Judgment S.Haider Shaukat Abidi, J. 1. Criminal Appeal No. 901 1989 has been filed by appellants - Kesho Singh, Bihula Rai, Ram Prasad Rai, Mahendra Tatwa, Dip Narain Singh, Durga Singh, Guddi Mandal & Bhulan Rai against their conviction u/s. 302 read with sec. 149 of the Indian Penal Code (hereinafter referred to as I.P.C.) and sentence of rigorous imprisonment for life. Bhulan Rai has further been convicted u/s. 323, I.P.C. and sentenced to sixmonths rigorous imprisonment. Criminal Appeal No. 144 of 1989 has been filed by Sakali Rai against his conviction u/s. 302 & also sec. 302 read with sec. 149, I.P.C. life sentence under each count since both the appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. One accused Mahabir Singh, who has not been charge-sheeted, is said to have died. 2. The case of the prosecution is that a fardbeyan (Ext. 7) was given out by Motilial Yadav (P.W. 6) brother of deceased Ragnuni Yadav on 3.7.1978 at 1.30 p.m. at Baushi Hospital to AX. Sinha (P. W. 15) which formed the basis of the first information report (Ext. 8). The informant has said that he had got a sale-deed of land measuring 1 bigha 1214 kathas of Khata No. 50 from Bhulan Rai son of Tulsi Rai about three years ago and for the last two years he was in possession by sowing the crop. This year Bhulan Rai started quarrelling by saying that he had not executed the sale-deed and so he would allow to plough the land. On 3.7.1978 in the morning at about 8 A.M. when he went to the land to plough the same along with his elder brother Raghuni Yadav (deceased) and other labourers. While he was ploughing the land which is south of the house of Bhulan Rai then Bhulan Rai and nine other accused including Mahabir Singh arrived there armed with bhala, lathi and tengari and stopped the informant from ploughing the land, whereupon the informant said that he had purchased the land. Then Bhulan Rai assaulted on the head of the informant and Mahabir Singh also assaulted by lathi. The informant on getting the injuries fell down. Then Sakil Rai assaulted Raghuni Yadav brother of the informant by tengari on his head upon which he fell down and became unconscious on the spot. Then Bhulan Rai assaulted on the head of the informant and Mahabir Singh also assaulted by lathi. The informant on getting the injuries fell down. Then Sakil Rai assaulted Raghuni Yadav brother of the informant by tengari on his head upon which he fell down and became unconscious on the spot. Upon alarm persons of village came and the accused ran away. This occurrence is said to have been seen by Huro Mahaton, Vishun Mahaton, Muneshwar Marik & Gyani Mahaton M. Yadav (P.Ws. 4, 3,2 and 1). 3. The informant Motilal and his brother Raghuni Yadav were medically examined by Mr. Shrideo Mandal (P.W. 12) of Baushi Hospital on the same day (3.7.1978) at 11.40/11.45 A.M. and he found one injury on the person of the informant, being simple in nature, caused by hard blunt substance for which injury report Ext. 5 is there, Raghuni Yadav was found to have received two injuries, lacerated wound on the right side of the head and swelling on the right side of the head and bleeding from the mouth, nose and right ear due to injury in the internal part of the head and the injuries were grievous in nature and the victim was unconscious. His report is Ext. 5/1. He was referred to the Bhagalpur Medical College Hospital for treatment where he died on 4.7.1978. 4. The case was investigated by AK. Sinha, Officer Incharge (P.W. 15) who examined the witnesses and after completing investigation submitted chargesheet against the appellants. 5. The accused, in defence, denied the prosecution case and alleged that they have been falsely implicated in this case. No witness in defence was examined. 6. The prosecution, in support of its case has examined fifteen witnesses. Out of whom Muneshwar Marik, Gyani Mahaton, Vishun Mahaton, Huro Mahaton, Puran Yadav, and Motilal Yadav (informant) (P.Ws. 1 to 6) are eye witnesses. P.W.7 Shyama Kanta Jha has proved Exts. 2 to 2/6 while P.W. 8 Nakuldeo Jha proved Exts. 2/7 to 2/11. P.W. 9 Dr. Haider Imam Ansari conducted the post mortem examination on 4.7.1978 and submitted post mortem report (Ext. 3) Saryug Yadav (P.W. 10) Rashuk Marik (P.W. 11) had proved rent receipts (Exts. 4 to 4/8) and Ext. 4/10 respectively. P.W. 12 Srideo Mandal had medically examined the informant as well as the deceased while they were brought to the Baushi Hospital. Haider Imam Ansari conducted the post mortem examination on 4.7.1978 and submitted post mortem report (Ext. 3) Saryug Yadav (P.W. 10) Rashuk Marik (P.W. 11) had proved rent receipts (Exts. 4 to 4/8) and Ext. 4/10 respectively. P.W. 12 Srideo Mandal had medically examined the informant as well as the deceased while they were brought to the Baushi Hospital. P.W. 13-Dinesh Kumar Yadav has proved inquest report (Ext. 6) prepared by Pradip Kumar P.W. 14 Md. Sakur has proved Fardbeyan (Ext. 7) and First Information Report (Ext. 8) P.W. 15 Arun Kumar Sinha is the La. who submitted chargesheet after completing investigation. 7. The learned trial court after considering the entire material on the record has convicted and sentenced the appellants as said above. 8. Learned counsel for the appellants had urged that the order of conviction is bad in law as the witnesses have contradicted themselves. Further from the evidence on the record it docs not appear that there was any intention on the part of the accused to kill, rather they had gone to the spot not to allow the informant and party to plough the land which They had not sold to the informant and the informant was claiming the same to be his own. Further there was no intention on the part of the accused persons to cause death, as there was no repetition of the blow of angary which was used from the reverse side and not from the sharp side and so no case u/s. 302, I.P.C. is made out. He further stated that, if at all, a case is made out it may be at best u/s. 304, I.P.C. and the other appellants also had got no intention, though they had gone to the spot armed with weapons but they had not used the same and it was also Bhulan Rai, who is said to have used lathi upon the informant. It was also contended that one blow was given on the informant and the case of the prosecution is that two blows were given, one by Bhulan Rai and the other by Mahabir Singh who was not being charge sheeted and so it cannot be said as to whose lathis blow had hit the informant. It was also contended that one blow was given on the informant and the case of the prosecution is that two blows were given, one by Bhulan Rai and the other by Mahabir Singh who was not being charge sheeted and so it cannot be said as to whose lathis blow had hit the informant. Lastly, it was contended that the appellants had suffered this order since the year 1978, specially Sakali Rai, who has been in jail for more than four year and specially from the date of judgment dated 31.1.1989 when he has not been granted bail. To appreciate these contentions the evidence will have to be scrutinised with care and caution. 