JUDGMENT 1. - Ghanshyam, Sahib Lal and Rampal, through this appeal under section 374 Cr.P.C. call in question the judgment dated 23.8.1995 of the learned Additional Sessions Judge Baran, convicting and sentencing each of them to undergo imprisonment for life and a fine of Rs. 100/-, in default, one month imprisonment under section 302 IPC and one year R.I. under section 323 IPC. 2. The brief facts of the case are these. Dhanna Lal lodged a report (Ex.P/12) on 8.9.1991, stating that as accused-Ghanshyam, Ram Pal and Sahib Lal did not allow Nemi Chand S/o Suraj Mal Meena to plough the field, Suraj Mal went there at about 1.30 p.m. and asked the accused persons as to why did they not allow his son to plough the land, whereupon the accused who were armed with axe, khutia and dharia caused multiple injuries to Suraj Mal causing his death. On this report, a case under sections 302 & 224 IPC was registered at Police Station Siswali. During investigation the police inspected the site, interrogated the witnesses and got the post-mortem of body of Suraj mal done by Dr. R.K. Saxena PW 4. After the completion of the investigation the police submitted a challan. 3. The learned Sessions Judge vide order dated 11.2.1992, framed charges under section 302, 323/324 IPC against all the three accused persons who pleaded not guilty. The prosecution examined as many as 20 witnesses, out of whom PW 1 Mahavir, PW 2 Hukam Chand, PW 3 Ram Gopal, PW 5 Jagannath, PW 6 Ram Prasad, PW 8 Badri Lal, PW 17 Ram Lal and PW 18 Banshi Lal are the motbirs, who were associated by the police during investigation. PW 4 Dr. RK. Saxena had performed autopsy on the body of Suraj Mal and had prepared the post-mortem report Ex.P/6 and also the injury report of Kanhaiyalal Ex.P/7 PW 11 Kanhaiyalal, PW 12 Chhotu Lal, PW 13 Radhey Shyam, PW 14 Bachhraj PW 15 the eye-witnesses. PW 7 had scribed the FIR Ex.P/12. PW 9 Dhanna Lal had produced the FIR at the Police Station. PW 19 Bhanwar Lal was examined to prove that the land of the accused persons was mortgaged to Suraj Mal-deceased. PW 20 Gopal Singh was the Investigating Officer. Accused in their statements under section 313 Cr.P.C. denied accusation. They did not examine any witness in defence. 4. PW 9 Dhanna Lal had produced the FIR at the Police Station. PW 19 Bhanwar Lal was examined to prove that the land of the accused persons was mortgaged to Suraj Mal-deceased. PW 20 Gopal Singh was the Investigating Officer. Accused in their statements under section 313 Cr.P.C. denied accusation. They did not examine any witness in defence. 4. Learned Additional Sessions Judge held that Suraj Mal had met homicidal death. He further held that the accused were the persons who had caused multiple injuries to Suraj Mal. Holding that the fatal injury was caused by Ram Pal, the learned Judge convicted him under section 302 IPC. The two other accused were convicted under section 302 IPC with the aid of Section 34 IPC. 5. Mr. Naqvi, learned counsel for the appellants, was fair enough to concede that by the prosecution evidence it is proved on record that Suraj Mal had died as a result of the injuries suffered by him in the occurrence. His serious contention was that looking to the weapon used, and the nature of the injuries suffered by the deceased, the case does not travel beyond Section 304 Part H IPC. Pointing out that accused-Ram Pal while using the axe did not cause injury from its sharp side, instead he chose to inflict blow from the blunt side, he argued that the intention of this accused was not to cause that death of Suraj Mal. His further contention was that there is no evidence on record that the land was in the possession of the deceased and as the accused were in possession of the field, it should not be inferred that the accused had formed common intention to cause the death of Suraj Mal. He submitted that since Suraj Mal was interfering in the rights of the accused persons, and the injuries were caused without premeditation, it should be held that each accused is liable for his own act. 6. The learned Public Prosecutor, on the other hand, tried to support the judgment of the trial Court. 7. We have gone through the evidence produced in the case, PW 11 Kanhaiya Lal is the injured eye-witness. His field was situate near the field where the occurrence had taken place. 6. The learned Public Prosecutor, on the other hand, tried to support the judgment of the trial Court. 