JUDGMENT : Mr. Kailash Chandra Sharma, J. 1. The instant criminal appeal has been filed by the accused appellants under Section 374 (2) Cr.P.C. assailing the validity of judgment dated 20th of June, 2009 passed by learned Addl. Sessions Judge (Fast Track) No.1, Bhilwara (for brevity, hereinafter referred to as ‘trial court’) in Session Case No.74/2007, by which the learned trial court convicted the accused appellants for the offences under Sections 302, 302/1479, 323/149, 324/149 and 148 of IPC and passed following sentenced against them: Mohammed Hussain and Farookh: 302 of IPC: Life Imprisonment with a fine of Rs.10000/-, in default of payment of fine, to further undergo six months’ R.I. Abdul Sattar and Hussain Khan: 302/149 of IPC: Life Imprisonment with a fine of Rs.10000/-, in default of payment of fine, to further undergo six months’ R.I. Sentence for all the accused: 323/149 of IPC: One Year’s rigorous imprisonment along with fine of Rs.1000/-, in default of payment of fine, to further undergo one month’s R.I. 324/149 of IPC: Two Years’ rigorous imprisonment along with fine of Rs.1000/-, in default of payment of fine, to further undergo one month’s R.I. 148 of IPC: Two Years’ rigorous imprisonment along with fine of Rs.3000/-, in default of payment of fine, to further undergo three months’ R.I. 2. Brief stated, the facts of the case are that on 26.07.2007, complainant, Mohd. Ayyub (PW.17), submitted a written report (Ex.P/29) to the S.H.O., Police Station Pratap Nagar, alleging therein that in the morning at around 07.30 AM, accused persons, namely, Sattar Mohammed, Hussain Khan, Mohammed Hussain, Bahadur Khan and Farookh came to Imambada, where Aziz Khan (deceased) was smoking cigarette, accused Sattar and Hussain Khan caught hold the deceased and accused, namely, Farookh Mohammed inflicted a blow by sword in the abdomen of the deceased. Other accused Sattar inflicted ‘Lathi’ blow on the head of deceased Aziz, and thereafter all the accused persons gave beating to the deceased, when complainant tried to rescue, he too was assaulted and he sustained injuries on his head. Both the injured were taken for treatment, where Aziz succumbed to the injuries. 3. The aforesaid written complaint (Ex.P/29) was submitted at Police Station Pratap Nagar, Camp M.G. Hospital at 11.00 AM on 26.07.2007. Upon that FIR No.399/2007 (Ex.P/48) was registered on 26.07.2007 under Sections 147, 148, 149, 341, 307, 323 and 302 of IPC. 4. Both the injured were taken for treatment, where Aziz succumbed to the injuries. 3. The aforesaid written complaint (Ex.P/29) was submitted at Police Station Pratap Nagar, Camp M.G. Hospital at 11.00 AM on 26.07.2007. Upon that FIR No.399/2007 (Ex.P/48) was registered on 26.07.2007 under Sections 147, 148, 149, 341, 307, 323 and 302 of IPC. 4. After registration of the FIR, investigation was commenced and the accused appellants were arrested and after completion of investigation, the S.H.O., Police Station Pratap Nagar, filed charge sheet against the accused appellant for the offence mentioned above. 5. During trial, accused, Bahadur Khan passed away, therefore, proceedings qua him, were dropped and the case was committed to the court of Sessions Judge for trial. The learned Sessions Judge transferred the case for trial to the court of Addl. Sessions Judge (FT) No.1, Bhilwara. 6. In the trial, statements of as many as 30 prosecution witnesses were recorded and number of documents and articles were exhibited from the prosecution side. After recording the evidence of prosecution, explanation of the accused appellants was recorded u/s 313 of Cr.P.C., wherein they pleaded their innocence but did not produce any evidence in defence. 7. The learned trial court after evaluating the evidence and after hearing final arguments of both the parties, convicted the accused appellants for the offence for committing murder of Aziz Khan and causing injuries to number of injured and passed sentence vide judgment dated 20.06.2009, which is under challenge in this appeal. 