JUDGMENT Ram Naresh Thakur, J. 1. Both these appeals arise out of the same judgment. Therefore, with the consent of the parties and for their convenience, they have been heard together and are being disposed of by this common judgment. 2. Appellants Ramsabad Choudhary, Subansh Choudhary, Ramakant Choudhary and Suresh Choudhary of Criminal Appeal No. 117 of 1984 and Yogendra Choudhary of Criminal Appeal No. 191 of 1984 and have been found guilty for an offence under section 302/34 of the Indian Penal Code; shortly put as the Code hereafter, and each of them has been sentenced to undergo rigorous imprisonment for life. Appellants Suresh Choudhary and Yogendra Choudhary have been further convicted under section 148 of the Code and each of them has been sentenced to undergo rigorous imprisonment for one year for this offence. Appellant Suresh Choudhary has further been convicted for an offence under section 324 of Code and has been sentenced to suffer rigorous imprisonment for one year under this count as well. Appellants Ramsabad Choudhary, Subansh Choudhary and Ramakant Choudhary have further been convicted under sections 147 and 323/34 of the Code and each of them has been sentenced to undergo rigorous imprisonment for six months under each count. All the sentences awarded to the appellants have been directed to run concurrently. 3. The prosecution case, leading to these appeals, is that on 19th July, 1982, at about 6.30 A.M. the deceased Ramadhar Thakur was getting his landsirrigated for trans-planting paddy in his field from a canal water. All these appellants came there armed with lathi and bhala. Appellants Suresh Choudbary and Yogendra Choudbary were armed with bhala and the rest of the appellants were armed with lathi. They asked deceased Ramadhar Thakur not to irrigate his land because at first instance they (the appellants) would irrigate their own land. This led to exchange of hot words. Then, on being ordered by appellant Ramsabad, appellant Subansh, Ramakant and Ramsabad assaulted Ramadhar Thakur with lathi and appellant Yogendra gave a bhala blow on the right side of his chest as a result of which he fell down in the adjacent filed belonging to Binda Thakur"(P.W. 5) and died. It is said that Sunil Kumar Thakur (P.W. 2), Binod Thakur (P.W. 3) and Nawal Kishore Thakur (P.W. 4) came there and wanted to save the deceased but they were also assaulted. It is said that Sunil Kumar Thakur (P.W. 2), Binod Thakur (P.W. 3) and Nawal Kishore Thakur (P.W. 4) came there and wanted to save the deceased but they were also assaulted. The informant Ramnath Thakur (P.W. 1) was there and he also protested against the highhandedness of the appellants on which he was also assaulted by appellant Suresh with bhala. After the assault, the appellants took to their heels. Thereafter the injured persons were brought to Motipur hospital for treatment. 4. P.W. 13 Bishwanath Sharma was at the relevant time the officer incharge of Motipur police station. On 19th July, 1982, at about 9 A.M. he (P.W. 13) received an O.D. slip from Motipur State Dispensary on the basis of which he went to the said dispensary at 9.15 A. M. and recorded the fardbeyan or the injured P.W. 1 Ramnath Thakur which is Exhibit 1. On the basis of Exhibit 1, a formal first information report was drawn up and a case was registered. P.W. 13 started investigating the case and on being transferred, he handed over charge of the investigation to P.W. 12 who submitted chargesheet against these appellants. 5. Ultimately, these appellants were put on trial where 14 witnesses were examined on behalf of the prosecution. The appellants pleaded their innocence. Appellant Subansh Choudhary in his statement under section 313 of the Code of Criminal Procedure, has stated that survey plot no. 2221 belonged to him. He wanted to irrigate his aforesaid land but the deceased Ramadhar Thakur and his family members came and obstructed this appellant. They also assaulted him and his son Ramsabad Chaudhary. Villagers came and then they saved them. It is his further case that the assault did not take place in the field of Binda Thakur as alleged by the prosecution. Three witnesses were also examined on their behalf. After considering the entire evidence, the learned trying court convicted the appellants as stated above. 6. Learned counsel appearing for the appellants has mainly argued that the learned trying court did not take into consideration the injuries found on appellants Subansh and Ramsabad. According to him the prosecution suffers from infirmities as it failed to explain the injuries found on the person of the aforesaid two appellants. 