JUDGMENT Palok Basu, J. 1. This appeal has been filed by ram autar and sheo shanker against their conviction and sentence as recorded by viii additional district and sessions judge, allahabad on 25-11-1978 in sessions trial no. 84 of 1977. 2. Sheo shanker appellant has been found guilty of the charge under section 302 ipc and section 323 ipc for causing the death of sheo kumar and causing simple injuries to lalji, pw 2. Ram autar appellant has been convicted under section 302 read with section 34 ipc and section 323 read with section 34 ipc. Both the appellants have been awarded imprisonment for life and four months' ri respectively under the two counts. The charge against the appellants was that on 14-12-1976 at about 4 p. M. When sheo kumar deceased was getting a fallen 'mahua' tree cut, the two appellants reached there, asked him not to do so and wanted their shares at which the deceased refused and an altercation ensued whereupon sheo shanker appellant gave one lathi blow landing on the head of sheo kumar and when lalji pw 2 attempted to save sheo kumar, the appellant sheo shanker gave one lathi butt blow while ram autar appellant had caught hold of lalji. At the hue and cry, ram newaj pw 3 and ragghu kurmi and others arrived at the spot. Sheo kumar had fallen down as a result of lathi injury who was escorted to his house but succumbed to his injuries near about mid night. 3. A first information report (ext ka-2) was lodged on 15-12-1976 at 8.15 a m. Vide a chik report (ext. Ka 3). Post mortem examination on the dead body of sheo kumar was done on 16-12-1976 at 2 p. M. By dr. A. B. Das gupta, pw 1 who found the following ante mortem injuries on the person of the deceased :- 1. "contused wound 8 cm x 1 cm x skull bone deep on the head longitudinally 9 cm above the bridge of the nose and 13 cm above the left ear. With swelling 12 cm x 8 cm in and around of communicated depressed fracture of the temporal bone with linear fracture of the both parietal and temporal bone covered with blood clot 13 cm x 10 cm x 1-1/2 cm (in the centre), under the injury no. 1". With swelling 12 cm x 8 cm in and around of communicated depressed fracture of the temporal bone with linear fracture of the both parietal and temporal bone covered with blood clot 13 cm x 10 cm x 1-1/2 cm (in the centre), under the injury no. 1". On internal examination a rupture was found and clotted blood over the brain was also noticed. Doctor opined in the said report that 'death is due to coma owing to compression of the brain as a result of injury no. 1 on the head.' 4. Raja ram, sub-inspector, who has been examined as pw 7, investigated the case and filed charge-sheet (exf. Ka-14). After due enquiry the appellants were committed to the court of sessions whereafter the aforesaid conviction and sentence, therefore, was passed, hence this appeal. In order to prove its case the prosecution has examined two eye witnesses- i. E. Lalji informant pw 2 and ram newaj-pw 3. The other witnesses examined are formal in nature who are pw 1 dr. A. B. Das gupta who conducted the post mortem examination, pw 5 dr. L. L. Patel had examined the injuries of lalji, head constable raj narain dubey-pw 4 had registered the case at the police station and gulab singh pw 6 is a witness of the recovery of blood from the spot. 5. During the trial the accused denied the participation in the incident and attributed false implication due to enmity. They put a counter version about an illicit relationship between sheo kumar's wife and lalji, informant, and suggested that the deceased was done away with by the informant himself and a false case had been registered against the appellants. 6. Before coming to the discussion about the evidence and the merits, it may be relevant to mention here that the parties in this case are closely related to each other. Ram newaz pw 3 is a collateral of two brothers-jai ram and ram autar-appellant no. 1. Jai ram had two sons, lalji informant and sheo kumar (deceased). Ram autar (appellant) had a son- sheo shanker who is appellant no. 2. Therefore, it is more than apparent that just as there is no reason for the prosecution witnesses to speak falsely against the appellants, there may not be any reason on the part of the appellants to intentionally commit the murder of their own brother. Ram autar (appellant) had a son- sheo shanker who is appellant no. 2. Therefore, it is more than apparent that just as there is no reason for the prosecution witnesses to speak falsely against the appellants, there may not be any reason on the part of the appellants to intentionally commit the murder of their own brother. This observation appears necessary for the reason that at no stage during the trial has any evidence been led regarding any pre-existing enmity between the two sets of the collaterals. From the examination of the material produced during trial, it is further clear that even on the day of the incident no body had anticipated 'maarpeet', assault or trouble. This takes us to the examination of the merits of case. We have heard sri g. S. Chaturvedi, learned counsel for the appellants and sri p. S. Adhikari", learned counsel for the state and have scrutinised the record. 