A. G. QURESHI, J. ( 1 ) THE appellants have preferred this appeal against the judgment dated 30-4-1986 passed by Additional Sessions Judge, Ujjain in S. A. No. 253/85 convicting the appellants for committing offences under Sections 302/149 and Sections 323/149 I. P. C. and sentencing each one of them to undergo imprisonment for life and six months R. I. respectively. ( 2 ) FACTS leading to this appeal in short are that police Makdon, Distt. Ujjain submitted a charge- sheet against the present appellant before the J. M. F. C. Mahidpur u/ss. 147, 148, 149 and 307 I. P. C. on the allegations that on 18-11-1985, at about 7 A. M. at village Borkhedi, the appellant accused formed an unlawful assembly with the common object of committing the murder of Dhula s/c Bhagga and to cause simple injuries with blunt weapons to Balu and Narmadabai and in pursuance of that common objett, committed the murder of Dhula by inflicting injuries on him and also caused simple injuries to Balu and Narmada Bai at the same date time and place. ( 3 ) THE cause of the incident as alleged by the prosecution was that deceased Dhula had intially married his daughter Shantabai with accused appellant Deva. As Deva was ill-treating her, deceased Dhula got her second marriage performed to one Bhanwar of village Sherpur due to which the accused-appellants bore grudge against the deceased. At the time of the incident, Shantabai, her mother Narmadabai, brother Balu and her father deceased Dhula were at their house. All the six accused persons armed with deadly weapons reached the house of Dhula and asked him as to why he had performed second marriage of Santabai and thereafter saying now they will kill himtt, they started beating Dhula. Chander dealt a blow with a Dharia, on the head of Dhula Deva dealt a blow with a Hallam. Rajaram and Mangu dealt blows with Dharia. The deceased raised an alarm, hearing which, Narmadabai came out of the house, to whom Jaggu and Shiva dealt blows with lathis. Balu was also dealt blows with lathis when he came out of the house. Seeing this incident Shantabai ran towards the temple and accused persons went towards the Jungle. When she came back, she found her father lying in an unconscious condition. Balu was also dealt blows with lathis when he came out of the house. Seeing this incident Shantabai ran towards the temple and accused persons went towards the Jungle. When she came back, she found her father lying in an unconscious condition. She went to Chowkidar and in his company she lodged a report at the police station, which is Ex. P. 29. On the report, the police started investigation and during the investigation, it was found that the injured Dhula succumbed to his injuries. After the investigation an offence u/s 302 IPC along with other sections of the IPC was found to have been committed by the accused persons. Accordingly, a charge-sheet was submitted against the accused persons before the J. M. F. C. The learned Magistrate after, perusing the documents, committed the case for trial to the Court of Session. The learned ASI who tried the case, vide his impugned Judgment found the appellants guilty and consequently convicted and sentenced them as above. Hence, this appeal. 3. It is not disputed before us that the deceased Deva died a homicidal death. This ism also borne out from the testimony of Dr. Patidar, who bad performed the autopsy on the dead body of Dhula. According to Dr. Patidar there were II injuries on the person of the deceased. Injury No. 1 was an incised wound, injury No. 2 was a lacerated wound. Injuries 3 to 4 were penetrating wounds. Injury Nos. 5, 6, 7 and 8 were lacerated wounds and injuries 9 and 10 were abrasions and injury no. 11 was a penetrating wound. According to Dr. Patidar, Dhula died by stopping of heart due to flow of excessive blood, and he had died within 12 to 24 hours of the examination of the dead body. The testimony of Dr. Patidar finds corroboration from the testimony of P. W. 12 Shantabai, P. W. 13 Narmadabai and P. W. 14 Balu, who were the witnesses of the occurence. As such we concurs with the finding of the trial court that the deceased Dhula died a homicidal death. The testimony of Dr. Patidar finds corroboration from the testimony of P. W. 12 Shantabai, P. W. 13 Narmadabai and P. W. 14 Balu, who were the witnesses of the occurence. As such we concurs with the finding of the trial court that the deceased Dhula died a homicidal death. ( 4 ) THE learned counsel for the appellant Shri Jaisingh has however, assailed the finding of the trial court on the ground that the testimony of the eye witnesses should Dot have been relied upon by the trial court for holding the appellants guilty because the eye witnesses are closely related to the deceased and they had an axe to grind against the accused persons. ( 5 ) IT is true that the eye witness P. W. 12. Shatntabai, P. W. 13 