9. P.W. 6 is the informant. He says that on the day of occurrence he and his brother Raghuni Singh were sowing maize and Dilo Singh and Munni Laillaiwahas were ploughing the field. Then all the eight appellants and one Mahabir Singh not charge-sheeted, arrived there. Accused Sakali Rai armed with tangi, Ram Prasad Rai with bhala and others with lathis. Bhullan Rai said that he would not allow to plough the land. Then the informant and his brother said that he (Bhullan Rai) had already settled the land to them and so why they should not be allowed to plough u/s land. Then Bhullan Rai and Mahabir Singh assaulted the informant by lathi on -the head and on the backside respectively, whereupon the informant fell down. Then Sakali Rai gave a tangi blow from the reverse side on the head of deceased Raghuni Yadav who on getting injury fell down and became unconscious. On the alarm Bhuneshwar Marik, Puran Yadav, Huro Mahto, Vishun Mahto, Rani Yadav, Nageshwar Yadav & others came to the spot, and saw the occurrence. After the assault the accused filed away from the spot. The victim was taken from the place of occurrence to his house and from there he was taken to Bioushi State Dispensary the Sub Inspector of police came and recorded the fard-beyan of the informant. At the Dispensary, the victim as well as the informant were treated by the doctor. Thereafter the doctor referred the victim to the Bhagalpur Medical College Hospital and the Victim was taken to Bhagalpur Medical College Hospital where he died in the hospital. At the Dispensary, the victim as well as the informant were treated by the doctor. Thereafter the doctor referred the victim to the Bhagalpur Medical College Hospital and the Victim was taken to Bhagalpur Medical College Hospital where he died in the hospital. The land measuring 1 bigha 12¼ dhurs was said to have been sold through the registered sale-deed to the informant by Bhullan ,Rai, Bihula Rai, Bhikhari and Kharia Devi about two years before the occurrence. The plot in which the occurrence had taken place is said to be measuring 12¼ decimals. Bhullan Rai and accused Bihula Rai are real brothers. Bhikhari Devi and Kharia Devi are their sisters and the time of executing the sale-deed they were joint and the informant- party had taken possession of the land after the sale-deed being executed. They had got their names mutated/and on paying revenue they used to get rent receipts from the State of Bihar. He gave out the boundary of the said land and its khala No. 58/50 and Khasra No. 275/704. He also gave out that the accused are related inter se. The said 1 big ha 12¼ kathas land had fallen in the share of Bhullan Rai, and Bihula Rai after partition and both of them were in possession of the land before being sold. He further said that witness Nageshwar Yadav had colluded with the accused persons and so he would not give evidence. Out of Halwahas Dilo Singh had died. MuniLal Halwaha is still alive but on account of fear of the accused he is not prepared to depose. He had paid amount of sale-deed and for that paper had been given by Bhullan Rai which had been lost on account of docoity in the house of the informant on 26.1.1979. He had not retention about loss of the receipt in the First Information Report and the dacoity case, as the original sale-deed was with him. The informant and his brother were not afraid on account of the appellants coming with weapon, as the informant had already obtained sale-deed of the land. On gelling injuries he had not become unconscious. The Halwahas had got sticks for driving the bullocks and they did not run to save the informant party. The casused had orally said to stop but they had not stopped the bullocks from ploughing. On gelling injuries he had not become unconscious. The Halwahas had got sticks for driving the bullocks and they did not run to save the informant party. The casused had orally said to stop but they had not stopped the bullocks from ploughing. The mar-pit had taken place in the middle of the field. The accused had not surrounded Raghuni from all sides and Raghuni had not tried to fun away. Back portion of tangari was four fingers wide and it had two cubit long handle. Only one blow was given by tangari. It was not snatched from the accused. There was bleeding from the car and nose of Raghuni Yadav which got stained on the clothes. He (informant) received two lathis blow on his head and blood had fallen on his clothes. He had not seen blood falling on the ground. His injury report had been prepared at Baushi State Dispensary and Raghuni Yadav was also examined by the doctor there and then referred to Bhagalpur Hospital. At the time of Mar-pit no body had come from his house but came later on. The mother had come but not the wives of the two brothers. He did not tell his mother about the occurrence as he was busy in removing his injured brother from the place. He could not say as to whether police examined the two Halwahas, namely, Dilo Singh and Munnilal. Later on Dilo Singh told him that the police had examined him and he could not say about MunniLal with whom he had no talk. Dilo Singh had died three years ago. He had got no case during revisional survey of the disputed land with the accused. It was incorrect to say that he never been in possession of the disputed land and that there was no kebala. 10. The other eye-witness (P.W. 1) is Bhuneshwar Marik who said that on the day of occurrence at about 8 A.M. he had gone to ease after sending the labourers (majdoors). While he was casing, he heard alarm and he went to the field of Motilal Yadav where he saw the appellants. The field was being ploughed by Dilo Singh and Munni Lal and victim - Raghuni was sowing the seeds. Accused - Bihuli Rai said as to why he (informant) was ploughing the field whereupon Raghuni Yadav said that he had purchased the land through the sale-deed. The field was being ploughed by Dilo Singh and Munni Lal and victim - Raghuni was sowing the seeds. Accused - Bihuli Rai said as to why he (informant) was ploughing the field whereupon Raghuni Yadav said that he had purchased the land through the sale-deed. Then Bhulhan Rai gave a lathi blow to the informant on the head and another blow was given by Mahabir on his back. Then Raghuni Yadav was assaulted by Sakali Rai by tangari on, the head on the right side and on getting the injury he fell down and the accused ran away. He and others took Raghuni and Motilal to their house and then they came to Boushi State Dispensary from where the doctor referred them to Bhagalpur Medical College Hospital where the victim died on account of the injury. The land of occurrence was earlier land of Bhullan Rai who had sold to Raghuni and Motilal through the registered deed which was being ploughed by them. In cross-examination he has said that the land was ancestral land of Bhulan Rai. Among the accused, who are relations, penition had been effected, for which paper