JUDGMENT : Kanhaiyaji, J. 1. The appellants have been convicted under Section 302 read with Section 34 of the Indian Penal code and sentenced to rigorous imprisonment for life each by Shri D.N. Sinha, Second Additional Sessions Judge of Monghyr, in Sessions Trial No. 8 of 1967, for having committed murder of Mehtarba, a baby aged about five months in village Kusmadih. Shortly stated, the prosecution story is that on the 5th February, 1966, at about 7 A.M., Most. Barho Devi (P.W. 11) her Sautin (Co-wife) Phul Kumari (P.W. 10) and her daughter Kaushalya (P.W. 9) were sitting in the angan of their house and were warming themselves with a borsi, and Mehtarba was lying on a cot. The three accused, namely, Saryug, Kailash and Kailoo entered into the angan; and, Saryug throttled Mehtarba to death whereas Kailash caught Barho Devi and Phul Kumari and Kailoo caught Kaushalya. The three females started weeping and crying which attracted attention of Paro Devi (P.W. 1), Gobardhan Mahto (P.W. 2), Bisheshwar Mahton (P.W. 5.) and Jamuna Mahton (P.W. 6) who all came to the place of occurrence and the three females narrated to them the incident in detail. Baburam Mahton (P.W. 8), the husband of Barho Devi and Phul Kumari, was not present in the house on that day. He returned home in the evening from Monghyr, and then he learnt about the entire occurrence from his two wives, Barho and Phul Kumari, and his daughter Kaushalya. Baburam Mahto took the dead body of his son, Mehtarba, and the females, namely, his two wives and his daughter, on a bullock cart to village Anjanighat, and from there, he came to Monghyr via Barhiya. Barho Devi produced her dead child before the Sub-Inspector of Police of Town Police Station, Monghyr. 2. Sri Jagdish Prasad Singh (P.W. 4), Sub-Inspector of Police attached to the Town Police Station, recorded the Fardbeyan of this case on the statement of Barho (P.W. 11). The dead body of the baby was sent for postmortem examination at Sadar Hospital, Monghyr. As the place of occurrence lay within the jurisdiction of Sheikhpura Police Station, therefore the Fardbeyan was forwarded to that police station. Sri Bipin Bihari Prasad Srivastava (P.W. 12), Assistant Sub-Inspector of Police of Sheikhpura Police Station, drew up the formal first information report (Ext. 3) on the basis of the Fardbeyan (Ext. 2) and took up the investigation. As the place of occurrence lay within the jurisdiction of Sheikhpura Police Station, therefore the Fardbeyan was forwarded to that police station. Sri Bipin Bihari Prasad Srivastava (P.W. 12), Assistant Sub-Inspector of Police of Sheikhpura Police Station, drew up the formal first information report (Ext. 3) on the basis of the Fardbeyan (Ext. 2) and took up the investigation. He went to the place of occurrence, which is eight miles north of the police station, at 2.30 P.M. on the same day. He inspected the place of occurrence which was the house of Barho in village Kusmadih and prepared a sketch map (Ext. 4). He examined Most. Barho (P.W. 11), Kaushalya (P.W. 9), Baburam (P.W. 8), Phul Kumari (P.W. 10), Paro (P.W. 1) and Gobardhan Mahto (P.W. 2). He found the accused absconding. On the 8th February, 1966, the investigating officer examined Biso (P.W. 5) and Jamuma (P.W. 6), and on the 16th February, 1966, he made over the charge of investigation of the case to Sri D.D.-Shukla (P.W. 7), the Sub-Inspector of Police, who also went to the place of occurrence and re-examined all the prosecution witnesses. He received the post-mortem report on the 20th February, 1965. After completing the enquiry, he submitted charge sheet against the three accused persons on the 10th June, 1966. 3. The Sub-divisional Magistrate took cognizance of the case and Shri A.P. Chaudhary, Munsif-Magistrate, First Class, conducted the commitment enquiry under Chapter XVIII of the Code of Criminal Procedure and, finding a prima facie case made out against the accused, committed them to the Court of Sessions to stand their trial under Section 302 read with Section 34 of the Indian Penal Code. 4. The accused denied that they had anything to do with the occurrence. It is gathered from the trend of the cross-examination of the prosecution witnesses that the baby died of gas poisoning or killed by Barho herself as she used to have fits of epilepsy or by her Sautin (co-wife) Phul Kumari due to jealousy, and the accused persons have been falsely implicated due to enmity. 