VISHNU SAHAI, J. Through this appeal, the appellants challenge the judgment and order, dated 6. 5. 1980 passed by the IVth Addl. Sessions Judge, Sitapur in Sessions Trial No. 102 of 1977, whereby they have been convicted and sentenced in the manner stated hereinafter: GIRDHAR alias GIRDHAR GOPAl Under Sections 302, 148 and 307 read with section 149 I. P. C. to imprisonment for life under the first count to one years R. I. under the second count and to five years R. I. under the third count. RAM BHAJAn Under section 302 I. P. C. read with sections 34 I. P. C. , 148 I. P. C. and 307 I. P. C. read with section 149 I. P. C. to imprisonment for life under the first count, to one years R. I. under the second count and to five years R. I. under the third count. MUNNA LAL alias MUNNA, THAKUR PRASAD AND GANGA RAm Under section 302 I. P. C. read with sections 34,147 I. P. C. and 307 I. P. C. read with section 149 I. P. C. to imprisonment for life under the first count, to six months R. I. under the second count and to five years R. I. under the third count. Sentences of the appellants were ordered to run concurrently. 2. Shortly stated, the prosecution case as contained in the F. I. R. and in the statement of the informant Ram Swaroop, as recorded the Trial Court runs as under: The informant Ram Swaroop, P. W. 1, Brij Bhushan P. W. 3, their real brother the deceased Chandra Bhal, Surendra Bahadur P. W. 4 and the five appellants, Ram Bhajan, Manna Lal alias Munna, Thakur Prasad, Ganga Ram and Girdhar alias Girdhar Gopal at the time of incident were residing in village Jigniya in district Sitapur. On 2. 8. 1974 at about 6 P. M. , appellant Girdhar and Chottey, sons of the appellant Ram Bhajan were cutting sugarcane and Arhar in the field of deceased Chandra Bhal. Chandra Bhal caught hold and brought them to the house of Ram Bhajan. Chandra Bhal complained to Ram Bhajan that Girdhar and Chottey had cut their sugarcane and Arhar. Ram Bhajan told Chandra Bhal that the whole world did this and why he had come to complain. On this an altercation took place between Chandra Bhal and Ram Bhajan. Chandra Bhal caught hold and brought them to the house of Ram Bhajan. Chandra Bhal complained to Ram Bhajan that Girdhar and Chottey had cut their sugarcane and Arhar. Ram Bhajan told Chandra Bhal that the whole world did this and why he had come to complain. On this an altercation took place between Chandra Bhal and Ram Bhajan. Immediately, Ram Bhajan with a kanta, his father Thakur Prasad, his brother Munna Lal and his uncle Ganga Ram with lathies, started assaulting Chandra Bhal in the meantime, Girdhar brought a bhala. Thereafter, all of them assaulted Chandra Bhal. Chandra Bhal used a lathi in his self-defence. In the meantime the informant, his brother Brij Bhushan armed with lathies, Surendra Bahadur and some others came. Thereafter the aforesaid five persons started assaulting Ram Swaroop and Brij Bhushan with lathies, Kanta and bhala. Thereafter, they ran away. At night on account of fear. Ram Swaroop did not proceed to lodge his F. I. R. Next morning at 4 a. m. he proceeded to Police Station Pisawan, where he lodged his F. I. R. at about 7. 30 a. m. 3. The evidence of Head Constable Shatrughan Singh P. W. 5 shows that on 3. 8. 1974 at 7. 30 A. M. Ram Swaroop along with Brij Bhushan and Chandra Bhal came to Police station Pisawan to lodge his F. I. R. Ext. Ka-l. He recorded it and on its basis he registered a case under section 307 I. P. C. His evidence shows that thereafter, he sent the Chandra Bhal, Ram Swaroop and Brij Bhushan for medical examination. 4. The evidence of informant Ram Swaroop shows that after lodging his F. I. R. the police sent him, Chandra Bhal and Brij Bhushan to Primary Health Centre Pisawan for medical examination but since no doctor was available there, they were sent to Maholi Hospital and on way to Maholi Hospital, Chandra Bhal succumbed to his injuries. Thereafter, he and Brij Bhushan brought the corpse of Chandra Bhal to Police Station and left it there and then came to Maholi Hospital where they were medically examined. 5. The evidence of Dr. DP. Singh, P. W. 8 shows that on 3. 8. 1974 at 12. 45 P. M. and 1 P. M. respectively, while he was posted at Primary Health Centre Maholi, he medically examined Ram Swaroop and Brij Bhal. 5. The evidence of Dr. DP. Singh, P. W. 8 shows that on 3. 