JUDGMENT G.S. Ahluwalia, J. - This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 28-12-2011 passed by 1st Additional Sessions Judge, Dabra, Distt. Gwalior in S.T. No.196 of 2010 by which the Appellants have been convicted and sentenced for the following offences : Convicted under Section Sentence 302 of IPC Life Imprisonment and fine of Rs.1000/- with default imprisonment of 1 year R.I. 307 of IPC Ten years R.I. and fine of Rs.1000/- in default 1 year R.I. Both the sentences shall run concurrently. 2. According to the prosecution case, the complainant Mahesh (Injured eye-witness) along with his injured wife Bhagwati, lodged a Dehati Nalishi in 108 Ambulance to the effect that on 10-3-2010 at about 5 P.M., he was cutting his gram crop in his field. At that time, the appellant Suresh and Devendra, who were armed with iron rod and lathi respectively, came there and scolded the complainant as to why he has falsely alleged against them about theft of crop. When the complainant disputed the allegation, then both the appellants assaulted him on his both legs, as a result, his both legs were broken. He also suffered injuries on his both hands. When his wife Bhagwati tried to intervene in the matter, She too was assaulted by Suresh on her head by an iron rod. Devendra broke both of her legs by assaulting her by lathi. She also sustained injuries above her eye-brows. The incident was witnessed by Atmadas, Kriparam, Kamal Kishore, Anand etc. On the basis of Dehati Nalishi, FIR was lodged. Both the injured were sent for medical examination. During treatment, Bhagwati lost her life. Merg intimation was recorded. MLCs of Bhagwati and Mahesh were obtained. Post- mortem of dead body of Bhagwati was got done. Safina form was issued and lash Panchnama was prepared. Spot map was prepared. Blood stained, plain earth, gents and ladies chappals, broken pieces of bangles etc were seized from the spot. Statements of witnesses were recorded. The appellants were arrested and iron rod and lathi were seized. The seized articles were sent to F.S.L. Sagar. FSL report was obtained. The copy of FIR was sent to concerning Magistrate. Police after completing the investigation, filed charge sheet for offence under Sections 302, 307, 325, 294, 323, 324, 506 and 34 of IPC. 3. The appellants were arrested and iron rod and lathi were seized. The seized articles were sent to F.S.L. Sagar. FSL report was obtained. The copy of FIR was sent to concerning Magistrate. Police after completing the investigation, filed charge sheet for offence under Sections 302, 307, 325, 294, 323, 324, 506 and 34 of IPC. 3. The Trial Court by order dated 13-7-2010, framed charges under Sections 307/34 and 302/34 of IPC. 4. The Appellants abjured their guilt and pleaded not guilty. 5. The prosecution examined Mahesh (P.W.1), Shyam Sundar Sharma (P.W.2), Kriparam (P.W.3), Rakesh (P.W.4), Munesh Kumar (P.W.5), Anand (P.W.6), Veer Singh (P.W.7), Lakhvinder Singh (P.W.8), Heera Singh Chauhan (P.W.9), Dr. A.K. Sharma (P.W.10), Dr. Nikhil Agrawal (P.W.11) and K.P.S. Chauhan (P.W. 12). 6. The Appellants did not examine any witness in their defence. 7. The Trial Court by the impugned judgment and sentence has convicted and sentenced the Appellants for the above mentioned offences. 8. Being aggrieved by the judgment and sentence passed by the Court below, it is submitted by the Counsel for the Appellants that driver of 108 Ambulance has not been examined. Kotwar, who had called the ambulance, has not supported the prosecution case. The entire case is based on the evidence of Mahesh (P.W.1) who is an interested witness. Even assuming that the allegations are true, it is clear that the act of the Appellants would make out an offence under Section 304 Part I of IPC. 9. Per contra, the Counsel for the State has supported the prosecution case and also supported the findings recorded by the Trial Court. 10. Considered the submissions made by the Counsel for the Parties. 11. Before adverting to the facts of the case, this Court would like to consider as to whether the death of Bhagwati was homicidal in nature or not? 12. Dr. 10. Considered the submissions made by the Counsel for the Parties. 11. Before adverting to the facts of the case, this Court would like to consider as to whether the death of Bhagwati was homicidal in nature or not? 12. Dr. A.K. Sharma (P.W.10) had medically examined the injured/deceased Bhagwati and found following injuries on her body : (i) One Lacerated wound on head left parietal region 5x1x scalp deep, bleeding present; (ii) Lacerated wound on head occipital region 3 x 1 x 1/2 cm ; (iii) Lacerated wound on left elbow bleeding present 2 x 1 x 1 cm ; (iv) Lacerated wound right leg 4 x 1 x 1 cm fracture definitely bleeding present; (v) Lacerated wound left leg 3 x 1 x 1 cm suspected fracture definitely, bleeding present; (vi) Lacerated wound right hand near index finger 3 x 1 x 1/2 cm After primary treatment case referred to J.A.H. Gwalior for hospitalization and further treatment. General condition poor patient semiconscious (delirious) pulse 70/minute, vomiting present. Duration of injuries within 6 hours. General Condition serious. The M.L.C. report is Ex. P. 17. She died on the her way to J.A. Hospital and post-mortem was conducted on 11-3-2010 by Dr. General condition poor