JUDGMENT Hon'ble GOMBER, J.-This judgment will dispose of the afore-mentioned appeals preferred by The State of Rajasthan as well as by the accused appellants against the judgment and order dated 30.7.1980 passed by the learned Sessions Judge. Sikar in the matter of FIR No. 112/79 of P.S. Neem-ka-Thana (Sikar) (Ex. P/27) in sessions case No. 42/1979. 2. Accused named (i) Todarmal (ii) Devki Nandan (sons of Sh. Mohan 15 Lal Vaidya); (iii) Mohan Lal Vaidya; (iv) Mohan, (v) Nagar Mal and (vi) Prakash Nayak (sons of Hanuman Nayak), (vii) Ramavtar and (viii) Prakash sons of Dwarka Prasad, had been set up for trial in the first instance. 3. Vide judgment dated 30.7.80 in Sessions case No. 42/79, learned Sessions Judge, Sikar acquitted Mohan Lal Vaidya whereas other seven were convicted and sentenced as under for the offences punishable under Secs. 147, 307/119, 302, and 324 IPC. The order of conviction and sentence was as under: (i) Accused -appellant Todarmal was convicted & sentenced as under:- (a) For offence under Section 302 IPC: Sentenced to life imprisonment and fine of Rs. 50/-. (b) For offence under Section 1471PC: Sentenced to 6 months' RI. (c) For offence under Section 307/149 IPC: Sentenced to 2 years 9 months' RI. and fine of Rs. 50/-" (ii) Accused-appellant Devki Nandan was convicted & sentenced as under: (a) For offence under Section 117 IPC: Sentenced to 6 months' RI. (b) For offence under Section 307/149 IPC: Sentenced to 2 years 9 months' RI. and fine of Rs. 50/-. (iii) Accused-appellants Nagarmal, Prakash Nayak & Prakash Soni were convicted and sentenced as under: (a) For offences u/S. 147 IPC: Sentenced to 6 months' RI. (b) For offences u/S. 307/149 IPC 2 years' 9 months' RI. and fine of Rs. 50/-; in default of payment of fine each to further undergo one month's RI. (iv) Accused-appellants Mohan Nayak & Ramavtar Sunar were convicted and sentenced as under:- (a) For offences u/S. 147 IPC: Sentenced to 6 months' RI. (b) For offences u/S. 307/149 IPC 2 years' 9 months' RI. and fine of Rs. 50/-; in default of payment of fine each to further undergo one month's RI. (c) For offence under Sec. 324 IPC: Sentenced to 1 year's RI. The sentences were ordered to run concurrently. 4. Accused Todar Mal & Devki Nandan have challenged this order of conviction and sentence vide Cr. Appeal No. 296/80. 5. and fine of Rs. 50/-; in default of payment of fine each to further undergo one month's RI. (c) For offence under Sec. 324 IPC: Sentenced to 1 year's RI. The sentences were ordered to run concurrently. 4. Accused Todar Mal & Devki Nandan have challenged this order of conviction and sentence vide Cr. Appeal No. 296/80. 5. Other five accused namely (i) Nagar Mal, (ii) Prakash Nayak (iii) Mohan Nayak (sons of Hanuman); (iv) Prakash Soni and (v) Ramavtar had IS challenged the'order of conviction and sentence vide Cr. Appeal No. 298/80. 6. However, accused appellant Nagar Mal died during the pendency of appeal. Hence his appeal stood dismissed on the ground of abatement. 7. The State of Rajasthan also filed leave to appeal challenging the judgment and order dated 30.7.80 seeking modification and enhancement of sentences against all the seven accused convicted as above but leave to appeal was granted vide order dated 24.11.81 against Mohan Lal and Ramavtar only and leave to appeal was registered as Cr. Appeal No. 555/81. 8. The facts as culled out by the prosecution are that PW.13 Ram Swaroop, A.S.I., Police Station Neem-ka-Thana recorded Parcha Sayan Ex. 25 P .24 of Rajendra Prasad, aged 16 years (son of deceased) at about 11.00 a.m. on 10.7.79 in the hospital Toda. After getting the information of the complainant party being detained in a hospital room, A.S.I. PW.13 is stated to have reached there and found Hari Narain dead. 9. On the basis of Ex. P.24, formal FIR was chalked and case was registered under Sec. 302/307, 147, 148/149 /PC and after completion of investigation, charge-sheet against all eight accused was filed before the concerned Magistrate. 10. On committal, the charges under Secs. 148, 302 alternatively ulS. 302/149, 147 & 307/149 IPC were read over to the accused for both the incidents I.e. on the 'rasta' near Naagar Sunaar's house and in the hospital room. They denied charges and claimed trial. 11. In order to substantiate its case, the prosecution examined as many as 19 witnesses and produced Ex. P/1 to Ex. P/54 documents. 12. All incriminating evidence and circumstances were put to the 40 accused in their statements under Sec. 313 Cr.P.C. In response thereto, they alleged false implication because of party politics. 13. They denied charges and claimed trial. 11. In order to substantiate its case, the prosecution examined as many as 19 witnesses and produced Ex. P/1 to Ex. P/54 documents. 12. All incriminating evidence and circumstances were put to the 40 accused in their statements under Sec. 313 Cr.P.C. In response thereto, they alleged false implication because of party politics. 13. Accused Todarmal alleged that his father Mohan Lal Vaidya is Sarpanch and in a criminal case against the brother of deceased, title as State vs. Damodar, his brother Devki Nandan was an eye witness and this was the 45 reason of their enmity and false implication. 14. In the same manner, accused Ramavtar also alleged that his father Dwarka Prasad was witness in that case against Damodar who was the brother of deceased Hari Narain. 15. Other accused also alleged enmity because of their deposing in a criminal case against the brother of deceased named Damodar who was convicted under Sec. 307 IPC. 16. It is not out of place to mention that no documentary or oral evidence to establish enmity was produced. The inimical relationship is alleged to be on account of their being witnesses in a criminal case against the brother of deceased Damodar who even does not live with the complainant party. Mohanlal Vaidya who has been acquitted of all the charges in this case, had explained before the trial Court that he, being Sarpanch, used to object to deceased's charging excessive interest rates from the villagers for the loans lent by him. That was the reason of his being angry with him and therefore he and his sons were implicated falsely. 