Judgment N.N. Mathur, J.-The appellants Chatter Singh, Om Singh and Khushal Singh all the there sons of Jethu Singh alongwith one Chain Singh have been convicted of offence under Section 302 with the aid of Section 34, IPC and each of them sentenced to imprisonment for life and to pay a fine of Rs. 1,000/ -, in default to further undergo 2 years rigorous imprisonment. They have also been convicted for offence under Section 341, IPC and sentenced to undergo one month simple imprisonment and to pay a fine of Rs. 100/-, in default to further undergo 5 days simple imprisonment. The appellant Om Singh has further been convicted of offence under Section 3/25 of the Indian Arms Act and sentenced to six months rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment to further undergo 7 days simple imprisonment. All the sentences have been ordered to run concurrently. 2. The prosecution case as emerged during the trial is that in village Sadu Badi, there existed hostility between two families i.e., of the deceased Choutha Ram and the appellants father Jethu Singh. The incident alleged to have taken place in the morning of 13.07.2000, while PW. 1 Bhanwar Lal and deceased Choutha Ram were on their way to famine relief work for earning labour. They had hardly travelled a little distance from village abruptly, appellants Chatter Singh, Om Singh, Khushal Singh and Chain Singh armed with lathies, Farsies and gun appeared, surrounded and mounted attack on deceased Choutha Ram. They were shouting that he (Choutha Ram) should be finished and not allowed to go alive. It is further alleged that Chatter Singh gave a lathi blow on the leg of deceased Choutha Ram. Thereafter Khushal Singh gave a farsi blow on the left leg on account of which Choutha Ram fell down. Chain Singh gave a farsi blow on the left hand of deceased Choutha Ram. All the accused persons indiscriminately pounded the legs and arms of the deceased by inflicting injuries by Lathies and Farsies. Appellant On Singh was armed with a gun. He also inflicted injuries from butt side of the gun. Appellant Om Singh remained standing carrying gun in hand threatening, if any body comes near Choutha Ram, he would also be killed. The cries attracted PW. 2 Anda Ram, PW. 3 Shanker Ram and PW. 6 Teja Ram on the spot. Appellant On Singh was armed with a gun. He also inflicted injuries from butt side of the gun. Appellant Om Singh remained standing carrying gun in hand threatening, if any body comes near Choutha Ram, he would also be killed. The cries attracted PW. 2 Anda Ram, PW. 3 Shanker Ram and PW. 6 Teja Ram on the spot. The assailants considering that Choutha Ram has died went away. Choutha Ram was taken to the Police Station in injured condition. Thereafter he was taken to the hospital, where he succumbed to the injuries. On the basis of the said information, police registered a case against the accused appellants for offence under Sections 302, 341 and 34, IPC and proceeded with investigation. The autopsy was conducted by the Board consisting of two doctors namely PW. 9 Dr. Rajendra Gaur and Dr. Sanjay Garg vide Exhibit P-8. The Board noticed following injuries on the person of the deceased Choutha Ram: - (1) Lacerated wound 5 x 1 ½ cm muscle deep, located on upper part of Right leg. Irregular margins. (2) Stabwound 2.5 cm x 1cm x 3.5 cm bone deep on the ant. surface of right leg (middle portion) margins sharp and clear. (3) Lacerated wound 4 cm x 2 cm muscle deep on the ant. surface of middle portion of right leg with rough margin. (4) Stabwound 3 cm x 2 cm x 4 cm with cutting of middle portion of soft of tibia with fracture of the tibia bone, on the anterior surface of middle portion of right leg. This injury is adjacent to the Injury No. 3. Margins are sharp with full of fluid blood. (5) Lacerated wound 4 cm x 2 cm x bond deep with rough margins on the lower third of right leg. (6) Stab wound 3 cm x 1.5 cm x 3.2 cm on the medial surface of middle portion of left leg with sharp and clear margins. Wound is full with blood fluid. (7) Lacerated wound 2 cm x ½ cm x muscle deep on the middle portion of left leg. (8) Fractureand dislocation of left knee joint with broken lower portion of left femur at its lower portion with huge swelling of left knee joint. (9) Lacerated wound 2 cm x 0.5 cm x muscle deep lateral and lower portion of left arm with rough margin. (8) Fractureand dislocation of left knee joint with broken lower portion of left femur at its lower portion with huge swelling of left knee joint. (9) Lacerated wound 