Judgment ( 1. ) THIS criminal appeal under Section 374 (2) of the Code of Criminal procedure has been filed being aggrieved by the judgment, finding and sentence dated 22. 01. 1994 passed by First Additional sessions Judge, Sehore in Sessions Trial No. 7/93, whereby the appellant has been convicted under Section 304 Part-II of IPC and sentenced to R. I. for four years with fine of Rs. 5,000/-in default of payment of fine to suffer S. I. for one year. ( 2. ) PROSECUTION case in short is that Tohrab Khan lodged the report at police Station, Jawar on 25. 04. 1992 at about 22. 35 PM to the effect that at about 10 PM his daughter Parveen informed that family members of Mukhtyar Khan and Raffu Khan are beating to najeer Khan. Therefore, he reached at his house and saw that accused persons were causing marpeet of Najeer Khan by Lathi, lohangi, Gupti and Sword etc. He intervened but he was also beaten by them. Chhote Khan, Mahboob Khan and Iqbal Khan also came there but they were also beaten. This appellant inflicted sword blow to Najeer Khan on account of which he fell down and became unconscious and died. On the basis of this report Crime no. 92/92 under Sections 302, 147, 148, 149 and 323 of I. P. C. was registered. Panchanama of dead body of Najeer Khan was prepared. His dead body was sent for postmortem examination which was conducted by Dr. Krishnakant Chaturvedi. According to him, death was caused due to hemorrhagic shock resulting from stab injury to the chest. The death was homicidal in nature. Clothes of deceased were seized. Other injured persons were also got medically examined. The accused persons were arrested. Their disclosure statements under Section 27 of Indian Evidence Act were recorded and in pursuance thereto the weapons of offence were recovered. Blood stained and controlled soil were also seized from the spot. Map was prepared. Statements of the witnesses under Section 161 of Cr. P. C. were recorded. After completing the usual investigation, charge sheet was filed in the Court of C. J. M. , sehore who committed the case to Sessions Court for trial. ( 3. ) ACCUSED persons were charged under Sections 147, 302/149, and 323/149 of I. P. C. They denied the guilt and claimed to be tried mainly contending that they have been falsely implicated. ( 3. ) ACCUSED persons were charged under Sections 147, 302/149, and 323/149 of I. P. C. They denied the guilt and claimed to be tried mainly contending that they have been falsely implicated. Prosecution examined as many as 13 witnesses but the accused persons did not examine any witness in his defence. After appreciating the evidence trial Court acquitted them from the charge under Sections 147, 302/149 and 323/149 of I. P. C. but convicted this appellant under Section 304 Part-II of I. P. C. and other accused persons under Section 323 of I. P. C. and sentenced as stated in impugned judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by this appellant on the grounds mentioned in the memo of appeal. ( 4. ) LEARNED counsel for the appellant submitted that trial Court has not appreciated the evidence in proper perspective. According to f. I. R. , this appellant inflicted sword blow but the gupti was seized from him vide seizure memo Ex. P/19. The witnesses developed the theory regarding causing of marpeet with gupti by this appellant in order to make consistent their statements with medical evidence. Learned counsel further submitted that when other accused persons were convicted under Section 323 of I. P. C. from the same set of evidence then it was not obligatory to convict this appellant under Section 304 Part-II of I. P. C. Therefore, finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. ( 5. ) ON the contrary Shri. Deepak Awasthy, learned Govt. Advocate appearing on behalf of the respondent/state supported the impugned judgment, finding and sentence mainly contending that prosecution has proved the case beyond reasonable doubt against the appellant. Therefore, the finding of guilt is proper hence does not call for any interference. ( 6. ) THE main point for consideration in this appeal is that whether the trial Court has committed an illegality in convicting and sentencing the appellant under Section 304 Part-II of IPC? ( 7. ) THE genesis of the crime is that Najeer Khan was sleeping with his family members in his house and Kaleem showed the light of torch for which he objected saying that the privacy of the ladies are being disturbed. Some altercation took place in between them and chhote Khan subsided the matter. ( 7. ) THE genesis of the crime is that Najeer Khan was sleeping with his family members in his house and Kaleem showed the light