Honble BANSAL, J.–The instant appeal stems from the judgment dated Sept. 14, 1984 passed by learned Additional Sessions Judge No.1, Ajmer in Sessions Case No. 13/83 whereby he convicted and sentenced the appellant as under :- Ram Niwas and Bhanwarlal each u/Sec. 304 Part 1/34 IPC 10 years rigorous imprisonment and a fine of Rs. 2,000/- and in default of and in default of payment of fine to further undergo 6 months rigorous imprisonment. u/Sec. 323 IPC Fine of Rs. 1,000/- and in default to further undergo 3 months simple imprisonment. (2). Briefly stated the prosecution case, is that on Nov. 1, 1982 at 2:00 PM `parcha-bayan Ex.P5 of PW.4 Smt. Kajodi wife of Ganga Bisan aged about 50 years by caste Sadhu, resident of Village Manda was recorded by PW.8 Govind Singh, ASI, Police Station Kekri District Ajmer in General Hospital, Kekri wherein Smt. Kajodi stated that yesterday her son Rameshwar had gone to till his field with plough. In the afternoon Rameshwar released his bullocks and started taking his meals. His bullocks entered into the field of Ram Niwas who is her brother-in-law (Devar) and started grazing there. In that field Smt. Kailashi, daughter-in- law of Ram Niwas also was grazing her buffaloes. Smt. Kailash started abusing Rameshwar but he did not reply. Rameshwar took his bullocks back to his field. In the evening when her husband Ganga Bisan went to Chaarbhuja temple he was abused by Bhanwarlal, Dhan Raj son of Ram Niwas and Ram Niwas son of Dwarka Dass. Today at about 10:00 AM she and her husband were going for grazing their cows. When they reached behind `Gadh all the aforesaid persons armed with lathies came there. They stopped her husband and gave beating to him with lathies. On hearing her and her husbands hue and cry her son Rameshwar (PW.5) who was ploughing his field situated near the place of incident reached on the spot. When Rameshwar tried to rescue them he was also beaten up by the assailants. It was also stated by Smt. Kajodi in her parcha-bayan Ex.P5 that they were saved by Ratan Singh Rajput, Rameshwar Brahmin and Bheru Gurjar. While intervening Bheru also sustained injury on his forearm. Because of beating her husband and son became unconscious. Thereafter she took them to hospital and got them admitted. It was also stated by Smt. Kajodi in her parcha-bayan Ex.P5 that they were saved by Ratan Singh Rajput, Rameshwar Brahmin and Bheru Gurjar. While intervening Bheru also sustained injury on his forearm. Because of beating her husband and son became unconscious. Thereafter she took them to hospital and got them admitted. On the basis of the parcha- bayan Ex.P5 SHO Police Station Kekri registered a case under Sections 323 and 341 IPC and investigation commenced. Formal FIR is Ex.P.8. In the course of investigation Investigation Officer Govind Singh, ASI (PW.8) inspected the place of occurrence and prepared site-plan Ex.P.1. Both Ganga Bisan and his son Rameshwar were medically examined by PW.2 Dr. L.K. Bhargava, Medical Officer-in-charge, Government Hospital, Kekri and he prepared injury reports Ex.P.2 and Ex.P3 respectively. Ganga Bisan expired on Sept. 7, 1982 in the hospital. PW.2 Dr. L.K. Bhargava conducted post-mortem examination on the dead body and he prepared post-mortem report Ex.P.4. On the death of Ganga Bisan case was converted from Section 323 & 341 IPC to that of 302 IPC and the investigation proceeded further. Inquest report of the dead-body of Ganga Bisan Ex.P.13 was prepared on Nov. 4, 1982. Safa (turban) and shirt which Ganga Bisan was wearing at the time of incident there seized and sealed by the Investigating Officer vide Ex.P.6. Dhoti belonging to injured Rameshwar was also seized and sealed vide Ex.P.7 statements of the witnesses under Sec. 161 Cr.P.C. were recovered. Lathies were recovered from their house and at their instance vide Ex.P11 and Ex.P12 respectively. On completion of investigation a chargesheet was laid against both the appellants in the court of Judicial Magistrate, Kekri who committed the case to the court of learned Sessions Judge, Kekri. On transfer the file was received by learned Addl. Sessions Judge No.1, Ajmer. Co-accused Dhan Raj who was below 16 years of age, was challaned in Children Court. (3). Learned Additional Sessions Judge framed charges under Sections 304 Part I read with Section 34 and Section 323 IPC against the appellants who pleaded not guilty and claimed to be tried. (4). In order to prove the charges the prosecution examined as many as 10 witnesses. In their statements recorded under Section 313 Cr.P.C. the appellants pleaded innocence. Bhanwarlal also stated that he was falsely implicated on account of enmity. (4). In order to prove the charges the prosecution examined as many as 10 witnesses. In their statements recorded under Section 313 Cr.P.C. the appellants pleaded innocence. Bhanwarlal also stated that he was falsely implicated on account of