VISHNU SAHAI, J. This appeal has been preferred by Gaya Prasad, Chhotey Lal, Babu Ram and Ram Autar against the judgment and order dated 31-3-1980, passed by IV Addl. Sessions Judge, Sitapur in Sessions Trial No. 132 of 1978, whereby they have been convicted and sentenced in the manner stated herein after: Chhotey Lal: - (i) Under Section 148 IPC to one years R. I. ; (ii) Under Section 324 IPC to one years R. I. ; (iii) Under Section 323/149 IPC to six months R. I. ; and (iv) Under Section 302/149 IPC to imprisonment for life. Gaya Prasad, Babu Ram and Ram Autar: - (i) Under Section 147 IPC to six months R. I. ; (ii) Under Section 324/149 IPC to one years R. I. ; (iii) Under Section 323 IPC to six months R. I. ; and (iv) Under Section 302/149 IPC to imprisonment for life. Sentences of the appellants were directed to run concurrently. It is pertinent to mention that during the pendency of the appeal, appellants Gaya Prasad, Chhotey Lal and Ram Autar died and a Division Bench of this Court comprising of Dev Kant Trivedi and Kamal Kishore, JJ. vide order dated 23-3-1999 ordered their appeal to abate. 2. Shortly stated the prosecution case runs as under: - Informant Puttu Lal P. W. 1 is the son of Parmeshwar Deen and the real nephew of Gaya Prasad, Chhotey Lal and one Ram Prasad, who died prior to the commencement of the trial. Appellant Ram Autar is the son of Ram Prasad. Appellant Babu Ram is the real brother of the informant. Since Chhotey Lal was issueless, from 15 days prior to the incident, he had started keeping Babu Ram as his son and the latter began living with him. The house of Chhotey Lal was in front of the house of the informant. Other appellants and deceased-accused Ram Prasad used to live in Chhotey Lals house. Deceased- accused Ram Prasad about 20 years before the incident, had kept a woman with him, who had two issues from her husband; one being appellant Ram Autar and the other one Shyam Lal. About three months prior to the incident, deceased- accused Ram Prasad had performed Janev ceremony (thread ceremony) of Ram Autar and Shyam Lal. Since informant and his family member did not attend it, Ram Prasad started nursing ill-will against them. About three months prior to the incident, deceased- accused Ram Prasad had performed Janev ceremony (thread ceremony) of Ram Autar and Shyam Lal. Since informant and his family member did not attend it, Ram Prasad started nursing ill-will against them. A day prior to the incident, informant told Chhotey Lal that it was wrong on his to have kept Babu Ram. On this an exchange of abuses took place between the informant and Chhotey Lal. It appears that the same day Chhotey Lal asked Babu Ram to demand a share in the land and the house. Babu Ram asked his and informants father Prameshwar Deen for the same. The latter told him that he would not get it. On this Chhotey Lal told Parmeshwar Deen that Babu Ram was also his son. Thereupon Parmeshwar Deen replied that he had to settle the marriage of other children and was not in a position to give share to Babu Ram. 2-A. On account of the aforesaid enmity, on 23-6-1973 at about 6 a. m. when the informant Puttu Lal was collecting cow dung in front of his house, deceased- accused Ram Prasad and appellant Chhotey Lal armed with ballam, appellants Gaya Prasad, Babu Ram and Ram Autar armed with lathis came and started assaulting him with their weapons. He raised cries, hearing which his father Parmeshwar Deen, his mother Ram Piyari, co- villagers Ram Kumar, Sunder Lal, Bechey Lal, Barati and Chaudhari came. Deceased- accused Ram Prasad and the appellants thereupon started assaulting Parmeshwar Deen and when Ram Piyari ran to rescue him they also assaulted her. As a consequence of the assault Prameshwar Deen was rendered unconscious. Then deceased- accused Ram Prasad and the appellants ran away. Thereafter the informant arranged for a bullock cart and the same, along with Parmeshwar Deen and Ram Piyari proceeded to the police station Sandhana, District Sitapur, which he reached at about 10 a. m. and where he lodged his FIR. 3. The evidence of S. I. Dwarika Prasad P. W. 9 shows thus: - On 23-6-1973 at about 10. 15 a. m. while he was posted as Head Moharir at police station Sandhana, the informant Puttu Lal along with the other victims came to the police station and lodged his FIR Ext. 3. The evidence of S. I. Dwarika Prasad P. W. 9 shows thus: - On 23-6-1973 at about 10. 