of torch for which he objected saying that the privacy of the ladies are being disturbed. Some altercation took place in between them and chhote Khan subsided the matter. Thereafter Kaleem came alongwith other accused persons armed with Lathi, Lohangi, Gupti and sword and started assaulting Najeer Khan, Mahboob Khan and Iqbal Khan. Parveen (PW-4) aged 10 years informed her father tohrab Khan (PW-1) who came there and saw the incident. ( 8. ) TOHRAB Khan (PW-1), Mehboob Khan (PW-2), Iqbal Khan (Pw-4), chhote Khan (PW-5) and Babu Khan (PW-6) have unequivocally deposed in one voice that five accused persons were assaulting najeer Khan with Lohangi, Dharia, Patti, Gupti etc. and rest accused persons were assaulting Mehboob Khan (PW-2) and Iqbal khan (PW-4 ). Tohrab Khan (PW-1) was also assaulted. Najeer khan sustained injuries on the different parts of his body. He became unconscious and thereafter he died. The injured persons sustained injuries. Tohrab Khan (PW-1) has lodged the report ex. P-1 at police station Jawar which was written by Vishnu Prasad pandey (PW-12 ). Marg intimation Ex. P-2 was also recorded by him. Panchanama of dead body Ex. P-32 was prepared and dead body was sent for postmortem examination which was conducted by Dr. Krishnakant Chaturvedi (PW-8) who found the following external injuries on his dead body. (i)One stab wound over the left side chest at the level of 6th I/c space 2? medial to mid axillary line. The wound having clean cut edges (parallel reverted) having sharp angle, obliquely placed size ?? x ?? depth 2 ?? direction below upward medially and obliquely. (ii) Abrasion over the right shine tibia 1? x 1? x 2? below knee joint. (iii) Bruise over forehead left side ? ? x ??. (iv) Bruise over the right forearm reddish 2? x ?? just 1? above wrist joint. All injuries are ante mortem in nature. (v) Abrasion ?? x ?? over the left ear pinna clotted blood. According to his opinion death was due to hemorrhagic shock resulting from stab injury. This injury was caused by hard, sharp and penetrating instrument and homicidal in nature and sufficient to cause death in normal course of life. Duration is within 24 hours since postmortem examination. ( 9. (v) Abrasion ?? x ?? over the left ear pinna clotted blood. According to his opinion death was due to hemorrhagic shock resulting from stab injury. This injury was caused by hard, sharp and penetrating instrument and homicidal in nature and sufficient to cause death in normal course of life. Duration is within 24 hours since postmortem examination. ( 9. ) ACCORDING to his opinion, injury could have been caused by the instrument like Gupti but not by sword. However, he has admitted that no instrument was sent for examination. Thus from the analysis of medical evidence it is evident that the death of Najeer khan was homicidal in nature. ( 10. ) TOHRAB Khan (PW-1) has stated that Mukhtyar Khan, Annu, kaleem, Jallu and Anis were beating his father in law. Annu was having Gupti. He has explained that in F. I. R. it was mentioned that Annu was having sword but it was mentioned due to his being perplexed at that time. In fact he was having Gupti and was causing marpeet to Najeer Khan by Gupti. The contradictions and omissions have been brought in his evidence from F. I. R. (Ex. P-2)and police statement Ex. D-1 as to what weapon this appellant was at that time carrying on. ( 11. ) NO doubt there is discrepancy regarding the weapon which he has already explained. He evidence is intact regarding inflicting gupti blow to Nazeer Khan by this appellant. The discrepancy is not so serious as to discard the testimony of this witness. ( 12. ) LIKEWISE Mahboob Khan (PW-2), Iqbal Khan (PW-4), Chhote Khan (PW-5) and Babu Khan (PW-6) have also supported the version of tohrab Khan (PW-1) by deposing that only five accused persons were assaulting Najeer Khan and rest were assaulting to Mehboob khan and Iqbal Khan. This appellant Annu was having Gupti and inflicted its blow at the chest of Najir Khan. The similar contradictions have been brought on record from their police statement Ex. D-2 Ex. D-4, Ex. D-5 and Ex. D-6 but the same are not sufficient to discredit their testimony. These witnesses are said to be an eyewitnesses. Out of them Mehboob Khan (PW-2) and Iqbal khan (PW-4) have sustained injuries as is evident from the evidence of Dr. Hiralal Dalodriya (PW-13) and the medical reports ex. P-40 and P-41. D-2 Ex. D-4, Ex. D-5 and Ex. D-6 but the same are not sufficient to discredit their testimony. These witnesses are said to be an eyewitnesses. Out of them Mehboob Khan (PW-2) and Iqbal khan (PW-4) have sustained injuries as is evident from the evidence of