JUDGMENT Hon’ble Ramesh Sinha, J.—The present criminal appeal has been preferred against the judgment and order dated 22.11.1982 passed by IInd Additional Sessions Judge, Gorakhpur in S.T. No. 537 of 1981 convicting the appellants under Sections 302/34 I.P.C. and sentencing them to life imprisonment and further convicting them under Section 307/34 I.P.C. and sentencing them to 7 years R.I. 2. The facts which emerges out from the present case are that an FIR was lodged by by Smt. Sunari Devi on 9.6.1980 stating therein that at about 9 a.m. In the morning, she alongwith her husband, namely, Babu Lal and Jeth, namely, Sukh Lal was fishing at Kiraiya Nala. Shyam Deo and Bhajan Lal besides herself were sitting there to look after the collected fish, when the accused Rudal Singh son of Dashrath Singh, Ranjit Singh son of Rudal Singh, Pirthviraj Singh son of Rudal Singh, Prahlad Singh son of Rudal Singh, Dhruv Singh son of Rudal Singh, Sri Narain Singh son of Lallan Singh, Sharwan Singh son of Sri Narain Singh, Narsingh son of Param Singh, all resident of Village Patka, Police Station-Sahjanwa, District Gorakhpur armed with lathis had arrived at the place of occurrence and all of them tried to take away all the fishes from her husband and her Jeth and further stated that if the same was not given to them they should be done to death, on which all the accused persons forcibly started taking away the fish and on a protest and resistance being made by her husband and Jeth, all the accused persons started assaulting them with lathis on which they had fallen down. On account of the fear of the accused persons, Shyam Deo and Bhajan and she herself could not made any resistance or say anything and the accused after committing the crime in question had fled away from the place of occurrence. On a alarm being raised, many persons of the village had arrived there and they took her husband and Jeth in an injured condition to the District Hospital, Gorakhpur who were also in an unconscious condition. On a alarm being raised, many persons of the village had arrived there and they took her husband and Jeth in an injured condition to the District Hospital, Gorakhpur who were also in an unconscious condition. Thereafter the FIR of the incident was lodged by the PW1-Smt. Sunari Devi, wife of Babu Lal at the Police Station-Sahjanwa, District Gorakhpur at 2 p.m. which was at a distance of 6 miles from the place of occurrence on the same day for the offence under Sections 147/307/323/506 I.P.C., which was marked as Ex. Ka.-7 and the said FIR was also endorsed in the General Diary by the Head Moharrir, namely, Ram Chandra Pandey of the concerned police station. 3. The injured, namely, Sukh Lal was examined at District Hospital, Gorakhpur by Dr. S.J. Singh on 9.6.1980 at 12.55 p.m. and his injuries was proved as Ex. Ka.-3. 4. Similarly, the injured, namely, Babu Lal was also examined by the same doctor on the same day at about 1.15 p.m. on 9.6.1980 and his medical report was proved as Ex. Ka.-4. 5. The injured, namely, Sukh Lal died subsequently on account of the injuries sustained by him, hence, the case was converted under Section 302 I.P.C. The post-mortem of the deceased Sukh Lal was conducted by Dr. K.K. Mall (PW-2) on 10.6.1980 at 4.30 p.m. and the same was marked as Ex. Ka.-2 6. The investigation of the case was conducted by PW10, Kateshwar Tewari and the same was concluded by PW8, Ram Oudh Prasad Chaudhary who was the then S.O. of Police Station-Sahjanwa, District Gorakhpur who took over the investigation from Kateshwar Tewari, PW10, and submitted charge-sheet against all the accused persons on 14.7.1980 for the offence under Sections 147, 302/149/307/149 I.P.C. which has been proved as Ex. Ka.-10. 7. The case was committed to the Court of Sessions, on which charges were framed against all the accused persons by the trial Court on 19.3.1982 for the offence under Sections 147/302 read Section 149 I.P.C. and 307 read with Section 149 I.P.C., who denied the prosecution case and claimed trial. 8. The accused in their statements under Section 313 Cr.P.C. denied the prosecution case and stated that they have been falsely implicated in the present case due to enmity. As regards the eye-witnesses, they are said to be of one family. The accused did not adduce any oral evidence in defence. 9. 