JUDGMENT 1. This common judgment shall govern the disposal of Cr.A. No.540/1998 and Cr.A. No.363/1998. 2. These criminal appeals have been filed under Section 374(2) of the Cr.P.C. against the judgment dated 07.02.1998 passed by Special Judge, Panna, in S.T. No.37/1997, whereby learned Special Judge found the appellants guilty for the offences punishable under Sections 325/34 of the IPC and sentenced them to undergo R.I for 5 years each with fine of Rs.1000/- each with default clause. 3. As per the prosecution case, on 07.09.1997 at around 9:00 PM Deo Singh went to Pooran Singh's flour mill located at village Ranwaha to get the wheat grinded. Appellant Guman Singh (Appellant in Cr.A. No.540/1998) had also come there for the same purpose. Deo Singh and Guman Singh had a fight over who would get his grains grinded first. Thereupon appellant Guman Singh went to his house and came back along with appellants Phool Charan (Appellant in Cr.A.No.540/1998) and Kamta Prasad (Appellant in Cr.A. No.363/1998) at Pooran Singh's flour mill to beat Deo Singh. Appellant Kamta Prasad was armed with Ballam (spear). When deceased Shiv Singh received the information that appellants Phool Charan, Guman Singh and Kamta Prasad went to Pooran Singh's flour mill to beat Deo Singh, he reached Pooran Singh's flour mill to rescue Deo Singh. He tried to stop appellants from beating Deo Singh, on which Phool Charan told other appellants Guman Singh and Kamta Prasad to beat Shiv Singh. Appellants Guman Singh and Kamta Prasad scuffled with him, appellants Guman Singh and co-accused Babu Singh Rajput caught hold of his hand and appellant Phool Charan caught hold of his testicles. At that point of time, Deo Singh ran away from the spot and informed Pratap Singh (PW-3) that appellants Phool Charan, Guman Singh and Kamta Prasad were assaulting Shiv Singh. On that Pratap Singh (PW-3), Sant Kumar (PW-10), Ramlal (PW-12) and Deo Singh (PW-2) went to the spot. On that, appellants left Shiv Singh and fled away from the spot. They brought Shiv Singh from the spot to the house, but Shiv Singh had died. Pratipal Singh lodged the report of the incident to Police Chowki Kakarhati. On that Pratap Singh (PW-3), Sant Kumar (PW-10), Ramlal (PW-12) and Deo Singh (PW-2) went to the spot. On that, appellants left Shiv Singh and fled away from the spot. They brought Shiv Singh from the spot to the house, but Shiv Singh had died. Pratipal Singh lodged the report of the incident to Police Chowki Kakarhati. On that ASI Suraj Singh (PW-13) registered Marg No.09/1997 (Ex.P.-9) and Crime No.02/1997 (Ex.P-2) at Police Chowki Kakarhati and sent it to P.S. Panna for original registration, where original Marg No.9/1997 (Ex.P-6) and Crime No.10/1997 (Ex.P-11) were registered by SHO Panna N.K. Parihar (PW- 11). ASI Suraj Singh (PW-13) went to the spot and prepared an inquest memo (Ex.P-4) of the dead body of the deceased Shiv Singh and sent it to District Hospital, Panna for postmortem along with the application (Ex.P-8) and he also recorded the case diary statements of Preetamlal Singh (PW-1), Deo Singh (PW-2), Pratap Singh (PW-3) and Buddh Singh (PW-4) and prepared spot map (Ex.P-3). In the District Hospital, Panna Dr J.B. Singh (PW-8) conducted the postmortem of the dead body of deceased Shiv Singh and gave postmortem report (Ex.P-8) to the effect that deceased Shiv Singh's C1 & C2 vertebrae were found fractured, deceased Shiv Singh died due to injury in the spinal cord. Further investigation of the crime was conducted by Inspector K.N. Parihar (PW-11). During investigation K.N. Parihar (PW-11) arrested the appellants Phool Charan, Guman Singh and Kamta Prasad and co-accused Babu Singh. He also seized one Ballam (spear) from the possession of appellant Kamta Prasad and prepared seizure memo (Ex.P-5) and after investigation he filed charge-sheet before CJM, Panna. On that charge-sheet, Criminal Case No.169/1997 was registered. Learned CJM committed the case to the Court of Sessions. On that S.T. No.37/1997 was registered. Learned