JUDGMENT - N.P. CHAPALGAONKER, J.:---This is an appeal challenging the conviction recorded by the learned Additional Sessions Judge, Ambajogai on 10th March 1993 in Sessions Case No. 106 of 1988 holding the appellants guilty of an offence punishable under sections 147, 148, 302 read with 149 of the Indian Penal Code and sentencing them to undergo imprisonment for life and to pay fine of Rs. 1,000/- each and in default, to suffer rigorous imprisonment for six months. 2.The appellant No. 3 Faiz Mohammad Khan Mubarak Khan Pathan died during the pendency of this appeal. 3.Accused Nos. 1 and 2 --Arif Yusuf Sab Deshmukh and Sadiq Yusuf Sab Deshmukh- are the real brothers inter-se. One Basheer Yusuf Sab Deshmukh was their step brother and their relations were strained. According to the prosecution version, Arif and Sadiq had a grievance that the ancestral property is not properly distributed and they are not given the due share by Basheer and since Basheer refused to give a sum of Rs. 15,000/-, he was assaulted by these brothers along with other accused, in which Basheer lost his life. 4.The prosecution evidence consists of ocular testimony of three witnesses to the incident. They are (P.W. 1) Liyakat Miya s/o Chunnu Miya Deshmukh-cousin brother of deceased Basheer; (P.W. 3) Abdul Hakeem s/o Gulam Dastgeer-brother-in-law of deceased Basheer and (P.W. 6) Mujaffar Khayamoddin-nephew of Basheer. As corroboration to this ocular evidence, prosecution relies on the information admissible under section 27 of the Indian Evidence Act, which was allegedly given by accused Faiz Mohammed, accused Rasheed Khan, accused Taj Khan and accused Nyaz Mohammad Khan in furtherence of which, sticks which were allegedly used in the assault, were recovered. Prosecution further relies on the recovery of two knives in furtherence of the information disclosed by accused Assalat Khan Pathan and Ayub Khan Pathan accused Nos. 4 and 8 (appellant Nos. 4 and 7). 5.Dr. Anil Digambar Jinturkar (P.W. 11), who has performed post-mortem examination of the dead body of Basheer, has deposed about injuries which he found on the person of Basheer and has given the cause of death. The provisional post-mortem certificate is at Exh. 74 and the post mortem notes are at Exh. 75 Apart from these two entries in the non-cognizible offence registered about the reports made to Ambajogai Police Station on 19th February 1988 having Station Diary Nos. The provisional post-mortem certificate is at Exh. 74 and the post mortem notes are at Exh. 75 Apart from these two entries in the non-cognizible offence registered about the reports made to Ambajogai Police Station on 19th February 1988 having Station Diary Nos. 38 and 39, have been relied upon by the prosecution. 6.Kanduri, a religious function consisting of offerrings to a saint or a holy person at a Dargah, was performed by Basheer at village Khalangri, native place of Basheer. Basheer was having the commission agency business in Latur and had come for this ceremony to village Khalangri in a truck and on way to Khalangri, he had picked up his cousins Liyakat Miya and Azar Miya from Bardapur and Ambajogai. In the evening of 18th February, after the Kanduri function was over, Basheer and others were sitting in the sitting room of the house of Basheer when Arif, accused No. 1, along with his brother Sadiq, accused No. 2, came there. Arif demanded a sum of Rs. 15,000/- for business from Basheer. Basheer replied that he has no amount and he is not giving anything. Thereupon, Arif threatened Basheer that he will not allow Basheer to live happily and also threatened to kill him. Thereafter, there were some hot exchanges of words but the other persons prevented the quarrel going further. Thereafter again in the next morning, between 8 to 9 am, accused Arif came in the Baithak (sitting room) and demanded the amount. Basheer replied that he has no amount. Thereupon, Arif accused No.1 threatened in the similar fashion and said that he will not allow Basheer to live happpily and would kill him. Sensing the seriousness, it appears that, Basheer Sab along with others, proceeded to Kingaon Police Station, which was the nearest one to village Khalangri and lodged a report against accused. No. 1. Liyakat Miya (P.W. 1) was accompanying Basheer Sab when he went to the police station at Kingaon for lodging this report. The report is at Exh. 47 7.The report complaints that the step brother of the informent namely Arif Yusuf had come to the residence of the informant. There were other accused present. He demanded a sum of Rs. 15,000/- for business and threatened that if he failed to comply with this demand, he will murder Basheer. The report is at Exh. 47 7.The report complaints that the step brother of the informent namely Arif Yusuf had come to the residence of the informant. There were other accused present. He demanded