J. N. HORE, J. ( 1 ) ALL the seven appellants Mihir Mondal, Sunil Mondal, Samir Mondal. Ramkrishna Mondal, Sibu Dubey, Dipak Pal Choudhury and Sukumar Das-were arraigned before a learned Additional Sessions Judge, Burdwan to answer the following charges: That you along with others on or about the 20th May, 1981 corresponding to 6th Jaistha, 1388 B. S. Kanarkita, P. S. Burdwan, Dist. Burdwan were members of an unlawful assembly and did in prosecution of the common object of such assembly, viz, in murdering Badal Hazra Badal Chandra Hazra. Sb L. Kripa Sindhu Hazra and to attempt to commit murder to Kartick Ch. Hazra, Sadananda Hazra, Biswa Nath Hazra, all sons of L. Kripa Sindbu Hazra and to assault Arati Hazra, daughter of L. Kripa Sindhu Hazra, all of the same place, commit the offence of rioting and at that time were armed with deadly weapons to wit, lathi, tangi axe etc. and thereby committed an offence punishable under section 148 I. PC, and within my cognizance. Secondly: That you alongwith others on or about the same date and at the same place were members of an unlawful assembly and in prosecution of the common object of which viz, in murdering Badal Hazra Badal Ch. Hazra and attempted to commit murder to Kartick Ch. Hazra, Sadananda Hazea. Biswanath Hazra, all sons of Late Kripa Sindhu Hazra and to assault Arati Hazra, daughter of Late Kripa Sindhu Hazea all of the same place some of the members did commit murder by intentionally causing the death of said Badal Hazra Badal Chandra Hazra, which offence you knew it to be likely to be committed and you are thereby under section 149 of the I. P. C. guilty of causing the said murder to Badal Hazra Badal Ch. Hazra an offence punishable under section 302 I. P. C. and within my cognizance. Thirdly: That you along with others, were members of an unlawful assembly and in prosecution of the common object of which viz, murdering Badal Hazra Badal Ch. Hazra and attempt to commit murder to Kartick Ch. Hazra, Sadananda Hazra. Biswanath Hazra all sons of Late Kripa Sindhu Hazra and to assault Arati Hazra, daughter of Late Kripa Sindhu Hazra all of the same place some of your members did an acted wit, assaulted said Kartick Ch. Hazra and attempt to commit murder to Kartick Ch. Hazra, Sadananda Hazra. Biswanath Hazra all sons of Late Kripa Sindhu Hazra and to assault Arati Hazra, daughter of Late Kripa Sindhu Hazra all of the same place some of your members did an acted wit, assaulted said Kartick Ch. Hazra with such intention and under such circumstances that if by that act some of you had caused the death of said Kartick Ch. Hazra and they would have been guilty of murder and that some of you had caused hurt to said Kartick Ch. Hazra by the said act which offence you knew it to be likely to be committed and you are thereby under section 149 of the I. P. C. guilty of causing the said hurt to said Kartick Ch. Hazea, an offence punishable under section 307 I. P. C. and within my cognizance. Fourthly: That you alongwith others on or about the same date at the same place were members of an unlawful assembly and in prosecution of the common object of which viz, in murdering Badal Hazra Badal Ch. Hazra and attempted to commit murder to Kartick Ch. Hazra, Sadananda Hazra. Biswanath Hazra all sons of Late Kripa Sindhu Hazra and to assault Arati Hazra, daughter of Late Kripa Sindhu Hazra all of the same place some of your members did an act to wit, assaulted said Sadananda Hazra with such intention and under such circumstances that if by that act some of you had caused the death of said Sadananda Hazra, they would have been guilty of murder and that some of you had caused hurt to said Sadananda Hazra by the said act which offence you knew it to be likely to be- committed and you are thereby under section 149 of the I. P. C. guilty of causing the said hurt to said Sadananda Hazea an offence punishable under section 307 I. P. C. and within my cognizance. Fifthly: That you alongwith others on or about the same date and at the same place were members of an unlawful assembly and in prosecution of the common object of which viz, in murdering Badal Hazra Badal Ch. Hazra, and attempted to commit murder to Kartick Ch. Fifthly: That you alongwith others on or about the same date and at the same place were members of an unlawful assembly and in prosecution of the common object of which viz, in murdering Badal Hazra Badal Ch. Hazra, and attempted to commit murder to Kartick Ch. Hazra, Sadananda Hazra, Biswanath Hazra -all sons of Late Kripa Sindhu Hazra and to assault Arati Hazra daughter of Late Kripa Sindhu Hazra all of the same place, some of your members did at act to wit assaulted said Biswanath Hazra with