Judgment R. C. CHAVAN, J. ( 1 ) TAKING exception to their conviction for murder of sayyad Usman, and voluntarily causing hurt to Mohammed Akil and Sayyad noor, and the resultant sentences of imprisonment for life under section 302 of the Penal Code and three years under section 324 of the Penal Code inflicted upon them, the accused in Criminal Case No. 598/1990 before Third Additional sessions Judge, Nagpur have preferred this appeal. ( 2 ) FACTS which led to prosecution of the appellapts are as under: the appellants as well as deceased Sayyad Usman and injured Akil son of mohammed Iqbal, and Mohd. Noor son of Sayyad Kasim and others resided in the same locality at Nagpur. There was a quarrel between Mohammed Alim and the accused on account of breaking of bricks. This led to the accused persons charging at Mohammed Alim with weapons like Gupti, knife, iron rod etc. The appellants, along with one Shabbir, attacked the victim and his relations. Accused no. 1 stabbed Sayyad Usman on the chest with a Gupti. Shabbir assaulted sayyad Noor with a knife and Manna @ Jiyauddin assaulted Mohd. Akil with dagger. Sayyad Usman who has sustained grievous injury was taken by Mohd. Akil and Sayyad Noor to Police Station from where Sayyad Usman was shifted to Mayo Hospital where he succumbed to his injuries. ( 3 ) ON a report by Sayyad Noor, an offence was registered and investigation commenced. In course of investigation, after performing inquest on the body of sayyad Usman it was sent for Post Mortem examination and the injured persons were got medically examined. Blood samples of victim were obtained, accused were arrested, their clothes were seized and so were the weapons. The property seized was sent to Forensic Science Laboratory for scientific examination. Statements of witnesses were recorded and on completion of investigation charge-sheet was sent to the Court of Chief Judicial Magistrate, Nagpur, who committed the case to the Court of Sessions at Nagpur. The learned Additional sessions Judge to whom the case was made over, framed charge of the offences punishable under sections 302 read with 34, 307 read with 34 and 324 read with 34 against all the accused/appellants and Sheikh Shabbir. All the accused pleaded not guilty and hence were put on trial. The learned Additional sessions Judge to whom the case was made over, framed charge of the offences punishable under sections 302 read with 34, 307 read with 34 and 324 read with 34 against all the accused/appellants and Sheikh Shabbir. All the accused pleaded not guilty and hence were put on trial. ( 4 ) THE prosecution examined in all ten witnesses in its endeavour to bring home the guilt of the accused. The defence of the accused was apparently that they were victims of assault and that the assailants injured themselves in course of the assault. After considering the prosecution evidence, in the light of defence raised, the learned Additional Sessions Judge acquitted the original accused No. 2 sheikh Shabbir and convicted present appellants for the offences punishable under sections 302 and 324 read with section 34 of the Penal Code and sentenced them, as aforementioned. Aggrieved thereby they have appealed to this Court. ( 5 ) WE have heard Adv. Mrs. Sirpurkar, learned counsel for appellant No. 1, adv. Habibuddin Ahmed, learned counsel for appellant Nos. 2 and 3 and Adv. Mujumdar, learned Additional Public Prosecutor for the State. With the help of the learned counsel, we reappraised the entire evidence in order to examine the correctness of the conclusions drawn by the learned trial Judge. ( 6 ) THE learned counsel for the appellants submitted that the entire investigation was tainted since P. W. 1 Sayyad Noor is son of a retired Head constable. According to the learned counsel, accused No. 2 Sheikh Shabbir, who was acquitted, was injured in the course of incident and the prosecution had not explained the injuries sustained by Sheikh Shabbir. The incident possibly occurred due to a sudden quarrel. The appellants had merely reacted to the situation and therefore, they are not guilty of the offences for which they were convicted. The learned counsel also submitted that there were discrepancies in the evidence, doubts about recovery of weapons and, since the prosecution case rested solely on the testimony of related witnesses, the appellants could not have been convicted. ( 7 ) NEEDLESS to say that the investigation cannot be said to be tainted merely because the complainant happened to be the son of a retired Head Constable. ( 7 ) NEEDLESS to say that the investigation cannot be said to be tainted merely because the complainant happened to be the son of a retired Head Constable. It would have to be shown that the investigation was tainted by pointing to specific steps in investigation which would show partisan character of the investigation. ( 8 ) IN this case, there are as many as six eye-witnesses, three of whom are injured. It is true that eyewitness P. W. 1 Sayyad Noor (complainant), P. W. Mohd. Akil (injured), P. W. 4 Sahista Parvin widow of Sayyad Usman, P. W. 5 mohammed Alim are related to each other and also related to the victim, but as has been observed in a catena of decisions, merely because the witnesses are related to the victim, it does not follow that they would depose falsely. Ordinarily relations of the victim would be interested in bringing the guilty to the book, rather than naming wrong persons as miscreants and screening real offenders. ( 9 ) THE incident took place at about 6. 