P. C. AGARWAL, J. ( 1 ) VTH A. S. J. Gwalior in S. T. No. 27/85 (State of MP. v. Kishan Singh and 9 others) on 30-11-1987 found all the four appellants guilty under Sections 302/34 of the Indian Penal Code (to be called as Code only) and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 300/- each and in default to undergo further R. I. for three months. Diwan Singh (A-1) and Jeet Singh (A-3) were also held guilty under 5. 325 of the Code and were sentenced to undergo R. I. for one year and to pay a fine of Rs. 200/- and in default to undergo R. I. for two months. Diwan Singh (A-1), Kok Singh (A-2) were further held guilty under Section 323 of the Code and sentenced to pay a fine of Rs. 300/- each and in default to undergo S. I. for two months. All substantive sentences were to run concurrently. Period of detention was setoff in such sentences. ( 2 ) CO-ACCUSED (1) Kishan Singh, (2) Baburam, (3) Jujhar Singh (4) Luxman Singh and (5) Bachchu Singh were acquitted of all the charges while Jagdish Singh was held guilty under 5. 323 of the Code and was acquitted of the other charges. State has not appealed against their acquittals. One of co-accused Indra Singh was below 16 years of age. Hence his case was tried by the Juvenile Court. ( 3 ) AS per prosecution, a public well is situate in Survey Number 642 of village Bijoli. All villagers irrigate their fields from it. On 26-1-1984 at about 8 a. m. , Harcharan (P. W. 1), Chhidi (P. W. 3) and his son deceased Ramhet had gone to this well with a diesel pump set on a bullock cart to take water. Harcharan (P. W. 1) had kept the pump set down on earth. Kok Singh (A-2) with a Lathi and Jeet Singh (A-3) with a Ballam came on spot and objected that pump set be not kept there as the well belonged to them. When Harcharn (P. W. 1) and others tried to keep the pump set back in bullock cart Jeet Singh (A-3) gave a blow on back of Chhiddi (P. W. 3) from the blunt part of Ballam. When Harcharn (P. W. 1) and others tried to keep the pump set back in bullock cart Jeet Singh (A-3) gave a blow on back of Chhiddi (P. W. 3) from the blunt part of Ballam. Then Pratap Singh (A-4), Diwan Singh (A-1) and six acquitted co-accused armed with Ballams, Farsa and Lathis came on spot. Diwan Singh (A-1) had a Farsa while Bachchu Singh and Indrasingh (acquitted co-accused) had Ballams in their hands. All these shouted together that none should be spared. All together, belaboured Chhiddi (P. W. 3), deceased Ramhet and Harcharan (P. W. 1) Bhagwandas (P. W. 5), Mawasi (P. W. 15), Gokul (P. W. 10), Jagannath (P. W. 4), Banshi (P. W. 7), Natholi (P. W. 11) and Prakash (P. W. 16) who had rushed to rescue Harcharan (P. W. 1) and others. Kailash Narayan (P. W. 17) rushed to the police station Bijoli and called the police. ( 4 ) AS per prosecution, Hanu-mant Singh Parmar (P. W. 24), A. S. I. proceeded to the spot with police force and recorded Dehati Nalishi (Ex. P-1) at the instance of Harcharan (P. W. 1), Dayaram, constable took Ex. P-1 to P. S. Bijoli where a criminal case was registered vide Ex. P-49. Besides deceased Ramhet who died on 28-1-1984 in hospital despite treatment, in all 12 persons of the complainant party i. e. Banshiram (P. W. 7), Mawasi (P. W. 15), Jagannath (P. W. 4) who were examined by Dr. D. S. Badkur (P. W. 2) vide Ex. P-2 to Ex. P14. Harcharan (P. W. 1) who was examined by Dr. R. P. Sharma (P. W. 12) vide Ex. P-1. Chhiddi (P. W. 3), Bhagwandas (P. W. 5), Natholi (P. W. 11), Gokul (P. W. 10), Sewaram, Ratiram Prakash (P. W. 16) and Shyamlal (P. W. 6) were examined by Dr. A. Mishra vide Ex. P-50 to P-57. Radiologist found fractures on persons of Shyamlal (P. W. 6) Chhiddi (P. W. 3), deceased Ramhet. Banshiram (P. W. 7), Jagannath (P. W. 4) and Harcharan (P. W. 1) vide Ex. P-60 to Ex. P-64 and Ex. P-66. Autopsy on dead body of deceased Ramhet was done by Dr. V. K. Diwan (P. W. 20 ). Vide Ex. P-46 he noted 15 external injuries on his person and found that death was due to coma as a result of injury to his brain and its effect. P-60 to Ex. P-64 and Ex. P-66. Autopsy on dead body of deceased Ramhet was done by Dr. V. K. Diwan (P. W. 20 ). Vide Ex. P-46 he noted 15 external