JUDGMENT S.B. Sinha, J. This criminal appeal arises out of a judgment of conviction and sentence dated 8th February, 1988 passed by Sri Krishan Chandra prasad 5th Additional Sessions Judge, palamau, Daltonganj, in Sessions Trial No 170 of 1984, whereby and whereunder the said learned court held the appellants' guilty under Sections 302, 149 and 148 of the Indian penal Code Bad sentenced them to undergo rigerous imprisonment for life under Section 302/149 of the Indian Penal Code but no separate sentenced was passed under Section 148 of the Indian Penal Code. 2. One Basudeo prajapati (PW 2) gave a fard beyan (Ext.1) at the Daltongan hospital before Deochand Singh, A.S.I, of Lesliganj Police Station on 25.8.1983 at about 5 A.M alleging therein that on that date at about 12 noon, the deceased Ram Lakhan Prajapati (nephew of the informat had been going towards the Devi Mandap for grazing his buffalos. 3. It was alleged that when the deceased reached near the Devi Mandap, the accused Kausikya Devi (since deceased) raised alarm and called her father, brothers and husband to the effect that the deceased had been passing and he should be killed; whereupon Krit Mahto, Bhagwan Mahto and Sarju Mahto Carrying Garasa in their hands and Bhagwan Mahto and son in law of Bina Mahto of Barsatia (Amerika Mahto) carrying Barchha and accused Bina Mahto (since deceased) carrying Lathi came there running and started assaulting the deceased, as a result whereof, he sustained injuries on his person and fell down. 4. It was further alleged that the informant had reached the P.O. on hearing hullah raised by accused Kausilya Devi and saw the entire occurrence. 5. It was further alleged that the entire occurrence was also witnessed by the wife of Dukhan Bhuian namely, Rajkumari Devi (PW 1) and wife of Bindeshwar Kahar namely. Bhuneshwari Devi (PW4) who came there on hearing alarm raised by the informant. 6. It is alleged that there after the accused persons flew away. Prabhuwan Mahto (PW11) come there and he called his labourers Bhuian Sahdeo Dhuian, Chulhan, Bhuian and Rambrichh Bhuian and with their help the deceaed was brought to the Lesliganj Police Station where he after a little while died. 7. 6. It is alleged that there after the accused persons flew away. Prabhuwan Mahto (PW11) come there and he called his labourers Bhuian Sahdeo Dhuian, Chulhan, Bhuian and Rambrichh Bhuian and with their help the deceaed was brought to the Lesliganj Police Station where he after a little while died. 7. The motive of the aforementioned incident is said to be that the deceased had given water to PM 11 from his boring for irrigating his field, although, the accused persons had asked him not to do so. 8. As noticed hereinbefore, during the pendency of the trial, Bina Mahto died, 9. The defence of the appellants was that the men of PW 11 had killed Sukhan Bhuian on the day of occurrence namely, 25.8.1983 and al a relatiatory measure the men of the aforementioned Sukhan Bhuian killed Ram lakhan Prajapati who was a men of PW 11 on that very date. In support of this stand, the certified cory of the judgment of Sessions Trial No. 43 of 1984 was produced on behalf of the appellants which was marked as Ext. A 10. The defence case further was that the appellants had land dispute with Prabhuwan Mahto and a, such, the informant has implicated then at his instance. 11. In support of its case, the presecution has in all examined 11 witnesses. PW 1, Rajkumari Kuer, is wife of Dukhan Bhuian. PW 4 is Bhuneshwari Devi and PW 7, Kulmati Devi is wife of PW 2. These witnesses besides the informant PW 2 are said to be eye witnesses of the occurrence. 12. PW 9 is Dr, Jawaher Lal who conducted the postmortem examination, on the dead body of Ram Lakhan Prajapati. The said postmortem report was marked as Ext. 2. 13. PW 10 is. Dr. Awadh Kiahore Upadhya who bad examined Fulmati Devi, PW 7 and the said injury report was marked is Ext 3. 14. PW 11 is a formal witness, PW 3, Manmati Devi. PW 5 Brinda Devi (wife of the deceased) and PW 8, Karan Bhuian were tendered. PW 8, Karan Bhuian is raid to be cousin of Sakun Bhuian who illegally was murdered by the men of Prabhuwan Mahto. 15. Mr. P.S, Dayal, the learned counsel appearing on behalf of the appellant, firstly, submitted that PW, 1, 2, 4 and 7 have contradicted themselves with regard to their presence. 16. PW 8, Karan Bhuian is raid to be cousin of Sakun Bhuian who illegally was murdered by the men of Prabhuwan Mahto. 15. Mr. P.S, Dayal, the learned counsel appearing on behalf of the appellant, firstly, submitted that PW, 1, 2, 4 and 7 have contradicted themselves with regard to their presence. 