VISHNU SAHAI, J. Six persons namely, Gautam, Onkar, Ramchandra, Ram Adhare, Ghurpatri and Harihar were charged by the IV Additional Sessions Judge, Basti, in Sessions Trial No. 400 of 1978, for the offence punishable under Section 323 read with 149 I. P. C. In addition: Gautam was charged for the offence punishable under Sections 302 I. P. C. and 148 I. P. C. and Onkar, Ramchandra, Ram Adhare, Ghurpatri and Harihar for that punishable under Sections 302 read with 149 I. P. C. and 147 I. P. C. Vide judgment and order dated 21-12-1981, the learned Judge convicted and sentenced them in the manner stated hereinafter: Gautam: (i) Under Section 302 I. P. C. to imprisonment for life; (ii) Under Section 323 I. P. C. read with 149 I. P. C. to six months R. I. ; and (iii) Under Section 148 I. P. C. to six months R. I. Onkar, Ram Chandra, Ram Adhare, Ghurpatri Pandey and Harihar: (i) Under Section 302 I. P. C. read with 149 I. P. C. to imprisonment for life; (ii) Under Section 323/149 I. P. C. to six months R. I. ; and (iii) Under Section 147 I. P. C. to undergo six months R. I. The sentences of the aforesaid six persons on all the counts were directed to run concurrently. 2. Aggrieved by their convictions and sentences Gautam, Onkar, Ramchandra, Ram Adhare, Ghurpatri Pandey and Harihar have preferred the present appeal. 3. Shortly stated, the prosecution case runs as under: The informant Virendra Prasad Pandey, P. W. 1 is the son of deceased Badri Prasad. At the time of the incident, the informant, deceased Badri Prasad, Dubri Nau P. W. 2, Ram Das P. W. 3 and Mahendra Nath Pandey P. W. 4 were residing in village Naghara within the limits of Police Station Ghanghata, District Basti. At the said time, the six appellants namely, Gautam, Onkar, Ramchandra, Ram Adhare, Ghurpatri and Harihar were residing in Village Baridiha within the limits of Police Station Ghanghata, District Basti. Appellants Ram Chandra and Onkar are the sons of appellant Gautam. Appellant Ghurpatri is the son of appellant Harihar. Appellant Harihar, Ram Adhare and Gautam are said to be friends. There was enmity between appellant Gautam and the deceased Badri Prasad. Appellants Ram Chandra and Onkar are the sons of appellant Gautam. Appellant Ghurpatri is the son of appellant Harihar. Appellant Harihar, Ram Adhare and Gautam are said to be friends. There was enmity between appellant Gautam and the deceased Badri Prasad. Gautam wanted the deceased Badri Prasad to give false evidence against Mahendra Nath Pandey P. W. 4 in a case of dacoity instituted upon a complaint, but the deceased had declined. This irked Gautam. During the course of the distribution of land Dubri Nau P. W. 2 got some land belonging to the Gram Samaj, which was situated by the side of the chak of appellant Gautam. Dubri had sown wheat in the aforesaid land. On the date of the incident i. e. on 28-3-1978. Duburi had harvested the wheat grown in the chak situated by the side of the appellant Gautams land and brought it to his house. On the said date at about 12 noon Gautam alongwith his sons Onkar and Ramchandra and Ram Adhare, Ghurpatri Pandey and Harihar came at the door of Dubri and started abusing him. The deceased Badri, who was passing by in front of Dubris house came and asked Gautam and others not to abuse Badri. An exchange of abuses took place between both the sides. In the meantime, appellant Harihar instigated that Badri be killed. Thereupon, Gautam inflicted a spear blow on Badris chest. Hearing the cries of Dubri, the informant, Ram Das P. W. 3, Mahendra Nath P. W. 4, Parmatma and some others came. Thereafter, appellants other than Gautam assaulted Mahendra Nath Pandey and Parmatma with lathis and bricks. In order to save themselves, Mahendra Nath Pandey and others hurled bricks resulting in appellants Gautam and Harihar sustaining injuries. Thereafter, the appellants ran away. As a consequence of the assault Badri fell down dead. Thereafter, the informant scribed the F. I. R. of the incident and alongwith Mahendranath Pandey and Parmatma proceeded to Police Station Ghanghata, District Basti, where he lodged it. 4. The evidence of Sajiwan Shukla P. W. 6 shows that on 28-3-1978, he was posted as Station-Officer-in- charge of Police Station Ghanghata. On the said date at 2. Thereafter, the informant scribed the F. I. R. of the incident and alongwith Mahendranath Pandey and Parmatma proceeded to Police Station Ghanghata, District Basti, where he lodged it. 4. The evidence of Sajiwan Shukla P. W. 6 shows that on 28-3-1978, he was posted as Station-Officer-in- charge of Police Station Ghanghata. On the said date at 2. 