Judgment Prabhat Kumar Sinha, J. 1. The appellants aforesaid stand convicted under section 302 read with Section 34 of the Indian Penal Code ("the Code", in short) and sentenced to imprisonment for life plus a fine of rupees five thousand or to undergo rigorous imprisonment for five years, in default. They have further been convicted under section 307 read with section 34 of the Code, and sentenced to rigorous imprisonment for ten years with fine of rupees two thousand, to undergo rigorous imprisonment for two years, in default. They also have been convicted under section 323 of the Code and sentenced to rigorous imprisonment for one year, all the sentences to run concurrently. The fine, if deposited has been ordered to be paid to the wife of the deceased. 2. The facts, as coming out of the fardbayan of Ramzan Ali, P.W. 5, brother of the deceased Sharfuddin is that on 21.5.1995 while at about 5.30 A.M. he was coming from the field after easing himself, he heard bulla. He rushed to his house and found his brothers, namely, Sharfuddin and Ali Ahmad lying down and appellants Noor Mohammad there with spade, Safi Ahmad with bhala and Ahmad Mian with lathi. Maiman Nissa, P.W. 2, wife of the deceased, told that Noor Mohammad had called Panchayat to show them the filled up soil whereafter verbal dual took place between the two parties and then Noor Mohammad assaulted on the head of Sharfuddin with spade, who fell down. Ali Ahmad when wanted to rescue him he also was assaulted with spade and Safi Ahmad and Ahmad Mian who had rushed with bhala and lathi, respectively, assaulted both the injured. They also assaulted Hanufa, mother of the deceased. This statement was given at Sathi hospital on the same day at about 9.15 P.M. 3. In defence the witnesses were suggested that the informant side were, in order to forcibly occupy the land in front of the darwaza of the appellants, filling that portion with soil and at that time they had also assaulted appellants and in midst of that the deceased and the injured had fallen upon Naad receiving fatal injuries. Counter case against the informant side was also filed. 4. Evidence of eye-witnesses about the real assault as well the medical evidence on record would clarify to a great extent the success of the prosecution in establishing the charges. Counter case against the informant side was also filed. 4. Evidence of eye-witnesses about the real assault as well the medical evidence on record would clarify to a great extent the success of the prosecution in establishing the charges. Besides Maimun Nissa, other eye-witnesses are Gafoor Mian (P.W. 1), All Ahmad (P.W. 3) and Mohammad Arif (P.W.), son of the deceased. The evidence of these witnesses may first be seen as to what they have said about the actual assault. RW. 1 is a neighbour living near the house of the informant, who said that in that morning Noor Mohammad had heated discussion with the deceased, the deceased questioning as to why he had gone for Panchayati. Sharfuddin then handed over spade to Noor Mohammad to demarcate the land belonging to the deceased. Noor Mohammad then hit the head of Sharfuddin with the back of the spade who fell down unconscious. Safi Ahmad assaulted Sharfuddin on his arms with bhala whereas Ahmad Mian assaulted the deceased with lathi When Ali Ahmad came to save his brother, Noor Mohammad assaulted him on head with the Pasa of spade and when he fell down Ahmad Mian assaulted him with lathi. When mother of Sharfuddin Mian tried to save them, Noor Mohammad assaulted her with lathi. 5. P.W. 2 also similarly supported about the genesis of the quarrel stating that Sharfuddin, her husband, opposed the Panchayati saying that both sides should solve their disputes themselves, at which the villagers who had come, went away whereafter Sharfuddin brought a spade from the house and gave that to Noor Mohammad asking him to remove the soil. No sooner Sharfuddin turned back, Noor Mohammad assaulted on his head with back of spade and when Ali Ahmad came there and wanted to lift Sharfuddin, Noor also assaulted him with the back of spade. Safi assaulted the deceased on both arms with bhala and Ahmad Mian assaulted Ali Ahmad with lathi. When the mother came, Ahmad Mian also assaulted her with lathi. She said that Gaffoor Mian (P.W. 1) and Zahir Mian (not examined) had seen the occurrence. She admitted that Noor Mohammad was his Pattidar, She also admitted that her Naao and