5. The prosecution case is supported by three eye witnesses, namely, Kaushalya (P.W. 9), Phul Kumari (P.W. 10) and Barho Devi (P.W. 11), who saw the occurrence, and Most. 5. The prosecution case is supported by three eye witnesses, namely, Kaushalya (P.W. 9), Phul Kumari (P.W. 10) and Barho Devi (P.W. 11), who saw the occurrence, and Most. Paro (P.W. 1), Gobardhan Mahton (P.W. 2), Bisheshwar Mahton (P.W. 3) and Jamuna Mahton (P.W. 6) who came immediately after the occurrence and heard about it and were also informed of the names of the culprits. 6. The learned Judge believed the prosecution case on evidence before him. He was satisfied that the three appellants did participate in this occurrence. Some of the material conclusions arrived at by the learned Judge are that the baby was killed on account of strangulation; that the eye witnesses were the natural witnesses who could be present in the angan, that the entire incident must have come to an end within a twinkling of an eye, that there was no contradiction in the statements of the eye-witnesses and that their evidence was consistent throughout. The learned Judge, accordingly, convicted and sentenced the appellants as stated earlier. 7. There are two important factors in this case which require careful consideration. It is admitted that there is one police outpost in village Kusmadih at a distance of about 100 yards from the place of occurrence, but no information was lodged at the police outpost. It is also admitted that Sheikhpura police station is about eight miles from the place of occurrence, but no information was lodged at the police station, rather it was lodged at the Town Police Station at Monghyr after 24 hours. The prosecution has explained the delay. The evidence of the prosecution witnesses is that although there is a police outpost in the village, constables or Assistant Sub-Inspector of Police do not live at the outpost regularly, and, on the date of occurrence also no constable or Jamadar was present. Dindayal Shukla (P.W. 7), Sub-Inspector of Police, Sheikhpura, said that in village Kusmadih there is a police outpost at a distance of about 100 yards from the place of occurrence, and one Jamadar and some constables are posted there. He has further stated that the Jamadar with family resides at the police station, but he also manages the affairs of the outpost. Therefore, perhaps on the day of the occurrence, there was no police at the outpost. The delay in giving the information has been explained by Barho (P.W. 11) in her fardbeyan. He has further stated that the Jamadar with family resides at the police station, but he also manages the affairs of the outpost. Therefore, perhaps on the day of the occurrence, there was no police at the outpost. The delay in giving the information has been explained by Barho (P.W. 11) in her fardbeyan. It is stated therein that her husband had gone to Monghyr court and was not present at the house. When he returned at 8 O'clock in the evening on Saturday, they did not go to Sheikhpura police station out of fear that the dead body might be snatched. She also did not come but in the day and take the dead body to Sheikhpura police station out of fear that the dead body might be snatched. It is also gathered from the evidence of Baburam (P.W. 8) that out of fear of the accused he took the dead body of his new born son to his village Anjani and from there he took it to Monghyr. This is supported by Barho (P.W. 11). The fact that there was no male inmate in the house of the informant at the time of the occurrence or during the whole day is not disputed. There were only two adult females and one girl in the house of the informant. It is not unnatural that those females waited for Baburam to return who came to village Kusmadih between 7 and 8 P.M. on the date of occurrence. Baburam had enmity not only with the accused but also with many other residents of village Kusmadih. This finds support from the JUDGMENT : of G.R. Case No. 566 of 1963 (State V. Mishri Mahto and others) disposed of on the 18th January, 1965 (Ext. B). In this case, 27 persons were accused for voluntarily causing hurt to Baburam and his wife, Phul Kumari. Baburam is a resident of village Anjani, and he was married with Barho of village Kusmadih. Therefore, he took the dead body of his new born son Mehtarba and the females to village Anjani which is north of village Kusmadih. There seems to be some truth that Baburam was afraid to go through village Kusmadih for lodging the information at Sheikhpura Police Station which is south of that village. Baburam proceeded north and reached Monghyr in the morning, where his wife Barho gave fardbeyan at Town Police Station, Monghyr. There seems to be some truth that Baburam was afraid to go through village Kusmadih for lodging the information at Sheikhpura Police Station which is south of that village. Baburam proceeded north and reached Monghyr in the morning, where his wife Barho gave fardbeyan at Town Police Station, Monghyr. In the circumstances, I hold that the delay has been explained. The delay of 24 hours in going to the police in this case is not remarkable. The first information report is not a substantive piece of evidence. It can be used only to corroborate or contradict the evidence under Sections 157 and 145 of the Evidence Act. Therefore, it is to be seen whether the prosecution case has been established on evidence in court. 