such intention and under such instances that if by that act some of you had caused the death of said Sadananda Hazra, they would have been guilty of murder and that some of you had caused hurt to said Biswanath Hazra by the said act which offence you knew it to be likely to be committed and you are thereby under section 149 of the I. P. C. guilty of causing the said hurt to said Biswanath Hazra and offence punishable under section 307 I. P. C. Sixthly: That you alongwith others on or about the same date and at the same place were members of an unlawful assembly and in prosecution of the common object of which viz, in murdering Badal Hazra Badal Ch. Hazra and attempted to commit murder to Kartick Ch. Hazra, Sadananda Hazra, Biswanath Hazra ali sons of Late Kripa Sindhu Hazra all of the same place, some of your members voluntarily caused hurt to said Arati Hazra, which offence you knew it to be likely to be committed and you are thereby under section 149 of the I. P. C. guilty of voluntarily causing hurt to said Arati Hazra an offence punishable under section 323 I. P. C. and within my cognizance. T ( 2 ) ON conclusion of the trial, the learned Additional Sessions Judge found all the seven appellants guilty of the charge under sections 302/149, Indian Penal Code, convicted them there under and sentenced them each to imprisonment for life and fine of Rs. 5. 000/- in default to rigorous imprisonment for 5 years. They were also convicted under section 148, Indian Penal Code and were sentenced to rigorous imprisonment for 3 years each. They were further convicted under sections 324/149, Indian Penal Code for causing incised injury to Biswanath Hazra and sentenced to rigorous imprisonment for 1 year such. 5. 000/- in default to rigorous imprisonment for 5 years. They were also convicted under section 148, Indian Penal Code and were sentenced to rigorous imprisonment for 3 years each. They were further convicted under sections 324/149, Indian Penal Code for causing incised injury to Biswanath Hazra and sentenced to rigorous imprisonment for 1 year such. All of them were also convicted under sections 323/149, Indian Penal Code for causing simple hurt to Kartick Hazra Sadananda Hazra and Arati Hazra and sentenced to rigorous imprisonment for 1 year each. All the sentences under different counts were ordered to run concurrently. The appellants seek to assail the said order of conviction and sentence in this appeal. ( 3 ) THE prosecution case in a nutshell was that appellant Mihir Mondal abducted and married Minati, daughter of Ganesh Das, cousin of Badal Hazra (the deceased) against the will of her guardians and this created ill-feelings between the Hazras and the Mondals. Badal had a quarrel with Mihir and his brothers over the said marriage in the morning of May 20, 1981. ( 4 ) ON the same day at or about 8. 30 p. m. Badal Hazra (the deceased) and his brothers Kartick Hazra (P. W. 1 ). Biswanath Hazra (P. W. 4) and Sadananda Hazra (P. W. 5) were preparing for dinner when the appellants armed with tangi, axe and lathi stormed into the house of the Hazras and pounced upon Badal Hazra. Appellant Mihir struck Badal on the head with a tangi and Badal fell down on the ground. Other appellants then assaulted Badal with various weapons causing serious multiple Tinjuries. Kartick, Biswanath. Sadananda and their sister Arati (P. W. 2) also received injuries when they tried to intervene. Being attracted by the alarm raised by them, Premchand Das, Muktiram Das and other neighbours arrived at the spot and seeing them, the appellants fled away. ( 5 ) THE injured persons were removed to Burdwan Medical College Hospital where Badal was declared to be dead. The other injured persons were treated in the hospital. Kartick (P. W. 1) then went to Burdwan Police Station and lodged a written complaint on the basis of which S. I. Srikumar Hazra (P. W. 11) took up investigation. After completion of investigation, police submitted charge- sheet, which in usual course ended in committal of the case to the Court of Sessions. Kartick (P. W. 1) then went to Burdwan Police Station and lodged a written complaint on the basis of which S. I. Srikumar Hazra (P. W. 11) took up investigation. After completion of investigation, police submitted charge- sheet, which in usual course ended in committal of the case to the Court of Sessions. ( 6 ) ALL the appellants pleaded innocence. The defence case was that Badal was assaulted in the dark by a group of unidentified persons on the village path way outside the house of the Hazras and the appellants were falsely implicated out of enmity. ( 7 ) THE murder of Badal Hazra is not disputed before us and is amply borne out by the medical