JUDGMENT : RAKESH SAKSENA, J. Appellants have filed this appeal against the judgment dated 16th February, 2005 passed by VI Additional Sessions Judge, Sagar in Sessions Trial No. 124/2002 convicting the appellants under sections 302/149, 324/149, 323/149, 323/149 and 148 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 1000/-, in default simple imprisonment for 3 months, rigorous imprisonment for 6 months, rigorous imprisonment for 4 months, rigorous imprisonment for 4 months and rigorous imprisonment for 3 months on each count, respectively. 2. In short, prosecution case is that on 18-12-2001, Inder Singh Lodhi, Sibbu, Brajesh Mishra and Shankar Mishra were travelling in a bus to village Baraitha. At about 5:15 p.m. when bus stopped at bus stand Barethi, they alighted from the bus and went at the betel shop of Rajesh Maharaj. Accused Sheikh Basheer, who had past enmity with Inder Singh, was also present there. A hot altercation ensued between Inder Singh and Basheer. Basheer raised an alarm that Inder Singh and his associates were beating him, hearing which, his son Waseem and other accused persons armed with swords, iron pipe, Baka, lathis and gun proceeded towards him. Out of fear, Inder Singh, Shankar, Brajesh and Sibbu boarded the bus and after closing the door of bus, asked driver to move from there. When bus moved to some distance, on the point of gun, accused Afzal asked the driver to stop the bus. Other persons pelted stones on the bus whereby window glasses of the bus got broken. Accused Basheer, Waseem, Imran, Aethu and Waheed entered the bus, Basheer caught the hair of Inder Singh and Waseem, Imran, Waheed and Aethu assaulted Inder Singh with swords, iron pipe and Baka, as a result of which, he suffered injuries on his head, hands and legs. They dragged and dropped Inder Singh out of the bus and then Shakeel, Khalid, Pappu, Jakir and Bablu assaulted Shankar, Brajesh and Sibbu with lathis. It is alleged that Basheer inflicted injuries on the eyes of Inder Singh with a sword. When Inder Singh died, all the accused persons went away. 3. On receiving information about the occurrence, Sub Inspector Anand Chouhan (PW-31) reached at the spot where Shankar Prasad (PW-28) lodged Dehati Nalishi Ex.P/43 with him. Marg intimation Ex.P/46 was also recorded. Injured persons were sent to Government hospital, Banda. When Inder Singh died, all the accused persons went away. 3. On receiving information about the occurrence, Sub Inspector Anand Chouhan (PW-31) reached at the spot where Shankar Prasad (PW-28) lodged Dehati Nalishi Ex.P/43 with him. Marg intimation Ex.P/46 was also recorded. Injured persons were sent to Government hospital, Banda. On the basis of Dehati Nalishi, first information report Ex.P/45 was recorded against the accused persons at police station, Baraitha. 4. Dr. R. K. Pandey of Community Health Centre, Banda examined the injuries of Shankar, Brajesh and Sibbu and recorded the same in their reports Ex.P/48, Ex.P/49 and Ex.P/50. On the same day, he also examined the injuries of injured accused Shakeel Raza and recorded injury report Ex.P/47. After inquest proceedings, dead body of Inder Singh was sent for post-mortem examination to Government hospital, Banda. Dr. Munnalal Jain (PW-30) conducted autopsy of the body and gave post-mortem report Ex.P/51. In the course of investigation, spot map was prepared, blood and stones were seized from the spot, window glasses of the bus were found broken, accused persons were arrested and on the basis of their information, weapons of offence were seized. After completion of investigation, charge-sheet against the accused persons was filed in the Court of Magistrate and the case was thereafter committed for trial. 