JUDGMENT 1. - These three appeals have been preferred against three judgments passed by trial court in one FIR arising out of one incident, hence these are being decided by this common judgment. For continence, the facts are taken from Cr. Appeal No. 684/2004. 2. All these appeals have been filed against the judgments passed by trial Court whereby the appellants have been convicted and sentenced as under: Accused appellants Hemu @ Hemraj, Munshi and Amrit Lal @ Jhaptu Under Section 148 IPC Simple imprisonment for three years; Under Section 302/149 IPC to undergo Life imprisonment and a fine of Rs. 2000/- each in default of payment of fine, to further undergo three month S.I.; Accused appellant Shatrudhan Under Section 148 IPC Simple imprisonment for three years: Under Section 302/149 to undergo Life Imprisonment and a fine of Rs. 2000/- each in default of payment of fine, to further undergo three month S.I.: Accused appellant Veer Singh: Under Section 148 IPC Simple imprisonment for three years and a fine of Rs. 1,000/- and in default of payment of fine to further undergo additional simple imprisonment for three months; Under Section 302/149 IPC to undergo Life imprisonment and a fine of Rs. 2000/- each in default of payment of fine, to further undergo three month S.I.; (All the sentences were ordered to run concurrently) 3. The facts narrated in appeal No. 684/2004 are that on 6.4.2001 at about 8.30 PM a report Ex.P/1 has been lodged by Pooniya Ram (PW/1) stating therein that at about 4.00 PM, his brother Kalua and Babu were coming from the agricultural fields, they saw that in front of their house, Amrit, Hemu and Veersing totalling 12 persons having Gandasi, Axe and sticks in their hands started beating Kalua. First Munshi, Amrit, Hemu and Veer Singh inflicted lathi and Gandasi blow on his head. Kalua died on the spot, thereafter Munesh, Naresh, Shimbhoo etc. inflicted lathi blow to Babu who suffered grievous injuries. Ramjilal tried to pacify the matter at that time and Ramkunwar has also received injuries in the incident. On this report, FIR No. 53/2001 has been registered for the offence under Sections 147, 148, 149, 323 and 302 IPC. The injured Babu has also expired after 15 days due to the injuries suffered. Ramjilal tried to pacify the matter at that time and Ramkunwar has also received injuries in the incident. On this report, FIR No. 53/2001 has been registered for the offence under Sections 147, 148, 149, 323 and 302 IPC. The injured Babu has also expired after 15 days due to the injuries suffered. Charge sheet has been filed against appellants Hemu @ Hemraj, Munshi and Amrit @ Jeptu under Sections 147, 149, 323 and 302 IPC. As the accused appellants Shatrudhan and Veer Singh were absconding charge sheet has been filed against them under Section 299 Cr.PC. The learned court below has framed charges against the appellants Hemu @ Hemraj, Munshi and Amrit @ Japtu for the offence under Sections 148, 302/149, 325 and 149 IPC, In support of its case, the prosecution has examined PW.1 Pooniya Ram, PW.2 Halki w/o Jagan, PW.3 Halki w/o Babu, PW.4 Mukti, PW.5 Ramjilal, PW.6 Meghram, PW.7 Roopram, PW.8 Girraj, PW.9 Kedar, PW.10 Dr. Pritam Chand Gupta, PW.11 Kripal Singh, PW.12 Shivsingh, PW.13 Dr. Ramswaroop Meena, PW. 14 Dr. Nandlal Sharma, PW.15 Ramnath Singh, PW.16 Vijay Singh and PW.17 Dr. Suman Dutta dnd produced Ex. P/1 to P/28. Statements of accused persons have been recorded under Section 313 Cr.PC. and in defence no oral evidence has been produced but the defence has also relied upon Ex.D/1 to D/7. On arrest of Shatrudhan, additional chargesheet has been presented against him and committed. He has been charged for offences u/Ss. 147, 148, 323, 324, 302 and 302/149 IPC. The witnesses PW. 1 Pooniya Ram, PW. 2 Kedar, PW. 3 Mukti, PW. 4 Halki. PW. 5 Roopram, PW. 6 Meghram, PW. 7 Girraj, PW. 8 Rajulal, PW. 9 Kamal, PW. 10 Ramjilal, PW. 11 Mangturam, PW. 12 Dr. Sriram Meena, PW. 13 Dr. Nandlal Sharma, PW. 14 Srichan Nehra, PW. 15 Vijay Singh, PW. 16 Dr. Suman Datta and PW. 17 Ramnath Singh have been recorded for appellant Shatrudhan and prosecution relied upon Ex.P1 to Ex.P23. He has been examined under Section 313 Cr.P.C. and he relied upon documents Ex.D/1 to D/9, no oral defence evidence has been produced. Thereafter accused Veer Singh has been arrested and a supplement charge-sheet has been filed against him. He has been charged for the offence under Sections 148, 302/149 and 325/149 IPC. The witnesses PW.1 Man Singh, PW.2 Pooniya, PW. 3 Mukti. PW. 4 Meghram, PW.5 Girraj, PW. Thereafter accused Veer Singh has been arrested and a supplement charge-sheet has been filed against him. He has been charged for the offence under Sections 148, 302/149 and 325/149 IPC. The witnesses PW.1 Man Singh, PW.2 Pooniya, PW. 3 Mukti. PW. 4 Meghram, PW.5 Girraj, PW. 6 Roopram, PW.7 Halki, PW.8 Lahari, PW.9 Parsadi, PW.10 Kedar Lal, PW.11 Halki w/o Jagar. PW.12 Ramjilal, PW13 Rajulal, PW. 14 Kamal, PW. 15 Dr. Sriram Meena, PW. 16 Dr. Preetam Chand Gupta, PW.17 Dr. Nandlal Sharma, PW. 18 Dr. Suman Dutta and PW.19 Ramnath Singh have been examined by the prosecution to support his case qua the appellant, and relied upon Ex.P1 to Ex.P20. His statement under Section 313 Cr.PC. has been recorded and reliance has been placed on Ex.D/1 to D/11, no oral defence evidence has been produced. 