8. 1974 at 12. 45 P. M. and 1 P. M. respectively, while he was posted at Primary Health Centre Maholi, he medically examined Ram Swaroop and Brij Bhal. On the person of Ram Swaroop, Dr. D. P. Singh found five incised wounds. It is pertinent to mention that two of them were situated in the region of head and three on different parts of the left hand in the opinion of Dr. Singh, injury No. 2, which was an incised wound 3" x 1/4" on the base of right ear, was grievous in nature (Cartilage having been cut) and remaining injuries were simple. He also opined that the said injuries could be caused by kanta. On the person of Brij Bhushan, Dr. Singh found two lacerated wounds, one round wound, two contusions and one abrasion. The lacerated wounds were situated on the head; one of the contusions was situated on stomach; one of the contusions was located infront of left arm, and the other two injuries were situated on the right leg. In the opinion of Dr. Singh, the said injuries were attributable to a blunt weapon. 6. The autopsy on the corpse of Chandra Bhal was conducted on 4. 8. 1974 at 5. 30 P. M. by Dr. Gopalji Ojha P. W. 2, who found on it, one lacerated wound, one penetrating wound, one contusion, three abrasions and one abrasion which he has described as three abrasions. The lacerated wound was-located on head, the penetrating wound, which was ante-mortem injury No. 2 of the dimensions of 1/2" x 1/4" x brain deep was situated on right temporal region 3/4" above and 1/4" away from right ear and the abrasions were located on non-vital parts of body. On internal examination. Dr. Ojha found the temporal bone to be penetrated beneath the penetrating injury. In his opinion, the penetrating wound was sufficient in the ordinary course of nature to cause death and the lacerated wound was also responsible for death. In the opinion of Dr. Ojha, the penetrating wound was caused by a bhala and the remaining injuries were attributable to a blunt weapon. 7. It is significant to point out that a counter F. I. R. , in respect of the same incident was lodged by Ram Bhajan on 3. 8. 1974 at 10. In the opinion of Dr. Ojha, the penetrating wound was caused by a bhala and the remaining injuries were attributable to a blunt weapon. 7. It is significant to point out that a counter F. I. R. , in respect of the same incident was lodged by Ram Bhajan on 3. 8. 1974 at 10. 55 A. M. at Police Station Pisawan and on its basis, a case under section 147/148/324 I. P. C. was registered against Chandra Bhal, Ram Swaroop, Brij Bhushan and three others by Head Constable Shatruhan Singh P. W. 5. After recording Ram Swaroops F. I. R. , Shatruhan Singh sent Ram Swaroop, who was accompanied by Munna Lal, for medcal examination. 8. The injuries of Munna Lal and Ram Bhajan were medically examined by Dr. A. A. Khan, P. W. 6 on 3. 8. 1974 at 8. 10 P. M. and 8. 15 P. M. respectively at District Hospital, Sitapur. On the person of Munna Lal, Dr. Khan found two lacerated wounds (situated on head) and on the person of Brij Bhushan he found two lacerated wounds (situated on head), one circular wound, one abrasion and two bruises and the said injuries were simple in nature and attributable to a blunt weapon. 9. The case was investigated in the usual manner by Inspector Rana Pratap Singh P. W. 7 and on completion of the investigation, the appellants were charge-sheeted. 10. The case was committed to the Court of Sessions where the appellants were charged on a number of counts. They pleaded not guilty to the charges and claimed to be tried. During trial, the prosecution produced nine witnesses. Three of them namely, Ram Swaroop, Brij Bhushan and Surendra Bahadur, P. W 1, P. W. 3 and P. W. 4 respectively were examined as-eye-witnesses. The suggestion given in cross-examination to the said eye-witnesses was that the deceased Chandra Bhal was grazing buffalo near the school and on his cries. Ram Swaroop, Brij Bhushan and others reached. They chased Ram Bhajan who was there and reached the door of Ram Bhajan where Chandra Bhal assaulted Ram Bhajan with lathi and Munna Lal who rushed to the rescue of Ram Bhajan was also assaulted by them with lathies. Ram Bhajan picked up a kanta, which was lying at his door and assaulted them. It is pertinent to mention that the eye-witnesses denied the said suggestion. Ram Bhajan picked up a kanta, which was lying at his door and assaulted them. It is pertinent to mention that the eye-witnesses denied the said suggestion. The learned Trial Judge rejected the defence of the appellants, believed the ocular account adduced by the prosecution, and convicted and sentenced the appellants in the manner stated in paragraph 1. Hence, this appeal. 