JUDGMENT (ORAL) Shah, J. - Original accused Nos. 1,2 and 3 who have been convicted of the offences punishable under section 302 r/w 34 of I.P.C. and sentenced to life imprisonment in Sessions Case No. 187 of 1989 on the file of the learned Additional Sessions Judge, Dhule have preferred these three appeals to challenge the orders of their conviction and sentence passed against them. 2. Briefly stated the facts giving rise to the three appeals are as under: All the accused persons are alleged to have caused death of Gangaram on the night of 29.8.1989 at about 8.30 p.m. Complainant Sukram (P.W. 1) is the father-in-law of the accused No. 1 as his daughter Jijabai (P.W. 2) is married to accused No. 1. Accused No. 2 is the brother of accused No. 1. Accused No. 3 is the friend of Accused No. 1. Complainant Sukram resides at village Ghodade, Taluka Sakari, District Dhule. At the time of incident the said Sukram was working as a watchman in the orchard of Supadu Dawak Patil and he with his family members used to reside in a hut constructed in the said orchard. Deceased Gangaram also was working with Supadu Patil since about 6 months prior to the date of the incident and he also was residing in a hut adjacent to the hut of Sukram. It appears that the sons of deceased Gangaram were residing in the village separately. It appears that Jijabai (P.W. 2) who is the wife of accused No. 1, was previously married to one Dagadya. But as the said marriage did not prove successful, the same was dissolved and she got married to the accused No. 1. Her marriage with the accused No. 1 took place about 5-6 years before the date of incident. She was residing with accused No. 1 and her life with him was normal and they were on cordial terms. On 29.8.1989 there was Pola festival and, therefore, 2-3 days before 29.8.1989 Jijabai (P.W. 2) had gone to her father's house at Ghodade for the said Pola festival. It appears that accused No. 1 was not happy about the same. On 29.8.1989 Sukram along with his wife, daughter Jijabai and his son were sitting chitchatting in their hut. Deceased Gangaram, it appears, was also there at that time. It is the prosecution case that at about 8.30 p.m. accused Nos. It appears that accused No. 1 was not happy about the same. On 29.8.1989 Sukram along with his wife, daughter Jijabai and his son were sitting chitchatting in their hut. Deceased Gangaram, it appears, was also there at that time. It is the prosecution case that at about 8.30 p.m. accused Nos. 1,2 and 3 in a drunken state arrived at the hut of Sukram and the accused No. 1 asked Jijabai to accompany him at once. Jijabai as well as Sukram and his wife told the accused No. 1 that Jijabai would go to his house on the next day, but the accused No. 1 was adamant and he wanted Jijabai to accompany him immediately on that day itself When accused No. 1 noticed that Jijabai was not ready to accompany him, he is alleged to have caught her by her hair and dragged her out of the house. Thereafter, all the three accused are alleged to have started assaulting Sukram, his wife, son as well as Jijabai by fist blows and kicks. Deceased Gangaram tried to intervene, but he was also beaten by all the three accused. Sukram (P.W. 1), Jijabai (P.W. 2), wife of Sukram and his son noticing that the accused were more violent, ran towards the village and they are alleged to have informed about the incident to the police patil and the sarpanch as well as the sons of deceased Gangaram. The sons of Gangaram immediately came to the field and noticed that Gangaram was groaning and lying in the field. Deceased Gangaram was then lifted and taken to the cattle shed. Condition of Gangaram was precarious and he was complaining of severe lain in his chest and stomach. On inquiry deceased Gangaram is alleged to have disclosed his two sons that he was beaten by the three accused. Immediately, thereafter, deceased succumbed to his injuries. Immediately after the death of Gangaram, the villagers who had come along with the police patil are alleged to have gone to the police station and lodged the F.I.R. (Ex. 13). Offence under section 302 of I.P .C. came to be registered and the police arrived at the scene of offence. Necessary inquest panchanama and the panchanama of the scene of offence were prepared. 13). Offence under section 302 of I.P .C. came to be registered and the police arrived at the scene of offence. Necessary inquest panchanama and the panchanama of the scene of offence were prepared. Dead body of deceased Gangaram was sent to the Primary Health Centre, Sakri for necessary post monem examination and on completion of investigation all the three accused were charge sheeted. On committal of the case to the Sessions Court, the three accused were tried before the learned Additional Sessions Judge and on the strength of the evidence led before him, he found that the prosecution has proved that the accused Nos. 1,2 and 3 in furtherance of their common intention caused death of Gangaram in the field of Supadu Patil On 29.8.1989 at village Ghodade at about 8.30 p.m. and that they were guilty of the offence punishable under section 302 r/w of 34 of I.P .C. It appears that the three accused were also charged with the offence under sections 323 and 504 of I.P.C. for causing hurt by beating Sukram, Jijabai, Tanku and Bhatu and also abusing them. The learned Additional Sessions Judge however found that the prosecution had failed to prove that the accused Nos. 1 2 and 3 had committed the said offence under sections 323 and 504 of I.P.C. The learned Additional Sessions Judge convicted the accused Nos. 1,2 and 3 of the offence punishable under section 302 r/w 34 of I.P.C. and sentenced each of them to imprisonment for life. Being aggrieved by the said order of conviction and sentence, the three accused have preferred three separate appeals. As all the three appeals arise out of the same incident and the judgment, they are being decided together and are being disposed of by a common judgment. 