U. S. TRIPATHI, J. ( 1 ) THE above appeal has been preferred against the judgment and order dated 28-11-1980 passed by Sri S. S. Agrawal, the then learned Sessions Judge, Budaum, in S. T. No. 30 of 1980 convicting appellants Pemi and Janki under S. 148, 302 read with 149 I. P. C. and 326 read with 149 I. P. C. convicting appellants Hari Singh, Ram Chandra, Dalley and Jhamman under S. 147, 302 read with 149 I. P. C. and 326 read with 149 I. P. C. and convicting appellant Ramjeet under S. 148, 302 read with 149 I. P. C. and 326 I. P. C. and sentencing appellant Pemi and Janki to undergo R. I. for a period of two years under S. 148 I. P. C. , imprisonment for life under Ss. 302 read with S. 149 I. P. C. and R. I. for a period of three years under S. 326 read with 149, appellant Ramjeet to undergo two years R. I. under S. 148 I. P. C. , imprisonment for life under S. 302 read with S. 149 I. P. C. and three years R. I. under S. 326 I. P. C. Appellants Hari Singh, Ram Chandra. Dalley and Jhamman were sentenced to one year R. I. under S. 147 I. P. C. imprisonment for life Ss. 302 read with 149 I. P. C. and three years R. I. under Ss. 326 read with 149 I. P. C. ( 2 ) THE prosecution story, brietly stated, was as under :-Appellants Pemi, Dalley, Ramjeet and Hari Singh were residents of village Kali Ki Madaiya, P. S. Gunnaur. District Budaun Appeallant Ramjeet was cousin brother of appellant Pemi and appellant Hari Singh was son of appellant Ramjeet. Appellant Ram Chandra was resident of another village, but he had settled in village Kali ki Madaiya, as he was cousin brother-in-law of appellant Pemi. Appellant Janki and Dalley were sons of appellant Ram Chandra and appellant Jhamman was servant of appellant Pemi. ( 3 ) BABU Singh real brother of appellant Pemi was murdered prior to the occurrence of this case and Nem Chand deceased and others were accused in said murder case. Two months before the occurrence of this case. Nem Chand deceased and other accused of said murder case were acquitted by the Court of Sessions. ( 3 ) BABU Singh real brother of appellant Pemi was murdered prior to the occurrence of this case and Nem Chand deceased and others were accused in said murder case. Two months before the occurrence of this case. Nem Chand deceased and other accused of said murder case were acquitted by the Court of Sessions. On account of it, the appellants were having grudge against Nem Chand deceased. ( 4 ) ON 26-10-1979 Nem Chand (25) deceased along with his wife Smt. Bataso (P. W. 3) had gone to cut Bajara ears. After cutting Bajara ears they were returning to their house along with one bundle of Bajara ears each. Nem Chand deceased was few steps ahead to Smt. Bataso (P. W. 3) When the deceased reached in front of field of Sadhu, appellants Pemi, Janki and Ramjeet armed with Fawada and Hari Singh, Jhamman Ram Chandra and Dalley empty handed surrounded him. The deceased, throwing bundle of Bajara ears, ran towards field of Ram Prasad. All the appellants chased him, caught hold and made him fall down in the field of Ram Prasad. Appellants Hari Singh, Jhamman, Ram Chandra and Dalley pressed his hands and feet and appellants Janki, Ramjeet and Pemi inflicted injuries on his neck and head with Fawada. Smt. Bataso rushed and lay down on him to save him. Ramjeet inflicted Fawada injuries on her, due to which her left index finger was cut. The occurrence was witnessed by Jai Narain (P. W. 4) and Goverdhan (P. W. 5) on whose intervention the appellants ran away. Nem Chand died on the spot due to injuries. ( 5 ) SMT. Bataso (P. W. 3) called Chaukidar and went to police station Gunnaur, where she lodged oral report at 12. 45 P. M. Chik F. I. R. (Ext. Ka-2) was porepared by Head Constable Ram Charan Lal (P. W. 2), who made an endorsement of the same at G. D. report (Ext. Ka. 3) and registered a case under S. 147, 148, 149/326/323 and 302 I. P. C. against the appellants. ( 6 ) INVESTIGATION of the case was taken up by Sri Kali Charan Sharma, I. O. (P. W. 7 ). The I. O. interrogated Smt. Bataso (P. W. 3) at the police station and sent her to Primary Health Centre. Gunnaur, for medical examination. Thereafter, he reached the spot along with other Constables. ( 6 ) INVESTIGATION of the case was taken up by Sri Kali Charan Sharma, I. O. (P. W. 7 ). The I. O. interrogated Smt. Bataso (P. W. 3) at the police station and sent her to Primary Health Centre. Gunnaur, for medical