Judgment G.S.Chaube, J. 1. Sole appellant Govind Prasad Singh alias Govind Singh in Cr. Appeal No. 388/95 has been convicted by the 1st Addl. Sessions Judge of Banka in Session Case No. 229/77 under Sections 148. 302 and 307 of the Indian Penal Code ("the Court" in short) and have been condemned to death for offence under Section 302 of the Code. He has been further sentenced to undergo imprisonment for life for the offence under Section 307 of the Code. No separate sentence has been passed for his conviction under Section 148 of the Code. Consequently, his sentence of death has been referred to this Court by the trial Court for confirmation under Section 366 of the Code of Criminal Procedure and the said reference has been registered as Death Reference No. 2/95. 2. The appellants other than appellant No. 9 in Cr. Appeal No. 395/95 are convicted in same sessions case under Sections 147. 302 read with Section 149 and 307 read with Section 140 of the Code and have been sentenced to undergo imprisonment for life for the offence under Section 302 read with Section 149 and rigorous imprisonment for seven years for the offence i-nder Section 307 read with Section 149 of the Code. No Separate sentence has been awarded to them for the offence under Section 147 of the Code. Appellant No. 9 Gulli Rai @ Gulabi Rai has. however, been convicted under Sections 302 and 307 with the aid of Section 149 of the Code and sentenced to the same terms of imprisonment as his co-appellants. The sentences of all the appellants aire directed to run concurrently. 3. The prosecution case as disclosed in the first information report lodged by Chawkidar Mahadeo Hajra of village Baratikar with Banka police at 1 .(X) p.m. on 23.11.1969 is that there was a piece of land measuring about 10 katlias at village Khaira within Banka Police Station in the district of Bhagalpur (now Banka). the ownership of which was in dispute between Narain Singh (Kahar) and his agnate Laxman Singh, Both of the same village. Paddy crops had been grown over the said piece off land. the ownership of which was in dispute between Narain Singh (Kahar) and his agnate Laxman Singh, Both of the same village. Paddy crops had been grown over the said piece off land. In the morning on that day, i.e. 23.11.1969, while the said Chawkidar was away from his village the said Laxman Singh, his two sons and 3 to 4 others were getting the paddy crops of the said disputed piece of land harvested with the help of 5 to 7 reapers. Laxman Singh and his associates were then armed with weapons. His agnate Narain Singh (deceased) went to the field with his wife and his younger brother"s wife to lodge protest . It led to an altercation between the parties. Consequently, Laxman Singh killed deceased Narain Singh and inquired his wife and sister-in-law. According to the; first information report, when Chawkidar Mahadeo Hajra returned to his village from Phoolahra where he had been to the preceding night, he came to know of the occurrence and went to village Khaira to learn from a few villagers including appellant No. 7 Makeshwar Singh of what had happened there. Consequently, he went to the paddy field to find Narain Singh lying dead and the two women of his family, namely, wife and sister-in-law. severely injured. The neck of deceased Narain Singh was also almost completely slit. He also found paddy crop from an area of about half a katha harvested on the western side of the disputed field. Leaving the dead and the injured at the paddy field where they had fallen, the Chawkidar Mahadeo Haja went to Banka police station and lodged the first information report (Ext. 1). 4. From the record of the Court below it further transpires that a daughter (PW 2) and the niece (PW 4) of deceased Narain Singh tied from he village on seeing the occurrence. They reached a place called Pun-sia where they happened to come across PW 5 Deep Chandra Prasad Singh, a brother of the deceased Narain Singh, who was coming home from Sahebganj where he was engaged in some trade. They narrated the incident to him Consequently. PW 5 went to the place of the occurrence to find deceased Narain Singh and his daughter Debia Devi lying dead on the field. They narrated the incident to him Consequently. PW 5 went to the place of the occurrence to find deceased Narain Singh and his daughter Debia Devi lying dead on the field. He also found his own wife Gulabi Devi (PW 1) and the wife of his deceased brother named Manti Devi (PW 3) lying with injuries on their person. He took the two injured to Banka Sub-Divisional Hospital where they were treated. Their dying declarations were also recorded by a magistrate. On getting information a Sub-In-spector of Banka police station also went there and recorded their statements, in course of which complicity of several persons including Laxman Singh and his two sons appellants Govind Singh and Kamala Singh was disclosed. 5. On completion of investigation police submitted charge-sheet against as many as 37 persons out of whom 4 including Kamala Singh s/o Laxman Singh were shown absconders. The persons charge-sheeted included even the first informant Chawkidar Mahadeo Hajra who subsequently died. 32 of them were committed to the Court of Sessions, out of whom 3 died before commencement of trial. Therefore, only 29 were put on trial and charges under various heads were framed against them on 14.11.1979. In course of their trial 7 more died. Thus, only 22 of the accused persons faced full trial. On conclusion of trial 1! of them stood acquitted by the trial Court on the ground that they were either not named by any of the prosecution witnesses or were named by only one of them. However, the present appellants were held guilty and convicted and sentenced in the manner indicated here in-be fore. Hence, the death reference and two appeals by the convicted accused persons, which are being disposed of by this common judgment. 6. Learned counsel appearing for the appellants have submitted that the prosecution evidence on which the convictions of the appellants have been based is full of infirmities. Hence, the death reference and two appeals by the convicted accused persons, which are being disposed of by this common judgment. 6. Learned counsel appearing for the appellants have submitted that the prosecution evidence on which the convictions of the appellants have been based is full of infirmities. Even though a large number of witnesses were cited as such in the charge-sheet only 5 members of the single family of the deceased and the injured have been examined in the case: the Magistrate and the Police Officer who recorded the statements of PWs I and 3 at Banka Sub-Divisional Hospital at the earliest have been withheld and the same has resulted in serious prejudice to the defence, even the first informant has not been brought to the witness box nor by Dy. Superintendent of Police who had examined the witnesses in course of supervision. It has been submitted that in Court the witnesses have tried to shift the place of the occurrence from paddy field to a nearby well even though there could be no ocular evidence to prove it. 7. The witnesses who have been brought to the witness box for proving the guilt of the appellants are, besides the Investigating Officer (PW 6) and a Compounder of Banka Sub- Divisional Hospital (PW 7), the widow of deceased Narain Singh (PW 3). his daughter Sabitri Devi (PW2), the brother of the deceased (PW 5) and the wife (PW 1) and daughter (PW 4) of PW 5. Out of them, admittedly PW 5 was not present at the place of the occurrence. He came to learn of what had happened at the piace occurrence from PW 2 Sabitri Devi and PW 4 Suputri Devi, who were then hardly 8 to 12 years old. However. PWs I. 2. 