Honble SHIV KUMAR SHARMA, J.–The four appellants in this appeal namely, Ishwar Singh, Rajendra Singh, Basti Ram and Rang Rao have challenged the judgment dated October 30, 2001 of the learned Additional Sessions Judge (Fast Track) Jhunjhunu whereby they have been convicted and sentenced as under:- U/s. 302/34 IPC Each to suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer six Months Rigorous Imprisonment. U/s. 341 IPC Each to suffer Simple Imprisonment for one month. U/s. 323/34 IPC Each to suffer Simple Imprisonment for six months. U/s. 324/34 IPC Each to suffer Rigorous Imprisonment for one year and fine of Rs. 200/-, in default to further suffer three months Simple Imprisonment. The sentences were ordered to run concurrently. (2). The prosecution case as unfolded during trial is that informant Om Prakash (PW.3) submitted written report (Ex.P-11) to the SHO Police Station Khetri at camp Ganesh Pura on March 23, 1998 at 11.30 AM with the averments that his father Joravar Singh was killed by appellants Basti Ram, Rajendra and Ishwar Singh infront of the house of appellant Rang Rao Master. In the course of incident Hari Ram, Ram Prakash, wife of Hari Ram and Rajesh Kumar also sustained injuries. Case under sections 302/34 and 323/341 IPC was registered and investigation commenced. Ram Prakash who was seriously injured and was admitted to Khetri City Hospital subsequently died and dead bodies of Joravar Singh and Ram Prakash were subjected to autopsy. Statements of the witnesses were recorded. Site plan was drawn. Appellants were arrested. Weapons allegedly used in commission of offence got recovered at the instance of the appellants. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Jhunjhunu. Charges under Sections 341, 302 in the alternative 302/34, 323 in the alternative 323/34 IPC were framed against the appellants who denied the charges and claimed trial. As many as 17 witnesses were examined by the prosecution in support of its case. In their explanation under Section 313 Cr.P.C. the appellants pleaded innocence. Ishwar Singh and Rajendra Singh stated that on March 23, 1998 at 8 AM when they were in their house and taking tea, Jora Ram and Ram Prakash armed with pharsi and axe, came to their house and started teasing the ladies. In their explanation under Section 313 Cr.P.C. the appellants pleaded innocence. Ishwar Singh and Rajendra Singh stated that on March 23, 1998 at 8 AM when they were in their house and taking tea, Jora Ram and Ram Prakash armed with pharsi and axe, came to their house and started teasing the ladies. When they made attempt to intervene, they were given beating. At that time Rang Rao and Basti Ram were on duty and not present in the house. Basti Ram stated that on the date of incident he was posted as Chowkidar in the Irrigation Department Narnol. Rang Rao stated that he was not present in the house at the time of incident. He was Physical Training Instructor in the school at village Papurna and left his village Ganeshpura on March 16, 1998. The Head Master of the school on March 21, 1998 directed him not to leave Head Quarter as question papers of Board Examination were about to reach. At village Papurna he had rented a house and he used to reside in that house. On March 23, 1998 ladies came from village Ganeshpura and informed him at village Papurna that Jora Ram and Ram Prakash entered their house and had a quarrel. In support of their defence the appellants got examined five witnesses. Learned trial Judge on hearing final submission convicted and sentenced the appellants as indicated herein above. (3). The case of the prosecution rests on the testimony of Rajesh Kumar (PW.1), Sumer Singh (PW.9), Hari Ram (PW.10) and Kailash Devi (PW.11), Dr. B.S. Dadarwal (PW.12) performed autopsy on the dead bodies of Ram Prakash and Jorawar Singh and as per post mortem reports (Ex.P-18 and 19) found following ante mortem injuries:- RAM PRAKASH (EX.P-18):- ``(i) Head (Scalp & skull): One incised stitched wound size 9" long covering the area from the left ear lbute extending upwards anterior part of left temporal bone & left Parietal bone reaching upto the mind line of Head. On opening the stitched wound cutting the left temporal & left Parietal bone in Two-Two piece of each bones cutting the under membranes (all three) size 6" & also Incised wound in left cerebral hemisphere. Size 6" x 1" x 1" coming brain matter through the wound clotted blood present under the scalp membranes & fractures piece of left tempero & left Parietal bone fradise end & also in Brain matter. Size 6" x 1" x 1" coming brain matter through the wound clotted blood present under the scalp membranes & fractures piece of left tempero & left Parietal bone fradise end & also in Brain matter. (ii) One incised stitched wound on left side of chin & left mandible 4" long. On opening the stitches it is 1/2" x 1/4" (wide depth). (iii) One Incised wound on left shoulder. Medial to the left shoulder joint size 2" x 1/2" x 1/4" vertical. (iv) One Incised wound size 1" x 1/2" x 1/2" on lateral aspect of left arm oblique. (v) One Incised wound on medial & upper part of hip region oblique 4" x 1,1/2" x 1/2". (vi) One Abrassion 1" x 1/2" x 1/8" on medial part of Rt. clavicle bone region. (vii) One Abrassion 2" x 1/4" x 1/8" on dorsal aspect of Rt. fore arm. The cause of death was shock & external & Internal hemorrhage due to Brain injury, injuries & fractures (left Hamishere). JORAVAR SINGH (Ex.P-19):- ``(i) One Incised wound 1" x 1/2" x bone deep on mid part of forehead, oblique 1,1/2" above. The root of nose. (ii) One Incised wound on Rt. Fronto Parietal region oblique size 1,1/2" x 1/2" x bone deep. 4" above the Rt. tempero mandipular joint. oblique. (iii) One Incised wound 2" x 2" x bone deep on upper part of Forehead covering the both frontal bone Horizontal. (iv) One Incised wound on occipital region, vertical size 3" x 1,1/2" x bone deep. (iv) One Incised wound 4" x 1/2" x 4"on Rt. Parieto occipital region Horizontal underlying bone is fractures in three pieces (Rt. Parietal bone). Laceration of underlying membranes below the fractures & lacerated wound in Rt. hemisphere of Brain below the fractured bone size 2" x 1/2" x 1/4" Horizontal in shape. (v) One Incised wound on Rt. side of neck behind Rt. ear lobute size 4" x 2" x 3" cutting the all structures of neck (Rt. side) viz. muscles, nerves & blood vessels. Horizontal in shape. (vi) One Incised wound on rt. side of face. overing the area between the Rt. mandible angle & Rt. angle of mouth size 3" x 1/2" x 1/4". (vi) One Incised wound between the lower jaw & chin encircling both side of chin. side) viz. muscles, nerves & blood vessels. Horizontal in shape. (vi) One Incised wound on rt. side of face. overing the area between the Rt. mandible angle & Rt. angle of mouth size 3" x 1/2" x 1/4". (vi) One Incised wound between the lower jaw & chin encircling both side of chin. Size 7" x 2,1/2" x 2,1/2" cutting the mandible between lower jaw and chin sparing the tongue. (vii) One Incised wound 4" x 1/2" x 1/4" on upper part of sternum extending on both sides of sternum Horizontal. (viii) One Abrassion on Rt. hand dorsally below Rt. thumb 1" x 1/2" x 1/8". The cause of death was shock & hemorrhage due to injuries, fractures & Brain injury. (Rt. hemisphere). Kailash Devi (PW.11) also sustained injuries, which as per injury report (Ex.P-20) are as under:- 1. Incised wound 4cm x 2cm on the web between left thumb & index finger 2. Incised wound 4" x 2" x bone deep. on Inter Parietal region vertical. As per injury report (Ex.P-21) Hari Ram (PW.10) received following injuries:- 1. Incised wound 15cm x 2.5cms x 1cm extending from behind the left ear lobute towards left marked region to the mid part of occipital bone in sagital suture line. 2. One contusion 1cm x 3cm on left side of back of chest at lower part. 3. Lacerated wound 1cms x 0.5cms Over Rt. fore arm in mid region. 4. Lacerated wound 1cms x 0.5cms Over ant. aspect of left ear lobute. (4). Mr. Udai Pradeep Gaur, learned counsel for the appellants canvassed that trial court seriously erred in ignoring the fact that the investigation commenced before registration of the FIR. SHO left police station Khetri on receiving telephonic information which according to Ram Avtar (PW.17) received at 8 AM on March 23, 1998. The telephonic information was incorporated in Rojnamcha, but it was deliberately concealed and this fact gives rise to the inference that if Rojnamcha would have been produced it would have supported the defence version. Learned counsel further urged that Rang Rao was not shown in FIR as assailant. After the SHO reached at the spot he took 3 hours in making out story and suppressing true genesis of the case. Learned counsel further urged that Rang Rao was not shown in FIR as assailant. After the SHO reached at the spot he took 3 hours in making out story and suppressing true genesis of the case. It was next