JUDGMENT : R.K. GAUBA, J. 1. The four appellants before us were prosecuted on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) submitted on 28.08.1996 by the Station House Officer (SHO) of police station Model Town (police station ) on conclusion of investigation into the first information report (FIR) No.255/1996 that had been registered on 06.06.1996. Upon the case being committed by the concerned Metropolitan Magistrate, they stood trial on the basis of evidence submitted with the said police report, on the charge for offence under Section 302 read with Section 34 of Indian Penal Code, 1860 (IPC), the gravamen of which was that on 05.06.1996, at about 10:30 p.m., on a public road near Ambedkar Park, Lal Bagh within the jurisdiction of said police station, in furtherance of their common intention, they had committed the murder of Baiju son of Bhola (PW-4), aged about 23 years. On the consideration of the evidence adduced by the prosecution, essentially through the mouthpiece of twenty one witnesses, that would include Noor Mohammad (PW-7) and Vijender (PW-11), both presented as witnesses to the occurrence, the court of sessions, by judgment dated 29.07.2000, held all the four appellants guilty, as charged, and by order dated 31.07.2000 awarded sentence of imprisonment for life with fine of Rs.25,000/- each, in default further simple imprisonment for two years’ each, also directing that the amount of fine, if realized, would be paid as compensation to the legal heirs of the deceased person. 2. Feeling aggrieved with the judgment returning finding of guilty, and the order on sentence, these appeals have been filed assailing the view of the trial Court, contending primarily that the prosecution evidence, in general, and that of the aforementioned two eye witnesses, in particular, was not worthy of reliance and, further, that the appellants have been falsely implicated. 3. Before coming in grips with the contentions urged on behalf of the appellants, it would be proper to have a brief overview of the facts and evidence leading to the impugned judgment. But, even before we come to the contentious parts, certain area which is indisputable may be taken note of. 4. 3. Before coming in grips with the contentions urged on behalf of the appellants, it would be proper to have a brief overview of the facts and evidence leading to the impugned judgment. But, even before we come to the contentious parts, certain area which is indisputable may be taken note of. 4. Baiju son of Bhola (the victim) was an ordinary resident of House No.10071, Gali No.1, Multani Dhanda, Pahar Ganj, New Delhi, Vijender (PW-11), also a resident of Pahar Ganj area (though in another locality known as Krishna Gali near New Delhi Railway Station) was an acquaintance of Baiju (the victim). Sometime before 10:30 p.m. on 05.06.1996, both had met each other in a local bus going towards Lal Bagh (within the jurisdiction of PS Model Town), a locality separated by several kilometers, per PW-11 the victim having confided in him that he was going to recover some money from appellant Vijay Pal (A1). Since that has been the premise of the prosecution case presented before the Court, as reflected in the FIR (Ex.PW-6/A), registered by Head Constable Rattan Lal (PW-6), the Duty Officer in the police station at 02:50 hours on 06.06.1996, on the basis of statement Ex.PW-7/A of Noor Mohammad (PW-7), made before Sub-Inspector Om Prakash (PW-12), and forming part of his rukka (Ex.PW-12/A), it may be noted here itself that the money which the victim intended to realize from appellant Vijay Pal (A1) was an amount of rupees one lac which he (A1) allegedly had fled away with, after committing theft in the area of Pahar Ganj. It may further be observed here itself that during the investigation there was no probe into the allegation of theft of such amount of money by A1 from Pahar Ganj. Thus, no evidence worth the name supporting the said theory has come on board at any stage of the process. 5. There is unimpeachable evidence presented to substantiate the prosecution case that Baiju (the victim) sustained serious injuries sometime around 10:30 p.m. on 05.06.1996 at the above mentioned place in the area of Lal Bagh within the jurisdiction of police station Model Town and further that he died as a consequence of such injuries. 