U. S. TRIPATHI, J. ( 1 ) THIS appeal has been directed against the judgment and order dated 20. 11. 1981, passed by additional Sessions Judge, Lalitpur in Sessions Trial No. 112 of 1979, convicting them under section 302/149 I. P. C. and sentencing each of them to undergo imprisonment for life and further convicting them under Section 323/149 and sentencing them to undergo R. I. for a period of four months each. Appellants Jasuwa, Chhandiya, Oundiya and Jhagru were further convicted under section 148 I. P. C. and sentenced to undergo R. I. for a period of two years. Appellants Nathuwa and Parbhuwa were further convicted under Section 147 I. P. C. and sentenced to undergo R. I. for a period of 18 months. AH the sentences were ordered (sic)un concurrently. ( 2 ) THE prosecution story, briefly stated, was that Smt. Kaliya (PW2) was married with Punua (PW1 ). She lived with Punua for about seven years. Thereafter she went to her parents house. The lather of Smt. Kaliya sold her to appellant Chhandia for Rs. 500/-and she was forced to go with him. There she lived as wife of appellant Chhandia for about two years. When she came to her parents house in connection with marriage of her younger sister she called Punua (PW1) and asked him to take her with him as she wanted to live with him. Punua (PW1) brought her to his house and she was living with him as his wife. ( 3 ) ON the night of 29/30-5-1979, Punua (PW1), Bandoo (PW4), Tulsi deceased, Sundar, Pukkha along with two children were sleeping on different Charpais in front of their house. A lighted lamp was kept there. Smt. Kaliya (PW2) was sleeping inside the house, At about 2. 00 a. m. appellants Jasuwa armed with Luhangl, Chhandia, Jhagru and Gundiya armed with Kulhari, prabhua and Nathuwa armed with lathis along with Dhilloo, Santua and Lala Ram (since acquitted by the trial court) all armed with lathis entered into the boundary of house of Punua (PW1) by removing Tattar. Punua (PW1) and others awoke hearing barking of dog. Appellant bundiya inflicted Kulhari blow on Punua (PW1 ). then he (Punua) inflicted lathi blow on him. Jhagru inflicted Kulhari blow and other Appellants inflicted lathi blows. Appellant Chhandiya asked Punua to bring Smt. Kaliya. The appellants also inflicted lathi blows on Tulsi deceased. Punua (PW1) and others awoke hearing barking of dog. Appellant bundiya inflicted Kulhari blow on Punua (PW1 ). then he (Punua) inflicted lathi blow on him. Jhagru inflicted Kulhari blow and other Appellants inflicted lathi blows. Appellant Chhandiya asked Punua to bring Smt. Kaliya. The appellants also inflicted lathi blows on Tulsi deceased. Bandu (PW4) and Pukkha. Hearing the shrieks of Punua and others Chiple (PW6) and other villagers rushed to the spot and on their challenge appellants ran away. The appellants were recognized by the witnesses in the light of lamp and light of torches possessed by Tulsi and the appellants. ( 4 ) PUNUA (PW1) arranged a bullock cart and taking injured including Tulsi deceased proceeded to the police station Bar. In the way Tusi died. Oral report of the occurrence was lodged by punua (PW1) at P. S. Bar at 7. 45 a. m. on 30. 5. 79. Chick F. I. R. was prepared by Constable moharrir Harihar Singh (PW13), who made an endorsement of the same at G. D. report and registered a case against the appellants. ( 5 ) INVESTIGATION of the case was taken up by Baboo Ram Sharma (PW7 ). He conducted inquest of the dead body of Tulsi deceased, sealed the dead body and sent it for post mortem? He interrogated Punua (PW1) and Smt. Kaliya (PW3 ). Injured Bandu (PW4) and Punua (PW1) were medically examined at Primary Health Centre, Bar at 8. 15 and 8. 20 respectively by Dr. B. P. Bansal (P W10), who found following injuries on their person:-Injuries of Bandu : 1. Swelling over right fore arm 10 cm above wrist joint. Swelling was tender. On observation fracture was suspected. 2. Small abrasion 1 cm x 1 cm over and right clavicle 7 cm away from sterno clavicular joint. 3. Contusion 6 cm x 1 cm over left side of back 3 cm below left angle of scapula. 4. Contusion 5 cm x 1 cm over left scapula 2 cm above the angle of scapula. 5. Four small contusion about 2 cm x 1 cm over right hip. ( 6 ) LACERATED wound 1 cm x 1/2 cm x scalp deep 4 cm above the right eye brow. ( 7 ) LACERATED wound 2 cm x l/2 cm x scalp deep 4 cm above right eye brow. 6. Injury No. 1 kept under observation. 