JUDGMENT 1. - The accused appellants were tried by the learned Additional Sessions Judge, Ratangarh in Sessions Case No. 67/92 for offences under Sections 452, 302, 302/34 and 323 I.PC. The learned Additional Sessions Judge, Ratangarh vide his judgment dated 31.5.1997 convicted and sentenced the accused appellants as under- 1. Bhagwana Ram : 1. Under section 302 I.P.C. To life imprisonment and to pay a fine of Rs. 500/- and in default to further undergo 3 months R.l. 2. Under section 452 I.P.C. To one year R.l. and to pay a fine of Rs. 300/- and in default to further undergo one month R.l. 3. Under section 323 I.P.C. To ope month R.l. and to pay a fine of Rs. 100/- and in default to further undergo 15 days R.l. SITARAM 1. Under section 302/34 I.P.C. To life imprisonment and to pay a fine of Rs. 500/- and in default to further undergo 3 months R.l. 2. Under section 452 I.P.C. To one year R.l. and to pay a fine of Rs. 300/- and in default to further undergo one month R.l. 2. All the sentences were directed to run concurrently. 3. Being aggrieved by their conviction and passing of sentences against them, the accused appellants have preferred this appeal. 4. The prosecution was initiated against the accused on the basis of F.I.R. Ex.P 1 lodged on 15.6.1990 at 11.30 PM. by first informant PW 1 Sita Ram. In the report given to the Police PW. 1 Sita Ram has stated that his neighbour Bhagwana Ram and Sita Ram sons of Peeru Ram reside near his house and they have a dispute regarding land and in this relation there was an altercation in between Bhagwana Ram and his son Sunil Dutt. Sunil Dutt came home and they retired. At about 10.30 PM. in the night accused Bhagwana Ram and Sita Ram entered in their house and hurled abuses. Bhagwana Ram had a knife in his hand and Sita Ram was having a lathi. No sooner they arrived in their Bakhal Sita Ram exhorted kill him then Bhagwana Ram inflicted knife blow which hit on the right wrist of the first informant. Hearing the noise of conflict his son Laxman alias Pradeep came and tried to intervene. Bhagwana Ram gave a knife blow on the abdomen of Laxrnan alias Pradeep. No sooner they arrived in their Bakhal Sita Ram exhorted kill him then Bhagwana Ram inflicted knife blow which hit on the right wrist of the first informant. Hearing the noise of conflict his son Laxman alias Pradeep came and tried to intervene. Bhagwana Ram gave a knife blow on the abdomen of Laxrnan alias Pradeep. Sita Ram caught hold of him His son Sunil Dutt aiso came and intervened who was also given a teeth bite on his right leg by Bhagwana Ram. Maina Devi, Vijay Kumar, Pawan Kumar and Pana Devi etc. also arrived at the scene,of occurrence. The stab wound on the abdomen of Laxman alias. Pradeep resulted into coming out of the instestine from the abdomen. He was taken to the hospital but he died. After lodging of this report the investigation started. A challan was presented against both the accused. Both the accused persons were charge-sheeted for various offences including under Sections 302, 302/34 and 452 I.P.C. 5. The prosecution examined eight witnesses and the defence produced one witness D.W. T Ram Ratan. Out of eight prosecution witnesses three were eye-witnesses, namely, P.W. 1 Sita Ram, P.W. 2 Sunil dutt and PW. 5 Maina Devi. The eye-witness account of the incident was that there was a dispute in between the accused and the complainant party. There was an altercation between Sunil Dutt and the accused at about 10 in the night. After that Sunil Dutt came home and retired. At about 10.30 P.M. in the night the accused came armed and entered into their Bakhal hurling abuses. When the accused entered into their house accused Sita Ram said let they be killed. Accused Bhagwana Ram had a knife by which he inflicted injury on the right wrist of witness Sita Ram. Hearing the noise Laxman alias Pradeep came out and accused Sita Ram said kill him and on this Bhagwana Ram inflicted knife blow on the abodmen of Laxman alias Pradeep. Accused Sita Ram caught hold the witness PW. 1 Sita Ram. P.W. 1 Sita Ram stated that by the injury in the abdomen of Laxman the intestine oozed out. At that time wife of the witness PW. 1, Maina Devi and his son Sunil Dutt also came. When Sunil Dutt came he was also given teeth bite on the thigh by Bhagwana Ram. 1 Sita Ram. P.W. 1 Sita Ram stated that by the injury in the abdomen of Laxman the intestine oozed out. At that time wife of the witness PW. 1, Maina Devi and his son Sunil Dutt also came. When Sunil Dutt came he was also given teeth bite on the thigh by Bhagwana Ram. Other persons also arrived and upon this the accused persons fled away. 6. The cross-examination was directed' on the point that Bhagwana Ram had also sustained injuries. While he was going to his house he sustained those injuries at the hands of Laxman and the witness. Sunil Dutt came with a knife. Sunil Dutt wanted to cause an injury to the accused Bhagwana Ram but incidentally it landed on Laxman and, therefore, the deceased sustained knife injury at the hands of Sunil Dutt. The same has been the stand of Bhagwana Ram in his statement under Section 313 Cr.P.C. Accused Sita Ram pleaded alibi. The defence witness D.W. 1 Ram Ratan who is a resident of Bikaner claims that he had arrived on the date of occurrence. According to this witness on hearing the noise when he came out, he saw Sita Ram, Sunil alongwith two-three persons were beating Bhagwana Ram with lathis. He in his statement has spoken nothing about any person being armed with knife or there being any knife injury. 