R. K. SAXENA, J. Achal Behari and Awadh Behari, appellants, are real brothers They reside in village Padumpur, within Police Circle Meerganj, district Jaunpur. Suraj Bali, who indisputably, died of violance on the 2nd of June, 1978, was also a resident of that village This is also not disputed that Suraj Bali had been assaulted by lathi on the morning of the said date, as a consequence whereof his life ebbed out two hours there after. These appellants are said to be responsible for causing injuries at about 7 a. m. on that date near a pokhra in the vacant field of Krishnanand Tewari, which is at a distance of about 1 1/2 furlongs from the house of Suraj Bali towards south-east. A report of this incident was allegedly made at the police station at 11. 30 a. m. by Rajendra Prasad, real nephew of the deceased. The names of these appel lants figure as assailants in the report. The crime was registered and after usual investigation, they were charge- sheeted as a consequence where of the case was committed to the Court of Session. They were tried for committing the murder of Suraj Bali on the said date, time and place an oifence punishable under Section 302/34 of the Indian Penal Code (hereinafter referered to as the Code ). . Accepting the testimony of Rajendra Prasad and Vijai, respectively, P. Ws. 1 and 4, who gave an ocular account of the incident, the learned Sessions Judge, Jaunpur, concluded that each appellant had used lathi in inflicting injuries on the person of Suraj Bali, whose death was homicidal. In his opinion, the case did not fall with in the ambit of Section 302 of the Code. He was of the view that the provisions of Section 304 Part II read with Section 34 of the Code were attracted and, therefore, he acquitted each appellant on the charge of murder instead, convicted him under the said section with a sentence of rigorous imprisonment for a period of live years. 2. Aggrieved by this decision dated the 30th of April, 1979, of Sessions Trial No. 205 of 1978 : State v. Achal Behari and Avadh Behari, both the accused have preferred this appeal. 3. I have heard the learned counsel for the appellants, the learned Additional Public Prosecutor and have carefully considered the points convassed before me. 2. Aggrieved by this decision dated the 30th of April, 1979, of Sessions Trial No. 205 of 1978 : State v. Achal Behari and Avadh Behari, both the accused have preferred this appeal. 3. I have heard the learned counsel for the appellants, the learned Additional Public Prosecutor and have carefully considered the points convassed before me. The post-mortem examination of Suraj Bali proved by the doctor concerned showed that he had received two lacerated wounds five contusions and three abrasions in all 13 external injuries, out of which the injury noted as injury No. 4, being reproduced below, was sufficient in the ordinary course of nature to cause death and the death ensued : 4. Contusion 10 em. x 6 cm. on left side temporal region of scalp just above ear. " There was a depressed fracture of temporal and linear fracture of occipital bone beneath this injury membrane was also found ruptured under this injury. 4. The doctor had further detected fracture of four ribs of left side. His opinion that the death occurred due to injury No. 4 is not open to doubt or suspicion and is free from any blemish. The death of Suraj Bali was, therefore, homicidal. This part of the prosecution case and finding of the court below were not assailed before me on behalf of the appellants. 5. The learned trial judge has accepted the sworn testimony of a near relation of the deceased and a resident of the same village. Both have given cogent reasons for being near the place of incident at the relevant time. It was half-heartedly argued on behalf of the appellants that the first witness is a relation of the deceased and, therefore, his evidence be not attached import ance. The learned trial Judge has given sound reasons for rejecting this con tention and I am in perfect agreement with him on the point; merely because a relation has come forward to make a deposition, his evidence cannot be stamped as untrue and false. The learned trial Judge has given sound reasons for rejecting this con tention and I am in perfect agreement with him on the point; merely because a relation has come forward to make a deposition, his evidence cannot be stamped as untrue and false. It is noteworthy that Abadi of the village is about a furlong and It is in the statement of even the witness, Durga Prasad, P. W. 2, who has not supported assault part of the prosecution version, that he heard cries and shouts from Abadi at about 7-8 a. m. to the effect that Suraj Bali had been murdere d and then he went to that place. The defence did not cross-examine him o n that point. The occurrence had taken place in the month of June. The place was visible from the abadi. It cannot be conceived that Suraj Bali was fatally wounded at a time when it was dark and he was found in an injured condition about 3 hours after the incident. The shouts and cries of Suraj Bali on receiving lathi, blows must have, in all probability, attracted persons of the village and, therefore, it is idle to suggest, that the assault was made at a time when it was dark and the assailan escaped under the cover of darkness. The learned trial Judge has rightly concluded that the time and place of incident have been correctly given by the prose cution and the witnesses. He repelled the contention that there has been a delay in making the report. The reasons given therefor do not suffer from any infirmity. The report makes the appellants responsible for the alleged assault and its contents corroborate the statement of the informant, Rajendra Prasad, P. W. 1, on relevant and material points. 