Hon'ble Surendra Kumar, J.: 1. Heard Sri Janardan Prasad Tripathi, learned counsel for the appellants and Sri Sangam Lal Kesharwani, learned AGA for the State. 2. This criminal appeal arises out of judgment and order dated 27.5.1983 passed by IV Additional Session's Judge, Aligarh, in Session's Trial No.66 of 1982, State Vs. Jumma and 13 others ( Crime No.192 of 1980) Police Station Sasni, District Aligarh whereby all the fourteen accused persons, Jumma A-1, Yasin A-2, Bunda A-3, Gulsher A-4, Munna A-5, Zafruddin A-6, Amanat A-7, Sher Khan A-8, Ismail A-9, Faqira A-10, Jan Mohammad A-11, Rashid A-12, Babu A-13 and Bhura A-14 were convicted under Sections 302 read with Section 149 IPC and sentenced to imprisonment for life except Faqira A-10. A-1 to A-4 Jumma, Yasin, Bunda and Gulsher were also convicted under Section 148 IPC and sentenced to undergo two years rigorous imprisonment, remaining appellants A-5 to A-14 were convicted under Section 147 IPC and sentenced to undergo two years rigorous imprisonment except Faqira A-10. All the appellants were further convicted under Sections 324 read with Section 149 and 323 read with Section 149 IPC and sentenced to undergo one year rigorous imprisonment and nine months rigorous imprisonment respectively. All the sentences were directed to run concurrently. 3. Appellant No.10 Faqira was found guilty for the offences charged against him, but he was given benefit of Section 30 of U.P. Children's Act as his age was determined to be about 13 years on the date of the occurrence which took place in the year 1980. Appellant Faqira was ordered to execute a personal bond in a sum of Rs.3,000/- with two reliable sureties in the like amount for his good behaviour for the period of three years and during this period he was directed to be supervised by his father who was made responsible for his good behaviour. Till the execution of bonds, he was directed to be detained in prison as a youthful offender and kept separately from other jail inmates. All the appellants including appellant no.10 have assailed legality and correctness of their aforementioned conviction. 4. Appellant no.1 to 4 and appellant no.8 to 11 and 13 have died pending consideration of their appeals and hence this appeal in respect of them stood abated. 5. All the appellants including appellant no.10 have assailed legality and correctness of their aforementioned conviction. 4. Appellant no.1 to 4 and appellant no.8 to 11 and 13 have died pending consideration of their appeals and hence this appeal in respect of them stood abated. 5. In the instant appeal, we are at this moment concerned only with Munna A-5, Zafruddin A-6, Amanat A-7, Rashid A-12 and Bhura A-14 ( surviving appellants). It may be noted here that appellant no.1 to 4 who were armed with Farsa have already died. The surviving appellants are alleged to be armed with Lathis and wielded the same during commission of the offence. 6. The prosecution story in a nutshell is that in the night intervening between 10th and 11th of June, 1980, at about 00:30 a.m. in village Gopalpur situated within Police Circle Sasni, District Aligarh, the accused persons formed an unlawful assembly with the said common objects of causing death of Ganga Prasad and injuring others with the weapons held by them and, in prosecution of the said common object, they did commit murder of Ganga Prasad and caused hurt to Surajpal Singh, Chandrapal and Ram Swarup with Lathi and Farsa. First Information Report of the occurrence was made by Surajpal Singh at Police Station Sasni, on 11.6.1980 at 1:20 am, Ext. Ka-2 upon which a case against the accused persons was registered and investigated. 7. Head Constable Balvir Singh PW-5 was posted as Head Moharrir on 11.6.1980 at Police Station Sasni. He prepared Chik FIR Ext. Ka-3 on the basis of the written report of Surajpal Singh Ext. Ka-2 and at the same time he registered the case in G.D. at Serial No.3 dated 11.6.1980 and proved its copy Ext. Ka-4. 8. S.I. Shiam Singh PW-6 was posted as Second Officer at Police Station Sasni on 11.6.1980. The present case was registered at Police Station Sasni, in his presence and he investigated the case. On the next day, he inspected the scene of occurrence at 7:00 in the morning and prepared the site plan Ext. Ka-5. From scene of the occurrence, he collected blood stained and plain earth Ext.1 and Ext.2 in the presence of witnesses and prepared memo in respect of it, Ext Ka-6. On the next day, he inspected the scene of occurrence at 7:00 in the morning and prepared the site plan Ext. Ka-5. From scene of the occurrence, he collected blood stained and plain earth Ext.1 and Ext.2 in the presence of witnesses and prepared memo in respect of it, Ext Ka-6. He recorded statements of necessary witnesses but before he could complete the investigation of the case, he was transferred from Police Station and investigation of the case was completed by S.I. Krishan Murari who submitted the charge sheet against the accused persons, Ext Ka-7. 