Khunta were in front of the darwaza of Noor Mohammad, by the side of the road where the soil had been filled up. She admitted (paragraph 9) that a counter case was also filed. She admitted that Noor Mohammad was his Pattidar, She also admitted that her Naao and Khunta were in front of the darwaza of Noor Mohammad, by the side of the road where the soil had been filled up. She admitted (paragraph 9) that a counter case was also filed. In cross-examination she also said that Ahmad Mian also had assaulted her husband with lathi on his hand but she did not count the blows. She also claimed that she also was given three lathi blows. She also said in cross-examination that Ali Ahmad was given many blows with lathi. According to her, both she and her husband were bleeding from their wounds. 6. P.W. 3, the injured, deposed that in the morning hours near the place where he was working, first some Panchayati was convened and on pleadings of Sharfuddin they went away. Thereafter Sharfuddin brought the spade from the house and asked Noor Mohammad to mark the place so that the soil might be removed. He said that when Sharfuddin turned, Noor Mohammad assaulted on his head with the back of the space causing injury. When this witness wanted to flee away with his brother and bent down to pick him up, Noor Mohammad hit with spade on his head whereafter he fell down unconscious and regained consciousness in the Bettiah Hospital. He asserted that earlier they had no quarrel with the family of Noor Mohammad and that they had not objected while soil was filled up the preceding day. He said that his Naad-Khunta were adjacent to the Naad-Kunta of Noor Mohammad but they had no differences. From his evidence (paragraph 6) it wili appear that he was, before occurrence, sitting across. the road at the kotha of Mobarak Mian. He also said (paragraph 16) that when he was leaving his brother none else was there. Obviously, he meant no other witness. He also admitted the filing of counter-case by the Noor Mohammad but said that at the time of occurrence none of the accused had suffered any injury. 7. P.W. 4, Md. Arif, son of the deceased similarly supported the prosecution case including about genesis of the occurrence. According to him, when asked by Sharfuddin, he had brought spade and had given that to Sharfuddin. 7. P.W. 4, Md. Arif, son of the deceased similarly supported the prosecution case including about genesis of the occurrence. According to him, when asked by Sharfuddin, he had brought spade and had given that to Sharfuddin. Sharfuddin gave spade to Noor Mohammad asking him to mark the land but when Sharfuddin turned, Noor Mohammad hit on his head with the back of the spade who fell down. According to him, when his uncle came to save Sharfuddin and bent down then Noor Mohammad hit on his head with the back of the spade at which time Shafi Ahmad and Ahmad Mian brought from their house bhala and lathi, respectively. Ahmad had assaulted his grandmother also on the road. He also stated that earlier he had no difference with Noor Mohammad nor the appellants had said anything while the soil was being filled up, but claimed that since one year Noor Mohammad was telling that he would kill Sharfuddin. He admitted that in the Panchayat Noor Mohammad had come empty handed. He claimed that they had not inflicted any injury upon any of the accused. In answer to a question this witness said that when he saw his father first, his father was lying down with bleeding injury on the head. However, nothing can be read in this statement which was in answer to a specific question which might be a leading one. 8. P.W. 5, the informant has narrated the incident as eye-witness, fully supporting about killing of Sharfuddin and injuries upon his other brother. He claimed that Safi Ahmad assaulted Sharfuddin with bhala and Ahmad Mian gave two lathi blows to Ali Ahmad fracturing his arm, and also assaulted his mother. He also said how his fardbayan was recorded. He also claimed that witness Zahir Mian had gone in collusion with the accused hence he had not been examined as a witness. He admitted the counter case. 9. In cross-examination this witness admitted that before the Police he had not stated that he was an eye-witness to the occurrence but had told the Police what he had heard about the occurrence from the Bhabi, Maimun Nissa. He also admitted that when he first saw Sharfuddin and Ali Ahmad, they were