15 a. m. while he was posted as Head Moharir at police station Sandhana, the informant Puttu Lal along with the other victims came to the police station and lodged his FIR Ext. Ka-1, on the basis of which he registered a case under Section 307 IPC vide G. D. Entry No. 14; which offence was subsequently converted to one under Section 302 IPC, on receipt of information of the death of Parmeshwar Deen. 4. The evidence of S. I. ; Bhagmal Singh P. W. 10 shows: - FIR was lodged in his presence and thereafter he took over investigation. He immediately performed the inquest (it appears that immediately after he had commenced the investigation, Prameshwar Deen died) and sent the corpse for autopsy. He thereafter recorded the statements of Puttu Lal, Ram Piyari and other witnesses. He then left for the place of incident, where he prepared the site plan Ext. Ka-12. He collected therefrom plain and blood stained earth under separate recovery memos. He did some other investigation, but since in our view, a reference to it is not necessary for the disposal of the appeal, we are not adverting to it. On 4-7-1973 he was transferred. 5. The evidence of S. I. Shanti Swaroop P. W. 7 shows that he took over investigation from S. I. Bhagmal Singh and after completing the same on 29-5-1974 submitted charge-sheet against the appellants and the deceased-accused Ram Prasad. 6. Going backwards, the injuries of informant Puttu Lal and Ram Piyari were medically examined on 23- 6-1973 at 9 p. m. and 9. 15 p. m. respectively by Dr. R. K. Seth P. W. 8. On the person of Puttu Lal Dr. Seth found one lacerated wound, one punctured wound, three contusions and one swelling and on that of Ram Piyari one lacerated wound, two contusions and complaint of pain on the right hand. In the opinion of Dr. Seth, the punctured wound suffered by Puttu Lal was attributable to a object like Ballam and remaining injuries of both the victims to a blunt object like lathi. Dr. Seth also opined that the injuries of the victims could have been caused on 23-6-1973 at 6 a. m. 7. In the opinion of Dr. Seth, the punctured wound suffered by Puttu Lal was attributable to a object like Ballam and remaining injuries of both the victims to a blunt object like lathi. Dr. Seth also opined that the injuries of the victims could have been caused on 23-6-1973 at 6 a. m. 7. The autopsy on the corpse of the deceased Parmeshwar Deen was conducted on 24-6-1973, at 4. 30 p. m. by Dr. I. B. Singh P. W. 6, who found on it the following ante-mortem injuries: (1) Punctured wound 1/4 x 1/4 x bone deep on the outer side of right forearm 3/4" above the wrist. (2) Lacerated wound 1" x 3/4" x bone deep on the right side of forehead, 1/4" above right eye brow. (3) Lacerated wound 1-1/2" x 1" bone deep on the left side of head 3-1/2" above the left eye brow. (4) Lacerated wound 1" x 1/2" x bone deep on the head 3/4" behind Injury No. 3. (5) Contusion 2" x 1" on the right temple in front of right ear. On internal examination Dr. Singh found fracture of left parietal and temporal bones. In the opinion of Dr. Singh deceased died on account of coma resulting from head injury, which was sufficient to cause his death. 8. The case was committed to the Court of Sessions in usual manner. It appears that prior to the framing of charges accused Ram Prasad died. Consequently charges were only framed against the appellants and thereafter, they were put for trial. During trial in all the prosecution examined ten witnesses. Five of them namely Puttu Lal, Sunder Lal, Ram Kumar, Bechey Lal and Choudhary P. Ws. 1, 2, 3, 4 and 5 respectively were examined as eye- witnesses. In defence no witness was examined. The learned trial Judge found the prosecution case worthy of belief and convicted and sentenced the appellants in the manner stated in para-1. Hence this appeal. 9. We have heard learned Counsel for the parties and perused the entire record. As mentioned in Para-1 since appellants Gaya Prasad, Chhotey Lal and Ram Autar died during pendency of the appeal, a Division Bench of this Court vide order dated 23-3-1999 directed, their appeal to abate. Hence, we have to only decide the appeal of Babu Ram on merits. 10. As mentioned in Para-1 since appellants Gaya Prasad, Chhotey Lal and Ram Autar died during pendency of the appeal, a Division Bench of this Court vide order dated 23-3-1999 directed, their appeal to abate. Hence, we have to only decide the appeal of Babu Ram on merits. 