Judgment ( 1. ) BY this common judgment, both the aforementioned Cr. Appeal Nos. 438/96 (Babariya and Ors. v. State) and 463/96 (Puniya and Ors. v. State of M. P.) are being decided. ( 2. ) BOTH these appeals are directed against the judgment dated 16-5-96 passed by the learned Addl. Sessions judge, Dhar in Sessions Trial No. 166/94, thereby convicting the appellants for the offences punishable under Section 148 and Sections 302/149 of the Indian Penal Code and sentencing them each to undergo R. I. for six months with fine Rs. 500/-, in default of payment of fine to suffer R. I. for three months and to undergo imprisonment for life with fine Rs. 2,000/-, in default of payment of fine to suffer R,i. for six months respectively. The substantive sentences are directed to run concurrently. The total amount of fine of Rs. 22,500/-, on its realisation, has been ordered to be paid to the widow or in her absence to the elder son of the deceased. 2. Succinctly, the prosecution case before the Trial Court was that on 22-3-94 in the night at about 8. 00 PM, deceased Thavaria, his brother Nanuram (P. W. 1) and one Karansingh were returning from their field. When they reached in front of the house of appellant Babariya, the appellants having spear, Falia, lathi and axe surrounded the deceased Thavaria and started assaulting him. His brother Nanuram (P. W. 1) tried to save him, but he too was assaulted by lathi. The appellants made Nanuram and Karansingh to run away from the scene of occurrence by pelting stones. While Nanuram and Karansingh reached near their house, they met P. W. 5 Sukhram to whom, they disclosed about the incident. Upon receiving this information, Sukhram proceeded alongwith Karansingh and Nanuram near the place of incident Sukhram (P. W. 5) also saw the accused persons armed with weapons at the scene of occurrence in front of the house of the appellant Babariya. Again, the appellants started pelting stones at Nanuram, Karansingh and Sukhram, consequent to which, all these three persons had run away and took shelter in their houses. Next day in the morning, again Nanuram and Sukhram reached in front of the house of appellant Babariya where they did not find the deceased Thavaria. On search, his dead-body was found lying one kilometer away near Piplakhodra from the place of incident. ( 3. Next day in the morning, again Nanuram and Sukhram reached in front of the house of appellant Babariya where they did not find the deceased Thavaria. On search, his dead-body was found lying one kilometer away near Piplakhodra from the place of incident. ( 3. ) THE First Information Report (Ex. P-26) was lodged by Sukhram (P. W. 5), brother of the deceased on 23-3-94 at 12. 30 PM. This was pen-down by the Station House Officer D. V. S. Chouhan (P. W. 7 ). The dead-body of the deceased was sent for post-mortem examination. Autopsy was performed by Dr. Maheshkumar Dhakad (P. W. 4) who found one triangular incised (piercing) wound at the left ear which pierced upto the brain, one lacerated wound on the left scapular region and one incised wound on left cheek below left eye. The post-mortem report is Ex. P-25. The cause of death was because of injury No. 1. Other two injuries were simple in nature. ( 4. ) NANURAM (P. W. 1), eye-witness was also medically examined. On his person the doctor found two swellings, one on the left leg and another on the chest. His medical report is marked as Ex. P-26, but in fact this should have been marked as Ex. P-27, because the First Information Report is marked as Ex. P-26 and proved by Dr. Mahesh Kumar Dhakad (P. W. 4 ). ( 5. ) AFTER usual investigation, charge-sheet was submitted and the appellants were put to trial. Their defence was one of denial. The learned Trial Court, after examining the prosecution witnesses and hearing both the parties, convicted and sentenced the appellants as indicated hereinabove. ( 6. ) WE have heard Shri Sanjay Sharma, learned Counsel for the appellants and Shri Girish Desai, learned Deputy Advocate General for the respondent-State. ( 7. ) IN all nine persons (appellants) were prosecuted for causing the death of Thavaria who sustained only three injuries. Therefore, apparently, it appears that either some of them (appellants) were not present on the scene of occurrence, but implicated or even if they were present, they did not take active participation in causing death of deceased Thavaria. ( 7. ) IN all nine persons (appellants) were prosecuted for causing the death of Thavaria who sustained only three injuries. Therefore, apparently, it appears that either some of them (appellants) were not present on the scene of occurrence, but implicated or even if they were present, they did not take active participation in causing death of deceased Thavaria. Therefore, the moot question before this Court is that whether the testimony of interested solitary injured eye-witness (brother of the deceased) Nanuram (P. W. 1) is to be acted upon or not coupled with the statement of Sukhram (P. W. 5) who had also seen the appellants on the scene of occurrence immediately after the deceased was assaulted. ( 8. ) WE have been taken through the statement of Nanuram (P. W. 1) who has testified that the appellant Babariya had dealt a blow by sharp-edged weapon (Tangiya) a small axe on the shoulder of deceased Thavaria and appellant Heera caused injury by spear at or near his ear. The appellant Bhiliya and Jhamra assaulted the deceased by lathi and appellant Onkar dealt a