JUDGMENT 1. 1. The learned Addl. Sessions Judge, Rajsamand has convicted appellants Roop Singh and Hazari Singh of offence under section 302, IPC and has sentenced each one of them to undergo imprisonment for life and to pay fine of Rs. 50/- each side his judgment dated 3-12-1984 recorded in Sessions case No. 5/84. Aggrieved, the appellants have come in appeal. 2. Today, the matter came up before this Court in connection with D B. Criminal Misc. (Bail) Application No. 335/1990 but the learned counsel for the appellants submitted that he does not challenge the prosecution story as such and would confine his arguments to the nature of the offence made out and sentence to be passed against the appellants and hence he would not press the bail application, if the appeal is heard on merits itself. 3. The learned public prosecutor has no objection to the appeal being heard on merits. We also do not find any impediment in hearing the appeal on merits because only a short question is involved in this appeal. Hence, we have heard the appeal itself. 4. Briefly stated, the prosecution story is that on 15-1-1983 deceased Nahar Singh was proceeding with his son Bhimsingh PW 8 from village Kunderi towards their residence at village Nayakua Pipli with a bullock cart of grass. At about sunset, both these persons reached near a chowraha on the out skirts of village Bagar. There, they met the two appellants Roop Singh and Hazari Singh. All of a sudden Roop Singh and Hazari Singh started pelting stones at deceased Nahar Singh upon which Nahar Singh stood upon the bullock cart. However, he could not keep the balance and fell down. Thereupon. Roop Singh gave an axe blow on the head of Nahar Singh. Thereafter, Hazari Singh dealt an axe blow on his right leg. Thereafter, Roop Singh dealt axe blows on the hand, foot and forehead of the dead. Seeing his father being assaulted PW 1 Bhimsingh rushed towards the village and informed Bhanwar Singh PW 2 and others regarding this incident. Upon this Bhanwar Singh, Tolsingh and Jalam Singh reached the spot where Nahar Singh also informed them that he had been assaulted by Hazari Singh and Roop Singh. After some time Nahar Singh succumbed to his injuries. 5. Upon this Bhanwar Singh, Tolsingh and Jalam Singh reached the spot where Nahar Singh also informed them that he had been assaulted by Hazari Singh and Roop Singh. After some time Nahar Singh succumbed to his injuries. 5. A written report of the incident (Ex.P 1) was lodged, the same day at Police Station, Deogarh by Mohan Singh PW 1 at about 10 p.m. The then SHO Arjunlal recorded an F.I.R. Ex.P 11 on its basis. However, the investigation of the case was handed over by the SHO to PW 16 Khadim Hussain, who reached the scene of occurrence next day i.e. on 16-11-1983. He inspected the site and prepared site plan Ex.P 4 and site inspection memo Ex.P 5. He made certain recoveries from the scene of occurrence and examined the dead body and prepared panchayatnama Ex.P 7. He sent the dead body for post-mortem examination to Dr. Rajesh Gupta, Medical Officer, P.H.C., Deoearh. 6. Dr. Rajesh Gupta conducted the post-mortem examination of the deceased and found the following external injuries on his person 1. Lacerated wound 3" x 1/2" x 1/4" over forehead 2" above left eye brow 2 fractured frontal bone caused by blunt weapon grievous in nature. 2. Lacerated wound 1 x 3/4" x 1/2" x 1/4" over left parietal region 3" above left ear caused by blunt weapon, simple in nature, 3. Lacerated wound 11/2" x 1/4" x 1/4" over scalp 41/2" above Rt. eye brow caused by blunt weapon, simple in nature. 4. Incised wound 3" x 2" x 1/4" over Rt. partital region 31/2" above and posterior to Rt. ear caused by sharp weapon simple in nature, 5. Incised wound whole circumstance of left forearm, intact only with skin 2" medial side, both bones and all muscles of left forearm cut 21/2" above wiist joint. Caused by sharp weapon grievous in nature, 6. Incised wound 31/2" x 11/2" x 1" posterior-lateral surface of left thing just above left knee caused by sharp weapon, simple in nature. 7. Contusion 3"x 1/2" dorsal surface of Rt. hand fracture proximal rhalangeal bone of index and middle finger caused by blunt weapon grievous in nature, 8. Incised wound r'x3/4"x 1/4" medial side of left thigh I" above knee joint caused by sharp weapon, simple in nature, 9. Incised wound whole circumstances of Rt. 7. Contusion 3"x 1/2" dorsal surface of Rt. hand fracture proximal rhalangeal bone of index and middle finger caused by blunt weapon grievous in nature, 8. Incised wound r'x3/4"x 1/4" medial side of left thigh I" above knee joint caused by sharp weapon, simple in nature, 9. Incised wound whole circumstances of Rt. leg separated from the body 2" above ankle joint caused by sharp weapon, grievous in nature, 10. Abrasion 3/4"x 1/4" lateral surface middle of Rt. thigh, caused by blunt weapon, simple in nature, 11. Abrasion 21/4"x1/4," lateral surface of Rt. side of chest caused by blunt weapon, simple in nature, 12. Incised wound 1/4"x ⅛" dorsal surface of Rt. forearm 31/2" below Elbow joint, caused by sharp weapon, simple in nature, 13. Abrasion 1/4"x 1/4" over spine of Rt. scapula caused by blunt weapon, simple in nature. 