R.C. CHAVAN, J. :. The appellants, who have been convicted by the learned Sessions Judge, Wardha, for offences punishable under Sections 302 and 325 read with Section 34 of the Penal Code have preferred this appeal taking exception to their convictions and resultant sentences imposed upon them. 2. Facts, which led to the prosecution of the appellants, are as under: 3. Father of appellant No.1 was suffering from some disease. It was believed by the family of appellant No.1 that Ballu Dabhade and his wife Radhabai had played black magic. Father of appellant No.1 died on 19-05-1994. Appellant No.1 Dashrath, his brother Shrikrishna, who was originally arrayed as accused No.2, and appellant No.2 Dadarao hit Ballu Dabhade and his wife Radhabai with stones and sticks. Police came on being informed and took the victims to hospital. In the hospital, Ballu Dabhade and his wife Radhabai both made statements, which were duly recorded by the police. Ballu Dabhade succumbed to his injuries. An offence was registered and investigation commenced. 4. In the course of investigation, police examined witnesses, caused panchanama of the spot to be performed, sent the dead body of Ballu for post mortem examination after conducting an inquest and on completion of investigation, sent the charge-sheet before the learned Judicial Magistrate First Class, Arvi, who committed the case to the Court of Sessions at Wardha. 5. The learned Sessions Judge charged the three accused, who were sent up for trial, of offences punishable under Sections 302 and 307 read with Section 34 Of the Penal Code. All the three accused pleaded not guilty and hence were put on trial. The prosecution examined in all 13 witnesses in its attempts to bring home the guilt of the accused. Upon consideration of the prosecution evidence in the light of defence raised, the learned Sessions Judge acquitted No.2 Shrikrishna. He convicted the two appellants (arrayed as accused No.1 and 3) of offences punishable under Sections 302 and 325 read with Section 34 of the Penal Code and sentenced them on the two counts to suffer imprisonment for life and R.I. for three years and to pay a fine of Rs.5001- or in default, to undergo further SI for six months respectively. Aggrieved thereby, the convicts have appealed. 6. Aggrieved thereby, the convicts have appealed. 6. We have heard Shri. M. R. Daga, the learned counsel for the appellants, and Shri. A.D. Sonak, the learned Additional Public Prosecutor for the State. With the able assistance provided by both the learned counsel, we have re-appraised the entire evidence to examine the correctness of the conditions drawn by the learned Session Judge. In this case, apart from Radhabai, widow of victim Ballu, the injured eye-witness, there are thee other eyewitnesses, viz., P.W.3 Lata, P.WA Parvati and P.W.5 Savitribai, to support the prosecution case. All the four witnesses stated about the assault by appellants Dashrath and Dadarao on Ballu as well as Radhabai. Since they did not state about the involvement of original accused No.2 Shrikrishna, he was acquitted by the Trial Court. 7. The learned counsel for the appellants submitted that the prosecution has not explained the genesis of the incident. This does not seem to be so. P.W.2 Raqhabai had stated that Gulab Kaikade, father of appellant No.1, was suffering from paralysis and was taken to various doctors. She states that "they" (that is members of the family of Gulab) were suspecting that Radhabai and her husband, an issueless couple, were playing black magic on Gulab. P.W.1 Marotrao had stated in his cross-examination that on 19-05-1994 itself, that is the date of incident, the father of accused No.2 (and also of accused No.1) dies. He stated that the accused and Ballu Dabhade were not having cordial relations. He had heard the accused giving threats to Ballu Dabhade. Obviously, this is the genesis of the incident. The belief of the family of appellants that Ballu Dabhade and his wife were playing black magic and the death of appellant No.1's father, were the causes of sudden fury of the appellants. 8. The learned counsel for the appellants next submitted that P.W.3 Lata, an eye-witness, admitted having not stated to the police that Dashrath walii saying that Ballu Dabhade had played black magic on Dashrath's father, though she had stated so in her examination-in-chief. She claimed to have stated that accused No.1 Dashrath gave a stick blow to Ballu Dabhade and pelted stones on his person, but could not assign any reason as to why the police did not so record. She claimed to have stated that accused No.1 Dashrath gave a stick blow to Ballu Dabhade and pelted stones on his person, but could not assign any reason as to why the police did not so record. P.W.l3, Investigating Officer PSI Katekhaye, proved this and the other omissions in Lata's statement about accused saying that they would pass urine in the mouth of Ballu and his wife. Therefore, it could be said that Lata's evidence suffers from some infirmity because of this omission. 9. However, Lata is not the only witness to have seen the assault. P.W.S Savitribai also stated that accused No.1 Dashrath and accused No.2 Dadarao were beating Ballu Dabhade and Radhabai. She claimed to have stated before the police that accused No.1 Dashrath assaulted Ballu Dabhade by means of a stick~ This alleged omissions was, however, not put up to P.W.13 PSI Katekhaye. 10. Apart from this eye-witness account, there is a dying declaration of Ballu himself recorded by P.W.13 PSI Katekhaye in presence of P.W.6 Dr. Sujata Agrawal. This dying declaration at Exhibit-47, which bears the endorsement of Dr. Agrawal, shows that Ballu had stated that Dadarao, Shrikrishna and Dashrath had beaten him on the belief that he had played black magic, as a result of which the person from their family had pied. He had also stated that these persons hap assaulted his wife Radhabai. Similar is the statement of Radhabai at Exhibit 48. 11. Dr. Agrawal was cross-examined at length in respect of the statement recorded by the police. She admitted that she had not signed the endorsement made on the statement, though the endorsement was in her hand. She could not recollect whether she had examined Ballu Dabhade before examining Radhabai or afterwards. She stated that it was her first occasions of examining a patient whose dying declaration was to be recorded by the police in her presence. 