JUDGMENT 1. - The appellants nineteen in number, were the accused on the file of the learned Additional Sessions Judge Baran bearing Sessions Case No. 63/1993. They were found guilty under sections 302/149, 307 and 307/149 of the Indian Penal Code convicted and sentenced as follows- Accused appellants: Sharwan Lal, Ram Gopal,) Hem Raj, Tola Ram Devi Lal) Ram Swaroop, Ram Kumar,) Narayan, Ganga Ram, Ramlal) Raju, Chauthmal, Gobrilal) Babulal son of Dhanna Lal) Babulal son of Kedar Lal) Satya Narain, Mathuralal) Narottam and Bal Ram) U/s. 302/149 IPC each to undergo imprisonment for life and fine of Rs. 100/- in default to further undergo one month rigorous imprisonment. Accused appellants: Sharwan Lal, Ram Gopal and) Balram) Under section 307 IPC each to undergo seven years R.l. and fine of Rs. 100/- in default to further undergo one months R.l. Accused appellants: Hem Raj, Tola Ram Devi Lal) Ram Swaroop, Ram Kumar, Narayan, Ganga Ram, Ramlal) Raju, Chauthmal, Gobrilal) Babulal son of Dhanna Lal) Babulal son of Kedar Lal) Satya Narain, Mathuralal) and Narottam) U/s. 307/149 IPC each to undergo seven years R.l. and fine of Rs. 100 in default to further undergo one month R.l. All the sentences had to run concurrently. 2. In the instant criminal appeals the accused appellants seek to set aside the impugned judgment of conviction and sentence passed against them by the learned Additional Sessions Judge Baran. 3. Briefly stated the facts leading to instant appeal are these. An FIR was lodged by one Jodhraj at Police Station Baran on February 11, 1993 for the incident alleged to have taken place on the same day at about 12.00 noon. It was stated in the FIR that the accused persons 19 in number came to the house of Chauth Mai (deceased) and surrounded it. When Chauthmal came out, accused Ram Gopal inflicted sword blow on his jaw on account of which he fell down. Birdhi Bail came to his rescue, and accused Sharwan inflicted sword blow on her person. Accused Ram Gopal inflicted injury on the hand of Kalyani Bai by sword. Accused Balram opened fire by 12 bore gun and caused injury on the head of Badrilal. Hem Ram caused injury by Dharia on the head of Jodhraj and accused Shrawan and Satya Narain inflicted injuries by sticks. Thereafter all the accused persons gave beating to Chauthmal and ran away. Police Station. Accused Balram opened fire by 12 bore gun and caused injury on the head of Badrilal. Hem Ram caused injury by Dharia on the head of Jodhraj and accused Shrawan and Satya Narain inflicted injuries by sticks. Thereafter all the accused persons gave beating to Chauthmal and ran away. Police Station. Baran registered a case under section 307/148 IPC, and investigation commenced and after the death of Chauthmal offence under section 302 IPC was also added. After completion of investigation charge sheet was filed and the cases was committed to the Sessions Court from where it was transferred to the court of Additional Sessions Judge Baran, who framed charges under sections 302/149, 307, 307/149 IPC. The accused persons denied charges and claimed trial. Prosecution examined as many as 27 witnesses and exhibited 81 documents. After examination of the accused persons under section 313 Cr.P.C., one witness was produced in support of defence version by the accused persons. The learned trial court after hearing the arguments convicted and sentenced the accused as indicated hereinabove. 4. An attempt was made by Mr. Gupta, learned counsel for the accused to shatter the prosecution case on various grounds. It was canvassed that the FIR (Ex.P. 2) is a concocted and fabricated document. As per the statement of Raghunathi Bai (P.W. 5) the police reached at the spot much before the registration of the FIR. It is established from record that police had information of the occurrence and after recording it in Rojnamcha the police reached at the spot but Rojnamcha was not produced and the police deliberately suppressed the report, which was virtually the first information report. The delay in sending the FIR to the Magistrate also create suspicion about the prosecution story. It was further contended that no reliance can be placed on the testimony of the alleged eye witnesses as they are related to the deceased and there are material contradictions in their statements. Witnesses Birdhi Bai (P.W. 1), Badri Lal (P.W. 