16. It was further submitted that although, allegations have been made in the first information report that the deceased was assaulted indiscriminately but from a perusal of the post mortem report, it would appear that the doctor found only 5 injuries on the person of the deceased, out of which three were caused by sharp cutting weapons and two by bard and blunt substance. 17. The learned counsel further submitting that in this case the investigation officer was not examined, as a result whereof, the appellants have greatly been prejudiced. 18. It was further submitted that appellants have been falsely implicated as they were admittedly on litigating term, It was further submitted that the prosecution had not been able to prove the motive alleged in the first information report. The learned counsel further submitted that even the prosecution witness admitted that the land in dispute belonged to appellants, 19. The learned trial court upon analysis of the evidence of the prosecution witnesses, passed an order of conviction and sentence as against the appellants but recorded a judgment of acquittal in favour of Kausalya Devi, giving her benefit of doubt about her participation in the assault of the deceased. 20. PW 2, Basudeo prajpaati, the informant in this case, stated that while the deceased had been going to graze his buffalo and reached near the Devi Mandap, Kausalya Devi raised alarm and called his father, brother and husband and asked them to assault the deceased; where upon Krit Mahto, Bhagwan Mahto and Sarju Mahto come with Garasa in their hand. Dasrath Mahto and Ametika Mahto having Barchha in their hand, and Bina Mahto came with a lathi and they assaulted the deceased by Garasas, Barchha and Lathi. 21. He further stated that in view of the assault on his person, Ramlakhan Prajapati fell down. He further stated that upon seeing the assault on the deceased, he raised alarm whereupon PWs 1, 4, 5 and 6 came there and saw the occurrence. He further proved the motive for the aforementioned occurrence. The defence has not proved any animosity towards him. He further stated that upon seeing the assault on the deceased, he raised alarm whereupon PWs 1, 4, 5 and 6 came there and saw the occurrence. He further proved the motive for the aforementioned occurrence. The defence has not proved any animosity towards him. 22. PW 1 is wife of Dukhan Bhuian. She and PW 4, Bhuneshwari Devi had also categorically stated that the accused Krit Mahto, Bhagwan Mahto and Srju Mahto assaulted the deceased Ramlakhan Prajapati by Garasa; accused Dasrath Mahto assaulted by a Barchha and accused Bina Mahto and Kausilya Devi assaulted by a lathi, whereupon the deceased fell down after sustaining injuries on his person. 23. PW 7, Fulmati Devi, who is wife of the interment is not only an eye witness but she also stated that while she hid been grazing the cattle in field near Devi Mandap, some altercation took place between her and Kausalya Devi, In the meantime the deceased came there and Kausalya Devi raised alarm whereupon, Krit Mahto, Bhagwan Mahto and Sarju Mahto came with Garasa in their hands, Amerika Mahto and Dasrath Mahto came carrying Barchha and Biua Mahto came with a lathi and assaulted the deceased mercilessly, She further alleged that Kausalya Devi also assaulted the deceased by lathi. She further stated that the deceased sustained bleeding injuries, She further stated that she also received injuries at the hands of the Kausalya Devi and her injury was examined by a doctor later on. 24. Mr. P.S. Dayal, the learned counsel appearing on behalf of the appellants firstly, drew our attention to the fact that PW 1 did not state about the presence of any other witness. In this connection, our attention have been drawn in paragraphs 5, 8, 9 of her deposition. 25. The learned counsel submitted that similarly PW 4 in paragraph 2 of her deposition stated that Fulmatia was present and she did not see any male member. 26. It was further submitted that this P.W. had also not stated that she saw PW 1 also. 27. It was contended that although, according to PW 4, PW 6 (Manorma Devi) was an eye witness, she was merely tendered by the prosecution although she was wife of the deceased and it was expected of her to depose in the case. 28. 27. It was contended that although, according to PW 4, PW 6 (Manorma Devi) was an eye witness, she was merely tendered by the prosecution although she was wife of the deceased and it was expected of her to depose in the case. 28. P.W. 1, in paragraph 5 of her deposition has stated that besides her, only the deceased was tending the buffalos. In paragraph 8 of her deposition she stated that while she had been tending the buffalos no other person was near her. In paragraph 9 of her deposition, she merely stated that the persons from the house of the deceased reached the place of occurrence half an hour after the incident took place for lifting him to their house. 