JUDGMENT R.B. Misra, J. The Criminal Appeal No.382 of 2005 has been preferred by Vikram Singh, appellant-convict under Section 374 (II) of Cr.P.C. against the judgment dated 26.7.2005 passed by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No.88-K/VII/03/ Sessions Trial No.77/2003, whereby the appellant-convict has been sentenced to undergo simple imprisonment for life and to pay fine of Rs. 20,000/- for the offence under Section 302 of IPC and in default of payment of fine he was to further undergo simple imprisonment for a period of six months in reference to FIR No.36/2001, dated 25.1.2001, lodged for the offences under Sections 147, 148, 149, 323, 307 and 506 IPC, however, the appellant-convict has been acquitted for the remaining charges for the offences under Sections 147, 148, 149 and 323 of IPC. 2. The criminal appeal No.383 of 2005 has been preferred by Kashmir Singh, appellant-convict under Section 374 (II) of Cr.P.C. against the judgment dated 26.7.2005 passed by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No.88-K/VII/03/Sessions Trial No.77 of 2003, convicting the appellant and sentencing him to undergo simple imprisonment for six months and to pay fine of Rs.1000/- and in default of payment of fine he was to further undergo simple imprisonment for the period of one month, for the offence punishable under Section 323 IPC, however, learned Additional Sessions Judge has acquitted him for the remaining offence under Sections 147, 148 and 149 of IPC. 3. The criminal appeal No.384 of 2005 has been preferred by Vijay Kumar, appellant-convict under Section 374 (II) of Cr.P.C. against the judgment dated 26.7.2005 passed by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No.88-K/VII/03, Sessions Trial No.77 of 2003, convicting the appellant-convict and sentencing him to undergo simple imprisonment for the period of six months and to pay fine to the tune of Rs.1000/- for the offence punishable under Section 323 IPC and in default of payment of fine he was to further undergo simple imprisonment for one month. The appellant-convict was acquitted for the offence under Sections 147, 148, 149, 302, 307 and 506 of IPC. 4. The appellant-convict was acquitted for the offence under Sections 147, 148, 149, 302, 307 and 506 of IPC. 4. The criminal appeal No.385 of 2005 has been preferred by Hanumant Raj alias Sanju, appellant-convict under Section 374 (II) of Cr.P.C. against the judgment dated 26.7.2005 passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P., in Sessions Case No.88-K/VII/03, Sessions Trial No.77 of 2003, convicting the appellant-convict and sentencing him to undergo simple imprisonment for the period of six months and to pay fine to the tune of Rs.1000/- for the offence punishable under Section 323 of IPC and in default of payment of fine he was to undergo simple imprisonment for further period of one month. The appellant-convict was acquitted for the offences punishable under Sections 147, 148, 149, 302, 307 and 506 of IPC. 5. The criminal appeal No.480 of 2005 has been preferred by the State under Section 378(3) of the Code of Criminal Procedure against the judgment dated 26.7.2005, passed by Learned Additional Sessions Judge, Kangra at Dharamshala, in Sessions Case No.88-K.VII/03, Sessions Trial No.77/2003, for enhancement of sentence against all the convicts and for conviction against the other respondents in reference to FIR No.36 of 2001, dated 25.1.2001 for the offence punishable under Sections 147, 148, 149, 323, 307 and 506 IPC. 6. All the criminal appeals are emanating from the same incident and are attributable to the same FIR, as such all these appeals have been heard and adjudicated together. 7. The prosecution case, in brief, is that one Bhagwan Dass, a Sub Inspector of Police, while posted at Daroh, on persuasion by his brother-in-law, namely, Amit Kumar, attended a function, accompanying him in a Jeep up to his house at Massal. On 25.1.2001 at about 6:30 PM, victim / Bhagwan Dass when reached near his house, with Amit Kumar, while alighting from the jeep, was attacked by accused Fauja Ram and others, namely, Roshan Lal, Vikram Singh, Anil Kumar, Raj Kumar, Hanumant Raj and Vijay Kumar. Consequent upon, both suffered injuries and on their raising alarm, the wife of victim / Bhagwan Dass, namely, Sandhya Devi (deceased), who came to their rescue, was dragged from the spot towards the house of accused Vikram Singh by Champa Devi, Sumna Devi, Nisha Devi and Daya Devi. Consequent upon, both suffered injuries and on their raising alarm, the wife of victim / Bhagwan Dass, namely, Sandhya Devi (deceased), who came to their rescue, was dragged from the spot towards the house of accused Vikram Singh by Champa Devi, Sumna Devi, Nisha Devi and Daya Devi. Further, the prosecution case is that Vikram Singh armed with an Axe hit the head of Sandhya Devi (deceased) by axe blow, who, thereon suffered injuries on her head, whereas, other accused kept on beating the deceased with danda as well as stones. Stones were also thrown upon victim / Bhagwan Dass as well as on his brother-in-law Amit Kumar. Bhagwan Dass (PW-4) had made a telephonic complaint from his house at Police Station, Nagrota Bagwan and thereafter accompanied Amit Kumar in the jeep and while approaching to Nagrota Bagwan