JUDGMENT DILIP B. BHOSALE J.—This appeal is directed against the judgment and order dated 30.1.2008 rendered by the Presiding Officer, Fast Track Court-2, Mysore in SC No. 90/2005, convicting all the accused mainly under Section 302 read with 149 IPC. Under this provision, they are sentenced to suffer R.I. for life imprisonment and to pay fine of Rs.5,000/- each, in default to undergo S.I. for a period of two years. 2. The prosecution case, in brief, is that on 19.1.2005, at about 1.45 p.m. all the six accused by forming unlawful assembly near the bridge (pala) of Cheeranahalli village assaulted one Boregowda by means of chopper, wooden clubs and pick-axe and caused grievous injuries resulting in his death on 31.1.2005. The incident was allegedly witnessed by P.Ws. 1 to 5. After the incident, P.W. 1 informed the police on telephone about the assault. The police (P.Ws. 18 and 32), immediately rushed to the scene of offence and noticed that the deceased-Boregowda was lying in a pool of blood near pala. They immediately shifted him to K.R. Nagar General Hospital where P.W. 13-Dr. Madhav, attached to the said hospital gave him First Aid, and after recording history of assault in the MLC Register, as narrated by the injured, referred him to K.R. Hospital, Mysore. Boregowda was under treatment in K.R. Hospital at Mysore for about 11 days. On 31.1.2005 he succumbed to the injuries. P.W. 13-H.N. Siddaiah, recorded an FIR-statement of P.W. 1-Dhanaraj and on the basis thereof, registered a crime bearing Cr. No. 12/05 and set investigation in motion. During the investigation, statements of several witnesses were recorded, out of which, 32 witnesses were examined in the course of trial as P.Ws. 1 to 32. Several documents and material objects were also placed on record being Exs.P1 to P31 and Mos.1 to 9 in order to bring home guilt of the accused. The trial Court, after considering the entire evidence on record, more particularly, depositions of P.Ws. 1 to 5 and the medical evidence, convicted the accused for the offence punishable under Section 302 IPC read with Section 149 of IPC. 3. We have heard learned counsel for the parties. Learned counsel for the appellant, at the outset, submits that he has instructions not to press this appeal for acquittal of the accused and he argued the appeal only for bringing the offence down to Section 304(II) IPC. 4. 3. We have heard learned counsel for the parties. Learned counsel for the appellant, at the outset, submits that he has instructions not to press this appeal for acquittal of the accused and he argued the appeal only for bringing the offence down to Section 304(II) IPC. 4. With the assistance of learned counsel for the parties, we have gone through the entire evidence on record. P.Ws. 1 to 5 have stated as to how the incident occurred and what was the role played by each of the accused. Their evidence is consistent and it supports the prosecution case insofar as the assault is concerned. It would be advantageous to reproduce the relevant portion (paras 5-6) of the deposition of P.W. 1, wherein he has narrated as to how the incident occurred, what were the roles of each of the accused, what weapons were used by them etc., which read thus: 5. “On 19.1.2005, there occurred an incident. On that day, myself, deceased Boregowda, CW-3, CW-2 have been to our lands. Myself and 1st accused have cleaned the small canal. CW-2 and CW-3 were sowing paddy seeds. At 1.15 pm in the afternoon we completed the job. Deceased Boregowda went to CW-3 and asked CW-3 to wash his back as his back was dirt. The CW-3 washed Boregowda’s back. Thereafter myself, CW-2, deceased Boregowda and CW-3 came near the canal bridge from our lands through the lane. Pala means bridge. When I came near the bridge Accused No. 2 and 3 came from the side of the peepul tree situated near the bridge. They were holding small axe. Accused No. 2 and 3 took deceased Boregowda by holding his collar to the peepul tree. There Accused No. 1 came from the adjoining hotel holding the chopper. Accused No. 5, 4 and 6 came from the side of the village and thereafter the Accused No. 1 to 6 have formed group near Boregowda. Accused No. 1 while saying “today I will kill you” raised his chopper and hit Boregowda. Then Boregowda took his head aside and brought his right hand to avoid blow and then the chopper hit his right hand little finger. Accused No. 4 to 6 have assaulted Boregowda with a club to his chest, abdomen, and both upper and lower limbs. Boregowda fell down. Then Boregowda took his head aside and brought his right hand to avoid blow and then the chopper hit his right hand little finger. Accused No. 4 to 6 have assaulted Boregowda with a club to his chest, abdomen, and both upper and lower limbs. Boregowda fell down. Then Accused No. 17 assaulted Boregowda with chopper to his right palm, chest, ribs and lower limbs. Accused No. 2 and 3 have assaulted Boregowda with small axe to his both lower and upper limbs. Boregowda fell down. Then myself, CW-3, CW-24, CW-4, CW-6, CW-2, CW-5, CW-16 and CW-7 went to rescue. Accused No. 1 while addressing us “if you come to rescue I would do the same to you” (neevenadaru bidisalu bandare nimagu heege maduttene). Boregowda was bleeding. Then the accused persons left their house saying Boregowda is dead. They have thrown the chopper, small axe and clubs in front of the hotel. 