7. We have gone through the evidence produced in the case, PW 11 Kanhaiya Lal is the injured eye-witness. His field was situate near the field where the occurrence had taken place. He deposes that Suraj Mal had asked the accused persons as to why they man-handled his son and they should allow him to plough the land or they repaid the loan, on which, all the three accused caused injuries to him. Giving the details of the occurrence, he says that Ghanshyam had inflicted a blow by dharia on the jaw of Suraj Mal and thereafter Ram Pal and Sahib Lal caused injuries to his head and cheek. He further says that when he tried to intervene, Ghanshyam caused injuries to him by Dharia and other accused persons also inflicted blows to him. Kanhaiya Lal admits that he is a relation of the deceased, but this can not be a ground to see his testimony with suspicion. Kanhaiya himself suffered injuries in the occurrence. This ensures that he had witnessed the occurrence. Of course, none of the injuries suffered by him was caused by sharp-edged weapon, whereas, Kanhaiyalal says that Ghanshyam had given a dharia blow to his head, yet there is no reason to disbelieve him. The exaggeration does not render him unreliable witness. By the evidence of Kanhaiyalal it is amply proved that when Suraj Mal had gone to talk the accused persons in the field they caused injuries to him. By his testimony, it is fully established that accused Ram Pal had dealt a blow on the left side of head of Suraj Mal by the reverse side of the axe and Ghanshyam had given a dharia blow on his left mandibular region. 8. The post-mortem report Ex.P/6 prepared by Dr. R.K. Saxena indicates that there were 14 injuries on the person of Suraj Mal, out of which 12 were contusion and abrasions, injury No. 1 was incised wound on the jaw and injury No. 3 a lacerated wound on the left side of his head. In our opinion, the medical evidence fully corroborates the testimony of Kanhaiya Lal. 9. The prosecution had also relied on the testimony of PW 12, Chotu Lal, PW 13 Radhey Shyam, PW 14 Bach Raj and PW 16 Ram Kedar. In our opinion, the medical evidence fully corroborates the testimony of Kanhaiya Lal. 9. The prosecution had also relied on the testimony of PW 12, Chotu Lal, PW 13 Radhey Shyam, PW 14 Bach Raj and PW 16 Ram Kedar. However, from the facts which have emerged in their cross-examination, it is borne out that they had not seen the occurrence of causing injuries to Suraj Mal, and they had reached the place of occurrence immediately after Suraj Mal had sustained the injuries. They had, of course, seen the accused causing injuries to Kanhaiyalal. By the testimony of these witnesses, it is established that they had seen Suraj Mal in injured condition and at that time the three accused persons armed with dharia, kiffitia and axe were causing injuries to Kanhaiyalal. By their evidence, the involvement of all the three accused persons in the occurrence is fully established. 10. It may be pointed that the FIR was lodged within two hours of the occurrence, in which the names of all the three accused were stated as the assailants. This fact leads credence to the prosecution version that all the three accused had taken part in the occurrence. 11. The trial Court has, therefore, rightly held that the three accused persons had taken part in the beatings of Suraj Mal and Kanhaiyalal and the death of Suraj Mal had occurred because of the injuries sustained by him in the occurrence. 12. Now the serious question to be considered is as to what offence has been committed by the three accused. The prosecution case was that the land had been mortgaged to Suraj Mal by the father of accused-Ghanshyam, but it is not established on record that the prosecution of the land had been handed over to Su raj Mal. Kanhaiyalal PW 11, who is neighbour no where says that the land was ever in possession of Suraj Mal before the date of occurrence. What he says is that prior to the incident, Nemichand had gone to the field of the accused and wanted ti) plough the same but the accused did not permit him to do so. This part of the evidence does not establish that Suraj Mal or Nemichand were already in possession of the land prior to the date of occurrence. What he says is that prior to the incident, Nemichand had gone to the field of the accused and wanted ti) plough the same but the accused did not permit him to do so. This part of the evidence does not establish that Suraj Mal or Nemichand were already in possession of the land prior to the date of occurrence. Kanhaiyalal admits that at the time, the occurrence had taken place, the three accused were grazing their bullocks in the field. 13. It is not in evidence that Nemichand had asked the accused persons while returning from the field that he would send his father there for settling the matter. Therefore, it has to be accepted that there was no occasion for the accused persons to have premeditated that they would cause the death of Suraj Mal when he reached there. 