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Allahabad High Court · body

1991 DIGILAW 911 (ALL)

DEWA v. STATE OF U P

1991-07-16

D.K.TRIVEDI, S.H.A.RAZA

body1991
S. H. A. RAZA, J. The appeallants Dewa and Putti Lal have preferred this appeal against the judgment and order dated 31- 3-1980 by means of which they were convicted and sentenced to imprisonment for life under Section 302/34, I. P. C. 2. In brief, the facts of the prosecution case as set out in the F. I. R. (Ext. Ka-1) lodged by Smt. Jagdei, widow of the deceased Bhagwandin, at 10. 30a. M. on 11-11-1978, is that Bhagwandin deceased was her husband. During the course of the consolidation proceedings the agricultural land was allotted to appellant Dewa. There existed a mango tree, the amount of which Bhagwandin was so to get from Dewa appellant. Dewa had promised to pay the said amount. But instead of paying the said amount he started taking the fruits. When Bhagwandin deceased for the payment of the amount Dewa stated that he would neither pay the price of the tree nor allow him to cut the same. On 11-11-1978 at about 3. 30 a. m. when informant Smt. Jagdei as well as her deceased husband Bhagwandin were collecting groundnuts in their agricultural field the Appellant No. 1 armed with a sickle and Appellant No. 2 armed with a Kanta came on the spot. Dewa started saying to Bhagwandin that you were threatening to cut the tree but today we would cut you off and then you cut off the tree. The informant as well as her deceased husband after watching the gesture of the appellants tried to run away but as soon as they reached the field of Mendi Lal, Dewa assaulted Bhagwandin with Sickle as a result of which Bhagwandin fell down. Putti Lal thereafter gave several kanta blows to Bhagwandin. The appellant also chopped off the head of Bhagwandin. On hearing the alarm raised by the informant, Jitta Rajdas, Kallu Pasi, Gaya Prasad Raidas, Suraj Bux Singh and several others reached on the spot and caught hold of Dewa Appellant No. 1, Putti Lal appellant managed to escape. The dead body of Bhagwandin was lying in the field. The informant Smt. Jagdei thereafter went along with Ganga Prasad to lodge the F. I. R. which was scribed by Sri Jamuna Prasad Shukla, Head Moharrir. 3. After lodging of the F. I. R. the case was investigated by Sri Daya Shankar Pandey. The dead body of Bhagwandin was lying in the field. The informant Smt. Jagdei thereafter went along with Ganga Prasad to lodge the F. I. R. which was scribed by Sri Jamuna Prasad Shukla, Head Moharrir. 3. After lodging of the F. I. R. the case was investigated by Sri Daya Shankar Pandey. Neither Sri Daya Shankar Pandey nor Sri Jamuna Prasad were examined P. W. Sri Satya Parkash Shukla, S. I. who was posted at police station Hasanganj, district Unnao, was produced by the prosecution, who stated that Sri Daya Shankar Pandey, S. I. was seriously ill and was admitted in Medical College, Lucknow and was unable to move and Sri Jamuna Prasad was posted at the relevant time at Allahabad on Kumbh Mela duty. P. W. 4 identified their handwriting and signatures and stated that on 11-11-1978 the F. I. R. was lodged at 10. 30 a. m. which is in the handwriting of Sri Jamuna Prasad Shukla and bears the signature1? of Sri Daya Shanker Pandey. The F. I. R. was marked as Ext Ka-1, Sri Daya Shanker Pandey, S. I. proceeded to fie spot, prepared Panchayatnama, Ext. Ka-3, took photo of Lash (dead body) Ext. Ka-4, prepared Chalan Lash Ext. Ka-5 and the letter to the Chief Medical Officer Gxt. Ka-6 which bore his signature. P. W. 4 further stated that the dead body of Bhagwandin was sealed and sent for postmortem examination. Blood stained and plain earth were taken into custody and sealed separately and memos Ext. Ka-7 and Ka-8 were prepared. Ext. Ka-8 is the memo of Blood statined Hansib and blood stained clothes of Dewa appellant which were taken by the Investigating Officer in presence of the witnesses also bore the signatures of Sri Daya Shanker Paodey. He further deposed that he along with Sri Daya Shanker, S. O. , was present at the time of spot inspection and the site plan Ext. Ka-9 was prepared by the I. O. which bore the signature of Sri Daya Shanker Pandey. On the same day Sri Daya Shanker Pandey recorded the statement of the witnesses and sent Dewa to police station. And after completion of the investigation, the Investigation Officer submitted charge sheet Ext. Ka-10. 4. The charges were framed on 30-8-1979 under Section 302/34, I. P. C. by the Sessions Judge, Unnao against both the appellants. On the same day Sri Daya Shanker Pandey recorded the statement of the witnesses and sent Dewa to police station. And after completion of the investigation, the Investigation Officer submitted charge sheet Ext. Ka-10. 