Judgment M. R. CALLA, J. ( 1 ) ACCUSED appellants Yakoob sb Ibrahim and Bhiya alias Wahid s/o Ismail Khan have been convicted has u/s. 302 IPC read with section 34 I. P. C. by the learned Sessions Judge, Tonk, under the judgment dated 19. 11. 1990 and for the said offence, each of them has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine, to undergo further simple imprisonment for 15 days, each. ( 2 ) THERE is no dispute that there was deep rooted enmity in between Ramjani Khan (deceased) and few others from the one side and the accused persons on the other side. As per the prosecution case, on 23. 8. 1989, Ramjani (deceased) was at his house in village Sonwa, where he had come about 4-5 days ago because earlier, he was living in Tonk. At about 9 a. m. in the morning, it is alleged that the two accused appellants along with others came armed and attacked Ramjani who made his escape and was followed by the two accused appellants. No sooner Ramjani reached the Panchayat Chabutra, the accused persons encircled him and started giving beating to him and caused injuries by sharp edged weapon, as a result of which he fell on the ground. A report of this incident was lodged by Madan Lal son of Bakhtawar Lal Ojha (P. W. 1) vide Ex. P1, at Police Station Mehand was (Tonk) where a case was registered u/s. 302 I. P. C. Ramjani died as a result of the injuries and Dr. Bhikhar Chand Jam, (P. W. 20) conducted the autopsy of the dead-body on 23. 8. 1989. On examination of the dead-body, he found the following external injuries:1. Incised wound 6"x1/2x1" left arm near shoulder. 2. Incised wound 3"x1"x2" left hand laterally cutting 4th and 5th ficta carpal bone; 3. Cut thumb of left hand attached with tag of skin only. 4. There is complete cut of right leg above ankle joint attached with skin only; 5. Incised would 4 x 1/4 x skin deep on right scapular region. 6. Incised wound 4"x1x bone deep, left knee patella cut. In the opinion of the doctor, the deceased died because of shock and haemorrhage due to various wounds and fractures. 4. There is complete cut of right leg above ankle joint attached with skin only; 5. Incised would 4 x 1/4 x skin deep on right scapular region. 6. Incised wound 4"x1x bone deep, left knee patella cut. In the opinion of the doctor, the deceased died because of shock and haemorrhage due to various wounds and fractures. ( 3 ) AFTER investigation, a charge-sheet was filed and after recording the prosecution evidence, be accused persons were examined u/s. 313 Cr. P. C. to explain the circumstances. They submitted 1 bare plea of denial and came out with the case bat they have been falsely implicated in the case earned Sessions Judge under his judgment, convicted and sentenced them as aforesaid. ( 4 ) WE have heard learned counsel for the accused appellants and the learned Addi. Public prosecutor. It was contended by the learned counsel for the accused appellants that the place of occurrence has been shifted and on the testimony of witnesses of the prosecution, no reliance can be placed. He further contends that from report (Ex. P1) it is clear that P. W. 1 Madan Lal was not an eye witness of the incident. He further contends that though P. W. 1 had named eight accused persons in Ex. P1 but the police did not file any challan against six persons and only the present appellants were charge-sheeted. Learned counsel for the appellants therefore contends that the accused appellants could not be convicted on the evidence of prosecution witnesses. He also contends that even assuming that the accused appellants are held to be the authors of the injuries by sharp edged weapon, to the deceased Ram jani, the offence will not travel beyond section 326 I. P. C. because no injury was caused on vital part, and that goes to show that the intention of the accused appellants was not to cause death or to cause such injury which was sufficient in the ordinary course of nature to cause death or to cause such injury which in the ordinary course of nature was likely to cause death. Learned counsel contends that merely because the death occurred on account of bleeding, the offence will not come u/s. 302 I. P. C. and as said above, it will come only u/s. 326 I. P. C. ( 5 ) THE case of the prosecution rests on the testimony of P. W. 1 Madan Lal, P. W. 2 Chutti, P. W. 4 Id Mohd. P. W. 5 Jumma, P. W. 7 Iqbal, P. W. 8 Prakash, P. W. 9 Gopal, P. W. 15 Prahl ad and P. W. 16 Manoj who have all professed to be eye witnesses of the occurrence. There were other persons who were examined as eye witnesses i. e. P. W. 13 Kanwari Lal, P. W. 14 Bansi and P. W. 17 Prabhu Lal but they have not supported the case of the prosecution and were declared hostile. ( 6 ) SO far as P. W. 1 Madan Lal Sharma is concerned, though the trial court has placed reliance on his statement and held him to be an eye-witness of the occurrence but for reasons to be stated hereinafter, we are of the opinion that he could not be relied upon to be an eye witness of the