Dr. Hiralal Dalodriya (PW-13) and the medical reports ex. P-40 and P-41. This incident is of night of the house of Najir khan where the presence of his sons Mehboob Khan and Iqbal khan can not be doubted. Chhote Khan (PW-5) is the brother of najeer Khan hence his presence at the spot also cannot be doubted. Tohrab Khan (PW-1) was also residing at some distance from the house of Najeer Khan who immediately came to the spot when his daughter informed him and saw the incident. ( 13. ) THUS all these eyewitnesses have stated in one voice that appellant was having Gupti and caused marpeet to Nazeer Khan. It is also borne out from the evidence of some witnesses that this appellant inflicted the gupti blow at the chaste region of Nazeer Khan and dr. Krishnakant Chaturvedi (PW-8) found injury of chest fatal to the life of Nazeer Khan. ( 14. ) LEARNED counsel for the appellant submitted that these eyewitnesses are not independent witnesses therefore no reliance can be placed on their testimony. But the contention of the learned counsel is not acceptable for the simple reason that the presence of these witnesses at the spot is not doubtful. They have witnessed the incident. Out of them two persons have also sustained the injuries in the same incident. In such situation on account of relationship only their testimony cannot be discarded. Furthermore, their evidence finds support from the medical evidence also. ( 15. ) THE next contention of the learned counsel for the appellant is that there is inconsistency in evidence regarding the weapon which the appellant was having at that time. As mentioned earlier there is discrepancy in their evidence as to whether he was having sword or Gupti at that time. But all the witnesses have unequivocally stated that he was having Gupti at that time by which he inflicted the injuries to Nazeer Khan. Thus Tohrab Khan (PW-1) has explained the discrepancy in this regard and such explanation may be accepted in the facts and circumstances of this case. But all the witnesses have unequivocally stated that he was having Gupti at that time by which he inflicted the injuries to Nazeer Khan. Thus Tohrab Khan (PW-1) has explained the discrepancy in this regard and such explanation may be accepted in the facts and circumstances of this case. Thus such inconsistency is not so serious as to throw the entire prosecution case over board. ( 16. ) THE next contention of the learned counsel for the appellant is that the trial Court has convicted other accused persons under Section 323 of I. P. C. and from the same set of evidence the conviction of this appellant under Section 304 Part-II is unwarranted. But this contention is also not acceptable for the simple reason that this appellant is the author of the crime. Nazeer Khan sustained fatal injury of Gupti inflicted by this appellant, therefore, keeping in view the part played by this appellant in committing this offence he has been so convicted. ( 17. ) FURTHER the prosecution has also based its case on the disclosure statements given by the accused persons and seizure of the weapon of offence recovered in pursuance thereof Gupti has been seized from this appellant. This gupti was sent for chemical examination to F. S. L. Sagar from where the report Ex. P/38 has been received it was found containing blood stains. The clothes of nazeer Khan were also seized and on examination they were also found containing blood stains. Thus, F. S. L. report supports the prosecution case. ( 18. ) ON appreciation of entire evidence adduced in the case it can be said that the trial Court has rightly found him guilty under Section 304 Part-II of I. P. C. I found no illegality, infirmity and perversity in such finding hence the same is hereby affirmed. ( 19. ) LEARNED counsel for the appellant submitted that the appellant has suffered the jail sentence of 18 months, therefore, he be released on the period already undergone. But this contention of the learned counsel for the appellant is not acceptable keeping in view the seriousness of the act committed by this appellant. The sentence awarded is not excessive hence the same is hereby affirmed. The appeal is devoid of merit and deserves to be dismissed. ( 20. ) CONSEQUENTLY, the appeal fails and is dismissed accordingly. The appellant is on bail. The sentence awarded is not excessive hence the same is hereby affirmed. The appeal is devoid of merit and deserves to be dismissed. ( 20. ) CONSEQUENTLY, the appeal fails and is dismissed accordingly. The appellant is on bail. His bail bonds are cancelled. He be directed to appear before C. J. M. , Sehore on 04. 10. 2008 for serving out the remaining part of the sentence.