JUDGMENT : ( 1. ) IN this appeal, the ten appellants, Siddu, Anokhi, Gangu balai, Ganga Prasad alias Gangu, Kannu, Narayansingh, Shriram, Karansingh, babu and Umravsingh, have challenged their convictions under section 302/149 of the Penal Code for committing the murder of Ghulu for which each of them was sentenced to undergo imprisonment for life. They have also challenged their convictions under section 307/149 of the Penal Code for attempting to murder Bhairu (P. W. 2) for which each of them was sentenced to undergo five years rigorous imprisonment. All the ten appellants have further challenged their convictions under section 148 of the Penal Code for which each of them was sentenced to undergo rigorous imprisonment for one year. All these sentences have been ordered to run concurrently. ( 2. ) THE prosecution case is this : The deceased Ghulu Balai was originally the resident of village Kalyanpur. One Ayodhyabai was the widowed aunt of appellant No. 2 Anokhi. She was getting her field cultivated through the deceased Ghuluhi that the deceased had illicit relation with Ayodhyabai. Consequent to this, the appellant Anokhi made a murderous attack on Ghulu in a field resulting in his prosecution under section 307 of the Penal Code. In this prosecution, the appellant Anokhi has been convicted under section 307 of the Penal code on 28-6-1974 and was sentenced to seven years rigorous imprisonment. Because of this assault, the deceased Ghulu left the village Kalyanpur out of fear of the appellant Anokhi and went to live at village Murawar. ( 3. ) ON December 21, 1973, there was a hearing of the prosecution under section 307 of the Penal Code in which the deceased Ghulu, his son and other relations were witnesses. The appellant Anokhi who was on bail had to attend the Court on this date. Therefore, in the morning at 5 a. m. , the deceased accompanied by his son Bhairu (P. W. 2), mother Hiribai (P. W. 5), minor daughter Sugan (P. W. 4) and a minor son Kailas left for Ashta in a bullock cart. Choukidar of village Murwar (P W. 6) whose name is also Ghulu had to get the licence of bis muzzle loading gun renewed. Hence, he joined the party of the deceased and kept his gun in the bullock cart. Choukidar of village Murwar (P W. 6) whose name is also Ghulu had to get the licence of bis muzzle loading gun renewed. Hence, he joined the party of the deceased and kept his gun in the bullock cart. At village Kurawar, chand Khan (P. W. 1), his younger brother Nazeer Khan (P. W. 3) and one rehman Khan also joined the party. Against Nazeer Khan (P. W. 3), a challan was expected to be filed in the Ashta Court that day. While going towards Ashta on the way near village Khadi, there is a flour mill where the appellants were sighted armed with Farsi Dharia etc. Seeing the deceased and his relations, the appellants went inside the flour mill. The bullock cart reached pir Batau hillock. Choukidar Ghulu (P. W. 6) was driving the bullock cart. Chandkhan (P. W. 1) and Bhairu (P. W. 2) and Nazeer Khan (P. W. 3) were following the bullock cart on foot. The appellants emerged from the bushes of Pir Batau hillock and started pelting stones at the bullock cart. Chand khan (P. W. 1) and Bhairu (P. W. 2) started running away. The deceased picked up the gun in spile of protests from Ghulu (P. W 6 ). A stone pelted by the appellants struck Nazeer Khan on the parietal region and he fell down. Chand Khan (P. W. 1) picked him up and both of them ran away. The appellants surrounded Bhairu (P. W. 2) and the deceased and assaulted them with farsis, Dharias etc. The deceased fired the gun to save his son and himself which injured the appellant Siddu. Thereafter, raising a call in the name of bajrangbali, the appellants went away. ( 4. ) CHANDKHAN (P. W. 1) went to the Ashta police-station and lodged the first information report (Ex. P-1) at 10-30 a. m. , the place of incident being at a distance of 2 miles from the police-station. A shirt and a dhoti were seized from the appellant No. 9, Babu as per seizure memo, Ex. P-2. A baniyan, a shirt and a paijama were seized from the appellant No. 1 Siddu as per seizure memo, Ex. P-3. From the appellant No. 2 Anokhi, a baniyan, shirt and a paijama were seized as per seizure memo, Ex. P-4. A shirt and a dhoti were seized from the appellant No. 9, Babu as per seizure memo, Ex. P-2. A baniyan, a shirt and a paijama were seized from the appellant No. 1 Siddu as per seizure memo, Ex. P-3. From the appellant No. 2 Anokhi, a baniyan, shirt and a paijama were seized as per seizure memo, Ex. P-4. From the appellant No. 7 shriram, a shirt, a baniyan and a paijama were seized as per seizure memo, ex. P-5. A dhoti and a shirt were seized from the appellant No. 5, Narayan-singh as per seizure memo, Ex. P-6. From the appellant No. 5, Kannu, a coat, a full-pant and a shirt were seized as per seizure memo, Ex. P-7. A dhoti and a shirt were seized from the appellant No. 8, Karansingh, as per seizure memo, ex. P-8. From the appellant No. 3 Gangu, a shirt and a dhoti were seized as per seizure memo, Ex. P-11. From the appellant No. 10, Umravsingh, a dhoti and a shirt were seized as per seizure memo, Ex. P-10. Articles, bloodstained and simple earth were seized from the place of incident as per seizure memoranda, Exs. P-17 to P-19. On the basis of memoranda (Exs. P-26 to P-36), Farsis, lathis and other weapons were seized as per seizure memoranda, Exs. P-37 to P-46. ( 5. ) AN inquest was held over the dead-body of Ghulu as perpanchanama, Ex. P-15. Dr. D. N. Datta (P. W. 7) performed the post-mortem examination on the dead-body of Ghulu and, as per report (Ex. P-14) found the following marks of injuries on his person : (i) Incised wound over the right leg on anterolateral aspect 4" x 2". Tibia completely cut away. Underlying structure also cut away. (ii) Incised wound over the lateral aspect of the right leg and the middle, oblique 5 1/2" X 3", Tibia, fibula and underlying structure cut away. (iii) Incised wound over the right thigh posterolaterally 6" x 3". All the underlying structure and soft tissues and femur cut away. (iv) Incised wound over the right side of abdomen, three fingers below the 12th ribs in axillary line, horizontal, 2" X 1" X i". (iii) Incised wound over the right thigh posterolaterally 6" x 3". All the underlying structure and soft tissues and femur cut away. (iv) Incised wound over the right side of abdomen, three fingers below the 12th ribs in axillary line, horizontal, 