JUDGMENT 1. - D.B. Criminal Jail Appeal No.396/82 has been sent to this Court by accused victims Sheo Pal and Mahaveer through jail authorities to challenge the judgment and order of conviction and sentence dated 9.9.1982 passed by the court of Addl. Sessions Judge, Nagaur camp Didwana in Sessions Case No.13/82, by which the appellant Sheo Pal has been convicted under Section 302/34 and 323, IPC and has been sentenced to undergo life imprisonment under Section 302/34, IPC and a fine of Rs.100/- has been imposed and under Section 323, IPC, appellant Sheo Pal has been sentenced to one year's rigorous imprisonment. Appellant Mahaveer has been convicted under Section 302/34, IPC and has been sentenced to undergo life imprisonment and a fine of Rs.100/- has been imposed upon him. One more accused Smt. Prem who is wife of appellant Sheo Pal has been convicted by the same judgment for offence under Section 302, IPC and she has been sentenced to undergo life imprisonment with fine of Rs.100/-. Appellants Smt. Prem and above two appellants Sheo Pal and Mahaveer jointly preferred D.B.Criminal Appeal No.367/1982 through their counsel to challenge the same judgment and order of conviction and sentence referred above. 2. Brief facts of the case are that on 17.2.1982 in mid-night at quarter to two, Trilok Chand submitted a written report to the SHO, Police Station, Baradwa (Ex.P.7) and informed the police that on 16.2.1982, he returned to his village Kayamsar at 6 p.m. after distributing the Dak and at that time, his uncle Sheo Pal, his aunty Smt. Prem and uncle's daughter Santosh and uncle's son-in-law Mahaveer were sitting in their house and were talking. He, the complainant, his father and his father's uncle Rughaji and Rughaji's son Sanwar Mal were sitting in complainant's house. The complainant's father Bhanwar Lal, who was residing at village Losal but he came to meet complainant on that day only. Seeing complainant's father Bhanwar Lal in the chowk of complainant, accused Sheo Pal, Mahaveer, Santosh and Smt. Prem w/o Sheo Pal attacked upon his father Bhanwar Lal. Smt. Prem has kulhari in her hand and Sheo Pal, Mahaveer and Santosh had lathis with them. Because of several injuries by kulhari on the head of Bhanwar Lal, he fell down. The complainant himself tried to save his father then complainant's uncle accused Sheo Pal gave beating to complainant also. Smt. Prem has kulhari in her hand and Sheo Pal, Mahaveer and Santosh had lathis with them. Because of several injuries by kulhari on the head of Bhanwar Lal, he fell down. The complainant himself tried to save his father then complainant's uncle accused Sheo Pal gave beating to complainant also. In the effort of saving the father of the complainant from the hands of the accusedappellants, he hit accused with lathi because of which the accused suffered one or two injuries. However, all the accused believing that Bhanwar Lal has died, ran from the spot. The complainant took the victim Bhanwar Lal to village Losal by bus but they were advised to take the victim Bhanwar Lal to bigger hospital at Sikar, upon which from one Madan Lal, a vehicle was got arranged but during this period, the victim Bhanwar Lal died. The complainant stated that Bhanwar Lal and Sheo Pal had dispute with respect to one open land and, therefore, because of this enmity, accused killed victim Bhanwar Lal. On the basis of above report (Ex. P.7), a case under Section 302, 120B and 34, IPC was registered after recording formal FIR No.6/82 (Ex. P.10). 3. During investigation, site was inspected and site map (Ex. P.15) and site report (Ex. P.5) were prepared. The sample soil and blood stained soil were seized and their memos were prepared. The seizure memo for the dead-body of deceased Bhanwar Lal (Ex.P.2) was prepared. The injured complainant Trilok Chand's blood stained shirt was also seized and seizure memo Ex. P.3 was prepared. Accused Smt. Prem, Sheo Pal and Mahaveer were arrested and their arrest memos Ex. P.6, Ex. P.11 and Ex. P.12 were prepared. Accused Mahaveer gave information under Section 27, Evidence Act (Ex. P.12), in pursuance of which lathis were recovered and recovery memo Ex. P.13 was prepared. Accused Smt. Prem gave information under Section 27, Evidence Act vide Ex.P.16, in pursuance of which weapon of offence Kulhari was recovered and recovery memo Ex.P.14 was prepared. The post-mortem was conducted by Dr. Ram Singh (PW-5) and the post-mortem report Ex.P.4 was prepared. There were total nine injuries on the body of deceased Bhanwar Lal which includes four incised wounds, one lacerated wound, two bruises and two abrasions. The post-mortem was conducted by Dr. Ram Singh (PW-5) and the post-mortem report Ex.P.4 was prepared. There were total nine injuries on the body of deceased Bhanwar Lal which includes four incised wounds, one lacerated wound, two bruises and two abrasions. As per the medical opinion, the injuries no.1,2 and 3 alone as well as because of their cumulative effect, were sufficient to cause the death of the victim. The victim Trilok Chand was examined by Dr.Amrit Lal (PW-9) and found four injuries on the body of the injured complainant Trilok Chand. 4. After framing the charge against the accused persons for offences referred above, during trial, 15 witnesses were examined by the prosecution and relevant documents were exhibited. 