was not written before him. He has no concern with land or family of the informant or the deceased. No paper about the land had been written before him. On the spot along with him had gone Gyani Mahto, Puran Mahto, Nageshwar Mahto, Yishun Mahto & Dhuro Mahto. When he had seen the parties at the spot he did not try to pacify them. The investigating officer examined him to whom he said that the land of the occurrence was being ploughed by the Halwahas of Motilal Yadav (informant) and the victim was sowing the seed. The mar-pit took place before him. He had not said to the I.O. that he came to know about the assault by the accused. The victim was assaulted by the reverse side of the tangari and his head was not cut but he was bleeding from his nose and ears. The blood had not fallen on the ground. He had not seen blood falling on his clothes. The dispute was about the land between the parties. He had not gone to dispensary or the Bhagalpur Hospital. He had said to the police that Mahabir had also given assault on the head of the informant. The blood had not fallen on the ground. He had not seen blood falling on his clothes. The dispute was about the land between the parties. He had not gone to dispensary or the Bhagalpur Hospital. He had said to the police that Mahabir had also given assault on the head of the informant. The place of occurrence is about 500 cubits from the village and at the time of occurrence no person of the village had gone. It was wrong to say that he was giving evidence on account of relationship. 11. P.W. 2 Gyani Mahaton, who earlier claimed to be eye witness, has later on said that he reached the spot after the occurrence. He says that at about 8 A.M. while he was returning from his Bahiyar to his house, he heard alarm and went to the field of Motilal Yadav where he saw the accused including Basanth Singh. The accused gave the assault. He did not observe as to who assaulted whom. In the field of Motilal Yadav Dilo Singh and Munni Manjhi were ploughing and Motilal and Raghuni were sowing the seeds. Then mar-pit started. Motilal and Raghuni were assaulted. Police had examined him to whom he had said that Motilal was assaulted by Bhullan Rai and Mahabir Singh by lath is. He has not said to the police that he had seen Sakali Rai assaulting the deceased on the head by tangari. The accused were armed with lathis and bhala. He had not seen tangari in the hand of any accused and he had not said to the police that he had seen tangari in the hand of Sakali Rai. After assault Raghuni had fallen on the ground and became unconscious. He had seen the mark of assault on the head of Raghuni Yadav. After the assault accused ran away. After occurrence he along with others took Raghuni Yadav and Motilal Yadav to their house. Raghuni was taken to Boushi State Dispensary from where he was taken to Sadar Hospital Bhagalpur. The field of occurrence belongs to Motilal who had purchased the same from Bhulhan Rai by sale-deed, and since then he was in possession. In crossexamination he has said that he had reached the place of occurrence when the mar-pit was over. Raghuni and Motilal were lying fallen on the ground. He had not seen mar-pit himself. The field of occurrence belongs to Motilal who had purchased the same from Bhulhan Rai by sale-deed, and since then he was in possession. In crossexamination he has said that he had reached the place of occurrence when the mar-pit was over. Raghuni and Motilal were lying fallen on the ground. He had not seen mar-pit himself. He had talk with the witnesses present there, namely, Chintamani, Dhilo Singh, Munni Lal (not examined) and others. He did not remember the name of other witnesses. Those who had reached the spot earlier than him were Muneshwar Mari, Puran, Nageshwar, Horo Mahton, Vishun Mahaton and others. Later on people collected there. He has said to the I.O. that at the time of occurrence he was returning from Bahiyar to his house and that Dhilo and Munni were ploughing the land of occurrence and Motilal and Raghuni were sowing the seeds. Moti and Raghuni had not got sale-deed before him and the land was the ancestral property of Sakali Rai and others and dispute between the parties was on account of land and the same had been taken from Bhullan Rai. He is not related to Raghuni but is of the same caste. Motilal and Raghuni had not given sale-deed amount before him to Bhullan Rai. 12. P.W. 3 Vishun Mahton says that on the day of occurrence at 7-8 A.M. he was going to the house of Gyani Harijan and on the way on hearing about the dispute went to the field of Motilal where he saw 20-22 people, out of whom he identified accused Sakali Rai, Ram Prasad Rai, Bihula Rai, Mahabir Singh, Durga Singh, Dip Singh, Kesho Singh, Guddi Mandal & Mahendra Tatawa. Accused Sakali Rai had a tangari, Ram Prasad Rai had a bhala and others had lath is, Dhilo and Munnilal had been ploughing the land and Raghuni and Motilal were sowing seeds. Bhullan asked to stop ploughing then Motilal and Raghuni said that they had purchased the land. Then Bhullan Rai gave a lathi blow on the head of the informant and the head was broken and he fell down. Mahabir Singh had also given a lathi blow on his back and Sakali Rai gave a tangari blow from the reverse side on the head of the deceased who fell down and blood started falling from mouth, nose and the ear and the accused fled away. Mahabir Singh had also given a lathi blow on his back and Sakali Rai gave a tangari blow from the reverse side on the head of the deceased who fell down and blood started falling from mouth, nose and the ear and the accused fled away. Raghuni had become unconscious. The people took the injured to the house where from they were taken to the Boushi Hospital and then the Bhagalpur Hospital where Raghuni died on account of injury. This occurrence had been even by Muneshwar Marik, Gyani Mahto, Puran Mahto and others. The land had been purchased by Raghuni Yadav about nine years ago and since then they were ploughing the same. Bhullan Rai, Ram Prasad Rai and Sakali Rai are separate since long. In cross-examination he has said that his tolla is about half a mile from Sanjha Ganthia. He has got no land in Sanjha Ganthia. He was examined by the I.O. after 10-12 days at the police station where he was taken by the Chaukidar. He had not gone along with the victim to the Boushi State Dispensary and Sadar Hospital Bhagalpur. Raghuni Yadav was aged 45 years. He had said to the La. that he was going to Ugan Harijan. At the time of occurrence Dhilo and Munnilal were ploughing the land and Motilal and Raghuni were sowing seeds. The place of occurrence is 20.22 cubits away from the way. Mar-pit had started after he reached the spot. Bata-bati was going on. Sakali Rai was saying that he would not allow to plough the land and Motilal and Raghuni were in possession of the land since long. The sale deed of the land had not been executed before him nor sale amount was paid before him. He has got no concern with the matters of the informant of the deceased. He is also Yadav by caste as is Motilal. 