JUDGMENT : (P.R.BORKAR, J.) 1. This is an appeal preferred by three accused persons being aggrieved by the order of conviction and sentence passed by the learned Ad-hoc Additional Sessions Judge-III, Aurangabad, in Sessions Case No. 134 of 2005 decided on 28.2.2007, whereby the appellant nos. 1 and 2 are convicted of offence punishable under Section 302 r/w 34 of the Indian Penal Code and each is sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/-, in default to further suffer rigorous imprisonment for 3 months. Appellant no.3 Mannan @ Munna is convicted of offence punishable under Section 307 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for 3 months. 2. As per charge framed at Exh.4 by the learned Additional Sessions Judge, appellant nos. 1 and 2 who are husband and wife are charged of committing murders of Sk.Hussain Sk.Chand and Sk.Asad Sk.Kasam in furtherance of their common intention on 26.3.2005 between 8.30 p.m. to 9.00 p.m. at Kadrabad, Taluka and District Aurangabad. Appellant no. 3 who is the son of appellant nos. 1 and 2. Along with juvenile offender Kadir Gafur, he is said to have attempted to commit murder of pw2-Sk.Nawab and thus appellant no.3 is charged of committing offence punishable under Section 307 r/w 34 of the Indian Penal Code. The offences were committed by all the appellants during same incident. 3. Briefly stated, facts as narrated in the original first information report Exh.20 are that on 26.3.2005 at about 8.30 p.m. to 9.00 p.m. near the mosque at Kadrabad and in front of the Grampanchayat office, appellant no.3 Mannan @ Munna gave blows with knife to Sk.Asad. Thereafter appellant nos. 1 and 2 and juvenile offender Kadir who were all armed with weapons like knives gave blows to pw2-Sk.Nawab, Sk.Hussain, and pw3-Sk.Pashu, as a result, all the four injured fell down. The appellants and the juvenile offender ran away. Thereafter injured were taken to the Government Medical College and Hospital, Aurangabad where the doctor declared Sk.Hussain Sk.Chand and Sk.Asad Sk.Kasam as dead. Pw2-Sk.Nawab and pw3-Sk.Pashu were admitted for treatment. 4. A.P.I. Bahure (pw13) learnt about the incident and rushed to the Government Medical College and Hospital. The injured were not in a position to give statements. Pw1-Sk.Rafiq was present. Thereafter injured were taken to the Government Medical College and Hospital, Aurangabad where the doctor declared Sk.Hussain Sk.Chand and Sk.Asad Sk.Kasam as dead. Pw2-Sk.Nawab and pw3-Sk.Pashu were admitted for treatment. 4. A.P.I. Bahure (pw13) learnt about the incident and rushed to the Government Medical College and Hospital. The injured were not in a position to give statements. Pw1-Sk.Rafiq was present. His complaint was recorded. Crime was registered. Thereafter A.P.I. Bahure drew inquest panchanamas on dead bodies. He also drew spot panchanama. Thereafter postmortems were performed on the dead bodies at the request of police. At the spot of the incident blood stains were found, so sample of blood stained earth and simple earth were taken. Accused nos.1 and 2 and juvenile offender-Kadir were arrested. So far as accused no.3 is concerned, it has come in evidence that after the incident he went to his aunt’s house at Pimpri Raja. He informed police of Karmad police station that he was at Pimpri Raja. Within half an hour of the intimation, Karmad police went and arrested accused no.3-Mannan and handed him over to Chikalthana police within whose jurisdiction the offence was committed. 5. During investigation, accused no.1-Budhan discovered two knives and accused no.3-Mannan discovered two knives. Police also recorded statements of injured and other witnesses and finally sent chargesheet to the Court. 6. At the time of trial, prosecution examined in all 13 witnesses. Accused examined 2 persons as defence witnesses. First is Dr.Suchitra Rathod who had examined accused no.3-Mannan and issued certificate Exh.116. Accused no.3-Mannan @ Munna gave deposition at Exh.117. Thus accused no.3-Mannan has given a statement on oath and subjected himself to the cross-examination. According to him, his father accused no.1 on the day of the incident, in the evening, had consumed liquor and was abusing his nephew Abdul Khaled as he had to pay Rs.1,500/- to pw2-Sk.Nawab, pw3-Sk.Pashu and others. It is said that pw2-Sk.Nawab heard abuses and thought that abuses were addressed to him and so he came to question accused no.1 and started abusing him. People had gathered. They took Sk.Nawab to his house. There was darkness. Thereafter one Dagdu Anwarshah came to the house of accused/appellants and told them that Pashu, Nawab and others were going to attack them and, therefore, accused nos. People had gathered. They took Sk.Nawab to his house. There was darkness. Thereafter one Dagdu Anwarshah