JUDGMENT Hon’ble V.K. Shukla, J.—Present criminal appeal has been filed against the judgment and order dated 5th of November, 1988 passed by the Sessions Judge, Basti in Sessions Trial No. 28 of 1987, State v. Mohd. Haneef and others, holding appellants guilty for the offence punishable under Section 302/34 of Indian Penal Code and sentencing them to undergo imprisonment for life and also finding appellants guilty for the offence punishable under Section 308/34 of the Indian Penal Code and sentencing them to undergo three year’s rigorous imprisonment each and the sentences to run concurrently. 2. Prosecution story, as has been unfolded in the first information report lodged by Newas Ali on 28th of October, 1986 at 7 PM at Police Station Purani Basti that lies at the distance of 9 kilometers from the place of incident, that the complainant is a resident of village Bagdeeh and has the passage from the front of the house of the accused Mohd. Haneef for going to his house and same was continuously being used by him and his family members for a long time. On the fateful day at about 4 PM the informant’s son Akram, daughter-in-law Nazma Khatoon and he himself were coming back from their field after harvesting the paddy crop to their house and at the said point of time when they reached in front of the house of Mohd. Haneef, Mohd. Haneef started abusing them and protested their passing from the front of his door. Such action of Mohd. Haneef was resisted by the complainant’s son by mentioning that it was the passage and which way he should go. Thereupon, Mohd. Haneef exhorted his sons namely Akbar Ali and Shah Ali to assault and pursuant thereto Akbar Ali and Shah Ali armed with fawra and lathi reached there and started assaulting Akram and Nazma Khatoon and when complainant went to save, he was also assaulted by them. On assault being made alarm was made and at the said point of time Ram Mani Pandey, Pakri, Chitari and Sant Ram of village Karma came for their rescue and then the assailants ran away. Mohd. Haneef was attacking with stones. On assault being made alarm was made and at the said point of time Ram Mani Pandey, Pakri, Chitari and Sant Ram of village Karma came for their rescue and then the assailants ran away. Mohd. Haneef was attacking with stones. After the said incident in question has taken place report in question was got scribed by Udai Shankar Chowdhary and first information report was registered on the basis of written report as Case Crime No. 338 of 1986 under Section 323, 336 and 504 of the Indian Penal Code. All the three injured persons were got medically examined on the same day on the request of police based on chitti majrubi prepared on 28.10.1986 by HM Lat Bux and Akaram was admitted in the hospital and he ultimately succumbed to his injuries on 30th of October, 1986 and information was sent to the police station and, accordingly,then the case registered formerly as Case Crime No. 338 of 1986 was converted into one under Sections 323, 336, 504 and 304 of the Indian Penal Code on 31st of October, 1986. 3. Before that as the investigation of the case was already handed over to the IO Shri A.K. Sharma, the Investigating Officer on 29th of October, 1986 recorded the statements of Nazma Khatoon, Sant Ram Yadav and Udai Shankar Chowdhry and on the pointing out of all these three incumbents spot inspection report was also prepared. From the spot in question ordinary earth and blood stained earth was collected and was kept in separate sealed containers. From the spot blood stained lungi of Akaram was also recovered and its fard was also prepared. Thereafter, attempt was made to find out the accused persons but they were not found on the spot and thereafter statement of Ram Mani Pandey was recorded and then at Sadar Hospital Basti statement of complainant Newas Ali was also recorded and Akaram could not be examined as he was not in his senses and subsequently he died. Thereafter, attempt was made to find out the accused persons but they were not found on the spot and thereafter statement of Ram Mani Pandey was recorded and then at Sadar Hospital Basti statement of complainant Newas Ali was also recorded and Akaram could not be examined as he was not in his senses and subsequently he died. After his death inquest was got done and body was sent for autopsy and after autopsy report was received, then case was converted under Section 304 of the Indian Penal Code as already noted above and, thereafter, after taking due permission from the Court accused persons were also examined in the jail and then statement of SI Khursheed Ahmad was recorded and statement of Panch witnesses was also recorded and then the charge-sheet in question was filed on 6th of November, 1986. After the charge-sheet in question has been filed as the case in hand was exclusively triable by the Court of Sessions, the matter was committed to the Court of Sessions for facing of the trial. The matter, after committal, came up before the Sessions Judge Basti and Sessions Judge Basti on 24.2.2987 proceeded to frame the charges under Section 302/34 IPC for causing death of Akaram and for causing hurt to Nazma Khatoon and Newas Ali, charges under Section 308/34 IPC and the accused appellants in their turn denied their participation in the crime in question and requested for being tried. In order to bring home the charges, prosecution examined PW-1 Newas Ali, PW-2 Nazma Khatoon, PW-3 Udai Shankar Chowdhry, PW-4 Ram Mani Pandey as witnesses of fact and Dr. A.K. Jain, who conducted autopsy on the body of Mohd. Akaram, was got examined as PW-5, Dr. R.C. Parashar, who examined the injuries of Newas Ali, the informant and Musamat Nazma Khatton, was got examined as PW-6, PW-7 was Shri A.K. Sharma, the Investigating Officer