JUDGMENT 1. - This appeal filed under section 374 (2) Cr. P.C. has been directed against the judgment dated 22-5-1987 passed by the learned Additional Sessions Judge No. 1, Hanumangarh, whereby he found appellants Jagraj Singh and his sons appellants Jagjeet Singh and Sarjeet Singh guilty for the offence punishable under sections 302/34 I.P.C. and convicted and sentenced each of them to imprisonment for life and a fine of Rs. 250/- in default to further undergo simple imprisonment for one month. 2. Briefly the relevant facts of this case are that on 15-4-1985 at about 6.45 P.M.. P.W. 4 Gurubux Singh lodged an oral report before PW 6 Subhas Chandra S.H.O., Police Station, Tibbi informing that on the same day at about 6.30 P.M. when he alongwith P.W. 7 Sohan Lal and Ganesh Ram were harvesting wheat crops of Sanwanta Ram standing in his field situated at Chak No. 6 A.G., appellant Sarjeet Singh & Jagjeet Singh armed with Gandasis and two other persons, whose names he did not know, having lathis came in a camel cart and that in another camel cart appellant Jagraj Singh armed with a Gandasi and one lady also arrived there. He further informed that seeing these persons Sanwanta's son (Ram Singh), wife (Revati) and daughter (Jamuna), who were picking up grass nearby, fled away. He further informed that all the five male assailants surrounded Ganesh Ram, who was sleeping underneath a bordi tree in the field of Sanwanta Ram, that appellant Sarjeet Singh inflicted a Gandasi blow on his head and that thereafter all accused persons caused him injuries with lathis and Gandasi. Gurubux Singh also informed that when he & Sohan Lal raised alarms the accused persons threatened them that they would also be killed if they advanced towards them, and that thereafter, the accused persons fled away. Gurubux Singh, Sohan Lal lifted injured Ganesha Ram and took him to Dharampal's Dhani and from there they brought him in Dharampal's tractor to Govt. Hospital, Tibbi, where the doctor declared him dead. The S.H.O. registered a case under sections 147, 148, 302 & 149 I.P.C. vide F.I.R. Ex. P. 15 and rushed to the place of occurrence. Since it had become dark, he deputed same constables to keep the place of occurrence safe, and intact. Thereafter, he went to the hospital. On the next day he prepared the site plan and its memo Ex. P. 15 and rushed to the place of occurrence. Since it had become dark, he deputed same constables to keep the place of occurrence safe, and intact. Thereafter, he went to the hospital. On the next day he prepared the site plan and its memo Ex. P. 17 & Ex. P. 17-A and also seized and sealed sample of blood-stained soil and controlled sample therefrom, vide seizure memo Ex. P. 18. P.W. 5 Dr. Devi Lal conducted the post-mortem examination of the dead body of Ganesha Ram and found following injuries: i. Incised wound 1" x 1/4" x 1/4" on left forearm ii. Bleeding with abrasion 1/2" x 1/2" on left elbow iii. Incised wound 4" x 3/4" x 2" on the left parietal region of skull cutting left & right parietal bones. iv. Incised would 5" x 3/4" x 2" on occipital region cutting the bone and damaging brain matter v. Bruise 4" x 3/4" right thigh 2" above the knee joint vi. Bruise 4" x l"on left iliac crest region vii. Incised wound 3/4" x 1/4" x bone deep in the basal region of right index finger. viii. Bruise 6" x 3/4" on the left back chest mid region The brain matter was cut by incised wounds. All these injuries were ante mortem in nature. The doctor prepared post-mortem examination report Ex. P. 16 and opined that the cause of death was severe and extensive injury to brain & massive haemorrhage. The appellants were arrested on 25-4-1985 and in pursuance of their separate information they got recovered three Gandasis from their houses. The other assailants, who were armed with lathis, could neither be identified nor apprehended. After investigation, the Investigation Officer submitted charge-sheet against the present appellants before the Judicial Magistrate No. I, Hanumangarh, who committed the case to the learned Additional Sessions Judge No. 1 Hanumangarh. The appellants were charged for the offences under sections 302/149 & 148 I.P.C. The prosecution examined as many as six witnesses. The appellants in their plea under section 313 Cr. P.C. denied the circumstances appearing against them in the prosecution evidence and asserted that the said field was cultivating by them. However, they did not examined any witness in their defence. The learned Sessions Judge by his impugned judgment convicted the appellants under sections 302/34 I.P.C. and sentenced them in the manner detailed ad ultra. Hence this appeal. 