5. The statements of accused were recorded under Section 313, Cr.P.C. Accused-appellant Sheo Pal stated that Rugha Das, Sanwar Mal and his brother Bhanwar Lal were fighting. He (Sheo Pal ) was called by his sister, upon which he went to separate them. Bhanwar Lal was beaten by Rugha Das and Sanwar Mal and only he went there to separate them where he (Sheo Pal) was also beaten. They were fighting for share in Gawadi(open plot). Accused-appellant Mahaveer gave his statement under Section 313, Cr.P.C and denied taking part in the above fight and stated that he did not beat(any body). He went(come) to take her sister. He also stated that he also went with Sheo Pal for reporting the matter to the police. Smt. Prem in her statement under Section 313, Cr.P.C. denied all the allegations. In defence, the accused produced witness DW-1 Smt. Saraswati, the elder lady of common family of accused and the victim as well as witness DW-2 Lichhama, sister of appellant Sheo Pal. 6. The trial court convicted all the three accused appellants; Smt. Prem under Section 302, IPC whereas Sheo Pal and Mahaveer have been convicted under Section 302 read with Section 34, IPC. Sheo Pal has been convicted for offence under Section 323, IPC in addition to charge for offence under Section 302/34, IPC. Hence these appeals have been preferred by the appellants. 7. The learned counsel for the appellants vehemently submitted that Ex. P.7 is a fabricated document and has been brought into existence long after the occurrence of the incident and in fact Ex. Hence these appeals have been preferred by the appellants. 7. The learned counsel for the appellants vehemently submitted that Ex. P.7 is a fabricated document and has been brought into existence long after the occurrence of the incident and in fact Ex. P.7 cannot be said to be the FIR because of the reason that the prosecution witnesses proved that Ex. P.7 is the last report in the series of various reports which were written at different times as well as at different places. According to PW-2 Sanwar Mal, alleged eye-witness, PW-8 Madan Lal went to report the incident to the police. PW- 8 Madan Lal in his statement stated that to lodge report, he went with Trilok Chand at Police Station Baradwa and stated that the report was written at bus stand of Losal. PW-2 Sanwar Mal in his statement, stated that the report was written at hospital in his presence and he stated that Trilok Chand wrote only 2-3 letters in the report and who wrote rest of the report, he has no knowledge. The complainant in his statement, admitted that he was not literate and, therefore, he orally stated the report to the SHO who went on writing the report as he dictated. Trilok Chand contradicted prosecution's other witness by saying that it is wrong to say that the report was written at Losal village. He also stated that he did not get the report written on way to the police station. Thereafter, he contradicted his statement by saying that at that time the SHO was not present in the police station. He was on leave and the report was written by Munshi. According to the learned counsel for the appellants, therefore, Ex. P.7 is a concocted document and the prosecution deliberately suppressed the true facts. The report Ex. P.7 is concocted, is further proved from the statement of the investigating officer PW-11 Ratan Lal who contradicted the statement of complainant Trilok Chand by saying that Trilok Chand brought the written report in the police station from out side and the report was not written in the police station. 8. The report Ex. P.7 is concocted, is further proved from the statement of the investigating officer PW-11 Ratan Lal who contradicted the statement of complainant Trilok Chand by saying that Trilok Chand brought the written report in the police station from out side and the report was not written in the police station. 8. The learned counsel for the appellants vehemently submitted that the conduct of the complainant clearly shows that the time was taken for obtaining the opinion before lodging the FIR and all false pleas of moving here and there, to Losal and coming back from there, before lodging FIR, have been taken by the complainant and his witnesses cover up the delay in lodging the FIR. The learned counsel for the appellants submitted that the incident occurred in the village Kayamsar. Bhanwar Lal injured at village Kayamsar, then the report could have been lodged at the Police Station, Bardwa, whereas instead of giving report forthwith to the Police Station, Baradwa, the complainant says that they went to the village Losal which is far away from the Police Station, Baradwa and, thereafter, after the death of Bhanwar Lal, instead of giving report at Losal they again came back to the Police Station, Baradwa. This all has been stated only to explain the delay in lodging the FIR, which in fact was caused due to the reason that the complainant consulted to concoct the story before lodging the FIR. 9. In view of the above reasons, the learned counsel for the appellants submitted that Hon'ble the Supreme Court in the case of Marudanal Augusti v. State of Kerala, 1980 SCC (Cri) 985 held that on finding that the FIR is document fabricated document and was got into existence long after occurrence then the entire prosecution case collapses. 