JUDGMENT 1. - This appeal has been filed by the accused appellants against the judgment and order dated 25.5.1987 passed by the learned Addl. Sessions Judge, Rajsamand in Sessions Case No. 28/86 by which he convicted the accused appellants Chokha and Tulsiya for the offence under section 304 Part-I Indian Penal Code and sentenced each of them to undergo three years RI and to pay a fine of Rs. 1000/-, in default of payment of fine, to further undergo SI for six months. 2. It may be stated here that by the same judgment and order, the learned Addl. Sessions judge acquitted other four accused persons, namely, Jeta, Ganesh, Khema and Deva for the offence under sections 148, 323/149 and 302/149 Indian Penal Code and also acquitted the present accused appellants Chokha and Tulsiya for the offence under sections 148 and 323/149 IPC. 3. It arises in the following circumstances: On 26.3.1986 in the night at about 12.20 AM, PW1 Vakta lodged an oral report Ex. P/1 in the Police Station Khamnor stating inter-alia that on that day at about 10.30 PM in the night he alongwith others went to bllagal to burn holika and at that time, accused appellants Chokha and Tulsiya and four other accused persons, namely, Khema, Jeta, Ganesh and Deva having lathies in their hands came there and they started beating him and others and upon this, he and others ran away, but in that beating, Nawa (hereinafter referred to as the deceased) received injuries on head, as a result of which, he fell down and apart from him, PW10 Kanna, PW2 Nana ahd PW3 Kalu were also there. On this report Ex.P/1, police registered the case and started investigation. During investigation, deceased was got first medically examined by PW7 Dr. Megh Kumar and his injury report is Ex.P/6. Thereafter, the deceased died in the hospital on 28.3.1986 at about 4.40 PM and the post mortem of his dead body was got conducted by PW13 Dr. G. L.Dad and the post mortem report is Ex. P/25. In that beating, PW4 Ganesh was also got injured and he was got medically examined by PW9 Dr. Jeevan Lal and his injury report is Ex.P/16 The accused appellants Chokha and Tulsiya were got arrested on 29.3.1986 through arrest memos Ex. P/19 and Ex. P/20 respectively. G. L.Dad and the post mortem report is Ex. P/25. In that beating, PW4 Ganesh was also got injured and he was got medically examined by PW9 Dr. Jeevan Lal and his injury report is Ex.P/16 The accused appellants Chokha and Tulsiya were got arrested on 29.3.1986 through arrest memos Ex. P/19 and Ex. P/20 respectively. After usual investigation, the police submitted challan against the present accused appellants and four other accused persons, namel , Jeta, Ganesh, Khema.and Deva in the Court of Magistrate, from where the case was committed to the Court of Session. On 25.6.1986, the learned Addl. Sessions Judge, Rajsamand framed charges against the accused appellants and four other accused persons namely, Jeta, Ganesh, Khema and Deva for the offence under sections 148, 302/149 and 323/149 IPC. The charges were read over and explained to the accused persons, who pleaded' not guilty and claimed trial. During the course of trial, the prosecution in support of its case examined as many as 13 witnesses and got exhibited some documents. Thereafter, statements of the accused persons under section 313 Cr.P. C. were recorded and in defence, two witnesses were produced by the accused persons. The case of the defence was that the accused appellant Chokha was not in a position to give lathi blow by both hands and, therefore, injury on the head of the deceased could have not been caused by the accused appellant Chokha. After conclusion of trial, the learned Addl.Sessions Judge, Rajsamand through judgment and order dated 25.5.1987 acquitted the four accused persons, namely, Ganesh, Jeta, Deva zhd Khema for the offence under sections 148, 323/149 and 302/149 Indian Penal Code and also acquitted the present accused appellants Chokha and Tulsiya for the offence under section 148 and 323/149 Indian Penal Code but convicted the present accused appellant Chokha and Tulsiya for the offence under section 304 Part-I ]PC and sentenced both of them in the manner as indicated above holding inter-alia : (1) That the prosecution has failed to prove that in the alleged incident, PW4 Ganesh received injuries. (2) That the case of the prosecution that all accused persons beat deceased was not accepted by the learned trial Judge and therefore, he acquitted all the accused persons of the charge for the offence under section 148 IPC. (2) That the case of the prosecution that all accused persons beat deceased was not accepted by the learned trial Judge and therefore, he acquitted all the accused persons of the charge for the offence under