Judgment M. P. Varma, J. 1. Out of the three appellants, appellant no.2 Ram nandan Yadav and appellant no.3 Nanhu Yadav are full brothers. They are sons of Rajgir Yadav. Appellant no.1 Dharichhan Yadav is son of appellant no.2 Ramnandan Yadav. They were put on trial along with chanarik Yadav, another son of Rajgir Yadav in the Court of Shri A. Tripathi, 5th Additional Sessions Judge at Gaya, on charges under Sec.302 read with 34 of the Indian Penal Code and also under Sec.323 of the indian Penal Code. Chanarik Yadav has been acquitted whereas the learned sessions Judge held the threee appellants guilty of the charges under section 302 Part II read with Sec.34 of the Indian Penal Code and also under Sec.323 of the Indian Penal Code and sentenced each one of them to suffer rigorous imprisonment for 8 years and also one year and each charge respectively, against which this appeal arose. 2. The case arose on the statement of P. W.6, Naresh Yadav. It is stated that on 14-11-1971, these appellants alongwith Chanarik Yadav had cut the pushta of the house of the informant and also all over which there was a brawl between them This happened sometimes in the day ; the banging over of which continued till late in the evening and it is stated that when the informants father Ram Das Yadav was getting back from western outskirts of the village after easing himself and reached the fringe of the khalihan of the accused, Chanarik gave a call and on his instigation all other accused, that is, the appellants pounced upon Ram Das Yadav and began assaulting with lathis. It is said that there are sirish and pipal tree near about it, the details of which will be mentioned at a latter stage. Ram das Yadav raised a cry, which drew the attention of his two brothers P. W.4 sahdeo Yadav and P. W.5 Somar Yadav and also his son P. W.6 Ram naresh Yadav. They all rushed, intervened and wanted to save Ram Das yadav. The three appellants Dharichhan, Ram Nandan and Nandu fell upon them also and it is stated that they assaulted P. W.4 Sahdeo Yadav and appellant Dharichhan assaulted the informant P. W.6 Naresh Yadav. Ram das Yadav, on getting the blows reeled down unconscious. They all rushed, intervened and wanted to save Ram Das yadav. The three appellants Dharichhan, Ram Nandan and Nandu fell upon them also and it is stated that they assaulted P. W.4 Sahdeo Yadav and appellant Dharichhan assaulted the informant P. W.6 Naresh Yadav. Ram das Yadav, on getting the blows reeled down unconscious. According to prosecution some other villagers also ran from Devi Asthan, a nearby place, whereupon accused persons fled away. Ram Das Yadav was picked up and taken home and was put on a cot and rushed to Aurangabad hospital for immediate medical aid where his son P. W.6 Ram Naresh Yadav, as stated above, gave his Fard Beyan to the S. l. of Police, who on getting the information, had arrived. Ram Das Yadav could not regain consciousness and died two days after in the morning of 17-11-1971 there at the hospital. Autopsy over his dead body was conducted by Dr. R. C. Ram the same day (this witness was examined in the court of the Magistrate who conducted the enquiry under Chapter XXVIII of the Code of Criminal Procedure (old Code) and his evidence was tendered in the Sessions Court ). The doctor found the following ante-mortem injuries on the body of the deceased : - (i) One contusion 2" x " on the- centre of the head fracturing the scalp bone underneath. The size of the fracture was 14" long and was spread over left temporal bone both perital bone and right frontage bone . (ii) Contusion 10 "x " on the front of the chest. (iii) Lacerated wound 1" x 1/4" x lip thick with fracture of upper two incisor and one canine teeth of left side and first two upper incisor of the teeth ; (iv) Contusion with abrasion over forehead 1" x "; (v) Lacerated wound 1" x " x bone deep on the left lower eyelid margin ; (vi) III defined contusion on the left shoulder. (vii) III defined contusion on the back of the chest left side. According to this doctor all the aforesaid injuries were caused by hard and blunt substance and death was due to shock and haemorrahage due to fraceture of the scalp as a result of injury no.1 and after effect of injuries nos.4 and 5. Injury no.3 was grievous in nature and the doctor on dissection found stomach empty. On 14-11-1971 this Dr. Injury no.3 was grievous in nature and the doctor on dissection found stomach empty. On 14-11-1971 this Dr. R. C. Rarn had examined P. W.6 Ram Naresh Yadav at about 10-30 p. m. and had found the following injuries on his person : (i) One lacerated wound 1" x 1/4" x scalp deep on the centre of the head ; (ii) Lacerated wound 1" x 1/4" x scalp deep on chest in front of injury no.1 ; (iii) One contusion 3" x " on the back of the left chest ; (iv) Abrasion trangular in shape " each side of the right arm. According to the doctor all the injuries were possible by some hard and blunt substance and the age of the injuries appear to be fresh. 