JUDGMENT 1. - This appeal by the accused is directed against the judgment dated the 3rd August, 1976, of the Additional Sessions Judge No. 1, Jodhpur, convicting the appellants Bhera for the offence under Section 302 I.P.C. and appellant Teelu under Section 302 read with 34 IPC and sentencing both the appellants to imprisonment for life for the said offences. The case relates to the incident which took place on October 20, 1975, in the field of Ganesh Suthar, resident of Chandni, Police Station Sankra, district Jaisalmer. The prosecution case, in brief, was that in the field of Raimal Meghwal which is adjacent to the fields of Ganesh, the accused appellants Bhera and Teelu sons of Raimal were plucking ears of Bazra. Near to that field Kasam was grazing cattle belonging to Rupekhan. The cattle entered the field were the accused where working and on account of this they surrounded the cattle and were taking them to the cattle pond. This was resisted by Kasam. He raised an alarm which attracted Rupe Khan and others to the scence of occurrence. Resham deceased was also one of them who came there armed with a kassi. Hot words were exchanged between the parties. The case of the prosecution, further, is that Teelu and Pukha caught hold of Resham and the appellant Bhera snatched the kassi from him and inflicted an injury by the same on his head. Pirulal and Ramjan also reached there. The accused then left the place. Resham became un-conscience and was taken to the dhani where he died in the night. The first information report of the occurrence was lodged by Rupekhan at Police Station Sankra on October 21, 1975 at 11 A.M. on which a case under Section 302 IPC was registered. Shri Laxman Singh Station House Officer proceeded to the spot; prepared the site memo; took blood stained earth and prepared the inquest memo. During investigation he also recovered a Kassi on the information and at the instance of the accused Bhera. After investigation a charge-sheet was filed in the court of Judicial Magistrate, Pokaran, against the appellants and co-accused Purkha. The accused were then committed to the court of Sessions to stand trial for the offence under Sections 302 and 302/34 IPC. During investigation he also recovered a Kassi on the information and at the instance of the accused Bhera. After investigation a charge-sheet was filed in the court of Judicial Magistrate, Pokaran, against the appellants and co-accused Purkha. The accused were then committed to the court of Sessions to stand trial for the offence under Sections 302 and 302/34 IPC. The Additional Sessions Judge framed charges for the said offences and recorded their plea to which the accused pleaded not guilty and claimed to be tired. 2. The prosecution in support of its case examined as many as 12 witnesses, including Rupekhan PW 1, Kasam PW 2, Pirulal PW 5, Bherdeen PW 6, Ramjan PW 7 and Mangla PW 10 who claimed to be the eye witnesses of the occurrence. Dr. Jitendra Kumar who was the Medical Officer incharge had conducted the post-mortem examination of the deceased was examined to prove his injuries. According to the doctor deceased Reshma had the following injuries on his body: "1. Incised wound 6-5 cm. x 0.2 cm x 0.3 cm on scalp left side 7 cm. above left eye brow. 2. Abrasion 4.5 cm. x 0.2 cm. on nose from lip to words left alec noser. 3. Abrasion 2.2 x 0.5 cm on left upper lip. 4. Lacerated wound 1.5 cm. x 0.5 cm. x 0.3 cm. on inner side of left upper lip. 5. Multiple injuries over back covered by cm. star (torn)." The internal examination of the dead body revealed that there was extra dural clot over the mambrance partieal region due to rupture of meningeal vessel. He found no evidence of any fracture of the skull. Nothing abnormal was detected on the brain, base of skull, vertebra and spinal cord. According to the doctor the cause of death was shock due to intra carnial haemorrhage. 3. In their statements recorded under Section 313 Cr. PC the accused denied the prosecution allegations and stated that they were innocent. Bhera, however, stated that cattle belonging to the complainant party had entered their field and they were carrying the same to cattle pond. Resham resisted and made as attack on him. He and Resham grappled as a result of which Resham fell down. People separated them and then Resham went away from there. No, MARPEET took place and that he did not cause any Kassi injury to any one. 4. Resham resisted and made as attack on him. He and Resham grappled as a result of which Resham fell down. People separated them and then Resham went away from there. No, MARPEET took place and that he did not cause any Kassi injury to any one. 4. In defence the accused produced 4 witnesses, namely, Ganesh Ram, Jor Singh. Goma and Dr. Ganga Ram to support their version. Dr. Ganga Ram was examined to prove that the injury on the skull of the deceased causing intra carnial haemorrhage could be the result of a fall if a person falls on the sharp edge or some sharp edged weapon. 5. By his judgment dated the 3rd August 1976, the Additional Sessions Judge acquitted Purkha, but convicted and sentenced the accused appellants as aforesaid. The Additional Sessions Judge held that there was no pre-existing enmity, illwill between the parties. The occurrence took place on account of the seizure and taking of cattle to the cattle pond. A fight ensued as Resham resisted the taking of the cattle. The accused commenced driving the cattle to the cattle pond when they entered their field where there was a standing crop. The alarm raised by Kasam attracted Resham, Rupekhan and others. Resham had come with a kassi in his hand. Bhera succeeded in snatching the kassi and inflicted injuries on Resham by the same. The Additional Sessions Judge, after analysing the evidence came to the conclusion that Bhera was the author of the injuries of Resham, which resulted in his death and he was liable to be convicted for the offence under Section 302 IPC. Taking the case of Teelu, the Additional Sessions Judge held that by catching hold of Resham he assisted and abeted Bhera and thereby shared the common intention to cause the death of Resham. He was, therefore, guilty for the offence under Section 302 read with Section 34 IPC. 6. Aggrieved by the aforesaid judgment of the Additional Sessions Judge the appellants have filed the present appeal in this Court. 7. WE have heard Shri D.K. Purohit, Advocate for the appellants and Shri S.K. Mathur, Public Prosecutor for the State. 