S. K. AGARWAL, J. ( 1 ) THESE two criminal appeals No. III of 1980 and 112 of 1980, filed by nine appellants, arise out of an order of conviction and sentence passed by the 1st Additional Sessions Judge, Shahjahanpur, on 11-1-1980. By the aforesaid order these appellants have been sentenced to undergo imprisonment for life under Sections 302/149. I. P. C. and rigorous imprisonment for one year under Sections 323/149, I. P. C. Accused Shiv Charan and Babu Ram were also convicted and sentenced two yearst rigorous imprisonment under Section 148, I. P. C. Accused Sita Ram, Pritam, Sri Krishna, Rameshwar, Hon1 Bhupal, and Shiv Raj Singh were also sentenced to one yearts rigorous imprisonment under Section 147. I. P. C. All the sentences were to run concurrently. ( 2 ) THE brief facts of the case, as available from the record are as under: Shaherdev was murdered by the appellants on 14-9-1978 immediately after the sun set. The motive for the murder as detailed in the F. I. R. and the evidence, is that the deceased had a quarrel with Sita Ram son of Jhaoo Lohar and Shiv Charan son of Bhupal on the issue of gambling. The deceased beat the two on account of this. The aforesaid two persons started nursing a grudge against him. Some six months before this incident, Shiv Charan and Sita Ram were arrested by the police of P. S. Katra for an offence under the Arms Act, Sita Ram andt Shiv Charan, on being released on bail told Shaherdev at the door of the first informant, Nanhey Lal, that they are instrumental in their arrest by the police and they will be taught a lesson. Since then Shiv Charan and Sita Ram were in the look out of an occasion to assault him. ( 3 ) THIS F. I. R. was lodged on 15-9-1978, a day before the lodging of the F. I. R. All the aforesaid appellants, viz. Since then Shiv Charan and Sita Ram were in the look out of an occasion to assault him. ( 3 ) THIS F. I. R. was lodged on 15-9-1978, a day before the lodging of the F. I. R. All the aforesaid appellants, viz. Sita Ram and Pritam sons of Jhaoo Lohar, Sri Krishan son of Pritam, Rameshwar son of Hon1 Hon son of Umrai, Bhupal son of Jai Lal, residents of village Khandsar, P. S. Katra, District Shahjahanpur and Sri Raj Singh and Babu Ram, Samdhi of pritam (father-in-law of the son Sri Krishan) out of the aforesaid persons, according to the evidence, Babu Ram was armed with a gun and Shiv Charan son of Bhupal was armed with a spear rest were armed with lathis. Out of the appellants, these persons (six accused) reside in the same village of which the deceased was also a resident. As soon as the deceased came out of his house on 14-9-1978, after the sun set, all these persons, who were armed with gun, spear and lathis, started belabouring him. The cries of Shaherdev attracted the informant, his son, Dodey Ram, and his wife, Ram Kumari. Apart from them, Bechey also reached the place of occurrence. The assailants also assaulted the witnesses, who came to save the victim. Sahardev, as a result of injuries caused to him by the appellants, breathed his last after a while. ( 4 ) THE F. I. R. of this incident was lodged next day at about 8. 36 A. M. by Nanhey Lal at P. S. Katra, District Shahjahanpur, Rais son of Babu Ram scribed it. This is marked as Ext. Ka-2 on the file. After the registration of the case the police arrived at the scene of occurrence and submitted a chargesheet after completing the necessary formalities in the court. ( 5 ) THE injured persons were sent for medical examination Nanhey, the informant, was medically examined at 2. 15p. m. on 15-9-1978. Following injuries were found on his person:1. Lacerated wound shaped 7 cm x 3/4 cm. x scalp on left side head 6 cm. above left ear. 2. Abrasion 3-1 /2 cm. x 2 cm. on back of left shoulder. Bechey was also medically examined at 2. 30 p. m. on the same day and four injuries had been found on his person (two lacerated wounds. one abrasion and a swelling ). x scalp on left side head 6 cm. above left ear. 2. Abrasion 3-1 /2 cm. x 2 cm. on back of left shoulder. Bechey was also medically examined at 2. 30 p. m. on the same day and four injuries had been found on his person (two lacerated wounds. one abrasion and a swelling ). The two lacerated wounds were on the shoulder. So far as, Smt. Ram Kuwar, wife of Nanhey Lal, is concerned, no visible injury was found on her person, except complaints of pain on various parts of her body. She was medically examined at 2. 45 p. m. on the same day. Dadey was also medically examined on the same day at 3. 00 p. m. and three lacerated wounds, two of which are on the shoulder and one is on inner side forearm middle, as also swelling were found on his person during medical examination. In all nine injuries were found. All these persons were medically examined by the Superintendent, Male Hospital, Tilhar, Shahjahanpur. ( 6 ) AUTOPSY was performed on the body of the deceased, Sahardev, on 16-9-1978 at 2. 