PALOK BASU, J. ( 1 ) THIS is an appeal filed by Han Ram, Gajraj, and Mulu against their conviction under section 302 read with section 34 I. P. C. passed by the III Additional Sessions Judge, Jalaun at Orai dated 19/4/1979 in Session Trial No. 146 of 1978. ( 2 ) THE charge against the, appellants was that on 6/1/1978 at about 4. 00 P. M. they in furtherance of their common intention caused the murder of Bhura aged about 25 years son of Maheshwaridin kachhi informant, who has been examined as P. W. 1 in village Udanpur, P. S. Kadaura District jalaun. ( 3 ) THE prosecution case is that the deceased Bhura had teased or hag done something outraging the modesty of the sister of Han Ram appellant for which a First information Report was lodged and for that reason Han Ram bore grudge against Bhura. It is said that two other appellants Gajraj and Mulu are friends of Han Ram. On 6; 1. 78 at about 4 P. M. Bhura, Maheshwaridin with her daughter Sobhati and Sita Ram, who is a relative of the informant, were returning after collecting Hariyalit from the plots. When they reached the alleged place of occurrence, they met one Ramdi, a friend of Siwam, started talking, while the deceased Bhura went ahead with the heap of Hariyalit on his head. Just after a little while a hue and cry was heard by the informant Sitaram and others any they saw that near the house of Baladin three accused persons were beating Bhura in front of the shop of Bal Kishan with weapons. It is said that Hariram and Gajraj were armed with axes and Mulu was armed with a Barchhi, The witnesses challenged the assailants, who ran away leaving Bhura. It was noticed that Bhura was lying dead in a pool of blood. The informant prepared a written report with the help of one Ram Prasad at his residence and went to the police station Kadaura and lodged the First Information Report at 5. 45 P. M. A case was registered by the Head Moharrir, and the Investigation officer P. W. 6 Subedar Singh who was present at the Police Station Kadaura, proceeded for the site of the incident immediately thereafter. 45 P. M. A case was registered by the Head Moharrir, and the Investigation officer P. W. 6 Subedar Singh who was present at the Police Station Kadaura, proceeded for the site of the incident immediately thereafter. Necessary documents with regard to the inquest report and recovery of plain and blood stained earth were made and then the dead body was handed over to constable Sirajuddin P. W. 3, who took it to the head quarter for post-mortem examination. P. W. 8 Dr. M. P. Gupta conducted the postmortem examination on 8. 1. 78 at 4. 00 P. M. and found the following ante-mortem injuries:1. Incised wound 10 cm. x 2 cm. x brain deep on left parietal region and 7- cm. away and parallel to the mid line. 2. Incised wound 6-cm. x 1-cm. x Brain deep on right parietal region cm. away and paralled to the mid line. 3. Lacerated wound 3 cm. x 2 cm. Brain deep and 3 cm. posterior to the left ear. 4. Incised wound 2- cm. x 3/4 ctn. x bone deep just at the base of pinna of left ear. 5. Incised wound 2 cm. x 1- cm. x bone deep of lateral part of left eye. 6. Incised wound 3 cm. x 113 cm. x bone deep on empty part of bridge of nose. 7. Lacerated wound 1 cm. x 3/4 cm. x bone deep left part of chin. 8. Incised wound 8 cm. x 6 cm. x cervical restitute deep on back of neck at its base. 9. Lacerated wound 12 cm. x 9 cm. x cutting the whole neck leaving the skin posterior only and cutting the larynx trachia cervical vertiberal column and large blood vessels. 10. Incised wound 5 cm. x 1- cm. x chest cavity deep on front the left nipple. 11. Incised wound 10 cm. x 4 cm. x chest cavity deep on left side of chest at the level of 7th rib. 12. Fracture of left side of empty face. 13. Depressed fracture of fore head. 14. Incised wound 6 cm. x 2 cm. x vertebral column deep right of back of chest the mid line at level of inferior angle scapular. 15. Fracture of 7th rib left side. On internal examination he found that the skull has been fractured. Brain was lacerated. Vertebra was also fractured and cut of 5th and 6th vertebra. 14. Incised wound 6 cm. x 2 cm. x vertebral column deep right of back of chest the mid line at level of inferior angle scapular. 15. Fracture of 7th rib left side. On internal examination he found that the skull has been fractured. Brain was lacerated. Vertebra was also fractured and cut of 5th and 6th vertebra. 7th rib of left side chest was fractured and on further internal examination he found 150 grams sem-digested food in the stomach while large intestine and its contents was full of faecal matters. In the opinion of the doctor the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased. ( 4 ) THE investigation officer, who was examined as P. W. 6, arrested the appellant Han Ram on 7. 1. 