8. Learned counsel for the accused appellants vehemently argued that finding arrived at by the learned trial court holding the accused appellant guilty for the offence of murder is contrary to law and perverse to the material evidence available on record, the trial court has failed to appreciate the correct legal and factual aspect of the matter and thus committed a grave error of law while passing the judgment impugned. It is also argued that prosecution has miserably failed to prove its case beyond reasonable doubt because there are grave discrepancies, infirmities and major contradictions in the statements of prosecution witnesses. The improvement and exaggerations made by the prosecution witnesses goes to the root of the case and a cloud of suspicion arises in the story narrated by the prosecution witnesses. The improvement and exaggerations made by the prosecution witnesses goes to the root of the case and a cloud of suspicion arises in the story narrated by the prosecution witnesses. It is also submitted that the genesis of the occurrence had been suppressed by the partisan witnesses with an ulterior motive and to see the accused be punished. Further, there is not an iota of evidence to show that why and how the incident taken place. 9. While inviting our attention towards site memo (Ex.P/12) along with other oral evidence, it is submitted that incident taken place outside the house of Bahadur Khan (one of the accused person, who expired) and as per evidence on record, late Bahadur Khan was sitting on the ‘Chabutra’ of his house, where Aziz Khan (deceased) came there and some hot altercation exchange between Bahadur Khan and the deceased, thereafter upon hearing the commotion members of complainant party rushed to the spot and in the incident, deceased Aziz Khan sustained injuries and later on succumbed to the injuries. None of the eye witnesses deposed the true version of the incident, therefore, they do not inspire any confidence and, therefore, their testimony cannot be relied upon to sustain the finding of conviction. 10. Without prejudice to the above argument, it is submitted that even if the testimony of so-called eye witness is taken on its face value, then also, it do not bring the case within the ambit of Section 149 of IPC. The prosecution has failed to establish the fact that appellants formed an unlawful assembly and they had a common object to kill the deceased. While inviting our attention towards the statements of eye witnesses, namely, PW.17 Mohammed Ayyub, PW.18 Mohammed Hussain, PW.19 Gani Mohammed, PW.20 Mohammed Haroon, PW.23- Riyaz, and PW.24 Mehraj Ali, learned counsel for the appellants submitted that there are major contradictions in their statements . PW.18, Mohammed Hussainand PW.23 Riyaz stated before the court that only four persons were present and if it is so, provisions of Sections 147, 148 and 149 of IPC do not arise. Learned counsel for the accused appellants vehemently argued that as per evidence on record, the incident allegedly taken place in a spur of moment suddenly without pre-meditation, without pre-concert and without pre-arranged plan. Learned counsel for the accused appellants vehemently argued that as per evidence on record, the incident allegedly taken place in a spur of moment suddenly without pre-meditation, without pre-concert and without pre-arranged plan. The learned counsel for the accused appellants submitted that finding of learned trial court for conviction u/s 302 and 302/149 of IPC is totally erroneous. 