30 p. m. on 5th July, 1990 i. e. virtually in a day light. All the participants in the fracas were well known to most of the witnesses. Therefore, there is no question of any mistaken identity. It is nobodys case that the witnesses and the appellants had any previous enmity in order to propel the witnesses to name the appellants as assailants. Therefore, unless it is shown that the testimonies of these witnesses suffer from any infirmity to warrant disbelief, like unnatural presence of the persons of the spot, deviations from the story which would make their testimonies suspect etc. , their testimonies cannot be discarded. Since all of them reside in the same vicinity, their presence at the spot is natural. The evidence, far from being discrepant, is so cohesive that the learned counsel for the appellant alleged that they were deposing in parrot like manner creating doubt that they were tutored and therefore not credible. It is not that the evidence of the above witnesses exhibits any orchestrated harmony to indicate that they were got up or tutored witnesses. There are minor deviations here and there which to not affect the pith of their versions. It is not that the evidence of the above witnesses exhibits any orchestrated harmony to indicate that they were got up or tutored witnesses. There are minor deviations here and there which to not affect the pith of their versions. ( 10 ) THE learned counsel for the appellants submitted that an independent eyewitness P. W. 7 Shafi had no doubt supported the prosecution case but had failed to properly identify the appellants. The witness had stated that accused shafiuddin/appellant No. 3 had assaulted Usman with Bichwa (Dagger ). Accused asimuddin/appellant No. 1 had hit Noor Mohammed with a knife on chest whereas accused Manna/appellant No. 2 had assaulted Mohd. Akil with Gupti on the waist. True it is that the witness had mixed up the assailants, victims and weapons, but this would neither make his evidence suspicious nor would it discredit the evidence of other prosecution witnesses. The discrepancies in the evidence of Mohd. Shafiuddin P. W. 7 would confirm that three appellants were involved in the assault on deceased Sayyad Usman and two prosecution witnesses, though he was unable to state which assailants with which weapon hit which victim. Doubts were sat at rest surprisingly in the cross-examination on behalf of accused Nos. 1,3 and 4. The witness stated that he did not know deceased "mohd. Noor" when the deceased was infact Sayyad Usman. He stated that he did not know the accused by their names. Though he resiled to say that he knew the accused by their names, he identified accused No. 1 as Shafiuddin, when accused No. 1 was infact, Asimuddin and Shafiuddin was accused No. 4. This would be consistent with the prosecution case that accused No. 1 had infact assaulted the victim Usman. It is thus, clear that the witness knew the participants in the assault by faces but did not know their names. Thus, mixed up version in the examination-in-chief, therefore, far from discrediting the confused account of p. W. 7 gives a ring of truth to the whole story. ( 11 ) AS rightly pointed out by the learned Additional Public Prosecutor, it is not that the prosecution rests on the evidence of only interested witnesses. P. W. 2 dinesh is also an eyewitness to the incident and has given a complete account of the assault by the appellants on the victims which does not warrant any disbelief. ( 11 ) AS rightly pointed out by the learned Additional Public Prosecutor, it is not that the prosecution rests on the evidence of only interested witnesses. P. W. 2 dinesh is also an eyewitness to the incident and has given a complete account of the assault by the appellants on the victims which does not warrant any disbelief. Considering this eyewitness account, which has been rightly relied on by the learned trial Judge, we have no hesitation to hold that the appellants had assaulted the victims. ( 12 ) ALL the eyewitnesses, have stated thus that accused No. 1 stabbed sayyad Usman. P. W. 9 Dr. Raje who conducted Post Mortem examination on the body of Sayyad Usman stated that there was incise wound over the right hand which was a very small flick. He also found penetrating wound over left side of chest over third rib which v/as cavity deep and which had penetrated left lung and heart. He proved notes of Post Mortem examination at Exh. 79. Gupti which had been seized during the course of investigation had been shown to Dr. Raje and dr. Raje opined, vide report Exh. 80, that the injury could have been caused by the said weapon. Dr. Raje stated that the injury was sufficient to cause death in the