JUDGMENT G.D. Dube, J. - This appeal has been preferred against the judgment and order of Second Addl. Sessions Judge, Rampur, convicting appellant Zeenat and holding him guilty under Section 452 and 307, I.P.C. and directing him to suffer a sentence of five years under Section 307, I.P.C. and two years' R.I. under Section 452, I.P.C. The co-accused Hurmat, Hikmat and Balam were acquitted of the charges under the aforesaid sections, Aggrieved by this order, Zeenat has filed Criminal Appeal No. 359 of 1979. The State Government has also filed an appeal against the order of acquittal. Since both the appeals are arising from the same judgment and order, they are being disposed of by this judgment. 2. Qamaruddin (P.W. 1) had lodged a report at police station Gunj, district Rampur at 9.25 a.m. on 16.10.1977 in respect of an occurrence which took place same day at 7.30. a.m. in Mohalla Gujar Tola within the aforesaid police-station. it was alleged by the reporter that his cousin, is married with Zeenat appellant. During noon on 15.10.1977 Zeenat had abused the children who were flying kite on the roof of the houses. The house of Qmaruddin and Zeenat are adjacent. Zia Uddin, the elder brother of Qamaruddin, had asked Zeenat not to abuse as he is son-in-law of the family. There upon, Zeenat, had threatened that he will take revenge. At about 7.30 a.m., on the date of occurrence, Qamaruddin was sitting at his shop. Appellant Zeenat called his brothers Himmat, Balam and Hurmat from Mohalla Kotwalan. All these four persons entered the house of Qamaruddin Zeenat was armed with a knife. Hikmat, Balam and Hurmat had ballam, tabal and lathi respectively in their hands. These four persons started assaulting Zia Uddin with their weapons. On hearing alarm, the reporter Ikram Khan, Babbu and Zamen Khan came to the spot and intervened. Thereafter the accused ran away seating wall lying in between two houses. When the witnesses tried to have the victims, the assailants attempted blows, on the reporter, but the somehow saved himself; During the marpit Smt. Tara Begam and Smt. Shamshad ladies of the house received injuries. 3. After the occurrence, three injured were taken to the District Hospital and thereafter the reporter went to the police station and dictated his report to the head Moharir of the police station Gunj. 4. 3. After the occurrence, three injured were taken to the District Hospital and thereafter the reporter went to the police station and dictated his report to the head Moharir of the police station Gunj. 4. The injuries of Jiyaauddin were examined at 8 a.m. on 16.10.1977. The following injuries were found on his persons: 1. Incised punctured wound 2 cm x 1 cm x Abd. cavity omantum coming out of the wound. Injury crest. Injury kept under observation. Advised X-ray. 2. Two incised wounds 3 cm x 1 cm and 1 cm. x 1 cm apart each other, not probed. Left side chest 8 cms. below left nipple. Injury kept under observation. Advised X-ray. 3. Abrasion 2 cm. x cm. on the front of chest 2 cm. x below strenal joint. 4. Incised wound 7 cm. x 1 cm. above deep on the left side head 5 cm. above left eye brow. Kept under observation. Advised X-ray. 5. Incised wound 2 cms. x 1 cm. on outer aspect of left arm 12 cms. below shoulder joint. 6. Contusion 12 cms. x 6 ems. on the right back over scapular region. 7. Incised wound 3 ems. 1 cm. x not probed left side back just below left scapula, injury kept scapula. Injury kept under observation. 8. Incised wound 3 cms. x cm, on the top of left shoulder. P.W. 5. Dr. Naqvi stated before the trial court that injury Nos. 1, 2, 4, 5, 7 and 8 could be caused by a sharp edged weapon like knife or 'Tabal'. The injury Nos. 3 could be caused by friction and No. 6 by hard and blunt object like lathi. The doctor had also stated that the injury No. 1 could be caused by a 'Ballam'. According to him the injury Nos. 1, 2, 4 and 7 were on vital part. Injury Nos. 1 and 2 were also dangerous. However, this witness had admitted in cross-examination that as long as injury No. 2 was not proved by additional report, it -cannot be said that whether it was dangerous or not. He also admitted that injury No. 1 was not X-rayed and therefore, he could not say whether it as was dangerous or not. The doctor had also admitted that injury No. 6 could be also caused by brick-bats. 5. He also admitted that injury No. 1 was not X-rayed and therefore, he could not say whether it as was dangerous or not. The doctor had also admitted that injury No. 6 could be also caused by brick-bats. 5. Smt. Tare Begum was examined at 8.20 a.m. She had one incised wound on the left side head and another incised wound left side back and one linear abrasion on the right side back. Smt. Shamashade was examined at 9.45 a.m. She had one abraded contusion on the right side of upper lip and another lacerated wound on the inner aspect of the right side of upper lip. Dr. S.K.R. Naqvi who had examined the three injured had opined that incised wound could be caused by sharp edged weapon and abrasion by friction and lacerated and contused wound by hard and blunt object. The injuries of Smt. Shamshad and Tara Begum were found simple in nature. Injuries found on the abdominal region and chest of Jiyauddin were kept under observation. 