2), Jodhraj (P.W. 3) and Ram Kalyan (P.W. 11) were not present at the time of incident according to alleged dying declaration (Ex.P. 45) of the deceased. The dying declaration (Ex.P. 45) cannot be relied upon as the prosecution has failed to establish that it was the deceased Chauthmal who gave statement to the Magistrate Prabhulal Ametha. The dying declaration (Ex.P. 45) cannot be relied upon as the prosecution has failed to establish that it was the deceased Chauthmal who gave statement to the Magistrate Prabhulal Ametha. There are material contradictions in the statements of Police Constable Shambhu Singh and Prabhu Lal Ametha. The age of the deceased according to his injury report was 45 years. The deceased was medically examined at about 2 p.m. whereas his alleged dying declaration was recorded at 5 p.m. In the dying declaration the age of the deceased was shown as 36 years. Dr. Soni who attested the dying declaration was not produced. The conviction of the accused is based on surmises and conjectures and the accused deserves to be acquitted. Mr. S.S. Hassan and Mr. Arvind Bhardwaj, learned counsel also adopted these arguments. Authorities cited by the learned counsel shall be dealt with at the appropriate juncture. 5. Per contra, Mr. R.S. Agarwal, learned RR supported the impugned judgment and urged that the accused appellants were rightly convicted by the trial court. The testimony of the injured eye witness is of sterling worth and they were rightly believed. There was no delay in lodging the FIR. Telephonic information cannot be treated as an information for the purpose of investigation. It is not an FIR. Dying declaration (Ex.P. 45) was recorded by the Magistrate and it cannot be disbelieved. Reliance was placed on various judicial pronouncements, those will be referred in the later part of the judgment. 6. Mr. R.S. Agarwal, learned P.P. made an application under section 311 read with section 482 Cr.P.C. to summon Dr. R.K. Soni with the Bed Head Ticket of deceased Chauthmal. We have heard the rival submissions on this application also. We do not see any goods reason to allow the application. It is accordingly dismissed. 7. In order to appreciate the submissions advanced before us it is necessary to have a close look at the evidence adduced by the prosecution. 8. Birdhi Bai (P.W. 1) specifically stated that Gopal inflicted sword blow on the head of Chauthmal, when she intervened she was also hit by sword on her head by Gopal. Sharwan also inflicted blow on her head and back by a sharp edged weapon whether it was sword or Gandasi she did not know. 8. Birdhi Bai (P.W. 1) specifically stated that Gopal inflicted sword blow on the head of Chauthmal, when she intervened she was also hit by sword on her head by Gopal. Sharwan also inflicted blow on her head and back by a sharp edged weapon whether it was sword or Gandasi she did not know. She also deposed that Balram opened fire and injured Badrilal and Hemya, Sharwan, Tolya and Deva also gave beating to Jodh Raj. In her cross examination she stated that she only informed police about Sharwan who inflicted sword blow on her forehead. She also stated that she became unconscious after receiving the injury. She disowned her earlier statement under section 161 Cr.P.C. (Ex.D. 1). 9. Badri Lal (P.W. 2) only identified accused Ram Gopal in the court and stated that he did not know other accused persons. This witness is not the inhabitant of village Kalmarda where the occurrence had taken place. 10. Jodh Raj (P.W. 3) could not identify accused Satya Narain in the court. He stated that accused Ram Gopal inflicted injury on the jaw of deceased Chauthmal. Sharwan inflicted sword blow on the forehead of Birdhi Bai. Hemraj inflicted Dharia blow on his hand. Ram Gopal caused sword injury on the hand of Kalyani Bai. Bal Ram opened fire and caused injury on the elbow of Badrilal. Satya Narain inflicted lathi blows on his legs. In his cross examination he stated that he sustained as many as ten twelve injuries. According to him the police reached at the spot and got his signatures on some written papers. Thereafter he proceeded towards police station on foot and reached at the police station at 2.30 p.m. He had gone to the Hospital and shown all his twelve injuries to the Doctor. He also went to see Chauthmal who was unconscious. He did not have any talk with Chauthmal as he became unconscious throughout till his death. 