13. P.W.4 is Nuro Mahto who has said that on the day of occurrence at about 8 A.M. he was grazing his buffaloes when he heard alarm and went to the spot in the field of Raghuni Yadav where he saw about 20 people including the appellants. Out of whom Sakali Rai had tangari, Ram Prasad had got bhala and others had lath is. Raghuni and Motilal were sowing seeds. Out of whom Sakali Rai had tangari, Ram Prasad had got bhala and others had lath is. Raghuni and Motilal were sowing seeds. Bhullan Rai enquired as to why he was sowing seeds whereupon Motilal said that the field belonged to him and so he was ploughing. Upon this appellant Bhullan gave a lathi blow on the head of Motilal and Mahabir also gave a lathi blow. On receiving the injury Motilal fell down. The appellant Sakali Rai gave tangi blow from the reverse side on the head of Raghuni and on getting the injury he fell down and became unconscious. Then the accused ran away from the spot. From the place of occurrence Raghuni was taken to his house where form he was taken to State Dispensary Boushi w here he was given medical aid and then he was sent to Medical College Hospital Bhagalpur where he died. For the above land Motilal had got a saledeed from accused Bihula Rai about nine years ago and since then Motilal and Raghuni were in possession. Ram Prasad Rai, Sakali Rai and Bhullan Rai were separate since the witnesses got senses. Bhullan Rai and Bihula Rai lived together. Accused Mahabir Singh had died. In cross-examination he had said that Kishuni Mahto of tolla of the witness, was present on the spot. He has got no knowledge if partition had been effected between the accused. He does not know about the land of the accused. He has got no concern with the matters of the parties. The sale deed was not effected in his presence and sale amount was not given in his presence. At the time of occurrence there were 20 persons. After the occurrence Raghunis mother and other women had come. He was grazing the buffaloes since 8 A.M. at a distance of about 3 Jarib from the place of occurrence. At the time of mar-pit the accused had not caught hold of the bullocks. Mar-pit had not taken effect for taking possession but the informant party was ploughing and the accused party went there to stop them. He had seen the accused party always ploughing the land but after the sale-deed the informant party had started ploughing the same. He did not remember the year and month of the sale-deed. The area of the land is about 5 Kathas. He had seen the accused party always ploughing the land but after the sale-deed the informant party had started ploughing the same. He did not remember the year and month of the sale-deed. The area of the land is about 5 Kathas. Persons ploughing the land did not save the victim of the mar-pit. On getting the injury Motilals head was broken a little and blood had fallen. Raghunis head was not broken. Tangaris reverse side was 3-4 fingers wide. He and others did not try to intervene. He was examined after 23 days of the occurrence and he had told the I.O. that he was grazing the buffaloes. He had gone to Boushi and Bhagalpur along with Raghuni. Motilals statement was recorded by the police at Boushi Hospital. At the time of recording statement of Motilal he had gone to take medicine. Motilal and Raghuni never used to visit his house and he had got no relationship with them although he is of their caste. 14. P.W. 5 Puran Yadav also said that he was returning from the Bahiyar to his house when on the way he heard alarm and went to the field of Motilal where he found the accused. He did not remember as to who was having which weapon, but some had lathis. Bhullan gave lathi blow to Motifal who geuing on injury fell down. He saw decreased Raghuni Yadav lying dead and he was bleeding from his nose, Arter the assault the accused ran away. Deceased Raghuni Yadav was taken to his house by him, Hurro Mahto, Vishu Mahto, Nageshwar Mahto, Gyani Yadav and Muneshwar Marik where from he was taken to Boushi State Dispensary and when on the advice of the doctor from there the victim was taken to Bhagalpur Medical College Hospital who died in the hospital. On the day of occurrence Motilal Yadav and Raghuni Yadav were sowing seeds and the two ploughmen Dilo Singh and Munni Lal were ploughing the land. The said land had been purchased by Motilal Yadav from Bhullan Rai, Bihula Rai, Kharia Devi and Bhikhan Devi the two ladies king the sisters of Bhullan Rai. About nine years back after the deed Motilal was in prosecution or the land. Ram Prasad Rai and Skali Rai are separate. The said land had been purchased by Motilal Yadav from Bhullan Rai, Bihula Rai, Kharia Devi and Bhikhan Devi the two ladies king the sisters of Bhullan Rai. About nine years back after the deed Motilal was in prosecution or the land. Ram Prasad Rai and Skali Rai are separate. Sakali Rai had sold land to many persons including Moti lal, Rameshwar Mandai, Sabharan Mandal, Sona Mandai & others and the purchasers arc in possession of the land He did not remember if the I.O. had examined him in this cast. He did not remember if he had stated to the police that Sakali Rai having tangi from which backside he hit on the head of Raghuni and so Raghuni had fallen had become unconscious. In cross-examination he said that he had not seen the sale-deeds nor he has any concern with the same. Motilal had not got any sale-deed before him and he has got no concern with his cultivation and family. At the time of occurrence he was returning from Bahryar towards west and when he was 50-60 cubits from the place of occurrence he heard the alarm lie had seen about 18-19 persons on the spot. No accused was catching hold of f fat nor they separated the bullocks from the flat. The assault started after he reached the spot. Then he said that the dispute was going on earlier and he could see only accused Bhulan Rai assaulting Motilal Yadav with lathi on his head which was broken and blood had been smeared his clothes. Witnesses came of the spot. Before his arrival no witness had come, Along with him Muneshwar Marik Huro Mahton Yadav Nageshwar had reached the spot and none of them snatched the lathi from the accused. He did not go to Boushi or Bhagalpur with the injured. He did not remember if he had said to the I.O. that on the day of occurrence the victim and the informant were ploughing the land and also two Halwahas Dhilo Singh and Munnilal were ploughing the same. Before the sale-deed the land was ancestral land of Bhullan Rai. In his village revisional survey had taken place and he had got no case against Sakali Rai. The deceased and the informant are real brothers with whom he had got no relationship. None of the purchasers had paid any sale amount before him. Before the sale-deed the land was ancestral land of Bhullan Rai. In his village revisional survey had taken place and he had got no case against Sakali Rai. The deceased and the informant are real brothers with whom