JUDGMENT : Shree Chandrashekhar, J. Twenty persons were named in the First Information Report lodged by Lilo Pandit on 1st October 1988. Jagdish Mahto was not sent up for trial and three accused against whom a charge sheet was filed died in the meantime – they were Kartik Mahto, Titu Mahto and Sanichar Mahto. Jageshwar Mahto, Nandkishore Mahto, Surja Mahto, Ramchandra Mahto, Lattu Mahto, Nunlal Mahto and Hublal Mahto faced the trial on the charge under sections 148, 341, 379, 427, 307/149 and 302/149 of the Indian Penal Code and the other nine accused have faced the trial on the charge under sections 147, 341, 379, 427, 307/149 and 302/149 of the Indian Penal Code. 2. Mahendra Mahto who is the appellant No.2 in Cr. Appeal (DB) No. 974 of 2010 and Jageshwar Mahto who is the appellant No. 4 in Cr. Appeal (DB) No. 969 of 2010 passed away during pendency of these criminal appeals, but, in spite of opportunities granted to the legal heirs/successors of these appellants they did not prefer any substitution petition and, accordingly, Cr. Appeal (DB) No. 974 of 2010 qua Mahendra Mahto and Cr. Appeal (DB) No. 969 of 2010 qua Jageshwar Mahto were dismissed as not pressed vide order dated 21st September 2021. 3. Except Mathura Kolh and Raju Kolh, other appellants are close relatives. The informant Lilo Pandit is the neighbour of Ramchandra Mahto. 4. Lilo Pandit gave his statement at 03:15 PM on 1st October 1988 at village Dhardharwa before A.K. Singh who was posted as Sub Inspector of police at Ahilyapur police station that around 10:00 AM in the morning Ramchandra Mahto and Titu Mahto threatened to plough the disputed land and when he raised objection they became angry and went back home. The other people of their caste gathered in the village and Ramchandra Mahto and Laxmi Mahto forcibly ploughed the land and sowed Kurthi. His brothers Horil Pandit and Guru Pandit also raised objection and when they threatened to report the matter to police the accused became very angry and tried to stop them. Ramchandra Mahto raised hulla and soon thereafter twenty persons armed with lathi and tangi started destroying roof tiles of his house. They took away the household utensils. Afraid, other members of his family raising hulla ran away and he along with his brothers and nephew started for the police station. Ramchandra Mahto raised hulla and soon thereafter twenty persons armed with lathi and tangi started destroying roof tiles of his house. They took away the household utensils. Afraid, other members of his family raising hulla ran away and he along with his brothers and nephew started for the police station. The accused chased them but near village Dhardharwa they were caught by the accused. Ramchandra Mahto, Jageshwar Mahto, Surja Mahto, Mathura Kolh, Mahabir Mahto, Nandkishore Mahto, Laxmi Mahto, Raju Kolh, Mahendra Mahto and Jagdish Mahto encircled them in the field of Banshi Mahto. They started abusing them and Ramchandra Mahto exhorted others to kill them (aaj jaan se maar do). The informant claimed that the accused brutally assaulted him and when Horil Pandit raised hulla (bachao-bachao) and intervened, the accused persons turned to him and started assaulting him with lathi and tangi. 5. Ahilyapur PS Case No. 37 of 1988 was lodged on 1st October 1988 on the basis of the aforesaid fardbeyan of Lilo Pandit. 6. A counter case vide Ahilyapur PS Case No. 38 of 1988 was lodged by Mahabir Mahto against six of the prosecution witnesses. In GR No. 1583 of 1988 (corresponding to Ahilyapur PS Case No. 38 of 1988), judgment was delivered on 28th September 1992 acquitting the accused for want of evidence. 7. A chargesheet was laid against nineteen persons who faced the trial for committing murder of Horil Pandit, attempt to commit murder of Lilo Pandit and destruction of property. Fourteen witnesses were examined by the prosecution to prove the charges against the accused persons, out of which, PW9 Guru Pandit, PW10 Lilo Pandit and PW11 Basudeo Pandit are found eyewitnesses by the learned trial Judge. PW1 Nirmala Devi, PW2 Patia Devi and PW3 Tulia Devi are female folks of the family of Lilo Pandit. 