JUDGMENT 1. - The appellants Kaptan Singh, Shiv Singh and Bijendra have preferred this appeal against the impugned judgment and order dated March 24,1995 of the learned Additional Sessions Judge, Bayana in Sessions Case No. 82 of 1993, whereby the appellant were convicted as under: Kaptan Singh u/s. 302 IPC Life imprisonment and fine of Rs. 500/-in default of payment of fine to suffer 6 months imprisonment. u/s. 325 IPC One year Rl and fine of Rs. 500/- in default of payment of fine to suffer 6 months Rl. u/s. 323 IPC Six months Rl. Shiv Singh u/s. 302/34 IPC Life imprisonment and fine of Rs. 500/-in default of payment of fine to suffer 6 months imprisonment. u/s. 325/34 IPC One year Rl and fine of Rs. 500/- in default of payment of fine to suffer 6 months Rl. u/s. 323 IPC Six months Rl. Brijendra u/s 302/34 IPC Life imprisonment and fine of Rs. 500/-in default of payment of fine to suffer 6 months imprisonment. U/S. 325 IPC One year Rl and fine of Rs. 500/- in default of payment of fine to suffer 6 months Rl. U/S. 323 IPC Six months Rl. All the sentences were ordered to run concurrently. 2. Brief re'sume' of the facts is that on June 30, 1993 one Gopichand son of Deep Chand inhabitant of Nagladevia instituted FIR with the Police Station Roopwas District Bharatpur stating therein that at about 4.00 p.m earlier in the day his sister-in-law Vimla had gone to the Hand Pump situated in the Colony where they live for collecting water. There she left one 'Lotta' and to bring it she again went back to the Hand Pump, where Kaptan Singh, Shiv Singh, Devendra, Babu, Om Prakash, Bijjo, Sheela wife of Bijendra Singh. Javitri were present and on Vimla enquiring the whereabout of Lotta' Shiv Singh and Bijendra threw her on the ground and beat her Darkash, Darap Singh. Deep Chand, Batasia, Mohan, Shankar and others intervened to save her. they were also attacked and beaten by the accused appellants and others persons with lathies and farsas. They all fainted at the place of the incident and they alleged to have taken the silver Kaundhani (belt) of Vimla and wrist watches of Prakash and Darap Singh. The police registered FIR No. 174/1993 under sections 147, 323, 379 IPC and investigation commenced. They all fainted at the place of the incident and they alleged to have taken the silver Kaundhani (belt) of Vimla and wrist watches of Prakash and Darap Singh. The police registered FIR No. 174/1993 under sections 147, 323, 379 IPC and investigation commenced. Site plan was drawn, statements of the witnesses under section 161 Cr.PC. were recorded and injuries of the injured were medically examined. Maharani was admitted to the Hospital owing to the injuries sustained by her in the incident but died on July 2, 1993, consequently the offences registered by the police were altered under sections 147, 148, 149, 302, 325, 323 and 379 IPC. 'Lotta' said to be the cause of entire incident was recovered at the instance of accused appellant Kaptan Singh on the basis of information given by him under section 27 of the Evidence Act. Charge sheet was filed and the case was committed to the learned Sessions Judge Bharatpur wherefrom it was transferred to the Court of Addl. Sessions Judge Bayana. Charges under sections 302, 325 and 320 IPC were framed against the accused appellants and other co-accused, who denied the charge and claimed trial. The prosecution examined as many as 19 witnesses in support of its case. Statements of the accused persons under section 313 Cr.PC. were recorded. The accused did not produce any evidence in defence. The learned trial court after hearing the arguments acquitted the co-accused Babu Singh, Prahlad, Omprakash, Sheela, Vijjo and Javitri and convicted the accused appellants as indicated here in above. 3. The Division Bench of this court released the accused appellant Bijendra on interim bail but he absconded and standing warrants have been issued against him by this court and proceedings under section 446 Cr.RC. have also been initiated. Accused appellants Kaptan Singh and Shiv Singh are in Jail. Keeping in view the law laid down in Bani Singh and others v. State of UP ( AIR 1996 SC 2439 ) , this court listed the instant appeal for hearing on merits. 4. Mr. S.R. Bajwa, learned Senior Counsel canvassed that even according to the prosecution version when the occurrence started Maharani was no where in the picture. There was no animosity against her. There could not have been even a passing though of causing any injury to Maharani. She appeared on the scene after the accused persons assaulted Vimla. 4. Mr. S.R. Bajwa, learned Senior Counsel canvassed that even according to the prosecution version when the occurrence started Maharani was no where in the picture. There was no animosity against her. There could not have been even a passing though of causing any injury to Maharani. She appeared on the scene after the accused persons assaulted Vimla. In fact when Maharani attempted to intervene to save Vimla from further harm a blow with lathi was given by accused Kaptan Singh which hit on her head. Therefore there is nothing to indicate in the evidence that accused appellant Kaptan Singh ever intended to cause any injury to Maharani in the ordinary course of nature to cause death. Therefore the case against the appellant does not travel beyond offence under section 304 Part II IPC and appellants could not have been convicted under section 302 IPC. Reliance was placed on Gurmail Singh v. State of Punjab, ( AIR 1982 SC 1466 ) Randhir Singh v. State of Punjab, ( AIR 1982 SC 55 ) and Madhusudan Satpathy and others v. State of Orissa, ( AIR 1994 SC 474 ) . 