OPINION 1. Appellants were found guilty for offence u/s. 302 I.P.C. read with section 149 I.P.C. by judgment and order dated 24.4.1990 passed in S.T. No. 249/87 and all the appellants were sentenced to suffer imprisonment for life. Aggrieved by their convictions and sentences, they have preferred the present appeal, which came up for consideration before a Division Bench of this Court consisting of Hon'ble R.D. Shukla and J.G. Chitre, JJ. The learned Judges constituting the Division Bench differed in their opinion in relations to all appellants other than appellant No. 3 Gajraj Singh, appellant No.8 Meharban Singh and Appellant No.9 Baboo Singh. While Chitre J. maintained conviction and sentence of all the appellants, Shukla J. directed for acquittal of all the appellants excepting the aforesaid appellant Nos. 3, 8 and 9. 2. As the learned Judges constituting the Division Bench were divided in their opinion, the matter has been placed before me as contemplated u/s. 392 of the Code of Criminal Procedure. 3. According to the prosecution one day prior to the date of the incident i.e.29.11.1986 accused Bane Singh, (since acquitted, by the Trial Court) had gone to the house of Pyaremia but he was not present and said Bane Singh left a message, according to which deceased Abdul Hadi alias Munna Pehalwan and Pyaremia were invited to Baniakhedi village for sorting out the land dispute. According to the prosecution, prior to the date of occurrence deceased Munna Pehalwan and Gulam Ahmed Khan, purchased some land in village Baniakhedi in auction and the land was cultivated through assistance of two persons namely Radheshyam and Sardar. There was some dispute between Munna Pehalwan and Pyaremia on one side and Bane Singh Darbar, Sajjan Singh and his sons and their servant on the other said. As stated earlier, Bane Singh passed a message that Munna Pehalwan and Pyaremia should come to the village to settle the dispute. The aforesaid two persons proceeded towards village Baniakhedi on 30.11.1986 at 8 A.M. by scooter. One scooter was driven by Munna Pehalwan and P.W. 13 Ismail was pillion rider. P.W. 2 Pyaremia was driving another scooter and P.W. 3 Sajid Painter was going alongwith him on the said scooter. The aforesaid two persons proceeded towards village Baniakhedi on 30.11.1986 at 8 A.M. by scooter. One scooter was driven by Munna Pehalwan and P.W. 13 Ismail was pillion rider. P.W. 2 Pyaremia was driving another scooter and P.W. 3 Sajid Painter was going alongwith him on the said scooter. According to the prosecution when the aforesaid persons were proceeding towards village Baniakhedi accused Babu singh, Sajjan Singh, Gajraj Singh, Gulab Bhil, Kriparam Bhil, Kesu Bhil, Kalu and Atmaram Bhil were standing on the road near a Babul tree. According to the prosecution when Munna Pehalwan reached there all the aforesaid accused persons started assaulting him by swords, farsa, axes and sticks. When Munna Pehalwan sustained injury, Ismaile, the pillion rider, seeing the same ran towards Juwar crop. The other scooter driven by Pyaremia alongwith his pillion rider Sajid Painter, after seeing the occurrence turned back and proceeded towards Indore. According to the prosecution, the aforesaid three persons namely Ismaile (P.W. 13), Pyaremia (P.W. 2) and Sajid Painter (P.W. 3) are eye-witnesses to the occurrence. According to the prosecution, accused Sajjan Singh stated that Munna Pehalwan be burnt and consequence of their act shall be taken care of by Bane Singh Darbar. According to the prosecution Pyaremia, sent a message to the family members of Munna Pehalwan through a bus driver, who met in the way, and he went to Depal Pur Police Station to lodge the F.I.R. 4. Girish Kumar (P.W. 21) Police Officer of Depalpur P.S. thereafter went to the place of the occurrence with witnesses Pyaremia and Sajid Painter at about 4 P.M. on the same day. Sajid Painter (P.W. 8) identified the dead body of the deceased, Munna Pehalwan, which was burnt with several wounds on his body. They also found a partially burnt scooter near the field of Bane Singh. In one of the leg of the deceased, which was burnt, a 'Chappal' was found. The dead body was identified by Munna's brother and Pyaremia as that of Munna Pehalwan. 5. The prosecution story, further is that when the deceased left Indore on 30.11.1986 at 8 A.M. he was carrying a small rexine bag gifted to him by Laxmichand (P.W. 6). Munna Pehalwan was wearing a gold ring also. The dead body was identified by Munna's brother and Pyaremia as that of Munna Pehalwan. 5. The prosecution story, further is that when the deceased left Indore on 30.11.1986 at 8 A.M. he was carrying a small rexine bag gifted to him by Laxmichand (P.W. 6). Munna Pehalwan was wearing a gold ring also. In view of the information provided by the accused themselves, u/s. 27 of the Evidence Act, weapons like swords, Pharsa, axes and sticks were recovered from one room. The rexine bag and gold ring were also seized from grain storing boxes. In view of the information given by accused the rexine bag was seized from accused Meharban Singh, who took out the same from the grain storing boxes from the house of accused Baboosingh and was identified in test identification parade. Golden Ring seized from accused Baboosingh, which he took out from a box meant for storing grain, bearing letter 'H' and according to the prosecution the same indicated that it belonged to Abdul Hadi alias Munna Pehalwan. The rexine bag was identified by P.W. 6, Laxmichand whereas ring was identified by P. W. 10, Sultan Ahmed, younger brother of the deceased. 6. The post-mortem examination was conducted by P.W. 3, O.L. Mimrot and P.W. 16, Dr. Malhar Dindorkar, who noticed several incised wounds on the person of the deceased and burns on a number of portions of the body. The doctor found skull bone of the deceased cut at places, the injuries were found to be ante mortem and in the opinion of the doctor death has occurred because of haemorrhage, shock and syncope as a result of the aforesaid injuries. 7. The defence of the accused persons is of false implication because of land dispute. However, no defence witness was examined. 8. Shri B.A. Nigam and Shri Jai Singh, representing the aforesaid three appellants, whose conviction has been maintained by both the learned Judges, pray for their acquittal also and their submission is, that sitting as a third Judge, I can direct for their acquittal. They submitted that I am not bound by the opinion of the learned Judges in relation to the appellants Nos. 3, 8 and 9 and competent enough to pass order of acquittal of those appellants also notwithstanding that the learned Judges constituting the Division Bench have maintained their conviction. They submitted that I am not bound by the opinion of the learned Judges in relation to the appellants Nos. 3, 8 and 9 and competent enough to pass order of acquittal of those appellants also notwithstanding that the learned Judges constituting the Division Bench have maintained their conviction. In support of the aforesaid submission reliance has been placed on the decision of the Apex Court in the case of Baboo and others v. State of U.P. ( AIR 1965 SC 1467 ), Hatubha and others v. State of Gujrat ( AIR 1970 SC 1266 ) Union of India v. B.N. Anantha Padam Nabhiah ( AIR 1971 SC 1836 ), State of Andhra Pradesh v. P. T. Appoiah and another ( AIR 1981 SC 365 ). 