4. After the conclusion of the trials all the above appellants have been convicted and sentenced as above, hence these appeals. 5. During pendency of the appeal, appellant Munshi died on 11.3.2013 hence his appeal abated and dismissed. 6. As the trials have been conducted separately, so it is convenient to first scan the evidence which have been recorded in the trial of the appellants - Hemu @ Hemraj and Amrit Lal @ JhaptuAppeal No. 684/2004 (Hemu @ Hemraj and Amrit Lal) 7. The contention of the appellants Hemu @ Hemraj and Amrit Lal @ Jhaput is that the whole story is concocted one. The FIR is ante time. PW/1 Pooniya Ram has stated that he submitted the written report on the same night in the hospital but that report has not been produced and it has been substituted by another report in which appellants have been falsely implicated and when FIR is ante time, it cannot be seen even for the purpose of corroboration. Motive for the offence is not disclosed in FIR or even in the statements of witnesses under Section 161 Cr.P.C. The FIR was given after due deliberation as PW/1 Pooniya Ram has sated that FIR was prepared by an advocate, hence the possibility of false implication cannot be ruled out. PW/3 Halki and PW/4 Mukti who are the wives of the deceased have improved their version in the Court and presented themselves as eye witnesses contrary to the statements recorded under Section 161 Cr.P.C., as per statement recorded u/s 161 Cr.P.C., they are not the eye-witnesses. PW/3 Halki and PW/4 Mukti who are the wives of the deceased have improved their version in the Court and presented themselves as eye witnesses contrary to the statements recorded under Section 161 Cr.P.C., as per statement recorded u/s 161 Cr.P.C., they are not the eye-witnesses. PW/5 Ramji Lal, PW/6 Meghram and PW/7 Roopram alleged eye witnesses have not been so named in the FIR. PW/8 Girraj has exaggerated his version and rendered himself to be unworthy of reliance. PW/9 Kedar is brother of the deceased. He has testified himself to be an eye-witness. Statements of witnesses have been taken after a significant delay during investigation, no unlawful assembly was formed as the occurrence has taken place on the altercation between Jena, father of deceased an Jhaptu. Kalua has suffered only one injury whereas the witnesses have exaggerated their versions and stated that deceased has received a number of injuries and Roopram (PW/7) has sated that deceased suffered 12 injuries. Babu died after 15 days of the incident hence intention of murder could not be attributed to the present appellants. The prosecution has not placed real truth before the court, there was no immediate cause for the incident as there was no bad blood between the parties. The incident has occurred in a spur of moment when an altercation has taken place between the parties and Kalua and Babu came there from their fields for intervention. The appellants have inflicted the single injury to Kalua and who caused this injury has not been established by the prosecution, hence the appellants deserve acquittal. 8. Per contra, the contention of the Public Prosecutor is that initially altercation has taken place between father of the deceased Jena and Jhaptu, Babu and Kalua came there to intervene, they were not the aggressors. Appellant came there with sharp weapons, witnesses are consistent on the point that five persons were involved in the scuffle and all the injuries has been attributed to them. Unlawful assembly has been formed at the spot, head injury has been inflicted to Kalua and Babu and two persons have died in the incident. There is no infirmity in the conviction of the appellants and no interference is needed. 9. Heard the learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 10. There is no infirmity in the conviction of the appellants and no interference is needed. 