J. C. MISRA, J. The appellants Mukhtiar, Bholu, Abbas, Qayyum and Bhura were convicted by learned 1st Additional District Sessions Judge, Moradabad uuder Section 302/149, IPC and sentenced to undergo imprison ment for life. Accused Mukhtiar, Bholu and Abbas were further convicted and sentenced to- undergo rigorous imprisonment for two years under Sec tion 148, IPC. The accused Qayyum and Bhura were convicted under Section 147, IPC and sentenced to undergo rigorous imprisonment for one year. All these sentences awarded to the accused persons were directed to run concurrently. 2. The incident, resulting in the death of Abdul Wahid, occurred on 1st October, 1989 at about 8. 00 a. m. The prosecution case is that the deceased Abdul Wahid was going on a dunlop cart to village Bhahapur for taking chaff. His wife Tehsilan, PW 1 and daughter Saira were also accompanying the deceased on the same cart. As soon as the cart reached near the grove of Bhura the accused Mukhtiar, Bholu and Abbas armed with spears and Qayyum and Bhura carrying lathis came out from the adjacent bajra field, where they were way laying caught hold of the deceased, pulted him down from the cart and started assaulting with the weapons held by them. The informant and her daughter Saira and also the deceased raised an alaram, thereby attracting Abdul Wahid, S/o Wilayat Hussain (not examined) Jumma (PW 2), Mushtaq (PW 3) Ishaque Iqbal and others, who challenged the assailants, who left the deceased and escaped in adjacent fields. The deceased had sustained severe spear and lathi injuries, He was laid on the dunlop cart. The informant also accompanied him. On the way Abdul Wahid succumbed to his injuries in village Teewra Khas. Leaving the dead body in the cart, under the supervision of her daughter and villagers that informant Tehsilan proceeded to the Police Station Belari, where on her dictation, the then Head Constable Clerk Harpal Singh, wrote chik report and registered the case vide G. D. report No. 18 an extract of which is exhibit ka-2. 3. The investigation of the case was taken over by Sub-Inspector R. S. Tomar (PW 7) who interrogated the informant ac the Police Station, proceeded to village Teewara Khas, where the dead body was found on a cot kept on the cart. 3. The investigation of the case was taken over by Sub-Inspector R. S. Tomar (PW 7) who interrogated the informant ac the Police Station, proceeded to village Teewara Khas, where the dead body was found on a cot kept on the cart. The Investigating Officer held inquest on the dead body, prepared inquest report and other papers and sent the dead body for post mortem examination. He then proceed the spot inspected the site and prepared its plan. Exhit-11. He took samples of blood stains and plain earth kept them in separate containers. He also took blood stained leaves of bajra into his custody and prepared memo Exhibit Ka. 3. He also Interrogated the witnesses. 4. The post mortem examination was conducted by Dr. S. C. Gupta (PW 8), who found the following injuries on the dead body and noted them in the post mortem report, Exhibit Ka-14: External Examination 1. Muscularity, stoutness, ecamciation,. . rigor mortis decomposition. Average built, rigor mortis present both extremeties eye are closed. 2. Sign of unknown person 3. Body. . N. A. D. 4. Natural orifices, auus,. . N. A. D. urethra, vagina 5. Incised wounds. . Ante mortem Injuries (1) Incised wound 2. 5 cm X 1 cm X bone on Lt. side head 10 cm above left ear. (2) Incised wound 4 cm X 1 cm X bone 9 cm behind Injuries No. 1 on Lt. side head. (3) Incised wound 3 cm X 1. 5 cm X bone deep 12 cms above Rt. side head. (4) Lacerated wound three in no in area of 11 cm x 4 cm x 1 cm on back of Lt. upper arm underlying bone having communicated fracture, (5) Incised wound 2 cm x 1 cm on Lt. side abdomen at midaxillary line 12 cm below and away to umblicus. (6) Lacerated wound twice in no in area of 10 cm x 6 cm on front and middile of Lt. lower leg underlying both bones fractured, (7) Abraded contusion 1 cm x 1 cum on front of Rts knee lower part. (8) Abraded contusion 2 cm x 1 cm front of Rt. leg middle 5 cm below Injuries No. 7. (9) Incised wound 1 cm x 0. 5 cm x muscle on dorsum of Rt. hand at the root of Rt. middle fingre. 5. (8) Abraded contusion 2 cm x 1 cm front of Rt. leg middle 5 cm below Injuries No. 7. (9) Incised wound 1 cm x 0. 5 cm x muscle on dorsum of Rt. hand at the root of Rt. middle fingre. 5. On internal examination the doctor found III, IV, V and VI ribs of the left side fractured, pleura and liver ruptured and lungs and upper part of peretonium congested. 6. After observing other formalities of investigation the Investigat ing Officer submitted charge-sheet against the accused. 7. To prove its case the prosecution examined the informant Smt. Tehsilan (PW 1) eye-witnesses Jumma (PW 2), Mushtiaq (PW 3) besides formal witnesses. The Head Constable Clerk Harpal Singh (PW 4), Con stable Tej Pal (PW 5), who had carried the dead body and produced it along with other police papers for post mortem examination. Abrar Hussain (PW 6) who was witness of memo exhibit K. a-3 Investigating Officer Sub-Inspector R. S. Tomar (PW 7) and Dr. S. C. Gupta (PW 8) who had con ducted autopsy. 8. The appellants in their statement under Section 313, Cr. P. C. denied the charge and attributed their false implications due to enmity. 