who investigated the case and Dr. G.N. Prasad, who conducted the X-ray, was examined as PW-8 and he has proceeded to mention that parietal bone and temporal bone of the head of Mohd. Akaram was fractured and as far as Newas Ali is concerned, his occipital bone was fractured. Shri Khursheed Ahmad was examined as PW-9, who has proceeded to testify in respect of the inquest proceedings and other proceedings. Akaram was fractured and as far as Newas Ali is concerned, his occipital bone was fractured. Shri Khursheed Ahmad was examined as PW-9, who has proceeded to testify in respect of the inquest proceedings and other proceedings. After the said statements of witnesses have been recorded, then the statement of accused persons under Section 313 of Cr.P.C. have been recorded. In the statement made under Section 313 Cr.P.C. Akbar Ali, Shah Ali are under denial mode and Mohd. Haneef has proceeded to mention that on the fateful day Newas Ali was taking out mud and was erecting barha and when Jannatunnisan and Sarwar Ali went there to resist them, then at the said point of time the family members of Newas Ali started hitting them and it was further said that thereafter in defence marpeet took place. It was also mentioned therein that he has got himself medically examined alongwith Sarwar Ali and Jannatunnishan and application in that regard was moved by him before the Superintendent of Police. After the statement under Section 313 Cr.P.C. has been got recorded Dr. R.K. Saxena, Medical Officer, Primary Health Center Saughat, Basti has appeared to prove injuries of Mohd. Haneef, Sarwar Ali and Jannatunnisan. Thereafter arguments have been advanced and the trial Court on the basis of appreciation of the evidence has proceeded to record the conviction and the same has impelled the appellants to be before this Court. 4. Shri Mukhtar Alam, learned counsel for the appellants, has assailed the validity of conviction by submitting; 1. that the incident in question has not at all happened in the way and manner and at the place where it has been alleged and the fact of the matter is that it was a case of free fight and genesis of occurrence has been suppressed as there are apparent injuries suffered from the side of the accused appellants also and same remains unexplained. 2. from the statement of the witnesses it is not at all known as to who has caused the injuries in question and inter se witnesses there are major contradictions and improvements. 3. 2. from the statement of the witnesses it is not at all known as to who has caused the injuries in question and inter se witnesses there are major contradictions and improvements. 3. the evidence on record does not reflect that there has been killing in furtherance of common intention rather circumstances are speaking for itself that suddenly the fight in question has erupted and there has been no intention to kill anyone, as such, the case in hand will not at all travel beyond the scope and ambit of Section 304 Part II of the Indian Penal Code. 4. in the present case if the prosecution story as narrated is accepted to be true it then from the same is reflected that each and every individual has acted in individual capacity and, accordingly, the provisions as contained under Section 38 of the Indian Evidence Act would be attracted and made applicable and each one of them would be responsible for his personal action i.e. aid of Section 34 cannot be taken, in the facts of the case. Countering the said submission learned AGA Shri Vimlendu Tripathi as well as Shri Pankaj Satsangi, learned counsel for the complainant, contended that the prosecution story is consistent one till end and here the incident in question is admitted and positive role has been attributed to each one of the appellant and their complicity has been reflected from the attending circumstances and intention is also reflected from the injury that has been so caused, then conviction does not warrant any interference by this Court and appeal is liable to be dismissed. 5. To start with in the present case this Court proceeds to examine the topography of the site wherein incident in question has taken place. This much is accepted position that incident in question has taken place in front of the house of the accused appellants and the house of the complainant and injured witnesses is adjoining to the house of the accused appellants and there has been a passage from the front of the house of accused Mohd. Haneef for going to the house of the complainant and injured witnesses. Haneef for going to the house of the complainant and injured witnesses. On 28th of October, 1986 at about 4 PM the incident in question has taken place wherein precise case of the prosecution has been that the informant, his son Akaram and daughter-in-law Nazma Khatoon were coming back from their field after harvesting the paddy crop to their house and this exercise was being undertaken by them since morning and at the relevant point of time Mohd. Haneef started abusing them and protested passing of the informant and injured persons from the front of his door and as it was a regular route informant’s son Akaram protested and told him as it was a passage which was continuously being used by them and from where they should go thereupon Mohd. Haneef has exhorted his sons to assault them both and, thereafter, two appellants Akbar Ali and Shah Ali armed with fawra and lathi have started assaulting Akaram and Nazma Khatoon and informant has also been assaulted and during this period Mohd. Haneef has been pelting stones. Spot inspection report clearly reflects the place wherein incident in question has taken place marked as X wherein human blood has been found. Once such is the factual situation that spot inspection report shows the place wherein incident in question has taken place and blood stained earth has been recovered from the said place and same has not at all been challenged, then as far as the place of incident is concerned, it is fixed and this Court proceed with this presumption that the incident in question has taken place accordingly. 