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Before proceeding, further, it would be relevant to note that both the appellants, A-2 and A-3, along with five acquitted co-accused, A-1, A-4, A-5, A-6 and A-7, had been charged firstly, for criminal conspiracy to cause the murder of Prathab Chandran, punishable under Section 120 B read with Section 302 IPC and secondly, for the murder of Prathab Chandran, in furtherance of common intention to kill him punishable under Section 302 read with Section 34 IPC. A-1 was charged with abetment of murder, punishable under Section 302 read with Section 109 IPC; A-4 was charged for voluntarily causing hurt to PW-19 Munuswami, punishable under Section 320 IPC; A-2, A-3 and A-6 were charged for voluntarily causing hurt to PW-21, Gopalakrishnan, in furtherance of their common intention, punishable under Section 324 read with Section 34 IPC; A-5 and A-6 were charged for voluntarily causing hurt to PW-23, Gajendra Babu in furtherance of their common intention punishable under Section 324 read with Section 34 IPC, and A-6 was charged for voluntarily causing damage to the motor-cycle of Prathab Chandran deceased, punishable under Section 435 IPC. Except for recording the conviction of A-2 and A-3 for an offence under Section 302 read with Section 34 IPC, all other charges against the accused including A-2 and A-3 failed and since there has been no appeal against the acquittal of the co-accused of A-2 and A-3 or against A-2 and A-3 in respect of their acquittal for the other offences, we need not detain ourselves to reproduce the finding of the courts below in respect of various charges which had been framed against all the accused persons.

The story as unfolded by the prosecution at the trial, thus, goes to show that the occurrence on 15.6.1972 took place in three parts. The first part centres around the work table incident in Plant No.II when PW-22 was made to stand on the table and the deceased came there and was attacked by A-2 to A-7. PWs 21 and 23 had also received some beating during this part of the incident. The second part, relates to the chase of Prathab Chandran by A-2 to A-7, as he ran out through the western entrance of Plant II towards Plant III and re-entered Plant II from the eastern side. The third part of the occurrence concerns the happenings inside Plant II at the eastern entrance where the deceased Prathab Chandran was assaulted as a result whereof he had fallen down. All the three parts of the occurrence were sought to be established by the prosecution by producing more than six eye witnesses. Some of the eye witnesses deposed only about the first part of the occurrence while the other eye witness deposed about the second and the third part. The learned Sessions Judge after an appraisal of the evidence relied upon the testimony of PWs 19, 21, 22, 25, 26 and 27 to hold that A-2 and A-3 had assaulted deceased Prathab Chandran on account of their rivalry and that Prathab Chandran succumbed to the injuries caused by all the accused persons generally and A-2 and A-3 in particular. The learned Sessions Judge, however, disbelieved the theory of conspiracy as alleged by the prosecution and also discredited the `exhortations' allegedly uttered by A-1 on various occasions. He also disbelieved the utterances alleged to have been made by some of the accused during the first and second part of the occurrence and opined that various utterances had been attributed to the accused persons with a view to establish criminal conspiracy and that part of the prosecution evidence was only an embellishment. None of the accused were found guilty of the injuries alleged to have been caused by them to some of the prosecution witnesses. The testimony of the prosecution witnesses was, thus, not accepted in toto. Conviction was recorded only against A-2 and A-3 for an offence under Section 302/34 IPC.

Faced with this situation, learned counsel for the appellants argued that the conviction of both the appellants for an offence under Section 302/34 IPC was in the facts and circumstances of the case not sustainable. It was submitted that it could not be said with any amount of certainty that the blow given by A-2 or A-3 was by itself fatal or who out of the two caused the fatal blow as that the same was caused with the intention of causing death. It was submitted that though the deceased had suffered as may as 32 injuries, it was only one injury which had proved fatal according to the medical opinion and therefore the appellants could not be attributed with the intention of causing such bodily injury either which could cause the death and therefore their conviction for an offence under Section 302/34 IPC was not warranted. Learned counsel emphasised that the nature of injuries, taken as a whole could only clothe A-2 and A-3 with the intention to give beating to the deceased and not with any intention to kill him and they could be held guilty for an offence under Section 325/34 IPC only.

Since, the evidence of the prosecution unmistakably asserts that injuries had been caused to the deceased by all the six accused and some injuries had been caused exclusively by A-2 and A-3 alternatively, during the third part of the occurrence, it cannot be said with certainty that the intention of the accused was to cause death of Prathab Chandran deceased. This is more so because according to the medical evidence the deceased had died "due to shock and haemorrhage on account of multiple injuries", and according to the prosecution version all the seven accused had caused the injuries and not only A-2 and A-3. The accused party was armed according to the prosecution evidence, with iron rods and pipes and not with any other lethal weapon. If the accused had the intention to cause death of the deceased, they would have probably come armed with more formidable weapons. Again, looking to the nature of injuries, which except for injury No.22, were only simple and no other grievous injury was even caused, it appears to us that the accused possibly wanted to chastise the deceased for his trade union activities. The seat of the injuries as also their nature fortifies our view. According to the prosecution case itself, after Prathab Chandran had fallen down in the third part of the incident, none of the accused took advantage and caused any other injury to him. Most of the injuries, as already noticed, were on non-vital parts of the body. From the evidence and circumstances of the case, the appellants do not appear to have had the intention causing the death of the deceased or even causing such bodily injury as was likely to cause death. They can at the best be attributed with the knowledge that their act was likely to cause death or to cause such bodily injury as was likely to cause death, since a number of injuries had been caused and injury No.22 was sufficient in the ordinary course of nature to cause death. It is not as if A-2 and A-3 alone were armed with iron rods and pipes, with which the injuries were caused and their acquitted co-accused were unarmed. The acquitted co-accused, according to the prosecution evidence, were also armed with iron rods and pipes and as such it would be hazardous to guess as to which blow was caused by which accused. If common intention to cause death had been established in the case, prosecution would not have been required to prove which of the injuries was caused by which accused to sustain the conviction of the accused with the aid of Section 34 IPC, but in a case like this, where five of the co-accused stand acquitted and the common intention to cause death is not established beyond a reasonable doubt, the prosecution must establish the exact nature of the injuries caused to the deceased by the accused with a view to sustain the conviction of that accused for inflicting that particular injury. The evidence on the record does not lead to the conclusion that A-2 and A-3 alone caused all the injuries to the deceased with the intention to cause his death. The broad circumstances of the case impel us to hold that the common intention of A-2 and A-3 was not to cause the death of the victim and therefore neither of them can be held guilty of the offence under Section 302/34 IPC. Since, the deceased did succumb to the injuries, caused collectively, the appellants can only be held guilty of committing culpable homicide not amounting to murder. The act can be said to have been committed by the accused with the knowledge that it was likely to cause death or to cause such bodily injury as was likely to cause death of Prathab Chandran. Learned counsel for the appellants have not been able to persuade us to subscribe to the view that A-2 and A- 3 can only be clothed with the intention of causing grievous hurt, punishable under Section 325/34 IPC. The offence of the appellants would, in our opinion, squarely fall under Section 304 Part II IPC. Thus, setting aside the conviction of the appellants for an offence under Section 302/34 IPC, we alter their conviction and hold them both guilty of the offence under Section 304 Part II IPC.