15 p. m. , Constable-Moharrir Om Prakash Shukla, with whose writing and signatures he was familiar and whom he had seen writing and signing registered a case on the basis of the F. I. R. lodged by Virendra Prasad Pandey P. W. 1. It is pertinent to mention that in the said F. I. R. , the six appellants are named and on its basis a case under Sections 147/148/336/307/302/324/323/149 I. P. C. was registered against them. A perusal of the chik-F. I. R. shows that the distance between the place of the incident and the Police Station was ten miles. 5. The evidence of S. O. Ram Sajiwan Shukla P. W. 6 further shows : After the F. I. R. was lodged, he recorded the statements of Mahendra Nath Pandey and Pramatma at the Police Station itself and sent them for medical examination. At about 5 p. m. , he left for the place of incident. He seized the corpse of the deceased and performed the inquest on it and prepared photo-lash and challan-lash etc. He prepared the site-plan (Ext. Ka 14 ). From the place of the incident he seized plain and blood stained earth and pieces of bricks under recovery memos. In front of the house of Badri he found a stack of harvested wheat. He searched for the appellants, but they could not be found. The same day, he recorded the statement of the informant. After his transfer, the investigation was taken over by S. I. Ram Achhibar Mishra, who after its completion submitted the charge-sheet against the appellants. 6. Going backwards, the injuries of Parmatma and Mahendra Nath were medically examined on 23-8- 1978, at 5. 00 p. m. and 5. 15 p. m. respectively, by Dr. V. N. Singh P. W. 8 who found on the person of the former the following injuries: (i) Lacerated wound 6 cm x 0. 5 cm x skin deep present on the posterior part of right ear just behind the root of upper part of right ear. 00 p. m. and 5. 15 p. m. respectively, by Dr. V. N. Singh P. W. 8 who found on the person of the former the following injuries: (i) Lacerated wound 6 cm x 0. 5 cm x skin deep present on the posterior part of right ear just behind the root of upper part of right ear. (ii) Abrasion 2 cm x 11 cm present on the upper part of right shoulder 3 cm behind lateral end of right clavicle. (iii) Abrasion 2 cm x 1 cm present on the right side of back 7 cm below the anterior angle of right scapula. On the person of Mahendra Nath, Dr. Singh found a lacerated wound 6 cm x 0. 5 cm x bone deep on the mandibular end of right forehead just on and above the medial end of right eye brow. In the opinion of Dr. Singh, the injuries of the said persons were simple in nature; attributable to hard and blunt object; and afresh. 7. Once again going backwards, the autopsy on the corpse of the deceased Badri Prasad was conducted on 29-3-1978, at 3. 30 p. m. , by Dr. M. Z. Hasan, P. W. 5 who found on it a punctured wound 3. 5 cm x 1. 3 cm x abdominal cavity deep, situated in upper part of abdomen, just below the sternum bone of chest 19 cm below supra sternal notch and 19 cm above umbilicus. On internal examination, the autopsy surgeon found peritoneum ruptured and left lobe of liver punctured through and through. In his statement in the trial Court, Dr. Hasan stated that the said injury was sufficient to in the ordinary course of nature to cause death and the deceased could have died on account of it, on 28-3-1978, at 12 noon. He also stated therein that it could be caused by ballam (spear ). 8. It is significant to mention that appellants Gautam and Harihar, who had also sustained injuries during the course of the incident were medically examined on 30-3-1978, at 5. 00 p. m. and 5. 15 p. m. respectively, by Dr. Harivansh Shukla D. W. 2. On the person of Gautam, Dr. Shukla found the injuries enumerated hereinafter: (i) Lacerated wound 2 cm x 0. 5 cm x 0. 1 cm on the left side of the head 7 cm above the left ear. 00 p. m. and 5. 15 p. m. respectively, by Dr. Harivansh Shukla D. W. 2. On the person of Gautam, Dr. Shukla found the injuries enumerated hereinafter: (i) Lacerated wound 2 cm x 0. 5 cm x 0. 1 cm on the left side of the head 7 cm above the left ear. (ii) Multiple contusion of Bluish Black colour in an area of 11 cm x 6 cm on the back of left thigh 14 cm above the left knee joint. (iii) Multiple contusion of Bluish Black colour in an area of 6 cm x 3 cm on the back of right arm just above the girth of elbow joint. On the person of Harihar, Dr. Shukla found the following injuries: (i) Lacerated wound 3 cm x 1 cm x 0. 