JUDGMENT 1. - The appellants were tried by the Court of Sessions Judge, Jodhpur for offence under Section 302 read with Section 34 IPC for causing the death of Sesu Giri and accused Jai Ram was also charged under Section 323 IPC. After trial all the three accused persons were convicted under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life and accused Jai Ram was in addition to the above was also convicted under Section 323 IPC and was sentenced to 3 months R.I. 2. Being aggrieved by the judgment of the learned Sessions Judge, Jodhpur dated 30.7.1992 passed in Sessions Case No. 136/91, the present appeal has been preferred by the appellants. 3. The case against the accused was that on 2.6.1992 in the after-noon at about 3.15 p.m. the first informant Mangu Giri alongwith younger brother Sesu Giri was sitting in their field. Sohan Giri, Ganpat Giri were also sitting with them. Om Giri alongwith Jai Ram and Ganga Ram labourers were working in the field. The field of the accused persons was just adjacent to the field of complainants. Om Giri and the labourers were correcting the dividing doli i.e. Wall in the field. There was a Neem tree on the Doli dividing the field and its roots were also being adjusted. At that time accused Chimna Ram, Jai Ram and Bachana Ram came there. Chimna Ram had a Farsi, Bachana Ram had a Kulhari and Jai Ram had a lathi. After arriving at the spot Chimna Ram objected as to why they are cutting the roots of the Neem tree and he asked Om Giri to call his father. Om Giri reached to the place where Sesugiri, Mangugiri, Sohan Giri and Ganpat Giri were sitting and narrated them the version. On this Sesu Giri alongwith other person proceeded to that place. No sooner he reached at the spot all the three accused appellants started assaulting Sesu Giri Chimna Ram with Kasi, Bachana Ram with Kulhari and Jai Ram with Lathi, when Om Giri tried to intervene, he was also assaulted by the appellant Jai Ram. Sesu Giri received a number of injuries. After causing the injuries to the deceased the accused persons ran away towards their house. Sesu Giri received a number of injuries. After causing the injuries to the deceased the accused persons ran away towards their house. The injured Sesu Giri was put in a tractor and was taken to the hospital where, before he could receive any treatment, he succumbed to his injuries. 4. The accused were charge-sheeted and at the trial 14 witnesses were examined by the prosecution. After completion of the trial, the learned Sessions Judge held that the defence of the accused was that it was by accident that the deceased died. In fact Sesu Giri and his companions came armed and they attacked Chimna Ram and during this attack Om Giri wanted to inflict Kulhari injury to Chimna Ram but per chance that fell on Sesu Giri, which resulted in his death. This defence version was not found sustainable by the learned Sessions Judge. 5. The learned trial court found that the eye-witnesses PW 1 Mangu Giri, PW 4 Om Giri, PW 5 Jai Ram and PW 6 Sohan Puri had given a correct account of the incident. Another eye-witness PW 13 Ganpat Giri though turned hostile has not affected the prosecution case. The learned Sessions Judge did not give any credence to the defence version that all the prosecution witnesses belong to one community, therefore, they should not be believed. Learned Sessions Judge had found that the eye-witness account of the incident is correct. 6. The learned Sessions Judge has repelled the story of the defence that the F.I.R., was a post investigation document and the whole investigation should be thrown on that ground. Learned Sessions Judge has found that the prosecution witnesses had said that signatures of other witnesses were obtained on the F.I.R. and the first informant Mangu Giri in his statement also admits that another person accompanying him has been put his signatures but no signatures of any body were found on the F.I.R. except Mangu Giri. Therefore, the F.I.R. has been changed in the present case. Some memos have been prepared even prior to the lodging of the F.I.R. and the same has been admitted by the Investigating Officer. But the learned Sessions Judge has not believed this defence plea and stated that mere absence of the signatures on the F.I.R. was of no consequence. In fact, the F.I.R. was lodged at 5 PM. Some memos have been prepared even prior to the lodging of the F.I.R. and the same has been admitted by the Investigating Officer. But the learned Sessions Judge has not believed this defence plea and stated that mere absence of the signatures on the F.I.R. was of no consequence. In fact, the F.I.R. was lodged at 5 PM. at the police station and thereafter if any other report has been given by the parties then that cannot be said to be an F.I.R. and this has occurred only due to confusion of the witnesses. The basic fibre of the prosecution case was not broken by this event. The prosecution story has remained intact in the eye-witness account of the occurrence. There is no such infirmity which can force the court to discard the eye-witness account of the incident. The learned Sessions Judge has also found that part of the defence improbable wherein it was urged that Om Giri had a Kulhari and wanted to inflict injury to appellant Chimna Ram which per chance hit Sesu Giri and thus, the learned Sessions Judge has convicted the accused persons as aforesaid. 7. Learned counsel for the appellants arguing the appeal before us has urged that the F.I.R. was not prepared at the time alleged by the prosecution and the F.I.R. was not the basis of investigation and it was the out come of the investigation. The F.I.R. being a post investigation document, no credence should be given to the prosecution case. In this regard the learned counsel for the appellants has relied upon Ravindra @ Ravi Bansi Gohar etc. v. State of Maharashtra & Ors. 1998 Cr.L.R. (SC) 618 . 8. Learned counsel for the appellants has further urged that there is no reason why only Sesu Giri alone has been dealt with by the accused. There were so many persons and it was not impossible for the accused to have assaulted only one single person. The prosecution has not given the correct version of the occurrence. The complainants themselves were the aggressors and they wanted the assault the accused because they wanted to take advantage of shifting of the doli, the dividing wall. They had already cut a tree earlier and this time they were bent upon to cut another tree and, therefore, no case under Section 302 IPC is said to be made out against the accused appellants. 