9. Shri Bhojwani appearing on behalf of the Respondent State submits that I am competent to deal with, only the matter in which the learned Judges constituting the Division Bench have differed and I have no power to reopen the whole case. In support of the aforesaid submission, reliance was placed on a decision of the Supreme Court in the case of Bhagatram v. State of Rajasthan ( AIR 1972 SC 1502 ). 10. Before I advert to the authorities relied on by the learned counsel representing the respective parties, it is apt to refer section 392 of the Code of Criminal Procedure which provides for procedure where Judges of Court of Appeal are equally divided, section 392 Cr.P.C. reads as follows :- "Sec. 392. Procedure where Judges of Court of Appeal are equally divided – "When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion: Provided that if one of the Judges constituting the Bench or, where the appeal is laid before another Judge under this section, that Judge so requires, the appeal shall be re-heard and decided by a larger Bench of Judges." 11. To me it appears to be plain that when the Judges constituting the Bench are divided in opinion the appeal is required to be laid before another Judge and the Judgment or order shall follow the opinion of the third Judge. The word 'opinion', according to Black Law Dictionary (6th Edition) in the present context means as' follows :- "The statement by a judge or Court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailling the reasons upon which the judgment is based." Thus, the opinion of the Judges constituting the Division Bench is one and the same in relation to the three accused persons, whose conviction has been maintained by both the learned Judges. As such the learned Judges are not divided in their opinion in relation to the aforesaid three accused persons and thus, I find myself incompetent to reopen their case. 12. Now adverting to the authorities relied on by the learned counsel for the appellants, in case of Baboo and others v. State of U.P. (supra), while interpreting Sec. 429 Cr.P.C., which is in similar terms as that of Sec. 392 Cr.P.C. 1973, the apex Court held as follows :- "The section contemplates that it is for the third judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit. In our judgment, it was sufficient for Takru, J. to have said on the question of the First Information Report that he did not consider it necessary to decide the point but if it was necessary he was in agreement with all that Mathur, J. had said. There was, therefore, a proper decision by Takru J. and the certificate could not be based upon the omission to discuss the First Information Report and the doubts about it." (Emphasis supplied). Thus, the third Judge is free in resolving the difference between two Judges constituting the Division Bench. As I have held earlier that the Judges constituting the Division Bench have not differred in relation to the aforesaid three appellants there is no occasion for resolving the difference. Thus land the authority relied on, is clearly distinguishable. 13. In case of Hatubha and others v. State of Gujrat (supra) while interpreting See. As I have held earlier that the Judges constituting the Division Bench have not differred in relation to the aforesaid three appellants there is no occasion for resolving the difference. Thus land the authority relied on, is clearly distinguishable. 13. In case of Hatubha and others v. State of Gujrat (supra) while interpreting See. 429 of the Code of Criminal Procedure, 1898, the Apex Court held as follows :- "Counsel for the appellants contended first that the third learned Judge under section 429 of the Criminal Procedure Code could only deal with the differences between the two learned Judges and not the whole case. The same contention had been advanced before Mehta J. in the High Court who rightly held that under section 429 of the Criminal Procedure Code the whole case was to be dealt with by him. This Court in Babu v. State of Uttar Pradesh, (1965) 2SCR 771 = ( AIR 1965 SC 1467 ), held that it was for the third learned Judge to decide on what points the arguments would be heard and therefore, he was free to resolve the differences as he thought fit. Mehta J., here dealt with the whole case. Section 429 of the Criminal Procedure Code states' that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion therefore, shall be laid before another Judge of the same Court and such judge, after such hearing, if any as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. Two things are noticeable, first, that the case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case." The aforesaid judgment makes it clear that when the matter is laid before the Third Judge, he can deal with the whole case. This clearly means that the Third Judge is not obliged to agree with one or other reasoning given by the dissenting Judges. The Third Judge may not at all agree with the reasoning of any of the learned Judges and can altogether come to a different finding in relation to the points. This clearly means that the Third Judge is not obliged to agree with one or other reasoning given by the dissenting Judges. The Third Judge may not at all agree with the reasoning of any of the learned Judges and can altogether come to a different finding in relation to the points. However, when the learned Judges constituting the Division Bench have not differred in their opinion, the third Judge cannot take a different view. The Apex Court decision that the Third Judge can deal with the whole case 'does not mean that I am competent to deal with the whole case and direct acquittal of the aforesaid three appellants, notwithstaning the fact that the Division Bench concurred in their opinion in relation to the aforesaid three appellants and maintained their conviction and dismissed the appeal. 