Judgment S. H. S. Abidi, J. 1. -criminal Appeal No.220 of 1990 has been preferred by accused Asbofc Kumar and Ratan Prasad and Criminal Appeal No.227 of 1990 by Ram Pravesh Kumar alias Pravesh Kumar against their conviction under Sec.302/149 and 307 of the Indian Penal Code (for short ipc) and section 27 Arms Act and sentences of rigorous imprisonments for life and three years under the respective counts. Criminal Appeal No.222 of 1990 has been preferred by Rajo Mahto against his conviction under Sections 302/149 and 307 IPC and 27 Arms Act and the sentences of rigorous imprisonments for life, ten years and five years under the respective counts. Criminal appeal No.241 of 1990 has been preferred by accused Ramdeo Mahtoa and ganauri Mahton against their conviction under Sec.302/149 IPC and 27 arms Act and sentences of rigorous imprisonments for life, and three years under the respective counts. Accused Oanauri Mahton has further been convicted for the offence under Sec.302/209 ipc and sentences to undergo rigorous imprisonment for life and Criminal Appeal Nos.287 and 288 of 1990 have been preferred by accused Shailjamand Prasad and Nawal Prasad against their conviction under Sec.302 IPC and 27 Arms Act and sentenced to undergo rigorous imprisonments for life and sentenced to undergo rigorous imprisonment for five years under the respective counts. As all these appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. 2. Birendra Prasad, the informant (P. W.2) had given a fardbtyat (Ext.4) on 11-2-1988 at 9.45 P. M. at P. S. Rajgir to A. S. I. Ramdeo Pandey (not examined) which formed the basis of the FIR (Ext. S) registered on 12-2-1988 at 10.20 A. M. at P. S. Silao, district Nalanda. The informant has said that on 11-2-1988 at about 8.30 P. M. he and his brothers Ramadhin prasad and Lakhan Prasad (both Killed in this case) were eating food in the dalan of his house towards east when all the eight appellants came armed with country made pistols, guns and rifles in the dalan and accused Ganauri mahton asked them to kill all ("sab logon ko bboon do" ). On his saying so, all from their weapons, fired indiscriminately. On his saying so, all from their weapons, fired indiscriminately. Shailjanand Prased fired two shots at Ramadhin Prasad, Nawal Prasad fired at Ram Lakhan Prasad, rajo Mabton fired with his country made rifle hitting at the stomach of the informant, who on getting the injuries got down beneath the chouki. Others with their firing prevented the villagers. The accused persons thinking that all were dead, went away through the gall. The appellants wen seen in the light of the lantern and so identified. Upon firing on the villagers, bholiji, Bachuji (both not examined), Jitendra Kumar (P. W.4) and others came running who saw the occurrence and identified the accused persons. At the time of the occurrence, Mitblesb Kumar (P. W.3) who was studying in the eastern adjoining fcothri, saw the occurrence. On coming of the witnesses, he (informant) was taken out from beneath the Chouki. Both the brothers died on the spot where their dead bodies were lying. The accused had fired on account of land dispute. 3. The Investigation of the case was taken up by A. S. I, Jai Kesho sharma (P. W.6) who sent the fardbeyan to P. S, Silao for registration. Injury report of the informant was already prepared by A. S.1. Ramdeo pandey and so, the injured was sent to Rajgir hospital for treatment, but on account of serious condition of the injured, he was sent to Patna Medical college and Hospital (for short PMCH ). The Investigating Officer then went to the spot on the same night at about 11.15 P. M. and inspected the place of occurrence in the light of lantern with the help of the choukidar and the wife of the deceased. He found two choukies. He prepared the inquest report and sent the dead bodies for post mortem examination. He examined the witnesses also. After completing the investigation, he submitted the charge sheet against the appellants. 4. The accused persons, in defence, denied the prosecution case and alleged that they have been falsely implicated in this case on account of enmity. Five defence witnesses have been examined in this case out of whom, d. W.1 Daroga Rai is a typist and has proved the copy of the plaint of t, S. No.160 of 1985. D. W.2, Ram Lakhan Prasad, a clerk of an advocate has proved the affidavit in the said suit. Five defence witnesses have been examined in this case out of whom, d. W.1 Daroga Rai is a typist and has proved the copy of the plaint of t, S. No.160 of 1985. D. W.2, Ram Lakhan Prasad, a clerk of an advocate has proved the affidavit in the said suit. D. W.3 Inder Kumar, a court peon, is laid to have taken notices to the other party. D. W.4 is Ramachandra prasad, who has proved the sale deed and D. W.5 Ram Ratan Singh has proved the other documents. 5. The prosecution, in support of its case, examined seven witnesses. P. W.1 Dr. Pradeep Kumar had conducted the post-mortem examination of the deceased Lakban Mahto and Ramadhain Mahto on 12-2-1988 at 4 and 4 20 P. M. and submitted his post-mortem report (Exts.1 and 1/1 ). P. W.2 is Birendra Prasad, the informant and injured himself. P. W.3 mithlesh Kumar, then is all years old child who has said to have seen the occurrence from the room where he was studying and P. W.4 Jitendra Kumar has also deposed as an eye witness. P. W. S Umesh Narain Jba, constable, had taken the dead bodies for post-mortem examination, P. W.6 /ai Kesho sharma is the Investigating Officer who after completion of the investigation, had submitted the charge sheet. P. W.7 Dr. Dhanush Dhari had medically examined Birendra Prasad on 12-2-1988. 6. The learned trial court, after considering the entire material on record, convicted and sentenced all the appellants as said above. 7. Mr. Prakash Narain Pandey, learned counsel for the appellants in criminal Appeal Nos.222, 227 and 241 of 1990, has contended that the prosecution case about the FIR being recorded at 9.45 P. M. , is not proved as the officer-in-cbarge is said to have returned at 9.45 P. W. whereas the investigating Officer has said that he returned at about 9.45 P. M. and by then, the entire statements had been recorded ; the prosecution case about the occurrence being at about 835 P. M. and the injuredbeing taken to rajgir hospital at a distance of about 3 kms. in the dark night on a cot. in the dark night on a cot. is not worthy of reliance, the Investigating Officer is said to have despatched the fardbeyan to P. S. Silap but it has been registered at the Silao police station on 12-2-1988 at 10.20 A. M. and further that it reached the court on 14-2-1988, even the constable or Muharrir who had taken the fardbeyan to p. S Silao, has not been examined, the formant instead of going to the hospital, he went to the police station which shows the lodging of the case was most upper in his mind and then FIR has been given by the informant who is an employee of the Civil Court. The fardbeyan is a detailed one with minor details and so, it appears to be a prepared document. It has been further contended that the occurrence is of Ashtmi that is of the dark night on 11-2-1988 and that too a winter night which shows that there was no light. It has been further contended that one lantern in the dalan and one in the kothrl is said to be there but no chair or stool was found by the investigating Officer in the dalan or room though he found dhibri (small lamp) in the dalan. Three empty cartridges are said to have bee n found in the Sehan out side the dalan. In the inquest report, prepared by the Investigating officer, he has not shown the hands of the deceased bismearred with dal or rice and no food was found. Motive is not made out from the material on record. The statements of the witnesses are at variance and the two eye witnesses were not present on the spot and they, specially, P. W.4 could not see the occurrence and so, bis evidence is not reliable. Mr. Chitranjan sinha arguing for appellant, Ram Pravesh Kumar in Criminal Appeal no.227/90 has said that no case under Sections 302/149 IPC and 27 Arms act has been made out. No previous enmity was there with Ram Pravesh against demolition of the ridge by the informant and the appellant is not related to the other accused and bis only role is of firing in the sky. No previous enmity was there with Ram Pravesh against demolition of the ridge by the informant and the appellant is not related to the other accused and bis only role is of firing in the sky. Farther, no independent witnen has been examined and the explanation fot nonexeinination that they have been won over witnesses, it not sufficies and that the presence of P. W.4 on the spot is also not made out. For the appellants of Criminal Appeal Nos.287 and 288 of 1990, their learned counsel Mr. Rajendra Prasad Singh has contended that T. S. No.160/85 claiming 1/3 ihare, was still pending and so, motive was not there to the appellants. The prosecution witnesses are not giving correct version. There was no custom of taking food on chouki. The order of conviction of the appellants is bad as not supported by the material on record. Even the mother of P. W.3 who was serving the food, has not been examined Identification of the appellants was not possible in the light and in the situaton of the case. Even the place of the occurrence is doubtful Semi-digested food was found which shows that the food had been taken 11/2 hrs. before the occurrence P. W.3 and 4 are not reliable and truthful witnesses and have contradicted each other. To appreciate these contentions of the different learned counsel for the appellants, the entire evidence will have to be scrutnised with care and caution. 8. P. W.2, Birendra Prasad, the informant of this case, has said that on 11-2-1988 at about 11.30 P. M. he was at the dalan facing south, and towards east and west of the dalan were two kothria and the doors were opening in the dalan. In dalan Ram Lafehan Prasad and Ramadhin Prasad were present and in the eastern kothri, Mithlesh Kumar was reading and jitendra Kumar was teaching him. He (P. W.2) was sitting on a chouki and eating with Ram Lakhan Prasad and Ramadhin Prasad was lying after taking meal. Suddenly, from the eastern side, 7-8 persons armed with guns and rifles came. Accused Ganauri Mahton ordered to all to kill all whereby, appellant Shaljanand Prasad firmed at Ramadhin, who got badly injured. Appellant Nawal Prasad also fired one shot at Ram Lakhan who badly injured nd fell on the choukl. Suddenly, from the eastern side, 7-8 persons armed with guns and rifles came. Accused Ganauri Mahton ordered to all to kill all whereby, appellant Shaljanand Prasad firmed at Ramadhin, who got badly injured. Appellant Nawal Prasad also fired one shot at Ram Lakhan who badly injured nd fell on the choukl. Appellant Rajo fired from his country made pistol at the informant hitting in his stomach, on account of firing he fell between two chaukies and went beneath. Appellant Ratan Prasad had pirtol and the other accused had got country made gun. The were firing in the sly. Ha identified the appellants in the light of the two lanterns, one kept on the chair in verandah and the other lantern in the kothrl Mithlesh Kumar was reading. The appellants thought them all to be dead and then they went away. Villagers Bacbaji, Bholiji both not examined) and Jitendra (P. W.4) and mithlesh Kumar (P. W, 3) came and put him on the choukl. His both brothers we lying dean on the choukl. The occurrence had taken place on account of the land of Rampati Devi whose 8 decimals land was under batai cultivation of the informants family and at the time of the occurrence, in that land, onion was shown and Rampati Devi wanted to take away the land from them and Ganaurmahton had gone to plough the said land. Ram Lakhan Prasad (deceased) had unyoked his plough about two months earlier. The appellants Shailjanand and Nawal Prasad are son-in-laws of rampati Devi. He was taken on a cot to the police station, Rajgic by Jitendra, Bholaji. Bachuji and Malo Gope. At P. S. Rajgir, his statement was recorded by Ramdeo Pandey A SI, upon which he put his signature being ext, 2. Then he was taken to Bihar Sharif Hospital where be was given bandage and in the same night, he was sent to Patna Medical College and hospital (for short PMCH) where he was treated and remained there upto 3-3-1 88. Again, he went to PMCH on 30-3-1988 and was admitted. Ho had gone to the hospital where his bullet was extracted. He was discharged from the hospital on 1-4-1988 and he was given discharge slip (Ext.3) by pr. R. K. Agrawal. Again, he went to PMCH on 30-3-1988 and was admitted. Ho had gone to the hospital where his bullet was extracted. He was discharged from the hospital on 1-4-1988 and he was given discharge slip (Ext.3) by pr. R. K. Agrawal. In crow-examination, he has said that he knew Bhatu mahton of village who got one brother Radhey Mahton who died about 7-8 years ago and it was not correct that i. e died ia the year 1and50. He did not know any sister of Bhatu Mahton, named was Jagpatia. Radhey Mahtons wifes name was Rampati Devi. There was