Chauhan, J. -- 1. In Sessions Trial No. 59/86, out of four persons i.e. Devi Singh. Balwantsingh, Narayan Singh and Kamal Singh, who were tried for the offences under Sections 302/34, 307/34, 325/34 and 325/34 of the Indian Penal Code, Devi Singh and Balwant Singh were acquitted and rest of the two persons, vide judgment and order dated 21.1.88 having been found guilty with the aid of Section 34 IPC for the offence punishable u/s 302 IPC were sentenced to imprisonment for life, who feeling aggrieved therefrom. approached this Court by means of this appeal. which is being decided finally.

2. The prosecution case in brief was that while Vikram Singh (PW 2) in the evening hours at about 4 p.m. was cutting Khakhra from his field in village Majodiya, P.S. Mandi Sehore, District Sehore, the accused Devi Singh came over there and abused him and asked him how he was cutting Khakhra, who told him as it was on the boundary of his field (Mend) whereat Devi Singh called the accused persons Kamal Singh, Narayan Singh and Balwant Singh who reached there equipped with Kalla (thick wooden rod) and lalhis. Accused Balwant Singh wasthaving Khalla whereas Kamal Singh and Narayan Singh were having Lathis. Devi Singh, after taking khalla from accused Balwant Singh, hit on the head of Vikram Singh and accused Kamal Singh hit him with lathi and Vikram Singh saved the attack with his axe in which process handle of axe was broken, accused Narayan Singh also hit him with lathi, which hit him on the left shoulder.

3. In the context of the facts of the present case, it is not necessary to dilate on the matter in detail on account of acquittal of Devi Singh, the main accused 10 whom role assigned was for causing injury which resulted in the death of Manohar Singh owing to which other facts only have a peripheral relevant.

4. The occurrence in question took place on 5.1.86 at about 4 p.m. in village Mahodiya P.S. Mandi Sehore, District Sehore, wherein Manohar Singh died. The FIR of the incident was lodged by PW 2 Vikram Singh at P.S. Mandi on 5.1.86 at 6.30 p.m. Post-mortem examination of the dead body was conducted by Dr. Ashok Sharma (PW 14) who found the following four ante-mortem injuries on the person of the deceased.

(1) Rail track pattern bruise obliquely vertical margin diffused over the right deltoid region anterior aspect size 7 x 2 c.m. Reddish purple in colour.

(2) Abrasion 2 c.m. above the right tibral tubrosity size 4 x 2 c.m. vertical.

(3) Abrasion two in number linear parallel to each other 0.5 c.m. apart transverse 4 c.m. above the lateral malluculous left side size 2 c.m. and 2 c.m. respectively;

(4) Surgically stitched wound over left parietal region triangular in shape pointing anteriorly. The superior limb is horizontal in saqqitact plance measuring 5 c.m. while lower limb measuring 4 c.m. with base 2 c.m. The flapping of the sking is peuit posteriorly and borders of the injury are aheaded and contused for a length of 0.5 c.m.

Out of these injuries, the injury No. (4) was the fatal which caused death.

5. The prosecution examined as many as 14 witnesses out of which Vikram Singh (PW 2), Madan Singh (PW 4), Gajraj Singh (PW 5) Ratan Singh (PW 6), Premnarayan (PW 7) and Dhankuynwar Bai (PW 9) were the persons who were the eye witnesses in regard to the fact of causing of the injuries to the deceased.

6. In defence, the accused persons denied their involvement and examined one witness Dr. D.N. Dwivedi (DW I) in regard to the injuries sustained by the accused persons i.e. Kamal Singh and Narayan Singh.

7. Heard the learned counsel for the appellants and the learned State counsel.

8. Learned counsel for the appellants submitted that in view of the acquittal of the main accused Devi Singh by the trial Court, the present appellants cannot be fastened with the liability of guilt for committing offence punishable under Section 302 IPC and having regard to the injuries other than the injury No. (4), the liability at the most, if any, cannot be fasten