3 and 4 claimed to be the witnesses of the occurrence and two of them namely. PWs 1 and 3, were indisputably injured in course of the same occurrence. PW 1 has said that at about 7 or 10 in the morning on the day of the occurrence which was a Sunday deceased Narain Singh went to the well situated close to his house for washing his hands and face after retumtnc from the call of nature. PW 1 has said that at about 7 or 10 in the morning on the day of the occurrence which was a Sunday deceased Narain Singh went to the well situated close to his house for washing his hands and face after retumtnc from the call of nature. While he was washing his hands and face at the well appellants Kanchan Rai and Gulli Rai @ Gulabi Rai arrived there and hurled sticks at deceased Narain Singh. Immediately about 20 to 25 others including appellants Govind Singh. Shivnandan Singh, Kanhai Singh. Radhev Singh, Anup Lai Singh, Jittan Singh and Makcshwar Singh also arrived there and surrounded him. At the well appellant Govind Singh struck deceased Narain Singh with sword on his neck, co-accused Laxman Singh (since dead). Kamala Singh (since absconding) and appellant Gulli Rai also struck the said Narain Singh by means of Bhala and lathis. After killing Narain Singh at the well the accused persons carried his dead-body to the disputed paddy field situated at a short distance from that well. She further said that accompanied by PW 3 and deceased Debia she went to the rescue of Narain Singh hence appellant Govind Singh struck deceased Debia with sword suiting her neck. She was herself assaulted by co-accused Laxman Singh and Kamala Singh, besides appellants Govind Singh. Kanchan Singh and Gulli Rai. PW 3 Manli Singh and co-accused Kamala Singh and Laxman Singh by Means of Bhala and sticks. After the assault the assailants fled away. At about 9.00 a.m. her husband (PW 3 to Hospital at Banka where they were treated. 8. PW 3 Manti Devi, widow of deceased Narain Singh and mother of deceased Debia. has also stated that when her husband was washing his hands and face to the well, the appellants and some others including Laxman Singh and Kamla Singh went there and assaulted him. His neck was cut and dead-body taken to the disputed paddy field, she was herself assaulted by co-accused Kamala Singh and Laxman Singh. Appellant Govind Singh cut the neck of deceased Debia. PW 2 Sabitri Devi, another daughter of PW 3 and deceased Narain Singh has stated that at the time of the occurrence which took place at about 8 in the morning, her fatherNarain Singh had gone to the wellg with a bucket for washing his hands and face. Accused persons including appellants Govind Singh. Radhev Singh. PW 2 Sabitri Devi, another daughter of PW 3 and deceased Narain Singh has stated that at the time of the occurrence which took place at about 8 in the morning, her fatherNarain Singh had gone to the wellg with a bucket for washing his hands and face. Accused persons including appellants Govind Singh. Radhev Singh. Kanchan Rai. Gulli Rai. Basant Rai and Bhudeo Singh went there variously armed and started assaulting her father. They were also accompanied by about 25 to 30 others. According to her. while appellants Gulli Rai and Kanchan Rai and some other accused caught hold of her father, appellant Govind Singh cut his neck hy using a sword. Thereafter assailants carried her dead father to the paddy field where her sister Dehia went and started crying. Her neck was also cut by appellant Govind Singh by hurling the same sword. Her mother and aunt, namely. PW 1 and 3, were also assaulted by the same set of assailants. PW 4 Suputri Devi has also made similar statements implicating among others, appellant Govind Singh. Kanchan Rai, Gulli Rai. Basant Rai, Kanhai Singh, Radhey Singh and Anup Lai Singh as the assailants. According to her. at first accused Gulli Rai and Kanchan Rai had hit her uncle Narain Singh hy burning their sticks on him and thereafter appellant Govind Singh cut his neck. When deceased Narain Singh fell down, 4 to 5 of the assailants carried him to the disputed paddy field where her mother, aunt and deceased Debia also went. On the field Debia was killed by appellant Govind Singh and her mother and aunt were also assaulted. Among the assailants she was specifically named appellants Govind Singh. Kanchan Rai. Gulli Rai. Radhey Singh, Anup Lal Singh, Kahhen Singh, Basant Rai, Bhudeo Singh and Shivnandan Singh, besides accused Laxman Singh and Kamala Singh. 9. Both PWs 2 and 4 have stated that after the occurrence was over they tied from the village and reached Punsia bus stand where they met PW 5 who was then coming home from Sahebganj. They narrated the incident to him. 9. Both PWs 2 and 4 have stated that after the occurrence was over they tied from the village and reached Punsia bus stand where they met PW 5 who was then coming home from Sahebganj. They narrated the incident to him. PW 5 has stated on his part that on the day of the occurrence while coming home from Sahebganj he dropped from the bus at Punsia where he met his daughter Suputri Devi (PW 4) and niece Sabitri Devi (PW 2) and learnt from them that deceased Narain Singh and Debia had been killed and their mothers injured. They had also disclosed to him the names of about two dozen assailants including appellants Govind Singh. Kanchan Rai. and Gulli Rai. besides accused Laxman Singh and Kamala Singh. He could not recollect while in the witness box the names of other assailants. According to the information given to him, appellant Govind Singh has but the necks of both the deceased persons by means of sword. With PWs 2 and 4 he went to the paddy field where he found his brother Narain Singh and niece Debia lying dead with cut injuries on their persons. He also found his wife (PW1) and sister-in-law (PW 3) injured. He look them to Banka Hospital where they were treated. 10. What PWs 1. 2. 3 and 4 have stated is fully corroborated by the evidence of PW 6 Narcsh Prasad Singh, the Investigating Officer in the case. After reccording the first information report at 1.00 p.m. on the day of the occurrence he went to the place of the occurrence situated on the eastern end of village Khaira at 4.30 p.m. He found the dead bodies of Narain Singh and Debia Devi lying on the disputed paddy field. According to him. the dead- body by Narain Singh was lying 7 cubit east of the western ridge and adjacent north to the southern ridge of the disputed paddy field with blood on the ground beneath the upper limb, particularly head, of the said deceased. Inquest report disclosed that the body of the deceased was smeared with mud. The dead-body of Debia Devi was lying at a distance of about 64 feet from south-eastern corner of the same field with blood on the ground. He had also found paddy crop partly harvested and partly standing. According to him. Inquest report disclosed that the body of the deceased was smeared with mud. The dead-body of Debia Devi was lying at a distance of about 64 feet from south-eastern corner of the same field with blood on the ground. He had also found paddy crop partly harvested and partly standing. According to him. the crop had been cut at four different places on the western side of the said field. While inspecting the place of the occurrence he had also found a country made loaded gun lying slightly north of the dead-body of Debia Devi. One live and two empty cartridges were also found towards east of that field. Three arrows and a basket full of brickbats were also found kept in the vicinity, in course of the investigation next day the Investigating Officer was shown the well at which deceased Narain Singh is said to be washing his hands and face when the assault on him began. It was at a distance of about 189 feet southwest of the paddy field where the dead bodies were lying in pool of blood. 