JUDGMENT 1. - By the judgment dated 31.7.2004 learned Additional Sessions Judge (Fast Track), Rajsamand, camp Udaipur convicted the accused appellants for an offence punishable under Section 302/34 Indian Penal Code and sentenced them to undergo life term imprisonment with a fine of Rs. 1000/- each. In the event of default in payment of fine they were made liable to undergo additional imprisonment for a period of three months. To question correctness of the judgment aforesaid this appeal is preferred. 2. The factual matrix necessary to be noticed is that a criminal case was lodged at Police Station Bekaria District Udaipur against the present appellants for commission of offence punishable under Section 302/34 Indian Penal Code, by acting upon the information (Ex.P-1) provided by Smt. Kastu Bai (PW-14). As per the information drawn Surtaram, husband of Kastu, went to a "Bhopa" on 24.11.2003 to verify the reason of causing death of his lamb. Kastu (PW-14) while passing through a 'nala' heard some noise and found that Lalaram and Sona were beating her husband Surtaram with axe and lathi. On seeing her, the accused persons fled from the spot. The informant lady then went to her house and returned in morning to the place of occurrence, where dead body of Surtaram was lying. 3. During the course of investigation the investigating agency arrested the accused persons and at their instance recovered blood stained axe and a lathi. The axe and the lathi recovered were sent to the Forensic Science Laboratory for their serological examination along with certain other articles including muffler and shrit of the deceased. As per the Forensic Science Laboratory report (Ex.P-22) the axe, lathi, mufler and shrirt were found stained with "B" group of blood. An autopsy was conducted on the body of deceased Surtaram which was having following ante-mortem injuries: 1. Incised wound - 3/4' x 1/4" extending to teeth, breaking the lower incisors and gum, lower jaw, lot of blood fluid oozed from the mouth. Injury is dangerous in nature and caused by blunt weapon. 2. Incised wound of size 1/4" x 1/4" and muscle deep present appr. 1" far from injury No. 1 on right side of lower jaw caused by blunt weapon, grievous in nature. 3. Cut wound on left ear - left ear, from the middle, totally cut by sharp weapon, blood clot present around the wounds, dangerous in nature. 4. 2. Incised wound of size 1/4" x 1/4" and muscle deep present appr. 1" far from injury No. 1 on right side of lower jaw caused by blunt weapon, grievous in nature. 3. Cut wound on left ear - left ear, from the middle, totally cut by sharp weapon, blood clot present around the wounds, dangerous in nature. 4. Bruise- 5" x 1/2" present on right side of chest. Simple in nature. 5. Bruise-7" x 1/2" present below injury No. 4 extending to left side also. Below this another bruise of .......present obliquely below injury No. 5 Both simple. 6. Another bruise of size - 5" x 1/2" present above extending from right side of the left side. 7. Abrasion- 11/4" x 1/4" over right forearm below wrist, simple. 8. Abrasion 1/2" x 1/2" on shin of right leg, simple in nature. The cause of death given was shock and coma because heavy bleeding caused by injures No. 1, 2 and 3. 4. After completion of investigation a police report as per provisions of Section 173 Cr.P.C was filed before the competent Court and the case was committed to the Court of Sessions. The trial Court framed the charges and on denial of the same trial commenced. 5. The prosecution supported its case with the aid of 16 witnesses and 22 documents. PW-14 Smt. Kasha Bai was cited as an eye-witness, PW-16 Madhav Giri narrated all the steps taken during the course of investigation being Investigating Officer, PW-10 Dr. Subir Metra adduced medical evidence as he conducted autopsy on the person of deceased Surtaram and PW-8 Suraram verified recovery of axe at the instance of accused Lalaram and lathi at the instance of accused Soma. An opportunity was accorded to the accused appellants to explain the adverse circumstances existing in prosecution evidence. The accused persons in general termed the entire evidence false and tried to explain that due to some land dispute they have been falsely implicated in a criminal case. After considering entire material available on record the trial Court convicted the accused appellants and sentenced accordingly. 6. In appeal, submission of counsel for the accused appellants is that even by accepting the entire prosecution case the act of the accused appellants does not travel beyond an offence described under Section 304 Part-I Indian Penal Code. 7. After considering entire material available on record the trial Court convicted the accused appellants and sentenced accordingly. 6. In appeal, submission of counsel for the accused appellants is that even by accepting the entire prosecution case the act of the accused appellants does not travel beyond an offence described under Section 304 Part-I Indian Penal Code. 7. Per contra as per learned Public Prosecutor the repeated injuries given by the accused appellants clearly establishes their intention to kill Surtaram, therefore, the trial Court rightly convicted for an offence punishable under Section 302/34 Indian Penal Code. 8. Heard counsel for the appellants and the learned Public Prosecutor. 9. PW-14 Smt. Kastu Bai in the instant matter in quite specific terms stated that she saw accused Lala and Soma giving lathi and axe blows to her husband Surtaram. She also stated that on seeing her, the accused persons fled from the spot of occurrence, where Surtaram was lying down. Surtaram was not in position to speak anything, therefore, she left him there and went to her residence. In morning when she came to the place of occurrence she found Surtaram died. The involvement of the accused appellants in the event as stated by Smt. Kastu Bai.(PW-14) is corroborated by the statements of PW-15 Miss Khangli and also by the evidence pertaining to recovery of blood stained axe and blood stained lathi from the accused persons. The blood group of the blood stains available on lathi and axe were matching with the blood group of deceased as available on his muffler and shirt. The recovery made at the instance of the accused persons is also adequately established by the prosecution. As such, the involvement of the present appellants in the crime in question is established beyond any shadow of doubt. 10. The only question requires consideration is that whether the act of the appellants is an offence punishable under Section 302 I.P.C. or is a culpable homicide i.e. not amounting to murder. 11. The eye-witness of the incident Smt. Kasha Bai (PW-14) stated that the deceased was having some dispute regarding agricultural land with the accused persons. This fact has also been corroborated by other witness. PW-14 Smt. Kastu Bai also stated that on seeing her, the accused persons fled from the spot. She also went at the place of occurrence and found that Surtaram was not in position to speak. This fact has also been corroborated by other witness. PW-14 Smt. Kastu Bai also stated that on seeing her, the accused persons fled from the spot. She also went at the place of occurrence and found that Surtaram was not in position to speak. This witness then left the place of occurrence and came to her residence. She stayed there in night and when she went to the place of occurrence in the morning again she found Surtaram died. As such Surtaram remained at an abandon place for whole night. 12. As per the medical evidence available on record the person of deceased was having ante-mortem injuries and the cause of death was excessive bleeding due to injuries No. 1, 2 and 3. The injuries available on the person of deceased were not on any vital part. It is stated by PW-10 Dr. Subir Metra that if necessary medical aid would have been given to deceased Surtaram in time his life would have been saved. No injury is found by this witness sufficient to cause death. On minute consideration of the evidence available on record it can be very well concluded that the accused persons were not having any intention to cause death of Surtaram though they may be having knowledge that grievous injuries given by them may cause death. As such, the crime committed by them is not an offence punishable under Section 302 Indian Penal Code but an offence punishable under Section 304 Part-I Indian Penal Code. 13. In view of this finding, this appeal is allowed in part. The conviction of the appellants for the offence punishable under Section 302/34 Indian Penal Code is modified in the conviction for the offence punishable under Section 304 Part-I Indian Penal Code. The sentence awarded to the appellants i.e. of life term imprisonment with fine of Rs. 1000/- each too is modified by the imprisonment for a term of nine years without any fine.Appeal partly allowed. *******