6. The investigation of this case had been taken up by Aman Singh, P.W. 6. He was present in the police station at the time of lodging of report. He had interrogated Qamaruddin at the spot. Thereafter he went to the place of occurrence and collected blood stained earth and plain earth. He prepared the site plan and made other investigation. Thereafter he submitted the chargesheet against the three respondents in the Government appeal and the appellant in the criminal appeal. 7. In order to substantiate its allegation the prosecution examined P.W. 1 Qamaruddin, P.W. 2 Jiyauddin and P.W. Tara Begum as witnesses of fact. P.W.4 Shahanshah Ali was head Moharrir who had registered the case. The role of P.W.5 and 6 had already been stated above. Two witnesses Dr. A.K. Chadda and Gaya Prasad Deputy Collector was also examined as C.W. 1 and C.W. 2. They had stated that at 12.10 p.m. on 16th October, 1979 the statement of Jiyauddin recorded in the hospital. This statement is Ext. Ka-3. 8. The accused had pleaded not guilty to the charges. They alleged that they have been falsely implicated in the case due to enmity. The accused had not examined any witnesses in defence. 9. The learned Sessions Judge had come to the conclusion that the offence was established against Zeenat appellant only. This statement is Ext. Ka-3. 8. The accused had pleaded not guilty to the charges. They alleged that they have been falsely implicated in the case due to enmity. The accused had not examined any witnesses in defence. 9. The learned Sessions Judge had come to the conclusion that the offence was established against Zeenat appellant only. As regard the three respondents in the Government Appeal the learned Sessions Judge observed that they were entitled to the benefit of doubt. Zeenat All had stated in his statement under Section 313, of the Code of Criminal Procedure that when he came in the morning exchange of abuses was taking place in between his wife and sister-in-law of Jaya Khan. Brick bats were being pelted from both the sides. As soon as the appellant Zeenat All arrived Jiya Khan shouted that they were waiting for appellant. They rushed towards appellant and caused a blow with a wooden stick. The appellant picked a vegetable knife and started wielding it. It was urged that Jiya was continuously wielding lathi on him. Females of family had intervened and received injuries. He had stated that neither and Qamaruddin nor the three respondents namely, Balam, Hikamat and Hurmat were present at the spot. 10. It has been argued by the learned counsel for the appellant that Qamarrudin has improved upon his statement. In the first information report he had stated that he was sitting at his shop when Zeenat called his three brothers. Qamaruddin had admitted that his shop was situated at a distance of more than 200 yards from the place of occurrence. This witness on the other hand had stated in court that he had seen Zeenat Ali and his three brothers going towards the place of occurrence armed with weapons. It was urged that if the appellant had any intention of committing crime then they would not have exhibited their weapons so that Qamaruddin could see them. It was urged that this statement of Qamaruddin makes his presence at the spot doubtful. 11. We do not agree with the above contention of the learned counsel for the appellant. Qamaruddin had stated in the first information report that at about 7.30 a.m. he was sitting on his shop when Zeenat called his brothers Balam, Hikmat and Hurmat, who reside in Mohalla Kotwalan. 11. We do not agree with the above contention of the learned counsel for the appellant. Qamaruddin had stated in the first information report that at about 7.30 a.m. he was sitting on his shop when Zeenat called his brothers Balam, Hikmat and Hurmat, who reside in Mohalla Kotwalan. This statement of Qamaruddin in the first information report is quite in conformity with the statement before the trial court. He had stated in the court that he had seen Zeenat All going with his three brothers. From this act Qamaruddin could have easily inferred that Zeenat Ali had called his three brothers. He had mentioned this inference in the F.I.R. that Zeenat had brought his brothers. The details on which the inference was based could be furnished at the time of trial. Consequently we come to the conclusion that there is no improvement in the statement of Qamaruddin from his earlier statement in the first information report. 12. Zeenat Ali had threatened Jiyauddin that he will see him on the next day. Thereupon Jiyauddin had said ironically that he may do whatever he likes and he will also see what can he done by him. In such a challenging attitude it was probable that Zeenat Ali and his brothers walked towards the place of occurrence armed with their weapons and also openly exhibiting them. Considering this aggressive and exhibitive attitude of the appellant and respondent P.W. 1 Qamaruddin would have followed the assailants. This conduct of Qamaruddin was quite natural and in consonance with the ordinary human conduct. Qamaruddin P.W. 1 had stated that when he saw the assailants going in the 'Gali' he concluded that they were going to beat his brother. He stated that he had followed the assailants. He had heard the alarm from a distance of 20-25 paces from his house. This statement supports the prosecution version. It is probable that the assailants had assembled in the house of Zeenat Ali and thereafter scaling the intervening wall assaulted Jiyauddin. 