8. Learned Counsel for the appellants also pointed out that even after receiving the fardbeyan, Sheikhpura police made delay in starting investigation. He pointed out that Bipin Bihari Prasad Srivastava, Assistant Sub-Inspector of Police at Sheikhpura, went to village Kusmadih at 2.30 P.M. on the 7th February, 1966. There is no substance in this contention. Jagdish Prasad Singh (P.W. 4) said that after recording the Fardbeyan he forwarded it to Sheikhpura Police Station for drawing up a formal first information report and for investigation, because the place of occurrence lay within that police station. Bipin Bihari Prasad Srivastava (P.W. 12), who first investigated the case, said that on the 7th February, 1966, he received Fardbeyan from Monghyr Town Police Station, on the basis of which he drew up the formal first information report and started investigation. It is not known when this fardbeyan was received by Sheikhpura Police--Neither Bipin Behari Prasad Srivastava (P.W. 12) who first investigated the case nor Dindayal Shukla (P.W. 7) who took over charge of the investigation from P.W. 12 on the 16th February, 1966, was cross-examined on this point. Therefore, it is not possible to hold that there was inordinate delay by Sheikhpura police is starting investigation of the case. 9. It was next argued by learned Counsel for the appellants that Mehtarba died due to asphyxia caused by gas poisoning and the appellants have been implicated due to enmity. The medical evidence, however, disproves the possibility of the death of the baby having been caused by gas poisoning. Dr. 9. It was next argued by learned Counsel for the appellants that Mehtarba died due to asphyxia caused by gas poisoning and the appellants have been implicated due to enmity. The medical evidence, however, disproves the possibility of the death of the baby having been caused by gas poisoning. Dr. P.N. Jha (P.W. 13) who conducted the post-mortem examination on the dead body of the baby, Mehtarba, confirmed the prosecution case by his evidence and opinion that Mehtarba was murdered by strangulation. He found marks of injury on the neck of the deceased, which was an ecchymosis extending from mid-line going backward and upward about 1" wide and lateral 2" wide extending from supra clavicular fossa upward to a point adjacent to ear lobules. On dissection, ecchymosis of farcial layers and muscular layers of neck extending beyond the area described was found. On deeper dissection, there was collection of blood in the muscular layer. The hyoid bone was cartilaginous and there was no fracture. The ecchymosis was ante-mortem in nature. On opening the thoracic cavity on the right side there was about 2 ounces of blood in the pleural cavity. There was sub-pleural ecchymosis. The lung was congested. On cutting, blood oozed out from alveoli. On the left side about one ounce blood was found in the pleural cavity. Sub-pleural ecchymosis was found and the lung was congested. In the opinion of the doctor, the death of Mehtarba was due to asphyxia due to strangulation. He is also corroborated by the post-mortem report (Ext. 5). The doctor's evidence clearly shows that the outward injury, that is, ecchymosis on the neck of the deceased baby was ante-mortem in nature. Therefore, I fully approve of the finding of the learned Judge that baby Mehtarba was killed by strangulation. 10. It was, however, not argued in this Court that Phul Kumari (P.W. 10) had killed the baby or that the baby died at Monghyr. Enmity between the parties is admitted. Barho got five bighas of land and a house from her father in village Kusmadih. She had sold a portion of her land to Most Nikhedi, the mother of the accused, and she had gifted her other lands to Saudagar, the son of her another sister during the period when she was not pulling on well with her husband. Barho got five bighas of land and a house from her father in village Kusmadih. She had sold a portion of her land to Most Nikhedi, the mother of the accused, and she had gifted her other lands to Saudagar, the son of her another sister during the period when she was not pulling on well with her husband. But when she again came to terms with her