JUDGMENT Capoor, J. - This appeal has been preferred by Nanhey and Bum and is directed against an order of the learned Temporary Civil and Session's Judge, Varanasi whereby the Appellants were found guilty of the offences Under Sections 302/34 and 447 of IPC and which one of them was sentenced to undergo imprisonment for life for the former and to undergo three years R.I. for the latter offence. The sentences awarded by the learned trial court were ordered to run concurrently. Along with the Appellants four more accused persons were tried for the aforesaid offences but they were acquitted. 2. The facts leading to the prosecution of the Appellants and the other accused persons may briefly be stated as below. The Appellants and the accused persons Madan and Ghaman were own brothers, being the sons of Sarju. The other accused persons, Lallan and Bachche were the sons of accused Madan. The accused persons and Bachau deceased resided in the same village, namely, Baburi within the jurisdiction of P.S. Chandauli, district Varanasi. There had been a long standing dispute between the accused persons on the one hand and Bachau deceased on the other with regard to plot No. 158 situate in the afroesaid village. That plot along with one other plot was purchased by Bachau deceased and his brothers under a sale deed dated 22.9 1918 executed by one Chamaru and his mother Smt. Anandi and since the purchase they had been in possession thereof. On 13.11.1961 at about 7 or 8 A.M. Bachau was getting the aforesaid plot ploughed by two of his Halwahas nemely, Steonath, P.W. 3 and Faujdar and he himself began digging the corners with a spade. The accused persons reached there and asked Bachau to refrain from getting the plot of land ploughed. The protest was not heeded to and Bachau said that he was the owner in possession of the plot and would get it ploughed. The accused persons were variously armed with at his and Gandasas and they launched an attack on Bachau who plied his spade in self defense. Smt. Daulat, P.W. 1 the widow of Bachau, was on her Ghabutra at that time and the aforesaid plot was visible from her Ghabutra. She saw the whole incident. The accused persons were variously armed with at his and Gandasas and they launched an attack on Bachau who plied his spade in self defense. Smt. Daulat, P.W. 1 the widow of Bachau, was on her Ghabutra at that time and the aforesaid plot was visible from her Ghabutra. She saw the whole incident. At the alarm raised by the victim, she and other persons who were in the vicinity, namely, Ram dhari, P.W. 6, Budhlal, P.W. 5, Sura Singh, P.W. 4 Jhullan, Dharmu and Praduman Tewari rushed to the scene of occurrence and saw the incident. As a result of injuries received, Bachau fell down in the aforesaid field and became unconscious and thereafter he did not regain his consciousness. Smt. Dauiat assisted by some other persons took him to her Ghabutra and dictated a report, Exhibit Ka. 1, to one Manatim Singh and carried her husband along; with the report to P.S. Chandauli where it was lodged at 12.05 hours and a formal report, Exhibit Ka-9, was prepared on its basis and a case u/s s. 148 and 307 of IPC was registered in the General diary, Bachau was sent to the Ghandauli dispensary where his injuries were examined by Dr. R.R. Dwivedi, P.W. 8 at 12.45 hours. Eight injuries including five lacerated wounds and three contusions were found on his person. Since his condition was precarious he was taken to S.S.P.G. Hospital, Varansi under medical advice and there he breathed his last during night between 16th and 17th of November, 1961. 3. The post mortem examination on the dead boby was performed by Dr. S.G. Srivastava, P.W. 7. The probable time since death was estimated as one day. As a result of external examination, the following antemortem injuries were found on the dead body: 1. Lacerated wound 1 l/4 x l/2" x bone deep on the right side of scalp, 2 1/4" above right pinna. The wound runs obliquely. Its margins are ragged and covered with blood clots. 2. Lacerated wound 3" x 3/8" x bone deep on the left half of scalp. It runs longitudinally and is 1/2" away from median line. The margins are ragged and covered with blood clots. 3. Lacerated wound 1" x 1/2" x muscle deep on the left parietal bone. It runs obliquely and is 1" posterior to injury No. 2. 4. 2. Lacerated wound 3" x 3/8" x bone deep on the left half of scalp. It runs longitudinally and is 1/2" away from median line. The margins are ragged and covered with blood clots. 3. Lacerated wound 1" x 1/2" x muscle deep on the left parietal bone. It runs obliquely and is 1" posterior to injury No. 2. 4. Lacerated wound 1/2" x 1/2" x muscle deep on the back of the left middle metacarpal joint. The margins are ragged and covered with blood. 