JUDGMENT 1. -Fifteen persons, namely, Foju, Nasib, Khan, Moju, Samela, Karaal Khan, Kale Khan, Jabra, Mangto, Rangila, Leela, Lukman, Mailo, Jomkhan, Rahman and Suleman were charged with having committed several offences, principal of which was under section 302, read with section 149, I.P.O. The case against these persons was tried by Additional Sessions Judge No. 1. Alwar. The other charges framed against them were under sections 307/149 and 148, as well as under section 307, I.P.C. The learned trial Judge held that none of the charges had been proved against eight accused, namely, Moju, Samela, Kale Khan, Jabra, Mangto, Rangila, Leelaand Lukman. He also found that the charges under sections 307 and 307/1 49, I.P.C. were not proved against any of the fifteen accused. As for the remaining charges, he found the accused Foju and Nasib Khaa guilty, of the offences punishable under sections 148 and 312, f.P.G. Kamil Khan, Malla. Sulernan, Jomkhan and Rehman were found guilty of the offences punishable under sections 147, 302/149, I.P.C. vide trial courts judgment, dated December 21, 1979. The learned Judge, vide his order, dated January 4, 1980, sentenced the accused-appellants Foju and Nasib Khan under section 148, I.P.C. to two years rigorous imprisonment and to pay a fine of Rs.100/- each, in default of payment of which to further suffer one months rigorous imprisonment. He also sentenced both the accused under section 302, I.P.C. to imprisonment for life and to pay a fine of Rs. 200/- each, default of payment of which to further suffer one months rigorous imprisonment. Accused Kamal Khan, Malla, Suleman, Jomkhan and Rehman were also sentenced to one years rigorous imprisonment and to pay a fine of Rs. 100/-each under section 147, I.P.C. in default of payment of which to further suffer one months rigorous imprisonment. They were also sentenced under section 302/149, I.P.C. to life imprisonment and to pay a fine of Rs. 200/-each in default of payment of which to further suffer one months rigorous imprisonment. 2. The convicted accused have preferred this appeal to this court, challenging the conviction and sentences awarded to them. 3. Before dealing with the point raised in this appeal, it is necessary to set out briefly the relevant facts on which the prosecution case against the appellants substantially rests. 2. The convicted accused have preferred this appeal to this court, challenging the conviction and sentences awarded to them. 3. Before dealing with the point raised in this appeal, it is necessary to set out briefly the relevant facts on which the prosecution case against the appellants substantially rests. The incident which has given rise to the present criminal proceedings, took place on March 6, 1978, in village Kakrali, District Alwar, at the time when the sun was one lathiabove the horizon. It is clear that this village was cursed with keen rivalry and enmity between two factions. One group was led by Foju and the other by Iliyas. Iiiyas and other number of his group, Sedu, were murdered and three others Mormal, Amir and Mohd. Khan were injured that date by the members of the rival faction, amongst whom were included the present appellants before us. Litigation continued between the parties for several years with out interruption. The immediate cause of the trouble is said to be some dispute about the grave-yard (Kabristan) land, some portion of which was alleged to have taken possession of by the accused party and the complainants party wanted to get their title verified through the Revenue Authorities and remove the possession of the accused. 4. On the fateful day, four of the party men of the complainant, namely, Banslu, Sedu, Iliyas and Rahmnat went to Alwar to obtain a copy of the order for getting the Kabristan land measured while the other members of their party collected in the room of Bichchya, waiting for the arrival of Iliyas, Sedu and others from Alwar. There they also talked over the matter regarding betrothal of Bansis daughter. That the same day Foju, Nasib Khan and others had also gone to Alwar. Sedu, Iliyas and Rahmat came form Alwar and joined the other members of their party. At that time Foju, Nasib Khan, Suleman, Iliyas, Chhota Bhai, Jom Khan, Kamal Khan and Rehman passed through the way, which fell near the place where Foju and others were sitting. After covering a little distance Foju challenged Iliyas in a tell tale manner to prove the worth of his mothers milk and face Foju. Hearing this noise, Kale Khan, Lukman, Jabra, Mangto, Samela, Rangila, Moju, Lila and other associates of Foju rushed out from the house of Foju and reached the place where Foju was standing. After covering a little distance Foju challenged Iliyas in a tell tale manner to prove the worth of his mothers milk and face Foju. Hearing this noise, Kale Khan, Lukman, Jabra, Mangto, Samela, Rangila, Moju, Lila and other associates of Foju rushed out from the house of Foju and reached the place where Foju was standing. Iliyas came from the house of Bichchya and proceeded towards the direction where Foju was available. At that very moment Foju shot him dead. When Sedu followed him, he was also gunned down by Nasib Khan. Monmal, Amir and Mohd. Khan rushed forward to rescue them. Jom Khan and Suleman fired towards them. Accused Kamal and Malla were supplying cartridges to the persons who were holding guns in their hands. 