Judgment B.N. Katju, J. 1. SRI Krishna, Sidh Gopal, Manni Lal and Roop Narain have filed this appeal against the judgment of Sessions Judge, Fatehpur dated 24-11-1981 passed in connected session trials Nos.517 of 1980 and 192 of 1981. All the appellants have been convicted under section 302/34 IPC and Section 24 of the Cattle Trespass Act and have been sentenced to life imprisonment and four months rigorous imprisonment respectively. SRI Krishna and Manni Lal appellants have further been convicted under section 427 IPC and have been sentenced to one year's rigorous imprisonment. Manni Lal and Roop Narain appellants have further been convicted under section 323/34 IPC and have been sentenced to one year's rigorous imprisonment. All the sentences were ordered to run concurrently. 2. SIDH Gopal and Roop Narain appellants are the sons of Sri Krishna appellant, Manni Lal appellant is their khandani. The case of the prosecution is that on 30-5-1980 at about 8 A. M. while Sheo Ram Prasad deceased was going to ease himself and his son Jugal Kishore PW 1 was going to watch his sugarcane field in village Prasad Tara hamlet of Jokara and had reached near their sugarcane field they saw eight or ten cattle of Manni Lal and Sri Krishna appellants grazing their sugarcane and Chari crop. They drove the cattle from their field and decided to take them to the cattle pound at Muttaur as they had caused a loss of about Rs. 500/- to them. When they were proceeding towards their house to take the younger brother of Jugal Kishore PW 1 and leave Sheo Ram Prasad deceased there and also take lathis with them and had reached near the field of Udai Narain, Sri Krishna and Sidh Gopal appellants armed with axes and Manni Lal and Roop Narain appellants armed with lathis came there and told them to release the cattle. When Sheo Ram Prasad deceased replied that he would not release their cattle as they had caused considerable damage to him and would take them to the cattle pound Manni Lal and Roop Narain appellants assaulted Sheo Ram Prasad deceased with lathis as a result of which he received injuries and fell down. When Jugul Kishore PW 1 tried to save the deceased he was also assaulted by them, with lathis. When Jugul Kishore PW 1 tried to save the deceased he was also assaulted by them, with lathis. Sri Krishna and Sidh Gopal appellants in the meantime assaulted the deceased, who had fallen down, with axes. On the alarm raised by Jugul Kishore PW 1, Ram Kripal PW 3, Paras Ram PW 5, Sita Ram and others came there and the appellants thereafter took the cattle and went away. 3. SHEO Ram Prasad deceased died while he was being taken to the police station soon after the incident. 4. THE first information report was lodged by Jugal Kishore PW 1 at Police Station Ghazipur at 11.30 A. M. on the same day 30-5-1980, the distance of the police station from the place of occurrence; being 12 Kms. The injuries of Jugul Kishore PW 1 were examined by Dr. U. P. S. Solanki PW 4 at 4 P. M. on 30-5-1980 and the under mentioned injuries were found on his person : 1. Lacerated wound 1/2" x 1/4" skin deep on left side of head 5" above the left ear, clotting present. 2. Contusiou 2-1/2" x 1" on left scapular rigion, reddish colour. 3. Abraded contusion 2" x 1/2" on left side of back 5" laterally to midline reddish colour. 4. Contusion 2" x 2" on middle [part of left hip reddish colour. 5. Contusion 2-1/2" x 1/2" on middle part of left leg back surface reddish colour. 6. Contusion 1-1/2" x 1" on back of left ankle joint, reddish colour. 5. THE post mortem examination on the body of the deceased was conducted by Dr. R. K. Katiyar PW 2 on 31-5-1980 at 1 P. M. and the under mentioned antemortem injuries were found on the body of the deceased : 1. Incised wound 2" x 1/2" muscle deep on the left side of occipital region 2-1/2" above the external occipital protuberance. 2. Incised wound 1-1/2" x 1/2" bone deep on the right frontal region 2-1/2" above the right eye brow with right black eye with fracture of the frontal and right parietal bone. 3. Incised wound 2" x 1/2" bone deep on the left frontal region 1" above the left eye brow with fracture of the frontal, right parietal right temporal bone and base of skull. 4. 3. Incised wound 2" x 1/2" bone deep on the left frontal region 1" above the left eye brow with fracture of the frontal, right parietal right temporal bone and base of skull. 4. Incised wound 3-1/2" x 1-1/2" bone deep on the left side face over maxillary area and cheek with fracture of the left maxilla and left zygomatic bone. 5. Incised wound 1/2" x 1/4" muscle deep on the back of left elbow. 6. Abrasion 1-1/2" x 1" on the back of the elbow left side 1" below the injury no. 5. 