evidence. Dr. A. K. Gupta (P. W. 12), the then Reader and Head of the Department, Forensic and State Medicine, Burdwan Medical College, who conducted autopsy on the dead body of Badal Hazra found as many as 24 injuries including (a) one abraded contusion 3 x 2 incised with a little tapering at lower part placed obliquely on the back of the left side of the chest on the scapular line being placed 6 to the left of the mid-line with evidence of closed fracture of left 6th rib underlying correspondingly, (b) one abraded contusion 3 x 1 and 1 x 1 in line with each other with a gap of 21/2 showing evidence of contusion measuring 21/2 x 11/2 over left super scapular region and back of the left shoulder with evidence of closed fracture of left 4th rib-dislocation of the left shoulder joint under lying correspondingly along with evidence of laceration of left lungs by the fracture rib-ends, (c) lacerated wound 1/2x 1/2 muscle over right frontal region near hairy scalp with evidence of an underlying haematoma 10 x 6 over right frontal parietal region of the scapula along with a 6 long fissured fracture on the right side of the frontal bone as seen on dissection of the part; (d) haemtitoma 7 x 6 on both parietal occipital region with partial separation of lambdoid suture; (e) extensive subdural haemorrhages of brain and (f) fracture of right orbital plate, i. e. right side of anterior cranial fossa. In the opinion of the doctor the injuries were ante- mortem and homicidal in nature and the six injuries described above were individually and collectively sufficient to cause death in the ordinary course of nature. The nature, number and sites of the injuries leave no doubt that the injuries were inflicted with the intention to cause death. It is a case of gruesome murder perpetrated in the most cruel and in human manner. ( 8 ) THE next question, and the most crucial one, for our consideration is whether the appellants or anyone of them committed the said murder. ( 9 ) IN order to bring home the charges to the accused appellants, the prosecution examined 12 witnesses. Out of them, Kartick Ch. Hazra (P. W. 1), Arati Hazra (P. W. 2), Biswanath Hazra (P. W. 4) and Sadananda Hazra (P. W. 5) are the alleged eye-witnesses to the occurrence. Dr. P. G. Roy (P. W. 3), M. D. , Burdwan Hospital, examined the injuries sustained by PW5. 1, 2, 4 and S. Dr. A K. Gupta (P. W. 12) is the autopsy surgeon. The rest are police witnesses. ( 10 ) THE defence examined one witness Laksman Ch. Bhattacharyya (D. W. 1 ). Let us advert to the ocular evidence of the alleged eyewitness. The testimony of Kartick (P. W. 1) is that Mihir (appellant No. 1) abducted and married Minati, daughter of Ganesh Ch. Das, a cousin of the witness and over this incident the relation between the two families-the Hazras and the Mondals became very much strained. There was a quarrel between the female members of the two families in the morning of May 20, 1981 in which Badal took part. At or about 8. 30 p m. on the same day the witness and other members of the family were getting ready for dinner when the appellants and others armed with deadly weapons such as tangis, axes, lathis etc. forced entry into their house, caught hold of Badal and dragged him out of the house, Kartick and other members of his family followed them. Mihir dealt a blow on the head of Badal with a tangi and Badal fell down on the ground. The other appellants then pounced upon him and dealt blow at random with whatever weapons they had with them. Mihir dealt a blow on the head of Badal with a tangi and Badal fell down on the ground. The other appellants then pounced upon him and dealt blow at random with whatever weapons they had with them. Kartick and his two brothers Sadananda and Biswanath and sister Arati tried to save Badal but the appellants beat them up causing serious injuries to them. Being attracted by the alarm raised by them, neighbours rushed to the spot and seeing them, the appellants took to their heels. The witness then removed Badal, Sadananda, Biswanath and Arati to Burdwan Hospital where Badal was declared to be dead. The other injured persons received treatment in the hospital. The witness then went to Burdwan Police Station and lodged a written complaint. ( 11 ) WE get from his cross-examination that the dwelling house of the Hazras consists of two rooms in the ground floor and one in the first floor. There are boundary walls. There is a verandah in the ground floor. The kitchen is on the northern part of the homestead. The stretch of the courtyard in front of the verandah is about 50 cubits. On the eastern end of the courtyard there is a door for egress and ingress. There is a farmyard, which is fairly