6. PW-1 Newas Ali is the informant as well as injured witness and he has given graphic picture of the way and manner in which incident in question has been executed by the accused appellants. He has precisely proceeded to mention that at about 4 PM on 28th of October, 1986 he alongwith his son Akaram and daughter-in-law Nazma Khatoon were coming back to their house after harvesting paddy crop and Akaram was being followed by his daughter-in-law Nazma Khatton and he was behind her and the distance in between all of them was 5 to 10 paces with each other and when they reached the passage in front of Mohd. Haneef’s house at the said point of time Mohd. Haneef’s house at the said point of time Mohd. Haneef protested their passing in front of his door and same was replied by Akaram that it is the old passage continuously used by them since ages and he would go and hearing this Mohd. Haneef exhorted his sons Akbar Ali and Shah Ali and then armed with fawra and lathi respectively they started assaulting Akaram and Mohd. Haneef started assaulting by throwing brick stones. Akaram at the said point of time has fallen down even then he was assaulted by all the three and when PW-1 and his daughter-in-law rushed to rescue him, then they both were assaulted by Akbar Ali and Shah Ali and Akbar Ali used Fawra from the other side causing head injury and Nazma was assaulted by all three, and Akaram after receiving injuries became unconscious. 7. Once such is the factual situation narrated by PW-1 Newas Ali, the informant, and he has received injury in the said incident, then his presence on the spot cannot be doubted by any means as he will be the last man to frame anyone specially when his son has died in the said incident in question. Apex Court in the case of Mano Dutt v. State of H.P., 2012 (4) SCC 79 , qua the evidentiary value of injured witness has mentioned, that ordinarily an injured witness would enjoy greater credibility because he is the sufferer himself and thus there would be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in bargain protect real culprit. Much more convincing evidence is required to discredit injured witness. 8. PW-1 Newas Ali has been grilled in the cross-examination, on all facts of the matter and he has been very very candid and very very specific as to in what way and manner they were asked not to go through said passage, that was being used by them since the time of their forefather, at the said point of time they were carrying their harvested crop, and Akaram retorted by saying that it was their old passage, and they would go through the said route, then they were assaulted, and at the said moment the harvested crop that was being carried by them was thrown away, and first Akaram was assaulted, then Nazma was assaulted and lastly PW-1 was assaulted. It was also mentioned that they all were unarmed and no injuries have been caused by them either to Sarwar, Jannatunnisha or Mohd. Haneef. 9. As far as PW-2 Nazma Khatoon is concerned, she has also supported the prosecution story on all scores and she has also been very very specific that Mohd. Haneef has resisted the passing of Newas Ali, Akaram and herself on the passage in front of his house and when Akaram had said that it was the old passage and they have a right to move and this infuriated Mohd. Haneef and he exhorted his sons, who thereafter armed with fawra and lathi caused the injuries and Mohd. Haneef himself caused injuries by bricks etc. She has specifically stated that Akaram was assaulted by Shah Ali by using lathi and Akbar Ali caused injury to Akaram by using the Fawra from the other side, and when she and her father-in-law rushed to save Akaram, she had been assaulted by all the three and after Akaram had fallen down, Mohd. Haneef had launched attack on his chest, and Akaram became unconscious, and she as well as her father-in-law on account of injuries received have fallen down. She has also mentioned that Akaram was attacked first by all three, and Fawra injury was caused, and when she and her father-in-law went ahead to save him, she was assaulted by Shah Ali, and she does not remember as to how many lathi injuries were caused and after receiving injuries she has fallen down, her father-in-law has also fallen down, and she had not seen Jannatunnishan and Sarwar on the spot and she is no aware as to how they have received injuries. 10. The story line of PW-2 is consistent one on all score i.e. the way and manner in which incident in question has occurred, the way and manner incident in question has been executed by the accused appellants and the way and manner in which after incident in question has been carried out how they have walked to police station, how first information report has been lodged and how injuries etc. have been examined. have been examined. The story line of PW-1 and PW-2, both injured witnesses, contains no major contradictions worth name and there is no noticeable conflict and the minor variations in between the statement of two is natural one and same in no way affects the core of the prosecution case. Here variations and improvements in the statement of the two injured witnesses, as is being sought to be pointed out such as “that fawra was used from the other side”; “only Shah Ali had attacked Nazma with lathi”, are not of such a nature that would cause dent in the prosecution case and same is also of not such a nature that would discredit the testimony of