came to the house of accused/appellants and told them that Pashu, Nawab and others were going to attack them and, therefore, accused nos. 1 and 2 were about to go to the police station on motor cycle, but at that time pw2-Sk.Nawab and others came and attacked appellant nos. 1 and 2 who raised hue and cry. At that time, appellant no.3 Mannan saw pw2-Sk.Nawab, pw3-Sk.Pashu, deceased Sk.Asad, pw5-Sk.Shamsu and one Banu. They were beating his parents i.e. appellant nos. 1 and 2. Deceased Sk.Hussain caught hold of hair of his mother and, therefore, he intervened, rescued his parents, took them into the house and latched the door from inside. Thereafter deceased and injured started beating him and Kadir. Pw3-Sk.Pashu gave stick blow on his head. He sustained bleeding injury. Yusuf inflicted injury with sharp pointed weapon on his left thigh. He also sustained injury on his left thumb. Pw2-Sk.Nawab came to him with knife, but DW2-Mannan gave fist blow on right shoulder of Sk.Nawab and therefore the knife of Sk.Nawab fell down. Dw2-Mannan picked up the knife and gave blow to Sk.Nawab who fell down in the drainage. In the darkness he also gave blows to others who were assaulting them. There was darkness due to night and he felt that he could not survive and, therefore, inflicted blows. It is further said that thereafter he went to Pimpri Raja, intimated Karmad police and Karmad police arrested him and handed over to Chikalthana police. 7. As per prosecution witnesses, particularly pw2-Sk.Nawab and pw3-Sk.Pashu the incident took place because Abdul Khaled the nephew of appellant no.1-Budhan had purchased a bullock from pw5-Sk.Shamsu in the weekly bazar at Adul for Rs.4,100/-. Out of it, Abdul Khaled paid Rs.2,600/- and remaining Rs.1,500/- were to be paid on Friday. Appellant no.1-Budhan had remained surety for the payment of the banance by Abdul Khaled. The payment was not made on Friday and, therefore, at the say of pw5-Sk.Shamsu, Sk.Nawab and deceased Sk.Asad demanded money to appellant no.1-Budhan who abused them. Thereafter appellant no.1 met them near Grampanchayat office. There remaining appellants and juvenile offender came. They were armed with knives and they inflicted injuries to the deceased persons and injured prosecution witnesses. 8. The payment was not made on Friday and, therefore, at the say of pw5-Sk.Shamsu, Sk.Nawab and deceased Sk.Asad demanded money to appellant no.1-Budhan who abused them. Thereafter appellant no.1 met them near Grampanchayat office. There remaining appellants and juvenile offender came. They were armed with knives and they inflicted injuries to the deceased persons and injured prosecution witnesses. 8. It is argued before us that the learned Trial Judge did not consider that appellant no.3 who was injured had given statement on oath. There were various omissions and contradictions in the statements of eye witnesses. They had improved the story. They are not reliable. The injuries of appellant no.3 and juvenile offender were not explained and thus genesis of prosecution case was concealed and as such the prosecution has come with a false case and, therefore, appellants be acquitted. It is also said that appellant no.3 has exercised right of private defence and as such he is also entitled to acquittal. Appellant nos. 1 and 2 have not caused any injuries to any one. 9. Reference to the medical evidence would be useful in as much as we will be in a better position to appreciate the oral evidence about the incident. Dr. (Mrs.) Kanade examined at Exh.45 examined Pw2-Sk.Nawab and pw3-Sk.Pashu on 26.3.2005. Sk.Nawab had 2 injuries, (1) stab injury on left para-umbilical region having size of 2x1x3 peritoneum deep. Injury was grievous in nature caused within 24 hours, by hard and sharp object, and (2) C.L.W. on right forearm having size of 3x2x1. It was simple injury caused within 24 hours with hard and sharp object. The doctor said that both injuries were possible with knife. He proved the medical certificate Exh.46. Pw3-Pashu had one C.L.W. on left gluetal region having size of 3x4x2. The injury was simple injury caused within 24 hours with hard and blunt object. The medical certificate is proved at Exh.47. She stated that the injury was possible by blunt side of the knife. In cross-examination, the doctor admitted that both injuries to Sk.Nawab were not possible with same weapon. She also stated that there was corresponding fracture to injury no.2. She did not find any wedge shape injury which is caused with the weapon having its one side sharp and other blunt. Injury to Sk.Pashu was possible by fall on back on any hard and blunt object. She also stated that there was corresponding fracture to injury no.2. She did not find any wedge shape injury which is caused with the weapon having its one side sharp and