Judgment V. G. PALSHIKAR, J, J. ( 1 ) HIS appeal is directed against the order dated 3/07/1989, passed by the Addl. Sessions Judge (No. I), Sriganganagar, Camp at Karanpur, by which he convicted all the four accused persons of offence punishable under Section 302/34 of the Indian Penal Code and sentenced each of them to imprisonment for life and a fine of Rs. 500. 00. In default, six months rigorous imprisonment. ( 2 ) THE prosecution story, stated in brief, is that the deceased Kartar Singh accompanied by his son Mohan Singh and neigbour Nand Ram, at about 3. 00 p. m. went to the field of his deceased brother Guljar Singh which w as in occupation of the widow of Guljar Singh, Smt. Dalip Kaur, her sons who are minors and daughters who are married. It is alleged by the prosecution that Kartar Singh went to Dalip Kaur as he knew that her sons-in-law are with her and he suspected them of writing a false and defamatory letter about Kartar Singhs daughters. The letter, it is alleged, branded his daughters as prostitutes. On reaching the hut of Dalip Kaur, he asked the accused, i. e. Darshan Singh, Amrik Singh, and Vajir Singh as to why they are defaming his (Kartar Singhs) daughters. On which, Darshan Singh took his gun by the barrel and tried to hit Kartar Singh. But Kartar Singh caught hold of the gun at its butt. On this, Rano, w/o Darshan Singh, lifted a piece of wood and hit Kartar Singh on the head, as a result of which Kartar Singh fell on the ground and the gun held by him was released. Darshan Singh took gun by its barrel and hit two blows on the back of the deceased Kartar Singh by butt, as a result of which the butt of the gun broke. It is then alleged that Darshan Singh thereafter, lifted a Knife (kassi) and hit Kartar Singh on the head by that kassi. In the meantime, Vajir Singh, accused, went into the hut, brought a gandasi and hit Kartar Singh with gandasi and Amrik Singh took up a kasiya and hit Kartar Singh with that, as a result of which about 16 injuries were received by Kartar Singh and he died on the spot. First Information Report of this occurrence was lodged by his son Mohan Singh. First Information Report of this occurrence was lodged by his son Mohan Singh. After Investigation, the accused were charge-sheeted. ( 3 ) THE prosecution examined 8 witnesses and the defence examined one witness. On total appreciation of the oral and documentary evidence on record, the learned Additional Sessions Judge, came to the conclusion that all the accused persons are guilty of the offence punishable u/s. 304/34 of the Indian Penal Code and, therefore, proceeded to convict them as aforesaid. ( 4 ) IT is this order of conviction, which is impugned in this appeal by Shri M. K. Garg, learned counsel appearing on behalf of all the accused, who contended that the conviction of all the accused u/s. 302/34 IPC is unsustainable in law, as there is no evidence on record to prove that the accused persons had the common intention of voluntarily causing death of deceased Kartar Singh. In the absence of any such evidence, conviction u/s. 304/34 IPC is impermissible in law. The learned counsel, then submitted that even if the entire evidence of the prosecution is accepted, it is obvious that Kartar Singh had come to the hut of Dalip Kaur to seek explanation from the accused regarding their conduct and was admittedly in an aggressive mood and it was because of grave and sudden provocation caused by the deceased himself that the accused persons assaulted him. They never had the intention to kill him nor had the knowledge that the injuries that they may inflict will, in all probability, cause the death. They even did not have the knowledge that the injuries that they may cause, may result in death of the deceased. He, therefore, submitted that the conviction is unsustainable in law. ( 5 ) IT was then contended by the learned counsel that admittedly only one strike blow is attributed to accused Rano, w/o Darshan Singh and only two blows by the butt of the gun are attributed to Darshan Singh. Both the injuries cannot be even called grievous injuries. They were not sufficient, in the ordinary course of nature, to cause death and, therefore, conviction of accused Rano and accused Darshan Singh, is unsustainable. ( 6 ) IT was then contended by the learned counsel that Darshan Singh, admittedly, possessed a fire arm. Both the injuries cannot be even called grievous injuries. They were not sufficient, in the ordinary course of nature, to cause death and, therefore, conviction