JUDGMENT 1. - Kalu Ram (PW-3) and deceased Raghuveer were real brothers. Chand Bai and Surji were real sisters. Chand Bai was married to PW-3 and Surji was married to the deceased. Their marriage had taken place about 9-10 years and Surji wife of the deceased died as a result of burning. One Het Ram, her uncle (TAU) had lodged the report (Ex.P.18) in Police Station Tijara, District Alwarand FIR No. 162/89 under Section 302 IPC was registered against the deceased, his father Prabhati and one Kamla. After investigation in that case, a final report No. 853 was submitted on 31.3.1989. 2. Accused-appellant Om Prakash @ Prakash is the real brother of the two sisters Surji Bai and Chand Bai. The case of the prosecution is that in the evening of 7.4.1990, the accused-appellant Om Prakash along with other accused-appellant Hukam Singh, his friend, had come to the house of the deceased Raghuveer. They had taken their meals in the evening and the deceased and the two accused-appellants slept in the same room inside the house. In the night intervening 7th and 8th April, 1990 when the accused-appellants and the deceased are said to be sleeping in the room, of Raghuveer deceased and the other members of the family namely Kalu (PW-3), Mangal (PW-2) and Chand Bai (PW-5) were also sleeping in their respective portion of the house, at about 11 p.m. shrieks were heard coming from inside the house where the deceased Raghuveer was sleeping. Kalu and Mangal Ram went towards that side and saw that both the accused-appellants were armed with knives and were giving blows to the deceased with their knives. They raised an alarm on account of which Khushi Ram (PW-7) and Leela Ram (PW-6) were attracted. However, the accused-persons made their escape. It was seen that the deceased was lying on his cot. A report of the incident was lodged by PW-3 Kalu in Police Station Tijara, where a case No. 68/90 was registered against the two accused persons. 3. PW-11 Jeevan Singh, Station House Officer of the Police Station Kishangarh Bas was on patrolling duty in the night intervening 7-8th April, 1990 along with Head Constable Jaisiram and other Constables and at about 3 a.m. when they were at the Bus Stand, Kishangarh Bas, they saw both the accused appellants and on being checked, it was found that they had no luggage with them. They could not explain their presence at the bus stand at that odd hour of the night. Two knives were recovered from their back pockets of the pant and on interrogation, the Station House Officer came to know about their involvement in a case of Police Station Tijara. They were arrested by Jeevan Singh. Knives were seized and sealed in separate packets. On the information being sent to Police Station Tijara, Narain Singh arrived there and the accused persons were taken to Police Station Tijara and so also the sealed packets of the knives were also taken to the Police Station. They were sent to the Director, Forensic Science Laboratory along with other seized articles and the Director, Forensic Science Laboratory in his report which has not been exhibited and has only been marked as Mark-I-2, found that the knives which were recovered from the accused persons were stained with human blood and the blood group of them was (0). 4. Post mortem was conducted on the dead body of the deceased and after usual investigation, charge sheet was filed against the accused-appellants. They claimed to be tried. After the close of the prosecution witnesses each of the accused-appellants was examined under Section 313 Criminal Procedure Code to explain the circumstances appearing against each of them and the evidence of the prosecution. Each of the accused-appellants stood on a bare plea of denial. They even denied having gone to the house of the deceased. So far as their arrest at the Bus Stand, Kishangarh Bos was concerned, it was given out by them that they were arrested at their house and not at the bus stand, as alleged. The accused persons did not examine any witness in their defence. Learned Additional Sessions Judge, Kishangarh Bas, Alwar, convicted each of the accused appellants under his judgment dated 30.11.91 under Section 302 Indian Penal Code and each of them was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default of payment of fine, to undergo further R.I. for one month. 5. We have heard learned Counsel for the accused-appellants and the learned Additional Public Prosecutor and have been taken through the evidence on record. 6. 1,000/- in default of payment of fine, to undergo further R.I. for one month. 5. We have heard learned Counsel for the accused-appellants and the learned Additional Public Prosecutor and have been taken through the evidence on record. 6. Learned Counsel has contended that the evidence of the eye witnesses cannot be relied upon and even assuming that both the accused-appellants had gone to the house of the deceased, there is no convincing evidence on record that it was the accused-appellants who bad actually caused the death of the deceased. It was further contended by the learned Counsel that there is no material on record that the death of the deceased was instant and that there is the possibility that the occurrence might have taken place in sonic other manner. It has further been contended by the learned Counsel that the doctor has not stated that any of the injuries were sufficient in the ordinary course of nature to cause death and at any rate, it is not a case covered under Section 302 Indian Penal Code but is a case which at best can be covered under Section 304 Indian Penal Code. There is sufficient material on record that the real sister of accused Om Prakash had