JUDGMENT : - Rathore, J. Being aggrieved of the judgment dated 06th April, 2004 passed by the learned Additional Sessions Judge (Fast Track) No.3, Bharatpur, Camp Bayana in Sessions Case No.141/2003 (15/1998), the accused appellants have preferred this appeal. Subsequently, the accused appellants Suraj son of Prabhu died in jail and his appeal stood abated. The learned trial court had convicted and sentenced the accused appellants as under: Accused appellants Phoolu, Rajjo and Suraj. Under Section 147 IPC : 1 year rigorous imprisonment. Under Section 323 IPC : 1 year rigorous imprisonment. Under Section 324 IPC : 2 years rigorous imprisonment. Under Section 452 IPC : 3 year rigorous imprisonment & a fine of Rs.500. In default of payment of fine 1 month RI. Under Section 302/149 IPC : Life imprisonment and a fine of Rs.2,000/-. In default of payment of fine 3 months RI. Accused appellant Rajendra son of Ram Prasad Under Section 147 IPC : 1 year rigorous imprisonment. Under Section 323 IPC : 1 year rigorous imprisonment. Under Section 324/149 IPC : 2 years rigorous imprisonment. Under Section 302/149 IPC : Life imprisonment and a fine of Rs. 2,000/-. In default of payment of fine 3 months RI. Accused appellant Jaggo @ Jagdish son of Sukha Under Section 147 IPC : 2 years rigorous imprisonment. Under Section 323 IPC : 1 year rigorous imprisonment. Under Section 324 IPC : 2 years rigorous imprisonment. Under Section 302/149 IPC : Life imprisonment and a fine of Rs.2,000/-. In default of payment of fine 3 months RI. 2. The prosecution case arises out of FIR No.445/1997 lodged by Roshan son of Naniga at 3.45 p.m. on 20.10.1997 at police station Roopbas district Bharatpur. An incident in the present case had taken place at about 5.00 p.m. on 19.10.1997. As per the report, the informant and others were sitting at their house, after having returned from their daily work. At that time, accused Suresh, Rajjo, Phuloo, Suraj, Som Prakash, Jaggo, Ram Prasad, Rajendra, Gordhan brother-in-law of Jaggo, Malla, Nathya and Rasso, came duly armed with various weapons and attacked Hari Mohan and his family members. This resulted in death of Hari Mohan and other persons were injured. After getting the medical examination conducted, the injured were taken at about 9.00 p.m. on 19.10.1997 to the hospital at Roopbas and thereafter they were referred to the General Hospital, Bharatpur. This resulted in death of Hari Mohan and other persons were injured. After getting the medical examination conducted, the injured were taken at about 9.00 p.m. on 19.10.1997 to the hospital at Roopbas and thereafter they were referred to the General Hospital, Bharatpur. After a short while, Hari Mohan died and Roshan, Pappu and Mukesh were other persons who had sustained injuries. Rajjo is said to have inflicted injury on the head of Hari Mohan, who fell down. Accused Suraj, Phoolu and Suresh inflicted injuries on the neck by hockey sticks. Suraj and Phoolu also inflicted injuries on the head. The condition of Hari Mohan then deteriorated and he died during the treatment being given at General Hospital, Bharatpur. The medical treatment to other three persons had continued. The allegations in respect of remaining accused was that they pelted stones, inflicted injuries by lathis and hockey sticks on other members of the family. 3. On the aforesaid report, an FIR No. 445/1997 was registered for the offences under sections 147, 148, 149, 452, 323 and 302 IPC and the police started investigation. It may also be mentioned here that the members of the accused party, such as Jagdish, Suresh and Rajendra, had sustained injuries by sharp edged weapons as well as blunt weapons. An FIR came to be lodged by accused appellant Phoolu at police station Roopbas on the day of incident itself i.e. 19.10.1997, which was registered as FIR No.444/1997. 4. On completion of investigation in FIR No.445/1997, challan came to be filed against the accused appellants as well as co-accused Ram Prasad and Suresh for the offences under sections 147, 148, 149, 323, 452 and 302 IPC before the learned Judicial Magistrate, Roopbas. Thereafter, the case was committed to the court of Sessions which was then transferred to the court of Additional Sessions Judge No.2, Bayana and from there to the court of Additional Sessions Judge (Fast Track) No.3, Bharatpur. The trial commenced with framing of charges against the appellant Jagdish @ Jaggo for the offences under sections 147, 148, 323, 324, 452 and 302 IPC and against other accused persons for the offences under sections 147, 148, 323, 324/149, 452 and 302 IPC. The accused appellants denied the charges and claimed for trial. 