JUDGMENT Kailash Prasad Deo, J. - Heard, learned counsel for the appellant, Mr. Om Prakash Singh, Advocate and learned counsel for the State, Mr. Ashok Kumar, Additional Public Prosecutor. 2. The instant criminal appeal is directed against the judgment of conviction dated 09.10.1996 and order of sentence dated 11.10.1996, passed by learned 1 st Additional Judicial Commissioner, Khunti, in Sessions Trial No.328 of 1987 / T.R. No. 172 of 1994, whereby the appellant, Anand Mahto and co-convict Surya Narayan Mahto have been convicted for the offence committed and punishable under Section 302 read with Section 34 of the Indian Penal Code and awarded rigorous imprisonment for life for the offence committed and punishable under Section 302/34 of the Indian Penal Code. During pendency of the appeal Surya Narayan Mahto has died and his case has been abated vide order dated 24.01.2019. 3. The prosecution case is based upon fardbeyan of Sripad Mahto (P.W.-4), recorded by S.I. Narendra Kumar, Officer-in-charge, Sonahatu police station on 15.10.1986 at 21:45 Hours in State dispensary, Sonahatu. The informant has stated, that his fardbeyan has been recorded in the night at 09:45 P.M. on 15.10.1986 in injured condition alongwith injured Balram Mahto, Bhadru Mahto, Deputy Mahto, Hira Mahto and Smt. Munni Devi who were brought for treatment on Bullock cart by his cousin Hari Nath Mahto, uncle Nageshwar Mahto and Paresh Nath Mahto at Government Hospital, Sonahatu. It is stated that all the injured persons were working in their paddy field situated at a distance of half kilometer, North of their house. It is stated that all the injured persons were working in their paddy field situated at a distance of half kilometer, North of their house. At around 07:00 A.M. in the morning from the South, accused persons namely (1) Yogendranath Mahto son of Shiv Prasad Mahto, having bow and lathi, (2) Surju Narayan Mahto co-convict, son-in-law of Shiv Mahto having tangi, (3) Naresh Chandra Mahto son-in-law of Sudan Mahto having lathi, (4) Sita Nath Mahto son of Devi Dayal Mahto, having tangi in his hand, (5) Jyotilal Mahto son of Devi Dayal Mahto, having bhala in his hand, (6) Mahendra Nath Mahto son of Baneshwar Mahto having dabi in his hand, (7) Anand Mohan (appellant), (8) Bolai Mahto, both sons of Baneshwar Mahto having lathi in their hands (9) Manikchandra Mahto, son of Ram Prasad Mahto having lathi in his hand (10) Devi Dayal Mahto son of Budhan Mahto, having dabi in his hand, (11) Dhirendranath Mahto son of Sukh Ram Mahto having tangi in his hand, (12) Braju Mahto son of Bhim Mahto (13) Vidyadhar Mahto son of Bhim Mahto, (14) Devendra Nath Mahto, (15) Jhari Mahto (16) Birsa Mahto, all three sons of Braju Mahto, (17) Krishna Mohan Mahto, (18) Anil Chandra Mahto, both sons of Hari Ram Mahto (19) Ravindra Nath Mahto son of Sukh Ram Mahto having tangi in his hand (20) Duryodhan Mahto son of Bhim Mahto (21) Karuna Mahto son of Pushu Mahto (22) Daman Mahto son of Bhikhari Mahto, all three having lathi in their hands, came near the paddy field of informant and claimed the land of informant as their own land, upon which altercation took place between the parties and thereafter all accused persons named above surrounded the informant side and on order of Surju Narayan Mahto, accused Vidyadhar Mahto has assaulted on the head of informant by means of tangi followed by Jhari Mahto, who has assaulted him on his head by means of tangi, Manikchandra Mahto has assaulted him by means of lathi and Birsa Mahto has assaulted him by means of tangi on his left hand. It is further alleged that Duryodhan Mahto was assaulted by Surya Narayan Mahto (co-convict) by means of tangi, Devi Dayal Mahto and Anand Mahto (appellant) have also assaulted on his head and body by means of lathi, due to which Duryodhan Mahto and the informant (P.W. 4) have sustained injuries and fell down. It is alleged that all the accused persons have assaulted Hira Mahto, Deputy Mahto, Bhadru Mahto, Balram Mahto and Munni Devi by means of tangi, lathi, dabi and bhala, causing serious injuries. The accused persons have assaulted them with intention to kill. On brawl raised by the informant, cousin of the informant namely, Harinath Mahto, Yogeshwar Mahto, Mukund Mahto and others came there. Thereafter all the accused persons have fled away towards the South. After fleeing away of accused persons, cousin of the informant, Duryodhan Mahto son of Labdhan Mahto succumbed to the injuries and died. Informant has alleged that there was land dispute with the accused persons Yogendra Nath Mahto and others, for which case is pending in the court. The informant has claimed that all the accused persons after forming unlawful assembly came there with lathi, bhala, tangi, dabi and assaulted the informant side with intention to kill after surrounding them, due to which Duryodhan Mahto has died at the spot and they have also sustained injuries. 