Judgment R.N.Sahay, J. 1. Originally there were four appellants in this appeal, namely, Laxmi Sah, Balchand Shah, Satyadeo Shah and Suresh Shah of village Senuwaria, P.S. Turkaulia, District-East Champaran, who had been convicted by the Court of 1st Addl. Sessions Judge, Motihari by judgment delivered on 8-10-1991 in Sessions Trial No. 12/119 of 1991, whereby appellant Nos. 1 and 2 have been convicted under Sec. 302/109 of Indian Penal Code whereas appellant Nos. 3 and 4 have been convicted under Section. 302/34 of Indian Penal Code and all of them have been sentenced to undergo imprisonment for life. 2. Appellant No.1 Laxmi Sah died during the pendency of this appeal and thus this appeal abates so far appellant No.1 is concerned. Appellant Nos. 3 and 4 are sons of appellant No.1. 3. The appellants were placed on trial relating to an offence committed on 10th April, 1990 in which one Kamrul Alam was allegedly fatally stabbed by appellant Nos. 3 and 4, namely, Satyadeo Sah and Suresh Sah. There was charge of abatement against appellant Laxmi Sah and Balchand Sah. 4. Entire case of the prosecution can be gathered from the fardbeyan (Ext. 3) rendered by Khursheed Alam on 10-4-1990 at 10.00 p.m. at Sadar Hospital, Motihari alleging, inter alia, that on fateful day at 6.30 p.m. his brother Kamrul Alam along with the informant was sitting at the darwaja after completion of Aftari. The appellants arrived there and started hurling abuses at the deceased for dropping the soil in front of the house of the appellants. Kamrul Alam retorted stating that since his house was under construction, hence the same necessitated the dropping of the soil in front of the house of the appellants. Appellants Laxmi Sah commanded other three appellants to kill the deceased, whereupon appellant No.2 caught hold of the deceased and appellant Nos. 3 and 4 were alleged to have inflicted two chura blows on the person of the deceased from front and back respectively. Kamrul alam caught the chura of the appellant drawn out by the appellants and thereby Tight hand finger of the deceased was severely cut. The informant raised hulla upon which a large number of villagers assembled on the spot and all the accused persons took to their heels. Kamrul alam caught the chura of the appellant drawn out by the appellants and thereby Tight hand finger of the deceased was severely cut. The informant raised hulla upon which a large number of villagers assembled on the spot and all the accused persons took to their heels. The deceased lying in a precarious condition was carried on a cot upto Turkaulia Channel Bridge and from there they rushed to the State Dispensary where on the advice of the doctor the deceased was taken to Sadar Hospital, Motihari where he was declared dead by the attending doctor. 5. The police investigation commenced and on 13-7-1990 charge-sheet was submitted against appellant Nos. 1, 2 and 4. Appellant No.3 was not sent up for trial since the investigator was satisfied with the plea of alibi set forth by this appellant. However, the Chief Judicial Magistrate by his order dated 13-7-1990 took cognizance against all the four appellants and subsequently on 16-4-1991 case was committed to the Court of Sessions. 6. In course of-trial the prosecution called 11 witnesses to substantiate the charges against the appellants. According to the prosecution occurrence had taken place in presence of Sk. Rahman PW 1, Sk. Subhan PW 2, Sk. Subrati PW 3, Nasim Akhtar PW 4, Nisar Ahmad PW 5 and the informant PW 7. Apart from these witnesses, autopsy surgeon and the Investigating Officer were also examined. There were few formal witnesses. On behalf of the appellants, four defence witnesses were examined to establish the plea of alibi advanced by appellant No.3. The plea of appellant No.3 was that on material date he was at Patna in connection with treatment of his relation Bipin Sah, who was suffering from Blood Cancer. 7. The deceased Kamrul Alam suffered Homicidal death is proved beyond doubt. According to Dr. The plea of appellant No.3 was that on material date he was at Patna in connection with treatment of his relation Bipin Sah, who was suffering from Blood Cancer. 7. The deceased Kamrul Alam suffered Homicidal death is proved beyond doubt. According to Dr. Sunil Kumar Sahi PW 9, following ante-mortem injuries were found on the body of the deceased: (i) penetrating wound with sharp margin of size 1-1/2" x½" x cavity deep over left lower part of chest below nipple; (ii) penetrating wound with sharp margin of size 1/2" x 1" cavity, deep over left side of lower abdomen with protraction quantum and loop of intestine; (iii) penetrating wound with sharp margin of size 1-1/2" x 2" x 1-1/2" over left side of back below scapular region; (iv) incised wound" with sharp margin of size of 1-1/2" x¼" x 1-1/2" over left side of lower part of back in waist region. (iv)The doctor opined that all the injuries were caused by sharp cutting weapon and the death was due to above injuries on the vital parts leading to haemorrhage and shock. The trial Judge found the postmortem report (Ext. 6) in conformity with the injury noticed by the police also in the inquest report. 