M. CHAUDHARY, J. Since Criminal Appeal No. 1237 of 1998, Sobh Nath & Ors. v. State of U. P. and Government Appeal No. 2997 of 1998, State of U. P. v. Lallu @ Rama Shankar Shukla & Ors. , have arisen out of one and the same judgment and order dated 2nd of July, 1998 passed by XI Additional Sessions Judge, Gorakhpur in Sessions Trial No. 128 of 1989, State v. Sobh Nath & Ors. , they have been taken up and heard together and judgment shall be placed on the record of Criminal Appeal No. 1237 of 1998, Sobh Nath & Ors. v. State of U. P. , which is leading one. 2. By the impugned judgment dated 2nd of July, 1998 passed in Sessions Trial No. 128 of 1989 accused Sobh Nath, Siddh Nath and Asheshar Nath convicted under Section 147 IPC and Section 302 read with 149 IPC were sentenced to rigorous imprisonment for a period of six months and imprisonment for life respectively thereunder and accused Lalita and Girish convicted under Section 148 IPC and Section 302 read with Section 149 IPC were sentenced to rigorous imprisonment for one year and imprisonment for life respectively thereunder. All the five accused abovenamed were also convicted under Sections 323, 324 and 325 each read with Section 149 IPC and sentenced to rigorous imprisonment for three months, one year and two years respectively thereunder. Accused Harish Chandra, Lallu @ Rama Shankar and Roop Narain @ Devendra were acquitted of the charge levelled against them. 3. Since accused appellant Siddh Nath was reported having died appeal filed on his behalf stood abated vide order dated 12-9-2005. 4. Brief facts giving rise to these appeals are that Sobh Nath, Siddh Nath and Asheshar Nath were real brothers residing at village Digghi, police station Harpur Budhat, District Gorakhpur. Lalita Prasad, Dhruv Chand and Roop Narain are the sons of Sobh Nath and Lallu, Rama Shankar and Devendra that of Siddh Nath. Girish and Harish Chandra are sons of Asheshar Nath. Ram Narain, Suraj Narain and Shiv Poojan were real brothers. Ghan Shyan, Kaushal, Radhey Shyam and Satish were sons of Shiv Poojan and Shravan Kumar is the son of Ram Narain. At the relevant time Satish, cousin of Shravan Kumar was studying in 10th class in High School Rampur Akhara. Girish and Harish Chandra are sons of Asheshar Nath. Ram Narain, Suraj Narain and Shiv Poojan were real brothers. Ghan Shyan, Kaushal, Radhey Shyam and Satish were sons of Shiv Poojan and Shravan Kumar is the son of Ram Narain. At the relevant time Satish, cousin of Shravan Kumar was studying in 10th class in High School Rampur Akhara. Dhruv Chand, son of Sobh Nath was also studying in 10th class in Janta High School Khajani. On 16th of November, 1987 some quarrel took place between Satish Kumar on one hand and Dhruv on the other while they were going to the school. Satish complained regarding the said dispute to his elder brother and thereon that very noon Lalita went to the house of Shravan Kumar and started hurling abuses. He also threatened that wherever he would see Satish he would kill him. In the evening of 16th of November, 1987 Shravan Kumar and his family members were ploughing their field situate in the north of abadi at village Diggha. At about 5. 00 p. m. Sobh Nath, Siddh Nath, Lalta, Roop Narain, Girish, Harish Chandra and Lallu having lathis and shovels were also ploughing their fields situate nearby at village Diggha. At about 5. 00 p. m. as Satish was returning back to his home from the school and reached there, sighting him Lalita shouted that he had come back and should be killed and then all the persons abovenamed pounced upon him and started giving him blows with lathis. Immediately Shiv Poojan and his sons Ghan Shyam and Kaushal rushed for rescue of Satish and then the miscreants also gave blows to them with their respective weapons. Sobh Nath was about to decapitate Satish but in the meanwhile Narvada, Ram Pyarey, Lal Chand and Jai Prakash Pandey rushed to the scene of occurrence and sighting them the miscreants fled away. Then Shravan Kumar with the help of others taking all the four injured rushed to the District Hospital Gorakhpur in a jeep. All the four injured were medically examined there. Since condition of Satish and Shiv Poojan was quite critical they were admitted in the Hospital. Then Shravan Kumar scribed report of the incident and went to police station Sikriganj situate at a distance of some 15 kms from village Diggha and handed over written report of the occurrence to the police there at 2. Since condition of Satish and Shiv Poojan was quite critical they were admitted in the Hospital. Then Shravan Kumar scribed report of the incident and went to police station Sikriganj situate at a distance of some 15 kms from village Diggha and handed over written report of the occurrence to the police there at 2. 45 a. m. the same night. The police registered a crime against the accused under Sections 147, 148, 149, 323, 307 and 504 IPC. Investigation of the crime was entrusted to SI Gaya Prasad Singh who rushed to the scene of occurrence. 5. Injured Shiv Poojan was medically examined by Dr. M. K. Saxena who was on emergency duty in the Hospital at 8. 00 p. m. His medical examination revealed below noted injuries on his person: (1) Lacerated wound 4 cm x 1/2 cm x scalp deep on right side of head 8 cm above right ear vertical to nose. (2) Lacerated wound 5 cm x 1/4 cm x scalp deep 2 cm in front to injury No. 1 placed horizontally. (3) Lacerated wound 1. 5 cm. x 1/3 cm x scalp deep on right lateral side of forehead upper part placed horizontally. (4) Contused traumatic swelling 10 cm x 8 cm x on right side of face middle and interior part, kept under observation. (5) Contused traumatic swelling 2 cm x 1 cm on the base of nose medial part, kept under observation. The doctor opined that all the injuries were caused by some blunt object and fresh in duration. Condition of the injured was low and pulse feeble and he was unconscious. Advised X-ray of skull. 6. Injured Satish was medically examined by the doctor at 8. 