a sum of Rs. 15,000/- for business and threatened that if he failed to comply with this demand, he will murder Basheer. He will not allow Basheer to live happily and he would see how they live in the village. The report makes a mention about four persons who tried to intervene and pacify Arif. It apprehends that there is a danger to the life of informant Basheer and his relatives from Arif and prays for protection. It is true that the time of demand mentioned in the first paragraph of this report is 2 pm., which does not tally with the time given by Liyakat Miya (P.W. 1) but the last sentence of the first paragraph giving the date of offence, goes to show that the report is consolidated one for the happenings of 18-2-1988 and 19-2-1988. If this is noted, not much importance can be given to the discrepancy in time. It was admitted by the witness in the cross-examination that this report filed with the police was scribed by Bali Sarpanch and Basheer signed it. This admission does not in any way affect the credibility of this report. 8.After this incidence and after lodging the report at Kingaon Police Station, Basheer and other relatives came to Ambajogai. Hakeem Saab, brother-in-law of Basheer, requested all of them to have a dinner at his residence. After the dinner was over, accused Nos. 1 and 2 - Arif and Sadiq,- along with accused Nos. 3, 4, 5 and 6 came to the house of Hakeem Saab. Accused Nos. 1 and 2 threatened Basheer Sab that Basheer is not going alive from that place. Sensing the danger, Hakeem Saab took the accused persons out of the house and then the room was chained from inside. The accused were shouting and challenging Basheer to come out of the house. They threatened to break open the door and kill Basheer. The witness tells us that thereupon, Raees went to the police station and gave information about the incidence to the police. One Police Constable came to the house of Hakeem Saab. Thereafter Hakeem Saab, Basheer and others along with the Police Constable, reached police station by truck. They threatened to break open the door and kill Basheer. The witness tells us that thereupon, Raees went to the police station and gave information about the incidence to the police. One Police Constable came to the house of Hakeem Saab. Thereafter Hakeem Saab, Basheer and others along with the Police Constable, reached police station by truck. Basheer again lodged an oral complaint to the police. So also, the accused Nos. 1 and 2 lodged a complaint. Police thereupon advised both the parties not to quarrel and settle the civil dispute through the Court. 9.If we look to the corroboration to the version given by Liyakat in the contemporary is record maintained by the police, we find that the station diary Entry No. 38, is a report filed by Mohd. Akbar, r/o Barabhai Galli alleging that Afzal Deshmukh and Basheer, r/o Latur, had abused and assaulted the complainant and the complainant is being sent to the hospital. The time at which the entry in the station diary was taken is 22.30 hours. The next entry is at 23.00 hours and this Entry No. 39, shows that Basheer had lodged a complaint against Arif, Sadiq, Ayub Mubarak and Bale Khan, all residents of Ambajogai that there is a dispute between the complainant and the accused in respect of the land and the accused No.1 Arif demanded a sum of Rs. 15,000/- to the complainant. Therefore, there was exchange of abuses and physical power. Though the witness Liyakat has deposed that accused Nos. 1 to 6 had come there, he identified in the Court accused Nos. 3, 4, 5 and 8 having come at the residence of Hakeem Saab along with accused Nos.1 and 2. Whereas the report makes a mention about accused Nos.1, 2, 4 and of one Bale Khan, the learned APP submits that the name of Bale Khan should be read as that of Male Khan since the slip of pen might have been occurred in copying down. 10.The entries in the station diary have been made available to us in the form of the entries in the N.C.Register, apparently taken from the station diary and these extracts are at Exh.Nos. 66 and 65 chronologically. 10.The entries in the station diary have been made available to us in the form of the entries in the N.C.Register, apparently taken from the station diary and these extracts are at Exh.Nos. 66 and 65 chronologically. Prosecution has not placed before us any entry made in the station diary in furtherence of information supplied by Raees s/o Liyakat and we do not have the statement of the Police Constable, who was sent to the residence of Hakeem Saab. In a sense, Exh.65 lodged by Basheer, is an important document which would, at one side, show that Arif and Sadiq were threatening Basheer and the parties went to the length of physically assaulting each others. There appears to be little exaggeration in Liyakat Miya's statement since he is improving upon Basheer's own information before the police which mentions only five persons. The discrepancy to be noted is that there is no mention of accused No.3 Faiz Mohammad, accused No.5 Nyaz. Mohammad and accused No.6 Mohd. Akbaruddin in the information contained in Exh.65 The names of those persons were deposed by PW 1 before the Court. The report of non-cognizable offence registered at Entry No.38, the copy of which is at Exh.66, is by one Mohammad Akbar s/o Mohammad Gaus Mohiuddin, accused No.6. Though this alleges that Basheer and Afzal abused and assaulted Mohd. Akbar, this corroborates the fact that there was a quarrel going to the extent of physical assault between Basheer and one of the accused. 