VISHNU SAHAI, J. Four persons, namely Khem Karan, Arjun Lal, Vishun Dayal and Jagan Nath were charged by the Sessions Judge, Kheri for offences punishable under Section 302 read with 34 IPC. The learned Judge vide judgment and order dated 22-12-1080 passed in Sessions Trial No. 4214 of 1980 acquitted Jagan Nath for the said offence but convicted the other three thereunder and sentenced each of them to undergo imprisonment for life. Aggrieved by their conviction and sentence, Khem Karan, Arjun Lal and Vishun Dayal have preferred the present appeal. 2. Shortly stated, the prosecution case runs as under: Informant Gaya Din is son of the deceased Pyare Lal. At the time of the incident the informant Gaya Din PW-1, his father Pyare Lal, his mother Smt. Bhagwati, PW-9, his sister Smt. Lilawati, PW-10, acquitted accused Jagan Nath and the three appellants, namely, Khem Karan, Arjun Lal and Vishun Dayal were residing in village Rautapur within the limits of Police Station Mitauli, District Kheri. There was enmity between the appellants and the acquitted accused Jagan Nath, real brothers, inter se, on one hand and the deceased Pyare Lal on the other. On the date of the incident, i. e. 8th July, 1980, sometimes in the morning, while deceased Pyare Lal was affixing pegs in the corner of the road situate to the west of the grove of the appellants and the acquitted accused Jagan Nath, appellant Khem Karan asked him to uproot them. Pyare Lal replied that after the monsoons he would uproot them. On this Khem Karan told him that if he did not uproot them it would not be good. Saying this, Khem Karan went away. The same evening at about 6 p. m. , when the informant Gaya Din was inside his house and his father Pyare Lal was sitting on the Chabutara (raised platform) situate outside, appellants Khem Karan, Arjun Lal and Vishun Dayal armed with lathi and acquitted accused Jagan Nath armed with a Paina (cane) came. Khem Karan enquired from Pyare Lal whether he would uproot the pegs. Pyare Lal replied that he would uproot them 2 to 4 days after the monsoon. On this appellant Arjun said "yah SALA NETA AUR THEKEDAR BANTA HAI, AAJ SALE KO HI MARNA HAI. Khem Karan enquired from Pyare Lal whether he would uproot the pegs. Pyare Lal replied that he would uproot them 2 to 4 days after the monsoon. On this appellant Arjun said "yah SALA NETA AUR THEKEDAR BANTA HAI, AAJ SALE KO HI MARNA HAI. " Thereafter Khem Karan, Arjun Lal and Vishun Dayal with lathis and Jagan Nath with a cane started assaulting Pyare Lal who fell down as a consequence thereof. Thereafter the appellant Khem Karan inflicted a lathi blow on the head of Pyare Lal. Then the appellants and acquitted accused Jagan Nath ran away. Apart from the informant Gaya Din, this incident is said to have been seen by his mother Smt. Bhagwati PW-9 and his sister Smt. Lilawati. PW-10 and Ram Saran, Moolchand, Kesari and Makhan, PWs- 2, 3, 4 and 5 respectively. Informant and others saw that there was some life left in Pyare Lal. They put him on a cot and brought him inside the house, where half an hour later he succumbed to his injuries. Thereafter the informant called the Chaukidar and along with him and his grand-father Gajadhar went to police station Mitauli where he lodged his FIR. 3. Evidence of constable clerk Arvind Kishore Dixit shows that on 8-7-1980 (on the date of the incident) at 9. 45 p. m. Gaya Daya Din came to Police Station Mitauli and on his dictation he recorded his FIR Exhibit Ka-1. 4. Autopsy on the corpse of Pyare Lal was conducted on 10-7-1980 at 3 p. m. by Dr. Jagdish Prasad Saxena, PW-6 who found on it the following anti mortem injuries: (1) Vertical Abraded contusion 12 cm x 2 cm on right side head 10 c. m. above right ear. (2) Contusion 11 c. m. x 4 c. m. on back of left fore- arm. 4 c. m. above left wrist. (3) Contusion 9 c. m. x 4 c. m. on back of right fore-arm, 2 c. m. below elbow joint. (4) Contusion 14 c. m. x 4 c. m. on lower part of right neck, 4 c. m. below sub-mandibular boarder. (5) Vertical contusion 30 c. m. x 7 c. m. on back of left chest and abdomen, 8-1/2 c. m. outer to midline. (6) Contusion 2 c. m. x 1 c. m. on outer aspect of right thigh, 11 c. m. above right knee. On internal examination Dr. (5) Vertical contusion 30 c. m. x 7 c. m. on back of left chest and abdomen, 8-1/2 c. m. outer to midline. (6) Contusion 2 c. m. x 1 c. m. on outer aspect of right thigh, 11 c. m. above right knee. On internal examination Dr. Saxena found liner fracture 8 cms. long of right parietal and frontal bones under Injury No. 1. The cause of death spelt in the post-mortem report and in the deposition of the autopsy surgeon in the trial Court was coma on account of head injury. 5. The bulk of the investigation was done by Inspector Incharge of P. S. Mitauli Vidhya Ram, PW-11. His evidence shows: On 8-7-1980 FIR was lodged in his presence. He thereafter left for the place of the incident which he reached at 10. 30 p. m. He found the corpse of deceased Pyare Lal beneath the shed of informant Gaya Din. He thereafter performed the inquest on it and sent it for autopsy. Next morning, he recorded statements of Gaya Din, Ram Swaroop, Moolchandra, Makhan, Kesari, Smt. Lilawati, Smt. Bhagwati and others and prepared site plan on the pointing of the informant. After completing investigation, on 23-7- 1989 he submitted charge-sheet. 