for lodging a report, on way came across police officials, who had proceeded to the spot. Bhagwan Dass along with Amit Kumar was taken to the hospital for medical aid, in the mean time, Sandhya Devi / (deceased) was also shifted to Hospital at Nagrota, despite having been provided medical aid, she breathed her last. Postmortem was conducted. Spot inspection was made by the police officials and Kulhari with which deceased was hit and chappal etc. were taken into possession on 30.1.2001. Three dandas and Belchas were also taken into possession. Hanumant @ Sanju had made a disclosure statement that he had hidden danda and belchas in the room, where some shutterings were lying. Since one of the victim injured had died, as such, case was converted into 302 IPC coupled with other penal provisions indicated above. All the accused persons were charged for the offences punishable under Sections 147, 148, 149 and 302 IPC, however, no separate charge was framed under Section 323 read with Section 34 IPC. 8. In order to prove its case prosecution examined as many as 17 prosecution witnesses, whereas, the convict-accused through their statements under Section 313 of Cr.P.C. denied the prosecution case and adduced three defence witnesses in support of their defence. 9. Accused Vikram was carrying Axe (Ex.P1), whereas, Hanumant was carrying Belcha, Vijay Kumar was carrying danda, Anil Kumar and Raj Kumar were carrying danda. 9. Accused Vikram was carrying Axe (Ex.P1), whereas, Hanumant was carrying Belcha, Vijay Kumar was carrying danda, Anil Kumar and Raj Kumar were carrying danda. The incident took place on 25.1.2001 at 6.45 P.M., as per statements of Bhagwan Dass (PW-4) made under Section 154 of the Cr.P.C. in that reference to Ex.PW-4/A, FIR was lodged on 26.1.2001, whereas, copy of the FIR was received by the Magistrate concerned on 27.1.2001 at 10.30 A.M. PW.1 Dr.Ruby Bhardwaj, examined Bhagwan Dass (PW-4), Amit Kumar (PW-5) and Sandhya Devi / (deceased) on 25.1.2001. After examination, injuries noticed and opinion given in respect of PW-4 are given as below:- (1) Reaches right eye with blood in the anterior orbital chamber. (2) 1cm x ¼ cm abrasion below right eye. (3) 1 cm ½ cm abrasion on the left index finger. Injuries No.2 and 3 were simple in nature and were caused by blunt weapon. These injuries were said to be possible with Lathi. 10. On examining of victim / Amit Kumar, alleged to have been beaten by Hanumant and 3-4 other people, the following injuries and opinion were recorded for Amit Kumar:- (1) Shaped wound incised wound of size 6cm x 3 cm x 1cm x ½ cm on the left side of the scalp in the parietal occipital region. (2) 1 cm x 1 cm and 1 cm x ½ cm and 1 cm x 1/2cm abrasion on the left knee. (3) 5 cm x 5cm reddish area near left shoulder on the upper back. (4) 18 cm x 5cm reddish area on the back (lower chest) left side. Injury No.1 was caused by sharp weapon. Injury No.1 was said to be caused by Axe. 11. On 25.1.2001, itself, Sandhya Devi/deceased i.e. the wife of Bhagwan Dass / victim, was medically examined. Following injuries were found on her person:- (1) Black eye left and swelling around the left eye reaching to left side of forehead. (2) 10cm x 1 ½ cm x 1 ½ cm incised wound on the left side of the scalp in the parietal region. (3) No other major injury detectable at present on her body. She was referred to R.P.G.I. Dharamshala after first aid. Injury No.1 was said to be caused by blunt weapon. Injury No. 2 by sharp weapon. (2) 10cm x 1 ½ cm x 1 ½ cm incised wound on the left side of the scalp in the parietal region. (3) No other major injury detectable at present on her body. She was referred to R.P.G.I. Dharamshala after first aid. Injury No.1 was said to be caused by blunt weapon. Injury No. 2 by sharp weapon. These injuries were said to be grievous in nature and second injury was fatal to life and injury No.1 was said to be possible by weapon Axe. In cross-examination, PW-1 (Dr.Ruby Bhardwaj) has stated that Amit had suffered injuries with Axe and history of case was given by Amit (victim) except one and forth, rest of the injuries could be caused by a fall. PW.1 also conducted postmortem of Sandhya Devi (deceased) on 28.1.2001 and opined that injury No.1 is incised but in the postmortem report it was described as lacerated wound, as such, PW.1 could not say that the postmortem report is more authentic report, however, PW.1 did not notice any injury on the outside and history of the case though given by PW-4, the husband of the deceased but narration of the weapon used was not disclosed. 