JUDGMENT 1. - In the year 2005, a day before Diwali, which is celebrated as Chhoti Diwali, as per prosecution in House No. 193, Ramnagar Extension, Sodala (a locality in the city of Jaipur), occurrence had taken place leading to murder of Ajay Saini. Injuries were also caused to Meera Devi (P.W.15) and Chunnilal (P.W.16) parents of deceased Ajay Saini. Chunnilal (P.W.16) had suffered very serious injuries falling within the ambit of Section 307 IPC. 2. For committing murder of Ajay Saini, Satya Kishore @ Gudda, Manish Saxena, Vijay Kumar and Puja Saxena were charged by the trial court. The accused, Satya Kishore @ Gudda was substantively charged for the offence under Section 302 IPC, whereas other accused were charged with the aid of Section 149 IPC. The accused were also charged for the offence under Section 323/149 IPC. The accused Satya Kishore @ Gudda was also charged for the offence under Section 4/25 Arms Act. 3. During the course of trial, two injured witnesses, Meera Devi (P.W.15), and Chunnilal (P.W.16), mother and father of the deceased Ajay Saini, had turned hostile and had not supported the prosecution case. Two other eyewitnesses, namely Kailash Chand Saini (P.W.2) landlord of the accused Manish Saxena, his wife Om Devi (P.W.9) also turned hostile and had not supported the prosecution case. 4. The prosecution case rests upon the testimony of Laxmi Saini (P.W.8), wife of the deceased Ajay Saini. The trial Judge vide its impugned judgment dated 14.8.2007, acquitted Puja Saxena, daughter of Vijay Kumar. 5. As per prosecution case, Satya Kishore @ Gudda caused injuries with knife to the deceased Ajay Saini and Chunni Lal (P.W.16). Two other co-accused, Vijay Kumar and Manish Saxena are said to have caught hold the deceased and injured to facilitate causing of injuries by the co-accused Satya Kishore @ Gudda. The trial Judge vide impugned judgment dated 14.8.2007, substantively convicted Satya Kishore @ Gudda for the offences punishable under Sections 302, 307 and 323 IPC. Manish Saxena and Vijay Kumar were convicted for the offences punishable under Sections 302/34, 307/34 and 323 IPC.Having convicted the appellants for the aforesaid offences, vide a separate order of even date, the appellants were sentenced as under:- U/s 302 and 302/34 IPC- to undergo life imprisonment and to pay a fine of Rs. Manish Saxena and Vijay Kumar were convicted for the offences punishable under Sections 302/34, 307/34 and 323 IPC.Having convicted the appellants for the aforesaid offences, vide a separate order of even date, the appellants were sentenced as under:- U/s 302 and 302/34 IPC- to undergo life imprisonment and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo one month S.I. U/s 307 and 307/34 IPC- to undergo seven year R.I. and to pay a fine of Rs. 5,00/-, in default of payment of fine to further undergo 15 days S.I. U/s 323 IPC - to undergo one month S.I. 6. Aggrieved against their conviction and sentence, Satya Kishore @ Gudda has preferred D.B. Criminal Appeal No. 1621/2007, whereas Manish Saxena and Vijay Kumar have instituted D.B. Criminal Appeal No. 1590/2007. We shall decide both these appeal by this common judgment. 7. Ratan Prakash (P.W.20), Sub-Inspector, at relevant time was In-charge of Police Station Mahesh Nagar. In the night of 31.10.2005, at 11:50 PM, vide Rojnamcha (Exhibit-P/45A) along with police party, he had left the police station for patrol duty. While doing patrolling, at Swej Farm he received an information that at Ramnagar Extension, a fight had taken place. He reached at Ramnagar Extension and found that two persons were seriously injured. He immediately made arrangements for transporting the injured persons to SMS Hospital. He found the names of injured to be Ajay Saini and his father Chunnilal. The opposite party was also present at the spot. He also took opposite party in his jeep to the hospital. Vijay Saxena, Satya Kishore, Kumari Sunaina, Vijay Saxena etc were also medico-legally examined. For examination of the injured persons belonging to opposite party, he presented an application (Exhibit-P/46 - Exhibit-P/47). 