Judgment Chandramauli Kr.Prasad, J. 1. Appellants, being aggrieved by and dissatisfied with the judgment and order dated 7-2-2001 passed by the 1st Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No. 476 of 1984, have preferred this appeal. 2. Appellant No. 6-Sri Narayan, by the said judgment has been found guilty of offence under Secs. 148 and 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and life respectively, while rest of the appellants have been found guilty of offence under Secs. 147, 323 and 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year, three months and life respectively. 3. According to the First Information Report lodged by Janak Sah (P.W. 5) on 24-6-1982 at 11 a.m. at Sadar Hospital, Motihari, the case of the prosecution is that a day prior to the incident, exchange of hot words took place between his family and that of appellant No. 2-Mangar Sah and on account thereof, on 24-8-1982 at about 9 a.m., all the appellants armed with lathi, bhala and garasa came to his Darwaja and appellant No. 2-Mangar Sah ordered to kill, whereupon appellant No. 6-Sri Narayan Singh assaulted his son Bhola Sah (deceased) by bhala on his head and he fell down. According to the report, informant, his son Babu Lal (P.W. 3) and his mother Ramrati rushed to save him, but the appellants also assaulted them by lathi. On account of injury caused by the appellants, Ramrati fell down and became unconscious. Informant had alleged that in the occurrence he had sustained injuries on his head and right hand, whereas his son Babu Lal in his thigh, back and temple, by lathi. 4. According to the informant, seeing the occurrence villagers collected and pacified the situation and finding his son and mother unconscious, appellants fled away from the place of occurrence. Thereafter injured Bhola Sah was brought to Sadar Hospital for treatment, where the informant gave the statement to the Assistant Sub-Inspector of Police about the incident. On that basis, Motihari Town (Chhatauni) P.S. Case No. 161 of 1982 was registered under Secs. 147, 148, 149, 323, 324, 307, 379 and 447 of the Indian Penal Code, 1860 . Later on Bhola Sah died and, accordingly sec. 302 of the Indian Penal Code was added. 5. On that basis, Motihari Town (Chhatauni) P.S. Case No. 161 of 1982 was registered under Secs. 147, 148, 149, 323, 324, 307, 379 and 447 of the Indian Penal Code, 1860 . Later on Bhola Sah died and, accordingly sec. 302 of the Indian Penal Code was added. 5. Police after investigation submitted charge-sheet against the appellants and they were ultimately committed to the Court of Sessions to face trial, where all of them were charged for voluntarily causing hurt to Babu Lal (P.W. 3), Ramrati Devi and informant Janak Sah (P.W. 5), punishable u/s. 323 of the Indian Penal Code. All the appellants, excepting appellant-Sri Narayan Singh, have been charged also for causing the death of Bhola Sah as a member of unlawful assembly in prosecution of common object, punishable under Sections 302/149 of the Indian Penal Code as also for rioting, punishable under Section 147 of the Indian Penal Code, 1860 . Appellant No. 6-Sri Narayan Singh has further been charged for committing the offence of rioting with deadly weapon, punishable under sec. 148 of the Indian Penal Code and for intentionally causing the death of Bhola Sah, punishable u/s. 302 of the Indian Penal Code, 1860 . 6. Appellants pleaded not guilty and claimed to be tried. 7. Prosecution in support of its case had altogether examined eight witnesses. P.W. 1 Lal Jhari, P.W. 3 Babu Lal and P.W. 5 Janak Sah claim to be the eye-witnesses to the occurrence. P.W. 3 Babu Lal is the son of the informant and brother of the deceased, whereas P.W. 5 Janak Sah happens to be the father of the deceased. P.W. 2 Chhathiya alias Sugiya has been declared hostile. P.W. 4 Yogendra Prasad is the witness to the seizure list of blood-stained earth, whereas P.W. 6 Ram Nath Singh, at the relevant time, was an Assistant Sub-Inspector of Police, who had drawn the formal First Information Report, proved the fard beyan and inquest re-port and had also investigated the case. P.W. 7 Ram Chandra Tiwary, at the relevant time, was compounder in the Sadar Hospital, Motihari and had proved the writing and signature of Dr. K. K. Bajpayee on the postmortem report. P.W. 8 Dr. P.W. 7 Ram Chandra Tiwary, at the relevant time, was compounder in the Sadar Hospital, Motihari and had proved the writing and signature of Dr. K. K. Bajpayee on the postmortem report. P.W. 8 Dr. Birendra Kumar Agrawal at the relevant time, was posted as Civil Assistant Surgeon in Sadar Hospital, Motihari and examined Ramrati Devi, Babu Lal (P.W. 3), Janak Sah (P.W. 5) and also examined Bhola Sah, the deceased. 