PALOK BASU, A. N. GUPTA, J. ( 1 ) THESE two connected Criminal Appeals arise out of the judgment dated 25/11/1978 passed by III. Addi. District and Sessions Judge, Allahabad in Sessions Trial No. 519 of 1976 whereby appellants Satyadeo, Ram Lochan, Dilip Kumar, Bansi Lal Pandey and Basudeo Pandey were convicted under Section 302/149 I. P. C and sentenced to imprisonment for life. The appellants Satyadeo, Ram Lochan and Dilip Kumar were convicted under Section -147 I. P. C. and sentenced to 12 months R. I. Appellants Basudeo and Banarasi Lal Pandey were convicted under Section - 148 I. P. C. and sentenced to 18 months R. I. All the sentences were directed to run concurrently. ( 2 ) AN incident is said to have happened at about 12 Noon on 22/9/1976 near about the paddy-field of Chandramal Surajmal, a little east to the village abadi in village Charwa lying within the police station Puramufti. An F. I. R. has been lodged at police-out post Charwa at 12. 45 P. M. by Sharda Prasad. It was alleged in the F. I. R. that Nohar Prasad, father of Sharda Prasad accompanied by the informant Ashwani Kumar, Hira Lal, Uma Shanker and Smt. Shanti Devi and a few others werereturning home after having taken some wood on his head. When he had reached the paddy field it was found that Basudeo Pandey started hurling abuses. This was objected to by the witnesses whereupon Basudeo Pandey abused them also. At this stage it is said that Satyadeo, Ram Lochan and Dilip Kumar exhorted others to kill Nohar Prasad. Basudeo appellant is said to have inflicted a Pharsa blow on the neck of Nohar Prasad who fell-down whereupon Banarasi Lal accused gave another Pharsa blow as a result of which Nohar Prasad died on the spot. P. W. 4 Mohd. Mastafa was the Head-Moharrir at police station Puramufti. He registered the case under Sections - 147/148/302/149 IPC. at serial No. 21 at 15. 15 P. M. in the general diary on 22/9/1976. He forwarded a special report at 4. 45 P. M. P. W. 5 S. I. Jagvir Singh was present at the police-station who took up the investigation at once and reached the place of occurrence at 4. 45. P. M. , After appointing Panches he prepared the inquest report Ext. Ka. 12. He forwarded a special report at 4. 45 P. M. P. W. 5 S. I. Jagvir Singh was present at the police-station who took up the investigation at once and reached the place of occurrence at 4. 45. P. M. , After appointing Panches he prepared the inquest report Ext. Ka. 12. He prepared the necessary documents and the challan of the dead body. He took into possession stained and plain earth of the occurrence and also found a bundle of wood near the dead-body. Thereafter investigation was entrusted to P. W. 8 Daya Ram Dwivedi. He recorded the statements of the eyewitnesses, prepared the site plan and ultimately submitted a charge-sheet against the appellants. ( 3 ) DURING the trial the appellants denied their participation and attributed false implication due to long standing enmity. Neither they produced any evidence nor any document. The prosecution has examined two eye-witnesses, P. W. 1 Sharda Prasad, informant, and P. W. 6 Ashwani Kumar Pandey who were allegedly accompanying the deceased. Placing implicit reliance upon the testimony of these two witnesses, the learned trial Judge has recorded the conviction and sentences noted above. Aggrieved against the said judgment the appellants have preferred these two appeals. ( 4 ) SRI Amar Saran, learned counsel for the appellants, and Sri Arvind Tripathi, learned A. G. A. for the State, have been heard at length and the entire record has been scrutinized. ( 5 ) THERE is ample evidence on the record suggesting that Basudeo appellant had direct motive for committing the crime. It has been stated and not denied by the witnesses even in cross- examination that Basudeos father had been liquidated sometime ago in which the informant Sharda Prasad along with several others was the accused. It, therefore, stands to reason to think that some mode of taking retaliatory measures may have been planned by the appellant Basudeo in order that he could take an identical revenge. ( 6 ) THE statement of P. W. 1 Sharda Prasad indicates that he was accompanying his father around 12 Noon and a little after them were the three eyewitnesses Uma Shankar, Hira Lal and Ashwani Kumar. ( 6 ) THE statement of P. W. 1 Sharda Prasad indicates that he was accompanying his father around 12 Noon and a little after them were the three eyewitnesses Uma Shankar, Hira Lal and Ashwani Kumar. It has been averred by these witnesses that after exhortation by Satyadeo, Ram Lochan and Dilip, Basudeo appellant gave a Pharsa blow on, the neck of Nohar Prasad as a result of which he fell down upon which the other appellant Banarasi Lal Pandey gave another Pharsa blow. ( 7 ) THIS takes us to the post mortem report. It may be stated here that Dr. Vijaipal, P. W. 3 has conducted the post mortem examination on the dead body of the deceased on 23/9/1976 at 2. 