3. On the same day, that is, on 14-11-1971 this doctor further examined P. W.4 Sahadeo Yadav and found the following injuries on his person: (i) One contusion 1" x " with abrasion on the left perital area of the head ; (ii) Contusion with abresion 1" x " on the back of the centre of the head ; (iii) Contusion with abrasion 2" x " on the back of the head right side ; (iv) Contusion with abrasion 1" x " on the back of the right shoulder; (v) Abrasion " x 1/4" on the right wrist ; (vi) Abrasion on the top of the right elbow left knee ; (vii) Contusion 1" x " on the front of the chest. Doctor opined that all the injuries were possible by hard and blunt substance and the age of the injuries at the time of examination appear to be fresh. 4. Prosecution examined eight witnesses in all to prove its case and i find, as pleaded before this Court that the accused-appellants had also put forward a plea in defence ; it was stated that on the same date at about 4-30 p. m. the members of the informants party were cutting Aar of plot no.8, khata no 54 to which the accused protested, A quarrel arose, the accused persons ran. It is said that the informants party chased the accused and assaulted them in their khalihan with Garansa, sword and lathi, on the statement of Nanhu yadav a counter case was lodged. It is said that the informants party chased the accused and assaulted them in their khalihan with Garansa, sword and lathi, on the statement of Nanhu yadav a counter case was lodged. In support of the defence version the accused had examined a doctor Shri Rameshwar Nath Sharan who was then posted at Aurangabad. He examined all the three appellants, that is, Nanhu Yadav alias Nandu Yadav and also Dharichhan Yadav and ram Nandan Yadav. He had examined the other accused Chanarik Yadav also. Who has already been acquitted by the trial court, as stated above. The doctor found the following injuries on the person of Dharichhan Yadav. (i) One oblique lacerated wound 1 1/2" x 1/4" x skin deep with surrounding swelling on the back of the head. The in jury was simple caused by hard and blunt substance an the age of the injury was within 24 hours. 5. The following injuries were found on the person of Ramnandan yadav: (i) One incised wound 21/4" x1/4" scalp deep on the left side of the head at the level of the ear ; (ii) One incised wound on the outside of super half of left arm 2" x 1/2" x skin deep ; (iii) One oblique echymosis 6" x 1/2" on the outer side of right arm. All the injuries were simple in nature nos. (i), (ii) by sharp cutting weapon may be a sword, and no (iii) by hard and blunt substance like lathi, and the age of the injuries was about 24 hours. 6. The following injuries were found on the person of Nanhu Yadav: (i) One incised wound on the dorsum of the left foot in the centre " x " on bone deep ; (ii) One incised wound on the inner side of the dorsum of right foot 1" x 1/2" bone deep. The underlying bone very painful and tender ; (iii) One lacerated wound 1/2" x 1/10" x skin deep with surrounding echymosis. This was situated in front of injury no. (ii) ; (iv) One incised wound 31/4" x 1/10" x skin deep on the outer side of the left hand. All the injuries were simple in nature except injury no. (ii) about which the opinion was reserved. Injury nos. (i) (ii) and (iv) were caused by sharp cutting weapons may be by Pharsa and no. (ii) ; (iv) One incised wound 31/4" x 1/10" x skin deep on the outer side of the left hand. All the injuries were simple in nature except injury no. (ii) about which the opinion was reserved. Injury nos. (i) (ii) and (iv) were caused by sharp cutting weapons may be by Pharsa and no. (iii) by hard and blunt substance may be by lathi and the age of the injuries was about 24 hours. 7. It may be relevant to mention here that the trial court recorded the order of acquittal against Chanarik Yadav solely on the ground that he found Chanarik Yadav solely on the ground that he found Chanarik Yadav crippled of both hands and incapable of holding a lathi and so the learned sessions Judge was very much in doubt regarding the participation of this accused in the aforesaid occurrence. 