occurrence. A look at Ex. PT, lodged by P. W. 1 Madan Lal, will show that it has been stated therein that he was standing at 9 a. m. under a Bar tree and was talking to some persons. He heard that Ismail and others had reached the house of Ramjani (deceased) to kill him and Ramjani in order to make his escape, had run away from his house, raising an alarm and then he was beaten by the accused persons. It is also said in the report (Ex. P1) that hearing this (YEH SUNKAR) he went to the Panchayati Chabutara and it can therefore be said that in the F. I. R. it had been professed to be an eye witness but only on hearing from others, who have not been named, he had reached at the spot Even if his statement is excluded all that can be said is that the names of other accused persons who were not even challenged by the police after investigation, have no relevance because the F. I. R. was lodged by a person who was not an eye witness of the occurrence. ( 7 ) NEXT eye witness is P. W. 4 Id. Mohd. He deposed that he saw that both the accused appellants were given beating to Ramjani. He states that he was preparing to go to Tonk and was taking food when he heard the alarm which attracted him and then he had seen the occurrence. According to him, the accused appellants Nere giving beating to Ramjani near the Panchayati Chabutara. Yakub was armed with a Sword and Bhaiya was armed with a Gandasi. ( 8 ) P. W. 5 Jumma is another eye witness. He states that he was on the Kotwali Chabutara along with Gopal, Prabhu and Vinod and he heard the alarm coming from the side of Masjid that Bachao Bachao. He saw that Ramjani was coming running from that side and was making an attempt to ride the Chabutara through one of the ladders and then it was Bhaiya who gave a blow by Gandasi to Ramjani as a result of which Ramjani fell on the ground. He has further stated that the other accused was seen coming with a Sword, though name of the other accused has been given to be Ramjani but it will be seen that it is a typing mistake because the witnesses has stated in the court that PHIR MEIN VAHAN SE UTHKAR CHALA GAYA. JATE HUE MAINE DEKHA KI RAMJANI TAL WAR LEKHAR BHAGA HUA VAHANAARAHA THA. MAINENAHIN DEKHA YAKUB NE KYA KIYA. ( 9 ) P. W. 7 is Iqbal. According to his statement, it was 9 a. m. on the day of the occurrence, he was taking rest in his shop which is opposite Kotwali Choraha and at about 9 a. m. he heard alarm of Ramjani and when he went out of his shop, he saw that Ramjani was coming running and was being chased by Bhaiya accused. Ramjani went to the Chabutara where about 4-5 persons were there and Bhaiya gave a blow by Gandasi to Ramjani as a result of which his thumb of right hand was chopped off. Then after one minute, Yakub came with a naked sword. As soon as the witness came out he saw that Ramjani was lying with cut wounds. Ramjani went to the Chabutara where about 4-5 persons were there and Bhaiya gave a blow by Gandasi to Ramjani as a result of which his thumb of right hand was chopped off. Then after one minute, Yakub came with a naked sword. As soon as the witness came out he saw that Ramjani was lying with cut wounds. ( 10 ) P. W. 8 Prakash and P. W. 9 Gopal are persons, who as said earlier, were sitting on the Chabutara and both of them have stated that Bhaiya gave a blow by Gandasi to Ramjani as a result of which Ramjani fell on the ground and Yakub then came with a Sword and gave a blow with it on the right leg of Ram jani to chop it off. The blow landed above the knee. ( 11 ) P. W. 15 Prahlad and P. W. 16 Manoj both have corroborated the case of the prosecution and each of them has stated that Bhaiya had given a blow by Gandasi to Ramjani and after sometime, Yakub came with a Sword and gave a blow with it on the right leg of Ramjani and chopped off his leg. It will be seen from the evidence of above named witnesses that each of them has stated that the accused appellants were armed with sharp edged weapons - accused Bhaiya with an axe and Yakub with a Sword. Each of them gave blows with their respective weapons to the deceased Ramjani. These witnesses have stated that the occurrence was seen by them in the manner that Ramjani was running and accused Bhaiya armed with a Gandasi was following him and both the accused appellants killed Ramjani. ( 12 ) NOW we revert to the statement of P. W. 2 Chhuti wife of deceased Ramjani. She has stated that her husband was inside the house. She further states that there had been a dispute with the party of Ismail Khan who was one of the accused persons named in the F. I. R. but against whom no challan was filed by the police. She further stated that it was result of this dispute that her husband Ramjani was living in Tonk for the last about two years and he returned to the village hardly 4-5 days prior to the date of occurrence. She further stated that it was result of this dispute that her husband Ramjani was living in Tonk for the last about two years and he returned to the village hardly 4-5 