8. Appellants plea is denial simplicitor and no defence witness has been examined. 9. The trial Court on appraisal of evidence came to the conclusion that the prosecution had proved its case beyond all reasonable doubt and, accordingly, held the appellants guilty and sentenced them as above. 10. P.W. 1 Lal Jhari has stated in her deposition that on the date of occurrence at about 9 a.m., while she was at her residence, heard hulla coming from the Darwaja of the informant and when she reached there, saw the appellants there. According to this witness, appellant No. 6-Sri Narayan Singh was armed with bhala while rest of the appellants were armed with lathi. This witness had alleged that appellant-Sri Narayan Singh assaulted Bhola Sah by bhala on his head, whereupon Jhaman Sah, informant Janak Sah (P.W. 5), Babu Lal (P.W. 3) and informants mother Ramrati came to save him and all the appellants assaulted them by lathi. Thereafter according to this witness, a large number of villagers collected at the place of occurrence and the appellants fled away from there. This witness had further stated that Bhola Sah (deceased) and all other injured persons were being taken to the hospital and she came to know that Bhola Sah died on way to the hospital. In the cross-examination she had stated that while she reached the place of occurrence, she saw Bhola Sah fallen on ground and blood coming out from the left temple. 11. P.W. 2 Chhathiya alias Sugiya in her deposition had stated that on the date of occurrence while she was coming back, heard hulla coming from the Darwaja of the informant and when she went there, saw the appellants present there armed with lathi excepting appellant-Sri Narayan Singh, who was armed with bhala. According to this witness, lathi and bhala were used to assault but she did not see as to who assaulted whom. This witness was declared hostile and cross-examined by the prosecution. 12. According to this witness, lathi and bhala were used to assault but she did not see as to who assaulted whom. This witness was declared hostile and cross-examined by the prosecution. 12. P.W. 3 Babu Lal is the brother of the deceased and he has stated in his evidence that on the date of occurrence at about 9 a.m. he, his brother Bhola Sah and father Janak Sah were at their Darwaja, where the appellants besides two other accused, since dead, all armed with lathi, excepting appellant-Sri Narayan Singh, who was armed with bhala, came and appellant-Sri Narayan Singh assaulted Bhola Sah by bhala on his head. Sustaining the injuries he fell down, whereupon his father and grand-mother Ramrati rushed to save him. This witness had alleged that the appellants assaulted him and her grandmother. According to this witness, his brother and grand-mother were taken to the hospital on a rickshaw and after 10 to 15 minutes when they reached the hospital, his brother had died. In the cross-examination this witness has admitted that a large number of houses exist around the place of occurrence, but none of them have been examined as witness. In the cross-examination this witness had further stated that appellant-Sri Narayan Singh struck bhala from a distance of a fore-arm. 13. P.W. 4 Yogendra Prasad had stated in his evidence that on the date of occurrence the Sub-Inspector of Police had come to the place of occurrence and made seizure and prepared seizure list in his presence and he is a witness to that. 14. P.W. 5 Janak Sah is the father of the deceased and informant of the case. He had stated in his evidence that at about 9 a.m. on the date of occurrence while he was at his Darwaja, all the appellants came armed with lathi excepting appellant-Sri Narayan Singh, who was armed with bhala and at the order of appellant-Mangar Sah, Sri Narayan Singh struck bhala which hit his son on his head. Sustaining the injuries, according to this witness, Bhola Sah fell down, whereupon his mother, his father Jhaman (since dead) and his son Babu Lal (P.W. 3) came to save him, but the appellants also assaulted them by lathi. This witness had further stated that the appellants assaulted him twice by lathi on his right arm and back. Sustaining the injuries, according to this witness, Bhola Sah fell down, whereupon his mother, his father Jhaman (since dead) and his son Babu Lal (P.W. 3) came to save him, but the appellants also assaulted them by lathi. This witness had further stated that the appellants assaulted him twice by lathi on his right arm and back. This witness had further deposed that sustaining the injuries his mother fell down and became unconscious and thereafter she and her two sons, namely, Bhola Sah (deceased) and Lal Babu were taken to Sadar Hospital, Motihari for treatment, where his son Bhola Sah died. In his cross-examination he had stated that Bhola Sah sustained injuries, not from the pointed side of bhala rather from the back of it which had iron rings. He had further stated in his evidence that only after arrival of the police, Bhola Sah was taken to the hospital. He had denied the suggestion that the deceased Bhola Sah was a patient of tuberculosis and hit some object while moving on the road and succumbed to the injuries. 