29. PW 4, in paragraph 2 or her deposition however, stated that she saw Fulmati as also the wife of Ramlakhan Prajapati. 30. In this connection, it may be mentioned that admittedly the place of occurrence is near the Devi Mandap. PW 1 categorically stated that her house is very near to the place of occurrence. Similarly PW 2 also stated that his house is situated about 120 steps west from the place of occurrence. PW 4 also stated that her house is about 10 steps away from the Devi Mandap. 31. PW 1 in her deposition categorically stated that she was tending buffalos at the relevant time. She further stated that from that place entire place of occurrence could be seen. 32. At the place where she and the deceased were tending the buffalos, it is possible that no body was present there at that time. However, taking into consideration that according to PW 2, he came upon hearing hullah and taking into consideration that his house is only 120 steps west from the place of occurrence, there cannot be any doubt that he could come to the place of occurrence and witnessed the same after coming out from his house. 33. In our opinion, the evidence of these witnesses ere not suggestive of the fact that they did not witness the occurrence, as con tended by the learned counsel for the appellants. 34. Similarly PW 4, whose house is only 10 steps away from the place of occurrence must have seen the entire occurrence from her house after hearing hullah. 35. In our opinion, the evidence of these witnesses ere not suggestive of the fact that they did not witness the occurrence, as con tended by the learned counsel for the appellants. 34. Similarly PW 4, whose house is only 10 steps away from the place of occurrence must have seen the entire occurrence from her house after hearing hullah. 35. In this situation, we do not find that the purported inconsistencies of the aforemetntioned witness are not such so as to let us come to a conclusion that the prosecution has not been able to prove its case at all. 36. So far as the statements of PW 1 in paragraph 9 of her deposition to the effect that the men from the house of the deceased reached half an four after the occurrence for the purpose of carrying him to their house the same must have been made in answer to the question as to when the other persons came to the place of occurrence for carrying the deceased to their house. This statement has got nothing to do with the presence or absence of PW 2. 37. It is, therefore, not possible for this Court to accept that in view of the statement made by PW 1 and PW 4, the presence of the eye-witness should not be believed. 38. With regard to the submission to the effect that according to P.Ws there had been indiscriminate assault ion the deceased, the learned counsel has drawan our attention to the statements of PW 1 made in paragraph 10 of her deposition, paragraph 3 of PW 4 and paragraph 4 of PW 7. In the said statements, the aforementioned prosecution witnesses have stated that there had been a free and steady flow of blows upon the deceased. 39. As noticed hereinbefore, the contentions of the learned counsel is that if the prosecution version is correct, the deceased could not have suffered only 5 injuries. 40. Normally rustic villagers and particularly the ladies while trying to describe an incident try to exaggerate the same. 41. It may be mentioned that all the eye-witnesses categorically stated that appellants nos. 1, 2 & 4 were having Garassa, appellant nos. 3 and 5 having Barchha and Kausalya (Devi since acquitted) and Bina Mahto (since decesed) had lathi in their hands. 42. PW 9, Dr. Jawahar Lal, in his postmortem report (Ext. 41. It may be mentioned that all the eye-witnesses categorically stated that appellants nos. 1, 2 & 4 were having Garassa, appellant nos. 3 and 5 having Barchha and Kausalya (Devi since acquitted) and Bina Mahto (since decesed) had lathi in their hands. 42. PW 9, Dr. Jawahar Lal, in his postmortem report (Ext. 2) found the following ante-mortem injuries on the dead body of Ram Lakhan Prajapati :- "(i) One incised wound 1" + ½" +½" on the lateral side of the left arm. (ii) One lacerated wound 1/2"+ 1/6" askin deep on the front of the right shoulder. (iii) One incised wound 4"+2½" + bone deep in fronr of the right elbow and the lower part of the arm (cutting skin, muscle, neurevascular bundles and superficial part of the humerus. (iv) One incised wound in front of the lower part of the thigh, knee and upper part of the leg of the left side (cutting skin muscles neurevascular bundle and partially out the upper part of the tibia -13" X 3' X 2" (iv) One lacerated would 2"X2"X skin deep on the frontal region of the skull." 