3. P.C. denied the circumstances appearing against them in the prosecution evidence and asserted that the said field was cultivating by them. However, they did not examined any witness in their defence. The learned Sessions Judge by his impugned judgment convicted the appellants under sections 302/34 I.P.C. and sentenced them in the manner detailed ad ultra. Hence this appeal. 3. We have heard the learned counsel for the appellants, the learned Public Prosecutor for the State and the learned Advocate for the complainant and carefully perused the record of the lower court. 4. Shri M.L. Garg, learned counsel for the appellants has vigorously contended that the trial Judge has not properly appreciated the facts of this case in the light of evidence produced, that the alleged eye-witnesses P.W. 1 Sarjeet Singh and P.W. 2 Bhadar Ram have turned hostile and not supported the prosecution case and that material witnesses Smt. Jamna & Smt. Revati, Who were present at the time of alleged incident and were cited as eye-witnesses in the charge-sheet have been deliberately left. On the other band P.W. 7 Sohan Lal, who was not found to be an eye-witness by the Investigation Officer and whose name was not included in the calender of witnesses, was illegally examined by the trial Judge Shri Garg submitted that since Sohan Lal was not examined under section 161 Cr.P.C. his statement has been wrongly relied upon by the trial Judge. According to him, P.W. 4 Gurubux Singh was a concocted witness and whose presence at the time of alleged incident was doubtful. The trial Judge has committed an illegality in placing reliance on his testimony and not taking an adverse inference against the prosecution for the non production of the said material witnesses. He has argued that as per report of the Patwari, though the disputed field was allotted in the khatedari of Sanwanta Ram, the same was cultivated by the appellants and as such Sanwanta Ram or his labourers had no right to cut the crops therefrom. Shri Garg has also asserted that the F.I.R. was scribed after the investigation, and that there was no motive for the appellants to have committed the murder of Ganesh Ram with whom they had no previous enmity. 5. Shri Garg has also asserted that the F.I.R. was scribed after the investigation, and that there was no motive for the appellants to have committed the murder of Ganesh Ram with whom they had no previous enmity. 5. On the other hand, Shri S.M. Singhvi, learned Public Prosecutor for the State and Shri A.K. Singh Advocate for the complainant have argued that from the prosecution evidence it stands well proved that Smt. Jamana & Smt. Revati had fled away seeing the appellants and as such they were not eye-witnesses. More-over, they were won over by the appellants, and hence, the Additional Public Prosecutor after submitting an application dated 1 C-l2-1985 in this regard had rightly left them. They have submitted that Sohan Lal (P.W. 7) was one of those labourers, who was harvesting the CTC ps at the time of alleged incident and was named in the F.I.R. also, but the Investigation Officer for no valid reason did not examine him. Thereupon, the Additional Public Prosecutor submitted an application during the trial and the learned trial Judge by a well reasoned and exhaustive order dated 18-7-1986 found that Sohan Lal was a material witness and that hrs testimonies was necessary for the just decision of the case. They have submitted that the trial Judge has not committed any illegality in holding that Sohan Lal had corroborated the sworn testimony of Gurubux Singh. They maintained that the appellants and Sanwant Ram had litigation in respect of the disputed fields, wherein the appellants had unauthorisedly constructed a Kachha house, and that when labourers including Ganesh Ram harvested the crops, the appellants had grievance. Thus had the motive to commit the crime. They have also reiterated the reasonings given by the trial Judge. 6. We have given our most anxious and careful consideration to the rival contentions. The factum of homicidal death of Ganesh Ram is not in dispute. PW 1 Surjeet Singh & PW 2 Bhadar Ram were not named as eye-witnesses in the F.I.R. They were examined under section 161 Cr. P.C. as late as on 25-4-1985. PW 4 Gurubux Singh, PW 7 Sohan Lal & other witnesses did not say that those witnesses were present at the time of alleged incident. In such circumstances, the factum of their being declared as hostile is per se not sufficient to hold that prosecution story is false or concocted. P.C. as late as on 25-4-1985. PW 4 Gurubux Singh, PW 7 Sohan Lal & other witnesses did not say that those witnesses were present at the time of alleged incident. In such circumstances, the factum of