JUDGMENT : Goverdhan Bardhar, J. 1. Challenge in the instant criminal appeal has been made by the appellants to the judgment of conviction and sentence dated 25.01.2014 passed by the Court of learned Additional District and Sessions Judge No. 18, Jaipur Metropolitan [for short 'the learned trial Court'] in Sessions Case No. (84/12) 21/12, State of Rajasthan vs. Krishna Kumar, whereby the learned trial Court has convicted and sentenced the appellants as under:- U/s. 302 IPC: Life imprisonment and fine of Rs. 10,000/-, in default of payment of fine to further undergo six months simple imprisonment. U/s. 307 IPC: Ten years rigorous imprisonment and fine of Rs. 10,000/-, in default of payment of fine to further undergo six months simple imprisonment. U/s. 341 IPC: One month imprisonment. U/s. 324 IPC: Two years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine to further undergo two months simple imprisonment. 2. All the sentences were ordered to run concurrently. 3. Facts of the case in nutshell are that on 05.03.2012 injured PW-1 Dinesh Saini gave a Parcha-bayaan (EX. P1) in Polytrauma ward, SMS Hospital, Jaipur, which was recorded by P.W. 12 Shri Jagdish Prasad, Sub inspector, Police Station Amer, to the effect that he had studied upto class x. He had a shop in Kunda Amer in the name of Akash Electricals. On that day, at about 7-7:30 p.m. he received call from Mukesh Saini on his mobile phone that a quarrel had taken place with Ramu Meena and he was in Amer Hospital. Thereupon, he along-with Mukesh Saini, Pawan Saini and Kail ash Meena came to his shop and from there they went to Amber Hospital on motorcycles. Their friend Ramu Meena was not found there, while they were returning to Kunda, 4. On the way, in front of Airier police station, three boys had blocked the road. These boys were Kishan Meena, Gajendra and Madan when they reached near the boys, all of them attacked them with intention to kill. Firstly, Kishan Meena attacked with a knife on the person of Pawan Saini. Before they could comprehend, Kishan Meena started attacking him with a knife. One blow was given on his chest, another on waist, two injuries were given on left hand and on the head. Gajendra and Madan caught hold of Pawan (since deceased) and him. Firstly, Kishan Meena attacked with a knife on the person of Pawan Saini. Before they could comprehend, Kishan Meena started attacking him with a knife. One blow was given on his chest, another on waist, two injuries were given on left hand and on the head. Gajendra and Madan caught hold of Pawan (since deceased) and him. Kishan, Madan and Gajendra had a fight with Ramu and his family and due to this enmity they had attacked them. On reaching hospital he came to know that due to injuries caused with knife, Pawan had died. 5. On the basis of aforesaid Parcha-bayan (EX. P1), FIR No. 85/2012 (EX. P2) was registered at Police Station Amer, District Jaipur (North) for the offences under sections 341, 307, 302 and 34 IPC. The police after investigation submitted charge-sheet against the accused persons for the offences under Sections 341, 307, 302, 324, 34 IPC and section 4/25 of the Arms Act in the Court concerned. 6. Learned trial court framed charges against the accused appellants for the aforesaid offences. The appellants denied the charges and claimed trial. The prosecution in support of its case recorded statements of twenty witnesses and twenty eight documents were got exhibited. 7. Thereafter, the accused/appellants were examined under Section 313 Cr.P.C. in defence the accused appellant did not produce any evidence. The appellants aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence passed by learned trial court dated 25.01.2014 have preferred this criminal appeal. 8. Learned counsel for the accused appellants has argued that from the evidence of prosecution witnesses as well as from Parcha-bayan (EX. P1), it is clear that the substantive offence under section 302 IPC is not made out against the accused appellants. As per Parcha-bayan (EX. P1), P.W. 1 Dinesh went along-with P.W. 8 Mukesh Saini and P.W. 9 Kail ash Meena on his motorcycle. P.W. 8-Mukesh Saini and P.W. 9-Kailash Meena have not supported the prosecution story. The eye-witness of the alleged occurrence is only P.W. 1-Dinesh. This witness has not stated that the accused appellants Madan or Gajendra did any assault upon anyone. There was no common intention of accused appellants Madan and Gajendra to cause grievous hurt to P.W. 1 Dinesh or to take his life