9. Dr. R.A. Singh PW1 who was posted as Medical Officer, Malkhan Singh Hospital at Aligarh, conducted post mortem examination on the body of the deceased Ganga Prasad aged about 55 years on 11.6.1980 at 3:15 p.m. The dead body was brought to him by constables Charan Singh and Askand Yar Khan. The deceased had died about half day before. Upon external examination of the body of the deceased Ganga Prasad, his built was found average and rigor mortis was present in the whole of the body. Following ante mortem injuries were found on his person:- ( i) Lacerated wound 1 ½ '' x 3/4'' x bone deep on the scalp, 8 ½'' above the nose. ( ii) Lacerated wound 3/4'' x 1/3'' x bone deep, ¾'' ahead of injury no.1 on the scalp. ( iii) Contusion 5 ½'' x 3 ½ '' on the right side of the temporal region above the ear. Upon internal examination of the body of the deceased, clotted blood was found under skin of the scalp with fractures of parietal, frontal and right temporal bones. The right side of the brain was found lacerated with clotted blood over filled in it and membrane of the brain was torned off. Two oz. of mucoid fluid was found in the abdomen. The death of the deceased was due to coma and shock. The doctor has proved post mortem examination report Ext. Ka-1. 10. Surajpal Singh, first informant PW-2, Chandrapal PW-3, Ram Swarup PW-4 also sustained injuries in the present incident. 11. Dr. R.P. Sharma PW-7 who was posted as Medical Officer Incharge P.H.C. Sasni examined Chandrapal aged about 67 years on 11.6.1980 at 4:00 a.m. and found following injuries on his person: ( i) Contusion 4 cm x 1 cm on the right shoulder. 11. Dr. R.P. Sharma PW-7 who was posted as Medical Officer Incharge P.H.C. Sasni examined Chandrapal aged about 67 years on 11.6.1980 at 4:00 a.m. and found following injuries on his person: ( i) Contusion 4 cm x 1 cm on the right shoulder. ( ii) Contusion with abrasion 4 cm x 2 cm on the waist in the middle. ( iii) Incised wound 5 cm x 1 cm x bone deep on the left palm on the lower portion of it. Margins of injury were sharp and clean cut and x-ray was advised. Injuries nos.1 and 2 were caused by some blunt weapon while injury no.3 was caused by some sharp edged weapon like Farsa. All the injuries were found to be simple except injury no.3 which was kept under observation and all injuries were fresh at the time of examination. 12. Dr. R.P. Sharma PW-7 who was posted as Medical Officer Incharge P.H.C. Sasni also examined Ram Swarup aged about 60 years on 11.6.1980 at 4:10 a.m. and found following injuries on his person: ( i) Lacerated wound 2 cm x 5 cm x skin deep on the right side head, 9 cm above the right ear. ( ii) Contusion 6 cm x 1 cm on the right arm upper part outer aspect upper 1/3. ( iii) Abraded contusion 5 cm x 2 cm on the left forearm lower 1/3 back aspect. All injuries were simple, caused by some hard blunt weapon and were fresh at the time of examination. The doctor proved injury reports Ext. Ka-8 and Ka-9 respectively. 13. Dr. G.S. Gupta PW-8 who was posted as Medical Officer in Malkhan Singh Hospital, Aligarh, examined Surajpal Singh aged about 31 years on 11.6.1980 at 4:55 a.m. and found following injuries on his person: ( i) Lacerated wound 1 cm x 1/2 cm x muscle deep on the tip of left thumb at the last phalange. ( ii) Abrasion 4 cm x 1 cm on the right forearm in the front and middle of it. ( iii) Complain of pain on the left shoulder where no visible mark of injury could be detected. All injuries were found to be simple, were caused by some blunt weapon and were fresh at the time of examination. The doctor proved medical report Ext. Ka-10. 14. ( iii) Complain of pain on the left shoulder where no visible mark of injury could be detected. All injuries were found to be simple, were caused by some blunt weapon and were fresh at the time of examination. The doctor proved medical report Ext. Ka-10. 14. Four accused persons Jumma, Yasin, Bunda and Gulsher were charged under Section 148 IPC and remaining ten accused persons were charged under Section 147 IPC. All the accused persons were charged under Section 302 read with Section 149 , 323 read with Section 149 and 324 read with Sectin 149 IPC. Charges were readover and explained to them who pleaded not guilty and claimed to be tried on the said charges. 