5. At the police station Alwar two persons Mannu and Ramju appeared at 7.45 p.m. and informed the police that they had heard the noise of gun firing in village Kakrali from their fields. This information was recorded in the General Diary of the police station and the same has been marked as Ex. P. 52. On this information the Station House Officer rang up the Deputy Superintendent of Police, Alwar . Both of them, in the company of some constables, left for village Kakrali at 7.55 p.m. after making an entry to that effect in the General Diary the entry has been marked as Ex. P.53. when the police party had gone five miles away from Alwar towards village Kakrali, they met a tractor trolley on the road, carrying one dead body and four injured persons, Iliyas, Amir, Mohd. Khan, and Mormal. The police party stopped the tractor and recorded the Parcha Bayan Ex. P.20, at 8.10 p.m. This Parcha Bayan was sent to police station Sadar Alwar, with Censurable Sanwant Singh for registering a case and for drawing a formal F. I. R. The Deputy Superintendent of Police and other persons proceeded to village Kakrali and reached the place of the incident. The formal F.I.R. recorded on the basis of Parcha Bayan, is marked Ex. P.38. The injured were taken to the hospital by ' P.W.6 Hurmat and his companions. On March 7,1978 Malkhan Singh visited the hospital. He asked the doctor concerned for performing the autopsy on the dead bodies of Sedu and Iliyas. Their inquest reports are marked Ex. P. 39, and Ex. P. 42. ,The post-mortem reports are Ex. P.38. The injured were taken to the hospital by ' P.W.6 Hurmat and his companions. On March 7,1978 Malkhan Singh visited the hospital. He asked the doctor concerned for performing the autopsy on the dead bodies of Sedu and Iliyas. Their inquest reports are marked Ex. P. 39, and Ex. P. 42. ,The post-mortem reports are Ex. P. 15 and Ex. P. 16. The three injury reports are Ex. P.6. Ex.P.9, and Ex. P. 12. The site was inspected. Some pellet wads were seized form the site along with blood-stained earth. The site plan is marked Ex. P.21. ; Foju, Kamal Khan, Samela and Moja ware arrested on March 17, 1978. Their arrest memos are Ex. P. 57. Ex. P. 56. Ex. P. 55. and Ex. P. 54. Accused Nasib Khan was arrested on March 17, 1978. His arrest memo is Ex. P.58. The arrest memos of Lukman, Mallo, Leela, Rangila, Mangto, Jabro, Kale Khan are Ex. P, 45 to Ex. P. 51 respectively. 6. The licensed gun of Foju and Nasib Khan were seized vide seizure memo Ex. P. 37. The guns are Article 1 and 2 and their licences are Article 3 and 4. The guns, pellets and empties were sent to the Director of the Forensic Science Laboratory while the blood-stained clothes and articles were sent to the Fcrensic Laboratory at Jaipur, to be examined by the Serolgist and Chemical Examiner of the Laboratory. Their reports are marked Ex. P. 62, Ex. P. 64 and Ex. P. 63 respectively. The police, after investigation, submitted a challan against 12 persons, who were committed to the court of Session. The trial court summoned three more accused Jom Khan. Rehman and all the fifteen persons were tried together by the learned Additional Sessions Judge, Alwar. 7. The prosecution sought to establish there case by the testimony of twenty seven witnesses, out of whom P.W. 2 Amir, P.W. 3 Mohd, Khan. P.W. 4 Mormal, P.W. 6 Hurmat. P.W. 7 Mahtab, P.W. 8 Gabdu, P.W. 9 Amman. P. W. 12 Sumer, P.W. 13 Fazru, P.W. 14 Begdal, P.W. 15 Ismail, P.W. 16 Bhoja, P.W. 17 Chandan, P.W. 17 Shitab Khan, P.W. 20 Sher Khan, P.W. 21 Munshi were examined as eye. witnesses of the occurrence. P. W. 25 Prahlad Swaroop Agarwal is the doctor who performed the post-mortem examinations on the dead bodies of Iliyas and Sedu. P. W. 12 Sumer, P.W. 13 Fazru, P.W. 14 Begdal, P.W. 15 Ismail, P.W. 16 Bhoja, P.W. 17 Chandan, P.W. 17 Shitab Khan, P.W. 20 Sher Khan, P.W. 21 Munshi were examined as eye. witnesses of the occurrence. P. W. 25 Prahlad Swaroop Agarwal is the doctor who performed the post-mortem examinations on the dead bodies of Iliyas and Sedu. P. W. 26 is the Police Officer, who participated in the investigation. P. W. 27 Inder Kumar was S. H. O. Kotwali, Alwar. P. W. 8. Dr. S. K. Mukherji was Radiologist, posted in the General Hospital, Alwar, on the date of the occurrence. All the accused persons denied their complicity in the crime. Nasib Khan, Jabro, Mangto and Rehman pleaded alibi. They examined six witnesses in defence including D.W.6 Shri Surendra Singh, the then Chief Judicial Magistrate, Alwar. The learned Additional Sessions Judge at the outset acquitted 8 accused on the request made by the learned Assistant Public Prosecutor without discussing the prosecution evidence regarding them. He, however, convicted the rest of the accused and sentenced them as has been mentioned above. 8. Aggrieved by the above-mentioned judgment, the convicted accused-appellants have challenged their conviction and sentences by way of this appeal. 9. It cannot be disputed that shots were fired at Iliyas and Sedu (since deceased) on the date of the occurrence as a result of which both of them died. From the statement of Dr. Prahled Swaroop Agarwal, PW25 who had performed the autopsy on the dead bodies of the two persons and the statement of other eye witnesses, it stands proved beyond reasonable doubt that who-so-ever fired shots towards them, intended to commit their murders. 