30 p. m. An examination of the post-mortem report will show presence of a punctured wound brain cavity deep on the left side. Brain substance is coming out through the wound. Margin is clean cut. Apart from this injury, two more punctured wounds were found on the person of the victim. They are injuries No. 7 and 14. As many as 14 bruise were caused on the person of the victim. It will be relevant to mention here that Shiv Charan son of Bhupal was, according to the evidence on record, armed with a spear and Babu Ram son of Hon Lal as armed with a gun. It is categorical opinion of the Medical Officer, conducting the autopsy that the death is caused due to haemorrhage and shock as a result of injury No. 1. The autopsy had been conducted by Dr. B. C. Paul, P. W. 7. The post-mortem further clearly shows haemorrhage and rupture of the lower surface of membranes of frontal lobe corresponding to injury No. 1, along with multiple fissured fracture at the frontal fossa. Thus injury No. 1, which is a punctured wound with incised edges, clearly is the injury resulting into the death of the victim. B. C. Paul, P. W. 7. The post-mortem further clearly shows haemorrhage and rupture of the lower surface of membranes of frontal lobe corresponding to injury No. 1, along with multiple fissured fracture at the frontal fossa. Thus injury No. 1, which is a punctured wound with incised edges, clearly is the injury resulting into the death of the victim. ( 7 ) THE prosecution in this case, to prove the guilt of the appellants, has examines Nanhey Lal, Dodey Ram and Ram Bilas, PW5 1, 3 and 5, as eyewitnesses of the incident. Out of these eyewitnesses, Nanhey Lal and Dodey Ram are injured witnesses, Sunder Singh Yadav, PW 2, is the Head Moharrir, who had prepared the chick report and other documents pertaining to the lodging of the F. I. R Dr. RP. Gulati, P. W. 4, is the person who had examined the injuries of injured witnesses. Dr. B. C. Paul. P. W. 7 is the person who had conducted the post-mortem examination in the case, Siya Ram, P. W. 6, and Murari Lal, P. W. 8 are the Investigating Officers examined in the case. The defence has examined two witnesses, viz, Sadat Ali, D. W. 1, and Ramesh Chandra, D. W. 2. These witnesses have been examined on behalf of Pritam and his son. Sri Krishan to prove their alibi. D. W. 1, Sadat Ali, is a Compounder in the District Hospital, Bareilly. The wife of Sri Krishan was admitted as an indoor patient in that hospital in the month of September, 1978. It has been I stressed on behalf of these persons, Pritam and Sri Krishan, that they had been there in connection with the treatment of the wife of Sri Krishan on the date of occurrence. A perusal of their testimony does not impress us intrinsically on the point of alibi. The wife of Sri Krishan was admitted in the hospital c/c Ramesh Driver on 14-9-1978. This Ramesh, who had got her admitted in that hospital in the month of September, 1978 is working as a driver there. Appellant Sri Krishan happens to be a maternal cousin of his. The evidence of these two witnesses show that the lady was admitted by Ramesh Driver and these two accused appellants, may not have gone thereon the relevant date, i. e. on 14-9-1978 for her treatment. Appellant Sri Krishan happens to be a maternal cousin of his. The evidence of these two witnesses show that the lady was admitted by Ramesh Driver and these two accused appellants, may not have gone thereon the relevant date, i. e. on 14-9-1978 for her treatment. ( 8 ) IN Criminal Appeal No. 112 of 1980, Sita Ram has already died during pendency of his appeal. This fact is fortified from the report of the C. J. M, Shahjahanpur, dated 12-2-1996. In the other appeal, i. e. Criminal Appeal No. 111 of 1980, two appellants, viz. Hon and Sri Raj Singh, have also died during pendency of the appeal, as is available from the report of the C. J. M. dated 192-1996. The appeals of these three persons, thus, abate and are accordingly dismissed. ( 9 ) NOW, coming to the case of the other appellants, two arguments have been advanced by the learned defence Counsel. Firstly, he had tried to impress upon the factum of delay in lodging the report. His contention is that this delay in lodging the report is fatal for the case of the prosecution. The incident had taken place immediately after sunset. The distance of the police station from the spot of occurrence is four miles west-south. The F. I. R had been lodged at the concerned police station at 8. 