8. The accused in their statements under Section 313 Cr.P.C. denied the prosecution case and stated that they have been falsely implicated in the present case due to enmity. As regards the eye-witnesses, they are said to be of one family. The accused did not adduce any oral evidence in defence. 9. The prosecution in support of its case has examined 10 witnesses and 20 documents for proving its case which are on record. 10. PW1-Smt. Sunari Devi, wife of Babu Lal, has reiterated the prosecution case as has been stated by her in the FIR. As per her evidence before the trial Court, she deposed that at about 9 am. in the morning her husband-Babu Lal and her husband’s elder brother Sukh Lal (Jeth) were fishing in Kiraiya Nala. Shyam Deo and Bhajan besides herself were sitting there to look after the collected fish when the accused Rudal Singh son of Dashrath Singh, Ranjit Singh son of Rudal Singh, Prithviraj Singh son of Rudal Singh, Prahlad Singh son of Rudal Singh, Dhruv Singh son of Rudal Singh, Sri Narain Singh son of Lallan Singh, Sharwan Singh son of Sri Narain Singh, Narsingh son of Param Singh, all resident of Village Patka, Police Station-Sahjanwa, District Gorakhpur armed with lathis came on the spot who were armed with lathis and they stated that they should take away all the fishes and in case any obstruction is done they would kill them. Thereafter, all the accused persons tried to take away the fish from her husband and her Jeth who refused to fulfill the illegal demand made by the accused persons. Soon thereafter, all the accused persons started belaboring her husband and her Jeth. On raising hue and cry, many people of the village arrived on the spot. Shayam Deo, Bhajan and the complainant could not offer any resistance. When several persons of the village arrived there, she could bring her husband and her husband’s elder brother (Jeth) in a precarious condition to District Hospital, Gorakhpur. She further told that the injured persons were still unconscious and made a report to the concerned police station for taking necessary action. 11. PW3-Babu Lal who is also an injured witness and brother of deceased Sukh Lal has deposed before the trial Court that on the day of occurrence, two years ago, he and his brother Sukh Lal were fishing in Kiraiya Nala. 11. PW3-Babu Lal who is also an injured witness and brother of deceased Sukh Lal has deposed before the trial Court that on the day of occurrence, two years ago, he and his brother Sukh Lal were fishing in Kiraiya Nala. Shyam Deo and Ram Bhajan, besides his wife Smt. Sunari Devi were present. He further stated that Ram Bhajan and Shyam Deo are the sons of Khoob Lal. Sukh Lal (the deceased ), Babu Lal (PW3) and Khoob Lal are the real brothers being the sons of Shitalu (PW6). He has further deposed that they were fishing on the northern bank of Nala while Komal, Lakhan and Lakhraj were fishing on the southern bank of Nala. The accused arrived on the scene of occurrence traversing culvert on the Nala. They demanded a share of fishes from the deceased brother, namely, Sukh Lal, who refused to fulfill their demand. Thereupon, on the exhortation of Rudal Singh who told Pirthviraj and Prahlad Singh to assault him, on which the said Pirthviraj and Prahlad Singh had given lathi blows to Sukh Lal who received head injury and fell on the ground. He tried to save his brother and also received lathis injury and fell on the ground and became unconscious. He during the course of evidence has admitted that there was an old enmity between the parties. 12. PW4-Ram Lakhan is also an eye-witness. He claims to have been fishing at the time and date of occurrence on the southern bank of Kiraiya Nala, but Babu Lal and Sukh Lal were fishing on the northern bank of the Nala. He has supported the evidence of PW1 and PW3 about the manner of assault and further stated that the two brothers had become unconscious. He further in his cross-examination has stated that he has not appeared as a witness in any case earlier and he further showed the place of occurrence to the Investigating Officer where Sukh Lal and Babu Lal had fallen. 