Judgment G. S. Chaube, J. 1. Appellant No.1 jamuna Singh, appellant No.2 Krishana singh alias Sri Kishun Singh and appellant No.3 Bachha Singh have been convicted under Sec.304, read with section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life. Appellant No.4 Sri Bhagwan Singh has been convicted under Sec.323 i. P. C. and sentenced, to undergo rigorous imprisonment for three months. 2. The facts which have led to the trial and conviction of the appellants may be summarised as under. On 19-4-1979 one Ram Awatar Thakur (P. W.1)of village Sadhpur within Garkha police station in the district of Saran was teased and abused by two young boys of the family of appellants No.2 and 3 because the former had eloped with a married girl of his neighbourhood and married her to the dislike of the villagers including these appellants. On being so teased. Ram Awatar Thakur retorted and rebuked those boys. Consequently, they went home and complained to appellant No.2 that he had abused them. Consequently, these appellants and one Prakash Singh arrived near the house of Ram Awatar Thakur armed with bhalas and lathis with a view to teach him a lesson by assault. The said Ram Awatar Thakur fled and cried for help. Therefore, Md. Sahid (the deceased) who happened to be the Ex. Sarpanch of the village intervened and showed his inclination to resist any assault on the said Ram Awatar Thakur, a village barber by profession. He invited the ire of the appellants and their associate Prakash Singh and they inflicted bhala and lathi blows on his person causing multiple injuries. Md. Sahid was rushed to Garkha State Dispensary situated at a distance of about 9 K. Ms. from the village Sadhpur where such occurrence took place at about 3 in the after-noon. An information was sent to garkha police. A Sub-Inspector of police named Uma Kant Ram went there and recorded his fardbeyan/f. I. R. Ext.4) on the same day at 4.20 P. M. The local Circle Officer was also called and requested to record the dying declaration of the said Md. Sahid as his condition was serious. Consequently, the circle Officer of Garkha Police Station, namely, K. K. Ojha P. W.13) recorded the dying declaration of Md. Sahid at garkha State Dispensary on the same day at 4.45 P. M. Thereafter, injured Md. Sahid as his condition was serious. Consequently, the circle Officer of Garkha Police Station, namely, K. K. Ojha P. W.13) recorded the dying declaration of Md. Sahid at garkha State Dispensary on the same day at 4.45 P. M. Thereafter, injured Md. Sahid was transferred to Chapra Sadar hospital where he succumbed to the injuries on the same night. It may be mentioned that white the deceased was being assaulted by the appellants and their associates, his brother Md. Aleem (P. W.4) went to intervene and he was given a couple of lathi blows by appellant No.4. Even though in course of his f. I. R. and dying declaration the deceased had named only these appellants and prakash Singh as his assailants, the witnesses examined in court of investigation implicated one Bishwanath Singh, another brother of appellants No.2 and 3 as one of the assailants attributing dagger in his hand and assault to the deceased by means thereof. 3. On such facts, these appellants as well as Prakash Singh alias Pakar singh and Bishwanath Singh were charged under Sec.302, and in the alternative under Sec.302 read with section 149, I. P. C. for the murder of deceased Md. Sahid. Appellant No.4 sri Bhagwan Singh was further charged under Sec.323, I. P. C. for voluntarily causing hurt to P. W.4 Md. Aleem (sic ). The defence of the accused persons including the appellants was total denied of the occurrence in the manner alleged and their false implication. To prove the charges the prosecution examined as many as 16 witnesses including the Investigating Officer (P. W.16) and the two doctors, one of Garkha who had initially examined the deceased and P. W.4 at garkha State Dispensary, and the other of Chapra Sadar Hospital who had performed autopsy on the dead body of the deceased on 20-4-1979. Of the remaining witnesses while P. W.3 has been tendered for cross-examination, P. W.2 had witnessed seizure of some bloodstained articles and blood-stained soil from the place of occurrence and P. W.8 witnessed the inquest of the dead body of Chapra Sadar Hospital. P. Ws.9, 10 and 12 were of formal nature. P. W.14 a sub-Inspector of Bhagwan Bazar police station had held the inquest and prepared inquest report (Ext.8 ). The remaining prosecution witnesses, namely, P. W.1 Ram Awatar Thakur, P. W.4 md. P. Ws.9, 10 and 12 were of formal nature. P. W.14 a sub-Inspector of Bhagwan Bazar police station had held the inquest and prepared inquest report (Ext.8 ). The remaining prosecution witnesses, namely, P. W.1 Ram Awatar Thakur, P. W.4 md. Aleem, P. W.5 Raghubansh Rai, p. W.6 Ganesh Tewary and P. W.15 Md. Raseed came to the witness-box as eye witnesses to the occurrence. 4. On such evidence the learned addl. Sessions Judge of Saran at Chapra who held the trial, found that implication of accused Prakash Singh and Bish-wanath Singh was not satisfactorily proved and was at least of doubtful nature and acquitled them of the charges. He also doubted testimony of the prosecution witnesses regarding assault to the deceased by appellant No.4, therefore, he has also been acquitted of the charge of murder. However, he has been found guilty of voluntarily causing hurt to P. W.4 Md. Aleem and has been accordingly convicted and sentenced to undergo rigorous imprisonment for three months. The remaining appellants, namely, appellants No.1, 2 and 3, have been found guilty for commission of the murder of the deceased in furtherance of their common intention and have been convicted and sentenced, as indicated earlier. Against their conviction and sentence these appellants have come to this court in appeal. 