11. From the evidence of PW 6 and the sketch may (Ext. 4) prepared by him at the place of the occurrence one finds that the Investigating Officer had found stains of blood across the paddy field of one Kallu Singh shown in the sketch map by Letters "H" and T. He had also found stains of blood towards south of a potato field shown by letters "F" and "E". He had also found evidence of blood on ground being covered by throwing ash and mud in a length of about 67 feet in between the well and the paddy field where the dead bodies were found. The distance is shown by letters D, E and E. F in the sketch map. It may, however, be necessary to mention that the lowest portion of the paper depicting the sketch map having been torn due to long lapse of time, letters W depicting well as also letters D and E depicting the length of blood stains concealed by throwing mud or plastering therewith are not to be found on the document. It may, however, be necessary to mention that the lowest portion of the paper depicting the sketch map having been torn due to long lapse of time, letters W depicting well as also letters D and E depicting the length of blood stains concealed by throwing mud or plastering therewith are not to be found on the document. However, from the description given in the sketch those points appear to be situated towards south-east of the dilapidated house of one Chhedi Singh which is shown situated east of the Rasta running adjacent east to the house of the deceased depicted by letter X. The Investigating Officer has stated that at the place of the occurrence he prepared inquest reports respecting both the dead bodies of Narain Singh and his daughter Debia Devi and sent the bodies to Banka Sub-Divisional Hospital for post mortem examination. The inquestion reports which are Exts. 3 and 3/1 corroborate the evidence of PW 6 on this point. 12. The prosecution failed to examine the doctor who held the autopsy on the twin dead bodies. However, the autopsy reports prepared by him have been admitted into evidence by the trial Court as Exts. 6 and 7 (their carbon copies are Exts. 6/1 and 7/1) on being proved by PW 7 Pasudeo Jha, a compounder to the Sub-Divisional Hospital at Banka. From the evidence of PW 7 it will appear that being a compounder working at the same Hospital under the doctor who conducted the post mortem he was well acquainted with his handwriting. The witness has also stated that Dr. N.K. Ghosh who had conducted the post mortem and prepared Exts. 6 and 7 had since retired from Government service and his whereabouts were not known. The post mortem was conducted on 24.11.1969 and the witness was examined on 1st of April, 1983. The learned counsel for the appellants have, however, disputed the admissibility of the autopsy reports in absence of the examination of the doctor in Court who held the autopsy and prepared those reports. It has been contended that since the ingredients of Section 32 of the Evidence Act necessary for admitting a document in evidence in absence of its maker are entirely lacking in the present case, the autopsy reports prepared by Dr. It has been contended that since the ingredients of Section 32 of the Evidence Act necessary for admitting a document in evidence in absence of its maker are entirely lacking in the present case, the autopsy reports prepared by Dr. N.K. Ghosh of Banka Sub-Divisional Hospital could not be admitted into and treated substantive evidence because a post mortem report is not a substantive piece of evidence and can be used only to corroborate the statement of the doctor in Court, which alone is substantive evidence. Therefore, it was submitted that once the autopsy reports become inadmissible, they cannot be looked into: and, thus, there remains no evidence to know as to what was the cause of the death. 13. The contention advanced on behalf of the appellants is not tenable on two grounds. First, where ocular evidence of witnesses is sufficient to establish death of the deceased in the manner alleged, autopsy or no autopsy it makes little difference. In the case of Kehar Singh and others V/s. State (Delhi Administration), 1989 East Cr C 304 (SC) : AIR 1988 SC 1883 . it has been held that in view of the clear evidence about the cause of the death post mortem examination loses all its significance. It becomes important only in cases where the cause of the death is to be established and in a matter of controversy. If the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is unnecessary even of have the post-mortem done by a medical officer. In the instant case there is consistent evidence of the eye-witnesses, two of whom were themselves the victim of assault in course of the same occurrence, that the necks of both the deceased were cut by using a sword, besides inflicting some other injuries on their persons. Ext. 3/1 is the inquest report respecting the dead body of deceased Narain Singh. The document discloses that the neck of the said deceased had been found cut almost completely and the head was attached with the trunk of the body with a thin part of the ligament towards front. Besides, there were other cut injuries as well on his neck and head. Likewise, the inquest report (Ext. 3) respecting deceased Debia Devi shows that her throat (neck) was also cut from the front. Besides, there were other cut injuries as well on his neck and head. Likewise, the inquest report (Ext. 3) respecting deceased Debia Devi shows that her throat (neck) was also cut from the front. Besides, she had some cut injuries on her left scapula, left fore-arm below elbow. left arm above elbow and left chin. In the circumstance, there can be little doubt that both the deceased had met with their respective death due to cut injuries inflicted on their necks by using weapon like sword. 14. Secondly, in the facts and circumstances of the present case it cannot be said that the autopsy reports prepared by Dr. N.K. Ghosh are not admissible under Section 32 of the Evidence Act. In the case of Udho Mahto V/s. State of Bihar, 1993 (2) PLJR 133. a Division Bench of this Court has held that Section 32 of the Evidence Act provides. inter alia, that the statement of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose evidence cannot be procured without an amount of delay or expense which would appear unreasonable to the court in a given case are relevant facts if they relate to any of the matters referred to in the section. According to sub-section (2) the statement made in ordinary course of business is a relevant fact. Statement and entries made in the post-mortem report are made by the doctor in ordinary course of business. If the doctor is dead or otherwise not available for the reason mentioned above, the post-mortem report is admissible as substantive evidence. In the present case the occurrence had taken place in the month of November. 1969. The case found its visa in the Court of session in 1977 and charges were framed against the accused after exactly ten years of the occurrence in the month of November. 1979. In spite of several adjournments granted, no witness could be produced. However, after much of correspondence with the district authorities the witnesses started coming from 18.3.1981 when P.W. 1 was examined. After five witnesses of the prosecution were examined by the prosecution till 30.6.1981, the prosecution started taking steps for, procuring the attendance of the Investigating Officer and the doctor who had not only held post- mortem but had also examined the two injured witnesses. After five witnesses of the prosecution were examined by the prosecution till 30.6.1981, the prosecution started taking steps for, procuring the attendance of the Investigating Officer and the doctor who had not only held post- mortem but had also examined the two injured witnesses. In his bid to trace out the doctor, the public prosecutor could learn that after being transferred from Banka Sub-Divisional Hospital the doctor in question had been reportedly posted as Civil Surgeon of Gopal-ganj. Therefore, there was a prayer to send summons to him at the address of Civil Surgeon of Gopalganj. However, when it came to the knowledge of the public prosecutor that the doctor had since retired, on 20.12.1982 there was a prayer to the trial Court to send summons to him through the Director of Health Services of Bihar at Patna as his whereabouts including permanent address could be ascertained. Pursuant to the order passed by the Court on that day summons appear to have been issued by the officer of the Court on 20.12.1983. In spite of three adjournments granted thereafter the doctor could not report, probably because the summons could not be served on him in absence of his address. The Court was very reluctant to grant further opportunity to the prosecution to locate Dr. N.K. Ghosh in view of the fact that a period of more than 13 years after occurrence had elapsed. Consequently, on 