Judgment M.L.Visa, J. 1. Being aggrieved by the judgment and order dated 21-12-1987 passed by the Additional Sessions Judge, Patna at Barh, in Sessions Trial No. 131 of 1984 convicting and sentencing all the four appellants to undergo imprisonment for life u/s. 302/34 of the Indian Penal Code (for short, Indian Penal Code, 1860 ) and further convicting and sentencing the appellant Bhola Singh to undergo R.I. for two years u/s. 324, Indian Penal Code, 1860 but both the sentences against appellant Bhola Singh directing to run concurrently, all the four appellants in this appeal have challenged the judgment and order of their conviction and sentences. 2. The case of prosecution, briefly stated, is that on 17-12-1981, at about 5 p.m. deceased Shashi Bhushan Singh alias Lugan, younger son of informant. Harbansh Singh (PW-5), went to verandah of his Bungala (a sitting place) to tether his cattle. At that time, all the appellants who were sitting in the flour mill of appellant Bhola Singh, who is cousin of informant, situate in the southern portion of joint Bungala, asked the deceased not to tether his cattle there. When deceased replied that the Bungla belonged to him and why he was being prevented to tether his cattle, appellant Bhola Singh ordered remaining appellants to kill him and thereafter all the four appellants threw the deceased on the ground and appellant Ashok Singh assaulted the deceased on his head and forehead by means of a stone being used as weight causing bleeding injuries from mouth and nose. Appellant Ram Bilas Singh assaulted the deceased by an iron rod on his head. That also caused swelling and bleeding both from mouth and nose and appellant Anil Singh gave a chhura blow on the left side of his back causing bleeding injury. When informant tried to rescue his son, appellant Bhola Singh gave a chhura blow on his back below, the neck and informant also received bleeding injury and fell on the ground. At the time of occurrence, Chandra Bhushan Singh (PW-2), elder son of informant, villagers Narsing Singh and Mahendra Singh (both not examined), were present there who witnessed the occurrence. After assault appellants fled away towards their house situated in the north direction and informant with the help of aforesaid witnesses who were present there, took his son on rickshaw to Jalalpur Hospital where his son died. After assault appellants fled away towards their house situated in the north direction and informant with the help of aforesaid witnesses who were present there, took his son on rickshaw to Jalalpur Hospital where his son died. Informant was referred to Barahiya State Hospital for treatment where his fardbeyan was recorded by SI, R. S. Singh on the same day at about 6 p.m. A case under Secs. 302/307/324/34, Indian Penal Code, 1860 was registered against all the appellants and police after investigation submitted charge-sheet. Cognizance of the case was taken and the case was committed to the Court of Session where charges under Sec. 302/34, Indian Penal Code, 1860 against all the four appellants and additional charge under Sec. 307, Indian Penal Code, 1860 against appellant Bhola Singh were framed. After trial, all the four appellants were found guilty and they were convicted and sentenced as stated above. 3. The case of appellants during the trial, as it appears from the evidence of defence witnesses examined on their behalf and from the trend of cross-examination of prosecution witnesses is that no occurrence as alleged ever took place and deceased received injuries while looting a truck and he died of those injuries and appellants have been falsely implicated in this case for their enmity with family members of informant on account of partition between the parties. 4. Altogether 8 witnesses on behalf of the prosecution have been examined. Harbansh Singh (PW-5) is the informant. Mathura Singh (PW-1) is a seizure list witness. Dr. Anugrah Pd. Singh (PW-3) is the doctor who examined the informant. Dr. Shankar Pd. Deokuliar (PW-4) is the doctor who held post mortem examination on the dead body of deceased. Dr. P. K. Sethy (PW-7) is the doctor who prepared injury report in respect of injuries of informant. Ram Swarath Singh (PW-8) is the I.O. Chandra Bhushan Singh (PW-2) and Sudan Singh (PW-6) are witnesses on the point of occurrence. 5. Dr. Shankar Pd. Deokuliar (PW-4), in his evidence, has said that on 18-12-1981 he was posted at Sub-divisional Hospital, Barn and on that day at 10.30 a.m. he held post mortem examination on the dead body of deceased and found as follows :- - (i) Rigor Mortis was present. 