husband, she and her husband both started claiming the land and got the deed of gift executed in favour of Saudagar set aside by the Collector on the ground that the transfer was made without the permission of the Collector. It was during the pendency of that case that Sarjug managed to take a sale deed from Saudagar in respect of the very same lands of Most. Barho which she had gifted to Saudagar. Ext. 8 is the copy of the ORDER :in a proceeding under Section 144 of the Code of Criminal Procedure which was between Barho Devi on the one side and Saudagar Mahton and others on the other. It appears from an ORDER :dated the 31st January, 1966 (Ext. 8/1) a proceeding in regard to the annulment of the deed of gift aforesaid that the Collector set aside the gift of the land and Baburam was allowed to take possession of the land in question. There was, therefore, apparent enmity going on between the two families, that is, between the family of the accused on one hand and the family of Most. Barho on the other. It is also significant that the ORDER :for setting aside the gift was passed on the 31st January, 1966 and the occurrence took place on the 5th February, 1966. It is a well-known fact that enmity is a double-edged weapon, and it cuts both ways. The relationship and enmity are factors which put the court of law to scrutinise the evidence of witnesses with care and caution. 11. Now, I will decide whether the findings of the learned Judge based on the evidence of the prosecution witnesses are correct. According to the learned Judge, P.Ws. 9, 10 and 11 are direct eye witnesses of the occurrence. 11. Now, I will decide whether the findings of the learned Judge based on the evidence of the prosecution witnesses are correct. According to the learned Judge, P.Ws. 9, 10 and 11 are direct eye witnesses of the occurrence. It has been contended by learned counsel for the appellants that the identification of the appellants by Phul Kumari (P.W. 10) should not have been relied upon by the learned Judge as she was not actually an identifying eye witness. There is force in this contention, and it ought to be accepted. Phul Kumari has said that she did not know the three accused persons from before, and there was no test identification in this case. The substantive evidence of a witness is his statement in court, but the purpose of test identification is to test that evidence, as the safe rule is that the sworn testimony of a witness in court as to the identity of the accused, who are strangers to the witness, generally speaking, requires corroboration which should be in the form of an earlier identification parade. No explanation has been pointed out by the prosecution to this rule of corroboration by an earlier identification where the court can safely rely on it without previous identification. However, there is nothing on the record to doubt the truth of the prosecution case and the veracity of P. Ws. 9 and 11 who are direct eye witnesses of the occurrence. Their evidence is consistent throughout and is corroborated by the first information report and by Phul Kumari (P.W. 10) minus identification. They are the natural witnesses who can be present in the angan of Barho in the early morning. Gobardhan Mahton (P.W. 2) fully corroborated the statements of P.Ws. 9 to 11 in the court of the committing Magistrate, but he completely resiled from that statement in the Court of Sessions. He was declared hostile and was cross-examined on behalf of the prosecution. His attention was drawn to the statement made by him in the committing court. His attention was also drawn to his statement before the police in ORDER :to contradict his statement in the Court of Sessions. The evidence of this witness given in the committing court was tendered under Section 288 of the Code of Criminal Procedure in the Court of Sessions. His attention was also drawn to his statement before the police in ORDER :to contradict his statement in the Court of Sessions. The evidence of this witness given in the committing court was tendered under Section 288 of the Code of Criminal Procedure in the Court of Sessions. The circumstances amply prove that this witness was gained over by the defence and so he became hostile to the prosecution in the Court of Sessions. No enmity or relationship was suggested to this witness. This witness is independent, and his evidence given in the committing court, to which his attention was drawn in the Sessions Court, corroborated the prosecution case. I fully approve of the view taken by the learned Judge that preference should be given to the statement of this witness made in the committing court to that made in the Court of Sessions. 