12. Sh. Anup Chitkara, learned counsel for the convict / appellants has argued mainly following aspects and has submitted that in view of these anomalies, the prosecution case becomes doubtful. (i) Bhagwan Dass (PW-4), husband of deceased / Sandhya Devi, though stated to have allegedly received injuries, gave telephonic call to Police Post and intimated the police about the incident, however, such information has been withheld by the prosecution from the Court. (ii) The earlier version of PW-4/(Bhagwan Dass) recorded by the prosecution under Section 154 of the Code of Criminal Procedure (Ex. PW-4/A) was in contradiction to his statement made in the Court. It was improbable that the deceased/Sandhya Devi and Anjali (PW-6), both wife and daughter of PW-4 would sit on 25th January, 2001 after sunset in open, waiting for the arrival of PW-4. (iii) Accused Vikram Singh was attributed the role of inflicting axe blow on the head of Sandhya Devi /deceased, however, when history of assault was narrated to PW-1, then said axe blow was attributed to convict Hanumant. (iv) In view of opinion given by PW-1, injury No. 2 on the person of Sandhya Devi/deceased could have been caused by sharp edged weapon i.e. axe (Ex. (iv) In view of opinion given by PW-1, injury No. 2 on the person of Sandhya Devi/deceased could have been caused by sharp edged weapon i.e. axe (Ex. P1), however, said injury could have been caused by sharp or blunt side of axe or by stick side of the axe, cannot be ruled out, in view of the opinion of PW-3. Such contradiction makes the prosecution case doubtful. (v) Prosecution did not ascertain blood group of blood stains found on axe (EX. P1). The absence of blood of Sandhya Devi /deceased on the axe would have clinched the issue and, as such, adverse inference has to be drawn against the prosecution. (vi) It has come on record that the alleged incident took place between 6:30 to 6:45 P.M. on 25th January, 2001 and in view of the testimony of PW-4 (Bhagwan Dass), he identified the assailants by their voice, also as it was not dark. Whereas, on 25th February, 2001, the sun set at 5.30 P.M. and the moon had hardly any illumination, as such, it was not possible to identify the assailants, more so, when there was no light on the place of incident and nothing was indicated that there was any other source of light on the place of incident except the sun light, as such, it is highly unsafe to rely on the identification of fourteen persons through their voices and on such basis to assign specific acts on them. (vii) As per testimonies of PW-4, PW-5, PW-6 and PW-7, the stones throwing and assault lasted for around fifteen minutes, however, if fourteen persons were giving beatings to three persons for fifteen minutes, then all the victims would have received a large number of injuries like bruises, contusions, scratches, abrasions etc., but when all these three persons were medically examined within two hours of the incident, the doctor found just three simple injuries each on the persons of PW-4/(Bhagwan Dass) and PW-5/(Amit Kumar). Similarly, on the person of deceased, except injury No. 2, two other simple injuries were found. It shows that such large number of persons had not participated in the assault. Similarly, on the person of deceased, except injury No. 2, two other simple injuries were found. It shows that such large number of persons had not participated in the assault. (viii) The defence version is more probable than the case set up by the prosecution in view of the fact that the incident took place in the compound of accused Vikram Singh, which is in reference to the spot map prepared by PW-17/(Surinder Singh) who stated that he inspected the spot and prepare the spot map Ex. PW-17/B and by virtue of recovery of axe, shoes and nose pin from the compound of house of accused Vikram Singh, it appears that the occurrence took place in the compound of house of accused Vikram Singh, because the nose pin would fall only in a struggle. It shows that the complainant party was the aggressors and the accused acted in the right of private defence. (ix) The prosecution case is vitiated in view of the fact that the delay of more than 36 hours is there in sending the copy of FIR under Section 157 of the Code of Criminal Procedure to learned Judicial Magistrate, as such, possibility cannot be ruled out that statement under Section 154 of the Code of Criminal Procedure and FIR were recorded in the intervening night of 26/27th January, 2001 or in the early morning hours of 27th January, 2001. (x) Because of prior enmity between the complainant and accused the possibility of complainant falsely implicating the accused cannot be ruled out, as in view of the statement of PW-4, the accused had given beatings to his brother one month before the present incident, for which separate proceedings are pending and in view of the testimony of PW-4 the relation between the complainant and Roshan Lal’s family were not good. Further in view of the statement of PW-4, in context of raising objection regarding extracting stones, the accused had developed grudge against the complainant. (xi) The convicts/appellants, Hanumant and Vijay were convicted under Section 323 of the Indian Penal Code and appellant Kashmir was convicted under Section 323/34 of the Indian Penal Code, whereas, they were not charged for the commission of such offences. 