5. There is unimpeachable evidence presented to substantiate the prosecution case that Baiju (the victim) sustained serious injuries sometime around 10:30 p.m. on 05.06.1996 at the above mentioned place in the area of Lal Bagh within the jurisdiction of police station Model Town and further that he died as a consequence of such injuries. Head Constable Geeta (PW-19), then posted in the Police Control Room (PCR), proved PCR form (Ex.PW-19/A) which reflects that a telephonic information had been received at 22:41 hours on 05.06.1996 about a quarrel (jhagra) in the area of Lal Bagh, B-400, Ambedkar Park. It is not clarified as to whom the property B-400, Ambedkar Park belongs. It is also not proved nor clarified as to who was the source of this input received by PCR. The PCR form contains some further input received from a PCR van (which had been activated in the process) stating that one of the assailants had been apprehended, the others (10 to 15 persons who were associates of Vijay Pal) having fled away after giving beatings to certain individual. The PCR van incharge also reported at 22:42 hours that the injured was being shifted to Hindu Rao Hospital (hospital). This input, we may note, was given by Head Constable Rajender Singh (PW-14), Incharge of the PCR van (with call sign ‘Commander 8’). His deposition shows that when the PCR van arrived at the scene of occurrence two persons in injured state were found there, one of them being appellant Vijay Pal (A1) and the other, whose identity was then not known, he being Baiju (the victim). 6. The PCR input was passed on to the local police station at 11:02 p.m. on wireless network whereupon it was logged vide DD No.25 (Ex.PW-18/A) by Head Constable Munny Singh PW-18), the then duty officer in the police station . The matter arising out of this DD entry was entrusted for an inquiry to SI Om Prakash (PW-12), the first Investigating Officer (IO). PW-12 accompanied, amongst others, by Constable Om Singh (PW-8) reached the place of occurrence and upon learning that two persons had been taken to the hospital proceeded there and found A1 having been examined as per medico legal certificate (MLC) (Ex.PW-1/DA), besides the victim (identity then unknown) as per the MLC (Ex.PW-1/A), each of them having been brought there by the PCR van under the control of PW-14. The subsequent investigation brought out that the deceased was Baiju son of Bhola, a resident of Pahar Ganj area. 7. As per the MLC (Ex.PW-1/A) of Baiju (the victim), proved by its author Dr. Rakesh Gupta (PW-1), the medical examination in the casualty had showed he to have suffered one lacerated wound about 3 cm long on the occipital region and one incised wound about 4 cm long on the posterior aspect/back of the neck, the said injuries having been suffered by blunt and sharp objects. According to PW-1, Baiju (the victim) was reeking of alcohol. He was referred to surgery department for opinion and further management. He died during medical treatment in the hospital - per the death report (Ex.PW-20/B) at 08:35 p.m. on 06.06.1996. It is clear that he remained unfit for giving any statement to the IO right from the time of arrival in the hospital till death. After the death, his dead body was sent for post-mortem examination on the basis of the application (Ex.PW-20/A), it having been conducted by Dr. Shri C.B. Dabas (PW-5) in the mortuary of the hospital. 8. The autopsy report (Ex.PW-5/A), proved by Dr. C.B. Dabas (PW-5), reflects that the deceased had suffered as many as twenty one external injuries. They include (i) lacerated wound 2.5 x 1.5 cm over the left occipital region, (ii) lacerated wound 2.5 cm x 1.0 cm over left parietal occipital region, and (iii) one incised wound 4.5 cm x 0.3 cm over back of neck, 2.5 cm below hairline over middle part. The other injuries included abrasions over forehead, right cheek, right mandible, inner aspect of right elbow, front part of right forearm and near right thumb, right thumb, right palm, outer upper part of right thigh, middle part of right thigh, lower front of right thigh, outer part of right ankle, on the back of left hand over middle finger, outer middle part of left forearm, left side back of chest in scapular region, back of right chest in scapular region, back of chest on right side about 3 cm outer to middle line. The other injuries included an incised wound 2 cm x 0.2 cm over right palm and stab wounds over right side gluteal region and right buttock besides lacerated wound over upper part of the left thigh and in front of left knee. 9. The other injuries included an incised wound 2 cm x 0.2 cm over right palm and stab wounds over right side gluteal region and right buttock besides lacerated wound over upper part of the left thigh and in front of left knee. 9. It is, however, the internal examination of the dead body of Baiju which revealed the cause of death. The autopsy report and the testimony of PW-5 show that he had found effusion of blood present under scalp in the parieto and right occipital region. Though the scalp bone was intact, there was massive subdural haemorrhage over left cerebral hemisphere and right parietal lobe. Haemorrhages were present over both parietal lobes. In the opinion of the autopsy doctor, the incised wound on the back of the neck had been caused by a sharp edged object (it also being the weapon of offence used for the other incised/stabbing injuries), the first two injuries mentioned earlier (the lacerated wounds on the left occipital region and left parietal occipital region) as indeed others, having been caused by blunt object/force, the death having occurred “due to cerebral damage (head injury).” 