other blunt. Injury to Sk.Pashu was possible by fall on back on any hard and blunt object. The width of the weapon with which Sk.Pashu was injured might be 4 c.ms. 10. Dr.Raju Surwase Kanade (pw10) performed postmortem on both deceased persons. The postmortem was performed on the dead body of Sk.Asad between 8.30 a.m. to 9.30 a.m. on 27.3.2005 and following 2 injuries were found. " (i) Stab injury on right hypochondrial region of size 4 x 2 cms. x muscle deep, which was elliptical in shape. Upper end directing upwards and laterally, lower end directing downwards an medially. Upper end was clean-cut and acute as compared to lower end. This injury was 10 cms. from mid line of the body and 15 cms. from right nipple. (ii) Stab injury of size 3.5 cms. x 1 cms. x cavity deep over right side of chest below and medial to right nipple. The upper end was directing towards nipple and lower end medially. This injury was irregular in shape.It was 7 cms. from mid line and 7.5 cms. from right nipple. The edges of above two injuries were clean cut and reddish in colour. " On internal examination, it was found that there was hemorrhages in the thorax wall in relation to external injury nos. (i) and (ii). There was injury to the lower lobe of right lung of size 3 x 2 cms. 1200 cc fluid blood was found in right thoracic cavity. The cause of death was shock due to stab injury. The postmortem notes are proved at Exh.49. The same doctor also performed postmortem on the dead body of Sk.Hussain on same day between 9.40 a.m. to 10.40 a.m. One stab injury of size 4 x 2 cms. x cavity deep of elliptical size over right lumber region was found. The edges were clean cut and reddish in colour. On internal examination it was found that there was tear of peritoneum and abdominal cavity contained 2.5 litre fluid blood with clots. The cause of death was haemorrhagic shock due to the stab injury. The postmortem notes are proved at Exh.50. The doctor stated that injuries were possible with knife. The edges were clean cut and reddish in colour. On internal examination it was found that there was tear of peritoneum and abdominal cavity contained 2.5 litre fluid blood with clots. The cause of death was haemorrhagic shock due to the stab injury. The postmortem notes are proved at Exh.50. The doctor stated that injuries were possible with knife. Injuries to both were sufficient in the ordinary course of nature to cause death. 11. Dr.Harbade examined at Exh.55 had examined Sk.Nawab on 26.3.2005 in Surgery Ward. He was Casualty Medical Officer. The doctor said that there was stab wound on left hypochondrium and on right forearm. Injury was penetrating to peritoneum. There was bleeding. During operation it was found that there was spleenic injury and perforation of greature curvature of stomach. Spleenic injury was not repairable and, therefore, spleenatectomy was performed. Stitches were given to the stomach perforation. 12. Dr.Suchitra Rathod (DW1) examined at Exh.114 examined juvenile offender Kadir on 27.3.2005 at 1.45 p.m. and he had following injuries. " (i) Contused lacerated wound left right finger having 4x1x0.5 cms. Reddish in colour. (ii) Contused to left arm 2x1 cms. Reddish in colour." Both injuries were caused within 24 hours with hard and blunt object. The injuries were simple in nature. Though the patient was referred to Surgery and Orthopaedic Department, there was no record of any treatment by said Department. Dr. Rathod also stated that on same day he examined accused no.3-Mannan at 1.45 p.m. and he had following injuries. " (i) Abrasion on left thigh 2x2 cms. Reddish in colour. (ii) C.L.W. left temporo occipital region 1xz0.5 cms. Reddish. (iii) Abrasion on left thumb,linear,reddish in colour. " The injuries were caused within 24 hours with hard and blunt object. Patient was referred to Surgery Department, but there were no papers of treatment by that Department. The doctor proved injury certificates at Exhs. 115 and 116. In the cross-examination the doctor stated that if there had been indoor treatment in the Surgery Department, there would have been medical papers preserved. So there must not be further treatment. Moreover, injuries are simple and even head injury to accused no.3-Mannan had no depth. The injuries were caused within 24 hours. In the cross-examination the doctor also admitted that injury to Kadir may be possible by forcible fall and injury nos. 1 and 3 to Mannan were possible by fall on stone. So there must not be further treatment. Moreover, injuries are simple and even head injury to accused no.3-Mannan had no depth. The injuries were caused within 24 hours. In the cross-examination the doctor also admitted that injury to Kadir may be possible by forcible fall and injury nos. 1 and 3 to Mannan were possible by fall on stone. 