15. P.W. 6 Ram Nath Singh, at the relevant time, was the Officer-in-charge of Chhatauni Police Station and had proved the statement (Ext. 2) of the informant and the signature of Inspector, who had drawn the First Information Report (Ext. 3) as also the inquest report (Ext. 4). 16. P.W. 7 Ram Chandra Tiwary, at the relevant time, was posted as compounder in Sadar Hospital, Motihari and had stated that on 24-6-1982 Dr. K. K. Bajpayee was posted in the hospital as Civil Assistant Surgeon. He had further stated that said Dr. Bajpayee was transferred from the hospital long back and his whereabout is not known and it is not even known as to whether he is dead or alive. He had identified and proved the signature (Ext. 6) of said Dr. Bajpayee in the post-mortem report. 17. P.W. 8 Dr. Birendra Kumar Agrawal is a Civil Assistant Surgeon posted in Sadar Hospital, Motihari and on 24-6-1982 he examined P.W. 5 Janak Sah and found the following injuries on his person: (i) Abrasion 1/2" x 1/4" with swelling and tenderness over an area of 2" x 1" over right parietal region of scalp. (ii) Swelling and tenderness over back of right wound on medial side. 18. (ii) Swelling and tenderness over back of right wound on medial side. 18. According to the doctor, the injuries found above were simple in nature caused by hard and blunt substance within 12 hours of examination. 19. On the same day at 9.30 a.m. he examined Bhola Sah and found the following injury on his person: (i) Lacerated wound front of scalp 2 and 1/2" x 1/3" x scalp deep with unconsciousness of patient. 20. According to the doctor, the injury was grievous in nature and dangerous to life and caused by hard and blunt substance like by blunt portion below the edged portion of bhala within 12 hours of examination. This witness had further stated that the patient died on the same day at 11.20 a.m. 21. This witness had further examined Ramrati Devi on the same day and found the following injuries on her person: (i) Blood clot over nostril with tenderness of nose. (ii) Tenderness left side of chest. Tenderness upper abdomen. (iii) Swelling and tenderness left hip joint. 22. According to the doctor, injuries were caused by hard and blunt weapon and injury Nos. (ii) and (iii) were simple in nature. The doctor reserved its opinion in regard to injury No. (iv) till x-ray report. Later on after x-ray, the doctor found no fracture or dislocation of hip joint and accordingly found injury No. (iv) to be simple in nature. 23. This witness, on the same day, had also examined Babulal and found the following injuries on his person: (i) Swelling and tenderness on the back of left arm in upper part. (ii) Abrasion 3" x 1/4" x 1/8" over upper part of back on left side by the side of base of neck. (iv) Tenderness left heel. 24. According to the doctor, all the injuries were caused by hard and blunt substance and were simple in nature caused within 12 hours of the examination. 25. Mr. Vindhya Keshari Kumar, senior Advocate, appearing on behalf of the appellants contends that the doctor, who had conducted autopsy, has not been examined and, as such, the appellants did not get opportunity to cross-examine him about the nature of injuries and whether they were sufficient in ordinary course of nature to cause death. 25. Mr. Vindhya Keshari Kumar, senior Advocate, appearing on behalf of the appellants contends that the doctor, who had conducted autopsy, has not been examined and, as such, the appellants did not get opportunity to cross-examine him about the nature of injuries and whether they were sufficient in ordinary course of nature to cause death. He points out that the contents of postmortem report cannot be proved by examining compounder as has been done in the present case by examining P.W. 7 Ram Chandra Tiwary. He points out that the said witness in his evidence had clearly stated that he is unaware of the contents of the post-mortem report. He emphasises that post-mortem report is not a document which falls u/s. 293(4) of the Code of Criminal Procedure and the prosecution having not taken recourse to sec. 294 of the Code, the contents of the post-mortem report cannot be read and hence prosecution had failed to prove the cause of death. This in the submission of Mr. Singh is enough to set aside the conviction of the appellants for murder. Reliance has been placed on a decision of the Jharkhand High Court in the case of Sowam Kisku