M. C. JAIN, J. There are six appellants, namely, Darshan Yadav, Raj Deo Yadav, Nihor Yadav, Kishore, Siya Ram and Lalji. Out of them, Nihor Yadav and Kisore Yadav are real brothers and Siya Ram is son of Raj Deo Yadav appellant No. 2. The judgment assailed in this appeal is one dated 29-9-1981 passed by Sri Prem Singh, the then Sessions Judge, Ghazipur in ST No. 119 of 1979 in which they along with one another Deo Raj were tried out Deo Raj was acquitted. 2. The incident took place on 10-11-1978 at about 6 p. m. in village Kanhaipur, Police Station Saidpur, District Ghazipur. The FIR was lodged by injured Brij Bhushan PW 1, father of the deceased Ram Badan at the concerned police station, the same day at 8. 30 p. m. The distance of the police station from the place of occurrence was three miles. There was said to be another injured for the felony, namely, Subhash PW 2 who is the nephew of the deceased. Both the parties are the residents of the same village. The background of the incident was that on the fateful day at about 5. 30 p. m. Brij Bhushan was bringing back his bullocks after ploughing his field. Suddenly, one of the bullocks sneaked into the field of Darshan and started grazing his crop. Darshan, who was scraping grass in his field, started hurling abuses on Brij Bhushan. Although the latter admitted that the bullock had suddenly strayed into his field, but Darshan was not satisfied and threatened to settle the score in the village. Any way, Darshan came to his house with his bullocks and sat on a cot in the sehan of his pahi (a sort of house) after giving fodder to them. On another cot Kailash Kamla and Subhash were sitting. At about 6 p. m. all the accused appellants came to the Pahi (a sort of house) of Brij Bhushan. Raj Deo and Lal Ji held spears while others had lathis. They started creating ruckus there. Brij Bhushan raised alarm attracting Rajendra, Ram Awadh and Managaru. His son Ram Badan was also sitting at the Pahi. The witnesses, who had come, tried to intervene. In the meantime, Raj Deo accused-appellant gave spear blow to Ram Badan who fell down on the ground. When Brij Bhushan stepped forward to get up his son. Brij Bhushan raised alarm attracting Rajendra, Ram Awadh and Managaru. His son Ram Badan was also sitting at the Pahi. The witnesses, who had come, tried to intervene. In the meantime, Raj Deo accused-appellant gave spear blow to Ram Badan who fell down on the ground. When Brij Bhushan stepped forward to get up his son. Lalji accused gave spear blow at his buttock. Subhash stepped forward to the rescue of Brij Bhushan, but he, too, was attacked by Nihor with a lathi. The accused then retreated. Ram Badan was being carried to the police station on a cot but he succumbed to his injury in the way. Brij Bhushan got the report of the incident scribed by Raghu Nath and reached the police station with the dead body of his son where the report was lodged. The case was registered and investigation followed. 3. The post-mortem over the dead body of the deceased Ram Badan was conducted by Dr. Ram Lal Rai PW 4 on 11-11-1978 at 4 p. m. The following ante mortem injury was found on his person: Punctured wound 4 cm. x 2. 5 cm x abdominal cavity deep on the left side of abdomen 1 cm. away from the umbilicus directed from forward to backward. Part of small intestines protruding through the wound. 4. The death had occurred due to shock and haemorrhage on account of ante mortem injury. 5. Brij Bhushan was medically examined on 10-11-1987 at about 9. 15 p. m. by Dr. B. P. Gupta PW 8. The following injury was found on his person: Incised wound 1-1/2" x 1/2" x muscle deep on right buttock near anus. 6. The injury was grievous, having been caused by sharp edged weapon and it was fresh. 7. Subhash was medically examined on 11-11-1978 on 3. 45 p. m. by Dr. K. P. Sinha PW 9. The following injury was found on his person: Bruise with swelling 5 cm. x 1. 5 cm and 13 cm x 9 cm on the left arm, 10 cm from the left elbow joint. 8. The injury was simple and produced by some blunt weapon which was about 20-30 hours old. 9. While defending themselves the appellants put up a counter version that bullocks of the Brij Bhushan were grazing ripe paddy crop of Darshan. 5 cm and 13 cm x 9 cm on the left arm, 10 cm from the left elbow joint. 8. The injury was simple and produced by some blunt weapon which was about 20-30 hours old. 9. While defending themselves the appellants put up a counter version that bullocks of the Brij Bhushan were grazing ripe paddy crop of Darshan. When Darshan wanted to take the bullocks to the cattle pond he was stopped by Brij Bhushan in front of his Pahi. Nihor and Kishore who were cutting their crop nearby came to intervene. When Raj Deo insisted that he could not be stopped from taking the bullocks to the cattle pond. Ram Badan attacked him with spear and Raghu Nath and Ram Awadh attacked him with lathis. One Nathu nephew of Raj Deo reached the spot and caused injuries to Ram Badan and Brij Bhushan in exercise of right of private defence. The injury of Subhash was seriously disputed by the defence side. 10. The prosecution, in all, examined 9 witnesses. Out of them the eye-witnesses were injured Brij Bhushan PW 1 (informant), Subhash PW 2 (injured) and Ram Awadh PW 3. 