witnesses to the effect that witnesses are trying to state something which is not true and which is not corroborated by other attending circumstances. The normal course of human conduct would be that while narrating particular incident, there may occur minor discrepancies, and specially in case where he himself is the victim, the fear for his own life and anxiety to save victim who has been targeted first would be so high and bothersome to the said witness that it will not be only unfair but also unfortunate to expect such a witness to speak with precision with regard to injuries inflicted on the body of deceased and injured persons and the role attributable to each one of the accused person. The credibility of prosecution case, as narrated before the Court by PW-1 and PW-2, both injured and natural witnesses, cannot be weakened with reference to such minor/insignificant improvements. 11. PW-3 Udai Shankar Chowdhry, scribe of the first information report that has been written by him on the dictation of the complainant on 28th of October, 1986 and he has merely stated and fortified the fact that on that day at about 4.30 PM when he came to his house, he found Nazma Khatoon, Newas Ali and his son Akaram injured and then Newas Ali dictated the complaint and requested for submission of the same and thereafter he has put his thumb mark. PW-4 Ram Mani Pandey has also supported the case of prosecution, as has been stated by PW-1 and PW-2 and capital is being sought to be made of the contradiction vis-a-vis his statement wherein he stated that Fawra injury was caused from the sharp side and statement of PW-1 and PW-2 that Fawra injury was caused from the other side. 12. Is this contradiction of such a nature so as to discredit the testimony of PW-1 and PW-2. The answer would be no, for the simple reason that as far as use of fawra is concerned, its use in the commission of offence is not disputed, and to that extent prosecution story as set-up by PW-1 and PW-2 stands fully corroborated. The two injured witnesses were in close proximity to the appellants, and as such they were in much better position to state that fawra was used from the other side. PW-4 Ram Mani as per the site plan was placed at point B from where he has witnessed the commission of offence, then to say with precision that same was used from sharp edged side may be exaggeration on his part, and such variations are explainable variations which are likely to occur and do not, in any way, adversely affect the case of prosecution. 13. Apex Court in the case of Kuriya v. State of Rajasthan, 2012 (10) SCC 435, wherein two persons were armed with axe and kash and remaining thirteen persons were armed with lathi, and there were total fifteen injuries on the body of deceased, and the injuries caused nowhere reflected that they could have been caused by axe or kash, which are sharp edged weapons, ruled that even such a situation would not belie ex facie the ocular and medical evidence, and proceeded to mention that even axe or kash could be used from the other side i.e. not the sharp edged side, to cause such injuries. 14. Once such is the factual situation and circumstances are reflecting that Mohd. Akaram had sustained severe injuries with at least two fractures on the region of his head whereas Newas Ali had sustained the fracture of occipital bone and Smt. Nazma Khatoon was also injured. In view of this, once immediately after the incident in question has taken place they have reached to the police station and thereafter have been medically examined and Mohd. In view of this, once immediately after the incident in question has taken place they have reached to the police station and thereafter have been medically examined and Mohd. Akaram has subsequently died, then to say that the story that has been set-up by PW-1, PW-2 and PW-4 are not at all truthful, cannot be accepted in the facts of the case. In view of this, this Court proceeds to mention that PW-1, PW-2 and PW-4 are most natural witnesses, who were available on the spot and once two of them are injured witnesses and have received injuries in the same incident, same fortifies their presence on the spot and also fortifies the way and manner incident has taken place. Much emphasis has also been laid on the fact that fawra has been shown to have been used and the fact of the matter is that there are no fawra injuries and same belies the prosecution case in toto and, accordingly, medical evidence is in conflict to ocular evidence. 15. PW-6 Dr. R.C. Parashar has clearly proceeded to mention that he was the Chief Medical Officer of the District Hospital Basti and on that day i.e. 28th of October, 1986 at 7.25 PM he medically examined Newas Ali and found the following seven injuries on his person: I. Lacerated wound 2cm X 0.5cm X muscle deep on forehead right side 4 cm above right eye brow. Advised X-ray skull. II. L.W. 4cm X 0.5cm X scalp deep on head right side 8cm above right ear. III. L.W. 1cm X 0.5cm X scalp deep on head left side 12cm above left ear. IV. L.W. 2.5cm X 0.5cm X scalp deep on head left side 1.5cm above left ear. V. Abrasion 1cm X 0.5cm on bridge of nose. VI. L.W. 1cm X 0.5cm X muscle deep on right side face 5cm below right eye surrounded by swelling 3cm X 3cm all around. VII. L.W. 1cm X 0.5cm X skin deep on chin right side 3cm below lower lip. According to him the injuries were kept under observation and were caused by blunt object. Their duration was fresh. On same day he medically examined Mohd. Akaram and found the following seven injuries on his person: I. L.W. 5cm X 0.75cm X scalp deep on head on right side 11cm. above right ear, surrounded by swelling 6cm X 4cm all around. Advised X-ray skull. Their duration was fresh. On same day he medically examined Mohd. Akaram