5. The prosecution had, in support of its case, produced 17 witnesses and submitted 42 documents which were duly exhibited by the trial court. The accused appellants denied the charges and claimed for trial. 5. The prosecution had, in support of its case, produced 17 witnesses and submitted 42 documents which were duly exhibited by the trial court. Thereafter, the statements of the accused appellants were recorded under section 313 Cr.P.C. wherein they denied the prosecution case and submitted that the members of the complainant party had in fact given beating to them and other family members. The members of the accused party, such as Rajendra, Jagdish, Rajjo and Suresh, had also sustained injuries. The accused persons had produced Dr. Ram Khiladi Meena (DW-1) as a witness in their defence and had submitted 10 documents. As cross cases had been lodged between the parties, both of them were tried together by the learned trial court. The judgment in the cross case had also been pronounced on 06.04.2004, whereby the members of the complainant party had been acquitted and from the accused side Ram Prasad and Suresh were also acquitted. Being aggrieved of the judgment dated 06.04.2004 passed by the learned Additional Sessions Judge (Fast Track) No3., Bharatput, this appeal has been filed and it has come before us for hearing. 6. Learned counsel for the accused appellants has assailed the impugned judgment passed by the learned trial court on various grounds and submitted that the same is not in accordance to the settled principles of law or on the basis of any legal evidence produced on record. Further it has been submitted that the prosecution has failed to prove its case beyond reasonable doubt as the testimony of the prosecution witnesses is inconsistent and contradictory. It has also been submitted by the counsel for the accused appellants that the learned trial court had erred in not taking into consideration the fact that the accused appellants had promptly lodged the FIR against the complainant party which was first in point of time as the report lodged by them was on the subsequent day i.e. 20.10.1997. The members of the accused party had sustained injuries which were incised wounds as well as lacerated wounds on vital parts of their body. So far as members of the complainant party are concerned, none of them had sustained incised wound or lacerated wound, including the deceased and their injuries were simple in nature by blunt weapon. The members of the accused party had sustained injuries which were incised wounds as well as lacerated wounds on vital parts of their body. So far as members of the complainant party are concerned, none of them had sustained incised wound or lacerated wound, including the deceased and their injuries were simple in nature by blunt weapon. Counsel for the accused appellants had also submitted that the prosecution had totally failed to explain the injuries sustained by the members of the accused party. This itself cast a shadow of doubt on the prosecution case. Even the deceased had sustained injuries which were in the nature of swellings and abrasions. There was neither any injury by sharp edged weapon nor any lacerated wound by blunt weapon. This is clearly reflected from the post-mortem report (Ex.P-38). The learned trial court had further erred in not considering the fact that though the allegation had been made that injuries were inflicted on the head of the deceased but none of the accused was specifically attributed the same. Therefore, the prosecution had failed to establish as to who had caused the fatal blow to the deceased. The prosecution had also failed to establish the motive behind the incident or its cause. As a matter of fact, the incident had taken place all of a sudden and the members of the complainant party had given beating to the accused persons. They were infact, the aggressors. It was also pointed out that the so called eye witnesses were the accused persons in the cross case. No independent witness had supported the case of the prosecution. For these reasons, the learned counsel has submitted that the prosecution has failed to establish its case by legal evidence and that the guilt of the accused has not been proved beyond reasonable doubt. Hence, the impugned judgment deserves to be set aside. 