5. Dr. Shankar Pd. Deokuliar (PW-4), in his evidence, has said that on 18-12-1981 he was posted at Sub-divisional Hospital, Barn and on that day at 10.30 a.m. he held post mortem examination on the dead body of deceased and found as follows :- - (i) Rigor Mortis was present. (ii) Punctured elliptical wound with sharp edge above and slightly lacerated lower angle of 1" x 1/2" x deep communicating to left pleural cavity i.e. chest, on the back of chest medial to the root of spine of scapula left side. This injury could have been possible by chhura. (iii) Scratch of 1/4" x 1/4" on left side of fore head. (iv) Scratch of 1/4" x 1/5" on upper part of bridge of nose. Both the scratches can be possible by small piece of stone. (v) Scratch of 1" x 1/3" on the medial of left knee. This injury was possible by fall on ground. (vi) On opening chest -- blood in left side of chest and pleural cavity and posterior lobe found punctured on upper part. Hilar part of left lungs seen punctured with cutting of pulmonary vessels. (vii) Stomach was full with partially digested rice and vegetables and bladder was full with gas faeces. According to him, all the injuries were of ante mortem nature and cause of death was due to shock as a result of haemorrhage due to injuries in para-(ii) and time elapse since post mortem examination was within 18 hours. He has further stated that nature of injuries was sufficient to cause death. He has proved post mortem examination report (Ext. 4). His evidence has suggested that death was homicidal. 6 Now it is to be seen that what evidence the prosecution has led against the appellants making them responsible for the injuries which were found on the deceased and which resulted into his death. 7. Harbansh Singh (PW-5), the informant, in his evidence, has said that on 17-12-81 at 5 p.m. deceased Shashi Bhushan Singh was going to tether the bullock and cow at the old Dalan and at that time appellants who happen to be his agnate were also sitting in their flour mill. At that time flour mill was running and a bulb was blooming. At that time flour mill was running and a bulb was blooming. Appellant Bhola Singh asked his son not to tether the cattle and when his son replied that the place belonged to him, appellant Bhola Singh ordered to kill him and thereafter all the four appellants caught hold of his deceased son and appellant Ashok Singh assaulted his deceased son by a stone used as weight on his head and forehead and appellant Ram Bilas Singh assaulted the deceased by an iron road and appellant Anil Singh gave a chhura blow oh the back of his deceased son. He has further said that his deceased son received bleeding injuries and when he went to rescue his deceased son, appellant Bhola Singh gave him a chhura blow below his neck on left side. He has further said that occurrence was witnessed by his elder son Chandra Bhushan, Singh (PW-2), Narsing Singh and Mahendra Singh. Informant and his son ran towards their new Dalan and were followed by appellants. Appellant Ashok Singh threw a piece of brick on the head of his deceased son and his deceased son fell down and started tossing and appellants assaulted him with stones, fists and slaps and thereafter, appellants fled away with bloodrstained chhura. According to him, the occurrence besides Shashi Bhushan Singh (PW-2), Narsing Singh and Mahendra Singh was seen by Sudan Singh (PW-6) also and after occurrence he and his deceased son were taken to Jalalpur Hospital where the doctor declared his injured son dead and referred him to Barahiya State Hospital where he was given treatment and police came there and recorded his fardbeyan. He has proved his fardbeyan (Ext. 5). He has further said that his blood stained clothes were also seized by police. During his examination he pointed out marks of injuries on his person. He has admitted that appellants Bhola Singh and Ram Bilas Singh are his cousins and appellant Ashok Singh is son of appellant Bhola Singh. In para-1 of his evidence he has named Anil Singh as one of the appellants but in para-5 of his evidence he has said that Anil Singh alias Pintoo is son of Anil Singh. He has admitted that appellants Bhola Singh and Ram Bilas Singh are his cousins and appellant Ashok Singh is son of appellant Bhola Singh. In para-1 of his evidence he has named Anil Singh as one of the appellants but in para-5 of his evidence he has said that Anil Singh alias Pintoo is son of Anil Singh. It appears that this statement has wrongly been recorded because Anil Singh alias Pintoo who is one of the appellants is son of appellant Ram Bilas Singh which appears from his statement recorded under Sec. 313, Cr.P.C. The informant has said that all appellants are his agents. In this way, I find the appellants include two cousins and two nephews of informant. 