5. Four small contusion about 2 cm x 1 cm over right hip. ( 6 ) LACERATED wound 1 cm x 1/2 cm x scalp deep 4 cm above the right eye brow. ( 7 ) LACERATED wound 2 cm x l/2 cm x scalp deep 4 cm above right eye brow. 6. Injury No. 1 kept under observation. No. 2 to 7 were simple. All the injuries were carried by blunt object and about one day old. 7. On X-ray examination of right fore arm of Bandoo old fracture of shaft of ulna with dense callus and faint fracture line was seen. Injuries of Putma ; 1. Incised wound 3 1/2 cm x 1 cm x 1/2 cm deep over lateral side of canthus of left eye. 2. Contused wound 1 cm x 1 cm above mid of left eye brow. 3. Lacerated wound about 12 cm below left elbow joint over lateral aspect of left fore arm. 4. Complain of pain in right fore arm but no injury was seen. 5. Irregular bruises over left shoulder 3 cm x 3 cm area. 6. Complain of pain over left calf, muscle. No sign of injury seen. ( 8 ) INJURY No. 1 was simple, caused by sharp cutting weapon and about one day old. Injury No. 2,3 and 5 were simple, caused by blunt object and about one day old. ( 9 ) INJURED Pukkha was medically examined on 1. 0. 1979 at District Hospital Tikamgarh (M. P) at 4. 50 p. m. by Dr. O. P. Pavaiya (PW9), who found following injuries on his person: (1) Abrasion 1 cm x 1 cm over right collar bone. (2) Abrasion 2 cm x 2 cm over mid scalp. ( 10 ) BOTH injuries were caused by hard and blunt object, simple in nature and 72 to 80 hours old. ( 11 ) AUTOPSY on the dead body of Tulsi deceased was conducted on 31. 5. 1979 by Dr. H. N. Srivastava (PW3), who found following ante mortem injuries on his person : 1. Lacerated wound 3 cm x 2 cm x bone deep on left side on parietal region of head, margins lacerated and longitudinal. 2. Lacerated wound 3 cm x 2 cm x bone deep on middle of front of parietal region. Margins lacerated and longitudinal. 3. H. N. Srivastava (PW3), who found following ante mortem injuries on his person : 1. Lacerated wound 3 cm x 2 cm x bone deep on left side on parietal region of head, margins lacerated and longitudinal. 2. Lacerated wound 3 cm x 2 cm x bone deep on middle of front of parietal region. Margins lacerated and longitudinal. 3. Lacerated wound 2 cm x 1 cm x bone deep on right parietal region. Margins lacerated and fracture seen. 4. Two abrasions on left upper part of neck of size of 1. 2 cm x 1 cm. 5. Abrasion in left supra clavicular fossa 1. 2 cm x 1 cm. 6. Two abrasions just below left nipple of the size 3 cm x 2 cm. 7. Punctured lacerated wound 2 cm x 3 cm x 4 cm on outer arm 5 cm above from elbow joint. 8. Abrasion 1. 2 cm x 1. 2 cm on outer aspect of right elbow. 9. Contusion 8 cm x 4 cm on right side of thorax abdominal region on mid axillary. 10. Multiple abraded contusion 1. 2 cm x 1 cm x 1. 5 cm x 1 cm on whole of back. ( 12 ) INTERNAL examination showed fracture of right parietal bone under injuries 2 and 3. Membranes were ruptured and congested. Brain was congested and clotted blood seen. Base of skull was fractured on right side. Third rib on right side was fractured under injury No. 9. Liver was ruptured on right side under injury No. 9, 4 cm x 3 cm. Cause of death was result of head injury and vital injury. ( 13 ) THE I. O. completed remaining investigation and challaned appellants as well as Dhilloo, shantoo and Lala Ram. ( 14 ) COGNIZANCE of the case was taken by the Magistrate who committed the case to the Court of sessions. ( 15 ) THE prosecution examined Punua (PW1), Smt. Kaliya (PW2), Dr. H. N. Srivastava (PW3), badoo (PW4), Chiple (PW6), Babu Ram Sharma I. O. (PW7), Dr. O. P. Pavaiya (PW9), Dr. B. P. Bansal (PW10) and Constable Harihar Singh (PW13 ). Affidavits of Govind Singh (PW5), constable Udai Bhan Singh (PW8), Pritam Lal Vishwakanna (PW11) and constable Ghan shyam Das (PW12) were also filed. The appellants did not adduce any evidence in their defence. O. P. Pavaiya (PW9), Dr. B. P. Bansal (PW10) and Constable Harihar Singh (PW13 ). Affidavits of Govind Singh (PW5), constable Udai Bhan Singh (PW8), Pritam Lal Vishwakanna (PW11) and constable Ghan shyam Das (PW12) were also filed. The appellants did not adduce any evidence in their defence. ( 16 ) LEARNED Sessions Judge considering evidence of the prosecution held that the prosecution established the guilt of appellants Jasuwa, Chhandia, Jhagru, Bundiya, Prabhua and Nathua and convicted and sentenced them as mentioned above. Accused Dhilloo, Shantua and Lala Ram were acquitted. ( 17 ) AGGRIEVED with their conviction and sentence the appellants have