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Allahabad High Court · body

2019 DIGILAW 563 (ALL)

Raju v. State of U. P.

2019-03-01

RAJEEV MISRA, VIKRAM NATH

body2019
ORDER : 1. The four appellants before us, namely, Raju @ Namit Kumar, Manjeet, Mintoo and Narendra Singh stand convicted and sentenced for life imprisonment alongwith fine of Rs. 10,000/- each in S.T. No. 371 of 2010, State vs. Raju @ Namit Kumar and Others under Section 302 I.P.C. read with Section 34 I.P.C. arising out of Case Crime No. 282 of 2010, P.S. Kotwali City, District-Bijnor. In case of default in the payment of fine, the accused-appellants are to further undergo detention for a period of one year. One of the accused-appellant Narendra Singh has been convicted and sentenced for one year rigorous imprisonment along with fine of Rs. 1000/- in S.T. No. 372 of 2010, State vs. Narendra Singh under Section 4/25 Arms Act arising out of Case Crime No. 286 of 2010, P.S., Kotwali City, District-Bijnor. In case of default in the payment of fine, the accused-appellant, Narendra Singh is to further undergo detention for a period of three months. 2. We have heard Mr. Rizwan Ahmad holding brief of Mr. Dileep Kumar, the learned counsel for the appellant in Criminal Appeal No. 4547 of 2012, Raju @ Namit Kumar vs. State and Criminal Appeal No. 3745 of 2012, Manjeet and Another vs. State, Mr. Birendra Kumar Pal, Advocate holding brief of Deepak Kumar Pal, learned counsel for the appellant in Criminal Appeal No. 4024 of 2012, Narendra Singh vs. State. Mr. Arunendra Kumar Singh, the learned A.G.A. assisted by Mr. Pradeep Kumar Sahi brief holder and Mr. Prashant Kumar Singh, A.G.A. for the State-respondent and Mr. Vivek Kumar Singh the learned counsel for the complainant. 3. The paper books in these appeals have not been prepared by the Office. However, learned counsels for the appellants, the learned A.G.A. and Mr. Vivek Kumar Singh, the learned counsel for the complainant have agreed to the hearing of the present criminal appeals as according to them the issue involved in these criminal appeals is a very short one and the appeals can be heard on the basis of the record, which is already available. Accordingly, we permitted the counsel for the respective parties to peruse the original record. Thereafter, the Court has proceeded to hear the present criminal appeals with the aid of the original record itself. 4. Accordingly, we permitted the counsel for the respective parties to peruse the original record. Thereafter, the Court has proceeded to hear the present criminal appeals with the aid of the original record itself. 4. Abhai Saxena the first informant (PW-1) submitted the written report dated 13.03.2010 at P.S. Kotwali City, District-Bijnor regarding an occurrence which took place at 7.30 P.M. at Kohli Hotel, Barrage Road, Bijnor leading to the death of one Harsh-Vardhan. The written report dated 13.03.2010 was written by one Hitesh Bishnoi. 5. As per the written report dated 13.03.2010, the occurrence giving rise to the present criminal proceedings is alleged to have occurred on 13.03.2010 at 7.30 P.M. at Kohli Hotel near the Barrage situate in City and District-Bijnor. The written report goes to state that four persons namely Abhai Saxena, Vikas Kumar, Ankur and Harshvardhan were traveling in a Santro Car bearing No. UP-21-Z-9499, from Meerut to Bijnor. At around 7.30 PM, they reached Kohli Hotel near the Barrage Situate in City and District Bijnor. They are said to have halted at the aforesaid Hotel to purchase water bottle. The written report further states that after the said purchase had been made and the payment was also made, the Hotel owner, namely Raju @ Namit Kumar returned deficient amount. He is thereafter said to be in rage. Immediately, the Hotel Owner, Raju @ Namit Kumar S/o Shanti Swaroop Thakur, R/o 444, Bai Basti Bijnor armed with knife, Narendra Jat, R/o Bijnor armed with Knife and two other persons armed with Lathi and Danda badly assaulted the co-passenger Harshvardhan. The injured Harshvardhan was then taken to Police Station, Kotwali City from where he was taken to Hospital, but was referred to Meerut for better treatment. He was being taken to Meerut, but succumbed to his injuries on way to Meerut. The written report thus gave a brief but clear account of the occurrence. 6. Upon submission of the aforesaid written report dated 13.03.2010, PW-5, Head Constable Rajendra Singh entered the same in the General Diary. He thereafter scribed the Check F.I.R. dated 13.03.2010 (Ext. He was being taken to Meerut, but succumbed to his injuries on way to Meerut. The written report thus gave a brief but clear account of the occurrence. 6. Upon submission of the aforesaid written report dated 13.03.2010, PW-5, Head Constable Rajendra Singh entered the same in the General Diary. He thereafter scribed the Check F.I.R. dated 13.03.2010 (Ext. Ka.-1) and was registered as Case Crime No. 282 of 2010, under Sections 147, 148, 149, 302 I.P.C. The Check F.I.R. contains a categorical recital regarding the names of the four accused, who have been nominated by name, namely, Raju @ Namit Kumar, Narendra Jat, Manjeet and Mintoo sons of Nazar, the date, time and place of occurrence, the date and time of lodging of the F.I.R., the description of the first informant, the distance between the Police-Station and the place of occurrence as well as the manner of occurrence in a very concise but crisp manner. 7. After the lodging of the F.I.R. dated 13.03.2010 (Ext. Ka.-1), the Police of Police Station Kotwali City, District-Bijnor came into motion. PW-7, Station House Officer, P.S. Kotwali City, District Bijnor, namely, Gurdeep Singh Grewal the Investigating Officer commenced the investigation of the aforesaid case crime number. He entered the written report as well as the F.I.R. in the case diary. Having completed the aforesaid formality which is required to be done by an Investigating Officer before proceeding with the investigation, he then visited the place of occurrence on the same date, i.e. 13.03.2010 and recorded the statement of the first informant Abhai Saxena followed by the statements of the witnesses mentioned in the F.I.R. namely Vikas Kumar and Ankur in terms of section 161 Cr. P.C. He thereafter recorded the statement of the scribe of the F.I.R. namely H.C. 12 Rajendra Singh, P.S. Kotwali, District Bijnor. Having recorded the statement of the aforesaid witnesses, the I.O. examined the place of occurrence and prepared the site plan dated 14.3.2010 (Ext. Ka-15). He incorporated the inspection note in the C.D. on the same day. 8. PW-6, S.I. Sanjay Kumar Singh was posted as Sub-Inspector at Kotwali City on 13.03.2010, which is the date of occurrence. He reached District Hospital Bijnor where the dead body of the deceased was lying, i.e., the place where the dead body of the deceased was kept after he succumbed to the injuries on way to Meerut. 