JUDGMENT 1. (Oral) - Instant criminal appeal has been preferred by four appellants, who constitute one family. Appellants No.1 & 2 viz., Mahesh and Kalu are brothers, being sons of Sohan Lal, whereas Smt. Rama Devi (appellant No.3) is wife of Mahesh (appellant No.1) and Smt. Panchi Devi (appellant No.4) is wife of appellant No.2, Kalu. 2. In the First Information Report (Exhibit-P/5), complainant (Rajesh) had named one another person, namely Manna Lal s/o. Omkar as accused. But the Investigating Agency had not sent Manna Lal for trial; later-on, the witnesses also conveniently dropped his name. 3. The Court of Additional District & Sessions Judge [Fast Track], Behror (Alwar), vide its impugned judgment dated 13.08.2004 found appellant - Mukesh guilty of offences punishable under Sections 302, 325 and 323 Indian Penal Code substantively; and convicted other appellants viz., Kalu, Smt. Rama Devi and Smt. Panchi Devi with the aid of Section 34 Indian Penal Code, qua offence under Sections 302, 323 and 325 I.P.C. Furthermore, all these three appellants were also substantively convicted for commission of offence punishable under Section 323 I.P.C. 4. All these four appellants were acquitted, qua commission of offence punishable under Section 447 I.P.C. 5. Having convicted the appellants, vide its impugned judgment dated 13.08.2004, the Court of Additional District & Sessions Judge, [Fast Track], Behror, Alwar, vide a separate order of even date, sentenced them as under:- Appellant No.1 viz., Mahesh For commission of offence under Section 302 of Indian Penal Code, he was sentenced to undergo rigorous life imprisonment and to pay a fine of Rs. 2000/-, in default of payment of fine to further undergo three months simple imprisonment. For commission of offence under Section 325 of Indian Penal Code, he was sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo two months simple imprisonment. For commission of offence under Section 323 of Indian Penal Code, he was sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo one month simple imprisonment. Appellants Nos. 2 to 4 viz., Kallu, Smt. Ramadevi and Smt. Panchi Devi : For commission of offence under Section 302/34 of Indian Penal Code, they were sentenced to undergo rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo one month simple imprisonment. Appellants Nos. 2 to 4 viz., Kallu, Smt. Ramadevi and Smt. Panchi Devi : For commission of offence under Section 302/34 of Indian Penal Code, they were sentenced to undergo rigorous imprisonment and to pay a fine of Rs. 2000/-, in default of payment of fine to further undergo three months simple imprisonment each. For commission of offence under Section 325/34 of Indian Penal Code, the appellants were sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo two months simple imprisonment each. For commission of offence under Section 323 of Indian Penal Code, the appellants were sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo one month simple imprisonment each." All the substantive sentences were ordered to run concurrently. 6. In the present case, Subhash had died. His wife Smt. Mukesh Devi [PW-1], mother - Smt. Bharpai [PW-2] and father Sardara [PW-4] had suffered injuries. 7. Criminal proceedings were set into motion on a written-complaint lodged by Rajesh Kumar Yadav [PW-3], who is not an eye-witness of the occurrence. 8. Rajesh Kumar Yadav [PW-3] presented a written-report [Exhibit P/4] before A.S.I. Balvir Singh [PW19] posted at Police Station, Bansur. On the basis of said report, a formal First Information Report, [Exhibit-P/5] was registered. 9. The First Information Report lodged at the instance of Rajesh Kumar Yadav [PW-3], when translated into English reads as under:- To, The Station House Officer, Police Station, Bansur Sir, It is submitted that today [11.07.2003] at about 09:00 A.M. my father - Sardara Ram in the house was taking meals and other family members were doing domestic work. Suddenly, at that time Kalu and Mahesh sons of Sohan Lal, Rama wife of Mahesh, Panchi wife of Kalu, by caste Aheer and Manna Lal s/o. Omkar, by caste Swami, resident of Khohri came together with the common intention. They were armed with iron pipe, kasia and lathi and entered into our house. They started giving abuses on the name of mother and sister. My father restrained them, then all started beating my father. Kallu gave Kasia blow on the head of my father. They were armed with iron pipe, kasia and lathi and entered into our house. They started giving abuses on the name of mother and sister. My father restrained them, then all started beating my father. Kallu gave Kasia blow on the head of my father. Mahesh gave injury with lathi on the foot of my father. Mother came to the spot, she intervened to save my father, then Panchi gave Kasia blow on the head of