8. Ratan Prakash (P.W.20) after medico-legal examination of the opposite party, inquired and came to know that Chunnilal has been admitted at Ward 2-D and Ajay Saini has been admitted in CT Ward at SMS Hospital, Jaipur. He also presented an application (Exhibit-P/48) for their medico-legal examination. Meera Devi (P.W.15), wife of Chunnilal and mother of the deceased Ajay Saini was also found injured and for her medico-legal examination, an application (Exhibit-P/49) was presented. Injured Chunnilal and Ajay Saini were found to be unfit to give their statement. He also presented an application (Exhibit-P/48) for their medico-legal examination. Meera Devi (P.W.15), wife of Chunnilal and mother of the deceased Ajay Saini was also found injured and for her medico-legal examination, an application (Exhibit-P/49) was presented. Injured Chunnilal and Ajay Saini were found to be unfit to give their statement. However, Meera Devi (P.W.15) was found fit to give statement and Ratan Prakash (P.W.20), Sub-Inspector recorded her statement (Exhibit-P/34), on the basis of which a formal FIR (Exhibit-P/42) was registered. The statement (Exhibit-P/34) of Meera Devi (P.W.15) when translated into English, reads as under:- "Smt. Meera Devi wife of Chunnilal, caste Mali, aged 40 years, resident of F-193, Ramnagar Extension, Police Station Mahesh Nagar, stated that I am residing at F-193, Ramnagar Extension along with my family. On 1.11.2005, my husband and son Ajay Saini were present in the house. It was 1:00 AM, from the house of Kailash Mali, loud noise of tape/deck was coming. My husband and son Ajay both went outside to tell them to stop tape/deck. The house of Kaliash Ji is opposite to our house. When my husband and son told them to lower the volume, then the tenants of Kailash Ji started abusing and beating my husband and son Ajay. Both came running to the house. The said persons were Vijay, his two daughters son-in-law, out of which one was unmarried and one boy Satya Kishore. Then entered into our house. One son-in-law, who was wearing black clothes caused knife injuries in abdomen of my husband. He also gave injuries with knife in the abdomen of my son Ajay. When I stepped forward to save them, injury was caused in my head also. After causing injuries, accused left the spot. Whether the neighbours had witnessed the occurrence, I am not aware. Then I, my husband and son Ajay in vehicle of Ramesh were brought to the SMS Hospital, where my husband was admitted in 2DE ward and my son was admitted in CT ward. The condition of both is precarious. The accused attacked us with common intention to murder us. Sd/- Meera Devi 1.11.2005" 9. It has come in the evidence that Vijay Kumar had three daughters. His eldest daughter, Neelam Saxena was staying along with her husband, Manish Saxena at Jaipur. Her father, Vijay Kumar had come with other daughters from Ajmer. 10. The condition of both is precarious. The accused attacked us with common intention to murder us. Sd/- Meera Devi 1.11.2005" 9. It has come in the evidence that Vijay Kumar had three daughters. His eldest daughter, Neelam Saxena was staying along with her husband, Manish Saxena at Jaipur. Her father, Vijay Kumar had come with other daughters from Ajmer. 10. The prosecuting agency submitted the charge-sheet against Vijay Kumar, his daughter Puja Saxena, his son-in-law Manish Saxena and Satya Kishore @ Gudda. The trial court had framed charges against the appellants. They denied the same and claimed trial. 11. The prosecution in all examined 21 witnesses and proved on record about 65 documents, which have been exhibited from Exhibit-P/1 to Exhibit-P/62 and some exhibits have been given the same number by assigning 'A' also. The statement of accused were recorded under Section 313 Cr.P.C. They have not examined any witness in defence but has relied upon the statement of Laxmi Saini (P.W.8) as Exhibit-D/1 and the call details of mobile phone of Neelam Saxena, wife of Manish Saxena to prove that Neelam Saxena had phoned Number 100 for calling the police. The call details of telephone of Neelam Saxena have been proved on record as Exhibit-D/2 and Exhibit-D/3.First, we shall notice the medical evidence. 12. Dr. Vinay Kumar Atray (P.W.21) on 1.11.2005 at 3:50 AM, as per injury report (Exhibit-P/35) had examined Meera Devi (P.W.15) wife of Chunnilal and had found following injury on her person:- "Lacerated wound of size 3.5 x 1/2 cm, scalp tissue deep, present over left side fronto-parietal region of scalp with irregular margins and fresh clotted blood." 