4. The charges were framed on 30-8-1979 under Section 302/34, I. P. C. by the Sessions Judge, Unnao against both the appellants. The accused persons state that they are real brothers. Dewa stated that he was arrested from the house and Putti Lal stated that he surrendered himself on 20-11-1979. They were granted bail during the trial of the case. 5. The earth recovered from the place of occurrence, Baniyan, Dhoti, Hansia of the appellant Dewa were sent for Chemical Examination who submitted report dated 21-8-1979 which was filed along with two affidavits Ext. Ka-11 and Ka-12 sworn by constables Jagdish Singh and Anruddha Prasad Pandey. The Chemical Examiner found that the Baniyan, Dhoti and Hansia of the appellant Dewa had blood-stains. 6. From the side of the defence the appellant relied upon two documents. Ext. Kha-I is copy of the statement of Kusehar dated 17-11-1954 and Ext. Kha-2 is the copy of the judgment in Civil Reference No. 38/110/104/50 of 1957 Hoshram v. Bhagwandin and others to prove that Bhagwandin was not an Adhivasi. 7. The postmortem examination was conducted by P. W. 2 Dr. S. N. Srivastava, Medical Officer, District Hospital, Unnao who stated that he conducted the post mortem examination of the deceased on 12-11- 1978 at 4. 15 p. m. He stated that the age of Bhagwandin was 55 years and the death had occurred about 1 day earlier, stomach was swollen and regor mortis of hand and feet had passed off. The doctor found the following injuries upon the body of the deceased (1) Incised wound 1"x1/4"x muscle deep on the right side face at the middle part of right lower jaw. (2) Incised wound 1"x 1/4" x muscle deep on the right side face, 1" below the right ear. (3) Incised wound 1"x 1/2"xmuscle deep on the back of head 5" be hind the right ear. (4) Incised wound at the level of 6th cervical vertebra. The head and upper part of neck separated from the remaining part of trunk The whole part is clean cut. The 6th cervicle vertebra is also clean cut. (3) Incised wound 1"x 1/2"xmuscle deep on the back of head 5" be hind the right ear. (4) Incised wound at the level of 6th cervical vertebra. The head and upper part of neck separated from the remaining part of trunk The whole part is clean cut. The 6th cervicle vertebra is also clean cut. (5) Incised wound 2"x 1"x muscle deep on the right forearm, 4" below the right elbow joint. (6) Multiple abrasions 1"x 1/4" to 2"x 1/4" on the posterior part of right upper part, forearm including the elbow joint. (7) Incised wound 1"x 1/2" X muscle deep on the posterior aspect of the left elbow joint. (8) Incised wound 2" x 1 /2" X muscle deep on the posterior part of the left elbow joint, 1/2" below the Injury No. 7. (9) Incised wound 4" x 1/2" muscle deep on the palmer aspect of the left hand. (10) Incised wound 4"x 1/2" cavity deep on the right side chest, lower part, 4" below the right nipple. (11) Incised wound 1"x 1/2" X muscle deep on the right side chest, 1" below the Injury No. 10. (12) Incised wound 4"x1" muscle deep on the right thigh, middle part, outer aspect, 6" above the right knee joint. (13) Incised wound 4"x 1" muscle deep on the right thigh, middle part, outer aspect, just parallel to Injury No. 12. (14) Incised wound 2" X1"x muscle deep on the outer part of the right knee joint. (15) Incised wound 1"x1/2" on the outer side of right left middle part, 6" above the right ankle joint. (16) Incised wound 1"x 1/2" on the right side back, just over the right scapular bone. (17) Multiple abrasions 1"x 1/4" on the size on the top of right shoulder joint. (18) Incised wound 1/2"x1/2" on the right side back, middle part, 2 outer to the mid line of spine. (19) Incised wound 1"x 1/2" on the posterior aspect of right thigh, 6" below the right joint. 8. He further stated that 6th cervical vertebra and spinal cord were out and trachea at the level of sixth cervical vertebra was also cut and in abdominal cavity there was about 500 cc of semi clotted blod, half of the liver had 2"x1/2" incised wound, that stomach and small and large intestines were empty. 8. He further stated that 6th cervical vertebra and spinal cord were out and trachea at the level of sixth cervical vertebra was also cut and in abdominal cavity there was about 500 cc of semi clotted blod, half of the liver had 2"x1/2" incised wound, that stomach and small and large intestines were empty. In his opinion the death was caused due to shock and harmorrhage as a result of injuries caused to him. The injuries were such so as to cause his death. His death could have occurred on 11-11-1978 at 8. 30 a. m. Except Injuries No. 6 and 17, all the injuries were caused by some sharp edged weapon like Kanta and Hansia. Injuries No. 6 and 7 might be caused due to fall on some hard object. He proved the post mortem report which is marked Ext. Ka-2 cross-examination he further stated that the death could also be caused at 4 a. m, also and Injury No. 4 could be caused only heavy cutting weapon and the rest of the injuries may be caused by sharp edged weapon. He further stated that as the injuries were caused by sharp edged weapon he could not say as to how many injuries were caused by Hansia and how many by some other sharp edged weapon. 