11. The appellants also led defence evidence and examined one Dr. Surjit Singh as DW 1 who proved the injury report of Raj Deo who was medically examined by him in District Jail Hospital, Ghazipur on 13-11- 1978 at 5. 25 p. m. The following injuries were noticed on his person: (1) A bluish black contusion of 1-1/4" x 1/2" on the back of outer aspect of lower one-third of right fore- arm. (2) Abrasion with scab 2" x 1/6" on the outer aspect of the front of left side of chest. (3) Abrasion with scab 1" x 1/6" on middle of back of left upper arm. 12. The injuries were simple and caused by blunt object and were estimated to be three days only. 13. On consideration of the evidence and material on record, the case of the prosecution commended itself to the learned trial Judge, who passed the impugned judgment. 14. We have heard Sri A. B. L. Gaur, learned Counsel for the appellants in support of the appeal and learned AGA from the side of the State in opposition of the same. We would deal with the arguments advanced before us in that discussion which follows hereinafter. 15. 14. We have heard Sri A. B. L. Gaur, learned Counsel for the appellants in support of the appeal and learned AGA from the side of the State in opposition of the same. We would deal with the arguments advanced before us in that discussion which follows hereinafter. 15. It has first been argued by the learned Counsel for the appellants that the FIR is ante-timed. He sought to support this argument by two factors. It has first been pointed out that post- mortem over the dead body of the deceased was conduced by Dr. R. L. Rai, PW 4 on 11-11-1978 at 4. 00 p. m. and he stated in his cross-examination that along with papers received by him with the dead body on 11-11-1978 at 2. 00 p. m. he had not received copy of the chik FIR. Learned Counsel for the appellants reasoned that the FIR was not in existence till then. Second submission is that SI R. K. Lal PW 6 had prepared the Panchayatnama on 11-11- 1978 in the morning at Saidpur Police Station and he stated that he had not scribed the names of the accused in the Panchayatnama as he was not aware of the same, the reason being that the copy of the FIR was not with him at the time of the preparation of the Panchayatnama. The learned Counsel for the appellants also urged that the FIR came into existence much later on 11-11- 1978 after the Investigating Officer, Umesh Chandra Mishra, SO PW 7 had returned from the spot. 16. The reasoning suggested by the learned Counsel for the appellants to back the argument of the FIR being ante-timed does not commend itself for acceptance. The reasons may be stated. As the Station Officer had left the Police Station for the place of occurrence on 10-11-1978 after the lodging of the FIR he must have taken the copy of the FIR with him. This being so, it could neither be available with SI R. K. Lal PW 6, who prepared the Panchayatnama nor could be sent to the doctor along with the dead body of the deceased. It is significant to point out that though the names of the accused are not noted in the Panchayatnama, but the date and time of lodging of the FIR is very much there as 10-11-1978, 8. It is significant to point out that though the names of the accused are not noted in the Panchayatnama, but the date and time of lodging of the FIR is very much there as 10-11-1978, 8. 30 p. m. meaning thereby that the FIR had been lodged on the said date and time at the police station. There is yet another fact which completely demolishes the contention of the FIR being ante-timed. It has come in the testimony of the Investigating Officer Umesh Chandra Mishra PW 7 that special report of the case had been sent to the higher authorities on 10-11-1978 itself at 8. 50 p. m. The argument that the FIR came into existence after the Investigating Officer returned from the spot on 11-11-1978 is self- defeating. Had it been so, it would have ordinarily been recited in the FIR that Subhash was also injured of the felony. This fact is actually not at all there in the FIR. It is eloquent of the fact that the FIR is spontaneous and had actually been lodged at the police station on 10-11-1978 at 8. 30 p. m. by Brij Bhushan PW 1 (injured) as is the case of the prosecution. 