JUDGMENT : MOHAMMAD RAFIQ, J. 1. This appeal is directed against judgment dated 28.03.2007 passed by Additional Sessions Judge, Ramganjmandi, District Kota (for short ‘the trial court’) whereby accused- appellants Gopal and Khadak Singh have been convicted for offence under Section 302 IPC simplicitor and sentenced to life imprisonment with fine of Rs. 1,000/- in default whereof, they were to further undergo one month’s simple imprisonment. They have been further convicted for offence under Section 324/34 IPC and sentenced to one year’s rigorous imprisonment. The trial court has convicted accused-appellant Kalyan for offence under Section 302/34 IPC and sentenced him to life imprisonment with fine of Rs. 1,000/- in default whereof, he was to further undergo one month’s simple imprisonment. He has been further convicted for offence under Section 324 IPC and sentenced to one year’s rigorous imprisonment. All the sentences were ordered to run concurrently. 2. Facts of the case are that FIR No. 102/2004 (Exhibit P-7) was registered on the basis of oral report of Shyam Manohar (PW-6) resident of Ramganjmandi against the accused- appellants and certain other persons. It was alleged in the report that on 11.06.2004 at 7.30 P.M. when the informant was sitting on his shop, accused-appellants along with some other persons, having lathies and sword in their hands, came and inflicted sword blows on Prahlad, younger brother of the informant, who sustained injuries thereof on right hand and his ankle was amputated. Ramesh and Phool Chand inflicted lathi blows on the person of the informant, injuries of which were sustained by him on ankle of right hand, back and thigh of right leg. Gopal Kumhar caught hold of father of the informant and dragged him to well. With the intention to murder, all started beating him. He sustained head injuries and became unconscious. All the accused have subjected informant and his father to beating at the instigation of Gopal Kumhar. Prior to this incident, calf of informant was hit by driver, who was resident of Kumbhcourt, dispute of which was compromised. The informant took his father and brother in jeep to hospital at Ramganjmandi for treatment. Initially, FIR was registered for offences under Sections 143, 341, 323 and 307 IPC but subsequently, father of the informant, Khuman Singh died and offence under Section 302 IPC was added. The accused-appellants were arrested and they were enlarged on bail. The informant took his father and brother in jeep to hospital at Ramganjmandi for treatment. Initially, FIR was registered for offences under Sections 143, 341, 323 and 307 IPC but subsequently, father of the informant, Khuman Singh died and offence under Section 302 IPC was added. The accused-appellants were arrested and they were enlarged on bail. After completion of investigation, the police submitted charge sheet against the accused-appellants and six others. The trial court framed charges against the accused-appellants and others under Sections 147 or 148, 302 or 302/149, 326 or 326/149, 325 or 325/149 and 323 IPC, which they denied and claimed to be tried. In support of its case, the prosecution examined as many as 28 witnesses and exhibited 42 documents. Thereafter, accused-appellants were examined under Section 313 Cr.P.C. who pleaded innocence and stated that they have been falsely implicated in the case. In defence, two witness were produced and four documents were got exhibited. The trial court, on conclusion of trial, vide judgment and order dated 28.03.2007 acquitted accused namely Ramesh Chand; Roop Chand; Gopal S/o Bhawani Lal; Jagdish; Phool Chand; Vinod Kumar, however, convicted and sentenced the accused-appellants in the manner indicated hereinabove. Hence, this appeal. 3. Mr. Biri Singh Sinsinwar, learned Senior Counsel appearing on behalf of accused- appellant Gopal Kumhar and Mr. Santosh Kumar Jain, learned counsel appearing on behalf of Khadak Singh and Kalyan argued that the leaned trial court erred in relying upon the testimony of prosecution witnesses, which is full of inconsistencies, contradictions and improvements. Genesis of the incident has been suppressed by the prosecution. Prosecution witnesses have changed their version at different stages and such witnesses cannot be treated as credible and reliable witnesses. Chaturbuj (PW-9); Ramkishan (PW-10); Gopal Dhakad (PW-11); Chatru (PW-12); Raghunath (PW-15); Ram Prasad (PW-16) and Deepekar Rai (PW-23) have not supported prosecution case and turned hostile. Statements of Balram (DW-1) and Ramkaran (DW-2) have wrongly been ignored by the trial court. These witnesses have spoken truth about the incident. Initially, First Information Report was lodged against four named accused whereas challan was filed against nine accused, therefore, the prosecution has enlarged scope of the dispute enormously and falsely implicated as many accused as possible. It is argued that recovery of weapons have been made from open place. First Information Report in this regard is totally