4. On the basis of fardbeyan of the informant, police has registered Sonahatu P.S. Case No.53 of 1986, dated 16.10.1986, under Sections 148, 149, 302, 307, 324, 323 and 341 of the Indian Penal Code against twenty two named accused persons. 5. After completion of the investigation, the police has submitted charge sheet bearing no. 41 of 1986, dated 15.12.1986 against altogether twenty two named accused persons under Sections 148, 149, 302, 307, 324, 323 and 341 of the Indian Penal Code. 6. The cognizance of the offence has been taken vide order dated 13.03.1987 and the case has been committed to the court of sessions vide order dated 09.06.1987. 7. 41 of 1986, dated 15.12.1986 against altogether twenty two named accused persons under Sections 148, 149, 302, 307, 324, 323 and 341 of the Indian Penal Code. 6. The cognizance of the offence has been taken vide order dated 13.03.1987 and the case has been committed to the court of sessions vide order dated 09.06.1987. 7. The charge has been framed against all twenty two named accused persons under Sections 302/149 and 148 of the Indian Penal Code but the charge against accused persons namely Surya Narayan Mahto, Devi Dayal Mahto and Anand Mahto have also been framed separately under Section 302 of the Indian Penal Code vide order dated 18.03.1991, and the charge has been explained to accused persons in Hindi to which they have pleaded not guilty and claimed to be tried. 8. The prosecution, to prove its case, has examined altogether seven witnesses and also adduced a number of documentary evidence. Deputy Mahto, has been examined as P.W.-1, Bhadru Mahto, has been examined as P.W.-2, Balram Mahto, has been examined as P.W.-3, Sripad Mahto, informant has been examined as P.W.-4, Paresh Nath Mahto, has been examined as P.W.-5, Nand Lal Mahto, has been examined as P.W.-6 and Dr. Tulsi Mahto, has been examined as P.W.-7. 9. The prosecution has also brought on record a number of documents. Fardbeyan has been proved and marked as exhibit-1, formal First Information Report has been proved and marked as exhibit-2, postmortem report of deceased (Duryodhan Mahto) has been proved and marked as exhibit-3 and certified copy of order dated 14.11.1994 in Misc. Case No. 19/94-95 has been proved and marked as exhibit-4. 10. After closure of the prosecution evidence, statement of the accused persons have been recorded under section 313 Cr.P.C., on 10.06.1996, to which the accused Anand Mahto has pleaded his innocence and has denied his involvement in the occurrence. Case No. 19/94-95 has been proved and marked as exhibit-4. 10. After closure of the prosecution evidence, statement of the accused persons have been recorded under section 313 Cr.P.C., on 10.06.1996, to which the accused Anand Mahto has pleaded his innocence and has denied his involvement in the occurrence. The defence has not examined any defence witness but has adduced a number of documents up to exhibit-H. certified copy of judgment dated 31.10.1979 passed in Miscellaneous case No. 28 of 1977 has been proved and marked as exhibit-A, certified copy of judgment passed in Criminal Revision No. 80 of 1980 has been proved and marked as exhibit-B, certified copy of judgment passed in Miscellaneous Case No.417 of 1983 has been proved and marked as exhibit-C, certified copy of final decree passed in Partition Suit No.13 of 1928 has been proved and marked as exhibit-D, certified copy of Khanapuri Tanaza No- 4 has been proved and marked as exhibit-E, registered patta dated 27.09.1946 has been proved and marked as exhibit-F, certified copy of proceeding under Section 144 Cr.P.C. has been proved and marked as exhibit-G, Revision Application No. 102 of 1992 has been proved and marked as exhibit-H. During pendency of the trial, the accused Devi Dayal Mahto has died and case against him has been dropped vide order dated 21.05.1996. 11. After hearing the learned counsel for the parties and from the materials available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant Anand Mahto and one Surya Narayan Mahto for the offence committed and punishable under Section 302/34 of the Indian Penal Code and rest of the nineteen accused persons have been acquitted by the learned trial court. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, both the convicts have preferred the present criminal appeal before this Hon''ble Court on 15.10.1996, the same was admitted on 16.10.1996 and both the convicts Surya Narayan Mahto and Anand Mahto have been released on bail after suspending their sentence. During pendency of the appeal appellant Surya Narayan Mahto has died on 02.06.2011 and criminal appeal preferred by him stands abated by this Court vide order dated 24.01.2019, as such the present appeal remains pending only with regard to sole convict Anand Mahto. 12. Heard, learned counsel for the appellant Mr. Om Prakash Singh, Advocate. During pendency of the appeal appellant Surya Narayan Mahto has died on 02.06.2011 and criminal appeal preferred by him stands abated by this Court vide order dated 24.01.2019, as such the present appeal remains pending only with regard to sole convict Anand Mahto. 12. Heard, learned counsel for the appellant Mr. Om Prakash Singh, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has submitted, that admittedly there is a land dispute between the parties, the appellant and his associates (who have been acquitted) were in possession over the land and while they were cultivating the land the informant side came there. Learned counsel for the appellant has submitted, that the appellant along with twenty one persons have been made named accused in this case with allegation that they have assaulted a number of persons due to which Duryodhan Mahto has died at the spot. Learned counsel for the appellant has further submitted, that appellants have not been charged under Section 307 of the Indian Penal Code and only the appellants Anand Mahto and one Surya Narayan Mahto have been convicted by the learned trial court under Section 302/34 of the Indian Penal Code. Learned counsel for the appellant has further submitted, that as per the prosecution case there is admitted land dispute between the parties for which the case is pending before the competent court of law. Learned counsel for the appellant has further submitted, that the defence exhibits which have been brought on record, from exhibits-A to H will show the rightful ownership of the appellant over the land and as such a free fight took place between the parties in which Duryodhan Mahto has died. The prosecution case is also doubtful as the injury report of the other injured witnesses have not been brought on record to substantiate the authenticity of the First Information Report. Learned counsel for the appellant has further submitted, that appellants has been convicted with the aid of section 34 of the Indian Penal Code although, it is alleged that appellant was having lathi in his hand and a number of persons who were having lathi in their hand have been acquitted by the learned trial court. Learned counsel for the appellant has further submitted, that appellants has been convicted with the aid of section 34 of the Indian Penal Code although, it is alleged that appellant was having lathi in his hand and a number of persons who were having lathi in their hand have been acquitted by the learned trial court. Against the judgment of acquittal so far those other persons are concerned, the State or the informant has not preferred any acquittal appeal. Learned counsel for the appellant has further submitted, that the intention of the appellant can be gathered from the weapon, which has been alleged against him. Learned counsel for the appellant has further submitted, that it is alleged that appellant was having lathi and he has assaulted Duryodhan Mahto, who has sustained injuries because of assault made by Surya Narayan Mahto by means of tangi, Devi Dayal Mahto and Anand Mahto by means of lathi on his head and body, as because Devi Dayal Mahto has died during pendency of the trial and Surya Narayan Mahto has died during pendency of the appeal, as such the present appellant may also be given benefit of doubt as the appellant has faced the rigors of trial since 1986. Learned counsel for the appellant has further submitted, that presently appellant Anand Mahto is aged about more than 62 years, as such this Court may consider his case with leniency as co-accused Surya Narayan Mahto has died during pendency of the appeal, as such the entire allegation cannot be attributed against this sole appellant. 