2" X 1" X i". (v) Incised wound over the right side, neck oblique, extending from spine of scapula to anterior border of the sterno mastoid 7" x 2" deep up to the vertebral column All underlying muscles and great vessels cut away. (vi) Incised wound over the right side neck, extending from 2" below the right ear going backwards up to the cervical vertebrae 8 X 4" deep up to the vertebral column. Underlying structure and big vessels cut away. (vii) Incised wound over the right side scalp extending from 3" above the root of the nose running horizontally backward up to occipital region underlying structure, right Parietal, temporal, occipital bone cut away. Brain substance cut away and protruding cut of the wound. (viii) Incised wound over the right side face extending from the ala of nose going towards and laterally up to the angle of right mandible Underlying structure, right maxillae and mandible cut away. On internal examination, it was found that cranium and spinal canal, parietal bone, temporal bone of right side were cut away so also occipital bone on right side. There was haemorrhage in the membrane and brain material was coming out. Under muscles of a!i injuries were cut away and there were fractures of the right parietal, right temporal, occipital bone, right maxilla, right mandible and right tibia and fibula. The death occurred between 24 to 36 hours prior to the post-mortem examination. All the injuries were ante-mortem in nautre. The death occurred due to the injuries over the neck and head causing cutting of all large vessels of the neck and head resulting in severe haemorrhage and shock. These injuries could be caused by a sharp and hard object and were sufficient in the ordinary course of nature to cause death. He, however, admitted that injuries Nos 1 to 3 were not on the vital part of the body and were not sufficient in the ordinary course of nature to cause death. ( 6. ) DR. R. V. Vaidhya (P. W. 12) examined Nazeer Khan (P. W. 3) and, as per report (Ex. He, however, admitted that injuries Nos 1 to 3 were not on the vital part of the body and were not sufficient in the ordinary course of nature to cause death. ( 6. ) DR. R. V. Vaidhya (P. W. 12) examined Nazeer Khan (P. W. 3) and, as per report (Ex. P-2), found following marks of injuries on his person : (i) Abrasion 1/4" X 1/4" on medial border of left mid fore-arm, simple caused by blunt object. Duration fresh. (ii) Lacerated wound on upper part of pinna right side, 1/2" X 1/2", X skin deep, simple and caused by blunt weapon. Fresh. ( 7. ) DR. R. V. Vaidhya (P. W. 12) also examined Bhairu (P. W. 2) and, as per report (Ex. P-21), found the following marks of injuries on his person : (i) Incised wound in front of left leg 2" above the ankle joint 3"x 1 1/2"x muscle deep, vertical. (ii) Incised wound middle front of left leg horizontal direction 1"x 1/2x muscle deep. (iii) Incised wound in middle front of right leg oblique l"x J" X muscle deep. (iv) Incised wound medial size of left leg in upper l/3rd 1/2"x 1/4"x skin deep. (v) Incised wound on lateral side of right leg middle 1/2" X 1/4" X skin deep oblique. (vi) Incised wound lateral side of right thigh 3"x1/2"x skin deep. (vii) Incised wound middle of forehead 2" above the root of nose oblique 1 1/2-"x 1/2"x muscle deep. (viii) Incised wound in middle front of nose extending about 1/2" below the root of nose to the tip of nose. 1 1/2 X 1/4" X skin deep. (ix) Incised wound on right shoulder region 6" X 2 1/2" X bone deep (inverted us hoped cutting the muscles tendon and bones) (Head of humerus, oblique, cut and lateral end of spine of scapula ). (x) Incised wound on left side of back oblique in direction over the left scapula. 3"x 1"x bone deep cutting the muscles and vertebrae border of scapula. Dr. Vaidhya stated that injuries Nos. 1 to 8 are were simple in nature and were caused by a sharp edged object. Injuries Nos. 9 and 10 were caused by a sharp edged object and were grievous in nature. The injuries could be caused by farsi and Dharia. Collectively, all the injuries were capable of causing death. Dr. Dr. Vaidhya stated that injuries Nos. 1 to 8 are were simple in nature and were caused by a sharp edged object. Injuries Nos. 9 and 10 were caused by a sharp edged object and were grievous in nature. The injuries could be caused by farsi and Dharia. Collectively, all the injuries were capable of causing death. Dr. Vaidhya suspected that injury No. 10 may have caused an injury to the lung. ( 8. ) DR. R. V. Vaidhya (P. W 12) examined the appellant Siddu and, as per report (Ex. D-7), found the following marks of injuries on his person : (i) Penetrating wound on left side of neck 2 1/2" above the medial end of left clavicle 1/4-"x 1/4" direction is oblique on the lateral side. (ii) Penetrating wound on right side of cheek 2" lateral to angle of mouth, -1/4"x 1/4" x l/8". (iii) Penetrating wound 1" below the second wound, size 1/4"x 1/4" x 1/8". (iv) Penetrating wound on upper lip just close to right nostril, size 1/4" x 1/4 x l/8th. Dr. Vaidhya stated that the injuries could be caused by gun shot. He had taken out one Chharra from one of the wounds and sent it to the Station officer, Ashta in a sealed bottle. ( 9. ) DR. R. V Vaidhya (P. W. 12) also examined the appellant Anokhi, and, as per report (Ex. D-8), found an inched wound on right scapular region, 1" X 1/4" X 1/4" oblique, caused by a sharp edged object ( 10. ) DR. K. G. Hurkat (P. W. 13) X-rayed right shoulder and left spacula of Bhairu (P. W. 2) and found fractures of the 6th rib, right side shoulder upper border of spacula and lateral end of clavicle The fracture of the 6th rib was on vital part of the body. He did not detect any injury to the lung. He further stated that fractures of the ribs are usually not fatal. ( 11. ) THE report of the Chemical Examiner (Ex. He did not detect any injury to the lung. He further stated that fractures of the ribs are usually not fatal. ( 11. ) THE report of the Chemical Examiner (Ex. P-49) shows that the articles seized from the spot, clothes of the deceased, Kamij and Paijama of the appellant Siddu, Kamij and paijama of the appellant Anokhi, Dharia dhoti and kami} of the appellant Gangu son of Kalu, farsi of the appellant Ganga Prasad alias Gangu, coat, pants, Kamij and Farsi of the appellant Kannu, Farsi of the appellant Narayansingh, Farsi of the appellant Shriram, dhoti and lathi pieces of the appellant Karansingh, Kami} and dhoti of the