JUDGMENT : Prakash Chandra Gupta, J. The appellant/ accused has filed this appeal under section (hereinafter referred to as u/s) 374 (2) of the Code of Criminal Procedure (hereinafter referred to as CrPC) being aggrieved by the judgment dated 07/01/2011 passed by IIIrd Additional Sessions Judge, Satna in S.T. No 210/2005, whereby learned trial court, has convicted the appellant u/s 302/34 and 323/34 of the Indian Penal Code (hereinafter referred to as IPC) and sentenced to undergo life imprisonment and fine of Rs. 500/-and 6 months of rigorous imprisonment and fine of Rs. 500/-in default of payment of fine to undergo further 3 months and 3 months of rigorous imprisonment respectively. 2. It is undisputed fact that Jagannath father of, Badri Prasad (PW/1), Sanjay Kumar (PW/3), Harprasad (PW/5) and Krishnakar Bharati (PW/13). Appellant Jagdish and witness Prahlad (PW/15) are real brothers. Co-accused Ganesh Prasad alias Jitendra Kumar Choudhary is son of appellant Jagdish Prasad. 3. Prosecution story in brief is that complainant Badri Prasad (PW/1) is an agriculturist and lives at Harijan Basti Kripalpur. His uncle accused Jagdish used to live in a house situated at his agricultural land. Prahlad (PW/15) and Jagdish Prasad have executed an agreement to sale of some land in favour of deceased Ramesh Sen resident at Kolgawan. On 27/02/2005 deceased Ramesh Sen told Badri Prasad (PW/1) that his uncle Jagdish Prasad is trying to sell the land to some other person, thereafter, at 2:15 p.m. complainant and deceased Ramesh Sen went to accused Jagdish’s farm. Deceased Ramesh Sen asked Jagdish Prasad why are you selling the land to someone else which has already been sold to him. At that time accused by abusing the complainant said that have you come here to get the land to deceased Ramesh Sen. In between the quarrel Jagdish Prasad with his spade and Ganesh Prasad with an axe, gave blow on complainant’s head and neck respectively with intention to cause death of the complainant. Complainant ran as he saw he was bleeding severely. Complainant saw that Jagdish Prasad and Ganesh Prasad started to hit deceased Ramesh Sen with their spade and axe, as soon as deceased Ramesh Sen tried to run away, Jagdish Prasad and Ganesh Prasad chased him and beat him more severely and deceased Ramesh Sen felt on ground, meanwhile Balipal (PW/2), Sanjay Kumar (PW/3) and others came and shouted, thereafter accused persons fled away. On the basis of information of incident given by Badri Prasad (PW/1), S.I. Ajay Shukla (PW/19) has written FIR (Ex.P-1) against accused Jagdish Prasad Choudhary and Ganesh Prasad Choudhary. 4. Injured Ramesh Sen and Badri Prasad (PW 1) were sent to District Hospital, Satna for examination. Dr. S.B. Singh (PW/12) has examined both the injured persons and gave an MLC report (Ex.P-15 & 17) respectively. On the same day i.e. 27/02/2005 at 04:55 p.m. during treatment Ramesh Sen died. On the basis of letter (Ex. P-19) received from Hospital, Marg Intimation (Ex. P-20) has been lodged at Police Station Kolgawan by Ajay Shukla (PW/19). On 27/02/2005 SHO Kolgawan-V.D. Pandey (PW/16) went to mortuary room at District Hospital Satna after giving notice (Ex. P-6), he prepared inquest report (Ex. P-7). On the same day he sent the body of deceased for Postmortem (hereinafter referred to as “PM”) with Constable Rajesh Singh (PW/20) on 28/02/2005 at 08:50 a.m. Dr. S.B. Singh (PW 12) has conducted PM and gave a PM report (Ex. P-16). He sealed the clothes from the body of deceased and handed over to concerned constable. 5. During investigation SHO V.D. Pandey (PW/16) prepared a spot map (Ex. P-3) in presence of witnesses. He seized blood stained soil and plain soil from the spot vide seizure memo (Ex. P-4). On 28/02/2005 SHO V.D. Pandey (PW/16) seized a sealed packet of clothes of deceased from constable Rajesh Singh (PW/20) and prepared seizure memo (Ex. P-21). On 18/03/2005 SHO V.D. Pandey (PW/16) took co-accused Shakuntala in his custody and interrogated her, she disclosed that she has hidden a khurpi at the back of house in bushes. He prepared disclosure memo (Ex.P-9). At the instance and produced from bushes at the back of house seized a khurpi from Shakuntala and prepared seizure memo (Ex. P-10), on the same day, he arrested co-accused Smt. Shakuntala Choudhary vide arrest memo (Ex. P-13). On 08/06/2005 Halka Patwari Rajendra Singh (PW/17) prepared a panchnama and a spot map (Ex. P-18) (Panchnama and spot map also exhibited Ex.P-26) in presence of Krishnakar Bharati (PW/13). On 10/03/2005 SHO V.D. Pandey (PW 16) seized a blood stained sando-banyan on production from Badri Prasad (PW/1) and prepared seizure memo (Ex.P-2). On 27/04/2005 V.D. Pandey (PW/16) tried to arrest accused persons but appellant Jagdish Prasad and his wife Shakuntala Choudhary (DW 6) were found absconded then he prepared farari panchnama (Ex. On 10/03/2005 SHO V.D. Pandey (PW 16) seized a blood stained sando-banyan on production from Badri Prasad (PW/1) and prepared seizure memo (Ex.P-2). On 27/04/2005 V.D. Pandey (PW/16) tried to arrest accused persons but appellant Jagdish Prasad and his wife Shakuntala Choudhary (DW 6) were found absconded then he prepared farari panchnama (Ex. P- 5). 6. On 08/09/2005 at 05:10 p.m., SHO V.D. Pandey (PW/ 16) arrested appellant Jagdish Prasad Choudhary vide arrest memo (Ex. P-14) and at 05:20 PM interrogated Jagdish Prasad Choudhary before witnesses. Appellant Jagdish Prasad Choudhary disclosed that he has hidden the spade on the roof of his house. He prepared disclosure memo (Ex.P-11). On the same day at the instance and produced by appellant Jagdish Prasad Choudhary from his house a spade was seized vide seizure memo (Ex.P-12). Seized articles were sent for chemical examination vide letter (Ex. P-22) statement of witnesses u/s 161 of CrPC has been taken. V.D. Pandey (PW/16) also sent blood stained and plain soil seized from spot, cloth seized from dead body, sando banyan seized from Badri Prasad (PW1 ) and khurpi seized from co-accused Shakuntala (DW/6) vide letter (Ex. P-23) for chemical examination. Chemical examination report (Ex. P-24 & 25) received from FSL Sagar. Co-accused Ganesh Prasad Choudhary was absconded and could not be arrested, hence, charge-sheet has been filed against the appellant Jagdish Prasad Choudhary and co-accused Shakuntala Choudhary (DW/6). 7. Later on appellant Jagdish was arrested on 22/02/2006 other formalities were complied after completion of investigation, a supplementary charge-sheet has been filed against co-accused Ganesh Prasad Choudhary. 8. Learned trial court framed charge against appellant Jagdish Prasad u/s 302 in alternate 302/34, 307 in alternate 307/34 of IPC; and against co-accused Shakuntala u/s 307/34 of IPC. The accused persons abjured their guilt and sought trial. 9. Prosecution examined injured/ eye witness Badri Prasad (PW/1), eye witnesses Balipal (PW/2), Sanjay Kumar (PW/3), Ram Naresh (PW/4), Ram-Charan (PW/18) and Prahlad Choudhary (PW/15). Prosecution also examined Harprasad Choudhary (PW/5), Mahadev Sen (PW/6), Lallu Prasad Sen (PW/7), Nitin Sen (PW/8), Vishwambhar Prasad Yadav (PW/9), Ramsia Choudhary (PW/10), Betu Choudhary (PW/11), Dr. S.B. Singh (PW/12), Krishnakar Bharati (PW/13), Danbahadur Singh (PW/14), Halka Patwari Rajendra Singh (PW/17), Constable Rajesh Singh (PW/20), SI Ajay Shukla (PW/19) and SHO/ Investigating officer V.D. Pandey (PW/16). 10. Appellant has been examined u/s 313 of CrPC. S.B. Singh (PW/12), Krishnakar Bharati (PW/13), Danbahadur Singh (PW/14), Halka Patwari Rajendra Singh (PW/17), Constable Rajesh Singh (PW/20), SI Ajay Shukla (PW/19) and SHO/ Investigating officer V.D. Pandey (PW/16). 