21. In view of the aforesaid facts and circumstances of the case, it cannot be said that accused Balram and Raghunath had a common intention to kill the deceased Ramsingh. If they had no intention to kill the deceased, their common intention cannot be presumed for their offence of culpable homicide not amounting to murder. In the case of Sasi alias Chalil Sasi v. State of Kerala, (2000) 10 SCC 55 wherein the Hon’ble Apex Court has held that when the accused had no intention to kill the deceased and he gave a single blow on the head of the deceased, the case of the accused shall fall within the purview of Section 304 (Part-II) of IPC. The Hon’ble Apex court in the case of Bunnilal Chaudhary v. State of Bihar (2007) 1 SCC (Cri) 66 observed that if the doctor does not opine that the injuries found to the deceased were sufficient to cause his death in natural course of his life or no injury was such that the death was likely to be caused, in such case if accused was not intended to kill the victim then the offence shall fall within the purview of Section 304 (Part-II) of IPC.

22. Similarly in the case of Vineet Kumar Chauhan v. State of UP (2008 (1) CAER [SC] 109), the Hon’ble Apex Court has held that if there was no enmity between the parties and in a sudden quarrel fire was done and bullet hit the deceased on her chin then it cannot be said that the accused was intended to kill the deceased and the offence shall fall within the purview of culpable homicide not amounting to murder and it shall be punishable under Section 304(Part-II) of IPC.

23. In the present case if factual position of the case is considered then the aforesaid law laid down by the Hon’ble Apex Court is accepted. Hence, the accused Raghunath cannot be convicted of offence under Section 302 of IPC or any other lower offence of similar nature either directly or with the help of Section 34 IPC. Therefore, the trial Court has committed an error in convicting the appellant Raghunath for the offence under Section 302 read with Section 34 of IPC.

24. So far as offence under Section 324 of IPC is concerned, it would be apparent that the witness Bablu was found injured. According to the eye-witnesses, the appellant Raghunath gave a blow of axe on the head of Bablu. Dr. B.P.Sharma (PW/9) while recording the MLC Ex.P/7 found that Bablu sustained a incised wound, therefore, the trial Court has not committed any error in convicting the accused Raghunath for the offence under Section 324of IPC.

25. So far as the sentence is concerned, the appellant Raghunath who is to be convicted for the offence under Section 324 IPC, has remained in custody for a longer period and he has already suffered the sentence imposed by the trial Court for the offence under Section 324 of IPC.

26. On the basis of aforesaid discussion, the appeal filed by the appellants can be partly allowed. The appeal of the appellant Raghunath is hereby allowed to the extent that his conviction under Section 302 read with Section 34 of IPC is set aside and he is acquitted from the aforesaid charge. The appellant Raghunath would be entitled to get the fine amount back, if he had deposited for the said offence before the trial Court. However, he is convicted for the offence under Section 324 of IPC and sentence him to the imprisonment of 6 months which has already been suffered by him during the trial and appeal. He is on bail. His bail bonds shall stand discharge.

27. The appeal filed by the appellant Balram is hereby partly allowed and his conviction as well as sentence for the offence under Section 302 read with Section 34 of IPC is hereby altered to the offence under Section 304 Part-2 of IPC and he is sentenced to the period of five years’ imprisonment with fine of Rs.5000/-. The custody period of appellant No.2 Balram shall be adjusted towards the sentence imposed by the trial Court.

28. The appellant No.2 Balram is on bail. His bail bonds are now cancelled. He is directed to surrender before the trial Court without any delay so that he may be sent to jail for execution of remaining part of his jail sentence.

29. A copy of the judgment be also sent to the trial Court along with the record for information and to prepare the supersession warrant of appellant No.2 Balram and to get the sentence executed by him.

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