8. In appeal before me, the Senior Counsel for the appellants has at first contended that the prosecution failed to prove the genesis of the occurrence. It has been urged that there are too much of contradictions in the statements of the witnesses for the prosecution with regard to the time when the Pushta or the Aar was cut and the submission in that probably nobody saw the cutting of Pushta and Aar by the accused. The informant p. W.6 Ram Naresh Yadav in his Fard Beyan had stated that the incidence of cutting of Pushta took place at about 5 p m. and so is his statement before the Sessions Court whereas according to P. W.1 Permeshwar Yadav and P. W.3 Thakuri Yadav this incidence of cutting took place in the morning and some of the witnesses, namely, P. W.4 Sahdeo Yadav stated that this happened at mid day. 9. The counsel for the apellants, Shri Verma, has next argued that the prosecution has not been able to prove or either locate the exact place of occurrence and also the manner of occurrence, as alleged, is doubtful, according to the informant, Ram Das Yadav was assualted in between the field of P. W.1 Parmeshwar Yadav and that of accused Chanarik Yadav (since acquitted) but P. W.1 has stated that after receivivg blows, deceased Ram Das had fallen on the stock of the straws kept in the Khalihan of Chanarik. It has been further urged that P. W.2 Ram Pati Yadav put the place of assault elsevvere as according to him Ram Das Yadav was assaulted under the Serish and pipal tree, that is, about 2 Bans away west of the field of Parmeshwar. In this context the learned counsel has also referred to evidence of P. W.5 as it has been shown that according to him the tree is near about to Bans west of the field of Chanarik. Coming to the question of manner of occurrence, the learned counsel has again referred to the injuries sustained by these appellants, as pointed out above, and has urged that the prosecution has not given any explanation whatsoever regarding the injuries on accused-appellants. It has been submitted that since the accused appellants received injuries in the same occurrence as it would appear from Ext. A and also from the evidence of P. W.1, the case of the prosecution should be rejected, it was in this context that the learned counsel pointed out regarding some lacuna in the prosecution case for the non-examination of the Investigating Officer. 10. For the sake of convenience I would first like to take up the points raised regarding the place of occurrence and also to find out where the incidence of assault took place in the manner as alleged by the prosecution or the prosecution has suppressd some material facts and the correct picture is not given in the court. In other words, I propose to examine whether the prosecution has any obligation to explain the injuries found on some of the appellants and whether in absence of any such explanation the entire case of the prosecution fails. 11. Too much stress has been given on the statement of P. W.5 Somar yadav made in the court of Sessions Judge and as well as to the committing magistrate. It has been stated that P. W.5 said in the Sessions Court that ram Das Yadav after getting blows fell down in the Khalihan of accused Chanarik Yadav whereas before the committing Magistrate who has said that Ram Das Yadav was assaulted under the serish and pipal tree and had fell down there; the tree, as, stated by this witness, was at about 10 bans west of the field of Chanarik. P. W.1 has also stated that ram Das had fallen in the Khalihan of Chanarik. P. W.1 has also stated that ram Das had fallen in the Khalihan of Chanarik. The question arises to find out if there is any such variance in the statements of the witnesses or any such contradiction so as to hold that the occurrence took place in some other manner and at some other place. Khalihans of both P. W.1 Parmeshwar and of Chanarik are in the chhour adjacent to each other. Both the counsel for the appellants and for the State Shri Verma and Shri Farooq ahmad Khan have pointed out that the village path in the village is known as chhour. The two Khalihans are localised in the chhour. The Khalihan of Chanarik is in the east of Parmeshwar hardly at a distance of 2 bans away and Devi Asthan is about 5 to 6 bans east of Chanariks Khalihan (as per evidence of PWs 2 and 3) and these two witnesses PWs.2 and 3 have stated that the Serish tree would be about 2 Bans west of khalihan of Ramesahwar. It may be relevant to mention here that none of the witnesses have given the area of the Khalihan and that how far it extends in the chhour. The