13. On the said date, at 2:15 AM, this witness had examined Vijay Saxena and as per injury report (Exhibit-P/53) had found following injuries on his person:- "(i) Abrasion, 4 x 1/2 cm, on left shoulder joint, red in colour. (ii) Abrasion, 2 x 1cm, on right knee cap, red in colour. (iii) Lacerated wound, 2.5 x 1/2 cm, scalp tissue deep over right side of fronto-parietal region with fresh clotted blood. (iv) Abrasion, 1/2 x 1/2 cm, on right mastoid part with red in colour." After X-ray examination, all the injuries were found simple in nature. 14. On the said date at 2:45 AM, Dr. (iii) Lacerated wound, 2.5 x 1/2 cm, scalp tissue deep over right side of fronto-parietal region with fresh clotted blood. (iv) Abrasion, 1/2 x 1/2 cm, on right mastoid part with red in colour." After X-ray examination, all the injuries were found simple in nature. 14. On the said date at 2:45 AM, Dr. Vinay Kumar Atray (P.W.21) had also examined Satya Kishore @ Gudda and as per injury report (Exhibit-P/55) had found the following injuries:- "(i) C/o pain, right calf muscle O/E tenderness present. (ii) Abrasion, 1/2 x cm, on posterior aspect of left thumb with fresh clotted blood. (iii) Abraded bruise of size 8 x 1/2 cm, on back of chest left side, scapular region with fresh clotted blood." These injuries after X-ray were declared simple. 15. Dr. Vinay Kumar Atray (P.W.21) on the same night at 2:30 AM, had also examined Puja Saxena and as per injury report (Exhibit-P/57) had found the following injuries on her person:- "(i) Abrasion of size 6 x 3cm on posterior aspect left forearm with fresh clotted blood. (ii) Swelling of size 4 x 2cm, on Rt. ankle joint O/E tenderness present. (iii) C/o pain left shoulder joint, O/E tenderness present." All injuries were declared simple after X-ray examination. 16. On 4.11.2005, at 12.30 AM, Dr. Vinay Kumar Atray (P.W.21) had examined Manish Saxena and as per injury report (Exhibit-P/61) had found the following injuries on his person:- "(i) Abrasion of size 2.5 x cm, present on right forearm with hard scab, reddish in colour. (ii) Linear abrasion, 1cm in length onleft palm with hard scab." 17. Dr. Sumant Dutta (P.W.18) on 1.11.2005 had conducted autopsy on the dead body of Ajay Saini. As per statement made by the doctor, Ajay was admitted in hospital on the intervening night on 31.10.2005 and 1.11.2005 and he died in the morning of 1.11.2005 at 5:30 AM. As per Post-Mortem Report (Exhibit-P/38), this doctor had found following injuries on the dead body of Ajay Saini:- "(i) Scratch abrasion, 1/2 cm long vertical, left side face, reddish in colour. (ii) Scratch abrasion, cm long x ⅙cm right above lip, reddish in colour. (iii) Scratch abrasion, 1/4cm long, 1mm wide, right eye cavity, reddish in colour. (iv) Scratch abrasion, 1.5cm long, transverse, right side neck, reddish in colour. (v) Abrasion, cm x 1mm, right below neck, reddish in colour. (ii) Scratch abrasion, cm long x ⅙cm right above lip, reddish in colour. (iii) Scratch abrasion, 1/4cm long, 1mm wide, right eye cavity, reddish in colour. (iv) Scratch abrasion, 1.5cm long, transverse, right side neck, reddish in colour. (v) Abrasion, cm x 1mm, right below neck, reddish in colour. (vi) Abrasion, x , right 2nd finger Ist I.P. Joint, dorsally, reddish in colour. (vii) Abrasion, x , left thumb Ist I.P. Joint, palmer surface, reddish in colour. (viii) Abrasion, x ⅙cm, left metacarpo phalangeal joint, palmer surface, reddish in colour. (ix) Abrasion, x , right wrist palmer aspect anteriorly, reddish colour. (x) Stab incised wound, 2cm x 0.25cm in center, elliptical shape with clean cut regular well defined edge with reddish blood clot staining on left scapula spine on back of chest, transversely oblique present. It is 15cm below left acromion process and medial to medial border near upper end of scapula joint above spine. (xi) Stab incised wound, 2cm x 0.5cm, pleural cavity deep on right antro-lateral chest above axillary line transversely placed done surgically as per BMT for intercostal drain in 5th intercostal space sic where as per BMT 3 litre blood drained out. (xii) Stitch wound, 2cm long right side back of chest transversely placed with clean margin with two stitches with reddish in colour. It is 26cm below right acromion process and 9cm lateral to mid vertebral line on dissection of chest cavity it has pierced underlying sub cut membrane, intercostal parietal pleura found cut where a wound 1.75 cm x 0.5cm x through and through in 6th intercostal space. On further examination there is about 11/2 litre of blood and 400 gm blood clot present in right pleural cavity. On examination right lung lower lobe has cut visceral layer of lung. A wound 1.5 cm x 0.5cm x 2.5cm found elliptical shape with sic red sic with cut found in pulmonary vessel through and through in lung bed. Track found is anteriorly and medially." 