Judgment R.N.Sahay, J. 1. There are five appellants in this appeal. All the appellants are residents of village Raidih, P.S. Jasidih, District, Deoghar. The appellants were placed for trial before 1st Additional Sessions Judge, Deoghar, in Sessions Case No. 13 of 29 of 86/2 of 1986. The charge against the appellants was that they in furtherance of their common intention committed the murder of Angad Prasad Rai on 8th July, 1983 at village Ghorlash within P.S. Jasidih, District Deoghar. The appellants have been convicted under Sec. 302/34, I.P.C. and sentenced to life imprisonment. They have been convicted under Sec. 323/34, I.P.C. for beating Kusmil Rai but no separate sentence has been imposed for the said offence. 2. The case of the prosecution is narrated by the Addl. Sessions Judge in para 2 of his judgment as follows: On 7-7-85 some quarrel took place between the informant Kushmil Prasad Rai (P.W. 9) and accused Laljeet Prasad Rai, Lakhan Prasad Rai and Raghu Prasad Rai of village Raidih on account of damage of the paddy seedlings of the informant by the cattle of the accused-persons and also on account of some dispute regarding irrigation. At the intervention of Satyadeo Prasad Rai, Sukljhdeo Prasad Rai, Narendra Prasad Rai, Chakradhar Prasad Rai (Mukhiya) and other villagers of Raidih, it was decided to settle the matter amicably by Panchayati and informant Kushmil Prasad Rai also became confident of the settlement of the dispute by the Panchayati. Next day on 8-8-85 at about 9 a.m. informant Kushmil Prasad Rai (P.W. 9) was going to his school to attend his duty as a teacher along with his brother Angad Prasad Rai through village Ghorlash. When they reached railway line after crossing village Ghorlash all the accused-persons including Ramanand Rai (who was not sent up for trial) and six to seven unknown persons being armed with lathis, bhalas, rods and daggers surrounded and made attempt to assault them at which they both ran towards village Ghorlash. When the informant Kushmil and his brother reached near Ghorlash after crossing the river the aforesaid persons surrounded both of them near village Ghorlash. Accused Laljeet Prasad Rai and Lakhan Prasad Rai assaulted the informant with lathi and Jay Prakash Rai assaulted him with iron rod and injured him badly. Other persons also assaulted him. When the informant Kushmil and his brother reached near Ghorlash after crossing the river the aforesaid persons surrounded both of them near village Ghorlash. Accused Laljeet Prasad Rai and Lakhan Prasad Rai assaulted the informant with lathi and Jay Prakash Rai assaulted him with iron rod and injured him badly. Other persons also assaulted him. Angad Prasad Rai, brother of the informant was also attacked with lathi and iron rod by them and they gave Hurra blows with lathi and iron rods on his belly and chest and also trampled him by legs. Thus, both the informant Kushmil and his brother sustained serious injuries. During the course of the occurrence Ratan Rai (P.W. 2), Munna Rai (P.W, 10), Nageshwar Rai (P.W. 1), Harendra Rai (not examined) and others of village Ghorlash rushed to the place of occurrence and saved them and took them to the Jasidih Hospital where Angad Prasad Rai succumbed to the injury after some time. 3. On receipt of O.D. slips Baidya Nath Munnu, the then officer incharge of Jasidih police station on the same day at 11.30 a.m. made Station Diary Entry and proceeded to the Jasidih Hospital where he recorded the fardbeyan of injured Kushmil Prasad Rai. 4. Dr. Shraddha Singh, who was medical officer, Jasidih State Dispensary, examined injured Kushmil Prasad Rai at 10.30 a.m. on 8-7-85 and found following injuries: (i) On bleeding lacerated injury about size of 4" x 1/2" x whole scalp thickness over the left parietal region extending up to the forehead ; (ii) One bleeding lacerated injury about size of 1" x 1/4" x skin deep over the dorsal surface of left forearm with suspected fracture of underlying bones: (iii) One bleeding lacerated injury 1/2" x 1/6" x skin deep over the dorsal surface of right forearm with suspected fracture of undelying bone ; (iv) One lacerated bleeding injury 1" x 1/4" x skin deep over the front of the left leg. (v) One bleeding lacerated injury about size of 1" x 1/4" x skin deep over the front of right leg. All the above injuries were caused by hard and blunt substance such as lathi and iron rod and age of the injuries was within six hours. 5. Dr. (v) One bleeding lacerated injury about size of 1" x 1/4" x skin deep over the front of right leg. All the above injuries were caused by hard and blunt substance such as lathi and iron rod and age of the injuries was within six hours. 