JUDGMENT S.L. Kochar, J. Being dissatisfied with the judgment dated 24th December, 2002 rendered in Sessions Trial No. 152/1998 by the learned Additional Sessions Judge, Agar, District Shajapur, whereby convicted the appellants for the offence u/s 302/34 and section 341 of the Indian Penal Code and sentenced each to suffer imprisonment for life with fine of Rs. 1,000/-; in default of payment of fine to undergo ten months R.I. u/s 302/34, Indian Penal Code and fine of Rs. 100/- each; in default of payment of fine to undergo seven days S.I. u/s 341, Indian Penal Code, the appellants have preferred this appeal. The prosecution case in nut shell as unfolded before the trial Court was that on 28-4-1998, deceased Mangilal was returning back after attending some marriage function from village Badi Nevri to village Chotti Nevri in the evening at about 6.00 p.m. He was assaulted by the appellants having lathi and farsi in their possession. He was brought to the house and thereafter Ramchandra (PW.1), his son went to the Police Station and lodged the F.I.R. (Ex.P.1). The deceased died on the same day because of shock due to excessive bleeding. Deceased suffered as many as ten injuries but all were on his legs and hands. He suffered fracture of tibia bone, left femur bone and left ulna. The post-mortem was performed by Dr. Ghanshyam Sharma (PW.5) vide Ex.P.9. After due investigation, chargesheet was filed. During the course of trial, one accused Onkarsingh has died. The appellants have abjured their guilt. Therefore, the trial Court has framed the abovementioned charges and put them on trial. The learned trial Court, after recording the prosecution evidence and hearing both the parties, convicted the appellants as mentioned above. Hence this appeal. We have heard Shri Jaisingh, learned Sr. Counsel instructed by Shri Vikas Yadav, for the appellants and Shri G. Desai, learned Dy. A.G. for respondent State and also perused the record. The learned counsel for appellants have canvassed only one point, without disputing the homicidal death of deceased Mangilal, that even if the complete prosecution case is accepted, the offence at the most would fall u/s 304-11 of the Indian Penal Code. The learned counsel has also submitted that the appellants are all agriculturist and are the first offender. Therefore, they may be dealt with leniently on the question of sentence. We have perused the record. The learned counsel has also submitted that the appellants are all agriculturist and are the first offender. Therefore, they may be dealt with leniently on the question of sentence. We have perused the record. The incident has been witnessed by Ramesh (PW. 2) and Mansingh (PW.4). There is oral disclosure about the incident (oral dying declaration) by the deceased before Ramchandra (PW. 1) and Ramesh (PW.2). Now for the purposes of consideration of the submission of the learned counsel for appellants, we have also perused the statement of Dr. Ghanshyam Sharma (PW.5). In his statement as well as post-mortem report (Ex.P.9) he has disclosed as many as ten injuries found on the person of the deceased but none were on the vital part of the body. All injuries were on hands and legs. The doctor has also stated in paragraph nine of his deposition that at the time of death, deceased was suffering from Tuberculosis. Deceased was assaulted by four persons out of which one Meharbansingh was having sharp edged weapon like farsi and all the four had caused atleast ten blows for ten injuries found on the person of the deceased but none were on vital part of the body. If appellants would have intention to commit murder of deceased, they could have caused fatal injury on vital part of the body. Absence of any injury on vital part of the body is indicative of the fact that appellants were not having common intention to commit murder but they were having knowledge that their act would likely to result into death of deceased who was lean and thin person as mentioned in paragraph three of the statement of Dr. Ghanshyam Sharma (PW. 5). In this view of the matter, we are of the view that the offence would be short of culpable homicide amounting to murder but at the same time it may be culpable homicide not amounting to murder punishable u/s 304-11 of the Indian Penal Code. In the result, we set aside the conviction of the appellants u/s 302/34 of the Indian Penal Code and instead thereof convicted the appellants u/s 304II of the Indian Penal Code. As regards the sentence, since the appellants are agriculturists having no criminal antecedence, we feel that ends of justice would be met by awarding them sentence of R.I. for four years. As regards the sentence, since the appellants are agriculturists having no criminal antecedence, we feel that ends of justice would be met by awarding them sentence of R.I. for four years. We also maintain the conviction of the appellants u/s 341 of the Indian Penal Code and sentence of fine of Rs. 100/- as imposed by the Court below, in default of payment of they shall suffer further seven days S.I. The appeal is partly allowed in the terms as indicated above. Final Result : Allowed