8. Chandra Bhushan Singh (PW-2) is the son of informant and he has stated that at the time of occurrence he along with his father Harbansh Singh was in his old Bungala and at that time, his younger brother, deceased Shashi Bhushan Singh went to tether the cattle in the north verandah of old Bungala when his uncle, appellant Bhola Singh, who owns the southern portion of old Bungala and is having a flour mill towards south of verandah, asked Shashi Bhushan Singh not to tether the cattle there and when Shashi Bhushan Singh replied that why he was being prevented from tethering his cattle in his own share, appellant Bhola Singh ordered other appellants to kill him and thereafter all the appellants pounced upon his deceased brother and appellant Ashok Singh by a stone used as weight assaulted Shashi Bhushan Singh on his forehead and nose and appellant Ram Bilas Singh assaulted on his head by iron rod and appellant Anil Singh gave a chhura blow on the left side of his back and when his father went to rescue he was also assaulted on his back below the neck. He along with his father and deceased ran towards bungalow and all accused chased them and appellant Ashok Singh threw a piece of brick which hit the head of his deceased brother who fell down and started floundering and his father was also assaulted by the appellants by fists and slaps and Mahendra Singh and Narsing Singh rescued them and thereafter appellants fled away. According to him, his father and deceased brother were taken to Jalalpur Hospital where the doctor declared his brother dead and referred his father to Barahiya State Hospital for treatment where police came and fardbeyan was recorded and clothes of his father were seized by the police and seizure list was prepared on which he and Kapildeo Singh put their signatures. His signature is marked as Ext. 1/2 on the seizure list. 9. Sudan Singh (PW-6) has said that at the time of occurrence he was coming from his house and when he reached the Dalan of informant he found that deceased Shashi Bhushan Singh alias Lugan was lying fallen on the ground and appellant Bhola Singh and Anil Singh alias Pintoo were holding blood-stained daggers and appellants Ashok Singh and Ram Bilas Singh were also there but empty handed and all appellants were assaulting the informant with fists and slaps and Mahendra Singh and Narsing Singh came there and appellants fled away towards their house. 10. The case of prosecution is that informant was also assaulted by appellant Bhola Singh by means of chhura causing injury on his head below the neck. 11. Dr. Anugrah Pd Singh (PW-3) has said that on 17-12-81 he was posted as Medical Officer at Barahiya and on that day at 6 p.m. he examined the informant and found one stabbed wound of the size of 1" x 1/4" x 1" over the back upper portion slightly on the left of vertebral column and this injury was caused by sharp pointed weapon such as knife (chhura) and opinion was reserved till the Xray report was received and informant was referred to Nazarat Hospital, Mokamah. He has further said that on 30-12-81 he received the Xray plate and report according to which injury was simple in nature. He has proved the injury report (Ext-2) and report which he received from Nazarat Hospital, Mokamah bears his signature which is marked Ext.3. On this point the prosecution has examined B. K. Sethy (PW-7), Surgeon Incharge of Nazarat Hospital, Mokamah who, in his evidence, has said that on 18-12-81 the informant was admitted with the history of sharp injury and he found laceration of 11/2" long which was caused by hard and sharp weapon which may be a knife. He has proved injury report prepared by him from the bed head chart, marked Ext. He has proved injury report prepared by him from the bed head chart, marked Ext. 2/1 and has also proved the Xray report, marked Ext.7. In para-5 of his evidence he has stated that at the request of APP he prepared injury report on the basis of chart. The prosecution has not been able to bring anything on record to show the necessity of examination of this witness who has proved the injury report which was prepared by him on the basis of chart when Dr. Anugrah Pd Singh who on the day of occurrence itself had examined the informant has already appeared as PW-3 and has deposed in this case. 12. Ram Swarath Singh, PW-8, is the I.O. of this case and he in his evidence has said that on 17-12-81 he was posted as SI of Panchmahla Police Chauki at Hathidah Police Station and on that day at about 5.30 p.m. he received information from Dafadar Brij Nandan Singh of Circle No. 7 that an occurrence of assault had taken place between the informant