P. C. AGARWAL, J. ( 1 ) THE Appellants with late Shankariya S/c Hariya and late Malkhe S/c Hariya were convicted by Second Additional Sessions Judge Morena in S. T. No. 157/83 (State of M. P. v. Shankariya and others) on 21/10/1986 under Sections 148, 302/149 and 323/149 of the Indian Penal Code (Code for short) and sentended to undergo R. I. for one year, and life imprisonment and R. I. for 6 months respectively with the direction for concurrent execution. Both late Shankariya and late Malkhe died during the pendency of this appeal. Their appeals abated on 18/7/1991 and 22/9/ 2001 respectively. ( 2 ) AS per prosecution, on 12/3/1983, at about 7. 00 P. M. deceased Hakimsingh and Rajendra Singh (PW 1) were going to their fields. When they passed through the houses of the appellants, the appellants, late Shankariya and late Malkhe checked their way late Shankariya asked deceased Hakim Singh why does he visit the wife of his brother Ramcharan. Deceased Hakim Singh protested that late Shankariya is not concerned with his affairs Thereupon all the appellants with late Shankariya and late Malkhe started be labouring, deceased Hakim Singh. Sarman (A2) had a farsa in his hand while other appellants and late Shankariya and late Malkhe were armed with lathis. Even when deceased Hakimsingh fell on the ground, Gopal (A5) , Motilal (A4) struck blows of lathis on his head. When Rajendrasingh (PW 1) tried to intervene, late Shankariya and Gopal (A5) beat him also. Hearing the shouts for help of Rajendrasingh (PW 1), Mahaveersingh (PW 4), Sagarsingh (PW3), Raghurajsingh (PW 5) and Dildarsingh (PW 6) rushed to the spot. As per FIR late Shankariya and Sarman (A2) were also injured. Rajendrasingh (PW 1) proceeded to Police Station. Veerpur and lodged FIR (Ex. P /1) on the same day within two hours of such occurrence. ( 3 ) JAGDISH Prasad (PW 14 ). Head Constable. proceeded to spot and prepared spot map (Ex. P 12 ). He seized the broken teeth pieces and cut portion of lip of deceased. Hakim Singh vide Ex. P 13. He seized plain and blood stained earth from the spot vide Ex. P 13 and P14. Both deceased Hakim Singh who was alive then and Rajendrasingh (PW 1) were sent for medical examination. Dr. P 12 ). He seized the broken teeth pieces and cut portion of lip of deceased. Hakim Singh vide Ex. P 13. He seized plain and blood stained earth from the spot vide Ex. P 13 and P14. Both deceased Hakim Singh who was alive then and Rajendrasingh (PW 1) were sent for medical examination. Dr. K. K. Singh (PW 8) medically examined Rajendrasingh (PW 1) and found following two injuries on his person vide Ex. P/9: 1. Lacerated wound 3/4 x 1/2 x 1 14 on right forehead caused by hard and blunt object. Simple in nature. 2. Bruise size 1/3/4 x 3/4 on left hand (wrist) caused by hard and blunt object. Simple in nature. Duration within six hours. Dr. noted following injuries on the person of late Hakim Singh vide Ex. P 1-10:1. Lacerated wound 3 x i" x 1/4 right mid head. 2. Lacerated wound 2-1/2 x 3 x 4 x 1/5" mid head. 3. Lacerated wound 2-1/2 x 31 4 x 1 14 right temporal. 4. Lacerated wound 3 x i" x 1/4 mid head. 5. Lacerated wound 2 x 3/4 x 1/4 back side of head. 6. Lacerated wound 1-1/2" x3/4 x 1/3 left temporal region. 7. Bruise (inflamation) 4 x 3 backside of left palm. 8. Bruise 5 x 3 left forearm (lateral) 9. Lacerated wound 3-1 14 x 3/4 x 1/2 left lower lip. In all four teeth of lower jaw second central incisor, lateral incisor canine premolar, were noted detached by same hard and blunt object. In upper jaw first incisor was detached by hard and blunt object. Bleeding from socket present. These injuries to both the jaws were grievous while other injuries were simple. Duration was within 6 hours. He was referred to M. O. . Primary Health Centre Sabalgarh. for X-ray of skull and left forearm (below injuries No. 5. 7 and. 8) and for treatment. Later. deceased Hakimsingh died on 21/3/1983 in J. A. Group of Hospitals. Gwalior. His autopsy was done vide Ex. p 17 by Dr. V. K. Deewan. who noted following external injuries on his dead body:1. Stitched wound on the left zygoma 1 cm in length. 2. Stitched wound near left angle mouth 1-1/2 cm in length. 3. Stitched wound on lower lip transversely placed 3-1/2 cm in length. 4. Stitched wound over the right frontal region 4-1/2 cm in length. 5. V. K. Deewan. who noted following external injuries on his dead body:1. Stitched wound on the left zygoma 1 cm in length. 