JUDGMENT M. Wahajuddin, J. 1. Accused persons Bankey Lal, Hakim alias Gaya Prasad, Arjun, Sri Kishan, Lalman, Desh Raj and Brindaban have all been convicted by the then II Additional Sessions Judge, Farrukhabad, under Section 302/149, IPC and have been awarded life imprisonment each. The first four aforesaid accused persons have been further convicted under Section 148, IPC and awarded three years' R. I. each, while the remaining three accused persons have been further convicted under Section 147, IPC and awarded one year's R.I. each. All the sentences have been made concurrent. Lalman, Brindaban and Desh Raj have preferred Criminal Appeal No. 2217 of 1976, and the remaining four accused persons have preferred Criminal Appeal No. 2320 of 1976, directed against their convictions and sentences awarded to them. Appellant Sri Kishan died during the pendency of his appeal and his appeal has abated. 2. The victim Shanker Lal is the brother of Jagannath (PW 1) the maker of the report. All the accused persons belong to village Alidadpur, Police Station Mohammadabad, district Farrukhabad. Jagannath (PW 1), Jhamman Lal (PW 2), Raja Ram (PW 8) and the victim also belong to that very village. Raghunath (PW 4) is a resident of Beergaon in :he same Police Station. The prosecution case in brief is that on 30-8-75 Shanker Lal deceased furnished information to the police concerning theft of Transformer wire by the aforesaid accused persons, other than Desh Raj, as well as involving one Mohan and the police carried a raid; and while it succeeded in recovering the stolen wire from the field of Lalman accused at the instance of Shanker Lal, the culprits managed to escape. According to the prosecution, the accused persons got inimical towards Shanker Lal on account of the same. It is alleged that in the early morning of 1-9-1975 Shanker Lal had gone to Nagla Baburi for realising his dues and was returning back from there to his village and on way at about 7 A. M. he was accosted by the seven accused persons in the north-west corner of the field of Ram Swarup Jatav, situate at the outskirts of village Alidadpur, and was dragged inside thai field. The victim raised alarm, which attracted the witnesses. The victim raised alarm, which attracted the witnesses. Lalman, Desh Raj and Brindaban caught hold of the victim, while the remaining three accused persons other than Sri Kishan inflicted knife injuries upon the victim with the intention to kill him. It is, further, alleged that the culprits deputed) on being challenged by the witnesses and while running away Sri Kishan accused fired a pistol shot, which hit Shanker Lal. It is alleged that Sri Kishan further put off his blood-stained Paijama and threw there. Shanker Lal died at the spot. Jagannath got his report scribed by Jai Singh (PW 6) and proceeded to Police Station Mohammadabad, the distance being 5 miles, and lodged it there. 3. Radhey Shyam Pathak (PW 5), the then Head Moharrir of Police Station Mohammadabad, prepared the Check (Ext. ka. 2) in pursuance of the written report (Ext. Ka. 1) and registered a case in the General Diary vide G. D. entry (Ext. ka. 3), Narain Prasad (PW 9), the then Sub-Inspector, II, in absence of the Station Officer, Police Station Mohammadabad, conducted the investigation. He proceeded to the place of the incident on the same day and found the dead body of Shanker Lal in the Jwar Bajra field of Ram Swarup, as shown in site plan (Ext. ka. 12). He held the inquest on the dead body and prepared the relevant papers and the dead body was despatched to the mortuary duly sealed, through Constable Wasih Uddin (PW 3) and another Constable. He interrogated the witnesses of the inquest and the prosecution witnesses Jagannath, Jhamman Lal, Raja Ram and one Ram Das. He also prepared site plan after spot inspection. He found 7 shots and two wads at the spot, which were taken into custody and sealed vide memo Ext. Ka.-13. He also took blood stained and ordinary earth from the spot and sealed it vide memo Ext. Ka. 14. According to him one blood-stained Paijama was also found there and was sealed at the spot. He retimed, back to the Police Station on the same day and deposited the case property there. The accused persons could not be found inspite of search. On 9-9-75 he interrogated Raghunath (PW 4). The search of the accused persons continued. Information was received on 19-9-1975 that Sri Kishan is in jail and he interrogated him there. The remaining six accused persons were interrogated on 25-9-1975. The accused persons could not be found inspite of search. On 9-9-75 he interrogated Raghunath (PW 4). The search of the accused persons continued. Information was received on 19-9-1975 that Sri Kishan is in jail and he interrogated him there. The remaining six accused persons were interrogated on 25-9-1975. After completing the investigation, he submitted a charge-sheet (Ext. Ka. 16) on 26-9-1975, 4. All the accused persons pleaded not guilty and maintained to have been falsely implicated due to enmity. The prosecution in all examined 9 witnesses in this case. Wasi Uddin, Radhey Shyam Pathak and Jai Singh are formal witnesses and we have already made a mention of them. Narain Prasad (PW 9) is the Investigating Officer. Dr. K. S. Misra (PW 7) has given medical evidence and the remaining four witnesses, namely, Jagannath (PW 1) Jhamman Lal (PW 2), Raghunath (PW 4) and Raja Ram (PW 8) have been examined as eye witnesses. 