6. The case was committed to the Court of Sessions in the usual manner where the appellants and the acquitted accused Jagan Nath were charged for the offence punishable under Section 302 read with 34 IPC. They pleaded not guilty to the charge and claimed to be tried. Their defence was of denial. During trial, the prosecution examined eleven witnesses. Seven of them, namely Gayadin, Ram Swaroop, Moolchand, Kesari, Makhan, Smt. Bhagwati and Smt. Lilawati, PWs. 1, 2, 3, 4, 5, 9 and 10 were examined as eye-witnesses, but apart from the informant Gaya Din PW-1, Smt. Bhagwati, PW-9 and Smt. Lilawati, PW-10 the rest turned hostile. The learned Trial Judge believed the evidence of Gayadin, Smt. Bhagwati and Smt. Lilawati vis-a- vis the appellants and convicted and sentenced them in the manner stated in paragraph 1, but acquitted co-accused Jagan Nath because the evidence of the informant Gayadin showed that he was standing at some distance with a cane in his hand and did not assault the deceased. Hence this appeal. 7. We have heard learned Counsel for the parties and have perused the entire evidence on record. Hence this appeal. 7. We have heard learned Counsel for the parties and have perused the entire evidence on record. In our view, this appeal deserves to be partly allowed. 8. So far as the involvement of the appellants in the incident is concerned, the same in our view, it is squarely established by the credible ocular account furnished by Gayadin, Smt. Bhagwati and Smt. Lilawati, son, wife and daughter respectively of the deceased. Since in para 2 of this judgment we have set out the prosecution story on the basis of recitals contained in the examination-in-chief, we do not wish to burden our judgment by reiterating all the details. In short, their evidence shows: At the time of the incident, Smt. Bhagwati and Smt. Lilawati were inside the house. The informant was also there. Deceased Pyare Lal was sitting on the Chabutara (raised platform) outside the house. At that juncture the three appellants, namely, Khem Karam, Arjun Lal and Vishun Dayal armed with lathis and acquitted accused Jagan Nath armed with a cane came there. Khem Karan asked Pyare Lal whether he would uproot the pegs, which he had fixed in the morning. Pyare Lal replied that he would do so 2-4 days after the monsoon. On that co-accused Arjun Lal instigated that Pyare Lal be killed and thereafter the three appellants with their lathis and acquitted accused Jagan Nath with a cane assaulted Pyare Lal who fell down as a result thereof. Then appellant Khem Karan inflicted a lathi blow on the head of Pyare Lal. Thereafter the appellants and acquitted accused Jagan Nath ran away and they took Pyare Lal, who was precariously injured, inside the house where he died half an hour later. Then Gayadin proceeded to Police Station Mitauli and lodged his FIR. 9. We have gone through the evidence of Gayadin, Smt. Bhagwati and Smt. Lilawati and make no bones in observing that we find it to be credible. In the first place, it should be borne in mind that since the incident took place outside their house, they were natural witnesses of the same. 9. We have gone through the evidence of Gayadin, Smt. Bhagwati and Smt. Lilawati and make no bones in observing that we find it to be credible. In the first place, it should be borne in mind that since the incident took place outside their house, they were natural witnesses of the same. Secondly, the manner of assault as furnished by them, namely, that the three appellants assaulted deceased Pyare Lal with lathis and acquitted accused Jagan Nath assaulted him with a cane is corroborated by the evidence of the autopsy surgeon who found six blunt weapon injuries on the person of the deceased. In the earlier part of the judgment we have reproduced the anti mortem injuries found by the autopsy surgeon on the corpse of the deceased and their perusal shows that they are typical blunt weapon injuries. It is significant to point out that although all these eye- witnesses were subjected to extensive cross- examination, but nothing could be elicited therefrom which could impair their credibility. 10. In our view, the evidence of the aforesaid eye-witnesses inspires confidence and has been rightly believed by the learned trial Judge. 11. Assurance to the ocular account is also forthcoming by the circumstance that the FIR of the incident was lodged by Gayadin within 2 hours and 45 minutes of the incident taking place. We have seen that the incident took place on 8-7-1989 at 7 p. m. and the FIR was lodged by Gayadin on the same day at 9. 