and found the following seven injuries on his person: I. L.W. 5cm X 0.75cm X scalp deep on head on right side 11cm. above right ear, surrounded by swelling 6cm X 4cm all around. Advised X-ray skull. II. L.W. 2cm X 0.5cm X scalp deep on head post aspect 7.5cm away from injury No. 1 surrounded by swelling 3cm X 3cm all around. III. Traumatic swelling 5cm X 5cm on head left side just above left eye brow. IV. L.W 0.5cm X 0.5cm X skin deep on tip of nose. V. L.W. 1.5cm X 0.5cm X muscle deep on lower lip in middle. VI. Abrasion 2cm X 1cm on left forearm posterior aspect 8cm above wrist joint. VII. Contusion 6cm X 2cm on left side abdomen 7cm away from umbilicus. The X-ray of skull was advised. The injuries were kept under observation. They were caused by blunt object and the duration was fresh. At 8 PM he examined Smt. Nazma Khatoon and found that following two injuries on her person: I. L.W. 4cm X 0.5cm X scalp deep on head on right side 14cm above right ear. II. Contusion 7cm X 1.5cm on right arm posterior side 6cm above dibow joint. Their injury reports, Exs.Ka-3, Ka-4 and Ka-5 respectively have been proved by him and according to him, all these injured could have sustained these injuries on 28th of October, 1986 at about 4 PM. The injured Akaram and Newas Ali were admitted in the hospital. He also added that injury No. 1 of Akaram was possible from the blunt side of the fawra and that his injury No. 3 could be caused by brick. The injury No. 1 of Nazma Khatoon was possible from lathi and injury No. 2 by a brick. Similarly, the injuries 1 and 2 of Newas Ali could be caused by brick and lathi. Some of the injuries of Akaram were possible by lathi. He was cross-examined at length by the defence and during the course of cross-examination, he also reiterated that injuries 1 and 2 of Akaram were possible by brick (Inta), lathi or fawra (blunt side). 16. P.W. 8 Dr. G.N. Prasad conducted the X-ray. Some of the injuries of Akaram were possible by lathi. He was cross-examined at length by the defence and during the course of cross-examination, he also reiterated that injuries 1 and 2 of Akaram were possible by brick (Inta), lathi or fawra (blunt side). 16. P.W. 8 Dr. G.N. Prasad conducted the X-ray. He stated that on 29th of October, 1986, he was Radiologist in the hospital and on that day, he got the X-ray of the head region of Mohd. Akaram and Newas Ali done and the X-ray plates are Ex.1 and Ex.II respectively. On the basis of the same, he prepared the reports Ex. Ka-12 and Ka-13 and found that the parietal and temporal bones of Akaram had been fractured whereas there was the fracture of the occipital bone of Newas Ali. 17. In the present case Dr. R.C. Parashar has precisely proceeded to mention that injury No. 1 of deceased Akaram was possibly from the blunt side of the fawra and once such is the opinion that has been given by doctor concerned that it is feasible to cause such injury from the blunt side of fawra, then to say that there is no fawra injury cannot be accepted in the facts of the case by placing reliance on the testimony of Dr. A.K. Jain, and specially when said alleged discrepancy is explainable and cannot be said to very vital, as ocular evidence cannot be brushed aside only because, to some extent, it is not in consonance with medical evidence and here the medical evidence contrarily is in full consonance with the ocular evidence as weapon of assault that has been narrated to have been used in the present case is lathi, fawra and bricks and here in the opinion of the doctor the injuries that has been there could be caused by lathi, by the blunt side of the fawra and even by brick. Once such is the opinion expressed by the doctor concerned and the said opinion being in line with the ocular evidence that has been led before the trial Court in the shape of PW-1, PW-2 and PW-4, and the two of them being injured witnesses, then this Court is of the firm opinion that the ocular evidence and medical evidence clearly substantiates the picture that has been painted by PW-1 and PW-2 and story narrated by PW-4 is also on the same line i.e. qua the way and manner in which incident in question has been given effect to and implemented by the accused appellants in front of their house. 18. It has also been contended that there are injuries on the side of the accused appellants also and as same remains unexplained, in view of this, prosecution story is liable to be thrown away as prosecution has deliberately kept on hold the genesis of occurrence and failed to explain the said injuries having been caused in the same transactions and failure of the same tantamounts to suppression of truth as well as genesis of the occurrence. On this aspect of the matter, this Court finds that the defence has examined DW-1 Dr. R.K. Saxena to prove the injuries of Mohd. Haneef, Smt. Jannatunnissan and Sarwar Ali and this Court proceeds to mention that Dr. R.K. Saxena, Medical Officer, Primary Health Center Saughat, Basti has proceeded to mention that on 28th of October, 1986 at 6.20 PM he has examined Mohd. Haneef and found following injuries on his body: I. Abraded bruise 2cm X 2cm on left face, cheek bone about 1 ½ cm below the lateral end of left eye brow. Colour reddish blue II. Bruise 2cm X 2cm on right side of forehead just above the medial end of eye brow. Colour reddish blue. III. Bruise 2cm X 2 ½ cm on right side of forehead about 1 2/2 cm above the injury No. 1. Colour reddish blue. IV. Bruise 2cm X 4cm on left thigh in anterior surface about ½ cm above the knee joint. Colour reddish blue. Colour reddish blue. III. Bruise 2cm X 2 ½ cm on right side of forehead about 1 2/2 cm above the injury No. 1. Colour reddish blue. IV. Bruise 2cm X 4cm on left thigh in anterior surface about ½ cm above the knee