8. Seven accused persons including Lattu Mahto and Nunlal Mahto are acquitted of the charges framed against them. 9. Mahabir Mahto, Laxmi Mahto, Mahendra Mahto, Mathura Kolh and Raju Kolh are found guilty of committing the offence under sections 147, 341, 307/149 and 302/149 of the Indian Penal Code. 10. Jageshwar Mahto, Nandkishore Mahto, Surja Mahto and Ramchandra Mahto are held guilty for committing the offence under sections 148, 341, 307/149 and 302/149 of the Indian Penal Code. 11. Mahabir Mahto, Laxmi Mahto, Mahendra Mahto, Mathura Kolh and Raju Kolh are found guilty of committing the offence under sections 147, 341, 307/149 and 302/149 of the Indian Penal Code. 10. Jageshwar Mahto, Nandkishore Mahto, Surja Mahto and Ramchandra Mahto are held guilty for committing the offence under sections 148, 341, 307/149 and 302/149 of the Indian Penal Code. 11. The learned trial Judge held that PW1, PW2, PW5, PW6 and PW7 have made general statements and they are not eyewitnesses. Even so, we find that they are truthful witnesses. PW1 admits in paragraph No.8 of her cross-examination that she did not see marpit between the parties. She has stated that the land dispute was continuing since last five years. PW2, PW5, PW6 and PW7 are examined to establish that the accused assembled at the house of the informant, destroyed the roof tiles and committed theft of utensils from the house. 12. The evidences laid by the prosecution to establish the charge under section 379 and 427 of the Indian Penal Code are dealt with by the learned trial Judge in paragraph No. 13 of the judgment in ST No. 445 of 1989, in the following manner: “13. The above named 16 accused persons are charged u/s 379 and 427 I.P.C. On this point the informant has stated in Ext.3, the fard-beyan, that all the accused persons armed with tangi and lathi came to his house and damaged earthen tiles of his house and took away utensils from his house. P.W.1 Nirmala Devi has named all the accused persons for damaging the tiles and taking away utensils. In cross-examination she says that that at the time of damage of tiles, she was at the door of her house and male persons of her family were in the Bari. She also says that when accused came, the women family members went out of the house. She further says that she can not say who entered in the house and who remained outside. From perusal of her statement, it is clear that she has not described the stolen utensils and has also not said which of the accused committed theft and which of the accused damaged the tiles. Her statement is quite general in nature. P.W.2 says that accused persons came to her house armed with tangi and lathi and damaged the tiles and they also thrown away Madua and other grains. Her statement is quite general in nature. P.W.2 says that accused persons came to her house armed with tangi and lathi and damaged the tiles and they also thrown away Madua and other grains. She has also said that two thalis, lota and one Douna were taken away by accused Jagu and Jageshwar. In cross-examination, she says that the earthen tiles of eastern door were only damaged and no accused climbed on the roof. She also says that Jagu Kolh is father of accused Raju Kolh and Jageshwar Kolh is his relative. Jagu Kolh and Jageshwar Kolh are named in the fard-beyan. P.W.2 has for the first time described the utensils taken by Jagu Kolh and Jageshwar Kolh. However, she has not named any specific accused for damaging the tiles. P.W.5 has named all the accused for damaging the tiles and has also said that Jagu Kolh took away Thali and Jageshwar Kolh took away Lota. P.W.6 hassaid that the accused persons damaged the tiles and took away Thali and Lota. He has not named any specific accused for damaging the tiles and taking away utensils. P.W.7 says that accused persons damaged the tiles in the backside of the house and Jageshwar and Jagu took away Lota and Thali. P.W.9 has made general statement regarding damage of tiles and theft of Lota and Thali. Similar is the statement of P.Ws. 10 and 11. P.W.13, the I.O., has not found any mark of damage of tiles in the eastern side of the house of informant and on its door. He has found a very little tiles damaged in the western side of the house. The I.O. Has further stated that P.W.2 and P.W.6 have not deposed before him that Jagu and Jageshwar took away Thali and Lota and they have also not said before him that accused entered in the house and damaged the tiles. P.W.13 further says that P.W.7 Sewa Pandit is also not eye witness before him on the point of damage of tiles and theft of Thali and Lota. From perusal of statement of P.W.13, it is clear that the so-called eye witnesses who have not eye witness before I.O. and they have made false statement in court.” 