JUDGMENT Jain, J. -- 1. The appellants by preferring this appeal assailed the legality and validity of their conviction and sentence, which is as under : Appellants No. 1 to 4 and 7 : S.No. Conviction under section Sent awarded Fine amount In default of payment of fine 1 148 of the IPC 2 years RI -- -- 2 302/149 of the  IPC Life Imprisonment Rs.2,000/- 6 months RI 3 325/149 of the IPC (on two count) 3 years RI Rs.1,000/- 3 months RI 4 25 of the Arms Act 1 years RI Rs.5,00/- 1 month RI. Appellants No. 5 and 6 : S.No. Conviction under section Sent awarded Fine amount In default of payment of fine 1 148 of the IPC 2 years RI -- -- 2 302/149 of the  IPC Life Imprisonment Rs.2,000/- 6 months RI 3 325/149 of the IPC (on two count) 3 years RI Rs.1,000/- 3 months RI 2. Brief facts of the prosecution case are as under : Complainant Vijay (PW1) is the brother of deceased Gayaprasad and Sohan (PW2). On 7.12.2004, at about 8:00 a.m., the complainant Vijay (PW1) and his servant Mahesh were irrigating their field, known as Santer wala khet. That, at about 11:00 a.m. Gayaprasad and Sohanlal along with their nephews namely Sanjay, Ajay and Dhiraj came there and started spreading the pipe. At the same time appellant Anoop, Dilip, Surendra, Pawan, Munna, Ashok (all are real brothers) and their family friend Golu came there and raised an objection as to how Vijay is irrigating the field from the water of the canal, which resulted in a wordy altercation between the parties and injuries were inflicted by the appellants on the deceased and witnesses. Appellant Anoop inflected injury with knife on the left side of the chest of deceased Gayaprasad and then other appellants have also attacked him with lathis. When Sohanlal and Vijay tried to rescue their brother Gayaprasad, they were also inflicted injuries with knife and lathi by the appellants Munna, Ashok and Golu. During the incident Gayaprasad sustained serious injuries whereas Sohan and Vijay sustained grievous injuries. 3. Injured Gayaprasad and Sohanlal were immediately taken to hospital but on the way to the hospital Gayaprasad has been died, whereas injured Sohan was admitted in Suyash Hospital, Indore and the dead-body of Gayaprasad was taken to M.Y. Hospital, Indore. During the incident Gayaprasad sustained serious injuries whereas Sohan and Vijay sustained grievous injuries. 3. Injured Gayaprasad and Sohanlal were immediately taken to hospital but on the way to the hospital Gayaprasad has been died, whereas injured Sohan was admitted in Suyash Hospital, Indore and the dead-body of Gayaprasad was taken to M.Y. Hospital, Indore. Injured Vijay was sent for medical examination to Civil Hospital, Mhow. Vijay has lodged the report at Police Station Kishanganj, Mhow against the appellants. On this basis Crime No.442/2004 for the offence under sections 302, 147, 148, 149, 307 and 294 of the IPC has been registered. 4. On receiving the information from M.Y. Hospital, Indore about the death of Gayaprasad, Marg No.0/407/04 has been registered at Police Station Sanyiogitaganj, Indore. Head constable Mishrilal Choudhary prepared an inquest report and later send the dead body for postmortem examination. Dr. Bharat Prakash conducted autopsy on the dead body of Gayaprasad and opined that the death was due to shock and hemorrhage as a result of injuries to lungs and heart and gave a report (Ex.P-36) that the death of Gayaprasad was homicidal in nature. Sardar Singh (SHO) proceeded to the place of incident and has prepared a spot-map and seized blood stained soil, three pair of sleepers, two pair of shoes and three blood stained stones. Thereafter, he arrested all the appellants and at their instance recovered knives and lathis. All the articles and weapons were sent to FSL for examination. After completion of investigation final report was filed against the appellants under the above stated provisions. 5. Learned ASJ, framed the charges against all the appellants for the offence under sections 148, 302 or 302/149, 307 or 307/149, 325 or 325/149 of the IPC and also framed the charge against appellant No.1 to 4 and appellant No.7 for the offence under section 25(1B)(b) of the Arms Act. The appellants abjured their guilt. 6. The Prosecution examined as many as 17 witnesses and exhibited number of documents and articles; whereas defense examined only 1 witness. The appellants were examined under section 313 of CrPC about the incriminating circumstances but they denied all of them and pleaded false implication due to political rivalry. 7. The appellants abjured their guilt. 6. The Prosecution examined as many as 17 witnesses and exhibited number of documents and articles; whereas defense examined only 1 witness. The appellants were examined under section 313 of CrPC about the incriminating circumstances but they denied all of them and pleaded false implication due to political rivalry. 