JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal preferred by the appellants herein (three in number) under Section 374(2) of the Cr.P.C. is directed against the judgment of conviction recorded for offence punishable under Section 302 read with Section 34 of the IPC and sentence awarded to them under Section 302 read with Section 34 of the IPC i.e. imprisonment for life and fine of Rs. 500/- each, in default of payment of fine, to further undergo rigorous imprisonment for two months by the Additional Sessions Judge, Kondagaon, District Kondagaon by the impugned judgment dated 26-10-2016 in Sessions Trial No. 68 of 2013. 2. The facts giving rise to this appeal are that Smt. Sugantin Bai, sister of appellants herein died on 24-5-2013 at about 10.00 am at village Titna Sadak Para, P.S. Makidi, District Kondagaon. Further case of the prosecution is that the appellants herein after having received the information of death of their sister namely Sugantin Bai reached to the house of Sugantin Bai armed with lathis and assaulted Vishwanath Batti (deceased) with hands and fists and also by lathis as a result of which he succumbed to the injuries and died, thereby they committed murder of Vishwanath Batti and thereafter the offence under Section 302 read with Section 34 of IPC was registered against them. 3. Further case of the prosecution is that on 24-5-2013 at Police Station Makidi, PW-1 Premlal Batti, father of the deceased lodged merg intimation vide Ex.P/17 and thereafter FIR (Ex.P/18) was lodged on the same day by PW-1 Premlal Batti on the basis of which offence under Section 302 read with Section 34 of IPC was registered against the appellants herein and thereafter inquest vide Ex. P/7 was conducted on the body of the deceased and dead body of the deceased was sent for postmortem on the same day and postmortem was conducted by PW-8 Dr. Rahul Kumr Sahu and postmortem report was received vide Ex.P/15 wherein it has been stated that cause of death was syncope due to ante-mortem intracranial injury and mode of death was homicidal in nature. Rahul Kumr Sahu and postmortem report was received vide Ex.P/15 wherein it has been stated that cause of death was syncope due to ante-mortem intracranial injury and mode of death was homicidal in nature. Thereafter, the statements of PW-1 Premlal Batti, PW-2 Shri Dharam Singh and PW-3 Shri Ashulal were recorded and seizure of Lathis were made vide Ex.P/2, Ex.P/5 and Ex.P/8 and same were sent for chemical examination to FSL and a report thereof was received vide Ex.P/25 in which blood stains were found on the Bambo Sticks and thereafter, statements of the witnesses were recorded under Section 161 of Cr.P.C. 4. After completion of investigation, charge-sheet was fled before the Judicial Magistrate First Class, Kondagaon against the appellants/accused and it was committed to the trial Court/Court of Session for trial. The appellants herein abjured the guilt and entered into defence. 5. In order to bring home the above-stated offence, the prosecution examined as many as nine witnesses and exhibited 25 documents, whereas one document Ex.D/1 was produced by defence. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 26-10-2016 based on testimony of PW-1, Premlal Batti, PW-4 Smt. Ramati and PW-6 Budhram, convicted the appellants for offence under Section 302 read with Section 34 of the IPC and sentenced them as aforementioned, against which, this criminal appeal has been preferred by the appellants/accused (three in number). 7. Mr. Shobhit Kostha, learned counsel for the appellants/accused, would submit that none of the prosecution witnesses has come forward to depose that which of the accused person out of three accused persons caused one fatal injury to the deceased Vishwanath Batti by which he died and as such in absence of evidence as to who caused fatal injury to the deceased, the appellants can only be convicted for offence punishable under Section 325 or 326 of IPC. He would further submit that since the appellants are in jail for more than eight years, therefore, conviction under Section 302 read with Section 34 of IPC be set aside and it be altered into Section 325 or 326 of IPC. Therefore, sentence to the period already undergone be awarded and they be released by allowing the appeal in part. He would further submit that since the appellants are in jail for more than eight years, therefore, conviction under Section 302 read with Section 34 of IPC be set aside and it be altered into Section 325 or 326 of IPC. Therefore, sentence to the period already undergone be awarded and they be released by allowing the appeal in part. Learned counsel for the appellants in support of his submissions has relied upon the judgments in the matter of Govinda and Others vs. State of Madhya Pradesh, 2006 (2) CGLJ 10 (MP), Ramlal vs. Delhi Administration, (1973) 3 SCC 466 , Ninaji Raoji Boudha and Another vs. State of Maharashtra, (1976) 2 SCC 117 , Rewa Ram vs. Teja Ram and Others, 1998 SCC (Cri.) 1350, Radhe Shyam vs. State of Uttar Pradesh, (1999) SCC (Cri.) 72, Tharu and Others vs. State of Madhya Pradesh, AIR 1991 SC 517 and Sarman and Others vs. State of Madhya Pradesh, AIR 1993 SC 400 . 8. Per contra, Mr. Deveshchandra Verma, learned Government Advocate for the respondent/State, while opposing the submissions made by learned counsel for the appellant, would submit that the court below has rightly convicted the appellants under Section 302 read with Section 34 of the IPC on the basis of evidence available on record and would submit that the appellants came to the house of the deceased Vishwanath Batti armed with Bamboo Sticks and assaulted the deceased and thereby committed his murder as such, appeal deserves to be dismissed. 9. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 10. The first question is as to whether the death of deceased Vishwanath Batti was homicidal in nature. The fact of homicidal death of deceased has not been disputed by learned counsel for the appellants. Even otherwise, on the basis of medical opinion of PW-8 Rahul Kumar Sahu and on the basis of postmortem report (Ex.P/15), the trial court has rightly held that the death of deceased was homicidal in nature, the same is hereby affirmed and it is held that the death of deceased Vishwanatgh Batti was homicidal in nature. 11. Even otherwise, on the basis of medical opinion of PW-8 Rahul Kumar Sahu and on the basis of postmortem report (Ex.P/15), the trial court has rightly held that the death of deceased was homicidal in nature, the same is hereby affirmed and it is held that the death of deceased Vishwanatgh Batti was homicidal in nature. 11. Now the next submission of learned counsel for the appellants is that the conviction for offence under Section 302 of IPC deserves to be converted into offence under Section 325 of IPC as there is no evidence on record to show that which of the appellants herein has caused one fatal injury to the deceased as according to the medical evidence and postmortem report (Ex.P/15) only one fatal injury was caused to the deceased, it would be appropriate to notice the postmortem report (Ex. P15) which is as under: “At the time of postmortem dead body of Vishwanath Watti S/o Premlal Watti lying on supine position wearing while dhoti, dirty blue (Kai) colour T-shirt. Rigor mortis appearing, eyes and mouth semi open, facial matter passed. Injuries: 1. In occipital region transverse lacerated wound of size 4 cm x 2 cm x bone deep and clotted blood present. 2. In right arm transverse contusion of size 4 cm x 2 cm present. 3. In left elbow transverse lacerated wound of size 4 cm x 1 cm x bone deep present. 4. Below the right clavicle bone transverse contusion of size 7 cm x 2 cm. 5. Multiple contusion in back side of body present. 6. At right knee joint lacerated wound of size 2 cm x 1 cm x bone deep present. 7. At left thigh oblique lacerated wound of size 3 cm x 1 cm x 1 cm present. And multiple abrasions present on various parts of the body. No any injury present in genital region. Duration of dearth - within 12 hours. The doctor who conducted postmortem on the body of the deceased opined that due to ante-mortem ultra-cranial injury victim undergone in syncope which leads to death.” 12. Medical witness PW-8 Dr. Rahul Kumar Sahu who examined the deceased and conducted the postmortem of deceased Vishwanath Batti has stated in Para 4 that the cause of death was syncope and excessive bleeding on account of head injury. Perusal of medical report (Ex.P/15) and the statement of medical witness by Dr. Medical witness PW-8 Dr. Rahul Kumar Sahu who examined the deceased and conducted the postmortem of deceased Vishwanath Batti has stated in Para 4 that the cause of death was syncope and excessive bleeding on account of head injury. Perusal of medical report (Ex.P/15) and the statement of medical witness by Dr. Rahul Kumar Sahu (Ex.P/8) would show that the deceased suffered head injury on occipital region 4 cm x 2 cm x bone deep, blood clot was present and according to Dr. Rahul Kumar Sahuy (PW-8), deceased died on account of this injury which he suffered on head and due to excessive bleeding. 13. According to the prosecution, three eye-witnesses have been examined on behalf of the prosecution. PW-1 Premlal Batti, father of the deceased has deposed in Para-1 of his statement that the appellants came to the house of the deceased and assaulted him by bamboo sticks as a result of which he suffered injuries and died whereas in cross examination he has stated that he has gone for grazing the cattle and when he came back, he noticed unconscious body of his son and as such he has refuted his presence at the time of incident and has not witnessed the incident. 14. PW-4 Smt. Rajwati, wife of Budhuram (PW-6) has stated in Para-1 of her examination-in-chief that the appellants came to the house of the deceased Vishwandh Watti and assaulted him, but she has not stated that out of three accused appellants who had caused one head injury to the deceased by which deceased injured and died. She has further stated that all the three accused persons have assaulted the deceased. Similarly, PW-6 Budhuram is also an eye-witness who has stated in Para 1 of his examination-in-chief that the appellants assaulted the deceased by bamboo sticks, but he has not clarified which of the accused/appellant has inflicted one fatal injury to the deceased by which he has died. In Para 3 he has clearly stated that there were 10-15 persons present at the place of occurrence and the appellants came to the house of the deceased and he has not seen which of the accused persons has caused one fatal injury to the deceased by which he died. 15. In Para 3 he has clearly stated that there were 10-15 persons present at the place of occurrence and the appellants came to the house of the deceased and he has not seen which of the accused persons has caused one fatal injury to the deceased by which he died. 15. In view of the aforesaid ocular and medical evidence available on record, now the question would be whether the appellants can be convicted for offence punishable under Section 302 read with Section 