6. Learned counsel appearing for the appellants has mainly argued that the learned trying court did not take into consideration the injuries found on appellants Subansh and Ramsabad. According to him the prosecution suffers from infirmities as it failed to explain the injuries found on the person of the aforesaid two appellants. Lastly, it has been argued that no independent witnesses has been examined and therefore, no reliance should be placed on the evidence of the witnesses examined on behalf of the prosecution who are all interested witness and they came after the occurrence. After hearing the arguments advanced from both sides. I have also perused the entire evidence adduced on behalf of both parties. 7. Out of the 14 witnesses examined on behalf of the prosecution, P.W. 1 is the informant himself, P.W. 2 Sunil Kumar Thakur, P.W. 3 Binod Thakur and P.W. 4 Nawal Kishore Thakur, are sons of the deceased, and P.W. 5 is Binda Thakur in whose field the dead body of the deceased was found. P.W. 6 Upendra Thakur has been tendered. P.W. 7 is Angad Bhagat and be claims to be a labourer of deceased. P.W. 8 Raj Mangal Thakur was also tendered. P.W. is the doctor who had examined Sunil Kumar (P.W. 2), Binod Thakur (P.W. 3), Nawal Kishore (P.W.5) and Ramnath Thakur (P.W. 1) on 19th July, 1982. P.W. 10 is another doctor, attached to Sri Krishna Medical Collage Hospital, who conducted the post-mortem examination on the body of the deceased. P.W. 11 is yet another doctor who bad also examined P.W. 1 Ramnath Thakur when he was referred from Motipur State Dispensary to Sri Krishna Medical College Hospital. P.W. 12 is the Sub Inspector of Police who simply submitted chargesheet in the case and P.W. 13 is the investigating officer. P.W. 14 happens to be a formal witness inasmuch as he has proved an informatory petition. Thus, out of the fourteen Witnesses. P.Ws. 1, 2, 3, 4, 5 and 7 are eye witnesses of the occurrence and out of them P.Ws. 1, 2, 3, and 4 had also received. injuries. All the aforesaid eye witnesses have spoken consistently about the prosecution case, as stated above. 8. P.W. 1 was returning after attending the call of nature when he saw the altercation and the occurrence. 1, 2, 3, and 4 had also received. injuries. All the aforesaid eye witnesses have spoken consistently about the prosecution case, as stated above. 8. P.W. 1 was returning after attending the call of nature when he saw the altercation and the occurrence. According to him, appellants Ramsabad, Subansh and Ramakant assaulted Ramadhar, the deceased, with lathi and appellant Yogendra gave him a bhala blow on the right side of his chest. He (P.W. 1) was assaulted by appellant Suresh with bhala on his head, buttock and on the side of the abdomen. When, on his hulla, his nephews Sunil (P.W. 2), Binod (P.W. 3) and Nawal Kishore (P.W. 4) came, they were also assaulted. He has stated in his evidence that his injuries were serious and so he was referred to Shri Krishna Medical College Hospital, Muzaffarpur, from Motipur State Dispensary and he remained there in the hospital for twelve days. It has further come in his evidence that in the south of the field of Binda Thakur (P.W. 5) is a channel and towards further south is his survey plot no. 2200 and in the south of survey plot no. 2200. is survey plot no. 2225 which also belongs to him. In the south of survey plot no.2225 is survey plot no. 2229 which belongs to appellant Subansh Choudhary. After making some opening in the channel, survey plot nos.2200 and 2225 are irrigated. This channel originates from the main canal. Survey plot no. 2225 was irrigated one day before the occurrence and paddy crop had been transplanted. Therein P. W. 2 Sunil Kumar Thakur has named the assailants of his father, as stated by P.W. 1. He has also stated that P.W. 1 was assaulted by appellant Suresh with Bhala, P.W. 4 Nawal Kishore was also assaulted by appellant Suresh with bhala and he himself (P.W. 2) was assaulted by Suresh with bhala which struck just below his right eye. According to him, the marpit took place in the field of Binda Thakur (P.W. 5). 9. P.W. 3 Binod Thakur has also spoken about the assault on the deceased, on P.W. 1 Ramanth Thakur and on his brothers. He has also named the assailants of the deceased, his uncle (P.W. 1) and his brothers. He has also named appellant Subansh Choudhary who assaulted him (P.W. 3) with lathi. 9. P.W. 3 Binod Thakur has also spoken about the assault on the deceased, on P.W. 1 Ramanth Thakur and on his brothers. He has also named the assailants of the deceased, his uncle (P.W. 1) and his brothers. He has also named appellant Subansh Choudhary who assaulted him (P.W. 3) with lathi. It has come in his evidence that his house is at a distance of 100 yards from the field of Binda Thakur where the deceased died. P.W. 4 Nawal Kishore has also corroborated the statements of the aforesaid witnesses with all details. He has named appellant Suresh Choudhary as his assailant with bhala. 