10. Mr. Bhimraj Purohit, learned counsel for the appellants, urged that there were certain outstanding features of this case, which according to him, were sufficient to throw doubt on the entire prosecution case. He argues that the prosecution witnesses have concealed the true version of the occurrence. The entire prosecution case is sought to be proved by the statements of partisan witnesses; No independent witness has been examined. The FIR had reached the court of the Chief Judicial Magistrate after considerable time, which creates a grave suspicion about the truthfulness of the prosecution case. Admittedly, a large number of witnesses were declared hostile to. the prosecution. The entire prosecution case is sought to be proved by the statements of partisan witnesses; No independent witness has been examined. The FIR had reached the court of the Chief Judicial Magistrate after considerable time, which creates a grave suspicion about the truthfulness of the prosecution case. Admittedly, a large number of witnesses were declared hostile to. the prosecution. Out of the 15 accused tried by the learned Additional Sessions Judge, 8 have been acquitted and no appeal has been filed against their acquittal, Thus, they have been proved to be innocent and as the case, of the acquitted accused could not be separated from that of the convicted accused appellants, the entire prosecution case must fail. The occurrence took place after sun-set under darkness where none of the accused could have been identified by the prosecution witnesses. The entire case has been falsely foisted against the known enemies of the deceased by the author of the F.I.R. Learned Public Prosecutor supported the judgment of the trial court. 11. We have given anxious consideration to the rival contentions advanced on behalf of both the parties. 12. The motive showing the cause for the crime, as disclosed in the FIR Ex. P 38 was long-standing quarrel between the two rival factions of the village in connection with taking possession of grave-yard land by Foju and others. The immediate cause of the incident as disclosed at the trial was that Iliyas and others had gone to Alwar and had obtained order for inspection of the site and measurement of the graveyard land, which fact infuriated Foju and his party members. P W 6 Hurmat stated that on the date of the occurrence Sedu and Iliyas had obtained the order from the Collector for measurement of the the grave-yard land, trespassed by Foju and others. Prior to the sun-set, they came to the room of Bichchya and told the persons sitting there that there was no question of any quarrel and that the land would be measured in the morning. To the same effect is the statement of Mehtab P W 7, Gabdu and Sher Khan P W 20 and other prosecution witnesses. There statements stand corroborated by Ex. P 65 Ex. P 66 as well as Ex. P 67. Thus there is evidence of motive against the accused-appellants for committing the murder of Sedu and Iliyas. To the same effect is the statement of Mehtab P W 7, Gabdu and Sher Khan P W 20 and other prosecution witnesses. There statements stand corroborated by Ex. P 65 Ex. P 66 as well as Ex. P 67. Thus there is evidence of motive against the accused-appellants for committing the murder of Sedu and Iliyas. No doubt the evidence of motive by itself is not sufficient to fasten guilt on the accused. But it does lend additional support to the findings of guilt if arrived at by the court against the accused. 13. F. I. R. in this case was received by the Chief Judicial Magistrate on March 17, 1978. P. W. 27 Inder Kumar stated that he had received the F. I. R., Ex. P. 38, in police case No. 37 of 1978, on March 7, 1978, at village Kakrali. It was brought by Sanwant Singh Constable No. 307, after registration of the case at the police station. In cross-examination he stated that it was wrong to suggest that the F. I. R. was not recorded on the date of the occurrence and that it was recorded after 5 or 10 days. A perusal of the F. I. R. shows that it bears dispatch No. DR 1179, dated 7. 3 78 It also bears mark "3. 7". 10.45 which indicates that it must have been received by another court from which it was sent to the Chief Judicial Magistrates court. The requirement of section 157, Cr. P. C., is that a copy of the report is required to be sent to the Magistrate empowered to take cognisance of such offence forthwith and there was nothing wrong if the police officer sent or filed a copy of the F. I. R. in the court of the Magistrate within whose territorial jurisdiction the particular police station was situated. The inquest report of Iliyas Ex. P. 59 was prepared on March 7, 1978. It bears the number of F. I. R. as 37/78. Ex. P. 42 inquest report of Sedu, was also prepared on March 7, 1978 which bears the F. I. R. No. as 37/78. The inquest reports could not have been prepared afterwards because they are required to be prepared prior to the autopsy being done on the dead-bodies. It bears the number of F. I. R. as 37/78. Ex. P. 42 inquest report of Sedu, was also prepared on March 7, 1978 which bears the F. I. R. No. as 37/78. The inquest reports could not have been prepared afterwards because they are required to be prepared prior to the autopsy being done on the dead-bodies. An entry of the case number in these documents does lend assurance to the fact that the F. I. R. of this case was recorded prior to the preparation of the inquest report. P. W. 26 Malkhan stated that Constable Sanwant Singh No. 307 filed a statement Ex. P. 20 before him on the basis of which he recorded the F. I. R. Ex. P 38 in the prescribed form and registered the case at No. 37/78 under sections 302, 307/147, 149 and 148, I. P. C. He further states that the F. I. R. was in his hand and it bears his signature. In cross-examination the witness stated that on the same day he directed the Constable to dispatch the F. I. R. to the court. This witness has not been cross-examined on the point that the F. I. R. of this case (No. 37/78) was not recorded on the date and of the time alleged by him and as such it cannot be said that the investigation of this case was tainted. In Balkaren Singh & Ors. v. The State of Rajasthan, 1977 W.L.N. 173, a Division Bench of this Court, to which one of us was a party, placing reliance o n Pala Singh v. The State of Punjab, AIR 1972 S.C. 2679 held that : "It is well settled that mere delay in dispatch of the first information report is not a circumstance on the basis of which the entire prosecution case be thrown out." The learned Additional Sessions Judge who had had the advantage of observing the demeanour of the witness in the witness-box, after taking over-all view of the case, has held that there was nothing to hold that there was delay in dispatching the F. I. R. to the court. Relevant portion of the judgment reads as under : " ,slh fLFkfr esa ;g izdV ugha gksrk fd izFke lwpuk U;k;ky; esa Hkstus esa foyEc gqvk vkSj blfy, ;g rdZ Lohdk;Z ugha jgrkA " We find no reason to hold otherwise and approve the finding of fact arrived at by the trial court on this point. 