JUDGMENT Hon’ble R.P. Yadav, J.—This criminal appeal is directed against the judgment and order dated 29.1.1996 passed by lllrd Additional Sessions Judge, Bahraich in Sessions Trial No. 100 of 1992 convicting the appellants under Sections 307 and 452 IP C and sentencing each of them to undergo R.I. for six years and pay of fine of Rs. 1,500/- under Section 307 IPC and to undergo three years R.I. and pay fine of Rs. 500/- under Section 452 IP C. respectively. In the event of default to pay the fine, the sentences of imprisonment have been awarded to six months and three months R.I. Respectively. 2. Appellant Badloo Ram is the father of other three appellants They as well as complainant Ram Ubaran P.W. 1 are residents of Kalai, which is situated within the circle of PS. Gilaula which is situated at the distance of 5 Kms from the place of occurrence. 3. Prosecution case is that at the night of 15/16-4-1991, complainant Ram Ubaran P.W 1 had been sleeping on the roof of his house. It was about 12.00 mid night, when he saw some persons climbing over his roof, he flashed his torch and saw the appellants on his roof. Appellant Parasnath was armed with Pharsa and appellant Jagdish Shukla was having a knife. While he was trying to raise alarm, appellant Parasnath gave him a blow of Pharsa on the back side of his neck, whereas appellant Jagdish Shukla inflicted knife blows. The other two appellants Sunder Pal and Badloo Ram are said to have exhorted to kill, him The reason for this murderous assault is said to be previous enmity. 4. Complainant Ram Ubaran P.W.1 got the report (Ext.Ka-1) scribed by one Ram Prakash of his village on his own dictation, which he handed over at police station Gilaula at 6.15 a.m. on 16.4.1991. He was sent for medical examination through Home Guard Vishwanath Shukla. Dr. Mahesh Chadra Verma, P.W. 3 the then Medical Officer Incharge of Primary Health Centre, Gilaula medically examined him on 16.4.1991 at 7.25 a.m. and found the following injuries on his person : (1) An incised wound sized 17.0 Cm. X 1.0 Cm.X 1 Cm. deep situated over back off neck just below base of head. Obliguely started from 1 cm. Mahesh Chadra Verma, P.W. 3 the then Medical Officer Incharge of Primary Health Centre, Gilaula medically examined him on 16.4.1991 at 7.25 a.m. and found the following injuries on his person : (1) An incised wound sized 17.0 Cm. X 1.0 Cm.X 1 Cm. deep situated over back off neck just below base of head. Obliguely started from 1 cm. Posterior to mid root of right ear, end point of wound is at 3 cm lnferopost to root of left ear, bleeding profusely, margins of wound are clear. (2) An incised wound sized 1.0 Cm. X 0 5 Cm. X skin deep situated over anterior aspect of junction between Pinna and Ear lobule of right ear bleeding profusely. (3) An incised wound sized 5.5 Cm.X 2 Cm. X 1 Cm. Deep situated over medial aspect of left wrist and as well as medial aspect of palm of left side, oblique in direction, bleeding profusely. (4) An incised wound sized 1.5 Cm X 0.5Cm. X skin deep present over Dorsum of root of left ring finger, bleeding profusely. 5. In the opinion of the doctor all the injuries were caused by sharp edged weapon. Duration was fresh. Injury No. 1 was found to be grievous and other injuries were simple in nature. Due to massive haemorrhage from injury No. 1 the patient was kept under observation and treatment. Injury report is Ext. Ka-2. 6. Case was investigated by Shri Krishna Kumar Pandey, P.W.4, who was then posted as S.I. at the police station. He submitted charge-sheet against all the four appellants on 7.5.1991. 7. Appellants pleaded not guilty and attributed their false implication on account of enmity. It was suggested in the defence that the appellants are innocent and it appears that the complainant Ram Ubaran (P.W.-1) was assaulted by some other person in the dark night, whom he could not identify and the appellants have been implicated falsely due to enmity. 8. To substantiate the charge, prosecution examined complainant Ram Ubaran, P.W.1, Ghanshyam P.W. 2, Dr. Mahesh Chandra Verma, P.W. 3 and S.I. Krishna Kumar Pandey, P.W. 4. No evidence in defence has been led by the appellants. 9. The learned trial Court after considering the entire evidence found the appellants guilty of the said offences, for which they stood charged and accordingly convicted them under, Sections 307, 452 IPC and sentenced them as stated above. 10. No evidence in defence has been led by the appellants. 9. The learned trial Court after considering the entire evidence found the appellants guilty of the said offences, for which they stood charged and accordingly convicted them under, Sections 307, 452 IPC and sentenced them as stated above. 10. Appellants have challenged their conviction and sentences through this appeal. 