78. The appellant Han Ram took the arresting party to a grain house belonging to Jagat Prasad, which is at a distance of two and a half furlongs from the place of occurrence, where from a blood stained axe was recovered at the pointing out of the appellant Han Ram. The witnesses of the said discovery were Raja Ram, Manni, Chandra Kishore and the Const. Subedar Singh P. W. 6 Out of these witnesses P. W. 4 Manni has been examined. ( 5 ) IT may be stated that in so far as the other two appellants Gajraj, and Mulu are concerned, they surrendered before the court of Chief Judicial Magistrate on 16. 1. 78. Thereafter an application was moved by Gajraj in which Han Ram had joined, claiming, that they be put up for identification by the prosecution witnesses. This application was opposed by the prosecution on the ground that the accused were already named in the First Information Report and the prosecution is not called upon to hold any test identification parade. The chief Judicial Magistrate accepted the objection on behalf of the prosecution and dismissed the application of those two appellants. ( 6 ) SRI P. N. Misra and Sri Vijai Bahadur Singh have been heard at length in support of this appeal. Sri S. P. Singh, learned Government Advocate has spoused the case of the state of U. P. the entire record has been scrutinised. ( 6 ) SRI P. N. Misra and Sri Vijai Bahadur Singh have been heard at length in support of this appeal. Sri S. P. Singh, learned Government Advocate has spoused the case of the state of U. P. the entire record has been scrutinised. ( 7 ) IN this case there are two eye witnesses, P. W. 1 Maheshwaridin, who lodged the First Information Report and his brother-in-law (Samdhi) Sitaram P. W. 2. As stated above, P. W. 4 Manni is the witness, who was a member of arresting party and accompanied the accused and others to the place, where from the appellant Han Ram look out the blood stained axe. ( 8 ) THE post-mortem examination, as noted above, was conducted on 8/1/1978 at 4. 00 P. M. by Dr. M. P. Gupta who has slated that the axe, which was discovered at the pointing out of Han Ram and shown to the witnesses during trial, could cause the injuries sustained by the deceased. P. W. 3 Sirajuddin is the constable who has deposed that he took the dead body of Bhura in the same night for post-mortem examination La District Orai in sealed condition. In cross-examination he has stated that the cart, which he had boarded along with the dead body gave way on the road and then a Tonga had to be arranged through which he could reach Orai on the next day at 6. 30 A. M. It was admitted by him that the dead body was handed over at the mortuary to the doctor concerned on 8/1/1978 early in the morning. There is explanation as to how he reached Orai. The other papers were also handed over to the doctor then and there. It may be noted that P. W. 8 Dr. M. P. Gupta has stated that nearly two days had elapsed when he conducted the post-mortem examination at 4. 00 P. M. on 8/1/1978. The duration, therefore, tallies with the prosecution case. ( 9 ) THE learned counsel for the appellant made three basic criticisms. It may be noted that P. W. 8 Dr. M. P. Gupta has stated that nearly two days had elapsed when he conducted the post-mortem examination at 4. 00 P. M. on 8/1/1978. The duration, therefore, tallies with the prosecution case. ( 9 ) THE learned counsel for the appellant made three basic criticisms. Firstly, Maheshwaridin and Sitaram are interested witnesses being interest relations and therefore, they should not be relied upon, Secondly the witnesses of the locality have not been examined either regarding the incident or even regarding the arrest of Hariram and therefore both, these aspects are not proved beyond doubt; and thirdly that the medical evidence docs not corroborate the prosecution case in as much as Harjram and Gajraj having, challenged their naming by the eye witnesses, the prosecution was duly bound to carry out a test identification parade and their testimony should be discarded because no identification parade was conducted. ( 10 ) BEFORE discussing these points certain basic features of this case may be noted here. From the statements of P. W. 1 and P. W. 2 it appears that they are illiterate witnesses who have put their thumb impression on their statements. While it is true that P. W. 1 Maheshwaridin, who is aged about 40 years and P. W. 2 Sitaram also of the same age, are related, but the fact remains that Silaram had every reason to visit Maheshwaridin. It may further be Slated here that P. W. 4 Manni was also a resident of the village of P. W. 2 Sitaram. In fact the said witness P. W. 4 Manni and one Rajaram were the witnesses along with Sub-Inspector another person of the discovery of the axe at the pointing out of appellant Han Ram. It was not put to P. W. 4 as to who this Rajaram witness was. However, it transpires from the charge-sheet that the said Rajaram has the same parentage as P. W. 2 Sitaram. Therefore, it may be concluded that P. W. 2 Sitaram and Rajaram, the, witness of recovery, are brothers. However, P. W. 4 Manni being a resident of village Sarsela and Sitaram being a resident of village Chakpurwa, it I cannot be said that the testimony of P. W. 4 could have been procured by the prosecution surreptitiously. From the testimony of P. W. 6 1. 