14. Now arises the foremost question as to when the occurrence took place and whether the accused could have been identified by the prosecution witnesses. Learned counsel for the accused vehemently urged that the prosecution witnesses were not consistent regarding the time of the occurrence. The injured witness P.W. 3 Mohd. Khan stated that due to darkness he could not identify the accused. Mormal also made a statement to the same affect. They are injured persons and benefit of doubt, the counsel adds, must go to the accused. Whereas learned counsel for the State urged that the consistent case of the prosecution cannot be thrown out simply on the basis of the statements of hostile witnesses who were won over by the accused. The distance between the place of occurrence and the police station, Alwar, is eight miles. A perusal of the statement of P. W. 27. Inder Kumar shows that on March 6, 1978, at 7 45 p. m. Ramju and Mannucameto the Police Station and informed him that the guns had been fired in village Kakrali. He recorded the information Ex. P. 52 at no. 182 of the General Diary. He also stated that he had set out for the spot after making over charge of the police station to Malkhan Singh P.W. 26 and the report marked as Ex. P. 53, regarding his leaving the police station, was recorded at No. 181 in the General Diary. The witness further goes on to state that on the way they saw a tractor in which the injured and the deceased were being taken to the hospital. He recorded the statement of Hurmat (Ex. P. 20) and sent police constable No. 307, Sanwant Singh, to the police station, Alwar, for registering the case. A perusal of the F. I. R. shows that the occurrence took place when the sun was nearly a lathi above the horizon. He recorded the statement of Hurmat (Ex. P. 20) and sent police constable No. 307, Sanwant Singh, to the police station, Alwar, for registering the case. A perusal of the F. I. R. shows that the occurrence took place when the sun was nearly a lathi above the horizon. P. W. 15 Ismail stated that nearly 11/2 years prior to the date of his giving the statement in the court when the sun was a lathi above the horizon, he saw near the house of Gafoora, Suleman, Nasib Khan, Foju, Jomkhan, Kamal Khan, Malla and Rahman, out of whom Foju and Nasib Khan were armed with guns and thereafter he narrated as to how the occurrence took place at the time when the sun had not set in. P. W. 17 Chandan stated that the occurrence took place at the time when the sun was a lathi above the horizon. No doubt some of the prosecution witnesses, who were declared hostile, by the prosecution, stated that the occurrence took place at night. Some of them stated that it took place after Namaj. Villagers generally do not keep watches and the rustic village witnesses are not expected to give exact time of the occurrence. However, the fact remains that the report in Rojnamcha-am was recorded at 7. 45 p. m. in the police station, Alwar. The distance between the place of the occurrence and the police station is about 8 miles. After hearing the gunshot, informant must have taken some time for going to Alwar and must have spent an hour or so to reach the police station. It has also come in evidence that after the accused left the scene of the occurrence, the deceased and the injured were put in a tractor. They covered the distance of nearly five miles and met the police party at about 8. 10 p. m. Witnesses having been injured and seeing the ghastly murders, must have taken some time to recompose. Thus, from whatever angle it is examined, the occurrence must have taken place either prior to the sunset or just at the time of the sunset. It is common experience that even after the setting of the sun it does not become dark and there would be twilight for considerable time, which would enable one to identify others specially when the persons were well known from before. It is common experience that even after the setting of the sun it does not become dark and there would be twilight for considerable time, which would enable one to identify others specially when the persons were well known from before. In Nirmal Singh v. State of Rajasthan (1972) 3 S.C. 781 , wherein the occurrence took place on September 30, 1965 and the occurrence was alleged to have taken place at 7 or 7, 15 p. m., their Lordships of the Supreme Court observed that, "The High Court accepted the appreciation of the evidence of the trial court and further pointed out that the place from which the firing took place at which the deceased was hurt were at a distance of 10 and if there was darkness, the assailant could not have correctly aimed at the passed specially when she was not expected to be present there at that time. The High Court further referred to the common experience that even after the setting of the sun, twilight continues to remain present for considerable time in that part of lie country specially in the months of September and October, when the sky is comparatively clearer than in other months. We have no reason to differ from the conclusions arrived at by both the courts that there was sufficient light for the eyewitnesses to identify the person or persons who were shooting from the house of the appellant." 