JUDGMENT RAKESH SAKSENA, J. (1) Appellants have filed this appeal against the judgment dated 14-11 -2005, passed by First Additional Sessions Judge,Raisen, in Sessions Trial No. 132/2000, convicting the appellants under Sections 148, 324/149, 323/149, 326/149 and 302/149 of the Indian Penal Code and sentencing them to rigorous imprisonment for one year with fine of Rs.200/-, rigorous imprisonment for 2 years with fine of Rs.200, rigorous imprisonment for one year, rigorous imprisonment for 3 years with fine of Rs.200/- and imprisonment for life with fine of Rs.500/-, on each count respectively. (2) The prosecution story is that on 20-3-2000, at about 9.00 o'clock in the morning, complainant Raja and his brothers viz. Gopal, Guddu alias Raghuveer,Damodar and Yuddhaveer were playing deck in front of the house of Umrao Singh. It was the day of Holi festival. Accused Santosh and Rameshwar passed from there and dashed their bicycle with the deck. When Gopal remonstrate with Santosh, they hurled filthy abuses to him and accused Bhagwat Singh, Hakam Singh, Raghav Singh, Parwat Singh, Rajesh Singh and Pappu alias Ramesh of their family came there armed with lathis and farsa. Bhagwat Singh exhorted others to kill them because they were playing obscene songs. All the accused persons then started assaulting Raja and his family members. Accused Raghav Singh,Hakam Singh, Rameshwar and Rajesh Singh assaulted Gopal with lathis. Bhagwat Singh assaulted Keshri Singh with a farsa and Santosh and Hakam Singh assaulted Keshri Singh with lathis. Parwat Singh and Ramesh assaulted him (complainant) by lathis and Santosh assaulted Yuddhaveer Singh by lathi. As a result of injuries, Gopal fell down unconscious. Complainant, along with Gopal Singh, Keshri Singh, Yuddhaveer Singh, Chandan Singh and Umrao Singh, went to Police Station Badi and lodged F. I. R. (Ex. P/1) at 11.30 a.m. Injured persons were sent for treatment and medical examination to Primary Health Centre,Badi. Since the condition of injured Gopal was serious, he was referred to Hamidiya Hospital,Bhopal, for further treatment and investigation. During treatment, on 22-3-2000, at about 2.00 p.m., Gopal died. The dead body of Gopal was sent for postmortem examination. After requisite investigation, charge sheet was filed before the Court. Accused Rameshwar son of Bhagwat Singh was found to be under 18 years of age, therefore, his case was referred to Juvenile Court. During treatment, on 22-3-2000, at about 2.00 p.m., Gopal died. The dead body of Gopal was sent for postmortem examination. After requisite investigation, charge sheet was filed before the Court. Accused Rameshwar son of Bhagwat Singh was found to be under 18 years of age, therefore, his case was referred to Juvenile Court. (3) Trial Court framed charges against the accused persons under Sections 148, 323/149, 324/149, 326/149, 307/149 and 302/149 of the Indian Penal Code. (4) All the accused persons pleaded false implication. According to them, they were falsely implicated. They had defended themselves, as the members of the complainant party had entered the house of accused Bhagwat Singh and had assaulted him, Sarju Bai, Santosh and Rameshwar. They had also received injuries and lodged a report with the police. Umrao Singh, Yuddhaveer Singh, Rajendra, Keshri Singh and Chandan Singh were prosecuted in the counter case and convicted under Sections 148, 324/149, 324/149 and 326/149 of the Indian Penal Code. Learned Additional Sessions Judge, after trial and upon appreciation of evidence adduced in the case, convicted and sentenced the accused/appellants as mentioned above, hence, this appeal. (5) We heard the learned counsel for the parties and perused the evidence on record. (6) It was not disputed that deceased Gopal died of head injury. It was also reflected from the evidence of Dr. Bhagwandas Yadav (PW-17),who examined his injuries and Dr. C. S. Jain (PW-18),who conducted the postmortem examination of his dead body. According to Dr. Bhagwandas Yadav (FW-17), on 20th March, 2000 Gopal was brought to him at Primary Health Centre, Badi. He found following injuries on his body: (1) Haematoma of 6 x 4 cms. about 7 cms. above the right ear on temporo-parietal region of the skull. (2) Haematoma 8x6 cms. about 8 cms. above left ear on left side of the scalp on temporo parietal region. (3) Abrasion with contusion 4x3 cms. on right side of chest. All the above injuries were caused by hard and blunt object. Since injuries No. 1 and 2 were head injuries, Gopal was referred for X-ray examination and for further treatment to Hamidiya Hospital,Bhopal. (7) According to ASI S. S. Jadon (PW-8), on 22-3-2000, he received information from Hamidiya Hospital that Gopal Singh had died. He, therefore, went to hospital and conducted inquest (Ex. P/3) and sent the dead body for postmortem examination. (8) Dr. (7) According to ASI S. S. Jadon (PW-8), on 22-3-2000, he received information from Hamidiya Hospital that Gopal Singh had died. He, therefore, went to hospital and conducted inquest (Ex. P/3) and sent the dead body for postmortem examination. (8) Dr. C. S. Jain (PW-18) conducted postmortem examination of the body of Gopal on the same day and found a 12 cms. long stitched wound on his scalp. He found a depressed fracture on the right parietal region of skull. A piece of bone was depressed inside the skull and coronal suture of the skull was also loosened. There was a fracture of left parietal bone also. There was sub dural and sub arachnoid haemorrhage in the brain. Cause of his death was head injury. In his opinion, injuries were caused by hard and blunt object and were sufficient in ordinary course of nature to cause death of the deceased. It was thus clearly evident that deceased Gopal died of head injury. Dr. Bhagwandas Yadav (PW-17) also examined the injuries of Keshri Singh, Raja and Yuddhaveer. Keshri Singh had sustained following injuries : (1) Incised wound 7x2 cms. on right forearm. (2) Contusion with swelling 14 x 2 cms. on left elbow. (3) Contusion 4x3 cms. on left side of back on scapula region. (4) Contusion 8x4 cms. on left scapula region. First injury was caused by hard and sharp weapon and rest of the injuries were caused by hard and blunt object. He was referred for x-ray examination for injuries No. 1 and 2. (9) Dr. Yadav found following injuries on the body of Raja : (1) Contusion 16 x 2.5 cms. on left arm. (2) Incised wound 4 x 2.5 x skin deep on left thigh and (3) Abrasion 2 x 2.5 cm. at wrist joint of right forearm. All the injuries were caused by hard and blunt object and were simple in nature. (10) Yuddhaveer had sustained following injuries : (1) Contusion 10 x 6 cm. on left arm and (2) Abrasion l x l c.m.on left hand's index finger. Both the injuries were caused by hard and blunt object and were simple in nature. Learned counsel for the accused/appellants submitted that the trial Court gravely erred in convicting appellants by placing implicit reliance on the evidence of alleged eyewitnesses viz. on left arm and (2) Abrasion l x l c.m.on left hand's index finger. Both the injuries were caused by hard and blunt object and were simple in nature. Learned counsel for the accused/appellants submitted that the trial Court gravely erred in convicting appellants by placing implicit reliance on the evidence of alleged eyewitnesses viz. Raja (PW-1),Keshri Singh (PW-2),Yuddhaveer Singh (PW-3),Umrao Singh (PW-4) and Chandan Singh (FW-9), as all of them were close relatives of the deceased. They had suppressed the genesis of the occurrence and had not explained the injuries received by the accused persons in the same incident. Prosecution witnesses had, in fact, entered the house of accused Bhagwat and caused injuries to Bhagwat, Sarjuabai, Santosh, Rameshwar and Ramwati Bai. Learned counsel for the State, on the other hand, justified and supported the conviction of the appellants. (11) We have gone through the entire evidence on record. (12) RAJA (PW-1) deposed that on the occasion of Holi festival when they were playing deck near a heap of rubbish placed near the house of Umrao Singh, accused Santosh and Radheyshyam came there on a bicycle and dashed it with their deck. When Gopal remonstrated with them, Santosh and Radheyshyam abused him and accused