examination. Thereafter, he reached the spot along with other Constables. Dead body of Nem Chand was lying in the field of Ram Prasad. The I. O. appointed punchas and conducted inquest and prepared inquest report (Ext. Ka. 5) and other relevant papers. He sealed the dead body and sent the same to mortuary for postmortem. The I. O. found a Fawada (Ext. 1) on the spot, which was blood-stained. He took it into possession, sealed and prepared recovery memo (Ext. Ka-8 ). The I. O. also took into possession blood-stained and simple earth from the spot sealed it in different containers and prepared recovery memo (Ext. Ka-9 ). The I. O. also found two bundles of Bajara ears and two sickles lying on the Service Road. He took them into possession and gave in supurdagi of Dori Lal, father of deceased, vide supurdaginama (Ext. Ka-10 ). The I. O. thereafter inspected the place of occurrence prepared site plan (Ext. Ka-11) and interrogated Jai Narain (P. W. 4) and Goverdhan (P. W. 5 ). ( 7 ) SMT. Bataso (P. W. 3) was medically examined at 7. 35 P. M. by Dr. V. M. Saxena (P. W. 1), who found following injuries on her person :-1. Incised wound 2 cm. x 0. 5 cm. x muscle deep on back and middle of left hand with clean and everted margins, oblique in direction. 2. Missing of 2/3rd part of index finger of left hand with clotted blood present around the wound. Margins clean cut. ( 8 ) IN the opinion of Dr. Saxena injury No. 1 was simple and injury No. 2 was grievous. Both the injuries were caused by sharp edged weapon and were about half day old. He prepared injury report (Ext. Ka-1 ). ( 9 ) AUTOPSY on the dead body of Nem Chand deceased was conducted on 27-10-1979 at 3 P. M. by Dr. M. V. Jugal (P. W. 6), who found following antemortem injures on his person :-1. Incised wound 5 cm x 1. 5 cm x muscledeep on left side of face. 1. 5 cm in front of tragus of right ear. M. V. Jugal (P. W. 6), who found following antemortem injures on his person :-1. Incised wound 5 cm x 1. 5 cm x muscledeep on left side of face. 1. 5 cm in front of tragus of right ear. The wound was lying horizontally. 2. Incised wound 6 cm x 1. 25 cm x muscle deep on anterio lateral aspect of right side neck upper third. 3. Incised wound 7. 25 cm x 13/4 cm x traches oesophagus deep (but not cut) on anterio lateral aspect of right side neck middle third lying obliquely horizontally. All the muscle under and in depth of wound were cut, common carotid artery and internal juglar vein cut completely under and in depth of wound. 4. Incised wound 4 cm x 1. 5 cm x muscle deep on anterio lateral aspect of neck right side 2 cm. below injury No. 3, lying horizontally. 5. Incised wound 3. 5 cm x 1. 5 cm x trachea on front neck, lower third, lying horizontally. Trachea hald cut anterio posteriorly, clotted blood present in the cavity of traches. 6. Incised wound 2. 5 cm x 1 cm x bone deep over the middle third of right clavicle bone. Clavicle bone cut partly. The wound lying horizontally and obliquely. ( 10 ) ON internal examination trachea was vertically half cut anterio posteriorly under injury No. 5. Common carotid artery of intra juglar vein right side cut under injury No. 3. Small intestine diffused with gases and large intestine contained faecal matter and was diffused with gases. ( 11 ) DR. Jugal opined that cause of death was due to shock and haemorrhage as a result of injury on right common carotid artery, intra juglar vein and trachea. The Doctor Prepared postmortem report (Ext. Ka-4 ). ( 12 ) THE I. O. apprehended appellants Pemi, Ram Chandra and Ramjeet on 28-10-1979 at Barwal Bus Stand at about 5 P. M. and appellants Dalley, Janki and Hari Singh on 29-10-1979. On 2-11-1979 he apprehended appellant Jhamman. On completion of investigation he submitted charge sheet (Ext. Ka-12) against all the appellants under S. 147, 148, 326, 323 and 302 I. P. C. ( 13 ) DURING trial appellants pleaded not guilty and contended that they were falsely implicated on account of enmity. The prosecution in support of its case examined Dr. V. M. Saxena (P. W. 1 ). Ka-12) against all the appellants under S. 147, 148, 326, 323 and 302 I. P. C. ( 13 ) DURING trial appellants pleaded not guilty and contended that they were falsely implicated on account of enmity. The prosecution in support of its case examined Dr. V. M. Saxena (P. W. 1 ). Ram Charan Lal (P. W. 2), Smt. Bataso (P. W. 3), Jai Narain (P. W. 4), Goverdhan (P. W. 5), Dr. M. V. Jugal (P. W. 6), Kali