M. C. JAIN, J. This appeal is directed against judgments and order dated 9-6-1980 passed by Sri S. S. Gupta, the then IV Additional Sessions Judge, Varanasi in S. T. No. 89 of 1979. Four appellants, namely, Banwari, Shiv Dhari, Shiv Nath and Prem Narain alias Prema (real brothers) preferred this appeal. Banwari has been convicted under Section 302 IPC and sentenced to life imprisonment. The remaining three have been convicted under Section 302 IPC read with Section 34 IPC and sentenced to life imprisonment. All of the four have further been convicted under Section 323 IPC read with Section 34 IPC and sentenced to six months rigorous imprisonment, under Section 324 IPC read with Section 34 IPC with sentence of 1-1/2 years rigorous imprisonment and under Section 325 IPC read with Section 34 IPC with sentence of three years rigorous imprisonment. All the sentences have been ordered to run concurrently. 2. The appellants No. 2 and 3 Shiv Dhari and Shiv Nath have died and the appeal has abated so far as they are concerned. 3. Broad features of the prosecution case may be noted. the complainant Barrister PW 1 and all the accused-appellant are resident of the same village. The deceased Tej Vansh alias Rengai was the real brother of the complainant barrister and Ram Raj Tewari PW 4 is his real uncle. The house of the accused-appellant is situated in the north of the house of the complainant. The appellants were on inimical terms with the members of the family of the complainant because the latter had socially bycotted the former though both the sides were Pattidars. The reasons was that their mother was Ahir by caste. Three days before the incident, the complaint Barrister was invited in a feast along with 10-12 Brahmins of his Jajman Mangaru. However, in that feast, he had not invited the appellants, and as such they became increasingly annoyed and angry. The present incident was the sequel of this background. On 23-4-1978 at about 9 p. m. the accused-appellants Banwari and Shiv Nath armed with spears and remaining two armed with lathi raided the house of the complainant Barrister PW 1 and started to chase his brother Tej Vansh (who was sitting at his door) to assault him. The present incident was the sequel of this background. On 23-4-1978 at about 9 p. m. the accused-appellants Banwari and Shiv Nath armed with spears and remaining two armed with lathi raided the house of the complainant Barrister PW 1 and started to chase his brother Tej Vansh (who was sitting at his door) to assault him. On the alarm raised by him, the complainant Barrister and his uncle Ram Raj PW 4 who were inside the house came out along with their lathis to save him. Near the Brahmsthan situated nearby, the accused-appellants started assaulting Ram Raj after surrounding him. Then the complainant Barrister and his brother Tej Vansh started defending him. The accused-appellants Shiv Dhari and Prem Narain alias Prema injured the complaint Barrister with lathis and the accused-appellant Banwari injured his brother Tej Vansh by the spear who died at the spot. Chhabi Nath PW 2, Megh Narain PW 3 and others of the village reached and witnessed the incident. The report was lodged by Barrister PW 1 on 24-4-1978 at about 5. 00 a. m. at the concerned police station, the distance being three miles. A case was registered and investigation followed. The injuries of Ram Raj and Barrister were medically examined by Dr. Tej Bahadur Rai PW 10 on 24-4-1978 at 8. 00 a. m. and 8. 30 a. m. respectively. 4. The following injuries were found on the person of Ram Raj: (1) Lacerated wound 1. 5 cm x 5 cm x bone deep on left side of head, 5 cm above from left ear. (2) Contusion with swelling 9 cm x 8 cm on right shoulder. (3) Contusion with swelling 5 cm x 3 cm on right upper arm, on outer surface, 3 cm below right shoulder. (4) Incised penetrating wound 2cm x 1 cm x 4. 5 cm deep on back, 26 cm below from left scapular region, directed downward. Blood oozing present. Kept under observation. Referred to S. S. P. G. Hospital, Varanasi for X-ray admission and technical opinion. (5) Contusion 8 cm x 2 cm on left side of back, 15 cm below from left scapular region. (6) Contusion with swelling 9. 5 cm x 8 cm on left forearm, 4 cm above from left wrist joint. Kept under observation and advised for X-ray at S. S. P. G. Hospital, Varanasi. 5. All the injuries were simple except injury Nos. (6) Contusion with swelling 9. 5 cm x 8 cm on left forearm, 4 cm above from left wrist joint. Kept under observation and advised for X-ray at S. S. P. G. Hospital, Varanasi. 