7. After hearing the parties, learned ASJ, acquitted all the appellants from the charges under sections 307 and 307/149 of the IPC; whereas convicted the appellants for the offence under sections 148, 302/149, 325/149 (on two counts) and also convicted the appellants No. 1 to 4 and 7 for the offence under section 25(1B)(b) of the Arms Act and sentenced as indicated above. 8. Assailing the conviction of the appellants, learned senior counsel for the appellants contended that the testimony of witnesses suffered from serious contradictions. The witnesses are close relatives of the deceased and are inimical terms with the appellants, therefore, they could not said to be reliable. The FIR has been ante timed so as to be in-consonance with the prosecution story otherwise it was not possible to mention in the FIR that Gayaprasad died on the way to hospital. The witnesses have changed the place of occurrence from Rasia Dhaba to Santer wala khet, which is about 3 km. away from Rasia Dhaba. In the inquest report only four injuries were found on the dead body; whereas in post-mortem report 7 injuries were found. This fact shows manipulation. It is also submitted that the Police statement of Sohanlal (PW2) was recorded after in-ordinate delay on the ground of ill health; whereas treatment papers have not supported this fact. These facts creates serious doubts on the prosecution case; whereas the defense version is probable that the appellants had been falsely implicated in the case on account of political rivalry. Besides this it is also not proved that appellants have formed unlawful assembly. Therefore, conviction with the aid of section 149 of IPC is not justified. This aspect was not properly considered by the trial Court. 9. On the other hand, learned Panel Lawyer for the respondent/State submits that there is no material contradictions in the testimony of witnesses Vijay (PW1), Sohan (PW2) and Dhiraj (PW5). Witnesses Vijay and Sohanlal are also injured in this incident and their brother had been brutally killed before them. This aspect was not properly considered by the trial Court. 9. On the other hand, learned Panel Lawyer for the respondent/State submits that there is no material contradictions in the testimony of witnesses Vijay (PW1), Sohan (PW2) and Dhiraj (PW5). Witnesses Vijay and Sohanlal are also injured in this incident and their brother had been brutally killed before them. The relationship is not a factor to affect the credibility of witnesses because a relative would not conceal a culprit and falsely implicate innocent persons. It is also contended that the appellants were armed with deadly weapons with which they inflicted injuries on the deceased and the complainant party. That after inflicting fatal injuries on the deceased Gayaprasad, he was immediately taken to hospital but on the way to the hospital he was succumbed to the injuries. There is no political rivalry between the parties. The trial Court after elaborate discussion, rightly negatived the defense putforth by the appellants. 10. After hearing learned counsel for the parties, we have perused the impugned judgment and carefully examined the evidence on record. 11. Dr. Bharat Prakash (PW9) conducted autopsy of deceased Gayaprasad and found following injuries : 1. Contusion abrasion 1.5x1 left to left eye brow. 2. Incised wound oblique 1x1/2x1/4cm over left mid clavicle. 3. Incised wound 2x1/2x1/2 cm Right mid arm thigh oblique. 4. Incised wound oblique R. Mid latent thigh 4x1 1/2x1 cm. 5. Incised would oblique 2x1x1 cm. Over Right post mid thigh. 6. Incised wound 1.5x1x1/2 cm over R post interior lower hip, vertical. 7. Stab wound 3x1.5x8 cm oblique one end narrow, other blunt over left interior chest just below the 6 th rib 12 cm left to mid sternal line goes into left vertical after cutting inferior lope of left lung lower part and pericardium left thoracic cavity contains about two liters of partly clotted blood. Would margin are clean cut. Direction is left to right, obliquely upward, slightly cut of posterior left scuba of left verticular wall cut through and through, wall-cut 1x0.3 cm through and through, one end narrow and other blunt. Inter verticular septum healthy. All the above mentioned injuries were caused by hard and sharp edged weapon and anti-mortem in nature. Dr. Bharat Prakash in his post-mortem report (Ex.P-36) opined that Gayaprasad was died due to shock and hemorrhage as a result of injuries to lungs and heart. Inter verticular septum healthy. All the above mentioned injuries were caused by hard and sharp edged weapon and anti-mortem in nature. Dr. Bharat Prakash in his post-mortem report (Ex.P-36) opined that Gayaprasad was died due to shock and hemorrhage as a result of injuries to lungs and heart. Thus, the death of Gayaprasad was homicidal in nature. 