JUDGMENT

Delay condoned. These two appeals arise out of the judgment of the Madhya Pradesh High Court. The appellants in both. these appeals were convicted by the Sessions Court under S. 302, IPC read with S. 34, IPC and their appeals were dismissed by the High Court. The prosecution case is as follows. Both the accused are brothers and are labourers. The deceased lived in the neighbourhood. P.W.1 is his widow, P.W. 3 is his daughter and P.W. 17 is his son. On 29-9-1977 about 6-7 p.m. a quarrel took place between the son of P.W. 1 and the deceased and the sons of appellant Jagpati over drawing water. Some people present there intervened and thereafter the appellant, Jagpati and his brother, Ram Krishna, the other appellant came back armed with Balli, a ringed stick and Danda, an ordinary stick and it is alleged that they assaulted the deceased, Balkrishna. He received two injuries on the head and some bruises on the other parts of the body. P.W. 1, wife, lodged a report at Chashai Outpost. The case was registered under S. 307, IPC. The injured was taken to the hospital. He died on the next day. An inquest was held and the dead body was sent for post-mortem. Dr. Mishra, P.W. 16 conducted the post-mortem. The accused were arrested and after completion of the investigation a challan was filed. The prosecution examined P.Ws. 1, 2, 3, 9 and 17 as eye-witnesses. Out of them P.Ws. 2 and 9, the independent witnesses, turned hostile. The remaining three witnesses. namely, wife, daughter and son of the deceased deposed that there was a quarrel in the evening between the appellant Jagpati and the deceased and some people present there intervened. Thereafter, Jagpati went back and returned along with his brother armed with Balli and Danda, respectively. Thereafter, they dealt the blows on the head. The main submission before the Courts below was that the remaining witnesses are all interested and their evidence could not be relied upon. The same submission is put forward before us also. We have gone through the record and we see no reason to disbelieve the evidence of P.Ws. 1, 3 and 17.

2. Before the Courts below it was also submitted that even if the prosecution case is to be accepted, even then an offence under S. 302, IPC read with S. 34, IPC is not made out. Coming to the nature of the offence, we find it difficult to hold that an offence under S. 302, IPC read with S. 34 is made out. There was no previous enmity. There was a scuffle and a sudden quarrel that preceded the occurrence. No doubt the witnesses say that 15-20 minutes later the accused Jagpati accompanied by his brother, Ram Krishna came to the scene of occurrence. It can be seen that because of the trivial incident the subsequent occurrence appears to have taken place.

3. Now coming to the occurrence as such, the two weapons are blunt weapons - one is a ringed stick and the other is an ordinary stick. The first Doctor, P.W. 5 who examined the deceased found an open injury 3" skin deep in the centre of the head and another swelling of about 3" in width on the forehead. The other injuries are all bruises on the chest and the arm. It is the injury on the head that resulted in the fracture of the skull causing the death. No doubt the Doctor had stated that the injury was sufficient in the ordinary course of nature to cause death. He opined that the external injury Nos. 2 and 3 could have resulted in the fracture. One is attributed to Jagpati and another is attributed to Ram Krishna. From the facts stated above it is clear that Ram Krishna had absolutely no immediate motive and even the appellant, Jagpati also because of the trivial quarrel that took place went and beat the deceased. Under these circumstances, we find it difficult to hold that these two accused intended to cause that particular injury which was sufficient in the ordinary course of nature to cause death. It can also be seen that each one of the accused is attributed one blow and the injury that is said to have bee