G. Malaviya and N.B. Asthana, JJ. - (1.) This appeal has been directed against the judgement and order dated 17.11.1978 passed by III Additional Sessions Judge, Hamirpur in Sessions Trial No. 115 of 1977 convicting appellants, Badri Singh and Ram Naresh Singh for the offences punishable under Section 302, 148 and 307/149 Indian Penal Code, appellants Ram Bharosey Singh, Babu Singh, Brij Pal Singh, Jagroop Singh, Ram Anugrah Singh, Ram Roop and Ghanshyam for the offences punishable under Sections 148 and 307/149 Indian Penal Code and appellants Sughar Singh, Ram Singh, Rajwa, Kalloo and Lalloo Singh for the offences under Sections 147, 307/149 Indian Penal Code and sentencing them to undergo imprisonment of life for the offence under Section 302 Indian Penal Code to one year's R.I. under Section 147 Indian Penal Code to two years R.I. for the offence under Section 148 Indian Penal Code and to seven years R.I. under Sections 307/149 Indian Penal Code for having formed an unlawful assembly armed with spears, pharsa and lathi on 13.2.1977 at 5.30 P.M. in the passage near the fields of Raghuraj and Krishna Gopal in village Gahra, Police Station Kabrai, Hamirpur and in prosecution of the common object of such unlawful assembly for having caused injures to Krishna Gopal Shyam Bihari Lal, Natthu, Sheo Gopal, Ram Bali Mishra, Chhotey Lal and Kalyan Kumar Mishra with the intention to kill them. Krishna Gopal was killed in this incident, It was held to be an individual act of Badri Singh and Ram Naresh Singh for which they alone were punished. Appellants, Ram Bharosey Singh and Badri Singh are real brothers. Jag Roop, Ram Roop and Lalloo are the sons of appellant Ram Bharosey Singh. Brij Pal Singh, Ram Naresh Singh and Ram Anugrah Singh are real brothers and cousin of Ram Bharosey Singh. Appellant Babu Singh is the cousin of Ram Bharosey Singh. Appellants Sughar Singh and Ram Singh are of the family of Ram Bharosey Singh. Appellants kalloo, Rajwa and Ghanshyam are real brothers and said to belong to the party of the other appellants. It is not disputed that the relations between the appellants, the deceased and the injured were strained and inimical since a considerable long time. The litigation and proceedings under Section 107 and 116 Criminal Procedure Code had taken place between them prior to the incident in question. The prosecution story in brief is that on the date of incident, water was released at about noon in Pindari minor canal after about a week, P.W.8 Natthu, who was the servant of P.W.4 Kalyan Kumar had gone to the fields of Kalyan Kumar Mishra to irrigate them. Appellants Ram Naresh Singh and Ram Anugrah Singh came there, abused P.W.8 Natthu, stopped the water from going into the fields of P.W. 4 Kalyan Kumar and started irrigating their own fields. P.W.8 Natthu came to P.W.4 Kalyan Kumar and told him about it. P.W.4 Kalyan Kumar and deceased Krishna Gopal alongwith P.W.8 Natthu came to the fields, stopped the water from going to the fields, stopped the water from going to the fields of Ram Naresh Singh and Ram anugrah Singh and started irrigating their fields. After some time Chhotey Lal, Ram Bihari, P.W.5 Sheo Gopal, P.W.1 Shyam Bihari followed them apprehending that some untoward incident may not happen. Appellants Ram Naresh Singh and Ram Anugrah Singh felt annoyed and retorted that in case Kalyan Kumar and Krishna Gopal were brave persons, they should wait and that they would be returning after some time when they would see them. Thereafter they went towards village. Kalyan Kumar Mishra, Krishna Gopal, Natthu and Shyam Bihari and others stayed for some time at the fields and others stayed for some time at the fields and then started for their village. In the passage, near the fields of Raghuraj Singh and Krishna Gopal, they were surrounded by the appellants, who had come from the village. Ram Bharosey Singh, Badri Singh, Babu Singh, Brij Pal Singh and Jag Roop Singh were armed with spears. Ram Naresh Singh, Ram Anugrah, Ram Roop and Ghanshyam were armed with pharsa, while the remaining four appellants were armed with lathis. Ram Bharosey Singh asked them to kill these persons as they had prevented them from irrigating their fields whereupon all the appellants started inflicting injuries upon them with the weapons which they were carrying. These persons raised a hue and cry upon which P.W. 6 Brij Kishore, Chunna, Hem Raj and a number of other