10. The autopsy doctor had preserved viscera but since the FSL result (Ex.PW-20/E) gave negative result for common poisons, there being no other theory propounded by either side, conclusions about the cause of death have to be reached on the basis of facts noted in the autopsy report and in the light of medical opinion. 11. We must pause here for one observation. In the FIR, the first informant (PW-7) had mentioned the use of knife for injury to be inflicted on the neck of the victim, this, of course, besides bricks and stones being used in the assault one directed against the scalp. Upon perusal of the trial court record, it appears to us that the investigating agency, the prosecution and the trial court proceeded on the assumption that the injury caused on the neck with knife was the prime injury having a bearing on the cause of death. This, in our view, was wholly an erroneous approach. The injury inflicted on the neck (undoubtedly a vital part of the body) with a knife (undoubtedly a dangerous weapon specially when put against such vital part of the body) was, of course, grave, serious and possibly life threatening. This, in our view, was wholly an erroneous approach. The injury inflicted on the neck (undoubtedly a vital part of the body) with a knife (undoubtedly a dangerous weapon specially when put against such vital part of the body) was, of course, grave, serious and possibly life threatening. But, in the instant case, everyone, including the defence, seems to have forgotten the observations of the autopsy doctor in his report based on the examination of the dead body. The death occurred due to cerebral damage, relatable to the first two injuries mentioned above (lacerated wounds on the left occipital and left parietal occipital region). This connects with the evidence, which we shall note in due course, relating to assault on the head with a stone. We do not wish to say more on the error because such gross misreading of the material on record in a criminal case, possibly due to preconceived notions (use of knife against neck could be fatal), as appears to have happened here, is hopefully an exception, and a stray instance of its kind. 12. We would reserve for later part of the judgment comment on the question as to whether there was intention to cause death or such bodily injury as was likely to cause death within the meaning of first and second clause of Section 299 IPC (culpable homicide). 13. Twenty one injuries including two lacerated wounds on the scalp leading to cerebral damage caused by blunt object/force and incised wounds including one on the back of the neck with a sharp object undoubtedly reveal not merely a very vicious attack but an assault committed with the object and intent of causing hurt. The medical opinion itself is sufficient to conclude that the death of Baiju was a case of culpable homicide for the reason that the injuries which proved fatal, as also the incised wound caused by the knife on the neck, were such as from which knowledge may be imputed the author of such injuries that thereby he was likely to cause death (as in third clause of Section 299 IPC). 14. 14. That Baiju suffered the injuries (including those which proved fatal), at the time, date and place mentioned in the charge is borne out from the testimonies of PW-7 and PW-11 as indeed the evidence of the first IO (PW-12), corroborated by Constable Om Singh (PW-8), based on their observations of the scene of crime and evidence gathered from there. Since there is no dispute with regard to the date, time and place of the incident in these proceedings before us, particularly when Kishan (DW-2) examined by the defence before the trial court also spoke about the incident connecting it to the same date, time and place while narrating the sequence wherein Vijay Pal (A1) had also suffered injuries. We recall here that PCR van led by Head Constable Rajender Singh (PW-14) had transported to the hospital not only Baiju (the victim) but also the appellant Vijay Pal (A1), picking them up in injured state from the same place at the same time. 15. The prosecution charge was founded on