13. Prosecution examined in all 5 eye witnesses. All of them stated that demand was made of Rs.1,500/- which was owed by Abdul Khaled to pw5-Sk.Shamsu since accused no.1-Budhan had stood surety for the amount. Since amount was not paid on Friday as agreed, demand was made on Saturday and being aggrieved thereby accused no.1 abused Sk.Nawab and others and thereafter all the accused inflicted blows. 14. Here evidence of pw5-Sk.Shamsu at Exh.27 needs consideration. It is brought in the cross-examination of Sk.Shamsu that he had stated portion marked ’F’ before police. Portion marked ’F’ is to the effect that deceased Asad and pw2-Nawab had asked accused no.1-Budhan Qureshi to bring the amount of Rs.1,500/- from Abdul Khaled. It was Saturday. There was exchange of words when amount was demanded by deceased Asad and pw2-Nawab. Thereafter accused no.1 had brought Rs.1,500/- from his nephew and paid to him on the evening of Saturday.Though Sk.Shamsu denied this, his statement marked Exh.’F’ is duly proved through A.P.I.Bahure examined at Exh.72. The contradiction is proved at Exh.111. Sk.Shamsu was also confronted with portions marked ’A’ to ’E’ from his statement dated 28.3.2005. Those portions are to the effect that after demand of Rs.1,500/- by accused no.1-Budhan, Budhan had abused pw2-Sk.Nawab. Sk.Nawab told this fact to pw5-Sk.Shamsu, deceased Sk.Hussain, deceased Sk.Asad and pw3-Sk.Pashu. Thereafter both deceased persons, pw2-Sk.Nawab and pw3-Sk.Pashu went to question accused no.1-Budhan Qureshi regarding giving abuses. On learning this, pw5-Sk.Shamsu also went there. At that time, accused no.3-Mannan had given blow on the abdomen of Sk.Asad and accused no.2-Chhotibi gave blow from behind near thigh and Sk.Asad fell down. It is further stated that it was accused no.3-Mannan Qureshi who had given blows on the hand and chest of Sk.Nawab. Accused no.1-Budhan and juvenile offender Kadir had injured Sk.Hussain and Sk.Pashu with guptis on abdomen. Though Sk.Shamsu denied these portions marked ’A’ to ’E’, they are duly proved through A.P.I.Bahure and those portions are given Exhibits 106 t0 110. 15. Accused no.1-Budhan and juvenile offender Kadir had injured Sk.Hussain and Sk.Pashu with guptis on abdomen. Though Sk.Shamsu denied these portions marked ’A’ to ’E’, they are duly proved through A.P.I.Bahure and those portions are given Exhibits 106 t0 110. 15. According to the testimony of Sk.Shamsu at Exh.27 after pw2-Sk.Nawab told him that accused no.1-Budhan had given abuses on demanding money, he accompanied Sk.Nawab towards office of Grampanchayat for meeting accused no.1-Budhan. Accused no.1-Budhan met them near Grampanchayt office. Scuffle took place between accused no.1 and deceased Asad. At that time accused nos. 2 and 3 and juvenile offender Kadir came running with knives in their hands. Accused no.3-Mannan inflicted blows with knife on the hand and stomach of Sk.Nawab. Accused no.1-Budhan and accused no.2-Chhotibi gave blows on the stomach of Sk.Asad. Accused no.1-Budhan and accused no.2-Chhotibi also inflicted knife blows on the abdomen of Sk.Hussain. Juvenile offender Kadir inflicted blows on the abdomen of pw3-Sk.Pashu. Thereafter accused ran away. 16. It is pointed out to us that as per the ocular evidence both accused nos. 1 and 2 have inflicted one blow each on both deceased Sk.Asad and Sk.Hussain, still as per medical evidence of Dr.Surwase Kanade on the dead body of Sk.Hussain there was only one injury at lumber region. So statement of witness Sk.Shamsu that both accused nos. 1 and 2 have inflicted blows on Sk.Hussain cannot be believed. Secondly omission is brought in the cross-examination of all eye-witnesses that they had not stated before police that accused nos. 1 and 2 had inflicted knife blow on Sk.Asad. So it is argued that eye-witnesses have not deposed truth regarding actual participation and acts of accused nos. 1 and 2. It is argued that very fact that Sk.Hussain had only one stab injury clearly shows that said injury must not have been caused by both appellant nos. 1 and 2. It could have been caused by either of the two or by some third person. 