10. The learned counsel for the appellants further vehemently submitted that Trilok Chand (PW-7) is not a reliable witness. He in his cross-examination, stated that the accused inflicted injury upon him from the edge side of Kulhari thrice but because of his clothes, the Kulhari slipped and, therefore, no blood came out from his body by the said three blows from Kulhari over him. This statement of the witness Trilok Chand clearly exposes him and from this statement, it is clear that he can give false statement to any extent. This statement of the witness Trilok Chand clearly exposes him and from this statement, it is clear that he can give false statement to any extent. In cross-examination, he stated that he covered his father and, therefore, his father deceased did not suffer any injury from lathi. Contrary to it, as per medical evidence produced by the prosecution, Trilok Chand's father Bhanwar Lal had injuries by blunt weapon. Therefore, also the prosecution witness PW-7 Trilok Chand cannot be relied upon, as he fabricated the FIR and gave false statement in the court. 11. The learned counsel for the appellants vehemently submitted that the real cause for the dispute has been suppressed by the prosecution and almost all alleged eyewitnesses produced by the prosecution, admitted that the incident occurred just near the kitchen of the accused and it is proved from site report also but the prosecution did not disclose why the victim Bhanwar Lal went to the place of accused. The dispute was between Rugha Das and Bhanwar Lal. Rugha Das and Sanwar Mal both have become prosecution witnesses PW-1 and PW-2. Rugha Das and Sanwar Mal also had dispute with the appellants and, therefore, joined hands with complainant. PW-2 Sanwar Mal, in his examination-in-chief, itself admitted that Bhanwar Lal had dispute with the appellant Sheo Pal. Bhanwar Lal was a drunkard person and used to quarrel with villagers and this fact has been admitted by the prosecution witness (PW-2) Sanwar Mal in cross-examination. From the evidence of the prosecution itself, it is clear that the prosecution deliberately did not disclose the reason for fight and further did not disclose the dispute of Rugha Das and Sanwar Mal with the appellants and also did not disclose the dispute between Bhanwar Lal and Rugha Das and Sanwar Mal. The prosecution also suppressed the material fact of Bhanwar Lal's going to the house of the complainant. In view of the above, the entire story of the prosecution is proved to be a concocted story. 12. The appellants except Mahaveer have not denied their presence on spot. As per the appellant, appellant Sheo Pal went to intervene in the fight between Bhanwar Lal and Rugha Das and Sanwar Mal and the complainant Trilok Chand levelled false allegations against the appellants. 12. The appellants except Mahaveer have not denied their presence on spot. As per the appellant, appellant Sheo Pal went to intervene in the fight between Bhanwar Lal and Rugha Das and Sanwar Mal and the complainant Trilok Chand levelled false allegations against the appellants. It is also stated that the incident occurred on spur of moment and, therefore, there could not have been any common intention of the accused-appellants for committing any offence, therefore, the appellants Sheo Pal and Mahaveer have been wrongly convicted under Section 302, IPC with the aid of Section 34, IPC. From the statements of the prosecution witnesses itself, it is clear that Mahaveer came after the incident occurred and, therefore, he could not have occasion to premeditate for committing any offence with any other accused. Mahaveer has not over acted. The allegation of inflicting injuries by Kulhari, is upon only appellant Smt. Prem, who has been convicted under Section 302, IPC. The death has not been caused by the injuries caused by Sheo Pal, therefore, the conviction of appellant Sheo Pal and Mahaveer under Section 302/34, IPC deserves to be set aside. 13. The learned counsel for the appellants also submitted that neither Bhanwar Lal nor Trilok Chand were residing in the village since last about 20 years and were settled at the village Losal which is about 40 kms. away from the place of incident. Trilok Chand was coming to the village Kayamsar only because he was in service and used to distribute the Dak. The prosecution did not disclose what happened just before the alleged incident so that the appellant, brother of victim could have killed the victim. There is no allegation that before this incident, there was any quarrel much less to any fight between the appellants and Bhanwar Lal or with Trilok Chand, then why the appellants will inflict injuries upon Bhanwar Lal or Trilok Chand. 