3. Prosecution in order to prove the guilt of the three accused examined Sukram (P.W. 1), Jijabai (P.W. 2), Gulab, son of deceased Gangaram (P.W. 3), Pandit, son of deceased Gangaram (P.W. 4), Babulal Patil, the panch witness (P.W. 6), Dr. Patil (P.W. 8), Head Constable Sadashiv Nikalje (P.W. 7) and the Investigation Officer PSI. Somvanshi (P.W. 9) 4. On the strength of the evidence of Dr. Patil (P.W. 8) and the post mortem notes (Ex. 25), it is clear that deceased Gangaram died of a homicidal death. Medical Officer Dr. Patil (P.W. 8), Head Constable Sadashiv Nikalje (P.W. 7) and the Investigation Officer PSI. Somvanshi (P.W. 9) 4. On the strength of the evidence of Dr. Patil (P.W. 8) and the post mortem notes (Ex. 25), it is clear that deceased Gangaram died of a homicidal death. Medical Officer Dr. Patil on external examination of the dead body of Gangaram found that there were two swelling injuries, one on the right side of the chest above and below the mammary gland and the other on the cheek. On palpation it was also noticed that fracture of 2nd, 3rd, 4th, 5th and 6th ribs on left side in mid clavical line had occurred. Similarly fracture of ribs at the sterno juncture on 1st to 7th on right side were also detected in external examination. On internal examination, it was noticed that there was clotted blood allover the chest muscles, fracture of left and right ribs as noticed on external examination, rupture of pleura liver and spleen were also noticed. Haemorrhage was also noticed inside the thorasic and abdominal cavities. Dr. Patil was of the opinion that all the external and internal injuries noticed by him were anti-mortem and that deceased Gangaram had died due to haemorrhagic shock due to rupture to vital organs like lungs, liver and spleen. The said medical evidence is not very seriously challenged before us. It appears that at the trial, the medical officer was suggested that if a person who is addicted to heavy drinking of liquor falls on the rough surface some injuries like one or two fractures and swelling are possible. The Medical Officer had accepted the said suggestion. However there is evidence of Sukram (P.W. 1) as well as Jijabai (P.W. 2) to show that accused Nos. 1,2 and 3 had assaulted deceased Gangaram on the night of the incident when deceased Gangaram tried to intervene in a quarrel ensued between Sukram, Jijabai and accused Nos. 1,2 and 3, and the accused No. 1 had tried to drag his wife Jijabai (P.W. 2) from the house of Sukram. The said evidence read together is rightly found to be sufficient to establish that deceased Gangaram died of a homicidal death. 5. As far as the incident is concerned, the prosecution has examined Sukram (P.W. 1) and Jijabai (P.W. 2) as eye witnesses to the incident. The said evidence read together is rightly found to be sufficient to establish that deceased Gangaram died of a homicidal death. 5. As far as the incident is concerned, the prosecution has examined Sukram (P.W. 1) and Jijabai (P.W. 2) as eye witnesses to the incident. According to their evidence, on the night of incident accused No. 1 along with accused Nos. 2 and 3 came to their house and asked Sukram as well as Jijabai that Jijabai should accompany the accused No. 1 immediately. Sukram as well as Jijabai tried to say that Jijabai would come on the next day after the festival of Pola, which was on that day itself, would be over. This appears to have enraged accused No. 1 and, therefore, he is alleged to have caught Jijabai by her hair and dragged her outside the house. Thereafter, accused Nos. 1,2 and 3 are alleged to have started assaulting Sukram, his wife, his son and Jijabai. Deceased Gangaram who was also present at the place of incident, tried to intervene and solve the quarrel and it is due to this that the three' accused are alleged to have assaulted him with kicks and fist blows. Accused No.3 is also alleged to have assaulted decreased Gangaram with a stick. Similarly there is also some evidence that accused Nos. 1, 2 and 3 had assaulted deceased Gangaram also with stones. However, Sukram (P.W. 1) only speaks about the assault by fist blows and kicks on deceased Gangaram. In his entire deposition he has not spoken about any assault with stick or stones. In the F.I.R. (Ex. 13) which is filed by him on 30.8.1989, he does not speak about any assault by stick or stones. As a matter of fact, in the F.I.R. he only speaks about the assault with fist blows. According to the F.I.R. lodged by Sukram, the accused Nos. 1,2 and3 are alleged to have beaten deceased Gangaram with fist blows. The fore, it appears that Sukram in his deposition before the Court has tried to improve and state that deceased Gangaram was also given Nows of kicks. Jijabai when she