JUDGMENT U. K. Varma, J. 1. This government appeal is against the judgment and order of Sri Ruri Mal, I Additional Sessions Judge, Rampur, dated 31 - 5-78 acquitting all the respondents Chand Khan, Sharif Khan, Shabbir Khan, Shabbu, Salim Khan, Mahboob Khan, Sajian, Bulley Khan and Ishtiaq Ali of the charges under sections 452, 302, read with sections 149, 325 read with sections 149, 324, read with section 149 and 323 read with section 149 of the Indian Penal Code, Shabbu under Sections 302 and 148 IPC, Bulley Khan, Sharif Khan, Shabbir Khan and Salim Khan under section 147 IPC and Chand Khan, Sajjan Khan, Mahboob Khan and Ishtiaq Ali under section 148 IPC. 2. It has not been assailed that the deceased Shah Alam, bis cousin Fahim PW-6 and also the respondent Chand Khan were engaged in Kar- chobi business. Aslam PW-7 aged about 7 to 8 years had earlier been working for Chand Khan. He, however, left his service and joined the set up of Fahim Khan - On 26-5-77 Chand Khan, Shabbu Khan and Ishtiaq Khan went to the workshop of Fahim Khan and insisted on taking back Aslam to work for Cband Khan. When Fahim prevented them from doing so, he was assaulted. Fahim lodged a report, about the matter at the police station concerned. The prosecution case is that the deceased Shah Alam and Fahim PW 6 used to do the Karchobi business jointly. As adequate accommodation was not available at one single place, they had two workshops one, on the first floor of the house of Mohammad Jama Khan and the other in the room of Allah Rakhe. The prosecution witness Fahim Khan PW-6 supervised the former 'adda' and Shah Alam deceased the latter one. The respondent Chand Khan having shown his temper to Fahim during the day for having deprived him of the services of Aslam went alongwith the eight respondents Shabbu Khan, Sajjan Khan, Mahboob, Ishtiaq Ali, Bulley Khan, Sharif Khan, Shabbir Khan and Salim Khan late in the evening to Sham Alam, the other partner in business, to teach him a lesson more so as Fahim Khan had lodged a report against him, Shabbu Khan and Ishtiaq Ali. The respondents Chand Khan, Shabbu Khan, Sajjan Khan were carrying 'Chhuri', Mahboob Khan and Ishtiaq Ali 'Chakoo' and Bulley Khan, Sharif Khan, Shabbir Khan and Salim Khan 'dandas' at that time. The respondents Chand Khan, Shabbu Khan, Sajjan Khan were carrying 'Chhuri', Mahboob Khan and Ishtiaq Ali 'Chakoo' and Bulley Khan, Sharif Khan, Shabbir Khan and Salim Khan 'dandas' at that time. The deceased Shah Alam then was sitting on a cot in the open space in front of his house with Irshad Khan, Laber Khan and Kaiser Kban. The respondents without giving any time to them started assaulting them Chand Khan gave two 'Chhoori' blows to Shah Alam, and Bullo Khan, Shareef Khan, Shabbir Khan and Saleem Khan assaulted him and Irshad Khan, Babu Khan and Kaiser Khan with dandas. On their crying aloud, the informant Keramat All, the father of the deceased Shah Alam, came out from inside his house. The witnesses of the Mohalla named Kalian Miyan, Saadat Khan, Arif Khan, Sardar Dulle Khan, Afsar Khan and Rahat Khan too arrived. The respondents, as if it was not enongh, entered the house of the informant and caused injuries to his daughter Naeema Parveen in her cheek and his sister-in-law Raees Begum in her thigh and chest. While the respondents were coming out of the informant's house, the respondent Shabbir Khan instigated Shabbu to kill Shah Alam. He thereupon, gave a full blow with Chhuri on his neck. Shah Alam fell down The respondents thereafter filed away. Shah Alam, who on account of the injuries sustained was In a precarious condition, was taken on a rickshaw to the Hospital. He died on reaching there. Naeema Parveen during the incident had used a Chhoori' meant for cutting vegetables in self defence of her mother when Chand Khan was about to injure her, 3. Karamat Ali, in the hospital, dictated the first information report Ex, Ka 1 to Asmat Ali Khan PW-9 and asked him to take it to the police station Ganj and lodge it there. The check report Ex. Ka. 9 shows that it had been taken down by the Head Constable Shahan Shah Wali Khan PW-8 at 1105 P.M. on 26-5-77 and a case was registered against the respondents under sections 147, 148, 452, 324 and 302 IPC Shahan Shah Wali Khan, when examined, proved that Chand Khan respondent on being arrested by Bharat Singh S. I. PW-10, had been brought to the police station Ganj at 11.05 P. M. and as there were injuries on his person, he along with the letter Ex. Ka. Ka. 7 had been sent for medical examination. 4. Dr. S. P. Pandey. PW-3 who stated to have examined Naeema Parveen, Irshad Khan, Laber Khan, Raees Begum and Qaiser Khan, proved his medical reports about them. They are as follows :- 1. Medical report of Naeema Parveen examined at 11 P. M. on 26-3-77 marked Ex. Ka. 2. 1. Incised wound 5 cm x 1/2 cm x muscle deep on the left cheek below the left eye. 2. Incised wound 1/2 cm. x 1/4 cm. x muscle deep on the left cheek starting from near the middle of injury no. 1 and downwards and backwards. Both the injuries were fresh and had been caused by sharp edged weapon and had been kept under observation. 2. Medical report of Baber Khan examined at 12.10 A.M. on 27-5-77 marked Ex. Ka. 3. 1. Abraded contusion 4 cm. x 1 cm on the outer aspect of the right forearm, lower part. The duration fresh. Advised X-ray. The injuries caused by blunt object kept under observation. 3. Medical report of Raees Begum examined at 12.20 A.M. on 27-5-77 marked Ex. Ka. 4. 1. Abraded contusion 7 cm, x 5 cm. on the front of left thigh, 10 cm. above the left knee joint. 2. Complained of pain in the chest. But no external mark of injury seen. Injury caused by blunt object was fresh and simple in nature. 4. Medical report of Kaisar Khan examined at 12.40 A.M. on 27-5-77. 