Judgment 1. State has filed this: appeal against the acquittal of respondents on 17-12-1974 by Sri M. P. S. Tomar, learned II Additional Sessions Judge, Farrukhabad in Sessions Trial no. A 187 of 1974. Respondents were acquitted of the charges under sections 302/34 and 342/34 of the Indian Penal Code. 2. Respondents Harnath Singh and Shivnath Singh are own brothers, sons of Chuttu Singh Thakur, Man Phul is Jatav and Bansi is Kahar. All the respondents are associates belonging to one party; all the respondents are residents of village Dhirajpur, hamlet of Sawasi, police-station Kamalganj, district Farrukhabad. 3. Victim Rati Ram was the husband of informant Smt. Chameli Devi PW 1, who was a co-villager of respondents. 4. Potato field of respondents Harnath Singh and Shivnath Singh lay towards south-west of their sitting room near the pond as shown in the site plan Ext. Ka. 14 by investigator Sri V. N. Sharma, PW 9, Harnath Singh and Shivnath Singh suspected the removal of some potatoes from this field by deceased prior to occurrence. It was on 23rd of January, 1973 at about 8 p. m. that all the respondents reached the door of deceased who was taking his food which was being served by his wife, Smt. Chameli Devi, aged about 25 years; her niece and sister-in-law were also present inside the house; no other male member was present. It was on 23rd of January, 1973 at about 8 p. m. that all the respondents reached the door of deceased who was taking his food which was being served by his wife, Smt. Chameli Devi, aged about 25 years; her niece and sister-in-law were also present inside the house; no other male member was present. Harnath Singh directed deceased Rati Ram to come out immediately as be had stolen their potatoes ; when Rati Ram emerged out of his house and denied the theft, an altercation took place and he was forcibly taken to the field aforesaid ; Smt. Chameli and her sister-in-law and niece also emerged out; her sister-in-law had a lantern ; they found all the respondents armed with lathis in a violent mood ; the victim was carried to the potato field and had hardly entered the same that all the respondents belaboured him with lathies despite weeping and wailing of Smt. Chameli and her sister-in-law and niece; Itwari an oil seller, PW 2, and Gobardhan, barbar of the village also reached there flashing torches while the beating was in progress; they also requested respondents to refrain, in vain ; however, the respondents were adamant and parried Rati Ram to sitting room of Shivnath Singh and Harnath Singh, with the avowal to hand him over to police in the next morning ; Rati Ram was confined in the sitting room ; Smt. Chameli and others entreated in Vain to secure the release of Rati Ram; eventually they had to return. It was early on the next morning that Smt. Chameli approached Pradhan Bhajan Lal and Bachchan Lal, etc. to intervene. When they reached near the sitting room, Harnath Singh and Shiv Nath Singh locked the sitting room and went away towards Sawasi alleging that it was not proper for them to stay any longer there. Smt. Chameli, Bhajan Lal and Bacbchan Lal peeped through the window of the sitting room and found Rati Ram lying dead on straw. 5. Smt. Chameli dictated report Ext. Ka. 4 about the occurrence to Hari Kishan, Sarpanch, PW 8, which she made over at police station Kamalganj in the same afternoon at 2.50 p. m, distance of police station from the scene of occurrence was five miles. On the basis of written report Ext. Ka. 4, FIR Ext. 5. Smt. Chameli dictated report Ext. Ka. 4 about the occurrence to Hari Kishan, Sarpanch, PW 8, which she made over at police station Kamalganj in the same afternoon at 2.50 p. m, distance of police station from the scene of occurrence was five miles. On the basis of written report Ext. Ka. 4, FIR Ext. Ka-1 was drawn by desk constable Mizaji Lal, PW 4, who registered the case in general diary vide Ext. Ka-2. The investigation was entrusted to Sri V. N. Sharma, PW 9, who was not present at the police station when FIR was drawn by Mizaji Lal, PW 4. Mizaji Lal sent the necessary papers to Investigator through constable Prem Singh at 2.55 p. m., Investigator started from village Nagla Jodh and reached the scene of occurrence in the same afternoon at 4.30 p. m, he found the sitting room of Harnath Singh and Shivnath Singh locked from outside. In presence of Panches he got the lock Ext. 1 broken open by Ram Kumar Barbar and sealed it up vide memo Ext, Ka. 5, dead body of Rati Ram was found lying on the bed of straw in an injured state. Diagram, despatch note and Inquest memo, Ext. Ka. 10, Ext. Ka. 11 and Ext. Ka. 6 respectively were drawn by Investigator and the dead body in sealed up condition was sent for autopsy through constables Rameshwar, PW 5 and Shivnath Singh. Autopsy was held on 25-1-1973 at 2.30 p. m. by Dr. G. D. Ahuja, PW 6, Medical Officer Incharge, Civil hospital, Farrukhabad. 6. He found deceased aged about 35 years and approximate time of death as about 1 1/2 days prior to postmortem examination. Rigor mortis was present all over the body. Following ante mortem injuries were detected:- On Internal examination doctor found clotted blood present in the scale on right side and the right parietal bone was found fractured at its lower part and there was an inch Iong linear fracture there, and the membranes of the brain were congested and there was clotted blood present on the surface of the brain on right side in an area 1 1/2 " x 1 ". 