11.From this testimony of Liyakat, we get the picture that after recording all these informations, which were of non-cognizable nature, the police advised both the groups to settle their civil dispute amicably and apprehending danger to the truck, Basheer appears to have requested that the truck should be allowed to be kept in police station and on oral consent, the truck was left at the police station. The fact that the truck was allowed to be left at Police Station has been accepted by PSI Shete (P.W. 8). The witness Liyakat also tells us that police protection was requested by them and a Constable namely Kazi was sent with them. Basheer, Hakeem and others, who had gone to the police station, came back on foot and reached to the bus stand at about midnight. The Police Constable left these persons at the S.T.stand. The witness Liyakat also tells us that police protection was requested by them and a Constable namely Kazi was sent with them. Basheer, Hakeem and others, who had gone to the police station, came back on foot and reached to the bus stand at about midnight. The Police Constable left these persons at the S.T.stand. Neither this witness nor anybody else has told the Court as to why this Police Constable left them at the S.T. stand. The prosecution story also does not suggest that initially all of them had decided to leave by bus and, therefore, no further protection was necessary. The witness tells that thereafter they started proceeding towards Hakeem Saab's house after taking tea at bus stand. 12.The witness deposes that about 10 to 12 persons were sitting in front of the Masjid in Mangalwar Peth. They included accused Nos. 1 to 6 and 8 and 9. Accused Nos. 1, 2, 3 and 5 were holding sticks. Accused Nos. 4 and 8 were holding knives. Accused No.1 gave a stick blow on the head of Basheer. Accused No. 2 Sadiq hit a stone on the head of Basheer. Accused Nos. 3, 5 and 9 and another accused gave stick blows to Basheer. Basheer thereupon fell on the ground. Accused No. 8 Asad pointed a knife on the stomach of witness Liyakat and threatened him that if he moved, he is going to insert it in his stomach. Hakeem and Mujeeb were standing near Liyakat. After Basheer fell down, Sadiq again hit a stone on the head of Basheer. Thereafter all the assailants went away. Basheer had received a bleeding head injury. He was taken to the police station by Hakeem Saab and Mujib in a rickshaw and on directions given by the police, further to Swami Ramanand Tirth Rural Medical College Hospital, Ambajogai. At about 6 am in the morning, Basheer succumbed to the injury and he was unconscious till his death. 13.This witness Liyakat Miya (P.W. 1) has lodged the First Information Report at Exh.41. The material omissions in this report are that there is absolutely no whisper about the knives which were allegedly in the hands of accused Nos. 4 and 8 and this First Information Report does not say that after Basheer fell down, Sadiq again hit him by a stone. 14.At this point, we would like to consider an objection raised by Mrs. 4 and 8 and this First Information Report does not say that after Basheer fell down, Sadiq again hit him by a stone. 14.At this point, we would like to consider an objection raised by Mrs. Jadhav that this report lodged by Liyakat cannot be read as First Information Report and is not admissible in evidence. Mrs. Jadhav submitted that the First Information Report was lodged at 13 hours on 20.2.1988. Hours before that, police had the information that Basheer has been assaulted and is admitted in the hospital. Firstly, the witnesses have deposed that Basheer was taken in a rickshaw firstly to the police station and thereafter to the Medical College Hospital. Secondly, the duty Medical Officer in the Medical College Hospital had informed the police to arrange for recording the dying declaration of Basheer. This information was passed on by the police station to the out-post, which is housed in the medical college compound. Though no dying declaration of Basheer could be recorded, since he was unconscious, unfortunately police had the information about the cognizable offence. 