JUDGMENT G.S.N. Tripathi, J. - Both these appeals arise out of judgment dated 15-7-1978 passed by the then IV Additional Sessions Judge, Bijnore in S. T. No. 185 of 77 of that district. 2. Accused Altaf Manihar, Altaf Jhojha, Zamir Ahmad, Wazira and Ibrahim stood charged under Sections 148, 302/149 and 307/149, 1. P. C. 3. The prosecution case started on the basis of a written F. I. R. dated 1-8-1977 made by Shamim Ahmad, complainant. He has alleged that he is a resident of Mohalla Jainul Abedeen of town Afzalgarh, district Bijnor. His sister Smt. Razia was married to Mushtaq Ahmad alias Chhanga (deceased). Accused Altaf is married to the Bhanji of the complainant Snit. Nafisa. Snit. Nafisa called Smt. Razia at her house about a month or so ago. Earlier (prior to 1-6-1977 at her house, the accused Altaf Manihar tried to misbehave with Snit. Razia. However, she retained his virtues and came out. She complained about this misconduct of the accused Altaf Manihar to the complainant as well as her husband. These two persons had taken exception to this misbehaviour of the accused and on several occasions altercations had taken place. Parties had lodged reports against each other. However, no report was lodged against this misbehaviour towards Smt. Razia in order to avoid bad name towards that lady. The accused Altaf Manihar formed a company of some law-breakers and was in search of an opportunity to assault the complainant and his brother-in-law Mushtaq alias Chhanga. 4. On 1-8-1977 at about 7 p. m., the complainant and Mushtaq alias Chhanga as well as Irshad alias Chhottey (both deceased) were at the shop of Ahmad Hasan, PW 3, and were purchasing some articles. The accused Altaf Manihar, Altaf Jhojha and Zamir Ahmad appeared all of a sudden. They started abusing the complainant and Chhanga. Chhanga asked them not to do so. Thereupon Altaf Manihar and Altaf Jhojha took out knives from the belt-portion. They pounced upon Chhanga and caused multiple knife injuries to him. Abdul Razik, along with Irshad alias Chhottey, tried to catch the accused but the accused Zamir caught hold of Abdul Razik alias Uddu. He exhorted other two accused to kill him. Thereupon both the accused (both Altafs) caused knife injuries to him. In this very process accused Zamir also received injuries at the hands of these two Altafs. Hearing alarm Abdul Razik came there. He exhorted other two accused to kill him. Thereupon both the accused (both Altafs) caused knife injuries to him. In this very process accused Zamir also received injuries at the hands of these two Altafs. Hearing alarm Abdul Razik came there. They wanted to arrest the accused but these accused caused knife injuries to Irshad and Abdul Razik also. Thereupon no body dared to challenge the accused. Alarm was raised. The accused escaped. The dead body of Mushtaq alias Chhanga was entrusted to the family members and the complainant came with the remaining three injured persons to the Police Station for lodging the report. 5. On the basis of the written F. I. R. chik was prepared at P. S. Afzalgarh on 1-6-1977 at 19.45 p. m. The distance of the Police Station is half a kilometre. The case was registered in the G. D. and the injured persons were referred to the hospital for medical examination. Dr. Dayal medically examined Irshad in the same night at 0.30 a. m. and found the following injuries on his person : 1. Stab wound size 4 cm X 3 cm X cavity deep on right side of abdomen, 0'8 cm away from umbilicus. Omentum is protruding out. Bleeding presented G. C. poor. Nature - Dangerous. Duration - Fresh. Caused by-Sharp pointed weapon. Abdul Razzaque was examined by him at 0-20 a. in. The following injury was found on his person 1. Stab wound size 3 cm X 1.0 cm X cavity deep on the left side of chest 5.5 cm below and lateral to the left nipple. Nature - Dangerous. Duration - Fresh. Caused by - Sharp pointed weapon. Abdul Razique was examined by him at 0.55 a. m. The following injuries were found on his person 1. Stab wound size 3.5 cm X 2.0 cm x cavity deep on left side of chest 7 cm medial to the left nipple. 2. Incised wound size 5 cm X 2.5 cm X muscle deep on the left thigh. 17 cm above the left knee joint. Nature - Inj. No. (1) Dangerous (2) Simple. Duration - Fresh. Caused by - Sharp pointed weapon. The I. 0. took the investigation in his hands. He recorded the statement of complainant and the injured persons and proceeded to the spot. There he took the dead body of Mushtaq alias Chhanga in possession. 17 cm above the left knee joint. Nature - Inj. No. (1) Dangerous (2) Simple. Duration - Fresh. Caused by - Sharp pointed weapon. The I. 0. took the investigation in his hands. He recorded the statement of complainant and the injured persons and proceeded to the spot. There he took the dead body of Mushtaq alias Chhanga in possession. After sealing the same and preparing the inquest report, he sent the same for post-mortem examination. Dr. N. M. Pandey, Radiologist, District Hospital, Bijnor conducted the post-mortem examination on the dead body on 2-6-1977 at 4.30 p. in. and collected the following data Average build. Mouth partly open eyes closed. Rigor mortis present in both upper and lower limbs. Much less in upper limbs. Nails and hairs fixed. No decomposition. He found the following ante-mortem injuries on the dead body. 1. Stab wound on It. side chest 1" X 3/10" X chest cavity deep, J V' below and inner to left nipple. Margins are clean cut and exposing the muscles which are clean cut. The 4th rib is clean cut. The heart is punctured from anterior to posterior side (on both sides) chest cavity on left side is containing clotted blood. (blood about 1. 