my mother and Rama gave lathi blow on her hand. Manna gave injury with lathi. Meanwhile, my brother Subhash and bhabhi, Mukesh came forward to save them, at that time Kallu gave kasia blow on the eye of Subhash and Mahesh gave injury with pipe on his head, then all started causing injuries. Mukesh my bhabhi was pregnant. Rama gave injury with lathi on her abdomen. They also caused injuries on her back. Meanwhile, at that time Mukesh, Balla, Ramjilal, Narayan, Mahesh Chand etc. were attracted to the spot. Condition of Subhash and Mukesh was serious. Subhash was referred to Alwar Hospital. Yesterday, some dispute had arisen because Kallu had put a stick in the boundary of the field. All accused had come with common intention to kill us. I am presenting report. Action be taken. At the time of occurrence, I had gone to School, later-on, I learnt about the occurrence and have presented the report." 10. A perusal of the above said First Information Report reveals that Rajesh Kumar Yadav [PW-3] has neither sustained any injuries in the occurrence, nor he claims himself to be an eye-witness of the alleged occurrence. The above said First Information Report was investigated. A report of investigation under Section 173 Cr.P.C. was submitted. Accused and the report of investigation under Section 173 Cr.P.C. were committed by the Court of Magistrate to the Court of Sessions and case was entrusted for trial to the Additional District & Sessions Judge [Fast Track], Behror, District Alwar. 11. On 22.04.2004 the Court of Additional District & Sessions Judge [Fast Track], Behror, District Alwar charged the appellants for various offences. 12. 11. On 22.04.2004 the Court of Additional District & Sessions Judge [Fast Track], Behror, District Alwar charged the appellants for various offences. 12. The first charge stated that on 11.07.2003 at about 09:00 A.M. in Village Jungle Mauza Khohri accused came armed in the field, in possession of deceased Subhash and had caused injuries to him for which they were substantively liable for offence under Sections 302 I.P.C. or in alternative for offence under Section 302/34 I.P.C. 13. The second charge stated that all these appellants had caused grievous injuries with the blunt weapon on the person of Sardara Ram. Therefore, they have committed an offence punishable under Section 325/34 I.P.C. 14. The third charge was framed against all the appellants for offences punishable under Sections 447, 323 and 323/34 I.P.C. for having trespassed into the field of deceased - Subhash and for causing simple injuries. 15. Thereafter, prosecution closed its evidence and the statement of the accused were recorded under Section 313 of the Code of Criminal Procedure, 1973 and all incriminating evidence was put to them, they denied the same and pleaded innocence. 16. Before we take note of the ocular evidence, it will be necessary for us to notice injuries suffered by the witnesses in the occurrence. 17. Dr. Subhash Yadav [PW-12] had medico legally examined - Smt. Mukesh Devi wife of deceased - Subhash and Smt. Bharpai [PW-2], mother of deceased, Subhash. This witness stated that on 11.07.2003 at about 03:10 A.M. he had medico legally examined - Smt. Mukesh Devi. She was having two injuries. Injury No.1 was contusion of 4x2 c.m. on the right shoulder. Injury No.2 was a complaint of pain on the shoulder. 18. On the very same day i.e. on 11.07.2003, this witness had also medico legally examined - Smt. Bharpai and found three injuries on her person. Injury No.1 was lacerated wound of 1x = c.m. on the back side of the head. Injury No.2 was contusion of 5 x 2= c.m. on the left forearm. Injury No.3 was a complaint of pain in the chest. 19. On the very same day also at 02:10 P.M., this witness had examined - Sardara Ram. There were two injuries on his person. Injury No.1 was lacerated wound of 3x= c.m. on the back side of head and on touch injury was oozing blood. Injury No.3 was a complaint of pain in the chest. 19. On the very same day also at 02:10 P.M., this witness had examined - Sardara Ram. There were two injuries on his person. Injury No.1 was lacerated wound of 3x= c.m. on the back side of head and on touch injury was oozing blood. Injury No.2 was penetrating wound of =x= c.m. oozing blood on the thigh. There were abrasions around injury on the left foot. After receipt of x-ray examination, injury No.2 on the person of Sardara Ram was declared grievous in nature. In cross-examination, this witness stated that duration of the injuries was within four to six hours. 