JUDGMENT 1. This appeal is directed against the judgment of the learned Additional Sessions Judge. Raisinghnagar dated 3.2.1992, whereby, the learned Judge has held the four accused appellants viz. Sine Khan, Wazir Khan, Balia and Sedukhan guilty of (he offence under Section 302, read with Section 34, IPC and sentenced each one of them to life imprisonment together with a fine of Rs. 200/- each and in default of payment of fine to further undergo three months' R.l. Learned Additional Sessions Judge also convicted accused-appellant Sine Khan for the offence under Section 323, IPC and cute need hint to suffer one year's R.l. All the substantive sentences have been ordered to run concurrently. 2. In the present case, the learned Additional Sessions Judge has acquitted accused-persons viz. Shakri, Bakri and Mst. Nisha of the offence under Section 302 read with Section 149, IPC and accused Sine Khan, Wazir Khan, Balia Khan, Sedukhan, Shakri, Bakri and Mst. Nisha of the offence under Section 148, IPC. 3. The facts necessary to be noticed for disposal of the present appeal, briefly slated, are that at about 12.20 p.m. on 10.12.89 Wazir Khan (deceased), Raje Khan (PW 5), Alikhan (PW 6), Shoukat Ali (PW 7) and Dadu Khan (PW 8) came from Chak 1 SJM, at Bus-stand Shekhra for going to Chhatargarh for attending a marriage. At the bus-stand, they were waiting for arrival of the bus. At about 1.00 or 1.15 p.m., they were taking tea at the hotel of Heeralal Choudhary. At that time, Sine Khan s/o Shakri, Balia Khan s/o Falkukhan, Syed Khan alias Sedukhan s/o Bagukhan, Wazir Khan s/o Gomukhan, Sakri and Bakri s/o Khanukhan came armed with lathis from 1 SIM with common intention to cause hurt. As soon as they reached there, accused Sine Khan challenged Wazir Khan that his brother had been killed by Wazir Khan, therefore, he will not allow him to go alive. He said that he will take revenge by killing Wazir Khan. It is also alleged that thereafter Sine Khan inflicted a lathi blow on the head of Wazir Khan. On receiving this blow, Wazir Khan ran away from the bus- stand towards opposite side of the road leaving behind his bag and turban. Unfortunately, he was encircled by the accused-persons, who felled him down. It is also alleged that thereafter Sine Khan inflicted a lathi blow on the head of Wazir Khan. On receiving this blow, Wazir Khan ran away from the bus- stand towards opposite side of the road leaving behind his bag and turban. Unfortunately, he was encircled by the accused-persons, who felled him down. Thereafter all of them gave beating to him with lathis and caused him injuries, on account of which, Wazir Khan died on the spot. Both Haider Ali and Shoukat Ali intervened, upon which, Sine Khan inflicted one lathi blow on the hand of Shoukat Ali. Thereafter, all the accused-persons ran away from the place of occurrence. 4. Haider Ali went to police station, Ghadsana and verbally informed about the incident. In pursuance of his information, the police reached on the spot and started investigation. 5. The police registered a case under Section 302, 147, 148, 149 and 323, IPC. The accused-persons were arrested. After usual investigation, police filed challan against the accused-persons, named-above, in the court of Munsif & Judicial Magistrate, Anoopgarh, who committed the case to the court of Additional Sessions Judge, Raisinghnagar for trial. 6. At the trial, the prosecution has examined as many as 15 witnesses but defence has not examined a single witness. After concluding the trial, learned Additional Sessions Judge convicted and sentenced the accused- appellants for the offences as stated above and hence this appeal. 7. We have heard Mr. M.L. Garg, learned counsel for the appellants and Mr. D.R. Bohra, learned Public Prosecutor for the State and have carefully gone through the record. 8. Mr. M.L. Garg, learned counsel for the appellants submitted that all the aecused-persons came on the spot with common intention to cause hurt but there was no common intention to kill Wazir Khan. It was only accused Sine Khan, who inflicted the injuries on the head of the deceased, on account of which, Wazir Khan died. According to the prosecution case, there was long enminy in the family of the accused Sine Khan and deceased W'azir Khan. The reason behind the enmity was that Ali brother of accused-appellant Sine Khan had been murdered by Wazir Khan. 9. PW 4 Haider Ali, who is the first informant in the case is also an eye-witness of the occurrence and he has turned hostile. However, he has stated that he along with Wazir Khan and Raje Khan etc. The reason behind the enmity was that Ali brother of accused-appellant Sine Khan had been murdered by Wazir Khan. 9. PW 4 Haider Ali, who is the first informant in the case is also an eye-witness of the occurrence and he has turned hostile. However, he has stated that he along with Wazir Khan and Raje Khan etc. went to the Bus-stand to attend the marriage in the family of Ali Khan. At the bus-stand, a dust-storm was there. They did take tea. Some altercation took place with Wazir Khan. But because of dust storm, he did not identify the assailants because their faces were covered with clothes and the assault took place on the other side of the road. He was declared hostile and was confronted with certain portions of the F.I.R. and the police statement. He stated that he did not give the statement to the police that all the accused- persons armed deadly weapons came at the place of occurrence with common intention. PW 2 is Ali Khan, who has also turned hostile. He has also stated that he along with Haider Ali, Raje Khan, Wazir Khan and Shoukat Ali were there at the bus-stand and they were enjoying