patient semiconscious (delirious) pulse 70/minute, vomiting present. Duration of injuries within 6 hours. General Condition serious. The M.L.C. report is Ex. P. 17. She died on the her way to J.A. Hospital and post-mortem was conducted on 11-3-2010 by Dr. Nikhil Agrawal, P.W. 11 and found following injuries : (i) Lacerated wound present on head at left side on mid parietal region on vertex placed anterio posteriously in slight oblique manner, anterior end facing medially size 9 cm x 1.5 cm deep upto bone; (ii) A Lacerated wound present on head at left side occipital part size 3 cm x 1 cm deep to scalp present horizontally; (iii) A Lacerated wound present on right hand in finger web of index and middle finger size 2 cm o.5 cm deep to muscles; (iv) Contusion with swelling on forehead at left side size 5 cm x 5 cm; (v) Abrasion present on right forearm mid part posterior medially size 1 cm x o.5 cm; (vi) Blunt penetrating wound present on right leg mid part medially size 1 cm x o.5 cm deep to muscles and second blunt penetrating wound present on right leg lower part medially size 1 cm x o.5 cm deep to muscles, surrounding area contused in 3.5 cm x 2.5 cm, beneath tibia bone fractured; (vii) Abrasion present over upper part of right leg 2 x 1 cm and another abrasion on lower end of right leg anteriorly size 2 cm x 1 cm; (viii) Contusion present on left leg 6 x 3 cm ; (ix) Blunt penetrating wound present on the anterior part of lower part of left leg size 1 cm x o.5 cm underneath tibia bone fractured, second blunt penetrating wound on upper part of left leg 2.5 x 1 cm x muscle deep; (x) A lacerated wound present on left leg and front part 3x1 cm x deep upto muscles; (xi) A Lacerated wound present on left arm posteriorly 2 1.5 cm ; (xii) Contusion present on left leg extending from knee to (Illegible) lateral aspect size 21 cm x 7 cm; (xiii) Contusion present on chest at upper part at superior aspects of both breasts size 20 cm x 3.5 cm interrupted in between both breasts. All the mentioned injuries are fresh since death and are due to hard and blunt object and injuries to head and lower limbs are fatal cumulatively and sufficient to cause death in ordinary course of nature. Cause of death was cardio-respiratory failure due to head and lower limb injuries. Duration of death within 6 to 24 hours since PM examination. Nature of death appears to be homicidal. The Post-mortem report is Ex. P.19. 13. This witness was cross-examined. In cross-examination, he denied that no injury on left parietal region was found. Injury no.1 was oblique in nature. He also denied that no lacerated wound on left elbow was found. On left leg three injuries were found. He denied that only one injury was found on left leg. He clarified that the meaning of blunt penetrating wound was that some object had come in contact with the body which could penetrate the body and the margins of such injuries are irregular. He admitted that injury no. 5 and 9 were penetrating wounds. 14. Similarly Dr. A.K. Sharma (P.W.10) was also cross-examined. In cross-examination he stated that the injured Bhagwati was brought at about 7:15 P.M. He admitted that the Constable who had brought the injured had not brought the copy of FIR. He admitted that he had not advised for recording of her dying declaration. He admitted that the general condition of Bhagwati was not good and She was in semi- unconscious condition and was not in a position to give statement. She could have sustained injuries in case if she had repeatedly fallen on the stones. She could have sustained the injuries due to fall from staircase by rolling over. If both the injured had fallen from the height with force, then they could have sustained the injuries found on their body. 15. Thus, it is clear that the death of Bhagwati was homicidal in nature. 16. The next question for consideration is that whether the Appellants are the author of the offence or not? 17. If both the injured had fallen from the height with force, then they could have sustained the injuries found on their body. 15. Thus, it is clear that the death of Bhagwati was homicidal in nature. 16. The next question for consideration is that whether the Appellants are the author of the offence or not? 17. Mahesh (P.W.1) is an injured eye-witness and had suffered following injuries : (i) Lacerated wound on head left parietal region 3 x 1 x 1/2 cm bleeding present; (ii) Lacerated wound on head occipital region 4 x 1 x 1/2 cm bleeding present; (iii) Lacerated wound on left elbow, bleeding present 3 x 1 x 1 cm; (iv) Lacerated wound with deformity left leg suspected fracture 4 x 1 c 1 cm; (v) Lacerated wound right leg deformity 4 x 1 x 1 cm bleeding present The M.L.C. is Ex. P.18. 