1b). The left plura and left lung is clean cut. 2. Stab wound on left side chest I" x 3/10" x chest cavity deep and is 1 below and inner to injury No. (I) and is " away from mid line. On exposing, the 6th rib is clean cut the muscles, the plura and the lung are clean cut on left side. Lateral border of the sternum is also clean cut. On internal examination, he found that peritoneum and pericardium were clean cut. The stomach contained digested food about 2 ozs. The intestine contained partly faecal matter. In the opinion of the Doctor, the death was caused due to ante-mortem injuries aforesaid which were sufficient in the normal course of nature to cause the death. Death would have been caused about a day earlier. 6. Irshad succumbed to his injuries on 6-6-1977 in the District Hospital, Bijnor. The I. O. prepared the inquest report and took the dead body in his possession, sealed the same and sent it for post-mortem examination. 7. Dr. N. M. Pandey conducted the post-mortem examination. on 7-6-1977 at 10-30 a. in. He has opined that it was a full fledged body. The I. O. prepared the inquest report and took the dead body in his possession, sealed the same and sent it for post-mortem examination. 7. Dr. N. M. Pandey conducted the post-mortem examination. on 7-6-1977 at 10-30 a. in. He has opined that it was a full fledged body. Rigor mortis was present and decomposition has set in. He found the following ante-mortem injuries on his person ; 1. Stitched wound on right side abdomen 6" in length starting from right iliac fossa going upto epigastricem in mid place with 10 (ten) inches lateral to mid place and is oblique 4/10" lateral to mid place) are exposing the wound, it is abdominal cavity deep. Margins clean cut. The part of omentum 'absent. The greater omentum at places adhered with the loops of bowels badly. Stitched two places present in the omentum (on removing the stitches, wound is 6" x 3/10" X abdominal cavity deep. No other injury seen. 8. The stomach contained about 2 ozs. of coloured fluid. In his opinion, the death was caused as a result of preitonities on account of the ante-mortem injuries which were sufficient in the ordinary nature to cause the death. 9. Before his death, the dying declaration of Irshad was recorded by CW 1, Sri Karar Husain, Executive Magistrate on 2-6-1977 at about 10.45 a. m. He had stated therein that while returning from the mosque, he saw the accused Altaf Manihar and Altaf Jhojha, Zamir, Wazir and Ibrahim, who were talking to Mushtaq alias Chhanga. He himself asked them not to do anything evil on account of party bandi and thereafter Altaf Manihar caused him knife injuries. He ran towards his house, met Razik. So was the case of Abdul Razzak also. Chhanga was also injured by knife. 10. After the usual investigation, the I. 0., submitted the charge-sheet against the 5 accused aforesaid. The prosecution relied upon the following evidence: PW 3 is Ahmad Husain. Near his shop the incident took place. He has given an eye-witness account of the incident. He knew the accused from before. PW 4 Shamim Ahmad is the complainant. He too has stated about the incident from beginning to end. He lodged the report and moved the machinery of law. PW 5 is Abdul Razik, an injured witness. He has given an eye-witness account of the incident. 11. Other evidence is formal in nature. He knew the accused from before. PW 4 Shamim Ahmad is the complainant. He too has stated about the incident from beginning to end. He lodged the report and moved the machinery of law. PW 5 is Abdul Razik, an injured witness. He has given an eye-witness account of the incident. 11. Other evidence is formal in nature. PW 1 H. C. Brijpal Singh recorded the chik report and G. D. on 1-6-1977 at P. S. Afzalgarh on the basis of the written F. I. R. lodged by Shamim Ahmad, PW 4, PW 2 Dr. N. M. Pandey has proved the post-mortem reports of Chhanga as well as Irshad. He has opined that the injuries were caused by knife. 12. PW 6 is the I. O. Sri Veen Singh Rana. He has proved the investigation process from beginning till end and the documents connected therewith. 13. PW 7, Constable Rajendra Prasad has proved the G. D. entries of 6-6-1977 at P. S. Kotwali which were prepared after receipt of information that Irshad was dead. CW 1 Executive Magistrate, Karar Husain has proved the dying declaration dated 2-6-1977 of Irshad. 14. The accused in their statements have, denied the allegations against them and have deposed that on account of enmity they have been falsely implicated. 15. Accused Altaf Manihar has stated that other accused are his friends or co-horts. The allegations of enmity or motive have also been denied. Additionally he said that PW 4 Shamim Ahmad was not present on the spot. He does not know whether he lodged the F. I. R. However, he admits that Irshad died in hospital. The witnesses have deposed against the accused on account of the influence and fear of the police. Additionally he has said that on 1-6-1977, the father-in-law of his sister had died. He had gone to bury the dead body and was returning home along with Kalva. He reached near the mosque where he was confronted by Chhanga and Irshad. They started abusing him and took out knives from their belt portions and caused injuries to him. He snatched the knife from Irshad and in that process Irshad received injuries. Razak, Irshad and Razik pounced upon him with knives. It was dark so he could not say whose knife caused injuries to whom. In self-defence he used the knife. He had also reported the matter, and was also medically examined. He snatched the knife from Irshad and in that process Irshad received injuries. Razak, Irshad and Razik pounced upon him with knives. It was dark so he could not say whose knife caused injuries to whom. In self-defence he used the knife. He had also reported the matter, and was also medically examined. 