Judgment N. N. MATHUR. J. ( 1 ) THIS appeal is directed against the judgment dated 127-1997 passed by the learned Sessions Judge, Hanumangarh convicting the appellant Roop Singh @ Jagroop Singh, nirmal Singh, Kor Singh and Gurmail Singh for offence under Sections 302/34: I. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 500/- and in default of payment to further undergo six months R. I. ( 2 ) ON 15-6-1984 at 10. 00 P. M. PW2 Madar Singh submitted a written report Ex. Plat police Station, Hanumangarh Junction, stating inter-alia that at about 6. 00 p. m. he was returning from the field alongwith his younger brother-Jaspal Singh and PWI Jaskaran Jaspal Singh was ahead of him at a distance of 2-1/2 Bighas. When his brother Jaspal Singh reached near the field of Gurnam Singh the accused Gurmail Singh, Roop Singh, Kor Singh and Nirmal Singh armed with Gandasis came out from a Kotha. Seeing them Jaspal Singh started running. Accused persons chased and caught hold of him. They assaulted him by Gandasis. On being challenged by them (complainant), the accused persons took the heels. They took Jaspal Singh in a tractor to the hospital at Hanumangarh Town, where doctor declared him dead. On this information police registered a case for offence under Section 302 read with Section 34, I. P. C. and proceeded with the, investigation. The police prepared inquest and send the dead body of Jaspal Singh for post-mortem. The recovery of Gandasis where made from each of the accused persons except Gurmail Singh. The Police was of the view that Gurmail Singh was not on the spot and therefore, laid the charge-sheet on 27-7- 1994, only against three accused persons, namely, Roop Singh, Kor Singh and Nirmal Singh, in the Court of Judicial Magistrate, 1st Class, Hanumangarh. On the same day a protest petition was submitted by the learned Counsel for the complainant. It was posted for arguments on 3-8-1994. The learned Magistrate after perusing the record and hearing the learned Counsel for the complainant and the learned Astt. Public Prosecutor took cognizance against all the four accused persons namely, Gurmal Singh. Roop Singh, Kor Singh and Nirmal Singh for offence under Section 302/34. I. P. C. ( 3 ) ALL the accused persons denied the charge and claimed trial. The learned Magistrate after perusing the record and hearing the learned Counsel for the complainant and the learned Astt. Public Prosecutor took cognizance against all the four accused persons namely, Gurmal Singh. Roop Singh, Kor Singh and Nirmal Singh for offence under Section 302/34. I. P. C. ( 3 ) ALL the accused persons denied the charge and claimed trial. The prosecution in support of the case examined 8 witnesses and produced certain documents. The accused persons in their statement under Section 313. Cr. P. C. denied the correctness of the prosecution evidence against them. The accused Gurmail Singh pleaded alibi and stated that on the date of incident he had gone to Goluwala Mandl for repairing of the tractor. The accused persons in defence examined 8 witnesses. On analysing the evidence the Trial Court found the charges proved against all the four accused appellants. Accordingly convicted each of them of offence under Section 302 read with Section 34. I. P. C. and sentenced as noticed above. ( 4 ) WE have heard learned Counsel for the parties and scanned the prosecution evidence carefully. PW 3 Dr. Rajendra Kumar Gupta stated that he conducted the post-mortem of the dead body of jaspal Singh and found following injuries on his person: 1. Swelling with Redless. 2 x itt left hand. (D)2. Lacerated wound 21/2ttx 1/8 x muscle deep on the Rt. leg Ant-post 1/3. 3. Incised wound 1,, 1/4 x muscle deep on the left leg upper 113rd Ant. 4. Incised wound 1 TTx 1/4tt x muscle deep left leg (M) 113rd lat. 5. Swelling with abrasion 2x 1 on left (III)6. Swelling with bruise 2 x 2tt on Rt. arm lower 1/3rd Ant. Bone 7. 7. Rt. ear. 8. Bruise 2 x 1 left arm let. 9. Bruise with Abrasion 1___1/2tt x _1tt left elbow let. 10. Swelling left forearm lower 3rd let radius bone fracture. 11. Lacerated wound itt x 1/4 x scalp deep Rt. frontal region. 12. Lacerated wound 11/2ttx 114 x scalp deep Rt. fronto parietal region. 13. Incised wound 1 3/4 x 3/8 x Bone deep left parietal region. 14. Incised wound 2/12 x 1/2 x bone fracture left parieto occipital region near mid-line. He proved post-mortem report Ex. P7. He found injuries No. 3. 4, 13 and 14 caused by sharp edged weapon and rest of the injuries caused by blunt object. fronto parietal region. 13. Incised wound 1 3/4 x 3/8 x Bone deep left parietal region. 14. Incised wound 2/12 x 1/2 x bone fracture left parieto occipital region near mid-line. He proved post-mortem report Ex. P7. He found injuries No. 3. 4, 13 and 14 caused by sharp edged weapon and rest of the injuries caused by blunt object. He also found injuries No. 6, 7, 10 and 14 grievous in nature and rest of the injuries simple in nature. In his opinion the cause of death was injury to brain due to injury No. 14. In the cross-examination he admitted that injuries No. 6. 