2. Stitched wound near left angle mouth 1-1/2 cm in length. 3. Stitched wound on lower lip transversely placed 3-1/2 cm in length. 4. Stitched wound over the right frontal region 4-1/2 cm in length. 5. Stitched wound over the right parietal region transversely placed 4-1/2 cm in length. 6. Abrasion left parietal region 2-1/2 cm x 1 cm, in length. 7. Swelling and stitched wound in left hand, fracture in middle of ulna bone, near elbow. The joint of radius and ulna bone was dislocated. 8. Abrasions multiple 1/2 cm x 1/2 cm in size over left hand dorsum and swelling and fracture in left 4th metacarpal bone present. 9. Abrasions multiple 1/6 cm x 1/6 cm right index and ring finger post. 10. Abrasion right finger lower medially 1/4 cm x 1/4 cm. Such injuries were ante mortem. Head injury had proved fatal. Cause of death was coma due to injury to brain and hemorrhage. Mode of death was homicidal. Duration was within 12 hours. 3-A. On 13-3-1983 late Shankariya, Munna (A1) and Sarman (A2) were arrested and a farsa was seized from the house of Sarman (A2) while lathis were seized from late Shankariya and Munna (A1 ). On 19-3-1983 Motilal (A4), Gopal (A5) and Shridhar (A3) were arrested and lathis was seized from each of them. On 22/3/1983. late Malkhe was arrested and a lathi was seized from him. On case property being sent to FSL Sagar. Assistant Chemical Examiner opined that lathis seized from Munna (AT ). Shridhar (A3 ). Motilal (A4), Gopal (AS) and late Shankariya and farsa seized from Sarman (A2) were blood stained. After due investigation charge-sheet under Sections 302, 147, 148 and 149 of the Code was filed. ( 4 ) THE appellants had pleaded not guilty. According to them they have been falsely implicated. Deceased Hakim Singh had illicit relations with Ramshri. The complainant party wanted to grab the property and land of the appellants. However, they have claimed that Munna (Al ). late Shankariya and Sarman (A2) had injuries on their persons detailed in Ex. D/6. D/7 and D/8. Late Shankariya had lodged the FIR (Ex. /d/9) in Police Station Veerpur, thereupon a criminal case was registered. The complainant party wanted to grab the property and land of the appellants. However, they have claimed that Munna (Al ). late Shankariya and Sarman (A2) had injuries on their persons detailed in Ex. D/6. D/7 and D/8. Late Shankariya had lodged the FIR (Ex. /d/9) in Police Station Veerpur, thereupon a criminal case was registered. ( 5 ) AS already seen, the trial court held all the appellants late Shankariya and late Malkhe guilty under Sections 148, 302/149 and 323/149 of the Code. ( 6 ) IN appeal, it is claimed that late Malkhe, Shridhar (A3 ). Motilal (A4) and Gopal (AS) were not there on spot. Deceased Hakim Singh and Rajendrasingh (PW 1) had tried to enter the house of Ramshri the wife of Ramcharan after consuming alcohol. On protesting deceased Hakim Singh and Rajendrasingh (PW 1) had assaulted late Shankariya and Munna (Al) and Sarman (A2) who were injured. On report of late Shankariya. Rajendrasingh (PW 1) was convicted under Section 326 of the Code. Sagarsingh (PW 3), Mahaveer Singh (PW 4), Raghurajsingh (PW 5) and Dildarsingh (PW 6) have not seen the occurrence. Their statements are inconsistent and unreliable. The prosecution has failed to explain the injuries on the persons of appellant party who had acted in exercise of their right of private defence. It is also claimed that witnesses belonged to the same family and no independent witness has been examined. ( 7 ) ON the other hand, the Additional Govt. Advocate has supported the judgment of the learned trial Court. ( 8 ) HOMICIDAL death of deceased Hakimsingh is proved by his nephew Rajendrasingh (PW 1), Sagarsingh (PW 3), Mahaveersingh (PW 4), Raghurajsingh (PW 5) and Dildarsingh (PW 6 ). Prompt FIR (Ex. P/1) by Rajendrasingh (PW 1) within two hours of the occurrence also supports the story Deceased Hakimsingh was examined while alive by Dr. K. K. Singh (PW 8), who had noted several injuries on his person detailed in para 3 of this judgment. Dr. V. K. Deewan (PW 7) on autopsy has noted several external injuries on his person. Such, injuries were ante mortem. Head injury had proved fatal. Cause of death was coma due to injuries and hemorrhage. Mode of death was homicidal. Hotamsingh (PW 2) and Amarsingh (PW 11) Head Constable had proved Inquest Memo (Ex. P /6); which further supports such story. Such, injuries were ante mortem. Head injury had proved fatal. Cause of