13. On analysis of prosecution witnesses and material on record, we notice that the FIR was registered at the instance of PW-4 (Bhagwan Dass) on his statement Ex. PW-4/A. Perusal of Ex. 13. On analysis of prosecution witnesses and material on record, we notice that the FIR was registered at the instance of PW-4 (Bhagwan Dass) on his statement Ex. PW-4/A. Perusal of Ex. PW-4/A indicates that there appear some inconsistencies regarding the place from where victim/Sandhya Devi (deceased) came on the spot. As per statement Ex. PW-4/A, she came from the house, whereas, as per statement of PW-4, she was sitting on the wall along with her daughter and from there she came to rescue PW-4. However, she was dragged from the spot by accused Champa, Sushma, Nisha, Daya and accused Vikram gave hit of axe on her head. As per statement of PW-4, his wife/victim was dragged from the place where he was being beaten by the accused and victim was hit by axe (Ex. P-1) and in addition to that stones were also pelted upon her and danda blows were also given by accused, thereby she suffered injuries. PW-4 further stated that victim/deceased Sandhya Devi was dragged from the spot of incident to 4-5 feet. PW-4, however, nowhere has stated that on observing that his wife was being hit by axe, he did try to rescue her, nor her daughter Anjana, who reached the spot, did something to rescue her. As per statement of PW-4, he as well as Amit Kumar was made to run by the accused from the spot, as they were pelting stones and giving beatings. As per deposition of PW-4 since he was in possession of Jeep, therefore, he approached to the police station to lodge FIR. 14. PW-5 (Amit Kumar), brother of the victim/deceased, an injured witness, stated to have witnessed the incident on the spot. As stated by PW-5 that when he, along with PW-4, reached on the spot in Jeep at about 6.30 P.M., accused Hanumant inflicted a danda blow on the head of PW-4 (Bhagwan Dass), while he was alighting from the jeep. At the same time, accused Kashmiru caught hold of PW-5 and accused Vijay Kumar gave a Belcha blow, thereby he also suffered injuries and blood started oozing out. Victim/Sandhya Devi and Anjani came to the spot and tried to save them. The lady accused dragged victim/deceased to some distance and accused Vikram inflicted blow with axe on the head of deceased, on which she cried. Victim/Sandhya Devi and Anjani came to the spot and tried to save them. The lady accused dragged victim/deceased to some distance and accused Vikram inflicted blow with axe on the head of deceased, on which she cried. Thereafter, accused Vikram and other accused lifted the deceased and dragged her to their courtyard. After recording the statement of PW-4, the police brought the victim/deceased to the hospital, where PW-4, PW-5 and victim/deceased were medically examined. PW-5 along with PW-4 and Devinder Kumar accompanied the victim/deceased to Dharamshala hospital, where she expired. PW-5 has deposed that at the time of incident, Fauja, Roshan Lal, Hanumant, Ravi, Vijay and Kashmiru were present on the spot in addition to other accused, but he did not know their names. PW-5 has further stated that his statement was recorded by the police on the next day, wherein he deposed that after he suffered head injury, he is not aware as to what happened on the spot. PW-5 has further stated that accused present at the time of incident started giving danda blows and throwing stones, which continued for 15-20 minutes and only axe blow was given to victim/deceased/Sandhya Devi and no stone blow was given to her after she was dragged. When PW-5 was confronted with his statement made to the police, it was found that he had stated that the deceased was lifted from the spot, whereas on oath he has deposed that she was dragged, however, as per version of PW-5, he suffered no stone injury. 15. As per testimony of PW-4, in addition to axe blow, deceased was administered danda blows and stones were also hit upon her, whereas, as per statement of PW-5, only axe blow was given and no danda/stone blows was given to her. We also notice that PW-4 has no where deposed that Anjana (PW-6) was also hit with any object, whereas, as per statement of PW-4, his daughter Anjana also came there to rescue her mother, i.e. deceased/Sandhya Devi. We also notice that PW-4 has no where deposed that Anjana (PW-6) was also hit with any object, whereas, as per statement of PW-4, his daughter Anjana also came there to rescue her mother, i.e. deceased/Sandhya Devi. Surprisingly, no injury was found on the person of Anjana (Pw-6), who herself deposed that on the day of occurrence on receiving telephonic call from her father (PW-4) from Nagrota Bagwan, she and her mother (deceased) went to the road and sat on the retaining wall and after some time when her father (PW-4) along with Amit Kumar (PW-5) reached on the spot in jeep, the accused Roshan Lal, Vikram, Ravi, Billu, Hanumant, Fauja, Vijay and Kashmir started pelting stones and Hanumant inflicted danda blow on the eye of her father (PW-4), Kashmir caught hold of her uncle (PW-5) and accused Vijay gave hit of a belcha on his head. She further deposed that when her mother /(deceased) intervened to save PW-4 and PW-5, at this the accused Champa, Nisha and Daya dragged her to the road while others were pelting stones and accused Vikram hit her with axe on her head from which blood started oozing. PW-6 stated that she ran away from the spot, whereas PW-4 and PW-5 and her mother went to Nagrota Bagwan in a jeep. As stated by PW-6 that occurrence took place about 6.30-6.40 P.M. and continued for 15-20 minutes and she had not suffered any injuries. Further stated by PW-6 that accused Vikram had hit her mother on the head with axe and four steps away from the road some blood fell and blood also fell on the way, when she was taken from the place of occurrence to the courtyard. PW-6 has further deposed that she did not go to the house or courtyard of the accused, where her mother was taken, but she remained watching from some distance. As per testimony of PW-6, she does not remember that danda blows or stones were pelted in the courtyard, whereas, Devinder Kumar also went to rescue her mother (deceased), at that time, she was all alone, but she does not remember that any lathi or stone blows were given to Devinder Kumar. 