5. The defence has also examined one witness Gokul Singh (DW 1), who has proved the G. D. entry of 29-5-76 (Ext. Kha-3) recorded by Surendra Singh S. I. 6. Before dealing with the eye witnesses,' we may refer to the medical evidence in this case. The statement of Dr. K. S. Misra (PW 7) coupled with bis post mortem report (Ext. ka. 6) would show that Dr. Misra conducted the post mortem on the dead body of Shanker Lal on 2-9-1975 at 3 P.M. and he found the following antemortem injuries upon his person :- Injury No. 13 according to him was caused by a fire arm, while the remaining 14 injuries were caused by sharp edged weapon including knife. In the opinion of the doctor death of the victim was due to shock and haemorrhage as a result of his injuries, specially injuries nos. 4 to 7 caused by a double sharp edged pointed weapon. The duration of death given by the doctor is 1-1/2 days, which would agree with the time of the incident set up by prosecution. According to the doctor, the death may have resulted about eight hour after taking some meals. From his cross examination and re-examination it would appear that the injuries noted by him as punctured wound would be possible by knife, only when it had sharp edges on either side with 1" point. According to the doctor, the death may have resulted about eight hour after taking some meals. From his cross examination and re-examination it would appear that the injuries noted by him as punctured wound would be possible by knife, only when it had sharp edges on either side with 1" point. The medical evidence, thus, does not over rule; the likelihood of all the injuries, other than injury no. 13, having been caused by knife and it cannot be urged that the punctured wounds cannot be by knife. In fact, knives are of both the types, namely, having edges only on one side as well as having edges on both the sides with points. So medical evidence is consistent with the direct evidence on the point of weapons used. One shot is said to have been fired by fire arm and such injury, namely injury no. 13, also exist. The duration of death again agrees and is consistent with the time of incident set up by the prosecution. 7. We may now proceed to consider the evidence of the eye witnesses. PW 1 Jagannath, the maker of the report, is the most important witness of this case. His evidence would show that the field of Ram Swarup Jatav, where the injuries are said to have been inflicted, is; adjacent to and in north of his own field in Alidadpur. His evidence would further show that any person coming from village Bipar Gaon to Alidadpur will have to pass through the Pagdandi to the west of Ram Swarup's field. He has also stated that the aforesaid Pagdandi about his own field and that of Ram Swarup. According to him, on the date of incident Shanker Lal had gone to village Baburi in the early morning to collect his dues from Chhedami and was returning back from there to his village. The witness was in his aforesaid field for keeping a watch over Makka crop. At about 7 A. M. when Shanker Lal reached the North-western corner of the aforesaid field of Ram Swarup, the witness, who was in his own field, heard the alarm of Shanker Lal Save, I am killed'. The witnesses then rushed towards the scene of incident and saw all the seven appellants dragging Shanker Lal to the aforesaid Jwar field of Ram Swarup. The accused persons started belabouring Shanker Lal. The witnesses then rushed towards the scene of incident and saw all the seven appellants dragging Shanker Lal to the aforesaid Jwar field of Ram Swarup. The accused persons started belabouring Shanker Lal. Appellants Bankey Lal, Arjun and Hakim were armed with knife and inflicted knife injuries. Sri Kishan was armed with pistol. Others were bare handed. He has further stated that Jhamman Lal, Raja Ram, Raghunath and Ram Das also saw the incident. When the witnesses challenged the miscreants started running away. Sri Kishan then fired at Shanker Lal, which hit Shanker Lal. The miscreants were chased for 10-20 paces and then the witnesses returned due to fear. Shanker Lal died at the spot. The witness dictated his report to Jai Singh at the spot and then proceeded to Police Station and lodged it. 8. Deposing on motive he stated that on 30-8-1975 Shanker Lal had furnished information to the Police regarding the theft of transformer wire, which