15.It is true that the investigating machinery has shown lethargy in not immediately taking down the information about the cognizable offence by contacting some person, who was the eye witness to the incident. There was nothing wrong in directing that Basheer should forthwith be taken firstly to the Medical College Hospital but the police could have followed them and could have immediately recorded the statement of persons accompanying Basheer and after locating the eye witness, could have registered a crime on the basis of that statement. The police have not done this and it is necessary to record that they failed in their duty. Police Station Ambajogai had a background of the quarrel and a little more sense of urgency on their part would have been the better compliance of their duty. But merely because some Constable standing at the entrance of police station directing that the injured be first taken to the hospital or information by the Medical Officer that arrangement be made to record the dying declaration of Basheer, who has been admitted in the hospital in injured condition, by themselves cannot be termed to be the first information about commission of the cognizable offence. We are not prepared to accept the submission of Mrs. Jadhav in this behalf and discard Exh.41. We are not prepared to accept the submission of Mrs. Jadhav in this behalf and discard Exh.41. Exh.41 is the first information which has reached to the police station about commission of a cognizable offence and, therefore, is admissible. The other objections about the credibility of this information will have to be taken note of and we will deal with them in the latter part of our judgment. 16.The second eye witness is Abdul Hakeem. He narrates almost the same story which Liyakat (P.W. 1) has deposed before the Court but while describing the last incidence, adds that accused No. 4 first gave one slap to Basheer. P.W. 1 had admitted in the cross-examination that Hameed Ali Deshmukh, an Advocate from Latur and brother of P.W. 1 had come to Ambajogai at about 10 a.m. to 12 noon after learning the death of Basheer but has also stated that the complaint was lodged before Hameed Ali came to Ambajogai and he had no talk with Hameed Ali regarding the incidence. Mujaffar Khayamuddin Inamdar (P.W. 6) is again repeating the narration of the incidence as was given by P.W. Nos. 1 and 3. 17.The learned Sessions Judge has recorded a finding that all the accused persons were members of the unlawful assembly and the provisions of section 149 is applicable in this case. While arriving at this conclusion, he was pleased to observe as follows in paragraphs Nos. 55, 56, and 57 of his judgment : "From the evidence of Liyakat Miya and Mujaffar Inamdar in respect of overt act committed by accused Arif and Sadiq on 18-2-1988 at 8.30 pm and on 19-12-88 at village Khalangri and the enmity between accused Arif, Sadiq and Basheer Saab is sufficient to draw an inference that accused Arif and Sadiq have some dispute with deceased and they threatened him to kill and they also threatened not to allow him to live happily. The contents of Exh. 47 invariably proved this fact. Later on accused Arif and Sadiq both came to Ambajogai on the same day from their village Khalangri and they approached to the house of Abdul Hakim along with accused Nos. 4, 6, 9, 10 and father of accused Nos. 3, 4 and 5 and they all assaulted Basheer Saab and also threatened him to kill. Later on accused Arif and Sadiq both came to Ambajogai on the same day from their village Khalangri and they approached to the house of Abdul Hakim along with accused Nos. 4, 6, 9, 10 and father of accused Nos. 3, 4 and 5 and they all assaulted Basheer Saab and also threatened him to kill. This material fact is also sufficient to conclude that these accused persons have formed unlawful assembly with common mind to commit murder of Basheer Saab. The report Exh. 65 lodged to P.S. Ambajogai by Basheer Saab is an another dying declaration where Basheer Saab apprehended danger to his life by the hands of accused Nos. 1, 2, 4, and 10. The contents of this complaint also clearly indicated that there was common intention between these accused persons to commit murder of Basheer Saab. Lastly, the incident alleged as occurred in midnight of 19th and 20th February 1988 and the presence of these accused persons with sticks and knives is sufficient to establish that they have formed unlawful assembly and the common object of that assembly was to commit murder of the deceased Basheer Saab. Therefore, obviously the provision under section 149 of I.P.C. is applicable to this case. ......... In view of this legal position, when the presence of accused Nos. 1, 2, 3, 4, 5, 6, 8, 9 and 10 is specifically claimed by the eye witnesses at the scene of offence with particular weapon in their hands, then all these accused persons, referred to above, are liable for