16. Accused Altaf Husain had lodged the report at P. S. Kotwali, Bijnor on 2-6-1977 at 12.20 p.m. He has arrayed (PW 5) Irshad and Chhanga (both deceased) and Abdul Razak as accused therein. In the report lodged by Altaf Manihar he has alleged that all the accused aforesaid (mentioned in the F. I. R.) belonged to Afzalgarh town. In that town he has his parchun shop. Chhanga used to take goods from him on credit. The amount swelled to Rs. 100. Thereupon he refused further credit to Chhanga. On account of it Chhanga became inimical towards him. All the four accused had formed a gang against him. Chhanga had reported the matter to the police. He had also sent two complaints to the S. P. He had assaulted the father of the accused and also his mother. Thereafter he has described the incident as noted above in his statement under Section 313, Cr. P. C. He has alleged that he was kicked and fisted by the accused aforesaid and also knived by them. He has further stated that on account of fear from the accused, he did not go to P. S. Afzalgarh to report the matter. He reached Bijnore clandestinely and succeeded in reporting about the incident. He was medically examined by Dr. S. K. Agarwal on 2-6-1977 at about 3.30 p. m. The following injuries were found in his person ; 1. Contusion 2 cm X I cm in right supraclavicular fossa linear. 2. 3 abrasions in an area of 6 cm X 1 cm on left side of chest upper part. 3. Contusion 5 cm X 2 cm on the front inner aspect of left side upper arm. 4. Abrasion 6 cm X li; cm on the front and lower. of left forearm. 5. Incised wound 3 cm X I cm on front and terminal portion of right thumb. All injuries were caused by blunt object except No. 5 caused by sharp weapon. Simple. Duration one day about. Accused Altaf Manihar lead no oral evidence in defence. 17. 4. Abrasion 6 cm X li; cm on the front and lower. of left forearm. 5. Incised wound 3 cm X I cm on front and terminal portion of right thumb. All injuries were caused by blunt object except No. 5 caused by sharp weapon. Simple. Duration one day about. Accused Altaf Manihar lead no oral evidence in defence. 17. Accused Zamir Ahmad has also denied the allegations against him. Additionally he has said that he too was returning after the burial on that date. It was by that time dark. When he reached near the mosque, he saw Kalva, Altaf Manihar, Chhanga and Irshad (both deceased) quarrelling with each other. He tried to intervene as of result of which he received knife injuries at the hands of Chhanga and he ran away from the spot and did not know what happened thereafter. 18. Accused Wazir had stated that on account of enmity he has been falsely implicated. The accused Ibrahim and Zamir have also denied the allegations against them and have stated that on account of enmity they have been falsely implicated. 19. After a thread-bare analysis of the prosecution as well as the defence versions and evaluating the circumstances, the learned Additional Sessions Judge came to the conclusion that the charges against Altaf Manihar accused had been fully proved. He convicted him accordingly. Under Section 302, I. P. C. and awarded life imprisonment. Accused Altaf Jhojha, Zamir Ahmad Wazir and Ibrahim were not held guilty of the charges levelled against them. They were acquitted accordingly. 20. Feeling aggrieved, accused Altaf Manihar has filed appeal No. 2174 of 1978. 21. Feeling aggrieved against the order of acquittal passed against the four aforesaid 4 accused, the State of U. P. has filed the Government Appeal No. 2929 of 1978 under Section 378, Cr. P. C. Both the appeals were heard together. 22. After a thread-bare analysis of the evidence and circumstances, it is established that the charges against the accused Altaf Manihar, Altaf Jhojha and accused Zamir Ahmad are proved beyond a shadow of reasonable doubt. Therefore, the appeal of Altaf Manihar deserves to be dismissed. 23. The appeal of the State of U. P. deserves to be allowed against accused Altaf Jhojha and Zamir Ahmad only, whereas, it deserves to be dismissed against accused Wazir and Ibrahim. 24. Therefore, the appeal of Altaf Manihar deserves to be dismissed. 23. The appeal of the State of U. P. deserves to be allowed against accused Altaf Jhojha and Zamir Ahmad only, whereas, it deserves to be dismissed against accused Wazir and Ibrahim. 24. It is also worth mentioning that Ibrahim accused is reported to be dead. Therefore, the State appeal against him abates. 25. Even otherwise, the accused Wazir and Ibrahim were correctly acquitted by the learned Additional Sessions Judge. They have not been named in the F. I. R. Even in the dying declaration of Irshad deceased, no doubt these two accused have been named but no role has been assigned to them. 26. PW 3, Ahmad Hasan admits in paragraph 6 that Ibrahim and Wazir came after the beginning of the marpit. They were simply standing at the place of occurrence. They did not participate in the marpit. He does not recollect that they had any weapon with them. Again he says that they had no weapons. They were standing about 2 and 3 paces apart. Throughout the marpit they remained standing. In these circumstances, the acquittal of the accused Wazir and Ibrahim is maintained. 27. Now we come to examine the prosecution evidence in order to see as to how far it has succeeded in proving the charges against the accused Altaf Manihar, Altaf Jhojha and Zamir Ahmad. 28. The incident took place on 1-6-1977 at about 7 p. m. The. I. R. was lodged in the same evening after covering a distance of about 1} a km. The accused were known to the complainant from before. The marpit took place in which knives were used. Therefore, the accused came very close to the victims. Accused Zarnir Ahmad caught hold of the victim Abdul Rajik, PW 5. A scuffle ensued and that further facilitated the PW 5 in correctly identifying the culprits. It was the month of June. Sun sets at around 7 p. m. There was twilight for about 45 minutes i. e. upto 7.45 p. m. hence there could be no difficulty in correctly identifying the culprits. 