JUDGMENT 1. - This appeal has been directed against the judgment dated 24.4.1980 passed by the Additional Sessions Judge No.1, Dholpur whereby he convicted appellants Bhagwant, Shibbo alias Shiv Charan, Devilal & Punkhi for offences under Section 302/34, IPC, and sentenced each one of them to life imprisonment & fine of Rs. 500/- in default thereof to further undergo rigorous imprisonment for one month. 2. During pendency of this appeal, apellants Bhagwant & Punkhi died and as such, the appeal filed on their behalf has abated. 3. The facts of this appeal are short and simple and can be recapitulated in a narrow compass. It is alleged that on 18.4.78 at about 7 A.M. the deceased Rama was crushing his wheat crop in his 'Khaliyan' situated in village Basantpura. His wife Smt. Sanaki (PW1) was assisting him. It is the case of prosecution that the appellants started hurling abuses to Ram without any rhyme or reason to which the latter objected. Thereupon, appellants Shibbo & Devilal, who were armed with lathies and appellants Bhagwant & Punkhi, who had 'farsas' attacked him. Appellants Shibbo & Devilal each dealt a lathi blow on the head of Rama, whereupon the latter fell down. Thereafter all the appellants indiscriminately caused injuries to him. It is further alleged that on hearing the hue & cry many persons came there and then the appellants went away. Due to head injury sustained by Rama, he became unconscious. He was brought to Primary Health Centre, Sar Mathura from where he was brought in a bus to Dholpur where he was admitted on 18.4.78 about 5 PM. in the Government Hospital, Dholpur. 4. Dr. M.L. Maru (PW 2), Medical Jurist, found following injuries on the person of Rama:- (1) Swelling left side fronto-parieto and temporal regions on the skull. (2) Lacerated wound 1" x 1/4" x muscle deep vertically on the occipital region or scalp 41/2" from the left ear. (3) Lacerated wound 2" x 1/2" x muscle deep vertically on the scalp 41/2" from the left ear. (4) Swelling associated with ecchymosis 2" x 11/2" over the upper lid of the left eye. (5) Swelling associated with ecchymosis 2" x 1/4" on the lower lid of the left eye. (6) Swelling 2" x 2" on the left side ecchymosis 11/2" from the upper ⅓rd left ear. (4) Swelling associated with ecchymosis 2" x 11/2" over the upper lid of the left eye. (5) Swelling associated with ecchymosis 2" x 1/4" on the lower lid of the left eye. (6) Swelling 2" x 2" on the left side ecchymosis 11/2" from the upper ⅓rd left ear. (7) Swelling 41/2" x 21/2" over the right side of scalp of the right side tempero-parietal region of scalp. (8) Multiple contusions overlapping in an area of 5" x 3" over the upper ⅓ and anterio lateral aspect of the left arm. (9) Abrasion 1/2" x 1/2" over upper 1/4 and lateral aspect of left arm. 5. The general condition of Rama was poor. He was unconscious. His pulse rate was 56 per minute. His volume and tense were low. His blood pressure was 120 mm of Hg. The pupil of his left was normally dilated and not reactive to light. His right eye was blind associated with adherent of glaucoma. The doctor prepared medico legal report (Ex.R 2) of Rama and advised x-ray of his skull. X-ray plates of his skull (Ex.R 1 & 1A) revealed fractures of skull bone. Rama was admitted as an indoor patient. 6. On the same day at 5.45 RM. Dr. Maru vide letter (Ex.R 3) informed the Station House Officer, Police Station Kotwali, Dholpur that Rama, who had lacerated wounds on the skull, and was unconscious and whose general condition was poor, was admitted in the Hospital. Thereupon Heeralal (PW11) ASI came to the said Hospital and recorded `Parcha Bayan' (Ex.R 9) of Badde (PW 5), the elder brother of Rama, and transmitted the same to Station House Officer, Police Station Sar Mathura whereupon first information report (Ex.R 23) was drawn on 19.4.78 and a case under Section 307/34, IPC was registered. 7. On 21.4.78 at about 2-3 A.M. Rama succumbed to his injuries in the Hospital. Dr. Maru (PW 2) by his letter dated 21.4.78 (Ex.P.4) intimated the said fact to the SHO, Police Station Kotwali. Heeralal, ASI conducted autopsy and prepared Panchyatnama (Ex.R 12) and informed SHO, Police Station Sar Mathura. Thereupon the case was converted for the offence under Section 302/34 IPC. 8. Dr. Maru (PW 2) who conducted the post mortem examination on the dead body of Rama noticed the following internal injuries There was clotted blood present over whole of the skull. Heeralal, ASI conducted autopsy and prepared Panchyatnama (Ex.R 12) and informed SHO, Police Station Sar Mathura. Thereupon the case was converted for the offence under Section 302/34 IPC. 8. Dr. Maru (PW 2) who conducted the post mortem examination on the dead body of Rama noticed the following internal injuries There was clotted blood present over whole of the skull. The blood as oozding out from the fractures of frontal bone, left parietal bone, left temporal bone and occipital bone. Cranial cavity was full of clotted blood. Membranes were ruptured under the fractured portion and the brain was also lacerated. In the opinion of doctor, cause of death was fractures of skull bone, laceration of brain, hemorrhage & shock. Those external injuries were ante mortem and sufficient in ordinary course of nature to cause death. 