JUDGMENT 1. - The three appellants before us have been convicted and sentenced by the Additional Sessions Judge Jhalawar by his Judgment dated 2nd Feb., 1994 as under; Nanu Ram : Under Section 302 IPC, Life imprisonment and fine of Rs. 1000/- in default of payment of fine he has to undergo further rigorous imprisonment for one year. Balya @ Balchand and Malgilal : Under Section 302/34 IPC, Life Imprisonment and Fine of Rs. 1000/- each in default of payment of fine each of them has to undergo further one year's rigorous imprisonment. 2. At the same time, the learned Additional Sessions Judge has ordered that if the appropriate Government has passed any order under Sections 433A, 432 and 433 Cr.PC then the period spent by the accused in jail during the investigation and trial be set off against the punishment. Against this conviction and sentence the appellants have preferred this appeal. 3. The incident out of which the case arises occurred on 22nd December 1991 in village known as Chak of Moja Badia within the jurisdiction of Police Station Jalnawar. The report of the incident was lodged on the next day i.e. in 23rd December, 1991 at 9.15 a.m. at the police station Asnawar by Kalu P.W. 3, who is the father of the deceased Chandmal. According to the report at about 10.00 p.m. on 22nd December, 1991 he heard sounds of pelting stones and went out. His son Chand Mai went ahead of him. Nanu Ram, Mangi Lal and Balia accused were standing there. Balia hit stone on the head of Chandmal. Mangi Lal caught hold of him and Nanu Ram struck a blow by a Ballam (spear) on the neck near the ear. Chandmal became unconscious and fell down. Some neighbors immediately came at the site on hearing cries and saw the accused giving beating to Chandmal. Chandmal died after a while. They could not report the matter as it was late night. In the morning when they were proceeding to the police station to lodge the report Nanu Ram accused pelted stones on Phool Chand, brother of the deceased. An incident which occurred before two years ago was also mentioned in order to show enmity on account of which the present incident occurred. 4. A Case under Sections 302, 338 and 323/34 of the IPC was registered and the matter was investigated. An incident which occurred before two years ago was also mentioned in order to show enmity on account of which the present incident occurred. 4. A Case under Sections 302, 338 and 323/34 of the IPC was registered and the matter was investigated. A ballam was recovered at the instance of Nanu Ram. Accused Nanu Ram had five injuries on him and he was also examined by a doctor. The injuries of the deceased as per the post mortem report were as under : (i) A penetrating wound of 3/4" X 1/2" near angle of lower jaw and right side with clean cut margins. Directing downwards and forward. (Ascertained by blunt probe). (ii) Swelling 3" X 1" lower jaw right side up to chin with crackling sounds on pressure over the swelling. (iii) Diffused swelling large right side neck also on front of neck. (iv) Reddish contusion 1" X 3/4" right side cheek. 5. On internal examination it was found that trachea was fully blocked due to aspirated inhaled blood from the injury at lower jaw, mouth and neck with the result that it caused obstruction to respiration. The jugular vein of right side was found cut. In the opinion of the doctor, the death was due to excessive haemorrhage from jugular vein of right side alongwith choking and obstruction of trachea due to inhaled aspirated blood from injuries. The mode of the death was asphyxia and Syncope. 6. The nature of the injuries of the deceased made it apparent that he did not die a natural death. The question to be seen is whether the death occurred due to the act of the accused as given out by the prosecution or the deceased dies as a result of being stepped over by buffaloes, when Chandmal went to put fodder for them. The witnesses have denied that the injury on the neck was caused by the horn of the buffalo. This theory of the accused has been put forward in the cross examination of witnesses. 7. P.W.2 Banney Singh has stated that 12 persons including the appellants pelted stones forwards the house of Chandmal and when he came out Mangi Lal caught hold of him Nana Ram gave a Ballam blow to Chandmal and Balu lifted him and threw where the buffaloes were tied. There was previous enmity because of which Chandmal was beaten. 7. P.W.2 Banney Singh has stated that 12 persons including the appellants pelted stones forwards the house of Chandmal and when he came out Mangi Lal caught hold of him Nana Ram gave a Ballam blow to Chandmal and Balu lifted him and threw where the buffaloes were tied. There was previous enmity because of which Chandmal was beaten. He was confronted by the omission in the police statement as in that statement he has hot mentioned that Mangi Lal caught hold of Chandmal and Babu threw Chandmal amongst the buffaloes and also about Nanu Ram giving a Ballam blow on the deceased. P.W.3 Kalu is the father of the deceased who lodged the first information report. He has assigned role to all the three accused. Mangi Lal caught hold of Chandmal. Nanu Ram giving ballam blow while Balu lifted Chandmal and threw his amongst the buffaloes. In cross examination he has admitted that when he came out he saw Chandmal lying amongst the buffaloes but he denied that Chandmal died as a result of being stepped upon by the buffalo. Phool Chand is a hostile witness as he has not admitted to be an eye witness but he told that the three accused had killed Chandmal. P.W.5 Ram Singh has supported the prosecution theory assigning role to all the three accused. However this witness and P.W.4 Phool Chand have stated that they had gone to the police at night and informed about the incident P.W.7 accused gave beating to Chandmal. Nanu Ram by ballam and the other two by stones. Similarly, P.W.8 Ramesh has also gave the same version. 