29. A look at the site-plan will show that the total distance between the shop of Ahmad Hasan, PW 3 and the mosque is about 20 paces. The incident took place near the shop of Ahmad Hasan at the Kharanja road. 29. A look at the site-plan will show that the total distance between the shop of Ahmad Hasan, PW 3 and the mosque is about 20 paces. The incident took place near the shop of Ahmad Hasan at the Kharanja road. The participants were 3 accused (although two other accused were also standing nearby the 4 injured persons). The place of occurrence is in the midst of the locality where houses of persons are located. So the place of the incident can be safely described of have spread over a distance of about 20 paces. Neither the assailants stood like statues nor the victims. The general tendency is that the assailants would try to proceed towards the victims and victims would try to escape and in this process a distance of about 20 paces is virtually no distance at all. Hence we need not hair-split exercise about the place of occurrence because the entire area between the shop of Ahmad Hasan and the mosque in the west can be safely described as the place of occurrence. It is wrong to say that the place of occurrence should be confined to the place where the actual assault took place. In fact the place of occurrence would also include the places from where the accused started abusing and the victims started objecting and, therefore, this is a case in which the place of occurrence is fixed. The recovery of blood-stained earth etc. further puts a stamp of truth so far this point i. e. the place of occurrence is concerned. 30. As seen earlier, the assailants were known to the victims from before. The complainant also belongs to the same locality. He knew them quite well. Therefore, when he reported the matter to the police at the earliest it will he presumed that he would not leave the real culprits and substitute them by false accused on account of same ulterior motive. This is the inherent beauty of a prompt F. I. R. 31. Another beauty of this F. I. R. is that it contains everything in nut-shell in it, namely, the motive, for the crime i. e. the misbehaviour of Altaf Manihar towards Smt. Razia, the names of the accused, the weapons used, names of the witness, the beginning of marpit, the manner in which the marpit took place, the names of all the injured persons and so on. Therefore, it cannot be said that something basically very important was left out and the case of the prosecution was embellished with the help of legal brains at a later stage. Rather in fact, it appears that everything which the complainant saw and thought fit was mentioned in the F. 1. R. So this F. I. R. becomes an important piece of evidence and can he safely used for corroborating the prosecution case. 32. The time of,the occurrence is also fixed with the help of the medical reports. The statement of PW 5 Abdul Rajik, injured is that the Doctor was not available at Afzalgarh Hospital, therefore, injured were shifted to the District Hospital, Bijnor and this way the medical examination could take place around mid-night on 1/2-6-1977. The injuries of Irshad, Rajik and Razak were found fresh. I n the injuries of Irshad, bleeding was present. This way these injuries were caused around 7 p. m. on 1-6-1977. Therefore, the time of occurrence is also proved. 33. Apart from it, we, can simply mention (although we do not propose to derive any material support) the F. 1. R. of Altaf Manihar in, which he mentioned that the time of occurrence was Magrib i. e. sun set. The place of occurrence was Majhola mosque. The weapons used were knives. Altaf Husain's injuries were examined on 2-6-1977 at about 3.30 p. in. They were found to be abqut a day old. This way also the time of occurrence is proved. In his statement under Section 313, Cr. P.C. a similar version has been given by Altaf Manihar as well as Zamir Ahmad, Altaf Jhojha is silent about these things. 34. The witnesses in this case are semi-literate therefore, they cannot be fastened by their words in order to prove that they are not telling the truth. They gave approximate time and they should be read not according to clock precision but according to common parlance. But one thing is clear that the incident took place soon after Namaz-e-Magrib is recited i. e. soon after sun set. There may be differences of 10 to 12 minutes either way but the time of occurrence was soon after sun set and not beyond that. 35. PW 3, Ahmad Hasan says in paragraph I that there was abundant light at that time. There may be differences of 10 to 12 minutes either way but the time of occurrence was soon after sun set and not beyond that. 35. PW 3, Ahmad Hasan says in paragraph I that there was abundant light at that time. PW 4, Shamim Ahmad complainant says in paragraph 5 that it was about 7 p. m. i. e. approximate to Namaz-e-Maghrib i. e. about 5-6 minutes after this Namaz. 36. PW 5, Abdul Rajik, injured says in paragraph I that it was about 7 p. m. Namaz-e-Maghrib was over. He was sought to be contradicted from his statement recorded by the Executive Magistrate on 2-6-1977 in the shape of a dying declaration, as due to good luck, the witness did not die. Therefore, the statement cannot be used as a substantive piece of evidence but it can be used for the purposes of contradiction only. In paragraph 2 this witness was sought to be contradicted by the learned defence Counsel. In that statement he has said that the incident took place around 8 or 9 p. in. By way of explanation, he says that it was the approximate time given by him because he had neither a correct idea of time then nor now. He does not carry a wrist watch but on this point he is sure that. the incident took place soon after the sun set. He has no idea that the sun set on that date around 7 p. in. but he had given the time of 7 p. in. approximately. Then he was asked as to why he did not tell the Executive Magistrate that it was the incident of around sun set. He has given the natural explanation which must be taken into consideration that on account of severe pain, he could not give the details. A look at his injury report shows that he had received stab injury 3.5 cm X 2 cm X cavity deep on the left side of his chest 7 cm medial to the left nipple. The other