10. Appellant has been examined u/s 313 of CrPC. He has taken defence that he is innocent and has not committed the offence. Badri Prasad Choudhary (PW/1), deceased Ramesh Sen, Aslam Khan, Rajan Singh, Badri Yadav etc. are bhu-mafia. They want to usurp his 8.12 acres of government land which is possessed by him, appellant did not agree to leave the aforementioned land, so they have falsely implicated the appellant and his family with the aid of police. He further took defence that on the date of incident he was near Mangal nursing home, Bharhutnagar was working as a cobler. He has also taken defence that Badri Prasad Choudhary (PW/1) and his brothers murdered deceased Ramesh Sen and falsely implicated the appellant and his family members. 11. Appellant Jagdish Prasad Choudhary has not examined defence witnesses in this case but on 12/11/2009 filed copies of defence witnesses Saraswati (DW/1), Sharda (DW/2), Gulabia (DW/3), Gudiya Choudhary (DW/4), Genda Choudhary (DW/5), Smt. Shakuntala (DW/6), photographer Brijlal (DW/7) and co-accused Ganesh Prasad Choudhary (DW/8), who were examined on behalf of co-accused Ganesh Prasad Choudhary in ST no. 286/6 (State of M.P. V Ganesh Prasad Choudhary) only Shakuntala (DW/6) has been produced on behalf of appellant Jagdish Prasad Choudhary on 07/01/2010 before the trial court and she has been additionally cross-examined by prosecution and re-examined by appellant. 12. It is pertinent to mention here that appellant Jagdish Prasad Choudhary and co-accused Shakuntala tried in ST no 210/2005 (State of M.P. V Shakuntala Choudhary and anr.) and co-accused Ganesh Prasad Choudhary is tried in ST no. 286/2006 (State of M.P. V. Ganesh Prasad Choudhary) before the trial court. Both sessions trial cases are tried and decided simultaneously, but evidence of both the cases have been recorded separately and judgment is also passed separately on the same day (i.e. 07.01.2011). The trial court has convicted co-accused Ganesh Prasad alias Jeetendra Kumar Choudhary and acquitted co-accused Shakuntala Choudhary. Co-accused Ganesh Prasad Choudhary filed a criminal appeal 593/2011 which is also decided simultaneously with this appeal but separately. 13. The learned trial court has passed the impugned judgment and convicted and sentenced the appellant Jagdish Prasad Choudhary for the offences as mentioned above. 14. Co-accused Ganesh Prasad Choudhary filed a criminal appeal 593/2011 which is also decided simultaneously with this appeal but separately. 13. The learned trial court has passed the impugned judgment and convicted and sentenced the appellant Jagdish Prasad Choudhary for the offences as mentioned above. 14. The learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt. Findings recorded by the trial court are contrary to the admitted facts, law and circumstances of the case. From the perusal of statement of prosecution witnesses, it shows that appellant possessed only agricultural equipment which does not come under the definition of deadly weapon. Incident is alleged to take place in the field of appellant where he along with his family used to perform the work of agriculture. Therefore, it could not have been alleged that the appellant and his family members had any intention or any preparation to make a murderous assault on the deceased or to commit murder of deceased. There are only two injuries on the body of deceased, this fact also does not show any intention to commit murder of deceased by appellant or others. Agreement to sale of land has not been filed by the prosecution in the case, therefore, origin of incident is doubtful. The trial court failed to consider that the deceased was admitted in the hospital for 10-12 days, thereafter, he expired and has not appreciated the evidences available on record properly. Most of the witnesses are close relatives of injured Badri Prasad (PW/1). There are material omissions and contradictions in their statements. The trial court has committed error to believe on the statement of prosecution witnesses and disbelieve on the statements of defence witnesses. Appellant has proved his defence but trial court has erred by not believing on it while the defence in comparison to the prosecution evidence is more natural and believable, therefore, findings arrived upon against the appellant. 15. Counsel for the appellant has relied upon judgments delivered in the case of Bahadur Singh V State of Punjab (1992)(II) M.P.W.N. 139; Arjun and anr. V State of C.G. (2017) (I) GLH 509 and Vaman Ramo Vs. State of M.P. CRA No. 847/2008 (Judgment dated 17/05/2018). 16. Per contra, learned Government Advocate for State opposed the submission and has submitted that judgment of conviction and sentence is in accordance with law. V State of C.G. (2017) (I) GLH 509 and Vaman Ramo Vs. State of M.P. CRA No. 847/2008 (Judgment dated 17/05/2018). 16. Per contra, learned Government Advocate for State opposed the submission and has submitted that judgment of conviction and sentence is in accordance with law. Further he submitted that the learned trial court has evaluated the statement of witnesses properly. Therefore, the appeal is liable to be rejected. 17. We have heard learned counsel for parties and perused the record. It is to be considered whether deceased Ramesh Sen died on 27/02/2005 and his death was homicidal in nature and whether Badri Prasad (PW 1) has received injury on the same day. 18. Badri Prasad (PW/1) has stated that due to injury on the body, deceased was taken to district hospital Satna by police official on 27/02/2005 and the next day he came to know that deceased Ramesh did not survive. This statement is supported by Ramnaresh Sen (PW/4), Sanjay Kumar (PW/3), Harprasad (PW/5) and Balipal (PW/2). 19. Dr. S.B. Singh (PW/12) has stated on 27/02/2005 constable Koushal Prasad P/S Kolgawa brought Ramesh Sen for medical examination and treatment to the district hospital, Satna. During examination following injuries were found on the body of Ramesh. (1) Incised wound-with bleeding and brain matter piece seen in wound. Size 10.5 x 2.4 cm intra cranial cavity upto brain starting from 8 cm above medial end of left eyebrow over left front parietal region of head, going partly and right align mid line crossing it and running over right parietal bone area of head and have slight curve to right at its distal 1/3rd part. (2) Swelling- 7 x 4 cm on occipital region of head upper part. 20. Dr. S.B. Singh (PW/12) opined that injury no. 1 was caused by heavy cutting object and injury no. 2 caused by hard and blunt object, both the injuries were caused within 3 hours. Injury no 1 was fatal to life and he advised x-ray for injury no 2. He further stated that injured Ramesh Sen admitted in surgical ward for further treatment he has given MLC report (Ex. P-15). 21. Dr. S.B. Singh (PW/12) stated that after death of Ramesh Sen, he sent an intimation (Ex.P/19) to SHO-Kolgawan. Ward boy Danbahadur (PW/14) deposed that on 27/02/2005 Dr. He further stated that injured Ramesh Sen admitted in surgical ward for further treatment he has given MLC report (Ex. P-15). 21. Dr. S.B. Singh (PW/12) stated that after death of Ramesh Sen, he sent an intimation (Ex.P/19) to SHO-Kolgawan. Ward boy Danbahadur (PW/14) deposed that on 27/02/2005 Dr. S.B. Singh (PW/12) has given intimation (Ex.P-19), in regards to death of Ramesh Sen, thereafter, he produced aforesaid intimation to P/S Kolgawan. On the basis of aforesaid, Marg intimation (Ex.P-20) has been written by SI Ajay Shukla (PW 19) at P/S- Kolgawan. 