JUDGMENT 1. 1. The Additional Sessions Judge No. 2 Bharatpur has convicted the appellants before me for the offences under sections 307/34 IPC, 379 IPC and 323 IPC, and sentenced them as under : Under Section 307/34 IPC Four years RI and a fine of Rs. 100/- each. In default of payment of fine to undergo further imprisonment for three months RI. Under Section 379 IPC Six months RI and a fine of Rs. 100 each. In default of payment of fine to further undergo 11/2 months R.I. Under Section 323 IPC Three months RI and a fine of Rs. 100/-each. In default of payment of fine to further undergo one month R.I. 2. The appellant Lajja was further convicted under section 325 IPC and the appellant Polla Ram was convicted under section 325/34 IPC and each of them was sentenced to undergo two years RI and a fine of Rs. 100/-. In default of payment of fine to further undergo 3 months RI. 3. The appellant, Polla Ram. was further convicted under sections 451 and 427 IPC and sentenced to undergo six months RI and a fine of Rs. 100/- under each count. In default of payment of fine to undergo further rigorous imprisonment for 11/2 months. 4. All the substantive sentences have been ordered to run concurrently. 5. Against this on 7th April, 1980, both these appellants have preferred this appeal. 6. Few facts of the case may be mentioned before coming to the contentions which have been urged on behalf of the appellants. The incident out of which this case arises, occurred on 28-10-1978 at village Singhada. The first information report of the incident was lodged by Mst. Pushpa. The complainant party had constructed a Pator in their house and this was broken by the two appellants. When Yadram, Dojiram and Languriya were proceeding to Bayana to lodge a report about this occurrence, then both the appellants went after them and accosted them near the river and gave beating to all the three with lathies and caused simple and grievous injuries. When the complainant Pushpa reached this place after hearing the cries she was also beaten and deprived of certain ornaments. As the male members of the family were all injured and unconscious, Pushpa went to the Police Station to lodge the report. 7. When the complainant Pushpa reached this place after hearing the cries she was also beaten and deprived of certain ornaments. As the male members of the family were all injured and unconscious, Pushpa went to the Police Station to lodge the report. 7. The injuries of the four injured persons may be looked into as these would be relevant for finding out as to what offences can be said to be made out in the case.The injuries are as under Yad Ram: 1. Lacerated wound , clotted blood & swelling On the scalp right & side 2" above hair margin-Simple Blunt. 2. Lacerated wound , clotted blood & swelling. On right forehead above eye brow - Simple Blunt. 3. Three bright Red Bruises-diffused swelling. 3"x 1" 31/4 "x 11/4 " 2"x 11/4 " On the back of upper hair of the right fore arm - Opinion after X-Ray blunt. 4. Bright red bruise , diffused swelling. 21/2"x 11/2" On the back of the right wrist - Opinion after X-Ray blunt. 5. Bright red bruise , and swelling 2" x 1" On the back of the right palm - after X-Ray blunt. 6. Bright Red Bruise Abrasion. 1-l/2"x 11/2" 1/4"x 1/4" On the palmer surface of the Rt. hand at the root of the ring finger-Simple-Blunt 7. Bright Red Bruise Swelling. 2"x 11/2" On the back and lower part of the right upper arm near elbow-Simple-Blunt 8. Lacerated wound , Clotted blood , diffused swelling. On the front and middle of the right leg-Opinion after X-ray- Blunt 9. Lacerated wound Clotted blood and diffused swelling. On the front surface of the Right leg 2" below the 8th injury--Opinion after X-ray- Blunt 10. Lacerated wound , clotted blood , diffused swellingmuscle fibre. On the front surface and lower part of the right leg - Opinion after X-ray-Blunt. 11. Lacerated wound, profuse bleeding, diffused swelling. 1"x1/2"x1/2" On the lateral mallellu of the right leg. 12. Bright Red Bruise , diffused swelling 3"x l" On the dorsal Opinion surface & upper part of the right foot-Opinion after X-ray-Blunt. 13. Bright Red Bruise , diffused swelling 21/2" x l" On the dorsal surface and lower part of the right foot Opinion after X-ray-Blunt. 14. Lacerated wound , clotted blood. l"x l/2"x l/4" On the front surface and upper part of the left leg Simple-Blunt 15. Lacerated wound , clotted blood & swelling. 13. Bright Red Bruise , diffused swelling 21/2" x l" On the dorsal surface and lower part of the right foot Opinion after X-ray-Blunt. 