JUDGMENT 1. - This appeal is directed against the judgment and order dated 20.5.1994 passed by the learned Sessions Judge, Bundi, in Sessions Case No. 32/90, by which, the learned Sessions Judge convicted the accused appellants for the offences under Section 302/34, 325/34, 323 IPC and passed the following sentences: Mahavir U/s. 302/34 IPC Imprisonment for life and a fine of Rs. 1,000/-, in default two months R.I. U/s. 325/34 IPC six months R.I. U/s. 323 IPC three months R.I. Devraj U/s. 302/34 IPC Imprisonment for life and a fine of Rs. 1,000/-, in default two months R.I. U/s. 325 IPC Six months R.I. U/s. 323 IPC No separate sentence was made. 2. In short, the prosecution case is that injured Sheoji and deceased Bhanwar Lal were brother. On 29.12.1989, injured Sheoji lodged oral report at Police Station, Sadar, Bundi to the effect that he and his brother were having cattle and on that day. Bhanwar Lal went to search she goat in the Rewad (herd), he met him in the way and when both were coming, in the way appellants met them. At that time Mahavir was having a Gandasi and Devraj was having lathi. It is alleged that both the appellants started beating them with Gandasi and lathi. On hearing the hue and cry Balaji Gujar, came there and on seeing him they both ran away. On the basis of this report a case FIR No. 228/89 was registered U/ss. 341, 323/34, 307 IPC. As Bhanwar Lal died on 2.1.1990 due to injuries sustained by him during this incident, the case was converted from offence U/s. 302 IPC. 3. After usual investigation a charge-sheet for the offences under Sections 302, 325, 341, 323 filed in the Court of Additional Chief Judicial Magistrate, Bundi, who committed the case for the Court of Session Judge, Bundi. After hearing both sides charges U/ss. 302/34, 325, 323 again accused Devraj and U/ss. 302, 325/34, 323 IPC the accused Mahavir were framed. Accused pleaded guilty and claimed to be tried. The prosecution examined 16 witnesses, the statements of accused were recorded U/s. 313 Cr.P.C. and in defence DW 1 Ramdhan, DW 2 Sukhdeo were examined. Both the accused have denied all the allegations levelled against them and have stated that the statements of the prosecution witnesses are false. 4. Accused pleaded guilty and claimed to be tried. The prosecution examined 16 witnesses, the statements of accused were recorded U/s. 313 Cr.P.C. and in defence DW 1 Ramdhan, DW 2 Sukhdeo were examined. Both the accused have denied all the allegations levelled against them and have stated that the statements of the prosecution witnesses are false. 4. After hearing both the sides the learned Sessions Judge held that prosecution has proved that the appellants inflicted the injuries to Bhanwar Lal and Sheoji. Bhanwar Lal died due to head injury, but which of the appellants caused the fatal blow on the head of the deceased has not been established, therefore, convicted the accused appellants u/s. 302/34 IPC. Hence this appeal. 5. We have heard the learned counsel for the appellants and learned Public Prosecutor and gone through the record. 6. The learned counsel has submitted that Bhanwar Lal had died after 3 days of the incident. The incident had taken place all of a sudden. There could have been the common intention of the appellants, to commit the murder of the deceased. The injuries were not sufficient in the ordinary course of nature to cause death. Dr. Praveen Shankar has stated that had he been given medical aid (operation) in time his life could have been saved. The prosecution has produced two sets of evidence and it has not been proved that who inflicted the fatal blow on the head of the deceased. No case u/s. 302/34 IPC is made out against the appellants. Similarly, the injuries on the person of Sheoji have not been proved by legal and reliable evidence. 7. On the other hand, the learned Public Prosecutor has supported the judgment of the learned trial Court and has submitted that both the appellants have inflicted injuries by Gandasi and lathi, the cause of death is head injury. It makes no difference if Bhanwar Lal died after 3 days of the incident or which of the appellants inflicted the fatal blow as there was intention to kill Bhanwar Lal and the case falls u/s. 304/34 IPC. The prosecution has proved its case against both the appellants beyond any doubt. 8. This incident according to the prosecution had taken place in the evening of 29.12.1989. Deceased Bhanwar Lal and PW 4 Sheoji were examined by PW 10 Dr. The prosecution has proved its case against both the appellants beyond any doubt. 8. This incident according to the prosecution had taken place in the evening of 29.12.1989. Deceased Bhanwar Lal and PW 4 Sheoji were examined by PW 10 Dr. Kamlesh on 29.12.89 and on 30.12.89 respectively and found the following injuries: (A) Injuries of Bhanwar Lal as per Ex.P 8 dated 29.12.89 (1) Lacerated would 13/4" x ⅛ upto bone vertical bleeding + at the mid of parietal region of scalp. (2) Abrasion 11/4 x 1/2 at the posterio surface of left elbow (3) Contusion & Abrasion 11/4" x 1" radish at the right side upper part of chest. (4) Contusion 21/2" x 2" at the left fronto parietal region of scalp. (5) Contusion 4" x 21/2" radish at the posterio surface middle of left forearm. (B) Injuries of Sheoji as Per Ex.P 9 dated 30.12.89. (1) Contusion 21/2" x 2" bluish at the posterio lateral surface of Rt. elbow. (2) Contusion & Abrasion 3 x 2 bluish at the posterio surface lower half of Rt. forearm. (3) Brasion 3" x ⅛" oblique at the posterior lateral surface middle of Rt. arm. (4) Abrasion 1/2" x 1/4" at the posterio surface middle phalangn of index finger. (5) Contusion 11/2" x 1" at the left side of forehead. (6) Contusion 11/4" x 11/4" at the medial side of left. 9. Bhanwar Lal was admitted in hospital for his treatment, died on 2.1.1990 at about 3.35 p.m. The post mortem was performed by Dr. Praveen Shankar Jha and prepared post mortem report Ex.P 21. According to him the following injuries were found on the person of the deceased.