K. K. MISRA, J. This criminal appeal has been filed against the judgment and order dated 8-9-81 passed by Shri V. P. Mathur, the then Sessions Judge, Fatehpur in Sessions Trial No. 546 of 1980 whereby he convicted the appellants Kalloo, Tulli, Munnu and Deshraj under Section 302 IPC and sentenced them to imprisonment for life. 2. The prosecution case was that 4-5 months before the occurrence a dacoity had been committed at the house of the deceased Babu Lal and his brother Ramdin. It was suspected that Kalloo, Tulli and Deshraj were involved in the said dacoity. Babu Lal gave currency to this suspicion. These three accused and the fourth one Munna, close friends and associates took ill of it. 3. On 8-5-78 in the morning the complainant Durga Prasad alongwith his uncle Babu Lal deceased had started for Kharsenpur to fetch some labourers for pounding their Arhar. They could not find the person (Sri Pal) through whom they wanted to procure labourers. Therefore, Durga Prasad offered to stay back in Kharsenpur and contact Sripal for the purpose and at about 11 a. m. Babu Lal was returning to his village. When he reached the field of Panditain of Bhadwa, the four accused persons armed with Lathis surrounded him and started assaulting with a view to kill him. Babu Lal cried out. The scene of occurrence was only about a furlong away from the Abadi of village Kharsenpur and his cries were distinctly heard by the people of that village as well as Durga Prasad P. W. 1, Mahadev and Rajaram who were present at their doors in the village close to the end of the Abadi. They witnessed from the outskirts of the village what was happening in the agricultural field of Panditain. They as well as Durga Prasad rushed towards the scene of occurrence. Ram Asarey P. W. 4 who was returning from his Khalihan and had reached the outskirts of village Kharsenpur near the house of Sunder Pasi, heard the cries and saw what was happening. He also rushed and thus a large number of witnesses including these four & Ors. came running with their Lathis and reached near the Mend of the agricultural field of Panditain. He also rushed and thus a large number of witnesses including these four & Ors. came running with their Lathis and reached near the Mend of the agricultural field of Panditain. They were all the time crying and challenging the culprits and by the time they reached near the field, the culprits had already caused fatal injuries to the deceased Babulal. On seeing the witnesses arriving, they ran away towards village Hardauli situated towards the south-west of the field in question. A chase was given to them for a distance of about half a furlong but they could not be apprehended. Then the witnesses returned back to the field. They found Babulal lying mortally wounded but still gasping. Durga Prasad went to his village and brought the buffalo cart of Babulal, removed him from the field to the cart and then proceeded towards the Police Station to lodge the report and arrange for the treatment of Babulal. While he was on the way and had not yet reached police station Malwan, Babulal expired. Therefore, his dead-body was ultimately brought to the Thana where Sri Devi Dayal Dixit P. W. 5, Station Officer was present. He took the dead-body into custody and after appointing Panchas carried out inquest on the dead-body with the preparation of other necessary papers vide memo Ext. Ka-2. 4. P. W. 7 Dr. M. M. S. Khan, Medical Officer, District Hospital, Fatehpur conducted the post-mortem examination of the dead-body of the deceased Babulal on 9-5-78 at 2. 10 p. m. He found the deceased aged about 50 years and a day had passed since he died. He found the following ante mortem injuries on the dead-body. (1) Abraded contusion 5 cms. x 3 cms present, 1. 5 cms behind the right ear. (2) Abraded contusion 5 cms. x 2. 5 cms over the posterior aspect of lower third of right fore-arm. Bones underneath were fractured. (3) Abraded contusion 7. 5 cms. x 2. 5 cms present over the outer aspect of middle of right thigh. (4) Abraded contusion 5 cms. x 2. 5 cms present over the right knee. (5) Abraded contusion 3. 5 cms. x 2. 5 cms present over the left knee. (6) Abraded contusion 7. 5 cms. x 2. 5 cms present over the outer aspect of upper third of left thigh. (7) Contusion 12. 5 cms. (4) Abraded contusion 5 cms. x 2. 5 cms present over the right knee. (5) Abraded contusion 3. 5 cms. x 2. 5 cms present over the left knee. (6) Abraded contusion 7. 