5. On charges being framed, accused persons abjured their guilt and pleaded false implication. According to them, at the time of occurrence, when Sheikh Basheer was getting the construction work of a Mosque done, suddenly Inder Singh and his associates got the bus stopped there and started abusing him. When accused Shakeel tried to board the bus, Inder Singh and Brajesh pulled him out and Sibbu assaulted him with a Baka on his head. When Basheer shouted, the labourers who were working in the Mosque and the by-passers pelted brick bats, stones etc. at them. With a view to defend Shakeel somebody from the mob snatched Baka from the hands of Sibbu and caused injuries to Inder. Sheikh Nasir @ Aethu took unconscious Shakeel to police station wherefrom he was sent to hospital for treatment. Sheikh Nasir lodged a report (Ex.D/5) against Inder and other persons at police station. Other accused persons were falsely implicated because of their being relatives of Basheer and Shakeel. In their defence, accused persons examined Sheikh Ramzan (DW-1), Shalakram (DW-2), Sukhlal (DW-3), Dr. C. K. Panse (DW-4) and Dr. Sheikh Nasir lodged a report (Ex.D/5) against Inder and other persons at police station. Other accused persons were falsely implicated because of their being relatives of Basheer and Shakeel. In their defence, accused persons examined Sheikh Ramzan (DW-1), Shalakram (DW-2), Sukhlal (DW-3), Dr. C. K. Panse (DW-4) and Dr. K. R. Sahai (PW-5). 6. Learned trial Judge upon trial and after appreciating the evidence on record, held the accused persons guilty, convicted and sentenced them as mentioned above. Aggrieved by their conviction and sentence, appellants have filed this appeal. 7. Shri Sharad Verma, learned counsel for the appellants, submitted that learned trial Judge did not appreciate the evidence in correct perspective and held the appellants guilty. Learned Judge failed to consider that the serious injury suffered by accused Shakeel in the same incident was not explained by the prosecution. It was apparent from the evidence on record that the incident of assault on deceased occurred when accused Shakeel was assaulted by Sibbu (PW-2) with a Dhariya/Katarna on his head. In these circumstances, it could not have been held that accused/appellants intended to commit murder of Inder Singh. In fact a mob of people present near the place of occurrence caused injuries to deceased and other injured persons. It was a case of exercise of right of private defence or atleast exceeding the same in a situation of sudden erupt of quarrel. Learned counsel submitted that the evidence of eyewitnesses was further unreliable because it suffered with material contradictions and discrepancies. The conviction of appellant Sheikh Khalid was illegal as none of the witnesses stated about his participation in the incident. On the other hand, Shri Umesh Pandey, learned Government Advocate submitted that the guilt of the appellants was established by the evidence of eyewitnesses Sibbu (PW-2), Brajesh (PW-3), Prakash Vishwakarma (PW-4) and Vanshi (PW-5). It cannot be held that accused persons had any right of private defence since they acted as aggressors. Learned Government Advocate supported the impugned judgment of conviction and submitted that there was no ground calling for interference in the same. 8. We have heard the learned counsel for the parties at length, perused the impugned judgment and the evidence on record carefully. 9. It has not been disputed that Inder Singh died and that he met with a homicidal death. 8. We have heard the learned counsel for the parties at length, perused the impugned judgment and the evidence on record carefully. 9. It has not been disputed that Inder Singh died and that he met with a homicidal death. It has been stated by Sibbu (PW-2) and Brajesh (PW-3) that on 18-12-2001, they and Inder Singh, the deceased were assaulted by accused persons with swords, Katarna and rod as a result of which they suffered injuries. Inder Singh died at the spot. Dehati Nalishi Ex.P/43 was lodged by Shankar (PW-28) in this regard. Investigating Officer Anand Chouhan (PW-31) recorded Dehati Nalishi and conducted inquest. He recorded injuries in inquest memorandum Ex.P/7 and sent the body of Inder Singh to hospital for post-mortem examination. Dr. Munnalal Jain (PW-30) conducted post-mortem of the body and found following injuries on it : (i) Incised wound 16 x 5 x 2.5 cm x brain deep. Injury was extending from left eye to left parietal region of the skull. Left eye was protruding out and left frontal and parietal bones of the skull were cut. (ii) Incised wound 8 x 1.5 cm on right frontal bone was cut upto the cerebral hemisphere of the brain. Right