Judgment Per A.B.CHAUDHARI, J. : The appellants in the present appeal, who are four in number, have challenged the judgment and order of conviction dated 19.3.2004 passed against them in S.T. No.11 of 2003 by the 1st Ad hoc Additional Sessions Judge, Buldana, whereby they were convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Rs.1,000/-, in default to suffer further simple imprisonment for one month. 2. The prosecution case is that on 16.10.2002 at about 7-30 a.m., appellant no.4 Haridas (original accused no.5)-the neighbour of deceased Dhondu Jagtap was cleaning the lane by sweeping when deceased Dhondu and his wife Shantabai (P.W.1) were present in their court-yard. Dhondu objected to appellant no.4 as dust was coming towards his house, whereupon appellant no.4 abused him. Thereafter Dhondu and his wife Shantabai went inside their house. Soon thereafter all the appellants and original accused no.2 entered the house of Dhondu armed with wooden logs and iron bard and they were followed by original accused no.6 Shakuntala and accused no.7 Gokulbai. Appellants and original accused no.2 caught hold of Dhondu and pulled him in his court-yard and assaulted him with those weapons. Original accused no. 6 & 7 also delivered blows to Shantabai (P.W.1) and pushed her in the house and then closed the door of the house. Dhondu succumbed to the injuries caused to him in the court-yard. Hearing hue and cry at the time of incident, Ashok (P.W.4) so also Bapurao Mane (P.W.7) reached on the spot and witnessed the incident. Shantabai thereafter came out of the house to find that her husband was dead and was lying in the court-yard. She went to the house of Police Patil and Sarpanch, but they were absent. Shantabai then went to police station Borakhedi by boarding a bus and lodged the F.I.R. with the said police station at 9 a.m. which was reduced into writing by P.S.O. Pawar (P.W.5). F.I.R. (Ex.51) was thus registered and investigation was handed over to P.S.I. Wavage (P.W.9) who went to the spot of incident and drew spot panchanama (Ex.64) in presence of Bhaurao Patil (P.W.6). Wooden logs, iron bar, earth mixed with blood found on the spot were seized by him in presence of panchas. He drew inquest panchanama (Ex.35). F.I.R. (Ex.51) was thus registered and investigation was handed over to P.S.I. Wavage (P.W.9) who went to the spot of incident and drew spot panchanama (Ex.64) in presence of Bhaurao Patil (P.W.6). Wooden logs, iron bar, earth mixed with blood found on the spot were seized by him in presence of panchas. He drew inquest panchanama (Ex.35). Dead body was forwarded for post mortem. Dr.Sandesh Rathod (P.W.10) conducted post mortem and issued the report (Ex.82). The medical officer found five external and four internal injuries on the dead body of Dhondu. He was of the opinion that those injuries were sufficient in the ordinary course of nature to cause death. In his opinion, the cause of death was shock due to injury to brain due to fracture of skull. 3. Bundles of clothes of deceased were attached under seizure memo (Ex.69) in presence of panchas. Clothes were also attached from accused no.1 to 5 under seizure memos (Ex. 72, 74 & 76). Statements under Sections 161 and 164 of Code of Criminal Procedure were recorded. The articles with blood stains were sent to chemical analyser for examination. Report of Chemical Analyser is at Ex.78. After completion of investigation, charge-sheet came to be filed in the Court of J.M.F.C. Malkapur. Thereafter the case was committed to the Court of Sessions to be tried. 4. Charge was framed under Section 302 read with Section 34 of Indian Penal Code so also under Sections 147, 148, 149, 323 and 448 of Indian Penal Code against all the seven accused, to which they pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as ten witnesses in support of its case. The accused persons also examined one witness Sunil Namdeo Mane (D.W.1) in support of their defence. The defence specifically taken by the accused persons was that on the fateful day at about 7-30 a.m. there was a quarrel between deceased Dhondu and appellant no.4/original accused no.5 Haridas. Deceased Dhondu armed with wooden log rushed towards Haridas and tried to deliver a blow of wooden log to Haridas. Haridas in order to ward off the blow pushed Dhondu with force, as a result of which Dhondu fell down in his court yard on `Tulsivrundawan' made up of stones and clay, which broke down and he suffered injury on his head. This is the account narrated by Sunil (D.W.1). 