Y. R. TRIPATHI, J. This appeal arises out of the judgment and order dated 25-6-1985 passed in S. T. No. 361/m of 1984 by Sri O. P. Garg, the then VIth Additional Sessions Judge, Kanpur convicting and sentencing the appellants on different counts. 2. Appellant Ajay Kumar Dubey on his conviction under Sections 302 IPC and 323 IPC read with Section 34 IPC has been sentenced to undergo imprisonment for life and three months simple imprisonment respectively. Appellant Sanjay Kumar on his conviction under Sections 302 IPC read with Section 34 IPC and 323 IPC has been sentenced to undergo imprisonment for life and three months simple imprisonment respectively and appellant Chandra Bhan on his conviction under Sections 302 IPC read with Section 34 IPC and 323 IPC read with Section 34 IPC has been sentenced to undergo imprisonment for life and three months simple imprisonment respectively. 3. The prosecution case as unfolded in FIR and evidence is that the deceased Nirmal Kumar Srivastava was the real brother of Bimal Kumar Srivastava, PW-1. Nirmal Kumar Srivastava resided in House No. 122/626 in mohalla Shashtri Nagar, P. S. Kakadeo of District Kanpur. It is alleged that on 4-7-1984 around 8. 30 p. m. the informant alongwith his brother Nirmal Kumar was going to market to purchase vegetables and when they reached in front of the Punjab National Bank one Mahesh Kumar alias Raju Mishra, a friend of the deceased met them and started talking with Nirmal Kumar Srivastava. In the meantime, the appellants Ajay Kumar Dubey Chandra Bhan, both real brothers and Sanjay Kumar their friend, appeared there. Ajay Kumar Dubey pointing towards the deceased remarked that he poses himself to be a great ruffian. Appellant Chandra Bhan in the meantime exhorted Ajay Kumar to teach the deceased a lesson, saying mar do sale ko whereupon Ajay Kumar whipped out a knife from the fold of his pant and dealt several blows to Nirmal Kumar, with it. Appellant Sanjay Kumar Dubey, who had a hockey stick with him also assaulted Nirmal Kumar, Bimal Kumar Srivastava and Raju Mishra intervened raising an alarm and tried to save Nirmal Kumar whereupon Sanjay Kumar dealt a blow to the informant also from the hockey stick which he was wielding at that time. Nirmal Kumar on sustaining his injuries ran towards South West and fell down on the ground. Nirmal Kumar on sustaining his injuries ran towards South West and fell down on the ground. Several persons of the vicinity attracted on the scene of the incident are said to have witnessed the occurrence. The younger brother of the deceased Manoj Kumar P. W. 2 who resides in a house situated nearby also saw the occurrence from the chhajja of his house. On arrival of the witnesses, the accused ran away towards Kanhaiya Hotel holding out threats. The informant rushed his injured brother to Helet Hospital on a Riksha where the doctor on duty declared Nirmal Kumar Srivastava as brought dead. Leaving the dead-body of his deceased brother in the hospital premises the informant went to P. S. Kakadeo which lies at a distance of 2 kms from the scene of the incident and made over a written report Ext. Ka-1 there on the basis of which, a chick FIr Ext. Ka-12 was prepared by constable clerk Ram Babu PW-8 who also registered a case vide G. D. Ext. Ka- 13, S. I. Laxmi Narain Yadav PW-6 then posted at P. S. Kakadeo held inquest on the dead-body of the deceased on 5-7-1984 at 10. 30 a. m. at the mortuary and completed other formalities. The post-mortem examination on the dead-body was conducted by Dr. R. P. Bajpai PW- 4, who on internal examination found thorax walls of the deceased ruptured and his left pleura punctured. About one litre blood was found present in left pleura cavity. Dr. Bajpai also found the pericardium and heart of the deceased punctured. According to him the deceased was of average built, his eyes were partially open, mouth closed and froth coming out of nostrils. Rigour mortis was found present in both the extremities. Post- mortem stainings were present over whole of the buttock and thigh. The abdomen was distended. In the opinion of Dr. Bajpai, the death of the deceased had occurred due to shock and haemorrhage as a result of his ante-mortem injuries. 4. It appears that the police of P. S. Kakadeo had referred informant Bimal Kumar also for his medical examination which was conducted by Dr. G. K. Tiwari PW-3 then posted as Medical Officer in L. L. R. Hospital, Kanpur, who examined him at 10. 48 p. m. on the very day of the incident and found a vertical red contusion of the size of 3 cm. G. K. Tiwari PW-3 then posted as Medical Officer in L. L. R. Hospital, Kanpur, who examined him at 10. 