KANTA BHATNAGAR, J.—Murder of Barkat Khan in the evening at about 6.00 P.M. on August 10,1983 led to the trial of appellants Muse Khan and Muzaffor @ Mooje Khan by the learned Sessions Judge, Balotra and their conviction under section 302 I.P.C. and sentence of imprisonment for life. 2. The prosecution case is that deceased Barkhat Khan was grazing his cow and two bullocks in the field of Gangaram and his wife, who had gone there with food for him in the afternoon, was sitting nearby. The two appellants went to the place where Barkat Khan was and gave him beating with lathies. Shakura (P.W. 11) wife of the deceased raised the cry of "MERE PATI KO MARTA USKO CHHUDAO CHHUDAO". Bhike Khan (P.W. 1) brother of the deceased who had gone to fetch his daughter who had gone for grazing the she goats was at that time on the road. Bhike Khan rushed to the site and saw Shakura wife of Barkat Khan. On proceeding a little ahead he saw Muse Khan and Muzaffor giving a beating to Barkat Khan with lathies. Barkat Khan was lying on the ground. He went running near Barkat Khan and asked the appellants as to why they were giving a beating. The appellants even after that gave two or three lathi blows to Barkat Khan and then ran away from there. Barkat Khan had sustained injuries on head, back and legs and was bleeding from the injuries. Bhike Khan (P.W.I) went towards the village and brought Chatar Dan(P.W.5) and Khamisa (P.W.4), left them near Barkat Khan and himself went to his house and brought a cot. Bhike Khan (P.W. 1), Khamias (P.W.4) and Chatar Dan (P.W.5) brought Barkat Khan on the road. As no conveyance was available for taking the injured to the hospital, Bhike Khan leaving the injured his wife Khamisa (P,W.4) and Chatar Dan (P.W. 5) Proceeded ahead. After going about half a kilo meter he boarded a truck and went to Balotra to the house of Advocate Lakh Singh. Advocate Lakh Singh was not available and therefore, Bhike Khan got the report scribed by some other person present in the office of the Advocate and went to Police Station, Mandawar. He gave the report Ex.P/1 to S.H.O. Ram Swaroop (P.W. 15). Advocate Lakh Singh was not available and therefore, Bhike Khan got the report scribed by some other person present in the office of the Advocate and went to Police Station, Mandawar. He gave the report Ex.P/1 to S.H.O. Ram Swaroop (P.W. 15). Just then Mubarak (P.W. 3) another brother of Bhike Khan (P.W. 1) reached police station and informed that Barkat Khan had expired. A note to that effect was made at the bottom of the F.I.R. The S.H.O. registered the case and proceeded to the site. In the morning on August 11, 1983 he inspected the site and propared necessary memos. The postmortem of the dead body was conducted by Dr. Nand Lal Gupta (P.W. 2) on August 11,1983. The postmortem report is Ex. P/5. The Doctor noted following injuries on the dead body:- 1. Lacerated wound 2cm x 1.5 cm x 1 mm on left side of forehead 2 cm above outer canthus of left eye. 2. Lacerated wound 2 cm x 1 cm x 2 mm on left side of forehead 5 cm above the outer canthus of left eye. 3. Swelling 7 cm x 6 cm on left upper arm, 8 cm below left aeromion process. 4. Fracture of shaft of left numerous (closed fracture). 5. Swelling 6 cm x 5 cm of left forearm 12 cm below elbow. 6. Fracture of shaft of both left radius and ulna (closed-fracture) 7. Swelling 7 cm x 4 cm of right forearm, 17 cm below elbow. 8. Fracture of shaft of both right radius and unla (closed fracture). 9. Bruise 37 cm x 4 cm on back, extending from upper boarder of left-scapula to lower boarder of light scapula. 10. Bruise 11 cm x 4 cmm on back 12 cm below lower angle of left scapula. 11. Bruise 7 cm x 2.5 cm on lateral aspect of left thigh 13 cm below left anterior superior iliae spine. 12. Bruise 8 cm x 2.5 cm on anterolateral aspect of left thigh, 9 cm below anterior superior iliae spine. 13. Lacerated wound 11 cm x 2 cm x 1 cm on anterior aspect of left leg, 10 cm below knee. 14. Compound multiple fractures of right tibia and fibula. 3. According to the Doctor all the injuries sustained by the deceased were antemortem and could be caused by lathi. The two appellants were arrested on August 13, 1983. 13. Lacerated wound 11 cm x 2 cm x 1 cm on anterior aspect of left leg, 10 cm below knee. 14. Compound multiple fractures of right tibia and fibula. 3. According to the Doctor all the injuries sustained by the deceased were antemortem and could be caused by lathi. The two appellants were arrested on August 13, 1983. In pursuance of the information furnished by them, one lathi each was recovered from their respective houses. The lathies being suspected of having blood stains were sent for Chemical Examination. The report of the Chemical Examiner was that the lathies were stained with human blood. 