Bhagwat, Hakam Singh, Parwat Singh, Raghav Singh, Ramesh and Rajesh, came there armed with lathis and farsa from the nearby houses and on the exhortation of Bhagwant Singh, started beating Gopal. Santosh inflicted lathi blow on the head of Gopal, as a result of which he fell down unconscious. When Keshri Singh tried to intervene, Bhagwat Singh assaulted him with farsa and Raghav and Rajesh assaulted him with lathis. Ramesh and Parwat Singh assaulted him (RAJA) and Santosh assaulted to Yuddhaveer Singh. His father Chandan Singh and Umrao Singh also reached at the spot. Learned counsel for the accused/appellants submitted that the fact that Santosh inflicted lathi blow on the head of Gopal was an improvement. Raja (PW-1) did not mention this fact in the first information report (Ex. P/l). He was confronted with the first information report (Ex. P/l) as well as from his police statement (Ex. D/l). It is true that Raja (PW-1) improved upon his earlier version in saying that Santosh inflicted Lathi blow on the head of Gopal, but it was categorically deposed by Keshri Singh (PW-2) and Yuddhaveer Singh (PW-3) that Santosh dealt Lathi blow on the head of Gopal. P/l) as well as from his police statement (Ex. D/l). It is true that Raja (PW-1) improved upon his earlier version in saying that Santosh inflicted Lathi blow on the head of Gopal, but it was categorically deposed by Keshri Singh (PW-2) and Yuddhaveer Singh (PW-3) that Santosh dealt Lathi blow on the head of Gopal. Therefore, the omission made by Raja (PW-1) does not affect the veracity of the prosecution case that Santosh caused injury on the head of the deceased. This fact, though, was also deposed by Umrao Singh (PW-4) and Chandan Singh (PW-9), but it appears suspicious that they reached at the spot in the beginning of the quarrel in view of their admission that they were eating Guja-Papadiya in the house of Umrao Singh (PW-4). Chandan Singh (PW-9) admitted that he was sitting inside the house of Umrao Singh when there occurred quarrel and it took 2-4 minutes for him and Umrao Singh to reach the place of occurrence. The evidence of Raja (PW-1) finds corroboration from the evidence of Keshri Singh (PW-2), Yuddhaveer Singh (PW-3), Umrao Singh (PW-4) and Chandan Singh (PW-9) that accused Parwat Singh, Ramesh, Santosh, Rajesh Singh, Bhagwat Singh, Hakam Singh and Raghav Singh had come at the spot and that Bhagwat Singh and Raghav Singh were armed with farsa and others had lathis and they had assaulted to Keshri Singh, Raja and Yuddhaveer Singh. This fact is further reinforced from the evidence of Dr. Bhagwandas Yadav (PW-17), who found injuries on their bodies and that the incised injury found on the hand of Keshri Singh was grievous in nature. Dr. Dinesh Kodhiya (PW-12), who performed X-ray examination of Keshri Singh, found that there was a fracture of olecranon process of ulna bone of his hand. (13) Now the question before this Court is whether accused persons formed an unlawful assembly with a common object of causing death of Gopal. (14) Learned counsel for the appellants argued that the prosecution witnesses suppressed the genesis of the incident and failed to explain injuries found on the bodies of accused persons. Their evidence was inconsistent with the medical evidence as only two injuries were found on the head of deceased, whereas according to prosecution witnesses all the accused had assaulted to deceased. He submitted that all the prosecution witnesses were relatives, therefore, no implicit reliance could be placed on their evidence. Their evidence was inconsistent with the medical evidence as only two injuries were found on the head of deceased, whereas according to prosecution witnesses all the accused had assaulted to deceased. He submitted that all the prosecution witnesses were relatives, therefore, no implicit reliance could be placed on their evidence. It is true that the eye-witnesses viz. Raja (PW-1), Keshri Singh (PW-2), Yuddhaveer Singh (PW-3), Umrao Singh (PW-4), Chandan Singh (PW-9) and Rajendra (PW-10) are close relatives, but merely on that count their entire testimony cannot be discarded. In such