come up in this appeal. ( 18 ) APPELLANT Gundiya died during pendency of appeal and the appeal preferred by him stood abated. ( 19 ) WE have heard Sri Apul Misra, learned counsel for the appellants and learned AGA for the respondent and have perused the evidence on record. ( 20 ) LEARNED counsel for the appellants contended that the motive alleged by the prosecution was weak and false implication was more probable. There was no sufficient light on the spot and recognition of the appellants was not possible. Three appellants were assigned role of causing injuries by Kulhari but on incised wound was received by the deceased or any injured and that the appellants had no intention to kill Tusli deceased but they wanted to take back Smt. Kaliya. ( 21 ) THE motive alleged by the prosecution was that Smt. Kaliya was previously married with punua (PW1) and lived with him for about 4-5 years. Thereafter when she went to her parents house, her father demanded a sum of Rs. 500/- from Punua, but he could not pay. Therefore, he sold Smt. Kaliya to appellant Chhandia for a sum of Rs. 500/- and she was forced to go with him. Thereafter when Smt. Kaliya came to her parents house in connection with the marriage of her younger sister, she called Punua (PW1) and came with him. The above motive was proved by Punua (PW1) and Smt. Kaliya (PW2 ). The suggestion given by above witnesses was that Smt. Kalia had brought ornaments of appellant Chhandia which he demanded back but Punua refused to give the same and falsely implicated him and other appellants. This shows that the motive alleged by the prosecution is admitted to the appellants. The suggestion given by above witnesses was that Smt. Kalia had brought ornaments of appellant Chhandia which he demanded back but Punua refused to give the same and falsely implicated him and other appellants. This shows that the motive alleged by the prosecution is admitted to the appellants. As many as three persons were injured in the incident and Tulsi deceased lost his life. The appellants who were six in number raided the house of Punuwa (PW1) in the odd hours of night and according to the prosecution their object was to take back Smt. Kaliya. Assuming that they had come to take back ornaments of Smt. Kaliya which she had brought from the house of appellant Chhandia, the appellants had motive to cause injuries to the deceased and other injured. Therefore, the motive alleged by the prosecution was sufficient. ( 22 ) THE prosecution had relied on the ocular testimony of Punua (PW1), Smt. Kaliya (PW2), bandoo (PW4) and Chiple (PW6 ). Punua (PW1) and Bandoo (PW4) were injured witnesses. Pukkha the brother of Punuwa (PW1) had also sustained injuries. According to above witnesses they were sleeping out side their house and Smt. Kaliya (PW2) was sleeping inside the house. The occurrence took place at about 2. 00 a. m. in the night. The presence of above witnesses out side and inside the house was thus natural and probable. The injuries on the above witnesses also confirmed their presence on the spot. Chiple (PW6) stated that he reached the spot hearing alarm of Punua and others and saw the occurrence. He is resident of the same village and in all probabilities would have come to the spot hearing shrieks of Punua and others. Therefore, the presence of above ocular witnesses on the spot was natural and probable. There is nothing in their cross examination to show that they were deposing falsely. Except certain discrepancies nothing could be elicited from their cross examination. The discrepancies pointed out were minor and not material and such sort of discrepancies were bound to occur as the witnesses were illiterate and rustic villagers. ( 23 ) ALL the ocular witnesses have stated that a lighted lamp was kept near the Charpai of witnesses and that Tulsi deceased was also having torch. The appellants were flashing their torches during commission of incident. ( 23 ) ALL the ocular witnesses have stated that a lighted lamp was kept near the Charpai of witnesses and that Tulsi deceased was also having torch. The appellants were flashing their torches during commission of incident. The occurrence had taken place in open place and the appellants were known to the prosecution witnesses. The witnesses were accustomed to live in dim light and, therefore, they were in a position to recognize the appellants even in dim light of lamp and flash of torches. Two of the witnesses were injured and