22. SHO V.D. Pandey (PW/16) stated that on 27/02/2005 he went to mortuary room at District Hospital Satna and after giving notice (Ex.P-6) he prepared Lash Panchnama (Ex.P-7) of dead body of deceased Ramesh Sen. He further stated that after writing letter he sent dead body for PM. 23. Dr. S.B. Singh (PW/12) stated that on 28/02/2005 constable Rajesh Singh (PW/20) produced dead body of deceased, thereafter, he conducted PM of dead body. As per PM report (Ex. P-16) Dr. S.B. Singh (PW/12) received and conducted PM of the dead body at 08:50 am on 28/02/2005. General Examination:- Dead body was cold, Rigor mortis was present, both eyes were closed, blood stain present over head, neck trunk, swelling was present on right eye-lead, pupils were dilated, mouth was partly open. Injuries Dr. S.B. Singh (PW 12) has found following injuries on the dead body:- (1) Incised wound with blood clot and with brain matter piece size 10.5 x 2.4cm x intro cranial cavity starting from 8 cm above medial end of left eyebrow over left front parietal region of head, going partly and right align mid line crossing it and running over right parietal bone area of head and have slight curve to right at its distal 1/3rdpart. The wound has slight convexity to left at its distal part. Edge of wound was clear cut slight contusion everted. Skin, soft tissues, bone, membrane of brain, venous-sinus, vessel and fronto parietal lobe of brain (3.5 cm depth in brain), 5 cm fracture on right frontal bone and 1 cm on right parietal bone, bony piece of inner table at cut bone side were absent. Bony piece were present over right parietal bone of brain.. Some of the brain tissues were absent at wound site. Blood and blood clot was present on brain surface. Bony piece were present over right parietal bone of brain.. Some of the brain tissues were absent at wound site. Blood and blood clot was present on brain surface. Depth of wound was in lower and slight right direction. (2) Swelling- 7 x 4 cm on occipital region of head upper part. Internal Examination Pleura, lungs, liver and kidney were pale. Semi-digested food was present in stomach faecal matter was present in large intestine. Rest of inner parts of body were healthy, urinary bladder was empty. Opinion Dr. S.B. Singh (PW 12) opined that injury no 1 is caused by sharp object and injury no 2 is caused by hard and blunt object. Both of the injuries are ante-mortem in nature. Injury no 1 was dangerous and sufficient in ordinary course of nature to cause death. Cause of death is shock due to haemorrhage and injury to vital region. Death was caused within 24 hours of the pm. He further said that he sealed the clothes of deceased and the sealed packet of the same was given to the concerning constable. After completion of the pm he gave pm report (Ex. P- 9C). 24. Badri Prasad (PW/1) has deposed that on 27/02/2005 he has also received injuries on his neck, left wrist and on head. Dr. S.B. Singh (PW/12) stated that he has examined injured Badri Prasad (PW/1) and gave MLC report (Ex.P-17). He further stated that he has found following injuries on the body of Badri Prasad (PW/1):- 1. Lacerated wound 8.5 x 0.5 cm x bone deep on right parietal region and adjoining left parietal region of head. 2. Lacerated wound 5 x 0.5 x 0.3 cm on left side of neck. 3. Abrasion bloodish right mid leg anterior size 2 x 1/2 cm. 4. Lacerated wound bloodish size 1.5 x 0.5 x 0.5 cm back of left forearm. 5. Swelling 4 x 2 cm left forearm mid region. 6. Swelling 6 x 3 cm on right hip joint 7. Complaining of not able to see, he was advised to examine and opinion by eye surgeon. 25. Dr. S.B. Singh (PW 12) opined that injury No. 1 to 6 were caused by hard and blunt object, duration within 3 hrs. Injury no 3 & 4 were simple in nature he advised x-ray for injury no. Complaining of not able to see, he was advised to examine and opinion by eye surgeon. 25. Dr. S.B. Singh (PW 12) opined that injury No. 1 to 6 were caused by hard and blunt object, duration within 3 hrs. Injury no 3 & 4 were simple in nature he advised x-ray for injury no. 1,2,5 & 6, examination and opinion of injury no 1 & 2 to surgical specialist , for injury 2 & 6 to orthopedic surgeon. He admitted the patient in ward No. 1. There is nothing in x-ray report or opinion of any surgical, orthopedic surgeon or eye surgeon to show that injuries of Badri Prasad (PW/1) were grievous in nature. Therefore, it appears that injuries present on the body of Badri Prasad (PW/1) were of simple in nature. 26. The testimonies of aforementioned witnesses remained unchallenged in the cross-examination which proves that the deceased Ramesh Sen died due to the injuries caused upon him and his death is homicidal in nature and on the other hand it is also proved that Badri Prasad (PW/1) has received injury on the same day and aforesaid injuries were simple in nature. 27. Next question is whether the aforementioned injuries of deceased Ramesh Sen and injured Badri Prasad (PW/1) were caused by appellant Jagdish Prasad and co-accused Ganesh Prasad Choudhary in furtherance of their common intention. 28. The trial court has relied on the statement of Badri Prasad (PW/1), Ram Naresh (PW/4), Sanjay Kumar (PW/3), Harprasad (PW/5) and Balipal (PW/2). Badri Prasad (PW/1) stated that his uncles appellant Jagdish and Prahlad (PW/15) do agricultural work on 8 acres of government land situated behind Yadav farmhouse. Appellant Jagdish lives in the house built on the aforesaid land. Appellant Jagdish, co-accused Ganesh Prasad and Shakuntala Choudhary after receiving money executed agreement to sell the aforementioned land in favour of deceased Ramesh Sen. On 27/02/2005 deceased Ramesh Sen came and told him that Appellant Jagdish is trying to sell the aforesaid land to someone else. Thereafter, Ramesh Sen took Badri Prasad (PW/1) along with him to appellant Jagdish’s farm by motorcycle. At that time appellant Jagdish Prasad his wife Shakuntala and son co-accused Ganesh Prasad were working. Ramesh Sen parked his motorcycle near the house of appellant and asked Jagdish Prasad that why he is selling the land to someone else. Thereafter, Ramesh Sen took Badri Prasad (PW/1) along with him to appellant Jagdish’s farm by motorcycle. At that time appellant Jagdish Prasad his wife Shakuntala and son co-accused Ganesh Prasad were working. Ramesh Sen parked his motorcycle near the house of appellant and asked Jagdish Prasad that why he is selling the land to someone else. Followed by the same appellant Jagdish Prasad and Shakuntala started abusing the deceased and thereafter, Jagdish Prasad with spade, co-accused Shakuntala Khurpi and co accused Ganesh Prasad assaulted him by means of an axe. He sustained injuries on his hand, leg, head and neck. He further said that he received injuries on his head, leg, neck and ribs. Shakuntala with Khurpi gave blow on his left hand. He ran away to save his life. Co-accused Ganesh by axe gave a blow on deceased Ramesh’s head and Jagdish by spade gave blow on his head back and head. Due to injury, deceased fell down at the spot. Sanjay Kumar (PW/3) and Balipal (PW/2) i.e. worker of Yadav farm house) came to the spot after hearing the noise of fight. Then accused persons fled away. 29. Balipal (PW/2) and Ram Naresh Sen (PW/4) both are alleged to be labour of Yadav farm. Balipal (PW/2) and Ram Naresh (PW/4) deposed that at the time of incident they were cutting grass outside the boundary of Yadav farm. Balipal (PW 2) further stated that appellant persons Jagdish, his wife Shakuntala and son co-accused Ganesh were cutting mustard crops, at that time deceased Ramesh Sen and Badri Prasad (PW/1) came by motorcycle, stopped near accused person’s house and started to talk to appellant Jagdish. Balipal (PW/2) and Ram