15 p. m. the same evening. His medical examination revealed below noted injuries on his person : (1) Lacerated wound 4 cm x 1/2 cm x bone deep on left side of head about 4 cm above the left ear. (2) Lacerated wound 3-1/2 cm x 1/2 cm x scalp deep on head about 4-1/2 cm above the left eye brow medial end. (3) Incised wound 2-1/2 cm x 1/2 cm x scalp deep on left side of head about 7-1/2 cm above the left eye brow. (4) Lacerated wound 1/2 cm x 1/4 cm x skin deep on left eyelid upper. (3) Incised wound 2-1/2 cm x 1/2 cm x scalp deep on left side of head about 7-1/2 cm above the left eye brow. (4) Lacerated wound 1/2 cm x 1/4 cm x skin deep on left eyelid upper. (5) Lacerated wound 5 cm x 1/2 cm x scalp deep on right side of Occipital region 11 cm above the right ear. (6) Lacerated wound 5-1/2 cm x 1/3 cm x scalp deep on head about 14 cm above the right ear. (7) Lacerated wound 2 cm x 1/2 cm x skin deep above left angle of mouth. The doctor opined that all the injuries except injury No. 3 were caused by some blunt object and injury No. 3 by some sharp weapon and all were fresh. General condition of the injured was very low. Advised X-ray of skull. 7. Both the injured were admitted in the Hospital and the police was informed. 8. Medical examination of Ghan Shyam by the doctor at 8. 30 p. m. the same evening revealed below noted injuries on his person: (1) Lacerated wound reversed shaped on left side of forehead about 8-1/2 cm x 1/2 cm x scalp deep about 3 cm above left eye brow. (2) Contused swelling 4 cm x 1 cm on back of middle third of left forearm. (3) Contusion 3 cm x 1 cm on front of anterior aspect of upper third of right forearm. Complained of pain in left hand, right hand and back. No external mark of injury detected. The doctor opined that all the injuries were caused by some blunt object and fresh in duration. He advised X-ray of right and left forearm. X-ray of left hand of Ghan Shyam revealed fracture of ulna bone. 9. Medical examination of injured Kaushal Kumar by the doctor at 8. 45 p. m. the same evening revealed below noted injuries on his person: (1) Contused swelling 4 cm x 2 cm on back of elbow and lower part of left arm. Advised X-ray. (2) Contused swelling 3 cm x 1 cm on back of upper third of left forearm. Advised X-ray. (3) Abrasion 3 cm x 1 cm on the front of anterior aspect of right arm. (4) Lacerated wound 3 cm x 1/2 cm x scalp deep on occipital aspect of head about 11 cm behind and above the left ear. (2) Contused swelling 3 cm x 1 cm on back of upper third of left forearm. Advised X-ray. (3) Abrasion 3 cm x 1 cm on the front of anterior aspect of right arm. (4) Lacerated wound 3 cm x 1/2 cm x scalp deep on occipital aspect of head about 11 cm behind and above the left ear. The doctor opined that all the injuries were caused by some blunt object and fresh in duration. 10. SI Gaya Prasad Singh to whom investigation of the crime was entrusted visited the scene of occurrence and prepared its site plan map (Ext. Ka-4) and collected blood stained and simple earth from the scene of occurrence and prepared its memo (Ext. Ka-5 ). He also recorded statements of the witnesses. Next day investigation of the case was taken by Station Officer Gauri Pratap Singh in his hands. 11. Injured Satish succumbed to the fatal injuries sustained by him in the said occurrence in the Hospital the following morning i. e. on 17th of November, 1987 at 7. 10 a. m. 12. Station Officer Gauri Pratap Singh who took up investigation of the case in his hands collected blood stained clothes of injured Ghan Shyam, Kaushal and Shiv Poojan and prepared their memos (Exts. Ka-23 and Ka-25 ). Then the investigating officer recorded statement of injured Ghan Shyam. On the direction of the Station Officer Gauri Pratap Singh SI Devi Din Singh drew inquest on the dead-body of Satish preparing inquest report (Ext. Ka-18) and other papers (Exts. Ka-19 to Ka-22) and entrusted the dead- body in a sealed cover alongwith necessary papers to CP Ram Badan Tiwari and CP Chaturbhij Verma for its post-mortem. 13. Autopsy conducted on the dead-body of Satish by Dr. K. K. Tripathi, Orthopaedic Surgeon, District Hospital Gorakhpur on 17th of November, 1987 at 3. 15 p. m. revealed blow noted ante-mortem injuries: (1) Four stitches wound on left side of head 4 cm above left eyebrow. On cutting stitches it revealed lacerated wound 5. 0 cm x 1. 0 cm x bone deep. (2) Three stitches wound on left side of head 2. 0 cm lateral to injury No. 1. On cutting stitches it revealed lacerated wound 3. 0 cm x 0. 5 cm x bone deep. (3) Four stitches wound on left side of head 7 cm above left ear. 0 cm x 1. 0 cm x bone deep. (2) Three stitches wound on left side of head 2. 0 cm lateral to injury No. 1. On cutting stitches it revealed lacerated wound 3. 0 cm x 0. 5 cm x bone deep. (3) Four stitches wound on left side of head 7 cm above left ear. On cutting stitches it revealed lacerated wound 4 cm x 0. 5 cm x bone deep. (4) Four stitches wound on the top of head. On cutting stitches it revealed lacerated wound 5 cm x 0. 5 cm x bone deep. (5) Four stitches wound on right side of head 11 cm above right ear. On cutting stitches it revealed lacerated wound 5 cm x 0. 5 cm x bone deep. (6) Contused swelling 10 cm x 8 cm on the forehead extending both the upper eye lids. (7) Three stitches wound on left side face just lateral to left angle of mouth. On cutting stitches it revealed lacerated wound 3. 0 cm x 0. 5 cm x skin deep. On internal examination blood clots were found present in skull and in the brain mater. Occipital, left temporal, frontal and both the parietal bones were found fractured at places. The doctor opined that the death was caused due to coma as a result of ante-mortem head injuries. 14. On 19th of November, 1987 the case was altered under Section 302 IPC vide GD Entry No. 25 (Ext. Ka-5 ). 15. It appears that injured Shiv Poojan was referred to Medical College, Lucknow where he was treated but he succumbed to the fatal injuries sustained by him in the said incident on 23rd of November, 1987 at 11. 