1. Contusion 2 cm. x 1 cm. on the front of the left ring finger, duration fresh. Injuries caused by blunt object, advised X-ray. 5. Medical report of Irshad Khan examined on 27-5-77 at 12 A. M. 1. Abraded contusion 1 cm. x 1 cm. on the back of the right forearm, 9 cm., above the wrist joint, duration fresh injury simple caused by blunt object. The respondent Chand Khan had also been examined by Dr. S. P. Pandey at 11.10 P. M. on 26-5-77 soon after he had been brought by the constable Ram Pal Singh at the instance of the Police station Ganj. He had the following injuries on his person : 1. Incised wound 2 cm. x 1/4 cm. x depth not probed on the left side of the back 13 cm, below the scapula. Kept under observation. Advised X-ray. 2. Incised wound 1 1/2 cm. He had the following injuries on his person : 1. Incised wound 2 cm. x 1/4 cm. x depth not probed on the left side of the back 13 cm, below the scapula. Kept under observation. Advised X-ray. 2. Incised wound 1 1/2 cm. x 05 cm x depth not probed on the right side of back, 17 cm. below the scapula. Injury kept under observation. Advised X-ray. 3. Incised wound 1 cm. x 1/4 cm. x skin deep on the left side of the head 11 cm. above the left ear. Injuries nos.1 and 2 had been directed to be kept under observation. X-ray was advised regarding them. Injury no. 3 had been found simple in nature. All the injuries were pointed to have been caused by sharp edged weapon and duration was pointed to be fresh. 5. Fahim Khan who had been assaulted on 26-5-77 during the day too had been examined by Dr. S. P. Pandey at 1.15 A. M. on 27-5-77 after Kaiser Khan. He was shown to be having the following injuries. 1. Stabbed linear abrasion 4:5 cm. long on the front of right forearm, lower part. 2. Stabbed linear abrasion 1/2 cm. long on the palmer surface of first phalanx of right thumb. Duration of the injuries which were pointed to be simple and caused by some pointed object had been opined to be half a day. The medical report of FAHIM Khan is Ex. Ka. 8. 6. The autopsy on the body of the Shah Alam deceased was performed at 1.30 P.M. on 27-5-77. He was found to have been inflicted the following ante-mortem injuries. 1. Incised punctured wound 5 cm. x 3 cm. x chest cavity deep on the base of left side neck, 5 cm. from the left sterno clavicular joint. Direction downwards. 2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows 3. Abrasion 3 cm. x 2 cm. on right side forehead 3 cm, lateral to injury no. 1. 4. Abrasion 2 cm. x 1 cm. on the left side scapular region back. 5. Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula. 6. Incised punctured wound 3 cm. x 1 cm. chest cavity deep on left side back 4 cm. below injury no. 5. 1. 4. Abrasion 2 cm. x 1 cm. on the left side scapular region back. 5. Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula. 6. Incised punctured wound 3 cm. x 1 cm. chest cavity deep on left side back 4 cm. below injury no. 5. Internal examinations indicated that the sixth rib had been cut under the injury no. 6. The pleura had been cut beneath the injuries nos.1 and 6 and fluid blood about two point was found present in the left chest cavity, The left lung was cut through and through, upper lobe cut both under the injury not 1 and the injury no. 6. The pericardium was cut by the injury no. 1. The right side of the heart had been cut by the injury no. 1 Dr. O, N. Gupta who had done the post mortem examinations opined that death had been caused due to shock and haemorrhage as a result of injuries to the internal vital organs. The Investigating Officer V. P. Singh, Station House Officer Police Station Ganj pointed that on reaching the place of occurrence at half past twelve he found S. I. Bharat Singh PW 10 in whose presence the report had been lodged and who had arrested Chand Khan as pointed above already present there and he took up the investigation from him. He instructed constable Deep Chand to guard the place of incident and directed Ram Pratap Sub-Inspector to arrest the accused. He himself arrested Sajjan accused about 12.45 A.M. in the night near the gate of the district jail Rampur and sent him to the police station Ganj in the custody of the two constables who were also accompanying him and proceeded to the district hospital where he interrogated the informant Karamat Ali Khan, the injured Baber Khan, Irshad Khan, Kaiser Khan, Km. Naeema Parveen, and Smt.Raees Begum and also the wife of the informant named Amir Jahan. He next interrogated the witnesses Arif Khan and Rahat Khan and thereafter inspected the place of occurrence and prepared the site plan marked Ext. Ka 36. He has indicated therein the place 'D' in front of the gate of the informant's house where he found blood on the ground and took sample thereof and also plain earth near by. He next interrogated the witnesses Arif Khan and Rahat Khan and thereafter inspected the place of occurrence and prepared the site plan marked Ext. Ka 36. He has indicated therein the place 'D' in front of the gate of the informant's house where he found blood on the ground and took sample thereof and also plain earth near by. He further claimed to have initiated proceedings u/Sec.82 and 83 CrPC against the acrused who would not be arrested. Accused Bulley Khan, Shabbir Khan and Mahboob Khan after being taken into custody were examined by him on 1-6-77 and Salim Khan Sharif Khan Ishtiaq Khan and Shabboo Khan on 6-6-77. He stated to have completed investigations and submitted charge-sheet against the respondents on 6-6-77. 