5. On the other hand, learned Public Prosecutor supported the impugned judgment and contended that the accused appellants were rightly convicted. Clause Thirdly of Section 300 IPC would be attracted as the accused appellant Kaptan Singh inflicted the injury with such a force on the person of unarmed lady which resulted in her death. The intention of Kaptan Singh to inflict that particular bodily injury was to cause the death of Maharani. 6. We have reflected over the rival submissions and carefully scanned the material on record. 7. Undisputedly, the deceased Maharani sustained injury when she intervened. Maharani was medically examined on July 1, 1993. According to medical report Ex.R 30 she sustained following injuries : 1. Ecdysis 3 cm. x 1 cm. Rt. upper eye lid margin Simple Blunt. 2. Contusion with laceration 3 cm. x 2 cm. skin deep Top of Vertax (Skull) Opinion reserved. X-ray advised for injury No. 2. 3. Red Bruise 5 cm. x 2 cm. Bet. both Nipple Chest. Simple Blunt. 8. On July 2, 1993, after perusing her X-ray report of the injury No. 2 Radiographer Dr. upper eye lid margin Simple Blunt. 2. Contusion with laceration 3 cm. x 2 cm. skin deep Top of Vertax (Skull) Opinion reserved. X-ray advised for injury No. 2. 3. Red Bruise 5 cm. x 2 cm. Bet. both Nipple Chest. Simple Blunt. 8. On July 2, 1993, after perusing her X-ray report of the injury No. 2 Radiographer Dr. B.K. Tiwari in M.L. X Ray report Dated July 2, 1993 opined that she sustained fracture of left parietal bone and injury No. 2 is grievous in nature and dangerous to life. Maharani died on July 2, 1993 and according to her post mortem report Ex.R 42 the cause of death was antemortem injury to the skull and brain. 9. Now we proceed to analyse the testimony of the prosecution witnesses. PW 1 Gopichand is the son of the deceased. He is informant eye witness. Darab PW 2 is also son of the deceased. He is injured eye witness. Vimla PW 3 is injured eye witness and daughter in law of the deceased. Deep Chand PW 4 is the injured eye witness and husband of the deceased Maharani. PW 5 Mohan Singh is the injury eye witness and son of the deceased. PW 6 Om Prakash is injured eye witness. PW 7 Badri has been declared hostile. PW 8 Hakim Singh is an independent witness. PW 9 Dr. Trilok Khandelwal, is a Radiologist who examined bone injury of deceased. PW 10 Dr. Ashwani Kumar examined injuries sustained by Batsiya, Vimla, Darab Singh and Om Prakash. PW 11 Batsiya is the injured eye witness and daughter in law of the deceased. PW 12 Nemi Chand is the motbir of inquest report. PW 13 Khubiram is the motbir of recovery of 'Lotta'. PW 14 Gotam Singh is also motbir of recovery of Lotta. PW 15 Soharan Singh is motbir of inquest report PW 16 Dr. Balkrishan Tewari, examined the injuries of Maharani and Deep Chand. PW 17 Jaipal Singh is a constable and formal witness. PW 18 Giriraj Prasad is the investigating officer. PW 19 Dr. Dhanroop Chand Mathur. conducted the post mortem of the dead body of Maharani. 10. A look at the statement of injured eye witness Vimla goes to show that the accused appellant Kaptan Singh was having farsa in his had whereas accused appellant Shiv Singh and Bijendra were having lathies. PW 18 Giriraj Prasad is the investigating officer. PW 19 Dr. Dhanroop Chand Mathur. conducted the post mortem of the dead body of Maharani. 10. A look at the statement of injured eye witness Vimla goes to show that the accused appellant Kaptan Singh was having farsa in his had whereas accused appellant Shiv Singh and Bijendra were having lathies. Injuries on the head have been attributed to Kaptan Singh and Shiv Singh. She states that Kaptan and Shiv Singh inflicted lathi blows on the head of Maharani, deceased her mother-in-law. Independent witness Hakim Singh PW 8 deposed that Maharani was intervenor and Shiv Singh and Kaptan Singh inflicted lathi blows on her person, which caused injuries on her head and eye. The same version has been repeated by other witnesses as stated here in above. Deceased Maharani sustained only three injuries one on left parietal and other two on left eye and on chest. Injury No. 2 which was on left parietal region was grievous and dangerous to life and Maharani died on account of this injury. The learned trial court after discussing the entire evidence was of the view that the fatai blow on the head was caused by Kaptan Singh and accused Bijendra and Shiv Singh shared common intention. 