JUDGMENT Hon’ble DharamVeer, J. This criminal appeal arises out against the judgment and order dated 27.05.1986 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No. 42 and 43 of 1985, State versus Balbir Singh & three others convicting the accused/appellants underSections 452, 324, 325 read with section 34 of the Indian Penal Code (hereinafter referred as I.P.C.) and sentencing each of them to one year rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo three months rigorous imprisonment for the offence under Section 452 I.P.C. one year’s rigorous imprisonment for the offence under section 324/34 I.P.C. and two years rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo three months rigorous imprisonment for the offence under Section 325/34 I.P.C. All the sentences were to run concurrently. 2. Brief facts of the prosecution case are that on 06.06.1985 at about 2 p.m. Balbir Singh, Jawahar Singh and Khushal Singh S/o Shiv Singh and Surender Singh S/o Sri Avtar Singh R/o Village Toli, P.S. Laxman Jhula entered the residential house of Sri Chandan Singh in their village Toli and caused hurt to Chandan Singh and his wife Darshani Devi and committed the offence punishable under section 452 of I.P.C. they were further charged UNDER section 307 readf with Section 34 of I.P.C. for causing injuries to Chandan Singh and Darshani Devi with common their intention to commit their murder, armed with Khunkhari and Lathis. 3. The written report, Ext. Ka.1 of the said incident was lodged by Sri Surendra Singh S/o Sri Chandan Singh at P.S. Laxman Jhula on 06.06.1985 at about 05:15 p.m.. The distance of Police station from the place of occurrence is 15 kms. On the basis of written report, chick F.I.R. Ext .Ka.4 was drawn at the police station and the police registered the case against the accused persons at report No. 34 at 5:15 P.M. on 06.06.1985, the copy of which is Ext. Ka.5. According to the allegations of the written report filed by Surendra Singh, his father Chandan Singh resides in Village Toli as Gharjawain for about 25 years because the informant’s mother Darshani Devi inherited one half part of the property from her father Shyam Singh. Ka.5. According to the allegations of the written report filed by Surendra Singh, his father Chandan Singh resides in Village Toli as Gharjawain for about 25 years because the informant’s mother Darshani Devi inherited one half part of the property from her father Shyam Singh. The remaining one half share in the property of Shyam Singh in the village Toli was inherited by his nephew Balbir Singh(accused). On 06.06.1985, Balbir Singh tied his Jhota (Buffaloes) in front of informant’s Gaushala and the animal broke free and caused damage to the walls and door leaves of the Gaushala, and also injuries to Goat. On this, Chandan Singh quarreled with Balbir Singh. Thereupon all the four accused entered in the residential room of Chandan Singh armed with Khunkhari and Lathis. Accused Balbir Singh grabbed Darshana Devi by neck and Jawahar Singh assaulted her with Khukhari on the head with intent to kill. Khushal Singh grabbed Chandan Singh and Surendra Singh beat him with lathis, Kick and fists. The villagers intervened in the matter and rescued Chandan Singh and his wife. The informant Surendra Singh came to Know about the incident from his father in the school, where he was employed. Thereafter, he took his parents to police Station and then at Government Dispensary, Laxman Jhula. 4. Sri R.P.Kannaujia (P.W.6) was entrusted the investigation of the case. He recorded the statements of Chandan Singh and Darshana Devi. On 07.06.1985, the I.O. reached at village Toli and prepared the site plans of the places of occurrence i.e. Gaushala and residential house, Ex.Ka 7 and Ex.Ka 8 respectively. Samples of plain and blood-stained earth were taken and sealed in bundles. He also prepared the recovery memo. Ext.Ka. 9. On the Same day, he int3errogated the eyewitnesses of the occurrence. The accused persons, expect Surendra Singh, were arrested on 08.06.1985 and the fourth accused Surendra Singh surrendered himself in the court on 17.07.1985. The investigating Officer, after completion of the investigation, submitted the chargesheet, Ext.Ka.12 against the accused Balbir Singh, Jawahar Singh and Khushal Singh on 25.06.1985. Charge sheet, Ext. Ka.13 was submitted against the accused Surendra Singh on 5.8.1985 by the Investigating Officer. 