and appellant Bhola Singh and he then recorded the station diary entry No. 244, dated 17-12-81. He has further said that Dafadar Brij Nandan Singh told him that informant and his son Shashi Bhushan Singh had been brutally assaulted and he also came to know that injured was taken to Barahiya Hospital and he then along with constable Satya Narayan Singh went to Barahiya State Hospital where on the same day at about 6 p.m. he recorded the Fardbeyan of informant. He has proved signatures of Baleshwar Pd Singh and Subhash Pandey on the fardbeyan which are marked Exts. 3/1 and 3/2 and has further proved the endorsement of Raj Kumar Singh, the then Officer Incharge of Hathidah PS on the fardbeyan which is marked Ext. 8 and has also proved his forwarding note on fardbeyan, marked Ext.9 and he has also proved formal FIR, marked Ext. 10. According to him, he took up investigation of the case and sent a requisition, marked Ext. 11, addressed to Medical Officer. Barahiya State Hospital and seized blood-stained clothes of informant and prepared seizure list, marked Ext. 1/2. 8 and has also proved his forwarding note on fardbeyan, marked Ext.9 and he has also proved formal FIR, marked Ext. 10. According to him, he took up investigation of the case and sent a requisition, marked Ext. 11, addressed to Medical Officer. Barahiya State Hospital and seized blood-stained clothes of informant and prepared seizure list, marked Ext. 1/2. He has also proved carbon copy of inquest report of deceased, marked Ext.12 and has said that he sent the dead body of deceased for post mortem examination through constable Satya Narayan Singh and Chaukidar Jitan Paswan with a command certificate which is in his writing and signature, marked Ext.13. According to him, he on the day of occurrence at about 8 p.m. inspected the place of occurrence which is Dalan and Osara (verandah) of a flour mill and found 3 pegs, one cow, cow dung, urine, Nad etc. in the verandah and in a room situate towards south of Dalan he found articles, weights, weighing scale scattered and seized a stone weighing about 1 Kg and an iron rod. On being shown the stone and iron rod marked Mat. Exts.3 and 4 respectively, he has said that he had seized those articles and prepared a seizure list marked Ext.1/1. He has further said that he inspected the place of occurrence and prepared a sketch map, marked Ext.14. His further evidence is that he seized blood stained soil and blood stained brick and also blood stained bamboo stick and sent it for expert examination by a requisition which is in his writing, marked Ext.15 and had received report of expert, marked Ext.16. 13. Learned counsel appearing on behalf of the appellant has argued that the I.O. in his evidence has stated that on inspection of the place of occurrence he found Dalan and Verandah of Flour Mill and there was a hall in the middle of Dalan and on both sides there were rooms having their opening in the hall and Flour Mill was situated in the south direction of the hall. It has further been argued that I.O. found a Baithka at the distance of about 150 feet in the south-western direction of this Dalan and he also found a road connecting the Dalan of flour mill and Baithka and there was a Sahan towards north of this Baithaka in which he found a heap of straw and towards north of that heap of straw he found marks of blood and blood stained piece of brick and marks of blood stains on the heap of straw which he seized. According to the learned counsel of appellants this evidence of I.O. suggests that occurrence had taken place near the Baithka and not in the Dalan of flour mill which does not support the case of prosecution according to which the deceased and informant were assaulted in the Dalan of the flour mill. The case of prosecution that when deceased went to tether his cattle in the northern verandah of bungala he and informant were assaulted by appellants there but at the same time prosecution witnesses have stated that southern portion of bungala belongs to appellants which they have got in their share and in that portion they are having their flour mill. They have further said that when deceased and informant were assaulted in the verandah of this bungala they in order to save their lives ran towards new bungala. About the location of this new bungala informant Harbansh Singh (PW-5), in his evidence, has stated that his new bungala is situated on plot No. 2254. From the sketch map of the place of occurrence (Ext. 14) it appears that old bungala in which informant and appellants both are having their shares is situated in plot No. 2106 and plot No. 2254 is situated at a distance of 150 feet west-south from this old