4. Upon completion of necessary investigation chargesheet was filed against the appellants in the court of Additional Munsif and Judicial Magistrate, Balotra. The learned Magistrate committed the case to the Court of Sessions Judge, Balotra. The learned Sessions Judge, charge sheeted the appellants and recorded their pleas. On their denial of the charges, trial proceeded. Prosecution examined fifteen witnesses in all. The appellants in their statements under section 313 of the Code of Criminal Procedure, denied the allegations levelled against them. Muse Khan stated that his niece was married to the brother of Bhike Khan (P.W. 1). When she was sent back he had objected and therefore, he has been wrongly involved for the sake of vengeance. The learned Judge placing reliance on the prosecution evidence passed the judgment under appeal filed in this Court; 5. We heard the learned counsel for the appellants and the learned Public Prosecutor and perused the record of the case. 6. The learned counsel for the appellants has assailed the findings of the learned Sessions Judge on a number of grounds. According to the learned counsel Bhike Khan (PW. 1) and Shakura (P.W. 11) have been implanted as eye witnesses and were not at the site to see the occurrence. The learned counsel emphasized that prosecution could not establish any motive for the appellants to commit the crime. The fairness of the investigation has also been challenged on the ground that neither the tiffin career (Kator Dan) in which Shakura (P.W. 11) is said to have taken the food was recovered from the site nor the daughter of Bhike Khan was examined to state as to where the she goats of Bhike Khan had gone after Bhike Khan went near Barkat. The judgment has also been assailed on the ground that Ganga Ram(D.W. 2) in whose field the occurrence had taken place has not been examined by the prosecution and when examined by the defence, his statement was not considered by the learned Judge. 7. Upon careful scrutiny of the statements of Bhike Khan (P.w. 1) and Shakura we agree with the learned trial Judge that their presence at or near the site has been established. Shakura (P.w. 11) has stated that she had gone with food for her husband and her husband had taken food in the afternoon and she and her husband had gone to bring the cow and the bullocks from the field of Ganga Ram where they were grazing. She has given the details regarding the two appellants coming near her husband and inflicting lathi blows. She has also stated about her raising the cries and Bhike Khan reaching the place. Simply because the tiffin career (Kator Dan) in which Shakura had taken the food for her husband has not been taken by the police, her statement, otherwise inspiring confidence, cannot be discarded. Bhike Khan is the brother of the deceased without going into the statements of the witnesses, it may appear strange that of all the persons only the real brother of the deceased would have been there on the road waiting for the cry of his sister-in-law and rushing to the site and seeing the incident. However, upon careful examination of the statements of the witnesses and the checks available on record, we are of the opinion that Bhike Khan [had really gone to see his daughter who had gone to graze the she-goats. Bhike Khan is the person who had gone to the village for help and had brought the injured on a cot on the road to take him to the hospital. Khamisa (P.w. 4) and Chatar Dan (P.w. 5) have been declared hostile by the prosecution for the reason that they have not supported the prosecution case that Bhike Khan (P.w. 1) and Shakura (P.w. 11) told them that the appellants were the assailants but they have at least admitted the fact that they at the instance of Bhike Khan they lifted the injured on the cot and brought him to the road. Bhike Khan has stated that as there was no conveyance available to take the injured to hospital he proceeded ahead. That the driver of the truck he boarded was not prepared to go back to the place where the injured was and take him to the hospital and in that circumstance he went to Balotra to get the report scribed from the Advocate. The learned counsel for the appellants strenuously contended that the very fact of going to the Advocate to get the report scribed, instead of directly going to the police when his brother was lying injured, shows that he wanted legal advice to implicate the appellants without himself seeing them committing the crime. 