JUDGMENT : RAKESH SAKSENA, J. Since both the aforesaid appeals arise out of the common impugned judgment, this judgment shall govern the disposal of both the appeals. 2. Appellants have filed these appeals against the judgment dated 6th July, 2001 passed by First Additional Sessions Judge, Burhanpur in Sessions Trial No. 19/2000, convicting and sentencing them as under : CONVICTION SENTENCE Appellant No. 2 Ter Singh : Under sections 302, 323, 147 and 148 IPC. Imprisonment for life with fine of Rs. 500/-, in default one month rigorous imprisonment, three months rigorous imprisonment with fine of Rs. 100/-, in default seven days rigorous imprisonment & three months rigorous imprisonment with fine of Rs. 100/-, in default 15 days rigorous imprisonment. Rest of the Appellants : Under section 302 read with 149, IPC Imprisonment for life with fine of Rs. 500/-in default rigorous imprisonment for one month. Under sections 323, 147 and 148, IPC R.I. for three months with fine of Rs. 100/-, in default seven days rigorous imprisonment, rigorous imprisonment for three months with fine of Rs. 100/-, in default 15 days rigorous imprisonment. Sentences of imprisonment to run concurrently. 3. In short, the prosecution case is that on 8-11-1999, at about 6 P.M. in village Chainpura, hearing some noise, when complainant Dev Singh came out of his house, he saw appellants armed with axe and sticks beating his father Ram Singh. Appellant Ter Singh was armed with axe and other three were armed with sticks. When he and other people of village rushed to save Ram Singh, appellants ran away. They found Ram Singh dead. Dev Singh went to police station Nepanagar and lodged first information report Ex. P/23 at 8.45 P.M. A case under sections 147, 148 and 302 of the Indian Penal Code was registered against appellants. Police, after recording merg intimation reached the spot. Investigating Officer B. R. Taretiya (PW9) conducted inquest and recorded memorandum Ex. P/28. He sent the dead body for post-mortem examination to Govt. Hospital, Nepanagar. In the incident, Dhoom Singh (PW5) and Bhonga (PW8) were also injured, therefore, they were also sent for medical examination. After investigation and arrest of the appellants, charge-sheet was filed in the Court of Magistrate. The case was thereafter committed for trial. 4. On charge being framed, appellants abjured their guilt and pleaded false implication. Hospital, Nepanagar. In the incident, Dhoom Singh (PW5) and Bhonga (PW8) were also injured, therefore, they were also sent for medical examination. After investigation and arrest of the appellants, charge-sheet was filed in the Court of Magistrate. The case was thereafter committed for trial. 4. On charge being framed, appellants abjured their guilt and pleaded false implication. Though, no specific defence was put forward, yet it was suggested to prosecution witnesses that the sons of deceased themselves caused injuries to their father and when appellants intervened they were assaulted and also falsely implicated in the case. Appellants examined Gulab (DW1) in their defence. Prosecution, to substantiate its case, examined nine witnesses in the Court. Relying on the evidence adduced by the prosecution, learned Additional Sessions Judge held appellants guilty, convicted and sentenced them as mentioned earlier. Aggrieved by the impugned judgment of conviction and sentence, appellants have filed the present appeals. 5. Learned counsel for the appellants submitted that the conviction of appellants is illegal and unjustified. Learned trial Judge committed error in relying on the evidence of relative and interested witnesses. The evidence of eye witnesses is inconsistent and contradictory. They did not explain the injuries sustained by the appellants and suppressed the genesis of the occurrence. Witnesses deliberately involved five persons in the incident with the ulterior motive of attracting provisions of section 149 of the Indian Penal Code. Counsel submitted that the conviction of appellants deserved to be set aside. On the other hand, learned Panel Lawyer for the State supported the impugned judgment of conviction passed by the trial Court and submitted that there was no ground to call for any interference in the said judgment. 6. