumstances of the case." 13. In the present case, the incident took place on 3rd Aug., 1976, and if now, in the year 1985, the accused except Manglaram are ordered to be sent bolt to jail for undergoing the sentence awarded to them by the trial court, it would be most injust and improper. In our opinion, if the sentences of imprisonment already undergone by the accused persons except Manglaram diceaded, it would meet the ends of justice. 14. In the result, D.B. Cr. Appeal No. 167 of 1978, is partly accepted. The conviction and the sentence awarded to accused Manglaram, under section 302, IPC, are set aside; and instead, he is found guilty of the offence under section 304, Part II, IPC and sentenced to rigorous imprisonment for five years, and a fine of Rs. 200/-. In default, he shall undergo RI for 3 months. The conviction and the sentence awarded to Manglaram by the trial court under sections 452 & 148, IPC, are, however, maintained. The substantive sentences awarded to Manglaram accused, shall run concurrently. 15. The convictions of other accused person Rameshwar, Surjaram, Khinwaram, Hukmaram, Chetanram, Laxman, Kurdaram, Dudaram, Jeewan, Bhuraram, Bhagwana, Hukmara, Natha, Asharam, and Kanaram under sections 326/149, 324/149, 323/149, 452 amd 148, IPC, are maintained, but, instead of sending them back to jail, the period of sentence of imprisonment already undergone by these accused person, is awarded. The accused persons except Manglaram, are on bail. They need not surrender to their bail bonds, which are hereby cancelled. 16. Accused Manglaram is also on bail. The trial court is directed to issued warrant of arrest against him and sent him to jail to undergo the sentence of imprisonment awarded to him by this Court. 17. The learned counsel for the accused, Manglaram, should take steps for the surrender of Manglaram immediately. 18. A certified copy of this judgement should be issued the accused after such surrender and on production of the surrender-certificate of the authorities concerned. 19. D.B. Cr. Appeal No. 548 of 1978, filed by the State, having no force, is hereby dismissed.Appeal partly accepted. *******