concocted and fabricated. Initially, First Information Report was lodged against four named accused whereas challan was filed against nine accused, therefore, the prosecution has enlarged scope of the dispute enormously and falsely implicated as many accused as possible. It is argued that recovery of weapons have been made from open place. First Information Report in this regard is totally concocted and fabricated. The trial court has not attached any value to the statements of defence witnesses whereas they are entitled to the same treatment as was given the prosecution witnesses. Examination of the accused-appellants under Section 313 Cr.P.C. has not properly taken place and all the incriminating circumstances were not put to the accused-appellants. It is argued that there was no enmity between Kalyan and Prahlad. 4. Learned counsel argued that informant, Shyam Manohar (PW-6) when confronted with his police statement (Exhibit D-1) where he named only four accused, failed to explain why he did not name more accused than four. He also could not explain why in that statement he could not allege that Kalyan had chhurra. He did not name Kalyan and did not attribute use of chhurra to any accused. He has thus made tremendous improvement over his previous version. He also could not explain why in the report (Exhibit P-7), he did not specifically allege that Gopal Kumhar had sword in his hand. Prahlad Singh (PW-14) admitted that criminal case was registered against Narain Singh for selling CDs of blue films and for being found in possession of unlicensed arms. He also admitted that criminal case was registered against his father and brother for committing murder of Radheyshyam Meghwal, but denied suggestion that criminal case was registered for beating Ram Babu and for theft against his brother Ram Narain Singh. Argument of learned counsel is that complainant and his sons were history sheeters and they were the aggressors and started incident. 5. Learned counsel referred to statement of Kali Bai (PW-22) and argued that she is a planted witness, yet she has been relied by the prosecution. Argument of learned counsel is that complainant and his sons were history sheeters and they were the aggressors and started incident. 5. Learned counsel referred to statement of Kali Bai (PW-22) and argued that she is a planted witness, yet she has been relied by the prosecution. It is argued that name of Kalyan for the first time figured in the supplementary statement of Manohar Singh recorded under Section 161 Cr.P.C. Learned counsel argued that there was no justification with the trial court for applying different yard stick for acquitting those who were allegedly armed with lathies and convicting those against whom allegations were for causing injuries by sword and chhurra. The trial court failed to consider that these allegations are result of subsequent improvements introduced by the prosecution witnesses in their statements before the trial court. Alternatively, learned counsel submitted that act of the accused-appellants can, at the maximum, bring the offence within the purview of Section 304 Part I, IPC, especially accused-appellant no. 1, Gopal and accused-appellant no. 2, Khadak Singh. They argued that name of accused-appellant no. 3, Kalyan, being introduced at later stage, he is entitled to benefit of doubt. Learned counsel in support of their arguments relied upon the judgments of the Supreme Court in Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614 ; Javed Masood and Another vs. State of Rajasthan, (2010) 3 SCC 538 and Suresh Sitaram Surve vs. State of Maharashtra, (2002) 10 SCC 28 . 6. Mr. R.S. Raghav, learned Public Prosecutor opposed the appeal and supported the judgment of the trial court. He referred to statements of prosecution witnesses and exhibits and submitted that the learned trial court has appreciated the evidence in correct way and recorded sound reasoning in support of findings of conviction of the accused-appellants, which do not call for any interference and the appeal be, therefore, dismissed. 7. We have given our anxious consideration to rival submissions and carefully perused the record of the trial court. 8. Particulars disclosed in the first information report (Exhibit P-7) by Shyam Manohar (PW-6) indicate that there were two incidents, which took place in the present case. First incident was when calf of complainant party was hit by vehicle driven by someone, who was resident of Kumbhcourt and that dispute did not reach the police and was compromised. 