5. Dr. P.K. Chandola (P.W.5) had examined the injured Chandan Singh and Darshani Devi on 06.06.1985, at 6.30 and 5.50 P.M. respectively in the Government Hospital, Laxman Jhula and found following injuries on their person. Charge sheet, Ext. Ka.13 was submitted against the accused Surendra Singh on 5.8.1985 by the Investigating Officer. 5. Dr. P.K. Chandola (P.W.5) had examined the injured Chandan Singh and Darshani Devi on 06.06.1985, at 6.30 and 5.50 P.M. respectively in the Government Hospital, Laxman Jhula and found following injuries on their person. Injuries of Darshani Devi aged about 32 years M.I. 1. A brownish black mole 0.5 cm X 0.5 cm over the frond of the chest in between the two breasts 7.0 cm below the eternal notch. Injuries :- 1. An incised wound 5 cm x 1.0 cm bone deep over the left side scalp 3.0 cm above the left ear. 2. An incised wound 5.0 cm x 1.0 cm bone deep over the left side scalp 3.0 cm down from the injury No. 1. 3. An incised wound 4.0 cm x 1.0 cm. Bone deep over the left back of the scalp 2.0 cm behind the injury No. 1. 4. A lacerated wound 1.0 cm x 0.5 cm x 0.5 cm over the back of the left elbow. 5. A contused swelling c pinkish colour 30.0 cm x 3.0 cm over the back across the left shoulder to left iliac crest. 6. A contused swelling 13.0 cm X 3.0 cm over the back parallel to the injury No. 6 and 5.0 cm down from the same i.e. 6. Duration :- All injuries are fresh in nature. Opinion:- All injuries are simple. Injury Nos. 1 to 3 caused by sharp edged object. Injury Nos. 4 to 6 caused by some blunt and hard object. The medical officer prepared injury report ext. Ka.2. Injuries of Sri Chandan Singh aged about 52 years :- MI 1. An old linear scar 2.5 cm X 0.3 cm. 2.0 cm above the right eye brow, forehand. 2. A black averted mole 0.2 cm X 0.2 cm, over the right side cheek, 1.0 cm below the lower eye lid of right side. Injuries:- 1. A lacerated wound 5.5 cm X 1.0 cm X 1.0 cm over top of the head. 2. A lacerated would 2.0 cm X 0.2 cm X 0.2 cm over the head (*scalp) 9.5 cm above the left eye brow. 3. Suspected fracture right side mandibular angle. X-ray advised from Dental Surgeon for final opinion. 4. One tooth dislocated C bleeding from socket of the right canine. 2. A lacerated would 2.0 cm X 0.2 cm X 0.2 cm over the head (*scalp) 9.5 cm above the left eye brow. 3. Suspected fracture right side mandibular angle. X-ray advised from Dental Surgeon for final opinion. 4. One tooth dislocated C bleeding from socket of the right canine. Tooth is available and examined by me and submitted to C.P. 130 for record. Receipt received and attached in office medical register. Condition of other teeth-there is only one incisor available in right side upper jaw. Lower jaw total nine teeth available in lower jaw at present. 5. A lacerated wound lower lip 0.2 cm X 0.2 cm X 1.0 cm to the left from angle of mouth. 6. An abraised swelling 7.5 cm x 2.0 over the right shoulder 5.0 cm down from left shoulder tip. Duration : All industries are fresh in nature. Opinion : Injury No. 3 opined after x-ray report. Clinicudle fracture is found. Injury No. 4 – grievous. Inury Nos. 1, 2, 5 and 6 are simple in nature and caused by some blunt and hard object. X-ray of Chandan Singh was also taken and the doctor opined that the injury No. 3 is grievous. Injury report and x-ray report of injured Chandan Singh were prepared by the doctor and proved the same as Ext. Ka. 3 and Ka. 11 respectively. 6. After submission of the charge sheet the accused/appellants were committed to the Court of Sessions and the learned Sessions Judge, Pauri Garhwal on 14.01.1986 framed the charge under Sections 452 and 307 read with Section 34 of I.P.C. against the accused. The accused denied the charges leveled against them and claimed their trial. 7. The prosecution in order to support its case produced in all six witnesses. Chandan Singh (P.W. 1) is the injured, Smt. Darshani Devi (P.W. 2) is another injured, Smt. Musi Devi (P.W. 3) is an eye witness of the occurrence, Surendra Singh (P.W. 4) is the complainant of the case, Dr. P.K. Chandola (P.W. 5) medically examined the injured of the case, and Sri R.P. Kannojia (P.W. 6) is the Investigating Officer. 8. P.W. 1, Chandan Singh, the inured of the case has deposed that accused Balbir Singh is the son of Shiv Singh, the uncle (brother of Shyam Singh) of his wife Smt. Darshani Devi. Shyam Singh was the father-in-law of this witness Chandan Singh. 