14.3.1983 the public prosecutor made a prayer to the trial Court for summoning the post-mortem report from the Sub-Divisional Hospital at Banka. There was also a prayer to summon a Civil Assistant Surgeon to prove the same. No objection was taken by the defence. The defence taking no objection to it, on 1.4.1983 the prosecution put in the witness box PW 7 to prove the autopsy reports as also the injury certificates respecting PWs 1 and 3 prepared by Dr. N.K. Ghosh. The documents having been legally proved by P.W. 7 in accordance with the provisions of the Evidence Act the autopsy reports as also the injuries certificates were admitted into evidence under the provisions of Section 32(2) of the Evidence Act. N.K. Ghosh. The documents having been legally proved by P.W. 7 in accordance with the provisions of the Evidence Act the autopsy reports as also the injuries certificates were admitted into evidence under the provisions of Section 32(2) of the Evidence Act. Even though there was no evidence to indicate that by the time trial of the accused persons in Sessions Trial No. 229 of 1977 commenced the doctor was dead, there was enough circumstance to show that the attendance of the doctor in Court could not be procured without an amount of delay which in the circumstance of the case was quite unreasonable. 15. In the case of Bakhshish Singh V/s. State of Punjab, AIR 1957 SC 905. under similar circumstance the apex Court upheld admission of the evidence of a doctor made before committing Magistrate on the ground that his presence could not be procured in spite of issuance of summons. In that case at the stage of trial the prosecution obtained summons to the doctor holding autopsy and attempted to get the same served by a witness. The witness deposed in the Court that the doctor was no longer in service and it was not known where he was. Thereafter, the public prosecutor made a prayer for transferring the evidence of the doctor made before the committing Magistrate in accordance with the provisions of Section 33 of the Evidence Act on the ground that there was no likelihood of the witness being available without unreasonable delay and expense. No objection was taken to such prayer at that time and the evidence of the doctor was admitted into evidence. On such facts, their Lordships observed that the trial Judge "might have been well advised to give fuller reasons for making the order transferring the statement. It appears to us that the learned Judge transferred it on the ground of unreasonable delay and expense and we do not find any infirmity in this order of transfer." The facts of the present case are almost akin to those in the case of Bakhshish Singh (supra). Hence, hardly there can be any room to dispute the admissibility of the autopsy reports prepared by Dr. N.K. Ghosh. Therefore, in my considered opinion, the autopsy reports (Exts. 6 and 7 series) respecting both the deceased and injuries certificates (Exts. Hence, hardly there can be any room to dispute the admissibility of the autopsy reports prepared by Dr. N.K. Ghosh. Therefore, in my considered opinion, the autopsy reports (Exts. 6 and 7 series) respecting both the deceased and injuries certificates (Exts. 8 and 9) respecting injured Manti Devi (PW 3) and Gulabia Devi (PW 1) respectively are legally admissible in evidence and can be treated substantive evidence as envisaged by Section 32(2) of the Evidence Act. 16. According to Ext. 7 the doctor who performed autopsy had found the following ante-mortem injuries on the dead body of deceased Narain Singh : (1) Cut of the neck on the back starting front the lobe of the ear on the right side to about 2" below the chin on the front of the neck. The whole depth of the neck was completely severed along with muscles, vessels, trachea, spinal column at the level of 3rd cervical vertebra. The neck was only attached with the head by a piece of skin and muscles in the length of about 2" and thickness of about 1/4" on the front and right side. (2) Three incised wounds 3" x 1" x scalp deep. 1-1/2" x 1/2" x scalp deep and 2" x 1/2" x scalp deep on the back of head; (3) Incised wound 1-1/2" x 1/2" x scalp deep on the right side of head. (4) Incised wound 1" x 1" x scalp deep on the left side of head. (5) Incised wound I" x 1/2" muscle deep on the left lower eye-lid. (6) Fracture of left phalanx of the left little finger with abrasion 1/4" x 1/6" on its back. (7) 2 incised wounds measuring 2-1/2" x 1/6" x skin deep, and 3" x 1/3" x skin deep on the upper part and outer aspect of right thigh. Injuries other than the fracture of the phalanx of left middle finger, which was caused by some hard and blunt substance, were inflicted with the aid of some sharp cutting weapon. The death of the deceased had occurred, in the opinion of the doctor, due to cutting of the neck of the deceased as indicated against SI. No. (1) within 24 to 36 hours prior to the autopsy held at 11 .30 a.m. on 24.11.1969. 17. The ante-mortem injuries found on the person of deceased Debia Devi as per Ext. The death of the deceased had occurred, in the opinion of the doctor, due to cutting of the neck of the deceased as indicated against SI. No. (1) within 24 to 36 hours prior to the autopsy held at 11 .30 a.m. on 24.11.1969. 17. The ante-mortem injuries found on the person of deceased Debia Devi as per Ext. 6 were as below : (1) Incised wound 4" x 1" x bone deep with complete fracture of the upper end of the left humerus bone on the left shoulder. (2) Incised wound 3-1/2" x 2" x bone deep with fracture of the upper end of left radius bone on the upper and outer part of left fore-arm below the elbow joint. (3) Incised wound 2" x 3/4" x bone deep on the lower part and back of left arm. (4) Incised wound 3-1/2" x 1" x bone deep with fracture of 3rd cervical vertebra of the neck on the middle part of the left side of neck. (5) Incised wound 1-1/2" x 1/2" x bone deep (mandible) on the left side of the face, (6) Incised wound 2" x I" x scalp deep on the front head near central part. (7) Incised wound 3/4" x 1/2" x skin deep on the top of right shoulder joint. (8) 2 scratches measuring 3-1/4" x 1/2". each, on the upper and outer aspect of right arm. On dissection the wound on the neck was found cutting all the big vessels, carotid and jugular vessels, spinal canal and spinai cord. The above mentioned injuries were caused by some sharp cutting weapon and the death had occurred, in the opinion of the doctor, about 24 to 36 hours back due to cutting of the throat as indicated against si no. (4). The autopsy was conducted at about 12 noon on 24.11.1969. 18. From Exts. 8 and 9 one finds that the same doctor who had conducted the postmortem examinations, had also examined injured Manti Devi and Gulabia Devi at about 5.40 p.m. on 23.11.1969 at Banka Sub-Divisional Hospital. He had found 9 incised wounds of different sizes on the vertex of the head of PW 3. 18. From Exts. 8 and 9 one finds that the same doctor who had conducted the postmortem examinations, had also examined injured Manti Devi and Gulabia Devi at about 5.40 p.m. on 23.11.1969 at Banka Sub-Divisional Hospital. He had found 9 incised wounds of different sizes on the vertex of the head of PW 3. swelling 3" x 2-1/2" on the right elbow joint, swelling with abrasion 4" x 3-1/2" on the lower part of right ear, scratch 2" x 1/6" on the left side of back, 6 abrasions of different sizes on right shoulder, linear scrash 8" x 1/6" on left side of back, and swelling of the lower left eye-lid. While the first set of injuries were caused by some sharp cutting weapon, the remaining ones were the result of use of hard and blunt substance. The cut injuries on the head were found to be grievous in nature and the rest were simple. The above mentioned injuries were caused within 6 to 12 hours before examination (as per Ext. 8). The doctor had found on the person of Gulabia Devi (PW 1) an incised wound 3- 1/2" x 1/4" x scalp deep on head over the left parietal area, incised wound 1-1/2" x 1/9" x bone deep on the right lore-head, fracture of the right humerus bone, swelling with bruise 3-1/2" x 3" on the left side of face, bruise 4" x 1/4" on the lower part of chest wall and similar bruise on the middle part of right side of chest wall. While the first two injuries were caused by some sharp cutting weapon, the rest were caused by hard and blunt substance. Obviously, the fracture of the right humerus bone was grievous in nature and the rest were simple. The injuries had been caused within 6 to 12 hours before her examination. 