8. PW-6, S.I. Sanjay Kumar Singh was posted as Sub-Inspector at Kotwali City on 13.03.2010, which is the date of occurrence. He reached District Hospital Bijnor where the dead body of the deceased was lying, i.e., the place where the dead body of the deceased was kept after he succumbed to the injuries on way to Meerut. He appointed the Panch Witnesses, namely, Amit S/o Anil Kumar Sharma (2) Sudhir Kumar Sharma S/o Raj Narain Sharma (3) D.R. Mahaveer Singh Tyagi (4) Mahendra Sharma S/o Dev Sharma (5) Pankaj Tyagi S/o Om Kailash Tyagi. In the opinion of the Panch Witnesses, the nature of the death of the deceased was characterized as Homicidal. This witness thereafter prepared the Inquest Report dated 14.03.2010 in his own handwriting. The aforesaid Inquest Report records that the Inquest proceedings were conducted at District Hospital-Bijnor. The inquest commenced at 23.30 on 13.03.2010 and concluded at 00.15 AM of 14.03.2010. The inquest report further records that the distance from the District Hospital to the Police Station is one and a half kilometer. It also records the details of the case crime number in which the said inquest was prepared. 9. This witness (PW-6), S.I. Sanjay Kumar Singh got the dead body of the deceased packed and sealed. Thereafter he prepared the detailed police scroll for getting the post-mortem of the body of the deceased. He accordingly prepared:- (1) Ext. Ka.-8 is the Police Form No. 13 dated 14.03.2010 prepared by PW-6, S.I. Sanjay Kumar Singh. It details that the dead body of the deceased was duly sealed and then sent for post-mortem in the custody of the police constables whose names have been mentioned therein. (2) Ext. Ka.-9 is the Police Form No. 33 dated 14.03.2010 prepared by PW-6, S.I. Sanjay Kumar Singh whereby a request was made to the C.M.O. Bijnor to get the post-mortem of the dead body of the deceased, namely, Harshvardhan. (3) Ext. Ka.-10 is the letter dated 14.03.2010 prepared by PW- 6, S.I. Sanjay Kumar Singh and addressed to the Reserve Inspector, Police Line, Bijnor to get the postmortem of the dead body of the deceased conducted. (4) Ext. Ka.-11 is the letter dated 14.03.2010 prepared by PW-6, S.I. Sanjay Kumar Singh and addressed to the C. M.O., District Bijnor to get the postmortem of the dead body of the deceased conducted and consequently, submits the postmortem report. (5) Ext. (4) Ext. Ka.-11 is the letter dated 14.03.2010 prepared by PW-6, S.I. Sanjay Kumar Singh and addressed to the C. M.O., District Bijnor to get the postmortem of the dead body of the deceased conducted and consequently, submits the postmortem report. (5) Ext. Ka.-12 is the Police Form No. 379 dated 14.03.2010, which is the photograph of the dead body of the deceased. (6) Ext. Ka.-13 is Memo of the Seal affixed on the dead body of the deceased and prepared on 14.03.2010 by PW-6, S.I. Sanjay Kumar Singh. 10. PW-4, Dr. Bhoraj Singh is the Doctor who conducted the Post Mortem of the body of the deceased. In the opinion of this Doctor the cause of death of the deceased was shock and haemorrhage as a result of Ante-Mortem Injuries. The ante-mortem injuries found on the body of the deceased have been detailed in the post-mortem report as follows: (1) Incised wound over left eyebrow measuring 2 cm. x 0.2 cm. (2) Incised wound over root of the neck on leg side measuring 2.5 cm. x 0.5 cm. 7 cm. below left ear cavity deep with major vessels cut. (3) Contusion over left side of face measuring 7 cm. x 3 cm. cut with left black eye. (4) Linear abrasion over top part of left shoulder 5 cm. x 2 cm. (5) Contusion over dorsum of left arm 7 cm. x 5 cm. (6) Contusion over anteromedial aspect of upper part of right arm 12 cm. x 8 cm (7) Contusion over upper back on right side 8 cm. x 3 cm. covering scapular area. (8) Incised wound over left parietal area of scalp measuring 3.5 cm. x 1 cm. 10 cm. above and behind left ear. (9) Contusion over anterolateral area of lower chest and upper abdomen measuring 10 cm. x 2 cm. 10 cm. below nipple. (10) Two oval abrasion over back of right elbow .5 cm. in radius and 3.5 cm. apart from each other. 11. Dr. Bhojraj Singh, while conducting the autopsy on the body of the deceased, further recovered certain articles from the same. The same were handed over to the constables concerned, namely, C/126 Sahesar Pal and Constable C/1179 (who had taken the dead body of the deceased for postmortem) after the body of the deceased was sealed upon completion of the Post-Mortem. The recovered articles are as follows:- (1) Bushirt. The same were handed over to the constables concerned, namely, C/126 Sahesar Pal and Constable C/1179 (who had taken the dead body of the deceased for postmortem) after the body of the deceased was sealed upon completion of the Post-Mortem. The recovered articles are as follows:- (1) Bushirt. (2) Vest (3) Pant (4) Underwear (5) A copper ring with some stone embedded in it. (6) Belt. 12. After having got the basic formalities of investigation completed, the Investigating Officer, PW-7, S.H.O. P.S. Kotwali City, District Bijnor, namely, Gurdeep Singh Gerwal further proceeded with the investigation of the case and also to secure the custody of the accused as the offence alleged to have been committed by them was both cognizable and non-bailable. 13. On the next date i.e. 14.3.2010, the Investigating Officer (PW-7) Gurdeep Singh Gerwal received information from the police informer regarding the presence of three of the named accused namely Mintoo, Manjeet and Raju alias Namit Kumar at the Barrage where they were waiting for a bus to Meerut in order to evade their arrest. Immediately, this Investigating Officer along with the police informer reached the aforesaid place. The informer pointed at the above mentioned three accused who were sitting just before the Toll Tax Barrier and then left. The police party approached the accused persons but looking at the police, the aforesaid accused started to flee. However, they were over powered and consequently arrested. Upon arrest, these accused disclosed the names as Mintoo, Manjeet and Raju alias Namit Kumar and also their identity. The I.O. thereafter, recorded their statements. 14. On 15.03.2010, PW-7, Gurdeep Singh Gerwal, S.H.O. P.S. Kotwali City, District- Bijnor proceeded alongwith police force to secure the arrest of the accused vide Report No. 23 (Ext. Ka.