JUDGMENT 1. - To challenge the conviction recorded and sentence awarded under the judgment and order dated 1.12.2006 passed by learned Additional Sessions Judge, Raisinghnagar, this appeal is preferred. 2. Briefly stated, facts of the case are that on 28.9.2004 at about 03:30 PM a written report (Ex.P/20) was submitted at Police Station Raisinghnagar by Shri Jaipal (PW-6) with assertion that while coming with his brother Omprakash from Mandi, after purchasing certain goods Ramswaroop, Vinod Kumar and Hansraj armed with `kapa' came and gave `kapa' blows to his brother Omprakash indiscriminately. Accused Ramswaroop then made a gun shot, consequently Omprakash died at the spot. All the three persons then fled from the site. 3. On basis of the report, an FIR was registered and investigation commenced. During the course of investigation the corpus of Omprakash was subjected to an autopsy and as per report of that the cause of death was shock due to hemorrhage of brain caused by fire arm injury. The deceased also received 17 other injuries out of which 13 were incised wounds received from sharp edged weapon. 4. All the three accused persons were arrested on 28.9.2004 itself. At the instance of accused Ramswaroop a pistol and certain cartridges were recovered and the recovery memo of that is available on record as Ex.P/5. Blood stained pant and shirt of this accused were also recovered as per recovery memo Ex.P/17. On basis of the information given by accused Vinod a `kapa' was recovered as per Ex.P/7. His pant and shirt having blood stains were also recovered as per Ex.P/18. Accused Hansraj who too was arrested on 28.9.2004, disclosed about `kapa' said to be used in commission of crime. The recovery of that was accordingly made as per Ex.P/35. The pant and shirt worn by this accused at the time of incident having blood stains were also recovered as per document Ex.P/1. The recovered articles were sent for their forensic and serological examination to the Forensic Science Laboratory and as per FSL report Ex.P/37 the pant, shirts and `kapas' recovered at the instance of the accused persons were having blood stains of group `A'. The FSL report Ex.P/38 pertains to ballistic examination of the pistol recovered at the instance of accused Ramswaroop. According to it, the pistol recovered was a serviceable fire arm and one 8 mm cartridge case was fired from it. 5. The FSL report Ex.P/38 pertains to ballistic examination of the pistol recovered at the instance of accused Ramswaroop. According to it, the pistol recovered was a serviceable fire arm and one 8 mm cartridge case was fired from it. 5. The investigating agency after completing the investigation submitted a police report as per provisions of Section 173 Cr.P.C. The Court after providing opportunity of hearing to the accused persons framed charges against them for the offences punishable under Section 302 and 341 Indian Penal Code. A charge relating to the offence punishable under Section 3/25(1-B)(a) of the Arms Act was framed against accused Ramswaroop. On denial of the charges, trial commenced as desired. 6. The prosecution supported its case with the aid of 12 (PW-1 to PW-12) witnesses and by getting several documents prepared during the course of investigation exhibited. Opportunity was given to the accused persons to explain the adverse and incriminating circumstances against them in prosecution evidence. Accused Vinod Kumar while alleging the entire prosecution evidence as false stated that he was implicated in the case falsely. Accused Ramswaroop also termed the entire prosecution evidence false and denied recovery of pistol and cartridges at his instance. Accused Hansraj also pleaded his innocence by stating the evidence adduced by the prosecution false and concocted. In defence statements of DW-1 Shri Deshraj were recorded. 7. The trial court after examining the entire evidence convicted the accused persons for the offence punishable under Section 302 Indian Penal Code and awarded life term imprisonment with a fine of Rs. 1000/- each and further to undergo one month's simple imprisonment in the event of default in payment of fine. The accused were also convicted for the offence punishable under Section 341 Indian Penal Code. Accused Ramswaroop was convicted for an offence punishable under Section 3/25(1-B)(a) of the Arms Act also and was awarded sentence to undergo one year's simple imprisonment with a fine of Rs. 500/-. Being aggrieved by the conviction recorded and sentence awarded, this appeal is preferred. 8. The argument advanced by counsel for the appellants is that no independent witness has supported the prosecution case, as such, the conviction recorded by relying upon the testimony of an interested witness is erroneous. 500/-. Being aggrieved by the conviction recorded and sentence awarded, this appeal is preferred. 