18. This witness also proved on record bed-head ticket of Ajay Saini as Exhibit-P/39. As per Post-Mortem Report (Exhibit-P/38), the cause of death of Ajay Saini was hemorrhagic shock due to ante mortem injuries caused to chest and lung. In the opinion of the doctor, the said injuries in the post-mortem report, were sufficient to cause death in the ordinary course of nature. As per Post-Mortem Report (Exhibit-P/38), the cause of death of Ajay Saini was hemorrhagic shock due to ante mortem injuries caused to chest and lung. In the opinion of the doctor, the said injuries in the post-mortem report, were sufficient to cause death in the ordinary course of nature. The doctor further opined that the injuries No. 1 to 9 were caused by blunt weapon, injury No.11 was caused by treating surgeon and injuries No.10 and 12 were caused by sharp edged weapon. 19. Dr. Kedar Prasad Badgujar (P.W.13) had examined Chunnilal (P.W.16), who was admitted in Ward No. 2DE. This witness proved the injury report (Exhibit-P/28) of Chunnilal, wherein following injuries have been noticed:- "(i) Lacerated wound, 3cm x 1/2 cm, scalp tissue deep with red clotted blood (dark). (ii) Post surgical bandage present over the anterior abdominal wall, present left side abdomen (Anter) wall." 20. This witness also proved on record the final opinion (Exhibit-P/29) regarding injuries of Chunnilal (P.W.16), which reads as under:- "After going through BMT and operative notes and blood supply report of Shree Chunnilal. As per the operative notes, there was 200cc of haemorrgic fluid present in peritonial cavity and large haematoma present in the left side retro peritonium extending up to right side retro peritonium and six units of blood was given to the patient. So the injury No.2 is grievous and dangerous to life. My earlier opinion regarding injury No.2 was based upon radiological finding only. The injury no.2 is grievous -dangerous to life." 21. The first informant, Meera Devi (P.W.15), mother of the deceased Ajay Saini, in the court stated that on the night of Chhoti Diwali, at 12:30 AM, she along with her husband Chunnilal were sleeping. They heard noise that 'hold, kill and do not allow to escape' coming from the outside. The exact words stated in the statement reads as " idM+ks] ekjks vkSj tkus ls " . She woke up. Her husband came outside and saw that 5-7 persons had caught hold of his son Ajay Saini. They were giving threats to him. Thereafter, they started pelting stones, due to which, she, her husband and her son suffered injuries. The said witness stated that Ajay Saini had not received injuries due to pelting of stones. Somebody, later caused injuries with knife to Chunnilal, her husband. This witness was declared hostile by the prosecution. They were giving threats to him. Thereafter, they started pelting stones, due to which, she, her husband and her son suffered injuries. The said witness stated that Ajay Saini had not received injuries due to pelting of stones. Somebody, later caused injuries with knife to Chunnilal, her husband. This witness was declared hostile by the prosecution. In cross-examination, this witness stated that at the time of her deposition in the court, her daughter-in-law Laxmi Saini (P.W.8) was not staying with her and she had lodged a case against them also. 22. Chunnilal (P.W.16), who had suffered serious injuries in the occurrence and is father of the deceased Ajay Saini, also reiterated as to what was stated by her wife Meera Devi (P.W.15). He also stated that he heard noises coming from outside the house, where a quarrel was taking place. About 5-6 persons were quarrelling with his son. The said persons had pelted stones and caused injuries. This witness stated that as to who caused injuries to whom, he was not aware. This witness was also declared hostile by the prosecution. This witness also admitted that his daughter-in-law, Laxmi Saini (P.W.8) is not residing with them and she had filed a case against them under the