C. P. SEN, J. ( 1 ) THE State has preferred this appeal against acquittal of the respondents for the offences under sections 148 and 302/149 I. P. C. for having committed murder of Raj Kumar by being members of an unlawful assembly armed with deadly weapons with the common object of committing the murder. ( 2 ) IT is not disputed that the respondents and the deceased Rajkumar were residents of village Rondha, P. S. Betul and they had their agricultural lands adjacent to each other. Respondents 1 and 2 Sunderlal and Biharilal are brothers while rest of the respondents i. e. Annu alias Anil Kumar, Ashok Kumar and Kabra alias Promod Kumar are sons of Biharilal. Jaiwantibhai (P. W. 9) is the mother and Jagan alias Jagannath (P. W. 10) is father of deceased. Sampat Rao (P. W. 11) is a cousin of lagan while Gendlal (P. W. 12) was his servant. ( 3 ) THE prosecution case is that on 15. 3. 1980 at about 6 p. m. the deceased and his mother Jaiwantibai got loaded their bullockcart with Chana crop which was being taken by their servant Keshari to the Kaliyan and the deceased and his mother were following the cart on foot. When they crossed the field of Kishan and just entered the field of Dadu which was being cultivated by the respondent Sunderlal, the respondents stopped him and asked him as to why he has allowed the bullock-cart to be taken through his field. When he was told that there was no standing crop and they were taking the bullock-cart by the side of the field, all the five respondents, armed with lathis, started assaulting the deceased on his head. As a result he fell down and he was given further blows by these respondents. Jaiwantibai raised an alarm and Sampat Rao who was just behind her with his servant Gendlal and Keshari and Dadu servants of the deceased, rushed there and the respondents ran away from the spot. The deceased was carried in a bullock-cart to the district hospital, Betul by Jaiwantlbai and Sampat Rao but they were told to make a report first in the police station. So Jaiwantibai lodged a report (Ex. P. 18) at 9. 30 p. m. in the Police Station Betul six Kms. away from the spot. The deceased was carried in a bullock-cart to the district hospital, Betul by Jaiwantlbai and Sampat Rao but they were told to make a report first in the police station. So Jaiwantibai lodged a report (Ex. P. 18) at 9. 30 p. m. in the Police Station Betul six Kms. away from the spot. By the time they returned to the hospital the deceased was declared dead. The post mortem was done by Dr. A. K. Verma (P. W. 1) who found three lacerated wounds on the head and one contusion over the shoulder with fractures of right temporal bone just below the right externalear extending downwards covering almost all areas of right parietal bone and extending upto occipital bone; fissured fractures of left parietal bone and fissured fracture of the occipital bone. In the sketch of the post mortem report (Ex. p. 1) the fractures have been explained. The injuries were sufficient in the ordinary course to cause death and may be caused by a hard and blunt object. Fiyaz Akhtar (P. W. 13), Station Officer, took up investigation and seized blood-stained earth from the spot and the clothes of the deceased. The respondents w (re taken into custody and from their respective possession blood-stained lathis (Articles A to E) were seized. The blood-stained articles were sent to the Chemical Examiner and Serologist. The Chemical Examiner vide his report (Ex. p. 23) found blood-stains on these articles, while the Serologist vide his report (Ex. p. 24) found human blood in the lath is recovered from respondent Annu alias Anil Kumar. On completing the investigation, the respondents were charge-sheeted for the murder. The respondents 2 to 5 took the plea of alibi and examined one defence witness Shiv Ratan (D. W. 1 ). According to responent No. 1 Sunderlal, he has been falsely implicated. ( 4 ) THE learned Addi. On completing the investigation, the respondents were charge-sheeted for the murder. The respondents 2 to 5 took the plea of alibi and examined one defence witness Shiv Ratan (D. W. 1 ). According to responent No. 1 Sunderlal, he has been falsely implicated. ( 4 ) THE learned Addi. Sessions Judge, on considering the evidence on record, rejected the testimonies of three eye-witnesses, Jaiwantibai (P. W. 9), Sampat Rao (P. W. 11) and Gendlal (P. W. 12) for the following reasons: (i) there is discrepancy between the occular and medical evidence, inasmuch as the doctor found only three injuries while according to the witnesses at least four blows were given, two by each of the respondents and out of five lath is seized only three could have caused three injuries; (ii) the prosecution has not examined material witnesses Keshari and Dadu who were admittedly present on the apot and were not relations of the deceased but the prosecution examined two close relations of the deceased; (iii) there is material contradictions in the testimony of Jaiwantibai with her version in the FIR. (Ex. P-18j and she had not been corroborated in material particulars by Sampat Rao; (iv) it was suggested to Jaiwantibai in her cross-examination that there was a scuffle between respondent No. 1 and the deceased fell down on the ground and sustained the injuries and according to Dr. Verma the fractures could have been caused by a fall on a stone; (v) it is the suggestion of the respondents that the lathis were in the bullock cart of the deceased and that explains the blood-stains on them; and (vi) the recovery of blood-stained lathis can not be accepted because independent persons have not been made to act as panchas Gendlal a relation of the deceased has been examined as a panch and he has contradicted the investigating officer that the writings were done in the chabutra of the Panchayat Bhawan. For all these reasons the respondents have been acquitted. ( 5 ) AFTER having heard the parties and perused the record, we are of the opinion that the findings recorded by the trial Judge are perverse and cannot be supported on any ground. For all these reasons the respondents have been acquitted. ( 5 ) AFTER having heard the parties and perused the record, we are of the opinion that the findings recorded by the trial Judge are perverse and cannot be supported on any ground. The Privy Council in Sheo Swarup v. King Emperor1 has held that no limitation should be placed upon the power of the High Court in an appeal against acquittal but in exercise of that power the High Court before reaching its conclusions should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. It