injury was on the left thigh. It might not be fatal but it would give pain on account of its dimensions ; whereas, injury No. I was dangerous to his life. Dr. Dayal has mentioned in the injury report itself its nature. Naturally he was operated upon and medical aid was given to him in the night of 112-6-1977. It might not be fatal but it would give pain on account of its dimensions ; whereas, injury No. I was dangerous to his life. Dr. Dayal has mentioned in the injury report itself its nature. Naturally he was operated upon and medical aid was given to him in the night of 112-6-1977. His statement was recorded on the following day. So when he says that he could not give the details on account of pain resulting from injuries, one should not ignore the natural state of his mind and body. After all, he was not writing a thesis, and he was not delivering a lecture. He was asked to tell about the incident and he briefly stated the same before the Executive Magistrate. We do not agree with the learned defence Counsel that on account of these contradictions, the statement of this witness should be ignored. We find that these contradictions had a flavour of unvarnished truth and they fix the time of the occurrence some time, a little after sun set and by that time there was adequate visibility available to the witnesses to identify the culprits correctly. Thus we hold that the date, time and place of occurrence are fixed in this case. 37. PW 5 is Abdul Rajik an injured witness. He says that the shop of Ahmad Hasan, PW 3 is about 100 paces away from his house. So he could easily hear the hot words and the abuses being exchanged, hearing which he reached near the Kharanja road. The sun was set but there was enough light. He saw all the participants in the marpit. Both the Altafs and Zamir were abusing Chhanga. Thereupon Chhanga objected. Both the Altafs exhorted and challenged him, took out knife and assaulted him. Zamir caught hold of Irshad and exhorted other two Altafs to assault him and in this way Irshad was also assaulted. The first victim was Chhanga alias Mushtaq. In the melee, accused Zamir had also received minor injury. Razak came to the rescue of the witness but he too also received injuries. As a result of the assault, Chhanga died on the spot, Irshad died in the hospital, Razak and Rajik survived. 38. In the entire cross-examination the main thrust appears to be to dislodge this witness on the basis of peripheral contradictions occurring in his statement before the learned Executive Magistrate. As a result of the assault, Chhanga died on the spot, Irshad died in the hospital, Razak and Rajik survived. 38. In the entire cross-examination the main thrust appears to be to dislodge this witness on the basis of peripheral contradictions occurring in his statement before the learned Executive Magistrate. We have analysed the evidence, the objections as well as the explanations of this witness. We find that the explanation given by the witness for the so called peripheral contradictions are acceptable. Learned Sessions Judge was not correct in rejecting his evidence, simply on the ground of these contradictions. He has frankly admitted that no injury was caused to Shamim Ahmad, the complainant, PW 4. Further in paragraph 7, he says that the entire incident took place all of a sudden. He could not tell as to how Altaf Manihar was injured but the incident took place towards the northern wall of Madarsa at the Kharanja road. The distance between the shop of Ahmad Hasan and the mosque is only 15 or 20 paces. He had no knowledges if Ahmad Hasan was returning from the burial ground. He is also a Manihar by caste as accused Altaf Manihar. He has no enmity with him. In paragraph 9, he says above 3 and 4 minutes after his arrival, the knife injuries were caused to the persons aforesaid. He has vividly described the incident and the manner in which it took place. Thus he is a 100% reliable witness. His presence on the spot cannot be disputed. His injuries have not been properly explained away. These injuries could not be self-suffered. They were definitely caused at the time around sun set. So he will be the last person to leave away the real culprits whom he definitely identified without difficulty. He has honestly let off two other accused, namely, Ibrahim and Wazir Ahmad, who did not participate in the crime. So it can be safely said that he has not been tutored. He is an unvarnished villager and he has rendered unvarnished truth only. He is not amenable to corrections or improvements. The learned Sessions Judge was not correct when he rejected the testimony of such a natural witness. We think that the solitary statement of Abdul Rajik, PW 5 is sufficient for recording conviction against the accused in this case. 39. PW 3 is Ahmad Hasan. He is not amenable to corrections or improvements. The learned Sessions Judge was not correct when he rejected the testimony of such a natural witness. We think that the solitary statement of Abdul Rajik, PW 5 is sufficient for recording conviction against the accused in this case. 39. PW 3 is Ahmad Hasan. His shop opens on the road. It is at distance between 15-20 paces from the mosque. So his presence on the spot is most natural. He says that it was around sun set. Both the deceased were at his shop for making some purchases. Shamim Ahmad complainant also arrived there. Thereupon the accused Altafs and Zamir started abusing Chhanga. On objection being raised, they assaulted him. First Chhanga fell on the ground. Thereafter Rajik was fastened and injured. Irshad tried to save but he too was injured by Altaf Manihar, Rajik and Razak were victims of knife injuries. Zamir and Wazir did not participate, in the crime. So he describes the manner in which the marpit took place and also the beginning of the same. He admits that Zamir and Altaf Manihar also received injuries in this affair but not at the hands of the victims as the prosecution alleges but at their