ordinary course of nature. ( 13 ) IT may thus, be seen that there was only one important injury to Sayyad usman ruling out possibility of the assault by all the three assailants on him. The account of incident given by the eyewitness would show that there was a quarrel over breaking of bricks. There was no previous enmity or feud indicative of any animosity harboured by the appellants against the victims. The quarrel led to scuffle wherein the appellants drew arms and assaulted the victim. Thus, there was no pre-meditation or any intentional design to cause injuries. In this situation it would be difficult to conclude that three accused persons shared any common intention to inflict murderous injuries on Sayyad Usman. Therefore, each of the appellants can be held guilty for his own actions and not for those of others. Therefore, the learned trial Judge was not justified in holding the appellants 2 and 3 also responsible for appellant No. 1s assault on Sayyad Usman. ( 14 ) INJURY Certificate of accused Sheikh Shabbir, who has been acquitted, is at Exh. Therefore, each of the appellants can be held guilty for his own actions and not for those of others. Therefore, the learned trial Judge was not justified in holding the appellants 2 and 3 also responsible for appellant No. 1s assault on Sayyad Usman. ( 14 ) INJURY Certificate of accused Sheikh Shabbir, who has been acquitted, is at Exh. 57. This shows that Sheikh Shabbir had four incise wounds on right parietal surface of 1/2" x 1/4" x skin deep and abrasion on right wrist +/2" in length. Certificate at Exh. 57 shows that four incise wounds were caused by hard, sharp edged object with multiple teeth. We are referring to this certificate only to indicate that the victims party also must have been armed with some weapons. Otherwise, the injury of Sheikh Shabbir could not be explained. ( 15 ) P. W. 1 Sayyad Noor, complainant, stated in paragraph 1 of his examination-in-chief itself that when accused No. 1 Asimuddin came armed with Gupti, Sayyad Usman rushed at accused Asimuddin, accused Asimuddin assaulted Sayyad Usman who fell down. The manner in which Sayyad Usman suffered assault, as described by P. W. 1 Sayyad Noor, would show that accused asimuddin may have, at that point of time, harboured an apprehension that sayyad Usman was charging at him and therefore, hit at Sayyad Usman. ( 16 ) THE incident thus occurred upon a sudden quarrel and would therefore, fall under exception (4) to section 300 of the Penal Code. Therefore, in our opinion, appellant No. 1 could not have been convicted for the offence of murder. In this case, since the blow was given in course of a sudden fight as a sequel to the sudden quarrel, it would be unrealistic to expect the participants to trade measured blows, just enough to avoid injuries. It would not be correct to impute intention to cause death, to appellant No. 1, though he had used a sharp weapon and the blow was on the chest. It may be seen that the blow on chest of a person who is immobilized can unmistakably point to an intention to cause death. It would not be correct to impute intention to cause death, to appellant No. 1, though he had used a sharp weapon and the blow was on the chest. It may be seen that the blow on chest of a person who is immobilized can unmistakably point to an intention to cause death. But, when one person is charging at another person who is free it would be difficult to attribute the intention to hit at a particular point of body since in case of a moving target blow may fall on an unintended part of body. Therefore, though the act which caused death may be attributed to accused No. 1, it would not be possible to attribute intention and hence, the case of appellant No. 1 would fall under section 304 Part - II of the Penal Code. ( 17 ) APPELLANT No. 3 Shafiuddin assaulted Sayyad Noor with a dagger and accused No. 2 Manna assaulted Mohd. Akil with a knife. P. W. I Sayyad Noor, p. W. 3 Mohd. Akil, P. W. 4 Shahista Parvin and P. W. 5 Mohd. Alim stated accordingly. The injury Certificate of Sayyad Noor, with requisiton Exh. 37, shows that there was a stab wound on the right Epigastrium 3/4" x 1/4" x muscle deep. There was incise wound on 2nd and 3rd finger of palmer surface, which, according to the Medical Officer, could be caused by hard and sharp object. Injury Certificate of Mohd. Akil with requisition Exh. 38, shows that there was stab wound 1/2" x 1/2" with skin deep which could have caused by hard, pointed and sharp object. This evidence would indicate that appellant No. 3 Shafiuddin had caused injury to P. W. 1 Sayyad Noor with a sharp object and appellant no. 2 Manna @ Jiyauddin had caused injury to P. W. 3 Mohd. Akil with a sharp weapon. Appellant Nos. 2 and 3 would therefore, have to be held guilty of offence punishable under section 324 simplicitor since it cannot be said that they shared any common intention in the event which erupted in sudden quarrel. ( 18 ) THIS takes us to the question of sentences to be imposed. The context in which the incident took place would show that there was no previous enmity which led