O. P. MEHROTRA, J. ( 1 ) THIS appeal has been filed by Rajwa, his son Sauniya and three other persons viz. Gaya Prasad, his brother Siya Ram and one Mangi against the judgment dated 31/10/1977 passed by Additional Sessions Judge, Fatehpur. Appellants Rajwa and Sauniya who are said to have been armed with Kulharis have been convicted under section 148, I. P. C. and sentenced to undergo R. I. for two years each while the remaining three accused, who are said to have been armed with Lathis have been convicted under section 147, I. P. C. and sentenced to R. I. for two years each. All the appellants have further been convicted under section 302/149, I. P. C. and sentenced to imprisonment for life. ( 2 ) DECEASED Smt. Maharajiya aged about 65 years was the widow of Girdhari Kewat of village Rustampur alias Natthipur, P. S. Chandpur of District Fatehpur. Informant Dulua (P. W. 1) used to live with her and look after her cultivation for the last about 10-15 years. Appellant Rajwa is the nephew of Smt. Maharajiya while appellant Sauniya is the son of Rajwa. Girdhari died about 2 or 3 years prior to this murder. After his death, there was some litigation regarding land between Smt. Maharajiya on the one hand and her nephews Rajwa (appellant) and Jalia on the other. The said litigation was decided in favour of the deceased. It is alleged that Rajwa and others were inimical towards the deceased on account of the fact that the said litigation ended in her favour. ( 3 ) THIS occurrence is said to have taken place on 26/6/1975 at about 11 a. m. The first information report was lodged by Dulua (P. W. 1) at Police Station Chandpur, which was about 6 miles from the spot, on the same day at 4 p. m. It was alleged that at about 11 a. m. , when the informant and the deceased were going towards the field in the east of the village and had reached near the Nala, all the accused persons came out from the Nala armed with Kutharis and Lathis and started assaulting Smt. Maharajiya after surrounding her. Rajwa and Sauniya were armed with Kulharies while Gaya Prasad, Siyaram and Mangi had lathis on their alarm, witnesses Shiv Balak Singh (P. W. 3) and Badri Singh (P. W. 4) who were taking Hariyali (green-fodder) from the fields, arrived there. On the arrival of the witnesses, the accused persons escaped towards south. The witnesses found that Smt. Maharajiya had sustained Kulhari injuries on her neck and her right hand was fractured. She succumbed to her injuries on the spot. ( 4 ) A case under sections 147, 148,302/ 149, I. P. C. was registered and investigation was taken up by S. 0. Shitla Prasad, who inspected the spot, prepared the site plan (Ex. Ka-5) and interrogated the witnesses. Autopsy on the dead body was performed by Dr. S. K. Gupta (P. W. 2) on 1. 3. 1975 at 10. 45 A. M. The deceased was aged about 65 years and had died about 3 days back. He found the following ante mortem injuries on the dead body: 1. An incised wound 61/2 x 3 x bone cut in the middle part of the mouth running obliquely on the right side upto the neck it below the right ear, tongue, mandible on the right side. Muscles and arteries underneath the injury were cut. Margins were clean and inverted and clotted blood was present. 2. Incised wound 3 x 1/2 x bone cut on the middle of right side of cheek itt away from the mouth upto itt below the right ear. Margins were clean and inverted. Clotted blood was present. Muscles, arteries and maxilla bone was cut. 3. An incised wound 2 x 1/2 x bone deep on the front of the middle of the lower part of the neck 2 above the sternum. Margins were clean and inverted. Collected blood was present, Trachea cesophagus underneath were cut. Contents of the stomach were coming out from wound. 4. Incised wound 2 x 1 bone cut on the left side of front of the upper part of chest over the clavicle bone. Bone underneath the injury was cut. Marging were clean and inverted. Clotted blood was present. ( 5 ) INCISED wound 2 x 1/4 x muscle deep on the parietal bone 11/2 above the left ear. ( 6 ) CONTUSION 2 x 11/2 on the lower part of the right forearm 2 above the right wrist. Bone underneath the injury was cut. Marging were clean and inverted. Clotted blood was present. ( 5 ) INCISED wound 2 x 1/4 x muscle deep on the parietal bone 11/2 above the left ear. ( 6 ) CONTUSION 2 x 11/2 on the lower part of the right forearm 2 above the right wrist. Both bone radius and ulna were fractured underneath. The tongue was found out into two pieces in middle. The stomach was empty. Small intestines were also empty. Large intestines were full of faecal matter and gases. Bladder was also empty. The death was due to shock and haemorrhage, as a result of the above injuries (vide EA. Ka-2 ). 