appellant Babu and dhoti and lathi pieces of the appellant Umrav were stained with blood. The report of the serologist (Ex. P-50) shows that Kamij and Paijama of the appellant siddu, Kami} and paijama of the appellant Anokhi, dhoti of Gangu son of kalu,farsi of the appellant Ganga Prasad alias Gangu, coat, pants, Kami] and Farsi of the appellant Kannu, Farsi of the appellant Narayansingh, Farsi of the appellant Shriram, dhoti and lathi pieces of Karansingh, Kamij and dhoti of the appellant Babu and Dharia and lathi pieces of the appellant Umravsingh were stained with human blood. ( 12. ) THE three appellants Siddu, Anokhi and Gangu son of Kalu admitted their presence at the time of incident. They, however, contended that they were going in a bullock cart. Seeing the deceased and his companions, they jumped out of their own bullock cart and ran towards field. The deceased fired with the gun at the appellant Siddu and Chandkhan (P. W. 1) attacked the appellant Anokhi with a Farsi. They in their turn, in order to defer d themselves, assaulted the deceased and others They denied that all the appellants were at the flour mill duly armed or that they had in a body got down from Pir Batau hillock and pelted stones or had attacked the deceased and his son. The appellants 4 to 10 denied their presence and participation in the assault in question. ( 13. ) THE point for decision in this appeal is whether the ten appellants formed an unlawful assembly with tae common object of committing the murder of Ghulu and also with the common object of attempted murder of bhairu (P. W. 2) and in prosecution of that common object attacked Ghulu and Bhairu. ( 13. ) THE point for decision in this appeal is whether the ten appellants formed an unlawful assembly with tae common object of committing the murder of Ghulu and also with the common object of attempted murder of bhairu (P. W. 2) and in prosecution of that common object attacked Ghulu and Bhairu. ( 14. ) WE have heard Shri S. C. Datt, Advocate, for the appellants and shri S. L. Saxena, Government Advocate, for the State. We are of the view that the convictions of the ten appellants under sections 302/149, 307/149 and 148 of the Penal Code are in order. ( 15. ) SHRI S. C. Datt did not dispute that Ghulu is dead and that he met with a homicidal death. In fact, there is evidence of number of prosecution witnesses who saw the dead-body of Ghulu with number of injuries on his person. Dr. D. N. Datta (P. W. 7) found eight incised wounds on the person of the deceased. Brain substance was cut away and was protruding out of the wound. There was an incised wound over the right side neck 8" x 4" with underlying structure and vessele cut away. These injuries could be caused by a sharp and hard object and were sufficient in the ordinary course of nature to cause death. The death occurred due to injuries over the neck and head causing cutting of all the large vessels of the neck resulting in severe haemorrhage and shock. We are, therefore, convinced that Ghulu is dead and that he met with homicidal death. These facts were not disputed before us. ( 16. ) SHRI S. C Datt, Advocate, for the appellants strenuously argued that the appellants 4 to 10 were not present at the time of incident and have been falsely implicated due to enmity. Shri Datt further contended that the appellant Siddu suffered a gun shot injury at the hands of the deceased Ghulu and that the appellant Anokhi had an injury on right scapular region caused by a sharp edged weapon. The deceased Ghulu, his son Bhairu (P. W. 2) and their companions attacked them and, therefore, they had acted in the exercise of the right of defence of person. The deceased Ghulu, his son Bhairu (P. W. 2) and their companions attacked them and, therefore, they had acted in the exercise of the right of defence of person. Shri Datta further suggested that the origin of the quarrel has not been satisfactorily established by the prosecution and this could be at the most a case of free fight amongst both the parties in which case there is no question of the exercise of right of defence of person and individual liability of the appellants will need to be ascertained. Shri S. L. Saxena, Government Advocate opposing the above contention contended that all the appellants got down from the Pir Batau hillock, pelted stones at the victims by pursuing them and after surrounding them, killed Ghulu and attempted to kill Bhairu (P. W. 2 ). Faced with this situation, the deceased Ghulu picked up the gun from the bullock cart belonging to Ghulu Choukidar (P. W. 6) and fired in self defence. Even this had no effect and the appellants surrounded him, severely thrashed him and his son and ultimately caused the death of Ghulu. We have perused the record and considered these submissions. We are of the view that the prosecution has conclusively established that the ten appellants were the aggressors and that they had killed Ghulu and attempted to kill his son Bhairu (P, W. 2) and that the circumstances did not justify the contention of the defence that they had acted in the exercise of the right of defence of person. ( 17. ) THE prosecution and the defence versions are one on the point that whatever quarrel took place it took place near the Pir Batau hillock. The prosecution stated that Chandkhan (P. W. 1), Bhairu (P. W. 2), Nazeer Khan (P. W. 3), Sugan (P. W. 4), Hiribai (P. W. 5) and Ghulu Choukidar (P. W. 6) were in one party going towards Ashta. Chandkhan (P. W. 1), Nazeer Khan (P. W 3), Bhairu (P. W 2) and the deceased were on foot following the bullock cart driven by Ghulu Choukidar (P. W. 6) in which Sugan (P. W. 4) and hiribai (P. W. 6) were also sitting. According to the statements of the appellants Siddu and Anokhi, there were four persons in the party of the prosecution witnesses. According to the statements of the appellants Siddu and Anokhi, there were four persons in the party of the prosecution witnesses. But according to the defence witnesses Jalam (D. W. 1) and Madho (D. W. 2), there were five persons in the party of the deceased. The defence witnesses denied that Sugan (P. W. 4) and Hiribai (P. W. 3) were amongst the deceased party. But even accepting the figure of the defence witnesses, the presence of the deceased Ghulu, his son Bhairu (P. W. 2), Chandkhan (P. W. 1), nazeer Khan (P. W. 3) and Ghulu Choukidar (P. W. 6) could not be on any count negatived. ( 18. ) ACCORDING to the prosecution witnesses, the appellants