H. C. MITTAL, J. The appellants Duli and Chhotey have been convicted and sen tenced under Sections 302 and 324 read with Section 34 I. P. C. to life imprisonment and 4 months rigorous imprisonment, respectively. Appellants Ram Charan and Anil have only been convicted and sentenced under Sections 326 and 324 read with Section 34 I. P. C. and sentenced to 6 years and 4 months rigorous imprisonment respectively by Sri Parmatma Saroup, learned Sessions Judge, Budaun, on 24. 8. 1978. 2. The prosecution case, in brief, is that on 6. 3. 77 at about 8. 00 a. m. when Rampal (P. W. 4) alongwith Dal Chand deceased was in the field of Dhappal and bringing hemp from the pond nearby and coming to their village Bhatoli within the police station Binawar in district Budaun, the appellants Duli and Chhotey armed with Kantas, Ram Charan armed with a spear and Anil armed with a lathi suddenly accosted and attacked them. Both Dal Chand and Ram Pal received injuries. Their cries attracted Rajpal (P. W. 1), Mitthoo (P. W. 5) and Mehandi Hasan who also witnessed the occurrence. On seeing the witnesses the appellants made good their escape. Thereafter the injured were taken to the Police station Binawar where Dal Chand orally lodged F. I. R (Ext. Ka 5) at 11. 30 a. m. and a case under Sections 323 and 324 I. P. C. was registered by P. W 9 Constable Inderpal Giri. The injured were sent to Primary Health Centre Binawar for examination of their injuries and as any Doctor was not there, they were sent to District Hospital Budaun, where they were medically examined by Dr. VP. Kulshrestha in between 2. 30 and 2. 45 p. m. Dal Chand was admitted in Hospital and subsequently on 10. 3. 77 at 9. 55 p. m. he succumbed to his injuries. Thereafter on receipt of report of his death from the hospital, the case was converted under Section 304i. P. C. The investigation of the case was conducted by P. W. 6, Sub-Inspector Umed Singh, who was transferred before completion of the same and the charge-sheet was subsequently submitted by P. W. 7 Sub-Inspector Shriman Tyagi. 3. At the trial, after committal of the case, the learned Sessions Judge framed charges under Sections 302 and 307 read with Section 34 I. P. C. against all the accused. 4. 3. At the trial, after committal of the case, the learned Sessions Judge framed charges under Sections 302 and 307 read with Section 34 I. P. C. against all the accused. 4. The appellants pleaded not guilty and have denied their participation in the occurrence. The prosecution examined 9 witnesses of whom P. W. 1 Rajpal, P. W. 4 Ram pal, the injured and P. W. 5 Mitthoo are the eye-witnesses of the occurrence and they corroborated the prosecution story as stated above. 5. P. W. 3 Dr. V. P. Kulshrestha had examined P. W. 4. Rampal and Dal Chand deceased at District Hospital Budaun on 6. 3. 77 at 2. 30 p. m. and noted the following injuries on their person. Injuries of Dal Chand vide injury report (Ex. Ka-3 ). (1) Incised wound 6 cm x 1 cm x skull bone deep on right side parietal region 8 cm above right ear. Injury kept under observation advised X-ray. (2) Incised wound 3 cm x 0. 5 cm x scalp deep 5 cm below and posterior to injuries No. (1) with swelling around. (3) Contusion 6 cm x 3 cm on right eye brow with swelling on whole of the upper eye-lid. (4) Contusion 7 cm x 4 cm on right forearm middle 1/3 posterior aspect. (5) Contusion 2 cm. x 2 cm on right hand dorsal aspect - cut the root of index finger injury kept under observation. Advised X- ray. (6) Incised wound 2 cm x 0. 5 cm x bone deep left leg middle 1/3 rd front. (7) Contusion 3 cm x 1 cm on left temporal region with swelling. (8) Abraded contusion 0. 5 cm x 0. 5 cm on top of head with swelling around it. Injuries of Rampal (1) Incised wound 2. 5 cm x 1 x bone deep on the left side head 2 cm above left eye-brow. (2) Lacertated wound 1 cm x 0. 5 cm x bone deep on the dorsum right little finger. (3) Abraded contusion 1 cm x 1 cm on dorsum of right ring finger injury kept under observation and advised X-ray. (4) Abrasion 0. 5 cm x 0. 5 cm on right middle finger. (5) Contusion 3 cm x 2 cm on left forearm lower 1/3 injury kept under observation advised X-ray. (6) Contusion 2 cm x 1 cm left side upper arm lower 1/3 rd. (4) Abrasion 0. 5 cm x 0. 5 cm on right middle finger. (5) Contusion 3 cm x 2 cm on left forearm lower 1/3 injury kept under observation advised X-ray. (6) Contusion 2 cm x 1 cm left side upper arm lower 1/3 rd. In the opinion of Dr. Kulshrestha the incised wounds were caused by some sharp edged weapon while the remaining injuries were caused by some blunt object except injury No. 4 of Rampal which could be caused due to friction. The injuries were fresh and could be caused within 1/4 day. 6. P. W. 2, Dr. N. P. Singh had done autopsy on the dead body of Dal Chand and had proved the post- mortem report. He had noted besides the aforesaid injuries on the person of Dal Chand on internal examination fracture of right parietal bone and fracture of temporal and left parietal bone. The membrances and brain were conjusted. In his opinion the death was caused on account of coma due to head injuries. 