5. In support of its case, the prosecution examined three eve witnesses. P. W. 1 Dulua was the informant of this case. P. W. 3 Shiv Balak Singh and P. W. 4 Badri Singh were eye witnesses who were cutting green fodder in their fields and had arrived at the spot on hearing the alarm. All these witnesses fully supported the prosecution case in all other respects, except that they stated that accused Rajwa and Sauniya alone had assaulted the deceased with Kulharis and that other three accused viz. Gaya Prasad, Siyaram and Mangi were merely standing with Lathis in their hands but did not assault her. 6. All the accused persons pleaded not guilty and stated that they had been falsely implicated. Their suggestion was that Smt. Maharajiya might have been murdered by some persons in the darkness of the night on early hours of the morning and that they had been falsely implicated due to enmity or suspicion. Their case was that Smt. Maharajiya was not legally wedded wife of Girdhari and that his legally wedded wife was Smt. Nibia, from whom he had a daughter named Ranchi alias Parimia, who had applied for mutation of her name and the said mutation application was opposed by Smt. Maharajiya. The defence suggestion was that Dulua (P. W. 1) and Shiv Balak Singh (P. W. 3) used to help Smt. Maharajiya in that litigation. It was also suggested that informant Dulua was married to one Kumhariya whom accused Mangi had kidnapped about 7 years back and she had filed an application dated 30/3/1970 (Ex. The defence suggestion was that Dulua (P. W. 1) and Shiv Balak Singh (P. W. 3) used to help Smt. Maharajiya in that litigation. It was also suggested that informant Dulua was married to one Kumhariya whom accused Mangi had kidnapped about 7 years back and she had filed an application dated 30/3/1970 (Ex. Kha-1) before the District Magistrate, Hamirpur stating that both of them were living as husband and wife and that the police should not harass them. It was suggested that Dulua bore grudge against accused Mangi on this count and had falsely implicated him. Accused persons examined Janki Prasad (D. W. 1) in support of their defence. ( 7 ) THE learned Sessions Judge believed the prosecution witnesses and convicted and sentenced all the appellants as mentioned above. Hence this appeal. ( 8 ) WE have heard the learned counsel for the appellants and have carefully gone through the entire material on the record. We find that as far as appellants Rajwa and Sauniya are concerned, the prosecution bad succeeded in providing its case beyond reasonable doubt. The first information report had been lodged promptly and without undue delay. The occurrence took place at about 11 a. m. and the First Information Report was lodged at police station Chandpur, which was at a distance of six miles from the spot, on the same day at 4 p. m. ( 9 ) AS regard motive, there is sufficient material on the record, which shows that appellants Rajwa and Sauniya had sufficient motive to commit this murder. It is not disputed that the deceased was aunt of appellant Rajwa, and Sauniya was son of Rajwa. The prosecution has filed documents to show that there was litigation between the deceased on the one hand and Raiwa, Jalia and others on the other. Smt. Maharajiya in her capacity as widow of Girdhari applied for mutation in her favour. The copy of the judgment of the Consolidation Officer dated 13/8/1973 (Ex. Ka 13) shows that the Consolidation Officer passed an order expunging the name of Girdhari over the Khata in dispute and for entering the name of Smt. Maharajiya in his place. The copy of the judgment of the Deputy Director, Consolidation (Ex. Ka-12) dated 21/11/1974 shows that Rajwa and his brothers bad filed a revision which was dismissed. Ka 13) shows that the Consolidation Officer passed an order expunging the name of Girdhari over the Khata in dispute and for entering the name of Smt. Maharajiya in his place. The copy of the judgment of the Deputy Director, Consolidation (Ex. Ka-12) dated 21/11/1974 shows that Rajwa and his brothers bad filed a revision which was dismissed. This judgment shows that Rajwa and his brothers had disputed that Smt. Maharajiya was the legally wedded wife of Girdhari. Their contention was not upheld and both the courts found that Smt. Maharajiya was the widow of Girdhari and ordered for mutation being made in her favour. Naturally Rajwa had motive against Smt. Maharajiya and it was nothing surprising if, after losing in the said litigation, he and his son decided to do away with Smt. Maharajiya so that they could get the property. The statements of the witnesses further show that after this occurrence, accused Rajwa actually took possession over the property of Smt. Maharajiya. It was thus established that accused Rajwa and his son Sauniya had sufficient