7. Abrasion 2-1/2" x 1/2" on the back of middle part of left forearm. 8. Contusion 2-1/2" x 1/2" on the postero lateral aspect of lower-part of left arm 1-1/2" above the injury no. 5. 9. Contusion 3-1/2" x 1" on lateral aspect of middle part of left thigh 8" below the iliac crest. 10. Abrasion 1/2" x 1/2" on the; lateral aspect of upper 3/4th of the left 1-1/2" below the patella. 11. Lacerated wound 1" x 1/4" muscle deep on the front of middle part of leg 6" below the patella. 12. Abrasion 1/4" x 1/4" on the front of left leg below the injury no. 10. 13. Abrasion 1" x 1/2" on the front of middle of left thigh, 6" above the patella. 6. ON internal examination the membrances and the brain were found to be lacerated and the base of the skull was found to be fractured. In the opinion of Dr. Katiyar PW 2 the injuries found on the body of the deceased were sufficient in tie ordinary course of nature to cause death. 7. THE prosecution examined three eye witnesses, namely, Jugul Kishore PW 1, Ram Kripal PW 3 and Paras Ram PW 5. 8. ALL the appellants pleaded not guilty and stated that they were implicated falsely due to enmity. The trial court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the appellants and convicted and sentenced them as mentioned earlier. 9. JUGUL Kishore PW 1 narrated the prosecution case as mentioned earlier.. His evidence is corroborated by Ram Kripal PW 3 and Paras Ram PW 5. The trial court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the appellants and convicted and sentenced them as mentioned earlier. 9. JUGUL Kishore PW 1 narrated the prosecution case as mentioned earlier.. His evidence is corroborated by Ram Kripal PW 3 and Paras Ram PW 5. It was stated by Ram Kripal PW 3 that he was plastering the wall of his house with mud when he heard the alarm raised by JUGUL Kishore PW 1 and the deceased and he ran to the field of Udai Narain which was at a distance of about 60 yards from his house and witnessed the incident. It was stated by Paras Ram PW 5 that he was in his old house when he heard noise and ran towards the field of Udai Narain and saw the incident. The explanation furnished by these three witnesses for their presence at the time of incident appears to be satisfactory. It is true that Jugal Kishore PW 1 is the son of the deceased and Ram Kripal PW 3 is the brother of the deceased but this is not sufficient to reject their testimony. Paras Ram PW 5 is independent, as there was no previous enmity between him and the appellants. 10. IT was admitted by Jugul Kishore PW 1 that there was no previous enmity between the appellants and the deceased and that they were also distantly related to each other. The cause of the incident was the grazing of the sugarcane field of the deceased by eight or ten cattle of Sri Krishna and Manni Lal appellants on the day of occurrence and the appellants met them while they were taking the cattle to the house of the deceased in the village on way to the cattle pound. The appellants did not immediately assault the deceased on meeting him. The appellants did not immediately assault the deceased on meeting him. IT was stated by Jugul Kishore PW 1 in his examination-in-chief that when Sheo Ram Prasad deceased did not agree to release the cattle of the appellants when he was asked to do so by them all the appellants assaulted him with their weapons but in his cross- examination it was stated by him that the deceased was first assaulted by Manni Lal and Roop Narain appellants with lathis when he was standing and Sri Krishna and Sidh Gopal appellants assaulted him with axes only after he had fallen down on receiving lathi injuries. Roop Narain and Manni Lal appellants did mot assault the deceased after he bad fallen down and was being assaulted by Sri Krishna . and Sidh Gopal appellants with axes. Paras Ram PW 5 has also clearly stated in his examination-in-chief that the deceased was assaulted by Manni Lal and Roop Narain appellants with lathis while he was standing and by Sri Krishna and Sidh Gopal appellants with axes after he had fallen down. IT is true that Ram Kripal PW 3 stated in his statement that all the appellants had also assaulted the deceased with their weapons after he had fallen down on being assaulted by Manni Lal and Roop Narain appellants with lathis but in view of the statements of Jugul Kishore PW 1 and Paras Ram PW 5 we are not prepared to accept this. Once it is held that Manni Lal and Roop Narain appellants assaulted the deceased with lathis on his refusal to release their cattle while he was standing and did not assault him after he had fallen down it cannot be held that the assault on the deceased by Sri Krishna and Sidh Gopal