14. In the case of Union of India v. B.N. Anantha Padam Nabhiah (supra) the Apex Court considered the scope of hearing by the third Judge when there is difference of opinion between the learned Judges constituting the Division Bench, reference was made to paragraphs 5 and 6 of the aforesaid judgment which read as follows :- "5. A question arose as to whether a new contention as to the competency of the Magistrate at Delhi to sanction investigation could have been raised before the third learned Judge when it had not been raised before the Division Bench. Counsel for the respondents contended that under section 429 of the Code of Criminal Procedure the case was to be laid before the third learned Judge and the third learned Judge was empowered to deal with the entire case and the judgment and order would follow the opinion of the third learned Judge. "6. This question came up for consideration in the recent unreported decision in Hethubha v. State of Gujrat (Criminal Appeal No. 100 of 1967, D. 13.3.1970) - (Since reported in AIR 1970 SC 1266 ) It was contended that case on behalf of the appellants that the third learned Judge could only deal with the differences between the two learned judges and not with the whole case. This Court held that the third learned Judge-could deal with the whole case. This Court held that the third learned Judge-could deal with the whole case. The language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Court of Appeal shall be laid before another Judge of the same Court. The other noticeable feature in section 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge. As pointed out earlier dealing with the whole case will not tantamount to confer power on the third Judge to differ with the final conclusion reached by the Division Bench. Even at the costs of repetition, it is stated that the learned Judge did not differ in their opinion in relation to the aforesaid three appellants. Thus, this authority relied on is also of no assistance to the appellants." 15. In the case of State of Andhra Pradesh v. P. T. Appoiah and another ( AIR 1981 SC 365 ), the Apex Court while considering the scope of Sec. 429 of the Code of Criminal procedure, 1898, after considering the three authorities agreed with the proposition that the third Judge can deal with the whole case. In this case the learned Judges constituting the Division Bench were divided in their opinion in relation to the nature of the offence committed by the accused and in, that background the Court held that the third Judge to whom the case is referred can deal with the whole case and acquit the accused. However, in the present case there is no difference amongst the learned Judges constituting the Division Bench regarding the offence committed by the aforesaid three appellants and both of the learned Judges found them guilty u/ss. 302/149 I.P.C. In such a situation the authority relied on by the learned counsel is clearly distinguishable. 16. However, in the present case there is no difference amongst the learned Judges constituting the Division Bench regarding the offence committed by the aforesaid three appellants and both of the learned Judges found them guilty u/ss. 302/149 I.P.C. In such a situation the authority relied on by the learned counsel is clearly distinguishable. 16. Shri Bohjwani, as stated earlier submitted that in relation to the aforesaid three appellants, I have no power to reopen their cases and direct for their acquittal and reliance was placed in support of the aforesaid submission on the judgment of the Apex Court in the case of Bhagatram's v. State of Rajasthan ( AIR 1972 SC 1502 ), Bhagatram's case (supra) was considered by the Apex Court in the case of State of Andhra Pradesh v. P.T. Appoiah (supra) and the Apex Court held as follows :- "In view of these authorities which were not noticed in Bhagat Ram's case ( AIR 1972 SC 1502 ) we are unable to agree that the learned third judge in the instant case to whom it was referred under section 429 overstepped the limits of his jurisdiction in deciding the case as he did." 17. Thus, I am of the considered opinion that the conviction and sentence of the aforesaid three appellant" are final and cannot be reopened by me. 18. Now I advert to the merit of the case of the rest of the appellants. 19. The prosecution to prove the guilt of the accused persons examined altogether 21 witnesses. P.W. 2, Gulam Ahmed Khan@Pyaremia, P.W. 8, Sajid and P.W. 13, Mohammad Ismaile, claim to be eye-witnesses of the occurrence. Shukla J, disbelieved the evidence of P.W. 2, Gulam Ahmed Khan, in relation to participation of the appellants excepting appellant No.3, Gajraj, Appellant No.8, Meharban and Appellant No.9, Babusingh. According to his lordship P.W. 2 stated about the participation and assault by accused Meharban, Kalusingh and Atmaram by sword, Dule Singh, Gajraj Singh and Atmaram by pharsa and Sajjan, Gulab, Kesu and Kriparam by a 'Lathi'. His Lordship found that allegation against accused Duley, Gajraj and Atmaram, to have assaulted the deceased with Pharsa and Sajjan, Gulab, Kesar and Kriparam by lathi, did not find corroboration from the medical evidence. In his opinion, the doctor did not find any injuries on the person of the deceased, caused by Farsa and lathi. 20. His Lordship found that allegation against accused Duley, Gajraj and Atmaram, to have assaulted the deceased with Pharsa and Sajjan, Gulab, Kesar and Kriparam by lathi, did not find corroboration from the medical evidence. In his opinion, the doctor did not find any injuries on the person of the deceased, caused by Farsa and lathi. 20. Similarly, Shukla J, disbelieved the evidence of P.W. 3 Ismaile in relation to all the appellants excepting appellants Nos. 3, 8 and 9 and for holding so he referred to the evidence of P.W. 2 Gulam Ahmed Khan and found discrepancy in the same. P.W. 2, Gulam Ahmed, has stated about the participation of all the appellants whereas P.W. 13, Ismaile stated that only three persons assaulted the deceased Abdul Hadi alias Munna. The discrepancy as found in the evidence of P.W. 13, Mohammad Ismaile, and P.W. 2, Gulam Ahmed, in the words of the learned Judge reads as follows :- "From the statement of these two witnesses two versions came out. According to the version of Ismail three persons assaulted by sword and according to version of Gulam Ahmed alias Pyaremia initially three persons assaulted by the swords thereafter three persons assaulted by Farsa and thereafter person assaulted by Lathi. In such a situation the inference which goes in favour of the accused has to be drawn". 21. Shri Shukla J. further did not place reliance on the evidence of P.W. 8, Sajid, for maintaining the conviction of all other appellants excepting appellants Nos. 3, 8 and 9. The reasons assigned by the learned Judge in his own words reads as follows :- "There is discrepancy as to the weapons used, between the statement of this witness and Gulam Ahmed Khan alias Pyaremia. According to P.W. 2, as stated in the examination-in-chief Gajrajsingh, Atmaram had Farsi, while according to this witness Gajraj had a sword and Atmaram had a Lathi. Gulam Ahmed was cross-examined and in paragraph No. 31 of his statement• he had accepted that he saw Sajjan, Atmaram and Gulab from back side. It is difficult to believe that he could identify with certainty these three persons. There is discrepancy as to the weapons kept by these persons. So far as the initial assault by three persons as stated by Ismaile that Meharban Singh, Gjraj. It is difficult to believe that he could identify with certainty these three persons. There is discrepancy as to the weapons kept by these persons. So far as the initial assault by three persons as stated by Ismaile that Meharban Singh, Gjraj. Singh and Babu Singh, there appears to be unanimity between the statement of these witnesses i.e. Ismaile and P.W. 8, Sajid". 