8. P.W. 1, Chandan Singh, the inured of the case has deposed that accused Balbir Singh is the son of Shiv Singh, the uncle (brother of Shyam Singh) of his wife Smt. Darshani Devi. Shyam Singh was the father-in-law of this witness Chandan Singh. The half share in the property of Shyam Singh was given Smt. Darshani Devi. This witness Chandan Singh along with his wife Smt. Darshani Devi is living for the last 24 years in the house of his father-in-law Shyam Singh in village Toli. Remaining half share of property, was given to accused Balbir Singh by Shyam Singh in his life time. Accused Balbir Singh wanted the share of Chandan Singh and for that reason he was quarrelling with Chandan Singh and his wife Smt. Darshani Devi so that they may leave the village. According to this witness about 8-9 months ago accused Balbir Singh tied his Jhoti (he buffalo) in front of Gaushala of Chandan Singh and the animal broke free and caused damage to the walls and door leaves of the Gaushala and also injures to goat. This witness remonstrated with Balbir Singh. Thereupon all the four accused persons holding Khukhari and lathis, entered the residential room of Chandan Singh and with intent to commit assault, Balbir Singh grabbed Darshani Devi by neck and assaulted her with Lathi whereas accused Jawahar Singh assaulted her with Khukhari on the head with intent to kill. He further deposed that Khushal Singh grabbed him and Surendra Singh beat him with lathis, legs and fits. He sustained injures on his face and head. He became unconscious due to injuries. He also deposed that he was beaten inside his house and thereafter the accused dragged him out of the house. On raising alarm Balam Singh and Umrao Singh came there. Thereafter accused persons ran away from the spot. This witness further deposed that accused Khushal Singh, Balbir Singh and Jawahar Singh are real brothers and accused Surendra Singh is their nephew. He further deposed that thereafter he reached at the police station and got prepared the written report by his son Surendra Singh and then it was lodged at the police station. Thereafter he and his wife were sent to hospital for medical examination. This witness also stated that his blood-stained clothes were taken into possession by the police. He has proved the shirt and paijama material exts. Thereafter he and his wife were sent to hospital for medical examination. This witness also stated that his blood-stained clothes were taken into possession by the police. He has proved the shirt and paijama material exts. 1 and 2 and the broken tooth taken by the doctor in the hospital as material ext. 3. 9. P.W. 2, Smt. Darshani Devi is the wife of injured Chandan Singh. She is also injured witness. She has fully supported the version of P.W. 1, Chandan Singh. She has specifically deposed that accused Balbir Singh grabbed her neck and Jawahar Singh assaulted her with Khukhari at her head. She further deposed that her husband was also assaulted by the accused persons. She also stated that her blood-stained Dhoti and blouse were taken into possession by the police. She has proved the above articles as material exhibits 4 and 5. 10. P.W. 3, Musi Devi, who is the mother-in-law of witness Chandan Singh. This witness has deposed that in the month of Jeth. Surendra Singh, Balbir Singh, Khushal Singh and Jawahar Singh had assaulted Chandan Singh and Smt. Darshani Devi inside their house. She was witnessing the occurrence standing nearby the place of occurrence but she could not try to intervene due to the fear of the accused persons. She has further deposed that accused Balbir Singh pressed the necks of Darshani and Jawahar Singh assaulted her with Khukhari. Cahndan Singh was caught by Surendra Singh and Khushal Singh beat him with lathi and fists. She has corroborated the prosecution version. 11. P.W. 4, Surendra Singh is the son of injured Chandan Singh. He has deposed that the accused persons had beaten his parents. His father had reached to him in injured condition and narrated the incident. He reached the house and saw that his mother was lying there in an injured stte. Thereafter he along with Raghubir Singh, Balam Singh and Bir Bahadur brought his parents to P.S. Laxman Jhula. He wrote the written report and lodged it at the police station, i.e. Ext. Ka. 1. 12. P.W. 5, Dr. P.K. Chandola, had medically examined the injured witnesses and has proved the injury reports prepared by him. 13. P.W. 6, S.O. R.P. Kannaujia has investigated the case and narrated about the steps taken by him during the investigation. 14. He wrote the written report and lodged it at the police station, i.e. Ext. Ka. 1. 12. P.W. 5, Dr. P.K. Chandola, had medically examined the injured witnesses and has proved the injury reports prepared by him. 13. P.W. 6, S.O. R.P. Kannaujia has investigated the case and narrated about the steps taken by him during the investigation. 