was also recovered from the field of Lalman, and in that case Gaya Prasad, Bankey, Arjun, Lalman, Brindaban and Sri Kishan figured as accused and they had run away from the field at; the time of the recovery. In cross- examination he stated that the population of the village is about 250-300. The village abadi is North-South long. According to him there is also a Nali of Tube No. 36 and the old Abadi is in North, while there are other houses in the South. He denied the suggestion that Lalman held some land jointly with Nathu and after consolidation gave i\i to Nathu. He admitted that Nathu filed a suit for partition against him, which is pending. In that case Lalman appeared against him as a witness and not Arjun. He further admitted that in 1965 on the report of Lalman, the police prosecuted him, his brother Ram Prasad, Mithu and Pyare. According to him he proceeded to the Police Station on cycle and it took about 3/4 hour to cover the distance. The Head Constable was there when he lodged the report and the Investigating Officer Narain Prasad then met him there. He denied the suggestion that he and Shanker Lal knew Narain Prasad from much before. According to him, they came to know him when the aforesaid information was given to the police on 30-8-1975. The Head Constable was there when he lodged the report and the Investigating Officer Narain Prasad then met him there. He denied the suggestion that he and Shanker Lal knew Narain Prasad from much before. According to him, they came to know him when the aforesaid information was given to the police on 30-8-1975. Any written information was not lodged and only Shanker Lal had gone to the Police Station and the police came to Lalman's field with him at about 9.30 or 10 A. M. on 30th August. He admitted that in the report relating to this case he did not mention that the accused persons in that case were chased and then escaped leaving the wire. He and Shanker Lal reside separately, but before proceeding to Baburi on 1-9-1975 Shanker Lal did meet him at the Baithak of the witness at about 5.30 A. M. Shanker Lal had sold the bullocks to Chhadami of village Baburi and the dues related to the same. Baburi is 2-1/2 furlongs north-wards from the aforesaid field of Ram Swarup. Bajra crop of man's height was standing in Ram Swarup's field in North direction and in Sia Ram's field in West Makka crop of man's height was standing. In his own field, which is in South-west of Ram Swarup's field, Makka crop of more than man's height was standing. The field in north of Ram Swarup's field was vacant. The witness himself reached his field at about 6 A. M. He does not sleep there in the night. It would appear that this field is a part of a big field of 9 Bighas, in which his other brother had also a share. His aforesaid portion was in West and was exclusive. The witness stated that on hearing the alarm, he rushed to the field of Ram Swarup and in his presence infliction of injuries continued for about five minutes. He was standing at a distance 10-12 paces. Only the aforesaid four others had arrived at the time of incident. The other residents of the village arrived after the miscreants had departed. The witness stated that on hearing the alarm, he rushed to the field of Ram Swarup and in his presence infliction of injuries continued for about five minutes. He was standing at a distance 10-12 paces. Only the aforesaid four others had arrived at the time of incident. The other residents of the village arrived after the miscreants had departed. It would no doubt appear that in his statement under Section 161, CrPC the witness made a loose and general statement that the villagers had arrived and saw the incident, but undue significance to the same cannot be given, when it is found that in the first information report also his version was the same as given in the trial court and only four other persons were said to have arrived and seen the incident. It would further appear that he had in his over zeal stated that Sri Kishan had put off his Paijama and threw it and had run away wearing underwear. While this statement becomes doubtful when his further statement that he did not see the Paijama up to 'the stage the Investigating Officer arrived at the spot with him later is taken into consideration, this matter may have relevance only concerning Sri Kishan, whose appeal has already abated. In fact, on this point he has again stated that before proceeding to the Police Station he had seen the blood stained Paijama at the spot. He denied the suggestion that: his brother Shanker Lal had gone to ease himself at 3-4 A. M. in the night and was then killed and the body was then discovered later. Taja Ram (PW 8) supporting Jagannath stated that on the date of incident he was proceeding to watch his own field and when he reached near the field of Jagannath he heard alarm of Shanker Lal and rushed in that