partition in between Bhatu mahton and Rampati Devi but he did not Know if it was a registered partition in the year 1981. His dalan is towards south of the village. The exit of his zanani kita is towards north and the main door is towards west. Rameshwar mahton, the mother-in-law of appellant Shailjanand and Nawal and Baohu prasad are all gotieas. Adjacent to the dalan and kohri zanani kita adjacent east, is a gall going towards north. Bholi Mahtons house is towards east after the gall. There were two choukies north-south at the door of his dalan, one was towards east and the other towards west. The eastern chouki was 3 ft. towards west of the eastern kothri and the other choukl was towards west and in between the two choukiest 2 ft, distance was there and that was the western kothri which was closed where some goods were kept. He was sitting on eastern choukl. Ram Lakhan was sitting beside him and both of them were eating in the same Thali. One or two minutes earlier, than the arrival of the accused, food was being served by the wire of Ram Lakban and after serving, she bad gone inside. Ramadhin had taken food 1/2 hr. earlier and then he and Ram Lakban were taking food and he had seen him eating. He was there from 8-10 minutes earlier than the arrival of the accused and before that, he had not gone to the village. He had not said to the police that ramadhin was lying on the other choukl after taking met), He had not said to the police that be and his brothers were taking food sitting on the chouki. He was there from 8-10 minutes earlier than the arrival of the accused and before that, he had not gone to the village. He had not said to the police that ramadhin was lying on the other choukl after taking met), He had not said to the police that be and his brothers were taking food sitting on the chouki. There was no other dispute with Oanauri Mahton except the batai land and also no dispute with the other accused Ramdeo, Ratan, Ashok, Prakash and raho except the batal land. The accused came through gall and got upon the dalan which has five dars Where Ramadhin was lying, was appellant sbaljanand towards south of the chouki Accused Oanauri Mahton was towards west of the choukl, appellant Ramdeo came in the dalan and remained behind and appellant Ratan Prasad, Ashok Kumar and Ram Pravesh Kumar were also behind. Appellant Rajo Mahton was towards 11/2 fts. south of his Chouki. Nawal was towards southern dor. He noticed the accused persons when they got upon the floor of the dalan through the bricked stair-case. Some were on the stair-cax and some had came in the dalan. They had not raised alarm. They came to dalan swiftly and before their arrival, be could not see that all persons were coming, On coming in dalan, they did not say anything to him he did not remember if on comimg of the accused persons, Mithlesh had come out from the eastern kothri. On the coming of the accused persons, the informant and others stopped eating. He had said to the police that Mithlesh was being taught by Jitendra and that 7 or 8 persons came armed with guns, rifles, and pistols in the dalan. He had said that the land in front of the dalan was 2 fts. higher than the dalan and it was not correct that the dalan was four feets below of Sehan. The lantern was kept at a height on a chair. The lamp from with Mitblesh was reading, throwing light put bide and it was wrong to say that the light was not there. On the coming of the accused and ordering by Oenauri, and others, be did not get opportunity to run away. He did not remember if any of the accused had gone to the eastern kothrl or bad fired from there. On the coming of the accused and ordering by Oenauri, and others, be did not get opportunity to run away. He did not remember if any of the accused had gone to the eastern kothrl or bad fired from there. Oanauri Mahton, on getting on the stairs, exhorted to fire, then the accused persons got up in the dalan, Nawal, Shailjanand and rajo fired upon him and others and the rest of the accused persons fired in the air. The accused persons were firing serially and not indiscriminately out side the dalan. Other accused fired but their shots went towards south and no damage was caused to the dalan on account of firing by the accused. The accused remained in the dalan for about 11/2 minutes. He denied to have laid in the fardbeyan that acouied Ganauri Mahtou on entering in the dalan asked all the appellant to kill all (sab logon ko bhoon do) and so, the accused fired from their weapons, Shailjanand had double barrel gun and other accused were firing in the air. Rajo had a country made rifle which he identified well. He has not said in the FIR that Rajo had fired at him by country made rifle, He aimed the gun at him and on getting the injuries, he was in lenses. The injury hit him in the stomach which started bleeding. He did not ran but fell down and then no accused fired at him. He had said to the police that he had fallen between the two choukies. The firing continued in his dalan for about a minute. The accused persons by their firing, were terrifying the villagers from going to the spot. He had not said to the police that Rajo had fired from a country made pistol or that he had concealed himself below the chouki. There were about 8-10 firings in all. First of all, Ramadhin got injuries but he (informant) did not raise alarm and he got bewildered. The Lakhan Prasad got gun shot, yet he (informant)did not raise alarm. Ramadhin was restless. Both the brothers, on getting injuries, were restless on the chouki. He did not get opportunity to conceal himself anywhere. He was in senses even on getting the injuries. It was not correct that Shaljanand and Nawal had got no enmity. Shaljanand usually live at Tilaiya and Oanauri Mahton also used to come. Ramadhin was restless. Both the brothers, on getting injuries, were restless on the chouki. He did not get opportunity to conceal himself anywhere. He was in senses even on getting the injuries. It was not correct that Shaljanand and Nawal had got no enmity. Shaljanand usually live at Tilaiya and Oanauri Mahton also used to come. He denied that Nawal has got land in Nausa but he did not Know if he goes to Nausa. Nawal and shaljanand had got their in-laws house in his village, at the house of Rampati kuer who is a relation of Gotia) Ramadhin Mahton and Bhattu Mahton are ml brothers and after the death of Lakban Mahton, Bhattu Mahton got his land separated from Rampati Kner. But he did not Know if there was any registration after the partition between Nawal and Shaljanand. His father began to cultivate the land of Rampati Kuer. But he did not Know if some woman by name of Jagpati Devi was set up as a sitter of both the brothers and so a title suit bearing No.160/85 was filed on 20-7-1985 and that on 23-7-1985, from Jagpati Devi 6 bighas of land were got wtitten, which was the share of Rampati Devi, by him (informant) and others from her. He (the informant) and others had not obtained possession on the same. It was not correct that 8 decimals of land of Rampati Devi was not being cultivated by the informant and others as bataidar and that he and others were quarrel" ing over the batai land and that Oanauri Mahton wanted to cultivate this land and they were taking advantage of the weakness of the lady. He could not say if IPF has got influence in his area and that rifle of Awadh Bihari was snatched away. It was also wrong to say that in this occurrence, there was hand of the naxalites and to grab the land of the lady, her bataidars and persons have been implicated in this case and that at the time of the occurrence, he was not there and that he got injuries else where. It was not correct that Ram Lakhan was not doing any service of any Mahajan. He used to live at Patna. It was wrong to say that be was doing service and had ran way with lacks of rupees of Mahajan. It was not correct that Ram Lakhan was not doing any service of any Mahajan. He used to live at Patna. It was wrong to say that be was doing service and had ran way with lacks of rupees of Mahajan. It was also wrong to say that in this case. Ramdeo and Oanauri bad got no bands but others had got hands. In cross-examination, on hebalf of appellant Ram Pravesh Kumar and Ashok. he has said that he was putting on glass after the occurrence and at the time of the occurrence, he had got no injuries in his eyes. It was not correct that be was putting on glass a year than earlier. When he saw the accused for the first time, they were eight in numbers. The accused persons, after injuring him and others, were terrifying the villagers by firing and they began to mo away towards east where there is basti, He had got no land adjarent to that of Ram Pravesh. He does not know if he had got any plot No.1568 which has common boundary with plot No.1572 belonging to the appellant and ram Pravesh and Ashok had no concern with the land about which this occurrence is said to have taken place ard that it was also wrong that on account of this land, there were two parties in the village. He could not say about Tauzi No. , khata No, and plot No. of the land about which there is dispute though he can say about the boundary. He has got 12 bighas of land besides the 8 decimals land of Rampati Devi and he and others used to cultivate the same land on batai. It was wrong to say that he was the biggest cultivator of the village and that they and other did not take lands on batai. It was wrong to say that he did not get service. One of his brothers is working as a Government servant at Patna. It was not correct that he and others wanted to take away tha lan is of Rampati Devi and so, ho and others got lallan murdered before this occurrence through one Nagina Rajwar on payment and when the payment was not made, there was an enmity with Nagina rajwar, who is a naxalite. He had identified the appellants in the light of the lantern. He had identified the appellants in the light of the lantern. It was wrong to say that the accused have been falsely implicated. He knew Dr. Iqbal Ahmad and his report and signature, though on being shown to him. he did not identify any writings of the said doctor. He has got no friendship nor visiting terms with him nor he was a student with him nor he had got any grudge with him. When be had reached PMCH he was not unconscious. He could not say if Dr. Iqbal Ahmad is alive nor he tried to Know about the same. 9. After the lengthy statement of the informant who has been subjected to cross-examination on behalf of the different appellants, the other witness, to be considered, is Mithlesh Kumar, P. W.3, the son of one of the deceased lekhan Prasad, then aged about 11 years, who has deposed as an eye witness. On questions by the court about the oath, he has said that by saying on oath means that one should not apeak lies and on account of telling lies, knowledge does not come. On this answer, the court presumed that this witness was able to give answers properly after understanding the things This child witness has said that at the time of occurrence on 11-2-1988 at about 830 P. M. he was being taught while sitting in his kothrt of the dalan by his brother Jitendra. In the dalan his father, Lata Lakhan prasad and his uncles, Birecdra Prasad and Raomdhin were taking food. Then Oanauri Mahton came from there and he said to Bill all. He, on looking towards him, saw in the dalan 7-8 persons (appellants), armed with nun pistol and rifle. Then they Killed his father and uncle. Shailjanand fired from his gun at Ratnadhin, his uncle. Appellant Nawal fired at his father Rajo fired from his gun at bis uncle. On getting the gun injuries, his father and uncle Ramadhin fell down. Birendra fell down beneath the chouki The others fired in the air and then they went away towards east. He claimed to identify all the accused persons. His uncle and father were taking food on chouki and his mother was serving food to them. On getting the gun injuries, his father and uncle Ramadhin fell down. Birendra fell down beneath the chouki The others fired in the air and then they went away towards east. He claimed to identify all the accused persons. His uncle and father were taking food on chouki and his mother was serving food to them. He identified the accused persons in the light of two lanterns out of which, one was kept in kothri in which he was reading and the other was where his father and uncle were taking food. In cross-examination on behalf of accused Ram pravesh and Ashok, he said that the kothrt where he was studying, has two-doors one towards west, opening in the dalan and the other towards north opening inside the house. Besides this kothri other ways are for going to dalan from the house. One of the exit of the house is towards west and one of the exist of zanani kita is to wards east and not north. The dalan was towards kothri where he was studying. There is no way to zananl kita through the kothri towards west of the dalan. Just infront of the dalan, there is a tank towards south which remained full of water in the rainy season only but there wes no water in the tank at the time of the occurrence. His mother