JUDGMENT : Syed Aftab Husian Rizvi, J. 1. We have heard Sri I.K. Chaturvedi learned Senior Counsel assisted by Sri Saurabh Chaturvedi for the appellant, Sri Ajay Kumar, Sri Rishikesh Kumar Maurya and Sri Raj Kumar Yadav learned counsels appearing for the informant and Ms. Kumari Meena, learned AGA for the State. 2. This Criminal Appeal is filed against the judgment and order dated 03.01.1994 passed by second Additional District and Sessions Judge, Jaunpur in S.T. No.37 of 1987 (State vs. Kare Deen and ors) arising out of crime no.106/1986, P.S. Barsathi, District Jaunpur. By the impugned judgment and order, the learned Sessions Judge has held appellants-accused Kare Deen, Ram Bhola, Devi Prasad and Ambika Prasad guilty for offence punishable under sections 302 read with section 34 and 323 read with section 34 IPC and sentenced each of them to imprisonment for life for offence under Section 302 read with section 34 IPC and six months rigorous imprisonment for offence under Section 323 read with section 34 IPC. 3. In brief the facts are as follows: On oral information of complainant, Shesh Mani (P.W.-1), an NCR No.106 of 1986, under sections 323, 504 and 506 IPC, was registered at P.S. Barasathi, District Jaunpur on 30.06.1986 at 19:45 hrs against four accused, namely, Kare Deen, Ram Bhola, Devi Prasad and Ambika Prasad. It was alleged that on 30.06.1986 while the complainant was returning with his bulls after ploughing his field, the bulls went near the door of the accused with whom complainant has old enmity; the complainant went to herd away the bulls; the accused started hurling abuses and launched an assault on him with fists and danda. His father Ram Raj came to rescue him. The accused assaulted him as well, with lathi. On the noise, the witnesses Ram Dular and Daya Shankar and other co-villagers intervened. The accused went away hurling abuses and extending life threats. After registration of the NCR, the injured Shesh Mani (the complainant) and Ram Raj were sent to the hospital. On 01.07.1986, injured Ram Raj succumbed to his injuries in the district hospital, Jaunpur. On receipt of the information of death, the case was amended and section 304 IPC was added. The inquest proceeding of the dead body was conducted by S.I. Shamsher Bahadur Singh. He also prepared the related papers and sent the body for postmortem examination. On 01.07.1986, injured Ram Raj succumbed to his injuries in the district hospital, Jaunpur. On receipt of the information of death, the case was amended and section 304 IPC was added. The inquest proceeding of the dead body was conducted by S.I. Shamsher Bahadur Singh. He also prepared the related papers and sent the body for postmortem examination. The investigation was entrusted to S.I. Sankata Prasad Singh. He came to the place of occurrence, recorded the statements of witnesses and prepared the site plan. He also seized the blood stained lungi of the deceased and prepared its memo. Thereafter, on subsequent dates, he recorded the statements of other witnesses and after completion of the investigation, submitted charge sheet on 11.07.1986 under sections 304, 323, 504 and 506 IPC against all the four accused. 4. After committal proceeding, the sessions court framed charges against all the accused under Section 302 read with section 34 IPC and 323 read with section 34 IPC. The accused pleaded not guilty and claimed for trial. The prosecution examined eight witnesses and produced 16 documents Ex. Ka.1 to Ex.Ka-16 and three material exhibits 1 to 3. The statements of accused were recorded under sections 313 Cr.P.C. and incriminating circumstances were put to them. They denied the prosecution case. They have also stated that they have been implicated due to enmity. Complainant-Shesh Mani is the nephew of Ram Dular and Raj Nath is also of the same party and a professional witness. Accused have also stated that the deceased was laying roof upon his kutcha house. He fell down on a log due to which he suffered head injury and died. No evidence in defence was produced. The trial court after hearing the arguments, by the impugned judgment and order, held the accused-appellants guilty for the offence under section 302 read with section 34 and 323 read with section 34 IPC and sentenced them as above. 5. The medico-legal examination of Ram Raj (deceased) was conducted on 30.06.1986 at 10:30 pm by Dr. R.N. Srivastava. Following injuries were noted on his body: 1. Lacerated wound 5 cm X 1 cm X bone deep, present over the right side head above the right ear, bleeding fresh. Injury kept under observation and advised X-Ray Skull. Injury surrounded by traumatic swelling 5 cm X 4 cm. 2. R.N. Srivastava. Following injuries were noted on his body: 1. Lacerated wound 5 cm X 1 cm X bone deep, present over the right side head above the right ear, bleeding fresh. Injury kept under observation and advised X-Ray Skull. Injury surrounded by traumatic swelling 5 cm X 4 cm. 2. Lacerated wound 4 cm X 1 cm X bone deep present over middle of the head, 17 cm above the bridge of nose. Injury surrounded by traumatic swelling 7 cm X 4 cm, injury kept under observation, advised X-Ray of Skull, bleeding fresh. 