REKHA KUMARI, J.:–The above two appeals are directed against the judgment dated 16.1.1988 passed by Shri Nawal Kishore Singh, 8th Additional Sessions Judge, Sasararn in Sessions Trial No. 563/ 81 of 1977/1983 by which he has convicted all the appellants under Section. 302/149 IPC for the murder of the deceased Kameshwar and has further convicted all the appellants except appellants Tetri Devi and Keshri Devi under Section 307 IPC for attempting the commit the murder of Kishun Singh and has sentenced all the appellants to undergo rigorous imprisonment for life under Section 302/149 IPC and has further sentenced the appellants convicted under Section 307 IPC to undergo rigorous imprisonment for ten years with a direction that the sentences against the appellants would run concurrently. 2. As both the appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. 3. It appears that there were four appellants, namely, Sarju Ahir, Ram Bachan Ahir, Tetri Devi and Keshri Devi, who died during the pendency of this appeal and so the appeal against them stands abated. 4. The prosecution case, as disclosed from the FIR, is that one day prior to the occurrence Kameshwar, the son of the informant Ramchela Das has gone to Bhabhua to inform him that the appellant Sarju Ahir along with some villagers wanted to commit mischief with regard to his land on which the wheat crops were raised. On this, the informant had advised his son not to go to that field. On 28.3.1975 i.e. the date of occurrence at about 8 A.M., the informant was coming to his village Pewandi and when he reached ahead of Christian mission, he saw his son Kameshwar and Samdhi of Tribeni Sah fleeing from the side of the village Pewandi and some villagers chasing them with lathi, bhala and when his son reached the field of one compounder on the brother of village Pewandi, appellant Sheopujan Ahir assaulted him with iron rod on his hand in the back and he fell down. The informant hid himself in the house of Mahanth Rai and saw that after his son fell down, the Samdhi of Tribeni Rai fled towards the west, and after his son fell down the appellant Laloo Mishra, Vindhyachal Mishra instigated Sarju to kill his son and on this Sarju Ahir, Rambachan Ahir, Ramayan Ahir, Laloo Ahir, Raghu Ahir assaulted his son with lathi. Appellants Nagina Mishra, Daya Mishra, both armed with lathi, Ramji Chaubey with Bhala, Doma Rai, Dudhan Rai with lathi were also present in the mob. It is also alleged that when the Samdhi of Tribeni Rai was fleeing, Vindhyachal Mishra exhorted to kill him when the appellants Ramayan Ahir, Doma Rai, Dudhan Rai chased him. The informant, seeing his son being assaulted, and being fearful that the appellants might assault him, rushed to the Police Station. At the Police Station he thereafter learnt that his son was taken to the hospital where during treatment he died. He further learnt that his wife Laxmi Devi and mother Kaushalya Devi had also come to hospital and that his wife and mother were cutting crops and his son was there when the appellant Sarju Ahir collected the above appellants and chased his son and when the Samdhi of Tribeni Rai, who was there, protested, they also chased him to assault and assaulted him. 5. The informant lodged the F.I.R. at Chenari P.S. which is at a distance of 1 K.M. from the P.O. on the same date at 8.15 A.M. The police investigated the case and after completing investigation submitted charge sheet against the appellants only, showing F.I.R. named accused Vindhyachal Mishra, Lalan Mishra and Nagina Mishra as not sent up for trial. 6. The appellants were charged under Section 302/149 I.P.C. for the murder of Kameshwar and all of them except appellant Tetri Devi and Kesari Devi were charged under Section 307 I.P.C. for attempting the commit murder of Kishun Singh. They pleaded not guilty to the charges. Their defence, as gathered from the suggestions given to the P.Ws. and the documents filed, is that they are innocent and that the above land was in their possession and that on the date of alleged occurrence, i.e. on 28.3.1975 the informant, his son alongwith others were forcibly harvesting the wheat crops. They pleaded not guilty to the charges. Their defence, as gathered from the suggestions given to the P.Ws. and the documents filed, is that they are innocent and that the above land was in their possession and