Special Judge, Panna framed charges under Section 302 of the IPC against appellant Guman Singh and co- accused Babu Singh and charge under Section 302 read with Section 34 of the IPC against appellants Kamta Prasad & Phool Charan and tried the case. Appellants Phool Charan, Guman Singh and Kamta Prasad denied the charges and took the defence that at the time of the incident, an altercation took place between Guman Singh and Deo Singh about who would get his grains grinded first. Ramlal (PW-12) put them out of the mill and closed the flour mill. Appellants Phool Charan, Guman Singh and Kamta Prasad denied the charges and took the defence that at the time of the incident, an altercation took place between Guman Singh and Deo Singh about who would get his grains grinded first. Ramlal (PW-12) put them out of the mill and closed the flour mill. At that time, crowd gathered outside the mill. Shiv Singh was also in the crowd and fell on the stone due to the push, due to which he got hurt. Appellants did not assault him, and due to animosity appellants were falsely implicated in the crime. In this regard, they also produced Uttam Singh (DW-1) and Raghuveer Singh (DW-2) in their defence. Learned trial Court acquitted Babu Singh from the charge punishable under Section 302 of the IPC. However, learned trial court found appellants Phool Charan, Guman Singh and Kamta Prasad guilty for the offence punishable under Sections 325 and 34 of IPC instead of Section 302, 302/34 of IPC and sentenced them as aforesaid. Being aggrieved from the judgment appellant Kamta Prasad filed Criminal Appeal No.363/1998 and appellants Phool Charan & Guman Singh filed Criminal Appeal No.540/1998. 4. Learned counsel for the appellants Phool Charan and Guman Singh submitted that learned trial Court found the appellants guilty for the offences punishable under Sections 325 read with 34 of the IPC on the ground that in the incident deceased Shiv Singh sustained grievous injuries and his C-3 and C-4 vertebrae got fractured but there is no evidence on record to show that appellants caused that injury. In this regard, there is improvement in the statements of alleged eyewitnesses of the incident i.e. Deo Singh (PW-2), Pratap Singh (PW-3), Buddh Singh (PW-4) and Sant Kumar (PW-10), so in this regard their statements cannot be believed. Preetamlal Singh (PW-1) is not the eyewitness of the incident. From his cross-examination it is apparent that he reached the spot after the incident. From the statements of Deo Singh (PW-2), Pratap Singh (PW-3) Buddh Singh (PW-4) and Sant Kumar (PW-10) it only appears that at the time of incident appellants Phool Charan and Guman Singh caught hold of deceased Shiv Singh and on seeing them, they fled away from the spot and thereafter deceased Shiv Singh fell down. Dr. From the statements of Deo Singh (PW-2), Pratap Singh (PW-3) Buddh Singh (PW-4) and Sant Kumar (PW-10) it only appears that at the time of incident appellants Phool Charan and Guman Singh caught hold of deceased Shiv Singh and on seeing them, they fled away from the spot and thereafter deceased Shiv Singh fell down. Dr. J.B. Singh (PW-8) who conducted the postmortem of deceased Shiv Singh admitted in his cross-examination that the injuries sustained by deceased Shiv Singh may be caused due to fall, so it cannot be said that appellants caused said injuries to deceased Shiv Singh. At the most offence under Section 323 of IPC is made out against the appellants Phool Charan and Guman Singh. Learned trial Court committed mistake in finding the appellants guilty for the offence punishable under Section 325 of IPC. 5. Learned counsel for the appellant Kamta Prasad submitted that there is no evidence on record to show that appellant Kamta Prasad assaulted the deceased. Only evidence against the appellant Kamta Prasad is that at the time of incident he was standing on the spot armed with Ballam (spear), but only on that basis without any further involvement of the appellant in the incident it cannot be said