5. Learned senior Counsel Sri raghubansh Pd. Singh appearing for the appellants has assailed the finding of the guilt and consequent conviction of the appellants by propounding an altogether a new theory for false implication of the appellants. According to him, P. W.1 Ram Awatar Thakur is at the root of false implication of the appellants. He was having illicit relationship with a married girl of the village, namely, Sushila Devi and the appellants were protesting to it. The deceased was murdered by somebody else and taking advantage of this fact P. W.1 has got these appellants falsely implicated to keep them out of his way in the affair which he was with Sushila Devi. He also contended that since the first information report and the dying declaration of the deceased do not bear his signatures and instead bear L. T. I. the documents are of doubtful nature. 6. P. W.7 Dr. He also contended that since the first information report and the dying declaration of the deceased do not bear his signatures and instead bear L. T. I. the documents are of doubtful nature. 6. P. W.7 Dr. B. N. Singh of Chapra sadar Hospital who had performed the autopsy on the dead body of the deceased, has stated that he had found a stitched wound of 1 1/2" in length on the back of the head, another stitched wound of the same length on the back of the head, multiple bruises of varying size of 1" x 1/2" to 7" x 1 1/4" on the back of the trunk, punctured wound of 1 1/3" x 3/4 x Peritoneum deep on the lower part of back of the trunk on the left side, punctured wound of 1 3/4" x 1/2" x 1" on the back of trunk in lower part on the left side of the vertebral column, lacerated wound of 3/4" x 1/4" on inher side of the cheek on the right side, and lacerated wound of 3/4" x 1/2" on the right cheek of the deceased. On opening the abdomen and exploring the injury he found on the lower part of the back on right side he found that; intestine was perforated in the size of 1/2" x 1/2" x lumen of intestine. All those injuries were of ante-mortem in nature. The doctor opined that the death of the deceased had occurred within 24 hours prior to the post-mortem examination due to haemorrhage and shock and injury to the intestine. He further stated that injury to the peritoneum and intestine was sufficient in ordinary course of nature to cause the death. 7. P. W.11 Dr. Ram Babu Gupta was stated that he had examined the deceased on 19-4-1979 at 5 P. M. at garkha State Dispensary and found the following injuries on the person of the deceased: (i) Punctured wound of, 1 1/2 x 3/4 pertioneum deep on the lower part of the trunk on the left side. (ii) Punctured wound of 1 1/2" x 1/2 x 1" on the back of trunk on inner part of left side of vertebral column. (iii) curved incised wound of 1 1/2" x 1/2" x 1/2" on occipital bone. (iv) Oblique incised wound of 2" x 1/2" x 1/2" on the junction of left parietal bone and occipital bone. (ii) Punctured wound of 1 1/2" x 1/2 x 1" on the back of trunk on inner part of left side of vertebral column. (iii) curved incised wound of 1 1/2" x 1/2" x 1/2" on occipital bone. (iv) Oblique incised wound of 2" x 1/2" x 1/2" on the junction of left parietal bone and occipital bone. (v) Lacerated wound of 1/2" x 1/4" x 1/4" on either side of cheek, i. e. , on both the sides of cheek. Those injuries were caused within six hours. Injuries No. (iii), (iv) and (v)were simple in nature. On being X, rayed injuries No. (i) and (ii) were later opined to be grievous in nature. Accord ing to him all those injuries were caused by some sharp-cutting weapons by bhala and knife. 8. He had also examined on the same day and about the same time P. W.4 and found an abrasion of 1" x 1/4" x 1/4" on posterior aspect of right elbow joint and confusions of 3" x 2" x 1", 2" x 1" x 1" and 2 1/2" x 1" 1/2" size on the left fore-arm. Those injuries were also found to be caused within six hours by some hard and blunt substance, like lathi. They were simple in nature. 9. P. W.16 S. I. Uma Kant Ram has stated that on 19-4-79 at 4.10 P. M. he had received pn O. D. slip from Garkha state Dispensary (regarding arrival of the deceased with injuries) and went there and recorded the statement (Fardbeyan) of Md. Sahid there. He read over the contents of the F. I. R. to the injured Md. Sahid who put his L. TI. Thereon on finding the same correct. The Fardbeyan of the deceased is Ext.4. He has also stated that he requisitioned the service of the local Circle Officer who arrived there and recorded the dying declaration of the deceased in his presence. He had found bandaged injuries on the person of the injured. He had also found injuries on the person of p. W.4 who was present at the State Dispensary. 10. P. W.14 Md. Asarar Khan, a Sub inspector of Bhagwanpur Bazar police station, has stated that on 20-4-1979 at 6.30 in the morning he had held inquest on the dead body of the deceased Md. Sahid at the Surgical Ward of Chapra sadar Hospital. 10. P. W.14 Md. Asarar Khan, a Sub inspector of Bhagwanpur Bazar police station, has stated that on 20-4-1979 at 6.30 in the morning he had held inquest on the dead body of the deceased Md. Sahid at the Surgical Ward of Chapra sadar Hospital. The dead body was lying on Bed No.26. The inquest report prepared by him is Ext.8. 