V. P. MATHUR, J. ( 1 ) MANGAL son of Narain, resident of Prahladpur, Police Station Soron, district Etah, and his four sons, namely Banwari, Teni alias Mewa Ram, Latoori and Subhas are the appellants before us. The Sessions trial, however, proceeded against these five persons and one more accused, namely Smt. Ramshri, wife of Mangal. Mangal, Latoori and Subhas are said to have been armed with lathis. Smt. Ramshri was said to have come with a Khurpi which she used from its handle side. Only Teni alias Mewa Ram and Latoori used Ballams. The learned II Additional Sessions Judge, Etah, Mr. V. M. Kher, by his judgment dated 31. 5. 75 extended the benefit of doubt to Smt. Ramshri and acquitted her, but he found Mangal, Latoori and Subhas guilty under section 147, I. P. C. and sentenced each one of them to 15 months rigorous imprisonment. Each one of them was also convicted under section 302 I. P. C. read with section 149 of the Indian Penal Code and sentenced to imprisonment for life. Each one of them was further convicted under section 323 read with section 149 I. P. C. and sentenced to six months rigorous imprisonment. All the sentences were made concurrent. ( 2 ) BANWARI and Teni alias Mewa Ram were convicted under section 148 I. P. C. and each one of them was sentenced to two years rigorous imprisonment. They were also convicted under section 302 read with section 149, I. P. C. and each one of them was sentenced to imprisonment for life. Both of them were further convicted under section 323 read with section 149, I. P. C. , and were sentenced to six months rigorous imprisonment each. Their sentences were also made concurrent. ( 3 ) THE occurrence took place in village Prahladpur which lies within the area of police station Soron in the district of Etah, on 10. 8. 76, at about 4 p. m. An F. I. R. was lodged, three miles away, in police station Soron the same day at 7. 30 p. m. by Nannu (P. W. 2), who is brother of deceased Natthoo. The prosecution story was that Nannu was working in his ground-nut-crop field and his brother Natthu alongwith his wife Smt. Omwati was working in the adjacent field in which also there was ground-nut crop standing. 30 p. m. by Nannu (P. W. 2), who is brother of deceased Natthoo. The prosecution story was that Nannu was working in his ground-nut-crop field and his brother Natthu alongwith his wife Smt. Omwati was working in the adjacent field in which also there was ground-nut crop standing. Nearby his field is the field of accused Mangal. There was old litigation between Nannu and Natthoo on one hand and Mangal and his family members on the other. On 10. 8. 76 at about 3 p. m. Mangals son Banwari tried to pass through the chak of Nattheo in order to reach his own field and he was not allowed to do so. Upon this he lost his temper, abused Natthoo and went back to the village after threatening Nattheo. Within one hour i. e. at 4 p. m. Banwari and Teni armed with Ballams, Mangal, Latoori and Subhas armed with lathis and Smt. Ramshri wife of Mangal (who during the evidence was credited with a Khurpi which she allegedly used from the handle side) all came together and immediately started giving a beating to Nattheo with their weapons; Mangal is said to have exhorted Banwari and Teni to kill Natthoo and thereupon these persons caused Ballam injuries to the deceased. The remaining three accused caused lathi injuries to him and Smt. Ramshri is said to have given blows with the wooden handle of the Khurpi. In order to save Nattheo his wife Smt. Omwati also tried to intervene and she even fell on Nattheo to save the blows that were allegedly aimed at him. Latoori and Subhas, however, gave lathi blows and caused injuries to her also. The witnesses Babu, Bhadai and others who were present in the nearby fields came on the spot, and then the accused persons ran away towards the village. Arrangement of a bullock cart was made. Then Natthoo, who was badly injured, was lifted and placed in the bullock cart and alongwith Smt. Omwati he was driven to the Thana by Nannu. An F. I. R. was lodged there and then the injured were taken towards Hospital, but in the way Nattheo died. His wife was medically examined. ( 4 ) THE case which was originally registered under sections 147, 148, and 307 I. P. C. was, therefore, converted into one under section 302 I. P. C. at 8. An F. I. R. was lodged there and then the injured were taken towards Hospital, but in the way Nattheo died. His wife was medically examined. ( 4 ) THE case which was originally registered under sections 147, 148, and 307 I. P. C. was, therefore, converted into one under section 302 I. P. C. at 8. 