12. I, however, do not agree that Bisheshwar Mahton (P.W. 5) and Jamuna Mahton (P.W. 6) went to the place of occurrence on hearing hulla. Bisheshwar (P.W. 5) is the son of Basant Mahto who was the Sarpanch of the village. There was a long standing enmity between the family of this witness and the accused persons. Jamuna Mahto (P.W. 6) is Barahil of P.W. 5 Bisheshwar Mahto. Admittedly, both are inimically disposed towards the appellants inasmuch as they had cases with the accused. They said that they never gave information of the occurrence to the Chaukidar or Daffadar of the village. These two witnesses were examined by Bipin Bihari Prasad Srivastava (P.W. 12) on the 8th February, 1966. The late examination of these two witnesses throws a great doubt on the veracity of their statements. It is improbable that these two witnesses having seen the occurrence will keep quiet and only-state before the police not on the day the Assistant Sub-Inspector of Police went to the village but on the next day. The testimony of these two witnesses is full of contradictions and improbabilities. Paro (P.W. 1.) has been only tendered for cross-examination. 13. It appears after a scrutiny of the evidence that the prosecution story is fully supported by the evidence of two witnesses, namely, Barho (P.W. 11) and Kaushalya (P.W. 9) corroborated by Phul Kumari (P.W. 10) and Gobardhan (P.W. 2) and the Fardbeyan (Ext. 2). So, even if P.Ws. Paro (P.W. 1.) has been only tendered for cross-examination. 13. It appears after a scrutiny of the evidence that the prosecution story is fully supported by the evidence of two witnesses, namely, Barho (P.W. 11) and Kaushalya (P.W. 9) corroborated by Phul Kumari (P.W. 10) and Gobardhan (P.W. 2) and the Fardbeyan (Ext. 2). So, even if P.Ws. 5 and 6 are excluded, in my opinion, there is sufficient good evidence on the record to support the prosecution case. 14. A point of law was raised by learned counsel for the appellants. He contended that it is clear on evidence of Phul Kumari (P.W. 10) and Barho (P.W. 11) that appellant no. 2 Kailash Mahton and appellant no. 3 Kailoo Mahton caught hold of these witnesses and Kaushalya (P.W. 9) after the commission of the offence was complete. Hence, they cannot be convicted for the offence of murder under Section 302 read with Section 34 of the Indian Penal Code. There is much force in this contention, and it must be accepted. Barho (P.W. 11) in her examination-in-chief said that Saryug, Kailash and Kailoo came to his angan. Saryug killed her son who was sleeping on a khatola by pressing his neck. Kailash caught hold of her and Phul Kumari, and Kailoo caught hold of Kaushalya and Gaye slaps whereafter they fled away. This is supported by Phul Kumari (P.W. 10). On the other hand, Kaushalya (P.W. 9) said that when Saryug pressed the neck of her brother, Kailoo had caught her and Kailash had caught her two mothers. To this aspect of the case, I would like to give preference to the testimony of the two elderly women namely, Phul Kumari and Barho, to that of Kaushalya. The question whether a number of persons joined in the commission of offence is a question of fact. On evidence before me, I am satisfied that appellant no. 2 Kailash Mahton and appellant no. 3 Kailoo Mahton did not act in furtherance of the common intention of committing murder of baby Mehtarba. Mr. Keshri Kishore Sharan, learned counsel for the State, contended that on the basis of the evidence of Kaushalya (P.W. 9), it should be held that these two appellants also committed the offence in furtherance of the common intention to commit murder of baby Mehtarba. I do not feel inclined to accept this. 15. Mr. Keshri Kishore Sharan, learned counsel for the State, contended that on the basis of the evidence of Kaushalya (P.W. 9), it should be held that these two appellants also committed the offence in furtherance of the common intention to commit murder of baby Mehtarba. I do not feel inclined to accept this. 15. For the reasons stated above, the conviction of appellant Sarjug Mahton under Section 302/34 is altered to one under Section 302 of the Indian Penal Code simpliciter and the sentence of imprisonment for life passed by the learned Judge is maintained. So far as appellants Kailash Mahton and Kailoo Mahton are concerned, they deserve acquittal and are, therefore, acquitted. As a result, the appeal of appellant Sarjug Mahton is dismissed with the modification in his conviction as stated above. The appeal of appellants Kailash Mahton and Kailoo Mahton is allowed and the conviction and sentence imposed on them are set aside. They are discharged from their bail bonds. Bahadur, J. I agree. Appeal allowed.