JUDGMENT 1. - This appeal arises out of the convictions and sentences passed against the following accused-appellants : Gordhan, Sheonath & Maniram ) ) ) U/s 307/34, IPC 3 year's R.I. with a fine of Rs. 1,000/- (in default, 3 months R.I, each. Jhabboo U/s 307, IPC 4 years' R.I, with a fine of Rs. 1,000/- (in default, 3 months' R.I.) Facts in brief - A written report was lodged on 30-9-1978 at police station Mandawar by Ramesh Chard Meena (PW 4) alleging therein that in afternoon when along with his father (Ramkaran) in order to see & look after, reached and entered their field the appellants, Jhabboo, Sheonath, Muniram, & Gordhan, and other accused (who have been acquitted by the trial court) namely, Resham, Uganti, Bhauti & Gokul, caught hold of and entangled his father and then took beating him (Ramkaran) to their field; that, Jhabboo was having axe (Tancha a steel edged chopping tool-like axe) in his hand that, Muniram & Gordhan overpowered his father and then Jhabboo by dint of axe chopped the hands (both) of his father which were lying away with oozing blood; that Muniram was having a gun in his hand which he fired at his father; that women inflicted blows by lathi & stones; that Gordhan was armed with a spear (Maria) and that, the accused persons beat his father on his demand of the share in the cost of an engine. It has further been alleged in the report that Sampat, Narain and Bhonro also saw the scuffle and that when the informant tried to intercede and separate them in order to save his father, then sheonath inflicted lathi blow on his person. Upon this report, a case was registered for the offence; under Sections 307, 326, 324, 147, 148, 149, 342, and 447, IPC, and investigation commenced. Thereafter, challan was filed against eight accused persons and the learned trial Court framed charges under section 147, 307 & 326/149 IPC against Muniram & Jhabboo, and Under section 326, 147 against Jhabboo and Under section 307, 326 read with Section 149, IPC, as also under section 147, IPC against all the rest of the accused persons. After trial. the learned trial Court acquitted Gokul, Mst. After trial. the learned trial Court acquitted Gokul, Mst. Uganti, Bhoti, Resham of the offences charged under Sections 147, 307/149, 326/149, IPC, and found guilty the appellants of the offences charged and sentenced as indicated in first para of this judgment. Hence this appeal. 2. First contention is that there is an unexplained delay in dispatching the FIR before the Court which suggests that it was not lodged at the time the prosecution wants the Court to believe. 3. It is well settled that mere delay in dispatch of the FIR is not a circumstance which can throw out the prosecution case in its entirety as has been held in catena of decisions of the Apex Court one in Sarwan Singh v. State of Punjab, AIR 1976 SC 2304 . 4. Next contention of the appellant's counsel is that though all the prosecution witnesses involved eight persons in commission of the crime but the trial court has found their testimony as unreliable and false for four persons who have been acquitted. Therefore, these witnesses could not be relied upon for convicting the appellant learned counsel stressed. 5. I may state that the mere fact that out of many accused some are acquitted is not sufficient to entitle the rejection of the entire prosecution case. On the other hand, the Court should make every effort to disengage the truth from the falsehood and to sift the grain from the chaff rather than take the easy course of rejecting the entire course of rejecting the entire prosecution merely because there are some embellishments. 6. And, in a criminal trial in which more than one accused are involved, the Court has to deal with the case of each accused separately and has to ascertain and give findings as regards as the act or acts to have been committed by each of the accused. Thereafter the Court has to see whether what is proved in respect of each accused amounts to an offence. It is equally settled that where the gram and the chaff are so inextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution then the principle to make an attempt to separate the grain from the chaff and truth from the falsehood will not apply. It is equally settled that where the gram and the chaff are so inextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution then the principle to make an attempt to separate the grain from the chaff and truth from the falsehood will not apply. In this regard reliance can be placed upon the decision in Molu v. State of Haryana ( AIR 1976 SC 2499 ). In this view of the matter, the acquittal of the four accused by merely giving benefit of doubt does not necessarily mean that the eye-witnesses