-6). He is said to have received information from the police informant regarding the presence of one of the accused Narendra Jat, who was said to be standing near Baishnav Bihar Colony, Barrage Road, City and District-Bijnor. On this information, the Investigating Officer proceeded to Baishnav Bihar Colony, Barrage Road, City and District-Bijnor, to secure the arrest of the aforesaid accused. The police informer pointed at the accused Narendra Jat, who was standing at the gate of Baishnav Bihar Colony, Barrage Road, City and District-Bijnor. Seeing the police party, the accused Narendra Singh started to flee but was overpowered with some little difficulty at 7.15 AM. The police informer pointed at the accused Narendra Jat, who was standing at the gate of Baishnav Bihar Colony, Barrage Road, City and District-Bijnor. Seeing the police party, the accused Narendra Singh started to flee but was overpowered with some little difficulty at 7.15 AM. Upon arrest, this accused disclosed his identity and address. The Investigating Officer also recovered a knife from the person of this accused. The accused could not show any document to possess the recovered knife. He is further said to have confessed the use of the recovered knife in the commission of the offence. The recovered knife was placed in a white cloth and sealed. Accordingly, a Memo dated 15.03.2010 (Ext. Ka.-14) regarding the arrest of the accused Narendra Singh and the recovery of the knife from the person of Narendra Singh on 15.03.2010 was prepared by the Investigating Officer. The same is witnessed by Constable Sachin Verma and Constable Hargovind Singh. Thereafter, the statement of this accused was also recorded. 15. As a consequence of the aforesaid PW-7, Gurdeep Singh Grewal, S.H.O. P.S. Kotwali City, District Bijnor lodged the F.I.R. Dated 15.03.2010 (Ext. Ka.-5) at the aforesaid Police Station regarding the above mentioned occurrence. The same was registered as Case Crime No. 286 of 2010, Under Section 4/25 Arms Act. 16. The recovered knife was thereafter sent to the Forensic Science Laboratory, Agra for Forensic Examination. The Scientific Officer, Forensic Science Laboratory, Agra submitted the forensic report dated 01.01.2011 (Ext. Ka.-1, Ka. 17) and confirmed that the blood stains found on the recovered knife are of human blood. 17. After the lodging of the F.I.R. dated 15.03.2010 (Ext. Ka.-5), the Investigating Officer PW-7, Gurdeep Singh Grewal, S.H.O. P.S. Kotwali City and District-Bijnor entered the recovery/arrest memo dated 15.03.2010 (Ext. Ka.-14) in the case diary. He thereafter recorded the statement of the arrested accused Narendra Singh followed by his own statement and the scribe of the F.I.R. dated 15.03.2010 (PW-5) H.M. 12, Rajendra Singh. He further recorded the statements of some of the witnesses of arrest/recovery dated 15.03.2010 (Ext. Ka.-14), namely, Satyapal Singh, C 360 Sachin Saxena. He also prepared the Site Plan of the place of occurrence, which is dated 14.03.2010 (Ext. Ka.-18). 18. PW-8, S.I. Vijay Pal Singh completed the investigation of case No. 286 of 2010 under Section 4/25 Arms Act, P.S. Kotwali City, District-Bijnor on 16.03.2010. Ka.-14), namely, Satyapal Singh, C 360 Sachin Saxena. He also prepared the Site Plan of the place of occurrence, which is dated 14.03.2010 (Ext. Ka.-18). 18. PW-8, S.I. Vijay Pal Singh completed the investigation of case No. 286 of 2010 under Section 4/25 Arms Act, P.S. Kotwali City, District-Bijnor on 16.03.2010. On the strength of the material collected by him during the course of investigation he formed an opinion that a charge-sheet should be filed. Accordingly, he submitted the charge-sheet dated 16.03.2010 (Ext. Ka. 19) calling upon the accused Narendera Singh to answer the charge under Section 4/28 Arms Act. In the aforesaid charge-sheet as many as six witnesses were nominated. Upon the submission of the aforesaid charge-sheet dated 16.03.2010, cognizance was taken by the C.J.M. Bijnor. Thereafter the C.J.M. Bijnor committed the case to the court of Sessions vide committal order dated 05.07.2010. Accordingly, S.T. No. 372 of 2010, State vs. Narendra Singh came to be registered in the court of the Sessions Judge, Bijnor. 19. Ultimately PW-7, S.H.O. Gurdeep Singh Gerwal, concluded the investigation of Case Crime No. 282 of 2010 under Sections 147, 148, 149 and 302 I.P.C. P.S. Kotwali City, District-Bijnor on 25.04.2010. On the basis of the material collected during the course of investigation this Investigating Officer formed the opinion that a charge-sheet should be submitted against the named accused, namely, Raju @ Namit Kumar, Narendra Jat, Manjeet Singh and Mintoo S/o Nazar. He accordingly charge-sheeted the aforesaid accused under Section 302 I.P.C. only as no offence punishable under Sections 147, 148, 149 I.P.C. was found to have been committed by them. As such, the charge-sheet dated 25.04.2010 (Ext. Ka.-16) was submitted by this witness, i.e. PW-7, calling upon the accused appellants to answer the charge under Section 302 I.P.C. 20. Upon the submission of the aforesaid charge-sheet dated 25.04.2010, cognizance was taken upon the same by the C.J.M. Bijnor, vide order dated 24.05.2010. Thereafter, the case was committed to the Court of Sessions, vide Committal order dated 05.07.2010. As a consequence of the aforesaid, S.T. No. 371 of 2010, State vs. Raju @ Namit Kumar and Others arising out of Case Crime No. 282 of 2010, P.S. Kotwali City, District-Bijnor, came to be registered in the Court of the Sessions Judge, Bijnor. 21. Thereafter, the case was committed to the Court of Sessions, vide Committal order dated 05.07.2010. As a consequence of the aforesaid, S.T. No. 371 of 2010, State vs. Raju @ Namit Kumar and Others arising out of Case Crime No. 282 of 2010, P.S. Kotwali City, District-Bijnor, came to be registered in the Court of the Sessions Judge, Bijnor. 21. On 27.07.2010, the court below framed charges against the accused under Section 302/34 I.P.C. Thereafter, vide Memorandum dated 27.07.2010, the court below declared that sufficient grounds exist to frame charge under Section 4/25 Arms Act against one of the co-accused, namely, Narendra Singh. It, accordingly, opined to frame charge under Section 4/25 Arms Act also against the aforesaid accused only. Ultimately, under order dated 27.07.2010 passed in S.T. No. 372 of 2010, State vs. Narendra Singh charge under Section 4/25 Arms Act was framed against the co-accused Narendra Singh. 22. The accused-appellants denied the charges so framed and demanded trial. Consequently, the burden fell upon the prosecution to lead the prosecution evidence first to bring home the charges alleged against the accused-appellants. 23. It may be noticed here that both the Sessions Trial were consolidated together and tried together as they relate to the same occurrence and the same accused. Therefore, the prosecution evidence in both the sessions trial is common. 24. The trial commenced. Though the charge-sheet in Case Crime No. 282 of 2010 under Sections 147, 148, 149 and 302 I.P.C. nominated as many as 15 witnesses, the prosecution adduced only nine prosecution witnesses. 25. PW-1, Abhai Saxena is the first informant. He submitted the written report dated 13.03.2010, which was written in the handwriting of Hitesh Bishnoi. He has proved the F.I.R. dated 13.03.2010 (Ext. Ka.