11. It is submitted by the learned Counsel for the appellants that there was prior enmity between the parties and according to own case of prosecution two appellants namely Badloo Ram and Sunder Pal did not take part in the assault. They are said to have exhorted to other accused. It is submitted that when other appellants are said to have gone there in the night to assault complainant Ram Ubaran P.W. 1 either with an intention to attack him and to teach him lesson or to kill him, then there was no question of other two appellants going there for exhortation purposes only. In is also submitted that the evidence of the exhortation has not been corroborated by any physical on material evidence, hence these two appellants were entitled to be acquitted. It is also submitted. that in any event, it was a case of Section 324 IPC only because it was not proved, that the injuries were sufficient to cause death of complainant Ram Ubaran P.W. 1 in ordinary course of nature. The case of other appellant Jagdish Shukla was also tried to be distinguished on the ground that the injuries alleged to have been inflicted by the knife were simple in nature and were on non-vital part of the body, hence he could not be convicted under Section 307, 1PC. At the most, it was a case under Section 324 IPC. 12. It may be noticed that the learned trial Court has framed charges against the appellants under Section 307 IPC only, but, if it is found proved that they acted in furtherance of common intention, the conviction can very well be recorded under Section 307 IPC read with Section 34 IPC because absence of Section 34 is not fatal. It is curable irregularity, if no prejudice is shown to have been caused to the accused. 13. It is curable irregularity, if no prejudice is shown to have been caused to the accused. 13. It is admitted that prior to the incident, appellant Parasnath had killed his five years old daughter by over throwing her Son of complainant Ram Ubaran P.W.1 gave evidence in that matter before the Investigating Officer in presence of the appellants against them. It is also in evidence that complainant Ram Ubaran P.W. 1 was convicted under Sections 325 and 452 IPC, on the report of the appellant Badloo Ram, but he was acquitted in appeal. Complainant Ram Ubaran P.W.1 has also deposed in cross examination that the litigation relating to some grove has been pending between him and appellant Badloo Ram since long. 14. It would appear from the above that there was enmity between the parties since long. Enmity is double edged weapon, and it can cut both ways. It-is to be examined whether this assault on complainant was the result of enmity, or the appellants are innocent and they have been falsely implicated due to enmity It is the evidence, which has to be examined in order to find out the culpability of the appellants. The occurrence in question took place in the mid. night, when the complainant Ram Ubaran P.W. 1 was sleeping on his roof. Half hearted submission was made that roof is not a house, so Section 452 IPC will not be attracted to this case, but roof being part of the building, if any one goes on the roof of the house, that will tantamount entering into the building within the meaning of Section 452 IPC and in case there is preparation for causing hurt and in other words, if the accused are armed with weapons, then such a house-trespass with preparation of causing hurt will be punishable under Section 452 IPC. So, if the case is found otherwise proved, it will be a case punishable under Section 452 IPC. 15. There are two witnesses examined by the prosecution P.W. 1 Ram Ubaran is the complainant and victim of assault, whereas P.W.2 Ghanshyam, who is related to him is also an eye witness P.W. 2 Ghanshyam has deposed that he saw the appellants coming down from the roof and running away. He stated that he was having torch, in the light of which, he saw the appellants running away. He stated that he was having torch, in the light of which, he saw the appellants running away. He had not seen the actual incident of assault. He admits that he is a “Mausera Bhai” of complainant Ram Ubaran P.W, 1. This relationship alone cannot be a ground of rejection of his evidence, if his evidence seems reliable and trust worthy and finds corroboration from other material on record. P.W.1 Ram Ubaran complainant has deposed that he saw the appellant Parasnath who was, having Pharsa and assaulted on his neck from back side, whereas appellant Jagdish Shukla gave knife blows on him. On his alarm. Witnesses Ghanshyam (P.W 2), Shitala Prasad and Diwakar reached the spot and saw the appellants running away. Medical evidence of Dr. M.C. Verma P.W. 3 shows that injury No. 1 was caused by Pharsa, whereas other injuries were inflicted by knife. In view of the evidence of Dr. M.C.Verma P.W. 3, who had prepared injury report (Ext.Ka-2), there is no scope for disbelieving the testimony of P W 1 Ram Ubaran and P.W 2 Ghanshyam. It is thus, proved beyond any reasonable doubt that the appellants Parasnath and Jagdish Shukla inflicted the injuries by Pharsa and knife on complainant Ram Ubaran P.W.1 causing four injuries on his person as noted in the injury report (Ext. Ka-2). Neck is the vital part of the body Dr. M.C. Verma P.W.3 has stated that injury NoJ was grievous in nature. He has also stated that there was possibility of his death if due care for controlling his bleeding had not been taken for some time more. In view of this medical examination, it stands proved that the appellants had gone on the roof in the dead night armed with deadly weapons like Pharsa and knife. So, their intention can easily be, gathered that they intended to cause his death and injuries were caused by them on vital part of the body and were also grievous in nature, so, it would be a case under Section 307 IPC. The appellants Parasnath and Jadhish Shukla went together armed