eye was depressed inside the orbit. (iii) Incised wound 6 cm x 1cm x orbital bone deep on the outer side of right eye. (iv) Incised wound 4 x 1 cm x orbital bone deep on right side. (v) Incised wound 5 x 1 cm x bone deep on fronto parietal region of the skull. (vi) Incised wound 13 x 3 cm between second and third fingers of left metacarpal space. The hand was divided into two parts by the injury. (vii) Incised wound 10 x 5 cm on left arm. Injury was deep upto alna and radius bones which were cut along with muscles. On internal examination, frontal and parietal bones of both the sides were fractured and blood was present around the brain. All the injuries were ante-mortem and homicidal in nature. Cause of death was shock due to injuries to brain. Injuries were caused by hard and sharp weapon. Postmortem report is Ex.P/51. 10. From the aforesaid evidence, it has been amply established that deceased died a homicidal death. 11. Now the question before us is whether appellants caused the death of deceased ? 12. Cause of death was shock due to injuries to brain. Injuries were caused by hard and sharp weapon. Postmortem report is Ex.P/51. 10. From the aforesaid evidence, it has been amply established that deceased died a homicidal death. 11. Now the question before us is whether appellants caused the death of deceased ? 12. Prosecution examined Sibbu (PW-2), Brajesh Brahman (PW-3), Prakash Vishwakarma (PW-4), Vanshi (PW-5), Gokal Patel (PW-6), Babulal Jain (PW-7), Parmal Singh (PW-8), Harbal Singh (PW-9), Lakhanlal (PW-10), Rajesh Brahman (PW-11), Rajkumar (PW-24) and Shankar (PW-28) as eyewitnesses of the occurrence. Complainant Shankar (PW-28), Gokal Patel (PW-6), Babulal Jain (PW-7), Parmal Singh (PW-8), Harbal Singh (PW-9) and Rajkumar (PW-24) did not support the prosecution case in the Court, therefore, they were declared hostile. The case, therefore, mainly rested on the evidence of Sibbu (PW-2), Brajesh Brahman (PW-3), Prakash Vishwakarma (PW-4) and Vanshi (PW-5). 13. Sibbu (PW-2) deposed that he, Inder, Shankar and Brajesh had boarded the bus from Gaira Thigadda for going to Baraitha. At about 5:00 p.m. when bus stopped at Barethi bus stand, they alighted from the bus and went to betel shop. Accused Basheer who was present there indulged in altercation with Inder and shouted that Inder and his associates were beating him. They boarded the bus and bus moved to some distance, but in front of a Mosque, accused persons stopped the bus and pelted stones and brick bats on it whereby window glasses of bus got broken. All the passengers left the bus and ran away. Basheer, Imran, Waseem and Waheed entered the bus and assaulted Inder with swords etc.. They dragged and dropped Inder out of the bus. When he, Shankar and Brajesh tried to defend Inder, they were also assaulted whereby they also suffered injuries. Basheer caused injuries on the eyes, hands and legs of Inder. As a result of injuries, Inder died. 14. Brajesh Brahman (PW-3) also reiterated the same story. According to him, when he, Inder, Sibbu and Shankar went at the betel shop of Rajesh Brahman, out of past enmity between Inder and Basheer, Basheer indulged into altercation with Inder and shouted that the associates of Inder were beating him. Hearing his cries, Waseem, Imran, Shakeel, Waheed, Aethu, Bablu and Jakir rushed towards them. They had weapons like sword, iron pipe, lathis and Baka in their hands. Hearing his cries, Waseem, Imran, Shakeel, Waheed, Aethu, Bablu and Jakir rushed towards them. They had weapons like sword, iron pipe, lathis and Baka in their hands. When he saw these persons approaching, they all entered the bus and requested the driver to move the bus. After some distance, accused persons stopped the bus. Accused Afzal pointed a gun at the driver and others pelted stones on the bus. Accused Basheer, Aethu, Waseem, Shakeel, Pappu, Jakir, Imran and Bajju entered the bus. Basheer caught hair of Inder and started beating him. They threw him out of the bus and assaulted him with sword. When he tried to save Inder, he was also assaulted. Similar statement was given by Prakash Vishwakarma (PW-4) and Vanshi (PW-5). 