in a body duly armed were seen near the flour mill of village Khadi. On this point, there is the evidence of Chandkhan (P. W. 1) (para 3), Bhairu (P. W. 2) (para 3), nazeer Khan (P. W. 3) (para 2), Sugan (P. W. 4) (para 1), Hiribai (P. W. 5) (Para 2) and Ghulu Choukidar (P. W. 6) (Para 1 ). It was contended that this evidence could not be accepted because there is no reference to it in the first information report (Ex. P-1) lodged by Chandkhan (P. W. 1 ). No doubt, this fact is missing from Ex. P-1 but the first information report need not contain all facts and is not the last word on the prosecution version. Besides this, there is no inconsistency in regard to the presence of the appellants at the flour mill in the evidence of other prosecution witnesses. Ghulu Choukidar (P. W. 6)has no animus against any of the appellants. He appears to be a truthful witness because he frankly admitted that he knew only the appellants Gangu balai (appellant No. 3) and Siddu (appellant No 1 ). We find no flaw in this aspect of the prosecution version and we are convinced that the prosecution witnesses had seen the appellants duly armed at the flour mill of village Khadi. This being a village, there was no question of the appellants attacking their victims there and the fact that they hid themselves behind the flour mill indicated that their presence at the flour mill was not innocent and over and above this, their being present in a body duly armed could not be construed as an innocuous coincident. ( 19. This being a village, there was no question of the appellants attacking their victims there and the fact that they hid themselves behind the flour mill indicated that their presence at the flour mill was not innocent and over and above this, their being present in a body duly armed could not be construed as an innocuous coincident. ( 19. ) WE will now scrutinize the evidence of the prosecution witnesses witness-wise. Though we are convinced that Sugan (P. W. 4) was present in the cart, yet her version as an eye-witness at Pir Batau hillock cannot be accepted in view of her statement (Ex. D-5) wherein she had stated that she did not know whether her father died in the assault by the appellants. In view of this contradiction in Ex. D-5, we totally exclude her evidence in regard to the assault near the Pir Bateu hillock but we believe her evidence in regard to the presence of the appellants duly armed with Dharias Farss etc. at the flour mill of Khadi. ( 20. ) CHANDKHAN (P. W. 1) was admittedly present near the Pir Batau hillock. He stated that Ghulu (P. W, 6) was driving the bullock cart and was accompanying with a gun for which he had to go to Sehore for renewal of the licence. He further stated that when they reached the Pir Batau hillock, the appellants emerged from small bushes and started pelting stones. He and his companions began running ahead. They were pursued by the appellants who were pelting stones. A stone struck Nazeer Khan (P. W. 3) on his parietal bone. Thereafter, the appellants surrounded the deceased and his son Bhairu (P. W. 2) and he and Nazeer Khan (P W. 3) escaped. When he turned behind, he saw the deceased and his son Bhairu (P. W. 2) lying on the ground and the appellants assaulting them with Dharias, axes and lathis. Thereafter, he and nazeer Khan (P. W. 3) fled away. He reached the Ashta Police-station and lodged the first information report at 10. 30 a. m. , i e. , within 11/2 hours of the incident. The first information report was promptly lodged and there was no time for deliberation or concoction. This report contained the names of the appellants as the assailants of the father and the son with Dharias and Farsis. 30 a. m. , i e. , within 11/2 hours of the incident. The first information report was promptly lodged and there was no time for deliberation or concoction. This report contained the names of the appellants as the assailants of the father and the son with Dharias and Farsis. He stated that the beating was merciless and he did not hope for their being alive. In this report, he has mentioned that Nazeer Khan had sustained an injury with a stone. the first information. report promptly lodged lent valuable corroboration to the story of Chandkhan (P. W. 1 ). We are convinced on his evidence that the appellants duly armed were first sighted at the flour mill of khadi and thereafter emerged from the Pir Batau hillock and pursued chandkhan (P. W. 1) the deceased, Bhairu (P. W. 2) and Nazeer Khan (P. W. 3)by pelting stones at them and thereafter surrounding the father and the son gave them merciless thrashing. The truthfulness of this report is apparent that Chandkhan (P. W. 1) stated what he had seen and felt and did not mention that Ghulu was dead which position would have come if the report was lodged after deliberation. No doubt, proceedings under sections 107/117 of the Code of Criminal Procedure were launched against him at the instance of the appellant Anokhi but his presence at the Pir Batau hillock at the time of incident is undisputed and his evidence is duly corroborated by the promptly lodged first information. We believe his evidence that all the appellants bad participated in the attack of Ghulu and Bhairu (P. W. 2) ( 21. ) NAZEER Khan (P. W. 3) is the brother of Chandkhan (P. W. 1 ). He also stated that near the Pir Batan hillock the appellants emerged out and pelted stones at them. He and his brother Chandkhan, the deceased Ghulu and Bhairu (P. W. 2) were running away pursued by the appellants. Thereafter, he stated that the appellants surrounded the deceased and bis son and when he looked behind he saw the appellants assaulting the two persons. In paragraph 3, he stated that the deceased Ghulu picked up the gun from the bullock cart saying that he had danger to his life and that when he had advanced a little ahead he heard the gun fire. In paragraph 3, he stated that the deceased Ghulu picked up the gun from the bullock cart saying that he had danger to his life and that when he had advanced a little ahead he heard the gun fire. In paragraph 8, be repeated that the appellants were pursuing him in the field. His evidence shows that the appellants had first pursued him and others, had pelted stones at them and, thereafter surrounded the two persons. In these circumstances when the deceased and his son were surrounded and assaulted, if the deceased picked up the gun and fired at the appellant Siddu injuring him that will not mean that