Honble GUPTA, J.–Bhoora and others having been convicted u/S. 302 r/w Sec. 34 IPC and sentenced to imprisonment for life by the learned Sessions Judge, Balotra - vide judgment dated 29.4.1980 have preferred this appeal. (2). The occurrence took place on 23.11.1979 in the morning. The facts are that flock of sheep and goats entered the field of Banka (deceased) and started ea- ting ``Pala (fodder). Banka and his son Amra (PW 1) drove the cattle and proceeded for the cattle pond. Seeing this, Bhoora accused came out of his Dhani having lathi in his hand. He followed Banka. Sensing some trouble Meergi (first informant) wife of Banka also followed them. When Banka and Amra alongwith cattle were going through the field of Girdhari, accused Bhoora, Himta and Roop Singh having lathis in their hands, reached there. They started giving beatings to Banka. Multan Mal resident of Jasol also saw the accused giving beatings. He tried to intervene but the accused continued to give beatings. After giving merciless beating, they went away. The FIR was lodged by Meergi at 6.00 p.m. on the same day at Police Station, Balotra in which delay was also explained. It was stated that Meergi could not catch bus and therefore, she had to walk on foot. On this report, a case u/S. 302 r/w Sec. 34 IPC was registered. The police rushed to the spot, inspected the site and interrogated the witnesses. The post-mortem-examination was conducted by Dr. Badrilal Choudhary (PW 5). He prepared the report Ex.P/5. The police recovered the lathis at the instance of the accused. After the completion of the investigation, a challan was submitted. (3). The learned Sessions Judge framed charges u/Ss. 302 & 302/34 IPC. The prosecution examined PW 1 Amra, PW 2 Smt. Meergi, PW 3 Multanmal, PW 4 Doongar, PW 5 Dr. Badrilal Choudhary, PW 6 Deeparam, PW 7 Padma, PW 8 Moda, PW 9 Kishanlal, PW 10 Govind Singh, PW 11 Bhanwar Singh, PW 12 Mag Singh and PW 13 Sheshraj. Accused in their statements u/S. 313, Cr.P.C. denied the correctness of the statements of the witnesses. Bhoora accused pleaded that because of the boundary dispute he has been falsely roped in the case. Himata pleaded that because of enmity he has been implicated. Accused in their statements u/S. 313, Cr.P.C. denied the correctness of the statements of the witnesses. Bhoora accused pleaded that because of the boundary dispute he has been falsely roped in the case. Himata pleaded that because of enmity he has been implicated. Roop Singh pleaded that he had filed a case against deceased Banka as he had given beatings to his servant and hence he has been implicated in this case. Accused examined DW 1 Harchand, DW 2 Khet Singh and DW 3 Idan Singh. The learned Sessions Judge found that all the accused had given merciless beatings to Banka in furtherance of common intention and, therefore they have committed offence u/S. 302 r/w Sec. 34 IPC. He eventually convicted and sentenced them as above. (4). We have heard the arguments of the learned counsel for the appellants and the learned Public Prosecutor appearing for the State respondent and perused the record of the case. (5). Mr. Singhi, learned counsel for the appellant did not seriously contest these findings of the trial Court that Banka had met homicidal death and the three accused had taken part in the beatings, and we think rightly so. (6). PW 5 Dr. Badrilal Choudhary has deposed that there were following ante- mortem injuries on the person of Banka:- 1. Contusion 10" x 1" left supra scapular region. 2. Contusions 3 in number 6" x 1" right scapular region. 3. Lacerated wound 1/2" x 1/2" exposing right pinna and cartilage. 4. Contusion 1" x 1/2" right of nose and lip. 5. Contusion 1/4" x 1/4" bridge of nose. 6. Contusion 2" x 2" right post. 7. Lacerated wound 2" x 1/4" bone deep right forearm upper 1/3 post. 8. Contusion 2" x 2" right forearm lower 1/3 post. 9. Abrasion 1/4" x 1/4" left forearm middle 1/3 post. 10. Contusion 1" x 1" dorsal aspect of left hand. 11. Contusion 1" x 1" dorsal aspect of right hand. 12. Contusion 6" x 3" left thigh middle 1/3. 13. Contusion 3" x 2" left knee. 14. Contusion 2" x 2" left thigh upper 1/3. 15. Lacerated wound 2" x 1/4" x 1/4" left chin middle 1/3. 16. Multiple contusions over lapping each other on entire right buttock 1 ft. x 1 ft. 17. Contusions 2 in number 6" x 1" each crossing each other on left side of back. 18. 14. Contusion 2" x 2" left thigh upper 1/3. 15. Lacerated wound 2" x 1/4" x 1/4" left chin middle 1/3. 