18. Mahesh (P.W.1) has stated that the Appellant Suresh is his brother and Devendra is his nephew. Deceased Bhagwati Bai is his wife. It was around 5 P.M., he was in his field. He and his wife Bhagwati were cutting gram crop. Suresh scolded him that he has levelled a false allegation of theft of crop. When this witness replied that he has not named Suresh, then he was assaulted by Suresh on his head by an iron rod. Devendra assaulted by lathi on his both legs as a result his both legs were broken. Suresh gave another blow by iron rod on his hands. His wife Bhagwati, who was also cutting gram crop, came to intervene. She too was assaulted by Suresh by an iron rod on her head. Devendra assaulted her as a result her both hands and legs were broken. They also extended a threat that in case report is lodged, then they would kill them. At that time, the villagers namely Atamdas, Kripa, Kamalkishore and Anand Chowkidar also came there and thereafter, the Appellants ran away. Thereafter, Anand Chowkidar, informed the police. The police came on the spot and Dehati Nalishi was lodged by him and also put his thumb impression. Thereafter, he and his wife were taken to Dabra Hospital on 108 Ambulance. The statements of this witness and his wife were recorded. Thereafter, Anand Chowkidar, informed the police. The police came on the spot and Dehati Nalishi was lodged by him and also put his thumb impression. Thereafter, he and his wife were taken to Dabra Hospital on 108 Ambulance. The statements of this witness and his wife were recorded. From Dabra Hospital, his wife was referred to J.A. Hospital, Gwalior, however, She died on her way to Gwalior and he was admitted in the hospital. This witness was cross-examined. 19. In cross-examination, he stated that his parents have died about 4- 5 years back. They were in separate possession of their agricultural fields from the lifetime of his father. He is residing in the house, in which his father had breathed his last. Suresh had reconstructed his house after demolishing the part which had come to his share. The house of Suresh is about 1- 1/2 Kms away from the house of this witness. The fields of the Appellant Suresh and this witness are adjoining to each other with an earthen boundary. Other villagers were also working in their fields, but after noticing the fight, they went away. He had seen an iron rod in the hand of Suresh, but did not try to run away as he was not apprehensive of any assault. He did not raise an alarm. When his legs were broken by the appellants, his wife intervened in the matter. Initially, Suresh had given a blow on his head and also gave a blow by an iron rod on his hand. His both legs were broken and steel rod has been implanted. He had sustained injuries on his head, both hands and legs as well as on right shoulder. They were lying on the spot for about 1 hour and were shouting. He denied that Anand Chowkidar had not informed the police. Suresh has 8 bigha agricultural land. Suresh has three sons and two daughters. This witness also has 8 bigha land. No work was going on in the field of Appellants. He denied that Devendra has been falsely implicated because of his enmity with his father Suresh. He denied that they were not beaten by Devendra. 20. Kriparam (P.W.3) was cited as an eyewitness, but he did not support the prosecution case and was declared hostile. He has stated that he was informed by Atmaram that a fight has taken place between Mahesh and Appellant Suresh. He denied that they were not beaten by Devendra. 20. Kriparam (P.W.3) was cited as an eyewitness, but he did not support the prosecution case and was declared hostile. He has stated that he was informed by Atmaram that a fight has taken place between Mahesh and Appellant Suresh. Accordingly, he went to the field. The police and Ambulance had also come. The statements of injured were recorded. The injured were taken to Dabra Hospital from where they were referred to J.A.Hospital. He too accompanied them. Bhagwati lost her life on her way, whereas Mahesh was admitted for treatment. Safina form, Ex. P.4 was issued. Lash Panchayatnama, Ex. P.5 was prepared. The police had prepared spot map, Ex. P.6. The police had seized iron rod and lathi as well as broken pieces of bangles and sleepers. Seizure memo, Ex. P.7 was prepared. He had not seen the incident and reached to the spot after the fight was already over. Since, this witness did not support the prosecution case and denied that he had seen the incident, therefore, he was declared hostile. He was cross-examined by the Public Prosecutor, but he denied that he had seen the incident. 21. Rakesh (P.W.4) has stated that he had seen that Suresh was assaulting Mahesh by an iron rod. Blow was given on the head. Bhagwati Bai also tried to intervene. Suresh gave an iron rod blow on her head and Devendra assaulted on her both legs as a result her both legs were broken. Some villagers also came on the spot. As he was frightened, therefore, he went to the house of his Mousi. Later on, he came to know that police and an ambulance also reached on the spot. The injured were taken to Dabra Hospital. Bhagwati breathed her last on her way to Gwalior. He went to Raipur and came after 2-2 1/2 months and thereafter, his statement was recorded. This witness also stated that Bhagwati was his sister in relation. This witness was cross-examined. 22. In cross-examination, he admitted that he was witnessing the incident from a distance of 50-60 ft.s, but did not try to intervene in the matter. He had shouted, but threat was also given to him by Suresh. A suggestion was given to him that after noticing hot talk between the Appellants and Mahesh, he ran away, which was denied by this witness. He had shouted, but threat was also given to him by Suresh. A suggestion was given to him that after noticing hot talk between the Appellants and Mahesh, he ran away, which was denied by this witness. He further stated that for 2- 2 1/2 months he did not tell anybody about the incident. When he came back from Raipur, then he came to know about the death of Bhagwati. Thereafter, he gave his statement to the police. 