5. Dr. Narendra Narayan Das, Deputy Superintendent, Sadar Hospital, Deoghar performed post-mortem on the dead body of Angad Prasad Rai on 8-7-85 at 4.30 p.m. and found the following injuries: (A) The body was of average built and not decomposed. Rigor Mortis was present in limbs and slightly present in upper limbs: (B) Externally no marks of injury, whatsoever was found anywhere over the body, except a huge swelling over and around the umbilicus (Naval). On opening the abdomen-just when the skin of anterior abdominal wall was reflected off the fassan a hole of size 1.5" x 1" was observed just beneath the umbilicus. On removing the fasseal layer a rupture of the size 2" x 1" of the muscle of interior abdominal wall was found from which a gush of blood came out from within the abdominal cavity. On opening the abdominal cavity a rupture of mesenteric fold 1.5" x 1" in size and severing the big blood vessels within the fold was also seen. The rupture of both the muscle as well as mesentery was just beneath the umbilicus. No damage of any other vescord of abdominal cavity was found. On opening chest heart was normal in colour and cavities contained slight blood. In lungs nothing abnormal detected. Death, in his opinion, was due to severe shock and huge haemorrhage inside abdominal cavity on account of the rupture of anterior abdominal wall, muscle and mesentery and severing of big blood vessels inside the mesenteric fold. Rupture of muscle, mesentery and ruptures of big blood vessels inside the mesenteric fold may in turn be due to sudden and violent thrust over the umbilicus by a very stout hard and blunt substance such as lathi and iron rod if the deceased was wearing a thick garment. In the opinion of the doctor the injury was sufficient to cause death in the ordinary course of nature. Time elapsed since death within 18 hours. 6. In the opinion of the doctor the injury was sufficient to cause death in the ordinary course of nature. Time elapsed since death within 18 hours. 6. The defence case was that the occurrence did not take place in the manner, as alleged by the prosecution, rather some occurrence took place in village Raidih at about 9 a.m. on 8-7-1985. According to the defence the deceased Angad Rai and Kushmil Rai took their 15 to 20 heads of cattle in the field of accused Laljeet Rai in village Raidih and they left the cattle "to damage the seelings for retaliation of the occurrence which took place on the previous day but accused Laljeet Rai and his son Raghu Rai protested and accused Laljeet Rai began to drive out the cattle but the cattle became disturbed and Angad Rai and Kushmil Rai were injured by the thrust with the heads of the cattle. According to the defence, version the place of occurrence was changed from Raidih to Ghorlash as the accused-persons were on inimical terms with the villagers of the Chorlash due to previous litigation under Sec. 107, Cr. P.C. and villagers of Ghorlash became ready to oblige the informant by posing eyewitnesses to the occurrence. 7. The most important and competent witness is Kushmil Prasad Rai (P.W. 9), who admittedly was injured. This witness has deposed that a day prior to the occurrence, some dispute took place between him and accused : Laljeet Rai, Lakhan Prasad Rai and Raghu Prasad Rai for grazing of his paddy seedlings by the cattle of accused Laljeet Prasad Rai. An assurance was given by Satyadeo Prasad Rai, Sukhdeo Prasad Rai, Chakradhar Rai, Narendra Rai, Mukhya and other villagers of the village Raidih to settle the matter through Panchayati and he also agreed to settle the matter through Panchayati. The prosecution examined P.W. 1 Narsingh Rai, P.W. 2 Ratan Kumar Roy and P.W. 3 and P.W. 10 Manoj Kumar Rai who belong to village Ghorlash. P.W. 9 Kushmil Prasad Rai (informant) and his son Shyam Kr. Ray (P.W. 4) belong to Naindih. 8. The trial Judge has rightly observed that since the informant was injured, his presence cannot be doubted whatever the manner and place of occurrence may be. P.W. 9 Kushmil Prasad Rai (informant) and his son Shyam Kr. Ray (P.W. 4) belong to Naindih. 