14. After the evidence of the prosecution was over, the statements of the accused/appellants were recorded under Section 313 of the Cr.P.C. They have denied the prosecution case and alleged that they have been falsely implicated in the case. The accused persons, in their defence, have produced Sri Balbir Singh (D.W. 1), Sri Phool Chand (D.W. 2) and Sri Gopal Singh (D.W. 3). 15. D.W. 1, Balbir Singh is the accused of the case. He has stated on oath that Shyam Singh was his uncle and injured Smt. Darshani Devi is the daughter of his uncle Shyam Singh. Half share in the property of Shyam Singh was inherited by him and the remaining half share was given to Smt. Darshani Devi. Gaushala and house of Shyam Singh were given to him but after the death of Shyam Singh, Smt. Darshani Devi and Chandan Singh are in possession of half share in the house and Gaushala also. Smt. Musi Devi is the second wife of Shyam Sinhg. Smt. Muri Devi transferred her property to Surendra Singh son of Darshani Devi. He has further deposed that the complainant party want to grab his property. He has admitted the incident and alleged that his Jhota broke the chain and went in the chauk of Darshani Devi and did not cause any damage. At this Chandan Singh complained him that his Jhota had beaten his she-buffalo. At this he tied his Jhota and went from there. He further alleged that his residential room is in the upper story whereas the room of Darshani Devi is in the lower story, Smt. Darshani Devi came out of her house having knife in her hand and climbed the stairs so as to assault him. He caught hold the hands of Darshani Devi, Chandan Singh also climbed having stone in his hand, he pushed Chandan Singh down and he fell down. He further alleged that he did not cause any marpit with Smt. Darshani Devi. 16. He caught hold the hands of Darshani Devi, Chandan Singh also climbed having stone in his hand, he pushed Chandan Singh down and he fell down. He further alleged that he did not cause any marpit with Smt. Darshani Devi. 16. D.W. 2, Phool Chand has been examined to establish the fact that accused Surendra Singh on the day of occurrence had come to him to repair his tools and he was sitting with him upto 4 P.M. 17. D.W. 3, Gopal Singh has been examined to establish the fact that Smt. Darshani Devi was standing on the stairs with a knife in her hand and accused Balbir Singh caught hold of her hands. At this Chandan Singh climbed the stairs with stone who was pushed down by Balbir Singh. This witness has deposed that he had seen the incident from a distance of 5-10 paces. Other village people were also standing there. 18. The trial court, after hearing learned counsel for the parties and having perused the entire evidence on record found that the prosecution has not been able to prove its case U/S 307/34 I.P.C. and instead convicted the accused persons under Section 452, 324 and 325 I.P.C. read with Section 34 of I.P.C. and sentenced each of them to one year rigorous imprisonment and a fine of Rs. 500/- or in default of payment of fine further three months rigorous imprisonment for the offence under Section 452 I.P.C. and one yea rigorous imprisonment for the offence under section 324/34 I.P.C. and two years rigorous imprisonment and a fine of Rs. 500/- or in default of payment of fine further three months rigorous imprisonment for the offence under Section 325/34 vide impugned judgment and order dated 27.05.1986. 19. Feeling aggrieved by the impugned judgment and order, the convicts preferred the appeal. 20. I have heard the learned counsel for the parties and perused the record. 21. Learned counsel for the appellants has first of all argued that there is enmity between the parties in relation to property of late Shyam Singh and due to this enmity, a false case has been concocted against the appellants. He further submitted that the prosecution witnesses are related to the injured Chandan Singh and Smt. Darshani Devi and the trial court has committed manifest error in believing the evidence of related and partisan witnesses. 22. He further submitted that the prosecution witnesses are related to the injured Chandan Singh and Smt. Darshani Devi and the trial court has committed manifest error in believing the evidence of related and partisan witnesses. 22. On the other hand learned A.G.A. has supported the judgment rendered by the trial court and submitted that the trial court was justified in holding guilty the appellants on the reliable prosecution evidence. 