Judgment Y. R. MEENA, J. ( 1 ) THESE appeals are directed against the judgment of learned Sessions Judge, District Jaipur, whereby he has convicted Ram Chandra for the offence under Section 302 IPC and other accused persons Ranjit Ram, Rameshwar and Jagdish under Section 302 read with Section 341 IPC and sentenced each of them to undergo life imprisonment and also pay fine of Rs. 500/- each, in default of payment of fine to further undergo three months rigorous imprisonment. They were also convicted for the offence under Section 449 IPC and sentenced to undergo ten years rigorous imprisonment. ( 2 ) SINCE both these appeals are arising out of the same judgment for same offence, we dispose of them by this common judgment. ( 3 ) THE brief facts giving rise to these appeals are that on 8. 8. 1985 at about 7. 30 p. m. Nanu Lal (PW 1) lodged a written report Ex. P. 1 in Police Station, Shahpura alleging therein that at about 6. 00 p. m. when he was going from Bagawas village to his well he heard cry from the house of Madan (deceased) therefore, he went running towards the house of Madan and saw that Ram Chandra Sb Bhola Ram, Jagdish Sb Choona Ram, Rameshwar Sb Choona Ram and Ranjit Sb Laxman armed with sword and farsis, were beating Madan (deceased ). When he reached there, Prabhu, Bhanwar and some other persons also came on the spot. The wife of Madan (deceased) PW 6 Gulab was already present in the house and she tried to save her husband. While the wife of Madan tried to save him, they gave beating to her also. It is also alleged that there was previous enmity between the accused and Madan, as Madan has committed murder of son of Ram Chandra accused. When informant tried to save, they threatened him also and then they ran away. On the basis of this report FIR was lodged in Police Station Shahpura and during investigation the post-mortem of deceased Madan was got conducted. Site plan was prepared. Blood stained soil was taken from the spot. Accused appellants were arrested and at their instance sword and farsis were recovered. After investigation challan has been filed and charges were framed against the accused-appellants. Accused-appellants have denied the charges and claimed for trial. Site plan was prepared. Blood stained soil was taken from the spot. Accused appellants were arrested and at their instance sword and farsis were recovered. After investigation challan has been filed and charges were framed against the accused-appellants. Accused-appellants have denied the charges and claimed for trial. ( 4 ) DURING trial prosecution has examined as many as 11 witnesses. The statements of accused- appellants were recorded under. Section 313 Cr. P. C and in defence statements of (DW 1) Hardwari Lal and (DW 2) Satya Narain Sharma have been recorded. After considering the material on record the trial Court came to the conclusion these accused-appellants have committed the murder of deceased Madan. The specific cause of death is asphyxia due to strangulation associated with the injuries over the body of deceased and the overt act of strangulation has been attributed to Ram Chandra. On the basis of material on record the trial Court has convicted and sentenced the accused-appellants as aforesaid. Being dissatisfied with the judgment of the trial Court, the accused-appellants preferred these appeals. ( 5 ) HEARD learned counsel for the accused-appellants Shri Bajwa, learned P. P. Shri Paker Farooq and Sarv Shri Wali and Garg for the complainant. Accused-appellant Ram Chandra has expired in jail. Therefore, his appeal stands abated. Now it has to be considered whether Rameshwar, Jagdish and Ranjit can be convicted for offence under Section 302 read with Section 34 IPC on the basis of the material on record. The submission of Shri Bajwa, learned counsel for the accused-appellants that in the written report the allegation was that the accused-appellants were armed with sword and farsis and were giving blows by these weapons to deceased, but in court they have improved their version and have given inconsistent statements to the extent that Ram Chandra was sitting on the chest of deceased and was pressing the neck of the deceased and other three co-accused were giving farsi blows from back side. Not only some mud was found on the face of the deceased, while the place of incident is a floor in house, therefore, how that mud was found on the face of the deceased. There is no explanation how his face was stained with mud. Not only some mud was found on the face of the deceased, while the place of incident is a floor in house, therefore, how that mud was found on the face of the deceased. There is no explanation how his face was stained with mud. That clearly shows that the incident has not taken place as per the prosecution story and has taken place somewhere also, therefore, no reliance can be placed on the testimony of the eye witnesses. ( 6 ) THE prosecution has examined as many as 10 witnesses; (P W 1) Nanu Lal, (PW 2) Ram Singh, (PW 3) Jagdish Prasad, (PW 4) Gyarsi Lal, (PW 5) Prabhu, (PW 6) Gulab, (PW 7) Ram Dayal, (PW 8) Bhanwar, (PW 9) Babu Lal and (PW 10) Vikram Kumar. ( 7 ) IT is to be seen whether the incident has taken place in the house of Madan as shown in Ex. P. 4 site plan. During investigation, some blood has been recovered from the place shown in the site plan. Dead body was also lying in the hall shown in the site plan. PW 2 Ram Singh and PW 4 Gyarsi Lal are the neighbours of Ram Chandra accused and they deposed that at about 6. 