11. We have heard learned Counsel for the parties and perused the entire material on record and are of the judgment that this appeal deserves to be partly allowed. 12. The area in controversy in this appeal lies in a narrow compass because the date, time and place of incident stand admitted. It is common ground between the prosecution and the defence that the incident took place on 2. 8. 1974 at 6 P. M. at the house of the appellant Ram Bhajan in village Jigniya within the limits Police Station Pisawan, District Sitapur. The bone of contention between them is whether it took place in the manner disposed to by three eye-witnesses of the incident, namely, Ram Swaroop, Brij Bhushan and Surendra Bahadur, P. W. 1, P. W. 3 and P. W. 4 respectively or in that suggested to the eyewitnesses during their cross-examination. Having reflected over the said issue, we are of the view that the prosecution version of the incident is credible. The prosecution case broadly is that when Chandra Bhal along with appellant Girdhar and Chottey, sons of Ram Bhajan came to demonstrate at the house of Ram Bhajan, Ram Bhajan with a kanta, his brother Munna Lal with lathi, his father, Thakur Prasad and his uncle Ganga Ram with lathies started assaulting him. Hearing his cries, Ram Swaroop, Brij Bhushan came and in the meantime, appellant Girdhar with a bhala came and Girdhar inflicted a bhala blow on the head of Chandra Bhal and the five appellants assaulted Ram Swaroop and Brij Bhushan with kanta, bhala and lathies. 13. In earlier part of our judgment, we have set out the injuries suffered by Chandra Bhal, Ram Swaroop and Brij Bhushan. Their perusal makes it manifest that they corroborate the version unfolded by the prosecution witnesses. 13. In earlier part of our judgment, we have set out the injuries suffered by Chandra Bhal, Ram Swaroop and Brij Bhushan. Their perusal makes it manifest that they corroborate the version unfolded by the prosecution witnesses. A perusal of the injuries suffered by Chandra Bhal shows that he suffered injuries attributable to bhala and lathies, those of Ram Swaroop shows that he sustained injuries attributable to kanta (five incised wounds) and those of Brij Bhushan shows that he sustained injuries attributable to a blunt weapon. 14. It is significant to point out that right from the F. I. R. , the prosecution has explained the injuries suffered by the appellants Ram Bhajan and Munna Lal. In the F. I. R. it has been clearly mentioned that the deceased Chandra Bhal, Ram Swaroop and Brij Bhushan assaulted the other side with lathies and this has also been stated in ocular account furnished by the three eyewitnesses. 15. We make no bones in observing that the defence version of the incident as suggested to the eye-witnesses to which we have referred to in para 10 does not appear to be credible for two broad reasons: Firstly, it fails to explain the penetrating and blunt weapon injuries suffered by the deceased Chandra Bhal and the blunt weapon injuries sustained by Brij Bhushan. Secondly, unlike prosecution version of the incident, there was no immediate reason for Chandra Bhal and others to assault Ram Bhajan and Munna Lal. Being conscious, to the infirmities in the defence version of the incident, as suggested to the eye-witnesses, appellant Ram Bhajan in his statement under section 313 Cr. P. C. sought to make amends. In reply to question No. 21, which was "kya Apko Kuch Aur Kahna Hai, he replied that Chandra Bhal had mortgaged six bighas of his land to him for Rs. 600/- and two bighas for Rs. 200/ -. In two bigha piece of land, he had sown sugarcane. His servant Komal, who had gone to weed grass in the said land came to him and informed him that Chandra Bhal was not permitting him to weed it. Consequently, he went to Chandra Bhal, who was grazing buffalo near the school. 