3. Lacerated wound 2 cm X 0.5 cm, cartilage deep, on inner aspect of right ear, bleeding fresh. 4. Contusion 17 cm X 4 cm, on left side back of chest including abdomen, starting from middle of the body of left scapula, Red in colour. 5. Contusion 12 cm X 2 cm, on back of upper part of left side of scapula, Red in colour. 6. Traumatic swelling 6 cm X 4 cm, on upper part of left shoulder. Doctor has given the opinion that all injuries are simple in nature, except injury no.1 & 2, which are kept under observations and X-Ray of Skull advised. Injuries have been caused by blunt object and duration is fresh. 6. On the same day at 11:15 pm the medico legal examination of Shesh Mani was also conducted by Dr. R.N. Srivastava and following injuries were found: 1. Abraded traumatic swelling 5 cm X 3 cm, on back of left elbow, Red in colour. 2. Traumatic swelling 4 cm X 3 cm on dorsal aspect of middle of right foot. 3. Traumatic swelling 5 cm X 4 cm on dorsal aspect of middle of left foot. Doctor has given the opinion that all injuries are simple in nature, caused by blunt object and duration is fresh. Both the injury reports have been proved by Dr. R.N. Srivastava (P.W.-5) as Ex.Ka-9 & Ka-10. Dr. R.N. Srivastava (P.W.-5) has also accepted the suggestion of prosecution that these injuries may be caused by lathi-danda, fists and kicks, on 30.06.1986 at 4:00 pm. 7. The postmortem of deceased Ram Raj was conducted on 02.07.1986 at 2:00 pm by Dr. P.N. Shukla. R.N. Srivastava (P.W.-5) as Ex.Ka-9 & Ka-10. Dr. R.N. Srivastava (P.W.-5) has also accepted the suggestion of prosecution that these injuries may be caused by lathi-danda, fists and kicks, on 30.06.1986 at 4:00 pm. 7. The postmortem of deceased Ram Raj was conducted on 02.07.1986 at 2:00 pm by Dr. P.N. Shukla. AUTOPSY REPORT External Examination: Stout body of average built, rigor mortis present all over the body, following ante mortem injuries were found: (i) Stitched wound 3 cm long on the head, 8 cm above right pinna to left ear. (ii) Stitched wound 4 cm long on head mid line 5 cm above the injury no.1. Internal Examination: Blood clot was present in the right side of the skull and contusion in temporal lobe of right side of brain. Right contused extra dural clot was found in the right side in cerebra, clots were found in both sides. Blood clot was found at the base of skull. 200 gm clotted blood was found in the abdominal cavity. Right chamber of the heart was full while left chamber was half full. In stomach, 200 ml. digested food was found. Small intestine contains digested food. In large intestine, faecal matter was present. In the opinion of the doctor, the cause of death was due to ante-mortem head injury. The deceased died at the district hospital on 01.07.1986 at 10:15 am. Dr. P.N. Shukla (P.W.-6) has proved the postmortem report as Ex.Ka-8. The witness has further stated that the deceased had also suffered internal injuries and that the anter mortem injuries were sufficient in the ordinary course of nature to cause death. Other Prosecution Evidence: 8. Shesh Mani(P.W.-1)is the complainant as well as the injured. The witness in his examination-in-chief has stated that the accused are real brothers and they live jointly. The witness has also narrated the topography of the place of the incident. The witness has further stated that the accused constructed a dalan (verandah) in the land of the complainant, north of the verandah of the complainant. He tried to restrain them from constructing the dalan (verandah) but the accused did not pay any heed. This was the reason for enmity. At that time, maar-peet took place and a complaint case was instituted. In respect of the incident in question, the witness stated that the incident is of two and a half years ago. It was 4:30 pm. This was the reason for enmity. At that time, maar-peet took place and a complaint case was instituted. In respect of the incident in question, the witness stated that the incident is of two and a half years ago. It was 4:30 pm. He was returning after ploughing his field and was passing through the chak road. When he reached near the door of accused’s dalan then his both bulls flared up. To catch the bulls, he came at the door of the accused, then all the accused Kare Deen, Ram Bhola, Devi Prasad and Ambika Prasad started to abuse and assault him. He raised an alarm, then his father Ram Raj came to rescue him. The witnesses Daya Shankar, Ram Dulare, Raj Nath and Prabhawati (his mother) and his sister-in-law (bhabhi) also came there. The accused assaulted his father with lathi, who fell down. Then accused hurling abuses escaped from there. His father became unconscious. He brought him on a cot to Nigoh. From there, he came to the police station and lodged the oral report. He and his father were sent to the hospital by the police where their medical examination was conducted. On the next day, his father died in the district hospital due to the injuries suffered by him. 9. Raj Nath (P.W.