15 p. m. the same night. Sri Jaipal Singh, Subinspector (P. W. 9) investigated the case. The accused persons denied the occurrence. Their contention appears to be that Smt. Omwati was the married wife of one Surajpal Singh and Natthoo had abducted her and kept her as a concubine, therefore, this occurrence was committed by Surajpal Singh and his associates and since there was a long standing enmity and previously a litigation between the deceased and his brother Nannu on one hand and Mangal and his family members on the other, they have been falsely implicated in this case. ( 5 ) THE prosecution examined in all 9 witnesses. Four of them, namely Smt. Omwati (P. W. 3), Nannu (P. W. 4), Bhadai (P. W. 9) and Surajpal Singh (P. W. 7) are eye witnesses. All others are formal witnesses including Dr. D. N. Tripathi (P. W. 2), who examined the injuries of Smt. Omwati and Dr. R. P. Yadav (P. W. 8), who conducted the postmortem examination on the dead-body of Natthoo at 5 p. m. on 11. 8. 76. Smt. Omwati has been injured in this occurrence. The factum of incident is not disputed or denied, and it stands established beyond doubt from the testimony of this injured witness (Smt. Omwati) and Nanml, who has lodged the F. I. R. as well as from the testimony of Bhadai. The statement of Surajpal Singh (P. W. 7) has been discarded by the learned Sessions Judge merely on the ground that in the site plan the Investigating Officer did not show the place from where this witness saw the occurrence. This is hardly any ground to reject his testimony, if it finds complete support from other evidence and he is otherwise held to be a reliable witness. Smt. Omwatis injuries were two. Injury No. 1 was a vertical contusion 8 cm X 1cm on the outer-side of the right leg, extending from right lateral malleolous. Around the malleolous swelling was present. Smt. Omwatis injuries were two. Injury No. 1 was a vertical contusion 8 cm X 1cm on the outer-side of the right leg, extending from right lateral malleolous. Around the malleolous swelling was present. Her second injury was also an abraded contusion 21 cm X 3/3 cm on dorsum of left foot. Abrasion was in the centre of the contusion. Ultimately both injuries were found to be simple vide Ext. Ka. 1. ( 6 ) ON the person of Nattheo there were so many as 20 injuries. Only two could be credited to Ballam namely injuries Nos. 5 and 15. Injury No. 5 was a lacerated wound which was a stab wound in the opinion of the Doctor and it was 3 1/2 cm deep on the back of the right arm above the elbow and injury No. is was also a stab wound 21/2 cm x 1 cm X 4 cm. over outer side and front of left leg middle part. Under this injury tibia bone had fractured. All other injuries were contusions or abrasions and the worst of them was injury No. 1 which was a lacerated wound 2 cm X 1/2 cm. X scalp deep on the frontal region of head in the centre 12 cm behind the root of the nose. Not only there was swelling all around this injury but there was a depressed fracture of the frontal bone as a result of this injury. The second injury was a contusion 20 cm x. 2 cm on the front of left side of the chest, extending from collar bone to epigastria region and below this injury the fifth and sixth ribs on the left side were fractured. The postmortem examination report is Ext. Ka. 5. ( 7 ) IT is undoubted that an occurrence did take place. The prosecution witnesses Smt. Omwati, Nannu and Bhadai and to our mind even Surajpal Singh, all are reliable witnesses to prove the way in which the occurrence took place. There is no dispute about the place of occurrence. It is in evidence that it rained after this occurrence and, therefore, the blood which fell on the spot was washed away. The prosecution witnesses Smt. Omwati, Nannu and Bhadai and to our mind even Surajpal Singh, all are reliable witnesses to prove the way in which the occurrence took place. There is no dispute about the place of occurrence. It is in evidence that it rained after this occurrence and, therefore, the blood which fell on the spot was washed away. It is established again that with respect to about 15 big has agricultural plot there was a long standing litigation between Natthoo deceased and his brother Nannu on One side and Mangal and his family members on the other and Mangal and his sons were in actual physical possession of that plot in spite of a Panchayat which decided that 3 or 4 big has should be handed over to Natthoo and rest may be kept by Mangal. In the revenue litigation Mangal had won but it is contended that an appeal is pending in the High Court, of which no proof has been furnished. But it remains that there was enmity as regards this plot. There were proceedings under section 145 Cr. P. C. and Nathoo had to compensate Mangal by paying him some money for these proceedings. It means, therefore, that the relations between the appellants en one hand and the deceased and his family members on the other were extremely strained. The agricultural fields of the parties are situated quite close to each other. In the background of this enmity, the prosecution version that the occurrence took place when Banwari tried to pass through the standing crop of Not the and the former was not allowed to do so, furnishes a patent motive for the occurrence. We have very carefully gone through the entire evidence of the eye witnesses and we find that it is reliable and satisfactorily proves that after Banwari was