JUDGMENT G. D. Dube, J. 1. This is an appeal against the judgment an order of Seventh Additional Sessions Judge, Gorakhpur who had convicted and sentenced each of the appellant Pahalwan Singh, Tikori, Dhautal and Dudhai alias Dudh Nath to two years R.I. under section 148, IPC, imprisonment for life under section 302 read with section 149, IPC and one year R. I. under section 323, read with section 149, IPC. Ali the sentences were directed to run concurrently. 2. The prosecution had alleged that Pheku Singh resident of village Kaleshar (Southern hamlet), P. S- Sahjanwa district Gorakhpur had enmity with the appellant Pahalwan Singh, Dhautal Yadav etc. resident of Northern hamlet of the said village. As against the excesses of the aforesaid persons (appellants) Devi Saran deceased used to raise voice, consequently they nurtured ill-will against him. At about 3.30 p.m. on 29-9-76 Devi Saran, Poojan, Phenku Singh and Ram Kawal were going to Piprauli Bazar for marketing. When they reached near the field of Ram Surat s/o Balebhadra, Pahalwan Singh, Tikori Singh, Dhautal, Dudhai, Ram Lal, Jhamman, Ramman, Nanhook, Ramdas and Shrawan suddenly came out from a sugercane field. Out of them Pahalwan Singh, Tikori Singh, Dhautal and Dubhai had spears and rest had Lathis in their hand. The appellants and their companion rushed towards deceased and his companions challenging him. When Devi Saran and his companions fled towards their village the appellants and their companion overpowered Devi Saran and started assaulting him with their weapons. Poojan and Ram Kawal were able to escape while defending themselves. Seeing Devi Saran being assaulted Smt. Kailasi widow of Jhankari tried to save him. The assailants removed her by holding her hair and kicking her away by giving a blow with leg on her chest. On the alarm the witnesses Tribhuwan Singh, Sudama Singh, Ram Pyare Singh arrived and saw the occurrence. On account of injuries Devi Saran died at the spot. After the occurrence Phenku Singh scribed a report Ext. ka 1 and went to the Police Station and lodged the report at 4.45 p.m. same day. The investigation was taken up by Narendra Pratap Narain Singh, PW 9 Sub- Inspector of Police Station. He had received the papers of the case in the town of Sahjanwa. He proceeded to the place of occurrence and prepared inquest report. ka 1 and went to the Police Station and lodged the report at 4.45 p.m. same day. The investigation was taken up by Narendra Pratap Narain Singh, PW 9 Sub- Inspector of Police Station. He had received the papers of the case in the town of Sahjanwa. He proceeded to the place of occurrence and prepared inquest report. He had sent the dead body along with police papers to the mortuary for post mortem. He interrogated the maker of the report Phenku Singh and sent the injured to the hospital for medical examination. He prepared site plan Ext. Ka 12. Same day investigation was taken up by Harmurti Singh, Station Officer of Police Station Sahjanwan. He interrogated the witnesses and submitted the charge sheet against the appellants and others. 3. The prosecution examined thirteen witnesses in all. Out of them, Pheku (PW 2), Ram Kewal (PW 3) Tribhuwan (PW 4), Ram Pyare (PW 5) and Jagdish Singh (PW 6) are eye witnesses. Dr. K. K. Mall (PW 1) had conducted the post mortem of the dead body at 3 00 p.m. on 30-9-1976 when the dead body had been presented before him by Abdul Hameed Constable (PW 7) and one other. The other witnesses, namely, Parmatma Singh, Head Moharrir (PW 8), Viveka Nand Singh (PW 10), Budhai, Clerk of the Chief Medical Officer's Office (PW 12) and Brij Behari Singh Constable (PW 13), who carried blood stained material to the office of the Chemical Examiner and Malkhana Moharrir (PW 11) are formal witnesses. Pratap Narain Singh (PW 9) is the first Investigating Officer and Hari Moorti Singh (PW 14) is the last Investigating Officer. 4. On examination of the dead body, Dr. Mall had found that the deceased was about sixty five years old. He had the following ante-mortem injuries on his person :- (1) Stabbed wound 1/2" x 1/2" x going deep inside thorasic cavity deep on left side chest 1/2" medial to the left nipple. (2) Stabbed wound 1" x 1/4" x bone deep on the left side back upper part 1/2" medial to the left shoulder. (3) Stabbed wound 1 1/2" x 1/4" x muscle deep on the outer and middle part of left upper arm. (4) Stabbed wound 1" x 1/2" x muscle deep on the outer and middle part of left upper arm 3" medial to injury No. 3. (3) Stabbed wound 1 1/2" x 1/4" x muscle deep on the outer and middle part of left upper arm. (4) Stabbed wound 1" x 1/2" x muscle deep on the outer and middle part of left upper arm 