7. 7. Right side of the heart contained blood while the left side was empty stomach was empty While both small and large intestines were half full and the rectum was full, the bladder was empty vide postmortem report Ext. Ka. 3 proved by the doctor who opined that death was due to coma as a result of ante mortem head injury no. 1. Death could have been caused on the night in between 23rd and 24th January, 1973. 8. Doctor further opined that last meal could have been taken by the deceased about four or five hours prior to death. In case full meal had not been eaten last ingeation might have been 2 1/2 or three hours prior to death. DOCTOR was not definite about the death being instantaneous on sustaining injuries; duration of death could have varied by five or six hours on either side ; no marks of dragging were found by the doctor on the body ; aforesaid injuries could be caused by lathi blows. Investigator seized blood stained straw and bed Exts. 2 to 4 from the sitting room vide memo Ext. Ka. '' ; he also reached the potato field of Harnath Singh and Shivnanth Singh and saized blood-stained and unstained earth, Exts. 5 and Ext. 6 respectively in presence of witnesses vide memo Ext Ka. 8. Site was inspected and site plan Ext. Ka. 14 was drawn which contained index also and was deposed to be correct. Residential house of Shivnath Singh and Harnath Singh and house of victim Rati Ram were also shown in the said site plan. 9. Witnesses were interrogated ; respondents made themselves scarce vide search memoes Exts. Ka. 11 to Ka. 17 prepared by Investigator ; Km. Reshma presented a lantern which was found in proper working condition and was entrusted to her in presence of witnesses vide Ext. Ka. 9 ; torches of Itwari and Goverdhan were also examined and found in working order and given in their custody vide memo Ext. Ka. 19. All the respondents except Bansi surrendered in court on 29-1-1973, Baosi surrendered in court on 31-1-1973. On completion of investigation Station Officer Sri Mahavir Singh submitted a charge sheet Ext. Ka. 18 against the respondents on 4-3-1973. 10. In support of their case nine witnesses were examined by prosecution. Ka. 19. All the respondents except Bansi surrendered in court on 29-1-1973, Baosi surrendered in court on 31-1-1973. On completion of investigation Station Officer Sri Mahavir Singh submitted a charge sheet Ext. Ka. 18 against the respondents on 4-3-1973. 10. In support of their case nine witnesses were examined by prosecution. All the respondents denied their association with each other ; they also denied their participation in the occurrence; they pleaded alibi. They alleged their implication to ill will with Bhajan Lal and Bachchan Lal and party faction. 11. No witness was examined in defence ; however, Ext. Kha. 2 filed in defence is extract of register showing conviction and sentence of Rati Ram deceased on 26-2-1966 in a theft case ; copy of report lodged under section 380, IPC on 20-8-1967 at 6 p. m. against Ratiram and Nathu was also filed in defence ; copy of Khasra of plot no. 1196 area 1.05 acres recorded in the name of Chhuttu Singh father of Shivnath Singh and Harnath Singh was filed to show potato crop in a portion of this plot in the year 1380 Fasli. 12. Learned trial Judge found that the direct evidence adduced by the prosecution was not cogent; he further found that although the dead body of victim was recovered from the sitting room of Harnath Singh and Shiv nath Singh and blood stained articles were also seized from there and respondents Harnath Singh and Shivnath Singh had no explanation to offer for these recoveries yet this evidence was insufficient to record a conviction specially when the sitting room could have belonged to either of the two brothers. It could have been likely that any of the respondents could have inflicted injuries on Ratiram and all of them might not have been guilty. In this view of the matter benefit of doubt was extended to each of the respondents who were acquitted as given above. Aggrieved by this order State has preferred this appeal. 13. We have heard Sri Jitendra Kumar, learned counsel for the State and Sri G. P. Dixit, learned advocate for the respondents and carefully perused the record. 14. In this view of the matter benefit of doubt was extended to each of the respondents who were acquitted as given above. Aggrieved by this order State has preferred this appeal. 13. We have heard Sri Jitendra Kumar, learned counsel for the State and Sri G. P. Dixit, learned advocate for the respondents and carefully perused the record. 