that on the date of alleged occurrence, i.e. on 28.3.1975 the informant, his son alongwith others were forcibly harvesting the wheat crops. When they (appellants) protested, thereupon the prosecution party chased them with lathi, bhala and assaulted Ram Bachan Ahir, Sheopujan Ahir, Raghu Ahir for which Ram Bachan Ahir (since dead) filed a complaint case. 7. The prosecution examined altogether 12 witnesses to prove the charges, P.W.1 Kaushalya Kunwar, the grand-mother of the deceased, P.W.2 Laxmina Devi, mother of the deceased, P.W.3 Ramchela Sah, uncle, the informant, P.W.4 Budhan Beg, P.W.5 Iliyas Beg claim to be the eye witnesses to the occurrence. P.W.6 Gayatri Chaubey is a seizure list witness of the seizure of blood stained earth. He has admitted his signature (Ext. 1/1) on seizure list, but has stated that no blood was seized by the I.O. in his presence. P.W.7 Gopal Caubey, Advocate Clerk, is a formal witness and has proved the F.I.R. (Ext. 2). P.W.8 is Sri Krishna Sah, an injured of this case. P.W.9 Binod Kumar Singh is the I.O. P.W.10 is Dr. Nagendra Prasad, who had examined the injured Sri Krishna Sah. P.W.11 Gopal Chaubey, an Advocate Clerk, is a formal witness and has proved the postmortem report (Ext. 7) and has stated that Dr. R.C. Ram, who conducted the postmortem examination is dead, P.W.12 Ram Sagar Singh, Advocate Clerk, has proved T.I. Chart (Ext. 8) written by Mr. P.N. Verma, Executive Magistrate. 8. The appellants examined four witnesses, out of them D.W.1 Bhaiya Ram Singh, Advocate Clerk, has proved the Injury reports (Exts. A to A/2) issued by Dr. Kumar Baleshwar Prasad Singh, who according to him is dead. D.W.2 Gangadhari Dubey, Advocate Clerk, is also a formal witness and has proved the complaint petition (Ext. B). D.W.3 Mohan Baraji is a formal witness and has proved the rent receipts (Ext. C to C/6). D.W.4 Harihar Rai has simply proved the deed of gift which has been marked as Ext. D with objection. 9. The learned Trial Court after considering the evidence of both the sides convicted the appellants and sentenced them as mentioned above. 10. B). D.W.3 Mohan Baraji is a formal witness and has proved the rent receipts (Ext. C to C/6). D.W.4 Harihar Rai has simply proved the deed of gift which has been marked as Ext. D with objection. 9. The learned Trial Court after considering the evidence of both the sides convicted the appellants and sentenced them as mentioned above. 10. Learned counsel for the appellants submitted that there is no sufficient material on record to hold the appellants guilty. There are vital contradictions in the evidence of the witnesses. The documents show that the appellant Sarju Ahir was in possession of the disputed land and the prosecution party assaulted the appellants but the learned Trial Court without properly appreciating the evidence convicted the appellants. 11. It is an admitted position that on the alleged date and time the deceased was harvesting wheat in disputed field when the occurrence took place. The question hence is how far the prosecution has been able to prove that the occurrence took place in the manner as alleged by the prosecution and how far the learned Trial Court is justified in convicting the appellants under Sections 302/149, 307 I.P.C. 12. P.W.1, the grand-mother of the deceased, has stated that on the alleged date at 7-8 A.M. she was cutting wheat crops. Her daughter-in-law Laxminia and her grand-son Kameshwar (deceased) were with her, when the appellant Sarju came and objected whereupon Kameshwar replied that the crops were grown by him. The appellant Rambachan, Sheopujan and Raghu then came and Kameshwar fled away. The appellant Sheopujan gave a blow by the iron rod on his head. Kameshwar fell down and then Rambachan, Raghu, Sarju assaulted Kameshwar. The appellants Tetri and Keshri also threw brick-bats on Kameshwar hitting him on chest and hydrocele. Kameshwar died. Sri Kishun, Samdhi of Tribeni of her village was passing by that side. He protested when the above appellants assaulted him also. In cross-examination she has stated that Kameshwar was not assaulted in the wheat field but was assaulted 2-3 bighas southwest of that field when he was fleeing. 