JUDGMENT H.C.P. Tripathi, J. - These six appellants have been convicted by the learned Sessions Judge of Deoria of offences under sections 323 and 302 both read with I section 149 I.P.C. and each of them has been sentenced to nine month's rigorous imprisonment under the former charge and to imprisonment for life under the latter. All of them, except Brij Nath, have been further convicted under section 147 I.P.C. and under section 324 read with section 149 I.P.C. and sentenced to one year's rigorous imprisonment under each count. Brij Nath has been convicted under section 324 I.P.C. simpliciter and under section 148 I.P.C. and sentenced to one year's rigorous imprisonment and two year's rigorous imprisonment respectively. The sentences of the appellants under the various counts have been directed to run concurrently. 2. Appellants Ramu and Ambika who are real brothers are nephews of Lorik. Appellants Brij Nath and Gatti are sons of appellant Lalai, a cousin of Lorik. All of them reside in village Chintamani Chak within the jurisdiction of police station Ramkola in the district of Deoria. Jangali (deceased), his uncle Dhanraj (P.W. 1) and Ram Chand, father of Dhanraj were neighbours. 3. The accusations against the appellants in short were that on Nov. 18, 1963 at about 4 p.m. all of them having armed themselves with lathis, except Brij Nath who had picked up a chopper (gandasi), formed an unlawful assembly and in prosecution of its common object committed the murder of Jangali and caused injuries to some of the prosecution witnesses. 4. The prosecution story lies in a narrow compass. 5. These appellants and complainant Dhanraj and his family members resides in neighbouring houses in the village. Dhanraj owns a field which lies adjacent to the west of the cattle shed of appellant Ramu. He had stored some sugarcane leaves on a portion of f his field. Ramu was anxious to encroach upon a portion of this field for stortng his cow dung cakes. On Nov. 18, 1963 at about 2 p.m. Dhanraj received information from his children that Ramu, Lorik and Ambika had scattered his deep of sugarcene leaves. Accompanied by Jangali, Bhawan, Ram Chandra and Ram Gatti he went to the field and with their help collected the scattered sugarcane leaves and put them again on the former place. Thereafter they returned to the door of Dhanraj and sat there. Accompanied by Jangali, Bhawan, Ram Chandra and Ram Gatti he went to the field and with their help collected the scattered sugarcane leaves and put them again on the former place. Thereafter they returned to the door of Dhanraj and sat there. At about 4 p.m. these appellants out of whom Brij Nath was armed with a Gandasi and the rest were carrying lathis arrived on the scene crying to beat them and made a concerted attack on Dhanraj and his companion with their respective weapons. Brij Nath delivered one blow on Bhawan with his Gandasi while other wielded their lathis against Ram Chandra, Jangali, Ram Gatti and Dhanraj. On the alarm raised by the victims Badri and Kedar arrived at the spot and witnessed the occurrence. It is alleged that as Dhanraj had some of his pegs stationed in front of the hut of Lorik, Lorik was nurturing a grudge against him since before. 6. Dhanraj carried the injured on a bullock cart to police station Ramkola seven miles away, where he lodged a written report of the occurrence at about 6-30 p.m. in which he gave the essentials of the prosecution story and nominated these six appellants as the persons responsible in causing him and the prosecution witnesses various injuries. On the basis of this report a case was registered and investigation followed. 7. All the injured were taken to the hospital at Captanganj during the same night where they were medically examined. As Jangli's condition was found to be serious he was sent to the Sadar Hospital, Deoria, for further medical treatment, Jangli, however, succumbed to his injuries at the hospital. 8. Sub-Inspector Hari Nandan Singh (P.W. 9) reached the village on 19-1l. 1963. He inspected the scene of occurrence and prepared a site plan. He found blood stains in front of the door of Dhanraj and took sample of the blood stained earth. 9. Ram Chandra, Ram Gatti, Dhanraj and Bhawan were medically examined by Dr. Brijendra Kumar (P.W. 1) in the hospital at Captanganj in the night of 18th and 19th of November, 1963 between 2-40 and 3-20 a.m. Ram Chandra, Ram Gatti and Dhanraj each had there simple injuries caused by some blunt weapon of about half day's duration. 