JUDGMENT Ashok Kumar Tiwari, J. Six accused persons namely Raj Kumar s/o Shivram, Bharat s/o Munnalal, Anil s/o Rambhau, Ramesh s/o Trambatrao, Subhash s/o Shyamlal and Dilip s/o Jagjivan were tried before the 2nd Additional Sessions Judge, Indore in Sessions Trial No. 214/94 and by judgment and other dated 23-9-1995 passed by him in the aforesaid sessions trial, accused Anil was acquitted and remaining five accused persons were convicted u/s 147, Indian Penal Code. Accused Raj Kumar and Subhash were in addition also convicted u/s 148 and 302 of Indian Penal Code while the remaining other accused persons were convicted u/s 302 read with 149, Indian Penal Code. Feeling aggrieved by the conviction and sentence awarded, accused Ramesh has filed the present Criminal Appeal No. 747/95 and other convicted accused persons Raj Kumar and Subhash have filed Criminal Appeal No. 810/95; Dilip s/o Jagjivan has filed Criminal Appeal No. 863/95 and Bharat s/o Munnalal has filed Criminal Appeal No. 980/995, which has been abated due to his death during the pendency of the appeal. Since all the above mentioned appeals arise out of one and the same judgment and order of conviction, therefore, they are being disposed of by this common judgment. Briefly stated, the prosecution's case is that on 28-3-1994, i.e. the next day of Holi festival, Vijay (PW-11) and Gopal (PW-10) had been to Raju (PW-9), who resided near Devshree Talkies in Harijan Colony, Indore. They both asked Raju (PW-9) to accompany them to the house of their brother-in-law Santosh who was residing at Patnipura, Indore. Raju (PW-9) agreed to their proposal and on the way when they crossed Malwa Mill then near a shop of country liquor, they saw that appellants were assaulting and giving beating to Dinesh with legs and fists. Appellant Raj Kumar struck a knife blow on the chest of Dinesh. Dinesh, in order to save himself, ran away towards the bicycle shop situated nearby the scene of occurrence, but appellants chased him and appellant Dilip caught hold of him and appellant Subhash again struck him a knife blow. Injured Dinesh entered in the bicycle shop of Ravi Shukla (PW-13). Blood was oozing out from the chest of Dinesh. Appellants also tried to enter in the shop, but Ravi Shukla (PW-13) restricted them from entering in the shop thereby they went back and ran away from the spot. Injured Dinesh entered in the bicycle shop of Ravi Shukla (PW-13). Blood was oozing out from the chest of Dinesh. Appellants also tried to enter in the shop, but Ravi Shukla (PW-13) restricted them from entering in the shop thereby they went back and ran away from the spot. Ravi Shukla (PW 13) made injured Dinesh to sit in his shop and he went to the house of Dinesh and informed about the incident. Sister of Dinesh reached on the shop of Ravi Shukla (PW13). Thereafter, injured Dinesh was taken to M.Y. Hospital where he was declared dead. Gopal (PW 10) made First Information Report (Ex. P/16) at Police Station Tukoganj, Indore. Police prepared crime details from (Ex. P/15). Autopsy on the dead body of deceased Dinesh was performed by Dr. Ravindra Choudhary (PW-14), who after autopsy, prepared post mortem report (Ex. P/18). After completing due investigation, police filed challan against the appellants/accused (Raj Kumar, Bharat, Anil, Ramesh, Subhash and Dilip). They abjured their guilt before the learned trial Court, thereby they were tried by the trial Court and after trial, accused Anil was acquitted by the trial Court, but appellants Raj Kumar and Subhash were convicted under sections 148 and 302, Indian Penal Code and Bharat, Ramesh and Dilip were convicted u/s 302/149, Indian Penal Code. All the five aforesaid accused were also convicted u/s 147, Indian Penal Code by the impugned judgment. Therefore, the appellants have filed the respective aforesaid appeals. Appeal filed by Bharat s/o Munnalal has been disposed of as being abated. Appellants did not dispute the fact that deceased Dinesh met homicidal death. Dr. Ravindra Choudhary (PW-14) performed the autopsy on dead body of Dinesh. From his deposition, it is evident that deceased Dinesh has sustained two stab injuries on his chest. The aforesaid witness has opined that cause of death of Dinesh was shock and haemorrhage. He has also opined that cause of death of Dinesh was bleeding from stab wounds on the vital part of the body which resulted in shock. He has also opined that the death of Dinesh was homicidal. It is thus established beyond doubt that death of deceased Dinesh was homicidal. The next question which arises for consideration is whether appellants caused injury to deceased? He has also opined that the death of Dinesh was homicidal. It is thus established beyond doubt that death of deceased Dinesh was homicidal. The next question which arises for consideration is whether appellants caused injury to deceased? The prosecution has led direct