Judgment R.N.Sahay, J. 1. This is an appeal against the judgment and order dated 4th March, 1986 of the 7th Additional Sessions Judge, Munger in Sessions Case No. 1 of 1979 convicting the appellants under Sec. 304 read with Sec. 34 of the Indian Penal Code in respect of the charge of committing culpable homicide not amounting to murder of Rajiv Ranjan Prasad Yadav in furtherance of common intention of all of them. There are four appellants in this appeal. The first appellant Arjun Yadav has also been convicted under Sec. 379 of the Indian Penal Code for committing theft of wrist watch. All the appellants have been sentenced to imprisonment for life. Arjun Yadav has further been sentenced to six months under Sec. 379, Indian Penal Code. 2. In the evening of 6th October, 1978 at about 5.00 p.m. six heads of she-buffaloes of the appellant Subuk Lal Yadav were grazing in the field of deceased Rajiv Ranjan Yadav in which Urd and Kurthi crops had been grown. The deceased was driving the buffaloes out of his field, when the incident happened in which Rajiv Ranjan lost his life. It is the prosecution case that all the appellants came to the place where Rajiv Ranjan Yadav was driving out the cattle. Arjun Yadav was armed with gun and the remaining appellants were armed with lathi. Appellant Subuk Lal, Naresh and Suresh assaulted the deceased with lathi. Rajiv Ranjan Yadav fell down. Then, Arjun Yadav assaulted him with butt end of the gun. Arjun Yadav also relieved the deceased with his wrist watch. In the meantime, there was hulla on which witnesses arrived and saw the occurrence, Rajiv Ranjan Yadav was brought to his house and then taken to Munger Police Station. Ramdeo Yadav, father of Rajiv Ranjan Yadav was not in the village at the time, He had gone to Munger in connection with some work. He was informed about the occurrence by some body. He went on bicycle to the Muffasil Police Station where he found his son on the road. He narrated the entire occurrence. 3. The appellants and the deceased all belong to village Touffir Karari Tola, P.S. Muffasil in the district of Munger where the occurrence had taken place. He was informed about the occurrence by some body. He went on bicycle to the Muffasil Police Station where he found his son on the road. He narrated the entire occurrence. 3. The appellants and the deceased all belong to village Touffir Karari Tola, P.S. Muffasil in the district of Munger where the occurrence had taken place. It is significant to mention that first information was registered on the statement of the deceased himself before the Officer-in-charge of Muffasil Police Station on 7-10-1978 at 8.45 a.m. Rajiv Ranjan Yadav died on the same day. 4. Post-mortem of the deceased was performed by Dr. Surendra Jha on 8-10-1978, He found that whole of the abdomen was disturbed and swollen and that on dissection there was echymosis in the muscles and sub-cutaneous tissues on both sides of abdomen and peritoneum and omentum was congested and that the peritoneal cavity was full of yellowish fluid and that the outer coat of the transverse colan was congested. There was congestion of outer coat of the small intestine at several places and that there was perforation measuring 3/4" diameter near the juncture of the palanic end of the stomach on the upper part of abdomen and that it was cavity deep and the margins were irregular and no evidence of ulcer could be found and that the stomach was empty except very little fluid and that the intestine contained faces and gas. The spleen liver and kidney were congested. On opening the chest and brain both the lungs were found congested and the right chamber of the heart contained blood but the left chamber was empty arid nothing abnormal was detected in the manenges or brain or bone of head. According to the doctor, the cause of death was peritonitis and shock as a result of perforation which was ante-mortem. 5. A number of eye-witnesses were examined by the prosecution. It would be useful to refer to the relevant part of the evidence. Upendra Prasad Yadav (P.W. 1) belongs to the same village to that of the deceased and the appellants. This witness at the time of occurrence was going from his house to Bisersian Bathan through Domania Dhar. Jogi Yadav (P.W. 2) at the same time had gone to answer the call of nature and he was returning through Domania Dhar. Upendra Prasad Yadav (P.W. 1) belongs to the same village to that of the deceased and the appellants. This witness at the time of occurrence was going from his house to Bisersian Bathan through Domania Dhar. Jogi Yadav (P.W. 2) at the same time had gone to answer the call of nature and he was returning through Domania Dhar. Panchanand Yadav (P.W. 3) had gone to the field near the place of occurrence. All these witnesses have spoken about the entire occurrence, there is consistent evidence that Subuk Lal Yadav, Naresh and Suresh assaulted the deceased Rajiv Ranjan Yadav with lathi and when Rajiv Ranjan Yadav fell down, appellant Arjun Yadav assaulted him with the butt end of the gun and also took away the wrist watch. Earliest statement was given by the deceased himself at the Muffasil Police Station which was recorded in the Station Diary. The Police Officer found superficial injuries on the person of Rajiv Ranjan Yadav and felt that the case was triable by the Gram Kutchery and decided to send the case to the Sarpanch of the Gram Panchayat of village Toffir. When Rajiv Ranjan Yadav died in the hospital, case was registered. 