5 cms. x 2. 5 cms present over the outer aspect of upper third of left thigh. (7) Contusion 12. 5 cms. x 5 cms present over the left infrascapular region. (8) Contusion 10 cms. x 2. 5 cms present, 5 cms below the injury No. 7. (9) Contusion 7. 5 cms 2. 5 cms present 7. 5 cms below the injury No. 8. (10) Contused swelling 12. 5 cms x 7. 5 cms present over the left side of back 5 cms above the left iliac crest. (11) Contused swelling 12 cms. x 7. 5 cms present over the left gluteal region. (12) Contused swelling 12. 5 cms. x 10 cms present over the right infrascapular region. (13) Abraded contusion 10 cms. x 2. 5 cms present 2. 5 cms below injury No. 12. 5. 3rd, 4th and 5th right ribs had been fractured posteriorly and so were the 7th and 8th left ribs. Pleura was lacerated. Left and right lungs were also lacerated. 6. The Doctor opined that the death had occurred due to haemorrhage and shock. 7. The accused appellants in their statements recorded under Section 313 Cr. P. C. denied the prosecution story and further stated that they had falsely been implicated in the case due to enmity. 8. In order to prove its case against the accused appellants, the prosecution examined seven witnesses in all. P. W. 1 Durga Prasad was the complainant and the real nephew of the deceased Babulal. He had accompanied Babulal to Ojhee Kharsenpur and he was also an eye-witness of the occurrence. P. W. 2 Mahadev, P. W. 3, Rajaram and Ram Asarey P. W. 4 were of Ojhi Kharsenpur and they were also eye- witnesses of the occurrence. The other witnesses produced by the prosecution were of formal nature P. W. 5, Devi Dayal Dixit, Station Officer, P. S. Malwan was the Investigating Officer of the case. 9. The trial Court found the case set up against the accused appellants fully proved and convicted and sentenced them as above. 10. The appellant No. 1 Kalloo and appellant No. 4 Deshraj died during the pendency of appeal. Consequently, their appeal has abated as per order dated 26-7-2004. 9. The trial Court found the case set up against the accused appellants fully proved and convicted and sentenced them as above. 10. The appellant No. 1 Kalloo and appellant No. 4 Deshraj died during the pendency of appeal. Consequently, their appeal has abated as per order dated 26-7-2004. Now, we are concerned only with the appeal of appellant No. 2 Tulli and appellant No. 3 Munnu. 11. We have heard Sri Kamal Krishna for the appellants and Sri K. P. Shukla, learned A. G. A. for the State. It has first been submitted for the appellants that no conviction could be recorded on the basis of the evidence adduced by the prosecution. eye-witness has narrated the previous background and the details of the incident. He has been supported by three other eye-witnesses named in the F. I. R. , none of whom had any animus against the accused appellants to depose falsely. All these witnesses withstood the test of cross-examination firmly. Though P. W. 1 Durga Prasad was a close relative of the deceased but there is nothing to infer that he would let the real culprits go scot-free and would substitute the accused appellants for them. P. W. 2 Mahadev had met Durga Prasad only a little before the occurrence as elicited from his cross- examination. It was established from the testimony of all the eye-witnesses that distance between the villages Durja ka purwa and Ojhee Kharsenpur was only few furlongs. The field of Panditain, namely, Smt. Ram Devi was in between, about one furlong away from the Abadi of Kharsenpur. The incident took place here. The witnesses rushed to the spot on hearing cries. Mahadev and Raja Ram were present at their doors. Ram Ashray was returning from his Khalihan and had reached near the house of Sunder Pasi at the outskirts of village Kharsenpur when he heard the cries. All the four eye-witnesses saw the accused appellants assaulting Babu Lal with Lathis. 13. The post-mortem report proved that a large number of Lathi injuries were inflicted on Babu Lal. As to the time of the incident, even a suggestion was made by the defence in the cross-examination of P. W. 1 Durga Prasad that Babu Lal was assaulted in noon hours in the jungle, though the same was denied. 14. 13. The post-mortem report proved that a large number of Lathi injuries were inflicted on Babu Lal. As to the time of the incident, even a suggestion was made by the defence in the cross-examination of P. W. 1 Durga Prasad that Babu Lal was assaulted in noon hours in the jungle, though the same was denied. 