JUDGMENT 1. This is a joint appeal by the accused persons against the judgment and order dated February 25, 1994 passed by learned Sessions Judge, Jhalawar in Sessions Case No. 10/1991. The appellant Ram Kumar has been convicted under Sections 302 and 324 IPC. while the appellant Dwarika Lal has been convicted under Section 302 read with Section 34 and 324 read with section 34 IPC. The appellant Ram Pal has been acquitted of the charge under section 302 IPC, but convicted under Section 323 and 324 read with 34 IPC. Appellants Ram Kumar and Dwarika Lal were sentenced to undergo for life imprisonment and pay a fine of Rs.2,000/- each under Sections 302 or 302/34 IPC respectively, while under Sections 324 or 324/34 IPC they were sentenced to suffer rigoruous imprisonment for six months and pay a fine of Rs.250/- each. In default of payment of fine under first count to further undergo rigorous imprisonment for six months and under second count to undergo simple imprisonment for 15 days. The appellant Ram Pal was given the benefit of probation under Section 4 of the Probation of Offenders Act. 2. The facts of the case need not be stated in detail as the learned counsel, appearing for appellants restricted his argument on the question of offence committed by the appellants Dwarika Lal and Ram Kumar. As per prosecution case, the incident had taken place at 5.30 or 6.00 p.m. on October 31, 1990 when the accused and members of the complainant party were working in their respective fields, which adjoin each other. It is alleged that on common dol of the fields there was a bush which was cut by members of the accused party which resulted in assault to them by the accused. Deceased Prabhu Dayal was present on the well at that time. He came on the spot to pacify the dispute but he too was assaulted by the accused persons. As per the prosecution, the appellant Ram Kumar and Dwarika Lal assaulted him with Dhariva while Ram Pal appellant gave lathi blows. The prosecution case further Is that Prabhu fell down on, sustaining injuries and appellant Ram Kumar Sprinkled acid on this body from a tin. Ramesh Chand, complainant and PW 4 Harivallabh had also sustained injuries in the incident. 3. The prosecution case further Is that Prabhu fell down on, sustaining injuries and appellant Ram Kumar Sprinkled acid on this body from a tin. Ramesh Chand, complainant and PW 4 Harivallabh had also sustained injuries in the incident. 3. Parcha Bayan of Ramesh Chand was recorded at 9.30 p.m. on 31st October, 1990 by A.S.I. Lal Chand on the basis of which Crime was registered under Sections 307, 326, 324 and 323 read with Section 34 IPC. The injuries of Prabhu Dayal were examined by Dr. Ramesh Chand Dubey (PW 8). Medical Officer, Khanpur on October 31st, 1990. In all he found 17 injuries on his person out of them injuries Nos. 1 to 5, 14, 15, 16 and 17 were caused by sharp edged weapon while remaining injuries were due to burns from the acid. As per the statement of Dr. Ramesh Chand Dubey, at the time of admission of the injured Prabhu Dayal, his general condition was poor. The blood pressure was 80/60 while pulse rate was 120 per minute. According to him his life was in danger. On account of his critical condition, he was referred to SRJ Hospital, Jhalawar for further treatment. Injuries of Hari Vallabh and Ramesh Chand were also examined which were simple in nature. The Doctor has further stated that none of the injuries sustained by Prabhu Dayal was sufficient to cause his death though cumulatively they were sufficient to cause his death. 4. Prosecution case further is that Prabhu Dayal was admitted in SRG Hospital, Jhalawar on 1st November, 1990. Dr. Kamal Sharma had admitted him and he was treated by Dr. Subhash Mehta, Dr. Pathak and Dr. Khorsiya. However, Prabhu Dayal died on November 20, 1990 and post mortem of his dead body was conducted by PW 12 Dr. G.S. Chauhan, who was Medical Jurist in SRG Hospital, Jhalawar. According to the opinion of the doctor, that cause of death was multiple ulcer and infection to the burn injuries as septicemia had developed which caused shock and syncope. 5. Learned counsel, appearing for the appellants, seriously contended that taking into consideration the totality of the circumstances. The offence under Section 302 or 302/34 IPC was not made out against the appellant Ram Kumar and Dwarika Lal. 5. Learned counsel, appearing for the appellants, seriously contended that taking into consideration the totality of the circumstances. The offence under Section 302 or 302/34 IPC was not made out against the appellant Ram Kumar and Dwarika Lal. Learned counsel contended that the incident was an off suit of a small dispute between the parties which arose all of a sudden on cutting a bush which the accused persons were claiming to belong to them. It was further contended that nature of the injuries shows that the weapons were not used with force by Dwarika Lal and