have given false statements to implicate innocent persons And it is to be ascertained as to what is the nature of the offences that each of the appellants have committed on the evidence led before the trial Court. Therefore, the evidence of each of the witnesses is to be scrutinised keeping the above principles in view, and whether on the basis of the circumstances set forth by the prosecution the charge under Section 307, IPC/307/34, IPC can be said to have been proved against the accused-appellants. Here I may state that the finding with regard to the question as to whether the charge under Section 307/or 307/34 IPC has been proved or not, should be arrived at not in an isolated manner but on the basis of the total effect of all the facts and circumstances wholly proved by the prosecution. 7. Let me turn to discuss the evidence. Dr. K D Gupta (PW 1), on 30-9-1978 posted as Medical Officer, Incharge Public Health Centre, Mahua, examined the informant, Ramesh Chand s/o Ram Karan and found one bruise & abrasion. Dr. K.D. Gupta (PW1) stated to have also examined Ram Karan whose one hand was stated to have been chopped off, apart from parcel injury on the another hand and since he was so serious, his dying declaration was recorded in his presence by the Station House Officer and the injured, Ram Karan, was referred to S.M.S. Hospital, Jaipur. Then Dr. K.D. Gupta (PW 1) deposed that he did not prepare Ram Karan's injury report as it was not desirable to disturb him at that time and he prepared only ticket of patient and mentioned therein apparent injuries. Then Dr. K.D. Gupta (PW 1) deposed that he did not prepare Ram Karan's injury report as it was not desirable to disturb him at that time and he prepared only ticket of patient and mentioned therein apparent injuries. Laxman (PW 2) did not support the prosecution case and so was declared hostile, and in his cross-examination admitted his signatures on Exhibits P 3 & P 4 (recovery memos of the weapons of the offence). Dhapa w/o Ram Karan (PW 3) deposed that on the day of incident she was at her own house and heard the noise and went towards the place of occurrence and saw that Muniram, Jhabbu, Resham, Uganti, Bhoti, Sheonath and Gokal were beating her husband whose hands were chopped off by Jhabbu, and Muniram fired gun on her husband while Sheonath inflicted lathi; and that, the engine was sold to the accused persons for Rs. 2000/- which was due to the accused persons and on demand of that amount, the accused beat her husband. She further deposed that during the arrival at the place of occurrence, she saw her father-in-law, Sultan, and Bhoriya there and that after seeing them, the accused went away from the place of incident. In her cross-examination she (PW 3) deposed that on the day of incident, she was at her house and her father in law followed her; that she started towards the place of occurrence after hearing noise; the accused went away when she was at a distance of 100 paces away from the place of incident and that on that day, the crop was standing in the fields rising upto the height of a man; that, she and her father-in-law were going to the place of incident through footpath in the fields. She (PW .3) admitted that she saw her husband lying there and did not see Muniram firing gun and that when she went, the hands of her husband were lying chopped nearby his body, so she showed off the inability to say as to which of the hands were already chopped off before her arrival to the place of occurrence. She (PW 3) also deposed that she did not sae, whether any of the accused caused injuries on the person of her son, Ramesh. 8. She (PW 3) also deposed that she did not sae, whether any of the accused caused injuries on the person of her son, Ramesh. 8. On the totality of the evidence of Dhappa (PW 3) in my view, it can safely be said that she was not an eye witness because, she was not present at the scene of occurrence and when her husband is stated to have been beaten by the accused persons and she started from her house only after hearing the noise and on her arrival at the place of incident, she saw lying chopped hands of her husband, and further her son, Ramesh has stated that he was beaten lastly by the accused, Sheonath but his mother (PW 3) denied that her son was beaten and given injuries by the accused. Furthermore, Dhappa (PW 3) has not been named as eye witness of the incident, in the FIR lodged by Ramesh (PW 4) who in his statement nowhere disclosed her name as ocular witness. Thus her statement cannot be believed and it can be said that she had given a belied version against the accused. 