Judgment Ram Naresh Thakur, S. H. S. Abidi, JJ. 1. On 18th October, 1978 at about 5 A. M. , P. W.6 Ram Chandra Singh alongvvith his nephew deceased Nityanand Singh and his brother Ganesh Singh (P. W.7) was going to Sirasia khandha in village Ariyan, police station Hisua in the district of Nawadah to see their fields whether they had become fit for broadcasting Khesari seedling. While they were proceeding towards their fields and had reached on the ridge of the field of one Balmiki Singh, the appellants come there from behind and surrounded them from all sides. Appellant Batoran was armed with a bhujali, appellant sidheshwar was armed with a garaso, appellant Kapil was armed with a khanti and the rest were armed with lathi. Appellant Mahendra asked the other appellants to assault them whereupon appellant Sidheshwar gave a garasa blow on the right thigh of Nityanand Singh. Nityanand fell down on the ridge. Appellant Sidheshwar hurled another blow on the informant but he warded off the same with the lathi in his hand. In the meantime, appellant Batoran gave a bhujali blow on the neck of Nityanand due to which his throat was cut and he died then and there. On alarm some witnesses came to the place of occurrence and then the appellants left the place. 2. After the occurrence the informant (P. W.6) went to the police station where P. W.10, who was the officer-in-charge of Hisua police station at the relevant time, "recorded his statement at about 8 A. M. on the basis of which a case was registered and he (P. W.10) took up the investigation. He went to the place of occurrence, found the dead body of Nityanand on the ridge with injuries, and sent it for post-mortem examination at Nawadha Hospital After post-mortem examination was held by (P. W, 9) at Nawadah Hospital, a petition was filed on behalf of the informant that the post-mortem examination was not conducted properly. On this protest, the dead body was sent to Patna Medical College hospital where another post-mortem examination was conducted by P. W.8 dr. R. B. Choudhary on 20th October, 1978. After completing investigation, chargesheet was submitted against all these appellants. 3. Ultimately, all the appellants were put on trial where 11 witnesses were examined on behalf of the prosecution to prove the charges. R. B. Choudhary on 20th October, 1978. After completing investigation, chargesheet was submitted against all these appellants. 3. Ultimately, all the appellants were put on trial where 11 witnesses were examined on behalf of the prosecution to prove the charges. The appellants denied the allegation and pleaded their innocence. Their further case appears to be that the deceased might have been done to death in the night somewhere else and due to enmity the appellants have been entangled in the case. No witness was, however, examined on behalf of the defence. 4. After considering the entire evidence the learned court below convicted appellant Batoran Singh under Sections 302 and 148 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life under Sec.302 and six months rigorous imprisonment for the offence under Sec.148 of the code, the two sentences having been directed to run concurrently. Appellant sidheshwar Singh was convicted under Sections 324 and 148 of the Indian Penal code and he was sentenced to suffer rigorous imprisonment for six months separately for each of the two offences, the sentences having been ordered to run consecutively. Appellant Kapil Singh was convicted under Sec.148 of the indian Penal Code and was sentenced to undergo rigorous imprisonment for six months. Appellants Mahendra Singh, Brijnandan Singh and Niranjan Singh were found guilty of the offence under Sec.147 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for three months. It may be stated that the court below had framed a charge under section 302/149 of the Indian Penal Code against all the appellants except appellant batoran Singh but it came to the conclusion that the prosecution failed to substantiate this charge against them. 5. Learned counsel appearing for the appellants, though, has not challenged the factum of death of the deceased due to violent attack, he has seriously challenged the manner of occurrence and the participation of these appellants in the alleged crime. According to his argument, the deceased was done to death some where else and on being detected, his dead body was brought and kept at the ridge where it was found by the investigating officer. It has also been argued that nobody saw the actual occurrence. 6. Besides the oral evidence there is the medical evidence to come to the conclusion that deceased Nityanand Singh died of injuries. It has also been argued that nobody saw the actual occurrence. 6. Besides the oral evidence there is the medical evidence to come to the conclusion that deceased Nityanand Singh died of injuries. Of course, there are certain discrepancies in between the evidence of the two doctors who conducted the post-mortem examinations but the fact remains that there is consistent evidence that the deceased died of injuries. This fact, as stated earlier, is not disputed even before this Court. We, therefore, find and hold that the deceased died of injuries. 