14. The learned counsel for the appellants also submitted that the independent witness, Smt. Saraswati(DW-1) elder lady of family, having equal relation with the accused and the victim, gave correct narration of the events how the incident occurred. She clearly stated that Bhanwar Lal was given beating by her husband's younger brother Rugha Das and his son Sanwar Mal by lathis and Sheo Pal went there to intervene in between that fight. Then Sheo Pal was given beating by Bhanwar Lal. She clearly stated that Bhanwar Lal was given beating by her husband's younger brother Rugha Das and his son Sanwar Mal by lathis and Sheo Pal went there to intervene in between that fight. Then Sheo Pal was given beating by Bhanwar Lal. Madan Lal also came to intervene, who came there to take his sister from the village. It is true that subsequent to the incident, DW-1 Smt. Saraswati lost her eyes but at the time of incident, she had her vision. The another witness DW-2 Lichhama is sister in relation of Bhanwar Lal as well as Sheo Pal. She clearly stated that her brother Bhanwar Lal and his son Trilok Chand came there with lathis and started fight with her uncle Rugha Das. The reason for dispute was demand of way by Bhanwar Lal through guwadi which was denied by witness's uncle obviously Rugha Das. The witness Lichhama(DW-2) called Sheo Pal to intervene only. The defence evidence is also equally important evidence and looking to the totality of the facts of the case, it is clear that the prosecution did not give the true and correct account of the incident and only on this ground alone, the entire story of the prosecution deserves to be rejected. In the alternative, in fact the aggressor was the victim and in exercise of right of private defence, the injuries were inflicted by the appellants. 15. The learned public prosecution submitted that the complainant and the witnesses were resident of a very small village. The complainant was illiterate and could have signed only. He got the FIR written and submitted in the Police Station, Baradwa at 1.45 a.m. on 17.2.1982 for the incident which occurred in the evening of 16.2.1982. The presence of Sheo Pal at the time of occurrence is admitted fact, as he admitted his presence in his statement recorded under Section 313, Cr.P.C. Complete and correct statements have been given in support of the prosecution by the witnesses PW- 1 Rugha Das, PW-2 Sanwar Mal and PW-7 Trilok Chand are the eye-witnesses. PW-8 Madan Lal is brother-in-law of Bhanwar Lal, who provided his bus and took the victim Bhanwar Lal to the Losal Hospital where the doctor told them to take the victim to a bigger hospital at Sikar. At Losal, the victim Bhanwar Lal was alive and he died before he could be taken to Sikar hospital. PW-8 Madan Lal is brother-in-law of Bhanwar Lal, who provided his bus and took the victim Bhanwar Lal to the Losal Hospital where the doctor told them to take the victim to a bigger hospital at Sikar. At Losal, the victim Bhanwar Lal was alive and he died before he could be taken to Sikar hospital. From cross-examination, the credibility of the witness has not been shattered or effected in any manner. The oral evidence has been fully corroborated by the medical evidence, documentary as well as oral statements of PW-5 Dr. Ram Singh and PW-9 Dr. Amrit Lal Soni. The complainant and his family members are poor villagers and gave their statements in court about where the FIR was written as per their memory and minor inconsistencies in the statements of these three witnesses referred above, about where the FIR was written, is absolutely insignificant and cannot affect the prosecution story. It is also submitted that the victim did not die on spot, so the family members of the victim first rushed to the hospital and not to the police station to report. Looking to the close relation as well as the fact that the hospital was not available nearby in the same village, the family members of the victim took the victim to the hospital for treatment and that was natural behaviour of the family members of the victim. PW-5 Dr. Ram Singh examined the body of deceased Bhanwar Lal and he clearly stated that Bhanwar Lal was brought in the hospital by Madan Lal and Ratan Lal. Bhanwar Lal died at 11.45 p.m. on 16.2.1982. He noticed nine injuries on the body of deceased Bhanwar Lal. He found the injuries as cause for death of the victim and the injuries were sufficient to cause death in the ordinary course, therefore, the oral evidence is fully corroborated by the medical evidence. The learned public prosecutor submitted that the defence witnesses are highly interested witnesses and they gave statements only to save their closest relatives who are the accused. 16. We considered the submissions of the learned counsel for the appellants and perused the record. 17. The learned public prosecutor submitted that the defence witnesses are highly interested witnesses and they gave statements only to save their closest relatives who are the accused. 16. We considered the submissions of the learned counsel for the appellants and perused the record. 17. The first objection of the learned counsel for the appellants is that the FIR was submitted after inordinate delay and that time was consumed only to fabricate the story and secondly, to cover up that delay in lodging FIR, the plea has been taken by the prosecution witnesses which is false and improbable. The facts reveal that as per the prosecution, the incident occurred at 6.30 p.m. in a small village, Kayamsar and the victim Bhanwar Lal was injured and not died on the spot. His injured son Trilok Chand (PW-7) stated that he and his father were taken to the hospital in the bus of Madan Lal, brother-in-law of deceased who brought the bus from the village Losal. It will be relevant to mention here that Losal is the village where deceased Bhanwar Lal was residing and he came to village Kayamsar only to visit his