6. Haridas in order to ward off the blow pushed Dhondu with force, as a result of which Dhondu fell down in his court yard on `Tulsivrundawan' made up of stones and clay, which broke down and he suffered injury on his head. This is the account narrated by Sunil (D.W.1). 6. The learned 1st Ad hoc Additional Sessions Judge, Buldana, framed the points for determination and recorded findings after hearing the counsel for both the parties. He negatived the case of defence that the death of Dhondu was accidental and recorded a finding that it was homicidal. He believed the testimony of Shantabai (P.W.1) and Bapurao Mane (P.W.7) which was corroborated by other evidence and held that out of seven accused persons, except accused no. 2, 6 and 7, the appellants herein were guilty of committing murder of Dhondu. He thus acquitted accused no. 2, 6 and 7 of the charges framed against them. The learned trial Judge rejected the alternate submission made by the appellants that at the most they could be held guilty under Section 304-II of Indian Penal Code as the incident could be called a quarrel at the spur of moment. 7. Mr.V.M.Deshpande, learned counsel for appellant no.1 and Mr.S.R.Deshpande, learned counsel for appellants 2 to 4, made the following submissions - (i) Shantabai (P.W.1), who is wife of deceased Dhondu set the law in motion by lodging report at the police station regarding the incident of murder. She has roped in all the members of the family including accused no.2 Namdeo who is disabled and even unable to walk and ladiesaccused no. 6 and 7, which accused persons were ultimately acquitted by the trial Court. The trial Court thus disbelieved her version insofar as the acquitted accused persons are concerned. She is not the witness speaking truth as her attempt was to put everybody in the net of prosecution. (ii) Shantabai (P.W.1) is an interested witness and admittedly having enmity with accused persons over the dispute which is evident from the earlier quarrel that took place when deceased Dhondu had inflicted a blow of knife on accused no.2 Namdeo and in respect of which incident he was being prosecuted in a criminal case for the offence under Section 324 of Indian Penal Code. She is an interested witness and her evidence is liable to be rejected. She is an interested witness and her evidence is liable to be rejected. (iii) Bapurao (P.W.7) is not an eye witness since according to him the door was closed from outside and Shantabai was in the house and the incident of assault had taken place in the court-yard. (iv) Insofar as F.I.R. (Ex.51) is concerned, same is not recorded in the language of Shantabai (P.W.1) but is recorded by the concerned Police Sub Inspector in his language. Second part of the F.I.R. shows that the writer of the F.I.R. summarized the narration in the F.I.R. and inserted the name of accused no.2 Namdeo as an assailant when the same is not to be found in the first part of F.I.R. which shows that the writer of the F.I.R. was clearly interested in impleading the accused persons falsely and there is reason to believe that the F.I.R. itself was tainted. (v) Bapurao (P.W.7) is another interested eye witness. There is no dispute that wife of Bapurao and Shantabai (P.W.1) are real sisters and at the instance of this witness deceased Dhondu and his wife came to reside at village Didola. This witness has admitted that due to his old age he is unable to work and his eye sight is also weak. Shantabai (P.W.1) has admitted that her court yard is not visible from the court yard of Bapurao (P.W.7). Bapurao has admitted that he walks slowly and with the help of stick and required half an hour to return to his house after easing. His evidence is liable to be rejected since he appears to have arrived at the spot after the incident and, therefore, he is not an eye witness. (vi) Mr.Deshpande, learned counsel, pointed out certain omissions and contradictions in the evidence of Bapurao (P.W.7) and urged this Court to disbelieve his evidence, the same being full of improvements. As regards seizure of clothes from the accused persons, Mr.Deshpande argued that Samadhan Telang (P.W.8), who is said to have acted as panch to the seizure memo of clothes from the accused, was working as Home Guard directly under the control and supervision of police station Borakhedi and, therefore, is not a