15. Learned counsel for the appellants argued that there were discrepancies in the evidence of aforesaid eyewitnesses, therefore, their evidence was not reliable. 16. It is true that Sibbu (PW-2) deposed about the participation of accused Basheer, Imran (Juvenile), Waheed, Waseem, Nasir @ Aethu, Jakir and Afzal whereas Brajesh (PW-3), in addition to aforesaid accused persons, also named Bablu, Yakoob, Saleem @ Pappu and Nazeer. Vanshi (PW-5) named Basheer, Waseem, Aethu, Afzal, Jakir and Bablu and Prakash (PW-4) named Basheer, Waseem, Yakoob and Nazeer only. Prakash Vishwakarma (PW-4) admitted that 4-5 other persons were also there but he did not know their names. Merely because aforesaid witnesses did not describe overt acts of all the accused persons, in our opinion, it cannot be held that they did not participate in the incident. Accused Bablu was not named by Sibbu but he was named by Vanshi (PW-5) also. Similarly though Yakoob was not named by Sibbu (PW-2), but he was named by Prakash (PW-4). It is, however, important to note that name of accused Saleem @ Pappu was mentioned only by Brajesh (PW-3). None of the other eyewitnesses named him, as such there appeared no corroboration of the evidence of Brajesh (PW-3) in naming accused Pappu @ Saleem. Similarly none of the aforesaid eyewitnesses named accused Sheikh Khalid as an assailant. Therefore, it seems doubtful that accused Pappu @ Saleem and Sheikh Khalid participated in the incident. 17. Next submission made by learned counsel for the appellants is that the genesis of the occurrence, as given by prosecution, was doubtful since none of the prosecution witnesses explained injuries received by accused Shakeel in the same incident. 18. Therefore, it seems doubtful that accused Pappu @ Saleem and Sheikh Khalid participated in the incident. 17. Next submission made by learned counsel for the appellants is that the genesis of the occurrence, as given by prosecution, was doubtful since none of the prosecution witnesses explained injuries received by accused Shakeel in the same incident. 18. Learned counsel for appellants did not challenge the presence of Sibbu (PW-2), Brajesh (PW-3), Prakash (PW-4) and Vanshi (PW-5) at the place of occurrence. They all were travelling in the same bus in which the incident occurred and apart from it, Brajesh and Sibbu also suffered injuries in the same incident. 19. From the evidence of investigating officer Anand Chouhan (PW-31), it is revealed that accused Shakeel Raza was also found injured along with other injured persons viz. Shankar, Brajesh and Sibbu. According to him, about the injury of Shakeel Raza, no first information report could be recorded because he was unconscious at that time and was unable to speak. However, on the information given by Sheikh Nasir @ Aethu, first information report at Crime No. 77/2001 was recorded on 20-12-2001. The said first information report was exhibited as Ex.D/5. According to Ex.D/5, Sibbu (PW-2) had caused injury on his head with a Baka. A Dharia/Katarna was also seized lying on the spot vide seizure memo Ex.P/11. He stated that he tried to gather information as to how accused Shakeel Raza suffered injury, but he remained unsuccessful. He further stated that prosecution witnesses Sibbu, Brajesh and Shankar did not disclose how Shakeel suffered injury. Injury of Shakeel Raza was examined by Dr. R. K. Pandey who was posted at Community Health Centre, Banda. Since Dr. Pandey was not available, injury report Ex.P/47 of Shakeel was proved by Dr. R. S. Bhojak (PW-29). 20. Dr. R. S. Bhojak (PW-29) happened to be the same doctor who proved the injury reports of Shankar, Brajesh and Sibbu. On the basis of report Ex.P/47, he deposed that Shakeel was found to have one incised wound 12.8cm x 1.5 cm x bone deep on left fronto parietal region. The said injury was caused by hard and sharp edged weapon. The injured was referred to Surgical Specialist. Investigating Officer Anand Chouhan (PW-31) stated that copy of report Ex.D/5 lodged by Sheikh Nazeer was filed by him with a charge-sheet. The said injury was caused by hard and sharp edged weapon. The injured was referred to Surgical Specialist. Investigating Officer Anand Chouhan (PW-31) stated that copy of report Ex.D/5 lodged by Sheikh Nazeer was filed by him with a charge-sheet. According to Ex.D/5, after quarrel between deceased and Basheer when deceased and his associates were hurling filthy abuses from the bus, Shakeel tried to enter the bus, but deceased and other persons caught hold of him and Sibbu (PW-2) dealt a blow of sharp edged Baka on his head as a result of which Shakeel became unconscious and fell on the ground. Deceased and his associates continued to extend threats and abuses to the persons present there. 