joint. Colour reddish blue. On that day at 7 PM he medically examined Smt. Jannatunnishan, aged about 24 years, brought by one Sohrat Ali, aged about 25 years and found the following eight injuries on her person: I. Abraded bruise 2cm X 2 ½ cm on left side of forehead about 3cm above the left eye brow and 7cm medial to the upper border of left pinna. Colour reddish. II. Abraded bruise 2cm X 2 ½ cm on right side of head of scalp about 8cm above the upper border of right pinna. Colour reddish blue. III. Bruise 3cm X 3cm on left side of occipital surface of head about 7cm above the upper border of left pinna. Colour reddish blue. IV. Bruise 18cm X 2cm on the back about 6cm below the seventh cervical vertebra from bruise extending 9cm laterally to the vertebral column on each side. Reddish blue. V. Bruise 14cm X 2cm on the back about 9cm below the injury No. 4. Extending laterally both sides of vertebral column. Reddish blue. VI. Abraded bruise 3cm X 2cm on anterior surface of right leg about 16cm below the right knee joint. VII. Bruise 1cm X 0.5cm on the mucosal surface of upper let about 1cm medial to the right angle of mouth. Colour reddish blue. VIII. Abraison 1 ½ cm X 0.5cm on lateral surface of left leg about 5cm above the left lateral malleolus. On the same day, at 8 PM he examined one Sarwar Ali, aged about 14 years and found the following two injuries on his person: I. Bruise 5cm X 4cm on posterior surface of left hand about 3cm below the wrist joint on lateral side. Swelling and tenderness present. II. Abraison 1cm X 1/3cm on posterior surface of right hand on base of right index finger. 19. Dr. Swelling and tenderness present. II. Abraison 1cm X 1/3cm on posterior surface of right hand on base of right index finger. 19. Dr. R.K. Saxena, Medical Officer, Primary Health Center Saughat, Basti has proceeded to mention that he examined the said injured persons and had prepared the medical report and he has also proceeded to mention that on none of the abrasion head has been formed and he has also proceeded to mention that the said injuries may co-relate to 4 PM and he proceeded to produce the original medico legal register concerned and mentioned that all these three persons could have received inuries by lathi, brick (dhela) and also proceeded to mention that in Court Jannatunnishan and Sarwar are not at all present. In the medico legal register, after noting the injuries, it was his duty to inform the police and in the medico legal register there is no such entry, as to whether any information has been given to the police or not. Mohd. Haneef on his own had come up for examination, and after some time Sohrat Ali came alongwith Sarwar Ali and Jannatunnishan, and he had noted the name of injured as was disclosed by them and he noted the injuries as he found, and injuries are not at all fictitious, and he admitted that as per the register last medical examination was made on 18.9.1986 and then after a great gap present medical examination was carried out on 29.10.1986. 20. The trial Court on this aspect of matter has examined the matter at great length and has found that entire story that has been set-up is a manipulated one, inasmuch as, this is fully substantiated and admitted that after these three injured persons were medically examined no information whatsoever was given to the local police qua the medical examination of these three injured persons being carried out and, accordingly, there exists no entry worth name in the said direction. 21. The most surprising feature of the medical examination is that Mohd. Haneef has reached first before Dr. R.K. Saxena, Medical Officer, Primary Health Center Saughat, Basti and he has been medically examined at 6.30 PM and duration of injuries has been described about within 24 hours. Though Smt. Jannatunishan and Sarwar Ali have allegedly received injuries in the same transaction wherein Mohd. Haneef has reached first before Dr. R.K. Saxena, Medical Officer, Primary Health Center Saughat, Basti and he has been medically examined at 6.30 PM and duration of injuries has been described about within 24 hours. Though Smt. Jannatunishan and Sarwar Ali have allegedly received injuries in the same transaction wherein Mohd. Haneef claimed to have received injuries but all three did not walk together to the doctor, and Mohd. Haneef came first on his own and the other two came subsequently and got themselves examined at 7 PM and 8 PM respectively. Had the injuries been caused at one point of time, in normal course of human conduct, all the injured person would have reached the doctor together, and thereafter they could have been medically examined one after the other, but here doctor has admitted this situation that Mohd. Haneef came first and after sometime the other two arrived alongwith Sohrat Ali. 22. The trial Court, in the present case, taking into account all attending circumstances has proceeded to mention that defence version on this score is clearly an act of manipulation as Dr. R.K. Saxena, Medical Officer, Primary Health Center Saughat, Basti was a senior doctor being in Government service for last about eight years and he deliberately has not written the actual duration of the injuries caused and wrote that the said injuries have been caused within 24 hours and same has been described clearly as an act of avoidance of doctor concerned. The trial Court also examined the medico legal register wherein last injury recorded was on 18th of September, 1986 and thereafter a lapse of more than one month has noted the injuries of the present injured in his register on 28th of October, 1986 and in between no injured has been medically examined by him as per the said register. This particular circumstance in itself substantiated the way and manner, injured