23. Munesh Kumar (P.W. 5) did not support the prosecution case. However, he admitted his signatures on arrest memo of Suresh, Ex. P.09, memorandum, Ex. P.10 as well as seizure memo Ex. P.11, by which iron rod was seized from Suresh. He also admitted his signatures on arrest memo of Devendra Ex. P.12, Memorandum, Ex. P.13 and seizure memo Ex. P.14 by which lathi was seized from the possession of Devendra. 24. Anand (P.W. 6) is the Kotwar and he stated that after he got an information about the incident, he went to the field and found that Mahesh and Bhagwati were lying in their field in an injured condition and on query, they informed him that they have been beaten by the Appellants. Since, this witness was cited as an eye-witness and did not support the prosecution case, therefore, he was declared hostile and in cross-examination by the public prosecutor, he denied that he had seen any incident. In cross-examination by the Appellants, he claimed that he had informed the police that the injured had told him that they were beaten by the Appellants, but could not explain as to why this fact is not mentioned in his police statement, Ex. P.16. Thus, the evidence of this witness that an oral dying declaration was made by Bhatwati cannot be relied upon, as this part of his evidence is a major contradiction. 25. Veer Singh (P.W.7) has also turned hostile and did not support the prosecution case. However, he admitted his signatures on arrest memo of Suresh , Ex. P.09, memorandum, Ex. P.10 as well as seizure memo Ex. P.11, by which iron rod was seized from Suresh. He also admitted his signatures on arrest memo of Devendra Ex. P.12, Memorandum, Ex. P.13 and seizure memo Ex. P.14 by which lathi was seized from the possession of Devendra. 26. P.09, memorandum, Ex. P.10 as well as seizure memo Ex. P.11, by which iron rod was seized from Suresh. He also admitted his signatures on arrest memo of Devendra Ex. P.12, Memorandum, Ex. P.13 and seizure memo Ex. P.14 by which lathi was seized from the possession of Devendra. 26. Heera Singh Chauhan (P.W.9) was working on the post of A.S.I., Police Station Pichhore. He has stated that an information was received from Anand (P.W.6) about the fight between Mahesh and Suresh, accordingly, he was sent to the spot. He met with injured Mahesh and Bhagwati who were in 108 Ambulance. The Dehati Nalishi, Ex. P. 15 was lodged by Mahesh for offence under Section 324, 323, 325, 294, 307, 506-B/34 of IPC. Thereafter, he brought the injured to Dabra Hospital and recorded the statements of Mahesh and Bhagwati. The Dehati Nalishi was sent to Police Station through Anand Chowkidar. This witness was cross-examined. 27. In cross-examination, he stated that he had left the police station at about 4:30 P.M., thereafter clarified and claimed at 5:30 P.M. Chowkidar Anand had informed telephonically at 5:15 P.M. When he reached on the spot, 108 Ambulance had already reached. Dehati Nalishi was written inside the 108 Ambulance. He did not prepare any spot map. The statements of the injured Mahesh and Bhagwati were recorded in Dabra Hospital. The witnesses were fit to give statements and did not obtain any medical fitness certificate from the Doctor. He further reiterated in detail the contents of the statement made by Bhagwati. The Police Statement of Bhagwati is Ex. P.20. [Since, Bhagwati died due to the injuries sustained by her in the incident, therefore, her statement under Section 161 of Cr.P.C. would fall within the category of dying declaration]. The statement of Bhagwati was completed within 10 minutes. He did not give any requisition to the Doctor to record dying declaration. The statement was recorded at about 19:15 and was completed by 19:25. 28. K.P.S. Chauhan (P.W. 12) is the investigating officer. He has stated that he recorded the FIR, Ex. P. 21. Merg intimation is Ex. P. 22. The spot map is Ex. P.5. The blood stained and plain earth, two gents sleeper of blue colour, one ladies sleeper, broken pieces of bangles were seized from the spot, vide seizure memo Ex. P.7. The Appellants were arrested vide arrest memo Ex. P.9 and P.12 respectively. P. 21. Merg intimation is Ex. P. 22. The spot map is Ex. P.5. The blood stained and plain earth, two gents sleeper of blue colour, one ladies sleeper, broken pieces of bangles were seized from the spot, vide seizure memo Ex. P.7. The Appellants were arrested vide arrest memo Ex. P.9 and P.12 respectively. Their memorandums, Ex. P.10 and P.13 were recorded. Iron rod was seized from the possession of Suresh vide seizure memo Ex. P.11 and lathi was seized from Devendra vide seizure memo Ex. P. 14. The seized articles were sent to F.S.L. and its report is Ex. P.1 and P/2. The counter copy of FIR which was sent to concerning Magistrate is Ex. P.26 and Dak Book with acknowledgment is Ex. P.25. Rojnamcha Sanhas are Ex. P.27 to P.29 and their photocopies are Ex. P.27C to Ex. P.29C. 29. Thus, the entire prosecution story is based on the evidence of Mahesh (P.W.1), Rakesh (P.W. 6) and dying declaration of Bhagwati, Ex. P.20 which was recorded as a statement