JUDGMENT S. D. Khare, J. - This is an appeal by Balwant Singh and three others, who have been convicted under Section 302 read with Section 34 of the Indian Penal Code and each sentenced to imprisonment for life. 2. The prosecution case, briefly stated, was that there was a long standing enmity between Balwant Singh (appellant) on the one hand, and Chuttan Lal (deceased) on the other, both of whom were residents of village Ahmadpur Grant, police station Jawalapur, district Saharanpur. About eight or ten years prior to this occurrence Balwant Singh and his son Deedar Singh had demolished the mend in between their plot and that of Chhuttan Lal (deceased) giving rise to ill-feelings between them. In or about the year 1960 Balwant Singh (appellant) was a candidate for Pradihanship and Chhuttan Lal (deceased) had set up another candidate, namely Dalip Singh to contest the election. Chhuttan Lal did parivi for Dalip Singh and the latter was successful as against Balwant Singh (appellant). In the year 1962 there had been some dispute over the crop of a certain field and a case under Section 145 Cr.P.C. was started between Balwant Singh (appellant) and one Prithipal Singh, a resident of Jwalapur. Chhuttan Lal (deceased) was appointed as the supurdar of the crop. He made a report (Ex. Ka-1) to the court in which the case under Section 145 Cr.P.C. was pending that Balwant Singh had forcibly cut and removed the crop which had been given into his custody. Chhuttan Lal (deceased) had also filed an affidavit (Ex. Ka-2) in support of Prithipals possession over the land in dispute. Mahant Narain Das had filed a civil suit against Balwant Singh for ejectment and arrears of rent and Chhuttan Lal was to appear as a witness in that case. Chhuttan Lal and. other residents of the village had also moved the canal department for taking some steps against Balwant Singh (appellant), who used to take water from the canal illegally and forcibly. The result was that there was considerable enmity between Balwant Singh and Chhuttan Lal. On the day of the occurrence, i.e. on September 28, 1963, Chhuttan Lal, accompanied by his son Dharam Singh (P.W. 1), had left his village at about 6 a.m. to meet one Rajendra Nath Malhotra (P.W. 6), tractor engineer, at Bahadurabad. Chhuttan Lal had purchased a tractor from Rajendra Nath Malhotra. On the day of the occurrence, i.e. on September 28, 1963, Chhuttan Lal, accompanied by his son Dharam Singh (P.W. 1), had left his village at about 6 a.m. to meet one Rajendra Nath Malhotra (P.W. 6), tractor engineer, at Bahadurabad. Chhuttan Lal had purchased a tractor from Rajendra Nath Malhotra. Certain defects had been noticed in that tractor and Chhuttan Lal had on September 27, 1963, informed Rajendra Nath Malhotra about those defects. The latter had asked Chhuttan Lal to meet him at Bahadurabad at about at 8 a.m. on the day following so that the parts of the tractor, which were not working properly, could be repaired or changed. Chhuttan Lal had, therefore, asked his son Dharam Singh to take those defective parts with him, and Dharam Singh was following Chhuttan Lal at a small distance. When they had gone for about one mile from village Ahmadpur Grant, Dharam Singh (P.W. 1) heard the alarm raised by his father Chhuttan Lal, and he at once rushed towards the place of occurrence. He saw that Deedar Singh armed with a spear and Balwant Singh, Kulwant Singh and Darbara Singh armed with lathis were causing injuries to Chhuttan Lal. Dharam Singh also raised an alarm which atttracted the attention of Sabhapati Singh (P.W. 2) and Indal Singh (P.W. 4) who had gone towards the canal to ease themselves and Bansi Lal (P.W. 5) and Kundan Singh (P.W. 7), residents of village Ahmadpur Grant. When the witnesses reached near the place of occurrence all the four accused persons ran away towards a grove which happened to be quite near the place of occurrence. Dharam Singh and other prosecution witnesses had on reaching near Chhuttan Lal found that he had been very seriously injured. Indal Singh went to bring a cot from his village Rohalki which is at a distance of about two and a half furlongs from the place of occurrence. After the cot had been brought the injured was placed on that cot and the party proceeded towards the pucca road. While they were waiting for the arrival of a tonga Dharam Singh wrote out a report which he handed over at the police station Jwalapur at 8 a.m. the same day. The place of occurrence was at a distance of four and a half miles from police station Jwalapur. While they were waiting for the arrival of a tonga Dharam Singh wrote out a report which he handed over at the police station Jwalapur at 8 a.m. the same day. The place of occurrence was at a distance of four and a half miles from police station Jwalapur. The occurrence as it had taken place and the names of the accused and those of the witnesses, who had seen the occurrence, were mentioned in the first information report. 