provisions of dowry act. 23. Kailash Chand Saini (P.W.2) another eyewitness, who is landlord of the accused, stated that in his house, on the ground floor, he had rented out two rooms and one kitchen to Neelam Saxena. She is doing service in the Airtel and her husband Manish Saxena is an employee in the HDFC Bank. Vijay Kumar is father-in-law of Manish Saxena, and is resident of Ajmer. This witness further stated that besides Neelam Saxena, other two daughters of Vijay Kumar are residing with him at Ajmer. In the intervening night of 31.10.2005 and 1.11.2005, he had heard noise. He along with his wife Om Devi (P.W.9) came downstairs and found that the police had arrived at the spot. They had taken Chunnilal (P.W.16), Meera Devi (P.W.15) and Ajay Saini to the hospital. Police had taken Chunni Lal, Meera Devi and Ajay. They had also taken Vijay Kumar. Mob had gathered. Police had taken 4-5 persons. This witness stated that in the street a fight had taken place. This witness was also declared hostile by the prosecution. They had taken Chunnilal (P.W.16), Meera Devi (P.W.15) and Ajay Saini to the hospital. Police had taken Chunni Lal, Meera Devi and Ajay. They had also taken Vijay Kumar. Mob had gathered. Police had taken 4-5 persons. This witness stated that in the street a fight had taken place. This witness was also declared hostile by the prosecution. Another eyewitness, Om Devi (P.W.9), wife of Kailash Chand Saini (P.W.2) was also declared hostile as she has also not supported the prosecution case. 24. Laxmi Saini (P.W.8), wife of the deceased Ajay Saini, in the court stated that on 31.10.2005, a day before Diwali in the night, at 1:00 AM, she along with her husband Ajay Saini, daughter and parents-in-law were sleeping in the house. They were residing in F-193, Ramnagar Extension, Sodala. In the opposite house No. F-234, which belongs to Kailash Ji, tenant Manish Saxena was residing. In the house of Manish Saxena, Vijay Saxena and Satya Kishore @ Gudda had come to visit Manish Saxena. Two girls were also present. In the night, in the street they were plying the deck/tape of the car on a very loud volume. They wee raising noise and had taken liquor. Her husband and father-in-law Chunnilal (P.W.16) had gone to request them to lower the volume of the deck/tape. Since the accused persons were under the influence of liquor, they started giving them beating. They were also giving abuses. Her husband and father-in-law came running to the house. Then five persons namely, Vijay Kumar, Manish Saxena, Satya Kishore @ Gudda and two daughters of Vijay Kumar, after due planning came to their house. Manish caught hold of her husband, Ajay Saini and Vijay Kumar caught hold of her father-in-law, Chunnilal (P.W.16). Satya Kishore @ Gudda gave knife injuries to Ajay Saini and Chunnilal. People who had gathered around had seen the occurrence. After causing injuries with knife, the accused ran away from the spot. 25. This witness was extensively cross-examined. She stated that in the night, she had gone to the hospital but since her daughter was alone in house, she came back. At the time of occurrence, her daughter was eight months old and therefore, she could not be left alone. At hospital, policemen had arrived. She met the police and informed that she is wife of Ajay Saini. The occurrence had taken place at 1:00 AM. At the time of occurrence, her daughter was eight months old and therefore, she could not be left alone. At hospital, policemen had arrived. She met the police and informed that she is wife of Ajay Saini. The occurrence had taken place at 1:00 AM. She reached at the hospital after one and a half hour. This witness stated that she is not aware who else had accompanied her husband, mother-in-law and father-in-law. On the next day, police arrived at their house. She stated that as to what action was taken by the police, she cannot tell because all the time she was weeping. Till Tiya Baithak, the police was coming. The police had taken her statement. She admitted that in her statement (Exhibit-D/1) it is not recorded that Vijay Kumar and Satya Kishore @ Gudda had come to the house of Manish Saxena. She admitted that their house bearing No. 193 is having two stories. On the ground floor, her mother-in-law and father-in-law were staying. She was staying with her daughter on the first floor. She stated that when her