13. The evidence of P.W.2, the mother of the deceased, with regard to the occurrence is same as P.W.1. She has also stated that she was harvesting the crop with her mother-in-law and son when the occurrence took place. She has further sated that her son was taken to hospital but he died. 13. The evidence of P.W.2, the mother of the deceased, with regard to the occurrence is same as P.W.1. She has also stated that she was harvesting the crop with her mother-in-law and son when the occurrence took place. She has further sated that her son was taken to hospital but he died. In cross-examination she has stated that Kameshwar was assaulted in another field from which Rahar had already been cut. 14. P.W.3 has deposed that on the alleged date at about 8 A.M. he was sitting in the Oryani of the house of one Mahesh Rai when he saw the appellants chasing his son and his son was running towards him and when his son went about 100 yards from him, the appellants started assaulting him. At first the appellant Sheopujan assaulted him with iron rod on the back of his head. His son fell down of that assault. The appellants Vindhyachal, Laloo exhorted to assault and the appellants Raghu, Nagina, Laloo, Ramayan, Sarju assaulted his son. The appellants Ramji Chaubey, Dudhan Rai, Doma Rai, Sheopujan Ahir, Daya Nath Mishra were also with him. His evidence further is that Ramji was armed with bhala and the other appellants were armed with lathi and that the relative of Tribeni Sah protested when the appellants assaulted him also and that he rushed to the Police Station and after some time he learnt that his son died on way to hospital. In cross-examination he has admitted that he had seen the relative of Tribeni Sah being cashed and did not see rim assaulted. 15. P.W.4 Budhan Beg has deposed that on the alleged date at about 7.30 to 8.00 A.M. he was going to harvest his wheat when he saw that appellant Sarjug Ahir and his sons Rambachan Ahir, Sheopujan Ahir and others were chasing Kameshwar who was fleeing towards west and that in that assembly the appellant Raghu Ahir was also present and all the above named persons assaulted Kameshwar. He has stated that he did not see any female member assaulting Kameshwar. He has been declared hostile. In cross-examination he has stated the Kameshwar was assaulted about 100 yards west of the wheat field of Kameshwar. 16. He has stated that he did not see any female member assaulting Kameshwar. He has been declared hostile. In cross-examination he has stated the Kameshwar was assaulted about 100 yards west of the wheat field of Kameshwar. 16. P.W.5 Iliyas Beg has stated that on the alleged date at about 8 A.M. he has in his house when on hearing about quarrel he came out and went towards west and saw that the appellants Sheopujan, Rambachan were chasing Kameshwar westward and then Sheopujan gave a lathi blow on head. Kameshwar fell down. The appellants Rambachan, Sarju, Raghu, Sheopujan then assaulted Kameshwar with lathi and then they ran to assault Shri Kishun Sah and assaulted him. His evidence also is that Tetri and Keshari had also assaulted Kameshwar with brick bats and that Kameshwar died on account of assault on him. In cross-examination he has stated that the assault took place 100 yards south-west of the Boring of Sanjay Singh. 17. P.W.8 Shri Kishun Sah has deposed that on the alleged date at 8 A.M. she was going to his village from Chenari and when he reached near Christian Mission in village Pewandi he saw that 12-13 persons were assaulting Kameshwar and these persons assaulted him also causing fracture on his left arm and injuries on his forehead, leg and other parts of the body. He has stated that the appellants Sarju, Rambachan, Ramayan and Laloo had assaulted him and he was medically examined in Chenari hospital. 18. Thus, from the evidence of the above witnesses, it appears that they are eye witnesses to the occurrence and they all have supported the prosecution case and corroborated each other on material particulars. 