16. Multiple contusions over lapping each other on entire right buttock 1 ft. x 1 ft. 17. Contusions 2 in number 6" x 1" each crossing each other on left side of back. 18. Contusion 4" x 1" on left intra scapular region. (7). He has further deposed that on dissecting the body, he found that there was fracture of right femur and because of the haemmorhage from the fracture, the deceased went in shock and he died. There is nothing in the cross-examinationof Dr. Choudhary to disbelieve him. By his testimony it is fully established that Banka Banka had suffered multiple injuries including fracture at the buttock and he died because of those injuries. It is, thus, manifest that Banka had met the homicidal death. (8). PW 1 Amra who is the son of deceased and PW 2 Meergi who is the wife of the deceased claim to have witnessed the occurrence. PW 1 Amra was going alongwith his father taking the cattle to the cattle pond. He deposes that when they reached the field of Girdhari taking the cattle, the three accused having lathis in their hands came there and they started beating his father. Similar is the statement of Meergi (PW 2) who deposes that sensing the trouble she had followed her hus- band and when her husband was in the field of Girdhari having cattle with him, the three accused persons having lathis in their hands, reached there and they gave beatings to her husband. Both these witnesses have been cross-examined at length. Nothing substantial has emerged in their statements as to disbelieve them. Multan Mal (PW 3) also deposes to have seen the occurrence of beating. According to him he was going towards his village, when he saw that all the three accused persons were landing lathi blows to Banka. He requested them not to do so but they did not stop giving beatings. He further deposes that after the accused left the scene of occurrence he went near Banka, but by that time Banka was almost dead. The statement of Multanmal cannot be disbelieved on the mere ground that he be- longed to different villages. Multanmal deposes that he used to go to the Dhanis of the accused for purchasing ``cV. He further deposes that after the accused left the scene of occurrence he went near Banka, but by that time Banka was almost dead. The statement of Multanmal cannot be disbelieved on the mere ground that he be- longed to different villages. Multanmal deposes that he used to go to the Dhanis of the accused for purchasing ``cV. He states that he knew the accused as well as Banka from before. The learned Sessions Judge has rightly believed that statement of Multanmal (PW 3). The defence suggestion that this witness used to treat Banka as his brother is not proved on record by any evidence whatsoever. (9). In our opinion, on the basis of the direct evidence the learned Sessions Judge has rightly found that the three accused had given beatings by lathis to Banka and as a result of the lathi blows he died. (10). Now the important point that arises for consideration is whether on the facts established, offence u/S. 302 r/w Sec. 34 IPC is proved. (11). The contention for the learned counsel for the appellants was that according to Amra the three accused persons had reached the place of occurrence from different directions and therefore, it cannot be inferred that they had common intention of giving beatings. Apparently, this contention is attractive but cannot be accepted looking to the facts of the case. According, to Meergi (PW 2) when her husband and son were driving cattle to the cattle pond, accused Bhoora came out of the Dhani having lathi in his hand and stating that he would kill him and followed her husband. No cross-examination has been directed to Meergi on this point. She states in her cross-examination that all the three accused had come out of the Dhani of Bhoora having lathis in their hands. It is, thus, obvious that on seeing Banka taking cattle to the cattle pond the three accused persons having lathis in their hands started from their Dhani. After Banka covered the distance of about one and a half mile, the three accused surrounded him it is immaterial that they reached the spot from different directions. It appears that the three accused did not want to leave it to chance and in order to surround Banka, came from different sides so that he may not run away. After Banka covered the distance of about one and a half mile, the three accused surrounded him it is immaterial that they reached the spot from different directions. It appears that the three accused did not want to leave it to chance and in order to surround Banka, came from different sides so that he may not run away. The very fact that the three accused persons started from Dhani having lathis in their hands and they reached