punishment under section 149 of I.P.C. for the offence under section 302 of I.P.C. From the threats issued by accused Arif and Sadiq and others repeatedly to the life of deceased Basheer Saab and the reports lodged by deceased Basheer Saab are sufficient to come to the conclusion that the common object of the assembly was to commit murder of deceased Basheer Saab." The learned Judge has relied on the judgment of Patna High Court in the case of (Sitaram Pandey v. The State of Bihar)1, reported in 1976 Cri.L.J. 800 and the judgment of Supreme Court in the case of (Nanak Chand v. State of Punjab)2, reported in A.I.R. 1955 S.C. 274. In Sitaram Pandey's case, it was held that if persons are in a mob holding lathis and are in company of other persons, who are holding deadly weapons like Bhalas and if they come together and go together after the occurance, it cannot be said that they did not share the common object. The provisions contained in section 149 will be attracted unless it is established that the persons holding lathis at the place of occurance were mere sight-seers. In the case of Nanak Chand, it was held by the Supreme Court that every person, who is a member of an unlawful assembly, should be guilty of the offence committed by any person although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. 18.If the presence of more than five persons is established by trustworthy evidence, then the question whether they formed or were the members of that unlawful assembly and whether they shared the common object, would arise. 19.The learned trial Judge appears to have taken into consideration the following factors in judging the common object of the assailants. (i) That Arif and Sadiq, on 18-2-1988 and 19-2-1988 at village Khalangri, threatened Basheer; (ii) In the house of Abdul Hakeem, the accused arrived and Sadiq, along with accused Nos. 4, 6, 9, 10 and father of accused Nos. 3, 4 and 5 assaulted Basheer Saab and also threatened him to kill; (iii) Basheer Saab, in a report Exh. 65 which was treated by the learned Judge as his dying declaration, apprehended danger to his life at the hands of accused Nos. 1, 2, 4 and 10; (iv) Accused persons had sticks and knives in their hands and they assembled in the midnight of 19th and 20th February 1988 and assaulted Basheer Saab. 20.Let us first examine what portion of the ocular testimony is without any shade of doubt and is safe to be the foundation of conviction. It is alleged that accused Nos. 4 and 8 were holding knives in their hands. Strangely enough, in the First Information Report Exh. 41, there is not a whisper about these knives. None of these knives is alleged to have actually been used. It is alleged that accused Nos. 4 and 8 were holding knives in their hands. Strangely enough, in the First Information Report Exh. 41, there is not a whisper about these knives. None of these knives is alleged to have actually been used. The witnesses have deposed that these knives were used to threaten them so that they should not enter in the fray. If the knives would have actually been there, Liyakat would not have omitted to mention this fact in the First Information Report and had there been common object of this assembly to murder Basheer, there was nothing to prevent the use of knife for that purpose. The fact that accused No. 8 Assalat Khan threatened Liyakat that he would insert that knife into his stomach, has not been stated by Liyakat in his statement under section 161. This is an omission which raises a serious doubt about the story of knives. These two knives are recovered at the instance of accused Nos. 4 and 8 but from memorandum and the panchanama, it does not appear that they were any way concealed. 21.So far as the assault by accused Nos. 3 to 10 by sticks is concerned, we do not find sufficient corroboration for the ocular testimony. Injury Nos. 1, 3 and 4 are on head. Injury No. 2 is near the left eye. Injury No. 5 is on the margin of pinna of the left ear. Injury No.6 is over the left side of the neck. Injury Nos. 7 and 8 are to the left hand and the right hand respectively and injury Nos. 9 and 10 are on the right knee and the left knee respectively. None of these injuries are weel marks which normally appear on the person if one is beaten by stick. True that it is not always necessary that such weel mark should be there but absence of a single weel mark on any other part of the person of Basheer raises serious doubt about the version of the prosecution witnesses when they say that even after the fall of Basheer, Basheer was given stick blows by all the accused. 22.Injury No. 2 is a contusion obliquely placed over the face at the lateral most portion of left eye. Injury Nos. 5 to 10 are irregular abrasions and they are minor in nature. 