JUDGMENT K.K. Birla, J. - Kedar Tiwari appellant has preferred this appeal against the order dated 31st January, 1979 passed by the 3rd Additional Sessions Judge, Varanasi convicting him under Section 304, Part (I), I.P.C. read with Section 34, I.P.C. and sentencing him to 7 years' R. I. 2. In brief, a case under Section 324, I.P.C. was pending against the present appellant and his brother-in-law Ramji Tiwari for causing injuries to Ram Bahal Tiwari. On 22nd December, 1976 at about 1.00 P.M. this appellant and Ramji Tiwari asked Ram Bahal to compromise that case. On his refusal they started assaulting him with Lathis causing injuries to him. Sri Ram Bahal in a injured condition was taken to the Police Station, Saidraja by his son Ram Bharose Tiwari (PW 1). At 6 30 P.M. on the same day a report was lodged by Ram Bahal for a non-cognizable offence under Section 323, I. P. C. The report was scribed by constable moharrir Bhola Nath Kunwar (PW 8) on the dictation of Sri Ram Bahal. In this report Sri Jamuna Tiwari and Sri Shiv Bharose Tiwari were named as the witnesses. The injured was medically examined by Dr. Y. N. Pandey (PW 2) at 7.30 P.m. on 22nd December, 1976 who found five injuries on his person. The injured died at about 12.00 in the same night, his post-mortem was conducted by Dr. B. B. Rai (PW 9) vide post-mortem report (Ex. Ka-11 ). Sri Ramji Tiwari was not tried as he had already absconded earlier and only Sri Kedar Tiwari was tried for the offence under Section 302/)4, I.P.C. 3. In support of its case the prosecution examined 9 witnesses. Sri Ram Bharose Tiwari PW 1) and Sri Shiv Bharose Tiwari (PW 4) were examined as eye-witnesses. 4. After considering the evidence on record and the circumstances of the case the learned Additional Sessions Judge found the case proved under Section 304, Part I, I.P.C. read with Section 34, I.P.C. and sentenced him as mentioned above. 5. Heard the learned counsel for the appellant and the learned Additional Government Advocate, and the complainants counsel. 6. It has been contended by the learned counsel for the appellant that the prosecution had failed to prove its case beyond reasonable doubt. He challenged the order of the trial Court on various grounds. 7. According to the post-mortem report the deceased had six injuries. 6. It has been contended by the learned counsel for the appellant that the prosecution had failed to prove its case beyond reasonable doubt. He challenged the order of the trial Court on various grounds. 7. According to the post-mortem report the deceased had six injuries. Injury No 1 is lacerated wound on the top of the hand. Injury No. 2 is the contused swelling on the head above the left ear. Dr. B. B. Rai (P. W. 9) had found the fracture under injury No. 2. 8. It is contended by the learned counsel for the appellant that considering the fracture on the head Sri Ram Bahal could not have dictated the F. I. R. and as he would not have been in a position to speak. In my opinion no premises for this inference have been made out. Clerk constable Bhola Nath Kunwar has clearly stated that he had scribed the F.I.R. (Ex. Ka. 9) as was told by Ram Bahal Tiwari to him and at that time Ram Bahal Tiwari was in senses when he had come. The very fact that the report has been written for the offence under Section 323, I.P.C. a non-cognizable offence shows that the condition of Sri Ram Bahal Tiwari was not so serious. Apart from this, Dr. B. B. Rai (PW 9) has also stated that an injured person could remain in proper senses even after 6 or 7 hours from the time of the infliction of the injuries. 9. The F.I.R. has been lodged at 6.30 p. m. The incident is alleged to have taken place at 1.00 p. m. Therefore, this contention on behalf of the appellant cannot be accepted and in my opinion it is made out that at the time when this report was lodged Sri Ram Bahal Tiwari was in a tit condition to lodge this report. 10. Sri Shiv Bharose Tiwari (PW 4, is named as a witness in this report. According to him on hearing the noise he rushed towards the spot and found that the appellant and Ramji were assaulting his father with Lathis towards North of the house of Mukalu. According to him his brother Ram Bharose Tiwari had also reached there. There does not appear to be any material inconsistency so far as the occurrence is concerned. Sri Ram Bharose Tiwari (PW 1) has also given the same version. 11. According to him his brother Ram Bharose Tiwari had also reached there. There does not appear to be any material inconsistency so far as the occurrence is concerned. Sri Ram Bharose Tiwari (PW 1) has also given the same version. 