JUDGMENT V.P. Mathur, J. - This appeal is directed against the judgment and order passed by Mr. D.N. Shukla, the then First Additional Sessions Judge of Banda on 22.9.78. He found the appellants guilty on a charge under Sec. 302 read with 34 of the Indian Penal Code and also under Section 323/34 I.P.C. and convicted them accordingly but refrained from passing any order under Section 323 read with 34 I.P.C. and limited his order of sentence to Section 302 read with 34 I.P.C. and punished the appellants with imprisonment for life. 2. During the pendency of this appeal, Ram Dutt-appellant was reported to have died. An enquiry was made and the report of the Chief Judicial Magistrate having been accepted, his appeal was directed to abate. The appeal remained only on behalf of Ram Lakhan and Mukund Lal. 3. The occurrence took place on 6.10.75 at about 4.00 p.m. in the agricultural area of village Sidhpur alias Singhpur within the area of police station Karvi of district Banda. The first information report was lodged at 6.00 p.m. the same day at a distance of three miles at police station - Karvi by Mool Chand brother of the deceased Natthu. The report was originally taken down under section 307 of the Indian Penal Code, but subsequently when Natthu died in the hospital, a report to that effect was received in the thana and the report was altered to one under Section 304 of the Indian Penal Code. 4. The prosecution story is that the informant Mool Chand was carrying out agricultural operation in the field of Natthu. Natthu was also present and grazing his cattle in the same field. Two ladies namely Smt. Umaria brother's wife of the informant Mool Chand and Km. Khimli his niece were also present near about plucking grass. It so happens that the agricultural field in which the ploughing was going on, is adjacent to another agricultural field belonging to Ram Dutt original appellant No. 1, and in between there was a Mend (Boundary). The allegations are that while ploughing was proceeding, Ram Dutt along with his two sons - Ram Lakhan and Mukund Lal both appellants armed with lathis came on the spot. Ram Dutt approached Natthu and charged him of having broken and demolished the Mend and having encroached upon his land. The allegations are that while ploughing was proceeding, Ram Dutt along with his two sons - Ram Lakhan and Mukund Lal both appellants armed with lathis came on the spot. Ram Dutt approached Natthu and charged him of having broken and demolished the Mend and having encroached upon his land. Natthu denied this allegation and said that the plot can be got measured. This did not however satisfy Ram Dutt, who called his two sons Ram Lakhan and Mukund Lal and asked them to start the beating. It is said that upon this exhortation, Ram Lakhan and Mukund Lal as well as Ram Dutt (since deceased) all armed with Lathis fell upon Natthu and gave him a thorough beating causing him a large number of injuries. When Mool Chand went to save the situation, he was also dealt lathi blows by the three persons and he also received injuries. Meanwhile on the cries of Mool Chand, Natthu and the two ladies, some persons including Surendra Nath Singh and Satya Narain Singh came on the spot and the accused appellants are said to have run away. 5. Natthu was transported to the Male-Female Hospital Karvi where Dr. Raj Narain Gupta examined him for his injuries on 6.10.1975 at 8.30 p.m. and noted his injuries in the injury report. The injured was found having received one lacerated wound 4 cms x 1 cm; x bone deep on the right side of the head 9.5 cms. above the ear with swelling around the wound in an area of 8.5 cms x 6 cms. The wound was obliquely placed, which was bleeding and X-ray was advised. He had also erasion's with swelling in an area of 21 cms. x 9 cms- on the outer aspect of the left arm extending from middle of the arm lower down to the fore arm. This was also placed obliquely (but looked almost vertically placed). It was red in colour. X-ray was advised. There was a third injury which was a lacerated wound in an area of 4.5 cms x 1.5 cm x bone deep on the front of the middle of left leg. It was vertically placed and was bleeding. Last injury was bruise with swelling 5 cms x 3 cms on the front of left leg 3 cms. above the injury No. 3. For it also X-ray was advised. General condition of the patient was pow. It was vertically placed and was bleeding. Last injury was bruise with swelling 5 cms x 3 cms on the front of left leg 3 cms. above the injury No. 3. For it also X-ray was advised. General condition of the patient was pow. Pulse was not perceptible at wrist. Pupils were constricted. Vomiting was present. There was restlessness also. 6. After the demise of Natthu in the hospital, post-mortem on his dead body was also con- ducted by the same doctor on 7.10.75 at 2.05 p.m. The post-mortem report is Ext. Ka 19. The four injuries which were found earlier and had been noted in Ext. Ka 20, have been repeated in the post-mortem examination report also with the addition that under injury No. 1, which was on the head, the underlying bone had been fractured and the internal examination revealed depressed fracture of the right parietal extending to the temporal bone. The membrances were lacerated under this injury. The brain was congested and blood clot was present on the surface of the brain -under injury No. 1. In the opinion of the doctor, this was the fatal injury and the death was due coma caused by this injury. 