K. N. OJHA, J. This appeal has been preferred against order of conviction and sentence dated 10-4-1981, passed by Learned IIIrd Additional Sessions Judge, Varanasi, in S. T. No. 55 of 1980, State v. Ram Lal and 2 others, by which appellants Ram Lal, Shyam Ji and Shyam Lal are convicted under Section 302 read with Section 34 IPC and are sentenced to undergo rigorous imprisonment for life. 2. Accused Ram Lal and Shyam Ji are real brothers and Shyam Lal is their cousin. They are residents of village Khajoorgaon, Police Station Moghal Sarai, District Varanasi, (now Chandauli ). The occurrence is said to have taken place on 27-12-1979 at 2. 30 p. m. in village Khajoorgaon, Police Station Moghal Sarai, District Varanasi, FIR of which was lodged by Sanjay son of the deceased Satya Narain Singh on 27-12- 1979 at 4. 00 p. m. The Police Station Moghal Sarai is at a distance of about 5 Km. from the place of the occurrence. Lateron, Satya Narain Singh died. After investigation, the accused/appellants were charge- sheeted and tried, resulting in impugned conviction. 3. According to the prosecution story, the victim Satya Narain Singh and the accused persons are the residents of the same village Khajoorgaon and live in the same vicinity. A criminal case under Section 107 of the Cr. P. C. was contested between the parties in the year 1964. Lateron, one Ram Ji of the family of accused persons was killed in 1969 and the family members of the victim were prosecuted. Deceased Satya Narain Singh was making Pairvi for the accused in the case, who were convicted with life sentence, but their sentence was reduced in appeal. One day before 27-12-1979, hot talks had taken place between the deceased Satya Narain Singh and accused Shyam Lal and the latter had threatened the deceased Satya Narain Singh with dire consequences. On 27-12-1979 at about 2. 30 p. m. , when Satya Narain Singh alongwith his son Sanjay and his brother Shri Dhar was going from Kamlapur (Khajoorgaon) to Chandasi and when they reached at the distance of about 200 steps from the ruins of village Khajoorgaon, all the three appellants armed with lathis, came on the way and on the exhortation of accused Shyam Lal, rest two accused, namely, Ram Lal and Shyam Ji, caused injuries with lathis to Satya Narain Singh. Witnesses Budhu and Daya Ram ran to the spot and saw the occurrence. Accused ran away. Satya Narain Singh was brought to S. S. P. G. Hospital (Kabir Chaura), Varanasi, where his injuries were examined. The condition being serious, he was taken to B. H. U. Hospital, where he was declared dead by the Doctor. 4. Post-mortem examination was conducted on the body of Satya Narain Singh, aged about 40 years, in the mortuary of B. H. U. Hospital, Varanasi on 28-12-1979 at 2. 30 p. m. and the following ante-mortem injuries were found on the body: (1) Lacerated wound 5 cm. x 2 cm. x skull deep. About 8-1/2 cm. above left ear. (2) Multiple contusions in an area of 12-1/2 cm. x 12- 1/2 cm. right side of the forehead and chest. (3) Multiple contusions in an area of 10 cm. x 5 cm. infront of neck. 5. The death of Satya Narain Singh did take place due to Coma and head injuries. 6. The prosecution examined P. W. 1 Shri Dhar, eye-witness of the occurrence, P. W. 2 Sanjay Kumar, who is the son of deceased Satya Narain Singh and eye-witness of the occurrence and they supported the prosecution story. P. W. 3 Police Sub-Inspector Sheo Dhari Singh, prepared inquest report and P. W. 4 Mangala Dubey, constable carried the dead-body to the mortury for the post- mortem examination. P. W. 5 Dr. Kripa Shankar of SSPG Hospital, Varanasi, conducted the autopsy on 28-12-1979 at 2. 30 p. m. and found the above mentioned ante-mortem injuries on the dead-body and prepared the post-mortem examination report. P. W. 6 is Keshari Prasad Tripathi, who investigated the case P. W. 7 Head Constable Ram Singh prepared Chik report and registered the case. P. W. 8 is Dr. R. B. Singh, who was posted at S. S. P. Hospital, Varanasi and had prepared the injury report of the victim in the hospital, from where he was sent to the B. H. U. Hospital, Varanasi. 7. The accused did not examine any witness in defence. Their case is that they did not cause injuries and due to enmity, they have been falsely implicated in this case. The defence case is that the deceased Satya Narain Singh and his brother Shri Dhar have land in village Khajoorgaon and Chandasi and the land has been usurped through the litigation. Their case is that they did not cause injuries and due to enmity, they have been falsely implicated in this case. The defence case is that the deceased Satya Narain Singh and his brother Shri Dhar have land in village Khajoorgaon and Chandasi and the land has been usurped through the litigation. A Panchayat had taken place between the accused persons and Satya Narain Singh and Shri Dhar in respect of the land and the case was contested upto the Court of Commissioner. Satya Narain Singh, deceased had contested the case against Mangaru, Ram Karan, Tigari etc. Satya Narain Singh was killed at some unknown place and the accused have been falsely implicated in the case. 8. Learned Sessions Judge believed the statements of the witnesses, P. W. 1 Shri Dhar and P. W. 2 Sanjay Kumar, who have stated that when they were going Chandasi, appellant met them on the way and on the exhortation of Shyam Lal, Ram Lal and Shyam Ji thrashed lathi blows on the head and other vital part of the body of Satya Narain Singh, which resulted into his death. 9. We have heard the learned Counsel for the appellants, learned A. G. A. and have gone through the record with case. 10. It may be pointed out that the parties live in the same village Khajoorgaon. Their houses are adjacent to each other. The case under Section 107 Cr. P. C. and Section 302 IPC were contested between the parties. Victim Satya Narain Singh was doing pairvi for the accused persons who were facing trial for the murder of Ramji, a person of the family of the appellants. Thus, enmity was existing between the parties at the time of the occurrence and there was motive for commission of the crime. It is broad day light occurrence, which did take place on 22-12-1979 at 2. 