JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 16.8.1999 passed by learned Additional Sessions Judge Ashok Nagar, District Guna in Sessions Trial No.205/98 convicting appellants Shibbu, Navala and Munna for the offences punishable under sections 147, 148 and 302 of IPC and further convicting appellants Pappu and Narayan for the offences punishable under section 147 and 302 read with section 149 of IPC and thereby sentencing one year RI and fine Rs.500/-, in default, further RI of three months to each appellants for the offence under section 147 IPC; sentencing one year RI and fine Rs.500/-, in default, three months RI for the offence under section 148 IPC to appellants Navala, Munna and Shibbu; sentencing life imprisonment and fine Rs.1,000/-, in default, six months RI for the offence under section 302 of IPC to appellants Shibhu, Munna and Navala and further sentencing life imprisonment and fine Rs.1,000/-, in default, six months RI for the offence punishable under section 302/149 IPC to appellants Pappu and Narayan, the appellants have preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that on 2.6.1998 Udhamsingh (hereinafter referred as the deceased) was going from his house to his shop at 5:00 p.m. In his shop, his daughter Ramdulari Bai was carrying on some repair work and in order to supervise that work the deceased was going to his shop. It is said that near by the house of one Chunni Khan, appellants stopped the deceased and asked that his wife has lodged a false report but on the basis of said report no loss has occurred to them and thereafter all the accused persons started saying that the hands and legs of the deceased be chopped. The accused persons who were carrying the axe in their hands started giving its blow to the deceased. The accused persons who were carrying the axe in their hands started giving its blow to the deceased. It is said that Navala dealt axe blow on the right hand below the arm pit as a result of which the said hand of the deceased was cut, Manna dealt one axe blow on the left hand, appellant Shibbu caused axe blow on the right leg below knee, as a result of which the deceased screamed and fell down on the ground and when his wife tried to come to rescue him, it is said that appellant Pappu dealt axe blow on the wife of the deceased, appellant Narayan dealt axe blow from the blunt side which landed on the forehead of Ramswarupi Bai and he also dealt a fist on her nose. The incident was witnessed by several persons of that locality. On account of giving blows by sharp edged weapon, both the hands and right leg of the deceased have been brutally cut. 3. On the basis of report, lodged by the deceased in Police Station Esagarh on 2.6.1998 at 18:30 hours, a case under section 147, 148, 326 read with section 149 IPC was registered. 4. The investigating agency after registering the case, arrived at the spot; prepared the spot map; recorded the statement of the witnesses; arrested the accused persons; seized axes which were used as weapons in the commission of the offence; seized the blood stained articles and· sent for serological examination; the injured persons were sent to the hospital for their treatment. On account of the death of the deceased on 24.6.1998, the case was altered from section 326 to 302 IPC. 5. After the investigation was over, a charge-sheet was submitted in the committal Court which on its turn committed the case to the Court of Session and from where it was received by the trial Court for trial. 6. The learned trial Judge on the basis of the allegations made against the appellants framed charges punishable under section 147, 148, 302, 302/149 of IPC which they denied and requested for the trial. 7. In order to prove the charge, the prosecution examined as many as 12 witnesses and placed Ex.P-1 to Ex.P-22 the documents on record. 8. 6. The learned trial Judge on the basis of the allegations made against the appellants framed charges punishable under section 147, 148, 302, 302/149 of IPC which they denied and requested for the trial. 7. In order to prove the charge, the prosecution examined as many as 12 witnesses and placed Ex.P-1 to Ex.P-22 the documents on record. 8. The defence of the appellants is of false implication and in support of their defence they examined their witnesses namely Omkar Singh (DW1), Lakhan Singh (DW2) and Tika Ram (DW3). 9. The learned trial Court after appreciating the evidence placed on record came to hold that the appellants, namely Sibbu, Navala and Munna have committed the offences punishable under sections 147, 148 and 302 IPC and appellants Pappu and Narayan have committed the offence punishable under section 147 and 302 read with section 149 IPC and eventually; passed the sentences which we have already mentioned herein above. 10. In this manner, the present appeal has been filed by the appellants against their judgment of conviction and order of sentence before this Court. 11. The contention of Shri Pateria learned counsel for the appellant is that the prosecution witnesses ,are not reliable and the learned trial Court has convicted the appellants by overlooking the material contradiction, omission as well as improvement which goes to the root of the matter and therefore, appellants be acquitted from all the charges by setting aside the impugned judgment. 