7. Mool Chand was also medically examined by Dr. Raj Narain Gupta on 6.10.75 at 9.05 p.m. vide injury report Ex. Ka 21. He had in all nine injuries. Injury No. 3 was an abrasion. Injury No. 5 was a lacerated wound and others were all bruises or abraded bruises. They were on all non vital parts of the body and there is nothing on the record to show that they were at all x-rayed or at any time were found to be grievous. They were all simple. 8. The prosecution examined in support of its case first informant Mool Chand as P.W. 1, Surendra Nath Singh and Satya Narayan as P.Ws 2 and 3 as eye-witnesses of the case. All others were formal witnesses. 9. An attempt was made on behalf of the defence to come forth with the story that sudden blow by lathi had hit the deceased when Ram Lakhan and Mukund Lal wielded their lathis in defence of their father Ram Dutt. All others were formal witnesses. 9. An attempt was made on behalf of the defence to come forth with the story that sudden blow by lathi had hit the deceased when Ram Lakhan and Mukund Lal wielded their lathis in defence of their father Ram Dutt. An injury report of Ram Dutt purporting to have been written out on 9.10.75 at 9.30 a.m. by one R.B. Sharam has been placed on the record and strangely enough, its genuineness has been accepted by the learned counsel for the State. There is nothing on the record to show as to where and how these injuries were examined and who is Mr. R.B. Sharma who actually examined the injuries of Ram Dutt. There was an argument that Ram Dutt was taken into custody on 7.10.1975. But there is nothing on the record to prove it. The learned Sessions Judge has placed some reliance upon a petition for bail moved on behalf of the three appellants in the court below. This document was never put to appellants when they were examined under Sec. 313 of the Code of Criminal Procedure. This document therefore, could not have been taken into consideration at all. Therefore, neither we can start with the assumption that in the bail application no mention of the injuries of Ram Dutt was made and hence he did not suffer any injury nor can we take into consideration the fact that Ram Dutt was perhaps already in police custody on 7.10.1975. The Investigating Officer has not said so and he was not cross examined on this aspect of the matter. Then again paper No. Ext. Kha-1 simply shows that Ram Dutt allegedly was having five injuries on his person, which were all abrasions of various sizes on different parts of his body and bone was on any vital part. These were all simple injuries and the law is that two things have to be proved before prosecution can be called upon to explain the injuries of the accused firstly that the injuries should not be superficial and should be serious and secondly that There should be a proof of the fact that they were caused at the time when the occurrence allegedly took place. Both these factors are missing in this case. Both these factors are missing in this case. There is no evidence in this case to show that the injuries were received by this accused when this marpit took place on 6.10.1975 at about 4.00 p.m. in the agricultural field in village Sidhpur alias Singhpur. There is again nothing on the record to show that any of the injuries was found to be more than superficial. On the contrary, they have been noted to be simple accused by friction against rough surface and lastly according to. R.B. Sharma, who has given this report, these injuries were two days old when he examined Ram Dutta at 9.30 a.m. on 9.10.75. This will not carry us back by any stretch of imagination 4 p.m. on 6.10.75. We, therefore, discard Ext. Kha-1 completely out of consideration and the defence attempt to argue that since Ram Dutt was beaten and he had suffered injuries, hence his two sons wielded their lathis in his self-defence, has to be rejected. 10. P.W. 1 Mool Chand is an eye-witness of the occurrence. He is the real brother of the deceased Natthoo. He comes with the story that Natthoo had inherited the property of his father-in-law in village Sidhpur and was living in this village for the last 12-13 years and for the last 5 or 6 years even this witness had shifted to Sidhpur to help his brother in agricultural operations. Then he gives the entire story of the occurrence as it took place. He is also an injured in this case. As a matter of fact on behalf of the defence the factum of the occurrence is neither disputed nor denied and so also the presence of the witnesses, especially Mool Chand, whose presence also stands established from the fact that he received injuries in the same transaction. What the defence has done is to give a twist to the manner in which the occurrence started, but as we have already found above, the defence has failed in its attempt. The testimony of witness Mool Chand is straight forward and during cross-examination he was not at all shaken. His statement has to be accepted as reliable. 11. The second witness is Surendra Nath P.W. 2. He also belongs to the same village Sidhpur. He has agricultural fields in the vicinity of the scene of occurrence. The testimony of witness Mool Chand is straight forward and during cross-examination he was not at all shaken. His statement has to be accepted as reliable. 