5. All the injuries were simple except injury Nos. 4 and 6 which were kept under observation and X-ray was advised. Injury No. 4 had been caused by sharp pointed object whereas rest had been caused by blunt object. On X-ray being taken by Dr. S. K. Gupta, PW 11, the left ulna bone of left upper arm was found fractured in lower portion. The following injuries were found on the person of Barrister : (1) Lacerated wound 2 cm x 5 cm x bone deep on left side of head, on frontal region, 6 cm above from left upper eye brow. (2) Contusion 6 cm x 3 cm on right shoulder. (3) Contusion 8 cm x 3 cm on right scapular region. (4) Contusion 10 cm x 2 cm on left shoulder. (5) Abrasion 5 cm x 1. 5 cm on inner surface of left shoulder, 5 cm below from injury No. 4. (6) Abrasion 6 cm x 2 cm on inner surface of left forearm, 5 cm below from left elbow. (7) Contusion with swelling 7 cm x 5 cm on outer surface of left forearm, 2 cm below from left elbow. (8) Lacerated wound 1. 5 cm x. 5 cm x bone deep on left lower limb, 10 cm below from left knee on front. 6. All the injuries were simple and caused by blunt object. 7. The post-mortem over the dead body of the deceased Tej Vansh was conducted by Dr. Anand Singh PW 7 on 25-4-1978 at 1. 45 p. m. He was aged about 60 years and 1-1/2 days have passed since he died. 8. The following ante-mortem injury was found on his person: Stabbed wound 4. 5 cm x 1 cm x abdominal cavity deep. Margins clean cut over the back of right side in lumber region, 8 cm above iliac crest. Wound going right to left behind forward and below upwards in continuation cutting the right side of kidney and partially cutting abdominal aorta just above its bifurcation. 9. The death had occurred due to shock and haemorrhage resulting from the above injury. 10. The prosecution, in all, examined 12 witnesses. Wound going right to left behind forward and below upwards in continuation cutting the right side of kidney and partially cutting abdominal aorta just above its bifurcation. 9. The death had occurred due to shock and haemorrhage resulting from the above injury. 10. The prosecution, in all, examined 12 witnesses. Out of them Barrister PW 1 was informant (injured), Ram Raj PW 4 was another injured. Chhabi Nath PW 2 and Megh Narain pw 3 were the eye-witnesses. 11. The defence was of false application due to cross-case. The accused-appellant Shiv Nath stated that Megh Narain and others had got his sugarcane crop grazed by the cattle and when he complained of it, Tej Vansh and others assaulted. He also stated that Tej Vansh died in the incident but not at the hands of Banwari. According to him, he himself had lathi and Shiv Dhari had a spear. Shiv Dhari and Prem Narain alias Prema denied their presence at the spot. They also examined one witness Murari Singh DW 1 and filed certain papers including the copy of the Chik FIR of the cross case and the injury reports of Shiv Dhari and Banwari. It may also be noted that three contusions on the person of Shiv Dhari were found, which were all simple. He had been examined on 24-4-1978 at 8. 00 p. m. One incised penetrating wound 2 cm x 2 cm x 3 cm deep directed upwards on outside surface of left upper arm and one contusion with swelling on proximal phalanx of left little finger were the injuries of Banwari. Incised wound had been caused by sharp pointed weapon. He had been examined on 24-4-1978 at 8. 15 p. m. 12. The learned trial judge found the accused-appellant to be aggressors. The case of the defence did not find favour with him and he accordingly recorded the impugned conviction and sentences assailed in this appeal. 13. None appeared from the side of the appellants who are represented on record by Sri M. D. Singh Advocate. We have heard Sri A. K. Dwivedi, learned AGA from the side of the State and have perused the record of the lower Court. The appeal is being decided on merits. 14. The Court is concerned presently only with appellants Banwari and Prem Narain alias Prema as the other two have already died. 15. We have heard Sri A. K. Dwivedi, learned AGA from the side of the State and have perused the record of the lower Court. The appeal is being decided on merits. 14. The Court is concerned presently only with appellants Banwari and Prem Narain alias Prema as the other two have already died. 15. On examining the record of the case, we find that it is established beyond any ray of doubt that the incident had taken place on the date, time and place alleged by the prosecution. The ocular testimony of four eye-witnesses out of whom Barrister PW 1 and Ram Raj PW 4 are themselves injured finds corroboration from the medical evidence too. Tej Vansh lost his life in this incident on the prosecution side having suffered stabbed wound at the hands of appellant Banwari. Even defence witness Murari Singh DW 1 admitted in his cross-examination that Tej Vansh died at the spot. The defence has simply challenged the way of manner of occurrence. 