Judgment V. S. KOKJE, J. ( 1 ) RAMJAN Khan, Sultan Khan and Kalu Khan who have been convicted by the learned Sessions Judge, Bikaner for an offence punishable under Section 302/34 of the I. P. C. and who have been sentenced to undergo life imprisonment with Rs. 500/- as fine each have preferred this appeal against their conviction and the sentence. ( 2 ) A first information report was lodged with the police station Chattargarh District Bikaner on 2nd February, 1989 at 5. 30 p. m. Prathvi Khan son of Kalu Khan alleging that he along with his elder brother Yusuf and Karim Khan s/o Dadruddin had come to Chattagarh at about 8. 00 a. m. for selling Gwar which they had transported in a tractor. Ahmed Khan s/o Karim Khan had also come along with them. At about 10. 00 a. m. they reached Chattargarh and unloaded their bags of Gwar at Kherajs Shop and Karim Khans bags at Bhagwandass shop. Yusuf was at Kherajs shop and Prathavi Khan and Karim Khan and Ahmed Khan were on the shop of Bhagwandas. At about 5. 00 p. m. when Prathvi Khan, Karim Khan and Ahmed Khan were going from the shop of Bhagwandas to the tea shop of Kartar for having tea, near Kartars tea shop they saw Yusuf coming from the direction of Kherajs shop towards Them. When Yusuf reached in front of Peeru Khans Flour Mill Ramjan Khan, Sultan Khan s/o Khane Khan, Kalu Khan s/o Karim Khan came running. Ramjan had Barchi with him. Sultan Khan had a Rod of Kassi and Kalu Khan had an axe, Ramjan gave a Barchi blow on the head of Yusuf and said do not leave the enemy alive, kill him. Kalu Khan gave an axe blow from the sharp edged side on the head and Sultan struck with Banda on the shoulder. Yusuf fell down and thereafter Ramjan struck with a Barchi from the sharp edged side on his jaw, Kalu Khan gave an axe blow on his neck from the sharp edged side. Prathvi Khan, Ahmed Khan and Karim Khan rushed to the spot and the accused persons ran away seeing them. Yusuf Khan died on the spot. Yusuf fell down and thereafter Ramjan struck with a Barchi from the sharp edged side on his jaw, Kalu Khan gave an axe blow on his neck from the sharp edged side. Prathvi Khan, Ahmed Khan and Karim Khan rushed to the spot and the accused persons ran away seeing them. Yusuf Khan died on the spot. It was also stated in the first information report that a criminal case for assaulting Ramjans brother was going on against the complainant party and offence was committed because of that enmity. ( 3 ) ON the aforesaid FIR investigations were undertaken and the accused persons were tried on charges under Sections 120b, 302 read with Sec. 34 of the IPC. In their defence accused Ramjan Khan took the plea that on the day of the incident he had gone to the market for purchasing vegetables and he, his nephew Kalu had gone to the vegetable shop of Manak. Prathvi Khan and Yusuf Khan were sitting on the shop. On seeing Them, Prathvi Khan and Yusuf Khan abused them. He was drunk. He told Ramjan that Ramjan had sent him to jail, but they had got themselves released on bail. Ramjan and his nephew Kalu went away from the place without saying anything and went to Gopal Chandaks shop. His Munim Dhanna Dan was there. Ramjan took a paper from him and got an application written against Yusuf from Nijan Kalal, He took that application to Chactargarh police station and gave it to SHO Murlidhar. Murlidhar asked him to wait for some time. Then Prathvi Khan came there and lodged a report that Yusuf had been murdered. On this SHO asked Ramjan Khan to sit at the police station and went away. When he came back he arrested Ramjan Khan. Thus, the defence is of false implication. ( 4 ) ACCUSED Sultan Khan also took the defence of false implication and said that he was not present at the spot at the time of incident. When he was arrested he was hit on the nose by the SHO which resulted in the bleading and his clothes were stained with blood. He stated that SHO did not recover any clothes from him and Danda was not recovered from him. The SHO purchased the Danda from Bazar and showed false recovery. When he was arrested he was hit on the nose by the SHO which resulted in the bleading and his clothes were stained with blood. He stated that SHO did not recover any clothes from him and Danda was not recovered from him. The SHO purchased the Danda from Bazar and showed false recovery. ( 5 ) ACCUSED Kalu Khan took the defence that he and his uncle Ramjan were purchasing vegetables and Prathvi Khan was present at the shop with Yusuf. Yusuf was drunk and he abused