persons came there whereupon the appellants ran away. A cart was arranged in which all the injured were taken towards the Police Station. At the canal near Kabrai, Krishna Gopal breathed his last. Along with the dead body and the injured P.W.1 Shyam Bihari reached the Police Station where he lodged the written F.I.R. Ext. Ka-1 of this incident at 11.30 P.M. on the same day. On the basis of this report P.W.3 H.C. Bharat Lal Dwivedi prepared the check report Ext. Ka-6, made its entry Ext. Ka-7 in the General Diary and registered a case. The blood stained clothes Exts. Ka-1 to 9 of the injured were taken into possession by him and sealed in packets. Its memo Ext. Ka-2 was prepared. He then prepared letters for medical examination of the injured. Constable Jang Bahadur was sent alongwith P.W.1 Shyam Bihari, P.W.5 Sheo Gopal and P.W. 8 Natthu to Primary Health Centre, Kabrai for medical examination. Another letters was given to constable, Ali Ahmed for medical examination of Ram Bihari. Ghhotey Lal and P.W.4 Kalyan Kumar at Government Hospital, Mahoba. The investigation of the case was taken up by P.W.9, S.I. Lakhan Singh. On account of insufficiency of light he could not prepare the inquest report in the night. He, however recorded the statement of P.W.1 Shyam Bihari and P.W.8 Natthu and others at the Police Station. In the morning at 7 A.M. he prepared the inquest report and other required papers, sealed the dead body in a cloth and sent it for Post Mortem Examination through constable, Ram Bharosey Singh and Home Guard Chhedi Lal. He then reached the place of incident along with Home Guards. Gaya Prasad and Balbir, where he recorded the statement of P.W.6 Brij Kishore and others. He then inspected the place of incident and prepared the site plan Ext. Ka-20. He collected blood stained and simple earth from the scene of occurrence, sealed them separately and prepared the memo Ext. Ka-21 thereof. He searched for the appellants but they were not traceable. He, therefore, returned back to the Police Station and made its entry Ext. Ka-22 in the General Diary. In his statement he proved the blood stained and simple earth Exts. Ka-11 and 12 collected by him from the scene of occurrence. He also proved Exts. Ka-14 and 15 the Kurta and Pullover of the deceased. Thereafter, the investigation was taken up by P.W.10, S.I. Ram Khilawan Singh, who was posted there as Station Officer. On 15.2.1977 he reached the place of incident for arresting the accused but they were not available. He then came to the Government Hospital at Mahoba where he recorded the statements of P.W. 4 Kalyan Kumar, Chhotey Lal and Ram Bihari and returned to the police station where he was handed over the Post Mortem Report of deceased Krishna Gopal. The proceedings under Sections 82-83 Criminal Procedure Code were also initiated against the appellants on 24.2.1997. The appellants subsequently surrendered in the Court. After completing the investigation he submitted the charge sheet Ext. Ka-23 against the appellants on 17.4.1977. The appellants pleaded not guilty and gave out that they have been falsely implicated on account of enmity. They denied their involvement in the incident in question. The prosecution in support of its case examined ten witnesses in all. P.W. 1 Shyam Bihari, P.W.4 Kalyan Kumar, P.W.5 Shiv Gopal, P.W. 8 Natthu all injured and P.W. 6 Brij Kishore are the witnesses of fact. The injured witnesses have corroborated the prosecution story in toto. P.W. 6 Brij Kishore reached the place of incident when the appellants were inflicting injuries upon the injured. He named all the appellants stating that they were the persons who were inflicting injuries upon the injured and the deceased. P.W. 2 is Dr. S.R. Prabhakar, who was posted at Primary Health Centre, Kabrai on 14.2.1977. He examined P.W. 1 Shyam Bihari, P.W.5 Shiv Gopal and P.W. 8 Natthu at 2.40 A.M., 3.10 A.M. and 3.40 A.M. respectively and found the following injuries. P.W. 1 Shyam Bihari : 1. Incised wound 4.5 cm. x 1 cm., scalp deep on the back middle of the head 19 cm. above the right ear. It is longitudinally placed. 2. Incised wound 4.5 cm. x 1 cm., scalp deep on the back of the head 1 cm. away from the injury No. 1. it is longitudinally placed. 