6. I went near the phone to telephone to the police and I have telephoned the police from there. By that time CW-11 Boregowda’s wife came there. CW-10, CW-13 and CW-12 also came there. Police jeep also came. Myself, CW-2, CW-11, CW-10, CW-12, CW-13 together shifted Boregowda to K.R. Nagara Hospital through jeep. The doctors at K.R. Nagara Hospital informed the treatment facility is not sufficient and asked to shift to Mysore. By that time CW-20 Boregowda’s son came to K.R. Nagara Hospital. CW-14 and 15 also came there. The said three persons took Boregowda to Mysore in goods van.” 5. We have perused the evidence of other witnesses also. The evidence of all the eyewitnesses is consistent insofar as the actual incident of assault is concerned. Thus, we are also satisfied that the order of conviction is based on truthful and trust-worthy ocular version of P.Ws. 1 to 5 and it deserves to be confirmed in the appeal. 6. We, therefore, now proceed to examine whether the offence could be brought down to Section 304 Part II of IPC. Our attention was invited to the evidence of P.W. 13-Dr. Madhav. In his deposition, he described the injuries sustained by the deceased, which read thus: “(i) One lacerated wound measuring 3 cms × 3 cms over his right knee and muscles were torn and was seen from the said injury. (i) Three lacerated wound measuring 0.5 × 0.5 cms below the right knee. Madhav. In his deposition, he described the injuries sustained by the deceased, which read thus: “(i) One lacerated wound measuring 3 cms × 3 cms over his right knee and muscles were torn and was seen from the said injury. (i) Three lacerated wound measuring 0.5 × 0.5 cms below the right knee. (ii) Three lacerated wound measuring 1 cm × 1 cm below the left knee and three cut injuries 10 cms below the left knee. (iii) There was swelling and pain at right knee. (iv) 1/3 fracture over the middle portion of the right leg is suspected. (v) 1/3 fracture over the middle portion of the left leg is suspected. (vi) It appeared that there is fracture of right little finger. (vii) There was swelling and pain in the right hand (behind plam) and at that place it look like fracture. (viii) There was swelling and pain in the left wrist and appeared to be a fracture. (ix) Pain over his left chest portion at the level of Rib Nos. 7 to 9. (x) It appeared swelling and pain over the right elbow. (xi) It appeared swelling over abdomen.” 7. It is on the basis of these injuries, learned counsel for the appellant submitted that though the eyewitnesses have stated that the accused persons with the weapons in their hands, assaulted the deceased even on the vital parts of the body, namely chest and the abdomen, no surface injuries were caused to the deceased on those parts of the body. In other words, he submitted that insofar as injury Nos. 10 and 12 are concerned, though they are mentioned by the doctor as injuries, in the cross-examination, he has clearly stated that no external marks of injuries were seen corresponding to the pain over left chest and swelling over the abdomen. In respect of other injuries, he submitted that most of the injuries are on the lower extremities and only injury Nos. 7, 8, 9 and 11 are on the upper extremities. This clearly shows that the accused persons did not have an intention to kill the deceased. He also invited our attention to other medical evidence to contend that the deceased was alive for 12 days and during this period, he was operated. The operation notes clearly show that almost all the vital organs were intact and they were normal. This clearly shows that the accused persons did not have an intention to kill the deceased. He also invited our attention to other medical evidence to contend that the deceased was alive for 12 days and during this period, he was operated. The operation notes clearly show that almost all the vital organs were intact and they were normal. He, therefore, submitted that, in any case, though a knowledge could be attributed, it cannot be stated that accused had any intention to kill the deceased. If they had such intention, they could have assaulted the deceased with weapons, such as chopper, clubs and pick-axe, on vital parts of the deceased and could have killed him on the spot. 8. On the other hand, learned SPP submitted that injury Nos. 10 and 12 were the cause of death and both these injuries were on the vital parts, namely chest and abdomen. He invited our attention to the statement made by P.W. 13-Dr. Madhav in the cross-examination wherein he stated “it is not correct that there is no possibility of death caused due to injury Nos. 10 and 12”. It is on the basis thereof, he submitted that both the injuries were caused by the accused and therefore, it cannot be stated that they had no intention to kill the deceased. 