8. The trial Judge has rightly observed that since the informant was injured, his presence cannot be doubted whatever the manner and place of occurrence may be. The trial Judge has further held that since the informant was injured so undoubtedly his ocular version of the incident is of great value to the prosecution (1976 Cr. L.J. 1566). The learned Judge has examined the evidence of Kushmil Prasad Rai in detail. The learned Judge has summarised the evidence of Kushmil Prasad Rai as follows: He has stated that on 8-7-85, he was going to his school with his brother Angad Prasad Rai where he was working as a teacher. He was going through the village Ghorlash. When he reached near railway line, he saw Laljeet Prasad Rai, Lakhan Prasad Rai, Raghu Prasad Rai, Jay Prakash Rai, Kishan Rai, Ramanmand Rai and other six to seven unknown persons and he became afraid at their sight and he proceeded towards village Ghorlash leaving his cycle there. He has further stated that unknown persons remained on the way and all six persons named above chased him and his brother and surrounded them when they crossed the river. He has stated that accused Jay Prakash Rai was armed with iron rod and other persons were armed with lathis. They assaulted him in the field of Sachindra Mohan Rai and he fell down in the field. He sustained injuries in his head, leg and hand and there was bleeding injury in the head. There was fracture in his both hands. He has further stated that his brother Angad Prasad Rai came in his rescue but accused-persons surrounded him and assaulted him by Hurra of lathi and rod in his abdomen and chest. He has further stated that Angad Prasad Rai was wearing Dhoti, thick cotton shirt and thick banyan. He was assaulted in the field of Judhisthir Rai and he also fell down. He has further stated that accused-persons crushed him with legs also. He has further stated that when he and his brother were being assaulted in the meantime witnesses came. Thereafter, they were taken to Jasidih hospital where his brother Angad Prasad Rai succumbed to his injuries after some time. He has further stated that accused-persons crushed him with legs also. He has further stated that when he and his brother were being assaulted in the meantime witnesses came. Thereafter, they were taken to Jasidih hospital where his brother Angad Prasad Rai succumbed to his injuries after some time. He has further stated that the police officer came there and his fardbeyan was recorded which was read over and explained to him and he put his thumb mark on the same as he was unable to make his signature due to the injuries. He has further stated that he was taken to Deoghar hospital and thereafter, he was taken to Bhagalpur Medical College Hospital as his condition was serious. Thus, his fardbeyan (Ext. 4) was recorded by the police without delay within the hours from the occurrence. So there was no occasion for concoction. Under such circumstance, much significance should be attached to his fardbeyan as it was recorded by the police officer without delay with promptness. His evidence is consistent with the averments made in the fardbeyan. I find nothing in his evidence which may discredit his testimony. The learned Counsel for the defence has not cited any discrepancy on the basis of which the testimony of this witness can be challenged. The presence of this witness on the place of occurrence cannot be doubted. P.W. 5 Dr. Shraddha Sinha found five injuries of various dimensions on the different parts of his body. She found bleeding lacerated injury over the left parietal region which was about the size of 4" x 1/2" x whole scalp. She found bleeding lacerated injury over dorsal surface of left forearm with suspected fracture of underlying bones. She also found bleeding lacerated injury over the dorsal surface of right forearm with suspected fracture of underlying bone. She found lacerated bleeding injury over the front of the left leg and also over the front of the right leg. Injuries were caused by hard and blunt substance such as lathi and iron rods and injuries were aged within six hours. 9. The next witness was Shyam Kumar Rai son of Kushmil Prasad Rai. His evidence was that he followed his father and uncle and saw the entire occurrence. Injuries were caused by hard and blunt substance such as lathi and iron rods and injuries were aged within six hours. 9. The next witness was Shyam Kumar Rai son of Kushmil Prasad Rai. His evidence was that he followed his father and uncle and saw the entire occurrence. This witness was not named in the F.I.R. The learned Judge has accepted the evidence of this witness but in my opinion as he was not named in the F.I.R. the only the conclusion would be that this witness was present. The three witnesses have supported the occurrence as eye-witness who have inimical term with the appellants. In this regard, two documents have been filed to show that the family members of the witnesses and the family members of the accused-persons were on litigating terms. Ext. A is a notice of a proceeding under Sec. 107, Cr. P.C. issued by Sub-divisional Magistrate, Deoghar in the year 1983. Ext. A/1 is a notice issued by this Court in Cr. Misc. No. 4732 of 1983 to Jay Prakash Rai which shows that a petition was filed for quashing a proceeding under Sec. 107, Cr. P.C. which was initiated in between Shankar Prasad Rai and others of village Ghorlash and Janardan Prasad Rai and Ors. of village Raidih. The learned Judge has not given importance to the suggestion of the defence that the witnesses have deposed on account of enmity. 