contended that the incident occurred infront of the house of appellant and defence of the appellants Rajendra and Ishwar in regard to their right of private defence was not properly appreciated. So also the plea of alibi advanced on behalf of the appellants Rang Rao and Basti Ram was not properly considered. It was further urged that non production of Rameshwar, on whose information FIR was lodged, goes in the root of the matter and was fatal to the prosecution case. (5). Per contra, Mr. Pratap Singh learned Public Prosecutor and Mr. M.K. Kaushik, learned counsel for the complainant supported the impugned judgment and contended that the testimony of the eye witnesses was rightly relied on. Hari Ram (PW.10) and Kailash Devi (PW.11) were the eye witnesses and their presence at the time of occurrence could not be doubted. The defence failed to probabilise the pleas of right of private defence and alibi and the said pleas were rightly rejected. (6). We have considered carefully the entire evidence of the case and various facts attended upon the two murders. Hari Ram (PW.10) and Kailash Devi (PW.11) are the injured eye witnesses. In his deposition Hari Ram stated that on the fateful day when Jora Ram had gone to Johad (water pond), four brothers namely, Rajendra, Basti Ram, Ishwar and Rang Rao started beating him. Ishwar inflicted two blows with axe on the head of Jora Ram as a result of which he fell down, thereafter Rang Rao gave lathi blow on his hand and Rajendra and Basti Ram inflicted injuries on the face of Jora Ram with Barchhis. at that juncture when Ram Prakash intervened all the four brothers beat him. Basti ram gave injury on his left ear and hand. Rajendra caused injury on check and shoulder and Rang Rao inflicted two lathi blows over his right ribs and right hand. When Hari Ram made attempt to intervene Rajendra gave blows with Barchhi over his head and left ear and Rang Rao inflicted blows with lathi on his head and hands. Rajendra caused injury on check and shoulder and Rang Rao inflicted two lathi blows over his right ribs and right hand. When Hari Ram made attempt to intervene Rajendra gave blows with Barchhi over his head and left ear and Rang Rao inflicted blows with lathi on his head and hands. When his wife Kailashi threw herself on Hari Ram to protect him, Basti Ram gave blow with Barchhi over her head and Ishwar caused injury with axe on her hand. Sumer Singh, Rameshwar and Rajesh, who had witnessed the occurrence, were threatened by the four assailants with dire consequences. Kailash Devi (PW.11), Rajesh Kumar (PW.1) and Sumer Singh (PW.9) corroborated the testimony of Hari Ram. Kashi Ram (PW.16), who on the relevant date was S.H.O. Police Station Khetri, got recovered axe and Pharsis at the instance of Ishwar Singh, Basti Ram and Rajendra. (7). As already noticed as many as five defence witnesses were examined by the appellants at the trial. Mahavir Singh (DW.1) was posted as Head Master in the Govt. Secondary School Papurna on March 23, 1998. In his deposition he stated that on March 23, 1998 Rang Rao, PTI met him in the school at 9 AM. Rang Rao got his presence registered in the Attendance Register (Ex.D-1) at 9.30 AM. Around 10.45 AM two ladies came to meet Rang Rao and informed him that there was a quarrel in his house. At 11 AM Rang Rao handed over leave application (Ex.D-7) to him. Vide Ex.D-6 Rang Rao was permitted to leave head quarter. In the cross examination Mahavir Singh however admitted that leave application was not in the hand writing of Rang Rao but signature and date were put by Rang Rao in his own hand writing. Radhey Shyam (DW.2) deposed that Rang Rao, PTI was his tenant in his house situated at village Papurna since July, 1995. In the evening of March 22, 1998 Rang Rao was in the said house and he met him on March 23, 1998 at 6 AM. Around 8.45 AM Rang Rao proceeded to school. In the cross examination Radhey Shyam stated that he did not issue any receipt in regard to rent of the said house. No rent deed was ever executed by him. Ram Gopal (DW.3) deposed that on March 23, 1998 he was posted as mate in the Pump house at Narnaul. Around 8.45 AM Rang Rao proceeded to school. In the cross examination Radhey Shyam stated that he did not issue any receipt in regard to rent of the said house. No rent deed was ever executed by him. Ram Gopal (DW.3) deposed that on March 23, 1998 he was posted as mate in the Pump house at Narnaul. He was on duty on the said day from 6 