11. In course of his evidence P. W.16 has stated that after registering a case at the police station he went to village sadhpur the same day and reached there at 630 P. M. He inspected the place of occurrence on being pointed out by one md. Ibrahim who happens to be the son of the deceased. According to him, the place of occurrence was a vacant land situated adjacent east to a ditch towards westerly end of village Sadhpur. In the ditch he had found grown some plants of Bankat. Those plants were found trampled. He had also found blood fallen on the vacant land on the bank of that ditch. He seized some trampled plants, blood-stained earth and piece of tile in presence of witnesses and prepared a seizure list (Ext.11 ). RW.2 has also testified his fact. Therefore, from the evidence Of these witnessses it becomes manifest that deceased Md. Sahid had been fatally wounded at village Sadhpur near a ditch by some inimical hand/hands sometime in the day on 19-4-1979 and succumbed to those injuries at Chapra Sadar Hospital where to he had been transferred, during the, night that followed. 12. The prosecution alleges that the deceased was killed by these appellants and their two other associates, prakash Singh and Bishwanath Singh. On the other hand, the defence could not come forward with any plea regarding the manner in which the deceased had met his death. However, in course of argument learned senior Counsel for the appellants submitted that the deceased had been killed by somebody else and the appellants and two others were falsely implicated at the instance of P. W.1 Ram Awatar Thakur, as these appellants were against his conduct of having illicit relationship with a married girl of the village named Sushila Devi. However, in course of argument learned senior Counsel for the appellants submitted that the deceased had been killed by somebody else and the appellants and two others were falsely implicated at the instance of P. W.1 Ram Awatar Thakur, as these appellants were against his conduct of having illicit relationship with a married girl of the village named Sushila Devi. From the impugned judgment one finds that in the court below an attempt had been made to persuade the trial court that the deceased had been murdered by someone because he was himself having illicit relationship with the said Sushila devi. The learned Trial Judge found the plea quite unacceptable, and rightly so, because when the witnesses were in the witness-box in support of the allegations against these appellants and their associates, there was not even a whisper on their behalf in course of the cross-examination of those witnesses. As regards the theory propounded by the learned senior Counsel before us, 1 am constrained to say that it is equally meritless. There is nothing to indicate in the evidence of the prosecution witnesses or even in the statements of the accused persons when examined under section 313 of the Code of Criminal procedure that the deceased and the other eye-witnesses were under the influence of P. W.1. Equally there is nothing to indicate that P. W.1 is a person of such influence and clout that P. W.13, the Circle Officer of Garkha, and P. W.16, the Sub-Inspector of Garkha police station, could have fabricated the documents like the dying declaration and the fardbeyan of the deceased to falsely implicate the appellants and their two other associates. This apart, the occurrence had undisputedly taken place in broad daylight at about 3 in the afternoon. The injuries found on the person of the deceased were of such nature, that is, caused by some sharp-cutting weapons like bhala and lathi that he could have, certainly noticed his assailants. Human nature as it is the victim of the fatal assault would not have spared his real assailant or assailants for falsely implicating these appellants and prakash Singh only to please P. W.1 especially when he had himself no sort of enmity with the accused persons. 13. On their part P. Ws.1, 4, 5, 6 and 15 have stated that these appellants were the assailants of the deceased. 13. On their part P. Ws.1, 4, 5, 6 and 15 have stated that these appellants were the assailants of the deceased. Besides these appellants, according to these witnesses, two others named Prakash Singh and Bishwanath Singh had also participated in the assault and inflicted lathi and dagger blows respectively. P. W.1 has stated that he had developed love with Sushila Devi, a married daughter of one Jai Narayan Sao of village Rasoolpur who had shifted to village Sadhpur about two years back and was residing in a house belonging to appellants No.2 and 3. He eloped with her to Siliguri and remained there for a few months and then sent back the girl to his village accompanied by his younger brother and after sometime he himself came back and married the girl even though she was already married to one Jageshwar Sah of village Naygaon. On the day of the occurrence he was standing outside his house when two young boys of the family of appellants No.2 and 3 who are related inter se as full-brothers named Bhulan and Munna arrived there and the former made a taunt on him stating that he was roaming in the village like Hero. He had also abused him by saying "sala". At this he protested and chastised him. Both the boys returned home and complained to appellant No.3 Bachha Singh. Therefore, these appellants accompanied by Bishwanath Singh and Prakash Singh alias Prakar Singh arrived there. Appellants No.1, 2 and 3 were armed with bhala, Bishwanath Singh was carrying a dagger and appellant No.4 and Prakash Singh were armed with lathis. They rushed to assault him. Consequently, he fled and cried for help. The deceased intervened and protested. Therefore, six persons assaulted him. He has stated that appellants No.1,2 and 3 struck a bhala blow each on the person of the deceased thereafter appellant No.4 and Prakash Singh struck him with lathi and then pushed inside the ditch where he fell down and Bishwanath Singh had given a couple of dagger blows on his person. When P. W.4 arrived there to rescue his brother Md. Sahid (deceased), appellant No.4 struck him with lathi. When villagers assembled there and protested the accused persons fled away. 14. When P. W.4 arrived there to rescue his brother Md. Sahid (deceased), appellant No.4 struck him with lathi. When villagers assembled there and protested the