7. The prosecution to bring home the guilt of the accused to them had examined the informant Karamat Ali Khan PW 1, the two amongst the injured named Kaiser Khan PW 2 and Km. Naeema Parveen PW 5 and Mardan alias Kalian Miyan PW 4 who at the time of the incident pointed to have been at the house of Manju Miyan. The prosecution's injured witness Kaiser deposed that he was sitting out side the hut of Shah Alam deceased in the open space about 9 P.M. along with Babar Khan, Irshad Khan and Shah Alam when the - nine accused persons who are the respondents in this case arrived. Chand Khan, Shabbu and Sajjan had Chhuri (weapon with sharp edges on both the sides) Mahboob and Ishtiaq had Chakoo (weapon with sharp edge on one side) and Bulley, Shabbir, Sharif and Salim had 'dandas'. They on their arrival started assaulting them. When they raised alarm Karamat Khan came from inside the house alongwith the ladies who started cursing the accused. The witnesses of the Mohallah named Rahat Khan, Kalian Miyan, Sardar Dulah Khan, Sadat Khan and Afsar Khan also arrived. The accused Chand Khan gave two knife blows to Shah Alam and when the ladies of his house began hurling abuses, Chand Khan rushed towards them along with the other accused and assaulted them inside the house. As they came out, Shabbir exhorted Shabbu that Shah Alam who was alive be killed.Shabbu forcefully assaulted Shah Alam with 'Chhuri' on his neck and as a result thereof he fell down The accused believing that he was dead fled away. As they came out, Shabbir exhorted Shabbu that Shah Alam who was alive be killed.Shabbu forcefully assaulted Shah Alam with 'Chhuri' on his neck and as a result thereof he fell down The accused believing that he was dead fled away. He, Babar Khan, Shah Alam, Irshad Khan, Naeema Parveen and Raees Begum sustained injuries Karamat Ali Khan sent for rikshaws and all the injured were taken to the hospital It was discovered there that Shah Alam had died. In the cross-examination he pointed that the cot whereon he and the other male injured persons were sitting at the time of the incident was at a distance of five to six steps, slightly towards left, from the main door and in front of the hut. The electric pole whereon a bulb was lighted at the time of the incident was pointed to be at a distances of twelve to fourteen steps from the main door of Karamat. He, himself stated to have sustained two blows. He denied that he was admitted in the hospital but pointed that he remained in the hospital during the night and went back to his house next day in the morning about 7 or 8 A.M. He claimed to have been moving round the cot while being assaulted by the appellants. Karamat Ali, he pointed could not be assaulted as he was a little away, when the accused came out of the house, Karamat had come near the injured male persons. Shabbu from amongst the accused alone was pointed to have inflicted injury on Shah Alam at the instigation of Shabbir. Shah Alam, he was of the view could not run away as he had already been injured. He denied the suggestion that when Chand had gone to the house of Rafiqudullah Khan to call him, Shah Alam and he had assaulted him with knife with Babar Khan and Irshad assisting them and as he raised alarm Shabbu, Salim and Sharif had intervened to defend him and that the ladies of the house of Karamat had accidentally sustained injuries when they came there at the time of the incident. He reiterated that without giving any time the accused before entering the house of Karim Khan had assaulted the male injured for one minute or so, that inside the house of Karamat Ali, they had done the 'marpit' for half a minute and that after coming out merely Shabbu had given a blow with knife to Shah Alam. He expressed ignorance about Shabbu having pointed the house of Karamat to the Sub-Inspector who had come to investigate a case against his son Balam who had abducted a girl from Delhi. 8. KM. Naeema Parveen PW 5 deposed that when they heard the cries she, her mother and her aunt came out following her father. In the electric light she saw that the accused were assaulting Shah Alam, Irshad Khan, Babar Khan and Kaisher Khan. Chand Khan gave two 'Chhuri' injuries to his brother Shah Alam. Bulley Khan, Sharif Khan, Saleem Khan and Shabbir Khan assaulted Babar Khan Shah Alam Khan, Irshad Khan and Kaiser Khan with their dandas. When she, her mother and her aunt caried aloud and started cursing the accused, Chand lept towards them. They, went inside the house There, Ishtiaq gave two Chhuri cuts on her face and Sharif hit Raees Begum with danda. As Chand tried to injure her mother, she inflicted injury on him with the vegetable cutting knife. The accused due to the alarm being raised by the witnesses came out of the house. It was at that time that Shabbir Khan exhorted Shabbu to kill Shah Alam. Shabbu thereupon inflicted a heavy Chhuri blow to Shah Alam on his neck. On account of it, he fell down. The accused feeling that he was dead, fled away. The injured were taken to the hospital. Shah Alam on reaching there died. In the cross examination, she pointed that the accused were assaulting at a distance of six to seven steps from the door. She reached the door on hearing the cries of the injured. The witnesses then were standing at a distance of 2 to 3 steps to her right. She did not notice where her father Karamat Khan was standing at that time. She went inside when the accused chased her. She admitted that she had not told the Investigating Officer that the accused rushed towards her when she started cursing and abusing them. She did not notice where her father Karamat Khan was standing at that time. She went inside when the accused chased her. She admitted that she had not told the Investigating Officer that the accused rushed towards her when she started cursing and abusing them. She explained that she did not tell him about it as he had not enquired in that regard. The accused Ishtiaq alone was stated to have assaulted her. The other accused were only pointed to have instigated him Chand according to her could not cause an injury to her mother as she picked up the vegetable knife from the palang and assaulted him. She. gave out that she had assaulted him thrice but she had no vivid recollections. She first said that her knife did not get smeared with blood but later pointed that she had no recollections thereof. She denied to have given it to the Investigating Officer. Shah Alam, she stated, remained