8. Particulars disclosed in the first information report (Exhibit P-7) by Shyam Manohar (PW-6) indicate that there were two incidents, which took place in the present case. First incident was when calf of complainant party was hit by vehicle driven by someone, who was resident of Kumbhcourt and that dispute did not reach the police and was compromised. But owing to that, certain altercation took place between Gopal Kumhar and his family members Ramesh, Phool Chand, Vinod and 2-3 other persons and the complainant. Allegation of the informant in FIR was that they all came there armed with lathies and swords and caused injuries to his younger brother Prahlad by sword, which he sustained on his right hand as a result of which, his elbow was cut. Ramesh and Phool Chand inflicted lathies blows to the informant, which he resisted on right hand wrist, back and calves of right leg. Gopal Kumhar dragged informant and his father on road. His further allegation was that all the accused with the intention to kill his father gave beating to him, which led to serious injuries on his head. He became unconscious. Then all the accused at the instigation of Gopal Kumhar subjected his father and younger brother Prahlad to beating. 9. When this witness (Shyam Manohar) appeared in the court as PW-6, complexion of his statement was changed and now he was attributing specific role to each accused. He stated that Gopal, Ramesh, Phool Chand, Khadak Singh, Vinod, Gopal Dhakad came there armed with sword, gandasi and lathies. Roop Chand and Kalyan also came with them. Gopal had sword; Kalyan had chhurra. It may be noted here that Kalyan was not named in the FIR. The further allegation in his statement in the court was that accused first of all gave beating to Prahlad and thereafter they gave beating to his father. When this witness went to save him, he too was given beating by Vinod and Roop Chand by lathies. Then he fled away from there. Involvement of Roop Chand and Vinod has not been found proved, therefore, the trial court acquitted them. This witness was subjected to intensive cross-examination wherein he stated that the police recorded his statement under Section 161 Cr.P.C. only once wherein he named only four accused and did not mention that the accused also had chhurra. Involvement of Roop Chand and Vinod has not been found proved, therefore, the trial court acquitted them. This witness was subjected to intensive cross-examination wherein he stated that the police recorded his statement under Section 161 Cr.P.C. only once wherein he named only four accused and did not mention that the accused also had chhurra. He could not explain why he did not mention in FIR (Exhibit P-7) that Gopal Kumhar had sword in his hand and that he started beating Prahlad first of all. Shyam Manohar (PW-6) rather stated that he was quite perturbed and because of that reason, he did not mention in FIR as to which accused caused injuries to his father by use of which weapon. He admitted that his father was accused in a murder case and that criminal case was registered against the informant and his brother for beating Radheyshyam. Another criminal case was registered against him and his brother for beating Ram Babu Dhobi. He also admitted that criminal case was registered against this witness and his family members for beating Balram Meghwal. He could not deny the fact that neither in FIR (Exhibit P-7) nor in his statement recorded by the police (Exhibit D-1), name of Khadak Singh and Gopal Kumhar was mentioned. 10. Another witness relied by the trial court is brother of the informant, Prahlad Singh (PW-14), who was injured. He has stated that after their dispute with the truck driver for hitting calf was settled, Gopal Kumhar, who was present there, continued to abuse them. Thereafter, at the askance of one Jony Bhai, they went away. After one hour, Gopal Kumhar, Ramesh Kumhar, Phool Chand, Roop Chand, Kalyan Dhakad, Jagdish and certain other persons came there. Gopal Kumhar had sword; Kalyan Dhakad had chhurra and others had lathies. They started beating his father, who was sitting on chabutara. Gopal Kumhar inflicted sword blow on the neck of his father and Khadak Singh inflicted sword blow on the head of his father. Other accused also started beating him. When he tried to intervene and save him, Kalyan Dhakad inflicted a chhurra blow on his right hand. He then stated that Kalyan, Gopal caused injuries to him by sharp edged weapon and other injuries by lathies. Phool Chand, Vinod, Ramesh and Roop Chand caused injuries to him and his brother Shyam Manohar by lathies. When he tried to intervene and save him, Kalyan Dhakad inflicted a chhurra blow on his right hand. He then stated that Kalyan, Gopal caused injuries to him by sharp edged weapon and other injuries by lathies. Phool Chand, Vinod, Ramesh and Roop Chand caused injuries to him and his brother Shyam Manohar by lathies. He admitted that criminal case was registered against Narain Singh for selling CDs of blue films and for being found in possession of unlicensed arms. He also admitted that criminal case was registered against his father and brother for committing murder of Radheyshyam Meghwal, but denied suggestion that criminal case was registered for beating Ram Babu and for theft against his brother Ram Narain Singh. He admitted that criminal case was pending against him for breaking compressor in the Special Court of SC/ST (Prevention of Atrocities) in which Kalyan had deposed against him and his brother. He gave