22. Shukla J. further observed that even if the presence of other accused persons in the field is accepted, in the absence of any pre-planning and pre-mediation, it cannot be accepted that they had assembled for assaulting Abdul Hadi alias Munna. While recording acquittal of other accused persons excepting appellant No.3 Gajraj, Appellant No.8, Meharban and Appellant No.9 Babu Singh, Shukla J. further took into consideration that the prosecution has not explained the protruding of the tongue of the deceased found by the two doctors. 23. Chitre J. over-ruled the criticism levelled against the prosecution witnesses namely Pyaremia, Sajid Painter and Ismaile, the discrepancy pointed out in their evidence was not found sufficient to throw out their testimony. As regards the presence of P.W. Ismaile at the place of occurrence, to the criticism of the appellants that he escaped without sustaining any injury, the learned Judge answered the same in the following words :- "Apparently, it may appear to be improbable and unnatural but they are number of incident when such persons escaped unhurt. In the absence of any good reasons on this count, only presence of Ismaile, Pyaremiya and Sajid Painter cannot be brushed aside. Thus, the learned Judges have primarily differred on the question of appreciation of evidence of the eye-witnesses referred to above." 24. Shri Nigam and Shri Jai Singh, appearing on behalf of the appellants repeated vehemently the submission made by them before the Division Bench. It has been submitted that the F.I.R. Ex. P/12, is concocted and cooked up. It is further submitted that although the F.I.R. was recorded after a long delay but the same has been ante dated. It may be stated that it was the information given by P.W. 2, Gulam Ahmed, which led to the lodging the F.I.R. In this connection it is relevant to refer to the evidence of informant Pyaremiya and Sajid who were going alongwith the deceased and they fled away from the place of occurrence after seeing the assault. It may be stated that it was the information given by P.W. 2, Gulam Ahmed, which led to the lodging the F.I.R. In this connection it is relevant to refer to the evidence of informant Pyaremiya and Sajid who were going alongwith the deceased and they fled away from the place of occurrence after seeing the assault. After travelling for a long distance reached the police station and the information was given at about 1 P.M. Evidence of P.W. 21, Girish Kumar, Officer-in-charge, shows that he alongwith police personnel reached the place of the occurrence at about 4 P.M. Thereafter necessary Panchnamas were drawn in respect of the place of the occurrence and some articles were also seized from there. After completing the preliminary investigation at the spot, the said witnesses arranged a truck and brought the deadbody to Depalpur Police Station. This finds corroboration from the evidence of P.W. 10, Sultan Ahmed, also. P.W. 21, Girish Kumar, Investigating Officer, further stated that a copy of the F.I.R. was sent to the Magistrate on 30.11.1986. Thus, I find that the grievance made by the learned counsel that the F.I.R. was ante-dated does not impress me. 25. As stated in the preceding paragraph of this judgment, the learned Judges differred in their finding in relation to the truthfulness or otherwise of P.W. 2, Gulam Ahmed and P.W. 8, Sajid, and P.W. 13, Mohammad Ismaile vis a vis appellants other than appellants Nos. 3, 8 and 9. It is to be borne in mind that on the basis of these eye-witnesses, the Division Bench maintained the conviction of the three appellants namely Appellants Nos. 3, 8 and 9. At the first instance the learned counsel for the appellants submitted that the eye-witnesses are interested and partisan witnesses and their evidence be discarded on this ground alone. In this connection my attention has been drawn to the statement of P.W. 2, Gulam Ahmad, in paragraph 1 of his statement wherein he has stated that the deceased was his friend and partner also. My attention has been further drawn to paragraph 19 of the cross-examination of this witness wherein he has stated that P.W. 13, Ismaile was employed in his bus, and he used to load and unload luggage in his bus. My attention has been further drawn to paragraph 19 of the cross-examination of this witness wherein he has stated that P.W. 13, Ismaile was employed in his bus, and he used to load and unload luggage in his bus. My attention has been further drawn to paragraph 11 of the evidence of P.W. 13, Ismaile, wherein he has stated that he is a 'Hummal' and he used to go to village Baniya Khedi, where the land is situated, alongwith the deceased and P.W. 2, Gulam Ahmed. From the aforesaid statement, learned counsel appearing on behalf of the appellants impressed upon me that they are interested witnesses and in that view of the matter their evidence should be thrown out on this ground alone. In support of the aforesaid submission, the learned counsel placed reliance on judgment of the Apex Court in the case of Gurdial Singh v. State of Punjab ( AIR 1994 SC 1072 ), State of Punjab and Gurmej Singh v. Jit Singh and others and Ram Ashrit and others v. State of Bihar ( AIR 1981 SC 942 ). 26. My attention has been drawn to the following passage of the Apex Court in the case of Gurdial Singh v. State of Punjab (supra) : "The medical evidence establishes that the deceased died due to gun injuries. The accused, however, pleaded not guilty and stated that Hari Singh (P.W. 10) was not living with the deceased and his testimony is doubtful. He was living in a separate house thereby suggesting that Hari Singh (P.W. 10) could not witness the occurrence. On examination it is found that Hari Singh was living in a separate house. In his defence he also examined P. W. 2 which shows that there was hostility between the deceased and the appellant and all the members of the family were interested in implicating the appellant falsely." Learned counsel further laid emphasis on the following paragraph of the judgment of the Supreme Court in the case of State of Punjab and Gurmit Singh v. Jit Singh and others (supra):- "The Division Bench of the High Court having examined the evidence of the two-eyewitnesses came to the conclusion that they were highly interested witnesses and whether their presence can be accepted at all, is the question. P.W. 13 is in no way related to the deceased or to the P.W. 2. P.W. 13 is in no way related to the deceased or to the P.W. 2. He gave an explanation for his visit to the tubewell alongwith P.W. 2 before the Police Station was to irrigate the land of P.W. 2 whereas in the present deposition he prevaricated and deposed that he went to the tubewell of the deceased to inform him about the collection of meagre amount of money