the spot at one and the same time and started giving beatings to Banka simultaneously leads us to infer that they had common intention of giving beatings to Banka. The dominant intention of the accused might be to rescue the cattle, however, the facts clearly reveal that they had shared common intention to cause injuries to Banka. The accused are, therefore, liable to be convicted with the aid of Sec. 34 IPC. (12). The further contention of Mr. Singhi was that accused did not cause injuries on the vital parts of Banka and it is also not clear that who of the three accused caused the grievous hurt. According to him, the accused can be found to have committed the offence u/S. 325 r/w Sec. 34 of IPC or at the most u/s. 304 Part II IPC. He placed reliance on the case of Molu & Ors. vs. State of Haryana (1), Chhutan vs. State of M.P. (2), Ranjha vs. State of Punjab (3), Doongar Singh vs. State of Raj. (4), and Shri Narain vs. State (5). (13). As against this, the learned Public Prosecutor contended that the injuries caused by the three appellants were sufficient in the ordinary course of nature to cause death as per the opinion of the medical officer and therefore, the accused have committed offence u/S. 302 r/w Sec. 34 IPC. He placed reliance on the cases of Anda vs. State of Raj. (6) and State of A.P. vs. Rayawarapu (7). (14). We have given matter our anxious consideration. In all the authorities cited at the Bar except the case of Sri Narain, the question that came up before the Honble Apex Court and this Court was whether the act of the accused fell u/S. 300 IPC particularly its thirdly clause punishable u/s. 302 IPC or whether the accused committed offence punishable u/S. 304 Pt. II IPC. (15). In all the authorities cited at the Bar except the case of Sri Narain, the question that came up before the Honble Apex Court and this Court was whether the act of the accused fell u/S. 300 IPC particularly its thirdly clause punishable u/s. 302 IPC or whether the accused committed offence punishable u/S. 304 Pt. II IPC. (15). The medical evidence indicates that Banka had suffered about 22 injuries in all. Out of them 3 were lacerated wounds, one was abrasion and the remaining injuries were contusions. One grievous hurt was suffered by Banka which was on his right thigh. All the injuries were caused either on the scapular region or arms or legs. Looking to the parts of the body chosen by the accused for causing injuries, it can safely be said that the three accused had no intended to cause the death of Banka. If they had shared the intention of causing death of Banka, they would have caused injuries on his vital parts. Thus, certainly the act of the accused does not fall under the first clause of Sec. 300 IPC. (16). There is no merit in the contention of the learned counsel for the appe- llants that the act of the accused falls u/S. 325, IPC. The facts of the case of Sri Narain (supra) relied on in support of this contention were poles apart. In that case the quarrel was going on between the accused and one Ramchandra. The deceased had intervened in the occurrence and the accused did not the interference by him and they gave a lathi blow each on the head of the deceased. It is in the special cir- cumstances of the case that the accused were convicted for causing grievous hurt only. (17). The center point for consideration is whether the act of the accused comes under clause thirdly of Sec. 300 IPC. We may read the relevant part of Sec. 300 IPC:– 300. Murder.–Except, in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or– 2ndly–x x x x x x x x x 3rdly–If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. 4thly–x x x x x x x x x (18). The thirdly clause of Sec. 300 speaks of intention to cause bodily injury/ injuries which are sufficient in the ordinary course of nature to cause death. The sufficiency of high probability of death in the ordinary course of nature brings the case under thirdly clause of Sec. 300 IPC. This is what has been observed by their Lordships in the case of Anda (supra). In that case the deceased has suffered over 30 injuries. There were multiple fractures of right and left, metacarpal bones of both the hands, compound fractures of tibia and fibulas. It was also noticed that there were as many as 16 lacerated wounds at the arms and legs and hematoma on the right forehead and a big bruise on the middle of chest. When the deceased was admitted in the hospital, he was bleeding profusely from his injuries. The Honble Apex Court noticing these facts observed that merciless beating was given to the deceased and, therefore, the act of