3. Incised wound 5 cm. x 1/2 cm., scalp deep on the left side of head, 6.5 cm. above the middle of left eye brow. 4. Lacerated wound 1/2 cm. x 1/2 cm. skin deep on the left scapular region 10 cm. below the top of left shoulder. All the injuries were simple. Injuries Nos. 1, 2 and 3 were caused by sharp edged weapon, while Injury No. 4 was caused by blunt weapon. The injury report is Ext. Ka-5. P.W.5, Shiv Gopal : 1. Lacerated wound 1 cm. x 1/2 cm., scalp deep on the left side of head 14.5 cm. above the left ear. 2. Stab wound 1.5 cm. x 1/4 cm. piercing through the thickness of whole right cheek, 2.5 cm. away from the right side of mouth with stab wound 1/2 cm. x 1/4 cm. on the right margin of tongue. The injury report prepared by him is Ext. Ka-4. Both the injuries were simple. Injury No. 1 was caused by blunt weapon, while Injury No. 2 was caused by sharp pointed weapon. P.W. 8, Natthu : 1. Abrasion 1/4 cm. x 1/4 cm. with haematoma 5 cm. x 4 cm. on the front of left side of head 8 cm. above the right ear and above the middle of left eye-brow. 2. Wound of entrance : Stab wound 1.5 cm. x 1.5 cm. in the sharp of triangle on the back of upper part of left upper arm 22 cm. above the back of left elbow joint with exit stab wound 1 cm. x 1/2 cm. on the outer upper part of left upper arm 1.3 cm. below the top of left shoulder. Both the injuries were simple. Injury No. 1 was caused by blunt weapon. Injury No. 2 was caused by some sharp pointed weapon. The Injury report prepared by him is Ext. Ka-3. He also stated that injuries of all the injured were about 1/2 day old and could have been caused on 13.2.1977 at about 5.30 P.M. P.W. 7 Dr. K.N. Misra, who was posted as Medical Officer, Government Hospital, Mahoba examined P.W. 6 Kalyan Kumar, Chhotey Lal and Ram Bihari Mishra on 14.2.1977 at 10 A.M., 10.45 A.M. and 11 A.M. respectively and found the following injuries : Kalyan Kumar : 1. Contused wound 1/2" x 1/4, scalp deep vertex. 2. Lacerated wound 11/2" x 2/10", scalp deep right occipital region. 3. Contused wound 1/2" x 1/10" inter frontal region. 4. Abrasion 1/10" x 1/10" back of right hand. 5. Contusion 1/2" x 1/2" left side left ankle. 6. Abraded contusion 2" x 1" right arm lateral side middle third. 7. Abrasion 1/20" x 1/2" right side chest. 8. Cuticular linear abrasion 11/4" x 2/10" left pectoral region more especially towards left side than medial side. In the corresponding side of the kurta there is a cut in the cloth. 9. Abraded contusion 1/2" x 1/4" left eyebrow. 10. Abraded contusion 11/2" x 2/10" right scapular region. 11. Linear cutecular lacerated cut right infra scapular region transversely 11/4" x 1/20" in the centre and tapering in the ends. All the injuries were simple and were caused by some blunt weapon. Injuries Nos. 8 and 11 could have been caused from same nail fixed in the Lathi. He proved the injury report Ext. Ka-12 prepared by him at that time. Chhotey Lal : 1. Lacerated wound 1/2" x 2/10" scalp deep vertex. 2. Incised wound 11/2" x 2/10" x scalp deep with tapering end on the left frontal region, oblique. 3. Incised wound 11/2" x 1/4", scalp deep on the right front to parietal region. 4. Contused wound 1" x 1/4" right parietal region, scalp deep, oblique. 5. Six contused wounds about 1/2" x 2/10", scalp deep in the occipital region and back half of the skull. 6. Contused wound 1/2" x 1/4" left temporal region. 7. Incised wound sickle shaped 11/4" x 2/10", muscle deep left side face. 8. Incised wound 21/2" x 1/4" in the upper end and 1/10" at the lower end on the left shoulder anterior side and skin deep in the lower and muscle deep in the upper half. 9. Incised wound 11/2" x 1/4" right shoulder back transversely muscle deep with its end tapering at lower cuticular cut incised 21/2" x 1/10" 10. Lacerated wound 11/2" x 2/10" right scapular region. 11. Lacerated wound left forearm lower third anterior side 11/2" x 1/4" x muscle deep. 12. Contused wound 1/2" x 1/4" right side chest. 13. Incised wound 3/4" x 1/4" on pulp of left ring finger, muscle deep. 14. Incised wound 1/2" x 1/4" muscle deep on the back side of little finger. All the injuries were simple. Injuries Nos. 2, 3, 7, 8, 9, 13 and 14 were caused by sharp edged weapon including pharsa. Other injuries were caused by blunt weapon. He proved the injury report Ext. Ka-11 prepared by him at that very time. Ram Behari : 1. Linear cuticular abrasion 11/4" x 1/10" on the left arm lateral side middle third. 