Naresh (PW/4) also stated that after a while they heard appellant Jagdish cried. They saw that Appellant Jagdish and Ganesh Prasad were giving blows with a spade and axe respectively to Badri Prasad (PW/1) and deceased Ramesh Sen. They stated that Badri Prasad (PW/1) and deceased Ramesh sustained injuries on their body. Sanjay Kumar (PW/3) deposed that at about 2:00-2:30 p.m. on 27th February, he was grazing the cows near the place of incident, then he saw accused persons (i.e.. Jagdish Prasad and Ganesh) with their spade and axe, gave blows to Badri Prasad (PW/1) and deceased Ramesh, because of which the received injuries. Sanjay Kumar (PW/3) deposed that at about 2:00-2:30 p.m. on 27th February, he was grazing the cows near the place of incident, then he saw accused persons (i.e.. Jagdish Prasad and Ganesh) with their spade and axe, gave blows to Badri Prasad (PW/1) and deceased Ramesh, because of which the received injuries. Harprasad (PW/5) is real brother of Badri Prasad (PW/1) is not an eye-witness of incident, he deposed that Bhura Choudhary told him that accused persons have beaten his brother Badri Prasad (PW/1). Thereafter he went to the place of incident. Then Sanjay Choudhary (PW/3) told him that appellant Jagdish and co-accused Ganesh have beaten his brother. He saw his brother sustained injuries on his head, neck, hand, waist and leg. Badri Prasad (PW/1) told him that accused persons have beaten him. Then Harprasad saw Ramesh Sen, lying unconscious on the ground and his brain matter was out. 30. Badri Prasad (PW 1) deposed that after the incident he was taken to Police station and he lodged the FIR (Ex. P-1) there. SI Ajay Shukla (PW/19) also stated that he lodged FIR (Ex. P-1) on 27/02/2005. Perusal of the FIR (Ex. P-1) it appears that intimation has been given by Badri Prasad (PW/1) at 2:40PM on 27/02/2005. On the basis of aforesaid information, Ajay Shukla (PW/19) has written FIR (Ex. P-1) therefore it is clear that within 25 minutes of the incident FIR was lodged against appellant Jagdish Prasad and Co-accused Ganesh Prasad Choudhary. Thereafter, on the same date in medical examination deceased and Badri Prasad (PW/1) were found injured as per MLC (Ex. P-15) and (Ex. P-17). As pre letter (Ex. P-19) and Marg Intimation (Ex. P-20), deceased died within 2:40 hrs. of incident. Therefore, it is clear that statement of Badri Prasad (PW/1) supported by FIR (Ex. P-1) and statements of Ram Naresh (PW/4), Sanjay Kumar (PW/3) and Balipal (PW/2). Harprasad (PW/5) also saw injuries on the body of deceased and Badri Prasad (PW/1), therefore, statement of Badri Prasad (PW/1) is also supported by Harprasad (PW 5), statements of aforementioned witnesses also supported by Dr. S.B. Singh (PW 12) who conducted the MLC of Badri Prasad (PW 1) and MLC as well as PM of the deceased Ramesh Sen. Though Sanjay Kumar (PW/3) and Harprasad (PW/5) are real brothers of Badri Prasad (PW/1) but only by being real brothers, they can not become interested witnesses. 31. S.B. Singh (PW 12) who conducted the MLC of Badri Prasad (PW 1) and MLC as well as PM of the deceased Ramesh Sen. Though Sanjay Kumar (PW/3) and Harprasad (PW/5) are real brothers of Badri Prasad (PW/1) but only by being real brothers, they can not become interested witnesses. 31. Though there is an omission in FIR (Ex. P-1) and statement u/s 161 of CrPC (Ex. D-1) relating date “27/02/2005” of incident. There is an omission in FIR Ex. P1 that ‘Jagdish and Prahlad, uncle of Badri Prasad (PW 1) have usurped a government land of about 8 acres near Yadav farmhouse and do agricultural works over there’. Further there is also an omission in Ex. P-1 and Ex. D-1 that ‘ Ganesh and Shakuntala have executed an agreement to sell for consideration’. It is omissioned in Ex. P-1 that ‘Badri Prasad (PW 1) and deceased Ramesh Sen went by motorcycle’. It is also omissioned in FIR Ex. P-1 that ‘deceased Ramesh Sen told Jagdish that ‘give me my money back, I do not want land’. Further it is also omissioned in FIR (Ex. P1) and statement (Ex. D-1) that ‘Jagdish gave a blow with spade on neck and ribs and accused Ganesh gave a blow with an axe on head’. FIR (Ex. P-1) and statement u/s 161 of CrPC of Badri Prasad (PW/1) were written on the same day of incident (i.e. 27/02/2005) and the word which is mentioned over there is “today”. Therefore, not mentioning the date 27/02/2005 can not be treated as omission. In FIR (Ex. P-1) it is mentioned that appellant Jagdish Prasad and Prahlad (PW/6) had executed an agreement to sell a piece of land in favour of Badri Prasad (PW/1). It is mentioned in the statement (Ex.D-1) that Badri Prasad (PW 1) and deceased Ramesh Sen went to farm of appellant Jagdish Prasad by motorcycle. It is mentioned in the statement Ex. D-1 that appellant Jagdish gave a blow with spade on head and co-accused Ganesh gave a blow with an axe on neck. As per statement of Dr. SB Singh (PW 12) it appears that at the time of medical examination he found two lacerated wound on right parietal and left parietal region and one lacerated wound on left side of neck towards back side. As per statement of Dr. SB Singh (PW 12) it appears that at the time of medical examination he found two lacerated wound on right parietal and left parietal region and one lacerated wound on left side of neck towards back side. Therefore, aforementioned omissions are common in nature and on the basis of aforementioned omission, trustworthiness of Badri Prasad (PW 1) can not be disbelieved. though common omissions and contradictions are in the statement of Balipal (PW 2), Ram Naresh (PW 4) Sanjay Kumar (PW 3) Harprasad (PW 5). but aforementioned omissions and contradictions are not material therefore aforementioned statements can not be discarded. Hence, statement of aforementioned witnesses are reliable and trustworthy. 32. In the judgment of Rajinder Singh and anr. V State of Haryana [ AIR 2009 SC 1734 ], Hon’ble the Apex Court observed that:- “23. ...It is well settled that if the witness is related to the deceased, his evidence has to be accepted if found to be reliable and believable because he would inter alia be interested in ensuring that real culprits are punished.” 33. 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 affected to effect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegation against an innocent person. Foundation has to be laid in plea of false implication is made. In such a case the court has to adopt a careful approach and analyses.” 34. In the instant case Badri Prasad (PW/1) is an injured eye-witness of the incident. His statement is supported by independent eye-witness Ram Naresh (PW/4), Balipal (PW/2) and Sanjay Kumar (PW/3). Though Harprasad (PW/5) is not eyewitness of the incident but he saw the injured persons and their injuries just after the incident took place. The statement of aforementioned witnesses is also supported by Dr. S.B. Singh (PW/12). There is nothing to show that aforementioned witnesses are interested to falsely implicate accused persons. There is no material omissions and contradictions in the statements of witnesses to cause injuries on the body of injured and deceased persons by means of spade and axe by accused persons. The statement of aforementioned witnesses is also supported by Dr. S.B. Singh (PW/12). There is nothing to show that aforementioned witnesses are interested to falsely implicate accused persons. There is no material omissions and contradictions in the statements of witnesses to cause injuries on the body of injured and deceased persons by means of spade and axe by accused persons. Therefore, their statement is reliable. Hence, learned trial court has not erred to believe on evidence of aforementioned witnesses. 