9. Heard the learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 10. PW/1 Pooniya Ram who is the informant of the incident has stated that when Kalua and Babu were coming from their agricultural field, Hemu, Munshi. Veersingh, Amrit total 13 persons who were named came there armed with weapons in front of their house, all encircled Kalua and inflicted injuries to him and his head has been divided into two pieces. He died on the spot. Babu intervened and forbidden for beating, all inflicted injuries to Babu also. His further contention is that Ramjilal, Meghram, Roopram, Kedar, Girraj, Halki. Mukti, Halki w/o Jagnu and Kedar all came there to intervene. Babu was shifted to hospital where he died after 8-7 days. Other witnesses PW/3 Halki and PW/4 Mukti have also testified the incident in the same manner as narrated by PW/1 Pooniya Ram and they presented themselves to be eye-witnesses in the court statement but they have been rightly contradicted by their previous statement which shows that they themselves have not scene the occurrence. They reached at the place of incident when the occurrence has finished and saw Kalua and Babu were lying there dead and injured respectively. Hence these two witnesses are not eye-witnesses and they have improved their versions significantly from their previous versions and cannot be relied upon as eye- witnesses but both these witnesses has also testified the fact that such incident has taken place and as a result of injuries Kalua and Babulal have died. 11. PW/5, Ramjilal has been presented by the prosecution as eye-witness to the incident. He has stated that he is neighbour to the place of occurrence and he saw that Munshi, Jhaptu, Veersingh, Hemu and nephew Shatrudhan etc. having weapons in their hands, all started beating Kalua who died on the spot and thereafter they inflicted injuries to Babu who died at Jaipur under treatment. His further contention is that Girraj, Sukko and Meghram were also there who were seeing the incident. having weapons in their hands, all started beating Kalua who died on the spot and thereafter they inflicted injuries to Babu who died at Jaipur under treatment. His further contention is that Girraj, Sukko and Meghram were also there who were seeing the incident. The contention of the counsel for the appellants is that admittedly in the day, he went to his field with all his other family members and there was no reason for him to be at home earlier when his other family members were still working at fields and he cannot be relied upon but on this account only, the presence of Ramji Lal could not be disputed. Ramjilal has categorically stated that he came earlier to feed the cattles and he saw the incident as he was sitting at the shop of Meghram and PW/r Meghram has also stated that at the time of the incident, Ramjilal was sitting at his shop and Ramjilal has not improved his court version from his previous statement. Statement of Ramjilal under investigation has been recorded without any delay on the next date i.e., on 7.4.2001. 12. The other contention of the appellants is that Ramjilal has stated that Kalua has received injuries on his back and legs but no such injury has been found on his person as per the post mortem of Kalua Ex.P/17. It is true that Kalua has received only one injury which is on head and Ramjilal has also stated that he saw only one injury on the head of deceased. Later on he has improved his version regarding injuries on back and legs but on account of these minor contradictions, his testimony cannot be discarded wholly. The Court has to segregate grain from the chefs and truth from the falsehood and Ramjilal is consistent on the point that present two appellants were present on the spot, they all attacked Kalua and inflicted injury on him and when Babulal intervened, he has also been beaten and he received injuries and scummed out of the injuries. 13. PW/6 Meghram is the another eye-witness whose presence is natural there as he is having shop at the place of occurrence. He has also testified the fact that appellants inflicted injuries to Kalua and Babulal and Kalua died on the spot. He has further testified the presence of Ramjilal, Dhundi and Parsadi etc. on the spot. 13. PW/6 Meghram is the another eye-witness whose presence is natural there as he is having shop at the place of occurrence. He has also testified the fact that appellants inflicted injuries to Kalua and Babulal and Kalua died on the spot. He has further testified the presence of Ramjilal, Dhundi and Parsadi etc. on the spot. There is some contradiction in the statement as regards the number of injuries sustained by Kalua but he is consistent on the point that the appellants have inflicted injury to Kalua and Babulal. 14. PW/7 Roopram is the another eye-witness. The contention of the appellants is that he is cousin brother of the deceased but on this account only, his testimony cannot be denied. He has also very categorically stated that appellants inflicted injuries to Kalua and Babu and he has also testified the presence of Meghraj, Ramjilal and Girraj on the spot and he has not been contradicted from his previous statement recorded during investigation there is reason to term him an unreliable witness. 