9. Hakim Singh (PW 13) SHO RS. Sar Mathura, inspected the site, prepared site plan (Ex. R 8). He seized and sealed blood stained crushed wheat plants and control sample of unstained crushed wheat plants. The appellants were arrested on 29.4.78. It is alleged that appellant Shibbo alias Shiv Charan & Bhagwant in pursuance to their informations Ex.P. 22 & 21 respectively, got recovered a lathi each from their respective houses vide recovery memos (Ex.R 11 & 10 respectively). However, those lathies were not blood stained. Blood stained `Tahmad' of the deceased Ram, samples of crushed wheat plants and recovered lathies were sent to the State Forensic Science Laboratory Rajasthan, Jaipur. As per the F.S.L. report (Ex.R 19) human blood was detected on the stained crushed wheat plants and Tehmad of the deceased. However, no blood was detected on the recovered lathies. On chemical examination their blood group also could not determined due to disintegration. After completion of the investigation the challan was filed against four appellants before the Munsif & Judicial Magistrate. Bari, who, in turn, committed the case to the learned trial Court. 10. The appellants were charged for the offence under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses. All the appellants in their plea recorded under Section 313, Cr.PC denied the circumstances appearing against them in the prosecution evidence. 10. The appellants were charged for the offence under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses. All the appellants in their plea recorded under Section 313, Cr.PC denied the circumstances appearing against them in the prosecution evidence. Appellant Bhagwant asserted that the deceased Rama was a quarrelsome person, that many cases were pending against him, that he in the past had caused grievous injuries to one Kalyan and after investigation the police filed a challan against him, wherein he (Bhagwant) was cited as a prosecution witness and, therefore, he alongwith other appellants have been falsely implicated in this case. The appellants examined two witnesses in defence. After trial, the learned Sessions Judge by the impugned judgment found the appellants guilty for offence under Section 302/34 IPC and sentenced them in the manner detailed above. Hence this appeal. 11. We have heard Shri J. Pandey the learned counsel for the appellants and Shri. Gyanesh Vyas, learned Public Prosecutor at length and carefully perused the record of the lower court in extenso. Shri Jitendra Pandey after going through the evidence recorded in this case, has rightly not challenged the factum of the incident. However, he has vigorously canvassed that even if the prosecution evidence is taken to be reliable on its face value, no offence under Section 302/34 IPC, is made out beyond reasonable doubt against the appellants, he has contended that as per statement of eye witnesses appellants Shibbo & Devilal had inflicted a lathi blow each on the head of the deceased Rama, and that other appellants had dealt `farsa' blows from reverse side on other parts of the body of Rama, that the fractures of the skull bone on the left side of Rama were the internal effect of external injury and that the injury No. 7 detailed in M.L.R. Ex. P.2) was simple in nature. In such circumstances, the appellants did not have an intention to commit the murder of Rama. On the other hand, at the worst, it can be inferred that they had knowledge that by inflicting lathi blows on the heal of deceased Rama, they were likely to cause his death. P.2) was simple in nature. In such circumstances, the appellants did not have an intention to commit the murder of Rama. On the other hand, at the worst, it can be inferred that they had knowledge that by inflicting lathi blows on the heal of deceased Rama, they were likely to cause his death. He has therefore, asserted that from the prosecution evidence the offence made out against the appellants does not travel beyond Section 304, Part II, read with Section 34, IPC. 12. On the other hand, Shri Gyanesh Vyas, the learned Public Prosecutor has strenuously urged that since the present appellants were armed with lathies and inflicted multiple injuries to Rama resulting in fracture of his skull bones and causing damage to the membranes and Brain therefore, they had the requisite intention and have been rightly convicted for offence under Section 302/34 IPC. 13. We have given our thoughtful consideration to the rival submissions. The homicidal death of Rama is not in dispute, which stands well proved by sworn testimony of Dr. M.L. Maru (PW 2), who has proved injury report (Ex.P 2) and post mortem report (Ex.R 3). 