11. As per submission of learned counsel for the accused appellants complainant party along with deceased came to the house of accused party and assaulted them, therefore, and in the course of self-defence/protection, sustained injuries by their own weapon, as such the learned trial court has erred in passing the judgment impugned. While inviting attention towards injury sustained to the accused persons, it is submitted that there is no explanation of the prosecution for the injuries caused to the accused party, therefore, the entire evidence become doubtful. 12. The alleged recovery and FSL report do not connect the accused appellants with the crime because the result of FSL was inconclusive in respect of blood stained articles. It is also pointed out that independent witnesses are not produced before the court to prove the prosecution case, the entire case is based upon the testimony of highly interested and relatives witnesses, therefore, they lost their credence and no reliance can be placed on their testimony. 13. Lastly, it is argued that even if the prosecution story is accepted, then also, the offence does not travel beyond offence under Section 304 Part I of IPC because accused party was aggressor, therefore, the finding of guilt recorded by the learned trial court for the offence under Section 302 of IPC and 302/149 of IPC is not sustainable in law. Therefore, the judgment impugned may kindly be quashed and set aside. 14. Per contra, learned Public Prosecutor vehemently opposed the submissions made by the learned counsel for the appellants and submitted that incident took place on 26.07.2007 at about 07.30 AM, at Khel Mohalla, Pur, Bhilwara. All the accused appellants with an intention to kill Aziz Khan, caused injuries to other injured persons came on the spot, which resulted into death of one Aziz Khan S/o Mishri Khan, so also, injuries were caused to complainant, Mohd. Ayyub, Mehraj Ali, Riyaz Mohd and Gunni Mohd. All the accused appellants with an intention to kill Aziz Khan, caused injuries to other injured persons came on the spot, which resulted into death of one Aziz Khan S/o Mishri Khan, so also, injuries were caused to complainant, Mohd. Ayyub, Mehraj Ali, Riyaz Mohd and Gunni Mohd. The prosecution led trustworthy evidence to prove the incident, therefore, there is no question to disturb the finding of guilt arrived at by the learned trial court, for which accused appellants were held guilty for the offences u/s 302 and 302/149 of IPC along with other offences viz. 323/149 and 324/149 and 148 of IPC. 15. Learned Public Prosecutor further argued that ingredients for offence under Section 302 IPC are in existence and while considering the evidence of prosecution, the trial court has rightly held the accused appellant guilty for offence of murder. Therefore, the instant appeal may kindly be dismissed. 16. After hearing the learned counsel for the parties, we have perused the entire evidence so also finding given by the learned trial court. 17. To prove the case of prospection, statements of 30 prosecution witnesses were recorded by the learned trial court. On the basis of a written complaint (Ex.P/29) submitted by complainant, Mohd. Ayyub (PW.17), formal FIR No.399/2007 was registered on 26.07.2007 at Police Station Pratap Nagar, Bhilwara against the appellant for the offences under Section 147, 148, 149, 341, 307, 323 and 302 of IPC. 18. During trial, statements of witness PW.17- Mohd. Ayyub were recorded, in which he has specifically stated that in the morning of 26.07.2007, when he was cleaning ‘Imambada’ situated at Khel Mohalla, Pur, at that time, outside the ‘Imambada’, a quarrel took place in between deceased, Aziz Khan and accused appellants, Sattar Khan, Hussain Khan, Mohd. Hussain, Rafookh Mohd. and Bahadur Khan. According to statements of Mohd. Ayyub (PW.17) when he came out from the ‘Imambada’, he saw that all the accused persons were causing injuries to Aziz Khan and when he went there for rescue, Bahadur Khan who was having a ‘Lathi’, and accused, Farookh was having a sword and they were causing injuries. When he (complaint) tried to