5 cm on the left side of fore-head 1 cm above the left eye brow. (ii) Lacerated wound 2 cm x 0. 5 cm x 0. 2 cm on the left side of head 3 cm above the left ear. (iii) Abrasion 1 cm x 0. 2 cm on the back of head on left side 10 cm above the root of the neck. In the opinion of Dr. Shukla the injuries of the said persons were simple in nature; attributable to a hard and blunt object; and were about two days old. In his statement in the trial Court, Dr. Shukla stated that the injuries of the said victims could have been caused by hard and blunt weapon like lathi and bricks on 28-3-1978, at about 12 noon. 9. The case was committed to the Court of Sessions in the usual manner, where after being charged on counts mentioned in paragraph-1, the appellants were put up for trial. During trial, in all, the prosecution examined eight witnesses. Four of them namely, Virendra Prasad Pandey, Dubri Nau, Ram Das and Mahendra Nath P. Ws. 1, 2, 3 and 4 respectively were examined as eye- witnesses. In defence, three witnesses namely, Moti Lal, Dr. Harivansh Shukla and Laxmi Narain Lal D. Ws. 1, 2 and 3 respectively were examined. In their statements under Section 313 Cr. P. C. appellants Gautam and Harihar accepted their presence on the place of the incident, but the remaining appellants pleaded that they were not present on the place of the incident and have been falsely implicated. Harivansh Shukla and Laxmi Narain Lal D. Ws. 1, 2 and 3 respectively were examined. In their statements under Section 313 Cr. P. C. appellants Gautam and Harihar accepted their presence on the place of the incident, but the remaining appellants pleaded that they were not present on the place of the incident and have been falsely implicated. Appellant Gautam in his statement under Section 313 Cr. P. C. stated that plot No. 35 was a part of plot No. 34. He was in possession of the said plots and had sown wheat on them. On the date of the incident Dubri P. W. 2 was harvesting the said wheat and Badri, Mahendra Nath, Virendra, Parmatma and Ram Das armed with lathies were standing at the mend of the field. He asked Dubri not to harvest the wheat crop. Thereupon, all of them started assaulting him. Hearing his cries, persons from the village, including appellant Harihar came there and lathies and bricks were hurled by both the sides. He was also assaulted by lathi. He (Gautam) also sustained injuries. In his statement under Section 313 Cr. P. C. Harihar stated that Dubri was harvesting wheat in Gautams field. When Gautam asked him not to do so, Mahendra, Parmatma, Ram Das, Dubri, Badri and others started assaulting Gautam with lathies. The learned Judge did not accept the version of the incident unfurled by appellants Gautam and Harihar in their statements under Section 313 Cr. P. C. and accepted the ocular account furnished by Virendra Prasad Pandey, Dubri, Ram Das and Mahendra Nath and convicted and sentenced the appellants in the manner stated in paragraph-1. Hence this appeal. 10. We have heard Mr. P. N. Mishra, for the appellant and Mr. D. R. Azad, Addl. Public Prosecutor, for the State of U. P. and have also perused: - the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution, the statements of the appellants recorded under Section 313 Cr. P. C. the evidence of the defence witnesses; and the impugned judgment. In our view, this appeal deserves to be partly allowed. 11. Mr. P. N. Mishra strenuously urged before us that this is a case where it is per se manifest that appellants Onkar, Ram Chandra, Ram Adhare and Ghurpatri have been falsely implicated. He urged that their defence of denial appears to be plausible. In our view, this appeal deserves to be partly allowed. 11. Mr. P. N. Mishra strenuously urged before us that this is a case where it is per se manifest that appellants Onkar, Ram Chandra, Ram Adhare and Ghurpatri have been falsely implicated. He urged that their defence of denial appears to be plausible. He contended that according to the eye-witnesses, they alongwith the appellant Harihar belaboured the two injured witnesses namely, Parmatma (not examined) and Mahendra Nath P. W. 4 with lathies. Mr. Mishra urged that the medical evidence belies this. He pointed out that on the person of Parmatma Dr. V. N. Singh found one lacerated wound and two abrasions. He further pointed out that Dr. V. N. Singh P. W. 8 stated in his cross-examination that the abrasions could be caused by a fall. Mr. Mishra next invited our attention to the injuries suffered by Mahendra Nath. He pointed out that Dr. V. N. Singh found on his person a solitary lacerated wound. The short and long of Mr. Mishras submission is that in between them Mahendra Nath and Parmatma sustained two typical lathi injuries. He contended that had they been assaulted by lathies by five persons (as is the prosecution use) they would have sustained more typical lathi injuries i. e. lacerated wounds, contusions, traumatic swellings etc. Mr. Mishra contended that appellant Harihar who is said to be armed with lathi and admitted his presence could have caused the two lacerated wounds distributed between Mahendra Nath and Parmatma. 