to the incident. ( 18 ) THIS takes us to the question of sentences to be imposed. The context in which the incident took place would show that there was no previous enmity which led to the incident. A very petty quarrel on account of breaking of bricks led to this unfortunate killing and injuring two persons. All the participants reside in the same locality and we have been told by the learned counsel for the appellants that even after post conviction bail granted about ten years ago, parties are living in peace. The appellants were 18,17 and 18 years old respectively when the charge was framed. They did not have any previous criminal history. Therefore, infact, had they not been convicted at that time for murder they would have qualified for being considered for treatment under the Probation of offenders Act since they were under 211 years of age. The assault by appellant no. 1 comprised of a single blow. Thus, there are no aggravating circumstances. ( 19 ) CONSIDERING all these aspects, ordinarily appellant No. 1 could be sentenced to suffer R. I. for three years for the offence punishable under section 304 Part-n of the Penal Code. The record shows that he was in custody for two years eight months and 14 days during pendency of the trial and after conviction, till the sentence was suspended. Had he been sentenced to suffer imprisonment for three years he would have been also entitled for remission and would have been out of jail roughly after serving period equivalent to that during which he had been in custody, or at worst a few days more. Considering his age and the fact that we are hearing this appeal almost 10-1/2 years after his conviction, we feel that no useful purpose will be served by sending him again to the prison to serve few days, if any, after calculating remission. In our opinion, the sentence of rigorous imprisonment for two years and eight months with a fine of Rs. Five thousand Only for appellant No. 1 would meet the ends of justice. ( 20 ) APPELLANT Nos. 2 and 3 who have been held guilty of offence punishable under section 324 of the Penal Code have been in custody for about seven months and fourteen days and seven months and thirteen days respectively. Five thousand Only for appellant No. 1 would meet the ends of justice. ( 20 ) APPELLANT Nos. 2 and 3 who have been held guilty of offence punishable under section 324 of the Penal Code have been in custody for about seven months and fourteen days and seven months and thirteen days respectively. Considering their ages, the manner in which the incident occurred, absence of previous criminal history and also the fact that their appeal has been heard after a period of 101/2 years, we feel that they too may not be sent to jail again. Therefore, they could be sentenced to Rigorous imprisonment for Seven Months each with a fine of Rs. Two Thousand and Five Hundred only, each. ( 21 ) SINCE Sayyad Usman met with his death in the assault in which three appellants participated, though appellant Nos. 2 and 3 had not inflicted any injury on Sayyad Usman, we believe that some compensation to the victims widow is warranted. Therefore, it would be appropriate if the fine recovered is paid to the victims widow as compensation. ( 22 ) IN the result, the appeal is partly allowed. The conviction of the appellant Nos. 1 to 3 for the offence punishable under section 302 read with 34 of the Penal Code is set aside. Instead, only appellant No. 1 is convicted for the offence punishable under section 304 Part-II of the Penal Code and sentenced to suffer rigorous imprisonment for two years and eight months and also to pay a fine of Rs. Five Thousand only i/d to suffer r. I. for one year. ( 23 ) CONVICTION of appellant No. 1 for the offence punishable under section 324 of the Penal Code is set aside. Conviction of appellant Nos. 2 and 3 for the offence punishable under section 324 of the Penal Code is maintained, but their sentence is reduced to R. I. for seven months and a fine of Rs. Two Thousand five Hundred each only i/d further R. I. for six months each. ( 24 ) THE appellants were in jail for some period during trial and after their conviction till the sentences were suspended. According to the record Appellant no. Two Thousand five Hundred each only i/d further R. I. for six months each. ( 24 ) THE appellants were in jail for some period during trial and after their conviction till the sentences were suspended. According to the record Appellant no. 1 was in custody for 2 years 8 months and 14 days, Appellant No. 2 was in custody for 7 months and 14 days and Appellant No. 3 was in custody for 7 months and 13 days i. e. for longer than the substantive sentences imposed. The period of detention in custody shall be set off against substantive sentences, and if they deposit fine by 29th October, 2005, they need not be taken in custody. ( 25 ) THE appellants are granted time till 29th October, 2005 to deposit the fine in the trial Court. On such deposit, the amount of fine, i. e. the sum of rs. 10,000/-, shall be paid to the victims widow Smt. Shahista Parveen. Appeal partly allowed.