23. Undisputedly there is enmity in between Chandan Singh and his wife Smt. Darshani Devi on the one hand and accused/appellants on the other hand with regard to the property of late Shyam Singh, but it is noteworthy that enmity cuts both ends, where it impels the commission of the crime, so also may be the cause of false implication. In the present case, the facts and circumstances do not tell the false implication of the accused. The defence has not been able to establish the false implication of the accused persons. 24. In the instant case the prosecution has examined in all three eye-witnesses, P.W. 1, Chandan Singh, his wife P.W. 2, Smt. Drashani Devi, both injured, and P.W. 3, Smt. Musi Devi, who is mother of Smt. Darshani Devi. All the above three witnesses are related to each other but if the evidence of these witnesses is found to be natural and cogent, the same cannot be discarded merely on the ground that they are related to each other. In order to substantiate the submissions of the learned counsel for the parties, it is necessary to scrutinize the evidence of the eye witnesses. 25. P.W. 1, Chandan Singh, who is injured of the case has deposed that accused Balbir Singh is the son of Shiv Singh, the uncle (brother of Shyam Singh) of his wife Smt. Darshani Devi. Shyam Singh was the father-in-lawe of this witness Chandan Singh. The half share in the property of Shyam Singh was given Smt. Darshani Devi. This witness Chandan Singh along with his wife Smt. Darshani Devi is living for the last 24 years in the house of his father-in-law Shyam Singh in village Toli. Remaining half share of property, was given to accused Balbir Singh by Shyam Singh in his life time. This witness Chandan Singh along with his wife Smt. Darshani Devi is living for the last 24 years in the house of his father-in-law Shyam Singh in village Toli. Remaining half share of property, was given to accused Balbir Singh by Shyam Singh in his life time. Accused Balbir Singh wanted the share of Chandan Singh and for that reason he was quarrelling with Chandan Singh and his wife Smt. Darshani Devi so that they may leave the village. According to this witness about 8-9 months ago at about 12 noon accused Balbir Singh tied his Jhota (he buffalo) in front of Gaushala of Chandan Singh and the animal broke free and caused damage to the walls and door leaves of the Gaushala and also injuries to goat. This witness remonstrated with Balbir Singh. Thereupon all the four accused persons holding Khukhari and lathis, entered the residential room of Chandan Singh and with intent to commit assault, Balbir Singh grabbed Darshani Devi by neck and assaulted her with Lathi whereas accused Jawahar Singh assaulted her with Khukhari on the head with intent to kill. He further deposed that Khushal Singh grabbed him and Surendra Singh beat him with lathis, legs and fits. He sustained injuries on his face and head. He became unconscious due to injuries. He also deposed that he was beaten inside his house and thereafter the accused dragged him out of the house. On raising alarm Balam Singh and Umrao Singh came there. Thereafter accused persons ran away from the spot. This witness further deposed that accused Khushal Singh, Balbir Singh and Jawahar Singh are real brothers and accused Surendra Singh is their cousin. He further deposed that thereafter he reached at the police station and got prepared the written report by his son Surendra Singh and then it was lodged at the police station. Thereafter he and his wife were sent to hospital for medical examination. This witness also stated that his blood-stained clothes were taken into possession by the police. He has proved the shirt and paijama material exts. 1 and 2 and the broken tooth taken by the doctor in the hospital as material ext. 3. This witness was cross-examined at length. Thereafter he and his wife were sent to hospital for medical examination. This witness also stated that his blood-stained clothes were taken into possession by the police. He has proved the shirt and paijama material exts. 1 and 2 and the broken tooth taken by the doctor in the hospital as material ext. 3. This witness was cross-examined at length. In his cross-examination he has denied the suggestion that at the time of the occurrence his wife Smt. Darshani Devi was having a knife in her hand and she began to climb the stairs abusing accused Balbir singh and accused Balbir Singh caught hold of her hands and tried to snatch the knife and when this witness tried to save his wife, accused Balbir Singh pushed him down the stairs and his wife also fell down the stairs. He has also denied the suggestion of the defence that Khushal Singh and Jawahar Singh came there to pacify the matter. Nothing has been brought from the cross-examination of this witness which may believe his testimony. This evidence of this witness seems to me to be natural and trustworthy. 