45 p. m. at Police Station Mitauli. The chick FIR shows that distance between the place of the incident and the police station is 2 miles. In our view, the FIR has been lodged very promptly. We say so because apart from the fact that it was lodged within 2 hours and 45 minutes of the incident taking place, the evidence of the informant shows that as a consequence of the assault made by the appellants and the acquitted accused Jagan Nath deceased Pyare Lal was precariously injured and he succumbed to his injuries about half an hour later. In these circumstances, the evidence of the informant that when Pyare Lal had succumbed to his injuries, he proceeded to lodge the F. I. R. is natural. In these circumstances, the evidence of the informant that when Pyare Lal had succumbed to his injuries, he proceeded to lodge the F. I. R. is natural. In such a factual matrix, at the cost of repetition, we sound like to point out that the F. I. R. was lodged with promptitude. It is significant to point out that in this prompt F. I. R. of the incident, the basic features of the prosecution case including the time and place of the incident, the motive for the incident, name of the appellants and acquitted accused Jagannath, the weapons which were used by them, the names of the informant and some eye witnesses are mentioned. It is true that in the F. I. R. names of Smt. Bhagtwati and Smt. Lilawati are not mentioned, but this omission may be because since the F. I. R. was lodged immediately after the father of the informant had succumbed to his injuries, he may not be having the necessary mental composure to lodge a perfect F. I. R. In these circumstances, in our opinion, the ommission in the F. I. R. of the names of Smt. Bhagwati and Smt. Lilawati, who are inmates of the house and outside whose house the incident took place, is inconsequential. 12. For the aforesaid reasons, in our view, the learned Trial Judge acted correctly in holding that the involvement of the appellants in the incident was established. 13. The only question, which remains, is whether the learned trial Judge acted correctly in convicting the appellants for the offence under Section 302 I. P. C. read with 34 I. P. C. Our answer to it is in the negative. In our view, the common intention of the appellants, who were armed with lathis, was not to cause the death of the deceased but to only inflict grievous hurt on him in terms of Section 325 I. P. C. and appellant Khem Karan, who inflicted the solitary fatal injury on the head of the deceased at the end of the incident, exceeded it. Consequently, in our view, the learned trial Judge should have convicted appellants Arjun Lal and Vishun Dayal for the offence punishable under Section 325 I. P. C. read with 34 I. P. C. and appellant Khem Karan for that punishable under Section 304 Part-II I. P. C. We say this for the following reasons: Firstly, the motive in the instant case was paltry and it cannot be inferred from it that the appellants shared the common intention to kill the deceased. We have seen that the cause for the incident was that the same morning, while deceased Pyare Lal was fixing pegs on the corner of the road which was situated near the grove of the appellants and acquitted appellant Jagannath, appellant Khem Karan objected. Appellant Khem Karan asked Pyare Lal to uproot them, but he did not do so. The same evening at about 6 p. m. the appellants armed with lathis and Jagannath armed with a cane came to the house of Pyare Lal and appellant Khem Karan made the same request and when it was not acceeded to, the incident took place. In our view, the nature of the motive for the incident does not warrant the interference that the appellants had any intention to commit murder of the deceased. Secondly, the appellants did not straightaway start assaulting the deceased, but only assaulted him when he did not accede to their wish of straightaway removing the pegs. Thirdly, we are not prepared to accept the statement of the informant that prior to the appellants and co-accused Jagannath launching an assault on the deceased Pyare Lal, appellant Arjun instigated that he be killed. The reason for this is simple. We have seen that the incident was also witnessed by Smt. Bhagwati, P. W. 9 and Smt. Lilawati, P. W. 10, who initially were inside the house and when the deceased was assaulted on the Chabutara, which was situated in front of the house, they came out and saw the same. A perusal of the site plan shows that the incident took place right in front of the house. In such a situation, in our view, had appellant Arjun instigated, Smt. Bhagwati and Smt. Lilawati would have also heard it. However, they do not depose that prior to the deceased being assaulted, appellant Arjun had instigated that he be killed. A perusal of the site plan shows that the incident took place right in front of the house. In such a situation, in our view, had appellant Arjun instigated, Smt. Bhagwati and Smt. Lilawati would have also heard it. However, they do not depose that prior to the deceased being assaulted, appellant Arjun had instigated that he be killed. In our judgment, this circumstance coupled with the fact that experience shows that the evidence of exhortation is manufactured to compound the gravity of the offence, renders it unsafe for us to believe that prior to the assault on the deceased, appellant Arjun instigated that he be killed. Fourthly, the anti mortem injuries suffered by the deceased, apart from injury No. 1 beneath which the doctor found linear fracture over right parietal and frontal bones (which was caused by appellant Khem Karan at the end of the incident) were all simple in nature. Fifthly, it is significant to point out that the evidence of the eye witnesses shows that after appellant Khem