JUDGMENT : (Delivered by Hon. Bharat Bhushan, J ) 1. The appellants namely Kashmira, Lakshmi Chand, Shiv Kumar and Shiv Dutt have assailed the judgment and order dated 26.11.1982 passed by 2nd Addl. Sessions Judge, Muzaffarnagar in Sessions Trial No. 133 of 1980 (State Vs Kashmira and others) arising out of Crime No. 138 of 1980, Police Station Budhana, District Muzaffarnagar, whereby all the appellants have been convicted under Sections 323/34, 324/34, 307/34 and 302/34 IPC and sentenced each of them to 1 year rigorous imprisonment, 2 years rigorous imprisonment, 8 years rigorous imprisonment and imprisonment for life respectively. All the sentences were directed to run concurrently. 2. The appellant Kashmira has died, therefore, his appeal stands abated vide order dated 22.5.2012 passed by coordinate bench of this court. Similarly, appellant no. 4 Shiv Dutt was adjudged juvenile pursuant to the enquiry report dated 19.2.2015 passed by District Court, Muzaffarnagar. This court is now concerned with the appeals of appellant no. 2 Lakshmi Chand, appellant no. 3 Shiv Kumar and appellant no. 4 Shiv Dutt (juvenile). 3. Prosecution story in brief is that on 15.4.1980 at about 10.30-10.45 a.m., late accused Kashmira was taking his bullocks back to his compound (Gher) after providing drinking water to them from village pond. Suddenly two bullocks of accused Kashmira entered the compound of informant Banarasi (P.W.-1) and started eating the green 'Barseem' fodder lying near his fodder machine. Informant Banarasi, his wife Ram Katori and his son deceased Prem Pal were sitting inside the compound. Deceased Prem Pal drove away the bullocks of accused Kashmira after prodding them with lathi. This enraged Kashmira, who started abusing Prem Pal. Informant Banarasi and his son deceased Prem Pal asked Kashmira to refrain from abusing them and also asked him to control his bullocks properly. Kashmira left the place fuming. He threatened to teach them a lesson and went to his compound. After some time Late Kashmira armed with Lathi, his sons Lakshmi Chand armed with iron rod, Shiv Kumar and Shiv Dutt armed with knives arrived at the residence of informant Banarasi (P.W-1) and started abusing them again. This commotion brought Omveer (P.W-2), injured Rajendra, witness Mantoori (P.W-3), Mitrapal and Jugal Singh etc. to place of occurrence. All of them tried to reason with accused persons but of no avail. This commotion brought Omveer (P.W-2), injured Rajendra, witness Mantoori (P.W-3), Mitrapal and Jugal Singh etc. to place of occurrence. All of them tried to reason with accused persons but of no avail. They started and then kept on beating deceased Prem Pal and when Rajendra and Omveer tried to rescue him, they were also assaulted by the assailants. Banarasi, the informant (P.W.-1), his wife (mother of deceased) Omveer (P.W.) and Rajendra challenged the assailants, whereupon all the assailants fled towards their own house. 4. This attack resulted in serious injuries on the person of Prem Pal, Rajendra and Omveer. Thigh of Prem Pal was cut and blood started flowing out of that wound. Pyjamas of Prem Pal (deceased) was tied around this wound. All the injured were put in Tractor Trolly and taken to Govt Hospital, Budhana where they were medically examined by P.W.-6 Dr Ajeet Singh, the then Medical Officer of Primary Health Centre (PHC), District Muzaffarnagar. Injured Rajendra was examined at about 11.55 and following injuries were noted on his person:- (I) Lacerated wound 1-3/4" x 1/10" x muscle deep x oblique over the left side of top of skull 2" from mid line and 4-1/2' from left eye brow. Rugged margins. Fresh bleeding present. (II) Incised wound ¾" x 1/4" x bone deep x oblique over the middle third right clavicle, sharp margins. Bleeding present probe going outwards and upwards upto 1/2". (III) Incised wound 3/4" x 1/4" x oblique on left side of chest probe going medially and upwards up to 1-1/2" Sharp margins. Bleeding present. Injury is 4" below left nipple. 5. Injured Omveer was also examined on the same day and following injuries were found on his person:- (I) Lacerated wound 2" x 1/4" x muscle deep x oblique on left side of skull 2" from the mid line and 3 " from left ear top and 4 " from the left eye brows rugged margins and fresh bleeding present. (II) Lacerated wound 2" x 1/2" x muscle deep x oblique on right side of top of skull 3/4" from mid line 4" from right ear top and 9" from right eye brows rugged margins and bleeding present. (III) Linear abrasion 3-1/2" x 1/10" on back of left forearm. 3" from elbow joint, oozing present. (IV) Linear abrasion 2" x 1/10" on back of right fore arm 2-1/2" from elbow joint. 6. (III) Linear abrasion 3-1/2" x 1/10" on back of left forearm. 3" from elbow joint, oozing present. (IV) Linear abrasion 2" x 1/10" on back of right fore arm 2-1/2" from elbow joint. 6. Injured Prem Pal was in serious condition, therefore, he was merely given the first aid and referred to District Hospital, Muzaffarnagar. Family members, thereafter tried to take injured Prem Pal to District Hospital, Muzaffarnagar but he died at about 12.45 p.m. near bridge of Hindan river while on his way to district hospital Muzaffar Nagar. The corpse of deceased was again brought back to PHC, Budhana where a report was dictated to one Mangu Singh by the informant Banarasi. He took this report (Ex-Ka-1) to the Police Station Budhana and lodged it at 1.30 p.m. The place of occurrence is said to be six miles away from the police station as per details enshrined in check report (Ex-Ka-3). 7. Inquest proceedings were conducted by P.W-8 Sri Mahendra Singh Verma, the then Sub Inspector/Investigating Officer (I.O.) at the police station who is said to have sent the corpse to the mortuary of District Hospital of Muzaffarnagar through constable Rahmat Khan and Ratan Singh. Tractor Trolly contained a mattress (Gadda) and blood stained pyjamas of deceased Prem Pal which were taken in possession by the Investigating Officer (IO) and memorandum (Ex-Ka-8) was prepared. Inquest report (Ex-Ka-9) was prepared by the I.O. Statements of injured Rajendra and Omveer were recorded and thereafter the Investigating Officer went to the place of occurrence at Village Kuralasi where the statement of informant Banarasi (P.W-1) was taken and site-plan prepared which is said to have been lost somewhere therefore another site-plan was prepared on the basis of inspection note enshrined in the Case diary and proved as (Ex-Ka-13). Sample of blood soaked earth and plain earth were taken and memorandum (Ex-Ka-14) prepared. 8. P.W.