7. P. W. 9 constable Indrapal Singh had proved Ex. Ka-5 the chick report reported by him at the dictation of Dal Chand, the injured. The remaining are formal witnesses. 8. In defence to evidence was adduced. 9. The learned Sessions Judge believed the prosecution evidence, hence convicted and sentenced the appellants as stated above. On being aggrieved they have preferred this appeal. On their behalf it was urged that the prosecution evidence was of highly interested witnesses. The F. I. R. was wholly tainted and it could not be written at the dictation of Dal Chand, the deceased. The entire investigation was unfair and it could not be said how the incident had occurred and injuries caused as the happening of the occurrence before day break could not be ruled out. 10. The fact that both Dal Chand deceased and Ram Pal (P. W. 4) had received injuries on 6. 3. 77 at about 8 a. m. or before that time and as a result of the injuries received Dal Chand subsequently died on 10. 3. 77 cannot be doubted in view of the prosecution evidence and the same has also not been questioned on behalf of the appellants. The main question is, whether or not these appellants were responsible for causing the injuries to the deceased and Ram Pal injured in the manner as alleged by the prosecution. 3. 77 cannot be doubted in view of the prosecution evidence and the same has also not been questioned on behalf of the appellants. The main question is, whether or not these appellants were responsible for causing the injuries to the deceased and Ram Pal injured in the manner as alleged by the prosecution. 11. The main contention on behalf of the appellants has been that the F. I. R. (En. Ka-5) could not be written at the dictation of Dal Chand, the deceased at 11. 30 a. m. at Police Station Binawar on account of the head injuries received by him which must have rendered him wholly unconscious. On behalf of the prosecution besides the testimony of Ram Pal P. W. 4, the injured, that in his presence Dal Chand had dictated the contents of the F. I. R. (Ex. Ka-5) at P. S. Binawar, there is also evidence of P. W. 9 head constable Inderpal Singh that at the dictation of Dal Chand he had scribed the report and thereafter he had sent him alongwith Ram Pal for his medical examination. In his cross-examination he has denied that the persons who had accompanied the injured had dictated the report. He has also denied that Dal Chand was unconscious at that time. The testimony of P. W. 4 Ram Pal was sought to be challenged on the ground that he has not hesitated, in supporting the fact that the report was dictated by Dal Chand, to state that subsequently the I. O. on 8th March had recorded the statement of Dal Chand and that till his death on 10th March Dal Chand was fully conscious and was talking and has been taking his meals as well. That from the testimony of Dr. K. P. Kulshrestha (P. W. 3) it is clear that when he admitted Dal Chand in the hospital and had made entries in the head ticket he was semi-conscious and talking irrelevant and in coherently. He had, however, not made this observation in the injuries report. The bed head ticket (Ex. Ka 3) specifically contains that it was prepared at 3. 10 p. m. at midnight in between 6/7. 3. 77, the general condition was noted as very poor, pulse 102 per minute and the patient was having convulsions and was restless. At 8. 00 a. m. on 7. 3. The bed head ticket (Ex. Ka 3) specifically contains that it was prepared at 3. 10 p. m. at midnight in between 6/7. 3. 77, the general condition was noted as very poor, pulse 102 per minute and the patient was having convulsions and was restless. At 8. 00 a. m. on 7. 3. 77 onwards till death on 10th March 1977 about his condition it is specifically noted that he was unconscious. It was, therefore, argued that the testimony of P. W. 4 Ram Pal was, prima facie false, and he has made the statement that Dal Chand remained fully conscious till 10th intentionally with a view to show falsely that when the F. I. R. was lodged and statement was recorded by the I. O. under Section 161 Cr. P. C. in the hospital Dal Chand was conscious. 12. It was also pointed out that in view of the testimony of Dr. V. P. Kulshrestha at the time when the patient had come to the hospital he was semiconscious, he could not be conscious when the report was lodged at 11. 