11. Raghunathi Bai (P.W. 5) attributed injuries to Gopal and stated that Gopal inflicted sword blows on the head, jaw and fingers of Chauthmal and Kalyani sustained sword injuries on the forehead. In her cross examination she deposed that police did not record her statement. 12. Kali Bai (P.W. 6) is the wife of the deceased. She stated that Ram Gopal inflicted sword blows on the head and jaw of Chauthmal. Sharwan also inflicted injuries. In her cross examination she deposed that police did not record her statement. 12. Kali Bai (P.W. 6) is the wife of the deceased. She stated that Ram Gopal inflicted sword blows on the head and jaw of Chauthmal. Sharwan also inflicted injuries. Ram Gopal also inflicted injuries to Kalyani. Sharwan inflicted on the head of Birdhi Bai. 13. Kalyani Bai (P.W. 7) attributed injuries on the person of Chauthmal to Gopal and Sharwan. She stated that Gopal inflicted sword blow on her person and Sharwan inflicted sword blow to Birdhi. In her cross examination she stated that she had only see Chauthmal lying on the ground. 14. Anandi Bai (P.W. 9) had seen Gopal and Sharwan inflicting Dharia and Gandasi blows to Chauthmal. 15. Saucer Bai (P.W. 10) stated that Gopal and Sharwan inflicted sword blows on the person of Chauthmal. 16. Ram Kalyan (P.W. 11) deposed that Ram Gopal inflicted sword blows on the head, jaw and fingers of Chauthmal. Sharwan inflicted Dharia blow on his legs. Satya Narain and Narottam gave beating to Birdhi Bai. Balram opened fire at Badri Lal. Mathuralal gave beating to Badri Lal. In the cross examination Ram Kalyan stated that he only disclosed to Ram Chandra Telephone owner that Ram Gopal killed Chauthmal. 17. Now we proceed to consider the injuries alleged to have been 5 sustained by deceased Chauthmal and other persons. Deceased Chauthmal was medically examined on February 11, 1993 at 2.50 p.m. by Dr. Umesh Sharma P.W. 13. Ex.P. 15 is the injury report in which the age of Chauthmal was shown as 45 years. As per the injury report Chauthmal sustained as many as six injuries, out of which two were incised wounds of fronto parietal region and k right mandible region. Dr. Umesh Sharma in the said injury report opined that the dying declaration of Chauthmal may be arranged soon. Jodhraj sustained two abrasions on left hand and left leg. Ex. P/11 is the injury report. Injury report of Badrilal is Ex. P/12 and he sustained as many as five injuries. Birdhibai sustained six injuries, out of which three were incised wounds over fronto parietal region of skull. Ex. P/13 is her injury report. Kalyani Bai sustained three injuries, out of which one was lacerated wound on left arm. Ex. P/14 is her injury report. Postmortem report of Chauthmal is Ex. P/12 and he sustained as many as five injuries. Birdhibai sustained six injuries, out of which three were incised wounds over fronto parietal region of skull. Ex. P/13 is her injury report. Kalyani Bai sustained three injuries, out of which one was lacerated wound on left arm. Ex. P/14 is her injury report. Postmortem report of Chauthmal is Ex. P/19 and his cause of death was head injury and other injuries leading to severe shock. 18. This brings us to the alleged dying declaration of Chauthmal. Ex.P. 44 2 is the statement of Chauthmal recorded under section 161 Cr.P.C. by ASI Shambhu Singh (P.W. 23) and Ex.P. 45 is the dying declaration recorded by Shri Prabhu Lal Ametha the Additional Munsif and Judicial Magistrate No. 2. Baran. 19. For the proper appreciation of the aforequoted dying declaration we 2 deem it proper to discuss the statements of Shri Prabhulal Ametha (P.W. 26) and Shri Shambhu Singh (P.W. 23). 20. Shambhu Singh (P.W. 23) in his examination in chief stated that he recorded the statement (Ex.P. 44) of Chouthmal on Feb. 11, 1993 in the Hospital. In is cross examination he deposed that he took the Magistrate to the 3 Hospital, but he did not go along with the Magistrate inside the Hospital. He stated as under : "MAIN ASPTAL KE BAHAR HI RAH GAYA THA MAGISTRATE SAHEB SAFAKHANE KE ANDAR GAYA THHE. JAB MAGISTRATE SAHEB BAYAN LEKAR AAYE TO MAIN UNKO JEEP MAIN LEKAR UNKE GHAR CHHOD AAYA." (English Translation : "I remained outside the Hospital and Magistrate Sahib went inside the Hospital. When Magistrate Sahib came out after recording the statement I took him in the jeep to his house." 