JUDGMENT - VISHNU SAHAI, J.:---By this appeal, the appellants have assailed the Judgement and order dated 25-1-1990 passed by the IIIrd Additional District and Sessions Judge, Kolhapur, in Sessions Case No. 34 of 1988, convicting and sentencing each one of them, in the manner stated hereinafter:- i) All the appellants under section 304(2) r/w 34 I.P.C. to 2 years R.I. and to pay a fine of Rs. 200/- i.d. S.I. for 15 days. ii) Appellant Maruti Yeshwant Vaghamode under section 324 I.P.C. and R.I. for 1 month and to pay a fine of Rs. 200/- i.d. S.I. for 7 days. I may straight away mention that there is documentary evidence to indicate that the appellant No. 1 Mahipati Krishna Karande, is dead. Consequently, in view of the provisions contained in section 394 Cr.P.C. the appeal abates, in relation to him. 2.In short, the prosecution case runs as under. The informant Akkatai, P.W. 2 is the wife of the deceased Yeshwant and mother of Sukhdeo P.W. 3. The deceased Yeshwant and the appellants were residents of a common village namely Sambapur which was situate within the limits of Taluka Hathkanangale, in the District of Kolhapur. The evidence of Akkatai, P.W. 2 is that relations between the appellants and them were not bad. She stated that on 3-10-1987, at about 8 a.m. she and her son Sukhdeo P.W. 3 heard shouts to the effect 'Beat Beat catch catch'. They saw that 10 to 12 steps from their house, the appellant Mahipati and Devappa with sticks, Akaram and Maruti with blunt side of axes, were assaulting Yeshwant. Akaram inflicted a blow with blunt portion of the axe on the head of Yeshwant who fell down as a result there- of. When Akkatai tried to intervene, Maruti from the blunt side of the axe, assaulted her on left hand and right leg. After assaulting Akkatai and Yeshwant, the appellants ran away. 3.Thereafter, Akkatai and Sukhdeo boarded a bus and on the same, came to M.I.D.C. Police Station. At the said police station, the same day at 9 a.m. Akkatai lodged her F.I.R. On its basis, police head constable Jalandar Patole, made an entry in the station diary and registered an offence at C.R. No. 64/87. 3.Thereafter, Akkatai and Sukhdeo boarded a bus and on the same, came to M.I.D.C. Police Station. At the said police station, the same day at 9 a.m. Akkatai lodged her F.I.R. On its basis, police head constable Jalandar Patole, made an entry in the station diary and registered an offence at C.R. No. 64/87. 4.The evidence is that after C.R. No. 64/87 was registered at M.I.D.C. Police Station, A.S.I. Shantaram Bhosale, P.W. 16 along with some police personnel, Akkatai and Sukhdeo proceeded to village Sambapur on a Jeep. On reaching the village, he found that Yeshwant was precariously injured. Consequently, he sent him to the C.P.R. Hospital along with constable Satpute, and sent Akkatai with a yadi through constable Patole for medical examination to the Primary Health Centre Shiroli. 5.The injuries of Akkatai were medically examined the same day at Primary Health Centre, Shiroli by Dr. Raosaheb Patil, P.W. 4. He found that she had sustained two injuries out of which, one was a contusion of the dimensions 5" x 3" over left arm upper half and one was a minor abrasion on the right leg below the knee joint. In the opinion of Dr. Patil, both the injuries were simple in nature and were caused within 6 hours and were attributable to blunt side and handle of an axe. Evidence is that by the time Yeshwant reached the C.P.R. Hospital, he was dead. The post mortem on the corpse of Yeshwant was conducted same day between 1.30 p.m. to 2.30 p.m. by Dr. Aruna Birdi, P.W. 5. Dr. Birdi found the following injuries on the corpse:- "1. Weal mark 5" x 1" left side back laterally vertical from 5th to 10th rib. 2. Weal mark left shoulder transverse 5" x 1" bluish red in colour. 3. Weal mark over rt. scapula region 6" x 2" bluish red in colour. Transverse. 4. Weal mark left shoulder 6" x 1" obliquily in bluish red. 5. Minor abrasion rt. shoulder 1/2" in diameter. 6. Minor abrasion at the level 10th thoracic vertebra. 7. Minor abrasion left side nose. 8. Minor abrasion above left eye brow. 9. Minor abrasion 1" in diameter over left side of forehead. 10. Contused lacerated wound 4" x ½" scalp deep, over vertex oblique in direction. 5. Minor abrasion rt. shoulder 1/2" in diameter. 6. Minor abrasion at the level 10th thoracic vertebra. 7. Minor abrasion left side nose. 8. Minor abrasion above left eye brow. 9. Minor abrasion 1" in diameter over left side of forehead. 