20. Dr. Sushma Bhatnagar [PW-16] deposed that she was posted as Radiologist in general hospital, Alwar. This witness stated that all injuries on the person of Smt. Bharpai were found to be simple in nature. This witness further stated that as per radiological examination of Sardara Ram, she found that his right fibula was fractured. Fracture found by Radiologist correspond to injury No.2 on the person of Sardara Ram. 21. Dr. Amar Singh Rathore [PW-24] on 11.07.2003 had medico legally examined - deceased Subhash. He found three injuries on his person. Injury No.1 was lacerated wound of 7x1 c.m. on his right parietal region. Injury No.2 was contusion of 8x4 c.m. on the right eye. Both the eyes had swelling and were bluish. Injury No.3 was contusion of 6x5 c.m. in red colour on the left side of the face. All three injuries were advised x-ray. In cross-examination, this witness stated that the injury caused on the right side of the head, may result into swelling of the eyes. Deceased - Subhash was referred from Alwar Hospital to S.M.S. Hospital, Jaipur. He died on the very same night i.e. on 11.07.2003 at 10:55 P.M. Postmortem was conducted on 12.07.2003 at 03:30 P.M. by Dr. Sumant Dutta [PW-17]. This witness further stated that the left eye was black. Since deceased - Subhash was operated, he had found three injuries on the dead-body. 22. From internal examination, Dr. Dutta [PW-17] opined that there was hematoma present on the fronto parietal region and the tempo parietal region. Extra sub-dural hematoma was also present. As per opinion of the doctor, cause of death was 'coma' due to the head injury. The head injury was declared fatal. 23. 22. From internal examination, Dr. Dutta [PW-17] opined that there was hematoma present on the fronto parietal region and the tempo parietal region. Extra sub-dural hematoma was also present. As per opinion of the doctor, cause of death was 'coma' due to the head injury. The head injury was declared fatal. 23. Shri Arvind Kumar Gupta, the learned counsel appearing for the accused-appellants, has submitted that Smt. Ghisi, mother of accused - Mahesh and Kallu had also suffered injuries in the occurrence, along with appellant - Mahesh. However, the Counsel appearing for the accused-appellants has very candidly submitted that no document regarding sufferance of injury by Mukesh has been placed on record. But it has come in the evidence that Smt. Ghisi was examined at the same time when the injured had sustained injuries and her medico legal report has been proved on record as Exhibit D/13. 24. A perusal of medico legally report [Exhibit D/13] reveals that upper teeth of Ghisi was missing. However, it is to be noted here that Doctor had found no injury near & outer surface of the lips. 25. Having noticed the medico legal evidence, we shall refer to the statement made by injured witnesses in the Court. 26. Smt. Mukesh Devi [PW-1] widow of deceased- Subhash stated that on 11.07.2003 at about 09:00 A.M. she, her mother-in-law - Smt. Bharpai [PW-2] and father-in-law - Sardara Ram [PW-4] were present in the house at well situated in Village Khohri. She was present in the house and was doing household work. The accused, present in the Court, came. Mahesh was armed with an iron pipe, Kallu was armed with a kasia lathi, Panchi was also armed with a kasia lathi and Rama was armed with a lathi. Immediately, they started beating her father-in-law at the boundary of the field. Kallu from the lathi side of kasia gave injury on the head of her father-in-law - Sardara. Mahesh gave injury on his left foot. Rama and Panchi, accompanied by accused, caused injuries to father-in-law or not, this fact was not known to witness. Then her mother-in-law come forward. Panchi gave lathi blow of kasia to her mother-in-law and Rama gave lathi blow to her mother-in-law on the hand. They also caused injury on her shoulders. On hearing noise, her husband was attracted to the spot. All accused encircled him. Then her mother-in-law come forward. Panchi gave lathi blow of kasia to her mother-in-law and Rama gave lathi blow to her mother-in-law on the hand. They also caused injury on her shoulders. On hearing noise, her husband was attracted to the spot. All accused encircled him. Kallu gave injury on the right eye of her husband from lathi side of kasia. Mahesh gave injury of iron pipe on the head of her husband. Rama gave injury of lathi on his ribs. Panchi gave injury of lathi of kasia on his back. It was further stated that due to dispute over the boundary of the field, these persons had caused injuries. They were brought to Hospital. Her husband was referred to Alwar. 27. Smt. Bharpai, the mother of the deceased, appeared as PW-2. She corroborated the testimony of Smt. Mukesh Devi [PW-1]. 28. Sardara [PW-4] also deposed on the same lines and stated that his son died on the very same day of the occurrence. 