50 p. m. SI Vijai Singh, police station Chawk, District Lucknow drew autopsy on the dead-body of Shiv Poojan preparing the inquest report (Ext. Ka-30) and other papers (Exts. Ka-31 and 32) and handed over the dead-body in a sealed cover alongwith necessary papers to CP Banwari Singh for its post- mortem. 16. Autopsy on the dead-body of Shiv Poojan was conducted by Dr. U. B. Singh, Orthopaedic Surgeon, Civil Hospital Lucknow on 24th of November, 1987 at 2. 25 p. m. which revealed below noted ante- mortem injuries: (1) Lacerated wound 4 cm x 1 cm x bone deep on right side scalp 8 cm above right ear pinna. 16. Autopsy on the dead-body of Shiv Poojan was conducted by Dr. U. B. Singh, Orthopaedic Surgeon, Civil Hospital Lucknow on 24th of November, 1987 at 2. 25 p. m. which revealed below noted ante- mortem injuries: (1) Lacerated wound 4 cm x 1 cm x bone deep on right side scalp 8 cm above right ear pinna. (2) Lacerated wound 5 cm x 1 cm x bone deep on right side scalp 4 cm behind injury No. 1. (3) Contusion in an area of 12 cm x 9 cm on the right side scalp behind right ear pinna. (4) Scabbed abrasion 7 cm x 2. 5 cm on the lateral aspect of right arm 15 cm above elbow. (5) Multiple scabbed abraded contusions in an area of 8 cm x 6 cm on the right elbow back. (6) Scabbed abrasion 5 cm x 3 cm on back of left elbow. (7) Scabbed abrasion 12 cm x 5 cm on right side back 14 cm below the 7th cervical vertebra. Internal examination revealed depressed fracture of right temporal and frontal hone on right side in an area of 4 cm x 3 cm. Sub dural haemotoma was present in the posterior part of brain. The doctor opined that the death was caused due to coma as a result of head injuries. 17. Investigating officer got blood stained clothes of the victims and blood stained earth collected from the scene of occurrence sent to the Scientific Laboratory. Lucknow for serologists opinion if they contained human blood and if so their blood groups. 18. After completing investigation the police submitted charge-sheet against the accused under Sections 147, 148. 323. 324, 325, 307, 302, 504 and 149 IPC. 19. In order to bring the charge home to the accused the prosecution examined Shravan Kumar (PW 1), Ghan Shyam (PW 2), Lal Chand (PW3) and Jai Prakash (PW 4) as eye-witnesses of the occurrence. PW 5 Dr. R. A. L. Gupta. Radiologist who got elbow and fore arm of injured Ghan Shyam X-rayed proved the X- ray plate (material Ext. Ka-IV) and X-ray report (Ext. Ka-2 ). PW 7 Dr. M. K. Saxena. EMO District Hospital Gorakhpur who medically examined injured Shiv Poojan, Satish, Ghan Shyam and Kaushal proved their injury reports (Exts. Ka-3 & Ka 6 to Ka 8 ). Radiologist who got elbow and fore arm of injured Ghan Shyam X-rayed proved the X- ray plate (material Ext. Ka-IV) and X-ray report (Ext. Ka-2 ). PW 7 Dr. M. K. Saxena. EMO District Hospital Gorakhpur who medically examined injured Shiv Poojan, Satish, Ghan Shyam and Kaushal proved their injury reports (Exts. Ka-3 & Ka 6 to Ka 8 ). He also deposed that X-ray of the fore arm of Ghan Shyam revealed ulna bone fractured. PW8 Dr. K. K. Tripathi who conducted autopsy on the dead-body of Satish proved the post-mortem report (Ext. Ka-12 ). PW 9 constable Sumer Prasad who prepared check report on the basis of the written report handed over by Shravan Kumar at the police station on 17th of November, 1987 at 2. 45 a. m. and made entry regarding registration of the crime in GD proved these papers (Exts. Ka-13 & Ka-14 ). He also proved GD entry No. 25 regarding alteration of the crime under Section 302 IPC on 19-11-1987 (Ext. Ka-15 ). PW10 SI Devi Din Singh who drew inquest on the dead-body of Satish proved the inquest papers (Exts. Ka-18 to Ka-22 ). PW 11 CP Chaturbhuj Verma to whom dead- body of Satish in a sealed cover alongwith necessary papers was handed over for being taken for its post-mortem stated the said fact. PW 6 SI Gaya Prasad Singh and PW 12 Station officer Gauri Pratap Singh who investigated the crime proved the police papers. PW 13 Dr. U. B. Singh. Orthopaedic Surgeon, Civil Hospital Lucknow who conducted autopsy on the dead-body of Shiv Poojan proved the post- mortem report (Ext. Ka-29 ). PW 14 Umesh Chand Srivastava, Pharmacist, District Jail Hospital, Gorakhpur who produced medico-legal register stated that during the period from 22-5-1987 to 12-8- 1988 there was no injury report of Siddh Nath, Rama Shankar, Ashesher Nath, Harish Chandra, Girish and Sobh Nath recorded therein. PW 15 constable Banwari Singh to whom dead-body of Shiv Poojan in a sealed cover alongwith necessary papers was handed over for its post-mortem stated the said fact. CW 1 SI Vijai Singh who drew inquest on the dead-body of Shiv Poojan proved the inquest papers (Ext. Ka-30 to Ka-32 ). 20. The accused denied the alleged occurrence altogether stating that they were implicated in the case falsely due to animosity. CW 1 SI Vijai Singh who drew inquest on the dead-body of Shiv Poojan proved the inquest papers (Ext. Ka-30 to Ka-32 ). 20. The accused denied the alleged occurrence altogether stating that they were implicated in the case falsely due to animosity. The defence case is that in the evening of 16th of November, 1987 Sobh Nath and his brother Siddh Nath and son Dhruv Chand were getting their field situate at Diggha sowed; that at about 5. 00 p. m. Satish, Kaushal Ghan Shyam, Surya Narain, Shiv Poojan and Viddhya taking lathis, spade and spears reached at his field and Satish shouted that Dhruv Chand had beaten him while going to the school and now he would be murdered; that then Sobh Nath and Siddh Nath asked them not to abuse them; that immediately they gave them lathi, spade and spear blows and as Ashesher Nath alongwith Lalita and Girish rushed for their rescue they also gave them blows with their respective weapons; that Sobh Nath and his companions also gave blows to the assailants in their self-defence and that then Sobh Nath taking all the injured went to police station Sikriganj for lodging FIR of the occurrence but they were rebuffed and their report was not taken down by the police. It is also contended that on 29th of December, 1987 Sobh Nath gave a complaint in the Court of Magistrate but in spite of the order of the Court no case was registered by the police against the assailants. It is also stated that injured Sobh Nath, Siddh Nath, Asheshar Nath and Lalita Prasad were got medically examined at the Primary Health Centre Khajani, District Gorakhpur. The accused examined DW 1 Dr. Purshottam Tiwari, DW 2 Dr. C. B. Singh and DW3 Dhruv Chand in their defence. DW 1 Dr. Purushottam Tiwari, Medical Officer in-charge Primary Health Centre Khajani stated that he medically examined injured Sobh Nath, Ashesher Nath, Siddh Nath and Lalita Prasad on 17th of November, 1987 between 2. 