21. Shri Prabhulal Ametha Magistrate who recorded the dying . declaration (Ex.P. 45) of the deceased, stated that Shambhu Singh did not inform that he earlier recorded the statement of Chouthmal under section 161 Cr.P.C. He also stated that he did not recollect whether there was any injury on the jaw of Chouthmal or not. He further deposed that- "ASPTAL MAIN JAB PAHUCHA TO MUJE SHAMBHUSINGH NE INGIT KIYA THHA KI YEH CHOTHMAL HAI AUR DOCTOR SAHEB BHI THHE YEH SAHI HAI KI JAB MAIN BED PAR PAHUCH GAYA TO MAINE SHAMBUSINGH SE HEE DOCTOR KO BULAYA" (English Translation : "When I reached the Hospital, Shambhu Singh put his finger towards Chouthmal and said that he was Chouthmal. Doctor was also present. It is correct to say that when I reached near Bed I asked Shambhu Singh to call duty doctor." 22. A look at the alleged dying declaration Ex.P. 45 demonstrates that it was recorded in the question answer form. Dr. R.K. Soni made a note at the top to the effect that Chauth Mai was fit to give statement. Chauthmal in his declaration stated that incident had taken place inside his house. Ramgopal, Tolaram, Sharwan Lal, Rampal, Ramlal, Narain, Chouthmal, Raju, Debilal, Ramswaroop, Ram Kumar quarreled with him. Ramgopal Meena inflicted sword blow on his head. Kalyan, Radhey Shyam, Narain Kunti and Chandrabadan intervened. Ramlal Chamar inflicted Dharia on the head. Chauthmal Chamar gave beating on legs and Raju Chamar gave beating on cheeks. Kali Bai, Rugnathi Bai, and Sauser Bai were present at the spot. Material contradictions are evident in the statements of Shambhu Singh and Prabhulal Ametha. On the one hand Shambhu Singh categorically stated that he did not enter into the Hospital and Magistrate alone had gone to record the statement whereas Magistrate Prabhulal Ametha deposed that it was Shambhu Singh who pointed his finger towards Chouthmal and called Dr. Soni. There is a material difference in the age of Chauthmal shown in the injury report (Ex.P. 15) and the dying declaration (Ex.P. 45). Dr. Umesh Sharma (P.W. 3) recorded the age of Chauthmal in Ex.P. 15 as 45 years whereas Shri Prabhu Lal Ametha Magistrate in the dying declaration Ex.P. 45 mentioned his age as 36 years. Mr. A.K. Gupta, learned counsel for the appellants vehemently canvassed that Chouthmal remained unconscious throughout and was not in a position to speak. Some one else was shown to the learned Magistrate in place of Chauthmal and this was the reason that age of Chouthmal was shown as 36 years in the dying declaration Ex.P. 45 whereas the actual age of Chouthmal was 45 years as may be seen from his injury report Ex.P. 15. Mr. A.K. Gupta, learned counsel further urged that contradictions in the statement of Prabhulal Ametha and Shambhu Singh should be viewed seriously. The prosecution has failed to establish beyond reasonable doubt that it was deceased Chauth Mai who gave the statement to Magistrate and was in a fit condition to give the statement. We shall deal with the contentions of the learned counsel in the later part of the judgment. The prosecution has failed to establish beyond reasonable doubt that it was deceased Chauth Mai who gave the statement to Magistrate and was in a fit condition to give the statement. We shall deal with the contentions of the learned counsel in the later part of the judgment. 23. The above discussions lead us to the following facts : (i) All the eye witnesses consistently named appellants Ram Gopal and Sharwan as the assailants having inflicted sharp edged injuries on the person of the deceased Chauthmal, Kalyani Bai and Birdhi Bai. (ii) There is a material different in the age of the deceased Chauthmal shown in the Ex.P. 15 and Ex.P. 45. (iii) Magistrate Prabhulal Ametha deposed that Shambhu Singh introduced Chouthmal to him and called Dr. R.K. Soni but Shambhu Singh, ASI, stated that he did not go inside the Hospital and Magistrate Prabhulal Ametha alone entered the Hospital. (iv) as per the injury report Ex.P. 15 deceased Chouthmal sustained incised wound measuring 6"x 1" bone deep on right medibular region. (v) The FIR Ex. P/2 was registered at 12 noon on Feb. 11, 1993 but it was sent to the Magistrate at 1.35 p.m. on Feb. 12, 1993. (vi) The police had reached at the place of occurrence before institution of the FIR and got signatures of Jodhraj P.W. 3 on some written papers. 