14. After carefully examining the evidence of the eye-witnesses produced at the trial, we find that they are natural witnesses and they have deposed about the incident consistently. We find no reason to discard their evidence. The trial Court rightly believed their testimony. Thus, the prosecution succeeded in proving its case against the accused appellants beyond any reasonable doubt. 15. Learned Counsel for the appellants, in the alternative, submitted that no deadly weapons were used in the incident as all the accused were armed with Lathis only. In these circumstances, the conviction of the accused appellants under Section 302 IPC is not sustainable in law and the offence committed by the accused appellants cannot travel beyond Section 304 Part II I. P. C. 16. We find force in the above submission of the learned Counsel for the appellants. All the eye- witnesses have deposed that they saw the accused appellants assaulting the deceased with Lathis. There is no mention of the fact in their statements that the accused appellants used any other weapon besides Lathis. The injuries sustained by the deceased also correspond to Lathis, (blunt weapons) used by the accused appellants. 17. Culpable homicide is murder 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. The intention to cause the requisite type of injury is absolutely necessary. The third clause of Section 300 IPC views the matter from a general standpoint. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The intention of an accused is to be gathered from the weapon used and the part of the body where injuries were caused. After going through the ante-mortem injuries sustained by the deceased, we find that mostly injuries were on non-vital parts of the body. The weapons used by the accused appellants were Lathis, a blunt weapon. The intention of an accused is to be gathered from the weapon used and the part of the body where injuries were caused. After going through the ante-mortem injuries sustained by the deceased, we find that mostly injuries were on non-vital parts of the body. The weapons used by the accused appellants were Lathis, a blunt weapon. Therefore, knowledge and intention on the part of the accused appellants to cause death of the deceased is not borne out. Due to the earlier episode of dacoity, the accused became inimical to the deceased and thought of teaching a lesson to him by giving repeated Lathi blows which resulted in so many injuries on his body. But no fatal injury was sustained by the deceased on vital part of the body. It should reasonably be inferred that the act was done by the accused appellants with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as was likely to cause death. The offence is, therefore, covered by Part II of Section 304 I. P. C. They were acting in furtherance of their common intention. Therefore, it will be in the interest of justice if the accused appellants are convicted under Section 304 Part II IPC read with Section 34 I. P. C. and sentenced to 5 years R. I. and a fine of Rs. 10,000/-each. The fine, if realized, shall be ordered to be paid to the immediate heir of the deceased. 18. In view of the above discussion, we partly allow the appeal and convert the conviction of the appellants from Section 302 I. P. C. to Part II of Section 304 I. P. C. read with Section 34 I. P. C. The accused appellants Tulli son of Badri and Munna son of Gokul are sentenced to undergo R. I. for five years and each of them would pay a fine of Rs. 10,000/-for the said offence. The fine is directed to be deposited within six months from today. In default of payment of fine, each of them would undergo further R. I. for one year. The amount of fine, if realized, shall be paid to the immediate heir of the deceased. The two accused appellants Tulli son of Badri and Munna son of Gokul are on bail. In default of payment of fine, each of them would undergo further R. I. for one year. The amount of fine, if realized, shall be paid to the immediate heir of the deceased. The two accused appellants Tulli son of Badri and Munna son of Gokul are on bail. The C. J. M. Fatehpur shall cause them to be arrested and sent to jail to serve out the sentence. 19. The appeal has abated respecting the appellants Kalloo son of Baur and Deshraj son of Debi (now dead ). 20. Certify the judgment to the Court below for reporting compliance within two months. Appeal partly allowed. .