3" medial to injury No. 3. In thorasic cavity, there was half lbs. of clotted blood. The lung had penetrating wound 1/2" x 1/2" through and through on the left lung lower lobe. The stomach and small intestine were empty. The large intestine was full. The doctor had recovered only one Dhoti and one Gamchha from the pead-body. He had opined that the death was caused due to (ante mortem injuries causing shock and haemorrhage. ' 5. Dr. Viveka Nand Singh had examined the injuries of the injured witness Smt. Kailashi at 7.00 p.m. on 29-9-1976 in Primary Health Centre, Sahjanwa. No visible injury was found. Only a complaint of pain was reported by the lady to the doctor. Similarly, Poojan examined by the said doctor at 7.15 p.m. the same day had no visible injury. He too had complained of pain in his body. Ram Kewal was examined at 7.30 p.m. by DR. Viveka Nand Singh. He had found one lacerated wound 1/2" x 1/10" x skin deep on the head in the middle 2" above the fore-head. The margins were irregular and clotted blood were present. It was opined to be simple and caused by blust object. The duration was opined to be within six hours. 6. The appellants had pleaded not guilty to the charges. They had pleaded that they were falsely implicated in this case on account of enmity. They had not produced any witness in defence. After considering the evidence on record, the lower court found only four appellants guilty of the offence mentioned above. The other charged persons, namely, Ram Lal, Ramman, Jhamman, Nandu, Ram Das and Sarnam were acquitted. They were given benefit of doubt on the ground that they did not appear to have taken and active part in the actual occurrence. It is noteworthy that an appeal bearing No. 805 of 1979 ; State v. Thamman and others against acquittal was summarily rejected by a Bench of this Court on 12-7-1989. 7. It was argued by learned counsel for the appellants that in this case only four persons are said to have participated in the crime. It is noteworthy that an appeal bearing No. 805 of 1979 ; State v. Thamman and others against acquittal was summarily rejected by a Bench of this Court on 12-7-1989. 7. It was argued by learned counsel for the appellants that in this case only four persons are said to have participated in the crime. There is no finding that more than five persons had formed an unlawful assembly and committed the crime. In these circumstances, none of the appellants could be convicted, under section 302 IPC with the aid of section 149 of IPC. IT was also urged that there were several circumstances on record which go to show that the prosecution story was totally improbable. IT was urged that probably the occurrence had taken place some time in the darkness of night and as the assailants were unknown the known enemies were falsely implicated. We shall discuss each of the points and various contention of learned counsel for the appellants one by one. 8. We have heard learned Additional Public Prosecutor. He has urged that the conclusion drawn by the lower court regarding other co-accused, who have been acquitted, were considered by the Sessions Judge in a very small paragraph towards the penultimate end of the judgment. It was unfortunate that the Government Appeal, has been rejected and no appeal appears to have filed in the Supreme Court against such rejection. It was alleged that, despite rejection of the appeal, this Court can come to the conclusion, on the appraisal of evidence on record, that actually more than five persons had participated in the crime and there was every justification to hold that the appellants were guilty of the offence punishable under section 302 read with section 149 IPC. Our attention was drawn to the statement of witnesses and urged that deceased had not planned to go to the market. Hence it was not probable that appellant would have known that Devi Saran would be passing on the way and thereby would have hided themselved in a sugarcane waiting for his arrival. It was also urged that the circumstances go to show that the whole prosecution story was doubtful. Motive part of the prosecution story was also ceriticised by the learned counsel for the appellant. 9. It was also urged that the circumstances go to show that the whole prosecution story was doubtful. Motive part of the prosecution story was also ceriticised by the learned counsel for the appellant. 