19. Thus, it is manifest that the eyewitness account regarding the occurrence and assault on the two deceased and PWs 1 and 3 has been fully corroborated by the medical evidence. 1 have already indicated that even the ocular findings of the Investigating Officer (PW 6) go a long way in supporting the manner of the occurrence as stated by PWs 1 to 4. Indeed, these witnesses have made some contradictory statements regarding the weapons used by the respective assailants. They have also tried to exaggerate the incident to some extent. For example. Indeed, these witnesses have made some contradictory statements regarding the weapons used by the respective assailants. They have also tried to exaggerate the incident to some extent. For example. PW 2 has stated that she had seen some of the accused persons and their wives spreading ash over the trial of blood lying on ground in between the well in question and the paddy field. PWs 2 and 4 have themselves stated that soon after the assault and departure of the assailants from the place of the occurrence they filed from the village and went to Punsia where they met PW 5, it is quite unlikely that in course of the occurrence itself and body had tried to obliterate the blood stains by throwing ash thereon or otherwise. If any thing, it could have been done only after PWs 2 and 4 left the village and before the arrival of the police or for that matter even prior to the reaching of these witnesses and PW 5 at the place of the occurrence around 9 a.m. Therefore, naturallv PW 2 could not be present there to witness as to who had thrown ash on the trail of blood to cause disappearance thereof The occurrence had taken place in November. 1969 and these witnesses came to the witness box between March. 1981 and May 1981. In other words, they came to depose in course of trial after nearly 12 years of the occurrence. Two of them were just child aged about 10 to 12 years. Therefore, it was not expected from them to retain all the details of the occurrence in their mind and reproduce the same after lapse of about 12 years. Therefore, no significance need be attached to minor contradictions here and there in the statements of PWs. 1. 2, 3 and 4 in course of their evidence in Court. Two of them are injured and undisputedly sustained those injuries in course of the same occurrence at the hands of the assailants of the deceased. 20. It is true that the witnesses examined by the prosecution to prove the guilt of the appellants are blood relations and come from a single family on litigating terms with the family of. at least, appellant Govind Singh. For that reason alone the witnesses cannot be disbelieved especially when two of them got injured in course of the same occurrence. It is true that the witnesses examined by the prosecution to prove the guilt of the appellants are blood relations and come from a single family on litigating terms with the family of. at least, appellant Govind Singh. For that reason alone the witnesses cannot be disbelieved especially when two of them got injured in course of the same occurrence. What is required of such witnesses is that their testimony is found trustworthy, the conclusion of guilt of the person charged with commission of the crime alleged can be arrived at. On close scrutiny of the testimony of these eye-witnesses I find no reason to discard what they have stated regarding the occurrence and participation of, at least, some of the appellants in these appeals. It is equally true that except these blood relations, no independent witness of the locality has come to depose in support of the prosecution version. It is common experience that these days the attitude of the public in investigation of crimes has become quite indifferent and the public arc generally reluctant to come forward to depose in Court of law. Therefore, simply because no independent witness of the locality comes forward to depose in support of prosecution version that will not be a ground for disbelieving the occurrence if the same is otherwise established by other evidence on record, may be that of interested and related witnesses. In the instant case one finds from the evidence that even though the two murders were committed at the out-skirt of the village, not a single soul came forward to intervene and rescue and victims, what of defending them. They did not even take the injured to hospital for treatment. Such was the callous behaviour of the neighbours and other co-villagers. To expect them in the witness box will be crying for moon. Therefore. simply because the villagers of Khaira had not come in support of the prosecution story, what PWs I. 2. 3 and 4 have stated cannot be thrown in gutter as unacceptable. 21. It has been further contended by the learned counsel for the appellants that the prosecution case was subsequently impsoved in course of investigation. In the first information report only one Laxman Singh, his two sons. 3 and 4 have stated cannot be thrown in gutter as unacceptable. 21. It has been further contended by the learned counsel for the appellants that the prosecution case was subsequently impsoved in course of investigation. In the first information report only one Laxman Singh, his two sons. (Govind Singh and Kamala Singh) and some unknown persons had been described as the culprits; but subsequently a large number of persons including these appellants were roped in. It is further contended that even the first informant Mahadeo Hajra has not been examined in this case in support of his information report. From the evidence of PW 6 and the charge-sheet submitted in the case it appears that first informant Mahadeo Hajra was subsequently made accused and charge sheeted along with the present appellants and some others. However, before the trial commenced he died. Therefore, in the circumstance it was quite unlikely that the prosecution could have produced him as its witness in support of the occurrence. Moreover, on bare perusal of the first information report one finds that the first informant Mahadeo Hajra was not a witness to what had happened in the morning on 23.11.1969 at the place of the occurrence resulting in two deaths and injuries to two others. According to his version in the first information report, he had gone to some other village and only when he returned home, he could learn of the occurrence. Thereafter, he went to village Khaira and learnt how the occurrence had taken place. Incidentally, the persons who informed him of the occurrence namely., Huro Singh, Ragho Singh and Makeshwar Singh, were subsequently implicated as accused in the case. Out of them Makeshwar Singh is appellant No. 7 in Cr. Appeal No. 395/95. After learning of the incident he went to the paddy field and found the dead body of Narain Singh. He also found PWs 1 and 3 in injured condition. From the document it does not appear that he even talked with PWs 1 and 3 regarding the manner of the occurrence in course of which they had sustained injuries. After learning of the incident he went to the paddy field and found the dead body of Narain Singh. He also found PWs 1 and 3 in injured condition. From the document it does not appear that he even talked with PWs 1 and 3 regarding the manner of the occurrence in course of which they had sustained injuries. It appears that either he did not go to the place of the occurrence on getting information of the occurrence from Huro Singh and others or if he went there at all he stayed there for few moments so that he could even miss the dead body of Debia Devi lying at a very short distance from the dead body of her father Narain Singh lying on the same paddy field. Therefore, by no stretch of imagination it can be said that what Mahadeo Hajra had narrated in his first information report lodged with Banka police was full and true version of the occurrence that had taken place. 