17. Before we draw any further conclusion, we may refer to the evidence of other witnesses. Pw4-Ramchand is said to be an independent witness. He also deals in trade of bullocks like other prosecution witnesses and accused no.1. He stated that as agreed Abdul Khaled had not paid remaining amount of Rs.1,500/- to pw5-Sk.Shamsu and on Saturday pw2-Sk.Nawab went to accused no.1-Budhan for demanding amount. Pw4-Ramchand is said to be an independent witness. He also deals in trade of bullocks like other prosecution witnesses and accused no.1. He stated that as agreed Abdul Khaled had not paid remaining amount of Rs.1,500/- to pw5-Sk.Shamsu and on Saturday pw2-Sk.Nawab went to accused no.1-Budhan for demanding amount. Accused no.1 did not pay amount, but abused Sk.Nawab and, therefore, Sk.Nawab came to him and told him about abuses given to him by accused no.1-Budhan. Thereafter pw4-Ramchand, deceased Sk.Asad, deceased Sk.Hussain, pw2-Sk.Nawab and pw3-Sk.Pashu went to accused no.1-Budhan for asking him why he was abusing. Accused no.1 met them in the near Grampanchayat office. These persons asked accused no.1 why he was giving abuses and demanded the amount, and at that time quarrel took place between accused no.1-Budhan, pw2-Sk.Nawab and others. Pw2-Sk.Nawab caught hold of accused no.1. In the mean time accused nos. 2 and 3 and juvenile offender Kadir came running. They were armed with knives. This witness also said that accused nos. 1 and 2 assaulted Sk.Asad on the right side of stomach. Accused no.1-Budhan inflicted knife blow on the hand and stomach of pw2-Nawab. Accused nos. 1 and 2 inflicted knife blows on the stomach of deceased Sk.Hussain and juvenile offender Kadir inflicted knife blow on stomach of pw3-Sk.Pashu. In cross-examination the witness was confronted with his statement before police. It was asked whether the witness had stated before police that on Saturday deceased Sk.Anwar, pw2-Sk.Nawab both demanded Rs.1,500/- to accused no.1 and accused no.1 went to the house of his sister’s son and brought Rs.1,500/- and paid to pw5-Sk.Shamsu and thereafter accused gave abuses to Sk.Nawab. Witness did not answer this question and kept mum for about 15 minutes and then he said that he could not assign any reason why police recorded portion marked ’A’ in his name. Then he stated that pw5-Sk.Shamsu did not tell him in the hospital that Sk.Budhan had paid him Rs.1,500/- nor this fact was told to him thereafter. The contradiction contained in portion ’A’ is duly proved. Omissions were brought on record that witness has not stated before police that it was accused no.2-Chhotibi who inflicted knife blow on the person of deceased Sk.Hussain and deceased Sk.Asad. He did not state before police that accused no.1-Budhan had inflicted knife blow on Sk.Asad. 18. Pw1-Sk.Rafiq examined at Exh.19 is the complainant. Omissions were brought on record that witness has not stated before police that it was accused no.2-Chhotibi who inflicted knife blow on the person of deceased Sk.Hussain and deceased Sk.Asad. He did not state before police that accused no.1-Budhan had inflicted knife blow on Sk.Asad. 18. Pw1-Sk.Rafiq examined at Exh.19 is the complainant. He stated that at 8.30 p.m. on the day of incident he went to mosque for Namaj and when he came out after prayers, he heard noise and saw the gathering of people. So he went to the Grampanchayat office where people had gathered. At that time accused nos. 1 and 2 were inflicting blows with knives on Sk.Asad. Sk.Asad had fallen down. Sk. Asad had sustained injuries on his chest and stomach. Thereafter accused started causing injuries to Sk.Nawab, Sk.Pashu and Sk.Hussain. Accused no.3-Mannan inflicted stab blow to pw2-Sk.Nawab with knife on hand and stomach. Accused no.2-Chhotibi gave knife blow on the stomach on Sk.Hussain on the right side of the stomach. Accused no. 1 inflicted blow with knife on the right side of stomach of pw3-Sk.Pashu. Thereafter Sk.Pashu, Sk.Nawab, Sk.Asad and Sk.Hussain fell down. Accused ran away. Injured were taken to hospital. So this witness does not say that along with injured and deceased he went to the house of accused no.1-Budhan to question him for abusing Sk.Nawab and Sk.Asad. Witness Sk.Rafiq is cousin of deceased Sk.Asad. In cross-examination contradiction was brought that according to statement of this witness before police it was accused no.3-Mannan who had assaulted Sk.Asad and while Sk.Asad was falling down pw1-Rafiq caught hold of him. Witness denied that he stated before police while lodging complaint that he had caught hold of Sk.Asad after blow was given to him. In complaint Exh.20 it is clearly stated that witness Sk.Rafiq had seen accused no.3-Mannan giving blow with knife to his cousin Sk.Asad on the stomach and Sk.Asad fell down. This witness has also stated that the accused and juvenile offender were holding weapons like knives and gupti. He said about use of knives and guptis as weapons at 2 places in his complaint Ex.20. As per complaint after Namaj pw2-Sk.Nawab, deceased Sk.Asad, deceased Sk.Hussain, pw3-Sk.Pashu had gone to accused no.1-Budhan to question him for abusing. Witness Sk.Rafiq also admitted that at Kadrabad which is a village there is load shedding of electricity from 6.00 p.m. to 11.00 to 12.00 p.m. 19. As per complaint after Namaj pw2-Sk.Nawab, deceased Sk.Asad, deceased Sk.Hussain, pw3-Sk.Pashu had gone to accused no.1-Budhan to question him for abusing. Witness Sk.Rafiq also admitted that at Kadrabad which is a