injuries on his person and found that death was due to coma as a result of injury to his brain and its effect. The death was homicidal and was caused within 24 hours of post-mortem examination on 29-1-1984. Learned trial Court in its judgment has quoted in extenso all such injuries noted on dead body of deceased Ramhet and on all the members of complainant party. Thus, their reproduction in this judgment is not necessary. Blood stained clothes were seized from Jagannath (P. W. 4), Harcharan (P. W. 1), Chhiddi (P. W. 3), Mawasi (P. W. 15) and Bhagwandas (P. W. 5 ). ( 5 ) AS per prosecution a Farsa was seized from Diwan Singh (A-1), a Ballam was seized from Jeet Singh (A-3) and Lathis were seized from Pratap Singh (A-4) and Kok Singh (A-2 ). Out of acquitted accused a Ballam was seized from Bachhu Singh and Lathis from others. Juvenile co-accused Indar Singh also had a Ballam. F. S. L. noted presence of blood on Farsa seized from Diwan Singh (A-1) and clothes of deceased Ramhet and other injured persons. After due investiga-tion charge-sheet under Sections 302, 325, 147, 148, 149 of the Code was filed. ( 6 ) ALL these appellants and acquitted co-accused pleaded not guilty. They have denied all the prose-cution allegations. Diwan Singh (A-1) and Jeet Singh (A-3) claimed that on report of their brother Bachchu Singh, members of complainant party were convicted. In support they have filed copy of F. I. R. (Ex. D/23), charge-sheet (Ex. D/22) and copy of judgment dated 2-9-1985 (Ex. D/24 ). They claim false implication. Kok Singh (A-2) claimed that a cross case is pending in criminal Court and to save their skin, the complainant party has falsely prosecuted the appellants. Pratap Singh (A-4) has claimed with Diwan Singh (A-1) and Jeet Singh (A-3) that he has been falsely impli-cated due to enmity and with Kok Singh (A-2) he alleges that a false case has been instituted by complai-nant party to save themselves in the counter case. ( 7 ) BESIDES that Devial (D. W. 1) is examined to prove F. I. R. (Ex. ( 7 ) BESIDES that Devial (D. W. 1) is examined to prove F. I. R. (Ex. D/2i) lodged by Kisan Singh s/c Sukhlal Singh of previous offence dt. 19-7-1983. Chandan Singh (D. W. 2) is examined to prove counter version of the occurr-ence who claimed that Inder Singh (Juvenile co-accused), Pratap Singh (A-4), Kok Singh (A-2) and acquitted accused Bachchu Singh, Jagdish Singh, Jujhar Singh and Babu were not there on spot. Dr. P. K. Jam (D. W. 3) and Dr. Mahesh Kumar Saraswat (D. W. 4) have been examined to prove injuries of Luxman Singh (acquitted co-accused) who had in all nine lacerated wounds and bruises etc. on different parts of his body and fracture on right side of his head. During cross-examination of Dr. D. S. Badkur (P. W. 2), injuries on person ofjeet Singh (A-3) vide Ex. D/i, Diwan Singh (A-1) vide Ex. D/2 were also got proved. Such injuries are quoted in extenso in paragraphs 57 and 58 of the judg-ment of the trial Court. As it is, Luxman Singh (one of the acquitted co-accused) lodged a report (Ex. D/28) with the allegation that Jeet Singh (A-3) was going to his field and he saw deceased Ramhet. Harcharan (P. W. 1) and Chhiddi (P. W. 3) had kept pump set on the well and were about to irrigate. Jeet Singh (A-3) demanded half of the cost of construction of aqueduct. It was alleged that these three abused Jeet Singh (A-3) and beat him. When Luxman Singh came for his rescue, he was also beaten. It was alleged that Natholi (P. W. 1i), Kaptan, Severam, Bansi (P. W. 7), Ramdayal, Jagannath (P. W. 4), Prakash (P. W. 16), Shyamlal (P. W. 6) and Bhagwandas (P. W. 5) came armed with Lathis and beat Jeet Singh (A-3), Crime No. 6/84 under Sections 147, 148, 149, 323, 324, and 325 of the Code was regis-tered against these witnesses and a Criminal Case No. 630/84 (State of MP. v. Chhiddilal and others) was pending in the Court of Magistrate. Clearly, a cross case has also been there. ( 8 ) THOUGH, the appellants and acquitted co-accused were charged under Ss. 148, 302/149, 307/149, 325/149 and 323/149 of the Code, yet, the learned trial Court found as already seen, only these four appellants guilty and convicted them under Ss. 302/34 of the Code. Clearly, a cross case has also been there. ( 8 ) THOUGH, the appellants and acquitted co-accused were charged under Ss. 148, 302/149, 307/149, 325/149 and 323/149 of the Code, yet, the learned trial Court found as already seen, only these four appellants guilty and convicted them under Ss. 302/34 of the Code. He has held only Diwan Singh (A-1), Jeet Singh (A-3) guilty under 5. 