the deceased and bis party were aggressors. On the other hand, it shows that the appellants were definitely aggressors, had pursued the complainant party had surrounded the father and the son and if in such a situation, the deceased used the gun that will only mean that he did so to save himself from the assault by a body of assailants. ( 22. ) THE evidence of Nazeer Khan (P. W. 3) is corroborated by the evidence of Dr. R. V. Vaidhya (P. W. 12) who found an abrasion on the medial border of left midforearm and a lacerated wound on upper part of pinna right side. These injuries could be caused by a hard and blunt object and were fresh in nature. The presence of injuries on the person of Nazeer khan (P. W. 3) not only established his presence in the incident but lend corroboration to the prosecution version that he was himself a victim of assault. We believe the evidence of Nazeer Khan and hold that the appellants were the aggressors, were pursuing the complainant party, had surrounded the father and the son and the use of gun fire by the deceased, which is admitted by this witness, was definitely with a view to save his person. ( 23. ) BHAIRU (P. W. 2) is the son of the deceased. He stated that the appellants got down from the Pir Batau hillock and pelted stones at them. He, his father the deceased, Chandkhan (P. W. 1) and Nazeer Khan (P. W. 3) started running away towards Ashta followed by the appellants who were pelting stones. ( 23. ) BHAIRU (P. W. 2) is the son of the deceased. He stated that the appellants got down from the Pir Batau hillock and pelted stones at them. He, his father the deceased, Chandkhan (P. W. 1) and Nazeer Khan (P. W. 3) started running away towards Ashta followed by the appellants who were pelting stones. Then the appellants surround him and his father and in spite of his father giving a warning that he possessed a gun, the appellants began assaulting him and his father. Bhairu (P. W. 2) admitted that when he and his father were surround, his father fired the gun. He admitted in paragraph 5 that the appellant Siddu had suffered injuries. Thus, this witness had admitted that his father had fired the gun and had admitted injuries on the person of the appellant Siddu. In paragraph 4, he stated that after he and his father were surrounded appellant Siddu dealt a Farsi blow on his right shoulder and thereafter his father fired the gun. He further stated that the appellants continued to assault his father till be was dead. His evidence could not be discredited because in the two dying declarations (Exs. D-1 and D-2) recorded by the Tahsildar and the Medical Officer he made no reference to the pelting stones. He also could not be discredited because of omission of the name of the appellant Narayan in Ex. D-l. It was recorded at 12-35 p m. on December 21, J 973. In his earlier dying declaration (Ex. D-2) recorded at 11-45 a. m. , he had named appellant Narayan as the assailant. Bhairu (P. W. 2) had suffered serious injuries by the sharp edged weapons and must have been in perplexed state of mind. The omission of the name of the appellant Narayan in the subsequent dying declaration cannot discredit his earlier evidence, more so, when presence of the appellant Narayan has been testified by the other witnesses and when his name found place in the first information report (Ex. P-1 ). He further stated that the appellants paid no attention to his fathers warning that he possessed a gun. In paragraph 13, he is positive that his father fired after he was injured. This shows that his father fired the gun to save his son. ( 24. P-1 ). He further stated that the appellants paid no attention to his fathers warning that he possessed a gun. In paragraph 13, he is positive that his father fired after he was injured. This shows that his father fired the gun to save his son. ( 24. ) HIS evidence regarding implication of the ten appellants is duly corroborated by the two dying declarations (Exs. D-1 and D-2 ). Since Bhairu has chanced to live, his dying declarations (Exs. D-1 and D-2) can be used as previous statements either to corroborate or contradict his subsequent version. In this connection reference may be made to Sarkars law of Evidence (Twelfth edition) page 356. It is observed as under : ". . . . . . But when a person making a dying declaration chances to live, his statement! cannot be admitted as dying declaration under section 32, but it may be relied on under section 157 to corroborate or contradict his statement in Court [ R. V. Ramasattu (194 P W N 622), Bishundhari v. R. (AIR 1972 SC 7764 at p. 1766) and Vallon v. S. A. (1956 T C 207)" ( 25. ) IN Jai Narain Mishra and others v. The State of Bihar (4 BLR 434.), it is held as tinder: ". . . . . . Ext. 7 was initially recorded by the Magistrate as a dying declaration but since Shyamdutt survived that has been proved as corroborating Shyamdutts evidence. It substantially corroborates the testimony of Sbyamdutt in Court. " ( 26. ) IN (Shaitansingh v. The State of Madhya Pradesh (Cri A. No 585 of 1977, decided on the 16th Nov. 1977.) decided by a Division Bench of this Court, it is held as under: ". . . . . . Since Banabai has survived, her dying declaration is not admissible under section 32 of the Indian Evidence Act but the statement so given by her can be used to corroborate her testimony in Court Under section 157 of the Act a Division Bench of the Pombay High Court in Emperor v. Rama Sattu (4 BLR 434) has held that where a persor, making a dying declaration chances to live, his statement cannot be admitted under section 32 but it may be relied on under section 157 to corroborate the testimony of the complainant when examined in the case. " ( 27. " ( 27. ) IN view of the law as stated above, the two statements of Bhairu (P. W. 2) (Exs D-1 and D-2) can be used for corroborating his statement in the Court. We have perused Exs. D-1 and D-2 and found that they substantially corroborate his version in the Court that the appellants were the assailants of his father and himself. The prosecution version is convincing. There is the evidence that the complainant party had run towards Ashta side. If they bad got down from the cart and had proceeded to attack the appellants party, in the normal course, they would have run in opposite direction to attack the appellants This is not the case here. Further, the prosecution witnesses are truthful inasmuch as they totally excluded two persons by name sitaram and