7. The learned Additional Sessions Judge after scrutinising the evidence of the prosecution came to the conclusion that the evidence of the eye-witnesses has intrinsic worth, they appeared to be truthful witnesses their evidence is natural. The witnesses being inmates of the house are natural witnesses and further witness Sita Ram and Suni dutt are injured witnesses. Therefore, the learned Additional Sessions Judge was of the opinion that they can be relied upon because their presence becomes certified by their having been injuries on their person. Regarding the injuries on the person of accused Bhagwana Ram, the opinion of the learned Additional Sessions Judge was that these injuries were simple in nature and they were on such parts which on the ordinary course of nature could not be seen by the witness therefore, it was not possible to spot them. How those injuries were caused, escaped notice of the eye-witnesses. On this count their testimony cannot be discarded. 8. How those injuries were caused, escaped notice of the eye-witnesses. On this count their testimony cannot be discarded. 8. The learned Additional Sessions Judge was of the opinion that the injuries inflicted by Bhagwana Ram and Sunil Dutt have consistently been deposed by the witnesses and find corroboration from the F.I.R. Learned Additional Sessions Judge also believed that the weapon of offence recovered at the instance of the accused also corroborates the eye-witnesses as the same has been found to be stained with human blood. Learned Additional Sessions Judge found that the offence under Section 452 I.P.C. has also been proved to be made out because the accused had entered into the court yard and the court yard can be said to be part of the premises and, therefore, held the offence under Section 452 I.P.C. proved Learned Additional Sessions Judge has taken support from the medical evidence as well and held that the accused had been guilty of the charges levelled against them. 9. Assailing the judgment of the learned Additional Sessisons. The learned counsel for the appellants stressed that the story of the prosecution is improbable. Once when the altercation had taken place in between the accused and Sunil Dutt then the offence would have taken place at that time only. Saying that the occurrence took place thereafter is an artificiality in the prosecution case. The prosecution has not come up with a true narration of the occurrence. The prosecution has failed to explain as to how the injuries have been sustained by accused Bhagwana Ram. The explanation given by the defence that it was the knife of Sunil Dutt which landed on Laxman alias Pradeep is probablised and, therefore, the prosecution story should be discarded. 10. Learned counsel for the appellants has further stated that the injuries sustained by PW 1 Sita Ram are not sharp edged weapon injuries and, therefore, the prosecution story is untenable. 11. Learned counsel for the appellants has further stressed that when the accused Bhagwana Ram had knife why he would have given a teeth bite to the injured Sunil Dutt He could have caused knife injury plain and straight way. 12. Learned counsel tor the appellants has further stressed that there was no sufficient light for identifying the accused. 13. 11. Learned counsel for the appellants has further stressed that when the accused Bhagwana Ram had knife why he would have given a teeth bite to the injured Sunil Dutt He could have caused knife injury plain and straight way. 12. Learned counsel tor the appellants has further stressed that there was no sufficient light for identifying the accused. 13. Lastly the learned counsel for the appellants has argued that it was only a single blow case and it cannot be said that the accused had intended to cause the death of the deceased Laxman alias Pradeep. 