V/s. State of Bihar (now Jharkhand) 2006 Cri LJ 2526 and our attention has been drawn to the following passage from paragraph 9 of the judgment, which reads as follows: It is needless to mention that the doctor who conducted autopsy and expressed opinion in the post-mortem certificate, was not examined and therefore the compounder, P.W. 11, is not a competent witness to speak about the cause of death; more so when he has admitted in his cross-examination that he was not present at the time of post-mortem and that he also did not know about the opinion expressed by the doctor who conducted autopsy. At this stage we wish to make an useful reference to sec. 293, Cr. P.C. which contemplates that any document purporting to be a report under the hand of a Government Scientific Expert to whom the section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding, may be used as evidence in any inquiry, trial or other proceeding. Sub-sec. (4) of sec. 293 classifies the reports of the scientific experts. Post-mortem report is not one of those documents which falls under Sub-sec. Sub-sec. (4) of sec. 293 classifies the reports of the scientific experts. Post-mortem report is not one of those documents which falls under Sub-sec. (4) of sec. 293, Cr. P.C. 26. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, appearing on behalf of the State, however, submits that copy of the post-mortem report was filed along with the list of the documents and that has been admitted without objection and, as such, is fit to be read as evidence in trial. In this connection, he has drawn our attention to sec. 294 of the Code of Criminal Procedure, which dispenses with formal proof of such documents, the genuineness whereof is not denied. Mr. Kumar, in answer thereto submits that the record does not show that the appellants were ever called upon to admit or deny the genuineness of the postmortem report and in the absence thereof said report cannot be read in evidence. The submission advanced necessitates examination of Sec. 294 of the Code of Criminal Procedure, which reads as follows: No formal proof of certain documents.- (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved. 27. From a plain reading of sec. 294 of the Code of Criminal Procedure, it is evident that when particulars of a document is included in a list and when accused is called upon to admit or deny the genuineness of such document and in case it is not disputed same can be read in evidence in trial without proof of the signature of the person to whom it purports to be signed. However, the Court may in its discretion, require such signature to be proved. However, the Court may in its discretion, require such signature to be proved. 28. Here in the present case, the signature of the doctor, who conducted the postmortem examination, had been proved by the compounder P.W. 7 Ram Chandra Tiwari and he had stated in his evidence that the said post-mortem report was prepared in his presence and he identified the signature of its author. The said post-mortem report has been filed by the prosecution with the list of documents and the endorsement made by the learned Judge show that the appellants admitted that without objection. The endorsement of the learned Judge in the list of documents clearly goes to establish that the genuineness of the post-mortem report was not disputed and, as such, same was fit to be read in evidence in trial in view of the clear language of sec. 294 of the Code of Criminal Procedure. 29. In addition thereto, Mr. Prasad has drawn our attention to the evidence of the compounder (P.W. 7) and points out that Dr. Bajpayee, who conducted the post-mortem examination, was transferred long back and his whereabout is unknown. This witness has further stated that it is not known whether he is dead or alive. Mr. Prasad points out that as the attendance of Dr. Bajpayee was not possible to be procured and in any view of the matter his attendance could not have been procured without an amount of delay and further the postmortem report having been prepared by the doctor in ordinary course of business, its contents are relevant facts, which is admissible in terms of sec. 32(2) of the Evidence Act. Reliance has been placed on a Division Bench judgment of this Court in the case of the State of Bihar V/s. Govind Singh 1997 (2) PLJR 245 and our attention has been drawn to the following passage from paragraph 14 of the judgment, which reads as follows: Secondly, in the facts and circumstances of the present case, it cannot be said that the autopsy reports prepared by Dr. N. K. Ghosh are not admissible u/s. 32 of the Evidence Act. N. K. Ghosh are not admissible u/s. 32 of the Evidence Act. In the case of Udho Mahto V/s. State of Bihar 1993 (2) PLJR 133, a Division Bench of this Court has held that Section 32 of the Evidence Act provides, inter alia, that the statement of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose evidence cannot be procured without an amount of delay or expense which would appear unreasonable to the Court in a given case are relevant facts if they relate to any of the matters referred to in the section. According to Sub-sec. (2) the statement made in ordinary course of business is a relevant fact. Statement and entries made in the post-mortem report are made by the doctor in ordinary course of business. If the doctor is dead or otherwise not available for the reason mentioned above, the post-mortem report is admissible as substantive evidence. 