2 cm x 0.5 cm x muscle deep lateral and lower portion of left arm with rough margin. (10) Lacerated wound 2 cm x 0.5 cm x muscle deep lateral and lower portion of left arm near to Injury No. 9. (11) Incised wound 1.5 cm x ½ cm x muscle deep on the dorsal surface of left wrist with clear margin. (12) Bruise 10 cm x 2.5 cm on lateral surface of left arm. (13) Bruise 11 cm x 2 cm on the left lower portion of the back obliquely placed. (14) Bruise 7 cm x 3 cm on lateral surface of right arm. The Board noticed three stab wounds on left leg and fracture of the tibia. There were about ten bruises and laceration. All the injuries were ante mortem in nature. In the opinion of the Board the deceased died due to shock and hemorrhage on account of multiple injuries. 3. The accused persons were arrested; recoveries of weapon of offence were made in pursuance of the information given by them. After usual investigation, police laid charge-sheet against the appellants for offence under Sections 302, 302/34 and 341 IPC. The appellants pleaded not guilty and claimed trial. The prosecution adduced oral and documentary evidence to prove its case. In statement under Section 313 of the Code of Criminal Procedure, the appellants denied the correctness of the prosecution evidence appearing against them. The appellant Chatter Singh stated that a quarrel had taken place between Choutha Ram and Bhanwar Lal as to the Muster Roll of the famine relief work. In the scuffle Bhanwar Lal inflicted injuries to Choutha Ram, which resulted into his death. They have been falsely implicated on account of enmity. The trial Court found the prosecution case proved and as such convicted and sentenced the appellants in the manner indicated above. 4. Assailing the conviction, it is submitted by Mr. Doongar Singh learned Counsel for the appellants that the trial Court has failed to consider that prosecution has not given the true version and genesis of the incident and the evidence of the so called eye-witnesses is false and fabricated. 4. Assailing the conviction, it is submitted by Mr. Doongar Singh learned Counsel for the appellants that the trial Court has failed to consider that prosecution has not given the true version and genesis of the incident and the evidence of the so called eye-witnesses is false and fabricated. In fact there was no motive on part of the accused appellant to cause death of Choutha Ram. In alternate, it is submitted that the nature of the injuries clearly shows that the injuries were caused on non-vital parts of the body by each of the appellants. The nature of the injuries clearly shows that if the offence is proved, it does not travel beyond offence under Section 304 Part II, IPC. It is further submitted that the appellant Om Singh has been falsely implicated. It is alleged that he was armed with the gun but he did not use the same. This clearly shows that he was not a party to the incident. The learned Counsel has placed reliance on the decisions of the Apex Court in Raja Ram & Ors. vs. State of M.P., reported in 1994 (2) SCC 568 , Mulkuri Damodara Reddy & Ors. vs. State of Andhra Pradesh, reported in 1987 SCC (Cri.) 170 and Dalip Singh & Ors. vs. State of Haryana, reported in 1993 SCC (Cri.) 1005. On the other hand the learned Public Prosecutor has supported the Judgment of the trial Court. Mr. G.R. Punia, learned Counsel appearing for the complainant submitted that PW. 1 Bhanwar Lal, PW. 3 Shanker Ram and PW. 6 Teja Ram has given the true account of the occurrence supported by the medical evidence of PW. 9 Dr. Rajendra Gaur and other circumstances. With regard to the nature of offence it is submitted that simply because the injuries are on the non-vital parts of the body, it cannot be said that the appellants did not intent to commit the murder of Choutha Ram. It is further submitted that all the accused persons indiscriminately inflicted injuries on the legs and arms of the deceased. They gave a merciless beating to a human being as if he was a buffalo Thus, according to Mr. Punia learned Counsel the trial Court has rightly convicted the appellants of offence under Section 302, IPC. It is further submitted that all the accused persons indiscriminately inflicted injuries on the legs and arms of the deceased. They gave a merciless beating to a human being as if he was a buffalo Thus, according to Mr. Punia learned Counsel the trial Court has rightly convicted the appellants of offence under Section 302, IPC. The learned Counsel has placed reliance on the decisions of the Apex Court in State of Andhra Pradesh vs. Rayavarapu Punnayya & Anr., reported in AIR 1977 SC 45 , Anda & Ors. vs. The State of Raj., reported in AIR 1966 SC 148 and Brij Bhukhan & Ors. vs. The State of Uttar Pradesh, reported in AIR 1957 SC 474 . 