JUDGMENT 1. - The appellants, three in number (herein after referred as to the 'accused') along with one Rewar Ram, were indicted before the learned Additional Sessions Judge (Fast Track) Jaipur District Jaipur in Sessions Case No.53/2001. Learned Judge vide judgment dated September 10, 2002 convicted and sentenced the appellants as under :Suresh and Smt. Naraini : U/s. 302 Indian Penal Code : Each to suffer Imprisonment for life and fine of Rs. 5000/- , in default to further suffer Simple Imprisonment One Year. U/s 341/34 Indian Penal Code : Each to suffer Simple Imprisonment for One Month and fine of Rs. 100, in default to further suffer Simple Imprisonment for Five Days. U/s 323/34 IPC Each to suffer Simple Imprisonment for Six Months and fine of Rs. 200/- , in default to further suffer Simple Imprisonment for One Month. U/s 324/34 IPC Each to suffer Simple Imprisonment for One Year and fine of Rs. 500/- , in default to further suffer Simple Imprisonment for Two Months. Meera :U/s. 302/34 IPC To suffer Imprisonment for life and fine of Rs. 5000/- , in default to further suffer Simple Imprisonment for One Year. U/s 341/34 Indian Penal Code : To suffer Simple Imprisonment for One Month and fine of Rs. 100/ - , in default to further suffer Simple Imprisonment for Five Days. U/s 323/34 IPC To suffer Simple Imprisonment for Six Months and fine of Rs. 200/- , in default to further suffer Simple Imprisonment for One Month. U/s 324/34 Indian Penal Code : To suffer Simple Imprisonment for One Year and fine of Rs. 500/- , in default to further suffer Simple Imprisonment for Two Months. The substantive sentences were directed to run concurrently. 2. A written report (Ex.P - 15) was submitted on February 25, 2001 at the Police Station Chandwaji by Ganga Ram (Pw.7) with the averments that on a land of joint ownership the branches of babool were being cut by Ram Narayan and his wife Janki, whereupon Suresh, Rewad, Naraini, Meera, Raju came armed with lathis and axes and asked Ram Narayan as to why he was cutting the tree. When Janki insisted to cut the tree she was given beating by Narayani, Meera and Raju. On hearing cries while Gulla Ram came running to intervene Suresh and Narayani gave blows with axe on his leg. When Janki insisted to cut the tree she was given beating by Narayani, Meera and Raju. On hearing cries while Gulla Ram came running to intervene Suresh and Narayani gave blows with axe on his leg. Meera and Rewar also inflicted blows with axe and lathi. Injured Gulla Ram was taken to the hospital. Initially case under sections 147, 148, 149, 307, 341 and 323 Indian Penal Code was registered but after the death of Gulla Ram section 302 Indian Penal Code came to be added. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Jaipur, District, Jaipur. Charge under Sections 341/34. 323/34, 324/34 and 302 Indian Penal Code were framed against Suresh and Smt. Narayani and against Rewar and Meera under sections 341/34, 323/34, 324/34 and 302/34 IPC. The accused denied the charges and claimed trial. The prosecution in support of its case examined as may as 28 witnesses. In the explanation under section 313 Criminal Procedure Code, the accused claimed innocence and stated that after compromise the tree of Babool came in their share and when the complainant party was cutting the tree they objected. They did not cause injuries and cross report was lodged by them. Two witnesses were examined by the accused in defence. Since Rewar died during the pendency of trial, proceedings were dropped against him. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated herein above. 3. The fact that death of Gulla Ram was homicidal has not been disputed. The Post-Mortem on the dead body of Gulla Ram was performed by Dr. Kishan Lal Dhanka (Pw.20) vide Autopsy Report (Ex.P - 18), according to which deceased sustained following ante mortem injuries:- "(1) Incised wound (chopped) of size 8.0 cm x 3.0 cm x bone deep on lower ⅓ of left leg posterior surface 20.0 cm from about left heel with clean cut margin and transversely placed with fresh clotted blood present on dissection there is posterior labial nerve, posterior labial artery, small saplinous vien and skin & muscle and soft tissue are cut at the same level with cut fracture of tibia bone on wound gaping with ante mortem haemotoma present. (2) Incised wound (chopped wound) leading to amputation of left knee joint at the level of upper margin of tibial head. (2) Incised wound (chopped wound) leading to amputation of left knee joint at the level of upper margin of tibial head. The amputation leg attached to thigh by skin tag & muscle of size 0.5 cm, total circumference of left leg at this level as 21.0 cm and size of wound is 16 cm x 7.0 cm x bone deep on further dissection the popliteal artey common peroneal nerve tibial nerve, sapelnous nerve, saplenous vien found cut. The upper border of tibial condyle also found cut fracture incised at he corresponding gap of muscle other tissue also found cut in the same plane with ante mortem haemotoma in the muscle plane and subcutaneous tissue. This wound is situated 44.0 cm above the level of heel with horizontally obliquely placed with clean cut margin. All above injuries are ante mortem in nature." The cause of death was shock and hemorrhage due to ante mortem injury No.2 which is self sufficient to cause death in ordinary course of nature. 4. We have heard the submissions and closely scrutinised the record. 5. The Prosecution case is founded on the testimony of informant Ganga Ram (Pw.7), Ram Narain (Pw.28), Janki (Pw.11), Manbhari (Pw.12), Jamna (Pw.13) and Mangi (Pw.14). In his deposition Ganga Ram stated that Narayani, Suresh and Meera were armed with axes, whereas Rewar had a lathi. At the outset Suresh inflicted injury on the foot of Gulla, thereafter Narayani gave axe - blow on his left foot and all the assailants gave beating to Gulla. Testimony of Ganga Ram has been corroborated by Ram Narain, Janki, Manbhari, Jamna and Mangi. Contention of learned counsel appearing for the accused is that since all the injuries sustained by the deceased were on non - vital part of the body the element of intention to cause death was missing and the accused could not have been convicted under section 302 IPC. It is also canvassed that attack was not premeditated or preplanned. The injuries received by the deceased were caused at the spur of moment, therefore the trial court has committed illegality in convicting and sentencing the accused. Refuting the contention learned Public Prosecutor supported the impugned finding and urged that the circumstances of the case unerringly show that the accused had intention to kill the deceased. 6. The injuries received by the deceased were caused at the spur of moment, therefore the trial court has committed illegality in convicting and sentencing the accused. Refuting the contention learned Public Prosecutor supported the impugned finding and urged that the circumstances of the case unerringly show that the accused had intention to kill the deceased. 6. It is well settled that for cases to fall within clause thirdly of section 300, it is not necessary that the offender intended to cause death, so long as the death ensues from the intention bodily injury or injuries sufficient to cause death in the ordinary course of nature. According to ratio indicated in Virsa Singh v. State of Punjab ( AIR 1958 SC 465 ) , even if the intention of accused was limited to infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. 7. Guidelines were issued by their Lordships of the Supreme Court in State of A.P. v. R. Punnayya ( AIR 1977 SC 45 ) to deal with the nature of offence as under:- "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 problem 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 leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in section 299. If the answer to this question is prime facie found in the affirmative, the stage for considering the operation of section 300 of Penal Code 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 IPC. 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 IPC. If the answer to this question is in 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 Penal Code." 8. Coming to the facts of the case on hand we find that there is a direct casual connection between the beating administered by the accused Suresh Chand and Narayni to the deceased and his death. The accused as already noticed, confined the beating to the legs of the deceased, therefore, it is argued that since the accused selected only non-vital part of the body of deceased for infliction the injuries, they could not be attributed the mens rea requisite for bringing the case under clause Thirdly of section 300. 