325 and Kok Singh (A-2), Diwan Singh (A-1) and Jagdish Singh guilty under Sec-tion 323 and sentenced them as aforesaid. Anyhow, Jagdish Singh has not appealed. All others have been acquitted. ( 9 ) THE appellants in this Court have mainly argued that the prose-cution has suppressed the first medical report of deceased Ramhet, though, he was examined during his life time. In P. M. report Ex. P-46, doctor has noted at least four stitched wounds which were not opened and thus the nature of the weapon which caused the same could not be known to the prejudice of the appellants. The doctor did not say in so many words that injuries on body of deceased Ramhet were sufficient in the ordinary course of nature to cause his death. It is vehemently argued that prosecution witnesses have given a false explana-tion of injuries on persons of Jeet Singh (A-3), Diwan Singh (A-1) and acquitted co-accused Luxman Singh all of whom had very extensive and grievous injuries. Place of incident was the field of Jagdish (one of the acquitted co-accused ). Actually, the complainant party was aggressor and the appellants had merely acted in exercise of their right of private defence of person and property. It is further claimed that even if the appellants had exceeded in such exercise they can be held responsible for their individual acts only and not construc-tively by use of 5. 34 of the Code. It is also claimed that appellants were charged under Sections 302/149 of the Code and thus their conviction under Section 302/34 of the Code has been illegal. ( 10 ) ON the other hand, learned Addi. Govt. Advocate has supported the judgment of trial Court. According to him, the trial court has very ably appreciated the evidence on record and has taken in his consideration the whole of the material on record and contentions before recording convic-tions of the appellants. ( 10 ) ON the other hand, learned Addi. Govt. Advocate has supported the judgment of trial Court. According to him, the trial court has very ably appreciated the evidence on record and has taken in his consideration the whole of the material on record and contentions before recording convic-tions of the appellants. ( 11 ) HARCHARAN (P. W. 1), the uncle, Chhiddi (P. W. 3), the father of deceased Ramhet have claimed that deceased Ramhet had suffered fatal injuries in the incident. Jagannath (P. W. 4), Bhagwandas (P. W. 5), Shyamlal (P. W. 6), Bansi (P. W. 7), Gokul (P. W. 10), Natholi (P. W. 11), Ram Singh (P. W. 13), Mawasi (P. W. 15), Prakash (P. W. 16), Kailash Narayan (P. W. 17) have fully supported them. Dehati Nalishi (Ex. P-1) lodged the same day by Harcharan (P. W. 1) supports this story. Of course, dece-ased was taken to the hospital and might have been examined there. X-ray of skull was taken and a fracture was found therein. Inquest memo (Ex. P-5) was prepared by police. Dr. V. K. Diwan conducted autopsy on the dead body on 29-1-1984 and found 15 external injuries on his person. According to him, cause of death was injury to brain and consequent coma. The death was homicidal. In view of such overwhelming evidence merely because medical report of deceased Ramhet written when he was alive is not there on record, the case of the prosecution cannot be thrown out. It is mere carelessness on the part of the prosecution. No adverse infe-rence can be drawn on that count. The appellants had also not objected on its non-production during trial and had maintained silence. Appellants have merely denied the factum and have not put any counter version. Thus, unnatural homicidal death of deceased Ramhet due to extensive injuries on his person and head brain which caused coma is well established. ( 12 ) THE finding of the trial court that all four appellants had caused death of deceased