24. We now take the first contention of the learned counsel for the appellants that the prosecution did not produce any independent .eye witness and attempt to prove its case only through interested witnesses who are the near relatives of the deceased Chouthmal. In such a situation where the independent witness, inspite of being available were not produced, the conviction cannot be sustained merely on the testimony of highly interested witnesses. 25. In so far as eye witnesses are concerned they are nine in number out of which four had sustained injuries at the time of occurrence. The ground that witnesses were family members of the deceased and thus highly interested and ought not to have relied upon is devoid of merit. Mere relationship does not disqualify a witness. Their Lordships of the Supreme Court in Sahib Singh v. State of Haryana (1997) 7 SCC 231 indicated that `Even if the possibility of independent witnesses being present is not ruled out, the witnesses to the deceased would still be competent witnesses. Mere relationship does not disqualify a witness. Their Lordships of the Supreme Court in Sahib Singh v. State of Haryana (1997) 7 SCC 231 indicated that `Even if the possibility of independent witnesses being present is not ruled out, the witnesses to the deceased would still be competent witnesses. All that has to be shown is that the witnesses were stating the truth. The court itself in order to find out whether what that had stated was true or not would scrutinise their evidence with care and caution." 26. We will scrutinise the testimony of the eye witnesses a little later but before that we advert to the other submissions of the learned counsel for the appellants in regard to withholding of telephonic message, delay in dispatching the FIR and dying declaration of the deceased. 27. The evidence on record indicates that the police had reached at the place of occurrence on receiving the telephonic message. Therefore the question which has to be examined is as to whether information given on telephone can be held to be the FIR of the occurrence. It appears from the record that telephonic message given to the police was only a request to Officer Incharge of the Police Station to reach the place of occurrence. In Ram Singh Bavaji Jadeja v. State of Gujrat 1994 Cr.L.R. (SC) 303 , their Lordships of the Supreme Court propounded that `if the telephonic message is cryptic in nature and the officer in charge proceeds to the place of occurrence on the basis of that information to find out the details of the nature of the offence, itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be First Information Report." 28. That takes us to the another submission of the learned counsel for the appellants in regard to registration and delay in despatch of the FIR. Learned counsel vehemently canvassed that the FIR came to be registered at 12.00 noon on February 11, 1993 but was sent to the court of Magistrate on February at 1.35 p.m. Court of Magistrate was not far from the police station and Inspector Ram Singh Meena (P.W. 25) in his cross examination stated thus- "YEH BAAT SAHI HAI KI US DIN F.I.R. DO BAJE CHAK HO CHUKI THI. AUR AGAR MAIN CHAHATA TO USE ADALAT MAIN USI DINANK KO PANCH BAJE TAK BHIJWA SAKTA THA." (English Translation : It is correct that FIR was registered at 2.00 p.m. on that day and had I wished it could have been sent to the court on the same day till 5 p.m.) 29. For the purpose of corroborating the ocular testimony adduced at the trial, the FIR is an extremely vital and valuable piece of evidence in the criminal case. Delay in instituting FIR quite often results in embellishment which is a creature of afterthought. Because of delay the FIR not only gets bereft of the advantage of spontaneity, doubt of colour version crops in the mind. There is a possibility of concocted story and over implication of the accused persons. Their Lordships of the Supreme Court in Ishwar Singh v. State of U.P. ( AIR 1976 SC 2423 ) indicated that the extraordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence.In Marudanal Augusti v. State of Kerala ( AIR 1980 SC 638 ) Hon'ble Supreme Court observed thus : "The most serious infirmity which appears in the case is that although the FIR was lodged on the mid- night of 23/24.6.1971 it was dispatched to the Sub