15. PW/8 Girraj is the another eye-witness who was present at the shop of Meghraj at the time of the incident and he has also testified the fact that appellants have inflicted injuries to Kalua and Babu. His further contention is that he cannot say that which injury has been caused by which accused but he has testified the presence of both these appellants. PW/9 Kedar also corroborated the prosecution story, thus there is no reason to disbelieve the evidence of PW/5 Ramjilal, PW/6 Meghram, PW/7 Roopram and PW/8 Girraj. They are all independent witnesses having no enmity with the appellants and they are consistent on the point that appellants inflicted injury to Kalua who died on the spot and inflicted injuries to Babu who died 15-16 days after the incident. 16. The contention of the appellants is that it has not been proved by the prosecution that who is responsible for causing the fatal injury to Kalua and which injury has been caused by which accused to Babu. 16. The contention of the appellants is that it has not been proved by the prosecution that who is responsible for causing the fatal injury to Kalua and which injury has been caused by which accused to Babu. When number of persons are hitting two persons, It is not possible always for the witnesses to narrate which injury has been caused by which accused person, it depends upon the capacity of observation and reproduction of a particular person and only due to the fact that witnesses have not stated that which injury has been caused by which accused, their evidence cannot be discarded wholly. The court below has rightly arrived at a conclusion that present appellants Hemu and Amrit Lal have inflicted fatal injury to Kalua and Babu both. 17. PW/13 Dr. Ramswaroop has conducted the post mortem of deceased Kalua and found the following one injury on his head and vide Ex. P/17, post mortem report the cause of death is single injury which is sufficient to cause death in the ordinary course of nature: "Obliquely lacerated wound - c irregular margin 12.5 cm x 2.75 cm x upto muscle bone deep on the middle of occipital bone -c fracture of occipital bone. The nature of injury is grievous caused by blunt object." 18. PW/14 Dr. Nandlal Sharma has prepared the injury report of Babi when he was alive and his injury report is Ex.P/18. He suffered five injuries as under: "(i) Rod contusion 3 cm x 2 cm on Rt. Frontal part of skull with swelly. (ii) Rod contusion 10 cm x 3 cm on left frontal parietal and temporal part of skull with black left eye with Haemmotma. (iii) Oblique incised wound 4 cm x 2 cm x skin and muscle upto bone deep on left parietal part of skull with bleeding neck parietal Amines. (iv) Rod contusion 7 cm x 3 cm on a right parietal and occipital part of skull with swelly. (v) Rod contusion 3 cm x 2 cm nose with bleeding nose + P" 19. PW/17 Dr. Suman Dutta has conducted the post mortem of deceased Babulal and vide Ex. P/27, the cause of death is ante mortem injury to skull brain and injury No. 1 is found to be sufficient to cause death and all the injuries were found sufficient to cause death in the ordinary course of nature. PW/17 Dr. Suman Dutta has conducted the post mortem of deceased Babulal and vide Ex. P/27, the cause of death is ante mortem injury to skull brain and injury No. 1 is found to be sufficient to cause death and all the injuries were found sufficient to cause death in the ordinary course of nature. The injured Babulal has died on 21.4.2011 at 6.40 AM due to injuries suffered in the incident. 20. Hence from the discussion made above, the prosecution has proved beyond reasonable doubt that the appellants have caused fatal injuries to deceased Kalua and Babu. 21. The contention of the appellants is that First Information Report is ante time and in support of his contention reliance has been placed on Nathya & ors. v. State of Rajasthan, 1993 Cr.L.R. (Raj.) 14 . PW/1 Pooniya Ram has stated that he has presented Ex.P/1 report at the hospital at night and within one hour of the incident the police reached at the spot and shifted Kalua and Babu to hospital whereas Ex.P/1 has been presented at Police Station at about 8.30 PM. Hence the First Information Report is ante time and cannot be read even for corroboration purposes. It has been prepared by a legal practitioner and false implication cannot be ruled out. Pooniya Ram (PW/1) has stated that he presented the First Information Report which is Ex.P/1, hence the contention of the appellants that Ex.P/1 is fabricated one is ruled out which has been submitted on the same day at 8.30 PM. The only contradiction is that whether it has been presented at hospital or at Police Station when lodging of the FIR is admitted, where it has been presented becomes insignificant and on this ground alone, the FIR cannot be disbelieved which has been corroborated in material particulars with the statements of PW/1 Pooniya Ram himself and other witnesses whose testimony has been already scanned above. 