9. In defence the appellants examined Constable Prem Singh, who produced case diary of the case in Crime No. 414 of 1971 under Section 363/366, IPC, Police Station, Mainther. He stated that Sub- Inspector Zahid Hussain had recorded the statements of Wahid Hussain, Tehsilan and Kumari Zohra in the case diary. The learned Additional District and Sessions Judge scrutinized the evidence on record and held that the prosecu tion succeeded in proving its case to the hilt. He accordingly convicted the accused and sentenced them as aforesaid. Felt aggrived they preferred this appeal. 10. We have heard the learned counsel for the appellants Sri P. S. Misra and learned Additional Government Advocate Sri R. C. Deepak. The learned counsel for the appellants contended that the eye- witnesses examined by the prosecution were not present at the time of the incident and as none had seen the occurrence, the appellants were implicated on suspicion. He carried us through the statements of the informant Smt. Tehsilan, Jumma and Mushtiaq. 11. They were subjected to a very lengthy cross-examination but nothing could be done elicited in the cross-examination to discredit their testimony. The presence of the informant was natural probable. He carried us through the statements of the informant Smt. Tehsilan, Jumma and Mushtiaq. 11. They were subjected to a very lengthy cross-examination but nothing could be done elicited in the cross-examination to discredit their testimony. The presence of the informant was natural probable. The deceased was going on the dunlop cart for taking chaff. The deceased must have taken his wife and daughter to help him in loading the chaff in the cart. It is true that the witnesses are interested but on account of this fact their evidence, cannot be discarded. Even on careful and strict scrutiny their statements inspire confidence. 12. The learned counsel for the appellant contended that the accused had some more enemies and they could have committed the crime. We do not find any force in this argument. The occular evidence is reliable and trustworthy. The witness have proved that it were the accused, who had committed the crime. Their testimony cannot be discarded on the ground that some more persons and enemity against the deceased. Morever the case under Section 363/366, IPC had taken place in the year 1971. The incidant in which Abdul Wahid lost his life took place in the year 1979. There is nothing on the record to show that the accused of that case had any motive to commit the murder, after a period of eight years, more so when it could not be shown that the accused in said case were convicted. 13. The occular evidence is corroborated by a promptly lodged FIR and medical evidence. We have no doubt that the incident had taken place in manner and fashion, as alleged by the prosecution. 14. The learned counsel for the appellants contended that the appel lants had no motive to commit murder of the deceased and from the nature and location of the injuries, it can utmost the held that they had intention to cause griavious injuries to the deceased. 15. The learned additional Government Advocate contended that the appellants had motive to commit the murder of Abdul Wahid and they caused serious injuries to the deceased, including fractures of ribs bones of right leg and left upper arm and the inevitable inference that can be drawn is that all the apppellants armed with lethal weapons had caused injuries with intention to commit muder, after forming an unlawful assembly. 16. 16. The motive behind the crime was construction of a wall by the deceased on the raasta leading to graveyard. It is alleged that three months before the occurrence the appellants had asked the deceased how he dared to encroch upon a portion of the Raasta by constructing the wall. The deceased denied this allegation. That resulted in exchange of words and maarpit. The accused Mukhtiar lodged a report at the police Station and threatened to take revenge. 17. From the evidence of the informant and other witnesses there is no doubt that some dispute had taken place between the deceased and the appellants regarding construction of wall which was followed by maarpit. The report of the incident and injury report, if any, has not been brought on record. It appears that simple maarpit had taken place. The accused during three months, before the occurrence did nothing to remove the encroachment. The appellants no doubt had threatened to take revenge but the circumstances of the case do not show that on account of the enmity regarding construction of wall on the portion of the alleged raasta the appellants had motive to commit murder. The motive was not sufficient for commission of murder. Utmost the accused could intend to beat the deceased for taking revenge. 18. The perusal for the post mortem-report would show that the deceased have received three incised wounds on the head. All these injuries we simple in nature. Dimension and location of the incised wounds are given below: (1) 205 cm X 1 cm X bone on left side head, 10 cms above left ear. (2) 4 cm X 1 cm X bone, 9 cm behind injury No. 1 on left side head. (3) 3 cm X 1 cm X bone deep 12 cm above right ear on right side head. (4) 2 cm X 1 cm on left side abdomen at mid auxiliary line, 12 cm below and away to the umblicus. (5) incised wound 1 cm X 0. 