bungala. The case of prosecution is that first of all deceased and informant were assaulted at verandah of old bungala and thereafter they in order to save their lives ran towards the new bungala and near new bungala they fell down. In the circumstances, if the I.O. has stated that he found blood near new bungala, marks of blood on heap of straw kept towards north of this bungala and blood stained piece of brick there, it cannot be said that this piece of evidence is against the case of prosecution. In the circumstances, if the I.O. has stated that he found blood near new bungala, marks of blood on heap of straw kept towards north of this bungala and blood stained piece of brick there, it cannot be said that this piece of evidence is against the case of prosecution. Besides this, I find that I.O. in para-7 of his evidence has clearly stated that on the road going from the Dalan of flour mill towards the bungala situated towards south west he found blood drops at some places but those drops were so small in size that it could not be collected. 14. Learned counsel appearing on behalf of appellant has further argued that the I.O., in his evidence, as stated that first of all he received information about the occurrence from Braj Nandan Singh who was Dafadar of Circle No. 7 and he entered this information in Station Diary Entry No. 244 dated 17-12-81 and in para 12 of his evidence he has stated that this Station Diary Entry No. 244 dated 17-12-81 is in Pachmahla O.P., Hathidah Police Station. He has further argued that this Station Diary Entry which was the first information of occurrence has not been brought on record and non-production of this Station Diary Entry makes the case of prosecution doubtful. No doubt the I.O. in his evidence has stated that on 17-12-81 at about 5.30 p.m. he received information from Dafadar Braj Nandan Singh and he entered the information in Station Diary Entry No. 244, dated 17-12-81 but then he has said that Dafadar Braj Nandan Singh simply informed him that a fight had taken place between the informant and appellant Bhola Singh and others. He does not say that Dafadar Braj Nandan Singh gave any detail of the occurrence. The occurrence in this case is said to have taken place on 17-12-81 at 5 p.m. The fardbeyan of informant was recorded by the I.O. on the same day at about 6 p.m. at the Emergency Ward of Barahiya State Hospital where informant was admitted for his treatment. There has been no delay in recording fardbeyan of informant. The occurrence in this case is said to have taken place on 17-12-81 at 5 p.m. The fardbeyan of informant was recorded by the I.O. on the same day at about 6 p.m. at the Emergency Ward of Barahiya State Hospital where informant was admitted for his treatment. There has been no delay in recording fardbeyan of informant. Under these circumstances, if the station diary entry No. 244 dated 17-12-81 has not been produced by the prosecution it will not adversely affect its case because as per the evidence of I.O. this entry was in respect of a simple information that an occurrence of assault had taken place between the parties. 15. The appellants have examined Md. Sahab Akhtar (D.W.1) who at the relevant time was posted as Dy. S.P. and he in his evidence has stated that he supervised the investigation of this case by visiting the place of occurrence on 18-12-81 and during supervision he recorded the statement of informant Harbansh Singh (PW-5) and Sudan Singh (PW-6). He has said that before the informant had stated that he wanted to rescue his son and appellant Bhola Singh by snatching Chhura from appellant Anil Singh wanted to assault him and has further stated that when his deceased son tried to run away all the four appellants assaulted him at another Dalan resulting in to his death where a number of persons assembled but by that time his son had died. About Sudan Singh (PW-6) he has said that this witness had stated before him that on the another Dalan appellants were assaulting the deceased and informant had caught hold of deceased who died and informant had also received injury. Sudan Singh (PW-6), in his evidence has not stated that he saw all the appellants assaulting and killing the deceased and has simply said that when he reached the place of occurrence he saw the deceased son of informant fallen on ground and appellants Bhola Singh and Anil Singh were carrying blood stained daggers and appellants were assaulting the informant with fists and slaps. Admittedly, before supervision of investigation by DW-1, the I.O. had already recorded the statement of informant and witness Sudan Singh and no attention of any type on the evidence of informant that he received dagger injury by appellant Bhola Singh has been drawn by defence. Admittedly, before supervision of investigation by DW-1, the I.O. had already recorded the statement of informant and witness Sudan Singh and no attention of any type on the evidence of informant that he received dagger injury by appellant Bhola Singh has been drawn by defence. DW-1 has admitted that after supervision of investigation he found the case of prosecution true and recommended for submission of charge-sheet. In view of this admission his evidence does not help the appellants in any manner. 