22. The other contention of the appellants is that eye - witnesses to the incident named in the FIR, Ramkumar has not been produced and even Ramkumar was not alive at that time. 22. The other contention of the appellants is that eye - witnesses to the incident named in the FIR, Ramkumar has not been produced and even Ramkumar was not alive at that time. It is true that Ramkumar has not been produced by the prosecution even his injury report has not been placed before the Court but non production of Ramkumar cannot be treated fatal for the prosecution as prosecution has proved the guilt of the appellants by other ocular and medical evidence. 23. The other contention of the appellants is that witnesses have stated that appellants Amrit and Hemu were having Gandasi in their hands whereas the deceased Kalua has received injury by blunt weapon and four injuries to Babulal are also by blunt weapon, hence ocular evidence is not in conformity with the medical evidence and caste shadow on the truthfulness of the prosecution. Reliance has been placed on Kathi Odhabhai Bhimabhai & ors. v. State of Gujarat 1993 Cr.L.R. (SC) 720 ; and Purshottam & Anr. v. State of Madhya Pradesh, AIR 1980 SC 1873 and further contention of the appellants is that when witnesses has stated that Gandasi has been used, it is to be presumed that sharp side of the weapon has been used and reliance has been placed on State of Haryana v. Gurdial Singh & Anr., AIR 1974 SC 1871 . There cannot be any quarrel on the law propounded above but here in the present case all the witnesses are consistent on the point that appellants have inflicted injury to Kalua and Babu. It is true that specific injury has not been attributed to specific accused but infliction of injury by the appellants has been proved beyond reasonable doubt against the present appellants and any discrepancy on the medial and ocular evidence cannot be taken to be fatal to the prosecution as independent witnesses PW/5 Ramjilal, PW/6 Meghram, PW/7 Roopram and PW/8 Girraj have stated that appellants are the author of the fatal injury. Deceased Babulal has also suffered injury from sharp weapon. 24. In view of the above, it can safely be concluded that appellants Hemu and Amrit Lal has inflicted fatal injuries to the deceased. Deceased Babulal has also suffered injury from sharp weapon. 24. In view of the above, it can safely be concluded that appellants Hemu and Amrit Lal has inflicted fatal injuries to the deceased. Looking to the nature of evidence produced by the prosecution, as PW/6 Meghram has stated that earlier an altercation has taken place between Jena and Jhaptu and on the information of this altercation, Babulal and Kalua who were working at their field came there to intervene and when they reached at the spot, the incident has taken place on the spur of moment and from the facts of the case, it could be inferred that incident has occurred suddenly without premeditation. Kalua has suffered only one injury and that too by the blunt weapon, number of persons were involved in the scuffle, but only one injury has been inflicted to Kalua which found to be fatal. There is no repetition of blow. As regards injuries to Babulal, he has suffered five injuries and injury No. 1 was itself found to be fatal. Thus, looking to the fact that no repeated blow has been caused by the appellants, both the deceased have received only single fatal injury and Babu died after 15 days of the incident, it can safely be concluded that case of the appellants fall under exception (iv) of Section 304 Part-I and conviction of the appellants under Section 302 is liable to be altered under Section 304 Part-I read with 34. The primary intention of the appellants was to intervene and to support their father and not to liquidate the deceased. PW/1 Pooniya Ram has specifically admitted in his cross-examination that there was no previous enmity between the parties. Per contra he has admitted the fact that appellant Hemu @ Hemraj has donated blood to him and they were having enmity with the appellants only after this incident. 25. In view of the above conviction of the appellants for the offence under Section 302/149 is altered to Section 304/34 IPC.Appeal No. 1058/2006 (Shatrudhan) 26. The contention of the accused appellant Shatrudhan is that he has not been named in the First Information Report. 