under Section 161 of Cr.P.C. Police Statement of Bhagwati, Ex. P.20 which is admissible under Section 32 of Evidence Act. 30. Heera Singh Chauhan (P.W.9) has stated that he had recorded the police statement of Bhagwati, Ex. P.20 at 19:15. He did not obtain any medical fitness certificate from the Doctor. He did not request the treating Doctor to record her dying declaration. It is true that if an investigating officer is of the view that there is no possibility of death of the injured, then he may not request the Doctor to record his/her dying declaration, but the question for consideration is that whether the injured Bhagwati was in a fit state of mind to give police statement, Ex. P.20 or not? 31. Heera Singh Chauhan (P.W.9) did not obtain any fitness certificate from the Doctor. It is true that a dying declaration cannot be discarded merely on the ground that fitness certificate from the Doctor was not obtained. Furthermore, when the investigating officer is not apprehending the death of the victim, then it is not necessary for him to obtain fitness certificate from the Doctor and can record his/her statement under Section 161 of Cr.P.C., provided he is satisfied that the maker of statement is in a fit state of mind. 32. Furthermore, when the investigating officer is not apprehending the death of the victim, then it is not necessary for him to obtain fitness certificate from the Doctor and can record his/her statement under Section 161 of Cr.P.C., provided he is satisfied that the maker of statement is in a fit state of mind. 32. According to Heera Singh Chauhan (P.W.9), he started recording police statement of Bhagwati at 19:15 which was completed by 19:25. According to Dr. A.K. Sharma (P.W.10), the injured was brought to him at 19:15. 33. It is submitted by the Counsel for the Appellants that since, the patient was being treated by Dr. A.K. Sharma (P.W.10) at 19:15, therefore, there is no question of recording of her statement by Heera Singh Chauhan (P.W.9) at 19:15. 34. Considered the submissions made by the Counsel for the Appellants. 35. According to Heera Singh Chauhan (P.W.9), he had recorded the statement of Bhagwati prior to beginning of her treatment. However, this Court cannot lose sight of the fact that both the witnesses had mentioned the time, as per their own watch. There may be a difference of timings in the watches of different persons. The gap is of only few minutes. Therefore, it cannot be accepted that the police statement of Bhagwati was not recorded before the initiation of her medical treatment. 36. However, this Court cannot lose sight of one fact. According to Dr. A.K. Sharma (P.W.10), the patient was semi-unconscious and her condition was poor and was not in a position to make statement. Thus, the satisfaction expressed by Heera Singh Chauhan (P.W.9) with regard to the fitness of Bhagwati just few minutes prior to her medical examination cannot be accepted. Under these circumstances, this Court is of the considered opinion, that the prosecution has failed to prove that the injured Bhagwati was in fit state of mind to give police statement. Therefore, her police statement, Ex. P.20 cannot be relied upon as her dying declaration. Mahesh (P.W.1) 37. Mahesh (P.W.1) is the husband of the deceased and is an injured eye-witness. An injured eye-witness enjoys a special status as presence of injuries on his body are guarantee of his presence on the spot. 38. The Supreme Court in the case of Chandrasekar v. State, reported in (2017) 13 SCC 585 has held as under : 10. Mahesh (P.W.1) is the husband of the deceased and is an injured eye-witness. An injured eye-witness enjoys a special status as presence of injuries on his body are guarantee of his presence on the spot. 38. The Supreme Court in the case of Chandrasekar v. State, reported in (2017) 13 SCC 585 has held as under : 10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P. observing as follows: (SCC p. 302, para 28) '28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.' 39. The Supreme Court in the case of Abdul Sayeed v. State of M.P., reported in (2010) 10 SCC 259 has held as under : 28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.' 30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. 40. This Court in the case of Nathu Singh Vs. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. 40. This Court in the case of Nathu Singh Vs. State of M.P., by judgment dated 30-4-2021 passed in Cr.A. No.397 of 2005 has held as under : 92. Thus, it is clear that an injured witness enjoys a special status and the injury found on his body indicates his undoubted presence on the scene of occurrence. 41. Mahesh (P.W.1) has categorically narrated the incident. He has assigned the role to each and every Appellant which is corroborated by the Medical Evidence. It is submitted by the Counsel for the Appellants, that two blunt penetrating wounds were also found on the legs of Bhagwati which could be caused by sharp objects only and according to Mahesh (P.W.1), Devendra had given lathi blows to Bhagwati on her legs and thus, it is clear that blunt penetrating wounds cannot be caused. 42. Considered the submissions made by the Counsel for the Appellants. 