that appellant Kamta Prasad was also involved in the crime and cannot be held guilty for the offence punishable under Section 325 of IPC with the aid of Section 34 of IPC. Learned trial Court without appreciating all these facts wrongly found appellant Kamta Prasad guilty for the offence punishable under Sections 325 read with 34 of IPC. 6. Learned counsel for the State opposed the prayer and submitted that from the statements of Preetamlal Singh (PW-1), Deo Singh (PW-2), Pratap Singh (PW-3) Buddh Singh (PW-4) and Sant Kumar (PW-10) it is clearly proved that appellants assaulted deceased Shiv Singh and also caused injuries in his neck, due to which his C-3 and C-4 vertebra got fractured, so learned Trial Court did not commit any mistake in finding the appellants guilty for the aforesaid offence. Hence, it is prayed that the appeal be dismissed. 7. Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court against appellants under Section 325 read with 34 of I.P.C. is liable to be set aside for the reasons stated in the memo of appeal and raised during argument. 8. Hence, it is prayed that the appeal be dismissed. 7. Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court against appellants under Section 325 read with 34 of I.P.C. is liable to be set aside for the reasons stated in the memo of appeal and raised during argument. 8. Dr J.B. Singh (PW-8) who conducted the postmortem of the dead body of deceased Shiv Singh deposed that on 07/01/1997 he was posted as Assistant Surgeon in the District Hospital Panna on that date at around 2:00 PM he conducted postmortem of the dead body of deceased Shiv Singh. He found abnormality in neck movement of deceased Shiv Singh. On dissection of the neck, he found that his C-3 and C4 vertebrae were fractured and dislocated. At this place, there was contusion in the spinal cord and blood was present on the cervical parietal and the cervical membrane was torn. In his opinion, Shiv Singh died due to the trauma caused by the injury in his cervical cord. The duration of his death was from 12 to 24 hours before the autopsy. In this regard, his statement is also corroborated by the postmortem report (Ex.P-8). There is no ambiguity in his cross-examination, regarding the cause of death of Shiv Singh, so there is no reason to disbelieve his statement. From his statement, it is proven that deceased Shiv Singh sustained the injury in his neck, due to which his C-3 and C-4 vertebrae got fractured and his spinal cord got damaged and due to that injury he died. 9. On the point whether appellants caused that injury, Deo Singh (PW- 2) an eyewitness of the incident who was present on the spot from the beginning has stated that on 07.09.1997 at around 9:00 PM he had gone to Pooran Singh's flour mill, to get the wheat grinded. Appellant Guman Singh had also come there to get his grain grinded. There a fight took place between Guman Singh and himself over who would get his grains grinded first. Appellant Guman Singh went to his house and came back along with appellants Phool Charan (Appellant in Cr.A.No.540/1998) and Kamta Prasad (Appellant in Cr.A.No.363/1998) and co-accused Babu. They abused him. At this point of time the deceased Shiv Singh reached there and he intervened. Appellant Guman Singh went to his house and came back along with appellants Phool Charan (Appellant in Cr.A.No.540/1998) and Kamta Prasad (Appellant in Cr.A.No.363/1998) and co-accused Babu. They abused him. At this point of time the deceased Shiv Singh reached there and he intervened. Appellant Phool Charan told 'beat him' (saale ko maro), and appellants Phool Charan, Kamta Prasad and Guman Singh started quarreling with the deceased Shiv Singh (forcefully clung onto him) (??? ???? ??). On that he (Deo Singh) ran toward his house from the spot. On the way he came upon Pratap Singh, Ramlal and Budh Singh and told them that appellants were assaulting Shiv Singh. Thereafter he alongwith Pratap Singh, Ramlal and Budh Singh again reached the spot. On reaching near the spot