motive for committing this murder. ( 10 ) THIS occurrence had taken place in broad day light and the report had also been lodged promptly. The prosecution by the testimony of three eye-witnesses viz. P. W. 1 Dulua, P. W. 3 Shiv Balaki Singh and P. W. 4 Badri Singh. It is not disputed that P. W. 1 Dulua was living along with Smt. Maharajiya and was looking after her cultivation. As a matter of fact, the defence suggestion was that he was the son of Smt. Maharajiya. Dulua has denied the suggestion but claims that he was living with Smt. Maharajiya for the last about 15 years and looking after her cultivation. As Smt. Maharajiya was an old woman it was but natural that she was keeping Dulua with her for looking after her cultivation. Consequently, it was very natural that this witness accompanied Smt. Maharajiya while going to the field lying towards east of the village. It was mentioned in the First Information Report that both of them were going towards the field with food etc. A Lota containing food material was found lying at the spot when the Investigating Officer went there. As such we have no doubt regarding the presence of P. W. 1 Dulua at the spot. It was mentioned in the First Information Report that both of them were going towards the field with food etc. A Lota containing food material was found lying at the spot when the Investigating Officer went there. As such we have no doubt regarding the presence of P. W. 1 Dulua at the spot. It is also noteworthy that he had no personal enmity against the accused persons. He was a natural witness and we find ourselves in agreement with the finding of the learned Sessions Judge that he was present at the spot and had witnessed the occurrence. The mere fact that assailant did not make any attempt to assault him cannot be a valid ground from doubting his presence. The evidence shows that he was a few steps ahead of the deceased. Moreover the accused persons had no motive to assault him and their purpose was merely to commit the murder of Smt. Maharajiya so that they may get her property. Due weight has, therefore, to be attached to the testimony of this witness. ( 11 ) AS regards P. W. 3 Shiv Balak and P. W. 4 Badri Singh they were also natural witnesses of the locality, who were present in their field for cutting green fodder. No doubt they were related to each other as uncle and nephew but on this ground alone, they cannot be disbelieved. It was pointed out that appellant Rajwa had lodged a report against Badri Singh (P. W. 4) under sections 323/504/426 Indian Penal Code on 10. 8. 1968. Besides This report, there is nothing to show that these witnessed had any direct enmity with the accused. Moreover, this report was lodged about 7 years back and then: is nothing to show that witness Badri Singh was prosecuted on the basis of that report. Consequently, we are not prepared to accept the defence contention that these witnesses were not present at the spot or that they were giving false evidence against the accused. It in noteworthy that all the three eye-witnesses were cross-examined at length and we do not find any material contradiction or discrepancy in their statements which might go to show that they were not present at the spot or that they were not truthful. It in noteworthy that all the three eye-witnesses were cross-examined at length and we do not find any material contradiction or discrepancy in their statements which might go to show that they were not present at the spot or that they were not truthful. The learned Sessions Judge who recorded their statements and who had an opportunity to note their demeanour has believed these witnesses and we do not find any reason to take a different view. Due weight has, therefore, to be attached to the testimony of these witnesses and, in our opinion, the same was sufficient to justify the finding of guilt against these appellants. ( 12 ) THE learned counsel for the appellants drew our attention to the post-mortem report which shows that stomach of the deceased was empty and that large intestines contained faecal matter. On this basis, it was argued that in all probability this occurrence took place in the early hours of the morning when the deceased had not gone to ease herself. We are unable to accept this contention. It is common experience that most people even after easing themselves in the early morning often go for easing themselves for a second time. H was also possible, as observed by the learned Sessions Judge, that she could not pass stool in the morning and hence faecal matter was found present in her large intestines. The mere presence of faecal matter in the large intestines does not necessarily mean that this occurrence had taken place in the early hours of the morning. It is