13. P.W.13 further says that P.W.7 Sewa Pandit is also not eye witness before him on the point of damage of tiles and theft of Thali and Lota. From perusal of statement of P.W.13, it is clear that the so-called eye witnesses who have not eye witness before I.O. and they have made false statement in court.” 13. The learned trial Judge held that the charge under sections 379 and 427 of the Indian Penal Code was not established and this part of the story was incorporated by the prosecution with an ulterior motive. 14. Mr. Mahesh Tewari, the learned counsel for the appellants submits that: (i) no independent witness was examined in the Court; (ii) all prosecution witnesses are closely related to the informant and they are partisan; (iii) the prosecution suppressed the real version of the occurrence and; (iv) the prosecution witnesses made significant improvements in the Court as is evident from the findings recorded by the learned trial Judge who found that the charge under sections 379 and 427 of the Indian Penal Code was not proved. 15. PW9, PW10 and PW11 are intimately related to Horil Pandit. There was a land dispute between the parties – in particular, between Lilo Pandit and Ramchandra Mahto. In the background of dispute between the parties and keeping in mind findings of the learned trial Judge that the story of destruction of property and theft of utensils was incorporated with ulterior motive, we would now see what PW9, PW10 and PW11, who are believed by the learned trial Judge, have deposed in the Court. 16. PW9 deposed in the Court that he was accompanied by Horil Pandit, Lilo Pandit and Budhan Mandal and when they reached the field of Banshi Mahto at Dhardharwa Badhar, ten persons – Jageshwar Mahto, Jagdish Mahto, Nandkishore Mahto, Surja Mahto, Ramchandra Mahto, Laxmi Mahto, Mathura Kolh, Raju Kolh, Mahabir Mahto and Mahendra Mahto – all armed with lathi and tangi apprehended them and started assaulting Lilo Pandit. He remained firm in the cross-examination and stated that his brothers were assaulted by the accused persons when they were going to the police station to report the matter. The defence tried to impeach his evidence on the ground that he made significant improvements in the Court. He remained firm in the cross-examination and stated that his brothers were assaulted by the accused persons when they were going to the police station to report the matter. The defence tried to impeach his evidence on the ground that he made significant improvements in the Court. The Investigating Officer was put to questions in paragraph No. 27 of his cross-examination as regards statements made by PW9 in course of the investigation, which reads as under: ^^27- xokg xq: iafMr us esjs lkeus dgk fd jkepanj egrks oks rhrw egrks ls tehu dk iqjkuk >xM+k pyk vkrk gSA mlus ,slk dgk fd 01@10@88 dks nl cts fnu esa jkepanj oks rhrw us tehu tksrus dh /kedh fn;k Fkk vkSj X;kjg cts fnu esa jkepanj xksgkj djus yxk oks gy cSy [kksydj ?kj ys x;k oks FkksM+h nsj ds ckn vk;kA mlus egkohj dk uke esjs lkeus ?kj esa ?kqlus okyksa esa ugha fy;kA vkSj ?kj esa ?kqldj ,d yksVk oks ,d Fkkjh mBk dj ys tkus dh ckr ugha dgkA mlus ,slk dgk fd ?kj ds lHkh vkneh Mj ls gYyk djrs Hkkx x;sA mlus ,slk dgk fd og gksfjy] oklqnso oks yhyks nkSM+ dj Fkkuk pysA mlus ,slk ugha dgk fd og /khjs&/khjs Fkkuk dh vksj tkus yxkA mlus ,slk dgk fd eqnkygqe tc mUgsa [knsM+us yxs rks os yksx Hkkxus yxsA mlus ,slk dgk fd os yksx Hkkxrs&Hkkxrs ca'kh egrks ds [ksr ij igq¡psA mlus ,slk dgk fd X;kjg vkneh ¼uke ysdj½ ihNs ls [knsM+rs gq, mUgsa ca'kh egrks ds [ksr esa ?ksj fy;kA bl X;kjg vknfe;ksa esa mlus txnh'k dk uke ugha fy;kA mlus ,slk dgk fd tc os yksx ekjus yxs rks og] oks oklqnso iafMr Mj ls Hkkx x;sA mlus ,slk dgk fd ckM+h esa mlus dgk fd tksruk can djks] ugha rks os Fkkuk tk,axsA^^ 17. English translation of the aforesaid statements are as under: “27. The witness Guru Pundit stated before me that he had old land dispute with Ranchandra Mahto and Titu Mahto. He said that on 01.10.88 at 10 A.M. Ramchandra Mahto and Titu Mahto threatened to plough the field and at 11:00 A.M. Ramchandra Mahto raised hulla (Gohar) and took away ox and plough to his house and returned after some time. He did not mention the name of Mahabir among the persons who entered the house and took away one Lota and one Thali. He did not mention the name of Mahabir among the persons who entered the house and took away one Lota and one Thali. He said that out of fear all the members of his house fled away raising alarm. He said that Horil, Basudeo, Lilo and he ran to the police station. He did not state before me that they began to move slowly towards the police station. He said that they started running when they were chased by the accused persons. He said that they ran to the field of Banshi Mahto. He said that eleven persons (by mentioning their names) chased and surrounded them in the field of Banshi Mahto. He did not take the name of Jagdish among the eleven persons. He said that when they began to assault them then Basudeo Pandit and he ran away out of fear. He said that at the Bari he asked the accused to stop ploughing otherwise they would go to the police station.” 