he saw that Guman Singh was holding Shiv Singh's hand and appellant Phool Charan had grabbed his testicles, appellant Kamta Prasad was standing in front of him armed with Ballam (spear). Phool Charan hit Shiv Singh in the back with a punch and after that those people ran away, he reached the spot and saw that Shiv Singh was lying unconscious. They brought him to the house from the spot but he died. 10. Pratap Singh (PW-3) has stated that there is a flour mill in his village on the bank of the drain. At the time of the incident, he was at his house. Sant Kumar (PW-10) and Ramlal (PW-12) were at his door. On hearing the noise from the side of the drain, all the three people ran towards that side. On the way, Deo Singh met them, he told that Shiv Charan was being caught and held by Phool Charan, Guman, Kamta and Babu. When they reached the bank of the drain, they saw that the appellants were beating Shiv Singh. Phool Charan was holding Shiv Singh from behind, Guman Singh was holding Shiv Singh's hand and Kamta was standing infront of Shiv Singh armed with a spear. Shiv Charan punched Shiv Singh in the neck, after that they fled away from the spot. When he reached near Shiv Singh, he was lying on the ground and died. Pratipal Singh (PW-1), Buddh Singh (PW-4) and Sant Kumar (PW-10) also deposed almost the same with minor cotradictions. Sant Kumar (PW-10) also stated that Guman Singh also punched Shiv Singh on his back. 11. When he reached near Shiv Singh, he was lying on the ground and died. Pratipal Singh (PW-1), Buddh Singh (PW-4) and Sant Kumar (PW-10) also deposed almost the same with minor cotradictions. Sant Kumar (PW-10) also stated that Guman Singh also punched Shiv Singh on his back. 11. Learned counsel for the appellants submitted that independent witness Ramlal (PW-12) at whose flour mill alleged incident occured do not support the prosecution story and turned hostile. The other prosecution witnesses Pratipal Singh (PW-1), Deo Singh (PW2), Pratap Singh (PW-3), Buddh Singh (PW-4) and Sant Kumar (PW-10) are the close relatives of deceased Shiv Singh. There are many exaggerations in their Court statements so their statements cannot be relied on but his arguments have no force. Hon'ble Apex Court in the case of State Of A.P vs S. Rayappa & Ors (2006) 4 SCC 516 observed :- ' By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished'. 12. So only on the ground that Pratipal Singh (PW-1), Deo Singh (PW-2), Pratap Singh (PW-3), Buddh Singh (PW-4) and Sant Kumar (PW-10) are the close relatives of the deceased and independent witness Ramlal (PW-12) at whose flour mill the incident allegedly occured do not support the prosecution story their statements cannot be discarded. 13. 12. So only on the ground that Pratipal Singh (PW-1), Deo Singh (PW-2), Pratap Singh (PW-3), Buddh Singh (PW-4) and Sant Kumar (PW-10) are the close relatives of the deceased and independent witness Ramlal (PW-12) at whose flour mill the incident allegedly occured do not support the prosecution story their statements cannot be discarded. 13. Although in the FIR (Ex.P-2) lodged by Pratipal Singh (PW-1) as well as in the case diary statements of Deo Singh (PW-2), Pratap Singh (PW-3) Buddh Singh (PW-4) and Sant Kumar (PW-10) (Ex.D-1 to Ex.D-4) respectively it is not mentioned that they saw appellants assaulting deceased Shiv Singh or they saw Phool Charan or Guman assaulting Shiv Singh on his back, so in this regard their statements become afterthought and cannot be believed. However, it is apparent from the statement of Deo Singh (PW- 2) that he was on the spot at the time when the incident started. Ramlal (PW-12), at whose flour mill the incident occurred has also admitted in his Court statement that on the date of incident at around 9:00 PM there was a fight between Guman Singh and Deo Singh at his flour mill, which is even admitted by the defense witnesses Uttam Singh (DW-1) and Raghuveer Singh (DW-2), and which further strengthens the statements of Deo Singh that he was present on the