29. Rajesh [PW-3] first informant told that he came to his house and found that the family members were lying injured and mother - Smt. Bharpai had narrated occurrence to him. 30. Ramji Lal [PW-6] stated that eleven-months ago at about 09:00 or 09:30 A.M. when he and his father were coming to Village Khohri from Khohri bus stand, he found that on the well of Sardara hue and cry was raised and he found that fight was going-on. He reached near the well and found all accused were causing injuries to Subhash. Sardara had also suffered injury. 31. Phool Chand [PW-7] stated that eleven months ago at about 09:30 A.M. he was present at his well, which is at a distance of one field from the well of Sardara. There was a dispute over the passage between Sardara and accused. He found that near well of Sardara, noise was being raised and they were fighting. This witness stated that scuffle was going-on and he cannot tell that who caused injury to whom i.e. " xqre xqrh gks jgh Fkh fdlus fdlds ekjh irk ugha " 32. Lalaram [PW-9] stated that when he reached at the spot, accused ran away and this witness was declared hostile. 33. This witness stated that scuffle was going-on and he cannot tell that who caused injury to whom i.e. " xqre xqrh gks jgh Fkh fdlus fdlds ekjh irk ugha " 32. Lalaram [PW-9] stated that when he reached at the spot, accused ran away and this witness was declared hostile. 33. Narayan [PW-10] stated that about eleven months ago at about 9/10 P.M. he reached at the spot and found that both the sides were having scuffle i.e." eSa igqapk rc nsok ysoh gks jgh FkhA " The word " nsoh&ysoh ", when translated into English, according to Counsel for the parties mean "both were causing injuries to each other". 34. Having broadly noted the deposition of the witnesses, we are of the view that the evidence of the witnesses, who had participated in the investigation or to prove link evidence is not required to be noticed. 35. Counsel appearing for the accused-appellants submitted that Rajesh [PW-3] was admittedly not present at the scene of occurrence and is not an eye-witness. Counsel further submitted that in the present case, pattern of the occurrence has been laid by non eye-witness, therefore, injured witnesses were bound and under compulsion to follow the version or the story unfolded by non-eye-witness. Therefore, this Court should be on guard, while examining the evidence of the witnesses. 36. Mr. N.S. Dhakad, the learned Public Prosecutor appearing for the State, duly assisted by Mr. Rajendra Soni, the learned counsel appearing for the complainant, has submitted that the very fact that in the present case, three persons, namely Smt. Mukesh Devi [PW-1], Smt. Bharpai [PW-2] and Sardara [PW-4] had sustained injuries, this Court ought to place its implicit reliance upon their testimonies considering the fact that the defence has not proved on record the injuries received by the accused. 37. We have given our thoughtful consideration to the arguments advanced by the learned counsel appearing for the appellants, the learned counsel appearing for the complainant, as well as, the learned Public Prosecutor appearing for the State and perused the entire record of the case. 38. We accept argument raised by the learned counsel appearing for the accused-appellants that the written-report [Exhibit P/4] was lodged by a person, who had not witnessed the occurrence. 39. 38. We accept argument raised by the learned counsel appearing for the accused-appellants that the written-report [Exhibit P/4] was lodged by a person, who had not witnessed the occurrence. 39. It is to be noted here that in the present case, occurrence had taken place on 11.07.2003 at about 09:00 A.M. and the written-report to this effect was presented on 11.07.2003 at about 02:00 P.M. and the special report reached the Illaqa Magistrate on 14.07.2003 at 01:55 P.M. Thus, there is unexplained delay of three days in reaching of the special report. 40. Therefore, we cannot rule out that the First Information Report was result of consultations and deliberations and contains an exaggerated version. Therefore, this Court has to sift the grain from the chaff and find out the origin of the occurrence. The witnesses, in our opinion, are not telling the whole truth as it is undeniable fact that witnesses have shifted the place of occurrence from their house to the field and that too near the boundary, which was root cause of the dispute between the parties. The field of Mahesh is adjoining to the field of Sardara [PW-4]. 41. Amar Singh [PW-26], S.H.O. Police Station Bansur being Investigating Officer admitted in cross-examination that inside the house, no signs of occurrence [fight] were found. Accused had not entered inside the house; mark 'X' in site-plan [Exhibit P/6] is at distance of 20-25 steps whether distance was 100 or 50 steps instead of 20-25 steps, Investigating Officer, could not tell with certainty. 