JUDGMENT CHANDRA BHUSHAN BAJPAI, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 06-02-1998 passed by the Additional Sessions Judge, Surajpur, the then District Surguja, M.P. (now C.G.) in Sessions Trial No. 88 of 1997 whereby and whereunder the learned Additional Sessions Judge after holding the appellants guilty for causing homicidal death not amounting to murder of Premsai, convicted the appellants under Section 304-Part I of the Indian Penal Code (in short the IPC) along with died appellant Jaylal for whom the appeal stands abated as per order dated 27-9-2004 and sentenced them to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 200/- in default of payment of fine, to further undergo rigorous imprisonment for 1 month, to each appellant. 2. Conviction is impugned on the ground that without there being any iota of evidence. Court below has convicted and sentenced the appellants aforesaid mentioned and thereby committed illegality. 3. As per case of the prosecution, name of deceased is Premsai. On 01-6-1996, at about 6.30 p.m., Devnarayan (PW-3) reached to Police Station Ramanujnagar and lodged the First Information Report (FIR) against the appellants including the appellant died during pendency of the appeal that at about 11.00 a.m., on account of previous enmity the appellants and other co-accused Jaylal assaulted the deceased by axe, stick and crowbar. On account of the injuries inflicted by the appellants, deceased Premsai became unconscious at the spot at village Rampur Dehai Para and when he was taken to the hospital, died on the same day. Police registered the First Information Report under crime No. 59 of 1996 under Section 302/34 of the IPC. Same time merg was also recorded at about 18.35 hours same day by Devnarayan (PW-3) which was registered as Ex.-P/IA. Police of Ramanujnagar reached to the place of incident. After giving inquest notice (Ex.-P/5), inquest was conducted on the dead body of Premsai vide Ex.-P/2. After the inquest, the dead body was sent for post-mortem vide memo Ex.-P/6. Doctor R.B. Prajapati (PW-8) conducted the autopsy on 02-6-1996 and noticed following injuries/symptoms:- (i) Lacerated wound 3 x ½ x ½ cms. over left thigh. (ii) A punctured wound 1 x 1 x 1 cm. over left forearm. (iii) Incised wound 6 x 1 x ½ cms. over head on occipital part. (iv) One contusion 8 x 3 cms. Doctor R.B. Prajapati (PW-8) conducted the autopsy on 02-6-1996 and noticed following injuries/symptoms:- (i) Lacerated wound 3 x ½ x ½ cms. over left thigh. (ii) A punctured wound 1 x 1 x 1 cm. over left forearm. (iii) Incised wound 6 x 1 x ½ cms. over head on occipital part. (iv) One contusion 8 x 3 cms. over left leg. (v) Lacerated wound 6 x 1 x 1 cms. backside of the head. Except one injury rest were caused by hard and blunt object, one injury was caused by hard and sharp object. As per opinion cause of death was shock due to haemorrhage caused by the injuries. It was also opined that at the time of autopsy, 36 hours had passed since death. He gave his report vide Ex.-P/22. Spot map was prepared vide Ex.-P/7. Blood stained soil and plain soil were seized from the spot vide Ex.-P/8. Memorandum of appellant Dhaneshwar (A-1) was recorded as Ex.-P/9. An axe was seized at the instance of appellant Dhaneshwar (A-1) vide Ex.-P/3. Appellant Mundal @ Kailash gave disclosure statement vide Ex.-P/11. A crowbar was seized at the instance of appellant Mundal @ Kailash vide Ex.-P/5. A lungi was seized from appellant Dhaneshwar (A-1) vide Ex.-P/12. A lungi was seized from died appellant Jailal vide Ex.-P/13. A sealed packet containing clothes of the deceased sent by the autopsy surgeon was duly seized vide Ex.-P/15. During the investigation, query was made whether by the weapons so seized- axe, stick and crowbar, the injuries found over body of the deceased may be caused vide Ex.-P/16, Ex.-P/17 and Ex.-P/18. Doctor R. B. Prajapati (PW-8) opined that the injuries caused over the body of Premsai may be caused by the weapons so sent for examination. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short the Code). 4. After completion of the investigation, charge-sheet was filed before the Judicial Magistrate First Class, Surajpur, who, in turn, committed the case to the Court of Sessions, Ambikapur, the learned Additional Sessions Judge received the case on transfer and conducted the trial. He charged the appellants and other co-accused Jailal under Section 302 of the IPC in alternate under Section 302/34 of the IPC. All the accused denied the charges and prayed for regular trial. 5. He charged the appellants and other co-accused Jailal under Section 302 of the IPC in alternate under Section 302/34 of the IPC. All the accused denied the charges and prayed for regular trial. 