stopped from passing through the groundnut field of Natthoo, he returned to the village and collected the other appellants, who variously armed with weapons, as mentioned above, came on the spot and started an assault on Nattheo. When Smt. Omwati tried to save and fell upon Nattheo, she was also given lathi blows. When Smt. Omwati tried to save and fell upon Nattheo, she was also given lathi blows. ( 8 ) THE defence suggestion that it was actually Surajpal Singh or his associates who caused injuries to the deceased Nattheo and that Nattheo wanted to lodge a report against Surajpal Singh but Omwati prevailed upon him not to implicate Surajpal Singh in this cause and hence false report has been lodged against the present appellants, is not believable for the reasons which we record now. There is on record the document Ext. Khan I which is a report lodged by Surajpal Singh against Nattheo for an offence under section 498 I. P. C. with respect to Smt. Omwati. It is dated 8. 5. 74. It simply shows that Surajpal Singh, resident of Paltoo Naglal, complained to the police against Nattheo who had seduced his wife Smt. Omwati. This occurrence, however, took place in August, 1976, i. e. 2 years and 3 months after Surajpal Singhs report. It appeal s that Surajpal Singh had lost all interest in Smt. Omwati after lodging the report for one reason or the other; otherwise he would not have waited for such a long time to take revenge from Nattheo through this broad day light incident. The occurrence dated 10. 8. 76 took place undoubtedly at 4 p. m. In the month of August, 4 p. m. will be a time when there will be sufficient light to recognize the culprits. It is highly improbable that real culprits will be completely screened and out of enmity only innocent persons will be implicated. The allegation that Not the went to lodge an F. I. R. against Surajpal Singh but his wife did not allow him to do so is also not convincing. The report in his case was not lodged by Smt. Omwati or Nattheo. It was lodged by Nannu, brother of Nattheo. If for any reason Smt. Omwati, who was living with Nattheo and had allegedly abandoned her previous husband completely, was inclined not to implicate Surajpal Singh, there was no such reason for Ninnu not to lodge a report against Surajpal Singh. It was lodged by Nannu, brother of Nattheo. If for any reason Smt. Omwati, who was living with Nattheo and had allegedly abandoned her previous husband completely, was inclined not to implicate Surajpal Singh, there was no such reason for Ninnu not to lodge a report against Surajpal Singh. The mere fact that Nannu did not mention the name of Surajpal Singh at all in the F. I. R. illicitness that the F. I. R. was a true version of the occurrence and that the story that it were Surajpal Singh and his associates who made the assault on Nattheo does not require any further consideration. ( 9 ) IN our opinion, the four witnesses are all reliable. Smt. Omwati is injured and her presence on the spot cannot be doubted or disputed. Nannu lodged the F. I. R. and all the witnesses speak about his presence. He supports the prosecution version completely and he is a witness whose presence on the spot is established. Out of the two other witnesses, Bhadai has no agricultural field of his own in the vicinity of the scene of occurrence, but it is the consistent case of the prosecution that he was carrying Batai operations in the land of Toti Ram and it has been elicited from him that he was doing this job for the last one week. We think, his presence on the spot also cannot be doubted. Surajpal Singh (P. W. 7) is resident of village Prahladpur and his story is that he was going from his village to Ganga Garh when he saw this occurrence. The site plan Ext. Ka. 6 shows that Ganga Garh lies to the east of village Prahladpur and a Pagdandi runs by the side of the field of Nattheo between Prahladpur and Ganga Garh. So Surajpal Singhs passing through that Pagdandi at the time of occurrence is not unnatural. It will be wrong to discard his testimony completely merely on the ground that the place from where he watched the occurrence has not been shown by the Investigating Officer in the site plan. Also the argument that the name of Surajpal Singh is not mentioned in the F. I. R. as a witness is of no avail because in the F. I. R. the names of all the witnesses have not been given. Also the argument that the name of Surajpal Singh is not mentioned in the F. I. R. as a witness is of no avail because in the F. I. R. the names of all the witnesses have not been given. Some names have been mentioned and about others the words many others came have been used. In our opinion, even this witness proves his presence on the spot. From the testimony of these reliable witnesses, therefore, the prosecution case stands proved. It is established that there was an exchange of hot words between Nattheo and Banwari the same day at about 3 p. m. and Nattheo did not permit Banwari to pass through his field to go to his own field. Banwari returned to