9. Similar is the situation of Dr. K.D. Gupta (PW 1) whose evidence cannot be read with respect to the injuries on the person of Ram Karan (PW 5) and whose evidence is also not helpful to resolve the question of culpability against the accused appellants, because the witness (PW 1) even after seeing the injuries on Ramkaran's body did not prepare any report as is admitted by him. More so, Dr. Gupta (PW 1) in his statement, as pointed out above, stated that a ticket was prepared by him mentioning therein injuries of Ram Karan and that he had referred the medical case to the S.M.S. Hospital but, surprisingly enough, neither the said ticket nor any letter of reference (as is stated by the doctor (PW l) has ever been brought on record by the prosecution, and may say that is best known to the prosecution only as to why they have detained these documents. Therefore, in these circumstances, mere oral testimony of Dr. K.D. Gupta (PW 1) with respect to the injuries of Ram Karan cannot be acted upon, inasmuch as his evidence came discrepant to the statement of Ramesh Chandra (informant, PW 4) who stated that he sustained one injury at the hands of Sheonath whereas Dr. Therefore, in these circumstances, mere oral testimony of Dr. K.D. Gupta (PW 1) with respect to the injuries of Ram Karan cannot be acted upon, inasmuch as his evidence came discrepant to the statement of Ramesh Chandra (informant, PW 4) who stated that he sustained one injury at the hands of Sheonath whereas Dr. Gupta (PW 1) has given out two injuries-one on the right knee and other on the chest left side hypochondrium region. 10. Ramesh Chandra (PW 4) deposed that at about 6 p.m. he along with his father while were coming back to their house after cutting grass through their field, his father demanded Rs 500/- said to be due against the accused, Jhabbu, Muniram etc. for the costs of an engine sold by his father to the accused, all the accused, laid seized his father and inflicted lathi blows and took his father to Banjar field where also the accused persons gave more beating to his father though he tried to intercession. However, Ramesh Chand (PW 4) has given following specific overt act done by the accused appellants. Jhabbu cut hands of his father; Muniram brought a gun and stated that he (accused) would kill and then he (accused) fired gun but it did not hit his father (Ramesh's) ; Muniram caught hold the hands of his father while Sheonath inflicted lathi blows on his person.11-12. On being questioned, the witness (PW 4) replied that Sampat Narain, Bhoriya and Budha came at the scene of occurrence. Ramesh Chand (PW 4) also deposed that the hands of his father were chapped off by Tancha (art. 1).13. The witness (PW 4) in his cross-examination admitted that he was a school going boy and on the day of occurrence he had gone to the school at 10 a.m. and came back before 5 O'clock the school is stated to be at a distance of one mile from his village and he used to go to school on foot; and when he reached his house, he found his father there and then he took meals and thereafter he came to his field alongwith his father. He also deposed that cut grass for about 10-15 minutes from the land near to their well and then came back to their house along with bales of grass. The witness (PW 4) disowned his version A to B in Ex. He also deposed that cut grass for about 10-15 minutes from the land near to their well and then came back to their house along with bales of grass. The witness (PW 4) disowned his version A to B in Ex. D. 1 where he had stated that as soon as they reached on the field, the occurrence took place. The witness further deposed that `bunjar' where his father was taken and beaten is 65-70 paces away from the well; that the gun was fired at his father at a distance of 30-35 paces from the place where his father was going and at that time none of the accused had caught hold of his father but they had laid seize his father; that, when he and his father went to the field to collect grass, the accused were in their fields; that Sampati, Bhoriya and Narain were seen by him when the gun was fired. The witness admitted that names of his mother and grand father have not been mentioned in the FIR (Ex. P. 4) and the explanation given by him was that when he wrote the report he was not in good senses. I am of the opinion that this explanation is not plausible and non-mentioning of the names of Dhappa (PW 3) and Sultan (PW 7) is fatal to the prosecution.14. From the evidence of this witness (PW 4) stated above, this much is clear that the witness and his father (Ram Karan) were seen by the appellants when they were going towards their fields and coming along with bale of grass; and further admittedly they cut grass for about 10.15 minutes, therefore, it was well known to the accused that Ram Karan was cutting grass just near