evidence as well as corroborative evidence in this regard Raj Kumar (PW-9), Gopal (PW-10) and Vijay (PW-11) have described the incident in their testimonies. Raju (PW-9) has deposed that Vijay (PW-11) and Gopal (PW-10) requested him to accompany them to the house of their brother-in-law Santosh that is why, all the three were going together. Raju (PW-9) has deposed that when they reached near the shop of country liquor it was about 5.00 p.m. to 5.30 p.m., their attention was attracted by some noise of quarrel and he saw appellants assaulting Dinesh. This witness has testified the presence of all the accused persons excepting that of the acquitted accused Anil. Gopal (PW-10) and Vijay (PW-11) has supported the testimony of Raju (PW-9). All the above witnesses have deposed in their statements that appellants were assaulting Dinesh and appellants Raj Kumar and Subhash hit the deceased Dinesh with knife. According to these witnesses, the knife blow was landed on the chest of the deceased. Learned counsel for appellants has contended that these witnesses are chance witnesses and they are interested in deceased also, therefore, conviction could not be based on their testimonies. This contention is hardly acceptable. The testimony of near relative or friend cannot be discarded only on the count that he is or could be interested in deceased. However, the testimony of such a witness will have to be scrutinized cautiously. Presence of chance witness, if not doubtful and his testimony does not suffer from any infirmity, it could also be acted upon safely. These witnesses have disclosed the reason of their presence on the spot. Gopal (PW-10) and Vijay (PW-11) are brothers and they were going to house of their brother-in-law Raju (PW-9), did accompany them on their request. It was the day after Holi festival. Therefore, it is but natural and most probable that Gopal (PW-10) and Vijay (PW-11) might be going to meet and greet their brother-in-law at his house and Raju (PW-9) being their friend was accompanying them. There is nothing in their cross-examination, which may suggest that their presence on the spot was improbable or unnatural. Therefore, it is but natural and most probable that Gopal (PW-10) and Vijay (PW-11) might be going to meet and greet their brother-in-law at his house and Raju (PW-9) being their friend was accompanying them. There is nothing in their cross-examination, which may suggest that their presence on the spot was improbable or unnatural. Learned counsel for the appellants have pointed out some discrepancies in the testimonies of these witnesses, but the discrepancies are of minor nature and they relate to such minutes details, which do not affect the credibility of the witnesses adversely. Learned counsel for appellants Raj Kumar and Subhash have vehemently argued that there is a wide difference between the descriptions given by witnesses regarding striking of knife. Raju (PW-9) had deposed that Dilip struck Dinesh with knife then appellant Subhash caught hold of deceased Dinesh and appellant Raj Kumar hit him with knife while Gopal (PW-10) has stated that appellant Raj Kumar struck knife blow on the chest of deceased thereafter appellant Dilip caught hold of deceased and appellant Subhash struck him with knife. Submission of the learned counsel is that looking to variation in statements of these witnesses they should have not been believed. This contention cannot be accepted because, this type of variation does not make the testimony unreliable as while giving the description regarding assault made by numerous persons, such type of contradiction is bound to occur because of human error one may have some confusion in mind in recalling as to exact action of each individual. Besides this, Vijay (PW-11) has also given an account of incident and he has deposed that deceased Dinesh was being beaten with legs and fists by the appellants then appellant Raj Kumar took out knife from his pocket and struck the knife on the chest of deceased Dinesh. He has further deposed that in order to save his life, Dinesh ran towards a bicycle shop then Dilip caught hold of him and Subhash @ Shibbu hit him on his chest with knife. Thus, if the statement of Raju (PW-9) is totally ignored, still we are left with statements of Gopal (PW-10) and Vijay (PW-11), which are totally corroborated with each other. It is also pertinent to note that Raju (PW-9) has stated during the cross-examination in paragraph 24 of his statement that he has not deposed in his statement that Dilip struck knife to Dinesh. It is also pertinent to note that Raju (PW-9) has stated during the cross-examination in paragraph 24 of his statement that he has not deposed in his statement that Dilip struck knife to Dinesh. He then deposed of his own in this paragraph that Subhash did strike. As already stated even leaving apart the statement of Raju (PW-9), the statements of Gopal (PW-10) and Vijay (PW-11) clearly establish that appellants Raj Kumar and Subhash inflicted knife blows on the chest of deceased Dinesh. Their statements support each other and they are also corroborated by medical evidence. Ravi Shukla (PW-13) has also supported prosecution's case. He has deposed in his statement that from the date of incident at about 5.30 p.m., he and his friend Indra Pal was sitting on the counter of his cycle shop then he heard some noises and he saw that deceased Dinesh was running away and appellants Subhash and Dilip were chasing him. He has deposed that appellant Subhash was carrying knife in his hand. He has also deposed that when he rose then he saw that Dilip was holding Dinesh and Subhash struck him on chest with knife. He has deposed that Dinesh entered in his shop crying for saving him, with his hands pressed on his chest. Ravi Shukla (PW-13) has stated that he stopped appellants Subhash who was carrying knife in his hand, from entering into his shop and he asked Dinesh to sit comfortably in his shop and then he went to his (deceased Dinesh) house to inform his sister and other relations about the incident. Ravi Shukla (PW-11) has deposed that he runs a business of renting and repairing bicycles at the shop situated at Patnipura main road in the name and style of Shukla Cycle Service. Nagendra (PW-12) is a hostile witness, but he has supported the prosecution's case to some extent, as he has deposed that on 28-3-1994 some quarrel was ensued at Shukla Cycle Service at about 5.30 p.m. to 5.45 p.m. He has deposed that he was at his hotel at that time when he heard some noises and saw that young man wetted with blood was lying near the shop of Shukla Cycle and crowd was gathering there. He has also stated that some persons were going riding in the Rikshaw. He has also stated that some persons were going riding in the Rikshaw. He has also stated that he had seen knives in the hands of Subhash and Raj Kumar. There is evidence to the effect that sister of deceased Dinesh, Malti arrived on the scene of occurrence and Dinesh in injured condition was taken to hospital, where he was declared dead. Thereafter, First Information Report (Ex.P/16) was made promptly. Learned counsels for the appellant have also contended that provisions of section 157 of Criminal Procedure Code have not been complied with; therefore, prosecution's case and the statements of witnesses are not reliable. This contention cannot be accepted. Arun Kumar Jain (PW-15), who was the Station House Officer of Police Station, Tukoganj at the relevant time, has stated in his statement in paragraph 6 that the entry in relation to First Information Report has been made in general daily diary and offence was registered on the basis of FIR. He has also stated that information of FIR was sent to C.J.M., Indore and this information was sent during office hours. He has further stated that entry in this regard has been made in case diary. In paragraph 11 of his statement, the above witness has stated that he himself did not send the report and he is unable to state that the information was sent through which of the constable. He is also unable to state as to when the Magistrate received the information, but this does not lead to the conclusion that provisions of 157, Criminal Procedure Code was not complied with. Head Constable Kailash (DW-1) has been examined by defence. This witness has stated that in roznamcha-sanha No. 2912 dated 28-3-1994 the fact about sending the information regarding the offence is not mentioned, but this does not mean that copy of the FIR was not sent to the Magistrate. Arun Kumar Jain (PW-15) has clearly deposed in paragraph 11 of his statement that the entry regarding sending of information to the Magistrate concerned has been made in the case diary. He has stated that it was handed over to Constable Moharir vide No. 1261 dated 28-3-1994. In this state of affairs, it appears that the copy of the FIR was dispatched in due course. Even if, there be some delay in the dispatch of FIR, it has no effect on the prosecution's case. He has stated that it was handed over to Constable Moharir vide No. 1261 dated 28-3-1994. In this state of affairs, it appears that the copy of the FIR was dispatched in due course. Even if, there be some delay in the dispatch of FIR, it has no effect on the prosecution's case. Mere delay in the dispatch of the FIR itself is no ground to throw away the prosecution's case in its entirety. Appellants could not point out that FIR is the result of consultation and deliberations and was recorded much later than the date and time mentioned in it. Any unfairness in investigation also has not been pointed out. From the evidence adduced by prosecution, it is fully established that appellants Raj Kumar and Subhash @ Shibbu struck deceased Dinesh on his chest with knife. It is proved that appellant Dilip caught