3. According to the prosecution case Chhuttan Lal was alive and in his senses at the time he reached the police station. The investigating officer read out the first information report to him, and Chhuttan Lal stated before him that whatever was mentioned therein was true. He further told the investigating officer that Balwant Singh, Deedar Singh, Kulwant Singh and Darbara Singh had caused those injuries to him. 4. A case under Section 307 I.P.C. was registered against all the four appellants. Chhuttan Lal succumbed to his injuries before he could reach the hospital, and on the information being conveyed to the police station the case was altered to one under Section 302 I.P.C. 5. The usual investigation followed. The post-mortem examination on the dead body of Chhuttan Lal was performed by Dr. P.N. Khandari (P. W. 11) on the same day at 3.15 p.m. In the opinion of the doctor the probable age of the deceased must have been about 55 years and the probable time since death at the time of the post-mortem examination was about six hours. As a result of the external examination the doctor noticed that semen was coming out from external urethal meatus and the following ante-mortem injuries were there on the body of Chhuttan Lal (deceased):- (1) Eccymosis left lower eye-lid. (2) Contusion 3" x " on left side forehead and front of left temple vertically. (3) Lacerated wound 1" x ?"x skin on back left ear lower part. (4) Contusion 3" x 1" on front of left elbow with fracture of humerus and dislocation of the joint underneath. (5) Punctured wound ?"x " x 1" on back of left forearm lower 3rd directed downwards and outward and with fracture of both bones underneath. (6) Contusion 2" x 1" horizontally back left wrist with fracture of ulna at the lower end. (7) Diffused contusion 3" x 2" back left hand. (5) Punctured wound ?"x " x 1" on back of left forearm lower 3rd directed downwards and outward and with fracture of both bones underneath. (6) Contusion 2" x 1" horizontally back left wrist with fracture of ulna at the lower end. (7) Diffused contusion 3" x 2" back left hand. (8) Abraded contusion 6" x 1" obliquely on middle of back over spine and left side. (9) Diffused contusion 10" x 8" on left buttock and gluteal regions. (10) Punctured wound ?" x ?" x2" on outer side left knee directed downward and forward and with fracture of patella underneath. (11) Diffused abraded contusion 11" x 6" on outer side left knee and thigh above leg below. (12) Contusion 4" x 2" on left skin. (13) Punctured wound ?" x " on inner side of left elbow directed from below upwards and outward and with exit wound " x 4" above. (14) Contusion 3" x 1" on inner side of right elbow over injury No. 13 and with fracture of ulna underneath. (15) Two contusions each 4" x 1" and two inches apart horizontally in front and outer side of right hip. (16) Contused wound 1" x ?"x patella on right knee cap. (17) Contusion 3" x 1" on outer side right knee. 6. There were as many as seven fractures on the hands and legs of the deceased. The internal examination further revealed extra vessated blood over the lower part of left temporal region. In the opinion of the doctor death was due to shock and haemorrhage resulting from multiple fractures. The doctor was also of the opinion that the injured could have remained alive for four to five hours after the occurrence and could have also remained in his senses till the time of his death. 