-3). This witness alongwith other co-passengers, namely, Harshvardhan (deceased), PW-2 Vikas Kumar and PW-3 Ankur were travelling together in Santro Car No. UP-21-Z-9499 and were going from Meerut to Bijnor. This witness has categorically detailed the entire chain of events starting from their journey from Meerut to Bijnor, the halting at Kohli Hotel, the manner of the occurrence with precise details, the subsequent events which followed the occurrence, the death of the co-passenger Harshvardhan (deceased) and ultimately, the submission of the written report dated 13.03.2010 leading to the registration of the F.I.R. 26. This witness was cross-examined in detail by the defence. His cross-examination runs into as many as ten pages. This witness was cross-examined in detail by the defence. His cross-examination runs into as many as ten pages. However, we find that this witness remained consistent throughout and the defence could not cull out any such fact from this witness which could dislodge his testimony nor the defence could contradict him with the previous part of his statement or with the statement of this witness recorded under Section 161 Cr.P.C. making his testimony unworthy of trust. Thus the testimony of this witness regarding the ocular version of the occurrence was beyond any doubt, specific and devoid of any exaggeration, embellishment or contradiction. 27. PW-2 Vikas Kumar was also a co-passenger alongwith PW-1, Abhai Saxena (first informant), PW-3 Ankur Tyagi and Harshvardhan the deceased. This witness in his testimony has also detailed the events as to how all the aforesaid four persons reached Kohli Hotel, the manner of occurrence, the consequential action taken upon the happening of the incident and ultimately, the death of the deceased. This witness was also cross-examined but the prosecution could not dislodge him. As such, the testimony of this witness remains intact which is almost similar to the testimony of PW-1, Abhai Saxena. 28. PW-3, Ankur Tyagi is also a co-passenger alongwith Harshvardhan (deceased), PW-2 Vikas Kumar and PW-1, Abhai Saxena, the first informant in Santro Car No. U.P. 21-Z-9499. This witness has also described the entire event starting from their journey from Meerut to Bijnor, the stoppage at Kohli Hotel, the purchase of the water bottle, the scuffle that took place after the purchase of water bottle leading to the assault on co-passenger Harshvardhan, the taking of the injured-Harshvardhan to the Hospital and ultimately the death of the injured Harshvardhan. He has proved the manner of occurrence. His testimony is lucid, chronological and natural as well as similar to the testimony of PW-1 and PW-2. This witness was also cross examined in detail. However, the defence miserably failed to dislodge him nor could the defence contradict him with the previous part of his statement nor his own previous statement. As such, his testimony is credible, reliable and worthy of trust. 29. PW-4, Dr. Bhojraj Singh is the Doctor, who conducted the postmortem of the body of the deceased. He prepared the post-mortem report dated 14.03.2010 (Ext. Ka.-2) and proved the same. As such, his testimony is credible, reliable and worthy of trust. 29. PW-4, Dr. Bhojraj Singh is the Doctor, who conducted the postmortem of the body of the deceased. He prepared the post-mortem report dated 14.03.2010 (Ext. Ka.-2) and proved the same. While conducting the autopsy on the body of the deceased, this witness recovered certain articles from the same, i.e. Bushirt, Vest, Belt, Pant, Underwear and a copper ring with some stone embedded in it (which were marked as Material Exhibits). His testimony further corroborated the ante-mortem injuries found on the body of the deceased as detailed in the postmortem report as well as the timing of the occurrence. The prosecution failed to dislodge this witness even when he was cross-examined regarding the nature of injuries and the happening of the occurrence. 30. PW-5, H.M. 12, Rajendra Singh is the scribe of the Check F.I.R. dated 13.03.2010 (Ext. Ka.-1). He has proved the Check F.I.R. dated 13.03.2010 (Ext. Ka.-3) as well as the written report dated 13.03.2010 (Ext. Ka.-1). He has also proved G.D. entry of the F.I.R. dated 13.03.2010 (Ext. Ka.-4). The F.I.R. dated 15.03.2010 (Ext. Ka.-5) was also scribed by him and he proved the same. He also proved the carbon copy of the G.D. entry of the F.I.R. dated 15.03.2010, which is Ext. Ka.-6. This witness was also cross-examined by the defence. However, his testimony could not be dislodged and consequently, the documents proved by him have been marked as exhibits. 31. PW-6, Sanjay Kumar Singh was posted as Sub-Inspector at Kotwali City, District- Bijnor on 13.03.2010. He got the Panchayatnama/ Inquest of the deceased conducted on 13.03.2010. He proved the Inquest Report dated 14.03.2010 (Ext. Ka.-7). He also prepared the detailed Police Scroll, i.e. Ext. Ka.-8, which is the Police Form No. 13 dated 14.03.2010. It details that the dead body of the deceased was duly packed and sealed and then sent for post-mortem in the custody of the police constables whose names have been mentioned therein. (Ext. Ka.-9) the Police Form No. 33 dated 14.03.2010 whereby a request was made to the C.M.O. Bijnor to get the post-mortem of the dead body of the deceased, namely, Harshvardhan conducted. (Ext. Ka.-10) is the letter dated 14.03.2010 addressed to the Reserve Inspector, Police Line, Bijnor to get the postmortem of the dead body of the deceased conducted. (Ext. (Ext. Ka.-9) the Police Form No. 33 dated 14.03.2010 whereby a request was made to the C.M.O. Bijnor to get the post-mortem of the dead body of the deceased, namely, Harshvardhan conducted. (Ext. Ka.-10) is the letter dated 14.03.2010 addressed to the Reserve Inspector, Police Line, Bijnor to get the postmortem of the dead body of the deceased conducted. (Ext. Ka.-11) is the letter dated 14.03.2010 addressed to the C.M.O. District Bijnor to get the postmortem of the dead body of the deceased conducted and consequently, submits the postmortem report. (Ext. Ka.-12) is the Police Form No. 379 dated 14.03.2010, which is the photograph of the dead body of the deceased. (Ext. Ka.-13) is the Memo of the Seal affixed on the dead body of the deceased and prepared on 14.03.2010. This witness also prepared (Ext. Ka.-18), which is the site Plan dated 16.09.2010 regarding the place of occurrence in relation to Case Crime No. 286 of 2010 under Section 4/25 Arms Act. The same was also proved by him. He further submitted (Ext. Ka.-19), which is the charge-sheet dated 16.03.2010 submitted by this witness in Case Crime No. 286 of 2010 under Section 4/25 Arms Act against the named accused Narendra Singh. The same was also proved by him. 32. PW-7 Gurdeep Singh Grewal is the S.H.O. of Police-Station Kotwali City, District- Bijnor. This witness is the Investigating Officer of Case Crime Number originating from the F.I.R. dated 13.03.2010 (Ext. Ka.-1). He prepared the Site Plan of the place of occurrence in relation to Case Crime No. 282 of 2010 under Sections 147, 148, 149 and 302 I.P.C. on 14.03.2010 (Ext. Ka.