to be remembered that this is a case of eye-witness testimony and all the three eye-witnesses have categorically stated that the occurrence took place at 11 am and a report of the occurrence was lodged with promptitude and the names of both the witnesses were mentioned therein. As such we do not find any force in the above contention. ( 13 ) HOWEVER, so far as the remaining three accused persons viz. Gaya Prasad Siyararo and Mangi are concerned, it cannot be said with any amount of certainty that they were also present at the spot and had joined band with the other two appellants. As such we do not find any force in the above contention. ( 13 ) HOWEVER, so far as the remaining three accused persons viz. Gaya Prasad Siyararo and Mangi are concerned, it cannot be said with any amount of certainty that they were also present at the spot and had joined band with the other two appellants. It is noteworthy that although it was mentioned in the First Information Report that all the five accused persons surrounded Smt. Maharajiya and started assaulting her, yet their oral statements they have definitely stated that these three accused persons were merely standing there and did not assault Smt. Maharajiya. It is noteworthy that these three appellants had no enmity or cause for grievance against Smt. Maharajiya, nor there is anything to show that they had any common cause with appellant Rajwa and Sauniya, and it is doubtful that they would have unnecessarily joined hands with them in a crime of this nature. P. W. 1 Dulua has stated that they belong to the family of Rajwa but the other two witnesses have categorically stated that they did not belong to the family of Rajwa. Even P. W. 1 Dulua could not show as to how these three accused persons were related or associated with the other two accused, who were armed with Kulharis. The post-mortem report shows that he deceased bad received five incised wounds and a contusion with a fracture. This contusion was evidently caused by a blunt weapon and these witnesses could have easily stated that person having Lathis had also assaulted the deceased However, it appears that although Dulna had named these three appellants in his First Information Report yet the conscience of this witness, as also of the other two witnesses, was all the time pricking them and hence when they were examined in this case, they stated that these three accused persons had not participated in the assault and were merely standing along with the other two accused, We fall to understand as to why these three accused persons would have accompanied Rajwa and Sauniya if they had no intention of participating in this assault, and also when they had no cause for grievance against her. So far as the contusion with fracture of radius and ulna is concerned, the learned Sessions Judge has rightly observed that the same might have been caused with the blow of Kulhari If the same was (struck from the side or from the back. As such we are not convinced that these three accused were also present at the spot much less that they had come prepared and bad assaulted the deceased. In any case, these three persons are entitled to be acquitted on the basis of the principle of abundant precaution. These three accused persons are, therefore, entitled to be acquitted. ( 14 ) APPELLANT Rajwa and Sauniya were charged under section 302 read with section 149 Indian Penal Code. However, as we have held that this murder had been committed by Rajwa and Sauniya alone and have acquitted the other three accused these two appellants deserve to be convicted under section 302/34 Indian Penal Code instead of section 302/149 Indian Penal Code. As they were the only assailants, there was no question of their being convicted for the offence under section 148 Indian Penal Code. ( 15 ) IN the result, the appeal succeeds in part. The appeal of Gaya Prasad, Siyaram and Mangi is allowed. Their conviction under section 302/149 Indian Penal Code and section 147 Indian Penal Code is set aside and they are acquitted of these charges. They are on bail. They need not surrender to their bail bonds which are cancelled and sureties discharged. The appeal of Rajwa and Sauniya succeeds to this extent that their conviction under section 148 Indian Penal Code is set aside and they are acquitted of that offence. As regarding their conviction under section 302/149 Indian Penal Code the same is converted to one under section 302/34 Indian Penal Code. The sentence of life imprisonment awarded to them is maintained with the modification that the same would be deemed to be for the offence under section 302/34 Indian Penal Code. They are on bail. They shall be taken into custody and sent to jail to serve out their sentence. Order accordingly. . .