14. Lacerated wound , clotted blood. l"x l/2"x l/4" On the front surface and upper part of the left leg Simple-Blunt 15. Lacerated wound , clotted blood & swelling. On the front surface middle of the left leg 16. Two lacerated wounds clotted blood On the front surface and lower part of the left leg. 17. Bright Red Bruise diffused swelling 2 1/4"x 1 1/4" On the outer surface of the dorsal part of the left leg 18. Three Bright Red Bruises , diffused swelling and lacerated wounds 3"x l" 21/2 "x l" 3"x 1" ⅓ x ⅓ "x ⅕ " On the front and outer surface and at middle 2nd part of the left upper arm 19. Lacerated wound , swelling On the back and lower part of the left upper arm 20. Lacerated wound , diffused swelling 1"x1/2"x 1/4" On the ulna side and middle of he left before arm 21. Bright Red Bruise , Swelling 3"x 1" On the back and lower part of the left before arm 22. Bright Red Bruise Three Abrasion diffused swelling 2 1/4"x 1"1/2" ⅕"x 1/10" 1"x 1/10" On the back of the left hand thumb side Dojiram : 1. Lacerated wound, verticle swelling , clotted blood 1 1/4"x l/4"x bone deep On the scalp of left parietal Eminence 2. Lacerated wound clotted blood & swelling verticle 11/2"x l/4 bone deep On the (illegible) side near (illegible Opinion after X-ray-Blunt. 3. Lacerated wound , clotted blood, swelling 11/2"x 1/4"x ⅓" On the middle & ulnar side of left for arm-Opinion after X-ray-Blunt 4. Bright Red Bruise Abrasion, diffused swelling 21/2"x 1" 1/4"x 1/4"x1/10" on the back and upper part of the left fore arm- 5. Lacerated wound, clotted blood, sweling ⅓”x ⅓”x ⅕' On the back and ulnar side at left wrist- 6. Two lacerated wounds, clotted blood diffused swelling ⅔"x l/4"x1/4"1/2"1/2"x 1/4" On the outer surface and middle of the right upper arm in one verticle line 1-1/2" distance between the wounds-Opinion after X-ray-Blunt 7. Bright Red Bruise diffused swelling 3"x 11/2" On the back & upper part of the right fore arm-Opinion after X-ray-Blunt. 8. Two lacerated wounds, clotted blood diffused swelling ⅔"x l/4"x1/4"1/2"1/2"x 1/4" On the outer surface and middle of the right upper arm in one verticle line 1-1/2" distance between the wounds-Opinion after X-ray-Blunt 7. Bright Red Bruise diffused swelling 3"x 11/2" On the back & upper part of the right fore arm-Opinion after X-ray-Blunt. 8. Bright Red Bruise diffuse swelling 2"x 11/4" On the back & ulnar side and lower part of the right fore-arm-Opinion after X-ray Blunt. 9. Bright Red Bruise Abrasion swelling 1/4"x 1/4"x l/10" 1/4"x 3/4" On the back and near the nail bed of the right thumb-Simple Blunt. 10. Lacerated wound clotted blood On the middle and outer surface of the right thigh-Simple-Blunt. 11. Bright red Bruise 3"x 1" On the front surface and lower part of the left thigh-Simple-Blunt 12. Lacerated wound, bleeding 4"x l1/2" On the front surface and middle of the right leg Simple-Blunt. 13. Bright Red Bruise 4"x l1/2" On the middle & outer surface of the left thigh-Simple Blunt. 14. Two Bright Red Bruises, diffused swelling 4"x l" 3"x l" One the outer surface and back of the left leg upper part-Opinion after X-ray-Blunt. 15. There Bright Red Bruises, diffused 4"x l" 3"x l " 4"x l" On the scapular region overlapping each other-Simple -Blunt. 16. Abrasion 1/4"x l/4"x 1/10" On the left scapular region at the top border-Simple-Blunt. 17. Oblique Bright Red Bruise, Swelling diffused 4"x 11/2" On the back left side below-scapula near mid-axillary line Opinion after X-ray-Blunt. 18. Three Bright Red Bruises 5"x l1/2" 6"x1/2" On the back left, Lumber region overlapping each other-Simple-Blunt. 19. Two bright Red Bruises 6"x 11/2" 3"x l" On the back at right lumber region-Simple Blunt. 20. Two Bright Red Bruises, diffused swelling 5"x l1/2"4"x1/2" On the right scapular region overlapping each other 21. Bright Red Bruise, diffused swelling 4"x 11/2" On the back right side below scapula near axillary line-Opinion after X-ray-Blunt. Pushpa : 1. Bright Red Bruise, Abrasion 3"x 3/4" 11/4"x 1/10" On the back of the neck right side of the root Simple-Blunt. 2. Abrasion, clotted ⅕"x ⅕"x l/l0" On the back of the lubule of the left ear-Simple-Blunt. 3. Two abrasions, clotted blood. 1/4"x ⅕"x l/10" On the front surface of left side and middle of neck-Simple Blunt. 4. Pushpa : 1. Bright Red Bruise, Abrasion 3"x 3/4" 11/4"x 1/10" On the back of the neck right side of the root Simple-Blunt. 2. Abrasion, clotted ⅕"x ⅕"x l/l0" On the back of the lubule of the left ear-Simple-Blunt. 3. Two abrasions, clotted blood. 1/4"x ⅕"x l/10" On the front surface of left side and middle of neck-Simple Blunt. 4. Bright Red Bruise 21/2 x 1" On the front surface of the pinna & left ear and at the Mastoid process left.-Simple-Blunt. Languria : 1. Bright Red Bruise Swelling 2"x 11/2" On the scalp of left parietal region-Simple Blunt. , 2. Bright Red Bruise swelling 3"x 11/4" On the front and outer surface of the left thigh lower part.