Charan Sharma (P. W. 7) and Constable Rajendra Singh (P. W. 8 ). Constable Bhawan Prakash (C. W. 1) was examined as Court witness. The appellants did not adduce any evidence. ( 14 ) THE learned Sessions Judge on considering evidence of the prosecution held that the prosecution successfully proved the guilt of the appellants for the offences punishable under S. 147, 148, 302/149, 326/149 and 326 I. P. C. simplictor. With these findings he convicted and sentenced them as mentioned above. ( 15 ) AGGRIEVED with their above conviction and sentences the appellants have come up in this appeal. ( 16 ) WE have heard Sri P. N. Mishra, learned Senior Counsel appearing for the appellants and the learned A. G. A. for the State and have gone through the evidence on record. ( 17 ) THE learned counsel for the appellants contended that prosecution story has not been established, as the F. I. R. was ante timed and prosecution has examined only inimical witnesses. Jai Narain (P. W. 4) was declared hostile and Goverdhan (P. W. 5) was inimical. The injuries of Smt. Bataso were manufactured subsequently and prosecution had not assigned any role to appellants Hari Singh,ram Chander, Dalley and Jhamman, as according to prosecution they caught hold the deceased, while there was no need of catching hold and that the act of appellants Pemi. Janki and Ramjeet comes under purview of S. 326 I. P. C. only. ( 18 ) THE appellants have not denied death and cause of death of Nem Chand deceased. The medical evidence of Dr. M. V. Jugal (P. W. 6) shows that the deceased had sustained incised wounds on his neck and face and injuries No. 3 and 5 resulted into cutting of common carotid artery and intra jugular vein as well as trachea. Dr. The medical evidence of Dr. M. V. Jugal (P. W. 6) shows that the deceased had sustained incised wounds on his neck and face and injuries No. 3 and 5 resulted into cutting of common carotid artery and intra jugular vein as well as trachea. Dr. Jugal categorically stated that the ante-mortem injuries of the deceased were sufficient to cause death in ordinary course. He further stated that all the injuries were caused by heavy sharp edged weapon like Fawada. The appellants have not challenged the above evidence of Dr. Jugal (P. W. 6 ). Thus, we find that prosecution has successfully proved identity, death and cause of death of Nem Chand. ( 19 ) THE occurrence took place at about 11 A. M. The report of the occurrence was lodged at 12. 45 P. M. , while the distance of police station was six Kilometres. The contention of learned counsel for the appellants was that the report could not be lodged at 12. 45 P. M. as the informant Smt. Bataso (P. W. 3) was wife of deceased and deceased had been done to death in her presence and she allegedly sustained injuries and in these circumstances she was not expected to lodge report so promptly. But having gone through the evidence of Smt. Bataso (P. W. 3) and affidavit filed by Head Moharrir Ram Charan Lal (P. W. 2) we find no force in the above contention. Smt. Bataso (P. W. 3) categorically stated that after the death of her husband on the spot she called Chaukidar and went to police station Gunnaur along with him where she dictated report. Head Moharrir Ram Charan Lal (P. W. 2) had deposed in his affidavit that Smt. Bataso lodged oral report at 12. 45 P. M. on 26-10-1979 to which he reduced into writing and made endorsement of the same in G. D. report. The learned counsel for the appellants drew our attention towards cross-examination of Smt. Bataso (P. W. 3) where she stated that after the occurrence several persons of the village including Rameshwar and Het Ram assembled on the spot. Rameshwar informed Daroga and her father-in-law. Chaukidar and other village people went to police station, Daroga came to spot and took her to police station. That her above statement shows that report was written after I. O. visited the spot. Rameshwar informed Daroga and her father-in-law. Chaukidar and other village people went to police station, Daroga came to spot and took her to police station. That her above statement shows that report was written after I. O. visited the spot. But if we go through entire evidence of Smt. Bataso we find that she has categorically stated that she lodged report first and thereafter, the I. O. came to the spot. No doubt she had given some confusing statement under the stress of severe cross-examination, but that confusing statement does not materially affect her testimony. By picking up some stray sentences from her statement it cannot be said that she lodged report after visit of the I. O. If we go through the entire statement of the witness it would appear that she went to police station, lodged report and thereafter, the I. O. visited the spot and conducted inquest. ( 20 ) THE learned counsel for the appellants further contended that injuries of Smt. Bataso (P. W. 3) were examined on 7. 