JUDGMENT 1. This appeal is directed against the judgment of the learned Sessions Judge, Jodhpur dated 21-6-1989 whereby the learned Sessions Judge has held the accused-appellants guilty for the offence under Section 302 IPC read with Section 34 IPC and have sentenced each one of them to life imprisonment together with a fine of Rs. 50/- and in default to undergo one month's R.I. 2. The facts necessary to be noticed for disposal of this appeal briefly stated are that on 12-12-1984 Goparam went to his field for cutting Pala. It is alleged that in the evening these four accused-appellants, viz., aoutha Ram, Misa Ram, Baksha Ram and Babura resident of village Borunda who were armed with lathis and Baksha Rain with an axe came to the field of Shri Goparam. Goparam ran away on seeing them. These persons went after him and availed him in the field of one Ugraram and inflicted as many as 72 injuries most of which were simple. There were two sharp weapon injuries also one of which was situated on the left post orical region of the ear. A clot of blood was also found there. Rest of the injuries were mostly on the non-vital parts. The prosecution has examined two eye witnesses, i.e., PW 6 Ghewar Ram and PW 9 Mangilal. Both of them have categorically stated that these injuries were inflicted by four persons. From the side of the prosecution PW 14 Dr. Bhagwati Prasad Sharma has been examined and he has stated that there was also fracture of parietal bone of the skull although the fracture was situated 5 cms. away from the oracular region. In the examination in chief the doctor has stated that the injury was sufficient in the ordinary course of nature to cause the death of the deceased whereas in cross-examination he has admitted that the injury was also likely to cause his death. This was the only injury which proved fatal. The case of the defence is that only Babura was involved in the incident. He has received a sharp weapon injury on head and it is in exercise of his right of self defence of the person that he has inflicted these injuries. His X-Ray report has been suppressed. 3. Mr. DS. This was the only injury which proved fatal. The case of the defence is that only Babura was involved in the incident. He has received a sharp weapon injury on head and it is in exercise of his right of self defence of the person that he has inflicted these injuries. His X-Ray report has been suppressed. 3. Mr. DS. Sisodia, appearing for the accused-appellants has submitted that the case does not travel beyond Section 304 part II IPC because injuries have been inflicted in exercise of right of private defence of person whereas contention of learned Public Prosecutor assisted by Shri J.S. Choudhary, counsel for the complainant that keeping in view the number or nature injuries that have been inflicted, the learned Sessions Judge was perfectly justified in holding the accused appellants guilty for the offence under Section 302 read with 34 IPC. 4. We have given our most earnest consideration to the rival submissions made at the bar and have carefully taken through the evidence in the case. After considering the judgment of the learned Sessions Judge as also the ocular and documentary evidence that has come on record, we are firmly of the view that the case does not travel beyond Section 304 part I IPC. Even if the case of the defence is not taken into consideration then too PW 14 Dr. Bhagwati Prasad Sharma has conceded in his cross- examination that these injuries were only likely to cause death. Keeping in view the fact that as many as 72 injuries have been inflicted to the deceased and such vital organ as head has also been chosen for infliction of the injuries, we are firmly of the view that the accused persons intended to cause such bodily injuries as were likely to cause the death of deceased Shri Gopa Ram. The deceased was alone and the accused persons were four in number and one of them was armed with an axe. If they intended to kill the deceased they would have used the axe for repeating the injuries and causing grievous injuries by it on vital parts of the body. Actually the fracture of left parietal bone is situated at a distance of 5 cms. from the oracular region. If they intended to kill the deceased they would have used the axe for repeating the injuries and causing grievous injuries by it on vital parts of the body. Actually the fracture of left parietal bone is situated at a distance of 5 cms. from the oracular region. Thus it cannot be said that it is a direct cause of the injury situated on oracular region and the other injuries that have been caused by the accused persons are only simple injuries and on non-vital parts of body. Therefore, taking an overall view of the entire evidence on record we are firmly of the view that the case does not travel beyond Section 304 part I IPC. The accused persons have already undergone more than 9 years imprisonment and, therefore, keeping in view these facts and circumstances we are further of the opinion that the ends of justice will be met if the accused persons are sentenced to the period of their custody. 5. In the result, the appeal partly succeeds. The conviction and sentence awarded against the accused-appellants under Section 302 IPC are set aside and the conviction is modified to one under Section 304 part I IPC and for that all the four accused- appellants are sentenced to the period of their custody. If the accused-appellants are not wanted in any other case they be set at liberty forthwith. 6. The appeal stands disposed of accordingly on merits.Appeal partly allowed. *******