Judgment G.S.Chaubey, J. 1. In Sessions Trial No. 104/117 of 1987, these four appellants have been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code, to be referred to hereinafter as the Code. Consequently, this appeal. 2. According to the prosecution, at village Alipur within Goroul police station in the district of Vaishali, the informant Lallan Prasad Singh and his family owned a small pond. In the year 1986 the said pond had been settled by them with one Sukhnandan Sahani of village Rasulpur Fateh for rearing fish. However, the informant and other members of his family used to keep a watch thereon. At about noon on 10-5-86 these appellants who are residents of the same village, went to that pond and started catching fish therein. The nephew of the informant named Vidyanand Singh noticed the appellants catching fish in the said pond. Therefore, he went there and protested. That led to some altercation and scuffle between Vidyanand Singh on the one hand and the appellants on the other. The appellants threw Vidyanand Singh on ground. Appellant No. 3 Shatrughan Paswan caught hold of his both hands while appellant No. 4 Dhanik Lal Singh caught him by his both legs. Thereafter appellant No. 1 Bharat Paswan and appellant No. 2 Prabhu Paswan stabbed the said Vidyanand Singh on his neck by means of dagger. When the informant and other witnesses who were present nearby rushed to the situs of the occurrence, the appellants fled away. Injured Vidyanand Singh was brought to the village and kept on a cot. However, before he could be taken to hospital for treatment, he succumbed to the stab injuries there. Consequently, the informant went to Goraul police station accompanied by two of his co-villagers and lodged a first information report at 3 p.m. on the same day. According to the first information report (Ext. 2) the police station was situated 25 kilometers away from the place of the occurrence. 3. On such facts, all the appellants were charged under Section 302 read with Section 34 of the Code. However, they denied the charges and pleaded false implication. To prove the charge the prosecution examined as many as six witnesses. The prosecution failed to examine the doctor who had held the autopsy on the dead body of the deceased as he was dead. However, they denied the charges and pleaded false implication. To prove the charge the prosecution examined as many as six witnesses. The prosecution failed to examine the doctor who had held the autopsy on the dead body of the deceased as he was dead. Therefore, the post-mortem report was admitted into evidence as Ext. 4 on being proved by P.W. 6, a Pleaders Clerk. On consideration of such evidence, learned Additional Sessions Judge of Vaishali at Hajipur has come to a conclusion that the murder of the deceased was committed by the appellants in furtherance of their common intention to kill him. The learned counsel for the appellant has assailed the conclusion of the trial court on the ground that two of the witnesses are related inter se as father and son and the remaining two are their debtors. No independent witness has come to support the prosecution story. He has further stated that according to the statement of the Investigating Officer. there was a report by appellant No. I regarding counter version of the occurrence but that was not taken into consideration by the trial court. It is further submitted that the witnesses examined by the prosecution have made contradictory statements giving rise to a reasonable suspicion that in all probability they had not witnessed the occurrence of assault on the deceased. 4. That deceased Vidyanand Singh had died due to stab in injuries at the hands of somebody inimical to him cannot be disputed in view of oral evidence of the prosecution witnesses and medical evidence stated hereinafter. From the post-mortem report (Ext. 4) it will appear that the doctor performing the post-mortem 11-5-96 at 11 a.m. had found two ante-mortem incised injuries on the dead body. One incised cut wound measuring 2" x 1" x 1" was found on the left cheek of the deceased cutting mas-seter muscles and the vessels around it. It was placed transversely. The second wound was sharp incised penetrating wound measuring 1" x 1" on the left side of the neck. The weapon used had penetrated into the left chest, cavity of the deceased. On dissection, it was found that the weapon had passed through chest cavity damaging the jugular veins, sternomastoid muscle, upper part of the pleurs apper lobe of the left lung and Arch of Aorta. The weapon used had penetrated into the left chest, cavity of the deceased. On dissection, it was found that the weapon had passed through chest cavity damaging the jugular veins, sternomastoid muscle, upper part of the pleurs apper lobe of the left lung and Arch of Aorta. The death had occurred due to the said injuries caused by sharp cutting and penetrating weapon within 24 hours prior to the autopsy. 5. P.W. 5 Bal Karan Singh, a J.S.I. of Goraul police station, has stated that after recording the first information report of the informant Lallan Prasad Singh at the police station he went to village Alipur at 5.30 p.m. and inspected the place of occurrence. According to him, the place of occurrence was the southern bank of the small pond of the informant situated in the badhar of village Alipur-Sumerganj towards north-east. He found some blood fallen on the ground. The paddy plants of the adjoining field were also found trampled. He prepared inquest report (Ext. 3) respecting the dead body at the dar-waja of one Kishori Singh of the same village where it was lying on a cot. 6. P.W. 4 Lallan Prasad (informant) has stated that at about noon on the day of the occurrence, these appellants were catching fish in the pond in question. The deceased went there and protested. On hearing the altercation, he also rushed there. By the time he reached at the pond he found that the deceased had been thrown on the ground and his both hands and legs were caught by appellants No. 3 and 4 respectively. The remaining two appellants, namely, appellants