17. The second argument of the learned Counsel for the appellants is that actually the incident had taken place in Rasta when Darshan accused was taking bullock of Brij Bhushan to cattle pond as is the case of the defence. The basis of this argument is that the Investigating Officer did not find any blood at the spot, which according to the prosecution, was the Pahi of Brij Bhushan. The learned Counsel for the appellants urged that the Investigating Officer did not show in the site plan that he had found blood at the spot. In the site plan, it was at point b in the south east of the Pahi of Brij Bhushan Yadav that he and Ram Badan (deceased) received injuries at the hands of the accused. It is a little north of the Rasta. The statement of the Investigating Officer has to be viewed logically and not in a pedantic manner. It is there in his statement that he had taken in possession blood-stained and simple earth from the spot. It is a little north of the Rasta. The statement of the Investigating Officer has to be viewed logically and not in a pedantic manner. It is there in his statement that he had taken in possession blood-stained and simple earth from the spot. It being so, there is no room for the argument that the Investigating Officer did not find any blood at the spot which is the core place of the incident. It is noted that place b as shown in the site plan is near the cattle trough and Mahua tree existing in the Sehan of Brij Bhushan. Moreover, the contention that the incident took place in the Rasta is not acceptable for another reason also. It has to be kept in mind that the deceased Ram Badan had received spear injury and Brij Bhushan PW 1 had also received injury of such weapon. If it were so that the incident occurred when Darshan was driving the bullock of Brij Bhushan to the cattle pond immediately after it had strayed into his field to eat crop, then there could hardly be any question of his being armed with spear or any body else from his side to be armed with such weapon. On wholesome consideration, we reject the argument that the place of incident as alleged by the prosecution is doubtful or that the incident actually took place in Rasta when Darshan was driving the bullock of Brij Bhushan right from his field to the cattle pond. 18. The third argument of the learned Counsel for the appellants is that the prosecution has not explained the injury of the accused appellant Raj Deo and it remained completely silent on this point. Our attention has been drawn to his injury report reproduced earlier in this judgment. He was examined in District Jail, Ghazipur on 13-11-1978 at 5. 25 p. m. by Dr. K. M. P. Yadav. 19. The injuries were simple and were reported to have been caused by blunt weapon, duration of which has been shown as three days. We have been taken through the statement of Dr. Surjit Singh DW 1 who was successor of Dr. K. M. P. Yadav in District Jail Hospital and who proved this injury report. 20. We have considered this aspect of the matter. The defence case is that the injuries Nos. We have been taken through the statement of Dr. Surjit Singh DW 1 who was successor of Dr. K. M. P. Yadav in District Jail Hospital and who proved this injury report. 20. We have considered this aspect of the matter. The defence case is that the injuries Nos. 2 and 3 (2 Abrasion with scab 2" x 1/6" on the outer aspect of the front of left side of chest and 3 abrasion with scab of 1" x 1/6 " on middle of the back left upper arm) were caused by spear injury No. 1 (A black contusion of 1- 1/4" x 1/2" on the back of outer aspect of lower one-third of right fore-arm) was caused by lathi. It is also defence case that spear had been wielded by Ram Badan deceased and lathis by Raghu Nath and Ram Awadh. True, the prosecution denied to have caused any injury to any of the accused. It is however, pertinent to find that Raj Deo did not get his injuries examined on the very date of the occurrence or the following day. He surrendered in Court on 13-11-1978 and his injuries were examined on that date in jail. Doctor who examined him was not produced. His successor Dr. Surjit Singh DW 1 proved the injury report by way of secondary evidence. Dr. Surjit Singh DW 1 firmly stated that injuries Nos. 2 and 3 could not have been caused by one spear blow. It is apparent by bare look on the injury report also, because injury No. 2 was on the left side of the chest and injury No. 3 was located on the middle of the back of fore-arm. However, the Doctor was positive that these injuries were superficial in nature. Indeed, two persons, namely, Ram Awadh and Raghu Nath allegedly wielded lathis which could not cause a single blunt object injury (injury No. 1 ). The law is well settled that the prosecution cannot be required to explain the injuries of the accused when they are of superficial nature. The burden of prosecution to explain the injuries of the accused arises when they are not superficial and are shown to have been caused at the time of the incident. The law is well settled that the prosecution cannot be required to explain the injuries of the accused when they are of