-Simple-Blunt 3. Lacarated wound diffused swelling 1"x1/2"x l/4" On the front and lower part of the right leg-Opinion after X ray-Blunt. 4. Bright Red Bruise. 4"x l" On the right hip joint-Simple-Blunt. 5. Two Bright Red Bruises, diffused swelling 3"x 1" 3"x l1/4" On the front and outer surface and at middle of the right upper arm-Opinion after Xray -Blunt. 6. Bright Red Bruise 2"x 1" On the back of the neck right side of root Simple Blunt. 8. The learned Sessions Judge after going through the evidence recorded in the case arrived at the conclusion that accused Polla Ram took part in the demolition of the Pator. But subsequently when the occurrence took place at the river side both the appellants took part in giving injuries to the injured persons. Looking to the injuries of Yad Ram and Doji Ram, it was held that the accused had the intention of causing the death of these persons and that they were guilty for the under section 307 IPC and for the injuries on other persons offences under sections 325 and 327 IPC have been found to be made out. 9. The learned counsel for the appellants has first of all contended that the incident took police because the complainant party constructed a 'Paton' adjacent to the house of the accused. It has also been contended that the place of occurrence was the site of the 'Pator' and not the river side. The role of the different accused has to be adjudged and on the basis of the facts and circumstances it has to be decided as to what can be said to have been committed by the appellants. It has also been contended that the place of occurrence was the site of the 'Pator' and not the river side. The role of the different accused has to be adjudged and on the basis of the facts and circumstances it has to be decided as to what can be said to have been committed by the appellants. Special effort has been made to show that the act does not fall under section 307 IPC, but only under section 325 IPC. 10. PW 10 Pushpa is the witness about the demolition of the 'Pator'. She is the complainant herself and the other witnesses are PW 13 Bhoori Singh and PW 14 Motilal. PW 13 Bhoori Singh has stated that ⅔rd of the Pator had been constructed and ⅓rd remained, when appellant Polla came there and asked them not to construct the 'Pator' because there was a stay on this construction. Upon this Yadaram said that there was no stay and the persons who had been entrusted with the work of Pator should continue with the work. According to this witness Bhoori Singh who was constructing the 'Pator' Polla alone had come at that time and both sides had thrown stones at each other. He has been declared hostile and in cross examination by the accused he has stated that the Pator which was being constructed was adjacent to the Pator of the accused. PW 14 Moti Lal was also it labourer working on the 'Pator' and according to him, Polla accused came there and asked them not to construct the 'Pator' as some litigation was pending. 11. The stay order which has been referred to by these witnesses has not been placed on record. But at least this much can be said that on the basis of statements of these witnesses that there was some dispute about the construction of the 'Pator'. The permission for the construction is Ex. P/6. accompanied by site plan Ex. P/7 and this shows that the 'Pator' has a gait' towards the south and thereafter there is the house of the accused. If the complainant party was erecting the part without leaving a lane then it was only natural that the accused persons would feel aggrieved. 12. The permission for the construction is Ex. P/6. accompanied by site plan Ex. P/7 and this shows that the 'Pator' has a gait' towards the south and thereafter there is the house of the accused. If the complainant party was erecting the part without leaving a lane then it was only natural that the accused persons would feel aggrieved. 12. From this evidence it can be said that the dispute between the parties was about the construction and subsequently demolition of the 'Pator' and besides this there was no enmity between them. The subsequent incident which took place at the river side was also a consequence of the 'Pator' dispute. According to PW 1 Yadram and PW 2 Languriya & PW 1 (sic) Dojiram, when they were going to lodge a report and had crossed the river two accused came from behind and started inflicting lathi blows. Both of them gave severe beating and caused several injuries. PW 10 Pushpa was not with the other injured persons but she followed them when she was informed that the accused persons had come to give beating to Yadram etc. When she reached there the accused told her that three bodies were lying and her ornaments may be removed as they would be useful to them in the case. Thereafter she was deprived of her ear-ring and chain. On the basis of the statements of these witnesses and also site inspection report according to which marks of struggle were found and blood drops were found and the injured persons were lying, it can be said that the beating had taken place at this site and the whole incident was not complete at the site of the 'Pator'. The injuries to these persons were caused by lathies. The injuries which were caused have been seen above. 