8. The trial Judge has observed that the place of occurrence as stated by the Investigating Officer PW 8 has not been challenged by the defence. The Investigating Officer found that the piled soil was the cause of occurrence. The evidence of Khurseed Alam the informant shows that 5 to 6 tractors soil had been dropped at the door of appellant Laxmi Sah on the date of occurrence. The informant fully supported the story given out by him in his fardbeyan as stated in the earlier part of this judgment. He, however, did not stick to his earlier version that the right hand finger of the deceased had been cut when he caught the chura of one of the appellant, who had inflicted dagger blow. There is no mention of the injury in the right palm of the deceased in the post-mortem report also. 9. The defence did not put any question in this regard to the doctor. The trial Court has rightly held that the surgeon might have overlooked the injury in the right hand finger as mentioned in the inquest report prepared by the police. The trial Judge has observed that injury Nos. 9. The defence did not put any question in this regard to the doctor. The trial Court has rightly held that the surgeon might have overlooked the injury in the right hand finger as mentioned in the inquest report prepared by the police. The trial Judge has observed that injury Nos. (i) to (iv) as described in the inquest report and post-mortem report furnish clear proof of the fact that the deceased was stabbed. 10. The trial Judge has considered the evidence of other eye-witnesses in para 12 of the judgment under appeal as are reproduced below: "12. PWs. 1, 2, 3 and 4 are eye-witnesses named in the fardbeyan. PW 1- said that at the time of occurrence he was sitting at his door, which was 2-1/2 to 3 laggis from the P.O. east north. PW 2 said that he was sitting at the time of occurrence at the door of Halima Khatoon his sister, which was in the south east from the house of accused Laxmi Sah. In cross-examination he had said that his own house was after 3-4 houses from the P.O. and at the distance of 15 laggi from the P.O. He had said that Nizamuddin was his Bahnoi and on that day he had gone to his house for taking meal on invitation. PW 3 stated that at the time of occurrence he was at his door, which was 2 to 2-1/2 laggi from the house of accused Laxmi Sah. Apart from them. PW 5 is charge sheet eye-witness. He stated that at the time of occurrence he was at his door, which was only "5 laggi from the house of accused Laxmi Sah. All PWs 1, 2, 3, 4 and 5 have consistently narrated the occurrence as mentioned in the fardbeyan and all have stated that on abuses hurled by accused Laxmi Sah, deceased Kamrul Alam moved to the PO near the soil piled by him and he had altercation with accused Laxmi Sah and that on order of Laxmi Sah. accused Balchand Sah caught hold of Kamrul Alam and then accused Suresh Sah stabbed twice from front and accused satyadeo Sah stabbed twice from the back upon Kamrul Alam. No doubt there appears some variance in the manner of assault as the evidence come in from the mouth of different 5 witnesses. accused Balchand Sah caught hold of Kamrul Alam and then accused Suresh Sah stabbed twice from front and accused satyadeo Sah stabbed twice from the back upon Kamrul Alam. No doubt there appears some variance in the manner of assault as the evidence come in from the mouth of different 5 witnesses. For PW 1 straight way said that accused Suresh Sah stabbed with his chaku twice on the stomach and accused Satyadeo Sah with his chaku stabbed on back of Kamrul Alam. PW 2 stated that accused Suresh Sah stabbed twice with chura from front and accused Satyadeo Sah stabbed twice on the back of Kamrul Alam. PW 3 stated that accused Suresh Sah stabbed with chaku twice from front causing injury on left side of chest and further into the stomach from which intestine came out and that accused Satyadeo Sah stabbed with chaku from back of Kamrul Alam causing injury on the back and other on little above the waist, PW 4 stated that accused Suresh Sah gave two blows of chura causing injury on the chest and stomach and intestine had come out and that accused Satyadeo Sah had stabbed twice with chura on the back causing injury on the back and at the waist of Kamrul Alam and PW 5 has said that accused Suresh Sah