S. K. KULSHRESTHA, J. ( 1 ) ALL the above appeals nave been filed by the accused against the Judgment dated 4-12-1992 of the learned Additional Sessions Judge, Suhagpur District Hoshangabad passed in Sessions Trial No. 159/91 by which they have been convicted u/s. 302 read with section 149 of the IPC and each has been sentenced to undergo imprisonment for life as also u/s. 147 IPC to rigorous imprisonment for 2 years. Both the sentences have been directed to run concurrently. Cr. A. No. 92/93 has been filed by accused Kishan and Gunchi Jagdish but Gunchi Jagdish has also filed Cr. A. No. 157/93 from jail. Likewise, Kishan has filed Cr. A. No. 160/93 as also Cr. A. No. 92193. All these appeals are therefore being disposed of by this common Judgment. ( 2 ) THAT about three days prior to 25-4-199 1 complainant Vinod and his companions had quarrelled with Ajab Singh of which a report was made by Ajab Singh at the police station. Actuated by revenge. Ajab Singh and his companions surrounded the house of Vinod Dube who managed to escape through the back door and entered the house of Komal Kuli but accused chased him upto that house with the result he ran from there to take shelter in the house of Saligram Vishwakarma. There he was surrounded by the accused who were armed with lathi, rod, hockey, knife and other weapons. Vinod Dube tried to run away but he was belaboured in the courtyard of the house and the accused assaulted him with their respective weapons on various parts of his body and dragged him to an open ground but on learning that the police was approaching, they fled away. The incident was witnessed by Pramila Dube sister-in-law of Vinod, Raghunath Nair, Kanjilal Kotwar, Komal Kuli, Saligram and other persons of the locality. Vinod Dube was taken to the hospital by the police where his report was recorded and on that basis FIR Ex. p 128 was recorded and the case under sections 147, 148, 451, 323 and 324 of the IPC was registered against the accused. ( 3 ) DR. Vinod Dube was taken to the hospital by the police where his report was recorded and on that basis FIR Ex. p 128 was recorded and the case under sections 147, 148, 451, 323 and 324 of the IPC was registered against the accused. ( 3 ) DR. U. K. Awasthy (P. W. 17) who was posted as Assistant Surgeon in the Community Health Centre, Piparia examined Vinod S/o Pannalal at 10 p. m. on being brought by Inspector B. S. Raghuwanshi of V. S. Piparia and noticed the following injuries on him: (1)I. W. on front of Rt. leg 4 below the knee 3 cm x 1 cm x bone deep. Bleeding was present. (2) I. W. 1cm x 1/2cm x bone deep situated one cm. below injury No. 1. (3) I. W. 1cm x 1/2cm x bone deep on the front of leg 6 below the knee. (4) Punctured wound with a small point on the medial aspect of Rt. leg 4 below the knee and fresh bleeding was present. It was 1/2 cm deep. (5) Swelling over the Lt. ankle. (6) Swelling with deformity over the Rt. forearm 4 above the wrist. (7) Abrasion on the lateral aspect of chest in lower part 6 cm x 2 cm. (8) I. W. on the forehead Rt. sick just adjacent to midline 1-1/2 cm x 1/4 cm x bone deep, 3 cm above the eyebrow. (9) I. W. on the parietal region 1/2 cm away from midline 6 cm x 1/4 cm x bone deep. (10) L. W. on head Rt. Side parietal region 2cm x 1/2 cm x bone deep just adjacent to midline. (11) Punctured wound on the Lt. leg 4 above the ankle 1/2 cm x 1/4 cm x bone deep. (12) L. W. on the outer aspect of Lt. leg 2 cm x 1/4 cm x bone deep. (13) Punctured wound with a very small point over the abdomen just above the inguinal region. It was a very small pointed wound 1/4 cm deep and fresh bleeding was present. (14) Multiple small abrasions on back of Lt. elbow and forearm. According to P. W. 17 Dr. Awasthy, Injury No. 1,2,3,8 and 9 had been caused by hard and sharp object while injury No. 4, 11 and 13 by some hard and pointed object. The other injuries had been caused by some hard and blunt object. (14) Multiple small abrasions on back of Lt. elbow and forearm. According to P. W. 17 Dr. Awasthy, Injury No. 1,2,3,8 and 9 had been caused by hard and sharp object while injury No. 4, 11 and 13 by some hard and pointed object. The other injuries had been caused by some hard and blunt object. He advised X-Ray of left ankle right forearm, skull and chest and referred the patient to District Hospital, Hoshangabad, for further examination and treatment after giving first aid to the patient. He has testified to his report Ex. P110. ( 4 ) ON 26-4-199 1, P. W. 18 Dr. N. Hasan had taken the skigram of the left ankle, right forearm, chest and scalp of Vinod S/o Pannalal and had found that there was a fracture of fibula lower end fracture of radius lower 1/3rd, surgical emphasema of the right side of chest and fracture of upper 1/3 shaft of left fibula. The Doctor has testified to his report Ex. P/12 and the accompanying Xray plates. ( 5 ) ON 25-4-1991 at 10. 45 p. m. , dying declaration of Vinod was recorded by P. W. 15 Ramjilal, Naib Tehsildar and Executive Magistrate, who has testified to having recorded dying declaration Ex. PT 15 in the Government Hospital, Piparia on 14-5-1991, Vinod died while he was in the hospital at 18. 