at the place where he had earlier been assaulted.The other injured were also pointed to be there. It was suggested to her that she had not been beaten inside the house.She denied the suggestion and reiterated that she did not receive the injuries accidentally but had been voluntarily hurt. She also refuted that Shah Alam, Babar Khan, Irshad Khan and Kaiser Khan had first assaulted Shah Alam and thereafter two of the accused saved him from them. She did not admit that Shabbu had ever misbehaved with her or that he had accompanied the S.I who had come to search her father's house, in the case against his brother who was alleged to have adducted a girl. The informant Karamat Ali deposed about the earlier incident also wherein Chand Khan, Shabbu and Ishtiaq had beaten Fahim when he did not allow Aslam to be taken by them. As regards the incident in question, he had given statement similar to those of Kaiser PW 2 and Naeema Parveen PW 5 and pointed that Chand Khan had given two 'Chhuri' blows to Shah Alam and when the ladies of his house started resenting it and began abusing them Chand lept at them and he and the other accused assaulted the ladies inside the house. He also deposed that when the accused came out of the house Shabbu inflicted the Chhuri injury with great force on Shah Alam. He also deposed that when the accused came out of the house Shabbu inflicted the Chhuri injury with great force on Shah Alam. He pointed to have dictated the first information report to Ashamat Ali Khan and asked him to lodge the same. In his cross-examination. he reaffirmed about the joint 'Karchobi' business of Shah Alam and Fahim and pointed that they were doing it at two places with the one under the close supervision of Fahim and the other of Shah Alam. He pointed to have given details about the incident inside the house on the information provided to him by her daughter Naeema Parveen. He explained that he did not recieve the injuries as he was standing at some distance from the accused taking precaution to save himself. He deposed that there was no enmity at all between the accused and his son prior to the incident wherein Fahim had been assaulted. The accused on their arrival had first assaulted for a minute around the cot. When the accused entered his house, he pointed to have come near Shah Alam. On coming out, Shabbu alone had inflicted injuries to Shah Alam but expressed inability to say in what direction Shah Alam had his face at the time when he was assaulted by Shabbu. He deposed that Shabbu was working in the workshop of Bachhan Khan and that Salim Khan was a truck clearner. He on being questioned in that regard pointed that Shah Alam was already bleeding when Shabbu had assaulted him although till then he had not fallen on the ground. To Karamat Ali Khan PW 1, it had not been suggested that Shah Alam, Irshad Khan, Babar Khan, Kaisar Khan, Raees Begum and Naeema Parveen had sustained injuries when there was the exercise of the right of private defence to save Chand Khan. 9. Mardan Miyan alias Kalian Miyan PW 4 fully corroborated the testimony of Karamat PW 1, Kaiser PW 2 and Naeema Parveen PW 5 He too had stated about the two injuries which Chand Khan had inflicted on Shah Alam with Chhuri and also the injuries which Sharif Khan, Shabbir Khan and Salim Khan had inflicted with danda. He did not state about Bulley Khan having inflicted any injury. He also had deposed about the hard Chhury Injuri which Shabbu had inflicted on Shah Alam. He did not state about Bulley Khan having inflicted any injury. He also had deposed about the hard Chhury Injuri which Shabbu had inflicted on Shah Alam. In his cross- examination he pointed that he had not told about the day incident in which Fahim Khan was injured to the Investigating Officer as he had not make any enquiry about it. He admitted to be living at a distance of 350 to 500 steps from the house of the informant but pointed that at the time of the incident he was at the house of Manju Khan who was his relative to take a small loan from him. He could not explain as to why the Investigating Officer had not recorded about this fact in his statement under section 161 CrPC. 10. The accused respondent Chand Khan who gave out his age to be eighteen years but was noted by the trial judge to be twenty five years old in appearance in his statement admitted that Aslam Khan PW 7 first used to work at his 'adda' but Fahim weaned him away from him to his workshop and he started working for him. He, Ishtiaq and Shabbu had gone to Fahim Khan at 1 P.M. during the day and asked him to make over Aslam to him. Fahim Khan misbehaved with them very much and thereupon he had assaulted him but not with Chakoo or Chhuri. So far as the incident in question is concerned, he pointed that there was a festivity at the house of his cousin brothers Sajjan Khan and Mahboob Khan accused. He had gone to bring Rafiqullah Khan to join it about 9 P.M. As be called him by name, Shah Alam Khan and Kaiser Khan with Chhuri and Babar Khan and Irshad Khan empty handed came near him. They dragged and assaulted him. He carried aloud. THEreupon Shabbu, Sharif and Salim who were taking in between themselves in the lane arrived. Shah Alam and others tried to assault Shabbu and others, They as such, in their defence assaulted them: The ladies of the house of Shah Alam who had come out also sustained minor injuries. The accused respondent Sharif Khan, aged 22 years gave out that about 9 P.M. Shabbu Khan, Salim and he were talking in the lane. They heard the cries of Chand Khan from near by the place. The accused respondent Sharif Khan, aged 22 years gave out that about 9 P.M. Shabbu Khan, Salim and he were talking in the lane. They heard the cries of Chand Khan from near by the place. Shah Alam Khan and Kaisar Khan were armed with knife and Babar and Irshad Khan were empty handed. They were assaulting Chand Khan. They tried to assault him. He and Salim were having rules and Shabbu had a knife. They in defence assaulted them. The ladies of the house of Karamat came forward and they sustained minor injuries. 