13. PW6-Shitalu is the father of the deceased Sukh Lal and injured Babu Lal. He has deposed on the point of motive and has tried to prove existence of old enmity. He stated that 10-12 years ago, he had taken a contract for fishing on the boundary of Saidabad. Rudal Singh and others had looted his fishes for which he lodged a report. He has deposed on the point of motive and has tried to prove existence of old enmity. He stated that 10-12 years ago, he had taken a contract for fishing on the boundary of Saidabad. Rudal Singh and others had looted his fishes for which he lodged a report. He further deposed that Rudal Singh is the same person who is an accused in this case. He further submitted that prosecution was launched in which a compromise was made and the accused were acquitted. This witness has further deposed about the occurrence which took place on 25.2.1980, i.e., about 4 months earlier to the occurrence in which Pirthviraj and Sundar had let loose their cattle in his field and he had objected to the illegal grazing, whereupon he and his daughter-in-law were assaulted and for which he lodged a report marked as Ex. Ka.-5. He further deposed that no heed was paid to his grievance and so he moved an application to the District Magistrate and Superintendent of Police, Gorakhpur. A copy of the said application is marked as Ex. Ka.-6. 14. PW5-Dr. S.J. Singh is the formal witness who was posted as Medical Officer, District Hospital Gorakhpur on 9.6.1980. He has deposed that at 12.55 p.m. he examined the injuries of Sukh Lal and prepared injury report, marked as Ex. Ka.-3. The general condition of the injured Sukh Lal was poor and patient was also unconscious. The doctor found the following injuries on the person of Sukh Lal : 1. Lacerated wound ½ cm x ¼ cm x depth margin probed on the left side head 9 cm. above the left eyebrow. Bleeding with a traumatic swelling 12 cm. X 10 cm. around the above injury. Injury kept under observation. Advised X-ray of the skull. 2. Traumatic swelling 14 cm. X 8 cm. on the right side head including temporal region just above the right ear. Injury kept under observation. Advised X-ray of the skull. 3. Contusion 9 cm. X 2 cm. on the back of right shoulder. 4. Contusion 3 cm. X 2 cm. on the right side back including buttock oblique. 5. Multiple contusion in an area of 15 cm. X 11 cm. on the right buttock. Red. 6. All injuries on the back could not be recorded due to serious condition of the patient. 15. About injuries Nos. on the back of right shoulder. 4. Contusion 3 cm. X 2 cm. on the right side back including buttock oblique. 5. Multiple contusion in an area of 15 cm. X 11 cm. on the right buttock. Red. 6. All injuries on the back could not be recorded due to serious condition of the patient. 15. About injuries Nos. 1 and 2, he advised taking X-ray photographs while injuries Nos. 3, 4 and 5 were simple. All the injuries could be cause by lathis. Patient was in gasping stage. 16. PW5-Dr. S.J. Singh has further deposed that on the day at 1.15 p.m., he examined injuries of PW3-Babu Lal and prepared injury report marked as Ex. Ka.-4. He deposed that the general condition of the patient was low and he found the following injuries on the person of injured Babu Lal : 1. Lacerated wound 4 cm. x ½ cm. x scalp deep on left side head. 4 cm. above the left eye brow. Bleeding. 2. Lacerated wound 6-½ cm. x 1/2 cm. x scalp deep on right side head, 7 cm. above the right eye brow. Bleeding. 3. Lacerated wound 8 cm. x 1 cm. x scalp deep on the right side head 6 cm. above the right ear. Bleeding. 4. Contusion 8 cm. x 2 cm. on the back and middle part of the right forearm. Red. 5. Contusion 7 cm. x 2 cm. on the outer and middle of right upper arm. Red. 6. Multiple contusion in an area of 9 cm. x 7 cm. on the back of right shoulder joint. 7. Contusion 4 cm. x 2 cm. on the outer and middle of left upper arm. Red. 17. Dr. Singh has further deposed that all the injuries were fresh in duration and could be caused by lathis. He has deposed that since there was bleeding from some of the injuries, the same could be recently caused. He in his further cross-examination denied that he has deposed about recent injuries to help the prosecution. 18. PW2-Dr. K.K. Mall, who was posed in District Hospital,Gorakhpur conducted the post-mortem of the deceased Sukh Lal on 10.6.1980 at 4.30 p.m. and proved the same as Ex. Ka-2 and found the following injuries: 1. Contusion in an area of 6" x 2" on the left side of head, 4" above the left eyebrow. 2. 18. PW2-Dr. K.K. Mall, who was posed in District Hospital,Gorakhpur conducted the post-mortem of the deceased Sukh Lal on 10.6.1980 at 4.30 p.m. and proved the same as Ex. Ka-2 and found the following injuries: 1. Contusion in an area of 6" x 2" on the left side of head, 4" above the left eyebrow. 2. Multiple contusion in an area of 6" x 3" on the right hand side of scapular region. 