17. The accused, however, led no defence. Documentary evidence Ex.D/1 to Ex. D/10 being previous statements, confronted to the prosecution witnesses, were exhibited to prove the improvement and contradictions. 18. The learned trial Judge convicted and sentenced 7 accused appellants/respondents as above vide impugned judgment and order dated 30.7.80. However, accused Mohan Lal Vaidya was acquitted. 19. Learned counsel Sh. R.L. Agrawal, appearing on behalf of appellants of appeal No. 996/80 namely Todarmal & Devki Nandan and learned counsel Sh. vs. Bishnoi appearing for appellants in appeal No. 298/80, Sh. Prakash Nayak, Prakash Soni, Mohan Nayak, Ramavtar Soni assailed the judgment of trial Court raising various legal & factual infirmities. 20. 19. Learned counsel Sh. R.L. Agrawal, appearing on behalf of appellants of appeal No. 996/80 namely Todarmal & Devki Nandan and learned counsel Sh. vs. Bishnoi appearing for appellants in appeal No. 298/80, Sh. Prakash Nayak, Prakash Soni, Mohan Nayak, Ramavtar Soni assailed the judgment of trial Court raising various legal & factual infirmities. 20. It is worth nothing that fifth appellant Naagar Mal died during pendency of the appeal, therefore, appeal by/against him stood dismissed as abated. 21. At the hearing of the appeals, learned counsel for the appellants advanced under noted eight submissions: (A) The first submission advanced was predicated upon the Parcha Bayan, Ex. P.24 of PW.11 Rajendra, which statement has formed the basis of the FIR registered in the present case. Counsel urged that there is not a word about the presence of Mohan Lal at the time of first occurrence in the statement of PW.11 Rajendra and, therefore, the claim of witness that he witnessed the incident in question is most doubtful. (B) The second submission advanced was predicated upon the conduct and testimony of child witnesses PW.3, PW.8 and PW.11. (C) The third submission advanced was predicated upon the fact that the star witness PW.3 and PW.11 were besides being minor, interested and that their testimony cannot be made basis for arriving at a finding of conviction. (D) The fourth submission advanced was predicated upon the trial Court's failing to put questions to test and intelligence and undertaking of the child witness. (E) The Fifth submission advanced was predicated upon the improper appreciation of evidence of interested witnesses. (F) The sixth submission advanced was predicated upon the injury report of accused and the counsel urged that the fact that the injuries were found on the persons of appellants Mohan Nayak and Ramavtar as shown in Ex. P.14 & Ex. P.15 by PW.5 Dr. N.M. Saboo, probabilise the version of appellants that the deceased and accused quarreled and that they were injured by them. (G) The seventh submission advanced was predicated upon that there were serious discrepancies in the evidence of the witnesses of purported recoveries made at the instance of the appellants. (H) The eighth submission advanced was predicated upon the statements recorded under section 313 Cr.P.C. stating that no incriminating material question was put to accused drawing his attention to the specific points in the charge. 22. Alternative submission of Sh. (H) The eighth submission advanced was predicated upon the statements recorded under section 313 Cr.P.C. stating that no incriminating material question was put to accused drawing his attention to the specific points in the charge. 22. Alternative submission of Sh. R.L. Agrawal, learned counsel appearing on behalf of accused Todarmal was that in the facts & circumstances of the case, maximum offence made out can be under Sec. 304 Part II and not under Sec. 302 IPC. 23. On behalf of-appellants of Cr. Appeal No. 298/1980, learned counsel Sh. V.P. Bishnoi, argued that injury No.2 & 3 on nose and cheek of deceased have been opined as simple by sharp object and that acid injuries being scars, cannot be said to be dangerous to life and that since the acid burns have been found to be superficial, therefore, are not even covered under' Sec. 320 IPC. Hence at the most, offence under Sec. 324/149 IPC can be said to have been made out and not under Sec. 307/149 IPC. 24. Per contra, the impugned judgment and order was assailed by learned Public Prosecutor and the counsel for the complainant. (i) Mr. Rajesh Choudhary, appearing on behalf of Mr. Biri Singh Sinsinwar, for the complainant as well as learned Public Prosecutor, supporting the impugned judgment, submitted that Todarmal has been rightly convicted under Sec. 302 IPC but the findings arrived at with regard to rest of the accused leading to their acquittal under Sec. 302/149 IPC were erroneous; (ii) It was argued that the charges against the, rest of the accused. respondents also stand proved by the evidence of PW-3, PW-8, PW-11 and PW-12 that they were laced with deadly weapons and hence guilty under Sec. 302/34 IPC, as muderous assault was committed in furtherance of common intention of the,. assailants. The acquittal of accused Mohan Lal Vaidya, Mohanlal Nayak, Ramavtar and Devki Nandan from Sec. 302/149 IPC was erroneous and findings in this regard are perverse; (iii) that only Mohan Nayak and Ramavtar have been convicted for offence under Sec. 324 IPC and others were acquitted of offence charged. It was submitted that even the sentence awarded to Mohan Nayak and Ramavtar be enhanced and rest be also convicted for offence under Sec. 324/34' IPC. It was submitted that even the sentence awarded to Mohan Nayak and Ramavtar be enhanced and rest be also convicted for offence under Sec. 324/34' IPC. It was also submitted that all the accused joined hands in the murderous assault but the sentence awarded for offence under Sec. 307/149 IPC for the second incident in the hospital is also insufficient and be enhanced. (iv) that accused Devki Nandan, Mohan Nayak and Ramavtar participated in murderous assault in the execution of common intention even if they inflicted minor injuries or no injuries on the body of deceased. Hari Narayan but their participation ultimately culminated into the death of the assailant, therefore, they are liable for the act of their other companions; and (v) lastly, the argument of learned Public Prosecutor and complainant's counsel was that it was a well planned deliberate assault on a teacher who was going to his school along with his kids to perform his government duties. After inflicting fatal injuries also near Naagar Mal Sunaar's house, on the way. They chased the deceased to the hospital room and threw acid and stones from the ventilator of a closed room. This shows that their intention was to kill the deceased and nothing else. 25. We have considered the rival submissions of all the parties and minutely scanned through the record and perused the law cited from both the sides. 