lathi-blow on his leg and waist. He and Karansingh ran away from the scene of occurrence. They were chased by the accused persons. This witness came to his house and disclosed the incident to his brother Sukhram (P. W. 5 ). Nanuram (P. W. 1) again came with his brother Sukhram and other persons on the scene of occurrence where the accused persons were present and on their reaching, the accused/appellants started pelting stones at them, because of which, they again came back to their house. On the next day morning, they did not find the dead-body of his brother at the place of incident, but the same was found at some distance. The first information was lodged by Sukhram (P. W. 5 ). ( 9. ) THE version of this witness is duly corroborated by the medical evidence about participation and causing injury by appellant Babariya and Heera by sharp-edged weapons. His version is not corroborated against appellant Heera and Jhamaria regarding causing of injury to deceased by lathi, because, the deceased did not sustain any injury caused by lathi or any hard and blunt object. So far as participation of other accused persons is concerned, he has given general and omnibus statement. His version is not corroborated against appellant Heera and Jhamaria regarding causing of injury to deceased by lathi, because, the deceased did not sustain any injury caused by lathi or any hard and blunt object. So far as participation of other accused persons is concerned, he has given general and omnibus statement. Because he is a real brother of the deceased and also sustained injury in the same incident, therefore, though he is an interested witness, but his testimony cannot be brushed aside altogether against all the accused persons. After going through the statements of Nanuram (P. W. 1), Sukhram (P. W. 5) and Daryao (P. W. 6), we are fully satisfied that Nanuram (P. W. 1) had witnessed the incident and thereafter immediately gave information to this brother Sukhram (P. W. 5 ). Thereafter, Sukhram (P. W. 5) and Daryao (P. W, 6) reached alongwith Nanuram (P. W. 1) on the scene of occurrence and saw the appellants present on or near the spot. The accused persons again pelted stones towards these persons to make them to run away from the scene of incident. Because Nanuram (P. W. 1) being brother of the deceased Thavaria, he will not spare the real culprit and implicated the other persons in their place. At the same time, related witness to the deceased may not be immune from implicating the innocent persons. Therefore, it is the duty of the Court to separate the grain from the chaff. ( 10. ) AFTER going through the testimony of Nanuram (P. W. 1), Sukhram (P. W. 5) and Daryao (P. W. 6) as also the evidence of Dr. Mahesh Kumar Dhakad (P. W. 4), we are of the view that these witnesses are reliable for bringing home the guilt of appellants Babariya and Heera for causing injuries and sharing common intention to commit murder of deceased Thavaria by sharp edged weapons. The other witnesses might be present on or near the place of occurrence, but they cannot be held responsible with the help of Section 149 of the Indian Penal Code for causing death of deceased Thavaria, because, there is no positive evidence available on record to establish that they were the members of unlawful assembly whose common object was to commit murder of Thavaria. If nine persons would have taken part with deadly weapons for causing injury to the deceased and Nanuram (P. W. 1), certainly the deceased would have received more than three injuries. So the medical report is clearly falsifying the active participation of other appellants than Babariya and Heera. Therefore, they are entitled to get benefit of doubt. Reliance can safely be placed on the judgment reported in Budhwa alias Ramcharan and Ors. v. State of Madhya Pradesh (AIR 1991sc4), wherein, it has been held :- "held, that the conviction of the appellants accused was principally based on the evidence of the deceaseds mother and sister. Though their evidence is not to be discarded as interested, the necessary caution has to be observed in accepting the evidence of these witnesses. It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. The Courts have, therefore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the Court would be obliged to give the benefit of doubt to them. " ( 11. ) IN the case of Birathi alias Sukhdev Singh v. State of Punjab ( AIR 1991 SC 318 ), it has been observed that :- "there is no doubt that when a Criminal Court has to appreciate evidence given by witnesses who are closely related to the deceased, it has to be very careful in evaluating such evidence but the mechanical rejection of the evidence on the sole ground that it is interested would invariably lead to failure of justice. " ( 12. ) LEARNED Counsel for the appellants submitted that the First Information Report has not been lodged by Nanuram (P. W. 1), though he was the eye-witness of the incident. That throws doubt on the prosecution case about his witnessing the incident. We find no force in this argument because, the First Information Report (Ex. P-26) is disclosing the fact that Nanuram (P. W. 1) was accompanying the deceased alongwith Karansingh who has not been examined by the prosecution because, he turned hostile. It has also been argued that the name of Babariya has not been mentioned in the First Information Report. We find no force in this argument because, the First Information Report (Ex. P-26) is disclosing the fact