Judgment ( 1. ) THE appeal has been preferred by the appellants aggrieved by judgment dated 5. 1. 93 delivered by Ist Addl. Sessions Judge, Satna in st No. 23/92 thereby convicting them for commission of offence under Section 302/34 IPC and sentencing them to undergo rigorous life imprisonment and fine of Rs. 1000/- each, in default of payment of fine to further undergo r. I. for two years. They have been acquitted for commission of offence under Section 323/34 IPC. ( 2. ) PROSECUTION case, in brief, is that there was dispute as to the land between the deceased and accused persons. On 9. 2. 91 at about 8. 30 AM deceased Ramashankar alias Munni had gone to bus stand to deliver the milk in a vehicle owned by govt. Co-operative Milk Corporation. The deceased was sitting on a platform beside Betel shop, accused persons were standing there with lathis. Accused Harishankar asked accused kaushal to finish Ramashankar alias Munni whereupon the deceased was assaulted by both the accused persons with the help of lathis. Ramashankar alias Munni fell on the platform. Each of the accused persons had given 7-8 blows of the lathi on the head and back of the deceased. Jitendra Kumar (PW. 11), son of deceased, raised hue and cry while running away. Accused persons escaped towards the Basti. There was enmity of the family members as to commission of murder of son of accused harishankar by the family of the deceased. Shakuntala (PW. 12) and other milk vendors have witnessed the incident. First Information report was lodged at 10. 20 AM at the distance of about 15 kms. at the concerned police station. Report was lodged by Jitendra Kumar (PW. 11), son of deceased. Marg intimation report was registered on the basis of which FIR was registered, inquest of the dead body was prepared. Other investigation was also done. Autopsy was performed by Dr. A. K. Agarwal (PW. 13 ). He has found two injuries on the person of deceased, one was incised wound 4cm. x 2cm. over left parietal region, out of which brain material was coming out, there was blood clotting also, second injury was in the form of lacerated wound 10cm. x 4cm. bone deep, bone pieces were coming out along with brain material, blood clotting was also found around the wound, multiple fractures were found on skull. The accused were arrested. x 2cm. over left parietal region, out of which brain material was coming out, there was blood clotting also, second injury was in the form of lacerated wound 10cm. x 4cm. bone deep, bone pieces were coming out along with brain material, blood clotting was also found around the wound, multiple fractures were found on skull. The accused were arrested. As per information submitted by them, seizure of weapon of offence and clothes,etc. was made. ( 3. ) RAJESH Kumar (PW. 7) was also examined by dr. Sunil, simple injuries were found on his person on outer portion of left elbow. ( 4. ) THE accused persons were charge sheeted. They abjured the guilt and contended that they have been falsely implicated due to animosity. Aggrieved by the conviction and sentence imposed under Section 302/34 IPC, the instant appeal has been preferred. ( 5. ) SHRI Geetesh Singh Thakur, learned counsel appearing for appellants has submitted that it would be a case under Section 304 Part I ipc. Learned counsel has further submitted that one of the injury has been found to be incised wound which could not be attributed to any of the accused persons as they were carrying lathis not the sharp edged weapon. Thus, the ocular version is belied by the medical version. Consequently, the appellants ought to have been acquitted. ( 6. ) SHRI R. S. Patel,learned Addl. AG appearing for State has submitted that it was not a case of sudden quarrel, accused were waiting for the deceased to arrive at the place where he used to go regularly to hand over the milk at the bus stand, on seeing him they decided to finish him and started beating, multiple fractures of skull was found. He has relied upon decision of Apex court in Dashrath Singh vs. State of U. P. AIR 2004 SC 4488 to contend that there is possibility of confusion whether wound is incised or lacerated one particularly when it is on the head. ( 7. ) IN the instant case, we find on record statement of witnesses, namely, Jitendra Kumar (PW. 11) and Shakuntala (PW. 12) to be reliable. The other witnesses have not supported the prosecution case. Jitendra Kumar (PW. 11) is the son of deceased. ( 7. ) IN the instant case, we find on record statement of witnesses, namely, Jitendra Kumar (PW. 11) and Shakuntala (PW. 12) to be reliable. The other witnesses have not supported the prosecution case. Jitendra Kumar (PW. 11) is the son of deceased. He has stated that he was standing near the Betal Shop at Bus Stand, his father was sitting by the side of Gomti on the platform, other persons were also sitting on the platform, milk was being measured. Both the accused