13. Qamaruddin had stated that soon after the occurrence he had started for the hospital alongwith Jiyauddin. Jiyauddin as we discussed above, had been examined at 9. a.m. i.e., within half an hour of the occurrence. It is probable that the assailants had assembled in the house of Zeenat Ali and thereafter scaling the intervening wall assaulted Jiyauddin. 13. Qamaruddin had stated that soon after the occurrence he had started for the hospital alongwith Jiyauddin. Jiyauddin as we discussed above, had been examined at 9. a.m. i.e., within half an hour of the occurrence. Keeping in view the nature of the injuries when omentum was coming out from injury No. 1 it was the prime necessity that the injured would have been taken first to the hospital for medical treatment. The life was more precious than the first information report. The above conduct of Qamaruddin and others also speak that they are telling the correct facts. 14. It was argued that in the injury report Ext. Ka-8 it is written that Jiyauddin Khan was brought by Khajauddin S/o Zafi uddin Khan resident of Goojar Tola, P.W. Gunj district Rampur. This note in the injury report is of no consequences to the defence. Jiyauddin and other injured would have been brought to the hospital, by Qamaruddin and others who would have accompanied Qamaruddin. If the companion who was resident of same mohalla where injured resided, had produced the injured before the doctor and his name was recorded then that will not make any difference. The defence ought to have cross-examined. Qamaruddin whether this Khajauddin was any concerned person with the family and had no occasion to be present at the hospital and produce the injured before the doctor. For the reasons mentioned above, we are of the opinion that the statement of Qamaruddin Khan cannot be rejected. He was present at the spot and had seen the occurrence. 15. The learned Sessions Judge had observed in paragraph 25 of his judgment that the dying declaration, which is being used as previous statement of Ziyauddin (Ext. C-3), was a great variation from the statement of Ziyauddin before the lower court about the complicity of three respondents. The learned Sessions Judge noticed that in the statement of witnesses before the Executive Magistrate, it was stated that brick-bats were pelted. The learned Sessions Judge has also observed that Ziyauddin stated that he had called his three brothers, but at another place he stated that there were two brothers of accused Zeenat at the time of occurrence and he does not know their names. The learned Sessions Judge has also observed that Ziyauddin stated that he had called his three brothers, but at another place he stated that there were two brothers of accused Zeenat at the time of occurrence and he does not know their names. The learned Sessions Judge observed that the Statement (Ext. C-3) can be used for contradiction and omission. After placing reliance on (Ext. C-3), the Sessions Judge concluded by saying: "The witness has however stated that he was not in a fit state of mind and that he does not remember as to what he had said before the Executive Magistrate. Any how the possibility of the fact that the brick bats were pelted in the occurrence in question cannot be ruled. In evidence it has come that the accused Zeenat has got five real brothers, out of them three were named in the report Ext. Ka-1. In this way also the statement of the injured (P.W. 29) would certainly create a reasonable doubt about the implicitly of the other three accused. namely, Hurmat, Balam and Hikmat. The defence case further finds clear corroboration from the medical evidence on record. In the opinion of the doctor S.K.R. Nagvi (P.W. 5), the injuries of Ziauddin Khan were caused by some sharp cutting weapon like a Chhuri and the injuries of Smt. Shamshad Biegum were caused by pelting of brick-hats. Injury No. 6 of Ziauddin Khan was also caused by pelting of brick bats. .It further finds clear. corroboration from a circumstances that the I.O. had recovered blood stained brick bats Exts. 4 and 5 from the scene of occurrence. Dr. A.K. Chadda (C.W. 1) stated that he had given a certificate of fitness before recording the dying declaration of Ziauddin Khan. Shri Gaya Prasad, Deputy Collector Rampur has proved the dying declaration of Ziauddin Khan (P.W. 2). It is no doubt true that the Executive Magistrate Shri Gaya Prasad (C.W. 2) did not take necessary precaution before recording the dying declaration but it would not affect in any way because the prosecution is not going to rely upon the dying declaration which is being relied upon by the accused persons for the purposes of contradiction in the statement of Ziauddin Khan (P.W. 2). In view of all these facts and circumstances I am of the opinion that the prosecution has not been able to establish the complicity of the accused Hurmat, Hikmat and Balam who are entitled