was serving food to his father in the dalan, going through the kothri where he was studying. Immediately, after firing her mother came from zanani kita to his kothri At that time, hi brotbess Jitendra was teaching hint mathematics. He heard first the sound of Oanauri Mahton then he stopped reading. He did not go out and began to peep out by the side of the door towards dalan. He did not remember if the night was dark or bright. He peeped therefor about 11/2 minutes. H; did not go in side the house nor informed others. All the accused had come in his dalan. The accused persona had not covered their faces and when the accused were in the dalan they did not catch bis uncle or father not they ran to catch him also. He and other did not raise any alarm. After the going of the accused, Birendra Prasad was brought up from the ground on the cot. The accused persona had not covered their faces and when the accused were in the dalan they did not catch bis uncle or father not they ran to catch him also. He and other did not raise any alarm. After the going of the accused, Birendra Prasad was brought up from the ground on the cot. The door of the room in which he was reading opened towards zanani kita and there was none else in the kothri besidee him and Jitendra. The length of the da Ian, east west is 20 ft. and 8 to 81/2 ft. in width. He and Jitendra did not talk to any of the accused before firing. They were seeing from the kothri and they did not go out from the room. He could not say as to who amongst the accused came first. There was no talk between his uncle and accused. They came, fired and ran away and the whole affair took about 11/2 minutes. This occurrence was not seen by any one except him and Jitendra After the going of the accused persons, he, Jitendra and among the villagers Bachuji, Bholiji took out birendra from beneath the chouki and he was taken on a cot to Rajgir. Then he was studying in A. S. Imperial Hindi School there. Others were firing in the air. He could not say from now much they were firing and he could not say also as to who fired in the out side. He had said to the police that his father and uncle Ratnadhin fell down on getting injuries and that they accused bad fired in air. He had not said to the police that his mother was serving food as he was not asked about the same. He had said to the police that he was then reading in the kothri and a lantern was barning there and there was mete lantern where his father and uncle were lying, The villagers came after 2-3 minutes and he could not give out their names except bachuji, Bhola Mahton and Lachho Singh. He could not say that there was previous enmity with the accused persons or not. He did not know as to why the accused did so. He could not say as to how much cultivation he has got but cultivation is done in has family. He could not say that there was previous enmity with the accused persons or not. He did not know as to why the accused did so. He could not say as to how much cultivation he has got but cultivation is done in has family. At his house, about 9-10 labourers were there and out of them one Anil Kumar is of his village and the other is Parmeshwar. He has got two bulls and one cow. Accused asbok is his relation. He did not know about accused Ram Pravesh Kumar. It was wrong to say that he was giving out false statement due to enmity and also that he was not reading at that time nor Jitendra was caching him and that he had not seen the occurrence. In cross-examination on behalf of ganauri Mahton and Ramdeo Mahton, he could not say as to how Oanauri mahton was related to him. Oanauri Mahton was a big landlord and Ramdeo was his nephew and that both of them live together. He was deposing before the court for the first time and he had given statement before the police also. He was examined by the police after one day of the occurrence beneath the baniyan tree. In this case, his uncle Birendra is informant and he did not know as to what he deposed and he had not seen any paper in connection with this case though he was meeting Birendra daily and he had not laid about the case. There were two choukies in the aalan and both were adjacent to each other and in between the choukies, there was a distance of 2-3 ft. On one chouki there was bed while notning was on the other. On the western chouki was the bed upon which Ramachin was lying, covering himself by a quilt and on the eastern chouki, his father and uncle were taking food. On the asking of Ganauri Mahton to kill all, firing was done at his uncle and father who could cot get up as they did not get opportunity to get up. There was hole in the quilt (nehali) but there was no mark of firing in the same. The bed had got little blood. His father was covering his face with chadar which had not any bole on account of firing. There was hole in the quilt (nehali) but there was no mark of firing in the same. The bed had got little blood. His father was covering his face with chadar which had not any bole on account of firing. His uncle Birendra was not lying unconscious, but bleeding was there but much blood had not fallen, while taking up Birendra, he and Jitendra did not get blood stains. He got afraid on asking of Ganaud Mahton to kill all. He did not attempt to run away nor tried to close the door. His father used to live in Patna about six months earlier than the occurrence and was doing private service. He did no. know as tb where his father was working. He was examined only before the Investigating Officer. He had taid to the police that Ganauri Mahton had come and asked to kill all. Lallan Mabton of his village is said to have died. He did not know if he was looking after the cultivation of Rampati Devi and that there was enmity between the family and Ganauri Mahton and that he had got the maximum land in the village. He did not remember his date of birth. It was not correct that he was about 16 years old and he was minimising his age or that there was no hands of the accused persons in the murders of his father and uncle. On further cross-examination on behalf of the accused Nawal. Shailjanand and Rajo and also Ratan. he has said that he has got several pints of land but he could not say if there was any field of Bachu around his field. He also did not know as to what is a naxalite. On the day of the occurrence, there were 11-12 members in the family and among the male members, there were two uncles, his father, Jitendra, Saryug Babu is his uncle who had came to the house much earlier than the occurrence. He lived in Bihar Sharif. His wife had died earlier and he had not remarried. He was studying in the kothrl, sitting on a cot with his face towards west and the lantern was towards west on a stool which was on the land. The lantern continued to burn during the occurrence The lantern Same was not minimised and both the lanterns were old. His wife had died earlier and he had not remarried. He was studying in the kothrl, sitting on a cot with his face towards west and the lantern was towards west on a stool which was on the land. The lantern continued to burn during the occurrence The lantern Same was not minimised and both the lanterns were old. During the occurrence, he and bis brother, Jitendra, were inside the kothrl. He was seeing by standing adjacent to the door and behind him, was Jitendra. He had seen gun, pistol and rifles He could not say as to whether Nawale gun was licenced or not but was of double barrelx and so, was accused Shailjanand and Rajo. First of all Ramadhin got gun shot and then his father and then Birenara. His father and uncle died immediately on getting the gun shot. He had not said to the police that Shailjanand had fired at Ramadhin, and Nawal bad fired at his father and that Rajo had fired at Birendra and that all had brought gun. All were firing but whose fire hit whom, he could not say. He did not know as to who are naxalites. 10. P. W.4, Jitendra Kumar has also deposed as an eve witness and has said that on 11-2-1988 at about 8 30 P. M. he was coaching his cousin mithlesb, suddenly he heard the voice of Ganauri Mahto to kill all. There were 8 appellants armed with country made gun, rifie and pistol. In the dalan, there were Ramdhin, Lakhan and Birendra lying on the western chwki and Lakhan and Birendra were eating on the eastern chouki. Nawal fired at Ramdhin from his gun and so Shailjanadan fired at Ramdbin, Raja fired from his country made rifle at Birendra and rest of the accused were behind them, Ramdhin and Lakcan Prasad died immediately on getting gun shot. Birendra fell down between the two choukies, The accused thinking them to be dead, went away towards east. After their going away, Baohu Prasad, bholi Mahton and Malo Gope came. He and Mithlesh after coming in the kothrl, picked up Birendra and put him on a cot. Bachu Prasad, Bholi Mahton and Malo Gope told him that they had seen a)l the named appellants running away. After their going away, Baohu Prasad, bholi Mahton and Malo Gope came. He and Mithlesh after coming in the kothrl, picked up Birendra and put him on a cot. Bachu Prasad, Bholi Mahton and Malo Gope told him that they had seen a)l the named appellants running away. Then Birendra was taken on a cot to Rajgir police station where fail statement was recorded and wherefrom he was referred to Bihar Sharif and from there, he was sent to P. M. C. H. He identified all the aroused. In cross-examination on behalf of Ganauri Mahton, Ramdeo Mahton he has said that Malo Oope was the chokidar of the village whose house was about 10-12 houses ot the dalan of the informant and in those 10-12 houses, many persons were living. One Barhan was at about 250-300 yards from his dalan and in between there is parti land. Rajgir police station is about 3 kms from his village where Birendra was taken on cot by them. He has said that when they reached the police station at about 10 P. M. no blood had fallen. When he was teaching mathematics to Mitblesh bis face was towards west-south and mitbleshs face was towards north. The Latern in the kothrt, was on a table which was towards west of the cot at a distance of about one hand. He did not come out of the room. The northern door of the room was not obstructed because of the table or cot. About If months earlier then the occurrence, there was dispute with Ganauri Mahto about the 8 decimal land but there was no dispute and not marpit and there was no report at the police station. Ganauri Mahto had no land on batal from others. At the time of getting fire, Ramadhin Prasad was lying on the ehouki and Ram Lakhan was taking food sitting on the western part towards west-south of the choukt. He had seen the occurrence from the side of the door plank of the western door of the kothrt. He was examined by the police on 16th of February and not on the day of occurrence. He had said to the police that 7-8 persons had come to the dalan and he bad identified them in the lantern light. Ramadhin was lying on western chouki and rest of the accused were firing in the air. He was examined by the police on 16th of February and not on the day of occurrence. He had said to the police that 7-8 persons had come to the dalan and he bad identified them in the lantern light. Ramadhin was lying on western chouki and rest of the accused were firing in the air. It was wrong to say that in the murders of his unele and father, there was no hand of Ganauri Mahto and Ramdeo Mabto but It was by professional killers. In cross-examination on behalf of Nawal and Sailjanand, accused, he has said that Birendra (P. W.2) had seen him coaching Mithlesh and so also the ladies of the house who were taking the food. He had not heard any alarm or trouble before the arrival of the accused persons on dalan and he did not raise any alarm on hearing the voice of the amused persons. He got terrified on hearing to kill away and on account of fear, he did not attempt to go out through the zanani kita to raise alarm. No accused had come to the kothri where be was He had not closed the door on account of fear and whatever he had seen from the kothri standing by the side of the door. He did not raise alarm through the window as the same was closed. He did not call out his aunt or any woman of the bouse. All the accused persons whom he had seen bed come to the dalan and they were not firing in the air. He did not try tc apprehend them on coming out. The choukies were noth-south in the dalan. Every way was 6"x3". The way to the dalan was through the middle of the room in which he was. The accused persona were in the southern side of the dalan and Ganauri Mahto was in the western side. On the coming of the accused persons in the dalan, none of his uncles put any question to them nor raised any alarm. The lantern was in the dalan towards north-eastern corner. Except Ganauri Mabto none bad said anything. There was about 8-10 firings in about 11/2 minutes and thereafter, the accused persons went away thinking them dead. During this time, none of the ladies came nor any villager came there. He was looking after the cultivation since 5-6 years. The lantern was in the dalan towards north-eastern corner. Except