14. Countering the argument of the learned counsel for the appellants the learned Public Prosecutor has urged that it would be wrong to say that mere non-explanation of the injuries of Bhagwana Ram would be enough to discredit the story of the prosecution. Bhagwana Ram had sustained simple injuries and the way Bhagwana Ram had sustained the injuries has been deposed by the defence in two different manners. One is contained in the statement of Bhagwana Ram recorded under Section 313 Cr.P.C. and another is in the statement of D.W 1 Ram Ratan and, therefore, this variance in the defence itself shows that the defence is not certain about the manner of sustenance of injuries by Bhagwana Ram. In any case the injuries are such trifle and at such places that they cannot even be noticed. Bhagwana Ram was not arrested at the scene of occurrence. He was arrested next day after-noon and that being the position he could have sustained the injuries while he was at large. Sustaining of minor injuries cannot vitiate the whole prosecution case based on the testimony of injured eye-witnesses Enmity in between the parties existed. When the accused had chosen to go at night in the house of the complainant and caused injuries with lethal weapon like knife then it cannot be said that the offence of murder is not made out. Causing of teeth bite to Sunil Dutt is not such an incident which can discredit the prosecution case because the assailant had the knife also because it was for a particular person who reacts in the given circumstances. Two different men react differently in the same set of circumstances and, therefore, it cannot be made subject matter for discarding the prosecution case. Two different men react differently in the same set of circumstances and, therefore, it cannot be made subject matter for discarding the prosecution case. The first information report was lodged forthwith and the names of the assailants have been given in the F.I.R. and that being the position the case of the prosecution is clearly made out. 15. We have heard the learned counsel for the appellants as well as the learned Public Prosecutor and have also perused the record. 16. The defence version contained in the statement of D.W. 1 Ram Ratan speaks of assault by Sunil Dutt and Sita Ram alongwith two-three other persons but this witness has not spoken about the presence of Laxman alias Pradeep the deceased. This witness does not say even about the knife being used in the occurrence. The most important part of the prosecution story is missing in the testimony of this witness. Therefore, it cannot be believed that this witness was present at the scene of occurrence because had he been present at the scene of occurrence and have seen the incident then he must have spoken something about the knife and injury to Laxman alias Pradeep and in the face of it, therefore, it cannot be said that there is any truth in the testimony of this witness D.W. 1 Ram Ratan. This witness is not a resident of the place of occurrence but is a resident of Bikaner. According to his own showing he has come to see Sita Ram accused. Therefore, he is a chance witness and nothing turns out in favour of the accused on the basis of the testimony of this witness. 17. The accused in his statement under Section 313 Cr.P.C. has taken a stand while Laxman and he were engaged in fighting with each other Sunil Dutt came with a knife. Sunil Dutt intended to cause knife injury to him but per chance the knife landed on Laxman alias Pradeep. This story does not stand to reason as there is nothing to support this kind of defence. Even the defence witness has taken a different line of defence and, therefore, it only appears to be a thought generated to create some defence. It appears to be far from truth. 18. This story does not stand to reason as there is nothing to support this kind of defence. Even the defence witness has taken a different line of defence and, therefore, it only appears to be a thought generated to create some defence. It appears to be far from truth. 18. The eye-witnesses are related to the deceased and in this back-ground they would be interested in seeing that the real assailants of Laxman alias Pradeep would not be spared. In this back-ground the previous enmity when present requries the court to be cautious enough in scrutinising their testimony. Enmity by nature gives an assurance also that in a situation where there is only one assailant and one injury then not to spare the real assailant and implicate some one falsely. 19. The witnesses and the accused were known to each other and, therefore, there cannot be any question of there being any dispute as regards the identity of the accused. The manner of deposition of all the three eye-witnesses who corroborate each other is consistent, nothing has been brought down in the corss-examination by the defence to shake the testimony of the three eye-witnesses PW. 1 Sita Ram, P.W. 2 Sunil Dutt and P.W. 5 Maina Devi. 20. In the face of the testimony of these three eye-witnesses, it can safely be held that the assailant of Laxman alias Pradeep was Bhagwana Ram. When Bhagwana Ram had caused these injuries at 10.30 in the night after entering into the house of the deceased then it can safely be said that he intended to cause the injury and the result of that injury shows that what intention he had carried along at the time of the incident. It cannot be said that this act of Bhagwana Ram falls within any one of the exceptions of Section 300 I.P.C. so as to bring his act showing that the homicial act would not amount to murder and, therefore, this Court is of the opinion that the trial court has rightly convicted the accused Bhagwana Ram under Section 302 I.P.C. 21. As regards