2. Abrasion 1/2" x 1/4" left wrist back. Both the injuries were caused by blunt weapon. Ext. Ka-10 is the injury report prepared by him at that time. He further gave out that the injuries of all the injured were about a day old. They could have been caused on 13.2.1977 at about 5.30 P.M. On the same day at 1 P.M. he conducted the Post Mortem Examination of Krishna Gopal and found the following injuries : 1. Punctured wound 1" x 1/4" x muscle, lung, pericardium and heat muscle on the left chest below the left nipple, blood from the left ventricle was present. 2. Punctured wound 3/4" x 1/4" x right lung 31/2" fight infra clavicular region. 3. Punctured wound 3/4" x 1/4" x 1" Right side chest below Right nipple. 4. Incised wound 11/2" x 1/2" muscle deep right shoulder upper surface. 5. Lacerated wound 2" x 1/2" on the right infra scapular region. 6. Lacerated wound 1/2" x 1" right vertex. 7. Abrasion 1" x 1/2" right leg lateral side middle third. 8. Abrasion 1/2" x 3/4" right leg middle third and back. 9. Incised wound 21/2" x ⅓" left side cheek extending from the left corner of mouth to left ear cutting the gum of upper and lower jaw. 10. Incised wound 11/2" x ⅓" right cheek extending from right corner of mouth to right cheek cutting the right upper gum and the upper teeth were dislodged. 11. Incised wound 3/4" x 1/4" in lower lip. vertical. 12. Incised wound 11/4" x 3/4" cutting the skin and bone crip clearly on the left frontal eminence. 13. Incised wound 1/4" x 1" right iliac region, muscle deep. Upon internal examination four ounces of blood was found in the pleural cavity. Neck of the tip of injury No. 1 was found in the apex of left ventricle ⅓" x 1/10" x 2/10". Bleeding was present. Right and left upper and left lower gums were cut in injury no. 9 and teeth of left upper jaw were dislodged. About 9 ounces of digested food was found in the stomach. According to him Krishna Gopal died due to shock and halmorrhage as a result of injuries on the heart, lung and mouth. He proved the Post Mortem Report Ext. Ka-9 prepared by him at that time and stated that his death could have been caused on 13.2.1977 between 5.30 P.M. and 11 P.M. The parts played P.W. 3 H.C. Bharat Lal Dwivedi, P.W.9 Lakhan Singh and P.W.10 S.i. Ram Khilawan Singh have already been stated while narrating the prosecution story. The accused did not adduce any oral evidence in defence. Some documentary evidence has been filed to show enmity between them and the first informant and the injured. The Trial Court upon consideration of the evidence placed on record came to the conclusion that Krishna Gopal was done to death not in prosecution of the common object of unlawful assembly but by Badri Singh and Ram Naresh Singh alone and convicted the appellants as stated above. We have heard learned counsel for the parties at length and have perused the record of the case carefully. The first point urged is that the F.I.R. is delayed and has also been ante timed and that it was lodged after consultation and deliberation in order to implicate the innocent persons. The incident is said to have taken place at 5.30 P.M. The F.I.R. was lodged at 11.30 P.M. on the same day. The police station is at a distance of six miles from the place of incident. P.W.1 Ram Behari in his cross examination gave out that after about half an hour of the incident they started on the bullock cart from the place of incident to the police station. This time was spent in arranging for the cart and bringing it from the village to the scene of incident. In this cross examination this witness further gave out that from the place of incident the police station is at a distance of eight miles. Village Utia is at a distance of five miles from the police station. The cart took about three hours in reaching the police station from Utia. He gave the reason of taking so much time in covering the distance of five miles in three hours stating that the passage was bad. The bullock cart was going slowly as injured persons were sitting in it. In about 2 3/4 hours they reached the police station from Utia. He stated that for that reason they could reach the Police Station only at 11 P.M. This very well explains why the F.I.R. could not be lodged before 11 P.M. He further gave out that at the Police Station no Sub Inspector was available and that the Head Constable who was there asked him to lodge the F.I.R. in writing. He then went to the house of his uncle Chandra Mauli which is at a distance of about 200 paces from the Police Station and then came back to lodge it. He stated that the Head Constable at the