15. Admittedly the accused and the victims of the assault as well as the witnesses belong to the same village. They were very well known to each other and we find no reason to reverse the finding of the trial court that the accused-appellants were identified by the witnesses and there was sufficient light in which the accused could have been identified. In a matter like this, the appellate court should permit the finding of fact recorded by the trial court to prevail, unless it clearly appears that some special feature about the evidence has escaped the notice of the trial court, vide Sara Veeraswami v. Talluri Narayya, AIR 1949 P.C. 32 and Walt v. Thomas, 1947 A.C. 484. 16. We have got statements of 20 eye-witnesses out of whom 15 were declared hostile. 16. We have got statements of 20 eye-witnesses out of whom 15 were declared hostile. The learned Additional Sessions Judge held that 5 witnesses, P W 14 Bagdai P W 15 Ismail, P W 16 Bhoja, P W 17 Chandan and P W 20 Sher Khan are witnesses of truth out of the above noted eye-witnesses. P W 15 Ismail stated that prior to sunset when the sun was a lathi above the horizon at the time he reached the house of Gafoora, and saw accused Suleman, Nasib Khan, Foju, Jomkhan, Komal Khan, Rehman, Malla, standing, there, Foju and Nasib Khan, Suleman and Jomkhan were armed with guns. 8 or 7 persons were standing near the house of Foju. They were armed with lathis, Pharsi and other weapons. Foju told Iliyas in a tell tale manner that if his mother had fed her milk, he should come forward and face him. On the call of Foju, Iliyas came towards Foju. Foju shot him dead. Sedu came out from : the house of Bichchya to find out as to what had happened, but he, too, was shot dead by Nasib Khan, Mormal, Amir Khan, Mohd. Khan, came to rescue them, but they were also shot at by Suleman and Jom Khan. The witness and other persons hid themselves under the heaps of wheat and barley stalks which were lying there. All the accused then proceeded towards the house of Foju. While going there, they fired shots and thereafter the witness ran away to his own house. The witness further states that there was a long standing quarrel between Sedu, Iliyas Airman, Amir, Mormal, Mohd. Khan, and Shitab on one side and Foju, Bhanda, Sher Khan and others in connection with the grave-yard land. The former wanted the latter to abandon its possession. The learned counsel for the accused had laid much stress on the point that this witness in the cross-examination admitted that Sedu (since deceased) was not sitting on the Kudi but had come from the side of Bichchya's house and Iliyas had also come from that side. Thus he had given a contradiction version from the case set up by the prosecution in the F.T.R. Most of the persons were sitting in the Chopal of Bichchya. The witness was confronted with his police statement regarding certain details as to whether normal, Amir and Mohd. Thus he had given a contradiction version from the case set up by the prosecution in the F.T.R. Most of the persons were sitting in the Chopal of Bichchya. The witness was confronted with his police statement regarding certain details as to whether normal, Amir and Mohd. Khan were shot at the time when they came to lift Foju and Nasib. Certain omissions in the police statements were also put to him. 17. We would consider the effect of the above noted contradictions and omissions after giving substance of the statements of other witnesses. 18. P W 17 Chandan stated that on the date of the occurrence when the sun was a lathi above the horizon, Mehtab, Moju, Kundan, Fajru, Iliyas and others were sitting in the house of Bichchya and were talking about the betrothal ceremony of Banshis daughter. At that stage Iliyas got up and went out. Towards that very site the accused Foju, Nasib Khan, Suleman, Jomkhan, Kamal Khan, Malla and Rehman came. Foju challenged Iliyas and told him to prove the worth of his mothers milk. When Iliyas stepped forward, Foju fired his gun hitting Iliyas on his head. Sedu felt astonished and uttered what had happened suddenly. Saying this when he reached near Iliyas, he was also shot at, as a result of which he fell down. Mormal, Mohd. Khan and Amir came to find out what had occurred, but they were also not spared and shots were fired at them, as a result of which they fell down. The witness goes on to state that he saw the persons, who had fired shots towards them. Suleman and Mohd. Khan fired the shots towards the above-noted three persons. Malla and Kamal Khan were having bags and cartridges with them and were handing them over to the persons who were firing the shots. Sedu and Iliyas died of injuries. The cause of the quarrel was the trespass by Samila, Malla and others on the grave-yard land, which Iliyas and Sedu (since deceased) wanted to remove. To the same effect are the statements or P W 18 Shitab Khan and Sher Khan PW 20. These witnessed have been cross-examined at length. Sedu and Iliyas died of injuries. The cause of the quarrel was the trespass by Samila, Malla and others on the grave-yard land, which Iliyas and Sedu (since deceased) wanted to remove. To the same effect are the statements or P W 18 Shitab Khan and Sher Khan PW 20. These witnessed have been cross-examined at length. No doubt there are certain discrepancies in the statements of these witnesses regarding minor details, hut it should not be forgotten that the discrepancies in minor details and contradictions in narration and embellishment do not militate against the veracity of the testimony of a witness, provided there is impress of truth and conformity of probability in the substantial fabric of the testimony delivered. Improvements made by witnesses and variations in there earlier and latter statements are not by themselves sufficient to hold their testimony infirm vide Madsoodan and others v. State of U. P., AIR 1983 S.C. 126 . Photographic description of events is not expected from truthful witnesses unless they are tutored. On the other hand minor discrepancies indicate that the witnesses have not been tutored to make a parrot like version. 