PALOK BASU, J. ( 1 ) SATYA Deo and Anil Kumar, father and son respectively have filed this appeal against the judgment and order dated 7. 11. 1979 passed by the VII Additional Sessions Judge, Blah in Session Trial No. 284 0 (1979 whereby both of them stood convicted: under Section 302/34. I. P. C. for which Imprisonment for Life was awarded to both of them, Anil Kumar and Satya Deo were convicted under Section 324/34 I. P. C. for which one Years R. I. was awarded to both of them and they were also convicted under Section 324/34 I. P. C. for which pine months R. I. was awarded to them. Aggrieved, the appellants have challenged the conviction and sentence in this appeal. ( 2 ) THE learned counsel Sri I. H. Khan and Sri A. A. Khan have been heard at length in support of this appeal, which has been opposed by Sri Vidhu Bhushan Singh A. G. A. and the entire record has been examined. ( 3 ) THE charges against the appellants were that on 5. 9. 1978 at about 6. 00 A. M. they committed the murder of, Ajai Kumar by intentionally causing his death and. in that process aused injuries to the informant P. W. 1 Inder Deo, his wife Smt. Gyan Deyi, their daughter Veena and son-in-law Lala Ra m. ( 4 ) THE prosecution case is as follows:inder Deo P. W. 1 and Satya Deo appellant are brothers. P. W. 2 Smt. Gyan Devi is the wife of Inder and the deceased Ajai Kumar is the son-in-law of Inder Dec. Km. Veena is the daughter and Lala Ram is the son-in-law of Inder Deo being married to his other daughter Kusum. All were living in a common house in Mohalla Nathuram Gali Chhapatti in Kasganj with in district Etah, In their ancestral house Satya Deo and his family members were living in the ground floor, while the informant Inder Deo and his family members were occupying the first floor, where however one room was in occupation of Satya Deo. The location of the first floor was such that from the house of Ragbubar Dayal, which was adjacent in which P. W. 4 Ram Kishan living, complete visibility was available regarding what had been happening in the informants house. On 5. 9. The location of the first floor was such that from the house of Ragbubar Dayal, which was adjacent in which P. W. 4 Ram Kishan living, complete visibility was available regarding what had been happening in the informants house. On 5. 9. 1978 P. W. 2 Smt. Gyan Devi was cleaning the utensils on the floor just by the side of Kitchen, which was close to the room of Satya Pro in the first floor, which was objected too. Smt. Gyan Devi replied Satya Deo and Anil Kumar appellants, that as it was raining and that is why she was cleaning the utensils there and she would remove them soon. At this stage unfortunately the young lad, deceased Ajai Kumar (15) came out of the room and said to the appellants that his mother was cleaning utensils in her portion and why she should remove the utensils. At the altercation Satya Deo and Anil Kumar rushed to their room and both of them came out with knives in their hands Satya Deo said Mar Saley Ko. On this appellant Anil Kumar inflicted knife blows on the Person of Ajai Kumar, who made sparate attempt run away, but he fell down. His mother Gyan Devi, sister Km. Veena, brother-in-law Lala Ram and his, father Inder Deo rushed 1and the site and med to Save their son Ajai Kumar, then Satya Deo inflicted knife blows on Km. Veena and Lala Ram, while Anil Kumar and Satya Deo caused injuries to the others. Ids also said that Smt. Gyan Devi was also dragged on the ground by both the appellants At the hue and cry the aforesaid eye witness namely Ram Kishan P. W. 4, who was living in, the immediate neighbourhood, rushed to the site and saw the incident. The Witness could not apprehend the appellants, who made good their escape. Inder Deo took his wife and Ajai Kumar immediately to the hospital, where the doctor who attended Ajai Kumar, declared him dead. P. W. 7 Dr, Ramesh Chandra Bajpai examined Smt. Gyan Devi at 7. 30 A. M. , Inder Deo informant was examined at 9. 00 A. M. , Km. Veena was examined at 10. 30 A. M. and Lala Ram was examined at 11. 00 A. M; and prepared the medical report, which were marked, in the trial-Court as Ex. ka-19, Ex. Ka-20, Ex. ka-21 and Ex. ka-22. 30 A. M. , Inder Deo informant was examined at 9. 00 A. M. , Km. Veena was examined at 10. 30 A. M. and Lala Ram was examined at 11. 00 A. M; and prepared the medical report, which were marked, in the trial-Court as Ex. ka-19, Ex. Ka-20, Ex. ka-21 and Ex. ka-22. Incidentally it may be mentioned here that since Ajai Kumar had died by the time when he had reached to the hospital, the doctor had forwarded a note to the Senior Medical Officer intimating him about the said death, which later on has been proved and marked as Ex. ka-23 by Dr. Ramesh Chandra Bajpai. ( 5 ) COMING to the chronology, after they wife was examined and the son was declared dead, the informant wrote out the First Information Report and took it to the police station Kotwali, Where it was registered as case crime No. 567 under Sections 302 and 307, I. P. C; at 8. 15 A. M. on 5. 9. 