7. The question which now remains to be considered is whether the deceased was assaulted in the manner as alleged by the prosecution. It has been seriously contended by learned counsel for the appellants that the injuries found on the person of the deceased would not have been caused in the manner as alleged by the prosecution. According to him the injury caused on the neck would have caused profuse bleeding and blood would have even sprouted but no sprouting was found by the investigating officer, rather simply blood was found at two places near the wound itself and at no other place. Learned counsel further contended, that if the occurrence would have taken place in the manner as alleged by the prosecution, the deceased must have fallen down in the field and his dead body would not have remained on the ridge (the demarcation line of two fields is commonly called ridge in this area) which was only two foot in width. True it is that the dead body was found on the ridge and blood was found at two places where there were wounds. The doctor (P. W.8) has said that from injury No.1 there would have been profuse bleeding with even sprouting of blood. But on this ground alone, the evidence of the eye witnesses cannot be thrown out. No. doubt the arguments look attractive but when carefully examined, we do not find any merit in them. It has to be remembered that the occurrence took place in the month of October when winter season starts and the morning hours are somewhat foggy. It depends upon man to man how injuries bleed. According to the prosecution case the first blow was given on the leg on which the deceased fell down and then the next blow was given on the neck. It depends upon man to man how injuries bleed. According to the prosecution case the first blow was given on the leg on which the deceased fell down and then the next blow was given on the neck. The doctor has found these two injuries, one on the leg and the other on the neck. Naturally, when the deceased was lying and then blow was given on the neck by bhujali, which is a heavy sharp weapon, it is not necessary that blood would have sprouted. 8. It has been argued that the deceased was assaulted and killed some where also and the dead body was kept at the place where it was found by the investigating officer. But the investigating officer did not find any trail of blood. There is no material on the record whatsoever even to suggest that he would have been assaulted somewhere else. We are conscious of the fact that in a criminal trial the accused is not called upon to say anything or to give a defence version. But ordinarily, in a case like this a question arises that if the deceased was not assaulted at the place alleged by the prosecution, where was he assaulted then There is nothing to suggest or even to indicate that he was assaulted somewhere else. At this very stage it will be relevant to consider the evidence of p. W.9, the doctor of Nawadah, who conducted the first post-martem examination. We must say with due respect to him that his evidence does not inspire confidence. The inquest report (Exhibit 4) indicates that two injuries were found by the investigating officer, one above the knee and the other on the neck and both the injuries were bleeding. P. W.8, who conducted the subsequent postmortem examination, also found only two injuries ; one injury on the right thigh and the other on the neck. But P. W.9 found four sharp cut injuries and one abrasion. Therefore, the injuries as noted in the inquest report (Exhibit 4) did not tally with the findings of P. W.9. When the injuries mentioned in the inquest report were not consistent with the injuries found on the dead body, the matter under the rules, should have been referred to the Civil Surgeon and the superintendent of Police in whose presence the post-mortem should have been conducted, but P. W.9 did not observe this rule. When the injuries mentioned in the inquest report were not consistent with the injuries found on the dead body, the matter under the rules, should have been referred to the Civil Surgeon and the superintendent of Police in whose presence the post-mortem should have been conducted, but P. W.9 did not observe this rule. According to P. W.9 the inquest report did not contain the correct number of injuries. But still he conducted the postmortem examination without any information to the Superintendent of Police and the Civil Surgeon. Subsequently, as stated above, when P. W.8 conducted the post-mortem examination, he found only two injuries as indicated in the inquest report. P. W.9 has said that the injury found on the neck was soiled with cooked rice and vegetable materials and has further said that the stomach contained boiled rice and cooked vegetables. According to this witness the intestines and bladder were empty. But P. W.8 who conducted the subsequent post-mortem examination, has not said that he found any cooked rice in the stomach. The informant, just on the next day (19th October, 1978) filed a protest petition which is Exhibit 8. Therefore, we find that the apprehension of the informant was correct and rightly there was second post-mortem examination by another doctor. As stated above, the dead body was found at a distance of about 150 yards from the village on a ridge. It does not stand to reason as to now when he was killed there, there would be cooked rice and vegetable materials in the neck. After taking food when he should have gone to some distance, the food materials must have gone into the stomach and would not have remained in the neck. Therefore, for these reasons, we cannot place any reliance on the evidence of P. W.9. 9. Next it has been argued that the deceased was aged about 15 years and he had no personal enmity with the accused persons. Therefore, there was no reason as to why he would be chosen to be killed. Thus, there is no evidence to show that the deceased was directly involved in any case with the appellants but from the evidence it appears that the informant has two more brothers ; one is p. W.7 and the other is Paras. Paras has three sons, the deceased was one of them. Thus, there is no evidence to show that the deceased was directly involved in any case with the appellants but from the evidence it appears that the informant has two more brothers ; one is p. W.7 and the other is Paras. Paras has three sons, the deceased was one of them. Vijoy is own brother of the deceased From the evidence it would appear that vijoy had filed cases against the appellants and he had taken important role in the litigation. Therefore, it is not quite improbable that the deceased was chosen to be killed for the aforesaid reason. It has also to be remembered that it is very difficult to know the mind of a culprit. Therefore, there is nothing improbable that the deceased, a young chap of the family, was picked up to be killed to take good retaliation. 