7. Five eye-witnesses, namely, Dharam Singh (P.W. 1) Sabhapati Singh (P.W. 2), Indal Singh (P.W. 4), Bansi Singh (P.W. 5) and Kundan Singh (P.W. 7) were examined in support of the prosecution case. Dharam Singh is a son of Chhuttan Lal (deceased). He was following Chhuttan Lal at some distance carrying the tractor parts on his head. He heard the shrieks of his father, and on running towards the place of occurrence he could see the occurrence. The remaining four eye-witnesses of the occurrence arrived there on hearing the shrieks of Chhuttan Lal and Dharam Singh (P.W. 1). He was following Chhuttan Lal at some distance carrying the tractor parts on his head. He heard the shrieks of his father, and on running towards the place of occurrence he could see the occurrence. The remaining four eye-witnesses of the occurrence arrived there on hearing the shrieks of Chhuttan Lal and Dharam Singh (P.W. 1). Indal Singh is a resident of village Rohalki, which is at a distance of 1 furlongs from the place of occurrence. Sabhapati Singh (P. W. 2) is a resident of Jwalapur. On September 27, 1963 he had gone to village Rohalki to have a talk with Indal Singh about the purchase of a site for setting up an industry. He had stayed at the place of Indal Singh that night, and on the morning of September 28, 1963 both Sabhapati Singh and Indal Singh had gone towards the canal to answer the call of nature, when they had heard the shrieks of Dharam Singh and Chhuttan Lal. Bansi Lal and Kundan Singh (P.Ws. 5 and 7) are residents of village Ahmadpur Grant. They also explained how they happened to reach near the place of occurrence when they heard the shrieks of Chhuttan Lal and Dharam Singh and on going near the place of occurrence actually witnessed the occurrence. All the five witnesses fully supported the prosecution case. Rajendra Nath Malhotra (P.W. 8) was also examined in support of the prosecution case that there was a fixture between him and Chhuttan Lal for the 28th morning as alleged by the prosecution witnesses. 8. All the four accused persons (appellants) pleaded not guilty and explained that they had been falsely implicated due to enmity. They also pleaded alibi. Balwant Singh led evidence to show that he was at Saharanpur on September 28, 1963, and had moved an application in the court of Munsif, Saharanpur, on that day. No other evidence was led on behalf of the accused persons (appellants). It was, however, suggested on their behalf that they had been falsely implicated at the instance of Nahat Narain Das of Ambala and one Prithipal Singh of Jwalapur, who were on inimical terms with Balwant Singh; Kulwant Singh (appellant) is the son-in-law of Balwant Singh. Kulwant Singh and Darbara Singh lived in village Sahadeopur which is at a distance of about one mile from village Ahmadpur Grant. Kulwant Singh and Darbara Singh lived in village Sahadeopur which is at a distance of about one mile from village Ahmadpur Grant. The case of the accused persons further was that they had been falsely implicated due to enmity. 9. The learned Sessions Judge, after having considered the entire evidence on the record, arrived at the conclusion that the prosecution witnesses were reliable and the occurrence had taken in the manner started by the prosecution witnesses. He found that Balwant Singh had moved an application in the court of the Munsif on September 28, 1963, but that circumstance did not establish that Balwant Singh could not be at the place of occurrence at about 6-30 a.m. The learned Sessions Judge observed that it was possible for Balwant Singh to have travelled from the place of occurrence to Saharanpur and reaches there well in time to move an application in the court of Munsif at Saharanpur. The learned Sessions Judge further observed that there was no delay in lodging the first information report and there was nothing on the record to show that Mahant Narain Das of Ambala or Prithipal Singh of Jwalapur could have been consulted before the first information report was lodged. He, therefore, convicted and sentenced all the four accused persons (appellants) under Section 302 read with Section 34 I.P.C. 10. The points for consideration in this appeal are :- (1) Whether the eye-witnesses in the case are reliable and the appellants were responsible for causing the injures to Chhuttan Lai; and (2) What was the common intention of all in furtherance of which those injuries were caused. 11. We have heard the learned counsel for the appellants and examined the entire evidence led in the case. Nothing could be pointed out to us why the eyewitnesses account given by the prosecution witnesses should not be relied upon. Dharam Singh (P.W. 1) is the most natural witness of the occurrence, because he was accompanying his father to meet Rajendra Nath Malhotra, (P.W. 6) at Bahadurabad. Since certain old parts of the tractor had to be carried to Bahadurabad it is but natural that Chhuttan Lal, who was an old man, took his son with him to carry those parts. Since certain old parts of the tractor had to be carried to Bahadurabad it is but natural that Chhuttan Lal, who was an old man, took his son with him to carry those parts. Dharam Singh had to carry some load, and