14. As regards the width and scope of the powers of the appellate court in an appeal against the order of acquittal it has been settled by the decision of Supreme Court in Sanwant Singh v. State of Rajasthan, 1961 AWR 382 which posited :- "That the appellate court has full powers to review the evidence upon which the order of acquittal is founded and that the different phrases used in some of the judgments of this court like "substantial and compelling reasons", "good and sufficiently cogent reasons", and "strong reasons", were not intended to curtail the undoubted power of the appellate court to review the entire evidence, and to come to its own conclusion in an appeal against acquittal. It was however, emphasised that in exercising this power the appellate court, while, dealing with an order of acquittal, should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but it must express its reasons in its judgment which led it to hold that the acquittal is not justified." In pursuance of the decision, Supreme Court in Ramabhupala Reddy v. State of Andhra Pradesh, AIR 1971 SC 460 held that to the tests laid down in Sanwant Singh's case may be added another that the appellate Court must bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innosence is not weakened by the order of acquittal. Therefore, "if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the trial court." 15. A similar view was reiterated in Ganesh Bhawan Patel v. State of Maharashtra, AIR 1979 SC 138. 16. It is in light of the aforesaid pronouncement that we proceed to scrutinise the findings recorded by learned trial Judge. A similar view was reiterated in Ganesh Bhawan Patel v. State of Maharashtra, AIR 1979 SC 138. 16. It is in light of the aforesaid pronouncement that we proceed to scrutinise the findings recorded by learned trial Judge. Smt. Chameli testified that she knew all the aforesaid respondents at time of occurrence. This fact was admitted by all the respondents in reply to question no. 2. She further testified about the connection amongst the respondents. It was conceded by the respondents that Harnath Singh and Shivnath Singh were own brothers although it was denied that Manphool Singh and Bansi were their associates. 17. She further testified about the topography. SHE deposed that her husband's elder brother was Out on the night as he went in search of a bridegroom for Km. Reshma. However, her sister-in-law and Km. Reshma, were also present while she was serving feed to her husband. 18. ALL the respondents arrived at their door and called out her husband ; her husband had hardly started taking his meals. He had eaten two or three morsals of food. As respondents were adament as her husband had to go out and denied the accusation of theft of potatoes from the field of Harnath Singh and Shivnath Singh, She and her sister-in-law and Km. Reshma emerged out. Her sister-in-law was holding a lantern which was burning. In the light of lantern they saw the respondents armed with lathies ; her husband denied to have dug potatoes from their field. However, the respondents repeated the accusation and directed her husband to accompany them to the spot from where potatoes had been dug. 19. No cross examination was directed to show the falsity of this witness on this point. She had absolutely no ill will with any of these respondents. 20. Learned trial Judge in his judgment gave no reasons to discard her testimony about this incident on her door which seems quite natural and consistent with circumstances of the case. Smt. Chameli Devi further testified that her husband was forced to proceed to the field from which the potatoes were alleged to have been dug out. On reaching the field all the four respondents dealt lathi blows on her husband ; she and her sister-in-law and Km. Reshma indulged in weeping and wailing, ltwari and Govardhan witnesses also reached there flashing torches. On reaching the field all the four respondents dealt lathi blows on her husband ; she and her sister-in-law and Km. Reshma indulged in weeping and wailing, ltwari and Govardhan witnesses also reached there flashing torches. They also requested the respondents to desist from beating ; she cried and entreated that her husband should be spared but the respondents did not leave him and told that he would be carried to police station and thereafter they carried him to their sitting room. She further testified that they also wept bitterly at the sitting room but the respondents told that Rati Ram would be carried to police station on the next morning ; Bachchan Lal and Bhajan Lal, Pradhan had also reached there and requested for the release of her husband in vain. She alongwith her sister-in-law and the niece returned to her house weeping and wailing, ft was on the next morning that she along with Bhajan Lal and Bachchan Lal again went to the sitting room of Shivnath Singh and Harnath Singh. Shivnath Singh and Harnath Singh locked the sitting room from outside and at their sight remarked that it was not proper to stay further and they made way towards Sawasi. After departure of Harnath Singh and Shivnath Singh, they peeped through the window and found her husband lying dead. During ail this time her husband had not returned to house. 21. She further testified that she covered a distance of one mile and reached village Bagla where she dictated a written report Ext. Ka. 4 to Harkishan which she made over at police station. SHE vouched about the accuracy of that report. 