son (PW-7 Trilok Chand) and that the nearest hospital was at Losal. As per statement of PW-5 Ram Singh, the victim was brought in hospital at 11.30 p.m. on 16.2.1982. His condition was serious and in the opinion of PW-5 Dr. Ram Singh, the victim Bhanwar Lal was not in good condition so that he could have been moved to Sikar and, therefore, he gave emergency treatment to victim Bhanwar Lal and, thereafter, advised him to take Bhanwar Lal to the higher hospital at Sikar. In 15 minutes, the victim Bhanwar Lal died in the hospital. The report Ex. P.7 was submitted in the night of 16th and 17th February, 1982, at 1.45 a.m.. The formal FIR Ex. P.10 was registered and it was sent to the court at Deedwana at 2.45 p.m. In the facts referred above, there was no delay in lodging the FIR. Since the victim Bhanwar Lal was seriously injured and, therefore, he could have been taken to the hospital first and his son could have remained with his father and that was the natural behaviour of the complainant Trilok Chand. The place Kayamsar is very small village and Losal was nearer place where the doctor was available. Since the victim Bhanwar Lal was seriously injured and, therefore, he could have been taken to the hospital first and his son could have remained with his father and that was the natural behaviour of the complainant Trilok Chand. The place Kayamsar is very small village and Losal was nearer place where the doctor was available. When the victim is seriously ill then even if the matter is not reported to the police station for few hours, simply because the police station was nearer than the hospital, then because of this reason, the conduct of the complainant cannot be doubted. Therefore, we do not find any force in the submission of the learned counsel for the appellants that there was delay in lodging the FIR or to cover up the time consumed for concocting the story, the complainant and the prosecution witnesses gave false plea that the victim was taken to Losal before reporting the matter to the police station. 18. The next contention of the learned counsel for the appellants is that the prosecution witnesses gave different statements about the writing and lodging the report. After perusing the statements of the witnesses PW-1 Rugha Das, PW-2 Sanwar Mal, PW-7 Trilok Chand and PW-8 Madan Lal, we are of the view that in fact there is no contradictions in their statements so far as writing of FIR and its submission to the police station. From the statements of all these witnesses, it appears that Trilok Chand was illiterate and was knowing only to sign. PW-2 Sanwar Mal stated that to report the matter to the police station, Madan Lal went and he stated that he did not go with Madan Lal. He in cross-examination stated that Trilok Chand wrote report in the hospital but he wrote only 2- 3 letters. PW-8 Madan Lal corroborated that statement and in cross-examination, he stated that he went to report the matter to the police station with Trilok Chand and he stated that the report was written at bus stand of Losal but he stated that he had no knowledge, who had written the report. He further stated that at police station, Munshi of the police station was there and he told them that the report which they brought is not proper and, thereafter, another report was written. He further stated that at police station, Munshi of the police station was there and he told them that the report which they brought is not proper and, thereafter, another report was written. The complainant PW-7 Trilok Chand stated that he is not literate and he knows only to sign. He got the report written at the police station. He stated that the SHO was not present at that time and the report was written by the Munshi and one more person was there to whom the complainant Trilok Chand was not knowing. However, according to him, the person who wrote the report on complainant's dictation, was man of police. From conjoint reading of statements of PW-2 Sanwar Mal and PW-8 Madan Lal and the complainant, it appears that the complainant tried to wrote the report and that was not proper, because the complainant was not knowing writing and was knowing only to sign, therefore, as per his dictation, the report was written. Who wrote the report, the complainant was not knowing as there was Munshi and one other person at the time of writing the report. Then PW-11 Ratan Lal, Incharge of the police station, stated that written report was submitted by Trilok Chand and on the basis of which FIR was registered and he obtained the signatures of Trilok Chand at three places. He also made endorsement on written report (Ex. P.7) of Trilok Chand and signed the FIR also. He obtained the signatures of Trilok Chand on formal FIR. He went on spot in the night itself. It was dark and, therefore, he came back. PW-11 Ratan Lal who was incharge of the police station, stated that the report was brought from out side by Trilok Chand, then that is not a material fact, on the basis of which it can be doubted that there was any other report than the report which was lodged by the complainant Trilok Chand. Therefore, Ex.P.7 is the first report submitted to the police by the complainant. 