the village after threatening Nattheo with obvious consequences and Mangal, Latoori and Subhas armed with lath is and Banwari and Teni armed with ballams reached the spot and started assault at Nattheo. In the F. I. R. there is mention of the fact that Mangalexhorted Banwari and Teni to kill Nattheo, upon which Banwari and Teni gave him Ballam blows. This F. I. R. was lodged by Nannu (P. W. 14) but in his deposition he does not make mention of this so called exhortation nor does he repeat the language that he has used in the FIR. Similarly, Smt. Omwati who is injured in this case also does not say any where that Mangal exhorted Banwari and Teni and directed them to kill Nattheo. Therefore, this version of the F. I. R. which was intended to show the intention with which the assault was mounted, does not find corroboration from the testimony of the maker of the F. I. R. , namely Nannu or the injured witness Smt. Omwati we, therefore, hold that there was no exhortation by Mangal and it was never given out that the intention of the appellants was to kill Nattheo. This will bring us to the consideration of the nature of the guilt of the appellants. ( 10 ) THERE was previous enmity but this occurrence took place on a very trifling matter. The appellants all came armed on the spot. They caused a large number of injuries to Nattheo but only two were found on his vital parts. Ballam injuries are on non-vital parts of the body. Of course, under injury No. 15 tibia bone was fractured. The appellants all came armed on the spot. They caused a large number of injuries to Nattheo but only two were found on his vital parts. Ballam injuries are on non-vital parts of the body. Of course, under injury No. 15 tibia bone was fractured. It was not difficult for the appellants to have committed the murder of Nattheo on the spot because there was nobody to save him from the assault except Nannu and Smt. Omwati, and none of them used any weapon, and yet we find that except for causing one lacerated wound on the scalp and one contusion on the left side of the chest, all other injuries were caused on non-vital parts of the body. In our opinion, the intention was not to kill. It was only to assault and teach a lesson. But it is a case where several offenders indulged in diverse acts with prior concert. They assaulted Nattheo with various weapons, threw him on the ground and then caused him a number of injuries. The knowledge of likely death will be the consequence of the criminal act of beating specially when, it is made with spears and it will be attributed to each offender. ( 11 ) PART II of section 304 of the Indian Penal Code provides for punishment for culpable homicide if it does not amount to murder, if the act is done with the knowledge that it is likely to cause death but without any intention to cause it or to cause such bodily injury as is likely to cause death. Section 149 of the Indian Penal Code applies to cases in which an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, and every person who, at the time of the committing of that offence, is a member of the same assembly, has to be held to be guilty of that particular offence. 12. 12. It is thus clear from our assessment of the evidence that the assault in this case was not made with an intention to committing murder of Nattheo but since the appellants had come in a force armed with lathis and Ballams and their intention was definitely to beat Nattheo, it was an act which they did with the knowledge that it was likely to cause death and since it was committed in prosecution of their common object, while they were members of the unlawful, assembly each one of them shall be guilty, of the offence punishable under section 304, Part II, read with section 149 of the Indian Penal Cede. ( 12 ) IN the result, we agree with the learned Additional Sessions Judge that the guilt of Teni and Latoori was satisfactorily made out under sections 148 and 323/149, I. P. C. and of Mangal, Banwari and Subhas under sections 147 and 323/149, I. P. C. They were, therefore, rightly convicted for these offences and the sentence awarded 10 them by the learned Additional Sessions Judge (15 months rigorous imprisonment under section 147 I. P. C. two years rigorous imprisonment under section 148, I. P. C. and six months rigorous imprisonment under sections 323/149 I. P. C. are upheld. ( 13 ) INSTEAD of convicting the appellants under sections 302/149 I. P. C. We, however, convict them under section 304 Part II, read with section 149 I. P. C. and each one of them is awarded five years rigorous imprisonment by way of sentence. It is further directed that all the sentences of imprisonment of each appellant shall be concurrent. ( 14 ) THE five appellants are one bail. Their bail bonds and sureties shall stand cancelled. They shall surrender and be taken into custody forthwith to serve out their sentences. The appeal is accordingly disposed of. The lower courts record and a copy of this judgment shall be sent down forthwith for immediate compliance. .