accused persons fled away. 14. P. WS.4, 5, 6 and 15 have made similar statements on oath alleging that their attention was attracted towards the assailants and the deceased when P. W.1 was running away on being chased by the appellants and two others named Prakash Singh and Bishwanath Singh. As P. W.1 cried for help, the deceased intervened and showed inclination not to allow the assailants to assault P. W.1. The accused persons started assaulting him. Except P. W.15 who is son of the deceased, the other three witnesses have stated that appellants No.1, 2 and 3 struck a bhala blow each on the person of the deceased near the ditch towards east thereof followed by lathi blows by appellant No.4 and Prakash Singh. When he was pushed inside the ditch, co-accused Bishwanath Singh stabbed him with dagger. In the first information report itself P. Ws.1, 4, 5 and 6 have been cited as persons who had witnessed the assault on the deceased. As regards. P. W.15 he was not named either in the first information report or in the dying declaration of the deceased as one who had seen the occurrence. On his part P. W.15 has stated that he was returning after attending the call of nature and witnessed the entire occurrence from a distance of 50 to 60 feet towards west of the ditch. He has also stated that appellants No.1,2 and 3 were armed with bhalas, appellant No.4 and Prakash Singh with lathis and Bishwanath Singh with dagger, they had surrounded his father and were assaulting him. Although other witnesses have attributed specific injuries inflicted by each of the accused persons, P. W.15 could not say which of the accused persons had inflicted injuries to his father at which part of the body. 15. On going through the evidence of the witnesses, referred to above, I find that apart from the fact that except p. W.15 the rest were named in the F. I. R. itself as witnesses to the occurrence, the defence has failed to show that they had any animus against these appellants and other two accused persons who have since been acquitted. There was an attempt by the defence to show that P. W.5 had a grudge against appellants Jamuna singh and Bachha Singh as they had deposed against him in a criminal case of theft instituted by one Rameshwar mahto. The witness denied this fact even though he admitted that Rameshwar Mahto had instituted such a case against him. The defence failed to prove by producing any document that appellants No.1 and 3 had deposed against him in such proceeding. They are residents of the same village. Indeed, P. W.6 is residents of a tola of the same village called Mobarakpur. It was suggested to him that he had deposed in a case against the appellants on being paid for it. The witness denied the suggestion. Since the witness was already named in the F. I. R. which was lodged within a couple of hours after the occurrence had taken place, there was no possibility of P. W.5 being purchased for being a witness to the occurrence. Besides, it is manifest from the evidence of the other witnesses and that of P. W.11 that P. W.4 who happens to be the full brother of the deceased had himself sustained injuries at the hands of one of the appellants, namely, appellant No.4, in course of the same occurrence when he went to intervene or rescue his brother when he was being assaulted. The injuries found on the person of P. W.4 only lend an assurance that he had seen the assault being made on his deceased brother. 16. Indeed, all the aforesaid eyewitnesses of the occurrence have tried to implicate one Bishwanath Singh who happens to be another brother of appellants No.2 and 3 by introducing him at the scene of the occurrence armed with a dagger inflicting blows on the person of the deceased when he fell down in the ditch on being pushed by the assailants or otherwise. The learned Trial Judge has rightly disbelieved this part of the evidence of these witnesses. The strongest ground for disbelieving the evidence of these witnesses implicating accused Bishwanath Singh is the omission by the deceased to name him as his assailant either in his first information report (Ext.4) or in the dying declaration (Ext.9) recorded by the Circle Officer soon thereafter. These two documents came into existence within a couple of hours when there was no opportunity to deliberate. These two documents came into existence within a couple of hours when there was no opportunity to deliberate. Had accused bishwanath Singh been one of the assailants of the deceased or present anywhere near the place of occurrence, the dying man could not have omitted to name him. Therefore, I find that the learned Trial Judge has rightly disbelieved this part of the evidence of the prosecution witnesses and has acquitted the said Bishwanath Singh of the charge of murder of the deceased. However, on this ground alone the entire testimony of these prosecution witnesses, which is otherwise found truthful cannot be discarded as untrustworthy, particularly when it finds support and corroboration in the first information report and the dying declaration of the deceased. 