21. Learned counsel for the State submitted that injury to Shakeel might have been caused when accused persons had stopped the bus in which deceased was travelling, therefore, it cannot be held that deceased was assaulted in exercise of right of private defence. Initially altercation between deceased and accused Basheer had taken place at the betel shop, at the bus stand, but the deceased was assaulted when he was in the bus and the bus had proceeded to some distance. On the other hand, learned counsel for the appellants submitted that the incident was a continuous transaction from altercation to assault on deceased. Deceased would not have been assaulted so badly, had Shakeel not been assaulted by his associates. From the evidence of eyewitness Prakash Vishwakarma (PW-4), he pointed out that after altercation between Basheer and deceased, a mob of about 50-100 persons had attacked the bus and 25 persons had entered it. This witness stated that at the time of incident, Shakeel had suffered injury by Baka, but he could not say who caused that injury to him. He admitted that when Shakeel suffered injury by Baka, accused Basheer shouted that deceased and his associates were assaulting them and thereafter a mob of people assembled and caused injuries to deceased. 22. Accused Basheer in his statement recorded under section 313, Criminal Procedure Code. stated that at the time of occurrence while he was busy in construction work of Mosque, suddenly on the road in front of it, a bus stopped and deceased and his associates got down from it and started abusing him. 22. Accused Basheer in his statement recorded under section 313, Criminal Procedure Code. stated that at the time of occurrence while he was busy in construction work of Mosque, suddenly on the road in front of it, a bus stopped and deceased and his associates got down from it and started abusing him. In the meanwhile, when his cousin tried to enter the bus, deceased and Brajesh pulled him out and Sibbu took out Baka and dealt its blow on his head. When he shouted, the labourers working at the Mosque and some other persons assaulted deceased and his associates with stones etc. He and Nazeer took Shakeel to police station where they were arrested. Except Shakeel, other accused persons pleaded false implication because of their relationship with Basheer. In defence, accused persons examined Sheikh Ramzan (DW-1), Shalakram (DW-2) and Sukhlal (DW-3) who also reiterated the same story. However, none of the accused or defence witnesses disclosed the name of any particular person who caused injuries to deceased with sharp edged weapon. Thus, the defence version, in our opinion, did not appear reliable. 23. Dr. C. K. Panse (DW-4) and Dr. K. R. Sahai (DW-5), Surgical Experts, however, stated about the injury suffered by accused Shakeel. Dr. K. R. Sahai of district hospital, Sagar stated that on 18-12-2001, Shakeel Raza was admitted in the hospital. His condition was serious. There was an incised wound on the left side of his skull. All the layers of scalp were cut and the bones were depressed. After cleaning, he had stitched the wound and had referred the patient for Neurosurgery to Jabalpur Medical College. Bed head ticket of patient was Ex.D/12. Dr. D. K. Panse, Neurosurgeon of Anant Hospital, Jabalpur stated that on 24-12-2001, Shakeel Raza was admitted in his hospital. At that time he was unconscious. There was a stitched wound on the left side of his skull. In CT scan of the head, his bone was found fractured. On the same day, during operation, he saw membrane of his skull ruptured and injury in the brain. On 4-1-2002 he was discharged. 