to their fields but even after cutting the grass the accused did not make any attempt to inflict injury on their persons and the scuffle ensued only on demand by Ram Karan to the accused and then father was beaten. Thus, from his evidence, no inference of committing an offence under Section 307, IPC can be drawn against the accused appellants. Had the accused appellants any intention to commit the murder of Ram Karan they could not have waited till the demand of amount stated to have been due against them was made by Ram Karan. Thus, from his evidence, no inference of committing an offence under Section 307, IPC can be drawn against the accused appellants. Had the accused appellants any intention to commit the murder of Ram Karan they could not have waited till the demand of amount stated to have been due against them was made by Ram Karan. From this evidence it is also clear that Ram Karan was given beating only after demand made by him and at that time, Ram Karan sustained injuries which cannot be said to have been caused with an intention to commit his murder because the appellants were busy in their work in the fields. From the evidence of Ramesh Chand (PW 4) specific overt act against Jhabbu and Muniram can be said to have been assigned while it states that Jhabbu chopped of hands off his father by Tancha (art. 1) and Muniram caught hold of hands of his father.15. Ram Karan (PW 5) who is injured and is father of Rameshchand (PW 4) and whose hands are alleged to have been chopped off, stated in his statement that on the day of incident, he along with his son went to fetch the grass from their fields at about 4 PM and while they were coming back along with bales of grass, the accused (Muniram, Jhabbu, Gordhan, Sheonath, Gokal, Bhoti, Resham & Uganti) laid seize. This witness further deposed that he had sold his engine to the accused persons and the price was not paid to him so he had demanded the money at that time, it was stated, "stop" you are to be paid rupees". The witness stated that Muniram was having a gun which was fired at him but did not hit him, and it was fired at a distance of 80-100 paces; that Gordhan, Sheonath, Muniram caught hold of him and Jhabbu cut his hands by Tancha whereas lathi blow was inflicted by Sheonath and the women pelted stones The witness then deposed that on account of these blows and chopping off his both the hands he fell down; and after cutting his hands, by accused Jhabbu, the accused persons ran away. He (PW 5) also stated that Sampati, Bhoriya, Narain might have come afterwards.16. In his cross-examination, the witness (PW 5) stated that the engine was sold to Jhabbu and Muniram for Rs. He (PW 5) also stated that Sampati, Bhoriya, Narain might have come afterwards.16. In his cross-examination, the witness (PW 5) stated that the engine was sold to Jhabbu and Muniram for Rs. 500/- and it was sold 12 months before the incident, and the engine was jointly purchased by him and the accused persons and was being used jointly and thereafter, his share in the engine was sold for Rs. 500/-. The witness further deposed that he had been demanding the money for the last one year from the incident and for all the time, the accused persons only made promises to pay and lastly they had promised to pay in the month of Kartik which also passed away. Then Ram Karan deposed that on the day of incident, his son, Ramesh Chand went to school but he had come at 2 p.m. from the school after the close of school and he cut grass for about half an hour. The witness further corroborated the evidence of his son Ramesh Chand (PW 4) that when, they reached the field to cut grass, the accused persons were doing the work in their fields which were just near the well and he was cutting the grass at a few distance from the well and he demanded the money when he was coming back with bales of grass. The witness also deposed that when Muniram brought gun he and his son tried to run away from the place of incident and ran for 60-70 paces and at that time the gun was fired and there he was beaten and his son, Ramesh ran away. Ram Karan (PW 5) disowned his version A to B given in Ex. D. 2 which says that as soon as they reached on the field he was beaten.17. Ram Karan (PW 5) disowned his version A to B given in Ex. D. 2 which says that as soon as they reached on the field he was beaten.17. From the evidence of Ram Karan (PW 5) it appears that he was beaten at the time when he was returning back from the field after cutting grass for half an hour; that at that time, none of the accused (who were admittedly present in their field just near the place where Ram Karan was also cutting grass) did not make any attempt to inflict any injury on the person of Ram Karan; and