Judgment S.B.Sinha and R.N.Sahay JJ. 1. The appellants, who are three in number, have been convicted by Sri B.K. Dubey, District and Sessions Judge, Gumla in terms of the judgment, dated 19th February, 1988 in Sessions Trial No. 302 of 1986 for commission or an offence under sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life. The Appellant No.1 has further been convicted for commission of an offence u/s. 323 of the Indian Penal Code and has been sentenced to undergo Rigorous Imprisonment for one month only. 2. The facts of the case lie in a very narrow compass. On 26.3.1986, the informant, Budhna Kumhar (P.W.3) his wife Chouthi (deceased), their son Bigan Kumhar (P.W. 1) and daughter Karmi Kumharin (P.W. 2) took their food in night and they were just to go to their bed while three appellants came to their house and began to abuse the informant. The informant and his family came out from their house and protested. Allegedly that the appellants began assaulting the informant, whereupon the deceased as also P.W. 1 and P.W. 2 intervened. Allegedly at that point of time, the appellants started assaulting the deceased as also P.W. 1 and P.W. 2. It has further been alleged that the deceased fell down and died after one hour. The First Information Report was lodged at the Chainpur Police Station in the district of Gumla on 27.3.1986 at about 9.50 a.m. 3. The prosecution in support of its case examined seven witnesses. P. W. 1, who is the son of the deceased, P.W. 2 has been tendered and P.W. 3 is the informant. The eye witnesses aforementioned namely, P.W. 1 and P.W. 3 supported the prosecution case as made in the First Information Report. Both the witnesses stated that all the appellants came to their house and started abusing them and when they protested, the appellants first assaulted P.W. 3 and thereafter when the deceased and P.W. 1 and P.W. 2 intervened, she was assaulted by the appellants. It has further come on records that when the deceased fell down, the appellants allegedly assaulted her by kicks and fists. 4. In this case, therefore, the prosecution case is that the appellants allegedly assaulted the deceased by kicks and fists only. No case has been made out by the prosecution to the effect that the deceased was assaulted by any weapon. 4. In this case, therefore, the prosecution case is that the appellants allegedly assaulted the deceased by kicks and fists only. No case has been made out by the prosecution to the effect that the deceased was assaulted by any weapon. The medical evidences however, suggests that the head injury suffered by the deceased was the vital one and was sufficient to cause her death in ordinary course of nature. According to Doctor (P.W. 6), the injuries could not have been caused either by a kick on the head or by reason of a fall on stone. According to the doctor, the said injury was possible only by assault on the head by mean of a hard and blunt substance. 5. The prosecution case, therefore, are if given face value and taken to be correct in its entirety, it is evident that no case under sections 302/34 of the Indian Penal Code against the appellants has been made out. It is not a case, where any particular accused persons who charged u/s. 302 of the Indian Penal Code. From the evidences on records, it is evident that on that day Holi was being celebrated and everybody was under the influence of liquor. Evidently, the appellants came to the house of the informant not with an intention to kill anybody as otherwise they would have come with arms. Further the very fact that they began abusing the informant first and assaulted him clearly goes to show that the intention on the part of the appellants was to assault the informant only, but however, when the deceased intervened, she was also assaulted by the appellants. 6. It is, therefore not a case where it can be said that the appellants had the knowledge that the injury caused to the deceased shall in the ordinary course, be sufficient to cause the death or they had the knowledge that such injury would cause her death. As indicated hereinbefore, as the common intention of all the appellants was only to assault the deceased and her husband, in our opinion, the judgment of conviction and sentence passed as against the appellants under sections 302/34 of the Indian Penal Code cannot be sustained. 7. In the result, the conviction under sections 302/34 of the Indian Penal Code is altered to one under sections 323/34. 7. In the result, the conviction under sections 302/34 of the Indian Penal Code is altered to one under sections 323/34. So far as the sentence to be imposed on the appellants is concerned, we are of the view that Rigorous Imprisonment for a period of three months would meet the ends of justice. However, beside the aforementioned sentence, the appellants would also be liable to pay fine of Rs. 500/ - each and in default, they will undergo simple imprisonment for a further of one month each. If a portion of the amount of fine imposed on the appellants is realised, the same shall be paid to the informant. So far as the conviction of the Appellant No.1 u/s. 323 of the Indian Penal Code is concerned, the same IS maintained. However, both the sentences would run concurrently.