10. Contused lacerated wound 4" x ½" scalp deep, over vertex oblique in direction. On internal examination, he found fracture of 7th, 8th, 9th and 10th ribs on left side which had resulted in multiple lacerations on lateral border of spleen with torn splenic vessels with profused haemorrage, which proved to be fatal. Dr. Birdi opined that the injuries of the deceased were sufficient to cause death and were attributable to sticks and handles of axe. 6.The investigation was conducted in the usual manner by A.S.I. Shantaram Bhosale, P.W. 16 and P.S.I. Eknath Patil, P.W. 18. During the course of it, weapons of assault were recovered on the pointing out of the appellants. On the pointing out of appellants Mahipati and Devappa sticks were recovered and on that of Akaram and Maruti, axes were recovered. The said recoveries were made under panchanamas in the presence of public panchas. On completion of the investigation, the appellants were charge sheeted. 7.The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellants were charged for the offence under section 302 r/w 34 I.P.C. The appellant Maruti was further charged under section 324 I.P.C. To the said charges, they pleaded not guilty and claimed to be tried. During the trial, in all the prosecution examined 18 witnesses. Five namely Akkatai, P.W. 2, Sukhdeo P.W. 3, Sou. Sunita Karande, P.W. 10, Sangita P.W. 11, and Sou. Shantabai Karande, P.W. 12 were sought to be examined as eye-witnesses. The last three turned hostile. In defence, no witness was examined. The trial Judge believed the evidence of the prosecution and convicted the appellants in the manner stated in para 1. Hence, this appeal. 8.I have heard Mr. B.R. Patil for the appellants and Mr. S.R. Borulkar, Additional Public Prosecutor for the State of Maharashtra. I have also perused the depositions of the prosecution witnesses, the material exhibits tendered and proved by the prosecution and the impugned judgment. In my view, this appeal deserves to be partly allowed. Hence, this appeal. 8.I have heard Mr. B.R. Patil for the appellants and Mr. S.R. Borulkar, Additional Public Prosecutor for the State of Maharashtra. I have also perused the depositions of the prosecution witnesses, the material exhibits tendered and proved by the prosecution and the impugned judgment. In my view, this appeal deserves to be partly allowed. 9.I have no hesitation in concluding that so far as the involvement of the appellants in the incident is concerned, the same is established from the trustworthy ocular account furnished by Akkatai, P.W. 2 and Sukhdeo, P.W. 3, the wife and son of the deceased, respectively. It is on the basis of the recitals emerging from the examination-in-chief of the said witnesses, that I have set out the prosecution story in para 2. In short, these witnesses have stated that on 3-10-1987, at about 8 a.m. they heard cries of 'Beat Beat, Catch Catch'. On the said cries, when they came out from their house, they saw the appellants Mahipati and Devappa, with sticks, appellants Akaram and Maruti with blunt portions of axes, assaulting Yeshwant. According to them, Akaram inflicted a blow with blunt portion of axe on his head, resulting in his falling down. When Akkatai tried to save Yeshwant, the appellant Maruti assaulted her on left hand and right leg with the blunt side of an axe. It is significant to point out that the manner of assault deposed to by the aforesaid witnesses is corroborated by the nature of the injuries sustained by Yeshwant and those found on the person of Akkatai. Although both Akkatai and Sukhdeo were subjected to a searching cross-examination but, nothing could be extracted there from which would shake their veracity. The defence has not been able to point out any ostensible reason on the part of these witnesses for falsely implicating the appellants. It should be borne in mind that Akkatai is an injured witness and the time-honoured rule is that if the evidence of an injured witness is corroborated by the medical evidence, and there is no infirmity in the account given by such a witness, which militates against the core of the prosecution case, it should be accepted. In the instant case, Counsel for the appellants could not point out any infirmity in the evidence of Akkatai on the basis of which I could reject it. In the instant case, Counsel for the appellants could not point out any infirmity in the evidence of Akkatai on the basis of which I could reject it. I may also mention that although Sukhdeo is a child witness, his evidence inspires confidence. 