he had got no relationship. None of the purchasers had paid any sale amount before him. He had got no personal knowledge about the sale-deed of Motilal. On the day of occurrence he had no talk with witnesses. It was wrong to say that he had not paid sale amount of the land which he had taken from Bhullan Rai and also that he had not got possession and so he falsely deposed against him. 15. After evidence of these witnesses about the possession of the land by the informant and the deceased and also about the occurrence of assault and killing, the prosecution had examined P.Ws. 7,8,10 and 11 namely, Shyama Kant Jha, Nakuldeo Jha, Sarayu Yadav and Rashu Marik to prove various documents and the rent receipts. P.W. 7 Shyama Kant Jha has said that on 24.9.1976 Bhullan Rai, Bihula Rai, Kharia Devi and others had executed sale-deed in his presence to Motilal. It was read over and explained to Bhullan Rai, Bihula Rai and Kharia Devi and then they had fixed their left thumb impression. Bangali Rai had written the sale-deed (Ext. 2). These witnesses had also proved EX s. 2/1 dated 14.9.1981,2/2 dated 24.1.1984, 213 dated 20.7.1979, 2/4 dated 22.9.1985,2/5 dated 14.6.1974 and 2/6 dated 17.7.1973 which arc said to have been executed in his presence by the persons concerned and the same had been read over to the executants of the deeds and the executants after finding the same as correct had put their left thumb impressions and their signature were arrested by Bangali Rai in most of the case and they were written by Vijay Kant Jha. In cross-examination he has said that the writers of the sale deeds are alive. No talk of the sale or purchase was held in his presence and no sale amount was paid in his presence. He has got no personal knowledge about the land. 16. P.W. 8-Nakuldeo Jha had also proved Ext. 217 dated 9.10.1975, Ext. 2/9 dated 5.12.1972 & Ext. No talk of the sale or purchase was held in his presence and no sale amount was paid in his presence. He has got no personal knowledge about the land. 16. P.W. 8-Nakuldeo Jha had also proved Ext. 217 dated 9.10.1975, Ext. 2/9 dated 5.12.1972 & Ext. 2/11 dated 31.2.1976 which are said to have been executed by the executed by before him who had put their signatures on the sale-deeds after the contents were read which they had understood. In crossexamination he said that he had read upto 10th class and he was doing deed writing since 1956-57. No talk about sale deed had been held about his presence nor any sale amount had been given in his presence and so he has got no personal knowledge. Besides these two witnesses, there are two more witnesses, namely, Saryu Yadav (P.W. 10) and P.W. 11 Rashu Marik. P.W. 10 is said to have proved rent receipts Exts. 4 to 4/9 which, arc said to have been issued under the signature of Parmshwar Yadav whose signature he has identified. Parmeshver Yadav was Gram Sevak of Bishunpur Gram Panchayat. In cross-examination he has said that Parmeshwar Yadav is still alive. The receipts were written before him P.W. 11 Rashu Marik has proved the rent receipt (Ext, 4/10) which is said to have been written and signed by Parmeshwar Yadav, Gram Sewal of Brishunpur Gram Panchayat whose written is also alive and the and the rent receipt had not been written in his presence. He also admitted that his father is a witness in the case and that he had not worked with Parmeshwar Yadav. 17. Besides these P.Ws. 12 Srideo Mandal had medically examined the injured Raghuni Yadav who died later on, on 3.7.1978 at 11.40 A.M. and he found the two injuries: Lacerated wound 1/4" x 1/4;" on the right side of hand. Swelling 3" x 3" on the right side of the head. The injured was unconscious due to injury and bleeding had occurred from the mouth, nose and ear due to injury on the internal part of the head. Both injuries were caused by hard blunt substance, may be blunt portion of tangi within eight hours of the examination. He also examined Motilal Yadav at ll.55 A.M. and found one lacerated wound 2"x 1/4" x scalp deep on the back of the head. Both injuries were caused by hard blunt substance, may be blunt portion of tangi within eight hours of the examination. He also examined Motilal Yadav at ll.55 A.M. and found one lacerated wound 2"x 1/4" x scalp deep on the back of the head. It was simple in nature, caused hard blunt substance which may be a la/hi. Both the injuries marked Exts. 5/1 and 5 respectively. Raghuni Yadav was referred to Bhagalpur Medical College Hospital for treatment. 18. P.W. 9 Dr. Haider Imam Ansari conducted the post mortem examination of Raghuni Yadav on 4.7.1978 and found one lacerated wound over head on right parietal region 1" x 1/2 x bone deep with swelling around it in 2" diameter. On opening the scalp the underlined soft tissued, he found contusion corresponding to injury No.1, viz lacerated wound and having blood clot underneath, the skin and above the bone in right parietal & temporal region. After cutting the cap a long extramural clot was found on the right cerebral heausphere in right temporal and parietal area of brain. The injuries was caused by hard and blunt weapon may be the blunt portion of tangi. There was nothing in the postmortem report, as to whether any first aid was given to the victim before his death and it was not possible to give dimension or weapon causing the above lacerated wound to the victim. 19. P.W. 13 Dinesh Kumar Yadav has proved Ext. 6 being the injury report written by Pradip Kumar. 20. P. W. 14 Md. Sakur has proved Ext. 7 the fard-beyan of Motilal Yadav which was written by the police-officer A.K. Sinha (P.W. (5): 21. P.W. 15 is Investigating Officer Anjani Kumar Sinha who recorded the fard-bcyan (Ext. 7) on 3.7.1978 at 1.30P.M. and on the basis of that First Information Report (Ext. 8) was registered on 3.7.1978. then he went to the place of occurrence on 4.7.1978 and examined the witnesses. On the same day he got information that Raghuni Yadav had died in the Medical College Hospital Bhagalpur. He also obtained injury report of Motilal and Raghuni from Boushi Hospital. He got the post mortem report of Raghuni on 5.7.1978. He examined witness Muneshwar Marit and Huro Mahaton on 6.7.1978 and on 15.7.1978 examined witnesses Visho Mahalon and Gyani Mahaton. The case was supervised by the A.S.P on 23.8.1978 and then the La. submitted Chargesheet on 30.9.1978. He also obtained injury report of Motilal and Raghuni from Boushi Hospital. He got the post mortem report of Raghuni on 5.7.1978. He examined witness Muneshwar Marit and Huro Mahaton on 6.7.1978 and on 15.7.1978 examined witnesses Visho Mahalon and Gyani Mahaton. The case was supervised by the A.S.P on 23.8.1978 and then the La. submitted Chargesheet on 30.9.1978. In the crossexamination he said that the informant party had shown the papers about the land to him. He found blood mark on the spot but he had not written in the case diary about the same. He had not prepared sketch map. Muneshwar Marik had not said to him that Motilal and Raghuni were sowing seed in the field