died unnatural death a few months prior to the incident and the deceased was suspected of having caused her death by burning. We have already said above, that in that FIR, which was lodged by Hetram, a final report has been submitted on 30.10.1989. It will be seen from the reading of the FIR that this appears to be the cause why the accused appellant Om Prakash is said to have taken to his head to put an end of the life of deceased, who as said earlier, was suspected to be accused in that case which was lodged by Hetram in respect of burning of Mst. Surji. The occurrence having taken place in the night intervening 7-8th April, 1990, the only relevant witnesses could have been only those who were sleeping inside the house. Mangal Ram (PW-2) is the brother of the deceased as well as of PW-3 Kaluram and Chand Bai is the real sister of the deceased Surji Bai. Mangal Rani (PW-2) states that he knows both the accused-appellants. Mangal Ram (PW-2) is the brother of the deceased as well as of PW-3 Kaluram and Chand Bai is the real sister of the deceased Surji Bai. Mangal Rani (PW-2) states that he knows both the accused-appellants. They had come to the house, had taken their meals in the evening and both the accused-appellants had slept in the same room in which Raghuveer was sleeping. Mangal and his brother Kalu (PW-3) slept in the separate rooms and their mother was sleeping under a thatched roof. At about 11 in the night, he heard the alarm which was raised by Kalu and his wife Chand Bai and when he came out of his house and went towards the house of Raghuveer, he saw that both the accused-appellants were running away with knives in their hands. He then saw that the deceased was lying with injuries on his abdomen and neck. There was perfused bleeding from the injuries. The accused persons could not be apprehended despite an attempt having been made to trace their tracks. 7. Learned Counsel for the accused-appellants contended that so far as Hukam Singh is concerned, his identity has not been established either from the evidence of the aforesaid eye witness or any other eye witness but it will be seen from the perusal of his statement that not only he identified accused Hukam Singh in his examination-in-chief but even in his cross-examination, he said that he knew accused Hukam Singh prior to the occurrence and the reason to know bim was that he (the witness) used to visit the village of Hukam Singh. Kalu (PW-3) is a person who has lodged the written report (Ex.P.12) which was lodged on 8.4.90 at 3.30 a.m. the occurrence having taken place at about 11 p.m. in the night. The distance of the Police Station is 13 Kms. It can therefore be said that the report was lodged without any delay, in the Police Station and in fact, the case of the prosecution, right from the very beginning was that both the accused-appellants had come to the house, had their meals and caused the death of the deceased. The distance of the Police Station is 13 Kms. It can therefore be said that the report was lodged without any delay, in the Police Station and in fact, the case of the prosecution, right from the very beginning was that both the accused-appellants had come to the house, had their meals and caused the death of the deceased. PW-3 Kalu states that the accused-appellants did sleep in the same room with the deceased and all three of them had talked upto 9 p.m. At about 11 p.m. when he heard the shrieks of Raghuveer, he came out from the house and he and his wife went towards that spot and saw that the accused persons were giving blows with knife to the deceased. The accused persons made their escape. He saw that there was bleeding from the neck and abdomen of Raghuveer. Khushi Ram and Leela Ram had also cone there and he saw that the deceased was lying dead. There was also one belt on his neck on which there was also blood. He admits that there was no relationship with Hukam Singh. No doubt that there are some minor contradictions in the statements recorded under Section 161 Criminal Procedure Code and that recorded in the Court but there is no major contradiction so far as his statement is concerned. He has denied the suggestion that an attempt was made to follow the foot prints of the accused. 8. PW-5 is Chand Bai who is wife of Kaluram and as said earlier, she is the real sister of Surji Bai and as per her statement, she too had gone to the spot on hearing the shrieks and saw that there were injuries by knife on the neck and abdomen of the deceased and both the accused-appellants were having knives in their hands. She raised an alarm which attracted Khushi Ram and Lilaram. She also stated that the accused persons had cone to the house. So far as Hukani Singh appellant is concerned, she states that he belongs to the village of her parents and Hukam Singh used to visit the house because he and her brother Prakash are good friends. 9. She raised an alarm which attracted Khushi Ram and Lilaram. She also stated that the accused persons had cone to the house. So far as Hukani Singh appellant is concerned, she states that he belongs to the village of her parents and Hukam Singh used to visit the house because he and her brother Prakash are good friends. 