00 p. m. they saw that accused Ram Chandra, Rameshwar, Jagdish and Ranjit armed with sword and farsis coming out of the house of Ram Chandra and were going towards the house of Madan saying that they will kill Madan today. While hearing the cry of PW 6 Smt. Gulab wife of deceased, PW 5 Prabhu, PW 1 Nanu Lal and PW 8 Bhanwar also came in the house of Madan, PW 2 and PW 4 are found not reliable by the trial Court. They saw that accused Ram Chandra was sitting on the chest of deceased and was pressing his neck. PW 1 Nanu Lal and PW 6 Gulab have deposed that the other accused namely Rameshwar, Jagdish and Ranjeet were giving farsi blows from the back side while PW 5 Prabhu and PW 8 Bhanwar have supported the version PW 1 Nanu Lal and PW 6 Gulab, to the extent that Ram Chandra was sitting on the chest and pressing the neck of deceased while Rameshwar and Jagdish were giving farsis blows to deceased from the back side. They do not implicate Ranjeet in the incident. They do not implicate Ranjeet in the incident. ( 8 ) SHRI Bajwa has attacked these witnesses on the ground that in the FIR no witness has stated that Rameshwar, Jagdish and Ranjit have given Farsi blows from the back side nor mentioned anything about pressing of neck of deceased by Ram Chandra nor they explained about the mud of the face of the deceased. ( 9 ) IT is true that the floor of hall shown in Ex. p. 4 is pacca floor but statement of (PW 6) Gulab shows that at the time of incident when the deceased was sitting at place in site-plan taking his food these accused-appellants came armed with sword and farsis. On seeing them deceased ran towards the Saul (room) shown as A in the site-plan and they gave beating in that room and then dragged him and brought at place B in the hall and further gave beating. At both these places blood was found. The room shown as A is having kaccha floor, therefore, mud found on his face, can be stained from place A in the site-plan. ( 10 ) INCIDENT has taken place at about 6. 00 p. m. and if the incident would have taken place somewhere else and dead body was brought to the place shown in the site-plan somebody could have seen it but there is nothing on record regarding it nor any trail of blood was found so that we can have some basis for holding that the incident has taken place somewhere else than the place shown by the prosecution. More so, when the blood is found at two places in the house itself where was the need of shifting the body from one place to other place in the house itself, if it was once brought in the house shown in the site plan. ( 11 ) THE next question is whether the accused-appellants have committed the murder of deceased. The prosecution case is that during investigation they prepared the inquest report. The body of deceased was lying at place B shown in the site plan. Blood was recovered from place A-i and B-1. During post mortem, the following injuries are found on the person of deceased: 1. Rail track bruise 7. 5 x 5 cm. on Rt. arm, upper third lateral side. 2. 2. 5 x i cm. abrasion at Rt. wart. 3. Blood was recovered from place A-i and B-1. During post mortem, the following injuries are found on the person of deceased: 1. Rail track bruise 7. 5 x 5 cm. on Rt. arm, upper third lateral side. 2. 2. 5 x i cm. abrasion at Rt. wart. 3. Abrasion 10 cm. x 1 cm. at Rt. darum of fore arm. 4. Abrasion (multiple) 2 cm. x 2 cm. at Rt. elbow joint. 5. Stenus of clotted blood at Rt. palm. 6. Multiple abrasion on 2 x 1 cm. at Rt. shoulder. 7. 3 x 2 cm. laic. wound at Rt. shoulder. 8. Multiple tiny abrasions at Rt. side of neck. 9. 3 x 2. 5 cm. bruise at Rt. Peitoral Region. 10. 12. 5 x 5 cm. bruise across Rt. Peitoral region. 11. Nostrils (born) C discharge of mud mixed C blood. 12. Mouth C mud mixed with burrel discharge out. 13. Multiple 5 x 2 cm. bruise at chicks, temporal region Rt. side and left temporal region. 14. 2 x 2 x 1 cm. incision cut at left sipra orbital region. 15. 2 x 2 x 1 cm. incision cut at left temporal region. 16. 4 x 3 x 2 cm. incision cut at left sipra orbital region. 17. Multiple 5 x 2 cm. bruise at left elbow left arm. 18. 12 x 3 cm. bruise (2) at left mid axillary line. 19. 