43. Suresh was armed with iron rod. Bhagwati had intervened in the matter only after her husband Mahesh was assaulted by the Appellants. The Appellants had assaulted on the head of Mahesh (P.W.1) and had also broken both his lower limbs. Thus, one thing is clear that Mahesh (P.W.1) was in a poor medical condition and only thereafter, Bhagwati was assaulted. It is true that Mahesh (P.W.1) has not stated that Suresh had also assaulted on the legs of Bhagwati, but looking to his precarious medical condition, it is possible that he might not have witnessed all the assaults made to his wife, Bhagwati. Iron rod can always have a pointed end. Dr. Nikhil Agrawal (P.W.11) has also explained the meaning of blunt penetrating wound. Thus, it is clear that looking to the nature of weapons carried by the Appellants, it cannot be said that no blunt penetrating wound could have been caused to Bhagwati. 44. The Supreme Court in the case of Krishnan v. State Represented by Inspector of Police reported in (2003) 7 SCC 56 has held as under : 18. The evidence of Dr Muthuswami (PW 7) and Dr Abbas Ali (PW 8) do not in any way run contrary to the ocular evidence. 44. The Supreme Court in the case of Krishnan v. State Represented by Inspector of Police reported in (2003) 7 SCC 56 has held as under : 18. The evidence of Dr Muthuswami (PW 7) and Dr Abbas Ali (PW 8) do not in any way run contrary to the ocular evidence. In any event, the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence is not of any consequence. * * * * * 20. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. 21. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the 'credit' of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. 45. The Supreme Court in the case of State of M.P. v. Dharkole, reported in (2004) 13 SCC 308 has held as under : 8. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. 9. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. 9. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. 46. The Supreme Court in the case of Radhakrishna Nagesh v. State of A.P., reported in (2013) 11 SCC 688 has held as under : 22. In order to establish a conflict between the ocular evidence and the medical evidence, there has to be specific and material contradictions. Merely because some fact was not recorded or stated by the doctor at a given point of time and subsequently such fact was established by the expert report, the FSL report, would not by itself substantiate the plea of contradiction or variation. The absence of injuries on the body of the prosecutrix, as already explained, would not be of any advantage to the accused. 23. In any case, to establish a conflict between the medical and the ocular evidence, the law is no more res integra and stands squarely answered by the recent judgment of this Court in Dayal Singh v. State of Uttaranchal: (SCC p. 283, paras 35-36) '35. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab, the Court, while dealing with the discrepancies between ocular and medical evidence, held: (SCC p. 159, para 8) '8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out.' 36. Where the eyewitness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. '34. ... The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by [examining] the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert's opinion is accepted, it is not the opinion of the medical officer but [that] of the court.' (See Madan Gopal Kakkad v. Naval Dubey, SCC pp. 221-22, para 34.)' 47. The Supreme Court in the case of Mahavir Singh v. State of M.P., reported in (2016) 10 SCC 220 has held as under : 22. 221-22, para 34.)' 47. The Supreme Court in the case of Mahavir Singh v. State of M.P., reported in (2016) 10 SCC 220 has held as under : 22. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. (See Abdul Sayeed v. State of M.P., SCC p. 274, para 39.) 48. Thus, this Court is of the considered opinion, that there is no variance between the evidence of Mahesh (P.W.1) and the medical evidence. Rakesh (P.W.4) 49. Rakesh (P.W. 4) has also supported the prosecution case. In the cross-examination, a suggestion was given to this witness that after noticing hot talks between Mahesh and Suresh, he ran away. Thus, the presence of this witness was not seriously disputed by the Appellants. It is true that neither Rakesh (P.W.4) took the injured to the hospital nor he came forward for 2-2 1/2 months, but he has given an explanation for the same. According to him, after noticing the assault, he got frightened and rushed to the house of his Mausi and thereafter, went to Raipur. Only after he returned from Raipur, he came to know about the death. He is not the real brother of Late Bhagwati. He was her distant brother. Furthermore, the reaction of each and every witness would depend on the nature of said witness. In the presence of this witness, the victims were assaulted. This witness might not have anticipated that Bhagwati may die. Furthermore, when the presence of this witness on the spot was not disputed by the Defence, coupled with the fact that his evidence is only of corroborative evidence to the evidence of Mahesh (P.W.1), this Court is of the considered opinion, that Rakesh (P.W.4) had seen the incident and his delayed statement under Section 161 of Cr.P.C. was duly explained by him. Furthermore, it is well established principle of law that mere delay in recording of statement under Section 