22. Her testimony was rejected by learned trial Judge. It was observed that Investigator Sri V. N. Sharma, PW 9, did not make a search of the house of Rati Ram to find out whether there were any potatoes stored in the house of Rati Ram deceased ; investigator did not take care to find out whether any plot of land belonging to any of the accused had arty marks, signs or indications of any nature disclosing that potatoes were actually dug out from the plot from some significant area. It was not mentioned in the site plan nor noted in the index that potatoes had been taken out from any portion of that plot. It was not mentioned in the site plan nor noted in the index that potatoes had been taken out from any portion of that plot. Another reason for discarding the testimony of the lady was that Smt. Chameli testified that her husband had left the house after taking two or three morsals of food ; post mortem report Ext. Ka. 3 disclosed that small and large Intestines were half full and the rectum was also (full which would indicate that he had taken full food. It was further pointed out that in her report Smt. Chameli had not at all disclosed that Pradhan Bhajaa LaJ and Bachchan Lal had reached the sitting room after the alleged occurrence, although she testified to that effect in her examination-in-chief. 23. In her earlier statement the lady stated that she had thumb marked the report written by Harkishan immediately afterwards but thereafter she added that she did so at the police-station and then she again stated that she had put her thumb mark before Harkishan. 24. It was further pointed out that in her written report Smt. Chameli did not mention that she had gone to Harnath Singh and Shivnath Singh living in another village at a distance of about one mile for getting the report scribed and then she bad gone to another village one mile away to fetch her brother Gopinath before lodging the report, although these facts were of material importance, essentially to explain away apparently the long delay in lodging the FIR. All these facts appear to have been fabricated to cover the gap so as to explain the long delay. IT was improbable that Govardhan and ITwari could not have made hue and cry and Bhajan Lal could have informed notice during the night and the report could have been lodged at worst early in that morning. It was further pointed out that the co-villagers could not have permitted the wrongful confinement of Rati Ram in the sittting room ; houses of Bachchan Lal and Bhajan Lal were not far away. In cross-examination Smt. Chameli further testified that she went up to the siating room of accused and at that time in paragraph nos. 24 and 25 of her statement, she did not testify that she went to the plot concerned at night. In cross-examination Smt. Chameli further testified that she went up to the siating room of accused and at that time in paragraph nos. 24 and 25 of her statement, she did not testify that she went to the plot concerned at night. Smt. Chameli could not describe details of police station building in Kamalganj and could not even give description of the constable who scribed the formal FIR. 25. It was further pointed out that the explanation offered by the lady to explain the delay in lodging the FIR and about the time of arrival of Bhajaa Lal and Bachchan Lal at the sitting room was not cogent and consistent with the time given by Gopinath, PW 3, who testified that Smt. Chameli arrived at his residence at about 9 or 10 a. m. His house was about 1 1/2 mile from village Dhirajpur. He did not meet Bhajan Lal at police station. 26. IT appears that in hen cross-examination this illiterate rustic went on replying the questions put to her. She never stated that she had not gone to the scene of occurrence and had not seen beating inflicted on her husband at the field. In para 49 of her statement she described the boundaries of the field where her husband bad been taken by the respondents on that evening. She denied the suggestion that the report was not recorded at her dictation or was the result of any consultation etc. She could not give the direction of the gate of the police station ; however, she added that she did go to police station. She further testified that she did not look to and fro at police station and so was not observant about the number of doors in the building of police station ; the head constable was writing in the courtyard of the police station. However, she did not observe the details of the building of police station. We have carefully perused the statement of this simple illiterate rustic widow. We find that she had absolutely no ill will with any respondent; she had consistently given the number of respondents and the role played by them during the occurrence; her statement is fully corroborated by statement of Itwari, PW 2 ; the seizure of blood stained earth Ext. 5 from the field of the respondents Shivnath Singh and Harnath Singh and blood-stained material etc. Ex. 5 from the field of the respondents Shivnath Singh and Harnath Singh and blood-stained material etc. Ex. 2 to 4 from the sitting room of respondents Harnath Singh and Shivnath Singh and the dead body which was found locked up in the sitting room. 27. IT is further significant to note that it is the case of a helpless widow, aged about 25 years belonging to a lower strata of society as compared to Shivnath Singh and Harnath Singh who forcibly carried her husband after accusation of theft of potatoes simply because they suspected him to be the thief. There was no male member at the house of deceased and she remained helpless spectator to the tragic killing of her husband ; she could not have been quick in lodging report as no male member was present at her house and respondents Shivnath Singh and Harnath Singh told that her husband would be carried to the police station on l;he next morning and she might have believed them. Respondents filed documents discussed above. 