that the beating took place only when the money was demanded by Ram Karan who in his statement admitted that his share in the engine was sold to the accused, Muniram and Jhabbu a year before the incident during which period he had been regularly demanding the money from the accused persons. Thus it is very much clear the accused-appellants were having opportunity to assault Ram Karan before his coming back to his house alongwith bales of grass and they did not give any beating to Ram Karan during a period of one year when persistently the witness (PW 5) had been demanding the money. These circumstances are sufficient to observe and hold that the accused-appellants never intended to commit murder of Ram Karan and they did not make any attempt on the life of Ram Karan. Thus, no inference of committing murder can be drawn against the accused-appellants.18. Chatru (PW 6) did not support the prosecution and so was declared hostile. Sultan (PW 7) is father of Ram Karan (PW 5). From the statement of Sultan (PW 7) it is apparent that he reached at the scene of the recurrence after beating of Ram Karan (PW 5). In these circumstances, it will be of no use to reproduce his statement and his evidence is only relevant to this extent that Ram Karan sustained injuries as his evidence does not throw any light as to who inflicted injuries on the person of Ram Karan and so it is not material and worth to be discussed.19. Bhoriya (PW8) named in FIR as eye-witness, did not support the prosecution story and thus has been declared hostile and similarly is the situation of Narain (PW 9) who also being an alleged eye-witness did not support the prosecution. Bhoriya (PW8) named in FIR as eye-witness, did not support the prosecution story and thus has been declared hostile and similarly is the situation of Narain (PW 9) who also being an alleged eye-witness did not support the prosecution. Ratan Singh (PW 1 0), on 30-9.1978 posted as Station House Officer, Mandawar, deposed that report (report) (Ex P 4) was given to him by Ramesh Chand; that he prepared seizure memo of plan of Ram Karan, and site plan (Ex P 6 & P 5) apart from Ex P 7 seizure memo of blood stain earth. His evidence is formal in character. Habib Ahmed is also a formal witness (PW 11).20. Dr. K.L. Chhangani (PW 12) has stated that on 1-10-1978 when he was posted in S.M.S. Hospital, Jaipur he examined Ram Karan (PW 5 and found eight injuries on his person which were stated to have peen caused by blunt object including injury Nos. 1 and 2 viz, Traumatic amputation of right fore arm 1" above the wrist joint; and Traumatic amputation of the left hand-three fingers of which were absent thumb and index finger were attached to the hand with the tag of skin though veins articles & bones were exposed; that injuries Nos. 2 & 7 (lacerated wound on right ankle joint) were stated to be grievous. The witness (PW 11) lastly deposed that the injuries Nos. 1 and 2 could not be caused by any sharp object. Dr. Chhangani (PW 12) nowhere in his statement stated about the general condition of Ram Karan (PW 5) and nothing of this sort has been mentioned in Ex P 16. There is nothing to indicate that general condition of the injured was poor or that injuries were sufficient to cause death in the ordinary course of nature, of Ram Karan (PW 5). In the absence of such evidence, it cannot be inferred that the intuition on the person of Ram Karan were either dangerous to life or sufficient to cause death of Ram Karan (PW 5) in the ordinary course of nature. In the absence of such evidence, it cannot be inferred that the intuition on the person of Ram Karan were either dangerous to life or sufficient to cause death of Ram Karan (PW 5) in the ordinary course of nature. In these circumstances, the learned trial court was not justified in holding the accused-appellants guilty for the offence under Section 307, IPC and further was wrong to observe that on the basis of the evidence, inference to hold culpability of Section 307, IPC, against the accused can be drawn where a hurt is caused by act which is done with such intention or knowledge that if by that act, the death is caused, the offender will be guilty of murder. In the instant case the trial court disbelieve the use of fire-arm by accused-appellant, Muniram. It eschewed the features which were sufficient to infer that the appellants never intended to commit murder of Ram Karan. I am of the opinion that the trial court failed to consider the circumstances, referred to above, which exonerate the appellants from being convicted under Section 307, IPC. Intention can be gathered from the circumstances and for that purpose, as said earlier, the circumstances are such that intention to commit murder cannot be