16. As per testimony of PW-6, she does not remember that danda blows or stones were pelted in the courtyard, whereas, Devinder Kumar also went to rescue her mother (deceased), at that time, she was all alone, but she does not remember that any lathi or stone blows were given to Devinder Kumar. 16. We notice one peculiar aspect that PW-6 (Anjana) and PW-7 /(Devinder Kumar) had also participated in the rescue operation, but they did not suffer any injury on their person, but such aspect does not make the prosecution case fatal. We also notice one minor contradiction in the testimony of PW-6 when she deposed that her mother also accompanied Pw-4 to Nagrota Bagwan in Jeep, whereas, as per statement of PW-4 and PW-5, deceased Sandhya Devi was shifted from the spot to Nagrota Bagwan by police and PW-4 and PW-5 had already proceeded to Nagrota Bagwan. As per testimonies of PW-4, PW-5 and PW-6, the deceased was not taken in the jeep by PW-4 and PW-5, but she was taken to Hospital at Nagrota Bagwan by police after recording statement of PW-4 under Section 154 of the Code of Criminal Procedure (Ex. PW-4/A), such minor contradiction also does not make the prosecution case fatal. In the present case, we also see that there were large number of assailants as such meticulous exactitude of individual acts of accused was not expected from eyewitnesses in view of the decision of Hon’ble Supreme Court in Ramachandran versus State of Kerala, (2011) 9 SCC 257 . Minor contradictions or inconsistencies, as noted above, shall be irrelevant as the minor contradictions do not go to the root of the case in view of the decision of Hon’ble Supreme Court in State of Madhya Pradesh versus Ramesh & Another, (2011) 4 SCC 786 , Waman & Others versus State of Maharashtra, (2011) 7 SCC 295 . The Hon’ble Supreme Court has also observed in State of U.P. versus Naresh & Others, (2011) 4 SCC 324 that minor discrepancies are bound to occur due to normal errors of observation, errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and trivial matters which do not affect core of prosecution case, should not be made a ground for rejecting the evidence in its entirety. It appears from the testimony of PW-6 that accused pelted stones upon them and danda blow was also administered on the eye of PW-4, whereas accused Kashmir held PW-5 and accused Vijay gave hit of belcha. As per testimony of PW-7 (Devinder Kumar), he reached the spot and had tried to rescue deceased as well as PW-4 and observed that PW-4 had suffered injuries on his head and blood was oozing from right eye side. PW-7 also observed that accused Vikram, armed with axe, inflicted axe blow on the head of his aunt Sandhya Devi/ (deceased). Thereafter, the victim was lifted by the accused and was taken to their courtyard and accused also pelted stones upon them. Tapsya Devi and Swarana’s son also proceeded to the spot, but the accused persons pelted stones upon them. However, presence of these two persons was not stated by PW-4, Pw-5 and PW-6. Tapsya Devi and Swarana’s son have neither been cited as witnesses nor have been examined by the prosecution, however, non examination of these persons shall not affect the prosecution case. In reference to the injuries received by deceased, PW-4 has deposed that deceased was dragged to some distance and thereafter accused Vikram gave axe blow on her head and she was taken to the house of accused Vikram, whereas, PW-7 deposed that when he went to rescue PW-5, all the accused started throwing stones upon deceased and after shifting her to some distance, injury was caused on her head, on account of which she fell down and thereafter she was shifted to the compound of accused Vikram Singh. 17. As per testimony of PW-5, the deceased, accompanied by her daughter Anjana (PW-6), came to rescue PW-4, but ladies accused dragged deceased to some distance and accused Vikram inflicted blow of axe on her head, whereas, as per testimony of PW-7, deceased was dragged by all the accused and thereafter hit was given by accused Vikram on her head with axe. As per statement of Surinder Singh (PW-17), medical aid was firstly provided to deceased at Nagrota Bagwan and thereafter she was shifted to Dharamshala, where she died. As per version of PW-17, the injury had been suffered by deceased with axe hit given on her head. As per statement of Surinder Singh (PW-17), medical aid was firstly provided to deceased at Nagrota Bagwan and thereafter she was shifted to Dharamshala, where she died. As per version of PW-17, the injury had been suffered by deceased with axe hit given on her head. PW-17, I.O. has nowhere stated that as per investigation, Tapsya or son of Swarna had reached the spot and they were also stoned by the accused. PW-17 had prepared the site plan Ex. PW-17/A, however, did not found any blood at any place, except where the deceased was found lying. The