13. Heard, learned counsel for the State, Mr. Ashok Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials brought on record. Learned counsel for the State has submitted that informant Sripad Mahto (P.W. 4) is an injured eye witness to the occurrence. Ashok Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials brought on record. Learned counsel for the State has submitted that informant Sripad Mahto (P.W. 4) is an injured eye witness to the occurrence. The informant has categorically stated that while they were cultivating their plot, the accused persons twenty two in number lashed with deadly weapon came there, claimed the land, surrounded the prosecution party and with common intention to kill, they have started assaulting causing injury upon Balram Mahto (P.W. 3), Bhadru Mahto (P.W. 2), Deputy Mahto (P.W. 1), Hira Mahto (not examined), Smt. Munni Devi (not examined), who were brought for treatment before the State Dispensary, Sonahatu where fardbeyan of the informant was recorded. Learned counsel for the State has submitted that the charge has been framed against accused persons namely Anand Mahto, Surya Narayan Mahto and Devi Dayal Mahto under Section 302 of the Indian Penal Code and all accused persons have been charged under Sections 302/149 and 148 of the Indian Penal Code. Learned counsel for the State has submitted that Deputy Mahto, injured eyewitness to the occurrence has been examined as P.W. 1. He has supported the prosecution case and has categorically stated in paragraph- 4 of his examination-inchief that accused Surya Narayan Mahto, Anand Mahto have ordered to kill Duryodhan Mahto as he is the person who is financing the litigation cost. Subsequently, Surya Narayan Mahto assauted Duryodhan Mahto by means of tangi on his head, Anand Mahto assaulted by means of lathi on his person due to which Duryodhan fell down and thereafter, Surya Narayan Mahto by means of tangi assaulted Duryodhan Mahto on his head. Anand Mahto and Devi Dayal Mahto have assaulted Duryodhan Mahto by means of lathi. Learned counsel for the State has submitted that from perusal of the post-mortem report which has been brought on record as Exhibit- 3, it appears that deceased Duryodhan Mahto has sustained as many as four injuries: "(1) Incised wound- 3 cm x 2 cm x bone deep, 2 cm x 1 cm x bone deep & 3 cm x 11/2 cm x scalp deep over the vault of the head cutting the scalp and outer table of skull bone underneath with haematoma around the wound. (2) Lacerated wound 6 cm x 2 cm x bone deep over the right parietal region of the head fracturing the right parietal bone into pieces lacerating the brain matter, portion of brain matter is coming out of the wound. Diffuse haematoma around and inside the cranial cavity. (3) Lacerated wound 6 cm x 5 cm x bone deep over the left temporo parietal aspect of the head with crack fracture of left temporo parietal bone. (4) Abrasions:- (i) 3 cm x 2 cm over the back of right shoulder blade; (ii) 2 cm x 1 cm over the back of left elbow; (iii) 3 cm x 2 cm over the front part of left elbow; (iv) 16 cm x 3 cm over the back overlying the left scapula; (v) 10 cm x 3 cm over the outer aspect of upper part of right thigh; (vi) 5 cm x 3 cm over the back of left thigh in the middle part; (vii) abrasion around the anus abrasing the rectum." The Doctor has opined that all the injuries are ante mortem caused by incised wounds by sharp cutting weapon and rest by hard and blunt substance. Death is due to multiple injuries noted above. Injury no. 2 above is sufficient in ordinary course of nature to cause death. Time since death is 2-3 days (two to three days) from time of post mortem examination. The post mortem report has been brought on record which has been proved and marked as Exhibit- 3. Learned counsel for the State has further submitted that evidence of Bhadru Mahto (P.W. 2), an injured eye-witness also suggests that the appellant along with others have assaulted due to which Duryodhan Mahto died. Learned counsel for the State has submitted that this witness has also supported the case of the prosecution. Balram Mahto has been examined as P.W. 3, this witness is also an injured eye-witness and has supported the case of the prosecution. Sripad Mahto (P.W.4), a co-villager was working in his field when he saw the accused persons and specifically alleged about Anand Mahto at serial no. 12 that Anand Mahto was having lathi in his hand. Balram Mahto has been examined as P.W. 3, this witness is also an injured eye-witness and has supported the case of the prosecution. Sripad Mahto (P.W.4), a co-villager was working in his field when he saw the accused persons and specifically alleged