7. On internal examination Dr. Gupta found that the frontal bone had been fractured and the brain membranes were congested and blood clots were present in between the frontal bone and membranes. He found the brain also congested. He found both the lungs engorged with blood, Right side of heart was full of blood while left side of the heart was empty. The large vessels were also engorged, so were spleen and kidneys. Liver was congested. He found that left radious and ulna had been cut and likewise right tibia and fibula had been cut. He also found proximal phalangeal bones of right index and middle finger fractured. In the opinion of Dr. Gupta, the cause of the death was coma due to injury to brain. According to him death occurred within 24 hours from the time of post-mortem. Dr. Gupta prepared the post-mortem report Ex. P. 12 in this regard. He also prepared the supplementary post-mortem report which, though not exhibited appears at pate A/7 of the record of the trial court. 8. The investigating officer made certain other investigations and arrested accused Roop Sineh on 18-11-83 at 10 a.m. vide Ex. P. 16. He arrested accused Hazari Singh, the same day vide Ex. P. 19. Certain recoveries were made at the instance of the accused-persons and after completion of the investigation the accused-persons were challaned before the Munsif & Judicial Magistrate, First Class, Bhim camp Deogarh, who committed both of them to stand trial to the learned Addl. Sessions Judge, Rajsamand for offence under section 302, I.P.C. 9. P. 19. Certain recoveries were made at the instance of the accused-persons and after completion of the investigation the accused-persons were challaned before the Munsif & Judicial Magistrate, First Class, Bhim camp Deogarh, who committed both of them to stand trial to the learned Addl. Sessions Judge, Rajsamand for offence under section 302, I.P.C. 9. The learned trial judge framed separate charges against two appellants for offence under section 302, IPC. Both of them pleaded not guilty and claimed to be trial. At the trial, the prosecution examined PW 1 Mohan Singh, PW 2 Bhanwar Singh, PW 3 Jalam Singh, PW 4Tol Singh, PW 5 Laxman Singh, PW 6 Ram Singh, PW 7 Tikam Singh, PW 8 Bhim Singh, PW 9 Prem Singh PW 10 Arjun Lal PW/11 Ajab Singh, PW 12 Kalu Singh, PW 13 Dr. Rajesh Gupta, PW 14 Kupa Ram PW 15 Chun Singh, PW 16 Khadim Hussain and PW 17 Mod Singh. 10. The statement of the two appellants were recorded under section 313. Cr. PC and both of them denied the prosecution story. They, however, did not lead any defence evidence. 11. The learned trial judge after hearing both the sides accepted the testimony of the sole eye-witness Bhim Singh as corroborated by the medical evidence. He also found corroboration of his story by certain recoveries made by the investigating officer. He was of the view that both the appellants assaulted the deceased with deadly weapons, namely, axes and caused various injuries to him as described above. He was, therefore, of the view that the appellants were guilty of an offence under Section 302, IPC, He, accordingly, convicted and sentenced them as stated above. 12. In the present appeal, the learned counsel for the appellants does not challenge the testimony of the star witness Bhim Singh. He, however, submits that from the testimony of Bhim Singh it is not established beyond shadow of reasonable doubt that the appellants intended to commit murder of deceased Nahar Singh. He submits that there were four injuries on the head of the deceased, out of which injury no. 1 was grievous and other injuries no. 2 and 3 were simple. According to medical opinion all these three injuries were lacerated wounds, showing thereby that the appellants even though armed with axes did not cause any injury on the head with the sharp sides of the axes, except injury no. 1 was grievous and other injuries no. 2 and 3 were simple. According to medical opinion all these three injuries were lacerated wounds, showing thereby that the appellants even though armed with axes did not cause any injury on the head with the sharp sides of the axes, except injury no. 4 which was simple in nature. His submission is that and the appellants really intended to commit murder of deceased Nahar Singh, then they could have used the sharp side of the two axes in causing injuries no. 1 to 3 but they did not do so and this fact creates a doubt if the appellants at all intended to commit the murder of the deceased. He submits that injury no. 5 was on a non-vital part of the body though it had been caused by sharp object and was grievous in nature. Injury no. 6 was likewise on the left thigh and was not on vital part of the body. This injury was caused by the sharp side of the axe but was simple in nature. Injury no 7 was a contusion which could have been caused by the fall of the deceased from the cart. Injury no 8 was an incised wound on the knee joint and was simple in nature. Injury no. 9 was on the leg by sharp object and was grievous in nature. Injuries no. 10 and 11 were abrasions caused by blunt objects and could have been caused either by pelting of the stones or by fall of