35 to 4. 05 p. m. and proved their injury reports. 21. Medical examination of Sobh Nath revealed below noted injuries on his person: (1) Incised wound 2. 4 cm x 0. 5 cm x scalp deep stained with blood and blood clots present. 35 to 4. 05 p. m. and proved their injury reports. 21. Medical examination of Sobh Nath revealed below noted injuries on his person: (1) Incised wound 2. 4 cm x 0. 5 cm x scalp deep stained with blood and blood clots present. Not bleeding on touch but full of blood clots and neighbouring portion swollen in an area of 4 cm x 3 cm. This wound was situate on scalp 12 cm above the left ear with clear cut sharp margins and edges. All the garments stained with blood. (2) Traumatic swelling in an area of 6 cm x 4 cm on left fore-arm just above the wrist; tender on touch, colour pinkish greyish. Movement at right wrist free. (3) Post traumatic swelling in an area of 12 cm x 10 cm on the extension aspect of right hand. Swollen part tender and reddish grey in colour. Patient is not able to perform proper movements by his right hand. There may be fracture of any of carpals or metacarpals. Advised X-ray of right hand. 0 (4) Post traumatic swelling covering whole of left hand in an area of 23 cm x 11 cm. Patient quite unable to perform any useful movement by his left hand. Advised X-ray of left hand. Colour is pinkish grey. (5) Complained of pain in both the shoulders. (6) Abrasion 3 cm x. 5 cm not oozing, dry and red in colour in the upper most part of right side neck in sub mandible region. The doctor opined that injury No. 1 was caused by some sharp edged weapon and rest by blunt object and about one day old in duration. 22. Medical examination of injured Asheshar Nath revealed below noted injuries on his person: (1) Lacerated wound 1. 5 cm x 0. 5 cm x scalp deep on head 10 cms. Above the left ear with irregular margins and edges; stained with blood and blood clots presents. The wound not bleeding on touch, oozing of serum present. Colour reddish grey. (2) Incised wound 2. 5 cm x 0. 4 cm x scalp deep on back part of head 15 cms above the root of neck with clean cut sharp margins and edges and stained with blood and blood clots present. Garments stained with blood. The wound not bleeding on touch, oozing of serum present. Colour reddish grey. (2) Incised wound 2. 5 cm x 0. 4 cm x scalp deep on back part of head 15 cms above the root of neck with clean cut sharp margins and edges and stained with blood and blood clots present. Garments stained with blood. (3) Contusion with swelling in an area of 4 cm x 3 cm on left side face just below the left lower eye lid, colour pinkish grey. (4) Lacerated wound 0. 5 cm x 1 cm x skin and muscle deep on the antero lateral aspect of left fore-arm 9. 5 cm below the elbow stained with blood and blood clots present. (5) Diffused swelling in an area of 23 cm x 14 cm extending from just below the injury No. 4 and covering whole of the lower part of left forearm and whole of the extension aspect of left hand. Patient unable to perform useful movements at his left wrist and left hand. He complained of pain in left shoulder. 1 The doctor opined that injuries No. 1 and 3 to 5 were caused by blunt object and injury No. 2 by some sharp edged weapon and about one day old in duration. Injuries No. 1 to 3 were simple in nature. Injuries No. 4 and 5 were advised X-ray. 23. Medical examination of Siddh Nath revealed below noted injuries on his person: (1) Lacerated wound 4 cm x 0. 5 cm x scalp deep on head 9 cms above the left ear; stained with blood and blood clots present. Colour pinkish grey. (2) Lacerated wound 2. 5 cm x 0. 6 cm x scalp deep on head 8. 5 cm above the medial end of right eyebrow; stained with blood and blood clots present. Colour reddish grey. (3) Contusion with swelling in an area 4 cm x 3 cm on left side face just below the left lower eyelid; colour pinkish grey. (4) Post traumatic swelling in an area of 7 cm x 4 cm on the lower and anterior part of left fore-arm just above the wrist with tender swelling but movements at wrist quite free, colour pinkish grey. The doctor opined that injuries were caused by blunt object and about a day old in duration. 24. (4) Post traumatic swelling in an area of 7 cm x 4 cm on the lower and anterior part of left fore-arm just above the wrist with tender swelling but movements at wrist quite free, colour pinkish grey. The doctor opined that injuries were caused by blunt object and about a day old in duration. 24. Medical examination of Lalita Prasad revealed below noted injuries on his person: (1) Lacerated wound 3. 5 cm x 1 cm x scalp deep in occipital region 14 cm above right ear stained with blood; colour reddish grey. (2) Post traumatic swelling in an area 9 cm x 7 cm on the extension and lower part of right fore-arm just above the wrist with tender swelling; colour pinkish grey. Movements at wrist free. 2 (3) Complained of pain in right thumb. (4) Complained of pain in whole of the left hand. (5) Post traumatic swelling in an area 5 cm x 4 cm on back part of right elbow joint; pinkish grey in colour and movements at right elbow free. (6) Multiple abrasions in an area 22 cm x 6 cm on left side abdomen 6 cm away from umbilicus not oozing; colour pinkish grey. All the injuries were caused by some blunt object or by hit against some hard object, simple in nature and about one day old in duration. 25. DW 2 Dr. C. B. Singh, Medical Officer in-charge Primary Health Centre Nath Nagar, Basti who medically examined injured Dhruv Chand and Girish on 17-11-1987 at 6. 