their being declared as hostile is per se not sufficient to hold that prosecution story is false or concocted. PW 4 Gurubux Singh deposed that on the day of alleged occurrence, he alongwith Ganesh Ram & Sohan Lal had gone to harvest the crops of Sanwanta Ram and that by the time the appellants came there, they had already cut the crops in about one & a half bighas of the field, that at about 3 P.M. appellants Sarjeet Singh and Jagjeet Singh aimed with Gandsis alongwith two other persons with lathis, whom he did not know, came there in a camel cart. He stated that in another camel cart appellant Jagraj Singh armed with a Gandasi also came there and that he was accompanied by a lady, who remained sitting in the camel cart. He further stated that at that time Ganesh Ram was lying asleep under a tree (Berry) in that field, and that seeing the appellants Sanwanta Ram's wife & daughter, who were picking up grass nearby, fled away. He also stated that the appellants alongwith the said two other persons went to Ganesh Ram, that appellant Sarjeet Singh inflicted a Gandasi blow on his head and that other appellants also caused injuries to him by Gandasis and lathis. Gurubux Singh deposed that at that time he was standing one and a half bighas away from the place of the incident, that when he and Sohan Lal drew near to rescue Ganesh Ram, the appellants threatened to kill them, and that thereupon he whithdraw from there, but kept on standing at a distance at about 1 Murabba (which is equivalent to 55 x 5 = 275 yards). He further deposed that after inflicting injuries to Ganesh Ram the appellants fled away, that thereafter he along with Sohan Lal lifted him, who was bleeding profusely and took him to Dharampal's Dhani, and that from where they took him in a tractor to the Government Hospital Tibbi, where the doctor declared him dead. This witness has been cross-examined at length, but his testimony has remained intact. This witness has been cross-examined at length, but his testimony has remained intact. There is no material improvement or omission in the version given by him in the F.I.R. Ex. P. 15 or his police statement Ex. Dl. The learned Sessions Judge has rightly held him a reliable witness. 7. Shri Garg has argued that Gurubux Singh and Sohan Lal have admitted that while they picked up Ganesh Ram. their clothes were stained with blood, but the Investigation Officer did not seize their clothes. Similarly Gurubux Singh has admitted that drops of blood had fallen down on the ground when Ganesh Ram was being brought from the place of occurrence to Dharampal's Dhani. On the other hand PW 6 Subhash Chandra, Investigation Officer has clearly stated that he did not see any blood in the way. According to Shri Garg, these facts fairly establish that Gurubux Singh and Sohan Lal were not present at the time of alleged incident. We do not find any force in this argument. Firstly, the Investigation Officer had found blood-stained earth at the place of incident, where Ganesh Ram was lying injured. He had seized and sealed the blood-stained soil along with control sample vide seizure memo Ex. P. 18. This fact has also been well proved from the statements of Gurubux Singh and Subhash Chandra Investigation Officer. Secondly, Subhash Chandra has clearly stated that due to dusty winds, he did not find any trail of blood in the way from the place of incident to the Dhani of Dharampal. The Investigation Officer had inspected the site on 16-4-1985. Hence, in our opinion, this explanation is quite plausible and satisfactory. It would have been better for the Investigation Officer to have seized the blood-stained clothes of Gurubux Singh and Sohan Lal but merely for this lapse on his part it cannot be held that Gurubux Singh and Sohan Lal were not present at the time of occurrence and the entire prosecution case cannot be thrown over board. 8. Shri Garg has also argued that in the memo of site-plan Ex. P. 17A,the Investigation Officer has neither mentioned that the crops standing in the field had been harvested, gathered and put in bundles nor seized the reaped crops. 