had stabbed on the chest and at the abdomen from which intestine came out and accused Satyadeo Sah stabbed twice with his chura in the back causing injury an left side above waist and other on left side pakhura of Kamrul Alam. Same difference in the statement of witnesses found in the present case are but natural phenomena in view of human sensual capability. Over all, all the eye-witnesses together with the informant have supported the facts consistently and corroboratively that far the cause of dropping and piling of sails in front of the house of accused Laxmi Sah there was altercation between deceased Kamrul Alam and Laxmi Sah and at the instance or in sight of accused. Laxmi Sah, accused Balchand Sah caught hold of deceased Kamrul Alam and that accused Suresh Sah any Satyadeo Sah with their common intention to murder, intentionally or knowingly stabbed Kamrul Alam with their knives or chura twice each, causing four severe injuries to Kamrul Alam and the latter succumbed to his injuries. Laxmi Sah, accused Balchand Sah caught hold of deceased Kamrul Alam and that accused Suresh Sah any Satyadeo Sah with their common intention to murder, intentionally or knowingly stabbed Kamrul Alam with their knives or chura twice each, causing four severe injuries to Kamrul Alam and the latter succumbed to his injuries. All five eye-witnesses have supported in entirety the prosecution case as narrated by informant in his fardbeyan that from the taking place of stabbing to carrying of the victim injured to Sadar Hospital, Motihari where he was declared dead." 11. So far alibi of appellant No.3 Satyadeo Sah is concerned, the evidence in this regard has been considered in para 15 of the judgment as reproduced below: "15. The defence also examined four witnesses but their evidence mainly concerned to the plea of alibi taken in respect of accused Satyadeo Sah. DW 12 is a resident of village Sugaon, PS Sagauli. He said that Satyadeo Sah was Mama in relation: His elder brother had a san Bipin Sah who had blood cancer and that an 8-4-1990 he along with Satyadeo Prasad Sah had taken the ailing Bipin to Patna and had taken him to Dr. Sachchidanand Sinha of PMCH and the patient was forwarded to emergency ward for his treatment. He said that Satyadeo Sah (accused) had stayed with him and he had brought blood for the patient from blood bank Patna an 9-4-1990 and 11-4-1990 and that he (accused) remained with him at Patna uptil 15-4-1990 and they had returned back from Patna along with Bipin an 16-4-1990. He further said that later and Bipin died. He produced the identified prescription slip of Dr. Sachchidanand Sinha of the date an 8-4-1990 marked as Ext. A with abjection, in crass-examination. DW 1 failed to state Laxmi Sah were haw many brothers. He, stated that Laxmi Sah and Satyadeo Sah (father and san, bath accused) had married at Narkatiaganj. He failed to say haw many sisters and brothers accused Satyadeo Sah had. Further he said that his father had married at Semra but failed to say the name of father of his wife. Further he stated that he had not met Satyadeo Sah prior to 4th month of 1990. He lastly stated that he had not seen the writing and signature of that doctor before. He was suggested that the prescription slip was a fabricated document. Ext. Further he stated that he had not met Satyadeo Sah prior to 4th month of 1990. He lastly stated that he had not seen the writing and signature of that doctor before. He was suggested that the prescription slip was a fabricated document. Ext. A dated 9-4-1990 and is a printed paid page of Dr Sachchidanand Sinha with his medical qualification and on right hand side was printed Sinha Surgical Clinic with address of clinic and also the residential address of that doctor. The time of prescription issued noted as 9.15 p.m. DW 4 is clerk in New Swadesi Sugar Mill Narkatiaganj (West Champaran) who stated having taken Dasti Summon to the compounder, Shambhu Prasad Singh of Blood. Bank Patna and then said that he met Dhirendra Prasad Sinha of Blood Bank Patna and was informed that Shambhu Prasad Singh had left the service of Blood Bank Patna and his where about could not be known and hence he (DW 4) returned back. He identified the handwriting and signature of said Shambhu Prasad Singh on the two receipts of Blood Bank Patna, marked as Ext. B. He further stated that the officer in-charge Turkaulla PS. had given a letter addressed to Medical Officer I/C Patna Blood Bank Makhmahia Kuan Prubi Galli, requesting to supply photo-state copy of the register of blood bank having signature of Satyadeo Sah for verification of his signature and that he is dated 2-7-1990. DW 4 stated that he had taken that letter to Blood Bank Patna and got received the original of letter by