have allegedly reached the doctor, to get themselves examined. Over and above, defence has come up with a definite case that a barha was being dug at the door of the accused by the complainant party whereupon the accused Mohd. Haneef objected. This infuriated the complainant party as a consequence of which Sarwar Ali and Smt. Jannatunnishan besides the accused Mohd. Haneef were assaulted. Over and above, defence has come up with a definite case that a barha was being dug at the door of the accused by the complainant party whereupon the accused Mohd. Haneef objected. This infuriated the complainant party as a consequence of which Sarwar Ali and Smt. Jannatunnishan besides the accused Mohd. Haneef were assaulted. This fact has been denied by both the injured witnesses of the prosecution and no witness from the side of defence has come forward to corroborate the version of the defence on the said subject. It has been stated by the accused Mohd. Haneef that he sent a report to the Superintendent of Police with regard to the incident but the said report has not seen the light of the day so far. Even till the stage when the accused party was got medically examined, no one had died and if the connection of the defence would have been correct, the number of injuries shown from the side of the accused appellants were almost equal to the injuries caused on the complainant, his son and daughter-in-law and in that event the accused persons must have not got any hitch in going to the police station so as to lodge the report. Such conduct of injured clearly exposed them and the trial Court has rightly relied upon such circumstance. 23. This much has also come on record that Primary Health Center Saughat wherein the defence injured have been medically examined is at a much more distance as compared to the district hospital and no reasons have been given by the defence as to why they have chosen to go to Primary Health Center Saughat and not the district hospital, which is nearer to village Bagdeeh. The trial Court in pith and substance has drawn the conclusion that purposely defence has avoided to go to district hospital and injuries have been manipulated by a doctor of their own choice. The trial Court has clearly concluded that all attending circumstances belies the defence version and also reflects the way and manner in which manipulations have been made and categorical mention has been made that with the help of doctor such injuries have been manufactured. The trial Court has clearly concluded that all attending circumstances belies the defence version and also reflects the way and manner in which manipulations have been made and categorical mention has been made that with the help of doctor such injuries have been manufactured. Trial Court has rightly mentioned that Sarwar Ali and Smt. Jannatunnishan were not even produced before the Court, at the point of time when the doctor was being examined by the defence to confirm their identity, and most importantly all the injuries alleged to have been sustained by accused Mohd. Haneef, Sarwar Ali and Jannatunnishan are in the nature of bruises and abrasions, and said injuries have been deliberately introduced as these injuries after some days would not have left mark. Purposely such injuries were shown. 24. Here the inconsistency of defence is also fully exposed from the case, that in statement made under Section 313 Cr.P.C. accused Akbar Ali and Shah Ali at no point of time have claimed that on the spot barha was being dug, that led to the incident in question wherein free fight has erupted. Only Mohd. Haneef in his statement under Section 313 Cr.P.C. has come up with the story, while replying question No. 16 that barha was being dug, Jannatunnishan and Sarwar Ali went to stop them, then the family members of Newas Ali caused injuries by lathi and dhela to Jannatunnishan, Akaram, Newas Ali, Nazma Khatoon and wife of Newas Ali, and then they rushed to save, then marpeet took place, and then said that when they rushed then they were assaulted i.e. he was assaulted. He also in defence has thrown stones and he got himself examined alongwith two other and gave application to SSP. 25. Apex Court in the case of Mano Dutt (supra), has extensively dealt with the issue by mentioning that it is settled canon of jurisprudence that one who alleges must prove the same. Therein claim was set-up that in self defence injuries have been inflicted, and as prosecution has not explained the same, prosecution story should be thrown away. 25. Apex Court in the case of Mano Dutt (supra), has extensively dealt with the issue by mentioning that it is settled canon of jurisprudence that one who alleges must prove the same. Therein claim was set-up that in self defence injuries have been inflicted, and as prosecution has not explained the same, prosecution story should be thrown away. Apex Court was not at all satisfied by said submission, as appellants qua their version had never approached the police for making investigation on their part of the story, whereas the said remedy was available, and when a person claims exercise of private defence, the onus lies on him to show that there were circumstances and occasion for exercising such right. Merely because one claims right of self defence, that does not mean that he gets right to cause the death of other person, as the right of self defence has also to be exercised directly in proportion to the extent of aggression. Non explanation of the injuries on the person of accused may affect the prosecution case on fulfillment of these two conditions (I) that the injuries on the person of accused were also of serious nature (II) such injuries must have been caused at the time of occurrence in question. Here none of the two prerequisite conditions have been fulfilled. In the earlier part of the judgment detailed elaborate reasons that has weighed to the Court, for discrediting such story is already there. On overall assessment of the evidence and all other attending circumstances clearly reflect that defence version is nothing but concoction and defence story line as projected is false. 