intervene, he too was inflicted injury on his head by Farookh with sword and on his right hand. I was taken to hospital, where I was examined by the doctor and x-ray was also conducted. When he (complaint) tried to intervene, he too was inflicted injury on his head by Farookh with sword and on his right hand. I was taken to hospital, where I was examined by the doctor and x-ray was also conducted. It is specifically stated by this witness that no such allegations were levelled by him against Farookh for inflicting injury by sword to the deceased but allegation was levelled to cause injuries by all the accused appellants. I was taken to hospital, where I was examined by the doctor and x-ray was also conducted. It is specifically stated by this witness that no such allegations were levelled by him against Farookh for inflicting injury by sword to the deceased but allegation was levelled to cause injuries by all the accused appellants. The following statement was given by PW.17 which reads as under: - ^^fnukad 26-07-2007 dh ckr gSA lqcg lkr lk<+s lkr cts esa bekeckM+s esa lQkbZ dj jgk FkkA tks bekeckM+k [ksy ekSgYyk iqj esa gSaA eSa vanj dpjk fudky jgk FkkA ckgj vtht [kka o buds >xM+k py jgk Fkk tks vtht [kka ds lkFk lrkj [kka] gqlSu [kka] eksgEen gqlSu] Qk:[k eksg0 o cknqj [kka ekjihV dj jgs FksA eSa vnj ls ckgj vk;k rks ;s ekjihV dj jgs FksA eSa Hkh ogka mudks chp cpko djus x;k cknqj [kka ds ikl yB Fkh oks yB ls ekj jgs Fks Qk:[k eksgEen ds gkFk esa ryokj Fkh tks ekjihV dj jgk FkkA eSa chp cpko esa x;k rks Qk:[k eksg0 us esjs flj ij o nk;sa gkFk ij ryokj dh pksV ekjhA ftlls eSa ?kk;y gks x;k o esjs pDdj vkus yxsA fQj eq>s gkWLihVy ys x;sA gkWLihVy esa MkWDVj us ejh MkWDVjh eqvk;uk fd;k o eq>s vLirky esa HkrhZ fd;k o ,Dljs djk;k ogka vLirky esa iqfyl vkbZA fQj esjs ikl feyus okyk Fkk ftlus fjiksVZ fy[kh tks eSaus crk;k ogh mlus fjiksVZ fy[khA eSaus gkWLihVy esa fjiksVZ nh tks izn’kZ ih0 29 gSA ftl fjiksVZ ij , ls ch esjs gLrk{kj gSA o dk;Zokgh iqfyl ij Hkh , ls ch esjs gLrk{kj gSA esjs igus gq, diM+s iqfyl us gkWLihVy esa fy;s FksA diM+s cfu;ku] cq’kVZ o ywaxh iqfyl us yhA cfu;ku o cq’kVZ o ywaxh ij esjs [kwu yxs FksA iqfyl us mu diM+ksa dks FkSyh esa iSd dj fn;k o fy[kk i<+h dj esjs nLr[kr djk;s o fly yxkbZA ftldh tCrh izn’kZ ih0 3 gS ij b ls ,Q esjs gLrk{kj gSA esjs pksV izfroknh izn’kZ ih0 22 ij ls Mh esjs gLrk{kj gSA vtht [kka ds lkFk bu yksxksa us ekjihV dh mldh vkars dVus ls ekSr gks xbZA vtht [kka ds lkFk bu yksxksa us ekjihV dh mldh vkars dVus ls ekSr gks xbZA mlds dgka dgka yxh ;s vkt eq>s ekywe ugha D;ksafd esjs yx pqdh Fkh o eSa ?kk;y gks x;k FkkA eSa lHkh ekjihV djus okys eqyfteksa dks ns[k dj igpku ldrk gwWaA pkjksa gkftj vnkyr eqyfteksa dks ns[k xokg us crk;k fd ;s gh ekjihV djus esa Fks o Qk:[k ds gkFk esa ryokj gksuk crk;kA iqfyl us gkWLihVy esa esjs c;ku Hkh fy;s FksA Lis0 ih0ih0 us xokg dks duQzaV djkus dh vuqefr pkgh tks nh duQzaV& eSaus Qk:[k ds gkFk esa ryokj gksuk fy[kk;kA eSaus Qk:[k us ryokj ls e`rd vtht [kka ds isV o flj ij ekjus dh ckr iqfyl c;ku ugha ugha fy[kkbZA^^ 19. It is very strange that in the FIR filed by this witness, specific allegation was levelled by him against accused appellant, Farookh Khan, for inflicting injury by a sword in the abdomen of the deceased but in the court specifically denied the allegation for inflicting injury by accused appellant, Farookh to the deceased by sword. In the cross-examination, it is specifically stated by this witness that FIR was not written by the police and some other person wrote the FIR. The following statement is given by the said witness in the cross-examination, which reads as under: - ^^,DthchV ih0 29 fjiksVZ iqfyl us ugha fy[kh fdlh nwljs ls fy[kkbZ FkhA fjiksVZ izn’kZ ih0 29 gkWLihVy esa fy[kk ;s fy[kh ml oDr iqfyl vk pqdh FkhA lRrkj [kka ds ekSds ij ekjihV esa yxh oks eq>s irk ughaA ,DthchV ih0 29 dks , ls ch Hkkx eSaus ugha fy[kk;k FkkA eSaus fy[kk;k