R. D. SHUKLA, J. ( 1 ) THIS appeal is directed against the judgment and order dated 4. 2. 88 of the jjjrd Addi. Sessions Judge, Alirajpur passed in S. T. No. 374/87 whereby the accused-appellants have been convicted under Section 302/34 of I. P. C. for having committed murder of Munsingh on 8. 7. 87 in village Koriyapan and have been sentenced to imprisonment for life. ( 2 ) THE brief history of the case is that the accused persons are brothers. The cattles belonging to them had trespassed in the crop grown by deceased Munsingh. There was some altercation between the accused persons on the one hand and deceased Munsingh on the other hand. ( 3 ) ACCUSED Najariya came in the night of 8. 7,87 at the house of deceased Munsigh and persuade him to go along with him on the pretext that he is being called by Bachchu. P. W. 2 Pagalibai requested her husband deceased not to go along with them but without expecting any misde meanour deceased accompanied. On reaching in front of the house of the accused persons, deceased Munsingh was caught hold by accused Nanboo. He took the hairs of deceased in his hand and thereafter accused Najariya caused injuries by means of Phalia. Deceased Munsingh raised alarm. Pagalibai (P. W. 2) wife of deceased and Shaitan (P. W. 7) son of deceased went to the spot They saw accused Najariya causing injuries by means of Phalia and further saw accused Nanboo who had held the hairs of deceased in his hand. Pagali Bai and Shaitan also raised alarm. Bachchu and Naharsingh also came on the spot. They saw both the accused committing the crime. The matter was reported to Rupa Chowkidar (P. W. 5) and Nagarsingh (PW. 4) in grant of the night. They also came on the spot and saw the deceased lying in the house of accused persons. ( 4 ) THE matter was reported by Shaitan vide Ex. P110 on the next day in Police Station Bhabra. The same was taken down by Mangilal, Sub-inspector, who registered the offence, visited the site, prepared site-map Ex. P/3 and inquest report Ex. P/6. The stained and unstained earth and the scrappings of one Sagon piller were seized vide Ex. P14. The dead-body of Munsingh was sent for post-mortem with requisition for the same. The same was taken down by Mangilal, Sub-inspector, who registered the offence, visited the site, prepared site-map Ex. P/3 and inquest report Ex. P/6. The stained and unstained earth and the scrappings of one Sagon piller were seized vide Ex. P14. The dead-body of Munsingh was sent for post-mortem with requisition for the same. The clothes of deceased were also received from the hospital. The same were also seized. ( 5 ) DURING the investigation on 17. 7. 87 one Phalia was seized at the instance of Najariya vide Ex. P/9. P. W. 1 Dr. Mohd. Arif Khan conducted autopsy on the body of Munsingh and found the following injuries.-External Injuries: (i) Incised wound 1 x 1/2" cutting the bone on root of nose. (ii) Incised wound 8" x 1 x 1 cutting the eye ball and temporal bone of skull on right side extending from right eye to occipital region of scalp also cutting the right ear. (iii) Incised wound 5 x 1 x 1 on right side extending from 1/2 below lobule of ear up to posterior aspect of neck. (iv) Incised wound 311 x 1 x 1 cutting the lower joint extending from angle of mandible to upper lip on right side of face. (v) Incised wound 4 x 1/2 x on anterior aspect of neck. (vi) Incised wound 5x 3x 311 cut throat on anterior aspect of neck above the level of tlyroid prominence oesophagus larynx are cut. (vii) Incised wound 31/2' x 2x 1 on anterior aspect of right upper arm upper 113rd region. (viii) Incised wound x deep to bone cutting head of humerous and assermion of scapula. (ix) Incised wound 3 x 1 x 1 on posterior aspect of neck. (x) Incised wound 1 x 1/2 x 1/2 on scalp occipital region in middle. (xi) Incised wound 1 x 1/211 x 1/2 on scalp occipital region left side. (xii) Incised wound 1 x x on left side frontal region. (xiii) Incised wound 21/2' x 1 X left side frontal region. On Dissection: - On dissecting the scalp and skull. (i) Cephal Haematoma on left side fronto parietal region. (ii) Incised wound 1" x 1/2 x 1" on parietal region of right cerebral hemisphere. (iii) Incised wound 11/2 x 1/2' x 1/2 on frontal region of left cerebral hemisphere. (iv) Extradural hematoma 3 x 3 on left cerebral hemisphere. On Dissection: - On dissecting the scalp and skull. (i) Cephal Haematoma on left side fronto parietal region. (ii) Incised wound 1" x 1/2 x 1" on parietal region of right cerebral hemisphere. (iii) Incised wound 11/2 x 1/2' x 1/2 on frontal region of left cerebral hemisphere. (iv) Extradural hematoma 3 x 3 on left cerebral hemisphere. (v) Extradural haematoma 3 x 3 on right cerebral hemisphere. ( 6 ) THE articles seized during investigation i. e. stained and unstained earth scrapping of wood, Phalia and clothes of the deceased were sent for chemical examination. All of them except control earth were found stained with blood. ( 7 ) AFTER investigation the challan against the accused-appellants was filed. The same was committed to the court of Sessions in due course. ( 8 ) THE accused-appellants abjured the guilt and pleaded that they have been falsely implicated due to animosity. Najariya has pleaded that he was not present in the village and had gone to Udaipur. ( 9 ) LEARNED trial Judge has convicted and sentenced the accused persons. Hence this appeal. ( 10 ) THE contention of the learned counsel for the appellants is that the witnesses are near relations of the deceased and therefore they are not reliable. It has further been contended that the incident happened in front of the house of accused persons it must have preceded with some altercation. ( 11 ) AS against it learned counsel for the respondent State has submitted that the eye-witnesses of the incident stand corroborated from the other witnesses of the