42. It is an admitted fact that a cross-case was also registered against the complainant-party for causing injury to Ghisi. Investigating Officer, in cross-examination, had admitted that Mahesh had also suffered injuries. According to Investigating Officer injury statement of Mahesh was made part of record, but no such medical legal report is available and same has been withheld from Court. In the light of above circumstances, deposition of independent witnesses assume importance. 43. Phool Chand [PW-7] independent witness stated that both the sides were fighting and this witness stated that there was " xqre xqrha ", between both the sides. 44. Narayan [PW-10], another independent eye-witness stated that there was a fight between both the parties and when he reached there " nsok ysoh gks jgh FkhA " 45. 43. Phool Chand [PW-7] independent witness stated that both the sides were fighting and this witness stated that there was " xqre xqrha ", between both the sides. 44. Narayan [PW-10], another independent eye-witness stated that there was a fight between both the parties and when he reached there " nsok ysoh gks jgh FkhA " 45. We also cannot ignore the fact that in the present case, all injuries, except one, which is penetrating wound have been caused by a blunt-weapon, even though accused have been attributed sharp-edged weapon. Injured witnesses while appearing in Court have been under compulsion to say that the injuries were caused with the lathi side of kasia. Thus, the injured witnesses have not only changed the place of occurrence, but also the manner in which weapons were used for causing injuries. Mukesh had suffered two injuries, out of which one was contusion on the right shoulder and another was a complaint of pain on the shoulder. Sardara had suffered three injuries. Injury No.2 is fracture of fibula. Even though, medical evidence describe injury No.2 to be penetrating wound, no such weapon has been assigned to any accused by the witness. 46. Taking totality of circumstances, it can be safely said that on the day of occurrence, a sudden dispute had ensued between the parties over the boundary of the field and that too at the spur of the moment and then injuries were caused by the accused. This fact is fortified by deposition of independent witnesses Phool Chand [PW-7] and Narayan [PW-10]. Therefore, it is not a case of common intention of the accused to commit offence of culpable homicide amounting to murder, rather, testimony of independent witnesses suggest that while working in the field in the early hours of morning some hot words were exchanged and parties came to blows. Accused party prevailed and had an edge in the altercation and by using blunt weapon proved better than the complainant party. 47. Since registration of cross-case is an admitted fact, we are of the view that in the present case, Section 34 of Indian Penal Code cannot be invoked and we shall hold each accused responsible for his own act. 48. It is a case of individual liability. 49. 47. Since registration of cross-case is an admitted fact, we are of the view that in the present case, Section 34 of Indian Penal Code cannot be invoked and we shall hold each accused responsible for his own act. 48. It is a case of individual liability. 49. Having come to conclusion that Section 34 I.P.C. cannot be invoked and each accused is to be convicted and sentenced for his own action, we have to ponder as to what offence has been committed by Mahesh who had caused fatal injury on the head of deceased - Subhash. 50. Since the occurrence had ensued without any premeditation in the fields over the boundary and that is why prosecution injured witnesses have left story of accused entering into their house, we are of the view that utmost knowledge can be attributed to Mahesh and not the intention to commit offence of culpable homicide amounting to murder. 51. As a result of above discussions, we hold appellant No.1, namely Mahesh guilty for commission of offence punishable under Section 304 Part-II I.P.C. and, thus, convert the offence while setting aside life imprisonment imposed upon him and order that he shall undergo rigorous imprisonment for a period of seven-years. 52. Appellant No.2, namely Kallu has caused injury falling within the ambit of Section 325 I.P.C. He shall undergo sentence already awarded by the trial Court for commission of offence punishable under Section 325 I.P.C. However, he is acquitted of the offence punishable under Section 302/34 I.P.C. 53. Similarly, appellant Nos.3 and 4, namely Smt. Rama Devi and Smt. Panchi Devi are acquitted of offences under Sections 302/34 and 325/34 I.P.C. They are held individually liable for offence under Section 323 I.P.C. and considering they are ladies, sentence for offence under Section 323 I.P.C. is reduced to period already undergone. 54. With the above modification in the offences and sentence, the present appeal stands disposed of.Appeal Disposed of. *******