9. We have perused the entire medical evidence on record including the depositions of P.W. 13-Dr. Madhav and P.W. 17-Dr. Udayashankar who conducted the post mortem. We have also perused the evidence of P.W. 19-Ramanayak, who produced the medical papers pertaining to the deceased. 10. From perusal of the injuries mentioned by P.W. 13-Dr. Madhav, it is clear that except injury Nos. 10 and 12, all other injuries were on the lower and upper extremities. Out of those injuries, injury Nos. 5 and 6 were described as fractures. It is pertinent to note that P.W. 13 further stated that no X-ray of those injuries were taken on his admission to the hospital. 11. P.W. 17 conducted post mortem. He confirms the external injuries as mentioned by P.W. 13. Insofar as internal damage is concerned, he did not specifically connect it with corresponding external injury Nos. 10 and 12. It is pertinent to note that P.W. 13 further stated that no X-ray of those injuries were taken on his admission to the hospital. 11. P.W. 17 conducted post mortem. He confirms the external injuries as mentioned by P.W. 13. Insofar as internal damage is concerned, he did not specifically connect it with corresponding external injury Nos. 10 and 12. Regarding cause of death, P.W. 17, in the Court, on perusal of PM report, case sheets of the Hospitals treated, Histopathlogy report, opined that “death was due to respiratory failure consequent to Adult Respiratory Distress Syndrome (ARDS) due to multiple fractures and blunt injury to chest and abdomen”. 12. There is no dispute that the deceased sustained only two fractures namely fracture of both bones of right leg and fracture of left thigh bone. Insofar as injury Nos. 10 and 12 are concerned, it appears that when the deceased was in the hospital at Mysore from 19.1.2005 to 31.1.2005, he was operated on 19.1.2005 at 9.30 p.m. The findings recorded by the Doctor who conducted surgery read thus: “ (i) LA (left) side of chest was painted and draped. Xylocain was given at 7th intercostal space. Incision was put and dissected C forceps, Pleura was opened. Air gushed out, malecot catheter drain tube was placed and connected to ICD Bag. Complete hemostasis was maintained and wound closed. Laprotomy: i GA Part painted and draped. Abdomen was opened C (Lt) Paramedian incision. Abdomen opened in layers. Peritoneal cavity was found to be containing about 350-400 ml blood, which was drained, small tear was noted in mesentry which was ligated. Liver was normal, stomach and spleen was normal. Small and large bowel was normal. Urinary bladder was normal. Complete hemostasis was achieved and suction tube drain was placed and abdomen closed in layers. GC: Fair at the end of surgery Pt. Shifted to NSB VII.” 13. From perusal of the operation notes, it appears that 350-400 ml blood was accumulated in peritoneal cavity. None of the doctors who were examined by the prosecution have stated the cause for accumulation of blood in peritoneal cavity. So far as other organs are concerned, operation notes clearly show that almost all internal organs were normal. The prosecution did not examine the doctor who conducted the surgery or made any efforts to connect accumulation of blood with the injuries sustained by the deceased. So far as other organs are concerned, operation notes clearly show that almost all internal organs were normal. The prosecution did not examine the doctor who conducted the surgery or made any efforts to connect accumulation of blood with the injuries sustained by the deceased. The doctor who examined the deceased did not state anything about the reasons for accumulation of blood. In view thereof, we find force in the submission that it cannot be connected with the so called injury on the abdomen. 