hold of Dinesh while appellant Subhash landed knife blow on his chest. Appellant Raj Kumar is also said to inflict knife injury on chest of deceased Dinesh. Raju (PW-9), Gopal (PW-10) and Vijay (PW-11) have stated that the appellants were beating Dinesh with kicks and fists. This part of their statement is omnibus in regard of appellant Ramesh and Bharat. The detailed account of the incident given by these witnesses and which has been discussed above, do not show any active participation of appellant Ramesh and accused Bharat. There is nothing against Ramesh and Bharat in the statement of Ravi Shukla (PW-13) also. From the evidence of prosecution no inference can be drawn that Ramesh and Bharat were members of unlawful assembly, common object of which was causing the death of deceased Dinesh. Therefore, they cannot be held responsible for the acts of appellants Raj Kumar, Dilip and Subhash. They cannot be held guilty for any offence independently also on the strength of the omnibus assertions of Raju (PW-9), Gopal (PW-10) and Vijay(PW-11). Appellant Ramesh is, therefore, entitled to get benefit of doubt and acquitted of charges levelled against him. It is evident from the testimonies of Raju (PW-9), Gopal (PW-10) and Vijay (PW-11) that Raj Kumar inflicted the knife blow on the chest of deceased Dinesh. When he tried to run away, he was chased by appellants Subhash and Dilip and appellant Dilip caught hold of him and Subhash @ Shibbu inflicted another blow with knife on his chest. It is evident from the testimonies of Raju (PW-9), Gopal (PW-10) and Vijay (PW-11) that Raj Kumar inflicted the knife blow on the chest of deceased Dinesh. When he tried to run away, he was chased by appellants Subhash and Dilip and appellant Dilip caught hold of him and Subhash @ Shibbu inflicted another blow with knife on his chest. Thereafter, when Dinesh entered into the shop of Ravi Shukla (PW-14), appellant Subhash also tried to enter into the shop with knife in his hand. From the above facts, it can be very well inferred that appellants Raj Kumar and Dilip and Subhash were sharing common intention and that intention was to kill Dinesh. Injuries were inflicted by knife on the chest of the deceased, which is a vital part of the body. From the nature of injuries inflicted, it can be very well inferred that the author of the injuries intended to cause death, as appellants were acting in furtherance of common intention, it is not important that who caused the fatal injury and all the appellants Raj Kumar, Subhash @ Shibbu could be held guilty with the help of section 34, Indian Penal Code for causing murder of deceased Dinesh. While deceased was trying to escape after being hit with knife on chest, appellant Dilip along with Subhash followed him and appellant Dilip caught hold of deceased Dinesh while appellant Subhash struck him with knife on his chest. In these circumstances, appellant Dilip is also guilty for murder u/s 302 read with section 34, Indian Penal Code. As the number of persons fall short of five, therefore, the existence of unlawful assembly could not inferred and appellants could not be convicted u/s 147 and 148 of Indian Penal Code. Therefore, their conviction on these counts could not be upheld and the conviction u/s 302/149 deserves to be converted into conviction u/s 302/34 of Indian Penal Code. Consequently, Criminal Appeal No. 747/95 is allowed and appellant Ramesh is acquitted of the charges levelled against him. His personal bond and security bond shall stand discharged. Criminal Appeal No. 810 and 863 of 1995 stand partly allowed to the extent that appellants Raj Kumar and Subhash are acquitted of the charges u/s 147 and 148 of Indian Penal Code. Consequently, Criminal Appeal No. 747/95 is allowed and appellant Ramesh is acquitted of the charges levelled against him. His personal bond and security bond shall stand discharged. Criminal Appeal No. 810 and 863 of 1995 stand partly allowed to the extent that appellants Raj Kumar and Subhash are acquitted of the charges u/s 147 and 148 of Indian Penal Code. Instead of their conviction under sections 147, 148 and 302, Indian Penal Code, they are convicted u/s 302/34 of Indian Penal Code and the conviction of Dilip is altered from u/s 302/149, Indian Penal Code to u/s 302/34 of Indian Penal Code. All the above named appellants are sentenced to life imprisonment u/s 302/34, Indian Penal Code. Appellants Subhash and Dilip are on bail. They are directed to surrender before the trial Court within 15 days. On their surrender, they be taken into custody to serve out the sentence awarded to them. In case, they do not surrender, as directed, their personal bond and bail bond shall stand cancelled and the trial Court shall proceed to take them in custody for serving out the sentence. A copy of the judgment be placed on record of Criminal Appeal No. 810 and 863 of 1995. Final Result : Allowed