direction. Jagannath, Jhamman Lal, Ram Das and Raghunath also rushed in that direction. He saw Shanker Lal being belaboured at a distance of 2-3 paces from the mend of the field of Ram Swarup inside the field. According to him, Arjun, Hakim and Bankey Hal were inflicting knife injuries to Shanker Lal, while Lalman, Desh Raj and Brindaban were catching hold of him and Sri Kishan was standing armed with a pistol. He saw Shanker Lal being belaboured at a distance of 2-3 paces from the mend of the field of Ram Swarup inside the field. According to him, Arjun, Hakim and Bankey Hal were inflicting knife injuries to Shanker Lal, while Lalman, Desh Raj and Brindaban were catching hold of him and Sri Kishan was standing armed with a pistol. The miscreants fled on being challenged by the witnesses and Sri Kishan fired at Shanker Lal in the course of escape hitting him. The miscreants were chased 15-16 paces, but could not be apprehended. He admitted that on preceding date, i.e. 20-8-1976 also he had come to give evidence, but, as he was unwell, an application was preferred before the court and his evidence was not recorded on that date. On that date he had come from Jail, being in Jail custody in connection with a case under section 307, IPG. According to him, later before his actual deposition he stood released from the Jail. 9. Two more witnesses, namely, Jhamman Lal (PW 2) and Raghunath (PW 4), were also examined as eye witnesses. Jhamman Lal stated that he was going to ease himself and when he readied near the field of Brij Lal he heard the alarm of Shanker Lal. He has thereafter narrated the incident. He has admitted in cross-examination that in between his house and that of Ram Swarup Jatav, there are 4-6 fields. He has further admitted that the nearest field from his house is 20-25 paces. In all those fields crops were standing. If he was really going to ease himself, he would go to the nearest field rather than covering such a long distance. The only explanation given by him for the same is that as he had not taken any Lota, so he did not go the nearest field. This explanation is unconvincing rather the fact that be claims to have gone to ease himself without a Lota would in itself render his account for his presence doubtful and his presence is doubtful. 10. In the like manner Raghunath (PW 4), who is also a totally chance witness, accounting for his presence stated that though a resident of village Beergaon he had come to Alidadpur for borrowing a plough and was returning back from Alidadpur to his village when he saw the incident. 10. In the like manner Raghunath (PW 4), who is also a totally chance witness, accounting for his presence stated that though a resident of village Beergaon he had come to Alidadpur for borrowing a plough and was returning back from Alidadpur to his village when he saw the incident. In cross-examination, he stated that he required a Triphala plough and that was the reason that he came to Alidadpur to borrow it. It has further been elicited in his cross-examination that many residents of his own village have such plough. When that is the position, there would be no occasion for his coming to Alidadpur for that, particularly when on his own admission he later borrowed such plough from his own village and used it. It is noteworthy that according to him, on that date he did not get any plough and thereafter he did not go again to Alidadpur for it. When all these circumstances are taken into consideration his version that he had gone to Alidadpur and was returning back from there becomes highly doubtful and his presence is also, thus, doubtful. We would, therefore, not rely upon the statements of Jhamman Lal (PW 2) and Raghunath (PW 4). But so far as the testimonies of Jagannath (PW 1) and Raja Ram (PW 8) are concerned, the account, given by them has gone completely undemolished. Jagannath's statement that he had a field adjacent to the field of Ram Swarup and he had gone there to watch crops is unshaken. Morning hours are the usual Hours when one goes to his fields. So there is nothing inherently improbable in the version of Jagannath accounting for his presence. As regards Raja Ram, his testimony that he has a field in the vicinity and had gone there is again undemolished. True, that he did not plough the field on that day, but that would not make any material difference. People keep visiting their fields and then plough it even later on the opportune moment. His statement that he has a field in that vicinity has again undemolished. 11. Neither Jagannath nor Raja Ram can be considered just as chance witnesses. The incident is not of village Abadi and is of the Har of the village outskirt, where only fields are located, only such persons who have also fields in that vicinity would be the natural witnesses. 