5. We have carefully scrutinized and evaluated the prosecution evidence and considered the rival contentions. The prosecution with a view to bring home the guilt of the appellants examined the witnesses of occurrence namely PW. 1 Bhanwar Lal, PW. 2 Anda Ram, PW. 3 Shanker Ram and PW. 6 Teja Ram. The prosecution has also led evidence of recovery of the weapon of offence. We proceed to deal with the ocular evidence of the occurrence at the first instance. 6. PW. 1, Bhanwar Lal stated that on the date of occurrence at about 8:00 A.M., he alongwith his deceased uncle Choutha Ram was on way to the famine relief work. When they reached near the Dhani of Moola Ram the appellants Chatter Singh, Khushal Singh, Om Singh and Chain Singh armed with lathies and farsies appeared and surrounded Choutha Ram. Chatter Singh was armed with lathi with Shela on its front edge, Khushal Singh and Chain Singh with farsies and Om Singh with gun. Appellant Chatter Singh gave a lathi blow on the left leg of Choutha Ram. Thereafter all the appellants mounted assault on Choutha Ram and gave merciless beating on account of which he became unconscious. He did not go near his uncle Choutha Ram out of fear as they had threatened that if he comes near he will be killed by gun. The cries attracted Shanker Ram, Teja Ram and Anda Ram. The appellants leaving the injured went away. He returned to the village leaving Choutha Ram on the spot and gave an information of the incident to his father. Thereafter the injured was taken to the hospital in the jeep of PW. The cries attracted Shanker Ram, Teja Ram and Anda Ram. The appellants leaving the injured went away. He returned to the village leaving Choutha Ram on the spot and gave an information of the incident to his father. Thereafter the injured was taken to the hospital in the jeep of PW. 5 Raju Singh, Choutha Ram was taken to the Police Station, Sandwa. As his condition was deteriorating he was taken to the hospital. In the hospital he gave a written report Exhibit P-1 to the Police at the hospital. He also stated that on earlier occasion Chatter Singh assaulted his brother Girdhari Lal for which he was prosecuted. During the trial deceased Choutha Ram appeared as a witness against Chatter Singh. The appellants killed Choutha Ram because of the hostility. In the cross-examination he stated that he left behind Choutha Ram to urinate. He witnessed the incident while urinating. He did not intervene out of fear as the assailants were armed with deadly weapons and one of them threatened to face dire consequence if he comes nearby him. Nothing has been brought out in the cross-examination to discredit the testimony of this witness. 7. PW. 2 Anda Ram did not support the prosecution case inasmuch as he refused to identify the appellants as assailants. Thus, he was declared hostile. PW. 3 Shanker Ram identified all the accused person. At the time of incident he was on way to the famine relief work. When he reached near the field of Moola Ram, he was attracted by the cries of deceased Choutha Ram. He witnessed the incident of giving assault by the accused appellants to deceased Choutha Ram. He also stated that Chatter Singh was armed with a Dang (lathi) with Shela, Om Singh with gun, Chain Singh and Khushal Singh with farsies. Chatter Singh gave a blow on the left leg on the deceased on account of which he fell down. Thereafter all the accused persons gave merciless beating to the deceased. He did not come nearby to save Choutha Ram as Om Singh who was carrying a gun in his hand had threatened of dire consequences. He also verified the presence of PW. 1 Bhanwar Lal. Nothing substantial has been pointed out to discredit the testimony of the witness. 8. Another witness of the occurrence is PW. 6 Teja Ram. He did not come nearby to save Choutha Ram as Om Singh who was carrying a gun in his hand had threatened of dire consequences. He also verified the presence of PW. 1 Bhanwar Lal. Nothing substantial has been pointed out to discredit the testimony of the witness. 