17. Indeed, a first information report is not a substantive piece of evidence in a criminal trial, but since the maker thereof died soon after it was recorded this document becomes a dying declaration within the meaning of section 32 of the Indian Evidence Act and is a valid evidence which can be used as a dying declaration of a dying man. As indicated earlier, this statement was recorded by P. W.16 at 4.20 P. M. on the day of the occurrence itself, i. e. within two hours of such occurrence at the State Dispensary. According to this document when these appellants and prakash Singh were chasing P. W.1 armed with Bhalas and lathis, he intervened. Therefore, appellants No.1, 2 arid 3 struck him With bhalas which they were armed with and appellant No.4 and Prakash Singh gave lathi blows on his person due to which he fell down. The deceased had also stated that he had sustained bhala injuries on his back and abdomen and lathi injuries on his head and back. The dying declaration as recorded by P. W.13 which is Ext.9 also shows that these appellants and Prakash singh were chasing P. W.1 armed with knife and bhala. He intervened and protested. As P. W.1 escaped, those five persons started assaulting him. Appellants 1, 2 and 3 struck with bhalas while the remaining two struck with lathis. He stated that he had received injuries on his back. The two dying declarations made by the deceased at Garkha State dispensary are consistent with each other regarding the manner of assault and participation of five persons including these appellants. Appellants 1, 2 and 3 struck with bhalas while the remaining two struck with lathis. He stated that he had received injuries on his back. The two dying declarations made by the deceased at Garkha State dispensary are consistent with each other regarding the manner of assault and participation of five persons including these appellants. Indeed, there is nothing to indicate that these statements were recorded in presence of any doctor, particularly P. W.11, at Garkha state Dispensary. But for that reason alone these documents cannot be discredited as not genuine or of doubtful veracity, specifically when there is nothing to indicate that at the time the statemeats imputed to the deceased were made he was not in his senses or he was hot mentally fit to make such statements. At least two of the witnesses other than P. Ws.13 and 16 have stated that those statements were made in their presence. It was not/even suggested to them, much less to the persons who recorded the dying declarations, that the deceased was not in fit state of mind to make such statements. The only criticism advanced by the learned senior counsel for the appellants before us is that they bear the L. T. I. of the deceased and not his signature. However, there is nothing on the record to show that the deceased was literate capable of putting his signature. I find no force in the contention of the learned Counsel for the appellants that since the deceased happened to be the Sarpanch of the village, he was necessarily a literate person. The learned Counsel has failed to show any rule or law that for becoming a Sarpanch or any functionary of Gram panchayat or Gram Kutchery one has to be literate. 18. Thus, I find no reason to disbelieve the two dying declarations of the deceased, one recorded by P. W.16 as f. I. R. , and the other by P. W.13 as a dying declaration. In course of his evidence P. W.13 has specifically stated that before recording the dying declaration of the deceased he was fully satisfied that the maker thereof was in fit state of mind and capable of speaking. Even P. W.7 has stated that when he opened the head of the deceased, he found that there was no fracture to the skull or hematoma or injury to the brain of the deceased. Even P. W.7 has stated that when he opened the head of the deceased, he found that there was no fracture to the skull or hematoma or injury to the brain of the deceased. Therefore, even though the deceased had sustained multiple injuries, two of which were punctured wounds, the brain was not the least af fected so as to make him either senseless or incapable of making statements imputed to him. P. W.13 has also stated that he recprded the statement in the same sequence as the deceased made it; in other words, it was reduced in writing in the words of the deceased as practicable as possible. Of course, it is in the form of narration and not in the form of question and answer. But on that ground alone the dying declaration which is otherwise found truthful, cannot be discredited and discarded. 19. The eye witness account of p. Ws.1, 4, 5, 6 and 15 coupled with two dying declarations of the deceased: one recorded by the Investigating Police Officer and another by P. W 13 leave little room to doubt the genuineness of the prosecution version that these appel lants and one Prakash Singh were responsible for killing the deceased by inflicting injuries by means of bhalas and lathis. The question next arises what offence was committed by the appellants and co-accused Prakash Singh who has not been acquitted. Thus, the appellants and Prakash Singh were charged under Sec.302, I. P. C. , for committing murder of deceased Md. Sahid and in the alternative they were charged under Sec.302 read with Section 149, I. P. C. for causing the said murder in prosecution of the common object of the unlawful assembly which they had formed. Unfortunately, the evidence of the prosecution witnesses did not find favour with the learned Additional Sessions Judge as respects participation of appellant No.4 and co-accused Prakash singh in inflicting fatal injuries to the deceased. Apart from the fact that in both the dying declarations the deceased had specifically imputed overt acts on the part of appellant No.4 and co-accused Prakash Singh in inflicting lathi injuries to him, P. Ws.1, 4 and 6 also specifically stated that appellant no.4 and co-accused Prakash Singh had inflicted lathi injuries on the person of the deceased. Apart from the fact that in both the dying declarations the deceased had specifically imputed overt acts on the part of appellant No.4 and co-accused Prakash Singh in inflicting lathi injuries to him, P. Ws.1, 4 and 6 also specifically stated that appellant no.4 and co-accused Prakash Singh had inflicted lathi injuries on the person of the deceased. P. W.1 has stated that prakash Singh and Bhagwan Singh had given lathi blows on the head and bodies of the deceased. So had said P. W.4 that he stated that both of them had showered their lathis on the back and head of the deceased