Ganauri Mabto none bad said anything. There was about 8-10 firings in about 11/2 minutes and thereafter, the accused persons went away thinking them dead. During this time, none of the ladies came nor any villager came there. He was looking after the cultivation since 5-6 years. He had not said to the police that the occurrence was seen by him from the kothrt being adjanoent to the door and it was not correct that be had not seen any occurrence and falsely implicated the accused persons. He had not said to the police that he came to the dalan from the eastern koihri. It was also not correct that he had given such statement to the police to become an eye witness, it was not correct that be had given statement to the police that he had gone in-iide the kothri. He is related to Bachu, Rameshwar and the mother-in-law of accused Shailjanand and Nawal. He denied to have heard the name of Jagpatia Devi and it was no correct that his uncles had got a sale deed in respect of any land of Jagpatia Devi. He could not say if there was any registered partition between Rampati Devi and Bbattu Mahto, He did not Know if there was any title suit beating No.160/85 filed on 20-7-1985 by Jagpatia Devi against rampati Devi and Bhattu Mahton and that on 23-7-1985, Ram Lakhan mahto had got registered sale deed in respect of the land of the share of rampati Devi from Jagpatia Devi and it was also wrong that to oust rampati Devi from the village, he and others had forcibly occupied the land of Rampati Devi. He denied the suggestion that he had not seen the occurrence, nor identified the accused persons or that the terrorist have got hands in the murder or that falsely implicated the bataidars of Rampati devi and her sons-in-law. In further cross-examination on behalf of other accused Ashok Kumar, Pravesh and Ratan Prasad. he has said that at tbat time of the occurrence, the door of the kothri and also the zanani kita, were open and be did not raise any alarm while reaching. He saw first of all oanauri Mahto who was at a distance of 4-5 hands towards south-west corner at the stair-case. He did not come out on hearing the sound. He saw first of all oanauri Mahto who was at a distance of 4-5 hands towards south-west corner at the stair-case. He did not come out on hearing the sound. He had not up from the cot from the western door nor he tried to close the door. After the sound of Oanauri Mabto all the accused persons got up in the dalan. None of the accused had covered their fao. g. He or Mithlesh did not try to go in the zanani kita nor anybody came from zanani kita. It was not correct to say that Accused Ashoft Prasad, or Ratan Prasad were not present at the time of the occurrence and tbat they have falsely implicated these appellants on account of enmiiy. 11. Besides the statement of these three prosecution witnesses, who have been subjected to cross-examination by all the accused persons, there is the post mortem reports (Exts.1 and 1/1) dated 12-2-1988 given by Dr. Pradeep Kumar (PW 1) who had examined Ram Lakhan Mahto at 4 P. M. He has said about the injuries of Laiban Mahto as follows : (i) Lacerated wound 1" x 1" with margin ragged invested with charring over the right cheek bone just below the right eye. This wound was one wound of entry. (ii) Right eye ball was lacerated and sunken in the eye shooket; (iii) Lacerated wound 2" x 11/2" margin invested on the right lower, part of the occipital bone. This wound was the wound of exit. One dart of used bullet was taken out from this wound. This wound was communicating injury No.1. On dissection, he found fracture of right Maxillary bone, right temporal bone and occipital bone. Brain tissues of the right half was lacerated and fall of blood clotts. Right eye was lacerated. Stomach contained semi digested food about 6 ox. Bladder is empty. Small intestine contained gas and fluid and it was pale. Large intestine contained gas and fecal matters. Left chambers of heart was empty. Death in his opinion was doe to shook and haemorrhage in the injury to the vital organ i. e. brain caused by fin arm such as gun or rifle. Time elapsed since death was within 24 hours. Injury No. (i) was itself sufficient in the ordinary course of nature to cause death and injury No. (ii) may be result of injury No. (i ). Time elapsed since death was within 24 hours. Injury No. (i) was itself sufficient in the ordinary course of nature to cause death and injury No. (ii) may be result of injury No. (i ). On the same day at about 4. JO P. M. , he held the post-mortem examination of the dead body of Kamadhin Prasad and found the following antemortem injuries; (i) Lacerated wound with regard margin which was invested with tattering mark arround it over the 6th inter coastal space two inch below and two inch lateral to the right nipple. This wound was the wound of entry ; (ii) One wound 3" x 3" with lacerated and evested margin on the outer margin of right scapula on the back. This wound wai the wound of exit of injury No. (i) ; (iii) One oval wound of one inch in diameter, evested margin with charring around it on the back side of the right hip bone. It was also a woond of entry and (iv) One oval wound 14" in diameter with evested margin on the left side of the back i. e.6 inches below the angle of the left scapula. This was the wound of ext. injury No. (iii) and (Iv) were communicating to each other. On dissection fracture of the 5tb, 6th and 7th ribs, plural cavity of the right side was full of blood. Right lung was lacerated right scapula was fractured. One dart material from wound no (ii) was taken out. Stomach contained semi, digested food about 6 onz. ladders was empty. Livers, spleen, kidney were pale, small intestines contained gas and fluid. Large intestine contained gas and fecal matter. All viscera were pale. The death in his opinion was due to shock and haemorrhage caused by above noted injuries caused by fire-arms which might be gun or rifie. These injuries were sufficient to cause death in the ordinary course of nature. Time elapsed since death was within 24 hour. Dart material taken out from wound No. (ii) was sealed and sent for the needful by carrying constable. In cross-examination, he has said that injuries found on the persons of the deceased Ramadhin Mahto could have been caused in the state of lying position. Iniury Nos. (i) and (ii) both could have been produced during the course of lying position. Injury Nos. In cross-examination, he has said that injuries found on the persons of the deceased Ramadhin Mahto could have been caused in the state of lying position. Iniury Nos. (i) and (ii) both could have been produced during the course of lying position. Injury Nos. (i) and (ii) on his person was communicating to each other and so was the case with injury Nos. (iii) and (iv)which could have been also caused in lying position. All the four injuries had been caused by two shots. He had not mentioned the kind of semidigested food in his post mortem report. He had not mentioned the name of the cereal of food graines name in his post mortem report. He had also not mentioned the kind of fire-arm that produced the above injuries in his post mortem report. In further cross-examination, he has said that the digestive system stops functioning immediately after death, charring was caused in case of injuries caused by fire-arms from a close range, if the injury is caused by a person to a person in sitting position and if the shooter is at higher level than the person shot at the trend of injury would be downward and the injury would be caused in upward direction if the person shot is at higher level than the shooter. Injury is caused according to the size of the projectile. The wound of entry would be smaller in proportion to the size of projectile and the wound of exit would be larger. The urinary bladders of both of the deceased were found empty by him at the time of post mortem examination which suggets that they have urinated before the assault. 12. P. W.7, Dr. Dhanusdhari is said to have medically examined the injured (informant) Birendra Prasad (P. W.2) on 12-IM988 in the PMCH at 1.30 A. M. and had found the following injury : Lacerated wound of 2" x 1/2" penetrating to the chest cavity. Over the anteror wall of the lower chest left side surrounding skin was charred. Air was coming out from the chest, from the wound hissing sound was present/ He has also said that the patient was x-rayed on bis advice. Abdomen was X-rayed X-ray plate No.2460 showed gas under diaphragm. Mettalic shadow like bullet in left lumber area. X-ray of chest was again taken cm bis advice. The X-ray plate No.2462 showed haemopheumotbrox. Air was coming out from the chest, from the wound hissing sound was present/ He has also said that the patient was x-rayed on bis advice. Abdomen was X-rayed X-ray plate No.2460 showed gas under diaphragm. Mettalic shadow like bullet in left lumber area. X-ray of chest was again taken cm bis advice. The X-ray plate No.2462 showed haemopheumotbrox. The patient had been referred to PMCH by the Medical officer, Bihar Sharif Hospital vide Registration No.136 dated 11-2-1988. He has also showed the S. O. D. Book (Surgeon on Dutu Book) of PMCH. The details of the examination of the patient are noted in the said book during the examination of the patient. The entry No. ERS-786 dated 12-2-1988 is in the pen of the House Surgeon who was on duty at that very time whose name is not remembered by him. He had made this entry on his dictation in bis presence. The entry bore his initial and is marked as w for identification. The injuries of the deceased were caused by fire-arm. In cross-examination, he has said that the patient was not before him that day and be could not say about the kind of exact weapon used in causing the said injuries. 13. P. W.6, Jai Keshav Sham a, the Investigating Officer of this cafe has said that on 11-2-1988 be was posted as officer-in-charge of Rajgir police station and on that day at about 9.45 P. M. , the informant Birendra Prasad along with the village choukidar came at the police station. At that time, the said police station was not notified and still the position is same. He had gone out side from the station but when he returned at about V-45 on the same night, be found the Assistant Sub-Inspector, Rajdeo Pandey recording the statement (Ext.4) of Birendra Prasad which was read-over to the informant who put his signature before him (witness) and on the basic thereof, first information report was registered. He took nway investigation of the case, prepared the injury reports and referred the injured to Referal hospital, Rajgir through a constable but on account of serious condition, he was sent to PMCH. Then on the same night at about 11.15 P. M. , he went to the village Tilaiya, inspected the place of the occurrence with the uid of choukidar and wife of the deceased in the light of the lantern. Then on the same night at about 11.15 P. M. , he went to the village Tilaiya, inspected the place of the occurrence with the uid of choukidar and wife of the deceased in the light of the lantern. The place of the occurrence is the dalan of Birendra Prasad situated at south western portion of the dalan. The dalan is south facing and built of bricks. There were two choukies north south in th dalan. There was one kothri towards east through which one goes to the in; er Angan. fn this room, there was a cot on which house-holds were kept. Towards the dalan. was another kothrl which was closed and the dalan. was about20 x 8 with four round pillars. He found blood below the eastern ohouki which was towatds east of (he kothrl and on which the deceased Lakhan Mahto was found dead and ear the blood 8 billetes where found which were 31/2 fts, in diameter. On the chouki, he found a Thali of brasas in which rice and pulse were mixed and one kansa lota was also found with a spectacle with broken glass and stain of blood was found. On the second chauki, body of Ramadbin Mahto was found. On the bed, 12 bores bullet with blood stained was also found. Beneath the chouki, blood was there. Adjacent to the dalan, there was a sehan with baniyan tree and there is a gall going out whereafter, there is a house of a over-seer and then a surrounded khand of the informant, whereafter, one gait goes and towards east of the dalan, is also a gali tcwads south-west corner is the dalan of Rameshwar mahto. He found the place of the occurrence blood stained. A dark green colour chadar and blood stained piece of floor were also found therefor which the seizure Memo (Ext.6} was also prepared before the witnesses rameshwar Mahto and Sukar Mahto on which they had signed and put his l. T. I. He also seized one khokha of 12 bore gun before the said witnesses. On account of night at the time of the occurrence, the inquest reports (Exts.7 and 7/1) could be prepared only on 12-2-1988. He examined the witnesses. He got the post mortem report and also seized the bullet. On 10-5-1988, informant Birendra Prasad came to him and gave the injury report by Dr. On account of night at the time of the occurrence, the inquest reports (Exts.7 and 7/1) could be prepared