of the accused Sakali Rai. 22. Thus from all this evidence it is clear that plot in issue had been purchased by informant Motilal and deceased Raghuni Yadav vide saledeed (Ext. 2) dated 24.9.1976 from Bhulan Rai, Bihula Rai, Kharia Devi and Bhikhari Devi and since then they had been in possession and cultivating the said lands. Even on the day of occurrence when they were sowing the crops and ploughing the land then Bhullan went there and asked as to why they were ploughing to which they replied that they had purchased the land and so Bhullan Rai gave a lathi blow on the head of the informant Motilal Yadav and Mahabir Singh gave lathi blow on his back and then Sakali Rai gave a tangi blow from its backside to Raghuni Yadav, who on getting injury, fell down and became unconscious. The victim were taken to the hospital where They were examined by Dr. Srideo Mandal (P.W. 12) and Raghuni Yadav was referred Lo Bhagalpur Medical College Hospital where he died and then post mortem examination was done. Thus it appears that the informant and the deceased were in lawful possession of the land in dispute and the accused had got no right, title or interest in The same. The trend of cross-examination shows That there was no sale-deed and no sale amount had been paid. But the evidence of the witnesses and the sale-deed (Ext. 2) shows that the sale-deed had been executed. Nothing has come out to show that the sale amount had not been paid. The trend of cross-examination shows That there was no sale-deed and no sale amount had been paid. But the evidence of the witnesses and the sale-deed (Ext. 2) shows that the sale-deed had been executed. Nothing has come out to show that the sale amount had not been paid. The witnesses have been subjected to cross-examination who have said that no amount had been paid before them which does not go to show that the sale amount had not been paid at all. When the sale deed is executed the amount of sale is paid either before the sale-deed or paid at the time of execution, or if the payment is to be paid later on, then for that mention is made in the saledeed. Nothing is there to show that there was any contemplation that the sale-amount would be paid later on. As such it cannot be said that the amount of sale had not been paid. Further the sale deed is said to have been executed on 24.9.1976 and the same had taken place on 3.7.1978. If the amount of sale had not been paid then the accused party should have taken any step for the realisation of the same which does not appear to have been done. Even the rent receipts had been filed in respect of the land in dispute. Further there is no dispute about the identity of the plots in the sale-deed. For these reasons it appears that the appellants had got no right, interest or title in the land for which they have no right of self defence. 23. On consideration and evaluation of the evidence it is manifest that the informant is the injured himself and his presence on the spot cannot be disputed. He has withstood the test of crossexamination and there is nothing to show that his evidence does not inspire confidence. Muneshwar Marik is witness in the First Information Report. He had gone to the spot on alarm. His evidence also appears to be natural because one can be attracted on hearing alarm. He had gone to ease and so he was attracted by the alarm. His presence on this score became natural. Nothing has come out to show that he was interested to falsely implicate the appellants or was interested for the prosecution party. His evidence also appears to be natural because one can be attracted on hearing alarm. He had gone to ease and so he was attracted by the alarm. His presence on this score became natural. Nothing has come out to show that he was interested to falsely implicate the appellants or was interested for the prosecution party. Similar statement is of the Visa Mahato who was attracted to the spot and had seen the occurrence. He too is independent having no animosity with the accused or concern with the matters of the deceased. He was also attracted while going to the house of Ugani Harijan. Nothing has come out to show that his evidence has suffered from any infirmity or improperty. P.W. 4 Huro Mahato is said to have been grazing the buffaloes and had gone to the spot on alarm and seen the victims sowing and the land being ploughed. He has given out about the assault by The appellants Bhullan Rai, Mahabir Singh and then Sakali Rai. He too gives out the vivid description of the entire matter and has withstood the test of cross-examination. Nothing has come out to show that his evidence does not inspire confidence. These evidence fully support the case of the prosecution. The next witness, namely. P.W. 2 Gyani Mahaton is said to have reached the spot after the occurrence but he could not observe as to who assaulted, who. But he is certain about the accused person being there on the spot and assault being made to the two persons. So even if he is not an eye witness, yet he is person who reached the spot immediately after the occurrence and saw the presence of the accused and the condition of the injured P.W. 5 also is one of the witnesses who also reached the spot and he says only about the assault by Bhullan Rai and found the victim lying. He further says about the presence of the accused and also the informant and the deceased. Even if these two witnesses (P.Ws. 2 and 5) on the question of actual mar-pit may not be considered, yet the evidence of P.Ws. 6,1,4 & 4 is there, which fully corroborates the prosecution version. About Mahabir Singh, the evidence of P.W. 4 is there who has said in paragraph No. 6 that Mahabir Singh had already died. Even if these two witnesses (P.Ws. 2 and 5) on the question of actual mar-pit may not be considered, yet the evidence of P.Ws. 6,1,4 & 4 is there, which fully corroborates the prosecution version. About Mahabir Singh, the evidence of P.W. 4 is there who has said in paragraph No. 6 that Mahabir Singh had already died. Even if he has not been charge-sheeted, it does not have any effect. 24. As regards the contention of the learned counsel for the appellants that there was no intention to kill but to cause injuries and that is why there was use of the blunt side of the weapon and there was no repetition of the blow and that the occurrence had taken place in the heat of passion and so they are not liable to be convicted under Sec. 302, I.P.C. Reliance has been placed on the decision in Hari Ram V/s. State of Haryana, where in it has been said in paragraph No. 3: "The only contention of learned counsel for the appellant before us is that the facts do not make out an offence under Sec. 302 against the appellant and that a conviction under the second part of S. 304 is called for instead. We agree with learned counsel. It does seem that in the heat of the alteration between Ram Singh on the one hand and the appellant and his comrades on the other, the appellant seized jelli and thrust it into the chest of Ram Singh. It will be noted that this was preceded by his remark that Ram Singh must be beaten to make him behave. Only one blow was struck by the appellant at Ram Singh. On the evidence it does not appear that there was any intention to kill Ram Singh. We are, therefore, satisfied that the conviction under S. 302 cannot be sustained and that, on the contrary, the facts make out an offence under the second part of Sec. 304." 