gathered. The injury report could be helpful to draw inference against the persons who inflicted those injuries but such an inference can be drawn with the aid of evidence of the doctor who examined the injured persons.21. As discussed above, in the present case, Dr. K.L. Chhangani (PW 12) who was an expert witness and examined injuries on the Ram Karan (PW 5) nowhere mentioned in the injury report that the injuries on person of Ram Karan were dangerous in nature. Under there circumstances, the accused appellants have been wrongly held guilty of the offence under Section 307, IPC, and therefore, they are entitled to acquittal under Section 307, IPC. Accordingly, I hold that the accused appellants cannot be convicted for the offence under Section 107 and they are acquitted of this charge.22. Ram Karan (PW 5), as discussed earlier, in his Statement has stated specific overacts of accused-appellant, Jhabbu & Muniram by saying that Muniram caught hold of hands & Jhabbu chopped off his hands by using Tancha. Dr. Chhangani (PW 12) admitted amputation of both the hands of Ram Karan. Ram Karan (PW 5), as discussed earlier, in his Statement has stated specific overacts of accused-appellant, Jhabbu & Muniram by saying that Muniram caught hold of hands & Jhabbu chopped off his hands by using Tancha. Dr. Chhangani (PW 12) admitted amputation of both the hands of Ram Karan. Ramesh Chand (PW 4) and Ram Karan (PW 5) in their statements stated that Jhabbu chopped off his hands by using axe, therefore, their evidence it has come on record that sharp weapon was used by the accused Jhabbu whereas Dr. Chhangani has stated that the injuries Nos. 1 & 2 (amputation of both the hands) were caused by some blunt object.23. Now the question arises as to which of the witnesses with regard to the weapon of offence should be believed. In AIR 1961 Rajasthan p. 24, it has been observed that it should also be borne in mind that sometimes, medical officers also do not bestow sufficient care while performing examination and their opinions may not be properly formed on account of inadequate or defective examination or lack of complete knowledge. It is, therefore, hardly fair to expect a complete and perfect correspondence between medical evidence and eye testimony. Naturally, therefore, the Court must carefully examine the discrepancy and if it is reasonably open to arrive at a substantial and true version of the prosecution case. The Court should not adopt easy cure of throwing away the prosecution case on the alleged discrepancy between medical evidence and the eye testimony. I am in full agreement with which has been observed in the decision referred to above, by this Court.24. In the instant case, it is not disputed that the hands of Ram Karan (PW 5) were amputated. One of the palm of Ramkaran (PW 5) was seized vide seizure memo (Ex P 6). According to the evidence of Dr. K L Chhangani (PW 17), three fingers of the left hand were absent thumb and index finger were attached to the hand with the tag of skin and that apart, all the veins articles and bones were exposed. One of the palm of Ramkaran (PW 5) was seized vide seizure memo (Ex P 6). According to the evidence of Dr. K L Chhangani (PW 17), three fingers of the left hand were absent thumb and index finger were attached to the hand with the tag of skin and that apart, all the veins articles and bones were exposed. Thus, looking to the nature of the injuries on the hands of Ram Karan (PW 5) which is self explanatory, it is clear that fracture could be caused by a blunt object but amputation was not possible by blunt object because after sustaining injuries by blunt object on the hands, amputation could not be possible-that was only plausible with some sharp object and in the present case, from the evidence of the prosecution. It is well established that Jhabbu having tancha (a steel edged chopping tool) in his hand chopped off the hand of Ram Karan (PW 5) I think, no expert opinion in this regard is necessary and this is the matter of common sense, obviously such an opinion can be formed in common parlance. Dr. K.L. Chhangani (PW 12) admitting amputation was wrong in deposing that the injury Nos. 1 and 2 were caused by blunt object and in this regard, reliance can be placed on the testimony of Ram Karan (PW 5) injured himself, who has stated that his hands were chopped off by the axe (art.1). The medical evidence does not complete against the evidence of Ram Karan (injured, PW 5) and Ramesh Chand (PW 4). The medical evidence shows that the injured in fact sustained amputation grievous hurt. It is matter of reading and interpretation of the medical evidence relating to two probabilities. I may state that if direct evidence is satisfactory and reliable