of accused Rano and accused Darshan Singh, is unsustainable. ( 6 ) IT was then contended by the learned counsel that Darshan Singh, admittedly, possessed a fire arm. It is stated in evidence by all the prosecution witnesses that he never used the fire-arm but used its butt to hit Kartar Singh. According to the learned counsel, had there been any intention on the part of Darshan Singh to kill the deceased Kartar Singh, he would simply shoot him to death. The deliberate non-use of the gun by Darshan Singh, is therefore, intrinsic evidence of the fact that Darshan Singh had no intention to commit murder or to cause such bodily injury as in all probability would result in death or is likely to cause death. He, therefore, claimed that in any event, Rano, w/o Darshan Singh and Darshan Singh, are liable to be acquitted of the offence u/s. 302/34 IPC. ( 7 ) THE learned counsel, after pointing out certain contradictions in the evidence of the witnesses, claimed that the evidence is not trustworthy and, therefore, all the accused persons should be acquitted. ( 8 ) WITH the assistance of the learned counsel for the accused and the learned Public Prosecutor, we have carefully scrutinised the evidence on record. The prosecution has examined eight witnesses in this case. Of the eight, three are eye witnesses, one is the Investigating Officer, two are Police Constables, one is the doctor and one is the Panch. The three eye witnesses gave a very good word picture of the assault on Kartar Singh, which resulted in his death. They corroborate each other on material particulars, as will be seen hereafter and we are convinced, beyond reasonable doubt, that accused Vajir Singh, and Amrik Singh have been rightly convicted of an offence u/s. 302/34 IPC as they were procuring sharp edged weapons and after Kartar Singh was rendered helpless, proceeded to assault him. However, we are unable to hold the conviction of Rano, w/o Darshan Singh as will be seen from analysis of the evidence. However, we are unable to hold the conviction of Rano, w/o Darshan Singh as will be seen from analysis of the evidence. It is true that Darshan Singh did not use the fire arm, namely, the gun but there is evidence on record to show that he also used the kassa which has been recovered subsequently at his instance. The complicity of Darshan Singh is not different from the other two accused. ( 9 ) P. W. 1 Dr. Ram Pratap is the doctor who conducted the post-mortem on the body of deceased Kartar Singh. He has described the several injuries caused to the deceased. He has described two injuries on the head of the deceased, one is 3" injury with the blunt object and another behind the left ear, which is an incised wound. These two wounds, thus, may be the injuries alleged to have been caused by Rano and Darshan Singh. The fact that Darshan Singh used a kassa, is evident from injury No. 3 which is an incised wound behind the left ear of the deceased and which has resulted in breaking of the parietal bone. It is a grievous injury on the vital part of the deceased. The doctor has opined that death was caused due to bleeding out of these several injuries. The evidence of the doctor, thus, provides material corroboration of the injuries caused to the deceased and also corroborates the oral testimony of the witness who described the manner in which the injuries were caused and the part on which it was caused. In our opinion, the oral evidence has a very valuable material corroboration from the medical evidence, which cannot be shaken in any manner. ( 10 ) P. W. 2 Rameshwar Dayal, is the Constable who took samples for analysis to the Forensic Laboratory, Jaipur. P. W. 3 is Dalip Kaur. The witness is the mother of accused Rano and mother-in-law of all the three other accused. Her evidence is very important. She has, in spite of close relationship, chosen to depose against her dear ones. Her testimony is sought to be shaken by allegations of illicit relationship with the deceased. Apart from the fact that she denied such suggestions, the very fact that she has chosen to give a correct version of the occurrence inspires confidence in her testimony. She has, in spite of close relationship, chosen to depose against her dear ones. Her testimony is sought to be shaken by allegations of illicit relationship with the deceased. Apart from the fact that she denied such suggestions, the very fact that she has chosen to give a correct version of the occurrence inspires confidence in her testimony. She has been