19. Much stress has been laid on the point that eight accused have been acquitted. It is, in our view, not necessary to express any opinion on the point as to whether those 8 accused were rightly acquitted or not. The impugned judgment simply speaks that the learned Judge acquitted those accused because the learned Public Prosecutor stated that no case had been made out against them. The learned Judge has not given reasons as to why he considered that no case has been made out against those 8 persons. All that we can say, is that the benefit of doubt which resulted in the acquittal of 8 accused would not vitiate the conviction of the appellants as the evidence against the present appellants is sufficient, satisfacotry cogent and convincing. Besides, the statements of these witnesses stand corroborated in material particulars by the statement of Hurmat P.W. 6, though this witness was declared hostile. Simply because the prosecution was allowed to cross-examine the witness, it cannot be said that he for all purposes is an untrustworthy witness and no part of his statement can be regarded as representing truth. Besides, the statements of these witnesses stand corroborated in material particulars by the statement of Hurmat P.W. 6, though this witness was declared hostile. Simply because the prosecution was allowed to cross-examine the witness, it cannot be said that he for all purposes is an untrustworthy witness and no part of his statement can be regarded as representing truth. The question before the court in such a case would be to decide which part of his testimony is false and which part of his evidence is truthful, provided that there is the required degree of conviction in the mind of the court that a particular part of the testimony of a witness, whether it forms part of examination-in-chief or cross-examination is true. It is open to the court to say so even after the witness was permitted to be cross-examined. Reference in this connection may be made with advantage to a Division Bench decision of this Court in Babu Lal v. State of Rajasthan, 1776 Cr.L.R. (Raj.) 425. (to which one of us was a party). The maxim falsus in uno falsus in omnibus (false in one thing false in all) is neither a rule of law nor a rule of practice in India. It has also been observed by their Lordships of the Supreme Court in Sohrab and another v. The State of Madhya Pradesh, AIR 1972 S.C. 2020 . that : "Falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments.'' 20. Looking to the conditions in this country, it is the duty of the court in case where witnesses have been found to have given evidence in regard to certain particulars to scrutinise his evidence with care and caution. If his evidence is trustworthy and the substratum of the prosecution case remains unimpaired on the thole, the court should uphold the prosecution case to the extent it is considered safe and trustworthy. This witness has supported the prosecution case as regards motive for the commission of the crime by the accused-appellants and has given considerable details regarding it which find corroboration from the documentary evidence on record. He has also stated that. This witness has supported the prosecution case as regards motive for the commission of the crime by the accused-appellants and has given considerable details regarding it which find corroboration from the documentary evidence on record. He has also stated that. " ;g lgh gS fd jkLrs esa tc iqfyl us eq>ls iwNrkN dh rc eSaus ,d ne lgh ckr crkbZ FkhA " The statement was reduced in writing and it has been treated as F. I. R. 21. While scanning the evidence the court must keep in view whether the scene of the occurrence is rural or urban. The witness is a village rustic. Minor variations in narration of details do appear in the statement of such a witness. But on that count his testimony cannot be discarded. Unnecessary effort to harmonise details betray police tutoring. We do not find any merit in the contention of the learned counsel for the accused-appellants that the above noted witnesses were not "'.present on the scene of the occurrence and that their evidence relating to the incident is not true. 22. Learned counsel urged that in the F. I. R. 14 accused have been named, out of whom 8 have been acquitted and as such the prosecution has substantially failed to prove the case set up by it in the F.I.R. and it cannot be said with certainty that the evidence of the same witnesses regarding the remaining accused is true. A perusal of the statements of the witnesses as well as of the F. I. R show that Kalu Khan, Lukman, Jabra, Mangta, Samela, Rangile, Manju and Lila had not appeared on the scene of the occurrence along with Foju and Nasib Khan. They are alleged to have been waiting at the house of Foju and reached the scene of the occurrence when Foju had already challenged Iliyas. No specific part has been assigned to these accused that might have led the Addl. Sessions Judge to give them benefit of doubt. Moreover, the