8. The learned counsel for the appellants has contended that all the witnesses are close relatives of the deceased hence their testimony has to be scrutinised minutely and their version should be accepted only if they are found to be wholly truthful witnesses. It is also contended that the first information report as registered by the police is not the actual report received by the police as some witnesses have stated that they had gone to the police station at night. In the alternative it is also contended that the actual injury assigned to Nanu Ram is a piercing wound on the jaw but the doctor who conducted the post mortem has not stated that this injury was sufficient in the ordinary course of nature to cause death. In the alternative it is also contended that the actual injury assigned to Nanu Ram is a piercing wound on the jaw but the doctor who conducted the post mortem has not stated that this injury was sufficient in the ordinary course of nature to cause death. Hence the injury should be taken to be a simple injury. It is also stated that the injury could have been caused by the horn of the buffalo. It is also contended that if Nanu Ram inflicted a ballam blow then the other accused cannot be held guilty with the aid of section 34 of the Indian Penal Code as there is no evidence to impute common intention to the other accused. The other contention is that the injuries of accused Nanu Ram have not been explained by the prosecution witnesses. 9. On the other hand learned Public Prosecutor has contended that there is consistent testimony or the witnesses who saw the incident. Even Phool Chand was given beating when he was going to the police station in the morning. It is contended that the. accused has not stated as to how he received the injuries so as to say that he was beaten by the complainant party. It is contended that all the three accused participated in the incident and as such they all will be guilty by the aid of section 34 IPC. 10. We have considered the contentions which have been raised in this case. The eye witnesses in the case are constant in assigning roles to the accused persons. However, there appears to be no injury on the deceased on account of which it can be said that he was lifted and thrown on the ground. Had that been the case, he would have received some injuries by the fall. As far as the evidence about Mangi Lal accused catching hold of the deceased is' concerned it is something which cannot find corroboration from any extraneous 'circumstances. No doubt the witnesses have said so but in case the witnesses decide to implicate one more person they can say that he caught hold of the deceased and there is no way of seeking corroboration from some independent source. It is only the injury caused by Nanu Ram which is corroborated by medical evidence. The witnesses have deposed about it and there is corroboration also. It is only the injury caused by Nanu Ram which is corroborated by medical evidence. The witnesses have deposed about it and there is corroboration also. It may also be stated that such an injury as found on the jaw of the deceased cannot be caused by the horn of a buffalo because buffaloes horns are not straight and pointed are curved and most of the time the curve is sidewise. The theory put forth by the accused cannot be said to be a probable suggestion. Had it been said that he was hit by horn of a cow or ox the matter would have been different. Moreover, as Nanu Ram received certain injuries therefore he must. be participating in the incident and could have received the superficial injuries in the Scuffle. Because of the injuries his presence at the site becomes probable. Thus, we are in agreement with the prosecution case as regards the case of the Nanu Ram alone and not that of Mangi Lal and Galya. 11. What offence can be said to have been committed by Nanu Ram? While piercing a ballam blow on the neck of the deceased jugular vein was out and there was profuse bleeding. The blood entered the trachea and caused obstruction to respiratory passage and caused as a phyxia. It cannot be accepted that the accused would know as to which vein would be cut the jaw and in what manner the blood would cause death. Hence, the intention of causing death cannot be attributed to him but the knowledge that by his act he would have caused death by his act he would have caused death by the blow inflicted by him cannot be lost sight. Thus, the offence of Nanu Ram would fall under Section 304-11 IPC. 12. As a result of the above discussions accept the appeals of Mangi. Lal and Balya @ Bai Chand and acquit them of the offence for which they have been convicted. They shall be released forthwith if not wanted in any other case. 13. The appeal of the accused appellant Nanu Ram is partly allowed. His conviction for the offence under Section 302 IPC is set aside but he is convicted for the offence under Section 304-11 IPC and sentenced to five years' rigorous imprisonment and a fine of Rs. 1000/-. They shall be released forthwith if not wanted in any other case. 13. The appeal of the accused appellant Nanu Ram is partly allowed. His conviction for the offence under Section 302 IPC is set aside but he is convicted for the offence under Section 304-11 IPC and sentenced to five years' rigorous imprisonment and a fine of Rs. 1000/-. In default of payment of fine he shall further undergo rigorous imprisonment for six months. *******