No. 1 and 2. stabbed the deceased on his neck by means of dagger. The deceased was brought to the village in injured condition on a cot. However, before being taken to the hospital he breathed his last. According to him, the remaining three witnesses were also present there from before. P.W. 1 Bhrigu Nath Singh is the son of the informant and first cousin of the deceased. He has said that he went to the place of the occurrence, i.e. the pond alongwith his father (P.W. 4) on hulla. He found that the deceased was thrown on the ground; his both hands and legs were caught by appellants No. 3 and 4 respectively. He has said that he went to the place of the occurrence, i.e. the pond alongwith his father (P.W. 4) on hulla. He found that the deceased was thrown on the ground; his both hands and legs were caught by appellants No. 3 and 4 respectively. According to him, appellant No. 1 stabbed the deceased with dagger on his neck while appellant No. 2 stabbed on his left check. The only contradiction in the evidence of P.Ws. 1 and 4 is regarding the time when P.W. 1 had reached. According to P.W. 4 his son (P.W. 1) was present at the scene of the occurrence from before along with other two witnesses; P.W. 1 has stated that he had gone there with his father (P.W. 4). There is some contradiction respecting the situs of the stabs caused by appellants No. 1 and 2 as well. But, in my opinion, that does not appear to be of much consequence in view of the circumstances in which the assault took place. 7. P.W; 2 Munshi Sah has stated that at the time of occurrence he was transplanting paddy on his field situated east of the place of occurrence. He heard hulla and went there. He found that the appellants were altercating with the deceased. Appellant No. 4 caught hold of both legs of the deceased who fell down and appellant No. 3 caught hold of his hands. Thereafter appellant No. I gave dagger blow on the left cheek of (he deceased while appellant No. 2 stabbed on the neck on the left side. On sustaining such injuries the deceased lost his senses. He was brought to the village on a cot where he died According to his witness, besides him and P.W. 2, one Kusmi Devi and P.W. 1 were also present nearby and witnessed the occurrence P.W. 3 has also stated that he was present in the badhar when the occurrence took place, as he was transplanting paddy. He went to the place of occurrence on hulla and saw that the appellants were altercating with the deceased over the question of catching fish from the pond. All the appellants threw the deceased on the ground: and appellants No 1 and 2 stabbed the deceased, while the remaining two appellants had caught hold his legs and hands. The witness has. All the appellants threw the deceased on the ground: and appellants No 1 and 2 stabbed the deceased, while the remaining two appellants had caught hold his legs and hands. The witness has. however, stated that he saw that appellant Bharat Paswan stabbed on the left cheek of the deceased. However, he could not vouch on what part of the body of the deceased the dagger blow aimed by appellant Prabhu Paswan had struck. This witness has stated that they could not intervene because the assailants were armed with daggers. Therefore. they had witnessed the entire occurrence from a safe distance of 5 to 10 cubits. He has also stated that scuffle between the deceased and the appellants started inside the pond itself and in course thereof they reached the bank where he was stabbed. P.W. 5 has also stated that the clothes of the deceased were wet and smeared with mud. 8. Except the contradictions respecting the situs of the blows received by the deceased at the hands of appellants No. 1 and 2, the witnesses are consistent on the manner of assault. All of them have stated that appellant No. 3 had caught hold of both the hands of the deceased, while appellant No. 4 had caught his both legs. However, the nature of the injuries, particularly that on the neck of the deceased, indicate that it could not have been caused while the victim was laying down on ground in the manner alleged by the prosecution witnesses. The injury shows that the weapon used had travelled from upwards to downwards penetrating and thereby damaging the lungs and arch of aorta on the left side after cutting the jugular veins and sternomastoid muscles. Such injuries could have been possible only when the victim and the assailant were standing face to face. Therefore, the witnesses do not appear to be truthful when they say that they had seen appellants No. 3 and 4 catching hold of both hands and legs of the deceased when he had fallen on the ground before being stabbed. However, they appear to be consistent on the point that the remaining of the two appellants were armed with daggers and each of them had aimed a blow. Indeed, the witnesses have contradicted one another on the question whereto the deceased had been injured at the hands of the appellants No. 1 and 2. However, they appear to be consistent on the point that the remaining of the two appellants were armed with daggers and each of them had aimed a blow. Indeed, the witnesses have contradicted one another on the question whereto the deceased had been injured at the hands of the appellants No. 1 and 2. In the first information report it had been stated that both the said appellants had stabbed the deceased on the neck of the deceased. So said P.W. 4 in course of his evidence in court. However, his son (P.W. 1) has stated that while appellant No. 1 had stabbed the deceased on neck, appellant No. 2 had inflicted the dagger blow on left cheek. P.W. 2 has stated just the reverse, i.e., appellant No. 1 had stabbed on left cheek while appellant No. 2 had stabbed on the neck of the deceased. P.W. 3 is specific regarding the blow of appellant No. 1 which hit on the left cheek of the deceased; but is non-committal respecting the situs of the injury caused by appellant No. 2. He has gone to the extent of saying that he could not notice whether the blow aimed by appellant No. 2 had hit the deceased and if so on which part of his