- (1) Lacerated wound 4 cm x 0.3 cm on the center of skull vertical. (2) Contusion 6 cm x 5 cm Left fronto Parietal region. (3) Abrasion 3 cm x 1 cm Left elbow posteriorly; (4) Abrasion 3 cm 2 x cm upper part chest right side; (5) contusion 10 cm x 6 cm left fore arm middle posteriorly. 10. According to Dr. Praveen Shankar the cause of death was head injury (extra dural hemorrhage). 11. The prosecution has examined PW 1 Panchu, PW 2 Ganesh, PW 4 Sheoji, PW 5 Balu and PW 6 Ram Lal as eye witnesses. The learned counsel submitted that PW 6 Ram Lal is not an eye witness. 10. According to Dr. Praveen Shankar the cause of death was head injury (extra dural hemorrhage). 11. The prosecution has examined PW 1 Panchu, PW 2 Ganesh, PW 4 Sheoji, PW 5 Balu and PW 6 Ram Lal as eye witnesses. The learned counsel submitted that PW 6 Ram Lal is not an eye witness. According to him, the learned Sessions Judge has held that PW 1 Panchu, PW 2 Ganesh and PW 5 Balu have not seen the incident, therefore, they are not eye witnesses. He has further stated that the learned Sessions Judge has placed reliance on PW 4 Sheoji but he is brother of the deceased and being an interested witness, accused appellants should not have been convicted on the sole testimony of PW 4. His statement is not corroborated by medical evidence, therefore, he is not a witness of sterling worth. 12. After careful scrutiny of the statements of PW 1 Panchu, PW2 Ganesh, PW 5 Balu, we are in agreement with the finding of the learned Sessions Judge that they are not the eye witnesses, they have not seen the incident but reached the place of incident just after the incident, and saw the appellants running from that place having Mahavir Gandasi and Devraj having lathi, Bhanwar Lal and Sheoji were injured and Bhanwar Lal was lying on the ground. There is no reason to disbelieve their statements. No doubt, that Sheoji is the brother of the deceased but this fact itself is not sufficient to discard his testimony. The prosecution case is that when Bhanwar Lal and Sheoji were going together, accused appellants came armed with Gandasi, lathi and started beating by which both brothers suffered various injuries as mentioned in the injury reports. Presence of Sheoji on the spot is proved, he was also injured in the incident and his injuries could not have been self inflicted. His testimony does not stand shattered in any manner. The statement of PW 6 Ram Lal is also relevant. He has stated that some altercation between Mahavir and Bhanwar Lal had taken place in the morning. 13. On the basis of the prosecution evidence we are satisfied that the appellants are responsible for causing the injuries to deceased Bhanwar Lal and PW 4 Sheoji as mentioned in Exs. P 8 and P9-injury reports proved by Medical Officer Dr. He has stated that some altercation between Mahavir and Bhanwar Lal had taken place in the morning. 13. On the basis of the prosecution evidence we are satisfied that the appellants are responsible for causing the injuries to deceased Bhanwar Lal and PW 4 Sheoji as mentioned in Exs. P 8 and P9-injury reports proved by Medical Officer Dr. Kamlesh, and trial Court did not commit any error in holding the appellant responsible for the injuries sustained by the deceased and Sheoji. 14. The next question comes that what offence is made out against the appellant and what sentence should be awarded to them. The learned counsel has submitted that this incident had taken place all of a sudden, looking to the injuries there was no intention to commit murder of Bhanwar Lal. No case is made out u/s. 302 IPC against the appellants because from the evidence produced by the prosecution it has not been proved that who had given the fatal blow to the deceased Bhanwar Lal, therefore, prosecution case does not travel beyond the limit of Sec. 325 IPC. 15. We have considered this aspect of the case. Looking to the evidence we are of the onion that it is not borne out that which of the appellants caused the fatal blow on the head of deceased. According to the injury report of the deceased all injuries were caused by blunt weapon. He died after three days of the incident. Looking to the totality of the circumstances of this case in our opinion, no case is made out u/s. 302 IPC against the accused appellants and they can only be held guilty u/s. 325/34 IPC. 16. In the result, the appeal-is allowed in part. The conviction and sentence of the appellants under Section 302 IPC read with Section 34 IPC for causing death of Bhanwar Lal is set aside. Instead, they are convicted under Section 325 read with Section 34 IPC and sentenced to undergo the period of imprisonment already undergone by each one of them arid to pay fine of Rs. 5,000/- each. In default of payment of fine, they shall undergo rigorous imprisonment for one year. Two months time is granted to deposit the amount of fine in the trial court. 5,000/- each. In default of payment of fine, they shall undergo rigorous imprisonment for one year. Two months time is granted to deposit the amount of fine in the trial court. For causing grievous hurt to the injured Sheoji, sentence of six months rigorous imprisonment under Section 325 read with Section 34 IPC as awarded by the trial Court is maintained. The appellants have already undergone this sentence of imprisonment. 17. Consequently, the appellant Devraj who is in custody shall be released forthwith if not wanted in any other case. The appellant Mahavir is on bail and he need not surrender. However, If they fail to deposit the amount of fine as awarded by this Court within the specified period, the trial Court shall take steps for their arrest to undergo the period of imprisonment awarded in default of payment of fine. The amount of fine, if realised, shall be paid by the trial Court immediately to the heirs of deceased Bhanwar Lal.The appeal stands disposed of as indicated above.Appeal partly allowed. *******