own hands. Abdul Rajik had been fastened. Naturally he would throw his hands and feet and, therefore, assailants could also received minor injuries. Zamir's injuries have not been brought on record. Altaf Manihar's injuries as seen earlier were equally flimsy in nature. It is important to note here that even though the explanation for such flimsy injuries of Altaf Manihar have been given by the prosecution, the law does not require it to do so. The result is that the witness has given vidid pictorial description of the incident. Once it is found that the presence of this witness is proved, even if he is inimical, his testimony will be branded as "natural" and it will have to be accepted unless it is disproved otherwise. But fortunately the testimony of this witness is supported by a prompt F. I. R., and equally prompt and independent medical evidence, apart from natural and reliable oral evidence. So it is doubly strengthened. It deserves to be accepted accordingly. He had admitted in paragraph 9 that he had joined the Namaz at the adjoining mosque on that date by closing his shop. So it is doubly strengthened. It deserves to be accepted accordingly. He had admitted in paragraph 9 that he had joined the Namaz at the adjoining mosque on that date by closing his shop. Soon after this Namaz within 5-6 minutes, the incident took place. He further says that it takes about 6 minutes in offering the Namaz which is done soon after the sun set. The Namaz is offered enmasse. In that Namaz, Mushtaq alias Chhanga (deceased) and Rajik had not participated but Razak and Irshad deceased had taken part. In paragraph 10, he admits that Chottey Manihar had died on that gery day. He was the samdhi of Ibrahim accused (now dead), Further, he admits that all the injured persons were present at the time of the occurrence. In paragraph 12 he says that all the persons, namely, Shakoor alid Irshad came out of the mosque together. He came to his shop. Irshad and Shakoor proceeded towards their homes. He saw with, his own eyes Altaf Manihar receiving injuries when Abdul Rajik was fastened by accused Zamir Ahmad. Both the accused were causing injuries with knife. Minor contradictions appearing in the statement under Section 161, Cr. P.C. were brought to him but he has given correct and tangible explanation for the same. In paragraph 14, he says that he saw both the accused taking out the knives from the belt region. He could not see whether they had already kept them open or they immediately opened the knives. He had closed his shop soon after hearing the abuses and saw the incident from inside the shop. He hasp again described that Chhanga was the first victim of the knife injuries and he saw the whole incident from a very close distance at his shop. His presence had not been denied. He is a natural witness. He has been cited in the F. I. R. He is not, inimical to the accused nor closer to the prosecution side. Minor contradictions and aberrations apart, there is no valid reason to discard his testimony. The learned lower court has not assigned any tangible reason for rejecting his evidence. 40. PW 4, Shamim Ahmad is the complainant. He has narrated the motive behind the incident and then he describes as to how the incident started as well as concluded. Minor contradictions and aberrations apart, there is no valid reason to discard his testimony. The learned lower court has not assigned any tangible reason for rejecting his evidence. 40. PW 4, Shamim Ahmad is the complainant. He has narrated the motive behind the incident and then he describes as to how the incident started as well as concluded. Although motive has no importance in a case in which eye-witness account is available, but even otherwise, the story regarding the motive given by him cannot be disbelieved, because it is there from the very beginning of the case. Blood was recovered from the spot. So he is a reliable witness. The learned Counsel took us extensibly through the evidence of this witness and dilated a lot on the point as to whether he had closed his shop or he had half closed it or he had not closed it and whether he saw the incident from inside the shop or from outside. We find that these are witness sensed the atmosphere and in order to safeguard his goods, he slammed the doors of his shop to the extent of 50-60% but he saw the incident from near his shop. The material question is that he did not leave the place of occurrence and remained through out there at or near the shop from where he could see the occurrence. Therefore, we reject the hair-splitting argument on this material point. 41. Then the learned Counsel said that this was not the natural passage which had been chosen by this witness on that date. The reason for him to choose the passage was that he wanted to purchase some goods from the shop of Ahmad Hasan. At that time Chhanga and Irshad were also there. He himself was returning from the Municipal Board office where he was employed as a Class IV employee for purchasing biris, cigarettes etc. While returning from his office. There is nothing unnatural. It has not come in evidence that this passage was very longer than any other one, but he is firm on this point that there was no other shop from where he could purchase biris. He says that he was not regular in offering evening Namaz-e-Magrib. While returning from his office. There is nothing unnatural. It has not come in evidence that this passage was very longer than any other one, but he is firm on this point that there was no other shop from where he could purchase biris. He says that he was not regular in offering evening Namaz-e-Magrib. He was asked as to why he did not mention all these details in the F. I. R. We find that these unnecessary details are not noted in the F. I. R. which lodged without delay. One person was dead, three others were fighting for life and were very close to death, so he would not choose to write a thesis in the shape of F. I. R. before he would lodge it and take the injured persons for medical examination. 