19. Among the above witnesses, P.Ws. 1, 2 were harvesting wheat crop alognwith the deceased. They are, hence, competent witnesses. Though they are grand-mother and the mother of the deceased and are interested witnesses, there is nothing in their evidence to disbelieve them on this point. Similarly, though P.W.3 is the informant and an interested witness, there is nothing in his evidence also to discard his testimony. The Fard Beyan (Ext. 2) fully corroborates the testimony of this witness. The Fard Beyan was recorded very promptly at 8.15 A.M. i.e. about within 15 minutes of the occurrence. Hence, there was no chance of concoction in it. Similarly, though P.W.3 is the informant and an interested witness, there is nothing in his evidence also to discard his testimony. The Fard Beyan (Ext. 2) fully corroborates the testimony of this witness. The Fard Beyan was recorded very promptly at 8.15 A.M. i.e. about within 15 minutes of the occurrence. Hence, there was no chance of concoction in it. It has been suggested to this witness that he did not see any occurrence, but he has denied the suggestion. The complaint petition (Ext. B) filed by the appellants shows that this witness has been made accused therein. The presence of this witness near the P.O. at the time of occurrence, hence, cannot be disputed. 20. As regards P.W.4 he was going to harvest paddy in his field and. his evidence shows that his field was a distance of 25 yards from the filed where Kameshwar was assaulted. His presence, hence, at the P.O. was natural. He is also named in the Fard Beyan as witness. P.W.1 has also named him as witness to the occurrence. He has stated that Kaimu Beg is the son of his brother, Ghasita Beg and has further admitted that Chhedi Chaudhary, the maternal uncle of the appellant Rambachan had tiled a case under Sections 325, 323 I.P.C. against Kaimu Beg. But it does not appeal to reason that for such remote enmity the witness would falsely implicate the appellants. There is nothing else in his evidence to discredit him. 21. P.W.5 is a resident of Pewandi and his evidence shows that on hulla he had gone to the P.O. He is hence a natural witness. He is also named in the Fard Beyan as witness. The witness has been cross-examined at length but there is absolutely nothing in his evidence to discard his testimony. He has admitted that he had enmity with the Mishra-appellants. But he has not named them as accused. So, it cannot be said that out of enmity he has deposed in this case. 22. P.W.8 is an injured. He is hence the most competent witness of this case. There is absolutely nothing in his evidence to disbelieve him. 23. There is indeed some discrepancy in the evidence of eye witnesses regarding the names of the appellants. Learned counsel for the appellants, hence, has argued that this discrepancy makes the testimony of the witnesses doubtful. P.W.8 is an injured. He is hence the most competent witness of this case. There is absolutely nothing in his evidence to disbelieve him. 23. There is indeed some discrepancy in the evidence of eye witnesses regarding the names of the appellants. Learned counsel for the appellants, hence, has argued that this discrepancy makes the testimony of the witnesses doubtful. The discrepancy, however, is of minor nature. It is a common experience that the power of observation and absorption differ from person to person. Hence, such discrepancy is natural and does not affect testimony of the witnesses. 24. The evidence of P.W.9 the doctor shows that on 28.3.1975 at Chenari State Dispensary he had examined Shri Kishun Sah (P.W.8) and had found as many as eight injuries caused by hard and blunt weapon and out of them one injury-viz fracture of left redius and ulna bone in the middle part was grievous. The evidence of the doctor also shows that he had found one lacerated wound on right perital region of size 1/2" x 1/4" x 1/4". 25. The evidence of the doctor hence corroborates the testimony of eye witnesses. As there were seven injuries and one of them was on vital part, it may also be inferred that there was murderous attack on Shri Kishun Sah. 26. The doctor who had conducted the postmortem examination of the deceased (vide P.W.11). The postmortem report hence is admissible under Section 32 of the Evidence Act. The postmortem report (Ext. 7) shows that the doctor had examined the dead body of the deceased on 29.3.1975 at 9 hours and had found the following ante-mortem injuries: (i) Lacerated wound 1 1/2" x 1/4" x bone deep, back of head with fracture depressed 2 1/2" x 1" underbeneth on oeciprital bone. (ii) Lacerated wound 1/2" x 1/6" x skin deep left thumb. (Hi) 6 contusion 3" to 6" back of trunk and chest both the sides. (iv) III defined contusion right ankle. 27. The postmortem report, hence, also shows that the deceased had received injuries caused by hard and blunt substance and one of the injuries was on occipital region, as have been stated by the eye witnesses. 