13. What can be said to be made out on the basis of the injuries received by the injured persons is to be looked into. While considering this the circumstance about the origin of the quarrel on account of the construction of the 'Pator' is also to be looked into. However first I shall look at the injuries of the injured persons. PW 15 Dr. Purshotam Lal is the doctor who examined the injured persons. Yadram had as many as 22 injuries, all by blunt weapons. Only one injury namely, the fracture of the ulna was grievous. However first I shall look at the injuries of the injured persons. PW 15 Dr. Purshotam Lal is the doctor who examined the injured persons. Yadram had as many as 22 injuries, all by blunt weapons. Only one injury namely, the fracture of the ulna was grievous. For this injury it has been specifically said that this injury was not sufficient to cause death. The second injured person is Dojiram. He had as many as 21 injuries, all by blunt weapons. He received six grievous injuries and they were fracture of the left fibula, fracture of the radius of the right hand, fracture of the three ribs on the left side and two ribs on the right side of the chest and the fracture of the skull. He did not give any opinion about the possibilities of the injuries resulting in death. But in his statement he said that there was probability that death could have resulted on account of the injuries. It is these injuries and this opinion of the doctor on the basis of which the said to have been committed by the accused has to be determined. The injuries of Pushpa and Languriya are simple in nature except one of Languriya which may not be said to be very material. As many as 8 fractures ware found on the body of Dojiram. The investigating officer referred the matter for opinion of the doctor and the doctor reported that the injuries of Dojirarn were likely may or may not) to cause his death. This again suggests that the doctor was root confident as to whether the injuries were in the ordinary course of nature sufficient to cause death or not. Even in his statement he has said that there was a possibility that the injuries of Dojiram could have resulted in his death. The opinion that the injuries were sufficient in the ordinary course of nature to cause death has not been formed by this doctor. The learned counsel for the appellants as placed reliance on Bhiyanram and ors. v. State of Rajasthan 1980 Cr.L.R. (Raj.) 688 and the State of Rajasthan v. Nathudan and ors. 1979 Cr.L.R. (Raj Suppl.) 512 . In the latter case the injured persons received several injuries, out of which there were 8 fractures, but out of these seven fractures were on the limbs and there was one fracture at tempo-parietal region. v. State of Rajasthan 1980 Cr.L.R. (Raj.) 688 and the State of Rajasthan v. Nathudan and ors. 1979 Cr.L.R. (Raj Suppl.) 512 . In the latter case the injured persons received several injuries, out of which there were 8 fractures, but out of these seven fractures were on the limbs and there was one fracture at tempo-parietal region. The doctor did not state categorically that the injuries were sufficient in the ordinary course of nature to cause death. His opinion was that if immediate medical aid would not have been provided, there was possibility of the injured succumbing to injuries. Considering all these circumstances, it was held that the under section 307 IPC was not proved and the accused could be guilty of the under section 325 IPC only. The other case was of the one blow on the head and other blows were inflicted on non-vital parts. The doctor had not stated that the injury was sufficient in the ordinary course of nature to cause death but stated that the injury was dangerous to life. It could not be found as to who inflicted this injury. As the accused were under 21 years of age at the time of the incident they were released on probation. 