7 and 10 even taken cumulative were not sufficient to cause death. He also admitted that if the deceased would have been provided immediate medical help of Neuro Surgeon, he would not have died. ( 5 ) PWI Jaskaran has stated that on the date of incident at about 6. 00 p. m. he was returning from the field alongwith Mandar Singh. Jaspal Singh was ahead of them When Jaspal Singh reached near the field of Gurnaim Singh, the accused persons Gurmail Singh. Roop Singh. Kor Singh and Nirmal Singh came out from a hut. All the four accused persons were carrying Gandasist in their hand. They surrounded Jaspal Singh and assaulted him by Gandasis. On being challenged the accused persons left him and ran away. They took him to the hospital at Hanumangarh in a tractor. The Doctor declared him dead. He admitted enmity between the parties and stated that a false case was foisted by Gurmail Singh against Mandar Singh and Jaspal Singh. He also stated that at the time of election for the members of Legtslative Assembly a quarrel had taken place between the two groups. ( 6 ) PW2 Mandar Singh has stated that on the date of incident at about 5. 30 p. m. he was returning from the field. He was accompanied by his brother Jaskaran Singh and Jaspal Singh, Jaspal was ahead of them. When he reached near the field of Gurnam Singh, the accused Gurmal Singh, Roop Singh, Kor Singh and Nirmal Singh came out from the hut constructed on the field of Gurnam Singh. All of them were armed with Gandasis. They surrounded Jaspal Singh and assaulted him by Gandasis, On being challenged they left him and ran away from the spot. When he reached near the field of Gurnam Singh, the accused Gurmal Singh, Roop Singh, Kor Singh and Nirmal Singh came out from the hut constructed on the field of Gurnam Singh. All of them were armed with Gandasis. They surrounded Jaspal Singh and assaulted him by Gandasis, On being challenged they left him and ran away from the spot. Jaspal Singh was taken to the hospital at Hanuman Garh, where he was declared dead. He has also proved various memos prepared by the Police. In the cross-examination, he admitted that a case with respect to the incident which took place about 2-1/2 year back for assault on Gurmail Singh was pending in the same Court. He also admitted that the injuries were caused to the victim from both the sides of the Gandasis. However, he could not say as to the individual injury caused to the deceased by individual accused persons. ( 7 ) PW4 Balbeer Singh is the witness of recovery of weapons of offence from each of the accused persons. ( 8 ) PW5 Mahaveer Prasad and PW6 Om Prakash are the formal police witnesses. PW7 Richpal Singh is the Investigating Officer. He has given all the details of the investigation. PW8 Gurlal Singh has not supported the prosecution case and as such he has been declared hostile. ( 9 ) THE main criticism leveled against statements of two eye-witnesses namely, PW1 Jaskaran Singh and PW2 Mandar Singh is that their statements stand falsified by the medical evidence. The two eye-witnesses, namely, PW1 Jaskaran Singh and PW2 Mandar Singh, are undoubtedly interested witnesses. But that cannot be a ground to discard their testimony. It however, certainly puts the Court on guard to scrutinise their evidence more carefully. Both the witnesses in terms have stated that all the four accused persons assaulted the deceased Jaspal Singh by Gandasis. This part of the statement does not find full corroboration from the medical evidence. Out of 14 injuries on the person of the deceased Jaspal Singh, only 4 injuries have been caused by sharp edged weapon and rest of the injuries are caused by blunt object. There is no material on record to show as to how the deceased Jaspal Singh sustained injuries by blunt object. It is significant, to notice that three injuries are, grievous in nature caused by blunt object. There is no material on record to show as to how the deceased Jaspal Singh sustained injuries by blunt object. It is significant, to notice that three injuries are, grievous in nature caused by blunt object. Normally, when the sharp edged weapon is used, there is no warrant for supposing that the blunt side, of the weapon was used. PW2 Mandar Singh of course, in the cross - examination stated that the accused persons caused injuries to the victim by both the sides of Gandasis. In these circumstances, it is difficult for us to place implicit reliance upon the testimony of PW1 Jaskaran Singh and PW2 Mandar Singh. Thus, we place both these witnesses in the category of partly reliable witnesses. ( 10 ) THE prosecution has proved the evidence of recovery of weapons of offence from each of the accused persons. The accused Roop Singh was arrested on 19-6-1994 vide Ex. P23. A blood stained Gandasi has been recovered vide Ex. P8 in pursuance of the information given vide Ex. P27. The accused Kor-Singh was arrested on 19-6-1994 vide Ex. P24. A blood stained Gandasi was recovered vide Ex. Plo in pursuance of the information give by him recorded vide Ex. P26. The accused