section 148 IPC. (3) That placing reliance on the statements of PW2 Nana, PW3 Kalu and PW10 Kanna as eye witnesses, the learned trial Judge came to the conclusion that on the head of the deceased, first blow was given by the accused appellant Chokha and the second blow was given by the accused appellant Tulsiya. (4) That the prosecution has proved that the deceased died because of the head injuries received by him at the hands of the accused appellants Chokha and Tulsiya. (5) That no reliance was placed by the learned trial Judge on the statement of defence witness DWI Dr. N.S. Kothari on the point that the accused appellant Chokha was not in a position to cause head injury with his hands to deceased. (6) That the accused appellants had no such intention from which it can be inferred that the injuries which they had caused were sufficient in the ordinary course of nature to cause death. But, the injuries which were caused by them were likely to cause death. Hence, the act of the accused appellants was not covered by clause (1) of Section 300 Indian Penal Code and thereafter, he convicted both the accused appellants under section 304 Part-I Indian Penal Code in place of Section 302 IPC. Aggrieved from the said judgment and order dated 25.5.1987 passed by the learned Addl. Sessions Judge, Rajsamand, this appeal has been filed by the accused appellants. 4. In this appeal, the following submissions have been made by the learned counsel for the accused appellants : (i) That in the report Ex. P/1, the accused appellants were not assigned to have inflicted fatal blow, but during the course of trial, the witnesses have improved their statements and thus, witnesses are not reliable on this point. (ii) That the statements of DW1 Dr. N.S. Kothari and of accused appellant Chokha as DW2 were wrongly rejected by the learned trial Judge as the accused appellant Chokha was not in a position to cause such head injury which was received by the deceased. (ii) That the statements of DW1 Dr. N.S. Kothari and of accused appellant Chokha as DW2 were wrongly rejected by the learned trial Judge as the accused appellant Chokha was not in a position to cause such head injury which was received by the deceased. (iii) That there is no evidence to prove the fact that the accused appellant Tulsiya also caused head injury to the deceased because as per the injury report Ex.P/6, deceased was having only one head injury. (iv) That the accused appellants were charged for the offence under sections 148, 302/149 and 323/149 Indian Penal Code alongwith four other accused persons, namely, Jeta, Ganesh, Khema and Deva and when all accused persons including present accused appellants have been acquitted of the charges for the offence under sections 148 and 323/149 Indian Penal Code and other four accused persons have also been acquitted of the charge for the offence under section 302/149 IPC, therefore, the present accused appellants could have not been convicted for the offence under section 304 Part-I Indian Penal Code simpliciter. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Rajsamand. 6. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and gone through the record of the case. 7. Before proceeding further, first medical evidence of this case has to be seen. 8. The injury report of the deceased is Ex. P/6 and for that, the prosecution has produced Dr. Megh Kumar, PW7 who states in his statement recorded in Court that on 26.3.1986, lie was Medical Officer, Nathdwara and on that day, he medically examined deceased and found the following injury on his person: "Diffuse swelling of skull on lateral sides more on left side than Rt. side but there is no appearance of ext. injury." In cross-examination, he has admitted that except swelling on skull, no other injury was found on the person of the deceased and such type of injury could have been caused by thick wooden stick. He has further stated that the injury was grievous one and the condition of the deceased was also not good one. He has proved the injury report Ex.P/6. 9. He has further stated that the injury was grievous one and the condition of the deceased was also not good one. He has proved the injury report Ex.P/6. 