in the circumstances it is not at all strange that he could not keep pace with Chhuttan Lal and was not walking side by side with him at the time the occurrence took place. Indal Singh (P.W. 4) is a resident of village Rohalki, which is at a distance of only two and a half furlongs from the place of occurrence. lie along with Sabhapati Singh (P.W. 2) had gone towards the canal side to ease themselves. It was contended that no reliance could be placed on Sabhapati Singh because he was a resident of Jwalapur to which place he should have returned after his talks with Indal Singh were over on September 27, 1963. In our opinion the testimony of Sabhapati Singh cannot be discarded on that ground. He has given his reasons for staying at the place of Indal Singh on the night of September 27, 1963, and they appear to be quite plausible. In the circumstances both Sabhapati Singh and Indal Singh could have been near the place of occurrence when the occurrence took place. 12. Bansi Lal (P.W. 5) is a resident of village Ahmadpur Grant. He, accompanied by Kundan Singh (P.W. 7), was also going to Bahadurabad to purchase seed from there and they were a few paces behind Chhuttan Lal and Dharam Singh when they heard the alarm raised by them. All that could be said against Bansi Lal was that he had filed an affidavit in support of the case of prithipal Singh against Balwant Singh and he had also moved an application to the Canal Department against Balwant Singh making unauthorised use of canal water. We see no reason to discard the statement of Bansi Lal (P.W. 5) on that account. Kundan Singh (P.W. 7) is a resident of village Ahmadpur Grant. All that could be suggested to him was that his brother was a ploughmen of Chhuttan Lal and that the latter had stood as a surety for him in a criminal case. We see no reason to discard the statement of Bansi Lal (P.W. 5) on that account. Kundan Singh (P.W. 7) is a resident of village Ahmadpur Grant. All that could be suggested to him was that his brother was a ploughmen of Chhuttan Lal and that the latter had stood as a surety for him in a criminal case. Both these allegations were denied by Kundan Singh with the result that there is nothing on the record to show that Kundan Singh was at all interested in Chhuttan Lal or opposed to Balwant Singh. 13. There can be no doubt that the occurrence had taken place in broad daylight. The first information report of the occurrence was made at 8 a.m. It was suggested to Dharam Singh (P.W.1) during the course of cross-examination that he and his father must have left their village at about 7 in the morning. It was also suggested to him that the assailants of Chhuttan Lal had dhatas on their faces. If anything at all can be inferred from those suggestions, it is that the defence was not seriously disputing that the occurrence had taken place during day time. 14. The first information report was lodged without any delay. In the circumstances of the case Dharam Singh had no opportunity to consult Mahant Narain Das of Ambala or Prithipal Singh of Jwalapur who had some litigation with Balwant Singh and could be said to be opposed to him. Besides, as observed by the learned Sessions Judge, he was not expected to have omitted the names of real assailants of his father Chhuttan Lal merely to implicate enemies of Balwant Singh. 15. The post mortem examination of Chhuttan Lal revealed that semen was coming out of external urethral meatus. It was, therefore, contended by the learned counsel for the appellants that in all probability Chhuttan Lal had not been injured in the circumstances alleged by the prosecution but at a time when he was enjoying some illicit intercourse with some woman. There can be no justification for such an argument. The medical officer who performed the post-mortem examination has clearly stated that same could come out as a result of a shock. Modi in his well-known treatise also says the same thing vide 13th Edition, page 154. There can be no justification for such an argument. The medical officer who performed the post-mortem examination has clearly stated that same could come out as a result of a shock. Modi in his well-known treatise also says the same thing vide 13th Edition, page 154. In our opinion the fact that semen was coming out of external urethral meatus at the time of the post mortem examination hardly disproves the prosecution, case. 16. Agreeing with the learned Sessions Judge, we see no reason to discard the testimony of the eye-witnesses of the occurrence. We believe them, and hold that the occurrence had taken place in the manner alleged by the prosecution and all the four appellants were responsible for having caused the injuries to Chuttan Lal with the weapons held by them, that is, Deedar Singh with a spear and the remaining three appellants with lathis. 