00 a. m. and 6. 15 a. m. respectively proved their injury reports (Exts. Kha-5 and Kha-6 ). 26. Medical examination of injured Dhruv Chand revealed below noted injuries on his person: (1) A reddish contusion 3 cm x 2 cm over right side of head over parietal eminence. (2) A reddish contusion 5 cm x 2 cm over left side of back lower part. (3) A reddish abrasion 4 cm x 1 cm over left arm middle part medial surface. The doctor opined that injuries No. 1 and 2 were caused by blunt object and injury No. 3 by friction. All the injuries were simple in nature and about half day old in duration. 3 27. Medical examination of injured Girish revealed below noted injuries on his person: (1) A reddish contusion 4 cm x 2 cm over right side of back middle part. All the injuries were simple in nature and about half day old in duration. 3 27. Medical examination of injured Girish revealed below noted injuries on his person: (1) A reddish contusion 4 cm x 2 cm over right side of back middle part. (2) A reddish contusion 6 cm x 2 cm over left side of thigh middle part outer surface. Complained of pain over right thigh. The doctor opined that the injuries were caused by blunt object, simple in nature and about half day old in duration. 28. DW 3 Dhruv Chand, son of accused Sobh Nath also appeared as a defence witness. 29. On an appraisal of the parties evidence the learned trial Judge held accused Sobh Nath, Siddh Nath, Asheshar Nath, Lalita and Girish guilty of the charge levelled against them and convicted them sentencing each of them as stated above and extending benefit of doubt to accused Lallu @ Ram Shankar, Roop Narain @ Devendra and Harish Chandra. 30. Feeling aggrieved by the impugned judgment accused Sobh Nath, Siddh Nath, Asheshar Nath, Lalita and Girish preferred criminal appeal for redress. Feeling dis-satisfied with the acquittal of accused Lallu @ Rama Shankar, Roop Narain @ Devendra, Harish Chandra the State also preferred appeal assailing the impugned judgment to the said extent. 31. We have heard Sri P. N. Misra, learned Senior Advocate for the accused appellants in Criminal Appeal and the accused respondents in the State Appeal as well and AGA Sri Karuna Nand Bajpai for the State respondent in the criminal appeal and State appellant in the State appeal and gone through the record. 32. After going through the impugned judgment and record of the case we see that the learned trial Judge has written an elaborate and well discussed judgment and we find ourselves in consonance therewith. However, learned Counsel for the accused appellants in the criminal appeal has advanced the 4 following arguments and now we shall examine if any of the submissions made by the learned Counsel for the accused appellants has got any force: 33. First, learned Counsel for the accused appellants strenuously argued that since the prosecution has not been able to explain the injuries suffered by accused appellants Asheshar Nath, Siddh Nath, Lalita Prasad, Sobh Nath and Girish the prosecution case should fail. First, learned Counsel for the accused appellants strenuously argued that since the prosecution has not been able to explain the injuries suffered by accused appellants Asheshar Nath, Siddh Nath, Lalita Prasad, Sobh Nath and Girish the prosecution case should fail. After giving our anxious consideration, we are of the considered view that the said submission made by the accused appellants learned Counsel proceeds with the fallacious assumption that all the accused appellants received injuries in the course of the said incident, and therefore, the said submission is misconceived. A perusal of the parties evidence goes to show that at the relevant time Satish, son of Shiv Poojan and Dhruv Chand, son of Sobh Nath were studying in 10th class in different schools; that at about 9. 00 a. m. on 16th of November, 1987 when they were going to their respective schools some brawl took place between the two and that then Dhruv Chand went back to his house. PW 1 Shravan Kumar and PW 2 Ghan Shyam both consistently stated that at about 12-1 noon that very day Lalita Prasad, elder brother of Dhruv Chand went to their house and complained about the conduct of Satish and started hurling abuses; that thereon they told him that when Satish will return back they would take his class; that at about 4. 30 p. m. they alongwith Shiv Poojan, Kaushal and maternal uncle Jai Prakash taking their tractor went to their field at village Diggha and were getting their field ploughed with the tractor; that at that time Sobh Nath, Asheshar Nath, Siddh Nath, Rama Shankar, Dhruv Chand, Roop Narain, Girish and Lalita were getting their field ploughed with an ox; that at about 5. 00 p. m. that very evening Satish was returning back from the school and as he reached near the corner of the field of Deep Narain situate to the west of the field of the accused sighting him Lalita exhorted that he should be killed and all of them taking lathis, shovels and hoe chased him and gave him lathi and hoe blows; that immediately Shiv Poojan and his sons Ghan Shyam and Kaushal rushed for the rescue of Satish; that then all the assailants abovenamed started giving lathi and shovel blows to all the three and that sustaining the fatal injuries Satish and Shiv Poojan fell down and became unconscious and Ghan Shyam and Kaushal also fell down; that in the meanwhile hearing the hue and cry one Narvada, Ram Pyarey and Lal Chand rushed from the market to the scene of occurrence and that at that time Sobh Nath taking the hoe was about to decapitate Satish but sighting the witnesses all of them ran towards their houses. PW 3 Lal Chand and PW 4 Jai Prakash also stated likewise corroborating both the witnesses abovenamed on material aspects of the case. Both PW1 Shravan Kumar and PW 2 Ghan Shyam consistently stated that no person on their side was armed with any weapon nor did they cause any injury to any of the assailants. 