Ramhet is based on evidence of Harcharan (P. W. 1), the real uncle of deceased, Chhiddi (P. W. 3), the father of deceased supported by Jagannath (P. W. 4), Bhagwandas (P. W. 5) Shyamlal (P. W. 6), Bansiram (P. W. 7), Gokul (P. W. 10), Natholi (P. W. 1i), Mawasi (P. W. 15) and Prakash (P. W. 2 ). Thus not less than 10 witnesses have supported the case of the prosecution. First two of these witnesses were present on spot from the very begin-ning while other witnesses had reached the spot on hearing cries and disturbance. It is noteworthy that all these witnesses are residents of village Bijoli itself and have their houses in the near vicinity. Their presence on spot is natural and probable. Almost all of them were injured in the mci-dent. They are named in Dehati Nali-shi (Ex. P-1 ). Their presence on spot is admitted in Ex. D/28, F. I. R. lodged by Luxman Singh (acquitted coaccused) in the cross-case. Against most of them Criminal Case No. 630/84 (State of MP. v. Chhiddi and others) is pending in the Court of Magistrate. Being natural and probable witnesses their statements are entitled to great value. Ramanbhai Narayanbhai Patel v. State of Gujrat, Ramji Singh v. State of Bihar. Testimony of Harcharan (P. W. 1) and Chhiddi (P. W. 3) should not be rejected merely because they are close relatives of the deceased clearly because, relatives of deceased are not likely to falsely implicate a person in the incident leading to the death of their relation. State of Rajasthan v. Hanuman Hukum Singh v. State of Rajasthan. Beinginjured in the same incijent their statements have high probative value. Anil Ral v. State of Bihar- Majju v. State of MP. It is noteworthy that all these ten witnesses have unanimously named these four appellants for causing fatal injuries to deceased Ramhet. They have withstood their cross-examination very well. Besides some minor dis-crepancies or inconsistencies nothing is there on record to discredit them. Their statements were not tutored which has enhanced value of their testimony. State of II. P. v. Lekhraj Narayan Chetanram Choudhary v. State of Maharashtra Joseph v. State of Kerala. Their statements are natural, untutored and probable. ( 13 ) THE story told by these ten injured eye-witnesses is fully supported by Dehati Nalishi (Ex. P-1) recorded the same day within 30 minutes of the occurrence. Of course, PM report (Ex. P-46) recorded by Dr. V. K. Diwan (P. W. 20) also supports this story. Injury reports recorded by Dr. D. S. Badkur (P. W. 2) vide Ex. P-2 to Ex. P-4 relating to Bansi (P. W. 7), Mawasi (P. W. 15) and Jagannath (P. W. 4) by Dr. Of course, PM report (Ex. P-46) recorded by Dr. V. K. Diwan (P. W. 20) also supports this story. Injury reports recorded by Dr. D. S. Badkur (P. W. 2) vide Ex. P-2 to Ex. P-4 relating to Bansi (P. W. 7), Mawasi (P. W. 15) and Jagannath (P. W. 4) by Dr. R. P. Sharma (P. W. 12), Ex. P-13 relating to Harcharan (P. W. 1) clearly support this story ofcourse though Dr. A. K. Mishra who examined Chhiddi (P. W. 3), Bhagwandas (P. W. 5), Natholi (P. W. 11), Gokul (P. W. 10 ). Sewaram, Ratiram, Prakash (P. W. 16), Shyamlal (P. W. 6) vide Ex. P-50 to Ex. P157 is not executed in Court yet his signatures on such reports have been identified by Dr. D. S. Badkur (P. W. 2 ). Finding of fractures on person of Shyamlal (P. W. 6), Chhiddi (P. W. 3), deceased Ramhet, Banshiram (P. W. 7), Jagannath (P. W. 4) and Harcharan (P. W. 1 ). X-ray reports being Ex. P-60 to Ex. P164 and Ex. P-66 on record. Though of course. Dr. R. Sengar, radio-logist has not been examined, yet, these X-ray reports supported by X-ray plates cannot be thrown into dustbin. All this fully supports the case of prosecution. Besides this, blood stained clothes were seized from Jagannath (P. W. 4), Harcharan (P. W. 1), Chhiddi (P. W. 3), Mawasi (P. W. 15), Bhagwandas (P. W. 5) vide Ex. P-39 to Ex. P143 which support such story. ( 14 ) SEIZURE of Farsa from Diwan Singh (A-1) vide Ex. P127 on his discovery vide Ex. P-35 and a Lathi from Pratap Singh (A-4) vide Ex. P-38 on his discovery vide Ex. P136, a Ballam from Jeet Singh (A-3) vide Ex. P113 on discovery made by him vide Ex. P-10 and a Lathi