26. We note that in criminal appeal No. 555/1981, leave to appeal was refused as against Devki Nandan vide this Court's order dated 24.11.81. 27. Few submissions advanced by the learned counsel for the appellants pertain to the alleged discrepancies in the ocular evidence of PW.11 PW.8 and P.W.3. 28. The principles of law with regard to the appreciation of evidence and also with regard to the discrepancies in the ocular evidence, have been laid down by Hon'ble Apex Court from time to time in judicial pronouncements in the matters reported in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat 1983 CLL.J. 1096; Leela Ram vs State of Haryana 1997 Cr.L.J. 3178; and Tahsildar Singh vs. State of UP 1959 Cr.L.J. 1231. 29. The appreciation of ocular evidence is a Herculean task. There is no fixed or straight jacket formula for appreciation of ocular evidence. 29. The appreciation of ocular evidence is a Herculean task. There is no fixed or straight jacket formula for appreciation of ocular evidence. The judicially evolved main principles regarding the appreciation of the ocular evidence in a criminal case, so far as they are relevant in this case, are as under: (i) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly, keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. (ii) If the trial Court had the opportunity to form the opinion about the general tenor of evidence, the appellate court which had not this benefit, will have to attach due weight to the appreciation of evidence by the trial Court and it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. (iii) When eye-witness is examined at length it is quite possible for him to make some discrepancies. (iv) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, is an unrealistic approach for judicial scrutiny. (v) Photographic memory of witness by and large cannot be expected like a Video tape being replayed on the mental screen. (vi) The mental faculties therefore cannot be expected to be attuned to absorb the details when the occurrence come as of surprise. (vii) The powers of observation differ from person to person. (viii) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (ix) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination. (viii) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (ix) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination. (x) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. 30. Now we proceed to examine the present case in the light of settled principles of law. 31. The star witness of the prosecution is PW.11 Rajendra whose Parcha Sayan Ex. P .24 recorded on 10.7.79 at 11.00 AM is the foundation of the case wherein he alleged that on 10.7.79 at about 6.30-6.15 a.m. when he, his sister Saroj and Babulal were going to the school with their father (deceased Hari Narayan when they reached in front of Naagar Sunar's house, accused Todarrnal laced with Kulhadi, Mohan Nayak with Barchhi, Devki Nandan with stick & Ramavtar with gupti attacked on them and Todarmal inflicted an injury by Kulhadi on his father and Mohan Nayak attacked by gupti whereby his father get certain injuries and then hearing the hue and cry, Naagar Sunar, Vinod & Prakash Joshi came out and holding Hari Narain's hand took him to the hospital. After a while, Todarmal, Devki Nandan, Ramavtar, Prakash Soni, Mohan Nayak, Naagar and Prakash Nayak carne to the hospital chowk and started beating deceased. At that time, Jai Singh saved deceased. He and his sister were there and Radhey Shyam, compounder had also reached by then. So as to save Jai Singh shifted them to a room and locked it. 32. Accused broke the ventilator of the room and pelted stones and acid. Consequently, deceased Hari Narayan died. Further that when his sons were inflicting injuries, Mohanlal Vaidya was watching and that they had inimical relationship with Mohanlal Vaidya and his sons. On an earlier occasion also, they had beaten them. 33. Thus there are two incidents as per Ex. 32. Accused broke the ventilator of the room and pelted stones and acid. Consequently, deceased Hari Narayan died. Further that when his sons were inflicting injuries, Mohanlal Vaidya was watching and that they had inimical relationship with Mohanlal Vaidya and his sons. On an earlier occasion also, they had beaten them. 33. Thus there are two incidents as per Ex. P-24, one near Naagar Mal Sunaar's house in the rasta where four accused Todar Mal, Mohan Nayak, Devki Nandan and Ramavtar having Kulhadi, Barchhi, stick and gupti are stated to have attacked at about 6.45 to 7.00 am and the other in the hospital chowk and room. 34. Formal FIR Ex. P. 27 was chalked on the basis of Ex. P. 24 at about 12.30 p.m. at P.S. Neem Ka Thana from where the place of incident is about 30 kms and as per PW. 11, ASI Ram Swaroop, he recorded Ex. P-24 when he had received the information about the deceased and his children being locked in the hospital room and when he was already in Toda village in connection with investigation of some other case, reached hospital and got the room latch opened from PW.11 Rajendra and saw Hari Narayan lying dead. Ex. P. 24 was recorded by him at 11.00 a.m. and was sent through Bajrang Singh, driver to PS-Neem Ka Thana for registering the case. 35. Hari Narayan died as a result of assault and as noted in the post mortem report, three external injuries were inflicted on his person which are as under: "1. Incised wound oval shaped over vertex of scalp, anterior, posterior diameter. 