34 of IPC. In Sarman (supra), their Lordships of the Supreme Court held as under: “5. Now coming to the nature of the, offence it is true that the doctor found a number of injuries. However, it must be noted that even according to the prosecution all the appellants were only armed with lathies and were charged for offence punishable Under Section 147, I.P.C. The doctor, PW-19 who conducted post mortem noticed 17 Injuries. Out of them injuries Nos. 1, 3, 10, 11 and 14weredescribed as incise wounds. Though they resulted in bleeding but no other damage was noticed. It is only injury No. 15 which resulted in a depressed fracture of parietal bone and ultimately proved in membrane puncture. Though the doctor in a general way stated cause of death was due to multiple injuries but he has specifically stated that on injury No. 15 he noticed a depressed fracture of parietal bone which individually was sufficient to cause death of the deceased. In these circumstances question that arises is whether all the other accused also responsible for the death of the deceased, the prosecution has not explained as to how the deceased received incise wounds though they are in simple. The prosecution case in general is that all of them were found with lathies. Nobody has stated that which of them caused the injury No. 15 which unfortunately resulted in the death of the deceased. If anyone of the appellants had exceeded the common object and acted on his own, it would be his individual act. In this case unfortunately no witness has come forward as to which of the accused has caused which injury. In these circumstances we find it difficult to award punishment under Section 302/149, I.P.C.” 16. Similarly, in Rewa Ram vs. Teja Ram and Others, AIR 1998 SC 2883 Supreme Court has held as under: “3. In this case unfortunately no witness has come forward as to which of the accused has caused which injury. In these circumstances we find it difficult to award punishment under Section 302/149, I.P.C.” 16. Similarly, in Rewa Ram vs. Teja Ram and Others, AIR 1998 SC 2883 Supreme Court has held as under: “3. We have also gone through the evidence of PW-3 and PW-4. From their evidence it is not possible to say which fatal injury was caused by which accused. The two witnesses have specifically referred to only about 8 to 10 injuries whereas on the person of Ram Bharose as many as 51 injuries were found. As it was not possible to hold who had caused the fatal injury to the deceased, the High Court has rightly convicted them under Section 326 of IPC.” 17. Similarly, in Radhe Shyam (supra) the Supreme Court has held that “since there is no evidence that which appellant had given the fatal blow or any blow which was likely to cause death, conviction should be under Section 326 of IPC.” 18. In Ram Lal (supra), the Supreme Court has held that since the evidence clearly discloses that two lathi blows had been given on the head of the deceased and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to the accused/appellant. Their Lordships in Para 8 of the said judgment has held as under: “8. No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, the appellant's conviction under Section 302 I.P.C. was plainly incorrect He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325 r/w Section 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts. Therefore, we set aside the conviction under Section 302 I.P.C. and convict the appellant under Section 325 r/w 34 and sentence him to 5 years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. We do not interfere with the rest of the order passed against him by the High Court.” 19. Therefore, we set aside the conviction under Section 302 I.P.C. and convict the appellant under Section 325 r/w 34 and sentence him to 5 years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. We do not interfere with the rest of the order passed against him by the High Court.” 19. From the statements of PW-1 Premlal Batti, PW-4 Smt. Rajmati and PW-6 Budhuram, it is quite vivid that the present appellants came to the house of the deceased armed with lathis/bamboo sticks on account of death of their sister namely Smt. Sugantin Bai and there was a meeting convened between the appellants and other family members with the deceased and others and in that meeting some quarrel took place between them and in presence of 10 to 15 persons, one fatal blow on the head of the deceased came to be made. It is not known out of three appellants who caused fatal injury No. 1 (in occipital region transverse lacerated wound of size 4 cm x 2 cm x bone deep and clotted blood present) by which deceased suffered excessive bleeding and died. It has not come that there was any pre-meditation or any previous enmity between the two families and there is no specific evidence on record as to who caused one fatal injury to the deceased by which he died. As such we are unable to maintain conviction of the appellants herein for offence punishable under Section 302 read with Section 34 of IPC 20. Accordingly, conviction of the appellants under Section 302 read with Section 34 of the IPC is hereby set-aside and instead thereof, they are convicted for offence punishable under Section 326 read with Section 34 of IPC. Since the appellants are in jail from 24-5-2013 i.e. eight years, eight months and 16 days as of now, we award the sentence to the period already undergone by them. The appellants are in jail, they be released forthwith, if not required in any other case. 21. The criminal appeal is allowed in part to the extent indicated herein-above.