8. Another witness of the occurrence is PW. 6 Teja Ram. He stated that on the date of incident at 8:00 in the morning he alongwith Anda Ram, Shanker Ram were on way to famine relief work. When they reached near the field of Moola Ram, they witnessed Chain Singh, Chatter Singh, Om Singh and Khushal Singh assaulting Choutha Ram. Chatter Singh was giving assault by lathi with farsi. Chain Singh and Khushal Singh by farsies and Om Singh by gun. Choutha Ram became unconscious. Bhanwar Lal went to the village to give information of the incident asking them to stay back and take care of injured Choutha Ram. After some time Bhanwar Lal returned with Khinva Ram and a Jonga Jeep driven by PW. 5 Raju Singh. Choutha Ram was taken to village Sandwa in the Jonga Jeep. In the cross-examination he admitted that Om Singh did not fire the gun. He also admitted that he had appeared as a witness against Chatter Singh in a trial. However, he denied the suggestion that he has been giving false evidence against Chatter Singh in all cases. The testimony of this witness cannot be discarded only for the reason that on earlier occasion he had deposed against Chatter Singh in a different case. Thus, nothing substantial has been elicited to discredit the testimony of this witness. 9. PW. 4, Kninva Ram is the younger brother of deceased Choutha Ram and father of PW. 1 Bhanwar Lal. He stated that he was informed by his son Bhanwar Lal to the effect that uncle Choutha Ram has been killed by Chatter Singh, Om Singh, Khushal Singh and Chain Singh. He reached on the spot in a Jeep belonging to Raju Singh. He found that Choutha Ram was lying injured in the field of Moola Ram. He had sustained number of injuries on the legs. 10. PW. 5, Raju Singh is the driver of the Jonga Jeep. He stated that he owned a Jeep bearing No. 2186. Girdhari Ram had approached to him for taking his Jeep. He found that Choutha Ram was lying injured in the field of Moola Ram. He had sustained number of injuries on the legs. 10. PW. 5, Raju Singh is the driver of the Jonga Jeep. He stated that he owned a Jeep bearing No. 2186. Girdhari Ram had approached to him for taking his Jeep. The Jeep was boarded by Khinva Ram and the brother of the deceased Choutha Ram. He drove the Jeep to the field of Moola Ram, where he found Choutha Ram lying unconscious. Choutha Ram was taken to the village Sandwa in his Jeep. Thereafter he was taken to the hospital. He left the hospital leaving injured Choutha Ram. He pleaded ignorance as the death of Choutha Ram. In the cross-examination he admitted that he did not see Shanker Ram, Anda Ram and Teja Ram at the place of incident. On re-examination the Public Prosecutor made a request to declare the said witness as hostile. After the statement of this witness was recorded he filed an affidavit for recalling his statement. The trial Court observed that the statement of PW. 5 Raju Singh was relevant only to the extent that he reached at the place of incident in a Jonga Jeep and took the injured to the hospital. 11. PW. 13, Jugal Kishore is the Constable posted at Police Station, Sandwa at the relevant time. He stated that he accompanied the Incharge of the Police Station Tara Chand to the hospital at Sandwa. He passed on him a written First Information Report Exhibit P-1, which he carried at the Police Station. PW. 7 Tulsa Ram is a formal witness of some of the police memos so as the PW. 8, Ladu Ram. 12. PW. 14 Tara Chand is the Investigating Officer. He has given the details of the investigation. Appellant Chain Singh was arrested vide Exhibit P-20 and in pursuance of the information given by him vide Exhibit P-21 a Barchi was recovered vide Exhibit P-9. Appellant Chatter Singh was arrested vide Exhibit P-18 and in pursuance of the information given by him vide Exhibit P-19 a lathi with Shela was recovered vide Exhibit P-10. Similarly appellant Om Singh was arrested vide Exhibit P-22 and in pursuance of the information given by him vide Exhibit P-23 a gun was recovered vide Exhibit P-11. Appellant Chatter Singh was arrested vide Exhibit P-18 and in pursuance of the information given by him vide Exhibit P-19 a lathi with Shela was recovered vide Exhibit P-10. Similarly appellant Om Singh was arrested vide Exhibit P-22 and in pursuance of the information given by him vide Exhibit P-23 a gun was recovered vide Exhibit P-11. Similarly appellant Khushal Singh was arrested vide Exhibit P-15 and in pursuance of the information given by him vide Exhibit P-16 a Barchi was recovered vide Exhibit P-13. Out of all the weapons recovered as per the FSL report Exhibit P-26 a lathi with Shela recovered from appellant Chatter Singh was found stained with human blood. It is not necessary to discuss the link evidence, as the same has not been challenged. 