Nirmal Singh was arrested on 19-6-1994 vide Ex. P25. The blood stained Gandasi has been recovered vide Ex. P 12 in pursuance of the information memo Ex. P28. All the relevant memos have been proved by PW4 Balbeer Singh and PW7 Richpal Singh. PW6 Om Prakash has stated that he was the Incharge of the TMalkhana, PW7 Richpal Singh deposited him three sealed packets. They remained in his custody in sealed condition. They were delivered to PW5 Mahaveer Prasad on 28-7-1994. PW5 Mahaveer Prasad has stated that after receiving the packets from the Malkhana, he delivered the same in sealed condition at the Forensic Science Laboratory, Japur Ex. P29 shows that all the packets in sealed condition were received at the F. S. L. at Jaipur on 29- 7-1994 as per special messenger. He found all the three Gandasis recovered from the accused persons smeared with human blood. He also found that they were stained with AT blood group. He also found the Kami, Kachha, Tehmal and Safa at the deceased smeared with A blood group. He found all the three Gandasis recovered from the accused persons smeared with human blood. He also found that they were stained with AT blood group. He also found the Kami, Kachha, Tehmal and Safa at the deceased smeared with A blood group. Thus, the testimony of PW1 Jaskaran Singh and PW2 Mandar Singh finds corroboration from the recovery of blood stained Gandasis as against the accused Roop Singh, Kor Singh and Nirmal Singh. Thus, the prosecution has succeeded in establishing the presence and participation of the aforesaid three accused persons in the incident. ( 11 ) THERE is no recovery from the accused Gurmail Singh. It is submitted by the learned Public Prosecutor that as Gurmail Singh was not arrested, no recovery could be made from him. It is also submitted that the Investigating Officer has obliged him by not arresting. It is not necessary for us to go into this aspect. There is no evidence of recovery of weapon of offence against the accused gurmel Singh. In absence of such corroborative evidence, we do not consider it safe to uphold conviction of Gurmail Singh on the sole testimony of PW1 Jaskaran and PW2 Mandar Singh. The accused Gurmel Singh Is entitled to the benefit of doubt. ( 12 ) IT is contended by Mr. M. L. Garg, learned Counsel appearing for the appellant that there is no evidence to show as which accused caused fatal injury and as such no inference can be drawn that all the accused persons shared common intention to commit the murder of Jaspal Singh and as such the conviction of the three accused persons cannot travel beyond Section 326 or at the most, Section 304, part II, IPC. On the other hand, it is submitted by Mr. Kharlia that both the eyewitnesses in terms have stated that the accused persons all of sudden came out from the hut and assaulted deceased Jaspal Singh by deadly weapon like Gandasi and therefore the only inference which can be drawn is that each of them shared common intention to cause death of Jaspal Singh. ( 13 ) WE have given our anxious consideration to the rival contentions. ( 13 ) WE have given our anxious consideration to the rival contentions. It is significant to notice that out of 14 injuries only 4 injuries have been caused by sharp edged weapon and out of 4 injuries only injury No. 4 is grievous in nature rest of the three injuries are simple in nature caused by sharp edged Weapon. If the intention of the accused persons was to kill Jaspal Singh, they would not have caused simple injuries. inspite of that they were armed with deadly weapon like Gandasi. Even if it is assumed, that three accused persons were responsible for causing 10 injuries by using opposite side of the Gandasis then also no intention of causing murder can be attributed. If they intended to commit murder, they would have not cause the injuries by blunt side of the Gandasi. In these circumstances, the only interference which can be drawn is that the three accused persons namely Roop Singh. Kor Singh and Nirmal Singh caused injuries with the knowledge that their act may cause death. ( 14 ) THUS the accused appellants Roop Singh, Kor Singh and Nirmal Singh are liable to be convicted of offence under Section 304 (10/34. I. P. C. ( 15 ) CONSEQUENTLY this appeal is partly allowed and the conviction of the appellants namely Roop Singh, Kor Singh and Nirmal Singh for offence under Sections 304/34. I. P. C. is quashed and set aside. So far the accused Gurmal Singh is concerned he is given benefit of doubt as stated above. However accused appellants namely Roop Singh. Kor Singh and Nirmal Singh are convicted of offence under Section 304 (11)134. I. P. C. The accused persons are in jail for substantial period. As they have already served out the substantial period of the sentence their sentence is reduced to the period already undergone. The appellants namely Roop Singh Jagroop Singh Sb Gurmail Singh, Kor Singh S/o Gurbakshish Singh. Nirmal Singh S/o Amcujeet Singh and Gurmail Singh S/o Nand Singh shall be enlarged forthwith, if not required in any other case. Appeal allowed partly. .