35. SHO V.D. Pandey (PW/16) has stated that on 27.02.2005 at the instance and presence of Balipal (PW/2) and Betu Choudhary, he prepared a spot map (Ex. P-3). Balipal (PW/2) also supported his statement that police has prepared a spot map (Ex.P-3) in his presence. Betu Choudhary (PW 11) has stated that police has not prepared spot map (Ex. P-3) before him. Prosecution has declared him hostile. Though on behalf of prosecution any suggestion has not been given to this witness that police has prepared a spot map before him, therefore, statement of Betu Choudhary (PW 11) does not support the prosecution with respect to spot map. Statement of SHO V.D. Pandey (PW/16) is supported by Balipal (PW 2), therefore his statement is reliable with respect to spot map (Ex. P-3). Halka Patwari, Rajendra Singh (PW/17) deposed that as directed by P/S Kolgawan he went to the spot on 09/06/2005 and prepared spot map Ex. P-26 (this spot map also exhibited Ex. P-18). Krishnakar Bharati (PW 13) stated that Halka Patwari prepared spot map (Ex. P-18) in his presence as per the prosecution both the witnesses are not eye witness of incident, they have not said anything about who had told them, the place of incident. Therefore, statements of both the above witnesses are not reliable. 36. SHO VD Pandey (PW/16) deposed that he seized blood stained soil and plain soil from the spot and prepared seizure memo (Ex. P-4). His statement is supported by Balipal (PW/2). Betu Choudhary (PW 11) has not supported the case of prosecution and denied his signature on seizure memo (Ex. P-4) after declaration hostile by the prosecution. In paragraph 4 of cross-examination he denied the suggestion of prosecution that police has seized blood stained soil and plain soil from the spot before him, he further said that the police was already carrying such soil. P-4) after declaration hostile by the prosecution. In paragraph 4 of cross-examination he denied the suggestion of prosecution that police has seized blood stained soil and plain soil from the spot before him, he further said that the police was already carrying such soil. Therefore, it is clear that Betu Choudhary (PW 11) has not supported the case of prosecution but statement of V.D. Pandey (PW/16) supported by Balipal (PW 2) and seizure memo (Ex. P-4). Therefore, both the witness appear to be reliable. SHO V.D. Pandey (PW/16) further deposed that on 10/03/2005 he seized a sando banyan from Badri Prasad (PW 1) and prepared seizure memo (Ex. P-2). Badri Prasad (PW/1) stated that police has seized a sando banyan from him. Krishnakar Bharati (PW/13) stated that police has seized a blood stained sando banyan from his brother Badri Prasad (PW/1). Therefore, it is clear that statement of SHO V.D. Pandey (PW/16) is supported by Badri Prasad (PW/1) and Krishnakar Bharati (PW/13). SHO V.D. Pandey (PW/16) further stated that on 28/02/2005 he seized a sealed packet vide seizure memo (Ex. P-21) containing cloth of deceased from constable Rajesh Singh (PW 20) produced from Distt. Hospital, Satna, his statement is supported by Rajesh Singh (PW 20). Statement of both the witnesses are supported by seizure memo (Ex. P- 21) therefore, their statement is reliable. 37. SHO V.D. Pandey (PW/16) stated that he arrested accused Jagdish Prasad and prepared arrest memo (Ex.P-14). He interrogated accused Jagdish and prepared disclosure memo (Ex.P-11), further he stated that at the instance of accused he seized a spade from accused and prepared seizure memo (Ex. P- 12). On perusal of aforesaid panchnamas it appears that on 08/09/2005 at 05:10 PM SHO V.D. Pandey (PW 16) arrested accused Jagdish Prasad Choudhary and the same day at 05:20 PM he interrogated accused thereafter the same day at 06:00 PM he seized a spade at instance on accused Jagdish Prasad and prepared arrest memo (Ex. P-14) disclosure memo (Ex. P-11) and seizure memo (Ex. P-12). Vishwambhar Prasad Yadav (PW 9) stated that the police has arrested accused Jagdish Prasad before him and prepared arrest memo (Ex. P-14) he further said that accused Jagdish disclosed to police before him that he has kept the spade on the roof of his home, police prepared disclosure memo (Ex. P-14) disclosure memo (Ex. P-11) and seizure memo (Ex. P-12). Vishwambhar Prasad Yadav (PW 9) stated that the police has arrested accused Jagdish Prasad before him and prepared arrest memo (Ex. P-14) he further said that accused Jagdish disclosed to police before him that he has kept the spade on the roof of his home, police prepared disclosure memo (Ex. P-11), he also stated that police has seized a spade from accused before him and prepared seizure memo (Ex. P-12). In paragraph 4 of cross-examination he denied that accused Jagdish Prasad has not given any disclosure statement and any article has not been seized before him. Apart from that there is nothing in his cross-examination which can be disbelieved. Therefore statement of both the witnesses is reliable. 38. SHO V.D. Pandey (PW/16) stated that he has sent the seized article in the case, for chemical examination to FSL, Sagar alongwith letter dated 28/11/2005 and 30/05/2005 (Ex. P-22 Ex. P-23) respectively. Chemical Examination report (Ex. P24 & Ex. P-25) received from FSL Sagar. As per Chemical Examination report (Ex. P-24) human blood were found on blood stained soil (Article-A) seized from spot, Shirt (Article C1), Banyan (Article C2), underwear (Article C3) and sweater (Article C4) seized from the body of deceased Ramesh Sen. Banyan (Article D) seized from Badri Prasad (PW 1). but as per chemical examination report Ex. P-25 there was no blood found on spade (Article A) seized from accused Jagdish Prasad. Therefore it is clear that blood was not found on the spade seized from accused Jagdish Prasad Choudhary but aforesaid spade seized at around six months later of the incident and the instant case depends on the statement of injured and eye-witnesses, therefore, on the basis of blood stain not found on the spade seized from the accused can not be doubted the prosecution case. Defence of appellant/ accused 39. Appellant/ accused Jagdish Prasad Choudhary has taken the first defence that he is innocent and has not committed the offence. Badri Prasad Choudhary (PW/1), deceased Ramesh Sen, Aslam Khan, Rajan Singh, Badri Yadav etc. are bhu-mafiya. They want to usurp his 8.12 acres of government land, appellant did not agree to leave the aforementioned land, so they have falsely implicated the appellant and his family with the aid of police. 40. Badri Prasad Choudhary (PW/1), deceased Ramesh Sen, Aslam Khan, Rajan Singh, Badri Yadav etc. are bhu-mafiya. They want to usurp his 8.12 acres of government land, appellant did not agree to leave the aforementioned land, so they have falsely implicated the appellant and his family with the aid of police. 40. Accused Ganesh Prasad Choudhary (DW/8) stated that in greed of land, injured Badri Prasad (PW/1) has falsely implicated accused by gaining sympathy of police. Still the land mafiya (bhu-mafiya) are bothering him, his father and mother. Prahlad (PW/15) in paragraph 6 of cross-examination admitted that Badri Prasad (PW/1), Aslam, deceased Ramesh and Rajan were working as brokers of land. He also admitted that they had a gang and they threatened to vacate the land of accused persons but Badri Prasad (PW/1) in paragraph 21 of cross-examination denied that in order to usurp the land, conspired with police and doctor and have falsely made an accused for the offences. Prahlad (PW/15) has not supported prosecution story and prosecution has declared him hostile. Therefore aforementioned statements of Prahlad (PW/6) and Ganesh Prasad Choudhary (DW/8) is not reliable. 