from Kok singh (A-2) vide Ex. P-8 on discovery made by him vide Ex. P-4 also support the prosecution. Presence of blood on Farsa seized from Diwan Singh (A-1) is confirmed by FSL vide Ex. P-68. All this overwhelming evidence support prosecution case. ( 15 ) THOUGH, the appellants have claimed innocence yet they have put a specific counter version of the case. Luxman Singh (acquitted co-accused) had lodged an F. I. R. (Ex. P-4 also support the prosecution. Presence of blood on Farsa seized from Diwan Singh (A-1) is confirmed by FSL vide Ex. P-68. All this overwhelming evidence support prosecution case. ( 15 ) THOUGH, the appellants have claimed innocence yet they have put a specific counter version of the case. Luxman Singh (acquitted co-accused) had lodged an F. I. R. (Ex. D/28) whereupon Crime No. 6/84 under Sections 147, 148, 149, 323 and 325 of the Code was registered against eleven persons of the complainant party. Almost all of them have been examined in the Court as prosecution witnesses. It was claimed that Jeet Singh (A-3) had merely demanded half of the cost of construction of aqueduct whereupon deceased Ramhet, Har-charan (P. W. 1) and Chhiddi (P. W. 3) had abused him and beat him. Lux-man Singh (acquitted co-accused) had rushed to his rescue but he too was beaten and then other prosecu-tion witnesses had come to the spot with Lathis and belaboured Jeet Singh (A-3 ). ( 16 ) IT is noteworthy that there was no reference in this report of any injury to the person of Diwan Singh (A-1) who was examined by Dr. D. S. Badkur (P. W. 2) on 29-1-1984 i. e. 4th day of the occurrence. He had an infected wound 4. 5 cm x 2 cm on left leg with pus. It is not definitely proved that Diwan Singh (A-1) had sustained this injury in this incident. Jeet Singh (A-3) had four injuries out of which only one was caused by a sharp edged weapon, while others were caused by hard and blunt objects. Dr. D. S. Badkur (P. W. 2) in Para 14 has admitted that such injuries were only super-ficial and could be caused by fall also. All these injuries do not commen-surate with the defence story of being beaten first by Chhiddi (P. W. 3), Har-charan (P. W. 1) and deceased Ramhet and then by atleast 8 or 9 other prose-cution witnesses who assembled when deceased Ramhet fell down. Of course, Luxman Singh (acquitted co-accused) as per report of Dr. P. K. Jam (D. W. 3) had in all nine injuries on his person caused by hard and blunt objects. All were simple except one on skull which was found fractured by Dr. Sengar vide his report (Ex. D/18) proved by Dr. Mahesh Kumar Saraswat (D. W. 4 ). Of course, Luxman Singh (acquitted co-accused) as per report of Dr. P. K. Jam (D. W. 3) had in all nine injuries on his person caused by hard and blunt objects. All were simple except one on skull which was found fractured by Dr. Sengar vide his report (Ex. D/18) proved by Dr. Mahesh Kumar Saraswat (D. W. 4 ). Obviously as per both the versions Luxman Singh (acquitted accused) had reached later actually that has been the reason for his acquittal. Obviously, he did not sustain any injury before these four appellants fatally assaulted deceased Ramhet, Harcharan (P. W. 1) and Chhiddi (P. W. 3 ). As it is the learned trial Court has not convicted any of the co-accused for the brawl after deceased Ramhet fell down. ( 17 ) IT is well settled that non-explanation of injuries on the person of accused could be a serious defect only when (a) Such injuries were all of serious nature and (b) were caused at the time of the occurrence in incidet. Takhaji Heeraji v. Thakore Kuber Singh Chaman Singh Gurmit Singh v. State of Punjab. Obviously, in the present case the second condition was qt fulfilled. The learned Advoce for appellant had relied upon Lakshmi Singh v. State of Bihar State of Rajasthan v. Madho and has argued that for non-explanation of injuries on the person of Jeet Singh (A-3), Diwan Singh (A-1) and Luxman Singh (acqui-tted co-accused), appellants are entit-led to benefit of doubt. However, this factor though of great importance gives rise to several inferences. ( 18 ) CHANDAN Singh (D. W. 2) has been examined in support of counter version. He has related