6. The statement of the deceased was treated to be dying declaration by the learned trial Judge. Learned trial Judge has summarised the evidence in paragraphs 10 and 11 of the judgment as extracted hereunder: 10. The statement of P.W. 1 Upendra Pd. Yadav is to the effect that accused Arjun assaulted the deceased with the butt end of the gun and that the remaining accused assaulted the deceased with the lathi. P.W. 2 however, stated that he saw that accused Arjun armed with gun and that the remaining accused were armed with lathi and that accused Arjun assaulted Rajiv Ranjan with the butt end of the gun and that Subuk Lal assaulted the deceased with lathi, P.W. 2 however stated that he did not see the remaining two accused-persons assaulting the deceased. P.W. 3 also likewise stated that accused Arjun assaulted the deceased with the butt end of the gun and that accused Subuk assaulted the deceased with the lathi. He has also stated that he saw the remaining two accused-persons also came there along with Arjun and Subaklal. P.W. 3 also likewise stated that accused Arjun assaulted the deceased with the butt end of the gun and that accused Subuk assaulted the deceased with the lathi. He has also stated that he saw the remaining two accused-persons also came there along with Arjun and Subaklal. From the statement of P.W. 2 in para 6, it appears that he Saw the occurrence from a distance of 20 cubits and that P.W. 3 stated in para 2 that he saw the occurrence from the distance of 5 or 6 lagga. It is, therefore, possible that they might have missed to see accused Suro and Naresh Yadav assaulting the deceased although they have stated that these two accused were also present there. Under the circumstances, I am not inclined to disbelieve the prosecution case on account of the aforesaid statement of P.Ws. 2 and 3 in this connection. It is also possible that the aforesaid statements of P.Ws. 2 and 3 may be on account of lack of memory. 11. Kusheshwar Yadav although did not see the accused assaulting Rajiv Ranjan but P.W. 5 has stated that when he was proceeding to the place of the occurrence on hearing the hulla, he found four persons fleeing away and that he identified accused Arjun armed with gun and accused Subaklal armed with lathi amongst above four persons and that the remaining two persons were also armed with lathi according to P.W. 5. Therefore, according to P.W. 5 there were two persons along with the accused Arjun and Subaklal who were fleeing away from the place of the occurrence. It is possible that P.W. 5 might not have identified the remaining two accused-persons from that distance. Therefore, it cannot be held that P.W. 5, has excluded the presence of accused Suro and Naresh Yadav. 7. On review of the evidence, it is to be noticed that the main role has been assigned to appellant Arjun Yadav who is said to have inflicted injury to the deceased by butt of the gun. The evidence, so far as this appellant is concerned is unimpeachable and in my considered opinion, the learned trial Judge came to the right conclusion in holding that this appellant is guilty under Sec. 304, Part-I of the Indian Penal Code. 8. Dr. The evidence, so far as this appellant is concerned is unimpeachable and in my considered opinion, the learned trial Judge came to the right conclusion in holding that this appellant is guilty under Sec. 304, Part-I of the Indian Penal Code. 8. Dr. Surendra Jha, autopsy surgeon found injury on the deceased which could have been caused by butt of the gun or by Hurra. Medical evidence ruled out any other injury caused by lathi. The evidence of the witnesses against remaining three appellants that they had first assaulted the deceased by lathi becomes doubtful. In this view of the matter, the next question for consideration is whether the deceased was assaulted in furtherance of common intention of all the four appellants. 9. Jogi Yadav (P.W. 2) has stated that he did not see Suro Yadav and Naresh Yadav assaulting the deceased with lathi. He, however, speaks of appellant Subuk Lal Yadav assaulting the deceased with lathi. Similarly, Panchanand Yadav implicated only Arjun and Suro. 10. In the facts and circumstances of the case, I am inclined to give benefit to doubt to appellants Subuk Lal Yadav, Suro and Naresh Yadav since medical evidence clearly negatives any assault by lathi. The presence of these appellants even if accepted would not render them liable under Secs. 304/34, Indian Penal Code in absence of positive evidence in this regard. 11. The conviction of the appellant Arjun Yadav under Sec. 304, Indian Penal Code is proper but question is whether he is liable under Part-I or Part-II of Sec. 304 of the Indian Penal Code. The injury was caused by butt of the gun. The injury No. 1 was grievous. I, therefore, find Arjun Yadav guilty under Part-II of Sec. 304 of the Indian Penal Code. This appellant has been sentenced to life imprisonment. Since the occurrence is of the year 1978, ends of justice would be met by reducing his sentence to imprisonment for five years and direct him to pay a fine of Rs. 2,000.00 and in default he will be liable for six months imprisonment. The fine, if realised, shall be paid to the dependant of the deceased. 12. In the result, this appeal is allowed in part as indicated above. The conviction and sentence of appellant Subuk Lal Yadav, Suro @ Suresh Yadav and Naresh Yadav is set aside and they are acquitted of the charges. The fine, if realised, shall be paid to the dependant of the deceased. 12. In the result, this appeal is allowed in part as indicated above. The conviction and sentence of appellant Subuk Lal Yadav, Suro @ Suresh Yadav and Naresh Yadav is set aside and they are acquitted of the charges. They are discharged from the liability of their bail-bonds. 13. This appeal is disposed of accordingly. 14. B.P. Sharma, J. I agree.