43. He further opined that the injuries were caused by sharp cutting weapons such as Garasa except injury nos. 2 and 5 which were caused by hard and blunt substance i.e., lathi. He further opined that injury no, 1 might have been caused by Barchhi, 44. The fact that Ramlakhan Prajapati was killed is not disputed. The appellants, before the court below, also did not seriously question the correctness of the opinion of PW 9, in his cross examination. 45. From the nature of injuries suffered by the deceased, it is evident that the received injuries by Garasa, Barchhi and lathi. 46. In such a situation, there cannot be any doubt that all sorts of weapons which were in the hands of the accused persons had been used, As the accused person had been hitting the deceased more or less simultaneously, their statement be said to be wholly absurd, although they stated that there had been indiscriminate assault on the person of the deceased. 47. 47. The learned counsel, further contended that in this case, the investigation officer has not been examined and the four labourers of Prabhuwan Mahto i.e. Basudeo Bhuian, Sahdeo Bhuian, Chaulhan Bhuian and Rambrichh Bhuian who, according to the first information report, came after the occurrence for taking the deceasd to Lesliganj police station, have also not been examined. 48. It was further submitted that according to PW 2 he went to police station with four person and 2-3 persons were already present there but none was examined. It was further submitted that the residents of near by locality had also not been examined. 49. It may be mentioned that from the records of the court below, It appears that various steps were taken by the learned court below for securing the presence of the investigating officer but be could net be examined. Although it has been contended on behalf of the appellants that owing to non-examination of the investigating officer, the accused persons were seriously prejudiced, nothing specific bad been pointed out before us to show as to how and in what manner, non-examination of the investigating officer caused prejudice to the defence. 50. In Sk. Rashid & another vs. The State of Bihar another, reported in 1987 BBCJ 151 , a division bench of this Court held :- “True, non-examination of the investigating officer is not necessarily fatal to the prosecution. A court has to see whether the evidence of the investigating officer is essential for the case of the prosecution to succeed or not. The court has to lice at the same time that the accused is not unnecessarily harassed and unless it sees that for inevitable reasons the prosecution fails to produce the investigating officer, it may pronounce the judgment without the evidence of the investigating officer.” 51. It is, thus, not the law that in each case, the prosecution is bound to examine the investigating officer and his non-examination shall inevitably result in failure of the prosecution case. 52. There cannot be any doubt that normally the prosecution should examine the investigating officer. However, this Court has been with alarm noticing that in many cases the investigating officer does not choose to examine himself despite receipt of summons issued in this regard by the trying court. The attitude on the part of the investigating officer is not examining themselves is reprehensible. 53. However, this Court has been with alarm noticing that in many cases the investigating officer does not choose to examine himself despite receipt of summons issued in this regard by the trying court. The attitude on the part of the investigating officer is not examining themselves is reprehensible. 53. So far as the contention raised on behalf of the appellants to the effect that other witnesses had also not been examined, it may be mentioned that four labourers of Prabhuwan Mahto were not at all material witnesses inasmuch as, noticed hereinbefore, the fact that Ramlakhan Prajapati was murdered is not in dispute. Further the question as to who helped in carrying the dead body to the police station is also immaterial. 54. So far as the question of non examination of other witnesses who are residents of the locality is concerned, as mentioned hereinbefore, both PW 1 and PW 4 are residents of the locality. Further PW 2 and PW 7 who are also the residents of the locality, have been examined. It is not the law that the prosecution must examine all witnesses, although, they have little or no role of play in proving the prosecution case. 55. For the purpose of proving the prosecution case, the qualitative aspect of the evidence and not the quantitative aspect thereof, has to be considered. 