48 p. m. on the very day of the incident and found a vertical red contusion of the size of 3 cm. x 2. 0 cm. on the parietal region of the left side of his scalp. 5. The investigation of the case resulted in presentation of charge-sheet against the appellants culminating into their trial and resultantly conviction and passing of sentences as aforesaid. 6. We have heard the learned Counsel for the appellants at sufficient length and have also gone through the materials on record. 7. The learned Counsel for the appellants has assailed the conviction of the appellants mainly on the ground of unreliability of the prosecution evidence and urged that the prosecution in this case had failed to discharge its burden to prove the guilt of the appellants beyond doubt and that the trial Court on wrong appraisal of the evidence has reached its conclusion. 8. It has first been argued that the prosecution evidence on facts consists of the testimonies of Bimal Kumar P. W. 1 and Manoj Kumar P. W. 2, who being the real brothers of the deceased are highly interested. Taking us through he evidence of Bimal Kumar P. W. 1, it has been urged that the incident is said to have taken place on a thorough fair in full public gaze, but neither any independent witness has been named in the FIR nor produced during the course of trial. True, that both the eye-witnesses produced by the prosecution in this case are real brothers of the deceased, but on that score alone their evidence cannot be thrown out. It is a matter of common experience that independent persons rarely opt to give evidence for the fear of procuring the enmity and there is nothing unusual that no independent witness was produced in support of the prosecution case. The non-production of an independent witness hardly makes any difference, so far as the merit of the case is concerned. It would be found that two of the appellants Vijai Kumar Dubey and Chandra Bhan both real brothers reside in the same vicinity of the place of the incident and it was not unlikely for independent persons not to have dared to come forward to support the prosecution case for their fear. It would be found that two of the appellants Vijai Kumar Dubey and Chandra Bhan both real brothers reside in the same vicinity of the place of the incident and it was not unlikely for independent persons not to have dared to come forward to support the prosecution case for their fear. The law on this point is also well settled. Thus the evidence of Bimal Kumar P. W. 1 and Manoj Kumar P. W. 2 cannot out right be rejected simply because they happen to be closely related to the deceased. Of course it has got to be approached with care and caution. 9. The learned Counsel for the appellants taking us through the evidence of Bimal Kumar P. W. 1 and Manoj Kumar P. W. 2 tried to show that besides their presence being doubtful on the spot, they have also made glaring contradictions and, therefore, their evidence could not have been relied upon to found the conviction of the appellants in absence of any corroboration from an independent witness. As regards Bimal Kumar P. W. 1, it has been argued that according to his own showing he is employees as a labourer in Roadways and lived alongwith his wife and children separately in Mohalla Rawatpur and could not have ordinarily be present on the scene of the occurrence at the time of incident, Bimal Kumar P. W. 1 though has admitted that he had hired a house in Mohalla Rawatpur, but has stated that he was living with his mother. It is not disputed that two of his brothers deceased and Manoj Kumar P. W. 2 at the time of incident resided in close proximity of the place of incident and there was nothing unusual if the informant on the fateful day of the incident had come to his mother and was present on the scene of the occurrence. It would be found that Bimal Kumar P. W. 1 has stated that he and the deceased were going to purchase vegetables when the incident took place and after the incident he took his injured brother on a Riksha to the Helet hospital where his injured brother was declared dead by the Doctor on duty, whereafter he scribed a written report, took it to P. S. Kakadeo and handed it over there. While taking the injured to the Helet hospital the bushirt which he was wearing had been stained with blood which he had handed over to the Station Officer on that very day. He had also got himself medically examined on the same day of the incident. Thus the facts that the FIR of this case was lodged by him at 9. 35 p. m. and he was medically examined at 10. 