death was coma due to injuries and hemorrhage. Mode of death was homicidal. Hotamsingh (PW 2) and Amarsingh (PW 11) Head Constable had proved Inquest Memo (Ex. P /6); which further supports such story. The appellants have merely shown ignorance of the fact, which is of no avail. Thus, it is established that deceased Hakimsingh had injuries on his person and had died due to head injury and his death was homicidal. ( 9 ) RAJENDRASINGH (PW 1) has claimed that all 5 appellants and late Shankariya and late Malkhe had assaulted deceased Hakimsingh and this witness from behind. Sarman (A2) had hit farsa on head of deceased Hakimsingh. Other appellants had be laboured deceased Hakimsingh by lathis, Sarman (A2) had dealt a blow of lathi on right hand, Gopal (AS) had given a blow on leg. Munna (Al) had hit on back. Motilalk (A4) on back, whereby deceased Hakimsingh had fallen down and was beaten even after such fall. On his shouting Sagar Singh (PW 3 ). Mahaveersingh (PW4) and Raghurajsingh (PW 5) had come on spot. All these three witnesses have unanimously supported the prosecution case. Dildarsingh (PW 6) has also claimed that he rushed to the spot and saw that exchange of abuses between late Shasnkariya and deceased Hakimsingh were going on. With Shankariya all S appellants and late Malke were also there. Sarman (A2) had a farsa while others had lathis in their hands and all of them be laboured deceased Hakimsingh. He claims that he had seen the event from a distance and when he reached the spot deceased Hakimsingh was lying unconscious bleeding from the cut lip and broken teeth. This story is well supported by Ex. P/1 FIR lodged within 2 hours of the occurrence by Rajendrasingh (PW 1 ). Story told in FIR is natural and probable. Medical evidence also supports such story. Dr. K. K. Singh (PW 8) had examined deceased Hakimsingh while he was alive and noted injuries vide Ex. P /10 detailed above. After death, Dr. V. K. Deewan (PW 7) had conducted autopsy and noted injuries vide Ex. P /7 detailed in earlier part of this judgment. Dr. K. K. Singh (PW 8) had noted injuries on person of Rajendrasingh (PW 1) also. P /10 detailed above. After death, Dr. V. K. Deewan (PW 7) had conducted autopsy and noted injuries vide Ex. P /7 detailed in earlier part of this judgment. Dr. K. K. Singh (PW 8) had noted injuries on person of Rajendrasingh (PW 1) also. ( 10 ) SUCH story of prosecution is further supported by seizure of farsa from Sarman (A2) and lathis from possession of other appellants. It is also noteworthy that on chemical examination FSL vide its report (Ex. P/29) has noted blood stains on lathis seized from Munna (A1), Shridhar (A3), Motilal (A4) and Gopal (AS) and on farsa seized from Sarman (A2 ). Though of course, report of Serologist is not here on record, yet the report of FSL is a very important piece of evidence in favour of the prosecution. After close scrutiny of this evidence. The learned trial Court has relied upon the prosecution story. The learned Advocate for the appellants had taken us through the evidence recorded and we have no reason to disagree with the trial Judge about credibility of the witnesses. ( 11 ) THE contention of the appellants that Sagarsingh (PW 3), Mahaveersingh (PW 4) and Raghurajsingh (PW 5) had not witnessed the occurrence, is of no avail. They are named in FIR and their statements were recorded by 1. 0. on the date of the occurrence itself. Of course, Rajendrasingh (PW 1) was injured in this occurrence. Even in report, lodged by late Shankariya (Ex. D/9), his presence on the spot is admitted. Some discrepancies between the statement of Dildarsingh (PW 6) in Court and his statement (Ex. D/s) recorded by 1. 0. have also been emphasized. Of course, he is not named in the FIR. He had seen the occurrence from a distance. Even if he had not named Motilal (A4), Shridhar (A3) and Gopal (AS) in his statement before 1. 