unconscious and villagers were also there. He also described the place of occurrence. In the first information report itself he has not claimed to have seen the occurrence. He also admitted that when he first saw Sharfuddin and Ali Ahmad, they were unconscious and villagers were also there. He also described the place of occurrence. In the first information report itself he has not claimed to have seen the occurrence. Therefore, on the point of actual occurrence the evidence of this witness may not be taken into account but what is relevant is what he was told by the P.W. 2, which was just after the occurrence, and that he had seen the two injured at the place of occurrence. 10. Now, I will advert to the evidence of RW. 6, Dr. Manoj Kumar, who was then posted at Sathi as Medical Officer of Primary Health Centre and had examined the injuries suffered by Ali Ahmad as well by Sharfuddin. This witness found following injuries upon Ali Ahmad: "(i) Sharp wound 2" x 1/4" x bone deep over the above portion of head. (ii) Massive swelling of left arm and fracture of mid-shaft of humerous. (iii) Tenderness all over the body. Age of injuryWithin 12 hours. Cause of injury.Injury no. 1 was caused by sharp substance and nos. 2 and 3 caused by hard blunt substance. Nature of injury.Injury nos. (i) and (ii) are grievous in nature and (iii) is simple in nature." The Injury report is Exhibit-2. 11. The doctor had found following injuries upon Sharfuddin Mian when examined at 8.10 A.M. "(1) Injury no. 1.Sharp wound 1" x 1/4" x bone deep over the above portion of head. (2) Sharp wound.1" x 1/4" x bone deep behind the head. (3) Sharp wound1/2" x 1/4" x 1/ 8" over the right side of head. (4) Sharp wound 1/2" x 1/4" x 1/4" over the lateral side of right arm. Age of injury within 12 hours Cause of injury.sharp substance. Nature of injury.Injury nos. (i) & (ii) are grievous in nature and (iii) and (iv) are simple in nature." The injury report is Exhibit-2/1. This witness, it will appear, had also examined Hanufan Khatoon and found bruise 4" on the lower back, a simple injury caused by hard and blunt substance. Injury report is Exhibit-2/2. 12. Coming to the evidence of P.W. 7, Dr. Sunil Kumar, who on 23.5.1995 had conducted autopsy at 11.00 A.M., at M.J.K. Hospital, Bettiah upon dead body of Md. Sharfuddin, his findings are as follows: "On external examination. Injury report is Exhibit-2/2. 12. Coming to the evidence of P.W. 7, Dr. Sunil Kumar, who on 23.5.1995 had conducted autopsy at 11.00 A.M., at M.J.K. Hospital, Bettiah upon dead body of Md. Sharfuddin, his findings are as follows: "On external examination. (1) One stitched injury on right upper arm. (2) One stitched injury on the left side of the skull. (3) One stitched injury on the right side of skull. (4) One stitched injury on the back of the skull. On dissection of injury no. (1) above, after removal of stitches, lacerated wound of 1 1/2" x 1/2" x 1/4" was found. On removal of stitches on injury nos. (2) and (3) above I found blood and blood clot present, bone fractured underneath injury no. 2 which was crossed shaped and under injury no. (3) bone was also fractured which was also cross- shaped. Subdural haemotoma was present underneath the injury nos. (2) and (3) above. Brain was congested. There was no fracture underneath the injury no. (4) above. (2) Death was due to the above noted injuries causing haemorrhage and shock leading to death. (3) Injuries were caused by hard and blunt substance. (4) Time elapsed since death within twenty four hours." The postmortem report is Exhibit-3. This doctor clearly opined, in evidence, that the injuries found by him were not possible by any sharp instrument. 13 Therefore, there are discrepancies in the evidences of P.Ws 6 and 7 insofar as injuries are concerned. This also has been highlighted in the arguments of the learned counsel for the appellants who submitted that P.W. 6 was the first doctor who had seen the injuries soon after the occurrence hence he was in the best position to say about the nature of the wounds whereas P.W. 7 had seen the injuries after removing the stitches. 