JUDGMENT 1. - This appeal has been filed against the judgment dated 18.5.2007 of Additional Sessions Judge(Fast Track), Chittorgarh. By the impugned judgment, in Sessions Case No. 18/2007 titled as State v. Kailash and another the said court has convicted and sentenced both the accused-appellants as follows:- (1) Kailash: (1) Section 302 IPC : Life imprisonment with a fine of of L 5000/- and, in default of payment of fine, six months' additional rigorous imprisonment (2) Section 447 IPC : One month's rigorous imprisonment with a fine of L 500/- and, in default of payment of fine, fifteen days' additional rigorous imprisonment. (2) Rameshwar (1) Section 302/34 : Life imprisonment with a fine of of L 5000/- and, in default of payment of fine, six months' additional rigorous imprisonment (2) Section 447 IPC : One month's rigorous IPC imprisonment with a fine of L 500/- and, in default of payment of fine, fifteen days' additional rigorous imprisonment. 2. In this appeal, it has been argued on behalf of the accused-appellants that the judgment of the trial court is against the facts as well as against the law. It has also been argued that there was no question of common intention and so conviction of the accused-appellants does not stand. Similarly, it has also been argued that since there was no previous enmity between the appellants and the deceased, so without motive, no body will kill another person. It has also been argued that the doctor who had conducted the post-mortem of deceased Raju have categorically stated that the head injury of Raju was of such type that it could not have been caused by a sword which has allegedly been recovered from possession of accused Kailash. In the circumstances, it has been prayed that benefit of doubt should be given to both the accused-appellants and, in the alternative, it has also been submitted that accused-appellant Kailash who is said to be the main accused in the case, is in jail since 5.1.2007 till today and other accused-appellant Rameshwar has also suffered confinement from 5.1.2007 to 9.4.2008 when he was ordered to be enlarged on bail by this Court. It has been argued by the appellants that there was no repeated injury, no previous enmity, no criminal antecedents, no motive and no common intention, case might be of sudden altercation so both the accused-appellants should be released on undergone sentence because they have not committed murder of Raju. 3. In the light of aforesaid arguments, we have perused the record and we have also heard the arguments of the learned Public Prosecutor. The learned Public Prosecutor vehemently opposes the prayer of accused-appellants. It has been argued on behalf of the learned Public Prosecutor that the judgment of the trial court suffers from no infirmity and so the judgment of the trial court should be affirmed as such. 4. In this case, the main argument of the accused appellant was based on the statement of Dr. Kishan Dhanak, PW-19, who had conducted the post-mortem of deceased Raju. This doctor has stated that any injury mentioned in post-mortem report Ex.P. 30 could not possibly be caused by sword (Article-1) which was shown to him during his examination. On the other hand, it has been argued by the learned Public Prosecutor that the post-mortem was conducted on 4.1.2007 and the incident had occurred on 28.12.2006. In the intervening period, the injury must have been stitched and the dead body might have also been mishandled after death of Raju so the shape of injury must have changed and that is why PW-19 Dr. Kishan Dhanak was in confusion regarding the possibility of weapon which could have been used to cause the head injury. The prosecution has relied upon statement of PW-18 Dr. Dinesh Kumar Paliwal in this regard and Dr. Dinesh Kumar Paliwal was the doctor who had conducted the medical examination of injured Raju soon after the incident on 28.12.2006 and he states that there were two abrasions on forearm of Raju and there was one incised wound on his head which was 15 cms. X 2 cms. X 1 cm. which could have been caused by any sharp object. He has stated that the head injury could also have caused the death of injured. Thus, there is difference in the opinion of Dr. Dinesh Kumar Paliwal and Dr. Kishan Dhanak and we rely upon the statement of Dinesh Kumar Paliwal in this regard. Thus, the argument raised by the learned counsel for the appellants is not tenable. 5. He has stated that the head injury could also have caused the death of injured. Thus, there is difference in the opinion of Dr. Dinesh Kumar Paliwal and Dr. Kishan Dhanak and we rely upon the statement of Dinesh Kumar Paliwal in this regard. Thus, the argument raised by the learned counsel for the appellants is not tenable. 5. It has also been argued that the sword allegedly recovered from Kailash was found containing no human blood but in this regard, the learned Public Prosecutor has drawn our attention to FSL report, which clearly mentions that there were stains of human blood on the sword which was recovered from the possession of accused-appellant Kailash, though blood group of those stains could not be determined for some reasons. Thus, the second argument raised by the accused-appellants is also not acceptable to this Court. 6. Third argument advanced by the learned counsel for the appellants is that there is no motive, no previous enmity and so the charge of murder should fail. On the other hand, it has been argued by the learned Public Prosecutor that if there was no previous enmity then why the eye-witnesses Narayan and Girdhari would have implicated both the accused-appellants in a false case of murder. No answer has been given by the learned counsel for the appellant to this query put up by the learned Public Prosecutor. It is a matter of prudence that no one will falsely implicate an innocent person on a charge of murder leaving the main culprit. 