Babulal, even though their names find place in the first information report. They also stated that the son of the appellant Siddu was one of their saviour. This shows that the prosecution witnesses had no motive to implicate innocent persons and had come forward to speak the truth. ( 28. ) IT was contended that Bhairu (P. W. 2) was the son of the deceased, sugan (P. W. 4), Hiribai (P. W. 5) and Ghulu Choukidar (P. W. 6) were their relations and, therefore, their evidence being interested should not be believed. Mere relationship is no ground to reject the testimony of the relation or inimical witnesses. The Court should, however, scrutinize their evidence with caution. In the normal course, close relation will not spare the real culprit and will not implicate innocent persons. ( 29. ) IN Angnoo and others v. State of Uttar Pradesh ( AIR 1971 SC 296 ), it was held that the witness was the brother of the deceased and hence the fact of his relationship would add to the value of his evidence because he would be interested in getting the real culprit, rather than innocent persons, punished. See also Dulip Singh and others v. The State of Punjab (AIR 1953 s c 364) ). ( 30. ) IN view of the law stated above, the evidence of the relation witesses could not be rejected purely on the ground of their being related to the deceased. See also Dulip Singh and others v. The State of Punjab (AIR 1953 s c 364) ). ( 30. ) IN view of the law stated above, the evidence of the relation witesses could not be rejected purely on the ground of their being related to the deceased. On the other hand, their relationship adds to the value of their evidence that they would implicate the real culprit and not innocent persons. This is further confirmed from the fact that though the names of the two persons were mentioned in the first information report, they were frankly omitted at the evidence stage and it was further stated that the son of the appellant Siddu by name Gangu had saved Bhairu (P. W. 2) by taking him in his lap. We are, therefore, convinced that the prosecution witnesses are truthful. A. There is evidence to show that the appellant Anokhi himself lodged the report (Ex. D-9) on December 21, 1973. This report contained confessional statement of the appellant and since the appellant Anokhi, maker of the report, himself is an accused, Ex. D-9 may not be admissible. See Aghnoo Nagesia v. State of Bihar (1966 MPLJ 49 (S C)= AIR 1966 SC 119 ) and Nisar Ali v. The State of Uttar Pradesh ( AIR 1957 SC 366 ). In view of the law stated above, we would omit Ex. D-9 from our consideration. ( 31. ) BESIDES the above evidence, there is the evidence of Hiribai (P. W. 5) who saw the appellants getting down from the Pir Batau hillock and pelting stones on the deceased Ghulu, Chandkhan (P. W. 1), Bhairu (P. W. 2) and nazeer Khan who began running away. He stated that a stone struck against nazeer who was picked up by Chandkhan. Then the appellants surrounded the deceased Ghulu and Bhairu (P. W. 2 ). These persons were armed with dharias, Farsis and Ballams, Then Sugan (P. W. 4) rushed and called Ghulu choukidar (P. W. 6 ). In paragraph 5, she stated that the appellants were assaulting her son while he was running away. Thus, her evidence also impli-cated the appellants in the attack on the deceased Ghulu and Bhairu (P. W. 2 ). These persons were armed with dharias, Farsis and Ballams, Then Sugan (P. W. 4) rushed and called Ghulu choukidar (P. W. 6 ). In paragraph 5, she stated that the appellants were assaulting her son while he was running away. Thus, her evidence also impli-cated the appellants in the attack on the deceased Ghulu and Bhairu (P. W. 2 ). Her evidence was attacked on the ground that there is no reference to gunfiring but this omission is natural inasmuch as she was sitting in the bullock cart which was going ahead and the appellants were pursuing the deceased, and his son. Seeing 11 persons armed with dangerous weapons pursuing the deceased and his son, she must have got perturbed and, therefore, there was every likelihood of her missing the gunfire. This omission becomes immaterial when the other prosecution witnesses have testified to the gun fire. On this count alone, we are not prepared to disbelieve Hiribai. ( 32. ) THEN there is the evidence of Choukidar Ghulu (P. W. 6) who not only saw the appellants at the flour mill but also at the Pir Batau hillock where the appellants attacked them with stones. In paragraph 2, he stated that the deceased Ghulu, Bhairu (P. W. 2) and Chandkhan (P. W. 1) were running away and the appellants were pelting stones on them. He heard the- gun fire and on turning back, he saw the appellants attacking the deceased and Bhairu (P. W. 2 ). His attention was drawn to portion A to A in Exhibit D-6 which he disowned. In paragraph 10, he stated that he not only saw the crowd of the appellants but also heard the gun fire. He disowned portion B to B in exhibit D-6 from which it was argued that the gun fire had taken place first and thereafter the attack on the deceased and Bhairu (P. W. 2) started. This sentence at portion B to B has to be read in the context of the earlier sentence which was not put to the witness where he had stated that the assailants had surrounded Ghulu (deceased) and Bhairu. Then he named only two persons siddu and Gangu. His evidence, therefore, shows that he had seen number of assailants at the flour mill and then had seen the assailants surrounding the deceased and Bhairu (P. W. 2 ). Then he named only two persons siddu and Gangu. His evidence, therefore, shows that he had seen number of assailants at the flour mill and then had seen the assailants surrounding the deceased and Bhairu (P. W. 2 ). It was thereafter the deceased fired the gun. From his evidence, the only conclusion is that the victims being pursued and subjected to stone pelting and on being surrounded felt apprehensive of their life. Therefore, Ghulu in spite of the protest, picked up the gun saying that there was danger to his life (See paragraph 3) P. W. 3 and paragraph 12 (P. W. 2 ). ( 33. ) THUS, we believe the evidence of Ghulu Choukidar (P. W. 6) and hold that he had identified the appellants Siddu and Gangu and that he had seen the assailants pursuing the deceased and others and pelting stones at them. Thus, his evidence shows that the victims could entertain reasonable apprehension of serious danger to their life and, therefore, the deceased, who took up the gun