48 p. m. on the same day of incident clearly probablise his present on the spot. Had there been any delay in his arrival on the spot, there would have been little probability of his cloth having got stained with blood of the injured. Learned Counsel for the appellants then tried to impeach the credibility of Bimal Kumar on the basis of contradictions allegedly made by him. He argued that he, in the FIR which is said to have been lodged by him has stated that after the incident the accused had run away towards Kanhaiya hotel, but in his statement before the Court he has stated that the accused after the incident run away towards Ghanshayam Hotel. Referring to the statement of the Investigating Officer he pointed out that. Kanhaiya hotel is situated to the south east of the place of incident whereas Ghanshayam hotel lies to North West of the place of occurrence. Thus according to him there is great variance in these two statements of Bimal Kumar which goes to belie his presence on the spot. It would be found that the real brother of the informant had become the victim of the incident and had sustained serious injuries in his abdomen. Naturally the mental condition of Bimal Kumar would have been disturbed and his main concern at that time would have been to rush the injured to the hospital for his treatment and not to watch the exact direction to which the accused fled after the incident. Out of confusion also he might have mentioned the accused having fled towards Kanhaiya hotel instead of Ghanshyam hotel. This contradiction therefore, to my mind is not so material so as to throw away his entire evidence. It was then contended that Bimal Kumar has also belied on the point of his conviction under the Gambling Act. Out of confusion also he might have mentioned the accused having fled towards Kanhaiya hotel instead of Ghanshyam hotel. This contradiction therefore, to my mind is not so material so as to throw away his entire evidence. It was then contended that Bimal Kumar has also belied on the point of his conviction under the Gambling Act. At one place at page 4 he is found to have stated that he was not prosecuted under the Gambling Act, but at page six of his statement he has stated that he does not remember whether or not he was ever convicted under the Gambling Act. His brother, Manoj Kumar P. W. 2 has, however admitted on page 3 that he alongwith Bimal Kumar and brother Raju deceased had been prosecuted and fined under the Gambling Act. Though from the evidence of Bimal Kumar it appears that he has given an evasive reply on the point of his prosecution and conviction under the Gambling Act but even if for the sake of argument, it be taken that he has given false statement on this point, it will hardly justify discarding of his entire evidence. The principle of falsus in uno falsus in omnibus has no application in our country. There is hardly a witness whose statement does not suffer from any contradiction mis-statement or wrong statement. We have already seen that the presence of Bimal Kumar on the scene of the occurrence at the time of incident was very probable and he has testified also on the material particulars of the incident. His evidence finds corroboration from the evidence of Manoj Kumar P. W. 2, who on account of residing closely to the place of occurrence is a natural witness. The only incongruity that has been pointed out by the learned Counsel for the appellants in the statement of Manoj Kumar P. W. 2 is that he has made contradictory statements about the place from where he saw the incident and also that he being the real brother of the deceased did not accompany the informant in taking the deceased in injured condition to the hospital. A close scrutiny of the evidence of Manoj Kumar furnishes answer to both of these anxieties. Manoj Kumar P. W. 2 has stated that he had seen the occurrence from Chhajja of the room wherein he was residing at the time of incident. A close scrutiny of the evidence of Manoj Kumar furnishes answer to both of these anxieties. Manoj Kumar P. W. 2 has stated that he had seen the occurrence from Chhajja of the room wherein he was residing at the time of incident. In his statement under Section 161 Cr. P. C. , however, the Investigating Officer has shown him to have stated to have seen the incident from the roof. On the basis of his these two contradictory statements it has been argued that Chhajja and roof are two different things and this contradiction in the statement of Manoj Kumar P. W. 2 is material one belying his having at all seen any occurrence. To a common man it is diffeult to