village there is load shedding of electricity from 6.00 p.m. to 11.00 to 12.00 p.m. 19. Pw2-Sk.Nawab examined at Exh.23 stated that Abdul Khaled had purchased bullock from pw5-Sk.Shamsu. Rs.2,600/- were paid and remaining amount of Rs.1,500/- was to be paid on Friday. The appellant no.1-Budhan had remained surety for the payment by Abdul Khaled. Abdul Khaled did not pay amount and, therefore, on next day he went to the house of accused no.1, but accused no.1 abused him. He told this to pw5-Sk.Shamsu and thereafter he, his brother, Sk.Shamsu, Sk.Asad went to accused no.1-Budhan and asked him why he was abusing. Accused no.1 had met them near the office of Grampanchayat. At that time accused no.1-Budhan and accused no.2-Chhotibi inflicted blows of knives on the chest of deceased Sk.Asad. Accused no.3-Mannan gave blow on his wrist and elbow and also belly. He sustained bleeding injuries. Thereafter accused nos. 1 and 2 also inflicted blows with knives on Sk.Hussain. Pw3-Sk.Pashu came running, but juvenile offender inflicted knife blow to Sk.Pashu and thereafter they were taken to the hospital. He was hospitalised for 24-25 days. He stated that after reaching hospital, he became unconscious and regained consciousness on 2.4.2005. In the cross-examination, omission was brought on record that accused no.1 met them near Grampanchayat office or that he tried to pacify accused no.1, but he rushed on his person. Omission was brought on record that witness has not stated before police that it was accused no.1 who inflicted blow with knife on Sk.Asad. He denied defence suggestion that he had knife and wanted to inflict blow to accused no.3-Mannan and Mannan gave fist blow to his shoulder; the knife fell down and Mannan lifted that knife. It was suggested to him that after he sustained injury on the belly he fell down in the drainage, but he admitted that his blood was in the drain. So it is argued that possibly after one blow, the second injury on the hand might have been caused because of the fall in the drain. The house of pw2-Sk.Nawab was just in front of the spot of the incident. So it is argued that possibly after one blow, the second injury on the hand might have been caused because of the fall in the drain. The house of pw2-Sk.Nawab was just in front of the spot of the incident. Witness denied that the incident took place in front of the house of accused, but he admitted that office of Grampanchayat is at 100 feet from the house of accused no.1. It appears that it is a small village where the houses are near each other. 20. Pw3-Sk.Pashu is another witness who was injured. According to him, on 26.3.2005 Sk.Nawab and Sk.Asad had gone to demand money to accused no.1-Budhan which Abdul Khaled owed to pw5-Sk.Shamsu and at that time accused no.1 gave abuses to pw2-Sk.Nawab. Thereafter Sk.Pashu, deceased Sk.Asad, deceased Sk.Hussain and pw2-Sk.Nawab went to question accused no.1-Budhan for abusing. Accused no.1-Budhan met them near the office of Grampanchayat and, thereafter, accused nos.1 to 3 and juvenile offender Kadir came with knives. Accused nos. 1 an d 2 inflicted blows on the chest and stomach of Sk.Asad. Pw2-Sk.Nawab tried to save Sk.Asad, but accused no.3-Mannan inflicted blow with knife. Accused nos. 1 and 2 also inflicted knife blows on Sk.Hussain. Juvenile offender Kadir inflicted blow on the stomach. He became unconscious and was admitted in the Government Medical College and Hospital. He was there for 10 to 12 days. This witness has a grocery shop nearby the place of incident. He stated that it was open from 9.00 p.m. to 10.00 p.m. He heard noise of quarrel and went to the spot. It was suggested to him that incident took place at 25 feet from his shop. He denied that he went to the house of Sk.Asad. In cross-examination omission was brought on record that he did not state that accused no.1-Budhan met them near office of Grampanchayat. He did not state before police that accused no.1 came near Grampanchayat office holding knife. He did not state that accused nos. 1 and 2 inflicted blows on Sk.Asad. 21. If we consider the totality of the circumstances, it is clear that none of the witnesses have stated before police that it was accused nos. 1 and 2 who inflicted blows on deceased Sk.Asad. It was in fact the case before police that it was accused no.3-Mannan who inflicted blow to Sk.Asad. Moreover,it is said that both accused nos. 21. If we consider the totality of the circumstances, it is clear that none of the witnesses have stated before police that it was accused nos. 1 and 2 who inflicted blows on deceased Sk.Asad. It was in fact the case before police that it was accused no.3-Mannan who inflicted blow to Sk.Asad. Moreover,it is said that both accused nos. 1 and 2 have inflicted blows on Sk.Hussain, but Sk.Hussain had only one injury