42. In paragraph 12, he says that the victims could not escape before they were assaulted. He has denied the suggestion that he did not see the occurrence with his own eyes and later on at about 10 p. m. the F. I. R. was registered. He has honestly not implicated Ibrahim and Wazir and that is why he has not totally irrelevant considerations. The named them in the F. I. R. The reason is that they did not actively participate in this crime. He has also explained the injuries of Altaf Manihar, accused, right from the stage of F. 1. R. His earlier statements under Section 161, Cr. P. C. were also put to him. He has given a tangible explanation for the same. 43. The learned Sessions Judge has rejected the statement of Abdul Hasan, PW 3 on the small ground that he did not go to the Police Station to lodge the report about the ' occurrence nor he received any injury. So was the case with the other witness, namely, Shamim Ahmad complainant also. The accused had no grudge against PW 3 or the complainant. So they remained unscathed. Biris and match boxes were not found near the dead body of Chhanga. Therefore, the learned Sessions Judge rejected the oral evidence in paragraph 18. This is again a very superficial approach to the eye-witness account. The law is that the eye-witness account should be disbelieved only when there are cogent reasons for the same. Reasons given by the learned Sessions fudge do not come in that category. Therefore, the learned Sessions Judge rejected the oral evidence in paragraph 18. This is again a very superficial approach to the eye-witness account. The law is that the eye-witness account should be disbelieved only when there are cogent reasons for the same. Reasons given by the learned Sessions fudge do not come in that category. In paragraph 20 of the judgment, the learned Sessions Judge has rejected the evidence of Shamim Ahmad on the point as to whether shop of Ahmad Hasan was fully open or half open. In fact it was not a material discrepancy at all. The learned lower court has also rejected the statement of the complainant on flimsy grounds that he did not chose the road straightway. He has not assigned any valid reason for the same. 44. In paragraph 25 of the judgment at page 22, the learned Sessions Judge has observed as follows : "So if this witness Shamim Ahmad was present at the shop of Ahmad Hasan at the time of occurrence he would not be standing idle in splendid isolation or indifferently watching knife blows landing on the persons of his brother-in-law Mushtaq and Mushtaq's brother Irshad. He would have jumped in and tried to save Mushtaq and Irshad. The fact, that he does not claim to do any such thing, only goes to show that he was not present at the spot at the time of occurrence, regard being had to the common course of human conduct. Another aspect of the same point is that not only he keeps on watching from the Varandah without interfering with the course of events. Even Altaf Manihar and others do not attract him at all. They must have been aware of the relationship and if Shamim Ahmad was present there close by, they were certainly not going to spare him. We find that the complainant goes scot free without a single injury or even any attempt to inflict any injury on his person." The learned Sessions Judge purported to mean that every body was like Vir Abhimanyu. There are persons who do not pounce upon the assailants even when they are committing crimes against their near and dear ones, because they want to save themselves first. The instinct of self preservation is always very strong amongst human beings. We do not know the psychological impact of this incident on the mind of the complainant. There are persons who do not pounce upon the assailants even when they are committing crimes against their near and dear ones, because they want to save themselves first. The instinct of self preservation is always very strong amongst human beings. We do not know the psychological impact of this incident on the mind of the complainant. Even the learned Sessions Judge did not know his antecedents and character. So he mis-judged while making the afore-said observations. 45. In paragraph 27, learned Sessions Judge has branded the complainant as a `chance witness'. This is not correct. After doing office job, returning home is a natural phenomenon. So this witness cannot be said to be a chance witness. 46. On the point of F.I.R., in paragraph 28, the learned Sessions Judge observed that the F.I.R. should have been lodged by the injured witnesses. In absence of it, he suspected the authenticity of the prosecution case, due to over-acting of the 1.0., who allegedly recorded the statements of PWs at the P.S. The learned Sessions Judge found that the prosecution case should be disbelieved and the F.I.R. discarded because the injured persons did not themselves lodge the report. The source of information for the complainant was branded as 'surreptitious' also. This was a very uncharitable comment on the part of the learned Sessions Judge without just reasons. Therefore, the entire reasoning given in this paragraph must be discarded. Another fallacy has crept in the judgment at para 26 wherein the learned Sessions Judge has observed as follows : "However all these assertions became extremely doubtful when looked at in the light of the surrounding circumstances. No signatures of the injured were obtained nor any attesting witness called to attest the statements of all the three injured persons recorded in the case diary, as required by Rule 115 of the police Regulations." The basic feature of the criminal jurisprudence is that a statement given by a witness under Section 161, Cr. P.C. would not be got signed. A wrong interpretation of Rule 115 of Police Regulations has been made by the learned Sessions Judge. 