-7 Dr. B. K. Mishra, the then Medical Officer of District Hospital, Muzaffarnagar conducted the postmortem on the body of deceased Prem Pal and following injuries were found on the person of deceased Prem Pal by Dr. B. K. Mishra:- (I) Abrasion 1-1/2" x 1" anterirolly abdomen left side 05" from umbilicus at 10 O'clock position. (II) Incised wound 1/2" x 1/4" x muscle deep on the back left 4.8" below scapulla at 6 O'clock position. Obliquely. Margins clean cut. Spindle shaped. Tailing upward and inwards. B. K. Mishra:- (I) Abrasion 1-1/2" x 1" anterirolly abdomen left side 05" from umbilicus at 10 O'clock position. (II) Incised wound 1/2" x 1/4" x muscle deep on the back left 4.8" below scapulla at 6 O'clock position. Obliquely. Margins clean cut. Spindle shaped. Tailing upward and inwards. (III) Abrasion 1/4" x 2/10" on the back 1" left of middle line of back left side 6" from inferior angle of scapula at 5 o' clock position. (IV) Abrasion 1/2" x 1/4" on the back right side 4" below scapula at 7 o' clock position. (V) Incised wound 1" x 1/4" x 6-1/2" on the thigh left side outer aspect 11" above knee joint. Obliquely. Margins sharp and clean cut. Spindle shaped. Slight tailing to backward and upwards. There is swelling due to blood clotts in muscles and tissues in this same place in an area of 4" all around the thigh. The femoral artery cut due to this injury. 9. This report indicates that on internal examination of the dead body of the deceased Prem Pal, both chamber of heart was found empty and the death of deceased was allegedly caused on account of shock and hemorrhage due to ante mortem injuries. Doctor has opined that the death of deceased Prem Pal had possibly occurred on 15.4.1980 during the period ranging from 10.00 a.m. to 12.30 p.m. The doctor has further opined that the incised wounds found on the body of the deceased Prem Pal were caused by knife and abrasions were caused by lathis. Doctor has also held that femoral artery being a significant and vital organ of the body was cut and that resulted into death of deceased Prem Pal. 10. Investigation continued initially by P.W-8 Mahendra Singh Verma and thereafter by another sub Inspector Sri Narendra Bhatt, who filed charge sheet (Ex-Ka15) against all the accused persons. Statements of all the accused persons were recorded under Section 313 Cr.P.C. Seven witnesses were also produced by the defence namely D.W-1 Khacheru, D.W-2 Dr D.C. Mobar, D.W-3 Harideo Gupta, D.W-4 S. K. Sharma, D.W-5 Vijay Pal Singh, D.W-6 Constable Raj Pal Singh and D.W-7 Brijpal Sharma. 11. Statements of all the accused persons were recorded under Section 313 Cr.P.C. Seven witnesses were also produced by the defence namely D.W-1 Khacheru, D.W-2 Dr D.C. Mobar, D.W-3 Harideo Gupta, D.W-4 S. K. Sharma, D.W-5 Vijay Pal Singh, D.W-6 Constable Raj Pal Singh and D.W-7 Brijpal Sharma. 11. Appellants denied all the allegations in their statements under Section 313 Cr.P.C. and claimed, contrary to the prosecution story, that deceased and his family members entered their house and assaulted them and gave them beating which resulted in the injuries to Shiv Kumar, Lakshmi Chand, Shiv Dutt and one Arjun, whose medical examinations were conducted by D.W.-2 Dr. D. C. Mohar. These reports are reproduced as under:- Ex-Kha-1 indicates that following injuries were found on the person of Shiv Kumar son of Kashmira Singh:- (I) Abrasion 1/2" x 1/4" on right scapula middle. (II) Contusion 3" x 3/4" on the top of left shoulder. (III) Abraded contusion 5" x 1-1/2" on back and inner side of left forearm lower third. (IV) Punctured wound ¼ " x 1/8" x muscle on outer side of right forearm upper third. Margins lacerated. Bleeding on touch present. (V) Traumatic swelling 2-1/2" x 3" on front of right forearm upper third. Advised x-ray. 12. Ex-Kha-2 Indicates that Lakshmi Chand had following injuries:- (I) Abraded contusion 2-3/4" x 1" on back of right shoulder upper part. (II) Abrasion 1/2" x 1/4" on back of right elbow. (III) Contusion 1-1/4" x ½ on back of left forearm middle third. (IV) Three abrasions in an area of 1-1/4" x 1" on the back of left hand near base of Index and middle finger Size 1/4" x ¼ " x ¼ " x 1/8", 1/8" x 1/2" each. (V) Lacerated wound 3/8" x 1/8 " x skin on palmer surface of left hand near base of little finger and bleed on touch. (VI) Lacerated wound 1/2" x 1/8" x skin on the tip of left thumb palmer surface bleed on touch. 13. Ex-Kha-3 says that the following injuries were found on the person of Shiv Dutt son of Kashmira:- (I) Abrasion 1/8 " x ¼ " on left side forehead with swelling 1-1/2 x around it. 14. Ex-Kha-5 indicates that following injuries were found on the person of Ram Katori wife of Kashmira:- (I) Contusion 3-1/4" x 3/4 " on front and outer side of right upper part. 14. Ex-Kha-5 indicates that following injuries were found on the person of Ram Katori wife of Kashmira:- (I) Contusion 3-1/4" x 3/4 " on front and outer side of right upper part. (II) Contusion 2 " x 1 " on front and outer side of right upper arm. Lower third. 15. It is pertinent to point out that as per evidence of Doctor D. C. Mobar,(D.W-2) all the injuries found on the person of injured accused Shiv Kumar, Lakshmi Chand and Ram Katori were on non vital part though fresh and caused within a duration of 6-8 hours prior to the examination. 16. Trial Judge framed charges against the accused persons namely Late Kashmira, Lakshmi Chand, Shiv Kumar and Shiv Dutt under Section 323/34 IPC, 324/34 IPC and 302/34 IPC on 14.8.1981. Additional charge was also framed against all the accused persons under section 307/34 IPC on 24.11.1981. On both occasions accused persons denied the charges and claimed to be tried. 17. Prosecution adduced as many as 8 witnesses namely Informant Banarasi as P.W.-1, P.W-2 Omveer (injured eye witness), P.W.-3 Mantoori (eye witness), P.W-4 Head constable Raje Singh (recorded the FIR), P.W.-5 Constable Ratan Singh, (carried corpse for postmortem), P.W.-6 Dr Ajeet Singh, (examined the injured), P.W-7 Dr. B. K. Mishra, (conducted the postmortem of deceased Prem Pal) and P.W.-8 Sri Mahendra Singh Verma, the Investigating Officer in support of his story. 18. Trial judge concluded that there was sufficient evidence to establish the guilt of all the appellants beyond reasonable doubt and therefore convicted all the accused persons as aforesaid vide judgment and order dated 26.11.1982. It is this judgment which is under challenge before this court. 19. We have heard Sri Apul Mishra, Mr Rahul Mishra and Mr Gaurav Singh, learned counsel for the appellants and Mr Amit Sinha, learned counsel appearing for the State Government and have gone through the entire material on record. 20. Learned counsel for the appellants have argued that the prosecution evidence primarily depends on partisan witnesses and that the prosecution has not produced any independent witness despite availability of the same. Submission further is that the prosecution has not explained the injuries sustained by accused persons during the same incident. 21. Learned counsel for the appellants have also argued that medical report of injured and deceased are consistent with the ocular testimony. Submission further is that the prosecution has not explained the injuries sustained by accused persons during the same incident. 