16. The prosecution has brought on record the requisition, marked Ext.15 by which blood stained soil, blood stained green leaves, blood stained piece of bamboo and blood stained piece of brick, all seized by police from place of occurrence were sent to the Forensic Science Laboratory for examination and the report of the Office of the Director, Forensic Science Laboratory along with the report of the Serologist and Chemical Examiner (Ext.16) from which it appears that so far blood stained soil is concerned; after examination it was found that it contained human blood but about other articles those were distinguished and their origin could not be determined. The blood group of blood found on any of the items could not be determined because blood stain found on the soil was not sufficient for test and blood stain on other items was disintegrated. From this report it appears that the soil which was seized by the I.O. from the place of occurrence contained human blood. 17. Learned counsel appearing on behalf of appellant has argued that Chandra Bhushan Singh (PW-2); in his evidence, has stated that Mahendra Singh and Narsing Singh were present at the time of occurrence and they had rescued his father who is informant of this case and informant Harbansh Singh (PW-5), in his evidence, has also stated that Mahendra Singh and Narsing Singh had witnessed the occurrence but prosecution has not examined Mahendra Singh and Narsing Singh in this case. He has further argued that on the point of occurrence the prosecution had adduced the evidence of Harbansh Singh and his son Chandra Bhushan Singh and there is no independent witness to support the case of prosecution. He has further argued that on the point of occurrence the prosecution had adduced the evidence of Harbansh Singh and his son Chandra Bhushan Singh and there is no independent witness to support the case of prosecution. I find that in this case besides the evidence of informant and his son Chandra Bhushan Singh (PW-2) there is evidence of Sudan Singh (PW-6) who although has not given evidence that he saw the appellants assaulting the deceased but has clearly stated that when he reached the place of occurrence he found the deceased fallen on the ground and appellants Anil Singh and Bhola Singh were standing there carrying blood stained daggers. He also saw appellants Ashok Singh and Ram Bilas Singh standing there. It is true that on his evidence that appellants assaulted the informant with fists and slaps, attention has been drawn to his evidence that he had not stated this fact before I.O. Ram Swarath Singh (PW-8) and I.O., in his evidence, has admitted that this witness had not stated before him that he saw the appellants assaulting the informant with fists and slaps, but so far his evidence that he saw the deceased fallen on the ground and two appellants standing there carrying blood stained daggers, no attention has been drawn by the defence on this part of his evidence. Informant himself was an injured. No enmity between the parties has been brought on record. In view of this fact, I do not find any reason for giving false evidence by informant and his son. Besides this, the fardbeyan of informant was lodged at about 6 p.m. on 17-12-1981 i.e. immediately after the occurrence in the Emergency Ward of Barahiya State Hospital where informant was admitted for his treatment. 18. Considering all the facts I find that prosecution has proved its case that deceased was assaulted by appellants Anil Singh alias Pintoo, Ashok Singh and Ram Biswas Singh and appellants Bhola Singh inflicted an injury by a knife on the back portion of neck of informant which was simple in nature. 19. In this case all the appellants have been convicted and sentenced to undergo imprisonment for life u/s. 302/ 34, Indian Penal Code, 1860 and appellant Bhola Singh has further been convicted and sentenced to undergo R.I. for a period of 2 years under sec. 324, Indian Penal Code, 1860 . 