the whole story from beginning to end. However, he did neither intervene nor tried to pacify any party. He has been more loyal than the King himself to the defence case and has gone ahead the case of appellants by skillfully improving upon it on strategetical points. As per F. I. R. (Ex. D/28) only verbal altercation has ensued before Luxman Singh had reached the spot. While he claimed that Harcharan (P. W. 1), Chhiddi (P. W. 3) and deceased Ramhet had already beaten Jeet Singh (A- 3 ). There was no reference to causing any blow to Diwan Singh (A-1) in F. I. R. yet, he claims that Diwan Singh (A-1) was also beaten. While he claimed that Harcharan (P. W. 1), Chhiddi (P. W. 3) and deceased Ramhet had already beaten Jeet Singh (A- 3 ). There was no reference to causing any blow to Diwan Singh (A-1) in F. I. R. yet, he claims that Diwan Singh (A-1) was also beaten. He claims that Luxman Singh and Diwan Singh (A-1) had defended by use of Lathis and Spade. However, no spade is seized from spot. His statement in itself is not enough to explain exten-sive injuries on person of deceased Ramhet, Harcharan (P. W. 1) and Chhiddi (P. W. 3) and others of the complainant party. No weapon has been seized from Harcharan (P. W. 1), Chhiddi (P. W. 3) or any of the other prosecution witnesses as it is, complainant party had gone merely to irrigate their fields and thus there was no question of their being armed. His statement does not rebut the prosecution case. ( 19 ) AS it is, well was situate on Government land. Nearly 100 fields of vicinity used to be irrigated from it. Fields of Jagdish Singh and Luxman Singh (acquitted co-accused) lay nearer to such well Fields of Chhiddi (P. W. 3) and his son deceased Ramhet were also there but situate at a distance. In between there were three or four other fields. Ofcourse, Chhiddi (P. W. 3) or deceased Ramhet could get water only through the aqueduct passing through these nearby fields. Now, on a fateful day Jeet Singh (A-3) had insisted on payment of half of the cost of aqueduct then and there, before Chhiddi (P. W. 3) or deceased Ramhet could take water from the well. However, there has been nothing on record to show that such aqueduct was constructed either with their consent or they had ever agreed to pay half of the cost incurred by Jeet Singh (A-3 ). There has been no evidence on record to show that Jeet Singh (A-3) or others had ever demanded half cost or Chhiddi (P. W. 3), Harcharan (P. W. 1) had ever refused to pay disputed. In these facts the sudden demand of half of the cost of aqueduct by Jeet Singh (A-3) on the pain of depriving the complainant party from irrigating their fields was clearly unreasonable and unwarranted. In these facts the sudden demand of half of the cost of aqueduct by Jeet Singh (A-3) on the pain of depriving the complainant party from irrigating their fields was clearly unreasonable and unwarranted. ( 20 ) IT is true that dead body of deceased Ramhet was found lying in the field of Jagdish Singh. Bhagwan-das (P. W. 5) was also seen lying in blood pool in the aqueduct. However, complainant party had a right to take water from Govt. well and their presence near Govt. well was not unauthorised or trespass. Even otherwise, mere cri-minal trespass in open land does not entitle anyone to cause death in exer-cise of right of private defence of property. Jassa Singh v. State of Haryana, State of Rajasthan v. Ram Bharosi, Rajendra v. State of Harayana. The well and aqueduct in question are situate near the village. Both the parties live in this small village with a population of only 400 or 500. Both the parties live in the same locality. There is clear evidence that initially only Harcharan (P. W. 1), Chhiddi (P. W. 3), and deceased Ramhet from complainant party had gone to the well. Jeet Singh (A-3) with Kok Singh (A-2) had come to check them. Diwan Singh (A-1) and Pratap Singh (A-4) had reached in quick succession. All these appellants had belaboured Chhiddi (P. W. 3) and deceased Ramhet who had fallen down. Hearing the cries and commotion other prosecution wit-nesses and acquitted co-accused had also rushed to the spot. Then atleast, i0 of the prosecution