Shambhu Prasad Singh and identified his signature as Ext. C. He lastly said that lie obtained photo-stat copy of relevant portion of the register of Blood Bank and later produced the same before the Court, marked Ext. D. He also said that the signature of accused Satyadeo is found at two places in that copy of register. In his cross-examination, DW 4, however, said that the 10 had not recorded his statement. He also failed to state the name of photo-stat studio in which the register of Blood Bank had been photographed. He admitted to be the pairvikar of accused persons; The Dasti summons issued by Court if any had not been proved. DW 4 has not stated the date when he had gone to serve Dasti summon to Shambhu Prasad Singh of Blood Bank Patna. He admitted to be the pairvikar of accused persons; The Dasti summons issued by Court if any had not been proved. DW 4 has not stated the date when he had gone to serve Dasti summon to Shambhu Prasad Singh of Blood Bank Patna. There appears an endorsement over Ext. C., allegedly made by Shambhu Prasad Singh that he received a copy and appending of his signature but the date of receipt is not mentioned and signature of Shambhu Prasad Singh is undated. Further, as said above, DW 4 identified the handwriting and signature of Shambhu Prasad Singh on the two receipts of Blood Bank (Ext. B). Both the receipts found written and signed in English over the printed form of Patna Blood Bank. The endorsement of receipt of copy over Ext. C allegedly made be said Shambhu Prasad Singh bears his full name in Hindi. Therefore, no room left for verification of signature of Shambhu Prasad Singh. Further both receipts Ext. B contain supply of 300C each, of Blood Group AB+ for Bipin Sah and 1st receipt dated 94-1990 with hour of supply, 1.30 a.m. and the other dated 11-4-1990 without mentioning hour of supply. In photo entry of blood bank register, it is noted that on 9-4-1990 at 1.30 a.m. only 150C.C. of AB+ group blood had been supplied and received by Satyadeo Sah though Ext. B indicates 300 C.C. of AB+ group of blood had been supplied to Bipin. It is further noted that in Ext. D on 11-4-1990 AB+ blood group 300 C.C. was supplied and received by. Satyadeo Prasad but the hour of supply has not been mentioned. The signature of Satyadeo Prasad is found appended in full but the style and spacing of letters are not in conformity in two signatures of accused Satyadeo who has the designation Sah in this case. In his statement under Sec. 313, Cr. PC he has not appended his signature but he has given L.T.I. He provided no room to get verified his signature with those found in Ext. D. and it appears he has done it purposely, and that rightly an inference can be drawn that the accused tried to concoct and fabricate the things in attempt of taking plea of alibi DW 2 is a resident of Senwaria Banks tola of same village. D. and it appears he has done it purposely, and that rightly an inference can be drawn that the accused tried to concoct and fabricate the things in attempt of taking plea of alibi DW 2 is a resident of Senwaria Banks tola of same village. He stated that at the time and on the date of occurrence all four accused persons were not present at that place." He further said that accused Satyadeo had gone to Patna before that occurrence for treatment of the Nati of his maternal aunt and had returned back home 4-5 days after in the house situated at Bankat tola of Shankar Saraiya panchayat and that in between Senwaria and Bankat the Masjid and Kabristan situated. Further he said that Jiut Pandit (DW 3) had the house in the northern Senswaria whereas the informant and accused persons had their houses in southern Seikh Patti. He was suggested having given evidence in different criminal cases and also had been prosecuted by one Skh. Daroga of Kawalpur. Be volunteered and said that the case instituted against him had been dismissed. DW 3 stated that on the date of occurrence at the village all four accused persons were not found. He also said that two days before accused Satyadeo had gone out to Patna for treatment of his Dhuphera Bhagina and that he returned back 4-5 days after. In cross-examination by prosecution, the said that he had not been keeping note of accused persons movement from the village. He said that Kamrul Alam had not been murdered in his presence but volunteered and said that he had seen Kamrul Alam lying there. He also asserted that his house situated in the northern part of Senwaria wheres the house of accused and informant situated in the southern part of that village. The evidence of DW 2 and DW 3 who failed to say as to where accused persons had been at the time of occurrence cannot be relied on point of alibi pleaded. In the statement under Sec. 