11. The second witness is Surendra Nath P.W. 2. He also belongs to the same village Sidhpur. He has agricultural fields in the vicinity of the scene of occurrence. He gives out the prosecution version of the story and this furnishes a complete support to the testimony of P.W. 1 Mool Chand. It has been elicited from him that Satya Narain P.W. 3 is related to him as his nephew. That will, however, not make any difference. So far as the deceased and his brother Mool Chand are concerned, neither Surendra Nath nor Satya Narain have any connection with them. Both of them are independent witnesses and inspite of cross-examination made, they have stood their ground well. We are, therefore, of the view that the testimonies of these two witnesses are also reliable. 12. The learned counsel for the appellants has candidly conceded that the evidence which has been adduced, namely the statements of Surendra Nath Singh and Satya Narain, as well as the statement of Mool Chand, who is an injured; are completely reliable and cannot be discarded. That being so, we are in complete agreement with the learned Sessions Judge that on a very trivial matter regarding suspicion about change in the boundary lines of two fields and the alleged encroachment into the field of Ram Dutt by the deceased Natthu, this fight took place on 6.10.75 at 4.00 p.m. and the three appellants, namely Ram Dutt (since deceased) and his two sons Ram Lakhan and Mukund Lal who were all armed with lathis, started belabouring Natthu. There is nothing on the record that Natthu and his brother Mool Chand or the two ladies who were present near about, were also at all armed. This being so, the guilt of the accused-appellants is undoubtedly established. It is established under Section 323 read with Sec. 34 of the Indian Penal Code, so far as injuries to Mool Chand are concerned. The learned Sessions Judge has also come to the same conclusion. But strangely enough, he has not given any sentence to the appellants on that charge. It is established under Section 323 read with Sec. 34 of the Indian Penal Code, so far as injuries to Mool Chand are concerned. The learned Sessions Judge has also come to the same conclusion. But strangely enough, he has not given any sentence to the appellants on that charge. Under these circumstances, it will not be possible for us to sentence the two appellants under Section 323 read with Sec. 34 of the Indian Penal Code separately. 13. The case, so far as Natthu is concerned, cannot, however, be covered under Section 302 of the Indian Penal Code. The occurrence took place just on the spur of the moment. Of course, the three appellants had come armed with lathis. It is a common thing in villages when people move out in normal course with lathis. It appears that Ram Dutt got infuriated only when Natthu did not accept his charge of having encroached upon his land and challenged him to get measurements made and the result was that he exhorted his sons and all the three fell upon Natthu with lathis and gave him a beating. Besides injury No. 1, all other injuries were on non- vital parts of the body of Natthu and they were found to be simple. Thus the only injury No. 1 which ultimately proved to be grievous, was the reason for the death of Natthu. 14. No second blow was given on the head. We also do not know as to who was the author of this fatal blow. The intention of the appellants was not to commit the murder. This fact is also borne out from the words which are attributed to one of them at the time of exhortation. It appears that they simply wanted to punish Natthu but not to kill him. But when a determined lathi blow is given on the head of a man with a sufficient force, as a result of which the underlying bones are fractured, the knowledge that the blow could have caused death can always be ascribed to the author and also to those who had accompanied him for the purpose of assault. But when a determined lathi blow is given on the head of a man with a sufficient force, as a result of which the underlying bones are fractured, the knowledge that the blow could have caused death can always be ascribed to the author and also to those who had accompanied him for the purpose of assault. In our opinion the case shall be covered by Part II of Section 304 of the Indian Penal Code and, therefore, the convictions of the appellants Ram Lakhan and Mukund Lal will have to be returned, under Sec. 304 Part II read with Sec. 34 of the Indian Penal Code. 15. Coming to the question of sentence, notice should be taken of the fact that Ram Dutt has already died. Ram Lakhan and. Mukund Lal are his sons and they were young boys at the time when the occurrence took place. In our opinion, five years rigorous imprisonment will serve the purpose of law. 16. The appeal stands disposed of in this manner. 17. The conviction of the appellants is altered from Section 302/34 I.P.C. to Section 340 Part II read with Sec. 34 I.P.C. Appellants Ram Lakhan and Mukund Lal both are convicted under Section 304 Part II read with Section 34 of the Indian Penal Code and the sentence of imprisonment for life is reduced to a sentence of five years rigorous imprisonment. Since Ram Dutt is already dead and his appeal has abated, no further order need be passed regarding him. 18. The two appellants Ram Lakhan and Mukund Lal are on bail. Their bail bonds shall be cancelled. They shall surrender and will be taken into custody to serve out their sentence as passed by this Court now. 19. A copy of this judgment shall be sent forthwith to the court below so that necessary action may be taken.