-15) and proved the same. He also sent the knife recovered from the person of one of the accused Narendra Singh to the Forensic Science Laboratory, Agra for Forensic Examination. He also produced the recovered knife before the court below alongwith the other articles which were recovered by the Doctor at the time of conducting the autopsy on the body of the deceased. The same were duly marked as Material Exhibits 1 to 7. He arrested three of the named accused, namely, Mintoo, Manjeet and Raju @ Namit Kumar on 14.03.2010. This witness upon inspection of the place of occurrence duly prepared the inspection note and entered the same in the case diary. The same were duly marked as Material Exhibits 1 to 7. He arrested three of the named accused, namely, Mintoo, Manjeet and Raju @ Namit Kumar on 14.03.2010. This witness upon inspection of the place of occurrence duly prepared the inspection note and entered the same in the case diary. He has further recorded the statements of various witnesses in terms of Section 161 Cr.P.C. to ascertain the true nature of the occurrence. Ultimately, this witness submitted the charge-sheet dated 25.04.2010 (Ext. Ka.-16) against all the named accused under Section 302 I.P.C. only. He has also proved the charge-sheet. 33. The defence has cross-examined this witness in detail but could not dislodge him. The witness has remained consistent throughout and the prosecution could not point out any contradiction in his statement so as to doubt the credibility/reliability of this witness and consequently his testimony. 34. PW-8 is Sub Inspector, Vijay Pal Singh. He is the Investigating Officer of Case Crime No. 286 of 2010 under Section 4/25 Arms Act, P.S. Kotwali City, District-Bijnor. This witness investigated the aforesaid Case Crime Number and ultimately, submitted the charge-sheet dated 16.03.2010 (Ext. Ka.-19), which has been proved by him. This witness was cross-examined by the defence counsel but nothing could be extracted from this witness so as to doubt his testimony. 35. PW-6, Amit Kumar Garg is a friend of Harshvardhan and had met Harshvardhan at Kohli Hotel Barrage Road, District-Bijnor on the fateful day. This witness is not a chance witness. His presence at the place of occurrence is as per the fixed plan, which is evident from the testimony of this witness. This witness accordingly witnessed the entire occurrence, which took place at Kohli Hotel, Barrage Road, Bijnor in which the Harshvardhan was badly assaulted and thus received multiple injuries. This witness has categorically detailed the entire occurrence and the circumstances leading to the death of the Harshvardhan. This witness was cross-examined. During the course of cross- examination this witness has remained consistent throughout and his testimony is almost similar to the testimony of the other two prosecution witnesses of fact. The defence could not dislodge this witness. 36. The prosecution has also relied upon the following Material Exhibits which were duly produced before the court-below: (I) M. Ext. 1-Knife. 1. II. M. Ext. 2-Pant. 2. III. M. Ext. 3-Bushirt. 3. IV. M. Ext. 4-Underwear 4. V. M. Ext. 5-Vest. 5. The defence could not dislodge this witness. 36. The prosecution has also relied upon the following Material Exhibits which were duly produced before the court-below: (I) M. Ext. 1-Knife. 1. II. M. Ext. 2-Pant. 2. III. M. Ext. 3-Bushirt. 3. IV. M. Ext. 4-Underwear 4. V. M. Ext. 5-Vest. 5. VII. M. Ext. 6-Ring. 6. VIII. M. Ext. 7-Belt. 37. Apart from adducing the aforesaid prosecution witness and material exhibits, the prosecution also relied upon documentary evidence which were duly filed. The same were admitted/proved. The same was accepted and proved. As such, they were marked as Exhibits in terms of Rule 27 of the General Rules Criminal. The same are detailed herein below: (i) (Ext. Ka.-1) is the written report dated 13.03.2010 submitted by PW-Abhai Saxena. On the basis of the written report, the F.I.R. dated 13.03.2010 was registered as Case Crime No. 282 of 2010, under Sections 147, 148, 149 and 302 I.P.C. The same was proved by PW-5, Head Constable Rajendra Singh. (ii) (Ext. Ka. 2) is the postmortem report dated 06.06.2011 prepared by PW-4 Dr. Bhojraj Singh regarding the autopsy conducted on the body of the deceased. The same was proved by PW-5, Head Constable Rajendra Singh. (iii) (Ext. Ka.-3) is the Check F.I.R. dated 08.08.2011 lodged by PW-1, Abhai Saxena. H. M. 12, Rajendra Singh (PW-5) is the scribe of the aforesaid F.I.R. and he has proved the same. (iv) (Ext. Ka.-4) is the Carbon Copy of the General Diary relating to Report No. 74 dated 13.03.2010. The same was proved by PW-5 H.M.-12, Rajendra Singh. (v) (Ext. Ka.-5) is the Check F.I.R. dated 15.03.2010 lodged by Gurdeep Singh Grewal, S.H.O. Police Station Kotwali City, District-Bijnor. The same was registered as Case Crime No. 286 of 2010 under Section 4/25 Arms Act, P.S. Kotwali City, District-Bijnor. PW-5, Head Constable, Rajendra Singh. is the scribe of the F.I.R. The same was proved by PW-5, Head Constable, Rajendra Singh. (vi) (Ext. Ka.-6) is the Carbon Copy of the Report No. 23 dated 15.03.2010 entered in the General Diary of P.S. Kotwali City, District-Bijnor. The same was scribed by PW-5, Head Constable, Rajendra Singh and also proved by him. (vii) (Ext. Ka.-7) is the Inquest Report/Panchyatnama of the deceased dated 14.03.2010. The same was prepared by PW-6, S.I. Sanjay Kumar Singh and proved by him. (viii) (Ext. The same was scribed by PW-5, Head Constable, Rajendra Singh and also proved by him. (vii) (Ext. Ka.-7) is the Inquest Report/Panchyatnama of the deceased dated 14.03.2010. The same was prepared by PW-6, S.I. Sanjay Kumar Singh and proved by him. (viii) (Ext. Ka.-8) is the Police Form No. 13 dated 14.03.2010 prepared by PW-6, S.I. Sanjay Kumar Singh. It details that the dead body of the deceased was duly sealed and then sent for postmortem in the custody of the police constables whose names have been mentioned therein. (ix) (Ext. Ka.-9) is the Police Form No. 33 dated 14.03.2010 prepared by PW-6, S.I. Sanjay Kumar Singh whereby a request was made to the C.M.O. Bijnor to get the post-mortem of the dead body of the deceased, namely, Harshvardhan conducted. (x) (Ext. Ka.-10) is the letter dated 14.03.2010 prepared by PW-6, S.I. Sanjay Kumar Singh and addressed to the Reserve Inspector, Police Line, Bijnor to get the postmortem of the dead body of the deceased conducted. (xi) (Ext. Ka.-11) is the letter dated 14.03.2010 prepared by PW-6, S.I. Sanjay Kumar Singh and addressed to the C. M.O., District Bijnor to get the postmortem of the dead body of the deceased conducted and consequently, submits the postmortem report. (xii) (Ext. Ka.-12) is the Police Form No. 379 dated 14.03.2010, which is the photograph of the dead body of the deceased. (xiii) (Ext. Ka.