indiscriminately. P. W.6 hasalso stated that appellant No.4 had given lathi biow on the temple of the while co-accused Prakash Singh had struck him on, His back and no other part. Of course, P. W.5 had not stated specifically as to on which part of the body of the deceased these two accused persons had inflicted tathi blows. P. W.15, likewise, had made a general type of statement that they had also assaulted his father by means of lathis even in the face of such evidence, which could not be found to be tainted, the learned addl. Sessions Judge has held that appellant No.4 and co-accused Prakash singh did not participate in the assault oh the deceased. Consequently, he has acquitted appellant No.4 and co-accused Prakash Singh of the charge under Sec.302 I. P. C. and the alternative charge under Sec.302 read with section 149, I. P. C He has, however, convicted appellants No.1, 2 and 3 for the said murder by invoking the provisions of Sec.34, I. P. C. , probably, because of some decisions of some high Courts and the Apex Court that if the number of accused persons falls short of five due to acquittal of some of them, no conviction can be made by invoking the provision of Sec.149, i. P. C. . 20. For discarding the evidence of eye witnesses regarding assault to the deceased by appellant No.4 ahd co-accused Prakash Singh, the learned Addl. Sessions Judge appears to have been swayed by the evidence of P. W.11 Dr. Ram Babu Gupta of Garkha State Dispensary that even though he had examined the person of the deceased before being transferred to Chapra sadar Hospital, where he had not found on his person any injury caused by nard and blunt substance. Sessions Judge appears to have been swayed by the evidence of P. W.11 Dr. Ram Babu Gupta of Garkha State Dispensary that even though he had examined the person of the deceased before being transferred to Chapra sadar Hospital, where he had not found on his person any injury caused by nard and blunt substance. After scanning the evidence of the prosecution witnesses vis~a-vis the medical evidence the learned Addl. Sessions Judge had recorded the following finding: "even according to the evidence of the P. Ws. i it would appear that Prakash singh and Sri Bhagwan Singh accused had given lathi blows at the back and head of Md. Sahid. PW.1 has said that accused Prakash Singh and Sri Bhagwan singh accused assaulted the deceased with lathi blows causing injuries at the back and head. RW.4 Md. Allim who is the full brother of Md. Sahid deceased has said at para 5 of his. evidence that Md. Sahid was being assaulted indiscriminately (Taratar) on his head and back. RW.5 raghubansh Rai and stated before the i. O. (RW.16) that Sri Bhagwan Singh and prakash Singh accused has assaulted md. Sahid at his head and on the back. Similarly RW.6 Ganesh Tiwary had stated before the I. O. that accused Bhagwan singh had assaulted Md. Sahid on his head and at the back. This evidence is belied by the testimony of the medical officer p. W.11 Mr. Gupta who did not find any injury on the person of Md. Sahid having been caused by lathi blows. Dr. B. K. Singh who conducted the autopsy on the dead body of Md. Sahid also did not find any injury on the head having been caused by lathi blows when there is a definite evidence of Md. Allim (RW.4) that the accused Sri Bhagwan Singh and Sri prakash Singh assaulted Md. Sahid indiscriminately (Taratar) with lathi at the head and back of Md. Sahid. The fact that no injury was found on the person of Md. Sahid by the medical officer of Garkha state Dispensary Mr. Gupta, having been caused by lathi blows, this part of the prosecution version does not appear to be correct. " 21. In wish fully accepting the testimony of P. W.11 that he had not found any injury on the person of the injured/deceased particularly on back, the learned Addl. Sahid by the medical officer of Garkha state Dispensary Mr. Gupta, having been caused by lathi blows, this part of the prosecution version does not appear to be correct. " 21. In wish fully accepting the testimony of P. W.11 that he had not found any injury on the person of the injured/deceased particularly on back, the learned Addl. Sessions Judge appears to have completely ignored the evidence of p. W.7 who had held autopsy on the dead body of the deceased. It will be meaningful to note that P. W.7 had found multiple bruises of the size varying from 1" x 1/2" to 7" x 11/4" on the back of the trunk of the deceased, all of them antemortem in nature and caused by hard and blunt substance like lathi. Simply because P. W.11 stated that he had not found any such injury the learned Addl. Sessions Judge has chosen to place implicit reliance on this finding of P. W.11. In this connection it may be mentioned that there was no whisper by the defence that the finding of injuries on the person of the deceased as recorded in post-mortem report and reproduced in Court on oath was either collusive or in any way tainted. The overwhelming evidence of eye witnesses was that the deceased had been given indiscriminate blows by means of lathi by appellant No.4 and co-accused Prakash Singh. Therefore, there was absolutely no occasion for the learned Addl. Sessions Judge to disbelieve this part of the prosecution story and acquit both of them of the charge of murdering the deceased, even in prosecution of the common object of the unlawful assembly which, undoubtedly, they had formed while assaulting the deceased and his brother. Besides multiple bruises on the person of the deceased. P. W, 7 had found two lacerations on both the cheeks of the deceased. They were, certainly, caused by hard and blunt substance and were ante-mortem in nature. When the dead body was put to autopsy P. W.7 had found two stitched wounds of 1 1/2" length on head including back of head. Of course, in his evidence P. W.7 has stated