names of all such persons who gave beatings to them whereas many more names were added by the witnesses in their court statements than those disclosed in the first information report. In cross-examination, he admitted that Gopal Kumhar was running a tea stall at Amarpura Road Crossing. Roop Chand was a barber and running a cutting saloon. Ramesh, Vinod and Phool Chand were also residents of Amarpura. Vinod was ‘munshi’ who was employed in the factory of Gulshan Bai. 11. Kali Bai (PW-22) has stated that Kalyan had chhurra; Gopal had sword and Khadak Singh also had chhurra. Kalyan caused injuries by chhurra to Prahlad on his hand and head. Khadak Singh and Gopal both inflicted injuries on head of Khuman Singh. They also gave injuries to Manohar Singh. But then, this witness stated that apart from her, no other witness had seen the incident. She failed to explain why in her police statement (Exhibit D-3) she did not name Kalyan and Khadak Singh as accused and why she did not allege in that statement that Kalyan had chhurra. She cannot be accepted as eye witness in the light of her cross-examination where she stated that she was sitting inside her house with wife of younger brother of her husband. In cross-examination she admitted that a criminal case was registered against her husband and deceased, father-in-law for murder in which they were acquitted and owing to this fact, accused were having enmity with them. In cross-examination she admitted that a criminal case was registered against her husband and deceased, father-in-law for murder in which they were acquitted and owing to this fact, accused were having enmity with them. She stated that all this was narrated to the police, but probably they could not understand her dialect. 12. Surendra Kumar (PW-26), investigating officer has admitted in cross-examination that in FIR (Exhibit P-7), Gopal Dhakad and Khadak Singh were not named as accused and he also admitted that he recorded statement of informant Shyam Manohar on 11.06.2004 itself in which he did not name either of them. He also admitted that weapons were recovered at the instance of Gopal and Khadak Singh from the open place. He has proved recovery of sword at the instance of accused Gopal vide Exhibit P-17 from the ‘kothari’ adjacent to their joint well in the agricultural well. As per the recovery memo, it was containing blood stains. Another sword has been recovered at the instance of Khadak Singh vide Exhibit P-21 which also contained blood stains. Information was given about the aforesaid recoveries by accused Gopal and Khadak Singh vide Exhibit P-36 and P-37 respectively. Information under Section 27 of the Evidence Act was also given by Kalyan to get chhurra recovered vide Exhibit P- 39 and at his instance, chhurra was recovered vide Exhibit P-19. Janki Lal (PW-17) and Ummed (PW-20) attesting witnesses of these recoveries were declared hostile, but despite that, we cannot completely discard the case of the prosecution and yet have to scrutinize the evidence to find out whether or not accused-appellants have rightly been convicted for the alleged offences or not. While blood could not be detected on one of the swords, blood stains found on another sword were not sufficient to determine its origin. chhurra did not have any blood stains. Blood group could be determined only in respect of the stains found on clothes of the deceased. FSL Report (Exhibit P-42), therefore, does not throw much light on the controversy. Even then, analysis of the evidence of prosecution viz-a-viz earliest stand taken by the prosecution witnesses in FIR and their police statements indicate that two swords were actually used in the crime. FSL Report (Exhibit P-42), therefore, does not throw much light on the controversy. Even then, analysis of the evidence of prosecution viz-a-viz earliest stand taken by the prosecution witnesses in FIR and their police statements indicate that two swords were actually used in the crime. It is evident that while Gopal Kumhar was specifically named in the FIR as well as in the police statement of the informant (Exhibit D-1) recorded on 11.06.2004, however, when his supplementary statement was recorded by second investigating officer on 05.07.2004 (Exhibit D-2), he named Kalyan, with which he was confronted during his statement in the court and he could not deny the fact that he later on named Kalyan on allegation of causing injuries by chhurra and Khadak Singh on allegation of causing injuries by sword. Even Kali Bai (PW-22), who has been cited as eye witness by the prosecution could not explain why did she not name Khadak Singh and Kalyan and named only Gopal Kumhar. 