22.Injury No. 2 is a contusion obliquely placed over the face at the lateral most portion of left eye. Injury Nos. 5 to 10 are irregular abrasions and they are minor in nature. It was accepted by the Medical Officer (P.W. 11) that injury Nos. 2 and 5 to 10 can be caused by repeated falls. The witnesses have told the Court that Basheer fell down on the road after getting two blows, one by accused No. 1 and the second by accused No. 2. The first was with a stick and the second was with a stone. In the light of this glaring circumstances, it is not safe to rely this portion of the statement of the witnesses and it appears to be an exaggeration. 23.All the three eye witnesses have deposed that accused No.1 Arif gave a stick blow on the head of Basheer. Accused No. 2 Sadiq pelted stone which hit Basheer on the head. Though the witnesses have improved the story by saying that even after Basheer fell down on the road, accused Sadiq again hit him by stone but this was not stated before the police. Therefore, the acceptable version by the prosecution witnesses is a stick blow by Arif and a stone hit by Sadiq. Injury Nos. 3 and 4 are the two injuries which were serious and were collectively and individually sufficient to cause death in the ordinary course of nature. The eye witnesses have deposed about the stick blow and a stone hit by accused Nos. 1 and 2 and, therefore, they are the authors of either of these two injuries. 24.While considering what could have been the intention or object of the accused in inflicting these injuries, the learned Judge appears to have swayed away by the fact that on occasion, preceding to this assault, accused No.1 accompanied by accused No. 2, had declared his intention to kill Basheer and Basheer had the apprehension that he is likely to be killed by Arif and other persons. It is true that section 14 of the Indian Evidence Act shows the existence of state of mind relevant and, therefore, admissible but a distinction will have to be made in the proof of actual act and the proof of his state of mind. It is true that section 14 of the Indian Evidence Act shows the existence of state of mind relevant and, therefore, admissible but a distinction will have to be made in the proof of actual act and the proof of his state of mind. No previous instance or even the declaration for that purpose, can be taken assistance of in examining whether the actual act of the accused is proved or not. However, if an act of the accused is independently proved, then the state of mind, which was there while committing that act, may be proved by giving evidence of the facts like his conduct in the immediate past. In the case of (M.L Britchard v. Emperor)3, reported in A.I.R. 1928 Lahore 382, the learned Judge of the Lahore High Court was pleased to observe:- "It is settled law that under neither of sections 14 and 15 can the evidence on facts similar to but not part of the same transaction as the main fact be received for the purpose of proving the occurance of the main fact, which must be established by evidence directly bearing on it. But when the existence of that fact has been so established and a question arises as to the state of mind of the person who did it, or whether the act in question was done accidentially or with a particular knowledge or intention, evidence of similar acts may, under certain conditions, be admitted." 25.The Division Bench of Madras High Court in the case of (Appu @ Ayyanar Padayachi v. The State)4, reported in A.I.R. 1971 Madras 194 was pleased to hold that the probative force, both of preparation for commission of offence and of previous attempts in that direction, manifestly rests on the presumption that an intention to commit the offence was framed in the mind of the accused which persisted until power and opportunity were found to carry it into execution. Such evidence is admissible both under sections 8 and 14. 26.The learned APP firstly contended that in unequivocal terms, Arif had declared his intention to kill Basheer and, therefore, while inflicting a stick blow on the head of Basheer, we can safely infer his intention that it was to kill Basheer and as such, the offence is nothing short of a murder. 26.The learned APP firstly contended that in unequivocal terms, Arif had declared his intention to kill Basheer and, therefore, while inflicting a stick blow on the head of Basheer, we can safely infer his intention that it was to kill Basheer and as such, the offence is nothing short of a murder. Besides this, when a man inflicts a stick blow with optimum force on the head of another person, the intention can well be inferred to be to commit murder. So far as the first part of submission of the learned APP Shri Bhapkar is concerned, we are afraid that the happenings on the previous day are short of proving a definite intention to murder Basheer. Whenever two persons or two groups at the logger heads abuse each other and threaten each other of the