18. PW10, the informant has supported his fardbeyan in the Court. He affirmed that PW9 and PW11 were accompanying him when he was going to the police station to lodge a complaint. He has stated in the cross-examination that the field of Banshi Mahto was at a distance of about two kilometers from his house. He stated that Horil Pandit was assaulted by all ten accused and each of them inflicted more than one blow to Horil Pandit. He has also stated that after receiving six tangi blows he became unconscious. He has stated in the cross-examination that the field of Banshi Mahto was at a distance of about two kilometers from his house. He stated that Horil Pandit was assaulted by all ten accused and each of them inflicted more than one blow to Horil Pandit. He has also stated that after receiving six tangi blows he became unconscious. The defence sought to establish contradictions in his testimony by drawing attention of the Investigating Officer in paragraph No. 29 of his cross-examination, which reads as under: ^^29- xokg yhyks iafMr us ,slh ckr ugha gS fd geus yhyks dks QnZC;ku iढ+ dj ugha lquk;s oks QnZC;ku fcuk iढ+dj lquk;s] ml ij mlls lgh djok fy;kA mldk ;g dguk xyr gS fd mldk QnZC;ku Fkkuk ij fy[kkA mlus ,slk ugha dgk fd cq/ku pkSdhnkj ckM+h ls euk djus dks x;k FkkA mlus ,slk ugha dgk fd eqnkygqe mlds ?kj esa ?kql dj yksVk oks Fkkyh ys x;sA mlus ,slk dgk fd eqnkygqe tc mldk ?kj dks ?ksj fy;k rks mlds ?kj ds lHkh vkneh Mj ls Hkkx x;sA mlus ,slk ugha dgk fd tc og xq:] oklqnso oks gksfjy Fkkuk ds fy, pys rc eqnkygqe mUgsa jksdus yxsA mlus ,slk ugha dgk fd tc gksfjy dks ekj yxh rks og] oklqnso oks xq: ogha ij FksA ^^ 19. English translation of the aforesaid testimony reads thus: “29. The witness Lilo Pandit has not claimed that I did not read over the fardbeyan to him and took his signature on it. It is falsely stated by him that his fardbeyan was recorded in the police station. He did not state before me that Budhan Chowkidar had gone to forbade them in the Bari. He did not state that the accused persons entered his house and took away Lota and Thali. He said that when the accused persons surrounded his house then all the members of his house ran away out of fear. He did not state that when Guru, Basudeo, Horil and he left for the police station then the accused persons objected to them. He did not state that when Horil was assaulted then Basudeo, Guru and he were present there.” 20. From the materials on record, we gather that there are exaggerations in the evidence of prosecution witnesses but such exaggerations do not change the core of the prosecution case. He did not state that when Horil was assaulted then Basudeo, Guru and he were present there.” 20. From the materials on record, we gather that there are exaggerations in the evidence of prosecution witnesses but such exaggerations do not change the core of the prosecution case. The statement of a witness in the Court which is made on oath may sometimes be mixed with exaggerations, but then, exaggerations per se do not brittle the testimony of a witness. The learned trial Judge has excluded a part of the testimony of the witnesses which was exaggeration of the prosecution version. Even excluding a part of the evidence tendered by the prosecution witnesses, what remains on record is sufficient to establish participation of the appellants in the occurrence. 21. In “Hari Chand v. State of Delhi” (1996) 9 SCC 112 the Hon'ble Supreme Court has observed as under: “24. … So far as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial especially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon….” 