only on 12-2-1988. He examined the witnesses. He got the post mortem report and also seized the bullet. On 10-5-1988, informant Birendra Prasad came to him and gave the injury report by Dr. R. K, Agrawal of PMCH. The blood stained ipectaole and chadar with holes and blood stained piece of floor were sent for chemical examination. After completion of the investigation, he submitted the charge sheet. He denied the suggestion that he had not found the broken glasses of spectacles. Ho did not find eny lantern in the dalan but he found a dbibri when be reached there. He did not find any chair in the dalan. He did not find any lantern in the eastern khothri nor any table or chair there. He found books in the eastern kothri but he did not make any entry about the same in the diary. It was not correct that he did not find any boon in the eastern kothri. He did not find any bullet mark on the wall of the dalan. He did not notice if the hand of Birendra Prasad was bismeared with rice and dal. He was present at the time of supervision by the Deputy Superintendent of Police. He examined Kanti Devi wife of Ram Lakahan, deceased, Kusum Devi wife of Ram Lal Mahton, and Sona Devi wife of the informant Birendra Prasad. Jitendra Prasad was examined on 16-2-1988 and Bhpli Mahto and Bachu mahto were examined on 18-4-1988. During the investigation, nothing oame to him to show that from one Jagpatia Devi, deceased Ram Lakhan Mahto bad got a registered deed for half of the land of Rampati Devi. It was not correct that at the time when he posted at Rajgir police station, as the officer-in-charge, he had got information. He said that P. W, 2 Birendra prasad, in his statement before him has said that he and his brothers Ramadhin and Ram Lakhan, were taking food in dalan sitting on the chouki. Ramadhin was lying after taking food on the chouki and Jitendra was teaching mithlesh, P. W.1 had not said to him that 8-9 persons persons armed with unlioenced gun and rifles went up the dalan. Ramadhin was lying after taking food on the chouki and Jitendra was teaching mithlesh, P. W.1 had not said to him that 8-9 persons persons armed with unlioenced gun and rifles went up the dalan. He had said to him that the accused bad come in front of the dalan, and that be had fallen in between the cauouki on getting the injuries, and so got beneath the choukt. He had not said that the accused, aimed wirh their weapons, were stopping the villagers not to oomo on the spot, that Rajo had fired at him with bis country made pistol The witness, Mithilesh had not said to him that his father and uncles fell down on getting injuries and that his mother was serving food to them and that lantern was burning in the kothri in which be was studying or the place where they were eating or that Ganauri Mahto came and asked to kill everybody. Jitendra had not said to him that 7-8 persons got upon the dalan and that the rest accused were firing in the air. He has said that they same through the eastern kothrl of the dalan and he has also said that they entered in the kothri There was no mark of bullet on the pillars of the kothri. After the house of the deceased towards east north of the dalan, are the bouse of Oanauri mahto and Ramdeo Mahto. He could not say as to how many houses are there. 14. The defence has also produced five witnesses in support of its case saying that a title suit bearing No.160 of 1983 had been filed. D. W.1 dwarika Prasad is a typist who has proved the copy of the plaint of the said suit and has also said that he typed the draft of the origininal plaint (Ext.3)which was in the writing of Shri Asho Kumar, advocate. In cross-examination, he has said that he had not typed the copy of the plaint before him ashok Kumar. He identified the writing of Ashok Kumar as he bad worked with him. D. W.2. Lakhan Prasad Singh is an advocate clerk, and has proved the RTO of Jagpatia Devi which was identified by Ajai Kumar. An affidavit had been sworn by Jagpati Devi. He identified the writing of Ashok Kumar as he bad worked with him. D. W.2. Lakhan Prasad Singh is an advocate clerk, and has proved the RTO of Jagpatia Devi which was identified by Ajai Kumar. An affidavit had been sworn by Jagpati Devi. He identified the affidavit which in is in the writing and signature of Ashok Kumar Prasad which was filed along with the title suit. He was pairwikar of defendant Nos.7 to 9 in the laid title suit. This affidavit (Ext. B) was signed by the Oath Commissioner, sbri Saryug Prasad. This contested suit was dismissed for default on 19-4-1990 regarding which he came to know when he was approached for pairwy in the case. He knew Jagpatia Devi and Ajai Kumar from before d. W.3, Indra Kumar Ondewar a court peon, is said to have taken notice in respect of the defendants and be bad submitted his reports. D. W.4 is ram Chandra Prasad, who has proved a sale-deed. He has said that jagpatia Devi had come to him for typing a deed but on account of his typewriter being out of order, ha referred her to another typist Dwarika Prasad who typed the sale-deed on the basis of a draft in Hindi. D. W.5. Ram ratan Singh, a deed writer, has said that he Knew Jagpatia Devi of Maoh-rawan. She had come to him on 23-7-1985 and had given a draft of a saledeed to be typed. He gave it to Ramchandra Prasad, typist, who on account of bis type-writer out of order, referrrd her to Dwarika Prasad who typed the deed. The typed d cd was read over to her, who finding it correct, put her rti. Ramautar Singh also signed the sale deed in his presence. This deed was registered before the Registrar, being Ext. I. He had not signed anywhere on the document. He did not know Jagpatia or Ramautar Singh from before hand. 15 About the appreciation of the evidence, the Supreme Court, in the case of Bauva Haji Hamsa V/s. State of Kerala, AIR 1974 SC 902 , in para 29, has held as follows: "we agree with the High Court that the very "scheme of approach" adopted by the trial judge was faulty and misleading. It led to aberration and misdirection in appraising evidence, and vitiated his conclusions. It led to aberration and misdirection in appraising evidence, and vitiated his conclusions. The learned trial judge started correctly when on a broad loofe of the evidence, he found the evidence of P. Ws.1, 8 and 9 prima facie acceptable. But after the second lap of discussion, he became sceptical; and reverted his mind at the end of the third round of circumgyratory discussion. In such cases where a large number of persons are involved and in the commotion some persons cause injuries to others and the evidence is of a partisan character, it is often safer for the judge of fact to be guided by the compass of probabilities along the rock-ribbed contours of the case converging on the heart of the matter. Once the Court goes astray from the basic features of the case, it is apt to lose itself in the labyrinths pt immaterial details desultory discussion and vacillation arising from unfounded suspicious. " In the case of State of U. P. V/s. M. K. Anthony, AIR 1985 SC 48 . the supreme Court, at page 54 (para 10), has observed as follows : "while appreciating the evidence of a witnesses, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence bad the opportunity to form the opinion about the general tenor of evidence given by the witness,the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would no be porper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witness differ in some details unrelated to the mam incident became power of observation, retention and reproduction differ wthin indivduals cross-examjnation is an unequal duel between a rustic and refined lawyer. " It has also been said by the Supreme Court in the case of State of Rajasthan v. Smt. kalki and another,air SC 1390 at page 1392 (para) as follows: "in the depositions of witnesses there are always normal discrepancies however, honest and truthful they may be. These discrepancies are due to normal error of observation normal errors of memory due to lapse to time,due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. " Further in the case of Bharwada Bhoginbhai Hirjibhai V/s. state of Gujarat, air 1983 SC 753 at page 756 (sub-para 7 of paras 5 and 6) the supreme court has observed as follows: "5 (7 ). A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub conscious mind of he witness sometimes so operates on account of the fear of looking foolish or being diibelieved though the witness is giving a truthful and honest account of the occurrence witnessed oy him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. " para 6.- Discerpancies which do not go to the root of the matter and shake the basic version of the witness, therefore, cannot be annexed with undue importance. More so when the all important "probilities-factor" echoes in favour of the version narrated by the witnesses. " in the case of state (Delhi Administration) V/s. Laxman kumar and others, air 1986 SC 250 ,the Supreme Court,at page 264 (para 43) has held as follows: "there is some amount of discrepancy in the evidence of the witness in regard to the details and Mr. Singh highlighted this aspect in his submission. It is common human experience that different persons admittedly seeing an event give varying aocount of the same. That is because the perceptiveness varies and a recount of the same incident is usually at variance to a considerable extent. Ordinarily, if several persona give the same account of an event, even with reference to minor details, the evidence is branded at parrot like and is considered to be the outcome of tutoring. Having read the evidence of these witnesses with great care, we are of the view that the same has the tough of the intrinsic truth and the variations are within reasonable limits and the variations instead of providing the ground for rejection, add to the quality of being near to truth. " In the case of State of U. P. V/s. Krishna Gopal and another, AIR 1988 SC 2154 at page 2160 (Para 13), the Supreme Court has hold as follows: "it is true that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primary of the quality of the trial process. Hence the importance and primary of the quality of the trial process. Eye-witness account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making an other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story ; consistency with the account of other witnesses held to be credit worthy ; consistency with the undisputed facts the credit of the witnesses ; their performance in the witness box ; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. " Again in the case of Appabhai and another V/s. State of Gujarat, AIR 1988 sc 696 : 1988 Cr LJ 898 at page 851 (Para 13), the Supreme Court has observed as follows .- "it is true that there are many contradictions in the evidence of Devji. He has not attributed over acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye-witness. The Court while appreciating the evidence must not attach undue importance to minor discrpancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. I he discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different oases must into evalue the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. " In the case of State of U. P. V/s. Pheru Singh etc. AIR 1989 SC 1205 , the supreme Court, at page 1211 (Para 20) has held as follows : "in State of V. P. V/s. Hakim Singh, (1980) 3 SCC 55 : AIR 1980 SC 184 , it has been ruled by this Court that Supreme Court would interfere where High Court instead of dealing with the intrinsic merits of the evidence of eye-witnesses, had brushed it aside on surmises, conjectures and preponderance of improbabilities which in fact, did not exist. " In case of Dllavar Hussain and others V/s. State of Gujarat and another, (1991) 1 SCC 253 , at page 255 (Para 4} and page 258 (Para 14), the Supreme court has observed as follows :- "misgiving, also, prevailed about appreciation of evidence. Without adverting to submissions suffice it to mention that credibility of witnesses has to be measured with same yardstick, whether, it is ordinary crime or a crime emanating due to communal frenzy. Law does not male any distinction either in leading of evidence or in its assessment. Rule is one and only one, namely, whether depositions are honest and true. Withstand this test is the issue But before that some legal and general questions touching upon veracity of prosecution version may be disposed of. " "to bring home the guilt the prosecution was required to prove the presence of witnesses, possibility of seeing the incident by them and identification of the appellants. " In the case of Vinod Kumar V/s. The State of U. P. , (1991) Cr LJ 360, the supreme Court, at page 377, Para 34, has observed as follows : "sixthly, since the testimony of P. Ws.1 and 3 is found to be intrinsically reliable and worthy of credit on being subjected to strict and careful scrutiny, there is no impediment in accepting that evidence and it is not the law as repeatedly ruled by this Court in various decisions that the evidence of an interested witness should be equated with that of fainted