witness who can be relied upon. As regards seizure of clothes from the accused persons, Mr.Deshpande argued that Samadhan Telang (P.W.8), who is said to have acted as panch to the seizure memo of clothes from the accused, was working as Home Guard directly under the control and supervision of police station Borakhedi and, therefore, is not a witness who can be relied upon. However, insofar as blood found on the clothes of the appellants 2, 3 & 4 is concerned, as per the report of chemical analyser, no explanation has been furnished by the accused persons nor Mr.Deshpande could throw any light thereon. However, blood found on the seized articles, i.e. Weapons is concerned, Mr.Deshpande argued that chemical analyser's report does not show that human blood was detected on those articles. Alternatively, Mr.Deshpande argued that no offence under Section 302 of Indian Penal Code is made out and looking to the nature of quarrel that took place, even according to prosecution, no intention can be inferred about any determination on the part of the accused persons to kill Dhondu and hence according to him, at the most, the offence under Section 304-II of Indian Penal Code is made out. 8. Per contra, Mr.Mirza, learned A.P.P., opposing the submission made by the learned counsel for the appellants argued that F.I.R. is lodged at about 9-00 a.m. while the incident took place at about 7-30 a.m. Shantabai (P.W.1) after the incident went to police patil and Sarpanch and they being absent in the village, she went to the bus stop and boarded the available bus for going to police station. She was made to sit in the police station for some time. F.I.R. is thus promptly lodged and there was hardly any scope for tampering the said document. According to Mr.Mirza, the defence has not at all shown as to why P.S.O. Pawar, who reduced into writing the F.I.R., would implicate the accused persons or all other members of the family of the accused persons and no previous enmity with him has been even suggested. It might be true that the F.I.R. was written by P.S.O. Pawar in his own language but that does not vitiate the narration which was tendered by Shantabai (P.W.1) immediately after the incident. Merely because the name of accused no.2 Namdeo is found in second part of F.I.R., which is reduced into writing by P.S.O. Pawar, the entire narration cannot be rejected. Merely because the name of accused no.2 Namdeo is found in second part of F.I.R., which is reduced into writing by P.S.O. Pawar, the entire narration cannot be rejected. 9. It may be true that Shantabai (P.W.1) and Bapurao (P.W.7) are related witnesses, but then their evidence is not unnatural. Their evidence is not at all shattered in cross-examination on material points. On the contrary, both of them are natural witnesses, looking to the time when the main incident took place. The defence did not dare to confront Bapurao (P.W.7) directly on the capacity of this witness to see. Merely because the eye sight of Bapurao was weak, it does not follow that Bapurao was totally blind and could not see and identify the accused persons. His evidence is thus worthy of credence. 10. The defence put forth by accused persons is wholly improbable as the evidence of defence witness Sunil is liable to be rejected outrightly. The trial Court has given appropriate reasons for rejecting his evidence as there is voluminous evidence tendered by the prosecution which overshadows the evidence tendered by D.W.1 Sunil. 11. None of the accused persons on whose clothes blood of “O” group has been found, have at all dared to explain the same. In the wake of fact that their blood group is “A”, the burden of proof shifted on the accused persons to explain as to how the blood of “O” group came on their clothes. Failure on their part to explain clearly shows that a strong scientific evidence is proved against them. 12. Mr.Mirza then referring to the injuries-external as well as internal on the person of deceased Dhondu, argued that there were several injuries caused to the deceased on the vital part and by a mere push given by appellant no.4, as alleged by defence, all these injuries could not have been caused. Presence of accused persons is fortified by the evidence of Sunil (D.W.1). The trial Court has correctly appreciated the evidence on record and came to the proper conclusion. No other view is possible and benefit of doubt cannot be given to the accused persons. Presence