JUDGMENT 1. - These two appeals out of the same judgment of the learned Sessions Judge, Sriganganagar are being disposed of by a single judgment. 2. Briefly stated, the fact of the case are that one Lalsingh resident of Khatalbana had five sons, viz. Foja Singh, Puransingh, Surjansingh, Jangirsingh and Dalipsingh. Jangirsingh used to live in a separate house. There appears to be some dispute about money dealings between Lalsingh and his son Jangirsingh and according to Smt. Bachan Kaur wife of deceased Jangir Singh, a report of an earlier incident in which Lalsingh etc. had quarrelled with Jangirsingh had been lodged before the police. This had incensed Lalsingh etc. and therefore, on August 23, 1985 at about 7.00 PM Lalsingh, his sons Fojasingh, Puransingh, Surjansingh accompanied with Gurmeetsingh. Paramjeetsingh and Jogendra Singh came to the house of deceased Jangirsingh. Fojasingh is alleged to have come after scaling the wall and having a Gandasi in his hand, whereas the other persons, are said to have come from the main door of the house armed with different weapons like `Lathi', spear, Kripan etc. Jangirsingh was at that time sitting on a cot and his wife Bachan Kaur as also his son Chhindrapalsingh were also in the house. Fojasingh gave a blow with the blunt side of the `Gandasi' on the head of Jangirsingh. Jangirsingh fell down from the cot. The other persons kept standing a little away from Jangir Singh. In the meantime, Dilipsingh, another son of Lalsingh as also Kashmiri Bai and Jwala Bai came into the house after scaling over the wall and they told the accused who were already there to leave the place because it was not certain whether Jangir Singh would live or not. On this, these accused persons came out-side the house of Jangir Singh and it is alleged that they kept standing out side the house in order to prevent any inmate in the house to report the matter to the police. However on the next morning, Bachhan Kaur and Dalip Singh carried the injured Jangir Singh to Fatuhi Hospital, where, Dr. Narendra Singh Gill (P. W. 4) examined the injuries of Jangir Singh and also reported the matter to the Police Station, Hindumalkot vide Ex. However on the next morning, Bachhan Kaur and Dalip Singh carried the injured Jangir Singh to Fatuhi Hospital, where, Dr. Narendra Singh Gill (P. W. 4) examined the injuries of Jangir Singh and also reported the matter to the Police Station, Hindumalkot vide Ex. P/3 in which he mentioned that he had admitted Jangir Singh in injured condition in his hospital and requested the police to come at the earliest and to do the needful. This intimation reached the Police Station, Hindumalkot at about 8.40 PM. On this, P.W. 9 Kishanlal reached Shivpur (Fatuhi) Hospital and recorded the statement of Bachhan Kaur. Jangir Singh himself was said not to be in a position to make any statement. The statement of Smt. Bachhan Kaur was then carried to the Police Station, Hindumalkot where it was created as first information report and the case under sec. 452 and s. 307, I.P.C. along with s. 147, 149, 148 and 323, I.P.C. was registered. It appears that later the injured Jangirsingh was also shifted from Shivpur (Fatuhi) Hospital to Sriganganagar Hospital and he was admitted there in the male surgical ward A on 24.8.85. He succumbed to the injuries on August 26, 1985 and thereupon the case was converted to be under sec. 302, I.P.C. The postmortem examination of Jangir Singh was conducted by P. W. 8 Dr. Rajendra Kumar Gupta on 26.8.85 at 11.30 AM and he found the following injuries on his person: "Lacerated wound 11/4" X 1/4" X bone deep with pus wound is irregular on the right frontal region 3" above Rt. eye-brow is lateral to mid line. Underlying bone fractured. Injury grievous in nature and due to blunt weapon." On opening the body, he found diffused haemotoma under scalp, fracture of right fronto perietal bone, fronto parietal rupture gapping and there was diffused haemotoma extradural on both fronto parietal haemosphere. Brain membranes were conjested. In his opinion, the cause of death was coma, due to extradural haemotoma. He was also of the opinion that the injury was sufficient in the ordinary course of nature to cause death and was anti-mortem in nature. He was further of the opinion that the injury had been caused by heavy blunt object and prepared the post-mortem examination report Ex. P/7. After completion of the investigation a challan was put up against seven accused except Satnam Singh. Charges for offences under sec. He was further of the opinion that the injury had been caused by heavy blunt object and prepared the post-mortem examination report Ex. P/7. After completion of the investigation a challan was put up against seven accused except Satnam Singh. Charges for offences under sec. 148, 452, 302 and 323/149, I.P.C. were framed against Foja Singh and those under s. 148, 452 and 302/149, I.P.C. were framed against other accused persons. They pleaded not guilty and claimed to be tried. The prosecution examined 9 witnesses and produced a large number of documents. The accused maintained their plea of denial when examined under sec. 313 Cr. P. C but did not produce any evidence in defence. On concision of the trial, the learned Sessions Judge convicted Foja Singh under sec. 302, I.P.C. and 452 and 323, I.P.C. He acquitted the other accused persons of all the charges other than 452, I.PC. Foja Singh has been sentenced to imprisonment