15. In support of the prosecution case, in all eight witnesses were examined. Dr. R.A. Singh PW-1 conducted autopsy on the dead body of the deceased Ganga Prasad and prepared post mortem report Ext. Ka-1, Head Constable Balbir Singh PW-5 was formal witness and proved Chik FIR Ext. Ka-3, G.D. entry Ext. Ka-4, S.I. Shiam Singh PW-6 is Investigating Officer of the case who had investigated the case and had prepared relevant documents. He also proved charge sheet Ext. Ka-7 which was submitted by Krishna Murari. Dr. R.P. Sharma PW-7, Dr. G.S. Gupta PW-8 are formal witnesses, they medically examined three persons who were injured in the incident and proved their injury reports. In the ocular testimony, the first informant Surajpal Singh PW-2, Chandrapal PW-3 and Ram Swarup PW-4 ( who are injured witnesses) were examined by the prosecution in the present case. 16. It is evident from testimonies of three injured eyewitnesses that in the night in question, when they heard alarm and noise at the house of Babu Khan and also heard sound of fires, they went towards the house of Babu Khan raising alarm. Before they could reach the house of Babu Khan, the accused Jumma met them on the way and warned them that in case they proceeded ahead, they would be killed. Jumma told these eyewitnesses to return back whereupon they returned to their house and set fire to Phoos in front of the house of PW-2 after taking the same from thatch. After 10-15 minutes, when alarm subsided, fourteen accused persons armed with Lathis and Farsas came in front of the house of PW-2 and started belabouring all of them. Jumma told these eyewitnesses to return back whereupon they returned to their house and set fire to Phoos in front of the house of PW-2 after taking the same from thatch. After 10-15 minutes, when alarm subsided, fourteen accused persons armed with Lathis and Farsas came in front of the house of PW-2 and started belabouring all of them. Four accused persons Jumma, Bunda, Yasin and Gulsher were armed with Farsa each and remaining ten accused persons were armed with Lathis. As a resulting of beating by the accused persons, Ganga Prasad fell down at the distance of 150-200 paces from his house. 17. PW-2, PW-3 and PW-4 also sustained injuries in the said Marpit. These three injured persons and others had seen the occurrence. Two or three days before the present occurrence, she buffalo of Babu Khan had entered Rizka field of the first informant whereupon exchange of abuses had taken place between PW-2 and Babu Khan. Thereafter, Babu Khan had threatened to see him. According to the evidence of injured witnesses, there was only one house of Hindu in the village in which these injured witnesses and their family members were residing. The total remaining population of the village was of Muslims. After this occurrence, the injured eyewitnesses and their family members had left the village and were residing in Balwant Ki Nagaria due to fear of the accused persons. The injured Ganga Prasad succumbed to the injuries in the hospital. Presence of injuries on the person of three injured eyewitnesses guarantees and establishes their presence during the incident. 18. It is established from evidence of Dr. R.A. Singh PW-1, Surajpal Singh, Chandra Pal, Ram Swarup, PW-2 to PW-4, that Ganga Prasad sustained three injuries on his head as a result of which he subsequently died. Injuries found on the person of these three eyewitnesses are proved not only from their evidences but also from evidence of the doctors PW-7 and PW-8. Post mortem report Ext. Ka-1 and injury reports Exts. Ka-8 to Ka-10 goes to prove that injuries of three eyewitnesses and deceased were caused to them during the incident. 19. The occurrence is said to have occurred in the intervening night of 10/11.6.1980 at 00:30 am. and first information report of the occurrence was lodged on 11.6.1980 at 1:20 a.m. the same night. Ka-1 and injury reports Exts. Ka-8 to Ka-10 goes to prove that injuries of three eyewitnesses and deceased were caused to them during the incident. 19. The occurrence is said to have occurred in the intervening night of 10/11.6.1980 at 00:30 am. and first information report of the occurrence was lodged on 11.6.1980 at 1:20 a.m. the same night. Thus there is absolutely no delay in making the report of the occurrence thereby excluding all possibilities of embellishment or consultation. Hence, it cannot be said that time was given to think over the matter to falsely implicate the accused persons. All the three injured eyewitnesses are absolutely independent witnesses having no enmity whatsoever to falsely implicate the accused persons in this case. 20. So far as contention of the learned counsel for the appellants regarding false implication of the accused persons at the instance of the prosecution witnesses is concerned, in absence of any strong reason resting with these injured witnesses to come up with such version of the occurrence against so many persons, false implication of the accused persons at the instance of these witnesses could not be conceived. 