30. I find substance in the submission of Mr. Prasad and the decision relied on clearly supports his contention. The compounder (P.W. 7) in his evidence has clearly stated that Dr. Bajpayee was transferred long back and his whereabout is not known. This witness has further stated that it is not even known as to whether he is dead or alive. The doctor conducts post-mortem report in ordinary course of business. The whereabout of the doctor who had conducted the postmortem report being unknown, his evidence was not possible to be either procured or procured without an amount of delay. In such a situation, I am of the opinion that same is admissible in evidence. Hence it cannot be said that post-mortem report cannot be looked into to ascertain the cause of death. Evidence of the eye-witnesses find corroboration from the evidence of the doctor, who had examined the injured. Further P.W. 3 Babu Lal and P.W. Janak Sah have sustained injuries in the occurrence and as such their presence at the time of occurrence cannot be ruled out. They have supported the case of the prosecution in its entirety. There is no infirmity in their evidence to discard the prosecution case. 31. Mr. Further P.W. 3 Babu Lal and P.W. Janak Sah have sustained injuries in the occurrence and as such their presence at the time of occurrence cannot be ruled out. They have supported the case of the prosecution in its entirety. There is no infirmity in their evidence to discard the prosecution case. 31. Mr. Kumar, then contends that even if the entire allegation is held to be true it cannot be said that appellants intended to cause death and, as such, appellants cannot be held guilty of murder. He points out that the allegation even if accepted in its entirety, offence u/s. 304, Part II of the Indian Penal Code is utmost made out. In order to drive home his point Mr. Kumar has referred to the evidence of the informant P.W. 5 Janak Sah in paragraph 10 of the cross-examination, wherein he had stated that the deceased was assaulted not from the pointed portion of bhala but the bottom thereof. This according to Mr. Kumar clearly shows that appellant No. 6-Sri Narayan Singh never intended to cause death or he had knowledge that the injury inflicted shall be sufficient in ordinary course of nature to cause death. He points out that the post-mortem report does not indicate that injuries found on the person of the deceased were sufficient in ordinary course of nature to cause death. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Sarup Singh V/s. State of Haryana AIR 1995 SC 2452 : 1995 Cri LJ 4168 and our attention has been drawn to paragraph 4 of the judgment, which reads as follows: According to the evidence of P.W. 11, Dr. S. K. Khanna of the Maulana Azad Medical College, who conducted the post-mortem examination on the dead body of the deceased, who died on 25-1-1989 about 4 months after the occurrence, the cause of death was hydrocophalus and septicimia. According to Dr. Gupta, P.W. 2, who had operated upon the deceased on 15-9-1988, during the operation he had found a fracture of bone of right temporo-parietal region. According to Dr. Gupta, P.W. 2, who had operated upon the deceased on 15-9-1988, during the operation he had found a fracture of bone of right temporo-parietal region. Keeping in view this medical evidence and the established facts and circumstances of the case on the record, we are of the opinion, that the appellant can be clothed with the knowledge that the injury that he was causing to Jai Karan, with a hammer, on his head, a vital part of the body, was likely to cause his death, though without any intention to cause death or such injury as was likely to cause his death. He gave a single blow on the head of the deceased. The offence would, therefore, squarely fall u/s. 304, Part II, Indian Penal Code, 1860 We, accordingly, hold him guilty of the said offence and convict him accordingly. 