10. Learned Counsel for the appellants true to his customary fairness only restricted his challenge to the question of offences made out against appellant Babu Ram and the quantum of sentence to be awarded to him. 11. In our view it was perfectly fair for him to have done so because so far the involvement of the appellants in the incident is concerned, even if the evidence of P. W. 5 Chaudhari, (the hostile witness) is eliminated, there remains the credible ocular account furnished by informant Puttu Lal, Sunder Lal, Ram Kumar and Bechey Lal to establish it. It is significant to point out that Puttu Lal is an injured witness of the incident and the real brother of appellant Babu Ram. In para-2 we have set out the prosecution story on the basis of the recitals contained in the examination-in-chief of Puttu Lal and do no want to burden our judgment by reiterating all the details. he deposed that on account of enmity (we have mentioned it in para-2), on the date of the incident, at about 6 a. m. deceased-accused Ram prasad and appellant Chhotey Lal armed with ballam, appellants Gaya Prasad, Babu Ram and Ram Autar armed with lathi came and started belabouring him with their weapons and when he raised cries, hearing which his father Parmeshwar Deen and mother Ram Piyari came, all of them also assaulted them with their weapons. We have earlier set out the injuries suffered by him, the deceased Parmeshwar Deen, and Ram Piyari and their perusal shows that they were of dual nature; some attributable to ballam and some to lathi. It is pertinent to mention that Dr. Seth, who medically examined Puttu Lal and Ram Piyari and Dr. I. B. Singh, who performed the autopsy on the corpse of Parmeshwar Deen, stated that the punctured wounds could be caused by ballam and the lacerated and contused wounds by lathis. 12. For the aforesaid reasons we find the evidence of Puttu Lal to be credit-worthy. 13. Seth, who medically examined Puttu Lal and Ram Piyari and Dr. I. B. Singh, who performed the autopsy on the corpse of Parmeshwar Deen, stated that the punctured wounds could be caused by ballam and the lacerated and contused wounds by lathis. 12. For the aforesaid reasons we find the evidence of Puttu Lal to be credit-worthy. 13. We may mention that the evidence of Sunder Lal, Ram Kumar and Bechey Lal is on the same lines as of Puttu Lal and since brevity and not prolixity is the order of the day, we do not want to burden our judgment by mentioning all the details. All of them are neighbours of Puttu Lal and are natural witnesses of the incident. 14. For the aforesaid reasons, in our view, the involvement of the appellant Babu Ram has been established in the incident. We may mention that the suggestion given to the eye-witnesses namely that a dacoity took place on the preceding night at the house of informant Puttu Lal and therein Puttu Lal, Ram Piyari, and Parmeshwar Deen suffered injuries, is a tissue of lies. There is nothing on record to show that any property was looted. Apart from it, in our view, had a dacoity actually taken place, the informant Puttu Lal would not have been so unscrupulous so as to have falsely implicated appellants Gaya Prasad and Chhotey Lal, who are his real uncles, appellant Babu Ram, who is his real brother, and appellant Ram Autar, who is his step cousin. 15. This leaves us with only one question namely whether the learned trial Judge was justified in convicting the appellant Babu Ram for offences punishable under Section 147, 324/149, 323 and 302/149 IPC. In our view, the learned Judge was certainly justified in convicting him for offences punishable under Section 147, 324/149 and 323 IPC but in our judgment he erred in convicting him for the offence punishable under Section 302/149 IPC. We have seen that the common object of the unlawful assembly, of which appellant Babu Ram was a member, was to assault informant Puttu Lal. We have also seen that at the time when Babu Ram and others assaulted Puttu Lal, other two victims namely Parmeshwar Deen and Ram Piyari, (parents of Puttu Lal), were not present. We have seen that the common object of the unlawful assembly, of which appellant Babu Ram was a member, was to assault informant Puttu Lal. We have also seen that at the time when Babu Ram and others assaulted Puttu Lal, other two victims namely Parmeshwar Deen and Ram Piyari, (parents of Puttu Lal), were not present. The evidence is that at that time Parmeshwar Deen was in his field and Ram Piyari in her house and they rushed on the place of incident hearing cries of Puttu Lal. It was then that appellant Babu Ram and four others started assaulting them. It is significant to mention that on the person of the deceased Parmeshwar Deen the autopsy surgeon Dr. I. B. Singh