9. From the evidence of Ganga Ram, Ram Narain, Janki, Manbhari, Jamna and Mangi, we find that there was no premeditation in the attack and it was almost an impulsive act. The cause of death of deceased was shock and haemorrhage due to injury on left knee joint. The deceased was removed to the hospital where he died. The treating Doctor was not examined by the prosecution to show as to what was the condition of deceased at the time when he was admitted to the hospital. A look at the post mortem report reveals that both the chambers of heart of deceased were empty and healthy. 10. In State of A.P. v. R. Punnayya (supra) the Doctor in post-mortem report noted that the heart of the deceased was found full of clotted blood. In injury No.6 which also was an internal fracture, the bone was visible through the wound. The treating doctor deposed that he was treating the injured, not only by sending fluids through his vein but also blood. In injury No.6 which also was an internal fracture, the bone was visible through the wound. The treating doctor deposed that he was treating the injured, not only by sending fluids through his vein but also blood. The condition of the injured was grave, therefore the doctor immediately sent the intimation to the Magistrate for recording his dying declaration. The Doctor also advised for immediate removal of the deceased to the bigger hospital. The treating doctor after finding that life of the patient was ebbing fast, took immediate, two fold action. First he put the patient on blood transfusion. Second he sent an intimation for recording his dying declaration. The Magistrate came there and recorded the statement. 11. Whereas in the instant case, we find that the cause of incident was a trivial dispute between Suresh Chand and Naraini on one side and Ram Narain and his wife Janki on the other side. The deceased Gulla Ram suddenly appeared in the scene and received injuries on non - vital part of the body. The injuries resulted in amputation of left knee joint. The deceased died in the Hospital and treating doctor was not examined. The ratio indicated in R. Punnayya's case (supra) is not applicable. 12. In Gurdeep Singh v. State of Rajasthan, 1980 (Supp.) SCC 432 , where both the hands of the victim were almost maimed by the shots fired by the accused convicted under section 326 Indian Penal Code and sentenced to three years Rigorous Imprisonment and fine of Rs. 500/- were found justified. From the facts and circumstances of the case we find that the case of the accused Suresh Chand and Naraini does not travel beyond section 326 Indian Penal Code. 13. So far as implication of accused Meera is concerned, we find many inconsistencies and contradictions in the testimony of Ganga Ram, Ram Narain, Janki,Manbhari, Jamna and Mangi. These witnesses although deposed that Meera had an axe and she too inflicted injury on the person of the deceased but as per post mortem report the deceased sustained two injuries and those injuries have been attributed to accused Suresh Chand and Naraini. Therefore possibility of over implication of accused Meera in the instant case cannot be ruled out. 14. These witnesses although deposed that Meera had an axe and she too inflicted injury on the person of the deceased but as per post mortem report the deceased sustained two injuries and those injuries have been attributed to accused Suresh Chand and Naraini. Therefore possibility of over implication of accused Meera in the instant case cannot be ruled out. 14. For these reasons we dispose of the appeal in following terms:- (i) We allow the appeal of appellant Smt. Meera and acquit her of the charges under sections 302/34, 341/34, 323/34 and 324/34 IPC. The appellant Meera is on bail, she need not surrender and her bail bonds stand discharged. (ii) We partly allow the appeal of appellants Suresh Chand and Smt. Naraini and instead of section 302 Indian Penal Code, we convict them under section 326 IPC. Since the appellants Suresh Chand and Smt. Naraini have remained in confinement for more than 34 months, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. We however impose the fine of Rs. 5000/- each on the appellants and grant one week time to deposit the fine. The fine if deposited shall be paid to the legal heirs of deceased Gulla Ram. The appellants Suresh Chand and Smt. Naraini, who are in jail shall be set at liberty forthwith, if not required to be detained in any other case. However, we acquit the appellants Suresh Chand and Smt. Naraini of the charges under sections 341/34, 323/34 and 324/34 Indian Penal Code. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. Appeal disposed of. *******