JUDGMENT H.C.P. Tripathi, J. - These appeals arise out of a common judgment of the learned Additional Sessions Judge of Basti and are being disposed of together. Appellant Sheo Pujan has been convicted of an offence under Section 302 I.P.C. and sentenced to death. Appellants Sheo Murat and Jeet Bahadur have been convicted under Section 302 read with Section 34 I.P.C. and each of them has been sentenced to imprisonment for life. The learned Sessions Judge has made a reference for the confirmation of the sentence of death imposed on Sheo Pujan. 2. Appellants Sheo Pujan and Sheo Murat are real brothers and appellant Jeet Bahadur is their collateral. These appellants and the deceased Indrajeet who happened to be their distant collateral resided in contiguous houses in village Dhaurahara within the jurisdiction of police station Dhanghata in the district of Basti. 3. The prosecution case in short is as follows :- Indrajeet (deceased) was a well to do cultivator who used to lend grain on interest. The three appellants had taken grain from him on loan and had failed to refund the same. The persistent demands made by the deceased for the return of the grain had embittered the appellants against him. In the year 1963 there was a dispute between the appellants on the one hand and Inderjeet on the other relating to their sahan land and the passage leading to it which had resulted in Indrajeet and Sheo Murat filing reports with the police accusing each other of committing highhandedness and threatening with dire consequences. In September 1963 the dispute relating to the sahan land appears to have been settled l;y the intervention of the village Panches and a Panchaitnama Ext. Ka. 6 was executed as an evidence of this settlement between the appellant and the deceased. In spite of this settlement, however, the relations between the parties continued to remain strained. Summonses were received by the appellant from a criminal court at Kanpur and they entertained a suspicion that Inderjeet was responsible for getting a criminal case instituted against them at Kanpur. On February 8, 1965, at about 12 in the noon Indrajeet was returning home from his field. When he had reached near a brick kiln which lay on the way the three appellants out of whom Sheo Pujan was armed with a spear suddenly appeared. On February 8, 1965, at about 12 in the noon Indrajeet was returning home from his field. When he had reached near a brick kiln which lay on the way the three appellants out of whom Sheo Pujan was armed with a spear suddenly appeared. Jeet Bahadur and Sheo Murat caught hold of Indrajeet and Sheo Pujan plunged his spear in his abdomen. On the alarm raised by the victim the witnesses including his elder brother Ram Dhani ran to the scene but the appellant managed to escape. Ram Dhani found Indrajeet lying severely injured and omentum coming out of the abdomen. The injured was carried on a cot to the police station where he lodged a report giving the details of the occurrence on the basis of which a case was registered and investigation followed. 4. Indrajeet was first taken to Hainsar bazar dispensary for medical treatment. As the medical officer there was not available he was taken to the hospital at Khalilabad where his injuries were examined by Dr. R. R. Ghosh (P.W. 4) on February 9, 1965 at 8-30 a.m. who found punctured wound in the abdominal wall over the right ilisc fose through which coils of intestine had protruded out. The coils were black in colour and gangranous and impacted in the wound. As the patient was in a grave condition and pulseless on the report of Dr. Ghosh his dying declaration was recorded at 9-5 a.m. by Jagdamba Prasad, Tehsildar Magistrate (P.W. 13) and therefore he was sent to the district hospital at Basti for proper treatment. Indrajeet died in the hospital at Basti on the same date at 10-45 p.m. 5. The post-mortem examination on the dead body of Indrajeet was performed by Dr. B. B. Mathur (P.W. 5) at the district hospital at Basti on February 10, 1965 at 4 p.m. The deceased was about 25 years of age. A punctured wound in a stitched condition IF x cavity deep on the right side of adbomen was found. On internal examination clotted blood was found present in the abdominal wound and the small intestines had turned gangranous and the coils were adhered to each other. Death in medical opinion was due to shock and haemorrhage on account of the aforesaid ante mortem injury which could have been caused by a spear blow. 6. On internal examination clotted blood was found present in the abdominal wound and the small intestines had turned gangranous and the coils were adhered to each other. Death in medical opinion was due to shock and haemorrhage on account of the aforesaid ante mortem injury which could have been caused by a spear blow. 6. At the trial appellants denied to have entertained any animosity towards the deceased or to have made a murderous assault on him. Their case was that Ram Dhani brother of the deceased wanted to grab their property by getting them convicted on a murder charge and the witnesses had deposed against them falsely under his influence. None of these appellants, however, produced any evidence in defence. 