JUDGMENT 1. - These appeals from the judgment and order dated 19.3.2007 of Additional Sessions Judge (Fast Track), Dungarpur in Sessions Case No.69/2006 (79/2006). 2. The case of the prosecution, that has been accepted by learned Additional Sessions Judge, was in brief as follows:- 3. On 27.5.2006 at police station Chitri, an oral information was given by Shri Bhala (PW-1) that on 26.5.2006 about 30-35 persons gathered and had a party at the residence of Sukhram on the occasion of engagement of his son. In the party as per the customs prevailing in the caste wine and tobacco was served. At about 09:00 PM Bhala alongwith Vela was returning to his home, Soma and Dhula Ahari (both accused appellants) came towards them. Soma was armed with a lathi from that he started giving blows to Vela. Dhula too gave a stone blow to Vela. Both the assailants threatened to Bhala also. As a consequent to assault so given Vela died. 4. A criminal case then was registered, investigation was made and a police report then was filed before the competent court accusing Soma and Dhula for commission of the offence punishable under Section 302/34 Indian Penal Code. On committal of the case to the court of Sessions, charges for the offence punishable under Section 302 Indian Penal Code and in alternative 302/34 Indian Penal Code were framed. The trial commenced on denial of the charges by the accused persons. 5. The prosecution supported its case with the aid of 15 witnesses and documents Ex.P./1 to Ex.P./23. The accused while availing opportunity to explain the circumstances adverse to them in prosecution evidence denied the allegations and stated that they were falsely implicated in the case. 6. The trial court convicted both the accused for the offences punishable under Section 302/34 Indian Penal Code and sentenced to undergo life imprisonment with fine in a tune of Rs. 2000/- each. In the event of default to payment of fine 6-6 months simple imprisonment was awarded. 7. The trial court based its findings on the statements of PW-1 Bhala, PW-5 Laxman, PW-14 Darshan Singh, the Investigating Officer, and the recovery of lathi under Ex.P/8 from accused Soma. Reliance was placed upon the statements of PW-6 Heeralal to establish motive behind the crime. PW-15 Dr. 7. The trial court based its findings on the statements of PW-1 Bhala, PW-5 Laxman, PW-14 Darshan Singh, the Investigating Officer, and the recovery of lathi under Ex.P/8 from accused Soma. Reliance was placed upon the statements of PW-6 Heeralal to establish motive behind the crime. PW-15 Dr. Haricharan Meena verified the contents of postmortem report Ex.P/20, as per that person of deceased Vela was having following injuries:- 1. Laceration 5"x 1" x =" on the left parietal bone of skull. 2. Laceration obliquely 2"x 1"x " laterally of the left eye. 3. Laceration with swelling 3" x 1" x =" on the right ear transversely around the ear. 4. Laceration 4" x 1" x =" till the brain on the right parietal bone obliquely. 8. The cause of death given as per the postmortem report Ex.P/20 was due to injury No.4 i.e. rupture in the brain membrane and due to intra cranial and ex. Para cranial hemorrhage. 9. In appeals, it is strenuously urged by counsel for the appellants that even by accepting the prosecution case in totality, the offence of murder as described under Section 300 Indian Penal Code could not be established. At the most it travel upto the offence punishable under Section 304 part-II Indian Penal Code against accused Soma and under Section 325 Indian Penal Code against accused Dhula. 10. Learned Public Prosecutor has made all efforts to defend the conviction and sentence. 11. Before proceeding further we would like to note the basic ingredients to establish a murder as per Section 300 Indian Penal Code. The ingredients noticed are just in consonance with several judgments of Hon'ble Supreme Court and need of noticing those is only due to the fact that we are coming across quite frequently findings of murder in number of cases of homicidal deaths without examining the necessary ingredients to bring a case within the term "murder" as described under Section 300 Indian Penal Code. To obtain a conviction under Section 302 Indian Penal Code, as per Hon'ble Supreme Court in Virsa Singh v. State of Punjab, reported in 1958 SCR 1495 , the prosecution should prove mandatorily that:- 1. It must establish, quite objectively, that a bodily injury is present. 2. The nature of the injury must be proved; these are purely objective investigations. 3. It must establish, quite objectively, that a bodily injury is present. 2. The nature of the injury must be proved; these are purely objective investigations. 3. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. 4. It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 12. The third clause of Section 300 Indian Penal Code consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is found to be present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The words "and the bodily injury intended to be inflicted" are merely descriptive. All this means is, that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury found to be present was the injury intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. 