spot when the incident started. So, there is no reason to disbelieve his statement that he was present on the spot at the time of beginning of the incident. He has stated that when Shiv Singh came to the spot to save him, appellant Phool Charan said 'beat him' (saale ko maro), and appellants Phool Charan, Kamta Prasad and Guman Singh forcefully clung on to him (??? ??? ? ???? ??). Although the fact that appellants Phool Charan, Kamta Prasad and Guman Singh forcefully clung on to him (??? ??? ? ???? ??) is not mentioned in his case diary statement (Ex.D-2) in these words. In his case diary statement (Ex.D-2) it is mentioned that when Shiv Singh reached the spot, Phool Charan said 'beat him' (saale ko maro), Kamta pressed Balam (spear) on Shiv Singh's chest, Guman Singh grabbed Shiv Singh's left hand, Phool Charan grabbed Shiv Singh from behind and caught hold of his testicals, which means the same. In his case diary statement (Ex.D-2) it is mentioned that when Shiv Singh reached the spot, Phool Charan said 'beat him' (saale ko maro), Kamta pressed Balam (spear) on Shiv Singh's chest, Guman Singh grabbed Shiv Singh's left hand, Phool Charan grabbed Shiv Singh from behind and caught hold of his testicals, which means the same. So from the statement of Deo Singh (PW-2) it is proven that when Shiv Singh came to the spot to save Deo Singh, appellant Phool Charan screamed 'beat him' (saale ko maro), and appellants Phool Charan, Kamta Prasad and Guman Singh manhandled Shiv Singh with intend to cause hurt to him and when Deo Singh (PW-2) again came back to the spot along with Pratap Singh (PW-3), Buddh Singh (PW-4) and Sant Kumar (PW-10) till then Shiv Singh was in the grip of appellants. In this regard, his statement is also corroborated by the statement of Pratap Singh (PW-3), Buddh Singh (PW-4) and Sant Kumar (PW-10). 14. So from the statements of Deo Singh (PW-2), Pratipal Singh (PW-1)), Pratap Singh (PW-3), Buddh Singh (PW-4) and Sant Kumar (PW-10) it is proven that on 07.09.1997 at around 9:00 PM Deo Singh (PW-2) had gone to Pooran Singh's flour mill, to get the wheat grinded. Appellant Guman Singh also came there for the same purpose. A fight took place between Guman Singh and Deo Singh over the first turn to get grains grinded. Then appellant Guman Singh went to his house and came back along with appellants Phool Charan and Kamta Prasad. They abused him. At this point of time, the deceased Shiv Singh reached there to save Deo Singh. When he intervened, appellant Phool Charan said 'beat him' (saale ko maro), and appellants Phool Charan, Kamta Prasad and Guman Singh started quarreling with deceased Shiv Singh and manhandled him with intent to cause hurt to him. Deo Singh ran toward his house from the spot. On the way, Pratap Singh, Ramlal and Budh Singh met him. Thereafter, he alongwith Pratap Singh, Ramlal and Budh Singh again reached the spot where they saw that Shiv Singh was still in the grip of appellants Guman Singh, Phool Charan and Kamta Prasad. Appellants Guman Singh, Phool Charan had caught hold of Shiv Singh and Kamta Prasad was standing in front of Shiv Singh armed with a spear. Thereafter, he alongwith Pratap Singh, Ramlal and Budh Singh again reached the spot where they saw that Shiv Singh was still in the grip of appellants Guman Singh, Phool Charan and Kamta Prasad. Appellants Guman Singh, Phool Charan had caught hold of Shiv Singh and Kamta Prasad was standing in front of Shiv Singh armed with a spear. When they warned appellants Phool Charan, Guman Singh and Kamta Prasad, they fled away from the spot. Thereafter they reached near Shiv Singh and saw that Shiv Singh was lying on the earth and had died. In these circumstances, from the statements of above mentioned prosecution witnesses, it is also proved that Shiv Singh sustained injury in his spinal cord when he was in the grip of appellants, so in these circumstances, it is also proved that the appellant caused that injury. 