22. It appears that when PWs 1 and 3 were taken to Banka Sub-Divisional Hospital in seriously injured condition an information was sent to the police station regarding the arrival and a police officer went there: and recorded the statements of PWs 1 and 3 and a supplementary case diary was submitted. The doctor also took precaution to get the dying declarations of the two injured recorded by a Magistrate. Since thi injured have survived, their dying declarations have lost evidentiary value. At best. they can be treated as previous statements of the witnesses for the purpose of contradicting them in accordance with the provisions of Section 145 of the Evidence Act. Neither the police officer who recorded the statements of PWs 1 and 3 at Banka Sub-divisional Hospital nor the Magistrate who recorded their dying declarations have been examined in the case. Therefore, the learned counsel have contended that due to the non-examination of those two witnesses the defence of the appellants has been highly prejudiced. The nature of the prejudice indicated is that the witnesses (PWs 1 and 3) were confronted with their statements made in Court vis-a-vis their statements made before the police officer and the Magistrate. Due to non-examination of the police officer concerned and the Magistrate, the defence could not contradict these witnesses. 23. The nature of the prejudice indicated is that the witnesses (PWs 1 and 3) were confronted with their statements made in Court vis-a-vis their statements made before the police officer and the Magistrate. Due to non-examination of the police officer concerned and the Magistrate, the defence could not contradict these witnesses. 23. From the trend of the cross examination of PWs 1 and 3 one finds that PW 1 had denied having stated to the police officer and the Magistrate that appellant Govind Singh was armed with a sword and cut the neck of deceased Narain Singh and appellant Gulli @ Gulabi Rai had assaulted him with lathi, that thereafter his dead body was dragged to the disputed paddy field, that when she went along with PW 3 she was also assaulted by appellant Kanchan Rai, that PWs 3, was assaulted by accused appellants Govind Singh and Gulli @ Gulabi Rai by means of bhala and stick, that many people had come to the place of the occurrence to whom she had disclosed the names of the accused; and that her husband was living at Sahebganj wherefrom he came to the village at about 9 a.m. and to him she had narrated every thing about the occurrence. Likewise, PW 3 has denied having stated to the police officer and the Magistrate that her husband was assaulted at the well; that appellants Radhey Singh and Shivnandan Singh were also among the assailants; that the neck of her husband had been cut at the well itself and his dead body was lifted and taken to the paddy field; and that appellant Govind Singh had cut the neck of deceased Debia Devi. Except the omission on the part of PW 3 to name appellants Radhey Singh and Shivnandan Singh as the assailants of her deceased husband, none of other omissions made by these two witnesses appear to be of any consequence. Those omissions were respecting the details of the assault. The witnesses had themselves been severely injured so much so that the doctor treating them thought it necessary to get their dying declarations recorded by a Magistrate. In the circumstance it was not expected from them to give the fullest detail of the manner of the occurrence. Those omissions were respecting the details of the assault. The witnesses had themselves been severely injured so much so that the doctor treating them thought it necessary to get their dying declarations recorded by a Magistrate. In the circumstance it was not expected from them to give the fullest detail of the manner of the occurrence. It was sufficient if they could disclose the names of their assailants as well as the assailants of the deceased when their dying declarations were recorded by a Magistrate and the police officer recorded their statements under Section 161 of the Code of Criminal Procedure. 24. Indeed, it was the duty of the prosecution to produce the police officer who had recorded the statements of PWs 1 and 3 at Banka Sub-divisional Hospital on 23.11.1969 after recording of the first information report. But due to his non-examination no serious prejudice appears to have been caused to the appellants, except to some extent appellants Radhey Singh and Shivnandan Singh who were omitted to be named as the assailants. As regards the Magistrate who recorded the dying declarations of PWs 1 and 3, it was none of the duty of the prosecution to bring him to the witness box because the dying declarations recorded by him had lost their evidentiary value. If the defence was so serious about using "those documents to contradict these witnesses in accordance with the provisions of Section 145 of the Evidence Act, they could have got the Magistrate summoned. In this connection it may be mentioned that the prosecution never intended to withhold anything from the Court and very fairly tendered, in course of the trial, the dying declarations recorded by the Magistrate. If the defence was so serious regarding the contradictions, they could have got those documents admitted into evidence on their behalf. 25. Lastly, it has been contended on behalf of the appellants that, as a matter of fact, the entire occurrence had taken place on the disputed paddy field as suggested by the defence to PW 1 at the end of her cross-examination, although the witnesses have tried to shift the place of the initial assault on deceased Narain Singh to the well situated nearby to support which there is no satisfactory ocular evidence. Even though the Investigating Officer has stated that he had found ash and mud thrown on strip of land between the well and the disputed paddy field, no attempt appears to have been made by him to find out if there was any stain of blood underneath the ash and mud, which was very likely if the version of the prosecution witnesses is to be believed. Admittedly, the paddy field in question was subject matter of a proceeding under Section 145 of the Code of Criminal Procedure between deceased Narain Singh on one hand and Lax-man Singh, the father of appellant Govind Singh, on the other, Ext. A/2 is an order dated 25.6.1969 which shows that the said land was the subject matter of attachment in the said proceeding and was settled with appellant Govind Singh for the crop year 1969-70. After declaration of possession of the said Laxman Singh by order dated 19.12.1972 (as per Ext. A) the money deposited with Court on account of settlement was ordered to be paid to him vide Ext. A/3. In other words, the family of appellant Govind Singh was in cultivating possession of the disputed paddy field and they were harvesting the crop peacefully in the morning on 23.11.1969. The deceased and the injured went there to protest. Their such conduct amounted to criminal trespass providing the appellants right of private defence of property and to inflict injury permissible under Section 104 of the Code to drive them away. In the circumstance, by causing death of two persons and grievous injuries to two others, the appellants/assailants only exceeded that right. Therefore, their such act did not amount to committing murder punishable under Section 302 of the Code but amounted to culpable homicide not amounting to murder punishable under Section 304, it has been argued. 