34. A perusal of the medical evidence goes to show that when injured Satish and Shiv Poojan were medically examined by the doctor at District Hospital Gorakhpur condition of each of them was quite critical and both of them were unconscious. Injured Satish succumbed to the fatal injuries sustained by him in the said incident in the Hospital the following morning at 7. 10 a. m. Since the condition of injured Shiv Poojan was also worsening he was referred to Medical College Lucknow and admitted there on 17th of November itself where he succumbed to fatal injuries sustained by him on 23rd of November at 5 11. 50 p. m. Dr. R. A. L. Gupta, Radiologist who got left hand of injured Ghan Shyam X-rayed found his ulna bone fractured. A perusal of the injury report of Ghan Shyam also revealed that he received a lacerated wound 8-1/2 cm x 1/2 cm x scalp deep on left side of his forehead. 50 p. m. Dr. R. A. L. Gupta, Radiologist who got left hand of injured Ghan Shyam X-rayed found his ulna bone fractured. A perusal of the injury report of Ghan Shyam also revealed that he received a lacerated wound 8-1/2 cm x 1/2 cm x scalp deep on left side of his forehead. Medical examination of injured Kaushal also revealed injuries on his person including a lacerated wound 3 cm x 1/2 cm x scalp deep on occipital region. All the injuries sustained by the four victims were found to be fresh in duration. Regarding the injuries allegedly sustained by the accused appellants and Dhruv Chand (DW 3) it is doubtful if they sustained injuries in the said incident for threefold reasons: (i) There is no Cross FIR of the occurrence lodged by any of the accused at the police station. The defence case is that injured Sobh Nath taking all the injured went to the police station but his report was not taken down by the police. This defence version does not inspire confidence because that day no FIR was lodged by injured Ghan Shyam or any person from the side of the victims on prosecution side due to fatal injures sustained by Shiv Poojan and Satish as they were rushed to the District Hospital situate at a distance of some 40-45 kms from the place of occurrence and thereafter their relatives remained awfully busy in looking after them as they were hospitalized. It is but natural that blood relations were more concerned about the lives of the two injured whose condition was so critical that one of them died the following morning at 7. 15 a. m. and the other was referred to Medical College Lucknow. It is but natural that blood relations were more concerned about the lives of the two injured whose condition was so critical that one of them died the following morning at 7. 15 a. m. and the other was referred to Medical College Lucknow. In such a situation it does not appeal to our minds that if accused Sobh Nath, Asheshar, Siddh Nath and Lalita Prasad who had allegedly received head injuries in the said incident went to the police station soon after the occurrence but their report was not taken down by the police for the following reasons: (i) There is nothing on the record to show that all or any of the police officials posted at the police station were so inimical to them that they did not record the FIR inspite of the fact that several injured with bleeding injuries were present there, (ii) According to the defence case four accused abovenamed had suffered open wounds on their heads bleeding so much that the clothes put on by them got blood stained but they did not go either to the District Hospital Gorakhpur or Primary Health Centre, Khajani soon thereafter for their medical examination and treatment as all the four got themselves medically examined at Primary Health Centre Khajani next evening i. e. on 17th of November, 1987 and (iii) Strangely enough accused Girish and Dhruv Chand got themselves medically examined at the Primary Health Centre Nath Nagar, District Basti next morning i. e. on 17th of November 1987 at 6. 00 a. m. and 6. 15 a. m. respectively. Medical examination of injured Girish revealed two contusions and one abrasion at his back and thigh. It is incomprehensible and unintelligible as to why they did not get themselves medically examined at PHC, Khajani and that what were the compelling circumstances which made them to go to the neighbouring district and get themselves medically examined at PHC Nath Nagar emergently at 6. 00 a. m. and 6. 15 a. m. in the month of November when neither of them had received any serious injury. Possibility cannot be ruled out altogether that their injury reports are fictitious. 35. Further, DW 1 Dr. Purshottam Tewari, Medical Officer in-charge, Primary Health Centre District Gorakhpur who medically examined Sobh Nath, Asheshar Nath, Siddh Nath and Lalita on 17th of November, 1987 between 2. 35 p. m. to 4. Possibility cannot be ruled out altogether that their injury reports are fictitious. 35. Further, DW 1 Dr. Purshottam Tewari, Medical Officer in-charge, Primary Health Centre District Gorakhpur who medically examined Sobh Nath, Asheshar Nath, Siddh Nath and Lalita on 17th of November, 1987 between 2. 35 p. m. to 4. 05 p. m. stated that all the injuries sustained by Siddh Nath and Lalita were simple in nature and about one day old in duration. A perusal of the injury report of Lalita Prasad goes to show that the doctor opined that all the injuries allegedly sustained by him were caused 6 by some blunt object or by hit against some hard object. He also stated that injuries No. 1 and 2 received by Asheshar at his scalp were simple. He also stated that injury No. 1 sustained by Sobh Nath at his scalp could not be caused with spade because if spade is used for causing injury at head it would cause injury much more in depth. Further, according to the prosecution case accused Siddh Nath was arrested by the police on 20th of November, 1987. PW 12 Station Officer Gauri Pratap Singh who arrested accused Siddh Nath on 20th of November, 1987 stated that in the GD entry it is mentioned that there was no injury on the body of Siddh Nath and there was a mark of old injury on his head (Ext. Ka- 27 ). Further, it has come in evidence that accused appellant Sobh Nath, Asheshar Nath, Lalita