19. So far as evidence is concerned, PW-7 Trilok Chand, the complainant, who submitted the written report(Ex. P.7) stated that he submitted written report(Ex. P.7) and shown the site to the police for which site report Ex. P.5 was prepared. At that time, blood was found spread on the soil. The blood soil and sample soil were seized and panchnama for the body Ex. P.7) stated that he submitted written report(Ex. P.7) and shown the site to the police for which site report Ex. P.5 was prepared. At that time, blood was found spread on the soil. The blood soil and sample soil were seized and panchnama for the body Ex. P.2 was prepared. The witness Trilok Chand's shirt also got blood stains which was handed over by the witness to the police for which memo Ex. P.3 was prepared. His father victim Bhanwar Lal's clothes were also seized, reference of which is in Ex. P.1. The witness Trilok Chand stated that his father was residing at village Losal and on that day, he came to his house in the village. There was a 'gaur' behind their house and for that there was dispute and because of that dispute, accused Sheo Pal, her wife Prem and Sheo Pal's brother-in-law Mahaveer and Sheo Pal's daughter Santosh came from their kitchen in front of complainant's chowk. Mahaveer and Ratan Lal had lathis with them whereas Sheo Pal's wife Prem had kulhari with her. Sheo Pal's daughter had also small stick in her hand. The specific injury by kulhari has been assigned to Smt. Prem. As per the post-mortem, report Ex.P.4, the deceased had four incised wounds which were on vital parts, i.e. on parietal region and other parts. The injuries were proved by PW-5 Dr. Ram Singh. The other accused inflicted injuries by lathis upon victim Bhanwar Lal which is also corroborated by medical evidence. Sheo Pal also inflicted injury by dang. Sheo Pal also inflicted injuries by lathi upon the witnesses Trilok Chand, which is corroborated by the statement of PW-9 Dr.Amrit Lal. He stated that his father and he were taken to the hospital at Losal. The doctor found the condition of victim Bhanwar Lal grave and advised them, that take Bhanwar Lal to other hospital within 10 minutes, otherwise he may die. In cross-examination, he gave the reason for the dispute between his father and the accused party and in cross-examination, he again narrated the incident of inflicting various injuries by the accused. The learned counsel for the appellants vehemently submitted that Trilok Chand (PW-7) complainant stated that Smt. Prem gave three beatings by kulhari upon him and all slipped from his body because of his shirt only, which clearly shows that he is a lier. The learned counsel for the appellants vehemently submitted that Trilok Chand (PW-7) complainant stated that Smt. Prem gave three beatings by kulhari upon him and all slipped from his body because of his shirt only, which clearly shows that he is a lier. It is true that the witness Trilok Chand stated so but it is not highly improbable so as to discard this evidence on its face value only. It may happen provided the angle of the blow and the angle by which the body received the blow are of such type that instead of getting the injury, the weapon may slip. Otherwise also, even if it was an exaggeration of the witness PW-7 Trilok Chand in narrating the account of the injuries inflicted by Smt. Prem, his testimony cannot be discarded and doubted when his testimony on other count finds support from other evidence. We also do not find any force in the submission of the learned counsel for the appellants that in cross-examination, the witness Trilok Chand(PW-7) stated that he fell over his father Bhanwar Lal to cover him and, therefore, his father Bhanwar Lal did not suffer any injury by lathi and, therefore, the statement of the witness is contrary to the medical evidence as, as per the medical report, the victim Bhanwar Lal suffered injuries from blunt weapon also. The witness Trilok Chand's said part of statement was only with respect to inflicting of lathi blow after his father Bhanwar Lal fell down. Bhanwar Lal suffered injuries by lathi blow before he fell down, is the statement given by witness Trilok Chand. Trilok Chand suffered injuries in the incident, has been proved by the witness PW-9 Dr. Amrit Lal Soni, who examined Trilok Chand on 17.2.1982 itself and issued injury report Ex. P.9. Trilok Chand, suffered four injuries. In cross-examination, PW-9 Amrit Lal Soni stated that the injuries suffered by Trilok Chand cannot be self-inflicted, however, those injuries could have come due to falling of a person. The prosecution witness PW-9 Amrit Lal Soni also examined accused Mahaveer and accused-appellant Sheo Pal. These accused suffered one and two injuries respectively. 20. PW-9 Dr. Amrit Lal Soni also stated that accused Mahaveer and Sheo Pal were brought before him by the police and at the request of the police, he examined accused-appellants Mahaveer and Sheo Pal. As per PW-9 Dr. These accused suffered one and two injuries respectively. 