28. (Hi) 6 contusion 3" to 6" back of trunk and chest both the sides. (iv) III defined contusion right ankle. 27. The postmortem report, hence, also shows that the deceased had received injuries caused by hard and blunt substance and one of the injuries was on occipital region, as have been stated by the eye witnesses. 28. PW.9 the I.O. has deposed that on 28.3.1975 at 8.15 A.M. he recorded the Fard Beyan of Ramchela Das and in the meantime, he received O.D. slips from Chenari hospital and went to the hospital and prepared the inquest report (Ext. 3) of the deceased Kameshwar. He also found Shri Kishun Sah seriously injured and unable to give any statement. His evidence further is that on the same date at 12 noon he visited the place of occurrence and the place which was shown to him as the place where the deceased had fallen down injured was the field of compounder and he seized blood stained earth in presence of Gayatri Chaubey and Illiyas Beg from there and prepared seizure list (Ext. 4). His evidence also is that pucca road is about 20 yards from this place and the Boring of Gayatri Chaubey is by the side of this road and about 70 yards from the Boring was the place (a ploughed land) where Shri Kishun Sah had fallen. He found trampling mark at this place. His evidence then is that the disputed land is at a distance of 300 yards from the place where the deceased is said to have fallen. The witness also had prepared side plans (Ext. 6 & 6/ 1) of the P.O. 29. The objective finding of the I.O. hence corroborates the testimony of the eye witnesses. The witness, of course, has stated in his cross-examination that he did not find any bundle of cut crops at the disputed field but this is not material, as the admitted position is that the deceased was cutting wheat crops from that field at that time. 30. Now, coming to the question as to who was in possession of the disputed land, P.W.1 has stated that the land was her personal land. Her evidence in cross-examination is that her husband had divided all his lands in three equal shares among her, her son Ramchela and grandson Kameshwar and that Ramchela and Kameshwar had sold their shares prior to the occurrence. Her evidence in cross-examination is that her husband had divided all his lands in three equal shares among her, her son Ramchela and grandson Kameshwar and that Ramchela and Kameshwar had sold their shares prior to the occurrence. P.W.2 has stated that the disputed land was hers. She has also stated that her husband and her son had sold their shares in the land. She has denied that her mother-in-law (P.W.1) had gifted her share of land in the name of the son of the appellant Saryu. P.W.3 has stated that the appellant Saryu had got a deed of gift executed by his mother in respect of her land, but when it came to the knowledge of his mother, she cancelled the deed. He has further stated that the disputed land continued to be in their possession and the wheat crops which were being harvested were grown by them. P.W.5 has stated that Kameshwar had grown the wheat crops. 31. The appellants also admit that the disputed land belonged to Kaushalya Kuer (P.W.1). Their case, however, is that the land was gifted by P.W.1 in favour of the appellant Ram Bachan Ahir and since then they are coming in possession. They have filed that deed (Ext. D) executed on 30.8.1972 by P.W.1 in favour of the appellant Ram Bachan Ahir. They have also filed the rent receipts (Exts. C to C/5) to prove that they were coming in possession. 32. The evidence of P.W.3, however, as already mentioned, is that the deed was cancelled. The prosecution of course has not filed any deed of cancellation, but has filed the certified copy of the judgment (Ext. 9) passed by the 3rd Addl. Munsif, Sasaram in T.S. No. 105/78 filed by Kesari Devi (daughter of P.W.1) and others against the appellant Sheopujan Ahir and others for declaration that the above deed of gift is illegal and void. The judgment shows that the suit was decreed. In that judgment it is mentioned that Kaushalya Kuer had cancelled the deed of gift on 9.2.1994. It was decided therein that the above deed of gift was not executed out of free will and that it was obtained by fraud and the appellant was not in possession of the gifted lands. The judgment shows that the suit was decreed. In that judgment it is mentioned that Kaushalya Kuer had cancelled the deed of gift on 9.2.1994. It was decided therein that the above deed of gift was not executed out of free will and that it was obtained by fraud and the appellant was not in possession of the gifted lands. The prosecution has also proved the order of the Chakbandi Officer, Chenari dated 13.8.1987 to show that the name of Keshari Devi, daughter of Kaushalya Kunwar, was ordered to be entered against the disputed land and the case of the appellant Ram Bachan Singh with regard to the deed of gift was not accepted. 