duly corroborated by two other eye-witnesses on all material particulars and, there is, therefore, no reason to disbelieve this witness. She has stated that on the date of incidence, all the accused persons were present at her hut. They had come a day prior to the date of incidence. She then stated that her brother-in-law Kartar Singh, accompanied by his son Mohan Singh and Nandram, came to her field and hut. On reaching, Kartar Singh said to the accused Darshan Singh as to he has received a letter which alleges bad name to his daughters and he, thereafter saying so sat on the ground. It is then alleged by this witness that Darshan Singh, lifted his gun by the barrel and tried to hit Kartar Singh but Kartar Singh caught the gun by its butt, whereupon the accused Rano lifted a piece of wood lying by and hit Kartar Singh on the head, as a result of which he fell on the round. Then Darshan Singh again lifted the gun by the barrel and gave two blows by the butt of it to Kartar Singh in his back. So harsh was the blow that the butt of the gun broke. Then Darshan Singh lifted a kassa lying nearby and hit Kartar Singh on the head. She then proceeds to say that then Amrik Singh got a kassiya and Vajir Singh got a gandasi and both of them assaulted deceased Kartar Singh by those weapons. She has also stated that an attempt on the part of Mohan Singh and Nand Ram to save Kartar Singh, were thwarted by the accused. She has been subjected to detailed cross examination. In our opinion, there is nothing in the cross-examination to render this witness untrustworthy. ( 11 ) P. W. 4 Nanad Ram is the accompanying neighbour and an eye witness. He has stated that he accompanied Kartar Singh and Mohan Singh to the hut and field of Dalip Kaur, where Darshan Singh, Rano, Amrik Singh and Vajir Singh accused were present. ( 11 ) P. W. 4 Nanad Ram is the accompanying neighbour and an eye witness. He has stated that he accompanied Kartar Singh and Mohan Singh to the hut and field of Dalip Kaur, where Darshan Singh, Rano, Amrik Singh and Vajir Singh accused were present. On seeing them Darshan Singh asked Kartar Singh as to why he has come ? Kartar Singh replied that he has received a letter in relation to his daughters, on which Darshan Singh lifted the gun by its barrel and sought to hit Kartar Singh. But Kartar Singh caught the gun by its butt, on which Rano lifted a piece of wood and hit Kartar Singh on the head, as a result of which Kartar Singh fell and Darshan Singh got his gun released. Then Darshan Singh again lifted the gun by the barrel and hit Kartar Singh on the back twice, as a result of which the butt of the gun broke. Then Darshan Singh threw away the gun, lifted a kassa lying around and hit Kartar Singh on the head. The witness has then deposed that Vajir Singh ran and got a gandasi. Amrik Singh lifted a kasiya and both assaulted Kartar Singh. He has deposed that gandasi, kassa and kasiya were used from its sharp edge. He then stated that the efforts of himself-and Mohan Singh to save Kartar Singh were thwarted by the accused, who tried to assault them and they were required to ran away from the scene of occurrence. He then says that he came hack to his village and Mohan Singh went to lodge a report. It will thus be seen that, this witness, who is an independent witness, corroborated P. W. 3 Dalip Kaur on all material particulars. A scrutiny of cross-examination of these witnesses does not disclose any material omission or contradictions, relying which it can be said that the witness is not speaking the truth. We have no hesitation in accepting the entire testimony of this witness. ( 12 ) P. W. 5 is Mohan Singh, s/o deceased Kartar Singh. He is also an eye witness and has stated that he along with Nand Ram and Kartar Singh, went to the Field of Dalip Kaur, P. W. 3. There they were met by Darshan Singh and other accused persons. Darshan Singh had a 12 bore gun in his hand. He is also an eye witness and has stated that he along with Nand Ram and Kartar Singh, went to the Field of Dalip Kaur, P. W. 3. There they were met by Darshan Singh and other accused persons. Darshan Singh had a 12 bore gun in his hand. He asked Kartar Singh as to why he has come ? Kartar Singh told him of the letter and sat down. Then Darshan Singh lifted the gun by the barrel and tried to hit Kartar Singh by the butt of the gun. The butt of the gun was caught by the father of the witness and thereupon accused Rano lifted a piece of wood and hit the father of the witness on the head, as a