the evidence of Noor Mohammad (PW-7) and Vijender (PW-11). While PW-7 is the first informant who, per the first Investigating Officer (PW-12), had offered his own evidence by coming forward from amongst the people that had gathered at the scene of incident, PW-11 had come up during the course of investigation. Thus, the FIR is based on the version of PW-7 (vide Ex.PW-7/A) and the evidence of PW-11 was gathered during investigation through his statements (Ex.PW-11/A and B) recorded under Section 161 Cr.P.C. In the FIR, PW-7 had projected that he knew each of the four appellants as residents of Lal Bagh from before. The manner in which he narrated the sequence in court gives the impression that he, however, was not acquainted with the 3-4 persons (which would include the deceased Baiju) who had come to the place asking for Vijay Pal (A1). In contrast, PW-11, as already noted, knew the deceased Baiju, and also the purpose of his visit to the locality where he suffered injuries as also the four appellants on account of his earlier visits to the area (since his sister resides there). 16. In contrast, PW-11, as already noted, knew the deceased Baiju, and also the purpose of his visit to the locality where he suffered injuries as also the four appellants on account of his earlier visits to the area (since his sister resides there). 16. As per the prosecution case, based on the versions of PW-7 and PW-11, statedly given during investigation, Baiju wanted to realize the amount of rupees one lac from appellant Vijay Pal (A1) and had gone to the place in question accompanied by PW-11 and some other persons. The prosecution case was that Baiju asked for information regarding the whereabouts of Vijay Pal and when it was learnt that Vijay Pal (A1) was present, the talk of return of money stolen from Pahar Ganj led, first to a verbal exchange, and thereafter, an assault on the person of Vijay Pal (A1) in which the others, including the three other appellants had joined. The first informant reported (as per the FIR) that the four appellants had dragged the victim on the ground and Vijay Pal (A1) had picked up and used a stone to inflict injury on his head, in which assault he was joined by appellant Rajinder @ Lalu (A2) and appellant Ranjit (A3) who had also used stone pieces and that when Baiju was about to get free from their control, appellant Naresh (A4) had caused an injury on his neck with knife consequent to which Baiju had fallen down. In this process, per the FIR, Vijay Pal (A1) had also suffered injuries and, while his three other associates (A2, A3 and A4) had fled away, the police upon arrival had shifted Baiju (the victim) and Vijay Pal (A1) to the hospital. 17. Noor Mohammad (PW-7), in his court deposition, narrating the incident affirming the prosecution case about the injury caused on the neck of the victim with knife, turned hostile about identity or role of any person other than appellant Naresh (A4). He spoke about the 3-4 boys (which clearly would include the victim) having come to the place (shop of Yadgaar tailor), where he (PW-7) was present on some personal errand, and having enquired about Vijay Pal (A1), followed by an altercation and the assault with knife. He spoke about the 3-4 boys (which clearly would include the victim) having come to the place (shop of Yadgaar tailor), where he (PW-7) was present on some personal errand, and having enquired about Vijay Pal (A1), followed by an altercation and the assault with knife. He showed ignorance about the identity of others or about the part played by each of them in the assault explaining his inability to do so on account of presence of a large crowd. The cross examination by the public prosecutor, including on the basis of he being confronted with his statement (Ex.PW-7/A), leading to FIR would not budge him from the said position. He, however, admitted his signatures on the said statement (Ex.PW-7/A) forming the basis of the FIR, also affirming the prosecution case that he had assisted the Investigating Officer in effecting the arrest of the appellant Naresh (A4) and further that he is an attesting witness to the seizure memos (Ex.PW-8/A, Ex.PW-10/C and Ex.PW-8/B), all prepared at the spot and the interrogation of the appellants leading to preparation of documents described as disclosure statements (Ex.PW-7/B and Ex.PW-7/C) respecting appellant Naresh (A4) and appellant Vijay Pal (A1) respectively. 