cases, the Court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible. (15) Investigating Officer Radheyshyam Singh Bhadoriya (PW-20) deposed that on a report lodged by accused persons a counter case under Section 307 of the Indian Penal Code was registered against the members of complainant party, who were prosecution witnesses in the instant case. Accused Raghav Singh and Bhagwat Singh also suffered injuries in the occurrence and remained admitted in the Hamidiya Hospital, Bhopal. During the investigation of the counter case, he seized blood stained soil from the house of Sarjubai, mother-in-law of accused Bhagwat Singh. Bhagwat Singh and his mother-in-law Sarjubai were residing in the same house. He filed charge-sheet in the Court against Umrao Singh, Damodar, Yuddhaveer Singh, Raja, Raghuveer, Rajendra, Keshri Singh and Chandan Singh, which was registered as Sessions Trial No. 133/2000. (16) Learned counsel for the appellants pointed out that the aforesaid sessions trial ended in conviction of the aforesaid persons under Sections 148, 323/149, 324/149 and 326/149 of the Indian Penal Code. He placed the copy of that judgment on record. Raja (PW-1), though admitted that a counter case in respect of the present incident was pending against them, but he denied that he caused any injury to accused Raghav. He, however, admitted that immediately after the cognizance Raghav and Parwat Singh had remained admitted in Hamidiya Hospital, Bhopal, for about 20 days. He categorically denied that he, Chandan Singh, Keshri Singh, Rajendra, Raghuveer and others entered the house of Bhagwat Singh and assaulted Raghav Singh, Bhagwat Singh, Santosh, Ramwatibai and Sarju Bai. Keshri Singh (PW-2) deposed that he did not know that when the quarrel began because he reached there after some time. He even did not know the cause on which the fight erupted and who initiated it. Keshri Singh (PW-2) deposed that he did not know that when the quarrel began because he reached there after some time. He even did not know the cause on which the fight erupted and who initiated it. He came out of his house after hearing the noise of 'Maar-peet' and exchange of abuses. He also admitted that on the report lodged by Bhagwat Singh a case under Section 307 of the Indian Penal Code was registered against him and other prosecution witnesses and a trial in that regard was pending in the Court. He categorically denied that he or any of the prosecution witness assaulted or caused injuries to Bhagwat Singh, Raghav Singh, Santosh, Rameshwar, Ramwatibai and Sarju Bai or that he saw any injury on their bodies. He too, however, admitted that Raghav Singh and Bhagwat Singh were hospitalized about 15-20 days. Similar admissions about the registration of counter case were made by Yuddhaveer Singh, Umrao Singh, Chandan Singh and Rajendra. (17) On perusal of the spot map (Ex. D/3), prepared by the Investigating Officer (PW-20), it is apparent that the house of accused Bhagwat Singh and Sarjubai is situated in front of the house of Umrao Singh (PW-4) and the place at which the incident of assault on deceased is said to have taken place is near the house of Umrao Singh. Dr. Bhagwandas Yadav (PW-17) proved the injuries sustained by Bhagwat Singh, Raghav Singh, Sarju Bai, Santosh, Ramwati Bai and Rameshwar. Three injuries were found on the body of Bhagwat Singh. ONe injury was an incised wound 6 x 5 cms. on his left hand, second injury was also an incised wound on right hip and third injury was an abrasion on the scalp. His injury report is Ex.D/5 Dr. Yadav had also examined the injuries of Raghav Singh, Sarju Bai, Santosh, Ramwati Bai and Rameshwar and described their injuries in their injury reports (Ex.D/6, D/7,D/8, D/9 and Ex. D/10 respectively). Thus, it is evident that in the course of same incident accused persons also suffered injuries, these injuries were not only simple or superficial injuries and these injuries were not explained by the prosecution witnesses. In these circumstances, it is evident that neither prosecution witnesses nor accused came forward with an unvarnished truth. Prosecution witnesses stated that all