26. The another injured of the case is P.W. 2, Smt. Darshani Devi, who is the wife of injured Chandan Singh. She has fully supported the version of P.W. 1, Chandan Singh. She has specifically deposed that accused Balbir Singh grabbed her neck and Jawahar Singh assaulted her with Khukhari at her head. She further deposed that her husband was also assaulted by the accused persons. She also stated that her blood-stained Dhoti and blouse were taken into possession by the police. She has proved the above articles as material exhibits 4 and 5. In his cross-examination Smt. Darshani Devi has specifically alleged that she was beaten inside the house. She has also denied the suggestion that she had climbed the stairs with knife in her hand to assault accused Balbir Singh. The evidence of this witness is also reliable and fully supports the prosecution case. 27. The third eyewitness of the occurrence is P.W. 3, Musi Devi, who is the mother-in-law of witness Chandan Singh. Thois witness has deposed that in the month of Jeth Surendra Singh, Balbir Singh, Khushal Singh and Jawahar Singh had assaulted Chandan Singh and Smt. Darshani Devi inside their house. 27. The third eyewitness of the occurrence is P.W. 3, Musi Devi, who is the mother-in-law of witness Chandan Singh. Thois witness has deposed that in the month of Jeth Surendra Singh, Balbir Singh, Khushal Singh and Jawahar Singh had assaulted Chandan Singh and Smt. Darshani Devi inside their house. She was witnessing the occurrence standing nearby the place of occurrence but she could not try to intervene due to the fear of the accused persons. She has further deposed that accused Balbir Singh pressed the neck of Darshani Devi and Jawahar Singh assaulted her with Khukhari. Chandan Singh was caught-hold by Surendra Singh and Khushal Singh beat him with lathi and fists. She has corroborated the prosecution version. In her cross-examination this witness has alleged that she was at a distance of 10-5 steps away from the place of occurrence. She further alleged that her husband had given half share of his property to Balbir Singh accused for her maintenance but he do not maintain her. She also denied the suggestion that accused Surendra Singh did not take part in the marpit. Perusal of statement of this witness establishes that she is an independent witness and there is no reason to disbelieve her deposition. 28. The evidence of P.W. 4, Surendra Singh establishes the fact that after the incident his father had come to him and he brought his parents to the Laxman Jhula police station and thereafter he lodged the written report at the police station. He has deposed that the accused persons had beaten his parents. His father had reached to him in injured condition and narrated the incident. When he reached his house he saw that his mother was lying there in an injured state. Thereafter he along with Raghubir Singh, Balam Singh and Bir Bahadur brought his parents to P.S. Laxman Jhula. He wrote the written repot and lodged it at the police station. This witness has proved the written report Ext. Ka.1 . In his cross-examination, this witness has deposed that he had written the F.I.R. outside the police station. 29. Thus the statements of the aforesaid witnesses clearly prove the occurrence. The accused persons have tried to create defence by adducing defence witnesses. D.W. 1, accused Balbir Singh has stated that his room is situate in the upper side and that of Darshani Devi in the lower side. 29. Thus the statements of the aforesaid witnesses clearly prove the occurrence. The accused persons have tried to create defence by adducing defence witnesses. D.W. 1, accused Balbir Singh has stated that his room is situate in the upper side and that of Darshani Devi in the lower side. He further stated that Smt. Darshani Devi having knife in her hand came out of her house and began to cry and ran on the stairs to beat him. He caught hold of her both the hands, and when Chandan Singh also climbed having stone in his hand, he pushed Chandan Singh down. Thereafter this accused went to P.S. Laxman Jhula to call the police where he lodged the report. P.W. 6, R.P. Kannaujia who was posted as S.O. at P.S. Laxman Jhula has denied that accused Balbir Singh had also lodged any report at the police station and this fact also belies the defence theory. The defence theory set up by this accused seems to be an afterthought. 