witnesses were injured. Out of these six had suffered prosecution grievous injuries. On the other hand only Luxman Singh (acquitted co-accused) had certain injuries on his person. It cannot be assumed that in such a fight 10 or i2 villagers would have suffered beatings silently which in itself explain injuries of Luxman Singh. This Court is sur-prised by the finding of the learned trial Court that no formation of un-lawful assembly was proved even when acquitted co-accused had come to the spot and have taken part in the fight in which not less than ii prosecution witnesses were beaten and six of them had grievous injuries on their person. Adoption of easy going approach by the trial Court has to be condemned. Anyhow, the State has not come in appeal against such acquittals. Adoption of easy going approach by the trial Court has to be condemned. Anyhow, the State has not come in appeal against such acquittals. How-ever, it is well settled that merely because the trial court acquitted other accused giving them benefit of doubt, appellants need not be acquitted if there is strong and consistent evi-dence against them. Majju v. State of MP. (supra ). Thus, acquittal of acquit-ted co-accused does not effect e case of appellants. Arjun v. State of Rajasthan Bolineedi Venkataramiah v. State of A. P. ; Pipal Singh v. State of Punjab. It is well settled that Court must make attempt to separate grain from chaff. Case of applicant was severable from acquitted co-accused. Balaka Singh v. State of Punjab. ( 21 ) THOUGH of course 10 persons were charged under Ss. 302/i49 of the Code, yet the Trial Court has acquitted 6 co-accused and convicted only four of them under 5. 302/34 of the Code though there was no charge u/s 302/34 of the Code. The learned Trial Court has relied upon Laxman Singh v. State of Punjab Nanak Chand v. State of Punjab State of Bihar v. Rahim Nadat. In re P. Ramalu and others , to fortify his action. As per prosecution, clear a case of sharing common intention was made out against these appellants. There has been no prejudice to them. Obviously, in the facts and circumstances of the case common intention of these four appellants to cause death of deceased Ramhet was well established. They have caused not less than 15 injuries on his person of which 2 were on head, one was on left ear, one was on left neck, one was on left shoulder, one was on abdomen, one was on clavicular region, three were on back and one on waist, others were on thigh and left arm, fracture of parietal bone and skull was seen vide Ex. p. 62. X-ray plates have also been there on record. Deceased Ramhet had died on the third day in hospital of the occurrence despite getting available medial aid. Cause of death was coma due to injury to brain and cumulative affect of other injuries. The Learned Trial Court on objective appreciation of evidence had held that such injuries were sufficient to cause death of the deceased Ramhet. Merely because Dr. Deceased Ramhet had died on the third day in hospital of the occurrence despite getting available medial aid. Cause of death was coma due to injury to brain and cumulative affect of other injuries. The Learned Trial Court on objective appreciation of evidence had held that such injuries were sufficient to cause death of the deceased Ramhet. Merely because Dr. V. K. Diwan (P. W. 20) did not utter in so many words that such injuries were sufficient in the ordinary course of nature to cause death of deceased Ramhet, such finding cannot be vitiated. Finally it is for the Court and not for the doctor to decide whether the injuries were sufficient in the ordinary course of nature to cause death. Thus, the conviction of the appellants under Sections 302/34 of the Code cannot be faulted. Evidence of eye witness was in accord with medical evidence further supported by recovery of wea-pons. No cocent reason to disbelieve was there. Asa Singh v. State of Punjab. State of Punjab v. Jugraj Singh. ( 22 ) THE learned advocate for the appellants has argued that the appellants could be convicted only for their individual acts and not for construc-tive liability. His main reliance had been on nonexplanation