Fkk fd lRrkj eksg0 o gqlSu [kka us vtht [kka dks idM+ fy;k o ekjihV gks jgh FkhA dc fdlus dgka ij ekjh eq>s irk ughaA^^ 20. Other witnesses, viz. PW. 18 Mohd. Hussain, PW.19 Ganni Mohd., PW.20 Mohd. Haroon, PW.23 Mohd. Riyaz and PW.24 Mehraj Ali, are the injured eye witnesses, all these witnesses categorically stated before the court that the incident occurred on 26.07.2007 at about 07.30 AM and all the accused appellant along with Bahadur Khan, who died during trial, assaulted them and caused injuries to deceased, Aziz Khan. 21. The dead body of deceased was subjected to postmortem by the Medical Board, consisting of PW.16 Dr. V.D. Sharma, PW.22 Dr. Ashok Mittal and PW.25, Ajay Narayan Mathur. The postmortem report (Ex.P/25) was given by the Medical Board, in which opinion for cause of death was ante mortem stab wound on chest, abdomen, head, brain and those injuries were sufficient to cause death in ordinary course of nature. In all four injuries are mentioned in the postmortem report. Likewise other injured eye witnesses were medically examined in the hospital by the Medical Jurist, Dr. V.D. Sharma (PW.16). 22. We have perused the statement of PW.16, Dr. In all four injuries are mentioned in the postmortem report. Likewise other injured eye witnesses were medically examined in the hospital by the Medical Jurist, Dr. V.D. Sharma (PW.16). 22. We have perused the statement of PW.16, Dr. V.D. Sharma, Medical Jurist of M.G. Hospital, Bhilwara, who has categorically stated in his statement that on 26.07.2007 when he was posted at M.G. Hospital and upon the request made by the police, injured Ayyub Khan was examined and injury report (Ex.P/22) was issued by him, in which two injuries were found on the body of Ayyub. Similarly, on the same day, upon request of police, injured Mehraj Ali was also examined by him and one injury was found upon his body, which was mentioned in injury report (Ex.P/24) prepared by him. On the same day, at 06.30 PM, injured Riyaz was also medically examined by him and after examination of his body, two injuries were found upon his body, for which injury report (Ex.P/25) was prepared. At 6.15 PM on the same day another injured, Ganni Mohd. was examined and vide injury report (Ex.P/26) it was reported that two injuries were found upon his body. 23. Upon consideration of statements of medical jurist, Dr. V.D. Sharma, we are of the opinion that presence of injured eye witness is not in dispute. Similarly, by medical evidence, the prosecution has proved the fact that on account of injuries caused to person of deceased on his abdomen by Farookh by a sword, he died. Meaning thereby, the prosecution has proved its case beyond reasonable doubt with regard to incident on 26.07.2007 in which all the accused actively participated and inflicted injuries by weapons. 24. After arrest, the weapons and articles were recovered as per information given by the accused appellants and same were sent for chemical examination to the FSL. The description of articles as well as report of the FSL reads as under: Description of Articles S. No. Packet Marked Exhibit No. Details of Exhibit. 1. 1 1 Bushirt - - 2 Baniyan - - 3 Lungi 2. 2 4 Bushirt - - 5 Baniyan 3. A 6 Blood smeared soil 4. A1 7 Control soil 5. B 8 Blood Swab 6. C 9 Pieces of haris 7. D 10 Blood smeared soil 8. D1 11 Control soil 9. E 12 Apair of chappl 10. E1 13 A pair of chappl 11. 2 4 Bushirt - - 5 Baniyan 3. A 6 Blood smeared soil 4. A1 7 Control soil 5. B 8 Blood Swab 6. C 9 Pieces of haris 7. D 10 Blood smeared soil 8. D1 11 Control soil 9. E 12 Apair of chappl 10. E1 13 A pair of chappl 11. F 14 Lakari 12. G 15 Lakari 13. H 16 Talwar 14. I 17 Lakari 15. J 18 Katar Results of Examination 1. On serological examination, the blood stains on the following exhibits were found to be of HUMAN origin:- Exhibit Nos. 1, 2, 3 (From A), 4, 5 (From 2), 6 (From A), 8 (From B), 9 (From C), 10 (From D) and 176 (From H) 2. Blood could not be detected in the following exhibits: Exhibit No.12 (From E), 13 (From E1), 14 (From F), 15 (From G), 17 (From I) and 15 (From J). 