4 Inches, transverse diameter, 3" and depth. It was deep upto the tissue of the brain, taking the slice (1/4 cm thick) of fronto parietal lobs of brain both the sides. The incised skin flap was attached to the skin of scalp on right side. The direction of injury was from left to right side horizontally. The edges of wound were beveled anteriorly, posteriorly, and left side in left to right direction. 2. Incised wound: taking away the skin of nose from its base to its tip and also cartilage of left side of nostril and tip of nose. The length of the wound was 5 cm breadth was 1 cm and depth was 1/2 cm. The direction was from above to downwards. (Skin of the nose was absent interiorly). 2. Incised wound: taking away the skin of nose from its base to its tip and also cartilage of left side of nostril and tip of nose. The length of the wound was 5 cm breadth was 1 cm and depth was 1/2 cm. The direction was from above to downwards. (Skin of the nose was absent interiorly). 3. Punctured wound 3/4 cm x 1/2 cm x 1-1/2 cm left side of face. Two cm away from the left elaeansi. Internal condition of the deceased was as under: 1. Skull, scalp, vertibrea. (i) External injuries as described above. (ii) Skin with all its layers and bones vertex were found cut in one layer, taking parts of both parietal bones forming vertex. Membrance 1. Membrance were absent in the region of the injury of scalp and bones of skull. Otherwise congested all around. Brain and Spinal Cord 3. Brain tissue was taken away from the fronto parietal region of both hemispheres in the region of vertex with skin and bone flap. Thoarax 1. Thoarax was healthy. In my opinion, the cause of death of late Hari Narain was "injury to brain tissue. The injuries noted above were ante mortem in nature. 3. The probable time of his death was more than 24 hours and less than 48 hrs. from the time of my examination. 35(i). PW.11, PW.3, & PW. 8 were natural witnesses as they were going to school at about 6.30-6.45 a.m. with deceased who was a teacher in the same school and according to PW.3, Saroj, Babulal S/o Radhey Shyam aged 12 years lived close to their house and used to go to school with them every day. Thus, all three are natural witnesses. 36. We have perused the cross-examination of these witnesses. Other natural witness is PW.10 Vinod who is the son of Naagar Mal Sunar, who after hearing hue and cry, came out of his house along with his father and saw deceased lying injured and helped him go to the hospital. 37. Nothing that, the police reached the hospital soon after the crime was committed and promptly recorded the statement Ex. 37. Nothing that, the police reached the hospital soon after the crime was committed and promptly recorded the statement Ex. P.24 made by PW.11 Rajendra, in which he graphically described the assault on his father, a fact and a circumstance which lends assurance to his testimony in court, we accordingly, concur with the view taken by the learned trial judge that the testimony of PW.11 along with PW.3 and PW.8 establishes the manner in which deceased was assaulted. 38. There are of-course some improvements in the statements of these eye witnesses but to the extent that the fact, that Todarmal inflicted Kulhadi blow on the person of deceased, finds place in the statement of all the . three eye witnesses. Jai Singh, though is shown as eye witness but it is clear that by the time he reached, injury had already been inflicted. 39. PW.3 Saroj in her cross-examination though says that Babulal Bhaag Khada Hua' but he has categorically narrated the incident and may be being scared he rushed to his house which was very close to the place of incident. It is natural" conduct of a child who is of the age of 12 years, to get scared and leave the place of occurrence, when he sees this type of assault on his teacher by few persons in the way. But he has corroborated the statement of PW.3 & 35 PW.11 to that extent that incident took place in his presence. 40. There is an unimpeachable eye witness account corroborated by other incriminating evidence I.e. the weapon of offence (Axe) which was recovered vide Ex.P.36 on the disclosure statement of accused Todarmal Ex.P.49. 41. PW. 8, PW. 3, and PW.11 being child witnesses and PW.3 & PW. 11, on account of their being daughter and son of deceased were labeled as. interested witnesses also. Their testimony was assailed stating that the Trial Judge did not take precautions while examining the child witnesses and that it is unsafe to hold conviction on the basis of their testimony as they are prone to tutoring. However, as he record shows that in the instant case, PW.11 being of 16 years of age, PW.3 of 14 and PW. 8 of 12 years, have been found to have sufficient understanding and intelligentia to depose about the incident as it occurred in front of their eyes. In their cross-examination they could not be shattered. However, as he record shows that in the instant case, PW.11 being of 16 years of age, PW.3 of 14 and PW. 8 of 12 years, have been found to have sufficient understanding and intelligentia to depose about the incident as it occurred in front of their eyes. In their cross-examination they could not be shattered. 42. We have considered this aspect in the light of established principles laid down by judicial pronouncements by Hon'ble Apex Court from time to time. The test as laid down is to judge the understanding and intelligence of the child and to scrutinize carefully. There is no straight jacket formula for assessing the intelligence or any rules for the purpose. The satisfaction of the Judge recording should be there. 