-13) is Memo of the Seal affixed on the dead body of the deceased and prepared on 14.03.2010 by PW-6, S.I. Sanjay Kumar Singh. (xiv) (Ext. Ka.-14) is the Arrest Memo of accused-Narendra Singh on 15.03.2010. Arrest Memo further recites that PW-6, S.I. Sanjay Kumar Singh recovered from his person a knife. On enquiry, the accused is alleged to have confessed the use of the same in the commission of the crime in question. The said Arrest Memo was witnessed by Constable Sachin Sharm, Govind Singh and others. (xv) (Ext. Ka.-15) is the site Plan dated 14.03.2010 prepared by PW-7, SHO Gurdeep Singh Grewal. The same was proved by PW-7, S.H.O. Gurdeep Singh Grewal. (xvi) (Ext. Ka.-16) is the charge-sheet dated 25.04.2010 submitted by PW-7, S.H.O. Gurdeep Singh Grewal against the named accused U/S. 302 I.P.C. in Case Crime No. 282 of 2010. The same was proved by PW-7, S.H.O. Gurdeep Singh Grewal. (xvii) (Ext. The same was proved by PW-7, S.H.O. Gurdeep Singh Grewal. (xvi) (Ext. Ka.-16) is the charge-sheet dated 25.04.2010 submitted by PW-7, S.H.O. Gurdeep Singh Grewal against the named accused U/S. 302 I.P.C. in Case Crime No. 282 of 2010. The same was proved by PW-7, S.H.O. Gurdeep Singh Grewal. (xvii) (Ext. Ka.-17) is the report of the Forensic Laboratory dated 14.12.2011 regarding the knife recovered from the accused-appellant Narendra Singh. The same was proved by PW-7, S.H.O. Gurdeep Singh Grewal. The knife was also produced before the Court by this witness and was marked as Material Exhibit No. 1. (xviii) (Ext. Ka.-18) is the site Plan dated 16.09.2010 prepared by S.I. Vijay Pal Singh in Case Crime No. 286 of 2010 under Section 4/25 Arms Act. The same was proved by PW-8, S.I. Kishan Pal Singh. (xix) (Ext. Ka.-19) is the charge-sheet dated 16.03.2010 submitted by PW-8, S.I. Vijay Pal Singh in Case Crime No. 286 of 2010 under Section 4/25 Arms Act against the named accused Narendra Singh. The same was proved by PW-8, S.I. Kishan Pal Singh. 38. After the prosecution evidence was over all the incriminating materials and adverse circumstances were placed before the accused persons one by one for their version as per Section 313 Cr.P.C. All the accused persons denied the questions put to them by repeatedly saying that it is false, they have nothing to say, the documentary evidence has been wrongly proved or they have no knowledge. Thus all the accused persons gave an evasive reply without disclosing their defence in proof of their innocence nor they came out with their version of the occurrence. Thus the only version of the occurrence to be examined by the court-below was the prosecution version. 39. The court-below heard the counsel for the parties at length and in detail. It took note of the documentary evidence as well as the Material Exhibits on record, the oral testimony of the prosecution witnesses and evaluated the same in the light of the following propositions (1) Credibility/Reliability of the eye-witnesses and whether their testimony is worthy of trust. (2) Whether the presence of the prosecution witnesses of fact, namely, PW-1, PW-2 and PW-3 is established at the time and place of occurrence beyond doubt and they have witnessed the occurrence. (3) Whether in the light of the circumstantial evidence, the prosecution case is probable or not. (2) Whether the presence of the prosecution witnesses of fact, namely, PW-1, PW-2 and PW-3 is established at the time and place of occurrence beyond doubt and they have witnessed the occurrence. (3) Whether in the light of the circumstantial evidence, the prosecution case is probable or not. (4) The medical evidence supports the prosecution case/ocular version as it has material bearing in deciding a case based upon direct evidence or not. (5) The injuries found on the body of the deceased stand corroborated by the testimony of PW-4 Dr. Bhojraj Singh, the Doctor who conducted the autopsy on the body of the deceased and the description given in the post-mortem report. (6) The identification of the accused is proved or not. (7) The motive, if any, on the part of the accused to commit the crime. 40. The innocence of the accused-appellants before the court below was sought to be established by laying a challenge to the truthfulness of the prosecution case by pointing out the following circumstances, which according to the accused-appellants make the prosecution case doubtful. 41. The F.I.R. dated 13.03.2010 (Ext. Ka.-3), which has been lodged by the first informant, Abhai Saxena (PW-1) has been ultimately drafted on the opinion of the Police. It, therefore, does not in any manner reflect the truth. Consequently, the prosecution case as unfolded in the F.I.R. is liable to be disbelieved. 42. The motive alleged against the accused for committing the crime is wholly unbelievable and therefore it cannot be believed that there was any motive on the part of the accused appellants to commit the crime. 43. The place of occurrence as alleged by the prosecution is wholly unbelievable as the testimony of PW-2 and PW-3 in this regard itself makes the place of occurrence doubtful. 44. The Inquest of the deceased conducted on 13.03.2010 is itself illegal which makes the prosecution story doubtful. 45. From the body of the deceased 300gm of semi digested food was recovered. However, no evidence has come in the testimony of any prosecution witness as to whether the deceased had taken his meal from 6.00 PM upto the time of occurrence. As such, the occurrence shown in the F.I.R. is doubtful. 46. 45. From the body of the deceased 300gm of semi digested food was recovered. However, no evidence has come in the testimony of any prosecution witness as to whether the deceased had taken his meal from 6.00 PM upto the time of occurrence. As such, the occurrence shown in the F.I.R. is doubtful. 46. There was no source of light at the place of occurrence and therefore in the absence of the same, the prosecution witnesses of fact, i.e. the eye-witness of the occurrence could not have identified the accused. 47. The occurrence is alleged to have occurred on account of deficient amount of money being returned by the accused Raju @ Namit Kumar, the owner of the Hotel. It is thereafter the accused persons are alleged to have assaulted the deceased with knife, lathi and danda. However, the water bottle which is the cause of dispute has not been recovered making the entire evidence doubtful. 48. PW-1, Abhai Saxena is an interested witness and therefore the testimony of this witness, who is an interested witness and also his testimony being contradictory cannot be relied upon. 49. The oral testimony of PW-2, Vikas Kumar, who is only a witness of Inquest/ Panchyatnama has stated about the facts prior to the death of the deceased, which is wholly unreliable. 50. The presence of all the accused-persons at the place of occurrence is itself very doubtful. There is no such evidence on record that the accused persons with a pre- meditated mind assaulted the deceased resulting in his death. 