8. The learned Public Prosecutor submitted that this argument will not be of any help to the defence because many a times the villagers get the report scribed and take it to the Police Station because of their apprehension that in case written report would not be there, they would not be heard by the police or they would not be able to narrate the facts properly. True it is that in a case where the brother was lying injured Bhike Khan (P.W.l) was expected to rush to the Police Station immediately without wasting time for getting the report scribed but in case of his having acquaintance with the Advocate if he preferred to get the report scribed by him then that in itself would not be a circumstance to create suspicion for his evidence. 9. The learned counsel for the appellants referred to the statement of Kaloo (P.w. 4) that he had accompanied Bhike Khan (P.w. 1) and on Bhike Khan naming Muse Khan and Mooje Khan as the assailants he objected to it, and was told by Bhike Khan that he had suspicion on those two persons and so he was getting the names mentioned in the F.I.R. This according to the learned counsel raises suspicion on the version of Bhike Khan that he had actually seen the appellants giving beating to his brother. 10. It is pertinent to note that Kaloo had not told this fact before the police nor was any question asked to Bhike Khan about Kaloos stating any such thing at the Police Station. Bhike Khan had stated that he had gone to the Police Station alone. 10. It is pertinent to note that Kaloo had not told this fact before the police nor was any question asked to Bhike Khan about Kaloos stating any such thing at the Police Station. Bhike Khan had stated that he had gone to the Police Station alone. In that view of the matter Kaloos statement that Bhike Khan told him that he had suspicion on the two appellants has rightly not been believed by the learned trial Judge. 11. It has been vehemently argued by the learned counsel for the appellants that in the natural course of events Ganga Ram must have been there in his field or near about at the time of the incident and the prosecution should have examined him That the defence examined it as D.W. 2 but the learned trial Judge has erred in not attaching any importance to his evidence. 12. The place of occurrence is the field of Ganga Ram. According to the prosecution witnesses Ganga Ram was not present there in the field or nearby. Ganga Ram (D.W.2) has however claimed to be an eye witness. He has stated that some unknown outsider a very tall person about seven feet had given a beating to Barkat. He had further stated that neither the wife of the deceased nor any one else was there where cattle were grazing in the field. According to the witness that outsider had inflicted five or six lathi blows to Barkat and on seeing that he (i.e. the witness) returned to his dhani. He further stated that he went to the village and informed Bhike Khan and other members of the family of the deceased and Tamasi. The learned trial Judge has rightly disbelieved the witness in view of the fact despite his being present when the police reached the site he did not tell that police what he claims to have seen. He has also not told the police that he had gone to the village and had called Bhike Khan, Tamasi and Barkats wife. If the witness, as he states had told this fact to the accused at the time of their arrest, there could not be any reason for them or their relatives not to tell this fact to the police or even Ganga Ram could have told the police that innocent persons are being arrested whereas the real assailant is some outsider. If the witness, as he states had told this fact to the accused at the time of their arrest, there could not be any reason for them or their relatives not to tell this fact to the police or even Ganga Ram could have told the police that innocent persons are being arrested whereas the real assailant is some outsider. The witness has gone to this extent that relations between Barkat and the accused were very cordial. This is in utter contradiction to the prosecution case and even the version given by Bhola (D.w. 1), Mooldan (D.w-3) and Kaloo (D.w. 4). Yet another point creating doubt about the truthfulness of the witness is that in order to falsify the prosecution case regarding the motive for committing the crime he had gone to even this extent that Kamli wife of Mooje Khan was living with her husband till the date the statement of the witness in the Court. The date of statement is July 28, 1984, whereas the prosecution witnesses as well as three other defence witnesses are categoric on the point that prior to the incident Mooje Khans wife Kamli had left his house and had gone to her fathers house and had not returned since then. 13. It is also pertinent to note that there is no suggestion to the prosecution witnesses about the version given by Ganga Ram (D.w. 2). Nor have the appellants in their statements under section 313 of the Code of Criminal Procedure taken such a plea. In this view of the matter, the version given by Ganga Ram appears to be an after thought and for the reasons enumerated above has been rightly discarded by the learned trial Judge. 