43. Full Bench of Hon'ble Apex Court in the mailer of Panch hi and others vs. State of U.P. with National Commissioner for Women vs. State of U.P. reported in AIR 1998 SC 2726 held in para 11 as under: "It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring." 44. In a later case Pratap Singh and Am. vs. State of Madhya Pradesh. AIR 2006 SC 511 = RLW 2006(2) SC 1496, Hon'ble Apex Court found that the statements of PW.2 Mangal Singh a minor were not believable because he had contradicted himself on material particulars. Here also Hon'ble Apex Court observed in para 16 that the Court did not intend to lay down a law that in all situations evidence of a minor must be corroborated by other evidence. 45. In Dhanraj vs. State of Maharashtra - 2002 (7) SCC 125, Hon'ble Apex court while dealing with the evidence of minor of 12 years observed in para 7 as under: "7 ..... Nothing has been brought in his cross examination that being aged about 12 years, there was any infirmity in his understanding of the facts perceived and his ability to narrate the same correctly. Nothing has been brought in his cross examination that being aged about 12 years, there was any infirmity in his understanding of the facts perceived and his ability to narrate the same correctly. As a matter of fact, nothing as such has been indicated to us on this behalf in evidence. This observation shall also hold good in so far as the statement of PW.2 is concerned, since he was then studying in 8th standard. As a mailer of fact, a student of 8th standard, these days acquires sufficient understanding to perceive the facts and to narrate the same." 46. We are satisfied that the three witnesses (who may be child witnesses of the age of 16, 14 & 12 yrs.) have deposed truthfully and being students of the same school as was their teacher (deceased Harinarayan) as Well as Vinod PW.10 son of Nagarmal Sunaar who were residents of the house, outside where the deceased was assaulted, are natural witnesses. Keeping into account that it was summer time and the incident took place at (1.30 to 7.00 AM, a time when people are at home. Deceased was brought by these witnesses to the hospital. PW.11 's Parcha Bayan had been recorded as Ex.P.24 within no time of two hours of the incident giving him hardly any time to cook up a version. 47. The Judgment in the mailer of Latu Mahto and Anr. vs. State of Bihar (Now Jharkand) ( 2008(8) SCC 395 ), relied upon by the learned defence counsel to substantiate his submission that the incriminating circumstances of the prosecution witnesses having witnessed the incident, not having been put to the accused, vitiates the trial, is clearly distinguishable and not applicable to the facts of the instant case. 48. In that case, the accused though, had been convicted under Section 302/149 for the offence of murder and for forming unlawful assembly but there was only one relevant question put to the accused under Section 313 Cr.P.C. and incriminating circumstances were not put to the accused. Moreover, charges were also not framed properly and there was no speaking order. The observations of three Judges Bench decision in Shivaji Sahabrao Bobade vs. State of Maharashtra - 1973(2) SCC 793 at page 806 are as under: "16. Moreover, charges were also not framed properly and there was no speaking order. The observations of three Judges Bench decision in Shivaji Sahabrao Bobade vs. State of Maharashtra - 1973(2) SCC 793 at page 806 are as under: "16. Contextually we cannot bypass the decision of a three Judge Bench of this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra ( 1973(2) SCC 793 ) as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judge in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence." "16... It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failure in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused." 49. The object of examination of accused is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him and an opportunity to know as to what is the case against him before entering upon his defence. In the instance case, although each and every circumstance and evidence has been put to the accused by way of questioning generally on the case so as to enable him to explain the circumstance. 50. As held in Shivaji's case (supra) that even if some omission is there, it does not itself vitiate the trial unless prejudice caused to the accused is established. 51. Only because the format of the question is not that PW.1 has stated this and that PW.2 has stated like this, does not prejudice, in any manner, the accused so long is incriminating circumstances are put to him. 52. In view of settled principles of law, in this regard as discussed above, this argument of the learned defence counsel also has no force. 53. It is true that requirement under Section 313 Cr.P.C. is not an empty formality. 52. In view of settled principles of law, in this regard as discussed above, this argument of the learned defence counsel also has no force. 53. It is true that requirement under Section 313 Cr.P.C. is not an empty formality. The whole object is that the attention of the accused should be drawn to the specific points in the change in the evidence on which the prosecution claim that the case is made out against the accused so that he may be able to give such explanation as he desires to give. The purpose of Sec. 313 Cr.P.C. is set out in the opening words which are "for the purpose of enabling the accused personally, to explain and circumstances appearing in the evidence against him. 54. In the instance case as many as 34 questions with regard to all the incriminating circumstances were put. Hence no prejudice can be said to have been caused. 55. As regards the injuries on the person of accused Mohan Nayak and Ramavtar, Dr. Saboo PW.5 says that he medically examined Mohan Nayak and Ramavtar on 31.7.79 at 8.20 PM; meaning thereby after 86 hours from the time of incident i.e. 10.7.79 at 6.30-6.45 a.m. and then there is nothing to link these injuries with the incident taking place on 10.7.79 at 6.30-6.45 a.m. 56. It is true that non-explanation of injuries of accused assumes greater significance where the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. But here such is not the case. 57. The only issue in this regard which has been debated at the Bar and in respect thereof we have to take a decision in appeal, is whether the is testimony of PW.3, PW.11, PW. 8 leads to proving of offence punishable u/S. 302 IPC or of conversion of offence punishable u/S. 304 Part II IPC is required. 