11. Neither Jagannath nor Raja Ram can be considered just as chance witnesses. The incident is not of village Abadi and is of the Har of the village outskirt, where only fields are located, only such persons who have also fields in that vicinity would be the natural witnesses. When that is the position, the presence of Jagannath and Raja Ram cannot be ruled out on mere surmises. 12. It was argued that if Jagannath was really present, he would also be attacked and would not be spared when he too happened to be a recovery witness of the recovery of the transformer wire. It is noteworthy that from evidence it would appear that it was Shanker Lal who had furnished the information to the police. So, naturally the main grouse would be against Shanker Lal. Once Shanker Lal was way laid and done to death, the wrath of the persons, who were inimical, would be satisfied. They will not go on attacking each and every body concerned with the matter. Apart from that, Shanker Lal was taken by surprise, while by the time Jagannath was attracted other witnesses were also attracted and the culprits will be more concerned with their safe escape. It was urged that it is unexplained how the culprits would get aware of Shanker Lal's visit to Nagla Baburi and his return thereafter. When one has any grouse and design one keeps a watch over the movements of the person against whom such grouse exist in a secret manner and, (obviously, it is not possible for the prosecution to explain how the culprits got aware of Shanker Lal's visit to Baburi as to ambush him in course of his return journey. It was further argued that Chhadami of village Baburi has not been produced. It is a well settled law that the prosecution is not required to multiply evidence. Chhadami Lal was not a witness of the incident and it was not necessary to examine him. It is noteworthy that we have laid down the statement of Jagannath in detail and nothing has been elicited in his cross-examination to demolish his statement on oath that Shanker Lal had proceeded to village Baburi to collect dues from Chhadami. In fact, practically no cross-examination was directed to in any way to demolish or discredit his statement on that point. In fact, practically no cross-examination was directed to in any way to demolish or discredit his statement on that point. There is, thus, no reason, whatsoever, not to accept his statement on that point. 13. It was argued that any money was not found with Shanker Lal after his murder. That again cannot have any significance. There is nothing to suggest that Shanker Lal succeeded in collecting any dues from Chhadami. The crux of the matter is whether Shanker Lal had proceeded to Baburi in the early morning and so far as that aspect is concerned, the evidence of Jagannath is undemolished. 14. It was next urged that Raja, Ram gave evidence in trial court only after his release on the adjourned date and in between the police managed his release for want of identification. The trial court observed that Raja Ram was discharged from jail on 20-8-1976, after his return from the court, as he had earlier been not identified by any witness in connection with the case under section 307 IPC against him. The trial court has based the observation upon the statement of Raja Ram, but we find that there is no material on record on the point and Raja Ram has not stated that his identification took place earlier. This however, would not make any difference. The Court cannot make a surmise that the identification of Raja Ram, who was in jail, necessarily took place after 20-8-1976 as to base any conclusion on such consideration. It is a well settled law that conjectures are not permissible and it will be purely conjectural to hold that the police manoeuvred the release of Raja Ram by managing nil identification as bait for his evidence in this case. Raja Ram was in judicial custody and the matter of his release thereafter by any orders of the court cannot be attributed to the police. True, that his evidence was not recorded on 20-8-76, but such instances are not wanting, when adjournment is given for the evidence of any witness, who is unwell. There is nothing in the order of the trial court dated 20-8-76 to suggest that the adjournment was opposed or the factum of indisposition of the witness on 20-8-76 was challenged on that date. There is nothing in the order of the trial court dated 20-8-76 to suggest that the adjournment was opposed or the factum of indisposition of the witness on 20-8-76 was challenged on that date. The court must have been satisfied that the witness is not in a fit state of health to stand the strain of the witness box as to adjourn the case. Any adverse inference, therefore, cannot be drawn against Raja Ram simply for the reason that on 20-8-76 the cr.se was adjourned, as the court was informed that the witness was unwell. In fact, the witness had come to the court and was present when the case was adjourned for such consideration. We are surprised at the suggestion made