JUDGMENT M. G. Giratkar, J. - Criminal Appeal No. 123/2011 is filed by the convicted accused Dinesh Sawale for the offence punishable under Section 304(II) of the Indian Penal Code by which he is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 2,000/- (Rupees Two Thousand Only), in default to suffer further rigorous imprisonment for one month. 2. Criminal Appeal No. 344/2011 is filed by complainant Pankaj Walde for conviction of accused persons/respondent nos. 1 to 4 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 3. The facts which can be summarized as under :- (i) That complainant Pankaj Walde along with his parents, sister, brother, sister-in-law were residing at Khalasi Line, near Lalacha Bagicha, Nagpur. On 2-9-2007 at about 8.00 p.m., two guests had come to the house of the complainant. They parked their motorcycle in front of the house of the complainant. There was space for passing of other vehicles. All family members of the complainant were sitting in the house and were chit-chatting. At about 8.15 p.m., accused no. 2 Nitin Sahare had come at the door of house of complainant and told the complainant to remove two wheelers. By saying so, accused no. 2 started abusing the informant (P.W. 1). P.W. 1 assured him that he will remove the vehicles within two minutes. At that time accused no. 1 Dinesh Sawale came in front of the house of neighbour of the complainant and told that it is their usual drama and also told that because of wall constructed by the complainant, there is no space to pass their vehicles. At the same time accused no. 3 Madhuri came with iron rod (crow bar) and started demolishing the small wall. Accused no. 1 Dinesh went to his house and brought bamboo stick. Accused nos. 2 to 4 started abusing loudly. They started beating the complainant. Father of complainant/P.W. 1 Sahadeo tried to rescue P.W. 1 but accused persons did not listen. Deceased Sahadeo was trying to convince accused. Accused nos. 3 and 4 caught hold the hands of deceased and accused no. 2 started giving fist blows to Sahadeo. At that time accused no. 1 gave blow of stick on the head of deceased. Accused nos. 1 to 4 ran away. Deceased Sahadeo became unconscious. He was taken to Shanti Mohan Hospital. Accused nos. 3 and 4 caught hold the hands of deceased and accused no. 2 started giving fist blows to Sahadeo. At that time accused no. 1 gave blow of stick on the head of deceased. Accused nos. 1 to 4 ran away. Deceased Sahadeo became unconscious. He was taken to Shanti Mohan Hospital. Doctor examined him and advised them to take him to Mayo Hospital. Deceased was taken to Mayo Hospital and in Mayo hospital, doctor declared him dead. Thereafter complainant lodged report in Police Station, Sadar vide Exhibit 53. (ii) Crime for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code was registered against accused nos. 1 to 4. After investigation, charge-sheet was filed. Charge was framed at Exhibit 22. The prosecution has examined 8 witnesses. Statements of accused were recorded under Section 313 of the Code of Criminal Procedure. Trial Court convicted accused no. 1 Dinesh as stated above and accused no. 2 Nitin Sahare, accused no. 3 Smt. Madhuri Sawale and accused no. 4 Smt. Indira Dhanwate were convicted for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code and sentenced to undergo simple imprisonment till rising of the Court and to pay fine of Rs. 500/- each, in default to undergo further simple imprisonment for one month. All the accused were acquitted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Hence, these appeals by accused no. 1 Dinesh and by complainant. 4. Heard learned Advocate Shri Jaiswal for accused Dinesh. He has submitted that all material witnesses examined by the prosecution are the nearest relatives of complainant. No independent witnesses are examined by the prosecution. The witnesses are interested witnesses, therefore, they cannot be relied on. There is material omission in the evidence of P.W. 2. Statement of P.W. 4 was recorded after 35 days. Evidence of P.W. 2 and P.W. 4 were recorded after one month. Learned Advocate has pointed out First Information Report (FIR) and submitted that full names of accused are not stated in the FIR. Learned Advocate has submitted that deceased was under the influence of liquor and he fell down and sustained injuries. At last, learned Advocate submitted that accused no. 1 has not committed any offence, therefore, prayed to allow the appeal and to acquit the accused. Learned Advocate has submitted that deceased was under the influence of liquor and he fell down and sustained injuries. At last, learned Advocate submitted that accused no. 1 has not committed any offence, therefore, prayed to allow the appeal and to acquit the accused. In support of his submissions, he pointed out following decisions of the Apex Court. (1) Lakshmi Singh and others Vs. State of Bihar, (1976) 4 SCC 394 , (2) Bathula Nagamalleswara Rao and ors. Vs. State represented by Public Prosecutor, (2008) 11 SCC 722 and (3) Kumar Vs. State represented by Inspector of Police, (2018) 7 SCC 536 . 