26. In view of the preponderance of evidence that the initial assault on deceased Narain Singh commenced at the well where he was engaged in washing his hands and face after attending the call of nature, it is very difficult to agree with the contention that the entire occurrence of assault from beginning to the end had taken place on the disputed paddy field. The mark of trampling found by the Investigating Officer only indicates that the occurrence started at the well and it ended on the disputed paddy field, even though witnesses might be found exaggerating that the neck of deceased Narain Singh had been cut at the well itself. Be that as it may, even if it is to be accepted that the entire occurrence took place at the disputed paddy field as suggested by the defence, mere going by the deceased and the injured to the said field did not, and could not, amount to aggression and/or criminal trespass so as to clothe the accused persons with right to inflict any injury to the former, muchless fatal and grievous in defence of their person or property. There is no indication either in the evidence of the prosecution witnesses or in the statements of the accused persons under Section 313 of the Code of Criminal Procedure that the deceased and the two injured had gone to the disputed paddy field with any arm so as to give any reasonable apprehension in the mind of the accused persons engaged in harvesting the paddy crop that death or grievous injury would be the consequence of such assault or aggression unless thwarted by exercise of right of self defence. Indeed, an attempt appears to have been made by the accused persons to plant a gun and some arrows near the dead bodies of the deceased to indicate that they had gone there armed with deadly weapons which could give reasonable apprehension of death or grievous hurt being caused. But the manner in which those weapons were found placed near the dead bodies indicated that they were planted to give a colour of aggression by the deceased and the injured. If the deceased had gone there with those arms with a view to commit aggression, the weapons would have been found in their hands and not lying at a distance from their dead bodies. Therefore, in the circumstance of the case, no right of private defence of body even permissible under Section 101 of the Code was available to the accused persons including the appellants. 27. As regards the right of private defence of property it was equally not available to them. Therefore, in the circumstance of the case, no right of private defence of body even permissible under Section 101 of the Code was available to the accused persons including the appellants. 27. As regards the right of private defence of property it was equally not available to them. According to Section 97 of the Code every person has a right, subject to the restrictions contained in Section 99 to defend property whether movable or immovable of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Under Section 103 that right extends to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which or the attempting to commit which, occasions tht exercise of the right, be an offence of robbery, house- breaking by night, mischief by fire committed on any building etc. and theft. mischief or house trespass, under such circumstance as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. Manifestly, when the deceased and the injured persons supposedly went to the disputed field, their act did not amount to an offence of robbery, house breaking by night mischief by fire to a building etc., or theft mischiefor house trespass muchless under such circumstances as might reasonably cause apprehension that death or grievous hurt would be the consequence, if such right of private defence was not exercised. Under Section 104 of the Code the right of private defence of property extends the voluntarily causing to the wrongdoer of any harm other than death, of course subject to the restrictions mentioned in Section 99, if the offence committing of which or attempting to commit which occasions the exercise of such right of private defence is theft, mischief or criminal trespass. There is no suggestion by the defence that the deceased and the injured persons were committing theft of paddy crop on the disputed field where they were killed and injured Similarly, there is no allegation of mischief being committed by them so as to ensure right of private defence of property to the accused persons. There is no suggestion by the defence that the deceased and the injured persons were committing theft of paddy crop on the disputed field where they were killed and injured Similarly, there is no allegation of mischief being committed by them so as to ensure right of private defence of property to the accused persons. However, it has been submitted that since the deceased and the injured persons went to the disputed paddy field when the rightful owners were engaged in harvesting the standing crops, their such act amounted to criminal trespass clothing the latter with, at least, first degree of right of private defence of property as envisaged by Section 104 of the Code. 28. On going through the record of the Court below including the statements of the accused persons under Section 313 of the Code of Criminal Procedure, I find that there is no whisper that when the deceased and the injured persons went to the disputed paddy field they were in aggressive mood or on reaching the field they hurled abuses or did any overt act like entering into heated altercation with the persons harvesting the crop so that their acts amounted to any offence or an attempt to insult, intimidate or annoy them. Section 441 of the Code defines criminal trespass. According to ie section whoever enters into or upon propety in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit a criminal trespass". It is manifest that the deceased and the injured persons did not go to disputed paddy field for committing any offence whatsoever. Similarly, their act of going to that field merely to lodge a protest pure and simple cannot be said to be an act intended to intimidate, insult or annoy the owner of the crop or the persons who were harvesting the same on his behalf. In order to establish that the entry on the property was with intent to annoy, intimidate or insult, it is necessary to satisfy that causing such annoyance, intimidation or insult was the aim of the entry. In order to establish that the entry on the property was with intent to annoy, intimidate or insult, it is necessary to satisfy that causing such annoyance, intimidation or insult was the aim of the entry. It is not sufficient merely to show that the natural consequence of the entry was likely to be annoyance, intimidation or insult. Therefore, even if it is accepted for the sake of argument as suggested by the learned counsel that the deceased and the injured persons went to the paddy field to lodge protest against harvesting and thus in- vited the ire of the owner and persons harvesting the crop on his behalf, their such aci could never amount to an offence of criminal trespass so as to vest the owner and persons engaged in harvesting the crop a right of private defence of property of even the first degree as postulated by Section 104 of the Code. 29. It. thus, emerges from the above discussion that act of the assailants in inflicting fatal injuries to deceased Narain Singh and his daughter Debia Devi amounted to committing of the offence of murder punishable under Section 302 of the Code and not culpable homicide not amounting to murder punishable under Section 304 as canvassed on behalf of the appellants. Evidence of the eye-witnesses including the two injured is that it was appellant Govind Singh who had inflicted the fatal injuries on the persons of both the deceased by slitting their necks by using sword. As regards other appellants the witnesses have not made any allegation of specific overt act. except in case of appellants 8 and 9 of Cr. Appeal No. 395/95. who struck deceased Narain Singh with sticks. Appellants Govind Singh. Shivnandan Singh, Radhey Singh. Anup Lai Singh. Kanchan Rai and Gulli alias Gulabi Rai have been named by all the witnesses including the two injured. Appellapt Shudco Singh has been named by PWs 1, 2 and 4: appellant Kanhai Singh by PWs 1 and 4; appellant Jittan Singh by PWs 1 and 2: appellant Basant Rai by PWs 2 and 4; and appellant Makeshwar Rai by PW 1 only. Admittedly. PWs 2 and 4 were hardly aged 10 to 12 years when the occurrence had taken place. Admittedly. PWs 2 and 4 were hardly aged 10 to 12 years when the occurrence had taken place. According to their own version they had not gone to the place of the occurrence and had witnessed either the entire occurrence or part thereof from considerable distance. It has also come in the evidence that when the assault started, out of fear they had concealed themselves. Therefore, it will not be quite safe to place implicit reliance on their testimony regarding identification of the assailants of the deceased and the injured. As a horde of villagers have been sought to be implicated in the occurrence, for upholding conviction corroboration by both the injured witnesses becomes imperative. And those identified/named by PWs 2 and 4 or by only one of the injured, deserved to be given benefit of doubt. 