AMAR SARAN, J. ( 1 ) HEARD Sri A. S. Dewakar, learned counsel for the appellants and the learned A. G. A. for the state. ( 2 ) THIS criminal appeal has been filed against the judgement and order passed by the with additional Sessions Judge, Azamgarh dated 19. 11. 1981 convicting the appellant Vindhyachal to 5 years R. I. under Section 307 IPC and 6 months R. I. under Sections 324/34 IPC, appellant Bilas to 4 years R. I. under Sections 307/34 IPC and one year R. I. under Section 324 IPC. The other two appellants Naresh and Sukhari were also convicted under Sections 307/34 and 324/34 IPC, but they have died and their appeal has abated by the order of this Court dated 16. 7. 2004. No further mention of their sentences is needed. ( 3 ) THE Prosecution case was that informant Tufani was cutting 5 trees that he had purchased from one Chanru on 8. 2. 1976 at about 11 a. m. At that time the appellants and the two deceased appellants arrived carrying lathies, spear and gandasi. The appellant Vindhyachal was carrying a spear, while the appellant Bilas was armed with Gandasi. The other two deceased appellants naresh and Sukhari carried lathies. The deceased appellant Naresh pointed out that the informant tufani should be killed, so that his litigation with Naresh could be ended. Thereupon, all the four appellants started assaulting Tufani. On Tufanis cry, the other injured Shanker, Ram Prasad bhar and Ram Palat Koiri, who were cutting trees and Mangal Yadav and Kanhaiya arrived to save Tufani. As Shanker ran in the direction of Tufani, appellant Vindhyachal thrust a spear in his abdomen. The informant Tufani received injury on his wrist and Shanker received a grievous injury in the abdomen. Litigation between Naresh, who was the father of the appellant vindhyachal and informant Tufani was said to be the cause of this incident. Injured Shanker was carried on a cot to police station Mahrajganj, where a report was lodged at 4 p. m. at 8. 2. 1976 by tufani. ( 4 ) SHANKER was examined by doctor R. R. Rai (PW5), Medical Officer, District Hospital, azamgarh on 8. 2. 1976 who found one penetrating wound 1/2" x 3/10" x cavity deep with loop of intestine coming out. The injury was described as serious and fresh. 2. 1976 by tufani. ( 4 ) SHANKER was examined by doctor R. R. Rai (PW5), Medical Officer, District Hospital, azamgarh on 8. 2. 1976 who found one penetrating wound 1/2" x 3/10" x cavity deep with loop of intestine coming out. The injury was described as serious and fresh. Doctor Rai also examined tufani the same day and found one incised wound 1" x l/l0"x skin deep on right fore-arm in front of wrist joint. This injury was described as simple and fresh. Doctor Rai also prepared the injury reports which are Exts. K. a-7 and Ka-8. ( 5 ) A. S. I. Abdur Rasheed (PW4) investigated this case on the basis of the written report of Tufani yadav, after A. S. I. Ram Pyare Pandey prepared a chik report and took the other steps for investigation, such as recording the statement of the witnesses under Section 161 Cr. P. C. , preparing site plan, collecting the blood soaked bandi and gamchha of Shankar and submitted a charge-sheet (Ext. ka-6 ). ( 6 ) A charge under Section 324 read with Section 34 IPC was framed against all the four accused for causing injuries with gandasi to Tufani and a charge under Section 307/34 IPC was framed against the accused, because Vindhyachal caused an injury by spear to Shanker. Specifically a charge under Section 307 IPC simplicitor was also framed against Vindhyachal for causing an injury to Shanker with such intention or knowledge and under such circumstances that by this act if Shanker had died he would have been guilty of murder. The appellants Vindhyachal and Bilas pleaded denial and they claimed to have been falsely implicated on account of enmity. ( 7 ) THREE eye witnesses, PW1 Tufani, PW2 Shanker, who were both injured and (PW3) Kanhaiya have been examined, for supporting the prosecution case. ( 8 ) PW1 Tufani deposed that he was engaged in the business of cutting trees and selling their wood. There was a civil litigation over a field with Naresh in Hakim Pargana. That Vindhyachal is the son of Naresh. The other appellants Sukhari and Bilas belonged to their party. All the appellants belonged to one village. On 8. 2. 1976 at about 11 a. m. , Tufani was getting 5 Babool trees, which he had purchased from Chanru, cut by Shanker, Ram Palat Koiri and Ram Prasad bhar. That Vindhyachal is the son of Naresh. The other appellants Sukhari and Bilas belonged to their party. All the appellants belonged to one village. On 8. 2. 1976 at about 11 a. m. , Tufani was getting 5 Babool trees, which he had purchased from Chanru, cut by Shanker, Ram Palat Koiri and Ram Prasad bhar. At that time, the appellants arrived. Bilas was carrying gandasi, Vindhyachal was armed with spear, and the other two appellants were armed with lathies. Naresh exhorted that Tufani should be killed, as he had engaged in litigation with him. At that time, all the four appellants attacked Tufani. On his cry, the persons, who were cutting trees, arrived and Mangal and kanhaiya also rushed there. Bilas aimed a blow at Tufanis neck, which struck on his right hand. When Shanker rushed ahead to save Tufani, Vindhyachal assaulted him with a spear, which caused a grievous injury in his stomach. Tufanis life was saved, as a result of intervention by the witnesses. He got the report written there on the spot by Shyamraj and affixed his signature, which was marked as (Ext. ka-1 ). After that Shanker was taken on a cot by Tufani, Kanhiaya, surat