big. The cowshed in the farmyard is a distance of 50 cubits from the kitchen. Beyond the farm house is the shop of the Hazras comprising 4 rooms. To the adjacent east of the shop is the village pathway. A beaten track joins the main road of the village in front of the shop forming a crossing. A small lane also converges at that point. The house of the Mondal appellants is at a short distance from that crossing of roads. ( 12 ) ARATI Saha (P. W. 2), sister of Kartick, corroborates the testimony of Kartick. According to her, a few days before the incident Mihir abducted and married Minati as a result of which the relation between the two families-the Hazras and the Mondals-became strained. There was a quarrel in the morning of 6th Jaistha, 1388 B. S. between the members of the two families in which her Tmejdat Badal took part. According to her, a few days before the incident Mihir abducted and married Minati as a result of which the relation between the two families-the Hazras and the Mondals-became strained. There was a quarrel in the morning of 6th Jaistha, 1388 B. S. between the members of the two families in which her Tmejdat Badal took part. On that at or about 8 p. m. when they were getting ready for dinner the appellants caught hold of her brother Badal and dragged him out on the village pathway and beat him up at that place mercilessly. Mihir dealt a blow on the head of Badal with a tangi as a result of which Badal fell down on the ground and the other appellants then pounced upon him and started beating him with lathi, axe and pick-axe mercilessly at random. It was a moonlitt night and hurricane lanterns were burning in their house. The witness and her brothers were beaten by the appellants when they tried to rescue Badal. They raised alarm and the neighbours came to the place of occurrence and seeing them the appellants took to their heels. The injured persons were removed to the hospital where Badal was declared to be dead, Her Barda (P. W. 1) was released after first aid while her two other brothers were admitted in the hospital. In the cross-examination she has stated that 5/6 unknown persons were also in the unlawful assembly. ( 13 ) BISWANATH Hazra (P. W. 4) and Sadananda Hazra (P. W. 5) corroborate P. Ws land 2. According to Biswanath, however, Mihir dealt a blow on the head of Badal with a knife. According to both the witnesses die appellants were the only assai lance and there was no other person in their group. According to P. W. 4 Mihir dealt a blow on his bead with a tangi and Samir gave him a lathi blow. According to Sadananda (P. W. 5) Mihir assaulted him with the blunt side of the tangi and Samir gave him a lathi blow as a result of which he fell down on the ground and became unconscious. ( 14 ) LET us see the evidence of the four eyewitnesses is true and reliable. The First Information Report, is stated to have been lodged at 00. 45 hours on 21-5-81 i. e. about four hours after the occurrence. ( 14 ) LET us see the evidence of the four eyewitnesses is true and reliable. The First Information Report, is stated to have been lodged at 00. 45 hours on 21-5-81 i. e. about four hours after the occurrence. There are, however, cogent circumstances which show that the First Information Report is ante-time, if not ante-dated, and was in fact lodged much later than the stated hour and date. The First Information Report (Ext. 1/1) shows that informant Kartick (P. W. 1) went to the police station to lodge information after removing the injured persons to the hospital and making arrangement for their treatment. Kartick has also stated in his evidence that after treatment of the injured persons he went to Burdwan Police Station and lodged information. The evidence of P. W. 3 Dr. P. G. Ray, who examined the injured persons and the injury reports (Ext. 2 series) show that Biswanath was examined at 11. 40 P. M. on 20-5-81 and Arati, Sadananda and Kartick were examined on 21. 5-81 at 00. 20 A. M. , 1. 10 A. M. and 1. 50 A. M. respectively. Kartick could not, therefore, go to the police station and lodge information before 1. 50 A. M. Moreover, P. W. 11, the investigating officer has clearly stated in his cross-examination that names of the real assailants did not transpire even at the time of holding inquest. The inquest was held at 11. 30 A. M. on 21-5- 81. If that be so the First Information Report which contains the names of all the appellants as assailants was not inexistence till 11. 30 A. M. on 21-5-81. P. W. II held inquest on the body of the deceased in connection with Burdwan Police Station U. D. Case No. 177 of 1981. The specific police case stated on the basis of the First Information Report was not mentioned in the inquest, report. P. W. II left for village Kamarkita at 1. 