1978, P. W. 6 Ramji Lal Sharma S. I. was present at the police station, who had proved the, registration of the case by, head Moharrir Kailash Chandra vide check. Entry No. 476 a copy of which bas been proved and marked as Ex. Ka-3. The General Diary entry No. 66 has also been proved and marked as Ex. ka-4 by which a case was registered. P. W. 6 Ramji Lal Sharma was entrusted with the investigation of the case, who recorded the statements of Inder Deo and that of the head moharrir then and there. He prepared the necessary memorandum for getting the other injured examined at the hospital. He also recorded the statements of other injured namely Lala Ram and Km. Veena and went to the spot where he was shown the place of the incident by Kusum Kumari, the other daughter of the informant Inder Deo. A site-plan Ex. ka-5 was drawn up, which has been proved on the record. He also recovered the blood stained bricks and plain bricks etc. from the spot and prepared the niemorandum Ex. ka. 5 and Ex. ka-6. Another memorandum showing that the appellants were not present at their house, was drawn up and proved and marked as Ex. Ka- 7. ka-5 was drawn up, which has been proved on the record. He also recovered the blood stained bricks and plain bricks etc. from the spot and prepared the niemorandum Ex. ka. 5 and Ex. ka-6. Another memorandum showing that the appellants were not present at their house, was drawn up and proved and marked as Ex. Ka- 7. He had also completed the inquest and then deputed constable Sita Ram P. W. 3 for getting the post-mortem done as a result of which the dead body of Ajai Kumar was taken to the mortuary where post-mortem examination was conducted on the dead body of Ajai Kumar by P. W. 5 Dr. Daya Shanker. He found the following two injuries on the body of the deceased:1. Incised wound left interscapular region 4 Cm. x 2 Cm. x chest cavity deep. 2. Incised wound left supra scapular region 5. 5 Cm. x 2. 5 Cm. x chest cavity deep. On the internal examination haematoma was found in layers of left chest wall. Left pleura was found cut at two places and about 10 oz. of blood was found in the cavity. The left lung was lacerated and collapsed. The stomach and small intestines were found empty. The large intestines contained some faecal matter. The opinion given by Dr. Daya Shanker is that the deceased had died as a result of shock and haemorrhage on account of ante-mortem injuries found by the deceased. After completing the investigation, the Investigating Officer filed a charge-sheet and this is how two appellants were put on trial. ( 6 ) BOTH the appellants have denied their participation in the incident and attributed their false implication. Appellant Satya Deo had further pleaded before the trial Judge that on the date and time of occurrence he was present in District Hardoi, where he had gone to meet a prisoner along with his brother-in-law D. W. 2 Kedar Nath Katiyar. In order to lend support to the said defence version D. W. 1 Shyam Dularey Awasthi, Deputy Jailor, District Jail, Bardoi has been examined on 5. 10. 1979. ( 7 ) TO prove the charges against the appellants, the prosecution examined three eye witnesses P. W. 1 is the informant. P. W. 2smt. Gyan Devi is the wife of informant. Both these witnesses are injured witnesses. 10. 1979. ( 7 ) TO prove the charges against the appellants, the prosecution examined three eye witnesses P. W. 1 is the informant. P. W. 2smt. Gyan Devi is the wife of informant. Both these witnesses are injured witnesses. The third eye witness is P. W. 4 Ram Kishan, who was the next door neighbour, ( 8 ) FROM the cross-examination of all the three eye witnesses, it appears that no consistent plea has been suggested in the cross-examination. In fact nothing has been elicited in the crossexamination of these witnesses, which would go to discredit their testimony. Much emphasis has been given by the learned counsel for the appellants on the fact as mentioned in the cross examination of P. W. 1 and P. W. 2 about presence of their elder son Raj Kumar at the time of incident and much capital was sought to be made out from the statements in the cross- examination that the said Raj Kumar did not go to the hospital along with his injured parents or seriously injured younger brother Ajai Kumar. The defence suggestion made during the cross- examination was emphasised in this appeal that Raj Kumar may have assaulted his mother and father and in that process might have caused injuries even to Ajai Kumar because his parents might have refused to hand over the money to Raj Kumar. It was suggested that Raj Kumar was a habitual gambler. This argument is as baseless as the suggestion itself. Nothing has been brought out in the cross-examination or by any other evidence indicating that Raj Kumar was a gambler and that he had demanded money from his parents. The said suggestion and the argument is devoid of any substance what-so-ever. It maybe noted that the evidence disclosed that even his father Inder Deo, who was aged about 70 years, was present at the shop, was also to be informed of this incident