JUDGMENT A.B. Chaudhari, J. 1. Being aggrieved by the Judgment and Order dated 24th September, 2012 passed by Ninth Additional Sessions Judge, Nagpur, in Sessions Trial No. 59 of 2004, by which the Accused Nos. 1 to 5 were convicted for the offence punishable under Section 302 read with Section 149 of Indian Penal Code, so also for offences under Sections 147, 148, 324 read with Section 149, and 451 read with Section 149 of Indian Penal Code, and sentenced to suffer Rigorous Imprisonment for Life, the appellants-accused Nos. 1 to 5 have filed these appeals. These appeals are taken together for final hearing as they are directed against the common Judgment and Order in Sessions Trial No. 59 of 2004. Facts: 2. In brief, the prosecution case is, Asha Waghmare [PW4], informant, lodged a report against Accused Nos. 1 to 5 with Panchpaoli Police Station on 02nd November, 2003. In the report, she stated that she, her husband [since deceased], who was working in Nagpur Municipal Corporation, daughter Komal, and sons Ajay and Sanjay were residing at Yadavnagar, Nagpur, while accused persons were also living in the same locality. Four months before the date of incident, a quarrel had taken place between her husband, Accused No. 1 Niyaz Ali and Accused No. 4 Kanija Begum. On the report of Accused No. 4 - Kanija Begum, an offence punishable under Section 324, Indian Penal Code, was registered against her husband. Thereafter, they went reside at Chacher. On 02nd November, 2003, her father-in-law came to Chacher and informed that a theft had taken place in her house at Yadav Nagar and, therefore, all of them returned to their house and the incident of theft was reported to Police Station. 3. It is the case of the prosecution that on 2nd November, 2003 at about 8.30 p.m., while Asha, her husband and children were at home, Accused No. 1 Niyaz Ali with other accused persons entered her house with weapons and they assaulted her husband with weapons on chest, stomach and legs and she was assaulted on face and head. Thereafter, all the accused persons went away from their house. The offence was registered at Panchpaoli Police Station and investigation was undertaken. Inquest Panchanama was prepared, Post-mortem Report was obtained, accused persons were arrested, investigation was carried out, statements were record and finally charge-sheet was filed. 4. Thereafter, all the accused persons went away from their house. The offence was registered at Panchpaoli Police Station and investigation was undertaken. Inquest Panchanama was prepared, Post-mortem Report was obtained, accused persons were arrested, investigation was carried out, statements were record and finally charge-sheet was filed. 4. Learned Sessions Judge recorded the evidence tendered by the prosecution and finally, after hearing the evidence and arguments, convicted all the accused persons. Hence these are the appeals filed by all the accused persons. 5. In support of the appeals, learned counsel for the appellants-accused vehemently argued that:- [a] The prosecution failed to prove its case beyond reasonable doubt. [b] The evidence of Asha [PW 4], informant, her daughter Komal [PW 5] and her son Ajay [PW 6] is the only evidence on record. But then the said evidence is of interested witnesses and is required to be rejected. [c] At any rate, if the evidence is carefully perused, there are number of improvements, so also omissions amounting to contradictions brought on record and duly proved, which clearly show that the testimonies of these witnesses are false and fabricated only with a view to back the conviction. [d] Deceased Rajesh was himself smoking Ganja, selling Ganja in the Mohallaand creating nuisance in the Mohalla which has come on record. Not only that he had assaulted Accused No. 1 Niyaz Ali and his wife Kanija Begum and, therefore, offence under Section 324, Indian Penal Code, was also registered against him before the alleged incident. [e] Thus, the prosecution has miserably failed to prove its case and, therefore, all the accused persons are liable to be acquitted. In the alternative, counsel for the accused persons submitted that looking to the entire background, there is no element of any determination to commit murder of Rajesh, and, on the contrary, the evidence clearly shows that there were always quarrels amongst the neighbourers, i.e., the accused party on one side and deceased and his family on the other side due to habit of the deceased of smoking Ganja and his activity of selling Ganja and creating public nuisance in the Mohalla and not only that even assaulting the women accused for which he was prosecuted for offence under Section 324, Indian Penal Code. It is, thus, clear that