JUDGMENT : Kanwaljit Singh Ahluwalia, J. To welcome new year, on the eve of new year, young persons in a new year revelry over the priority to have food served at a Dhaba, caused injuries leading to death of one Yatindra Singh and injuries to Mahaveer Meena (P.W.2) and Gajendra Singh (P.W.5). Kuldeep Sardar, the author of the fatal injury to Yatindra Singh, is absconding and till today has not been apprehended. 2. The investigating agency, on the basis of written report (Exhibit-P/3) presented by Braj Raj Singh (P.W.3) before Salauddin (P.W.18) had registered a formal FIR (Exhibit-P/31). In the said FIR, along with Kuldeep Sardar resident of Rampura, Shyam Sunder @ Shyam Nagar, Rajesh @ Sonu, Mahaveer Gauttam and Ramavtar Meena were nominated as accused. Since the Investigating agency could not arrest Kuldeep Sardar, the investigation agency presented the charge-sheet against Shyam Sunder @ Shyam Nagar, Rajesh @ Sonu, Ramavtar and Mahaveer Gauttam. The charge-sheet so filed was committed to the court of Sessions and was entrusted for trial to Additional Sessions Judge (Fast Track) No. 1, Kota. The said court, on 24.5.2007 formulated the charges. The accused, Shyam Sunder @ Shyam Nagar, Rajesh @ Sonu, Ramavtar and Mahaveer Gauttam were charged for the offences under Sections 148, 323/149, substantively for the offence under Section 324 in alternate for offence under Section 324/149, substantively for offence under Section 307, in alternate for offence under Section 307/149 and substantively for offence under Section 302 and in alternate for offence under Section 302/149 IPC. The appellants were also charged for the offence under Section 4/25 of Arms Act. The trial court vide impugned judgment dated 1.2.2010 held the appellants guilty of offence under Sections 148, 323/149, 324/149, 307/149, 302/149 IPC and Section 4/25 of Arms Act. 3. Having convicted the appellants for the above said offences, the trial court sentenced the appellants as under:- U/s. 302/149 IPC - to undergo life imprisonment, and to pay a fine of Rs. 5,000/- each, in default of payment of fine to further undergo additional five months S.I. U/s. 307/149 IPC - to undergo ten years R.I., and to pay a fine of Rs. 5,000/- each, in default of payment of fine to further undergo additional five months S.I. U/s. 324/149 IPC - to undergo three years R.I., and to pay a fine of Rs. 5,000/- each, in default of payment of fine to further undergo additional five months S.I. U/s. 324/149 IPC - to undergo three years R.I., and to pay a fine of Rs. 2,000/- each, in default of payment of fine to further undergo additional two months S.I. U/s. 323/149 IPC - to undergo six months R.I. and to pay a fine of Rs. 1,000/- each, in default of payment of fine to further undergo additional one month S.I. U/s. 148 IPC - to undergo two years R.I., and to pay a fine of Rs. 2,000/- each, in default of payment of fine to further undergo additional two months S.I. U/s 4/25 of Arms Act - to undergo one year S.I. and to pay a fine of Rs. 500/-each, in default of payment of fine to undergo additional fifteen days S.I. 4. Aggrieved against their conviction and sentence, Shyam Sunder @ Shyam Nagar, Rajesh @ Sonu and Ramavtar have instituted D.B. Criminal Appeal No. 204/2010, whereas Mahaveer Gauttam has preferred D.B. Criminal Appeal No. 175/2010. Both the appeals are directed against the same judgment of conviction rendered and order of sentence passed by the trial court. It is prayed in the appeals filed that the appellants be acquitted of all the charges. Since both the appeals assail the common judgment, we shall decide both the appeals together. 5. Braj Raj Singh (P.W.3) presented the written report (Exhibit P/3), on the basis of which formal FIR (Exhibit-P/31) was registered. 