0. , their participation in occurrence is not disputed as atleast 4 other eyewitnesses name them. They are named in the FIR also. The learned Advocate has emphasized about discrepancy in his statement about whose blow landed, on which part of body of the deceased. However, such discrepancy is immaterial and does not militate against their credibility. They do not effect the core of prosecution case and his testimony cannot be discarded. See Munshi Prasad v. State of Bihar, and Sukhdev Yadav v. State of Bihar. However, such discrepancy is immaterial and does not militate against their credibility. They do not effect the core of prosecution case and his testimony cannot be discarded. See Munshi Prasad v. State of Bihar, and Sukhdev Yadav v. State of Bihar. Evidence on record is credible and trustworthy. Of course benefit of doubt cannot be based on mere surmises and conjectures. Kunwar Bahadur Singh v. Shiv Varansingh. ( 12 ) THE learned Advocate had vehemently contended that the appellants had a right of private defence. It is well settled that burden of proving, that the alleged offence falls within the exception of exercise of right of private defence, is on accused. See Kashiram v. State of M. P. Main emphasis has been on the factum that Munna (A1), Sarman (A2) and late Shankariya are claiming to be injured in the same incident. Ex. D/ 6, D/7 and D/8, the medical certificates have been produced in defence. Though of course, the doctor has not been examined. A counter story vide Ex. D/9 FIR lodged by Shankariya is also put forward. Main thurst in this report had been that deceased Hakimsingh had illicit relations with the wife of Ramcharan, younger brother of late Shankariya, which was resented by late Shankariya. It is true that even in FIR (Ex. P/1) mention of wife of Ramcharan and resentment of late Shankariya on frequent visits of deceased Hakimsingh to her house was there. It is true that the prosecution has not stuck to this story at the stage of evidence. Of course, all 4 eye-witnesses Rajendrasingh. (PW 1), Sagarsingh Parmar (PW 3), Mahaveersingh (PW 4) and Raghurajsingh (PW 5) in their statements (Ex. D/1 to D/4), recorded by 1. 0. had admitted such story, yet in their statements before Court they claimed that the quarrel had started as cattle of late Shankariya had entered in their field. However, such minor contradictions do not affect the core of prosecution case. Neither Ramcharan nor his wife has been examined to show that they ever resented the visits of deceased Hakimsingh or Rajendrasingh (PW 1 ). There is no evidence on record that this was the first visit. Of course, the appellants had no right to check visits of late Hakimsingh to the house of Ramcharan. No criminal trespass by deceased Hakimsingh is proved. Admittedly, deceased Hakimsingh accompanied his real nephew Rajendrasingh (PW 1 ). There is no evidence on record that this was the first visit. Of course, the appellants had no right to check visits of late Hakimsingh to the house of Ramcharan. No criminal trespass by deceased Hakimsingh is proved. Admittedly, deceased Hakimsingh accompanied his real nephew Rajendrasingh (PW 1 ). Such visit was neither concealed nor could have surprised anyone. Though Rajendrasingh (PW 1) in para 8 has admitted that he was convicted under Section 326 of the Code and sentenced to 3 months R. I. due to occurrence dated 12/3/1983 of P. S. Veerpur, yet it is noteworthy that copy of the judgment has not been filed by the appellants and thus the actual offence for, which he was convicted is not established. No weapon has been seized either from deceased Hakimsingh or from Rajendrasingh (PW 1 ). The learned Advocate relying upon Lakshmisingh v. State of Bihar, and State of Rajasthan v. Madho, has argued that non explanation of injuries on persons of Munna (A1), late Shankariya and Sarman (A2) betrays suppression of truth by the witnesses entitling the appellants to benefit of doubt. ( 13 ) HOWEVER, in a recent case Takhaji Hiraji v. Thakore Kubersing Chamansing, the Honble Apex Court has considered the effect of non explanation of injuries sustained by the accused persons. After examining several decisions of Apex Court, it is held that: 17 The view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of the two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of occurrence in question. Non-explanation of injuries assumes greater significance when, the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Non-explanation of injuries assumes greater significance when, the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. In Gurmeet Sincjh v. State of Punjab, this same view has been followed. In Kasam Abdullah Hafiz v. State of Maharashtra, the Honble Apex Court after consideration of the State of Gujarat v. Bai Fatima, and Laxmisingh v. State of Bihar, held that non-explanation of injuries on person of accused is not always sufficient to discard prosecution evidence, Of course, in the present case, existence of injuries on persons of late