Judgment A.K.Shrivastava ( 1. ) Feeling aggrieved by the judgment of conviction and order of sentence dated 17.4.2001 passed by learned Sessions Judge, Bhind, in Sessions Trial No.142/1999 convicting appellants under Section 302/34 as well as under Section 324/34 of IPC and thereby sentencing them to suffer imprisonment as mentioned in the impugned judgment, the appellants have knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. ( 2. ) In brief, the case of prosecution is that there is enmity between Siddar Khan and Ashraf Khan (appellants 1 and 2) on one side and Ismail Khan (complainant) on the other side earlier to the incident and making it a point to cause death of the deceased, all the appellants on 29.3.1999 at about 8.30 p.m. sharing the common intention to cause death, came to the house of Natthe Khan (hereinafter referred to as the deceased) carrying Dhariya (sharp edged weapon) in their hands. On seeing the deceased, all the appellants assaulted him. It is the further case of prosecution that appellant Ashraf Khan, Siddar Khan and Nanhe Khan caused blows by Dhariyas, which they were carrying to the deceased. One blow landed on the left side of head and other injuries were caused on the temporal region as well as on the hands. On hearing the shriek of the deceased, his son complainant Ismail Khan came to the spot and when he tried to rescue his father (deceased), it is said that appellant No.4- Allah Khan caused Dhariya blow to him. The entire episode has been witnessed by Sukhe Khan and Siddar Khan. After causing injuries to the deceased, all the accused persons fled from the place of occurrence. ( 3. ) After the incident took place, the deceased was brought in injured condition by complainant Ismail Khan to police Station Gormi where he lodged FIR. On lodging of the FIR, criminal law was triggered and set in motion. ( 4. After causing injuries to the deceased, all the accused persons fled from the place of occurrence. ( 3. ) After the incident took place, the deceased was brought in injured condition by complainant Ismail Khan to police Station Gormi where he lodged FIR. On lodging of the FIR, criminal law was triggered and set in motion. ( 4. ) The investigating agency arrived at the spot; prepared the spot map; seized ordinary and blood stained earth from the place of occurrence; sent deceased Natthe Khan, who was seriously injured at that time, to hospital for obtaining his MLC report as well as for his treatment and also sent injured complainant Ismail Khan for obtaining his MLC report as well as to provide treatment to him; recorded the statements of the witnesses; accused persons were arrested and from their possession Dhariyas, which were used as weapons in the commission of the offence, were also seized. ( 5. ) After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session where all the appellants were tried. ( 6. ) The learned Trial Judge framed charges which are mentioned in para 1 of the impugned judgment. Needless to say, all the appellants abjured their guilt and pleaded complete innocence. ( 7. ) In order to bring home the charges, the prosecution examined its witnesses and also proved certain documents. The defence of appellants is of alibi as they were busy in the marriage affairs of Allahddin, who is the nephew of appellant Siddar Khan and all other appellants since they are closely related to each other, were also present in the marriage ceremony. The other defence of appellants is that there was no motive on their part to kill the deceased although it has been borne out from the evidence that they were having some motive against the complainant and if that would be the position, why appellants would kill the deceased. The other defence of appellants is that there was no motive on their part to kill the deceased although it has been borne out from the evidence that they were having some motive against the complainant and if that would be the position, why appellants would kill the deceased. Some whisper has also come in the evidence of Sukhe Khan (PW-8) that the deceased caused murder of one Guddi Bai earlier to the date of incident [see para 5 of the statement of (PW8) Sukhe Khan] and in these state of affairs, this possibility cannot be ruled out that some unknown persons have killed the deceased and in order to implicate the appellants, since there is enmity, they have been falsely implicated. In support of their defence, the appellants examined five witnesses, they are Hussain Khan (DW-1), Kamruddin (DW-2), Kazi Sirajuddin (DW-3), Angad (DW-4) and Imamkhan (DW-5) and out of these witnesses, Sirajuddin (DW-3) is the Kazi who solemnized the Nikah of Allahddin and Parveen Bano and prepared the Nikahnama, in which the name of appellant No.1- Siddar Khan has been mentioned in the column of