10. Narsingh Rai (P.W. 1) has deposed that on the day of occurrence at 9 a.m., he was going to his field with breakfast for his ploughmen in the field. When he reached the bank of river Kotaniya, he found Angad Prasad Rai and Kushmil Prasad Rai going in fast pace and they were unable to speak as they were running away due to fear. When he reached on the other side of the river, he saw six persons armed with lathi and rods running towards the direction Angad Prasad Rai and Kushmil Prasad Rai were running away. He found swelling on the navel of Angad Prasad Rai. It was argued that evidence of P.W. 1 is falsified by medical evidence that he saw swelling on the navel of Angad Prasad Rai. The learned trial Judge noticed this infirmity but did not give importance to this minor contradiction. He found swelling on the navel of Angad Prasad Rai. It was argued that evidence of P.W. 1 is falsified by medical evidence that he saw swelling on the navel of Angad Prasad Rai. The learned trial Judge noticed this infirmity but did not give importance to this minor contradiction. On the whole, I could not find any vital contradiction or discrepancy in the evidence of this witness. 11. As regards objective finding of the Investigating Officer, the Investigating Officer found sprinkled spots of blood on the place of occurrence as alleged by the prosecution. He also found Hurra marks at the place of occurrence. He also found trampling marks on the place of occurrence. 12. Learned Counsel for the appellants submitted that the case of the appellants was manufactured on the inspiration of Ghorelash, Roy families and ready facile support and blessing of Jasidih police. Five witnesses who were of Ghorelash Roy families are closely related among themselves as evident from cross-examination of P.W. 1 Nageshwar and some other witnesses. It has come in evidence from on account of proceeding under Sec. 107 Cr. P.C., the family members of accused-persons and family members of Ghorelash witnesses are on inimical terms. P.W. 1 Nageshwar in paras 3 and 4 has admitted that Raidih cultivators particularly accused have their paddy fields adjacent to their own lands in mouzas Raidih and Khawasdih and disputes over cutting or water draining off though not clearly admitted are undisputedly recurring. 13. Admittedly on 7-7-85 just a day before alleged occurrence there was a simple altercation between informant and his family members and accused Laljit and his sons over grazing of paddy seedlings which ended peacefully to be settled by village Panchayati. 14. Kuslim Prasad Rai, in his fardbeyan has stated that he was surrounded by 12-13 persons but in the Court he has stated that he was not surrounded but chased. One witness Ratan Kumar Roy has stated that near the railway crossing Rohini High School and Hanuman temple are situated. It was submitted that Kusmits version cannot be accepted because the victims could not run along distance of one mile or so and that too without any hulla or alarm by either party. Temple people and school people could have rescued so called victims if there was any truth in their version. It was submitted that Kusmits version cannot be accepted because the victims could not run along distance of one mile or so and that too without any hulla or alarm by either party. Temple people and school people could have rescued so called victims if there was any truth in their version. This circumstance is sufficient to rule out any incident at Ghorelash from railway line to alleged place of occurrence. 