5. Lacerated wound 1/2" x 1/8" x skin deep on the back of the right in dex metacarpal joint. Injuries at serial Nos. 6 and 7 of the report were not found at the time of the post mortem examination. The scalp, membranes and brain were full of clotted blood. The cause of death was stated to be coma due to injuries to skull bones and their fracture resulting into 'intracranial hemorrhage and compression of brain. The Appellants were arrested on the same day on which the incident occurred and as a result of the search effected in the eastern one of their houses two lathis which appeared to be blood stained wore recovered. These lathis along with the bloodstained earth recovered from the scene of occurrence and the clothes which were on the dead body were sent to the Chemical Examiner and. the Union Serologist and Were found to be stained with human blood. 4. The accused persons pleaded not guilty and of them four, who have since been acquitted, denied their participation in any incident of marpit. The case put forward by the Appellants was that the disputed plot was purchased by their predecessor in interst from one Lillu in the year 1931 and since then their predecessor in interest and they had all along been in possession thereof. It was not denied that on the day and at the time of the incident Bachau deceased along with his brothers, Ramnandan and Hazari, was getting the aforesaid field ploughed, that the Appellants went there and stood in front of the plough and asked Bachau not to get the field ploughed, but he did not refrain and he and his companions assaulted them. It is said that Bachau was armed with a Gandasa and his companions, Raninan.dan and Hazari, were each armed with a lathi. It is said that Bachau was armed with a Gandasa and his companions, Raninan.dan and Hazari, were each armed with a lathi. The Appellants also plied their lathi in the exercise of the right of private defence. A written report of the aforesaid incident was lodged by Appellant Nanhey against Bachau, Hazari and Ramnandan at 13.30 hours, vide Exhibit Kha 3. They were also sent to Ghandauli dispensary where their injuries were also examined by Dr. R.R. Dwivedi, Nanhey was found to have four injuries including one incised wound, one punctured wound and two lacerated wounds and Appellant Bum was found to have one lacerated wound. Subsequently Nanhey filed a complaint Under Sections 307, 323 and 324/34 of IPC against Ramnandan and Hazari. The complaint filed by Nanhey was dismissed and the result of the prosecution launched against the accused persons has already been indicated in the earlier portion of this judgment. The Appellants examined Bhagelu, D.W. 1 and Shyam Narain, D.W. 2 and head-constable Rafat Ullah was examined by the court as C.W. 1. 5. On a consideration of the evidence on record the learned Sessions Judge reached the conclusion that Bachau deceased was in possession of the disputed plot and that the offensive was taken by the Appellants, and on these findings, he convicted the Appellants. He was, however, not satisfied as to the guilt of the other accused persons and as has already been observed, they were acquitted. 6. The correctness of the findings recorded by the learned Sessions Judge has been challenged on behalf of the Appellants. It has firstly been contended that Bachau deceased was not in possession of the disputed plot and that the Appellants had been in possession of it for a long time. There is overwhelming documentary evidence on record indicating that the civil and criminal litigations which ensued between the parties with regard to the disputed plot ended in favour of Bachau and against the Appellants. In the civil suit it was held that Lillu did not have any title to the disputed plot of land and, ex hypothesi, he was incompetent to transfer any title thereto in favour of the predecessor in title of the Appellants. In the civil suit it was held that Lillu did not have any title to the disputed plot of land and, ex hypothesi, he was incompetent to transfer any title thereto in favour of the predecessor in title of the Appellants. In the extracts from Khasra for the years from 1352 to 1355 Fasli, Charnaru, the transferor of the disputed plot in favour of Bachau deceased was recorded as the tenant-in-chief and no one was recorded as a sub-tenant. In the extracts for the earlier years Sarju was recorded as a sub-tenant of the disputed plot but such an entry did not find place in the extracts of Khasra for the years 1352 to 1356 Fasli and it is clear that the prior possession of Sarju had come to an end before 1352 Fasli. The sale deed in favour of Bachau deceased was executed by Charnaru in 1356 Fasli and after execution the names of Bachau deceased and of his brothers were recorded in the Revenue papers as against the aforesaid plot, vide extracts from Khasra for the years 1356 to 1359 Fasli, Exhibits Ka- 30 and Ka-31. Proceedings u/s 145 of Code of