there was no question of intention to commit murder, nor there is a motive, and, on the contrary, it appears, the quarrel had taken place. At any rate, none of the eye-witnesses have specified the role played by each of the accused persons in relation to the fatal assault and, therefore, the prosecution has failed to explain as to who caused number of injuries alleged to have been caused on the person of the deceased. They, therefore, prayed for reduction of sentence also. 6. Per contra, learned APP supported the impugned Judgment and Order and submitted that the findings are recorded on the basis of evidence and there is nothing wrong with the judgment of the Trial Court. Trial Court has rightly appreciated the evidence and convicted the Accused Nos. 1 to 5. The offence under Section 302, Indian Penal Code, only is made out and it cannot be said that any lesser offence is made out, as number of injuries were caused to the deceased. She, therefore, prayed for dismissal of the appeals. CONSIDERATION: 7. We have heard learned counsel for the rival parties. We have seen the entire record, including the evidence tendered by the prosecution. We have also carefully seen the Judgment of Trial Court. 8. We find that the evidence of Asha Waghmare [PW 4], Komal [PW 5] and Ajay [PW 6] is the only direct evidence of the wife and two children of the deceased. As contended, the evidence of these witnesses cannot be rejected merely because they are closely related to the deceased and, therefore, rule of caution is required to be applied while appreciating their evidence. 9. In so far as Asha [PW 4] is concerned, for going to the genesis of the prosecution case and for finding out the truth, what we find is that she admitted in para 4 of her cross-examination that her husband used to smoke Ganja and was an employee in Nagpur Municipal Corporation. The counsel for the accused argued that deceased was not only smoking Ganja, but he was also doing the business of sale of Ganja in the entire area and under intoxication of Ganja, used to create scene in the Mohalla and as a result, there used to be frequent quarrels between him and the neighboured. The counsel for the accused argued that deceased was not only smoking Ganja, but he was also doing the business of sale of Ganja in the entire area and under intoxication of Ganja, used to create scene in the Mohalla and as a result, there used to be frequent quarrels between him and the neighboured. Deceased Rajesh as well as his father-in-law both under intoxication of Ganja used to create scene in the society and, therefore, there were quarrels if Niaz Ali on number of occasions. She has also admitted that Kaniya, Accused No. 4, had lodged a report with Police Station against deceased Rajesh and an offence under Section 324, Indian Penal Code, was registered against him and thereafter he was released on bail. This fact clearly supports the case of the defence that deceased Rajesh was making nuisance in the residential area by smoking Ganja and, thus, there used to be quarrels between neighbours and the deceased. Not only that, it clearly appears from registration of offence under Section 324, IPC, that deceased used to attack neighbours, including Kaniya, the accused. 10. With this preface, then we find the evidence of Asha [PW 4]. PW 4 Asha stated in her evidence that accused Niyaz Ali and other accused persons came to her house. They pushed her in the kitchen and dealt with her husband by means of a knife. Accused Kaniya and her sister beat her by means of a blade and Gupti, due to which she received injuries on her cheek, head and back. Kaniya had thrown chilly powder in her eyes. That she was beaten by blade and Gupti is an omission amounting to contradiction which is duly proved in relation to Kaniya and her sister Shamim. In so far as the attack on the deceased Rajesh is concerned, she has not attributed any specific role to any of the accused in specific, except stating in general that her husband was dealt with by means of a knife which does not convey which particular accused had assaulted the deceased. 11. Then, looking to the evidence of Komal [PW 5], we find that Accused Niyaz Ali entered her house with Pravin @ Dadlya and Sheikh Israil along with other accused persons. Accused persons gave beating to her father in the kitchen room. It is not shown by what means, they gave beating to her father. 