for present the same to the contesting candidate. The High Court noticed that the prevarication shows that he has deliberately improved his version from stage to stage. When interested witnesses are examined it is a well settled that the evidence has to be tested in the light of the probabilities and the previous statements and the surrounding circumstances. We are satisfied that their evidence does not inspire any confidence. In the F.I.R. it is stated that P.W. Nos. 2 and 3 went to irrigate the field from that tubewell water but while giving statements at the trial they deposed that only P.W. 2 was to irrigate the field by working the tubewell while P. W. 3 had accompanied him to the tubewell to meet the deceased as mentioned above. Their presence thus becomes doubtful from the fact that they have not come forward with a proper explanation for giving two versions. In these circumstances we cannot say that the High Court went wrong in ordering acquittal. These appeals are dismissed accordingly." My attention has also been drawn to para 12 of the judgment of the Apex Court in the case of Ram Ashrit and others v. State of Bihar (supra) which reads as follows :- "Furthermore, all the material witnesses of the prosecution, namely P.Ws. 6, 7, 8, 9, 12 and 16 are either inter related or otherwise interested in the prosecution. Therefore, before their testimony could be safely acted upon it had to pass the test of close and severe scrutiny. We have examined the evidence of these witnesses carefyully and find that their evidence was intrinsically improbable and unreliable. 6, 7, 8, 9, 12 and 16 are either inter related or otherwise interested in the prosecution. Therefore, before their testimony could be safely acted upon it had to pass the test of close and severe scrutiny. We have examined the evidence of these witnesses carefyully and find that their evidence was intrinsically improbable and unreliable. The core of the prosecution case was that the thirteen appellants and others came armed in a body and forcibly removed and carried away the wheat grain which was lying thrashed in the thrashing floor of P. W. 12, and whilst committing this dacoity or removing or carrying away the wheat, they caused injuries to P.W. 12 and other including the deceased Sheo Nath Chaudhary. We find that the substratum of this story viz. that there was a dacoity or forcible theft of wheat grain stood improbabilised, if not falsified, by the surrounding circumstances of the case." 27. In Gurdial Singh v. State of Punjab (supra) the Apex Court did not throw out the evidence of the prosecution witnesses only on the ground that there was hostility between the deceased and the appellant. To disbelieve the prosecution case the hostility of one of the prosecution witnesses was also taken into consideration. Similarly in the case of State of Punjab and Gurmit Singh (supra) the Apex Court confirmed the judgment of High Court as the later has found that the presence of the interested witnesses at the place of occurrence was itself doubtful. Thus, the evidence of the interested witnesses in the aforesaid case were not thrown out merely on the ground that they are interested. In the case of Ram Ashirt v. State of Bihar (supra) the Apex Court found the evidence of the witnesses to be intrinsically improbable and unreliable and further they have interest in the prosecution, their evidence was disbelieved. Therefore, in none of the case relied by the learned counsel, the Apex Court thrown the evidence of the prosecution witnesses only on the ground of they being interested. 28. Now in view of catena of decisions of the Apex Court, it is well settled that the evidence of the prosecution witnesses cannot be thrown out only on the ground that they are interested witnesses. 28. Now in view of catena of decisions of the Apex Court, it is well settled that the evidence of the prosecution witnesses cannot be thrown out only on the ground that they are interested witnesses. In case witnesses are found to be interested, that puts the Court to guard and prudence demands that the evidence of such witnesses be examined carefully and cautiously. 29. Now adverting to the submission in relation to the individual witnesses, the learned counsel for the appellants submitted that no reliance should be placed to the evidence P.W. 2, Gulam Ahmed. It is submitted by the learned counsel that the evidence of this witness be not believed as according to his own evidence he remained at the place of occurrence for a very little time and it was not possible for him that he could have seen the occurrence. It has been further submitted that visit of Banesingh, a day earlier to the date of the occurrence, has not been stated in the F.I.R. My attention has been drawn to paragraph 36 of the evidence of P.W. 2 about the answer of the aforesaid witness to the omission of the aforesaid fact in the F.I.R. wherein he has stated that he did not incorporate the aforesaid statement in the F.I.R. because of nervousness. While attacking the evidence of the aforesaid witness, my attention, has been drawn to the statement of this witness, in paragraph 48, wherein he has admitted that he did not narrate about the aforesaid statement to anyone. 30. Having considered the submission of the learned counsel for the appellants, I am of the view that according to the prosecution the moment, the deceased reached near the field of the appellant Banesingh, he was assaulted and after seeing the same he turned his scooter and returned. Thus, there is no material to discredit the evidence of this witness only on the ground that he turned back his scooter. This witness has stated in his evidence that he after seeing the occurrence turned his scooter and went to Depalpur Police Station and lodged the F.I.R. Thus, there is no substance in the submission of the learned counsel for the appellants that this witness did not had sufficient time to see the entire incident. 31. This witness has stated in his evidence that he after seeing the occurrence turned his scooter and went to Depalpur Police Station and lodged the F.I.R. Thus, there is no substance in the submission of the learned counsel for the appellants that this witness did not had sufficient time to see the entire incident. 31. As regards the submission of the learned counsel regarding omission of the fact that Bane Singh visited a day earlier to the day of the occurrence and found omitted in the F.I.R., I am of the view that same is not a material omission to discredit the entire evidence of this witness. It is well settled that the F.I.R. is not an encylopaedia but it is expected to contain material facts. In the present case the material fact of the assault on the deceased, names of the appellants, manner in which the assault took place, have all been incorporated and as such I am not inclined to reject the evidence of P.W. 2 only on the ground of the aforesaid omission pointed out by the learned counsel for the appellants. 