21. Learned counsel for the appellants have also argued that medical report of injured and deceased are consistent with the ocular testimony. In any case argument is that accused persons were attacked by rival parties and they had to defend themselves and also used violence in defending themselves. Claim is that most of the injuries on the person of accused persons are on the hand which indicate that the appellants were infact defending themselves. Learned counsel for the appellants have also drawn the attention of the court towards various discrepancies in the prosecution evidence which arguably create doubt about their presence on the spot. 22. On the other hand, learned AGA has submitted that the prosecution evidence includes the testimony of two injured witnesses who sustained various injuries in the same event, therefore, their presence cannot be doubted and the story given by them is supported by the circumstances emerging out of the case. He has also denounced the claim of right of private defence on behalf of appellants saying that there is no evidence of attack by informant and his family members upon the assailants and that the claim of right of private defence infact supports the allegations of 'marpeet' on the date, time and place given in the FIR. Further argument is that the minor discrepancies do not necessarily indicate that the witnesses were not present on the spot. 23. Before embarking upon the prosecution evidence in detail it would be proper to have a glance over the testimonies of prosecution witnesses as well as the defence witnesses. 24. P.W.-1 Banarasi (informant) is father of deceased, who was allegedly present on the spot from the beginning of the episode. It is stated that he was present in his compound along with his son Prem Pal (deceased) and his wife on the date of occurrence i.e. 15.4.1980. He has deposed that the late appellant Kashmira was bringing back his bullocks after providing them drinking water from the village pond. He lost control over his bullocks, who entered the compound of informant. Fodder was lying nearby fodder machine within his compound. The bullocks started grazing and eating their 'Barseem' fodder. He has deposed that the late appellant Kashmira was bringing back his bullocks after providing them drinking water from the village pond. He lost control over his bullocks, who entered the compound of informant. Fodder was lying nearby fodder machine within his compound. The bullocks started grazing and eating their 'Barseem' fodder. His son deceased Prem Pal used lathi to drive away the bullocks from his compound infuriating late Kashmira, who started hurling abuses at Prem Pal. 25. It is stated by P.W.-1 Banarsi that they tried to dissuade him from abusing them. Irate Kashmira went to his house and in few minutes, brought back his sons Lakshmi Chand, Shiv Kumar and Shiv Dutt. All of them were armed with various weapons. Kashmira was holding Lathi while his son namely Shiv Kumar and Shiv Dutt were using knives and Lakshmi Chand was using iron-rod. They came at the residence of informant Banarasi and started abusing Prem Pal, the person who had driven away the bullocks of late appellant Kashmira by hitting them with Lathi. All of them entered the compound of informant and started hurling abuses. This commotion brought the witnesses Rajendra, Omveer (P.W-2) and Mantoori (P.W-3) along with some other persons on the spot. All the witnesses tried to reason with accused persons but of no avail. Accused person started beating deceased Prem Pal. When Rajendra and Omveer tried to rescue him, they too were assaulted and beaten. When challenged by informant Banarasi and his wife, the appellants fled from the place of occurrence. 26. P.W-1 Banarasi has testified that Prem Pal, Omveer and Rajendra were taken to PHC Budhana where the doctor provided medical aid to Omveer and Rajendra but merely provided the first aid to deceased Prem Pal for the simple reason that Prem Pal was in precarious condition. Therefore, Prem Pal was referred to Muzaffarnagar District Hospital. The family members took all the injured to District Hospital, Muzaffarnagar. Deceased Prem Pal succumbed to his injuries near Hindan River Bridge. Death of Prem Pal impelled the family to bring corpse of deceased back to PHC Budhana, where a report was dictated to one Mangu (scribe), thereafter, the report (Ex-Ka-1) was lodged at P.S. Budhana. 27. The family members took all the injured to District Hospital, Muzaffarnagar. Deceased Prem Pal succumbed to his injuries near Hindan River Bridge. Death of Prem Pal impelled the family to bring corpse of deceased back to PHC Budhana, where a report was dictated to one Mangu (scribe), thereafter, the report (Ex-Ka-1) was lodged at P.S. Budhana. 27. Careful perusal of the record would reveal that the report was lodged within 2-1/2 hours i.e. in less than 150-160 minutes at P.S. Budhana which was six miles away from the place of occurrence. This witness has conceded that one grandson of Kashmira had died six months prior to this incident but has denied the claim of appellants that complainant side had been arrayed as accused in that case at appellant's instance. 28. P.W.-2 Omveer is injured witness, who claims to have received injuries in the same incident. This witness has reiterated the story given by P.W.-1 Banarsi (informant) with minor variations. He has explained that the knives were used by two accused persons. This witness has also explained the injuries found on the person of the appellants. This witness has stated that when appellants attacked him and gave him beating, he also picked up the lathi nearby and retaliated whereupon some injuries were caused to accused persons. This fact has been mentioned by P.W.-1 Banarasi (Informant) as well on page 31 of the paper book. Initially he denied the allegations that accused persons were also injured in the episode, however, in the same paragraph he explained that the injured Rajendra and Omveer retaliated with lathi picked up from the same place. He has stated that he did not see any injury on the person of accused person, however he has further stated that as Rajendra and Omveer used lathi in defence, therefore, it is possible that some injuries might have been caused to appellant Shiv Dutt, Shiv Kumar and Lakshmi Chand. 29. P.W.-2 Omveer is member of Banarasi clan, however, P.W.-3 Mantoori has denied any close relationship with informant Banarasi. He has supported the prosecution story in detail. 29. P.W.-2 Omveer is member of Banarasi clan, however, P.W.