Vakeel. ( 8. ) The learned Trial Judge on the basis of evidence placed on record, came to hold that charges are proved against the appellants, as a result of which, convicted them and passed the sentence which is mentioned in the impugned judgment. ( 9. ) In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. ( 10. ) Vehemently, it has been contended by Shri Sanjay Gupta and Shri Atul Gupta, learned counsel for the appellants, that there was no motive for the appellants to kill the deceased, although it is borne out from the evidence that they were having some enmity with the complainant and if that would be the position, why they will kill the deceased. It has been then contended by them that earlier to the incident, deceased caused a murder of one Guddi Bai and on the report of Ashraf Khan and Nanhe Khan several cases were registered against complainant Ismail Khan, and therefore, there is possibility that deceased might have been killed by some unknown persons and in order to implicate the appellants falsely, they have been roped in this case. It has been then contended by learned counsel that from the evidence of prosecution witnesses as well as from the evidence of defence witnesses, it is emphatically proved that appellant No.1-Siddar Khan was the Vakeel in the marriage of Allahddin and Parveen Bano which took place on the same date and time when the alleged incident took place. In this context, learned counsel has invited our attention to the testimony of Kazi Sirajuddin (DW-3) as well as the document Ex.D-5 which has been proved by this witness. So far as other appellants are concerned, it has been contended that since all of them are thickly related to each other as well as to the family of groom, therefore, all of them were present in the marriage of Allahddin. ( 11. ) It has been then contended by learned counsel that the FIR (Ex.P-1) is ante-time and ante-dated and in support of their argument, learned counsel has invited our attention to the testimony of complainant/injured Ismail Khan (PW-1) as well as the testimony of Hoshiyar Khan (PW-6). Learned counsel further submitted that injury No.1, which is said to have been caused by appellant Ashraf Khan, was fatal in nature and other injuries may be grievous, but they were not fatal, and therefore, all the appellants cannot be convicted under Section 302/34 of IPC. Learned counsel has also argued that looking to the evidence of prosecution witness, it is difficult to hold that which of the appellant caused which particular injury and on which part of the body, and therefore, since other injuries except injury No.1 were not on vital part and they were not fatal, the benefit would go to the appellants. Learned counsel has also invited our attention to the evidence of investigating officer as well as other witnesses that weapons which were seized were not the same weapons which were said to have been used in the commission of the offence, and therefore, the defence which they have taken that some unknown persons have caused injuries has been strengthen. prosecution he came alongwith other appellants, but he did not cause any injury to the deceased, but caused injury to injured only, and therefore, he cannot be convicted under Section 302/34 of IPC. On these premised submissions, it has been contended by learned counsel that by allowing this appeal, the judgment of conviction and order of sentence be set aside. prosecution he came alongwith other appellants, but he did not cause any injury to the deceased, but caused injury to injured only, and therefore, he cannot be convicted under Section 302/34 of IPC. On these premised submissions, it has been contended by learned counsel that by allowing this appeal, the judgment of conviction and order of sentence be set aside. ( 13. ) On the other hand, Shri C.S.Dixit, learned Public Prosecutor, argued in support of impugned judgment and submitted that there is ample evidence of the eye-witnesses that all the appellants armed with weapons came and caused injuries to the deceased, as a result of which, he had died and appellant Allah Khan also caused injuries to injured/complainant Ismail Khan by Dhariya when he tried to rescue his father (deceased), and therefore, all of them have been rightly convicted for the charges which were framed by learned Trial Court and this appeal sans substance and the same be dismissed. ( 14. ) Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. ( 15. ) In the present case, the prosecution has examined as many as four eye-witnesses, they are Ismail Khan (PW-1), Siddar Khan (PW-2), Hoshiyar Khan (PW-6) and Sukhe Khan (PW-8). Needless to say, Ismail Khan is the son of the deceased and is also an injured witness. The other witnesses Siddar Khan, Hoshiyar Khan and Sukhe Khan are the cousins of the