9. Ram Chandra, Ram Gatti, Dhanraj and Bhawan were medically examined by Dr. Brijendra Kumar (P.W. 1) in the hospital at Captanganj in the night of 18th and 19th of November, 1963 between 2-40 and 3-20 a.m. Ram Chandra, Ram Gatti and Dhanraj each had there simple injuries caused by some blunt weapon of about half day's duration. Bhawan had three simple injuries of the same duration including one incised wound with clean cut margins having been caused by some sharp edged weapon like a Gandasi ( xM+klh) The other two injuries were the result of blows from some blunt object. 10. The post mortem examination on the dead body of Jangli was conducted by Dr. K. N. Jauhari(C.W. 1) on 20th November, 1963 at 8-30 p.m. The deceased was about 40 years of age and had died about 18 hours earlier. The following ante mortem injuries were found: 1. Contused wound 1 " x on of head 4" from the left ear. 2. Swelling 4" X 3W round injury no. 1. 3. Contused wound X on the front of left leg 3" below the knee. 4. Abrarsion "x " on the front of right leg 3" below the knee and swelling of upper half of right leg. On internal examination multiple fractures of the left parietal bones and fracture extending from the front to the back of the bone and extravasation of clotted blood on the left side of the skull were found. Brain was found lacerated and there was fracture of right tibia and fibula in the upper one third of the left leg. Death in medical opinion was due to shock and hemorrhage as a result of the injury to the head which was sufficient in the ordinary course of nature to bring about that result. 11. At the trial appellants pleaded not guilty to the charges. Before the court of the committing Magistrate each one of them denied to have participated in the occurrence and stated to have been falsely implicated in the case on account of enmity with the witnesses. Before the court of sessions, however, Ramu, Lalai, Lorik and Ambika adhered to their previous statement, but Brij Nath and Gatti trotted out a counter version, Brij Nath stated that in a Panchait of the village community Lachhan, a cousin of Dhanraj, accused his wife of unchastity which led to an altercation between them. Before the court of sessions, however, Ramu, Lalai, Lorik and Ambika adhered to their previous statement, but Brij Nath and Gatti trotted out a counter version, Brij Nath stated that in a Panchait of the village community Lachhan, a cousin of Dhanraj, accused his wife of unchastity which led to an altercation between them. Lachhan, Dhanraj and Jangli (deceased), attacked him with lathis whereupon a fight ensued between them on the one hand and Brij Nath, his brother Gatti and Bikau on the other in which both parties had received injuries. 12. The case of the prosecution rested on the testimony of Dhanraj, Badri Nara-in, Bhawan and Ram Chandra (P.Ws 1, 3, 7 and 8) who were examined as eyewitnesses of the occurrence. Dhanraj, Bhawan and Ram Chandra who had received injuries during the incident stated to have been assaulted by all these appellants who had also caused injuries to Jangli which had resulted in his death. Badri Narain who does not belong to their fraternity stated to have seen appellants Ambika, Ramu, Gatti and Brij Nath assaulting Dhanraj, Ram Chandra, Jangli and others with their respective weapons. He had added that he saw the other two appellants namely Lalai and Lorik also present there but could not say whether they had participated in assault. 13. Kedar Kath (P.W. 6) furnished circumstantial evidence and testified to have seen the appellants variously armed running away from the place just after the happening of the event. 14. Sheo Puajan, who was examined in defence, supported the story put forward by Brij Nath in his statement before the sessions court. 15. The learned Sessions Judge on an assessment of evidence reached a conclusion that the defence version put forward by Brij Nath and his witness Sheo Pujan was wholly incredible and that the prosecution has succeeded in establishing the various charges against the appellants. Accordingly he convicted and sentenced them as has been stated above. 16. Mr. S.N. Misra, learned counsel for the appellants, has strenuously contended that the participation of Lorik and Lalai in the occurrence is highly doubtful and the facts and circumstances of the case do not indicate that there was any unlawful assembly as alleged by the prosecution or that its object was to commit the or murder of Jangli. 