7. Pw 2 lalji was medically examined by dr. L. L. Patel, pw 5 on 15-12-1976 at 1.15 pm and had found the following injuries :- 1. Contusion with painful swelling 1, 1-1/2" x 1" over the left side of the nose below the right eye. Tenderness present. 2. Abrasion 1/2" x 1/4" over the back on middle side 7" above and medial to right anterior superior iliac spine. 3. Swelling all over the right thumb 3" x 1". Tenderness present. In the opinion of the doctor these injuries could have been sustained by him around 4 pm on 14--12- 1976 and may have been caused due to lathi blows and falling down. Nothing has been brought out in the cross-examination of this doctor to pursuade us to believe that the injuries of lalji were not genuine or in any way manufactured or created. Therefore, we have also no reason to doubt that lalji must have received those injuries at the incident which he alleges to have happened at 4 pm on 14-12-1976. The fact that he lodged the first information report at 8.15 am and the police station was nearly rive miles away from the place of occurrence also does not smack of any foul play or delay. It is in the statement of pw 2 lalj that after his brother sheo kumar was assaulted, he was taken to the residence where indigenous treatment was extended to him. It is in the statement of pw 2 lalj that after his brother sheo kumar was assaulted, he was taken to the residence where indigenous treatment was extended to him. It is true that these persons belong to an interior part of the district where not much education about rushing victims to hospital is found or expected. It was natural therefore, on his part to treat the brother with all sincerity at his own residence. The death having occurred some where in the mid night, the lodging of the first information report at 8.15 am is quite in time. Therefore, the statement of lalji pw 2 is fully corroborated by his injuries and the contents of the first information report that was lodged by him, we do not have any reason to disbelieve either the presence of lalji or his having suffered the injuries or his having lodged the first information report. 8. Pw 3 ram newaj was also a very natural witness. He happens to be the real uncle of the informant and similarly is closely related to the appellants also, he had no reason whatsoever to falsely implicate the appellants. The trial judge has placed reliance on the testimony of ram newaj and we do not find any infirmity in the deposition disputed by him. Therefore, it is fully proved that the appellants had participated in the assault of sheo kumar (deceased) and lalji pw 2. Sri chaturvedi then rightly brought to the notice of the court that at no point of time appellant ram autar committed any such overt act so as to make him liable under section 302 ipc with the aid of section 34 ipc. He rightly argued that the only allegation of inciting attributed to ram autar was maro salon ko which is equal to 'beat the buggers'. In the evidence this has been reiterated by the two eye witnesses. The catching hold by ram autar appellant as alleged by the prosecution witnesses when sheo shanker gave a blow to lalji, cannot also indicate common intention on part of ram autar for the individual act of having already given a blow upon sheo kumar, deceased. Therefore, it cannot be said that ram autar shared the intention of the assault perpetrated by the single lathi blow wielded by sheo shanker appellant. Therefore, it cannot be said that ram autar shared the intention of the assault perpetrated by the single lathi blow wielded by sheo shanker appellant. We accept the argument on the facts and circumstances of the case that section 34 ipc will not apply and, therefore, ram autar is not guilty under section 302/34 ipc. He has to be acquitted thereunder. At the same time it must be held that he did share the common intention with sheo shanker in giving simple injuries to lalji and, therefore, his conviction under section 323/34 ipc does not call for any interference. 