with weapons inflicted injuries on the complainant Ram Ubaran P.W. 1 and thereafter ran away together by jumping down from the roof. Therefore, these circumstances are clear enough to indicate that they had pre concert and did share the common intention in furtherance of which they committed this incident. The appellants Parasnath and Jadhish Shukla went together armed with weapons inflicted injuries on the complainant Ram Ubaran P.W. 1 and thereafter ran away together by jumping down from the roof. Therefore, these circumstances are clear enough to indicate that they had pre concert and did share the common intention in furtherance of which they committed this incident. Appellant Jagdish Shukla was armed with knife and he caused simple injuries only, yet he deserves to be convicted under Section 307 IPC read with Section 34 IPC because he participated in the incident with a common intention. Non mention of Section 34 IPC will not in any way vitiate conviction or trial and: this Court can very well on the basis of evidence uphold the conviction under Section 307 IPC taking the aid of Section 34 IPC as against appellant Jagdish Shukla as Well. 16. In Yogendra Rawani and others v. State of Bihar, 1984 Crl L.J. 386 a Division Bench of Patna High Court has held that even if no charge is framed under Section 34 of the Penal Code alongwith the substantive section, on the basis of the material on record a person may be convicted, if no prejudice is caused. “ 17. Appellants Badloo Ram and Sunder Pal are said to have exhorted. It was the mid night when the occurrence had taken place. The other two appellants had secretly gone there in the night perhaps with a view that the offence goes unnoticed, but it was only a chance that the complainant Ram Ubaran P.W. 1, on feeling presence of some persons on the roof, woke up and saw the appellants Jagdish and Parasnath armed with Pharsa and knife and they caused injuries on him, but the other two appellants namely Badloo Ram and Sunder Pal were not having any weapon and they also did not participate in the assault. It is submitted by the learned A.G.A. that they had joined the other two appellants because in the event, if any resistance was offered from other side, then in that event, they would have helped them in running away. But I feel that it is not sufficient and the case against these two appellants cannot be said to be free from doubt Moreover, the evidence of exhortation is by its very nature week piece of evidence. 18. But I feel that it is not sufficient and the case against these two appellants cannot be said to be free from doubt Moreover, the evidence of exhortation is by its very nature week piece of evidence. 18. In Jainul Haque v. State of Bihar, AIR 1974 SC 45 , the Hon’ble Supreme Court held that “the evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim. Unless the. evidence in this respect be clear, cogent and reliable, no conviction for abetment can ‘be recorded against the person alleged to have exhorted the actual assailant”. 19. In Sita Ram Pandey v. State of Bihar, Crl. L.J. 1976 page 801 also the Hon’ble Supreme Court held that the evidence of exhortation is very week piece of evidence. 20. In the present case appellants Badloo Ram and Sunder Pal, who did not take part and were not armed with any weapon and are said to have exhorted only and there being no other corroborative, clinching and cogent evidence of their presence on the roof at the time of occurrence, it would be proper to extend them the benefit of doubt. 21. Submission was made by the learned Counsel for reduction of sentence awarded to appellants. But on a consideration of the matter I feel that the learned trial Court has dealt with the appellants with much leniency. Such a murderous assault at the dead of night in a pre-concerted and preplanned manner called for a severe sentence, I find no justification for modification or reduction of sentence. 22. In the result, appeal is partly allowed The two appellants namely Badloo Ram and Sunder Pal are acquitted of the charges framed against, them. They are on bail. They need not surrender thereto. Their bail bonds are cancelled. 22. The appeal of other two appellants, namely, Parasnath and Jagdish Shukla is dismissed. They shall surrender before the learned trial Court forthwith. Their bail bonds and personal bonds shall stand cancelled after they surrender before the Court below and those bonds shall continue to enure till their arrest/surrender before the Court and the trial Court may ensure their surrender/arrest by taking action against them and their sureties according to law. They shall surrender before the learned trial Court forthwith. Their bail bonds and personal bonds shall stand cancelled after they surrender before the Court below and those bonds shall continue to enure till their arrest/surrender before the Court and the trial Court may ensure their surrender/arrest by taking action against them and their sureties according to law. 24. Copy of this judgment together with lower Court record be sent to the learned trial Court to ensure the compliance of this order. The learned Court will get the appellants Parasnath and Jagdish Shukla arrested and committed to prison to serve out the sentences awarded to them and submit compliance report within three months. Order Accordingly. ———