11. It has been strenuously urged on behalf of the appellant that this witness was not present at the spot because he has not been named as a witness in the F.I.R. (Ex. Ka-9). This is correct that in Ex. Ka-9 only two witnesses namely, Jamuna Tiwari and Ram Bharose Tiwari are named. This contention was raised before the learned Addl. Sessions Judge as well and according to him this was not at all material. No doubt the reasoning given by the learned Addl. Sessions Judge does not appear to be very convincing in this regard. However, from the injury report and the post-mortem report it is clear that the injured has received a number of injuries out of which two were on the head and one on the chest and on account of these injuries he died in the very night between 22nd/23rd December, 1976. The F.I.R. is for the minor offence under Section 323, I.P.C. Clerk constable Bhola Nath Kunwar (PW 3) has stated in his cross-examination that Ram Bahal had not given the name of Ram Bharose Tiwari as the eye-witness of the occurrence. Therefore, the contention on behalf of the appellant that his name was not given out by Ram Bahal at that time appears to be correct but considering the condition of the injured this omission in itself will not go to raise any reasonable doubt about the incident. It was also contended that this witness has been examined after 5 days of the occurrence. In this case in the first instance, a report was lodged for the offence under Section 323, I P. C. for which no investigation was necessary. The injured died in the night between 22nd/23rd December, 1976. The crime must have been converted thereafter into under Section 302, I.P.C. It should have taken time for the start of the investigation. The delay is not such as to raise any inference against the prosecution story. 12. Dr. Y. N. Pandey (PW 2) has suggested that these injuries could have been caused at about 9.00 or 10.00 a. m. This witness has given the reply in the affirmative. The delay is not such as to raise any inference against the prosecution story. 12. Dr. Y. N. Pandey (PW 2) has suggested that these injuries could have been caused at about 9.00 or 10.00 a. m. This witness has given the reply in the affirmative. As pointed out earlier after the occurrence and at the time of the lodging of the F.I.R. the injured was in senses. Therefore, there does not appear to be any reason why he should have left the real assailants and would have lodged this report falsely against the appellant Kedar Tiwari and Ramji. 13. In view of the above discussions, I am of the opinion that the prosecution case so far as the occurrence is concerned has been proved beyond reasonable doubt. As regards the conviction under Section 304, Part I, I.P.C. read with Section 34, I.P.C. it has been strenuously urged on behalf of the appellant that in the manner, the incident has taken place, it cannot be said that there was any common intention between the appellant and Ramji, that it is not in evidence who had caused the fatal blows or serious blows to the deceased and as such the appellant could not be convicted with the help of Section 34, I.P.C. No doubt, both the eye-witnesses have reached the spot after the assault had started. According to the F.I.R. and the statements of the deceased it is clear that they started assaulting him when he did not accede to their request for compromising the earlier case. Clearly enough there was no intention of murder at that time. It cannot be doubted that the common intention was at least to cause injuries to Sri Ram Bahal Tiwari and with that common intention they have assaulted him. In the circumstances of the case and in my opinion the common intention of causing such bodily injuries as were likely to cause death cannot be inferred and as such the conviction under Section 304, Part I, I.P.C. read with Section 34, I.P.C. cannot be maintained. The injured has received six injuries which includes the fractures on the head. The ribs of the chest were also found broken. It has also come in the evidence that appellant and Ramji had given Lathi blows with force. In the circumstances the common intention of causing grievous injuries can safely be interred. The injured has received six injuries which includes the fractures on the head. The ribs of the chest were also found broken. It has also come in the evidence that appellant and Ramji had given Lathi blows with force. In the circumstances the common intention of causing grievous injuries can safely be interred. Therefore, the proper offence made out is under Section 325/34, I.P.C. 14. Considering the circumstances of the case the rigorous imprisonment for 3 years will be adequate punishment. In the result, the appeal is partly allowed. The appellant is acquitted of the offence under Section 304, Part I, I.P.C. read with Section 34, I.P.C. He is, however, convicted under Section 325, I.P.C. read with Section 34, I.P.C. and is sentenced to 3 years' rigorous imprisonment. He is on bail. His bail bonds are cancelled. He shall be taken into custody by the C. J. M. Varanasi to serve out the sentence passed against him. The compliance report shall be submitted by the C. J. M. Varanasi to this Court within 3 months from today.