25. Only one blow was struck by the appellant at Ram Singh. On the evidence it does not appear that there was any intention to kill Ram Singh. We are, therefore, satisfied that the conviction under S. 302 cannot be sustained and that, on the contrary, the facts make out an offence under the second part of Sec. 304." 25. Learned Counsel for the State on the other hand referred to the decision in the case of Jai Prakash v. State (Delhi Admn)2, wherein it has been said at page 306 in para 10: "In our view it is fallacious to contend that when death is caused by a single blow Clause Thirdly is not attracted and therefore it would not amount to murder" In this case of Jaiprakash (supra) the deceased was marked to P.W. 3 and the appellant was married to the cousin of P.W. 3 and so he used to visit the house of the deceased ostensibly as a relative which was objected by the deceased as well as P.Ws. 1, 2 and 5 mother and two brothers of the deceased. On the day of occurrence when the deceased was not in the house, the appellant came. A few minutes later the deceased came and objected to the presence of the appellant and so there was altercation and an exchange of hot words and so the appellant took out a kirpan and stabbed the deceased in his chest. The deceased fell down crying that the appellant had killed: The incidence was witnessed by P.W. 2, the brother from his roof where he retired for sleep during the night. Both the brothers of the deceased chased the appellant who was armed with lethal weapon and threatened and made good his escape. And so it appears that one single blow had been given. In support of his contention that one single blow had been given the learned counsel in that case had referred to the following decisions of the Supreme Court Tholan V/s. State of Tamil Nadu, Jagrup Singh V/s. State of Haryana, Randhir Singh v. State of Punjab, Kulwant Rai V/s. State of Punjab, Hari Ram V/s. State of Haryana, Jagtar Singh V/s. State of Punjab, Ram Sunder V/s. State of U.P.. Relying upon these decisions it was contended that there was altercation and during the same the appellant suddenly whipped out a Kirpan and inflicted only one injury and it is therefore reasonable to infer that he would not have intended to cause that particular injury and consequently clause Thirdly of Sec. 300, I.P.C. is not attracted. Their Lordships of the Supreme Court observed at page 306-S.C.C. (Cri.) para 9 & 10 us follows: (9) "The submission though put forward in a simple way leads to an important legal quandry regarding the interpretation of Clause Third of Sec. 300, I.P.C., which is considered to be a difficult and intricate issue by the courts. However, Virsa Singh V/s. State of Punjab, is considered to be an authoritative pronouncement in this regard. But perhaps inspired by some of the decisions rendered, thereafter both by the High Court and the Supreme Court there is a marked change in the trend of the contentions regarding the scope of clause Thirdly of Sec. 300, I.P.C. It has reached a stage of oversimplification and it is very often argued that whenever death is due to a single blow the offence would be culpable homicide and not murder. Somewhat to the same effect is the contention in the instant case. (10) In our view it is fallacious to contend that when death is caused by u single blow clause Thirdly is not attracted and therefore it would not amount to murder. The ingredient Intention in that clause is very important and that gives the clue in a given case whether offence involved is murder or not. For the purpose of considering the scope of Clause Thirdly it is not necessary for us to embark upon an examination of the entire scope of Secs. 299 and 300, I.P.C. It is enough if we start with Virsa Singhs case. Clause Thirdly of Sec. 300, I.P.C. read thus: - "3rdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-". In paragraph 11 their Lordships discussing the case of Virsa Singh observed at page 307 (SCC (Cr.) as follows: First, it must establish, quite objectively that a bodily injury is present; Secondly, the nature of the injury must be proved: These are purely objective investigations. In paragraph 11 their Lordships discussing the case of Virsa Singh observed at page 307 (SCC (Cr.) as follows: First, it must establish, quite objectively that a bodily injury is present; Secondly, the nature of the injury must be proved: These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that it is to say, that it was not accidental or unitentional, or that some other kind of injury was intended. Once these three Clements are proved to be present, the inquiry proceeds further, and Fourthly, it must be proved that the injury of the type just described made up of the three clements set out above is sufficient to cause death in the ordinary course or nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." Their Lordships again referred to the paragraphs Nos. 12, 13, 15, 16 and 17 of the decision of Virsa Singh at pages 1501, 1502, 1503 and 1504 (S.C.R.) and observed in paragraphs 12/14, 15 to 18 at pages 308, 311 to 312 to 314 S.C.C. (Cri.) (12) Referring to these observations, Division Bench of this court in Jagrup case, observed thus, These observations of Vivian Bose, J have become lacus classious. The test laid down in Virsa Singhs case for the applicability 01 Clause Thirdly is now ingrained in our legal system and has become part of the rule of law. (14). The decision in Virsa Singh had throughout been followed in a number of cases by the High Courts as well as the Supreme Court such decisions are too numerous and it may not be neccessary for us to refer to all those decisions. However, it will be useful to refer to a few decisions which have bearing to the point in issue. Their Lordships referred to the following decisions. Chahat Khan V/s. State of Haryana, Chamru Budhwa V/s. State of MP.12, Willie (Witliam) Slaney V/s. State of MP.13, Harjunder Singh (alias Jindal) V/s. Delhi Admn.14, Laxman Kalu Nikalje V/s. State of Maharashtra. However, it will be useful to refer to a few decisions which have bearing to the point in issue. Their Lordships referred to the following decisions. Chahat Khan V/s. State of Haryana, Chamru Budhwa V/s. State of MP.12, Willie (Witliam) Slaney V/s. State of MP.13, Harjunder Singh (alias Jindal) V/s. Delhi Admn.14, Laxman Kalu Nikalje V/s. State of Maharashtra. "(15) In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not and it is held that circumstances like sudden quarrel in a fight or when the deceased intervenes in such a fight would create a doubt about the ingredient