the same cannot be rejected on hypothetical medical evidence and that if medical record is properly read, it only shows two alternative possibilities but not inconsistency. Therefore, there is no reason as to why the evidence of Ram Karan (injured, PW 5) and Ramesh Chand (PW 4) with regard to Jhabbu should not be reliable. The criminal law does not require conclusive proof, it only requires proof beyond reasonable doubt. Therefore, there is no reason as to why the evidence of Ram Karan (injured, PW 5) and Ramesh Chand (PW 4) with regard to Jhabbu should not be reliable. The criminal law does not require conclusive proof, it only requires proof beyond reasonable doubt. The bare evidence of the injured (PW 5) and Ramesh Chand (PW 4) that Jhabbu chopped off the hands of Ram Karan (PW 5) by axe, proves beyond reasonable doubt that Jhabbu caused grievous hurt and is sufficient to attract the provisions of S. 326, IPC, and Jhabbu can safely be held guilty for the offence under Section 326, IPC.25. As regards other accused appellants, the allegation against the appellant Muniram, is that he caught hold of the hands but neither Ramesh Chand (PW 4) nor Ramkaran (PW 5) who can be said to be only reliable witnesses, both have stated that both the hands of Ramkaran were caught by Muniram. Moreover, their testimony as against Muniram can not be believed on this count also that Muniram was having gun in his hand as is evidence from the versions of Ramesh Chand (PW 4) and Ram karan (PW 5) because he could have achieved his target by using gun if he had any Trudge against Ram Karen (PW 5) but theory of using gun has been dis belie Ned by the trial court, itself, rightly and on this count, the testimony of Ramesh Chand (PW 4) and Ramkaran (PW 5) has been disbelieved by the trial court then in that situation, it will be unfair to accept the testimony of these witnesses against Muniram on other counts also. The injured Ramkaran (PW 5) did not at all give any detailed description about the injuries on his person except first two injuries as to how he sustained these injuries and who was the author of these injuries. Furthermore, all other injuries are simple in nature.26. Merely because the accused Muniram caught hold of the hands of the injured, it is difficult to hold that he shared the common intention of the other accused in causing the death or hurt to the injured. It is any of those borderline cases where one may with equal justification infer that the common intention was to commit murder or to cause grievous injury. But, the benefit of any such doubt must go to the accused. It is any of those borderline cases where one may with equal justification infer that the common intention was to commit murder or to cause grievous injury. But, the benefit of any such doubt must go to the accused. But, there is nothing material on record to indicate that other accused having intention to cause death or grievous hurt, had excited, instigated, prompted or exhorted accused Muniram, Gordhan or Sheonath to cause any injury. Further more, from the material on record it cannot be inferred that there was common intention to cause injuries, inasmuch as injured as well as his son both never specified the overt act done by each of the accused muchness failed to show and prove as to which of the injuries were caused by which of particular accused. Therefore, the conviction of the accused appellants Muniram, Gordhan and Sheonath Under section 307/34, IPC is therefore not so founded and established by the prosecution and they deserve acquittal.27. In the result, the appeal of the appellants Gordhan Muniram and Sheonath is allowed; their conviction and sentence for the offence under section 307/34, IPC are set aside and they are acquitted of that offence under section 307/34, IPC. They are on bail; their bail bonds stand cancelled and they need not surrender.28. However, since common intention to cause grievous hurt, as stated earlier, is found doubtful the accused, Jhabbu is only liable to be convicted under section 326 IPC instead of S. 307, IPC (for which he is acquitted along with aforesaid accused appellants) and he is sentenced to three year R.I. with a fine of Rs. 200/- (in default , he would further undergo two months' R I). Jhabbu would be entitled to get benefit of remission etc. under Section 428, Criminal Procedure Code in computation of period of his sentence undergone during trial, etc. Jhabbu is on bail; his bail bonds stand cancelled, and he be taken in custody for which a warrant of his arrest be issued and he be arrested forthwith and sent to jail in order to serve out the sentence as ordered above. To the above extent, the impugned judgment is modified.Appeal partly accepted. *******