7. On the contrary, the learned public prosecutor has supported the judgment passed by the trial court. He has submitted that there is no doubt about the fact, from the evidence on record, that the accused appellants had inflicted injuries to the deceased. Further it is established that the deceased had died on account of the injuries sustained by him at the hands of the accused persons. He has submitted that there is no doubt about the fact, from the evidence on record, that the accused appellants had inflicted injuries to the deceased. Further it is established that the deceased had died on account of the injuries sustained by him at the hands of the accused persons. It has also been submitted by the learned public prosecutor that the prosecution has to prove its case beyond reasonable doubt and not beyond all doubts. On careful perusal of the statements of the prosecution witnesses, it is more than clear that it was the accused appellants who had committed the crime as a result of which the deceased Hari Mohan had died. The learned public prosecutor has also submitted that minor inconsistencies in the statements of the prosecution witnesses are rather natural and on account of such petty errors, the entire prosecution case cannot be thrown out. It is human nature that narration of facts with regard to an incident varies from person to person, particularly when there had been a time gap between the incident and the recording of the statements. Therefore, the learned public prosecutor has submitted that the court below has rightly considered the evidence on record; appreciated the same and had convicted and sentenced the accused persons in accordance to the settled principles of law. Hence, the present appeal does not have any force and the same deserves to be dismissed. 8. We have considered the submissions made by the learned counsels for the rival parties and have carefully perused the evidence adduced before the learned trial court. As per case of the prosecution, an incident took place on 19.10.1997 at about 05.00 pm. When the complainant party were sitting at their residence all the accused persons, duly armed with various weapons, came and gave beating to Hari Mohan and his family members. Hari Mohan was seriously injured and he was taken to the hospital at Roopbas, from there he was referred to the General Hospital, Bharatpur. The other persons injured in the incident were Roshan, Pappu and Mukesh. Subsequently, Hari Mohan died from which it is alleged that the accused Rajjo had inflicted an injury on his head, as a result of which he fell down. Further, it is alleged that the accused Suraj, Phoolu and Suresh had also inflicted injury by hockey sticks. The other persons injured in the incident were Roshan, Pappu and Mukesh. Subsequently, Hari Mohan died from which it is alleged that the accused Rajjo had inflicted an injury on his head, as a result of which he fell down. Further, it is alleged that the accused Suraj, Phoolu and Suresh had also inflicted injury by hockey sticks. According to the case of the prosecution, the remaining accused persons had pelted stones, inflicted injuries by lathi and hockey sticks on the members of Hari Mohan's family. Soon after the incident, the members of the complainant party, including Hari Mohan were taken to the hospital and their medical examination was conducted. According to the medical report of Hari Mohan (Ex.P/35), following injuries were sustained by him: 1 Red Diffuse Swelling 8X7 cm. On Forehead Mid Part X-ray skull Blunt 2 Red Diffuse Swelling 5X4.5 cm. Rt. Parietal region mid 1/3 Do Blunt 3 Abrasion with clot 1X1 cm. On Forehead just above glebella Do Blunt 4 Lacerated wound clot 2X1 cm. Through & through Lt. Alae Nose Simple Blunt 5 Lacerated wound clot 1X1 cm. MD on chin Simple Blunt 6 Abrasion Clot 1.5X1 cm. Left Fore Arm Dorsal surface Mid 1/3 Simple Blunt Injury No.1, 2 and 3 were advised for X-ray. Injury No.4, 5 and 6 were simple in nature. The information with regard to admission of Hari Mohan at the hospital was sent to the Incharge, Police Chowki (Ex.P/36). Thereafter in the morning at about 04.10 am of 