51. The recovery of knife from the accused Narendra Singh is false. 52. No evidence has been adduced by the prosecution to establish that the knife recovered from the co-accused Narendra Singh was used in the commission of the crime. 53. The court below meticulously and exhaustively dealt with each of the above mentioned submissions urged on behalf of the accused-appellants to dislodge the prosecution case and vice-versa in proof of their innocence. Upon evaluation of the said submissions in the light of the propositions required to be addressed in a case relating to direct evidence as already noted herein above, none of the submissions urged on behalf of the accused-appellants to dislodge the prosecution case were found cogent enough by the court below to believe another hypothesis much-less a reasonable hypothesis than the one pleaded by the prosecution. 54. 54. This brings us to the issue relating to the appreciation of evidence by the appellate court as decided by the Apex Court in the Case of State of Uttar Pradesh vs. Krishna Master and Others, 2010 (12) SCC 324 . Paragraphs 15, 16, 17, 24 of the aforesaid judgment clearly deal with the manner in which the evidence of the eye-witnesses is to be evaluated in a criminal case. Paragraphs 15, 16, 17 and 24 are accordingly reproduced herein below:- "15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. 16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. 17. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case. 24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relatives. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relatives. Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness." 55. Applying the aforesaid observations made by the Apex Court to the case in hand, we find that the court-below has rightly held that the prosecution witnesses of fact are credible and reliable and hence, their testimony is worthy of credit. There is no such contradiction, embellishment or exaggeration in the testimony of these witnesses so as to discard the same. The testimony of the prosecution witnesses of fact has been similar in content and consistent throughout. We have ourselves also examined the oral testimony of the prosecution witnesses of fact in the light of the observation made by the Apex Court as referred to herein above. As a result, the testimony of the prosecution witnesses of fact has to be relied upon and dealt with accordingly. 56. The court-below by means of the impugned judgment and order dated 13.09.2012 passed in S.T. No. 371 of 2010, State vs. Raju @ Namit Kumar and Others under Section 302 I.P.C. read with Section 34 I.P.C. arising out of the Case Crime No. 282 of 2010 P.S. Kotwali City, District Bijnor convicted and sentenced all the four appellants, namely, Raju @ Namit Kumar, Manjeet, Mintoo and Narendra Singh for life imprisonment alongwith fine of Rs. 10,000/- each. In case of default in the payment of fine the accused-appellants are to further undergo detention for a period of one year and S.T. No. 372 of 2010, State vs. Narendra Singh under Section 34 Arms Act, arising out of the Case Crime No. 286 of 2010, under Section 4/25 Arms Act, P.S. Kotwali City, District Bijnor, whereby one of the co-accused Narendra Singh has been convicted and sentenced for one year rigorous imprisonment along with fine of Rs. 1000/-. In case of default in the payment of fine the accused-appellant, Narendra Singh is to further undergo detention for a period of three months. 57. 1000/-. In case of default in the payment of fine the accused-appellant, Narendra Singh is to further undergo detention for a period of three months. 57. Hence feeling aggrieved by the judgment and order dated 13.09.2012, as detailed above, the accused-appellants have now approached this Court by means of the present criminal appeals. 58. Criminal Appeal No. 4547 of 2012, Raju @ Namit Kumar vs. State, has been filed by one of the accused Raju @ Namit Kumar. 59. Criminal Appeal No. 3745 of 2012, Manjeet and Another vs. State, has been filed by two of the accused namely Manjeet and Mintoo, 60. Criminal Appeal No. 4024 of 2012, Narendra Singh vs. State, has been filed by the accused Narendra Singh. 61. Learned counsel for the appellants jointly urged that the court below has observed in the impugned judgment that there is no evidence on record to show that the accused appellants assaulted the deceased with a pre-meditated mind, which resulted in the death of Harshvardhan, the deceased. As such, no conviction under Section 302 I.P.C. was possible. However, the court below has not specifically dealt with this issue. 62. Elaborating their arguments, learned counsels for the appellants submit that the case in hand is liable to be considered in the light of the provisions contained in Section 304 part 1 I.P.C. As per the prosecution evidence itself there is nothing to show that there was a pre-meditated mind on the part of the accused-appellants to commit the crime. As such it is urged that the case in hand is one which is required to be judged on the principle of sudden quarrel. Consequently, no other findings rendered by the court below have been challenged by the learned counsel for the appellants. 63. However, this Court being the last Court of fact and also the legal obligation with which a court of appeal is cloaked, we have ourselves scrutinized the findings recorded by the court-below and also the oral evidence on the record to find out whether the conviction of the accused-appellants deserves to be maintained, modified or the same is liable to be set-aside. 64. We have already referred to the propositions which are required to be addressed by a court while dealing with a case of direct evidence. The veracity of the prosecution case is to be judged in the light of the same. 64. We have already referred to the propositions which are required to be addressed by a court while dealing with a case of direct evidence. The veracity of the prosecution case is to be judged in the light of the same. PW-1 Abhai Saxena, PW-2 Vikas Kumar and PW-3 Ankur Tyagi, all of whom are the co-passengers alongwith the deceased in Santro Car bearing No. UP-21-Z-9499. They all are eye witnesses of the occurrence. They have fully proved the occurrence. The defence in the cross-examination of these witnesses could not dislodge their testimony nor could it cull out any such thing on the basis whereof it could be even remotely inferred that the eye-witnesses are not credible and reliable and hence not worthy of trust. The three prosecution witnesses of fact have been consistent throughout regarding the description of the manner of occurrence. They have also proved the identity of the accused persons, which further stands corroborated from the fact that the accused have been nominated by name in the F.I.R. The defence in spite of detailed and lengthy cross-examination of these witnesses could not bring another hypothesis regarding the presence of the accused at the time and place of occurrence. Secondly, the prosecution case that the deceased died on account of the Ante-Mortem injuries caused upon the deceased by the named accused persons, stands corroborated by the medical evidence, i.e., the Post-Mortem Report (Ext. Ka.