superficial nature. The burden of prosecution to explain the injuries of the accused arises when they are not superficial and are shown to have been caused at the time of the incident. In the present case, the injuries of Raj Deo are of very superficial nature and they could not have been received by him in the same incident as has been sought to be projected by the defence. There is no explanation for this either as to why the injuries of Raj Deo were not examined on the same day or the following day. The delay in this behalf itself renders such injuries to be doubtful. As stated by the Doctor, they could have been caused by a friendly hand in an attempt to create a false defence in this serious case of murder. It may also be stated as passing reference that no FIR had been lodged from the side of the accused. All aspects considered, we are of the view that prosecution was not at all obliged to explain very superficial injuries of Raj Deo. The appellants cannot again any point on this score. 21. Another argument of the learned Counsel for the appellants is that there is no mention in the FIR that Subhash PW 2 was also injured of the incident who had received injuries at the spot at the hands of the accused appellants and as such it should be taken that the prosecution developed its case after the lodging of the FIR. This contention of the learned Counsel for the appellants, in our opinion, is not without force. The FIR is the earliest version of the prosecution which came through the injured Brij Bhushan PW 1 himself (father of the deceased) and the grand-father of Subhash PW 2. There is not even a whisper in the FIR that Subhash was also the injured of the incident or that he was even present at the spot at the Pahi where the incident took place. His injury, too, was examined the following day on 11-11- 1978 at 3. 45 p. m. and the injury was a single bruise with swelling as mentioned earlier. His injury, too, was examined the following day on 11-11- 1978 at 3. 45 p. m. and the injury was a single bruise with swelling as mentioned earlier. It appears to us that the learned trial Judge lightly brushed aside the argument of the defence in this behalf by an observation that Subhash was not there in the company of the injured Brij Bhushan and since the FIR was scribed soon after the death of Ram Badan it was just a chance that Brij Bhushan missed to mention this fact. As regards Subhash having not been taken to the police station and for his medical examination at the time of the lodging of the FIR learned trial Judge thought that there was nobody at the house of Brij Bhushan and Subhash was left their as his second son Raghu Nath (father of Subhash) was accompanying him with Ram Awadh to the police station. Subhash PW 2 was the own family member of Brij Bhushan and in ordinary and natural course, after the incident Brij Bhushan and Raghu Nath would have taken care to see as to who are the persons of his family who had received injuries in the incident, before proceeding to the police station. It is somewhat queer that Brij Bhushan and Subhashs father Raghu Nath both were oblivious about the factum of Subhash being the injured of the incident and missing it from the FIR which was the first version of the prosecution. 22. It is further to be noted that Subhash was a lad of 12 years only. There could hardly, be any occasion for a body of such a tender age to intervene in the scuffle as is the case of the prosecution. It is also not acceptable that Subhash was left at the house as there was none else to be there-after Raghunath, Ram Awadh (son of Brij Bhushan) and informant Brij Bhushan proceeding to the police station. The reason is that it has come in the statement of Subhash PW 2 that his brother Kailash is four or five years elder to him and he was present at the time of the incident, but he did not come out. On cumulative consideration, it is unsafe to rely on the testimony of eye-witnesses including that of Subhash PW 2 that he (Subhash) received injury in the same incident. On cumulative consideration, it is unsafe to rely on the testimony of eye-witnesses including that of Subhash PW 2 that he (Subhash) received injury in the same incident. Indeed, the prosecution case has to be judged leaving aside this part, which cannot safely be accepted having regard to the attending circumstances. Needless to say, he Court has to separate the chaff from the grain and to act upon acceptable truth while rejecting the rest. In the case at hand, even ignoring the testimony of Subhash PW 2 and the statements of other two eye-witnesses insofar as he is concerned, it comes to surface on the judicial scrutiny of the evidence that the participation of the appellants Darshan, Raj Deo and Lal Ji as the participants in this crime is proved to the hilt. 23. The learned Counsel for the appellants urged that as per the testimony