Karan had inflicted the fatal lathi injury on the head of the deceased, the other two appellants, namely, Arjun Lal and Vishun Dayal did not assault the deceased. Had they done so, it could have been said that on the spot they developed alongwith appellant Khem Karan, the common intention to commit the offence committed by appellant Khem Karan. Sixthly, had the common intention of the appellants been to kill the deceased, there was nothing to prevent the appellants from achieving it because the evidence of the eye witnesses shows that neither the informant nor Smt. Bhagwati nor Smt. Lilawati had any weapon or caused any hindrance which thwarted them from accomplishing it. 14. Sixthly, had the common intention of the appellants been to kill the deceased, there was nothing to prevent the appellants from achieving it because the evidence of the eye witnesses shows that neither the informant nor Smt. Bhagwati nor Smt. Lilawati had any weapon or caused any hindrance which thwarted them from accomplishing it. 14. Bearing in mind the overall circumstances, in our view, it would be reasonable to infer that when the appellants armed with lathis came to the house of the deceased they had the common intention to cause grievous hurt to the deceased in terms of Section 325 I. P. C. but when at the end of the incident appellant Khem Karan inflicted a lathi blow on the head of the deceased, beneath which the doctor found linear fracture, 8 c. m. long over right parietal and frontal bones and which proved to be fatal, he exceeded the common intention and it would be reasonable to infer that he caused an injury with the knowledge that he was likely to cause death in of the deceased in terms of clause thirdly of Section 299 I. P. C. , the breach of which is punishable under Section 304 Part II I. P. C. It is pertinent to mention that right from the F. I. R. the prosecution case, is that Khem Karan assaulted the deceased on head, in our view appellants Arjun Lal and Vishun Dayal are only guilty of an offence punishable unless, Section 325 read with 34 IPC. 15. This leaves us with the question of sentence. So far as appellants Arjun Lal and Vishun Dayal are concerned, we find that they have been in jail as under trials and convict for 4 months and 21 days; the incident took place nearly 22-1/2 years ago; and there is nothing to indicate that they had any criminal antecedents. In our view, the ends of justice would be squarely satisfied if their substantive sentence for the aforesaid offence is reduced to the period already undergone by them and they are directed to pay a fine of Rs. 5,000 (Rupees five thousand) each and to suffer three years S. I. in its default. In our view, the ends of justice would be squarely satisfied if their substantive sentence for the aforesaid offence is reduced to the period already undergone by them and they are directed to pay a fine of Rs. 5,000 (Rupees five thousand) each and to suffer three years S. I. in its default. So far as appellant Khem Karan is concerned, in our view, considering the overall circumstances and bearing in mind the fact that he inflicted the fatal injury on the head of the deceased, a sentence of five years R. I. would meet the ends of justice. 16. In the result, this appeal is partly allowed. We acquit the three appellants, namely, Khem Karan, Arjun Lal and Vishun Dayal of the offence punishable under Section 302 I. P. C. read with 34 I. P. C. and set aside their conviction and sentence thereunder. Instead we find appellants Arjun Lal and Vishun Dayal guilty for the offence punishable under Section 325 I. P. C. read with 34 I. P. C. and sentenced them to the period already undergone and direct each one of them to pay a fine of Rs. 5,000/- (Rupees five thousand) and in default to suffer a sentence of 3 years S. I. They shall deposit the fine within a period of four months in the trial Court failing which the defaulting appellant/appellants, as the case may be, shall undergo the sentence in default of payment of fine. The fine deposited in entirety shall be paid as compensation to the legal heir/heirs of the deceased, as the case may be. As soon as it is deposited, the trial Court shall inform the legal heir/heirs of the deceased, as the case may be, about it and pay the same. In case appellants Arjun Lal and Vishun Dayal do not pay the fine within the stipulated period, they shall be taken into custody to serve out the sentence in default of payment of fine and in case they pay the same their bail bonds shall stand cancelled and sureties discharged. We find appellant Khem Karan guilty for the offence punishable under Section 304 Part-II and sentence him to undergo five years R. I. He is on bail and shall be taken into custody forthwith to serve out the sentence. We find appellant Khem Karan guilty for the offence punishable under Section 304 Part-II and sentence him to undergo five years R. I. He is on bail and shall be taken into custody forthwith to serve out the sentence. It would be open to the trial Court to accept the fine on production of a certified copy of this judgment, which in case an application is made by the learned counsel for the appellants, shall be issued within two weeks from today. Appeal partly allowed. .