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully. 7. It has not been disputed that Ram Singh, the deceased died a homicidal death. It has been stated by Laxman (PW3), Dev Singh (PW4), Dhoom Singh (PW5), Dhyan Singh (PW6) and Bhonga (PW8) that appellants assaulted deceased with axe and sticks, as a result of which, he suffered injuries and died. Dev Singh lodged first information report Ex. P/23 with the police which was recorded by Sub Inspector B. R.Taretiya (PW9). PW9 conducted inquest proceedings and recorded memorandum Ex. P/25 in presence of witnesses and referred the dead body for post-mortem examination to Govt. Hospital, Nepanagar. Dr. Dev Singh lodged first information report Ex. P/23 with the police which was recorded by Sub Inspector B. R.Taretiya (PW9). PW9 conducted inquest proceedings and recorded memorandum Ex. P/25 in presence of witnesses and referred the dead body for post-mortem examination to Govt. Hospital, Nepanagar. Dr. Gopal Pandey (PW2) conducted autopsy and found following injuries on the body of deceased : External Injuries: (i) Incised wound on right occipito parietal region of scalp just near the mid line with regular margins in spindle shape with red blood clots. Size 3" x "½" x bone. Exposed and cut; corresponding external injuries parallel to mid line. (ii) Haematoma on right fronto parietal scalp of head 3" x 3.5". (iii) Lacerated wound on right arm 1.5" x "½" x "¼" with irregular margins and red blood clots. Internal Examination : Occipital bone was cut which was corresponding to injury No. 1. The size of cut was 1.5" x "½" x "¼". Cut corresponding to external injuries. Occipito parietal lobe of brain was injured resulting in haemorrhage due to cerebral vessels. Injury No. 1 was caused by hard and sharp object. Other injuries were caused by hard and blunt weapons. All the injuries were ante mortem in nature. Injury No. 1 was dangerous to life and was sufficient to cause death in the ordinary course of nature. In his opinion, the cause of death of deceased was coma resulting from brain injuries and haemorrhage. Death was homicidal in nature. Post-mortem examination report Ex. P/17 was written and signed by him. 8. From the aforesaid evidence, it was established that deceased died a homicidal death. 9. Dr. Gopal Pandey (PW2) deposed that on the same day, he also examined injuries of Bhonga (PW8), son of Ram Singh and found following injuries :- (i) Lacerated wound on occipital region 2.5 cm x 2 cm irregular margins with blood clot. (ii) Lacerated wound on left ear lobule 1.5 cm x "¼ cm x "¼ cm with blood clot. (iii) Bruise reddish on left shoulder posteriorly 3.5 x 3 cm. (iv) Swelling on left knee joint laterally 4.5 cm x 3.5 cm. Injuries were simple in nature. They were caused by hard and blunt object, duration within 24 hours. Advised for X-ray of occipital skull. Injury report is Ex. P/20. 10. On the same day, Dr. (iii) Bruise reddish on left shoulder posteriorly 3.5 x 3 cm. (iv) Swelling on left knee joint laterally 4.5 cm x 3.5 cm. Injuries were simple in nature. They were caused by hard and blunt object, duration within 24 hours. Advised for X-ray of occipital skull. Injury report is Ex. P/20. 10. On the same day, Dr. Gopal Pandey examined Dhoom Singh (PW5) and found following injuries vide his injury report Ex. P/21 :- (i) Lacerated wound with irregular margins on frontal region of head 5 cm x 2 cm x "½ cm. (ii) Bruise reddish on right chest 4.5cm x 3.5 cm. (iii) Swelling on left forearm 3.5 cm x 3 cm. (iv) Abrasion on left iliac-crest 2.5 cm x "½ cm. Injuries were simple in nature and were caused by hard and blunt object. Advised for X-ray of frontal head. 11. Now, it has to be seen whether appellants were responsible for causing injuries to deceased which resulted into his death and injuries to Dhoom Singh and Bhonga. 12. Learned counsel for the appellants submitted that the evidence of relative eye witnesses, which was discrepant and contradictory, was not reliable. It is true that the case of the prosecution is based on the evidence of relative witnesses, but where the presence of eye witnesses is proved to be natural and their statements appear truthful disclosure of actual facts leading to the occurrence, it shall not be permissible for the Court to discard the evidence of such related witnesses. There is no bar in law on examining family members or any other person as witnesses. What is expected from the Court is to keep in mind the relationship of witnesses and critically scrutinize their evidence before reaching a conclusion. In the instant case, witnesses were sons and nephew of the deceased, out of whom Dev Singh (PW5) and Bhonga (PW8) also had suffered injuries in the incident at the hands of appellants. Their injuries were proved by Dr. Gopal Pandey (PW2). In such circumstances, their presence at the spot could not be doubted. Otherwise also there appeared no reason for the said relative witnesses to be interested in sending the appellants to jail. Their injuries were proved by Dr. Gopal Pandey (PW2). In such circumstances, their presence at the spot could not be doubted. Otherwise also there appeared no reason for the said relative witnesses to be interested in sending the appellants to jail. It is true that according to suggestions put to eye witnesses by the defence, it were sons of deceased, who caused injuries to deceased, but such a plea was not put forward by the appellants in their statements recorded under section 313 of the Code of Criminal Procedure. Even it was not stated by Gulab (DW1) examined by the appellants as a eye witness of the occurrence. 