of Ram Awadh PW 3 only Raj Deo, Lal Ji and Nihore made assault and the rest of the appellants did not do anything. It has to be pointed out that as per the prosecution case Raj Deo had inflicted a single spear blow on Ram Badan (deceased) and Lal Ji had inflicted a single spear blow on Brij Bhushan PW 1. As stated a little above, we find it unsafe to accept this part of the prosecution story that Nihore had struck lathi blow on Subhash. However, the fact is very much there that Darshan was at the root of the matter. It was in his field that bullock of Brij Bhushan has strayed. In his statement also under Section 313 Cr. P. C. he rather admits his presence, though differently that he was driving the bullock of Brij Bhushan right from his field to the cattle pond when he was resisted in doing so by Ram Badan, Raghu Nath and Ram Awadh, Raj Deo also admits his presence. Rather he claimed himself to be an injured at the hands of Raghu Nath, Ram Awadh and Ram Badan (which we disbelieved ). Lal Ji had denied his presence at the spot, but there does not appear to be any reason of his false implication. There was no enmity between him and the prosecution side. We have just made reference to their statements under Section 313 Cr. Lal Ji had denied his presence at the spot, but there does not appear to be any reason of his false implication. There was no enmity between him and the prosecution side. We have just made reference to their statements under Section 313 Cr. PC but the point of the matter is that we do not see any reason to discard the testimony of Brij Bhushan PW 1 injured and Ram Awadh PW 3 that these three actively participated in this incident. Judicious appreciation of the evidence on record and the attending circumstances leads us to the conclusion that after Brij Bhushan reached his Pahi with his bullock, these three accused reached there with common intention to take revenge. Two of them, namely, Raj Deo and Lal Ji were armed with deadly weapons i. e. spears. All of three acted in concert and with previous meeting of minds. Two of them, namely, Raj Deo and Lal Ji in furtherance of their common intention with third one, namely, Darshan struck spear blows on Ram Badan (deceased) and Brij Bhushan PW 1. Ram Badan happened to die and Brij Bhushan received grievous injury on the vital part at his right buttock near anus. Therefore, these three are the real culprits. 24. The participation of three others, namely, Nihor, Kishore and Siya Ram is not free from doubt and criminal liability cannot be fastened on then simply because they happened to be close to the other three appellants. It may be stated that as per the own case of the prosecution they had raised shouts which attracted Rajendra, Ram Awadh and Managaru. The possibility cannot be ruled out that Nihore, Kishore and Siya Ram were mere passive spectators and were simply attracted on the shouts emanating from the spot. We are inclined to afford to these three, namely, Nihore, Kishore and Siya Ram the benefit of doubt. It should be stated here that as held by the Supreme Court in the case of Ram Singh v. State of Haryana, AIR 1973 2221, it is legal to record the conviction with the aid of Section 34 IPC when the charge is with aid of Section 149 IPC where the facts proved and the evidence adduced would have been the same, if the accused had been charged with the aid of Section 34 IPC. The same is the situation here. The same is the situation here. The failure to charge the appellants Raj Deo, Lal Ji and Darshan with the aid of Section 34 IPC has not resulted in prejudice to them. All of them committed this crime in furtherance of their common intention. Everybody is supposed know the natural and probable consequences of his act. They participated in the commission of this crime with common intention and with previous meeting of minds and all of them are liable for the consequences that have followed, viz. , murder of Ram Badan and the causing of the grievous injury to Brij Bhushan PW 1. 25. Resultantly, we partly allow this appeal. The conviction and sentence recorded against the appellants, Nihore, Kishore and Siya Ram are set aside and they are acquitted. 26. In place of conviction and sentences passed against appellants Darshan, Raj Deo and Lal Ji by the lower Court for various offences, each of them is convicted under Section 302 read with Section 34 IPC and under Section 326 read with Section 34 IPC. Each of them is sentenced to undergo life imprisonment under Section 302 read with Section 34 IPC and two years rigorous imprisonment under Section 326 read with Section 34 IPC. Both the sentences shall run concurrently. They are on bail and shall be arrested for being lodged in jail. 27. Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful compliance under intimation of this Court within two months from the date of receipt. Appeal partly allowed. .