28. A perusal of those documents shows that they could have suspected Rati Ram as thief of the potatoes sown by them in their field. It is correct that location of plot no. 1196 was not done but the site plan shows that a portion of the potato field of Shivnath Singh and Harnath Singh did not contain potatoes. If Investigator did not conduct a search for the potatoes or in absence of cross examination on this point, if he did not mention in the site plan portion of the field from which potatoes appeared to have been dug out such negligence, if any, could not recoil on the head of Smt. Chameli. Being a young widow she could not have observed the building of police station with meticulous accuracy nor was she in a position to describe the direction of the building which she presumably might have visited for the first time while in extreme distress on account of her sad bereavement. She could have kept on sitting with face downwards while FIR was being drawn. Presence of Gopinath (PW 3) only has been noted in the GD entry Ext. Ka. 2 as having accompanied the informant when she reached the police- station. Her statement on this point has been fully corroborated by Gopinath PW 3, and Mizaji Lal, PW 4, and GD entry Ext. Ka. Presence of Gopinath (PW 3) only has been noted in the GD entry Ext. Ka. 2 as having accompanied the informant when she reached the police- station. Her statement on this point has been fully corroborated by Gopinath PW 3, and Mizaji Lal, PW 4, and GD entry Ext. Ka. 2 and Harkishan, PW 8, scribe of written report Ext. Ka. 4. Ext. Ka 4 could not have contained all the details of the occurrence nor the said document was the result of confabulations with Bhajan Lal or Bachchan Lal who had nothing to do in the matter ; Smt. Chameli had little idea of time and under such circumstances of the case she offered a reasonable explanation for the delay, if any, in lodging the report. Dr. G. D. Ahuja, PW 6, did not make a categorical statement about the quantity of last meal eaten by the deceased nor exact time of death of victim was given by any witness. So the aforesaid stomach contents of victim cannot negate the statement of informant that her husband had been taken away by the respondents while he had not eaten his full food. Her statement shall be read as a whole and not piece meal. If learned cross-examiner went on putting vague questions to this illiterate lady it could not destory her sworn testimony. It is well known that during cross- examination when led away by cross-examiner even most intelligent and truthful witnesses may falter and may seem utterly stupid and unreliable. 29. In Shivaji Saheb Rao Bobode v. State of Maharashtra AIR 1973 SC 2623, it was pointed out:- "Where the witnesses to a criminal case are rustics, their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familier in courts based on unreal assumption about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the avidence of the various witnesses the court has to inform itself that variances on the fringes discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony, provided there is the impression of truth and conformity to probability in the substantial fabric of testimony delivered." 30. When scanning the avidence of the various witnesses the court has to inform itself that variances on the fringes discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony, provided there is the impression of truth and conformity to probability in the substantial fabric of testimony delivered." 30. While appreciating the testimony of this lady we find that her testimony is simple and straight-forward it is consistent with oral and medical evidence and circumstances of the case. lt finds a material support from collateral circumstances also. So the testimony of PW 1 was trustworthy and had been wrongly discarded by learned trial Judge on flimsy grounds. Itwari, PW 2, is the next witness who has corroborated the statement of Smt. Chameli. He is an oil seller. He also know all the respondents, his co-villagers ; he further testified that on that evening he was attracted by hue and cry of Rati Ram and the ladies emanating from the potato field of Shivnath Singh and Harnath Singh. He found all the four respondents dealing lathi blows on Rati Ram. He was flashing a torch while sister-in-law of Smt. Chameli carried a lantern. All of them requested respondents not to belabour Ratiram but they were not amenable to reason and told that they would carry him to their house. He further claiming to have seen Rati Karn being carried by the respondents in the sitting room of Shivnath Singh and Harnath Singh where he was confined. 