tea. They were going to attend the marriage. PW 2 Ali Khan has stated in his statement that he has not seen the occurrence of beating which took place with Wazir Khan because he went to ease himself. He has also been confronted with certain portions of the police statement Ex. P/6. He has stated that he did not give any such statement to the police that accused Sine Khan challenged Wazir Khan because his brother Ali had been killed by him, therefore, he will not allow him to go alive. PW 5 Ali Khan has also stated that he did not state this fact to others. The same is the case of PW 6 Raje Khan, who has stated that although they were on the bus-stand and were taking tea an 1 at that time, some verbal altercation took place with Wazir Khan, he was unable to identify the accused-persons because they had covered their faces. This witness too, after he was declared hostile, was confronted with certain portions of his police statement but he has stated that he did not state these facts to the police. This witness too, after he was declared hostile, was confronted with certain portions of his police statement but he has stated that he did not state these facts to the police. He has however admitted that he was taking tea at the shop of Heeralal Choudhary. PW 9 Desh Raj Son of Heeralal Choudhary Tea Stall holder and PW 10 Heeralal himself, both of them have stated that Wazir Khan was killed but who killed him, they do not know. They have been declared hostile and in cross-examination, they resiled from their earlier statements given to the police. 10. The entire case hinges on the testimony of PW 7 Shoukat Ali, who is the injured witness and PW 8 Dadu Khan. Both of them have stated that they came to bus-stand alongwith Wazir Khan. There Wazir Khan, Sine Khan, Balia and Sedu Khan came and Sakri, Bakri and Nisha also came there but they came a little later. All the four accused- persons namely; Sine Khan, Balia, Wazir Khan and Sedukhan were armed with lathis. As soon as they arrived at the spot, accused Sine Khan told Wazir Khan (deceased) that today he will take revenge of his brother Ali's death and after telling this, he inflicted a lathi blow on the head of Wazir Khan. On receiving this injury, Wazir Khan injured ran away from the place of occurrence. He was followed by all the four accused-persons to a distance of about 100-150 feet. There they again encircled him and caused injuries to him. PW 7 Shoukat Ali tried to intervene but a blow was inflicted on his left hand by Sine Khan accused. The cause of incident is said to be murder of Sine Khan's brother Ali by deceased Wazir Khan. PW 6 Dadukhan has fully supported the testimony of PW 7 Shoukat Ali. PW 12 Dr. Deeparam found four injuries on the person of deceased Wazir Khan. Injuries No. 1, 2 and 3 were lacerated wounds and injury No. 4 was a bruise. Injury No. 2 was inflicted on left side of occipital region. Injury No 3 was inflicted on the right side of occipital region whereas Injury No. 4 was found on the left arm. These three injuries were simple in nature. Injuries No. 1, 2 and 3 were lacerated wounds and injury No. 4 was a bruise. Injury No. 2 was inflicted on left side of occipital region. Injury No 3 was inflicted on the right side of occipital region whereas Injury No. 4 was found on the left arm. These three injuries were simple in nature. Injury No. 1 which proved fatal, was a lacerated wound of size 3" x 3" x brain deep on the fronto-parietal area in sagital plane in mid-line on the left side, by which, left fronto-parietal bone was factured and brain matter was coming out from the wound. In the opinion of the doctor, this injury which resulted in laceration of brain was sufficient in the ordinary course of nature to cause death of Wazir Khan. It was caused by blunt weapon. He also proved the injury report of Shoukat Ali, who has received one injury on the left arm in its middle l/3rd portion of posterio-laterally which is simple in nature caused by blunt weapon. The injury report of Shoukat Ali is Ex. P/10 and post-mortem examination report of Wazir Khan is Ex. P/11. 11. It was contended by Mr. M.K. Garg, learned counsel for the appellants that it is alleged by two witnesses that Wazir Khan (deceased) after receiving first injury on his head, which was caused by accused Sine Khan, ran towards the opposite side of the road at a distance of about 100- 150 feet and it has been alleged that he was availed (assailed by) all the four accused-persons i.e. Sine Khan, Balia, Wazir Khan and Scdu Khan at that distance on the other side of the road. It is not known, out of these four accused- persons who inflicted these injuries. It was stated by him that PW 12 Dr. Deeparam has stated that injured could not run after receiving injury No. 1. It is not known, out of these four accused- persons who inflicted these injuries. It was stated by him that PW 12 Dr. Deeparam has stated that injured could not run after receiving injury No. 1. We are unable to accept this opinion of the doctor because firstly, it is in direct conflict with he eye-witnesses and secondly, it is but natural that if a man receives an injury and fears that others, who are armed with lathis will assault him, will certainly try to run for his life and, therefore evidence of the eye-witnesses has to be believed that Wazir Khan ran to a distance of 100-150 feet after receiving injury No. 1 at the hands of Wazir Khan on his head and then to avoid further assault by the accused- persons on his body. 12. It was also contended by Mr. M.K. Garg, learned counsel for the appellants that the accused-persons were armed with lathis only. It was only Sine Khan who gave exhortation and wielded the lathi