-3 Mantoori has denied any close relationship with informant Banarasi. He has supported the prosecution story in detail. It is stated that when he reached the place of occurrence along with Jugna and Mitrapal on hearing the commotion emanating from the house of informant Banarasi, he saw that late Kashmira and his sons Lakshmi Chand, Shiv Dutt, Shiv Kumar were not only abusing the informant and his son Prem Pal but also using their weapon to beat them. Mantoori has further stated that he tried to dissuade the assailants from using violence but of no avail. They infact assaulted and attacked Prem Pal, Omveer and Rajendra. This witness has explained that injured Omveer and Rajendra picked up Lathi from the place of occurrence and retaliated in his defence when challenged by P.W-1 (Banarasi), Omveer (P.W-2) and Mantoori (P.W.-3), accused persons scampered away from the place of occurrence. This witness has explained the injuries found on the person of deceased Prem Pal. 30. P.W.-4 Head constable Raj Singh is a formal witness who merely recorded the FIR and P.W.-5 Constable Ratan Singh is a person who along with Rahmat Khan took the dead body of deceased from police Station Budhana to the mortuary. 31. P.W-6 Dr. Ajit Singh, examined all the injured namely Omveer and Rajendra, though he merely provided the first aid to the deceased Prem Pal and referred him to District Hospital, Muzaffarnagar. As stated earlier, deceased could not reach the district hospital, Muzaffarnagar. He succumbed to his injuries while on his way to district Hospital. Therefore, family brought the corpse back to PHC, Budhana and then to police station. His dead body was sent to District Headquarter for postmortem after concluding the initial investigation, inquest proceedings and other formalities. 32. P.W.-7 Dr B. K. Mishra conducted the postmortem on the person of the deceased. 33. P.W-8 Mr Mahesh Chandra Verma investigated the matter and thereafter charge sheet (Ex-Ka-15) was filed by Sub Inspector Narendra Singh the next Investigating Officer. 34. As stated earlier, the appellants have claimed right of private defence and they have also disputed the place of occurrence. P.W.-7 Dr B. K. Mishra conducted the postmortem on the person of the deceased. 33. P.W-8 Mr Mahesh Chandra Verma investigated the matter and thereafter charge sheet (Ex-Ka-15) was filed by Sub Inspector Narendra Singh the next Investigating Officer. 34. As stated earlier, the appellants have claimed right of private defence and they have also disputed the place of occurrence. They have stated that incident occurred at their residence when Banarasi (informant) and the deceased Prem Pal, Rajendra, Madan, Omveer and Chandrapal assaulted Shiv Kumar at his residence on 15.4.1980 at about 11 p.m. In support of this story, eye witness account has been given by one Khacheru Singh D.W.-1. Defence has claimed that in this attack they were infact beaten by the informant side and they were medically examined by D.W.-2 Dr D.C.Mobar on 15.4.1980 at 3.15 p.m. in District Hospital, Muzaffarnagar. He allegedly examined injured Shiv Kumar, Lakshmi Chand, Shiv Dutt and Ram Katori and their injuries have been mentioned in the earlier part of the judgment. 35. They claimed that their injury reports were prepared by D.W.-2 Dr. D. C. Mobar. They also claimed that the information was sent to S.P. Muzaffarnagar through the post office. In this connection, they have produced D.W.-3 Har Dev Gupta, Public Relation Inspector of Post office, Muzaffarnagar, D.W-4 S. K. Sharma, the Police Record Keeper of Muzaffarnagar, D.W-5 Vijay Pal Singh the then clerk of Circle office, D.W.-6 Constable Rajpal Singh and D.W.-7 Braij Pal Sharma, who claims to have seen the typed report dictated by appellant Lakshmi Chand. This report was never registered and investigated. It is pertinent to point out that copy of this alleged report is admittedly devoid of any signatures. 36. Bare perusal of the record would reveal that rival parties have conceded that some incident took place on 15.4.1980 at about 10-30 a.m. to 10.45 a.m. or 11 a.m. 37. Prosecution has produced three eye witnesses to support their allegation and even defence has produced D.W-1 Khacheru to support counter claim. Stated report (Ex-Kha-1) allegedly sent by Lakshmi Chand through postal department, further leaves no doubt that rival parties entered into fight on 15.4.1981 some time around 11 a.m. in village Kuralasi, P.S. Budhana. The only question remains to be answered is that how the incident occurred and who initiated it ? 38. Stated report (Ex-Kha-1) allegedly sent by Lakshmi Chand through postal department, further leaves no doubt that rival parties entered into fight on 15.4.1981 some time around 11 a.m. in village Kuralasi, P.S. Budhana. The only question remains to be answered is that how the incident occurred and who initiated it ? 38. Prosecution evidence claims that the incident occurred when the bullocks of Kashmira Singh entered the house of informant Banarasi (P.W.-1) and started eating green fodder lying near fodder machine within his compound. Prosecution claims that deceased Prem Pal used Lathi to drive away the bullocks from the compound which naturally enraged Kashmira who initially abused them and later on brought his three sons to commit assault. 39. On the other hand defence has claimed that one of the accused Shiv Kumar was traversing road opposite the house of Banarasi at about 11 a.m.. Banarasi and his family members abused and threatened Shiv Kumar whereupon he ran towards his own house but Banarasi, Prem Pal etc not only assaulted Shiv Kumar but also gave beating to Kashmira, Ram Katori, wife of Kashmira and his brother Shiv Dutt. Claim is that Shiv Kumar was beaten opposite the house of informant on the road. Almost similar story has been given by D.W.-1 Khacheru which indicates that place of occurrence is admitted virtually to both the parties. Informant Banarasi and his witnesses claimed that incident occurred while deceased Prem Pal drove away the bullocks of Kashmira from their house towards road while they were grazing fodder inside their compound. 40. On the other hand (Ex-Kha-7) a report said to have been sent by Lakshmi Chand accused also claims that Shiv Kumar was beaten on the road opposite the house of Banarasi etc meaning thereby that neither the time nor the place of occurrence is disputed, though appellants have denied the story of Bullocks entering the house of informant. But it is evident that appellants have accepted that at least initiation of fight took place on the road opposite Banarasi's house. Prosecution says that incident initially started inside the compound of informant and later on occurred outside. Similar evidence has been given by D.W.-1 Khacheru. Contents of said report given to S.P. Muzaffarnagar (Ex-Kha-7) also indicate it, therefore, the date, time and place of occurrence is virtually acceptable to both the parties. 41. Prosecution says that incident initially started inside the compound of informant and later on occurred outside. Similar evidence has been given by D.W.-1 Khacheru. Contents of said report given to S.P. Muzaffarnagar (Ex-Kha-7) also indicate it, therefore, the date, time and place of occurrence is virtually acceptable to both the parties. 