14. The next point arising for determination is as to what motivated the accused appellants to commit the crime. The prosecution version through out is that about a month prior to the incident Mooje Khan appellant had given a beating to his wife Mst. Kamli and she left the house and took shelter in the house of deceased Barkat situated at a distance of about thirty pounds. Mooje Khan enquired of Barkat as to whether his wife was there and on Barkats denying he gave a threatening to him. She has also stated about Barkat sending his son to her brothers house and her brother coming there and taking her with him. Mooje Khan enquired of Barkat as to whether his wife was there and on Barkats denying he gave a threatening to him. She has also stated about Barkat sending his son to her brothers house and her brother coming there and taking her with him. Bhike Khan (P.w. 1) and Mubarak (P.w. 3) have supported this version. Kamli wife of appellant Mooje Khan has appeared in the witness box as P.w. 9 and stated about her husband giving a beating to her and her taking shelter in Barkats house and Barkat sending his son for her brother and her going with her brother and living with him till her statement in the Court, As stated earlier the three defence witnesses viz. Bhola (D.w. 1). Mool Dan (D.w. 3) and Kaloo (D.w. 4) have also supported the prosecution case to this extent. 15. The learned counsel for the appellants submitted that this cannot be a reason for which the appellants would have committed such a heinous crime specially when one month since the incident of Kamli taking shelter in the house of Barkat has passed and there was ample opportunity during that month to take revenge from Barkat for his interfering in the domestic affairs of Mooje Khan. It has also been argued that Barkat was a man of bad reputation and somebody annoyed with him on account of his awaragardhi (wagabound habits) might have given him a beating which resulted in his death. 16. The defence witnesses have stated about Barkat not having good reputation but none of them could state as to what was his conduct which led them to form such an opinion. According to them they do not understand what was the reason for Mooje Khans wife taking shelter in the house of Barkat. Bhola (D.w. 1) has not stated about any bad habit of the deceased. He had only stated that he was not grazing the cattle which version is falsified by the fact that the incident had taken place outside the village where, as stated by other witnesses the deceased had gone to graze the cattle. D.w. 2 Ganga Rams statement we have discussed in detail. He has only stated that outsider hade given a beating to Barkat. He has not stated anything about the character or conduct of the deceased. D.w. 2 Ganga Rams statement we have discussed in detail. He has only stated that outsider hade given a beating to Barkat. He has not stated anything about the character or conduct of the deceased. Mool Dan (D.w. 3) has stated that Barkat was a driver and had certain bad habits which has caused grievance to many a persons. He in his cross-examination could not tell as to who was the person aggrieved by his conduct and what was his bad habits. Kalu (P.W. 4) has also not stated any thing about any bad habit or objectionable action of Barkat. Defence has thus been unable to prove that, Barkat was a man of bad character and had many enemies and some such enemy might have given a beating to him. In view of the cogent convincing evidence of the eye witnesses Bhike Khan and Shakura, we agree with the conclusion arrived at by the learned trial Judge that the prosecution case about the appellants being the assailants stands duly established. 17. The learned counsel for the appellants in the alternative argued that in case his arguments about the innocence of the appellants do not convince the court, it may be considered that the case does not fall with in the ambit of sec. 302 I.P.C. The learned counsel submitted that the weapon said to have been used by the appellants, the parts of the body affected by the blows and the circumstances of the case i.e. there being enmity on a trivial matter as alleged by the prosecution, are sufficient to convince the Court that there was no intention on the part of the assailants to cause the murder of Barkat and the conviction if at all should be under section 304 Part-II, I.P.C. 18. The learned Public Prosecutor controverted this contention and submitted that the multiple injuries sustained by Barkat were sufficient to cause his death and the assailants had mercilessly beaten him though it might be with lathies and therefore, the conviction u/s. 302 I.P.C. is justiciable. To substantiate his contention the learned counsel for the appellants has placed reliance on certain decisions discussed below. 