and Chandrajeet to P. S. Mahrajganj, where the report was lodged. The gamchha and bandi worn by Shankar were taken in possession by the I. O. ( 9 ) PW2 Shanker repeated the same story, about the 5 Babool trees being cut by Tufani, when vindhyachal and other appellants arrived and started assaulting Tufani. When Tufani cried, then he rushed to save Tufani. Vindhyachal thrust a spear in his stomach, which caused Shankars intestine to come out. He was medically examined at the District Hospital in Azamgarh, where he remained admitted for 45 days. There was no litigation between Shankar and Ram Bilas. ( 10 ) PW3 Kanhaiya deposed that on the date of incident at about 11 a. m. he was going to his field. When he came near Chanaras house, he found, Tufani was getting trees in the south of chanarus house cut by Shankar, Palat and Ram Prasad. At that time, Vindhyachal, Sukhari, naresh and Bilas arrived there. On the exhortation of Naresh, Bilas aimed a gandasi blow on the neck of Tufani, which struck his right hand. When Shanker rushed forward to help, Vindhyachal thrust a spear in his stomach. At that time, Vindhyachal, Sukhari, naresh and Bilas arrived there. On the exhortation of Naresh, Bilas aimed a gandasi blow on the neck of Tufani, which struck his right hand. When Shanker rushed forward to help, Vindhyachal thrust a spear in his stomach. Shanker fell as a result of the injury. This incident was also witnessed by Mangal, Surat, Rampher, Chandrajeet. The appellants ran away towards the North east. By then, Shyamraj had arrived. On seeing Shankers grievous injury, Tufani dictated a report to Shayamraj. Thereafter, Kanhaiya, Tufani, Surat and Chandrajeet carried Shanker on a cot to the police station and got the injured medically examined. ( 11 ) IT was contended by the learned counsel for the appellants that the incident has not taken place in the manner alleged, as no blood was found at the spot, even though Vindhyachal is said to have received a grievous spear injury on his stomach, which would have ordinarily caused profuse bleeding. This point was also raised before the trial court and the learned Sessions Judge has rightly observed that as a loop of intestine was coming out of the wound after the spear was thrust on the stomach, too much blood need not have fallen on the ground as there was every likelihood of the injured or his kith and kin placing a cloth or a hand over the wound. It is possible that the passers by may also have trampled the blood fallen on the ground and for those reasons when the I. O. arrived on the spot the next day, he may not have found blood on the ground. In any case this circumstance was not sufficient for dislodging the evidence of the witnesses keeping in view the fact that the incident had taken place at 11 a. m. in the morning, and a report was lodged by 4 p. m. on the same day at P. S. Mahrajganj, which is six miles away. There are two injured witnesses in this case and there is no reason for these witnesses to leave out the real assailants and to have implicated the applicants in this case. There is also no wild exaggeration in this case, as the specific role of assault on Tufani has been assigned to appellant bilas and for assaulting Shanker to the appellant Vindhyachal. There is also no wild exaggeration in this case, as the specific role of assault on Tufani has been assigned to appellant bilas and for assaulting Shanker to the appellant Vindhyachal. ( 12 ) THE next submission raised by the learned counsel for the appellants was that the appellants should be liable for their act and liability for the injuries caused by other appellants should not be attributed to them. There appears to be some substance in this contention of the learned counsel for the appellants, because the incident in question appears to have arisen out of a sudden quarrel between the parties over cutting of the babool trees, and in these circumstances convicting both the appellants under Section 307 with the aid of Section 34 would not be proper. No common intention could be attributed to the appellants for the injury caused by the other appellant. ( 13 ) SO far as the appellant Bilas is concerned, he has also be been charged under Section 324 simplicitor for causing an injury with gandasi to Shanker. This injury was only incised wound 1 x 1/10 inch x skin deep on the right arm front (wrist joint front) medial part. This injury was found to be simple and was caused by some sharp object. In the F. I. R. there is no mention that the appellant Bilas tried to assault Tufani on the neck, but he (Tufani) mentions receiving this injury on his right wrist joint. There does appear to have been some kind of sudden quarrel and the appellants version that all the four accused persons (including the deceased appellants naresh and Sukhari) assaulted Tufani, does not appear to be correct. As Tufani has only received the above mentioned single injury on his wrist joint, I think it would be improper to hold Bilas guilty under Section 307 read with Section 34 IPC for causing injuries to Shanker. Also I find, there was absolutely no repetition of blows by Bilas on Tufani and he appears to have had no intention of killing Tufani, even though there was none to prevent him from repeating his blows with the gandasi on Tufani. ( 14 ) ALSO there is evidence in this case that Shanker arrived later when there was a cry from tufani and only appellant Vindhyachal thrust a spear in his stomach. ( 14 ) ALSO there is evidence in this case that Shanker arrived later when there was a cry from tufani and only appellant