the deceased from the bullock cart. Injury no. 12 was on the arm and had been caused by a sharp object but was simple in nature Injury no. 13 was a mere abrasion and had been caused by some blunt object. His contention is that from the aforesaid injuries the only reasonable conclusion is that the accused appellants did not intend to commit murder of the deceased at all though they intended to inflict simple and grievous injuries to him so as to cripple him/for the life. He contends that it is unfortunate that the deceased succumbed to the injuries. In this context he referred to the statement of Dr. Rajesh Gupta recorded by the trial court wherein he admitted that Nahar Singh had died only because of haemorrhage. He submits that this admission of Dr. He contends that it is unfortunate that the deceased succumbed to the injuries. In this context he referred to the statement of Dr. Rajesh Gupta recorded by the trial court wherein he admitted that Nahar Singh had died only because of haemorrhage. He submits that this admission of Dr. Gupta militates against the conclusion given in the post-mortem report that the deceased had died because of injury no. 1. He further refers to the statement of Dr. Gupta wherein he mentions that the injuries found on the person of Nahar Singh were sufficient to cause death. He submits that doctor has not stated that the injuries were sufficient to cause death in the ordinary course of nature. 13. His next submission is that from the statement of the solitary eye-witness Bnim Singh. Roop Singh is said to have caused a blow with axe on the head of the deceased. It is not clear from this testimony if Roop Singh had caused injury no, 1, 2 or 3 or had caused injury no 4. He points out that Bhim Singh in his statement stated that Hazari Singh gave axe blow on the leg of his father esjs firk dk gtkjhflag us dqYgkM+h ls iSj dkV fn;kA . He does not ascribe any other injury to Hazari Singh. He further states that after his father had fallen Roop Singh gave some axe blows on the hand, legs and forehead of his father. His submission is that this evidence does not conclusively connect either Roop Singh or Hazari Singh with the fatal injuries. Moreover, in the above state of medical evidence, it is difficult to say with any amount of certainty as to which of the injuries had proved fatal. He, therefore, submits that the accused-appellants could at best be convicted for offence under section 326, IPC or alternatively for an offence under section 304 part II, IPC. He vehemently contends that the appellants could not have been convicted at all for offence under section 302, IPC. 14. He, therefore, submits that the accused-appellants could at best be convicted for offence under section 326, IPC or alternatively for an offence under section 304 part II, IPC. He vehemently contends that the appellants could not have been convicted at all for offence under section 302, IPC. 14. The learned Public Prosecutor opposes the appeal and submits that both the appellants brutally assaulted the deceased without any provocation and in the facts and circumstances of the case it must be held that they intended to commit murder of the deceased or at any rate they knew that their acts were so imminently dangerous as to cause death or such bodily injury as is likely to cause death. Hence the trial court rightly held the appellants guilty of offence under section 302, IPC. 15. We have considered the rival contentions and have carefully gone through the evidence on record. We have no hesitation in agreeing with the learned Addl. Sessions Judge that the accused-appellants committed an assault upon deceased Nahar Singh on the evening of 15-11-83 on the out skirts of village Bagar while both of them were armed with axes. Testimony of PW 8 Bhim Singh has not been impeached before us in any manner. We have gone through this testimony and we find the same to be reliable and worthy of credence and find no reason to differ from the learned Addl. Sessions Judge in his appreciation of this evidence which is corroborated by the medical evidence. Now the sole question before us is whether the accused-appellants could have been held guilty for offence under section 302, IPC or they are guilty of a lesser offence. Admittedly, both the accused-appellants were armed with axes which are sharp edged objects. Had the appellants intended to commit the murder of the deceased, there was nothing to prevent them from using the sharp side of the axes while striking the deceased on the head. But as already stated, out of the four injuries on the head three were caused by the blunt sides of the axe and only one injury was caused by the sharp side and this injury was simple. This fact goes to show that the intention of the appellants was not to commit murder of the deceased. But as already stated, out of the four injuries on the head three were caused by the blunt sides of the axe and only one injury was caused by the sharp side and this injury was simple. This fact goes to show that the intention of the appellants was not to commit murder of the deceased. The other injuries on the body of the deceased are on non vital parts and this further induces us to accept the submission of the learned counsel for the appellants that they really did not intend to commit the murder of the deceased but they wanted to inflict injuries upon him, which might either cripple him for the life or may teach him a lesson for the future. 