It has come in the statement of P. W. 1 that. he had informed his father about this incident while going to the hospital. Consequently some, persons should have been left at the place where such ghastly incident had happened. he had informed his father about this incident while going to the hospital. Consequently some, persons should have been left at the place where such ghastly incident had happened. The fact that his father and mother who had boarded along with their seriously injured son, might have persuaded his elder son namely Raj Kumar to beat home to attend the other persons present who also must have become over awed. This argument is, there fore, rejected without any hesitation whatsoever. The time of medical examination of Smt. Gyan Devi is noted as 7. 30 A. M. as it appears from the statement of P. W. 7 Dr. Ramesh Chandra Bajpai. He had found eight incised wounds and three abrasions/lacerated wounds. Similarly the informant Inder Deo was medically examined at 9. 00 A. M. The other two victims namely Km. Veena and Lata Ram were medically examined at 10. 30 A. M. and 11. 00 A. M. respectively, but they have not been examined as eye witnesses. It is, therefore, proved beyond all shadow of doubt that these two eye witnesses had sustained injuries at the incidents as deposed by them. The mention of the injuries of the aforesaid two eye witnesses is also to be found in the First Information Report. Consequently the presence of these two injured witnesses at the place of incident is overwhelmingly established. ( 9 ) THE trial-court has, therefore, rightly placed reliance on the testimony of these three eye witnesses and recorded the findings that the prosecution case stands proved. ( 10 ) NOW coming to the question of alibit as furnished through the testimony of D. W. 1 Sri Shyam Dularey Awasthi, who was the Deputy Jailor on 5. 9. 1978 in District Jail, Hardoi and D. W. 2 Kedar Nath Katiyar, who is a resident of Hardoi and happened to be the brother-in-law (Bahnol) of appellant Satya Dec, the same stands not proved at all. All that emerges from the testimony of D. W. 1 is that there was an application moved before the Jailor seeking permission to meet a prisoner, which purports to have been signed by Kedar Nath Katiyar, Satya Deo and one Maya Prakash, but he has not even identified the signature of appellant Satya Deo much less his physical presence. All that emerges from the testimony of D. W. 1 is that there was an application moved before the Jailor seeking permission to meet a prisoner, which purports to have been signed by Kedar Nath Katiyar, Satya Deo and one Maya Prakash, but he has not even identified the signature of appellant Satya Deo much less his physical presence. The Jailor has also proved the entries made in the register, which do not indicate any signature of Satya Deo on the said register. The trial Judge has discarded the testimony of D. W. 1 on the ground that it does not establish at all the fact mat Satya Deo appellant was actually present in District Hardoi on 5. 9. 1978 at 10. 03 A. M. as is sought to be made out by the appellant it has come in the statement of these witnesses that it was a holiday on account of Id and therefore normally no one was permitted to meet a prisoner on holiday. He has said that in the application there was some endorsement by some alleged member of the Legislative Assembly; but nothing has been brought on record to indicate that infact as special case any of these persons mentioned in that application was really in the jail at 10. 03 A. M. for meeting a prisoner as confined therein. The trial court has discarded the testimony of D. W. 2 on the ground that he is the brother-in-law of the appellant and he has not testified any reason why the appellant should have accompanied his brother in-law to the jail for meeting a prisoner, who was not related much less, friendly to him. Apart from all these, it may be noted here that it is admitted to the witnesses that one can reach Hardoi within about five or six hours from the place of incident. It is further admitted these two witnesses that from Shahbad, Hardoi is only 35 miles and it is common knowledge that from Shahbad one might reach Kasganj within about two hours for so. ( 11 ) IN view of the a foresaid reasons the trial Judge has rightly discarded the testimony of these two witnesses and the findings that the appellant Satya Dec has miserably failed to prove the plea of alibi taken by him, has to De up-held. ( 11 ) IN view of the a foresaid reasons the trial Judge has rightly discarded the testimony of these two witnesses and the findings that the appellant Satya Dec has miserably failed to prove the plea of alibi taken by him, has to De up-held. ( 12 ) IN view of the aforesaid discussion the prosecution case as against the appellants, stands conclusively proved and established. ( 13 ) THERE can be no doubt about the intention of appellant Anil Kumar in causing two injuries on the person of deceased Ajai Kumar. The statement of the doctor is clear that two injuries were sufficient in the