9. Learned counsel for the appellants then vehemently argued that even if the entire prosecution case is taken to be true, the solitary lathi blow on the head could and should not be interpreted to indicate any intention on the part of sheo shanker appellant to cause the death of sheo kumar deceased and also that he cannot be attributed even the knowledge of causing of such injuries as was likely to result in the death of the deceased. In this connection reliance was placed on the decision of honourable supreme court in the case of state of orissa v. Bhagban barik, air 1987 supreme court page 1255. The relevant paragraph reads as under :- "although it cannot be said from the circumstances appearing that the respondent had any intention to kill the deceased, he must in the circumstances, be attributed with knowledge when he struck the deceased on the head with a lathi that it was likely to cause his death. The respondent was, therefore, guilty of culpable homicide not amounting to murder under section 304 (ii), ipc." 10. Though sri adhikari wanted to argue that the blow on the deceased in the aforasaid case of bhagban barik (supra) was given in the night under some misconception and, therefore, that case should be distinguished as the honourable supreme court was considering the scope of section 79 ipc vis-a-vis the defence of the accused in that case. We have given our anxious consideration to the said argument and find no force at all. It has been specifically found by the trial court in the reported case that the blow was given by the accused therein after having seen the victim coming forward. We have given our anxious consideration to the said argument and find no force at all. It has been specifically found by the trial court in the reported case that the blow was given by the accused therein after having seen the victim coming forward. It is under those circumstances that the honourable supreme court held that section 304 (i) or section 302 ipc was not to apply and upheld the findings of the sessions judge that only section 304 (ii) ipc was attracted. In the present case the injury sustained by the deceased is only one on the head. There was an altercation going on, no body had planned the attack ; there was no pre-meditation. The occurrence happened suddenly due to the altercation and verbal dual. The inciting maro (or give beating) does not indicate an incitement for committing the murder. In this view of the matter the aforesaid ruling of the supreme court is attracted to the facts of the present case and even without it we have no hesitation in saying that the appellant sheo shanker can be held liable only under section 304. (ii) ipc. Consequently, he has to be acquitted under section 302 ipc. It was argued that three years' r. I. Thereunder will be adequate sentence as was imposed in aforesaid reported decision. As regards the charge of sheo shanker appellant's causing simple injuries to lalji pw 2, we find that the evidence produced by the prosecution fully establishes the same. Consequently, his conviction under section 323 ipc does not require any interference. Coming to the question of sentence, learned counsel for the appellants argued that looking at the minimal role attributed to ram autar, the period of imprisonment already undergone by him will meet the ends of justice in so far as his sentence under section 323 read with section 34 ipc is concerned. From the perusal of the record, it appears that nearly 15 days confinement has already been undergone by ram autar. Consequently, we do not find any reason to ask him to undergo any more sentence now that fourteen good years have elapsed since the incident. 11. So far as sheo shanker appellant's conviction under section 323 ipc is concerned, we do not find any justification to interfere with the sentence of four months' r. I. Thereunder as imposed upon him by the trial judge which is hereby upheld. 11. So far as sheo shanker appellant's conviction under section 323 ipc is concerned, we do not find any justification to interfere with the sentence of four months' r. I. Thereunder as imposed upon him by the trial judge which is hereby upheld. As regards his sentence under section 304 (ii) ipc we award three years' r. I. Thereunder. 12. Consequently, this appeal is partly allowed. The conviction of appellant ram autar under section 302/34 ipc and his sentence for life imprisonment thereunder are set aside. His conviction under section 323/34 ipc is maintained but the sentence is reduced to the period already under gone. He is on bail. He need not surrender. His bail bonds are discharged. The conviction of sheo shanker appellant under section 302 ipc and sentence of life imprisonment thereunder are set aside. Instead he is convicted under section 304 (ii) ipc and sentenced to three years' r. I. Thereunder. His conviction under section 323 ipc and sentence for four months' r. I. Thereunder are upheld. Both the sentences would run concurrently. He is on bail. He will be taken into custody to serve out the sentence.