600/- and two bighas for Rs. 200/ -. In two bigha piece of land, he had sown sugarcane. His servant Komal, who had gone to weed grass in the said land came to him and informed him that Chandra Bhal was not permitting him to weed it. Consequently, he went to Chandra Bhal, who was grazing buffalo near the school. He told him that he had mortgaged his land and yet was not permitting his servant to weed grass and asked him to return his money and on that Chandra Bhal raised cries, hearing which Ram Swaroop and others came. He (Ram Bhajan) ran to his house. They surrounded him at the door of his house. Chandra Bhal assaulted him with lathi. His father, Thakur Prasad and brother Munna Lal with lathies came to save him. Chandra Bhal also assaulted them. His father (Thakur Prasad) and his brother used lathies in their self-defence and he picked up a kanta, which was lying at the door of his house and assaulted Ram Swaroop with it. In the meantime. Ram Swaroop attempted to assault him with a Ballam but he avoided the blow, which instead struck Chandra Bhal. We are not inclined to accept his answer because it has been doctored to explain all the injuries sustained by Chandra Bhal, Ram Swaroop and Brij Bhushan. 16. For the said reasons, in our view, the prosecution proved the involvement of the appellants in the crime beyond reasonable doubt. 17. The question is whether the learned Trial Judge acted correctly in convicting the appellants in the manner in which he did. Our answer to it is in negative. We have seen that the conviction of the appellants on all counts is based on ocular account furnished by Ram Swaroop, Brij Bhushan and Surendra Bahadur, P. Ws. 1, 3 and 4 respectively. In paragraph 2, we have set out the prosecution story on the basis of recitals contained in the F. I. R. lodged by Ram Swaroop and in the ocular account furnished by him. We make no bones in observing that if the said recitals are accepted, then all the five appellants would be liable for the death of the deceased with the aid of section 149 I. P. C. because it is manifest from it that they assaulted the deceased. 18. We make no bones in observing that if the said recitals are accepted, then all the five appellants would be liable for the death of the deceased with the aid of section 149 I. P. C. because it is manifest from it that they assaulted the deceased. 18. However, in our view, it would not be safe to accept the recitals in Ram Swaroops F. I. R. and those in this statement in view of the evidence of Brij Bhushan and Surendra Bahadur. 19. The evidence of Brij Bhushan shows that on the date and time of the incident, he and his brother Ram Swaroop were at their house and on hearing the cries of Chandra Bhal dauro Mar Daltey Hai, they with lathies rushed to the house of Chandra Bhal. They saw Chandra Bhal being belaboured by Ram Bhajan with a kanta and Munna Lal, Thakur Prasad and Ganga Ram by lathies. His evidence shows that in the meantime, Girdhar came there with a bhala and at that juncture, accused Girdhar assaulted Chandra Bhal with a bhala and all of them assaulted him and Ram Swaroop and he also used lathies in self-defence. 20. The evidence of Surendra Bahadur shows that on the date and time of the incident, he was sitting at the door of his house and saw that Ram Bhajan armed with kanta, and Ganga Ram, Munna Lal and Thakur Prasad armed with lathies were chasing Chandra Bhal and thereafter assaulted him in Galiyara to the east of the house of Bhagwan Din. His evidence also shows that thereafter, Ram Swaroop and Brij Bhushan armed with lathies and Girdhar armed with a Bhala came there and Girdhar assaulted Chandra Bhal with a bhala and thereafter all of them assaulted Ram Swaroop and Brij Bhushan and Ram Swaroop and Brij Bhushan assaulted with lathies in their self-defence. 21. We have seen that the Trial Judge convicted Ram Bhajan, Munna Lal, Thakur Prasad and Ganga Ram for the offence punishable under section 302/34 I. P. C. In our judgment, on the face of the evidence furnished by Brij Bhushan and Surendra Bahadur, it cannot be said that they committed murder of Chandra Bhal in furtherance of common intention of Girdhar. 22. 