9. They had already cut a tree earlier and this time they were bent upon to cut another tree and, therefore, no case under Section 302 IPC is said to be made out against the accused appellants. 9. Learned Public Prosecutor has urged that the defence is making a fanciful argument. There is nothing on the record to suggest that the story of the defence that when Om Giri wanted to hit Chimna Ram then Sesu Giri sustained the injury. It is an imaginative thought. The kind of injuries which have been sustained by the deceased was not possible in the circumstances alleged by the defence. The injuries sustained by the deceased were by both, Sharp edged and blunt weapons. Therefore, it cannot be believed that a single person caused injuries to the deceased i.e. when Om Giri wanted to hit Chimna Ram which resulted injury to Sesu Giri deceased. In fact, by sharp edged and blunt weapon the whole skull and face have been smashed. The doctor has opined that "the death of deceased was resulted due to coma and hemorrhagic shock as a result of head injury and grievous face injuries due to fracture of skull and other bones etc." There were sharp edged and blunt weapons injuries. Therefore, a clear case of such assault which was intended to cause the death of Sesu Giri, is made out against the accused. Simply because the witnesses belong to one community, it cannot be said that they cannot be believed. The witnesses have withstood the test of cross-examination rightly. No contradictions of any kind have been brought about by the defence. 10. We have heard the learned counsel for the appellants as well as the learned Public Prosecutor and have also perused the record. 11. The argument of the learned counsel for the appellants that the F.I.R. is a post investigation document because PW 1 Mangu Giri has admitted that other witness also signed the F.I.R. but whose signatures are not on the F.I.R. cannot go to the root of the matter. Mangu Giri is an illiterate witness and merely on this count his testimony cannot be discarded. What is to be seen is the worth of his testimony. Whether the same stands the judicial scrutiny and can he be termed as a truthful witness ? Mangu Giri is an illiterate witness and merely on this count his testimony cannot be discarded. What is to be seen is the worth of his testimony. Whether the same stands the judicial scrutiny and can he be termed as a truthful witness ? The Supreme Court judgment Ravindra (supra) relied upon by the learned counsel for the appellants though records the finding about F.I.R. but in that case it has also been recorded that the test identification parades were conducted in suspicious circumstances. When the identity of the accused was subject-matter of doubt then in that back-ground a suspicion on the F.I.R. resulted in discarding of the prosecution case. 12. In the instant case, we have to examine whether there is any circumstance existing which creates a doubt on the F.I.R. 13. The only criticism levelled against the F.I.R. is that a few witnesses have said that they have signed the report but there are no signatures on it and the Investigating Officer has admitted that certain Farads were prepared before the lodging of the F.I.R. These circumstances by itself cannot be deemed to be sufficient to make the whole prosecution case as doubtful unless there are coupled with some other circumstances. 14. The incident has been deposed to by the eye-witnesses. One of the eye-witnesses PW 4 Om Giri is an injured witness. A reading of the eye-witness account clearly establishes that there is nothing in their testimony which can either be termed to be improbable or unacceptable. If the eye-witness account is neither improbable nor unacceptable then it was on the defence to show as to on what score they want these eyewitnesses to be disbelieved. No material contradictions have been pointed out from the previous statements of these witnesses so as to term them as to be witnesses who have made improvements. The eye-witnesses are the ones whose presence is normal at the scene of occurrence. PW 4 Om Giri is an injured witness and there is no reason why his testimony should not be believed. If the eye-witness account of the occurrence is accepted then it cannot be said that the defence has succeeded in creating a circumstance whereby the prosecution case can be discarded. 15. Learned counsel for the appellants then urged that no offence under Section 302 IPC is made out against the accused appellants. 16. If the eye-witness account of the occurrence is accepted then it cannot be said that the defence has succeeded in creating a circumstance whereby the prosecution case can be discarded. 15. Learned counsel for the appellants then urged that no offence under Section 302 IPC is made out against the accused appellants. 16. A reading of the eye-witness account of the incident shows that the accused had arrived at the scene of occurrence. They asked PW 4 Om Giri to call his father Sesu Giri and when Sesu Giri arrived at the scene they made the assault. This sequence of events does not appear to be a situation where it can be said that it was an accident which occurred at the spur of the moment. The accused have called the deceased and then made the assault. They had come armed to the place of occurrence and in this back-ground it can safely be said that they have predetermined their act and wanted to assault the deceased in the manner they have predetermined. The nature of the injuries also show that both kind of injuries i.e. by sharp edged and blunt weapons were caused to the deceased. The injuries of both kind by sharp edged and blunt weapon have resulted into fracture of skull bones and bones of other parts of the body. In these circumstances, it cannot be said that the accused have not intended to cause the death of the deceased and it was only an accident which occurred at the spur of the moment. 17. In the result, the conviction and sentence awarded to the accused appellants does not appear to be unreasonable. There is no force in the appeal and the same is, therefore, dismissed.Appeal Dismissed. *******