5 cm X muscle on dorsum of right hand at the root of right middle finger, 19. Dr. S. Gupta (PW 8) stated that incised wounds were not accom panied with fracture of the bones underneath. All the injuries which can be attributed to spear, were simple in nature. 20. (5) incised wound 1 cm X 0. 5 cm X muscle on dorsum of right hand at the root of right middle finger, 19. Dr. S. Gupta (PW 8) stated that incised wounds were not accom panied with fracture of the bones underneath. All the injuries which can be attributed to spear, were simple in nature. 20. Injuries 4 and 5, which were lacarated wounds and injuries 7 and 8, which were abraded contusions could be caused by lathis. Injuries 4 and 6, which were lacerated wounds were grievious as they were accompanied with fractures of the underlying both bones. These injuries were caused on non-vital parts of the body. The abraded contusions, which were also caused on the non-vital parts in right and front of right knee were simple in nature. Thus the external injuries could not have resulted in death of the deceased. 21. The Medical Officer found that III, IV, V and VI ribs on the left side were fractured and had probably resulted in rupture of pleura and liver. The lungs and upper part of peritoneum were found congested. These injuries in all probabilities resulted in death of the deceased There was no external injury corresponding to fracture of four ribs. The Medical Officer stated (para 12) that the internal damage was on both the sides of the body on right and left but there was no corresponding injury on the body. He stated that these injuries could be caused, if the chest of the deceased would have been pressed with considerable force, by keeping both the knees. 22. From the evidence on record it could not be found how the injury resulting in fracture of the ribs and rupture of pleura and liver was caused 23. in may be noticed that none of the injuries caused to the deceased was by itself sufficient to cause death. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries noted in the post mortem report. He opined that the deceased had died as result of commutative effect of the injuries. He also opined that with prompt medical aid the deceased could be saved. 24. The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries noted in the post mortem report. He opined that the deceased had died as result of commutative effect of the injuries. He also opined that with prompt medical aid the deceased could be saved. 24. Keeping in view that the motive for commission of murder was not sufficient and none of the injuries itself was sufficient to cause death, we proceed to examine what offence was committed by the appellants. It should also be keep in mind that we are not aware how the deceased sustained fracture of ribs, accompanied with rupture of pleura and liver, which were not accompained with any external injury. 25. In Ram Jattan v State of U. P. , AIR 1994 SC 1130 multiple injuries were inflicted on non-vital parts by 12 accused, who were armed with sharp edged weapons. They sorrounded three persons and inflicted the injuries. There was only one punctured wound and it was a simple injury. Other injuries were caused on arms and legs. In the post mortem examina tion, the doctor noted that 8th and 9th ribs were fractured. Coming to the cause of death, he opined that the death was due to shock and haemorrhage. It was not noted that any of the injuries was sufficient to cause death in the ordinary course of nature. The Supreme Court observed that neither Clause I nor Clause III of Section 300 was attracted to the facts of this case. This contention was put forth before the High Court but was repelled with the observation that the fracture of 8th and 9th ribs must have resulted in causing death and therefore, these injuries must be held to be sufficient in the ordinary course of nature to cause death. The Supreme Court rejected this reasoning and held that in absence of proof by the prosecution in an objective manner that the injuries caused were sufficient in the ordinary course of nature to cause death, the same cannot be inferred unless the injuries are so patent. Referring to the injuries the Supreme Court observed that except fracture of ribs there was no other injury to any of the vital organs. Even in respect of these injuries resulting in fracture of ribs there was no corresponding external injuries. Referring to the injuries the Supreme Court observed that except fracture of ribs there was no other injury to any of the vital organs. Even in respect of these injuries resulting in fracture of ribs there was no corresponding external injuries. All the injuries were on non-vital parts of the body. The learned counsel for the State, submitted that a force ful below dealt on the arm might have in turn caused the frauture of ribs. The Supreme Court observed that even assuming for a moment it to be so, it is difficult to hold that from the circumstances alone the common object of unlawful assembly of 12 persons, who caused to the death of the deceas ed, is established. 