12. To substantiate his submission Mr. Mishra placed before us the decision of the Apex Court rendered in the case of Bhimrao, Anna Ingawale and Others (appellants) v. State of Maharashtra (respondent), 1980 Supreme Court (Cri) 888. Its perusal shows that in all six persons participated in the incident. Three of them admitted their presence and three denied it. A perusal of paragraph-31 of the said decision would show that the Apex Court was of the view that since the eye- witnesses were highly interested and had scant regard for truth and the injuries on the prosecution side could have been caused by the three persons who admitted their presence, the three accused who denied their presence were entitled to acquittal. 13. We have reflected over Mr. 13. We have reflected over Mr. Mishras submission and in our view, the ratio laid down by the Apex Court in 1980 SCC (Crl) page 888 would be applicable in this case. If the two abrasions sustained by Parmatma, which in the opinion of Dr. V. N. Singh could be caused by a fall are excluded, then it is manifest that between the two injured i. e. Parmatma and Mahendra Nath there were only two typical blunt weapon injuries (a lacerated wound on each of them) and Harihar who admitted his presence on the place of the incident and according to the eye-witnesses was armed with a lathi could have caused them. 14. It should be borne in mind that the eye-witnesses are interested/inimical and had reason to falsely implicate appellants Onkar, Ram Chandra, Ram Adhare and Ghurpatri. In this connection, it is pertinent to mention that Virendra Prasad Pandey P. W. 1 is the son of the deceased Badri. The brother of Dubri Nau P. W. 2 was the barber of the deceased Badri. Mahendra Nath P. W. 4 in his examination in chief admitted that Gautam had filed a criminal complaint under Section 395 I. P. C. against him and from prior to the incident a civil case was pending between him and Gautam. He has also admitted therein that Ram Adhare (appellant) had filed a civil case against him. It is pertinent to mention that suggestion of enmity, during cross-examination was also given to the fourth eye-witness Ram Das, but he pleaded ignorance. At any rate he does not appear to be a truthful witness. Learned counsel for the appellant invited our attention to paragraph-5 of the statement of Ram Das, who stated therein that no theft had taken place at the house of appellant Ram Adhare. He also invited our attention to paragraph-7 of the statement of Dubri, who admitted therein that a theft had taken place at Ram Adhares house. In such a situation, in our view, learned counsel for the appellant is justified in canvassing that Ram Das is not a wholly truthful witness. It is be borne in mind that since appellants Ram Chandra and Onkar are sons of appellant Gautam, appellant Ghurpatri is the son of appellant. In such a situation, in our view, learned counsel for the appellant is justified in canvassing that Ram Das is not a wholly truthful witness. It is be borne in mind that since appellants Ram Chandra and Onkar are sons of appellant Gautam, appellant Ghurpatri is the son of appellant. Harihar, who is a friend of appellant Gautam and there was a civil litigation between appellant Ram Adhare and Mahendra Nath P. W. 4, the probability of appellants Ram Chandra, Onkar, Ghurpatri and Ram Adhare being falsely implicated cannot be ruled out. 15. Since we are going to acquit Onkar, Ramchandra, Ram Adhare, Ghurpatri the following consequences would follow: (a) The number of accused who participated in the incident would come down from six to two; (b) The convictions of appellants Harihar and Gautam cannot be sustained for the offence punishable under Section 323/149 I. P. C. and that of appellant Harihar for the offence punishable under Section 302/149 I. P. C. because for the application of Section 149 I. P. C. the essential pre-requisite is an unlawful assembly and Section 141 I. P. C. makes it manifest that for membership of an unlawful assembly there should be at least five persons; (c) The conviction of appellant Harihar for the offence punishable under Section 147 I. P. C. and that of appellant Gautam for that punishable under Section 148 I. P. C. cannot be sustained because the pre- requisite for conviction thereunder is the commission of offence of rioting and Section 146 I. P. C. makes it manifest that for the offence of rioting there should be an unlawful assembly i. e. an assembly of five or more persons. 