only found five ante-mortem injuries; one of which was a punctured wound (on the right fore-arm), three were lacerated wounds and one was a contusion. It is pertinent to mention that beneath two lacerated wounds namely ante-mortem Injury Nos. 2 and 3, Dr. Singh found fracture of the left parietal and temporal bones. It is manifest from a perusal of the post-mortem report and the evidence of Dr. Singh that the deceased died on account of the fractures beneath Injury Nos. 3 and 4. It is significant to mention that three of the appellants namely Babu Ram, Gaya Prasad and Ram Autar were armed with lathis and it has not been specified by the prosecution as to who amongst them was responsible for the said injuries. It is also pertinent to mention that the deceased Parmeshwar Deen was not done to death on the spot but he succumbed to his injuries later on. In such a factual matrix with only one ballam injury being caused to the deceased and that too on non-vital part of the body,in our view, it cannot be said that the common object of the unlawful assembly, of which appellant Babu Ram was a member, was to commit the murder of Parmeshwar Deen. Neither in our judgment can it be said that the members of unlawful assembly knew that the murder of Parmeshwar Deen was likely to be committed. The word likely as used in Section 149 IPC connotes positive knowledge and not a remote possibility. Neither in our judgment can it be said that the members of unlawful assembly knew that the murder of Parmeshwar Deen was likely to be committed. The word likely as used in Section 149 IPC connotes positive knowledge and not a remote possibility. In our view, on the facts of this case, there is nothing to show that members of unlawful assembly had positive knowledge that Parmeshwar Deen could be murdered. However, we feel that it would be reasonable to infer that they knew that when the informant was being assaulted, the deceased who was his father could rush to his rescue and grievous hurt could be caused to the deceased when he attempted to rescue the informant. In such a factual matrix, in our view, instead of an offence punishable under Section 302/149 IPC, one under Section 325/149 IPC would be made out against appellant Babu Ram. 16. This leaves us with only one question namely the quantum of sentence to be awarded to appellant Babu Ram. We find that at the time of the incident he was aged about 20 years. We say this because the incident took place on 23-6-1973 and in his statement under Section 313 Cr. P. C. , which was recorded on 1-2- 1980, his age has been mentioned as 27 years, (the Supreme Court in the case of Raisul v. State of U. P. , reported in AIR 1977 SC 1822 , has held that the estimate of age given in statement under Section 313 Cr. P. C. should be accepted as correct ). We also find that there is material on record to show that he is suffering from leprosy. (In the order dated 26-4-1999 passed by a Division Bench of this Court comprising of Virendra Saran and Kamal Kishore, JJ. before whom Babu Ram was personally present, it has been mentioned that he was suffering from leprosy and not getting himself treated.) We further find that the record shows that he has been in Jail for nearly six months. In our view the aforesaid considerations, coupled with the consideration that the incident took place nearly 30 years ago, (it took place on 23-6-1973), warrant that the sentence of appellant Babu Ram, on all the counts be reduced to the period already undergone. 17. In the result this appeal is partly allowed. In our view the aforesaid considerations, coupled with the consideration that the incident took place nearly 30 years ago, (it took place on 23-6-1973), warrant that the sentence of appellant Babu Ram, on all the counts be reduced to the period already undergone. 17. In the result this appeal is partly allowed. We acquit the appellant Babu Ram for the offence punishable under Section 302/149 IPC, and instead find him guilty for the offence punishable under Section 325/149 IPC and sentence him to the period already undergone by him. Although we confirm his conviction for offences punishable under Sections 147, 324/149 and 323 IPC but we reduce his sentence on the said counts to the period already undergone by him. Appellant Babu Ram is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. As mentioned earlier since appellants Gaya Prasad, Chhotey Lal and Ram Autar died during the pendency of the appeal, their appeal has been directed to abate by this Court. Appeal partly allowed. .