14. I find reasons to doubt the accuracy of findings by P.W. 6. An injury by a hard and blunt substance may also cause split of skin but a keen observer could say as to whether the injury was caused by hard and blunt substance or by a sharp weapon. P.W. 6 found injuries upon Sharfuddin, as stated by him in cross- examination, to have been caused by spade or by sharp edge of a weapon. P.W. 6 found injuries upon Sharfuddin, as stated by him in cross- examination, to have been caused by spade or by sharp edge of a weapon. At one point the doctor admitted (paragraph 10) that he had not furnished any data that might show that those injuries were grievous in nature. He said that bhala was a sharp penetrating weapon and only if the blow was inflicted with much force, that could cause penetrating wound otherwise it could cause only sharp cut injury. But the injury found on the arm of the deceased, which same witness said was caused by bhala, was 1/2" x 1/4" x 1/4". It will depend upon the sharpness of the point of a bhala like weapon as to whether it could penetrate only if the injury was inflicted with much force. This witness said (paragraph 13) that he wrote the age of the injury of Hanufa Khatoon after enquiring from her attendant. Obviously this witness did not make any attempt to form his own opinion after perusal of the wound, its colour etc. but formed his opinion upon the information taken from the attendant. This witness also admitted (paragraph 6), while describing injury of Ali Ahmad, that no bone was found cut on the head of Ali Ahmad but he did not mention that fact in the injury report. Here he admitted that he had omitted to write certain facts regarding injuries in his injury report, but he obviously has deposed, after years, also depending on his memory. His evidence, read together, do not place all his findings in good light. On other hand, P.W. 7 had examined the injuries after removal of the stitches and then formed a definite opinion. He also found, in injury nos. 2 and 3, crossed shaped fractures of the bone. In clear opinion of the witness, the injuries were caused by hard and blunt substance. 15. On perusal of the evidence of the two doctors, so far injuries upon Sharfuddin are concerned, the evidence of RW. 7 appears to be more reliable. Sri G.R Jaiswal, learned Additional Public Prosecutor, has place reliance upon a decision of the Supreme Court in the case of Piara Singh V/s. State of Punjab, (1977)4 S.C.C. 452 . In that case the trial court had disbelieved the prosecution case mainly on the ground that the ocular evidence was inconsistent with the medical evidence. Sri G.R Jaiswal, learned Additional Public Prosecutor, has place reliance upon a decision of the Supreme Court in the case of Piara Singh V/s. State of Punjab, (1977)4 S.C.C. 452 . In that case the trial court had disbelieved the prosecution case mainly on the ground that the ocular evidence was inconsistent with the medical evidence. One of the doctor had opined that injury no. 11 could not have been caused by firearm. However, sufficient numbers of injuries being incised and punctured wounds were fully supported by another doctor, not contradicted by the other doctor. Out of the two doctors one categorically stated that injury no. 11 could have been caused by a rifle. Their Lordships, agreeing with the observations made by Calcutta High Court which convicted the appellants, held that where opinion of a medical witness is contradicted by another medical witness both of whom were equally competent to form an opinion, the opinion of that expert should be accepted which supported the direct evidence in the case. 16. In that view of the matter, and what I have already discussed, I have no hesitation in accepting the evidence of P.W. 7 who had conducted the autopsy and had opined that those injuries could not have been caused by a sharp instrument. 17. Now, I will sift the evidence of witnesses to find out the extent of support to the prosecution allegations against appellants. 18. It is admitted that from the accused side a counter case was also instituted and it was taken from P.W. 6, who had examined the injured from the prosecution side, in cross-examination, that on the same day he had examined Noor Mohammad on police requisition and had found two sharp cut injuries, one at the right ear lobe and the other, over head, which both were simple. One argument from the defence side was that there was injury upon Noor Mohammad also, by sharp cutting weapon, causing of which had been denied by the prosecution side hence the prosecution side should be held not to have come with clean hands. It is now well settled that it is not every injury on the accused side that has to be explained by the prosecution, particularly