11. From the injuries found on the person of Maharani as detailed earlier, we get that except injury No. 2 on the head, all other injuries were simple in nature and inflicted on non vital part of the body. If really the three accused persons Kaptan Singh, Shiv Singh and Bijendra intended to cause death of deceased it was likely that they would have caused much more grievous injuries on the vital part of the body more so when they were armed with farsa and lathies. Considering this aspect of the matter and the nature of the injuries sustained by Maharani, we feel that the offence committed by Kaptan Singh for causing death of Maharani comes under section 304 Part II IPC and the accused Shiv Singh and Bijendra had shared common intention with accused Kaptan Singh and committed offence under Section 304 Part II read with section 34 IPC. We are unable to pursuade ourselves to agree with the submissions made by the learned Public Prosecutor that the instant case comes under Clause Thirdly of Section 300 IPC. We are unable to pursuade ourselves to agree with the submissions made by the learned Public Prosecutor that the instant case comes under Clause Thirdly of Section 300 IPC. In order to bring the case within clause Thirdly of Section 300 IPC it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. We are of the opinion that in the facts and circumstances of the case it cannot be said that Kaptan Singh intended to cause that particular bodily injury on the person of Maharani which in fact was found to have been caused. May be, the injury inflicted may have been found sufficient in the ordinary course of nature to cause death. It is difficult to say with confidence in the present case keeping in view the facts that accused Kaptan intended to cause that very injury which was found to be fatal. According to the prosecution version, the dispute was between accused appellants on one hand and Vimla on the other. The deceased Maharani was no where in picture. There was no animosity against her. Maharani appeared on the scene after the accused assaulted Vimla. When Maharani attempted to intervene to save Vimla, further blows by lathies were given by accused Kaptan Singh and Shiv Singh, one of which hit on her head. There is nothing to indicate in the evidence that Kaptan Singh ever intended to cause any injury to Maharani on account of malice. Thus we are of the considered view that clause Thirdly of section 300 IPC is not attracted in the instant case. 12. The above discussions, takes us to the final conclusion that all the accused appellants are guilty of the offence of committing culpable homicide not amounting to murder in prosecution of their common object. We therefore partly allow the appeal and set aside the conviction of the appellants under section 302, 302/34 IPC and modify the judgment of the learned trial court and convict the accused appellants as under: Kaptan Singh : under Sections 304 Part II IPC, 325 and 323 IPC. Shiv Singh : under sections 304 Part II/read with section 34 IPC. 325/34 IPC, and 323 IPC. Bijendra : under sections 304 Part II/read with section 34 IPC. 325 read with section 34 and 323 IPC. 13. Shiv Singh : under sections 304 Part II/read with section 34 IPC. 325/34 IPC, and 323 IPC. Bijendra : under sections 304 Part II/read with section 34 IPC. 325 read with section 34 and 323 IPC. 13. Looking to the fact that the appellants are found guilty of committing offence against an unarmed lady we are of the view that appellants should adequately compensate the members of the deceased's family for the offences committed by them. We therefore sentence the accused appellant as under: Accused appellant Kaptan shall suffer three years' regorous imprisonment under section 304 Part II IPC and shall pay a sum Rs. 30,000/-as fine. In default of payment of fine Kaptan Singh shall suffer rigorous imprisonment for two years more. For the offences under Sections 325 and 323 IPC the accused Kaptan shall under go imprisonment awarded by the learned trial Judge. Accused appellant Shiv Singh shall suffer three years' regorous 1 imprisonment under section 302 Part II IPC read with section 34 IPC and shall pay a sum Rs. 20,000/- as fine. In default of payment of fine Shiv Singh shall suffer rigorous imprisonment for two years more. For the offences under Sections 325 read with section 34 and 323 IPC the accused Shiv Singh shall ; under go imprisonment awarded by the learned trial Judge. Accused appellant Bijendra shall suffer three years rigorous imprisonment under section 304 Part II IPC read with section 34 IPC and shall pay a sum Rs. 20,000/- as fine. In default of payment of fine Bijendra shall suffer rigorous imprisonment for two years more. For the offences under Sections 325 read with section 34 and 323 IPC the accused Shiv Singh shall under go imprisonment awarded by the learned trial Judge. 14. The entire fine if realised shall be paid to the heirs of the deceased Maharani as compensation. All the sentence shall run concurrently. The accused-appellants Kaptan Singh and Shiv Singh are in Jail but the accused appellant Bijendra, who misused the liberty granted by this court should be arrested and sent to Jail to serve out the sentence. The appeal accordingly stands partly allowed with the aforesaid modification of sentence. *******