deceased. Similarly, appellant No.2-Ashraf Khan is the brother of appellant No.1-Siddar Khan and other two appellants are cousins of Siddar Khan. ( 16. ) The FIR (Ex.P-1) was lodged by injured witness Ismail Khan (PW-1) and he accompanied his injured father (who later on died) to the police Station. The MLC report of deceased is Ex.P-18 and Dr. V.C.Jain (PW-4) proved the MLC report of the deceased. The MLC report of complainant is Ex.P-19 and he was also examined by the same Dr. V.C.Jain. After the death of the deceased, postmortem of his dead-body was conducted by Dr. Ajit Mishra (PW-9) and his postmortem report is Ex.P-20. On bare perusal of the testimony of autopsy surgeon Dr. V.C.Jain (PW-4) proved the MLC report of the deceased. The MLC report of complainant is Ex.P-19 and he was also examined by the same Dr. V.C.Jain. After the death of the deceased, postmortem of his dead-body was conducted by Dr. Ajit Mishra (PW-9) and his postmortem report is Ex.P-20. On bare perusal of the testimony of autopsy surgeon Dr. Ajit Mishra (PW-9) and his postmortem report (Ex.P-20), we find following injuries on the person of the deceased :- "(i) One incised wound 10 cm x 2 cm x 2 cm (bone deep) situated over left side at the temporo parietal region. Bone cut and fracture of bone due to injury seen. Wound is obliquely placed. "(ii) Incised wound 12 cm x 2 cm x 2 cm situated on right cheek extending from nose to frontal region of forehead. Maxillary bone cut and fractured. Wound is obliquely placed. (iii) Incised wound 10 cm x 4 cm x 3 cm situated on right chin. Margin regular, blood clot, placed transversely. (iv) Incised wound 10 cm x 2 cm x 3 cm situated on right hand dorsally to index finger, vertically placed, bone cut and fracture of bone seen. (v) Incised wound 8 cm x 3 cm x 2 cm situated on lower 1/3 of left side forearm, bone cut, transversely placed. " According to the autopsy surgeon, injury No.1 was fatal in nature and other injuries were grievous and the cause of death was haemorrhage from all the wounds. ( 17. ) On bare perusal of the evidence of complainant Ismail Khan (PW-1), who is also an injured witness, we find that on the date of incident at 8.30 p.m. the deceased was standing at the door and this witness was inside the house. At that time, he heard the shriek of his father who was scolding that Ashraf Khan and Siddar Khan are killing. On hearing hue and cry, this witness came out and saw that all the appellants carrying Dhariya were standing there. This witness further says that appellant Ashraf Khan dealt Dhariya blow on the left side of the deceased, appellant Siddar Khan dealt Dhariya blow which landed on the temporal and eye region of the deceased and after falling of the deceased, appellant Nanhe Khan caused blow by Dhariya which landed on his hands because the deceased raised his hands in order to save him. Specifically this witness is saying that when he rushed to rescue his father, appellant Allah Khan caused Dhariya blow on the left side of his forehead. On hearing hue and cry, Sukhe Khan and Siddar Khan (name of one witness is also Siddar Khan) arrived there. ( 18. ) Specifically this witness is saying that after the incident had occurred, he went to lodge the report (Ex.P-1) which was proved by him. In very specific words, he is saying that from the police Station deceased and this witness were sent to the hospital. ( 19. ) This witness was cross-examined at length, but he remained embedded to his version despite there being a roving cross-examination over him. From every angle we have examined the testimony of this witness and we find that his testimony to be clear, cogent and trustworthy and learned Trial Court did not commit any error in placing reliance on the testimony of this witness. ( 20. ) We do not find any merit in the contention of learned counsel for the appellants that FIR (Ex.P-1) is ante-time and ante-dated and the original FIR has been suppressed. On going through the FIR (Ex.P-1), we find that specifically it has been mentioned in it that the complainant brought his injured father to the police Station. If in para 3 of his examination-in-chief complainant Ismail Khan (PW-1) has stated that he went to lodge the report, it would not mean that he was not accompanied by his father who was seriously injured and who later on died. Further, this witness has clarified in the same para that from the police Station he and his father were sent to Primary Health Center, Gormi, and from where his father was referred to District Hospital, Bhind, and by that time he could reach District Hospital, he had died. ( 21. ) We are not at all impressed by the submission of learned counsel for the appellant that looking to the testimony of Hoshiyar Khan (PW-6) para 9, first of all the deceased was brought to the