if the injuries are minor injuries. From evidence it is also clear that none of the appellants were armed at that time. It is now well settled that it is not every injury on the accused side that has to be explained by the prosecution, particularly if the injuries are minor injuries. From evidence it is also clear that none of the appellants were armed at that time. Noor Mohammad assaulted with the spade given by Sharfuddin and other two appellants are said to have brought out bhala and lathi, respectively, from their house. Therefore, it can hardly be said that there was common intention on the part of all the three to cause the death of Sharfuddin, and injury to Ali Ahmad and mother of the deceased. Insofar as mother of the deceased is concerned, she appears to have suffered a minor injury on the lower back, simple in nature, by hard and blunt substance, vice evidence of P.W. 6. In any case Hanufan Khattoon, the victim, has not been produced as a witness, hence vital evidence on the record about her injury is missing. 19. In the aforesaid circumstance it will appear that the appellants would be responsible for the acts indulged into by them individually. 20. About appellants Safi Ahmad and Ahmad Mian the evidence has already been discussed in the preceding paragraphs. The informant, as already seen, was a hearsay witness and had not seen the assault himself. The Investigating Officer supported that. In the first information report, about these two appellants he said that soon after the occurrence P.W. 2 had told him that after Sharfuddin and Ali Ahmad had already been assaulted Safi Ahmad by bhala and Ahmad Mian by lathi had also assaulted both of them. But in evidence he said about Ahmad Mian assaulting only Ali Ahmad, fracturing his arm by two Lathi blows. This evidence is, evidently, based on what he heard from P.W. 2 just after occurrence. P.W. 1 said that Safi Ahmad had assaulted Sharfuddin on his arms with bhala and Ahmad Mian assaulted the deceased with lathi. Then he said that Ali Ahmad was assaulted by spade and then Ahmad Mian assaulted him with lathi. According to him Hanufan Khatoon was assaulted by Noor Mohammad by lathi. P.W. 2 said that after the deceased and his brother were assaulted by Noor Mohammad, Safi assaulted the deceased on both arm with bhala and Ahmad Mian assaulted Ali Ahmad with lathi as also the mother of the deceased. According to him Hanufan Khatoon was assaulted by Noor Mohammad by lathi. P.W. 2 said that after the deceased and his brother were assaulted by Noor Mohammad, Safi assaulted the deceased on both arm with bhala and Ahmad Mian assaulted Ali Ahmad with lathi as also the mother of the deceased. P.W. 3, the injured himself, said that after he fell down he became unconscious. Naturally he could not say what was the role played by these two appellants thereafter. P.W. 4 said that after both the brothers fell down with blows of spade, these two appellants brought from their house bhala and lathi and Ahmad assaulted his grand mother with lathi. 21. Therefore, these all witnesses have given out different accounts of assault by these two appellants. P.W. 7 did not find any such injury upon the deceased on the arm (by bhala) as claimed by some of the witnesses. According to him, the injury on the right upper arm was lacerated injury which was caused by hard and blunt sub-. stance. 22. About injuries upon Ali Ahmad, there is only evidence of P.W. 6. P.W. 6 found a sharp cut wound on his head, and massive swelling on the left arm accompanied with fracture of shaft of humerous. Besides the first information report, P.Ws. 1, 2 and 5 have supported that Ahmad Mian had assaulted Ali Ahmad with lathi. Though P.W. 4 also said that Ahmad Mian had assaulted the grandmother also with lathi but P.W. 1 gave this credit to Noor Mohammad. 