20.10.1997, Hari Mohan succumbed to his injuries and died. The information in this regard was also sent to the Incharge of Police Chowki (Ex.P/37). On police request, the postmortem of the deceased Hari Mohan was conducted at 10.45 am. on 20.10.1997 and a report was prepared (Ex.P/38). The deceased Hari Mohan sustained following injuries, as per the postmortem report:- 1 Red Diffuse Swelling 8X7 cm. On Forehead Mid Part 2 Abrasion with clot 1X1 cm. On Forehead just above glabella 3 Red Diffuse Swelling 5X4.5 cm. Rt. Parietal region mid 1/3 4 Lacerated wound with clot 1X1 cm. On chin 5 Lacerated wound clot 2X1 cm. Through & through Lt. Alae Nose 6 Abrasion Blood Stained 1.5X1 cm. Left Fore Arm Dorsal surface Mid 1/3 All the injuries were by blunt weapon and were ante mortem. Rt. Parietal region mid 1/3 4 Lacerated wound with clot 1X1 cm. On chin 5 Lacerated wound clot 2X1 cm. Through & through Lt. Alae Nose 6 Abrasion Blood Stained 1.5X1 cm. Left Fore Arm Dorsal surface Mid 1/3 All the injuries were by blunt weapon and were ante mortem. On internal examination, following injuries were found in the skull:- ^^flj dks [kksyus ij LdsYi ds uhps QksjgsM ij gsekVksek ekStwn Fkk ,oa 6 x 5 lseh- vkdkj dk gsekVksek nkfgus iSjkbZVy fgLls es ekStwn Fkk [kksiM+h dh ckgjh pksV 1] 2] 3 ds uhps gsekVksek ds ukd ds LdsYi dk gVkus ij [kM+h fn’kk es ÝsDpj tks QksjgsM ds ukd ds Åij ds fgLls ¼xysfcyk½ ls pyrk gqvk nkfgus iSjkbZVy fgLls ds Åijh rhls Hkkx ij chp dh ykbu rd tk jgk FkkA [kksiM+h dh gfMM~;ks dks [kksyus ij lcM~;wjy gseksVksek ÝUVy yksc vkSj nkfgus iSjkbZVy yksc es ekStwn FkkA fnekx dks [kksyus ij ,UVhfj;j Øsfu;y Qkslk ,oa nkfgus rjQ ds fefMy Øsfu;y Qkslk es [kwu tek gqvk FkkA fnekx ds ÝUVy vkSj jkbZV iSjkbZVy yksc daVw;TM Fks vkSj jkbZV iSjkbZVy yksc es 2.5 x 1 lseh vkdkj dk ysfljs’ku FkkA e`rd ds vU; vo;o LoLFk FksA^^ The death was caused due to ante-mortem head injuries resulting in fracture and subdural hematoma. 9. The injured Roshan was also medically examined at 06.20 am. on 20.10.1997 (Ex.P/40). The following injuries were found on his person: 1 Lacerated wound with clot 2X1 cm. X Muscle deep Right Parietal Region posterior 1/3 Simple Blunt 2 Red Diffuse Swelling with local tenderness right hand involving right hand fingers (distal phalanx of right ring finger, middle phalanx of middle finger, distal phalanx of index finger right side X-ray Blunt 3 Incised wound with clot 2.5X1 cm. X Muscle deep Left hand CA and dorsal surface mid 1/3 Simple Sharp 4 Red diffuse swelling All over left hand, little and ring and middle fingers distal and middle phalanx Simple 5 Complaint of Pain with local tenderness Right Shoulder Simple Blunt Injury No.2 and 4 were advised for X-ray and remaining injuries No.1, 3 and 5 were simple in nature. Injury No.3 was caused by sharp edged weapon and the remaining injuries were of blunt weapon. As no fracture was found in the X-ray report, injury No.2 and 4 were found to be simple. Injury No.3 was caused by sharp edged weapon and the remaining injuries were of blunt weapon. As no fracture was found in the X-ray report, injury No.2 and 4 were found to be simple. Pappu son of Roshan was also medically examined (Ex.P/5) and following injuries were found on his person. 1 Lacerated wound with clot ½ X ½ cm. X skin deep Left parietal near mid line mid 1/3 Simple Blunt 2 Red diffuse swelling with local tenderness 5X4 cm. Right hand dorsally outer 1/3 X-ray right hand Blunt 3 Red bruise 4X2 cm. Left hand upper 1/3 posterio laterally Simple Blunt 4 Red bruise 3X2 cm. Left shoulder posteriorly Simple Blunt Injury No.2 was advised for X-ray and the remaining injuries were simple in nature, caused by blunt weapon. Mukesh son of Roshan was also medically examined (Ex.P/2) and he sustained the following injuries: 1 Red Diffuse Swelling all over left hand dorsally with abrasion clot 2X1 cm. Proximal phalanx front left middle finger X-ray left hand Blunt 2 Abrasion with clot dry 2.5X2 cm. Rt. leg lower 1/3 anteriorly Simple Blunt 3 Complaint of Pain with local tenderness Front of neck Simple Blunt Injury No.1 was advised for X-ray and the remaining injuries No.2 and 3 were simple in nature. 