axe, shoes and nose-pin relatable to deceased when recovered from the compound of accused Vikram proves that the deceased was dragged, taken and injured from axe by accused Vikram Singh, as such, prosecution case is strengthed contrary to assertions made in Paragraph-12(viii) above. Irrespective of recovery of axe, shoes and nose-pin from the compound of accused Vikram Singh, the assertion on behalf of the defence has been that the complainant party was the aggressor and the accused had exercised right of private self-defence. In our considered view, such submission is not legally sustainable as the onus lies on the person who claims right of private defence to show that there were circumstances and occasions for exercising such a right and same was exercised directly in proportion to extent of aggression. In view of the judgment of Hon’ble Supreme Court in Mano Dutt versus State of Uttar Pradesh, (2012) 4 SCC 79 , the onus lies on person who claims right of private defence to show that there were circumstances and occasions for exercising such a right and same was exercised directly in proportion to extent of aggression and just because one circumstance exists amongst various factors, which appears to favour person claiming right of self-defence, does not mean that he gets the right to cause death of other person. 18. From medial evidence, we notice that as per version of PW-1 (Dr. Ruby Bhardwaj), the deceased was found having suffered one injury with blunt weapon and one with sharp edged weapon and as per medical certificate issued by PW-1, there was swelling around the left eye reaching to left side of forehead and she was also found having suffered 10cmX1½cmX1½cm incised wound on the left side of the scalp in the parietal region. The injury i.e. wound on the left side of the scalp was found having been caused with sharp edged weapon and while making statement, PW-1 has stated that injury could be caused with Ex.P1, i.e. axe, which was allegedly recovered from near the spot of occurrence. It appears that injury No. 2 was caused by sharp edged weapon, however, in view of the statement of PW-3 (Dr. H.S. Shekhon) after conducting post mortem examination of the deceased, has found that the deceased has suffered injuries i.e. black eye (left), lacerated wound scalp 6cmX2cm bone deep over left side of frontal bone and also involving parietal bone 6cm above left eye brow. As per statement of PW-3, injury No. 2 was not caused by sharp edged weapon such as axe Ex. P1, but PW-1 has opined the injury to have been caused with blunt weapon, as has been mentioned by him in the post mortem report Ex. PW-3/A. PW-3 has also stated that such injury could be probable with the stick side of the axe and its having been caused from the head side is also less probable with Ex. P1. We, therefore, observe that in view of the opinion of PW-3, injury No. 2 was caused by blunt weapon, whereas in view PW-1, the injury was found to have been caused with sharp edged weapon like Ex. P1, as such the opinion of PW-3 is different from the opinion rendered by PW-1 as well as ocular evidence. 19. In respect of divergent opinion of PW-1 and Pw-3 regarding injury No. 2 inflicted on the person of deceased, the ocular evidence has to be relied upon. It is well settled that the ocular evidence shall assume primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence in view of the decision of Hon’ble Supreme Court in Rakesh & Another versus State of Madhya Pradesh, (2011) 9 SCC 698 . We notice that eye witnesses PW-4, PW-5, PW-6 and PW-7 are consistent in stating that the injury No. 2 was caused by axe Ex. We notice that eye witnesses PW-4, PW-5, PW-6 and PW-7 are consistent in stating that the injury No. 2 was caused by axe Ex. P1, as such, their evidence cannot be discarded simply on the ground that they are interested and related witnesses as in view of the decisions of Hon’ble Supreme Court in State of Maharashtra versus Tulsiram Bhanudas Kamble, AIR 2007 SC 3042 , Sudershan Reddy versus State of A.P., AIR 2006 SC 2616, Amzad Ali versus State of Assam, (2003) SCC 270 and Sucha Singh versus State of Punjab, (2003) 7 SCC 643 , the testimonies of witness in criminal trial cannot be discarded merely because the witness is a relative or family member of the victim. The stand of the defence that when deceased was dragged and assaulted, PW-4, PW-5, PW-6 and PW-7 would not run away from the spot and would always take risk to rescue the deceased. The aspect of these witnesses escaping from the spot to save their lives also creates doubt that all these witnesses were not present on the spot. In our considered view it is the human behavior, depending upon each individual that how an individual react in a particular situation. As such, it cannot be inferred that PW-4, PW-5, PW-6 and PW-7 were not present on the spot, more so, when PW-4 and PW-5 were injured witnesses and testimonies of injured witnesses cannot be out-rightly be overlooked as in view of the observations of Supreme Court in Mano Dutt’s case (supra) ordinarily an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence or to involve anybody falsely and in bargain protect real culprit and convincing evidence is required to discredit an injured witness. 