12. There is no reason why Ballu Dabhade or his wife Radhabai would falsely name the appellants as the assailants, if the assailants were some other persons. It is not shown that Ballu or Radhabai had any enmity with the appellants. It is also not shown that P.W.13 PSI Katekhaye had any axe to grind against the appellants in order to falsely implicate them. 13. It is not shown that Ballu or Radhabai had any enmity with the appellants. It is also not shown that P.W.13 PSI Katekhaye had any axe to grind against the appellants in order to falsely implicate them. 13. In fact, from the evidence of P.W.13 PSI Katekhaye, it seems that he had visited the spot immediately after the incident and found both Ballu and Radhabai lying injured on the ground and asking for water. He caused them to be shifted to hospital in a rickshaw and then recorded their statements in presence of Medical Officer and panchas. These panchas had, however, not supported the prosecution. He had also sent a requisition to the Tahsildar for recording the dying declaration and the copy of requisition is at Exhibit 61. Thus, it is not that P.W.13 PSI Katekhaye had not taken necessary steps to have the victims statements recorded by an independent authority. 14. In view of this, the evidence of' eye-witnesses, who have no animus against the accused and who are not related to the victims, the dying declaration of Ballu himself and the evidence of injured Radhabai, which does not contradict her previous statement, would indicate that the two appellants were rightly held guilty of assault on Ballu and his wife Radhabai. 15. Apart from P.W.6 Dr. Sujata Agrawal, who treated the victims immediately after the incident. P.W.7 Dr. Hiwalekar was examined to prove the x-ray plates of Radhabai and the report in respect of the radiological examination. He proved his certificate at Exhibits 50 and 51. He is an Orthopaedic Surgeon, who stated that Radhabai had compound communited fracture of both bones of right leg and compound communited fracture of upper 1/3rd of left leg. He states that the injuries were not sufficient in the ordinary course of nature to cause her death. They were caused by hard and blunt objects. like Articles No.7 and 8 - sticks before the Court. He ruled out the possibility of such injuries being caused by fall. 16. The prosecution examined Dr. Lavale, who conducted post mortem examination on the body of Ballu, as P.W.8. He proved the notes of post mortem examination. He found as many as 12 lacerations and contusions on the body of Ballu. On dissection, he found that there was huge extra dural haematoma on the left side of the brain. 16. The prosecution examined Dr. Lavale, who conducted post mortem examination on the body of Ballu, as P.W.8. He proved the notes of post mortem examination. He found as many as 12 lacerations and contusions on the body of Ballu. On dissection, he found that there was huge extra dural haematoma on the left side of the brain. He also found that there were multiple fractures of four ribs on the right side and two ribs on the left side with evidence of haemothorax on both sides of chest. The right lung had completely collapsed and One lobe of left lung was lacerated. The spleen had ruptured into multiple pieces. He had found that four out of the several injuries observed by him were sufficient to cause the death, either individually or collectively. He proved the notes of post mortem examination and certificate about the possibility of injuries being caused by the weapons shown to him, at Exhibits 53 and 54. This medical evidence would leave no doubt that the appellants had launched a murderous attack on the deceased Ballu. Therefore, we find that the learned Sessions Judge had rightly held both the appellants guilty of having inflicted such injuries on Ballu, resulting in his death. The location of injuries would clearly indicate that they were inflicted with intention to cause death of Ballu. Therefore, there is no force in the contrary contentions strenuously raised by the learned counsel for the appellants. The conviction of the appellants for offence punishable under Section 302 read with Section 34 of the Penal Code and the resultant sentences must be upheld. 17. As regards the conviction of the appellants on account of injuries caused by them to P.W.2 Radhabai, the victim's widow, Shri. Sonak the learned Additional Public Prosecutor, pointed out that the injuries had been caused by a stick, which is a weapon of offence. Therefore, we are of the opinion that the learned Sessions Judge ought to have convicted the appellants of the offence punishable under Section 326 rather than under Section 325 of the Penal Code. Therefore, we would alter the conviction from one under Section 325 to that under Section 326 of the Penal Code, since such alteration does not prejudice the accused, who had been charged of a more serious offence punishable under Section 307 of the Penal Code. Therefore, we would alter the conviction from one under Section 325 to that under Section 326 of the Penal Code, since such alteration does not prejudice the accused, who had been charged of a more serious offence punishable under Section 307 of the Penal Code. The sentence inflicted on the appellants on this count, however, would remain the same. 18. In this view of the matter, we dismiss the appeal and maintain the conviction of appellants Dashrath s/o Gulab Kaikade and Dadarao s/o Baopurao Gomase for offence punishable under Section 302 read with Section 34 of the Penal Code and the sentence of imprisonment for life imposed upon them by the learned Sessions Judge on this count. The conviction of the appellants for offence punishable under Section 325 read with Section 34 of the Penal Code is however, altered to one under Section 326 read with Section 34 of the Penal Code. The sentence of rigorous imprisonment, for three years and fine of Rs.500/- each, and in default, to suffer simple imprisonment for six months, remains the same. The substantive sentences imposed by the learned Sessions Judge shall run concurrently, as already directed by the learned Sessions Judge. The appellants are directed to surrender before the Court of Sessions by 10th November, 2005; failing which the Trial Court shall take steps to have the appellants arrested and committed to prison to serve the sentence.