AM to 2 PM and Basti Ram was Chowkidar in the Irrigation Department. He was on duty on March 23, 1998 from 6 AM to 2 PM. In the attendance register (Ex.D-9) the name of Basti Ram was mentioned. Mahavir Singh (DW.4) deposed that he was posted as Junior Engineer in the Divisional Office of Irrigation Department at Narnaul on March 23, 1998. On the said day Basti Ram was on duty from 6 AM to 2 PM. He got attendance register checked. Leelawati (DW.5), wife of Basti Ram, deposed that Ram Prakash and Jorawar having Barchhi and axe came to their house and started abusing them. At that time Rajendra and Ishwar were taking tea. She and her Devrani escaped and went to Papurna to meet Rang Rao, PTI in the school. They reached there around 11 AM and informed Rang Rao about the incident occurred in the house. Rang Rao then submitted the application before the Head Master and after obtaining leave came with her to Khetri. (8). Before adverting to the submissions advanced on behalf of the appellants we straightway proceed to consider the case law placed for our perusal. (9). In Maruti Rama Naik vs. State of Maharashtra (1), Honble Supreme Court indicated that evidence of a witness though injured in the incident but had not named accused as assailants of deceased and there was delay in recording his 161 Cr.P.C. statement despite opportunity to record it on day of incident itself, could not be taken as basis for conviction without corroboration. (10). In Kewal Singh and Ors. vs. State of Punjab (2), it was held that when both parties came prepared to fight it would not necessary to go into question whether any of them exercised right of private defence and culpability of accused was to be determined by their individual acts. (11). In Babu Khan and Another vs. State of Rajasthan (3), it was held that contradictory statements of witnesses cannot be relied on. (12). (11). In Babu Khan and Another vs. State of Rajasthan (3), it was held that contradictory statements of witnesses cannot be relied on. (12). In Sekar alias Raja Sekharan vs. State of Tamil Nadu, it was held that the plea regarding right of private defence cannot be based on surmises and speculation. (13). In Cherlopalli Cheliminabi Saheb and Another vs. State of A.P. (4), it was held that altercation turned out to fight in which members of both families joined and somebody stabbed deceased. The fight was not preplanned and there is no material to show common intention, therefore section 34 not attracted. (14). In case of Zafar vs. State of U.P. (5), it was held that omission in FIR is significant, though not singlely but coupled with doubtful features of the case the accused was entitled to be acquitted. (15). In Babu Ram and Another vs. State of U.P. (6), it was held that the court should cautious while evaluating the testimony of eye witnesses who are relative and inimical. (16). In Harijana Thirupula and Others vs. High Court of A.P. Hyderabad (7), it was held that when there is nothing on record to show that accused had premeditated or had intention to kill deceased the conviction of accused with the aid of Sec. 34 is not proper. (17). In Ramji Singh and Another vs. State of Bihar (8), it was indicated that the common intention can be formed at the spot. At times it is difficult to get direct evidence of pre-concert of minds. The common intention can be gathered from the circumstances and the manner in which assault is carried out. (18). In assailing the findings of guilt arrived at by the trial judge the first contention urged by learned counsel for the appellants was that investigation commenced before registration of FIR. The telephonic information incorporated in Rojnamcha was deliberately withheld and written report (Ex.P-11) was not the FIR but only a statement falling under Section 162 Cr.P.C. We do not find any substance in this submission. Kashi Ram SHO (PW.16) in his deposition stated that some unknown person informed him over telephone that murders were committed in village Ganeshpura and on receiving the said information he along with ASI Narendra Singh and Constable Sher Singh proceeded to the spot. Kashi Ram SHO (PW.16) in his deposition stated that some unknown person informed him over telephone that murders were committed in village Ganeshpura and on receiving the said information he along with ASI Narendra Singh and Constable Sher Singh proceeded to the spot. It is thus evident that information received by Kashi Ram SHO over telephone