30 a. m. on the other hand, it was pointed out that the gap, in between lodging of the F. I. R. and examination at 2. 45 p. m. by Dr. Kulshrestha of the deceased, was of more than three hours and therefore, it could not be said that at 11. 30 a. m. Dal Chand was not in a position to make the statement contained in the F. I. R (Ex. Ka 5 ). It was also pointed out that in the cross-examination of P. W. 9 head constable Inderpal Singh it was only suggested that he was unconscious to which the witness replied in the negative and that part of the statement was correct in view of the testimony of Dr. Kulshrestha (P. W. 3) that at 2. 45 p. m. when he had examined Dal Chand in the hospital he was semi-conscious. 13. On behalf of the appellants reliance was also placed on the testimony of P. W. 2 Dr. N. P. Singh, who had done the autopsy on the dead-body of Dal Chand deceased, that after receipt of the injuries it was less probable that the deceased could speak and dictate the F. I. R. after three and half hours of the receipt of the injuries. N. P. Singh, who had done the autopsy on the dead-body of Dal Chand deceased, that after receipt of the injuries it was less probable that the deceased could speak and dictate the F. I. R. after three and half hours of the receipt of the injuries. He also stated that after receipt of those injuries the patients sensorium must have been disturbed and after three and half hours he must have either become semi-conscious or unconscious. The tes timony of Dr. N. P. Singh who had done the autopsy for appreciating whether Dal Chand was conscious or semi-conscious or was at all in a position to speak at 11. 30 a. m. cannot be preferred over and above the testimony of P. W. 3 Dr. Kulshrestha who had examined Dal Chand when he was alive and had seen the actual condition and noted the same though not at 2. 45 p. m. when he prepared the injury report, but had noted the same in the bed head ticket at 3. 10 p. m. as semi- conscious. In view of the testimony of Dr. Kulshrestha it cannot be said that at 11. 30 a. m. Dal Chand must have become unconscious and could not speak particularly when he was only semi-conscious till 3. 10 p. m. when the bed head ticket was prepared and at mid-night he started having convulsions and became restless and even at that time he was not unconscious as his unconsciousness was noted for the first time in the hospital in the bed head ticket at 8. 00 a. m. on 7. 3. 77. 14. According to the New Lexicon Websters Dictionary semi-conscious means half, or in part or to some extent or partial or not complete, that is partially or incompletely fully conscious. 15. consciousness means the state of being conscious, that is, being in ones senses, aware of the ones surroundings and mentally and emotionally active, as opposed to sub-conscious mental processes. 16. Thus, the stage of semi-consciousness does not mean that the person was wholly unconscious and was not aware of his surroundings or was not at all mentally active. 15. consciousness means the state of being conscious, that is, being in ones senses, aware of the ones surroundings and mentally and emotionally active, as opposed to sub-conscious mental processes. 16. Thus, the stage of semi-consciousness does not mean that the person was wholly unconscious and was not aware of his surroundings or was not at all mentally active. The very fact that Dal Chand had become unconscious at 8 a. m. on the following day shows that after the receipt of the injuries he must have been conscious and even if not fully, partially and would have been in a position to state the contents of the F. I. R. as recorded in Ex. Ka 5 just about three and half hours of the occurrence. Hence in view of the evidence on record there is no reason to disagree with the conclusion of the learned Sessions Judge that Dal Chand was in a position to make the F. I. R. and the same was recorded at his dictation. 17. At this stage it is, however, not irrelevant to mention about the statement of the deceased recorded by the I. O, on 8th March 1977. The same has already been rejected by the learned Sessions Judge and prima facie it does not inspire any credence in view of the fact that Dal Chand had become unconscious at 8 a. m. on 7. 3. 77 and remained uncon scious till he died on 10th March, 1977. Thus, besides the version of the deceased himself in Ex. Ka 5 the F. I. R which is admissible under Section 32 of the Evidence Act there is also evidence of P. W. 4 Ram Pal the injured. He had received as many as six injuries of which one was incised wound 2. 