decided to kill the deceased and started inflicting blows on the persons of deceased. First blow was inflicted by Harishankar on the head of deceased due to which Ramashankar alias munni fell off the platform, Kaushal inflicted the second blow, thereafter 7-8 blows were inflicted by both the accused persons. It does not appear from the statement of witness nor it was suggested in the cross-examination that there was any sudden quarrel or that altercation took place on the spur of the moment. The witness has denied that injuries were inflicted with the help of an axe. When we come to the statement of Shakuntala (PW. 12), wife of the deceased, she had seen the accused persons inflicting lathi blows. Merely by the fact that her police statement was recorded after four days of the incident, her version could not be discarded. FIR has been lodged promptly in the instant case, incident took place at about 8. 30 am, police station is situated at about 15 kms. distance from the place of incident , thus, fir lodged at 10. 20 AM was prompt. In the FIR names of both the accused persons were mentioned as assailants. ( 8. ) COMING to the medical evidence, postmortem report (P. 22) has been proved by dr. A. K. Agarwal (PW. 13 ). He has stated that there was incised wound admeasuring 4 cm. x2cm. bone deep on the left parietal region out of which brain material was coming out, blood clotting was present. He has also stated that another wound was lacerated one admeasuring 10cm. x 4cm. bone deep on the middle of the head out of which pieces of bones and brain material was coming out, blood clotting was also found present, there were multiple fractures of the skull. No other injuries were found. The doctor has opined that injury no. He has also stated that another wound was lacerated one admeasuring 10cm. x 4cm. bone deep on the middle of the head out of which pieces of bones and brain material was coming out, blood clotting was also found present, there were multiple fractures of the skull. No other injuries were found. The doctor has opined that injury no. (1) was incised wound, however, the version of the doctor considering the nature of injuries could not be said to be reliable with respect to injury no. (1) being incised wound, brain material was coming out and there was blood clotting. The apex Court has laid down in Dashrath Singh vs. State of U. P. (supra) that in such a factual situation there may be confusion as to the wound whether it is incised or lacerated. The Apex court relying upon Modis Medical Jurisprudence has held thus :- "23. In Modis Medical jurisprudence and Toxicology (Twenty-Second edition) edited by b. V. Subrahmanyam, it is explained at page 342: "occasionally, on wounds produced by a blunt weapon or by a fall, the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, iliac,crest, skin, perineum etc. . . . . . . " It is further clarified at Page 404- ". . . . A scalp wound by a blunt weapon may resemble an incised wound, hence the edges and ends of the wound must be carefully seen to make out a torn edge from a cut and also to distinguish a crushed hair bulb from one cut or torn. . . . . . " therefore, the evidence of the medical Officer does not necessarily lead to the conclusion that the injury found on the occipital region/skull could not have been caused by a lathi or stick. Even if there is some doubt on this aspect, taking an overall view, we do not consider it a legitimate ground to reject the prosecution case lock, stock and barrel. " ( 9. ) THERE were multiple fractures and pieces of bone were coming out, thus, on vital part of the body blows were inflicted. There were multiple fractures which could have been caused by blows which were inflicted. " ( 9. ) THERE were multiple fractures and pieces of bone were coming out, thus, on vital part of the body blows were inflicted. There were multiple fractures which could have been caused by blows which were inflicted. The doctor has also mentioned in para 6 of his deposition on being questions by the Court that margin is cut clearly in the case of incised wound, it was not mentioned by him that margin of the wound was clearly cut of the incised wound noted by him in the autopsy report. In the absence of doctor mentioning margin was clearly cut, possibility of confusion between the lacerated wound and incised wound was not ruled out in the instant case. It appears that blows were inflicted with force without any sudden provocation. The incident appears to have been committed by the accused persons in pre-meditated manner, they shared common intention. Consequently, we find the conviction of the appellant recorded by the trial Court to be proper. ( 10. ) RESULTANTLY, the appeal being devoid of merits is hereby dismissed. Appellants are on bail, their bail bonds stand cancelled and they are directed to surrender forthwith to undergo the remaining part of the jail sentence.