9. The prosecution also examined P. W. 1 Jagdei wife of the deceased and P. W. 3 Gaya Prasad who was alleged to be the eye witness of the occurrence P. W. 1 Smt. Jagdei stated that the accused are real brothers. During the course of consolidation proceedings here agricultural field were allotted to Dewa. There also existed a mango tree which was valued at Rs. 60/- which money she was to get from Dewa. Dewa had promised, during the course of consolidation proceedings, that he would give money out instead of paying the same he started taking fruits of the tree. Her deceased husband insisted for the payment but to no avail. A day before occurrence here husband told Dewa to pay the money otherwise he would cut the tree. Dewa replied that he would neither give money nor allow Bhagwandin to cut the tree. When on the day of occurrence, she went to collect the groundnut on the plot, along with her husband at about 8 or 8. 30 a. m. , the accused persons came there. Dewa replied that he would neither give money nor allow Bhagwandin to cut the tree. When on the day of occurrence, she went to collect the groundnut on the plot, along with her husband at about 8 or 8. 30 a. m. , the accused persons came there. Dewa was holding Hansia and Putti Lal had a Kanta, Dewa told Bhagwandin that yesterday he had threatened to cut off the tree but today they would cut him off. She and her husband ran towards the north and when they reached the field of Mendi, Dewa attacked her husband with Hansia as a result of which he fell down. Thereafter Putti Lal began to inflicit injuries from his Kanta. She raised an alarm as a result of which Jeet Bahadur, Surya Bak, Gaya Prasad and Kalloo reached there. They caught held of Dewa at the spot along with Hansia but Putti Lal managed to escape. Hansia as well as the clothes of Dewa were stained with blood. Thereafter the accused persons severed the head of Bhagwandin deceased. Dewa remained in the custody of aforesaid persons. Later on she along with Gaya Prasad went to the police station on cycle and lodged the report Ext. Ka-1. Whatever she had told was written by the police constable. 10. In cross-examination she stated that she did not know the name of Dewas father but at the time of lodging of the F. 1. R. she might have mentioned the name of the father of Dewa. She did not remember that name she had told at that time and even then she did not know the name of the father of the accused persons, the village is about 200 paces from the place of occurrence. Village Mustafabad is at a distance of 2 miles from her village, that there are 2 or 3 houses between her and Dewas house and the distance would be about 10 or 15 paces, she had told the Investigating Officer that Hansia and clothes were smeared with blood but she could not say as to why the Sub-Inspector did not mention it in her statement recorded under Section 161, Cr. P. C. The accused persons attacked Bhagwandin in the field of Mandi and they started running and shouting but nobody came from the village. P. C. The accused persons attacked Bhagwandin in the field of Mandi and they started running and shouting but nobody came from the village. She was at a distance of 3 or 4 paces from her husband, when the accused persons surrounded her husband. They did not attack her. She could not tell whether Hansia was round or what was the length of the handle of Hansia. Kanta injuries were infliected when her husband had fallen down on the ground and no Hansia injury was caused after her husband fell down. Blood had fallen on the spot. Dewa was caught near the deadbody. Report was written at the police station in 3 or 4 minutes. The Investigating Officer came on the spot when she left the police station. She denied the suggestion that the report was lodged after preliminary investigation was made. She denied the suggestion that Dewa was called from the house by the Investigating Officer and then he was arrested. She also denied the suggestion of the defence that her husband was murdered in early hours and none had seen it and she had falsely implicated the accused persons due to enmity. 11. Gaya Prasad P. W. 3 deposed that he knew the two accused persons. Bhagwandin was murdered about 18 months back. He and Suraj Bux had gone to Barauna Bazar a day before the incident. While they were returning the next day in the morning at about 8. 30 a. m. they saw the occurrence, Suraj Bux had expired later on. When they reached Mendi Lals field, they watched two persons, Dewa armed with a Hansia and Putti Lal armed with Kanta, murdering Bhagwandin. Bhagwandins wife and Jitta were also there. Bhagwandin fell on the ground. Dewa severed the head of Bhagwandin from Hansia They made a thrust and caught hold of Dewa along with his blood stained Hansia but Putti Lal escaped the clothes of Dawa and Hansia were smeared with blood. 12. In cross-examination he admitted that Bhagwandin belonged to his caste but he had no relationship with him. He also denied that no land of his was mortgaged with Bhagwandin. Barauna Bazar is at a distance of two miles away from his village. The place of occurrence was at a distance of 1 miles away from his village. 