K.S. Sidhu, J.
1. Shri Narain and Lachh-man, sons of Shiv Prashad, residents of village Mahurpura, P. S. Bandikui, were tried by the learned Additional Sessions Judge, Dausa on the charge of murder of Bakshi Gujjar, a co-villager, punishable under Section 302, Indian Penal Code and of causing hurt to Mulchand and Ram Chand, residents of the same village, punishable under Section 323, Indian Penal Code. By his order, dated December 1, 1975, the learned Judge convicted the two brothers of the charge of murder and sentenced each of them to imprisonment for life under Section 302, Indian Penal Code. They were acquitted, by implication, of the other charge under Section 323, Indian Penal Code.
2. The case of the prosecution which resulted in the conviction and sentence of Shri Narain and Lachhman, as aforementioned, is that on July 17, 1974, at about 8 or 8-30 A.M., a quarrel took place between the two accused on one side and their brother Ramchandra P. W. 8, on the other, and that the quarrel escalated into a fight involving exchange of club blows. It is alleged that Bakshi deceased arrived there and asked the accused to stop beating Ram Chandra. The accused resented this interference by Bakshi. They gave a lathi blow each on the head of Bakshi, thus felling him on the ground. Mul-chand, P. W. 1, who is brother of Bakshi deceased, went forward to help his fallen brother. Accused Shri Narain struck a lathi blow on Mulchand's left hand. The occurrence was witnessed by P. Ws. Nemi Chand alias Ram Chand, Moti and Raghubir. The P. I. R. was lodged by Mulchand P. W, on the same day at 11.40 A. M.
3. Relying, inter alia, on the testimony of P. Ws. Dr. Radhey Shyam, Mulchand, Nemi Chand and Birbal, the learned trial Judge came to the conclusion that Bakshi died on account of shock due to grievous head injuries involving fractures of the left and right parietal bones and also of the frontal bone and that these injuries were inflicted by Shri Narain and Lachhman accused with blunt weapons. The learned Judge found them guilty of the charge of murder because in his opinion, they had attacked Bakshi and caused grievous hurt to him, smashing his parietal and frontal bones into pieces in a premeditated manner, with the intention of causing such injuries as were most likely to cause death. Consequently, the learned Judge convicted and sentenced both the accused under Section 302, Indian Penal Code.
4. Both Shri Narain and Lachhman have jointly appealed.
5. It may be noted at the outset that though they were tried jointly, the appellants were charged separately under Section 302, Indian Penal Code meaning thereby that the head injuries inflicted by them, one by Shri Narain and the other by Lachhman, were severally fatal and that therefore they could be held individually liable for causing the murder of Bakshi deceased. The learned trial Judge has convicted each of them under Section 302, I.P.C. obviously on the footing that the separate blow inflicted by each was sufficient in the ordinary course of nature to cause death.
6. We have carefully gone through the post-mortem report, Ex. P/11, and the deposition in the trial of Dr. Radhey Shyam, who conducted the post-mortem and find that he has nowhere indicated that the two injuries on the head of the deceased were severally fatal. He has also not indicated the extent, if any, to which one injury contributed to the other in causing or accelerating the death of the victim. In the absence of proof by the prosecution as to which particular injury was fatal, it would not be safe to record conviction under Section 302, Indian Penal Code against any of the two accused. It may be added in this context that the two accused were charged separately under Section 302, Indian Penal Code and that the charges framed do not indicate that the accused had notice that they would be liable vicariously. It is true that in order to convict a person with the aid of Section 34, Indian Penal Code, it is not necessary to mention it or its exact words in the charge. The courts have, however, always insisted that in the event of omission to mention Section 34 or its exact words in the charge, the charge-sheet must nevertheless indicate that the accused had notice of this fact, thus obviating the possibility of any prejudice resulting in consequence of such omission. There is no such indication in the instant case. The conviction recorded against the accused under Section 302 I.P.C. cannot therefore be sustained even with the aid of Section 34 I.P.C.
7. It is abundantly proved in evidence that there were two grievous injuries found on the head of the deceased. Both were inflicted with a blunt weapon. One of these injuries was inflicted by Shri Narain who wielded a bamboo stave and the other by Lachhman who carried a two-pronged stick. P.Ws. Mulchand, Nemichand alias Ram Chand, Moti, Raghubir and Birbal have given an eye-witness account of the occurrence. According to them, Lachhman and Shri Narain had inflicted one blow each on the head of the deceased. Both the injuries were found by Dr. Radhey Shyam to be grievous in nature. He further stated that these in-juries were sufficient in the ordinary course of nature to cause death. He however did not explain if these injuries were individually sufficient in the ordinary course of nature to cause death. That being so, there is no alternative but to alter the conviction of the accused to Section 325 I.P.C. Each is guilty of causing grievous hurt with a blunt weapon and must be separately convicted and sentenced accordingly.
8. Reference may then be made to the plea raised on behalf of the accused that Bakshi deceased accompanied by Mulchand, Moti and Raghubir had inflicted lathi blows to the accused and that it was in the exercise of their right of private defence of body that the accused inflicted blows to the deceased. It is true that both the accused had sustained injuries in the course of this transaction. It would however be reasonable to believe that the said injuries were inflicted to them by their brother Ramchandra, P.W. 8. P.Ws. Mulchand, Moti, Raghubir, Birbal and Nemichand alias Ramchand have stated that to start with there was a fight between the accused on one side and their brother Ramchand P.W. 8 on the other resulting in injuries to both sides. That explains the injuries to the accused. Bakshi deceased had interceded to stop the accused from inflicting further bodily hurt to Ramchand P.W. 8. It was at that point of time that the accused stopped hitting Ramchand P.W. 8 and diverted their attention to Bakshi deceased inflicting grievous hurt on his head.
9. Ramchand P.W. 8 in whose defence Bakshi laid down his life is after all a brother of the accused. He turned hostile to the prosecution in the trial in an attempt to save his brothers from punishment for the crime they have committed. The defence cannot legitimately draw much help from his evidence.
10. We would accordingly allow this appeal to the extent indicated above and reduce the conviction of the appellants from Section 302 to Section 325 I.P.C. They are sentenced to rigorous imprisonment for four years each. They shall be taken into custody to serve out the remaining part of the sentence.