13 Thus, the evidence of eye-witness PW . 1 Bhanwar Lal, PW . 3 Shanker Ram and PW . 6 Teja Ram is consistent and nothing has been brought out from which any doubt can be cast on their creditability. They have stood to the test of cross-examination as well. The statements of the witnesses find corroboration from the medical evidence and other incriminating circumstances referred to above. Thus, our scrutining of the evidence reveals that prosecution has successfully established the guilt against appellants Chatter Singh, Khushal Singh and Chain Singh beyond reasonable doubt. However, as regards Om Singh from the statements of the eye-witnesses it appears that he did not participate in the incident. It is of -course stated by the witnesses that Om Singh made assault from the butt side of the gun, but it is difficult to conceive that a person armed with a gun, instead of using gun as fire arm will use as lathi. Thus, it appears that the eye-witnesses have exaggerated their version to the extent of assigning role to appellant Om Singh. He cannot be held guilty of offence of murder or any other offence simply because of his presence on the spot. Thus, we hold that the prosecution has failed to establish guilt beyond reasonable doubt against appellant Om Singh. He deserves to be acquitted of the charges levelled against him. 14. As to the nature of offence, we have considered the rival contentions advanced and case laws cited by the learned Counsel for the parties. In State of Andhra Pradesh vs. Rayavarapu Punnayya & Anr. He deserves to be acquitted of the charges levelled against him. 14. As to the nature of offence, we have considered the rival contentions advanced and case laws cited by the learned Counsel for the parties. In State of Andhra Pradesh vs. Rayavarapu Punnayya & Anr. (Supra), the Supreme Court rejected the contention that simply because the injuries on non-vital parts of the body, an inference that the appellants intended to commit the murder cannot be drawn. The Court relying on Rajawant Singh vs. State of Kerala, AIR 1966 SC 1874 held that for cases to fall in Clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. In Brij Bhukhan vs. State of U.P. (Supra), the Court held that though the medical evidence does not say that any one of the injury on the body of the deceased was sufficient to cause death in the ordinary course of nature. It is open to the Court to look into the nature of the injuries found on the body of the deceased and infer from them that the assailants intended to cause death of deceased. 15. In Raja Ram vs. State of M.P. (Supra), eight accused persons were tried on the charge of Section 302 read with Section 149 IPC for causing multiple injuries to the deceased resulting into his death. On appreciation of evidence, the Court found that the case of the appellants did not fall within the ambit of any of the four clauses of the definition of murder contained under Section 300, IPC. However, in causing injuries as noticed in the postmortem report, the appellants could be attributed the knowledge to the extent that the injuries were likely to cause death though without any intention. The Court held that the appellants were liable to be convicted for offence under Section 304 Part II read with Section 149, IPC and not under Section 302, IPC. 16. In Dalip Singh & Ors. vs. State of Haryana (Supra), in almost identical circumstances the Court held that the offence did not travel beyond offence under Section 304 Part II, IPC. The same view has been taken by the Apex Court in Mulkuri Damodara Reddy & Ors. vs. State of Andhra Pradesh (Supra). 17. 16. In Dalip Singh & Ors. vs. State of Haryana (Supra), in almost identical circumstances the Court held that the offence did not travel beyond offence under Section 304 Part II, IPC. The same view has been taken by the Apex Court in Mulkuri Damodara Reddy & Ors. vs. State of Andhra Pradesh (Supra). 