for benefit of doubt under Sections 452, 307/34 and 324/34 I.P.C." 15 (a) Ziauddin (P.W. 2) was an injured person. He has supported the prosecution version. It is not disputed that Balam,Hurmat and Hikmat are brothers of Zeenat Khan. The injury on the person of Ziauddin indicates that he was in a very serious condition. In such a serious condition sometimes memory fails. Hence it was probable that the witness might not have recollected the name of the brothers of Zeenat. The learned Sessions Judge had given much weight to the statement of Ziauddin recorded before the Executive Magistrate which has been marked as Ext. C-2. The injuries on his person were on the vital part of the body. From injury W. 1 the omentum was coming out. It is, therefore, possible that the mental condition of the injured was not in a proper condition. In the extract of the judgment quoted above, the learned Sessions J u d g e s h a d himself observed that the Executive Magistrate did not take necessary precaution before recording the dying declaration. Despite this infirmity observed by the learned Sessions Judge, he observed that the infirmity will not affect the reliability of the statement because the prosecution is not going to rely upon the dying declaration. This reasoning of the Sessions Judge was quite perverse. In order to discredit the statement of a witness, it must be established that the previous statement was actually made. Double standard can- not be applied in assessment of evidence. Since the learned Sessions Judge was not convinced that the statement (Ext. C-2) was properly recorded, it could not be used for the purpose of contradiction even. The correctness of Ext. C-2 is shrouded with serious doubts. The: circumstances evidence on record go to show that at the time of recording of statement (Ext. C-2) Ziauddin must have been in a very serious condition. In such a condition, it was probable that the witness might not have recollected the names of the brothers of Zeenat appellant. In Ext. C-2. Ziauddin had clearly stated that four persons had scaled the intervening wall and assaulted him with their weapons. C-2) Ziauddin must have been in a very serious condition. In such a condition, it was probable that the witness might not have recollected the names of the brothers of Zeenat appellant. In Ext. C-2. Ziauddin had clearly stated that four persons had scaled the intervening wall and assaulted him with their weapons. There is a statement that Zeenat had called his three brothers. Hence even if Ext. C-2 used for the purpose of contra- diction, it does not discredit the testimony of Ziauddin. The respondents had stated in reply to question No. 7 in the statement under Section 313, Cr. P.C. that a marpit had taken place between the complainant side and his brother Zeenat and, therefore, they are falsely implicated. Thus it was not disputed that the respondents are brothers of Zeenat Khan. The learned Sessions Judge has completely misread Ext. C-2. He had given undue weight to Ext. C-2, which he himself had opined to be unreliable because necessary precautions were not taken by the Executive Magistrate. The version of Ziauddin is corroborated by other reliable witnesses viz. Smt. Tara (P.W. 3) and Qamaruddin (P.W.1). 15 (b). Ziyauddin had 12 cm. x 6 cm. contusion on the right back over scapular region. It is true that doctor had opined that this should be caused by blow from brick bats. The prosecution ought to have got it explained from the doctor that this injury could be caused by fall on the brick bats. However, this appears to be probable because blood was found on Exts. 4 and 5, the pieces of brick bats. After receiving injuries 1, 2, 4, 5, and 7 Ziyauddin would have fallen on the bricks lying on the ground and in this process could have received the contusion on his right shoulder region. That is how the blood might have been fallen on the brick bats and were collected by the investigating Officer. No other explanation about presence of blood on bricks in Smt. Shamsad Begum had a small injury that is an abraded contusion 2 cm. x 1 cm. on the right side of the upper lip and 1 cm. x 1 cm. on the inner aspect of the right side of upper lip. Keeping in view this injury it does not appear probable that both. the injury could be of brick bats. x 1 cm. on the right side of the upper lip and 1 cm. x 1 cm. on the inner aspect of the right side of upper lip. Keeping in view this injury it does not appear probable that both. the injury could be of brick bats. If the brick bats had actually caused injury on Smt. Shamshad Begum then, dimension should have been bigger. The teeth underneath the injury would have also dislocated or broken. The injury on Smt. Shamshad appears to be typical Lathi injury. Conclusion of the learned Sessions Judge that this injury was caused by brick bats was not based on the proper reading of the evidence. We are of the opinion that the observation of the learned Sessions Judge about the three respondents holding them not guilty was perverse in nature. 