16. Mr. S.N. Misra, learned counsel for the appellants, has strenuously contended that the participation of Lorik and Lalai in the occurrence is highly doubtful and the facts and circumstances of the case do not indicate that there was any unlawful assembly as alleged by the prosecution or that its object was to commit the or murder of Jangli. Learned counsel contends that as the appellants and Jangli (deceased) belong to the same fraternity and were neighbours in the village and as there is no background of enmity between the parties the object of the assailants of Jangli, Dhanraj and others was only to chastise them on account of the quarrel which appears to have suddenly developed between them on some trivial matter and not necessarily to commit the murder of anyone of the victims. It is urged that in these circumstances specially in view of all the injuries received by Jangli and other injured persons, except one, being simple in nature the conviction of all the appellants on a charge of murder with the help of section 149 of the Indian Penal Code is not sustainable. 17. Out of the four eye-witnesses examined in the case three who are injured belong to the same family. Although their presence at the scene of occurrence cannot be doubted their evidence has to be taken with a certain amount of caution. Badri (P.W.3) is a wholly independent witness belonging to a different community and having no background of enmity with the appellants or of particular affinity with the complainant. Each one of the injured has stated that he had seen the incident. Badri has categorically stated that he saw only Ambika, Ramu, Gatti and Brij Nath out of whom Brij Nath was armed with a Gandasi and rest with lathis assaulting Jangli and his family members and then running away from the scene. He has added further that none else was participating in the assault. Having made such a categorical statement he, however, added that there were five and six assailants and the persons present in the dock were amongst them but he could not say whether appellant Lalai and Lotik had participated in the actual assault. He has added further that none else was participating in the assault. Having made such a categorical statement he, however, added that there were five and six assailants and the persons present in the dock were amongst them but he could not say whether appellant Lalai and Lotik had participated in the actual assault. It is, therefore, obvious that in view of the categorical statement of this witness that he had seen only four of the appellants participating in the assault on Jangli and others and that he was not sure whether Lalai and Lorik had taken part in the marpit it is not possible to affirm the conviction of Lalai and Lorik on the various charges. Even if Lalai and Lorik were present on the scene, at has been haltingly added by the witness, it cannot be held that they were necessarily there as members of the unlawful assembly. In view of the fact that their residential huts are close to the scene their presence as innocent spectators cannot be ruled out. In our opinion, therefore, Lalai and Lorik are entitled to the benefit of reasonable doubt. 18. Then there remains the case of the other four appellants namely Ramu, Brij Nath, Gatti and Ambika. As we have held the case against Lalai and Lorik to be highly doubtful the charge under section 147 I.P.C. automatically fails. The question which requires consideration is as to what was the common intention of these four appellants when they had made an assault on Jangli and his companions. 19. As has been stated above there is no background of enmity between the parties and the trouble seems to have started at the spur of the moment. Each one of these appellants, except Brij Nath, was armed with a lathi and Brij Nath had a Gandasi which is used for chopping fodder. The injuries received by the victims are all simple in nature except one injury on Jangli which was grievous and had ultimately led to his death. In our opinion, therefore, the common intention shared by each of these appellants appears to have been only to beat their victims and not to commit the murder of any one of them and the fatal injury caused to Janglj appears to have been the individual act of the assailant responsible for the same. In our opinion, therefore, the common intention shared by each of these appellants appears to have been only to beat their victims and not to commit the murder of any one of them and the fatal injury caused to Janglj appears to have been the individual act of the assailant responsible for the same. It is, however, obvious that when all these appellants went armed with lathis to chastise their victims they must have known that their