-2) is the eye witness. In his examination-in-chief, the witness has stated that he knows complainant Shesh Mani and accused Kare Deen, Ram Bhola, Devi Prasad and Ambika Prasad who are co-villagers. Ram Raj was the father of Shesh Mani. Two and a half years ago Ram Raj was murdered. It was 4:00 pm. Shesh Mani was driving his bulls. When he reached in front of the door of the accused, the bulls flared up and came at the door of the accused who said that this is not a public way why you are driving your bulls from here. On this Shesh Mani said that this is the public way. On this, accused hurling abuses assaulted Shesh Mani. He made a noise, on which his father Ram Raj came there to rescue him. Then accused assaulted Ram Raj with lathi. Ram Raj became unconscious and fell down. The witness Ram Dular, Daya Shankar, father and uncle and wife of Ram Raj also reached there and witnessed the incident. On this, accused hurling abuses assaulted Shesh Mani. He made a noise, on which his father Ram Raj came there to rescue him. Then accused assaulted Ram Raj with lathi. Ram Raj became unconscious and fell down. The witness Ram Dular, Daya Shankar, father and uncle and wife of Ram Raj also reached there and witnessed the incident. Ram Raj was taken to the police station by the complainant from where he was sent to Jaunpur hospital where he died. 10. Ram Dular (P.W.-3) is also an eye witness. In his examination-in-chief, the witness has stated that accused Kare Deen, Ram Raj, Devi Prasad and Ambika Prasad are residents of his village. They also know Shesh Mani-the complainant. His father was murdered two and a half years ago. Shesh Mani was driving his bulls on the pathway when he reached in front of the house of the accused, the bulls flared up. Shesh Mani went to herd them away, then accused started to abuse him and said that it is not a public way, why you are driving your bulls here. The complainant said that this is a public way and there is no other way. On this, accused started to assault Shesh Mani who raised an alarm. On his alarm Ram Raj came there. Then accused assaulted Ram Raj with lathi. Ram Raj became unconscious and fell down. The incident was witnessed by Ram Dular, Raj Nath and others. Shesh Mani took his father to police station. Thereafter, his father was admitted in the District hospital where he died. 11. Constable Shamsher Bahadur Singh (P.W.-7) is a formal witness who has brought the dead body to police lines after inquest proceeding for postmortem examination. The witness has stated that on 01.07.1986 after inquest proceeding of the dead body of Ram Raj, it was handed over to him and constable Musafir Singh for postmortem examination. On 02.07.1986 he handed over the dead body to the Doctor. 12. S.I. Samar Bahadur Singh (P.W.-8) has conducted the inquest proceeding. The witness has stated that on 01.07.1986 he conducted inquest proceeding at District hospital, Jaunpur. He also prepared the other necessary papers and sealed the dead body, thereafter handed it over to the constable Sanjay Singh and Shamsher Singh for postmortem examination. The witness has proved the inquest report Ex.Ka 16 and other related papers Ex.Ka-9 to Ka-15. 13. The witness has stated that on 01.07.1986 he conducted inquest proceeding at District hospital, Jaunpur. He also prepared the other necessary papers and sealed the dead body, thereafter handed it over to the constable Sanjay Singh and Shamsher Singh for postmortem examination. The witness has proved the inquest report Ex.Ka 16 and other related papers Ex.Ka-9 to Ka-15. 13. S.I. Sankata Prasad Singh (P.W.-4) is the Investigating Officer. The witness has stated that on 30.06.1986 the case was registered as NCR under sections 323, 504 & 506 IPC. The witness has proved by secondary evidence, the NCR and GD entry Ex.Ka.-1 and Ex.Ka-2. He has further stated that on 01.07.1986 injured Ram Raj died at district hospital, Jaunpur. On receiving the aforesaid information, the case was amended and registered as crime no.102/06 under section 304 IPC. The witness has also proved by secondary evidence, the GD of amendment Ex.Ka.-3. The witness has further stated that the investigation of this case was entrusted to him on 08.07.1986. He came to the village and recorded the statements of witnesses and on indication of the complainant and witnesses, inspected the place of occurrence and prepared the site plan (Ex.Ka-4). On 09.07.1986 he recorded the statement of complainant Shesh Mani, seized the blood stained tahmad of the deceased and prepared its memo Ex.Ka.5, recorded the statements of accused Ram Bhola, Devi Prasad and Ambika Prasad in the lockup. On 10.07.1986, he recorded the statements of constable Ram Murti and Kashi Yadav and accused Kare Deen. On 11.07.1986, he submitted the charge-sheet against all accused under Section 304, 323, 504 & 506 IPC. Submissions on behalf of applicants. 