them. Then Kalu Khan and his uncle Ramjan went to Chandaks shop. Ramjan got a report written from him and took the report to police station. Kalu Khan remained on Chandaks shop and after some time while going away from there. When he was on the road, Yusuf fired a Pistol from behind at him. At that time Kalu Khan gave an axe blow to the deceased Yusuf and then ran away from the place. ( 6 ) THE learned Session Judge ultimately acquitted all the three of them on charges under Section 120b, IPC but convicted them under Section 302/34, IPC and sentenced them as above. ( 7 ) ACCORDING to FIR version itself Prathvi Khan PW 1 Ahmed Khan PW 2, Karim Khan PW 6 were the eye-witnesses. PW 3 Mohd. was also cited as an eye-witness but he turned hostile. ( 8 ) PW 1 Prathvi Khan repeated the FIR story, and also gave the details of a quarrel which had taken place earlier in the day. He stated that on reaching at Chattargarh at 10 a. m. they unloaded Gwar bags on the shop of Kheraj and then went to the shop of Bhagwan Das to unload Karims Gwar bags. Prathvi Khan, Yusuf and Karim Khan stayed on the shop and Ahmed went for purchasing in the market. At that time on the shop of Bhagwan Das, Ramjan, Sultan Khan and Kalu Khan came and started quarreling with Prathvi Khan, Yusuf and Karim. Manak Chand intervened and asked them not to fight at his shop. Then all the three accused persons went towards bus stand. About an hour thereafter, Yusuf went to the shop of Kheraj for settling his account. At about 4. 30 p. m. Ahmed came back and then Prathvi Khan, Yusuf Khan, Ahmed Khan and Karim went to the teashop of Kartar for having tea. Then all the three accused persons went towards bus stand. About an hour thereafter, Yusuf went to the shop of Kheraj for settling his account. At about 4. 30 p. m. Ahmed came back and then Prathvi Khan, Yusuf Khan, Ahmed Khan and Karim went to the teashop of Kartar for having tea. Thereafter the incident as narrated in the FIR took place. The learned counsel for the appellant pointed out that Prathvi Khan PW 1 was an interested witness being brother of the deceased and being himself a member of rival party. It was contended that the witness who lodged the FIR had deliberately suppressed the earlier quarrel which took place in the earlier part of the day at the shop of Bhagwan Das and there is no reason why such an important fact was not recorded in the FIR, or the statement under Section 161, Cr. P. C. It was also pointed out that the witness has stated in the cross- examination that at about 10 a. m. when he had seen the accused persons at the shop of Bhagwan Das they were armed with the same weapons. It was therefore, contended that if they wanted to assault the complainant party they could have done so then also. ( 9 ) PW 2 Ahmed repeated the FIR Story and supported the prosecution. It was pointed out in his cross-examination that he could not show the length of the Handle of the Barchi and the Handle of the axe. He could not also point out the depth of Barchi or the edge of axe. He could not also give the description of clothes or the colour of the clothes of the accused persons. He could also not describe the foot wear of the accused persons. From this it was contended that the witness was not present on the spot. ( 10 ) PW 6 Karim Khan also supported the prosecution story. He also described the quarrel which took place at the shop of Bhagwan Das. It was also pointed out that this witness has stated that Sultan had hit Yusuf with the Danda while he was standing and did not hit him at all after he fell down, when the other witnesses have stated that Sultan had given the blow after Yusuf fell down. It was also pointed out that this witness has stated that Sultan had hit Yusuf with the Danda while he was standing and did not hit him at all after he fell down, when the other witnesses have stated that Sultan had given the blow after Yusuf fell down. ( 11 ) FROM the assessment of the evidence of all the three eyewitnesses there appears to be nothing which would discredit them. No doubt they are related to the deceased and belong to the complainant party and were hostile to the accused persons to but that by itself would not be sufficient to discredit them. The fact that the earlier quarrel which had taken place on the same day at the shop of Bhagwan Das did not find place in the FIR or in the statements under Section 161, Cr. P. C. would also not be very material because in the previous quarrel no offence had taken place and that only gave a background of the enmity between the parties. The criticism that independent witnesses were not examined is also out of place because the unfortunate fact is that even if many persons had witnessed commission of offence, very few come forward to give evidence. Moreover, the evidence of PW 8 Ram Chandra Godara corroborates the statement as to the injuries caused on the body of the deceased given by these three eye-witnesses. ( 12 ) PW 4 Dhanna Dan, Munim of the one of the shops turned hostile and PW 5 Manaklal owner of the shop of the Bhagwan Das also turned hostile and their testimony is of no use to the prosecution. 