appellants with axes after the deceased had fallen down was in furtherance of their common intention. They are, therefore, guilty only under section 323/34 IPC for causing simple injuries to the deceased before he had fallen down and deserve to be sentenced to one year's rigorous imprisonment. They are also guilty under section 323/34 IPC for causing simple injuries to Jugul Kishore PW 1 when he tried to save the deceased at the time of the incident but the sentence of one year's rigorous imprisonment awarded to them thereunder appears to be excessive. They are also guilty under section 323/34 IPC for causing simple injuries to Jugul Kishore PW 1 when he tried to save the deceased at the time of the incident but the sentence of one year's rigorous imprisonment awarded to them thereunder appears to be excessive. Ends of justice would be met by reducing it to a fine of Rs. 1000/- each. Learned counsel for the appellants states that he does not consider it to be an enhancement of sentence. The assault on the deceased by Sri Krishna and Sidh Gopal appellants with axes took place after the deceased had fallen down on receiving lathi injuries at the time of the incident. Out of the five incised wounds received by the deceased three of them have caused fractures of the frontal, right temporal, base of skull, right parietal, mixilla and zygomatic bones whereas two of them one on the head and the other on the elbow were simple. IT js not known as to which of these injuries were caused by Sri Krishna and Sidh Gopal appellants. IT is quite possible that the three grievous injuries may have been caused to the deceased by only one of these two appellants and either one or both the simple injuries were caused to the deceased by the other appellant. IT is noteworthy that Sri Krishna appellant was aged about 70 years at the time of the incident. Considering the facts ;and circumstances of the case mentioned above and the injuries received by the deceased it cannot be held that the common intention of both the appellants, was to commit murder. They cannot, therefore, be held guilty under section 302/34 IPC. They are, however, clearly guilty under section 326/34 IPC and deserve to be sentenced to ten years rigorous imprisonment. This appeal is accordingly allowed in part. The conviction of Sri Krishna and Sidh Gopal appellants under section 302/34 IPC and the sentences of life imprisonment awarded to them thereunder are set aside and instead they are convicted under section 326/34 IPC and sentenced to ten years rigorous imprisonment. The conviction of Sri Krishna and Sidh Gopal; appellants under section 24 of Cattle Trespass Act and the sentence of four months rigorous imprisonment awarded to them thereunder are upheld. The conviction of Sri Krishna appellant under section 427 IPC and the sentence of one year's rigorous imprisonment awarded to him thereunder is upheld. The conviction of Sri Krishna and Sidh Gopal; appellants under section 24 of Cattle Trespass Act and the sentence of four months rigorous imprisonment awarded to them thereunder are upheld. The conviction of Sri Krishna appellant under section 427 IPC and the sentence of one year's rigorous imprisonment awarded to him thereunder is upheld. The conviction of Manni Lal and Roop Narain appellants under section 302/34 IPC and the sentences of life imprisonment awarded to them thereunder are set aside and instead they are convicted under section 323/34 IPC and sentenced to one year's rigorous imprisonment. Their conviction under section 24 of the Cattle Trespass Act and the sentence of four months rigonous imprisonment awarded to them thereunder is upheld. Their conviction under section 323/34 IPC for causing simple injuries to Jugul Kishore PW 1 is also upheld but the sentence of one year's rigorous imprisonment awarded to them thereunder is set aside and instead each of them is sentenced to pay a fine of Rs. 1000/- and in default of payment of fine they shall undergo three months rigorous imprisonment. Rs. 1000/- out of the fine when realised shall be paid as compensation to Jugul Kishore PW 1 under section 357 Cr. P.C. The conviction of Manni Lal appellant under section 427 IPC and the sentence of one year's rigorous imprisonment awarded to him thereunder is also upheld. All the sentences of imprisonment awarded to the appellants shall run concurrently. 11. ALL the appellants are on bail. They shall be taken into custody forthwith to serve out the sentences awarded to them. 12. THE process for realisation of fine awarded to the appellants shall not be issued before the expiry of one month from the date of the receipt of the record by the trial court. Appeal partly allowed.