21. The contention of the learned counsel for the appellants is that the prosecution has set up a motive for commission of offence in this case to the effect that two or three days prior to the occurrence, she buffalo of the accused Babu Khan grazed Rizka field of the first informant Surajpal Singh and in that connection, there had been exchange of abuses between them when the accused Babu Khan had threatened to see him ( Surajpal Singh) later on. The motive as set up in this case is not inconsistent and appellants' contention after scanning the whole evidences on record is not acceptable to us. 22. The motive, as set up by the prosecution, is mentioned in the first information report lodged by Surajpal Singh and has also been accepted in this case by him as PW-2. If for a moment, contention of the learned counsel for the appellants about weak motive is considered, the prosecution version cannot be rejected because of simple fact that there are convincing and reliable ocular testimonies of three injured eyewitnesses against the accused persons. If for a moment, contention of the learned counsel for the appellants about weak motive is considered, the prosecution version cannot be rejected because of simple fact that there are convincing and reliable ocular testimonies of three injured eyewitnesses against the accused persons. The state of mind of the accused persons cannot be read, for what reasons the accused persons committed the alleged offence, it is their own state of mind which cannot be explicitly explained by other party. In this case, it might be probable that the accused persons committed the alleged offences feeling highly insulted because of exchange of abuses in respect of the incident of grazing Rizka field of the first informant Surajpal Singh by she buffalo of the accused Babu Khan ( accused) 23. The next contention of the learned counsel for the appellants is that the deceased as well as three injured persons sustained the said injuries as they participated as offenders in the occurrence of the dacoity committed at the house of Babu Khan, Yasin and Rashid ( accused). 24. The suggestion to the prosecution witnesses during cross examination on behalf of the accused persons was given that dacoity was committed on the date and time of the incident at the house of the accused Babu Khan in which Ganga Prasad and other prosecution witnesses had also participated and in the said occurrence of dacoity, Ganga Prasad ( deceased) and three injured eyewitnesses PW-2 to PW-4 were injured by Babu Khan and others and due to injuries sustained in the dacoity, Ganga Prasad died. This suggestion put forth by the defence in this regard is not at all tenable and convincing. The suggestion has also not been explicitly and faithfully pleaded in this case by the defence. There is absolutely no evidence in this case to show that any dacoity was committed at the house of the accused Babu Khan. 25. It would appear from testimony of PW-5 Head Constable Balbir Singh that on 11.6.1980 at about 2:00 am. on the report of the accused Babu Khan, a case was registered against Ganga Prasad and others as Crime No.192-A of 1980. It also appears from the impugned judgment that when relevant G.D. entry about Crime No.192-A of 1980 entered at Serial No.4 of G.D. Raznamcha was sought to be proved, the learned counsel for the defence objected to its proof. It also appears from the impugned judgment that when relevant G.D. entry about Crime No.192-A of 1980 entered at Serial No.4 of G.D. Raznamcha was sought to be proved, the learned counsel for the defence objected to its proof. The trial court got the same exhibited as Ext. C-1. The observation of the trial court relating to the objection raised by the learned counsel for the defence to prove the said G.D. entry is also indicative of the fact that the defence did not rely upon the said G.D. entry or in any view of the matter was not faithful in its suggestion to the witnesses. The accused persons did not prove the first information report of the case lodged at Crime No.192-A of 1980 by Babu Khan against Ganga Prasad and others. In absence of proof of the first information report of Babu Khan, it cannot be said that Babu Khan made allegation of the dacoity against Ganga Prasad and others and even alleged