22. The prosecution case that Horil Pandit and Lilo Pandit suffered grievous injuries in the occurrence is established through the evidence of PW9, PW10 and PW11. They are the eyewitnesses who have established their presence in the field of Banshi Mahto where ten accused encircled them and started marpit. The prosecution case that Horil Pandit and Lilo Pandit were assaulted by sharp cutting weapon and hard and blunt substance is fully corroborated from the evidence of PW4 and PW12. 23. According to the prosecution, all ten accused who were involved in the marpit in the field of Banshi Mahto are named by PW11. The prosecution case that Horil Pandit and Lilo Pandit were assaulted by sharp cutting weapon and hard and blunt substance is fully corroborated from the evidence of PW4 and PW12. 23. According to the prosecution, all ten accused who were involved in the marpit in the field of Banshi Mahto are named by PW11. The cross-examination of these witnesses by the defence is primarily centered around the conduct of PW9 and PW11 who did not receive any injury in the occurrence or tried to flee away or intervened to save their brothers. 24. The conduct of a witness is examined in the context of facts and circumstances of the case and it is almost impossible to predict reaction of a person, for different persons may react differently in similar situations. It is trite that merely because conduct of a witness may appear unnatural his testimony cannot be discarded. In “Rana Partap v. State of Haryana” (1983) 3 SCC 327 the Hon'ble Supreme Court has observed that there is no set rule of natural reaction and to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. It is quite understandable that faced against a mob of ten accused the other witnesses did not try to intervene. Initially the appellants had targetted Lilo Pandit and when Horil Pandit intervened they turned to him. The other witnesses must have been praying for their lives and did not attempt to save Lilo Pandit and Horil Pandit. 25. In “Leela Ram v. State of Haryana” (1999) 9 SCC 525 the Hon'ble Supreme Court has observed as under: “11. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.” 26. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.” 26. In “Lahu Kamlakar Patil v. State of Maharashtra” (2013) 6 SCC 417 the Hon'ble Supreme Court has observed as under : “26. ….. it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded.” 27. There was a case and counter case lodged by both the parties. At least two persons from the prosecution side suffered serious injuries in the occurrence and one of them died. Though there was no evidence laid by the defence to show that one or more accused also suffered injuries, in course of hearing, Mr. Mahesh Tewari, the learned counsel for the appellants, tried to press hard that Mahabir Mahto and Nandkishore Mahto had also suffered injuries in the same occurrence. Be that as it may, it was not a case in which the accused in exercise of their right to self-defence warded off attack by the prosecution party and in the process Horil Pandit and Lilo Pandit suffered injuries. The backyards of Ramchandra Mahto and Lilo Pandit were almost adjoining and, according to the defence, Ramchandra Mahto was ploughing his own land which was objected to by Lilo Pandit. The backyards of Ramchandra Mahto and Lilo Pandit were almost adjoining and, according to the defence, Ramchandra Mahto was ploughing his own land which was objected to by Lilo Pandit. But it is not shown to the Court that Lilo Pandit and other prosecution witnesses were armed with deadly weapons and they were aggressors who mounted murderous attack on Ramchandra Mahto and other accused. 28. Mr. Mahesh Tewari, the learned counsel for the appellants contends that before the alleged fardbeyan of Lilo Pandit was recorded around 03:15 PM on 1st October 1988 at village Dhardharwa, an information to the police station was already given which therefore should have been made the basis for lodging the First Information Report. In order to establish that an information was given to Giridih (Town) police station, the defence has examined DW1 Babulal Prasad who was officer-in-charge of Giridih police station. 29. The informant is an injured witness. He tendered evidence in the Court which is in tune with the prosecution story about involvement of the appellants in committing marpit and causing grievous injuries to him and his brother. An injured witness is accorded a distinct place in a criminal trial because he lends assurance to the Court on account of his presence at the place of occurrence. 30. In “Kamta Yadav v. State of Bihar” (2016) 16 SCC 164 the Hon'ble Supreme Court has observed as under: “13.