12a. As regards recoveries effected at the instance of the accused persons, it was pointed out that the investigation has not been fair. It was pointed out that clothes recovered on 5-2-89 vide Ex. P-27, axe recovered on 7-2-89 vide Ex. P-10, Shoes, Shirt and Chaddar recovered on 5-2-89 vide Ex. P-27, Danda recovered on 7-2-89 vide Ex. P-12, Barchi recovered on 8-2-89 vide Ex. P-14 were all shown in the Malkhana Register to have been deposited at the police station on 3-2-89. We had directed the production or original Malkhana Register and after perusal we find that recoveries effected on 7-2-89 and 8-2-89 have also been shown to have been deposited in the Thana on 5-2-89. P-12, Barchi recovered on 8-2-89 vide Ex. P-14 were all shown in the Malkhana Register to have been deposited at the police station on 3-2-89. We had directed the production or original Malkhana Register and after perusal we find that recoveries effected on 7-2-89 and 8-2-89 have also been shown to have been deposited in the Thana on 5-2-89. However, in our opinion, that will only show that the Malkhana Register has not been properly maintained. It would not lead to a conclusion that the recoveries were fake or fabricated. In any case it would not be sufficient to wash out the eye-witness account given by three witnesses. ( 13 ) THE defence taken by the accused persons does not appear to be plausible. There is no reliable evidence on record to show that any Pistol was found on the spot or it was fired. The defence witnesses examined on this point cannot be said to be reliable. DW 1 Raje Khan stated that he had seen Yusuf firing at Kalu Khan and Kalu Khan giving axe blow to Yusuf. He also stated that he had given this information to the SHO when he had come on the spot and inquired from the people. He also stated that the Pistol was lying there which was also taken away by the police. In his cross-examination he admitted that he did not inform the relatives of Yusuf about this DW 2 Nijammudin was examined on the point of the quarrel which was said to have taken place earlier in the day. ( 14 ) FROM the overall assessment of evidence it is clear that the assault had taken place as given by the eye-witnesses. Now, the question is as to whether there was common intention of all the three accused persons to cause death. About Ramjan Khan and Kalu Khan there is no doubt that they had the intention to kill because they had inflicted injuries by sharp edged weapons on vital parts of the body of the deceased. Sultan Khan was armed with a Danda and he is said to have given Danda blows on the shoulders of the deceased. About Ramjan Khan and Kalu Khan there is no doubt that they had the intention to kill because they had inflicted injuries by sharp edged weapons on vital parts of the body of the deceased. Sultan Khan was armed with a Danda and he is said to have given Danda blows on the shoulders of the deceased. It was, contended that common intention to cause death could not be attributed to him as all the accused persons were said to have been armed with the weapons they were having, through out the day and in the earlier quarrel none of the accused persons had assaulted the deceased. It was contended that the accused persons, therefore, cannot be said to have common intention to cause death right from the beginning. The possibility of the intention, having developed on the spot in the minds of Ramjan and Kalu Khan cannot, therefore, be denied. This argument should not be available to the accused Sultan as from the evidence it is clear that he had participated in the assault after the other two accused had already attacked the deceased with sharp edged weapons. His participation in such a manner would show that he had common intention with the other I two accused persons of causing death of the deceased. ( 15 ) THE appeal, therefore fails and is hereby dismissed. Appeal dismissed.