8. There is no dispute that Resham died of the injury which he received on his head. It was an incised wound and could have been caused by a kassi. Dr. 7. WE have heard Shri D.K. Purohit, Advocate for the appellants and Shri S.K. Mathur, Public Prosecutor for the State. 8. There is no dispute that Resham died of the injury which he received on his head. It was an incised wound and could have been caused by a kassi. Dr. Jitendra Kumar who performed the post-mortem of the deceased has proved the injuries and has deposed that the cause of his death was shock due to intra-carnial haemorhage. It was thus an homicidal death. The question for consideration, therefore, is whether the accused appellants can be held responsible for the same. So far as appellant Teelu is concerned, none of the prosecution witnesses has ascribed any injury to him. The only part assigned to this accused is that he caught hold of Resham, who had come there armed with a kassi. The evidence of the prosecution witnesses on this part of the case that Teelu is quite discrepant. It appears to be an obvious attempt on the part of the prosecution witnesses to implicate Teelu by assigning him this part. Teelu is the brother of Bhera. We do not accept the evidence of the of the prosecution witnesses to the effect that this accused caught hold of Resham who came there armed with a kassi. Even otherwise the part assigned to this accused docs not land to the inference that he shared the common object with Bhera to cause the death of Resham. Obviously Rhera was not, at ail, armed with any weapon when Teelu is alleged to have caught Resham by the hands. Bhera acquired the weapon afterwards and it was his own individual act and for this the accused Teelu cannot be held vicariously liable. No injury received by Resham has been attributed to this accused. There is not even a suggestion that he participated in the beating given to Resliam. No offence is therefore, made out against Teelu and he is entitled to be acquitted of the charge under Section 302 read with Section 34 IPC, 9. The case against Bhera is, however, different. All the witnesses including those who have turned hostile have deposed that the incised wound on the head of Resham which resulted in his death was caused by this accused. Bhera, himself, in his statement under Section 313 Cr. PC has admitted his presence at the time of the occurrence. The case against Bhera is, however, different. All the witnesses including those who have turned hostile have deposed that the incised wound on the head of Resham which resulted in his death was caused by this accused. Bhera, himself, in his statement under Section 313 Cr. PC has admitted his presence at the time of the occurrence. He has also admitted that he and deceased had grappled. True, he has denied that he inflicted the kassi blow on the head of the deceased. However, the learned Additional Sessions Judge has come to the conclusion, and rightly so, that it was accused Bhera who was the author of the injury of the deceased Resham, which proved fatal, After going through the evidence of the witnesses, we agree with the findings recorded by the learned Additional Sessions Judge. The evidence of the eye witnesses including those who have turned hostile, fully bear out this conclusion. We affirm the finding and hold that the incised wound on the head of deceased Resham, which resulted in his death, was caused by accused Bhera. The counsel for the accused has not been able to show any weakness in the prosecution evidence to reverse this finding of the learned Additional Sessions Judge. 10. As regards the nature of offence the Additional Sessions Judge has held that the offence made out against the appellant Bhera would be under Section 302 IPC. There is no against that the act of the accused was not pre-meditated. No enmity between the parties has even been suggested by the prosecution. The accused had no motive and were in their field plucking ears from their Bajra crop. It was the unlawful entry of the cattle belonging has, no doubt, denied the suggestion that the cattle belonging to Rupekhan which gave rise to the present incident. The prosecution has, no doubt, denied the suggestion that the cattle belonging to the complainant party had entered the accused's field but this denial seems us to be not true. Considering the fact and circumstances of the case it appears clear to us that the cattle of the complainant party must have entered the field of the accused and caused and caused damage to their crop a circumstance which prompted the accused to seize and carry the cattle to the cattle pond. There is no dispute that the accused were unarmed. There is no dispute that the accused were unarmed. It is the prosecution case itself that it was deceased Resham who had come there armed with a kassi. The accused snatched the same kassi from Resham and inflicted only one blow to him by the said kassi. No second blow was repeated. No other injury is imputed to the accused. the other injuries on the body of the deceased Resham are superficial and could have been the result of his fall on the ground. Even this injury on the body of Resham caused by the kassi has not described by the doctor to be 'sufficient in the ordinary course of nature to cause death'. No nature of any bone was found by the doctor. Nothing abnormal was detected on the skull or brain. In the circumstances it is also difficult to held that the accused had intended to cause the injury on the head of the deceased. An intention to kill cannot therefore be inferred against the accused. The case against appellant Bhera would is no case exceed Section 304 Part II IPC as only a knowledge that the injury caused to the deceased was likely to result in his death can be attributed to the accused. His conviction for the offence under Section 302 II IPC, therefore, deserves to be altered to the one under Section 304 Part II IPC. 11. The result is that the appeal of Teelu is allowed. His conviction and sentence for the offence under sEction 302/34 IPC is set aside and he is acquitted of the said charge. The appeal filed by accused Bhera is partly allowed. His conviction for the offence under Section 302 IPC is altered to Section 304 Part II IPC. He has already remained in custody for over two years and 10 months. The offence is more than 10 old. He is on bail since Agust 2, 1978. It would not be in the interest of justice to send him to jail again after a period of 8 years. The sentence already undergone by him would meet the ends of justice.Appeal partly allowed. *******