Honble SINGH, J.–Accused appellants Keekiya and Rama have filed this joint jail appeal against the judgment and sentence dated 9.1.1997 delivered by Special Judge, SC/ST Act Cases, Udaipur in Sessions Case No. 52/95, By the impugned judgment both the accused appellants have been convicted u/Sec. 302 read with Sec. 34 IPC and were awarded life imprisonment alongwith a fine of Rs. 1000/- each. In default five months simple imprisonment was also awarded. (2). The short facts are that on 30.5.1995 at about 6.00 P.M. at village Mandkala one Smt. Amri placed cow dung on a disputed land which was objected to by both the accused appellants. When Amri did not heed to their request they gave besting to her, the hue and cry raised by Amri attracted her son Kania (since deceased) as also her husband Bhagla PW-2. Both the accused appellants met Kania infront of the house of Bhera and gave lathi blows to him by which kania fell down. In the meantime, Bhagla PW-2 also reached nearby. He too was given beating by both the accused appellants. After the occurrence both the accused appellants proceeded to their residence. (3). At that time PW-4 Gautam, another son of Amri, was constructing his new house nearby and was informed about the occurrence by some child who came running on the site and found Kania and Bhagla lying injured on the site. As Kania was unconscious and was seriously injured, he was taken to the house and PW-4 Gautam lodged lodged information report EX.P/1 at police station Dhariawad. Both injured were immediately taken to hospital and were medically examined. As condition of Kania was serious he was referred to Government Hospital, Udaipur where he died at 10.20 A.M. on 1.6.1995. Autopsy on the dead body was conducted. (4). Accused appellant Rama was arrested on 3.6.1996. He gave a voluntary disclosure statement and got a lathi recovered from his residential house. Similarly accused appellant Keekiya was arrested on 28.6.1995. He also gave a voluntary disclosure statement and got a lathi recovered from his residential house. Both the Articles were sealed at the time of seizure. After usual investigation both the accused persons were put up for trial before the trial court. Accused appellant Keekiya was charged u/Sec. 302 IPC whereas accused appellant Rams was charged u/Sec. 302 read with Sec. 34 IPC for the injuries cause to deceased Kania. Both the Articles were sealed at the time of seizure. After usual investigation both the accused persons were put up for trial before the trial court. Accused appellant Keekiya was charged u/Sec. 302 IPC whereas accused appellant Rams was charged u/Sec. 302 read with Sec. 34 IPC for the injuries cause to deceased Kania. He was also charged u/Sec. 323 IPC for injuries caused to Bhagla. (5). The prosecution examined 18 witnesses in all and have exhibited 19 documents. In statement given u/Sec. 313 Cr.P.C. both the accused appellants have denied the incriminating evidence appearing against them and pleaded ignorance. Learned trial court, after analytically discussing evidence has convicted both the accused appellants as stated above. (6). The first contention of learned amicus curiae was that there were material contradictions between the statements of both the eye witnesses PW-1 Amri as also PW-2 Bhagla and implicit reliance cannot be placed on their testimony. Similarly, the recoveries of lathis so made at the instance of the accused appellants do not connect them with the crime. Only one lathi was sent to the Forensic Science Laboratory in which also origin of the human blood could not be ascertained. To which of the accused appellants that lathi belonged, has not been proved. Lastly, it was argued that it has not come in the prosecution evidence which of the accused appellant gave a fatal blow on the head of deceased Kania. There was no intention to commit murder because accused appellant Keekiya was real uncle of deceased Kania and younger brother of PW-2 Bhagla. There were sudden quarrel on a petty matter and at the must they wanted to teach PW-1 Amri a lesson as she was putting cow dung on a land which was claimed by both the parties. (7). On the contrary, learned Public Prosecution has supported the judgment and sentence awarded by the trial court. (8). We have given our thoughtful consideration to the rival contentions of the parties. Undoubtedly accused appellants are members of the same family. PW-2 Bhagla is elder brother of accused