16. Tara Begum (P.W. 3) had stated that appellant Zeenat and respondents Balam, Hikmat and Hurmat had assaulted her, Smt. Shamshad and Ziyauddin. She had stated in cross-examination that Zeenat has five other brothers. She denied that she did not know the name of other brothers of Zeenat. She denied the suggestion of the defence, that brick-bats were pelted on each other in a quarrel between the ladies of the complainant and the accused. It was also denied that Ziyauddin had wielded lathi and thereupon Zeenat had inflicted knife blow. If Ziauddin was holding a lathi then Zeenat would not have been able to reach near him as to cause knife injury. 17. The learned Sessions Judge had given an undue importance to a fact that the investigating Officer had recovered some blood stained brick bats at the spot. If -some brick bats were lying on the ground and blood fell on them from the injuries of the three injured then, the recovery of blood stained brick-bats was probable If brick bats strike at the body and then fall on the ground then they do not become blood stained. This recovery does not support the contention of the defence that actually brick bats were exchanged at the time of occurrence. The Investigating Officer had not sent the brick- bats and the blood stained material to the chemical examiner for report. Nothing material was elicited in the cross-examination of Tara Begum to show that she was stating in correct fact. She is an injured witness and her statement cannot be disbelieved. The Investigating Officer had not sent the brick- bats and the blood stained material to the chemical examiner for report. Nothing material was elicited in the cross-examination of Tara Begum to show that she was stating in correct fact. She is an injured witness and her statement cannot be disbelieved. She has withstood her cross-examination quite well. 18. The learned Sessions Judge had given benefit of doubt to the respondents only on the basis of statement Ext. C-2 of Jiyauddin before the Executive Magistrate. The statement Ext. C-2 does not rule out the presence of three respondents. Their names were disclosed by Qamaruddin at the earliest. Their presence at the soot and active participation in the crime is proved by the statement of Qamaruddin, Jiyauddin and Smt. Tara Begum. The learned Sessions Judge had erred in a acquitting the respondents. The finding were not based on proper reading of the evidence. There was very clinching evidence against the respondents to show that they had actually participated in the crime. 19. It has been argued from the side of the defence that the respondents cannot be convicted for the offence under Section 307 of Indian Penal Code. This contention of the learned counsel for the defence has sufficient force. The first information report does not say that the appellant and the respondents had any intention to kill Jiyauddin. From the first information report itself it appears that the main intention of the assailant was to cause injury on the person of Jiyauddin and other members on account of earlier incident. The witness had not stated any fact from which it could be inferred that the appellant and the respondents had any common intention to cause death and in pursuance of that intention they had attempted to cause death. Hence offence under See. 307 of Indian Penal Code is not made out from the facts and circumstances of the case. Only offence under Section 324 read with Section 34, I.P.C. is made out against all the accused persons. 20. The evidence goes to show that the aooellant and the respondent had scaled the wall. They had prepared together armed with various weapons for causing hurt to Ziauddin. Qamaruddin had seen them going towards his house. The necessary ingredients of offence under Section 452 of the Indian Penal Code were established against the accused persons. 20. The evidence goes to show that the aooellant and the respondent had scaled the wall. They had prepared together armed with various weapons for causing hurt to Ziauddin. Qamaruddin had seen them going towards his house. The necessary ingredients of offence under Section 452 of the Indian Penal Code were established against the accused persons. The learned Sessions Judge had sentenced the appellant Zeenat to two years R.I. under Section 452 of Indian Penal Code. This cannot be said to be an excessive punishment. Under Section 324 of Indian Penal Code, also the same punishment. would meet the end of justice. 21. For the reasons mentioned above Criminal Appeal No. 359 of 1979 filed by Zeenat is allowed partly and conviction under Section 307 is converted to one under Section 324 of Indian Penal Code. He is sentence to rigorous imprisonment for two years under Section 324. Each of the respondents are further convicted and sentenced to rigorous imprisonment. His conviction and sentence under Section 452 of Indian Penal Code is maintained. The Government Appeal No. 1838 of 1979, State of U.P. v. Balam and two others is allowed. The A-6 judgment and order of the trial court acquitting them are set aside. Each of the respondents namely Hikmat and Balam are convicted under Section 452 of I.P.C. and sentenced to rigorous imprisonment for two years under Section 394 read with Section 34 of Indian Penal Code. The sentence of all the convicted persons shall run concurrently. The appellant and respondents shall surrender to serve out the sentences.