husband and father-in-law had gone to request accused to lower the volume of deck/tape, she was awake. She further stated that perhaps Satya Kishore @ Gudda also resides in the same colony on rent. As to in which house, he is residing, this witness stated that she was not aware. She further stated that in her statement (Exhibit-D/1), it is not recorded that accused had taken liquor. This witness stated that her husband had fallen on the ground, and at that time her daughter was in her lap, therefore, she could not pick up her husband. This witness stated to be correct that in the hospital, she narrated the occurrence to the police. This witness further stated that she knew Manish Saxena etc by face. 26. Vijay Saini is the brother of the deceased Ajay Saini. He appeared in the court as P.W.1. This witness stated that the police in the morning on 1.11.2005 at 8:30 AM arrived at the house and made site plan (Exhibit-P/1). This witness had attested the site plan. Police had also taken blood stained soil vide Exhibit-P/2. This witness proved various memos which were prepared at spot by the police. 27. He appeared in the court as P.W.1. This witness stated that the police in the morning on 1.11.2005 at 8:30 AM arrived at the house and made site plan (Exhibit-P/1). This witness had attested the site plan. Police had also taken blood stained soil vide Exhibit-P/2. This witness proved various memos which were prepared at spot by the police. 27. We need not notice the evidence of remaining witnesses regarding recovery of knife, arrest of the accused and testimony of the officials witnesses, who had participated in the investigation. 28. The entire prosecution case rests on the testimony of Laxmi Saini (P.W.8), widow of the deceased Ajay Saini. As stated earlier, parents, who received injuries in the occurrence have turned hostile and have not supported the prosecution case. Meera Devi (P.W.15) and Chunnilal (P.W.16), parents of the deceased had admitted that after the murder of their son, Ajay Saini, they were embroiled in the litigation with Laxmi Saini (P.W.8) pertaining to demand of dowry etc. 29. We have heard Mr. Kamlakar Sharma, Senior Counsel assisted by Anshuman Saxena appearing for the appellant Vijay Kumar and Mr. A.K. Bhandari, Senior Counsel assisted by Mr. Prashant Sahni appearing for the appellants Satya Kishore @ Gudda. We have also heard Mr. N.S. Dhakad, the learned Public Prosecutor. 30. The learned counsel for the appellants have assailed the testimony of Laxmi Saini (P.W.8) by urging that she is not an eyewitness of the occurrence. Her name has not been noticed in the FIR as an eyewitness. Her statement (Exhibit-D/1) was recorded by the police on 4.11.2005 after four days of the occurrence. The learned counsel for the appellants have also relied upon the testimony of Vijay Saini (P.W.1), brother of the deceased Ajay Saini, who stated that Laxmi Saini (P.W.8) was on the first floor. She came to the ground floor only when the injured were being transported to the hospital. It is contended that Laxmi Saini (P.W.8) admitted in the cross-examination that Satya Kishore @ Gudda was residing in the same colony and this fact had came to her knowledge after the occurrence. Thus, it is contended that Satya Kishore @ Gudda was not known to Laxmi Saini (P.W.8) and the prosecution has failed to prove identity of accused Satya Kishore @ Gudda. Thus, it is contended that Satya Kishore @ Gudda was not known to Laxmi Saini (P.W.8) and the prosecution has failed to prove identity of accused Satya Kishore @ Gudda. The learned counsel for the appellants further contended that Laxmi Saini (P.W.8) in her statement recorded under Section 161 Cr.P.C. had stated that she had intervened to save her husband but in cross-examination she had stated that she had seen the occurrence from the first floor. It is further contended that in the site plan (Exhibit-P/1), the place or point where from Laxmi Saini (P.W.8) had seen the occurrence has not been specified. It has been further contended that Laxmi Saini (P.W.8) had admitted that before the date of incident, there was no previous dispute pending between the parties and thus, the statement made by the witnesses that the accused came after due planning is palpably false. Further it has been contended that the witnesses have admitted that other people were also present at the spot, but no independent witness or neighbour or anybody who had gathered at the spot has been examined, as a witness. 