Magistrate and received by him at 5.30 a.m. on the 25th June, 1971 that is to say there was a delay of as many as 29 hours in the receipt of the FIR by the Sub Magistrate. The Investigating officer inspite of being questioned on this matter, does not appeal to have given any explanation whatsoever for this delay." In the instant case also no explanation is forthcoming as to why there has been such delay in sending the FIR to the Magistrate but the Police Inspector Ram Singh Meena (P.W. 25) bravely admitted that had he wished the FIR could have been sent to the court on the same day till 5 p.m.Under these circumstances we have legitimate basis for suspecting that FIR in the instant case was recorded much later than the stated date and hour and possibility of over implication of the accused persons can not be ruled out. 30. In so far as the arguments in regard to dying declaration Ex.P. 44 is concerned we find it impossible to believe that the deceased even if conscious would have made such a detailed statement. The statement alleged to have been recorded by Shambhu Singh ASI under section 161 Cr.P.C. smacks of concoction of fabrication. Shambhu Singh nowhere stated in Ex.P. 44 that at what time and at which place the said statement was recorded. No independent witness had attested it and it violates the mandates of the Rajasthan Police Rules which require that if the police officer wants to record the dying declaration he should ensure the presence of at least two independent persons. 31. On a very careful perusal of the dying declaration Ex.P. 45, we find some inherent defects and improbabilities which could not persuade us to accept the said dying declaration as a truthful and voluntary. Following intrinsic circumstances throw serious doubt on the prosecution case- (i) Dr. R.K. Soni who could establish that the deceased Chauthmal was in a fit condition to give the statement was not produced. (ii) The prosecution could not establish beyond reasonable doubt that the person whose statement was recorded by Magistrate Prabhulal Ametha was none other than Chauthmal. Magistrate Prabhulal Ametha recorded the dying declaration of a person who was identified as Chauthmal by ASI Shambhu Singh. But Shambhu Singh stated that he did not go inside the Hospital alongwith the Magistrate. Chauthmal was medically examined by Dr. Umesh Sharma and in the Injury report of Chauth Mai (Ex.P. 15) his age was shown as 45 years whereas the Magistrate in the dying declaration recorded the age of Chauthmal as 36 years. As per injury report (Ex.P. 15) Chauthmal sustained incised wound 6"x1" bone deep on his jaw but the Magistrate deposed that he did not recollect as whether there was any injury on the jaw or not. (iii) All the eye witnesses including the wife of the deceased stated that after the incident Chauthmal never regained consciousness and he succumbed to the injuries. 32. After having carefully scrutinised the FIR and dying declaration, we no proceed to consider the testimony of eye witnesses, the question that emerges at this juncture is as to whether after suspecting the FIR and rejecting the dying declaration can be testimony of injured eye witnesses be discarded in toto? 32. After having carefully scrutinised the FIR and dying declaration, we no proceed to consider the testimony of eye witnesses, the question that emerges at this juncture is as to whether after suspecting the FIR and rejecting the dying declaration can be testimony of injured eye witnesses be discarded in toto? As stated earlier, the evidence of the eye witnesses is consistent in regard to inflicting injuries by the appellants Ram Gopal and Sharwan. All the eye witnesses categorically stated that Ram Gopal and Sharwan gave sword blow on the person of the deceased Chauthmal. They also inflicted sharp edged injuries to Birdhi Bai (P.W. 1). Kalyani Bai (P.W. 7) vide Ex.P. 14 sustained three injuries whereas Birdhi Bai (P.W. 1) vide Ex.P. 13 sustained as many as six injuries out of which three incised wounds were on fronts parietal region of skull. No doubt these witnesses are the relatives of the deceased but their presence at the time of occurrence can not be doubted. After having closely scanned the statements of Birdhi Bai and Kalyani Bai we are satisfied that they were stating the truth in so far as participation of appellants Ram Gopal