learned Addl. Sessions Judge has not discussed the evidence regarding these accused and has acquitted them only on the submissions made by the Public Prosecutor. He has nowhere held that the statements of the witnesses examined on behalf of the prosecution are not reliable. Sessions Judge to give them benefit of doubt. Moreover, the learned Addl. Sessions Judge has not discussed the evidence regarding these accused and has acquitted them only on the submissions made by the Public Prosecutor. He has nowhere held that the statements of the witnesses examined on behalf of the prosecution are not reliable. It is, in our opinion, not necessary for us to make any observation on the point as to whether these 8 accused were rightly acquitted or not. All that we can say is that the acquittal of the other 8 accused would not vitiate the conviction of the remaining accused based on the testimony of the witness relied upon by the trial court as discussed by us in detail; vide Raghubir Singh v. State of Uttar Pradesh AIR 1972 S.C. 2156. The statements of the witnesses have been corroborated in material particulars by (he medical evidence as well as by the evidence of motive for the commission of the crime. The fact that on the date of the occurrence Iliyas and others had gone to Alwar and they returned and informed other members of the village that the area trespassed by the accused out of the grave-yard would be measured, do lend support to the prosecution case. When this fact is considered, in conjunction with the face that the six accused-appellants had passed through the way lying in front of the house of Bichchya, after being armed with fire arms, and Foju challenged Iliyas, is suggests that they were wandering about to trace out their pray. Even though the evidence regarding Kamal Khan and Malla for supplying the cartridges, may be exaggerated, yet the evidence on record is sufficient to lead an inference that all the accused-appellants intended to take revenge and Cause the death of Iliyas and who-so-ever come forward to his help or at-least they intended to cause such bodily injuries as would be in the ordinary course of nature be sufficient to cause their death. The appellants, therefore, are clearly guilty of the offence of murder and causing injuries. The appeal, therefore, fails. It was urged that besides the witnesses examined in the case, presence of independent witnesses, on the scene of the occurrence or near about at the time of the incident has been proved, but the prosecution has failed to examine them. The appellants, therefore, are clearly guilty of the offence of murder and causing injuries. The appeal, therefore, fails. It was urged that besides the witnesses examined in the case, presence of independent witnesses, on the scene of the occurrence or near about at the time of the incident has been proved, but the prosecution has failed to examine them. Purposefully with-holding of independent witnesses by the prosecution is explicable to only one hypothesis that if examined, they would not have supported the prosecution case and would have supported the defence theory. The report Ex. P. 52' Rojnamcha-Amdoes not indicate that the two persons, namely, Ramju and Mannum had seen the occurrence and as such it cannot be said that if they were examined, they would have unfolded the story in favour of the accused, As regards the non-examination of the Officers, who passed orders Ex. 65, 66 and 67 suffice to say that these witnesses cannot be treated to be witnesses necessary to unfold the case. The orders passed by them have already been placed on record which relates to the evidence of motive and actual happening of the occurrence. Even at the risk of repetition we will like to mention that out of 20 eye-witnesses produced by the prosecution, 15 were declared hostile and production of any other witness who was not willing to make a statement in the court, would have in any way furthered the cause of justice. In a recent case reported in Maqsoodans case (supra), it has been observed that it is not the number of witnesses examined nor the quantity of evidence adduce by the prosecution that counts. It is the quality that counts. 23. A similar [question was raised before their Lordships of the Supreme Court in Masalti v. The State of Uttar Pradesh, AIR 1965 S.C. 202 . Gajendregadkar, C. J., speaking for the Court observed as under:- "It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made cither to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box in the interest of justice under S. 540 Cr. P. C." 24. It was further urged that the investigation in this case was not fair and as such the entire case should be thrown out. In support of the above contention the learned counsel has placed reliance on the statement of D. W. 6 Shri Surendra Singh. A perusal of the record of the committing court as well as the order, dated March 18, 1978, passed by the learned Magistrate, reveals that the accused Moja, Kamal Khan and Samela were arrested on March 10, 1978 in connection with the occurrence, dated March 6, 1978, in which two persons were murdered and three were injured, which formed the subject-matter of this appeal. The bail application No. 19/44 of 1978 was filed before the learned Magistrate on March 14, 1978. On March 18, 1978 he rejected the bail application, but observed therein as under : " eqyfteku ds fojsUnz dks lk{; gS og u dqN ds cjkcj gS vkSj bl U;k;ky; n~okjk bl vfHk;ksx esa izkFkhZ dh eqyfteku dh tekur vklkuh ds yh tk ldrh gSA ysfdu ;g vijk/k /kkjk 302 rk0 fg dk gS vkSj turk dh dsoy vkHkkf"kar U;k; nsus dh n`f"V ls bl LVst esa ;g nj[okLr tekur vLohdkj djrk gwWaA " As a result of the above observation, the bail