ordinary course of nature to cause death. The action of Anil Kumar appellant would one within both the clauses i. e. whoever causes injuries with the intention of causing the death, and, or with the intention caused such bodily injuries is likely to cause death. Therefore, the charge under Section 302, I. P. C. is made out from he evidence produced in the case. In so far as Anil kumar is concerned, his conviction under Section 124, I. P. C. for having caused injuries to Snit. Gyan Devi and Inder Deo informant or sharing he common intention with such injuries as were accused by Satya Deo, stands also fully proved. Therefore, his conviction under Sections 234 and 324/34, I. P. C. and the sentences awarded there in cannot be questioned. However, a thoughtful argument is available with regard to Satya Deo appellants sharing the said common intention with Anil Kumar, in so far as two injuries caused, to the deceased Ajai Kumar is concerned. In the First Information Report, no special words have been attributed to the appellant Satya Doo, which however, during the testimony of the witnesses, have been suggested to be Mar Saley Ko. It was rightly pointed out that it is not even stated in the F. I. R. that even the informant at that stage thought that both the appellants were having intention to cause such injuries to Ajai Kumar as was likely to cause his death. It was rightly argued that even though the prosecution case is that two appellants came out with two knives, but only Anil Kumar gave blows on the back of Ajai Kumar and caused him two injuries, which were fatal. It was rightly argued that even though the prosecution case is that two appellants came out with two knives, but only Anil Kumar gave blows on the back of Ajai Kumar and caused him two injuries, which were fatal. From the injuries of the victims, namely Informant Inder Deo and the eye witness Smt Gyan Devi and two other victims not examined, namely Km. Veena and Lala Ram who had suffered only minor injuries, it was rightly pointed out in this, regard that both the appellants have been convicted with regard to those injuries of the two victims examined as P. W. 1 and P. W. 2 only under Section 324, I. P. C. and no charge under Section 307, I. P. C. with regard to those witnesses injuries has been found proved by the trial Judge hi this connection it may be noted that while the First Information Report was lodged under, Sections 302 and 307, I. P. C. , but no charge under Section 307, I. P. C. was even framed against either of the appellants by the trial Judge With regard to the injuries sustained by the four victims. The other aspect of the matter in this regard is that the incident, which had happened, was perhaps not premeditated. The matter would go to such extent as Anil Kumar to become aggressive enough to give two repeated blows on the young lad Ajai Kumar so as to extinguish his life, could not be known to Satya Deo. There is nothing on record to indicate that even though Satya Deo had been trying to be in possession over the ancestral house, exclusively, he could have thought of killing Ajai Kumar, an innocent child. For all this action, which is the individual act of Anil Kumar, the intention of Satya Deo can be inferred only to the extent of causing simple injuries even to Ajai Kumar Section 34, I. P. C. would not, therefore, be attracted to make Satya Deo guilty under Section 302, I. P. C. for the death of Ajai Kumar for which appellant Anil Kumar alone is responsible. ( 14 ) IN view of the evidence aforesaid, the case of appellant Satya Deo with regard to the injuries of Ajai Kumar cannot make him vicariously liable for his murder which charge is not proved beyond reasonable doubt as against him and therefore, he is entitled to acquittal of the charge under Sectiont 302/34, I. P. C. For the two sharp edged injuries on the person of Ajai Kumar, he is to be held guilty under Section 324/34, I. P. C. The result of the entire discussion aforesaid is that the appeal is dismissed in so far as Anil Kumar appellant is concerned. His conviction, under Sections 302/34, 324 and 324/34, I. P. C. and the sentences of Life Imprisonment, one years R. J. and nine months R. I. respectively as, awarded by the trial-court, are upheld. He is on bail. He will surrender to his bail bonds forthwith to serve out the sentences awarded to him which will-run concurrently. ( 15 ) THE appeal of Satya Deo is partly allowed. His conviction under Section 302/34, I. P. C. and sentence of Imprisonment for Life is set aside, instead he is convicted in so far as causing the injuries to Ajai Kumar is concerned, under Section 324/34, I. P. C. and sentenced to nine months R. I. His conviction, under Sections 324 and 324/34, I. P. C. with regard to the injuries, of Smt. Gyan Devi and Inder Deo and sentences of one years R. I. and nine months R. I. as awarded by the trial Court, are upheld. All the three sentences will run concurrently. He is on bail. He will also surrender to his bail bonds forthwith to serve out, the sentences awarded to him. Appeal allowed partly. .