56. This submission of the learned counsel, therefore, cannot be accepted. 57. So far as the submission of the learned counsel to the effect that the land in question had been in possession of the appellants is concerned, it may be mentioned that PW 1 did not state that the land which was the subject matter of dispute namely for the purpose of irrigation whereof, the accused persons had given water to Prabhuwan Mahto is in possession of the appellants. PW 1 merely stated that the appellants are in possession of some lands which they had purchased from some other persons which hag sot nothing to do with the instant case. 58. PW 1 merely stated that the appellants are in possession of some lands which they had purchased from some other persons which hag sot nothing to do with the instant case. 58. It was further submitted that the motive as alleged in the first information report has not been proved, It may he mentioned that in the first information report, it has clearly been stated that the motive for commission of the offence was that family of the deceased had been giving water to PW 11 from their own boring although, asked not to do so by the accused persons. This has been proved by PW 5 and PW 6. It has been admitted by the accused persons that they and family of PW 11 are on litigating terms. 59. PW2 in Paragraph 5 of his deposition clearly stated that occurrence took place as the family of the deceased has given water to Prabhuwan Mahto from their boring PW 6 also made similar statements. 60. In this situation, it cannot be said that there is no evidence on records to prove motive for commission of the offence on the part of the appellants as alleged in the first information report. 61. It was next contended by the learned counsel that in the instant case Sections 148 and 149 of the Indian Penal Code cannot be said to have any application inasmuch as there has been no premediation on the part of the appellants to commit the offence in question. It was also submitted that the entire occurrence must have happened at the spur of the moment and so the provision of Exception 4 of Section 300 of the Indian Penal Code is attracted in this case. 62. This submission of the learned counsel alto cannot be accepted. It has clearly been stated by PWS 1, 2, 4 and 7 that when the deceased had been tending the buffalos. Kausalya Devi gave a call to others saying that the deceased had been passing by, whereupon all the accused persons came out with various weapons and started assaulting the deceased. In such a situation, it cannot be said that Exception 4 to section 300 of the Indian Penal Code is attracted. 63. It is this clear that the occurrence cannot be said to have taken place at the spur of the moment. In such a situation, it cannot be said that Exception 4 to section 300 of the Indian Penal Code is attracted. 63. It is this clear that the occurrence cannot be said to have taken place at the spur of the moment. Nor is there any material to show that erupted a sudden quarrel. In this situation, it is absolutely clear that the ingredients of exception 4 to Section 300 of the Indian Penal Code cannot he said to be attracted. 64. It may further be mentioned that PW 7 wife of PW 2 is not only an eye-witness but she also suffered injuries. Her injury report has been proved by PW 10, Dr. Awadh Kisore Upadhya, which is as follows :- "Schynosis … two in number of left thigh, black in colour 3"xI" and I" the said injury report has been marked as Ext. 3. 65. It is further clear that cculer evidence and medical evidence brought on record clearly proved the nature of injuries sustained by the deceased. 66. Before parting with the case, it may be mentioned that the specific defence raised on behalf of the appellants was that on that date one Sukhan Bhuian was killed by PW 11 and his sons and the deceased was killed by the men of aforementioned Sukhan Bhuian as a retaliation of the said incident. The certified copy of the judgment of Session Trial No. 43 of 1984 wherein PW 11 and his sons stood trial under section no302 of the Indian Penal Code has been produced and as Marked as Ext. A before the learned court below. From a perusal of the said judgment, it appears that in this case Prabhuwan Mahto and his sons were acquitted. 67. It is therefore, clear that by reason of the said judgment, the complicity of PW 11 and his sons it the alleged murder of Sukhan Bhuian had not been proved. 68. Taking thus, all facts and circumstances into consideration we do not find any merit in this appeal which is accordingly dismissed. D. Sinha J.- I agree. Appeal dismissed.