10.Assurance to the ocular account is forthcoming by the circumstance that the F.I.R. of the incident was lodged within one hour of the incident by Akkatai at M.I.D.C. Police Station. In the said F.I.R. the appellants are named and the manner of assault has also been furnished. This prompt F.I.R. clinches the involvement of the appellants, in the instant crime. Another circumstance which also establishes the participation of the appellants in the incident is that during the investigation, on the pointing of appellants Mahipati and Devappa, sticks were recovered and on that of Akaram and Maruti, axes were recovered . The said recoveries were made under panchnamas in the presence of public panchas and have been rightly relied upon by the learned trial Judge. 11.The next question is whether the trial Judge acted correctly in convicting the appellants, under section 304(2) r/w 34 I.P.C. My answer to it is in the negative. In my view, only an offence under section 326 r/w 34 I.P.C. would be made out against the appellants, in respect of the assault on the deceased, for the reasons stated hereinafter:- a) The appellants Mahipati and Devappa, were the own brothers of the deceased Yeshwant and there is nothing to indicate that either they or the appellant Maruti had any malice or illwill against the deceased; b) Although the appellant-Akaram was bearing grudge against the deceased because, two days before the incident, when he was beating a lady in the house of the deceased, the deceased asked him not to do so, this motive in my view, was only strong enough to conclude a common intention on the part of appellants, to give a good beating to Yeshwant; It should be borne in mind that Akkatai herself has stated that relations between the appellants and her husband were not bad; c) Although, two of the appellants namely Akaram and Mahipati, were armed with axes but, they assaulted Yeshwant with blunt, portion of the axes; d) Out of the 10 injuries suffered by the deceased Yeshwant, 5 were minor abrasions, which in the opinion of Dr. Birdi were possible as a consequence of the deceased falling on the ground. The evidence also is that after receiving a blow from the blunt side of axe on head, at the hands of appellant Akaram, the deceased fell down. Looking to the dimensions of the said abrasions, it appears that they were caused by the deceased falling down on the ground. If these abrasions are excluded, only five injuries remain which appear to have been caused as a consequence of the assault made by the four appellants; e) Although there is nothing to indicate that the witnesses or those who came on the place of the incident, were armed with any weapons and prevented the appellants from killing the deceased on the spot, the deceased was not killed on the spot. The evidence instead is that he died while being taken to the C.P.R. Hospital; and f) The Autopsy Surgeon Dr. Birdi, in cross examination, admitted that injury Nos. 2 to 10 were simple in nature. In other words, the only grievous injury was injury No. 1, and it has not been specified by the prosecution as to which of the four appellants caused it. 12.It may be mentioned that persons who conjointly commit criminal acts, may only have community of intention up to a certain extent. If one or some of them, exceeds the stipulated common intention, then all would not be liable. Only the person who exceeded the common intention would be liable. In the instant case, the prosecution has not been able to pin point as to which of the four appellants was responsible for inflicting injury No. 1 suffered by the deceased beneath which there was fracture of 7th, 8th, 9th and 10th ribs on left side leading to laceration of spleen and death of the deceased. However, it admits of no argument that when the appellants armed with sticks and axes conjointly launched an assault on the deceased, it can be reasonably inferred that they knew that at least grievous hurt could be caused to him and therefore, they could be said to have shared the common intention for causing grievous hurt to him. However, it admits of no argument that when the appellants armed with sticks and axes conjointly launched an assault on the deceased, it can be reasonably inferred that they knew that at least grievous hurt could be caused to him and therefore, they could be said to have shared the common intention for causing grievous hurt to him. In such a situation, the safer course and indeed the wiser course as observed earlier, would be to convict the appellants for the offence under section 326 r/w 34 I.P.C. instead of one under section 304(2) r/w 34 I.P.C. 13.So far as the conviction of the appellant Maruti for an offence under section 324 I.P.C. is concerned, the