The central legal point established in the judgment is the application of legal provisions such as Section 304 Part II of IPC and Section 34 of IPC to determine the nature of the offense and the intention of the accused.

A.K. Awasthy, J.

1. Appellants/accused have filed the appeal under Section 374 of the Code of Criminal Procedure against the judgment and order dated 18-1-1996 delivered in Sessions Trial No. 134/1994 by learned First Additional Sessions Judge, Khargone (West Nimar) of their conviction and sentence under Section 302 read with Section 34, IPC of the rigorous imprisonment of life and fine of Rs. 5,000.00 and in default of fine, further simple imprisonment of 1 year and also under Section 323 read with Section 34, IPC fine of Rs. 200.00 and in default of fine, further simple imprisonment of one month and both the sentences were directed to run concurrently.

2. The prosecution case is that on 8-2-1994 at about 7.00 p.m. in Village Mamdiya in the feast at the house of Kalu, the villagers from the nearby villages were present and when accused Bhawla demanded more mutton, then on account of the refusal to provide him more mutton, he left the party. That after some time accused Bhawla @ Bhavsingh alongwith his brothers co-accused Kashya @ Kashiram, Dhanna @ Dhannalal and Bhika reached there and accused Bhawla gave one stick blow on the head of deceased Munna, aged about 30 years. That Kalu (P.W. 1) and Jiru (P.W. 4) made an attempt to intervene but accused Kashya, Dhanna and Bhika threw the stones and injured them. First Information Report (Ex. P-1) was lodged on 9-2-1994 in the night at about 11.45 p.m. in the Police Station, Gogawa by Kalu (P.W. 1).

3. After recording the FIR (Ex. P-1), Sub Inspector Tersingh (P.W. 7) went to the village and Panchnama (Ex. P-2) of the dead body was prepared by him and he has also drawn the spot map (Ex. P-6) and seized plain and the blood stained soil from the place of incident vide seizure memo (Ex. P-3). Dr. Naginchandra Jain (P.W. 8) has examined Kalu (P.W. 1) and Jiru (P.W. 4) on 10-2-1994 and he has found one simple lacerated wound on the occipital region of Kalu and one abrasion on the right finger of Jiru vide his report respectively Exs. P-9 and P-10. That the dead body was sent for autopsy for Primary Health Centre, Gogawa. Dr. Naginchandra Jain (P.W. 8) has conducted the autopsy and he has reported in his report (Ex. P-11) that there was a lacerated wound on the upper side of the skull of the deceased measuring 2-3/4" x 1-1/4" x deep to the muscles and it has caused the fracture of the skull. Dr. Naginchandra Jain (P.W. 8) has opined in his report (Ex. P-11) that the injury was sufficient in ordinary course of nature to cause the death. Sub Inspector Tersingh (P.W. 7) after the usual investigation has filed the charge-sheet against the accused persons under Sections 302 and 323 read with Section 34, IPC.

4. The learned Trial Court after framing the charges under Section 302 read with Section 34, IPC and under Section 323 read with Section 34, IPC has examined Kalu (P.W. 1), Radha Kishan (P.W. 2), Darbar (P.W. 3), Jiru (P.W. 4), Kailash (P.W. 5), Daulatram (P.W. 6), Sub Inspector Tersingh (P.W. 7) and Dr. Naginchandra Jain (P.W. 8). The accused have denied the statements of the prosecution witnesses and pleaded false implication due to enmity. This learned Trial Court has held that the prosecution has succeeded in bringing home the guilt against the accused persons on the basis of the statements of eye- witnesses Kalu (P.W. 1), Radha Kishan (P.W. 2), Darbar (P.W. 3) and Jiru (P.W. 4) and the accused were convicted and sentenced as stated above.

5. The appellants have assailed the conviction on the ground that the learned Trial Court has erred in convicting the accused for the offence under Section 302 read with Section 34, IPC and it is alleged that offence against accused Kashya, Dhanna and Bhika was not made out either under Section 302 read with Section 34, IPC or under Section 304 read with Section 34, IPC. That the sentence is excessive and disproportionate to the offence committed by the accused persons.

6. Dr. Naginchandra Jain (P.W. 8) has stated that on 10-2-1994 at about 8.00 a.