17. Having given our anxious consideration to the rival contentions, we are of the view that the contention of the appellants as far as the nature of offence is concerned deserves to be accepted. It is true that in the instant case deceased sustained as many as 14 injuries but all the injuries are on non-vital parts of the body. In the case of State of Andhra Pradesh vs. R. Punnayya (Supra), on which the learned Counsel for the complainant has heavily placed reliance irrespective to the fact that injuries were on the non-vital part of the body it was not considered to be case of culpable homicide not amounting to murder by the Apex Court. In the said case the Court found that the assailants had selected heavy sticks of about 3 inches in diameter, each and with lethal weapons, despite the entreaties of the deceased, mercilessly pounded his legs and arms causing no less than 19 or 20 injuries, smashing at least seven bones, mostly major bones and dislocating two more. The Court observed that the beating was administered in a brutal and reckless manner. The Court further observed, thus, “It was pressed home with an unusually fierce, cruel and sadistic determination. When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating a human being as if he were a buffalo, the only echo it could draw from the assailants, was a minacious retort, who callously continued their malevolent action, and did not stop the beating till the deceased became unconscious. May be, the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead. But this lone circumstance cannot take this possible inference to the plane of positive proof . May be, the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead. But this lone circumstance cannot take this possible inference to the plane of positive proof . Nevertheless, the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders-all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus, the presence of the first element of clause. Thirdly of Section 300 had been cogently and convincingly established. Thus, apparently the said case has no application to the facts of the instant case. The another case i.e., Dalip Singh (Supra), is more close to the facts of the instant case. In Dalip Singhs case, on the body of the deceased in all 15 injuries were found. On internal examination the doctor found that the third and ninth ribs were fractured and haematoma was present in the urethra and liver also found to be injured with a laceration. The doctor opined that the deceased died due to shock and haemorrhage on account of injuries on the vital organs namely spleen, liver and testes. Analyzing the evidence on record the Court found that all the four accused shared common intention to beat the deceased violently and they must have knowledge that by inflicting such injuries, they were likely to cause death of the deceased. The High Court convicted the appellants of offence under Section 304, Part I, IPC. The Apex Court converted to conviction under Section 304 Part II, IPC. In the instant case the deceased sustained in all 14 injuries on non-vital parts of the body. The Board noticed three stab wound on left leg and fracture of the tibia. In the opinion of the Medical Board the cause of death was multiple injuries. Taking over all view of the circumstances in which the incident had taken place, it appears that the appellant shared the common intention to beat the deceased violently or to cripple him. The Board noticed three stab wound on left leg and fracture of the tibia. In the opinion of the Medical Board the cause of death was multiple injuries. Taking over all view of the circumstances in which the incident had taken place, it appears that the appellant shared the common intention to beat the deceased violently or to cripple him. The appellants can be attributed the knowledge that by their acts, they will like to cause death of the deceased, though without any intention to cause his death or to cause such bodily injuries as is likely to cause his death. Thus, the offence in such case would, therefore, be only culpable homicide not amounting to murder as per third clause of Section 299, IPC punishable under Section 304 Part II/34, IPC. We, therefore, set aside the conviction of the appellants Chatter Singh, Khushal Singh and Chain Singh of offence under Section 302/34, IPC and instead convict them for offence under Section 304 Part II read with Section 34, IPC. 18. Consequently, the appeal is partly allowed as follows:- .(A) The conviction of the appellant Om Singh for offence under Sections 302/34, 341, IPC and under the Arms Act is set aside. He is acquitted of all the charges levelled against him. He is on bail. His bail bonds stand discharged. .(B) Theconviction of the appellants Chatter Singh, Khushal Singh and Chain Singh is altered from Section 302/34, IPC to Section 304 Part II/34 IPC. The appellants Chatter Singh, Khushal Singh and Chain Singh are sentenced to rigorous imprisonment of seven years. The fine shall remain intact. The conviction of appellants Chatter Singh, Khushal Singh and Chain Singh under Section 341, IPC is maintained.