Keekiya. Admittedly PW-1 Amri was putting cow dung on a piece of agricultural land which was under dispute between the accused appellant and Bhagla. Upon the resistance made by the accused appellants Amri PW1 did not deter, therefore. She was given a threshing. Undoubtedly accused appellants are members of the same family. PW-2 Bhagla is elder brother of accused Keekiya. Admittedly PW-1 Amri was putting cow dung on a piece of agricultural land which was under dispute between the accused appellant and Bhagla. Upon the resistance made by the accused appellants Amri PW1 did not deter, therefore. She was given a threshing. Her cry for help attracted Kenia and Bhagla and they too were given beating. (9). Immediately after the occurrence the matter was reported to the police by PW-4 Gautam which bears a detailed version of occurrence. Immediately thereafter Kania and Bhagla were medically examined by PW-14 Dr. Mahendra Singh Yadav who had found three injuries on the head of Kania and one injury on the person of Bhagla and has proved injury memos Ex.P/11 and Ex.P/12. As Kania was in coma, his condition was very serious, therefore, PW-14 Dr. Mahendra Singh Yadav referred him t Government Hospital, Udaipur where he passed away on 1.6.1995. PW-15 Dr. Yogesh Sharma has conducted autopsy on the dead body and found following injuries:- 1. Stitched would 4 cm, obliquely placed on left parietal part with swelling of the left parietal region. 2. Stitched would 1.5 cm on the right parietal region of scalp. 3. Stitched operational would 26 cm inverted ``U shaped on the right scalp. 4. Stitched would 1 cm on the right eye brow just superimposing over lateral aspect of right eye brow over its long axis. (10). Upon dissection of skull the doctor found existence of chepolo haematoma all over the skill which was very thin on right side and about 0.5 to 0.8 cm thick over the left side. On right side below the incision gel foam was found present and there was missing piece of 10 x 8 cm parietal bone right side. On left side thee was a fracture in segittal place 19 cm in length involving frontal, parietal and occipital bones. According to the doctor all injures were ante mortem in nature and wee sufficient in ordinary course of nature to cause death. This witnesses has proved Ex.P/13 postmortem report written and prepared by him. No cross examination worth the name has been done on this witness. Similarly, PW-14 Dr. Mahendra Singh Yadav has also proved injury report Ex.P/12 and found following injuries on the person of injured Kania:- 1. This witnesses has proved Ex.P/13 postmortem report written and prepared by him. No cross examination worth the name has been done on this witness. Similarly, PW-14 Dr. Mahendra Singh Yadav has also proved injury report Ex.P/12 and found following injuries on the person of injured Kania:- 1. Lacerated wound 3 cm x 0.4 cm bone deep over left parietal region. 2. Lacerated would 1.5 cm x 0.4 cm x bone deep over left parietal region. 3. Lacerated would 1 cm x 0.3 cm x bone deep on right eye brow. (11). This doctor has also advised x-ray of head of injured kania. Upon X-Ray report fractures of frontal and parietal bone on left side were seen. This witness has also not been cross examined at length. The doctor has proved that the injuries to kania were ante mortem in nature and were sufficient in ordinary course of nature to cause death and, therefore, homicidal death of Kania has been proved. (12). So far as involvement of accused appellants in the crime is concerned. Ex.P/1 first information report was lodged immediately thereafter by PW-4 Gautam which contains all the necessary details of the prosecution version. PW-4 Gautam has proved it. It was not an eye witness to the occurrence was, therefore, does not require detailed discussion by us also. (13). PW-1 Amri has deposed that when she went to put cow dung in the filed, Rama and keekiya came running after her and gave beating. When she raised alarm Kania, her son, and Bhagla, her husband, came to her rescue. Upon which Rama gave a lathi blow to Kania. Thereafter Keekiya also gave a lathi blow on the head of Kania by which he fell down. Thereafter Bhera and Thawra came and took injured kania to the house. This witness has been cross examined at length but she has corroborated the prosecution version in all minute details. She could not be contradicted by her police statement given u/Sec. 161 Cr.P.C. and was consistent throughout and has