the participation of another accused Sita Ram is concerned, he had come with a lathi. He had caused no injury to the deceased. The only part allegedly played by him is the exhortation. As regards the participation of another accused Sita Ram is concerned, he had come with a lathi. He had caused no injury to the deceased. The only part allegedly played by him is the exhortation. While the parties were inimical and Bhagwana Ram had a grudge against the family of the deceased in this light it cannot be accepted that it was only the exhortation of Sita Ram which prompted Bhagwana Ram to cause the knife injury to Laxman alias Pradeep. Unless it can be definitely said that the assault by Bhagwana Ram was in pursuance of the exhortation given by Sita Ram, it would be difficult to hold that Bhagwana Ram had acted in furtherance of the common intention arrived at between these two accused persons and, therefore, the conviction of the accused Sita Ram under, Section 302 read with Section 34 I.P.C. becomes shaky and, therefore, it would not be safe to sustain the conviction recorded by the learned trial court against Sita Ram for the exhortation made by him. Consequently, it is held that the conviction of Sita Ram under Section 302 read with Section 34 I.P.C. is not sustainable. 22. The argument of the learned counsel for the appellants that the prosecution has not explained the injuries of accused Bhagwana Ram has been rightly dealt with by the learned trial court. The injuries sustained by the accused Bhagwana Ram were minor and at such places that they could not be spoted. There had already been a dispute between Bhagwana Ram and Sunil Dutt. Bhagwana Ram had been at large after this incident and he was arrested next day afternoon and, therefore, the cumulative effect of not explaining the minor injuries of Bhagwana Ram is that no adverse inference can be drawn against the prosecution and nothing turns out in favour of the accused on this count. 23. The doubt sought to be created about the injuries of PW. 1 Sita Ram and P.W. 2 Sunil Dutt is not of substantial nature. The injuries sustained on the wrist by Sita Ram could be a result of brushing of the knife on the wrist and, therefore, it cannot be said that the injury was not with the knife. 23. The doubt sought to be created about the injuries of PW. 1 Sita Ram and P.W. 2 Sunil Dutt is not of substantial nature. The injuries sustained on the wrist by Sita Ram could be a result of brushing of the knife on the wrist and, therefore, it cannot be said that the injury was not with the knife. The argument that when the accused had knife with him, why he would cause a teeth bite injury to Sunil Dutt is also not sustainable as in the ordinary course of human conduct a man reacts differently in different set of circumstances. Having caused knife injury to the deceased the accused must have also lost his mental faculty to further cause knife injury to any one else present in the vicinity and, therefore, it cannot be said as a rule of thumb that he would not have caused teeth bite. Therefore, this part of the defence argument is of no consequence. 24. Learned trial court has convicted both the accused appellants under Section 452 I.P.C. The trial court has held that they have entered into the Bakhal of the complainant party. Bakhal is a part of the house and, therefore, the conviction of the accused under Section 452 I.P.C.is not unjustified. 25. As regards sentence under Section 452 I.P.C. we deem it proper that the period for which the accused Sita Ram had remained in Jail would be sufficient to meet the ends of justice. Therefore, as regards Sita Ram is concerned, his conviction under Section 452 I.P.C. is maintained and he is sentenced to the period already undergone by him. 26. As regards accused Bhagwana Ram since he has been sentenced to imprisonment for life, therefore, the sentence awarded to him under Section 452 I.P.C. is maintained. 27. Accused Bhagwana Ram has also been convicted under Section 323 I.P.C.for causing injuries to P.W. 2 Sunil Dutt. There is nothing to warrant that this conviction is not sustainable and, therefore, his conviction under Section 323 I.P.C. is also maintained. 28. In the result, the appeal of accused Bhagwana Ram is dismissed in its entirety and his conviction and sentence as awarded to him are maintained. 29. As regards the appeal of Sita Ram is concerned, his conviction under Section 302 read with Section 34 I.PC. is set-aside. 28. In the result, the appeal of accused Bhagwana Ram is dismissed in its entirety and his conviction and sentence as awarded to him are maintained. 29. As regards the appeal of Sita Ram is concerned, his conviction under Section 302 read with Section 34 I.PC. is set-aside. However, his conviction under Section 452 I.P.C.is maintained but the sentence awarded to him under Section 452 I.P.C.is altered to the period already undergone by him. Sita Ram is on bail, therefore, his bail bonds shall stand cancelled.Appeal of B Dismissed - Appeal of S Partly Allowed. *******