JUDGMENT 1. - These two appeals are directed against the judgment dated 7.12.1993 passed by the District and Sessions Judge, Sirohi, by which the learned Sessions Judge acquitted accused-respondent Narain but convicted accused-appellant Ganesh for the offence Under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's simple imprisonment. 2. Accused-appellant Ganesh, alongwith Narain - the two brothers - were tried by the learned Sessions Judge, Sirohi for committing the murder of Jora, who was the brother-in-law of their brother Kalu. The case of the prosecution, which led to the prosecution, trial and conviction of accused-appellant Ganesh and the acquittal of accused-respondent Narain, in nut shell, is that on 21.4.1992 Karmi (PW 2), his sons Jora and Balu and his sister-in-law Mst. Sammu, had gone to attend the marriage of his sister's son Arjun in village Sangholi. On 22.4.1992, at about 7.00 a.m., he and his sons Jora and Balu had gone to see his daughter Mst. Maggi, who was married to Kalu in village Sangholi. They were talking to Maggi. In the meantime Narain and Ganesh, who are the sons of Dalba Koli and the brothers-in-law of his daughter Maggi, came there. Both were in a drunken state. Ganesh was armed with a Lathi (Babul stick). Both of them asked to turn-out Mst. Maggi. Jora, Balu and Mst. Maggi were standing in the court-yard. They tried to pacify the accused and asked them that since they have consumed the liquor, therefore, it would be proper that they should go away but the accused did not acceded to their request. Narain thereafter caught-hold of Jora and Ganesh inflicted injury by the Lathi on the head of Jora. On receiving the Lathi-blow, Jora fell down on the ground and died. Narain and Ganesh, after inflicting the.injury to Jora, also, ran away. This incident was witnessed by Sammu, also. 3. The prosecution, in support of its case, examined seventeen witnesses. The accused did not examine any witness in their defence. The learned Sessions Judge, after trial, convicted and sentenced accused-appellant Ganesh for the offences Under section 302 Indian Penal Code, as stated above, but acquitted accused-respondent Narain. This incident was witnessed by Sammu, also. 3. The prosecution, in support of its case, examined seventeen witnesses. The accused did not examine any witness in their defence. The learned Sessions Judge, after trial, convicted and sentenced accused-appellant Ganesh for the offences Under section 302 Indian Penal Code, as stated above, but acquitted accused-respondent Narain. It is against this judgment dated 7.12.1993 passed by the learned trial Court that appellant Ganesh has preferred D.B. Criminal Appeal No. 524 of 1993 challenging his conviction and sentence for the offence Under section 302 Indian Penal Code; while the State has filed D.B. Criminal Appeal No. 497 of 1994 challenging the judgment acquitting accused-respondent Narain. 4. The nature of the evidence produced by the prosecution consists of the evidence of the five eye-witnesses, viz., PW 2 Karmi, PW 6 Mst. Maggi, PW 7 Sammu, PW 9 Babu and PW 11 Mst. Teju. This evidence is sought to be corroborated by the evidence of PW 3 Nona, to whom PW 7 Sammu informed about the incident immediately after it occurred. PW 8 Kala is the brother of the accused who returned from Abu Road after selling the milk and was informed regarding the murder of Jora by the two accused. PW 10 Amba, PW 12 Dharma and PW 15 Agra are the Motbir witnesses but they have not supported the prosecution case and have been declared hostile. The remaining are the police witnesses who were connected with the investigation at one stage or the other. 5. The case of the prosecution mainly rests upon the evidence of the eye-witnesses. PW 2 Karmi has stated that he, alongwith his sons Babu and Jora and the sister-in-law Sammu had gone to village Sangholi to attend the marriage of Arjun, where his daughter Maggi was married to Kala. They reached the village in the night at about 9.00 p.m. and attended the marriage of Arjun which took place in the night. In the morning they went to see his daughter Maggi where the accused were, also, living. Accused Ganesh was having a Lathi while Narain was empty handed. Both of them were in a drunken state. They requested the accused to leave the place but the accused asked them to bring Maggi. Thereafter accused Narain caught hold Jora while accused Ganesh inflicted injury by Lathi on the head of Jora. Accused Ganesh was having a Lathi while Narain was empty handed. Both of them were in a drunken state. They requested the accused to leave the place but the accused asked them to bring Maggi. Thereafter accused Narain caught hold Jora while accused Ganesh inflicted injury by Lathi on the head of Jora. Jora, after receiving the injury fell down on the ground and died within ten minutes. The accused were suspecting that Mst. Maggi had illicit relations with Bhopiya Rajput. 6. The evidence of PW 6 Mst. Maggi is to the effect that she was in the house when her aunt Smt. Sammu, father Karmi and brothers Jora and Babu came to see her. They came from village Kiyaria to village Sangholi to attend the marriage of Arjun. When they were talking, both the accused, who are her real brothers-in-law (Dewar) came there and asked them to turn her out. Her brothers tried to pacify them. Thereupon Narain caught hold of Jora and Ganesh inflicted injury by the Lathi (Babul stick) on the head of Jora. On receiving this injury, Jora fell down and died. Both the accused thereafter ran away from the place of the incident. Ganesh took the Lathi with him. 7. Similar are the statements of PW 7 Mst. Sammu, PW 9 Babu and PW 11 Mst. Teju. 8. The presence of PW 6 Mst. Maggi at the place of the incident is most natural. It was her own in-laws house where the other witnesses had gone. The accused were, also, living in the same house. The presence of the other witnesses, viz., PW 2 Karmi, his sons PW 9 Babu and his wife PW 11 Smt. Teju and that of PW 7 Mst. Sammu, are, also, most natural. They had come that village to attend the marriage of Arjun. The marriage took place in the night and in