7. The case of the prosecution rests on the eye-witness account furnished by Ram Subhag, Ram Prasad, Rama Shanker and Sri Ram (P. Ws. 1 to 3 and 6), on the dying declaration of the deceased recorded by Tehsildar Magistrate, and the first information report lodged by him in which he had nominated the three appellants as his assailants. The prosecution has also brought on record copies of the reports filed by the parties against each other with police in the year 1963 and the Panchaitnama Exh. Ka. 6 to give the background in which the crime has been committed. Ram Dhani brother of the deceased has testified to the strained relationship whick had been continuing between the parties since the last seven years. 8. The learned Sessions Judge on an assessment of evidence reached a conclusion that the case of the prosecution that appellants Jeet Bahadur and Sheo Murat caught hold of the de Sheo Pujan plunged his spear in his abdomen causing him a fatal injury m been established beyond doubt. Accordingly he convicted and sentenced the appellants stated above. 9. Having heard the learned counsel for the appellants at some length we are of opinion that the prosecution story as unfolded by the eye-witnesses and the deceased in his statement recorded by the Tehsildar Magistrate is basically true. 10. In the first information report lodged by the deceased himself Ram Subhag and Ram Prasad have been named amongst the persons who had witnessed the occurrence and had rebuked the appellants for their highhandedness. 10. In the first information report lodged by the deceased himself Ram Subhag and Ram Prasad have been named amongst the persons who had witnessed the occurrence and had rebuked the appellants for their highhandedness. Both these witnesses have stated to have heard an alarm coming from the side of the brick kiln and then to have run towards that side. They have added that when they had remained at a distance of 10 to 15 paces only they saw Jeet Bahadur catching hold of the deceased from behind, Sheo Murat catching his left hand and Sheo Pujan plunging his spear in his abdomen. They have also testified that the deceased used to lend grain to other cultivators on loan, that the appellants had failed to clear the loan which was due to the deceased; the deceased had gone on making persistent demands on them which had resulted in creating bad blood between them. Both of them have also stated that there is no obstruction between the place where they were sitting and where the deceased was attacked by the appellants. We have read the statements of these witnesses with care. They are wholly independent witnesses and there is nothing to show that they had any particular reason for deposing against the appellants. Ram Shanker and Sri Ram have corroborated the testimony furnished by the aforesaid witnesses in all its essential particulars. They too have stated to have run to the scene of occurrence after hearing the alarm and then to have witnessed the occurrence. Sri Ram happens to be the son of Ram Subhag while Ram Shanker is a resident of Poora Sukhlal where the murder was committed. In the first information report it has been mentioned by the deceased that certain other persons of the village had also reached the scene and witnessed the occurrence. They are, therefore, natural witnesses in the scene that their presence at the scene of occurrence is highly probable. Ram Shanker belongs to the same fraternity as the deceased and the appellants. In his statement we find nothing to show that he had any particular animus against the appellants. We are, therefore, satisfied that the testimony of all these eye-witnesses inspires complete confidence. Ram Shanker belongs to the same fraternity as the deceased and the appellants. In his statement we find nothing to show that he had any particular animus against the appellants. We are, therefore, satisfied that the testimony of all these eye-witnesses inspires complete confidence. The dying declaration of the deceased as recorded by the Tehsildar Magistrate and as contained in the first information report which he lodged with the police lends powerful corroboration to the testimony of these witnesses inasmuch as the story put forward by them is the same in all its essential particulars as has been given by the deceased himself in his statement. The testimony of the eye-witnesses as corroborated by the dying declaration, therefore, leaves no room for doubt that the occurrence had taken plaice in the manner suggested by the prosecution and that all the three applicants had participated in the same. 11. Learned counsel for the appellants has argued that even if it is held that Sheo Pujan was responsible for giving a spear to the deceased the offence committed by him will not fall within the purview of Section 303 I.P.C. In this connection learned counsel invited our attention to the statement of Dr. B. B. Mathur (P.W. 5) who has stated that the gangrene which had set in the intestines which had come out of the wound was also one of the contributory causes of death. We, however, find no substance in these arguments. 