JUDGMENT 1. 1. This appeal is directed against the judgment of the learned Sessions Judge, Pali dated 19.9.1984, whereby the learned Sessions Judge has held the accused appellants Ghevaria, Pema, Bhudia, Bhakaria, Meria and Mangiva guilty of the offence under section 302 read with 149 & 1471.P.C. and sentenced each one of them to life imprisonment for the offence under section 302/149 I.P.C. and for the offence under section 1471.P.C. No separate sentence has been recorded because the accused persons have already remained in jail for more than six months and two accused persons Amana and Binjiya have been acquitted by giving them the benefit of doubt. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that on 1.4.1983 at about 5 p.m. PW 3 Shaitana lodged an oral report at Police Station, Sojat City. On this information a F.I.R. (Ex.P. 6) was registered by Mohan Lal, S.H.O., P.S. Sojat City, wherein it was reported that on that day PW 3 Shaitana and his brother PW 4 Jeeva were grazing their goat and sheep- herd in the "Jav" of Radha Krishan Brahmin from where at a distance of 100 ft. in the 'Jav7 of Mangilal Ji Brahmin, Ghevaria son of Bhopal Raika resident of Nimbli Nadi, was also grazing his sheep & goat herd. At about 3 p.m. accused Ghevaria, Meria sons of Sardara, Bhudia son of Shiyji, Pema and Bhakariya sons of Magi, Mangla son of Vena all Raikas by caste and residents of Nimbli Nadi all went to Amana and Binjiya, who were also grazing their goat and sheep herd in the nearby fields and after staying with them for 5 minutes, all the eight persons came towards Ghevaria deceased. They were all armed with lathies and they started inflicting lathi blows to Ghevaria and when Shaitana and Jeeva tried to intervene they were threatened with death by Amana and Binjiya, who also ran towards them and thereupon for saving their lives they ran away from the place of occurrence and came to Dola Nadi. These two accused persons ran after them upto 3-4 fields and thereafter they went to their house. These two accused persons ran after them upto 3-4 fields and thereafter they went to their house. After 5-10 minutes the police came there in a jeep and inquired from them as to whether they have seen Ghevaria, Bhakariya, Mangiya, Bhudia, Pema because they have killed Goparam Raika, whereupon he informed them that they have seen them inflicting injuries to Ghevaria. They were then asked to point out the place where Ghevaria was being beaten. They showed to the police the place where Ghevariya was lying injured. Shaitana went and reported the matter to the police. Ghevariya was shifted to the Hospital at Sojat where he succumbed to his injuries. His post-mortem examination (Ex.P. 10) was got conducted by Dr. J.S. Bhandari. After usual investigation the case against all the eight accused persons was challaned in the court of learned Munsif and Judicial Magistrate, Sojat City, wherefrom it was committed for trial to the court of learned Sessions Judge, Pali, who after holding the trial convicted and sentenced the accused appellants as aforesaid. Hence this appeal. 3. The State has filed a leave to appeal against the acquittal of Amana and Binjiya, but the same has been rejected. Be that it may, we have heard Mr. M.L. Garg appearing for the appellants and Mr. C.R. Jhakhar, Public Prosecutor appearing for the State and have critically gone through the record of the case. 4. In this case the occurrence is not disputed by Mr. M.L. Garg meaning thereby that he does not dispute that the injuries to deceased Ghevariya were inflicted by these six accused appellants, but he has submitted that these injuries have been inflicted on the non-vital parts of the deceased's dead body. No injury was inflicted by the accused appellants either on the head, chest or other vital parts of the body. Rather no grievous injuries have been received by the deceased on his head, chest or any other vital part of the body and, therefore, the case against the accused appellants does not travel beyond section 304 Part II, I.P.C. 5. It may be stated here that accused appellant Ghevariya has died during the pendency of the appeal and, therefore, his appeal has abated and so far as other appellants Pema, Bhudia, Bhakaria, Meria and Mangia are concerned, we have considered the submissions of Mr. M.L. Garg, which were stoutly opposed by Mr. CR. It may be stated here that accused appellant Ghevariya has died during the pendency of the appeal and, therefore, his appeal has abated and so far as other appellants Pema, Bhudia, Bhakaria, Meria and Mangia are concerned, we have considered the submissions of Mr. M.L. Garg, which were stoutly opposed by Mr. CR. Jhakhar the learned Public Prosecutor. He has submitted that these accused appellants were determined to kill Ghevaria and earlier they had killed Gopa Ram in which incident Amana and Binjiya did not participate and thereafter they came near the place, where Ghevariya was grazing his sheep herd. First they talked with Amana and Binjiya, and thereafter they all (including Amana and Binjiya) went to Ghevariya and inflicted injuries to him and when Shaitana and Jeeva tried to intemeve, Amana and Binjiya ran after them and, therefore, simply because no injuries on the vital