or to commit murder of Pawan Saini. The eye-witness of the alleged occurrence is only P.W. 1-Dinesh. This witness has not stated that the accused appellants Madan or Gajendra did any assault upon anyone. There was no common intention of accused appellants Madan and Gajendra to cause grievous hurt to P.W. 1 Dinesh or to take his life or to commit murder of Pawan Saini. Both were not in inimical relations with P.W. 1 Dinesh as has been admitted by P.W. 1 Dinesh himself in his cross-examination. No specific role of appellants Madan and Gajendra has been attributed in furtherance of common intention. Though P.W. 1 Dinesh, who is an injured witness but his testimony is not at all reliable. He has materially diverted from his earlier statement given in Parchabayan (EX. P1) and in the affidavits EX. D3 and EX. D6. P.W. 17 Dr. Anil Solanki deposed that the injuries are in oval shape which can come from sharp edged weapon. The knife allegedly recovered by the police was not produced during examination before this witness, in recovery memo (EX. P16) it has not been mentioned that it was double edged knife. None of the witnesses have stated that the knife was double edged. Thus, the prosecution has failed to establish that the injuries received by deceased Pawan were caused from alleged knife. The alleged recovery of knife was made from the house of accused but no member of the house was witness to the recovery. P.W. 10 Rohitash Kumar and P.W. 11 Ram Karan have also not supported the recovery. P.W. 18 Naseem Lilian deposed that deceased Pawan was lying in front of SBBJ Bank and Bhanwar Singh was the only eye-witness. P.W. 1 Dinesh also named Bhanwar Singh but Bhanwar Singh has not been produced by the prosecution. P.W. 7 Mahesh Kumar deposed that Rambabu Saini brought Pawan to Emergency but Rambabu has not been examined. 9. Learned Public Prosecutor assisted by Mr. O.P. Fauzdar appearing on behalf of Mr. Anil upman, for the complainant opposed the appeal and supported the impugned judgment of conviction and sentence passed by the learned trial court. 10. The case of the prosecution rests on account of evidence of the injured witness P.W. 1-Dinesh Kumar Saini. Dinesh Kumar Saini (P.W. 1) deposed that on 05.03.2012 at about 7-7-30 PM, one call of Mukesh Saini (P.W. 8) came on his mobile. 10. The case of the prosecution rests on account of evidence of the injured witness P.W. 1-Dinesh Kumar Saini. Dinesh Kumar Saini (P.W. 1) deposed that on 05.03.2012 at about 7-7-30 PM, one call of Mukesh Saini (P.W. 8) came on his mobile. He (Mukesh Saini) asked about his (Dinesh Kumar Saini) location. After 4-5 minutes Mukesh Saini (P.W. 8), Kailash (P.W. 9) and Pawan Saini came to his shop. They told that someone has quarreled with their friend Ramu and he is admitted in Amer Hospital. These four persons reached on two different motorcycles at Amer Hospital but they did not find their friend Ramu Meena there, when they were coming from Amer Hospital towards Kunda, on the way in front of Amer Police Station, the vehicles of uncle of Ramu Meena were passing. As they reached on the gate of Amer Police Station, Krishan Meena, Gajendra Meena and Madan Meena blocked the way while lying on the road. Gajendra and Madan caught Pawan Saini from the back side and Krishan Meena attacked, with the knife, on the chest of Pawan when he went to save Pawan, in the meanwhile Gajendra, Madan caught him and Krishna inflicted five knife blows on stomach, hands and back and thereafter when Mukesh Saini tried to save him then these three persons tried to attack him with knife. He ran towards Amer side raising alarm, upon hearing the hue and cry, from Amer Police Station Munishji, Bhanwar Ji and one constable came out and reached there. The police personnel of Amer Police Station took them to SMS Hospital. At about 9-9:30 O'clock he came to know that Gajendra Meena, Krishan Meena and Madan Meena had attacked Pawan with knife and he had died due to the injuries received from the knife. P.W. 1 Dinesh also identified the accused in the Court during examination. 11. P.W. 2-Harinarain, brother of injured Dinesh Kumar Saini, deposed that injured told him that Madan, Krishan and Gajendra inflicted knife blows on the person of deceased. 12. P.W. 10 Rohitash Kumar and P.W. 11-Ramkumar are witnesses of recovery of shirt, knife, lock, key and the seizure memos are EX. P16 and EX. P17. 13. P.W. 18-Nasim Lilian Khan deposed that after handing over of investigation to him, he investigated into the matter. Accused Krishan Kumar was arrested vide arrest memo (EX. P16). 