result of which he fell down. The gun was released. Darshan Singh again lifted the gun and hit the accused in the back twice as a result of which the butt of the gun broke. Therefore, Darshan Singh threw away the gun lifted the kassa and again hit by its sharp edge to Kartar Singh on the head. Thereafter, Vajir Singh went into the house and brought a gandasi. Amrik Singh lifted the kasiya lying around and both of them assaulted the deceased by the sharp edged weapons. The witness has stated that the efforts on the part of Nand Ram and himself were thwarted by the accused. They were forced to run away from the scene of occurrence. Nand Ram went home. Witness Mohan Singh went to his house and informed his mother of the unfortunate incident and proceeded to Police Station to lodge the First Information Report. It will, thus, be seen that this eye witness also provide material corroboration to the other eye witness. His cross-examination is inconsequential. Thus, it will be seen that the total evidence on record, prove beyond reasonable doubt that the accused persons were guilty of assaulting the deceased. ( 13 ) A proper appreciation of this evidence would also reveal that accused Rano, w/o Darshan Singh, though has participated in the assault, has shown remarkable restrain and used force by hitting Kartar Singh on the head by a wooden piece only when he had caught hold of the gun belonging to Darshan Singh. It cannot be denied, therefore, that she might have done so with the object of helping her husband in getting his gun released. It cannot be denied, therefore, that she might have done so with the object of helping her husband in getting his gun released. She, certainly had no intention of causing any serious injury to Kartar Singh. She did not use the piece of wood again. She did not cause any injury to Kartar Singh thereafter and obviously was a mute witness to the further assault. In our opinion, in such circumstances, it cannot be held that she shared the common intention of causing homicidal death of Kartar Singh. The sequence of events, as has occurred, reveals that the intention to cause homicidal death of Kartar Singh came to the mind of the three other accused, only after Kartar Singh fell down to the ground and Darshan Singh lifted the kassa to give him the first injury by a weapon. It was then that accused Amrik Singh took up the kasiya, Vajir Singh got the gandasi and they began their assault jointly and severally. The evidence as revealed by the three eye witnesses, therefore, carries only to an inescapable conclusion which is of the guilt of the accused u/s. 302/34 of the Indian Penal Code. We find ourselves unable to accept the contention raised by the learned counsel for the accused appellants that no such intention was present. ( 14 ) THE oral evidence of the eye witnesses is further corroborated by the discovery made at the instance of accused Darshan Singh. The kassa used by him was discovered at his instance and was found blood stained. The deliberate user of kassa by Darshan Singh eliminates the possibility of his not having the intention to cause homicidal death of Kartar Singh. The discovery of the weapon which is used on the head of the deceased by accused Darshan Singh militates against the absence of intention to cause homicidal death. For this reason, also, we are unable to agree with the submissions made at the Bar that Darshan Singh had no intention to cause death of the deceased. ( 15 ) IN the result, the appeal, filed by appellant Rano is partly allowed. She is acquitted of the offence under Section 302/34 IPC but is convicted for the offence under Section 323 IPC and is sentenced to the period of imprisonment already undergone by her and a fine of Rs. 2,000. ( 15 ) IN the result, the appeal, filed by appellant Rano is partly allowed. She is acquitted of the offence under Section 302/34 IPC but is convicted for the offence under Section 323 IPC and is sentenced to the period of imprisonment already undergone by her and a fine of Rs. 2,000. 00 and in default of payment of fine to undergo six months further rigorous imprisonment. She is on bail. Her bail bonds shall stand cancelled. She is allowed one months time to deposit the amount of fine. However, we do not find any merit in the appeal filed by accused-appellants Darshan Singh, Vajir Singh and amrik Singh. Their appeal is dismissed and the conviction and the sentence, passed by the learned trial Court against these appellants, are maintained. Appeal partly allowed.