12. An alternative submission has also been put forth by learned counsel that in case this Court comes to the conclusion that the appellants have dealt the blows by axes which they were carrying, since the deceased had died after 22 days of the incident on account of septicemia, the case would rest beyond the scope of section 326 IPC. In support of his contentions learned counsel has placed reliance on the decision of the Supreme Court B.N. Kavatkar and another v. State of Karnataka [1994 Supp.(1) SCC 304]. 13. In support of his contentions learned counsel has placed reliance on the decision of the Supreme Court B.N. Kavatkar and another v. State of Karnataka [1994 Supp.(1) SCC 304]. 13. On the other hand Shri Mukund Bharadwaj, learned public prosecutor has argued in· support of the impugned judgment and has submitted that looking to the brutal injuries caused by appellants on the person of the deceased, the learned trial Court did not commit any error in holding that they are guilty of the offences punishable under sections 147, 148, 302, 302/149 IPC and therefore it has been prayed that this appeal be dismissed. 14. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed in part. 15. In the present case, the prosecution has examined Ramsakhi Bai (PW1), Ramdulari (PW2) and Mushtak alias Munna (PW3) as eyewitnesses. Out of these three eye-witnesses Mushtak alias Munna (PW3) has not supported the case of the prosecution so far as his status being an eye-witness is concerned and he was declared hostile. However, from his statement this much is gathered that deceased was lying in front of the house of this witness and was screaming on account of injuries he suffered. Further he has stated that he noticed that both the hands of the deceased were chopped and blood was oozing from the wounds and the wife of the deceased was also standing there. 16. On going through the statement of Ramsakhi Bai (PW1), it is gathered that her husband was going to his shop where some repair work was being carried out and on the way he was stopped by the appellants. This witness on hearing hue and cry came out from her house at that juncture, her daughter also arrived there by saying in weeping condition that her father is being beaten by the appellants. The deceased was brought in a cart to the police station. According to this witness, after 20 days the deceased died and during this period through out, he was writhing. She has also stated that appellant Navala was having enmity with them. 17. The other eye-witness Ramdulari (PW2) is the daughter of the deceased, she has also stated that all the accused persons by causing injuries chopped the hands and legs of the deceased. She has also stated that appellant Navala was having enmity with them. 17. The other eye-witness Ramdulari (PW2) is the daughter of the deceased, she has also stated that all the accused persons by causing injuries chopped the hands and legs of the deceased. She has specifically stated that after closing the shop when she was coming to the house she saw all the accused persons after causing injuries were running away from the place of occurrence. Both these witnesses were cross-examined at length but despite their being a roving cross-examination over them, they remained embedded in their version. From the statement of these witnesses, the only inference which can be inferred is that the appellants Navala, Shibbu and Munna caused injuries to the deceased by sharp edged weapon like axes and other two appellants were with them and were sharing common object to cause injuries to the deceased. 18. The evidence of these eye-witnesses have been supported by medical evidence. The deceased was examined by Dr. B.S. Jamboriya (PW5) who has proved his MLC report (Ex.P-6) in which he found following injuries : (i) Cut wound half circumference right arm at middle part posteriorly bone deep. (ii) Incised wound (cut wound) half circumference left arm at lower end bone deep. (iii) Incised wound 10x2xbone deep right leg below the knee posteriorly. According to the MLC doctor, all the injuries were caused by sharp cutting, object and grievous in nature. Looking to the serious condition of the deceased, he was referred to the District Hospital, Guna. 19. The deceased ultimately died on 23.6.1998 and on his death his dead body was subjected to post-mortem and his post-mortem report is Ex.P-20. The autopsy surgeon Dr. Ramveer Singh (PW12) found following injuries on the person of the deceased: (i) Plaster covering over right lower limb which was removed. After removal stitched wound 3 cm x 1 cm x 1 size near right lateral part of leg. Right tibia and fibula fractured is seen at upper 1/3 and lower 2/3. (ii) Plaster covering over right upper limb present. After removal stitched wound 6 cm x 1 cm x 1 cm size over right upper arm, humerus fractured both ends lying separated pus coming out. (iii) Plaster over left upper limb is found. Right tibia and fibula fractured is seen at upper 1/3 and lower 2/3. (ii) Plaster covering over right upper limb present. After removal stitched wound 6 cm x 1 cm x 1 cm size over right upper arm, humerus fractured both ends lying separated pus coming out. (iii) Plaster over left upper limb is found. After removal stitched wound 3 cm x 1 cm x 1 cm size with # in humerus both ends lying separately pus coming out. According to the doctor, the deceased had died due to cardiac respiratory failure as a result of septicemia and shock. Thus, the cause of death is not due to injuries caused by the accused persons but on account of septicemia. 