313, Cr. PC accused Laxmi Sah has not taken any alibi and has simply denied the allegation against him. Accused Balchand Sah in his statement under Sec. 313 Cr. PC. has not taken plea of alibi but has simply said that he was ailing at that time. Accused Suresh Sah in his statement under Sec. 313. Cr. PC accused Laxmi Sah has not taken any alibi and has simply denied the allegation against him. Accused Balchand Sah in his statement under Sec. 313 Cr. PC. has not taken plea of alibi but has simply said that he was ailing at that time. Accused Suresh Sah in his statement under Sec. 313. Cr. PC has said that he was not present in his house on the day of occurrence but he has not stated where he had been on that day. It is only accused Satyadeo Sah has stated in his statement under Sec. 313. Cr. PC that two days before the occurrence he had gone to Patna for treatment of his Bhagina. Further he said that he had no knowlege about the occurrence. Accused Satyadeo Sah has not stated in his said statement on what day he had gone to Patna and on what day and what time he returned back home. It is the case of accused taking plea of alibi as such he himself must speficially state all things as to date time and movement during the period beyond his home village. The accused has not explained all these." 12. Learned trial judge has not found the evidence to be reliable to be accepted; Consequently the evidence of eye-witnesses coupled with postmortem report persuaded the trial Court to hold the appellants guilty for the murder of Kamrul Alam. 13. In this forceful argument Sri Suraj Narain Pd. Sinha, learned senior counsel assisted by M/s. Ashok Kumar Chaudhary. Udit Narain Singh and Ranjan Kumar Sinha, submitted that the evidence of eyewitnesses is full of lacuna and as such their evidence cannot be said to be trustworthy and reliable. Learned counsel submitted that the trial Court has completely overlooked the vital aspect of the case that admittedly the deceased after receiving injuries was carried to the State Dispensary accompanied by the complainant/informant at 7.30 p.m. the deceased was referred to Motihari Hospital where they reached at 11 p.m. whereas the route, if covered by a Jeep would take not more than 30 minutes. No explanation whatsoever had been given by the prosecution for the said three and half hours and this lends credence to the defence case that the prosecution party had themselves connived to eliminate the deceased and falsely implicated the appellants. No explanation whatsoever had been given by the prosecution for the said three and half hours and this lends credence to the defence case that the prosecution party had themselves connived to eliminate the deceased and falsely implicated the appellants. It is not possible to give any significant explanation since no question was put to the informant on that aspect. The evidence is that the informant and some villagers applied bandage to the wounds and then the deceased was carried on a cot upto Turkaulia Channel Bridge and from there he was taken to State dispensary on a jeep and from there to Motihari Sadar Hospital. It cannot be said that he had gone on jeep to Mothari from the place of occurrence. This contention is not tenable. 14. Learned counsel for the appellants further contended that the informant in his evidence did not say anything about the injuries caused to the fingers of the deceased. The informant has stated that right hand finger of the deceased was cut by the knife of one of the appellants. The trial Judge has rightly observed that the doctor might have overlooked this injury which finds mention in the inquest report and as such any importance cannot be given to this aspect of the case. Learned counsel next submitted that the eye-witnesses examined in the case cannot be said to be independent witnesses, particularly, when four other eye-witnesses, particularly, when four other eye-witnesses mentioned in the fardbeyan, namely, Chaukidar Ramagya Rai, Bharat Mahto, Shankar Mahto and Sudama Mahto, who are said to be residing in close vicinity of the occurrence were not examined, Although the answer given by the trial Court for not examining other witnesses may not appear to be convincing but it is not the defence case that these four persons were also witnesses to the occurrence. Admittedly, the informant and other witnesses had no enmity with the appellants and minor altercation led to stabbing of the deceased. In my view, non-examination of four charge-sheet witnesses was not desirable and they ought to have been examined but this will not render the evidence of other witnesses unsatisfactory. 