application No. 127 of 1978, filed by the same accused before the learned Sessions Judge, was allowed on March 22, 1978 (Ex. P. 69) and the accused were ordered to be released on bail. Accused Lukman, Mallo, Leela, Rangila, Mangto, Jabro and Kale Khan were arrested on March 30, 1978 vide arrest memos Ex. P. 45 to Ex. P. 51 respectively. Their bail "Application was filed before the learned Chief Judicial Magistrate i. e. PW 6 on April 1978. P. 69) and the accused were ordered to be released on bail. Accused Lukman, Mallo, Leela, Rangila, Mangto, Jabro and Kale Khan were arrested on March 30, 1978 vide arrest memos Ex. P. 45 to Ex. P. 51 respectively. Their bail "Application was filed before the learned Chief Judicial Magistrate i. e. PW 6 on April 1978. The learned Chief Judicial Magistrate while rejecting the ball application vide order dated April 3. 1978 (Ex. D. 6) observed that he seen the diary and on March 18, 1978 excepting the statements of Amir Khan, Sher Mohd, Mormal, Gabdu, Kuttan, Sumer and Bagdal the statements of other witnesses had not been recorded. He also observed as to why Mr. Inder Kumar had signed the diary in 'between, It was also mentioned in the order that in the diary of March 7,1978, there was the mention of the statements of Fajru, Moja, Noormal, and Munshi, but they were not found in the diary produced before him, On the basis of the above {observations, made by the learned Chief Judicial Magistrate (D. W. 6), the learned Addl. Sessions Judge, vide his order, dated April 10, 1978 (in Cr. Misc Case No. 168/78) accepted the bail application of accused Kale Khan, Mangta. Leela, Malla, Lukman, Jabra and Rangila and they were released on bail. 25. Learned counsel for the State contended that the accused involved in this case were influential persons as observed by the learned Addl. Sessions Judge in the impugned judgment and from the very beginning serious attempt has been made to damage the prosecution case and the learned Chief Judicial Magistrate (D.W. 6) ill a prey to that conspiracy. The way in which the bail applications were decided by D.W.6 has left in our mind somewhat unhappy impression with respect to the whole matter, We need say nothing more on this point. The prosecution case cannot be thrown out on the basis of the statement of D.W.6, The police Regulations have many checks and the learned counsel for the accused ought to have brought further material on record if he wanted to place reliance on unfairness of the investigation. 26. The prosecution case cannot be thrown out on the basis of the statement of D.W.6, The police Regulations have many checks and the learned counsel for the accused ought to have brought further material on record if he wanted to place reliance on unfairness of the investigation. 26. Lastly, It was urged that the entire prosecution case was based on the statement of partisan and interested witnesses who have absent regard for truth and the trial court committed a grave error in convicting the accused and placing reliance on the statements of P.W.15, to P.W. 20 and P.W.6, It is not unknown that where serious offences like multiple murders are committed, a number of persons are injured and a large number of accused persons are tried, attempt is made either to terrorise or win over the prosecution witnesses and if the prosecution honestly and bona fide believes that some of the witnesses have been won over, it would be unreasonable to insist that he must tender all such witnesses. It has been unequivocally laid down by their lordships of the Supreme Court in Raghubir Singh's case (supra), that "the prosecution is not bound to produce all the witnesses mentioned in the F I R." There is no doubt that when a criminal court has to appreciate the evidence given by witnesses who are partisan or interested, it has to be more careful in weighing such evidence. There is no doubt that a criminal court has to appreciate whether or not evidence strikes as genuine or whether or not the story disclosed by the evidence is probable. But it would be unreasonable to content that evidence given by witnesses should be discarded only on the ground that it is the evidence of partisan or interested witnesses. In a recent case reported in Madhusudan Das v. Smt. Narayani Bai and others, AIR 1983 S.C. 114 . (ii), it has been observed that mere relationship is no ground for rejection of evidence. Often enough, where factions prevail among villagers and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. Mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid as to how such evidence should be appreciated. Mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence. Appreciation of evidence in such a complex case, as in the hand, is no doubt a difficult task, but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not. There is nothing on record to hold that any of the accused-appellants convicted by the lower , court was a mere chance witness or had joined the assembly as a matter of curiosity without intending to entertain the common object of Foju, Nasib and others. In fact, section 149, I.P.C., makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence, and that emphatically brings out the principle that the punishment prescribed by S. 149, 1 P.C., is in a sense of vicarious liability and it does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Coming together after being armed with deadly weapons, firing shots one after the other and running away together make all the appellants liable for the offences with which they stood charged. 27. In the result, the appeal is dismissed. The conviction and sentences passed by the learned Addl. Sessions Judge No. 1, Alwar are upheld. *******