….. There are six eyewitnesses and three of them are injured eyewitnesses, which is a weighty factor to show the actual presence of these witnesses at the scene of occurrence. Moreover, the credibility and trustworthiness of all these eyewitnesses could not be shaken by the accused persons. Once it is found that these witnesses, who are eyewitnesses, were present and they have truthfully narrated the incidence as it happened and their depositions are worthy of credence, conviction can be based on their testimonies even if they were related to the deceased. The only requirement, while scrutinizing the interested witnesses, is to examine their depositions with greater caution and deeper scrutiny is needed, which exercise has been done by both the courts below. In fact, when the learned counsel for the appellants was confronted with the aforesaid factual and legal position, he could not even provide any answer to the same.” 31. As PW4, Dr. In fact, when the learned counsel for the appellants was confronted with the aforesaid factual and legal position, he could not even provide any answer to the same.” 31. As PW4, Dr. Shiv Narayan Prasad testified in the Court that he conducted postmortem examination over the dead body of Horil Pandit on 2nd October 1988 and found the following antemortem injuries on the dead body: “(i) Seven incised injuries on left leg in front part each 1/3”x ¼”x ¼” deep. (ii) Two incised injuries on back side of head each 2”x¼ ”x ¼” deep. (iii) Two lacerated injuries on front part of head each 2 ½” x ¼”x ¼” deep. (iv) One swelling on left arm 3”x2” with fracture of humerus bone (shaft). (v) One swelling on right arm 2½”x2” with fracture of humerus bone (shaft). (vi) One lacerated injury on right forearm on back side 1”x 1/8” x ¼”. 32. The sternum bone and ribs of Horil Pandit were found fractured. The injury Nos. 1 and 2 were antemortem in nature and caused by tangi and other injuries were caused by hard and blunt weapon such as lathi. In the opinion of the doctor, time elapsed since death was 36 hours and on account of the injuries sustained by him death was caused due to shock and hemorrhage. 33. Dr. Mathura Prasad Burnwal, who deposed as PW12, was posted as in-charge Medical Officer at State Dispensary, Giridih. On 1st October 1988, he clinically examined Lilo Pandit and found the following injuries on his person: (i) Incised wound on the vertex on the transverse position-5”x ½” x scalp deep. (ii) Incised wound on left parietal scalp- 3”x½”x scalp deep. (iii) Incised wound on the occipital area- 1” x ¼” x scalp deep. (iv) Incised wound on left occipital region-1¼” x ¼” x scalp deep. (v) Incised wound on the front of vertex-1”x ¼” x scalp deep. (vi) Incised wound on the shin of right tibial region-1” x ½” x ¼”. (vii) Compound fracture of bone of mid-shaft of left leg. (viii) Fracture of left forearm bone - 2” above wrist joint. (ix) Abrasion with swelling on the left arm 2” x 1”. (x) Abrasion with swelling on the right ankle joint- 1 ½” x ¾”. 34. PW12 found that the injury Nos. 1 to 6 were simple in nature caused by sharp weapon, may be tangi. The injury Nos. (viii) Fracture of left forearm bone - 2” above wrist joint. (ix) Abrasion with swelling on the left arm 2” x 1”. (x) Abrasion with swelling on the right ankle joint- 1 ½” x ¾”. 34. PW12 found that the injury Nos. 1 to 6 were simple in nature caused by sharp weapon, may be tangi. The injury Nos. 7 and 8 were grievous in nature caused by hard and blunt substance, whereas, injury Nos. 9 and 10 which are simple in nature were also caused by hard and blunt substance. PW12 has further stated that the injury Nos. 7 to 10 were caused by hard and blunt substance. 35. The medical evidence provides a solid foundation for the prosecution to prove the charges through the evidence of PW9, PW10 and PW11. The attack on Lilo Pandit and Horil Pandit by the appellants was with the common object to cause grievous injuries to them is reflected in the medical evidence. DW1 has deposed in the Court that an information was given in the police station but he did not elaborate upon the nature of information about the occurrence received in the police station. The statement made by the informant in the cross-examination that his statement was recorded in the police station would also not mean that he did not give his fardbeyan in the field of Banshi Mahto. We think that the informant was referring to his re-statement recorded by the Investigating Officer. The cross-examination of the witnesses was quite vague and the defence stopped at a stage which does not provide sufficient support to the plea set up by the accused. 