32. As regards the criticism levelled against this witnesses of non-stating about the incident to any other persons, it is relevant here to state that the said witness stated about the occurrence to the driver of the bus. Thereafter, he seems to be in hurry to reach the Police Station and in that state of mind it was not expected that he will go on stating about the occurrence to each and every person to whom he knew from before. The deceased was his friend and partner and he must be in a hurry to lodge the F.I.R. and in that view of the matter, the evidence of this witness cannot be disbelieved on the aforesaid ground urged by the learned counsel appearing for the appellants. 33. Another criticism levelled on this witness is that he fled away from the place of the occurrence after turning the scooter and in that view of the matter the vivid description given by him about the prosecution case should not be believed. My attention has been drawn to Paragraph No.9 of the evidence of this witness wherein he has stated that the scooter was turned and he alongwith another witness ran away from the place of the occurrence. My attention has been drawn to Paragraph No.9 of the evidence of this witness wherein he has stated that the scooter was turned and he alongwith another witness ran away from the place of the occurrence. True it is that this witness has stated about the role played by each of the accused and he has also stated that it was the appellant Meharban Singh, who first assaulted the deceased by sword which hit him on his head. Thereafter, appellant Babu Singh gave sword blow to the deceased and the same also caused injury on the head. Appellant Gajraj Singh, according to this witness assaulted the deceased on his shoulder. He has further stated about the assault of the accused Dule Singh, Kriparam and Gulab by Farsa. This witness has also stated about the assault made by Lathi by the accused Kesu, Kalu, Atmaram and Sajjan Singh. It is not the prosecution case that the aforesaid incident took place at intervals. The deceased was assaulted by the accused persons one after another and this witness having clearly stated about the manner in which the deceased sustained injuries, the same cannot be rejected on the ground that this witness ran away from the place of the occurrence on a scooter. This witness has clearly stated that after seeing the entire incident the scooter was turned and he alongwith another witness ran from the place of the occurrence and in the light of the aforesaid statement, I am not prepared to accept the submission of the learned counsel that this witness could not have seen the occurrence. 34. The learned counsel for the appellants submitted that the manner in which the entire incident has taken place, it is expected that P.W. 3, should have also sustained some injuries from the prosecution party and admittedly he has not sustained any injury. Thus, according to the learned counsel it is absolutely improbable and on this ground alone his testimony is fit to be disbelieved. My attention has been drawn to the paragraph 40f this witness wherein he has stated that he and the deceased were going on the same scooter. This witness has stated that appellant Meharban Singh, took out sword concealed in Shawl and assaulted the deceased on his head, appellant Baboo Singh and Gajraj Singh assaulted the deceased by sword kept behind Babul tree. This witness has stated that appellant Meharban Singh, took out sword concealed in Shawl and assaulted the deceased on his head, appellant Baboo Singh and Gajraj Singh assaulted the deceased by sword kept behind Babul tree. Thereafter, this witness got down from the scooter and ran away from the place of the occurrence. 35. Learned counsel submits that this witness was pillion rider alongwith the deceased and when deceased being assaulted by sword it was but natural that he must have sustained some injury. It is relevant here to state that the target of the appellants was the deceased, he was being assaulted by swords and in view of the fact that the target was focused, no infirmity could be find out from the fact that this witness P.W. 13, Ismaile Mohammad, did not sustain any injury. Thus, in my opinion, evidence of this witness cannot be thrown out merely on the ground that he did not sustain any injury in the occurrence. 36. Learned counsel for the appellants further persuaded me to discredit the testimony of this witness on the ground that he being close to the deceased, it was expected that he would inform about the occurrence to the family of the deceased at Indore or P.W. 2, by whom he was employed. My attention has been drawn to the statement of this witness in paragraph 13 wherein he has stated that he has not given any information to anyone. My attention has been further drawn to paragraph 38 of his evidence wherein he has stated that he remained in the house till 1.12.1986. In the submission of the learned counsel, it is expected from this witness that he would have informed about the occurrence to the family of the deceased about the occurrence or at least to P.W. 2, who was his employer and the aforesaid conduct of this witness is absolutely unnatural. It is relevant here to state that the deceased was a Muslim whereas the accused persons were Hindus. This witness has stated in paragraph No.6 of his evidence that after he reached his house, he did not go outside because he apprehended that a riot may break. In view of the explanation given by this witness I do not find any thing improbable in the conduct of this witness. This witness has stated in paragraph No.6 of his evidence that after he reached his house, he did not go outside because he apprehended that a riot may break. In view of the explanation given by this witness I do not find any thing improbable in the conduct of this witness. Consequently, I do not find any merit in this submission of the learned counsel for the appellants and it is rejected. 37. A common ground has been urged by the learned counsel to disbelieve the evidence of P.W. 2 and P.W. 8 on the ground that claim made by them to have seen the occurrence from the place is not possible. In this connection my attention has been drawn to the evidence of P.W. 2 at Paragraph No. 29 wherein he has stated that the deceased was about 30 yards in front of him and there was 5-6 ft. slope downwards and there is Babul tree by the side of Puliya having hight of 10 feet by 10 feet. In view of the aforesaid statement made by the witness, the learned counsels submitted that this witness and P.W. 8, who was accompaning him, could not have seen the occurrence. It is relevant here to say that inability to see the incident because of the location and actually not seeing the occurrence are entirely different situation. It is relevant here to state that neither P.W. 2 nor P.W. 8 was given any suggestion that they could not have seen the occurrence from where they have claimed to have seen, as such I am not prepared to accept submission of the learned counsel that claim made by them that they have seen the occurrence is fit to be disbelieved on this ground. These witnesses have stated that they have seen the occurrence and there is nothing to discredit their evidence on this score. 