20. PW-9 Dr. Amrit Lal Soni also stated that accused Mahaveer and Sheo Pal were brought before him by the police and at the request of the police, he examined accused-appellants Mahaveer and Sheo Pal. As per PW-9 Dr. Amrit Lal Soni, even one injury suffered by Mahaveer and two injuries suffered by Sheo Pal were not self-inflicted injuries nor could have been inflicted by one himself. In the injury reports of Mahaveer(Ex. D.1) and Sheo Pal (Ex. D.2), the duration of injuries is within three days. They were examined on 19.2.1982. Therefore, these injuries must have been suffered by the accused Sheo Pal and Mahaveer in the same incident which took place on 16.2.1982. In the report Ex. P.7 itself, the complainant Trilok Chand mentioned that during this fight, he gave beating by lathi, which was suffered by the accused-appellants. Therefore, the presence of the accused-appellants at the time of scene of occurrence and their taking part in inflicting injuries upon Bhanwar Lal, so far as accused Sheo Pal and Mahaveer are concerned, that is proved by oral as well as their medical reports Ex. D.1 and Ex. D.2, which corroborates the oral testimony of the eye-witnesses PW-1 Rugha Das, PW-2 Sanwar Mal and PW-7 Trilok Chand. Appellant Sheo Pal went on the spot at the relevant time, is admitted by Sheo Pal in his statement under Section 313, Cr.P.C. and he also admitted that he suffered injury during that fight. At the same time, Mahaveer Suffered injury but in his statement under Section 313, Cr.P.C., he merely stated that he did not inflict any injury. He has not explained, how he suffered injuries, if he was not present at the time of the incident. The defence witness DW-1 Smt. Saraswati admitted that the accused-appellant Mahaveer was present on spot, as he came there to take with him her sister. She further stated that Mahaveer also tried to intervene in the dispute and made efforts to separate the persons fighting. Therefore, from their defence evidence also, it is proved that appellants Mahaveer, Sheo Pal and Smt. Prem all took part in inflicting injuries upon deceased Bhanwar Lal and upon the victim Trilok Chand. 21. She further stated that Mahaveer also tried to intervene in the dispute and made efforts to separate the persons fighting. Therefore, from their defence evidence also, it is proved that appellants Mahaveer, Sheo Pal and Smt. Prem all took part in inflicting injuries upon deceased Bhanwar Lal and upon the victim Trilok Chand. 21. From the statements of all three eye-witnesses, PW-1 Rugha Das, PW-2 Sanwar Mal and PW-7 Trilok Chand and the supporting witness PW-8 Madan Lal, it is proved by the prosecution that deceased Bhanwar Lal came in the village Kayamsar on that unfortunate day and in the village, his son Trilok Chand was also there. At that time, the accused inflicted injuries upon deceased Bhanwar Lal and victim Trilok Chand. It is also proved that the appellant Mahaveer also came to the village, to his sister's house and as per the statement of PW-7 Trilok Chand, first Mahaveer hit on the head of Bhanwar Lal by lathi, because of which deceased Bhanwar Lal fell down, then her aunty appellant Smt. Prem inflicted injury by kulhari upon deceased Bhanwar Lal and Sheo Pal inflicted injury by dang. DW-1 Smt. Saraswati, who is elder lady of the family of the accused-appellants, tried to give different colour by saying that deceased Bhanwar Lal and his son complainant Trilok Chand were fighting with prosecution witness Rugha Das and during that quarrel, deceased Bhanwar Lal abused defence witness DW-1 Smt. Saraswati and appellant Smt. Prem. She stated that her daughter Lichhama called Sheo Pal on spot to intervene. Mahaveer also came there. She stated that Bhanwar Lal was taken by Rugha Das and his son Sanwar Mal(both are prosecution witnesses) and Sheo Pal was given beating by Bhanwar Lal. She gave partially true and partially false statement. She admitted the incident and she stated about the injuries suffered by his son Sheo Pal but did not disclose how deceased Bhanwar Lal suffered so many injuries, if were not inflicted by the appellants. From the statement of DW-1 Smt. Saraswati and DW-2 Smt. Lichhama, the fact proved is that the incident occurred wherein appellant Mahaveer and Sheo Pal also suffered injuries and, in view of the direct and ocular evidence, it is proved beyond doubt that appellant Smt. Prem inflicted the fatal injury upon deceased Bhanwar Lal. 22. From the statement of DW-1 Smt. Saraswati and DW-2 Smt. Lichhama, the fact proved is that the incident occurred wherein appellant Mahaveer and Sheo Pal also suffered injuries and, in view of the direct and ocular evidence, it is proved beyond doubt that appellant Smt. Prem inflicted the fatal injury upon deceased Bhanwar Lal. 22. Next question for consideration arises is that whether appellant Smt. Prem has been rightly convicted for offence punishable under Section 302, IPC and appellant Sheo Pal has been rightly convicted for offence punishable under Section 302/34, IPC. For this it will be worthwhile to mention here that the prosecution witness PW-1 Rugha Das, in his cross-examination, clearly stated that before this incident, he never saw any dispute or fight between the brothers, obviously appellant Sheo Pal and his brother Bhanwar Lal. PW-2 Sanwar Mal also clearly admitted that before this incident, he never saw any dispute between Bhanwar Lal and accused and, thereafter, he stated that the fight started all of sudden. The victim-injured-the complainant PW-7 Trilok Chand, in his statement, clearly stated that only on this unfortunate day, his father came from village Losal and he also stated that just seeing his father, the accused started beating him. In crossexamination, he admitted that he and his father both