5 cm x 1 cm x bone deep on left side of head 2 cm above left eye-brow which obviously could not be said to be self-inflicted or fabricated nor any suggestion was given to Dr. Kulshrestha who had examined the injuries of Ram Pal (P. W. 4) that his injuries could be self-inflicted or fabricated or that in fact he had not received any injury, and he prepared a fictitious injury report. Kulshrestha who had examined the injuries of Ram Pal (P. W. 4) that his injuries could be self-inflicted or fabricated or that in fact he had not received any injury, and he prepared a fictitious injury report. Thus, the presence of the injuries on the person of P. W. 4 Ram Pal are the hall mark about his presence at the scene of occurrence which could not be doubted. The occurrence had taken place at 8. 00 a. m. During the course of arguments it was however submitted that the occurrence could have also taken place before the day-break during darkness. However, Ram Pal (P. W 4) has stoutly repelled the suggestion that the occurrence had taken place in the night. There is nothing on record which might indicate that the occurrence had in fact not taken place at 8 a. m. Moreover, the report was lodged at 11. 30 a. m. Raj Pal (P. W. 1) had taken the injured to the hospital and no suggestion was given to him that the occurrence had taken place in the night. P. W. 5 Mitthoo another eye witness had also stated that the occurrence had taken place in the morning and no suggestion was given to him also in his cross- examination that the occurrence had taken place in the night. He has also stoutly repelled the suggestion that the injured was unconscious and was not speaking. All the witnesses have not given the time at 8. 00 a. m. but have used the phrase "chhoti Chhakwar" which would mean "morning break-fast time. " 18. On behalf of the appellants much emphasis was laid on the contention that the occurrence might have taken place earlier before dawn and that it was after the dawn that the deceased and injured were found lying there and that a false report was lodged. There is nothing on record which might indicate that the occurrence had not taken place at 8 a. m. as alleged. Moreover, the presence of the injured Rampal P. W. 4 at the scene of occurrence cannot be doubted and that he had received such injuries, as contained in the injury report, which could not incapacitate him in moving from the field to the village abide which is not far off. Moreover, the presence of the injured Rampal P. W. 4 at the scene of occurrence cannot be doubted and that he had received such injuries, as contained in the injury report, which could not incapacitate him in moving from the field to the village abide which is not far off. Thus we do not find any force in the contention that the occurrence had not taken place at 8 a. m. but had taken place before the day break. 19. It was next urged that even if the presence of Rampal P. W. 4 was believed his testimony on that ground would not become reliable against the appellants as he could still implicate them falsely because of some oblique motive. No doubt, the injured could implicate some more persons falsely but he would not leave the real assailants. It was pointed out that no spear injury was found on the person of the deceased and the nature of injuries clearly indicate that this witness had no compunction to falsely implicate. Ram Charan who is alleged to be armed with a spear. As regards Ram Charan, he is already dead and the appeal against him stands abated. That apart, injury No. 2 incised wound 2 cm x 0. 5 cm x bone deep on left leg middle 1/3rd front could even be caused by a spear as the edges of the spear are sharp. That apart, it is not necessary that in a melee injuries of all the weapons which are wielded by the appellants are duly received and, therefore, even if no injury of spear was found the testimony of Ram Pal P. W. 4 could not be discredited on that account. 20. On a consideration of the above evidence on record as discussed above, we have no reason to doubt that all the appellants, namely, Duli, Chhotey, Ram Charan and Anil were the assailants and that Duli and Chhotey were armed with Kantas, Anil was armed with a lathi while Ram Charan was armed with a spear and all of them attacked the deceased Dal Chand and injured Rampal P. W. 4. 21. The next question which remains for determination is what offence was com mitted by the appellants. 