25. In view of the above conviction of the appellants for the offence under Section 302/149 is altered to Section 304/34 IPC.Appeal No. 1058/2006 (Shatrudhan) 26. The contention of the accused appellant Shatrudhan is that he has not been named in the First Information Report. He has been described only by relations with Munshi but he has not been put to the test identification parade during investigation at the hands of the eye- witnesses and as per FIR and statement under investigation, the case of the prosecution is that present appellant was having lathi in his hand but during trial, the entire prosecution evidence has been improved and it has been stated by the eye-witnesses that he was having Kulhari and he inflicted Kulhari blow on the head of the deceased. Kalua has received only one single injury that too by blunt weapon, hence the present appellant could not be convicted on the shaky and unreliable evidence of designed witnesses. Babulal has died after 15 days of the incident, due to inadequate medical treatment, Initially, FIR was lodged against 12 persons whereas 7 persons have been left by the police, hence the case of the prosecution is damaged by itself and present appellant deserves to be acquitted. 27. Per contra, the contention of the Public Prosecutor is that the presence of appellant has been shown since inception as narrated in the FIR and all the witnesses are consistent on the point that he participated in the incident. It is true that some exaggeration as regards to having Kulhari has been made by the witnesses and the reason is also obvious that trial of the present appellant only was proceeding and it is the common human nature to make their case strong, the witnesses has improved their version but the presence of the present appellant cannot be doubted. He was a participant in the incident out of which Kalua and Babu has died. The defence of inadequate medical treatment is not available to the appellant looking to the provisions of Section 299 Exception (II). 28. As stated earlier PW/1 Pooniya Ram has lodged the First Information Report and presence of the present appellant has been stated from the inception. The defence of inadequate medical treatment is not available to the appellant looking to the provisions of Section 299 Exception (II). 28. As stated earlier PW/1 Pooniya Ram has lodged the First Information Report and presence of the present appellant has been stated from the inception. It is true that name of the present appellant not found place in the First Information Report but his relation with Munshi has been stated and PW/1 Pooniya Ram and PW/10 Ramjilal have also identified the present appellant before the court, hence identity of the present appellant could not be disputed which has been proved beyond reasonable doubt by the prosecution. Much emphasis has been given on the point that earlier in FIR, the contention of the prosecution is that present appellant was having lathi whereas during court statements, it has been stated by the witnesses that present appellant was having a Kulhari and have inflicted blow on the head of deceased Kalua. It is true that on this point, the witnesses have improved their version but as pointed out by the prosecution that only present appellant was facing trial and the appellant to just make out a strong case has improved their version, hence looking to the above facts, the prosecution evidence cannot be discarded wholly on this discrepancy. All the witnesses are consistent on the point that the present appellant was present at the spot, he was sharing a common intention with other appellants and they all inflicted injury first to Kalua and when Babu came there to intervene, he was also beaten and died as a result of the injuries suffered at the hands of appellants. 29. The contention of the appellant that initially 12 persons have been involved in the crime and 7 persons have been left by the police cannot be treated a ground in favour of the appellants. Principle of falsus in uno fallus in omnibus is not applicable in India and on the ground that some persons have been left by the police, the present appellant deserve no concession. 30. It is true that Babulal has died after 15 days and it has been agitated by the defence that he has received inadequate medical treatment, but looking to the provisions of Section 299 Explanation (II) IPC, this defence is not available to the present appellant. 31. 30. It is true that Babulal has died after 15 days and it has been agitated by the defence that he has received inadequate medical treatment, but looking to the provisions of Section 299 Explanation (II) IPC, this defence is not available to the present appellant. 