and Girish were challaned by the police under Railways Act and were in the District Jail Gorakhpur in connection with the said crime on 27th of November, 1987. PW 14 Umesh Chand Srivastava, Pharmacist District Jail Gorakhpur produced Medico-Legal Register in the Court and deposed that there was no mention of any injury report regarding accused Siddh Nath, Rama Shankar, Lalita, Harish Chand, Sobh Nath and Girish during the period from 22nd of May, 1987 to 12th of August, 1988. According to the Jail Manual, before any accused is lodged in the District Jail it is mandatory for the Jail Doctor to medically examine him and to record injuries in the Medico-Legal Register, if there is any injury on his person. According to the Jail Manual, before any accused is lodged in the District Jail it is mandatory for the Jail Doctor to medically examine him and to record injuries in the Medico-Legal Register, if there is any injury on his person. Since there is no mention of any injury on the person of Siddh Nath who was lodged in the District Jail on 21st of November, 1987 it raises a considerable doubt if he suffered any lacerated wounds at his head at all because injuries No. 1 and 2 as mentioned in his injury report could not have healed up within 4-5 days. Non-mention of any injury much less any head injury in the GD entry and Medico-Legal Register maintained by the Jail Doctor goes to reveal that injuries mentioned in the injury report of Siddh Nath may be fictitious or were noted down in an exaggerated manner because DW 1 Dr. Purshottam Tewari, Jail Doctor himself admitted in his cross-examination that skin over scalp contains seven layers. And if injuries No. 1 and 2 allegedly sustained by Siddh Nath were scalp deep they could not have completely healed up within 4-5 days. 36. For the reasons aforesaid, we are of the considered view that the accused appellants did not sustain any injury in the incident aforesaid and injuries noted in the injury reports might be self inflicted or manufactured and might have been mentioned in the injury reports in an exaggerated manner. Since it is not proved that the accused appellants sustained injuries in the said incident at the hands of the victims on the prosecution side, it was not at all obligatory upon the prosecution to explain the injuries allegedly sustained by the accused appellants in the said incident. Moreover, since testimony of four eye-witnesses examined by the prosecution is very strong and of unimpeachable character the prosecution would not fail if the injuries allegedly sustained by the accused have not been explained by the prosecution. Both the eye-witnesses namely Shravan Kumar and Ghan Shyam categorically stated that none on their side was armed with any weapon at the time of incident nor did they cause any injury to any of the accused appellants. The said argument advanced by the learned Counsel for the accused appellants is, therefore, liable to be rejected and is repelled. 7 37. The said argument advanced by the learned Counsel for the accused appellants is, therefore, liable to be rejected and is repelled. 7 37. Secondly, it has been vehemently argued by the learned Counsel for the accused appellants that eye-witnesses examined by the prosecution being close relatives or associates of the deceased their testimony cannot be relied upon. No doubt PW 1 Shravan Kumar was real nephew of deceased Shiv Poojan and first cousin of deceased Satish and PW 2 Ghan Shyam was son of deceased Shiv Poojan and real brother of deceased Satish and PW 4 Jai Prakash happened to be the maternal uncle of deceased Satish and brother-in-law of deceased Shiv Poojan but their sworn testimony cannot be thrown over board on that ground alone. Admittedly, PW 3 Lal Chand is the resident of village Badra where deceased Shiv Poojan alongwith his brother Ram Narain and their sons used to reside constituting a joint family. He emphatically denied that Suraj Narain, brother of deceased Shiv Poojan appeared as a witness in his favour in revenue litigation between him and one Ghisiyavan. No doubt that he did not support the prosecution case against accused Harish Chandra, Lallu @ Rama Shanker and Roop Narain @ Devendra as he could not recognize them. But otherwise he supported the prosecution case against the remaining accused on all the material aspects. All the four eye-witnesses who cogently and consistently deposed on the main aspects of the prosecution case corroborating each other were subjected to rambling and gruelling cross-examination but nothing substantial could be elicited to shake their credibility. Shorn of few contradictions and inconsistencies which are of trivial and insignificant nature nothing tangible could be elicited to shake the central core of their assertions in respect of the prosecution version. Since the testimony of four eye-witnesses is of unimpeachable character and above reproach of suspicion there is no reason to doubt their testimony nor the trial Judge who had an opportunity to watch the demeanor of these witnesses castigated their testimony in any manner. Moreover, if the witnesses are related to the deceased it would add to the value of their testimony, if found reliable because they would naturally be interested in ensuring that real culprits should be punished. Therefore the said argument advanced by the learned Counsel for the accused appellants has got no life and is rejected. 38. Moreover, if the witnesses are related to the deceased it would add to the value of their testimony, if found reliable because they would naturally be interested in ensuring that real culprits should be punished. Therefore the said argument advanced by the learned Counsel for the accused appellants has got no life and is rejected. 