that Nanuram (P. W. 1) was accompanying the deceased alongwith Karansingh who has not been examined by the prosecution because, he turned hostile. It has also been argued that the name of Babariya has not been mentioned in the First Information Report. Therefore, he could not have been held guilty and convicted by the Trial Court. This is true that the name of Babariya is not mentioned in the FIR, but the FIR was not lodged by the eye-witness Nanuram (P. W. 1 ). It was lodged by Sukhram (P. W. 5) who reached on the scene of occurrence after the incident of assault and fatal blows given by appellant Babariya and Heera. Though this witness was informed about the incident by eye-witness Nanuram (P. W. 1), but since he himself has not witnessed the whole incident of assault, the possibility of missing the name of Babariya while lodging the First Information Report by him, cannot be ruled out. The fact remains that Nanuram (P. W. 1) who was accompanying the deceased and being an injured eye-witness has mentioned the name of Babariya consistently and his version is duly corroborated by the medical evidence as well as the statement of Daryao (P. W. 6 ). Therefore, there is no room for having any doubt about the presence and active participation of the appellant Babariya. ( 13. ) THE next argument advanced by the learned Counsel for the appellants is that the dead-body was not found on the place of incident as shown in the map (Ex. P-30 ). This fact has not been disputed by the prosecution. The prosecution case itself was that when on the next day, witnesses reached on the scene of occurrence where the incident had taken place, the dead-body was not available there and the same was found near the NALA. We have perused the map Ex. P-30 showing this fact clearly. So the possibility of shifting of dead-body by the accused persons from in front of the house of accused Babariya to the place where the same was found, cannot be ruled out. ( 14. We have perused the map Ex. P-30 showing this fact clearly. So the possibility of shifting of dead-body by the accused persons from in front of the house of accused Babariya to the place where the same was found, cannot be ruled out. ( 14. ) WE have given our anxious and careful consideration to the evidence available on record as well as the reasoning given by the Trial Court in its judgment after scrutiny of the evidence on record and we are of the opinion that except the appellants Babariya and Heera no other accused/appellants could be held responsible for the offence under Section 302 read with Section 149, IPC. ( 15. ) THE Supreme Court in Sherey and Ors. v. State of U. P, ( AIR 1991 SC 2246 ) held that where large number of accused is charged with the evidence of witnesses is to be subjected to close scrutiny in the light of their former statements, and First Information Report, though the witnesses arc giving long list of names of accused, but charging only two persons with overt acts. In that situation, variation warrants conviction to only those against whom overt acts were attributed. Therefore, the appellants excepting Babariya and Heera are entitled for acquittal. Overt act of appellant Babariya and Heera has been duly proved by the statements of Nanuram (P. W. 1), Sukhram (P. W. 5) and Daryao (P. W. 6) corroborated by the medical evidence. We are of the opinion that both these appellants Babariya and Heera are liable for committing the murder of deceased Thavaria. Therefore, we alter their conviction under Section 302 read with Section 34 of the Indian Penal Code. Since the appellants Babariya and Heera were charged with the offence under Gections 302/149, IPC, they are acquitted from this charge, but they are convicted under Section 302 read with Section 34 of the Indian Penal Code. ( 16. ) IN the result, both these appeals are partly allowed. The appellants Babariya and Heera are found guilty of the offence under Section 302 read with Section 34 of the Indian Penal Code. They are convicted accordingly. However their sentence of imprisonment for life with fine Rs. 2,000/- each is hereby maintained. The conviction and sentence of remaining appellants Onkarsingh, Bholiya, Puniya, Jhamra, Keshariya, Gulab and Amarsingh are set aside. They are on bail. Their bail bonds shall stand discharged. They are convicted accordingly. However their sentence of imprisonment for life with fine Rs. 2,000/- each is hereby maintained. The conviction and sentence of remaining appellants Onkarsingh, Bholiya, Puniya, Jhamra, Keshariya, Gulab and Amarsingh are set aside. They are on bail. Their bail bonds shall stand discharged. ( 17. ) SINCE all the appellants are not found guilty of the offence under Section 148 of the IPC, their conviction and sentence under this section is set aside. The amount of fine awarded under this Section shall be refunded to the appellants, if deposited or realised. The amount of fine, if deposited or realised for the offence under Sections 302/149 of the IPC from the appellants Onkarsingh, Bholiya, Puniya, Jhamra, Keshariya, Gulab and Amarsingh shall also be refunded to them, but the amount of fine realised or deposited from the appellants Babariya and Heera shall be paid to the widow of the deceased Thavaria or in her absence to her elder son, as directed by the learned Trial Court, as compensation. ( 18. ) ORIGINAL judgment shall be retained in the record of Cr. Appeal No. 438/96 and a copy thereof shall be placed in the record of Cr. Appeal No. 463/96.