36 a. m. the next day, i. e. on 15-9-1978. In our opinion, in the facts and circumstances of the present case this does not constitute any delay. One person has been done to death and four were injured in the incident. In these circumstances, the maker of the F. I. R is justified in starting in the early hours of the morning for lodging the F. I. R It will be pertinent to mention here that in the course of argument the learned counsel forthrightly abandoned this argument. ( 10 ) THE next limb of his argument is that no shifting of grain from the chaff was undertaken by the trial Court in convicting all the appellants under Sections 302/ 149, I. P. C. In our opinion, there appears to be some substance in the argument raised by the learned counsel for the appellants. In this connection the evidence is to be examined. In this connection the evidence is to be examined. ( 11 ) AS has already been stated, three eyewitnesses, Nanhey Lal, Dodey Ram and Ram Bilas were produced in the trial. We first take up the case of Babu Ram. A perusal of the testimony of Nanhey Lal shows that all the appellants started assaulting the deceased Sahardev with lathi and Bhala. This is available in paragraph No. 3 of the statement of Nanhey Lal. On a careful scrutiny of his statement, we do not find any role attributed to Babu Ram. A bald assertion had been made that he was present with other appellants with a gun. No specific role has been attributed to this appellant in the testimony of P. W. 1, Nanhey Lal. Similar is the situation of other injured witness, Dodey Ram, who happens to be the son of P. W. 1, Nanhey Lal. He too has stated in para 2 of his testimony that Babu Ram was armed with a gun. He has further specifically stated in his cross- examination in para 8 of his evidence that Babu Ram did not fire. He has made an improvement in his testimony in the court in para 2 that Babu Ram was exhibiting his gun and was saying that whosoever comes near the place of incident shall be killed. When cross-examined, he tried to assert that this statement was made by him to the 1. 0. also. He could not offer any explanation as to why this was not in his statement recorded under Section 161, Cr. P. C. Similar statement has been made by P. W. 5, Ram Bilas, with regard to this appellant. When cross-examined further, he, in para 7, had stated that the 1. 0. had recorded his statement under Section 161, Cr. P. C. He told about the role of Babu Ram, but could not say as to why this has not been found in his statement recorded under Section 161, Cr. P. C. ( 12 ) BABU Ram has stated in his: statement recorded under Section 313, Cr. P. C. that Pritam and Sri Krishan are his relatives and on this score he had been nominated in the case. It does not stand to reason that when Babu Ram was armed with a gun what prevented him from using the same upon the deceased. Sahardev. P. C. that Pritam and Sri Krishan are his relatives and on this score he had been nominated in the case. It does not stand to reason that when Babu Ram was armed with a gun what prevented him from using the same upon the deceased. Sahardev. For the foregoing discussion, we accept the contention raised on behalf of this appellant and acquit him of the charges for which he has been convicted. ( 13 ) NOW coming to the case of Shiv Charan, we find the evidence of the aforesaid three eyewitnesses wholly convincing. It has come in the testimony of these three witnesses that Shiv Charan was armed with a spear and he had along with Lathi was as assaulted the deceased. The testimony of P. W. 7 lends full corroboration to the case set up against this appellant by the prosecution. It has come in the testimony of P. W. 7, Dr. B. C. Paul that the death was caused due to excessive bleeding as a result of injuries, specially injury No. 1. In the post-mortem examination report. Ext. Ka-13, he had been very categorical that death has been caused due to haemorrhage and shock as a result of injury No. 1. Here, in his testimony, he had made some improvement to the effect that excessive bleeding was as a result of injuries caused to the person of the deceased, specially injury No. 1. In his opinion, the injuries sustained by the victim were sufficient in the ordinary course to cause his death. He has further categorically stated that this incident may be of 14-9-1978 after the sunset and punctured wound can be caused by a Bhala (spear) and the rest of the injuries could be caused by Lathi. No specific cross-examination of this witness had been made by the defence. Thus, taking into consideration the testimony of P. Ws. 1, 3 and 5. it can safely be concluded that this appellant can independently be her liable for the death of Sahardev. Injury No. 1 is the fatal injury being on the head. Extensive damage under this injury has been caused. All the aforesaid three witnesses stated that this appellant was armed with a Bhala and he had also participated in the incident. Presence of punctured wound with incised markings clearly provides corroboration