that those head injuries might have been possible by chhura or by knife. But he was not very much specific on this point. When the dead body was put to autopsy P. W.7 had found two stitched wounds of 1 1/2" length on head including back of head. Of course, in his evidence P. W.7 has stated that those head injuries might have been possible by chhura or by knife. But he was not very much specific on this point. As a matter of fact, he could have not been because of the fact that those two injuries had undergone surgical interference before being stitched. In course of his evidence P. W.11 has also stated that he had found a curve incised wound on the occipital bone and oblique incised wound on the junction of left parietal and occipital bones. He had opined that those injuries could have been caused by some sharp-cutting weapon. Injuries on head specially to the scalp are very often deceptive. Even a lacerated wound caused by hard substance on scalp looks like incised wound. Only by examination by hair bulbs it could be said with certainly whether such injury could have been caused by hard and blunt substance or by a sharp-cutting weapon. Indeed, P. W.11 was not examined on this point in detail. However, the fact remains that the eye-witness account is that those injuries were caused by shoring lathis by appellant No.4 and co-accused Prakash Singh. The law is settled that medical evidence is only corroborative and if thereis preponderance of eye witness account with respect to weapon used, in face of quite different opinion of the doctor, the former, that is, the eye-witness account has to prevail. Even p. W.11 had found lacerated wounds on either side if the cheek, i. e. , on both cheeks of the injured/deceased when he examined him at the State Dispensary prior to his death. It is common knowledge that lacerations are caused by hard and blunt weapons and not by sharp-cutting weapon like bhala. Still p. W.11 has stated that those lacerations were caused by sharp-cutting weapon like bhala and chhuri. This shows that p. W.11 had not even the elementary knowledge of medical jurisprudence. A person having sustained punctured wounds on the vital part of his body with serious condition had reached the state Dispensary. Still p. W.11 has stated that those lacerations were caused by sharp-cutting weapon like bhala and chhuri. This shows that p. W.11 had not even the elementary knowledge of medical jurisprudence. A person having sustained punctured wounds on the vital part of his body with serious condition had reached the state Dispensary. Therefore, it was neither possible, nor permissible, for p. W.11 to scan the entire body of the injured to find out of he had any injury on his back or any other part which was hidden or covered. Only the bleeding injuries could have attracted the attention of the treating medical man. Therefore, i am quite unable to take seriously the statement of P. W.11, in course of his cross-examination, that he had examined Md. Sahid thoroughly and carefully. 22. Be that as it may, the fact remains that appellant No.4 and co-accused Prakash Singh stood acquitted by the trial court, even though, on grounds which are found to be quite invalid and unacceptable. However, the remaining three of the accused persons, namely, appellants No.1, 2 and 3, have been held guilty for the commission of the said murder in furtherance of their common intention. The question arises what offence did they actually commit. For convicting appellants No.1, 2 and 3 under Sec.302 read with Sec.34 i. P. C. the learned Addl. Sessions Judge has observed that common intention can develop at the scene of the occurrence itself. The accused persons had been charged, even though alternatively for commission of the murder in prosecution of their common object. A common object is different from common intention in that it does not require prior concert and common meeting of minds before they attack; and an unlawful object can develop after they got there. In other words, for common intention it is necessary that there should be a pre-concert or meeting of the minds of more than one person for commission of certain crime. However, it is not so necessary for common object which can develop at the scene of the occurrence itself. In the present case the story of the prosecution goes that these appellants and co-accused Prakash singh were chasing P. W.1 Ram Awatar thakur to assault him. In the meantime, the deceased intervened and invited their ire. Therefore, they decided to assault the deceased himself. Three of them were armed with bhalas and two with lathis. In the present case the story of the prosecution goes that these appellants and co-accused Prakash singh were chasing P. W.1 Ram Awatar thakur to assault him. In the meantime, the deceased intervened and invited their ire. Therefore, they decided to assault the deceased himself. Three of them were armed with bhalas and two with lathis. All of them inflicted blows on the person of the deceased by means of the weapons they were carrying. The injuries proved fatal. Therefore, it is manifest that the common object of the assailants to kill or even fatally wound the deceased developed after he intervened. Therefore, there could be no preconcert or meeting of minds of the assailants so as to bring the case within the purview of Sec.34, I. P. C. In this view of the matter, the conviction of appellants No.1, 2 and 3 under Section 302 read with Sec.34, I. P. C. does not appear to be proper. 