12. 5 x 5 cm. bruise at left mid clavicular line. 20. 15 x 5 cm. bruise at Rt. mid clavicular region. 21. 10 x 5 cm. (3) bruise at lower part of Rt. side of chest. 22. 15 x 5 cm. (2) bruise at Rt. gluteal region extending to thigh. 23. 2 x 2 cm. laic wound at Rt. leg below knee. 24. 2 x 1 cm. abrasion at Rt. darum of foot. 25. 2 x 1 cm. abrasion at left knee joint. 26. 3 x 2 x 2 cm. incise cut at left mid of leg. Most of them are bruises and lacerated wounds and some cut wounds were also found on the person of the deceased. In support of prosecution story the prosecution has examined (PW 2) Ram Singh and (PW 4) Gyarsi Lal. abrasion at left knee joint. 26. 3 x 2 x 2 cm. incise cut at left mid of leg. Most of them are bruises and lacerated wounds and some cut wounds were also found on the person of the deceased. In support of prosecution story the prosecution has examined (PW 2) Ram Singh and (PW 4) Gyarsi Lal. They are the, neighbours of accused Ram Chandra and they deposed that they saw the accused-appellants coming out from the house of Ram Chandra armed with sword and farsis and they were going towards the house of deceased saying that today they will kill Madan. (PW 1) Madan Lal who is an informant and eye-witness has stated in the court that while he was going from his village Bagawas to his well he heard cries of (PW 6) Gulab wife of deceased. He went running towards the house of deceased and saw that accused Ram Chandra was sitting on the chest of deceased and was pressing his neck and accused-appellants Rameshwar, Jagdish and Ranjeet were giving farsi blows to the deceased. At that time (PW 5) Prabhu and (PW 8) Bhanwar also came on the spot. (PW 6) Gulab is wife of deceased. She deposed that at about 6. 00 p. m. while deceased was taking food at place G IT she was sitting at place TG2 shown in the site plan, they saw the accusedappellants, coming in their house, armed with sword and farsis. Deceased being afraid of them, ran towards place A the room shown in the site plan. They followed the deceased, caught hold of him and gave beating in room at place Al and they brought him to place B I in the hall and again gave beating. While they were beating, Ram Chandra accused sat on the chest of the deceased and pressed his neck. He died on the spot. The other eye witnesses Prabhu (PW 5) and Bhanwar (PW 8) support the version of (PW 1) Nanu and (PW 6) Gulab to the extent that Ram Chandra was sitting on the chest of Madan and pressing his neck. Accused-appellants Rameshwar and Jagdish have given farsi blows from back side. He died on the spot. The other eye witnesses Prabhu (PW 5) and Bhanwar (PW 8) support the version of (PW 1) Nanu and (PW 6) Gulab to the extent that Ram Chandra was sitting on the chest of Madan and pressing his neck. Accused-appellants Rameshwar and Jagdish have given farsi blows from back side. Shri Bajwa has attacked on the testimony of these eye witnesses on the ground that in FIR nothing has been said about pressing of neck of deceased by Ram Chandra nor they said that the farsi blows were given, from the back side, to the deceased. They have improved their version only after post mortem report. ( 12 ) IT is true that in FIR nothing has been said whether farsi blows were given by the back side or from front side but in the statement in court these eye-witnesses stated that farsi blows were given from the back side. It is not necessary that the detailed version be given in the FIR but when the sword and farsi were recovered at the instance of accused-appellants and sword was found stained with human blood why the recovery be doubted. More so, it is evident from the injuries referred above that most of the injuries are lacerated wounds and bruises. It can be the result of using farsis from the back side and there are some cut wounds also, they could be caused by sword which was with Ram Chandra. All injuries are ante-mortem. ( 13 ) SHRI Bajwa further contended that the statement of PW 6 Gulab does not find corroboration from the medical report. She stated in the court that while deceased was taking food, these persons came armed with deadly weapons and attacked on him. But during post mortem, the stomach was found empty. Even if we accept that stomach of deceased was found empty on postmortem, but if we read- the statement of PW 6 Gulab carefully it is clear that she has stated that while deceased was taking food, these accused-appellants came and attacked on him, but she never stated that deceased had taken food. If deceased had just started his food, how anything can be found in his stomach. ( 14 ) THE incident took place at about 6. 00 p. m. The FIR has been lodged at 7. If deceased had just started his food, how anything can be found in his stomach. ( 14 ) THE incident took place at about 6. 00 p. m. The FIR has been lodged at 7. 