case of the prosecution is that deceased Ram das who was coming from further west of the tree and as it appears from the prosecution version that he was coming all" alone, and the accused taking advantage of the situation, looking at him fell upon him and began assaulting. From the events as narrated by the witnesses, it can safely be concluded that the victim did not remain static. It appear that he was assaulted somewhere near the tree. He attempted to move on but he fell down in the Khalihan in the chhour. According to P. W.2, the incident of assault happened near the Serish tree. P. W.3 has also given the similar statement and stated that Ram Das was assaulted west of the field of Chanarik and in the east of the field of Parmeshwar. P. W.4 and 6 are two another injured witnesses who are very specific on this point and stated that they were assaulted in the chhour. Thus, on analysis of the evidence of all the eye-witnesses, 1 do not feel prone to hold that the prosecution has failed to point out the exact location of occurrence. P. W.4 and 6 are two another injured witnesses who are very specific on this point and stated that they were assaulted in the chhour. Thus, on analysis of the evidence of all the eye-witnesses, 1 do not feel prone to hold that the prosecution has failed to point out the exact location of occurrence. The two Investigating Officers Ganauri Jha and Ram Khelawan Prasad both conducted the major part of the investigation could not be available for evidence and were not examined. But another Police Officer Ram Nandan prasad, who was the then Officer-in-charge of Kutumba Police Station, has been examined as P. W.7 and there is yet another witness P. W.8 through whom some portions of the two case-diaries i. e. of this case as well as of the counter-case have been proved and admitted in evidence. Exts.2 and 3 series are the portions of the case diary of this case instituted on the statement of P W.6, Ram Naresh Yadav, ext. B is the case diary of the counter-case instituted on the statement of nanhu and it has been placed in evidence on behalf of the defence. The defence has further placed in evidence, the F. I. R. of the the counter case marked Ext, A and the F. l. R. of this case marked Ext.1. But, however, sri K. P. Varma, adrocate for the appellants, has argued that the objective findings noted in the diaries by the other police officers cannot be a reliable evidence in absence of the examination of those who inspected the place of occurrence. The learned advocate has, however, admitted that such portion of the diaries contained the statements of those witnesses whose attention to that part of their statements made before the police was drawn may be looked into as relevant evidence to find out the contradiction and to see on which fact the witnesses have defaulted in their statements. However, it could not be argued nor do I find any prejudice caused to the defence due to the non-examination of the Investigating Officers. I therefore, confine myself to the statements of the witnesses made at the trial stage to see if the prosecution has been able to prove what was the place of occurrence. However, it could not be argued nor do I find any prejudice caused to the defence due to the non-examination of the Investigating Officers. I therefore, confine myself to the statements of the witnesses made at the trial stage to see if the prosecution has been able to prove what was the place of occurrence. Some of the witnesses, as referred to above, have given the distance of the khalihan and the trees by guess and not by actual measurement and I hastened to say that there does not appear any such discrepancy in the statements and it cannot be said that the prosecution has failed to prove his case. True it is that one of the witnesses i. e. P. W.5, has stated that serish tree where Ram Das was assaulted was about 10 Bans west of khalihan. In my opinion, this does not materially bring any charge in the prosecution version as giving in the F. I. R. and as stated by this witness regarding the place of occurrence. Totality of the entire evidence has to be considered and only then the court may arrive at a conclusion. The informant P. W.6 has given a graphic picture of the place of occurrence He has stated that when his father reached near the Khalihan of accused Chanarik in the chhour, where there was a Serish tree, all the accused accosted him and started assaulting with lathies. This witness has further explained this fact in court that two Khalibans lie in an open space in between the deviasthan and the