14. Learned counsel for the appellants contended that the appellants-accused are innocent and they have been falsely implicated due to old enmity. The prosecution witnesses have admitted the fact of old enmity in their statements. It is further contended that Raj Nath (P.W.-2) is not named as a witness in the FIR. He has been introduced later on. Ram Dular (P.W.-3) is close relative of the complainant and the deceased. He has stated in his cross-examination that he is cousin of Ram Raj-the deceased. So Shesh Mani (P.W.-1) and Ram Dular (P.W.-3) are related and interested witnesses. There are material contradictions and discrepancies in the oral statements of the witnesses. He has been introduced later on. Ram Dular (P.W.-3) is close relative of the complainant and the deceased. He has stated in his cross-examination that he is cousin of Ram Raj-the deceased. So Shesh Mani (P.W.-1) and Ram Dular (P.W.-3) are related and interested witnesses. There are material contradictions and discrepancies in the oral statements of the witnesses. The witnesses have improved their statements while deposing in the court and there are material omissions in their statements recorded by the Investigating Officer under Section 161 Cr.P.C. Ram Dular (P.W.-3) has stated that at the time of incident he was laying roof of his house and saw the incident from there. This statement is quite contradictory to the statement given to the Investigating Officer under Section 161 Cr.P.C., in which, it is recorded that at the time of incident he was working in his field. When confronted by the defence on this point, the witness has disowned the statement given to the Investigating Officer under section 161 Cr.P.C. that at the time of incident he was working in his field. He has further stated that he has told the Investigating Officer that he was laying roof from where he ran towards the place of occurrence. The witness has further stated that he did not come to the place of occurrence but seen the entire incident from the place where he was laying the roof of his house. This witness has also stated that at the time of incident, it was drizzling. No other witness has supported this statement. It is further contended that in the first information report, it is alleged that accused assaulted him with fists, kicks and danda while in his cross-examination, the witness has stated that he was assaulted with lathi. The eye witnesses in their statement have stated that Ram Raj was taken on a cot while the Investigating Officer, Sankata Prasad Singh (P.W.-6) has stated that witnesses told him that Ram Raj was brought in a taxi from the place of occurrence. Shesh Mani (P.W.-1) has also stated that a handkerchief was tied on the head of Ram Raj which was stained with blood. But this handkerchief has not been seized by the Investigating Officer during the course of investigation. Shesh Mani (P.W.-1) has also stated that a handkerchief was tied on the head of Ram Raj which was stained with blood. But this handkerchief has not been seized by the Investigating Officer during the course of investigation. The investigating officer has also not collected the blood stained earth from the place of occurrence while Shesh Mani (P.W.-1) has stated that Ram Raj was bleeding and the blood fell down on the ground. It is further contended that all the injuries of Shesh Mani complainant are simple and superficial. The injuries of Ram Raj (deceased) are also simple in nature. There is no grievous injuries on his body. The accused in their statements under Section 313 Cr.P.C. have stated that Ram Raj-the deceased was laying chapparand he fell down on a log and suffered injuries. Dr. R.N. Srivastava (P.W.-5) has accepted that if the injured fell down from roof on a brick, then injury no.1 may be caused. Injury no.2 is also possible by falling and injury no. 4, 5 & 6 are possible by friction and are simple in nature. So the defence version that the deceased has suffered injuries by a fall from roof cannot be ruled out and is possible. Due to old enmity, a story has been cooked up and accused have been falsely implicated. Learned counsel lastly contended that from the allegations of the first information report and the statement of witnesses it appears that the incident has occurred in the heat of moment. It was not pre-planned, so Section 34 IPC will not apply. The accused persons are four in number and it is not specific from the statements of witnesses that which of the accused caused injury on head to Ram Raj (deceased). Hence accused could not be convicted for the offence punishable