9. PW 2 Phenku Singh has stated that the appellants used to get the crops of the residents of sourthern hamlet grazed by their cattle. In this respect a Panchyat was usually held between the residents of northern and southern hamlet. Devi Saran used to act as a Panch and scolded appellants about their illegal acts. This witness also admitted that besides Devi Saran Singh Bilas Chamar, Lakhai Chamar, Sunder Singh, Piyare, Murat and several others were also Panches. Appellant had not beaten or abused any one of these Panches. It was argued by the learned counsel for the appellants that from the above the very case of the prosecution regarding motive becomes very doubtful. There was no motive at all for appellants to commit the murder of Devi Saran. We do not agree with the above contention. From the above it cannot be concluded that the appellants had no motive. It appears from the evidence that out of the other Panches the deceased was a man of status. Hence the appellants could have thought of removing him, as to clear their way for their misdeeds. 10. It was stated by Phenku Singh that before the occurrence one Badri Singh had moved an application before the appropriate Executive Authority about the acts of the appellants about six months before the occurrence. In that matter scuffle had taken place between Badri Singh and Pahlawan Singh. The Station Officer of Sahjanwa had started a proceedings under section 107 of the Code of Criminal Procedure. Later on this case had been compromised. IT was stated by Phenku Singh that Pahalwan Singh and other had a suspicion that Devi Saran Singh had got a report lodged by Badri Singh. This witness however, admitted that compromise had taken place between parties of 107 case before the murder. He also admitted that Devi Saran was neither a party, nor a witness in any of the proceeding under section 107 of the Code. He also could not explain any reason about the absence of the facts relating to the case started on the report of Badri Singh in his first information report. He also admitted that Devi Saran was neither a party, nor a witness in any of the proceeding under section 107 of the Code. He also could not explain any reason about the absence of the facts relating to the case started on the report of Badri Singh in his first information report. He had admitted in his further cross examination that he had no basis for his statement that Pahalwan Singh had a suspicion about the role of Devi Saran in getting the case under section 107 of the Code of Criminal Procedure started against the appellant. Since the witness had no basis at all for his statement that the appellants had suspicion, hence this introduction of motive at the time of statement is of no consequence to the prosecution. Phenku Singh has admitted that Devi Saran besides being a mad of status, was also a good agriculturist. Whenever he used to go to the market he used to keep his 'kurta' on his shoulder. When he reached near the market he used to wear his 'Kurta'. He slated that he could not see whether Devi Saran was keeping any 'Kurta' on his shoulder because he was 50 steps behind him. He, however, stated that when he saw Devi Saran he was wearing only a Dhoti. There was no 'Kurta' or 'Banivan' on his person. His 'Angauchha' was also lying near his dead body. The Investigating Officer also did not find any 'Kurta' or 'Baniyan' on the body of the deceased. The doctor had also taken only 'Dhoti and' Angauchha from the body of the deceased at the time of post-mortem. In inquest report too the investigating officer did not mention about the 'Kurta' It was, therefore, urged that the absence of Kurta as a material lacuna in evidence ond speaks that the whole story about the deceased going to the market is incorrect. 11. PW 3 Ram Kewal has stated in cross examination that Devi Saran had money in his 'Kurta'. If his statement is read with the statement of Phenku Singh it is obvious that the deceased must have been keeping his 'Kurta', with money in its pocket, on his shoulder. Accordingly to the prosecution the assailants had ambushed and surrounded Devi Saran when he reached near the sugar cane field. Devi Saran had also tried to run away but could not escape. Accordingly to the prosecution the assailants had ambushed and surrounded Devi Saran when he reached near the sugar cane field. Devi Saran had also tried to run away but could not escape. In this running the Kurta might have fallen on the ground. All the witnesses have stated that soon after occurrence hundreds of persons arrived at the spot. Who picked this 'Kurta' is very difficult for the prosecution to explain. There is no reason to disbelieve Ram Kewal. He is an injured witness. His presence at the spot can not be doubted. Thus mere absence of recovery of 'Kurta by investigating officer does not make out any fact in favour of appellants. The evidence clearly shows that Devi Saran had a 'Kurta' and money when he started for the market. 