11. Shabbir Khan aged 80 denied his complicity in the crime. He merely stated that there was a quarrel between his sons Sharif Khan and Chand Khan and the others and that at the time of the incident he had gone to the house of Sajjan Khan and Mahboob Khan accused. 12. Salim Khan respondent aged 23 years pointed that he had been falsely implicated as Karamat Khan had been punished for cow-slaughter on the information provided by him to the police. Mahboob Khan accused respondent pointed that he had been falsely roped in this case as he was related to Chand Khan and Sharif Khan. 13. Sajjan Khan stated that he had also been roped in this case because Chand Khan was his cousin brother. 14. Bulley Khan accused respondent aged 75 years pointed that he had been falsely roped in the case as Chand Khan was his nephew. Ishtiaq Ahmad accused respondent aged 22 years pointed that he had been falsely involved in this case as during the day incident he had accopanied Chand Khan who was his relative. 15. Shabbu accused respondent who had given out his age to be nineteen years pointed that Shah Alam deceased and Fahim were cousins. Fahim had his workshop on the roof of Jama Khan and Shah Alam had his workshop in the 'baithak' of Allah Rakhe. The prosecution witness Aslam first used to work for Chand Khan and thereafter went to work at the workshop of Fahim. On hearing the cries during the day, he had gone on the roof of Mohd. Jama Khan. He saw the quarrel going on. He intervened. They thereafter, went away. Chand had then stated "Main Faheem se nipat loonga" "Tu Sale Beech Men Kyon Aya Hai". At the time of the incident he was at the house of Sajjan Khan. On hearing the cries during the day, he had gone on the roof of Mohd. Jama Khan. He saw the quarrel going on. He intervened. They thereafter, went away. Chand had then stated "Main Faheem se nipat loonga" "Tu Sale Beech Men Kyon Aya Hai". At the time of the incident he was at the house of Sajjan Khan. He thereafter went to bring his sister from Moradabad. On his return, he learnt that there was a quarrel which had ended in murder. He had been falsely roped in this case, as he had provided information to the police about the elder brother of Shah Alam named Balam having adducted a girl. 16. The Add1. Sessions Judge in his judgment had observed that the accused Chand Khan could have no ill-will and his anger on account of Aslam having left his workshop was likely to have cooled down. He has further observed that there was nothing to show that the accused had come to k ow about the lodging of the first information report. He has concluded his discussion on the question of motive by the observation that the prosecution had utterly failed to prove any strong or tenable motive for the commission of the crime by the accused. With regard to the manner of assault, he found the statements of Karamat Ali Khan PW 1, Kaiser Khan PW 2, Kumari Naeema Parveen PW 5 and Mardan Miyan alias Kalian Miyan to be conflicting. He has pointed that according to Karamat Ali the cot around which the marpeet took place was at a distance of two to three steps from the main door of his house whereas according to Kumari Naeema Parveen and Kaiser Khan, it was at a distance,of six to seven steps and according to Mardan Miyan alias Kalian Miyan it was at a distance of seven or eight steps. He further has referred to the statements of Karamat Ali Khan, Kaiser Khan and Kumari Naeema Parveen given in the examination-in-chief that all the accused persons had assaulted Shah Alam, Kaiser Khan Babar Khan and Irshad Khan whereas Mardan Mivan had pointed that Chand Khan accused had inflicted two blows with Chhuri on Shah Alam and that Sharif Khan, Shabbir Khan and Salim Khan had beaten Kaiser Khan, Baber Khan. Irshad Khan and Shah Alam with dandas and that the remaining five accused initially were merely brandishing their Chhuries and knives and dandas to threaten the women of the complainant's house. He had found Kaiser Khan to have improved upon his statement under section 161, CrPC which as pointed by him was in keeping with the statement of Mardan Miyan. He has rejected the prosecution story for the reason that though only some of the accused had participated, the complainant and the witnesses had implicated as many as nine persons in the crime in question. Karamat Ali Khan in his opinion could not be held to have witnessed the crime in question for he had not sustained any injury and Mardan Mivan was a doubtful witness for he lived far away from the place of incident and was not likely to be present at the time of the incident. Then he thought that when the accused were in a position to pick out Shah Alam from amongst the others, they had no reason to cause injury to Irshad, the father of Fahim Khan, Baber the brother of Shah Alam and Kaiser, a tenant of the complainant. He has doubted that Kumari Naeema Parveen could have inflicted injury on Chand Khan accused with a blunt vegetable cutting knife more so when the same had not been produced and Kumari Naeema Parveen could not give a clear statement that it had been stained with blood. He found nothing to doubt the defence case that injuries on the side of the prosecution had been sustained when Chand Khan was being defended by Sharif Khan, Salim Khan and Shabbu and there was a threat to all the four from Shah Alam deceased, Kaiser Khan, Irshad Khan and Baber Khan. He felt it to be highly improbable that the knife blow by Shabbu would have been left to be given at the time of the departure of the accused. 17. We have given our anxious consideration to the evidence on record. This being an appeal against acquittal, we are conscious of the legal position that the findings of fact of the trial court are not to be disturbed, just because different conclusions seem to be more convincing. 