38. Thirdly, learned Counsel for the accused appellants contended that according to the prosecution witnesses two assailants namely Roop Narain @ Devendra and Girish were armed with hoes and Lalita and Harish Chandra with shovels but a perusal of the injury reports of all the four victims goes to show that only Satish had received an incised wound at his scalp. No doubt, the doctor who medically examined all the four injured mentioned only one incised wound sustained by Satish at his head, but regarding nature of the injuries only opinion is given by the doctor. Looking to the size of the injuries No. 1 and 2 sustained by Shiv Poojan they could be caused with shovel or hoe. Moreover, shovel and hoe come in the category of sharp edged weapon but they are not so sharp as knife, sword etc. as both shovel and hoe are agricultural implements. Therefore, the said argument advanced by the learned Counsel for the appellants has got no substance and falls to the ground. 39. Fourthly, it has also been argued that the prosecution party was aggressor and the accused appellants wielded lathis in their self-defence. This submission advanced by the learned Counsel for the accused appellants is wholly fallacious as observed above. It has not been established at all that the accused appellants suffered any injuries in the incident aforesaid. Moreover, a perusal of the injury 8 reports of the accused appellants and medical evidence goes to show that none of them received any injury of serious or grievous nature. On the other hand, on the prosecution side Satish was made target and assaulted by the accused appellants in a calculated manner and intensity and impact of the blows given to him was so severe that the autopsy on his dead-body revealed fracture of both the parietal, temporal, occipital and frontal bones of his head. He sustained all the injuries on his head and face. Shiv Poojan, father of Satish rushed for his rescue. He sustained all the injuries on his head and face. Shiv Poojan, father of Satish rushed for his rescue. He was also given fatal blows at his head and he was also medically examined by the doctor at District Hospital, Gorakhpur at 8. 00 p. m. the same evening. At that time he was unconscious and his condition was so critical that next morning he was referred to Medical College Lucknow where he succumbed to the fatal injuries sustained by him on 23rd of November itself. All these facts go to show that it were the accused who were the aggressors. 40. Lastly, it has also been argued by the learned Counsel for the appellants that the FIR of the occurrence lodged at the police station was much delayed. We are unable to agree with the said submission advanced by the learned Counsel for the accused appellants. Two persons namely Satish and his father Shiv Poojan received fatal injuries in the said incident and their condition was quite critical so much so that Satish succumbed to the fatal injuries sustained by him in the Hospital the following morning at 7. 30 a. m. and injured Shiv Poojan was referred to medical College, Lucknow as his condition was getting worsened. Under these circumstances, close male members who were present at the scene of occurrence were more concerned about their lives and remained awfully busy in getting them hospitalized and managing for medicines etc. PW 1 Shravan, real nephew of Shiv Poojan, the deceased stated that since he remained awfully busy as their condition was quite critical and injured Ghan Shyam and Kaushal were also admitted in the hospital the FIR could be lodged at the police station Sikriganj at 2. 45 a. m. in the night. We are of the view that delay in lodging FIR has been explained satisfactorily. 41. The learned trial Judge has given cogent and convincing reasons for extending benefit of doubt to accused Lallu @ Rama Shankar Shukla, Roop Narain @ Devendra Shukla and Harish Chandra. He rightly extended benefit of doubt to three accused Harish Chandra, Roop Narain @ Devendra and Lallu @ Rama Shanker as PW 3 Lal Chand could not recognize them. He also observed that Harish Chandra was allegedly armed with shovel but it was stated that Sobh Nath took hoe from the hands of Harish Chandra in order to decapitate Satish. He rightly extended benefit of doubt to three accused Harish Chandra, Roop Narain @ Devendra and Lallu @ Rama Shanker as PW 3 Lal Chand could not recognize them. He also observed that Harish Chandra was allegedly armed with shovel but it was stated that Sobh Nath took hoe from the hands of Harish Chandra in order to decapitate Satish. He rightly observed that sometimes there is a tendency of roping all the male members of a family in the crime and that looking to the number and nature of injuries sustained by the victims presence of accused Harish Chand, Roop Narain @ Devendra and Lallu @ Rama Shankar appeared to be doubtful. And since the said finding cannot be said to be perverse or unreasonable we have to confirm the same. 42. Both the appeals have no merit and are liable to be dismissed. 9 43. The Government Appeal is hereby dismissed and acquittal of accused respondents Lallu @ Rama Shankar Shukla, Roop Narain @ Devendra Shukla and Harish Chandra Shukla is hereby affirmed. All the three accused respondents abovenamed are on bail. Their bail bonds are hereby discharged. 44. The Criminal Appeal is also dismissed. Conviction of accused appellants Sobh Nath and Asheshar Nath under Section 147 IPC and Section 302 read with 149 IPC and that of accused Lalita and Girish under Section 148 IPC and Section 302 read with 149 IPC and that of all the four accused appellants under Sections 323, 324 and 325 each read with Section 149 IPC and sentences awarded to each of them thereunder by the trial Court are hereby affirmed. Accused appellants Sobh Nath, Asheshar Nath, Lalita and Girish are on bail. Their bail bonds are hereby cancelled. Chief Judicial Magistrate, Gorakhpur is hereby directed to get accused appellants Sobh Nath, Asheshar Nath, Lalita and Girish arrested and sent to jail to serve out the sentences imposed upon them. 45. Appeal filed on behalf of accused appellant Siddh Nath stood abated as he was reported having died. 46. Office is directed to send copy of the judgment alongwith record of the case to the Court concerned immediately for compliance under intimation to this Court within two months of receipt thereof. Appeal dismissed. .