38. Learned counsel for the appellants further submits that independent and material witnesses have not been examined and in that view of the matter the accused persons are entitled to get benefit of doubt. In this connection, my attention has been drawn to statement P.W. 2 at Paragraph No. 43 and 44 wherein he has stated that Radheshyam and Sardar were engaged in harvesting in their field. This witness has further stated that in other fields also other labours were engaged in harvesting. In this connection, my attention has been drawn to statement P.W. 2 at Paragraph No. 43 and 44 wherein he has stated that Radheshyam and Sardar were engaged in harvesting in their field. This witness has further stated that in other fields also other labours were engaged in harvesting. Similarly, my attention has been drawn to paragraph 27 of the evidence of P.W. 8, wherein he has admitted the presence of Radheshyam and Sardar, close to the place of the occurrence. He has further admitted about the presence of about 20 labours in a field, harvesting Juwar. It is well settled that the prosecution is not expected to examine witnesses to multiply its number. In ease the witnesses produced, support the prosecution case the prosecution story cannot be thrown out on the ground of omission to examine other witnesses. According to the prosecution the deceased was not the resident of the village, near which the occurrence has taken place and in that view of the matter, the prosecution story cannot be disbelieved on the ground that Radheshyam, Sardar or other villagers, who were engaged in the harvesting of the field near the place of the occurrence were not examined. To put the record straight, it is stated that in support of the aforesaid submission, the learned counsel has placed reliance on a judgment of this Court in the case of Gopaldas v. District Judge, Indore and others ( AIR 1990 MP 279 ). In the aforesaid judgment while deciding the writ-petition this Court held that while exercising the jurisdiction under Article 227 of the Constitution of India, this Court can interfere with the finding of fact, if the finding recorded is perverse or based on no material. I fail to understand how this authority relied on by the appellants can apply in the facts and circumstances of the present case. Thus, I negative this submission of the learned counsel for the appellants also. 39. The learned counsel for the appellants submitted that oral evidence of the eye-witnesses namely P.W. 2, 8 and 13 did not find corroboration from the evidence of P. W. 1 and P. W. 6, the doctors, who have conducted the post-mortem examination. In such a situation, the learned counsel, submits that the appellants be acquitted. 39. The learned counsel for the appellants submitted that oral evidence of the eye-witnesses namely P.W. 2, 8 and 13 did not find corroboration from the evidence of P. W. 1 and P. W. 6, the doctors, who have conducted the post-mortem examination. In such a situation, the learned counsel, submits that the appellants be acquitted. In support of the aforesaid submission, reliance has been placed on a judgment of the Apex Court in the case of B.N. Singh v. State of Gujarat ( AIR 1990 SC 1628 ) and in case of Chakki v. State of M.P. ( 1990 MPJR 736 ). It is relevant here to state that S.N. Singh's case (supra) has been relied upon by this Court in Chhakki's case (supra) and the relevant paragraph whereof reads as follows :- "Now, when the evidence of these witnesses is assessed in the light of medical evidence, it stands contradicted and is not supported by the medial evidence. It was found by Dr. Brijendra Kumar Shrivastava (P.W. 3) the deceased persons had only 3 injuries each on their body, but of which deceased Lokman had one injury which could be caused by hard and blunt object. No marks of dragging were found on the bodies of the two deceased persons. While the eye-witnesses are not corroborated by the medical evidence, the evidence of prosecution suffers from serious contradictions, making them unreliable. Their Lordships of the Supreme Court in Mangilal and others v. State of M.P. (1990 MPJR 331) have held that if the narration of the prosecution version is in contradiction with medical evidence, on crucial points then no reliance can be placed on such oral evidence. Further in the instant case, the eye-witnesses have named and implicated four persons in the offence, but the learned trial Court found than the prosecution evidence with regard to two accused persons was unreliable and shaky. They were acquitted by the trial Court. The evidence of eye-witnesses is also in direct contradiction with the medical evidence and in such circumstances, Supreme Court recent decision in S.N. Singh v. State of Gujarat ( AIR 1990 SC 1628 ) observed that when the witnesses have gone to the extent of implicating one accused falsely and when the evidence of eye-witnesses is contradicted, by medical evidence no conviction could be based on such evidence." 40. Ordinarily when the oral evidence is not supported by the medical evidence a doubt is created in the prosecution story. As stated earlier Shukla, J. found that allegations of assault by appellants Dule, Gangaram and Atmaram by 'Parsa' and appellants Sajjan, Gulab, Keshar and Kriparam by 'Lathi', did not find support from the medical evidence and for that purpose he took into consideration that no Lathi injury was found on the deceased and the injury which is likely to be caused by 'Parsa' i.e. 'generally deeper in the middle and tapering on both the ends' were also not found. It is relevant here to state that P.W. 16, Dr. Dindorkar, who conducted the postmortem examination, has clearly stated that in case the dead body is burnt then in that case injury caused by Lathi i.e. bruises cannot be located. It is relevant here to state that P. W. 1, Dr. Mimrot and P.W. 16, Dr. Dindorkar have clearly stated that the dead body was extensively burnt. This completely answer the submissions of the learned counsel regarding the absence of bruises on the person of the deceased. 41. The learned counsel for the appellants submitted that although appellants Dule, Gajraj and Atmaram are alleged to have given 'Parsa' blows to the deceased but injuries likely to be caused by 'Farsa' has not been found on the deceased. In their submission the doctors do not say that the incised wound found in the middle were deeper and tapering on both the ends. It is relevant here to state that P.W. 16, Dr. Dindorkar has specifically stated in para 15 of his evidence that the injuries found on the persons of the deceased could be caused by sword and 'Parsa' a sharp cutting weapon. In view of the aforesaid categorical statement of the doctors, I do not find any reason to hold that 'Parsa' injury was not found on the person of the deceased. It is relevant here to state that no suggestion was given to P.W. 16 Dr. Dhindorkar that the injury found on the person of the deceased could not be caused by 'Farsa'. Thus, I do not find any thing to infer that the oral evidence of the prosecution witnesses did not find corroboration from the medical evidence. 