0. However, P. W. 4 Manni being a resident of village Sarsela and Sitaram being a resident of village Chakpurwa, it I cannot be said that the testimony of P. W. 4 could have been procured by the prosecution surreptitiously. From the testimony of P. W. 6 1. 0. Subedar Singh it is proved that the First Information Report was lodged at the Police Station on 6. 1. 78 at 5. 45 P. M. when he was present and he took up the investigation at once. He reached the place of occurrence by about 7. 00 P. M. and prepared the Panchayatnama. ( 11 ) AT this stage one of the arguments regarding the contents of the F. I. R. and the language used therein, may be dealt with. According to the statement of P. W. 1 he got the First Information Report written out by one Ram Prasad at the residence of the latter. The last sentence in the F. I. R. reads, Larke ki Lash ko Samadhi Sitaram Waanyalongo ko Takakar Ram Prasad se Tehrir Likhakar Repat ko Aaya Hoc Uchit karyawahi kee jay (translated by court The dead body has been left with my Samdhi Sitaram and others who are watching it, after getting the report written by Ram Prasad, I have come to report to you, necessary action be taken. The contention of the learned counsel for the appellants is that the words, Aaya Hoo, could not have been used while getting the F. I. R. written at the residence of Ram Prasad because by that time the informant would not be at the police station. The argument, therefore proceeds that this F. I. R. was in all probabilities was written out by the Investigating Officer at the police station with ulterior help. This argument is devoid of any merit what so-ever. Once the F. I. R. it self says Ram Prasad se Tehrir Likhahkar Rapat Ko Aaya Hoo. T The words Ayao Hoot have been used to indicate the presence of the informant when he would be reaching the police station with the said report the entire First Information Report had been written in first person by Ram Prasad and at no place he has used second or third person. T The words Ayao Hoot have been used to indicate the presence of the informant when he would be reaching the police station with the said report the entire First Information Report had been written in first person by Ram Prasad and at no place he has used second or third person. Consequently, what was written out by Ram Prasad indicates what was conveyed to him by the informant and, therefore, there is absolute truth in the statement of P. W. 1 when he says that he got the First Information Report written at the residence by Ram Prasad and then lodged it at the police station. In this connection reference has already been made to the statement of P. W. 3 which indicates that he carried the dead body on the same night for post-mortem examination to Oral. Consequently the prosecution has successfully proved that the First Information Report was lodged in the manner as is deposed to by P. W. 1 Maheshwaridin and there is no infirmity or embellishment attached either to the contents of the F. I. R. or lodging thereof. Keeping the aforesaid factual position in mind, the first criticism of the prosecution evidence has lost all force. It may further be emphasised here that so far as the presence of other witnesses of that village is concerned, it has been brought out in the cross-examination that there are some houses near the place of occurrence, but on the date and time of incident it. was a village fair-day and all the villagers had gone to the fair and were not available. It has been well explained by P. W. 1 Sitaram that there were certain persons moving about on the road, who had witnessed the incident. Therefore, the reference in the First Information Report to the words that some others had witnessed the occurrence, is will supported by this part of the deposition. ( 12 ) THE arrest of the appellant Hariram was made by P. W. 6 on 7/1/1978 nearby a tap besides the Nahar Ki Kothi. The time was about 11 A. M. He disclosed to the S. I. that he would lead them to recover the weapon. As a result of this, P. W. 6 Subedar accompanied by P. W. 4 Manni and others took out the axe, as detailed above. This was so done at the instance of the appellant Hariram. The time was about 11 A. M. He disclosed to the S. I. that he would lead them to recover the weapon. As a result of this, P. W. 6 Subedar accompanied by P. W. 4 Manni and others took out the axe, as detailed above. This was so done at the instance of the appellant Hariram. It is further proved from the statement of this witness that his clothes were taken into possession which bore blood stain marks. This witness further says that he had prepared the site-plan where from the recovery of the axe is indicated. This site-plan is Ex. Ka-9. The site-plan does not indicate the presence of any other resident in