12. Dr. Anil Jain (PW-3) has examined Vijay and found following injuries : i. Swelling and tenderness on right knee and right shoulder. ii. Swelling and tenderness over oues nose bleeding. Dr. Anil Jain gave a report (Ex.P-5) and referred for X-ray examination. On 8.12.2004 Dr. Ashok Jain examined Vijay at Suyash Hospital and found a fracture root of nozzle bone, and gave a report (Ex.P-37). It is not suggested that Vijay has not sustained such injury or the injury is self inflicted. There is nothing on record to disbelieve medical evidence. Thus, it is proved that during the incident witness Vijay has sustained grievous injury as per report (Ex.P-5 and P-37). 13. Dr. Shrikant Rege (PW11) examined Sohanlal and found following injury : CLW; 2 cm. bone deep right on the part is subdoval bleed oral surface of tentorial fracture right patrons temporal bone grievous nature. On X-ray examination on 24.2.2004, following fractures were found : i. Undisplaced fracture lower end of radius and impacted fracture neck or 4th meta carpal is noted on right side. ii.Transverse fracture lower 3rd of ulna and fracture base of mid be phalanx of middle finger is noted on left side. It is not suggested that the injury sustained by Sohanlal is self inflicted. Thus, it is proved beyond doubt that during the incident Vijay (PW1) and Sohan (PW2) have sustained grievous injuries. In such situation at the time of incident their presence at the place of occurrence is proved. 14. Now we proceed to consider the defence pleas one by one. As per the defence the FIR is ante-time, because in the FIR it is mentioned that Gayaprasad died on his way to the hospital. As per FIR, incident has taken place at 11:15 a.m. and Vijay has lodged FIR at 12:45 p.m.. Distance of place of occurrence to the Police Station Kishanganj is about 3 km. Vijay deposed that after the incident he, injured Gayaprasad, Sohanlal and nephew Sanjay proceeded to hospital. As per FIR, incident has taken place at 11:15 a.m. and Vijay has lodged FIR at 12:45 p.m.. Distance of place of occurrence to the Police Station Kishanganj is about 3 km. Vijay deposed that after the incident he, injured Gayaprasad, Sohanlal and nephew Sanjay proceeded to hospital. On the way he and Sanjay get down from the Car at Police Station Kishanganj where he reached at 12:00 a.m. then he has lodged the report at 12:45 p.m.; whereas Sohanlal admitted in the Suyash Hospital, Indore at 12.02 p.m. (See P-41). By that time Gayaprasad died on way to Suyash Hospital, Indore. Thus, it is clear that Gayaprasad died before 12:00 a.m. Complainant Vijay has reached the Police Station at about 12:00 a.m. By that time Gayaprasad has been died and Vijay has lodged the FIR at 12:45 p.m. and in the FIR it is mentioned that Gayaprasad has died on his way to hospital. In such circumstances, there is nothing to doubt on FIR and it cannot be said that the FIR is ante-time. 15. Learned senior counsel for the appellants has given much stress on the plea that Head Constable Mishrilal Chouhan (PW13) deposed that the incident has taken place near Rasia Dhaba; whereas all the witnesses deposed that the incident has taken place at Santer wala khet. Thus, they have changed the place of incident. 16. Mishrilal Chouhan (PW13), Head Constable posted at Police Station Sanyogitaganj, Indore has only prepared inquest report and has not recorded statement of any of the witnesses. Patwari Kamal Patel (PW7) and IO Sardarsingh (PW15) have prepared spot maps (P-31 and P-2). In their cross-examination it is not suggested that the incident has taken place near Rasia Dhaba. Dr. Bharatprakash, who conducted post-mortem mentioned in the report that the cloths of deceased Gayaprasad were soaked in mud. This fact is again corroborates that the incident has taken place at Santer wala khet and not near Rasia Dhaba. Thus, there is no substance in the plea of defence that witnesses have changed the place of incidence. 17. We have considered the discrepancies about number of injuries in the inquest report and in the post-mortem report. In the inquest report (Ex.P-49) total five injuries were mentioned; whereas in the post-mortem report (Ex.P-36) autopsy surgeon found seven injuries. Head Constable Mishrilal Chouhan (PW13), has prepared inquest report. 17. We have considered the discrepancies about number of injuries in the inquest report and in the post-mortem report. In the inquest report (Ex.P-49) total five injuries were mentioned; whereas in the post-mortem report (Ex.P-36) autopsy surgeon found seven injuries. Head Constable Mishrilal Chouhan (PW13), has prepared inquest report. In the report it is not mentioned that at that time all the clothes were removed from the dead body; whereas when post-mortem was conducted, all the clothes were removed. Therefore, the discrepancy arises in both the reports. Thus, on this ground the prosecution evidence can not be doubted. 