30 p. m. i. e. just after 1-1/2 hours from the time of incident. The place of incident is 12 kilometers away from the Police Station. When the FIR has been lodged within 1-1/2 hours, it cannot be said that the story has been concocted by the prosecution. The name of accused-appellants found place in FIR. The recovery of sword from Ram Chandra and farsis from Rameshwar and Jagdish has been proved. The sword was stained with human blood and there are 3-4 cut wounds found on the person of the deceased. Therefore, use of these weapons also found support by the medical report. ( 15 ) THE next important aspect is motive. Though to prove motive in all the murder cases is not necessary but it gives strength to the case of the prosecution, if proved. PW 6 Gulab wife of the deceased had admitted in her statement that her husband was facing trial for the murder of son of Ram Chandra as one of the accused. When deceased had killed son of Ram Chandra accused, naturally deceased and Ram Chandra were enemies of each other and Jagdish and Rameshwar being relatives of Ram Chandra were inimical towards deceased Madan, therefore, no doubt remains that accused Ram Chandra had a motive behind the murder of Madan. ( 16 ) SHRI Bajwa further argued that two witnesses of prosecution namely PW 2 Ram Singh and PW 4 Gyarsi Lal have not been believed. Even PW 5 Prabhu and PW 8 Bhanwar have not supported the case of the prosecution in court to the extent that Ranjit has taken part in the incident. They were also not reliable witnesses and on the testimony of such witnesses, accused-appellants should not be convicted. ( 17 ) PW 2 Ram Singh and PW 4 Gyarsilal who are neighbours of accused Ram Chandra deposed that they saw accused-appellants armed with deadly weapons, going towards the house of Madan saying that they will kill Madan today, but in spite of that neither they followed these accusedappellants nor they called anybody and raise the voice against the assailants. Their conduct is not natural and in normal course if they would have seen the accused-appellants armed with deadly weapons saying that they are going to kill deceased, they would have certainly raised the voice and at least followed them to save the deceased when the deceased was in their relation. Considering their abnormal conduct, no reliance can be placed on the testimony of these two witnesses. Other four eye witnesses namely PW 1 Nanu Lal, PW 5 Prabhu, PW 6 Gulab and PW 8 Bhanwar are close relations of deceased but considering the time of the incident and the fact that even Gulab sustained injuries while she intervened, then testimony cannot be disbelieved specially when the recoveries of weapons are there and sword so recovered is found stained with human blood. ( 18 ) SHRI Bajwa contended that the eye-witnesses are not only the close relations but they have even changed the prosecution story. In FIR nothing has been said about the pressing of neck of deceased by Ram Chandra nor they said that the farsis were used from the back side. It is true that testimony of close relations should be examined with care and caution but that cannot be thrown out of beard only on the ground that they are close relations. It is also true that nothing has been said in FIR from which side the farsis were used but in FIR it is not necessary to give all details of the incident. Mere information of crime is enough. If the witnesses explain in court in detail, there is nothing wrong in it, it is a natural course. They are free to give full details of the incident in the court. Considering the recoveries and the statements of PW 1 Nanu Lal, PW 5 Prabhu, PW 6 Gulab and PW 8 Bhanwar which are consistent from the very beginning, they support the case of prosecution that accused Ram Chandra, Rameshwar and Jagdish have given beating to deceased and Ram Chandra has pressed neck of the deceased. Therefore, we find no reason to disbelieve the testimony of PW 1 Nanu Lal, PW 5 Prabhu, PW 6 Gulab and PW 8 Bhanwar. Therefore, the prosecution has proved its case beyond reasonable doubt that accused Ram Chandra, Rameshwar and Jagdish have taken part in the incident. ( 19 ) THE case of Ranjit accused stands on a different footing. Therefore, we find no reason to disbelieve the testimony of PW 1 Nanu Lal, PW 5 Prabhu, PW 6 Gulab and PW 8 Bhanwar. Therefore, the prosecution has proved its case beyond reasonable doubt that accused Ram Chandra, Rameshwar and Jagdish have taken part in the incident. ( 19 ) THE case of Ranjit accused stands on a different footing. Ranjit is not in relation of Ram Chandra. If son of Ram Chandra has been killed by the deceased, why Ranjit will involve himself in murder case along with Ram Chandra. No material has been brought on record regarding any motive of Ranjit behind murder. On the contrary, PW 6 Gulab wife of deceased