witness. " In the case of Malkiat Singh and others V/s. State of Punjab, 192 Eastern indian Criminal Cases 98 (SC), the Supreme Court, at page 105 (Para 8) has observed as follows: "it is settled-law that corroboration is not a rule of law, but one of caution as an assurance. The conviction could be made on the basis of the testimony of a solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim his pig-disposition towards the accused, are some of the circumstances to be iept in view to weigh and accept the ocular evidence of a witness. It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the Court for acceptance. " It has also been held in the case of Dalbir Singh and others V/s. State of punjab. AIR 1987 SC 1328 at page 1332 (Para 15) by the Supreme Court as follows: "learned counsel on question of appreciation of evidence referred to number of decisions but it could not be disputed that on hard and fast rule could be laid down about appreciation of evidence. It is after all a question of fact and each case has to be decided on the facts as they stand in that particular case. In our opinion, therefore, not much assistance could be sought from the decisions referred on the question of appreciation of evidence. " 16. Thus, keeping in view of these guidelines, the evaluate the evidence of the witnesses, it is clear that while appreciating and scanning the evidence of the witnesses, the court is to keep in toind the basic features of the case and probabilities. The witnesses who have been said to be eyes and ears of the justice, give account of what they see and perceive In the scrutiny, the evidence, as as whole and not one sentence here and there should be for the consideration. There should be no question of technicality or even hypertechnality or meticulous hypersensitivity. There should be proof beyond reasonable doubt. No evidence is perfect and howsoever, honest and truthful witness may be, there are bound to be discrepancies and normal erros of observation and perception on account of lapse of time, mental disposition, opportunity to see. There should be no question of technicality or even hypertechnality or meticulous hypersensitivity. There should be proof beyond reasonable doubt. No evidence is perfect and howsoever, honest and truthful witness may be, there are bound to be discrepancies and normal erros of observation and perception on account of lapse of time, mental disposition, opportunity to see. If these discrepancies are material and go to the root of the matter, then they have adverse effect upon the evidence. But if they are minor and appear to be on account of the piercing cross-examination by the counsel, or of nervousness or mixing of sequence of events, then undue importance to such minor discrepancies should not be given, A witness has to face seasoned lawyer with expertise in cross-examination and in that duet, many getastray. But if they give some such statement, is being apart the basic feat res or the root of the matter or give something improbable, then such evidence should not be accepted. Corroboration is also esiential to ensure the correctness or truth cf such statements. No hard and fast rule can be laid down and every case has to be considered in the light of the circumstances, human and natural probabilities, reason, normal behaviour and possibilities and circumstances of the case. No capital should be made of the minor discrepancies nor major discrepancies should be minimised or ignored. A court with its experience, it a best appreciate or of the evidence given by the witness before him. Evert case has to be decided on the facts and circumstances of that particular case. 17. P. W.2, Birendra Prasad is the informant. He is also an injured. His presence on the spot on acccuot of the injuries suffered by him cannot be disputed. He is the person who suffered injuries and had been in the hospital. He has given out the details of the matter and his evidence on scrutiny and scanning, does not suffer from any discrepancies and contradiction or unreasonableness on account cf which, he may be disbelieved. Nothing has been pointed out to show that he made any embellishment or his evidence has got no ring of truth. He has withstood the test of cross-examination. He has got no enmity to falsely implicats the appellant. Nothing has been pointed out to show that he made any embellishment or his evidence has got no ring of truth. He has withstood the test of cross-examination. He has got no enmity to falsely implicats the appellant. No motive for falsely implications is made, except the dispute for 8 decimals land which was only on batai and bataidari does not confer any permanent title over the land and that 8 decimals land was not only land with the informant which was taken away from the informant and bis family would have caused starvation. Thus, his evidence inspires confidence. 18. P. W.3, Mithlesh Kumar was than a child of 11 years and his presence in the house is most natural. The Supreme Court, in the case of tehal Singh and others V/s. State of Punjab, AIR 1979 SC 1347 at page 1350 (para 5), has held as follows; "hardhip Singh is a lad of 13 years. In out country and particularly in the rural areas it is difficult to think of a lad of thirteen years as a child. A vast majority of boys round about that age go to the fields and do mens work. They are certainly capable of understanding the significance of the oath and the necessity to speafc the truth. The learned Sessions Judge who had the opportunity of seeing the witness Hardep Singh in the witness-box did not consider it necessary to treat him as a child witness. A perusal of his evidenee also shows that he has certainly attained a measure of mature understanding. We do not think we can accept Dr. Chitaleys and proceed on the basis Hardip Singh is a child witness even otherwise, having gone through his evidence we are satisfied that his evidence does aot suffer from any infirmity. He was cross-examined at gre it length Out nothing was elicited from him to dub him as a false or a tutored witness. The mere circumstance that he is the son of one of the deceased person does not justify our looking at his evidence with any suspicion. He was cross-examined at gre it length Out nothing was elicited from him to dub him as a false or a tutored witness. The mere circumstance that he is the son of one of the deceased person does not justify our looking at his evidence with any suspicion. " In the case of Suresh V/s. State of U P. , AIR 1981 SC 1122 at page 1125 (para 11), the Supreme Court has observed as follows : "coupled with these considerations is the fact that the basic evidence in the case is of a child of five who answered many vital questions with a nod of the head, one way or the other. A witness who, by reason of his immature understanding, was not administered oath and who privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted wholesale. " In the case of Janardan Tewary and another V/s. State of Bihar, 1971 (2)SCC 927 at page 929 (para 5), it has been obsesved by the Supreme Court as follows : "enough corroboration is available in this case from the evidence of bir Kumar who gave the information to his grandmother immediately after the incident and also deposed on oath in Court. Bit kumar Singh is a young boy aged 12 years and, therefore, we have to be cautious about accepting his testimony. We have read bis evidence, Bir Kumar Singh was closely questioned to find out whether he understood nature of evidence and whether he was capable of giving answers to the questions put to him. The sessions Judge was satisfied that Bir Kumar was a competent witness and his statement struck us as being true. " In the case of Bharvid Bhikha Valu and others V/s. The State of Gujarat, air 1971 SC 1064 , it has been observed by the Supreme Court at page 1067 (para 17 ). "the High Court adopted the correct approach in finding that though there was no infirmities of Khengars evidence as it stood but in view of the fact he was a young boy it would be prudent to seek corroboration of khengers evidence. In this case, Mithlesh Kumar was also put questions by the Court to find out whether he understood nature of evidence and whether he was capable of giving answers to the questions on oath. In this case, Mithlesh Kumar was also put questions by the Court to find out whether he understood nature of evidence and whether he was capable of giving answers to the questions on oath. In reply to the question as to what be understood from oath, he has said that oath means that one should not speak lie and on account of telling lies, knowledge does not come. He was a boy of about 11 years and was a student and being taught at the relevant time in the kothri adjacent to the dalan. He has withstood the test of cross-examination and nothing has come in his evidence to show that he has not been able to see the occurrence. His evidence shows that he had attained the maturity and understanding. No material contradiction could be pointed out in his evidence. Whatever has been said by him in the Court finds corroboration by the other evidence and material on the record, that is the statement of the injured witness, medical evidence and other circumstances, as such, his evidence inspires confidence and is entitled to be relied on. 19. Learned counsel for the appellant has urged that the presence of p. W.4 Jitendra Prasad on the spot at the time of occurrence is doubtful, he also urged that in the fardbeyan, it has not been mentioned that Jitendra was teaching Mithlesh in the room though P. W.3 has said that he was studying into room and P. W.4 was coaching him. that the statement of jitendra as admitted by the Investigation Officer, P. W, 6, was recorded after 5 days on 16-2-1988. And this very P, W.4 dces not say that he had said to the police that he was teaching and that P. W.4 himself has said that he same alongwith other two witnesses Bacbcuji and Bholaji who have not been examined. All this according to the learned counsel is clear to show that p. W, 4 was not at the place of occurrence and so he bad not seen the occurrence and he came after the accused had gone away. P. W.4 Jitendra Kumar is said to be a witness to be present on the spot, teaching Mithlesh and when the occurrence started, he stood behind P. W.3 by the side of the plank of the door and has been able to sse the occurrence. P. W.4 Jitendra Kumar is said to be a witness to be present on the spot, teaching Mithlesh and when the occurrence started, he stood behind P. W.3 by the side of the plank of the door and has been able to sse the occurrence. P. W.2 Birendra Prasad has said that Mithlesh Kumar was reading in the eastern kothri and Jitendra was coaching him. P. W.3 has also said about the coaching in bis evidence. P. W.4 himself has said that at the relevant time, in the eastern kothri, he was coaching his cousin. In various paragraphs of the cross-examination, be has said that he had not gone out of bis room. Be had seen the occurrence from the kothri by remaining by the side of the western door of northern door plank. He had not raised any alarm hearing the vice of the accused and whatever he had seen was seen by him remaining by the side of the door in the kothri. He has said (in paragraph 35) that he had not given out to the police that what occurrence had been seen by him by the side of the kothn. P. W.3 has consistently said about the presence of this witness and being taught and so is also the version of Birendra injured and same version had been given by him in fardbeyan. This witness claims to have been there and taken the victim to the hospital on a cot. This witness is the nephew of the deceased and the informant. He was looking after the entire cultivation of the family. We has given out that at the time of the occutrence, he was coaching has cousin and had been seeing the occurrence while standing bebing Mithlesh in the kothri by the side of the plant of the door. So, bis presence at the spot is very natural as the member of a family is a natural witness. P. W.6 the Investigating Officer, has said that Birendra prasad and told him that Jitendra was teaching Mithlesh. There is nothing to show that at the relevant time he was not at the spot. His presence in the house at that time as a member of the family living with his father is nothing but natural and so coachlcg the younger brother Mithlesh in the room cannot be ruled cut. There is nothing to show that at the relevant time he was not at the spot. His presence in the house at that time as a member of the family living with his father is nothing but natural and so coachlcg the younger brother Mithlesh in the room cannot be ruled cut. As regards the delayed examination of P. W, 4. the Investigating officer bed not been put any question in the court. If any such question had been but to him, he was the best person to give out reasons and circumstances. In the case of Bala Krushna Swain V/s. State of Orissa, AIR 1971 SC 804 out of the two witnesses P. W.2 was declared hostile and the only other witness. P. W.2 was declared hostile and the only other witness, P. W, 5 was not examined. Although the Investigating Officer has said that he had met p. W.5 while he was going to the village when P W.5 wes being taken to the hospital, their Lordships in the circumstances of the case, said that counsel was Justified in the comment that the delayed examination of P. W.5 by p. W.9 would give an opportunity to P. W.5 to concoct a different version that what actually took place. In the case of Ranbir and others V/s. State of Punjab, AIR 1973 SC 1409 , their Lordships have observed at page 1412 (para 7) as follows : "the appellants counsel also faintly contended that Tota Ram P. W.7 was examined by the police after considerable delay, the suggestion being that his evidence must be looked at with suspicion. We are not impressed by this submission. The fact of delayed examination of Tota Ram should, in our opinion, have been put to the investigating officer go as to enable him to explain the undue delay, if any, in examining Tota Ram. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the Investigating Officer should be asked specifically about the delay and the reasons therefor. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the Investigating Officer should be asked specifically about the delay and the reasons therefor. " In the case of Narpal Singh V/s. State of Haryana, AIR 1977 SC 1066 , it has been observed by the Supreme Court at follows at paga 1071 (para 12) : "the only serious comment made against this witness was that he was examined by the police 20 days after the occurrence. This is undoughtedly a matter which has to be taanden into consideration. The Sessions Judge has considered this defect and has found that this lapse on the part of the police would not be sufficient ground to reject the testimony of the witness, because there is no intrinsic defect in the testimony of the witness. As amrik Singh was not an eye-witness to the main occurrence, the investigating Officer may have rightly or wrongly thought that ho would record the evidence of Amrik Singh after collecting all other material evidence in the case and that may explain the delay in the examination of this witness by the police. " P. W.4 is not the only eye-witness. As such, his delayed examination has got no affect specially when nothing has been put to the Investigating officer who could have given out reasons for the same. This witness has supported the version and there cannot be anything to discard his testimony. 20. Another contention is that Bachuji and Bholaji, the two witnesses who are said to have come immediately after the departure of the accused, have not been examined and their eon-examination has prejudiced the defence who would have given out as to what was immediately disclosed to them. P. W.2, informant, has said that Bholaji aad Bachuji were examined by the police but they have not been produced is the court for evidence and that they have been won over. They were the persons besides others who had reached at the spot which fact has been mentioned in the F. I. R. (Ext.4 ). In court also far has said that the villagers came. They were the persons besides others who had reached at the spot which fact has been mentioned in the F. I. R. (Ext.4 ). In court also far has said that the villagers came. In his evidence, he has also said that the appellants thinking him and others to be dead, went away towards east whereafter Bachuji and Bholaji and Jitendra ard Mithlesh came and they picked him up and kept on the chouki, P. W.3 Mithlesh has said that except him and Jitendra, none ehe had seen the occurrence. After 2-3 minutes of the occurrence, villagers came. He could not give the names excep 2-3 persons, namely, Bachuji, Bholaji, Ashok Mahto and Laccho Sao. P. W.4 Jitendra has said that immediately after the going of the accused persons, Bachuji Bholaji, and Bhola Gope came. He and Mithlesh went out of the room and took out Birendra Prasad from beneath the Khat. Bachuji, bholi Mahto and Bhola Gope told him they had seen all the appellants going away. Choukidar of his village is Bhola Gope whose name was given by him. The bouse of Bhola Gope was after 10-12 house of the dalan. No woman of the house had come nor any person of the village had come. Bachuji Ram keshwar and gotias of mother-in-law of appellant Shailjanand and Nawal. From perusal of the order sheet of the trial court dated 5-2-1990, it appears that the Assistant Public Prosecutor had filed an application in the court below that the charge sheet witnesses Bholi Mahto and Rameshwar Prasad have colluded with the accused persons and so, they will not be examined. Thus, it is clear that only P. W.2, the injured, and P. Ws.3 and 4 Mithlesh jitendra are the only eye-witnesses. Neither the women of the house came during the occurrence nor Bholi, Bachu, and Bhola Gope. These three persons, are said to have reached the spot 2-3 minutes after the occurrence, and after the going away of the accused. They are said to have seen the accused going away and they were told about the occurrence. They are not the eye-witnesses. They are not material witnesses for unfolding the prosecution story. These three persons, are said to have reached the spot 2-3 minutes after the occurrence, and after the going away of the accused. They are said to have seen the accused going away and they were told about the occurrence. They are not the eye-witnesses. They are not material witnesses for unfolding the prosecution story. The prosecution is not bound to produce then unless their evidence is essential for unfolding the prosecution story and even if the witnesses who have seen the occunence may not be produced if their production amounts to redundance and multiplicity of evidence. In the case of Habeeb mohammad V/s. State of Hyderabad, AIR 1954 SC 51 , their Lordships of the supreme Court have observed at page 56 (para 11) as follows : "biabani who was a top-ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, be would not speak the truth ; and in any case, the court would have been well advised to exercise its discretionary powers to examine that witness. The witness was at the time of the trial in charge on the Police Training School, and was certainly available. In our opinion, not only does an adverse inference arise against the prosecution case from his non-production at a witness in view of illustration (g) to section 114 of the Indian Evidence Act. In the circumstances of his being withheld from the court casts a serious reflection on the fairness of the trial. " Again in the case of Raghubir Singh V/s. The State of U. P. , AIR 1971 SC 2156 , at page 2161 (para 10), their Lordships of the Supreme Court have observed as follows : "it is enough to repeat, what has often been ruled that the prosecution is not bound to produce all the witnesses said to have been the occurrence. Material witnessed considered necessary by the prosecution for uofoldiug the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses The appellants counsel has not shown how the prosecution itory is rendered less trustworthy as a result of the non-production of the witnesses mentioned by him. No material and important witness was deliberately Kept back by the prosecution. No material and important witness was deliberately Kept back by the prosecution. Incidentally we may point out that the accused too have not considered it proper to produce those persons as witnesses for controverting the prosecution version. " A learned Single Judge of Rajastban High Court, in the case of Mehmood beg V/s. State of Rajasthan, 1973 Cr LI 806 has observed at page 809 (para 9): "that apart, it is wrong idea that the prosecution must call witnesses irrespective of consideration of reliability or that it should discharge the function both of prosecution and defence. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must of course be called by the prosecution : See Stephen Seneviratne V/s. King, AIR 1936 PC 289 : (37 Cri LH 963 ). " In the case of Karpal Singh V/s. State of Haryana, AIR 1977 SC 1066 (Supra), it has been further observed by the Supreme Court at page 1073 (para 16): "the real question for determination is not as to what is the effect of non-examination of certain witnesses as the question whether the witnesses examined in Court on sowrn testimony should be believed or not. Once the witnesses examined by the prosecution are believed by the Court and the Court comes to the conclusion that their evidence is trustworthy, the non-examination of other witnesses will not affect the credibility of these witnesses. " In the case of Bir Singh V/s. State of U. P, AIR 1978 SC 59 , their lordships have observed at page 63 (para 9): "it is true that it is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule, however, does not apply where the evidence of the eye-witness suffers from various infirmities and could be relied upon only if properly corroborated. " It has also been found that the witnesses who have seen the occurrence or who reached after the occurrence and immediate disclosure is made to them in respect of the occurrence and also the names of the acuused are given out to them, such persons are also tried to stay where from both sides for various considerations, may be their own interest, fear from the partition, apathy or unconcerndness or even non-alignment to both the parties. Such considerations are the ways of life without any hard and fast rules and such situation and circumstances have been noticed by the courts from time to time. In the case of Darya Singh and others V/s. State of Punjab, AIR 1965 SC 328 , it has been observed at page 333 (para 12): "in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. " Again in the case of Raghubir Singh V/s. State of v. P. , AIR 1971 SC 2156 (Supra), it has been observed at page 2161 (para 10): "in this connection the general reluctance of an average villager to appear as a witness and get himself involved in the cases of village factions when spirits on both sides are running high has to be borne in mind. " In the case of Jagdip Singh and others V/s. State of Haryana, AIR 1974 SC 1978 , their lordships have observed at page 1979 (para): "either, that the villagers bad no sympathy for him or perhaps they wanted to stay whercfrom they thought was a family feud. A pistol weilding desperado like Jagdip Singh who bad on a prior occasion assaulted his father with the spear must have by his actions kept away the independent witnesses out of a sense of fear. " in the case of Appabhat and another V/s. State of Gujarat, AIR 1988 SC 696 ; (1988) Crlb 848 at pai*e 851 (para 11), their Lordships have observed ai follows: "experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable They think that crime like civil dispute is between two individuals or parties and they should not involve themselve. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has discharge its duties. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has discharge its duties. " In these circumstances, the courts have to consider the evidence produced before them and try to find out the truth on the basis of the evidence produced, may be for conviction or acquittal, If the evidence produced inspires confidence, it can be relied on. This aspect of the matter has also been considered from time to time. In the case of Hallu and others V/s. State of Madhya Pradesh, AIR 1974 SC 1936 it has been observed that a faction ridden village indepeodent witnesses are unwilling to come forward and therefore, the testimony of eye-witnesses who are interested in the deceased cannot be discarded merely for the reason that they are interested, provided of course, the presence of witness is proyed. " In the case of Gurdas Singh and others V/s. State of Rajasthan, AIR 1975 SC 1411 , it has been held by the supreme Court at page 1416 (Para 16) as follows : "it is no doubt true that some persons who could have supported the eye-witnesses as independent witnesses have not been examined. But the reason is not tar to seek. The appellants, if they could commit the ghastly crime for the type of the enmity which they have with the family of Dhanna Singh no independent person could dare come and depose against them. The High Court has rightly rejected this point. . . . . . . . . Prosecution in the circumstances was not expected to examine any other so-called independent witness whom it thought not safe to examine as due to one reason or the other he by joining hands with the accused did no longer remain independent. " In the case of Muthu Ndicker and others etc. V/s. State of Tamil Nadu, air 1978 SC 1647 , at page 1652 (Para 6) it has been said that where an occurrence takes place involving rival factions it is but inevitable that the evidence would of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut ones eyes to the realities of the rural life in our country. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut ones eyes to the realities of the rural life in our country. " In the case of Badrl and others V/s. The State of U. P. , AIR 1975 SC 1985 , it has also been observed that in case of rival village factions, the partisan witnesses alone are natural and probable witness to the incidence and so, the evidence of such witnesses cannot be discarded, In the case of Appabhat and others V/s. State of Gujarat (supra), their Lordships have observed at page 851 (Para 11): "it is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. Rut the prosecution case cannot be thrown out or doubted on that ground alone. . . . . . . . . . . The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecation version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. " it has been argued that if the witnesses who have seen the occurrence or two came afterwards, are won over then the prosecution should produce them in court so that the evidence of such witnesses may be tested by the court to arrive at the truth and on account of the non-examination, the such witnesses, the case of the prosecution should be doubted. In the case of State of U. P. and another V/s. Jaggo alias Jagdish and others, AIR 1971 SC 1586 , their Lordships have observed at page 1590 (Para 16) that : "the High court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eye-witness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with ramesb at the time of the occurrence. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eye-witness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with ramesb at the time of the occurrence. " The Supreme Court has further observed in the case of Soma Bhai V/s. State of Gujarat, AIR 1975 SC 1453 , at page 1457 (Para 7): "but there is sufficient evidence to show that she was a close relation of the accused and the prosecution had given an application that they were giving her up because she had been gained over by the accused. In these circumstances the non-examination of these to persons does not at all destroy the fabric of the prosecution case. " in the oase of Dalbir Singh and others V/s. State of Punjab, AIR 1987 SC 1328 , at page 1332 (para 13), it has been observed that: "as regards the non-examination of one of the eye-witness Bakhsish Singh the judgment of the Sessions Court indicates that this witness was not examined as having been won over and, therefore, it could not be said that this witness was not examined without giving any reasons. " Further in the case of Allauddin Mian and others \. State of Bihar, 1989 SCC (Cri) 490, at 500 (para 7) their Lordships have observed : "there is ample material on record to conclude that considerable pressure was exerted on the prosecution witnesses stay away from the witness-box. Some succumbed to the threats and pressure while some others did not displayed courage to give evidence and state the truth. In this backdrop, if the prosecution did not examine Jallaluddin, Ram chandra Prasad and Bhikhari Mian on learning that they were won over it cannot be said that the prosecution was unfair to the accused persons". As such, non-examination of the three persons, namely, Bachuji, Bholiji and baohho Sao has got no effect. The defence has examined a number of witnesses but not these persons who could have given out a truth to the court for disbelieving the prosecution version. 21. As such, non-examination of the three persons, namely, Bachuji, Bholiji and baohho Sao has got no effect. The defence has examined a number of witnesses but not these persons who could have given out a truth to the court for disbelieving the prosecution version. 21. As regards the contention that there was delay in sending the F. I. R. to the police station, it appears from the record that the F. I. R. had been lodged on 12-24988 at 10 20 A. M. at P. S. Silao on the basis of the ferdbeyan recorded on 11-2-1988 at 9.45 P. M. at P. S. Rajgir in respect of the occurrence of 11-2-1988 at 8.30 P. M. in village Tilaiya at a distance of 3 Kins, from P. S. Rajgir. The F I. R. was sent next day and it reached the court of the Chief Judicial Magistrate whose endorsement is dated 14-2-1988 13-2-1988 was Second Saturday and 14-2-1988 was Sunday when it was received. The F. I. R. was despatched through special messenger and so, there was no delay. Nothing has been put to the Investigating Officer in this behalf nor any prejudice is shown to have been caused. In the circumstances, it cannot be said that the F, I, R, has been purposely withheld or there was delay in its. despatch. In the case of Om Prakash and others etc. V/s. State of U. P. , AIR 1983 SC 431 , their Lordships of the Supreme Court, at page 435 (Para 11) have observed : Sec.157 of the Cri P. O. only states that the first information report should be despatched forthwith and does not say that the time of despatch must be noted thereon. The learned sessions Judge has observed in his judgment that Exh. Ka-1 seems to have been lodged at the Police Station without any inordinate delay and that there is nothing on record to show that there was any oblique motive tor concocting t false story of the occurrence itself in that first information report". Again in the case of State ofu. P. V/s. Gokaran and others, AIR 1985 sc 131 . Ka-1 seems to have been lodged at the Police Station without any inordinate delay and that there is nothing on record to show that there was any oblique motive tor concocting t false story of the occurrence itself in that first information report". Again in the case of State ofu. P. V/s. Gokaran and others, AIR 1985 sc 131 . it has been observed by their Lordships of the Supreme -ourt at page 135 (Para 13) as follows : as regards the last circumstance, it is true that the special report was received by the District Magistrate on 29th March but it is not as if every delay in sending such a delayed special report to the district Magistrate under Sec.157, Cr. P. C, would necessarily lead to the inference that the F. I. R. has not been delayed at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and fortnight. As has been pointed out by this court in Pain Singh V/s. State of Punjab, ( 1973 1 SCR 964 ; air 1972 SC 2679 . the relevant provision contained in Section 157, Cr. P. C. is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Sec.159, Cr. P. C. but if in a case it is found that the F. I. R. was recorded without delay and the investigation started on that F. I R. then, however, improper or objectionable the delayed receipt of the report by the Magistrate concerned that cannot by itself iustify the conclusion that the investigation was tainted and prosecution insupportable. " in the case of Dalbir Singh and others V/s. State of Punjab, AIR 1987 SC 1328 , it has been held at page 1332 (Pars 14) : "it is apparent that if the report itself was recorded at 3.25 P. M. and the police officer was investigating the offence, next morning the report had been despatched to the Magistrate. It is also significant that initially as the report was recorded on the basis of dying declaration of Makhan Singh an offence under Sec.307 read with sections 148 and 149 only was registered. It therefore could not be said that there was any delay in sending the report to the Magistrate. It is also significant that initially as the report was recorded on the basis of dying declaration of Makhan Singh an offence under Sec.307 read with sections 148 and 149 only was registered. It therefore could not be said that there was any delay in sending the report to the Magistrate. " In the case of state of U. P. V/s. Anil Singh, AIR 1988 SC 1998 , at page 2002 (Para 17) it has been observed as follows : "according to counsel, the report must have been prepared after the inquest and non-mentioning of the time of despatch of F. I. R. to the Court would lend support to his submission. We carefully examined the material on record. We are unable to accept the submission of learned counsel. In the first place, P. W.1 was not specifically cress-examined on this matter. The court cannot, therefore, presume something adverse to the witness unless his attention is specifically drawn to Secondly, the records contain unimpeachable evidence to the contrary. " 22. It has also been argued that the medical evidence does not support the prosecution story as the prosecution version is that both the deceased were taking food at the time of occurrence. Out of them, one Ramadhin, after taking food, was lying on the chouki while Ram Lakhan and Birendra were taking food at the time of the occurrence. But in the post mortem report of both the deceased, semi-digested food was found in their stomach. As to this contention, the evidence of Dr. Pradeep Kumar Singh (P. W.1)has admitted the recovery of the semi-digested food of 6oz in the stomach of both the deceased. In cross-examination, he has said that he bad not mentioned the kin d of semi-digested food in the post mortem report nor the serial of the food-grain. The digestive system Hops immediately after the death. He has said that urinary bladders of both the deceased were found empty by him which suggests that they had urinated before the assault. In the case of Shivaji Sahebrao Bobade and another V/s. State of Maharashtra, AIR 1973 SC 2622 , their Lordships have observed at Page 2629 (Para 11) as follows $ "more importantly, the court must not abandon a scientific attitude to medical science if it is not to be guilty of judicial superstition. In the case of Shivaji Sahebrao Bobade and another V/s. State of Maharashtra, AIR 1973 SC 2622 , their Lordships have observed at Page 2629 (Para 11) as follows $ "more importantly, the court must not abandon a scientific attitude to medical science if it is not to be guilty of judicial superstition. To quote Modis Medical Jurisprudence that food would be completely digested in four to five hours or to swear by the doctor to deduce that death must have occurred within 3 hours of the eating and, therefrom, to argue that the presence of undigested food in the dead body spells the sure inference that death must have occurred before 2.00 P. M. is to misread the science on the subject of digestive processes. Modis Medical Jurisprudence, extracts from which have bean given by both the courts, makes out that a mixed diet of animal and vegetable foods, normally taken by Europeans, takes 4 to 5 hours for complete digestion while a vegetable diet containing mostly farinaceous food usually consumed by Indian does not leave the slomatch completely within 6 to 7 hours after its ingestion. Indeed, the learned author cautiously adds that the stomachic contests cannot determine with precision the time of death "inasmuch as the power of digestibility may remain in abeyance for a long time in states of profound shock and coma". He also states it must also be remembered that the process of digestion in normal healthy persons may continue for a time after death". The learned Judges remined themselves of the imponderables pointed out by Modi which makes the digestive testimony inconclusive and, therefore, insufficient to contradict positive evidence, if any, about the time of death. To impute exactitude to a medical statement oblivious to the variables noticed by experts and changes in dietary habits is to be unfair to the science. We are not prepared to run the judicial risk of staking the whole verdict on nebulous medical observations. " 23. Thus the prosecution evidence that the occurrence had taken place at the time given by the prosecution, is not falsified by the medical evidence. The oral evidence given by the eye-witnesses including the injured about the time of the occurrence, is positive and cannot be ruled out on the basis of opinion and evidence of the doctor. " 23. Thus the prosecution evidence that the occurrence had taken place at the time given by the prosecution, is not falsified by the medical evidence. The oral evidence given by the eye-witnesses including the injured about the time of the occurrence, is positive and cannot be ruled out on the basis of opinion and evidence of the doctor. Even Modi has also said that the processes of digestion in normal healthy persons may continue for some time after the death and same thing has also been said by the Courts. Thus, presence of the semi-digested food dees not adversely affect the version about the time, place and manner of occurrence deposed by the eye-witnesses whose presence on the spot including the injured, other minor inmate and nephew who had been able to identify already known appellants in the lantern light. 24. In the result, on appreciation of the entire material on record, faota and circumstances of the case, it appears that the prosecution has been able to make cut its case to the hilt against the accused appellants beyond all reasonable doubts and so, all the six appeals are dismissed. The order of conviction and sentences passed against ell the eight appellants by the trial court, is hereby liable to be upheld and is being upheld. As, appellants ashok Kumar, Ratan Prasad, Ram Pravesh Kumar alias Pravesh kumar, Ramdeo Mahto and Ganauri Mahto are on bail, their bail bounds are hereby cancelled and they are ordered to be taken into custody to serve out their sentences. Rest three appellants are in custody, so they will serve out their remaining period of sentences. N. P. Singh,. J.-I agree. Appeal dismissed.