S.S. BYAS, J.—The appeal is directed against the judgment of the Additional Sessions Judge No. 1. Alwar dated Feb. 28, 1986 by which the appellants Fateh Singh and Balwant Singh, who are father and son, were convicted u/s 302/34 I. P. C. and each was sentenced to imprisonment for life. 2. Briefly stated, the prosecution case is that at about 11.00 A.M. on 16.7.1981. Sooraj Bhan Singh appeared at police station Mundawar, District Alwar and presented written report Ex. P-6. It was stated therein that at about 11.30 A.M. on the preceeding day (15.7.1981) he, his father Sheo Narain and his mother P.W. 3 Smt. Bhagwani were going to village Kat Ka Mazra to pur-chase a she buffalo. When they reached in the Ghati of Kat Ka Mazra, the appellants suddenly emerged from a bush. Accused Fateh Singh had a gun which he fired in the air. Accused Balwant Singh had a Ballam. He struck a blow of his Ballam on the left foot of Sheo Narain. Sheo Narain fell down. Thereafter both the accused started landing blows to Sheo Narain with lathi and ballam. Sooraj Bhan and Smt. Bhagwani tried to intervene. Accused Fateh Singh again fired a shot in order to scare them. As a result of beating Sheo Narain sustained severe multiple injuries. There was profused bleeding from his injuries and the clothes he was wearing got drenched with it. The police registered a case u/sec. 302 etc. of the Penal Code and took up the investigation. The post mortem examination of the victims dead body was conducted at 4.15 P. M. on the same day by Dr. Rajesh Gupta. As many as 14 injuries were found on the dead body of Sheo Narain. The cause of death was haemorrhage and shock due to crush injury. The post mortem examination report issued by the Doctor is Ex. P-15. The appellants were arrested and in consequence of the information furnished by them, lathi and ballam were recovered. After when the investigation was over, the police presented a charge-sheet against the appellants in the court of Judicial Magistrate, Kishangarh Bas who in his turn committed the case for trial to the court of Sessions. The learned Additional Sessions Judge before whom the case came for trial framed charges u/s 302/34, 392/34 and 398/34 I. P. C. against both of them. They pleaded not guilty and faced the trial. The learned Additional Sessions Judge before whom the case came for trial framed charges u/s 302/34, 392/34 and 398/34 I. P. C. against both of them. They pleaded not guilty and faced the trial. In support of its case the prosecution examined 19 witnesses and filed some documents. In defence, no witness was examined. On the completion of trial, the learned Additional Sessions Judge held the charges u/s 392/34 and 398/34 I. P. C. not proved. He however, held the charge u/s 302/34 proved against both the appellants. The appellants were consequently convicted and sentenced as mentioned at the very outset. 3. We have heard the learned counsel for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully. 4. In assailing the conviction of the appellant Balwant Singh, it was contended by Mr. Dhankar before us that in the dying declaration recorded on the back of Ex. P-16, the name of accused Balwant Singh has not been mentioned. The contention is not without force. We have carefully examined the dying declaration made on the back of Ex. P-16. The dying declaration A to B has been recorded therein by the Doctor on duty. In this dying declaration, the deceased Sheo Narain stated that he was assaulted and balaboured only by accused Fateh Singh. The name of the other accused Balwant Singh has not been mentioned in this portion A to B. In the circumstances, the case against the accused Balwant Singh is not free from suspicion. It is true that the two eye witnesses (one is widow and the other is son of the deceased) have tried to implicate accused Balwant Singh. According to them, he had a ballam with which he inflicted injuries to the deceased victim. The post mortem examination report Ex. P-15 does not corroborate this fact. No injury caused by a weapon like Bhala or ballam was detected on the body of the deceased. As such the role assigned to accused Balwant Singh by the two eye witnesses cannot be accepted. We are, therefore unable to maintain the conviction of accused Balwant Singh. His presence on the spot does no stand established He is entitled to acquittal. 5. Coming to the case of accused Fateh Singh, learned counsel for the appellants did not challenge the incident and the role assigned to him. The only submission made by Mr. We are, therefore unable to maintain the conviction of accused Balwant Singh. His presence on the spot does no stand established He is entitled to acquittal. 5. Coming to the case of accused Fateh Singh, learned counsel for the appellants did not challenge the incident and the role assigned to him. The only submission made by Mr. Dhankar is that no offence u/s 302 I.P.C. is made out from the proved facts. It was argued that as per post mortem examination report Ex P-15, all the injuries were caused to the deceased victim on the non vital parts like hands, feet etc. No injury was inflicted on the vital parts like head or chest. No previous enmity has been suggested or proved. It was further argued that the Doctor who conducted the post mortem examination did not state that any of the injuries of the deceased victim was individually sufficient in the ordinary course of nature to cause death. It was argued that in these circumstances, the only offence made out against the accused Fateh Singh does not travel beyond section 304 part II I.P.C. In support of the contention, reliance was placed on Daya Singh Vs. State of Rajasthan (1). 6. In reply, the learned Public Prosecutor strive his best to support the conviction of accused Fateh Singh u/s 302/34 I.P.C. we have taken the respective submissions into consideration. 7. It can be said without any difficulty that no injury was inflicted to the deceased victim on any vital part of his body. The injuries were inflicted on hand, feet, leg etc. No injury was caused on his head or chest. In Daya Singhs Case, as many as 19 injuries including some on the scalp were caused but the intention to cause death was found missing. The offence was taken to be that under the II part of section 304 I.P.C. 8. The injuries were inflicted on hand, feet, leg etc. No injury was caused on his head or chest. In Daya Singhs Case, as many as 19 injuries including some on the scalp were caused but the intention to cause death was found missing. The offence was taken to be that under the II part of section 304 I.P.C. 8. In the facts and circumstances of the case specially when no injury was inflicted on the vital organ of the deceased victim and there was no intention to cause death on the part of the appellant Fateh Singh, we are unable to maintain the conviction of the appellant Fateh Singh u/s 302 I.P.C. However, since death has been caused, the case must at least fall within the II part of Section 304 I. P. C. because the Act was done with the knowledge that it is likely to cause death but without any intention to cause death or to cause injury as is likely to cause death. 9. In the result, we allow the appeal of accused Balwant Singh. His conviction and sentence u/s 302/34 I.P.C. are set aside and he is acquitted of the said offence He is already on bail and need not surrender. His bail bonds shall stand cancelled. 10. The appeal of accused Fateh Singh is partly allowed. His conviction and sentence u/s 302/34 IPC are set aside and instead he is convicted under the II part of sec. 304 I.P.C. and is sentenced to four years rigorous imprisonment with a fine of Rs. 500/-, in default of the payment of fine to further undergo three months like imprisonment. Accused Fateh Singh is allowed one months time to deposit the amount of fine. 11. The appeal shall stand accordingly disposed of.