3. Multiple contusion in an area of 9" x 3" on the right hand side of buttock. 19. On internal examination, the doctor found frontal bone fractured on both sides. Parietal bone was broken in many parts. There was half digested food in the stomach. Injury No. 1 in the opinion of the doctor was sufficient to cause death. The doctor has further opined that death occurred due to ante-mortem head injury. In his cross-examination he has deposed that the deceased could have become unconscious 18 hours before death. In his further cross-examination he has affirmed that the process of digestion could have continued even then the deceased had entered in coma stage. 20. PW7-Madan Kumar was a police constable and was posed at the concerned police station and he is scribe of formal report marked as Ex. Ka.-7 and deposed about the registration of the case in the General Diary. 21. PW9-Nanhu Ram, who was posted as Sub Inspector at the police station Kotwali at the relevant point of time. He submitted that memo about the death of the deceased was received at the police station Kotwali and it was endorsed in his name on 10.6.1980 ad which was marked as Ex. Ka.-11. This witness went to mortuary and prepared inquest report marked as Ex. Ka.-12. The witness further prepared diagram and challan of the dead body marked as Ex. Ka.-13 and Ka.-14. He also deposed and proved letter addressed to the doctor for holding post-mortem examination, which is marked as Ex. Ka.-15. 22. PW10-Kateshwar Tewari is the Investigating Officer of the case. He stated that he was posted as Sub Inspector at police station Sahjanwa in June, 1980. He further deposed that the original report alongwith medical report etc. were received at police station Sahjanwa on 9.6.1980 through Constable Kashi Nath and an entry in respect of this was made in the General Diary. He stated that he was posted as Sub Inspector at police station Sahjanwa in June, 1980. He further deposed that the original report alongwith medical report etc. were received at police station Sahjanwa on 9.6.1980 through Constable Kashi Nath and an entry in respect of this was made in the General Diary. On the basis of the General Diary, the case was registered by Constable Virendra Singh. A carbon copy of the General Diary is marked as Ex. Ka.-16. He further deposed that the investigation was entrusted to him and he started investigation on 10.6.1980. He prepared the site plan Ex. Ka.-17 and collected blood stained and ordinary earth in police custody and proved the Ex. Ka.-18. He tried to arrest the accused but could not arrest them. Ram Prit of the village gave him a Gamchha of the deceased which was marked as Ex. Ka.-19. When he learnt about the death of injured Sukh Lal, thereafter he converted the case under Section 302 I.P.C. He recorded the statements of witnesses and further took a report Ex.Ka.-5 in respect of the earlier litigation. On 12.6.1980, he received post-mortem report. He recorded statements of Smt. Sunari and injured Babu Lal under Section 161 Cr.P.C. at District Hospital, District Gorakhpur. He stated that investigation was later on taken from him by S.O. Ram Awadh Chaudhary under the orders of Circle Officer. The trial Court found that there was some short-comings in the investigation done by him, hence, it was transferred to S.O., namely, Ram Awadh Prasad Chaudhary under the orders of Circle Officer. 23. PW8-Ram Awadh Prasad Chaudhary who took over the investigation from PW10-Kateshwar Tewari on 14.6.1980 submitted charge-sheet against the accused persons which is marked as Ex. Ka.-10. 24. The appeal of appellant No. 1, namely, Rudal Singh has been abated by this Court vide order dated 9.2.2012. 25. Heard Sri Om Prakash Singh, learned counsel for the appellants, Sri Nitin Srivastava, learned AGA for the State and perused the record. 26. Ka.-10. 24. The appeal of appellant No. 1, namely, Rudal Singh has been abated by this Court vide order dated 9.2.2012. 25. Heard Sri Om Prakash Singh, learned counsel for the appellants, Sri Nitin Srivastava, learned AGA for the State and perused the record. 26. It has been argued by learned counsel for the appellants that out of eight accused persons, five accused persons, namely, Ranjit Singh, Dhruva Singh, Sri Narain Singh, Sharwan Singh and Narsingh have been acquitted by the trial Court and three accused persons, namely, Rudal Singh (deceased), Pirthviraj Singh and Prahlad Singh have been convicted by the trial Court for the offence in question by the impugned judgment and order. 