6. In nutshell, it is stated in the FIR (Exhibit-P/31) that on 31.12.2006 in the night at about 9:00-9:30 PM, Braj Raj Singh (P.W.3) along with Yatindra Singh (deceased), Gajendra Singh (P.W.5), Mahaveer (P.W.2) and Narendra Singh in a Maruti Car bearing No. RJ 20, C 7260, had gone to take dinner at Dhaba. They placed the order. Meanwhile, five persons namely Kuldeep Sardar resident of Raipura, Shyam Nagar resident Mahrana, Sonu s/o Jagram Meena resident of Barana, Mahaveer Gauttam, Ramavtar Meena resident of Itawa, came in an Indica Car. They also placed the order for dinner. The food was first served to the complainant party to which accused objected, as to why food was not served firstly to them. Upon which abuses were exchanged. Yatindra Singh intervened and said that since we are waiting earlier to you, the order is to be served to us. They also placed the order for dinner. The food was first served to the complainant party to which accused objected, as to why food was not served firstly to them. Upon which abuses were exchanged. Yatindra Singh intervened and said that since we are waiting earlier to you, the order is to be served to us. Upon this, Sonu Meena caught hold of neck of Yatindra Singh, Mahaveer Gauttam caught hold of right hand and Ramavtar caught hold of left hand of Yatindra Singh. Kuldeep Sardar gave an injury in the abdomen of Yatindra Singh. Shyam Nagar had caused injury on the back side near the thigh. The complainant party raised noise of Save-Save. Then Sonu Meena left the neck of Yatindra Singh and caused a knife blow to Gajendra in the abdomen. Mahaveer Gauttam and Ramavatar Meena gave a knife blow each in the abdomen of Mahaveer Meena. Thereafter, they broke the window panes of the car of the complainant and all accused left the spot in their Indica car. Yatindra Singh was taken to hospital, where he was declared dead. Gajendra Singh (P.W.5) and Mahaveer Meena (P.W.2) were admitted in the hospital. 7. From the above FIR, following facts are discernible: a. That the accused and the complainant had no previous enmity. They came on the new year evening at a Dhaba to take food, where regarding who should be served food first, abuses were exchanged and altercation ensued. b. Yatindra Singh died in the occurrence. Fatal injury in his abdomen is attributed to Kuldeep Singh, who has not been apprehended, till today. c. Shyam Sunder @ Shyam Nagar accused-appellant, caused injuries with knife on the back side of thigh of deceased Yatindra Singh. This injury has been declared as simple in nature. d. Gajendra Singh (P.W.5) had suffered injury in the abdomen, which being very serious injury, had caused severe damage. This injury is attributed to Rajesh @ Sonu Meena accused-appellant. e. Mahaveer Meena (P.W.2) also suffered two stab injuries, which being serious had also caused severe damage. Mahaveer Meena (P.W.2) was also operated and both the injuries were declared dangerous to life. These injuries are attributed to Ramavatar and Mahaveer Gauttam. 8. Dr. Arun Sharma (P.W.7) had conducted autopsy on the person of deceased Yatindra Singh. e. Mahaveer Meena (P.W.2) also suffered two stab injuries, which being serious had also caused severe damage. Mahaveer Meena (P.W.2) was also operated and both the injuries were declared dangerous to life. These injuries are attributed to Ramavatar and Mahaveer Gauttam. 8. Dr. Arun Sharma (P.W.7) had conducted autopsy on the person of deceased Yatindra Singh. In the Post Mortem Report (Exhibit P/8), he had noted the following injuries:- (i) Incised wound 2.5cm x ½ cm, SD, on left gluteal fol, position-transversely and obliquely. (ii) Incised wound 2.5cm x 1cm, cavity deep, longitudinally placed on right lumber and hypochondrium region in between anterior axillary line and mamary line. (iii) Incised wound 4cm x ¼ cm, SD on dorsum of right thumb, lower part and hand. (iv) Abrasion, 1cm x 1cm, on dorsum of right hand. (v) Incised wound ½ cm x ¼ cm x SD on 3rd of dorsum of left little finger. On dissection of injury no. 2, the wound was piercing the muscle peritonium and extending upward towards the right lobe of liver track going upward inward to lateral inferior border of right lobe and making incised wound on of 2.5 x 1.5 x 1.5cm, size wound in liver right lobe." 9. As per Dr. Arun Sharma (P.W.7), cause of death is shock as a result of ante mortem injury to liver, which was sufficient to cause death. In cross-examination, Dr. Arun Sharma (P.W.7) admitted that except injury No. 2, which is injury to liver, all other injuries were on non-vital parts and were not sufficient to cause death individually or collectively. We will reproduce the following part of the cross-examination of Dr. Arun Sharma (P.W.7), as under:- ^^izn'kZ ih&8 esa vafdr pksV la[;k nks ds vfrfjDr vU; lHkh pksVsa 'kjhj ds uksuokbVy ikVZ esa FkhA ;g lgh gS fd pksV la[;k nks ds vykok ckdh pksVsa vdsyh o lkewfgd :i ls e`R;q dkfjr djus ds fy, i;kZIr ugha FkhA ;g lgh gs fd e`rd dh pksVksa ls vR;f/kd jDrL=ko gqvk FkkA e`rd dh e`R;q vR;f/kd jDrL=ko ds dkj.k gqbZ gSaA pksV uEcj nks dk vxj rqjar bZykt gks tkos rks e`rdk dks cpk;k tk ldrk gks bl ckjs esa fuf'pr rkSj ij ugha dgk tk ldrk ltZu crk ldrk gSA** 10. Injury No. 2 as stated earlier is attributed to Kuldeep Sardar who till today, is absconding. 