Narmadabai and P. W. 14 Balu are closely related to the deceased. But simply because they are related, their testimony cannot be discarded as being untrustworthy, especially when Shantabai bad promptly lodged the FIR at the police station about the incident and, before that they bad Darrated the incident to the Chowkidar of the village. P. W. 13 Narmadabai and P. W. 14 Balu had received injuries during the incident itself. Therefore their presence on the spot cannot be doubted. After perusing the evidence of all these three eye -witnesses, there is no such infirmity which may render the testimony of these witnesses doubtful or untrustworthy. P. W. 12 Shantabai has categorically deposed that at the time of the incident, she was at her home and her father, mother and brother were also present. At that time, the accused persons armed with weapons, reached the place of incident and said that because the deceased had got his daughter (this witness P. W. 12) remarried, they will kill him and saying this they started assault on the deceased. Chander dealt a blow with a Dharia on the head of the deceased. Deva dealt a blow with a spear on both the legs of the deceased. Rajaram dealt blows with Dharia on the legs of the deceased and Mangu dealt a blow with Dharia on the head of the deceased. When Deva raised an alarm P. W. 13 Narmadabai came out of the house. Jaggu and Shiva dealt blows with lathl to her and thereafter to P. W. 14 Balu. Rajaram dealt blows with Dharia on the legs of the deceased and Mangu dealt a blow with Dharia on the head of the deceased. When Deva raised an alarm P. W. 13 Narmadabai came out of the house. Jaggu and Shiva dealt blows with lathl to her and thereafter to P. W. 14 Balu. Thereafter the accused persons went towards the jungle and seeing this incident, this witness went towards the temple, on returning from the temple, this witness reached back home and then narrated him the incident. She then went to the police station for lodging the report. This witness has been cross - examined at length. But nothing has been brought on record to show that she is telling a lie or even making exaggerated statement. ( 6 ) NARMADABAI (P. W. 13) also corroborates the testimony of Shantabai - and gives the same version of the incident as has been given by P. W. 12 Shantabai. As a result of her crossexamination, the defence could not bring out any such material which may make the testimony of this witness doubtful. P. W. 14 Balu also makes a statement consistent to the statement of P. W. 12 and P. W. 13 and nothing has been pointed out to us to show that his statement is contradictory to the statements of other eye - witnesses on any material particulars or that the statement is of such a nature which may render his testimoney doubtful. As such we find that the statements of all the three eye -witnesses are consistent and do not suffer from any such infirmity which may make the statements untrustworthy or doubtful. Therefore, we hold that the trial court has rightly relied upon the testimony of the eye witnesses to arrive at a conclusion that all the six appellants had formed an unlawful assembly and as a result of the common object of the assembly, they dealt blows to the deceased Dhula, Narmadabai and Balu. Therefore, we hold that the trial court has rightly relied upon the testimony of the eye witnesses to arrive at a conclusion that all the six appellants had formed an unlawful assembly and as a result of the common object of the assembly, they dealt blows to the deceased Dhula, Narmadabai and Balu. ( 7 ) LEARNED counsel for the appellants Shri Jaisingh next contends that even if it is proved that the injuries were caused by the accused persons to the deceased, still an offence u/s 302 IPC is not made out for the simple reason that none of the injuries caused by the appellants was of grievious nature and that none of the injuries was sufficient in the ordinary course of nature to cause death. The medical evidence does not disclose that even the cumulative effect of the injuries was sufficient in the ordinary course of nature to cause death. According to the learned defence counsel, the death of the deceased was caused because of the stopping of the heart due to excessive bleeding from injuries to leg and therefore, it cannot be said that the accused persons had the common object of causing such injuries to the deceased persons which were sufficient in the ordinary course of nature to cause his death. Therefore the intention of the accused person at the most can be inferred of causing simple injuries with sharp weapons. As such the appellant can be convicted for committing an offences u/s 324 IPC read with Section 149 IPC, is, therefore erroneous. ( 8 ) AFTER perusing the record, we find that P. W. 1 Dr. Patidar who had performed autopsy on the dead body of the deceased Dhula has not stated that any of the