and Sharwan in the crime is concerned. Presence of witnesses Jodh Raj (P.W. 3) Badrilal (P.W. 2) Raghunathi Bai (P.W. 5) Kali Bai (P.W. 6) Anandhi Bai (P.W. 9) Saucer Bai (P.W. 10) and Ram Kalayan (P.W. 11) at the place of occurrence appears to be doubtful. There are material contradictions in their statements and their testimony can not be relied upon. As already stated we have legitimate basis for not ruling out the possibility of over implication of the accused persons but the entire fabric of prosecution case will not be collapsed because of this. Witnesses Birdhi Bai and Kalyani Bai did not implicate other seventeen appellants in sharing common intention of having committed murder of Chauthmal and the prosecution has failed to prove guilt against other seventeen appellants beyond reasonable doubt. We are fully satisfied that the prosecution has established its case against the appellants Ram Gopal and Sharwan beyond reasonable doubt. The defence version that appellant Ram Gopal had a fracture and was not in a position to move cannot be accepted. We are fully satisfied that the prosecution has established its case against the appellants Ram Gopal and Sharwan beyond reasonable doubt. The defence version that appellant Ram Gopal had a fracture and was not in a position to move cannot be accepted. Presence of the appellant Ram Gopal is established from the statements of the injured eye witnesses and at the time of his arrest he did not have any kind of injury as is evident from his arrest memo. As regards the conviction of other seventeen appellants is concerned there is no material to come to the conclusion that they participated in the commission of crime. Their over implication in the crime is apparent and the prosecution has failed to establish the charges under sections 302/149, 307 and 307/149 IPC against them beyond reasonable doubt. All the seventeen appellants Hem Raj, Tola Ram, Devi Lal, Ram Swaroop, Ram Kumar, Narayan, Ganga Ram, Ramlal, Raju Chauthmal, Gobrilal, Babulal son of Dhanna Lal, Babu lal son of Kedar Lal Satya Narain, Mathura Lal, Narottam Lal and Balram are entitled to benefit of doubt. 33. Mr. A.K. Gupta, learned counsel for the appellants placed reliance on Subran v. State of Kerala (1993) 3 SCC 32 and contended that after framing charge for offence under section 302/149 IPC the accused cannot be convicted for substantive offence under section 302 simpliciter. But it is equally well settled that common intention can be inferred from the circumstances. In the case on hand it is established beyond reasonable doubt from the record that appellants Ram Gopal and Sharwan participated in the incident and they shared common intention in inflicting injuries to the deceased. In view of this they can be convicted under section 302 read with section 34 IPC. In Gupteshwar Nath v. State of Bihar ( AIR 1986 SC 1649 ) their Lordships of the Supreme Court indicated thus - (Para 9) "It is no doubt true that in a case like this, if the facts are not sufficient for a conviction with the aid of section 149, the conviction can be maintained with the aid of section 34 and therefore the case of the appellants can be considered in that light as well." 34. As a result of the above discussion we allow the appeals of the appellants (1) Hem Raj (2) Tola Ram (3) Devi Lal (4) Ram Swaroop (5) Ram Kumar (6) Narain (7) Ganga Ram (8) Ram Lal (9) Raju (10) Chauthmal (11) Gobri (12) Babulal son of Dhanna Lal (13) Babulal son of Kedar Lal (14) Satya Narain (15) Mathura Lal (16) Narottam and (17) Bal Ram and set aside, the impugned judgment in so far it relates to them. We acquit all the aforequoted seventeen appellants of the offences under sections 302/149, 307 and 307/149 IPC. All the afore quoted appellants are on bail. The need no surrender, their bail bonds stand discharged.The appeal preferred by the appellants Ram Gopal and Sharwan stands dismissed. Both of them stand convicted under sections 302/34 IPC and sentenced to undergo imprisonment for life and fine of Rs. 100/- in default to further undergo one month rigorous imprisonment. Their conviction and sentence under section 307 IPC maintained. Sentences shall run concurrently. Appellant Ram Gopal is in jail whereas appellant Sharwan is on bail. He shall surrender forthwith to custody to serve out the sentence.Their appeals are allowed. *******