50 P. M. The following three injuries were found on the dead body:1. An incised wound 10 x 1-112 x 3-112 right side of neck spindle shaped. The breadth and depth taken in the middle. The anterior edge of the wound in 2 from chin. The posterior end extending 1 beyond mid line in left. The wound is 1 below left ear. In the front it has cut sub-mandiblar salivery gland. In the back it has cut 4th clevical vertebrae and spinal cord. The major blood vessels of right side of neck and muscles underneath the wound has been cut. The edges of the wound are sharp regular and contused. 2. An incised wound 11/2 x 1/2 x 1/4 top of left shoulder obliquely from behind to antero medially. The edges are sharp and regular. The doctor also found that the stomach contains 2 oz. brownish fluid, small bowel is empty, largebowel contains faecal matter. No other injury was noticed on the dead-body so as to indicate the use of any blunt weapon. ( 8 ) IT was strenuously argued by the learned counsel for the appellants, that injury No. 2 can and should not be attributed to specific and independent Pharsa blow allegedly attributed to Banarasi Lal Pandey. In this connection he drew the attention of the Court to the statement of the doctor wherein he was quite emphatic that this injury No. 2 may have been caused by outer comer of Pharsa. Injury No. 1 was caused with great force and after causing of injury No. 1, with some force the Pharsa was withdrawn causing injury No. 2. Injury No. 1 was caused with great force and after causing of injury No. 1, with some force the Pharsa was withdrawn causing injury No. 2. There appears to be some logic in the argument because measurement of injury No. 1 is 10 x 1-1/2 x 3-1/2 situated of the right side of the neck which was found spindle shaped. The measurement of injury No. 2 is, however, only 1 1/2 x 112 x 1/4 on the top of left shoulder. It cannot be ruled out that this may have been caused by outer end of the Pharsa. Under the circumstances while the injury No. 1 can safely be said to have been caused by blow of Pharsa caused by Basudeo Pandey it cannot be said definitely that injury No. 2 was caused by an independent Pharsa blow allegedly caused by Banarasi Lal Pandey. Coming to the roles of three other appellants Satyadeo, Ram Lochan and Dilip Kumar it may be said that according to the testimony of the two eye-witnesses they had only exhorted. In the very nature of the things exhortation is weak evidence. Assuming that these appellants were also present with lath is, it cannot be with necessary intent to participate and that they should have intended to join the appellant Basudeo Pandey when he may have planned to cause only one injury to the deceased so as to make life extinct in him. Under the circumstances neither Section-149 nor Section 34 IPC. can be applicable to the three appellants Satyadeo, Ram Lochan and Dilip Kumar alongwith Basudeo Pandey. Consequently, their participation in the offence under Section 302 IPC. read with Section 149 IPC is doubtful. Since they have not used Lathi their conviction under section 147,308 IPC is also doubtful. In view of the aforesaid discussion these appeals have partial success. The appeal of Satyadeo, Ram Lochan, Dilip Kumar and Banarasi Lal Pandey is allowed. Their conviction and sentences under Section-302/149 IPC. and 147/148 IPC. respectively and sentences of life imprisonment, 1-1/2 years and 1 year R. I. under the three Sections respectively are set aside. They are on bail. They need not surrender. Their bail bonds are cancelled. The appeal of Basudeo Pandey fails and is hereby dismissed. His conviction under Section 302/149 IPC. is altered to Section 302 IPC. simplicitor and he is accordingly convicted thereunder and sentenced to imprisonment for life. They are on bail. They need not surrender. Their bail bonds are cancelled. The appeal of Basudeo Pandey fails and is hereby dismissed. His conviction under Section 302/149 IPC. is altered to Section 302 IPC. simplicitor and he is accordingly convicted thereunder and sentenced to imprisonment for life. His conviction and sentence under Section 148 IPC is maintained. These two sentences will run concurrently. He is on bail. He will surrender to his bail bonds to serve out the sentences awarded to him. Appeal allowed. .