26. The Supreme Court further observed that common object has to be gathered or inferred from various circumstances like nature of weapons, the force used and the injuries that are caused. After carefully going December through the medical evidence the Supreme Court observed that it is difficult to conclude that the common object was to cause the death. The injuries on PW 8, as well as, on the deceased were more or lass of the same mature except that in the case of deceased there were few punctured wounds watch were not serious but only simple. He died due to shock and haemorrhage the next day. In any event there was no indication anywhere in the evidence of the doctor or in the post mortem certificate that any of the injuries was sufficient in the ordinary course of nature to cause death. There was not external injury, which resulted in the fracture of the ribs. In such an oven, Clause III 300, IPC was not attracted. Likewise Clause I of Section 300, IPC was also not attracted i. e. , intentionally causing death. If their inten tion was to cause death, they would have used the lethal weapons in a different way and would not have mere inflicted simple injuries on the non-vital parts like legs and hands. 27. With the aforesaid observation the Supreme Court set aside the conviction of the appellants Section 302 read with Section 149, IPC and the sentence for imprisonment for life. Instead it convicted them under Sec tion 304, Part H read with Section 149, IPC. 28. The situation in the case before us is more or less similar. 27. With the aforesaid observation the Supreme Court set aside the conviction of the appellants Section 302 read with Section 149, IPC and the sentence for imprisonment for life. Instead it convicted them under Sec tion 304, Part H read with Section 149, IPC. 28. The situation in the case before us is more or less similar. The appellants had only motive to assault the deceased and it was not strong enough for commission of murder. The injuries influcted by the spear were simple in nature. The lathi injury was caused on non-vital parts of the body, though two of them were accompanied with fractures. There was no external injury corresponding to the fracture of the ribs and there was no explanation from the side of prosecution how this injury was caused. The doctor opined that no single injury was sufficient in the ordinary course of nature to cause death and the accused had died on account of cumulative effect of the injuries, inflicted on him. He further opined that with prompt medical aid the deceased could be saved. 29. In view of these circumstances we are of the opinion that the appellants had no intention to commit murder or to cause injuries, which were sufficient in ordinary course of nature to cause death. There is no doubt that they had attacked the deceased with spear and lathis. Utmost they may by be attributed knowledge that their act was likely to cause death. The appellants, therefore, committed offence punishable under Part II of Section 304, IPC. 30. The Incident had taken place 17 years before. The statement of the appellants were recorded on 31- 1-1981. According to the ago given by Bhura, he was 72 years old. The Additional District and Sessions Judge observed that his age appeared to be 65 years. Thus, the appellant Bhura must be not less than 80 years old at present. Bholu was 52 years of age and he must be about 70 years of age at present. The other appellants were, namely, Mukhtiar was aged 32 years and Abbas was 22 years of age while Qayyum was 23 years aged on the date, when their statements were recorded under Section 313, IPC. Bholu was 52 years of age and he must be about 70 years of age at present. The other appellants were, namely, Mukhtiar was aged 32 years and Abbas was 22 years of age while Qayyum was 23 years aged on the date, when their statements were recorded under Section 313, IPC. The learned counsel for the appellant contended that after such along duration it would not be proper to send the appellants to jail, more so when they had spent sometime in jail after their arrest during the trial and also after conviction. We find force in this contention. We accordingly are of the opinion that the sentence undergone and a fine of Rs. 5,000 under Section 304 second Part, IPC to each of the appellants will meet the ends of justice. 31. The appeal is partly allowed. 32. The conviction of the appellants under Section 302/149, IPG is set aside and the appellants are instead convicted under Section 304, Part II. The conviction of appellants Qayyum and Bhura under Section 149. IPC and Other accused under Section 148, IPC are maintained. The appellants are each sentenced under Section 304, Part II to imprisonment undergone by them and to a fine of Rs. 5,000, which shall be paid within three months. In default of payment of fine be appellants shall undergo rigorous imprisonment for two years. The appellant Mukhtiar, Bhura and Abbas ere sentenced to imprisonment undergone and to fine of Rs. 500 each under Section 148, IPC, whereas the appellants Qayyum and Bholu are sentenced to imprisonment undergone and to fine of Rs. 250 which shall also be paid within three months. In default of payment of fine the appellants Mukhtiar, Bholu and Abbas will undergo rigorous imprisonment of six months where as Qayyum and Bhura will undergo rigorous imprisonment for three years. Out of the fine, if and when realised, a sum of Rs. 20,000 shall be paid be to Smt. Tehsilan, widow of the deceased and in the case of her death, to her heirs. Appeal allowed. .