JUDGMENT 1. - The appellants Vikram and Dataram were indicted before the learned Additional Sessions judge Kishangarhbas District Aiwar for having committed murder of Bhagwan Nath. Learned trial Judge in Sessions Case No. 121/1998 vide judgment dated May 29, 1999 convicted the appellants under Section 302 read with 34 IPC and sentenced each of them to undergo the imprisonment for life and fine of Rs. 1,000/- in default to further suffer one month Rigorous Imprisonment. Both the appellants in the instant appeal have assailed the said finding of learned trial Judge. 2. Put briefly the prosecution case is that informant Smt. Mukesh (PW 3) submitted a written report (Ex.P-4) on November 12, 1997 around 11.30 PM with the Police Station Tijara, District Alwar stating therein that Vikram came to her house and asked her husband to accompany him. While Vikram and her husband proceeded she also followed them. On the way Bhagta Rare, Data Ram, Mam Chand, Kailash w/o Vikram, Risali w/o Bhagta Ram and Surti w/o Data Ram got her husband halted and started inflicting injuries with lathis and farsis on her husband who became unconscious and was taken to hospital at Kishangarhbas where he died after some time. A case under Sections 147, 148, 149 and 302 IPC was registered and investigation commenced. On completion of the investigation charge sheet was filed against the appellants. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Kishangarh Bas., District Myer. Charge under Section 302 read with 34 IPC was framed against the appellants, who denied the charge and claimed to be tried. The prosecution in support of its case examined as many as 12 witnesses. In their explanation under Section 313 CrPC the appellants claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. The only contention of learned counsel for the appellants, is that from the material on record no offence under Section 302 read with 34 IPC is made out against the appellants. 4. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. The only contention of learned counsel for the appellants, is that from the material on record no offence under Section 302 read with 34 IPC is made out against the appellants. 4. On the other hand learned Public Prosecutor supported the impugned judgment and canvassed that the deceased Bhagwan Nath eustained as many as 17 injuries and from the nature of injuries the intention of appellants can be gathered and they have been rightly convicted and sentenced under Section 302 read with 34 IPC. 5. We have pondered over the rival submissions and with the assistance of learned counsel ;canned the record. 6. The medical evidence discloses that the deceased Briagwan Nath had sustained as many 17 injuries thus:- "1. Lacerated cut of upper part of right pinna upto full length. 2. Lacerated wound 2 X 1 cm must old process (hack of right pinna) 3. Lacerated wound 1.5 X 1/2cm outer part of lower ⅓ of right arm. 4. Three parallel contusion each is 4X 2cm across the outer part of mid of right arm. 5. 5 X 2cm swelling with contusion outer part of right shoulder. 6. Abrasion 10 X 1/4cm along with the outer lower ⅓ of right Fore arm. 7. 2 X 1/4cm abrasion mid of lateral aspect of right Fore arm. 8. Contusion 4 X 1cm irregular in shape mid auxiliary line (right) 9. Abrasion 3 X 1/4cm outer part of upper ⅓ of left fore arm. 10. Contusion with swelling whole of the dorsal aspect of left hand. 11. Abrasion 1 X 1/2cm mid of left side of chest in mid axillary line. 12. Abrasion 2 X 1 cm outer part of left hip. (upper part). 46 13. Abrasion 3 X 1cm mid of lower ⅓ of left thigh. 14. Lacerated wound 2 X 1/2 cm mid of anterior part of middle ⅓ of left leg. 15. Swelling whole of the right thigh. 16. Swelling of Right leg middle part. 17. Lacerated wound 2 X 1 cm upper ⅓ of anterior part of right leg." 7. As per post mortem report (Ex.P-1) the cause of death of deceased was massive haemorregic shock due to compound fracture of right lower limb. Dr. 15. Swelling whole of the right thigh. 16. Swelling of Right leg middle part. 17. Lacerated wound 2 X 1 cm upper ⅓ of anterior part of right leg." 7. As per post mortem report (Ex.P-1) the cause of death of deceased was massive haemorregic shock due to compound fracture of right lower limb. Dr. Mahendra Singh Bundel (PW 1), who performed autopsy on the dead body of deceased, admitted in his cross examination 5 that 17 injuries sustained by deceased were not caused on vital parts of the body and those were not sufficient to cause death in the ordinary course of nature. Dr. Som Dutt Gupta (PW 2), who was also member of the Medical Board, that performed autposy, also corroborated the opinion expressed by Dr. Bundel. 8. In order to bring the offence within the purview of Section 300 Indian Penal Code the act by which death is caused should he done with the intention of causing death, or; Secondly, if it is done with the intention of causing such bodily injury as the offender should know that it is likely to cause the death of the person to whom the harm is caused, or; Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or; Fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 9. It appears that Smt. Mukesh (PW 3) although corroborated the facts indicated in written report but her statement does not find support from the medical evidence. Even her statement has not been relied upon by the learned trial Judge. The testimony of Dhararnpal (PW 4), Phattu (PW 5) and Pooran (PW 8) established that the occurrence did take place and appellants inflicted injuries on the person of deceased. Even her statement has not been relied upon by the learned trial Judge. The testimony of Dhararnpal (PW 4), Phattu (PW 5) and Pooran (PW 8) established that the occurrence did take place and appellants inflicted injuries on the person of deceased. But looking to the fact that no injury was caused on the vital part of the body of deceased, we are of the opinion that the appellants had no intention to kill Bhagwan Nath and the case of appellants is not covered under any of the clauses appended to Section 300 of the Indian Penal Code. From the post mortem report, we find that the deceased had sustained as many as 17 injuries including two fractures over tibia and fabula. Therefore, it may be inferred that the appellants had knowledge that their act was likely to cause death and the appellants are guilty of committing offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC. We find from the record that the appellants are in custody continuously with effect from November 17, 1997 and ends of justice would be met in sentencing them to the period already undergone by them in confinement. 10. As a result of the above discussion, we partly allow the appeal and while setting aside the conviction of appellants Vikram and Dataram under Section 302 read with 34 IPC, we convict both of them under Section 304 Part II read with 34 IPC and sentence each of them to suffer imprisonment for a period already undergone by them in confinement. Both the appellants Vikram and Dataram are in custody, they shall be set at liberty forthwith if not required in any other case. The impugned judgment of the learned trial Judge stands modified as indicated above.Appeal Partly Allowed. *******