5. Heard learned Advocate Shri Zinzarde for the complainant. He has submitted that all the accused, with common intention killed the deceased, therefore, they are liable to be convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 6. Heard learned Additional Public Prosecutor Mrs. Jachak for the State/respondent. She has supported the arguments advanced by learned Advocate Shri Zinarde. 7. Accused nos. 2 to 4 have not filed appeal against their conviction for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code. 8. Learned Advocate Shri Jaiswal has submitted that witnesses i.e. P.W. 1, P. W. 2 and P.W. 4 are the interested witnesses and, therefore, their testimony cannot be relied on. He has pointed out judgment of the Apex Court in the case of Bathula Nagamalleswara Rao and ors. Vs. State represented by Public Prosecutor (supra). Hon''ble Supreme Court has held as under : "FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the time of trial. Mere relationship of the witnesses cannot be the sole basis to discard or disbelieve their evidence if it is otherwise found to be believable and trustworthy. However, it requires greater care and caution. Court has to address to itself whether there are any infirmities in the evidence of such a witness; whether the evidence is reliable and trustworthy and whether the genesis of the crime unfolded by such an incident is probable or not. However, it requires greater care and caution. Court has to address to itself whether there are any infirmities in the evidence of such a witness; whether the evidence is reliable and trustworthy and whether the genesis of the crime unfolded by such an incident is probable or not. If the evidence of any interested witness or a relative on a careful scrutiny is found to be consistent and trustworthy, free from infirmities or any embellishment there is no reason not to place reliance on the same." 9. Learned Advocate Shri Jaiswal has submitted that names of accused are not mentioned in FIR. We have perused the FIR. Names of accused are mentioned therein. They are neighbours of the complainant. Therefore, there is no question of misidentity. FIR is a short summary of the incident. It cannot be discarded only because full names of accused are not shown. Evidence of P.W. 1, P. W. 2 and P.W. 4 cannot be discarded. Nothing is brought on record in the evidence of P.W. 1 to disbelieve his evidence. The omission pointed out in the examination of P.W. 2 are not material. The reasons for delay in recording statement of P.W. 4 is that her full name and address was not known to the complainant and, therefore, she could not be located at the earliest. During the investigation, Investigating Officer gathered full name and address of P.W. 4 and thereafter recorded her statement. P.W. 4 is an independent witness. She is a friend of one of the member of complainant''s family. She has stated about the incident. Hence, cited decision in the case of Bathula Nagamalleswara Rao and ors. Vs. State represented by Public Prosecutor (supra) is not applicable to the case in hand. 10. Learned Advocate Shri Jaiswal has submitted that accused persons sustained injuries, but prosecution failed to explain injuries on the person of accused, and therefore, case of prosecution is doubtful. In support of his submissions, he pointed out decision in the case of Lakshmi Singh and others Vs. State of Bihar (supra). The Apex Court has held that while appreciating the evidence, if the prosecution fail to explain the injuries caused to the accused, case might be one of private defence and therefore creates doubt about the case of prosecution. It is pertinent to note that defence has failed to prove any injury to the accused no. 1. State of Bihar (supra). The Apex Court has held that while appreciating the evidence, if the prosecution fail to explain the injuries caused to the accused, case might be one of private defence and therefore creates doubt about the case of prosecution. It is pertinent to note that defence has failed to prove any injury to the accused no. 1. P.W. 7 has stated in his evidence that two ladies, namely, accused Indira and Madhuri came to police station and lodged report. He has registered non-cognizable case and thereafter he went to the spot. Learned Advocate has pointed out M.L.C., Exhibit 120 and submitted that accused no. 1 sustained severe injury. We have perused Exhibit 120. It does not show the name of accused no. 1. Therefore, it cannot be said that accused no. 1 sustained any severe injury. Nothing is on record to show that the deceased or any of the prosecution witnesses, namely, P.W. 1, P.W. 2 and P.W. 4 was having any weapons/sticks in their hands. There is no evidence to show that