M. C. JAIN, J. The accused-appellants are five in number, namely, Anokhey Lal, Naresh, Khushali Ram, Ram Bhajan and Rameshwar Dayal. They have come up in appeal against judgment and order dated 13- 10-1981 passed by Sri V. S. Agrawal, III Additional Sessions Judge, Pilibhit in S. T. No. 194 of 1980. Each of them has been convicted under Section 302 I. P. C. read with Section 149 I. P. C. and under Section 323 I. P. C. read with Section 149 I. P. C. For the former offence, life imprisonment has been awarded to each of them whereas for the latter the sentence is of one years rigorous imprisonment. Besides, Anokhey Lal and Naresh have been convicted under Section 147 I. P. C. with sentence of one years rigorous imprisonment and the remaining three have been convicted under Section 148 I. P. C. with sentence of one years rigorous imprisonment. The sentences have been ordered to run concurrently. 2. Anokhey Lal is the uncle of Naresh, Khushali Ram and Ram Bhajan who are real brothers. Rameshwar Dayal is said to be their neighbour and associate. 3. The incident took place on 3-3-1980 at about 8. 00 a. m. in village Sondha Gauntia, Police Station Bisalpur, District Pilibhit and the report was lodged the same day at 12. 30 p. m. by an eye-witness Mathura Prasad PW 1. The distance of the Police Station from the place of occurrence was about 7 miles. The background was that on 22-2-1980, there had been a quarrel between Mathura Prasad PW 1 on the one hand and Anokhey, Ram Bhajan, Bachchoo Singh and Ram Singh on the other over the issue of irrigation of the field of Mathura Prasad by canal water. Anokhey Lal, Ram Bhajan, Bachchoo Singh and Ram Singh stopped him from doing so. Mathura Prasad lodged a report in this behalf. It was the cause of the animosity between them. 4. On the fateful day, Ganga Ram and Nanhakoo, accompanied by their nephew Mathura Prasad PW 1, went to attend the call of nature outside the village. When they reached near the field of Shanker Lal, accused-appellants emerged from the wheat field of Shanker Lal, Khushali Ram and Ram Bhajan were armed with spears whereas Rameshwar Dayal had a country-made pistol. The remaining two Anokhey Lal and Naresh were armed with lathis. When they reached near the field of Shanker Lal, accused-appellants emerged from the wheat field of Shanker Lal, Khushali Ram and Ram Bhajan were armed with spears whereas Rameshwar Dayal had a country-made pistol. The remaining two Anokhey Lal and Naresh were armed with lathis. They held out that they would not leave them alive and started assaulting Ganga Ram and Nanhakoo. Rameshwar Dayal also opened fire from his pistol. The victims cried attracting Shanker Lal, Pothi Ram and Umrai Lal. Some lathi blows were given to Mathura Prasad also. Nanhakoo died at the spot and Ganga Ram breathed his last while on way to hospital. The accused- appellants fled away after committing this crime. Mathura Prasad PW 1 scribed the F. I. R. in the hospital and leaving the dead-body of Ganga Ram there, he went to the Police Station and lodged it there at 12. 30 p. m. Head Constable Rajesh Singh PW 3 recorded the F. I. R. and registered a case on the basis of the same. 5. S. I. Jaibir Singh PW 4 went to the PHC Bisalpur and prepared the inquest report of the dead-body of Ganga Ram. After completion of formalities, the dead-body was sealed and sent for post-mortem. Then he reached the village of the incident with S. I. Ram Lakhan Singh PW 7 and prepared the inquest report as also necessary papers relating to the dead body of Nanhakoo. His dead-body was also sealed and sent for post-mortem. The witnesses were interrogated by S. I. Ram Lakhan Singh. Blood stained and simple earth was collected from the spot. Site-plan was prepared. A live cartridge was also recovered from the field of Shanker Lal place of the incident. Ultimately, the charge-sheet was submitted. 6. It would be appropriate to set out here the outcome of the injury report of Mathura Prasad and of the autopsy of the two deceased. Mathura Prasad was medically examined on 3-3-1980 by Dr. Mahesh Kumar Arya PW 5. Two blunt weapon injuries were found on his person. 7. It was Dr. V. P. Agrawal PW 6, who conducted the post-mortem on the dead-body of Ganga Ram and Nanhakoo. Post-mortem over the dead-body of Ganga Ram was conducted on 4-3-1980 at 1. 00 p. m. He was aged about 50 years and about 36 hours had passed since he died. 8. 7. It was Dr. V. P. Agrawal PW 6, who conducted the post-mortem on the dead-body of Ganga Ram and Nanhakoo. Post-mortem over the dead-body of Ganga Ram was conducted on 4-3-1980 at 1. 00 p. m. He was aged about 50 years and about 36 hours had passed since he died. 8. The following ante-mortem injuries were found on the person of deceased Ganga Ram: (i) Punctured wound 1 cm x. 75 cm x thorasic cavity deep on the left side front of chest. 