13. In the case aforesaid with regard to issue of intention, Hon'ble Apex Court further explained that "the question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question, and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion". 14. Now coming to the facts of the case in hand. Suffice it to mention that the prosecution quite adequately established homicidal death of Vela, involvement of accused Soma and Dhula in the crime on basis of the evidence adduced. 15. 14. Now coming to the facts of the case in hand. Suffice it to mention that the prosecution quite adequately established homicidal death of Vela, involvement of accused Soma and Dhula in the crime on basis of the evidence adduced. 15. PW-1 Bhala without any ambiguity stated that on the fateful day at about 09:00 PM he was going to his house alongwith Vela, the accused persons abruptly came there, accused Soma was armed with a lath and he gave a lath blow on the head of Vela. He further stated that accused Dhula too indulged in the crime with stones. However, no specific part of the body is pointed out by this witness where accused Dhula gave stone blow. The head injuries are definitely assigned to accused Soma. The facts stated by PW-1 Bhala are substantiated by an another witness PW-7 Jawra who was standing quite close to the spot incidentally. 16. PW-14 Shri Darshan Singh provided all necessary facts relating to the steps taken by him during the course of investigation being the Investigating Officer. The recovery of lath made by him at the instance of accused Soma has also been adequately established. The lath was having blood stains with "A" group that was also found on the other articles including the blood smeared soil collected from the spot of incident. The facts aforesaid are adequate to establish homicidal death of Vela due to the head injury given by accused Soma. 17. The motive behind the crime as per PW-6 Heeralal was that Vela was working as the mate and some dispute was there about digging a patch on some land pertaining to which a claim was made by Roopa, Soma and Dhula. The motive as stated by this witness may be a reason for the incident, but merely on that basis no inference could have been drawn about the intention of the accused persons to kill Vela. It is not in dispute that the accused persons met deceased and Bhala on way and accused Soma then was having a lathi in his hand i.e. usually kept by villagers while moving in night. The injury given by lathi certainly cause death of Vela, but there is nothing on record to infer that the intention of accused Soma was to inflict such an injury that may certainly result into death. The injury given by lathi certainly cause death of Vela, but there is nothing on record to infer that the intention of accused Soma was to inflict such an injury that may certainly result into death. If the accused was having any intention to kill Vela, he would have given several more injuries to him. It is only the injury No.4 that has caused death. The entire incident appears to be an out come of some minor disputes between the parties and no material is available to draw inference about intention to cause death. The accused Soma definitely gave lathi blow that resulted into death and another of the injury may be having knowledge about such consequence, but on this count commission of an offence punishable under Section 302 Indian Penal Code cannot be inferred. The case of accused Soma, thus, in no manner travels beyond an offence defined under Section 304 part-I Indian Penal Code. 18. So far as accused Dhula is concerned, no definite allegation is made against him. PW-1 Bhala as well as PW-7 Jawra both have stated that this witness gave certain blows by stones. The injuries except injury No.4 are not grievous and, therefore, even if it is assumed that any injury out of these three, if is given by this accused, even then his case does not travel beyond an offence punishable under Section 325 Indian Penal Code. In such circumstances, we are of the view that conviction of accused persons for the offence punishable under Section 302/34 Indian Penal Code is erroneous. 19. Accordingly, this appeal is allowed in part. The conviction of accused appellant Soma is altered from Section 302/34 Indian Penal Code to Section 304 part-I Indian Penal Code and this appellant is sentenced to serve seven years rigorous imprisonment with a fine of Rs. 2000/- and further to undergo six months simple imprisonment in the event of default in payment of fine. The conviction of accused Dhula is altered from one under Section 302/34 Indian Penal Code to Section 325 Indian Penal Code and this accused appellant is sentenced for the imprisonment already undergone by him during the course of investigation, trial and after conviction. This accused is present availing suspension of sentence, thus, the bail bonds and sureties furnished by him stands discharged.Appeal partly allowed. *******