P.W. 1, P.W. 2 and P.W. 4 or deceased caused any injury to any of the accused. Therefore, there is no question of any explanation in respect of injury to the accused. Moreover, injury to the accused no. 1 is not proved. There is nothing on record to show that accused persons sustained any visible injury. Therefore, cited decision in the case of Lakshmi Singh and others Vs. State of Bihar is not applicable to the case in hand. 11. Learned Advocate Shri Jaiswal has pointed out decision in the case of Kumar Vs. State represented by Inspector of Police (supra) and submitted that the prosecution has failed to prove the injury on the person of deceased. Hon''ble Apex Court has held that "generally, failure of prosecution to offer any explanation regarding injuries suffered by accused, shows that evidence of prosecution witnesses relating to incident is not true or at any rate not wholly true. Murder trial herein, admittedly, appellant-accused was also injured in the same occurrence and he too was admitted in hospital. But, prosecution did not produce his medical record, nor doctor was examined on nature of injuries sustained by accused. Trial court, instead of seeking proper explanation from prosecution for injuries sustained by accused, simply believed what prosecution witnesses deposed in one sentence, that accused had sustained simple injuries only. But, prosecution did not produce his medical record, nor doctor was examined on nature of injuries sustained by accused. Trial court, instead of seeking proper explanation from prosecution for injuries sustained by accused, simply believed what prosecution witnesses deposed in one sentence, that accused had sustained simple injuries only. Conviction of appellant, reversed." 12. Learned Advocate Shri Jaiswal has submitted that accused exercised right of private defence. Nothing is on record to show that deceased or P.W. 1 and P.W. 2 were aggressor. They were not having any weapons/sticks etc. The evidence on record shows that accused no. 1 was having stick. Therefore, it cannot be said that accused no. 1 exercised right of private defence. Cited decision is not applicable to the case in hand as defence has failed to prove any injury to the person of any of the accused. 13. Learned Advocate has submitted that deceased fell down under the influence of liquor, sustained injuries and died, therefore, accused cannot be held responsible for the death of deceased. From the perusal of postmortem report, Exhibit 96, it is clear that cause of death was "head injury". In column no. 21, it is mentioned that 20 ml dirty white colour fluid having strong alcoholic smell was present. Nothing is on record to show that deceased was under heavy influence of liquor and, therefore, he fell down and sustained injuries. 14. Evidence of P.W. 1, P.W. 2 and P.W. 4 show that there was quarrel. Deceased Sahadeo was trying to rescue P.W. 1 from the accused. Accused no. 1 gave blow of bamboo stick on the head of deceased and, therefore, deceased sustained injuries and died. There is nothing to disbelieve the evidence of P.W. 1, P.W. 2 and P.W. 4. P.W. 1, P.W. 2 and P.W. 4 are eye witnesses of the incident. Their evidence cannot be discarded only because they are relatives of deceased. Trial Court has rightly come to the conclusion that there was quarrel between P.W. 1 and accused persons. Accused nos. 2, 3 and 4 gave fist blows to the deceased and therefore, they are convicted for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code. Their convictions are not challenged. Trial Court has come to the conclusion that accused no. Accused nos. 2, 3 and 4 gave fist blows to the deceased and therefore, they are convicted for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code. Their convictions are not challenged. Trial Court has come to the conclusion that accused no. 1 had no intention to kill deceased but he was having knowledge that because of the blow by stick, the deceased would have died. Therefore, accused no. 1 is rightly convicted by the trial Court for the offence punishable under Section 304(II) of the Indian Penal Code. 15. Prosecution has recovered the stick from accused no. 1. Seizure panchanama is proved by the panch witnesses. There is nothing on record to show that accused no. 1 had any intention to kill the deceased. Incident took place during quarrel. In a fit of anger, accused no. 1 gave blow of stick. There is nothing on record to show that accused no. 1 or any other accused had beaten deceased with an intention to kill him. The judgment of trial Court is perfectly legal and correct. There is no perversity or illegality in the impugned judgment. Hence, appeals filed by the convicted accused Dinesh Sawale as well as complainant Pankaj Walde are without any merit. In the result, we dismiss both the appeals. 16. Fees of learned Advocate Shri K. B. Zinzarde appointed for the complainant be paid as per rules.