of accused persons is fortified by the evidence of Sunil (D.W.1). The trial Court has correctly appreciated the evidence on record and came to the proper conclusion. No other view is possible and benefit of doubt cannot be given to the accused persons. Opposing the submission regarding alternate plea about the offence being under Section 304-II, Mr.Mirza vehemently argued that the accused persons made a preparation and thereafter entered the house of Dhondu and all of them started assaulting him till he fell on the ground and even thereafter as noticed by Bapurao (P.W.7). Their intention was thus writ large, namely to kill Dhondu. He, therefore, prayed for dismissal of the appeal. 13. We have gone through the entire evidence-oral as well as documentary with the help of learned counsel for parties. At the outset, it is seen that the incident took place at about 7-30 a.m. at the house of Shantabai (P.W.1) and within 1 ½ hour she lodged report with the police station. Immediately after the incident she had gone to the houses of police patil and Sarpanch to inform them about the incident but both of them were absent and thereafter she went to the bus stop for going to the police station Borakhedi. Except for the time spent by her in going to the houses of police patil and Sarpanch and then finding them absent and then waiting at the bus stop for boarding a bus and the time spent in journey, there is absolutely no material to show that Shantabai (P.W.1) had any conversation with anybody while lodging the report to police station nor a rustic woman like her had any time for concoction. Thus her immediate conduct in lodging the F.I.R. about the incident with necessary details lends assurance to the prosecution case. 14. Now coming to the sworn testimony of Shantabai in the Court, it is seen that there was a quarrel between her husband Dhondu and appellant no.4 over cleaning of court-yard and thereafter both Shantabai and her husband went inside their house. Soon thereafter all the accused persons entered their house and started beating Dhondu . Accused no.1 to 3 were having sticks with them while accused no.4 was having iron bar. Then they pulled Dhondu outside the door. This evidence has not been shaken in cross-examination. Soon thereafter all the accused persons entered their house and started beating Dhondu . Accused no.1 to 3 were having sticks with them while accused no.4 was having iron bar. Then they pulled Dhondu outside the door. This evidence has not been shaken in cross-examination. From her evidence it is clear that the accused persons entered her house with weapons and started assaulting Dhondu with weapons in their hands and thereafter pulled him out of the house, and immediately thereafter this witness Shantabai found her husband dead in the court-yard. The witness identified the weapons, namely sticks, iron bar and also the clothes of deceased Dhondu when shown before the Court. She has stoutly denied the suggestion that her husband had fallen on Tulsivrundavan and received the injuries. The defence could bring out some minor omissions. It is well settled that F.I.R. is not an encyclopaedia and, therefore, the omissions pointed out before us in the F.I.R. are not material so as to discard her testimony. 15. Bapurao Mane (P.W.7) is also an eye witness. It is true that he is close relative of deceased Dhondu inasmuch as Shantabai (P.W.1) and wife of this witness are real sisters. Only because he is related witness, his testimony cannot be rejected on that ground, but his evidence will have to be scrutinised cautiously. Bapurao states in his evidence that on the fateful day after he returned from nature's call to his house, he heard noise of sticks and, therefore, went to the house of Dhondu. He found that the accused persons were beating him by sticks and iron bar. Thereafter Shantabai came out of the house and then went to the houses of police patil and Sarpanch. He identified the sticks and iron bar. Insofar as the actual incident of assault on Dhondu is concerned, there is no discrepancy in her evidence. Though there appears to be some discrepancy regarding use of particular weapon by particular accused, in the light of the surrounding circumstances including the one about his poor eye sight, it cannot be said that on that count his evidence should be brushed aside. He has asserted that he saw and identified all the accused persons who were assaulting Dhondu, though his eye sight is weak, but it was never elicited from him that he could not see the incident at all because of his weak eye sight. He has asserted that he saw and identified all the accused persons who were assaulting Dhondu, though his eye sight is weak, but it was never elicited from him that he could not see the incident at all because of his weak eye sight. It is not possible to accept the argument that he was unable to see the incident. The evidence of Bapurao, therefore, will have to be accepted. 