11. Then, looking to the evidence of Komal [PW 5], we find that Accused Niyaz Ali entered her house with Pravin @ Dadlya and Sheikh Israil along with other accused persons. Accused persons gave beating to her father in the kitchen room. It is not shown by what means, they gave beating to her father. Accused persons were possessing spear and knives. It is not clear as to which accused persons had what weapon. Accused Pravin had caused injuries to her mother on cheek by means of a knife. We then find from her cross-examination that she admitted about several omission in her evidence. We quote the following portion from para 7 of her evidence:- "7. Police recorded my statement on the next day of incident. Police recorded my statement in police station. Police recorded my statement at 10 am in the morning. My both the brothers were present with me at that time. They were standing near me when police were recording my statement. I do not remember if while giving statement I told police name of Pravin. It is not true to say that my mother did not receive any injury of knife. I had told police while recording statement that upto the gate my mother was dragged. I cannot assign any reason why the word 'gate' is not mentioned in my statement before police....." It is, thus, clear to us from reading of the above evidence that Komal also does not give the details about any particular accused assaulting her father by any weapon, except saying that accused persons were beating her father in the kitchen room. 12. The next is the evidence of Ajay Raju Waghmare [PW 6], the son of the deceased. He stated in his evidence that at the relevant time, his father was present in the kitchen room and at that time accused persons entered his house. Accused Niyaz Ali threw chilly powder at the gate in the eyes of his mother, which is contradictory to Asha's evidence. The accused persons were possessing weapons: knives and Gupti. The accused persons fell his father down and beat him. They caused injury to his father by means of knives and Gupti. When his mother intervened, she was also beaten by the accused. Women accused dragged his mother outside room. The accused persons were possessing weapons: knives and Gupti. The accused persons fell his father down and beat him. They caused injury to his father by means of knives and Gupti. When his mother intervened, she was also beaten by the accused. Women accused dragged his mother outside room. His evidence has been challenged in the cross-examination to show that neighbourers also saw the incident and based on that argument is the defence that no neighbour is examined as an independent witness to support the prosecution case. In so far as the omissions in the evidence of this witness are concerned, we find that his evidence mainly suffers from omissions on material aspects and we quote paragraph 3 from his evidence indicating several omissions in his evidence which are material and, therefore, we find that this witness cannot be fully believed:- "3. I had told police while giving statement that accused Niyazali gave threat to my father that he would kill him after release. I cannot assign any reason why the words "Chut ne ke bad" (on release) are not mentioned in my statement before police. I had told police while giving statement that in the evening at about 7 pm my mother was sitting at the gate outside the house washing mouth. I had told police while giving statement that accused Niyazali threw chilly powder in the eyes of my mother. I had told police while giving statement that my father was present in the kitchen room. I had told police while giving statement that my mother followed the accused when they entered my house. I had told police while giving statement that by falling on ground accused beat my father. I had told police while giving statement that accused Niyazali and Israel were beating my father inside the house and the women accused dragged my mother to outside room. I had told police while giving statement that the women accused and accused Dadya snatched ornaments from the person of my mother. I had told police while giving statement that again the women accused and accused Dadya went inside to beat my father. I had told police while giving statement that as 1 had come down from the staircase 1 know of the incident of beating occurred inside. I had told police while giving statement that then my sister had brought out my mother. I had told police while giving statement that as 1 had come down from the staircase 1 know of the incident of beating occurred inside. I had told police while giving statement that then my sister had brought out my mother. I had told police while giving statement that my sister was with police when the latter came to my house. I had told police while giving statement that when police came accused were just leaving my house. I cannot assign any reason why the above things are not mentioned in my statement before police. I had not told police while giving statement that my sister was standing near me on the staircase." 