10. It has also been argued that being a boy of 15 years and a student, the deceased had no occasion for going to the fields to see whether they were fit for broadcasting khesari seedling when there were other members of the family. It has to be remembered that both parties belong to a village. It has come in evidence that all the three brothers of the informant were separate among themselves. When p. Ws.6 and 7 were going to see their own fields, it is not unnatural that the deceased also might have accompanied them to see his own field because it was morning hour. In villages even students look after and do some cultivation work. There is nothing uncommon in it. 11. Lastly, it has been argued that the witnesses in the present case are all interested persons and, therefore, they should not be relied upon, especially in the absence of any independent witness. The occurrence is alleged to have taken place in the morning hour at about 5 A. M. In villages people come out of their houses during this hour to answer the call of nature as well as to see their fields. Therefore, the presence of the witnesses cannot be doubted inasmuch as it was the month of October when farmers come out of their houses to look to their paddy fields. In this case the information was lodged at 8 A. M. , the police station being at a distance of six miles from the place of occurrence. Therefore, the presence of the witnesses cannot be doubted inasmuch as it was the month of October when farmers come out of their houses to look to their paddy fields. In this case the information was lodged at 8 A. M. , the police station being at a distance of six miles from the place of occurrence. It is, thus, evident that the First Information Report was lodged without loosing any time. The eye witnesses have been cross-examined at length. We do not find anything to disbelieve their evidence nor has anything been shown to us to discredit their testimony, as regards the assault by appellants Batoran Singh and Sidheshwar singh on the deceased is concerned. 12. Now we take up the individual case of each appellant to find out whether the prosecution has succeeded in proving the charges against all the appellants. The consistent evidence is that Sidheshwar Singh gave a garasa blow on the leg of the deceased on which he fell down and then Batoran Singh gave a bhujali blow on his nock. Of course, the informant has said that Sidheshwar singh hurled a garasa blow on him as well which he warded off by lathi. The fact remains that no injury was found on the person of the informant. 13. After consideration of the entire evidence, the participation of appellants Mahendra Singh, Kapil Singh, Brijnandan Singh and Niranjan Singh in the occurrence appears to be doubtful. Though a part has been assigned to appellant mahendra Singh that he ordered for assault, but this does not appear to be reasonable. When they had come to assault, what was the need of order No other appellants are alleged to have participated in the assault. Niranjan, at the time of occurrence, was a student of class VI or class VII and he was a minor. Brijnandan was also aged about 15 to 16 years. As said earlier, the charge under section 302/149 of the Indian Penal Code, framed against appellants Kapil Singh, sidheshwar Singh, Mahendra Singh, Brijnandan Singh and Niranjan Singh was not found to have been proved and, therefore, they were acquitted of that charge by the court below. Brijnandan was also aged about 15 to 16 years. As said earlier, the charge under section 302/149 of the Indian Penal Code, framed against appellants Kapil Singh, sidheshwar Singh, Mahendra Singh, Brijnandan Singh and Niranjan Singh was not found to have been proved and, therefore, they were acquitted of that charge by the court below. In that view of the matter, appellants Mahendra Singh, Kapil singh, Brijnandan Singh and Niranjan Singh are entitled to get the benefit of doubt, and their conviction for being members of an unlawful assembly, under section 148 or the Indian Penal Code against appellant Kapil Singh and under section 147 of the Code against the remaining three, is set aside. 14. As regards the case of appellant Batoran Singh, his conviction under section 302 of the Indian Penal Code is well-proved and is maintained. But his conviction under Sec.148 of the Code, in view of acquittal of four other accused persons, is set aside. Similarly, the conviction of appellant Sidheshwar singh under Sec.324 is upheld but his conviction under Sec.148 of the code, for the same reason, is set aside. The sentence of life imprisonment awarded to appellant Botoran Singh for his conviction under Sec.302 of the Indian penal Code is maintained and upheld. As regards the sentence of appellant sidheshwar Singh for his conviction under Sec.324 of the Code, it appears that he has remained in jail for about twenty days. The occurrence is alleged to have taken place in the year 1978, and this appeal is being disposed of in the year 1986. Taking into consideration all these facts, we think the period already undergone by him will meet the ends of justice. Accordingly, his sentence under Sec.324 of the Code is reduced to the period already undergone. 15. In the result, the appeal in regard to appellants Batoran Singh and sidhesbwar Singh is dismissed with the modification in their conviction and sentence, as indicated above, and the same, in respect of the other appellants, namely, mahendra Singh, Kapil Singh, Baijnandan Singh and Niranjan Singh, is allowed and the order of their conviction and sentence is set aside and they are discharged for their bail bonds. Appellant Batoran Singh is directed to surrender immediately to serve out the sentence. If he does not surrender the trying court will take all possible legal steps for his early apprehension. Appeal dismissed.