12. The next contention that the occurrence had taken place in the darkness of the night is ruled out from the evidence of the doctor. PW 1 Dr. K. K. Mal had stated in his cross-examination that stomach and small intestine were empty. The large intestine were full. The doctor had stated that it generally takes six hours for the food to pass through the stomach. Another six hours is taken for passing the food from small intestine. He stated if the death had taken place 36 hours before the post mortem examination then there ought to some decomposition of the body would have started. The cornea ought to have become soft and eyes ought to have buldged. The doctor had opined that death could have been caused between 36 hours and 18 hours from the time of post mortem. The post mortem had taken place at 3 p.m. on 30-9-1976. In this way the doctor has opined that death of Devi Saran could have taken place between 3 a.m. on 29-9-1976 to 9 p.m. same day. The learned counsel for the appellant has urged that stomach and intestine were empty, therefore, it was probable that the deceased had been murdered between 3 to 6 a.m. on 29-9-1976 in the darkness of the night. Nothing comes out on the statement of Dr. K. K. Mal in favour of the appellant. If we examine his evidence in the light of the statement of the other witnesses then the absence of food in the stomach and the intestine is fully explained. Nothing comes out on the statement of Dr. K. K. Mal in favour of the appellant. If we examine his evidence in the light of the statement of the other witnesses then the absence of food in the stomach and the intestine is fully explained. Phenku had stated towards the end of his cross-examination that Devi Saran was on fast of Nawami i.e. 9th day of Nawaratra during which the worship of Godess Durga takes place. He had also stated specifically that he had not taken any meal because he was on fast. Keeping in view the above situation the absence of food in the stomach and the intestine was the only possibility. In the above circumstances it can not be said from the absence of the food in the stomach and small intestine that the deceased was actually murdered some time in the night. The report in this case is said to have been lodged one hour 15 minutes after the occurrence. PW 8 Parmatma Singh, Head Moharrir has stated that the report was lodged at 4.45 p.m. Nothing was elicited in his cross-examination that the report was lodged at some other time. The injury report of Smt. Kailashi, Pujan and Ram Kewal Ext. Ka 14 to Ka 16 show that Constable Barister Ram had brought the injured to the Primary Health Centre Sahjanwa for medical examination. These facts coupled with statement of the eye witness revealed that the report was lodged just one hour 15 minutes after the occurrence. A very weak suggestion was made to the Head Moharrir Parmatma Singh that the report was lodged at some other time and it was ante timed. This suggestion is quite contradictory to, the contention of the appellant that the deceased had been actually murdered some time in the night between 28 and 29th September, 1976. If the murder had taken place as suggested by the appellant then report at 4.45 p.m. was highly belated. The injury on the person of Ram Kewal is also not explained by the above contention. A suggestion was made to Dr. Vivekanand Pw 10 that there could be a difference of two hours on either sides in the duration of injuries caused on the person of Ram Kewal. Only this was suggested to Ram Kewal in cross examination that the injury on his persons was fabircated. A suggestion was made to Dr. Vivekanand Pw 10 that there could be a difference of two hours on either sides in the duration of injuries caused on the person of Ram Kewal. Only this was suggested to Ram Kewal in cross examination that the injury on his persons was fabircated. We do not find any material to show that the injuries on the person of Ram Kewal was fabircated. It was a lacerated wound on the the head 2" above the forehead. Dr. Vivekanand Pw 10 has admitted that if anybody takes the courage then he can get an injury inflicted on his head on the place where the injury was found. We do not find any material to show that Ram Kewal was so much interested in getting the injury inflicted on his person as to make himself a reliable witness in this case. Only a very interested person will take a courage of getting an injury inflicted on the top of his head. Head a very vulnerable and important part of the body. Nobody will take risk of getting an injury inflicted on his head for the purpose of becoming a witness in a criminal case. 13. Thus from the scrutiny of the whole evidence on record we come to the conclusion that the occurrence had actually taken place at 3 p.m. as alleged by the prosecution. There is no force in the contention of the defence that the occurrence had taken place some time in the darkness. 