31. Learned trial Judge has discarded his testimony on the ground that he did not mention about torch light with Govardhan although the prosecution case was that Govardhan also had flashed his torch. This is hardly any reason to discard the testimony of the witness who alleged that he flashed his own torch and there was light of lantern also to facilitate recognition of assailants. 32. The next ground for discarding his statement was that the scene of occurrence could not have been visible from his house as BESHRAM BELL (Wild shrubs) intervenend in between the place of occurrence and his house which was at a distance of about 250 paces away from the scene of occurrence. At any rate it was most likely that he could have reached only after the occurrence was over. We do not find this reasoning cogent. At any rate it was most likely that he could have reached only after the occurrence was over. We do not find this reasoning cogent. The wild shrubs could not have obstructed the alarm which was being constantly raised not only by the victim but also by his wife, sister-in-law and niece and so there was no question of his not heating alarm. At that dark chilly late hour of evening this hue and cry, at the: out-skirt of that lonely quiet village could have been easily audible even from a longer distance than 250 paces. 33. Learned trial Judge further referred to contradiction elicited in his cross-examination. It was pointed out that before investigator the witness alleged that he heard the hue and cry while he was at the pond in connection with evacuation while in court he alleged that he was feeding his cattle at that time. 34. It is significant to note that this witness is also an illiterate rustic ; there is nothing in the said discrepancy touching the material point about his having seen the occurrence. He was nominated in the report and his presence was mentioned by Smt. Chameli also ; being a witness of locality he could have easily reached the scene of occurrence on hearing the hue and cry. He had no direct ill-will with the respondents ; the mere fact that he did not tell about the occurrence except to the Investigator as pointed out by learned trial Judge or the fact that the village was rent by party faction or that the witness testified that the beating lasted for an hour although victim sustained a few injuries was not sufficient to discard his testimony. When the occurrence attracted so many villagers none of whom could dare to secure the release of Rati Ram till arrival of Investigator there was hardly any occasion on the part of the witness to have described this incident an Open secret to his co-villagers, he could not have carried a watch so as to give exact duration of beating, he described this incident on 23-11-1974 after about one year and ten months of the occurrence and so might have forgotten about the exact time and place where he heard hue and cry for the first time. Such minor discrepancies on a point which is not material can not necessarily demolish his testimony. Such minor discrepancies on a point which is not material can not necessarily demolish his testimony. He had no direct ill-will with any respondent nor had any reason to espouse the cause of Ratiram who was no-longer alive. There is no hard and fast rule that evidence of a partisan witness cannot be acted upon without corroboration. If his presence at the scene of occurrence cannot be doubted and his evidence is consistent with surrounding circumstances and probabilities of the case and strikes the court as true it can be a good foundation for conviction: more so if some assurance for it is available from medical evidence. 35. In the instant case we find that testimony of Itwari, PW 2, is not lightly discardable; his presence on the spot appears quite reasonable and probable. The description of the occurrence ;as given by him is consistent with medical evidence and seizure of blood stained earth, etc. 36. THERE are statements of Gopinath, PW 3, Harkishan, PW 8, Vishwanath Sharma, PW 9 about the recovery of dead body and blood-stained straw, KATHI, from the sitting room of respondents. These articles were found stained with human blood of deceased vide report of Serologist Ext. K.a-21. Har Nath Singh and Shivnath Singh having locked the sitting room had absconded. In this connection learned trial Judge himself observed in para 23 of his judgment:- "Notwithstanding all these weaknesses it needs to be pointed out that the dead body was discovered lying in the Baithak of Harnath and Shivnath Singh. THERE is ample credible evidence in this regard, and there is no evidence to the contrary showing that the dead-body was moved from some place to that place before or after the arrival of the IO on the spot. The Panchayatnama proceedings are carried out in the presence of atleast five persons and other villagers also collected there. The Panchayatnama bears a recital about look. THERE is not much effort on the part of the accused persons to establish that the dead body was not recovered from the Baithak. No witness from the village has been produced to prove anything to the contrary. The Panchayatnama bears a recital about look. THERE is not much effort on the part of the accused persons