5 cm from left nipple at 11. 00 Oclock position. (ii) Incised wound 1. 0 cm x 0. 5 cm on the right upper arm inner aspect in middle. (iii) Incised wound 0. 5 cm x 0. 50 cm x muscle on the back of right upper arm upper third. (iv) Incised wound 1 cm x 1 cm on the outer aspect of left upper arm upper third. (v) Abraded contusion 6 cm x 4 cm on the front of right leg upper third. (vi) Lacerated wound 2 cm x. 5 cm x muscle on the front of left knee joint. 9. On internal examination, it was found that the left pleura left lung and ascending aorta were punctured under injury No. 1. 10. The death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. 11. The autopsy on the dead body of Nanhakoo was conducted the same day at 2. 30 p. m. He was aged about 40 years and about 36 hours had passed since he died. The following ante-mortem injuries were found on the person of deceased Nanhakoo : (i) Lacerated wound 5 cm x 1 cm on the right side of the head 10 cm above right ear. (ii) Punctured wound 1 cm. x. 5 cm x thorasic cavity deep on the back of left side of chest, 26 cm below shoulder joint. On exploration the pleura and left lobe of lung found cut in front and inferior most limit. (iii) Punctured wound 1. 5 cm 1. 5 cm x thorasic cavity deep on the left side front of chest at 3 O clock position, 4 cm lateral to left nipple. (iv) Abraded contusion 3 cm x 2. 5 cm on the right side back of chest. (v) Abraded contusion 4 cm x 2. (iii) Punctured wound 1. 5 cm 1. 5 cm x thorasic cavity deep on the left side front of chest at 3 O clock position, 4 cm lateral to left nipple. (iv) Abraded contusion 3 cm x 2. 5 cm on the right side back of chest. (v) Abraded contusion 4 cm x 2. 5 cm on the right side back of chest, 13 cm below injury No. (iv ). 12. On internal examination, the left pleura, left lung as well as ascending aorta were found punctured under injuries No. 2 and 3. 13. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. Dr. V. P. Agrawal PW 6 also opined that the anti-mortem injuries sustained by the two deceased had been caused by the spears and lathis and the same were sufficient to cause death in ordinary course. 14. Inter se relationship amongst themselves was admitted by the accused-appellants but they denied that any incident had occurred on 22-2-1980 and any enmity prevailed on that account. They pleaded false implication on account of party factions. 15. Apart from medical evidence and that relating to the investigation of the case, the prosecutions star witnesses were Mathura Prasad PW 1 injured and Shanker Lal PW 2 examined as eye-witnesses. Since the evidence of the prosecution found favour with the learned trial Judge, he recorded the impugned judgment of conviction which is under challenge before us on behalf of the convicted accused- appellants. 16. We have heard Sri P. N. Lal, Advocate assisted by Sri S. B. Kochar for the accused-appellants and Sri A. K Bhatt, learned A. G. A. from the side of the State in opposition of the appeal. The record has also been summoned before us which we have carefully perused. 17. The first submission of the learned counsel for the accused-appellants is that incised wounds found on the person of Ganga Ram (ante-mortem injuries No. 2, 3 and 4) could not have been caused by spears allegedly wielded by Khushali Ram and Ram Bhajan and as such the prosecution case was falsified. The argument may seem to be appealing at the first blush, but it does not stand a close scrutiny. It is to be pointed out that ante-mortem injuries No. 2, 3 and 4 (incised wounds) on the person of Ganga Ram were on arms. The argument may seem to be appealing at the first blush, but it does not stand a close scrutiny. It is to be pointed out that ante-mortem injuries No. 2, 3 and 4 (incised wounds) on the person of Ganga Ram were on arms. Whenever weapon is used against the victim, as a natural instinct he tries to ward off those blows through his hands. It was, therefore, not unusual that arms of Ganga Ram came in contact with edges of the spear. Thus, having regard to the seats and size of incised wounds suffered by Ganga Ram, they could have very well been caused by spears. We note that a suggestion was given to the Doctor that incised wounds could not be caused by pointed spear. True, if the spear had no edges on its sides, there could be no occasion for sustaining incised wounds ordinarily. But weapon of offence was not recovered and there is no room for jumping to this conclusion by speculation that spear with which Ganga Ram sustained these wounds was a pointed one or with no edges at its sides. It cannot be gainsaid that apart from round and pointed spears, there are such spears too which have sharp edges on sides in addition to the pointed tip. It would be noted that injury No. 1 of Ganga Ram and injuries