41. Now coming back to the prosecution evidence, it is evident that the prosecution story given by P.W.-1 Banarasi says that incident occurred in retaliation of act of deceased in driving away the bullocks with the lathi assault. This stated assault on bullocks naturally angered Kashmira, who first abused deceased Prem Pal himself but finding himself alone, went and brought back his sons. Prosecution evidence has supported this story. There is no dispute as far as this incident of marpeet is concerned. Evidence of P.W.-1 Banarasi, P.W.-2 Omveer and P.W.-3 Mantoori have established the prosecution story completely. It is pertinent that trial judge rejected the argument of ante timing of FIR with detailed reasoning in para no. 22 of his judgment. Reasons are sound and acceptable. We are in complete agreement with the conclusions drawn by the learned Trial court on this score. 42. There is no evidence on record to suggest that rival parties have inimical relationship though appellants have claimed prior enmity and antagonistic relationship. Appellants have also claimed that Pawan, grand son of Kashmira had died six months prior to this incident and that circumstances relating to the death of Pawan created some sort of discord between the rival parties. Informant Banarasi has denied this claim, however, it is apparent that rival parties did not have friendly relationship. In this backdrop, act of Prem Pal (deceased) to physically beat the bullocks of Kashmira was sufficient to infuriate late Kashmira. Intervention of parents of deceased Prem Pal perhaps added fuel to fire and this made Kashmira to bring his three sons armed with various weapons back to the compound of Banarasi and commit assault on deceased Prem Pal. It is also evident that there was no reason for informant to attack appellants on the date of incident. 43. We have carefully examined the testimony of P.W.-1 Banarasi. Testimony of P.W.-1 is highly natural, credible and in consonance with normal human conduct. A searching cross examination was conducted and yet nothing significant could be gathered from this intensive cross examination. 44. 43. We have carefully examined the testimony of P.W.-1 Banarasi. Testimony of P.W.-1 is highly natural, credible and in consonance with normal human conduct. A searching cross examination was conducted and yet nothing significant could be gathered from this intensive cross examination. 44. Evidence of P.W.-2 Omveer is of considerable important. Omveer had sustained various injuries in the same attack. He was managed first to reach the place of occurrence on hearing the commotion. This witness has sustained as many as two lacerated wounds. Both on left side of skull and right side of the top of the skull. These injuries are not insignificant even, if we ignore two further abrasions found on his person. The doctor has given opinion that both the lacerated wounds were caused by Lathis or some iron rod. Prosecution story indicates that both Lathis and iron rod were being used by assailants. FIR (Ex-Ka-1) itself says that Kashmira was holding lathi and his son Lakshmi Chand was using iron rod, therefore, ocular testimony of prosecution witness finds supports from the medical evidence as well. 45. Second injured which has not been produced by the prosecution is Rajendra, who also sustained several injuries including incised wound on the left side of his chest and two incised wounds; one on the chest and one on the collar bone and one lacerated wound on head. All these injuries may be simple in terms of medical report but head injuries and the incised wound on the chest could have been fatal. Infact later on trial court framed charges under Section 307 IPC on account of these injuries. 46. These are the kind of injuries usually caused by people intending to cause injuries. Under the same attack companions of injured Omveer, Rajendra and deceased Prem Pal also sustained various injuries including incised wound, which ultimately resulted in death of Prem Pal. Incident occurred around 11 a.m. and deceased died some where around 12.45 p.m. while on way to district hospital. 47. On the other hand, injuries said to be found on the person of assailants are simple and mostly contusions and abrasions, though few injuries were also lacerated. On careful examination of the story of prosecution, it would be revealed that Omveer and Rajendra picked up Lathis from the compound and retaliated in defence. 47. On the other hand, injuries said to be found on the person of assailants are simple and mostly contusions and abrasions, though few injuries were also lacerated. On careful examination of the story of prosecution, it would be revealed that Omveer and Rajendra picked up Lathis from the compound and retaliated in defence. This stated retaliation would account for lacerated injuries, contusions and abrasions on the person of assailants if at all caused in the same incident. 48. We have carefully examined all material on record. Evidence of informant, father of deceased P.W.-1 Banarasi and injured witnesses Omveer along with testimony of P.W.-3 Mantoori, the eye witness establish the fact that assailants appellants attacked Prem Pal, Omveer and Rajendra on 15.4.1980 around 11 a.m. in village Kurasali, Budhana. Incised injuries sustained by Prem Pal and Rajendra can be attributed to the knife used by two assailants. 49. Learned counsel for the appellants have repeatedly argued that spindle shape incised wound cannot be accounted for by knife. We are afraid that this argument is not sustainable. The doctor is not a weapon expert. He has merely stated that possibility of such injuries are lesser from knife but if we carefully examine his evidence it would appear that spindle shape injuries could have been caused by any sharp edged weapon having sharp edges on both sides. Claim that knife had edge only on one side is not necessarily correct. Appellants claims that knife only had sharp edge on one side but P.W.-1 Banarasi has not accepted this argument. He has specifically said that he had not examined the knife from close quarter and that he only had cursory look on the knife wielded by assailants. It appears that P.W.2 Omveer has stated that knife had sharp edge on one side but he may not be correct for the simple reason that this sudden and unplanned incident occurred only for few minutes. Several persons were involved in this episode; some directly and some indirectly. Incident occurred in a vast area, therefore, we do not believe that it was possible for any witness to describe the nature of knife with mathematical precision. It is well established law that medical evidence is never compared with ocular testimony in a mechanical fashion. If core of medical evidence and ocular testimony are consistent then the minor discrepancies cannot be allowed to vitiate the prosecution case fully. It is well established law that medical evidence is never compared with ocular testimony in a mechanical fashion. If core of medical evidence and ocular testimony are consistent then the minor discrepancies cannot be allowed to vitiate the prosecution case fully. 