17. We have given our anxious consideration to the evidence on record. This being an appeal against acquittal, we are conscious of the legal position that the findings of fact of the trial court are not to be disturbed, just because different conclusions seem to be more convincing. WE do subscribe to this settled law that the conclusions of the trial court are to be interfered only when they cannot be derived from the evidence on record and the judgment of the trial court is perverse. WE, therefore, are proceeding to deal with each of the reasons which prompted the trial court to record acquittal or could be raised by the accused in support of it. In that connection, we shall first discuss whether there was adequacy of motive or not and whether all or at least some of the accused had motive to participate in the incident in question which had resulted in the murder of Shah Alam. It is an admitted fact that Aslam was employed in the workshop of Fahim a 'Mausera Bhai' of Shah Alam deceased. He earlier had been serving in the workshop of Chand Khan who wanted him back. On the date of the incident, the accused Chand Khan, Shabbu and Ishtiaq had gone to the workshop of Fahim to take away Aslam and when Fahim did not permit it, he was assaulted and he sustained injuries noted in Ex. Ka 8. He also proved the report bearing no. 114 dated 25-5-77 recorded at 2.15 PM WE have earlier referred to the statement of Shabbu that Chand Khan had called him bad names for having intervened and quietened them. He had also given out that he had declared bis intentions to set him aright. The prosecution witnesses Karamat Ali Khan PW 1, Fahim Khan PW 6 and Aslam PW 7 had stated about the joint business of Chand Khan and Fahim Khan. There is no reason to doubt their statements. Karamat Khan has explained as to why there were two 'addas'. The prosecution witnesses Karamat Ali Khan PW 1, Fahim Khan PW 6 and Aslam PW 7 had stated about the joint business of Chand Khan and Fahim Khan. There is no reason to doubt their statements. Karamat Khan has explained as to why there were two 'addas'. The child witness Aslam had not been cross-examined with regard to the statement about there being one business of Shah Alam and Fahim The fact that Shah Alam and Fahim were close to each other receives support from this circumstance also that at the time of the incident Irshad Khan, father of Fahim Khan was also sitting on the cot on which Chand Khan, his brother Baber Khan and Kaiser Khan were sitting. There is no improbability at all in Chand Khan going with his men to teach Shah Alam a lesson for employing Aslam, Ali the prosecution witnesses stated that the accused soon after their arrival started assaulting Shah Alam, Irshad Khan, Baber Khan, and Kaiser Khan. The medical report of Baber Khan, Irshad Khan and Kaiser Khan indicate that each of them had sustained one injury by a 'danda.' and that the finger of Kaiser Khan had got fractured. The post mortem report of Shah Alam shows that he had sustained three 'danda' injuries of which two were on the forehead. It is likely that Shah Alam on being assaulted along with Irshad, Baber and Kaiser with danda severely resented it and thereupon Chand Khan gave him two knife blows one on the scapular region and the other on the back with such force that it cut the sixth rib and the lobe of the left lung and also the pleura. The injury having been inflicted with so much force as to cut the above vital parts, it could be inferred by his conduct that he had the intention to cause the murder which may have developed only at the spot and which on the facts of the case could only be said to have been shared by Shabbu, alone and none of the other accused for though they were in a position to cause more serious injuries they had not done so. The observation of the Additional Sessions Judge that the accused were likely to pick out Shah Alam and to assault him alone if Shah Alam, Irshad Khan, Baber Khan and Kaiser Khan had been found sitting on the cot is misconceived and devoid of sense for Baber Khan the brother of Shah Alam and Kaiser Khan and Irshad Khan who were his close relatives could not have been silent spectators. It is for this rea on that they had all sustained injuries around the cot. The prosecution evidence shows that when the ladies started abusing and cursing, they had been chased inside the house and assaulted. It is most natural and the conclusion arrived at by the Additional Sessions Judge that they accidentally sustained injuries is nothing but perverse. Kumari Naeema Parveen had sustained two injuries on her cheek. These, injuries were 5 cm. and 6 cm. long. Raees Begum had received injury measuring 7 cm. x 5 cm. on her left thigh, 10 cm. above the left knee joint. Dr. S. P. Pandey who had examined her within three and a quarter hours after the incident has noted that she had complained to him of the pain in the chest also. The injury in the front part of her thigh and over her chest as pointed by Raees Begum and the injury over the left cheek of Kumari Naeema Parveen could only be inferred to have been caused by persons without morals or else they would not have been on those parts of the body. The Additional Sessions Judge if he thought them to be accidental should have indicated as to how they were caused So far as the injury inflicted by Shabbu on Shah Alam is concerned, it also appears to have been the last injury inflicted and the observation of the Additional Sessions Judge to the contrary does not seem to be correct. If this injury would have been caused earlier, the accused were not likely to have rem lined at the house and chased the ladies to give them a beating inside the house Kumari Naeema Parveen, Raeesa Begum and Amir Jahan were said to be at the gale when Irshad Khan, Shah Alam, Baber Khan and Kaiser Khan were being beaten. If this injury