30. On evidence I find that appellant No. 10 of Cr. Appeal No. 395/95 has not been named by any of the injured witnesses while appellants No. 1, 3, 6 and 7 of the said appeal have been named by PW 1 only. Even though appellant No. 2 Shivnandan Singh and appellant No. 4 Radhey Singh appear to have been named by PW 3 as well, besides PW 1 it will appear that in course of her cross- examination it was suggested to her that she had not named them before the police and the Magistrate who recorded her statement at Banka Sub-Divisional Hospital. She denied, the suggestion. But due to non-examination of the Sub-Inspector of Police she could not be contradicted and, thus, non-examination of the police officer caused prejudice to their defence. Thus, for all practical purposes even appellants No. 2 and 4 of Cr. Appeal No. 395/95 shall be deemed to have been named by only one injured witness, namely, PW 1. Therefore, in my opinion, appellant Nos. 1, 2, 3, 4, 6, 7 and 10 deserve to be acquitted by giving them benefit of doubt. However, the finding of the guilt of appellant Govind Singh (in Cr. Appeal No. 388/95) as also appellants 5, 8 and 9 of Cr. Appeal No. 395/95 warrants no interference. 31. Even though the witnesses including the two injured have stated in course of trial that it was appellant Govind Singh (in Cr. However, the finding of the guilt of appellant Govind Singh (in Cr. Appeal No. 388/95) as also appellants 5, 8 and 9 of Cr. Appeal No. 395/95 warrants no interference. 31. Even though the witnesses including the two injured have stated in course of trial that it was appellant Govind Singh (in Cr. Appeal No. 388/95) who had killed both the deceased by cutting their necks using a sword, they do not appear to have made such statement before the police officer who had recorded their statements at the earliest at Banka Sub-divisional Hospital. Due to non-examination of the police officer by the prosecution their statement in Court could not be contradicted in this regard. Therefore, in the circumstance, it is not reasonably safe to accept their version that appellant Govind Singh and Govind Singh alone had caused the fatal injuries to both the deceased persons, especially when from their evidence it is manifest that, besides him, some other assailants were also armed with weapons like sword and spear. Nonetheless, fact remains that there was an assembly of more than five persons because the complicity of Laxman Singh (since dead) and Kamla Singh (since absconding), besides appellants Govind Singh. Anup Lai Singh. Kanchan Rai and Gulli alias Gulabi Rai is established beyond all reasonable doubt. The assembly became unlawful as soon as the assault on the deceased and the injured witnesses started, and in prosecution of the common object of such assembly the twin murders were committed. Thus, all the above persons became liable for the said murders with the aid of Section 149 of the Code. Therefore, the conviction of appellant Govind Singh is altered from Section 302 to Section 302 read with Section 149 of the Code, and the conviction of appellants No. 5. 8 and 9 in Cr. Appeal No. 395/95 under Section 302 read with Section 149 of the Code is maintained. 32. Besides being convicted under Section 302 of the Code, appellant Govind Singh has been further convicted under Section 307 of the Code for attempting to commit murder of PW 1 and 3. The medical evidence discloses that some incised wounds had been caused to both the injured. None of such injuries found on the person of PW 1 were grievous in nature. The only grievous injuryon her person was the fracture of her right humerus bone. The medical evidence discloses that some incised wounds had been caused to both the injured. None of such injuries found on the person of PW 1 were grievous in nature. The only grievous injuryon her person was the fracture of her right humerus bone. As regards the injuries found on the person of PW 3 Manti Devi, the doctor had found that nine incised wounds on the vertex of her head were grievous it) nature. There is no specific evidence that all those injuries were caused by appellant Govind Singh only, especially when there were other assailants as well, who were wielding sharp cutting weapons. That apart. no intention to commit murder while inflicting those injuries would be imputed to the assailant, because had there been any intention on the part of the assailant to kill her. he could have easily cut her neck, as in the case of deceased Narain Singh and his daughter Debia Devi. Keeping in view the nature of injuries inflicted on the person of PW 3 Manti Devi the offence committed amount to voluntarily causing of grievous hurt by means of a weapon of cutting punishable under Section 326 of the Code. Therefore, the conviction of appellant Govind Singh under Section 307 of the Code is altered to Section 326 read with Section 149 of the Code. On the same premise the conviction of the other appellants under Section 307 read with Section 149 of the Code stands altered to Section 326 read with Section 149 of the Code. As regards the conviction of-appellant Govind Singh under Section 148 and that of appellant Anup Lal Singh and Kanchan Rai under Section 147 of the Code, it requires no interference. 33. Once the conviction of appellant Govind Singh (in Cr. Appeal No. 388/95) under Section 302 of the Code for committing murder of Nafain Singh and Debia Devi is set aside and altered to Section 302 read with Section 149 of the Code, the sentence of death awarded to him has necessarily to be scaled down to imprisonment for life as in the case of the other appellants convicted under the same provision. Similarly, conviction of the said appellant under Section 307 of the Code having been set aside and altered to Section 326 read with Section 149 of the Code the sentence of imprisonment for life as awarded to him deserves to be modified and reduced to rigorous imprisonment for five years. Similarly, the sentence of appellants Anup Lai Singh, Knachan Rai and Gulli alias Gulabi Rai for the offence under Section 326 read with Section 149 of the Code is reduced to rigorous imprisonment for five years each. 34. In the result, Cr. Appeal No. 388/95 is allowed in part and convictions of appellant Govind Singh under Sections 302 and 307 of the Code and the punishment awarded therefore are set aside and instead he is convicted under Section 302 read with Section 149 and Section 326 red with Section 149 of the Code and is sentenced to undergo imprisonment for life for the first offence and rigorous imprisonment for five years for the latter. His conviction under Section 148 of the Code is maintained. The death reference for confirmation of the sentence of death awarded to him stands disposed of accordingly. 35. As regards Cr. Appeal No. 395/95, the same stands allowed respecting appellants No. 1, 2, 3, 4, 6, 7 and 10 and their convictions and sentences are hereby set aside. They are acquitted and directed to be released forthwith if not required in any other matter. The appeal as against appellants No. 5. 8 and 9 is allowed in part and their conviction under Section 307 read with Section 149 of the Code is set aside and instead they are convicted under Section 326 read with Section 149 of the Code and sentenced to undergo rigorous imprisonment for five years each. Their conviction under Sec-lion 302 read with Section 149 and Section 147 of the Code and the punishment awarded therefore the maintained. 36. The sentence of the appellant in both the appeals shall run concurrently. Acting Chief Justice. 37 I agree.