draw this distinction and unless the Investigating Officer would have recorded the statement of Manoj Kumar cautiously and carefully he would not have noticed this difference. It was, therefore, not improbable that the Investigating Officer might have described Chhajja as Chhat in the statement of Manoj Kumar P. W. 2 recorded under Section 161 Cr. P. C. Then as regard the second objection taken by the learned Counsel for the appellants about non accompanying of Manoj Kumar to Bimal Kumar P. W. 1 while taking the injured to the hospital Manoj Kumar has stated that he after the incident had rushed to Shastri Nagar to fetch his mother. Naturally, when such an incident had taken place, it was but natural for him to have informed his mother of the incident and bring her at his house. We thus see no inconsistency in the evidence of Manoj Kumar which may impair his credibility. His evidence lends support to the evidence of Bimal Kumar the informant who as proved by the prosecution had also sustained an injury in the incident. Thus on a careful scrutiny of the evidence of Bimal Kumar the informant and his brother Manoj Kumar we are of the view that their presence on the spot was quite natural and probable and there is nothing in their evidence which might render their testimonies either unbelievable or incredible on the point of either the occurrence of the participation of the appellants in the incident. 10. Learned Counsel for the appellants also doubted the place of occurrence and taking us through the site plan Ext. 10. Learned Counsel for the appellants also doubted the place of occurrence and taking us through the site plan Ext. Ka-14 urged that the Investigating Officer has not shown in it his having found blood on the spot. The Investigating Officer has proved the memo Ext Ka-6 through which he has collected the ordinary and blood soiled earth from the spot. The non-mentioning of his having found blood on the spot, therefore, is not of very much significance when a separate memo of his having taken the ordinary and blood soiled earth was prepared proved by an independent witness Chhote Lal P. W. 5. 11. The appellants, it would be found have also not disputed the date and time of the occurrence as also the presence of factual witnesses Bimal Kumar P. W. 1 and Manoj Kumar P. W. 2. They have produced one Pramod Kumar Shukla a neighbour of the deceased as D. W. 1, who has stated that the deceased and his brothers used their house for gambling purposes where the gamblers often need to quarrel. He has further stated that on the fateful date of the incident at about 8 or 8. 30 p. m. when he was present at the shop of a general merchant in front of the house of the deceased he saw that the informant, his brother Manoj Kumar and two others, who were not known to him taking out the dead-body of the deceased from his house and keeping on the road. He has also stated that he had seen profused bleeding on the dead-body and had also enquired from Bimal Kumar, the informant as to what had happened but Bimal Kumar asked him to mind his own business. Suggestion made to Bimal Kumar Srivastava P. W. 1 is that the appellants were falsely implicated as they had complainant against the gambling activities of the deceased. The hollowness of the evidence of Pramod Kumar Shukla D. W. 1 and the defence taken by the appellants is evident on the very face of it. It is unimaginable that soon after the killing of his brother, the informant would have thought of falsely implicating the appellants with whom he had insignificant grievance if at all the defence version as it is believed. It is unimaginable that soon after the killing of his brother, the informant would have thought of falsely implicating the appellants with whom he had insignificant grievance if at all the defence version as it is believed. It may be argued that by revealing the true facts of the incident, there was likelihood of highlighting the illegal activity that was allegedly going on in the house of the informant, but that too does not sound well. If the informant could concoct a false case against the appellants, he could also spin out a different story against the real assailants of his deceased brother. The defence version thus cannot be swallowed without a pinch of salt. Rather it goes to lend partial support to the prosecution case so far as the date, time place of occurrence and the presence of Bimal Kumar P. W. 2 and his brother Manoj Kumar P. W. 2 on the spot are concerned. 