161 of Cr.P.C., would not make a witness vulnerable. The Supreme Court in the case of Mohd. Khalid v. State of W.B., reported in (2002) 7 SCC 334 has held as under: 12 Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the court can act on the testimony of the witness if it is found to be cogent and credible 50. The Supreme Court in the case of Sheo Shankar Singh v. State of Jharkhand, reported in (2011) 3 SCC 654 has held as under : 66. The legal position is well settled that mere delay in the examination of a particular witness does not, as a rule of universal application, render the prosecution case suspect. It depends upon the circumstances of the case and the nature of the offence that is being investigated. It would also depend upon the availability of information by which the investigating officer could reach the witness and examine him. It would also depend upon the explanation, if any, which the investigating officer may offer for the delay. In a case where the investigating officer has reasons to believe that a particular witness is an eyewitness to the occurrence but he does not examine him without any possible explanation for any such omission, the delay may assume importance and require the court to closely scrutinise and evaluate the version of the witness but in a case where the investigating officer had no such information about any particular individual being an eyewitness to the occurrence, mere delay in examining such a witness would not ipso facto render the testimony of the witness suspect or affect the prosecution version. 67. We are supported in this view by the decision of this Court in Ranbir v. State of Punjab where this Court examined the effect of delayed examination of a witness and observed: (SCC pp. 447-48, para 7) 7. ... 67. We are supported in this view by the decision of this Court in Ranbir v. State of Punjab where this Court examined the effect of delayed examination of a witness and observed: (SCC pp. 447-48, para 7) 7. ... The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the investigating officer should be asked specifically about the delay and the reasons therefor.' 68. Again in Satbir Singh v. State of U.P. the delay in the examination of the witness was held to be not fatal to the prosecution case. This Court observed: (SCC p. 800, para 32) 32. Contention of Mr Sushil Kumar that the investigating officer did not examine some of the witnesses on 27-1-1997 cannot be accepted for more than one reason; firstly, because the delay in the investigation itself may not benefit the accused; secondly, because the investigating officer (PW 8) in his deposition explained the reasons for delayed examination of the witnesses.' Non-Examination of driver of 108 Ambulance. 51. It is submitted by the Counsel for the Appellants that since, the driver of the 108 Ambulance was not examined by the prosecution, therefore, the prosecution has failed to prove that the injured were shifted to Dabra hospital on 108 Ambulance. 52. Considered the submissions made by the Counsel for the Appellants. 53. It is well established principle of law that it is the quality and not quantity of witness, which decides the fate of an accused. Merely because the injured were shifted to Dabra Hospital on 108 Ambulance, it cannot be said that driver of 108 Ambulance was also a necessary and material witness. Undisputedly, the victims were medically examined in Dabra Hospital. Therefore, non-examination of driver of 108 Ambulance would not be fatal to the case of prosecution. Whether Mahesh (P.W.1) is an interested witness 54. It is submitted by the Counsel for the Appellants that since, their land was adjoining to the land of Mahesh (P.W.1) therefore, he was interested in grabbing their land and accordingly, the Appellants have been falsely implicated. 55. Considered the submissions made by the Counsel for the Appellants. 56. Whether Mahesh (P.W.1) is an interested witness 54. It is submitted by the Counsel for the Appellants that since, their land was adjoining to the land of Mahesh (P.W.1) therefore, he was interested in grabbing their land and accordingly, the Appellants have been falsely implicated. 55. Considered the submissions made by the Counsel for the Appellants. 56. Mahesh (P.W.1) has specifically admitted that Suresh has three sons, two daughters and wife. From the order-sheets of the Trial Court, it is clear that none of the Appellant was granted bail. However, nothing was placed on record to suggest that by taking advantage of the absence of Appellants, the land of the Appellants was grabbed by Mahesh (P.W.1). No suggestion was given that Mahesh (P.W.1) is not permitting the wife of Suresh to cultivate the land. Therefore, the interestedness expressed by the Counsel for the Appellants is nothing but an after thought and self imaginative submissions, having no legs to stand. 57. The Supreme Court in the case of Rizan v. State of Chhattisgarh, reported in (2003) 2 SCC 661 has held as under : 6. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. 7. In Dalip Singh v. State of Punjab it has been laid down as under: (AIR p. 366, para 26) '26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.' 8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon. 9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25) '25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.' 