5. In order to prove the guilt of the appellant, prosecution examined as many as 8 witnesses. The accused were examined under Section 313 of the Code wherein they denied the circumstances appearing against them and pleaded innocence and false implication in crime in question. The accused also examined two defence witnesses; Santosh Lai Gupta (DW-1) regarding the execution of affidavit by Gontu (PW-4) and also Dalip (DW-2) who deposed that he saw deceased Premsai and Gontu assaulting Baldev i.e. father of appellant Dhaneshwar (A-1). 6. After providing opportunity of hearing to the parties, the learned Additional Sessions Judge convicted all the three accused under lesser Section i.e. Section 304-Part I of the IPC and sentenced them as aforementioned. 7. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellants vehemently argued that as per the evidence adduced by the prosecution only offence under Section 326 of the IPC is made out against the appellants as the deceased not died at the spot rather he died when he was taken for treatment; injuries over vital part i.e. head was simple in nature, by a fracture there was no possibility of death; tibia fibula so fractured was below the injury no. (iii), there was no grievous injury in the vital part; looking to the injuries, conviction under Section 304- Part I of the IPC is not made out; on account of previous enmity as the deceased is maternal uncle of appellant Dhaneshwar (A-1), as per the allegations, the sister of deceased-Bairagobai was left by father of appellant Dhaneshwar (A-1)-Baldev and on account of litigation for the maintenance this incident happened; there was no intention for causing death, no knowledge that it was likely to cause death, thus, the appellants may be held guilty under Section 326 of the IPC. He further submitted that the incident is about 18 years old; appellants are not having any criminal past; appellant Dhaneshwar (A-1) served the part of sentence 2 years 4 months and 9 days and appellant Mundal @ Kailash served the part of sentence 2 years 3 months 27 days, these periods of part of sentence are sufficient for their act; they may be given an opportunity by convicting them under Section 326 of the IPC and sentencing them for the period already undergone by them. 9. Per contra, learned counsel for the State/respondent supported the judgment passed by the trial Court and opposed the argument advanced on behalf of the appellants and submitted that the trial Court held the appellants guilty for their act under Section 304-Part I of the IPC because they were armed with dangerous weapons i.e. axe, crowbar and stick. The incised wound, punctured wound and also other lacerated wounds noticed on the body of the deceased, goes to show that both these appellants inflicted blows by axe and by crowbar. The doctor opined the cause of death was shock due to haemorrhage caused by the injuries and thereby the doctor opined that the death is homicidal and looking to the act that the appellants assaulted with a plan when the deceased reached to their locality on account of previous enmity he was assaulted. Though the present case comes under the Explanation 4 as it is committed without premeditation, in a sudden fight, in a heat of passion, upon sudden quarrel, without the offenders having taken undue advantage or acted in a cruel or unusual manner, most of the injuries inflicted not over the vital part though the deceased died of the haemorrhage followed by shock; the trial Court rightly held that there was intention also the knowledge that it was likely to cause death, they were having intention as they assaulted with deadly weapons, the trial Court rightly held them responsible and convicted them under Section 304-Part I of the IPC for which no interference is required, hence, the appeal may be dismissed. 10. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced by both the parties. 11. 10. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced by both the parties. 11. As per the medical evidence and statement of Doctor R.B. Prajapati (PW-8), 6 injuries were caused, one injury was incised, another injury was punctured wound and all other rest injuries were lacerated wounds followed by fracture of tibia fibula which was under the incised wound. The doctor opined that the cause of death was shock due to excessive bleeding. The deceased died on the same day rather to say within from a few hours. If the injuries like incised wound at left feet measuring 8 x 3 cms. as came in the evidence of Doctor R.B. Prajapati (PW-8), goes to show that if any main artery or vein must have cut, then only there should be excessive bleeding followed by shock. As per the doctors statement, para 6 of his examination-in-chief, in normal condition injuries were sufficient to cause death. Though the injury on occipital region was only ½ cm. in deep and it was simple but so far as the entire opinion of the doctor is concerned, there is no challenge in the cross-examination that the patient may not die on account of such injuries. I am of considered view that the death