and, therefore, both accused nos.1 and 2 could not have inflicted said blow. 22. Accused no.3-Mannan examined himself as a witness at Exh. 117. He stated stated in his examination-in-chief as stated in para 5 above. He was subjected to cross-examination. According to accused no.3-Mannan amount of Rs.1,500/- was paid on he evening of Saturday by accused no.1 to pw5-Sk.Shamsu, but accused no.1 was unhappy for he being compelled to pay the amount and, therefore, he was abusing Abdul Khaled. Accused no.3-Mannan also admitted that pw2-Sk.Nawab felt that accused no.1 was giving him abuses and, therefore, pw2-Sk.Nawab went to question accused no.1 and then people gathered and took Sk.Nawab to his house. It is admitted that thereafter both deceased pw2-Sk.Nawab, pw3-Sk.Pashu and others came. It is stated that they started beating accused no.1-Budhan and accused no.2-Chhotibi for abusing Sk.Nawab. Accused nos. 1 and 2 started raising hue and cry, but nobody came to their rescue and, therefore, accused no.3-Mannan and juvenile offender Kadir intervened. Deceased Sk.Hussain had caught hold of hair of his mother. Accused no.3-Mannan rescued his parents, took them in the house and latched the door from outside. It is said that pw3-Pashu and others started beating him and Kadir. He had sustained bleeding injury on his head. Blood was oozing. He fell down. Thereafter Yusuf had inflicted injury with sharp weapon on his left thigh. He sustained injury on thumb of left hand. Pw2-Sk.Nawab came with knife. DW2-Mannan gave fist blow on the right shoulder of Sk.Nawab and the knife fell down. DW2-Mannan took the knife before Sk.Nawab could attempt to pick it up and he inflicted blow with the knife on the stomach to Sk.Nawab. According to this witness, somebody was trying to assault with sharp weapon. He inflicted blows on assailants. There was darkness at that time. Therefore, he along with juvenile offender Kadir went to Pimpri Raja. One thing is clear that there was no darkness. According to this witness, somebody was trying to assault with sharp weapon. He inflicted blows on assailants. There was darkness at that time. Therefore, he along with juvenile offender Kadir went to Pimpri Raja. One thing is clear that there was no darkness. Witnesses and accused persons were able to see what is going on and could give details of acts of each other. 23. If we consider the statement of appellant no.3-Mannan with injuries described by Dr. Suchitra Rathod (DW1) examined at Exh.114, it is clear that accused no.3-Mannan had abrasion on left thigh of 2x2 cm., C.L.W. of 1x0.5 cm. on head and abrasion on left thumb. So his say that he was given blow with sharp pointed weapon on left thigh or thumb does not appear to be true. All the injuries were simple injuries. They were superficial injuries. It appears that since for abusing, accused nos. 1 and 2 were being assaulted by both deceased and pw2-Sk.Nawab and pw3-Sk.Pashu, this young lad of 20 years was enraged and he must have inflicted blows with knife . No other evidence shows that any of the prosecution witnesses or deceased had any weapon. It is said that one Dagdu Anwarshah came and told accused no.1 that pw2-Sk.Nawab, pw3-Sk.Pashu and others were going to attack them and, therefore, accused nos. 1 and 2 were about to go to police station on the motor cycle when both deceased and both injured came. Dagdu Anwarshah is not examined. Possibility of both injured and both deceased going to question accused no.1 for abusing them, cannot be ruled out. That is consistent with the prosecution evidence. 24. The evidence of DW2-Mannan clearly shows that injuries to pw2-Sk.Nawab, pw3-Sk.Pashu, deceased Sk.Hussain and deceased Sk.Asad were caused by him and juvenile offender Kadir. It appears to be true because it has come in evidence that as per the statements before police of some witnesses that it was accused no.3-Mannan who had caused injuries to Sk.Asad. Prosecution witnesses are also telling lies that both accused no.1 and 2 gave knife blows on deceased Sk.Hussain on whose person the doctor found only one injury. So in the circumstances of the case, we are not inclined to believe the say of prosecution witnesses that both accused nos. 1 and 2 had inflicted knife injuries to deceased Sk.Asad and deceased Sk.Hussain. So in the circumstances of the case, we are not inclined to believe the say of prosecution witnesses that both accused nos. 1 and 2 had inflicted knife injuries to deceased Sk.Asad and deceased Sk.Hussain. We are inclined to give benefit of doubt to accused nos. 1 and 2 in view of omissions proved in the evidence of prosecution witnesses that they did not state before police that accused nos. 1 and 2 had assaulted Sk.Asad and considerin g that only one injury was on Sk.Hussain, both accused nos. 1 and 2 could not have inflicted it. 25. If we consider the totality of the defence evidence that accused no.3-Mannan and juvenile offender Kadir had caused injuries for protecting accused nos. 1 and 2 from assault by Pw2-Sk.Nawab, pw3-Sk.Pashu, deceased Sk.Hussain and deceased Sk.Asad appears probable. The evidence of DW2-Mannan makes it very clear that his parents were beaten and Sk.Hussain had caught hold of hair of his mother. Accused nos. 1 and 2 have not received any injury. If really there were weapons like knife in the hands of prosecution side, there would be some injury on accused nos. 1 and 2. So we hold that pw2-Sk.Nawab, pw3-Sk.Pashu, deceased Sk.Hussain and deceased Sk.