14. It has been argued that on the date of occurrence it was not a market day, hence there was no purpose of the deceased going to the market. This contention is not correct. Prosecution witnesses had stated that Piprauli is a block office. Piprauli market remains open on every day. The grain market is held on Sunday when grain dealers assemble. Devi Saran had to purchase the cloth only. So Devi Saran could have purchased his requirement i.e. cloths from the shops which remain open every day. The defence had doubted the presence of witnesses Phenku Singh PW 2, Tribunwan PW 4 and Ram Pyare PW 5. It was urged that these persons had no bnsiness to remain present near the place of occurrence. So Devi Saran could have purchased his requirement i.e. cloths from the shops which remain open every day. The defence had doubted the presence of witnesses Phenku Singh PW 2, Tribunwan PW 4 and Ram Pyare PW 5. It was urged that these persons had no bnsiness to remain present near the place of occurrence. The other persons whose houses exist near the place of occurrence and those who were harvesting the crops near the filed of occurrence were not examined. It has been stated by Phenku Singh that the labourers who were harvesting the crops had gone to take their meals. Phenku Singh also stated that these labourers generally take their meals between 12 noon to 3 p.m. Thus from the statement of this witness it transpires that probably by the time of occurrence the labourer had not arrived on the field of Sudama. That is why it was not at all probable that labourer would have seen the occurrence. Phenku Singh has also stated that houses of Sita Ram, Chander, Bechan, Patiram and Rekha are situated at a distance of 50-70 steps. None had arrived from these houses at the time of occurrence. He also stated that all the persons of these houses had gone for harvesting their crops. The occurrence had taken place towards the ends of March. This period is the harvesting season of Ravi crops. It is, therefore, probable that the residents of nearby houses might have gone for harvesting their crops. In this way it was quite probable that none might have been present at these houses. Phenku Singh has stated that he was going to see his field. His field is situated a little towards north-east of the sugercane field of Ram Murat. The site plan Ext Ka 12 shows that towards south of the sugarcane field of Ram Murat there runs a tubewell 'Nali' on which there is a foot-path. Consequently it is obvious that Phenku Singh could have been going on that way to see his field. It is not very unusual for a agriculturist to go to see his field at a time when the harvesting is going on. He is the scribe of the report. He had lodged the report soon after the occurrence. His presence at the spot can not be doubted. 15. PW 4 Tribhuwan is son of Devi Saran deceased. It is not very unusual for a agriculturist to go to see his field at a time when the harvesting is going on. He is the scribe of the report. He had lodged the report soon after the occurrence. His presence at the spot can not be doubted. 15. PW 4 Tribhuwan is son of Devi Saran deceased. He stated that he was sitting at the door of Ram Murat. When his father passed in front of the door of Ram Murat he informed him (Tribhuwan) that he was going to purchase cloth. He stated that his father had proceeded a little ahead, he heard an alarm and saw the appellants and his companions assaulting his father with their weapons. It has been argued that his presence at the spot was not at all probable. In paragraph 8 of his cross-examination he has stated that Ram Murat was Accountant of manure. He had gone to the house of Ram Murat to have a talk about the purchase of manure. When he reached the house of Ram Murat the wife of Ram Murat informed that her husband had gone in the village and he will soon come back hence he was waiting for Ram Murat. The site plan Ext. Ka 12 shows that the house of Ram Murat faces north. It is at a very little distance from the place of occurrence. Therefore, the presence of this witness at the spot is not at all improbable. The reason given by him is convincing. 