had come into close contact of the appellants. Chiple (PW6) had also come near the appellants. Smt. Kaliya (PW2) stated that when Punua and others were being assaulted she came out of her house and saw the occurrence from behind brick kiln. Therefore, there was sufficient light on the spot and the witness had full opportunity to recognize the appellants who were known to them from before. ( 24 ) THREE appellants namely, Chhandia, Jhagru and Gundiya were assigned role of causing injuries with Kulhari. According to evidence of Dr. H. N. Srivastava (PW3), injury No. 7 of Tulsi deceased was punctured lacerated wound. Dr. Srivastava clarified in his cross examination that the above injury could be caused by the edge of Kulhari. Injury No. 1 of Punua was incised wound 3 1/2 cm x 1 cm x 1 cm deep over face. These injuries in all probabilities could be caused by Kulhari and injury No. 1 of Punua being on bony part had no more depth. Therefore, the medical evidence also supports ocular version. ( 25 ) IT was further contended by the learned counsel for the appellants that three of the accused namely, Dhilloo, Santua and Lala Ram were acquitted, which showed that their participation was false, The learned Sessions Judge found that these accused were not named in the F. I. R. and they were acquitted, giving benefit of doubt. The case of the above accused was distinguishable from the appellants. The acquittal of three accused will not affect the case of the prosecution regarding complicity of appellants as principle of falsus in uno falsus in omnibus is not applicable and complicity of appellants has to be considered in the light of evidence "of ocular witnesses. The case of the above accused was distinguishable from the appellants. The acquittal of three accused will not affect the case of the prosecution regarding complicity of appellants as principle of falsus in uno falsus in omnibus is not applicable and complicity of appellants has to be considered in the light of evidence "of ocular witnesses. The evidence of ocular witnesses clearly established the complicity of the appellants and, therefore, acquittal of three accused has no effect on the complicity of appellants. ( 26 ) IN this way we find that the testimony of ocular witnesses is worthy of credence and supported by medical evidence, F. I. R. and other circumstances of the case. Therefore, the complicity of appellants has been established. ( 27 ) LASTLY the learned counsel for the appellants contended that the appellants had no common object to kill Tulsi, but their common object was only to take back Smt. Kaliya. Having considered the facts and circumstances of the case and the motive alleged by the prosecution, we find that the common object of the appellants was to take back Smt. Kaliya and in that attempt when Punua (PW1) resisted the injuries on the deceased and injured persons were caused. It is also clear from the evidence of Smt. Kaliya (PW2) that Chhandia appellants and others had attempted 5-6 times earlier to take her back. In these circumstances, we find that the appellants had no common object to kill Tulsi deceased, but they caused injuries on him knowing that his death might be caused. Therefore, the offence falls within the purview of Section 304 Part II read with Section 140 I. P. C. and not under Section 302/149 I. P. C. Thus, the appeal partly succeeds. ( 28 ) THE appeal preferred by appellant Gundiya has already abated. ( 29 ) THE appeal preferred by appellant Jasuwa, Chhandia, Jhagru, Prabhua and Nathua is partly allowed. Their conviction under Section 302/149 I. P. C. and sentence of imprisonment for life is altered under Section 304 Part II read with Section 149 I. P. C. and they are sentenced to undergo r. I. for a period of five years. However, their conviction under Sections 147, 148, 323/149 I. P. C. and sentences on each count awarded by the Trial Court are maintained. ( 30 ) THE appellants ate on bail. However, their conviction under Sections 147, 148, 323/149 I. P. C. and sentences on each count awarded by the Trial Court are maintained. ( 30 ) THE appellants ate on bail. They shall surrender before the C. J. M. Lalitpur to serve out their sentence. ( 31 ) THE C. J. M. Lalitpur is also directed to procure the arrest of the above appellants except appellant Gundiya, by adopting all processes available under law and send them to jail. ( 32 ) LET a copy of this order be sent to CJM Lalitpur for compliance within a month.