19. In this case all the appellants have been convicted and sentenced to undergo imprisonment for life u/s. 302/ 34, Indian Penal Code, 1860 and appellant Bhola Singh has further been convicted and sentenced to undergo R.I. for a period of 2 years under sec. 324, Indian Penal Code, 1860 . The informant and his son in their evidence have said that appellant Bhola Singh ordered other appellants to kill the deceased son of informant and thereafter, deceased was assaulted by his companions. About appellant Bhola Singh it is further alleged that he inflicted chhura injury on the back portion of neck of informant meaning thereby, he was also armed with chhura. The evidence of informant and his son who are eye-witnesses to the occurrence, is that all the four appellants caught hold of deceased but they do not say that appellant Bhola Singh inflicted any injury on deceased, although according to them, he was armed with a chhura. Under these circumstances, evidence of informant and his son that appellant Bhola Singh ordered to kill the deceased does not appear reliable. Admittedly, the occurrence took place when deceased went to tether his cattle in the verandah of his old Bangla and when it was protested by appellant Bhola Singh, deceased laid his claim on the portion of verandah and thereafter occurrence took place. These circumstances show that occurrence took place on the spur of moment and there was no premeditation between the appellants to kill the deceased but at the same time, I find that prosecution has proved that deceased was assaulted by appellants Ashok Singh, Ram Bilas Singh and Anil Singh alias Pintoo and informant received injury from appellant Bhola Singh, Appellants are, therefore, liable for their individual acts of assault. The injury inflicted by Anil Singh alias Pintoo on the back of deceased with chhura proved fatal. The injury inflicted by Anil Singh alias Pintoo on the back of deceased with chhura proved fatal. Considering the fact that only one chhura blow by appellant Anil Singh alias Pintoo, that too on the back of deceased, was inflicted and there was no repetition by chhura, it appears that he had no intention to kill the deceased or to cause such bodily injury on him which was likely to cause death but at the same time considering the fact that he inflicted a chhura blow on the back of deceased which proved fatal, it appears that while giving chhura blow on the back of deceased he had knowledge that his act was likely to cause death. I, therefore, find that case of appellant Anil Singh alias Pintoo falls under Part-II of sec. 304, Indian Penal Code, 1860 . The other injuries found on deceased and attributed to appellants Ram Bilas Singh and Ashok Singh were three scratches out of which one was 1/4" x 1/4" on left side of forehead, one was 1/4" x 1/5" on upper part of bridge of nose which according to the doctor were possible by small piece of stone and the third one was 1" x 1/3" on the medial side of left knee which, according to the doctor, was possible by fall on the ground. Considering this aspect of the matter, case of appellants Ashok Singh and Ram Bilas Singh falls u/s. 323, Indian Penal Code, 1860 . About appellant Bhola Singh, as stated above, it has been proved that he inflicted simple injury on the back of neck of informant with "chhura" and for that he has already been found guilty u/s. 324, Indian Penal Code, 1860 . Agreeing with the findings of the Court below I also find appellant Bhola Singh guilty under Sec. 324, Indian Penal Code, 1860 . 20. The conviction of appellant Anil Singh alias Pintoo is altered to Section 304, Part-II, Indian Penal Code, 1860 and conviction of appellants Ram Bilas Singh and Ashok Singh to sec. 323, Indian Penal Code, 1860 . Conviction of appellant Bhola Singh u/s. 302/34 is set aside and his conviction u/s. 324, Indian Penal Code, 1860 is confirmed. 21. 20. The conviction of appellant Anil Singh alias Pintoo is altered to Section 304, Part-II, Indian Penal Code, 1860 and conviction of appellants Ram Bilas Singh and Ashok Singh to sec. 323, Indian Penal Code, 1860 . Conviction of appellant Bhola Singh u/s. 302/34 is set aside and his conviction u/s. 324, Indian Penal Code, 1860 is confirmed. 21. On the point of sentences, I find that appellant Anil Singh alias Pintoo has remained in custody for more than 4 years 8 months, appellant Bhola Singh has remained in custody for more than 3 months, appellant Ashok Singh has remained in custody for more than 2 years and appellant Ram Bilas Singh has remained in custody for more than 2 months, during the trial and during the pendency of the appeal. The sentence passed against appellants are reduced to the period already undergone by them in custody. 22. With the aforesaid modification, this appeal stands dismissed. Mridula Mishra, J. 23 I agree.