the vicinity and, therefore, the argument that no witness of that locality was examined where from the recovery of axe was made, would fall on the ground. In this connection the additional factor to be maintained here is that no accused was expected to hide the weapon of assault at a place which would be commonly accessible to others and as per human nature, would like to conceal it at a place where he thought that the weapon could safely be concealed. Considering all these aspects of the matter the Trial Judge has rightly believed this part of the prosecution case. ( 13 ) CONSEQUENTLY the second argument of the learned counsel for the appellant is also rejected. In this very connection it has to be noticed that the cross-examination of the two eye witnesses do not indicate even remotely that they did not know the appellants from before. The informant Maheshwaridin is a resident of the same village where the appellant Hariram resides. The F. I. R. shows the informants son having been earlier arrested for which he was bailed out. Gajraj and Mulu are said to be the friends of Hariram. Consequently there was no need at all for the prosecution to hold the test identification parade. The said prayer made on behalf of Hariram and Mulu was rightly rejected by the Magistrate. ( 14 ) COMING to the third question, it may first be proper to dispose of the question of identification of the accused as noted above. The F. I. R. mentions three accused by name and parentage and all are shown to be residents of the village of informant. None of the appellants in their statement U/s 313 Cr. ( 14 ) COMING to the third question, it may first be proper to dispose of the question of identification of the accused as noted above. The F. I. R. mentions three accused by name and parentage and all are shown to be residents of the village of informant. None of the appellants in their statement U/s 313 Cr. P. C. have denied that they are resident of village Udanpura falling within the police Station Kandaura, Jalaum. Hariram was directly asked about, the case which was instituted by him because the deceased Bhura had misbehaved with Harirams sister in which the deceased Bhura had been bailed out. To this question the, answer of the appellant is, Hame koi pata Nahi Hait The other two appellants namely Gajraj and Mulu have denied any knowledge of the said First Information Report. Consequently Hariram has not denied that he had only direct motive against the deceased Bhura. However, simultaneously it has to be held that the other two appellants Gajraj and Mulu had absolutely no direct motive as Hariram had. ( 15 ) THE fact remains therefore, that when Bhura had proceeded a little distance away from the informant, hue and cry was raised which made the informant and other witnesses to rush to the place of occurrence and then noticed the appellant running away. Consequently the real start of the incident has not been noticed either by Sitaram or by the informant Maheshwaridin. The use of axe as a weapon can of course cause lacerated wound as well as incised wound depending upon which pan of the axe lands on the body. Therefore, the lacerated wounds and the incised wounds exciting on the person of the deceased Bhura could be caused by axe. Therefore, the use of axe as a weapon of assault is well established and corroborated by the evidence on record. ( 16 ) THE two eyewitnesses have deposed that the spear, which was used by Mulu, was having a blade which was in the shape of Neem ki patti While it cannot be said that the incised wounds on the body of the deceased could not be caused by the type of the spear described by the eyewitnesses the statement of Dr. M. P. Gupta P. W. 8 that he had not noted any specific stab or punctured wound, compels this court to give the benefit, that may be that the spear did not cause any injury on the deceased. In this very connection it should be noted that even Mulu as held above, did not have any prior motive for the incident. Incidentally, the evidence discussed above leaves no room for doubt as regards the wielding of axe by Hariram so as to liquidate the life of Bhura. Even Gajraj was not specified with any blow and in the absence of any motive as against him, by way of abundant, caution he may also be given benefit of doubt. ( 17 ) IN view of the aforesaid discussion, while the prosecution case stands fully proved and established by way of abundant caution, Gajraj and Mulu are extended the benefits of doubt. ( 18 ) THE result of the aforesaid discussion is that this appeal is partly allowed. The conviction of Hariram under section-302/34 IPC and sentence of Imprisonment for life as awarded by the trial court is maintained. He is on bail. He will surrender to his bail bonds to serve out the sentence awarded. ( 19 ) THE appeal of appellant Gajraj and Mullu is allowed. They are given the benefit of doubt. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties stands discharged. Appeal allowed. .