are residing at village Losal since last 20 years. He further admitted in his cross-examination that in the house, his uncle and Sheo Pal both have share. The incident occurred a step away from the kitchen of Sheo Pal. Sheo Pal's wife was sitting in the kitchen. He also admitted that his father's sister Laxmi and his grand-mother both were also present there. There is possibility that, to talk victim Bhanwar Lal might have gone towards the residence of accused appellant where that incident happened and there, in quarrel accused inflicted the injuries upon deceased Bhanwar Lal and on Trilok Chand. In view of the statement of PW-1 Rugha Das, PW-2 Sanwar Mal and PW-7 Trilok Chand, it appears that the dispute occurred all of sudden on spur of moment and that situation injuries were inflicted by the accused upon the deceased Bhanwar Lal and that act was not pre-meditated. The accused Smt. Prem was knowing well that because of injuries, the victim Bhanwar Lal is likely to die. The accused Smt. Prem was knowing well that because of injuries, the victim Bhanwar Lal is likely to die. Looking to the close relation, the place of incident and because of the reason that there was no previous serious enmity between the deceased Bhanwar Lal and the accused-appellants, it appears that without any intention to kill, the injuries were inflicted upon victim which went fatal. The appellant Sheo Pal and Mahaveer have not inflicted injuries by any deadly or sharp edged weapon nor snatched the kulhari from Smt. Prem to eliminate the victim Bhanswar Lal. It appears from the evidence on record that the appellant Mahaveer was present on the spot incidentally and took part in the fight but so far as appellant Smt. Prem is concerned, she came with the weapon(kulhari), therefore, she alone is responsible for the fatal injury caused upon deceased Bhanwar Lal. But she also inflicted fatal injury without intention to kill deceased Bhanwar Lal, therefore, the conviction of appellant Smt. Prem for offence punishable under Section 302, IPC deserves to be altered to one punishable under Section 304 Part I, IPC. Appellant Sheo Pal is responsible for his own act of causing simple injuries upon victim Bhanwar Lal and Trilok Chand but all injuries, as per statement of PW-5 Dr. Ram Singh, were of simple nature. Therefore, appellant Sheo Pal's conviction for offence punishable under Section 302/34, IPC is set aside. However, his conviction and sentence under Section 323, IPC is upheld also deserves to be altered from offence punishable under Section 302/34, IPC to under Section 323, IPC. 23. As held above, appellant Mahaveer also took part in inflicting injuries upon the victim. So far as his conviction under Section 302/34, IPC is concerned, that cannot be sustained. Mahaveer came to meet with her sister or to take her sister with him. There is no evidence of the prosecution that the accused Mahaveer was also knowing that victim Bhanwar Lal will be coming to village Kayamsar, where the incident occurred. The statement of witness Trilok Chand, complainant is that Mahaveer inflicted injury on the head of Bhanwar Lal by lathi. The victim Bhanwar Lal died not because of that injury and he died because of the injuries suffered by sharp edged weapon(injuries no.1,2 and 3). Injury no.5 is on occipital region and was only a lacerated wound on the body of deceased Bhanwar Lal. The victim Bhanwar Lal died not because of that injury and he died because of the injuries suffered by sharp edged weapon(injuries no.1,2 and 3). Injury no.5 is on occipital region and was only a lacerated wound on the body of deceased Bhanwar Lal. Injuries no.6,7,8 and 9 are also simple in nature. Therefore, it appears that Mahaveer, came from outside, was present at the time of incident and involved himself in the dispute and inflicted one of the two blows of lathi on Bhanwar Lal but neither he could have any intention to kill deceased Bhanwar Lal nor he could have reason to pre-meditate for killing Bhanwar Lal. In view of the above reasons, conviction of the appellant Mahaveer under Section 302/34, IPC deserves to be set aside. However, since he also caused simple injury, therefore, his conviction is altered to conviction under Section 323, IPC and sentenced to undergo one year's rigorous imprisonment. The appellant Mahaveer has already served that sentence. 24. In view of the above reasons, the appeals of the appellants are partly allowed and the conviction of appellant Smt. Prem is altered from offence punishable under Section 302, IPC to under Section 304 Part I, IPC and she is sentenced to undergo 10 years' imprisonment with fine of Rs.10,000/- and, in default thereof, to undergo one month's rigorous imprisonment. The conviction of appellant Sheo Pal and Mahaveer are altered from offence punishable under Section 302/34, IPC to under Section to under Section 323, IPC. Appellant Sheo Pal and Mahaveer each is sentenced to undergo one year's rigorous imprisonment. Appellant Smt. Prem is on bail, her bail bonds are cancelled. She should surrender to serve the remaining part of the sentence. Appellants Sheo Pal and Mahaveer are already enlarged on bail and since they have served awarded sentences for more than one year, therefore, their bail bonds are cancelled. They need not to surrender.Appeals Partly Allowed *******