10. P.W. 5 is the man in whose field the dead body of the deceased was found by the investigating officer and, according to the prosecution, it was in his field that the. deceased received injuries and died. According to him, at the time of occurrence he along with his Son Raj Mangal (P.W. 8) and his nephew Upendra Thakur. (P.W. 6) was arranging his field to irrigate. His field is in the north of the field of Ramadhar Thakur (the deceased) intervened by a channel and from there he saw the occurrence. He has corroborated the evidence of the aforesaid witnesses as regards the assault is concerned. He has stated that Ramadhar was assaulted in his field where he fell down and died. He has also named the assailants of the deceased as well as of the injured. According to him, Ramadhar Thakur was originally a resident of Mirzapur and be inherited the property of one Dhannu Thakur of his village. P.W. 7 claims to be the labourer of Ramadhar Thakur and he had come for transplanting paddy when he saw the occurrence. He has also fully corroborated the evidence of other witnesses as stated above, on the point of assault. These witnesses have been cross-examined at length but they have stood the test of cross-examination successfully. It may be pointed out that the witnesses have been named in the first information report. P.Ws. 1, 2, 3 and 4 were also injured in course or the occurrence and therefore, their presence cannot be doubted. In this background their evidence cannot be brushed aside simply because they are interested witnesses. As stated earlier, the house of the deceased is at a distance of 100 yards only from the place of occurrence. 11. P.Ws. 1, 2, 3 and 4 were also injured in course or the occurrence and therefore, their presence cannot be doubted. In this background their evidence cannot be brushed aside simply because they are interested witnesses. As stated earlier, the house of the deceased is at a distance of 100 yards only from the place of occurrence. 11. The evidence of P.Ws. 1, 2, 3 and 4 is corroborated by the medical evidence of P.Ws. 9 and 11. P.W. 9 is the doctor attached to Motipur State Dispensary. On 19th July, 1982, at about 8.30 A.M. he had examined Sunil Kumar Thakur (P.W. 2), Binod Thakur (P.W. 3), Nawal Kishore Thakur (P.W. 4) and Ram Nath Thakur (P.W. 1) and found the following injuries on their persons :- "Sunil Kumar Thakur :- Penetrating wound on the right side of face near nose of size 1/4" x 1/2" x 1/4" inflicted with sharp pointed weapon, may be bhala. Binod Thakur :- Ecchymosis on the outer side and front of right fore-arm in the upper third portion of size 3" x 2’. inflicted with hard blunt object, may be lathi. Nawal Kishore Thakur :- Penetrating, injury on the middle of forehead of size 1/2" x 2/3" ~ 1/4" inflicted with sharp pointed weapon, may be bhala. Ram Nath Thakur :-(i) Incised wound on right half of scalp anteriorily of size 1/2" x 1" x 1/4". (ii) Incised wound on right upper blutial region (hip) of size 2” x 1" x 1/4". (iii) Incised wound on right lumber region 4" above the eliac crest of size 1" x 1/2" x 1/4". (iv) Soft fluctuant swelling (Ecchymosis) above left pettela (knee cap) of size 11/2" x 1". (v) Ecchymosis on left ankle joint of size 1/2" x 1/2". P.W. 1 Ram Nath Thakur was also examined by P.W. 11 who was posted at Sri Krishna Medical College Hospital, Muzaffarpur, as surgeon on duty. He had examined P.W.1 on 19th July, 1982, at 10 A.M. and found the following injuries on his person :- "(i) Stitched wound 1 1/2" long on right half of scalp. (ii) Stitched wound 2" long on right upper glutial region. (iii) Stitched wound 1" long on right lumber region 4" above the eliac crest : (iv) Soft fluctuant swelling above left pattila 2" x 1". (v) Swelling of left ankle joint". 12. P.W. 10 Dr. (ii) Stitched wound 2" long on right upper glutial region. (iii) Stitched wound 1" long on right lumber region 4" above the eliac crest : (iv) Soft fluctuant swelling above left pattila 2" x 1". (v) Swelling of left ankle joint". 12. P.W. 10 Dr. Manoranjan Kumar Srivastava conducted the postmortem examination on the dead body of the deceased on 20th July, 1982, at 8 A.M. (wrongly written as 19.7.82 in the deposition, which is evident from the post-mortem report, Exhibit 4) and found the following ante-mortem injuries :- "(i) -Bruise with swelling 6" x 1/2" on right scapular region. (ii) Bruise with swelling 4” x 1/4" on left scapular region. (iii) Bruise with swelling 3" x 1/2" on right leg front. (iv) Bruise with swelling 4" x I /4" on back of left leg. (v) Bruise with swelling 3" x 1/2" on right parietal bone, on dissection, on opening of the vault of the skull there was subdural haemotoma 1/2" x 1/2" found on the right lob of the brain. (vi) Incised and punctured' wound 2 1/2" x 1/2" lungdeep on right side of the chest just above right nipple. On dissection, the tract of the wound has been traced. It had punctured the lung and after piercing it, it has penetrated muscles, blood vessels and trachea also." Thus, it is abundantly clear that the medical evidence lends full support to the oral evidence of the prosecution witnesses. 