of injuries on the person of Jeet Singh (A-3), Diwan Singh (A-1) and Laxman Singh (acqui-tted co-accused) and the fact that the complainant party had come to the field of Jagdish Singh. Dead body of deceased Ramhet was seized from there and Bhagwandas (P. W. 5) also seen lying in the aqueduct which according to him show that the comp-lainant party was aggressor and the appellant had merely acted in exercise of their right of private defence. However, as already seen both these contentions have blown out. Certainly the complainant party was not aggressor. It is not a case of free-fight in two groups to invite Lath v. State of LP. Appellants are not convicted for sudden fight on spur of moment. Mariadasan v. State of T. N. or Jayaraj v. State of Tamilnadu Thus, clearly the Learned Trial Court has not erred in not confining the liability of the appellants to their individual acts only. Appellants are not convicted for sudden fight on spur of moment. Mariadasan v. State of T. N. or Jayaraj v. State of Tamilnadu Thus, clearly the Learned Trial Court has not erred in not confining the liability of the appellants to their individual acts only. ( 23 ) IT is noteworthy that as per evidence on record Jagdish Singh (P. W. 4), Bhagwan Das (P. W. 5), Shyam-lal (P. W. 6), Bansiram (P. W. 7), Gokul (P. W. 10), Natholi (P. W. 1i), Ram Singh (P. W. 13), Mavasi (P. W. 15), Prakash (P. W. 16), Kailash Narayan (P. W. 17) had rendered the spot after deceased Ramhet had fallen down injured on earth. Acquitted co-accused had also reached to spot after deceased Ramhet had fallen down. Obviously acquitted co-accused had joined their hand with the appellants and had belaboured members of the complainant party who had assembled on the spot hea-ring the disturbance. They have joined the appellant and formed unlawful assembly of more than five knowingl full well that such assembly had already became unlawful. Lokeman Shah v. State of West Bengal. It is surprising that the learned Court below did not keep this aspect of the matter in his mind when he held that no unlawful assembly was formed and convicting Kok Singh (A-2), Diwan Singh (A-1), Jeet Singh only under S. 323 of the Code. Though, of course his finding that Jeet Singh (A-3) and the Diwan Singh (A-1) were guilty of causing grievous hurts to Jagannath (P. W. 4), Bansiram (P. W. 7) and Chhiddi (P. W. 3 ). Wholesale acquittal of acqui-tted coaccused despite clear proof of formation of unlawful assembly and joining with the same has been at the least been no State appeal against such finding and same has to rest as it is. Even then we cannot restrain ourselves from commenting that more cir-cumspection and caution is required from the seniorjudgeasthetrial Court was while acquitting all of the others. ( 24 ) THUS, in our opinion the learned Trial Court has not erred atleast in finding all these appellants guilty under Sections 302/34 of the Code. His finding that Jeet Singh (A-3) and Diwan Singh (A-1) are guilty under 5. 325 and Kok Singh (A-2) and Diwan Singh (A-1) are further guilty under S. 323 of the Code has also to be confirmed. His finding that Jeet Singh (A-3) and Diwan Singh (A-1) are guilty under 5. 325 and Kok Singh (A-2) and Diwan Singh (A-1) are further guilty under S. 323 of the Code has also to be confirmed. The Learned Trial Court has awarded lesser penalty prescribed under 5. 302 of the Code, as such there is no scope for interference in the same. Regarding other sentences also which are to be executed con-currently, no interference is needed even though more than i8 years have elapsed since after the occurrence. Hence, there is no substance in this appeal. The same is liable to be dismissed in its entirety. ( 25 ) THE appellants are on bail. They shall surrender within 3 weeks before the C. J. M. Gwalior. In case of default non-bailable warrants shall be issued against them and their personal bond and surety bonds shall stand forfeited. Convictions and sen-tences are to be certified to the Trial Court with a copy to the C. J. M. Gwalior. ( 26 ) APPEALS are without any sub-stance, hence dismissed. Convictions and sentences are confirmed. Appeals dismissed. .