Vindhyachal thrust a spear in his stomach. I find that the main dispute and litigation was between Naresh, father of the appellant Vindhyachal and Tufani. So far as sukhari and Bilas were concerned, they were not relations of Tufani. They are only said to be of the same gol (party) of Tufani. Therefore, if at the spur of the moment, when Shanker rushed in the direction of the appellants, the appellant Vindhayachal gave a spear blow in his stomach, it cannot be said with any degree of certainty that the appellant Bilas shared a common intention with Vindhyachal for causing an injury to Shanker. In this view of the matter, the appellant Bilas is acquitted of the charge under Section 307 read with Section 34 IPC for attempting to murder shanker and he is only convicted under Section 324 IPC simplicitor for causing the injury to tufani. ( 15 ) AS this matter has become very old, the incident having taken place on 8. 3. 1976 and more than 28 and 1/2 years have elapsed thereafter, that moreso when two appellants have even died in the meanwhile, it would not be proper to send the appellant Bilas to jail at this stage and the imprisonment under Section 324 IPC is reduced to the period already undergone. ( 16 ) HOWEVER so far as the appellant Vindhyachal is concerned, the direct role of assaulting shanker with spear was assigned to him. There is absolutely no evidence or finding that both bilas and Vindhyachal had caused the injury to Shanker, which was described as grievous in nature, which had caused the intestine to protrude out and the said injury could be the cause of death of Shanker. The main dispute was also between Naresh and Tufani and Vindhyachal son of naresh might have been angered by the sudden intervention of Shanker in this dispute resulting in his assault on Shanker. ( 17 ) THE learned counsel for the appellants has contended that no specific question was put to the appellant Vindhyachal that he had caused the injury with the intention of causing the death of shanker with the spear. In this connection, certainly a question was put under Section 313 Cr. ( 17 ) THE learned counsel for the appellants has contended that no specific question was put to the appellant Vindhyachal that he had caused the injury with the intention of causing the death of shanker with the spear. In this connection, certainly a question was put under Section 313 Cr. P. C. that Vindhyachal thrust a spear in the stomach of Shanker, which caused an injury to him. Although, it was not mentioned in so many words that the injury was caused intending Shankers death. However, in the charge, it was clearly mentioned that Vindhyachal had caused hurt with a spear to the said Shanker with such intention or knowledge and under such circumstances, if by that act, Shanker had died, thereby an offence of attempt to commit murder punishable under section 307 IPC would have been committed. Therefore, merely because it was not specifically put to Vindhyachal under Section 313 Cr. P. C, that his assault had caused an injury which was dangerous to life, it cannot ipso facto be inferred that the conviction of Vindhyachal under section 307 IPC was illegal. The counsel for the appellants cited the case of Sharad Birdhichand sarda v. State of Maharashtra, AIR1984 SC 1622 , (1984 )86 bomlr536 , 1984 Crilj1738 , 1984 (2 )SCALE445 , (1984 )4 SCC116 , [1985 ]1 SCR88. In this case, the circumstance of absconding which was used against the appellant by the High court, had not been put to him. The Honble Supreme Court held that it was necessary to put that circumstance to the accused. Here I find that basically the circumstance has been put to the appellant Vindhyachal and, in fact, the facts are in the knowledge of the appellant, especially in view of a clear charge against him about the case that he had faced, hence the case of Sharad birdichand Sarda is distinguishable. ( 18 ) FOR the aforesaid reasons the appellant Vindhyachal has rightly been convicted under Section 307 IPC. However, I have already held above that in view of the sudden nature of the quarrel and sudden movement of the injured persons, no common intention for committing the offences alleged was made out against the appellants and they should be convicted for their individual acts alone. However, I have already held above that in view of the sudden nature of the quarrel and sudden movement of the injured persons, no common intention for committing the offences alleged was made out against the appellants and they should be convicted for their individual acts alone. ( 19 ) IN this view of the matter, the conviction of the appellant Vindhyachal under Section 324 read with Section 34 IPC is set aside, and the conviction of Vindhyachal is only maintained under Section 307 IPC. However as over 24 years expired since the examination of appellant vindhyachal under Section 313 Cr. P. C in 1981. At that time he was only 27 years old. He must have become over 50 years in age. ( 20 ) IN this view of the matter, I think that ends of justice would be served, if the sentence of appellant Vindhyachal under Section 307 IPC is reduced from five years R. I. to three years R. I. The appellant Vindhyachal who is on bail shall be taken into custody forthwith to serve out the remaining part of the sentence awarded to him. The sentence of appellant Bilas under Section 307/34 IPC is set aside. He is sentenced to the period already undergone by him under Section 324 IPC. He is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender before the trial court. ( 21 ) THE appeal is partly allowed as above. . .