22. We have seen that the evidence of Brij Bhushan and Surendra Bahadur shows that Girdhar was not initially present when Chandra Bhal was assaulted by appellants Ram Bhajan, Munna Lal, Thakur Prasad and Ganga Ram. We have also seen that their evidence shows that appellant Girdhar armed with a Bhalla came subsequently; about same time when Ram Swaroop and Brij Bhushan came. We have also seen that their evidence shows that after Girdhar had inflicted a solitary Bhalla blowon the head of the deceased Chandra Bhal, the aforesaid four appellants did not assault Chandra Bhal. We have seen that the evidence of the said witnesses shows that after Girdhar had assaulted-Chandra Bhal, the aforesaid four appellants along with him assaulted Ram Swaroop and Brij Bhushan. In such a factual matrix, in our view, it cannot be said that the murder of deceased Chandra Bhal was committed by Ram Bhajan, Munna Lal, Thakur Prasad and Ganga Ram in furtherance of common intention of appellant Girdhar. In our judgment, in respect of assault on Chandra Bhal, the said appellants would only be liable for the offence punishable under section 324 read with section 34 I. P. C. because excepting the bhala injury suffered by Chandra Bhal, the remaining injuries on his person were simple in nature. 23. The question is whether the learned Trial Judge was justified in convicting Girdhar for the offence punishable under section 302 I. P. C. It is true that the bhala injury was inflicted by him on the head of Chandra Bhal and the said injury penetrated the temporal bone. It is also true that autopsy Surgeon, Dr. Gopalji Ojha stated that the said injury was sufficient in the ordinary course of nature to cause death but, in our view in the factual matrix in which it was inflicted the act of Girdhar would not fall within the four corners of clause third of section 300 I. P. C. as was sought to be urged by the A. P. P. but instead would fall in the ambit of clause third of section 299 I. P. C. We feel that on the facts of this case it would be safe to infer that when Girdhar inflicted the solitary bhala blow on the head of Chandra Bhal, he committed an act with the knowledge that Chandra Bhals death could be caused in terms of the said clause. 24. 24. A perusal of the statement of Girdhar recorded under section 313 Cr. P. C. (recorded on 7. 4. 1980) makes it manifest that on the date of the incident i. e. on 3. 8. 1974, he was aged about 16-1/2 years (Supreme Court in the case of Raisul v. State, AIR 1977 SC 1822 . has laid down that the estimate of age given in the statement under section 313 Cr. P. C. should be accepted as correct ). The evidence of the eye-witnesses shows that when Girdhar (aged about 16-1/2 years) came armed, with bhala he saw deceased Chandra Bhal, Ram Swaroop, Brij Bhushan assaulting his father Ram Bhajan and his uncle Munna Lal with lathies. It was in such a situation he inflicted a solitary bhala blow on the person of deceased and consequently, in our view, it cannot be said as was urged by the A. P. P. that he had intention to inflict the injury, which he inflicted on the person of deceased in terms of clause (iii) of section 300 I. P. C. In this view of the matter, clause third of section 300 I. P. C. would not have any application. 25. In this connection we would like to advert to two decisions of Supreme Court, namely, those rendered in the case of Kulwant Rai v. State of Punjab, AIR1982sc126. and Jawahar Lal and another v. State of Punjab, 1983 (20) ACC 16 (Sum) = AIR 1983 SC 284 . In Kulwant Rais case (supra), there was no prior enmity between the deceased and accused. The accused gave a dagger blow that landed in epigastrium area. The medical evidence was that the injury was sufficient in the ordinary course of nature to cause death. The Supreme Court repelled the contention that the act of the accused fell within clause (iii) of section 300 I. P. C. and took the view that in the factual matrix in which the said injury was inflicted, it could not be said that the accused intended to inflict it. Consequently, it set aside the conviction of the accused for the offence punishable under section 302 I. P. C. and instead convicted and sentenced him to 5 years R. I. for the offence punishable under section 304 (ii) I. P. C. 26. Consequently, it set aside the conviction of the accused for the offence punishable under section 302 I. P. C. and instead convicted and sentenced him to 5 years R. I. for the offence punishable under section 304 (ii) I. P. C. 26. In Jawahar Lals case (supra) on account of a trivial quarrel, the accused inflicted a dagger blow on the left side of chest of the deceased and the said injury was sufficient in the ordinary course of nature to cause death. The