16. The question is whether appellants Gautam and Harihar can be convicted for the offence punishable under Section 323/34 I. P. C. and Harihar for that punishable under Section 302/34 I. P. C. Our answer to it is in the affirmative. We are not oblivious to the fact that they were not charged for the said offence but in our view, no prejudice would be caused to them by convicting them thereunder. We are not oblivious to the fact that they were not charged for the said offence but in our view, no prejudice would be caused to them by convicting them thereunder. The evidence of the eye-witnesses shows that in furtherance of the common intention of appellant Gautam, appellant Harihar assaulted Parmatma and Mahendra Nath, therefore, both of them would be guilty for the offence punishable under Section 323/34 I. P. C. The evidence of the eye- witnesses also shows that in furtherance of common intention of appellant Harihar, who instigated that the deceased be killed, appellant Gautam inflicted the fatal spear blow on the deceased. Hence the offence punishable under Section 302/34 I. P. C. would be made out against him. It should be borne in mind that an error or ommission in charge only becomes material if prejudice is caused to accused [see para-44 of AIR 1956 SC 116 , Willie (William) Slaney (appellant) v. State of Madhya Pradesh (respondent)]. The Supreme Court in para-9 of the case of B. N. Srikantiah, Siddiah and another (appellants) v. State of Mysore (respondent), reported in AIR 1958 SC 672 , has held that even if there is no charge is for the offence punishable under Section 302/34 I. P. C. and the charge is for the offence under Section 302/149 I. P. C. the accused can still be convicted for the former offence. Para-9 of the said decision reads thus: "the omission to mention Section 34 of the Indian Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof. The charge was that the appellants and others were members of an unlawful assembly, the common object of which was to murder the deceased. Although there is a difference in common object and common intention, they both deal "with combination of persons who become punishable as sharers in an offence" and a charge under Section 149, Indian Penal Code is no impediment to a conviction by the application of Section 34 if the evidence discloses the commission of the offence in furtherance of the common intention of all. " 17. In the result, this appeal is partly allowed. We acquit appellants Onkar, Ram Chander, Ram Adhare and Ghurpatri on all the counts and set aside their convictions and sentences thereunder. They are on bail. They need not surrender. " 17. In the result, this appeal is partly allowed. We acquit appellants Onkar, Ram Chander, Ram Adhare and Ghurpatri on all the counts and set aside their convictions and sentences thereunder. They are on bail. They need not surrender. Their bail-bonds stand cancelled and sureties discharged. We acquit appellant Gautam for the offence punishable under Section 148 I. P. C. and set aside his conviction and sentence thereunder. We confirm his conviction for the offence punishable under Section 302 I. P. C. and the sentence of imprisonment for life awarded to him thereunder. We convert his conviction for the offence punishable under Section 323 read with 149 I. P. C. to 323 read with 34 I. P. C. but we maintain his sentence of six months R. I. We acquit appellant Harihar for the offence punishable under Section 147 I. P. C. We alter his conviction from one under Section 302/149 I. P. C. to that under Section 302/34 I. P. C. but we maintain the sentence of imprisonment for life awarded to him. We convert his conviction from one under Section 323/149 to one under Section 323/34 I. P. C. but we maintain the sentence of six months R. I. awarded to him. Appellants Gautam and Harihar are on bail and shall be taken into custody forthwith to serve out their sentences. Appeal partly allowed. .