45 of which information was sent to P. S. Hoshangabad, where Marg intimation was recorded and thereafter, Inquest was held and requisition was made for the post-mortem examination of the deceased. Dr. S. N. Katariya (P. W. 22) performed autopsy on the body of Vinod and recorded his injuries and gave his report Ex. P 126. As per the opinion of the Doctor, the cause of death was due to syncope as a result of anaemia due to excessive haemorrhage from the multiple injuries which appeared to be 20 to 22 days old. ( 6 ) DURING investigation, the spot map was prepared, weapons were seized from the accused on their information recorded u/s. 27 of the Evidence Act and the seized articles were sent to the Forensic Science Laboratory for examination and report of the Laboratory Ex. P 131 was received. After completion of investigation, the accused were prosecuted and tried. ( 6 ) DURING investigation, the spot map was prepared, weapons were seized from the accused on their information recorded u/s. 27 of the Evidence Act and the seized articles were sent to the Forensic Science Laboratory for examination and report of the Laboratory Ex. P 131 was received. After completion of investigation, the accused were prosecuted and tried. ( 7 ) THE accused denied the charges and stated that since Ajab Singh had lodged a report against deceased Vinod and one Vikram, they had been falsely implicated. The learned trial court however, found the accused guilty and convicted and sentenced them as stated above. ( 8 ) WE have heard the learned counsel for the parties and perused the record. ( 9 ) WHILE the learned counsel for the appellants has not disputed that Vinod died while he was in hospital for treatment of the injuries, learned counsel has submitted that the medical evidence does not even suggest that any of the injuries or the injuries cumulatively were sufficient in the ordinary course of nature to cause his death. According to the learned counsel, the deceased had died of anaemia which is nothing but weakness and. therefore the death could not be correlated with the injuries. ( 10 ) THE testimony of Dr. Katariya (P. W. 22) is clear on the point that the death of Vinod was on account of syncope resulting from weakness occasioned by haemorrhage. The Doctor had during post-mortem examination found both the chambers of the heart empty and the general condition as pale and anaemic. It is clear from the prosecution evidence that prior to the assault the deceased was in a healthy state and it was only as a result of the injuries that there was haemorrhage and the consequent loss of blood. Under these circumstances the injuries sustained by the deceased were the direct cause of his consequent death. The deceased had, thus, met a homicidal death. ( 11 ) THE prosecution has examined P. W. 11 Urmila. P. W. 12 Pramila and P. W. 13 Durgesh Paliwal to render the eye-witness account of the incident. P. W. 11 Urmila has deposed that on the date of the incident the accused persons had surrounded their house and had enquired about the deceased Vinod. ( 11 ) THE prosecution has examined P. W. 11 Urmila. P. W. 12 Pramila and P. W. 13 Durgesh Paliwal to render the eye-witness account of the incident. P. W. 11 Urmila has deposed that on the date of the incident the accused persons had surrounded their house and had enquired about the deceased Vinod. After a short while wife of Komal and South Indian woman had informed her that Vinod was being beaten and, therefore she had gone with her daughter-in-law Pramila to the place of the incident and had on reaching witnessed that Kishan, Ajab Singh, Guddu Patel were lifting and felling him down. She protested but the accused continued belabouring the deceased. After a while, police arrived and took deceased Vinod in the police Van to the hospital. P. W. 12 Pramila has deposed that Vinod, on seeing the accused, had run towards the house of Kamal and she had heard a commotion. She then went to the house of Durgesh Paliwal and called him and along with her mother-in-law she went to the spot and saw that accused were assaulting Vinod with lathi. Ballam and TGuptit. A short while, thereafter, the police had arrived and the accused had run away and the police had taken him to the hospital. Two other persons had also been taken by the police in the Van P. W. 13 Durgesh Paliwal has deposed that Pramila had come to his house running and had informed that Ajab Singh and his companions were beating Vinod. He had then, gone to the house of Saligram and witnessed that Ajab Singh, Kishan. Gunchi. Prakash and Pappu were belaboring him. He has testified that Ajab Singh was armed with a Knife, Kishan, had a Guptit, Prakash had an iron rod and Gunchi and Pappu, each had a Lathi. The police had then arrived and taken Vinod to the hospital. ( 12 ) THE evidence of three eye-witnesses is consistent with regard to the injuries having been caused by the accused persons by their respective weapon. P. W. 2 Sarma, has testified that there was a quarrel going on behind her house and Vinod was being beaten and she had, therefore, informed the mother of Vinod. The other witnesses namely P. W. 3 Kunjilal: P. W. 4 Komal. P. W. 2 Sarma, has testified that there was a quarrel going on behind her house and Vinod was being beaten and she had, therefore, informed the mother of Vinod. The other witnesses namely P. W. 3 Kunjilal: P. W. 4 Komal. P. W. 5 Mirabai, P. W. 6 Munnibai and P. W. 7 Pratap have also testified to a quarrel having taken place in which Vinod had been assaulted by a large number of persons. Under these circumstances the evidence of the eye-witnesses finds full corroboration from the evidence of the other witnesses