8. The argument advanced by counsel for the appellants is that no independent witness has supported the prosecution case, as such, the conviction recorded by relying upon the testimony of an interested witness is erroneous. It is asserted that the prosecution supported its case with the aid of four eye witnesses, but PW-1 Khetpal and PW-2 Mukhram did not support the prosecution case and they were declared hostile. PW-3 Bhagaram was disbelieved even by the trial court, as such, the sole evidence against the appellants is the version narrated by PW-6 Jaipal, who is real brother of deceased Omprakash. Being in such a close relation with deceased, he is an interested witness and, therefore, merely on basis of the statement given by this witness, conviction could have not been recorded. In alternative, it is also argued that the cause of death of Omprakash is fire arm injury i.e. assigned to accused Ramswaroop, as such, the other accused persons could have not been convicted for the offence punishable under Section 302 Indian Penal Code. 9. While opposing the appeal, it is stated by learned Public Prosecutor that the accused persons with all preparation made an attack on deceased Omprakash with deadly weapons, and the Omprakash died at the spot due to gun shot made by Ramswaroop, but ample evidence is available to establish the intention of all the three accused persons to cause death of Omprakash. It is asserted that eye witness Jaipal (PW-6) made a written report, immediately after the occurrence of the incident giving all necessary details of the incident and maintained the same till last. The medical evidence and recovery of articles at the instance of accused persons too corroborate the same and as such there is no reason to disbelieve him. 10. Heard learned counsel for the appellants, learned Public Prosecutor and also examined the record. 11. The corpus of deceased Omprakash as per the medical evidence was having following injuries:- 1. Lacerated wound (wound of entrance) 1.5 cm x 1 cm x cavity deep, upper part of occipital region of scalp. Right side grievous and dangerous to life, cause by fire arm. 2. 11. The corpus of deceased Omprakash as per the medical evidence was having following injuries:- 1. Lacerated wound (wound of entrance) 1.5 cm x 1 cm x cavity deep, upper part of occipital region of scalp. Right side grievous and dangerous to life, cause by fire arm. 2. Lacerated wound (wound of exit) 20 cm x 10 cm x cavity deep with avulsion of facial and scalp skin, soft tissues, bones brain tissue on left side covering left temporal parietal occipital and auricular part. Grievous, dangerous to life by fire arm. 3. Incised wound 6 cm x 3 cm x bone deep with fractured leg bones left leg middle part, grievous sharp. 4. Incised wound 10 cm x 2 cm x muscle deep left foot laterally, simple sharp. 5. Incised wound 5 cm x 1 cm x bone deep left knee ante, simple sharp. 6. Incised wound 3 cm x 1 cm x muscle deep, left knee medially, simple sharp. 7. Incised wound 8 cm x 3 cm x bone deep with leg bones right leg lower part grievous sharp. 8. Incised wound 2.5 cm x 1 cm x bone deep right leg upper part simple sharp. 9. Incised wound 3 cm x 1 cm x bone deep right leg upper part, simple sharp. 10. Incised wound 5 cm x 2 cm x bone deep with right patella, right knee, grievous sharp. 11. Incised wound 1.5 cm x 0.5 cm x muscle deep, right knee, antero medially simple sharp. 12. Incised wound at the left thumb with complete amputation, grievous sharp. 13. Incised wound 3 cm x 1 cm x muscle deep, right forearm, lower part, simple sharp. 14. Abrasion 4 cm x 3 cm right arm lower part, laterally simple blunt. 15. Incised wound 4 cm x 2.5 cm x bone deep with scalp bone vertex, grievous sharp. 16. Abrasion 5 cm x 2 cm left scapula region, simple blunt. 17. Incised wound 4 cm x 1 cm x muscle deep upper part body, left side, simple sharp. 12. In opinion of the medical board that conducted autopsy, the cause of death was shock due to hemorrhage caused by fire arm injury i.e. assigned to accused Ramswaroop. 13. It is not in dispute that eye witnesses PW-1 Khetpal and PW-2 Mukhram did not support the prosecution case and they were declared hostile. 12. In opinion of the medical board that conducted autopsy, the cause of death was shock due to hemorrhage caused by fire arm injury i.e. assigned to accused Ramswaroop. 