under section 302 IPC with the aid of Section 34 IPC. On this point, the learned counsel placed reliance on the case law of Richhpal Singh Meena vs. Ghasi alias Ghisa and ors, (2014) 8 SCC 918 ; and Dhanraj Singh vs. State of Jharkhand, 2019 0 Supreme (Jhk)714 and Gajanand and ors vs. State of Uttar Pradesh, AIR 1954 SC 695 . The submissions on behalf of respondents : 15. Learned AGA and learned counsel for the complainant submitted that three eye witnesses produced by the prosecution are natural witnesses. They are residents of the vicinity. The submissions on behalf of respondents : 15. Learned AGA and learned counsel for the complainant submitted that three eye witnesses produced by the prosecution are natural witnesses. They are residents of the vicinity. They have fully corroborated the prosecution case. There are no material contradiction or discrepancies in their statements. The contradiction and discrepancies as pointed out by the learned counsel for the appellants are minor and natural. Shesh Mani (P.W.-1) has also received injuries in the incident. So his presence on the spot is fully established. The oral evidence is further corroborated with medical evidence. The allegations of the FIR that accused assaulted Shesh Mani and Raja Ram (the deceased) with lathi-danda and fists & kicks, stand corroborated with medical evidence. Time of the incident also stand proved from the oral as well as medical evidence. Place of occurrence is also established and there is no doubt in it. The incident has occurred on 30.06.1986. The report was registered as NCR. After the death of Raja Ram, the case was converted into a cognizable case and Section 304 was added and thereafter investigation commenced. So when the Investigating Officer arrived at the place of occurrence, due to lapse of time, the blood stains could not be found at the place of occurrence. It is further contended that the witnesses have fully corroborated the fact that there was previous enmity between the parties. On this count, on a trivial issue, the accused-appellants with a common intention assaulted Shesh Mani and when his father-Ram Raj came to his rescue, they also assaulted him with lathi, causing him serious head injuries which became fatal. It is further contended that for application of Section 34 IPC pre-concert of mind before the incident is not necessary. It may develop at the place of occurrence itself. So section 34 IPC will apply. The appellant-accused with a common intention have caused head injury to the Ram Raj (deceased) which resulted in his death on the next day during the course of treatment. So it is a clear case of murder. The learned trial court has rightly appreciated the entire facts and evidence, the finding of the learned trial court that appellant accused are guilty for offence under section 302 IPC is just and proper. There is no illegality or perversity in the finding recorded by the learned trial court. Analysis 16. So it is a clear case of murder. The learned trial court has rightly appreciated the entire facts and evidence, the finding of the learned trial court that appellant accused are guilty for offence under section 302 IPC is just and proper. There is no illegality or perversity in the finding recorded by the learned trial court. Analysis 16. The prosecution case is based on direct evidence and prosecution has produced three eye witnesses, Shesh Mani (P.W.-1) Raj Nath (P.W.-2) and Ram Dular (P.W.-3). From the site plan Ex.Ka-4 and from the statements of witnesses, it is fully established that the house of complainant and the accused are in the neighbourhood and there is chak road in the north of the dalan (verandah) and chappar of the accused. The prosecution case is that at the time of incident complainant-Shesh Mani was returning with bulls from his field. When he arrived in front of the house of the accused his bulls flared up and came near the door of the house of the accused. On this some altercation took place between Shesh Mani and the accused. The accused hurling abuses, started to assault Shesh Mani. On his alram, his father Ram Raj came to rescue him. Then he was also assaulted by the accused. Shesh Mani (P.W.-1) has fully supported the aforesaid prosecution case. He has received injuries in the incident. His medico legal examination has been conducted on the same day at 11:15 pm at district hospital, Jaunpur by Dr. R.N. Srivastava (P.W.