27. It has been contended by learned counsel for the appellants that the appellants had no motive to commit the crime in question but the trial Court rejected the said contention of the accused on the ground that as per the evidence of PW6-Shitalu who is father of the deceased, there was some bad blood between the parties on account of the fishery right. 28. It was further argued that as per the prosecution evidence, accused demanded fishes from the deceased Sukh Lal which was refused by him appears to be false one as at the stage of investigation the witnesses have stated that they had no fishes at that time and they would give them later. The trial Court from the evidence on record found that the deceased had bluntly refused to give fishes. Though there appears to be some difference in which manner refusal was made by the deceased is immaterial. It was of the view that sometimes a polite refusal can be as offensive as a blunt one, particularly when there is enmity in existence. It thus, follows that the deceased refused to handover fishes collected by him. An attempt has been made to show on behalf of the accused that right of fishing in Aami Nadi is given by contract and so the deceased and Babulal could not have been fishing at the time of the occurrence. The mere fact that contract for fishing is given does not mean that no poaching is done. The trial Court had made a local inspection on the request of learned counsel for the accused and it found that 4-5 persons fishing in Aami Nadi under the bridge with fishing rods. The mere fact that contract for fishing is given does not mean that no poaching is done. The trial Court had made a local inspection on the request of learned counsel for the accused and it found that 4-5 persons fishing in Aami Nadi under the bridge with fishing rods. The trial Court was of the view that even if it was assumed that the deceased and Babu Lal were collecting fishes with their net in violation of the contract, the act of the accused could not be justified if they actually made demand for fishes collected by the deceased and Babu Lal and in ultimate assault, if the same was made. Thus, the trial Court had come to the finding that even if the deceased and his brother were not having even contract for fishing in Aami Nadi or Kiraiya Nala, which is not a great significance and act of the accused by launching assault was not justified. 29. It was next argued by learned counsel for the appellants that the presence of PW1-Smt. Sunari and PW4-Ram Lakhan at the place of occurrence appears to be doubtful as if they were present then no effort was made to save the injured and the deceased from the hands of the accused persons. Moreover, PW1 did not receive any injuries at the hands of the accused while her husband and Jeth were assaulted by the accused persons who received injuries and her Jeth died later on. 30. The said contention of the learned counsel for the appellants also does not find favour by the trial as it after analyzing the evidence of PW1-Smt. Sunari Devi found corroboration with the evidence of PW3 who is her husband and injured and received injuries in the incident. So far as PW4 is concerned, the trial Court was of the opinion that he was an independent witness of the occurrence and there was no occasion for him to falsely deposed against the accused. 31. So far as PW4 is concerned, the trial Court was of the opinion that he was an independent witness of the occurrence and there was no occasion for him to falsely deposed against the accused. 31. Learned counsel for the appellants tried to assail the evidence of injured Babu Lal (PW3) by showing some discrepancy and contradictions in his statement before the trial Court from the statement of alleged eye-witness PW1 and PW4, but he could not point out any infirmity in the evidence of PW3 which may discard the testimony of PW3 Babu Lal who received injuries on his person which shows his presence at the place occurrence. 