therein that Ganga Prasad and others were injured in the commission of the said dacoity or while making their escape from the scene of dacoity. Not only this, copy of the first information report or any complaint made by accused Babu Khan was not filed by the defence to prove, with what allegation Babu Khan approached the court against the first informant alone or against others. Obviously, no reason could be shown in this case by the appellants for non-production of the first information report and the complaint of the occurrence made by the accused Babu Khan. Hence it is difficult to conclude that dacoity was committed at the house of Babu Khan in the night in question. The accused Babu Khan did not produce any witness to prove commission of the dacoity at his house against Ganga Prasad and others ( prosecution side). The accused Babu Khan did not enter into the witness box with the permission of the court to prove the factum of dacoity at his house, if other witnesses of the occurrence were not ready to support the version of dacoity for any reason. 26. The accused Babu Khan did not enter into the witness box with the permission of the court to prove the factum of dacoity at his house, if other witnesses of the occurrence were not ready to support the version of dacoity for any reason. 26. After careful and close scrutiny of the whole evidence available on record, we are not inclined to accept the version of dacoity allegedly committed at the house of the accused Babu Khan in the night in which the deceased Ganga Prasad and three injured eyewitnesses sustained injuries. Therefore, this contention regarding commission of dacoity at the house of the accused Babu Khan in the night in question is repelled. 27. One more contention of the learned counsel for the appellants is that there was no sufficient light to enable the prosecution witnesses to identify the accused persons. The accused persons are resident of the same village as that of the injured witnesses and deceased, and in such a situation there can be absolutely no doubt as regards identification of them by the prosecution witnesses. It is established from the evidence of the injured eyewitnesses and from other documents prepared during investigation that some Phoos was burnt by the first informant which could have created sufficient light on the spot to facilitate identification of the accused persons. 28. Learned counsel for the appellants has also thrown light on the statement of the Investigating Officer S.I. Shiam Singh PW-6 to the effect that he did not take any sample of ashes from the spot while making spot inspection of the scene of occurrence and he did not find any trace of ashes at the place of the occurrence. 29. Only minor omission on the part of the Investigating Officers does not discard the prosecution version, creditworty and reliable evidence of three injured eyewitnesses. Phoos was burnt by the first informant at his house and it may be possible that ashes might have been swept by family members of the first informant before arrival of the police on the spot or by movement of the persons on the ground where Phoos was burnt. The ashes might have mixed with earth leaving no traces. It could not be brought on record as to what was condition of the ground where Phoos was burnt. The ashes might have mixed with earth leaving no traces. It could not be brought on record as to what was condition of the ground where Phoos was burnt. It was not a case of dacoity where the Investigating Officer was required to take sample of ashes to prove identification of the offenders by witnesses. It might be possible that Investigating Officer did not attach any importance to picking up of ashes from spot. Since testimony of the eyewitnesses ( injured witnesses) examined in this case is believable and truthful, the prosecution version cannot be rejected merely because of the fact that no sample of ahses was taken by the Investigating Officer. It was not challenged by the accused persons that the prosecution witnesses did not know any of the accused persons prior to this incident and they had no opportunity to identify them at the spot. 30. The last contention of the learned counsel for the appellants is that the appellants had no intention in causing death of the deceased Ganga Prasad. He was allegedly assaulted by as many as fourteen accused persons, out of whom four accused persons used Farsa. The deceased sustained only three injuries on his body i.e. two lacerated wound and one contusion. He did not sustain any injury of Farsa/sharp cutting weapon. If fourteen accused persons assaulted the deceased, the deceased would have sustained several other injuries. Ten accused persons attacked the deceased with Lathis but the deceased sustained only three ante mortem injuries which might be caused by hard blunt object/Lathi. Presence of only three injuries clearly indicates that the appellants had no intention to commit murder of the deceased Ganga Prasad. 