has also been laid down that if two views of the evidence are possible, the view of the trial Judge has to be accepted. Recently the Supreme Court in Aber Pitha Vaishi v. State of Gujarat2 has held that where the Sessions Judge attached undue importance to minor discrepancies and by making a suspicious approach to the evidence of the witnesses by resorting to conjecture, the High Court in an appeal, after close examination of the entire evidence, was perfectly justified in taking the view that the assessment made by the Sessions Judge was altogether unreasonable, and in making its own assessment and in concluding that the evidence of the prosecution witnesses was satisfactory and enough to warrant a finding that the accused were the assailant who had assaulted the deceased. Further the Supreme Court in State of Gujarat v. Kaginbhai3 has held that evidence of a partisan witness cannot be discarded unless it is proved that it suffers from serious infirmities which raise (sic) considerable doubt in the mind of the court. ( 6 ) ADMITTEDLY, in the present case, the incident happened at about 5. 30 p. m. in the month of March when there is sufficient light. The place of incident is the field of one. ( 6 ) ADMITTEDLY, in the present case, the incident happened at about 5. 30 p. m. in the month of March when there is sufficient light. The place of incident is the field of one. Kishan from where bloodstatined earth was seized and presence of blood in the earth has been confirmed by the report of the Chemical Examiner and Serologist. On, the north of this field is the field of one Badu which was being cultivated by respondent No. 1 Sunderlal and surrounding this field are the fields of the deceased, respondents and Sampat Rao and others. According to the eye witnesses. There was no standing crop at that time and no agricultural operations were going on and in fact no other persons were present except those mentioned by the witnesses. Jaiwantibai (P. W. 9), mother of the deceased was following her son on foot. When her son just reached the field of Badu he was surrounded by these respondents. The respondents then pushed and dragged the deceased to the field of Kishan where he was assaulted with lathis by these respondents on his head. He fell down and he was further beaten by the respondents. The deceased was then carried in a bullock, cart to Betul police station 6 kills away where the report (Ex. P-8) was lodged promptly within three hours by Jaiwantibai. She has been disbelieved because in the F. I. R. (Ex. P-8) she has mentioned that before beating the deceased there was a talk between her and respondent No. 1 Sunderlal as to why the bullock-cart was being taken through their field, while in evidence she denied this part of the F. I. R. and stated that the talk was between the deceased and Sunderlal. This omission is of very minor nature and do not affect the core of the prosecution case. She has also been disbeleived because in her evidence she has stated that her report has not been taken down correctly and she has further stated that the deceased was pushed and Tdragged some distance but this is missing from the F. I. R. This again is not of much consequence. She has been corroborated in material particulars by Sampat Rao (P. W. 11) whose presence near the place of incident cannot be doubted because his field was nearby. She has been corroborated in material particulars by Sampat Rao (P. W. 11) whose presence near the place of incident cannot be doubted because his field was nearby. So also the presence of his servant Gend Lal (P. W. 12 ). There is no inconsistency between the medical evidence and the statements of these witnesses. It is true that what the eye witnesses have stated is that each of the respondent gave two blows while, according to doctor, there were, in fact, three lacerated wounds on the head and one contusion on the shoulder but Dr. A. K. Verma (P. W. 1) in cross-examination could not say that how many blows were given for causing the fractures. One hypothetical question has been asked whether the fractures could have been caused by a fall. There is no evidence of fall. Besides, such extensive fractures could not have been caused by a single fall unless the fall was from some height. There is no evidence of any scuffle between the deceased and respondent No. 1 but the trial Judge accepted the suggestion in cross-examination to be the evidence and held that the deceased light have suffered the injuries due to a fall. This finding is without any evidence. ( 7 ) SIMILARLY the evidence of Jaiwantibai (P. W. 9) and Sampat Rao (P. W. 11) cannot be discredited simply because they are relations. Their presence on the pot cannot be doubted and their evidence is also inform. Their servant Keshari was at a distance of 300 to 400 yards when the assault took place and he cannot be an eye witness. Badu has not been examined who was also a servant of the deceased. He is interested witness and his non-examination is of no, consequence, when his master has already been examined. The recovery of blood-stained lathis from the respective houses of the respondents have been duly proved by S. C. Faiyaz Akhtar (P. W. 13) and he is corroborated by Rama Rao (P. W. 6 ). His evidence has been discarded on flimsy ground simply because Rama Rao is a relation of the deceased. The recovery of blood-stained lathis from the respective houses of the respondents have been duly proved by S. C. Faiyaz Akhtar (P. W. 13) and he is corroborated by Rama Rao (P. W. 6 ). His evidence has been discarded on flimsy ground simply because Rama Rao is a relation of the deceased. Therefore, it has to be held that all these respondents armed with lathis, simultaneously attacked the deceased and caused his death and they formed an unlawful assembly with the common object of causing grievous injuries to the deceased: The lathis could be said t6 be dangerous weapons as they were not ordinary lath is. One of the lathi seized from respondent No. 3 Annu alias Anil Kumar was a formidable weapon. Therefore, when it is not known out of the five respondents who caused the fatal injuries, they could be attributed to the common object of causing grievous hurt to deceased. So each of the respondent has to be convicted under Sections 326/149, Indian Penal Code. ( 8 ) ACCORDINGLY the appeal is partly allowed. The acquittal of the respondents are set aside and instead they are convicted under Section 326/149, Indian Penal Code and each sentenced to R. I. for five years. They are on bail to surrender their bail for undergoing the sentences. .