Police Station did not give him any paper to scribe the F.I.R. and, therefore, he went to the house of his uncle to get the paper and take down the F.I.R. The dead body and the injured were left at the Police Station. P.W. 3 H.C. Bharat Lal Dwivedi in his cross examination gave out that he did not remember whether he had asked P.W.1 Shyam Behari to bring the report in writing. He also stated that Sub Inspector came from his quarter to the office at the time he was preparing the chick report. In the circumstances, we are inclined to believe the first informant that he was asked to bring the F.I.R. and, therefore, he went to the house of his uncle Chandra Mauli in order to obtain the paper and take down the F.I.R. It was 11 P.M. There is nothing on the record to indicate that at the time of night papers could have been available any where near the Police Station. It was, therefore, natural for the first informant to go to the house of his uncle situate at a small distance from the Police Station to get the papers for writing the report. I may also be noted that the deceased died in the passage and some time must have also been taken at the place where he died. In the circumstances, it cannot be said that the F.I.R. was delayed. It was then urged that the three of the injured were examined at Primary health Centre, Kabrai in between 2.40 A.M. and 3.40 P.M., which would indicate that the F.I.R. was ante timed. He did not find anything in the statement of P.W.2 Dr. S.R. Prabhakar to indicate that the Primary Health Centre remains open throughout the night. In the normal course working hours are from 8 P.M. to 2 P.M. Only emergent services are available throughout the night. There is,however, nothing on record to indicate that in this Primary Health Centre the emergent services were available and the doctor was on duty throughout the night. After the FIR was lodged entry must have been made in the General Diary and thereafter letters for medical examination would have been prepared. He gave out that the entry in the General Diary could be completed by 12.30 A.M. Some time must have been spent in preparing the letters for medical examination and then the injured would have been sent. Some time must have also been taken by the Doctor and the pharmacist at the Primary health Centre in coming to the clinic and then examining the injuries. In the circumstances it cannot be said that the time of the medical examination of the injured would lead to the conclusion that the F.I.R. was ante timed. It may be noted that neither P.W. 3 Head Constable Bharat Lal nor the first informant were given any suggestion to indicate that the F.I.R. was ante timed and that it was not lodged at 11.30 P.M. There is nothing on the record to indicate that Chandra Mauli was in any way on inimical terms with the appellants or that he may have persuaded the first informant to implicate the innocent person in the F.I.R. We are, therefore, not inclined to accept the arguments that the F.I.R. was delayed, that it was ante timed and that it was lodged after due deliberation and consultation in order to rope in the innocent persons. It was then urged that all the members of particular families were roped in the F.I.R. indicating that the F.I.R. was lodged in order to ruining three families. In this connection the relationship between different accused was pointed out which is admitted to the prosecution. In his cross examination P.W.1 Shyam Behari gave out that Ram Naresh Singh and Ram Anugrah Singh are three real brothers. All of them have been named in the F.I.R. Their father is Madari Singh. He has not been implicated in F.I.R. He is, however, 80 years of age. He admitted that all the male members of the family of Ram Bharose have been nominated in the F.I.R. He went on to say that Badri Singh is the only male member of his family and he has been nominated in the F.I.R. Ram Singh and Sughar Singh who are the real brothers have been nominated. He however stated that the three brothers of Ram Singh who are major and young men have not been nominated. It was suggested to him that these brothers are minors which suggestion he denied. Kalloo, Rajwa and Ghanshyam are the real brothers. They had also one brother who died after the incident. He has not been nominated in the F.I.R. He denied the suggestion that at the time of incident he was ill. No evidence has been led in the case nor the appellants