enmity. Appellant Ram Niwas stated that because of land dispute he was beaten up by Ganga Bisan, Rameshwar and wife of Ganga Bisan. When they were giving beating to him his son Dhanraj snatched lathi from Ganga Bisan and rescued him otherwise he would have been killed by Ganga Bisan and others. He got himself medically examined and remained under treatment for 23 days in the hospital. When he was in police custody he requested the police to register his case but the police did not register his case. Thereafter he filed a complaint in the court. In defence 5 witnesses were examined. (5). Learned Additional Sessions Judge after hearing the final submissions convicted and sentenced the accused-appellants as indicated hereinabove. (6). I have heard learned counsel for the appellants, learned Public Prosecutor and have also perused the material on record. (7). There is no dispute that the deceased Ganga Bisan met with homicidal death and this fact is established by medical evidence on record. PW.2 Dr. L.K. Bhargava stated that on Nov. 1, 1982 at 12:00 noon he examined Ganga Bisan son of Dwarka Dass aged 50 years resident of Manda in hospital Kekri and found following injuries on his person - (i) Lacerated wound 1/2 x 0.1 x 0.1 on the left side of scalp on the frontal line. (ii) Lacerated wound 1-1/2 x 0.4 x 0.1 of left side of the parietal line on the scalp. (iii) Lacerated wound 1 x 0.1 x 0.1 on the mastoid region. (iv) Swelling 4 x 4 on the mastoid region. (v) Bruise 6 x 1 on the right side of abdomen. (vi) Abrasion 5 x 0.3 on the left side of left scapular line. (8). Dr. Bhargava also stated that all the injuries were caused but blunt weapon. Injuries No.4 to 6 were simple in nature. For other injuries X-ray was advised. Duration of injuries was within 24 hours. He prepared injury report Ex.P.2. (9). Dr. Bhargava further stated that on Nov. 7, 1982 at 8.45 AM he conducted post mortem examination of the dead body of Ganga Bishan and found the aforesaid injuries mentioned in injury report Ex.P.2. For other injuries X-ray was advised. Duration of injuries was within 24 hours. He prepared injury report Ex.P.2. (9). Dr. Bhargava further stated that on Nov. 7, 1982 at 8.45 AM he conducted post mortem examination of the dead body of Ganga Bishan and found the aforesaid injuries mentioned in injury report Ex.P.2. He also stated that left parietal bone, right parietal bone, frontal bone and mastoid bone were found fractured. Menigeal artery of the brain was also found ruptured. There was haematoma in the brain. In his opinion the cause of death was severe haemorrhagic shock, rupture of the medial Menigeal artery of the left side of brain. He further stated that the aforesaid injuries were sufficient in the ordinary course of nature to cause death. Death had occurred within 10-12 hours before the post-mortem examination. All the injuries were ante- mortem in nature. (10). Learned counsel did not challenge the testimony of Dr. Bhargava and in my opinion also he is a trust-worthy witness and his testimony can be relied upon. Thus, it has been proved beyond reasonable doubt by the prosecution that the deceased Ganga Bisan met with the homicidal death. (11). PW.2 Dr. Bhargava also stated that on the same day at 12:20 PM he examined Rameshwar Son of Ganga Bisan and found following injuries on his person : (i) Lacerated wound 4 x 0.3 x 0.2 on the left parietal region ; (ii) Swelling 1 x 1 on the left arm at the upper end; (iii) Bruise 3 x 1 on the upper end of left forearm. (iv) Bruise 7 x 1 on the right side of chest at the lower end. (v) Swelling 3 x 3 on the right arm on the lateral side of axilla. (12). It was also stated by Dr. Bhargava that all the injuries were caused by blunt weapon. For injury No.1 X-ray was advised. The remaining injuries were simple in nature. Duration of the injuries was within 24 hours. He prepared injury report Ex.P.3. (13). On close and careful scrutiny of the above statement of Dr. Bhargava it has been found reliable and it proves that when Rameshwar was examined the aforesaid injuries were found on his person. In view of the duration of injuries it can safely be held that Rameshwar sustained these injuries in the alleged incident. (14). (13). On close and careful scrutiny of the above statement of Dr. Bhargava it has been found reliable and it proves that when Rameshwar was examined the aforesaid injuries were found on his person. In view of the duration of injuries it can safely be held that Rameshwar sustained these injuries in the alleged incident. (14). Learned counsel for the appellants contended that PW.4 Smt. Kajodi who is the wife of the deceased Ganga Bishan has admitted in his deposition that at the time of the incident the deceased was armed with lathi. Appellant Ram Niwas had also received injuries in the incident and remained in the hospital for more than 20 days. Learned counsel contended that when the deceased