13. Dev Singh (PW4), son of deceased stated that the house of his father was situated in front of his house. On 8-11-1999, on the day of 'Deepawali' at about 6 O' clock in the evening when he and his wife were in his house, appellants came there. Appellant Ter Singh had an axe and others had sticks. They picked up stones and threw on his brother Dhoom Singh. When his father came out of his house, Rem Singh dealt a stick blow to him. Thereafter, all the appellants assaulted him. Ter Singh dealt axe blow to him on his head. His father died and appellants ran away. At the time of occurrence, Dev Singh, Dhyan Singh and Bhonga were present. He went to police station and lodged report Ex. P/23. Though, number of contradictions and omissions were pointed out by the learned counsel for the appellants in his statement, but none appeared material. Evidence of Dev Singh (PW4) finds substantial corroboration from the first information report Ex. P/23, lodged by him soon after the occurrence. 14. Laxman (PW3), Dhoom Singh (PW5), Dhyan Singh (PW6) and Bhonga (PW8) though reiterated almost similar story about the occurrence, yet there appeared a few minor discrepancies in their statements. According to Laxman (PW3), as soon as appellants reached in front of the house of deceased they started pelting stones due to which Dhoom Singh and Bhonga suffered injuries. He stated that when deceased came out of his house, Rem Singh dealt a stick blow to him, as a result of which, he fell down, thereafter other accused persons, except Ter Singh, assaulted him with sticks. On the exhortation of Rem Singh, Ter Singh dealt axe blow to deceased, all of them then ran away. He stated that when deceased came out of his house, Rem Singh dealt a stick blow to him, as a result of which, he fell down, thereafter other accused persons, except Ter Singh, assaulted him with sticks. On the exhortation of Rem Singh, Ter Singh dealt axe blow to deceased, all of them then ran away. The fact that Rem Singh exhorted Ter Singh to cause axe injury to deceased was found missing in the police statement Ex. D/1 of Laxman. 15. Dhoom Singh (PW5) stated that his house and his father's house are separate, but are in the same vicinity. According to him, in the evening, he saw accused persons near his house, uttering that they had to see and beat Ram Singh. Ter Singh had an axe and others had sticks. They all assaulted his father. Ter Singh dealt axe blow on his head due to which he fell down. Sohan and Bhikla pelted stones at him and his brother Bhonga. Their injuries were examined by the doctor. This witness gave a different version by saying that it was not correct that at first stones were pelted, thereafter his father came out of his house, whereas in his police statement he stated that at first he sustained stone injuries, thereafter his father came out. 16. Dhyan Singh (PW6) stated, on way when he heard some persons shouting that Rem Singh has to be assaulted, he went near the house of Ram Singh and saw appellants armed with axe and sticks assaulting deceased, Dhoom Singh and Bhonga. Ter Singh dealt axe blow on the head of deceased, whereas other accused persons assaulted him with sticks. In para-7 of his cross examination, he stated that he did not see anybody beating to other person except deceased. Though, he stated that he saw Ter Singh assaulting deceased with axe, but at the same time he admitted that when he reached, he saw deceased lying down injured. He did not see who assaulted him, but he saw appellants standing there. 17. According to Bhonga (PW8), he was in the same house in which deceased resided. When he heard people shouting to see Rem Singh, he and his father came out of the house, at once appellants started beating his father. Ter Singh was armed with axe, whereas others were wielding sticks. 17. According to Bhonga (PW8), he was in the same house in which deceased resided. When he heard people shouting to see Rem Singh, he and his father came out of the house, at once appellants started beating his father. Ter Singh was armed with axe, whereas others were wielding sticks. When Ter Singh dealt axe blow on the head of his father, he fell down. He stated that appellants also pelted stones by which he and Dhoom Singh also suffered injuries. When accused persons ran away, Dev Singh went to police station to lodge report. 18. Learned counsel for the appellants submitted that the aforesaid witnesses stated that except appellant Ter Singh, others assaulted deceased with sticks, but on post-mortem examination of the body of deceased only three injuries were found by Dr. Pandey (PW2). Only two injuries caused by hard and blunt object were found, besides one injury caused by sharp edged weapon on the head. Though, Laxman (PW3) and Dev Singh (PW4) stated that appellant Rem Singh dealt a stick blow to deceased, but none of the other witnesses stated so. According to Dhoom Singh (PW5), Dhyan Singh (PW6) and Bhonga (PW8), all the accused persons assaulted deceased with sticks. Learned counsel for the appellants, therefore submitted that the evidence of eye witnesses was belied by the medical evidence. Had all the appellants other than Ter Singh assaulted deceased with sticks, at least four injuries by hard and blunt object would have been found on the body of deceased. Out of five eye witnesses, only two witnesses named Rem Singh to have inflicted stick blow to deceased, but they did not say that he assaulted deceased on the head. Except the injury caused by axe, other two injuries found on the body of deceased were simple in nature. Learned counsel submitted that in these circumstances it was not possible to hold that the common object of unlawful assembly allegedly formed by accused persons was to commit murder of deceased. 