9. From the above evidence, there can hardly be any dispute that on 7.4.90 both the accused-appellants had gone to the house of the deceased, had their meals, slept in the same room with the deceased, the deceased died at about 11 p.m. on account of the injuries by sharp edged weapon on his neck and abdomen and the accused persons thereafter had made their escape from the scene of occurrence. A look at the post mortem report will show that food material was found in the intestine and therefore, the case of the prosecution that the deceased and the accused persons had taken their meals in the evening also appears to be correct. No doubt, there are some contradictions in the statements of the witnesses as to whether all of them had actually witnessed the accused persons inflicting injuries or had seen the accused persons running away with knives in their hands but after having gone through the statements we find no reason to disbelieve their testimony and it can be said that it were the accused persons who had caused injuries to deceased and the reason appears to be that Surji sister of the accused-appellant Om Prakash, as said above, had died unnatural death and the deceased was suspected of having caused her death by burning, though a final report was submitted in that case in October, 1989, therefore, obviously, the present occurrence took place within five months of the presentation of the final report in the aforesaid case and not filing charge sheet against the deceased. 10. We are therefore of the opinion that the accused-appellants are the authors of the injuries though it cannot be said as to which of the accused-appellant had caused which injury to the deceased. 11. 10. We are therefore of the opinion that the accused-appellants are the authors of the injuries though it cannot be said as to which of the accused-appellant had caused which injury to the deceased. 11. So far as the recovery of knives is concerned, in our opinion, the FSL report was not put to the accused persons in their statements recorded under Section 313 Criminal Procedure Code and even a copy of the FSL report does not appear to have been made available to the accused-appellants. It was only on 11.11.1991 that the Public Prosecutor attached to the Court had submitted the FSL Report in the Court and it was annexed with the file but no copy of the same appears to have been given to the accused-appellants. Therefore, in the absence of any copy of the FSL report having been given to the accused-appellants and in the absence of any question put to the accused persons that as per the report of the FSL, the blood group on the clothes of the deceased as well as the knife said to have been recovered from the accused persons, was found to be the same, the same evidence cannot be relied against the accused persons. That apart, there is no evidence that the knives which were recovered rid sealed remained intact till they reached the FSL and therefore, we will exclude from consideration the aforesaid evidence of the FSL report in respect of the blood group and human blood on the knives. Apart from that, we are of the opinion that from the evidence on record which has been discussed above, it can be said that the accused-appellants are guilty of having caused the death of the deceased. The accused persons even surprisingly did not admit their going to the house of the deceased, they did not explain the circumstances appearing against them and the evidence of the witnesses but this is also a circumstance against the accused persons. 12. Contention of the learned Counsel is that it cannot be said from the statement of the doctor that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death. 12. Contention of the learned Counsel is that it cannot be said from the statement of the doctor that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death. He therefore contends that the offence does not come under any of the clauses of Section 11 Indian Penal Code and therefore, it is a case which falls under Illustration 'C' of Section 11 Indian Penal Code. We fail to understand how that illustration could help the accused appellants and the argument of the learned Counsel that the case falls under Illustration 'C' of Section 11 Indian Penal Code deserves to be rejected. We have already said above about the circumstances that both the accused persons went to the house of the deceased, presumably armed with knives, took meals with him, slept in the same room, caused injuries to him and made their escape and the deceased died as a result of the injuries caused by sharp edged weapon. It can therefore be said that the cases of both the accused persons fall under clause secondly of Section 11 Indian Penal Code. It is not necessary in the case of present nature to prove neither it is possible to prove as to which of the accused person caused which injury, out of the two injuries which were found on the person of the deceased. Under clause secondly, under Exceptions-1 to 5 of Section 11 Indian Penal Code, if an act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, it is murder. The question of the case falling under any of the Exceptions 1 to 5 of Section 11 Indian Penal Code may arise but the learned Counsel for the accused-appellants could not show as to under which of the five Exceptions the case of the accused-appellants falls and unless the case can fall under any of the five Exceptions, it cannot be a culpable homicide not amounting to murder. If we could take a lenient view and if legally, the case could have been covered under any of the Exceptions of Sec300 Indian Penal Code, looking to the age of the accused persons at the time of offence, we might have been inclined to take a lenient view and would have altered the conviction of the appellants from Sections 302 to 304 Indian Penal Code but in view of the facts and circumstances of the case and for the reasons already stated, in our opinion, the case is one under Section 302 Indian Penal Code and the prayer of the learned Counsel does not appeal us.Consequently, we find no force in this appeal. It is hereby dismissed.Appeal dismissed. *******