12. In cross-examination he admitted that Bhagwandin belonged to his caste but he had no relationship with him. He also denied that no land of his was mortgaged with Bhagwandin. Barauna Bazar is at a distance of two miles away from his village. The place of occurrence was at a distance of 1 miles away from his village. He reached the Bazar at about 2 p. m. and remained there for about four hours. On that day he and Suraj Bux stayed with one Sheo Dutt Singh, a relation of Suraj Bux, in the night and on next morning they started at about 7. 30 a. m. and reached the place of occurrence in about 45 minutes. When they heard the alarm, they were at a distance of 100 paces from the place of occurrence, but they could watch the incident from there. They immediately rushed towards the place of occurrence and watched that Bhagwandin was lying and in their presence Dewa had cut of the head of the deceased with 2 or 3 blows of Hansia. The other accused Putti Lal was also assaulting with his Kanta. He had disclosed the aforesaid facts to the Investigating Officer but he did not know whether the Investigating Officer had written the same or not. None of the accused inflicted any injury on them and asked them to go away. Dewa was caught by Prakash, Jitta, Jagdei and Sarju, 4 or 5 paces away from the dead body. When the accused persons were murdering Bhagwandin, nobody came there but thereafter large number of persons assembled. He remained at that place for about four hours and as long as he remained there Smt. Jagdei was also present. The Investi gating Officer talked to him at about 1 p. m. on the spot. He denied the suggestion of the defence that he had given evidence due to relationship. 13. The learned counsel for the appellants submitted that there existed no motive for the commission of the crime. The prosecution case is improb able for the reason that the appellant could not have committed the murder of Bhagwandin for a paltry sum of Rs. 60/ -. This argument is misconceived. The parties, who are agriculturist, belong to lower strata of the society. The prosecution case is improb able for the reason that the appellant could not have committed the murder of Bhagwandin for a paltry sum of Rs. 60/ -. This argument is misconceived. The parties, who are agriculturist, belong to lower strata of the society. The F. I. R. as well as the evidence adduced by the prosecution discloses a motive and it cannot be said that for a paltry sum of Rs. 60/- the accused persons would not have committed this murder. 14. The learned counsel for the appellants submitted that the prosecu tion has adduced only two eye- witnesses who were interested one and no reliance can be placed upon their testimony. It was canvassed from the side of the appellant that P. W. 4 Gaya Prasad was a chance witness and no reliance can he placed upon his test mony for the reason of the fact that a day earlier to the incident he had gone to Barauna Bazar and while returning in the morning at about 8. 30 a. m. the next day he saw the occurrence. It was also submitted that he was an interested witness as he belonged to the same caste to which the deceased belonged. It was also submitted that the case of the defence that the land of Gaya Prasad was mortgaged with deceased Bhagwandin, hence for the reason of this fact that he belonged to the caste of Bhagwandin and had mortgaged his land with the deceased, his testimony should not be relied upon as it does not inspire confidence. There is no detail of the fact that Gaya Prasad belonged to the caste of Bhagwandin deceased but in cross-examination Gaya Prasad totally denied that any land of his was mortgaged with Bhagwandin. The defence has failed to produce evidence, much less documentary evidence to prove that Gaya Prasad had mortgaged his land with Bhagwandin. Only for the reason of the fact that Gaya Prasad had gone to Barauna Bazar a day before the incident and while returning from the said Bazar next day he saw the incident, it cannot be said that he was a chance witness. In his testimony he gave full details of the incident and although he was cross-examined at length but nothing came out to discredit his testimony. In his testimony he gave full details of the incident and although he was cross-examined at length but nothing came out to discredit his testimony. Only for the reason of the fact that he belonged to the caste of the deceased his testimoney cannot be thrown out. It was also urged that Gaya Prasad in his statement had stated that after the said incident he remained at the place of occurrelice for four hours and during that period complainant Smt. Jagdei also remained there. This statement is contrary to the case of prosecution as Smt. Jagdei lodged the F. I. R. about 10. 30 A. M. at the police station Hasanganj. Undoubtedly this part of the statement of Gaya Prasad is contradictory to the case of the prosecution but only for this contradiction his entire testimoney cannot be discarded. The possibility cannot be ruled out that he might have said this in state of confusion. It is the settled position that if there exist one or two minor contradictions which do not go to the root of the testimony of a witness the entire statement should not be discarded. The statement of a witness is always read as a whole and if it inspires confidence then such contradictions may be ignored. 