17. It has been contended by the learned counsel for the appellants that looking at the nature of the injuries caused to Chhuttan Lal and other facts and circumstances attending the case it cannot be said that the common intention of the appellants was to cause the death of Chhuttan Lal. With the exception of two simple injuries-one contusion on the left side forehead and the other a lacerated wound on the back of the left ear (injuries Nos. 2 and 3)-all other injuries are on the hands and feet of Chhuttan Lal. Three spear injuries were caused to Chhuttan Lal. One of them was on the back of the left forearm, the other was on the other side left knee and the third on inner side of left elbow. Some of these injuries must have been caused to Chhuttan Lal after he had fallen down on the ground. However, it is clear that no attempt was made to cause any injury to him with the spear on any vital part of his. body, such as head, chest or abdomen. The lathi blows also appeared to have been directed mostly on his arms and legs, causing as many as seven fractures in all. 18. The common intention of the appellants has to be gathered from their act. It is true that they had started the attack on Chhuttan Lal almost simultaneously and all the four of them had run away together after having caused injuries to Chhuttan Lal. 18. The common intention of the appellants has to be gathered from their act. It is true that they had started the attack on Chhuttan Lal almost simultaneously and all the four of them had run away together after having caused injuries to Chhuttan Lal. It is also evident that all of them are connected to Balwant Singh in one way or the other. Deedar Singh is the son of Balwant Singh, while Kulwant Singh is his son-in-law. There is no relationship between Darbara Singh and Balwant Singh, but it has come in evidence that Darbara Singh and Kulwant Singh reside in the . same village. Deedar Singh and Kulwant Singh could have shared the enmity which Balwant Singh bore towards Chhuttan Lal. Darbara Singh appears to have joined in the attack because of Kulwant Singh who is a resident of his village. 19. There was no strong motive for Balwant Singh and others to have tried to put an end to the life of Chhuttan Lal. 20. It is true that there was a good deal of ill-feeling between Balwant Singh on the one hand and Chhuttan Lal on the other, but that could not be regarded to be a strong motive for causing the death of Chhuttan Lal. In the circumstances, the common intention of the all the four appellants appears to have been to cause grievous hurt to Chhuttan Lal with the weapons which they held. 21. It has been contended by the learned counsel for the complainant that the case against the appellants would fall under the first Part of Section 304 I.P.C. and not under Section 326 read with Section 34 I.P.C. because the intention to cause such bodily injury as is likely to cause death must be inferred from the facts and circumstances of the case. In our opinion there is no force in this argument. All that can be safely inferred from the facts and circumstances of the case is that the common intention of all the four appellants : was to cause grievous hurt with lathis and spear held by them. All of them can, therefore, be convicted only under Section 326 read with Section 34 I.P.C. In our opinion the ends of justice would be met if each of the appellants is sentenced to seven years rigorous imprisonment under Section 326 read with Section 34 I.P.C. 22. All of them can, therefore, be convicted only under Section 326 read with Section 34 I.P.C. In our opinion the ends of justice would be met if each of the appellants is sentenced to seven years rigorous imprisonment under Section 326 read with Section 34 I.P.C. 22. The appeal is allowed in part. The conviction and sentences of all the four ; appellants under Section 302 read with Section 34 I.P.C. are set aside and they are instead convicted under Section 326 read with Section 34 I.P.C. and each f sentenced to seven years rigorous imprisonment. Deedar Singh appellant is in jail. The remaining three appellants are on bail. They must surrender to their bail forthwith. All the four appellants shall serve out the sentence as now imposed upon them.