07 A. M. on 21-5-81 and reached the village at 2. 45 A. M. and started investigation in presence of informant Kartick. He examined Narayan Paul and Premchand Das who claimed to be eyewitnesses to the occurrence and recorded their statements. He went to Burdwan hospital at 11. 00 A. M. on 2 1-5-81 and held inquest at 11. 07 A. M. on 21-5-81 and reached the village at 2. 45 A. M. and started investigation in presence of informant Kartick. He examined Narayan Paul and Premchand Das who claimed to be eyewitnesses to the occurrence and recorded their statements. He went to Burdwan hospital at 11. 00 A. M. on 2 1-5-81 and held inquest at 11. 30 A. M. Till then the names of the assailants did not transpire to him. This fact clearly suggests that the First Information Report is ante-time, if not ante-dated, embodying concoctions and embellishments. ( 15 ) ANOTHER serious informity in the prosecution case is that the case as sought to be made out at the trial differs in material respects regarding the manner and place of occurrence from that in the First Information Report. The case as made out in the First Information Report is that the appellants and others armed with various weapons stormed into the house of the Hazras, pounced upon Badal (the deceased) and assaulted him mercilessly with various weapons causing his death almost instantaneously P. Ws. 1, 2, 4 and 3 who tried to intervene were also beaten up by the assailants. The entire occurrence took place inside the house when the witnesses and the deceased were getting ready for dinner on the verandah in the ground floor. At the trial the place of occurrence was sought to be shifted to the pathway near the shop of he Hazras outside their house more than 100 cubits away from the building. According to all the eyewitnesses Badal was dragged all the way from the court-yard to the village pathway near the shop of the Hazras which took about four minutes and assaulted him on the village pathway. The witnesses were also assaulted on the village path way This story of dragging Badal out of the house was introduced and the place of occurrence was deliberately shifted at the time of trial as blood was found by P. W. 11 only on the path-way near the shop of the Hazras outside their house. Blood stained earth was seized by P W. 11 from that place. He did not find a drop of blood inside the homestead of the Hazras. Blood stained earth was seized by P W. 11 from that place. He did not find a drop of blood inside the homestead of the Hazras. It appears that the story of at rack and assault inside, the house was introduced in the First Information Report, which is ante dated and ante-timed in order to make recognition of the assailants in the light of the hurricane lantern possible. There was no source of light on the village path-way. According to D. W. 1, the occurrence took place on the village path-way outside the house of the Hazras and the assailants could not be recognised due to darkness. Now, finding it difficult to reconcile the story in the First Information Report with the finding of blood only on the village path-way, the witnesses have introduced the story of dragging nut Badal from the house and then assaulting him on the path-way. ( 16 ) ANOTHER serious infirmity is the total inconsistency between the testimony of the four eyewitnesses and the medical evidence. According to all the witnesses, the appellants were armed with sharp cutting weapons like tangi, axe and pick-axe as well as blunt weapon like lathi. According to P. Ws. 1, 2 and 5 appellant Mihir dealt a blow on the head of Badal with a tangi as a result of which Badal fell down on the ground. According to P. W. 4 Mihir gave a knife blow on the head of Badal and he fell down on the ground According to all the witnesses the appellants indiscriminately assaulted Badal with whatever weapons they had with them. If the evidence of these witnesses be true, there would be incised wounds on the head of Badalu and on other parts of the body but not a single incised wound was found on the head or other parts of the body of the deceased by P. W. 12 who held the post-mortem examination. There were contusions, haematoma, abrasions and fractures and internal haemorrhages. Following the decision of the Supreme Court in the case of Narain v. State of Punjab. There were contusions, haematoma, abrasions and fractures and internal haemorrhages. Following the decision of the Supreme Court in the case of Narain v. State of Punjab. The Supreme Court has held in a recent case, Amar Singh and others v. State of Punjab, that if the evidence of the witnesses for the prosecution is totally