of intention as it cannot definitely be said in such circumstances that the accused aimed the blow at a particular part of the body. When an accused inflicts a blow with a deadly weapon the presumption is that he intended to inflict that injury but there may be circumstances like those, as mentioned above, which result such presumption and throw a doubt about the application of Clause Thirdly. Of course much depends on the facts and circumstances of each case. Now let us exam in some of the cases relied upon by the learned counsel for the appellant." Their Lordships referred to the decision in the case of Kulwant Rai (supra), Randhir Singh, (supra), Gurmail Singh V/s. State of Punjab, lag.. tar Singh (supra) and Tholan case (supra). (18) In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death. The Supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc. mentioned above only to assess the suite of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result. It is held in all these cases that there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e. only had knowledge or the consequences. It is held in all these cases that there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e. only had knowledge or the consequences. These circumstances under which the appellant happened to it is felt or at least a doubt arose that all his mental faculties could not have been roused as lo form an intention to achieve the particular result, we may point out that we arc not concerned with the intention to cause death in which case it will be a murder simplicitor unless exception is attracted. We arc concerned under Clause Thirdly with the intention to cause that particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, Clause Thirdly is attracted and it would be murder unless one of the exceptions to Sec. 300 is attracted. If on the other held this ingredient of intention is not established or in a reasonable doubt arises in this regard then only it would be reasonable to infer that Clause Thirdly is not attracted and that the accused must be attributed knowledge that in indicting the injury he was likely 1.0 cause death in which case it will be culpable punishable under Sec. 304 Part II I.P.C. 26. Thus from this it is clear that the intention is to be seen as to whether the particular injury was intended to be given and that particular injury is sufficient in ordinary course of nature to cause death, then Clause Thirdly is attracted, unless one of the exceptions to Sec. 300 is attracted. But if the intention is not established or a reasonable doubt arises then Clause Thirdly is not attracted and knowledge may be attributed to the accused. In the instant case it has been well established on the appreciation of evidence that the appellants had got no right, title or interest in the land at the relevant time and that they had gone on a supposed right, armed with the weapons to dispossess the victim who were unarmed and ploughing the land in exercise of their legal right and they were actually in possession of the land. The informant party was not armed with any weapon. The informant party was not armed with any weapon. The informant and the deceased were sowing seeds. The Halwahas had got only small sticks for driving the bullocks and they too did not use the same. Further the witnesses, who reached there, also did not use any weapon nor they were armed with nor they tried to save the victims from the assaults of the accused. Further the two injured or anyone from their side had not used any abusive or provocative language to cause provocation to the accused party and only a simple reply was given that they had purchased the land and so they were ploughing the same and upon this non abusive and non provocation reply Bhullan Rai and then Mahabir Singh assaulted the informant and immediately thereafter Sakali Rai gave tangi blow to the deceased. Thus it appears that the accused had come with intention to assault and cause injury if the informant party did not yield to their forcible dictates and pressure. Then they started the assault. Lathi blows and not bhala blows were given by the lathiwalas. Then Tangi blow was given by the accused but not from the sharp side but from the blunt side. It goes to show that the intention of causing the blow from the tangi was not to cause death otherwise appellant Sakali Rai would have used the sharp side of the tangi. After this assault by the aforesaid three persons none else amongst the appellants used the weapon in their hands including bhala and lathis and on arrival of the witnesses they made good their escape. So the intention of the appellants was to cause assault and not to cause death. When the intention to cause death was not there then the intention to cause bodily injury which has resulted into death has been there and knowledge was to Sakali Rai that he had given the blow on the head of the deceased which was likely to cause death. In the circumstances Sakali Rai can be said to have committed culpable homicide not amounting to murder and so offence committed by him brings him under the clutches of Sec. 304, Part II of I.P.C. 27. As regards the other appellants 1 to 8 in Cr. Appeal No. 90/89 they had also come armed with weapons like lath is and bhalas. They were members of the unlawful assembly. As regards the other appellants 1 to 8 in Cr. Appeal No. 90/89 they had also come armed with weapons like lath is and bhalas. They were members of the unlawful assembly. They had got no right to the land though they might have supposed to have formed an unlawful assembly with the object to dispossess of the informant and the deceased and in so doing they came with the object of using forces and one of the members Sakali Rai caused injury to Raghuni Yadav which proved fatal. So their intention was to cause even grievous hurt and which was actually done. When the victim was unarmed and he was given grievous hurt on the head, the other appellants did not ask appellant Sakali Rai to desist from giving deadly blow and causing grievous injury. They came together, participated in the occurrence and remained there till the finale and went back together. In these circumstances sharing of the common object of unlawful assembly and causing grievous injury by a deadly weapon like tangi is well made out. So these appellants are also liable for conviction u/s. 326 read with sec. 149 I.P.C. 28. In the result, the conviction and sentence of appellant Sakali Rai are altered from 302 I.P.C. and rigorous imprisonment for life to one u/s. 304 part - 1 and to a sentence of ten years rigorous imprisonment. The conviction and sentence of appellant Nos. 1 to 8 of Cr. Appeal No. 90/89 arc also altered from 302/149 I.P.C. and sentenced to rigorous imprisonment of life to u/s. 326 I.P.C. read with sec. 149 I.P.C. and sentence to rigorous imprisonment of five years. With the aforesaid modification in the conviction and sentence both the appeals, namely Cr. Appeal No. 901 89 and 144 of 1989 are dismissed.