21. The next question which remains for determination is what offence was com mitted by the appellants. There is force in the contention made on behalf of the appel lants that there is no evidence on record to clearly indicate that the intention of the appellants was to kill Dal Chand. According to the version of the deceased, as given in the F. I. R. Ext. Ka 5, when he along with Rampal was coming after taking out hemp from the pond, in the way near the tube-well of Bachchoo Singh these appellants, who were armed with weapons, met them and they accosted them "hose me aao aaj tumhe dekhenge" P. W. 4 Ram Pal has also deposed that the appellants had stated "hosh me ho, aaj ham tumhe dekhenge" and immediately thereafter they started beating them. These words used by the appellants did not clearly indicate the intention to kill but only to thrash them, i. e. to give them beating. In the evidence no immediate motive for this occurrence has been shown except that the proceedings under Section 107/117 Cr. P. C. in between the injured and deceased, who are Dhobis, with Jatavs and Christians, who are appellants, were then pending. There was no immediate cause to either of the appellants to commit the murder of Dal Chand or of Ram Pal. That apart, it is in evidence that no injury was caused to them when they had fallen down on the ground and as soon as the witnesses arrived and they intervened and shouted "kya mar he daloge" the appellants had stopped wielding their weapons and left the place of occurrence. The evidence thus clearly points out that the whole incident was a sudden development and the appellants had acted at the spur of moment and without pre-meditation and without any intention to commit murder of any of their victims as they had stopped wielding their arms the moment they were reprimanded by the witnesses "kya mar hee daloge. " Thus from the conduct of the appellants also it is apparent that they did not intend to commit the murder. 22. That apart, the trial court did not hold all of them guilty of common intention to kill as two of the appellants of, viz. " Thus from the conduct of the appellants also it is apparent that they did not intend to commit the murder. 22. That apart, the trial court did not hold all of them guilty of common intention to kill as two of the appellants of, viz. Ram Charan and Anil have been found quility of the offence under Section 326/34 I. P. C. only and there is no state appeal against that decision. 23. In the circumstances of the case, the appellants counsel has succeeded in making out that the appellants had no intention to commit the murder. However, from the weapons used, that is, Kantas by both Duli and Chhotey and fatal injuries were inflicted on the head it can be safely inferred that both had the knowledge that their act was likely to cause death and as death was caused, hence they are to be held liable and convicted under Section 304 Part II read with Section 34 I. P. C. 24. The other two appellants, namely, Ram Charan and Anil have been convicted under Section 326 read with Section 34 I. P. C. Appeal of Ram Charan stands abated on account of his death. Ram Charan was armed with spear while Anil was armed with lathi. No grievous spear injury prima facie was caused to the deceased. However, injury No. 4 contusion 3 cm x 1 cm on left temporal region with swelling on whole of the upper eye-lid was caused by lathi and it had also resulted into fracture of left temporal and left parietal bone as given in the post-mortem report, Ext. Ka-1. Thus Anil appellant is to be held guilty of the offence punishable under Section 325 I. P. C. 25. All the appellants are further liable under Sec. 324 read with Sec. 34 I. P. C. for causing simple injury to Ram Pal as held by the trial Judge. 26. Considering that the occurrence had taken place on 6. 3. 77 and now more than 13 years have elapsed and all the appellants have also been in prison for some time and they are at large for over 12 years, in our opinion, they need not be sent to Jail for further period at this stage, Learned counsel for the appellants had no objection if instead of awarding them further imprisonment some fine be imposed on them. Hence it would be in the fitness of things if the appellants Duli and Chhotey, who are found guilty for the offences under Sec. 304 Part II and Sec. 324 I. P. C. both read with Sec. 34 I. P. C. each is sentenced to the period already undergone and pay a total fine of Rs. 50,00. 00 only and in default 3 years rigorous imprisonment. Appellant Anil is found guilty of the offences under Sees. 325 and 324/34 I. P. C. He is sentenced to the period already undergone and pay a fine of Rs. 40,00. 00 only, and in default two years rigorous imprisonment. The fine be paid within three months. If the amount of fine is realised, then the same be paid to the widow of deceased Dal Chand and if she is dead, then to Ram Pal P. W. 4 and other legal heirs of the deceased Dal Chand. We accordingly allow the appeal in part. 27. The appeal of Ram Charan, who has died during the pendency of the appeal, stands abated. Appeal partly allowed. .