11. Injury No. 2 as stated earlier is attributed to Kuldeep Sardar who till today, is absconding. 11. Mahaveer Meena (P.W.2) and Gajendra Singh (P.W.5) were medico-legally examined by Dr. Deepak Sharma (P.W.10). As per injury report (Exhibit-P/14), Dr. Deepak Sharma has found following injuries on the person of Gajendra Singh:- (i) Stitched wound, 3cm long on right flowing of abdomen, lower to it with clear cut margin. (ii) Stitched wound 18 cm long, para med. Region with clear cut margin. (iii) Damage tube, 1 cm long on right side of abdomen, operated wound. 12. Dr. Deepak Sharma (P.W.10), as per injury report (Exhibit-P/15) had found the following two injuries on Mahaveer Meena (P.W.2):- (i) Stab wound (2x1) cm, on right axilla mid line. (ii) Stab wound, 2½ x 1cm, on right side of abdomen. 13. In cross-examination, Dr. Deepak Sharma (P.W.10) admitted that Gajendra Singh (P.W.5) had suffered only one injury. It will be apposite here to reproduce the following part of the cross-examination of Dr. Deepak Sharma (P.W.10), as under:- ^^;g lgh gS fd xtsUnz flag et:c ds ?kVuk ds nkSjku flQZ ,d gh pksV vk;h FkhA** 14. Both the injuries on the person of Mahaveer Meena (P.W.2) are attributed to Ramavatar and Mahaveer Gauttam. Injury on the person of Gajendra Singh (P.W.5) is attributed to Rajesh @ Sonu Meena. 15. Dr. Neeraj Devenda (P.W.4) had operated Gajendra Singh (P.W.5). Dr. Rakesh Sharma (P.W.15) had conducted operation on the person of Mahaveer Meena (P.W.2). As per opinion of the attending doctor, injury suffered by Mahaveer Meena (P.W.2) and Gajendra Singh (P.W.5) were declared as dangerous to life. 16. Mr. Suresh Sahani, duly assisted by Mr. Ram Mohan Sharma, appearing for the appellants, namely Shyam Sunder @ Shyam Nagar, Rajesh @ Sonu and Ramavtar, submitted that Braj Raj Singh (P.W.3), the complainant first informant was not present at the spot. It is contended that the very fact that Braj Raj Singh (P.W.3) had suffered no injury, exclude his presence at the spot. It is contended that since the presence of Braj Raj Singh (P.W.3) is not stamped at the spot, he is not an eyewitness of the occurrence. It is further submitted that even the Investigating Officer admitted that Braj Raj Singh (P.W.3) was not present at the scene of occurrence. 17. Mr. It is contended that since the presence of Braj Raj Singh (P.W.3) is not stamped at the spot, he is not an eyewitness of the occurrence. It is further submitted that even the Investigating Officer admitted that Braj Raj Singh (P.W.3) was not present at the scene of occurrence. 17. Mr. Sahani further urged that the occurrence had taken place on 31.12.2006 between 9:00 - 9:30 PM, the written report (Exhibit-P/3) was submitted at 4:00 AM, case was registered on 1.1.2007 at 8:00 AM and special report reached Illaqa Magistrate on 2.1.2007 at 10:15 AM at Digod, which is at a distance of 15 kms from the police station. Mr. Sahani, the learned counsel for the appellant has canvassed that delay in reaching of the special report is sufficient to infer that there was no version with the prosecution witnesses. It is contended that since Mahaveer Meena (P.W.2) and Gajendra Singh (P.W.5) were unconscious, no other eyewitnesses were available and Braj Raj Singh (P.W.3) being a non-eyewitness has introduced a false version and cleverly distributed injuries to all the accused. Thus, it is canvassed that in the present case, pattern of the prosecution story has been laid by a non-eyewitness and the injured who re-gained consciousness later, are bound to follow the pattern to support the prosecution case. 18. We have given our thoughtful consideration to the rival arguments advanced by the learned counsel for the parties. 