would have been caused earlier, the accused were not likely to have rem lined at the house and chased the ladies to give them a beating inside the house Kumari Naeema Parveen, Raeesa Begum and Amir Jahan were said to be at the gale when Irshad Khan, Shah Alam, Baber Khan and Kaiser Khan were being beaten. With so many males being beaten just at a few steps, they were not likely to further move out as it would have served no purpose. There is no improbability in some of the accused following them inside the house because of their depravity. Naeema Parveen stated that she had picked up the vegetable knife and struck Chand Khan when he attempted to assault her mother. Two of the injuries of Chand Khan were on the back and one was just skin deep on the left side of the head. The length of these injuries had been between 1 cm. and 2 cm. and their width was between 5 cm. and .25 cm. They to us seem to have been caused by vegetable cutting knife or else they would have been longer. If Chand Khan had been rushing to assault the mother of Kumari Naeema Parveen he was likely to have received the injuries on his back at her hand. It would not at all be justified to infer that any of the injuries of Chand Khan was grave They seem to have been superficial. Simply because the doctor had advised X-ray, it would not be justified to hold that they had not been caused by vegetable knife. The back-ground and sequence of injuries inflicted on Shah Alam, Irshad Khan. Baber Khan, Kaiser Khan, Raees Begum and Kumari Naeema Parveen have been very satisfactorily established by the prosecution. The defence version to the contrary as would follow from subsequent discussion also is only a cooked one and cannot be accepted at all. 18. Coming now to the place and manner of assault, the prosecution witnesses consistently deposed that it had taken place in front of the main door of the house of Karamat PW 1 towards north and the south of the hut shown in the site plan Ext. Ka. 18. Coming now to the place and manner of assault, the prosecution witnesses consistently deposed that it had taken place in front of the main door of the house of Karamat PW 1 towards north and the south of the hut shown in the site plan Ext. Ka. 36, This being a convenient open place, Shah Alam, Babar Khan, Irshad Khan and Kaisar Khan were most likely to be sitting there particularly as it was the last week of May. Since all these persons sustained injuries, they seem to have been assaulted simultaneously when they were unprepared. They could not be aggressors as on the side of the accused respondents merely Shah Alam had been inflicted three minor injuries (pointed to have been caused by Km. Naeem Parveen) to which there is reference in the FIR also as he alone on the side of the accused had been injured and none of the three Shabhu, Sharif and Salim had sustained even a scratch and there were many more and much serious injuries on the side of the complainant.In fact there had been quick shower of dandas by Sharif and Salim and assault by Chand Khan with Chhuri on Shah Alam thereafter when he resented the beating more vocally than others. Shah Alam as is apparent from the post-mortem report had sustained two of the three abrasions on the forehead and also another incised injury caused by Chand Khan. These injuries were likely to have sufficiently incapacited him and as such Chand Khan was free to give him a very severe blow. The prosecution witnesses have all consistently deposed that outside the house merely Chand Khan and Shabbu had made use of the Chhuri and Km. Naeema Parveen pointed that inside the house Ishtiaq had inflicted the injuries on her with knife.There is nothing to indicate that Km. Naeem Parveen could make a mistake in respect of Ishtiaq when the injuries were inflicted by him on her cheek We are also unable to hold that Naeema, a lady of Rampur about twenty years of age could not have used Chhuri against Chand Khan.There can be no doubt that Kaisar Khan had been present at the time of the occurrence.The accused also have not denied the same. He is an injured witness and there is no reason why the account given by him about the place of assault should not be believed when the I. O. had also found blood lying there. When Irshad, Shah Alam Babar Khan and Kaiser who all had sustained injuries were sitting on the cot prior to being assaulted, it is also natural that they would have been inflicted injuries while they were on or around the cot. We find hardly any discrepancy in the statements of the prosecution witnesses regarding the place where the cot was lying before the arrival of the accused and the fact that it was not found there when the I. O came to the place of incident will not make any difference. If the defence version would have been correct the I. O. would not have found blood near the main door of the complainant's house. It is further inconsistent with the admitted fact that two ladies of the house of the complainant had also been injured. Chand Khan gave out that he had come to call Rafikuddaulla from the neighbouring house and on hearing his voice Shah Alam and Kaiser Khan who were armed with Chhuri began to assault him with the help of Babar Khan and Irshad Khan although they were empty handed Shabbu Sharif and Salim were pointed to have come to his assistance and when they tried to assault them also, they were alleged to have exercised the right of private defence. We have pointed above that Shabbu and Salim did not state that they had exercised the right of private defence either for themselves or for Chand Khan and Sharif Khan. The defence version of Chand Khan and Sharif Khan about Chand Khan having been assaulted when he had gone to call Rafikudaula looks absurd for if the facts would have been so, as many persons would not have sustained injuries on the side of the complainant and Shah Alam would not have received the two injuries dealt with in the