for life plus two years' R. L. and a fine of Rs 1000/- u/s. 452, I.P.C; in default of payment of fine, to undergo 2 month' simple imprisonment; and under sec. 323 I.P.C. he has been sentenced to six months' R L. The substantive sentences have been made to run concurrently. While convicting the other accused under sec. 452, I.P.C., the learned Judge sentenced Surjan Singh and Puransingh to two years' R.I. and a fine of Rs. 1000/-; in default of payment of fine, to further undergo two months' simple imprisonment. The other accused Gurmeetsingh, Paramjeetsmgh, Jogendrasingh and Lalsingh have been given benefit of probation since Lalsingh was about 80 years of age and the other three were below 21 years of age. Being aggrieved of their convictions and sentences Fojasingh has filed Appeal No.225/86, whereas Puransingh & Surjan Singh have filed Appeal No. 255/86. Although this appeal filed by Surjansingh and Puran Singh was liable to be heard by a single bench, but since the two matters were connected, that appeal has also been heard along with Fojasingh's appeal with the consent of the learned counsel for the appellant Surjansingh and Puransingh. 3. We have heard learned counsel for the appellants and the learned Public Prosecutor and have gone through the record. 4. 3. We have heard learned counsel for the appellants and the learned Public Prosecutor and have gone through the record. 4. So far as accused-appellant Fojasingh is concerned learned counsel for the appellant candidly did not challenge the prosecution story as such, but urged that in the circumstances of the case, Foja Singh could not have been convicted under Section 302, IPC but should have been convicted under Section 325, IPC or at the worst under section 304, Part II, I.P.C. and so far as accused Sujansingh and Puransingh are concerned, the contention of the learned counsel for the appellant is that it is clearly a case of over-implication and these two appellants have wrongly been convicted even under Section 452, IPC. In the alternative, he also urged that even if their presence in the house of the deceased is accepted, it could not be said to be with preparation to commit an offence and, therefore, they could be convicted under Section 451, I.P.C. Learned Public Prosecutor, on the other hand, has supported the judgment of the learned Sessions Judge. We have given our careful consideration to the rival contention. We shall first take up the question of the nature of offence with regard to the accused Fojasingh. 5. There witnesses have been examined on behalf of prosecution viz. Bachhan Kaur (P.W. 1), Dalip Singh (P.W. 2) and Chhindrapal Singh (P.W. 3). Dalipsingh (P W. 2) has turned hostile and does not support the prosecution story. Bachhankaur and Chhindrapal Singh have of course supported the prosecution case and they have stated that it was from the blunt side of the Gandasi that Foja Singh inflicted the blow on the head of Jangirsingh while Jangir Singh was sitting on a cot in his house. He did not give any other blow. It is also stated by Smt. Bachhan Kaur that on receiving the blow on his head, Jangirsingh had fallen down from the cot. It is also clear from the evidence of Smt. Bachhan Kaur that there had been some dispute between Lal Singh and Jangir Singh and Jangir Singh had lodged report against Lal Singh in respect of an earlier occasion when Lal Singh is alleged to have assaulted him. It was this, which had incensed Lalsingh and, therefore, he along with other persons had gone to the house of Jangir Singh. It was this, which had incensed Lalsingh and, therefore, he along with other persons had gone to the house of Jangir Singh. It will appear from the prosecution story given out by Smt. Bachhan Kaur that although other accused persons were also armed with Lathis, Kripan etc. on injury was caused to Jangir Singh or to Bachhan Kaur except the injury on the head of Jangir Singh, already stated above. The deceased was the brother of Fojasingh and in these circumstances, it does not appear that Foja Singh had any intention to kill him. This is further supported from the fact that although he was armed with Gandasi, he did not use the sharp side of the Gandasi but gave a blow and that too a single blow with the blunt side of the Gandasi. Further, it also appears that having received the blow on the head, Jangir Singh had fallen down from the cot and the injury may have been aggravated by the fall also. In these circumstances, it also cannot be said that Foja Singh caused the injury attributed to him with the intention of causing such an injury which was sufficient in the ordinary course of nature to cause death. Dr. Rajendra Kumar (P.W. 8) has of course, stated that the injury caused was sufficient in the ordinary course of nature to cause death, but in order to bring the case under S. 300, clause 3rdly, it is to be further established that the accused really intended to cause the particular injury and that injury was sufficient in the ordinary course of nature to cause death. In the circumstances pointed out above, we are clearly of the opinion that it cannot be said that the accused really intended to cause the particulary injury which has unfortunately proved fatal. Learned Public Prosecutor, however, urged that it was not put to Dr. Rajendra Kumar that the fall from the cot could have aggravated the injury or resulted into haemotoma. In this connection, it is to be noted that in the first