Ganga Bishan was giving lathi blows on the person of Ram Niwas, Dhanraj s/o Ram Niwas snatched lathi from Ganga Bishan and saved his father otherwise he would have been killed by Ganga Bishan. If injuries had been caused to Ganga Bishan by Dhanraj these were caused in exercise of the right of private defence of his fathers body and hence no offence was committed by the appellants. Learned counsel further canvassed that true genesis of the incident has been suppressed by the prosecution. Injuries of appellant Ram Niwas have not been explained. Therefore, the prosecution has failed to establish guilt of the appellant. In the alternate learned counsel also contended that the incident took place all of a sudden. There was no previous enmity between the parties and Ganga Bishan died after 6 days from the incident. Therefore, case under Section 304 Part 1/34 IPC is not made out but at the most the appellants can be held guilty for the offence under Section 325 IPC for having caused injuries on the person of Ganga Bishan which resulted in his death. Learned counsel for the appellants placed reliance on Ramlal vs. Delhi Administration (1) State of Gujarat vs. Bhand Jusub Mamad (2). (15). Learned Public Prosecutor supported the impugned judgment. (16). I have given my thoughtful consideration to the aforesaid submissions made by learned counsel and have also gone through the rulings cited by him. (17). PW.4 Smt. Kajodi wife of Ganga Bishan stated that on the day of incident at about 10-11 AM his husband Ganga Bishan was taking cows to his well. She was following him. (16). I have given my thoughtful consideration to the aforesaid submissions made by learned counsel and have also gone through the rulings cited by him. (17). PW.4 Smt. Kajodi wife of Ganga Bishan stated that on the day of incident at about 10-11 AM his husband Ganga Bishan was taking cows to his well. She was following him. On the way Bhanwarlal, Ram Niwas and Dhanraj belaboured him and caused the injuries with lathies on his person. When she and her husband made hue and cry her son Rameshwar came there. Rameshwar was also beaten up by the appellants and Dhanraj. Bheru Gurjar also reached at the spot. The ribs of her husband were broken and he became unconscious. Thereafter, her husband and son Rameshwar were taken to hospital Kekari for treatment. After 6 days her husband died. Her parcha-bayan Ex.P.5 had been recorded by the police. PW.5 Rameshwar who himself had sustained injuries in the incident supported the version of him mother Smt. Kajodi. PW.5 Rameshwar deposed that on hearing hue and cry of his mother he went to the place of occurrence where he found both the appellants and Dhanraj inflicting injuries on the person of his father. When he made attempts to save his father he was also caused injuries by the appellants with lathies. Banna @ Ratan Singh, Bheru, Rameshwar saved them. He also stated that because of injuries he became unconscious and regained consciousness in the hospital after 3 days. Lateron his father died in the hospital. It was also stated by Rameshwar that on previous day of the incident he had gone to his field to till it. When he released his bullocks they started grazing grass of Ram Niwas. Wife of Bhanwarlal abused him but he brought his bullocks to his field. In the evening at about 6:00 PM when his father was going to the temple Ram Niwas, Bhanwarlal abused his father. PW.6 Bheru deposed that when he was coming back from his field to his village he found Ganga Bishans wife crying near village and Ganga Bishan lying there. He also found Ram Niwas, Bhanwarlal and Dhanraj inflicting injuries with lathies to Rameshwar. Blood was oozing from the head of Ganga Bishan. Bheru further stated that after the beating Ganga Bishan and Rameshwar were taken to hospital. He also found Ram Niwas, Bhanwarlal and Dhanraj inflicting injuries with lathies to Rameshwar. Blood was oozing from the head of Ganga Bishan. Bheru further stated that after the beating Ganga Bishan and Rameshwar were taken to hospital. In his cross-examination he stated that he did not see any injury on the person of the appellants. PW.9 Ratan Singh also supported the prosecution. He deposed that both the appellants and Dhanraj had inflicted injuries with lathies on the person of Ganga Bishan and when Rameshwar reached at the spot he was also beaten by them. Smt. Kajodi was present there. (18). On close and, careful scrutiny of the testimony of the aforesaid witnesses I have found it trustworthy. Their testimony gets corroboration from medical evidence also as stated above. In the incident Rameshwar had sustained injuries and therefore, his presence at the time when his father was inflicted injuries stands proved. (19). In Surjeet Singh vs. State of Punjab (3), it was held that ``nephew of the deceased, who had suffered grievous injuries in the occurrence was a natural and stamp witness. In Sardul Singh vs. State of Punjab (4), it was indicated that the presence of witness, who received injuries during the course of incident cannot be doubted. Bankiya vs. State of Maharashtra (5), was the case wherein Honble Supreme Court observed that the presence of the injured witness at the scene of occurrence cannot be doubted and being victim themselves, they would not leave out real assailants and substitute them with innocent persons. (20). It is true that PW.4 Smt. Kajodi is the wife of the deceased but only on this ground her testimony cannot be discarded. (21). The Apex Court in Lehna vs. State of Haryana (6), held as under : ``We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In State of Punjab vs. Jugraj Singh & Ors. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. In State of Punjab vs. Jugraj Singh & Ors. (7), while reiterating the same rule, the Apex Court indicated that the testimony of the witnesses could not be discarded only on the ground that they happened to be the relations of the deceased. The same effect are the decisions in Ashok Kumar Pandey vs. State of Delhi (8) and Bhagwan Singh & Ors. vs. State of MP (9), Hukum Singh and others vs. State of Rajasthan (10), Dalveer Kaur vs. State of Punjab (11), Sukhdeo vs. State of Rajasthan (12). (22). Both Bheru and Ratan Singh are independent witnesses and their testimony has rightly been relied upon by learned Additional Sessions Judge. Therefore, I have come to the conclusion that the prosecution has succeeded in proving that both the appellants had caused injuries with lathies on the person of Ganga Bishan and Rameshwar. Because of the injuries sustained by Ganga Bishan he died after 6 days of the incident. Rameshwar had sustained only simple injuries in the incident. No X-ray report was submitted by the prosecution during trial. (23). As stated above learned counsel for the appellants contended that the prosecution has failed to explain the injuries sustained by appellant Ram Niwas and therefore the prosecution case he held false and must be thrown out. I have given my thoughtful consideration to this submission. It is true that the prosecution has not explained the injuries sustained by appellant Ram Niwas. As per the version of PW.2 Dr. Bhargava he examined appellant Ram Niwas on Sept. 1, 1982 at 6.30 PM and prepared injury report. The photo copy of that injury report is Ex.D.1. The injuries mentioned in Ex.D1 were found on the person of Ram Niwas. As per Ex.D.1 there were two bruises and one swelling on the person of Ram Niwas. These injuries were simple in nature and caused by blunt weapon. In Dharminder vs. State of H.P. (13), Honble the Supreme Court held. The injuries mentioned in Ex.D1 were found on the person of Ram Niwas. As per Ex.D.1 there were two bruises and one swelling on the person of Ram Niwas. These injuries were simple in nature and caused by blunt weapon. In Dharminder vs. State of H.P. (13), Honble the Supreme Court held. ``Learned amicus curiae, appearing for the appellants has vehemently urged that the prosecution has suppressed the injuries of Durga Nand and that by itself is sufficient to throw out the case of the prosecution since injuries of Durga Nand remain unexplained. Therefore, their version of having caused injuries to the complainant side in self-defence is to be accepted. Reliance has been placed on Takhaji Hiraji vs. Thakore Kubersingh Chamansing ( 2001 (6) SCC 145 ). No doubt in view of the observations made in the abovenoted case, the prosecution is under duty to explain the injuries on the accused persons but it has further been observed in para 17 of the judgment that non- explanation of injuries of the accused persons does not necessarily lead to the conclusion that the prosecution case is false and must be thrown out. It is further observed that : (SCC P. 154, para 17). ``Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. Another decision which has been referred to is reported in Rajender Singh vs. State of Bihar ( 2000 (4) SCC 298 ). It is on the same proposition as laid in the case of Takhaji. It has been observed that non-explanation of injuries on the accused, ipso facto cannot be held to be fatal to the prosecution case. It is also observed, ordinarily prosecution is not obliged to explain each and every injury on the accused even though injuries might have been caused during the course of occurrence and they are minor in nature but there the injuries are grievous, non- explanation of such injuries attracts the court to look at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident. (24). (24). In another case Sekar @ Raja Sekharan vs. State Represented by Inspector of Police, T.N. (14), the Apex Court indicated that non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (25). Keeping in view the above principle I have scanned and scrutinized the prosecution evidence and in our opinion the prosecution evidence qua