16. True, the accused-appellants Shiv Dhari and Banwari also suffered injuries. It was suggested on behalf of the accused-appellants that Banwari, Shiv Dhari and Shiv Nath used spear and lathi in defence on being assaulted by the complainant Barrister PW 1, deceased Tej Vansh, Ram Raj PW 4 and others named as accused in the cross case. According to the defence version as set up in the cross FIR too, the complainant Barrister PW 1 and his brother Tej vansh deceased as well as Megh Narain and Nanhaku used to do the work of Chhanhari (collecting cattle and defecating them in the fields of others by way of supplying manure against payment ). On the date and time of occurrence, the cattle collected by them for this purpose had damaged the crop of the field of the present accused-appellants. When the accused-appellant Shiv Nath was going to complain about it at the door of Nanhaku Tewari Pradhan, he as well as Barrister PW 1, Ram Raj PW 4, deceased Tej Vansh and Megh Narain came prepared to assault him (Shiv Nath) and after an altercation, assaulted his (Shiv Naths) brothers Banwari and Shiv dhari who had reached the spot armed with lathi and spear. They wielded their weapons in defence. They wielded their weapons in defence. This cock and bull story introduced by the accused-appellants to dislodge the prosecution case was unnatural and improbable which could not be believed in view of the evidence on record, Barrister PW 1, Megh Narain PW 3 and Ram Raj PW 4 who entered in the witness box emphatically denied this fact even were doing the work of Chhanhari. Their version on this point inspires confidence because defence witness Murari Singh DW 1 also admitted in his cross-examination that Nanhaku was not only the Pradhan of the village, but also the biggest agriculturist. He further admitted that Tej Vansh, deceased, Megh Narain, Ram Raj and Barrister were also agriculturists. This being so, it could not be believed that they would have been doing the work if Chhanhari (collecting cattle to be used for defecating in the fields of others for providing manure against payment ). Murari Singh DW 1 himself was resident of different village. The accused-appellants could not produce any witness of the village on the point that Barrister and others on prosecution side were doing Chhanhari business. The story regarding the damage caused to the crop of accused-appellants Shiv Nath was also not corroborated by the spot inspection of the Investigating Officer Vishwa Nath Singh SI PW 12 who specifically stated that at the time of spot inspection, he did not find any crop damaged. It is again surprising that shiv Nath was allegedly going to make complaint, yet he was not injured at all and that even the actual Marpeet had started Banwari and Shiv Dhari reached there armed with lathi and spear. We are sure that the truth of the matter was that they had gone armed with intention to assault Tej Vansh and others as alleged by the prosecution. 17. It is obvious that after having committed the crime the accused-appellants were groping in the dark to come out of the difficult situation in which they placed themselves by their criminal act. As per the case set up by the defence in the cross FIR the copy of which is Ex. Kha-1, the presence of Shiv Nath and his brothers Banwari and Shiv Dhari at the time of the occurrence si admitted. Not only this, the accused-appellant Shiv Nath, who lodged the FIR of the cross case, stated in his answer to question No. 4 under Section 313 Cr. Kha-1, the presence of Shiv Nath and his brothers Banwari and Shiv Dhari at the time of the occurrence si admitted. Not only this, the accused-appellant Shiv Nath, who lodged the FIR of the cross case, stated in his answer to question No. 4 under Section 313 Cr. P. C. that Shiv Dhari was armed with spear at the time of occurrence and he was having a Danda. However, the accused-appellant Shiv Dhari in his answer to the question No. 4 under Section 313 Cr. P. C. stated that he was not present at that time. 18. It may be stated at the risk of repetition that the prosecution version proving the accused-appellants to be aggressors is established by the testimony of four eye-witnesses out of whom Barrister PW 1 and Ram Raj PW 4 are themselves injured. The presence of Megh Narain PW 3 has also been admitted by the accused side. Chhabi Nath PW 2 is the brother of Nanhaku Pradhan whose house is adjacent to the spot and as such his presence is also quite natural and probable. Megh Narain PW 3 and Nanhku were impleaded as accused in the cross case because Megh Narain and Chhabi Nath were prosecution witness in this case. Admittedly, Megh Narain and Nanhaku had not suffered any injury in this occurrence and their participation appears to be unnatural and improbable. Moreover, Megh Narain PW 3, though of the Khandan of Ram Raj, also appears to be affiliated with the accused persons. He stated in his cross- examination that his Kolhu-Karah were joint with accused persons. He also stated that he was more thick with Banwari having close association. It is an indicator that he would not depose against the accused persons in case the incident had not taken place as alleged by the prosecution. Despite being affiliated with the accused-appellant Banwari, his conscience dictated him to speak the truth in favour of the prosecution. 