33. Then though the appellants have proved the above documents, they have not examined any witness to prove that the appellants were in possession of the disputed land. 34. Therefore, on a consideration of the above evidence of the parties, it is clear that actually Kaushalya Devi was in possession of the disputed land and not the appellants. It may be mentioned here that P.W.4 in his cross-examination has stated that the appellant Sarju Ahir was getting the land ploughed and Kameshwar had gone to harvest the crops. But this witness has been declared hostile. More over, in view of the above evidence of P.Ws. and the documents filed, only on the basis of the above evidence of P.W.4, it cannot be said that actually the wheat was grown by the appellants. 35. The appellants have also filed injury reports (Ext. A and A/2) of the appellants Ram Bachan Ahir, Raghu Ahir and Sheopujan Ahir to show that they were assaulted by the prosecution party, when they went to protest against harvesting of crops by the deceased and others. But nothing could be elicited from the evidence of the eye witnesses to show that the above appellants had received injuries at the time and place of the alleged occurrence. It has also not been suggested to them that the prosecution party caused the above injuries. The appellants have also not examined any witness to prove that the appellants received the injuries when they went to protest against the harvesting of crops by the deceased. It has also not been suggested to them that the prosecution party caused the above injuries. The appellants have also not examined any witness to prove that the appellants received the injuries when they went to protest against the harvesting of crops by the deceased. So, it cannot be held at all that the appellants had received the injuries while protesting against the harvesting of crops and at the hands of the prosecution party as has been alleged in the complaint petition. 36. It may also be pointed out here that the impugned judgment shows that a question of right of private defence was raised in the Trial Court. But it has been shown that the prosecution party was in possession of the disputed land. So, the appellant had no right of private defence of property. Again even if it be assumed that the appellants were in possession of a disputed land, the evidence shows that the deceased was chased and at about 300 yards from the disputed land, was assaulted. So the right of private defence to property if any had ceased when the deceased was assaulted. As regards right of private defence of person, it has already been shown that there is no evidence that the above appellants had received the injuries during the course of occurrence. So, the appellants had also no right of private defence of their persons. 37. In view of the discussions made above. I find that the prosecution has been able to prove beyond reasonable doubts that the disputed land was in possession of the prosecution party and when Kameshwar (deceased) was harvesting the wheat crops, the appellants protested and thereafter they chased him and in the field of compounder they assaulted Kameshwar and Kameshwar died and in the meantime when Sri Kishun objected he was also severely assaulted. 38. The question next arises whether all the appellants should be held liable for the murder of Kameshwar and assault of Sri Kishun Singh. 