weapons were likely to produce grievous injuries. In this view even those who were not responsible for having caused the fatal injury would be guilty for an assault on Jangli for an offence under section 325 I.P.C. while the person responsible for giving the fatal injury alone would be liable under section 302 I.P.C. 20. Dhanraj and Bhawan (P.Ws. 1 and 7) have stated that Ambika had wielded a powerful blow with his lathi on the head of Jangli who under its impact fell on the ground. It is true that there is no mention of this fact in the first information report and it appears before the Investigating Officer also that they had not made this statement. That, however, is no reason for not relying on the evidence furnished by them on this part of the case. It is obvious that there being only one injury on the head of Jangli only one of these appellants is responsible for the same and if Ambika had not caused that injury there is no reason why Dhanraj and Bhawan who were in the midst of that fight and must have noticed the real person would have attributed it to him. We are, therefore, inclined to place reliance on this part of their testimony and hold that Ambika alone is liable for the fatal injury caused to Jangli for which he had been charged alternatively under section 302 simpliciter by the learned Trial Judge, and the other three appellants must be held guilty under section 325 read with section 34 I.P.C. for the fatal injury caused to Jangli by Ambika. 21. The evidence on record establishes beyond doubt that in furtherance of their common intention these appellants had caused simple injuries to Ram Chandra, Dhanraj, Ram Gatti and Bhawan one of which had been inflicted by a sharp cutting instrument. 21. The evidence on record establishes beyond doubt that in furtherance of their common intention these appellants had caused simple injuries to Ram Chandra, Dhanraj, Ram Gatti and Bhawan one of which had been inflicted by a sharp cutting instrument. It is, therefore, obvious that each one is liable to be convicted under section 323 and 324 both read with section 34 I.P.C. 22. It is not necessary to dilate on the defence version of the occurrence as the learned counsel for the appellants has not placed any reliance on the same and in our opinion rightly so. There is nothing to suggest that any one of these appellants had received even a scratch on their person and, therefore we un-hesitatingly agree with finding of the learned trial Judge that their story that, some of them had inflicted injuries on some of the prosecution witnesses and Jangli in self defence is wholly incredible. 23. In the result the appeal of Lalai and Lorik is allowed. Their conviction and sentences under the various counts as recorded by the trial Judge are set aside. They are on bail. Their bail bonds are f discharged. They need not surrender. 24. The conviction and sentence of Brij Nath under section 148 I.P.C. and that of Ramu, Gatti and Ambika under section 147 I.P.C. are set aside. 25. The conviction of Ramu, Brij Nath and Gatti under S 302 read with S. 149 I.P.C. and the sentence of life imprisonment inflicted on each of them by the trial court are set aside. Instead they are convicted for offence under Section 325 read with Section 34 I.P-C. for the fatal injury caused to Jangli by Ambika and each one of them is sentenced to five I years' rigorous imprisonment. 26. The conviction of Ambika under section 302 read with section 149 I.P C. is altered to one under section 202 I.P.C. simpliciter with which he was alternatively charged by the trial court and the sentence of imprisonment for life imposed on him is maintained. 27. The conviction of appellants Ramu, Brij Nath, Gatti and Ambika for offences under sections 323 and 324 I.P.C. read with section 149 I.P.C. is altered to one under sections 323 and 324 both read with section 34 I.P.C. but the sentences imposed on them by the trial court for those offences are maintained. 28. 27. The conviction of appellants Ramu, Brij Nath, Gatti and Ambika for offences under sections 323 and 324 I.P.C. read with section 149 I.P.C. is altered to one under sections 323 and 324 both read with section 34 I.P.C. but the sentences imposed on them by the trial court for those offences are maintained. 28. The sentences of imprisonment awarded to each of the appellants under the various counts are directed to run concurrently. Appellants Brij Nath, Ramu, and Gatti are on bail. Their bail bonds are cancelled. They must surrender themselves forthwith to serve out the sentences awarded to them by this Court.