-5). Three injuries have been found on his body, the first one is abraded traumatic swelling on the left elbow while second and third injuries are traumatic swelling on right leg and left leg. The duration of the injuries was fresh. Doctor has given opinion that these injuries may have been caused by lathi, danda, fists and kicks. The doctor has also accepted the prosecution suggestion that these injuries may come on 30.06.1986 at 4:00 pm. This witness being injured, his presence on the spot cannot be doubted. The duration of the injuries was fresh. Doctor has given opinion that these injuries may have been caused by lathi, danda, fists and kicks. The doctor has also accepted the prosecution suggestion that these injuries may come on 30.06.1986 at 4:00 pm. This witness being injured, his presence on the spot cannot be doubted. Hon’ble Apex Court in Abdul Sayeed vs. Stte of Madhya Pradesh, (2010) 10 SCC 259 , emphasizing the evidentiary value of an injured witness held: “Where witness to occurrence was himself injured in the incident, testimony of such witness is generally considered to be reliable as he is a witness who comes with an inbuilt guarantee of his presence at the scene of the crime and unlikely to spare his actual assailant in order to false implication to someone” In State of Haryana vs. Krishnan, AIR 2017 SC 3125 , it has been laid down that the testimony of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. The reason for attaching such reliability for evidence of an injured witness is that his presence on the scene stands established and it is proved that in the said incident he got injured. 17. Raj Nath (P.W.-2) and Ram Dular (P.W.-3) have also fully corroborated the prosecution case and the statement of Shesh Mani (P.W.-1)-the injured witness. All the above three witnesses have been put to lengthy cross-examination by the defence but except some minor contradictions and discrepancies the oral testimony of these witnesses is intact. There is no major contradiction or discrepancy which makes their statements unreliable. 18. The oral statements of the aforesaid witnesses also stand corroborated from the medical evidence. According to prosecution, accused assaulted the complainant-Shesh Mani and his father Ram Raj with lathi-danda, fists & kicks. The injury reports of Ram Raj and Shesh Mani Ex.Ka-8 and Ex.Ka-7, corroborates the prosecution version in this respect. All the injuries found on the body of both the injured are lacerated wounds, traumatic swelling and abrasions. These injuries are possible only with hard and blunt object like lathi-danda, fists & kicks and friction. The medico legal examination has been conducted on the same day at 10:30 pm and 11:15 pm respectively. All the injuries found on the body of both the injured are lacerated wounds, traumatic swelling and abrasions. These injuries are possible only with hard and blunt object like lathi-danda, fists & kicks and friction. The medico legal examination has been conducted on the same day at 10:30 pm and 11:15 pm respectively. So the medical examination has been conducted after 6-7 hrs of the incident and the doctor has noted the injuries as fresh. This further corroborates the time of the incident. The Investigating Officer has indicated the place of occurrence with letter-A in the site plan Ex.Ka-4. The place of occurrence is in front of the chappar of the accused and on the chak road. All the three eye witnesses have supported the prosecution case that the incident has occurred in front of the door of the house of accused. So there is no doubt about the place of occurrence also. Merely because the name of Raj Nath (P.W.-2) is not mentioned in the first information report as an eye witness and that Ram Dular (P.W.-3) is the cousin of the deceased, their testimony cannot be discarded. It is established from the oral statement that these witnesses resides in the vicinity, so their presence on the spot is natural. It is settled principle of law that the testimony of the witness cannot be discarded merely because he is an interested or inimical. If the oral testimony of the witness inspires confidence and is otherwise trustworthy, his oral statement can be relied. 19. In Bhagwan Jagannath Markad vs State of Maharashtra (2016) 10 SCC 537 , it has been held that: “Generally, contradictions, inconsistencies, exaggerations and embellishments are seen in the oral testimony of witness. If there are no material contradictions in the testimony of a witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations or embellishments etc. Minor contradictions in the testimony of prosecution witnesses are bound to be there and in fact they go to support the trustfulness of the witness.” 20. The motive of the incident stands proved, the accused have also admitted the fact of old enmity between the parties. In this case, there is no circumstance which establishes that the accused have been falsely implicated due to old enmity. The motive of the incident stands proved, the accused have also admitted the fact of old enmity between the parties. In this case, there is no circumstance which establishes that the accused have been falsely implicated due to old enmity. The defence case that the deceased fell down while laying roof and suffered injuries is highly improbable and unacceptable. The medical evidence fully establishes that the injuries suffered by Ram Raj- the deceased cannot be an outcome of fall from the roof. These injuries can only be caused by assault with lathi-danda, fists & kicks. Dr. R.N. Srivastava (P.W.