10. As per the first information report, in all 12 persons were the assailants, namely Suresh, Rajjo, Phoolu, Suraj, Som Prakash, Jaggo, Ram Prasad, Rajendra, Gordhan, Malla, Nathya and Rasso. On conclusion of investigation, challan was filed only against seven persons, namely Phoolu, Rajjo, Ram Prasad, Jaggo @ Jagdish, Suresh and Suraj and they faced trial before the court below. On conclusion of the trial, the accused Ram Prasad and Suresh were acquitted. The remaining five persons were convicted and sentenced by the learned trial court as aforementioned and all of them preferred appeal before this Court. However, during the pendency of the appeal the accused Suraj expired and the appeal filed by him stood abetted. 11. The material witnesses in the present case, who had witnessed the occurrence, were Hakim (PW-11), Roshan (PW1), Mukesh (PW-5), Pappu (PW-9), Rajkumari (PW-2) and Smt. Vaikunthi (PW-3). Amongst these witnesses, Hakim was the only independent witness and the ramining were the relative/interested witnesses. The prosecution witness Roshan was father of the deceased Hari Mohan. Mukesh and Pappu were brothers of the deceased and sons of informant Roshan. Amongst these witnesses, Hakim was the only independent witness and the ramining were the relative/interested witnesses. The prosecution witness Roshan was father of the deceased Hari Mohan. Mukesh and Pappu were brothers of the deceased and sons of informant Roshan. Rajkumari was sister of the deceased and daughter of the informant Roshan. Smt. Vaikunthi was mother of the deceased Hari Mohan and wife of the informant Roshan. It is pertinent to note here that the only independent witness Hakim (PW-11) did not support the prosecution case and had been declared hostile. The informant Roshan (PW-1) had reiterated the contents of the first information report in the statement given by him before the trial court. He had also deposed that when he tried to intervene in the matter, the accused persons had also inflicted injuries to him. It is alleged that Jagdish had inflicted injury by tanchya on upper part of the palm of left hand. Rajendra is said to have inflicted injuries by lathis on fingers of his hand. He had also deposed in the cross-examination that marpeet had taken place near the steps situated outside of his house. Further, he had stated that after sustaining injuries, Hari Mohan had fell down near the steps of the house. Similarly, Rajkumari (PW-2) and Smt. Vaikunthi (PW-3) had also deposed that they had seen the incident and the accused persons had inflicted injuries. According to Rajkumari (PW-2), five accused persons came and started beating her brother with fist blows. She had also stated that her brothers Mukesh and Pappu and father Roshan were also given beating by the accused. According to Smt. Vaikunthi (PW-3), there were in all nine persons who had attacked them. In the cross-examination, Rajkumari (PW-2) had stated that next to her house, there is a rasta of the accused persons. The space before their kaccha house is also in front of the house of the accused Phoolu, etc. She was also confronted with the statement given by her to the police, during the investigation (Ex.D/2). 12. Smt. Vaikunthi had stated in her cross-examination that she was inside the house when 11 persons had brought out her son by giving fist blows. Further, she had stated that when she had raised the hue and cry, the informant Roshan came from the Nohra. 12. Smt. Vaikunthi had stated in her cross-examination that she was inside the house when 11 persons had brought out her son by giving fist blows. Further, she had stated that when she had raised the hue and cry, the informant Roshan came from the Nohra. She has also stated that in their defence, her sons had also inflicted lathi blows to the accused persons. But at the same time, she has stated that she did not see any injury having been caused to the accused persons. She was also confronted with her statement given before the police (Ex.D/3). Mukesh (PW-5) and Pappu (PW-9) are the sons of the informant and they had also deposed before the trial court that they had witnessed the incident and also sustained injuries. Mukesh had stated that Suresh inflicted injury by hockey stick on the neck of deceased Hari Mohan. Phoolu inflicted injury by lathi on his hand, Suraj inflicted injury on the right side as well as left side of the head of the deceased and Rajjo had inflicted injury by lathi on the middle of the head of the deceased. He had also deposed that he had not seen any other person at the place of incident. In the cross-examination, he