injuries caused to the deceased was sufficient in the ordinary course of nature to cause the death. He has also not stated that the cumulative effect of the injuries was sufficient in the ordinary course of nature to cause the death of the deceased. Although the deceased had received 11 injuries, out of which one incised wound and one lacerated wound were on the head. Those injuries were not sufficient in the ordinary course of nature to cause the death of the deceased. The other injuries were not on any vital part of the body, and were simple in nature. Although the deceased had received 11 injuries, out of which one incised wound and one lacerated wound were on the head. Those injuries were not sufficient in the ordinary course of nature to cause the death of the deceased. The other injuries were not on any vital part of the body, and were simple in nature. In Jivram v. State1 there were only 4 injuries on the person of the deceased. In view of the circumstances of the case, the accused appellant in that case was convicted for an offence u/s 323 IPC instead of u/s 302 IPC. However, the facts and circumstances of that case are different than the instant case and although the Rajasthan case has been relied upon by the learned counsel for the appellants for supporting his argument, the judgment does not help the accused persons in any way. However, the other case cited by the learned counsel for the appellant, Jairam v. State of Tamil Nadu2 does lend support to the argument of the defence counsel that the appellants can be held guilty for committing offence u/s 304 in place of u/s 302 of the I. P. C. in that case, the Supreme Court has drawn a distinction between the cases which fall under Clause thirdly of Section 300 IPC and the cases where that clause is not attracted. The Supreme Court has held as under: If the act of the accused falls under Clause (b) of Section 299, that is to say, if the intended bodily injury is likely to cause death as distinguished from one which is sufficient to cause death in the ordinary course of nature, Clause Thirdly of Section 300 would not apply. Exactly this is the situation in the present case. The offence committed by the appellant would therefore fall under the First Part of the 5. 304 Indian Penal Code. In view of the aforesaid Supreme Court Authority, it is clear that for attracting the provision of Clause Thirdly of Section 300 IPC, the prosecution should prove that the injuries on the person of the deceased were caused with an intention to inflict those injuries and none of the injuries was caused un intentionally. It should further be proved that the injuries caused to the deceased were sufficient in the ordinary course of nature to cause his death. It should further be proved that the injuries caused to the deceased were sufficient in the ordinary course of nature to cause his death. As discussed above in the instant case, the prosecution has failed to prove that any of the injuries was sufficient in the ordinary course of nature to cause death or that the cumulative effect of the injuries caused to the deceased was sufficient in the ordinary course of nature to cause death or that cumulatively, the injuries were sufficient in the ordinary course of nature to cause death. However, it cannot be disputed that the injuries caused to the deceased were likely to cause death of the deceased and the intention of the appellants can be inferred that they wanted to cause such injuries to the deceased which were likely to cause his death from the number of injuries and the weapons used by the accused persons for inflicting those injuries. Therefore, it can safely be held that the common object of the unlawful assembly formed by the appellants was to cause such bodily injury to the appellant which were likely to cause his death. Consequently, the act of the appellant falls within the definition of Section 304 (Part-I) of the IPC. ( 9 ). As a result of the aforesaid discussion, the appeal of the appellant is partly allowed. They are acquitted of the offence u/s 302 and u/s 149 of the IPC. Instead, they are convicted for committing an offence u/s 304 (Part 1) read with section 149 of the IPC. The conviction of the appellant u/s 323 read with section 149 of the IPC is proper and nothing has been pointed out to us which may persuade us to take a different view then one taken by the trial Court. As a result, the conviction and sentence of the appellants passed by the trial Court u/s 302 read with Section 149 IPC, are set aside. Instead, each of the appellants is convicted u/s 304 (Part I) read with Section 149 of IPC, and is sentenced to undergo RI for 10 years for committing that offence. The conviction and sentence awarded by the trial court to the appellants u/s 323 read with Section 149 IPC are maintained. Both the sentences are ordered to run concurrently. Appeal party allowed .