stated in their examination that the three brothers of Ram Singh were minor at the time of incident or that the fourth brother of Kalloo. Rajwa and Ghanshyam were ill. It cannot, therefore, be said that all the male members of the families of the accused were nominated in the F.I.R. It is the admitted case that the relations between the parties are strained since more than ten years of the incident. Civil and Criminal Litigations have taken place between them. The proceedings under Sections 107 and 116 Criminal Procedure Code were also initiated between them. All this would support the prosecution story that all the accused joined together in order to take revenge and teach the complainant party, a lesson. One person died in this incident and six persons received injuries. The total number of injuries received are 48 in number. The number and nature of injuries would clearly support the prosecution version about involvement of all the appellants in the crime. It was then urged that the prosecution has failed to prove the prosecution story regarding the origin and genesis of the incident. In this connection it was pointed out that the Investigating Officer did not inspect the fields of the complainant and the accused to find out that their fields were irrigated in part. The Investigating Officer in his cross examination gave out that since the3 incident had taken place at a distance from the fields of the parties he did not think it necessary to go and inspect the fields. An experienced and able Investigating Officer would have certainly visited those fields in order to find out as to what was the reason for the incident but the absence of inspection of these fields by the Investigating Officer would not mean that the prosecution story should be thrown out. The three injured witnesses of fact examined in the case have clearly corroborated the prosecution story about the origin and genesis of the occurrence. These witnesses were not cross examined on this point nor the accused have given their version of the incident. In fact the arguments advanced were that the incident did not take place in the manner as alleged and that some of the appellants have been falsely implicated. Learned Senior Counsel of the appellants frankly conceded that there is no evidence to support the contention of the appellants that the injuries were received by the injured in dacoity committed in their house. It was then urged that the prosecution story is improbable and unbelievable. It was argued that P.W. 8 Natthu had informed P.W. 4 Kalyan Kumar, the deceased and other persons that two of the accused have stopped the water with which he was irrigating his fields and have diverted the water to their own fields and, therefore, in the circumstances, these two persons should have come armed with some weapon as there was every likelihood of ensuing quarrel between them. It appears that these persons thought that in case they went with arms, the two appellants may be provoked and for that reason they did not went armed. It may be noted that P.W.8 Natthu had not informed that the two appellants, Ram Naresh Singh and Ram Anugrah Singh were armed. It was also contended in this connection that P.W.1 Shyam Behari in his statement gave out that after some time they followed P.W.4 Kalyan Kumar and Krishna Gopal for the fear that some altercation may not take place there. They were also unarmed. It was contended that as these persons apprehended some altercation they would not have gone unarmed there. It does not appear that he was cross examination upon this point. It may be that these persons also did not want to pick up quarrel with Ram Naresh Singh and Ram Anugrah and, therefore,they went unarmed. It may also be that they could not have with blood the might of the appellants and, therefore, thought it expedient to go unarmed. In this connection it was argued that according to the prosecution story Ram Anugrah Singh and Ram Naresh Singh had asked the complainant party to wait at the fields stating that they would be coming to teach them a lesson and in view of the threat they would not have remained standing in the fields unarmed. This argument is also not convincing. P.W.1 Shyam Behari in his statement gave out that they waited for about 10 or 15 minutes and then they left the fields for the village and in the passage the incident took place. In cross examination he gave out that they apprehended