9. There is also no dispute on the point that later-on deceased died in the hospital on 28.3.1986 at 4.40 PM and thereafter, post mortem of his dead body was got conducted by PW13 Dr. G.L. Dad.PW13 Dr. G.L. Dad states in his statement recorded in Court that on 28.3.1986 he was Medical Jurist, Udaipur and on that day, he conducted the post mortem of the dead body of the deceased and found the following injuries on his body : (1) Diffuse swelling right parietal region scalp with two abrasions of 0.5 x 0.5 cm size. (2) Diffuse swelling left parietal region scalp. (3) Bruise left side chest lower part 5 x 2 cm posterior. (4) Bruise right side chest back 4 x 1.5 cm below scapula. He has further stated that the cause of death of deceased was coma as a result of head injuries. He further stated that the injuries were sufficient in the ordinary course of nature to cause death. He has proved the post mortem report Ex. P/25.In cross-examination, he has clarified the fact that injuries no.1 and 2 of the deceased, which were on head, could have not been caused by one blow and, therefore, he had clearly come to the conclusion that for the injuries no.1 and 2 atleast two blows were must. 10. Thus, from the above medical evidence, it can easily be concluded that the death of the deceased was homicidal and the findings of the learned trial Judge in this respect are liable to be confirmed one. 11. The next question for consideration is whether the injuries on the head of the deceased were caused by the accused appellants Chokha and Tulsiya or not. 12. To arrive at the correct conclusion and to see whether the findings of the learned trial Judge that both the accused appellants caused one-one injury on the head of the deceased are correct one or not, oral evidence has to be seen and discussed, keeping in mind the medical evidence of this case. 13. 12. To arrive at the correct conclusion and to see whether the findings of the learned trial Judge that both the accused appellants caused one-one injury on the head of the deceased are correct one or not, oral evidence has to be seen and discussed, keeping in mind the medical evidence of this case. 13. PW1 Vakta, who lodged the report Ex.P/1, states that when he and others were returning back after burning holika, the accused appellants and other accused persons followed them and the accused appellant Chokha gave a lathi blow on the head of the deceased and the accused appellant Tulsiya gave a lathi blow on the back of the deceased and thereafter, all accused persons beat deceased and PW4 Ganesh.In cross-examination, he admits that the accused appellant Chokha gave a lathi blow from the back side and it was given by both hands and deceased fell down from the back side and deceased received two injuries on his head. 14. PW2 Nana is another witness, who states that the accused appellant Chokha gave a lathi blow on the head of the deceased and the accused appellant Tulsiya also gave lathi blow on the back and ribs of the deceased. 15. PW3 Kalu is another witness, who states that the accused appellant Chokha gave a lathi blow on the head of the deceased and the accused appellant Tulsiya also gave a lathi blow on the head of the deceased.In cross-examination, he admits that the accused appellant Tulsiya gave lathi blow on the head of the deceased. 16. Another witness is PW4 Ganesh. No doubt the learned trial Judge has not believed that he received injuries in the same incident, but he also admits that both the accused appellants gave one-one lathi blow on the head of the deceased. 17. PW10 Kanna is another witness, who states that both the accused appellants were causing injuries to the deceased. 18. No doubt the learned trial Judge has not believed that he received injuries in the same incident, but he also admits that both the accused appellants gave one-one lathi blow on the head of the deceased. 17. PW10 Kanna is another witness, who states that both the accused appellants were causing injuries to the deceased. 18. In my considered opinion, looking to the above evidence and the medical evidence, the findings of the learned trial Judge that both the accused appellants caused one-one injury on the head of the deceased are liable to be confirmed, because of the following reasons : (i) That so far as the presence of both the accused appellants at the time of burning holika is concerned, the same is not in dispute and apart from this, there is a cross case between the parties and that also reflects that both the accused appellants were present at the time of burning holika. (ii) That even in the report Ex. P/1 lodged by PW1 Vakta, the presence of both the accused appellants has been shown and it has also been stated that deceased received head injuries. However, in that report Ex.P/l, it has not been mentioned that both the accused appellants gave one-one blow on the head of the deceased. (iii) That no doubt PW7 Dr.Megh Kumar, who first examined deceased on 26.3.1986, has stated in his injury report Ex.P/6 that there was diffuse swelling of skull on lateral sides more on left side than right side, but PW13 Dr.G.L.Dad, who was at that time Medical jurist has clearly stated in the post mortem report Ex.P/25 deceased was having two diffuse swelling on right and left parietal region scalp and