14. In any case, it has to be accepted that Suraj Mal was unarmed and had only requested the accused that they should not have beaten his son and should have allowed him to plough the field. There was therefore, no cause for the accused to give beatings to Suraj Mal. It is evident that on the request of Suraj Mal, all the three accused picked up the weapons and started giving beatings to Suraj Mal. This circumstance goes to prove that the three accused had shared common intention at least to cause injuries to Suraj Mal. 15. It is noticed that the main accused-Ram Pal, who had formidable weapon like Gandasi did not choose to use its sharp side. This circumstance goes to show that he had not intended to cause the death of Suraj Mal. It is also pertinent to note that Ghanshyam who was having a formidable weapon like dltaria did not cause any injury on the vital part of Suraj Mal and Sahib Ram did not use the sharp side of the Khutia. All these facts taken together go to establish that the accused had not shared common intention to cause the death of Suraj Mal, but they had shared the common intention only to cause injuries to him. 16. The fact that accused-Ram Pal had used the reverse side of the axe while causing blow, and did not repeat the blows on the head of the deceased, leads us to infer that he had not intended to cause his death. 16. The fact that accused-Ram Pal had used the reverse side of the axe while causing blow, and did not repeat the blows on the head of the deceased, leads us to infer that he had not intended to cause his death. In our opinion, the act of accused-Rampal causing blow on the head of the deceased comes in the definition of culpable homicide not amounting to murder punishable under section 304 Part II IPC. The trial Court's view that the act of the accused falls under section 302 is not sustainable. The facts, that Ram Pal avoided using sharp side of the axe and did not repeat the blows on the head, in the circumstances of this case, take out the case from the ambit of Section 302 IPC. 17. Corning to the offence committed by other accused persons, it may be stated that accused-Ghanshyam had caused grievous hurt by dharia to Suraj Mal. This accused has thus committed an offence punishable under section 326 IPC. Though Ghanshyam was not charged with this offence, yet there being a charge under section 302 IPC, there is no legal impediment in convicting him under section 326 IPC. 18. Sahib Lal was having Khutia. He did not use the sharp side of the weapon to cause injuries. Kanhaiya Lal deposes that Sahib Lal had inflicted injuries to him by wooden handle of Khutia. He further says that Ghanshyam had also beaten him by the wooden part of dharia. His further statement is that after Suraj Mal fell down, the accused persons had given beatings to Suraj Mal. As already stated, Suraj Mal had some injuries by blunt objects. There is no cause to disbelieve Kanhaiyalal in this regard. By his testimony, it is fully established that all the three accused had caused simple hurts to Kanhaiyalal as also to Suraj Mal. 19. As already found, the accused persons had developed common intention to cause injuries to Suraj Mal on the spot, and in furtherance of that common intention Ghanshyam had caused grievous hurt to Suraj Mal, Sahib Lal is, therefore, liable for the offence under section 326 IPC with the aid of Section 34 IPC. 20. Consequently, it is held that Rampal has committed an offence punishable under section 304 Part II IPC, Ghanshyam under sections 326 & 323 IPC, Sahib Lal under sections 326/34 & 323 IPC. 20. Consequently, it is held that Rampal has committed an offence punishable under section 304 Part II IPC, Ghanshyam under sections 326 & 323 IPC, Sahib Lal under sections 326/34 & 323 IPC. The trial Court has rightly convicted all the three appellants under section 323 IPC. 21. The quantum of sentence. Keeping in view all the facts and circumstances of the case, we think that a sentence of five years rigorous imprisonment for offence under section 304 Part II IPC and three years R.I. for the offence under section 326 IPC or 326/34 IPC shall meet the ends of justice. 22. The result, therefore, is that the appeal partly succeeds. While maintaining the conviction of the appellants under section 323, we vacate their conviction under section 302 or 302/34 IPC. Instead we convict Ram Pal under section 304 Part II IPC, Ghanshyam under section 326 and Sahib Lal under section 326/34, and sentence them as follows : (1) Ram Pal Under Section 304 Part II IPC five years R.I. and a fine of Rs. 100/-, in default, one month R.I. (2) Ghanshyam Under Section 326 IPC three years R.I. and a fine of Rs. 100/- in default, one month R.I. (3) Sahib Lal Under Section 326/34 IPC three years R.I. and a fine of Rs. 100/-, in default, one month R.I. The sentence passed under section 323 IPC is upheld.It is directed that all the substantive sentences of the appellants shall run concurrently.Appeal partly allowed. *******