of his participation. Injury No. 1 is the fatal injury being on the head. Extensive damage under this injury has been caused. All the aforesaid three witnesses stated that this appellant was armed with a Bhala and he had also participated in the incident. Presence of punctured wound with incised markings clearly provides corroboration of his participation. In view of categorical medical opinion, we hold him guilty for the death of Sahardev independently under Section 302. I. P. C. ( 14 ) NOW, coming to the participation of the other surviving appellants, these all were armed with Lathis. The post-mortem examination report of Sahardeo shows that these appellants, no doubt, have participated in the assault upon the victim. There were as many as seven Lathi was as and in all 14 blunt weapon injuries were present on various parts of the person of Sahardev. All the witnesses have clearly attributed them the role of assault on the victim. No-doubt the injuries sustained by the victim were as many as 17 in number out of which 14 were blunt weapon injuries being contusion (bruise ). The Medical Officer has stated in his testimony that the death was the result of haemorrhage, i. e. excessive, bleeding, specially due to injury No. 1. He has further gone on record to say that the injuries sustained by the victim were sufficient in ordinary course to cause his death. But we are of the opinion that other appellants, armed with Lathis,. may not had the intention to kill Sahardev. Some of the appellants are related to the two appellants Shiv Charan and Sita Ram, who bore some grudge against the victim before this occurrence. From the testimony of the three eyewitnesses including the two injured, viz. Nanhey Lal and Dodey Ram, it is not open to us to conclude that all the appellants, armed with Lathis, had the intention to kill the deceased. Sahardev. The only intention, which we can gather from the testimony of these witnesses and the medical evidence, is that they had an intention to teach the deceased a lesson. We find only one bruise on the head, but there is no opinion with regard to that it was also fatal lie injury No. 1. The F. I. R. shows that these appellants only intended to give him a beating. We find only one bruise on the head, but there is no opinion with regard to that it was also fatal lie injury No. 1. The F. I. R. shows that these appellants only intended to give him a beating. The specific words words used in the F. I. R. are mame ki phirak me rahne lage. The statements of the eyewitnesses do not provide us any indication of their intention to kill. One of them i. e. Shiv Charan, was armed with a sharp cutting weapon. Lathi too is commonly used as a weapon of assault. Grievous hurt was caused to the deceased. These appellants must be knowing that death is likely to result from their joint assault though they may not have initiated the assault with the common object to kill. Their common object may have been only to teach the deceased a lesson. Shiv Charan alone appears to have exceeded that common object. ( 15 ) IN these circumstances, it leads us to conclude that these remaining appellants cannot be held guilty under. Section 302 read with Section 149, I. P. C. Consequently, in our opinion, the prosecution case against remaining appellants does not travel beyond the ambit of Sections 326/149, I. P. C. Accordingly, we convict them under Section 326/149, I. P. C. ( 16 ) IN the result, we accept the Criminal Appeal No. 112 of 1980 filed by Babu Ram. He is acquitted of all the charges. He is on bail. His bail bond and the surety bonds stand discharged. He need not surrender. ( 17 ) SO far as Shiv Charan is concerned, his appeal fails for the reasons recorded above. His conviction and sentences for various offences are confirmed. ( 18 ) SO far as appellants, Pritam, Sri Krishan, Rameshwar and Bhupal are concerned, we alter their conviction from Sections 302/149, I. P. C. to one under Sections 326/149, I. P. C. and sentence each of them to six years rigorous imprisonment. Their sentences on other counts are also confirmed. All the sentences shall run concurrently as earlier ordered by the learned I Addi. Sessions Judge, Shahjahanpur. All the appellants including Shiv Charan are on bail. Their bail, bonds and surety bonds are cancelled. These appellants shall be taken into custody forthwith to serve out their sentences, as amended, confirmed and modified by us in this Criminal Appeal No. 111 of 1980. Sessions Judge, Shahjahanpur. All the appellants including Shiv Charan are on bail. Their bail, bonds and surety bonds are cancelled. These appellants shall be taken into custody forthwith to serve out their sentences, as amended, confirmed and modified by us in this Criminal Appeal No. 111 of 1980. Appeals disposed of accordingly. .