he has further clarified that these two injuries should been caused by two blows on head. Since PW13 Dr. G.L.Dad was a Medical Jurist and a most experienced person than PW7 Dr. Megh Kumar, therefore, the opinion between two doctors, namely, PW13 Dr. G.L. Dad and PW7 Dr. Megh Kumar, the opinion of PW13 Dr. G.L. Dad would prevail because he was Medical Jurist and most skilled person for the )Job in question and he was having better qualifications and posting than PW7 Dr. Megh Kumar. Apart from this, a person received what type of injury would be revealed in better sense when post mortem is done. Megh Kumar, the opinion of PW13 Dr. G.L. Dad would prevail because he was Medical Jurist and most skilled person for the )Job in question and he was having better qualifications and posting than PW7 Dr. Megh Kumar. Apart from this, a person received what type of injury would be revealed in better sense when post mortem is done. Since after conducting post mortem of the dead body of the deceased, Dr. G.L.Dad, PW13 has come to the conclusion that there were two diffuse swelling on right parietal and left parietal region scalp, therefore, that part of his statement should be treated as correct one. Therefore, the findings of the learned trial Judge that deceased received two injuries on head are liable to be confirmed one. (iv) That PW3 Kalu and PW4 Ganesh have categorically stated that the accused appellant Tulsiya also caused injury on the head of the deceased and when this aspect gets corroboration from the medical evidence, therefore, the case of the prosecution that both the accused appellants caused one-one injury on the head of the deceased has to be accepted and the findings of the learned trial Judge in this respect cannot be said to be erroneous or perverse one and rather they are based on correct appreciation of evidence on record. 19. So far as the argument that reliance on the statements of DW1 Dr. N.S. Kothari and the accused appellant Chokha as DW2 should have been placed by the learned trial Judge is concerned, it may be stated that from the prosecution evidence the fact that both the accused appellants gave one-one blow on the head of the deceased is well established and therefore, the learned trial Judge has rightly rejected the defence evidence. When there is a positive evidence that accused appellant Chokha caused injury on the head of the deceased, this aspect clearly negatived the defence version. Hence, the defence version was rightly rejected by the learned trial Judge. On point when accused persons were charged under section 302/149 Indian Penal Code and if some accused persons were acquitted of that charge, whether remaining accused persons can be convicted simpliciter for the main offence or not. 20. Hence, the defence version was rightly rejected by the learned trial Judge. On point when accused persons were charged under section 302/149 Indian Penal Code and if some accused persons were acquitted of that charge, whether remaining accused persons can be convicted simpliciter for the main offence or not. 20. In this respect, it may be stated here that in the present case, accused appellants Chokha and Tulsiya and four accused persons, namely, Jeta, Ganesh, Khema and Deva were charged for the offence under sections 148, 302/149 and 323/149 and all the accused persons including the present accused appellants were acquitted of the charges for the offence under sections 148, 323/149 Indian Penal Code and four accused persons, namely, Jeta, Ganesh, Khema and Deva were also acquitted of the charge for the offence under section 302/149 IPC, but in place of 302/149 IPC, the present accused appellants were convicted under-section 304 Part-I Indian Penal Code simpliciter. 21. The argument of the learned counsel for the accused appellants is that since four other accused persons have been acquitted of the charge for the offence under section 302/149 IPC, therefore, the present accused appellants could have not been convicted for the offence under section 304 Part-I Indian Penal Code simpliciter. In this respect, he has placed reliance on the decisions in (1) Lakhan Mahto and ors. V/s State of Bihar (1966 Cr. L.J. SC 1349) (2) Dalchand V/s The State (1982 Cr. L.J. 1477) 22. In my considered opinion, the above argument cannot be appreciated. In a case where there was constructive charge against some accused persons for example 302/34 or 302/149 Indian Penal Code and there was no specific charge for the offence under section 302 Indian Penal Code and if some accused persons were acquitted of the charge under section 302/149 or 302/34 IPC, rest accused persons could be convicted under section 302 Indian Penal Code simpliciter and for that, the decision of the Hon'ble Supreme