12. P.W. 10 Rohitash Kumar and P.W. 11-Ramkumar are witnesses of recovery of shirt, knife, lock, key and the seizure memos are EX. P16 and EX. P17. 13. P.W. 18-Nasim Lilian Khan deposed that after handing over of investigation to him, he investigated into the matter. Accused Krishan Kumar was arrested vide arrest memo (EX. P16). At the instance of accused Krishan Kumar, the knife and the shirt stained with blood were seized vide seizure memo EX. P16. 14. P.W. 19 Kanhaiyalal, father of the deceased Pawan Kumar Saini admitted that on A to B portion of police statement (EX. D12) he got recorded that due to enmity, Krishan Meena, Madanlal and Gajendra Meena have committed murder of his son by giving knife blows. 15. P.W. 1-Dinesh Kumar Saini deposed that Gajendra, Madan caught him and Krishna Meena inflicted five knife blows to him. 16. The injury report of injured Dinesh is Ex. P4, injured Dinesh was examined by P.W. 15-Dharmendra Kumar. P.W. 15 deposed that on 05.03.2012 he was posted as Medical Jurist in SMS Hospital. He medically examined the injuries of injured Dinesh on that day. During examination, he found following injuries on his person: "1. Stab incised wound 2-1/2 x 1 cm. x?', clean cut margin, fresh bleeding oval in shape present over just above of epigastria - Sharp weapon. 2. Incised wound 9 cm., one stitched mid of wound, regular clean cut margin obliquely placed present over CO forearm-Or/x-ray/clinical-simple sharp. 3. Stitched wound 8 in number, regular margin, clotted blood present over (L) mid arm-simple sharp. 4. Stitched wound 6 cm. clean cut edges, obliquely placed present over (L) pari to temporal of skin-Or/x-ray sharp. 5. Stitched wound 3 cm, regular clean cut margin, horizontally placed mid back ® side of spine-simple sharp". 17. P.W. 15 further deposed that he advised for x-ray report about injuries No. 1 and 4. All the injuries received by the injured were from sharp edged weapon. P.W. 15 deposed that the injury No. 1 was grievous in nature and injury No. 4 was dangerous to life, injury No. 5 was simple in nature. 18. P.W. 17-Dr. Anil Solanki deposed that on 16.03.2012 he was posted as Medical Jurist in SMS Hospital. He conducted autopsy vide EX. P27 on the dead body of deceased Pawan Kumar Saini. P.W. 15 deposed that the injury No. 1 was grievous in nature and injury No. 4 was dangerous to life, injury No. 5 was simple in nature. 18. P.W. 17-Dr. Anil Solanki deposed that on 16.03.2012 he was posted as Medical Jurist in SMS Hospital. He conducted autopsy vide EX. P27 on the dead body of deceased Pawan Kumar Saini. During the course of examination, he found following injuries on the person of deceased Pawan Kumar Saini:- "1. Stab incised wound of size 5 cm. x 2.5 cm. x 7 deep present over right side anterior wall obliquely at a distance of 5 cm. from right nipple & 19 cm. from right Acrimony prominence and 3 cm. from mid line with clean cut, well define, regular margins and red clotted blood, upper angle of wound is relatively more acute than the lower one. On further dissection the wound is going through fourth inter coastal space cutting inferior border of third 3rd rib and on an extent of 3/4th cm. with corresponding hematoma & contusion formation over bone & muscles. On Fl dissection breach of size 4.5 cm. x 2 cm. present over underlying corresponding pleura and pleura is pale and containing 12 oocc blood & blood clots. On Fl examination stab incised wound of size 4 cm. x 2 cm. present over right middle lobe upper point with clean cut regular margin. On dissection going upto upper part of right main branches passing through ilium and associated vessels of right lung. On probing and on dissection the depth of wound is 15.5 cm. & whole of the track and related issue are infiltrated with blood and blood clots. 19. The cause of death of deceased Pawan Kumar Saini was "shock (hemorrhagic) brought about as a result of ante mortem bodily injury, injury No. 1 which is caused by sharp edged weapon, is sufficient to cause death in the ordinary course of nature". 