31. Considering the facts and circumstances of the case, the appellants can at the most be attributed with the knowledge that if such a number of accused persons attacked the deceased with Lathis, death of the deceased was likely to be caused. On the strength of this arguments, learned counsel for the appellants has submitted that it is not a case of murder but of culpable homicide not amounting to murder. Learned counsel for the appellants has further assailed the impugned judgment stating that the trial court committed manifest error of law in convicting the appellants for offence punishable under Section 302 /149 IPC. Learned counsel for the appellants has further assailed the impugned judgment stating that the trial court committed manifest error of law in convicting the appellants for offence punishable under Section 302 /149 IPC. At the most what can be said is that offence under Section 304/149 IPC is made out against the appellants. 32. Learned AGA taking us through evidence on record has submitted that the deceased sustained fracture of both parietal bones, frontal bones, right temporal bone and brain was found lacerated with clotted blood over head, brain membrane was torned off indicating that there was clear intention of the appellants to commit murder of the deceased. 33. Hon'ble Supreme Court in the case of Joseph Vs. State of Kerala 1994 Crl.L.J. ( SC) 21 has observed that stick/Lathi is a not deadly weapon. In the reported judgment, a quarrel over trivial incident between parties took place. The death was caused by two wooden stick blows by the accused on the head of the deceased. While observing Lathi is not a deadly weapon, Hon'ble Supreme Court held that intention to cause injury sufficient in ordinary course of nature was not established and then conviction was altered to Section 304 Part II IPC from Section 302 IPC and the accused was sentenced to 5 years rigorous imprisonment. 34. In the case in hand, ten accused persons gave Lathi blows upon the deceased but the deceased sustained only three injuries as indicated above. It is true that if ten accused persons give Lathi blows upon a person then they can be attributed with the knowledge that bodily injuries likely to cause death will be the natural outcome but it can only be inferred from facts and circumstances of the case and nature of the evidences of this case that the accused persons had sufficient knowledge that Lathi blows given by them might cause such bodily injuries as was likely to cause death. 35. Supreme Court in the cases of Mer Dhana Sida Vs. State of Gujarat, AIR 1985 SC 386 , Mer Arjansida and others Vs. State of Gujarat 1985 Cri. 35. Supreme Court in the cases of Mer Dhana Sida Vs. State of Gujarat, AIR 1985 SC 386 , Mer Arjansida and others Vs. State of Gujarat 1985 Cri. L.J. 660 ( SC), had observed that where the accused gave blows on the head of the deceased with sticks and they intended or knew themselves to be likely to smash their victim's skull, they must be taken to have known that they were likely to cause death of the victim, and were, therefore, guilty of culpable homicide not amounting to murder. 36. Considering the aforesaid evidence and submissions advanced on behalf of the rival parties, we allow the appeal in part. Conviction of appellants Munna ( A-5), Zafruddin ( A-6), Amanat ( A-7), Rashid ( A-12) and Bhura ( A-14) under Section 302 read with Section 149 IPC is altered to 304 Part ( II) IPC from 302/149 IPC and their sentences for life imprisonment are also modified to 5 years rigorous imprisonment with fine of Rs.10,000/- each for committing offence under Section 304 Part ( II) IPC. In default of payment of fine, each of the appellants shall further undergo one year additional rigorous imprisonment. Appellants Munna ( A-5), Zafruddin ( A-6), Amanat ( A-7), Rashid ( A-12) and Bhura ( A-14) are on bail. Their personal and surety bonds are cancelled and they are directed to be taken in custody and lodged in jail to serve out remaining part of their sentence imposed upon them herein above. Their conviction and sentence for other offences are upheld. If the amount of fine is deposited by the appellants or recovered then out of it 50% shall be given to the first informant as compensation. 37. Let a copy of the judgment be certified to the trial court for it's intimation.