35 P. M. and delay in medical examination shows that she had not come to the police station at the time claimed by her. But having gone through the evidence of Dr. V. M. Saxena and Constable Bhawan Prakash (C. W. 1) we find no force in the above contention. Constable Bhawan Prakash (C. W. 1) stated that she had taken Smt. Bataso (P. W. 3) to Primary Health Centre, Gunnaur for medical examination. The Primary Health Centre was at a distance of 2 furlongs from the police station and he reached there within 10-15 minutes. He handed over papers to the compounder, who said that Doctor had gone to his quarters and from there he would go to Babrala for some Government work. The doctor returned from Babrala at 7-6. 30 P. M. Then papers were shows to him and he examined Smt. Bataso. Thus, there is sufficient explanation from the side of prosecution for the late examination of injuries of Smt. Bataso (P. W. 3 ). ( 21 ) ACCORDING to prosecution occurrence took place on 26-10-1979 at about 11 A. M. in the field of Ram Prasad situate at village Kail ki Madaiya, P. S. Gunnaur, District Budaun. The appellants have not seriously disputed above date, time and place of occurrence. ( 21 ) ACCORDING to prosecution occurrence took place on 26-10-1979 at about 11 A. M. in the field of Ram Prasad situate at village Kail ki Madaiya, P. S. Gunnaur, District Budaun. The appellants have not seriously disputed above date, time and place of occurrence. The ocular witnesses Smt. Bataso (P. W. 3), Jai Narain (P. W. 4) and Goverdhan (P. W. 5) have stated that injuries on the deceased and Smt. Bataso were caused by spade (Fawada) in the field of Ram Prasad. There is no suggestion to above witnesses that the occurrence had not taken place on said date, time and place. The appellants have also not suggested any counter date, time and place of occurrence. The deceased died on the spot and Smt. Bataso (P. W. 3) sustained injuries in the same transaction. Dr. Jugal (P. W. 6) who conducted autopsy on the dead body of deceased opined that the deceased would have died on 26-10-1979 between 11-12 noon. However, in his cross-examination he stated that there might be difference of six hours in the above duration of death. As mentioned above the appellants have not suggested any counter time of death. Dr. V. M. Saxena also opined that injuries of Smt. Bataso were about half day old and he medically examined her at 7. 35 P. M. The report of the occurrence was lodged on the same day at 12. 45 P. M. In the said report date, time and place of occurrence is given as alleged by the prosecution. The I. O. visited the spot on same day and found dead body of Nem Chand deceased lying in the field of Ram Prasad. He alsofound blood on the spot. The presence of blood supports the place of occurrence as alleged by the prosecution. Therefore, the evidence of ocular witnesses regarding date, time and place of occurrence finds support from medical evidence, F. I. R. presence of blood and other circumstances of the case. The prosecution has, therefore successfully proved date, time and place of occurrence. ( 22 ) THE motive of the offence alleged by the prosecution was that Babu Singh real brother of appellant Pemi was murdered and Nem Chand deceased and other persons were accused in the said case. It is not disputed that the above case ended in acquittal prior to two months of the occurrence. ( 22 ) THE motive of the offence alleged by the prosecution was that Babu Singh real brother of appellant Pemi was murdered and Nem Chand deceased and other persons were accused in the said case. It is not disputed that the above case ended in acquittal prior to two months of the occurrence. The appellants, who are near relatives and well-wishers of Babu Singh, in all probability, had annoyance due to acquittal of deceased. ( 23 ) REGARDING manner of occurrence and complicity of appellants the prosecution relied on ocular testimony of Smt. Bataso (P. W. 