6. There was an agreement that the prosecution version that there was some altercation between the appellants and deceased about an hour before the incident at a place where they had gone in connection with a condolence is not substantiated by any legal evidence. Be that as it may, the prosecution version on the relevant and material points referred to above is not a fabrica ted one. Be that as it may, the prosecution version on the relevant and material points referred to above is not a fabrica ted one. True, cases are not wanting where persons clutch at the commission of Crime as an opportunity to falsely implicate persons with whom there is bitter animosity, but this possibility is completely ruled out in the instant case because, admittedly, there was no enmity, of any nature, whatsoever, between the deceased and the appellants from before. This fact has been observed by the learned trial Judge also who further remarked that the whole incident was not a preplanned one. 7. For these reasons, the conclusions of the learned trial Judge that the jippellants made an assault on Suraj Bali at about 7 a. m. on the 2nd of June of 1978 at the place referred to above, as a consequence whereof Suraj Bali suffered injuries out of which one proved fatal and he died about two hours after the incident, are upheld. 8. A question that arises for determination is as to whether the case falls with in the ambit of the provisions of Section 304 Part II of the Code, may be recalled that there was no intention to kill Suraj Bali ; the assault was not made with that intention. If we ignore the abrasions which could not be the result of assault by a lathi in view of their dimensions noted in the post-mortem report, only 7 blows were delivered by two persons. Keeping in view the back-ground in which the assault was made, it cannot be reasonably inferred that the act was done with the intention of causing such bodily injury as the offenders knew to be likely to cause death of Suraj Bali. There fore, the matter goes out of the ambit of II clause of Section 300 also. 9. Then conies the clause 3rdly of the said section. An injury was caused on head which was sufficient in the ordinary course of nature to cause death. The subjective and objective requirements of this clause are, thus, found and established but we do not know as to who is the author of this injury. It is well settled that the responsibility cannot be vicariously extended to other assailant. An injury was caused on head which was sufficient in the ordinary course of nature to cause death. The subjective and objective requirements of this clause are, thus, found and established but we do not know as to who is the author of this injury. It is well settled that the responsibility cannot be vicariously extended to other assailant. Therefore the conclusion of the trial Court that there was a common intention to cause a fatal injury was a result of which the death ensued, does not find support from the material on report. I am of the opinion that there was no common intention to cause fatal injury on the head region and, therefore, the provisions of Section 34 of the Code cannot be applied Once we arrive at this conclusion, the conviction recorded with the aid of Section 34 can be safely held to be bad in law and is liable to be set aside. I have thus shown that it is not a case of culpable homicide not amounting to murder and, therefore, Section 304 of the Code also does not apply. But, from the fact that each assailant used lathi in inflicting injuries, the knowledge that grievous injury could be accused can be legally attributed to each participant I conclude that the case tails with in the purview of section, 325/34 of the Code and each accused has committed an offence punishable under this section. 10. Now comes the question as to what the punishment be inflicted under the said count. "1 hese circumstances call for a lenient view. There was no enmity between the assailants and the deceased. The assault was not a pre meditated one. It was preceded by exchange of words in which tempers rose and 7 blows by two persons were given. About 12 years have passed since this episode. One of the assailants, namely, Achal Behari has remained in jail for about a year in this crime. His younger brother, Awadh Behari has remained in jail for about more than two months. The appellants have settled down to their normal avocation and it would not be just and proper to send them to jail, again. Awadh Behari can further be punished by imposing fine which is fixed at Rs. 500. 11. His younger brother, Awadh Behari has remained in jail for about more than two months. The appellants have settled down to their normal avocation and it would not be just and proper to send them to jail, again. Awadh Behari can further be punished by imposing fine which is fixed at Rs. 500. 11. In the result, the appeal is allowed in part; the conviction of each appellant under Section 304 Part 11/34 of the Code and the sentence awarded to each of them are set aside instead, each is convicted under Section 325/34 of the Code and it is directed that sentence of imprisonment served by each of them in this crime is sufficient, so far as imprisonment is concerned. Awadh Behari is further sentenced to a fine of Rs. 500. In default of payment of fine within three months of this order, he shall undergo rigorous imprisonment for a period of three months. The appeal is disposed of accordingly. Appeal partly allowed. .