speaks of assault by accused No. 3 on deceased Gangaram by stick and accused Nos. and 2 by stones appears to have improved upon the stony. The fore, it appears that Sukram in his deposition before the Court has tried to improve and state that deceased Gangaram was also given Nows of kicks. Jijabai when she speaks of assault by accused No. 3 on deceased Gangaram by stick and accused Nos. and 2 by stones appears to have improved upon the stony. If any stick or stones were used in the assault, normally Sukram would have mentioned about the same in his F.I.R. Absence of the same in the F.I.R. leads us to believe that the entire assault on deceased Gahgaram died was with fist blows. However the said evidence of Sukram (P.W. 1) and Jijabai P.W. 2) is, sufficient to hold that deceased Gangaram was assaulted by the accused Nos. 1,2 and 3 and deceased Gangaram died as a result of injuries caused by them. In view of the evidence of Sukram and F.I.R. (Ex. 13) given by him, we find that the assault probably was only by fist blows. 6. The learned Sessions Judge has not accepted the evidence of Gulab (P.W. 3) and Pandit P.W. 4) the two sons of deceased Gangaram. Both these witnesses did not actually see the incident. They claim that their father had told that accused Nos. 1, 2 and 3 had beaten him by fist blows and kicks on his stomach. Therefore, at the best the prosecution can be said to have established that deceased Gangaram was assaulted by accused Nos. 1,2 and 3 by giving fist blows and kicks. It appears that deceased Gangaram used to take liquor as there is evidence of Jijabai P.W. 2) that her father and Gangaram had consumed liquor in that evening itself. Gangaram is a tribal and consumption of liquor is not a taboo in their society. One may even assume that it is a normal feature amongst the tribals. Due to this it is possible that deceased Gangaram was addicted to liquor and consumption of liquor would result in liver becoming weak. The Medical Officer has actually even admitted in his cross examination that fracture of ribs would also be possible even by a fall in case of persons who arc addicted to liquor. Taking into consideration the fact that deceased Gangaram was about 60 years of age, even by fist blows and kicks the injuries as were found in this case could be caused. Taking into consideration the fact that deceased Gangaram was about 60 years of age, even by fist blows and kicks the injuries as were found in this case could be caused. On behalf of the State, the learned Additional Public Prosecutor tried to contend that when the deceased was of 60 years age and the three accused were assaulting with kicks and fist blows, knowledge at least could be attributed to them which would make the case fan within the 4th clause of Section 300 of I.P.C. and, therefore, on behalf of the State it is 'tried to be contended that the trial Court was right in holding that the offence committed by the three accused is of murder punishable under SectionJ02 of I.P.C. As against this, on behalf of the appellants-accused it is tried to be contended that if the assault is only by fist blows and kicks, it would not be proper to attribute the knowledge to three accused that they would cause injuries which were imminently dangerous, so as to, in all probability, cause death or injuries which were likely to result in death. It is contended that the external injuries also clearly indicate that no weapon was used at the time of the incident. It was contended that the intention could never be to cause death. There is no dispute that intention could not be attributed to the accused Nos. 1, 2 and 3 of causing death. Similarly it is also true that the knowledge requisite to bring the case within the 4th clause of section 300 of I.P.C. also cannot be attributed to the accused Nos. 1,2 and 3 when they had assaulted deceased Gangaram only with fist blows and kieks. Post mortem notes show that deceased Gangaram was of moderate built. Had he been emaciated or thin, then probably the things would have been different as at that time one could comend that an old person of 60 years who is thin and emaciated, if is assaulted by three persons even with kicks or fist blows, it would be possible to attribute knowledge as envisaged in 4th clause of section 300 of I.P.C. As stated earlier, deceased Gangatam 'Vas found to be of moderate built and, therefore, the contention tried to be raised cannot be applicable to the present case. In the result, we find that though the finding of the trial Court that accused Nos. 1, 2 arid 3 assaulted and caused injuries to deceased Gangaram which ,ultimately resulted in his death, is correct, it would not be possible to hold them guilty of the offence punishable under section 302 r/w 34 of I.P.C. The offence, in our view, would fall under section 304II r/w34 of the I.P.C. 7. In view of the above discussion, the appeal will have to be partly allowed. Hence the order. The appeal is partly allowed. The order of conviction of the appellants-accused Nos. 1,2 and 3 of the offence punishable under section 302 r/w 34 I.P.C. and the sentence awarded there under is set aside, and instead they are convicted of the offence punishable under-section 304-II r/w 34 I.P.C. and are sentenced to suffer R.I. for 5 years and to pay a fine of Rs. 500/- in default to suffer further R.I. for 6 months. Appeal partly allowed.