body. 9. Such contradictions were only natural in the circumstances under which the occurrence took place. The appellants were catching fish in the pond of the informant and the deceased. The deceased arrived there and protested; a scuffle followed. On alarm that was caused the witnesses including the informant rushed to the site of the occurrence. In the meantime, the deceased appears to have been stabbed by two of the assailants. Therefore, because the witnesses saw the blows being given to the deceased, from some distance and the deceased and the assailants were entangled with each other, it was not possible for them to notice where the blow aimed by the individual assailants, namely, appellants No. 1 and 2 has actually struck the deceased. However, for that reason alone their testimony cannot be thrown away or discarded. It is pertinent to note that the witnesses were subjected to cross-examination by the defence and no malice on their part could be elicited for falsely implicating the appellants. It was suggested to the witnesses by the defence that appellant No. 1 has also sustained injuries. However, for that reason alone their testimony cannot be thrown away or discarded. It is pertinent to note that the witnesses were subjected to cross-examination by the defence and no malice on their part could be elicited for falsely implicating the appellants. It was suggested to the witnesses by the defence that appellant No. 1 has also sustained injuries. However, all the witnesses consistently refuted the suggestion. They stated that they had not seen any injury on his person. From the evidence of P.W. 5 it appears that he had received on 12.5.1986 the fardbeyan of appellant No. 1 from Mahua police station alongwith injury report. As no cognizable offence was made out, he made an entry in the station diary on the same day and he did nothing beyond. One does not know what was the content of the fardbeyan of appellant No. 1; nor does one know the injury report was respecting whose injury and what was the nature. What is conspicuous is that in course of his examination under Section 313, Cr. P.C., appellant No. I did not even whisper that he had been injured by any body, muchless by the deceased in course of any occurrence of assault on 10.5.1986. 10. Therefore, in the present case there is little scope to draw any other conclusion except that arrived at by the learned trial court that the deceased has sustained the fatal wounds at the hands of the appellants or some of them, particularly appellants No. 1 and 2. However, in the circumstance of the case, it is very difficult to agree with the trial Court that fatal wound had been inflicted to the deceased in furtherance of the common intention of all the appellants to kill him. As the story goes, the appellants had gone to the pond in question for catching fish stealthily. The deceased went there and protested leading to scuffle between them followed by fatal assault by two of the appellants according to avowed case of the prosecution itself. As the story goes, the appellants had gone to the pond in question for catching fish stealthily. The deceased went there and protested leading to scuffle between them followed by fatal assault by two of the appellants according to avowed case of the prosecution itself. Therefore, there could be hardly any intention on the part of the appellants from before to kill the deceased, if the story of appellants No. 3 and 4 catching hold of the hands and legs of the deceased goes as it ought in the circumstance of the case, appellants No. 3 and 4 can hardly be imputed sharing of any common intention with the assailants of the deceased to kill him. Therefore, they cannot be convicted for the offence with the aid of Section 34 of the Code. 11. As regards appellants No. 1 and 2, it has been contended by the learned counsel for the appellants that in the circumstance of the case, the case cannot travel beyond Section 304 of the Code. There was no premeditation on the part of the appellants No. 1 and 2 to kill the deceased. Scuffle between them on the one side and the deceased on the other followed on the question of the former catching fish from the pond of the latter, and the latter protested; and in the heat to passion two of the appellants whipped out daggers and gave one blow each to the deceased and fled when he fell down. There was no attempt on their part to repeat the blow. Therefore, the wounds inflicted to the deceased were not with intention to kill him It might be that to free themselves from the clutch of the deceased he was stabbed. However, keeping in view the nature of the injuries inflicted it could certainly be inferred mat the injuries particularly on the neck, were inflicted with intention to causing such bodily injuries were likely to cause death of the victim. Therefore, in my opinion, the act of appellants No. 1 and 2 in inflicting stab injuries on the person of the deceased amounted to culpable homicide not amounting to murder punishable under Part-I of Section 304 of the Code. Therefore, the conviction of appellants No. 1 and 2 is altered from Section 302 read with Section 34 to Section 304, Part-I read with Section 34 of the Code. Therefore, the conviction of appellants No. 1 and 2 is altered from Section 302 read with Section 34 to Section 304, Part-I read with Section 34 of the Code. Both these appellants are lodged in Jail since 24.6. 1986; in other words, they have already spent ten years and eight months in jail. In my opinion, the period spend by them in jail shall serve the ends of justice in the present case. Accordingly, their sentences are reduced to the period already undergone. 12. In the result, the appeal is allowed respecting appellant No. 3 Shatrughan Paswan and appellant No. 4 Dhanik Lal Singh and they are acquitted of the charge and set at liberty. As regards appellant No. 1 Bharat Paswan and appellant No. 2 Prabhu Paswan, their appeal is dismissed subject to the modification indicated above. Let all the appellants be released from prison forthwith, if not required in any other matter.