Shankariya and Sarman (A2) was admitted in FIR itself. Counter version put by late Shankariya in Ex. D 9 has not been admitted by any of the prosecution witnesses. No witness is examined in defence. Certainly no FIR is substantive evidence. In Ex. D/9 causing injuries by appellant party to Rajendrasingh (PW 1) and deceased Hakimsingh is admitted. Story of deceased Hakimsingh and Rajendrasingh (PW 1) being aggressors is not borne out by any evidence. The same does not stand to reason. There was no logic in their being aggressors. The story of appellants being aggressors stands to reason. Of course, pride of the appellants party )Vas hurt by visits of deceased Hakimsingh to the house of Ramshree wife of Ramcharan, the brother of late Shankariya. It is neither natural nor probable that deceased Hakimsingh and Rajendrasingh (PW 1) would go unarmed and start beating late Shankariya, Munna (A 1) and Sarman (A2), who were relatives of Ramshree. In the facts and circumstances of the case, if the learned trial Court did not believe the appellants story no error was committed. ( 14 ) OF Course, Rajendrasingh (PW 1) is an injured witness. In the light of the decisions of the Honble Apex Court in Majju v. State of M. P. and Jahangir Singh v. State of Punjab his evidence is of great value. Presence of Sagar singh (PW 3 ). ( 14 ) OF Course, Rajendrasingh (PW 1) is an injured witness. In the light of the decisions of the Honble Apex Court in Majju v. State of M. P. and Jahangir Singh v. State of Punjab his evidence is of great value. Presence of Sagar singh (PW 3 ). Mahaveersingh (PW 4), Raghurajsingh (PW 5) and Dildarsingh (PW 6) on spot is established. Their testimony cannot be rejected merely because they are relating to the deceased. See, State of Rajasthan v. Hanuman, and Hukumsingh v. State of Rajasthan. Not only they are named in the FIR but being residents of the same vicinity, they are natural witnesses. They are not chance witnesses. Such witnesses can be relied upon. See Ramanbhai Narayanbhai Patel v. State of Gujarat, and Lokman Shah v. State of West Bengal Such witnesses are entitled to great value. There is no reason to implicate the appellants falsely and spare the real culprits. Thus. they cannot be disbelieved. See. Ramjisingh v. State of Bihar. ( 15 ) THUS. the finding of the learned trial Court that all these appellants with late Shankariya and late Malkhe formed an unlawful assembly and had done to death deceased Hakimsingh and voluntarily caused hurt to Rajendrasingh (PW 1), is not erroneous and has to be upheld. ( 16 ) NOW, it remains to be seen whether offence of murder under Section 302/149 of the Code is made against these appellants. Obviously, the unlawful assembly consisted of more than 5 person. The members of such assembly had conjointly assaulted deceased Hakimsingh by means of farsa and lathis causing at least 9 injuries; six of which were on head. Head injuries had proved fatal. Victim Hakimsingh had died 9th day of such assault. Obviously, the appellants had a motive to do away deceased Hakimsingh as their pride was hurt. The appellants had deep grudge against visits of deceased Hakimsingh to the house of wife of Ram char an, the brother of late Shankariya. In the facts of the case, obviously the appellants and late Shankariya and late Malkhe had intended to cause death of deceased Hakimsingh or at least they had intention to cause such injuries, which were sufficient in ordinary course of nature to cause his death. Thus, conviction of the appellants and late Shankariya and late Malkhe under Section 302/149 of the Code has not been erroneous and is hereby confirmed. Thus, conviction of the appellants and late Shankariya and late Malkhe under Section 302/149 of the Code has not been erroneous and is hereby confirmed. Conviction and sentence under sections 148 and 323/149 of the Code are also confirmed as it is. ( 17 ) THE learned trial Court has awarded the lesser penalty for the offence. Thus, there is no scope for interference. Thus, the appeal fails. The finding recorded by the trial Court and sentences awarded are hereby confirmed. The period of detention and imprisonment after judgment shall be set off in the sentence awarded. The appellants are on bail. Their personal bonds and bail bonds are cancelled. They shall surrender before C. J. M. Morena to serve out the remaining sentence. In case of default non-bailable warrants shall be issued against them. Appeal dismissed. .