days prior to the date of occurrence. According to her statement, at about 8 or 9 a. m. on the day of occurrence, she and her husband Ramjani were in the Pole of their house when accused appellants Yakub and Bhaiya came to the Pole. Yakub was armed with a sword and Bhaiya with a Gandasi. She has also stated that other accused persons i. e. Ismail and others (against whom charge sheet was not filed) said that Ramjani be killed. According to her statement her husband jumped the wall and ran for safety of his life and he was followed by the accused persons. She saw that her husband was lying on the Chabutara in injured condition. ( 13 ) FROM the evidence on record, the learned Sessions Judge had rightly concluded that the intention of the accused appellants was to commit murder of Ramjani (deceased ). ( 14 ) THE question is as to whether what offence is made out, whether it is u/s. 302 I. P. C. as held by the trial court or u/s. 326 I. P. C. as contended by the learned counsel for the appellants. We have already referred to the injuries on the dead body of the deceased Ramjani and at the cost of repetition, we may say that the deceased had as many as six injuries by sharp edged weapon and the injuries were to the extent that even the thumb of left hand was chopped of and there was a cut of right leg above ankle joint. According to the doctor, as said earlier, the deceased died because of shock and haemorrhage due to various bone fractures. It cannot be said that the deceased died as a result of professed bleeding of the injuries. Learned counsel contended that both the accused persons were armed with sharp edged weapon Yakub had a sword whereas Bhaiya had a Gandasi and therefore, if the intention of the accused petitioners had been to cause death of Ramjani, they could have hit at the vital part and could have caused more serious injury. Learned counsel contended that both the accused persons were armed with sharp edged weapon Yakub had a sword whereas Bhaiya had a Gandasi and therefore, if the intention of the accused petitioners had been to cause death of Ramjani, they could have hit at the vital part and could have caused more serious injury. The learned counsel contends that the very fact that injuries were caused on non vital parts goes to show that the intention of the accused appellants was not to cause death of Ramjani but was only to cause grievous injuries by sharp edged weapon and merely because, as a result of one of the injuries there was complete cut of right leg above the ankle joint and as a result of which there was profused bleeding and the deceased died, it cannot be said that the case in hand is covered by any of the clauses of section 302 I. P. C. Before an offence can be covered u/s. 302 I. P. C. , it must fall under any one of the clauses of section 300 I. P. C. Injury No. 1 as per the post mortem report alone appears to be injury which resulted in profused bleeding and caused death. Section 299 I. P. C. relates to culpable homicide and provides that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide and before an offence can fall under that section, it is necessary that one should cause death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the know ledge that he is likely by such act to cause death. Therefore, before an offence can be covered either u/s. 302 or 304, the offence must fall in the definition of section 299 I. P. C.- homicidal death. Therefore, before an offence can be covered either u/s. 302 or 304, the offence must fall in the definition of section 299 I. P. C.- homicidal death. In the present case the injuries were not caused on any vital part and as said earlier, by the nature of the injuries it cannot be said that they were caused with an intention to cause death or with the intention of causing such bodily injury which will be likely to cause death or with the intention of causing bodily injury which was sufficient in the ordinary course of nature to cause death. A look at the statement of Dr. Shikhar Chand Jam (P. W. 2) will show that it has been stated by him that the deceased died as a result of profused bleeding. It will further be seen that he has not stated that the injuries were sufficient in the ordinary course of nature to cause death and so he has said that the injury was likely to cause death; in his own words IN CHHOTON-KE SAMUHIK PRABHAV SE PRAKRITI KE SAMANYA KRIM MEIN MRITAK KI MRITYU KARIT HONA SAMBHA V THA. We are, therefore, of the opinion that the present case is not one of culpable homicide nor u/s. 302 I. P. C. but the offence made out against the appellants is u/s. 326 I. P. C. ( 15 ) WE, therefore, partly allow this appeal, set aside the judgment of the trial court and alter the conviction of the appellants Yakub and Bhaiya from section 302/34 I. P. C. to Section 326 I. P. C. and sentence each of them to undergo seven years R. I. and to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo three months simple imprisonment. Appeal allowed partly.