47. The special report has been dealt with at pages 26 and 27 of the judgment. The special report was sent through Constable Gopal Dutt vide G.D. No. 33 of 1-6-1977. The Constable returned at 7.30 a. in. next day after serving the special report. 47. The special report has been dealt with at pages 26 and 27 of the judgment. The special report was sent through Constable Gopal Dutt vide G.D. No. 33 of 1-6-1977. The Constable returned at 7.30 a. in. next day after serving the special report. Even if it is read as 7.30 p.m., it will not make much difference because the Constable would start only in the morning along with the special report. The explanation of the Constable that the tempo had developed mechanical defects in the journey was found to be a lame execuse by the learned Sessions Judge simply because it was not recorded in the G. D. We do not agree with this approach of the learned lower Court. 48. Not only this, the learned Sessions Judge has drawn adverse inferences because the purchas of the case diary reached the S. P. Office late. The explanation of the Constable concerned was not called for as to when these purchas were sent. Even then the adverse inference was drawn. This is again a fallacy in the learned lower Court's judgment. 49. This way we find that the learned Sessions Judge has discarded the prosecution evidence specially the testimonies of direct eye-witnesses on most flimsy grounds, We find that the eye-witness account given by the witnesses is reliable in this case and it deserves to be accepted. On the basis of this evidence only the conviction is recorded against accused Altaf Manihar and Altaf Jhojha and Zamir Ahmad. 50. Apart from it, there is dying declaration of Irshad recorded by the learned Executive Magistrate on 2-6-1977 at 10.45 a. m. The declarant has said that he returned from the burial ground and then he went to the mosque and all the five accused were near the shop of (PW 3) (as it is the only shop in that locality). He has said that Altaf, s/o Ibrahim (Manihar) gave him a knife injury. He also said that Rajik, Razak and Chhanga were also assaulted. The learned defence counsel has stressed too much on the sequence of the description. Whereas, according to F.I.R., the first victim was Chhanga, but, according to this dying declaration, he was the last victim. We find that this is not the correct approach to this document. He also said that Rajik, Razak and Chhanga were also assaulted. The learned defence counsel has stressed too much on the sequence of the description. Whereas, according to F.I.R., the first victim was Chhanga, but, according to this dying declaration, he was the last victim. We find that this is not the correct approach to this document. While deciding a case on the basis of will or dying declaration, the court has to sit in the arm chair of the person concerned. Irshad had received fatal injuries. He was in the midst of agony. His concern was to tell the name of his assailants and this is what he did. Other things are ancillary or secondary in nature. They could have been even left out. The sequence as given by this declarant cannot be said to be a final word. He could not have seen the entire occurrence very carefully. Therefore, the statement should not be stretched too much like a piece of rubber. The chronology of the incident as given in this dying declaration should not be read as the sequence of incidents as they took place, rather a total view of the entire set of incident has to be kept in mind and it has to be inferred that the declarant wanted to say something which he knew but it will be an unjust and improper approach to discard this dying declaration on the simple ground that the sequence of incidents as they took place, has been changed. We do not agree with the learned Counsel for the accused for giving this technical interpretation to this sacrosanct document. 51. At page 35 in the judgment, the learned lower Court has rightly rejected the defence arguments on the so called basic differences in D. D. There was no tutoring either done or possible in that circumstances because the victim was in the midst of agony. Moreover, the Hon'ble Supreme Court in Mannu Raja v. State of M.P., 1976 SCC 376 has clearly, opined that the dying declaration should not be a thorough description of the entire prosecution case. It depends upon the perception and capacity together facts and re-produce them and this capacity will differ from man to man. We find that the learned Sessions Judge has given cogent reasons for accepting they dying declaration. 52. It depends upon the perception and capacity together facts and re-produce them and this capacity will differ from man to man. We find that the learned Sessions Judge has given cogent reasons for accepting they dying declaration. 52. After a thread-bare analysis of the prosecution evidence and circumstances, we agree with the learned Sessions Judge that the dying declaration should be accepted as an important piece of evidence against the accused Altaf Manihar only. His conviction can be based solely on this testimony. 53. Other evidence on the record too clearly proves the participation of these three accused, namely, Altaf Manihar, Altaf Jhojha and Zamir Ahmad and this evidence can be easily said to be beyond a shadow of reasonable doubt. 54. We accordingly, convict the accused Altaf Manihar, Altaf Jhojha and Zamir Ahmad on charges under Section 302 read with Section 34, I.P.C. and sentence them to undergo life imprisonment. 55. The appeal of Altaf Manihar fails. He is on bail. His bail bonds and surety bonds are cancelled. He shall be taken into custody forth-with. 56. The appeal of the State against accused Altaf Jhojha and Zamir Ahmad succeeds. They have been left off by the learned Sessions Judge. They shall be re-arrested to serve their sentences. 57. The appeal of the State against Wazir and Ibrahim fails. 58. The C. J. M., Bijnor shall comply with the order of this Court with' two months after receipt of this judgment and send compliance r ort tot this Court accordingly.