Court in (3) Hem Raj V/s The State (Delhi Administration) ( AIR 1990 SC 2252 ) may be referred to. In that case, the accused persons were charged for the offence under section 302/34 IPC, but there was finding that one of the accussed persons alone inflicted injuries on deceased and participation of remaining accused was disbelieved and therefore, the accused appellant of that case inflicting injuries on deceased was convicted under section 302 Indian Penal Code simpliciter and in such circumstances, the Hon'ble Supreme Court held that there was no illegality in convicting the accused appellant of that case under section 302 simpliciter though there was a constructive charge against all the accused inclusive of appellant of that case under section 302 read with 34 IPC.The above view was further approved by the Hon'ble Supreme Court in (4) Salamat Ali and anr. V/s State of Bihar ( AIR 1995 SC 1863 ) and (5) Baldev Krishan V/s State of Haryana (AIR 1997 8C 1666) . 23. Therefore, if the learned trial Judge has convicted the accused appellants for the offence under section 304 Part-I Indian Penal Code simpliciter in place of 302/149 IPC, while acquitting four other accused persons of that charge, he has committed no illegality in doing so. 24. So far as the ruling relied upon by the learned counsel for the accused appellants in the case of Lakhan Mahto (supra) is concerned, the facts of that case stand distinguished from the facts of the present case as in that case, one of the accused, who was charged under section 302 Indian Penal Code was acquitted and therefore, rest could have not been convicted with the aid of Section 149 IPC, while this is not the position in the present case as the present accused appellants and four other accused persons were charged under section 302/149 Indian Penal Code and four accused persons were acquitted or the charge under section 302/149 Indian Penal Code and the present accused appellants were convicted under section 304 Part-I Indian Penal Code simpliciter Therefore, the above ruling would not be helpful to accused appellants. 25. In view of the law laid down by the Hon'ble Supreme Court in the case or Hem Raj (supra), the ruling of the Delhi High Court in the case of Dal Chand (supra) would not be helpful to the accused appellants. 26. 25. In view of the law laid down by the Hon'ble Supreme Court in the case or Hem Raj (supra), the ruling of the Delhi High Court in the case of Dal Chand (supra) would not be helpful to the accused appellants. 26. Before parting with the judgment, it may be stated here while convicting the accused appellants for the offence under section 304 Part-I IPC, the learned trial Judge has come to the conclusion that the act of the accused appellants was not covered by clause (1) of Section 300 IPC. The learned trial judge has specifically come to the conclusion that the injuries caused by the accused appellants were likely to cause death and from the words 'likely to cause death', he came to the conclusion that the act of the accused appellants fell under section 304 Part-I IPC. 27. The question for consideration is whether the findings of the learned trial Judge holding that the act of the accused appellants causing injuries, which were likely to cause death, would all under section 304 Part-I are correct one or not. 28. For convenience, relevant Clauses (1) and (2) of Section 300 1PC read as follows: "300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is done with the intention of causing death, or Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly .......... Fourthly ............ 29. In my considered opinion, the learned trial Judge has fallen into error while convicting the accused appellants under section 304 Part-I Indian Penal Code as when according to him, the act of the accused appellants was that it was done with the intention of causing such bodily injury as the offender knew which was likely to cause death, therefore, the case of the accused appellants would fall under clause (2) of Section 300 IPC. 30. It may be stated here that if the act of any accused is covered by Clauses (1), (2) & (3) of Section 300 IPC, that would amount to culpable homicide amounting to murder punishable under section 307. IPC. 31. 