16. Now coming to the medical evidence, Dr.Sandesh Rathod (P.W.10), who conducted post mortem, noticed the following injuries on external and internal examination External injuries : “1. Contusion on right arm 13 x 5 cm. Middle of byceps. 2. Contusion and lacerated wound 2 x ½ cm. ½ cm. Deep, two in number on right thigh medial to lateral side. 3. contusion on right side below scapula 1 x 1 cm. 4. Contusion and lacerated wound 1 cm. ½ cm. deep ½ cm. On right scapula upper side with fracture of right scapula. 5. right side ear lacerated wound, 5 cm. Deep 1 cm. Upward toward cavity of skull with oozing of blood with crush injury to the right ear (tear). Internal injuries : 1. Contusion and lacerated wound 5 cm. X 5 cm. Deep ½ cm. on the top of the skull. 2. Lacerated wound on occipital region, 4 cm. X 1 cm. With depressed fracture of skull, 1 cm. Deep. 3. Fracture of skull from lambyoid suture from right ear back to left ear back .31 cm. X ½ cm. 4. Depressed fracture at i.e. whole right lateral orbital margin to right side of occipital bone, 10 cm. X 8 cm. upto right side temporal with brain tissue outside the skull cavity covering fracture side tear present.” Perusal of the above injuries clearly show that the injuries can be caused by use of sticks and iron. Contesting the defence at this juncture along with the testimony of Sunil (D.W.1), it can easily be seen that as per version of Sunil appellant no.4 pushed Dhondu who fell on Tulsivrundavan and received injuries from the stones therein. There cannot be five injuries if Dhondu was pushed and fell once and all the injuries are attributable to the weapons used, namely sticks and iron bar. All the injuries were on vital part. The death occurred on account of shock due to injury to brain due to fracture of skull. There cannot be five injuries if Dhondu was pushed and fell once and all the injuries are attributable to the weapons used, namely sticks and iron bar. All the injuries were on vital part. The death occurred on account of shock due to injury to brain due to fracture of skull. The defence version will have to be thus rejected. 17. The report of chemical analyser (Ex.78) shows that the blood group of appellant nos. 1 & 4, Sunil and Haridas, was “A” and the blood group of deceased was “O”. It is further seen that the shirt and pant of appellant Sunil were having human blood while the shirt of appellant no.2 Eknath had human blood of group “O”. Similarly, the pant of appellant no.3 Bhagwat was having human blood and his shirt was having human blood of group “O”. When the blood group of accused person was “A”, how the blood of “O” group came on their clothes, ought to have been explained by these accused persons, but no attempt has been at all made by any of the accused persons to that effect. The testimony of panch witness Samadhan (P.W.8) cannot be brushed aside merely because he was Home Guard directly under police station Borakhedi and no enmity against him has been shown by the accused persons. In our opinion, this is very strong evidence against the accused, for which there is no answer. Further, the wooden logs and iron bar – both were found stained with blood and again there is no explanation from the accused person regarding finding of blood on the weapons. 18. To sum up, the prosecution has established beyond any doubt that the appellants were the persons who were the aggressors who entered the house of deceased Dhondu, assaulted him, pulled him out of the house and again attacked him till his death. The determinative nature of attack, looking to the injuries shown in the post mortem, lead us to believe that the case would not fall under Section 304-II of Indian Penal Code and it will have to be held to be a case of murder. We find no merit in the appeal. The appeal is, therefore, dismissed. The judgment and order of conviction and sentence passed by the trial Court is confirmed. Appeal dismissed.