hospital and the complainant Ismail Khan went to police Station and brought the police persons, and therefore, it can be inferred that FIR (Ex.P-1) is ante-time and ante-dated, for two reasons. Firstly, this type of suggestion was not put to the author of the FIR Ismail Khan (PW-1). Firstly, this type of suggestion was not put to the author of the FIR Ismail Khan (PW-1). We cannot read part of the statement of complainant Ismail Khan para 3 and part of the statement of Hoshiyar Khan (PW-6) para 9 in order to infer that FIR is ante-time and ante-dated. Secondly, firmly in para 3 complainant is saying that he went to police Station to lodge the report which is Ex.P-1 and from the police Station he and the deceased were sent to Primary Health Center, Gormi, and therefore, it can be inferred that the deceased, who was seriously injured at that time, was carried by the complainant to the police Station, and therefore, we have no scintilla of doubt in holding that FIR is not ante-time and ante-dated. ( 22. ) The testimony of complainant has been corroborated by the evidence of Siddar Khan (PW-2), Hoshiyar Khan (PW-6) and Sukhe Khan (PW-8). However, on bare perusal of the testimony of complainant Ismail Khan (PW-1), we find that this witness was throughout present when the incident took place. But, he is not at all saying about any of the role of appellant Allah Khan in causing injuries to the deceased, although his evidence is that when he came to intervene and to rescue his father, this appellant caused injuries by Dhariya to him. This statement was made by this witness in examination-in-chief that appellant No.4- Allah Khan did not cause any injury to the deceased and this witness was not declared hostile and if that would be the position, according to us, the prosecution is bound to accept the evidence of this witness which would mean that appellant-Allah Khan did not take part in the commission of the offence so far as causing injuries to the deceased is concerned. In this context, we may profitably place reliance on two decisions of Supreme Court they are; Raja Ram v. State of Rajasthan, 2005 SCC (Cri) 1050 and Mukhtiar Ahmed Ansari v. State (NCT of Delhi), 2005 SCC (Cri.) 1037. In Raja Ram (supra), in para 9 the Supreme Court has held as under:- "9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. In Raja Ram (supra), in para 9 the Supreme Court has held as under:- "9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to heard (sic declare) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8s testimony can be sidelined." ( 23. ) Looking to the evidence placed on record, we are of the view that although this appellant No.4-Allah Khan came to the spot carrying Dhariya with him, but there is no evidence that he shared any common intention with other appellants to cause death of the deceased. There is no iota of evidence that this witness even provoked or exhorted other appellants to kill the deceased, and therefore, according to us, the role assigned to this appellant would not come within the purview of Section 34 of IPC, and hence we extend our benefit of doubt to him for the charge under Section 302/34 of IPC. ( 24. ) However, looking to the role assigned to the other appellants, namely Siddar Khan, Ashraf Khan and Nanhe Khan, we find that they have caused brutal Dhariya blows to the deceased, as a result of which, he had died. The injuries sustained by the deceased we have already quoted hereinabove. The deceased had died not only on account of head injury, but also on account of excessive haemorrhage from all the wounds. The injuries sustained by the deceased we have already quoted hereinabove. The deceased had died not only on account of head injury, but also on account of excessive haemorrhage from all the wounds. We do not find any substance in the submission of learned counsel for the appellants that since the evidence of prosecution witnesses is contrary to each other that which of the appellant caused injury on which particular part of the body of the deceased, they are entitled for the benefit of doubt, because it was not possible for the witnesses to state about the incident in the same manner as "action reply" of a cricket match. It has come in the testimony of all the eye-witnesses that these three appellants, namely Siddar Khan, Ashraf Khan and Nanhe Khan, caused injuries by Dhariya to the deceased, and therefore, according to us, they have been rightly convicted under Section 302/34 of IPC. ( 25. ) So far as the plea of alibi is concerned, we also do not find any substance in it for the simple reason that on bare perusal of the testimony of Kazi Sirajuddin (DW-3), we find that Nikah register, which was brought by him, was having several several pages in the form of carbon copies. It is also borne out from the