-Asad were not armed with any weapon. However, for abusing they must have caught hold of accused no.1 or might have beaten him with hands. It is obvious that accused no.2-Chhotibi would intervene to save her husband. So it is possible that deceased Sk.Hussain might have caught hold of her hair. Being enraged by beating to accused nos. 1 and 2, accused no.3-Mannan and juvenile offender Kadir appear to have caused injuries. In our opinion, accused no.3-Mannan has clearly exceeded right of private defence. We are not satisfied that there was any threat or danger of causing of grievous hurt or danger to life of any of the appellants or juvenile offender Kadir. So case of present appellant no.3-Mannan falls under Exception 2 of Section 300 of the Indian Penal Code and offence which he committed would be one punishable under Section 304-I of the Indian Penal Code so far as deceased Sk.Hussain and deceased Sk.Asad are concerned and it would be offence under Section 308 of the Indian Penal Code so far as injury to pw2-Sk.Nawab is concerned. We may state that as per charge Exh.4, only accused nos. We may state that as per charge Exh.4, only accused nos. 1 and 2 are charged of causing murder of Sk.Hussain and Sk.Asad in furtherance of their common intention. Accused no.3-Mannan is not charged under Sections 302 r/w 34 of the Indian Penal Code. He is only charged under Sections 307 r/w 34 of the Indian Penal Code. Charge is that accused no.3-Mannan and juvenile offender Kadir caused injuries to Sk.Nawab in furtherance of their common intention and thus accused no.3-Mannan committed offence under Sections 307 r/w 34 of the Indian Penal Code. 26. In our opinion, it cannot be believed that accused nos. 1 and 2 have taken part in the incident and have inflicted the knife injuries to any of the persons. So they are entitled to acquittal of offence under Sections 302 r/w 34 of the Indian Penal Code. So we are inclined to allow the appeal to the extent of appellant nos. 1 and 2. So far as appellant no.3-Mannan is concerned, there is no appeal by the State. There is no charge against appellant no.3-Mannan for committing offence under Sections 302 r/w 34 of the Indian Penal Code. So appellant no.3 cannot be convicted under Section 304 of the Indian Penal Code. The conviction of appellant no.3 for offence under Section 307 of the Indian Penal Code will have to be altered to conviction for offence punishable under Section 308 of the Indian Penal Code. Since there is no appeal against acquittal and since there is no charge against accused no.3-Mannan under Section 302 of the Indian Penal Code, we cannot convict appellant no.3-Mannan of offence under Sections 302 or 304 of the Indian Penal Code for causing deaths of Sk.Hussain and Sk.Asad. In view of fact that appellant no.3-Mannan has caused death of Sk.Hussain and Sk.Asad we are not inclined to further reduce the sentence of appellant no.3-Mannan. Appellant no.3-Mannan has caused injury to pw2-Sk.Nawab and under Section 308 of the Indian Penal Code he can be sentenced to suffer imprisonment of either description for a term which may extend to 7 years and, therefore, we are inclined to modify his conviction from Section 307 of the Indian Penal Code to Section 308 of the Indian Penal Code, but maintain the sentence. 27. In the result, the appeal is partly allowed. 27. In the result, the appeal is partly allowed. Appellant no.1-Budhan and appellant no.2-Chhotibi are acquitted of the offence punishable under Sections 302 r/w 34 of the Indian Penal Code. The order of conviction and sentence passed against accused nos. 1 and 2 by the Trial Court is hereby quashed and set aside. Accused no.3-Mannan, instead of his conviction under Section 307 of the Indian Penal Code, is convicted under Section 308 of the Indian Penal Code and he is sentenced to rigorous imprisonment for 7 years and to pay fine of Rs.1,000/- in default to undergo rigorous imprisonment for 3 months. Appellant/accused nos. 1 and 2, if not required in any other case, may be set at liberty forthwith. Fine if paid by appellant nos.1 and 2 be refunded to them. Appeal partly allowed.