deposed that his house was near the aamrasta and the house of the accused was also near the hut situated there. He denied the fact of pelting of stones at the time of incident as well as the fact of using lathi in self-defence. He was extensively confronted with his statement given, under Section 161 Cr.P.C., before the police (Ex.D/4). Pappu (PW-9) had also deposed that the accused had inflicted injuries in the incident which was also caused to him. He had also deposed that the incident was witnessed by Hakim, Ramesh, etc. Further he had stated that about 4 to 5 years prior to the incident, litigation was going on between the parties. He had alleged that during that period also, the accused had given beating to them. He was also confronted with his statement given before the police (Ex.D/5). It is pertinent to note here that both the sides had sustained injuries in the incident. The accused Rajjo @ Rajendra, Rajendra son of Ram Prasad, Jagdish and Suresh had sustained injuries by blunt as well as sharp edged weapons. He was also confronted with his statement given before the police (Ex.D/5). It is pertinent to note here that both the sides had sustained injuries in the incident. The accused Rajjo @ Rajendra, Rajendra son of Ram Prasad, Jagdish and Suresh had sustained injuries by blunt as well as sharp edged weapons. The accused Phoolu had lodged a report on 19.10.1997 at 11.30 pm. which came to be registered as FIR No.442/1997. It was in the night itself that the medical examination of the accused persons was got conducted. Report was lodged by the informant Roshan on 20.10.1997. 13. After having considered the manner in which the incident took place in the present case and the evidence adduced by the prosecution, including the medical evidence, the first and foremost question to be considered is as to whether the accused persons had formed an unlawful assembly for commission of the crime or not. The trial court has convicted and sentenced the accused persons with the aid of Section 149 IPC and as such, question of formation of unlawful assembly and that incriminating act was done by the accused to accomplish the object of unlawful assembly, gains importance. On examination of the evidence available on record, as discussed hereinabove, it is apparent that the assembly of five or more persons had been there and some persons were having arms with them. But merely on that count alone, it cannot be inferred that every member of the assembly was intending to commit mischief or any offence. In absence of such intention, the assembly cannot be termed as unlawful. In view of the various judgments rendered by the Hon'ble Supreme Court, ingredients to establish commission of an offence with the aid of Section 149 IPC can be summarised as under: (i) There must be an unlawful assembly; (ii) Accused must be a member of such assembly; (iii) Such unlawful assembly should have joined by the accused intentionally or should have continued with that knowingly; (iv) Accused was acquainted with the common object of the unlawful assembly; (v) As a member of unlawful assembly, the accused must be knowing that an offence is likely to be committed; and (vi) It must be shown that the incriminating act was done to accomplish any object of unlawful assembly. In the present case, the object of the accused party is not established. In the present case, the object of the accused party is not established. In absence of it, it cannot be said that the assembly intended to commit any offence. If the assembly is not found to be unlawful then the conviction with the aid of Section 149 IPC is not sustainable. 14. We have discussed the ingredients of Section 149 IPC in the preceding paras. The object is to be connected with the common object of the unlawful assembly of which the accused persons were members. In rioting when ever force or violence is used by an unlawful assembly or by any member thereof, in persuasion of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. There must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object, every member of the assembly would become liable for the same. However, in the present case, the prosecution has totally failed to prove nexus between the common object and the offence alleged to have been committed. Thus in our considered opinion, the prosecution has failed to establish the object