30. Although D.W. 2 Phool Chand has been produced to depose that at the time of alleged accident accused Surendra Singh was with this witness in order to repair his agricultural tools, but he seems to be a got up witness. This witness has given the month of occurrence as Ashad in his examination-in-chief whereas according to prosecution story, the occurrence happened in the month of Jeth. In cross-examination this witness could not tell the number of tools of accused Surendra Singh he had repaired. He further alleged that he had done the work of blacksmith at a distance of about 5-6 hundreds yards but he could not tell the time when there occurred the incident. This witness also seems to be a got up witness and his testimony cannot be believed. 31. D.W. 3, Gopal Singh, is a neighbour of accused Balbir Singh and he has been examined to give support to the defence theory. This witness has also deposed the defence theory that Smt. Darshani Devi was standing on the stairs with knife in her hand and when Chandan Singh climbed with stone in his hand, accused Balbir Singh pushed him down. In the cross-examination this witness has narrated a different story, that Darshani Devi and Chandan Singh sustained injuries by falling on a wood. 32. In the cross-examination this witness has narrated a different story, that Darshani Devi and Chandan Singh sustained injuries by falling on a wood. 32. The medical evidence in the case fully supports the prosecution version and belies the defence theory. Dr. P.K. Chandola, Medical Officer Government Hospital, Laxman Jhula, has medically examined the injured Smt. Darshani Devi and Chandan Singh on the date of the occurrence i.e. 6.6.1985. He has found 3 incised wounds, one lacerate wound and two contused swelling on the person of Smt. Darshani Devi and 3 lacetated wounds, fracture on right side mandibular angle, swelling over right shoulder and tooth dislocation on the person of Chandan Singh. According to him injury Nos. 1 to 3 of Smt. Darshani Devi were caused by sharp edged weapon and injury Nos. 4 to 6 by some blunt and hard object whereas the injuries of Chandan Singh were caused by some hard and blunt object. Injury Nos. 4 and 4 of Chandan Singh were found to be grievous. In the statement this witness has alleged that injury Nos. 1 to 3 to Smt. Darshani Devi could be caused by use of Khukhari, Lathi and fists. 33. Learned counsel for the accused/appellants further submitted that the F.I.R. was prepared by Surendra Singh P.W. 3, at the police station after consultation with the police and the whole prosecution case initiated on this F.I.R. is liable to be disbelieved in to-to. 34. The above submission of the learned counsel for the appellants is not tenable in the facts and circumstances of the case. The incident was occurred on 6.6.1985 at about 2 P.M. in the broad day-light and the report was lodged at the police station at 5.15 P.M. the same day. The place of occurrence is situated at about 15 kilometers away from the police station Laxman Jhula. Therefore, the delay in lodging the F.I.R. has been fully explained. The F.I.R. was prepared by Surendra Singh (P.W. 4). This witness has stated on oath that on 6.6.1985 his father came to him in the school in injured condition and narrated the whole story of marpit. He reached his house and saw that his mother way lying there in injured condition. Thereafter he with the help of Raghubir Singh, Balam Singh and Beer Bahadur brought his parents to P.S. Laxman Jhula and he wrote the F.I.R. there. He reached his house and saw that his mother way lying there in injured condition. Thereafter he with the help of Raghubir Singh, Balam Singh and Beer Bahadur brought his parents to P.S. Laxman Jhula and he wrote the F.I.R. there. In the cross-examination this witness has deposed that he had written the F.I.R. outside the police station and Daroga Ji was not there with him. Nothing has been brought on the record to show that the police had any grudge against the accused/appellants so as to falsely implicate them in the case. 35. It may not be out of place to mention here that the weapon of assault viz. Khukhari and lathi could not be recovered by the I.O. However, it has come in the evidence that after committing the