23. Therefore, assault by Safi Ahmad upon any one has not been proved by the witnesses nor that has found support from the evidence of P.W. 7. Therefore, in my opinion, appellant Safi Ahmad deserves benefit of doubt on this score. Insofar as Ahmad Mian is concerned, he is said to have assaulted Ali Ahmad with lathi which also finds support from the evidence of witnesses as well from the medical evidence given by P.W. 6 who found grievous injury on the arm of Ali Ahmad by hard and blunt weapon. No doubt, P.W. 1 said that Ahmad Mian also had assaulted the deceased, but did not say that he assaulted on head. P.W. 2 did not say in examination-in-chief that Ahmad Mian had assaulted her husband, but during cross-examination said that he had hit her husband on arm. No doubt, P.W. 1 said that Ahmad Mian also had assaulted the deceased, but did not say that he assaulted on head. P.W. 2 did not say in examination-in-chief that Ahmad Mian had assaulted her husband, but during cross-examination said that he had hit her husband on arm. There is only one injury on arm which could not have been caused both by Safi and Ahmad Mian. In view of other evidences, Ahmad Mian assaulting the deceased with lathi is not free from doubts. Therefore, he could have been held guilty under section 325 of the Code for causing grievous hurt to Ali Ahmad. 24. Coming to Noor Mohammad, the witnesses are unanimous that he had assaulted both Sharfuddin and Ali Ahmad with the back of spade on their head. An injury on the head was found by P.W. 6 upon Ali Ahmad but by a sharp cutting weapon. In the case of the deceased it has already been discussed as to how the finding of sharp cut injuries by P.W. 6 was not accepted, though his findings about the spots where injuries were caused are acceptable when read with evidence of P.W. 7. There is, therefore, no reason why the evidence of P.W. 6 about a sharp cut injury upon the head of Ali Ahmad should be given credence. Moreover, when there is sufficient and credible ocular evidence on record proving a particular mode of assault, then that will take precedence over some contradiction in the medical evidence. But it is obvious that P.W. 6 also had found an injury upon the portion of head of Ali Ahmad, bone deep, which he found to be grievous. 25. It was argued that though there was claim in the first information report that the assault was by spade on the head but in the evidence it has come that the assault was made by Noor Mohammad by the back of the spade. It is clear from the first information report that it was only claimed that the assault was made by the spade but it was not stated as to from which portion of the spade. Therefore, this cannot be treated as a contradiction. 26. It is clear from the first information report that it was only claimed that the assault was made by the spade but it was not stated as to from which portion of the spade. Therefore, this cannot be treated as a contradiction. 26. It is also submitted that as per first information report it was not claimed that more than one blow were given by Noor Mohammad upon the deceased on head, but the doctor, P.W. 7, had found as many as three injuries upon the head. 27. The witnesses neither had said as to how many blows were given by Noor Mohammad upon Sharfuddin nor that was taken in cross-examination, hence this point also cannot be treated as such contradiction which could cut at the root of prosecution case. It may also be borne in mind that the informant has given a hearsay account in the fardhayan, he not having himself seen the occurrence. On this point contradictions taken from previous statement also do not help the defence. For example, no such contradiction in the statement of P.W. 1 was got confirmed through P.W. 8, the Investigating Officer. About P.W. 2 though the Investigating Officer had admitted that she had not said that Noor Mohammad had assaulted on the head of the husband with back of the spade but he said that she had told that Noor Mohammad had assaulted with spade. From P.W. 3 it was taken as to whether he had told about assault by the back of spade but, as already stated, it is not a major point because if the witnesses told that the assault was made by spade, and it did not come in the evidence as to from which side, that would not be treated to be a contradiction. 28. Learned counsel for the appellants making alternative argument submitted that act of Noor Mohammad would come within the mischief of Section 304 Part II of the Code because, as per evidence, Noor Mohammad had no intention to commit any offence since it was he who had called Panchayati for mediation. He was without any weapon and was also a victim of assault as per the injury report. It was submitted that he at best had assaulted Sharfuddin and Ali Ahmad at the spur of the moment, without premeditation, in a sudden quarrel. He was without any weapon and was also a victim of assault as per the injury report. It was submitted that he at best had assaulted Sharfuddin and Ali Ahmad at the spur of the