12. Thus having carefully scrutinised the evidence on record, we find that the prosecution by cogent and convincing evidence has succeeded to prove the time, place and participation of the appellants as also the manner and fashion in which the incident took place and there does not appear any infirmity in the conclusions of the learned trial Court on these points. 13. Now coming to the offences proved to be committed by the appellants we find that there is positive evidence that Ajai Kumar Dubey inflicted knife blows to the deceased. Dr. Bajpai P. W. 4 who held autopsy on the dead-body of the deceased found as many as three injuries and was of the opinion that all the ante- mortem injuries found by him on the person of the deceased could have been caused by knife and Injury No. 1 in ordinary course of nature was sufficient to cause the death of the deceased. Thus it is conclusively proved that Ajai Kumar Dubey did commit an offence under Section 302 IPC. 14. As regards appellant Chandra Bhan he is found to have exhorted his brother Ajai Kumar Dubey to teach the deceased a lesson by saying "mar do Sale Ko" whereupon Ajai Kumar took out a knife from the fold of his pant and inflicted injuries by it to the deceased. 14. As regards appellant Chandra Bhan he is found to have exhorted his brother Ajai Kumar Dubey to teach the deceased a lesson by saying "mar do Sale Ko" whereupon Ajai Kumar took out a knife from the fold of his pant and inflicted injuries by it to the deceased. There is nothing to show that at the time of giving exhortation he knew that his brother was armed with knife and he will inflict injuries to the deceased therefrom. From the language of exhortation also it does not appear that he had addressed his brother to kill Nirmal Kumar Srivastava. Another appellant Sanjay Kumar was also in his company and he had a hockey stick. In absence of any evidence that Chandra Bhan knew about his brother being in possession of knife, it was very likely that he might have had exhorted Sanjay Kumar to beat the deceased. Sanjay Kumar is also said to have used his hockey stick on the deceased and Bimal Kumar Srivastava P. W. 1. Thus from the evidence Chandra Bhan at the most can be held to have exhorted his co-accused to beat the deceased and not to cause his death. So is the case with Sanjay Kumar who on the exhortation of Chandra Bhan is found to have dealt blows by hockey stick with which he was armed to the deceased and Bimal Kumar Srivastava P. W. 1. Both the companions of appellant Ajai Kumar Dubey in absence of any evidence about their knowledge that Ajai Kumar Dubey was in possession of knife can safely be held answerable for sharing common intention in causing only hurts to the deceased. We thus find that whereas appellant Ajai Kumar Dubey has rightly been held guilty and convicted of the charge under Section 302 IPC, his other companions Chandra Bhan and Sanjay Kumar should not legally have been held guilty and convicted of the charge under Section 302 IPC read with Section 34 IPC. They having shared common intention to cause hurts only to the deceased, to our mind, should have been convicted under Section 323 IPC read with Section 34 IPC. In this view of ours, we are supported by the analogy of the decision of the Supreme Court in the case of Matadin and another v. State of Maharashtra, 1998 SCC 216 . In this view of ours, we are supported by the analogy of the decision of the Supreme Court in the case of Matadin and another v. State of Maharashtra, 1998 SCC 216 . For the reasons stated above, whereas we confirm the conviction of Ajai Kumar Dubey under Section 302 IPC, we modify the conviction of appellants Chandra Bhan and Sanjay Kumar and alter it under Section 323 IPC read with Section 34 IPC Appellant Ajai Kumar has been sentenced to life imprisonment, which is the minimum punishment prescribed for the offence of which he has been found guilty and convicted. It, therefore, requires no interference. So far as appellants Chandra Bhan and Sanjay Kumar are concerned, they are found guilty of the offence only under Section 323 IPC read with Section 34 IPC. 15. In view of what we have said above, this appeal succeeds partly so far as the conviction and sentences of appellants Chandra Bhan and Sanjay Kumar are concerned. Their conviction is altered under Section 323 IPC read with Section 34 IPC and each of them is sentenced to undergo three months R. I. 16. So far as the conviction and sentence of appellant Ajai Kumar Dubey are concerned this appeal fails and is hereby dismissed. 17. Let copy of this judgment be sent to the C. M. M. Kanpur Nagar for compliance of this order. He shall submit his compliance report at the earliest. Appeal dismissed. .