JUDGMENT 1. 1. This appeal is directed against the judgment dated 25-4-1986 passed by the learned Additional Sessions Judge, No. 1, Hanumangarh, by which appellants Chet Ram and Roop Ram were convicted under Section 302/34 IPC and sentenced to imprisonment for life and a fine of Rs. 2,000/- each, in default of payment to undergo one year's rigorous imprisonment. 2. D.B. Criminal Appeal No. 200/86 has been filed by appellants Chetram and Roopram. Thereafter D.B. Criminal Jail Appeal No. 85/87 was also filed by Roopram. As the two appeals arise out of the same judgment, the jail appeal filed by Roopram was connected with the represented appeal and the two appeals are disposed of by a common judgment. 3. Briefly stated, the prosecution case is that a , day before 9-8-1984, the date of incident, there was some quarrel between the children of Chetram and deceased Nanakram. Nanakram was out that day and Chetram told Nanakram's wife that he would like to talk and see him when Nanakram returns. On 9-8-l984 at about 8.00 P.M., Nanakram on his retmn from Bikaner was sitting on the platform in the joint courtyard of himself and Chetram. At that time Chetram armed with Gandasi and Roopram armed with lathi attacked Nanakram and gave a beating to him. Nanakram raised a cry at which his wife Saraswati, father-in-law Sunderram, Santram and others rushed to the site and saw the appellants inflicting blows to Nanakram, injured Nanakram was taken to Government Hospital, Hanumangarh Town and was admitted there. He breathed his last at 2.30 P.M. on 10-8-1984. This case, registered under Section 307, IPC at the information Ex. P 7 furnished by Smt. Saraswati (PW 2), was converted into 302 IPC. Rajveer Singh (PW 7) of Police Ration Hanumangarh Town went to the site and made necessary investigation. Chetram and Roopram were arrested. In pursuance of the information furnished by Chetram Gandasi was recovered. At the information furnished by Roopram, lathi was recovered. On postmortem examination of the dead body of Nanak Ram, Dr. Kailash Falod (PW 5) noted the following eight injuries on his person :PEDIGREE TABLE The doctor prepared the post mortem examination report Ex. P 17. Injury No. 1 & 2 were serious in nature and were sufficient to cause death. At the information furnished by Roopram, lathi was recovered. On postmortem examination of the dead body of Nanak Ram, Dr. Kailash Falod (PW 5) noted the following eight injuries on his person :PEDIGREE TABLE The doctor prepared the post mortem examination report Ex. P 17. Injury No. 1 & 2 were serious in nature and were sufficient to cause death. The charge sheet being filed against the two appellants, the Chief Judicial Magistrate Hanumangarh, committed the case to the Court of Additional Sessions Judge No. 1, Hanumangarh. The learned judge charge-sheeted the appellants under section 302/34 IPC and recorded their plea. Both of them denied the charges and claimed to be tried. Seven witnesses were examined by the prosecution to substantiate its case. In their statements under sect on 313, Cr. PC both the appellants denied the allegations. No defence witness was examined. The learned trial Judge placed reliance on the testimony of Saraswati wife of Nanakram (PW 2) and Pat Ram (PW 1) and passed the judgment under appeal. 4. We heard Mr. M.K. Garg, learned counsel for the appellants and Mr. S.M. Singhvi, learned Public prosecutor for the State. 5. At the commencement of the arguments, Mr. Garg the learned counsel for the appellants submitted that he does not want to press the appeal on merits but wants to confine his arguments to the nature of offence made out against the appellants. The learned counsel vehemently stressed that there is specific evidence about Chetram inflicting blows with the wrong side of Gandasi, which clearly indicates that his intention was not to commit murder of Nanakram. The learned counsel submitted that the incident had taken place without there being any previous enmity between the deceased and the appellants and, therefore, conviction under section 302/34 IPC is not maintainable. 6. The learned Public prosecutor justified the conviction for the charge of murder under section 302/34 IPC and submitted that two persons inflicting blows on the head of an unarmed person have rightly been attributed to the common intention to commit murder. 7. Saraswati and Patram are the alleged eye-witnesses of the occurrence. Both these witnesses have admitted that it was on hearing the cry of Nanakram that they reached the site. This shows that when they reached the site, the beating had already started. 7. Saraswati and Patram are the alleged eye-witnesses of the occurrence. Both these witnesses have admitted that it was on hearing the cry of Nanakram that they reached the site. This shows that when they reached the site, the beating had already started. Injury No. 1 & 2, according to doctor Kailash Phalod (PW 5) were not in a position to see and state as to which particular injury was caused by which assailant. According to Saraswati, out of the three injuries on the head, two were inflicted by Chet Ram and one by Roopram but she could not say as to which particular injury was inflicted by which accused. Similar is the statement of Patram. Both these witnesses have categorically stated that Chetram had used wrong side of the Gandasi. This is corroborated by medical evidence because the wounds are lacerated. 8. The parties were not on inimical terms. The annoyance leading to the incident was on account of the quarrel between the children of Nanak Ram and Chetram. Roopram being agricultural servant of Chetram was there with him. As to what happened prior to the two witnesses rushing to the site on hearing the cry of Nanakram, is not known. If the intention of Chetram would have been show to commit the murder of Nanakram, he would have used the sharp side of the Gandasi. The use of blunt side of a sharp weapon shows that the intention was simply to give a beating, However, if two persons give a beating with Gandasi and lathi to an unarmed person and the fatal blows are on the head, they can well be imputed with the knowledge that the injuries caused by them may prove fatal for the victim. The case of the appellants, therefore, falls within the admit of Section 304 Part II, IPC and not under section 302, Indian Penal Code. 9. Consequently, the appeal is partly allowed. The conviction and sentences awarded to the appellants Chet Ram and Roopram under section 302/34, IPC are set aside. They are instead conviction under section 304 Part II, IPC and sentenced to five years' rigorous imprisonment and a fine of Rs. 1,000/- each, in default to undergo six months' rigorous imprisonment.Appeal Partly Allowed. *******