19. In the case of Nand Ram vs. The State of Rajasthan (1) injuries were caused by lathi blows and none of the injuries was individually sufficient to cause death. To substantiate his contention the learned counsel for the appellants has placed reliance on certain decisions discussed below. 19. In the case of Nand Ram vs. The State of Rajasthan (1) injuries were caused by lathi blows and none of the injuries was individually sufficient to cause death. In the absence of pre-plan to murder, the case was not held to fall in any first four clauses of sec. 300 and the appellants were convicted u/s. 304 Part-I read with Sec. 149 I.P.C. 20. In the case of Mulkuri Ramodara Reddy vs. State of Andhra Pradesh (2), the appellants were held guilty u/s. 304 Part-II and not u/s. 302 I.P.C. for the reason that the injuries were not on vital part of the deceased and the incident was seven years old, and murder was due to political revalry. 21. In the case of Patia vs. State of Rajasthan (3), the accused had caused lathi injuries to chest, legs and hands. There were eight injuries. Two of them on the occipital region, one on the chest and other on posterior region. The remaining were on arms, thigh and abdomen. It was held that the intention was to give a good beating to the deceased and not to cause death. The offence was held to be punishable u/s. 304 Part-II I.P.C. 22. The principle enunciated in those decisions are applicable to the case on hand and in that light we would examine the matter. 23. It is important to note that the weapons used by the assailants were lathies. None of the injuries was on any vital part of the body. Injuries No. 1 and 2 are lacerated wounds on the forehead and the dimension shows that those blows might not have been inflicted with force. Injuries No. 6 and 14 were fractures of radius and ulna and Tibea and Fibula. The rest of the injuries were either swelling or bruises or lacerated wounds. Cases are not rare in which clever assailants cause injuries to non vital organs of the body so that the intention to murder may not be inferred. However, intention is to be gathered from all the circumstances of the case and therefore, the fact of the part of the body affected should be seen with other facts and circumstances of the case. 24. However, intention is to be gathered from all the circumstances of the case and therefore, the fact of the part of the body affected should be seen with other facts and circumstances of the case. 24. In the present case the enmity was because of Barkat giving shelter to Kamli wife of appellant Mooje Khan and arranging for her going to her fathers house. When Kamli was there in the house of Barkat, Mooje Khan inquired from outside only and had not entered the house. It so appears that when Kamli went away to her fathers houre and did not return Mooje Khan felt annoyed and became vindictive and with the help of Moose Khan gave severe beating to Barkat and Barkat succumbed to the injuries sustained by him. Though the injuries are fourteen in number only two of them appear to have been caused by blows with force. An important factor worth consideration is that Barkat had not died instantaneously. Prompt medical aid could not be made available to him because Bhike Khan had wasted time in going to Balotra to the house of the Advocate for getting the report scribed instead of caring to take the injured to the hospital by some means or other and if no means was available by rushing to the Police Station. 25. In view of this discussion, we are of the opinion that the appellants cannot be attributed any intention to commit murder of Barkat. There intention appears to be to give a severe beating to Barkat. However, the severe beating with lathis and the number of injuries caused are of the type that appellants can be attributed with the intention to cause such bodily injuries which may cause death. The case of the appellants, therefore, falls within the ambit of Sec. 304 part I, IPC. 26. Consequently, the appeal is partly allowed. The conviction and sentences of the appellants u/s. 302 are set aside. They are instead of convicted u/s. 304 Part I, read with Sec. 34 IPC and sentenced to imprisonment for a period of seven years and a fine of Rupees one thousand each, in default of payment of fine to undergo one years R.I. each. On the realisation of the fine, an amount of Rs. 1500/- shall be given to Smt. Shakura, wife of deceased Barkat by way of compensation.