36. The appellants are convicted with aid of section 149 of the Indian Penal Code. 37. Section 149 describes the offence which is to be so attributed under two alternative forms: (i) it must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly; or (ii) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. 38. In “Joseph v. State Rep. by Inspector of Police” AIR 2018 SC 93 the Hon'ble Supreme Court has observed as under: “8. 38. In “Joseph v. State Rep. by Inspector of Police” AIR 2018 SC 93 the Hon'ble Supreme Court has observed as under: “8. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the Court finds that the ingredients of Section 149, IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the Court to see as to who actually did the offensive act nor would it be open to the Court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149, IPC, the essential ingredients of Section 141, IPC must be established.” 39. A basic distinction between section 34 and section 149 of the Indian Penal Code is that section 34 of the Indian Penal Code is a rule of evidence, whereas, section 149 of the Indian Penal Code creates a substantive offence. To apply section 34 of the Indian Penal Code the prosecution is not required to establish that the accused who shared common intention did participate physically in the occurrence, whereas, section 149 of the Indian Penal Code requires that even though the accused did not do any overt act it must be established that he had knowledge that the offending act may be committed in prosecution of the common object of unlawful assembly. The prosecution story as narrated by the witnesses indicates that at 10:00 AM a quarrel had started when Ramchandra Mahto was trying to plough land and Lilo Pandit raised objections. Around noon on the same day, twenty persons attacked the house of Lilo Pandit and caused destruction and theft of his properties, however, this part of the prosecution story was not established. According to the prosecution, PW9 Guru Pandit, PW10 Lilo Pandit and PW11 Basudeo Pandit were apprehended by ten persons in the field of Banshi Mahto. Five persons were holding tangi and other five were carrying lathi. According to the prosecution, PW9 Guru Pandit, PW10 Lilo Pandit and PW11 Basudeo Pandit were apprehended by ten persons in the field of Banshi Mahto. Five persons were holding tangi and other five were carrying lathi. We are of the opinion that the co-accused who were carrying lathi must be imputed with the knowledge that grievous injuries may be caused in the occurrence. 40. All the appellants are co-villagers and the informant is a neighbour of Ramchandra Mahto. The dispute between the parties was blazing since last five years. A quarrel in the morning of 1st October 1988 subsequently aggravated and the appellants were engaged in marpit. According to the prosecution, at least four appellants were carrying tangi but the doctor has not rendered any opinion whether the injuries caused to Horil Pandit by sharp cutting weapon were grievous in nature. On a bare look at the postmortem report, we find that many injuries appear to be simple in nature. In the first incident, the appellants assaulted Lilo Pandit who received ten injuries out of which two injuries were grievous in nature. The appellants started assaulting Horil Pandit when he tried to intervene to save his brother. A common object may form at the place of occurrence and it is not necessary that there should be deliberations among the accused persons, but, the manner in which Horil Pandit and Lilo Pandit both were assaulted by the appellants it is difficult to hold that they acted in furtherance of common object to commit murder of Horil Pandit. 41. In view of the aforesaid discussions, we hold that the prosecution failed to establish the charge under section 302/149 of the Indian Penal Code against the appellants. 42. The materials on record establish that the appellants committed culpable homicide not amounting to murder. In our opinion, acts of the appellants bring their case under Exception 4 to section 300 of the Indian Penal Code. 43. Exception 4 to section 300 of the Indian Penal Code reads as under: “Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation — It is immaterial in such cases which party offers the provocation or commits the first assault” 44. Explanation — It is immaterial in such cases which party offers the provocation or commits the first assault” 44. In “Surinder Kumar v. Union Territory, Chandigarh” (1989) 2 SCC 217 the Supreme Court has indicated the essential ingredients which are necessary to cover a case under Exception 4 to section 300 of the Indian Penal Code, thus: “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly…..” 