3), Jai Narain (P. W. 4) and Goverdhan (P. W. 5 ). Smt. Bataso (P. W. 3) stated that she had gone to Bajara field to cut Bajara ears along with her husband. After cutting Bajara ears she was returning along with her husband through rasta taking one bundle. Her husband was few steps ahead. At about 11 A. M. he reached in front of field of Sadhu. Appellants Janki, Ramjeet and Pemi armed with Fawada and other appellants empty handed surrounded her husband in the rasta. Her husband threw bundle of Bajara ears and ran towards field of Ram Prasad. The appellants chased, caught hold of him hold and made him fall down in the field of Ram Prasad. Appellants Hari Singh, Jhamman, Ram Chandra and Delley pressed his hands and feet and appellants Janki, Ramjeet and Pemi inflicted Fawada injuries on him. She further stated that when she tried to save her husband by lying on his body, Ramjeet inflicted Fawada injuries on her due to which her left index finger was cut. ( 24 ) AS mentioned above Dr. V. M. Saxena, who medically examined Smt. Bataso found 2/3rd part of her index finger of left hand missing and an incised wound on back and middle of left hand. When the I. O. visited the spot, on the date of occurrence, he also found two bundles of Bajara ears and two sickles on the Service Road towards south of field of Ram Prasad. The presence of two bundles and two sickles shows that one other person had accompanied the deceased and the appellants had not suggested as to who was that other person. The presence of two bundles and two sickles shows that one other person had accompanied the deceased and the appellants had not suggested as to who was that other person. Contrary to it, there is direct evidence of the prosecution that Smt. Bataso had accompanied the deceased and was returning back with him with a bundle of Bajara ears. The presence of these articles is yet another factor to establish presence of Smt. Bataso with the deceased at the time of occurrence. ( 25 ) THE contention of learned counsel for the appellants was that injuries of Smt. Bataso were subsequently manufactured. We find no force in the above contention as nature of injuries was such that it could not be self suffered or self inflicted. It was further contended that the cut part of finger of Smt. Bataso was not found on the spot, which falsifies her presence. The place of occurrence was in field and the I. O. visited the spot after sometime of the occurrence. The possibility that by that time the cut part of the finger would have been taken out by some bird or animal or it had been buried under the earth by the footsteps of persons, cannot be easily ruled out. Therefore, non-recovery of cut part of finger does not falsify the presence of Smt. Bataso. Moreover, Bataso had lodged the report of the occurrence and her presence was also noted at the police station in G. D. The above facts and circumstances amply proved the presence of Smt. Bataso on the spot. ( 26 ) JAI Narain (P. W. 4) stated that at the time of occurrence he was operating his Persian wheel (Rahat) fixed in his field adjacent towards south of Service Road opposite to the field of Ram Prasad. He observed Nem Chand and behind him Smt. Bataso passing through Service Road. They were having one bundle of bajara ears each on their head. In the meantime, the appellants came and caught hold of Nem Chand deceased on the rasta. Appellant Ramjeet, Janki and Pemi were having Fawada and rest were empty hand. Nem Chand got him freed and ran towards north. The appellants chased him and caught hold of him in the field of Ram Prasad where appellants having Fawada started causing injuries on him. Smt. Bataso fell on her husband. Appellant Ramjeet, Janki and Pemi were having Fawada and rest were empty hand. Nem Chand got him freed and ran towards north. The appellants chased him and caught hold of him in the field of Ram Prasad where appellants having Fawada started causing injuries on him. Smt. Bataso fell on her husband. The appellants tried to remove her and in the course of it her finger was cut. Goverdhan (P. W. 5) was also passing through the rasta at the said time. However, in his cross-examinationthe witness stated that he could not recognise the assailants. The A. D. G. C. cross-examined the witness with the leave of the Court and in above cross-examination he stated that he had said before the I. O. that he would not give evidence, but he wrongly made