When the prosecution has failed to prove the individual injury by the accused persons, and one of the injuries on the head by sharp weapon is simple, then the accused persons cannot be held guilty of the offence under section 302 IPC simpliciter.

1. 1. Appellant Balkhandi, Subhan and Mukarab were tried for the offences under sections 302, 302/149. 307, 307/149, 324/149, 325 rid 323 read with s. 149 WC along with Sahab Khan, Mst. Gafoondi, Mst. Saeedan and Mst. Mohamdi. The appellants were also tried for the offence under s. 148 IPC by the Additional Sessions Judge, Alwar, who by his Judgment dated 26-2-1974 acquitted Sahab Khan, Mst. Gafoondi, Mst. Saeedan and Mst. Mohamdi of all the offences for which they were charged with. He, however, convicted the appellants Balkhandi and Mukarab of the offence under s. 302 IPC simpliciter. Both the accused persons were also convicted under s. 326 IPC. Accused Subhan was convicted for the offence under s. 324 IPC. Accused persons Balkandi and Mukarab were sentenced to imprisonment for life under s. 302 IPC and under s. 326 IPC each of them were sentenced to undergo 4 years' rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo rigorous imprisonment for 3 months. The sentences were ordered to run concurrently. The appellant Subhan was sentenced to undergo one year's rigorous imprisonment under s. 324 TPC.

2. We may state few relevant facts of the prosecution case. There was a dispute between the parties over the agricultural land bearing Khasra No. 39 situated in village Palkheda. The land was sold by Mst. Mohtabi widown of Fateh Khan to Dallu. The accused-persons Balkhandi, Mukarab arid Subhan are the brothers of Fateh Khan, They claimed share in the agriculture land. Revenue litigation was pending between Dallu and the accused-persons. A revenue suit was instituted by Dallu against Balkhandi for permanent injunction, in which, temporary injunction was issued in his favour but the same was vacated by the Assistant Collector on 24-9-1965 vide Ex. D 20. An appeal was preferred by the plaintiff Dallu before the Revenue Appellate Authority, which was allowed on 3.9-1971 vide Ex. P 22. Balkhandi had filed a revision petition against the order of the Revenue Appellate Authority, in which, operation of the order dated 3-9-1971 was stayed vide Ex. D 21. The occurrence in this case took place on 9-11-1972 at 7.30 A.M. it is alleged that the appellants armed with Pharsis and the other co-accused persons armed with other weapons came to the house of Nannoo, which adjoins their house and opened an attack on Nannoo and other members of his family. In the incident, Nannoo, Badle, Ramjilal, Somoti, Mst. Batool and Mst. Phooli were injured. Ramjilal went to the police station, Govindgarh and lodged the report at 9 A.M. The police station was at a distance of 2 miles from the place of occurrence. A case under s. 326/34 IPC was registered by the S.H.O. Jagdish Pd. (PW 16). All the injured persons were brought to the Govindgarh Hospital, where injuries were medically examined by Dr. Surendra. The victim Badle succumbed to the injuries at the Hospital. Autopsy on the dead body was conducted and the case was converted into s. 302 IPC.

3. Usual investigation was done and, thereafter, the accused-persons were sent for trial. They were challaned in the court of Munisf Magistrate. Laxmangarh and the case was ultimately committed to the court of Sessions Judge, Alwar who transferred the case to the court of Addl. Sessions Judge, Alwar. The accused-persons were charged for the various offences. They however, pleaded not guilty to the charges and claimed to be tried.

4. The prosecution in all examined 17 witnesses. The accused persons denied the case in its entirety and no evidence was led in defence. The learned Addl. Sessions Judge acquitted the accused Sahab Khan on the ground that his name did not appear in the FIR. The lady accused persons viz., Mst. Gafoondi, Mst. Saeedan and Mst. Mohamdi were acquitted in view of the improvements made by the witnesses implicating them, as their names did not appear in the version given by the witnesses to the police under s 164 Cr. PC. As the number of accused per