20. We also observe that incident took place on 25th January, 2001 and investigation was conducted on 25/26th January, 2001 An adverse inference could have been drawn, if there had been no investigation in the matter on 25th or 26th January, 2001. 20. We also observe that incident took place on 25th January, 2001 and investigation was conducted on 25/26th January, 2001 An adverse inference could have been drawn, if there had been no investigation in the matter on 25th or 26th January, 2001. As per provisions of Section 157 Cr.P.C., copy of the chick F.I.R. should be sent to the Court of Judicial Magistrate having territorial jurisdiction over the concerned Police Station within 24 hours from the time of recording of the F.I.R. otherwise it requires some explanation as to why the delay was caused in late sending the copy of F.I.R. to the magisterial Court concerned. However, delay in sending copy of F.I.R. to the area Magistrate is not material where the F.I.R. is shown to have been lodged promptly and investigation had started on that basis and delay would also not be material when the prosecution has given cogent and reasonable explanation, in view of the decisions of Hon’ble Supreme Court in N.H.Muhammed versus State of Kerala, (2009) 3 SCC (Criminal) 982, Moti Lal versus State of Rajasthan, (2009) 3 SCC (Criminal) 444, State of Punjab versus Hakam Singh, (2005) 7 SCC 408 and Anil Rai versus State of Bihar, (2001) 7 SCC 318 . In the present case, incident took place on 25th January, 2001, F.I.R. was lodged promptly and the investigation was started on 25/26th January, 2001 itself, as such, in view of the assertion of defence the delay in sending the report to the concerned Magistrate by 36 hours does not make the prosecution case fatal. In view of the judgment of Hon’ble Supreme Court in Sandeep versus State of Uttar Pradesh, (2012) 6 SCC 107 , even if the delay in transmission of report to the concerned Magistrate has occurred and no prejudice has been caused to the accused and prosecution case is otherwise foolproof, as such, no exception could be taken in respect of such delay. We see that the investigation was in progress and for lapse on the part of investigating agency, if any, the prosecution case cannot be doubted in the light of the observations made by Hon’ble Supreme Court in Sheo Shankar Singh versus State of Jharkhand & Another, (2011) 3 SCC 654 , where it was very specifically observed that deficiencies by way of omissions and lapses on the part of the investigating agency cannot in themselves justify a total rejection of prosecution case. In our considered view the FIR was not suppose to contain every detailed facts of the incident and no doubt there was a slight delay in sending the FIR to the Judicial Magistrate, but since the investigation was being carried out in reference to the information, as such, the lapse of sending the information to the concerned Magistrate shall not make the prosecution case fatal. Merely, by not recording the names of Anjana (PW-6) and Devinder Kumar (PW-7) in the FIR, the testimonies of such prosecution witnesses are not to be ignored. Non mentioning of name of any witness in the F.I.R. would not justify rejection of evidence of such eye-witness in view of the observations of Hon’ble Supreme Court in Sri Bhagwan versus State of Rajasthan, (2001) 6 SCC 296 and Chittarlal versus State of Rajasthan, (2003) 6 SCC 397 . In our considered view, though the names of PW-6 and PW-7 were not recorded in the FIR, however, their testimonies cannot be discarded. 21. By merely not placing on record the earlier information given by PW-4 intimating the incident to the police, would not make the prosecution case fatal, when the testimony of PW-4 (Bhagwan Dass), being an injured witness is otherwise inspiring confidence. The non disclosure of telephonic information given by PW-4, therefore, cannot be said to be fatal to the case of the prosecution. It cannot be improbable that on receiving information from PW-4, deceased and PW-6 (Anjana) could not sit on the retaining wall for waiting the arrival of PW-4, because nothing has been brought by the defence on record that sitting of deceased and PW-6 for waiting arrival of PW-4 cannot be possible. By merely not ascertaining the blood group on the axe Ex. P-1 for the purpose of relating with the blood of deceased, the prosecution case cannot be said to be vitiated. By merely not ascertaining the blood group on the axe Ex. P-1 for the purpose of relating with the blood of deceased, the prosecution case cannot be said to be vitiated. The injured witnesses, namely, PW-4 and PW-5 have coherently stated that the deceased had suffered injury No. 2 by blow of axe (Ex. P-1) and such injury was caused by accused Vikram Singh and PW-1 has also corroborated the same. In these facts and circumstances, the prosecution case is strengthened. 