of the deceased occurred due to cumulative effect of all the injuries, haemorrhage, excessive bleeding and shock resulted thereby. With the above, death of Premsai was culpable homicide not amounting to murder. The trial Court rightly held that the act comes under Section 299 of the IPC under Explanation 4 of Section 300 of the IPC. 12. So far as the act of the appellants are concerned, they were armed with deadly weapons i.e. axe and crowbar; by these weapons injuries were noticed on the body and during the incident they assaulted the deceased. Use of weapons and the presence of the injuries from the said weapons and the fact that the incident happened when the deceased went to the locality of the appellants is held to be established by the prosecution. Use of weapons and the presence of the injuries from the said weapons and the fact that the incident happened when the deceased went to the locality of the appellants is held to be established by the prosecution. Appellant Dhaneshwar (A-1) is nephew of the deceased, existence of maintenance dispute was present there between the mother of appellant Dhaneshwar (A-1)- Bairagobai and the father of appellant Dhaneshwar (A-1)-Balde; the deceased was real maternal uncle of appellant Dhaneshwar (A-1); with the background of above dispute regarding maintenance and not keeping Bairagobai by Baldev, when the appellants saw Premsai in front of their locality, they assaulted and the injures received by the deceased and he succumb to those injuries. This is not a case where only grievous hurt was caused by dangerous weapons or means but this is more than grievous hurt and by the effect of the injuries due to excessive haemorrhage the deceased died within a few hours while he was taken to the hospital. The injuries were sufficient to cause the death as deposed by Doctor R.B. Prajapati (PW-8) in his examination-in-chief at para 6; the offence does not come under Section 326 of the IPC rather it comes under the scope of Section 304 of the IPC. Now, the question is whether the present case comes under Section 304-Part I of the IPC or Section 304-Part II of the IPC. Now, the question is whether the present case comes under Section 304-Part I of the IPC or Section 304-Part II of the IPC. The appellants were assaulting by dangerous weapons goes to show that they had knowledge that this act may likely to cause death but the intention of the appellants of causing death is not proved as expected because they were armed with axe and crowbar, the deceased was not having any arm, the deceased was in the locality of the appellants, they were in the commanding position to inflict as many as injuries they wished, but only one incised wound and only one punctured wound were caused by both of the appellants, rest other injuries were lacerated wounds for which it was alleged that the dead appellant inflicted these injuries by stick, but the appeal is abated against that appellant and we may not discuss and assess the role of the dead appellant as the appeal was abated against him, but so far as the present appellants are concerned, they caused injuries with knowledge but they were not having any intention to cause death or to cause such bodily injury as was likely to cause death; the punctured wound is inflicted at the left forearm and the incised wound is inflicted over the head on occipital part, though the incised wound was only ½ cm. deep; I a.m. of the view that the case of the appellants falls under the category of Section 304-Part II of the IPC as it was an act without intention to teach some lesson to the deceased but on account of heavy haemorrhage followed by the shock the deceased died. Hence, as per considered view of this Court, the judgment of conviction and order of sentence passed against the appellants requires modification. 13. Consequently, the appeal is partly allowed. Instead of Section 304-Part I of the IPC, the appellants are convicted under Section 304-Part II of the IPC and each of them are sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 200/- in default thereof, they have to further undergo rigorous imprisonment for 1 month. They shall be entitled to set off their period of detention during trial (as ordered by the trial Court in its judgment at para 23) and during hearing of the appeal. 14. The appellants are on bail. 200/- in default thereof, they have to further undergo rigorous imprisonment for 1 month. They shall be entitled to set off their period of detention during trial (as ordered by the trial Court in its judgment at para 23) and during hearing of the appeal. 14. The appellants are on bail. They are directed to surrender immediately before the trial Court for serving the remainder of the sentence awarded to them by this Court. The trial Court is also directed to take appropriate steps for serving the remainder of the sentence imposed on them by this Court. Appeal partly allowed.