32. Lastly, learned counsel for the appellant has submitted that as the two appellants, namely, Pirthviraj Singh and Prahlad Singh have been convicted and sentenced by the trial Court for the offence under Section 302 read Section 34 I.P.C. for life imprisonment appears to be against the evidence on record. He argued that if the evidence of the injured witness as well as of the eye-witnesses coupled with the post-mortem report of the deceased are taken into account, the deceased died on account of head injury on his person, i.e., injury No. 1 which is on the head and other injuries, i.e., injury Nos. 2 and 3 are on non-vital part of the body and No. 1 is proved to be fatal, the author of the said injury is not known and at the most the case would not travel beyond Section 325 read with Section 34 I.P.C., hence, convictioin of the appellant under Section 302 read with Section 34 I.P.C. be set aside. 33. So far as the injuries sustained by the injured, namely, Babu Lal is concerned, it was submitted that the case would not travel beyond Section 324/34 I.P.C. 34. In support of his contention, learned counsel for the appellants has placed reliance upon a judgment of this Court in the case of State of U.P. v. Kallu Lal and others, 1985 Law Suit (All) 475, which was also upheld by the Apex Court in which on the similar facts and circumstances of the case, accused were convicted for offence under Section 325/149 I.P.C. for 7 years R.I. hence, the conviction and sentence of the appellants passed in the aforesaid case under Section 302/34 I.P.C. for life imprisonment be set aside. 35. 35. Learned AGA on the other hand has vehemently refuted the arguments of learned counsel for the appellants and has submitted that the finding recorded by the trial Court regarding conviction of the appellants appears to be correct, but so far as the last contention of the learned counsel for the appellants is concerned, after taking into account the injuries sustained by the deceased and the injured, he could not dispute the proposition of law as has been held by this Court in the case of State of U.P. v. Kallu Lal and others (supra). 36. After having considered the rival contention of the learned counsel for the parties and scanning the evidence on record, the participation of the appellants in the incident cannot be ruled out particularly, the evidence of the injured Babu Lal (PW3) and coupled with the evidence of PW1-Smt. Sunari Devi and PW-4-Ram Lakhan, which is corroborated by the medical evidence of the injured and deceased, the finding of conviction recorded by the trial Court against the appellant appears to be justified and correct and requires no interference by this Court. 37. But so far the conviction and sentence of the appellants under Section 302/34 for life imprisonment and 307/34 I.P.C. for seven years R.I. is concerned, it appears to be against the evidence on record as the deceased received one fatal injury on his head, i.e., injury No. 1 and cause of death as per the post-mortem report is head injury, but the author of the said injury is not known. Hence, the contention raised by the learned counsel for the appellants regarding conviction and sentence of the appellants under Section 302/34 I.P.C. appears to have substance, particularly, in view of the case law relied upon by the learned counsel for the appellants in the case of State of U.P. v. Kallu Lal and others (supra). Therefore, conviction and sentence of the appellants under Section 302/34 I.P.C. for life imprisonment is hereby set aside and the appellants are convicted for the offence under Section 325 read with Section 34 I.P.C. for seven years rigorous imprisonment. 38. Therefore, conviction and sentence of the appellants under Section 302/34 I.P.C. for life imprisonment is hereby set aside and the appellants are convicted for the offence under Section 325 read with Section 34 I.P.C. for seven years rigorous imprisonment. 38. Similarly, so far as the conviction and sentence of the appellants under Section 307/34 I.P.C. for seven year rigorous imprisonment for assaulting injured Babu Lal (PW3) is concerned, considering the injuries of the injured it also appears to be against the evidence on record and the same is also hereby set aside and the appellants are hereby convicted and sentenced under Section 308 I.P.C. read with Section 34 I.P.C. for three years rigorous imprisonment. 39. The appellants, namely, Pirthviraj Singh and Prahlad Singh are on bail. Their bail bonds are cancelled and sureties are discharged. The appellants shall surrender within six weeks from today, failing within they shall be taken into custody forthwith to serve out the sentence as awarded by the trial Court. 40. With the foregoing discussions, the present appeal stands partly allowed. 41. Let a copy of this order be sent to the Session Judge, Gorakhpur for necessary information and its compliance.