inconsistent with medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. There is no explanation for the apparent total inconsistency between the evidence of P. Ws. 1, 2, 4 and 5 and the medical evidence. P. W. 12 has no doubt stated that the injuries were caused with moderately heavy hard and blunt objects like lathi, handles of the weapons like axe or the blunt edges of heavy sharp cutting weapons like chopper, tangi etc. But none of the eyewitnesses has stated that Mihir gave a blow on the head of the deceased with the blunt side of the tangi and that the other appellants who were armed with sharp cutting weapons like tangi, axe and pick-axe assaulted him with the blunt side of the weapons. This would also be highly improbable. The appellants and others armed with various sharp cutting weapons came and assaulted the deceased with the avowed object of killing him and it is unbelievable that they would use only the blunt side of the sharp cutting weapons. There is careful non-satisfactory explanation for this vital inconsistency between the evidence of the eye witnesses and the medical evidence. ( 17 ) THERE is inherent improbability in the story of the eyewitnesses regarding the manner of occurrence. All the members of the family including three able-bodied brothers of the deceased (P. Ws. 1, 3 and 5) followed the assailants who were forcibly dragging Badal out of the house in a mute procession. According to P. W. 1, the assailants did not attack any other memo her of the family. They caught hold of Badal and were forcibly dragging him out of the house. P. W. 1 and other members of the family did not resist them and just followed them. They did not even shout for help. According to P. W. 1, the assailants did not attack any other memo her of the family. They caught hold of Badal and were forcibly dragging him out of the house. P. W. 1 and other members of the family did not resist them and just followed them. They did not even shout for help. P. W. 2 has stated in the cross-examination that they did not raise any alarm when the assailants stormed into the house While Badal was being forcibly dragged away, her other brothers (P. W s. 1, 4 and 5) did not do any overt act to save him and just followed them. P. W. 4 has also stated in his cross-examination that when the assailants caught hold of his elder brother Badal they did not do any overt act to release him from their clutches till he was taken out of the house. According to him, it took about four minutes abduct Badal. According to P. W. 5, the assailants did not wield any weapon while they were inside the dwelling house. Though the witness and his brothers realized the imminent danger to the life of Badal, they did not bring out any weapon from their house to resist the assailants. They did not even raise any alarm. The entire story appears to us to be highly improbable. During the long four minutes when Badal was being forcibly dragged out, none made any effort whatsoever to save Badal. All the members of the family followed the assailants in a mute procession. They did not even shout for help. They preferred to intervene and received injuries only when Badal was dragged out on the village path-way outside their house and not before that. ( 18 ) THE assailants who came armed with deadly weapons with the avowed object of killing Badal did not prefer to deal even a single blow on him inside the dwelling house and waited for long four minutes for the murderous assaults till Badal was brought to the path-way. At least Badal was frantically shouting for help all the time as the evidence discloses. But even the close door neighbours chose not to respond to the alarm till he was dragged out and brought on the pathway. At least Badal was frantically shouting for help all the time as the evidence discloses. But even the close door neighbours chose not to respond to the alarm till he was dragged out and brought on the pathway. The story that the assailants stormed into the dwelling house of the Hazras and forcibly dragged Badal out of the house on the path-way is unbelievable. The defence case that Badal was attacked and assaulted on the path-way near the shop of the Hazras in the dark and being attracted by the alarm raised by him. P. Ws. 1, 2, 4 and 5 rushed there and in their bid to rescue Badal sustained injuries at the bands of the assailants appears to be more probable. The story of forcible abduction of Badal from the dwelling house seems to have been introduced by the prosecution in order to make recognition possible. ( 19 ) THERE is admitted enmity between the eye-witnesses and the Mondal appellants and the eye witnesses are interested in falsely implicating the appellants. A