the appellants is consistent and trustworthy. Apart from that, injuries sustained by appellant Ram Niwas were minor and superficial. Therefore, non-explanation of injuries of appellant Ram Niwas does not affect the prosecution case and it cannot be held that the prosecution case is liable to be thrown out. (26). It was also contended by learned counsel for the appellants that when the deceased Ganga Bishan was giving lathi blows on the person of Ram Niwas, Dhanraj s/o Ram Niwas snatched lathi from Ganga Bishan and saved his father otherwise he would have been killed by Ganga Bishan. If injuries had been caused to Ganga Bishan by Dhanraj or the appellants these injuries were caused in exercise of right of private defence of body and hence no offence was committed by the appellants. Learned counsel contended that because of the injuries appellant Ram Niwas had to remain in hospital for 23 days as was clear from certificate Ex.D.2 issued by Dr. Bhargava. (27). Honble the Supreme Court in Sekar @ Raja Sekharan vs. State Represented by Inspector of Police, T.N. (supra) held - ``The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation, is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omissions on the part of the prosecution to explain the injuries (See Laksami Singh vs. State of Bihar ( 1976 (4) SCC 394 ). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 delas with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offence of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 1006 is controlled by controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence. (28). The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence. (28). The above decision of Honble Apex Court is fully applicable to the facts of the instant case. As stated above all the three injuries sustained by appellant Ram Niwas were minor and superficial. In certificate Ex.D.2 it was mentioned by Dr. Bhargava that the patient was in good condition. In his deposition PW.2 Dr. Bhargava stated that whenever Ram Niwas came to him he made one complaint or the other. Sometimes Ram Niwas complained that he was having pain in his hand and sometimes he said that he was having stomachache. Dr. Bhargava also stated that clinically Ram Niwas did not suffer fracture. In view of the statement of Dr. Bhargava I am of the opinion that to create a false defence Ram Niwas had remained admitted in the hospital. Learned trial Judge has disbelieved the defence version mentioning various reasons in his judgment and I am in complete agreement with the learned Additional Sessions Judge. Dhanraj being a lad of around 15 years of age could not snatch lathi from Ganga Bishan and thereafter give lathi blows on the person of Ganga Bishan and Rameshwar. Having gone through the entire material on record I have come to the conclusion that the appellants or Dhanraj did not inflict the injuries on the person of the deceased in exercise of the right of private defence of body. Hence the above contention of learned counsel for the appellants has no force. (29). Now the question for consideration arises as to what offence has been committed by the appellants. It appears that the incident took place all of a sudden. Ganga Bishan died after six days of the incident. As per the statement of Dr. Bhargava, Ganga Bishan had sustained only six injuries. Two injuries were found on the head Three simple injuries were on the non-vital part of the body. One simple injury was on the head. It is not clear from the statement of Dr. Bhargava that which of the injuries found on the head of Ganga Bishan was fatal. No charge under Section 302 IPC was framed against the appellants. Two injuries were found on the head Three simple injuries were on the non-vital part of the body. One simple injury was on the head. It is not clear from the statement of Dr. Bhargava that which of the injuries found on the head of Ganga Bishan was fatal. No charge under Section 302 IPC was framed against the appellants. Instead charge under Section 304 Part I read with 34 IPC was framed against the appellants the appellants have been convicted by the trial Court under Section 304 Part I read with 34 IPC. Thus it is clear that the appellants had no intention to cause death of Ganga Bishan. In view of the facts of the case I am of the opinion that there was no common intention of the appellants to cause such bodily injury on the person of the deceased which was sufficient in ordinary course of nature to cause death or likely to cause death. All the facts taken individually or even jointly together show that if at all the common intention could have been merely to commit an assault and inflict some injuries on the person of Ganga Bishan. In Sardul Singh vs. State of Haryana (15), Honble Supreme Court held that : ``The next important question is as to what would be the nature of the offence really committed, on the facts proved by the