deposed that her husband Madan was facing sessions trial in the case of the murder of the son of Ram Chandra and Ranjit was a witness in that case. Eye-witness PW 5 Prabhu and PW 8 Bhanwar have categorically denied the presence of accused Ranjit. Not only that, even he has taken the plea of alibi that he was serving in Berath and his landlord appeared in court who stated that on the day of incident, he was ill and staying at house. The recovery of farsi from Ranjit has also not been proved. Therefore, we are of the view that when Ranjit has no enmity with the deceased but he was witness in the sessions case which was being faced by the deceased, there is every possibility that he has been falsely implicated. ( 20 ) WHETHER Jagdish and Rameshwar had common intention with Rain Chandra to kill Madan? The post mortem has been conducted by Dr. J. P. Tambi. The post mortem report is Ex. p. 22. Dr. Tambi has opined that cause of death is asphyxia due to strangulation associated with the injuries. The doctor found as many as 26 injuries while conducting the post-mortem. ( 21 ) DR. Tambi expired during trial and could not be examined in trial court. Instead of him the court has examined Dr. Pathak as CW 1. Dr. Pathak has supported the post-mortem report and admits that the injuries on the body independently were not responsible for the death of Madan. The eye-witnesses are consistent on the fact that Ram Chandra was sitting at the chest of deceased and pressing his neck. Instead of him the court has examined Dr. Pathak as CW 1. Dr. Pathak has supported the post-mortem report and admits that the injuries on the body independently were not responsible for the death of Madan. The eye-witnesses are consistent on the fact that Ram Chandra was sitting at the chest of deceased and pressing his neck. He also gave 2- 3 swordts mutha (hilt) blows at the neck of deceased while Jagdish and Rameshwar have given farsi blows from back side. On post-mortem, 26 injuries were found on the person of deceased. Out of those injuries; 4 injuries are by sharp- edged weapon. Admittedly farsi blows are from back side of farsi. When the accused-appellants Rameshwar and Jagdish have used farsis from back side, no interference can be drawn that they had any intention to kill Madan. The pressing of neck of deceased is attributed to Ram Chandra and it is the main cause of death of deceased. Other evidence for intention is the statements of PW 2 Ram Singh and PW 4 Gyarsilal who are the neighbours of Ram Chandra but their testimony has not been believed. There is no other evidence on record which supports the case of the prosecution that accused Jagdish and Rameshwar had any common intention with Ram Chandra to commit murder of Madan. Therefore, in our view, the trial court has wrongly convicted accused Rameshwar and Jagdish for the offence under Section 302 read with Sec. 34 IPC. ( 22 ) THE prosecution has not proved the case against Ranjeet beyond reasonable doubt. Hence he is entitled to acquittal. However, the prosecution has been able to prove that the injuries on the deceased were caused by Rameshwar and Jagdish by blunt side of the weapon and some of these injuries are also grievous in nature. Though the weapons were sharp edged but the sharp side of the weapon was not used, hence Rameshwar and Jagdish can be convicted for the offence under section 325 IPC. Their conviction for the offences under Section 302 read with Section 34 and Section 449 IPC has to be set aside. ( 23 ) IN the result: The appeal of accused-appellant Ranjeet is allowed. We acquit him and set aside his conviction and sentence. He is on bail. He need not surrender. His bail bonds shall stand discharged. Their conviction for the offences under Section 302 read with Section 34 and Section 449 IPC has to be set aside. ( 23 ) IN the result: The appeal of accused-appellant Ranjeet is allowed. We acquit him and set aside his conviction and sentence. He is on bail. He need not surrender. His bail bonds shall stand discharged. The appeal of accused-appellant Ram Chandra stands abated, as he has died. The appeal of accused-appellants Rameshwar and Jagdish is partly allowed. Their conviction and sentence for the offence under Section 302 read with Sections 34 and 449 IPC are set aside. Instead we convict them for the offence under Section 325 IPC and sentence them to undergo three years rigorous imprisonment and a fine of Rs. 500/- each. In default of payment of fine they shall undergo rigorous imprisonment for one month each. They are on bail and they should surrender before the trial court to serve out the sentence passed above. In case they fail to surrender within 30 days, the trial court shall issue arrest warrants against them to serve out their sentence for the offence under Section 325 IPC passed above. Appeal partly allowed.