instance, injured Jangir Singh was taken to the Fatuhi hospital where some sort of treatment was given to him and thereafter, he had been carried to Ganganagar Hospital where he had been operated upon and he survived for almost three days. In this connection, it is to be noted that in the first instance, injured Jangir Singh was taken to the Fatuhi hospital where some sort of treatment was given to him and thereafter, he had been carried to Ganganagar Hospital where he had been operated upon and he survived for almost three days. The doctor, who performed the operation on him, has not been produced, who could as a matter of fact, have been in a position to elucidate the matter further and in these circumstances, the mere fact that this question had not been put to Dr. Rajendra Kumar, would not help the prosecution. It was for the prosecution to prove that the injury attributed to the accused, was sufficient in the ordinary course of nature to cause death and if there was any other circumstance, which could have added to the gravity of the injury, it was also for the prosecution to rule it out. The prosecution is required to prove its case beyond all reasonable doubt and, therefore, such a doubt had to be dispelled by clear evidence by the prosecution. The accused, in these circumstances, could not have been convicted under sec. 302. I.P.C. because his case does not fall under any of the four clauses of s. 300, I.P.C. 6. We do not agree with the learned counsel for the appellant that he could only have been convicted under s. 325, I.P.C. because in the circumstances, when he gave the blow with a heavy object like Gandasi on the head with sufficient force, he could certainly be attributed with the knowledge that his act was likely to cause death and, therefore, he can be convicted under sec. 304, Part II, I.P.C. 7. Now, coming to the appeal filed by Surjansingh and Puransingh, we find that it appears to be a case of over-implication and in our opinion, the offence under sec. 452, I.P.C. cannot be said to have been brought home to the accused beyond reasonable doubt. In this connection, it may be stated that the fact that accused Foja Singh had come after scaling over the well between the houses of deceased and Pathan Singh, whereas the other accused came from the main gate of the house of the deceased Jangir Singh, is an important factor to be kept in view. The learned Sessions Judge has not convicted these accused persons under sec. The learned Sessions Judge has not convicted these accused persons under sec. 302 read with s. 149, I.P.C. or s. 147 or s. 148, I.P.C.; they were not, thus, the members of an unlawful assembly nor can they be said to have any common intention with Foja Singh. Therefore, their entry in the house of Jangir Singh having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt or of assault or of wrongful assault, cannot be envisaged. In this connection, one other salient circumstance to be taken into account is that even the prosecution witness Dalipsingh, Smt. Kashmiri Bai and Smt. Jwala Bai are said to have entered the house after scaling over the wall and, therefore the possibility that those other accused persons may have also come into the house of Jangirsingh seeing Fojasingh going their armed with Gandasi after scaling the well, cannot be ruled out. They did not have any direct animosity with the deceased. Further, even though they are alleged to have been armed, they did not cause any harm to deceased Jangir Singh or even to his wife or any other inmate of the house. If they had any intention to cause hurt to any of them as alleged by the prosecution, they would not have stood like mere spectators. Learned Public Prosecutor, of course, urged that when Fojasingh had already inflicted a blow with the Gandasi on the head of the deceased, these persons may not have further participated in the assault but, we are not prepared to accept this contention. It is difficult to believe that having entered the house after having made preparation for causing hurt, they would have stopped only because Fojasingh had caused just a single injury to Jangir Singh. We are, therefore, clearly of the opinion that their entry in the house with any unlawful object cannot be said to have been made out and, therefore, their conviction under sec. 452. I P.C., cannot be maintained and they cannot be held guilty of committing any minor offences either. They are entitled to acquittal. 8. The result, therefore, is that Fojasingh's appeal is partly allowed. His conviction under sec. 302, IPC and the sentence awarded thereunder is set aside; instead, he is convicted under sec. 452. I P.C., cannot be maintained and they cannot be held guilty of committing any minor offences either. They are entitled to acquittal. 8. The result, therefore, is that Fojasingh's appeal is partly allowed. His conviction under sec. 302, IPC and the sentence awarded thereunder is set aside; instead, he is convicted under sec. 304, Part II, IPC and sentenced to five years' R.I. and a fine of Rs. 10,000/-; in default of payment of fine, he will undergo one year's further R.I. If fine is paid, the whole amount shall be paid as compensation to the widow and children of deceased Jangir Singh. 9. The appeal of Puran Singh and Surjan Singh is allowed. Their conviction under sec. 452, IPC is set aside and they are acquitted of that charge also. They are on bail and need not surrender.Appeal partly allowed. *******