22. The incident had taken place between 6.30 to 6.45 P.M., in view of the statements of PW-4 and other prosecution witnesses, who have identified the assailants, however, their testimonies cannot be disbelieved on the ground that sun set had taken place on 25th January, 2001 at about 5.30 P.M. and there was no provision of light nearby the spot. In our considered view, the assailants were known previously and in any case, they were not strangers, therefore, there cannot be any difficulty to recognize them by their voices and by their acts, as the injured witnesses were from the same locality, as such there could not be any difficulty in recognizing the known accused persons even in less visibility. On this point alone, the testimonies of PW-4, PW-5, PW-6 and PW-7 cannot be disbelieved. It has also been argued on behalf of the State that since the accused were known to the prosecution witnesses and even if the incident took place after sunset, however, as the parties were used to live in the midst of nature and accustomed to live without light, therefore, the assertion of defence that the ocular witnesses could not have witnessed the occurrence is to be rejected in the light of the verdict of Supreme Court in Shiv Raj Bapuray Jadhav & Others Versus State of Karnataka, (2003) 6 SCC 392 . It has further been submitted by the learned Senior Additional Advocate General that the capacity of visualization by urban people may not come in the way of prosecution as it would be quite possible for them to identify men and matters in minimum light, as such, defence version is not to be given weightage in view of the decision of Supreme Court in Kalika Tiwari & Others Versus State of Bihar, (1997) 4 SCC 445 = JT 1997(4) SC 405. 23. 23. In view of the aforesaid discussion, we infer that the accused Hanumant has caused injuries on the person of PW-4, which was simple in nature; accused Vijay Kumar has also caused injury on the person of Amit Kumar, while accused Kashmir Singh was holding Amit Kumar (PW-5), however, these injuries were simple in nature. We also notice that accused Vikram Singh has caused injury No. 2 specifically with axe (Ex. P1) on the person of deceased because of which she died. On analysis of prosecution witnesses that all the accused had formed unlawful assembly and armed with deadly weapons had attacked the complainant party and everyone had assembled with an intention to cause injury on the person of the complainant, as such, the participation of other accused, except accused Vikram Singh, Vijay Kumar, Hanumant and Kashmir Singh are not proved beyond reasonable doubt. Therefore, in the facts and circumstances, the acquittal of other persons by learned Additional Sessions Judge is legally correct. Keeping in view the role of the accused / respondent, who gave blow by axe (Ex. P1) and for causing her death by inflicting injury No. 2 on the person of deceased / Sandhya Devi, caused Vikram Singh is liable to be held guilty of offence under Section 302 of the Indian Penal Code and accused Vijay Kumar, Hanumant and Kashmir Singh are liable to be held guilty of offence under Section 323 of the Indian Penal Code. 24. In the aforesaid facts and circumstances, in our considered view, the findings arrived at by the learned Additional Sessions Judge, holding the accused Vikram Singh guilty of offence under Section 302 of the Indian Penal Code, do not require any interference, as such Criminal Appeal No. 382 of 2005, preferred by convict Vikram Singh, is dismissed. 25. In respect to conviction and sentence of convict Kashmir Singh for the offence under Section 323 of the Indian Penal Code, since he has already undergone sentence of about 2 ½ months, as such, the sentence awarded to convict Kashmir Singh is modified to the extent the period of sentence of two and half month already undergone by the convict for offence under Section 323 of the Indian Penal Code and to pay fine of 1000/- and in default of fine to undergo sentence of simple imprisonment of one month. As such, Criminal Appeal No. 383 of 2005, preferred by convict Kashmir Singh, is disposed of in the above terms. 26. In reference to conviction and sentence awarded to convict Vijay Kumar for commission of offence under Section 323 of the Indian Penal Code, since he has already undergone sentence of about 4 months 18 days, therefore, Criminal Appeal No. 384 of 2005, preferred by convict Vijay Kumar, is disposed of by modifying the sentence to the extent of the period, which the convict has already undergone and to pay fine of 1000/- and in default of fine to undergo sentence of simple imprisonment of one month. 27. The Cr. Appeal No.385 of 2005, preferred by convict Hanumant Raj, is also disposed of with observation that the period of sentence is modified to the extent of period already undergone by the convict i.e. 4 months 18 days and to pay fine of 1000/- and in default of fine to undergo sentence of simple imprisonment of one month. However, fine amount is not modified and shall remain the same. 28. Keeping in view the aforesaid facts and circumstances and the observations made above, the prosecution has failed to prove its case beyond all reasonable doubts against accused Fauja Ram, Roshan Lal, Anil Kumar, Raj Kumar, Champa Devi, Sumna Devi, Nisha Devi and Daya Devi, as such the findings arrived at by the learned Additional Sessions Judge qua these accused persons are not interfered with and in our considered view, there is no scope of enhancement of conviction and sentence qua convict appellant Vikram Singh, Kashmir Singh, Vijay Kumar, Hunumant Raj and conviction against the remaining respondents, as such, Criminal Appeal No.480 of 2005, preferred by the State, is dismissed, qua these accused persons.