Criminal Procedure were also initiated with regard to the disputed plot and, as already observed, they terminated in favour of Bachau and his brothers, vide order dated 17.3.1951, Exhibit Ka 23. The disputed plot was released in favour of Bachau and his brothers and Sarju, the ancestor of the Appellants, was prohibited from interfering with the peaceful possession of Bachau. No suit for possession was filed by the Appellants thereafter. A. suit to recover the proofed of mango tree, which stood in the disputed plot and which was alleged to have been cut by Bachau and his brothers and for an injunction restraining the Defendants from interfering with the possession of the Plaintiff was, of course, filed by Sarju in the year 1951. The suit was decreed by the trial court but was dismissed by the court of appeal and the order of dismissal was confirmed by the High Court. During the pendency of the aforesaid suit the names of the Appellants were recorded as being in possession of the disputed plot but as the aforesaid suit finally terminated in favour of Bachau deceased and his brothers no value can be attached to the entries made in the Revenue papers during the pendency of the suit. During the pendency of the aforesaid suit the names of the Appellants were recorded as being in possession of the disputed plot but as the aforesaid suit finally terminated in favour of Bachau deceased and his brothers no value can be attached to the entries made in the Revenue papers during the pendency of the suit. On the question of possession, the prosecution examined Smt. Daulat, P.W. 1, Komal Singh P.W. 2, Budhlal P.W. 5 and Ramnandan P.W. 12. Smt. Daulat is the widow of the deceased. The other witnesses have fields in the vicinity of the disputed plot. The oral and documentary evidence on record has been examined in detail by the learned Sessions Judge and the learned Counsel for the Appellants was unable to point out any infirmity in the reasoning of the learned trial court and we endorse the conclusion reached by it on the question of possession. The aforesaid finding necessarily leads to the conclusion that the offensive was taken by the Appellants for it is not disputed by them that they had obstructed the carrying on the ploughing operation in the aforesaid field at the instance of Bachau deceased. 7. It has lastly been contended on behalf of the Appellants that as there was nothing on record to establish that the fatal blow or blows were struck on the deceased by the Appellants they could not be convicted of the offence u/s 302 of IPC with the aid of Section 34 of that Code. The argument has been that according to the prosecution version four more persons had participated in the attack on the deceased and the fatal blows might well have been inflicted by them. In support of the aforesaid contention, reliance has been placed upon the decision of the Supreme Court in the case of Krishna Govind Patil v. The State of Maharashtra (1963 AWR 704). We have examined the facts 01 the aforesaid case and the reasoning on which its decision was based with care and, in our opinion, not only is the aforesaid case distinguishable on facts but some of the observations made therein negative the contention advanced on bahalf of the Appellants. In the aforesaid case four persons were charged with the offence u/s 302 read with Section 34 I P.C. and only one of them was convicted of the aforesaid offence. In the aforesaid case four persons were charged with the offence u/s 302 read with Section 34 I P.C. and only one of them was convicted of the aforesaid offence. Before the Supreme Court it was argued that as three of the four accused persons had been acquitted the remaining fourth could not be convicted with the aid of Section 34 of I.P.C. and that contention found favour with their Lordships, the reasoning being that after the acquittal of three of the four accused persons there remained no occasion for the application of Section 34. In the present case, six persons were put on trial, four of whom were acquitted and the number of the convicted accused persons was more than one and it could not, therefore, be said that Section 31 could not be applicable. There is a clear distinction between a case in which the number of the convicted persons is one out of several and a case in which the number of the convicted persons is more than one. Thus the mere fact that in the aforesaid Supreme Court case the application of Section 34 was ruled out would not necessarily lead to the conclusion that the said section would not be attracted to the present case. During the course of his judgment, Subba Rao, J. who spoke for the Court gave a few illustrations to bring out the import of Section 34 of I.P.C. and its impact on different situations. The first of these illustrations reads as below: A, B, C and D are charged u/s 302, read