10. Again in Masalti v. State of U.P. this Court observed: (AIR pp. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.' 10. Again in Masalti v. State of U.P. this Court observed: (AIR pp. 209-10, para 14) 'But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.' 11. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana. Whether the offence committed by the Appellants would be a homicidal not amounting to murder or not? 58. It is submitted by the Counsel for the Appellants that since, the incident took place all of a sudden without any pre-meditation, therefore, the act of the Appellants would be squarely covered by Section 304 Part 1 of IPC. 59. Considered the submissions made by the Counsel for the Appellants. 60. The Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, reported in (2018) 4 SCC 329 has held as under : 7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following: (a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of body; (e) The amount of the force used. (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation. (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. 61. (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation. (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. 61. The Supreme Court in the case of Ajmal Vs. State of Kerala by Judgment dated 12/7/2022 passed in Cr.A. No. 1838 of 2019 has held as under : 17. The distinctive features and the considerations relevant for determining a culpable homicide amounting to murder and distinguishing it from the culpable homicide not amounting to murder has been a matter of debate in large number of cases. Instead of referring to several decisions on the point reference is being made to a recent decision in the case of Mohd. Rafiq vs. State of M.P. , wherein Justice Ravindra Bhatt, speaking for the Bench, relied upon two previous judgments dealing with the issue as narrated in paragraph nos.11, 12 and 13 of the report which are reproduced below: '11. The question of whether in a given case, a homicide is murder, punishable under section 302 IPC, or culpable homicide, of either description, punishable under section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term 'likely' in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes. 12. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes. 12. The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that: "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of section 304... 13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of sections 299 and 300.' 13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh. This court observed that: "29. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh. This court observed that: "29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger;(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.' 62. If the facts of the case are considered, then it is clear that the injured Mahesh (P.W.1) and deceased Bhagwati were working in their fields. The Appellants came there and started scolding them that they have falsely alleged that the Appellants are involved in theft of crop. Thereafter, both the victims i.e., Mahesh (P.W.1) and the deceased Bhagwati were beaten mercilessly. Both the legs of both the victims were broken. Multiple injuries were caused on the head of both the victims. The victims were not armed with any weapon. They did not instigate the Appellants. Thus, it is clear that not only the incident did not take place all of a sudden, but even otherwise, the Appellants acted in a most cruel manner by breaking the bones of both legs of both the victims and also caused multiple injuries on their heads. 63. Under these circumstances, this Court is of the considered opinion, that the act of the Appellants would not fall within the purview of Section 304 Part 1 of IPC. 64. No other argument was advanced by the Counsel for the Appellant. 65. In view of the detailed discussion, this Court is of the considered opinion, that the Trial Court has rightly convicted the Appellants for offence under Sections 302, 307 of IPC. 66. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment, therefore, the sentence awarded by the Trial Court does not call for any interference. It is needless to reiterate that the sentences awarded by the Trial Court shall run concurrently. 67. Ex-consequenti, the judgment and sentence dated 28-12-2011 passed by 1st Additional Sessions Judge, Dabra, Distt. Gwalior in S.T. No.196 of 2010 is hereby affirmed. 68. The Appellant No. 2 Devendra is on bail. His bail bonds are cancelled and he is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence. 69. The Appellant No.1 Suresh is in jail. He shall undergo the remaining jail sentence. 70. Let a copy of this judgment be immediately provided to the Appellants, free of cost. 71. His bail bonds are cancelled and he is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence. 69. The Appellant No.1 Suresh is in jail. He shall undergo the remaining jail sentence. 70. Let a copy of this judgment be immediately provided to the Appellants, free of cost. 71. Let the record of the Trial Court be sent back immediately, along with copy of this judgment for necessary information and compliance. 72. The Appeal fails and is hereby Dismissed.