19. So far as injuries on the side of the accused appellants are concerned, they have been explained in the FIR itself in which it is stated that the complainant Barrister and his uncle Ram Raj had rushed up with lathis to defend Tej Vansh. In their deposition also they stated that they wielded lathis in defence. Megh Narain PW 3 also stated that he had seen blood oozing from Banwari. In their deposition also they stated that they wielded lathis in defence. Megh Narain PW 3 also stated that he had seen blood oozing from Banwari. It is to be noted that Banwari and Shiv Dhari accused-appellants suffered injuries of blunt weapon except one incised wound suffered by Banwari on left upper arm. None of these injuries was on the vital part and all the injuries were simple. The injury of sharp edged weapon of Banwari also stands explained because even accused- appellant Shiv Nath in his answer to question No. 6, though admitting Marpeet, was not able to disclose as to who was injured and by whose weapon. Banwari also did not say anywhere in his statement under Section 313 Cr. P. C. that he had suffered the said injury (incised wound) at the stands of complainant or any other person on his side. It may also be stated that as per the defence, it was Nanhaku who was armed with spear who had caused the said injury to Banwari, but as said above, the participation of Nanhaku appears to be wholly improbable and unbelievable. In case Nankhau was present at the time of the scuffle, his name would have been mentioned by the informant (Barrister PW 1) in the FIR because at that time it could not be anticipated that the accused Shiv Dhari was planning to lodge cross FIR with distorted version of the incident as a counter blast. The incised wound suffered by Banwari was of insignificant dimension and in any view of the matter the prosecution cannot be flawed for having not been able to explain this injury. 20. The medical evidence adduced by the prosecution also supports the ocular version. Barrister PW 1 and Ram Raj PW 4 suffered as many as 14 injures including one injury of sharp edged weapon and one fracture. Some of the injuries were on the vital parts. Tej Vansh died at the spot as a result of spear injury. On the side of the accused-appellant only Banwari and Shiv Dhari in all, suffered five injuries, all of which were simple and on non-vital parts. The same have been explained also by the prosecution as discussed above. The FIR made by the prosecution was earlier in point of time, containing the material facts including the names of eye-witnesses and even explanation for the injuries of the other side. The same have been explained also by the prosecution as discussed above. The FIR made by the prosecution was earlier in point of time, containing the material facts including the names of eye-witnesses and even explanation for the injuries of the other side. The FIR of the cross case was lodged subsequently, when sufficient opportunity was available for the defence to come to know the names of even the witnesses of this incident and to fashion their cross FIR accordingly laying foundation for defence which ultimately could not stand to the test of judicial scrutiny. 21. On testing impugned judgment and order recorded by the lower Court from the close eye on the basis of the evidence and attending circumstances, we find the same to be perfectly sustainable. All the accused-appellant (out of whom two have died) were acting in concert sharing the common intention of each other. They have rightly been convicted for the offences stated in the opening part of the judgment. The sentences passed against them also do not call for any interference. 22. We finally order as under: The appeal abates so far as the appellants Shiv Dhari and Shiv Nath are concerned as they have died. The appeal is dismissed insofar as it concerns the two others appellants, Banwari and Prem Narain alias Prema. Their conviction and sentences as recorded by the lower Court are sustained. They are on bail. They shall be arrested and lodged in jail to serve out the sentences passed against them by the lower Court. A copy of this judgment and order is directed to be sent by the office to the lower Court for needful action and compliance under intimation to this Court within two months from the date of receipt. Appeal dismissed. .