Ram Kumar appellants otherwise the injuries had been much more serious. Learned counsel also contended that neither the bed head ticket of the deceased Prabhu Dayal has been produced in Court nor the Doctor who admitted him in the hospital at Jhalawar or treated him for twenty days have been examined. Learned counsel contended that this was a serious gape in the prosecution evidence and in absence of this evidence, it cannot be said that septicemia/infection had taken place in normal course of the injuries or it was the result of any other intervening factor or negligence of the Doctor. Learned counsel, in support of his contention, placed reliance on the decision of the Supreme Court in Harish Kumar v. State (Delhi Administration), ( AIR 1993 SC 973 ) . In that case, the deceased had sustained four injuries and died after two days of the incident. The doctor had opined in that case that injury No. 2 was fatal and sufficient to cause death in the ordinary course of nature. However, the prosecution did not lead evidence and material about the nature of the treatment given to the deceased during two days he survived their Lordship observed that there was time gap between infliction of the injuries till the date of death, which was two days, and that there was no sufficient material about the nature of the treatment given to the deceased during these two days. On the basis of this lacuna, it was observed that though the injury had resulted in the death of the deceased, it could not be said conclusively that it was sufficient to cause his death. Accordingly, their lordships scaled down the offence from 302 IPC to 304 part II IPC. 6. On the basis of this lacuna, it was observed that though the injury had resulted in the death of the deceased, it could not be said conclusively that it was sufficient to cause his death. Accordingly, their lordships scaled down the offence from 302 IPC to 304 part II IPC. 6. In the instant case, undisputedly, the incident was an off suit of a petty dispute between the parties on cutting a bush which was being claimed by accused persons to belong to them None of the injuries has been opined as sufficient in the ordinary cause of nature to cause the death and the nature of the injuries also do not suggest that much force was used by the assailants while inflicting Dhariya blows. Then, after the incident, the injured Prabhu Dayal was shifted at Jhalawar and from the statement of Dr. G.S. Chauhan it is clear that his condition was not very bad. From 1st November, 1990 to 20th November, 1990, till his death had taken place, no material was produced on record to show as to how he was treated and what was his condition during that period. This possibility cannot be ruled out that during this intervening period septicemia might have developed for some other factor, which contributed in causing death of the deceased. Then, the cause of septicemia is also not available on record. Dr. G.S. Chauhan has admitted that on account of burns septicemia was not possible if immediate treatment was provided to the patient. Thus, taking into consideration the totality of the circumstances and the time gap between the time of the incident till the date of death and lacking of sufficient material on record about nature of treatment given to the deceased from 1.11.1990 to 28.11.1990, we are of the opinion that it cannot be said conclusively that any of the injury or injuries were sufficient to cause his death in ordinary course of the nature. Accordingly, in our opinion, the offence would be one under Section 304 part II IPC instead under Section 302 IPC. 7. Consequently, we allow the appeal filed by the appellants Dwarika Lal and Ram Kumar in part. Their conviction under Section 302 or 302 read with Section 34 IPC is, set-aside; instead they are convicted under Section 304 part II read with Section 34 IPC for the death of Prabhu Dayal. 7. Consequently, we allow the appeal filed by the appellants Dwarika Lal and Ram Kumar in part. Their conviction under Section 302 or 302 read with Section 34 IPC is, set-aside; instead they are convicted under Section 304 part II read with Section 34 IPC for the death of Prabhu Dayal. We also modify the sentence of imprisonment of life any payment of fine of Rs.2,000/- to sentence of rigorous imprisonment for seven years and fine of Rs.1C.000/- each. In default of payment of fine, each of the two appellants Dwarika Lal and Ram Kumar shall undergo further imprisonment for one year. In case, the amount of fine is recovered, the same shall be paid to the legal heirs of Prabhu Dayal deceased and steps shall be taken by the trial Court in this connection. Their conviction under Section 324 or 324/34 IPC and sentence of six months rigorous imprisonment and fine of Rs.250/- are maintained. However, the sentences of imprisonment under both counts shall run concurrently. 8. The appeal filed by appellant Ram Pal is, dismissed. *******