post-mortem report, each of which was sufficient to cause his death. During the day Chand Khan pointed to have slapped Fahim Khan and not assaulted him with knife although Dr. S. P. Pandey has in the medical report Ext. Ka. During the day Chand Khan pointed to have slapped Fahim Khan and not assaulted him with knife although Dr. S. P. Pandey has in the medical report Ext. Ka. 8 noted that Fahim Khan was injured by a pointed object Chand Khan did not state as to who on his side had been armed with Chhuri and Chaku and who with danda. Sarif Khan accused stated that at the time of the incident, he and Salim had been carrying rule and Shabbu had a knife and that they had exercised the right of private defence when Shah Alam and Kaiser Khan assaulted with knife. The plea of the right of self defence as up held by the Addl. Sessions Judge could not be said to be conceivable when Salim Khan did not state about it and the accused Shabbu too pointed that he was not present and did not assert it. Further there was no reason for the accused to go to the house of Shah Alam except to assault him. Karamat Khan PW 1 vaguely stated that Shabbu was seventeen to eighteen years of age but when he himself stated that he was nineteen years of age he could not be presumed to have been a child. The statement of the prosecution witnesses that Shabbu at the time of the incident was armed with knife receives support from the statement of the accused Sharif Khan although Shabbu himself denied it. Chand Khan being the main person was likely to be armed with knife when in the earlier incident during the day he had made use of a pointed weapon against Fahim and in the evening he had come to punish Shah Alam at his house where he could visualise a resistence. The complainant pointed that all the nine respondents were there to assault but Shabbir Khan being 80 years of age and Bulley Khan being 75 years of age as noted by the Addl. Sessions Judge and they having not admittedly assaulted cannot with assurance be said to have been involved in the crime in question more so when it is not the prosecution case that the accused had come to convince Shah Alam and Fahim Khan and their family members that they should not retain Aslam but to teach him a lesson with Chhuri and danda. Further none of the prosecution witnesses stated that Sajjan Khan had inflicted any injury with Chhuri or Mahboob Khan had inflicted any injury with knife. As a measure of caution particularly when this is an appeal against acquittal, we are inclined to bold that Sajjan Khan and Mahboob Khan also could not safely be held to have participated in the crime in question. We have already observed above, that there was no common object to kill Shah Alam and the common object merely extended to the causing of injuries by Chhuri, Chakoo and Danda. The accused Ishtiaq Sharif Khan and Salim are therefore, guilty u/Secs.325/ 324/323/452 read with section 149 IPC. Now so far as Chand Khan and Shabbu are concerned, Chand Khan had caused the injury no. 6 of the post-mortem report to Shah Alam and Shabbu had . caused the injury no, 1 of the post mortem report to Shah Alam as consistently deposed to by the prosecution witnesses. These injuries are not shown to have been inflicted at unintended places. They further were sufficient in the ordinary course of nature to cause death. Chand Khan and Shabbu, therefore had committed the offence of murder under Clause 3 of section 300 of the Indian Penal Code. Since Shah Alam had been given two Chhuri blows by Chand Khan even after he had sustained injuries with danda and one of the injuries inflicted by him had cut his rib and lung and also his pleura, he could as well be safely held to have intended to cause his death and his offence was covered by clause (1) of section 300 IPC also. The same is the case with Shabbu for there can be no doubt that the injury which he had caused to Shah Alam was with a view to kill him for he had attacked the neck of Shah Alam with such force that his Chhuri had penetrated both the heart and lung of Shah Alam. 19. The accused Chand Khan, Shabbu Khan are each guilty under section 302 IPC. Besides Chand Khan, Shabbu and Ishtiaq are guilty under section 148 IPC and Sharif and Salim are guilty u/Sec. 147 IPC. ORDER The appeal is partly allowed. The order of acquittal in respect of Sajjan Khan, Mahboob Khan, Bulley Khan and Shabbir Khan are not interfered with. The accused Chand Khan, Shabbu Khan are each guilty under section 302 IPC. Besides Chand Khan, Shabbu and Ishtiaq are guilty under section 148 IPC and Sharif and Salim are guilty u/Sec. 147 IPC. ORDER The appeal is partly allowed. The order of acquittal in respect of Sajjan Khan, Mahboob Khan, Bulley Khan and Shabbir Khan are not interfered with. Tne order acquitting Chand Khan, Shabbu Khan, Ishtiaq, Sharif Khan and Salim Khan of all the charges is set aside. Ishtiaq Sharif Khan and Salim Khan are acquitted of the charge u/Sec.302 read with section 149 IPC. They are, however, convicted of the charges u/Secs.325/ 324/323/452 read with section 149 IPC. Ishtiaq is further convicted u/Sec.148 and Sharif Khan and Salim Khan u/Sec.147 IPC. They on each of the above counts are sentenced to imprisonment already under gone. So far as Chand Khan and Shabbu are concerned they both are convicted u/Sec.302 IPC and are being sentenced to imprisonment for life. They are also held guilty in respect of the remaining charges and are sentenced to imprisonment already under gone thereunder. Chand Khan and Shabbu Khan are on bail. They shall surrender to their bail bonds forthwith to serve out the sentence of imprisonment for life awarded to them u/Sec.302 IPC. The Chief Judicial Magistrate Rampur be asked to report compliance within a month. The accused Chand Khan and Shabbu Khan were not called upon to make submissions with regard to sentence as they had been awarded the lesser punishment u/Sec.302 IPC.