crime the accused persons fled away from the place of occurrence and it may be the possibility that they have carried with them or destroyed the same. Non-recovery of weapon of assault cannot be a ground to reject the whole prosecution case where the use of weapon has been proved by the oral as well as medical evidence. In the written report, Ext. Ka. 1 at the first instance, the informant had mentioned the weapons of assault viz. Khukhari and Lathi and assault by fists. Further the I.O. has visited the place of occurrence and he had taken into possession the blood-stained and plain earth and recovery memo Ext. Ka. 9 was prepared at the spot. The I.O. also taken possession of blood-stained clothes worn by the injured persons and prepared memo Ext. Ka. 10. 36. Learned counsel for the appellants lastly submitted that the accused persons did not share common intention to kill the injured persons or to knowledge to cause such bodily injuries as could prove fatal. On consideration of facts and circumstances, I am of the view that the accused did not commit assault with intent to kill or to intentionally cause such bodily injuries as are likely to cause the death of the victims and the trial court was justified in not holding guilty the appellants U/S 307/34 I.P.C. It appears that the accused, who are family members residing in the close neighbourhood, were provoked for the assault because Darshani Devi held Balbir Singh responsible for deliberately letting loose his Jhota to cause damage to the Gaushala. The accused already were having grudge and ill-will towards Darshani Devi and her family members for having occupied their family property and for having made attempts to further deprive Balbir Singh of his one half share in the property of Shyam Singh by persuading Musi Devi to make a transfer deed of the property in favour of Surendra Singh son of Chandan Singh. For the above reasons the accused persons intended to teach a lesson to the injured persons and assaulted them after entering the house of the inured persons. The prosecution witnesses have assigned the specific role to each accused/appellant and narrated the participation of each of them in the commission of crime. Therefore, they are liable to punishment for voluntarily causing hurt by sharp edged and blunt weapons, including grievous hurt in further of their common intention. The appellants have rightly been held guilty of committing an offence in furtherance of common intention of causing hurt and grievous hurt punishable U/S 324 and 325 read with section 34 I.P.C. as well as U/S 452 I.P.C. and I find no infirmity and illegality in the finding recorded by the trial court. 37. In view of above discussion I am of the view that the appeal has no substance and is liable to be dismissed. 38. Accordingly the appeal is dismissed. The impugned judgment and order dated 27.5.1986 passed by Sessions Judge, Pauri Garhwal in S.T. No. 42 and 43 of 1985, convicting the accused/appellants Balbir Singh Jawahar Singh Khushal Singh and Surendra Singh U/Ss 452, 324 and 325 read with section 34 I.P.C. and sentencing each of them R.I. one year and a fine of Rs. 500/- and in default of payment of fine to further undergo R.I. for three months U/S 452 I.P.C.; one year’s R.I. U/S 324/34 I.P.C. and two years’ R.I. and fine of Rs. 500/- and in default of payment of fine to further undergo R.I. for three months U/S 325/34 I.P.C., is hereby affirmed. All the sentences shall run concurrently as was directed by the trial court. 39. Accused/appellant Jawahar Singh has died during the pendency of appeal and his death report dated 1.8.2002 submitted by Station Officer, P.S. Laxman Jhula, Pauri Garhwal which was forwarded by C.J.M. Pauri Garhwal to this Court vide his letter dated 2.8.2002. Therefore, the appeal stands abated against accused/appellant Jawahar Singh. 40. 39. Accused/appellant Jawahar Singh has died during the pendency of appeal and his death report dated 1.8.2002 submitted by Station Officer, P.S. Laxman Jhula, Pauri Garhwal which was forwarded by C.J.M. Pauri Garhwal to this Court vide his letter dated 2.8.2002. Therefore, the appeal stands abated against accused/appellant Jawahar Singh. 40. The other accused/appellants Balbir Singh, Khushal Singh and Surendra Singh are on bail. Their bail bonds are cancelled and sureties discharged. They shall be taken into custody forthwith and send them jail in order to serve the sentences awarded to them. 41. Let the record be transmitted back to the court concerned for compliance forthwith.