-5) in his cross-examination has only stated that injury no.1 & 2 may come from fall. From the medico legal report, it is established that apart from injury nos.1 & 2 Ram Raj has suffered four other injuries on different parts of his body. The defence has not put any suggestion that all the injuries of Ram Raj may come by a fall from the roof. There is no explanation from the defence of the injuries sustained by Shesh Mani (the complainant). As two persons suffered injuries in the incident, the defence version that Ram Raj (the deceased) has suffered injuries by falling from the roof fails and cannot be accepted. So from the analysis of the evidence on record, it is clear that the prosecution evidence is cogent and reliable. From the prosecution evidence, it is fully established that accused appellants have assaulted the complainant-Shesh Mani and when his father Ram Raj-the deceased came to rescue him, they also assaulted him with lathidanda, fists & kicks. Both Shesh Mani and Ram Raj suffered injuries in the incident, Ram Raj became unconscious, he was taken to the hospital and during the course of treatment, he died in the hospital due to injuries suffered by him. 21. In this case, charge-sheet was submitted under section 304, 323, 504 and 506 IPC. Learned trial court has framed charges under section 302 read with section 34 IPC and Section 323 read with section 34 IPC. Learned trial court has held the appellants-accused guilty for the charges framed by it. Now the question is what offence has been committed and as to what charges are proved against the accused persons. 22. From the facts of the present case, it is clear that the incident has occurred all of a sudden in the heat of the moment. Learned trial court has held the appellants-accused guilty for the charges framed by it. Now the question is what offence has been committed and as to what charges are proved against the accused persons. 22. From the facts of the present case, it is clear that the incident has occurred all of a sudden in the heat of the moment. The incident was not pre-planned, no deadly weapon has been used. So there was no common intention to commit murder of Ram Raj. The common intention was only to cause injjury. Neither in the FIR nor in the statements of witnesses any specific role has been assigned to any of the accused causing head injury to the Ram Raj (the deceased). So it is uncertain that which of the accused caused head injury to the Ram Raj (the deceased) which resulted in his death. The Apex Court in the paragraph nos.23 & 24 of the case of Richhpal Singh Meena vs. Ghasi alias Ghisa and ors, (supra) has referred the case of Ninaji Raoji Boudha vs. State of Maharashtra (1976) 2 SCC 117 which is quoted below: “23. In Ninaji Raoji Boudha vs. State of Maharashtra two persons (Ninaji and Raoji) were convicted by the Trial Court for an offence punishable under Sections 325 and 147 of the IPC and sentenced to five years imprisonment. This was despite the fact that the injuries caused by them on Bhonaji had resulted in his death. In an appeal filed by the State, the High Court convicted them for offences punishable under Section 302/34 of the IPC for causing the death of Bhonaji. 24. Ninaji and Raoji appealed to this Court and it was held that they had given several blows to Bhonaji and one of them was "a forceful blow on the head which caused a depressed fracture and fissures all over" resulting in his death. This Court noted that from the evidence on record: (a) it could not be established who had given that forceful blow; (b) the evidence established that Ninaji and Raoji did not have a common intention of causing the death of Bhonaji but there was a common intention of causing him grievous injury. This Court noted that from the evidence on record: (a) it could not be established who had given that forceful blow; (b) the evidence established that Ninaji and Raoji did not have a common intention of causing the death of Bhonaji but there was a common intention of causing him grievous injury. Consequently, due to the lack of any conclusive or specific (1976) 2 SCC 117 evidence of who was responsible for the homicide and the absence of a common intention, Ninaji and Raoji were acquitted of the offence of murder but were convicted of an offence punishable under Section 302/34 of the IPC and sentenced to five years imprisonment. It appears to us that the principle applied by this Court, though not so stated, is to be found in Section 72 of the IPC which reads as follows: "72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of which.