3. The origin of the stains on exhibits noted below could not be determined for the reason stated: - Nil Report on Blood Group 4. The following exhibits were found to be stained with … group blood - Nil 5. The blood group of the stains on the exhibits noted below could not be determined for the reason stated- Exhibit Nos. 1, 2, 3 (From A), 4, 5 (From 2), 6 (From A), 8 (From B), 9 (From C), 10 (From D) and 176 (From H) : Result remained inclusive. Sd/- (Dr. S.S. Daga) Asstt. Director (Serology)" 25. Upon perusal of the FSL report, it is true that no blood group was reported by the FSL but upon weapon ‘Lathi’ and ‘Katar’ and upon the pair of sleepers, so also, on the soil collected from the place of occurrence human blood was found. Sd/- (Dr. S.S. Daga) Asstt. Director (Serology)" 25. Upon perusal of the FSL report, it is true that no blood group was reported by the FSL but upon weapon ‘Lathi’ and ‘Katar’ and upon the pair of sleepers, so also, on the soil collected from the place of occurrence human blood was found. Upon consideration of the entire evidence, we are of the opinion that the prosecution has proved its case beyond reasonable doubt by leading evidence of injured eye witnesses, so also, investigating officer (PW.29) Shabbir Khan, who categorically stated that entire investigation was conducted by him, therefore, in our opinion when the prosecution case is based upon the testimony of injured eye witnesses and the injuries and reported in the injury report as well as postmortem report of Aziz Khan, which is very serious in nature, it cannot be said that finding arrived at by the trial court so as to hold accused appellants guilty for the offence under Section 302 and 302/149 of IPC is perverse or illegal. More so, it is a case in which all the accused appellant went on the spot lashed with deadly weapons and caused death of Aziz Khan and inflicted injuries to all injured persons, namely, complainant, Mohd. Ayyub, Mehraj Ali, Riyaz Mohd and Gunni Mohd. All the categorically stated and proved the incident as well as participation of all the accused appellants. 26. Admittedly, the allegation of the prosecution for participation of more than five persons in the incident and their participation with accused, Bahadur Khan, who died during trial is proved, therefore, it cannot be said that prosecution has failed to prove its case for participation of the accused appellants in the incident. The story and the facts narrated by the injured eye witnesses are corroborated by the medical evidence, so also, the investigating officer. The recoveries of weapon are proved by the prosecution witnesses and as per FSL report human blood was found upon most of the weapon including sword, therefore, there is no reason to disbelieve the evidence of prosecution so as to disturb the finding of learned trial court. 27. In our opinion, the intention can be gathered from the fact and nature of injuries and weapon used by the accused appellants. 27. In our opinion, the intention can be gathered from the fact and nature of injuries and weapon used by the accused appellants. We have also considered the argument of learned counsel for the appellants that offence cannot travel beyond Section 304 Part I of IPC, but there is no evidence on record that incident took place all of sudden or there was no pre-meditation more so, there is evidence on record to prove that all the accused participated in the incident and inflicted injuries to the deceased as well as to other eye witnesses, which is corroborated by the medical evidence. Therefore, no case is made for interference in the judgment impugned. Consequently, the instant appeal filed by the accused appellants is hereby dismissed.