I.P. SINGH, J.

(1.) Bhura Singh and his father Buddi Singh convict appellants have preferred this appeal against the judgment and order of Sri Chandra Mohan, Sessions Judge Banda dated 11-7-77 passed in S.T. no. 196 A of 1976 convicting and sentencing each one of the appellants under Section 302/34 IPC to imprisonment for life.

(2.) Buddi Singh appellant, Bharose deceased and Mangali were real brothers. Bhura appellant is son of Buddi appellant. Smt.Sunderwati is wife of Bhura appellant. Mangali has five sons, namely Jokha, Bahora alias Pattidar, Lalloo, Madhuraja and Dule Singh. Smt.Bhoori is the wife of Dule Singh. On 26-4-75 one hour before sun set in village Semri, Bharose deceased returned to his house after grazing goats. He found Smt.Sunderwati and Smt.Bhoori quarrelling with each other. He checked them by restoring as to why they always fought with each other. The two appellants happened to be sitting at their Chabutra nearby. They taunted the deceased Bharose that he was the real cause of dispute (Ladai ka Jar). At this there was an exchange of hot words and abuses between the deceased on one hand and two appellants on the other. Buddi Singh appellant was armed with lathi, Bhura appellant carried spear. In the scuffle that followed the two appellants gave blows with their respective weapons to Bharose deceased who fell down injured. Smt.Bhoori PW 1 advanced to save the deceased but Smt.Sunderwati (wife of Bhura appellant) non appellant gave lathi blow on the hand of Smt.Bhoori. An alarm raised by Smt. Bhoori attracted Bahora PW 2 and Nathu PW 3 to the spot. On the intervention of incoming witnesses the appellants went away to their house.

(3.) An oral first information report of this incident was lodged by Smt. Bhoori the same night at 8.30 at Police Station Tindwari (Banda) 5 miles away.

(4.) Bharose injured (since deceased) was medically examined by Dr. D. S. Srivastava PW 4 Medical Officer P. H. C. Tindwari (Banda) on 26-9-75 at 9.45 p. m. he found the following injuries on his person :

1. Lacerated wound 2 cm x .5 cm x bone deep on left side of head, 16 cm above root of left ear. 2. Lacerated wound 2 cm x 04 cm x 03 cm, 1.5 cm outer to the left eye brow. 3. Abrasion .17 cm x .15 cm on the left side of face 1.15 cm below lower lid of left eye. 4. Abraded contusion 1 cm x 1 cm .1 cm outer to the right eye brow. 5. Penetrating wound 1 cm x .8 cm x 1.5 cm (Only 1.15 cm depth could be reached on probing) on right side of chest, 9 cm below the acromion process of scapula. 6. Lacerated wound 3.15 cm x 1 cm x .13 cm on the front of left thumb, 1 cm below its root. 7. Red contusion 6 cm x 2 cm on the mid line of back, just on the spine of 11th thoracic vertebrae. 8. Abrasion 7 cm x . 12 cm, on the right side of back just on the level of inferior angle of scapula.

(5.) All the injuries were simple except no. 5 which was caused by sharp pointed weapon. The other were caused by blunt object. The injuries were found half day old.

(6.) The same Doctor examined Smt. Bhoori the same day at 10 p. m. and found one red contusion with swelling 8 cm x 6 cm on the outer side of right fore arm 5 cm below the elbow joint. The injury was simple and was caused by some blunt weapon. It was found half day old.

(7.) Bharose died at district Hospital on 23-4-75 at 1.45 p.m. He was found to have ante mortem injuries on his person.

(8.) The internal examination revealed, that the right temporal bone and parietal bone were fractured into pieces. Pleura was perforated on the right side. Pleural cavity contained about 4 oz. of clotted blood. Right lung was lacerated and contused. Peritoneum was perforated on the right illiac fossa. Cavity contained about 4 oz. of blood. In the opinion of the Doctor the cause of death was coma and syncope resulting from ante mortem injuries. In the opinion of the Doctor the above noted injuries were sufficient in the ordinary course of nature to cause death.

(9.) The appellants denied the occurrence and attributed their false implication in the case due to enmity. They did not lead any evidence in defence.

(10.) The prosecution examined in all seven witnesses including three eye witnesses namely Smt. Bhoori PW 1, Bhora PW 2 and Nathu PW 3. The learned Sessions Judge after assessing the evidence on the record convicted and sentenced the appellants as already mentioned above, It may also be mentioned that the third accused Smt. Sunderwati {non appellant) was convicted under Section 323 IPC but was released on probation.