13. Narain Singh (PW-3) is not an eye witness, but in court statement he has stated that when he met his father in the hospital, he told that Gopal Kumhar, Kalyan Dhakad etc. had subjected him to beating. His police statement is Exhibit D-1. He too was confronted with Exhibit D-1, which was recorded belatedly on 27.06.2004, in which he named only Gopal Kumhar and did not at all name others. Though this witness has not been claimed to be eye witness, but when he was confronted with his police statement, he could not explain why did he not mention therein that his father told him names of the accused as Gopal Kumhar and Kalyan Dhakad. It is, thus, evident that so far as Khadak Singh and Kalyan are concerned, their names appear to have been added subsequently only with a view to increase the number of accused and falsely implicate as many persons as accused and that is why, six accused were acquitted by the learned trial court and a case is made out for extending benefit of doubt to Khadak Singh and Kalyan Singh. 14. 14. Coming now to alternative argument of learned counsels of the appellants that looking to the nature of injuries that have been caused to the deceased and the manner in which the incident had taken place and the fact that the deceased and his sons were history sheeters and many cases were registered against them, complainant party should be deemed to be aggressors and the offence in the present case could have fallen within the purview of Section 304 Part I IPC, consistent with our finding that role of Gopal Kumhar has only been proved for causing injuries on the person of the deceased by sword, we find that post mortem report (Exhibit P-4) of the deceased has been proved by Dr. G.S. Vishnaar (PW-19), according to which deceased had following 17 injuries: "(1) Stitched wd. (17 stitches) ---- shaped 13” long on Rt Parietooccipetal to extending upto Lt side back of neck. (2) Stitched wd (7 stitches) elliptical shape ---- 4” long on Lt Parieto-Temporal reg. (3) Incised wd 1/2” x 1/8” x BD Tr. on under the Lt ear lobule. (4) Abrasion 3” x 1/8” Tr infront of Rt ear on maller reg. (5) Stitched wd. 3” long (3 stitches) ---- just touching peek of injury no. 1 on Lt Parietal reg obliquely placed posteriorly. (6) Four scratches 3” to 4” long back of Lt shoulder at places in different directions. (7) Scratces Tr. 4” long back of Rt shoulder. (8) Stitches wd 6 1/2” long (7 stitches) tr. on Lt scapular reg. (9) Two scratches 2” to 3” long ob lateral aspect of Lt shoulder. (10) Abrasion 2” x 1” Tr LT maller reg. (11) Two abrasions 1” x 1/8” Tr. Lt Arm U ½ laterally 1½” apart from each other. (12) Incised wd 1” x ¼” x bm ob Medial aspect of Lt elbow. (13) Abrasion 1 ½” x ¼” ob back of Lt forearm M 1/3. (14) Incised wd 2 1/2” x 1/4" x BD Tr. back of Rt elbow. (15) Abrasion 2” x ¼” ob Rt lateral aspect of chest L 1/3. (16) Abrasion 2” x 1/8” Ob Lt lateral aspect of chest U 1/3. (17) Abrasion 3” x ¼” Ob Lt lateral aspect of Chest M 1/3.” 15. (14) Incised wd 2 1/2” x 1/4" x BD Tr. back of Rt elbow. (15) Abrasion 2” x ¼” ob Rt lateral aspect of chest L 1/3. (16) Abrasion 2” x 1/8” Ob Lt lateral aspect of chest U 1/3. (17) Abrasion 3” x ¼” Ob Lt lateral aspect of Chest M 1/3.” 15. The deceased though sustained number of injuries as would be seen from aforesaid, but as per Post Mortem Report (Exhibit P-4), cause of death was opined to be shock brought about as a result of laceration of lungs (relatable to Injury No. 17) and other injuries associated with excessive hemorrhage as mentioned in the report, sufficient to cause death in ordinary course of nature. Dr. G.S. Vishnaar (PW-19) has stated that there was fracture of parietal bone of the deceased as a result of injury no. 5 and also fracture of 6th rib of left side causing rupture of lungs and left plura. Owing to injury no. 17, rupture of lungs and left plura and other injuries caused to the deceased, we are not persuaded to uphold the argument advanced by learned counsels for the accused-appellant to bring the present case within the purview of Section 304 Part I, IPC. Although, it is another matter that liability of other accused could not be fixed. Judgments cited on behalf of the accused-appellants are distinguishable on the facts of the present case and are of no help to the accused-appellants. 16. In view of above discussion, present appeal qua accused-appellant no. 1, Gopal son of Mangi Lal is dismissed. His conviction and sentence awarded by the trial court is affirmed. However, present appeal qua accused-appellants no. 2 and 3, Khadak Singh and Kalyan is allowed. Conviction and sentence awarded to them by the trial court is set aside. Accused-appellant no. 2, Khadak Singh, who is in jail, be set at liberty forthwith, if not required to be detained in any other case. However, accused-appellant no. 3, Kalyan is on bail. He need not surrender and his bail bonds stand discharged. 17. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely, Khadak Singh and Kalyan are directed to forthwith furnish a personal bond in the sum of Rs. However, accused-appellant no. 3, Kalyan is on bail. He need not surrender and his bail bonds stand discharged. 17. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants, namely, Khadak Singh and Kalyan are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, each of them, on receipt of notice thereof, shall appear before the Supreme Court.