15. It was next urged that there are few contradictions in the statement of Smt. Jadgei which show that she was not a truthful witness. In this regard it was pointed out that in cross-examination she has stated that she did not know the name of Dewas father but at the time in the F. I. R. she had mentioned the name of the father of Dewa. In her statement she had explained that at the time of the lodging of the F. I. R. she might have mentioned the name of the father of Dewa but at the time of giving her statement she did not remember that name she had mentioned. It was also submitted that she had told the Investigating Officer that Hansia and clothes were smeared with blood but she could not say as to why the Sub-Inspector did not mention this fact in her statement recorded under Section 161, Cr. P. C. It was submitted that it was most unnatural on her part also, not to have rushed toward her husband to save him from the attack and have received injuries. P. C. It was submitted that it was most unnatural on her part also, not to have rushed toward her husband to save him from the attack and have received injuries. But neither she rushed to save her husband nor she received any injury in the occurrence. This argument does not merit any discussion for the reasons of the fact that it is not expected from a terror and fear stricken lady to have rushed to the spot when the appellants were causing fatal injuries to her husband. It was most natural for her not to have rushed to save her husband from the on slaught. It was also pointed out that although in her statement Smt. Jagdei had stated that while going to lodge the F. I. R. she was sitting at the back of cycle but neither she mentioned this fact in the F. I. R. nor disclosed the same to the Investigating Officer who recorded her statement under Section 161, Cr. P. C. This omission is too trivial in nature and not discredit her testimony. The other discrepancies in her statement which were pointed out by the defence that she failed to disclose as to whether the Hansia was round or what was the size and length of the handle of the Hansia (sickle) are too trivial matters which cannot discredit her testimony. She was cross-examined at length and nothing had come out to discredit her testimony. There existed no reason for the lady, to implicate the appellants if they were not true assailants. There also existed no reason why she would not have mentioned the name of the real assailants, if they would have committed the murder of her husband. 16. It was vehemently canvassed before this Court that the occurrence did not take place at abut 8 or 8. 30 P. M. in the morning but it must have occurred in the early morning and in this regard it was pointed out that Smt. Jagdei herself had stated in her statement that before leaving their house for collecting monkey nuts, her husband had taken breakfast but she did not know as to what breakfast he had taken as when he took the breakfast she was outside the house. In this regard, the learned counsel for the appellant referred to the postmortem report which discloses that the stomach, small and large intestines of the deceased were empty. The learned counsel for the defence further submitted that Dr. S. N. Srivastava, Medical Officer who carried out the postmortem on the dead body of the deceased, himself stated that the death of the deceased could have been caused at 4 A. M. The said doctor also pointed out that the stomach, small and large intestines of the deceased were empty. Under the aforesaid circumstances and the evidence adduced by the prosecution, it was vehemently canvassed by the appellant that entire prosecution story is concocted. It was urged that the incident must have taken place early in the morning, otherwise there existed no reason for the stomach small and large intestines being empty when admittedly the case of the prosecution was that the deceased went to the field after taking his breakfast. Undoubtedly, from the perusal of the postmortem report as well as from the statement of the doctor it is crystal clear that the stomach, large and small intestines were empty but it has to be seen as to whether the deceased after taking the breakfast went to the field or not. In this regard the statement of Smt. Jagdei is very important, wherein she had stated that she was outside the house when her husband went to take the breakfast. It might have been possible that instead of taking any solid food the deceased might have taken some drinks only or might have not taken any thing hence the credibility of the prosecution case and witnesses cannot be discarded only for the reason of the fact that the story as set out by the prosecution is not compatible either with the postmortem report or the statement of the doctor. The occurrence had undoubtedly taken place and the deceased was murdered, there existed no justification for Smt. Jagdei to let off the real culprits and to implicate the appellants. Undoubtedly, there exist some omission and contradictions of a very minor nature in her testimony but her statement would indicate that although she was cross-examined at length, she withstood the test of cross examination and narrated the entire incident in minutes, details. We find no justification to discard her testimony. 