dire consequences if the demand of one person or party is not accepted by the other person or party and give threat that he would be killed and will not be allowed to live happily, it is not necessary to take this literally. At best, it can be inferred that the threat of bodily injury or destruction of property is there. The words used need not be taken in stricto sensive. It is true that twice or thrice, Arif and Sadiq and others went to the place where Basheer was staying, abused him and threatened him since he was not accepting the demand of Arif for Rs. 15,000/- as capital for business. Because of Basheer's refusal, there was reason to Arif as well as Sadiq for getting annoyed but there was nothing which these two accused would have barred that Basheer is put to death. Therefore, it is only safe to infer that if a person who has threatened Basheer on the previous day, has assaulted him, the intention is to give him physical punishment but not necessarily that of the death. Therefore, we will have to consider the nature of the injuries and other evidence as is deposed by the eye witnesses. 27.The eye witnesses have deposed that there was only one stick blow given by Arif and two stone hits by accused Sadiq. Even the story of second blow by Sadiq is unbelievable. Had there been an intention to murder, Arif and Sadiq would not have stopped themselves after infliction of the first blow. 27.The eye witnesses have deposed that there was only one stick blow given by Arif and two stone hits by accused Sadiq. Even the story of second blow by Sadiq is unbelievable. Had there been an intention to murder, Arif and Sadiq would not have stopped themselves after infliction of the first blow. It is not the story of prosecution that any of the witnesses intervened and stopped them from further beating. This goes to show that by losing temper, the accused inflicted bodily injuries on Basheer but the number of the blows and nature of the weapon used is not sufficient to hold that they had intention to murder Basheer. However, the selection of the location to give a stick blow is sufficient to pose the author of those grevious injuries with the knowledge that the injury is likely to cause death. If a man hits victim by a stick on his head with force and another one pelts a stone hitting his head, both of them can be presumed to have knowledge that the injury is likely to cause death and, therefore, are guilty of an offence punishable under section 304 Part II. 28.We are disbelieving the portion of the ocular testimony so far as it says that other accused also gave stick blows, firstly for the reason that the medical evidence does not support fully and secondly for the reason that the recovery of the so called sticks has not been proved in the Court. The panch witness has turned hostile. Thirdly, it is for the reason that since there was considerable delay of at least six hours from the time of death of Basheer in filing the First Information Report, there was time to improve the story and involve some more persons, who might have supported the cause of Arif and Sadiq in demanding their share or money, as the case may be, from Basheer. Therefore, a reasonable doubt arises in respect of that portion and those accused are entitled for the benefit of doubt. A portion of ocular testimony can be believed even if the witnesses have exaggerated and another portion is disbelieved. It is true that the accused have taken the law into their own hands and have resorted to physical force for solving their civil dispute. A portion of ocular testimony can be believed even if the witnesses have exaggerated and another portion is disbelieved. It is true that the accused have taken the law into their own hands and have resorted to physical force for solving their civil dispute. This will have to be deprecated, but the age of the accused, as was at the time of commission of the offence i.e 25 and 22 years and the fact that the offence has taken place about eight years back and the accused are in jail since last more than three years and the other factors,, pursuade us to hold that seven years' rigorous imprisonment would be sufficient to meet the ends of justice. We maintain the direction for payment of fine. 29. The appeal is, therefore, allowed in part. The appellants Nos. 3 to 9 are acquitted of the offences charged giving them benefit of doubt. They be released forthwith, if not required in any other case. Since they are acquitted, the amount of fine, if paid, be refunded to them. The accused Nos. 1 and 2 are convicted for an offence punishable under section 304-II of the Indian Penal Code and they are sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- for each one of them and in default, to undergo further rigorous imprisonment for nine months. They are acquitted of other offences charged. Appeal partly allowed. *****