the morning, before leaving the village, they thought it proper to meet Mst. Maggi who had invited them on tea. They had gone there to meet Maggi. When they were talking together, the accused came there and some altercations took place and accused, Ganesh inflicted injury by Lathi to Jora. The presence at the place of the incident at the relevant time when the incident took place, was most natural and they had seen the occurrence. They had gone there to meet Maggi. When they were talking together, the accused came there and some altercations took place and accused, Ganesh inflicted injury by Lathi to Jora. The presence at the place of the incident at the relevant time when the incident took place, was most natural and they had seen the occurrence. It, therefore, stands established that it was accused-appellant Ganesh who inflicted the injury by Lathi to Jora on his head which resulted in the death of Jora. 9. Now, coming to the involvement of accused-respondent Narain in the commission of the murder of Jora. The part assigned to Narain is only to the effect that both the accused, in a drunken state, came there, some altercations took place and Narain caught hold of Jora and Ganesh inflicted injury by Lathi on the head of Jora. The learned trial Court acquitted accused Narain on the ground that he did not share any common intention with accused Ganesh for inflicting injury to Jora which resulted in his death. It was all by chance that when Narain caught hold of Jora, Ganesh inflicted injury by Lathi on the head of Jora which proved fatal. The learned trial Court has considered the evidence produced by the prosecution in the right perspective and rightly acquitted accused Narain and held accused Ganesh guilty. In the statements of the eye-witnesses recorded during the trial, the part assigned to Narain was, also, of inflicting injury by Lathi to the deceased; but since the deceased had only one injury on his person which could not have been caused by two persons by two separate Lathi-blows, therefore, they have to restrict themselves only to Ganesh so far as infliction of the injury to Jora is concerned and as such assigned the part of catching-hold of Jora by Narain. According to the earlier version Narain did not catch hold of Jora and, therefore, this part of the statement of the witnesses, implicating Narain to the effect that he caught-hold of Jora with the common intention which he had allegedly shared with Ganesh, does not inspire confidence and the case of the prosecution against Narain raises a suspicion and as such he was rightly acquitted by the learned trial Court. 10. 10. From the evidence produced by the prosecution it does not stand established beyond reasonable manner of doubt that accused-respondent Narain shared the common intention with accused-appellant Ganesh of killing Jora. Accused Narain was, therefore, rightly acquitted by the learned trial Court and we do not find any merit in the appeal filed by the State. 11. The next question which requires consideration is : what offence has been committed by accused-appellant Ganesh ? The appellant inflicted only one injury by Lathi on the head of Jora which proved fatal and took the life of Jora. It has come in the evidence that the relations between the appellant and the deceased were cordial. The accused-appellant had no motive to kill Jora or to inflict any injury to him. If at all appellant Ganesh had any motive then it was against Mst. Maggi whose character the accused were suspecting. All the witnesses have admitted that the relations between the appellant and the deceased were cordial and the appellant inflicted only one injury by Lathi to deceased Jora. There was no repetition of the blows by appellant Ganesh to Jora. After inflicting one injury the appellant went away. In these facts and circumstances of the case the intention of the appellant to kill the deceased or to inflict him such injury which could have proved fatal, was never intended by the appellant. The totality of the established facts and circumstances, thus, show that the occurrence happened most unexpectedly and without any pre-meditation and during the course of this the appellant caused solitary injury by Lathi to Jora. The appellant, therefore, cannot be imputed with the intention to cause the death of the deceased or had any intention to cause that particular injury. He can, at the most, be imputed with the knowledge that he was likely to cause an injury which was likely to cause the death of Jora. In the absence of any positive proof that the appellant caused the injury to Jora with an intention to cause his death or intentionally to cause that particular injury which, in the ordinary course of nature was sufficient to cause the death of the deceased, neither Clause I nor Clause. III of the Section 300 Indian Penal Code can be attracted and the appellant can be held guilty only for the offence Under section 304 Pt. II, Idian Penal Code. 12. III of the Section 300 Indian Penal Code can be attracted and the appellant can be held guilty only for the offence Under section 304 Pt. II, Idian Penal Code. 12. The appeal filed by accused-appellant Ganesh, therefore, deserves to be partly allowed and the conviction of the appellant for the offence Under section 302 IPC deserves to be quashed and set-aside and the appellant deserves to be convicted for the offence Under section 304 Pt. II, Indian Penal Code. 13. In the result, the appeal filed by accused-appellant Ganesh is partly allowed. The conviction and sentence of the appellant for the offence Under section 302 Indian Penal Code are set aside. However, the appellant is convicted for the offence Under section 304 Pt. II, Indian Penal Code and is sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 10,000/- and in default of payment of fine further to undergo one year's rigorous imprisonment. In case the amount of fine is recovered from accused-appellant Ganesh then the same may be paid to the parents, viz., Karmi and Mst. Teju, of deceased Jora. 14. The appeal filed by the State has no merit and the same is hereby dismissed.Appeal Partly Allowed. *******