-1) as well as the testimony of the PW-4, Dr. Bhojraj Singh, who conducted the autopsy on the body of the deceased. He has described the ante-mortem injuries found on the body of the deceased as Incise Wound, Abrasion Wound. He discussed the ante-mortem injuries found on the body of the deceased as incise wound, abrasion, contusion, which could have only been caused by the weapons of assault, namely, knife, lathi and danda in the hands of the accused. The opinion of the Doctor regarding the time of death of the deceased also leads to the same inference that the occurrence took place around 7.30 PM. Thirdly, on the question of motive, it may be noted that in the case of direct evidence motive is irrelevant. But there can be no motiveless malignancy also. The opinion of the Doctor regarding the time of death of the deceased also leads to the same inference that the occurrence took place around 7.30 PM. Thirdly, on the question of motive, it may be noted that in the case of direct evidence motive is irrelevant. But there can be no motiveless malignancy also. All the prosecution witnesses of fact have been consistent in their statements throughout regarding the cause behind the occurrence, i.e., return of deficient amount after the water bottle was purchased at Kohli Hotel, Barrage Road, District-Bijnor. Mere non recovery of the water bottle on account of which the occurrence took place could not lead to an inference that there was no animus behind the occurrence or the occurrence as alleged by the prosecution was untrue. The description of the manner of the occurrence right from the arrival of all the four passengers at Kohli Hotel upto the death of the deceased, all the prosecution witnesses have been consistent and natural. Thus the prosecution was able to prove the same story which it set out to prove. Lastly, the submission urged on behalf of the accused-appellant that there was no pre-meditated mind to commit the crime coupled with the fact that the accused-appellants have not come out with their version of occurrence, clearly amounts to an admission qua the happening of the occurrence in the manner alleged by the prosecution itself. 65. In view of our agreement with the findings recorded by the court below on the various circumstances urged on behalf of the accused-appellants regarding the proof of their innocence, the inescapable conclusion is that the prosecution has succeeded in establishing its case. Therefore, the conclusion drawn by the Court below holding that the accused are guilty of committing murder of Harshvardhan (deceased) cannot be faulted with. 66. However, we further find that the case in hand is a case of a sudden act. There is nothing on the record to show that there was any mens rea on the part of the present accused-appellants to commit the alleged crime or there was any such circumstance to establish the existence of a calculated mens rea to take revenge of any such act committed by the deceased prior to the occurrence or there was pre existing enmity between the two. This aspect of the matter has remained untouched by the court-below. 67. This aspect of the matter has remained untouched by the court-below. 67. Thus the question which arises for determination in these appeals is whether the case in hand is one relating to culpable homicide amounting to murder (punishable under Section 302 I.P.C.) or culpable homicide not amounting to murder (punishable under Section 304 I.P.C.) 68. The law takes care of such a situation. Section 300 IPC lays down the exceptions to Section 299 IPC which deals with culpable homicide not amounting to murder. Any act done upon sudden and grave provocation is the 4th exception of Section 300 IPC. It would be worthwhile to refer to the judgment of the Supreme Court in the case of Surain Singh vs. State of Punjab, 2017 (5) SCC 796 , wherein paragraphs 13 and 14 explain the law relating to the 4th exception. The same are reproduced below:- "13. Exception 4 to Section 300 of the Indian Penal Code applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 Indian Penal Code covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A" sudden fight" implies mutual provocation and blows on each side. A" sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 14. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders 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 Indian Penal Code is not defined in 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 had worked themselves into 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." 69. In the light of the above, we are of the view that the case in hand clearly falls within the exception as noted herein above. 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." 69. In the light of the above, we are of the view that the case in hand clearly falls within the exception as noted herein above. 70. Accordingly, we uphold the view taken by the Court below that the accused appellants are guilty of committing the murder of the deceased Harshvardhan. However, for the reasons mentioned herein above, we modify the punishment awarded to the accused- appellants. 71. The conviction of the accused-appellants under Section 302 I.P.C. read with Section 34 I.P.C. as imposed by the Additional Session Judge, Court No. 8, Bijnor is converted into conviction under Section 304 Part-I I.P.C. The conviction under Section 4/25 of the Arms Act of the accused/appellant Narendra Singh is however maintained. Consequently, all the appellants shall undergo detention for a period of 10 years if not already completed. Upon completion of the sentence awarded herein above, the appellants shall be released after calculating the remission under the relevant provisions. The fine of Rs. 10,000/- as imposed by the court below is enhanced to Rs. 20,000/- each. In case of default in the deposit of fine, the appellants shall further undergo one year rigorous imprisonment. Two of the appellants, namely, Raju @ Namit Kumar and Narendra Singh are in jail. They shall serve out the sentence so awarded if not already completed. The other two appellants namely Manjeet and Mintoo are on bail. Their bail bonds are cancelled. They shall surrender before the court below within a period of two months from today to serve out the sentence awarded to them. 72. The prayer for bail in all the appeals of the respective appellants pending in the respective appeals have been rendered infructuous in view of the final disposal of the present appeals itself. 73. All the appeals are partly allowed.