18. Vijender (PW-11) while testifying at trial also made some departure from his version appearing in the police report. Instead of stating that he had accompanied the victim to the place of incident, he described his visit to the area as one meant for calling on his sister, though affirming that he had met the victim during the bus journey and had learnt from him that he (the victim) was going to the area to recover some amount of money from appellant Vijay Pal (A1). Nonetheless, he testified that when he was returning and had come in front of Vijay Cinema in Lal Bagh he had seen four persons beating Baiju on the road. He identified the four appellants as the said assailants and the other one hitting him with a knife. He identified Vijay Pal (A1) as the one who was holding a knife and giving injury with the said weapon to Baiju and appellant Naresh (A4) as the person who had hit Baiju with stones, the other two, Rajinder @ Lalu (A2) and Ranjit (A3), having assisted by holding on to the victim. 19. He identified Vijay Pal (A1) as the one who was holding a knife and giving injury with the said weapon to Baiju and appellant Naresh (A4) as the person who had hit Baiju with stones, the other two, Rajinder @ Lalu (A2) and Ranjit (A3), having assisted by holding on to the victim. 19. PW-11 was also declared hostile and subjected to cross examination by the public prosecutor and, confronted with his statements under Section 161 Cr.P.C. (Ex.PW-11/A and Ex.PW-11/B). He refused to affirm the prosecution case that all the four appellants collectively had made Baiju fall on the ground, appellant Vijay Pal (A1) hitting him with stone on the head and appellant Naresh (A4) giving the knife blow on the neck, at a stage when Baiju had become uncontrollable. 20. The learned trial court, by the impugned judgment, found the above testimonies of PW-7 and PW-11 to be sufficient to return finding of guilty accepting the charge of the prosecution that the four appellants had collectively assaulted Baiju and, in furtherance of common intention, committing his murder. The trial judge rejected the defence argument that the evidence of PW-7 and PW-11 could not be relied upon due to discrepancies and contradictions vis-à-vis their original statements observing that even the testimony of a hostile witness can be acted upon if the same is corroborated in material particulars by the other evidence on record noting, in this context, the statement of PW-11 during cross examination by the defence that he had been threatened by appellant Vijay Pal (A1) that his entire family would be finished. 21. It has been argued by the learned counsel for the appellants that the ocular evidence brought on record through PW-7 and PW-11 is inconsistent and full of material contradictions and not on the lines of the prosecution case, as originally set up and, therefore, does not deserve to be acted upon. Reliance was placed in this context on Dahyabhai Chhaganbhai Thakkar vs. State of Gujrat AIR 1964 SC 1563 . It was argued that the ocular evidence is contradicted by the medical evidence for which reason the prosecution cannot be held to have proved the cause of death much less the role or complicity of any specific assailant. Reference was made to judgment of a division bench of this Court reported as Kishan Pal vs. State 2004 (2) JCC 1149. It was argued that the ocular evidence is contradicted by the medical evidence for which reason the prosecution cannot be held to have proved the cause of death much less the role or complicity of any specific assailant. Reference was made to judgment of a division bench of this Court reported as Kishan Pal vs. State 2004 (2) JCC 1149. The learned counsel also submitted that the prosecution evidence does not evince clearly as to what was the root cause or the genesis of the quarrel leading to injuries being sustained not only by the victim but also by Vijay Pal (A-1) and, referring to the decision in Laxmi Singh & Ors. etc. vs. State of Bihar AIR 1976 SC 2263 , that the prosecution story cannot be assumed to be the entire truth. Placing reliance on the rulings in Wassan Singh vs. State of Punjab (1996) 1 SCC 458 ; V.S. Naidu vs. State of A.P (2004) 10 SCC 152 and Raj Pal & Anr. vs. State of Haryana (2007) 13 SCC 554 , it was argued that since injuries suffered by the appellant Vijay Pal (A-1) have not been explained by the prosecution, benefit of doubt should go to the accused as possibility cannot be ruled out that the injuries were inflicted on the person of Baiju (the victim) in exercise of right to private defence. The counsel further submitted, with reference to the ruling in Kanbi Nanjji vs. State of Gujrat, AIR 1970 SC 219 , that the case at hand at best appears to be one of a free fight resulting in injuries being suffered by members of the two groups, in which view each of the appellants must be set at liberty on benefit of doubt since only such persons who are proved to have caused injuries or death can be held guilty for