18. The prosecution's case rests on the evidence of eye witnesses Vijay (PW1), Sohan (PW2) and Dhiraj (PW5). According to Vijay (PW1) on the fateful day at about 8:00 a.m. he and his servant Mahesh were irrigating their field by drawing water from the canal. At about 10:00 a.m., his brother Gayaprasad and Sohan along with their nephew Sanjay, Ajay and Dhiraj came with pipe on the field then they were spreading the pipe. At about 11:00 a.m., all the seven appellants came together in a Jeep. They all get down from the Jeep and came on the field of complainant Vijay and started abusing and raised the objection as how they are irrigating the field from the water of canal. Deceased Gayaprasad tried to convince the appellant then appellant Ashok has caught hold the neck of Gayaprasad and appellant Anoop has pulled out a knife from his pocket and inflicted injury on left side of the ribs, thereafter all the appellants have inflicted injuries with knives and lathis. When his brother Sohanlal (PW2) tried to rescue Gayaprasad then appellant Pawan has caused the injury with knife to Sohanlal near right eye, when Vijay (PW1) tried to rescue them then appellant Munna and Ashok have inflicted injuries with lathi, legs and fists. Appellant Golu has inflicted injury with knife on later-part of the ear to Gayaprasad, thereafter all the appellants ran away in Jeep. Immediately Gayaprasad, Sohanlal and he himself proceeded to hospital in Ajay's Car. On the way he get down at Police Station Kishanganj, then the injured proceeded to hospital. 19. Sohanlal (PW2) and Dhiraj (PW5) amply corroborates the evidence of Vijay (PW1). 20. Immediately Gayaprasad, Sohanlal and he himself proceeded to hospital in Ajay's Car. On the way he get down at Police Station Kishanganj, then the injured proceeded to hospital. 19. Sohanlal (PW2) and Dhiraj (PW5) amply corroborates the evidence of Vijay (PW1). 20. Learned senior counsel for the appellants has drawn our attention towards the fact that police statement of Sohanlal (PW2) was recorded on 15.12.2004 i.e. after lapse of seven days. In this regard prosecution has produced an application (Ex.P-50) addressed to Medical Officer Suyash Hospital, Indore in which it is mentioned that the Investigating Officer on 8.12.2004 and 12.12.2004, approached the Doctors of Suyash Hospital, Indore, but the injured Sohanlal was not fit to give statement, therefore, his statement could not be recorded. From the medical papers it is evident that Sohanlal was admitted in the hospital on 7.12.2004 and discharged on 15.12.2004 and he sustained grievous injury. Otherwise also in the police statement, Sohanlal has not disclosed any new fact, which is not earlier disclosed in FIR and the police statement of Vijay (PW1) and Dhiraj (PW5). Thus, there is no force in the argument of learned senior counsel for the appellants that the statement of Sohanlal has been deliberately recorded after seven days. 21. Learned senior counsel for the appellants submitted that witness Vijay and Sohan are real brother of the deceased Gayaprasad; whereas Dhiraj (PW5) is their nephew. Thus they are close relatives of the deceased and due to political rivalry they are having inimical terms with the appellants, therefore, they are not reliable witnesses. As we have discussed above, during the incident witnesses Vijay (PW1) and Sohanlal (PW2) have sustained grievous injuries. The relationship is not a factor to affect the credibility of a witness because a relation would not conceal the actual culprit and falsely implicate innocent person as held by Hon'ble apex Court in the case of Kalegura Padma Rao v. State of Andhra Pradesh, reported in (2008)2 SCC (Cri.) 197. 22. We have scanned the evidence of eye witness Vijay, Sohanlal and Dhiraj. In the crossexamination they have admitted that they are supporters of Bhartiya Janta Party (BJP); whereas the appellants are supporters of Congress Party. Only on this count it cannot be inferred that these witnesses have falsely implicated the appellants in this case. 23. 22. We have scanned the evidence of eye witness Vijay, Sohanlal and Dhiraj. In the crossexamination they have admitted that they are supporters of Bhartiya Janta Party (BJP); whereas the appellants are supporters of Congress Party. Only on this count it cannot be inferred that these witnesses have falsely implicated the appellants in this case. 23. Evidence of injured witnesses Vijay (PW1) and Sohanlal (PW2) lends credence to their testimony and their evidence is entitled to great weight. It is further corroborated by the evidence of eye witness Dhiraj (PW5), prompt FIR and medical evidence. Despite searching cross-examination nothing substantial was elicited from the testimony of these witnesses to discredit their evidence. 