14. Dr. Madhav (P.W. 13) was specifically asked about injury Nos. 10 and 12. It is advantageous to reproduce relevant portion of his deposition wherein he had answered the questions in respect of those injuries, which reads thus: “It is true that the problem at Sl. No. 12 shown in Ex.P-13 could be caused if there is injury inside the body or if there is any disorder in the intestine. There is possibility of patient dying in the background of Injury Nos. 10 and 12 shown in Ex.P-13, and it appeared to me on examining the injured, I did not find swelling in Injury No. 10 shown in Ex.P-13. Likewise I did not find any external injury outside the said place. It did not appear to me that while examining, there is no reddish colour at Injury No. 10 shown in Ex.P-13. It did not appear to me that there is no external injury at Injury No. 12 in Ex.P-13. I did not examine as to the reasons as to why problem shown at Sl. No. 12 in Ex.P-13.” 15. From bare perusal of his testimony, it is clear, the doctor did not find any swelling in injury No. 10 and external injury on the surface. He further mentioned that he did not find any reddish colour on injury No. 10. Keeping in view the observations made by doctor in the operation notes and the deposition of P.W. 13, the prosecution cannot be stated to have proved beyond reasonable doubt that the internal damage was as a result of external injury Nos. 10 and 12. If what the eyewitnesses have stated is true, the deceased would have sustained more and prominent injuries on the chest and abdomen. 10 and 12. If what the eyewitnesses have stated is true, the deceased would have sustained more and prominent injuries on the chest and abdomen. Moreover, if the accused persons had an intention to kill the deceased, they could have done so with the deadly weapons, which they were armed with at the relevant time. Accused No. 1 was armed with chopper, whereas accused Nos. 2 and 3 were armed with pick axe. They could have assaulted on vital parts and killed and the deceased on the spot. There was no obstacle on their way to cause injuries to the deceased on his vital parts and kill him on the spot. 16. It is pertinent to note that P.W. 13, in his depositions, has not stated that the injuries suffered by the deceased were sufficient in ordinary course of nature to cause death. In the cross-examination, to one question, he answered stating that “it is not correct that there was no possibility of causing death due to injury Nos. 10 and 12”. From his opinion, it is clear, that the doctor was not confident/sure that injury Nos. 10 and 12 caused the death of the deceased. 17. In the circumstances, we are satisfied that though knowledge could be attributed to the accused that the injuries caused by them could have caused the death, they did not have an intention to kill the deceased and therefore, in our opinion, the offence under Section 304(II) of IPC is attracted. 18. We have heard learned counsel for the parties on the point of sentence also. We were informed that accused Nos. 1 and 2 have already undergone seven years and four months imprisonment; accused Nos. 4 and 5 have undergone five years and two months imprisonment and accused No. 6 has undergone four years and six months. It has also come on record that accused No. 6, at the time of incident was seven months pregnant. Accused Nos. 4 to 6 assaulted deceased with wooden clubs. Major injuries suffered by the deceased were allegedly caused by accused Nos. 1 to 3. Keeping that all in view, we are inclined to reduce the sentence of all the accused to the period already undergone and enhance the fine amount. Hence, we pass the following order: ORDER (i) The appeal is partly allowed. Major injuries suffered by the deceased were allegedly caused by accused Nos. 1 to 3. Keeping that all in view, we are inclined to reduce the sentence of all the accused to the period already undergone and enhance the fine amount. Hence, we pass the following order: ORDER (i) The appeal is partly allowed. (ii) The judgment and order dated 30.1.2008 rendered by the Presiding Officer, Fast Track Court-2, Mysore, convicting all the six accused for the offences punishable under Section 302 IPC read with Section 149 of IPC is set aside. So far as the conviction and sentences awarded under other provisions of IPC are concerned, they are confirmed. (iii) Appellants-Accused Nos. 1 to 6 are convicted for the offence punishable under Section 304(II) of IPC read with Section 149 of IPC and sentenced to suffer R.I. for the period already undergone and to pay fine of Rs.10,000/- each and in default, to undergo S.I. for a period of two years. (iv) It is needless to mention that all the sentences of imprisonment imposed on accused Nos. 1 to 6 shall run concurrently. (v) If the amount of fine is paid/deposited by the appellant-accused persons within a period of two months from today, Rs.60,000/- out of the fine amount is directed to be paid to the wife of the deceased. If the wife is not alive, to P.W. 10- Muddukumar, son of the deceased. (vi) Learned Sessions Judge shall see to it that this order is complied with. He may inform the wife/son of the deceased about this order within a period of four weeks from today.