30 p. m. and the FIR has been promptly lodged on the same day at 4. 00 p. m. at the police station Kotwali, which is at a distance of about 5 Km. from the place of occurrence. Thus, the FIR does not suffer from any deliberation or consultation. The FIR has been lodged by Sanjay son of deceased, who is aged about 14 years, who was going with his father from his village to Chandasi, where the deceased had oil expeller etc. and carried on his business. from the place of occurrence. Thus, the FIR does not suffer from any deliberation or consultation. The FIR has been lodged by Sanjay son of deceased, who is aged about 14 years, who was going with his father from his village to Chandasi, where the deceased had oil expeller etc. and carried on his business. The school was not open and therefore, Sanjay, son of the victim alongwith Shri Dhar, brother of the victim, were going to village Chandasi and, thus, the presence of Sanjay and Shri Dhar cannot be doubted at the scene of occurrence. They have been named in the FIR and if Sanjay would not have been present, the FIR would not have been so promptly lodged at the police station. The victim was first carried to the S. S. P. G. Hospital, Varanasi, where the injuries were examined, but his condition being serious, he was referred to the B. H. U. Hospital, Varanasi, where he was declared dead. Three injuries were found on vital part of the body. They are in the nature of lacerated and contused wounds. Thus, the post-mortem examination report corroborates the statements of the eye-witnesses Shri Dhar and Sanjay. In the opinion of the Doctor, the death of Satya Narain Singh, aged about 40 years, had taken place from the ante-mortem injuries and it cannot be believed that some unknown persons caused the injuries to Satya Narain Singh and still, the FIR has been lodged against the appellants. If any other person had caused the injuries due to enmity, he would not have been spared from being named in the FIR. The FIR,. post- mortem examination report, inquest report etc. support the prosecution story and there is nothing unnatural or improbable in the statements of P. W. 1 Shri Dhar and P. W. 2 Sanjay, who are brother and son of the deceased respectively. We find no material contradiction in the statements of these witnesses and, therefore, the view expressed by the learned Addl. Sessions Judge is subscribed by us excepting in the case of role of Shyam Lal. 11. We find no material contradiction in the statements of these witnesses and, therefore, the view expressed by the learned Addl. Sessions Judge is subscribed by us excepting in the case of role of Shyam Lal. 11. According to the prosecution case, a dispute had taken place between Shyam Lal and Satya Narain (deceased) two days before i. e. on 25-12-1979 and accused Shyam Lal had threatened with dire consequences to the victim Satya Narain Singh, who had told this fact to his brother Shri Dhar, but it was not taken seriously. Shri Dhar stated that the accused persons usually made such utterances. It is said that thereafter on 27-12-1979 at about 2. 30 p. m. , when Shri Dhar, Sanjay and Satya Narain Singh were going from Khajoorgaon to Chandasi, the appellants armed with lathis, met them on their way and on the exhortation of Shyam Lal, the injuries have been caused to Satya Narain Singh. If Shyam Lal was also having lathi, in the normal course, he would have also used it on Satya Narain Singh or on the other two persons, who are of his family, namely, Shri Dhar and Sanjay. Besides it, when threatening was already extended two days before the occurrence and the appellants had come on the way after making preparations to cause injuries to Satya Narain Singh, it does not appear natural that there was any necessity of exhortation being made to cause injuries to Satya Narain Singh. It is not only the hot talk, which had taken place on 25-12-1979, which gave birth to the crime. The enmity was already existing. The cases under Section 107 Cr. P. C. and 302 IPC were already contested between the parties and, thus, there was motive to cause injuries. In the circumstances, if Shyam Lal was having lathi with him but he did not sue it and he made only exhortation, is such a circumstance, which makes the presence of Shyam Lal doubtful. Therefore, the circumstances do not show that Shyam Lal must have participated in the commission of the crime of causing injuries to Satya Narain Singh, resulting in his death. Therefore, while there is sufficient evidence to bring guilt home to the accused against the appellants Ram Lal and Shyam Ji, the evidence cannot be taken to be sufficient against the appellant Shyam Lal. 12. Therefore, while there is sufficient evidence to bring guilt home to the accused against the appellants Ram Lal and Shyam Ji, the evidence cannot be taken to be sufficient against the appellant Shyam Lal. 12. In view of above discussion, in our opinion, the charge under Section 302 read with Section 34 IPC is proved against the appellants Ram Lal and Shyam Ji, and they have rightly been convicted and sentenced to undergo rigorous imprisonment for life by the learned III Addl. Sessions Judge, Varanasi and the order of conviction and sentence, passed against them, deserves to be confirmed, but the order of conviction and sentence against accused Shyam Lal deserves to be set aside. 13. The appeal is partly allowed and the order of conviction and sentence dated 10-4-1981 passed by the learned III Addl. Sessions Judge, Varanasi, in respect of accused Shyam Lal, is set-aside and he is acquitted. But the conviction of the appellants Ram Lal and Shyam Ji under Section 302 read with Section 34 IPC and their sentence of life imprisonment are affirmed. Accused appellants Ram Lal and Shyam Ji be taken into custody and sent to Jail. 14. Let the copy of this judgment alongwith the record be sent down to the trial Court for compliance and for reporting the same to this Court within two months. Appeal partly allowed. .