50. Apex court in Vitthal Pundalik Zende versus State of Maharashtra, 2009 (2) ACR 1497 (S.C.)" has held that minor discrepancies between ocular testimonies and medical evidence would not result in rejection of the evidence of injured witness. Apex Court in G.S. Walia Vs State of Punjab, (1998) 5 SCC 150 has held that medical evidence should not be mechanically compared with oral testimony. In the case of G.S. Wallia (supra) certain injuries caused by sharp edged weapon was found on the body but oral testimony did not refer to any sharp edged weapon yet the Apex Court declined to reject the oral testimony. 51. In this connection, it would be also relevant to refer the case of "Ajay Singh versus State of Bihar, AIR 2000 (S.C.) 3538 ". In this case, location of second injury in postmortem report was described at different place in oral testimony but still oral testimony was not rejected by Apex Court due to this stated inconsistency. 52. Apex Court in Anwar Vs State of Haryana, 1997 (34) ACC 492 has held that minor discrepancy between the oral testimony and medical evidence is not enough to discard the otherwise trustworthy evidence of eye witnesses. 53. Learned counsel for the appellants have also submitted that wife of Kashmira sustained injuries and yet this has not been accounted for by the prosecution evidence. We are afraid that this argument regarding explanation of injuries of accused persons cannot be stretched too far. Prosecution has not referred to the presence of Ram Katori wife of Kashmira. Injuries allegedly found on her person were very simple. D.W.-2 Dr D.C. Mobar claims that only two contusions were found on the person of Ram Katori. Ram Katori has not appeared before the trial court. She has not given any evidence, therefore, contusions described as simple injuries by D.W.-2. Dr. Mobar cannot be given too much importance, even if, his evidence is adjudged trustworthy. It would only mean that on 15.4.1980 at about 4 p.m. two contusions were found on the person of Ram Katori. Origin and source of this contusions cannot be explained in vacuum. Dr. Mobar cannot be given too much importance, even if, his evidence is adjudged trustworthy. It would only mean that on 15.4.1980 at about 4 p.m. two contusions were found on the person of Ram Katori. Origin and source of this contusions cannot be explained in vacuum. The doctor has conceded that said injuries could have been self sustained. They are admittedly on non vital parts of the body. There is no satisfactory evidence on record to suggest that Ram Katori sustained these two contusions in the incident in which deceased Prem Pal lost his life. 54. Learned counsel for the appellants has also submitted that the prosecution has not produced any independent witness despite its availability. He claims that all the eye witness belongs to same clan and therefore to accept their testimony without any independent corroboration is not justified. We are afraid that this argument is not sustainable. Incident occurred somewhere around 11 a.m. Prem Pal died at 12.45 p.m. Prior to that medical examination had already been conducted at Budhana PHC and after the death of deceased Prem Pal a report was lodged at 1.30 p.m. If we carefully examine the sequence of events it would reveal that the prosecution did not have any time to concoct the story. Everything happened rapidly and in quick succession. Infact testimony of P.W.-8 Mahesh Chandra Verma indicates that some of the statements of major witnesses were infact recorded on the same day. Statements of injured Rajendra and Omveer were recorded on the same day. Thereafter statement of P. W.-1 Banarasi was also recorded on the same day at Village Kuralasi. There was no occasion for manufacturing the evidence as far as the prosecution is concerned. Inquest proceedings were conducted at the police station when the informant and others took deceased back to the PHC Budhana and then to Police Station Budhana. There was no time and opportunity for prosecution to concoct any evidence. Inquest report (Ex-ka-9) and other relevant documents i.e. the letter to CMO (EX-Ka-8), Photonash (Ex-Ka-11), police form No. 13 (Ex-Ka-12) etc prepared on the spot have specifically mentioned crime number, sections etc. Therefore we cannot believe that all these documents were fabricated, especially in the light of the fact that every documents contain crime number and details of crime and sections. 55. Therefore we cannot believe that all these documents were fabricated, especially in the light of the fact that every documents contain crime number and details of crime and sections. 55. Promptness in lodging of the FIR and promptness of investigation rules out any possibility of fabrication. FIR is very detailed. It virtually contain most of the things which are ordinarily required in the FIR i.e. names of assailants, weapons wielded by them, date, time and place of occurrence, names of eye witnesses and names of injured witnesses. FIR was also lodged within 150 minutes of the incident at police station which was located six miles from the place of occurrence. 56. Argument, that only partisan witnesses have been produced and therefore prosecution evidence should be discarded is not acceptable at all. Now it is well settled law that relationship of witnesses with the deceased and informant per-se would not make them automatically untrustworthy. Fact of the matter is that every witness is considered to be truthful unless proved contrary. If discrepancies pointed out by defence are insignificant and minor and if the core of prosecution evidence is intact then relationship of the witnesses with deceased and minor discrepancies per-se would not affect the prosecution case. 57. Apex court in the case of Ram Gopal Vs State of Rajasthan, 1998 (6) SCC 491 has held that merely because witnesses are connected or related to deceased is not sufficient to disbelieve their testimony. Presence of such witnesses cannot be discarded or disbelieved merely because they are related to deceased if otherwise their testimony is trustworthy. 58. Apex Court in Chacko Jacob Vs State of Kerala, 1998 (5) SCC has held that even if independent witnesses are present and available but not produced that by itself is not sufficient to discard the evidence of trustworthy witnesses. 59. In view of the aforesaid discussions we believe that the evidence adduced by prosecution in this case is highly trustworthy. Trial court has analyzed the prosecution evidence adroitly. Conclusions drawn by the learned Trial Judge are consisted with the available eye witness account as well as medical evidence. There is no material contradiction between the testimony of various witnesses. In the facts and circumstances of the present case, the appeal is liable to be dismissed. 