7. PW-3 Narayan is eye-witness of the incident. He states that in the said night, at 9 p.m. he was with Raju at his agricultural farm for taking care of their crops. He says that at that time Raju was sleeping and suddenly Kailash attacked him with a sword and Rameshwar attacked him with a 'dhariya' and Kailash caused the head injury of Raju while Rameshwar caused injury on forearm of Raju. He says that he cried for help and so immediately, Girdhari PW-4 rushed to the spot. He says that report Ex.P.3 was lodged by him. He was cross-examined in details and charges of previous enmity were also levelled against him in the cross-examination but he has not deviated from his examination-in-chief at any point of time. He has been found fully innocent and reliable witness. There is no reason to disbelieve him. 8. He says that report Ex.P.3 was lodged by him. He was cross-examined in details and charges of previous enmity were also levelled against him in the cross-examination but he has not deviated from his examination-in-chief at any point of time. He has been found fully innocent and reliable witness. There is no reason to disbelieve him. 8. Similarly,PW-4 Girdhari has also been found a truthful witness. Without any exaggeration, he states that he rushed to the spot. He says that though he could not see the actual sequence of events but he had seen Kailash and Rameshwar on the spot and Narayan had told that Kailash had attacked Raju with the help of sword and Rameshwar attacked Raju with the help of 'dhariya'. He says that there was an injury caused by sword on the head of Raju and two simple injuries of 'dhariya' were there on the forearm of Raju. He has not been deviated in his cross-examination. Nothing important has been elicited in his cross-examination. Again it can be said that there is no reason to disbelieve the testimony of PW-4 Girdhari also. 9. Recovery of sword and 'dhariya' respectively from Kailash and Rameshwar has not been denied at the stage of arguments by appellants in this appeal. Other witnesses are formal in nature and they too do not substantiate the arguments of the accused-appellants as such. 10. Now, the last argument raised by the accused appellants is to the effect that there was no common intention between the two accused-persons and we agree with this argument. Certainly, no evidence has been advanced regarding common intention of both the accused-appellants while committing the alleged crime. So, Kailash may be responsible only for causing the head injury and Rameshwar may be responsible for causing simple injuries on the forearm of Raju. Genesis of the incident has not been disclosed either by the prosecution or by the defence. There was no repeated injury caused by accused-appellant Kailash. Raju had expired because of the injuries after about one week. Genesis of the incident has not been disclosed either by the prosecution or by the defence. There was no repeated injury caused by accused-appellant Kailash. Raju had expired because of the injuries after about one week. In the circumstances, it appears that the act of Kailash also does not come within the definition of murder but it comes within the definition of culpable homicide not amounting to murder because the act of Kailash by which the death was caused was done with the knowledge that it was likely to cause death of Raju but it was without any intention to cause his death and also without intention to cause such bodily injury as is likely to cause death of Raju. 10. Our view is supported from the following rulings also:- Gurdeep Singh v. Jaswant Singh, AIR 1992 Supreme Court 987 :- In this case, several persons attacked the victim but the intention to cause death was not proved and one of the accused had caused injury to the victim that was likely to cause death. In such cases that accused was held guilty under section 304 Part-II of IPC and other accused persons causing other injury not on the vital part were convicted under sections other than section 302 and 304 IPC. Hafiz v. State AIR 2006 Supreme Court 632 :- In this case, the incident took place on spur of the moment and the accused causing death was convicted under section 304 Part-II IPC, however, the co-accused was convicted under section 326 IPC only as he had beaten the deceased with 'Lathi' without an intention to kill. State of M.P. v. Deshraj AIR 2004 Supreme Court 2764 :- In this case, the death was a result of sudden quarrel between some parties and there was no intention of pre-determination to cause the death. The accused was convicted under section 304 Part-II IPC. 11. Thus, conviction of accused-appellant Kailash deserves to be converted from Section 302 IPC to Section 304 Part II IPC. His conviction under Section 447 IPC has not been challenged during argument in appeal. His conviction on this count does not deserve to be disturbed. Similarly, conviction of accused-appellant Rameshwar deserves to be converted from Section 302/34 IPC to Section 323 IPC because there was no common intention between the two accused-appellants in this case. His conviction under Section 447 IPC has not been challenged during argument in appeal. His conviction on this count does not deserve to be disturbed. Similarly, conviction of accused-appellant Rameshwar deserves to be converted from Section 302/34 IPC to Section 323 IPC because there was no common intention between the two accused-appellants in this case. Accused-appellant Rameshwar has not challenged his conviction under Section 447 IPC during the arguments, so his conviction too on that count does not deserve to be disturbed. 12. Now, the question of sentence. Accused-appellant Kailash has suffered custody from 5.1.2007 till today. In the interests of justice and looking to the nature of the offence committed by accused-appellant Kailash, he deserves to be released on undergone sentence under Section 304 Part II IPC. The sentence under Section 447 IPC is also reduced to one month's rigorous imprisonment only. The benefit of concurrent sentences is also hereby given to him and so he be released immediately, if not wanted in any other case. 13. Similarly, accused-appellant Rameshwar be also released forthwith, if not wanted in any other case because his conviction and sentence is also hereby modified as under:- (1) Section 323 IPC : six months' rigorous imprisonment (2) Section 447 IPC : one month's rigorous imprisonment 14. Benefit of concurrent sentences is also hereby given to him. 15. Thus, appeal of both the appellants is partly allowed as indicated above. One copy of this judgment be sent to the Superintendent, District Jail, Chittorgarh for office purpose. The record of the trial court should be sent back along with a copy of this judgment immediately.Appeal Partly allowed. *******