No. 2 and 3 of Nanhakoo were punctured wounds which could definitely be caused by spears. Injuries of Mathura Prasad and injuries No. 5 and 6 of Ganga Ram as also injuries No. 1,4 and 5 of Nanhakoo were contusions and lacerated wounds which could have been caused by lathis. The sustaining of incised wounds on the arms by Ganga Ram stands explained, as we have indicated above. Therefore, there is no force in the argument that incised wounds could not be sustained by Ganga Ram. As a matter of fact, the injured Mathura Prasad PW 1 and two deceased sustained injuries of lathis and spears. It would be recalled that Anokhey Lal and Naresh wielded lathis whereas Khushali Ram and Ram Bhajan made use of spears as is the testimony of Mathura Prasad PW 1 injured and Shanker Lal PW 2. 18. As a matter of fact, the injured Mathura Prasad PW 1 and two deceased sustained injuries of lathis and spears. It would be recalled that Anokhey Lal and Naresh wielded lathis whereas Khushali Ram and Ram Bhajan made use of spears as is the testimony of Mathura Prasad PW 1 injured and Shanker Lal PW 2. 18. The next argument of the learned Counsel for the accused-appellants is that no fire-arm injury was sustained either by the deceased or by Mathura Prasad PW 1 as per the own case of the prosecution. True, the testimony of the eye-witnesses is that Rameshwar Dayal opened fire, but the shot did not hit any one. He (Rameshwar Dayal) was not related to the remaining four accused-appellants who were uncle and three nephews-real brothers. He had no direct animus with the deceased or with Mathura Prasad. At times, one is implicated simply because he is supposed to be of the group of real culprits. Therefore, on global consideration, the benefit of doubt should be afforded to the accused -appellant Rameshwar Dayal, it being doubtful that he actually participated in the commission of the crime. Therefore, non-sustaining of fire-arm injury by anyone would gain so much allowance in favour of the accused-appellant Rameshwar Dayal. 19. Another argument of the learned Counsel for the accused-appellants is that in the inquest reports, names of the accused and the weapons were not mentioned by the Investigating Officer. It should be pointed out in this regard that the object of holding inquest is to make the investigation and to draw up a report of the apparent cause of death describing wounds, fractures and other marks of injuries, as may be found on the dead body. It is not necessary that the names of the assailants or names of witnesses should be contained in the inquest reports. It has come in evidence that inquest reports were prepared by S. I. Jaibir Singh PW 4 while interrogation of the witnesses was done by S. I. Ram Lakhan Singh PW 7. Both were engaged in their own work and there was actually no occasion for S. I. Jaibir Singh PW 4 to record the names of the assailants and the witnesses and the weapons of offence. It is not even the requirement of law. Both were engaged in their own work and there was actually no occasion for S. I. Jaibir Singh PW 4 to record the names of the assailants and the witnesses and the weapons of offence. It is not even the requirement of law. It has also been urged by the learned counsel for the accused-appellants that in the challans of the dead bodies, the time of the death was not noted down and it was written Agyat (not known ). Actually, S. I. Jaibir Singh had not interrogated the witnesses himself and was entrusted with the work of preparing inquest reports. Therefore, he could not have known as to what the witnesses had stated to the Investigating Officer about the time of death. The appellants do not score any point on this premise. 20. Learned Counsel for the accused-appellants then urged that the incident had taken place in the night and not at 8. 00 a. m. on 3-3-1980. He pointed out that no faecal matter was found in the intestine of Ganga Ram and Nanhakoo which, according to him, indicated that they were not going to attend the call of the nature and had actually been murdered in the night time. He reasoned that it also falsified the prosecution story and the testimony of Mathura Prasad PW 1 that he with his uncle Ganga Ram and Nanhakoo was going to answer the call of nature at 8. 00 a. m. when the incident took place. In our opinion, the argument of incident having taken place under the cover of darkness is self-defeating and self-contradictory. It overlooks the fact that even in night, faecal matter would have been there in the intestine. On the intestine condition of the deceased, it cannot be argued that the incident took place in the night. 21. Further, the medical examination of Mathura Prasad PW 1 on 3-3-1980 at 12. 45 p. m. by Dr. Mahesh Kumar Arya PW 5 throws flood of light on the point in issue. The Doctor reported his injuries to be fresh viz. , at the most six hours old. That means to say, the time of the incident could not be before 7. 