about Anand Mahto at serial no. 12 that Anand Mahto was having lathi in his hand. This witness has stated that after an altercation between the parties on the order of Surya Narayan Mahto to assault, Vidyadhar assaulted on his head by means of tangi, Birsa assaulted him by means of tangi on left hand and Jhari Mahto assaulted on his back by means of tangi, (the witness has shown his injury caused on his back) and due to which he fell down after sustaining injury. This witness has further stated that Duryodhan Mahto was assaulted by Surya Narayan Mahto by means of tangi, Devi Dayal Mahto by means of lathi and Anand Mahto by means of lathi, who has inserted lathi in his rectum and as such, Duryodhan Mahto died at the spot. This witness has proved the entire fardbeyan which has been marked as Exhibit- 1. Learned counsel for the State has further submitted that though the informant and the other eye-witnesses have been crossexamined by the defence at length but nothing has been elucidated to disbelieve the prosecution case. Learned counsel for the State has further submitted that Parasnath Mahto has been examined in this case as P.W. 5. This witness has proved the formal F.I.R. in the handwriting of Birendra Kumar which has been marked as Exhibit- 2. This witness has stated that initially they were taken to hospital. This witness has further stated that they were taken to hospital through the way of police station. Nandlal Mahto has been examined as P.W. 6. This witness has stated that informant and accused persons are known to him as they are the co-villagers. This witness has stated that nine years ago, he has seen the dead body of Duryodhan Mahto on the land. Deputy Mahto, Sripad Mahto, Bhadru Mahto, Hira Mahto and Munni Devi were also having injuries. This witness has been cross-examined but nothing has been elucidated to disbelieve the prosecution case. Dr. Tulsi Mahto, Assistant Professor, Forensic Medicine, RMCH, Ranchi has been examined as P.W. 7. Deputy Mahto, Sripad Mahto, Bhadru Mahto, Hira Mahto and Munni Devi were also having injuries. This witness has been cross-examined but nothing has been elucidated to disbelieve the prosecution case. Dr. Tulsi Mahto, Assistant Professor, Forensic Medicine, RMCH, Ranchi has been examined as P.W. 7. This witness has categorically stated that on 17.10.1986 at 10.00 Hours while he was posted at RMCH, Ranchi, he conducted the post-mortem examination on the dead body of Duryodhan Mahto son of Labhdhan Mahto of village Tilaipiri P.S. Sonahatu, District- Ranchi and found the injuries as described above and proved the post mortem report in his hand writing and signature which has been marked as Exhibit-3. The doctor has opined that these injuries may be caused because of sharp cutting weapon and hard and blunt substance. Learned counsel for the State has submitted that the injured witnesses P.W. 1, P.W. 2, P.W. 3 and P.W. 4 have fully supported the case of the prosecution as made out in the fardbeyan and corresponding injuries have been found as mentioned in the post mortem report which has been proved and marked as Exhibit- 3. Learned counsel for the State has thus submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials available on record which does not warrant any interference by this Hon''ble Court. 14. Heard, learned counsel for the appellant, Mr. Om Prakash Singh, Advocate and learned counsel for the State, Mr. Ashok Kumar, Additional Public Prosecutor. This Court has scrutinised the materials brought on record. It appears that because of land dispute between the parties, the litigation was going on in the court. The accused side surrounded the informant side and assaulted them by means of lethal weapons on the order of Sarju Narayan Mahto, who has also assaulted on the head of Duryodhan Mahto by means of tangi, Devi Dayal and the present appellant Anand Mahto have assaulted Duryodhan Mahto by means of lathi. P.W. 4 Sripad Mahto being the informant, his fardbeyan was recorded and as per his fardbeyan six persons have sustained injuries namely Balram Mahto, Bhadru Mahto, Deputy Mahto, Hira Mahto, Smt. Munni Devi and the informant. P.W. 4 Sripad Mahto being the informant, his fardbeyan was recorded and as per his fardbeyan six persons have sustained injuries namely Balram Mahto, Bhadru Mahto, Deputy Mahto, Hira Mahto, Smt. Munni Devi and the informant. Out of six injured witnesses Deputy Mahto has been examined as P.W. 1, Bhadru Mahto as P.W. 2, Balram Mahto as P.W. 3 and informant Sripad Mahto as P.W. 4. The informant Sripad