Serish tree and it is this space to which the villagers called as chhour. According to P. Ws.1 and 2, the two Khalihans were adjacent to each other, P. W.2 Rampati Yadav has said that the Serish tree would be about 2 to 3 Bans away from the Khalihans 1 have already pointed out that two injured witnesses Sahdeo Yadav (P W.4) and Ram Naresh yadav (P W.6) who also received injury in the chhour when they rushed to save deceased Ram Das. It is needless to repeat here that the persons assaulting were not static, they must have staggered and stumbled a few steps here and there and Ram Das on getting blows finally dropped down. Thus, I find that there is any such contradiction with regard to the place of occurrence. 12. It is needless to repeat here that the persons assaulting were not static, they must have staggered and stumbled a few steps here and there and Ram Das on getting blows finally dropped down. Thus, I find that there is any such contradiction with regard to the place of occurrence. 12. There is another aspect of the case which may also be borne in mind. At one stage if was argued by Mr. K. P. Varma that the informants party was aggressors and the marpit took place in the Khalihan of Chanarik yadav, but in the same breath it has further been contended that marpit happened at a quite different place over plot no.8 in khata no.54. This we get from Ext. A, the F. l. R lodged by the appellant Nanhu Yadav. The two versions cannot be reconciled and the plea of the defence has to be rejected. While doing so, I am conscious of the position that an accused in a criminal case is not required to prove its defence plea affirmatively and no adverse inference is to be drawn on his failure. What an accused is required to do is that he may put forth a theory only to probabilise the plea taken in defence. Thus, the prosecution, in all circumstances, has to prove its case and I now, therefore, proceed to examine whether any duty was cast on the prosecution in the present case to explain the injury found on the persons of appellant and accused chanarik (already acquitted ). Victim Ram Das and other injured witnesses were removed to Aurangabad Hospital for immediate medical aid. They were examined by the doctor on the same night at about 10.30. p. m. Police arrived and recorded Fard Beyan of Ram Naresh Yadav at 11 p m. A counter f. l. R. (Ext. A), referred to above, was lodged next day. It was recorded at 4-30 p. m. on 15-11-71. There is no explanation of this long delay, naturally, one pauses here to think whether the counter case is an afterthought simply to create a defence. I, of course, feel that mere delay of a few hours in lodging information would not matter. Each and every case has to be judged with the attending circumstances and particularly if we find some explanation of delay. I, of course, feel that mere delay of a few hours in lodging information would not matter. Each and every case has to be judged with the attending circumstances and particularly if we find some explanation of delay. So far as the present case is concerned, the accused presented themselves for medical aid and check-up on the day following and not in the same evening or in the night when they claim to have been assautled. Had the injury been grievous caused in the same occurrence, they would not have moved out of site and must have rushed to hospital or to any doctor for immediate treatment. This was not done, we get from the evidence of the doctor R. N. Saran (D. W.1) that he examined the appellants and injured accused Chanarik Yadav some time after 8.15 in the morning on 15-11-71 i. e. the next day of the occurrence. According to doctor the injuries were all simple in nature and I am in doubt, if any obligations is cast on the prosecution to explain such simple injury which may go unnoticed even if accidently received by the accused persons in the same occurrence, but the present case is far away from it. I do not find any substance in the argument of the learned advocate for the appellants K. P. Varma that these appellants received injury in same occurrence and that the prosecution has made any attempt to suppress it. Doctor has said that if victim undertakes the risk of such injury can be manufactured. Be that as it may, according to the doctor the injuries on the accused were within one to two hours from the time of his examination. He examined the accused as pointed out above sometime after 8.50 in the morning on the following day and this fact coupled with all the circumstances as discussed above is sufficient to dislodge the defence arguments and it is hard for me to hold that the accused sustained injury in the same occurrence. The trial court has also rejected the defence theory and in my opinion, rightly. 