31. Mr. N.S. Dhakad, the learned Public Prosecutor has submitted that Satya Kishore @ Gudda either being engaged with daughter of Vijay Kumar or being friend of Manish Saxena was present at the place of occurrence. It is further contended that the brother and parents of the deceased have arrived at the compromise with the accused and have turned hostile. The learned Public Prosecutor has submitted that the presence of Laxmi Saini (P.W.8) is natural. She is an eyewitness of the occurrence and therefore, her testimony cannot be discarded. 32. We have given our thoughtful consideration to the rival submissions advanced by the learned counsel for the parties. 33. Chunnilal (P.W.16) in the court stated that his son Vijay Saini (P.W.1) is having a shop at Sodala. Meera Devi (P.W.15) stated that they had made telephonic call to Vijay. In the court, this witness stated that my younger son Vijay Saini resides at Sodala. He was informed on the phone that a fight had taken place. We shall reproduce the exact words of the witness as under:- " NksVk okyk cPpk fot; tks lksMkyk esa jgrk gS mls Qksu fd;k fd >xM+k gks x;kA " 34. In the court, this witness stated that my younger son Vijay Saini resides at Sodala. He was informed on the phone that a fight had taken place. We shall reproduce the exact words of the witness as under:- " NksVk okyk cPpk fot; tks lksMkyk esa jgrk gS mls Qksu fd;k fd >xM+k gks x;kA " 34. From the statement made by Meera Devi (P.W.15), it is apparent that Vijay Saini (P.W.1) is not an eyewitness of the occurrence. He had arrived at the scene of occurrence after he had received a telephonic call. Therefore, the statement made by Vijay Saini (P.W.1) that Laxmi Devi (P.W.15) arrived at the scene of occurrence after her husband, Ajay Saini was taken to the hospital is of no significance. 35. In the present case, Ratan Prakash (P.W.20) had immediately taken Vijay Kumar, Satya Kishore @ Gudda and Puja Saxena from the place of occurrence to the hospital in the night of occurrence i.e. intervening night of 31.10.2005 and 1.11.2005. Vijay Kumar was examined at 2:15 AM, Satya Kishore @ Gudda was examined at 2:45 AM and Puja Saxena was examined at 2:30 AM. They had suffered injuries in the occurrence. Though, the said injuries are simple and superficial and not required to be explained by the prosecution, however, the very fact that on the same night, S.I., Ratan Prakash (P.W.20) in his police vehicle took these accused to the hospital and they were medico-legally examined. Thus, presence of accused at the scene of occurrence is stamped, as the one who had participated in the occurrence. S.I., Ratan Prakash (P.W.20) in the statement had stated that he also took the persons belonging to the opposite side. He further stated that the injured Meera Devi (P.W.15) and Chunnilal (P.W.16) and deceased Ajay Saini were already sent in a vehicle to the hospital. Therefore, no dispute can be raised regarding the identity of the accused as they were present at the spot. The defence also be producing Exhibit-D/2 and Exhibit-D/3 the call details of mobile phone of Neelam Saxena, wife of Manish Saxena and daughter of Vijay Kumar Saxena have proved on record that she had made telephonic call at No.100 on 1.11.2005, firstly at 1:03:07 AM and then 1:03:53 AM. Therefore, it stands proved on record that a quarrel had taken place between the residents of house No.193 and tenants of House No.234. Therefore, it stands proved on record that a quarrel had taken place between the residents of house No.193 and tenants of House No.234. Identity of the accused, due to their apprehension at spot cannot be disputed.36. Laxmi Saini (P.W.8) is the wife of the deceased Ajay Saini. Right from the beginning in the FIR the case of prosecution is that the tenants of House No. 234 were playing tape/deck in the night at 1:00 AM at a very high volume and therefore, Chunnilal (P.W.16) and Ajay Saini came downstairs to restrain the accused and request them not to play music at a high volume. Thus, it is apparent that the residents of House No.193, due to high pitch of the music had woken up and were not getting proper sleep. 