13. The occurrence is alleged to have taken place at 5.30 A.M. on 19th July, 1982, and P. Ws. 1, 2, 3 and 4 who were injured in course of the occurrence, were examined within three hours of the occurrence by the medical officer. The fardbeyan was also recorded without losing much time. These facts also fully corroborate the prosecution version. 14. Besides the aforesaid facts, P.W. 13, the investigating officer, also found the injured persons in Motipur State Dispensary where he recorded the fardbeyan of Ram Nath Thakur (P.W.1). He also found injuries on the persons of P.Ws. 1, 2, 3 and 4 and prepared their injury reports. P.W. 13 found copious blood in the field of P.W. 5. All these objective findings or the investigating officer also lend support to the prosecution story. 15. He also found injuries on the persons of P.Ws. 1, 2, 3 and 4 and prepared their injury reports. P.W. 13 found copious blood in the field of P.W. 5. All these objective findings or the investigating officer also lend support to the prosecution story. 15. Appellant Subansh Choudhary has stated in his statement under section 313 of the Code of Criminal Procedure that Ramadhar Thakur and his family members assaulted them appellants) and then villagers came and quarrelled with the prosecution party. There was no marpit in the field of Binda Thakur. But no villager has come to say anything on this point. The investigating officer (P.W.13) found blood only in the field of Binda Thakur. The objective findings of P.W. 13 do not lend support to the defence version. 16. According to the fardbeyan, all prosecution witnesses came on hulla. Therefore, according to learned counsel for the appellants none of the witnesses saw the occurrence. This contention of the learned counsel for the appellants looks attractive, but really has no substance. It is clearly mentioned in the fardbeyan that "Sunil Thakur, Nawal Thakur, Binod Thakur halla par aagaye the, unlogon ko bhi upar likhaye mudalahum lathi bhala se mare...Halla par gaon ke Binda Thakur, Sheo Narayan Thakur, Lakshmi Choudhary. Ram Prasad Choudhary, Dhudhu Raut, Angad Bhagat, Dahaur Bhagat, Upendra Thakur aaye." It has come in the evidence of P.W. 3 that his house is at a distance of 100 yards from the field of Binda Thakur. Therefore, the place of occurrence is not far off from the house of the deceased. There is nothing to show that when witnesses were coming on hulla they could not have seen the occurrence while coming. 17. Of course, Dr. Yogendra Prasad, has been examined on behalf of the appellants as D.W. 1 to say that on 19th July, 1982, when he was posted as Deputy. Superintendent of Sadar hospital, he had examined appellants Ramsabad Choudhary and Subansh Choudhary at 1.30 P.M. and found the following injuries on their persons :- "Ramsabad' Choudhary :- (i) " Incised wound 2 3/4" x 1/4" x scalp deep on right side of middle of hand. (ii) lacerated wound 1"x 1/4" x skin deep on left side of head. (iii) lacerated wound 1/2" x ¼” x skin deep on the front of head in middle. (ii) lacerated wound 1"x 1/4" x skin deep on left side of head. (iii) lacerated wound 1/2" x ¼” x skin deep on the front of head in middle. (iv) Bruise with swelling 3/4"x 1/4" on the left wrist back on little finger side. (v) Abrasion 1" x 1/4" on the back of left fore-arm. (vi) Bruise with swelling 2" x 1/4" on the left side of back of chest (upper part). Subansh Choudhary :-(i) Incised wound 2" x 1/4" x scalp deep on the right side of fore-head near hair margin. (ii) Bruise with swelling 2 ¼” x 1/2" on the left side of back of chest. (iii) Tenderness on the right side of front of chest near nipple." The age of the injuries was approximately within six hours. In cross-examination this doctor has said that there was no paper before him to show that he had treated the injured persons. All injuries except injury no. 1 on scalp of both the injured were superficial in nature. According to this witness even those incised injuries could be manufactured if a person takes severe risk. He had examined both the injured at his residence, and he had no occasion to see them again. He did not inform the police. He has admitted that he does not inform the police in case of simple incised injury though he has read Medical Jurisprudence by Modi. In the end he had to admit that he did not consider any seriousness of the injuries and so he did not inform the police. Thus, in the opinion of D.W.1 himself the injuries were not at all serious. 