00 a. m. on 3-3-1980. 45 p. m. by Dr. Mahesh Kumar Arya PW 5 throws flood of light on the point in issue. The Doctor reported his injuries to be fresh viz. , at the most six hours old. That means to say, the time of the incident could not be before 7. 00 a. m. on 3-3-1980. It is found that, in the post mortem reports of two deceased, stomach and small intestine have been reported to be empty but small amount of faecal matter sticking to the walls was there in large intestine. Mathura Prasad PW 1 stated that they were accustomed to attend to the call of nature around 8. 00 a. m. Faecal matter was not altogether absent from the large intestine of the two deceased. The word small has a relative or comparative value. In the case of both the deceased, the Doctor used the same phraseology in respect of large intestine, "small amount of faecal matter is sticking to the walls. " No further elucidation was sought from the Doctor in his cross-examination on the intestine condition of the two deceased. At any rate, the intestine condition could not be a sure guide to determine the time of incident with mathematical accuracy or to discredit ocular evidence. 22. Our impression is that the testimony of Mathura Prasad PW 1 and Shanker Lal PW 2 has the ring of truth. Mathura Prasad PW 1 is the injured of the felony also and as such, his presence at the spot is beyond question. He testified that he was going with the two deceased persons to attend the call of nature when the accused-persons emerged from the wheat field of Shanker Lal and pounced upon them. According to him, Nanhakoo died at the spot and Ganga Ram died on his way to the hospital. Shanker Lal PW 2 testified that he had gone to his field for collecting grass-greenary and had seen the accused-appellants emerging from the field and attacking the victims. On these material aspects, the testimony of both eye-witnesses is quite consistent. 23. According to him, Nanhakoo died at the spot and Ganga Ram died on his way to the hospital. Shanker Lal PW 2 testified that he had gone to his field for collecting grass-greenary and had seen the accused-appellants emerging from the field and attacking the victims. On these material aspects, the testimony of both eye-witnesses is quite consistent. 23. Having carefully considered the arguments of the learned Counsel for the accused-appellants in the light of the evidence on record and concomitant circumstances, we do not find any merit in any of them, excepting that benefit of doubt has to be extended to the accused-appellant Rameshwar Dayal for the reasons mentioned hereinabove as it is doubtful that he actually participated in the commission of this crime. What is proved on record is that the remaining four accused-appellants Anokhey Lal and his three nephews Naresh, Khushali Ram and Ram Bhajan committed double murder of Ganga Ram and Nanhakoo and voluntarily caused simple hurt to Mathura Prasad PW 1. They were acting in concert with previous meeting of minds and in furtherance of their common intention. The offence was committed with pre-planning. 24. We should say a word here that Supreme Court had held in the case of Amar Singh v. State of Haryana, AIR 1973 SC 2221 , that when the accused is charged with offence under Section 302 read with Section 149 I. P. C. the conviction under Section 302 I. P. C. read with Section 34 I. P. C is legal. As per the Apex Court, when the facts proved and the evidence adduced would have been the same if the accused had been charged under Section 302 I. P. C. read with Section 34 I. P. C. in such a case failure to charge the accused with the aid of Section 34 I. P. C. does not result in any prejudice. The present case falls in this category. 25. In the net result, we partly allow this appeal as indicated below: (1) The conviction and sentence of the accused-appellants Anokhey Lal, Naresh, Khushali Ram and Ram Bhajan are converted under Section 302 I. P. C. read with Section 34 I. P. C. with the sentence of life imprisonment to each of them and under Section 323 read with Section 34 I. P. C. with sentence of one years rigorous imprisonment. Both the sentences shall run concurrently. Both the sentences shall run concurrently. (2) The conviction and sentence passed against accused-appellant Rameshar Dayal are set aside and he is acquitted. 26. The accused-appellants Anokhey Lal, Naresh, Khushali Ram and Ram Bhajan are on bail. C. J. M. , Pilibhit shall cause them to be arrested and lodged in jail to serve out the sentences passed against them. 27. Judgment be certified to the lower Court immediately for reporting compliance to this Court within two months from the date of receipt of a copy of this order. Appeal partly allowed. .