16. As we read the evidence of Bhim Singh, it become apparent that Hazari Singh inflicted only one blow on the leg of the deceased which resulted in cutting of his leg. Of course, Roop Singh dealt one axe blow on the head of the deceased and after the deceased had fallen down he inflicted injuries on his arms, leg and forehead, but as pointed out earlier, none of the injuries on the head were sufficient to cause death of the deceased in the ordinary course of nature. Out of the four injuries on head, one was grievous but was caused by blunt side of the axe. The others were simple and out of them only one was caused by sharp side of the axe. The statement of Dr. Dugar was not recorded very happily. He contented himself by saying that the deceased had 13 injuries on his person and they were sufficient to cause death. He does not particularise which of the 13 injuries was sufficient to cause death in the ordinary course of nature. In post mortem report, he had mentioned coma as cause of death, coma caused by injury to brain. He did not state that this injury was sufficient to cause death in the ordinary course of nature. In his cross-examination he stated cause of death to be excessive hemorrhage. Thus, we find that his evidence is not very consistent. 17. The learned Addl. Sessions Judge did not frame charge against the appellants with the aid of section 34, IPC, which he ought to have done in this case. In his cross-examination he stated cause of death to be excessive hemorrhage. Thus, we find that his evidence is not very consistent. 17. The learned Addl. Sessions Judge did not frame charge against the appellants with the aid of section 34, IPC, which he ought to have done in this case. However, this point is not of much importance in the present case because in the circumstances of the case we have come to a definite conclusion that both the appellants acted in concert and they either intended to cause grievous hurt to the deceased so as to cripple him for life or they intended to case grievous hurt to him with a view to teach him a lesson. 18. In view of the aforesaid ocular and medical testimony, we find that Roop Singh must be held guilty for offence under section 324 or alternatively for offence under Section 325, IPC apart from offence under section 326, read with section 34, IPC. Hazari Singh must be held guilty of offence under section 326, IPC and of offence under section 324 or alternatively for offence under section 325 read with section 34, IPC. 19. The contention of the learned public prosecutor that the act of the appellants was so imminently dangerous that they must have known that the assault by them would cause death has to be noticed only for the sake of rejection because the medical evidence in this case has failed to establish as to which of the injuries was fatal. In the circumstances of the case, particularly when except injury no 4, no other injury was caused on the head by sharp side of the axe, we cannot predicate with any amount of certainty that the appellants had knowledge that their acts would cause death of the deceased. 20. In view of what we have stated above, we find ourselves unable to uphold the conviction of the appellants for offence under section 302, IPC and accept this appeal partly and acquit them of the offence under section 302, IPC and set aside the sentences passed on them on this count. However, we hold appellant Roop Singh guilty of an offence under section 324, IPC or alternatively of section 325, IPC and for offence under section 326 read with section 34, IPC. However, we hold appellant Roop Singh guilty of an offence under section 324, IPC or alternatively of section 325, IPC and for offence under section 326 read with section 34, IPC. We hold Hazari Singh guilty of offence under section 326, IPC and also held him guilty for offence under section 324/34 or alternatively of offence under section 325, IPC read with section 34, IPC. 21. Now comes the question of sentence. In the facts and circumstances of this case, we are of the opinion that ends of justice would be met if Roop Singh is sentenced to undergo rigorous imprisonment for two years for offence under section 325 or alternatively under section 324, IPC. We sentence him to undergo rigorous imprisonment of 10 years for offence under section 326 read with section 34, IPC and to pay a fine of Rs. 100/-, in default of payment of fine to undergo further rigorous imprisonment for one month. 22. Hazari Singh shall undergo rigorous imprisonment for 10 years for offence under section 326, IPC and shall pay a fine of Rs. 100/-, and in default of payment of fine shall undergo rigorous imprisonment for one month. He shall undergo rigorous imprisonment for two years for offence under section 324 or alternatively under section 325 read with section 34, IPC. Both the substantive sentences shall run concurrently.Order Accordingly. *******