to the witness that he did not come to the court on 20-8-76. It was next urged that both Raja Ram and Jagannath are accused along with the Investigating Officer in the cross complaint filed by Ram Chander, related to the persons on the defence side. It is noteworthy that the alleged recovery of transformer wire was made on 30-8-1975 and by way of defence in that case a complaint may have been filed, setting up a counter-version of loot by the police and the recovery witnesses. This complaint (Ext. kha. 4) was filed after a lapse of three months and that in itself may strongly indicate that the complaint was filed to save the skin of the persons involved in the recovery of transformer wire of 30-8-1975. The defence is conscious of it and that is why any arguments were not based in support of the counter version concering the affairs of 30-8-75. So merely because any complaint was filed against some persons may be to create any defence in any case, those persons can neither be considered as interse associated, nor that fact can wiegh against them. The trial court has discussed the matter thread-bare holding that the complaint was to fabricate a story. 15. Raja Ram would not become a police stage simply because he too happened to be a witness of recovery of transformer wire. It is noteworthy that it has been elicited by the defence; itself that RAJA Ram is being prosecuted by the police of the police station in question in another case under Section 307, IPC. 15. Raja Ram would not become a police stage simply because he too happened to be a witness of recovery of transformer wire. It is noteworthy that it has been elicited by the defence; itself that RAJA Ram is being prosecuted by the police of the police station in question in another case under Section 307, IPC. When that is the posit on, RAJA Ram cannot be considered to be a pocket witness of the police. Rather he would be unhappy on account of the same. 16. It was next urged that in view of the height of the standing crop in Ram Swarup's field, the witness who claimed to have seen the incident from the distance ranging between 8 to 16 paces would not be able to see the actual events and the view will be obstructed. The evidence is consistent that the crops of the field of Ram Swarup stood 2 or 4 paces away from the Mend. It would also appear that there is a pagdandi and passage and standing on the passage they could closely observe. It is a broad day light incident and the witnesses would not remain indifferent and would closely observe the events. The first information report in this case is prompt and the roles played by the individual accused persons an; expressly stated. The evidence given by Jagannath and Raja Ram regarding the roles played by the individual accused persons is also consistent and no contradiction or discrepancy is found. When that is the position, their testimony cannot be rejected simply for the consideration that there was standing crop also in the field of Ram Swarup. It would no doubt appear that Jagannath as the brother of Shanker Lal is not totally an independent witness. About Raja Ram also it may be urged that he figured as a recovery witness against some of the accused persons, being a witness of the memo. However, it does not mean that their evidence is to be rejected simply on such consideration. Their evidence would simply call for a careful and cautious scrutiny and cautious approach will be made. 17. The learned Counsel for the appellants has relied upon the case of Pohalya Motya v. State of Maharashtra, 1979 CrLJ 1310 . That case relates to circumstantial evidence, while there are eye witnesses in this case. Their evidence would simply call for a careful and cautious scrutiny and cautious approach will be made. 17. The learned Counsel for the appellants has relied upon the case of Pohalya Motya v. State of Maharashtra, 1979 CrLJ 1310 . That case relates to circumstantial evidence, while there are eye witnesses in this case. Each case is to be decided in the light and background of its individual facts and appreciation of evidence. Reliance has further been placed on the case of Jamail Singh v. Stale of Rajasthan, 1972 CrLJ 824. The facts of that case are also quite different. What has been laid down is that unjustified and unexplained delay in interrogation of a witness may weight adversely. Both of the two witnesses upon whom we have relied interrogated on the very day. This would be borne (sic) out the statement of the I.O. 18. So far as accused persons Bankey Lal, Gaya Prasad alias Hakim and Arjun are concerned, it was expressly stated in the first information report itself that it is they who inflicted knife injuries upon the victim. The evidence of Jagannath and Raja Ram is again consistent on the point concerning the roles played by them. As regards to their roles, there is further corroboration by the medical evidence. There are is