15. Appellants took the defence that deceased Shiv Singh suffered injury due to his fall and in this regard, they also produced Raghuveer Singh (DW- 1) and Uttam Singh (DW-2) in their defence. They deposed that on the date of incident a quarrel took place between Deo Singh and Guman Singh to get the grain grinded first, due to which villagers gathered on the spot. Shiv Singh was also in the crowd. He fell down near the flour mill on the stones lying near the mill due to the pushing in the crowd and got injured. But Dr. J.B. Singh (PW-8), who conducted the postmortem of the dead body of deceased Shiv Singh has categorically denied from the suggestion that the injury suffered by Shiv Singh could be caused due to his fall on the stones. So the statements of defence witnesses Raghuveer Singh (DW-1) and Uttam Singh (DW-2) that Shiv Singh sustained injury due to falling over the stones becomes false and cannot be believed. 16. Although Dr. So the statements of defence witnesses Raghuveer Singh (DW-1) and Uttam Singh (DW-2) that Shiv Singh sustained injury due to falling over the stones becomes false and cannot be believed. 16. Although Dr. J.B. Singh (PW-8) has admitted in his cross- examination that it is possible that Shiv Singh could have fallen on an earthy or sandy surface and got stretched in his neck, causing the fracture in the bone of the cervical vertebrae and leading to a damage in his spinal cord, but defence witnesses Raghuveer Singh (DW-1) and Uttam Singh (DW-2) have not stated that at the time of the incident, Shiv Singh had fallen on the soil or sand surface, on the contrary they deposed that Shiv Singh had fallen on the stones lying near the mill due to which he got hurt. So this opinion of Dr. J.B Singh does not help the appellants. 17. In the facts and circumstance of the case as discussed above it is proven that appellants Phool Charan, Guman Singh and Kamta Prasad manhandled Shiv Singh with intent to hurt him and due to which Shiv Singh sustained grievous injuries on his neck. So, in the considered opinion of this Court, learned trial Court did not commit any mistake in finding the appellants guilty for the offence punishable under Sections 325/34 of the IPC. 18. Learned counsel for the appellants submitted that incident was not pre-planned and quarrel occurred due to sudden dispute and appellants did not use any weapon to cause injuries to Shiv Singh. Appellants have no criminal past. They have been facing trial since 1998 and appellants remained in custody some time during trial of the case, so their sentence be reduced to the period already undergone. 19. Looking to the facts and circumstances of the case and the fact that the appellants are facing trial since 1998, have no criminal past and haven't misused the liberty of bail earlier granted to them; in the interest of justice, the sentence of imprisonment awarded by the trial Court to the appellants under Sections 325/34 of IPC is reduced from 5 years rigorous imprisonment to 3 years rigorous imprisonment. The period already undergone be set off from the period of the substantive jail sentence. As far as the fine amount is concerned the same remains intact. In default of payment of fine amount, appellants shall suffer one month simple imprisonment. The period already undergone be set off from the period of the substantive jail sentence. As far as the fine amount is concerned the same remains intact. In default of payment of fine amount, appellants shall suffer one month simple imprisonment. 20. The appeal is disposed of accordingly. 21. The appellants are on bail, so their bail bonds are cancelled. They are directed to surrender before the trial Court within 15 days and the trial Court is directed to send them to jail for serving the remaining part of jail sentence. If the appellants do not surrender, the trial Court shall take action according to law for the arrest of appellants. 22. A copy of this judgment be placed in the record of Cr.A. No.363/1998. 23. A copy of this judgment be sent to the concerned trial Court for information and necessary compliance.