from the cart, declared that there was danger to his life and hence fired it after he was pursued and subjected to stone pelting and thereafter being surrounded. His evidence does not indicate that the appellants had any occasion to exercise the right of defence of person. ( 34. ) SHRI S. C. Datt, Advocate, for the appellants contended that the prosecution witnesses have not explained the injuries on the person of the appellants Siddu and Anokhi. The injury on the person of the appellant anokhi was situated on the right scapular region and was of insignificant dimension (1" x 1/4" 1/4" X 1/4" ). The part of the body where it was located could not be easily seen. As regards the injury on the person of the appellant Siddu, there is evidence of more than one person that a gun was fired. Bhairu (P. W. 2) in paragraph 5 admitted that the appellant Siddu had injuries on his person. The denial by other prosecution witnesses of the injuries on the person of the appellants Siddu and Anokhi will not be of consequence when the prosecution witnesses admitted gun fire and when Bhairu admitted injuries on the person of the appellant Siddu. Bhairu (P. W. 2) in paragraph 5 admitted that the appellant Siddu had injuries on his person. The denial by other prosecution witnesses of the injuries on the person of the appellants Siddu and Anokhi will not be of consequence when the prosecution witnesses admitted gun fire and when Bhairu admitted injuries on the person of the appellant Siddu. As discussed above, the gun was fired when the deceased and his son were faced with a real danger to their life and, therefore, the gun fire was in the exercise of the right of defence of the person of the deceased and his son. The evidence discussed above conclusively established that the appellants had assembled at the flour mill with aggressive design and thereafter suddenly got down from the Pir Batau hillock, pursued the victims pelting stones at them and by attacking them. In these circumstances, firstly, there is an explanation to the injuries on the person of the appellants Siddu and Anokhi and secondly, there is admission of the prosecution witnesses about the gun firing and, therefore, it could not be urged that the prosecution witnesses have totally failed to explain the injuries on the person of the appellants Siddu and Anokhi. ( 35. ) IN Lakshmi Singh and others etc. v. State of Bihar ( AIR 1976 SC 2263 ), it is held that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw following inferences: (i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (iii) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. In this very ruling it is further held that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. In this very ruling it is further held that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. We have scrutinised this case in the light of the above observations. We are of the view that more than one witness has admitted gun firing, the son of the deceased admitted injuries on the person of the appellant Siddu and the injury on the person of Anokhi was simple and situated on such a part of the body which could have escaped observation. In these circumstances the defence of person is not probabilised and failure to explain injuries is not fatal to the prosecution case. We are convinced that chandkhan and others were going in a body to Ashta. It is not disputed that the appellant Anokhi had a case under section 307 of the Penal Code at Ashta court. The prosecution witnesses stated that they were going to attend this case. Failure to produce summons to witnesses will not throw doubt on company of these persons, more so when the defence itself admits that there were five persons in the party of the complainant. Ghulu Choukidar (P. W. 6) was going to Sehore for renewal of his gun licence. Nazeer Khan (P. W. 3) had also a case at Ashta Court which is clear from the evidence of the Sub-Inspector D. P. Shukla (P. W. 18) (Paragraph 49 ). ( 36. ) IF the complainant party was the aggressor, it would have attacked the appellants when they had sighted them at the flour mill. The evidence disclosed that except the gun of Ghulu Choukidar (P. W. 6), there was no weapons with the complainant party while the appellants were armed with deadly weapons. As stated above, the gun created simple injuries and it appears that after the deceased had fired the gun, the gun was snatched away because the gun was produced by the appellants at the police-station. (Para 48 of P. W. 18), thereafter, the deceased and his son were unarmed. As stated above, the gun created simple injuries and it appears that after the deceased had fired the gun, the gun was snatched away because the gun was produced by the appellants at the police-station. (Para 48 of P. W. 18), thereafter, the deceased and his son were unarmed. The nature of the iujuries on the person of the father and the son indicated that the assailants were more than one and that the victims were subjected to a very merciless beating. On the person of the deceased, underlying muscles were cut, there was fracture of the right parietal, right temporal, occipital bone, right maxilla, right mandible, right tibia and fibula. The injuries were situated on the abdomen, neck and scalp. Brain substance was cut away and was protruding out of the wound. On the person of Bhairun (P. W. 2), there were ten incised wounds. The parts on Which these injuries were situated it appears that the assailants aimed at both legs, thigh, fore-head, nose, right shoulder region and scapula. The incised wound on the left scapula was bone deep cutting the muscles and vertebrae border of scapula. Similar is the case with injury No. 9. The denial of the appellants in face of these injuries negatived their contention that they had not taken part in the attack. Moreover, they could not claim any right of defence of person when they themselves had assembled duly armed at the flour mill, had pursued the victims who were running away, pelted stones, surrounded them duly armed and severely thrashed them even when the gun was snatched away. Looking to the evidence as above, we are convinced that this is not a case of sudden unpremeditated fight. The appellant has absolutely no justification for the attack on the ground of exercising right of defence of person. ( 37. ) WE will briefly touch the defence evidence. Jalam (D. W. 1) admitted that there were five persons in the party of the deceased. They