15. It was submitted that it is equally absurd and wild that so called alarm or cry of deceased or informant for the first time after crossing Kotina river in flight back journey could be transmitted or reach prosecution witnesses near the shop of Mukund Rai so that Ghorelash P.Ws. led by P.W. 10 Muna would rush from a long distance of over 400 yards intervened by high expansive Haveli of Ghorelash Rai of 25-30 families. As stated by P.W. 1 Nageshwar, the injured Kusmil and Angad were breath-less and voiceless due to fatigue, they could have hardly uttered a word. It was next submitted that it is mysterious that same assailants assaulting two brothers almost at the same place and same time with same weapons, would administer or operate different methods or ways in assault, while one was battered, lacerated with direct straight blows while the other was given blow with butt. The post-mortem report of Angad reveals that he received no external injury at all but only some tissue or organs inside abdomen behind intestines were affected. Such a condition is possible only when there is sudden forcible trust while the victim is unaware of it. Abrasions/bruise or laceration are inevitable on abdominal region if hard blows are administered in the sight, knowledge and view of the victim because involuntary tightening of the outer abdominal region. Hurra blows are alleged to have been showered while Angad is said to have been trying to ward off. 16. It was submitted that as per medical evidence the prosecution version is thoroughly incredible and liable to be rejected. The swelling on the navel of Angad was just an after effect of internal injuries after an hour or so and not by lathi or rod blow, so injuries of Kusmil were caused by forcible throwing off by a dash of a strong animal. No suggestion was given to this effect to the prosecution witnesses. 17. The swelling on the navel of Angad was just an after effect of internal injuries after an hour or so and not by lathi or rod blow, so injuries of Kusmil were caused by forcible throwing off by a dash of a strong animal. No suggestion was given to this effect to the prosecution witnesses. 17. No doubt, these submissions are not without substance but the question is whether the evidence of so many eye-witnesses including Kusmil who himself was injured can brushed aside only because some crucial point has not been explained by the prosecution. It is to be noticed that no witness was given any direct suggestion on the points on which the witnesses are sought to be discarded. 18. Let us have a quick look at the entire evidence. On 8-7-85 in the morning Kusmil Rai with his brother Angad left village Naindih. Kusmil at the relevant time was the Headmaster Belson school near Deoghar. Angad was going to purchase medicine at Deoghar. They were going on bicycle. The following facts emerge from evidence on record. (i) one has to cross the railway crossing at Ghorelash village. (ii) railway crossing is 7 kilometres from Ghorelash village. (iii) they were surrounded by Laljeet Prasad, Lakhan Prasad, Raghunandan Prasad, Jaiprakash Rai, Kishun Prasad Rai and Ramchandra Prasad Rai. All of village Raidih. They were variously armed with lathi, bhala and knife. (iv) two brothers apprehending danger ran to save their lives in a field towards Ghorelash village through which they had come. (v) they crossed river Kotania followed by six named accused-persons. (vi) the two brothers were overpowered by the accused-persons in the field of Sachindra where Kusmil was assaulted first. Laljeet Prasad Rai and Lakhan Prasad Rai assaulted the informant with lathi and Jaiprakash assaulted him with rod. Several injuries were caused to Kusmil. Angad was assaulted by lathi and rod. (vii) Nageshwar Rai had seen the two brothers crossing Kotina river followed by six named persons. Nageshwar Rai enquired from both the victims but no body answered him. In the meantime, some villagers of Ghorelash, namely, Ratan, Muna and Prem, on hearing alarm reached near the place of occurrence. They claim to have seen the entire occurrence. Ghorelash villagers took to two injured to Jasidih hospital. (viii) Sri B.N. Murmu, Officer Incharge, Jasidih police station reached on requisition from hospital. In the meantime, some villagers of Ghorelash, namely, Ratan, Muna and Prem, on hearing alarm reached near the place of occurrence. They claim to have seen the entire occurrence. Ghorelash villagers took to two injured to Jasidih hospital. (viii) Sri B.N. Murmu, Officer Incharge, Jasidih police station reached on requisition from hospital. He recorded the fardbeyan of Kusmil at 12 noon. Angad Rai died after minutes of reaching hospital. Kusmil Rai had suffered as many as five injuries caused by lathi and iron rod. Angad Rai had no external injury so the assault by all the accused-persons is ruled out. Angad Rai suffered a huge swelling over navel. (ix) On opening of abdomen autopsy surgeon found rupture of anterior abdominal wall. The death was due to severe shock and huge haemorrhage inside abdominal cavity. The injury was sufficient to cause the death in ordinary course. (x) Nageshwar Rai, aged about 70 years, is a chance-witness. He was coming to his field through the