(11.) The pedigree as described in the very beginning has been proved by Smt. Bhoori PW 1. She is, therefore equally related to the appellants as well as the deceased. The only criticism against her is that admittedly she and Smt. Sunderwati, being sister-in-law (Jethani-deorani) were often quarrelling and fighting with each other and as such Smt. Bhoori must have been inimical against the appellants. Similarly it is pointed out by the learned counsel for the appellants that Nathu PW 3 has admitted in his cross-examination that earlier Smt. Sunderwati had lodged a first information report against him and his uncle Sukhdeo regarding marpit. Of course the witness characterised the said report as a false one. Never-the-less learned counsel for the appellants has contended that if the said first information report was a false one it all the more provided reason for this witness Nathu to have deposed against the appellants. We however must record that the learned counsel for the appellants has not been able to point out anything to discredit Bahora PW 2. He is quite an independent witness and. there is no reason why he should come forward to depose against the appellants falsely. Bhura PW 2 said that at the time of occurrence he was returning from Khalihan and happened to see that a dispute was going on between Bharose deceased and the two appellants, Buddi appellant carried lathi and Bhura appellant carried spear. Bharose deceased was empty handed. According to him two appellants gave blows with their respective weapons to Bharose deceased. Smt. Bhoori was also present there and she was given lathi blow by Smt. Sunderwati. In their intervention the appellants went away to their house.

(12.) The same version of the incident has been deposed by Smt. Bhoor PW 1 and Natthu PW 3. True they are inimical witness but we do not find that the said enmity had forced them to give false evidence regarding the incident Smt. Bhoori PW1 is an injured witness and her presence on the spot cannot been denied. To us Natthu PW 3 also appeared to be a natural witness as his way to village from his Khalihan passes along house of the appellants. It was the time for the villagers to return to their houses after the days work. His presence on the spot is accepted by us.

(13.) Occular version of the above three witnesses finds corroboration from the first information report which cannot be said to be a delayed one, Their evidence also finds corroboration from medical evidence, of record.

(14.) The learned counsel for the appellants has however pointed our discrepancy about the number of injuries sustained and found on the person of Bharose deceased. He was earlier examined by Dr. D. S. Srivastava PW 2. He recorded in all 8 injuries on his person which included only one penetrating wound on the right side of chest. However in the post mortem examination report of Dr. K. L. Pillai he found ten injuries including two punctured wounds, one on the right side front chest and the other 1/5 cm x 1 cm abdominal cavity deep with lacerated and inverted margins. Obviously last punctured wound in the abdomen was not marked by Dr. Srivastava in the injury report which he had prepared earlier. Dr. Srivastava was confronted with this discrepancy and it was an omission on his part. We accept his explanation for simple reason that it is no bodys case that the deceased was subjected to penetrating wound in the abdomen in the hospital prior to his death. Normally we would also not accept such a course hard fact remains that he had suffered injuries as found in the post mortem examination report. Bahora PW 2 stated that Bhura appellant had in his view given 2 or 3 spear blows to Bharose. Natthu PW 3 has stated in his cross-examination that Bhura had given two spear blows to Bharose deceased. Thus eye witnesses accounts have been corroborated from the medical evidence on record. We therefore find and hold that prosecution have succeeded in proving their case against the appellants beyond all reasonable doubt and the deceased had met an unnatural death as a result of attack by the appellants with lathi and spear as alleged by prosecution.

(15.) The learned counsel for the appellants has however argued that the offence if at all committed by the appellants does not go beyond one falling under section 304 IPC. His argument is that there was no motive on the part of the appellants and the action was not pre-meditated one. We agree with him to this extent. The evidence on record indicates that attack followed some exchange of hot words or abuses between the appellants and the deceased. It is this circumstance which is desired to be capitalised by learned counsel for the appellant to bring down the offence from one under section 302 to one under section 304 IPC. However it is obvious that both the appellants were armed with respective weapons and both of them had simultaneously taken part in the attack. It was therefore apparent to each one of the appellants from the very beginning that in the said attack there is every possibility of both the weapons being used. Spear is a weapon which can cause death, so Buddi Singh who simply carried lathi, could be ascribed knowledge that in the said attack death could follow. Both the appellants can atleast be ascribed knowledge that the injuries they would be causing to the deceased would be sufficient in the ordinary course of nature to cause death. The spear blow specially the one which was dealt in the abdomen was such regarding which each one of them could have this much knowledge that the said injury was likely to cause death. This squarely brings the action of the appellants under section 300 IPC which defines murder. To our mind section 304 is not attracted to the facts and circumstances of the present case. We are also of the opinion that Section 34 IPC is well attracted.

(16.) The appeal has no force and it is hereby dismissed. The conviction and sentences awarded by learned Sessions Judge to each of the appellants are confirmed. The appellants are on bail. They shall surrender their bail bonds to serve out their respective sentences. They shall be taken into custody. Appeal dismissed.