been rightly held by the trial court to be of sterling worth. (14). PW-2 Bhagla has also deposed before the trial court that when his wife Amri went to put cow dung in the field Keekiya and Rama gave her beating. When she raised hue and cry he alongwith his son Kania went running on the site. (14). PW-2 Bhagla has also deposed before the trial court that when his wife Amri went to put cow dung in the field Keekiya and Rama gave her beating. When she raised hue and cry he alongwith his son Kania went running on the site. Kania being young was infront and this witness Bhagla was flowing him. Infront of the house of Bhera, Ramla and Keekiya gave beating to Kania by their lathis causing injuries on his head and scapula. When this witness reached nearby the also received a lathi blow on his right leg which was inflicted by Keekiya. When Kania fell down the accused persons ran away in their house. This witness also has been cross examined at length yet nothing substantial could be elicited affecting adversely his testimony. The only contradiction confronted to this witness from statement given u/Sec. 161 Cr.P.C. is that in Ex.D/1 at place ``A to ``B it has been mentioned that he got injuries on his right leg as also on the body. In the court he denied of having received any injury on the body. The trial court has rightly came to the conclusion that this solitary contradiction was not material to discredit his version. We too are also of the opinion that PW-1 Amri as also PW-2 Bhagla are wholly reliable witnesses and can be safely relief upon while convicting the accused appellants. (15). So far as recoveries of lathis are concerned, accused Rama was arrested vide Ex.P.15 on 3.6.1995. He gave a voluntary disclosure statement u/Sec. 27 of the Evidence Act at 8.00 A.M. on 5.6.1995 which is Ex.P/17 and got a lathi recovered from his residential house vide ex.P/18 in presence of PW-3 Dhula and one Roda ho was not examined. This lathi was not sealed at the time of seizure and , Therefore, not sent to forensic Science Laboratory and, therefore, this recovery looses importance. (16). So far as Keekiya is concerned, he was arrested vide Ex. P/16 at 1.00 P.M. on 28.6.1995. He gave a voluntary disclosure statement Ex.P/19 at 2.00 P.M. on 28.6.1995 and got a lathi recovered vide Ex.P/7 at 4.30 P.M. on 28.6.1995. In presence of Harjia and Mangilal respectable witnesses of the locality. This lathi was sealed at the time of seizure as blood stains were observed on it. PW-11 mangilal as also PW-12 Harjia have proved this recovery. In presence of Harjia and Mangilal respectable witnesses of the locality. This lathi was sealed at the time of seizure as blood stains were observed on it. PW-11 mangilal as also PW-12 Harjia have proved this recovery. Both these witnesses have not been cross examined and there testimony remains intact. Similarly, ex.P/7 has also been proved by Shankar Singh PW-18 Investigating Officer before whom not only voluntary disclosure statement was made by Kania but lathi was also recovered from his residential house. Though PW-18 Shankar Singh has been cross examined at length yet nothing adversely affecting his testimony has been elicited. This lathi was also sent to the Forensic Science laboratory in a sealed condition and was also found stained with ``A Group of human blood. (17). The trial court has rightly held that both the accused appellants have caused injures to kania by their respective lathis. This trial court was also of the view that the prosecution failed to prove which of the accused appellant caused that fatal blow and, therefore, both the accused appellants were convicted u/Sec. 302 with the aid of Sec. 34 IPC. (18). Learned amicus curiae submitted before us that when both the parties were closely related to each other and accused appellant Keekiya was younger brother of PW-2 Bhagla and there was not enmity between the parties, simultaneously there wee no pre-meeting of minds to cause murder of Kania. When Amri PW-1 wanted to put cow dung on the disputed field which was claimed by the accused appellants, she was resisted and given beating by the accused appellants. Her cries attracted Kania and Bhagla. They were also given bearing. (19). Keeping in view the afore stated proved factual circumstances, we are also of the view that there were no enmity between the parties, they were members of the same family and there was no intention of either of the accused appellants to