many as 14 injuries caused by knives of two different types. Considering such large number of injuries, the aforesaid direct evidence attributing that role to the aforesaid three appellants would inspire confidence. The direct evidence directed against the aforesaid three persons fully corroborated by the first information report and the medical evidence established beyond reasonable doubt that these three persons did inflict all the knife injuries upon the victim resulting into his death, The case of Raghubir v. State of U. P., AIR 1971 SC 2156 is am authority for the importance of corrboration by additional circumstance, i. e. in the present case by medical evidence. As regards motive, it is noteworthy that Shanker Lal had furnished information to the police leading to the recovery of transformer wire only two days before the incident and the aforesaid accused persons would have strongest motive to take revenge. It is also noteworthy that there is nothing to suggest that some others not involved in the incident had any such motive to commit the murder of Shanker Lal. 19. It is also noteworthy that there is nothing to suggest that some others not involved in the incident had any such motive to commit the murder of Shanker Lal. 19. Sri Kishan, who was assigned the role of shooting, has died and his appeal has abated. In the circumstances, the prosecution evidence against the aforesaid three accused persons cam be safely believed and acted upon. 20. As regards the other three :accused persons, namely, Lalman, Brindaban and Desh Raj, they according to the prosecution itself were bare handed. Ordinarily, if persons come as members of unlawful assembly they would not come bare handed. The rule of abundant precaution would be attracted in their case and a safe approach would demand that they should be given benefit of doubt and acquitted. But that would not entitle the others also to such benefit. The case of Raghubir (supra) is a so an authority on the point. When the case against three of the appellants is not found free from doubt and the number of assailants would in the maximum, thus, come to only four, Section 149, IPC would not be attracted and the conviction of the appellants Bankey Lal, Gaya Prasad alias Hakim and Arjun under Section 148, IPC and the sentence awarded to them under that section cannot be maintained. It has to be considered when Section 149, IPC is inapplicable, Section 34, IPC would be attracted. The learned counsel for the appellants relied upon the case of Titir Dussath v. State of Bihar, 1966 CrLJ 1474 . We fail to appreciate how this ruling would apply to the facts of the present case. Whether a common intention to cause the murder of Shankar Lal or cause injuries sufficient in the ordinary course of nature to cause death of Shanker Lal existed or not will depend upon the facts and circumstances of the case. In the present case, the culprits lay in ambush having come together. They took the victim by surprise. They had come armed with knives, which is a deadly weapon. They all attacked the victim together. The injuries speak of the intention. They were on vital parts and a number of injuries were caused. The culprits concerned thereafter also departed together. In the present case, the culprits lay in ambush having come together. They took the victim by surprise. They had come armed with knives, which is a deadly weapon. They all attacked the victim together. The injuries speak of the intention. They were on vital parts and a number of injuries were caused. The culprits concerned thereafter also departed together. When all these facts and circumstances are considered together it is manifest that they had, the common intention to commit the murder of Shanker Lal or atleast to cause injuries to him sufficient in the ordinary course of nature to cause death and the murder of Shanker Lal was committed in furtherance of such common intention Section 34, IPC is therefore, definitely applicable in this case and the convection of the appellants Bankey Lal, Gaya Prasad alias Hakim and Arjun under Section 302, IPC is maintained with the aid of Section 34, IPC, instead of Section 149, IPC. 21. In the result, the appeals of Lalman, Brindaban and Desh Raj are allowed and their conviction and sentence on the different counts are set aside and they are given benefit of doubt e ad are acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. 22. Appeal of Bmkey Lal, Gaya Prasad alias Hakim and Arjun are partly allowed and while their conviction under Section 148, IPC and sentences awarded under that section is set aside and they are acquitted under that section their conviction under Section 302 IPC with the aid of Section 34 IPC, instead of Section 149 IPC, and the sentence of life imprisonment, which is lesser punishment, is maintained. They are on bail. They shall be taken into custody forthwith to serve out their sentence.