prosecution. The sticks said to have been used and recovered are of `poplar tree, the wood of which was considered to be soft and light and stated to be usually used for manufacturing matchsticks. While testifying on oath before court, PW.8 has only stated that he and the deceased `should not be allowed to go and not allowed to go alive or must be finished. This factor taken together with the nature of sticks used and the admitted rivalry on account of some elections would indicate that the accused meant at best, to give a sound thrashing to the victim. Since it was during night time, some of the blows might have also landed on the vital portion of the head, even in the absence of any deliveration intention to kill and, therefore, be possibly inferred from the facts proved. The intention to cause death or cause such bodily injury as was likely to cause death in the normal or ordinary course cannot be readily imputed to the accused. The intention to cause death or cause such bodily injury as was likely to cause death in the normal or ordinary course cannot be readily imputed to the accused. Taken individually or even jointly together, if at all the common intention could have been merely to commit an assault and inflict some injuries but not to cause such injuries as would or is likely to cause or result in death. Therefore, A-1 and A-3 could not be condemned to have committed the murder, though that seems to have been unintended ultimate result. On the facts proved, the accused could only be safely convicted under Section 325 IPC and not under Section 302 IPC. The plea that it would attract only punishment under Section 323 IPC cannot be countenanced having regard to the grievous nature of the injuries sustained by the victim. These appeals, therefore, merit acceptance only in part, not for any clean acquittal, but for acquittal in respect of the offence under Sec. 302 IPC and instead conviction of both the appellants under Sec. 325 IPC read with section 34 IPC. (30). It is not clear from the statements of eye-witnesses that which of the appellants had inflicted fatal blow on the head of Ganga Bishan. As per the version of PW.2 Dr. Bhgargava parietal bones and frontal bones of Ganga Bishan were found fractured. This fact also proves that the appellants had common intention to cause grievous injury on the person of Ganga Bishan. In Ram Lal vs. Delhi Administration (supra), the Apex Court has held as under : ``No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ramlal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. The finding of the High Court was that the appellant Ramlal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, the appellants conviction under Section 302 IPC was patently incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325 IPC read with section 34. (31). In view of the above quoted decisions of the Apex Court in my opinion the appellants are liable under Section 325 read with 34 IPC and not under Section 304 Part I read with 34 IPC. They have also been found guilty under Section 323 IPC for having caused simple injuries on the person of Rameshwar by the trial Court and in my opinion also the appellants have rightly been convicted for this offence. (32). Now the question of sentence arises for consideration. The incident took place in 1982. Appellant Ram Niwas has remained in custody from 23.9.1982 to 22.12.1982 and 14.9.1984 to 22.10.1994. The appellant Bhanwarlal has remained in custody from 9.9.1982 to 10.12.1982 and 14.9.1984 to 22.10.1984. (32). Now the question of sentence arises for consideration. The incident took place in 1982. Appellant Ram Niwas has remained in custody from 23.9.1982 to 22.12.1982 and 14.9.1984 to 22.10.1994. The appellant Bhanwarlal has remained in custody from 9.9.1982 to 10.12.1982 and 14.9.1984 to 22.10.1984. Therefore, in the ends of justice I direct the appellants to suffer the sentence of imprisonment to the period already undergone by him and a fine of Rs. 20,000/- such under Section 325 read with 34 IPC. Their conviction and sentence under Section 323 IPC deserves to be confirmed. (33). Consequently the appeal of the appellants Ram Niwas and Bhanwarlal is partly allowed. They are acquitted of the charge under Section 304 Part 1 IPC. Instead I convict them under Section 325 read with 34 IPC and sentence each of them to the period already undergone by them in detention and a fine of Rs. 20,000/- and in default of payment of fine to further suffer one years simple imprisonment. Their conviction and sentence of fine under section 323 IPC is maintained. Two months time is given to the appellants to deposit the fine failing which the trial Court shall issue arrest warrant against them and send them to jail to undergo one years simple imprisonment in default of payment of fine. Out of fine deposited by the appellants Rs. 40,000/- shall be paid as compensation to the Ganga Bishan.