place of occurrence. When he reached near Kotania river, he saw Angad Prasad and Kusmil Prasad Rai crossing the river. This witness was unable to speak anything because they were running due to fear followed by the appellants. They are holding lathi and rod. This witness went to his field, from where he saw the occurrence. He saw the accused-persons assaulting Kusmil and Angad. Kotania river is 400 yards from Ghorelash village. This witness has answered all the questions put to him in the cross-examination. The evidence did not stop after seeing the two brothers because they were chased by the appellants. On the whole, the evidence of this witness does not suffer from any serious infirmity. (xi) Ratan Rai and Umesh Kumar & Munna reached the place of occurrence on hulla. Ratan Rai was inside the house at the time of occurrence and Munna was at the shop of Mukund. Other witnesses went to the place of occurrence along with others. (xii) So far as Nagendra Rai is concerned, he had gone ahead of these two witnesses. Ratan Rai and Munna Rai have spoken about assault on two brothers in detail. Their evidence appears to be convincing. The evidence of Kusmil Rai has been considered in detail. He being a victim of assault his presence cannot be doubted. (xii) So far as Nagendra Rai is concerned, he had gone ahead of these two witnesses. Ratan Rai and Munna Rai have spoken about assault on two brothers in detail. Their evidence appears to be convincing. The evidence of Kusmil Rai has been considered in detail. He being a victim of assault his presence cannot be doubted. So far as his son Shyam Kumar Rai is concerned, he poses to be an eye-witness but he could not be an eye-witness since according to other witnesses, he came after the occurrence. The evidence of Nagendra and Ratan Rai appears to be convincing. There is no ground not to accept the evidence of Kusmil Rai. (xiii) The defence of the appellants is that Angad Rai and Kusmil Rai got accidentally injured while they are trapped by the cattle which deserves to be rejected outright. Laljeet Rai was arrested in the village by the Investigating Officer. If there was any truth in defence version, he would have disclosed this fact to the Investigating Officer. I have no hesitation in accepting the finding of the trial Court that occurrence has taken place in Ghorelash village in the morning, as testified by the prosecution witness. 19 The next important question for consideration is whether the deceased was assaulted with intention to cause his death when he came to rescue of his brother Kusmil Rai. The object of appellant might be to teach and learn to Kusmil Rai of previous incident. The appellants have been rightly convicted for an offence under Secs. 323/34 and 147, I.P.C. 20. After giving my due consideration, all the relevant aspects, in my opinion, charge under Sec. 323/149 is not clearly established against the appellants. The deceased tried to save his brother Kusmil who was being assaulted. If there was intention to cause serious injury to Angad the accused-persons would have divided themselves in two parts. It appears that Angad was thrashed with lathi when he tried to rescue his brother as is the case in F.I.R. In my view, the appellants should be given benefit of doubt in respect of charge under Section 323/149, I.P.C. It is also evident that all the accused-persons had not assaulted Angad. Actually one of them thrust lathi on the abdomen of the deceased. 21. Actually one of them thrust lathi on the abdomen of the deceased. 21. In Badruddin V/s. State of U.P. -- , the main accused Nizamuddin was armed with knife dealt blows with knife and co-accused dealt blows with lathi. In evidence, it transpired that the accused was armed with lathi had assaulted two eye-witnesses and not the deceased. The Supreme Court observed: From the above facts, it is difficult to sustain the conclusion that there was common intention between the appellant and other persons to kill the deceased. Though establishing common intention is a difficult task for the prosecution, yet, however, difficult it may be, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of mind of all the assailants to commit the offence, be it pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the crime where direct evidence is not available, it has to be inferred from the circumstantial evidence. 22. In the present case, deceased Angad Rai was not assaulted by other accused-persons. One of them whose identity was not disclosed pushed lathi in the stomach of the deceased. 23. In the peculiar facts and circumstances of the case, I am inclinehe fardbeyg