13. It is not in dispute that eye witnesses PW-1 Khetpal and PW-2 Mukhram did not support the prosecution case and they were declared hostile. An another eye witness PW-3 Bhagaram was not found trustworthy. However, PW-6 Jaipal in very definite terms narrated the entire incident while deposing before the court. As per this witness, on 28.9.2004 he alongwith his brother Omprakash went to Raisinghnagar Mandi for purchasing certain goods. They were returning to Bus Stand after making necessary purchase and while they were just close to Kalda Nursing Home, accused Ramswaroop, Hansraj and Vinod Kumar armed with `kapas' came and attacked Omprakash with `kapas' indiscriminately. Ramswaroop then brought out a pistol from pocket and made a fire from it, resulting death of Omprakash. This witness then immediately rushed to the police station and submitted the written report Ex.P/20. The police team came at the spot of occurrence with this witness and initiated investigation. As per this witness, accused persons were keeping enmity with deceased from last 8-10 years and certain cases too were pending between them. This witness was subjected to a detailed cross examination, but he quite confidently maintained his version as stated in chief. As per PW-6 Jaipal, all the three accused persons first gave `kapa' blows and then Ramswaroop caused a fire arm injury. As per medical evidence the deceased was having several incised wounds beside the fire arm injury. These injuries in addition with the recovery of `kapas' at the instance of accused Hansraj and Vinod clearly indicate their involvement in the crime in question. The `kapas' recovered at their instance and the clothes worn by them at the time of incident were having blood stains matching with the blood group of deceased Omprakash. This fact further strengthens the prosecution case. At the instance of accused Ramswaroop a pistol was recovered and that was serviceable. A fired cartridge recovered from the spot, as per FSL report, was fired from this pistol. The circumstantial evidence available very definitely corroborates the statement given by eye witness Jaipal. Looking to this factual background, we do not find any just reason to disbelieve this witness merely on the count that he happens to be a close relative of deceased. 14. The circumstantial evidence available very definitely corroborates the statement given by eye witness Jaipal. Looking to this factual background, we do not find any just reason to disbelieve this witness merely on the count that he happens to be a close relative of deceased. 14. The important question now requires consideration is that whether the trial court is right in convicting all the three accused persons for the offence punishable under Section 302 Indian Penal Code? 15. As already stated, the cause of death of Shri Omprakash was hemorrhagic shock due to fire arm injury, which is assigned accused Ramswaroop. The other accused gave `kapa' blows causing incised wounds. The incised wounds available on the body of Late Shri Omprakash were in quite good number, but those are not the cause of death. As per the medical evidence, the wounds other than the gun shot are also not shown as sufficient to cause death in natural course of life. Except the injury No. 15 i.e. "incised wound 4 cm x 2.5 cm x bone deep with scalp bone vertex, grievous sharp", are not on vital parts too, as such, we are of the view that the accused other than Ramswaroop could not have been convicted under Section 302 Indian Penal Code simplicitor. However, sufficient evidence is available to gather common intention of accused persons to cause death of Omprakash. 16. It is well settled that to establish common intention there should be participation of more than one person in commission of crime, there must be prior meeting of minds, a prior concert for commission of criminal act, the meeting of mind for sharing common intention may be developed and arrived at the spur of moment or even while in the course of crime and it is not necessary to prove that other accused participating in a crime had indulged in overt acts. 17. In the case in hand the accused persons armed with deadly weapons like `kapa' and pistol intercepted the deceased on road and gave severe `kapa' blows indiscriminately. During the course of committing crime accused Ramswaroop gave a fire arm injury causing death. Coming of these three persons with deadly weapons, assaulting indiscriminately with such weapons and then giving a fire arm shot clearly indicate pre-meeting of minds of the accused persons to cause the crime. During the course of committing crime accused Ramswaroop gave a fire arm injury causing death. Coming of these three persons with deadly weapons, assaulting indiscriminately with such weapons and then giving a fire arm shot clearly indicate pre-meeting of minds of the accused persons to cause the crime. True it is, the fire arm injury was caused by accused Ramswaroop, but at least seventeen injuries with sharp edged weapon were given by two other accused persons. The huge number of injuries given by sharp edged weapon further substantiates the fact that all the persons had only one intention i.e. to cause death of Omprakash. Accused Vinod Kumar and Hansraj, thus, deserves to be convicted for the offence punishable under Section 302/34 Indian Penal Code. 18. Accordingly, the appeal is dismissed with modification in the terms that conviction of accused Vinod Kumar and Hansraj is made under Section 302/34 instead of Section 302 Indian Penal Code. The sentence awarded by the trial court shall remain unchanged.Appeal dismissed. *******