19. In the present case, Mahaveer Meena (P.W.2) and Gajendra Singh (P.W.5) have received very serious injuries, which were life threatening. It is not the case of the prosecution that all the witnesses and the deceased were acting in concert. They as friend had gone to take meals. Thus, Mahaveer Meena (P.W.2) and Gajendra Singh (P.W.5) will be the last persons to substitute the real assailants. Being a victim, their first tendency is to secure conviction for those, who have caused them injuries. However, from the arguments raised, we can safely come to conclusion that all the four appellants in the occurrence have caused only single injury. There are five injuries on the person of Yatindra Singh. Injury No. 2 is attributed to Kuldeep Sardar, injury No. 1 is attributed to Shyam Sunder @ Shyam Nagar, which is on hip. Rest of the injuries are abrasions and bruises, which can be suffered due to fall. There are five injuries on the person of Yatindra Singh. Injury No. 2 is attributed to Kuldeep Sardar, injury No. 1 is attributed to Shyam Sunder @ Shyam Nagar, which is on hip. Rest of the injuries are abrasions and bruises, which can be suffered due to fall. Gajendra Singh (P.W.5) has suffered one injury, and Mahaveer Meena (P.W.2) has suffered two injuries. Injury to Gajendra Singh (P.W.5) is attributed to Rajesh @ Sonu and two injuries on the person of Mahaveer Meena (P.W.2) are attributed to Ramavtar and Mahaveer Gauttam. All the four appellants have not repeated the blow. This is a material fact which is to be seen in the context that the occurrence had taken place on the new year eve on 31.12.2006 between 9:00-9:30 PM, the written report has been presented on 1.1.2007 at 4:00 AM. 20. In the present case, over serving of the food, abuses were exchanged and altercation had taken place. Each accused has caused single injury, which is sufficient to come to the conclusion that the occurrence was a sudden affair without pre-mediation and it had occurred in the heat of passion, on the spur of moment. Thus, we cannot hold that there was an unlawful assembly and the common object of the same was to cause murder. According to us, since the occurrence had taken place on the spur of moment, without any pre-mediation, each accused is to be held responsible for individual role. It is a case of individual liability. 21. Fatal injury as per the evidence before us is attributed to Kuldeep Sardar, who is not before us, as he is absconding. So far, Shyam Sunder @ Shyam Nagar is concerned, he had caused simple injury with knife on the non-vital part i.e. hip of the deceased Yatindra Singh. He is liable to be convicted for the offence under Section 324. 22. Rajesh @ Sonu has caused injury on the person of Gajendra Singh (P.W.5). The said injury as per opinion of the doctor was sufficient to cause death in the ordinary course of nature, except for timely medical aid. Similarly, Ramavtar and Mahaveer Gauttam have caused single injury each to Mahaveer Meena (P.W.2) and both the injuries have been declared sufficient to cause death in the ordinary course of nature, except for timely medical aid. Therefore, they are also liable for the offence under Section 307 IPC. 23. Similarly, Ramavtar and Mahaveer Gauttam have caused single injury each to Mahaveer Meena (P.W.2) and both the injuries have been declared sufficient to cause death in the ordinary course of nature, except for timely medical aid. Therefore, they are also liable for the offence under Section 307 IPC. 23. As a result of above discussion, we acquit the appellants for the offence under Section 302/149 IPC. We hold Rajesh @ Sonu, Ramavtar and Mahaveer Gauttam individually liable for the offence under Section 307 IPC and Shyam Sunder @ Shyam Nagar for the offence under Section 324 IPC. We maintain the sentence awarded upon Shyam Sunder @ Shyam Nagar for the offence under Section 324 IPC and 4/25 of Arms Act. He is acquitted of Section 302/149, 307/149 and 323 and 148 IPC. 24. We acquit Rajesh @ Sonu, Ramavtar and Mahaveer Gauttam for the offence under Section 302/149 IPC. We hold them individually liable for the offence under Section 307 IPC and Section 4/25 of Arms Act. They are acquitted of the offence under Sections 324, 323 and 148 IPC. Having upheld their conviction for the offence under Section 307 IPC and 4/25 of Arms Act, we reduce the sentence of ten years awarded upon them u/s 307 IPC to five years, considering that the occurrence is nine years old and the appellants have suffered pain an agony of a protracted trial. 25. However, we maintain the sentence of fine qua the counts, appellants have been convicted along with default clause. 26. With the above modification, both the appeals stand disposed of.