--In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all." ” 23. The Apex Court has also referred the case of Ram Lal vs. Delhi Administration, 1972 SC 2462 in para no.25 & 26, which is quoted below: “25. Similarly, the principle laid down in Section 72 of the IPC appears to have been invoked in Ram Lal vs. Delhi Administration in which four persons (including Ram Lal) were accused of having murdered Har Lal. The Trial Court acquitted one of them but convicted the others, including Ram Lal for an offence punishable under Section 302/34 of the IPC. In appeal, the High Court upheld the conviction of Ram Lal for an offence punishable under Section 302 of the IPC, while the other two were convicted under Section 325/34 of the IPC. 26. In appeal before this Court, the question was whether Ram Lal could have been convicted for an offence punishable under Section 302 o f the IPC. It was held (by a three-Judge Bench) that the High Court had erroneously concluded that the deceased received only one injury on the head. In fact, he had suffered two injuries on the head. In appeal before this Court, the question was whether Ram Lal could have been convicted for an offence punishable under Section 302 o f the IPC. It was held (by a three-Judge Bench) that the High Court had erroneously concluded that the deceased received only one injury on the head. In fact, he had suffered two injuries on the head. Additionally, it was found that the High Court also held that Ram Lal had given only one blow with a stick to Har Lal on the head. On these facts, it could not be said with any degree of certainty whether the blow delivered by Ram Lal proved fatal or the blow given by him did not prove fatal. In the absence of any clear identification of the blow given by Ram Lal, he was entitled to a benefit of doubt. However, since the common intention of the three assailants was to cause a grievous injury to Har Lal, therefore Ram Lal was liable for conviction under Section 325/34 of the IPC apparently applying the principle laid down in Section 72 of the IPC. Accordingly, he was sentenced to five years imprisonment.” 24. From the evidence on record, it is established that the appellants-accused assaulted Shesh Mani and Ram Raj with lathi-danda, fists & kicks. Two blows on the head caused internal head injury and clotting of blood which proved fatal. From the evidence on record, it is not established which accused caused the head injury. The evidence establishes that the incident was not pre-planned, it occurred all of a sudden and there was no common intention to cause death of Ram Raj. There was a common intention of causing him injuries and the nature of injuries suffered by Ram Raj the deceased is covered by Section 320 (8) of IPC. So applying the principles of law laid down by the Apex Court in the case of Ninaji Raoji Boudha vs. State of Maharashtra (Supra) and Ram Lal vs. Delhi Administration (Supra), the appellants accused cannot be convicted for the offence under Section 302/34 IPC. They can be convicted only for the offence under section 325/34 IPC and Section 323/34 IPC. Conclusion 25. From the above discussion, it is clear that the learned trial court has overlooked the facts and evidence that the incident was not a preplanned one. They can be convicted only for the offence under section 325/34 IPC and Section 323/34 IPC. Conclusion 25. From the above discussion, it is clear that the learned trial court has overlooked the facts and evidence that the incident was not a preplanned one. There was no common intention to commit the murder of Ram Raj. The incident occurred suddenly and the accused-appellants assaulted Shesh Mani and Ram Raj only with intention of causing injuries to them. It is also not established from the evidence that which of the accused has caused head injury to Ram Raj which proved fatal. So the appellants accused could not have been convicted for offence under section 302/34 IPC. The finding of trial court in this respect is erroneous. The trial court has committed error in convicting the accused for the offence under section 302/34 IPC and sentencing them to imprisonment for life. This part of the finding of trial court is liable to be modified with the finding that accused-appellants are guilty for the offence under section 325/34 IPC. They are liable to be sentenced with imprisonment of 5 years and fine of Rs.25,000/-each for the offence under section 325/34 IPC. In default of payment of fine, each of the appellants-accused will have to serve simple imprisonment of six months. Half of the amount of fine if deposited shall be paid to the complainant- Shesh Mani. 26. The appeal is partly allowed to the above extent. The accused-appellants are on bail. Their bail bonds and sureties bonds are canceled and sureties are discharged, they shall surrender before the court below within two weeks failing which the court concerned will take necessary action for ensuring the compliance. 27. The lower court record along with copy of the judgment shall be transmitted immediately to the court below.