32. Mr. Prasad, however, submits that the very fact that bhala was used to commit the crime and injury was caused on the head, clearly show that appellant No. 6-Sri Narayan Singh intended to cause death or alternatively cause such bodily injury which he knew to be likely to cause death. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Virsa Singh V/s. State of Punjab AIR 1958 SC 465 : (1958) Cri LJ 818 and my attention has been drawn to paragraph 13 of the judgment which reads as follows 13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder u/s. 300 "thirdly." It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (nor that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown or reasonably deduced, that the injury was accidental or otherwise unintentional. 33. Having appreciated the rival submission, I find substance in the submission of Mr. Kumar. It is well settled that every murder is culpable homicide but every culpable homicide is not murder. For bringing the offence of culpable homicide within the mischief of murder any of the clauses of sec. 300 of the Indian Penal Code is to be satisfied. A culpable homicide is murder if the act by which the death is caused is done with the intention of the causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or it is done with the intention of causing such body injury to any person and the bodily injury intended to be inflicted is sufficient in ordinary course of nature to cause death or if the person committing the act knows that it is so eminently dangerous that it must, in all probability, cause death or such bodily injuries as is likely to cause death. 34. According to the prosecution, appellant-Sri Narayan Singh was armed with Bhala and the bottom portion of the Bhala has been used in commission of the crime and from that it can be safely inferred that the appellant-Sri Narayan Singh neither assaulted the deceased with the intention of causing death or causing such bodily injury likely to cause death. It also cannot be said that he knew that the act done by him is so eminently dangerous that it must in all probability cause death. It also cannot be said that he knew that the act done by him is so eminently dangerous that it must in all probability cause death. According to the prosecution itself only a single blow was given from the bottom portion of the Bhala and the doctor who had conducted the postmortem examination had not deposed that the injuries on the person of the deceased was sufficient in ordinary course of nature to cause death. Hence, in my opinion the facts proved do not come within any of the clauses of Section 300 of the Indian Penal Code and hence offence u/s. 302 of the Indian Penal Code is not made out. However, there is consistent evidence of the eye-witnesses corroborated by medical evidence to show that appellant-Sri Narayan Singh had knowledge that the act done by him was likely to cause the death. Hence the facts proved bring out the guilt u/s. 304, Part II of the Indian Penal Code. 35. There is consistent evidence that all the appellants variously armed came to the place of occurrence and on exhortation of one of the appellants another appellant gave bhala blow and from this there is no escape from the conclusion that they shared the common object with the appellant-Sri Narayan Singh and hence every appellant shall be guilty of the offence committed by him with the aid of sec. 149 of the Indian Penal Code, 1860 . As the other appellants other than Sri Narayan Singh have been found to be sharing the common object of the unlawful assembly they are also liable to be convicted and sentenced for offence under sec. 304, Part II of the Indian Penal Code with the aid of sec. 149 of the Indian Penal Code, 1860 . 36. I am of the opinion that the sentence of five years and three years rigorous imprisonment shall meet the ends of justice for offence under Secs. 304, Part II and 304, Part 11/149 of the Indian Penal Code, 1860 . 37. Accordingly, the conviction of appellant-Sri Narayan Singh for offence under Sec. 302 of the Indian Penal Code and other appellants u/s. 302 of the Indian Penal Code read with sec. 149 of the Indian Penal Code is set aside, instead they are convicted for offence under Secs. 37. Accordingly, the conviction of appellant-Sri Narayan Singh for offence under Sec. 302 of the Indian Penal Code and other appellants u/s. 302 of the Indian Penal Code read with sec. 149 of the Indian Penal Code is set aside, instead they are convicted for offence under Secs. 304, Part II, 304, Part II/149 of the Indian Penal Code respectively and are sentenced to undergo rigorous imprisonment for five years and three years each respectively. 38. Needless to state that the period undergone by them in custody shall be set off u/s. 428 of the Indian Penal Code, 1860 . 39. In the result, the appeal is partly allowed with the modification aforesaid. 40. Rekha Kumari, J. I agree.