was cryptic and it can not be termed as FIR. In a similar situation their Lordships of the Supreme Court in Ram Singh Baiji Jadeja vs. State of Gujrat (9), indicated thus:- ``. . . any telephonic information about commission of a cognizable offence irrespective of the nature and details of such information can not be treated as First Information Report. This can be illustrated. In a busy market place, a murder is committed. Any person in the market, including one of the shop owners, telephones to the nearest police station, informing the officer in charge, about the murder, without knowing the details of the murder, the accused or victims. On the basis of that information, the officer in charge reached the place where the offence is alleged to have been committed. Can it be said that before leaving the police station, he has recorded the First Information Report? In some cases the information given may be that a person has been shot at or stabbed. It can not be said in such a situation, the moment the officer in charge leaves the police station, the investigation has commenced. In normal course, he has first to find out the person who can give the details of the offence, before such officer is expected to collect the evidence in respect of the said offence. (19). We also do not find any merit in the second contention of the learned counsel for the appellants that non examination of Rameshwar on whose information FIR (Ex.P-11) was lodged, is fatal to the prosecution case. The Apex Court in Babu Ram vs. State of U.P. (10), propounded that non examination of any eye witness can not be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. An effort should be made at appreciating the worth of such evidence as has been adduced. The Apex Court in Babu Ram vs. State of U.P. (10), propounded that non examination of any eye witness can not be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eye witnesses examined in case is found to be trustworthy and worth being relied on so as to form safe basis for recording a finding of guilt of the accused persons then non examination of yet another witness who would have merely repeated the same story as had already been narrated by other reliable witnesses, would not cause dent or infirmity in the prosecution case. In the case of hand, as already noticed, the prosecution examined four eye witnesses namely, Rajesh Kumar (PW.1), Sumer Singh (PW.9), Hari Ram (PW.10) and Kailash Devi (PW.11). Out of these four witnesses Hari Ram and Kailash Devi are injured witnesses. Their Lordships of the Supreme Court in Sardul Singh vs. State of Punjab (11), indicated that the presence of witness, who received injuries during the course of incident can not be doubted. In Bankiya vs. State of Maharashtra (12), it was held that the presence of the injured witness at the scene of occurrence can not be doubted and being victim himself he would not leave out real assailants and substitute them with innocent persons. (20). The next submissions of learned counsel for the appellants was that deceased Jorawar and Ram Prakash were the aggressors and they came to the house of appellants armed with deadly weapons. Learned counsel took us to the site plan to show that Jorawar who did not reside in the vicinity of the appellants found lying dead in front of the house of the appellants. On carefully considering the submission, we find that there was a Johad (water pond) in front of the house of the appellants and all the villagers used to visit said Johad with cows and buffaloes for the purpose of quenching their thrust. There was nothing unusual if Jorawar Singh and Ram Prakash came near the Johad on the date of incident. Presence of Rajesh Kumar (PW.1), Sumer Singh (PW.9), Hari Ram (PW.10) and Kailash Devi (PW.11) near the Johad at the time of incident was quite natural. There was nothing unusual if Jorawar Singh and Ram Prakash came near the Johad on the date of incident. Presence of Rajesh Kumar (PW.1), Sumer Singh (PW.9), Hari Ram (PW.10) and Kailash Devi (PW.11) near the Johad at the time of incident was quite natural. We do not find any force in the submission of learned counsel. It is rather strange and inexplicable that when Jorawar and Ram Prakash came armed with deadly weapons why any one from the accused party did not receive a single injury. Even otherwise mere presence of injuries on the accused persons is also not sufficient to show that a right of private defence of persons was