58. 57. The only issue in this regard which has been debated at the Bar and in respect thereof we have to take a decision in appeal, is whether the is testimony of PW.3, PW.11, PW. 8 leads to proving of offence punishable u/S. 302 IPC or of conversion of offence punishable u/S. 304 Part II IPC is required. 58. In the matter of Sunder Lal vs. State of Rajasthan (2007 (10) SCC 871), Hon'ble Apex Court, where the weapon of offence used was gandasi and except one blow which was inflicted upon the head of the deceased, all other blows were directed towards non vital parts I.e. legs and the hand, followed the locus classics dictum of Vivian Bose, J. In Virsa Singh's case reported as Virsa Singh vs. State of Punjab, AIR 1958 SC 465 . As extracted in Sunder Lal's case (supra), the Supreme Court has extracted various observations in Virsa Singh's case as under: "16. In Virsa Singh vs. State of Punjab, ( AIR 1958 SC 465 ), Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 17. The ingredients of clause "Thirdly" of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows: '12. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 17. The ingredients of clause "Thirdly" of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows: '12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, "thirdly." First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." 18. The learned Judge explained the third ingredient in the following words (at page 468): '16 ... "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion." 19. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied; I.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in .the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. 20. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. II1ustration (c) appended to Sec.300 clearly brings out this point. 21. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (1) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons-being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 22. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. 22. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages." 59. In the instant case there is no such evidence to show that the blow on head caused by Todarmal by Kulhadi, got misdirected hitting the brain tissues which is stated to be the cause of death by PW.5 Dr. Nath Mal Saboo 20 vide Ex. P.13 Post Mortem Report. The injury No. 1 appears to have been caused with such a force that brain tissue was taken away from the fronto parictal region of both hemispheres in the region of vertex with skin and bone flap. Skin with all its layers and bones vertex were found cut in one layer, taking parts of both parietal bones forming vertex. 60. Mambrance was found absent in the region of the injury of scalp and bones of skull. All injuries were ante mortem. 61. The post mortem was conducted on 11.7.79 at about 9.30 a.m. by PW.5 who has opined the cause of death to be the injury on brain tissues and the probable time of death is stated to be more than 24 hours and less than 48 hours. In the opinion of PW.5 Dr. Saboo, injury No. 1 along with internal effects was sufficient to cause death in the ordinary course of nature. 62. PW.II in Ex. P/24 clearly mentioned that earlier also Mohan Lal Vaidya and his sons had beaten them and that there was inimical relations between the parties. So far as the explanation of false implication is concerned, there is nothing on record about any FIR or case or anything else. Except that the accused deposed against Damodar in a criminal case and Damodar was the brother of deceased does not establish that accused have been falsely implicated. In this regard, Ex. D/8 has been fJled but there is nothing to show that Damodar even lived with master Harinarayan or there was some cross case etc. 63. Except that the accused deposed against Damodar in a criminal case and Damodar was the brother of deceased does not establish that accused have been falsely implicated. In this regard, Ex. D/8 has been fJled but there is nothing to show that Damodar even lived with master Harinarayan or there was some cross case etc. 63. To put it in a nutshell the case cannot fall in the category of Sec. 304 Part 11 and the Trial Judge has rightly sustained the conviction on the basis of proper appreciation of evidence and other circumstances. 64. Therefore, the finding of conviction of accused Todarmal u/S. 302 IPC is upheld. We do not find any illegality or perversity. 65. As regards other accused and other charges levelled, we have scanned through the record, in particular the evidence of PW.3 Saroi, PW. 8 Babulal, PW.11 Rajendra, PW. 5 Nathmal, PW. 13 AS.I. Ram Swaroop along with link & circumstantial evidence, judgment and findings of learned trial Court to the effect that for the first incident, there, were only four persons namely Devki Nandan, Todar Mal, Mohan Nayak and Ramavtar named in Ex.5 P.211 and, therefore, offences punishable under Sec. 147, 148 IPC were not made out. The commission of offence by co-accused in furtherance of common intention of all is also not established because PW.3 Saroj, who is an eye witness and the daughter of deceased was confronted with her previous statement Ex. D/3 wherein she had stated in that Mohan "Nayak and Devki Nandan were sitting on the Chabutra and accused Todarmal and Ramavtar came from front whereas in her court statement she stated that all four came from front. Devki Nandan was not assigned any injury, therefore, learned trial Court rightly held that there was no evidence to show that the accused acted in furtherance of common intention of all and that the accused Mohan Nayak, Ramavtar and Todarmal were responsible for their individual acts. The injuries caused by Mohan Nayak and Ramavtar on nose and cheek (non vital parts) by sharp weapon, opined as simple, have been clearly proved and they have been rightly made guilty under Sec. 324 IPC for the first incident. 