to establish that the dead body was not recovered from the Baithak. No witness from the village has been produced to prove anything to the contrary. Hence notwithstanding the fact that Harkishan, Bhajan Lal, Bachchan Lal and Gopinath and' one Sant Ram who has not been produced, were chosen as Panches and despite other weaknesses pointed out earlier, I am inclined to believe that the dead-body was recovered from the Baithak and from nowhere else. THERE is prosecution evidence that blood was recovered from the plot of land belonging to Harnath Singh and Shivnath Singh. No doubt 1 he witnesses to the memo are Harkishan and Ram Prasad. It also has come in evidence on record that the IO did not find the accused persons in the village when he reached there." Learned trial Judge explained away this gravely incriminating circumstance by alleging that it could not be definitely said as to whether Harnath Singh and Shivnath Singh or both or single were on explanation for these recoveries. 37. We do not find any substance in this queer reasoning employed by learned trial Judge. It is in the statement, of Smt. Chameli that Harnath Singh and Shivnath Singh who were own brothel's lived in one house and it was their common sitting room which was not even denied by them. They had been seen running together by these witnesses after Iocking the sitting room on arrival of witnesses. They could not substantiate their alibi. Learned trial Judge himself observed that none else could have placed the dead body of the victim in this sitting room. So on the evidence on record we find testimony of PWs 1, 2 and evidence of recovery aforesaid reliable which goes to establish beyond a shadow of reasonable doubt that all the four respondents were authors of the injuries inflicted on victim on the night in between 23rd and 24th January, 1973. These injuries were fatal. 38. Learned advocate for the respondents while arguing the case on the point of sentence pointed out that the case did not transcend domain of Section 325, IPC, read with Section 34, IPC. In this connection reliance was placed upon Shri Kishan and others v. State of V. P. reported in AIR 1972 SC pa;ge 2056. These injuries were fatal. 38. Learned advocate for the respondents while arguing the case on the point of sentence pointed out that the case did not transcend domain of Section 325, IPC, read with Section 34, IPC. In this connection reliance was placed upon Shri Kishan and others v. State of V. P. reported in AIR 1972 SC pa;ge 2056. It appears that in that case there was absence of previous ill-will; occurrence took place on account of trifling scuffle incident between urchins. Four assailants dealt lathi blows on Saru and Sadaphal. The finding recorded was hat there was common intention to give a severe beating to Seru and Sadaphal. 39. In the instant case we find that victim was unarmed and he was carried away from his house and attacked in the field by four persons armed with lathies in furtherance of their common intention; injuries nos.1, 2 and 3 were aimed at the head of victim and clearly brought home a guilty knowledge if not guilty intention of homicide to the respondents. The well wishers of victim including his wife denied an opportunity of affording timely medical aid to save his life. Under these circumstances we find no reason as to why Section 304, Part-2, IPC is not attracted in this case against all respondents vide Afrahim Sheikh v. State of West Punjab, 1964 (2) CrLJ page 350. 40. As regards the sentence, such gargantuan display of tyranny deserves a heavy sentence but having regard to the fact that incident took place in January, 1973 and respondents were acquitted in December 1974, we find that a sentence of seven years Rigorous Imprisonment to each respondent under this count shall meet the ends of justice. All the ingredients of the offence under Section 342, IPC read with Section 34 of the Indian Penal Code have been fully made out against the respondents Harnath Singh and Shivnath Singh and each of them is sentenced to one year's R. I. under this count. 41. However, benefit of reasonable doubt is extended to Manphool and Bansi so far as the charge under Section 342, read with Section 34 IPC is concerned. 42. In the result appeal is partly allowed. Order of acquittal recorded by learned trial Judge dated 17-12-1974 in Sessions trial no. 41. However, benefit of reasonable doubt is extended to Manphool and Bansi so far as the charge under Section 342, read with Section 34 IPC is concerned. 42. In the result appeal is partly allowed. Order of acquittal recorded by learned trial Judge dated 17-12-1974 in Sessions trial no. A-187 of 1974 is set aside and all the respondents are convicted under Section 304, IPC Part-2 of IPC each of them is sentenced to seven years' R. I. under this count. Harnath Singh and Shivnath Singh are further convicted under Section 342, read with Section 34, IPC and each of them is sentenced to one years's R. I. Both the sentences of Harnath Singh and Shivnath Singh shall run concurrently. 43. Manphool and Bansi are acquitted of the charge under Section 342, IPC read with Section 34 IPC. 44. ALL the respondents must surrender forthwith to serve out the aforesaid sentences.