13. Lastly, applicants counsel has attached the genesis of the occurrence. The incident of mar pit arose sometime in the evening on 14-11-71 over cutting of Pushta and Aar attached to the house of the informant. The trial court has also rejected the defence theory and in my opinion, rightly. 13. Lastly, applicants counsel has attached the genesis of the occurrence. The incident of mar pit arose sometime in the evening on 14-11-71 over cutting of Pushta and Aar attached to the house of the informant. I have already said that there is some inconsistency with regard to the time when the Pusta was cut. In other words cutting of Pusta was the motive for the incident. The informant has stated that this cutting incident took place at about 3 p. m. and so is the statement of P. W.4 Sahdeo Yadav, who is also an eye-witness of the incident, that this incident happened some time at mid-day. P. W.2 Rampati Yadav has also admitted that he heard that there was a quarrel between the parties overcutting of Pusta and Aar and this quarrel had happened a few hours before the incident of actual marpit. Some contradictions have been pointed out by the counsel for the applicants on this score through the evidence of P. W.1 Parmashwar Yadav and p. W.3 Thakuri Yadav. It has been pointed out that according to them incident of cutting of Pusta happened in the morning. In other words, it has been urged that the false motive has been attributed which the prosecution has failed to prove. I am not inclined to accept the submission. It appears to me that P. Ws.1 and 3 are not the eye-witnesses of the cutting of pushta. They have not said which of the accused actually cut the Pushta and how. They only said that there was some quarrelling between the accused chanari Yadav and Ram Das Yadav over cutting of Pustha, which had happened in the morning I, therefore, in fact, could not find any contradiction in the statement of the witnesses and to hold that the prosecution failed to prove the genesis of the occurrence or has introduced any false motive to support a false charge. The argument fails also on the ground. When I look to the evidence of PW 7 Ramanand Prasad who was then officer-in-charge of Kutumba and has conducted part-investigation of the case. He had taken over charge of this case on 15-11-71. The argument fails also on the ground. When I look to the evidence of PW 7 Ramanand Prasad who was then officer-in-charge of Kutumba and has conducted part-investigation of the case. He had taken over charge of this case on 15-11-71. He had visited the place of occurrence and has noted in the diary regarding the cutting of pushta which he found and he has stated in court that he found that Pushta was cut in an area of 6 yards long and one span wide on the north of the house of the informant Ram Naresh Yadav. This objective finding of p. W.7 rather affirmly proves that there was some cutting of Pushta over which the parties quarrelled and annoyance continued and, therefore, taking advantage of the stand Ram Das was coming after attending the call of nature was assaulted by the accused persons as stated by the witnesses examined on behalf of prosecution. 14. To conclude, the court is left with evidence of the prosecution witnesses to find out how far the prosecution has succeeded in bringing home the charge against the accused appellants. Apart from what have been discussed above, to my mind, the statement of all the eye-witnesses named in the F. I. R. are quite consistent. P. W.4 is an injured-witness, P. W.6 who is informant is also an injured witness, P. Ws.4, 5 and 6 are, no doubt, related but I have already pointed out above that both the parties stand in relation to each other. P. Ws.2 and 3 are villagers and are said to be independent witnesses of the occurrence and that their evidence is quite consistent. Therefore, there is no reason to discard the evidence of those witnesses who are related to each other in the present case. I, therefore, hold that the finding of the guilt against these appellants by the trial court is quite correct and 1 do not find any merit in this appeal. However, I refrain from giving any finding on the point of acquittal of one of the accused Chanarik Yadav and 1 may say that the State has not preferred any appeal against the order of acquittal recorded by the trial court.16. In the result, the appeal fails and is dismissed. Appeal dismissed.