24. Now, we have considered whether all the appellants formed unlawful assembly with deadly weapons for committing the murder of Gayaprasad and inflicting the grievous injuries to Vijay and Sohanlal. 25. In the present case all the six appellants armed with deadly weapons like knives and lathis, came together in a jeep and assaulted Gayaprasad with knife and inflicted five incise wounds, one step wound and one contusion and also assaulted complainant Vijay (PW1) and Sohanlal (PW2). All the six members have actively participated and in furtherance of common object, caused fatal injury to Gayaprasad and grievous injury to Vijay and Sohanlal. Thus, all the appellants have formed unlawful assembly with deadly weapons, therefore, learned trial Court has rightly convicted all the appellants with the aid of section 149 of IPC. 26. The appellants have examined Anil Kailotra as defence witness (DW1), who was at relevant time President of Choral Canal Irrigation Water Distribution and Water Consumer Society, Harsola. He deposed that, on the date of incident, there was a turn of Rangwasa society for drawing the water from the canal. He admitted in the cross-examination that he has not received any information that the villagers of Santer Village were drawing the water from the canal out of their turn. However, the defence witness has not produced any document to show that on the date of incident complainant party was drawing the water from the canal out of turn. Even though if they are drawing the water out of turn, it does not give a right to the appellants to form unlawful assembly and to murder an innocent person. Thus, the evidence of defence witness is not helpful to the appellants. 27. Even though if they are drawing the water out of turn, it does not give a right to the appellants to form unlawful assembly and to murder an innocent person. Thus, the evidence of defence witness is not helpful to the appellants. 27. Lastly, learned senior counsel submitted that the complainant party was aggressor and there was no pre-meditation and entire incident was due to a sudden fight as the appellants have been objecting to the user of canal water without paying charges. Thus, the act of the appellants comes within the Exception 4 to section 300 of IPC. Therefore, they should have been punished under section 304 Part 1 of IPC. 28. Exception 4 to section 300 IPC reads as under : “Exception 4 - culpable homicide is not murder if it is committed without pre-meditation, in a sudden fight, in the heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” In order to invoke the applicability of Exception 4 to section 300 IPC, the following conditions are to be satisfied namely : (i) That, the incident happened without pre-meditation. (ii) In a sudden fight. (iii) In the heat of passion. (iv) Upon a sudden quarrel. (v)Without the offender having taken undue advantage or acted in a cruel or unusual manner” 29. Considering the totality of the facts and circumstances of the case, we are unable to agree with the argument advanced by the learned senior counsel for the appellants. In the present case, all the seven appellants came together, armed with deadly weapons like knives and lathis and they raised the objection as to why the complainant party is drawing water from the canal. When deceased Gayaprasad tried to convince them, appellant Anoop inflicted injury with knife on left side of the chest of Gayaprasad and when Vijay and Sohanlal tried to rescue Gayaprasad, then the other appellants have caused grievous injury to Vijay and Sohanlal. From these facts it is clear that the appellants had came there with pre-meditation. In the incident, none of the appellants have sustained any injury, therefore, it is not a case of free fight. There is no material to infer that the appellants have inflicted injuries in the heat of passion and upon a sudden quarrel. From these facts it is clear that the appellants had came there with pre-meditation. In the incident, none of the appellants have sustained any injury, therefore, it is not a case of free fight. There is no material to infer that the appellants have inflicted injuries in the heat of passion and upon a sudden quarrel. Thus, we are of the view that trial Court has rightly convicted the appellants under section 302/149 of IPC. 30. As we discussed above, appellants have caused grievous injury to complainant Vijay and Sohanlal. Thus, there is no illegality in recording the conviction of the appellants under section 325/149 of IPC on two counts. 31. In the result we find no merit in this appeal. Thus, the conviction and sentence of the appellants so also the order of disposal of property is maintained and the appeal is hereby dismissed.