31. PW/5 Roop Ram, PW/6 Meghram, PW/7 Girraj and PW/10 Ramjilal all are consistent on this point that the present appellant was involved in the incident and he has also participated in the incident and out of incident Kalua and Babu have died. As considered earlier, there is no discrepancy in the evidence of these eye-witnesses, they are reliable witnesses and rightly been relied upon by the court below. The counsel for the defence has relied upon Aliauddin Mian & ors. Sharif Mian & Anr. v. State of Bihar, AIR 1989 SC 1456 ; Debashis Daw & ors. v. State of West Bengal, 2011(1) WLC (SC) Cri. 60 : (2010) 9 SCC 111 ; and Pandurang Chandrakant Mahatre & ors. v. State of Maharashtra, 2010(1) WLC (SC) Cri. 476 : (2009) 10 SCC 773 where it has been held that mere presence of accused does not make him liable for conviction and principles of vicarious liability have been explained but here in the present case, the present appellant was not merely present but he has participated in the incident. 32. The counsel for the appellants has also relied upon Kapildeo Mandal & ors. v. State of Bihar, AIR 2008 SC 533 ; Smt. Bimla Devi v. State of Haryana, 2003(1) WLC (SC) Cri. 613 : JT 2003(4) SC 1 ; and State of U.P. v. Dinesh, JT 2009(3) SC 106 where there was a material discrepancy between medical evidence and ocular evidence and prosecution evidence was found to be doubtful but as scanned earlier, here the prosecution evidence is consistent on the point that appellants Hemu, Amrit Lal. Munshi, and Shatrudhan also attacked on Kalua and Babu and inflicted fatal injuries to them and both the deceased died out of the incident. On the point of contradiction in the statements of prosecution witnesses, reliance has been placed on State of U.P. v. Dinesh, JT 2009 (3) SC 106 . There is no quarrel on the proposition, but here in the present case, there is no material contradiction in the statements of witnesses. On the point of contradiction in the statements of prosecution witnesses, reliance has been placed on State of U.P. v. Dinesh, JT 2009 (3) SC 106 . There is no quarrel on the proposition, but here in the present case, there is no material contradiction in the statements of witnesses. The only discrepancy as regards to the use of weapon of offence sufficiently been explained by the prosecution. 33. The contention of the appellant is that infirm witnesses cannot corroborate by the witnesses of same brand and reliance has been placed on Muluwa S/o Binda & ors. v. State of Madhya Pradesh, AIR 1976 SC 989 but here in the present case, the evidence of PW/5 Roop Ram, PW/6 Meghram and PW/7 Girraj suffer from no infirmity and they have corroborated the prosecution story on its material particulars, hence there is no infirmity in the finding that the present appellant has also participated in the offence As observed earlier, as the incident has taken place in spur of moment without premeditation and no undue advantage has been taken by the appellant, the case does not travel beyond scope of Section 304 Part-I IPC, hence the conviction of the present appellant is liable to be altered from that of 302/149 to Section 304 Part I read with 34 IPC.Appeal No. 996/2011 (Veer Singh) 34. The contention of the counsel for the appellant Veer Singh is that he has been implicated only for the reason that he is a Government servant. The witnesses has not corroborated the role of the present appellant. PW/4 Meghram and PW/5 Girraj have stated that Veer Singh, present appellant has tried to save the deceased and he was there to intervene. PW/12 Ramjilal has not supported the prosecution story. Other eye-witnesses has also not supported the prosecution story. No recovery has been effected from the present appellant hence the presence of the present appellant is doubtful, he deserves acquittal. 35. The learned Public Prosecutor has opposed the objections raised by the counsel for the appellant and his contention is that PW/2 Pooniya Ram, PW/3 Mukti and PW/7 Halki, wives of deceased, have corroborated the prosecution story. There is no reason to discard the evidence of PW/10 Kedar hence conviction of the present appellant requires no interference. 36. 35. The learned Public Prosecutor has opposed the objections raised by the counsel for the appellant and his contention is that PW/2 Pooniya Ram, PW/3 Mukti and PW/7 Halki, wives of deceased, have corroborated the prosecution story. There is no reason to discard the evidence of PW/10 Kedar hence conviction of the present appellant requires no interference. 36. PW/2 Pooniya Ram has lodged the First Information Report but in contradiction to First Information Report, he has stated that Veer Singh caught Kalua from his vest whereas no such narration has been found place in the First Information Report and his further contention is that he heard about the fact that his two brothers have been murdered. He has not Claimed himself to be eye-witness. PW/3 Mukti and PW/7 Halki are not the eyewitnesses as observed earlier. 