66. It was argued by Sh. Mahendra Goyal, learned counsel for the accused that trial Judge has rightly convicted accused Todar Mal under Sec. 302 IPC and Mohan Nayak and Ramavtar under Secs. 66. It was argued by Sh. Mahendra Goyal, learned counsel for the accused that trial Judge has rightly convicted accused Todar Mal under Sec. 302 IPC and Mohan Nayak and Ramavtar under Secs. 324 IPC simplicitor and not with 324 read with 34 IPC. He opposing the arguments of learned Public Prosecutor and learned counsel for the complainant, relying on the principle of law laid down in the case of Sukhram vs. State of M.P. Manh/SC/0578/1989, argued that the conviction of these two appellants namely Mohan Nayak and Ramavtar for substantive offences read with section 34 IPC cannot be sustained as co-accused Devki Nandan had been acquitted and leave to appeal against him was also not granted. According to him, there was a legal impediment resulting from acquittal of co-accused. 67. On the basis of discussion made herein above, we do not find any illegality or perversity in the finding of Trial Judge against Mohan Nayak & Ramavtar under Sec. 324 IPC for causing simple injuries on the nose and cheek of deceased by sharp weapon. 68. So far as the injuries caused to PW.9 Radhey Shyam, PW.3 Saroj, and 35 PW.11 Rajendra Pertaining to the second incident in the hospital are concerned, PW.5 Dr. N.M. Saboo examined Radhey Shyam & prepared Ex. P .12 which shows that all the injuries were simple in nature. Injuries No. 1 & 2 were caused by blunt object and injury No. 3 by chemical burn. Dr. Saboo found two injuries on the person of Saroj PW.3 being incised wound on left thigh and multiple areas of brownish black, depigmented skin of left lower limb more on knee region back, also small scattered area on right lower limb, on left upper limb, more on left fore arm back, right fore arm, anteriorly, on face right side near the cheek, on the chin, front of neck, and back of left side of cheek, soft and moise. Out of the two injuries shown in Ex. P.11, injury No. 1 was simple by sharp weapon whereas injury No.2 was opined to have been caused by chemical burns and grievous because of there being likelihood of permanent scar. 69. In the same manner, PW.11 Rajendra was medically examined and as mentioned in Ex. P. 10, PW. 5 Dr. N.M. Saboo found 6 simple injuries being incised wounds, contusion, lacerated wound. 69. In the same manner, PW.11 Rajendra was medically examined and as mentioned in Ex. P. 10, PW. 5 Dr. N.M. Saboo found 6 simple injuries being incised wounds, contusion, lacerated wound. Injury No. 7 was brown black depigmented skin on the face right and left side front of nose, soft and moise and there was no red line of demarcation and no vesicles. Injury No.2 of Saroj and injury No.7 of Rajendra have been opined to be grievous because of there being likelihood of permanent scar. Doctor has not opined that these injuries were dangerous to life. He has also not opined definitely that they were permanent scads. He has also not stated that the depth of burn was of full thickness. 70. In this regard, the authority Bailey & Loves-Short Practice of Surgery Revised by AJ. Harding Rain H. David Ritchie-Nineteenth Edition was produced before us. The authority dealing with "Burns and Scars" .dealt with Scarring and Healing as under: Healing: The depth of a burn determines the manner of healing. Two main grades are considered: (a) partial skin thickness burning and (b) a full thickness burn. Scarring: Partial thickness burns usually heal without much scaring." 71. Since the doctor has not shown the thickness of the burns i.e. whether they were partial skin thickness burns or full thickness burn and he also was not definite about the injury No. 2 of Saroj and injury No. 7 of Rajendra being permanent scar. He opined them to be grievous because of likelihood of permanent scar and that does not fall within the purview of Sec. 320 IPC. The accused becomes entitled to the benefit. Hence they can only be said to be covered under Sec. 324 IPC. 72. We note that the trial Judge has relied upon the version of PW.11 and PW. 3 who are star witnesses to establish the circumstances of the four of the accused attacking deceased first near Naagar Mal Sunar's house on his way to the school with his two kids & Babulal, and thereafter chasing him to the hospital by all eight laced with weapons. 3 who are star witnesses to establish the circumstances of the four of the accused attacking deceased first near Naagar Mal Sunar's house on his way to the school with his two kids & Babulal, and thereafter chasing him to the hospital by all eight laced with weapons. Though specific act & weapon for the hospital incident have not been assigned but causing injuries by throwing acid and pelting stones from the ventilator and by piercing the gupti from the widened doors of the closed room causing injuries on the thigh of PW.3 and on the person of PW.11 Rajendra, thereby causing incised lacerated wounds besides acid burns here and there has been proved by these witnesses. 73. In his cross-examination, PW.II has been confronted with his earlier version which he had given to the investigating officer i.e. his statement record under Sec. 161 Cr.P.c. Ex. D/7 and Parcha Bayan Ex. P/24. There is not a whisper of throwing chilli powder from the ventilator in Ex. P.24. 71. As discussed supra, that though PW.3 and PW.11 are of the age of 14 & 16 years and are the son & daughter of deceased, still they are natural witnesses and in view of the above circumstances, their testimony remains unimpeachable as far as their visual account of the incident is concerned and they have fully proved the incident in the hospital room whose testimony has been corroborated by other independent witnesses PW.2 Bhagwana, PW. 9 Radhey Shyam, PW.10 Vinod and PW.7 Santra and others. 