that Ram Anugrah Singh and Ram Naresh Singh may return back to the fields and therefore they started from there and even though all the plots had not been irrigated, no one was left on the fields to look after the irrigation. All this would indicate that these persons were in fact fearful of the accused and, therefore after about 10 minutes they started for the village. it appears that they could not visualise that the appellants would return back to the fields so soon and, therefore, they were surprised by them in the passage. It is in evidence of the witnesses that the appellants surrounded them from all the four sides, inflicted injuries upon them and did not give any opportunity to them to run to their village. It was then urged that the participation of all the appellants has not been established. P.W.1 Shyam Behari and P.W. 5 Gopal Krishna in their statements gave out as to who were the appellants, who inflicted injuries upon them. They were, however, not in a position to say as to who were the appellants who inflicted injuries upon the other injured. This statement is quite natural. A person who is being inflicted blows would try to save and avoid the blows rather than to look and find out as to who are the appellants inflicting the injuries upon the other injured. If the third injured and the witnesses could not tell as to who were the appellants who inflicted the injuries, it would not lead to any inference in favour of the appellants. It is in the prosecution evidence that all the appellants had surrounded the victim and inflicted injuries upon them. In the circumstances it would be difficult to point out the injuries inflicted upon the injured persons individually by the appellants. Otherwise also a person who is being inflicted injuries would be more concerned with saving himself from the blows rather than in finding out as to who are the individually inflicting injuries upon him especially when he had noticed all the appellants beforehand who had come armed with weapon to beat them. On the basis of the injuries found by the doctor upon the injured it was argued that it cannot be said that the injuries were inflicted by pharsa and spears. More especially it was argued that Injury No. 1 of Natthu which is in the shape of triangle and punctured wounds could not have been caused by spears and pharsa. None of the witnesses was put any question regarding the shape and the size of the spears and pharsa. The doctor was asked nothing in his cross examination to illustrate as to whether these injuries could have been caused by pharsa or spears. On the other hand doctors in their examination had clearly stated that such injuries could have been caused by pharsa,spears and blunt weapons. There is thus no contradiction between medical and oral evidence regarding the weapons used by the appellants. it was also argued in this connection that Injury No. 7 of Chhotey Lal is sickle shaped and could not have been caused by any of these weapons. This argument also cannot be accepted in view of non examination of the witnesses on this point. It was then urged that the injuries of all the injured are simple in nature and therefore, the appellants could not have convicted for the offence under Section 307 Indian Penal Code. Learned A.G.A. has frankly admitted that the injuries found upon the person of the injured were all simple. They could not, therefore, be convicted for the offence punishable under Section 307 Indian Penal Code. It was also argued that the incident took place on 13.2.1977 and that a considerable time has passed, it would not be just and proper to send the appellants except Badri Singh and Ram Naresh Singh to jail and in the circumstances the sentence already under gone by them and imposition of fine would meet the ends of justice. As regards Badri Singh and Ram Naresh Singh it was argued that no offence under Section 302 Indian Penal Code can be said to have been made out and that they can be help guilt for the offence under Section 325 and 326 Indian Penal Code and nor more. From the evidence adduced in the case it would appear that these two appellants continued to inflict injuries upon the deceased even though he had fallen down saying that he should not allowed to survive otherwise he would create problems for them. They had, therefore, full intention to commit the murder of the deceased and in fact are responsible for his murder. They