15. It was next contended that there was vital discrepancy in the testimony of ocular witnesses i.e., PWs. In my view, non-examination of four charge-sheet witnesses was not desirable and they ought to have been examined but this will not render the evidence of other witnesses unsatisfactory. 15. It was next contended that there was vital discrepancy in the testimony of ocular witnesses i.e., PWs. 1 to 4 on the point of assault on the person of the deceased which strikes at the root of the prosecution story so far as the manner of occurrence is concerned, although the same discrepancies have been accepted to be true by Court below. 16. In my opinion, the learned trial Judge has rightly held that the discrepancies and variations in the evidence of the eye-witnesses cannot be said to be of serious nature to discard the whole prosecution case. I, therefore, do not find any merit in the contention that there is vital discrepancies in the evidence of the eye-witnesses with regard to manner of assault. 17. The evidence against appellant No.4 Suresh Shah is that he stabbed the deceased twice from front which injury proved to be fatal. 18. The case of Satyadeo Shah appellant No.3 stands on a different footing in view of overwhelming evidence brought on record in support of his plea of alibi, which has been disbelieved by the trial Judge. 19. In a recent decision the Supreme Court in Binay Kumar Singh V/s. State of Bihar (Paras Bigha Carnage case), considered the rule of evidence when a plea of alibi is set up by an accused as follows: "23. The Latin word alibi means "else-where" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence, has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counterevidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required, for establishing the plea of alibi. " 20. I have carefully examined the evidence and I find that during investigation alibi aspect was seriously investigated and the Investigating Officer was also satisfied that this appellant was away from the village. This fact was supported by a number of evidence. The police, therefore, submitted final form against this appellant but on protest petition filed by the informant the Chief Judicial Magistrate took cognizance without looking into the case-diary. Several independent witnesses of the village had spoken to the Investigating Officer that this accused Satyadeo Shah was not present in the village on the date of occurrence. Those independent witnesses were not examined. Chaukidar of the village was also not examined by the prosecution. He had stated before the Investigating officer about the absence of Satyadeo Shah. It was the duty of the prosecution to examine those witnesses. 21. I am, therefore, of the view that the appellant Satyadeo Shah could not have been convicted. I have no hesitation in coming to the conclusion that this appellant was not involved in the occurrence. However, he had remained in custody for about five years. 22. It was the duty of the prosecution to examine those witnesses. 21. I am, therefore, of the view that the appellant Satyadeo Shah could not have been convicted. I have no hesitation in coming to the conclusion that this appellant was not involved in the occurrence. However, he had remained in custody for about five years. 22. The next contention of the learned Counsel for the appellants is on the question of applicability of Sec. 302 Indian Penal Code in the facts and circumstances of the case. Learned Counsel strongly pleaded that considering the background of the occurrence, it can be safely held that the unfortunate occurrence had occurred on the spur of the moment and there is complete absence of pre-meditation and the fact is that the trivial matter led to murder of the deceased. 23. It is to be remembered that several injuries were inflicted on the deceased Kamrul Alam, some on vital parts and some on non-vital parts. It, therefore, goes without saying that the appellants were aware that the injuries which were going to be inflicted were likely to cause death or they mayor may riot have intended that injuries may cause death. In this view of the matter, it cannot be said that Balchand Shah and Suresh Shah are liable only under Sec. 304. Part I or Part II, IPC. The conviction of these appellants is amply proved. The judgment of the trial Court is correct so far these two appellants are concerned. 24. In the result the conviction of appellants Balchand Shah and Suresh Shah is affirmed. The conviction of appellant Satyadeo Shah is set aside and he is acquitted of the charges. Appellant Balchand Shah is on bail. He is directed to surrender forthwith for serving out remaining period of sentence. Appellant Suresh Shah is in custody. He shall serve the remaining period of his sentence. Appellant Satyadeo Shah is on bail. He is discharged from the liability of his bail bonds.