with Section 34, of the Indian Penal Code for committing the murder of E, The evidence is directed to establish that the said four persons have taken part in the murder. And with reference to mat illustration it was observed that: The Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. These observations make it abundantly clear that there is no legal bar to the recording of conviction of two or more persons charged with a certain offence with the aid of Section 34 of I.P.C. on the acquittal of some of the named accused persons. These observations make it abundantly clear that there is no legal bar to the recording of conviction of two or more persons charged with a certain offence with the aid of Section 34 of I.P.C. on the acquittal of some of the named accused persons. Further on, it was observed that when accused are acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them the result in law is the same: it would mean that they had not taken part in the offence. It would thus appear that there is no substance in the contention advanced on behalf of the Appellants that even though four of the named accused persons had been acquitted the fatal blows might have been inflicted by them. It has been contended on behalf of the Appellants that no weight should be attached to the aforesaid observations of their Lordships as they themselves did not adhere to them inasmuch as they did not record a conviction u/s 302 of I.P.C. simpliciter which they should have done on the basis of the aforesaid observations. The argument is an ingenious one, but we do not think that it has any substance. It does not appear from the report of the aforesaid decision if it was argued that even if the Appellants could not be convicted with the aid of Section 34 of I.P.C. he could be convicted for the simpliciter offence. We, therefore, do not think that no value should be attached to the aforesaid observations of their Lord-ships merely because they did not record a conviction for the offence u/s 302 of IPC simpliciter. 8. The order of acquittal of four of the accused persons has become final. According to medical evidence, the injuries found on the deceased Bachau could have been inflicted with the weapons with which the Appellants are stated to have been armed and if the beating is held to have been inflicted by them in furtherance of a common intention to kill Bachau or to inflict such bodily injuries as the Appellants knew to be sufficient, in the ordinary course of nature, to cause death they would be guilty of the offence u/s 302 of IPC with the aid of Section 34 of that Code. The important question, therefore, that awaits consideration is as to whether beating was given to Bachau deceased by the Appellants in furtherance or a common intention to kill Bachau or to inflict such bodily injuries on him as the Appellants knew to be sufficient, in the ordinary course of nature, to cause death. There had ensued protracted litigations, civil and criminal, about the disputed plot between the parties. The Appellants were own brothers and there is overwhelming evidence indicating that both of them had joined in attacking the deceased. Keeping in view the number and the nature of the injuries found on the dead body it may reasonably be inferred that the common intention of the Appellants was to kill Bachau or, in any case, to inflict such bodily injuries as they knew to be sufficient, in the ordinary course of nature, to cause death. We have, therefore, no hesitation in upholding the finding recorded by the learned Sessions Judge that Section 34 of IPC was attracted to the case. 9. On behalf of the State, it has been argued that it is open to this Court to examine the correctness of the finding recorded by the learned Sessions Judge acquitting the other accused per sons and, in support of that contention, reliance has been placed upon the case of Karan Singh v. State of Madhya Pradesh (2) (1965 AWR 426). In view of the fact that we have held that Section 34 of IPC is applicable to the instant case it is not necessary to notice that argument in detail and, without expres sing any opinion thereon, we would context ourselves with saying that the 1965 Supreme Court case (supra) is distinguishable inasmuch as therein the order of acquittal was made in one case and the order of conviction in another and what was held was that the correctness of the finding of acquittal in one case may be examined by the Court trying another case. In the instant case on the other hand, the order of acquittal and conviction has been recorded in the seme case. 10. For the reasons set forth in the earlier portion of this judgment the appeal is devoid of merits and we, accordingly, dismiss it. The Appellants are on bail. Their bail bonds are cancelled and they shall be taken into custody forthwith to serve out the sentence awarded to them.