39. In this connection the evidence of P.W.1 is that Sheopujan, Rambachan, Raghu, Sarju, Tetari and Keshari Devi (wife of Sarju) had assaulted Kameshwar and Sri Kishun. She has further stated that she did not see Ramji, Dudhan and Dayanath at the P.O. P.W.2 has also named Sheopujan, Raghu, Ram Bachan, Sarju, Tetari and Keshari Devi as assailants of the above persons. She has further stated that she did not see Ramji, Dudhan and Dayanath at the P.O. P.W.2 has also named Sheopujan, Raghu, Ram Bachan, Sarju, Tetari and Keshari Devi as assailants of the above persons. According to P.W.4, appellants Sarju, Sheo Pujan, Ram Bachan, Raghu had assaulted the deceased and according to P.W.5 these four appellants assaulted the deceased and Sri Kishun and when Kameshwar fell down Tetari and Keshari also assaulted the deceased with brick bats. P.W.8 has stated that 12-13 persons had assaulted Kameshwar with lathi and they then assaulted him. He has named Sarju, Ram Bachan, Ramayan and Lallu as their assailants. 40. Thus, it appears that there is discrepancy in the names of the assailants but it is clear that the assailants had formed an unlawful assembly to commit murder of the deceased and Sri Kishun Singh. The evidence of P.Ws. 1, 2, 3, 4 and 5 is consistent that the appellants Sarju, Sheopujan, Ram Bachan, Raghu had assaulted the deceased and according to P.Ws. 1, 2 and 5 they had also assaulted Sri Kishun Singh. Therefore, there can be no doubt that the appellants Sarju, Sheopujan, Ram Bachan, Raghu had assaulted the deceased and Sri Kishun Singh. The evidence of P.Ws. 1, 2 and 5 also shows that the appellants Tetari Devi and Keshari Devi also taken part in assaulting the deceased. As regards the appellants Ramayan Ahir, Lallu Ahir, Doma Rai, Dudhan Rai, Ramji Chaubey, Daya Nath Mishra, though P.W.3 has named these appellants as members of the mob, no other witness has corroborated his testimony. Again though P.W.8 has stated that Sarju, Ram Bachan, Lallu and Ramayan had taken part, his deposition shows that he could identify only the appellant Sarju in Court. It appears from the evidence of the I.O. that nine appellants were put on Test Identification Parade for Identification by this witness. T.I. chart which is Ext. 8 also shows that he could identify only the appellant Sarju Ahir. He was a man of different village. It is, therefore, obvious that he did not know all the appellants. So, on the basis of the evidence of this witness it cannot be said that the appellants Ramayan and Lallu had also taken part in the occurrence. 41. In this case the appellants Sarju Ahir, Tetari Devi and Kesari Devi had died during the pendency of the appeal. It is, therefore, obvious that he did not know all the appellants. So, on the basis of the evidence of this witness it cannot be said that the appellants Ramayan and Lallu had also taken part in the occurrence. 41. In this case the appellants Sarju Ahir, Tetari Devi and Kesari Devi had died during the pendency of the appeal. As regards the appellants Ramayan Ahir, Lallu Ahir, Doma Rai, Dudhan Rai, Ramji Chaubey, Daya Nath Mishra as no other witness except P.W.3 has named them, it is difficult to hold that they were members of the unlawful assembly. 42. So far as the appellants Sheopujan, Ram Bachan and Raghu, it is, however, fully established that they by forming an unlawful assembly to commit the murder of a deceased, assaulted him as a result of which the deceased died. As regards assault on Sri Kishun as he had received eight injuries and one of the injuries was on perietal region it is clear that attempt was made to commit his murder also and though the evidence of Sri Kishun shows that he could not identify any of the assailants except the appellant Sarju Ahir (since dead) the evidence of other eye witnesses as mentioned above, is clear that the three appellants had assaulted him also. Therefore, these three appellants are liable under Section 302/149 and Section 307/149 I.P.C. As regards sentences against these appellants passed by the learned lower Court, they do not call for any interference. 43. In the result, the appeal with regard to the appellants Sheopujan Ahir and Raghu Ahir is dismissed and the appeal with regard to the appellants 1. Ramayan Ahir, 2. Laloo Ahir, 3. Doma Rai, 4. Dudhan Rai, 5. Ramji Chaubey and 6. Daya Nath Mishra is allowed and these appellants are acquitted of both the charges for which they had been convicted. They are discharged from liabilities of their bail bonds. The appellants, Sheopujan Ahir and Raghu Ahir must surrender in the lower court forthwith to serve out the sentences. The learned lower Court would also take steps for arrest of these appellants to serve out the sentences. I agree.