moment, without premeditation, in a sudden quarrel. However, it will appear from the evidence that there was no scope of any quarrel because Sharfuddin had given him spade asking him to demarcate the area, and while he was returning back, he was assaulted by Noor Mohammad. From doctors evidence it is clear that he had given more than one blow upon the head of the deceased as it has not been proved from evidence that Ahmad Mian, who had lathi in his hand, had also assaulted on the head of the deceased. The injuries on head were so severe that it caused two fractures and death of Sharfuddin. Therefore, I find that the appellant Noor Mohammad was rightly convicted under section 302 of the Penal Code. From the evidence including medical evidence it also stands proved that Noor Mohammad, having assaulted upon the head of Ali Ahmad, causing him grievous injury, was also guilty for the offence punishable under section 307 of the Code. 29. As already noted earlier, it was rightly argued by the learned counsel, appearing on behalf of the appellants that appellants Safi Ahmad and Ahmad Mian could not have been convicted for murder of Sharfuddin and for attempting to commit murder of Ali Ahmad with the help of Section 34 of the Code. There does not appear to be any meeting of the minds developed even at the spot to commit these two particular offences. As already held, Safi Ahmad deserves benefit of doubt, hence, entitled to acquittal. Ahmad Mian at best can be held guilty to have caused a grievous injury to Ali Ahmad in the arm. Had he any intention to commit murder of Ali Ahmad, he would not have contended himself by giving him a blow on his arm, causing fracture which injury alone can be ascribed to him. 30. As stated, I find that appellant Noor Mohammad can, and should have been, convicted under section 302 (for Sharfuddin) and under section 307 (for Ali Ahmad) instead of being convicted with the help of Section 34. 30. As stated, I find that appellant Noor Mohammad can, and should have been, convicted under section 302 (for Sharfuddin) and under section 307 (for Ali Ahmad) instead of being convicted with the help of Section 34. It appears that learned trial court framed charges against all under sections 302 and 307 read with Section 34 of the Code in view of the fact that Safi Ahmad and Ahmad Mian were also to be charged together. If the conviction of Noor Mohammad is converted to be one under sections 302 and 307 of the Code, that would not cause any prejudice to him, the entire evidence having been recorded in his presence or in the presence of his counsel and he already having been charged with the murder of Sharfuddin and for attempting to commit murder of Ali Ahmad though read with Section 34 of the Code. 31. One formal defence witness has also been examined who has proved the formal first information report and first information report of the counter-case. This, however was not even referred to in the arguments on behalf of the appellants. I also do not find that in the circumstances of the case, these documents would make any difference. 32. In the result, conviction of Noor Mohammad is converted into one under section 302 of the Code for causing murder of Sharfuddin, as also under section 307 of the Code for attempting to commit murder of Ali Ahmad. The sentences as awarded by the learned lower court for both the offences are upheld in case of Noor Mohammad, which would run concurrently. 33. Appellant Safi Ahmad is acquitted of the charges and the judgment so far it relates to his conviction is hereby set aside and he is also discharged of the liability of the bail bonds. Insofar as appellant Ahmad Mian is concerned, his convictions under section 302 read with Section 34 and under section 307 read with Section 34 of the Code are set aside but he is convicted under section 325 of the Code for causing grievous injury to Ali Ahmad and sentenced to rigorous imprisonment for three years. His bail bond is cancelled and he is ordered to be taken into custody to undergo rest of the sentence. His bail bond is cancelled and he is ordered to be taken into custody to undergo rest of the sentence. All the accused are acquitted of offence under section 323 of the Code, the injured not having been examined, and in view of the contradictions in the evidence already noticed on this account. The appeal, therefore, is allowed in part, as aforesaid. Chandra Mohan Prasad, J. 34 I agree.