8. Shri Garg has also argued that in the memo of site-plan Ex. P. 17A,the Investigation Officer has neither mentioned that the crops standing in the field had been harvested, gathered and put in bundles nor seized the reaped crops. According to him, there exist material contradictions in the testimony of Gurubux Singh & Sohan Lal, and that of Investigation Officer on this material fact and hence their presence becomes highly doubtful. It will suffice to add that P.W. 6 Subhash Chandra in his cross-examination has admitted that when he inspected the place of occurrence, he had found that wheat crops from one side of that field had been harvested. However, he added that he did not find the harvested crop there. The alleged incident had taken place on 15-4-1985, while the Investigation Officer inspected the site on the next day i.e. on 16-4-1985 and as such this possibility cannot be ruled out that the harvested crops might have been removed by some body. Therefore, from a mere non-mention of gathered harvested crop in bundles in the site-plan Ex. P. 17, it cannot be held that Sohan Lal and Gurubux Singh were not present in the said field at the time of the alleged incident. In our considered opinion, it was not all necessary for the Investigation Officer to have recovered and seized the harvested crops and as such there is no material discrepancy in the prosecution evidence on this count. 9. From the evidence recorded in this case, it stands well established that Revati & Jamna had fled away after seeing the appellants. Mere over, the Additional Public Prosecutor submitted an application dated 20-12-1985 before the trial Judge, wherein he had specifically mentioned that the said witnesses had been won over and that they had colluded with the appellants and hence he did not want to examine them. Thus, a reasonable explanation was also given by the prosecution for their non-production. The said application was neither opposed by the appellants nor they filed any application to examine them as court witnesses or as defence witnesses. Apart from it, the testimony of Gurubux Singh has been well corroborated by the medical evidence and by recoveries of Gandasis at the instance of the appellants. 10. The said application was neither opposed by the appellants nor they filed any application to examine them as court witnesses or as defence witnesses. Apart from it, the testimony of Gurubux Singh has been well corroborated by the medical evidence and by recoveries of Gandasis at the instance of the appellants. 10. In Dalbir Kaur v. State of Punjab AIR 1977 SC 472 a reasonable explanation was given by the prosecution for non-examination of some material witnesses in a murder case. No application was made before the trial court or even the High Court for examining these witnesses as court witnesses or as defence witnesses, However, such an application was filed before the Supreme Court during the course of arguments. The actual occurrence was proved by the independent witnesses and their evidence was fully corroborated by the medical evidence and recovery of weapons at the instances of the accused persons. The Supreme Court held that omission to examine material witnesses, who were not deliberately with-held or unfairly kept back, in such circumstances, was not sufficient to throw doubt on the prosecution case. 11. Similarly are the facts and circumstances in the case in hand. Hence, non-production of Revati & Jamuna is not fatal as it does not seriously and adversely affect the prosecution case. 12. As regards Sohan Lal, his name finds mention in the F.I.R. at the earliest opportunity. However, for the reasons best known to the Investigation Officer, he was not examined under section 161 Cr.P.C. His name was also not included in the calender of witnesses. On the other-hand, during trial Gurubux Singh deposed that Sohan Lal was harvesting the crop alongwith him and was present at the time of the alleged incident. The Additional Public Prosecutor also filed an application dated 28-4-1986 before the trial Judge praying that the statement of Sohan Lal be recorded. The learned trial Judge keeping in view all the relevant facts and circumstances of the case came to the conclusion that Sohan Lal was a material witness and that it was essential for the just decision of the case to examine him. He, therefore, by his order dated 8-7-1986 accepted the said application and examined him. 13. In Ram Lakhan v. The State of Rajasthan, 1980 Cr. L.R. (Raj.) 33 , one Sugar Singh was not examined under section 161 Cr. P.C., while he was a material witness in the case. He, therefore, by his order dated 8-7-1986 accepted the said application and examined him. 13. In Ram Lakhan v. The State of Rajasthan, 1980 Cr. L.R. (Raj.) 33 , one Sugar Singh was not examined under section 161 Cr. P.C., while he was a material witness in the case. It was held that though even if a witness was not examined during the investigation of the case and was produced by the prosecution. h;s evidence cannot be held to be inadmissible. It was however, observed that it was the bounden duty of the Investigation Officer to examine material witnesses under section 161 Cr. P.C., because an accused is denied of his valuable right to cross-examine and contradict such a witness with his previous statement recorded under section 161 Cr. P.C. Therefore, Sohan Lal's statement cannot be out-rightly rejected simply on the ground that he was not examined under section 161 Cr. P.C. It can not also beheld that his statement is inadmissible in evidence. However, the statement of such a witness should be closely & carefully analysed and scrutinised and such evidence can be used for corroboration purpose. 