41. Shakuntala (DW/6) has stated that at the time of incident she was cutting mustard crops in her farm with her sister-in-laws Saraswati (DW/1), Gallu Bai and Chunni Bai then Badri Prasad (PW/1), Bhola, Rajesh, Harprasad (PW/5), Sugriv, Bhole, Kisana, deceased Ramesh Sen, Rajan Singh, Aslam Khan came in a drunk mode near her farm by 3 motorcycles. They started to abuse her in filthy language. They said that they have bought the land. She told them not to abuse but they did not stop. Thereafter she went to Police Station Kolgawan to lodge FIR. Further she said that she intimated SHO V.D. Pandey (PW/16) that Badri Prasad Choudhary, etc. are abusing her and they want to dispossess her. In paragraph 6 of examination-in-chief Shakuntala (DW/6) has stated that at the time when she was cutting mustard crops, Badri Choudhary (DW/1) and his brothers came and asked them to not cut the crops, they also called the police. SHO V.D. Pandey (PW/16) also came and started beating them. She received injuries on head, hand and leg, her sister-in-law Gallu Bai received bone fracture injury in hand. Police took her and her sister-in-laws to police station. Her statement is partly supported by Saraswati (DW/1), Gulabia (DW/3), Gudiya (DW/4) and Genda Choudhary (DW/5). 42. SHO V.D. Pandey (PW/16) also came and started beating them. She received injuries on head, hand and leg, her sister-in-law Gallu Bai received bone fracture injury in hand. Police took her and her sister-in-laws to police station. Her statement is partly supported by Saraswati (DW/1), Gulabia (DW/3), Gudiya (DW/4) and Genda Choudhary (DW/5). 42. Appellant Jagdish Prasad has not asked questions in cross-examination of SHO V.D. Pandey (PW/16) that Badri Prasad Choudhary (PW/1), etc. were abusing Shakuntala (DW/6) and they wanted to dispossess her. Badri Prasad (PW/1) and his brothers came and asked Shakuntala (DW/6) to not cut the crops, they also called the police. SHO V.D. Pandey (PW/16) came and started beating them, she received injuries on head, hand and leg, her sister-in-law Gallu Bai sustained grievous hurt (i.e. fracture in hand). In paragraph 23 of cross-examination SHO V.D. Pandey (PW/16) denied the suggestion that Shakuntala (DW/6) was cutting Tuvar crops with her sister in laws and 8-10 other labours. At that time he took her sister-in-law Kallu and Saraswati (DW/1) to Police Station. Injured and eye-witnesses of the incident have denied that at the time of incident Badri Prasad (PW/1) his brothers and deceased wanted to take possession of appellant’s land. Apart from that Shakuntala (DW/6) and Ganesh Prasad Choudhary (DW/8) are wife and son of appellant. It appears that Saraswati (DW/1), Gulabiya (DW/3) and Gudiya (DW/4) are also close relatives of appellant. In respect of injuries received by Shakuntala (DW/6) and Gallu Bai, no medical report has been produced by the appellant. Appellant has not examined alleged injured Gallu Bai in his defence. Therefore aforementioned statement of defence witnesses is not reliable. 43. Saraswati (DW/1) stated that around 4-5 years ago she was cutting mustard crops with Shakuntala (DW/6) and 1-2 other labours. At around 12:00-01:00 p.m. Badri Prasad (PW/1) his brother and some other persons came by 3 motorcycles and Badri Prasad (PW/1) while abusing Shakuntala (DW/6), said that, the land belongs to him, vacate it. Shakuntala (DW/6) denied him, but he did not stop abusing, then Shakuntala (DW/6) went to report it in P/S. But in this respect appellant has not produced copy of any FIR which was lodged by Shakuntala (DW/6) 44. In paragraph 4 & 5 of cross-examination Prahlad Choudhary (PW/15) has admitted that Badri Prasad Choudhary (PW/1) work as broker of land. Shakuntala (DW/6) denied him, but he did not stop abusing, then Shakuntala (DW/6) went to report it in P/S. But in this respect appellant has not produced copy of any FIR which was lodged by Shakuntala (DW/6) 44. In paragraph 4 & 5 of cross-examination Prahlad Choudhary (PW/15) has admitted that Badri Prasad Choudhary (PW/1) work as broker of land. Further he said that he knows that deceased Ramesh Sen used to buy and sell land. He admitted that deceased Ramesh Sen and injured Badri Prasad Choudhary (PW/1) wanted to obtain the possession of the aforementioned land by hook or by crook. 45. Badri Prasad Choudhary (PW/1) has admitted in paragraph 6 of his cross-examination that Badri Sen, Badri Yadav and deceased Ramesh Sen used to buy and sell land but in paragraph 9 of cross-examination he has denied that he used to buy and sell land alongwith deceased Ramesh Sen. Further he also denied that on the date of incident he and deceased went to appellant’s home to tell him to vacate the home and leave. But it does not appear from the cross-examination of injured and eyewitnesses of incident that deceased Ramesh Sen and injured Badri Prasad Choudhary (PW 1) tried to obtain possession of the land of appellant forcefully by dispossessing him from the same. Therefore, though it appears that Badri Sen, Badri Yadav and deceased Ramesh Sen used to buy and sell land but on the aforesaid basis statement of eye witnesses cannot be doubted. Hence, statement of accused Ganesh Prasad Choudhary (DW/8), Saraswati (DW/8) and Shakuntala (DW/6) is not reliable 46. Therefore it is not proved that Badri Prasad Choudhary (PW/1), deceased Ramesh Sen, Aslam Khan, Rajan Singh, Badri Yadav etc. are bhu-mafiya. They wanted to usurp 8.12 acres of government land, appellant did not agree to leave the aforementioned land, so they have falsely implicated the appellant and his family with the aid of police. 47. Appellant/ accused Jagdish Prasad Choudhary further took defence that on the date of incident he was near Mangal nursing home, Bharhutnagar and was working as a cobler. 48. Appellant has not produced any evidence to show the distance between the place of incident and Mangal nursing home, Bharhutnagar. 47. Appellant/ accused Jagdish Prasad Choudhary further took defence that on the date of incident he was near Mangal nursing home, Bharhutnagar and was working as a cobler. 48. Appellant has not produced any evidence to show the distance between the place of incident and Mangal nursing home, Bharhutnagar. Shakuntala (DW/6) stated that on the date of incident, her husband appellant Jagdish Prasad had gone to Bharhutnagar to do his job of shoes stitching and polishing in morning at 08:00 AM. Her statement is supported by Ganesh Prasad Choudhary(DW/8). Prahlad Choudhary (PW/15) admitted in paragraph 6 of cross-examination that on the date of incident appellant had gone to his shop at Mangal nursing home, Bharhutnagar. It appears that Prahlad Choudhary (PW/15) is real brother of appellant and has not supported the prosecution thus prosecution has declared him hostile. Shakuntala (DW/6) and Ganesh Prasad Choudhary (DW/8) are family members of appellant but injured and eye-witnesses of the incident clearly stated that at the time of incident, appellant was present at his farm, their statement is also found reliable. Therefore statement of above defence witnesses is not reliable. 49. Therefore it is not proved that on the date of incident, appellant Jagdish Prasad Choudhary was near Mangal Nursing Home, Bharhutnagar and was working as a cobler on the date of incident. 