Supreme Court took the view that in the circumstances in which the blow was inflicted, it cannot be said that the accused intended to inflict it in terms of clause (iii) of section 300 I. P. C. Consequently, the Supreme Court acquitted the accused for the offence punishable under section 302 I. P. C. and instead convicted him for the offence punishable under section 304, Part II I. P. C. and sentenced him to undergo five years R. I. 27. We feel that the learned Trial Judge acted correctly in convicting the appellants for the offence punishable under section 307/149 I. P. C. Not only the evidence of Ram Swaroop but also that of Brij Bhushan and Surendra Bahadur shows that all the five appellants launched a simultaneous assault on Ram Swaroop and Brij Bhushan and since injury No. 2 suffered by Ram Swaroop was an incised wound at the root of left ear and the said injury was grievous in nature and apart from it, another incised wound was suffered by him on his head, the learned Trial Judge was justified in convicting all the appellants for the offence under section 307 I. P. C. read with section 149 I. P. C. 28. We also feel that since the appellants Ram Bhajan and Girdhar were armed with deadly weapons, namely, kanta and spear respectively, the learned Trial Judge was justified in convicting them for the offence under section 148 I. P. C. and the remaining three appellants, who were armed with lathies, for the offence punishable under section 147 I. P. C. 29. The question which remains is that of sentence. The question which remains is that of sentence. So far as Ram Bhajan, Munna Lal, Thakur Prasad and Ganga Ram are concerned, in our view, a sentence of two years R. I. for the offence punishable under section 324 read with section 34 I. P. C. (in relation to the assault on the deceased) would meet ends of justice. So far as appellant Girdhar alias Girdhar Gopal is concerned, considering over all circumstances, in our view, a sentence of seven years R. I. for the offence punishable under section 304, Part II of I. P. C. would meet the ends of justice. So far as the sentence for the offences under sections 147 I. P. C. and 148 I. P. C, is concerned, in our view, the sentence of six months R. I. on the former count and that of one year R. I. on the latter, which has been imposed on them by the Trial Court, cannot be castigated as being excessive. 30. So far as the sentence under section 307 I. P. C. read with section 149 I. P. C. is concerned, in our judgment, since the incident took place about 28 years ago and there is nothing to indicate that the appellants have any adverse criminal antecedents, the sentence of five years R. I. awarded by the Trial Court to each of the appellants is excessive and a sentence of three years R. I. thereunder would meet foe ends of justice. 31. In the result, this appeal is partly allowed. We acquit appellants Ram Bhajan, Munna Lal, Thakur Prasad and Ganga Ram for the offence punishable under section 302 I. P. C. read with section 34 I. P. C. and set aside their convictions and sentences thereunder. Instead we convict them for the offence punishable under section 324 I. P. C. read with section 34 I. P. C. and sentence them to undergo two years R. I. 32. We also acquit Girdhar alias Girdhar Gopal for the offence punishable under section 302 I. P. C. and instead convict him for that punishable under section 304, Part II, I. P. C. and sentence him to undergo seven years R. I. 33. We also acquit Girdhar alias Girdhar Gopal for the offence punishable under section 302 I. P. C. and instead convict him for that punishable under section 304, Part II, I. P. C. and sentence him to undergo seven years R. I. 33. We confirm, the conviction of all the appellants for the offence punishable under section 307 I. P. C. read with section 149 I. P. C. but reduce their sentence from five years R. I. to three years R. I. 34. We also confirm the convictions and sentences of appellants Munna Lal, Thakur Prasad and Ganga Ram for the offence punishable under section 147 I. P. C. and of Ram Bhajan and Girdhar alias Girdhar Gopal for the offence punishable under section 148 I. P. C. 35. We direct that all the sentences of all the appellants shall run concurrently. 36. The appellants are on bail and shall be taken into custody forthwith to serve out their sentence. Appeal Partly Allowed. .