37. Site plan (Exhibit-P/1) reveals that the House No.234 and House No.193 are opposite to each other and are divided by a road. It has also come in evidence of Meera Devi (P.W.15) and Chunnilal (P.W.16) that abuses were being given and quarrel had ensued. The quarrel which had taken place will attract the lady of the house and she cannot remain as a mute spectator in the house. Thus, we believe Laxmi Saini (P.W.8) that she came downstairs when the quarrel had taken place. Kailash Chand Saini (P.W.2), the landlord of the House No.234 in his deposition has also stated that " chp xyh esa >xM+k gks jgk FkkA ". Therefore, we find that the presence of Laxmi Saini (P.W.8) at the place of occurrence is natural, probable and indeed she is eyewitness of the occurrence. However, we find that her statement that after the quarrel, Chunnilal (P.W.16) and the deceased, Ajay Saini came inside the house and the accused followed them in the house seem to be an exaggeration. We also find that the statement made by her that Manish Saxena and Vijay Kumar caught hold of Ajay and Chunnilal, respectively is also an embellishment introduced as an after-thought. The occurrence had taken place in the street and immediately then and there, Satya Kishore @ Gudda had caused knife injuries to Ajay Saini and Chunnilal (P.W.16). Chunnilal (P.W.16) in the court had not stated that anybody caught hold of him. The occurrence had taken place in the street and immediately then and there, Satya Kishore @ Gudda had caused knife injuries to Ajay Saini and Chunnilal (P.W.16). Chunnilal (P.W.16) in the court had not stated that anybody caught hold of him. Therefore, we shall extend benefit of doubt to Manish Saxena and Vijay Kumar, holding that the story that Manish Saxena caught hold of Ajay Saini and Vijay Kumar caught hold of Chunnilal (P.W.16) is a blemish.38. Having extended the benefit of doubt to Manish Saxena and Vijay Kumar, we are of the firm opinion that Satya Kishore @ Gudda has caused injuries to Ajay Saini and his father Chunnilal and to this extent, the testimony of Laxmi Saini (P.W.8), the solitary witness is reliable and she has been duly corroborated by medical evidence and recovery of knife from the accused Satya Kishore @ Gudda.39. We shall now, deal with another argument raised by Mr A.K. Bhandari, the learned Senior Counsel that it was a pre-Diwali night and it has come in the evidence that party was going on and tape/deck was being played and as per witnesses, accused had taken liquor also. Thus, it is contended that even if the prosecution case is assumed to be true then also, when Ajay and Chunnilal (P.W.16) came and told the accused not to play music at a high volume, occurrence had taken place without any pre-mediation. It is to be assumed that hot words were exchanged and at the spur of moment, Satya Kishore @ Gudda had caused injuries. Thus, offence will not fall under Section 302 IPC but under Section 304-I IPC. Thus, it has been prayed that we should convert the offence and modify the sentence. 40. We have examined this argument and find that there are two stab injuries on the chest of the deceased, Ajay Saini. Injury No.11 is a surgical wound and injuries No.10 and 12 are two separate stab injuries caused on the person of Ajay Saini. As per the Post Mortem Report (Exhibit-P/38), injury No.10 is on the left side of chest and injury no.12 is on the right side of chest. Considering that the appellant had caused two stab injuries, we are not inclined to convert the offence, as appellant Satya Kishore @ Gudda had caused repeated blows.41. As per the Post Mortem Report (Exhibit-P/38), injury No.10 is on the left side of chest and injury no.12 is on the right side of chest. Considering that the appellant had caused two stab injuries, we are not inclined to convert the offence, as appellant Satya Kishore @ Gudda had caused repeated blows.41. Consequently, as a result of above discussion, we find no merit in the appeal [D.B. Criminal Appeal No.1621/2007] preferred by Satya Kishore @ Gudda and we affirm his conviction and sentence awarded by the trial court. However, as a matter of abundant caution, we extend the benefit of doubt to the appellants, Manish Saxena and Vijay Kumar and we set aside their conviction and sentence awarded by the trial court. They are acquitted of all the charges and the appeal [D.B. Criminal Appeal No. 1590/2007] preferred by them is accepted.Appeal No. 1621/2007 dismissed and Appeal No. 1590/2007 allowed. *******