were, therefore, rightly convicted for the offence under section 302 Indian Penal Code. As regards the other appellants it was argued that their common intention has not been proved and that the trial court did not accept the prosecution story of common intention and therefore only those appellants could have been convicted who are proved to have inflicted injuries. The argument is that only some of the appellants have been named as having inflicted injuries upon the injured examined as prosecution witnesses in the case and they alone can be convicted. The argument is not impressive. The trial court did not accept the prosecution theory of common intention in so far as the murder of Krishna Gopal was concerned. As regards the other appellants, it has accepted the prosecution story of common intention. all the appellants armed with weapon came from the village in order to teach lesson to the deceased and P.W. 4 Kalyan Kumar. P.W.8 Natthu and as such it cannot be said that they were not actuated by common intention. From the record it appears that Ram Bharosey and Brij Pal were granted bail on 30.3.1977 while the other appellants, who were arrested in the month of February and March,1977, were released on bail in the month of September, 1977. Except Ram Bharosey and Brij Pal other appellants have been in jail for about six months. The appeal in so far as it relates to (1) Badri Singh and (2) Ram Naresh Singh is dismissed. They would surrender forthwith before the Chief Judicial Magistrate, Hamirpur to serve out the sentence awarded to them by the trial Court failing which the Chief Judicial Magistrate, Hamirpur would issue their non-bailable warrants of arrest and notices to the sureties to produce them in Court and would send them to jail. The appeal in so far as it relates to the remaining appellants is allowed in part. Their conviction under Sections 307/149 Indian Penal Code is set aside. Instead Ram Bharosey Singh, Babu Singh, Brij Pal Singh, Jagroop Singh, Ram Anugrah Singh, Ram Rup and Ghanshyam are convicted under Sections 323/149 and 324/149 Indian Penal Code. The sentence awarded to the under Section 148 Indian Penal Code is also modified. Each of appellants namely (1) Babu Singh (2) Jagrup Singh (3) Ram Anugrah Singh (4) Ram Rup and (5) Chanshyam is sentenced to the imprisonment already undergone and pay fine of Rs.750/- for the offence under Sections 148 Indian Penal Code and Rs.750/-for the offence punishable under Sections 324/149 Indian Penal Code and Rs.500/- for the offence under Sections 323/149 Indian Penal Code failing which each of them would undergo R.I for 2 years for the offence under Section 48 Indian Penal Code and to 21/2 years R.I. for the offence under Sections 324/149 Indian Penal Code and 6 months R.I. for the offence under Sections 323/149 Indian Penal Code. All the sentences shall however run concurrently. Appellants (1) Ram Bharosey and (2) Brij Pal Singh have been in jail for a very short period. Each of them is sentenced to the imprisonment already undergone and pay fine of Rs.1000/- for the offence under Section 148 Indian Penal Code and Rs.1000/- for the offence under Section 324/149 Indian Penal Code and Rs.500/- for the offence under Section 323/149 Indian Penal Code failing which each of them shall undergo R.I. for 2 years for the offence under Section 148 Indian Penal Code to 21/2 years R.I. for the offence under Sections 324/149 Indian Penal Code and to 6 months R.I. for the offence under Sections 323/149 Indian Penal Code. All the sentences would however run concurrently. Appellants (1) Sughar Singh, (2) Ram Singh (3) Rajwa, (4) Kalloo and (5) Lallu Singh are convicted under Sections 147, 323/149 and 324/149 Indian Penal Code. Each of them is sentenced to pay fine of Rs. 750/- for the offence under Section 147 Indian Penal Code to 21/2 years R.I. for the offence under Section 324/149 Indian Penal Code and to 6 months R.I. for the offence under Sections 323/149 Indian Penal Code. All the sentences would, however, run concurrently. The appellants are given 2 months time to deposit the fine, failing which the Chief Judicial Magistrate, Hamirpur would get them into custody to serve out the sentence awarded by this Court. In case the fine is realised, each of the six injured namely P.W. 1 Shyam Behari, P.W.5 Shiv Gopal, P.W. 6 Kalyan Kumar, P.W.8 Natthu, Chhotey Lal and Ram Behari would be paid compensation of Rs.1000/-. ;