14. We have carefully read the statement of Sohan Lal in extenso. In our considered opinion, the learned trial Judge has discussed, analysed and evaluated the testimony of P.W. 7 Sohan Lal in a right perspective and correctly held that he was present at the time of alleged incident, that he is a reliable witness and that he has substantially corroborated the sworn testimony of Gurubux Singh. 15. The ocular evidence of P.W. 4 Gurubux Singh & P.W. 7 Sohan Lal has been fully corroborated by the testimony of P.W. 5 Dr. Devi Lal, who has specifically stated that incised wounds on the left parietal and occipital region of Ganesh Ram causing severe and extensive injuries to brain were individually as well as collectively sufficient to have caused his death in the ordinary course of nature and that the said injuries could have been caused by a Gandasi. 16. P.W. 3 Balram Jat & P.W. 6 Subhash Chandra have proved the recoveries of weapons of alleged offence, namely Gandasis at the instance of each appellant from his house and proved their respective information memos Ex.P.21 & Ex.P.23 and recovery memos Ex.P.12 to Ex.P.14. 17. 16. P.W. 3 Balram Jat & P.W. 6 Subhash Chandra have proved the recoveries of weapons of alleged offence, namely Gandasis at the instance of each appellant from his house and proved their respective information memos Ex.P.21 & Ex.P.23 and recovery memos Ex.P.12 to Ex.P.14. 17. Subhash Chandra, Investigation Officer has also proved the report of the Patwari Halka Ex.D2, wherein he has specifically mentioned that Kila Nos. 3 to 9 and 12 to 14 measuring 10 bigha commaud land situated in Murabba No. 312/355 of Chak No. 6 A.G. were permanently allotted to Sanwanta Ram, but as per revenue record the said field was cultivated by appellant Jagraj Singh. Thus, definitely there was a dispute between Sanwanta Ram and appellants in respect of the said field and when Sanwanta Ram's labourers Ganesh Ram, Gurubux Singh & Sohan Lal harvested the said crops, naturally the appellants had a grievance. Thus, the motive to commit the murder of Ganesh Ram was evident. However, simply by unauthorised cultivating crop on a field, which was permanently allotted to Sanwanta Ram, appellants did not have any right of private defence of properly to commit murder. The trial court has, therefore, rightly held that no right of private defence accrued to the appellants to commit such a heinous offence. 18. In this case, the F.I.R. was lodged promptly. P.W. 4 Gurubux Singh has deposed that he & Sohanlal lifted Ganesh Ram to the Dhani of Dharampal from where he was taken in Dharampal's tractor to the Govt. Hospital Tibbi, where the doctor declared him dead, and that thereafter, he went to the police station and immediately lodged F.I.R. Ex.P. 15. P.W. 6 Subhash Chandra hae stated that Gurubux Singh gave him oral information on 15-4-1985 at about 6.45 P.M. The Police Station, Tibbi is about 24 Kms. away from the place of occurrence. The incident had taken place on that day at about 3.30 P.M. Thus, there was practically no delay in lodging the F.I.R. and no occasion or opportunity too for making any improvement or embellishment in the prosecution story. There is also not a fringe of evidence or circumstance from which it can be inferred that the F.I.R. was scribed after the investigation. 19. Hence, for the reasons mentioned above, there was neither any manipulation in the F.I.R. Ex.P. 15 nor the prosecution evidence suffers from any infirmity or improbabilities. There is also not a fringe of evidence or circumstance from which it can be inferred that the F.I.R. was scribed after the investigation. 19. Hence, for the reasons mentioned above, there was neither any manipulation in the F.I.R. Ex.P. 15 nor the prosecution evidence suffers from any infirmity or improbabilities. In our considered opinion, the learned trial Judge has discussed, analysed and evaluated the prosecution evidence in a right perspective and properly appreciate all the circumstances of this case and has not committed any illegality either of fact or of law in convicting the appellants for the offence punishable under section 302/34 I.P.C. 20. In the premise of the above discussion, this appeal is devoid of any force or any substance and the same is hereby dismissed.Appeal dismissed. *******