him witness and previous statement was given by him under the influence of complainant. His evidence shows that in examination in chief he had supported the prosecution story in toto. However, in cross-examination he stated to have not recognised the assailants. Assuming that he did not recognise the assailants, he had fully supported the date, time and place of occurrence and that Fawada injuries were caused on the deceased and Smt. Bataso also sustained injuries in the same transaction. ( 27 ) GOVERDHAN (P. W. 5) stated that on the date of occurrence at about 11 A. M. he got down of the bus near Chak Road and was proceeding to his village. Nem Chand and his wife Smt. Bataso were also proceeding through said rasta and they were having one bundle each on their head. When Nem Chand reached towards the north of field of Sadhu appellants Pemi, Ramjeet and Janki armed with Fawada, appellants Hari Singh, Ram Chandra, Dalley and Jhamman empty handed caught hold Nem Chand saying that they would take revenge of murder of Babu Ram. Nem Chand got him free and ran towards north in the field of Ram Prasad. Appellants chased him caught hold of him and made him fall down in the field of Ram Prasad, where appellants Pemi, Ramjeet and Janki inflicted Fawada injuries on him. Smt. Bataso fell down on him to save him and her finger was cut. Nem Chand got him free and ran towards north in the field of Ram Prasad. Appellants chased him caught hold of him and made him fall down in the field of Ram Prasad, where appellants Pemi, Ramjeet and Janki inflicted Fawada injuries on him. Smt. Bataso fell down on him to save him and her finger was cut. ( 28 ) AN attempt was made from the side of the prosecution that this witness was inimical as Het Ram was his brother and according to evidence of Smt. Bataso, Het Ram was also accused with Nem Chand in the murder of Babu Ram Goverdhan (P. W. 5) also admitted that he had lodged report of robbery against Babu Singh, Pemi and Ramjeet 14 years ago and the accused of the said case were acquitted on 25-4-1967. He also admitted that case under Sections 107, 116, Cr. P. C. was also initiated between him and Pemi, Ramjeet and others. It appears that village of parties was friction ridden. It was impossible to have an independent witness in such a friction ridden village. Moreover, enmity is not the sole ground for rejecting the testimony of a witness. From the evidence of Goverdhan (P. W. 5) we find his presence on the spot natural and probable and his evidence also finds corroboration from other materials on record and evidence of Smt. Bataso and Jai Narain. Therefore, simply on the ground of enmity his testimony cannot be discarded. ( 29 ) AS discussed above we find that prosecution witness Smt. Bataso (P. W. 3) and Goverdhan (P. W. 5) have fully corroborated the manner of occurrence and the evidence of Jai Narain (P. W. 4) also lends support to the prosecution story and thus prosecution successfully proved its case. ( 30 ) THERE is specific evidence of the prosecution witnesses that appellants Janki, Ramjeet and Pemi inflicted Fawada injuries on the deceased. The learned counsel for the appellants contended that assuming that these appellants caused Fawada injuries on the person of deceased, their liability is not more than for the offence punishable under Section 326, I. P. C. We find no force in the above contention. The evidence of Dr. Jugal (P. W. 6) shows that the deceased had sustained as many as six incised wounds on his neck and face. The evidence of Dr. Jugal (P. W. 6) shows that the deceased had sustained as many as six incised wounds on his neck and face. The evidence of ocular witnesses proved that these appellants caused Fawada injuries on the deceased. The number of injuries indicates participation of all the above three appellants in causing repeated injuries. Dr. Jugal stated that injuries of the deceased could be caused by Fawada. He further stated that the injuries on the person of the deceased were sufficient to cause death in ordinary course of nature. The number of persons causing Fawada injuries and the number of injuries itself suggests that the blows were repeated. The nature and seat of injuries indicate that while causing injuries the appellants causing them had full intention and knowledge that in all probability those would cause the death of deceased and as such the act of above appellants Pemi, Ramjeet and Janki comes