testimony of this witness that original copy is given to the family of bride and groom and a carbon copy is kept in the register. But, the relevant entry, which is Ex.D-5, we find that it has been made by a pen and is not a carbon copy, and therefore, it raises a heavy doubt about the authenticity and the hallmark of this document (Ex.D-5) in which the name of appellant No.1 Siddar Khan has been mentioned as Vakeel. The matter would have been different if the original Nikahnama would have been summoned from the family of bride and the groom and it would have been filed alongwith the copy of the document Ex.D-5, but this has not been done so. Hence, according to us, learned Trial Court rightly did not place reliance on the plea of alibi. ( 26. Hence, according to us, learned Trial Court rightly did not place reliance on the plea of alibi. ( 26. ) So far as the weapon part is concerned, according to us, on bare perusal of the testimony of autopsy surgeon (PW-9) para 8, 9 and 10, it is as clear like a noon day that weapon which was seized could cause the injuries sustained by the deceased. In the decision of State of Rajasthan v. Dhool Singh, AIR 2004 SC 1264 the sword was not seized, but the Apex Court convicted the accused under Section 302 of IPC. ( 27. ) Similarly, we do not find any merit in the contention of learned counsel for the appellants that there was no motive on the part of the appellants to cause death of the deceased because earlier the enmity was with complainant Ismail Khan only. It is well settled in law that motive part is totally insignificant if the case of prosecution rests on direct evidence. Since there is overwhelming direct evidence on record, according to us, this argument cannot be accepted. True there is some enmity between the complainant Ismail Khan (PW-1) and the appellants, but looking to his unimpeachable evidence which is corroborated by the evidence of other eye-witnesses and also medical evidence, it cannot be said that they have been falsely roped and merely because as per the defence the deceased has caused murder of one Guddi Bai, the appellants have been falsely implicated. ( 28. ) Now coming to the role assigned to appellant Allah Khan, we find that since this appellant caused single injury of Dhariya to the complainant, which has also been proved by the testimony of MLC Dr. V.C.Jain (PW-4) and his MLC report (Ex.P-19), according to us, he has committed the offence under Section 324 of IPC. However, there is no iota of evidence that all other appellants shared common intention with this appellant Allah Khan to cause injury to complainant, and therefore, according to us learned Trial Court has wrongly convicted appellants Siddar Khan, Ashraf Khan and Nanhe Khan under Section 324/34 of IPC. Their conviction under this Section is hereby set aside and the conviction of appellant No.4-Allah Khan is altered from Section 324/34 to 324 of IPC. The learned Trial Court has awarded one year R.I. to appellant No.4-Allah Khan which he has already suffered. ( 29. Their conviction under this Section is hereby set aside and the conviction of appellant No.4-Allah Khan is altered from Section 324/34 to 324 of IPC. The learned Trial Court has awarded one year R.I. to appellant No.4-Allah Khan which he has already suffered. ( 29. ) In the result, the appeal succeeds in part. The judgment of conviction and order of sentence convicting appellants Siddar Khan, Ashraf Khan and Nanhe Khan under Section 302/34 of IPC is hereby affirmed and they are hereby directed to serve the sentence as directed by learned Trial Court. However, their conviction under Section 324/34 of IPC is hereby set aside and they are acquitted from this offence. Appellant No.4-Allah Khan is acquitted from the offence punishable under Section 302/34 of IPC and his conviction under Section 324/34 is altered to Section 324 of IPC. Appellant-Allah Khan is on bail, his bail bonds are discharged. ( 30. ) Appellant No.1-Siddar Khan is on bail, his bail bonds shall stand cancelled after he offers his surrender before learned Trial Court on or before 27th December, 2010, failing which learned Trial Court shall issue perpetual arrest warrant against this appellant and also take action against his surety. After the surrender of appellant No.1, he shall be sent to jail to serve out remaining part of his jail sentence and his bail bonds thereafter shall stand cancelled. Learned Trial Court is further directed to intimate the Registry of this Court about the factum of sending appellant No.1 to jail. The Registry is hereby directed to send the record posthaste so as to reach learned Trial Court on or before 1st December, 2010 and the original bail bonds of appellant No.1 be also sent to learned Trial Court and a photocopy thereof be retained in this file.