cause fatal injuries to Kania and at the most offence may fall under part-II of Sec. 304 IPC. (20). In Ibrahim vs. State of West Bengal (2), in similar circumstances the Apex Court was of the view that if the accused person chase and severely beat a person, it would establish that their common intention was to beat. The common intention is with regard to criminal act i.e. the act of beating. Now the result of beating is the death of victim. The common intention is with regard to criminal act i.e. the act of beating. Now the result of beating is the death of victim. The accused has no intention to kill the deceased but when they gave severe beating they had knowledge that he would die. Thus an offence under Sec. 304 part- II IPC is established. Since this criminal act is done in furtherance of the common intention of all the accused so each is guilty of offence u/Sec. 304 part-II read with Sec. 34 IPC. In Peepal Singh vs. State of Punjab (2), the Apex Court was of the view that determination of common intention, in addition to other factors includes consideration of nature of injuries, background of incident and nature of weapon used in crime. Similarly, in R.C. Reddy vs. State of A.P. (3), relying upon Bolinudo vs. State of A.P. (4), it was held that common object and common intention are inferable from the nature of weapon used, manner and sequence of attack, setting and surroundings under which occurrence took place. The fact that all the accused persons chased and surrounded the deceased and inflicted injuries with their respective weapons was sufficient to conclude that they had the common object to kill the deceased. Similarly, it has been held in Harshad Singh Pahalwan Singh vs. State of Gujarat (5). (21). Keeping in view the afore stated legal position in mind we are of the view that when both the accused appellants chased kania with their lathis in their hands and inflicted as much as three lathi blows on his head which were so severe that Kania fell down unconscious and died two days thereafter, both the accused appellants should have knowledge that causing a severe blow by a lathi on the head of a person may prove fatal. Therefore, in the factual and legal aspects refered above in our considered view the offence does not fall u/Sec. 302 IPC instead it falls u/Sec. 304 part-II IPC. (22). Hence, we accept this appeal partly, set aside the conviction u/Sec. 302 read with Sec. 34 iPC and convict both the accused appellants u/Sec. 304 part-II read with Sec. 34 IPC. (23). (22). Hence, we accept this appeal partly, set aside the conviction u/Sec. 302 read with Sec. 34 iPC and convict both the accused appellants u/Sec. 304 part-II read with Sec. 34 IPC. (23). So far as awarding of sentence is concerned, the Apex Court has held in a catina of judgments that proper sentence is the amalgum of many factors such as, nature of offence, proper criminal record, the age of offender, the record of offender as to employment, the background of offender with reference to education, home life, sobriety and social adjustment, emotional and mental condition of offender, prospectus for rehabilitation, possibility of his running to his normal life in the community, possibility that the sentence may serve as deterrent to crime by the offender and current community need of such deterrent sentence, there factors were taken into accused by Honble Supreme Court in Santa Singh vs. State of Punjab (6). (24). Keeping in view the above circumstances, in mind and keeping in view the factual aspects of the case that the accused appellants belonged to the family of the deceased and the occurrence took place in the heat of moment and that there was no enmity between the parties and that there was no premeditation and in a sudden light in heat of passion upon a sudden quarrel and the offenders having not taken unusual advantage or acted in a cruel and unusual manner lathi injuries were caused on the head of deceased, therefore, in our view it will meet the ends of justice if the accused appellants are awarded the punishment of sentence for the period they have already undergone. (25). The perusal of the file reveals that accused appellant Rama is in custody since 3.6.1995 and Keekiya is in custody since 28.6.1995. They have served out almost six years imprisonment. Hence, we convict and sentence them accordingly. Both the accused appellants are in custody. They be released forthwith, if not required in any other case.