50. Appellant/ accused Jagdish Prasad Choudhary has also taken defence that Badri Prasad Choudhary (PW/1) and his brothers murdered deceased Ramesh Sen and falsely implicated the appellant and his family members 51. Saraswati (DW/1) stated that she saw that Badri Prasad (PW 1) and his brother were going towards well. Badri Prasad (PW/1) and his brothers were chasing a man but she could not see who was beating whom. Later she came to know that the person who was being chased by Badri Prasad (PW/1) and others, died. Her statement supported by Gulabiya (DW/3), Gudiya Choudhary (DW/4), Genda Choudhary (DW/5). But Badri Prasad (PW/1), Sanjay Kumar (PW/3), Harprasad (PW/5), Krishnakar Bharati (PW/13), Nitin Sen (PW/8) and Balipal (PW/2) have denied that at the time of incident Badri Prasad (PW 1), his brothers and some other persons went to the farm of accused Jagdish and abused Shakuntala (DW 6) and they have killed deceased Ramesh Sen. But Badri Prasad (PW/1), Sanjay Kumar (PW/3), Harprasad (PW/5), Krishnakar Bharati (PW/13), Nitin Sen (PW/8) and Balipal (PW/2) have denied that at the time of incident Badri Prasad (PW 1), his brothers and some other persons went to the farm of accused Jagdish and abused Shakuntala (DW 6) and they have killed deceased Ramesh Sen. Shakuntala (DW/6) in paragraph 10 of cross-examination stated that she knows deceased Ramesh Sen, he has been murdered but she can not say that who has murdered deceased Ramesh Sen. Further she stated that Badri Prasad Choudhary (PW/1) etc. would have murdered deceased. 52. Saraswati (DW/1) in paragraph 5 of cross-examination stated that, she did not see that who was beating deceased. Gulabiya (PW/3) stated in paragraph 1 of examination-in-chief that she knows deceased Ramesh but in paragraph 3 she stated that Badri Prasad (PW/1) and his brothers was chasing a man and beating him. She has not clearly stated that they were doing the same with deceased Ramesh. Gudia Choudhary (DW/4) in paragraph 1 of her examination-in-chief stated that she knows Badri Prasad (PW/1) and his brothers but in paragraph 4 of cross-examination stated that she does not know Badri Prasad (PW/1). Gendra Choudhary (DW/5) admitted in paragraph 3 of her cross-examination that she did not see Badri Prasad (PW/1) beating someone. Ganesh Prasad Choudhary (DW/8) and Shakuntala (DW/6) has not stated anything in this respect that Badri Prasad (PW/1) and his brother have killed Ramesh Sen. Therefore, it is clear that statement of aforementioned witnesses is not definite in nature. Appellant has not put any question in cross-examination of Badri Prasad (PW/1), Balipal (PW/2), Sanjay Choudhary (PW/3), Harprasad Choudhary (PW/5) that Badri Prasad (PW/1) and his brother have murdered deceased Ramesh Sen. Therefore statement of defence witnesses appears to be after thought. Hence, statement of aforementioned defence witnesses is not reliable. 53. Therefore, it is not proved that Badri Prasad Choudhary (PW/1) and his brothers murdered deceased Ramesh Sen and falsely implicated the appellant and his family members 54. Brijlal Arya (DW/7) is a photographer, he stated that he had taken photographs Article A/1 to A/11 from the land of accused persons situated at Kripalpur. Further he stated that he had taken photographs of house of accused which was burnt when they were in jail. Brijlal Arya (DW/7) is a photographer, he stated that he had taken photographs Article A/1 to A/11 from the land of accused persons situated at Kripalpur. Further he stated that he had taken photographs of house of accused which was burnt when they were in jail. In paragraph 3 of cross-examination he admitted that he had taken photographs in year 2006 (i.e. at around 10 months later of incident) therefore, aforesaid photographs are not relevant in this case. 55. Badri Prasad (PW/1) in para 12 of cross-examination has denied that at the time of incident, he and deceased tried to kill accused persons, deceased had a revolver. He further denied that deceased had beaten co-accused Ganesh (DW/8). He admitted that co-accused Ganesh (DW/8) had beaten deceased Ramesh, resultantly deceased felt down. He also admitted that he went to defend but then he was also beaten. Balipal (PW/2), Sanjay Kumar (PW/3) and Ram Naresh Sen (PW/4) also denied that at the time of incident, deceased took out a revolver from which appellant was frightened. they further denied that because of this appellant has beaten deceased and injured Badri Prasad (PW/1). Witnesses also denied that deceased threatened to give him the land. Therefore it is clear that aforementioned witnesses have denied the above defences of appellant. Appellant has also not produced any medical report which shows that accused persons received injuries in the incident, therefore, aforementioned defence of accused persons is not reliable. 56. In respect of agreement to sale executed by appellant in favour of deceased. Prosecution has examined Ramsiya Choudhary (PW/10). He did not support the prosecution case therefore he was declared hostile by the prosecution and cross-examined in paragraph 2 of cross-examination, he admitted the suggestion of prosecution that after getting Rs. 25,000/-as earnest money appellant and his brother Prahlad (PW/15) executed an agreement to sale the land in favour of deceased but in paragraph 4 of cross-examination, he admitted the suggestion of appellant that there was no written agreement to sale and deceased has not given money to appellant before him. Prahlad Choudhary (PW/15) also has not supported the case of prosecution and after declaring him hostile in paragraph 2 of cross-examination he has denied the suggestion of prosecution that appellant has executed an agreement to sale the land in favour of deceased before Ramsiya Choudhary (PW/10). 57. Prahlad Choudhary (PW/15) also has not supported the case of prosecution and after declaring him hostile in paragraph 2 of cross-examination he has denied the suggestion of prosecution that appellant has executed an agreement to sale the land in favour of deceased before Ramsiya Choudhary (PW/10). 57. Nitin Sen (PW/8) is son of deceased Ramesh Sen, has deposed that appellant after receiving earnest money of Rs. 25,000/-has executed an agreement to sale the land in favour of his father Ramesh Sen. Agreement to sale was a substantial evidence, but the same has not been produced in the case. Hence, statement of Nitin Sen (PW/8) is also not reliable. 58. Therefore it is not proved that before incident appellant has executed an agreement to sale the land in favour of deceased but the case depends on the statement of the injured and eye-witnesses, therefore, merely non-filing of agreement to sale does not affect the prosecution case and on this ground, the statement of aforementioned witnesses in respect of incident can not be discarded. 59. In view of aforementioned discussions, it is clear that Badri Prasad (PW/1) categorically stated that at the time of incident appellant Jagdish Prasad and co-accused Ganesh Prasad Choudhary dealt a blow by spade and axe on the head of deceased Ramesh Sen and appellant Jagdish Prasad and co-accused Ganesh Prasad Choudhary also dealt a blow by spade and axe to this witness also. Statement of this witness is also supported by eye-witnesses Balipal (PW/2), Sanjay Kumar Choudhary (PW/3), Ram Naresh Sen (PW/4) and Dr. S.B. Singh. Therefore it is proved that the aforementioned injuries of deceased Ramesh Sen and injured Badri Prasad (PW/1) were caused by appellant Jagdish Prasad and co-accused Ganesh Prasad Choudhary in furtherance of their common intention. 60. Next question arises that, whether the appellant Jagdish Prasad and co-accused Ganesh Prasad inflicted such bodily injury to deceased Ramesh Sen with intention to cause death. 