were armed with a gun, ballam and Farsi but the appellants were totally unarmed. In paragraph 4, he admitted that he was deposing about the incident for the first time. In paragraph 6, he admitted that he knew the appellants for a long time. He admitted that some of the appellants belonged to his caste. They were armed with a gun, ballam and Farsi but the appellants were totally unarmed. In paragraph 4, he admitted that he was deposing about the incident for the first time. In paragraph 6, he admitted that he knew the appellants for a long time. He admitted that some of the appellants belonged to his caste. In paragrah 11, he admitted that the appellants had brought him to the Court and since yesterday they were flattering him. His evidence besides being interested is clearly got up. ( 38. ) MADHO (P. W. 2) also admitted the presence of five persons from the complainants side. He was called to the Court by the appellants Anokhi and siddu. The appellant Siddu is related to Randal Khati whose brothers daughter is married to the brother of Anokhi. In paragraph 4, he admitted that he was brought to the Court by Ramlal Khati. His presence became doubtful when he says that the gun was fired from behind. The gun shot injuries of the appellant Siddu is on face. This shows that he had not seen the incident and bad come to support the appellants Siddu and Anokhi at the instance of Ramlal Khati. ( 39. ) WE are of the view that the evidence of the defence is definitely procured to shield the appellants in whom the defence witnesses are interested. ( 40. ) THE defence version appears highly improbable because if five persons armed with a gun, Dharia and Farsi were to attack the appellants, they would have sustained serious injuries and not simple injuries as is clear from the record. On the other hand, the injuries on the person of the deceased and his son are numerous and serious in nature which indicated that they are victims of concerted attack. Besides this, the appellant Anokhi was facing the prosecution because of his having assaulted the deceased. This shows that the appellant Anokhi had a grudge against the deceased. Ghulu Choukidar (P. W. 6) was going to Sehore with a definite aim of getting his gun licence renewed but for this he would not have been there. Besides this, the appellant Anokhi was facing the prosecution because of his having assaulted the deceased. This shows that the appellant Anokhi had a grudge against the deceased. Ghulu Choukidar (P. W. 6) was going to Sehore with a definite aim of getting his gun licence renewed but for this he would not have been there. It is common knowledge as while going to Court complainants or accused persons visit the Court in the company of their near and dear ones and, therefore, the appellant Anokhi was going, even according to him, accompanied by two persons and other persons were going to attend the Court. Ashta is a convenient motor bus-stand and, therefore, coming of Ghulu Choukidar (P. W. 6) to Ashta and not catching the bus at other station cannot throw doubt on bis presence, more so when the presence of five persons is admitted even by the defence. If the deceased and others had come prepared to pick up a quarrel, it is highly improbable that they would bring with them two minor children and old mother. In the circumstances, we are of the view that this is not a case of sudden quarrel without premeditation. We are of the view that the appellants party was definitely aggressor and was armed with deadly weapons. We are further of the view that the appellants pelted stones at the persons who were running away and injured Nazeer Khan and thereafter they surrounded the deceased and his son. ( 41. ) PICKING up of the gun by the deceased belonging to Ghulu Choukidar (P. W. 6) was definitely after the appellants party pursued fleeing persons and were surrounding them. In these circumstances, the use of the gun by the deceased was justified. The nature of injuries sustained by the deceased and his son Bhairu (P. W. 2) indicated that they were subjected to severe thrashing by a number of persons. As discussed above, the facts and circumstances of this case do not justify that the appellants had any justification for the attack on the ground of right of defence of person. The nature of injuries on the person of the deceased Ghulu indicated that he was subjected to serious assault by sharp edged weapons like Dharia and Farsi and the injuries were sufficient in the ordinary course of nature to cause death. ( 42. The nature of injuries on the person of the deceased Ghulu indicated that he was subjected to serious assault by sharp edged weapons like Dharia and Farsi and the injuries were sufficient in the ordinary course of nature to cause death. ( 42. ) SIMILARLY, Bhairu (P. W. 2) had sustained injuries by sharp edged weapons like Dharia and Farsi on vital parts of the body which has caused serious internal damage and the injuries collectively were sufficient to cause death. In these circumstances, the intention of the appellants was to kill bhairu their enemy. Apparent attack on Bhairu (P. W. 2) also indicated the intention and knowledge to bring their case under section 307 of the Penal code. The prosecution evidence established a concerted and predetermined attack on the two victims. The assembly of the appellants at the flour mill and their coming to the Pir Batau hillock in a body duly armed indicated that they had formed an unlawful assembly with the common object of finishing off the father and the son though by chance son suivived. Besides this, the reports of the Chemical Examiner and the Serologist also show that some of the articles seized from the appellants Sbriram, Narayan and Karansingh were found stained with human blood for which the appellants have offered no explanation. In these circumstances, their convictions under sections 148, 302/149 and 307/149 with sentences thereon are in order and call for no interference. ( 43. ) FOR the reasons given above, the convictions of the ten appellants, siddu, Anokhi, Gangu Balai, Ganga Prasad alias Gangu, Kannu, Narayansingh, shriram, Karansingh, Babu and Umrav Singh, under sections 148, 302/149 and 307/149 of the Penal Code and sentences of one year rigorous imprisonment, life imprisonment and five years rigorous imprisonment to each of them respectively are confirmed. All the sentences shall run concurrently. The appeal fails and is hereby dismissed. Appeal dismissed.