45. The evidence of PW4 gives sufficient account of the extent of injuries caused to Horil Pandit. Nine appellants were engaged in marpit, who according to the prosecution inflicted fourteen assaults upon Horil Pandit. The number of injuries caused to Horil Pandit by sharp cutting weapon out of which many are simple injuries reflect intention of the appellants to beat him severely, that is to say, to cause grievous injury and not to commit murder. 46. Accordingly, we hold that the appellants are liable to be convicted and sentenced to RI for ten years under section 304 Part I read with section 149 of the Indian Penal Code. 47. The appellants are convicted under section 307/149 of the Indian Penal Code for assault upon Lilo Mahto. 48. Section 307 of the Indian Penal Code is attracted when the act done with such intention or knowledge and under such circumstances that death would have been caused and the accused would be guilty of murder. 47. The appellants are convicted under section 307/149 of the Indian Penal Code for assault upon Lilo Mahto. 48. Section 307 of the Indian Penal Code is attracted when the act done with such intention or knowledge and under such circumstances that death would have been caused and the accused would be guilty of murder. So, a basic distinction between section 307 of the Indian Penal Code and section 302 of the Indian Penal Code is that the victim finally survives. The attack on Lilo Pandit was with an intention to kill him as would appear from the number of assaults upon him. He could survive only because the appellants diverted their intention to Horil Pandit who in the meantime intervened and raised hulla (bachao-bachao). In the aforesaid circumstances, conviction of the appellants under section 307 read with section 149 of the Indian Penal Code is affirmed. But award of maximum punishment under section 307 of the Indian Penal Code does not appear to be proper. 49. In “Hem Chand v. State of Haryana” (1994) 6 SCC 727 , the Hon'ble Supreme Court has held that the maximum punishment provided under the statute are normally not awarded to an accused unless there is some exceptional circumstance in the case. 50. In “State of Punjab v. Manjit Singh” AIR 2009 SC 2888 the Supreme Court has observed as under: “12. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the IPC, the Code confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regarding to the aggravating and mitigating circumstances vis-a-vis an accused in each case.” 51. Keeping in mind the aforesaid principles, we hold that the appellants are liable to be sentenced to RI for ten years under section 307/149 of the Indian Penal Code. 52. Keeping in mind the aforesaid principles, we hold that the appellants are liable to be sentenced to RI for ten years under section 307/149 of the Indian Penal Code. 52. Conviction and sentence of the appellants, namely, Ramchandra Mahto, Surja Mahto and Nandkishore Mahto under sections 148 and 341 of the Indian Penal Code and conviction and sentence of the appellants, namely, Laxmi Mahto, Mahabir Mahto, Mathura Kolh and Raju Kolh under sections 147 and 341 of the Indian Penal Code are upheld. 53. Mr. Bhola Nath Ojha, the learned APP informs the Court that the appellants are on bail. The appellants, namely, Ramchandra Mahto, Mathura Kolh and Raju Kolh have remained in custody for more than ten years, with remission. 54. Accordingly, the appellants, namely, Ramchandra Mahto, Mathura Kolh and Raju Kolh are discharged of liability of the bail-bonds furnished by them. The bail-bonds furnished by the appellants, namely, Surja Mahto, Nandkishore Mahto, Mahabir Mahto and Laxmi Mahto are cancelled. They shall surrender before the Court below to serve out the remaining sentence. 55. Cr. Appeal (DB) No. 969 of 2010 and Cr. Appeal (DB) No. 974 of 2010 are partly allowed, in the above terms. 56. IA Nos. 2820 of 2020 and 2821 of 2020 stand disposed of. 57. Let lower Court records be transmitted to the Court concerned, forthwith. 58. Let a copy of the Judgment be transmitted to the Court concerned through FAX.