the accused persons assaulted deceased with 1athies, but this did not find support from the evidence of Dr. In these circumstances, it is evident that neither prosecution witnesses nor accused came forward with an unvarnished truth. Prosecution witnesses stated that all the accused persons assaulted deceased with 1athies, but this did not find support from the evidence of Dr. Bhagwandas Yadav (PW-17) who found only two injuries on the head and a simple abrasion on the chest of deceased. Specific evidence of causing head injuries to deceased is against accused Santosh only. Thus, the general statements made by the prosecution witnesses that all the accused persons assaulted Gopal do not inspire confidence. Even otherwise, according to prosecution evidence, the incident began when Santosh and Radheyshyam dashed their bicycle with the deck, which was being played by deceased and Raja (PW-1). It seems that other prosecution witnesses as well as other accused persons reached the spot a little later and launched attack and counter attack on each other. In these circumstances, in our opinion, it cannot be inferred that the common object of all the accused persons was to cause death of Gopal. Therefore, in our opinion, they cannot be held liable for causing death of Gopal with the aid of Section 149 of the Indian Penal Code. However, they must be held to have knowledge that an offence of causing hurt and grievous hurt was likely to be committed. Thus, the conviction of accused/appellants viz. Parwat Singh, Pappu alias Ramesh, Rajesh, Bhagwat Singh, Hakam Singh and Raghav Singh under Section 302/149 of the Indian Penal Code deserved to be set aside. (18) Raja (PW-1), Keshri Singh (PW-2) and Umrao Singh (PW-4) admitted that there was no past dispute or enmity between them and the accused persons, but the incident occurred on the occasion of Holi festival when accused Santosh and Radheyshyam dashed their bicycle with the deck, which was being played by them at an open place near the house of Umrao Singh (PW-4). The incident of assault on Gopal was the result of a sudden hot wordy quarrel and exchange of abuses between them. In these circumstances, in our opinion, case of accused/appellant Santosh would squarely fall under Exception 4 of Section 300 of the Indian Penal Code and not under Section 302 of the Indian Penal Code. The incident of assault on Gopal was the result of a sudden hot wordy quarrel and exchange of abuses between them. In these circumstances, in our opinion, case of accused/appellant Santosh would squarely fall under Exception 4 of Section 300 of the Indian Penal Code and not under Section 302 of the Indian Penal Code. Since two injuries were found on the head of deceased, which resulted in breaking of parietal bones of both the sides, loosening of coronal suture and breaking of cranial fossa of his skull, it can reasonably be inferred that accused Santosh assaulted the deceased with intention of causing his death or causing such bodily injury to him as was likely to cause his death, making him liable under Section 304-1 of the Indian Penal Code. In view of the foregoing discussion, we are of the considered opinion that the trial Court erred in convicting the accused/appellants Parwat Singh, Pappu alias Ramesh, Rajesh, Bhagwat Singh and Raghav Singh under Section 302/149 of the Indian Penal Code. Therefore, their conviction and sentence awarded under Section 302/149 of the Indian Penal Code is set aside. The conviction of accused/appellant Santosh under Section 302/149 of the Indian Penal Code is modified and he is convicted under Section 304-I of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years. Conviction and sentence of the appellants, as awarded by the Court below under Sections 148, 324/149 and 323/149 of the Indian Penal Code, are affirmed. Conviction of all the appellants under Section 326/149 of the Indian Penal Code is also affirmed. However, the sentence of three years rigorous imprisonment on that count is reduced to the sentence of two years rigorous imprisonment. (19) The appeal is allowed in part to the extent indicated above. Order accordingly.