same in my view has been correctly recorded because, the evidence of Akkatai is that he assaulted her with the blunt portion of axe and the medical evidence shows that Akkatai sustained simple injuries attributable to blunt portion of an axe. 14.Only one question remains to be answered namely that of quantum of sentence. Mr. Patil learned Counsel for the appellants, strenuously urged that the instant case does not call for a jail sentence for the reasons stated hereinafter:- a) The incident took place nearly 10 years ago; b) There is nothing to indicate that the appellants are previous convicts; c) The appellants have already been in jail for about 3 months; d) The appellants and the injured Akkatai live in immediate proximity of one another; and e) The sentence of two years R.I. awarded to the appellants, by no means is deterrent. On the converse, if they are sent to jail to serve it, they would be uprooted from the main stream of life. Mr. Patil urged that the ends of Justice would be better served, if the jail sentence of the appellants is reduced to the period already under gone and in lieu thereof, a substantial fine is imposed upon them which should be directed to be paid as compensation to Akkatai. 15.I frankly admit that on the first blush, I was not inclined to accept Mr. Patil's contention because, as a consequence of an assault launched by the appellants, Yeshwant had been killed. However, on a deeper reflection I realised that the same was pregnant with merit. 15.I frankly admit that on the first blush, I was not inclined to accept Mr. Patil's contention because, as a consequence of an assault launched by the appellants, Yeshwant had been killed. However, on a deeper reflection I realised that the same was pregnant with merit. There is no denying the fact that a sentence of two years R.I, would not provide any deterrent but, on the converse, would uproot the appellants, from the mainstream of life. At any rate, if the appellants, serve the said period, what does Akkatai, widow of the deceased, gain. In such a situation, in my view, the better course would be to reduce the jail sentence of the appellants, to the period already undergone and direct the appellants, Akaram and Mahipati Karande, Devappa Rama, Karande and Maruti Yeshwant Vaghamode to pay a fine of Rs. 20,000/- each and in default to undergo 18 months R.I. for the offence under section 326 r/w 34 I.P.C. 16.In the result, this appeal stands partly allowed and partly dismissed. As mentioned in para 1, the appellant Mahipati Krishna Karande is dead, and the appeal in relation to him abates. The appellants Akaram Mahipati Karande, Devappa Rama Karande, and Maruti Yeshwant Vaghamode, are acquitted for the offences under section 304 (2) r/w 34 I.P.C and their sentence on the said count is set aside. In case they have paid the fine, it shall stand refunded to them. Instead, the said appellants are convicted for the offence punishable under section 326 r/w 34 I.P.C, but their jail sentence on the said count, is reduced to the period already undergone by them and each one of them is directed to pay a fine of Rs. 20,000/- within 6 months from today in the trial Court, failing which, the defaulting appellant/appellants, as the case may be, would undergo 18 months R.I. Although conviction of appellant Maruti Yeshwant Waghamode, for the offence under section 324 I.P.C. and the sentence of fine imposed thereunder is maintained, his jail sentence is reduced to the period already undergone by him. The fine deposited by the appellants, in pursuance of my order shall be paid as compensation to Akkatai Yeshwant Karande, P.W. 2, the widow of the deceased Yeshwant Karande. As soon as the appellants deposit the fine, the trial Court shall inform her about the same and pay the whole amount to her. The fine deposited by the appellants, in pursuance of my order shall be paid as compensation to Akkatai Yeshwant Karande, P.W. 2, the widow of the deceased Yeshwant Karande. As soon as the appellants deposit the fine, the trial Court shall inform her about the same and pay the whole amount to her. In case she is not alive, the said amount shall be paid to her legal heirs. If the fine is not deposited, within the stipulated period, the defaulting appellant/appellants, as the case may be, shall undergo the sentence of 18 months R.I. imposed by me in default of payment of fine. The fine shall also be accepted by the trial Court on production of a certified copy of this Judgment, which in case an application is preferred, shall be issued within 8 weeks from today. Appeal partly allowed.