village and further stands corroborated from the F. I. R. and the medical evidence. ( 12 ) P. W. 2 Pagalibai while supporting the story of the prosecution stated that accused Nazariya took her husband to his house, she asked her husband not to go but her husband accompanied Najariya. After some time she heard the screams of her husband and therefore she went along with her son to the house of the accused. There she saw accused Nanboo holding hairs of her husband in his hand and accused Najariya was causing injuries by Phalia. They also raised alarm. Thereafter Naharsingh and Bachchu came on the spot. Accused left the place after arrival of the witnesses. P. W. 7 Shaitan is also an eye-witness of the incident. He has also given a similar statement. There she saw accused Nanboo holding hairs of her husband in his hand and accused Najariya was causing injuries by Phalia. They also raised alarm. Thereafter Naharsingh and Bachchu came on the spot. Accused left the place after arrival of the witnesses. P. W. 7 Shaitan is also an eye-witness of the incident. He has also given a similar statement. Both of them have been cross-examined but nothing substantial excepting this that P. W. 2 Pagalibai is the wife and P. W. 7 Shaitan is the son of deceased could be brought out. These witnesses cannot be disbelieved merely on the ground that they are the near relation of the deceased Munsingh. ( 13 ) P. W. 4 Nagarsingh is the village headman. He has corroborated the story and has stated that Shaitan and Naharsingh (P. W. 3) came to him in the night and informed that accused Nanboo and Najariya have killed deceased Munsingh (father of Shaitan ). He went in front of the house of the accused persons. There he found dead-body of Munsingh. Pagalibai P. W. 2 was also present there. ( 14 ) P. W. 5 Rupa Chowkidar has also corroborated the story and stated that Shaitan along with Naharsingh and Bachchu came to him and informed that both the accused-persons have killed his father. He also went on the spot and found dead-body of Munsingh with injuries on his body. Pagalibai was also present there. ( 15 ) P. W. 7 Shaitan has further stated that he reported the matter to the police on the next day. The same has been proved by P. W. 6 Mangilal sub-inspector. P. W. 5 Rupa has also supported the version of Shaitan as he has accompanied P. W. 7 Shaitan up to the Police Station. ( 16 ) THE matter was reported to the Police next day at about 8. 00 A. M. The Police station is situated nearly 8 kms. from the place of incident. ( 17 ) LEARNED counsel for the appellant has submitted that F. I. R. is delayed as the matter could be reported in the night itself. Prosecution witnesses have very clearly stated that it is unsafe to walk during the night and, therefore, came in the morning and reported the matter to police. from the place of incident. ( 17 ) LEARNED counsel for the appellant has submitted that F. I. R. is delayed as the matter could be reported in the night itself. Prosecution witnesses have very clearly stated that it is unsafe to walk during the night and, therefore, came in the morning and reported the matter to police. Learned Trial Judge also discussed the matter and has observed that it was unsafe to walk in the night in that area. Thus, in our opinion, it cannot be said that the F. I. R. is delayed in any way. ( 18 ) THE prosecution witnesses especially Pagalibai (PW. 2) and Shaitan (PW. 7) have further been corroborated from the evidence of P. W. I Dr. Mohd. Arif Khan. ( 19 ) IT may also be observed here that nearly 13 incised wounds were caused on the body of deceased. It must have taken some time. The distance between the house of accused and deceased was nearly 60 to 70 paces and, therefore, the prosecution witnesses Pagalibai and Shaitan could very easily reach the spot while Munsingh was being given Phalia strokes. ( 20 ) IN fact the actual murder has been committed by Najariya. As per prosecutions story Nanboo has caught hold the deceased Munsingh by hairs. Causing of 13 injuries in that situation does not appear to be probable. Nanboo may have started assault by catching the hairs of the deceased and may have shared the intention of causing injuries by means of dangerous weapon. But subsequent Phalia strokes must have been given by accused Najariya after Nanboo had left the deceased. Therefore in our opinion, Nanboo can be held guilty only for sharing common intentions of causing grievous injuries by means of dangerous weapon and not for murder, as it is difficult to discern as to which fatal blow was given is the last. As such the conviction of accused Najariya appears to be proper but Nanboo deserves to be acquitted of the offence punishable u/s 302 r/w 34 of I. P. C. and is liable to be convicted under Section 326 read with 34 of I. P. C. ( 21 ) NOW so far as the sentence is concerned, Najariya has rightly been sentenced to imprisonment for life. Nanboo was also arrested immediately after the incident. It appears he is in jail right from 17. 7. Nanboo was also arrested immediately after the incident. It appears he is in jail right from 17. 7. 87 till date. Thus, he has suffered incarceration of nearly six years and eight months, which is sufficient punishment for the offence committed by him. ( 22 ) AS a result the appeal filed by Najariya fails and his conviction under Section 302 and sentence for imprisonment of life is maintained and his appeal is dispensed in consequence thereof. ( 23 ) SO far as accused Nanboo is concerned his appeal succeed. He is acquitted of the offence u/s. 302 nw. 34 of I. P. C. and is convicted under Sections 326 nw 34 of I. P. C. and is sentenced to imprisonment for the period already under gone (i. e. nearly six years and 8 months ). He be set at liberty forthwith if not required in connection with any other case. Appeal partly allowed against A2. .