23. Taking view learned Counsel for the appellant submitted that there is preponderance of evidence that the injury to the abdomen of the deceased, which is itself was sufficient in ordinary course of nature to result in the death of the deceased, was caused by appellant no.3 Bachcha Singh. Therefore, only he can be held guilty and convicted for the murder under Sec.302, I. P. C. Appellants No.1 and 2 could in no case be fastened with- the various liability of the murder by invoking the provision of section 34, I. P. C. at best, they can be held guilty of voluntarily, causing hurt by means of a sharp-cutting weapon like bhala punishable under Sec.324, i. P. C. , or in any event, under Part II of section 304 I. P. C. because there was no repetition of blows by any of them. It may be relevant to note that P. W.7 has stated that in his opinion death of the deceased had been caused due to haemorrhage and shock and injury to the intestine. Indeed, he has stated that the injury to intestine alone. was sufficient to cause the death in ordinary course of nature. The fact, however, remains that the death had occurred due to shock and haemorrhage resultant from the cumulative effect of all the injuries including those inflicted on head and other parts of the body attributed to appellants No.1, 2, 4 and co-accused prakash Singh. 24. was sufficient to cause the death in ordinary course of nature. The fact, however, remains that the death had occurred due to shock and haemorrhage resultant from the cumulative effect of all the injuries including those inflicted on head and other parts of the body attributed to appellants No.1, 2, 4 and co-accused prakash Singh. 24. I have already indicated above that the evidence on record is quite sufficient to hold that the deceased had been inflicted injuries by these appellants and Prakash Singh and ultimately he succumbed to those injuries. In other words, five persons including these appellants had formed an unlawful assembly and in prosecution of the common object of such assembly fatal injuries had been inflicted by all of them. Even though, according to P. W.7, the injury attributed to appellant No.3 in itself was sufficient in ordinary course of nature to result in the death. Following the principles laid ddwn in the case of Brathi alias Sukhadev Singh V/s. State of punjabi, AIR 1991 SC 318 , the Apex court has held in the case of Golla Ullanna and Anr, V/s. State of Andhra Pradesh, air 1996 SC 2727 , that "before. Sections 34, 149 or 120-B can be applied, the Court must find with certainty that there were at least two persons sharing the common intention or five person sharing the common object or two persons entering into an agreement. The principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons; it depends upon proof Of facts beyond reasonable doubt which makes such a principle applicable. This Court has also held that in the matter of appreciation of the evidence the powers of the appellate court are as wide as that of the Trial court. It has full power to review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the Appellate Court to indirectly or incidentally find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. Where the evidence examined by the appellate Court unmistakably proves that the appellant was guilty under Sec.34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the Appellate Court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that findings". Their lordships have further proceeded on facts of the case before them to observe that "the High Court has recorded a categorical finding, after reappreciating the evidence, that accused Nos.5 and 7 were wrongly acquitted by the learned sessions Judge. Therefore, even after the acquittal of accused Nos.4; 6, 8 and 10 the High Court was justified in proceeding on the basis that there were more than five persons out of the named accused who had participated in the assault on the deceased and confirming the conviction of accused Nos.9 and 11 under Sec.302 read with Sec.149 I. P. C. " 25. In the present case also on an appraisal of the evidence, both oral and documentary, I find no hesitation in coming to the conclusion that all the five accused persons, namely, these appellants and co-accused Prakash Singh, who has been wrongly acquitted by the trial Court, had participated in the occurrence of assault which resulted in the death of the deceased. Thus, the number of the assailants was five. Their object being unlawful to fatally assault the deceased, they had formed an unlawful assembly And the murder was committed by them in pursuance of their common object. Therefore, by invoking the provision of section 149, I. P. C. all of them could have been convicted for the said murder. However, two of them, namely, appellant No.4 and co-accused prakash Singh, stood acquitted of the charge of the murder. There being no appealby the State Goyernment against their acquittal, they cannot be convicted for commission of the said offence. However, two of them, namely, appellant No.4 and co-accused prakash Singh, stood acquitted of the charge of the murder. There being no appealby the State Goyernment against their acquittal, they cannot be convicted for commission of the said offence. However, the remaining three of the participants of the unlawful assembly, namely, appellants No.1, 2 and 3, can, certainly, be held guilty of commission of the said murder in pursuance of their common object punishable under Sec.302 read with Sec.149 I. P. C. , as they were charged. In this view of the matter, the conviction of appellants No.1, 2 and 3 is altered to one under Sec.302 read with Sec.149 I. P. C. from that under Sec.302 read with section 34 I. P. C. As regards the conviction of appellant No.4 under Section 323 I. P. C. for voluntarily causing hurt to p. W.4 and the resultant punishment visited upon him I find no reason to interfere. 26. In the result, subject to the alteration indicated above, the appeal is dismissed. The bail of the appellants is hereby cancelled and they are directed to surrender before the trial court to serve out the remaining part of their sentences. Appeal Dismissed.