who have also deposed to the fact that Vinod had been assaulted by a large number of persons the ocular testimony also finds corroboration from the dying declaration Ex. PIS which was recorded by P. W. 15 Ramjilal. Naib Tehsildar and Executive Magistrate on 25-4-1991 in the Government Hospital Piparia. In the dying declaration, the deceased had clearly stated the names of the accused and t hat they had entered into the courtyard and had assaulted him with lathi, rod, knife, etc. The report Ex. p /27 was made by the deceased while he had been taken to the hospital by the police. In Ex. P/27, the deceased had given a clear and consistent account of the incident indicating the complicity of the accused in causing him the injuries which were found on his body by P. W. 17 Dr. U. K. Awasthy. This report has been recorded immediately after the incident within 50 minutes thereof. Thus, the dying declaration and the report Ex. P /27 made by the deceased also corroborate the account of the incident rendered by the eye-witnesses and merely because the eye-witnesses P. W. 11 Urmila and P. W. 12 Pramila were related to the deceased Vinod their testimony is not rendered unreliable. The witnesses have given a cogent and consistent account of the incident which finds full corroboration from the medical evidence as also the dying declaration and Dehati Naleshi lodged by the deceased. The evidence, therefore, clearly establishes that the injuries found on deceased Vinod had been caused by the accused persons by means of the weapons with which they were armed. ( 13 ) LEARNED counsel has also submitted that in the report of the Forensic Science Laboratory, no blood stains were found on the weapons said to have been seized from the accused persons. ( 13 ) LEARNED counsel has also submitted that in the report of the Forensic Science Laboratory, no blood stains were found on the weapons said to have been seized from the accused persons. At the most, the absence of blood stains would she that the weapons seized may not have the weapons which were used in the incident or that the blood stains had been washed off but the absence. Of the blood stains on the weapons does not in any manner discredit or demolish the trustworthy evidence of the eye-witnesses about the participation of the appellants in the offence in question. ( 14 ) THE question that now falls for our consideration is whether the accused as members of an unlawful assembly, could be held guilty for an offence of murder punishable u/s. 302 of the IPC. ( 15 ) LEARNED counsel has laid a very great stress on the testimony of the Doctor in support of his argument that it has not been demonstrated that the injuries caused to the deceased were sufficient in the ordinary course of nature to cause his death and, therefore, the intention of the accused will have to be ascertained from the other circumstances. We find substance in this argument as, unless a clear intention to cause death of the deceased is demonstrated in the absence of the injury being individually and collectively sufficient in the ordinary course of nature to cause death the intention will have to be gathered from the attendant circumstances. ( 16 ) AS per the case of the prosecution all the accused have participated with various weapons including hard and sharp instruments like knife and Gupti. However, from the injuries recorded by Dr. Awasthy (P. W. 17), it is clear that a large number of injuries were inflicted on the lower parts of the body and the punctured wounds were not of any significant dimension to be eloquent of an intention to cause death. The injury found on the parietal region was also merely bone deep. The deceased died on account of anaemia as a result of the injuries but although in greater number, the injuries were not such as would be voluble of the intention to cause his death. The injury found on the parietal region was also merely bone deep. The deceased died on account of anaemia as a result of the injuries but although in greater number, the injuries were not such as would be voluble of the intention to cause his death. However, at the same time, it is clear that the accused participating conjointly as members of an unlawful assembly with weapons like iron rod lathi and knife had clear knowledge that they were likely to cause his death. The accused, thus would be guilty not u/s. 302/149 IPC but u/s. 304- II read with section 149 of the IPC. The conviction of the appellants for offence u/s. 302/149 of the IPC is set aside and they are instead, found guilty of offence u/s. 304-IT read with section 149 of the IPC and convicted for the same accordingly ( 17 ) IN the result, Cr. A. No. 92/93 filed on behalf of Kishan S/o Alam and Gunchi Jagdish jointly is rejected as redundant as they have also filed separate appeals through jail. The other appeals are partly allowed and while affirming the conviction of appellants u/s. 147 of the IPC and the sentence of 2 years rigorous imprisonment awarded to each of them thereunder, the conviction of the appellants u/s 302/149 of the IPC and the sentence of imprisonment for life awarded thereunder is set aside and they are, instead, convicted u/s 304-IT read with Section 149 of the IPC, and each of them is directed to undergo rigorous imprisonment for 7 years thereunder. Both the sentences shall run concurrently. They shall be entitled to set off u/s. 428 of the Cr. P. C. Appeal allowed partly. .