under the purview of Section 300, I. P. C. punishable under Section 302, I. P. C. Therefore, they are liable for the murder of the deceased and for causing grievous hurt with deadly weapon to Smt. Bataso. ( 31 ) REGARDING other appellants Ram Chandra, Dalley, Hari Singh and Jhamman it was contended that no specific role was assigned to them and it is alleged that theycaught hold and made the deceased fall down in the field of Ram Prasad and then the other three appellants inflicted Fawada injuries on him and that there was no necessity for catching hold and making the deceased fall down. It is true that the injuries of Nem Chand deceased in all probabilities were caused, while he was lying on earth and nature and seat of injuries show that it could not be caused in sitting or standing position. But as many as three persons were having spade and they also caught hold of the deceased. On being rescued the deceased ran and they also chased him. The above three persons were sufficient to catch hold and make the deceased fall down also as he was not having any weapon and the sickle possessed by him was thrown on the Service Road prior to his running. On being rescued the deceased ran and they also chased him. The above three persons were sufficient to catch hold and make the deceased fall down also as he was not having any weapon and the sickle possessed by him was thrown on the Service Road prior to his running. In these circumstances, without disbelieving the case of the prosecution and by way of abundant caution we are inclined to give benefit of doubt to appellants Ram Chander, Dallay, Hari Singh and Jhamman, as no active role was assigned to them and possibility of exaggeration in number of accused can also not be easily ruled out. ( 32 ) SINCE participation of Ram Chandra, Hari Singh, Jhamman and Dalley is doubtful, conviction and sentence of appellants Pemi, Ramjeet and Janki under Section 148 is liable to be set aside and conviction of appellant Pemi and Janki under Section 302 read with Section 149, I. P. C. and 326 read with 149, I. P. C. is liable to be converted under Section 302 read with Section 34, I. P. C. and under Section 326 read with Section 34, I. P. C. respectively while conviction of appellant Ramjeet under Section 302 read with Section 149, I. P. C. is also liable to be converted under Section 302 read with Section 34, I. P. C. ( 33 ) THE appeal preferred by appellants Ram Chandra, Hari Singh, Jhamman and Dalley is accordingly allowed and their conviction and sentences are set aside. They are acquitted of the offences to which they stood charged with. They are on bail, their bail bonds are cancelled and sureties discharged. They need not surrender. ( 34 ) THE appeal preferred by appellants Pemi, Ramjeet and Janki is partly allowed. Their conviction under Section 148, I. P. C. is set aside and they are acquitted of the said offence. They are on bail, their bail bonds are cancelled and sureties discharged. They need not surrender. ( 34 ) THE appeal preferred by appellants Pemi, Ramjeet and Janki is partly allowed. Their conviction under Section 148, I. P. C. is set aside and they are acquitted of the said offence. However, convictions and sentences of appellants Pemi and Janki under Section 302 read with Section 149, I. P. C. and 326 read with 149, I. P. C. is converted under Section 302 read with Section 34, I. P. C. and 326 read with Section 34, I. P. C. respectively and conviction and sentence of appellant Ramjeet under Section 302 read with Section 149, I. P. C. is also converted under Section 302 read with Section 34, I. P. C. With the above modifiction in their conviction appeal preferred by them is partly dismissed and sentences of imprisonment of life under Section 302 read with Section 34 and that of three years R. I. under Section 326 read with Sections 34 and 326 simpliciter are confirmed. ( 35 ) APPELLANTS Pemi, Ramjeet and Janki are also on bail. They shall surrender before Chief Judicial Magistrate, Budaun within three weeks to serve out the sentences. In case they fail to surrender within the said period, the Chief Judicial Magistrate, Budaun shall issue non-bailable warrants against them to secure their attendance and send them to jail to serve out the sentence. ( 36 ) OFFICE is directed to send copy of this judgment to Chief Judicial Magistrate, Budan, within a week for compliance and report within a month. Order accordingly.