13. To sum up, we come to the conclusion from the ocular evidence of the witnesses discussed above that the accused Niyaz Ali had assaulted with knife. But then, in so far as all accused persons are concerned, there are no specific details as to who caused injury to the deceased and by what weapon. In the absence of specific attributes to particular accused persons and in the absence of evidence about the motive and in the background of the fact that the deceased was creating nuisance in the neighbourhood or Mohalla, we do not find that there was any intention to commit murder as such. We, however, find that the Accused No. 1 - Niyaz Ali only can be held guilty of the culpable homicide not amounting to murder, that too within the meaning of Section 304 Part-II, Indian Penal Code, as there was no intention. 14. In so far as Accused No. 2 Dadya alias Pravin is concerned, we find that except the evidence that he had dealt a blow of knife on the cheek of PW 4 Asha, there is no specific evidence that he had assaulted the deceased and, therefore, we find him guilty of the offence under Section 324, Indian Penal Code for assaulting P W 4 Asha. 15. In so far as Accused No. 3 Sheik Israil is concerned, again he will have to be held guilty for offence under Section 324, Indian Penal Code. 16. As far as women Accused Nos. 4 and 5 are concerned, we find that there is absolutely no evidence that they have committed any offence. 17. 15. In so far as Accused No. 3 Sheik Israil is concerned, again he will have to be held guilty for offence under Section 324, Indian Penal Code. 16. As far as women Accused Nos. 4 and 5 are concerned, we find that there is absolutely no evidence that they have committed any offence. 17. Even for holding a person guilty of offence of house trespass, it is requisite to have mens rea, without which, no criminal house trespass can be inferred. In the instant case, what we find is that these women had simply followed the other accused persons with no intention appearing on record and that, therefore, they cannot be held guilty of the offence under Section 451, Indian Penal Code. 18. To sum up, what we find is that the prosecution has failed to prove the offence of murder against all the accused persons, but has partly proved the offence as discussed above. To sum up, in the light of the discussion made by us above in relation to each of the accused--appellants, sentences will have to be imposed accordingly. That being so, we make the following order in all these appeals:- ORDER [a] Criminal Appeal Nos. 33, 32, 256 all of 2013 and Criminal Appeal No. 455 of 2012 are partly allowed. [b] The Judgment and Order dated 24th September, 2012 passed by Ninth Additional Sessions Judge, Nagpur, in Sessions Trial No. 59 of 2004 convicting and sentencing [1] Accused No. 1 Niyaz Ali Hussain Ali, [2] Accused No. 2 - Dadya @ Pravin Papaji Motghare, [3] Accused No. 3 Sheikh Israil Sk. Sattar, [4] Accused No. 4 Kaniya Begum Niyaz Ali and [5] Accused No. 5 Shamim Sultana Sheikh Israil for offences under Sections 302 read with Section 149, 147, 148, 324read with Section 149 and 451 read with Section 149, Indian Penal Code, to undergo Rigorous Imprisonment for Life is set aside. [c] The impugned Judgment and Order convicting Accused Nos. 1 to 5 of offence under Section 324 read with Section 149, Indian Penal Code is set aside. [d] The Accused No. 1 Niyaz Ali Hussain Ali is convicted of the offence punishable under Section 304 Part-II, Indian Penal Code, and is sentenced to Rigorous Imprisonment for the period he has already undergone the sentence. 1 to 5 of offence under Section 324 read with Section 149, Indian Penal Code is set aside. [d] The Accused No. 1 Niyaz Ali Hussain Ali is convicted of the offence punishable under Section 304 Part-II, Indian Penal Code, and is sentenced to Rigorous Imprisonment for the period he has already undergone the sentence. [e] Accused No. 2 Dadya @ Pravin Motghare is convicted of the offence under Section 324, Indian Penal Code, and is sentenced to undergo the sentence already undergone. [f] Accused No. 3 Sheikh Israil Sk. Sattar is convicted of offence under Section 324, Indian Penal Code, and is sentenced to undergo the sentence already undergone. [g] Accused Nos. 4 and 5 are held not guilty of the offences for which they were charged, and are acquitted of the charges levelled against them. [h] Accused Nos. 1 to 3 be released forthwith if not required in any other crime. [i] Accused Nos. 3 and 4 being on bail, their bail bonds stand cancelled. [j] Fees payable to learned Adv. Mr. A.M. Kukde [appointed] in Criminal Appeal No. 256 of 2013 are quantified at Rs. 5,000-00 [rupees five thousand only].