24. After a critical analysis of the evidence adduced by the prosecution as well as by defence, it seems that none of the parties gave correct or truthful version about the genesis of the incident. On the same day, during operation, he saw membrane of his skull ruptured and injury in the brain. On 4-1-2002 he was discharged. 24. After a critical analysis of the evidence adduced by the prosecution as well as by defence, it seems that none of the parties gave correct or truthful version about the genesis of the incident. It can however be culled out from entire facts that there was past enmity between accused Basheer and deceased. Deceased was a person of criminal antecedents. By chance when he and his associates stopped at bus stand Barethi and went to betel shop, he met accused Basheer and indulged in quarrel with him. When Basheer raised hue and cry, his son Waseem and other relatives rushed armed with weapons and stopped the bus when it was moving. When accused Shakeel tried to enter the bus, either Sibbu or anybody else assaulted him with some sharp edged weapon and the accused persons assaulted deceased with sword, stick etc.. In the assault, deceased as well as Brajesh, Sibbu and Shankar also suffered injuries. 25. In view of the above, we find that the trial Court committed no error in holding that accused persons, except Sheikh Khalid and Sheikh Saleem @ Pappu, whose presence we have already doubted in Para No. 16, formed an unlawful assembly armed with weapons and assaulted deceased as a result of which he died and Shankar, Brajesh and Sibbu suffered injuries. 26. Learned counsel for the appellants strenuously urged that in the facts and circumstances of the case, no offence under section 302 of the Indian Penal Code was made out since the intention of accused persons was not to commit murder of deceased. From the facts situation revealed from the prosecution evidence, it is apparent that altercation/quarrel between deceased and accused Basheer was a by chance incident. Other accused persons assembled suddenly at the spur of moment hearing the call from Basheer that he was being assaulted by deceased and his associates. 27. Prakash Vishwakarma (PW-4) stated that when accused Shakeel received injury by Baka, hearing cries of Basheer, accused persons assaulted deceased causing number of injuries to him by deadly weapons on his head and other parts of the body as a result of which he died. 27. Prakash Vishwakarma (PW-4) stated that when accused Shakeel received injury by Baka, hearing cries of Basheer, accused persons assaulted deceased causing number of injuries to him by deadly weapons on his head and other parts of the body as a result of which he died. In these circumstances, possibility that accused persons got provoked and without premeditation in heat of passion suddenly bent upon assaulting deceased, cannot be ruled out. As such their conviction under section 302/149 of the Indian Penal Code does not seem appropriate but since they caused injuries with deadly weapons on the vital parts of the body of deceased, it can certainly be held that they acted with the intention of causing death, or of causing such bodily injury to deceased as was likely to cause his death making them liable to be punished under section 304 Part I of the Indian Penal Code. 28. For the foregoing reasons, the conviction of appellants No. 1 Sheikh Waseem, No. 2 Sheikh Yaqoob, No. 4 Sheikh Basheer, No. 5 Sheikh Jakir, No. 7 Sheikh Bablu, No. 8 Sheikh Nasir @ Aethu, No. 9 Sheikh Nazeer, No. 10 Sheikh Afzal, No. 11 Sheikh Waheed and No. 12 Sheikh Shakeel under section 302/149 of the Indian Penal Code is modified to one under section 304 Part I read with section 149 of the Indian Penal Code and they are sentenced to rigorous imprisonment for ten years. They are also sentenced to pay a fine of Rs. 1000/- each. In default of payment of fine, each of them shall suffer simple imprisonment for a period of three months. The conviction and sentence of aforesaid appellants under sections 324/149, 323/149 (on two counts) and section 148 of the Indian Penal Code is affirmed. 29. For the reasons stated in paragraph No. 25, conviction and sentence of appellants No. 3 Sheikh Khalid and No. 6 Sheikh Saleem @ Pappu on all the charges is set aside. They are acquitted. 30. Appeal partly allowed.