striking feature of the case is that none of the disinterested and independent neighbours has been examined. It is stated in the First Information Report that being attracted by the alarm raised by the inmates, Premchand Das and Muktiram Das and many others villagers came and seeing them the assailants ran away. P. W. 1 has also stated in his evidence that being attracted by the hue and cry raised by them a good number of villagers including Muktiram Das and Premchand9 Das rushed to their house. According to P W. 2 also many neighbours came to the place of occurrence being attracted by the alarm raised by the witnesses and seeing them the assailants took to their heels. P. W. 11 examined Narayan Pal and Premchand Das and recorded their statements. According to him. both of them Claimed to have witnessed the occurrence. It is clear therefore, that at least Narayan Pal, Premchand Das and Muktiram Das are material witnesses As held by the Supreme Court in Narain and others v. State of Punjab, A. I R. 1959 5 C. 484, the test whether a witness is material is not whether he would have given evidence in support of the defence. The test is, whether he is a witness essential to the unfolding of the narrative on which the prosecution is based. The test is, whether he is a witness essential to the unfolding of the narrative on which the prosecution is based. Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. There cannot be any doubt that Narayan Pal, Premchand Das and Muktiram Das were material witnesses in this case but none of them was examined. ( 20 ) IT is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. But as laid down by the Supreme Court in Bir Singh and others v. State of Uttar Pradesh, this rule docs not apply where the evidence of the eye-witnesses suffers from various infirmities and could be relied upon only it properly corroborated. As seen already, all the four eyewitnesses examined by the prosecution in this case have not only serious animus against the appellants but also their evidence suffers from several serious infirmities. It was, therefore, the duty of the prosecution to examine disinterested and independent witness for corroborating the testimony of the eyewitnesses. ( 21 ) IN Narain's case (supra) the Supreme Court has laid down that it is not that the prosecution is bound to call all the witnesses who may have seen the occurrence and so duplicate the evidence but apart from this, the prosecution should call all the material witnesses and if a material witness has been deliberately or unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge. In Bir Singhs case (supra) the Supreme Court held that where all the eye-witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witnesses were examined nor any reasonable explanation was given by the prosecution, the court would be justified in drawing an adverse inference against the prosecution. In the instant case only those eyewitnesses who had enmity with the accused- appellants and were interested in implicating them were examined leaving out disinterested and independent material witnesses such as Premchand Das, Muktiram Das and Narayan Pal. In the instant case only those eyewitnesses who had enmity with the accused- appellants and were interested in implicating them were examined leaving out disinterested and independent material witnesses such as Premchand Das, Muktiram Das and Narayan Pal. The explanation offered by the prosecution appears to be unsatisfactory. An application was filed alleging that these witnesses bad been gained over. That allegation too was based on the report of the complainant who was interested in implicating the appellants. As held by the Supreme Court in The State of U. P. and another v. Jaggo alias Jagdish and other,4 the mere presentation of an application by the prosecution that a certain witness had been won over is not conclusive of the allegation. In such a case the witness can be produced for cross-examination by the accused, which would elicit correct facts. We are, therefore, of the opinion that these material witnesses were deliberately and unfairly kept back and an adverse presumption may be legitimately drawn against the prosecution. ( 22 ) FOR the aforesaid reasons, the testimony of P. Ws. 1, 2, 4 and 5 appears to us to be utterly unreliable. The prosecution has failed to bring home the charges to the accused appellants beyond reasonable doubt and their convictions by the lower court are unsustainable. ( 23 ) IN the result, we allow the appeal and set aside the order of conviction and sentence on all counts. All the appellants be forthwith set at liberty if not wanted in connection with any other case. Appeal allowed.