parts of the Ghevariya were caused, it does not mean that the accused persons did not have any common intention to kill Shri Ghevariya. According to Mr. C.R. Jhakhar, Dr. Jitendra Raj Bhandari has stated that these injuries which have been received by the deceased were ante mortem and have been caused by blunt weapons and all the injuries cumulatively were sufficient in the ordinary course of nature to cause the death of the deceased and, therefore, the learned Sessions Judge has rightly held the accused appellants guilty of the offence under section 302 read with 1491.P.C. because the accused persons came armed with a common object to kill Ghevariya deceased and, therefore, offence under section 1471.P.C. is also made out against them. 6. We have considered the rival submissions made at the Bar and have critically gone through the record of the trial court. Shri Ghevariya received the following six injuries:- 1. Lacerated wound 1.5 cm. x 1.0 cm. x 1.0 cm. on posteriolateral aspect of left arm - lower l/3rd part. 2. Lacerated wound 1 cm. x 1 cm. x 1 cm. on Right arm posteriolateral aspect lower l/3rd part. 3. Lacerated wound 1 cm. x 1 cm. x 1 cm. on Right forearm posterior aspect middle l/3rd portion. 4. Three lacerated wounds 2 cm. x 1 cm. x 1 cm., 2 cm. x 1 cm. x 1 cm., 1.5 cm. x 1 cm. x 1 cm. on anterior aspect of left leg-upper ⅔rd. 5. Bruise 6 cm. x 3 cm. Lacerated wound 1 cm. x 1 cm. x 1 cm. on Right forearm posterior aspect middle l/3rd portion. 4. Three lacerated wounds 2 cm. x 1 cm. x 1 cm., 2 cm. x 1 cm. x 1 cm., 1.5 cm. x 1 cm. x 1 cm. on anterior aspect of left leg-upper ⅔rd. 5. Bruise 6 cm. x 3 cm. on Right thigh middle ⅔rd lateral aspect. 6. Multiple Bruises all over the Back. It may be stated here that none of these injuries have been caused either on the head or the chest and no vital organ of the body of the deceased has been injured or fractured. Only left arm, right arm and right femur of the right thigh have been fractured, which, of course, are non-vital parts of the body of the deceased, it may be true that these accused persons might have killed Gopa Ram, but that is an independent incident and it has nothing to do with the killing of Ghevariya. The accused persons were armed with lathies and of course they have conjointly assaulted Ghevariya and have inflicted injuries to him with their lathies, but their intention has to be judged from the effect of their blows. The accused persons assailed non-vital parts of the body of the deceased by landing lathi blows and under these circumstances, it cannot be said that they intended to kill him or intended to cause injuries to which were likely to cause his death. 7. Keeping in view the nature of the injuries, the parts of the body assailed and the internal effect of the injuries, we are convinced that the accused appellants can be safely credited with the knowledge that the injuries inflicted by them were likely to cause death and, therefore, we are inclined to accept the submission of Shri M.L. Garg that the case does not travel beyond section 304 Part II I.P.C. Accordingly the appeal partly succeeds. The conviction of the accused appellants recorded by the trial Judge under section 302 read with 149 I.P.C. cannot be sustained and instead the accused appellants have to be held guilty for the offence under section 147 and 304 Part II read with 149 1.P.C. The common object to cause death stands fully established in this case because they came armed and conjointly attacked Ghevariya deceased and, therefore, keeping in view all the facts and circumstances of the case, the ends of justice would be met if the accused appellants are sentenced to five years rigorous imprisonment together with a fine of Rs. 200/- each for the aforesaid offence and in default of payment of fine they will further undergo one month's rigorous imprisonment for the offence under section 304 Part II read with 149 I.P.C. So far as offence under section 147 I.P.C. is concerned although the accused have been convicted for the said offence, but no separate sentence has been recorded against them, but we are inclined to sentence them for the offence under section 1471.P.C. to six months rigorous imprisonment. The substantive sentences shall rim concurrently. 8. In the result the appeal partly succeeds. The conviction of the accused appellants Pema, Bhudia, Bhakaria, Meria and Mangia recorded by the learned Sessions Judge under section 147 I.P.C. is maintained. Their conviction under section 302 read with 149 I.P.C. is set aside and instead they are held guilty for the offence under section 304 Part 13 read with 1491.P.C. and each one of them is sentenced to five years rigorous imprisonment together with a fine of Rs. 200/- and in default of payment of this amount of fine each one of them shall further undergo one month's rigorous imprisonment. For the offence under section 1471.P.C. they are sentenced to six months' rigorous imprisonment each. All the substantive sentences shall run concurrently. The Jail authorities be informed of the result of the appeal for execution as all the accused are in jail. So far as accused appellant Ghewaria is concerned his appeal has abated, because he has expired during the pendency of the appeal. *******