37. PW/4 Meghram and PW/5 Girraj who are the star witnesses of the prosecution has not supported the prosecution case qua the present appellant and their contention is that Veer Singh was there to pacify the matter and only Munshi, Hemu, Amrit and Shatrudhan have caused the injuries. Veer Singh was there but he was counseling the matter. These two witnesses has not been declared hostile by the prosecution, still they have not corroborated the prosecution story. PW/6 Roop Ram, who is the other eye-witness, has not attributed any specific act to the appellants and he has stated that at the time of the occurrence, he was at his house. Other eye-witnesses of the prosecution, PW/8 Laheri, PW/9 Parasadi and PW/14 Kamal have been declared hostile and they have not supported the prosecution story. PW/10 Kedar Lal who is the brother of the deceased and also an alleged eye-witness of the incident has also not stated anything against the present appellant. PW/11 Halki has stated that except Hemu and Shatrudhan none else has inflicted any injury. PW/12 Ramjilal the star witness of the prosecution has not supported the prosecution and he has been declared hostile, hence the prosecution has utterly failed to prove the participation of the present appellant in the crime. 38. The star witness of the prosecution, PW/4 Meghram and PW/5 Girraj has stated that present appellant was making effort to pacify the matter during the incident and he has not inflicted any injury to anyone. 38. The star witness of the prosecution, PW/4 Meghram and PW/5 Girraj has stated that present appellant was making effort to pacify the matter during the incident and he has not inflicted any injury to anyone. Thus, the prosecution has failed to prove the offence against the present appellant beyond reasonable doubt and the present appellant deserve benefit of doubt. 39. Consequently, Appeal No. 684/2004 filed by Hemu @ Hemraj and Amrit Lal @ Jhaptu is partly allowed. The conviction awarded to both these appellants under Section 302/149 IPC is modified to one under Section 304 Part-I read with section 34 IPC. Their conviction u/s 148 IPC is also set aside. Considering the fact that accused-appellant Hemu @ Hemraj is in jail for about 10 years and 7 months and Amrit Lal for about 10 years and 4 months, we reduce their sentence to the period already undergone by them. The accused appellants, if not required to be detained in connection with any other case, may be released forthwith subject to deposit of fine as ordered by the trial Court. The impugned judgment dated 27.2.2004 passed by Sessions Judge, Karauli in Sessions Case No. 94/2001 is modified accordingly. 40. Appeal No. 1058/2006 filed by accused appellant Shatrudhan is also partly allowed. The conviction awarded to appellant under Section 302/149 IPC is modified to one under Section 304, 302/149 IPC is modified to one under Section 304 Part-I read with section 34 IPC. His conviction under section 148 IPC is set aside. Considering the fact that accused-appellant is already in jail for about 8 years and 2 months, we sentence him to the period already undergone by him. The accused appellant, if not required to be detained in connection with any other case, may be released forthwith subject to deposit of fine as ordered by the trial Court. The impugned judgment dated 28.9.2006 passed by Additional Sessions Judge, (Fast Track), Karauli in Sessions Case No. 38/2005 is modified accordingly. 41. Appeal No. 996/2011 filed by accused appellant Veer Singh is allowed. The accused appellant is acquitted of all the charges leveled against him. Accused appellant Veer Singh, if not required to be detained in connection with any other case, may be released forthwith. The impugned judgment dated 23.7.2011 passed by Additional Sessions Judge (Fast Track), Karauli in Sessions Case No. 36/2011 is quashed and set aside. 42. The accused appellant is acquitted of all the charges leveled against him. Accused appellant Veer Singh, if not required to be detained in connection with any other case, may be released forthwith. The impugned judgment dated 23.7.2011 passed by Additional Sessions Judge (Fast Track), Karauli in Sessions Case No. 36/2011 is quashed and set aside. 42. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellants (i) Hemu @ Hemraj; (ii) Amrit Lal @ Jhaptu; (iii) Shatrudhan; and (iv) Veer Singh are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before the Supreme Court.Appeal Nos. 1058/2006 and 684/2004, Partly Allowed - Appeal 996/2011 Allowed. *******