19. Learned counsel for the State, on the other hand, submitted that all the accused persons armed with sticks and axe came at the spot forming unlawful assembly and attacked deceased. 19. Learned counsel for the State, on the other hand, submitted that all the accused persons armed with sticks and axe came at the spot forming unlawful assembly and attacked deceased. Eye witnesses stated that they were shouting to teach a lesson to deceased, therefore, it was rightly held by the trial Court that the common object of unlawful assembly formed by the accused persons was to commit murder of deceased. 20. On a close and critical examination of the evidence of eye witnesses, we find that the evidence in respect of the fact that accused persons were shouting to teach a lesson to deceased is discrepant, contradictory and unreliable. Almost all the eye witnesses improved upon their earlier version in saying that all the accused persons said "Ram Singh ko marna hai". Otherwise also the word "Marna hai" can be interpreted both ways i.e. to beat or to kill, therefore, even if this piece of evidence is accepted, it cannot be held that these words indicated the object of the assembly to kill the deceased. From the evidence of eye witnesses, it seems that accused persons when reached near the house of deceased, started pelting stones by which Dhoom Singh (PW5) and Bhonga (PW8) suffered injuries and that none of the accused assaulted them by sticks or axe, except deceased. According to Laxman (PW3) and Dev Singh (PW4), when accused persons pelted stones and caused injuries to Dhoom Singh and Dhyan Singh, deceased came out and then at once Rem Singh dealt a stick blow to him, as a result of which, he fell down, thereafter Ter Singh dealt axe blow on his head. Evidence of Laxman (PW3) about exhortation by Rem Singh or other accused persons to Ter Singh for causing injury to deceased by axe is inconsistent, contradictory to the evidence of other witnesses and is unreliable. 21. Merely because Laxman (PW3) and Dev Singh (PW4) stated that Rem Singh assaulted deceased with stick due to which he fell down and thereafter, Ter Singh dealt axe blow on the head of deceased, it cannot be held that Rem Singh intended to cause death of deceased. Though, it has been stated by the witnesses that all the accused persons, who were armed with sticks assaulted deceased, yet it seems doubtful in view of the evidence of Dr. Though, it has been stated by the witnesses that all the accused persons, who were armed with sticks assaulted deceased, yet it seems doubtful in view of the evidence of Dr. Pandey, who found only two simple injuries on the body of deceased caused by hard and blunt object. Therefore, in view of the above evidence though we find it established that appellants formed an unlawful assembly, yet we are unable to hold that the common object of assembly was to commit murder of deceased. 22. Since appellant Ter Singh dealt axe blow from the sharp edge side on the head of deceased which resulted into his death, we find that the learned trial Judge committed no error in holding him guilty under section 302 of the Indian Penal Code. His conviction under section 302 of the Indian Penal Code is, therefore, affirmed. 23. For the reasons stated in paragraph 21 we hold that the conviction of appellants Rem Singh, Mal Singh, Sohan and Bhikla under section 302 read with section 149 of the Indian Penal Code is not justified. However, since, they formed unlawful assembly armed with weapons like sticks, it has to be held that the common object of the unlawful assembly was to cause at least grievous hurt to deceased and other injured persons. Accordingly, the conviction and sentence of aforesaid appellants for the charge under section 302/149 of the Indian Penal Code are set aside, instead they are convicted under section 325/149 of the Indian Penal Code and sentenced to rigorous imprisonment for six months. 24. Conviction and sentence of all the appellants under sections 323, 147 and 148 of the Indian Penal Code are affirmed. 25. In the result, Criminal Appeal No. 1480/2001 so far as it relates to appellant No. (2) Ter Singh, is dismissed. However, this appeal in respect to appellant Nos. (1) Rem Singh (3) Mal Singh (4) Sohan, and Criminal Appeal No. 417/2004 of Bhikla, as indicated above, are partly allowed. A copy of this judgment be kept in record of Criminal Appeal No. 417/2004.