14. Badde (PW 5) is the elder brother of the deceased, Rama and on whose Parcha `Bayan', the case was registered. He has deposed that appellants Shibbo & Devilal had inflicted one lathi blow each on the head of Rama in his presence while other appellants Bhagwant & Punkhi, who have expired during the pendency of this appeal, gave farsa blows from reverse sides causing injuries to him on other parts of his body. It is true that in Parcha Bayan (Ex.R 9) names of other eye witnesses were not disclosed by Badde (PW 5) but during investigation, it transpired that the said incident was also witnessed by Smt. Janki (PW 1), widow of the deceased, Mula (PW 6), Baniya (PW 7), Harichand (PW 8) and Harhet (PW 9). These witnesses have specifically deposed that appellants, Shibbo & Devilal had dealt one lathi blow each on the head of Rama. However they have not given out any specific overt acts of other appellants, Bhagwant & Punkhi. These witnesses have specifically deposed that appellants, Shibbo & Devilal had dealt one lathi blow each on the head of Rama. However they have not given out any specific overt acts of other appellants, Bhagwant & Punkhi. These witnesses have also not stated that out of appellants Shibbo & Devilal, who had inflicted the Lathi blow on the left side of head of Rama, which resulted in fractures of frontal-temporal, parietal and occipital bones causing injuries to the membranes and brain. But from consistent testimony of the aforementioned eye witnesses, it stands well proved beyond reasonable doubt that appellants Shibbo & Devilal had come together armed with lathi at the place of occurrence, that each one of them dealt a lathi blow on the head of Rama and that after belabouring him they had gone away together. Thus their common intention to commit the crime is manifest. If the appellants had any intention to commit the murder of Rama, co-appellants Bhagwant & Punkhi, who were armed with `Farsi' would not have inflicted blow from reverse side and the present appellants, Shibbo & Devilal would have inflicted more lathi blows on the head and other vital parts of Rama. After sustaining injuries, Rama did not die instantaneously. On the other hand, he breathed his last after about 3 days of the alleged incident. In such circumstances, the only irresistible conclusion that can be drawn from the prosecution evidence is that the appellants did not have any intention to commit murder of Rama, but they definitely had knowledge that by inflicting lathi blows on the head, their act was likely to cause death of Rama. Therefore, we are of the considered opinion that the prosecution has failed to bring home offence under Section 302/34, IPC against the appellants without reasonable doubts and that the act committed by the appellants does not travel beyond offence punishable under Section 304, Part II, IPC. 15. Now, regarding quantum of punishment. Suffice to say that the appellants were arrested on 29.4.78. During trial, they were in judicial custody. Ultimately, they were bailed out on 5.8.1980 when their sentences were suspended under section 389 Cr.PC by this Court. Thus, appellants, Shibbo & Devilal each has already suffered sentence for a period of two years, three months and six days. The incident occurred on 18.4.1978 i.e. more than 17 years ago. During trial, they were in judicial custody. Ultimately, they were bailed out on 5.8.1980 when their sentences were suspended under section 389 Cr.PC by this Court. Thus, appellants, Shibbo & Devilal each has already suffered sentence for a period of two years, three months and six days. The incident occurred on 18.4.1978 i.e. more than 17 years ago. Hence keeping in view all the facts and circumstances of the case, we are of the considered opinion that the ends of justice shall be secured if the appellants are sentenced for offence under Section 304, Part II IPC read with Section 34 IPC, for the period of their detention. 16. In the premises of the above discussion, this appeal partly succeeds. The conviction and sentence of appellants Shibbo alias Shiv Charan & Devilal for offence under Section 302/34 IPC are set aside. However, they are held guilty for the offence under Section 304, Part II read with Section 34, IPC and sentenced to the period already undergone by them in this case. They are also fined Rs. 1,000/-(one thousand) each, in default of payment of fine the defaulting appellant will further undergo three months' simple imprisonment. The fine if realised shall be paid to Smt. Janaki (PW 1) widow of deceased Rama as compensation. The appellants are granted forty five days time from today to deposit the fine amount failing which the learned trial Judge shall proceed in accordance with law. *******