42. Now, I advert to the individual cases of the appellants. 43. Dhindorkar that the injury found on the person of the deceased could not be caused by 'Farsa'. Thus, I do not find any thing to infer that the oral evidence of the prosecution witnesses did not find corroboration from the medical evidence. 42. Now, I advert to the individual cases of the appellants. 43. Appellant No. 1 Dule Singh: According to the eye-witnesses P.W. 2 and P.W.8, appellant Dulesingh has assaulted the deceased with 'Farsa'. I have negatived the submission of the learned counsel for the appellant regarding the presence of 'Farsa' injury on the person of the deceased, I am of the view that oral evidence of the eye-witnesses have been supported by the medical evidence and in that view of the matter the prosecution has been able to prove its case beyond all reasonable doubt against this appellant. 44. Appellant No.2 Gulab : This appellant is alleged to have assaulted the deceased by 'Lathi' and according to P.W 8 by 'Farsa'. According to the evidence of P.W. 2, he saw from behind Gulab assaulting the deceased. Thus, according to one eye-witness Gulab was armed with 'Farsa' whereas according to another eye-witness, he was armed with 'Lathi'. P.W. 2, according to his own statement saw this appellant from behind. As such there is material contradictions regarding the weapon used by appellant and one eye-witness having seen him participating in the crime from behind, it would not be safe to sustain the conviction of this appellant on account of the aforesaid material contradictions. It is relevant here to state that P.W. 13, who also claims to be an eye-witness, but he has not stated any thing in his statement about this appellant assaulting the deceased. 45. As regards Appellants No.3 Gajraj Singh, it is relevant here to state that both the learned Judged concurred in their opinion and found that the prosecution has been able to prove its case beyond all reasonable doubt. For the reasons stated in the earlier paragraphs of this judgment, I am not competent to reopen his case. His appeal stands dismissed. 46. Appellant No.4 Kesu : According to P.W. 2 and P.W. 8 this appellant was armed with 'Lathi' although no 'Lathi' injury was found on the person of the deceased. However, absence of injury has been explained by the doctor. His appeal stands dismissed. 46. Appellant No.4 Kesu : According to P.W. 2 and P.W. 8 this appellant was armed with 'Lathi' although no 'Lathi' injury was found on the person of the deceased. However, absence of injury has been explained by the doctor. In view of the consistent evidence of the aforesaid witnesses, I am of the view that the prosecution has been able to prove its case beyond all reasonable doubt against this appellant. 47. Appellant No.5 Atmaram : According to P.W. 2, this appellant has assaulted the deceased by a sword as also 'Farsa'. However, according to P.W. 8, this appellant assaulted the deceased by a 'Lathi'. Another eye-witness, P. W.13, has not stated any thing about assault by this appellant. Further P.W. 2 in paragraph 31 of his evidence stated that he saw from behind, appellant Atmaram assaulting the deceased. Thus, there is material contradictions in relation to the appellant participating in the crime. There is contradictions between the evidence of P.W. 2 and P.W. 8 regarding the weapon used by this appellant and further P.W. 2 having seen this appellant from behind, I do not feel it safe to sustain the conviction of this appellant on the ground of material contradictions between the eye-witnesses. 48. Appellant No.6 Kriparam : According to P.W. 2 this appellant has given 'lathi' blow whereas according to P.W. 8, he caused the injury by 'Farsa'. P.W. 13, another eye-witness to the occurrence has not stated any thing about this appellant. I find this contradiction in the facts and circumstances of the case, to be material and consequently held that prosecution has not been able to prove its case beyond all reasonable doubt against this appellant. 49.Appellant No.7 Kalu Bhil: According to P.W. 2, this appellant has given sword blow whereas according to P. W. 8, he gave 'Lathi' blow to the deceased. Again this contradictions in the evidence of P.W. 2 and P.W. 8 become significant. In the facts and circumstances of the case this on account of aforesaid contradiction the appellant deserves benefit of doubt. 50. Appellants Nos. 8 and 9 Meharban Singh and Babusingh : Appeal of both the appellants stangs dismissed for the same reason as assigned for dismissal of the appeal of appellant No.3 Gajraj Singh. 51. In the facts and circumstances of the case this on account of aforesaid contradiction the appellant deserves benefit of doubt. 50. Appellants Nos. 8 and 9 Meharban Singh and Babusingh : Appeal of both the appellants stangs dismissed for the same reason as assigned for dismissal of the appeal of appellant No.3 Gajraj Singh. 51. Appellant No. 10 Sajjan Singh : Participation of this appellant in the crime with Lathi was seen by P.W. 2 from behind and P.W. 8 has also stated about his participation with Lathi. It was further stated by P.W. 2 that this appellant has stated that the deceased be set on fire, in case he is dead. In view of the specific statement made by this witness that this appellant asked to bum the dead body, the doubt created by the evidence of this witness being the appellant from behind, becomes insignificant. I am of the view that the prosecution has been able to prove its case beyond all reasonable doubt. 52. In the result, I concur with the learned Judges that the appeal of appellants Nos. 3,8 and 9 namely Gajraj Singh, Meharban Singh and Babu Singh deserves to be dismissed. I further in agreement with Shukla, J, allow the appeal of the appellants No.2 Gulab, Appellant No.5, Atmaram, Appellant No.6 Kriparam and Appellant No.7 Kalu. However, in agreement with the view of Chitre, J. I direct for dismissal of the appeal of Appellant No.1, Dule Singh, Appellant No.4, Kesu and Appellant No. 10 Sajjan Singh. 53. In the result, the appeal preferred by appellant No. 1 Dule Singh, Appellant No.3, Gajraj Singh, Appellant No.4, Keshu, Appellant No.8, Meharban Singh, Appellant No.9, Babu Singh and Appellant No. 10 Sajjan Singh, are dismissed and rest of the appellants are acquitted of the charges levelled against them. Bail bonds of the appellants, whose conviction has been sustained are cancelled and they shall surrender to serve out their sentences. The appellants whose conviction have been set aside shall be discharged of their bail-bonds.