17. Undoubtedly, there exist some omission and contradictions of a very minor nature in her testimony but her statement would indicate that although she was cross-examined at length, she withstood the test of cross examination and narrated the entire incident in minutes, details. We find no justification to discard her testimony. 17. It was lastly contended by the counsel for the appellant that although there were several witnesses who saw the occurrence but the prosecution has not examined them. But only Gaya Prasad and Smt. Jagdei were examined who according to the appellants were interested witnessess. This Court after examining the evidence of Smt. Jagdei and Gaya Prasad came to a definite conclusion that they were not interested witnesses but were natural witnesses of the occurrence. The main thrust of the argument of the learned counsel for the appellants is that due to non-production of the material witnesses an adverse presumption under Section 114 of the Evidence Act should be taken against the prosecution that if they would have been produced they would have deposed against the prosecution. The language of the illustration (g) to Section 114 of the Evidence Act is "evidence which could be called and is not produced but that does not mean all available evidence. The prosecution is not bound to call witnesses irrespective of consideration of number and reliability and cannot be expected to discharge the functions of both the prosecution and the defence. This position has long been settled and it was reported in A. I. R. 1936 (Privy Council), 289 (300) that it is only those witnesses who are essential to the unfolding of the narrative on which the prosecution is based who must be called by the prosecution whether in the result the effect of 4heir testimony is for or against the case of the prosecution. It is not the part of the duty of the prosecution to supply ammunition to the defence for the purposes of blowing up the prosecutions case. It has been held in A. I. R. 1954 SC 31 that there is no obligation, compelling the counsel for the prosecution to call all the witnesses who speak to facts which the Crown desire to prove. It has been held in A. I. R. 1954 SC 31 that there is no obligation, compelling the counsel for the prosecution to call all the witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a court ought and no doubt will, take into consi deration the absence of witnesses whose testimony would be expected, it must adjudge the evidence as a whole and arrive at the conclusion accordingly taking into consideration the persuasiveness of the testimony given, in the light of such criticism, as may be levelled at the absence of possible witnesses. It was again laid down in A. I. R. 1968 SC 1402 (1407) that in a case where a large number of persons have witnessed the incident, it is open to the prosecutor to make a selection in examining the witnesses. The selection must however be fair and honest and not with a view to suppress inconvenient witnesses. In A. I. R. 1979 SC 1116 the same principle was enunciated and the Honble Supreme Court held that no adverse presumption can be drawn due to non-examination of eye witness by the prosecution. 18. In the instant case the prosecution has selected two eye witnesses, namely, Smt. Jagdei whose husband was killed and was present with her husband at the site of the occurrence and the person before whose presence nearby the murder took place. There was no necessity for the prosecution to call all the witnesses who were present at the site of occurrence with a view to duplicate the evidence. We are of the view that the selection of the afore said two witnesses was fair and honest and there was no intention on the part of the prosecution to suppress the inconvenient witnesses. 19. It is the duty of the appellate court to consider as to whether or not the view taken by the sessions could be reasonably possible, we have very carefully gone through the judgment of the Sessions Judge and after hearing the parties at length we are satisfied that the view taken by the Sessions Judge was doubtless and reasonably sound. It is the duty of the appellate court to consider as to whether or not the view taken by the sessions could be reasonably possible, we have very carefully gone through the judgment of the Sessions Judge and after hearing the parties at length we are satisfied that the view taken by the Sessions Judge was doubtless and reasonably sound. We, therefore, hold that the prosecution has succeeded in proving its case to the hilt and this is surely not a fit case in which this court should interfere with the order of conviction of the appellants passed by the learned Sessions Judges. 20. Accordingly the appeal fails and the judgment and order passed by the learned Sessions Judge upheld. If the appellants are on bail they shall be taken into custody forthwith to serve out the sentence. The Chief Judbial Magistrate concerned to submit compliance report within six weeks. Appeal dismissed. .