26. At last, issue has been raised and submitted that in the facts of present case, Section 34 of the Code should not be invoked and applying the principles of Section 38 of the Code, appellants be convicted for their individual acts. Dispute as per the prosecution case has emanated on account of the prevention of use of passage. 26. At last, issue has been raised and submitted that in the facts of present case, Section 34 of the Code should not be invoked and applying the principles of Section 38 of the Code, appellants be convicted for their individual acts. Dispute as per the prosecution case has emanated on account of the prevention of use of passage. Existence of passage and the said passage being used by informant’s family since time immemorial has not been disputed as per the statement made under Section 313 Cr.P.C. The theory that has been set-up from the side of appellants that dispute erupted on account of barha being dug at the door of accused appellants has not at all been substantiated, and, accordingly, the prosecution story has to be seen, in the way and manner it has come forward. Here the cause of generating the incident goes to Mohd. Haneef who without any lawful authority tried to stop usage of passage and instigated his sons to launch attack and at his level he has been causing brick injuries and has been an active participant in the commission of offence. The two appellants Akbar Ali and Shah Ali have caused injuries with fawra and lathi and Mohd. Akaram has sustained severe injuries on his head and the temporal and parietal bones of Akaram had been fractured. The doctor has clearly stated that the injuries of Mohd. Akaram in the ordinary course of nature were sufficient to cause his death. Here the circumstances are speaking for itself that as far as Shah Ali and Akbar Ali are concerned, undoubtedly they shared common intention to commit murder, as was reflective from the manner of assault and the severity of force with which they executed the incident with their respective weapon in their hand at the said point of time, and even after Akaram had fallen down, the attack continued and when attempt was made to save the other family members were also attacked and they received serious injuries. Here Mohd. Haneef instigated his sons to launch attack and it appears that while committing the act in furtherance of common intention, Shah Ali and Akbar Ali developed and shared the common intention of committing murder, and as far as Mohd. Haneef is concerned, his role has been that of instigator and causing brick injuries. Here Mohd. Haneef instigated his sons to launch attack and it appears that while committing the act in furtherance of common intention, Shah Ali and Akbar Ali developed and shared the common intention of committing murder, and as far as Mohd. Haneef is concerned, his role has been that of instigator and causing brick injuries. In the present case, there may be signal of common intention on his part, but at the point of time when he had been throwing bricks, he was unaware of the fact that Shah Ali and Akbar Ali have formed common intention to kill. Applying the principle of law under Section 38 of Penal Code, therefore, case of Mohd. Haneef can be separated, by mentioning that he had participated in the commission of offence with the knowledge that the assault on Mohd. Akaram was likely to result his death. The facts of case reflect that Mohd. Haneef shared the common intention of his sons Shah Ali and Akbar Ali for the commission of offence, but after instigation Shah Ali and Akbar Ali developed and shared common intention of committing murder. 27. Consequently, the prosecution story is credible one and the witnesses who have come forward to support the case of the prosecution are worthy of credence and there is no material contradiction and whatever improvements or contradictions are there, the same do not materially affect the case of prosecution and are rather insignificant and cannot be made foundation and basis for doubting the case of the prosecution. Once such is the factual situation that exists on record and the story that has been set-up by the defence is of no credence and prosecution through the injured witnesses and independent witness whose ocular evidence is duly supported by medical evidence has clearly substantiated the factum offence having been committed by the appellants, then the consequences provided for has to flow. In view of the above, appeal is partly allowed. The judgment and order dated 5th of November, 1988 passed by the Sessions Judge, Basti in Sessions Trial No. 28 of 1987, State v. Mohd. Haneef and others, is affirmed in so far as Shah Ali and Akbar Ali are concerned, and as far as Mohd. In view of the above, appeal is partly allowed. The judgment and order dated 5th of November, 1988 passed by the Sessions Judge, Basti in Sessions Trial No. 28 of 1987, State v. Mohd. Haneef and others, is affirmed in so far as Shah Ali and Akbar Ali are concerned, and as far as Mohd. Haneef is concerned, his appeal is partly allowed by altering the conviction to Section 304 Part II read with Section 34 IPC, and sentence of life imprisonment imposed on him is altered to rigorous imprisonment for 7 years. The conviction/sentence of all the appellants on other score is maintained. The accused appellants are directed to be taken into custody to serve out the remaining sentence. —————