16. Ram Pyare PW 5 has also stated that he was going to see his field which is situated towards east of the village. He also stated that when he had reached near the house of RAM Murat he heard the alarm of Devi Saran and others. His name has been mentioned in the first information report. We have held above that the report was lodged quite promptly. Since the name of this witness is mentioned in the first information report and he gave a plausible explanation for his presence at the spot; there is no good ground to hold that he was not present at the spot and had not seen the occurrence. Jagdish Singh PW 6 another eye witness stated that his old house is situated at a distance of 100-150 steps from the field where Devi Saran was murdered. Jagdish Singh PW 6 another eye witness stated that his old house is situated at a distance of 100-150 steps from the field where Devi Saran was murdered. He stated that soon after he heard the alarm, he rushed and saw the occurrence. He stated in his cross-examination that when he reached near the western 'Mehra' of the field of Indrajeet he saw the appellants and others away. He stated that he had asked Phenku Singh as to who had committed the crime. From this it was argued that Jagdish Singh is not an eye witness and that is why he asked Phenku Singh as to who had committed the crime. Phenku Singh had admitted that he bad seen the assailants coming out from the field where Devi Saran was murdered. In these circumstance for Jagdish Singh to have inquired from Phenku Singh as to who had committed the murder, his presence at the spot also can not be doubted. He is the scribe of the report. He had stated that Phenku Singh had narrated the whole occurrence to him and he had written the report in his own words. 17. Thus five eye witnesses out of which one is an injured witness stated that the appellants and their companion had committed the murder. The learned Sessions Judge had held that other assailants had not taken any active part in the murder, therefore, they were given benefit of doubt. No doubt the government appeal against the acquittal of the remaining accused Jhhamman and others has been summarily rejected, we however, feel that despite the acquittal it is obvious that atleast four appellants had participated in the crime. They had been hiding in the sugar cane of Ram Murat. They had come out of the field suddenly and killed Devi Saran by inflicted spear blows on him. In this way the appellant had at least a common intention of murdering Devi Saran. Even if the appellants are not vicariously liable for the offence of murder u/Sec. 302 read with section 149, of the Indian Penal Code, they are liable for conviction u/Sec. 302 with the aid of section 34 of the Indian Penal Code. The fact that the appellant had been waiting for arrival of Devi Saran shows their pre-planning. The appellants were armed with spear. This shows their pre-planning. The fact that the appellant had been waiting for arrival of Devi Saran shows their pre-planning. The appellants were armed with spear. This shows their pre-planning. The joint liability can be proved either from conduct or from circumstances or from incriminating fact. It depend on proof of facts which establishes pre-concert between accused. Hence on the proof of facts in this case we can not hesitate to apply section 34 of the Indian Penal Code in this matter. 18. It has been argued that it was not at all possible to appellant to have known about the planning of Devi Saran that he would be going to the market it can not be said that the appellants knew about his planning. IT is difficult for the prosecution to state about the minds and planning of an accused person. Only in rare matter the prosecution is able to know the way in which the mind of the accused had acted in planning the whole offence. Since the occurrence had taken place in broad day light and there is overwhelming evidence to prove that the appellants did participated in the crime and in the manner alleged by the prosecution we can not doubt the prosecution story simply for the failure of the prosecution to explain as to how the appellants happened to hide themselves in the sugar-cane filed of Ram Murat. Investigating Officer had found the sugar-cane field of Ram Murat trampled with feet. Consequently this circumstance also goes to show that the appellants had actually planned to murder Devi Saran. For the reasons mentioned above we find that the conclusions arrived by the lower court are not erroneous. Only it has wrongly applied the provisions of section 149 of Indian Penal Code. It sought to have applied section 34 of Indian Penal Code. Each of the appellants are guilty of the offence punishable under section 302 read with section 34' of Indian Penal Code. They have been rightly sentenced with imprisonment for life. 19. The appeal is dismissed. Bail bonds of the appellants are rejected. Appellants be taken into custody to serve out the sentences. Appeal dismissed.