the accused was sufficien t to bring the case within clause thirdly of Sec. 300 of IPC. (19). The facts of the case of State of Andhra Pradesh vs. R. Punnayya (supra) were also not very different from the facts of the case of Anda (supra). In that case also there were 19 injuries found on the person of the deceased and 9 of them were fractures. Following the ratio of the case of Anda, the Honble Apex Court held that the case would fall under clause thirdly of Sec. 300 IPC. (20). Now we may look at the authorities cited on behalf of the appellants. In the case of Molu (supra) there were two deceased. One of them had suffered three punctured wounds 6 lacerated wounds, bruises and abrasions. The other deceased had suffered 16 injuries which included 8 lacerated wounds and there was fracture of right ulna. Keeping in view that all these injuries were caused by lathis and were not caused on any vital part of the body, it was held that the case fell u/S. 304 Part II IPC. (21). In the case of Chhutan (supra) the deceased had suffered as many as 8 injuries and out of them there were fractures of tibia and fibula bones and also a lacerated wound on the occipital region. (21). In the case of Chhutan (supra) the deceased had suffered as many as 8 injuries and out of them there were fractures of tibia and fibula bones and also a lacerated wound on the occipital region. The Honble Supreme Court held that the case fell u/s. 304 Part II IPC. (22). In the case of Ranjna (supra) the deceased had suffered 8 injuries, two of them were lacerated wounds. The deceased had also suffered fractures of three ribs. The Honble Apex Court held that the offence committed was u/S. 304 Pt. II IPC. (23). In the case of Doongar Singh (supra) the deceased had suffered as many as 53 injuries and his both side ribs were found fractured. Distinguishing the case of Anda, this court convicted the accused u/S. 304 Part II IPC. (24). Keeping in view the above authorities, it may be deduced that where the injuries are caused on non-vital parts only may be the number of injuries is more-the weapons used are not heavy and only one or two injuries are found to be of grievous nature, the offence committed is punishable u/S. 304 Part II IPC provided there are no other circumstances which bring the case under Clause thir- dly of Sec. 300 IPC. (25). In the instant case, as noticed above, no injury was caused on the vital parts and only one injury was found to be of grievous nature and the deceased has suffered only 3 lacerated wounds. In such circumstances, we are of the view that the act of the accused does not fall under thirdly clause of Sec. 300 IPC. However, it has to be inferred that the accused while causing injuries had the knowledge that the injuries might prove fatal and therefore, their act falls u/S. 304 Part II IPC. The facts of this case are almost similar to the facts of the case of Molu (supra). In the instant case also though the number of the injuries is 22 but out of them there wasonly one grievous injury caused on thigh. The lacerated wounds were also only three in number. Following the ratio of the case of Molu, it can be found that the case falls u/S. 304 Part II IPC. The cases of ``Anda and ``R. Punayya are distinguishable. The lacerated wounds were also only three in number. Following the ratio of the case of Molu, it can be found that the case falls u/S. 304 Part II IPC. The cases of ``Anda and ``R. Punayya are distinguishable. As already stated, in the case of Anda there were over 30 wounds and the deceased had suffered number of fractures and as many as 16 lacerated wounds and even hematoma on the right fore head. Similarly, in the case of R. Punayya there were 19 injuries and out of them 9 were fractures. Therefore, there was sufficiency of a very high probability of death in the ordinary course of nature in those cases. (26). As a result of the foregoing discussion, the appeal is partly allowed. The conviction of the appellants u/s. 302 r/w Sec. 304 IPC being not sustainable, they are acquitted of the offence u/S. 302 r/w Sec. 34 IPC. The sentence awarded is set aside. Instead appellants Bhoora, Himta and Roop Singh are convicted u/S. 304 pt. II IPC. Each of them shall undergo rigorous imprisonment for five years and pay a fine of Rs. 1,000/-. In default of payment of fine they shall undergo 6 months R.I. more. (27). The appellants are given 4 weeks time to surrender before the learned Sessions Judge. If they fail to surrender as aforesaid, the learned Sessions Judge shall take steps to apprehend them and send them to prison to undergo remaining part of the sentence.