20. On the basis of Parcha-bayan (EX. P1) of injured Dinesh Saini, FIR (EX. P2) was registered in Parcha-bayan (EX. P1) it is specifically alleged that Krishna Meena inflicted repeated knife blows, on Pawan Saini with the intention of killing him, due to enmity, it is also alleged that Gajendra and Madan had caught injured Dinesh Saini (P.W. 1) and Pawan Saini (deceased) to support Krishna Meena. P1) of injured Dinesh Saini, FIR (EX. P2) was registered in Parcha-bayan (EX. P1) it is specifically alleged that Krishna Meena inflicted repeated knife blows, on Pawan Saini with the intention of killing him, due to enmity, it is also alleged that Gajendra and Madan had caught injured Dinesh Saini (P.W. 1) and Pawan Saini (deceased) to support Krishna Meena. The statement of injured witness Dinesh Saini was recorded as P.W. 1 on 30.10.2012. During his lengthy cross-examination, P.W. 1-Dinesh Saini specifically deposed that all the three persons had attacked them in furtherance of common intention of killing. 21. During trial, the trial court passed order of recalling witness Dinesh Saini (P.W. 1) in respect of affidavit (EX. D6) submitted during the course of investigation exonerating Tara Chand Saini. On recalling, the statement of P.W. 1-Dinesh Saini was recorded on 19.07.2013. Recalling order of P.W. 1-Dinesh Saini was passed with regard to limited purpose to confront him with the affidavit (EX. D6). Thus, the statement of P.W. 1 Dinesh Saini does not nullify his earlier statement recorded on 19.07.2013 qua the involvement of appellants in the crime. 22. P.W. 19-Kanhaiyalal, father of deceased Pawan Saini, deposed that his statement was recorded on 13th March and when he reached SMS Hospital, Jaipur, he came to know that his son Pawan Saini had died due to knife injury. P.W. 19 deposed that Madan and Gajendra had caught his son Pawan Saini (now deceased) and Krishna inflicted knife blow. 23. P.W. 18-Nasimullah Khan, investigating Officer of the case, in cross-examination has admitted that he recorded the statement of P.W. 19-Kanhaiyalal, father of deceased Pawan Saini. 24. P.W. 1-Dinesh Saini, who is an injured and eye-witness of the incident, has supported the prosecution story and the testimony of this witness is corroborated by the medical evidence. Thus, the testimony of injured witness cannot be discarded because of minor contradictions. 25. The testimony of the eye-witness, coupled with the post mortem report (EX. P27) of Pawan Saini and the evidence of P.W. 17-Dr. Anil Solanki, clearly establish the fact that the accused appellants had certainly caused bodily injuries, which were eminently dangerous and in all probabilities, have caused the death of the deceased. The intention to do so, is well established from the above facts. As per the statement of P.W. 17-Dr. P27) of Pawan Saini and the evidence of P.W. 17-Dr. Anil Solanki, clearly establish the fact that the accused appellants had certainly caused bodily injuries, which were eminently dangerous and in all probabilities, have caused the death of the deceased. The intention to do so, is well established from the above facts. As per the statement of P.W. 17-Dr. Anil Solanki, the injuries on the person of the deceased were ante-mortem in nature. The number of injuries found on the body of deceased, further establish that the intention of accused appellants was only and only to cause the death of Pawan Saini in criminal law, intention of a person is gathered with reference to the circumstances surrounding the actual act, and which in the present case, is well established. 26. In view of above, we find that the prosecution has been successful in proving guilt of the accused-appellants, by adducing cogent and reliable evidence, beyond all reasonable doubt. 27. Hence, from the circumstances brought on record by the prosecution, the guilt of the accused-appellants with regard to the commission of crime in-question stands duly established. 28. We do not find any perversity, illegality or infirmity in the finding of learned trial Judge, because appreciation of facts and evidence had been made on the basis of evidence on record and nothing is against the weight of evidence or altogether against the evidence. 29. In the result, the criminal appeal filed by the accused appellants is bereft of merit and accordingly stand dismissed. The Judgment of conviction and sentence dated 25.01.2014 passed by the Court of learned Additional District and Sessions Judge No. 18, Jaipur Metropolitan in Sessions Case No. (84/12) 21/12, State of Rajasthan vs. Krishna Kumar, are maintained. The accused appellant-Krishna Kumar Meena, who is on bail, is directed to surrender before the trial court for undergoing the sentence of imprisonment as awarded, failing which the trial court shall take steps against him for serving the sentence. 30. The record of the case be sent back forthwith to the trial court, for doing the needful.