30. It may be stated here that if the act of any accused is covered by Clauses (1), (2) & (3) of Section 300 IPC, that would amount to culpable homicide amounting to murder punishable under section 307. IPC. 31. Whenever a Court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder" on the facts of a case, it will be convenient for it to approach the problems in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection, between the act of the accused and the death, lends to the second stage for considering whether the act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 I.P.C., is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304 depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304 I.P.C. 32. When the element of intention is missing and there is knowledge in such case, or where the accused has knowledge, but no intention that such blow was likely to result in death, that act would be covered by clause (4) of Section 300 Indian Penal Code and thus, it would be held that the offence committed would be culpable homicide not amounting to murder punishable under Part II of Section 304 I.P.C. 33. Thus, the position in respect of offences under Sections 302, 304 Part-I and 304 part II may be summarised as follows (i) That if the act of the accused is covered by Clauses First, Second and Third of Section 300 I.P.C., then it would amount to culpable homicide amounting to murder punishable under Section 302 I.P.C. (ii) That if the act of the accused is covered by any of the exceptions (five Exceptions) of Section 300 I.P.C., then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-I I.P.C. (iii) That if the act of the accused is covered by Clause (4) of Section 300 I.P.C., then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-II I.P.C. 34. Since in the present case the learned trial Judge has come to the conclusion that the act of the accused appellants was likely to cause death, which means he has covered the act of the accused appellants by clause (2) of Section 300 Indian Penal Code and when he has covered the act of the accused appellant by clause (2) of Section 300 Indian Penal Code and not by any of the exceptions of Section 300 IPC, therefore, he has wrongly convicted the accused appellants for the offence under section 304 Part-I Indian Penal Code and instead of 304 Part-I IPC, he should have convicted the accused appellants under section 302 IPC. By convicting the accused appellants under section 304 Part-I IPC, the learned trial Judge has fallen into misconception of law. 35. Since there no State appeal, therefore, this Court does not want to interfere with the findings of the learned trial Judge convicting the accused appellants under section 304 Part-I Indian Penal Code instead of 302 IPC, at this stage. 36. Apart from this, even for the offence under section 304-Part-I IPC, the learned trial Judge has awarded three years RI to the accused appellants, which appears to be lesser sentence and that sentence cannot be said to be just, reasonable and appropriate sentence. Since there is no State appeal for enhancement of sentence, therefore, at this late juncture, this Court does not want to issue notice for enhance of sentence. 37. For the reasons stated above, all the contentions raised by the learned counsel for the accused appellants stand rejected and this appeal is liable to be dismissed. Since there is no State appeal for enhancement of sentence, therefore, at this late juncture, this Court does not want to issue notice for enhance of sentence. 37. For the reasons stated above, all the contentions raised by the learned counsel for the accused appellants stand rejected and this appeal is liable to be dismissed. 38. Before concluding the judgment, it may be stated here that this Court in so-many judgments has made the position clear that while convicting the accused under section 302 or 304 Part-I or 304 Part-II IPC, the learned trial Judges must come to the definite conclusion on the point that the act of the accused falls under a particular clause. If the act of the accused is covered by Clauses First, Second, and Third of Section 300 I.P.C., it would amount to culpable homicide amounting to murder punishable under Section 302 I.P.C.IT the act of the accused is covered by any of the exceptions (Five Exceptions) of Section 300 I.P.C., it would amount to culpable homicide not amounting to, murder punishable under Section 304 Part-I I.P.C. If the act of the accused is covered by Clause (4) of Section 300 I.P.C., then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-11 I.P.C.Generally it is seen that the learned trial Judges write that the case is covered under section 302 or 304 Part-I or 304 fart-II without specifically covering the case in a particular clause of Section 300 IPC. In future, the learned trial Judges are directed to keep in mind the law laid down in this judgment.Accordingly, this appeal filed by the accused appellants is dismissed, after confirming the judgment and order dated 25.5.1987 passed by the learned Addl. Sessions Judge, Rajsamand.Since the accused appellants are on bail, therefore, they shall surrender before the learned trial court for serving out the remaining period of sentence.Appeal Dismissed. *******