which is very essential to form an unlawful assembly. In the facts and circumstances of the case and evidence available on record, the prosecution has failed to prove that accused persons were having common object in this case. 15. In view of the facts and circumstances of the case, the evidence on record and the principles of law, it is ample clear that the prosecution had not been able to prove the guilt of the accused appellants Rajendra and Jaggo, beyond reasonable dout. No injury has been caused to the deceased by them. It is pertinent to mention here that the trial court itself has not convicted the accused Rajendra and Jaggo for the offence under Section 452 IPC. The only offence, as per the prosecution evidence, which has been committed by the accused Rajendra is under Section 323 IPC and the accused Jaggo @ Jagdish under Section 324 IPC for having inflicted injury to Roshan by tanchya. The only offence, as per the prosecution evidence, which has been committed by the accused Rajendra is under Section 323 IPC and the accused Jaggo @ Jagdish under Section 324 IPC for having inflicted injury to Roshan by tanchya. Though the informant Roshan had not alleged so in the first information report but during the course of trial, he had deposed against the accused Jaggo @ Jagdish to have inflicted sharp edged weapon injury which is also corroborated by the medical evidence on record. Accordingly the ends of justice would meet if they are sentenced for the period already undergone by them. 16. From the prosecution evidence on record and in accordance to the deposition of the eye-witnesses, the accused Rajjo is said to have inflicted injury in the middle of the head of the deceased Hari Mohan. Though the evidence against him has come from the eye-witnesses who were close relatives of the deceased but it would not be proper to ignore the testimony of said witnesses which is also corroborated by the medical evidence on record. Even otherwise, there is no rule of law to the effect that the evidence of the relative witnesses cannot be accepted. Such testimony, no doubt, is to be subjected to careful scrutiny and to be accepted with caution. As per the prosecution evidence, the accused Phoolu had also inflicted injury on the head of the deceased by a blunt weapon. 17. After considering the facts and circumstances of the case and on careful perusal of the material on record, we are of the considered opinion that there is no infirmity in the finding arrived at by the learned trial court, in so far as the involvement of the accused Phoolu and Rajjo in the commission of the crime in the present case. The only question which requires consideration is as to whether the act of the said accused persons amounts to an offence of murder punishable under Section 302 IPC or it constitutes an offence other than that. The only question which requires consideration is as to whether the act of the said accused persons amounts to an offence of murder punishable under Section 302 IPC or it constitutes an offence other than that. After having anxiously considered the submissions made by the counsel for the appellants and on close scrutiny of the evidence on record; the manner in which the incident had taken place and the weapon of offence used by the accused appellants Phoolu and Rajjo, we are of the considered opinion that their act and intention can be imputed to bring their case within the ambit of Section 304 Part II IPC and they are to be sentenced for 7 years' Rigorous Imprisonment and fine of Rs.2,000/- each, in default of which each of them to further undergo 3 months' R.I. 18. Consequently, the appeal is partly allowed and the impugned judgment and order dated 06.04.2004 passed by Additional District and Sessions Judge (Fast Track) No.3, Bharatpur, Camp Bayana (Bharatpur) in Sessions Case No.141/2003 (15/1998) is set aside to that extent. The conviction and sentence awarded to the accused appellants are modified, as aforementioned. The accused appellants Phoolu S/o Sukha and Rajjo @ Rajender S/o Phoolu are in jail. They shall be released forthwith, if not required in any other case. The accused appellant Suraj S/o Prabhu has already expired in jail and his appeal stands abetted. The accused appellants Rajender S/o Ram Prasad and Jaggo @ Jagdish S/o Sukha are on bail. They need not surrender and their bail bonds stand discharged.