14. The learned counsel for the complainant has placed reliance on Banwari and ors v. State of Rajasthan 1979 Cr. L. R. (Raj.) 88 . In this case the accused were armed with deadly weapons and gave beating in a savage manner to an unarmed victim, even after he had fallen down and this fact was viewed in the background of the previous enimosity between the parties and the inference drawn was that the injuries were intentionally inflicted and the appellant knew that the injuries were likely to cause death in the ordinary course of nature. Considering the circumstances the conviction under section 325 IPC read with section 149 IPC was converted into section 307 IPC read with section 149 IPC. 15. In the present case it has been seen that the incident out of which this case arises arose eleven years ago. The parties are neighbours and that there was no previous enmity between them. Considering the circumstances the conviction under section 325 IPC read with section 149 IPC was converted into section 307 IPC read with section 149 IPC. 15. In the present case it has been seen that the incident out of which this case arises arose eleven years ago. The parties are neighbours and that there was no previous enmity between them. There was dispute between them about the erection of the 'Pator' and the whole incident started when the 'Pator' was erected adjacent to the house of the accused, which according to them was not in terms of the permission granted to the complainant party. The weapons used by the accused were lathies and except for one injury on the head, the others are on non-vital parts. For under section 307 IPC, it has to be shown that the accused did an act with such intention or knowledge and under such circumstances that, he by that act could have caused death. The circumstances have been seen above which do not show previous enmity as the cause of the incident and when it is said that the accused had gone in advance to prevent the complainant party from going to the Police Station and they had armed themselves only with lathis and not with other deadly weapons the intention and knowledge to commit murder can be inferred only if it could be said that the injuries of the injured Dojiram were sufficient in the ordinary course of nature to cause death. This opinion of the doctor is also missing, In such circumstances it can be said that the of the accused will fall under section 325 IPC and not under section 307 IPC. Hence it can be said that the appellant No. I Lajja is guilty of s under section 325 ]PC read with section 34 IPC and section 323, 323/34 and section 379 IPC. Accused appellant Polla Ram is guilty for the s under sections 451, 427, 325, 325;34 and 323 and 323/34 IPC. 16. Coming to the question of sentence it has been contended that this is the first of the appellants and the incident started when the complainant party was erecting a 'Patol' in lane adjacent to the house of the accused. Accused appellant Polla Ram is guilty for the s under sections 451, 427, 325, 325;34 and 323 and 323/34 IPC. 16. Coming to the question of sentence it has been contended that this is the first of the appellants and the incident started when the complainant party was erecting a 'Patol' in lane adjacent to the house of the accused. According to the learned counsel for the appellants the whole incident began as a result of the illegal act of the complainant hence in the matter of sentence a lenient view should be taken. Moreover 11 years have passed after the incident and the parties are neighbours living peacefully together all these years. The learned counsel for the complainant contended that several cases are pending against accused Polla Ram and he is a bad character. However the details of the same have not been furnished and they were not before the court of Sessions when the case was decided. Considering these circumstances it can be said that ends of justice shall be met if the appellants are released on probation of good conduct and compensation is allowed to the complainant. 17. The appellants are released on probation and they shall enter into bonds in the sum of Rs. 5.000/- each with one surety in the like amount to appear and receive sentence when called upon to do so during the period of two years and in the mean time they shall keep peace and be of good behaviour. This shall be to the satisfaction of the Additional Sessions Judge No. 2 Babaratpur. The appellants shall further pay compensation of Rs. 2,000/- each to the complainant Pushpa. This amount shall be paid within a period of two months from today. In case the amount is not paid, the Sessions Judge shall call the appellants and impose the suitable punishments for the offences found to be proved against them. 18. Accordingly this appeal is partially accepted. The conviction under section 307 and 307,34 IPC is set aside and converted into under section 325, 325/34 IPC. The conviction of other offences is maintained. The sentence is altered as stated above.Appeal partly accepted. *******