Mahto (P.W. 4) has categorically stated in paragraph- 3 of his crossexamination that Surya Narayan Mahto assaulted Duryodhan Mahto by means of tangi, Devi Dayal by means of lathi and Anand Mahto assaulted Duryodhan Mahto by inserting lathi in his rectum and due to which Duryodhan Mahto died. The post- mortem report shows that there are corresponding injuries in the rectum on the person of the deceased. The deceased has sustained three types of injuries one is incised which is three in number, second is lacerated one which is two in number and third is abrasion which is seven in number, abrasion injury no. (vii) is around the anus abrasing the rectum. The corresponding injuries have been found. The other prosecution witnesses have also supported the case of the prosecution. Nothing has been brought on record which entitled the accused to act in right of their private defence, as envisaged under section 94 IPC; there is no case and counter case between the parties and as per the prosecution evidence, the accused persons came to the place of occurrence and having common intention assaulted the informant side, causing death of one of the injured Duryodhan Mahto. The Court below has rightly convicted the Surya Narayan Mahto and Anand Mahto under Section 302/34 of the Indian Penal Code as Devi Dayal Mahto has died during pendency of the trial and Surya Narayan Mahto died during pendency of the criminal appeal. There is nothing on record to suggest that these accused persons have any right to assault Duryodhan Mahto and other injured eye-witnesses. The injury found on the Duryodhan Mahto is attributed to this appellant Anand Mahto specifically abrasion no. (vii). Though the charge has been framed against all the accused persons under Section 302/149 but at the same time specific charge has been framed against Surya Narayan Mahto, Devi Dayal Mahto and the appellant Anand Mahto under Section 302 of the Indian Penal Code. (vii). Though the charge has been framed against all the accused persons under Section 302/149 but at the same time specific charge has been framed against Surya Narayan Mahto, Devi Dayal Mahto and the appellant Anand Mahto under Section 302 of the Indian Penal Code. As such, the conviction passed by the learned trial court under Section 302/34 of the Indian Penal Code is not bad in law even though the other charge has been framed under Section 302/149 of the Indian Penal Code under which the accused persons were acquitted. The opinion of the Apex Court on this point in case of Dahari and Ors. vs. State of Uttar Pradesh as, (2012) 10 SCC 256 at para- 21 is quoted here under: "21. In Nethala Pothuraju v. State of A.P. this Court while considering a similar case, held that the non-applicability of Section 149 IPC is no bar for the purpose of convicting the accused under Section 302 read with Section 34 IPC, if the evidence discloses the commission of an offence, in furtherance of the common intention of such accused. This is because both Sections 149 and 34 IPC deal with a group of persons who become liable to be punished as sharers in the commission of an offence. Thus, in a case where the prosecution fails to prove that the number of members of an unlawful assembly are 5 or more, the court can simply convict the guilty persons with the aid of Section 34 IPC, provided that there is adequate evidence on record to show that such accused shared a common intention to commit the crime in question." That there are adequate material evidence on record to show that this appellant together with Surya Narayan Mahto and Devi Dayal Mahto, all having a common intention to commit the offence. In that view of the matter on re-appreciation of the evidence there is nothing on record to upset the judgment passed by the learned trial court. 15. In the result, the impugned judgment of conviction, dated 09.10.1996 and order of sentence, dated 11.10.1996, passed by learned 1st Additional Judicial Commissioner, Khunti, in Sessions Trial No.328 of 1987 / T.R. No. 172 of 1994 arising out of Sonahatu P.S. Case No.53 of 1986, corresponding to G.R. No. 383 of 1986, is hereby upheld. 16. Accordingly, the present criminal appeal preferred by Anand Mahto is dismissed. 17. 16. Accordingly, the present criminal appeal preferred by Anand Mahto is dismissed. 17. The appellant, who is on bail, his bail bond is cancelled and he is directed to appear before the court below to serve out rest of the sentence as awarded by the learned trial court. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.