61. Learned counsel for the appellant has placed reliance on the judgment of Bahadur Singh (Supra) where the Hon’ble Apex Court has held that:- “Having regard to the nature of injuries on the accused particularly Jit Singh and Bahadur Singh (the appellants) it is clear that they must have received injuries at the hands of the deceased and his followers who were in the Court premises. The accused have taken a specific plea in the trial Court that the deceased and other P.Ws dealt blows with dang (lathi). A-1 and A- 5 inflicted two injuries on the deceased. No doubt the right of self-defence cannot be weighed in golden scales. But the accused by using gandasa and inflicting such serious injuries have exceeded the same. Having gone through the medical evidence as well as the specific plea of the accused, a reasonable doubt arises regarding their right of self-defence but in our view, they have exceeded the same. The injuries on the decease were very serious and the accused have used heavy cutting weapons like gandasas. Therefore they have clearly exceeded the right of self-defence. Therefore Exception II to section 300 is attracted and the offence committed by them would be one punishable under section 304 Part I I.P.C. Accordingly, we set aside the conviction of the appellants under section 302 I.P.C. and the sentence of imprisonment for life. Instead we convict them under section. 304 Part I I.P.C. and sentence each of them to suffer seven years R.I. The appeal is partly allowed.” 62. In the judgment of Arjun and Anr. (Supra), the Hon’ble Apex Court has held that:- “25. When and if there is intent and knowledge, then the same would be a case of section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under section 304 Part I IPC. The conviction of the appellants under section 304 read with section 304 IPC is modified under section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under section 304 Part I IPC, the sentence is modified to that of the period already undergone.” 63. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under section 304 Part I IPC, the sentence is modified to that of the period already undergone.” 63. In the judgment of Vaman Rao (Supra), the Hon’ble Apex Court has held that:- “27. In the present case, as held in foregoing paragraphs the incident had happened all of sudden, there was no premeditation, the act was done in heat of passion. There is also evidence that the deceased and appellant both had beaten to each other by fists and kicks. The deceased and P. W. 1 went to the house of the appellant. The deceased abused him in filthy language.” 64. In the judgment of Dharam & ors. (Supra), the Hon’ble Apex Court has held that:- “16. The other question which now remains to be considered is as to what is the exact nature of the offence committed by the appellants. The injury, which proved to be fatal, is 10cm x 3cm. x 3cm on left parietal bone which fractured the underlying bone and pierced the brain matter. We do not propose to hold that such an injury, if caused, would not attract the provisions of Section 302, IPC. Nevertheless, the question which requires serious consideration is whether having regard to the peculiar circumstances in which the incident took place and the fact that the deceased and the appellants happened to be blood relations, this particular injury, which was found to be sufficient in the ordinary course of nature to cause death in the instant case, was an injury intended by the appellants. Having regard to the nature of the injuries sustained by both the closely related parties, we are of the view that the fatal injury was not inflicted with the intention to cause death or an injury likely to cause death of the deceased. We feel that in the very nature of things, the appellants could not have entertained any intention to cause death of their brother/ uncle. We are, therefore, of the opinion that the offence committed by the appellants would fall within the ambit of Section 304, Part-II, IPC.” 65. We feel that in the very nature of things, the appellants could not have entertained any intention to cause death of their brother/ uncle. We are, therefore, of the opinion that the offence committed by the appellants would fall within the ambit of Section 304, Part-II, IPC.” 65. On the above discussions, it is found that death of deceased was homicidal in nature, therefore, it is also relevant that to consider here Section 300 of IPC which runs as under:- “300 Murder-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.” 66. The following observation was made by this court in the case of Manoj Singh vs State Of M.P.[I.L.R 2022 M.P. 924]:- (29) In the case of State of Rajasthan v. Kanhaiyalal reported in (2019) 5 SCC 639 , this it has been held as follows:- “7.3 In Arun Raj [Arun Raj v. Union of India (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows. 7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.” 67. Looking at the evidences adduced describing the circumstances just before the incident, where Badri Prasad (PW 1) and deceased Ramesh Sen went to the house of appellant Jagdish Prasad with respect to talk about the agreement to sale the land. It is certain that there was no provocation from the side of Badri Prasad (PW 1) and deceased Ramesh Sen, therefore, the case does not fall in the first exception u/s 300 of IPC. On the other hand the fourth exception to section 300 of IPC can also not be applied in the instant case as it is apparent that Badri Prasad (PW/1) and deceased Ramesh Sen went to talk about the agreement to sale the land wherein the accused persons without the control over their rage started to give blows right after a few arguments with their spade and axe respectively to Badri Prasad (PW1) and deceased Ramesh Sen, irrespective of the fact that the deceased and injured were there without any object in order to get into a fight with the accused persons, which clearly shows that the accused persons took the undue advantage or acted in a cruel manner or unusual manner. Therefore, it can be concluded that the accused persons acted in a cruel manner which debars them to get them into the ambit of fourth exception to section 300 of IPC. Act of the appellant neither comes in ambit of any other exception of section 300 of IPC. Looking to the nature of injuries on the head of deceased, it appears that accused persons have caused injuries to deceased which falls under section 300 of IPC. Act of the appellant neither comes in ambit of any other exception of section 300 of IPC. Looking to the nature of injuries on the head of deceased, it appears that accused persons have caused injuries to deceased which falls under section 300 of IPC. Act of accused persons would not fall in any of the exceptions of Section 300 of IPC. It can be observed that the blows inflicted on the deceased were in furtherance of common intention of accused which were formed at spur. Therefore, it is clear that the accused persons have intentionally caused death of deceased in furtherance of their common intention, and have voluntarily caused hurt to injured Badri Prasad (PW/1). 68. Hence, the learned trial court has properly assessed and evaluated the evidence available on record and has rightly convicted and sentenced appellant u/s 302/34 and 323/34 of IPC. 69. In the view of above discussion, we find that there is no error committed by the learned trial court in convicting the appellant/ accused for the aforementioned offences and sentence passed by the learned court is also adequate. Therefore, impugned judgment is hereby affirmed. The appeal being devoid of merits, is hereby dismissed. Accused Jagdish on bail hence, his bail bonds are hereby cancelled. He is directed to surrender before the trial Court within 15 days from the pronouncement of this judgment.