on the head of Wazir Khan in order to take revenge of his brother's death because Wazir Khan had killed his brother Ali. No body- else spoke anything at that time. If the common intention of the accused-persons was to kill Wazir Khan, Wazir Khan had already fallen down after running and therefore, they could have caused much more harm to him because firstly he was injured and defenceless and secondly, he was unarmed and thirdly, nobody came to his rescue but out of four accused-persons who were armed, only three blows have been inflicted and those blows have only resulted in causing simple injuries. Thus, although there was common intention to beat Wazir Khan, there was no intention of the accused-persons to kill Wazir Khan. So far as other accused- persons are concerned, Mr. M.K. Garg, learned counsel for the appellants has further submitted that accused Sine Khan has inflicted only one blow on the -ad of the deceased. Although, it has proved fatal but for this act of the accused Sine Khan at best can be held guilty of the offence under Section 304 Part II, IPC for causing injury which was likely to cause death. 13. This submission of Mr. Garg is seriously opposed by Mr. D.R. Bohra, learned Public Prosecutor appearing on behalf of the State. Mr. 13. This submission of Mr. Garg is seriously opposed by Mr. D.R. Bohra, learned Public Prosecutor appearing on behalf of the State. Mr. Bohra submitted that these accused-persons came armed with lathis at the bus-stand to take revenge of the death of Sine Khan's brother and conjointly availed Wazir Khan and even after he ran away from the bus-stand. Sine Khan followed him and caused injury to him, and, therefore, learned Additional Sessions Judge has rightly been held guilty of the offence under Section 302/34, IPC. The injury was caused on a vital organ of the body i.e. head. The injury was intentional and not accidental. 14. We have given our most earnest consideration to the rival submissions made by the learned counsel of the parties at the bar. It is true that all these four accused-persons came to the bus-stand because they knew that these persons were going to Chhatargarh to attend the marriage but their common intention was only to give thrashing to Wazir Khan. Neither they were armed with deadly weapons nor they acted in a cruel manner so far as the other three accuscd-persons except Sine Khan is concerned. Sine Khan's brother Ali was killed by Wazir Khan. As soon as he saw him, it appears that his blood got boiled and inspite of the earlier compromise which was arrived at between the parties, he immediately on reaching the bus stand gave an exhortation and inflicted a lathi blow with a heavy hand on the head of Wazir Khan. This was done with a declaration that he will not be allowed to go alive today and he will avenge death of his brother Ali by killing Wazir Khan. After telling this, he inflicted blows on the most vital organ of the body i.e. Wazir Khan's head. The blow was so heavy that it has resulted in the fracture of parietal bone and frontal bone and dura matter arachnoid matter and pia matter were also lacerated. So much so, the brain matter came out of the brain. This injury as per the opinion of PW 12 Dr. Deeparam was sufficient in the ordinary course of nature to cause death of Wazir Khan and as such accused Sine Khan has, therefore, to be held guilty of the offence under section 302 IPC. So much so, the brain matter came out of the brain. This injury as per the opinion of PW 12 Dr. Deeparam was sufficient in the ordinary course of nature to cause death of Wazir Khan and as such accused Sine Khan has, therefore, to be held guilty of the offence under section 302 IPC. For causing simple injury to Shoukat Ali, who intervened and simple injuries to the deceased he has to be held guilty of the offence under section 323/34 IPC. So far as rest of the accused-persons are concerned, they have to be held guilty of the offence under Section 323/34 IPC because they did not nurture any common intention to kill Wazir Khan but their common intention was only to give beating and, therefore, their conviction under section 302 read with section 34 IPC has to be altered to one under Section 323 read with section 34, IPC. 15. In the result, the appeal partly succeeds. The conviction of accused Sine Khan recorded under Section 302/34 IPC is altered to one under Section 302 IPC. He is further held guilty of the offence under Section 323/34 IPC. As other injuries which were inflicted on the person of Wazir Khan (deceased) were inflicted by accuscd-persons in furtherance of their common intention to beat Wazir Khan and thus accused Sine Khan has to be held guilty of the aforesaid offence under Section 323/34, IPC.-All the three accused-persons viz. Wazir Khan, Balia and Sedukhan have been held guilty by the learned Additional Sessions Judge of the offence under Section 302/34, IPC that conviction has to be set aside and instead they are held guilty of the offence under Section 323/34, IPC for causing simple injuries to the deceased in furtherance of their common intention to beat him. 16. So far as accused Sir.c Khan is concerned, he is held guilty of the offence under Section 302 IPC and sentenced to life imprisonment, and to pay a fine of Rs. 100/-, in default of payment of fine, he will suffer further one month's S.l. For offence under Section 323/34, IPC., he is sentenced to one year's R.l. Both the substantive sentences shall run concurrently. 17. So far as the remaining three accused-appellants namely; Wazir Khan s/o Gammukhan, Balia and Sedukhan are concerned, for the offence under Section 323/34, IPC, they are sentenced to the period of their custody. *******