75. The story of Dwarka Prasad being brought to the hospital was tried to be established by accused but there is nothing on record to establish that there was a free fight or that complainant party gave' him or anyone beating and then it is on record that they took Dwarka Prasad back in the bus without taking any treatment for reasons best known to them. 76. In view of above, as regards the incident in the hospital room, it can safely be concluded that prosecution has proved that the accused more than five in number formed unlawful assembly after the first incident in the 'rasta' and laced with weapons chased the injured and his kids upto the hospital and on their being locked even went to the extent of piercing the door by sharp weapon and throwing acid and stones from the ventilator. 77. 77. In our considered view the offence with regard to the second incident in the hospital, which can be said to have been made can only fall under the provisions of Sec. 324 read with 149 IPC and not u/Sec. 307/149 IPC. 78. Section 149 of the IPC creates a specific and distinct offence. The vicarious liability of the members of an unlawful assembly extends to those acts which are done in prosecution of the common object of the unlawful assembly and such offences as the member of the unlawful assembly knew to be likely to be committed in prosecution of common object. 'Each case has to be adjudged according to the facts as unfolded. 79. In the instant case, it is clear that the principle embodied in this section is attracted, the members of this unlawful assembly knew that by their co-joint participation in the offence actually committed it was likely to be committed in the prosecution of their common object i.e. of the attack on the victim this can well be gathered from the holding of deadly weapons of offence by each member of the unlawful assembly. 80. Consequently, appeal No. 296/1980 filed by Tadar Mal and Devkinandan is partly allowed and conviction of Todar Mal under Sec. 302, 147, 321 IPC is upheld and he is acquitted of offence punishable under Sec. 30 307/149 IPC. However, he is found guilty of offence punishable under Sec. 324/119 IPC. 81. Conviction of Devki Nandan under Sec. 147 IPC is upheld. However, his conviction under Sec. 307/149 IPC is set aside and he is acquitted of the offence instead he is found guilty for the offence punishable under Sec. 324/149 IPC. 82. Appeal No. 298/80 filed on behalf of Nagar Mal, Devki Nandan, Mohan Nayak, Prakash Nayak, Ramavtar and Prakash Sunar is partly allowed and their conviction under Sec. 147 IPC is upheld. However, they are acquitted of the offence under Sec. 307/149 IPC and are found guilty for the offence under Sec. 324/147 IPC. 83. Out of seven accused-appellants, accused Naagar Nayak died during the pendency of the appeal by/against him stood dismissed as abated. 84. Cr. Appeal No. 555/81 filed by State of Rajasthan is dismissed. 85. Heard on the point of sentence. 86. 83. Out of seven accused-appellants, accused Naagar Nayak died during the pendency of the appeal by/against him stood dismissed as abated. 84. Cr. Appeal No. 555/81 filed by State of Rajasthan is dismissed. 85. Heard on the point of sentence. 86. This fact cannot be ignored that the incident pertains to the year 1979; meaning thereby that more than three decades have passed by since the date of occurrence. Except accused Todar Mal, all the accused have been found guilty of the offences which are punishable with maximum imprisonment of three years and or fine. In view of the long lapse of time and the nature of offence proved, it was urged on behalf of the accused appellants that the accused be granted the benefit of Sec. 360 Cr.P.C. and be released on probation. 87. Learned counsel. for the complainant and Public Prosecutor vehemently opposed any leniency. 88. The Nominal roll of accused appellants is as under: (i) Todar Mal Arrested on 10.7.70 Released on 3.5.80 Judicial custody 30.7.80 Released on bail 18.8.80 (10 months 16 days) (ii) Devkinandan Arrested on 10.7.79 Released on 12.11.79 (04 months 16 days) (iii) Mohan Nayak rested on 10.7.79 Released on 19.1.80 (06 months 13 days) (iv) Ramaavtar Arrested on 10.7.79 Released on 8.1.80 (06 month 02 days) (v) Prakash Nayak Arrested on 10.7.79 Released on 17.9.79 (02 months 09 days) (vi) Prakash Soni Arrested on 10.7.79 Released on 18.10.79 (03 months 10 days) 89. In view of the long lapse of time from the date of incident, in our considered view the interest of justice will be served if accused Devkinandan, Mohan Nayak, Ramavtar, Prakash Nayak and Prakash Soni are sentenced for the offences under Sec. 147, 324, 149 for the periods they have already undergone. 90. Accordingly, bail bonds of accused Devkinandan, Mohan Nayak, Ramavtar, Prakash Nayak and Prakash Soni are cancelled. They need not to surrender before the Court. 91. As regards, Todar Mal, he was arrested on 10.7.79 and released on 3.5.80 and again remanded to judicial custody on 30.7.79 and then released on 18.8.80; meaning thereby that he remained behind the bars for 10 months and 16 days. Besides the conviction under Sec. 302, accused Todarmal has also been found guilty of offence under Sec. 147, 324, 324/149 IPC. Besides the conviction under Sec. 302, accused Todarmal has also been found guilty of offence under Sec. 147, 324, 324/149 IPC. In view of the treatment given to all his co-accused for these offences, we deem it just and proper to award the sentence of 10 months and 16 days Le. the period already undergone for the offence under Sec. 147, 324, 324/149 IPC. 92. However, the sentence of life imprisonment for 302 IPC and a fine as ordered by the trial Court is upheld. Needless to mention that he will remain entitled to the benefit of Sec. 428 Cr.P.C. The accused Todarmal is on bail. He is directed to surrender before the trial Court for suffering the remaining sentence of imprisonment, failing which the trial Court shall take steps for his custody and to send him to jail for suffering remaining sentence. 93. The record be sent forthwith for doing the needful.