available. In considering the right of private defence the case has to be judged in the back ground of all the available circumstances, antecedent to the incident, during the incident and post incident. On scrutinising the prosecution evidence we find that no right of private defence is available to the appellants. The evidence of Hari Ram, Kailash Devi, Rajesh Kumar and Sumer Singh inspires confidence. The witnesses were examined at length, but their testimony could not be shattered. The embellishments that could be extricated are of minor nature and do not go to the root of the case. Honble Supreme Court in Dharmendra Singh vs. State of Gujrat (13), observed that if prosecution evidence as a whole rings true and inspire confidence then despite the contradictions, conviction can be recorded. We also do not find any merit in the contention of learned counsel that the prosecution could not establish the motive behind the commission of the offence. No proof can be expected in all cases as to how mind of accused worked in a particular situation. Some time it may appear that motive established is a weak one that by itself is not sufficient to lead any inference adverse to the prosecution (Nathuni Yadav vs. State of Bihar) (14). (21). The manner in which assault was carried out leaves no manner of doubt in our mind that the appellants acted with intention to kill deceased Jorawar Singh. When Ram Prakash intervened the appellants continued to cause the injuries. Hari Ram, another intervenor was also beaten up by them. His wife Kailash Devi threw herself on Hari Ram to protect him, but the appellants did not stop from inflicting injuries. When Ram Prakash intervened the appellants continued to cause the injuries. Hari Ram, another intervenor was also beaten up by them. His wife Kailash Devi threw herself on Hari Ram to protect him, but the appellants did not stop from inflicting injuries. All these facts show their pre-determination to kill the deceased. Had their intention been not to kill the deceased, they would have stopped when the intervenors intervened. The sequence of events which unfolded during the course of occurrence clearly indicate the pre-determined minds of the appellants to kill the deceased. The common intention of the appellants to kill the deceased can be gathered from the facts and circumstances and the manner in which assault was carried out. (22). Turning on to the plea of alibi raised on behalf of appellants Rang Rao and Basti Ram, when we look at the statements of defence witnesses we find that they do not inspire confidence. Mahavir Singh (DW.1) the Head Master, admitted that leave application (Ex.D-7) was not in the hand writing of Rang Rao. He could not explain that if Rang Rao got his presence registered in the attendance register at 9.30 AM on March 23, 1998 and handed over leave application to him, then why the application was not in his hand writing? who wrote the application? Testimony of Radhey Shyam (DW.2) also does not appear trustworthy in absence of rent deed and rent receipts. Statements of Ram Gopal (DW.3) and Mahavir Singh (DW.4) are also not of sterling worth. Possibility of putting the signatures on the attendance registers by Rang Rao and Basti Ram afterwards can not be ruled out. We find it difficult to believe that Leelawati (DW.5) escaped from house with her Devrani and went to village Papurna to meet Rang Rao. The defence introduced by the appellants appears to be after thought. All the defence witnesses are interested witnesses and their testimony was rightly rejected by the trial court. Participation of Rang Rao and Basti Ram along with Ishwar and Rajendra in committing the crime is established by the prosecution beyond reasonable doubt. The FIR was lodged by Om Prakash, who was not the eye witness and if no role was assigned to Rang Rao in the FIR, it hardly affects the trustworthiness of the statements of the eye witnesses who specifically described the part played by each appellant. The FIR was lodged by Om Prakash, who was not the eye witness and if no role was assigned to Rang Rao in the FIR, it hardly affects the trustworthiness of the statements of the eye witnesses who specifically described the part played by each appellant. We are satisfied that all the four appellants took part in the commission of the crime and they have rightly been convicted and sentenced. (23). In the aforesaid back ground, we find no merit in the appeal and it stands dismissed.