12. The blow was given with great force causing a punctured wound in the abdominal wall which was paritoneum cavity and out of which large intestines had come out. The victim was taken within reasonable time to the nearest hospital and thereafter to Khalilabad dispensary where the doctor who examined him had found his condition extremely grave. By that time the wound had become gangrenous but that was because the intestine had come out of it. The victim expired in the hospital in spite of medical assistance available there. In the circumstances we are of opinion that the injury caused by Sheo Pujan was of a grievous character which was sufficient in the ordinary course of nature to cause death. Therefore in view of explanation 2 to Section 299, Penal Code, the offence will not fall outside the ambit of Section 299 though the death was ultimately due to the supervention of gangrene and paralysis of the intestines. Therefore in view of explanation 2 to Section 299, Penal Code, the offence will not fall outside the ambit of Section 299 though the death was ultimately due to the supervention of gangrene and paralysis of the intestines. Salebhai Kadaralis case, 1948 Cr.L.J. 647. 13. Learned counsel for the appellants has further contended that there is neither any circumstance nor evidence on the record to show that appellants Jeet Bahadur and Sheo Murat shared any common intention with Sheo Pujan for committing the murder of the deceased. It is urged that neither the deceased in his dying declaration nor the witnesses in their testimony before the court have stated that these two appellants had either exhorted Sh&o Pujan to give a spear blow to the deceased or to kill him. The only part which has been attributed to these two appellants by the prosecution is that they were coming together with Sheo Pujan when they saw the deceased going from the same path and then these two appellants caught hold of him and Sheo Pujan gave him one spear blow. Learned counsel contends that on these facts appellants Jeet Bahadur and Sheo Murat cannot be held guilty for the offence committed by Sheo Pujan which remain his individual act and Section 34 does not come into play. There is force in these contentions. 14. The picture which emerges from the evidence and circumstances of the case is that the deceased was returning home and these three appellants were also coming on the same day. Two of them caught hold of him and the third pierced his spear in the abdomen of the deceased. There is nothing to suggest that there was a previous concert between these three appellants for committing the murder. It is, however, clear that all the three had entertained feelings of animosity towards the deceased and had been associating with one another in the past in their prejudicial activities against him. It is also obvious that when appellants Jeet Bahadur and Sheo Murat caught hold of the deceased they were conscious that their companion Sheo Pujan was armed with a spear and was expected in all likelihood to use the same against the deceased. It is also obvious that when appellants Jeet Bahadur and Sheo Murat caught hold of the deceased they were conscious that their companion Sheo Pujan was armed with a spear and was expected in all likelihood to use the same against the deceased. The fact that as soon these two appellants caught hold of the deceased their companion Sheo Pujan thrust the spear in the abdomen leads to an irresistible inference that all of them shared the common intention to beat the deceased and as soon as one of them was armed with a stabbing instrument he was likely to produce grievous injuries. These two appellants must therefore be held guilty of an offence under Section 326 I.P.C. while appellant Sheo Puian of an offence under Section 302 I.P.C. 15. In view of the aforesaid discussion of the evidence and circumstances appearing on the record we affirm the conviction of Sheo Pujan under Section 302 I.P.C. but in view of the medical evidence that in case immediate qualified medical assistance had been available to the deceased there was a possibility of his surviving, we do not think that it is a case where the sentence of death should be imposed on him. Accordingly we set aside the sentence of death and instead sentence him to imprisonment for life. 16. As regards the other two appellants their conviction under Section 302/34 I.P.C. and the sentence of life imprisonment imposed on each of them are set aside. Instead they are convicted of an offence under Section 326 I.P.C. read with Section 34 I.P.C. and each of them is sentenced to five-years rigorous imprisonment. The reference made by the learnel Sessions Judge for the confirmation of the death sentence imposed on Sheo Pujan is rejected.