17. D.W. 3 is an advocate. He has come to say that on 19th July, 1982, Ramsabad and Subansh came in injured condition to him. Ramsabad asked him to prepare a petition of complaint and on his dictation he drafted a petition of complaint which is Exhibit B. As the court hour for filing a petition of complaint had ended, the complaint could not be filed and the complainant could not be examined on solemn affirmation on that day. In cross-examination this witness has said that after filing Exhibit B, he did not do any work in that case. He has further said that Ramsabad and Subansh did not come to court to give their evidence. In cross-examination this witness has said that after filing Exhibit B, he did not do any work in that case. He has further said that Ramsabad and Subansh did not come to court to give their evidence. He did not remember whether any petition was filed in court of the Sub-divisional Judicial Magistrate that since the injury report had not been obtained the complainant should be examined on solemn affirmation on the next day. In paragraph 3 he has said that on 19th July, 1982, he had advised Ramsabad that he should give his statement on solemn affirmation but in spite of his advice he did not appear in the court nor was he examined on solemn affirmation. Thus, from the evidence of D.W. 3 itself it would appear that Ramsabad did not appear before the court for being examined on solemn affirmation for reasons best known to him. From this conduct of appellant Ramsabad it is clear that perhaps he had no courage to appear before the court as there was no injury on his person. As stated above, no witness has been examined on behalf of the defence to say as to how, where and when these two appellants received injuries though defence witnesses have been examined on their behalf. I am conscious of the fact that in a criminal trial, accused persons are not called upon to examine any witness or to prove his own case but when a specific case is put forward before the court by the accused persons and witnesses are examined on their behalf, it is expected in normal course that some witnesses should come to say as to how, where and when the accused persons received injuries. But this has not been done in the present case. 18. The evidence of D.W. 2 is that on 19th July, 1982, he was at his house and at about 6.30 A.M. when he came to his darwaja he found Ramadhar Thakur in unconscious condition some persons asked him to examine Ramadhar but he refused to examine him seeing his condition and he asked to take him to Government hospital. When the persons. who had brought Ramadhar Thakur were arranging conveyance, Ramadhar Thakur died in the meantime and, thereafter, he (D.W.2) went with Ramnath to Motipur for his treatment. Therefore, according to the evidence of D.W. 2 also, Ramnath was injured. When the persons. who had brought Ramadhar Thakur were arranging conveyance, Ramadhar Thakur died in the meantime and, thereafter, he (D.W.2) went with Ramnath to Motipur for his treatment. Therefore, according to the evidence of D.W. 2 also, Ramnath was injured. He was a school teacher on that day but he has said that he has passed the examination of Dresser also. Ramnath had reached Motipur hospital at about 8 30 A.M. The evidence of this witness also does not inspire confidence. He did not meet the investigating officer in Course of investigation. He never disclosed the facts which he stated in court to any body. 19. After considering the evidence of D.Ws. 1 and 3 it becomes very doubtful whether appellants Subansh and Ramsabad had any injury on their persons muchless any serious injury. There is nothing on the record to show that they received any injury in course of the present occurrence or in the same transaction. In that view of the matter the prosecution, in no way, was obliged to explain their injuries and therefore, it cannot tell upon the prosecution case. 20. There is consistent evidence that all the appellants came together fully armed. They all took pan in the assault. From the evidence, it is well-established that all the appellants had common intention to kill Ramadhar Thakur and they had also the common object to commit rioting. 21. After giving my anxious thought over the entire evidence on the record, I find and hold that the charges leveled against the appellants have been fully established beyond all reasonable doubt and, therefore, the order of conviction as well as the sentences passed against them does not require any interference. Accordingly, both the appeals fail and are dismissed. I agree.