60. Trial court has analyzed the prosecution evidence adroitly. Conclusions drawn by the learned Trial Judge are consisted with the available eye witness account as well as medical evidence. There is no material contradiction between the testimony of various witnesses. In the facts and circumstances of the present case, the appeal is liable to be dismissed. 60. Now another question remains to be answered is nature of offence committed by accused persons and whether it falls under any exception of Section 300 IPC ? The fact of the matter is that it is apparent that incident occurred without premeditation. Bullocks had entered the house of the informant suddenly. Deceased Prem Pal gave bullocks beating with lathi. Probably, he was within his right to do so as the bullocks had started grazing the fodder lying in his compound. But bullocks are very important and dear to most of the farmers. This assault on bullocks enraged Kashmira and his family. This was the basis of further incident. Secondly, it is apparent that incident occurred without any premeditation and in the heat of passion upon a sudden quarrel. Offender did not even take undue advantage or acted in cruel manner. 61. In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217 , Apex Court on the same issue held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300, the Apex Court observed as under:- To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. (emphasis supplied). 62. In Ghapoo Yadav and Ors. v. State of M.P., (2003) 3 SCC 528 , Apex Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite: "10. .......... The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". (Emphasis supplied) xxx xxx xxx "11......... After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-appellants had come prepared and armed for attacking the deceased. ............. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable......." (Emphasis supplied) 63. In Sukbhir Singh v. State of Haryana, (2002) 3 SCC 327 , the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court, Hon'ble Apex Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300 IPC. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court, Hon'ble Apex Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300 IPC. In cases where after the injured had fallen down, the appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. The Court observed as under:- "19..........All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner." (Emphasis supplied) 64. In Mahesh v. State of M.P., (1996) 10 SCC 668 , where the appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 of IPC. This Court held: "4. ..............Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW 2 or PW 6 who were also present along with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW 1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. Admittedly, he did not assault PW 2 or PW 6 who were also present along with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW 1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception 4 to Section 300 IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304 (Part I) IPC........." (Emphasis supplied) 65. The law laid down in the aforesaid cases was considered and applied recently by the Apex Court in the case reported in Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770 . In this case also, the appellant-accused while passing on the field of the deceased on a spur of moment indulged in heated talk with the deceased which resulted in hitting a blow by the appellant-accused to the deceased with the rod causing death of the deceased. Hon'ble the Chief Justice T. S. Thakur, speaking for the Bench, accepted the plea raised by the appellant-accused and accordingly altered the sentence falling under Section 304 Part II IPC by giving him the benefit of Exception 4 of Section 300 IPC. It was held by the Court as under: "27......... we are of the opinion that the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted do not suggest that the appellant had the intention to kill the deceased. All that can be said is that the appellant had the knowledge that the injury inflicted by him was likely to cause the death of the deceased. The case would, therefore, more appropriately fall under Section 304 Part II IPC." 66. Coming back to the facts of the present case, it is clear that there was sudden altercation between the parties which resulted in an incident in which both the parties sustained injuries. Evidence clearly establishes that appellants were not only aggressor but infact they caused maximum damage but some of them did receive simple injuries on their person as well. 67. Evidence clearly establishes that appellants were not only aggressor but infact they caused maximum damage but some of them did receive simple injuries on their person as well. 67. Fatal injury caused to the deceased Prem Pal is an incised wound caused on the left thigh. Obviously this injury was not caused with the intention of murdering Prem Pal. This injury was caused with intention of hurting him and causing injuries. Unfortunately, often injuries are neither caused with any mathematical precision nor provide predetermined results. In this case, the fatal injury unfortunately cut the femoral artery of the deceased. Absence of quick medical aid resulted in the excessive bleeding and syncope. We believe that stated injuries will bring the offence under Section 304 part II IPC only. 68. Now that leaves individual roles attributed to appellant no. 2 Lakshmi Chand, appellant no. 3 Shiv Kumar and appellant no. 4 Shiv Dutt. So far as these appellants are concerned, prosecution story and evidence reveals that Shiv Kumar and Shiv Dutt were holding knife at the time of incident but appellant Lakshmi Chand was merely holding iron rod. Injuries on the person of deceased shown by P.W-7 Dr. B. K. Mishra talks of two incised wound and three abrasions. First incised wound of ½ " X ¼ " X Muscle deep on the back left 4.8" below scapula at 6 o' clock position. Second incised wound was of 1" X 1/4" X 6-1/2" on the thigh left side outer aspect 11" above knee joint. This report indicates that femoral artery was cut due to these injuries. Doctor has opined that injury no. 5 was the reason for the death of deceased Prem Pal and this injury was certainly not caused by Lakshmi Chand as he was holding merely iron rod. In the opinion of the doctor P.W.