20. At this juncture, we think it apposite to mention here that autopsy surgeon Dr. Ramveer Singh (PW12) did not find any head injury on the person of the deceased. The case of prosecution is also not that the appellants caused injuries on any of the vital organ of the deceased, on the contrary, its case is that appellants caused injuries on the hands and leg of the deceased and therefore according to us section 302 of IPC has no applicability in the present case. 21. We think it apposite to say something about septicemia. Septicemia is a systemic infection, usually caused by bacteria of various types contaminating a person's blood. When septicemia is not treated with the appropriate antibiotics, the infected blood can then contaminate other organs or tissues of the body, creating life-threatening infections. There are many things that can cause septicemia, most notably, cuts that have become infected. Infections of cuts or surgical wounds both carry risk or developing septicemia. These wounds that begin to feel hot, lock red, have red steaks coming out from them, or that seem to be draining pus should all be examined by a doctor. Since many people who have surgery now go home within a day or two, self-examination is important to rule out possible infection. With a large cut or surgical wound, one has a slightly increased risk of septicemia, because blood loss lowers the body's natural immunities. Since many people who have surgery now go home within a day or two, self-examination is important to rule out possible infection. With a large cut or surgical wound, one has a slightly increased risk of septicemia, because blood loss lowers the body's natural immunities. We have already held herein above that deceased sustained cut wounds and he was being treated in the hospital, and therefore, the risk of infection crept out from the cuts and/or surgical wounds, became overpowered and developed into septicemia in the body of the deceased and for this reason he had died on account of the said infection. 22. The Supreme Court in B.N. Kavatkar (supra), has held that if the deceased has died on account of injuries sustained to him due to septicemia, the case would not rest under section 302 of IPC and would rest under section 326 of IPC. In this view of the matter, we are also of the view that appellants cannot be convicted under section 302 and 302/149 of IPC and their conviction is required to be altered from section 302 to 326 and from section 302/149 to 326/149 of IPC. However, the conviction and jail sentence awarded by the learned trial Judge to the respective appellants under section 147 and 148 of IPC is upheld. 23. However, looking to the seriousness of the injuries as both the forearms of the deceased were brutally chopped and were lying in hanging condition as well as the incised wound on the left leg below the knee was also found to be grievous in nature, according to us, all the appellants shall undergo 7 years rigorous imprisonment. The amount of fine as imposed by the learned trial Judge on each of the appellants is enhanced from Rs.1,000/- to Rs.15,000/-, in default, they shall further suffer rigorous imprisonment of two years. The payment of entire amount of fine would be the compensation under section 357 CrPC and shall be paid to the wife Ram Sakhi Bai (PW1) of the deceased and in case she is not surviving, let it be paid to her daughter Ramdulari Bai (PW2). 24. Resultantly, this appeal succeeds and is allowed in part. The payment of entire amount of fine would be the compensation under section 357 CrPC and shall be paid to the wife Ram Sakhi Bai (PW1) of the deceased and in case she is not surviving, let it be paid to her daughter Ramdulari Bai (PW2). 24. Resultantly, this appeal succeeds and is allowed in part. The conviction of appellants, namely, Shibbu, Navala and Munna is altered from section 302 to 326 of IPC and the conviction of appellants, namely, Pappu and Narayan is altered from section 302/149 to 326/149 of IPC with the aforesaid modification in the sentence. Their conviction under other offences as held by learned trial Court is hereby upheld. 25. The appellants are on bail, their bail bonds are cancelled and they are directed to surrender before the learned trial Court on 13.4.2009 for serving out the remaining part of the sentences. The trial Court is directed that in case the appellants do not surrender on 13.4.2009, arrest warrants be issued against them to serve out the sentence. Simultaneously notice may also be issued to the surety that why bail bonds shall not be forfeited and may pass necessary orders in accordance to the law. Photo copy of bail bonds of appellants be sent by the registry to the trial Court. The trial Court shall also put its endeavour to pay the entire amount of fine towards compensation under section 357 CrPC as directed by this Court and to do needful accordingly. The trial Court is further directed that after the appellants are sent to jail to serve out the sentence, a report of the same may be sent to the registry of this Court.