the offence individually caused by them. The submission was that in view of inconsistencies in the statements of PW-7 and PW-11 with regard to the identity of the author of the injuries in the skull and neck, a conclusion with certainty cannot be reached regarding culpability of any specific individual. The submission was that in view of inconsistencies in the statements of PW-7 and PW-11 with regard to the identity of the author of the injuries in the skull and neck, a conclusion with certainty cannot be reached regarding culpability of any specific individual. Pointing out that the post-mortem report (Ex.PW-5/A), and the court testimony of the autopsy doctor (PW-5), does not say that any of the injuries suffered by the victim were likely to cause death or sufficient in the ordinary course of nature to cause death, leave alone it being a case involving act(s) so imminently dangerous that the same must “in all probability” result in death, the counsel submitted that in absence of such medical opinion, most of the injuries noticed on the dead body (excluding those on the skull and the incised wound on the neck) seen individually and collectively were such that they were indicative of intent merely to cause hurt rather than any mortal harm. 22. We must grant it in favour of the defence that PW-11 has made a statement contradictory to the prosecution story about appellant Vijay Pal (A-1) having first hit the victim Baiju on his head with a piece of stone after he had been caught hold of and made to fall on the ground. According to him, it was Vijay Pal (A-1) who had used the knife to inflict injury, which, per the original version, was a wound inflicted later by Naresh (A-4) after Baiju had fallen down and his head had been smashed with a piece of stone by appellant Vijay Pal (A-1). PW-11 instead spoke about appellant Naresh (A-4) having used the stone. This variation in the statement of PW-11, not only in contrast to the prosecution story but also his own original version in the statements under Section 161 Cr.P.C. (Ex.PW-11/A and Ex.PW-11/B), in our view, is on account of natural wear and tear of human memory. Noticeably, he identified each of the four appellants as the persons who had caught hold of Baiju and were giving him beatings leading to the injuries suffered, consequent whereupon Baiju eventually died. PW-11 may have been a close friend of Baiju but this does not make him a person interested in false implication. Noticeably, he identified each of the four appellants as the persons who had caught hold of Baiju and were giving him beatings leading to the injuries suffered, consequent whereupon Baiju eventually died. PW-11 may have been a close friend of Baiju but this does not make him a person interested in false implication. As noted above, at the time of the deposition at trial PW-11 was under pressure from the defence and informed the court about intimidatory tactics that had been employed to deter him from deposing in favour of the prosecution case. Other than the discrepancy about the nature of respective weapon used by Vijay Pal (A-1) and Naresh (A-4), his deposition brings out vividly the scene wherein Baiju was collectively assaulted by the four persons wherein most active role was played by Vijay Pal (A-1) and Naresh (A-4). His deposition is fully corroborated by PW-7, particularly with regard to the role played by appellant Naresh (A-4), he having used a knife to cause stab injury on the neck. The inability of PW-7 to identify the other three appellants cannot come in the way as the deposition of PW-11 about their involvement in the assault, in our opinion, is sufficient. 23. We do not find it to be a case where there is contradiction between the ocular evidence and medical opinion as to the cause of death. Neither of the two witnesses from the scene (PW-7 and PW-11) has spoken about any particular injury having proved fatal. The evidence brings out assault by fisticuffs and with stone and knife. It is clear that knife was used by appellant Naresh (A-4) while the stone was used by appellant Vijay Pal (A-4). Whilst it is true that the prosecution failed to muster any clear medical opinion with regard to the sufficiency or otherwise of the injuries leading to death, absence of such medical opinion cannot come in the way of the court forming an opinion on the basis of available material. The injuries and their nature have been graphically and elaborately noted in the autopsy report which also shows that it was the cerebral damage caused by the two above mentioned injuries in the head which had resulted in death. 24. We accept the defence submission that the genesis or root cause of the quarrel has not been properly proved.