-7 B. K. Mishra, injury no. 5 was caused by sharp edged weapon. Only sharp edged weapon being used was knife and those were not used by appellant Lakshmi Chand. It is apparent that appellant Lakshmi Chand has been convicted under Section 302 only with the aid of Section 34 IPC. Now to constitute common intention, it is necessary that intention of each of the accused is known to others and shared by them. It is apparent that appellant Lakshmi Chand has been convicted under Section 302 only with the aid of Section 34 IPC. Now to constitute common intention, it is necessary that intention of each of the accused is known to others and shared by them. There is no evidence to show as to how and in what manner and position Lakshmi Chand and appellant Shiv Kumar shared common intention. Fatal blow was caused by appellant Shiv Kumar. Iron rod could have merely caused abrasions, contusions and even lacerated wounds. It is clear that not a single lacerated injury was found on the person of deceased. We also believe that as far as Section 304 Part II IPC is concerned it is not possible to convict the appellant Lakshmi Chand with the aid of Section 34 IPC considering his individual role in the episode. 69. Role of remaining two appellants namely Shiv Kumar and Shiv Dutt will fall within domain of Section 304 Part II IPC read with Section 34 IPC as far as death of deceased Prem Pal is concerned. There is no need to disturb remaining findings of the trial court including other sentences under Section 307/34, 324/34 and 323/34 IPC. However, as stated earlier out of the four appellants, one of the appellant i.e. appellant No. 1 Kashmira has died, therefore, appeal filed on his behalf has already been abated vide order dated 22.5.2012. As far as appellant No. 4 Shiv Dutt is concerned, a co-ordinate bench of this court had directed the District Court Muzaffarnagar to verify the claim of his juvenility. This order was passed by this Court on 24.3.2015, which is reproduced herein below:- "An application has been moved on behalf of the appellant Shiv Dutt son of Kashmira being application No. 236070 of 2012 whereby the appellant has sought to file additional evidence to prove that on the date of the incident, he was below 18 years of age and therefore, he is entitled for the benefit of juvenility. Let the District Judge, Muzaffarnagar hold a detailed enquiry into the juvenility of the appellant Shiv Dutt son of Kashmira and submit a report to this Court after hearing all the parties concerned. List in week commencing 27.10.2014. " 70. In pursuance of the aforesaid order, inquiry was conducted and thereafter a report dated 19.2.2015 is submitted. According to this report, appellant no. List in week commencing 27.10.2014. " 70. In pursuance of the aforesaid order, inquiry was conducted and thereafter a report dated 19.2.2015 is submitted. According to this report, appellant no. 4 Shiv Dutt was juvenile in conflict with law on the date of incident. Paragraph no. 11 of this report is reproduced herein below:- "In the instant case, the appellant was produced the certificate of Primary Pathshala, K.S. Inter College and certificate of the Principal of Pasharvanath Jain Inter College, Jaula, District Muzaffarnagar which have been proved by him in accordance with law. No evidence has been produced by opposite side/prosecution to rebut this evidence. Thus, on the basis of facts, evidence and circumstances of this case, I am of the view that the appellant Shiv Datt was juvenile in conflict with law on the date of incident. The report is submitted for kind consideration please." 71. Thus, the appeal filed by appellant Shiv Dutt, is liable to be decided in terms of Juvenile Justice (Care and Protection of Children) Act 2000 (in short Juvenile Justice Act). Section 7-A of Juvenile Justice Act provides procedure to be followed when the claim of juvenility is raised before any court, or the court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be. It is further provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act. Further, if the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect. 72. Further, if the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect. 72. We have already concluded that the appeal filed on behalf of appellant No. 4 Shiv Dutt is liable to be dismissed. However, for the sentencing purposes we will have to send back his case to the Juvenile Justice Board, Muzaffarnagar for awarding of appropriate sentence in accordance with law. 73. In the result the appeal is decided in the following terms:- (I) Appeal filed on behalf of appellant no. 1 Kashmira stand abated on account of his death; (ii) Appeal filed on behalf of appellant no. 2 Lakshmi Chand is partly allowed. His conviction and sentence under Section 302 read with Section 34 IPC is set aside. However, his conviction and sentence under Section 307 read with Section 34 IPC, Section 324 read with Section 34 IPC and Section 323 read with Section 34 IPC are affirmed and maintained. All sentences shall run concurrently. (iii) Appeal filed on behalf of appellant no. 3 Shiv Kumar is partly allowed. His conviction under Section 302 read with Section 34 IPC is modified to Section 304 part II IPC read with Section 34 IPC. However, his conviction and sentence under Section 307 read with Section 34 IPC, Section 324 read with Section 34 IPC and Section 323 read with Section 34 IPC are affirmed and maintained. He is also sentenced to undergo rigorous imprisonment for 8 years under Section 304 Part II IPC read with Section 34 IPC alongwith a fine of Rs. 2 Lacs. In default of payment of fine appellant Shiv Kumar shall further undergo imprisonment for two years. All original sentences shall run concurrently. (iv) Appeal of appellant no. 4 Shiv Dutt is partly allowed. His conviction under Section 302 read with Section 34 IPC is modified to Section 304 Part II IPC read with Section 34 IPC. However, his conviction under Section 307 read with Section 34 IPC and Section 324 read with Section 34 and Section 323 read with Section 34 IPC are affirmed and maintained. 4 Shiv Dutt is partly allowed. His conviction under Section 302 read with Section 34 IPC is modified to Section 304 Part II IPC read with Section 34 IPC. However, his conviction under Section 307 read with Section 34 IPC and Section 324 read with Section 34 and Section 323 read with Section 34 IPC are affirmed and maintained. However, the punishments imposed on him by trial court are quashed since on the date of incident this appellant was juvenile in conflict with law and therefore he would be entitled to the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000. In this scenario, his case is being sent to the Juvenile Justice Board, Muzaffarnagar for passing appropriate sentence in accordance with law; 74. Appellants Shivkumar, Shiv Dutt and Lakshmi Chand are directed to surrender before the Trial Court or before the Juvenile Justice Board, Muzaffarnagar as the case may be, within fifteen days from today. 75. The appeal is accordingly decided. Office is directed to send the relevant record to the Juvenile Justice Board, Muzaffarnagar for passing appropriate sentence upon appellant Shiv Dutt within a month. 76. Copy of the judgment be certified to concerned trial court within 15 days. Both the courts i.e. the trial court as well as the Juvenile Justice Board, Muzaffarnagar shall submit a compliance report within one month thereafter.